The Trademark Trial and Appeal Board, or TTAB, issued an interesting ruling at the end of 2018. The TTAB is in effect the forum providing review of decisions rendered by the US Patent and Trademark Office (USPTO) trademark examining attorneys. The case in question is Rebecca Curtin v. United Trademark Holding Inc (“UTH”).
UTH filed a trademark application for RAPUNZEL, to use in connection with toys and dolls. Rebecca Curtin is the mother of a young doll collector (or perhaps a doll collector herself) who, upon learning of the UTH application, began an online petition to keep “Rapunzel” in the public domain. Her online activism turned into legal action with the commencement of an opposition to UTH’s application. When UTH filed a motion to dismiss Curtin’s opposition based on the grounds that Curtin had no standing, she amended her complaint.
That’s where it got interesting. In her amended opposition, Curtin argued that she had standing because she is a consumer of dolls and toys of fairytale characters, including “Rapunzel”; that she has purchased and will continue to purchase such goods; and that she would be harmed by the decreased competition and availability of Rapunzel dolls should the name be registered as a trademark for dolls.
And the wild thing (to me, at least) is that the TTAB agreed that Curtin had standing. She was not a “potential” consumer of dolls. Opposers to applications no longer have to allege that they are competitors of the applied-for mark. She merely had to allege she an interest in the mark and would be adversely affected by its registration.
While she won standing, it should be noted that there were a number of arguments made by Curtin that did not pass the smell test at the TTAB:
- Opposer argued that the trademark is a functional trademark, such as the stripes that give the designer configuration of a product. The TTAB disagreed and dismissed that particular claim.
- Opposer brought a claim for fraud, saying that at the time that the toy company made its application, it knew that it did not have the exclusive rights to use the name Rapunzel. The TTAB did not find this argument convincing.
- Opposer claimed that Rapunzel is generic. The TTAB disagreed, saying that although Rapunzel might be descriptive of a fairy tale, the opposer did not demonstrate that it was generic for dolls.
If a party wishes to appeal a TTAB decision, it can seek review of the case through the federal judiciary, either by an appeal to the Federal Circuit or by commencing a new case in a district court, with one caveat: If a party wishes to move to district court for a new trial, it may take a lot longer (as it can be appealed again to another Circuit’s Court of Appeals); but, the district court can consider new evidence that is outside the scope of the record before the TTAB.
Curtin’s standing is a done deal. Now is the time for observers to pop some popcorn and wait to see which venue will be used — and more importantly, if any other consumers step up to voice their concerns against purported abuses of intellectual property law.
