<em>Cosmic Crusaders LLC v. Andrusiek</em>

(T.T.A.B. Oct. 2023)

The Federal Circuit Court ruled in favor of affirming the Trademark Trial and Appeal Board in their decision that Andrusiek had sufficient prior use of the same mark that Cosmic Crusaders had registered, thus cancelling Cosmic Crusaders’ registration.

Cosmic Crusaders LLC filed for and received a registration for the mark “Captain Cannabis” in April 2014. Andrusiek learned about their registration and filed a petition to cancel it, because he had used his own identical mark for over 40 years before Cosmic Crusaders’ registration and asserted that Cosmic Crusaders’ use would be likely to confuse consumers. The Trademark Trial and Appeal Board (“the Board”) granted Andrusiek’s cancellation petition in a written decision on September 6, 2022.

Whether or not Andrusiek could prove he had priority over the mark was the only issue that was in dispute between the two parties. Cosmic Crusaders agreed with Andrusiek that there was a likelihood of confusion between the marks, however Cosmic Crusaders did not believe that was an issue since their argument was that Andrusiek did not have priority over the mark. Under Section 2 of the Lanham Act, a trademark cannot be registered if it consists of or comprises a mark that already resembles a mark registered with the Patent and Trademark Office or used in the United States by someone else. The legal question before the Trademark Trial and Appeal Board was whether the Board should hold Cosmic Crusaders’ April 2014 registration date or Andrusiek’s common law usage of the mark dating since 1999 as priority.

Andrusiek claimed that his common-law usage of the “Captain Cannabis” started in 1999. During that year, he used the mark during sales activities at a trade fair. He argued that his commercial trade of the mark started in 2006 when he sold a “Captain Cannabis” comic book to a customer from Florida. Due to his website captaincannabis.com, Andrusiek further claimed priority since 1999 through  his website’s sales and marketing activities.

The Board found that the priority claim rested on two arguments: actual trademark use and use of the mark analogous to trademark use. Because of Andrusiek’s testimony and “extensive corroborative documentation,” the Board found that he engaged in analogous use from 2006 to now and found actual trademark use in 2017. As a result, the Board cancelled Cosmic Crusaders’ mark. Cosmic Crusaders appealed the Board’s decision to the Federal Circuit. canceled

The Federal Circuit started off its decision by explaining that there are only four reasons they would find an abuse of discretion by the Board. First, if the decision is clearly unreasonable, arbitrary, or fanciful; second, if the decision is based on an erroneous conclusion of law; third, if it rests on clearly erroneous fact finding; or four, if it involves a record that contains no evidence on which the Board could rationally base its decision.

The Federal Circuit found that the Board did not abuse its discretion by considering analogous use. Though the Court concedes that Andrusiek’s pro se pleading could have been more precise, there was ample evidence that Appellant had ample notice  Andrusiek would plead his analogous use. Both Andrusiek’s petition and trial brief asserted priority based on analogous use, and Appellant did not try to exclude the theory, even though they attempted to exclude other portions of Andrusiek’s evidence.

The Appellant also challenged the Board’s decision that Andrusiek’s prior analogous use was sufficient to establish priority. The Appellant argued Andrusiek did not engage in actual trademark use in a relevant timeframe of the analogous use. The Federal Circuit disagreed with the Appellant and stated that substantial evidence supported the Board’s findings. Though the appellants brought up a prior Circuit Court decision to argue that there was not enough evidence to prove that Andrusiek actually impacted the applicable market, this Court disagreed that it applied in this case.

Here, the Court showed that the Board cited Andrusiek’s “extensive public usage of Captain Cannabis.” The factors they looked at included registration and maintenance of the website, his attendance at many trade shows distributing materials with the mark on them, photocopies of an issue of a comic book that had explicit references to “Captain Cannabis,” shipping records of comic books featuring the mark, records of Andrusiek’s comic book sales, social media usage of the mark, and interviews that claimed Andrusiek was the creator of “Captain Cannabis.” This was a much larger record than the one in the case the Appellants cited, and the Court denied overruling said case.

The Court dismissed Appellant’s final argument that Andrusiek never used “Captain Cannabis” as an actual trademark because Appellant ignored the substantial evidence the Board relied upon in their decision. The Board used clear proof for Andrusiek’s trademark usage, including a movie, a screenplay, a comic book, and an animated video. The Appellant did not acknowledge any of it in their arguments.

Thus, the Circuit Court found substantial evidence to support the Board’s conclusion that Andrusiek engaged in trademark uses with the “Captain Cannabis” mark, and the Court affirmed the Board’s cancellation of the Appellant’s mark.