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Keywords

defendantappealtrialsummary judgmentwilltrademark

defendantsummary judgmenttrademark

Related Cases

Creative Arts by Calloway, LLC v. Brooks, Not Reported in F.Supp.2d, 2012 WL 6732907

Facts

Creative Arts by Calloway, LLC, founded by the family of jazz musician Cab Calloway, sought to register the trademark 'CAB CALLOWAY.' Defendant Christopher Brooks, Cab Calloway's grandson, opposed this application, claiming it would cause public confusion with his existing mark 'THE CAB CALLOWAY ORCHESTRA.' The Trademark Trial and Appeal Board upheld Brooks' opposition, leading to this court case where Creative Arts challenged the TTAB's decision. The dispute centers on whether the assignment of the trademark application from Cab Calloway's widow to Creative Arts was valid.

Issue

Did the assignment of the intent-to-use application for the trademark 'CAB CALLOWAY' from Zulme Calloway to Creative Arts by Calloway, LLC constitute a valid transfer under the Lanham Act?

Rule

Analysis

The court analyzed whether Zulme Calloway operated an ongoing and existing business related to the 'CAB CALLOWAY' mark during the relevant time period. Evidence presented indicated that her activities, such as receiving royalties and approving the use of Cab Calloway's name, did not constitute an ongoing business. The court found that the lack of substantial business activities and the absence of goodwill associated with the mark invalidated the assignment to Creative Arts.

Because Defendant is appearing pro se, he is entitled to 'special solicitude' in that his 'submissions must be construed liberally … to raise the strongest arguments that they suggest.' Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) (internal quotation marks and citations omitted).

Conclusion

The court granted summary judgment in favor of Defendant Christopher Brooks, concluding that the assignment of the trademark application was invalid due to the absence of an ongoing business.

Summary judgment is appropriate when 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' Fed.R.Civ.P. 56(a).

Who won?

Defendant Christopher Brooks prevailed in this case because the court found that the assignment of the trademark application from Zulme Calloway to Creative Arts by Calloway, LLC was invalid. The court determined that there was no ongoing and existing business associated with the 'CAB CALLOWAY' mark during the relevant time period, which is a requirement under the Lanham Act for a valid assignment. As a result, Brooks' opposition to the trademark application was upheld.

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