Many of those who try to register trademarks in the US quickly discover that things are already crowded on the US Trademark Register, making it difficult to find and then register word marks. While some of this is due to a healthy business environment, much is also due to companies and individuals filing for and obtaining registrations that include goods and services not actually used in interstate commerce.
The Trademark Office largely relies on the honesty and integrity of trademark owners, and when this doesn’t happen, there are serious repercussions. Indeed, in a recent random audit, the USPTO found that over half of active trademark registrations include some goods or services for which the registered mark is not actually being used. This unfairly blocks new users from obtaining their own registrations.
To partially address this problem, in November 2017 the USPTO begun to conduct random audits of post-registration maintenance filings. As a further response, the Trademark Trial and Appeals Board (TTAB), which handles oppositions and cancellation actions, began a pilot program in 2019 to explore the effectiveness of an expedited cancellation proceeding for challenges to registrations of allegedly unused marks.
Under this pilot program, the TTAB identifies newly filed cancellation proceedings limited to abandonment or nonuse claims that may benefit by some form of the Board’s existing Accelerated Case Resolution (ACR) procedures. The standards of proof in an ACR proceeding remain the same as those in a traditional proceeding, and a final decision rendered under ACR may be appealed in the same manner and under the same time frames as non-ACR decisions.
Once an Answer is filed by the trademark owner/respondent, the TTAB will invite the parties to participate, and if they agree, an assigned TTAB Interlocutory Attorney and an Administrative Trademark Judge will participate in the mandatory discovery conference. In addition to the usual subjects covered during a discovery conference, these conferences explore potential stipulations of fact, evidentiary stipulations, ways to limit discovery, and the possible use of the “summary judgment ACR model” to abbreviate the proceeding by having the Board treat summary judgment motion filings and accompanying evidence as the final record and briefing and decide disputed factual issues.
The TTAB makes every effort to issue final decisions in ACR cases within 50 days once they are ready for decision. By reducing the length and complexity of the case, ACR provides a more efficient and economical alternative to the traditional full cancellation proceeding, thus offering to save the parties a lot of time and money compared to a traditional cancellation proceeding.
