Thursday, October 04, 2012

We'll always have Paris?

In IN RE MIRACLE TUESDAY, LLC the CAFC affirmed a decision of the TTAB.

From footnote 2 of the decision:

The phrase “primarily geographically deceptively misdescriptive” is a statutory term of art in the trade- mark context; we neither take responsibility for nor endorse the split infinitives or absence of necessary com- mas its use in this opinion requires.

"Substantial evidence" arises:

Whether a mark is primarily geographically deceptively misdescriptive is a question of fact. In re Save Venice N.Y., Inc., 259 F.3d 1346, 1351 (Fed. Cir. 2001). We review the Board’s factual findings for substantial evidence. In re Pacer Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003) (citation omitted). Substantial evidence is defined as “more than a mere scintilla” and “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” Id. (citation and internal quota- tion marks omitted).

Of fashion:

On appeal, Miracle Tuesday argues that the Board took an overly restrictive view of the word “originates.” Specifically, it argues that its designer – Mr. Klifa – has a significant connection with Paris and that customers are more interested in the designer’s origin than the origin of the goods themselves. In support of this position, Miracle Tuesday references red carpet events where interviewers ask celebrities “who are you wearing?” rather than “where was it made?”

Of scholarly articles:

Finally, Miracle Tuesday argues the Board failed to consider certain scholarly articles it submitted regarding consumer purchasing decisions and “country of origin” issues. Because the Board did not specifically refer to the articles in its decision, Miracle Tuesday assumes that they were not considered. According to Miracle Tuesday, the articles “show that customers are not necessarily concerned about the country of origin or country of manu- facture of a product, but other features of the product, which in this particular instance arguably includes ‘source’ of the designer, or ‘origin’ of the designer . . . .” Appellant’s Br. 24.

Plant Genetic Sys., N.V. v. Dekalb Genetics Corp., 315 F.3d 1335, 1343 (Fed. Cir. 2003) (“We presume that a fact finder reviews all the evidence presented unless he explic- itly expresses otherwise.”)


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