Kaszuba v. Hirshfeld (Supreme Court 2021) [Petition for Certiorari][FedCir Decision]
This pending petition for certiorari involves a trademark registration dispute between Kaszuba (HOLLYWOOD BEER) and Hollywood Vodka LLC (HOLLYWOOD VODKA). Kaszuba first registered his mark (albeit on the Secondary Register). Later, HVL was denied registration — in part because of the existence of the Kaszuba’s mark. HLV then filed a cancellation proceeding before the Trademark Trial & Appeal Board (TTAB). After a drawn-out process, the Board eventually sided with HLV—entering judgment against Kaszuba as a sanction for discovery violations.
I’ll note that neither of these brands stand-up to the more popular Hollywood Brewing Co. (Hollywood, FL). 
Kaszuba’s new petition for writ of certiorari to the U.S. Supreme Court asks three interesting questions:
- Whether the Federal Circuit erred in finding that Hollywood Vodka had standing under Lexmark and 15 U.S.C. § 1064.
- Whether the Federal Circuit err in allowing Intervention by the USPTO Director under, the patent law provision of 35 U.S.C § 143.
- Whether Administrative Trademark Judges are, for purposes of the Appointments Clause, Principal Officers who must be appointed by the President with the Senate’s advice and consent.
The second question is where plain error lies. In its decision, the Federal Circuit allowed the U.S. Gov’t to intervene in the case based upon Section 143 (Hollywood Vodka did not participate in the appeal). That section of the Patent Act does provide for intervention, but only specifically for appeals from the PTAB, and only in derivation, IPR, or post-grant review proceedings.
The Director shall have the right to intervene in an appeal from a decision entered by the Patent Trial and Appeal Board in a derivation proceeding under section 135 or in an inter partes or post-grant review under chapter 31 or 32.
Section 143 obviously does not provide authority for the PTO to intervene in an appeal from the TTAB. However, that may be harmless error as the Federal Circuit has previously allowed intervention in trademark cases. See In re Bose Corp., 580 F.3d 1240, 1243 (Fed. Cir. 2009) (“Because the original appellee Hexawave did not appear, the PTO moved, and the court granted leave to the Director, to participate as the appellee.”).
Note there are lots of brewing Hollywood TM disputes. Below is a screenshot of a few TM cases at the PTO.
It’s the Supplemental Register, not Secondary.
Been looking through the records. I wonder how Hollywood Brewing Co. was able to get their TM when Hollywood Beer had falsely declared they were in use in 2008, and Hollywood Vodka was actually in commerce in 2015, 3 years prior to Hollywood Brewing’s TM application? Something doesn’t seem right there.
One may pause to wonder if there were too many physical samples being consumed…
The real issue regarding this trademark dispute was that Kaszuba committed fraud to the Trademark Board. This is the reason that he did not provide discovery. Had he provided discovery he would have shown evidence that admitted to either fraud, or selling alcohol without permits, licensing, and federal label approval. Bottom line is Kaszuba was squatting on this Hollywood Beer trademark as he has with several others. He falsely declared it was in use, when it was not. Had it been in use he would have had a UPC, TTB Label Approval, it would have been licensed to do business, and it would have had a COLA approval(all legally required). Without these, Kaszuba would have been violating several ABC laws. Hollywood Vodka has been in commerce since 2016. His specimen is laughable. He simply glued a printed label on a New Castle bottle and tried to claim that was his product. He also back-tracked at one point and said he only sold a beer making kit and T-shirts, not actual beer(as to not incriminate himself). Another hilarious photoshopped knockoff was fraudulently submitted to the Trademark Attorney of this fictitious beer kit. That beer kit was a MR Beer kit, evidence showed. Kaszuba simply photsopped the ‘MR” off the MR Beer kit, absolutely infantile. MR Beer could potentially sue Kaszuba as well, for fraud and violations. It seems that the further Kaszuba takes this, the further he is in jeopardy of being exposed for his fraud and squatting on several trademarks. The trademark dispute would be an interesting conversation had it not been for the simple fact that Kaszuba has blatantly tried to deceive the Trademark Board and has been caught several times doing so. This seems criminal either way you look at it.
Trademarks not being my forte, but would not “Hollywood” need be disclaimed as a geographic descriptor?
While the errors may seem glaring, this does not strike me as the type of case that the Supremes would deign to entertain.
SCOTUS just took a pass on #3 in a TTAB case involving Coca Cola in yesterday’s orders list.
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