No Lanham Act Standing Without U.S. Trademark Use Or Registration

Belmora LLC v. Bayer Consumer Care AG

Addressing the issue of standing in a cancellation action at the U.S. Patent and Trademark Office's (USPTO) Trademark Trial and Appeal Board (TTAB), the U.S. District Court for the Eastern District of Virginia reversed a TTAB decision cancelling a federal trademark registration, finding that the petitioner did not have standing under the Lanham Act to file a cancellation action based on a trademark that was not used or registered in the U.S. Belmora LLC v. Bayer Consumer Care AG, Case No. 1:14-cv-00847 (E.D. Va., Feb. 6, 2015). (Lee, J.).

Since the 1970s, Bayer, through its predecessors in interest, has sold an analgesic product in Mexico under the name FLANAX. Bayer owns a Mexican trademark registration for the mark FLANAX. However, neither Bayer nor its predecessors ever marketed or sold a product under the FLANAX mark in the United States and Bayer does not own a U.S. registration for the FLANAX mark. Belmora began offering