CAFC Upholds TTAB: Affirms Order for Cancellation of MOBILEBLACKBOX Registration for Audio Speakers on the Ground of Nonuse

In a brief, nonprecedential opinion, the CAFC affirmed the TTAB's decision of November 23, 2018 (pdf here) granting a petition for cancellation of a registration for the mark MOBILEBLACKBOX (Stylized) for "audio speakers for computers" and "analog and digital audio signal transmitters" on the ground that the mark was not in connection with the goods prior to the filing of the underlying application. Matey Michael Ghomeshi v. Strongvolt, Inc.., Appeal No. 2019-1850 (Fed. Cir. April 12, 2021) [not precedential] (Andrew Hirschfield, Director of the USTPO, Intervenor).

The Board found that Mr. Ghomeshi's purported sales of headphones did not qualify as "audio speakers," and even if they did, the only receipts proffered by Mr. Ghomeshi were for “samples.” He did not provide evidence that the mark was used on headphones or their packaging. Mr. Ghomeshi’s advertisement, which displayed the registered mark with headphones, was undated and did not include a means for ordering headphones.

As to analog and digital audio signal transmitters, the Board first concluded that a series of undated documents showing some transmitters bearing the mark and others not bearing the mark lacked probative value. A single receipt reflecting a sale of a transmitter did not show use prior to filing, or display the mark on the goods.

After the Board's decision, the petitioner corporation was dissolved. Mr. Ghomeshi argued that, as of its dissolution, petitioner StrongVolt "did not satisfy the statutory requirements to contest his registration." The CAFC rejected that argument, observing that there was no evidence that StrongVolt had stopped using its BLKBOX mark during its winding up period, during which period it had the right to litigate its claims. Moreover, since the dissolution came after the Board's decision, the court saw no reason to disturb the decision.

The CAFC found no error in several procedural rulings by the Board. Moreover, substantial evidence supported the Board’s conclusion that Mr. Ghomeshi failed to use his mark in commerce with audio speakers for computers prior to filing his registration, and it saw no error in the Board's rejection of his evidence of use of the mark for audio signal transmitters.

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TTABlogger comment: Seems like Mr. Ghomeshi should file a new application. Perhaps an I-T-U.

Text Copyright John L. Welch 2021.