Federal Circuit affirms dismissal of opposition proceeding for lack of standing
July 11, 2007

In another nonprecediential ruling today, the Federal Circuit affirmed the TTAB's dismissal of an opposition filed against registration of the Dykes on Bikes mark.

There are two requirements to have standing to file an opposition with the TTAB. The would-be opposer must have "both a real interest in the proceedings and a reasonable basis for a belief that he would be damaged by its registration." Here, the parties did not dispute that the opposer, Michael McDermott, had a "real interest," what was lacking was reasonable belief he would be damaged by the registration.

In this case, there were two relevant ways to show the necessary belief of damage. First, the opposer could show "he possesses a trait or characteristic that is clearly and directly implicated in the proposed mark," or second, that "others also share the same belief of harm from the proposed mark," "demonstrated through surveys, petitions, or affidavits from public interest groups."

McDermott did not meet either test. Specifically, the court agreed with the TTAB "that the registration of the proposed mark would have no 'implications' for a man," and that "McDermott's opposition papers contain no allegations that his belief is shared by others and no reference to supporting evidence demonstrating such a shared belief."

As a result, the dismissal of the opposition for lack of standing was affirmed.

To read the full decision in McDermott v. San Francisco Women's Motorcycle Contingent, click here.

Coverage of earlier decisions regarding the Dykes on Bikes mark can be found at the TTABlog here (reporting on the TTAB's order dismissing McDermott's opposition for lack of standing), here (withdrawing § 2(a) disparagement refusal), and here (explaining the basis of, and predicting the withdrawal of, the § 2(a) refusal).

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