Lyons v. The American College Of Veterinary Sports Medicine And Rehabilitation

859 F.3d 1023 (2017)

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Nature of the Case

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Facts

D met with Gillette where they discussed the prospect of forming a veterinary specialist organization for treating athletic animals. Gillette had published a similar proposal for board certification in canine medicine the previous year. A group of veterinarians wishing to create a VSO must form an organizing committee and submit a letter of intent to the AVMA. D, Gillette, and four other veterinarians formed an organizing committee. Gillette served as the chair. As early as 2002, the committee began using the mark as the name of the intended VSO. D participated in the formation of the VSO but in July 2004, D was dismissed from the organizing committee. A year after her dismissal, D sought registration of the mark on the Principal Register for 'veterinary education services. Eventually, the PTO registered the mark on the Supplemental Register. In 2010, the AVMA granted provisional recognition to the VSO, which was entitled the 'American College of Veterinary Sports Medicine and Rehabilitation.' It has subsequently certified over 115 veterinarians in the specialty, established 13 active residency programs at veterinary colleges, and conducted annual meetings, conferences, and continuing education programs in collaboration with other AVMA-certified VSOs. The College (P) petitioned to cancel D's registration on the Supplemental Register on grounds of priority of use and likelihood of confusion under 15 U.S.C. § 1052(d), misrepresentation of source under 15 U.S.C. § 1064, and fraud. A civil action was initiated between the parties. The district court issued a final order dismissing Ds claims because her claimed prior use did not cause the mark to acquire distinctiveness in the public mind. The district court ordered the PTO to reject D's application for registration on the Principal Register but declined to cancel her registration on the Supplemental Register. The Board concluded that Lyons was not the owner of the mark and that the underlying application for her registration on the Supplemental Register was void ab initio. The Board analyzed three factors to determine ownership of the mark: (1) the parties' objective intentions or expectations; (2) who the public associates with the mark; and (3) to whom the public looks to stand behind the quality of goods or services offered under the mark. The Board concluded that all 'indicia of ownership' point to P rather than to D and D never owned the mark. D appealed.