“Cuffs & Collars” costume worn by Chippendales dancers found to be trade dress which could be inherently distinctive for “adult entertainment services, namely exotic dancing for women”
How later courts described this case
- “Cuffs & Collars” costume worn by Chippendales dancers found to be trade dress which could be inherently distinctive for “adult entertainment services, namely exotic dancing for women”
- “once a mark has achieved incontestable status under 15 U.S.C. § 1065, it is entitled to the benefits of section 1115(b), which precludes all but a limited number of challenges to a mark’s validity or enforceability”
- noting potential hardship to children of Korean descent who speak no Korean
- eligibility for relief "therefore ma[kes] out a 'prima facie' case"
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge
(with whom KENNEDY, Circuit Judge, concurs) (Concurring only with the result to reverse and remand and dissenting from the opinion of the majority):
The most superficial reader of the majority’s opinion will ask himself why the Wangs either (1) automatically should not be entitled to suspension of their deportation proceedings upon a showing in the hearing that the facts are as set forth in their motion or (2) should not be entitled to a hearing at all. To provide a hearing to establish the prima facie case set forth in the motion that will not compel the Attorney General to suspend the deportation proceedings strongly suggests that the hearing serves primarily objectives not related to the issue of suspension. There exists another possibility, however. It is that the refusal to reopen is because the Board of Immigration Appeals *1350 (BIA) does not accept the facts to be as alleged in the motion. Under those circumstances to deny the alien a hearing is contrary to ordinary notions of fair play and due process.
The difficulty with this case is that it is not clear why the BIA refused to reopen the deportation proceedings. After summarizing the facts set forth in the Wangs’ motions the BIA concluded that a “prima facie showing” of “extreme hardship” was not made. Neither what was lacking nor the precise nature of a “prima facie” case was set forth. Moreover, neither the statute nor the regulations mention the “prima facie” concept. 1 Perhaps the concept is used by the BIA to mean that even accepting the movant’s facts as true “extreme hardship” has not been shown. Equally plausible, however, is the possibility that there is sufficient doubt about the movant’s facts on the part of the BIA to preclude the existence of a “prima facie” case. Or perhaps both of these possible meanings are mingled with the result that the BIA means when it denies the existence of a prima facie case that it doubts whether certain facts exist and that even if they do a showing of extreme hardship would not be made out. Given the tendency of the human mind to mix categories when convenience is served, the latter possibility cannot be regarded as unlikely.
The course this court should pursue on review depends in large measure upon which of these possibilities accurately reflects the intention of the BIA in a given case. Were its refusal based solely on the belief that the facts as alleged are insufficient to constitute hardship under section 244(a)(1), the issue before us should be merely whether this conclusion reflects an abuse of discretion on the part of the Attorney General. A hearing should be unnecessary because the alien’s version of the facts has been accepted by the INS. A hearing to establish what is admitted serves no purpose. Under these circumstances the court might desire to establish standards by which the Attorney General’s exercise of discretion should be judged for the purpose of determining whether an abuse occurred. Again a hearing, such as the majority directs, is not necessary for this purpose. Were this case in that posture I would conclude the Attorney General has not abused his discretion in refusing to reopen deportation proceedings.
On the other hand, were the refusal to reopen based wholly, or even in material part, on an assertion or belief that the facts are other than the alien asserts, it would be, I believe, an abuse of discretion not to reopen deportation proceedings for a hearing. As previously indicated it is not clear on what ground the refusal to reopen was based in this case. Where facts are disputed a hearing is necessary to permit the Attorney General’s discretion to be exercised wisely and on the basis of all the relevant facts. I repeat, however, this is not necessary when the facts are admitted and the alien has been given a full and fair opportunity to set forth all the relevant facts in the motion to reopen.
A possible objection to the above reasoning is that under circumstances such as in this case a hearing is necessary not because the INS contests the facts, but merely to provide an opportunity at which the cold facts recited in the motion can be given life and color by means of an appearance by the alien and his family and their personal plea to the official presiding over the hearing. The difficulty with this is not that it would not accomplish that purpose, but that there is no basis for it in either the law or the regulations. See 8 C.F.R. §§ 3.2 , 242.22. *1351 Nor is it required by the dictates of fair play. It must be remembered that in these cases we are concerned with an alien held to be deportable on the basis of all the facts save those upon which the motion to reopen relies. To permit a disposition of the motion without a hearing when the facts are not in dispute is not unfair. This court disposes of many important issues in precisely this fashion.
An additional difficulty with the notion of a hearing to permit one last face to face encounter between the alien and the Attorney General’s representative is that if it is useful under the circumstances of this case I can see no reason why it should not also be available when any material fact, not available at the time of the deportation hearing comes into existence. To allow hearings only upon a showing of a “prima facie case,” which case does not obligate the Attorney General to suspend deportation proceedings, discriminates against many who also would like one more hearing. The answer, of course, is that to allow everyone a hearing would slow the administrative process impermissibly. Only the few, the identity of which this court largely will determine, can be permitted the boon of a hearing. I understand this answer, but I cannot accept it.
This brings me to my last point. It is that the majority, despite their explicit denial, are, in my opinion, indicating to the Attorney General that the showing by the Wangs is sufficient to require that their deportation be suspended in the absence of some substantial new reason to do otherwise and that the burden of establishing that reason is upon the Attorney General. I believe this extends our writ beyond its proper scope and deprives the Attorney General of a substantial portion of the discretion which section 244(a) vests in him.
The judicial process is quite unsuited to deal dispositively with the many issues arising from our immigration statutes and policies. Its nature limits our vision to the alien before us and conceals from us the problems of the multitudes of aliens, both within and without the Nation, who wish to reside legally within the United States. What in the judicial process may appear to be just may in fact be gross preferential treatment when viewed in its total setting. Only the administrative process can provide the overview of all relevant facts and policies upon which proper justice must rest.
I acknowledge that the administrative actions of the INS and the BIA do not always inspire the casual observer with confidence. This is regrettable. Our sporadic forays into the area, blinded as we must be by the nature of the judicial process, are not likely to improve the situation. Our task should be to insure that the Attorney General’s procedural rules are fair and that the exercise of his discretion is not abused. Our review of the manner in which he exercises his discretion should be, for reasons already stated, quite narrow. Put differently, his discretion should be broad. In my view the majority is unwisely narrowing that discretion in an opinion that purports to deal only with a procedural matter. Thus, I refuse to join in the majority opinion. The proper course would be to reverse the Board’s order and to remand for a determination by the Board whether its refusal to reopen was based upon its rejection in whole, or in material part, of the alien’s additional facts as set forth in his motion to reopen or whether it represented a genuine exercise of discretion on behalf of the Attorney General pursuant to section 244(a)(1). Following this determination, and whatever additional action the Attorney General takes with respect to this determination, the Wangs should again be permitted to petition this court for review of any adverse action.
. How the prima facie case test came to govern motions to reopen deportation proceedings has never been adequately explained. The standard appeared suddenly in a pair of 1972 BIA decisions — In re Sipus, 14 I. & N. Dec. 229 and In re Lam, 14 I. & N. Dec. 98 , where the BIA neither cited authority nor provided a rationale in support of it. The BIA offered no explanation of what the prima facie case test actually meant, and no guidance as to when it would be applied.