Intent To Sell Does Not Equate To Intent To Use

InVans Inc v. Branded LLC(2022 USPQ2d 742, TTAB 2022 [precedential]), the TTAB determined that the intent to sell or license a mark does not prove use or intent to resume its use. Ultimately, the board granted the petitioners' cancellation of two of the respondent's marks, finding that it had discontinued use of the mark and had no intent to resume use.

Section 45 of the Trademark Act provides that a mark is considered abandoned "when its use has been discontinued with intent not to resume such use". The key issues that the TTAB considered were whether the respondent had in fact abandoned the mark by way of non-use, and, whether they intended to continue using the mark.

When a mark goes unused for at least three years this is consideredprima facieevidence of abandonment, the burden is on the petitioner to prove non-use. If shown, the respondent may rebut this presumption. In this case, the board found that the petitioner sufficiently asserted by a preponderance