Lyons v. American College of Veterinary Sports Medicine & Rehabilitation , 859 F.3d 1023 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
SHEILA LYONS, DVM,
Appellant
v.
THE AMERICAN COLLEGE OF VETERINARY
SPORTS MEDICINE AND REHABILITATION,
Appellee
______________________
2016-2055
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
92053934.
______________________
Decided: June 8, 2017
______________________
STEPHEN J. LYONS, Klieman & Lyons, Boston, MA, ar-
gued for appellant.
DAVID A. KLUFT, Foley Hoag, LLP, Boston, MA, ar-
gued for appellee. Also represented by NICOLE KINSLEY.
______________________
Before LOURIE, WALLACH, and STOLL, Circuit Judges.
2 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
LOURIE, Circuit Judge.
Sheila Lyons, DVM (“Lyons”) appeals from a decision
of the U.S. Patent and Trademark Office (“the PTO”)
Trademark Trial and Appeal Board (“the Board”) cancel-
ling her registration of the service mark THE
AMERICAN COLLEGE OF VETERINARY SPORTS
MEDICINE AND REHABILITATION (“the mark”) on the
Supplemental Register on the ground that she does not
own the mark. See Am. Coll. of Veterinary Sports Med. &
Rehab. v. Lyons, 2016 WL 1380739, at *19 (T.T.A.B. Mar.
17, 2016) (“Decision”). For the reasons that follow, we
affirm.
BACKGROUND
Lyons is an equine veterinarian. In 1999, Lyons met
Dr. Robert Gillette (“Gillette”) at a conference where they
discussed the prospect of forming a veterinary specialist
organization (“VSO”) for treating athletic animals. Gil-
lette had published a similar proposal for board certifica-
tion in canine medicine the previous year. For a VSO to
become accredited by the American Veterinary Medical
Association (“AVMA”), a group of veterinarians wishing to
create the VSO must form an organizing committee and
submit a letter of intent to the AVMA. Thus, between
1999 and 2002, Lyons, Gillette, and four other veterinari-
ans formed an organizing committee, of which Gillette
served as the chair. By at least as early as 2002, the
committee began using the mark as the name of the
intended VSO. In the winter of 2002, Lyons participated
in drafting a letter of intent, which was later submitted to
the AVMA, and worked with the organizing committee to
create a petition to seek accreditation for its VSO. In
early 2004, Lyons drafted proposed bylaws and articles of
incorporation for the VSO, which she presented to the
organizing committee. In July 2004, Lyons was dismissed
from the organizing committee for reasons not relevant to
this appeal.
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 3
Almost a year after her dismissal from the committee,
Lyons sought registration of the mark on the Principal
Register for “veterinary education services namely con-
ducting classes, seminars, clinical seminars, conferences,
workshops and internships and externships in veterinary
sports medicine and veterinary rehabilitation” in Interna-
tional Class 41, based on her assertion of a bona fide
intention to use the mark in commerce under 15 U.S.C.
§ 1051(b). Decision, 2016 WL 1380739, at *1. The PTO
denied her application on the ground that the mark was
geographically descriptive. In March 2006, Lyons there-
fore amended the application to seek registration on the
Supplemental Register, based on actual use under 15
U.S.C. § 1091(a), alleging first use anywhere as of Decem-
ber 20, 1995 and first use in commerce at least as early as
June 18, 1996. In May 2006, the PTO registered the
mark on the Supplemental Register, Registration No.
3,088,963.
Meanwhile, the organizing committee, led by Dr. Gil-
lette, had continued to work on the VSO petition for
AVMA accreditation and submitted a first draft to the
AVMA in November 2008. In 2009, the AVMA published
the petition to its members in the Journal of American
Veterinary Medicine and in its electronic newsletter. In
2010, the AVMA granted provisional recognition to the
VSO, which was entitled the “American College of Veteri-
nary Sports Medicine and Rehabilitation” (“the College”)
and incorporated as a Colorado non-profit organization in
June 2011. The College administered its first certification
test in 2012 and subsequently certified over 115 veteri-
narians in the specialty, established 13 active residency
programs at veterinary colleges, and conducted annual
meetings, conferences, and continuing education pro-
grams in collaboration with other AVMA-certified VSOs.
On April 25, 2011, the College petitioned to cancel Ly-
ons’s registration on the Supplemental Register on
grounds of priority of use and likelihood of confusion
4 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
under 15 U.S.C. § 1052(d), misrepresentation of source
under 15 U.S.C. § 1064, and fraud. The cancellation
proceeding was suspended for almost three years during
the pendency of a civil action between the parties in the
U.S. District Court for the District of Massachusetts,
where Lyons alleged infringement of the mark by the
College. See Lyons v. Am. Coll. of Veterinary Sports Med.
& Rehab., Inc., 997 F. Supp. 2d 92, 98 (D. Mass. 2014).
On February 19, 2014, the district court issued a final
order dismissing Lyons’s claims because, inter alia, her
claimed prior use did not cause the mark to acquire
distinctiveness in the public mind. Id. at 105. The dis-
trict court ordered the PTO to reject Lyons’s application
for registration on the Principal Register, but declined to
cancel her registration on the Supplemental Register. Id.
at 116–17.
After the district court’s disposition, the Board re-
fused Lyons’s application for registration on the Principal
Register, and resumed the cancellation proceeding relat-
ing to the registration on the Supplemental Register. The
Board concluded that Lyons was not the owner of the
mark, and that the underlying application for her regis-
tration on the Supplemental Register was void ab initio.
See Decision, 2016 WL 1380739, at *19.
The Board explained that, although the cancellation
proceeding was initially brought on grounds of likelihood
of confusion, the “true issue [was] ownership of the mark”
as between “a former organizing committee member
and . . . the veterinary specialty organization she helped
found.” Id. at *8 (citing 15 U.S.C. § 1051(a)). The Board
analyzed three factors to determine ownership of the
mark: (1) the parties’ objective intentions or expectations;
(2) who the public associates with the mark; and (3) to
whom the public looks to stand behind the quality of
goods or services offered under the mark. See id. at *9
(citing Wonderbread 5 v. Gilles, 115 U.S.P.Q.2d (BNA)
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 5
1296, 1305 (T.T.A.B. 2015)). The Board found that all
three factors favored the College.
First, the Board found that Lyons’s interactions with
the organizing committee were in the nature of “proposing
and planning the formation of a [VSO],” not “providing
the services herself.” Id. at *10. The Board noted Lyons’s
behavior in helping to draft the letter of intent, and in
drafting the proposed bylaws and articles of incorpora-
tion—all toward forming a VSO under the name the
organizing committee had already begun to use for the
VSO, the “American College of Veterinary Sports Medi-
cine and Rehabilitation” (i.e., the mark). See id. at *10–
12. The Board also pointed to the testimony of the other
organizing committee members, who unanimously agreed
that Lyons never indicated that she considered the mark
to be her own or notified them that they were not to use
the mark after her departure from the committee. See id.
at *12–14. In fact, the Board observed, the organizing
committee believed that they had conceived of the mark
themselves. Id. at *13, *17. Thus, the Board found that
the objectively manifested intent of the parties weighed in
favor of ownership by the College. Id. at *14.
Second, the Board found that the relevant public as-
sociates the mark with the College, rather than with
Lyons. See id. at *16. The Board observed that the
College had certified veterinarians in its specialty, had
established residency programs, conducted annual confer-
ences and meetings, maintained a public website, and is
recognized as a specialty on the AVMA’s website, accessi-
ble to the 80,000-plus veterinarian AVMA members. See
id. at *18. The Board explained that, while Lyons used
the mark in a non-published document called “The Equine
Excellence Initiative” as early as 1995, such use was “not
use in commerce”—rather, it was “at most[] de minimis
use that never acquired distinctiveness.” Id. at *16–17.
In fact, the Board found that The Equine Excellence
Initiative was written in the future tense—detailing
6 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
Lyons’s plans for the VSO she envisioned forming. Id. at
*16. The Board noted that Lyons does not employ any
teachers, has no students, has not yet acquired any physi-
cal premises for offering her educational services, and has
not certified any veterinarians, and that her nonprofit
organization (formed before 1999) has no employees,
volunteers, real estate, or significant assets. Id. at *17.
Furthermore, the Board reasoned, because of Lyons’s
participation in the organizing committee between 1999
and 2004, any actions by Lyons “from that point on,”
undertaken in the name of the “American College of
Veterinary Sports and Rehabilitation Medicine” and
resulting in acquired distinctiveness of the mark, inured
to the benefit of the College. Id. at *18.
Finally, the Board found that the relevant public
looks to the College to stand behind the quality of the
educational and certification services associated with the
mark. The Board noted that veterinarians certified by
the College “may hold themselves out as diplomates in an
AVMA-approved specialty.” Id. at *19. Moreover, the
Board continued, the College’s very name—the American
College of Veterinary Sports Medicine and Rehabilita-
tion—carries with it the AVMA’s “seal of approval” be-
cause almost all AVMA-certified specialties (and none
that are not AVMA-certified) use the prefix “American
College of Veterinary” in the VSO name. Id. Thus, the
Board concluded that the public would look to the College
to stand behind the quality of the services associated with
the mark, rather than to Lyons, “who left the American
Veterinary Medical Association in 2005, abandoned all
thought of obtaining a certification from that Association,
has no students enrolled in educational courses offered
under the mark, and has no certification program.” Id.
In sum, the Board concluded that all “indicia of own-
ership” point to the College rather than to Lyons, and that
the application underlying her registration on the Sup-
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 7
plemental Register was void ab initio because she never
owned the mark. Id.
Lyons timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(4)(B).
DISCUSSION
We review the Board’s legal conclusions de novo, In re
Int’l Flavors & Fragrances Inc., 183 F.3d 1361, 1365 (Fed.
Cir. 1999), and the Board’s factual findings for substantial
evidence, On-Line Careline, Inc. v. Am. Online, Inc., 229
F.3d 1080, 1085 (Fed. Cir. 2000). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” In re Pacer
Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003).
I.
It is axiomatic in trademark law that ownership of a
mark is predicated on priority of use in commerce. See,
e.g., Holiday Inn v. Holiday Inns, Inc., 534 F.2d 312, 319
n.6 (C.C.P.A. 1976) (“It is fundamental that ownership of
a mark is acquired by use, not by registration.”); Applica-
tion of Deister Concentrator Co., 289 F.2d 496, 501
(C.C.P.A. 1961) (emphasizing that registration of a mark
under the Lanham Act does not “create ownership,” but
rather is “only evidence thereof”).
Thus, registration by one who did not own the mark
at the time of filing renders the underlying application
void ab initio. See, e.g., Holiday Inn, 534 F.2d at 319 n.6
(“One must be the owner of a mark before it can be regis-
tered.”); Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350,
1357 (Fed. Cir. 2009) (“The registration of a mark that
does not meet the use requirement is void ab initio.”).
The statutory requirement for use in commerce ap-
plies to service marks as well as to trademarks. Aycock
Eng’g, Inc., 560 F.3d at 1357. Under the Lanham Act, a
service mark is any “word, name, symbol or device, or any
8 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
combination thereof used by a person, or which a person
has a bona fide intention to use in commerce . . . to identi-
fy and distinguish the services of one person . . . from the
services of others and to indicate the source of the ser-
vices.” 15 U.S.C. § 1127.
For service marks, the “use in commerce” requirement
is met when: (1) a mark is “used or displayed in the sale
or advertising of services”; and (2) either (i) the services
are “rendered in commerce” or (ii) the services are “ren-
dered in more than one State or in the United States and
a foreign country and the person rendering those services
is engaged in commerce in connection with the services.”
15 U.S.C. § 1127. Therefore, to meet the use requirement
for a service mark, an applicant must use the mark in
advertising or sale of a service, and show that the service
was actually rendered in interstate commerce or in more
than one state, or in this and a foreign country, by a
person engaged in commerce.
A framework has developed in situations such as the
present, where there has been a departure from or change
of membership in a group, and both the departing mem-
ber and the remnant group claim ownership of the mark.
See, e.g., Wonderbread 5, 115 U.S.P.Q.2d at 1297; see
generally, 2 J. Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 16:45 (4th ed.
2015).
For example, in Wonderbread 5 the Board resolved a
dispute regarding ownership of a band’s name after the
departure of one of its members. 115 U.S.P.Q.2d at 1297.
Due to the absence of a formal agreement between the
parties regarding ownership of the mark, the Board
examined the “parties’ statements and actions at the
time” of the member’s departure from the group. Id. at
1303. After finding that the evidence was inconsistent
with the departing member’s claim that he “owned the
mark as an individual,” the Board applied Professor
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 9
McCarthy’s two-step test as a “useful adjunct” to its
preliminary findings based on the parties’ objective mani-
festations. Id. at 1303, 1305. For ownership disputes
arising out of changes of membership in musical groups,
McCarthy frames the inquiry as whether the mark “iden-
tif[ies] the group regardless of its members.” 2 McCarthy
§ 16:45. To answer that question, McCarthy proposed a
two-part analysis: first, one determines whether the mark
is “personal to the individual members or not”; and sec-
ond, if it is not, then it must be determined “for what
quality or characteristic the group is known and who
controls that quality.” Id. The Board rephrased McCar-
thy’s two-step inquiry in its findings to mean that “the
consuming public did not associate” the mark with the
departing member, and the group, rather than any indi-
vidual member, “controlled the quality or characteristic of
the band.” Wonderbread 5, 115 U.S.P.Q.2d at 1307.
Thus, the Board determined that the band owned the
mark, the departing member’s application for registration
was void ab initio, and the resulting registration was
invalid. Id.
This case presents a similar scenario, where Lyons
was a member of a group (the organizing committee) and,
after her departure from the group, both Lyons and the
remnant committee (now the College) claim ownership of
a mark used by the group while Lyons was still a mem-
ber.
II.
Although the College initiated this cancellation pro-
ceeding based on a likelihood of confusion and other
grounds, the dispute in the case, as the Board found,
centers on ownership of the mark, Decision, 2016 WL
1380739, at *8, which in turn depends upon priority of use
in commerce, Holiday Inn, 534 F.2d at 319.
In a priority dispute, the Board’s determination
whether a trademark has been appropriated by first use
10 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
in commerce is a fact question that we review for substan-
tial evidence. See, e.g., Aycock Eng’g, Inc., 560 F.3d at
1360 (upholding the Board’s determination that the
Appellant was not the first to use the service mark in
commerce because that finding was “supported by sub-
stantial evidence”).
On appeal, Lyons argues that the Board erred in find-
ing that she did not own the mark at the time she filed
her application because the evidence shows that she, not
the College, was the first to use the mark in commerce.
Lyons contends that she used the mark as early as 1995
in the fundraising document entitled “The Equine Excel-
lence Initiative,” which was “widely disseminated to the
veterinary community, sport-horse industry, philanthrop-
ic organizations and the public.” Appellant’s Br. 21.
Lyons asserts that, since 1996, she has continuously used
the mark in commerce to conduct classes, clinical semi-
nars, educational conferences, and workshops; create
internship and externships for veterinary students;
create, present, publish, sell, and distribute education
materials, including booklets, presentations, and student
test materials; create advertising educational programs;
maintain an interactive website for educational programs;
publish scholarship guidelines and applications; certify
veterinarians; and provide student scholarships. Id. at
22. Since 1996, Lyons maintains, she has raised over two
million dollars in grant support from fundraising conduct-
ed using the mark. Id. at 27.
The College responds that the Board correctly deter-
mined that the three factors relevant to ownership all
demonstrate that the College owns the mark. First, the
College asserts that the objectively manifested intent of
the parties was that the mark would be used to name the
VSO, which is exactly what has transpired. Appellee’s Br.
23–24. Second, the College continues, the relevant public
associates the mark with the College, not with Lyons,
because the College has certified over 140 veterinarians
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 11
in approximately 33 states and 14 countries, established
13 active residency programs, collaborated with other
AVMA-accredited VSOs to organize conferences and
professional meetings, and maintains an active website.
Id. at 30. Finally, the College argues that the public looks
to the AVMA-accredited College to stand behind the
quality of the education and certification services associ-
ated with the mark because those certified by the College
may hold themselves out as AVMA-recognized specialists,
whereas Lyons, on the other hand, cancelled her member-
ship with the AVMA after being dismissed from the
committee, abandoned plans to seek accreditation, and
has no educational programs and no students. Id. at 35–
36.
We agree with the College that the Board correctly
determined that Lyons does not own the mark.
First, we find no error in the legal framework the
Board used to evaluate ownership. The Board noted that,
although various sources delineate the relevant test using
different language, they all substantively include three
main factors to be considered in ownership disputes
surrounding service marks as between a departing mem-
ber and the remnant group: (1) the parties’ objective
intentions or expectations; (2) who the public associates
with the mark; and (3) to whom the public looks to stand
behind the quality of goods or services offered under the
mark. Decision, 2016 WL 1380739, at *9 (citing Wonder-
bread 5, 115 U.S.P.Q.2d at 1305). We agree with the
Board’s articulation of the relevant factors and accept the
legal framework it applied for resolving ownership dis-
putes when there has been a departure from or change of
membership in a group and, in the absence of a formal
agreement governing ownership of the mark, both the
departing member and the remnant group claim owner-
ship of the mark.
12 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
Second, we conclude that the Board’s findings regard-
ing each of the three prongs of its analysis were supported
by substantial evidence. We discuss the findings in turn.
A. The Parties’ Collective Intent
The Board determined that the parties’ objective ex-
pectations were that Lyons and the rest of the organizing
committee would form an AVMA-accredited VSO entitled
“American College of Veterinary Sports Medicine and
Rehabilitation,” not that Lyons would render her own
personal services using the mark. Id. at *10. Substantial
evidence supports that finding.
The record shows that, even before meeting Gillette,
Lyons intended to form an AVMA-accredited VSO entitled
“American College of Veterinary Sports Medicine and
Rehabilitation.” J.A. 1114. Because the AVMA rules for
accreditation require the formation of an organizing
committee comprising a minimum of six members, some
of them canine veterinarians, she reached out to Gillette
and the other veterinarians to form the organizing com-
mittee. J.A. 504, 520, 525, 527. During her concerted
action with the rest of the organizing committee, she held
herself out to the AVMA as a member of the committee,
acting on behalf of the intended VSO that she agreed to
name the “American College of Veterinary Sports Medi-
cine and Rehabilitation.” J.A. 520, 566. At no point did
she communicate to any of the other committee members
her belief that she owned the mark, any prior use of the
mark, or any objection to the committee naming the VSO
after the mark. J.A. 477, 480–81, 483–84, 1420. In fact,
she testified of her expectation that, at the end of the
AVMA recognition process, the VSO would be named The
American College of Veterinary Sports Medicine and
Rehabilitation. J.A. 514.
Although some evidence may indicate Lyons’s subjec-
tive belief that she owned the mark and would control the
VSO once it was formed, J.A. 706–07, 1117, 1125, 1128,
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 13
1110–31, 1197, her objectively manifested expectations
contradict that notion, J.A. 477, 480–81, 483–84, 1420.
As the Board found, “[w]hatever secret reservations
[Lyons] may have harbored were not reflected in her
interactions with the other committee members.” Deci-
sion, 2016 WL 1380739, at *12. Thus, the collective
expectation of the parties, as objectively manifested, was
that Lyons and the rest of the organizing committee
would form an AVMA-accredited VSO with a name that
became the mark. The Board’s determination to that
effect was supported by substantial record evidence.
B. Who the Public Associates with the Mark
The Board next determined that the relevant public—
the AVMA and veterinary community—associates the
mark with the College, rather than with Lyons. See id. at
*16. The Board found that Lyons engaged in at most “de
minimis” use of the mark, and that her use never rose to
the level of use in commerce sufficient to “create an asso-
ciation in the minds of the purchasing public” between
Lyons and the mark. Id. at *16, *17. The Board relied
upon substantial record evidence to support that finding.
First, the document Lyons cites as her first use of the
mark, The Equine Excellence Initiative, was written in
the future tense, indicating Lyons’s future plans to form a
VSO with the name of the mark. J.A. 832–39. But we
have held that mere preparation and publication of future
plans do not constitute use in commerce. 1 See, e.g., Ay-
1 Other aspects of the evidence pertaining to the
Equine Excellence Initiative are problematic. Specifical-
ly, Lyons admits that she did not publish the Equine
Excellence Initiative in a systematic or public way, that
she did not maintain a mailing list or other documenta-
tion demonstrating to whom she sent the document, and
14 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
cock Eng’g, 560 F.3d at 1360 (“[M]ere preparations to use
[the] mark sometime in the future will not do . . . .”); id. at
1358 (“[T]he advertising or publicizing must relate to an
existing service which has already been offered to the
public.” (internal quotation marks omitted)); see also
Intermed Commc’ns, Inc. v. Chaney, 197 U.S.P.Q. (BNA)
¶ 501, 507 (T.T.A.B. Dec. 23, 1977) (“Mere adoption
(selection) of a mark accompanied by preparations to
begin its use are insufficient . . . for claiming ownership
of . . . the mark.”).
Second, the record shows that Lyons has never en-
gaged in advertising or marketing expenditures for the
mark and, prior to 2003, had never maintained a website
for herself or her wholly-owned nonprofit organization,
Homecoming Farms. J.A. 502, 1112. In fact, according to
the record, the first time the mark appeared online was in
December 2002, when Gillette put the name of the VSO
on the website he used for coordinating efforts of the
organizing committee. J.A. 1121. Furthermore, the
evidence indicates that Lyons has no employees or volun-
teers, no students enrolled in educational courses offered
under the mark, and no certification program. J.A. 497–
98, 1102, 1132, 1162.
On the other hand, there is evidence that the College
has certified at least 115 veterinarians, established 13
active residency programs in veterinary colleges, and
conducted conferences and continuing education programs
in collaboration with other AMVA-accredited VSOs. J.A.
476–77. Furthermore, the AVMA published the commit-
tee’s VSO petition to its 80,000-plus veterinarian mem-
bers in the Journal of American Veterinary Medicine and
in its electronic newsletter for the purpose of allowing its
members to comment on it. J.A. 476, 1133. Moreover, the
that she has no evidence demonstrating that she sent it at
all. J.A. 536–37.
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 15
College has obtained corporate sponsorships from compa-
nies in the veterinary industry and received considerable
attention in the press. J.A. 476–77. Finally, the College,
not Lyons, is listed on the AVMA’s website regarding the
VSO bearing the mark. J.A. 477.
As we have explained, the statute, 15 U.S.C. § 1127,
requires both advertisement and actual use of the mark to
satisfy the “use in commerce” requirement. See Aycock
Eng’g, 560 F.3d at 1360 (“[A]dvertisement and actual use
of the mark in commerce are required.”); see also In-
termed, 197 U.S.P.Q. at 507 (explaining that “[a]t the very
least,” in order to meet the use requirement, “there must
be an open and notorious public offering of the services to
those for whom the services are intended”); id. at 507–08
(“The statute requires not only the display of the mark in
the sale or advertising of services but also the rendition of
those services in order to constitute use of the service
mark in commerce.”).
Thus, substantial evidence supports the Board’s find-
ing that the relevant public looks to the College, not
Lyons, for services in connection with the mark because
Lyons’s use of the mark has not created distinctiveness
inuring to Lyons.
C. To Whom the Public Looks for Quality Control
Finally, the Board found that the relevant public
looks to the College to stand behind the quality of the
educational and certification services associated with the
mark. Decision, 2016 WL 1380739, at *18–19. Substan-
tial evidence supports that finding.
Because the College has earned AVMA accreditation,
the veterinarians it certifies may hold themselves out as
AVMA-approved specialists. J.A. 476. Indeed, the AVMA
maintains a publicly-available website containing infor-
mation about all AVMA-recognized organizations, includ-
ing the College, which allows users of the website to
16 LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB.
contact the College and to search for specialists by area of
medicine and organization. J.A. 477, 1046–54. Further-
more, as the Board observed, the College’s very name
carries the “AVMA’s seal of approval” because many
AVMA-accredited VSOs, and none that are not AVMA-
accredited, have names beginning with the words “Ameri-
can College of Veterinary.” J.A. 1181. Lyons has pro-
duced no evidence that she has obtained similar
certifications from the AVMA, that she has students
enrolled in educational services offered under the mark,
or that she offers any certification programs at all. There-
fore, substantial evidence supports the Board’s finding
that members of the public who seek out veterinary sports
medicine and rehabilitation services will rely upon the
College’s certification as evidence of a particular veteri-
narian’s expertise. Decision, 2016 WL 1380739, at *19.
III.
In sum, we conclude that the Board’s findings were
supported by substantial record evidence. One might
even say that the lion’s share of the evidence supports the
Board’s decision.
Although Lyons may have been the first to use the
mark, the record shows that her use never rose to the
level of use in commerce. Rather, she initiated efforts to
form an AVMA-accredited VSO with the name of the
mark, and that endeavor moved forward without her after
she was dismissed from the organizing committee. Her
involvement with the committee may have been the very
reason that the committee adopted the mark; neverthe-
less, it is clear from the record that the College used the
mark in commerce before Lyons, and Lyons cannot in
effect appropriate it. The Board’s findings to that effect
were supported by substantial evidence.
LYONS v. AM. COLL. OF VET. SPORTS MED. AND REHAB. 17
CONCLUSION
We have considered the remaining arguments but
find them to be unpersuasive. For the foregoing reasons,
we affirm the decision of the Board.
AFFIRMED