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?
Originally posted 2007-08-03 17:35:50. Republished by Blog Post Promoter