TTAB Sustains Opposition to PYNK for Magazines: Applicant Not Sole Owner of Mark

The TTAB sustained this opposition to registration of the mark PYNK & Design (shown below) for a women's fashion and lifestyle magazine, finding that applicant BleuLife Media was not the exclusive owner of the PYNK logo mark at the time of filing, and declaring the subject application void ab initio. Pynk Branded, LLC v. BleuLife Media & Entertainment, Inc., Opposition No. 91220320 (July 14, 2017) [not precedential] (Opinion by Judge Albert Zervas).

In 2010 or 2011, applicant asked Latresa Moore to start a new magazine, a female version of applicant's "Bleu" magazine. A magazine was created in 2011 (see below). By 2013, the relationship between Moore and opposer's owner, Mr. Johnson, had soured, apparently due to issue of non-payment. Ms. Moore incorporated opposer in September 2013. Johnson filed the subject application in December 2013.

Opposer currently has an Instagram webpage where it advertises a PYNK magazine, as well as a THINK PYNK website. Applicant  operates a PYNK magazine website.

The sole ground for opposition was ownership: i.e., that applicant was not the owner of the PYNK logo mark at the time of filing the subject application. "Essentially, Opposer’s claim is that it is the owner of the mark, not Applicant."

An application filed by one who is not the owner of the mark sought to be registered is void ab initio. *** Opposer, as plaintiff, bears the burden of establishing by a preponderance of the evidence that Applicant was not the owner of the PYNK logo mark at the time of filing the involved application, that is, on December 13, 2013.

The Board found that opposer met its burden of proof: the evidence showed that applicant was not the sole owner of the mark at the time that it filed the opposed application. Opposer, or Ms. Moore, had at least a partial interest in the mark on December 13, 2013.

Moore testified that she was the owner of the mark, that she operated the magazine, and that Johnson made no contribution to the creation of the logo. In email correspondence contemporaneous with the filing of the application, Johnson acknowledged Moore's interest in the mark. ("For me this entire ordeal has been about two issue (sic). One, credit for the foundation of starting PYNK together ...").

Johnson relied on certain statements on the "inside sleeve" of the magazine, referring to him as the publisher of both PYNK and BLEU magazines, and calling Moore "PYNK's popular publicist," but the Board found these statements not to be conclusive on the issue.

The Board ruled that Ms. Moore had not established her claim that there was an "understanding that each entity would walk away from the business with their separate Intellectual properties and assets." The Board found it "not possible to delineate what particular 'intellectual properties and assets' remained and with whom."

At a minimum, however, opposer established that Ms. Moore had at least some ownership rights in the mark as a result of her operation of the magazine. "In sum, Opposer has demonstrated by a preponderance of the evidence that Applicant was not the exclusive owner of the PYNK logo mark at the time of filing the involved application. Accordingly, the application is void ab initio."

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Text Copyright John L. Welch 2017.