The CAFC pulled the plug on an appeal from a Board decision (here) that had dismissed a petition for cancellation of a registration for the mark shown below (comprising goats on a grass roof) for restaurant services. The Board ruled that Petitioner Todd C. Bank failed to allege sufficient facts that would establish his standing. The appellate court agreed and it dismissed this appeal and granted Respondent’s motion for an award of costs and attorney fees, finding the appeal to be frivolous. Todd C. Bank v. Al Johnson’s Swedish Restaurant & Butik, Inc., Appeal No. 2019-1880 (Fed. Cir. December 9, 2019) [not precedential].

In order to establish standing, a plaintiff in a TTAB proceeding must plead and prove facts showing that he or she has “a real interest in the proceedings and a reasonable basis for his [or her] belief of damage. “Typically, standing is not a demanding requirement.” Here, Petitioner Bank failed to plead a real interest and a reasonable basis for his belief of damage.

Bank sought to cancel the registration, alleging that the mark is “demeaning to” goats, and that in turn is offensive to Bank and “denigrates the value he [and others] place[] on the respect, dignity, and worth of animals.” The Board observed that, to the extent Bank relies on disparagement of himself, that argument must fail in light of the Supreme Court’s ruling that the disparagement clause of the Lanham Act is unconstitutional.

In any case, Bank failed to plead a real interest in the proceeding. He provided no basis, other than the precluded disparagement claim, to suggest that he had a direct and personal stake in the outcome of the proceeding.

Bank also failed to please “a reasonable basis for his belief of damage.” Although he asserted that the trade dress is “offensive to numerous persons,” including himself, because it was demeaning to goats, he failed to explain how that reason survives the ruling in Tam.

Respondent moved for its costs and attorney fees, and the Board granted the motion. The court noted that Bank had filed multiple petitions with the Board regarding the subject registration, all of which had been dismissed for, inter alia, standing. Bank also filed a groundless motion for sanctions. And despite being told by the TTAB that his disparagement claim was based on an unconstitutional and stricken section of the Lanham Act, he raised the issue again on appeal. The Board therefore concluded that this appeal was frivolous.

Because Bank lacked standing to bring the original cancellation petition, the CAFC lacked jurisdiction to review the appeal, and therefore it dismissed the case.

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TTABlog comment: In 2012, the “Goats on a Roof” registrations survived a similar attack brought by a photographer who claimed that the registrations would prevent him from placing goats on a grass roof and photographing them. TTABlogged here.

PS: I am informed that the prior proceedings referred to by the CAFC were cases in which Bank was the attorney, not the party, including the 2012 case just mentioned.

Text Copyright John L. Welch 2019.