This is аn appeal from the order of the Trademark Trial and Appeal Board (Board) of the United States Patent and Trademark Office granting the motion for summary judgment filed by Ullenberg Corp. (Ullen-berg) on the ground that Jewelers Vigilance Committee, Inc. (JVC) failed to plead sufficient facts to establish its standing tо be heard in this opposition proceeding filed pursuant to 15 U.S.C. § 1063 (1982). We vacate and remand.
*491 BACKGROUND
JVC opposed the application by Ullen-berg to register the following mark for “precious stones, namely diamonds,” citing sections 2(a) and 2(d) of the Lanham Act, 15 U.S.C. § 1052(a), (d) (1982), and of which Ullenberg asserts use since 1974:
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JVC is a nonprofit trade association representing 2,500 firms in the United States, including suppliers, wholesalers, distributors and retailers of diamonds and diamond jewelry. The unchallenged organizational purpose of JVC is to protect public confidences in the jewelry industry, develop and maintain trade standards, and promote fair dealing in the jewelry industry. JVC is a voluntary membership organization financed by members’ dues and contributions from members and nonmembers.
DeBeers Consolidated Mines Limited (DeBeers), a non-United States entity, allegedly controls approximately 85 percent of the rough gem diamonds that сome to the market each year. JVC’s members purchase diamonds that have come to the market through the DeBeers organization. DeBeers has promoted diamond jewelry generally for more than forty years. In 1948 DeBeers began using the slogan “A Diamond is Forever” which has been continuously used since 1948 in conjunction with the name of DeBeers to promote diamond jewelry. JVC’s members and others in the trade use the name and slogan of DeBeers to promote diamond jewelry generally.
In answers to interrogatories, Ullenberg stated that it did not know whether its goods contained diamonds originating with DeBeers and that it had had no direct business dealing with DeBeers. Thus, its assertion of exclusive rights in the mark sought to be registered is based on its own use of the mark, not as a corporate affiliate or licensee of DeBeers.
JVC asserts that registration of the name DeBeers in Ullenberg’s mark will causе damage to it and its members in the following ways:
1. Use of the mark by Ullenberg would erroneously lead purchasers to think that Ullenberg is associated with DeBeers or that the goods are sponsored by DeBeers. Any defect or fault found with Ullenberg’s goods would necessarily reflect adversely upon, and seriously injure, the goodwill that has been established over many years as a result of the use of the name of DeBeers in association with the promotion of diamond jewelry generally.
2. If Ullenberg is granted the registration, it would thereby obtain a prima facie exclusive right to use such mark and such exclusive right would damage and injurе JVC, its members and other jewelers who use the name DeBeers to promote diamond jewelry.
3. Loss of membership dues will result if JVC cannot oppose this registration because its members will have less confidence in JVC’s ability to police unfair and deceptive practices in the industry.
The Board’s Decision
The Board dеtermined that JVC failed to plead sufficient facts to establish its standing in this opposition proceeding. The Board held that because the opposition was based on section 2(a) and section 2(d) of the Lanham Act, 15 U.S.C. § 1052(a), (d),
1
an opposition cannot be sustained unless an opposer hаs a proprietary right in the mark which is the basis for the opposition. The
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Board cited the decisions in
The University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co.,
ISSUE
The issue presented in this appeal is whether JVC pleaded sufficient facts to establish its standing to be heard in this opposition proceeding.
OPINION
Because the motion for summary judgment in this case was granted only upon the pleadings, it is in the nature of a motion to dismiss and we treat it as such. For purposes of ruling on a motion tо dismiss for want of standing, both the Board and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.
See Selva & Sons, Inc. v. Nina Footwear, Inc.,
The Board, in effect, by requiring JVC to possess a proprietary interest in the name DeBeers in order to have the requisite standing to bring an opposition proceeding under sections 2(a) or 2(d), confused a merits determination — whether Ullenberg is entitled to registrаtion of its mark — with a standing determination — whether JVC has a right to bring the opposition proceeding.
Under section 13 of the Lanham Act, “[a]ny person who believes that he would be
damaged by the registration of a mark
upon the principal register may ... file an opposition ... stating the grounds therefor.” 15 U.S.C. § 1063 (1982) (emphasis added). Hence, an oрposer’s right — or standing — to bring an opposition proceeding flows from this section of the Act. While there is no definition of the section 13 word “damaged” appearing in the phrase “damaged by the registration of the mark,” one of our predecessor courts has stated that “[t]he purpose in requiring standing is to prevent litigation where there is no real controversy between the parties, where a plaintiff, petitioner or op-poser, is no more than an intermeddler.”
Lipton Indus., Inc. v. Ralston Purina Co.,
alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.
Id.
at 204,
In
Warth v. Seldin,
Section 13 of the Lanham Act is such a statute. Of course, the constitutional requirement remains that the opposer “must allege a distinct and palрable injury to himself, even if it is an injury shared by a large class of other possible litigants.... But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, аnd, indeed, may invoke the general public interest in support of their claim.”
Warth,
In the usual case where an opposition is brought under section 2(d), the opposer does have a proрrietary interest in a mark, and standing is afforded through its assertion that it will incur some direct injury to its own established trade identity if an applicant’s mark is registered.
See e.g. Federated Foods, Inc. v. Fort Howard Paper Co.,
There is no question that a trade association, having a real interest in the outcome of the proceedings, may maintain an opposition without proprietary rights in a mark or without asserting that it has a right or has an interest in using the alleged mаrk sought to be registered by an applicant.
See Tanners’ Council,
In this case, JVC must have alleged an adverse affect on its own interests
or
those of its members which will result from the issuance of the registration to Ullen-berg. JVC has met that requirement. As
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distributors of DeBeers’ diamonds and users of that name to promote the sale of such goods, JVC’s members have personal interests in continuing such use and in negating Ullenberg’s assertion of exclusive rights in the mark DeBeers, which would be
prima facie
recognized by the grant of the registration which Ullenberg seeks. JVC as the watchdog for the industry has the same type of interest as the Scotch Whiskey Association in preventing the imprimatur of registration from being given to one assertedly engaged in deception of the public. These allegations demonstrate a real interest in the outcome of the proceeding based on a likelihood of confusion with the DeBeers’ trade name. Thus JVC is more than a meddlesome party.
See Upton,
Ullenberg and the Board primarily rely on Otto Roth, a case that dealt with the merits of an opposition, not standing. The opposer in Otto Roth asserted as its grounds for unregistrability of the applicant’s mark ESPRIT NOUVEAU for cheese, that there was a likelihood of confusion of source by reason of opposer’s prior use of an allegedly similar mark, a section 2(d) claim. The opposer’s mark was a descriptive term (BRIE NOUVEAU meaning “new brie” for cheese) as was determined by a prior dеnial of registration on the Principal Register. Without the establishment of secondary meaning (which opposer there did not attempt to prove), a descriptive term does not indicate source and, a fortiori, on the merits opposer failed to prove that purchasers would believe оp-poser was the source of applicant’s goods. The opposer in Otto Roth did not fail because of lack of standing, which by implication was present, but on the merits.
Furthermore, the Notre Dame decision is not a standing case. There is no discussion in that case of whether a proprietary interest in a mark is required in оrder for an opposer to have standing to oppose. Rather, the court held that the fame of the University of Notre Dame was insufficient in itself to establish a false connection under section 2(a) or a likelihood of confusion under section 2(d) of the Lanham Act between the University аnd the source of NOTRE DAME cheese.
We need not decide if the alleged damage solely to JVC is sufficient to establish its standing as opposer since “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.”
Warth,
“(a) its members would otherwise have stаnding to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Id.
Under the above test, we conclude that JVC in this case has standing to rеpresent its members. First, since damage, personal to the members if registration is allowed, has been pled, JVC’s members would have standing in their own right. Second, it is uncontested that the organizational purpose of JVC is to promote honest and fair commercial dealing in the jewelry industry — activities assеrted to be disrupted if
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Ullenberg’s alleged mark is registered. Finally, neither the proceeding nor the relief sought — denial of the application — requires the actual participation of JVC’s members in the proceeding. Once standing is established using this analysis, JVC has “standing to seek relief on the basis of the legal rights and interest of others.”
Warth,
CONCLUSION
The Board’s order granting summary judgment is vacated and the case is remanded to the Board for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. Section 2 provides:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter ...
(d) Consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office or a mark or trade name previously used in the United States by аnother and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. ...
. Section 2(e) provides that a trademark may not be registered if it "[c]onsists of a mark which, (1) when applied to the goods of the applicant is merely descriptive or deceptively misdescriptive of them...."