What happens when rival food ordering application software uses similar names? In the case of Rapid, Inc. and Hungry Marketplace, Inc., the former sues the latter over using a mark they argued would cause a “likelihood of confusion” with their existing mark.
With software names like HUNGR (for Rapid, Inc.) and HUNGRY (for Hungry Marketplace, Inc.), it would seem like Rapid has a point. However, that point only holds if they can prove – using evidence – that they actually have priority over the mark.
Sadly, the Trademark Trial and Appeal Board (TTAB) found that Rapid’s star witness – its Vice President and Chief Information Officer, Aaron Mortensen – provided false evidence and engaged in spoliation of evidence.
What exactly does that mean?
False Evidence: Understanding Spoliation
The TTAB defined spoliation in 2019:
“Spoliation refers to ‘the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” Optimal Chem. Inc. v. Srills LLC, 2019 USPQ2d 338409, at *16 (TTAB 2019) (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)).
Put in simpler terms, it involves destroying, materially altering, or neglecting to preserve evidence that someone should have known could be needed in a case.
What Exactly Did Mr. Mortensen Do – and How Did the Board React?
In dismissing Rapid, Inc.’s claim, the TTAB did not pull any punches where Mr. Mortensen was concerned. Their decision said that he had been “dishonest with the Board” and “engaged in a pattern of fabrication and spoliation of evidence, which vitiates the probative effect of his testimony and evidence, and taints the remainder of evidence that might otherwise indirectly support Opposer’s claim of priority.”
Specifically, the Board found a variety of evidence dubious, including:
- A promotional flyer that was allegedly circulated in 2012
- Documents from Google Play and Apple detailing installations of HUNGR
- A RestaurantNews.com press release
That last piece of false evidence was particularly damning, with the press release initially giving the app a different name – TOGO rather than HUNGR. Evidence shows that Mr. Mortensen reached out to RestaurantNews.com in 2016 to “update” the name – something he denied.
He also denied getting in touch with the Wayback Machine to change the date on the archived web page of RestaurantNews.com. This testimony was proven false.
Ultimately, the Board invoked the legal maxim “falsus in uno, falsus in omnibus” (false in one thing, false in everything) regarding the remainder of his testimony – essentially saying they could not believe anything he said.
Do Not Mess With the TTAB
If there is a lesson to be learned from this horrorshow, it has to be: do not lie to the TTAB or waste their time. It will not go well for you or your company.
The only proven way to protect your mark and win your case is with solid, genuine evidence that supports your claim. If you are unable to provide that, the claim is not worth your time.