Tuesday, March 08, 2005

TTAB Dismisses "DOUBLE CHEW" Opposition For Failure To Prove Standing

Proving standing in a TTAB opposition is about as easy as stepping over a sidewalk crack, but Petra Pet failed to clear that hurdle in Petra Pet, Inc. v. Aspen Pet Products, Inc., Opposition No. 91154069 (February 17, 2005) [not citable]. Petra Pet opposed, on the ground of mere descriptiveness, the application of Aspen Pet Products, Inc., to register the mark DOUBLE CHEW for "rawhide chews for pets." (CHEW disclaimed).

Aspen 11" Double Chew

In its Notice of Opposition, Petra Pet claimed ownership of a pending application for the mark 2 CHEWS TO CHOOSE for "edible dog treats," and alleged that Aspen had threatened a lawsuit if Petra used the mark. Because Aspen would, in such a lawsuit, rely on the registration for DOUBLE CHEW, Petra claimed it would be damaged by registration.

The Board noted that "[t]he amount of evidence required to demonstrate that an opposer has standing is not onerous." A Section 2(e)(1) opposer must show merely that "it is a competitor or, at the very least, 'one who has a sufficient interest in using the descriptive term.'" (citing McCarthy on Trademarks and Unfair Competition, Sec. 20:11 (4th ed. 2004)). Opposer Petra established neither.

Petra's evidence consisted of documents concerning Aspen's design patent and copies of Aspen's advertising. Aspen, in its answer to the Notice of Opposition, did not admit that it threatened Petra, but merely said that "the correspondence speaks for itself." Petra failed to introduce the correspondence into the record.

Moreover, Petra did not allege that the opposed application had been cited as a bar to its pending application. "Obviously, the mere ownership of a pending application does not in itself provide standing to oppose other applications."

Consequently, because Petra proved neither that it is a competitor of Aspen nor "even that it has a sufficient interest in using the term" at issue, the Board dismissed the opposition for lack of standing.

The TTABlog has only the briefest comment: I'll be doggone!

Text ©John L. Welch 2005. All Rights Reserved.


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