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CAFC Updates


By June 1, 2022No Comments

Tiger Lily, a company with no corporate affiliation to Lehman Brothers (which filed for bankruptcy in 2008) or Barclays (to whom Lehman Brothers assigned all of its trademarks and accompanying goodwill), filed an application for registration of the standard character mark LEHMAN BROTHERS for beer and spirits. A few months later, Barclays filed an application to register the standard character mark LEHMAN BROTHERS for use in connection with various financial services. And not long after that, Tiger Lily filed an application for registration of the same standard character LEHMAN BROTHERS mark for bar services and restaurant services. Barclays filed Notices of Opposition to Tiger Lily’s applications alleging likelihood of confusion, and Tiger Lily filed a Notice of Opposition to Barclays’ application alleging no bona fide intent to use the mark. Tiger Lily appeals from the Board’s decision sustaining the two Barclays oppositions and dismissing Tiger Lily’s opposition. According to Tiger Lily, Barclays abandoned its mark by allowing its registrations to expire and affirmatively disavowing its association with Lehman Brothers across all of Barclays’ businesses.  However, the CAFC finds that substantial evidence supports the Board’s conclusion that there has been no abandonment of the LEHMAN BROTHERS mark.  Because Tiger Lily knew that the LEHMAN BROTHERS mark has been used continuously in the course of winding up the affairs of a Lehman Brothers affiliated company, Tiger Lily essentially concedes that it cannot prove the “nonuse” element of its claim that the LEHMAN BROTHERS mark was abandoned under 15 U.S.C. § 1127.  With respect to likelihood of confusion, the CAFC notes that because the LEHMAN BROTHERS mark has achieved a high degree of fame, it is afforded a broad scope of protection, and finds that the Board’s findings with respect to the relevant DuPont factors were supported by substantial evidence in the record, and that Tiger Lily’s attempt to benefit from the fame of the LEHMAN BROTHERS mark plays a dominant role in the process of balancing the DuPont factors. The CAFC also finds that under the totality of the circumstances in this case, the Board’s finding that Tiger Lily failed to show a lack of bona fide intent by Barclays to use the LEHMAN BROTHERS mark commercially is supported by substantial evidence. Finally, Tiger Lily argues that the Board erred by failing to strike testimony from Barclays’ lawyer witnesses and that the Board afforded such testimony improper weight, but the CAFC finds that Tiger Lily offers no basis to conclude that the Board abused its discretion. Accordingly, the CAFC affirms the Board’s decision and dismisses Barclays’ cross-appeal.

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