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Archived updates for Tuesday, October 10, 2006

Appropriations Bill Does Not Override Trademark Act

Thanks to JurisNotes for pointing to Last Best Beef, LLC v. Dudas (E.D. Va. September 27, 2006) where trademark applications were suspended by the PTO after the President signed an appropriations bill in November 2005 that included language prohibiting the registration of any trademark of the phrase "The Last Best Place." The court granted summary judgment in favor of LBB because Congress failed to expressly suspend provisions of the Lanham Act with respect to the phrase "Last Best Place." According to Judge Lee,

There is nothing in either Section 206 or the Lanham Act
that allows the USPTO to cancel a Notice of Allowance and suspend pending trademark applications. The government argues that, in reality, it has only "frozen" these applications. The USPTO has thus improvised a new term in the lexicon
of trademark law and has derived new authority, only on the basis of the enactment of Section 206, to freeze" pending trademark applications. This action by the USPTO highlights the inadequacy of section 206 as valid legislation. Section 206 prohibits registration of the phrase "Last Best Place" but it fails to specify or provide any insight as to how the USPTO should defer, dismiss, or suspend any applications currently pending for registration of that phrase. Furthermore, Section 206 does not grant the USPTO any rule-making authority with respect to the phrase. Nonetheless, the USPTO persisted in a series of actions, cancelling trademark applications, cancelling Notices of Allowances, and finally suspending or "freezingn other
pending applications, despite having no clear mandate to do so. The USPTO, thus, committed a clear error in judgment" by improvising a system of cancellation and suspension of pending trademark application6 wichout the legal authority to do so.
According to the TTABlog, the bill at issue was sponsored by Montana Senator Conrad Burns, who publicly asserted that the mark THE LAST BEST PLACE "belongs to the State of Montana." Read the article from the Missoulian here.
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