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Cold War Museum Wins Battle Over Service Mark

(CN) - In a battle between Cold War museums, the Federal Circuit resuscitated the registered service mark "The Cold War Museum," saying it had been improperly canceled as "merely descriptive."

Francis Gary Powers Jr. applied to register the service mark in February 2003, seven years after he founded the traveling museum.

But because the term was descriptive, Powers needed to prove that it had become distinctive in the last five years. He submitted more than 200 pages of material to support his claim, and the U.S. Patent and Trademark Office registered the mark.

Three years later, Cold War Air Museum sued to have the mark canceled, arguing that the phrase was too descriptive to be trademarked.

The PTO's Trial and Appeal Board sided with the Air Museum and canceled registration of the mark.

The Washington, D.C.-based appeals court reversed, saying the board had ignored the evidence submitted during prosecution. Federal regulations are "clear and unambiguous" that such evidence must be rebutted in a cancellation proceeding, the three-judge panel ruled.

Air Museum never even argued that the mark hadn't acquired distinctiveness, Judge Kimberly Moore wrote.

The court also criticized the board for improperly shifting the burden of proof from the Air Museum to the Cold War Museum.

"Air Museum, as the party seeking cancellation, bore the burden of persuasion as well as the initial burden of establishing a prima facie case," Moore wrote.

But the Air Museum did neither, she said.

The court reinstated the Cold War Museum's service mark.


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