In trademark cancellation proceedings, the Trademark Trial and Appeal Board's (Board) decision canceling registration of appellant-Cold War Museum's service mark THE COLD WAR MUSEUM, finding that it had not proven acquired distinctiveness of the mark, is reversed where: 1) the Board erred in deciding that it could not consider evidence of acquired distinctiveness because appellant did not resubmit the evidence in the cancellation, as the unambiguous language of 37 C.F.R. section 2.122(b) provides that the entire file of the registration at issue is automatically part of the record, without any action necessary by the parties; and 2) the Board erred as a matter of law in concluding that appellee had established a prima facie case that the mark had not acquired distinctiveness as appellee failed to present any evidence whatsoever relating to the distinctiveness of the mark and failed even to argue that the mark had not acquired distinctiveness in its petition for cancellation.
Appeal from: United States Patent and Trademark Office, Trademark Trial and Appeal Board
Decided November 5, 2009
Opinion by Circuit Judge Moore
For Appellee: W. Thomas Timmons, Dallas, Texas