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Archived updates for Friday, September 15, 2006

One Man Cannot Stand in the Way of Those DYKES ON BIKES

In McDermott v. San Francisco Women's Motorcycle Contingent, Opposition No. 91169211 (September 13, 2006, earlier proceedings here), the U.S. Trademark Trial and Appeal Board held that, although the pro se opposer sufficiently pleaded a "real interest" in the proceedings, he did not have standing because he had failed to alleged facts which, if proven, would show he has a "reasonable" basis for his belief of damage.

The notice of opposition included the following relevant allegations:

I herewith state my opposition to the United States Patent and Trademark Office (USPTO) granting Any Trademark or other form of Government Approval or Endorsement to the Organization known as "Dykes on Bikes"; the Political
Term "Dykes"; or Any Other Group or Activity Associated with the Annual Illegal San Francisco Dyke Hate Riot; or the Criminal and Civil Rights Violations attendant to this Anti Male Hate Riot and March cited by "Dykes on Bikes" in its application. Statement of Harm:

I am a Male Citizen of the United States and a fourth generation native son of the City of San Francisco. As such, during the annual illegal government supported San Francisco Dyke Hate Riot; I and ALL other Male Citizens are subject
to Criminal Attack and Civil Rights Violations committed by "Dykes" taking part in this Anti Male Hate Riot, including attacks often led or inspired by members of "Dykes on Bikes".

...[M]y opposition falls in to[sic] two broad categories, reflecting the dual nature of the Harm from pandering to such "Dykes", whether on motorcycles or not.

1. The Ongoing Criminal and Civil Rights Violations committed by "Dykes on Bikes" and All Dykes who participate in the annual illegal Anti Male hate riot/takeover of public lands culminating in the illegal "San Francisco Dyke March";

2. The attempt to have the USPTO act as Political Agent of the Misandry Lobby, by granting approval to their uses of the term "Dyke", so as to provide them with Government Backing for Thought & Speech Policing throughout America....

The Endorsement by the Government of a Politically Correct definition and usage of the term "Dyke", and a corresponding disfavor for all other accurate if unflattering usage, is a clear
political goal of this Trademark application....

The term "Dyke" has long acknowledged the Misandry of those who choose to wear that title, and the deep obsessive hatred of Men and Male Gender traits that go with it. The attempt to use
this Trademark to further the goals of Separatist/Neo Exterminationist Misandrists ... as well as Sadists and Sado-Masochistic Bondage and Flogging Fanatics such as "Dykes on Bikes" leader Vic Germany, is a shameful abuse of the
trademark process.

In the case of a notice of opposition, an opposer must also satisfy two judicially-created requirements in order to have standing: (1) a "real interest" in the proceedings, and (2) a "reasonable" basis for his belief of his damage. The Federal Circuit the court interpreted the real interest prong as meaning that the opposer must plead “a direct and personal stake in the outcome of the opposition.” In applying this standard, it found that an opposer sufficiently pleaded a real interest in the case by alleging “that he would be damaged by the registration of the marks because the marks disparage his values, especially those values relating to his family;” that opposer was “a family man” who believes that the “sanctity of marriage requires a husband and wife who love and nurture one another”; that opposer was a member of a group that could be potentially damaged by marks that allegedly are synonymous with “wife-beater and wife-murderer” and that the marks are scandalous because they would “attempt to justify physical violence against women.” In re Ritchie, 50 USPQ2d at 1025 (Marks: O.J. SIMPSON, OJ, and THE JUICE)

With regard to the second prong, the court interpreted the "belief of damage" language in Section 13 as meaning that the belief must be more than a subjective belief, and held that the reasonableness of the belief could be demonstrated in various manners. The first method for an opposer to plead the requisite level of "reasonableness" is to allege that he possesses a trait or characteristic that is “clearly and directly implicated by the proposed trademark.” In other words, marks that contain terms that are allegedly offensive to a particular group may be challenged by members of that group.

The second method for alleging the reasonableness of an opposer's belief of damage is that others share the same belief of harm from the proposed trademark, and that the opposer is not alone in his belief of damage. The allegation of “objective evidence” could take place in various forms, including “surveys,” “petitions,” or “affidavits from public interest groups representing people who allegedly share the damage caused by the mark.”

According to the Board,

Opposer has failed to allege that he possesses a trait or characteristic that is inherently implicated by applicant's applied-for mark -- that is, that he is a "lesbian" or "dyke." Rather, as opposer alleges in the beginning of his notice of opposition, "I am a Male Citizen of the United States and a fourth-generation native son of the City of San Francisco." Applicant’s mark is therefore only subjectively offensive to opposer. Thus, similar to the plaintiff involved in Ritchie, the opposer in this case must resort to the second method for demonstrating the reasonableness of his belief of damage. In this regard, opposer has failed to make a sufficient leading.

A review of the notice of opposition shows that
opposer has failed to allege any facts that others (i.e.
men) share his belief of damage. All we can find
in the pleading is that opposer himself is personally
offended by the “illegal behavior” and “illegal acts”
purportedly committed by participants in applicant's parade services and that he objects to the USPTO’s supposed endorsement of applicant’s activities in approving applicant’s mark for publication. Opposer has not made any objective allegations regarding the reasonableness of his belief of damage, such as by alleging that he has obtained affidavits or signatures
on petitions, or conducted surveys that show, as required by Ritchie, that other men share his belief in damage if applicant's mark were to register. Opposer has throughout the notice of opposition referenced various excerpts from publications (i.e. articles, books, statements issued by applicant). However, none of the excerpts provides objective evidence that others who are members of opposer's
group (that is, men) would perceive applicant's mark as disparaging or offensive to men.

In addition, opposer's allegations regarding applicant’s conduct vis-à-vis men (e.g., allegations that applicant bans men from public streets and parks during the duration of applicant’s parade and that "large numbers of ‘Dykes on Bikes’ [use] THEIR MOTORCYCLES AS OFFENSIVE WEAPONS AGAINST MEN") do not constitute an objective pleading that other men concur with opposer's belief in damage. As to the litany of criminal or civil wrongdoings participants in applicant's parades purportedly have committed, the Board is not the proper venue for bringing such objections -- the Board’s jurisdiction is limited to determining whether trademark registrations should issue or
whether registrations should be maintained; it does not have authority to determine whether a party has engaged in criminal or civil wrongdoings.

Lastly, with regard to opposer’s allegations that the
USPTO, in approving applicant’s mark for publication, has given its stamp of governmental imprimatur, it is well settled that registration of a trademark reflects no endorsement by the USPTO of the applicant’s products or services. See In re Old Glory Condom Corp., 26 USPQ 1216 (TTAB 1993).

In sum, we find that opposer, by his allegations, cannot be considered more than a mere intermeddler in this case. On this basis, we find that opposer lacks the requisite standing to bring the instant opposition proceeding. Accordingly, applicant's motion to dismiss is granted, and the opposition proceeding herein is dismissed.

Ride with pride, ladies, ride with pride.
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