Finding petitioner's Section 2(d) claim time-barred and its Section 14(3) misrepresentation claim wholly deficient, the Board denied a petition for cancellation of a registration for the mark CAMP AWESOME for "child care services." Petitioner, alleging use of the name "Camp Awesum" since 2014, had filed two applications to register that mark for "providing camps for persons with intellectual or developmental disabilities services,” but the applications were blocked by Respondent O'Brien's 2015 registration. The Board was in O'Brien's camp. Camp Awesum, Inc. v. James M. O’Brien, Cancellation No. 92084926 (March 6, 2026) [not precedential] (Opinion by Judge Robert Lavache).
Likelihood of Confusion: The only ground for cancellation set out in the petition for cancellation (filed in April 2024) was likelihood of confusion under Section 2(d). However, since O'Brien's registration was more than five years old at the time the petition was filed, the Section 2(d) claim was barred by Section 14 of the Lanham Act. The Board observed that "[u]nder Trademark Act Section 14, a registration that has existed for at least five years on the Principal Register may be cancelled only for a very limited set of potential grounds, including genericness, functionality, abandonment, fraud, and misrepresentation of source." "Accordingly, Petitioner’s putative likelihood-of-conclusion claim is time-barred under Section 14(3) and we cannot consider it."
Misrepresentation of Source: In its petition for cancellation, petitioner did not mention its Section 14(3) misrepresentation claim. However, on the ESTTA cover sheet it checked the box for that claim (but not the Section 2(d) box).
Noting that a Section 14(3) claim for misrepresentation of source is not barred by Section 14, the Board pointed out this claim "refers to situations where it is deliberately misrepresented by or with the consent of the registrant that goods and/or services originate from a manufacturer or other entity when in fact those goods and/or services originate from another party."
[A] misrepresentation-of-source claim goes beyond mere likelihood of confusion and requires pleaded facts reflecting the respondent’s “deliberate misrepresentation” of the source of the petitioner’s services; the respondent’s “blatant misuse of the mark” in a manner calculated to trade on the goodwill and reputation of the petitioner; or conduct amounting to the respondent’s “deliberate passing-off” of the petitioner’s services as those of the respondent. Otto Int’l, 2007 TTAB LEXIS 62, at *9.
The Board found the record to be the devoid of any pleading, argument, or evidence pertinent to such a claim. "In fact, after selecting the relevant Section 14(3) misrepresentation-of-source claim in the ESTTA petition form, Petitioner did not again refer to the claim in the body of the petition, let alone plead the elements of the claim." In its briefs, petitioner again did not mention this claim. It addressed priority and various DuPont factors and stated that the issues were priority and likleihood of confusion.
[W]e find that this is a case of a “Section 2(d) claim masquerading as a misrepresentation-of-source claim.” Bayer, 2009 TTAB LEXIS 203, at *17 (cleaned up). Thus, the misrepresentation-of-source claim was not sufficiently pleaded and we may deny the petition for that reason alone. Alternatively, putting aside the insufficiency of the pleading, Petitioner otherwise waived the claim by failing to argue the claim in its brief.
And so, the Board denied the misrepresentation-of-source claim.
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TTABlogger comment: Successful Section 14(3) misrepresentation-of-source claims are few and far between. Last year's Plumrose decision is one example [TTABlogged here].
Text Copyright John L. Welch 2026.
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