The Lanham Act allows for the registration of trademarks in the United States and does not prohibit registration of a mark based solely on the prior registration of a similar mark in another jurisdiction. The Act does, however, provide for the cancellation of U.S. marks that misrepresent the source of the goods or services that are sold in connection with the U.S. mark. 15 U.S.C. §1064(3) (Section 14(3)). In Belmora v. Bayer Consumer Care AG, the U.S. Court of Appeals for the Fourth Circuit affirmed the Trademark Trial and Appeal Board’s cancellation under Section 14(3) of Belmora’s U.S. mark for its FLANAX pain-relief product sold in the United States, finding that “Belmora knew that the FLANAX mark was in use in Mexico [by Bayer] when it adopted the mark in the United States, copied Bayer’s packaging, and ‘repeatedly invoked’ the reputation of Bayer’s product in its marketing materials.” 987 F.3d 284, 299 (4th Cir. 2021).

The Federal Circuit is now set to decide whether to apply Belmora to uphold the Board’s cancellation of Meenaxi’s THUMS UP and LIMCA marks based on Coca-Cola’s ownership of those marks in India and Coca-Cola’s marketing in India of soft drinks bearing those names. The Coca-Cola Co. v. Meenaxi Enter., 2021 WL 2681898 (T.T.A.B. June 28, 2021), appeal docketed, No. 2021-2209 (Fed. Cir.). The Federal Circuit’s decision could affect the ability of foreign trademark owners to block others from registering the same marks in the United States and may create a circuit split if the Federal Circuit declines to apply Belmora. We report here on this case.

The Lanham Act

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