Use in the United States Can Support an Opposition

First Niagara Insurance Brokers, Inc. v. First Niagara Financial Group, Inc., [06-1202] (January 9, 2006)[CLEVENGER, Rader, and Prost) The Federal Circuit reversed and remanded a TTAB decision rejecting First Niagara Insurance Broker’s opposition on the grounds that its use of the FIRST NIAGARA was not in the type of commerce regulable by Congress.
SIGNIFICANCE: Use in the United States, not Use in Commerce, is all that is needed to support an opposition.
BRIEF: The Federal Circuit observed that Section 2(d) prohibits registration that is confusing similar to a mark or trade name used in the United States, but the TTAB proceeded as if the opposer had to prove use in connection with services renderee in commerce lawfully regulated by Congress. Thus the Federal Circuit held that “a foreign opposer can present its opposition on the merits by showing only use of its mark in the United States."