Lock Horror: Safe Skies Fails To Unpick 'TSA Lock' Trade Mark

There is a temptation when reading Court Judgments to look at the outcome and scoff at the individuals handling the case thinking "I could have done better than that" or "what on earth were you thinking arguing that? ". But none of us was faced with the situation as to what evidence their client was able to provide, the degree of effort the client allowed the lawyer to put into case and so on.

However, in reading the General Court's decision in Safe Skies LLC v EUIPO (Travel Century Inc) Case T-60/17 in relation to the trade mark "TSA Lock", to an English trade mark lawyer it is difficult to understand why some avenues were pursued and others were not.

Lock Down

Following the 9/11 terrorist attacks, the US government set up the Transportation Security Administration ("TSA") in November 2001: their existence being signed into law by President George W Bush. One of the primary tasks for the TSA was to beef up airport security. As part of that, the TSA had the power to open suitcases etc. irrespective of whether they were locked or not. I am sure I am not the only person to have had his suitcase unlocked only to find on returning home that the TSA had left a leaving card explaining that they had opened my luggage and searched it.

Early on in their formation, the TSA authorised two lock manufacturers to create locks that the TSA could open: the point being to have passenger's utilise these locks which (so the theory went) would protect the public from theft by others, but enable the TSA to inspect anything that they considered to be suspicious. The two companies were Travel Century Inc ("Travel Century") and Safe Skies LLC ("Safe Skies"). It is fair to say that the relationship between these two companies has been poor right from the start, and that there have been claims and counterclaims in actions for patent infringement raging between the two parties.

Against that background, on 7th July 2005 Travel Century applied to register at the EUIPO the trade mark "TSA Lock" for metal locks for luggage (class 6), bags, backpacks, luggage, luggage straps etc in class 18, and non-metal locks for luggage in class 20. The mark was registered on 10th July 2006.

It was not until the 15th April 2014 that Safe Skies realised what Travel Century had done and made an application to the EUIPO to invalidate the "TSA Lock" trade mark registration. The grounds cited were Article 52 (1)(a) Regulation 207/2009 (now Article 59 (1)(a) of Regulation 2017/2001) read in...