Quite often, many litigants are pro se (representing themselves) in the Trademark Trial and Appeal Board (TTAB). Also quite often, many litigants do not take the procedural rules of the TTAB seriously. This is unfortunate, as the TTAB is a federal administrative court that hears serious questions of likelihood of confusion, trademark dilution, and fraud.
When the plaintiff in the TTAB does not take the requirements of a pleading seriously, and do not meet the requirements for a pleading (which is called a Complaint in many courts, but is either called a Notice of Opposition or a Petition for Cancellation in the TTAB), a Motion to Dismiss should be the first step a defendant takes.
Recently, there have been TTAB cases started by extremely insufficient pleadings. One case was only started with pictures and no real Petition for Cancellation filed. Another case was only started with the following Petition for Cancellation:
“1. Petitioner has standing to oppose the Registered Mark, as it has a direct and personal stake in the outcome; and
2. Petitioner has a reasonable belief in fact that: (a) Petitioner’s mark was used in commerce at an earlier date and therefore has Priority; and (b) continued allowance of the Registered Mark to exist will continue to cause a likelihood of confusion to the general public and will continue to dilute Petitioner’s mark.”
A motion to dismiss for failure to state a claim is a test solely of the legal sufficiency of the complaint. To withstand a motion to dismiss for failure to state a claim in a Board opposition proceeding, the opposer need only allege such facts in the notice of opposition as would, if proved, establish that (1) it has standing, and (2) a valid ground exists for opposing the subject application. Lipton Industries, Inc. v. Ralston Purina Co. , 670 F.2d 1024, 213 USPQ 185, 187 (CCPA 1982). Specifically, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In particular, a plaintiff need only allege “enough factual matter … to suggest that [a claim is plausible]” and “raise a right to relief above the speculative level.” Totes-Isotoner Corp. v. U.S., 594 F.3d 1346, 1354 (Fed. Cir. 2010).
The problem is that those facts just don’t exist in either described filing. Even in the Petition quoted above, counsel for the plaintiff uses the word “dilute” when no trademark dilution is even pleaded. So it is important that a Motion to Dismiss be the defendant’s first move in cases like these, because if a faulty pleading (be it a Petition for Cancellation or a Notice of Opposition) is allowed, then the TTAB has the right to read it as correctly plead. If the plaintiff is unable to plead the case properly, then it should be dismissed. This recommendation is not made lightly, but it is made to help the defendant end the case early.
About Me
Recent Posts
- Defending the Trademark Infringement Lawsuit: Have You Prepared to Lose?
- Pornhub Sends a Cease-and-Desist Letter to a Restaurant
- What are some popular toy patents?
- How to Respond to a Higbee & Associates Copyright Demand Letter
- Video Blog: Super Bowl Time! Here are some trademark facts from a lawyer who has fought the NFL several times in court over trademark matters.
Archives
- September 2023
- August 2023
- July 2023
- June 2023
- February 2023
- September 2022
- August 2022
- January 2021
- December 2020
- June 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- January 2019
- December 2018
- October 2018
- September 2018
- August 2018
- February 2018
- December 2017
- September 2017
- August 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- May 2016
- March 2016
- February 2016
- November 2015
- October 2015
- September 2015
- August 2015
- June 2015
- April 2015
- December 2014
- October 2014
- September 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
Recent Comments