24 Mill Corp.v.Bakery HNYDownload PDFTrademark Trial and Appeal BoardJul 9, 201991236490 (T.T.A.B. Jul. 9, 2019) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: July 9, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ 24 Mill Corp. v. Bakery HNY _____ Opposition No. 91236490 _____ Albert L. Schmeiser of Schmeiser Olsen & Watts LLP, for 24 Mill Corp. Michael D. Stewart, Esq., for Bakery HNY. _____ Before Taylor, Greenbaum and Coggins, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: Bakery HNY (“Applicant”) seeks registration on the Principal Register of the mark BAKERY HNY in stylized form displayed as for “Blazers; Bottoms; Crew necks; Footwear; Gloves; Hats; Headwear; Hooded sweatshirts; Jeans; Opposition No. 91236490 - 2 - Pants; Tops; Underwear” in International Class 25.1 24 Mill Corp. (“Opposer”) opposes registration of Applicant’s mark on the grounds of fraud based on nonuse of the mark on “footwear,” and likelihood of confusion with Opposer’s mark HNY for online and retail store services for footwear, use of which Opposer alleges began prior to the filing date of the opposed application.2 Applicant, in its answer, denied the salient allegations of the notice of opposition.3 I. Record Neither party submitted testimony or evidence during its assigned trial period. See Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a) (“No testimony shall be taken or evidence presented except during the times assigned….”). The record therefore consists only of the pleadings and, by operation of Trademark Rule 2.122(b), 37 C.F.R. §2.122(b), the file of the opposed application. Opposer attached two exhibits to its Notice of Opposition but, subject to certain exceptions inapplicable here, exhibits attached to pleadings are not in evidence. Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c) (exhibits to pleadings are not in evidence and instead “must be identified and introduced in evidence as an exhibit during the period for the taking of testimony”); see also TRADEMARK TRIAL AND APPEAL 1 Application Serial No. 86728313 was filed on August 18, 2015, based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as January 1, 2015. Color is not claimed as a feature of the mark. 2 In light of our disposition of this proceeding, we do not address the pleading deficiencies. 3 Applicant asserted various “affirmative defenses” in its answer; however, these are deemed waived because Applicant did not pursue them at trial. See Alcatraz Media Inc. v. Chesapeake Marine Tours Inc. dba Watermark Cruises, 107 USPQ2d 1750, 1753 n.6 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014). Opposition No. 91236490 - 3 - BOARD MANUAL OF PROCEDURE (TBMP) § 317 (June 2019). Similarly, the four exhibits attached to Opposer’s Brief were not properly introduced into evidence and therefore cannot be considered. Trademark Rule 2.123(k), 37 C.F.R. § 2.123(k) (“Evidence not obtained and filed in compliance with these sections will not be considered.”); see also Angelica Corp. v. Collins & Aikman Corp., 192 USPQ 387, 391 n.10 (TTAB 1976) (evidence submitted for first time with brief not considered). Opposer filed a trial brief, but Applicant did not. II. Standing Not Proven Standing is a threshold issue that a plaintiff must prove in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). “The facts regarding standing … are part of [a plaintiff’s] case and must be affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely because of the allegations in its petition.” Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Our primary reviewing court has enunciated a liberal threshold for determining standing: a plaintiff must demonstrate that it has a “real interest” in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage.” Empresa Cubana, 111 USPQ2d at 1062 (quotation omitted). A “real interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir. 1999). As plaintiff in this proceeding, Opposer must prove both its standing and its claims by a preponderance of the evidence. See Bose Corp. v. QSC Audio Prods. Inc., Opposition No. 91236490 - 4 - 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002) (“The burden of proof rests with the opposer … to produce sufficient evidence to support the ultimate conclusion of [priority of use] and likelihood of confusion.”); Sanyo Watch Co. v. Sanyo Elec. Co., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir. 1982) (“As the opposer in this proceeding, appellant bears the burden of proof which encompasses not only the ultimate burden of persuasion, but also the burden of going forward with sufficient proof of the material allegations of the Notice of Opposition, which, if not countered, negates appellee’s right to a registration.”). Although Opposer did not submit evidence or testimony, we must look to the pleadings to determine if Applicant made any admissions in its answer that would mitigate Opposer’s failure to prove its case. TBMP § 704.06(a) (“statements in pleadings may have evidentiary value as admissions against interest by the party that made them”). Opposer makes several allegations in the Notice of Opposition about its purported adoption and use of the mark HNY in connection with “online and retail store services for footwear.” Notice of Opposition ¶¶ 1-3, 1 TTABVUE 4. Statements made in a notice of opposition are, unless admitted, merely allegations, subject to proof at trial. Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010). Here, Applicant did not admit any allegations of Opposer’s adoption or use of the pleaded mark and, as noted, Opposer submitted no trial evidence. Boyds Collection Ltd. v. Herrington & Co., 65 USPQ2d 2017, 2020 n.10 (TTAB 2003) (“Although petitioner pleaded ownership of common-law marks in the petition to cancel, such matters were denied in respondent’s answer, and are therefore subject Opposition No. 91236490 - 5 - to proof. Without such evidence, petitioner can prove neither its standing nor its substantive claims.”). In its brief, Opposer repeats the unsupported allegations about its purported adoption and use of the pleaded mark. However, as the Federal Circuit recently reiterated, “[a]ttorney argument is no substitute for evidence.” Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)); see also In re Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief cannot take the place of evidence.”). In sum, there is no record evidence that Opposer has a “real interest,” i.e., a “direct and personal stake” in the outcome of the proceeding or that Opposer is more than a “mere intermeddler.” Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 50 USPQ2d at 1026. See generally TBMP § 309.03(b). Accordingly, we find Opposer has failed to prove its standing to oppose the registration of Applicant’s mark. Opposer’s failure to prove standing is a sufficient basis to dismiss the proceeding, and we dismiss Opposer’s claims on that basis alone.4 See Lumiere Prods., Inc. v. Int’l Tel. & Tel. Corp., 227 USPQ 892, 893 (TTAB 1985). Decision: The opposition is dismissed. 4 Accordingly, we need not and do not discuss or otherwise reach the merits of Opposer’s purportedly asserted claims of fraud and likelihood of confusion. Copy with citationCopy as parenthetical citation