| If an application is filed in the name of a non-existent entity or under
an applicant's trade name, the application may be amended to correctly
identify the applicant. See TMEP Sections 1201.02(c)(1) and
1201.02(c)(7). The evidence that applicant submitted during ex parte
prosecution of its application for Registration No. 2946931 establishes
that there is no genuine issue of material fact that there is no Florida
corporation named "Carlson,Jody,E" (or Jody E. Carlson) and that Key
West Bed and Breakfast is a fictitious name for Popular, which is
registered with the Secretary of State of the State of Florida under
which Popular does business. Accordingly, notwithstanding that such
application was filed by a non-existent entity that has the same name as
Popular's president and that the identity of that applicant was then
amended to the proper applicant's trade name, i.e., another non-existent
entity, there is no genuine issue of material fact that the application
for Registration No. 2946931 is not void ab initio and that the
applicant was merely misidentified in that application. FN4. The circumstances in this case are distinguished from Huang v. Tzu Wei Chen Food Co. Ltd., 849 F.2d 1458, 7 USPQ2d 1335 (Fed. Cir. 1988), upon which petitioner relies in support of its claim that the application for Registration No. 2946931 is void ab initio. In Huang, the application at issue was filed by the mark owner's president as an individual, two days after ownership of that had transferred to a newly formed corporation. Here, the application was filed by a non-existent Florida corporation that has the same name as Key West's president. Because the identification of the applicant as a corporation with the same name as the applicant's president created an inconsistency, allowance of the amendment to correct this inconsistency was appropriate. See TMEP Section 1201.02(c)(3). |
Bonus question: The TTAB commented that "Indeed, based on the evidence that was submitted during ex parte prosecution of the application for Registration No. 2946931, the identity of the applicant for that registration could have, and at least arguably should have, been amended to The Popular House, Inc., during ex parte prosecution of that application." Here's the evidence: What do you think, if you were the examining attorney would you have caught it?
Key West Innkeeper's Association, Inc. v. The Popular House, Inc., Cancellation No. 92048825 (TTAB March 17, 2010). It's an old decision; not sure why Westlaw popped it out now.
The text of this work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.
0 comments:
Post a Comment