The Trademark Trial and Appeal Board (TTAB) at the U.S. Patent and Trademark Office (USPTO) on Nov. 26 resumed proceedings in the Comicsgate trademark dispute, with petitioner Preston Poulter attempting to cancel the trademark currently owned by Cyberfrog creator Ethan Van Sciver, which was assigned to Van Sciver in April by its former owner, Antonio Malpica.

In the process, the trial schedule has once again been reset, as the Board will now proceed to determine whether Malpica’s original trademark, for comic books, continued to be used in commerce throughout its registration, which was finalized in July 2020.

Immediately, Van Sciver’s answer to the cancellation proceeding, which was filed by Poulter more than a year ago, originally against Malpica, is now due Dec. 29. After that, discovery opens on Jan. 28, 2022, and the schedule for the entire trial goes as far as June 2023.

The Board denied Van Sciver’s motion to dismiss, which attempted to have Poulter’s own applications for the Comicsgate trademark declared void ab initio, but punted on making any determination about the validity of Poulter’s applications.

Geoffrey M. McNutt, Interlocutory Attorney, wrote in his decision, “To be clear, the Board is not making a determination regarding whether or not Petitioner complied with the requirements of Trademark Act Section 1(b) when it filed its intent-to-use applications. As explained, Petitioner’s applications are not before the Board, and the Board has no jurisdiction over them at this time.”

Poulter has previously vowed the “destruction of #comicsgate,” which Van Sciver argued is ample grounds to refuse his trademark application, besides the fact that Van Sciver has been using Comicsgate as a trademark since 2018, and Poulter only submitted his application in April 2020.

Only to you. Seriously, you alpha males need to report to a safe space to be shielded from respectfully presented opposing views.

Also, I am working for the destruction of #comicsgate and would never willing hire anyone associated. So put your outrage where it belongs.

— Pocket Jacks Comics (@ComicsJacks) November 17, 2019

On Nov. 17, 2019, Poulter stated, “I am working for the destruction of #comicsgate and would never willing hire anyone associated…” which Van Sciver argued in his motion to dismiss, “[Preston Poulter]’s admitted goal, ‘. . . the destruction of #comicgate,’ is outside its zone of interest”. Indeed, how can Poulter have a bona fide intent to use a trademark in commerce when his purpose was to destroy the already in existence service mark?

On this count, the Board made no determination on the merits of the argument — Poulter’s applications could still be refused at a later date — and that for the purposes of standing in a cancellation proceeding, Poulter’s statements on social media and elsewhere about Comicsgate were “outside the pleadings”.

Instead, the Board narrowly determined that simply having an application for a trademark constitutes sufficient standing to bring a suit against whoever owns that trademark of the same name: “The Board is determining only that, for pleading purposes in this cancellation proceeding, the allegations in the petition to cancel provide sufficient notice that Petitioner has a prospective interest in the using the COMICSGATE marks.”

Love it or hate it, under federal law and regulations, it’s really easy to meet standing requirements at the Board. As a result, the proceedings unfolding will likely take years.

Now, it’s possible Malpica did just enough to use Comicsgate in commerce between 2018 and April 2021 when he assigned the mark to Van Sciver such that Van Sciver could prevail in the current trial. We’ll see.

But here is another potential scenario: The old Malpica mark could be cancelled, but we might not know that until some time after June 2023.

Next up for consideration would be the Poulter mark, which could go in the Gazette for opposition, which might not occur until 2024, at which point Van Sciver could bring a challenge against Poulter’s mark. That would send the matter right back to the TTAB for consideration, with a final determination as to the validity of Poulter mark not coming until, say, 2025 or later.

During the opposition is when TTAB would presumably consider Van Sciver’s priority claim — his application has his first use of Comicsgate in commerce dating back to June and July 2018.

Van Sciver’s own application, submitted in April, would be suspended — USPTO considers trademark applications in the order they are received — pending the outcome of the Poulter application. At that point, it would not be until after Poulter’s mark was refused before the USPTO could even consider Van Sciver’s application.

In the meantime, both parties will presumably continue using Comicsgate in commerce to varying degrees over the next several years. The outcome of these proceedings could prove important in the future, but in the near-term they don’t impact much in terms of how Van Sciver presents Comicsgate to the public, versus Poulter’s own offerings.

Eventually, USPTO will have to determine who has done the most to earn the public’s “good will” in using Comicsgate in commerce and whether the Board will recognize Van Sciver’s priority claim dating back to 2018. For now, though, expect a lot more back and forth at TTAB as the trial slowly drags on. This is going to go on for years. At the current sluggish rate, it appears the “destruction of #comicsgate” is going to take a lot longer than Poulter anticipated. 

Robert Romano is the Editor-in-Chief of Comicsgate.org.