TTAB Grants Summary Judgment Motion, Tossing Out Genericness, Section 2(b), and Fraud Claims

The Board granted Respondent UCRP's motion for summary judgment, tossing out Petitioner Coalition's three claims: genericness, violation of Section 2(b) [insignia of the United States], and fraud, in connection with the logo mark shown below for "maintaining a registry of motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies engaged in interstate transportation" [UNIFIED CARRIER REGISTRATION PLAN disclaimed]. The Board's decision was a mere six-pages long, which makes one wonder: WYHPFC? Small Business In Transportation Coalition, Inc. v. Unified Carrier Registration Plan, Cancellation No. 92083760 (September 25, 2025) [not precedential].

Genericness: Coalition alleged that “UCR” in Respondent UCRP’s mark is generic and, because “UCR” is not disclaimed in Respondent’s Registration, the registration should be cancelled. However, because the challenged registration is more than five years old, a claim that only part of a mark is generic is time barred and therefore fails to state a claim upon which relief can be granted. 15 U.S.C. § 1064(3); Montecash LLC v. Anzar Enters., Inc., No. 92051768, 2010 TTAB LEXIS 133, at *6-7 (TTAB 2010) (“The Board has held that Section 14(3) provides for a claim of cancellation on the ground of genericness with respect to a registration more than five years old only if it is alleged that the mark as a whole is generic.”) (emphasis by the Board).

Section 2(b): In response to the motion for summary judgment, Coalition withdrew its Section 2(b) claim, but without UCRP's consent. Trademark Rule 2.114(c), 37 C.F.R. § 2.114(c), provides that after an answer is filed, the petition for cancellation may not be withdrawn without prejudice except with the written consent of the respondent. So, the Board dismissed the claim with prejudice.

Fraud: Coalition alleged that UCRP committed fraud by knowingly misidentifying itself in its application as a “nonprofit entity” and that this was a “material representation[]” that the USPTO relied on in issuing the registration. No way, said the Board. "The alleged misidentification of Respondent’s entity type as 'a nonprofit entity' does not constitute a basis for a fraud claim because such a misstatement, standing alone, was not material to the USPTO’s determination to issue a registration."

Coalition argued in its brief that UCRP committed fraud because UCRP “did not legally exist at the time Respondent’s trademark application was filed” and “[i]f the applicant does not own the mark on the application filing date, the application is void.” However, Coalition did not plead this basis for a claim of fraud in its petition for cancellation. The Board does not consider motions for summary judgment or responses thereto on unpleaded grounds. End of that story.

Conclusion: The Board denied the petition for cancellation.

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TTABlogger comment: Well, would you have petitioned for cancellation?

Text Copyright John L. Welch 2025.