Todd Bank’s effort to save the dignity of goats has reached the U.S. Supreme Court. The respondent in the case is Al Johnson’s Swedish Restaurant — a Door County Wisconsin mainstay. “Al Johnson’s is an authentic Swedish family owned restaurant where you can find goats grazing the sod roof.” [Goat Cam].
Al Johnson’s registered trade dress “consists of goats on a roof of grass.” When Bank petitioned the USPTO to cancel the mark, the TTAB refused — holding that Bank did not have standing to file the petition. On appeal, the Federal Circuit affirmed. Unlike the no-injury-required approach an AIA-review petitioner on the patent-side, the trademark law requires that a cancellation petitioner “believe that he is or will be damaged” by the mark’s registration. Here, Bank was not particularly injured, although he does claim to be disparaged by the mark:
The petition asks two questions – one on the merits and the other associated with sanctions from the court:
1. Whether Tam precludes disparagement as the basis of one’s standing under Section 14 of the Lanham Act, 15 U.S.C. § 1064, to challenge the validity of a trademark where the basis of the merits of the challenge, i.e., the challenger’s assertion as to why the mark is invalid, is unrelated to disparagement.
2. Whether a federal appeals court abuses its authority by sanctioning a party for arguing in favor of his position, even though: (i) the arguments and the position are meritorious; and (ii) the court claimed that the party had conceded that his position had been foreclosed by a decision of this Court, whereas the party, rather than having made such a concession, had argued that his position was not foreclosed by that decision.
In its decision, the Federal Circuit sided with the mark holder and then found the appeal frivolous. The court thus awarded cost and attorney fees to Swedish Restaurant.
Even though Mr. Bank appears pro se before us, he is an attorney and bears the commensurate obligations. Accordingly, we grant Swedish Restaurant’s motion for costs and attorney fees, including the costs and fees incurred in relation to the parties’ sanctions motions, and deny Mr. Bank’s motion for sanctions.