A2: Unconstitutional
Anna B. Folgers (IIT Chicago-Kent College of Law) “The Seventh Cir enth Circuit’s Approach to Deterring the To Deterring the Trademark Troll: Say Goodbye to Your Register our Registration and P ation and Pay the Costs of Litigation” September 01, 2007 3 Seventh Circuit Rev. 452 https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1173&context=seventhcircuitreview
The Seventh Circuit not only approved of the district court’s invocation of its Section 1119 powers in cancelling the plaintiffs mark but also characterized the action as “not merely appropriate” but “the best course.”175 Accordingly, more courts should invoke their power to cancel in trademark litigation where it is obvious that the plaintiff’s trademark rights are invalid. This approach is supported not only by the statutory mandate of commercial use and Section 1119’s explicit grant of the power to cancel to the court, but also many important policy considerations. In Central Manufacturing the court itself noted two policies justifying this approach in its opinion. First, the court characterized the invocation of Section 1119 as putting “the public on notice of its trademark-related judgments.”176 Second, the court stated that Section 1119 “arms the court with the power to update the federal trademark register to account for a mark’s actual legal status (or lack thereof) after it has been adjudicated, thereby reducing the potential for future uncertainty over the rights in a particular mark.”177 Below, these policy implications are assessed. Finally, the Seventh Circuit’s unique characterization of its standard of review for attorney’s fees in Lanham cases warrants separate attention.178