Once Upon a Time, Consumers Had Standing

by Dennis Crouch (This is a long blog post about TM opposition standing - buried inside though is a roadmap for how Director Squires could administratively restrict IPR petitioner standing using the same Lexmark framework).

Professor Rebecca Curtin has filed her petition for writ of certiorari  seeking rights to challenge United Trademark Holdings' application to register RAPUNZEL for dolls and toy figures.  Curtin has a great case that the mark is generic. The problem with Curtin's case is procedural.  Curtin is a consumer, not a competing doll maker, and the Federal Circuit ruled that consumers do not have standing to oppose trademarks based upon their genericness, descriptiveness, or failure to function as a trademark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359 (Fed. Cir. 2025).

The statute allows opposition proceedings to be filed by "[a]ny person who believes that he would be damaged by the registration of a mark upon the principal register."  15 U.S.C. § 1063.  And, a textual approach would seem to allow consumer oppositions -- and even those who would read an implicit "reasonableness" into the statute ("reasonably believes he would be damaged"). Here, for instance, Curtin offered a clear basis for harm that is particularized to her as a longtime, avid collector of classic fairy-tale dolls and toy figures, including those depicting Rapunzel. She demonstrated that registration would reduce marketplace competition for Rapunzel products she collects, likely increase costs for such dolls, and chill the creation of new interpretations of the character that she values and seeks to add to her collection.

But, the Federal Circuit offered a narrow interpretation of the standing requirement  (eliminating consumer standing) that stems from a somewhat parallel situation in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).  The basic question to the Supreme Court is whether they intended the litigation standing requirements of Lexmark to extend to administrative actions before the USPTO.

Whether a party desiring to participate in an administrative agency proceeding, including a trademark opposition proceeding at the United States Patent and Trademark Office, must satisfy the zone-of-interests and proximate-causation tests set forth in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), for causes of action in federal court.

Curtin Cert Pet.  Curtin is a trademark law professor and so it's not surprising that the brief is well written.  Folks at Workman Nydegger (Salt Lake City) filed the brief with a team that included John Stringham, Matthew Barlow, David Todd, and Ryan Morris.