Likelihood of Confusion - The Right to Exclude Others From Use of a Mark



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  • A cancelled registration is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act, including the presumption of an exclusive right to use the mark.
    • In re Davey Products Pty Ltd., Serial No. 77029776 (TTAB 2009)
      • A cancelled registration is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act, including the presumption of an exclusive right to use the mark. See In re Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007); In re Hunter Publishing Co., 204 USPQ 957 (TTAB 1979).
  • Applicant's ownership of a now-cancelled registration of the mark does not establish applicant's right to exclude others from use of the mark.
    • In re Davey Products Pty Ltd., Serial No. 77029776 (TTAB 2009)
      • Contrary to applicant's argument, applicant's ownership of a now-cancelled registration of the mark (see discussion below) does not establish applicant's right to exclude others from use of the mark.
  • Applicant's mere assertion of common-law use of its mark for ten years is not in itself suffice to establish that applicant has any significant right to exclude others from use of the mark.
    • In re Davey Products Pty Ltd., Serial No. 77029776 (TTAB 2009)
      • Nor does applicant's mere assertion of common-law use of its mark for ten years in itself suffice to establish that applicant has any significant right to exclude others from use of the mark.
  • The eleventh du Pont factor concerns the extent to which applicant has a right to exclude others from use of its mark on its goods.
    • In re Davey Products Pty Ltd., Serial No. 77029776 (TTAB 2009)
      • The next pertinent du Pont factor raised by applicant is the eleventh, under which we consider evidence of the extent to which applicant has a right to exclude others from use of its mark on its goods.
In re Davey Products Pty Ltd., Serial No. 77029776 (TTAB 2009) Grand Total
In re Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007) 1
In re Hunter Publishing Co., 204 USPQ 957 (TTAB 1979) 1
Grand Total 2 2
No Statutes Listed

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