# P. A. B. Produits et Appareils de Beaute v. Satinine Societa in Nome Collettivo di S.A. e. M. Usellini

> Court of Customs and Patent Appeals · February 16, 1978 · 570 F.2d 328

URL: https://www.frixlaw.com/law-library/cases/8904595

## Case

- **Full name:** P. A. B. PRODUITS ET APPAREILS de BEAUTE v. SATININE SOCIETA in NOME COLLETTIVO di S.A. e. M. USELLINI
- **Court:** Court of Customs and Patent Appeals
- **Decided:** February 16, 1978
- **Citations:** 570 F.2d 328; 196 U.S.P.Q. (BNA) 801; 1978 CCPA LEXIS 330
- **Precedential status:** Published
- **Opinion:** Concurring in part by Miller
- **Judges:** Baldwin, Lane, Miller
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8904595

## Opinion text

MILLER, Judge,
concurring in part and dissenting in part.
Although agreeing with the result reached by the majority opinion on the two-year nonuse issue, I cannot agree that Fed.R.Civ.P. 15(b) should not apply. If registrant really considered that it did not have fair notice that petitioner was attempting to establish a two-year period of nonuse beginning July 12, 1973, it should have moved for reconsideration. However, as pointed out by the majority, the burden was on petitioner to show nonuse for two consecutive years and to fill the gap between June 23, 1975, and July 12, 1975, by evidence rather than by implication. Under Fed.R.Civ.P. 26(e)(3), petitioner could have requested supplementation of registrant’s prior response for this purpose.
The “scant record,” as the majority puts it, is not sufficient to support the board’s conclusion that registrant’s shipments were so minimal that the specter is raised that they were contrived for maintenance of registration rather than to establish a commercial market in this country. However, neither is the record adequate for making new law on “balance of the equities,” as the majority proposes to do. The case should be remanded for development of an adequate record, with particular emphasis on appellee-petitioner’s burden of showing token use and appellant-registrant’s burden of explaining and justifying such use.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8904595. Public record. Not legal advice.