I, Todd C. Bank, am a lawyer who personally petitioned the United States Patent and Trademark Office to cancel a trademark that it had granted to Al Johnson’s Swedish Restaurant and Butik (“Al Johnson’s”) in Sister Bay (Door County), Wisconsin. The trademark is for “goats on a roof of grass” in connection with “services for providing food and drink.” The “goats” are actual live goats. By definition, the trademark gives Al Johnson’s the exclusive right to do business as a provider of food and drink while having goats on a grass roof. It does not take a lawyer, much less one who specializes in trademark law, to realize that this trademark should not have been granted. Imagine, for example, a convenience store that has a dog along with a trademark for “convenience store with a dog,” thus giving the store the legal right to stop any other convenience store from having a dog . . . or to demand money for the privilege! If Al Johnson’s hired an employee to stand in front of its restaurant all day and sing Swedish folk songs, would Al Johnson’s be entitled to obtain a trademark for “singing Swedish folk songs in front of a restaurant”? The answer certainly would seem to be “yes” if the goat trademark is valid. If a restaurant’s front yard had a pond that froze in the wintertime, could that restaurant be given, under trademark law, the exclusive right to have its employees (or customers) “skate on a frozen pond in front of a restaurant”? Imagine the reaction of another restaurant owner who, on a cold January day, receives a cease-and-desist letter . . . on an attorney’s stationery.

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     Speaking of an attorney’s stationery, Al Johnson’s, in 2009, sued a grocery-and-gift store in Georgia because the store had goats on its grass roof. Interestingly, the store was, and still is, called “Goats on the Roof.” The case was Al Johnson’s Swedish Restaurant & Butik, Inc. v. Goats on the Roof at Tiger Mtn Market, LLC, Case No. 2:09-cv-00192-WCO, Northern District of Georgia. According to The Wall Street Journal (Lars Johnson Has Goats on His Roof and a Stable of Lawyers to Prove It, Sept. 17, 2010, p.A1; available online but a subscription is required to read the full article), the store “agreed to pay Al Johnson’s a fee for the right to use roof goats as a marketing tool in Georgia, South Carolina, North Carolina and Tennessee.” The store’s owner said that “legally we could fight it, because it is ridiculous,” but that it would have been too expensive.

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     Below are all of the relevant documents from my litigation seeking to cancel the goat trademark (my petition named both the U.S. and international versions of the trademark, but because I paid a fee to challenge only one trademark, the challenge to the international one did not proceed. In any event, a recent search of the international trademark (no. 3,942,832) at https://tsdr.uspto.gov did not produce any results, thus indicating that it is not active).

 

      Katrina G. Hull, who, as a lawyer with a Milwaukee law firm called Michael Best & Friedrich LLP, had been one of the lawyers representing Al Johnson’s against the Georgia store, was the primary lawyer representing Al Johnson’s in my case. This time, Ms. Hull was part of a “Washington, D.C.” law firm called Markery Law, LLC. I use quotation marks because the firm’s D.C. address is a ‘virtual’ office, whereas Ms. Hull uses a p.o. box in Maryland . . . even though she works in Milwaukee. The firm’s two other lawyers also use that p.o. box.

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    I believe that any fair-minded person who reviews the documents below will conclude that Ms. Hull lied her way through the litigation before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (“TTAB”) and before a federal appeals court, i.e., the United States Court of Appeals for the Federal Circuit. Sadly, she got away with it. Although the TTAB ruled against me because of its misunderstandings of certain legal issues, the TTAB did not appear to act in bad faith in making its ruling. By contrast, it is obvious that the appeals-court judges saw me as an annoying gadfly and were simply out to punish me. The appeals-court judges were wrong (and blatantly so) in ruling against me on the appeal, in sanctioning me in the form of having to pay the restaurant’s legal fees, and in awarding all of the legal fees that the restaurant requested despite the fact that Markery Law engaged in improper billing practices as a matter of course, which might be why Ms. Hull tried to have the clerk’s office of the court decide the amount of the legal fees even though she surely knew that such a determination was for the judges to make. Even the judges, biased against me as they were, issued a ruling that rejected Ms. Hull’s attempt. However, they proceeded, on the other hand, not to acknowledge, let alone address, any of the points I raised about Markery Law’s billing practices.

   

     The Supreme Court denied my request to hear the case, but it denies about 99.9 percent (literally) of requests to hear a case; the denial is no indication of how that court would have ruled on any of the various issues if it had taken the case.

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     Although I did not succeed in challenging the goat trademark, the appeals court did not rule on whether the trademark is valid or not. Instead, the court agreed with the TTAB (which also did not rule on the trademark’s validity) that I, who was not seeking to put goats on the grass roof of my restaurant or grocery store, did not have enough at stake in order to have standing to challenge the trademark. Thus, I hope that the opportunity to represent such a business will come along so that I can resume the fight . . . pro bono.