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Precedential No. 23: TTAB Refuses to Hear Belated Fraud Claim, Finding It Not Tried By Consent

Perhaps sensing that it was up the proverbial creek with its Section 2(d) claim, Opposer Morgan Creek Productions, on the day its trial brief was due, filed a motion to add a claim of fraud, asserting that the issue had been tried by the "implied consent of the parties." The Board, after reviewing the pertinent testimony transcript, denied the motion and then went on to rule against Opposer on likelihood of confusion. It found Applicant's mark MORGAN CREEK OUTFITTERS (in standard character form) for various clothing items not likely to cause confusion with Opposer's mark MORGAN CREEK & Design, registered for motion pictures, dvds, and cds. Morgan Creek Productions, Inc. v. Foria International, Inc., Opposition No. 91173806 (June 11, 2009) [precedential]...continue to full post

Full post as published by The TTABlog on June 16, 2009 (boomark / email).