Goats Remain on the Roof
Patent – Patently-O 2019-12-09
Summary:
by Dennis Crouch
Todd C. Bank v. Al Johnson’s Swedish Restaurant (Fed. Cir. 2019)
Al Johnson’s registered trade dress “consists of goats on a roof of grass.”
In the case, Mr. Bank petitioned to cancel the mark. Bank is not a competitor or customer. Rather, Mr. Bank is offended by the way that the mark demeans goats — denigrating the value that he (and society) places on the “dignity and worth of animals.” On the merits, Bank argued that the mark is functional and also disparaging to animal lovers. This second theory is no longer viable (if it ever were) under Matal v. Tam.
The patent statute allows for any person to raise an inter partes review (IPR) challenge of an issued patent. Trademark cancellation petitions are more limited — requiring the petitioner to “believe[] that he is or will be damaged” by the mark. Although the “belief” requirement appears quite broad and subjective, the court has created objective standards of reasonableness — requiring (1) a “real,” “legitimate,” and “personal” interest in the proceedings and (2) a “reasonable basis” for the belief of damage.