When Checkers challenged this decision in the District Court, the trial judge granted the Commissioner's motion for summary judgment. Rejecting this reasoning, the Commissioner denied Checkers's appeal. Checkers appealed to the Commissioner of Patents and Trademarks ("Commissioner"), arguing that, because the automatic stay barred it from filing the affidavit, its failure to do so did not warrant the cancellation of its service mark registration under the Lanham Act. The United States Patent and Trademark Office then canceled Checkers's service mark registration. Checkers failed to file the required affidavit during the statutory period, allegedly on the assumption that the Bankruptcy Code's automatic stay provision barred the required filing. Checkers's section 8 filing came due while it was pursuing a petition to cancel a competing service mark registration of a debtor in bankruptcy. Under section 8 of the Lanham Act, a service mark registration is canceled at the end of six years following the date of registration, unless the registrant files an affidavit (between the fifth and sixth years) setting forth his or her current use of the mark.
Appellant, Checkers Drive-In Restaurants, Inc., ("Checkers"), claims the automatic stay barred it from filing an affidavit as normally required to maintain its federal service mark registration pursuant to section 8 of the Lanham Trademark Act, 15 U.S.C.
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