Remember that “Here’s Johnny” portable toilets decision? Aw, sure you do, you studied it in law school, and if you didn’t, you’ve come across it. Well, it’s baaaaack, sort of. The losing side in that case waited, and waited, and waited, until Johnny Carson died, and then he pounced. He so wanted to use “Here’s Johnny” as a trademark for his company that he tried to register the phrase after Mr. Carson’s death in 2005, but the Carson estate opposed the action, and on March 25, 2010, the Trademark Trial and Appeal Board ruled that the estate has the better argument, even if we’re talking trademarks.

Even assuming that applicant could be found to have a bona fide intent to use its mark in commerce notwithstanding the injunction, our finding herein would not differ. It is incumbent on the Board to give effect to the determinations of the Sixth Circuit, including the remedy of the permanent injunction, and consider the terms of said injunction. See TBMP § 510.02(a) (2d. ed. rev. 2004). As a result, we find that applicant is precluded from registering its mark, regardless of its bona fide intent to use the mark in commerce, insofar as the injunction permanently prohibits applicant from using the applied-for mark in commerce. As noted above, a requisite condition for registration of a mark which is subject to an application based on use or an application based on intent-to-use is use of the mark in commerce. Thus, because the permanent injunction prohibits applicant from using its mark in commerce, it is a legal impossibility for applicant to obtain a registration.

Case flushed–er, closed.