CFFC v. Adidas is about trademark abandonment – this is distinct from the AFF which enables startups to get these trademarks in the first place – AND CFFC was a unique circumstance that isn’t applicable widely.
*not a real point to reading this due to the card above but this is good for context*
Rudensky 19 – Rachel Rudensky, 12-2-2019, "Unitary Design Mark Rescues a Phrase Which Failed To Function As A Trademark", Case Text, https://casetext.com/analysis/unitary-design-mark-rescues-a-phrase-which-failed-to-function-as-a-trademark?sort=relevance&resultsNav=false&q= /$antiP/
On remand, the Board first considered the question of whether CFFC’s lack of sales of any caps and minimal sales of shirts during the relevant period constituted “abandonment” under the Lanham Act. In general, Section 45 of the Lanham Act, 15 U.S.C. § 1127, provides for a rebuttable presumption of abandonment if a trademark has not been used during a three-year period. In this case, there was evidence that the CFFC sold two shirts during the relevant period. As the Federal Circuit had held, there is no de minimis test for “use in commerce.” Accordingly, the sale of two shirts was enough to overcome the abandonment claim as to shirts.
The Board likewise found that CFFC did not abandon use of the marks on caps. Though there was no sale of caps for a period of four years, the Board was satisfied that such non-use was “excusable” under the Lanham Act because the CFFC’s store was closed for renovation during that time. Trademark nonuse may be considered excusable where the holder of the registration is willing and able to continue use of the mark in commerce, but is unable to do so due to circumstances beyond its control. Therefore the Board rejected adidas’s abandonment claims.