Let’s get one thing out of the way first. The
Board has ruled that Langdell’s five trademarks will be cancelled in accordance with the District Court judgment. In due course. That looks very much like a final slap-down ruling, much like the other two final slap-down rulings we’ve had over the last few years, but the trademarks haven’t been cancelled yet so the fat lady has not yet sung.
There is no indication whatsoever in the ruling as to whether this closes the case or not (there are after all outstanding allegations of fraud). Fundamentally that is EA’s call and once the marks have in fact been cancelled I expect they will call it off. It’s what I would do.
The galling bit about this is that it could have been done in late 2010 rather than three years later. Indeed it should have been.
Now, back to
Langdell’s last submission, which the Board rightly ignored.
There are two arguments here.
The first one is banging an old drum, in claiming that the Velocity Micro case fully litigated the issues and precludes any further claim by anyone on the grounds of fraud and/or abandonment. Trouble with that, as we’ve rehearsed before, is that is just plain not true. The legal arguments don’t hold water, the case was settled rather than fully litigated despite what the ruling says and besides in the EA case there are new facts and allegations that were not available to Velocity Micro.
The second argument is one that we have not seen before, it is that since EA acquired a registered trademark for Mirrors Edge in 2010 it can no longer be harmed by Edge’s registered marks and therefore has no standing to bring or pursue the case.
That’s an argument that might have some merit were it not for one thing – the fact that Langdell is pursuing and prolonging this case to the bitter end is ample evidence of harm to EA at the very least in terms of the costs of continuing the legal action.
Let’s look at tactics going forward:
For the USPTO/TTAB the registrations need to be cancelled as fast as possible, otherwise this case is not going to die.
For EA and Future there is a choice. They can be satisfied when (eventually) the marks are cancelled, or they can pursue the case as regards the fraud allegations. I’d like to see the latter, but in practise the former is by far their best option and I expect it to rest there.
For Langdell, he can go back to the District Court or file an appeal. Neither seems at all likely despite his protests, since he cannot find a lawyer to present the case as he sees it and any lawyer who does will be subject to court sanctions. Other than that he must face the fact that these trademarks are dead.