On December 9, 2019, the United States Court of Appeals for the Federal Circuit sanctioned lawyer/litigant Todd C. Bank1 for filing a frivolous pro se action to cancel the trademark of a Swedish Restaurant operating in Wisconsin. See Bank v. Al Johnson’s Swedish Restaurant & Butik, Inc., No. 2019-1880 (Fed. Cir. Dec. 9, 2019). The restaurant used trade dress with pictures of goats on a grass roof. Mr. Bank’s argument in favor of cancellation? The “Goats on the Roof” trade dress is “disparaging” because it “is demeaning to” goats, which, in turn, “is offensive to [him] and denigrates the value he [and others] place on the respect, dignity, and worth of animals.” Id. at 5. The court, however, found two problems with the argument.
First, the United States Supreme Court held in 2017 that Lanham Act’s prohibition on the registration of “disparaging” marks is unconstitutional under the First Amendment.2 Therefore, said the appeals court, “[t]o the extent that Mr. Bank relies upon disparagement . . . his argument is without merit.” Id.
Second, Bank lacked standing. He had no “direct and personal stake in the outcome” of the litigation. More particularly, he lacked a specific commercial interest that was not shared by the general public.
The Swedish restaurant moved for costs and attorney fees under Federal Rule of Appellate Procedure 38. Bank’s “disparagement claim was based on an unconstitutional and stricken section of the Lanham Act, he raises it again before this court. Based on these facts and our analysis, Mr. Bank’s appeal is frivolous.” Id. at 8-9. As a result, the court awared costs and fees against him. “Even though Mr. Bank appears pro se before us, he is an attorney and bears the commensurate obligations.” Id. at 9.