On February 22, 2018, the Trademark Trial and Appeal Board decided RxD Media, LLC v. IP Applications Development LLC, Opp. Nos. 91207333 and 91207598 (TTAB 2018) [precedential], in which it dismissed RxD Media LLC’s opposition to a trademark registration application for the word “IPAD” for a slew of computer database, network, communication, and file management services.
The TTAB ultimately dismissed the opposition because RxD Media was unable to prove that its own unregistered mark was distinctive, which was a necessary component of its case in chief. The TTAB found that:
1. IP Applications Development, the applicant, could rely on its foreign registration application filing dates as its “constructive use dates,” setting the dates to beat at July 16, 2009 and January 25, 2010;
2. RxD Media’s own unregistered trademark was in fact for a composite mark, “IPAD.mobi,” not the standalone word “IPAD;”
3. RxD Media’s IPAD.mobi mark was merely descriptive of its service, which was basically an online notepad program; and
4. RxD Media’s use of the IPAD.mobi mark never reached the level of acquired distinctiveness (“secondary meaning”) under § 2(f) of the Trademark Act: “[U]nlike sites using the .com or .org gTLDs, the .mobi sites never became ‘mainstream.’” (I know, right?).
Additionally, to address the elephant in the room, the applicant was a subsidiary company of Apple, Inc.
This is all fine and good, but honestly, my favorite part is that roughly the first ten to fifteen pages of the 35-page opinion discusses the parties’ ineptitude with respect to TTAB procedure: the parties made numerous objections despite that none of the challenged evidence would affect the outcome, failed to use proper docket citations to reference their pleadings and exhibits, marked dozens of exhibits as confidential even though they were, uh, not confidential, and generally introduced a $#!T-load of irrelevant testimony, culminating in this curt, succinct, yet almost poetic quote from the U.S. Court of Appeals for the 7th Circuit:
“Judges are not like pigs, hunting for truffles buried in briefs.”
RxD Media, LLC, Opp. Nos. 91207333 and 91207598, at 5 (quoting United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991)).
Nice. I’ll need to work that into something one day.