Law of Cards: Topps Sacks USA Football's HUDDLE Trademark

Law of Cards: Topps Sacks USA Football’s HUDDLE Trademark

Last year, Topps rolled out its real-time fantasy football app called HUDDLE. To protect it, Topps filed trademark applications for both HUDDLE and TOPPS HUDDLE in the field of "providing information on sports through mobile devices."

The Trademark office, however, blocked Topps from obtaining registrations for these two marks because a company called USA Football already had a registered HUDDLE trademark.

USA Football's HUDDLE registration covered "educational services, namely, conducting programs, classes, seminars, conferences, workshops and exhibitions, displays and interactive exhibits on sporting and outdoor athletic activities." While I don't really see it, the Trademark Office contended there was too much overlap between USA Football's registration and Topps' trademark applications.

To obtain its registrations, Topps needed to knock out USA Football's HUDDLE mark.  On February 15, Topps started that process by filing a cancellation action with the Trademark Trial and Appeal Board (TTAB). Topps alleged USA Football abandoned the HUDDLE mark since it is no longer used it in commerce.

Legal translation: If you don't use a trademark registration, you lose it.

Therefore, Topps alleged USA Football's mark should die, which would allow the registration of Topps' marks.

The line of scrimmage was set…

…Topps lined up…

…and then…nothing happened.

USA Football didn't show up or file any responsive documents.

In view of this, the TTAB entered a "notice of default" against USA Football.

Legal translation: You don't show up, you also lose.

Chalk up an easy win for Topps.

Likely, USA Football stopped using the HUDDLE mark, so it didn't show up to defend it. But, if USA Football does want the mark, and just missed the opportunity to respond to Topps' complaint, the TTAB allowed 30 days for it to chime in and keep the fight going.

Otherwise, Topps has successfully sacked USA Football's mark.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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