Impact
The availability of concurrent use registration is not commonly invoked, even where the applicant might stand an excellent chance of demonstrating the existence of geographically distinct markets. Proceedings before the TTAB, like proceedings before any court, can be expensive and time consuming. A contested concurrent use proceeding may last for two or three years before the resolution of a claim, and the outcome will remain uncertain until the end. The outcome of the proceeding will then be subject to an appeal before the United States Court of Appeals for the Federal Circuit, or to a collateral challenge in a United States District Court.
Perhaps the most notable instance of a continuing concurrent use registration is that of Holiday Inn. Although the national chain owns numerous trademark registrations, there is one registration for an unrelated "Holiday Inn" which is "restricted to the area comprising the town of Myrtle Beach, S.C.". The Myrtle Beach hotel had used that name since the 1940s, and initiated a concurrent use proceeding in 1970. While this proceeding was pending, the national chain commenced an action in the United States District Court. The concurrent use proceeding was suspended during the pendency of the federal litigation, which resulted in a judgment in 1973 authorizing the Myrtle Beach hotel to use a distinctive, noninfringing Holiday Inn service mark within the Town of Myrtle Beach. The concurrent use proceeding resumed, and in 1976, the United States Court of Customs and Patent Appeals awarded the Myrtle Beach hotel a federal trademark registration.
Even where a concurrent use registration is issued, the parties may eventually come to an agreement under which one party will surrender its registration. In some instances, a party will simply happen to cease using the mark in favor of a new brand name, and the registration will lapse. In other cases, the larger company will eventually acquire the smaller.
A final note is that concurrent use registration was devised before the advent of the Internet, which serves to diminish geographic distinctions between sellers. John L. Welch, a Harvard-educated attorney who writes a well-known blog on the proceedings of the TTAB, has noted that "vigorously contested proceedings may well make it clear that concurrent use registrations are, in this Internet Age, a dying breed".
Read more about this topic: Concurrent Use Registration
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