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Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in <a href="https://cafc.uscourts.gov/opinions-orders/20-2277.OPINION.10-27-2021_1855686.pdf"><em>Brooklyn Brewery Corp. v. Brooklyn Brew Shop LLC</em>, No. 2020-2277 (Oct. 27, 2021)</a>. The Appellant (“Brewery”) owns the registered trademarks BROOKLYN and BROOKLYN BREWERY for beer and beer-related merchandise. The Appellee (“BBS”) registered the trademark BROOKLYN BREW SHOP for beer-making kits and applied to register a stylized version of the mark for beer-making kits and sanitizing preparations for household use, which are used with beer-making kits. Brewery initiated cancelation and opposition proceedings before the Trademark Trial and Appeal Board. The TTAB ruled against Brewery in both proceedings. Brewery appealed.

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The Federal Circuit largely affirmed the TTAB’s rulings, including that Brewery’s likelihood of confusion claims concerning beer-making kits were barred by laches and acquiescence. On Brewery’s descriptiveness claims, the Court affirmed the TTAB’s rejection of those claims as to BBS’s registered mark. As for the applied-for mark, the Court remanded for the TTAB to determine acquired distinctiveness as to beer-making kits.

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Concerning Brewery’s opposition to registration of the stylized mark for sanitizing preparations, the Court held Brewery lacked standing to appeal. Because it sought review of the TTAB’s decision in federal court, Brewery had to show Article III standing, which requires proof of an “injury in fact.” In a trademark case, this standard is met when there is a risk of competitive injury, such as a likelihood of confusion. The Court held that approving BBS’s application for the BROOKLYN BREW SHOP mark for sanitizing preparations would not cause Brewery to suffer any competitive injury. Brewery does not make or sell sanitizing preparations, and sanitizing preparations do not travel in the same channels of trade as Brewery’s beer. The Court rejected Brewery’s argument that it would suffer a competitive injury if it expanded its business to sell sanitizing preparations because Brewery provided no details of a concrete expansion plan. The Court found a “hypothetical future possible injury” insufficient to establish Article III standing.

CAFC Holds No Standing Present Without Competitive Injury

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