CAFC tackles standing issue in trademarks in AUSTRALIAN THERAPEUTIC v. NAKED TM, LLC

The outcome


The Trademark Trial and Appeal Board determined
that Australian Therapeutic Supplies Pty. Ltd. (“Australian”) lacks standing to petition for cancellation of a trademark registration. The Board reasoned that Australian
could not show an interest in the cancellation proceeding
or a reasonable belief of damage because it had contracted
away its proprietary rights in its unregistered marks. We
disagree. An absence of proprietary rights does not in itself
negate an interest in the proceeding or a reasonable belief
of damage. We hold that a petitioner seeking to cancel a
trademark registration establishes an entitlement to bring
a cancellation proceeding under 15 U.S.C. § 1064 by
demonstrating a real interest in the cancellation proceeding and a reasonable belief of damage regardless of
whether petitioner lacks a proprietary interest in an asserted unregistered mark. Because Australian has a real
interest in the cancellation proceeding and a reasonable belief of damage, Australian satisfies the statutory requirements to seek cancellation of a registered trademark
pursuant to § 1064. We reverse and remand.