TMEP 1206.04(d): Implicit Consent

October 2017 Edition of the TMEP

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1206.04(d)    Implicit Consent

Consent may sometimes be inferred from the actions of the individual. In re D.B. Kaplan Delicatessen, 225 USPQ 342, 344 (TTAB 1985) (finding consent to the use and registration of the mark D. B. KAPLAN’S DELICATESSEN implicit in the terms of a "buy-out" agreement that relinquished all property rights in the name and forbade its use by the named party in any subsequent business). However, the mere incorporation of a business or consent to the business’s use of the mark does not constitute implied consent to the registration of the mark. Krause v. Krause Publ'ns, Inc., 76 USPQ2d 1904, 1912 (TTAB 2005) (finding cancellation petitioner did not give implied consent to register when he incorporated a business utilizing his name, sold his stock in the business, and pledged the business's assets, including trademarks, to finance expansion and acquisitions, where there was no evidence that the individual expressly stated that the mark was the property of the corporation or agreed to refrain from use of the name in any subsequent business); In re New John Nissen Mannequins, 227 USPQ 569 (TTAB 1985) (finding consent to register JOHN NISSEN MANNEQUINS not implied from appearance of the name "John Nissen" in a deed of incorporation of applicant’s predecessor under the name "John Nissen Mannequins," nor from existence of foreign registrations for trademarks incorporating the name).