Experience
Ambev S.A.
Cervejaria Petropolis SA
Finnegan obtained an affirmance from the U.S. Court of Appeals for the Federal Circuit of a Finnegan trial victory before the Trademark Trial and Appeal Board (TTAB). The case involved Brazilian beverage company Ambev’s petition to cancel a registration for the mark FUSION (owned by another Brazilian beverage company, Cervejaria Petropolis) on abandonment grounds, which would clear the way for Ambev’s own FUSION energy drink in the United States (and related trademark applications, which were refused based on Cervejaria Petropolis’s registration).
The Federal Circuit upheld the Board’s finding that Ambev amply proved, via multiple forms of evidence, that Petropolis had not used the mark or intended to do so for three consecutive years—raising the statutory presumption of abandonment. The court further found that once the burden shifted to Petropolis, it failed to prove that it had either used the mark during the relevant period or had an intent to do so. In so holding, the court rejected Petropolis’s arguments and alleged evidence as inadmissible and irrelevant. It also agreed that any use Petropolis may have made after the three-year period of nonuse did not cure the abandonment.
A substantial part of the case involved determining what documents and testimony would be admitted into the record under the evidentiary rules. Ambev successfully objected to substantial portions of Petropolis’s evidence on various grounds, including that it was not properly authenticated, and was an improper attempt to introduce a party’s own interrogatory responses (which is permissible only in limited circumstances in Board proceedings).
This victory demonstrates Finnegan's trademark appellate experience and acumen—in addition to our ability to try cases to conclusion before the TTAB—our mastery of complex evidentiary rules, and our strategic use of those rules to best position a client’s case and challenge the adversary’s.
Cervejaria Petropolis SA v. Ambev S.A., 19-1132, Fed. Cir., Judges Prost, Moore, Wallach
Ambev S.A. v. Cervejaria Petropolis SA, Opposition No. 92059437, TTAB, Judge McCormack
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