Friday, April 24, 2009

New England Patriots Lose TTAB Opposition Over 19-0 THE PERFECT SEASON

Followers of John Welch’s The TTABlog® are probably familiar with his ongoing series of decisions filed under the category of WYHA (“Would You Have Appealed?”). Well, after reading his write-up here on the TTAB’s recent precedential decision in Kraft Group LLC v. William A. Harpole, Opposition No. 91185033 (April 22, 2009) (precedential), there may be a new category – “Would You Have Opposed?”

Back on February 1, 2008, with the New England Patriots on the verge of becoming only the second team in NFL history to go undefeated, I wrote (link here) about the Section 1(b) intent-to-use applications filed on January 17, 2008, by Kraft Group, LLC (“Kraft”), the owner of the New England Patriots NFL franchise, for the marks 19-0 and 19-0 THE PERFECT SEASON. The same post also mentioned the earlier filed application to register the mark THE PERFECT SEASON 19-0 filed William Harpole on November 8, 2007, on the Supplemental Register.

Well, Harpole apparently figured out that he meant to file for registration on the Principal Register and that he could amend his application to be on the basis of intent-to-use on the Principal Register. Harpole’s application was published for opposition and Kraft promptly opposed.

In the TTAB opposition, Kraft attempted to argue that Harpole’s application was void ab initio or alternatively that the application's effective filing date must be deemed to be the date on which he amended the application to seek registration on the Principal Register (in April 2008 – well after Kraft’s applications were filed). The TTAB rejected Kraft’s arguments finding that Harpole's original application, even though it originally sought Supplemental Registration, nonetheless had all the information that was necessary to receive a filing date under Trademark Rule 2.21(a) and that the PTO’s Rules and Practices allow applicants the opportunity to provide information missing in the original application so that the mark can be registered without losing the original filing date.

Of course, one wonders why Kraft even bothered to oppose this mark at this stage – after all, by that time (as we all now know full well) all hopes of THE PERFECT SEASON 19-0 were dashed when the New York Giants defeated the New England Patriots in that year’s Super Bowl® brand championship football game. Perhaps Kraft was hoping to knock out Harpole’s application and keep its own applications alive in hopes that the team might pull off another perfect season in the three year time frame following the eventual Notice of Allowance (certainly they have a bona fide intent to achieve another perfect season, right?). Of course, as things stand, Kraft’s application will now be suspended until such time as Harpole’s application is either abandoned for failure to file a Statement of Use or until such time as Harpole files a Statement of Use and the mark registers (at which time Kraft’s application will most likely be rejected over Harpole’s then registered mark). So there is still the chance that Kraft's applications might be allowed eventually (does anybody really think that Harpole intends on putting out THE PERFECT SEASON 19-0 brand clothing?).

So I ask again, given the above – Would You Have Opposed?

And as a final sidenote, while no one has applied for 18-1 THE IMPERFECT SEASON (as noted by the TTABlog), there was no shortage of enterprising (but misdirected from a trademark perspective) persons who forsaw the possibility of the New England Patriots not having a perfect season.

One individual filed for 18-1 THE PERFECT UPSET on February 3, 2008, but the application went abandoned when no statement of use was filed. Another individual filed for 18-1 WORLD CHAMPIONS on February 4, 2008, but that application was also abandoned when no statement of use was filed. Same for 18 AND NO filed on February 4, 2008 – allowed but no statement of use. The New York Post had its three applications (mentioned in this article here) for 18-1 filed February 4, 2008 (here, here, and here), but all three have been abandoned. Which leaves only two applications pending: one company filed for 18-1 on February 4, 2008 (the application is currently suspended, but all cited pending applications have not been abandoned so it should be allowed to proceed) and the remaining applicant filed for WORLD CHUMPS 18-1 on February 21, 2008 (also suspended pending the outcome of the remaining 18-1).

And just because you don’t have a trademark registration for 18-1 for clothing goods doesn’t mean you can get out there and sell them anyway (although I don’t think any of these would qualify as 18-1™ brand clothing).

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