Once in a great while, a precedential interlocutory ruling of the TTAB slips through the TTABlog crack. Here’s one from December 2015 (although I can’t understand why it earned the precedential label). The Board had denied (here) Respondent Knowluxe’s FRCP 12B(b)(6) motion to dismiss Guess?’s petition for cancellation of a registration for the mark shown below, for caps and t-shirts. Respondent likewise had no luck on this request for reconsideration of that ruling. Guess? IP Holder L.P. v. Knowluxe LLC, Cancellation No. 92060707 (December 9, 2015) [not precedential].


In its 12(b)(6) motion, Knowluxe argued that Guess?’s claims of likelihood of confusion and dilution were implausible and that the asserted trademark rights in a triangle design “conflict with the doctrine of aesthetic functionality and the prohibition against claims of trademark rights in gross.”

The Board pointed out that “[a] motion to dismiss for failure to state a claim concerns only one issue: the legal sufficiency of the pleaded claims.” The Board properly considered Knowluxe’s motion.

The Board’s denial of the motion to dismiss set forth the legal standard for determining the sufficiency of the pleadings, the requirements for properly pleading likelihood of confusion and dilution, and the allegations in the petition to cancel which satisfied those requirements. Nothing more was necessary to explain that Petitioner properly pleaded its likelihood of confusion and dilution claims. Respondent’s further arguments regarding matters other than the legal sufficiency of the claims were superfluous.

Respondent’s arguments were in the nature of defenses, but the standard for considering a Rule 12(B)(6) motion whether the complaint states a plausible claim for relief. The complaint met that standard.

The Board noted that respondent will have “the opportunity to assert any appropriate defense, develop the record, and argue the merits of its case, but consideration of the merits is premature at this juncture.”