Law Students

The Crash Dummy Movie, LLC. v. Mattel, Inc.

By atharkhan

Opinion: www.cafc.uscourts.gov/opinions/09-1239.pdf

Notes:

• Abandonment of a trademark is a question of fact, which this court reviews for substantial evidence. The substantial evidence standard requires this court to ask whether a reasonable person might find that the evidentiary record supports the agency?s conclusion. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency?s finding from being supported by substantial evidence.
• In addition, this court reviews evidentiary rulings for an abuse of discretion. This court reverses the Board?s evidentiary rulings only if they: (1) were clearly unreasonable, arbitrary, or fanciful; (2) were based on an erroneous conclusions of law; (3) rest on clearly erroneous findings of fact; or (4) follow from a record that contains no evidence on which the Board could rationally base its decision.
• A registered trademark is considered abandoned if its use has been discontinued with intent not to resume such use. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. A showing of a prima facie case creates a rebuttable presumption that the trademark owner has abandoned the mark without intent to resume use. The burden then shifts to the trademark owner to produce evidence that he either used the mark during the statutory period or intended to resume use. The burden of persuasion, however, always remains with the challenger to prove abandonment by a preponderance of the evidence.
• Cancellation of a trademark registration does not necessarily translate into abandonment of common law trademark rights. Nor does it establish its owner’s lack of intent to use the mark.
• The business records exception allows admission of records of regularly conducted activity through the testimony of a custodian or other qualified witness.

Full post as published by Atharkhan on April 26, 2010 (boomark / email).