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Lyons v. American College of Veterinary Sports Medicine & Rehabilitation

Founder’s Early Plans to Use Mark for Later-Formed Organization Insufficient to Confer Ability to Register Mark for Personal Use

Lyons v. American College of Veterinary Sports Medicine & Rehabilitation, (Fed. Cir. June 8, 2017) (LOURIE, Wallach, Stoll) (TTAB) (3 of 5 stars)

Fed Cir affirms cancellation of Dr. Lyons’ registration for lack of ownership over the mark. The Board correctly determined that, notwithstanding Dr. Lyons’ use of the mark in various circumstances, the College was the mark’s actual owner. The inquiry of Wonderbread 5, 115 U.S.P.Q.2d 1296 (TTAB 2015), is appropriate for the analysis. Substantial evidence indicated that Dr. Lyons, along with others working to create a veterinary service organization that eventually became the College, collectively expected that the College would provide the services, not that Dr. Lyons would provide her own personal services using the mark. While Dr. Lyons may have subjectively believed differently, her “objectively manifested expectations” contradicted the idea that she alone would control the name. Substantial evidence also indicated that the public associated the mark with the College, and looked to the College for quality control. The evidence tendered by Dr. Lyons concerning her first use of the mark was insufficient to show that the public associated the mark with her, and not with the College. And while Dr. Lyons had used the mark in a manner suggesting that she had come up with it, and had future plans to create an organization that would use it, per Aycock Engineering, 560 F.3d 1350 (Fed. Cir. 2009), mere preparations by Dr. Lyons to use the mark on her own were insufficient to establish use in commerce.

KEYWORDS: TRADEMARK; OWNERSHIP; LYONS; AMERICAN COLLEGE OF VETERINARY SPORTS MEDICINE & REHABILITATION