200 Kelsey Associates, LLCv.Delan Enterprises Incorporated and One Step Up, Ltd.

Trademark Trial and Appeal Board

Jun 11, 2008

No. 92044571 (T.T.A.B. Jun. 11, 2008)

Mailed:
June 11, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

200 Kelsey Associates, LLC
v.
Delan Enterprises Incorporated and One Step Up, Ltd.
_____

Cancellation No. 92044571
_____

Edmund J. Ferdinand, III, Esq. of Grimes & Battersby, LLP
for 200 Kelsey Associates, LLC.

Harlan M. Lazarus of Lazarus and Lazarus, P.C. for Delan
Enterprises Incorporated and One Step Up., Ltd.
_____

Before Cataldo, Bergsman and Wellington, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Delan Enterprises Incorporated was the registrant for
the mark JONATHAN LOGAN, in a script format shown below, for
“women’s dresses”1 and “women’s dresses, pant suits, pants,
shorts, culottes, blouses, jackets, vests and coats.”2

1 Registration No. 0549924, issued October 23, 1951; Sections 8
and 15 affidavits accepted and acknowledged; third renewal.
2 Registration No. 0937651, issued July 1, 1972; Sections 8 and
15 affidavits accepted and acknowledged; second renewal.
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Cancellation No. 92044571
2
On April 6, 2006, Delan Enterprises Incorporated
assigned its ownership of the JONATHAN LOGAN trademark, the
associated registrations, and the goodwill associated
therewith to One Step Up, Ltd. The assignment was recorded
in the Assignment Branch of the U.S. Patent and Trademark
Office on July 20, 2006, at Reel 3367, Frame 0535. In the
Board’s Order dated February 6, 2007, One Step Up, Ltd. was
joined as a party defendant. Delan Enterprises Incorporated
and One Step Up, Ltd. are referred to as respondents.
200 Kelsey Associates, LLC (“petitioner”), has
petitioned to cancel respondents’ registrations on the
ground of abandonment.
Respondents denied the essential allegations in the
petition for cancellation.
Evidentiary Issues
Through the testimony deposition of Stacy Haigney, in-
house counsel for Burlington Coat Factory Warehouse
Corporation, a purported purchaser of JONATHAN LOGAN
clothing, respondents sought to introduce the following
documents:
1. A form provided by “Jonathan Logan” to buyers for
notes regarding purchases;3

3 Haigney Dep., p. 39, Exhibits 3 and 4.
Cancellation No. 92044571
3
2. A “Jonathan Logan” invoice to Burlington Coat
Factory dated March 9, 2005;4
3. A copy of a computer generated purchase order from
“Jonathan Logan,” vendor, to Modecraft Fashions5 dated March
31, 2005;6 and,
4. A computer printout of a “Vendor Payment History
Report” for “Jonathan Logan” listing invoices dated August,
October, November, and December 2004 and February through
May 2005.7
Petitioner objected to introduction of the above-noted
documents on the grounds that they are hearsay, that they
were not properly authenticated and that Mr. Haigney is not
a qualified witness. Petitioner argued that Mr. Haigney was
not qualified to authenticate the documents because, as in-
house counsel, he is not involved in buying or selling
merchandise, and therefore he does not have personal
knowledge regarding the documents.8
Rule 803(6) of the Federal Rules of Evidence excepts
from the hearsay rule “a memorandum, report, record, or data
compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from

4 Haigney Dep., Exhibit 5.
5 Modecraft Fashions is a dba used by Burlington Coat Factory to
make wholesale purchases. (Haigney Dep., p. 23).
6 Haigney Dep., Exhibit 6.
7 Haigney Dep., Exhibits 7 and 8.
8 Petitioner’s Brief, p. 9.
Cancellation No. 92044571
4
information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity
to make the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other
qualified witness, . . . unless the source of information on
the method or circumstances of preparation indicate lack of
trustworthiness.”
Thus, the rule requires: (a) a memorandum, etc. in any
form; (b) of acts, etc., (c) made at or near the time; (d)
by, or from information transmitted by, a person with
knowledge; (e) that the memorandum, etc. was kept in the
course of a regularly conducted business activity; (f) that
it was the regular practice of that business activity to
make the memorandum, etc.; and (g) that the fulfillment of
the preceding conditions is shown by the testimony of the
custodian of the memorandum, etc. or another qualified
witness.
The “qualified witness” does not have to have personal
knowledge of the contents of the records. It is sufficient
if the witness has personal knowledge regarding the records
and how they are kept in the regular course of business. In
other words, the witness may not simply testify about what
he has read or has been allowed to review. Olin Corporation
v. Hydrotreat, Inc., 210 USPQ 63, 67 (TTAB 1981). Although
Cancellation No. 92044571
5
Mr. Haigney has no duties relating to sales and marketing,
his testimony establishes that he is familiar with his
company’s business processes. For example, on cross-
examination, Mr. Haigney testified, in detail, regarding how
the buyers for Burlington Coat Factory visit vendor
showrooms (e.g., “Jonathan Logan”) and select merchandise
using the forms identified as Exhibits 3 and 4.9 Mr.
Haigney further testified that after selecting merchandise
from a vendor, the buyers give their notes to a staff person
who enters them into the company computer system that
generates purchaser orders (Exhibit 6).10 Finally, Mr.
Haigney testified that exhibits 7 and 8 were reports
produced at his request from his company’s computer
system.11
In view of the foregoing, we are satisfied that the
documents introduced by Mr. Haigney are authentic records of
regularly conducted business of the Burlington Coat Factory
Warehouse Corporation. Petitioner’s objection to
respondents’ Exhibits 3-8 on the grounds that they are
hearsay, that they were not properly authenticated and that
Mr. Haigney is not a qualified witness, is overruled.
Petitioner also objected to the Jonathan
Logan/Modecraft Fashions purchase order and the Burlington

9 Haigney Dep., pp. 26 – 27 and 39.
10 Haigney Dep. pp. 28 - 29.
11 Haigney Dep., pp. 50 – 52.
Cancellation No. 92044571
6
Coat Factory Warehouse Corporation “Vendor Payment History
Report” for “Jonathan Logan” on the ground that these
documents were not produced by respondents during discovery.
During discovery, petitioner sought documents evidencing
respondents’ sales of JONATHAN LOGAN brand clothing for each
year from 2000 to 2006. Two days before the Haigney
deposition, and long after the close of discovery,
respondents served petitioner with a copy of the Jonathan
Logan/Modecraft Fashions purchase order. Respondents
produced the Burlington Coat Factory Warehouse Corporation
“Vendor Payment History Report” for “Jonathan Logan” for the
first time at the Haigney deposition.12
First, we note that respondents’ Exhibits 6, 7 and 8
are the records of Burlington Coat Factory Warehouse
Corporation, not records of the respondents. Second, in
response to petitioner’s request for production of
documents, respondents lodged the general objection that the
requests “seek information which is not within Registrant’s
possession, custody, or control.”13 By their objection,
respondents put petitioner on notice that they were
producing whatever documents were in their possession,
custody, or control and that they were not producing

12 Petitioner’s Brief, p. 5.
13 General Objection No. 7 in response to petitioner’s request for
production of documents, attached as Exhibit 2 to the Declaration
of Edmund J. Ferdinand, III, petitioner’s counsel, submitted in
support of petitioner’s motion to strike.
Cancellation No. 92044571
7
documents over which they did not have possession, custody,
or control. Thus, petitioner was not deceived or mislead by
the response of the respondents that there were no other
documents that might prove the use of the JONANTHAN LOGAN
trademark other than what respondents produced.
Finally, respondents deposed Mr. Haigney to rebut the
testimony of petitioner’s witness, Michael Reich, regarding
whether Burlington Coat Factory stores sold JONATHAN LOGAN
brand clothing. When Mr. Michael Reich, testified that he
conducted an investigation regarding the sale, or the lack
of sales, of JONATHAN LOGAN clothing at Burlington Coat
Factory stores, petitioner opened the door for respondents
to introduce testimony and evidence that they, in fact, sold
JONATHAN LOGAN clothing to Burlington Coat Factory Warehouse
Corporation.
Under these circumstances, respondents are not estopped
from introducing the testimony of Mr. Haigney and the
documents from Burlington Coat Factory Warehouse Corporation
for whatever probative value they may have. Therefore,
petitioner’s objection to respondents’ Exhibits 6, 7, and 8
on the ground that they were not produced during discovery
is overruled.
Petitioner objected to respondents’ Exhibits 11-13
introduced through the testimony of Harry Adjmi, the
President of One Step Up, Ltd., on the grounds of hearsay,
Cancellation No. 92044571
8
lack of foundation, and that they were not introduced by a
qualified witness. Respondents’ Exhibits 11-13 consist of
the following documents:
1. Respondent’s Exhibit 11 is a package of documents
consisting of the following documents:
A. An invoice from Maklihon Mfg. Corp., a
licensee of Delan Enterprises Incorporated,
to Value City Department Stores, in Columbus,
Ohio, dated August 3, 2005, for unidentified
merchandise;

B. A Value City Department Stores purchase order
dated May 11, 2005; and,

C. An unidentified document that appears to be a
photocopy of a business card displaying the
JONATHAN LOGAN trademark;14

2. Respondents’ Exhibit 12 is a package consisting of
a number of different documents. However, respondents only
identified a Value City Department Store purchase order
dated May 11, 2005. The vendor is identified as “Jonathan
Logan.”15 The other documents in Exhibit 12 were not
identified except for Mr. Adjmi’s testimony that the

14 This document was not clearly identified.

Q. Do you see that Bates stamp document number 90 appears
to be a Jonathan Logan label with the name Steve
Lippert printed beneath it?

A. I see that.

(Adjmi Dep., p. 11).

15 This is not the same as the purchase order in Respondents’
Exhibit 11.
Cancellation No. 92044571
9
documents were received from Delan Enterprises Incorporated;
and,
3. Respondents’ Exhibit 13 is a cover letter dated
August 19, 2005, addressed to Joel Yunis, an attorney at
Katten Muchin Zavis Roseman, from Kenneth Blair, Senior Vice
President of Wells Fargo Century, that transmits “fifteen
(15) 2005 invoices from Broadway Garment, which they say
were for Jonathan Logan goods.” Attached to the August 19,
2005 cover letter are a “BGC, Inc.” sales journal
summarizing the information on the 15 attached invoices.
The attached invoices are from Broadway Garment Company to
Sam’s Club. They are dated in January, February, and March
2005. Neither the JONATHAN LOGAN trademark or trade name
appear on the sales journal or invoices.
Petitioner’s objection to respondents’ Exhibits 11 – 13
is well taken because there is no evidence that Mr. Adjmi
has any personal knowledge regarding the documents and
whether and how they were kept in the regular course of
business by the various entities identified on those
documents. In other words, Mr. Adjmi was merely testifying
about what the documents say on their face. In view of the
foregoing, petitioner’s objection to respondents’ Exhibits
11 – 13 is sustained and Exhibits 11 – 13 have been given no
consideration.
Cancellation No. 92044571
10
Petitioner objected to respondents’ Exhibit 14
introduced through the testimony of Harry Adjmi. The
relevant portion of Exhibit 14 is paragraph No. 4 of the
Rudy Del Vecchio declaration in support of respondents’
motion for summary judgment. Petitioner objected to the
admissibility of Exhibit 14 on the ground that the
statements in the Del Vecchio declaration are hearsay. The
statements in the Rudy Del Vecchio declaration are hearsay
because Mr. Del Vecchio did not make himself available to
testify at trial and the statements were made to prove the
truth of the matter asserted (i.e., that Delan Enterprises
Incorporated sold JONATHAN LOGAN clothing to many retailers,
including Annie Sez, JC Penney, Burlington Coat Factory,
Value City, Steinmart, Symm’s, Bolton’s, Strawberry, and
Ashley Stewart). In view thereof, petitioner’s objection is
sustained and the statements in the Del Vecchio declaration
have been given no consideration.
The Record
By operation of Trademark Rule 2.122, 37 CFR §2.122,
the record includes the pleadings and the registration files
for respondents’ marks. The record also includes the
following testimony and evidence:
A. Petitioner’s Evidence.

Petitioner submitted the testimony deposition of
Michael Reich, petitioner’s founder and Managing Member,
Cancellation No. 92044571
11
with attached exhibits, including a copy of “One Step Up,
Ltd.’s Verified Responses to Petitioner’s First Set of
Interrogatories as Successor-In-Interest By Assignment to
Delan Enterprises, ‘Registrant’.”16
B. Respondents’ Evidence.

1. The testimony deposition of Stacey J. Haigney, in-
house counsel, Assistant Secretary, and Chief Compliance
Officer of Burlington Coat Factory Warehouse Corporation, a
customer of JONATHON LOGAN branded merchandise, with
attached exhibits; and,
2. The testimony deposition of Harry Adjmi, President
of One Step Up, Ltd., with attached exhibits, subject to the
evidentiary objections discussed supra.
Standing
On August 19, 2004, petitioner filed an intent to use
application to register the mark JONATHAN LOGAN for women’s
clothing, in Class 25 (Serial No. 78469921).17 In an Office
Action dated March 24, 2005, the Trademark Office refused to
register petitioner’s mark pursuant to Section 2(d) of the
Trademark Act of 1946, 15 U.S.C. §1052(d), because
petitioner’s mark, when used in connection with women’s
clothing, is likely to cause confusion with respondents’

16 Respondents stipulated to the admissibility of its discovery
responses. Reich Dep., p. 17.
17 Reich Dep., pp. 10 - 11, Exhibit 2.
Cancellation No. 92044571
12
JONATHAN LOGAN mark.18 By proving that its application to
register the mark JONATHAN LOGAN was refused because of
respondents’ registrations is sufficient to establish
petitioner’s standing. Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Abandonment

Under Section 45 of the Trademark Act of 1946, 15
U.S.C. 1127, a mark shall be deemed abandoned inter alia:
(a) When its use has been discontinued
with intent not to resume such use.
Intent not to resume may be inferred
from circumstances. Nonuse for 3
consecutive years shall be prima facie
abandonment. “Use” of a mark means the
bona fide use of such mark made in the
ordinary course of trade, and not made
merely to reserve a right in the mark.

Under the Act, prima facie abandonment is established by
proof of its nonuse for three consecutive years. To
overcome that prima facie case, the respondent must come
forth with evidence that it did not “discontinue” use of the
mark, or if such use had been discontinued, the nonuse of
the mark was without “an intent not to resume” use.
Imperial Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575,
14 USPQ2d 1390, 1393 (Fed. Cir. 1990).

18 Reich Dep., pp. 13 - 15, Exhibit 3.
Cancellation No. 92044571
13
A. Whether petitioner has made a prima facie case of
abandonment by proving that respondents have failed to
use the JONATHAN LOGAN mark for three consecutive
years?

Petitioner asserts that respondents’ registrations
should be cancelled because of the nonuse of the JONATHAN
LOGAN mark for the three consecutive years preceding the
filing of the petition for cancellation on May 31, 2005.19
To prove the nonuse of respondents’ mark petitioner relied
on responses of One Step Up, Ltd., on behalf of respondents,
to Interrogatory Nos. 3 and 4 wherein One Step Up, Ltd.
stated that it did not know the extent of the sales revenues
and advertising expenses associated with JONATHAN LOGAN
brand clothing.
Interrogatory No. 3. Set forth the
advertising expenses incurred by
Registrant related to the marketing,
advertising and promotion of JONATHAN
LOGAN brand women’s clothing in the
United States for each year from 2000 to
the present.

RESPONSE 3. For periods prior to the
Assignment to Registrant, unknown. For
periods subsequent to the Assignment to
Registrant, to be supplied.

Interrogatory No. 4. Set forth the U.S.
sales (or distribution) figures in units
and dollars for JONATHAN LOGAN brand
women’s clothing for each year from 2000
to the present.

RESPONSE 4. For periods prior to the
Assignment to Registrant, unknown. For

19 Petitioner’s Brief, pp. 1 and 6.
Cancellation No. 92044571
14
periods subsequent to the Assignment to
Registrant, to be supplied.20

Petitioner also relied on the testimony of its founder
and Managing Member, Michael Reich, who testified that since
the year 2000, the JONATHAN LOGAN brand was no longer in the
marketplace because he had not seen the product in stores or
in advertising.21 Prior to filing its application,
petitioner had not undertaken any investigation to determine
the availability of the JONATHAN LOGAN mark.22 However,
after filing the petition for cancellation (May 31, 2005),
Mr. Reich visited one or two Annie Sez stores and two or
three Burlington Coat Factory stores to see if any JONATHAN
LOGAN brand clothing was being sold.23 One of the
Burlington Coat Factory stores was in West Chester and the
other(s) were in New Jersey (although Mr. Reich could not
remember whether he visited one or two in New Jersey).24 He
selected these stores because they were close to his
office.25 Even though Burlington Coat Factory has several

20 Reich Dep., Exhibit 4.
21 Reich Dep., pp. 9-10. See also Reich Dep., pp. 11-12 (at the
time petitioner filed its application, Reich “was under the
impression that [the JONATHAN LOGAN mark] was no longer in the
marketplace and there were no sales”).
22 Reich Dep., p. 12 (“I don’t specifically recall what I did
prior to the filing”).
23 Reich Dep., pp. 15 – 17, 19 Mr. Reich testified that
respondents told him that JONATHAN LOGAN branded clothing could
be found at Annie Sez and Burlington Coat factory stores. (Reich
Dep., p. 16).
24 Reich Dep., p. 19. Mr. Reich did not take any notes during his
visit to the stores. (Reich Dep., p. 20).
25 Reich Dep., p. 21.
Cancellation No. 92044571
15
hundred stores,26 Mr. Reich did not make an inquiry at the
corporate level of Burlington Coat Factory to determine
whether that retailer sold JONATHAN LOGAN brand clothing.27
Instead, Mr. Reich relied on an inquiry made to an
unidentified store employee.28
With respect to his visits to the Annie Sez stores, Mr.
Reich could not recall whether he visited one or two
stores.29 Again, Mr. Reich relied on an inquiry made to an
unidentified store employee,30 rather than making an inquiry
at the corporate level of Annie Sez regarding whether that
retailer sold JONATHAN LOGAN brand clothing.31
Mr. Reich did not make any specific inquiry as to
whether the Burlington Coat Factory or Annie Sez stores sold
JONATHAN LOGAN brand clothing between the years 2001 through
2004.32
Mr. Reich’s testimony regarding his purported market
investigation is not sufficiently probative to prove that
there was three consecutive years of nonuse of the JONATHAN
LOGAN mark by respondents. First, petitioner’s decision to
adopt the mark JONATHAN LOGAN was based on Mr. Reich’s
“impression” that the mark was no longer in use. Mr. Reich

26 There are approximately 370 Burlington Coat Factory stores in
43 states. (Haigney Dep., p. 6).
27 Reich Dep., p. 21.
28 Reich Dep., p. 27.
29 Reich Dep., p. 22.
30 Reich Dep., p. 27.
31 Reich Dep., p. 22.
Cancellation No. 92044571
16
has no specific experience in the clothing industry.
Petitioner is a brand management and licensing company.33
Prior to forming petitioner, Mr. Reich manufactured
cosmetics.34 By virtue of the fact that Mr. Reich
manufactured cosmetics under licenses with other companies,
he developed skills and experience negotiating licenses.35
However, Mr. Reich’s experience in manufacturing cosmetics
and negotiating licenses does not form a reasonable basis
for his impression that respondents were no longer using the
JONATHAN LOGAN mark.
Second, Mr. Reich’s purported investigation comprising
visits to one or two Annie Sez stores and two or three
Burlington Coat Factory stores in close proximity to his
office is insufficient considering that Burlington Coat
Factory Warehouse Corporation has approximately 370 stores
in 42 or 43 states. Moreover, Mr. Reich’s testimony that he
spoke to unidentified store employees at the retail units he
visited, rather than checking with corporate level
representatives, highlights the cursory nature of his
investigation.
Finally, Mr. Reich’s testimony is not credible. Mr.
Reich does not remember whether he visited one or two Annie
Sez stores or whether he visited two or three Burlington

32 Reich Dep., pp. 23 – 25.
33 Reich Dep., p. 5.
34 Reich Dep., p. 6.
Cancellation No. 92044571
17
Coat Factory stores. In addition, Mr. Reich conveniently
neglected to take any notes to refresh his memory regarding
his investigatory visits.
In view of the foregoing, our determination of whether
petitioner has made a prima facie case of abandonment by
proving that respondents have not used the JONATHAN LOGAN
mark for women’s clothing for three consecutive rests solely
on respondents’ responses to Interrogatory Nos. 3 and 4. As
indicated above, respondents were unaware of the sales
revenues or advertising expenses prior to the 2006
assignment of the JONATHAN LOGAN mark and registrations
involved in this proceeding. Because respondents were
unaware of the sales or advertising figures prior to the
2006 assignment, petitioner could not introduce into
evidence respondents’ annual sales and advertising records
in connection with the mark. Moreover, there is no
explanation why respondents do not have such information.
Accordingly, we find that petitioner has made a prima facie
case that there has been three consecutive years of nonuse
prior to the 2006 assignment.
B. Whether respondents proved that they did not
discontinue use of the mark JONATHAN LOGAN?

To support their continued use of the JONATHAN LOGAN
trademark, respondents relied on the testimony of Stacy J.
Haigney, in-house counsel for Burlington Coat Factory

35 Reich Dep., p. 7.
Cancellation No. 92044571
18
Warehouse Corporation, regarding the sale of products from
“Jonathan Logan” to Burlington Coat Factory Warehouse
Corporation. Mr. Haigney introduced the following records
into evidence:
1. A newspaper insert advertising the sale of
clothing distributed in March 2002 good through April 6,
2002, that included an advertisement for JONATHAN LOGAN
suit;36
2. A form provided by “Jonathan Logan” to buyers for
notes regarding purchases.37 The date on the form is a
facsimile transmission date of April 1, 2005. On the form,
“Jonathan Logan” is identified as a vendor. Therefore, this
document displayed “Jonathan Logan” used as a trade name,
not as a trademark;
3. A “Jonathan Logan” invoice to Burlington Coat
Factory dated March 9, 2005.38 “Jonathan Logan” is used to
identify the company name. It is not used in connection
with any clothing products. Therefore, as displayed on the
invoice, “Jonathan Logan” is used a trade name, not as a
trademark;
4. A copy of a computer generated purchase order from
“Jonathan Logan,” vendor, to Modecraft Fashions39 dated

36 Haigney Dep., p. 37, Exhibit 2.
37 Haigney Dep., p. 39, Exhibits 3 and 4.
38 Haigney Dep., Exhibit 5.
39 Modecraft Fashions is a dba used by Burlington Coat Factory to
make wholesale purchases. (Haigney Dep., p. 23).
Cancellation No. 92044571
19
March 31, 2005.40 As displayed in the purchase order,
“Jonathan Logan” is used as a trade name, not used as a
trademark; and,
5. A computer printout of a “Vendor Payment History
Report” for “Jonathan Logan” listing invoices dated August,
October, November, and December 2004 and February through
May 2005. In the printout, “Jonathan Logan” is identified
as the vendor. Therefore, “Jonathan Logan” is used as a
trade name, not as a trademark;41
Respondents also relied on the testimony of Harry
Adjmi, President of One Step Up, Ltd., the current owner of
the JONATHAN LOGAN trademark registrations at issue. Mr.
Adjmi introduced respondents’ Exhibit 10 consisting of the
following documents:
1. Copies of the JONATHAN LOGAN trademark assignment
to One Step Up, Ltd. from Delan Enterprises
Incorporated;

2. Two One Step Up purchase orders for the
manufacture of merchandise with JONATHAN LOGAN
labels. The purchase orders are undated.
However, the purchase order identified by Bates
No. 00135 has a delivery date before July 23, 2006
and the purchase order identified by Bates No.
00136 has a delivery dated before September 1,
2006. However, the purchase order is for the
manufacture of clothing outside of the United
States;

3. Four invoices from One Step Up for merchandise
sold to the following companies:

40 Haigney Dep., Exhibit 6.
41 Haigney Dep., Exhibit 7. Haigney Dep. Exhibit 8 appears to be
another version of Exhibit 7 in a different format. Could not
identify Exhibit 8 page 13.
Cancellation No. 92044571
20
A. Conway stores in New York, New York, dated
December 13, 2006;

B. DD’s Discounts in Moreno Valley, California,
dated October 26, 2006;

C. JCPenney in Sunrise, Florida, dated September
28, 2006; and,

D. Rue 21 in Weirton, West Virginia, dated
October 27, 2006.

None of the invoices display the JONATHAN LOGAN
trademark or trade name;

4. A photograph of a JONATHAN LOGAN label in a
sweater; and,

5. A copy of a JONATHAN LOGAN hang tag.

Respondents have only shown use of the JONATHAN LOGAN
trademark as of April 6, 2002 through the Burlington Coat
Factory Warehouse Corporation newspaper insert advertising
the JONATHAN LOGAN suit. None of the other documents
introduced by respondents show JONATHAN LOGAN used as a
trademark.42 As indicated in the discussion describing the
remainder of the documents introduced through the Stacy
Haigney deposition, those documents showed use of “Jonathan
Logan” as a trade name, not as a trademark. In fact, Mr.
Haigney testified that the documents he produced at his
deposition did not necessarily show that his company
purchased JONATHAN LOGAN branded clothing, only that the

42 Even if we had admitted respondents’ Exhibits 11-13,
respondents would not have proven use of the JONATHAN LOGAN
trademark after April 6, 2002 because none of those exhibits
showed use of the JONATHAN LOGAN trademark.
Cancellation No. 92044571
21
documents showed that the clothing came from the Jonathan
Logan company.43
Q. And as a result of your
investigation, as you’ve referred
to it, were you able to ascertain
additional purchasers of the items
bearing the Jonathan Logan mark?

A. Yes. Or at least purchases of
product from the Jonathan Logan
company, the same vendor from whom
we were buying under PO 7035403.44

Moreover, with respect to the probative value of the
Burlington Coat Factory Warehouse Corporation documents
produced by Mr. Haigney, we note that there was no evidence
on behalf of respondents regarding the practice of placing
the JONATHAN LOGAN trademark on every item of clothing sold
by the “Jonathan Logan” company. In other words,
respondents are asking us to improperly infer that any
clothing sold by the “Jonathan Logan” company featured a
label displaying the JONATHAN LOGAN trademark.
The invoices introduced through respondents’ Exhibit 10
through the Harry Adjmi deposition do not show use of
“Jonathan Logan as either a trade name or a trademark.
Accordingly, based on this record, there is no evidence of
any use of the JONATHAN LOGAN trademark after April 6, 2002.
In other words, there is more than three consecutive years
of nonuse.

43 Haigney Dep., p. 11.
44 Id.
Cancellation No. 92044571
22
The only evidence that might be construed as
respondents’ intent to resume use is the fact that One Step
Up, Ltd. acquired the JONATHAN LOGAN trademark as of April
6, 2006, presumably to revive the brand. However, there is
no testimony or evidence from any officer or employee of
Delan Enterprises Incorporated, the predecessor of One Step
Up, Ltd., regarding the use of the JONATHAN LOGAN brand from
April 6, 2002 through April 6, 2006, including what plans,
if any, Delan Enterprises Incorporated had to market
JONATHAN LOGAN brand clothing. It is also noteworthy that
respondents were unable to produce any evidence of
advertising or sales for JONATHAN LOGAN brand clothing
subsequent to April 6, 2002.
Respondents’ contention that it has shown continued use
of the JONATHAN LOGAN trademark subsequent to April 6, 2002
is based on the false premise that the Haigney and Adjmi
documents displaying use of the “Jonathan Logan” trade name
is analogous to trademark use. As mentioned above, the
problem with respondents’ position is that there is no
testimony or supporting evidence that every item of clothing
sold by the “Jonathan Logan” company featured the JONATHAN
LOGAN trademark. Therefore, we have no basis to infer that
clothing sold by the “Jonathan Logan” company necessarily
was branded with the JONATHAN LOGAN trademark.
Cancellation No. 92044571
23
Based on this record, respondents have not introduced
sufficient evidence that they have used the JONATHAN LOGAN
trademark between April 6, 2002 and April 6, 2006 to rebut
petitioner’s prima facie case of abandonment.
Decision: The petition for cancellation on the ground
of abandonment is granted.