U.S. Marine Corps v. Healy
| Decision Date | 25 April 2017 |
| Docket Number | 91215087 |
| Court | Trademark Trial and Appeal Board |
| Parties | U.S. Marine Corps v. Peter J. Healy |
THIS OPINION IS NOT A PRECEDENT OF THE TTAB
Phillip Greene, Esq., for the U.S. Marine Corps.
Peter J. Healy, pro se.
Before Quinn, Mermelstein and Lykos, Administrative Trademark Judges.
Lykos Administrative Trademark Judge:
Peter J. Healy ("Applicant") has filed an application to register the mark Marine One Down[1] in standard characters for "Computer game software for personal computers and home video game consoles; Computer game software for use with personal computers, home video game consoles used with televisions and arcade-based video game consoles Downloadable multimedia file containing artwork, text, audio video, games, and Internet Web links relating to fictional adventure entertainment; Interactive video game programs; Video game cartridges; Video game cartridges and discs; Video game discs; Video game software" in International Class 9.[2]
The U.S. Marine Corps ("Opposer") opposes registration of Applicant's mark on the grounds of (1) likelihood of confusion with Opposer's registered and previously-used marks, under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); (2) likelihood of dilution under Section 43(c) of the Trademark Act, 15 U.S.C. § 1125(c); (3) false suggestion of a connection under Section 2(a) of the Trademark Act, 15 U.S.C. § 1152(a); (4) deceptiveness under Section 2(a) of the Trademark Act, 15 U.S.C. § 1152(a); (5) deceptive misdescriptiveness under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1); and (6) misrepresentation of source under Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3). Opposer also alleges that Applicant has violated 10 U.S.C. § 7881 ("Unauthorized use of Marine Corps insignia.") (hereinafter may be referenced as the "Marine Statute") and 32 C.F.R. § 765.14[3] ("Unofficial use of the seal, emblem, names, or initials of the Marine Corps.") (hereinafter may be referenced as the "Marine Regulation"), which are the federal statutory and regulatory provisions governing civilian permission to use the "names" of the U.S. Marine Corps. We construe these allegations regarding the Marine Statute and Marine Regulation as a seventh claim, and as one asserting that Applicant lacks a bona fide intent to lawfully use the mark in commerce under Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051 and 1127.[4]
In the notice of opposition, Opposer asserts Notice of Opposition ¶ 1; 1 TTABVUE 5. We refer to the name Marine Corps, and the registered marks MARINE ONE and MARINES, specifically, as needed, based on the claim being discussed. The registered marks include the following, which as discussed infra, were properly made of record:
Applicant, in his answer, denied the salient allegations in the notice of opposition and asserted various affirmative defenses, including that Opposer lacks standing to bring the asserted claims and that Opposer's claims "have the intent and purpose of restraint and suppression of speech content in violation of Applicant's statutory and constitutional rights."[10] Affirmative Defense Nos. 2 and 7; 4 TTABVUE 5. Furthermore, Applicant's affirmative defenses, which were neither pursued during the trial of this proceeding, nor argued in his brief, are deemed waived. See Alcatraz Media v. Chesapeake Marine Tours Inc., 107 U.S.P.Q.2d 1750, 1753 n.6 (TTAB 2013), aff'd mem., 565 Fed.Appx. 900 (Fed. Cir. 2014). I. The Record
The record consists of the pleadings and Applicant's application file (see Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).[11] Opposer did not take any testimony but filed the following materials under notice of reliance:
Applicant neither submitted evidence nor took testimony during his assigned trial period. Nonetheless, Opposer, as plaintiff in this proceeding, bears the burden of establishing its standing and proving its claims.
Both Opposer and Applicant submitted briefs. However, in reaching our decision, we have not considered any statements made by either party in their briefs that are unsupported by evidence properly in the record. See, e.g., Saul Zaentz Co. v. Bumb, 95 U.S.P.Q.2d 1723, 1725 n.7 (TTAB 2010). See also Trademark Trial and Appeal Board Manual of Procedure ("TBMP") § 704.06(b) (Jan. 2017).
Before addressing the substantive matters before us, we make the following comment. Applicant devotes much of his brief to arguing that Opposer, in bringing the instant action, seeks to suppress Applicant's First Amendment rights "to market, with the benefit of trademark protection, a product in the creative entertainment arts ... ." Applicant's Brief, p. 2; 20 TTABVUE 3. The Board is an administrative tribunal empowered to determine only the right to register a mark. TBMP § 102.01 (citing Trademark Act Section 17, 15 U.S.C. § 1067; Trademark Act Section 18, 15 U.S.C. § 1068; Trademark Act Section 20, 15 U.S.C. § 1070; Trademark Act Section 24, 15 U.S.C. § 1092; Conolty v. Conolty O'Connor NYC LLC, 111 U.S.P.Q.2d 1302, 1309 (TTAB 2014); Blackhorse v. Pro-Football, Inc., 111 U.S.P.Q.2d 1080, 1082-83 (TTAB 2014). As such, the Board has no authority to determine whether Opposer has violated Applicant's First Amendment rights. See In re District of Columbia, 101 U.S.P.Q.2d 1588, 1602 (TTAB 2012) (), aff'd sub nom. In re City of Houston, 731 F.3d 1326, 108 U.S.P.Q.2d 1226 (Fed. Cir. 2013); Blackhorse v. Pro-Football Inc., 98 U.S.P.Q.2d at 1638 (citing TBMP § 102.01) (no authority to rule on the constitutionality of the Trademark Act on its face or as applied). For this reason, we have not considered Applicant's arguments regarding this issue.
II. Standing
The first substantive issue before us is standing. Standing is a threshold issue that must be proved by the plaintiff in every inter partes case. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 U.S.P.Q.2d 1058, 1062 (Fed. Cir. 2014). See also Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 U.S.P.Q. 185, 189 (CCPA 1982) ( ). Our primary reviewing court, the U.S. Court of Appeals for the Federal Circuit, has enunciated a liberal threshold for determining standing, namely that a plaintiff must demonstrate that it possesses a "real interest" in a proceeding beyond that of a mere intermeddler, and "a reasonable basis for his belief of damage." See Empresa Cubana Del Tabaco, 111 U.S.P.Q.2d at 1062 (citing Ritchie v. Simpson, 170 F.3d 1902, 50 U.S.P.Q.2d 1023, 1025-26 (Fed. Cir. 1999)). A "real interest" is a "direct and personal stake" in the outcome of the proceeding. Ritchie v. Simpson, 50 U.S.P.Q.2d at 1026.
Because Opposer has properly made of record the registrations for the mark MARINE ONE and others noted above, Opposer has established its standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 U.S.P.Q.2d 1842 (Fed. Cir. 2000); and Lipton Indus., Inc., 213 U.S.P.Q. at 189.
III. Substantive Claims
Opposer in its trial brief argued all seven of the substantive claims pleaded as grounds for opposing Applicant's applied-for mark. Opposer, as the plaintiff in this proceeding, bears the burden of proving each of its claims by a preponderance of the evidence. However, as explained further below, arguments are not evidence and the evidence that is properly of record is insufficient to carry Opposer's burden of proof for any of the available claims.
We begin with Opposer's Section 2(d) claim. In its brief Opposer focused on its three registrations for the mark MARINE ONE for the goods listed as "cups and mugs" in International Class 21, "occasion cards; picture cards; postage stamps; postcards and greeting cards; posters" in International Class 16 and "neckwear and shirts" in International Class 25. For the sake of completeness, in analyzing Opposer's Section 2(d) claim, we have also considered Opposer's two registrations for the...
To continue reading
Request your trial