TTAB Sustains Opposition To Apple's "LIVE PHOTOS," Finding It Generic Or Merely Descriptive

In an 87-page opinion issued nine days after oral argument, the Board sustained an opposition to registration of the proposed mark LIVE PHOTOS for "Computer software for recording and displaying images, video and sound" on the grounds of genericness and, alternatively, mere descriptiveness. As to the latter issue, the Board shot down Apple's claim of acquired distinctiveness under Section 2(f). Gang Cao v. Apple Inc., Opposition No. 91239006 (June 26, 2021) [not precedential] (Opinion by Judge Marc A. Bergsman).

Standing: Apple argued that Opposer Cao lacked "standing" to bring the opposition because Cao does not use the term "Live Photos." The Board pointed out, however, that a party need not use the term at issue to establish its entitlement to a statutory cause of action. "Opposer has a real interest in the proceeding because [he] has a present or prospective right to use 'Live Photos' as a generic or descriptive term to describe [his] software." Cao "has