In re Shinnecock Smoke Shop, No. 09-1100
Trademark Trial and Appeal Board judgment is affirmed where: 1) the board properly affirmed the rejection of petitioner's trademark application, as the Shinnecock Indian Nation is an institution and thus falls within the protection of 15 U.S.C. sec. 1052(a); 2) the USPTO's refusal to register his marks was not a violation of the due process clause of the Fifth Amendment, as the petitioner was provided a full opportunity to prosecute his applications and to appeal the examining attorney's final rejections to the Board; 3) the refusal did not violate petitioner's equal protection rights, as the Board and the examining attorney had legitimate, nondiscriminatory reasons for denying registration; and 4) the refusal to register the mark was not racial discrimination in violation of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, as petitioner failed to establish any racial discrimination, and he has no private right of action under the treaty.
Appeal from the United States Patent and Trademark Office Trademark Trial and Appeal Board.
Decided: July 1, 2009
Before Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.
Opinion by CLEVENGE, Circuit Judge.
For Appellant: Scott Michael Moore, Moore International Law Offices, New York, NY.
For the Director of the United States Patent and Trademark Office: Thomas V. Shaw, United States Patent and Trademark Office, Alexandria, VA.