Following a Trademark Trial and Appeal Board (TTAB) decision and corresponding Federal Circuit appeal finding that she did not have standing to oppose registration of a RAPUNZEL mark for dolls, Rebecca Curtin has filed a writ of certiorari with the Supreme Court of the United States. Curtin opposed the registration of United Trademark Holding’s RAPUNZEL mark for dolls and toys on the grounds that the mark was generic, descriptive, and failed to function as a trademark.
The primary question presented in the writ is what the proper test for standing is in front of administrative bodies like the TTAB. Both the TTAB and the Federal Circuit applied what is known as the Lexmark test to determine Curtin’s standing to oppose. This test requires a petitioner to show that their interests are within the “zone of interests” protected by the relevant statutory provisions. Applying this test, both the TTAB and Federal Circuit found that Curtin did not have standing, as the “zone of interests” protected by the portions of the federal trademark act relating to genericness, descriptiveness, and failure to function do not include consumer interests.
Curtin’s writ alleges that both the TTAB and the Federal Circuit wrongly applied Lexmark. Per Curtin, Lexmark established a holding applicable to standing in a judicial proceeding. However, past Federal Circuit precedent and several cases from separate circuits have held that the standing requirements in judicial proceedings are not applicable to administrative proceedings. Thus, Curtin argues that Lexmark is inapplicable to this action and that consumers should be allowed to bring such claims.
A decision in Curtin’s favor could potentially reshape the opposition process. Descriptiveness/genericness is an extremely common ground for refusal of an application. If consumers are allowed to allege such grounds in an opposition any time it impacts a product they buy frequently, the universe of potential opposers for trademark applications would widen significantly. Thus, businesses, especially those engaging in the production of ordinary consumer goods, should be watching these proceedings with significant interest, as the outcome may likely inform their future trademark filing strategy.
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