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To read comments to this article, go here
The End to the Trademark Tale
Wednesday, March 29 2006 @ 07:33 PM EST

You will remember SCO's attempt to trademark UNIX SYSTEM LABORATORIES. The USPTO denied the application, as you can see in their letter of final denial [PDF] dated September 12, 2005. They had six months to respond to the letter, and if they failed, that would usually be the end of the process.

That deadline came and went on March 13, 2006. According to the USPTO website, SCO did not file any response. What normally happens next? The application would be marked "Abandoned."

Technically, they can appeal, but that seems unlikely. Why do I say it's unlikely? Because if you read the letter they received telling them what they'd need to do to change the USPTO's mind, you will notice on page 4, they were told they'd need to be able to say either of these two things:

If appropriate, one of the following is an acceptable statement to establish a legal relationship and unity of control over the marks, if accurate:
“The SCO Group, Inc. is the sole owner of Caldera International, Inc. and X/Open Co. Ltd. and thus controls the activities and operations, including the selection, adoption and use of the trademarks and service marks.”

OR

“The SCO Group, Inc. is owner of substantially all of the stock of Caldera International, Inc. and X/Open Co. Ltd. and thus controls the activities and operations, including the selection, adoption and use of the trademarks and service mark.

As stated above, the applicant's explanation should generally be presented in an affidavit or with a declaration under 37 C.F.R. §2.20. The following is a properly worded declaration under 37 C.F.R. §2.20.

The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements and the like may jeopardize the validity of the application or document or any resulting registration, declares that the facts set forth in this application are true; all statements made of his/her own knowledge are true; and all statements made on information and belief are believed to be true.

There were more items SCO would have needed to address, but how could they get past this part? They can't say they are the sole owner of X/Open. Not even SCO would go that far. Even if they tried, it wouldn't fly. So, that adventure is over. They could file an appeal, as I said, but normally they would have filed it when they filed their August 15 letter to the USPTO in which they claimed they deserved the mark, and there is no indication they have filed any appeal to date. To read the letter, go to http://portal.uspto.gov/external/portal/tow and type in 78438912 in the box marked "Number" and you will find all the documents.

The USPTO outlined for SCO what their response options were:

Response Options

If applicant fails to respond to this final action within six months of the mailing date, the application will be abandoned. 15 U.S.C. §1062(b); 37 C.F.R. §2.65(a). Applicant may respond to this final action by:

(1) submitting a response that fully satisfies all outstanding requirements, if feasible (37 C.F.R. §2.64(a)); and/or

(2) filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class (37 C.F.R. §§2.6(a)(18) and 2.64(a); TMEP §§715.01 and 1501 et seq.; TBMP Chapter 1200).

In certain circumstances, a petition to the Director may be filed to review a final action that is limited to procedural issues, pursuant to 37 C.F.R. §2.63(b)(2). 37 C.F.R. §2.64(a). See 37 C.F.R. §2.146(b), TMEP §1704, and TBMP Chapter 1201.05 for an explanation of petitionable matters. The petition fee is $100. 37 C.F.R. §2.6(a)(15).

The six months are over. They didn't do either. So this should be The End. Normally, anyway. Of course, SCO doesn't always do things exactly, precisely, like everyone else, now that I think of it, but normally this would be the end of the UNIX SYSTEMS LABORATORIES trademark tale, and I think it is.


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