Latest Case This Week: Australian Therapeutic Supplies Pty., Ltd. v. Naked TM, LLC (Fed. Cir.)

Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Australian Therapeutic Supplies Pty., Ltd. v. Naked TM, LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1567

Opinion Date: July 27, 2020

Judge: Jimmie V. Reyna

Areas of Law: Intellectual Property, Trademark

In 2000, Australian started advertising and selling condoms with the marks NAKED and NAKED CONDOM in Australia. In 2003, Australian, through its website, began advertising, selling, and shipping condoms featuring its unregistered mark to customers in the U.S. Naked owns Registration No. 3,325,577 for the mark NAKED for condoms. The companies engaged in settlement negotiations. Naked asserts that email communications demonstrate that the parties reached an agreement whereby Australian would discontinue its use of its unregistered mark in the U.S. and consent to Naked’s use and registration of its NAKED mark. Australian filed a petition to cancel the registration of the NAKED. The Trademark Trial and Appeal Board determined that Australian lacked standing and could not show an interest in the cancellation proceeding or a reasonable belief of damage because it had contracted away its proprietary rights in its unregistered marks. The Federal Circuit reversed. An absence of proprietary rights does not in itself negate an interest in the proceeding or a reasonable belief of damage. A petitioner seeking to cancel a trademark registration establishes an entitlement to bring a cancellation proceeding under 15 U.S.C. 1064 by demonstrating a real interest in the cancellation proceeding and a reasonable belief of damage regardless of whether the petitioner lacks a proprietary interest in an asserted unregistered mark.