The CAFC confirmed the TTAB's dismissal of Heritage Alliance's opposition to the registration of the iVoters marks, stating that Heritage's claims were unfounded as its iVoterGuide marks lacked distinctiveness. Heritage argued that their marks had been used since 2008 and claimed likelihood of confusion, but the TTAB found that these marks were descriptive and thus not subject to trademark protection prior to APR's filing. Ultimately, Heritage's five years of use was insufficient to establish a recognizable brand under trademark law, paving the way for APR's marks to be registered despite the conflict.
While the Lanham Act says that registration should generally follow when an opposition fails, as it did here, 'the stated precondition is that the mark at issue be a 'mark entitled to registration,' said the CAFC.
Heritage's prior-use marks could not support its challenge because the marks were not themselves protectable as trademarks (before APR's first-use date), so they lacked cognizable priority.
The Board said the marks were not only descriptive of the service offered but 'highly descriptive,' and none of the elements of the marks, individually or in combination, were distinctive or had any source-identifying significance.
Despite its five years of use prior to APR's first use, Heritage also failed to prove acquired distinctiveness, said the Board.
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