October 9th, 2008 by Benjamin Duranske
Second Life creator Linden Lab’s attempt to open a second front in the battle over SLART has been stymied. The USPTO Trademark Trial and Appeal Board suspended (.pdf) the cancellation proceeding that Linden Lab initaited last month regarding artist Richard Minsky’s registration of “SLART” pending the outcome of the lawsuit Minsky filed earlier in Federal court against an avatar named as an individual alleged infringer, Linden Lab, and Linden Lab executives. Minsky asked the Trademark Trial and Appeal Board for the suspension and Linden Lab opposed it. The suspension was granted following a telephone conference.
The TTAB explains: “To the extent that a civil action in a Federal district court involves issues in common with those in a proceeding before the Board, the decision of the district court is binding upon the Board, while the decision of the Board is not binding upon the court. See, e.g., Goya Foods Inc. v. Tropicana Products Inc., 846 F.2d 848, 6 USPQ2d 1950 (2d Cir. 1988).”
Because Minsky “must establish that he has protectable trademark rights in the involved SLART mark” in the district court proceeding, and because “the district court’s findings with regard to whether [Minsky] has such rights may have a bearing” on Linden Lab’s claim that Minsky committed fraud on the trademark office in acquiring the registration, the Board suspended the cancellation until the district court action is concluded.
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