This morning the Federal Circuit issued two nonprecedential opinions in a Merit Systems Protection Board case and a trademark case. Here are the introductions to the opinions.
Green v. Office of Personnel Management (Nonprecedential)
Natalie Green petitions for review of a Merit Systems Protection Board (“Board”) decision that affirmed an Office of Personnel Management (“OPM”) decision terminating Ms. Green’s disability annuity payments and finding that she owed the government for overpayments she received after the termination’s effective date. We affirm.
Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC (Nonprecedential)
The Trademark Trial and Appeal Board determined that Australian Therapeutic Supplies Pty. Ltd. (“Australian”) lacks standing to petition for cancellation of a trademark registration. The Board reasoned that Australian 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. We disagree. An absence of proprietary rights does not in itself negate an interest in the proceeding or a reasonable belief of damage. We hold that 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 petitioner lacks a proprietary interest in an asserted unregistered mark. Because Australian has a real interest in the cancellation proceeding and a reasonable belief of damage, Australian satisfies the statutory requirements to seek cancellation of a registered trademark pursuant to § 1064. We reverse and remand.
WALLACH, Circuit Judge, dissenting.
The U.S. Patent and Trademark Office’s (“USPTO”) Trademark Trial and Appeal Board (the “Board”) concluded that Appellant Australian Therapeutic Supplies Pty. Ltd. (“Australian”) had “failed to prove that it has standing” under 15 U.S.C. § 1064 to petition for cancellation of Appellee Naked TM, LLC’s (“Naked”) registration of the trademark “NAKED (typed drawing) for ‘condoms,’” bearing the Registration Number 3,325,577. Australian Therapeutic Supplies Pty. Ltd., No. CANCELLATION 9205638, 2018 WL 6929683, at *1, *11 (T.T.A.B. Dec. 21, 2018). The Majority reverses and remands, holding that “the Board erred when it determined that Australian must have proprietary rights” to petition for cancellation under § 1064, and “that[,] based on the facts established before the Board, Australian has a real interest in the cancellation proceeding and a reasonable belief of damage, thereby satisfying the statutory requirements to seek cancellation” under 15 U.S.C. § 1064. Maj. Op. 11. Although I agree with the Majority that a party is not required to prove a proprietary interest, I do not agree that the Board required a proprietary interest from Australian or that Australian met its burden of proving a real interest and a reasonable belief in damages. Because I would affirm the Board’s determination, I respectfully dissent.