Loglan Institute, Inc. v. Logical Language Group, Inc., 91-1254

• Decision Date: 28 April 1992
• Docket Number: No. 91-1254,91-1254
• Citation: 962 F.2d 1038
• Parties: The LOGLAN INSTITUTE, INC., Appellant, v. The LOGICAL LANGUAGE GROUP, INC., Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1038

962 F.2d 1038

22 U.S.P.Q.2d 1531

The LOGLAN INSTITUTE, INC., Appellant, v. The LOGICAL LANGUAGE GROUP, INC., Appellee.

No. 91-1254.

United States Court of Appeals,

Federal Circuit.

April 28, 1992.

Wesley R. Parsons, Adorno & Zeder, Miami, Fla., argued for appellant.

William F. Herbert, Staas & Halsey, Washington, D.C., argued for appellee.

Before PLAGER, Circuit Judge, SKELTON, Senior Circuit Judge, and LOURIE, Circuit Judge.

LOURIE, Circuit Judge.

The Loglan Institute, Inc. (Institute), appeals the final decision of the Trademark Trial and Appeal Board (Board) in Cancellation No. 18,026 (February 4, 1991). The Board granted The Logical Language Group, Inc.'s (Language Group) motion for summary judgment, holding that the Institute's mark, LOGLAN, is generic and ordered the registration cancelled. We affirm.

BACKGROUND

In 1955, Dr. James Brown invented a "logical language" which was designed to test the theory that natural languages limit human thought. It has been described by Dr. Brown as "symbolic logic made speakable" which "derives its word-stock impartially from the eight most widely spoken natural languages and so is culturally and politically neutral as well as suitable for cross-cultural linguistic experimentation." Dr. Brown coined the word "Loglan" (derived from logical language) to designate the new language. He first used the term Loglan in a publication in 1956; several years later, in 1962, he formed the Institute to promote the development and use of Loglan. On August 17, 1987, the Institute applied for registration of Loglan as a Apparently unhappy with the Institute's progress in developing the language, a member of the Institute left and in November 1988 founded the Language Group. In February 1989, the Language Group published a newsletter regarding the progress of its logical language. In the newsletter, several references were made to Loglan, prompting the Institute to threaten the Language Group with a trademark infringement suit.

                mark for "Dictionaries and Grammars."   The registration issued on April 12, 1988
                

On May 23, 1989, the Language Group petitioned the Board to cancel the Institute's registration of the mark Loglan, alleging that Loglan is merely a contraction of, or generic name for a logical language. The Language group also contended that the application for registration had been fraudulently made, or, if a trademark ever existed for Loglan, the mark had been abandoned. After both parties moved for summary judgment, the Board granted the Language Group's motion and ordered cancellation on the ground that Loglan is "a generic designation identifying a language rather than a trademark to indicate the source of goods." Additionally, the Board found that the application had not been fraudulently made and that the abandonment issue was moot. The Board refused to consider the affirmative defenses raised by the Institute, stating that some were not within the Board's jurisdiction and others were not good defenses against a charge of genericness. The Institute argues here that the Board erred in holding that Loglan was a generic term and in refusing to consider the affirmative defenses.

DISCUSSION

A. Summary Judgment

The requirements for granting summary judgment in a trademark cancellation proceeding are the same as in any other case, viz., that there be no genuine issue of material fact and the movant be entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c) ¹; Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). We review the propriety of summary judgment de novo. National Cable Tel. Ass'n, Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1576, 19 USPQ2d 1424, 1427 (Fed.Cir.1991).

The parties agree that the factual issues underlying genericness are undisputed. Though genericness itself has been categorized as a question of fact, Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638, 639, 19 USPQ2d 1551, 1552 (Fed.Cir.1991); Dan Robbins & Assoc., Inc. v. Questor Corp., 599 F.2d 1009, 1014, 202 USPQ 100, 105 (CCPA 1979), the parties have each moved for summary judgment on that question. The Board considered the lengthy affidavits and numerous exhibits each party submitted in support of its motion, and concluded that Loglan was generic. Our review requires us to determine whether, based on the evidence of record, the Board was correct in that conclusion. After examining the record, we do not believe the Board erred in concluding that the Language Group was entitled to judgment as a matter of law.

B. Genericness

The Lanham Act provides for the cancellation of a mark which is or has become the generic name for goods or services. 15 U.S.C. § 1064(3) (1988). While a trademark registration has a presumption of validity, in a cancellation proceeding that presumption may be rebutted by evidence from the party seeking cancellation. Dan Robbins, 599 F.2d at 1014, 202 USPQ at 105. Before the Board, the Language Group presented numerous pieces of evidence to show that Loglan is used generically to designate a logical language.

The parties do not dispute that if Loglan is used generically to designate a language, the term cannot properly be registered The Institute argues that the relevant public does not perceive Loglan as generic, but rather sees it as indicating a single source of the language. The public's perception is the primary consideration in a determination of genericness. See In re Merrill Lynch, 828 F.2d 1567, 1569-70, 4 USPQ2d 1141, 1142 (Fed.Cir.1987); H. Marvin Ginn Corp. v. Int'l. Ass'n of Fire Chiefs, Inc., 782 F.2d 987, 991, 228 USPQ 528, 530 (Fed.Cir.1986).

                as a trademark for "dictionaries and grammars" any more than English can be registered for a dictionary.   That Loglan is not as well known as English is immaterial.   Because a language is not "goods" or "services" under the Act, 15 U.S.C. § 1127 (1988), a name originated for a new language is inherently not registrable for the language.   By the same token, a generic name of a language alone cannot function as a trademark to indicate origin of a dictionary describing that language.   Thus, our determination hinges on whether the Board was correct in concluding that the term Loglan is, "a generic designation identifying a language."
                

The Institute concedes that the relevant public is "the small group of persons who have written about the language or have been involved in the invented language research effort as well as those to whom the Loglan language has been or is being marketed." The Institute's definition of "relevant public" is consistent with this court's reading of the term as encompassing both "actual [and] potential purchasers of ... goods or services." Magic Wand, 940 F.2d at 641, 19 USPQ2d at 1553. Evidence of what the relevant public understands the term to mean may come from direct consumer testimony, surveys, dictionary listings, newspapers, and other publications. Merrill Lynch, 828 F.2d at 1570, 4 USPQ2d at 1143; Dan Robbins, 599 F.2d at 1014, 202 USPQ at 105. Although in many situations a survey is desirable to establish the public's perception, given the limited size of the relevant group here, the numerous examples submitted by the parties are sufficient to...