Thursday, July 20, 2017

TTAB Dismisses Section 2(e)(1) Opposition to BLUE COLLAR BREWERY Due to Lack of Standing

The Board put an end to Blue Collar Brewery, Inc.'s attempt to prevent Brew Collar Brewery, LLC from registering the mark BLUE COLLAR BREWERY for beer making kits and related goods [BREWERY disclaimed], finding that opposer failed to establish standing. The Board also dismissed opposer's claim that the opposed mark is deceptively misdescriptive under Section 2(e)(1), since applicant had disclaimed the purportedly deceptive word BREWERY. Two years ago, the Board tossed out opposer's bogus fraud claim on partial summary judgment. [TTABlogged here]. Blue Collar Brewery, Inc. v. Blue Collar Brewery, LLC, Opposition No. 91219820 (July 18, 2017) [not precedential] (Opinon by Judge Linda A. Kuczma).

Evidentiary ruling: Opposer objected to applicant's submission of certain webpages via notice of reliance because the pages did not include the url or the date. Citing the TBMP [which, by the way, is not the law - ed.], the Board dubiously found that these omissions were merely procedural, and opposer should have objected earlier so that applicant could correct the deficiencies.

Standing: Standing is a "threshold issue" that must be established in every inter partes case. The hurdle is low: "a plaintiff must demonstrate that he possesses a 'real interest' in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage."

For purposes of a claim under Section 2(e)(1) that a mark or term is deceptively misdescriptive, a plaintiff "need only show that it is engaged in the manufacture or sale of the same or related goods as those listed in the defendant’s involved application or registration and that the product in question is one which could be produced in the normal expansion of plaintiff’s business."

Opposer here claimed that BREWERY is deceptively misdescriptive of applicant's goods, and it need only to show an equal right to use the word for the goods in question. It need not prove proprietary rights in the term.

Opposer does not explain, either in its Notice of Opposition or otherwise, how it is or will be damaged by registration of Applicant’s mark. Neither does Applicant’s Answer and Affirmative Defenses include any ad missions regarding Opposer’s alleged business activities or Opposer’s interest in either BREWERY or the mark BLUE COLLAR BREWERY. Likewise, Opposer does not address its standing to bring the instant opposition in its Trial Brief.

The record lacked any evidence regarding "the nature of opposer's commercial activities or its interest in Applicant’s BLUE COLLAR BREWERY mark." And so the Board dismissed the opposition for lack of standing.

Deceptive Misdescriptiveness: Even had opposer proved standing, the Board would have dismissed the opposition on the merits. Marks that contain registrable matter in addition to deceptively misdescriptive components may be registered with an appropriate disclaimer of the deceptively misdescriptive matter. Here BREWERY is disclaimed, so it does not matter whether it is deceptively misdescriptive under Section 2(e)(1).

Accordingly, Opposer has failed to show that Applicant’s mark as a whole is deceptively misdescriptive or that consumers are likely to believe any misrepresentation occasioned by the wording BREWERY, BLUE COLLAR or BLUE COLLAR BREWERY contained in Applicant’s mark.

And so the Board dismissed the opposition.

Read comments and post your comment here.

TTABlog comment: BREWERY is part of the mark, and consumers aren't aware of any disclaimer of BREWERY. So why should a disclaimer of BREWERY avoid the Section 2(e)(1) bar?

Text Copyright John L. Welch 2017.


At 6:59 AM, Blogger Brad Salai said...

This doesn't seem like a good result to me. Deceptively misdescriptive marks are not registerable because they mislead the public. A disclaimer doesn't really change that.


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