In the epic battle between Cosmic Crusaders and LaVerne John Andrusiek over the character Captain Cannabis, a court decided that the trademark belonged to Andrusiak. Cosmic Crusaders registered and received the trademark claiming it had started using the character in 2014. According to the lawsuit, when Andrusiek learned about the registration he filed a petition to cancel the registration for Cosmic Crusaders saying he had been using the name since the 1970’s.
Since both parties used the name for the same purposes, i.e., comic books, the Trademark Trial and Appeal Board (TTAB) decided on who had used it first. If Andrusiek could prove he had used it before Cosmic Crusaders, he would get the trademark. The TTAB reviewed the artist’s evidence, took the registration away from Cosmic Crusaders, and gave it to Andrusiak. That’s when it went to court, but the court said that the TTAB made the right decision.
The court opinion cited:
Since at least January 25, 1999 when [Andrusiek] engaged in sales activities at the NATPE trade fair in New Orleans, Louisiana and bona fide commercial trade in Comic Books starting September 25, 2006 by way of direct sale of a 420/Captain Cannabis comic book to a customer in the state of Florida. Andrusiek “also claimed priority based on his alleged ‘sales and marketing activities through his CAPTAINCANNABIS.COM web portal since April 22, 1999.”
The Federal Circuit decided that the U.S. Patent and Trademark Office was right to give the trademark to Andrusiek because he continued to actively use the character during the time that Cosmic Crusaders had applied for its trademark.
The TTAB decided that since the two parties were using the character in the same way, consumers would be confused with two competing versions. Thus it was given to Andrusiek.
The court did acknowledge that the audience for the comic was small, but that was relevant. The most important part was who used it first and Andrusiak was also able to point to various media mentions that associated him with Captain Cannabis. The court opinion stated, “The Board relied also on multiple news and magazine articles associating CAPTAIN CANNABIS with Andrusiek’s comic books, in periodicals whose apparently undisputed readership totaled approximately 750,000 people per month. Id. at *11 (citing High Times Magazine, with an undisputed estimated circulation of ~236,000 per month, and Culture Magazine, with an undisputed estimated circulation of ~500,000 per month).”
Cosmic Crusaders argued that Andrusiek wasn’t using Captain Crusader very much and that’s why they should get it. However, the judge noted that Cosmic Crusaders weren’t acknowledging that Andusiek was involved with a screenplay, an animated video, and a comic entitled “Captain Cannabis: 40th Anniversary.” The Court of Appeals ultimately said the trademark battle was won by Andrusiek.
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