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Precedential No. 17: TTAB Dismisses Bayer "FLANAX" Cancellation Claims - No Famous Marks Exception in US Law

Flummoxed by Bayer's three attempts to properly plead its claims, the Board granted three-fourths of Registrant Belmora's motion for dismissal for failure to state a claim upon which relief may be granted. Bayer lost its Section 2(d) and its fraud claim by failing to allege prior use of its mark FLANAX in the United States by itself or by someone on its behalf. Bayer's claim under Article 6bis of the Paris Convention was jettisoned because the Convention is not self-executing and Section 44 of the Trademark Act does not afford the owner of a foreign trademark a separate basis for cancellation under a "famous mark" theory. However, Bayer did manage to scrape through with its claim under Section 14(3) that by copying the FLANAX mark and packaging, Belmora misrepresented the source of its goods...continue to full post

Full post as published by The TTABlog on April 24, 2009 (boomark / email).