IP Law Daily, TRADEMARK—TTAB: No standing found for opposition to KINNEY SHOES registration, (May 8, 2025)

By Cathleen Calhoun, J.D.

The petitioner failed to prove entitlement to a statutory cause of action.

In a proceeding for trademark cancellation between two pro se parties that sought to resuscitate a defunct brand, KINNEY SHOES, the Trademark Trail and Appeal Board (TTAB) found that the petitioner, Superior Brands, failed to prove entitlement to a statutory cause of action. Retrobrands America LLC owns a Supplemental Register registration for the standard character mark KINNEY SHOES. Kinney Shoes was once a well-known brand of shoes, with stand-alone retail shoe stores across the country for decades until it was sold. One of its divisions, renamed Foot Locker, also was sold years ago, and is the one portion of the original company that remains in business today (Superior Brands, LLC v. Retrobrands America LLC, No. 92081356 (T.T.A.B. Apr. 29, 2025)).

Statutory cause of action. Superior Brands pleaded ownership of a pending intent-to-use application for the stylized mark KINNEY SHOES with design, and further pleaded that the application was refused registration based on a likelihood of confusion with Retrobrand’s registration. The TTAB noted that although the amended petition to cancel set forth sufficient allegations to establish an entitlement to a statutory cause of action, Superior Brands must prove the allegations by a preponderance of the evidence.

Trademark Rule 2.122(c) provides that, except for pleaded registrations, “an exhibit attached to a pleading is not evidence on behalf of the party to whose pleading the exhibit is attached, and must be identified and introduced in evidence as an exhibit during the period for the taking of testimony.” According to the TTAB, missing from the evidence was a copy of Superior Brands’ pleaded application or evidence to support its allegation that its pleaded applied-for mark was refused registration under Section 2(d) based on Retrobrands’ registration. Without such evidence, the TTAB found, Superior Brands failed to prove the underpinning allegations in the amended petition to cancel that would establish its entitlement to a statutory cause of action.

Priority. The TTAB noted that it would be enough to dismiss the proceeding based on the failure to establish entitlement to a statutory cause of action, but for the sake of completeness, it would address the element of priority. Because Superior Brands did not make its pleaded application of record, it could not rely on any constructive use date for the pleaded application in proving priority, and, as a result, could not prevail on its claim of likelihood of confusion, the TTAB found.

The petition to cancel was accordingly denied.

The Case is Cancellation No. 92081356.

Judge: Wellington, T.

Attorneys: Superior Brands, LLC, pro se. Retrobrands America LLC, pro se.

Companies: Superior Brands, LLC; Retrobrands America LLC

Cases: Trademark USPTO