CAFC Vacates and Remands TTAB's IBKÜL Decision: The KÜHL Registration It Relied On Was Cancelled

In its decision (here) finding likelihood of confusion between the mark IBKÜL (stylized) and the mark KÜHL, both for clothing items, the Board considered only one of four of Alfwear's registered marks. [TTABlogged here]. After the Board's decision, and while this appeal was pending, "the KÜHL mark was cancelled" (sic!) because Alfwear failed to file a Section 8 Declaration of Use. The parties agreed that this development "necessarily impacts the Board's finding." And so, the CAFC vacated and remanded "for the Board to reconsider its findings in light of the cancellation." IBKUL UBROT LTD. v. Alfwear, Inc., Appeal No. 2020-2120 (Fed. Cir. October 13, 2021).

Note that although the CAFC said "the KÜHL mark was cancelled," we all know that registrations are cancelled, not marks. It appears that Alfwear retains common law rights in that mark. Its other pleaded registrations are for the marks KUUL, KUHL, and KÜHL (in stylized form), all for various clothing items.

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TTABlogger comment: Will the Board allow more briefing? Oral argument?

Text Copyright John L. Welch 2021.