A federal circuit court dismissed a petition by a man seeking to strip Al Johnson’s Swedish Restaurant of its trademarked goats on the roof. Todd Bank filed the petition, alleging that the trademark is demeaning to goats and “is offensive to [Mr.] Bank and denigrates the value he [and others] place on the respect, dignity and worth of animals.”
“The Federal Circuit reached the correct decision,” said Katrina Hull, the lawyer for Al Johnson’s, in an email. “A party that wants to cancel a registered trademark, like Al Johnson’s Goats on the Roof Trade Dress, must first establish some type of harm. Mr. Bank did not allege any facts that suggested that he had been harmed in any way by the goats on the roof.”
Al Johnson’s obtained the legal trademark to “goats on a roof of grass” from the United States Patent and Trademark Office in 1996. The restaurant has defended that trademark through the years, even leading to 2010 coverage in the Wall Street Journal.
Other cases have established that just because a trademark is disparaging, it does not mean it can be canceled. A person who thinks he or she is harmed by a trademark must have a real interest in its removal. To that end, the court found that Bank did not have a stake in the outcome of the case, so he did not have standing to log the petition.
Living animals are not always grounds for granting a federal trademark, but if they become a valuable brand and symbol for a company – as Al’s goats have – then animals can be trademarked.
This was Bank’s fourth attempt at petitioning the Patent and Trademark Office to cancel the trademark, including petitions in 2011 and 2012 while representing a client, Robert Doyle. The court also issued sanctions, meaning that Al Johnson’s recovered its costs and attorney’s fees.
“Al Johnson’s asked the Federal Circuit for sanctions because Mr. Bank showed a pattern of conduct of repeatedly attacking my client’s registration without an articulable injury as well as a complete disregard for established law and Supreme Court precedent.”
Bank can appeal the decision to the Supreme Court, but it is unlikely the court will take up the case.