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Precedential No. 14: Noncommercial Use Defense to a Dilution Claim Unavailable in a TTAB Proceeding

The parties filed cross-motions for summary judgment in this consolidated opposition to registration of two marks -- GRAND AMERICAN EXPRESS and the mark shown below -- for "transportation services, namely, transporting passengers by means of a 19th century replica train." American Express claimed likelihood of confusion with and likely dilution of its family of AMERICAN EXPRESS marks. Applicant Gilad moved to add the affirmative defense of "noncommercial use" with regard to the dilution claim, but not until after moving for summary judgment on that issue. American Express Marketing & Development Corp. v. Gilad Development Corporation, 94 USPQ2d 1294 (TTAB 2010) [precedential].Timing of Applicant's Motion: American Express complained that Gilad's summary judgment motion was improper because it was based on a then unpleaded defense...continue to full post

Full post as published by The TTABlog on April 22, 2010 (boomark / email).