Cleveland Guardians Attack CLEVELAND SPIDERS for Clothing: Summary Judgment Motion Fails on Fraud, Succeeds in Part on Nonuse

Major League Baseball's Cleveland Guardians trace their history back to a 19th Century team called the Cleveland Spiders. Applicant Adam Barrington's application to register the mark CLEVELAND SPIDERS and the two marks shown immediately below, for various clothing items, was met with an opposition by the Guardians, who alleged, inter alia, fraud, nonuse, and likelihood of confusion with the registered marks CLEVELAND and C for clothing. The Guardians then moved for summary judgment on the fraud and nonuse claims, with limited success. Cleveland Guardians Baseball Company, LLC v. Adam Barrington, Opposition No. 91277995 (June 21, 2024) [not precedential].

Fraud: Applicant Barrington conceded that he never used two of his marks on sweaters, headbands, shorts, or team uniforms, and further that he used the marks on jackets, coats, and pants only after the filing of the corresponding two applications. The Guardians asserted that "[t]here can be no dispute that, at a minimum, [Applicant] acted with reckless disregard for the truth of the statements being submitted."

Barrington asserted that "[i]t was the Trademark Examiner . . . who wrote the more specific list of clothing items that is now recited in the Application.” Acting pro se, he "was simply following the lead and instructions of the Examiner, and Applicant had absolutely no ‘intent to deceive’ when filing, as alleged by Opposer.”

The Board concluded that the Guardians failed to show the absence of a genuine dispute of material fact for trial. "[A]t a minimum, there exist genuine disputes of material fact as to Applicant’s subjective deceptive intent to commit fraud on the Office. Opposer has not introduced any direct evidence of Applicant’s intent to deceive the Office, and Applicant has essentially denied such intent in his submitted affidavit."

And so, the Board denied the summary judgment motion as to the fraud claim.

Nonuse: The Board observed that "an entire application is not deemed void ab initio if the applicant made use on any of the listed goods at the time the use-based application was filed. Barbara’s Bakery, Inc. v. Landesman, Opp. No. 9115782, 2007 TTAB LEXIS 9, at *19 (TTAB 2007). Instead, the application is amended to delete the goods on which the mark had not been used."

Based on Barrington's concessions, the Board found that the Guardians has satisfied their burden to show that there were no genuine disputes of material fact remaining for trial with regard to its nonuse claim, and so the Board granted its motion for partial summary judgment as to nonuse vis-a-vis headbands, shorts, team uniforms, jackets, coats, and pants. It ordered that those goods be deleted from the subject applications.

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TTABlogger comment: A rather feeble attempt at summary judgment, don't you think? Seems like MLB teams think that all they have to do is throw their gloves on the TTAB field and they'll win. How many people do you think would confuse CLEVELAND SPIDERS with CLEVELAND? BTW: the Guardians included a Section 2(a) false connection claim. How many people would connect the mark CLEVELAND SPIDERS with the CLEVELAND GUARDIANS? What do you think a survey would show?

Text Copyright John L. Welch 2024.