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Interesting TM decision out from the D.C. Circuit today, Aktieselskabet v. Fame Jeans Inc.

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The D.C. Circuit joins the 1st and 7th Circuits who have now all held that a party may introduce new issues in a § 21(b) district court action that were not brought before the TTAB.

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The Court also addresses pleading standards under Twombly at length, concluding that the Twombly decision has not altered or heightened traditional notice pleading standards.

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Bestseller has sold jeans outside the U.S. since 1990 under its Danish TM for “Jack & Jones” jeans. Fame Jeans filed a U.S. intent-to-use application for that mark in January 2004, with Bestseller applying for the mark in the U.S. in December 2004, but not having any clear sales in the U.S. before January 2004.

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Bestseller contested Fame’s application on likelihood of confusion grounds and the Court concluded that under § 2(d), an intent-to-use applicant (e.g., Fame) prevails over any opposer who began using a similar mark (in the U.S.) after the intent-to-use filing date. Bestseller’s confusion claim, however, withstands a motion to dismiss because it adequately alleged use analogous to TM use within the U.S.

Bestseller also adequately alleged a claim that Fame lacked a bona fide intent to use the mark.

However, Bestseller cannot allege common law fraudulent misrepresentation by Fame where it only alleges that the PTO relied on Fame’s misrepresentations and not that Bestseller itself so relied.

First, from this opinion, the TTAB looks like a practice run and one can apparently always call “do over” and try out new arguments before the district court. That seems like an unfortunate waste of time and money for those trying to resolve things before the TTAB. Second, the factual background of this case strongly suggests that Fame knew exactly what they were doing and that it was simply a cheap trick by a competitor. Do they really think anyone believes that they just happened to come up with the name “Jack & Jones” for jeans and had no idea that name was already in use internationally on jeans? What’s a little surprising is how far Fame has gotten with this tactic and how narrow Bestseller’s options are now. The moral may be that if you’ve got a mark outside the U.S. and you think you’ll ever want to move into U.S. sales you should quickly proceed to make a few U.S. sales, document them well, and get your U.S. TM application on file ASAP. Otherwise, any competitor can just adopt your mark for its products in the U.S. and you’ll have a long hard road to stopping them.

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