Digest of Cutino v. Nightlife Media, Inc., No. 2013-1541 (Fed. Cir. Aug. 7, 2014) (non- precedential). On appeal from USTPO. Before Circuit Judges Moore, Reyna, and Taranto (per curiam).

Procedural Posture: Opposer, Mr. Cutino, appealed the Trademark Trial and Appeal Board (“TTAB”) decision dismissing a trademark opposition. CAFC vacated the Board’s decision and remanded for further proceedings.

  • Trademarks: The CAFC found the Board committed legal error in ignoring the evidentiary effect of Applicant’s admissions. Although the Opposer had failed to timely submit evidence regarding its federal registration of the NIGHTLIFE mark, Applicant had admitted in its answer that Mr. Cutino “is the owner of the ‘mark’ NIGHTLIFE.” The CAFC held that Opposer’s registration should be deemed to be of record if the Applicant’s answer contains an admission of Opposer’s ownership and further held that the mark should have been reviewed as part of the record. In refusing to consider the registration for the NIGHTLIFE mark, CAFC found the Board abused its discretion and vacated the decision and remanded for further proceedings considering the NIGHTLIFE registration.