John Welch over at the TTABlog recently reported that oral argument will be heard by the TTAB later this month in McDonald’s opposition of McSweet LLC’s application to federally register McSweet for pickled vegetable products.

It appears many resources have been invested on both sides of this battle for more than six years; it is unclear to me why this dispute wasn’t taken to federal district court since the issue of use could be decided, in addition to the issue of whether registration should be permitted. Having said that, McSweet is claiming use since 1990 for some of the goods. Perhaps a lawsuit will follow, if McDonald’s is successful in the opposition to registration.

McDonald’s is asserting likelihood of confusion and likelihood of dilution based on McDonald’s famous Mc-family of marks. I’m thinking that this looks like an uphill battle for McSweet, so I’m not sure they’ll be lovin it when the Board rules. But see for yourself, here is McDonald’s trial brief, here is McSweet’s trial brief, and here is McDonald’s rebuttal brief.

This excerpt from McDonald’s trial brief caught my attention:

“Though McDonald’s has filed hundreds of applications covering individual marks in its ‘Mc’ formative family, the individual marks in use at any given time are constantly changing. Some family members are temporarily retired . . . (showing over 60 former registrations for Mc formative marks by McDonald’s), while new family members are being introduced. The family also includes various marks that McDonald’s uses, but for which it has not sought registration.” (citations to record and most parentheticals omitted).

McSweet appears focused on arguing for peaceful coexistence with the specific federally-registered Mc-formative trademarks asserted by McDonald’s in the proceeding, and McDonald’s wants to be able to rely on the fact that members of its Mc-family of marks come and go (finessing the question of abandonment as to temporarily retired members), which increases the likelihood of confusion and dilution, according to McDonald’s.

Although McDonald’s didn’t use the term, the concept reminds me of all the recent discussion about fluid trademarks — might this case produce the newest type of fluid trademark, i.e., a fluid family of trademarks?