In Re Carmine's Broadway Feast Inc. ( 2011 )

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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
IN RE CARMINE’S BROADWAY FEAST INC.
2010-1528
(Serial No. 78/934,642)
Appea1 from the United States Patent and Trademark
Ofiice, Trademark Tria1 and Appea1 B0ard. ~
ON MOTION
Before GAJARsA, MAYER, and PRosT, Circu,it Judges.
GAJARSA, Circu,it Judge.
0 R D E R
Carmine’s Br0adway Feast Inc. and the Under Secre-
tary for Commerce for Intellectua1 Pr0perty and Direct0r
of the United StateS Patent and Trademark Office jointly
move to vacate the Trademark Tria1 and Appea1 B0ard
decision as moot and to remand for further proceedings
The Board affirmed a rejection of Carmine’s Broad-
Way's trademark application as likely to cause confusion
with two trademark registrations U.S. Registration Nos.
1,444,609 and 2,864,349. Registrati0n N0. 2,864,349 has
IN RE CARMINES BROADWAY 2
since been cancelled, and Reg'istration No. 1,444,609 is
now owned by Carmine's Broadway and therefore no
longer poses a bar to the present trademark registration
Carmine’s Br0adway's ownership of Registration No.
1,444,609 subsequent to the Board’s decision does not
mean that vacatur by this court is appropriate. See,
e.g., U.S. Bcmcorp Mortgage C'0. v. Bon,ner Mall Partn.er-
ship, 513 U.S. 18, 29 (1994) (holding that “mootness by
reason of settlement does not justify vacatur of a judg-
ment under reView"). The proper course is to remand the
case so that the Board can consider the Carmine’s Broad-
way's request for vacatur of the Board's decision.
Accorgingly,
IT ls ORDERED THAT:
(1) The motion for vacatur is denied. __
(2) The motion to remand for further
proceedings is granted
FOR THE COURT
HAY 2 7 2011
/s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Beth A. Chapman, Esq.
Raymond T. Chen, Esq.
FlLE ‘~
s24 U.S. C01.lRT 0F APPEAl..S FOR
T|'lE FEDERAL G1RCU|T
MAY 27 2011
lAN I'5JRBAU
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