Monday, March 22, 2010

CAFC Affirms TTAB Summary Judgment in 2(d) Farm Boy Design Dispute

In a precedential ruling, the U.S. Court of Appeals for the Federal Circuit affirmed the TTAB's decision granting summary judgment in Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., Opposition No. 91182173 (April 17, 2009) [not precedential]. [TTABlogged here]. The Board had found Applicant FF's mark shown to the right, for retail grocery store services, not confusingly similar to the six registered marks shown below, for various food items, including sausage, barbequed pork, and various other swine-related products. Odom's Tennessee Pride Sausage, Inc. v. FF Acquisition, L.L.C., 93 USPQ2d 2030 (Fed. Cir. 2010). [mp3 of oral argument here].

The court agreed with the Board that "even if all other relevant DuPont factors were considered in Odom’s favor, ... the dissimilarity of the marks was a sufficient basis to conclude that no confusion was likely." It rejected Odom's argument that the Board had improperly dissected the marks in its Section 2(d) analysis, and it agreed with FF that Odom could not rely on its unpleaded common law marks to show likelihood of confusion.

TTABlog observation: The Board used the spelling duPont, while the CAFC used DuPont. I prefer du Pont [with a space]. Which is correct?

Text Copyright John L. Welch 2010.


At 8:52 AM, Anonymous Rob said...

In essence, the Court says that evidence submitted to the Board in support of an unpleaded issue, may or may not be deemed tried by consent. If it's simply all up to the Board, and the Court offers no guidelines of its own, then what makes this decision precedential?

More importantly, the Court says that when it comes to consideration of matters that are unpleaded but uncontested, "the [TBMP] language is permissive and does not require the board to do so." That statement may have been somewhat convincing if the standard of review was for clear error or abuse of discretion. But the Court itself notes that the standard of review is de novo. So if the Court's review is nondeferential, what difference does it make whether the Board properly followed its own manual of procedure or not?

The lesson is, if a party loses its case before the Board on a procedural issue, a District Court may offer more help than the CAFC, as pleadings and testimony periods are reopened.

At 10:26 AM, Blogger Robert said...

From DuPont's webpage: "The DuPont Oval Logo, DuPont™, The miracles of science™ and all products denoted with ® or ™ are registered trademarks or trademarks of E. I. du Pont de Nemours and Company or its affiliates." Throughout its webpage DuPont uses "DuPont" as a shorthand reference to itself. So I suppose you could accurately use either DuPont or du Pont.


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