TTABulator

One of my favorite non-traditional trademarks is for “goats on a roof”.  Having “building décor with a roof comprised of grass and bearing several goats on the roof” is registered for restaurant services and for retail on and online retail store services featuring gifts, food and clothing. The registration is owned by Al Johnson’s Swedish Restaurant and Butik. The “drawing” of the mark in Registration No. 2007624 looks like this:

Robert Doyle petitioned to cancel the registration’s owned by Al Johnson’s Swedish Restaurant and Butik. Doyle essentially claimed the mark was functional since it helped keep the temperature lower below. Al Johnson’s brought a motion to dismiss for failure to state a claim.

The Board ruled that Petitioner did not properly allege standing. Petitioner claimed an interest in taking photographs. The Board noted that

While respondent’s Registrations might prevent petitioner from using any photographs of goats on sod roofs as a service mark in connection with restaurant or gift shop services, or related services, petitioner has not alleged that he uses or wants to use the desired photographs in such a manner, or that he has any right to do so…. In short, petitioner alleges that he wants to take photographs of goats on roofs, but does not allege that anything about respondent’s mark or Registrations prevents him from doing so.

The Board also found that the functionality claim, as alleged, had no merit

[W]hile petitioner alleges that respondent’s goats and sod roof affect respondent’s costs, by reducing respondent’s energy and mowing expenses, this allegation is
not specific, and is in fact completely unrelated, to restaurant or gift shop services.

Therefore, the Board dismissed the claims in a precedential opinion. See here for full opinion. However, Petitioner has 20 days to file an amended Petition for cancellation that properly alleges standing and a claim regarding functionality. The Board also took an unusual step of noting that the “Petitioner should also be aware of the extreme difficulties he would likely face in ultimately proving that respondent’s mark is functional.”