The Eastern District of Virginia recently opined on the issue of standing to sue under Sections 14(3) and 43(a) of the Lanham Act and reversed the TTAB’s decision cancelling Belmora’s FLANAX mark. Belmora began using its FLANAX mark in the United States for pain relievers in 2004 and obtained a federal registration in 2005. Bayer had sold similar pain relievers in Mexico under its Mexican-registered FLANAX mark since the 1970s, but had not used the FLANAX mark in the United States. Bayer successfully petitioned to cancel Belmora’s FLANAX registration in April 2014 pursuant to Section 14(3) of the Lanham Act, which prohibits misrepresentation as to source. Bayer then brought suit against Belmora under Section 43(a), which was consolidated with Belmora’s appeal of the TTAB decision.
