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  • The arguments made by opposer concerning applicant's asserted mark in defense of an infringement suit brought by applicant against him are opinions of law and not admissions of fact and thus cannot serve in this case as admissions against interest by opposer.
    • Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009)
      • The arguments made by opposer concerning applicant's asserted mark CAB CALLOWAY in defense of an infringement suit brought by applicant against him (i.e., that a personal name must have acquired distinctiveness before it can be exclusively appropriated as a trademark) are opinions of law and not admissions of fact and thus cannot serve in this case as admissions against interest by opposer.
  • The TTAB applies a seven factor test to determine whether it is appropriate in a given circumstance: (1) judicial acceptance of the previously asserted inconsistent position; 2) risk of inconsistent results; 3) effect of the party's actions on the integrity of the judicial process; 4) perception that the tribunal has been misled; 5) reliance by the opposing party; 6) prejudice to the opposing party's case as a result of the inconsistent position; and 7) the party against whom estoppel is invoked must have received some benefit from the previously taken position.
    • Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009)
      • The Board applies a seven factor test to determine whether it is appropriate in a given circumstance: (1) judicial acceptance of the previously asserted inconsistent position; 2) risk of inconsistent results; 3) effect of the party's actions on the integrity of the judicial process; 4) perception that the tribunal has been misled; 5) reliance by the opposing party; 6) prejudice to the opposing party's case as a result of the inconsistent position; and 7) the party against whom estoppel is invoked must have received some benefit from the previously taken position. Boston Chicken, 53 USPQ2d at 1055 (citing Harley v. Meonto Corp., 869 F.2d 1469, 10 USPQ2d 1138 (Fed. Cir. 1989) and Water Technologies Corp. v. Calco Ltd., 850 F.2d 660, 7 USPQ2d 1097 (Fed. Cir. 1988)).
  • The doctrine of judicial estoppel serves to prevent an unfair result by prohibiting a party from asserting a position inconsistent from one taken in a prior proceeding, and its application lies within the discretion of the court.
    • Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009)
      • The doctrine of judicial estoppel serves to prevent an unfair result by prohibiting a party from asserting a position inconsistent from one taken in a prior proceeding, and its application lies within the discretion of the court. Boston Chicken Inc. v. Boston Pizza International Inc., 53 USPQ2d 1053, 1055 (TTAB 1999) (citing DataGeneral Corp. v. GSA, 78 F.3d 1556, 1565 (Fed. Cir. 1996)).
  • Judicial estoppel may not be applicable where the parties are before a different tribunal, applying different legal standards, to determine different rights.
    • Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009)
      • Under the circumstances here, however, judicial estoppel is not applicable because the parties are before a different tribunal (court v. board), applying different legal standards (secondary meaning required for personal names v. no secondary meaning required for personal names), to determine different rights (use v. registration). Thus, because of the distinction between the proceedings there will not be an improper effect on the integrity of judicial proceedings and there is no perception that the tribunal has been misled. Accordingly, opposer's objections to Exhibits B, C and D attached to applicant's notice of reliance are sustained.
  • Prior statements of law are not admissions of fact, and cannot serve as admissions against interest.
    • Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009)
      • We first consider opposer's objection on the basis that these are legal arguments. Prior statements of law are not admissions of fact, and cannot serve as admissions against interest. See Interstate Brands Corporation v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 153-54 (CCPA 1978) ("But, because ‘that confusion is unlikely to occur' is a legal conclusion, it cannot be an ‘admission.' Facts alone may be ‘admitted.' In reaching the legal conclusion, the decision maker may find that a fact, among those on which the conclusion rests, has been admitted; he may not, however, consider as ‘admitted' a fact shown to be nonexistent by other evidence of record; nor may he consider a party's opinion relating to the ultimate conclusion an ‘admission.'").
Christopher Brooks v. Creative Arts By Calloway, LLC, Opposition No. 91160266 (TTAB 2009) Grand Total
Boston Chicken Inc. v. Boston Pizza International Inc., 53 USPQ2d 1053 (TTAB 1999) 1
DataGeneral Corp. v. GSA, 78 F.3d 1556 (Fed. Cir. 1996) 1
Harley v. Meonto Corp., 869 F.2d 1469, 10 USPQ2d 1138 (Fed. Cir. 1989) 1
Water Technologies Corp. v. Calco Ltd., 850 F.2d 660, 7 USPQ2d 1097 (Fed. Cir. 1988) 1
Interstate Brands Corp. v. Celestial Seasonings Inc., 576 F.2d 926, 198 USPQ 151 (CCPA 1978) 1
Grand Total 5 5
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