"Crash Dummies" survive CDM collision

William C. Rooklidge defended Mattel in a trademark challenge
brought by The Crash Dummy Movie, LLC.

The issue in the case came from a failure to file by Mattel:

While Mattel was developing new toys, the USPTO cancelled the
registrations for the CRASH DUMMIES marks on December 29, 2000, because Mattel
did not file a section 8 declaration of use and/or excusable nonuse for the marks.

The nub:

The only disputed issue before the Board was whether Mattel was entitled to claim common law trademark
rights to the CRASH DUMMIES marks predating CDM’s March 2003 filing date.

At the TTAB:

However, the
Board concluded that Mattel rebutted the presumption of abandonment of its common
law trademark rights by showing “reasonable grounds for the suspension and plans to
resume use in the reasonably foreseeable future when the conditions requiring
suspension abate.”

The substantial evidence standard was in play:

Abandonment of a trademark is a question of fact, which this court reviews for
substantial evidence. On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1087
(Fed. Cir. 2000). The substantial evidence standard requires this court to ask whether a
reasonable person might find that the evidentiary record supports the agency’s
conclusion. Id. at 1085. “[T]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).

Evidentiary rulings were at issue:

In addition, this court reviews evidentiary rulings for an abuse of discretion. Chen
v. Bouchard, 347 F.3d 1299, 1307 (Fed. Cir. 2003) (citation omitted). 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. Id. (citation omitted).

Common sense (recall KSR?) appears in the case:

Second, common sense supports the conclusion that Mattel would not have
recorded Tyco’s trademark assignment with the USPTO in 1998 unless it intended to
use the CRASH DUMMIES mark within the foreseeable future.