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8 May 2019

Chicago Cubs persuade TTAB to reject ‘Cubnoxious’ mark

Major League Baseball (MLB) team the Chicago Cubs have persuaded the US Patent and Trademark Office (USPTO) to refuse registration of the ‘Cubnoxious’ trademark on the grounds of lack of intent to use.

Ronald Mark Huber applied to register the word mark in 2016 in class 25 for shirts. In response, the Cubs asserted a number of marks for the team name and logo for various goods and services, including clothing.

In its decision, issued on Friday, May 3, the USPTO’s Trademark Trial and Appeal Board (TTAB) ruled that Huber had failed to provide sufficient evidence of intent to use the mark at the time of filing the application.

Apart from the trademark application itself, Huber did not provide any documentary evidence of his intention to use the mark other than an affidavit, which stated his “plan to use the mark in commerce for the general public”.

Huber did not specify a date for intended use, the TTAB said.

According to the board, the evidence suggested that Huber had merely applied to register the mark in order to reserve it for “potential future use”.

Although the Cubs’ application to deny registration of the mark was accepted on the grounds of lack of intent to use, the TTAB also considered the team’s arguments in favour of a likelihood of confusion.

The Cubs submitted strong evidence for use of its marks and their reputation, and all of the asserted marks covered shirts, the TTAB found.

“Given the similarity of [the Cubs’] strong marks to Applicant’s mark, and the overlap of their goods that move in some of the same channels of trade to the same classes of consumers, we conclude that confusion is likely,” the ruling said.

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