TTAB reminds everyone who’s in charge

The TTABlog on what every TTAB practitioner knows: The Board still elevates form over substance in one really dumb way:

Several trademark practitioners on the INTA list-serv have asked why the Board doesn’t just take judicial notice of the information on the PTO’s own database? When one obtains a status-and-title copy of a registration, the PTO does nothing more than confirm what its database already says. So again, what’s the point?

It seems to me that at a minimum, the Board should recognize a rebuttable presumption that the PTO records are accurate and that the status and title of a registration is what the PTO’s database says it is.

I can’t argue with that. The requirement that to establish the existence of a mark, an opposer must submit a certified, status-and-title copy obtained form the PTO, is — as one of my favorite judges once said — a “horse and buggy” rule. The Board treats this, as one list-serv participant pointed out, more akin to a matter of jurisdiction (which a tribunal cannot ignore the lack of) than one of proof. In the case John writes about, the opposer submitted a photocopy of a printout from the database authenticated by an affidavit; the applicant hadn’t even raised the issue, but the Board on its own dismissed the opposition.

Why do judges (and their ilk) so frequently forget that lawyers are real people representing real clients who may very well have real legal issues that require fair adjudication, and not merely the generators of the paper from which they make their living?

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Author:Ron Coleman

I write this blog.

4 Responses to “TTAB reminds everyone who’s in charge”

  1. mh
    August 3, 2007 at 9:17 pm #

    You’re absolutely right about real people with real legal issues that require a fair hearing. I think the Board is usually very good about this though; examining attorneys, however, are another story entirely.

  2. August 3, 2007 at 11:27 pm #

    I think you have the slogan for a hit new reality tv show:

    Trademark Law
    “Real People Representing Real Clients with Real Legal Issues Requiring Really Fair Adjudication”

    Sponsored by the new TTAB Cola. So close to the real thing, you’d swear they stole the trade secret.

    Sorry, Ron. It’s late and the walk from the metro to my law firm in DC must have taken it’s toll on this trademark paralegal… keep up the good work!

    -John

  3. Bob Cumbow
    August 6, 2007 at 11:53 am #

    Has anyone considered the fact that the PTO gets a fee every time someone orders a certified copy of a registration?

    The issue may be not the PTO’s reluctance to recognize the validity of its own records, but its unwillingness to give up a source of revenue.

Trackbacks/Pingbacks

  1. LIKELIHOOD OF CONFUSION® » Blog Archive » Hormel canned - November 27, 2007

    […] Some interesting tidbits in this “non-precedential” (ugh) opinion: There’s a lot of technical wrangling regarding who pleaded and who waived what and when. We will leave that to John Welch to sort out.  Once again, the now-defunct, preposterous rule regarding the obscure form in which a trademark — which is part of not only the public record but the record of the very agency deciding these cases — comes up, but the TTAB, for a change, acknowledges that everyone in the room has accepted the record as submitted and does not punish anyone for violating it’s secret-handshake clause. Congratulations to the esteemable Allen W. Hinderaker, who won it for the yay team! […]