Board keeps ADOLPHE SAX & CIE registration after finding no three-year gap in use

Decision Desk · September 3, 2026 decision · Nonprecedential

The Trademark Trial and Appeal Board (the Board) is the U.S. Patent and Trademark Office panel that decides challenges to trademark registrations and appeals from refused applications. The Board marked this opinion nonprecedential, meaning it does not bind the Board in later cases.

Karel Goetghebeur owns the ADOLPHE SAX & CIE registration, a federal listing of a mark for specified products, for musical instruments. Henri Selmer Paris, S.A.S. filed a petition for cancellation, a request to remove an existing registration, claiming abandonment, which means stopping use of a mark without intending to resume it. The Board denied Selmer’s request, leaving Goetghebeur’s registration in place. Opinion, pp. 1–2, 11.

Source: the Board’s complete opinion in case 92074077, with page citations below. This report describes the decision; it is not legal advice.

The Board found no three-year stretch without use during the period Selmer challenged. It also found that Selmer had not shown the sales fell outside the ordinary course of trade, meaning genuine use in normal business rather than use merely to reserve a mark. Opinion, pp. 10–11.

Selmer had a pending application, a request to register ADOLPHE SAX, and an agency notice refusing registration based on Goetghebeur’s registration. The Board said entitlement, the right to bring this challenge, required “a direct and personal stake in the outcome of the proceeding” and a reasonable belief that the registration caused harm. The Board found that Selmer’s pending application and the refusal notice met that requirement. Opinion, pp. 3–5.

Selmer limited its claim to the period from December 15, 2015, through April 28, 2020. The parties agreed that Goetghebeur sold four saxophones identified by the mark to U.S. residents between registration and Selmer’s challenge, and that those sales counted as use of the mark. Selmer argued that the sales were too isolated to count as use in the ordinary course of business. Opinion, pp. 2, 6–7.

The Board explained that three straight years without use would initially count as evidence of abandonment, which the mark owner could counter. Selmer did not try to show directly that Goetghebeur intended not to resume use, the Board said. Opinion, p. 6.

Distinguishing an earlier case involving a small number of amplifier sales, the Board noted that this case included invoices for the U.S. saxophone sales. The Board found no indication that Goetghebeur’s U.S. sales had stopped or were being phased out. It also said ordinary business activity for an individual may differ from that of a large company. Opinion, pp. 8–9.

The Board found at least one saxophone sale in 2016 or 2017, another in 2017, and one each in 2018 and 2019. Because Selmer had not shown three years without use or that the sales fell outside Goetghebeur’s ordinary business activity, the Board said Selmer could not rely on the initial assumption of abandonment. The Board did not address Goetghebeur’s conditional suggestion to narrow the registration’s listed products to saxophones. Opinion, pp. 10–11.

This report describes the decision as issued; it does not follow any later appeal.

Sources

• The Board’s complete opinion; GleanMark case record.