Tag Archives | incontestability

Incontestable Status of Mark Found Generic Does Not Prevent Exceptional Case Attorney Fees

REACTIVEGeoDynamics sued DynaEnergetics for trademark  infringement of GeoDynamics’ REACTIVE trademark. GeoDynamics owned U.S. Trademark Registration No. 3,496,381 for the REACTIVE mark. After a bench trial the court found that REACTIVE was generic for the goods of fracturing charges for use in oil and gas wells and ordered the registration cancelled.

The defendant moved for fees and the court agreed that GeoDynamic’s trademark case was exceptional based on the weakness of its case. GeoDynamic asserted that the case was not exceptional because, among other reasons, the REACTIVE mark had achieved incontestability status at the USPTO. The court rejected that view. The incontestability status was not a bar to finding the case was exceptional.

Incontestability is somewhat misleading because “incontestability” is only achieved with respect to some grounds on which the registration …

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