The Court of Appeals for the Federal Circuit in the USA has held that an application to register the mark Dykes on Bikesas a trade mark by the San Francisco Women’s Motorcycle Contingent cannot be barred from registration on mortality grounds. The application was made by a group of lesbian bikers who lead the annual San Francisco gay pride march, and was turned down twice by the US Patent Office. However the IPKat reports that the decision itself is very narrow as the mark itself was not considered. Opposition to the mark was brought by a Michael McDermott on the grounds that it is immoral or offensive who argued that by including the term ‘dykes’ was disparaging, and also that the mark was scandalous because it was associated with a pattern of illegal activity by the applicants
But the Court’s the decision is based on whether the opponent had standing to oppose the mark. According to the court’s past case law, to have standing in opposition proceedings, a party must have (i) a real interest in the proceedings and (ii) reasonable basis for his belief that he would be damaged by registration. A previous finding that McDermott had a real interest went unopposed by the trade mark applicants, and so the case turned on whether he had a reasonable basis for his belief that he would be damaged by the registration. The Court found that he had no such basis for the simple reason that he was a man, and so was not ‘implicated’ by the term ‘dykes’. Additionally, there was no evidence that others in a similar position to McDermott believed that they would be damaged by the mark.