IP Law Daily, TRADEMARK—TTAB: Registered FAT KATZ marks for restaurant and bar services not abandoned, (Nov 4, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

Petitioner did not submit sufficient evidence to prove abandonment on either of its theories of abandonment to overcome the presumption of validity of FAT KATZ trademark registrations.

In a nonprecedential decision, the Trademark Trial and Appeal Board (TTAB) denied the petitions for cancellation of trademark registrations for FAT KATZ (in standard characters and in composite form) on the sole ground that the registrant abandoned the marks. The TTAB found that petitioner 1645 Restaurant Group, Inc. did not establish a prima facie case of abandonment to overcome the presumption of validity of the registrations (1645 Restaurant Group, Inc. v. Buell, Nos. 92080535 and 92080536 (T.T.A.B. Oct. 27, 2025)).

Background. Gregg Alan Buell (Registrant) owned Registration No. 5153506 (the ’506 Registration) of the standard-character mark FAT KATZ and Registration No. 5153507 (the ’507 Registration) of the composite word-and-design mark both for restaurant and bar services in International Class 43. The 1645 Restaurant Group, Inc. petitioned to cancel the ’506 and ’507 Registrations on the sole ground that the registrant abandoned the registered marks.

Entitlement to a statutory cause of action. The TTAB noted the registrant’s responses that “the referenced federal public record speaks for itself” was problematic. The TTAB found that the registrant admitted the 1645 Restaurant Group’s ownership of Application Serial No. 97/060,221 for the mark FAT CAT, for use in connection with ‘Catering services; Restaurant services’ in International Class 043” in his responses to the allegations in paragraph 1, and also admitted that the registrant’s mark has been cited against the 1645 Restaurant Group’s Application as a basis for refusal of registration, pursuant to the Trademark Act, Section 2(d) in his responses to the allegations in paragraph 2. The TTAB determined that taken together, these admissions were sufficient to establish 1645 Restaurant Group’s entitlement to a statutory cause of action to cancel the blocking registrations.

Abandonment claim. The 1645 Restaurant Group argued that the registrant’s marks were abandoned due to nonuse by the registrant in his individual capacity and his failure to properly license the marks. The TTAB observed that if the registrant has never personally used the marks shown in the ’506 and ’507 Registrations, that fact alone does not prove nonuse of the marks under the first definition of abandonment if the marks were used by “related companies” under Section 5 of the Trademark Act, 15 U.S.C. § 1055. The Trademark Act creates a legal fiction that use of a registered mark under license from the registrant is the registrant’s use, and makes the registrant the de jure user of the mark even if the registrant is not the de facto user.

Further, the TTAB noted that since a mark registered on the Principal Register is presumed to be valid, the burden of persuasion in a cancellation proceeding rests on the 1645 Restaurant Group, the party seeking to cancel the registrations. Additionally, the TTAB noted that the most obvious potential source of evidence supporting the 1645 Restaurant Group’s theories of abandonment would be deposition testimony from the registrant or the Fat Katz Restaurants regarding the circumstances surrounding the use of the involved marks. However, the 1645 Restaurant Group offered no such direct evidence and instead asked the TTAB to infer abandonment from indirect evidence, primarily in the form of Internet webpages and articles.

The TTAB observed that parties that elect to try to carry their burden of proof on fact-intensive claims such as abandonment based solely on materials, such as Internet webpages, printed publications, and actual official records, that are made of record under notices of reliance run the risk that they will fail because of the limitations on the probative value of such evidence. The webpages established no foundational facts regarding the ownership, management, or operation of the Fat Katz Restaurants from which the TTAB could reasonably infer that there is no license between the registrant and the Fat Katz Restaurants, or that the Fat Katz Restaurants are not related companies of the registrant.

Therefore, the TTAB determined that the 1645 Restaurant Group did not establish a prima facie case of abandonment on either of its theories of abandonment to overcome the presumption of validity of the ’506 and ’507 Registrations. Accordingly, the petitions to cancel the ’506 and ’507 Registrations was denied.

The Case is Cancellations Nos. 92080535 and 92080536.

Judge: Larkin, C.

Attorneys: Caleb Hatch (Lee & Hayes, P.C.) for 1645 Restaurant Group, Inc. Jennifer L. Whitelaw and Chase Burton (Whitelaw Legal Group) for Buell.

Companies: 1645 Restaurant Group, Inc.

Cases: Trademark USPTO