In this appeal Royal Crown raised three challenges: that the granting of the motion was procedurally improper, that the Board was required by the Administrative Procedure Act (APA) to render a reasoned decision on the merits, and that the disclaimers did not moot this appeal since Coca-Cola might file new ZERO applications in the future. The court, however, found that the Board did not abuse its discretion in granting the motion, and that entry of the disclaimer render this appeal moot.
Rule 2.133(a) allows the Board to grant amendments to an opposed application even with consent of the other party. RC offered no support for its argument that such motions are forbidden after trial, and the court found it “improbable” that the Board has no power to grant a motion entering a disclaimer when that is all the opposer seeks.
RC contended that because Coca-Cola did not concede whether ZERO is generic or merely descriptive, Coca-Cola may apply for other ZERO marks. The court observed that “litigation is conducted for the purpose of obtaining relief, not an advisory opinion.” Although such an advisory opinion might be useful to RC, that interest is “too speculative to invoke the jurisdiction of this court.”
And so the court dismissed the appeal.
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TTABlogger comment: So ends this decade long battle over the word ZERO. I’ll bet the total attorney fees for this case includes a lot of zeros.
Text Copyright John L. Welch 2020.