Abronette McDaniel a/k/a Bonnie McDanielv.Light Shine Media Group, LLC

Trademark Trial and Appeal Board

Jun 19, 2019

92061045 (T.T.A.B. Jun. 19, 2019)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: May 16, 2019 Mailed: June 19, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Abronette McDaniel a/k/a Bonnie McDaniel
v.
Light Shine Media Group, LLC
_____

Cancellation No. 92061045
_____

David E. Moore of Brundidge & Stanger PC
for Abronette McDaniel a/k/a Bonnie McDaniel.

J. Michael Monahan II of Astrolabe LLC
for Light Shine Media Group, LLC
_____

Before Adlin, Goodman and Hudis, Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Light Shine Media Group, LLC (“Respondent”) owns a Principal Register
registration for the mark GOODLIVING, in standard characters, for “general feature
magazines” in International Class 16.1

1 Registration No. 4316722, issued on April 9, 2013, under Trademark Act Section 1(a), 15
U.S.C. § 1051(a), alleging September 21, 2010 as the date of first use of the mark and first
use of the mark in commerce. The underlying application for this registration was filed on
August 10, 2012.
Cancellation No. 92061045

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In her Petition for Cancellation,2 Abronette McDaniel a/k/a Bonnie McDaniel
(“Petitioner”) seeks cancellation of Respondent’s GOODLIVING registration under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the basis of likelihood of
confusion with her common law mark GOOD LIVING for general feature magazines.
In its Answer,3 Applicant denies the salient allegations in the Petition for
Cancellation.
I. The Evidentiary Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
15 C.F.R. § 2.122(b), the file of Respondent’s involved registration. In addition,
Petitioner introduced the following evidence:
A. Declaration of Abronette McDaniel a/k/a Bonnie McDaniel (“McDaniel
Decl.”),4 with the following attached exhibits:
1. Exhibit A: Harriet Daniels, Bonnie McDaniel finds many outlets
to promote good living, OCALA STAR-BANNER (Mar. 3, 1997)
http://news.google.com/newspapers?nid=1356&dat=19970303&i
d=hxgyAAAAIBAJ&sjid=0w4EAAAAIBAJ&pg=4366,2728567
[Retrieval date: Jul. 14, 2014].
2. Exhibit B: THE ART OF GOOD LIVING MAGAZINE (Home Page)
http:/lweb.archive.org/web/20001206214100/http://www.theartof
goodliving.com/HcmePage.html (Dec. 6, 2000) [Retrieval date:
Oct. 3, 2014].

2 1 TTABVUE. References to the pleadings, the evidence of record and the parties’ briefs refer
to the Board’s TTABVUE docket system. Coming before the designation TTABVUE is the
docket entry number; and coming after this designation are the paragraph or page references,
if applicable.
3 4 TTABVUE.
4 29 TTABVUE.
Cancellation No. 92061045

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3. Exhibit C: INTERNET ARCHIVE WAYBACK MACHINE,
http://www.theartofgoodliving.com (Saved 52 times between May
11, 2000 and July 18, 2013)
http://web.archive.org/web/20000201000000*/http://www.thearto
fgoodliving.com [Retrieval date: Oct. 3, 2014].
4. Exhibit D: INTERNET ARCHIVE WAYBACK MACHINE, About Bonnie
McDaniel
http:/lweb.archive.org/web/20010216230721/http://www.theartof
goodliving.com/AboutBonnie.html (Feb. 16, 2001) [Retrieval date:
Oct. 3, 2014].
5. Exhibit E: EVENTBRITE, A Day of Good Living at Historic Swann
House in DuPont Circle (online event invitation)
http://www.eventbrite.com/e/a-day-of-good-living-at-historic-
swann-house-in-dupont-circl... (Mar. 24, 2012) [Retrieval date:
Oct. 3, 2014].
6. Exhibit F: Copy of Application Serial No. 86419331 for the mark
GOOD LIVING, filed Oct. 9, 2014, claiming a first date of use and
first use in commerce of April 1999 (Applicant: Abronette
McDaniel a/k/a Bonnie McDaniel), with the following specimens
attached:
a) Duplicate copy of Ex. E above.
b) RECIPES FOR GOOD LIVING, Bonnie McDaniel (Home Page)
http://www.bonniemcclanielgoodliving.com/
[Retrieval date: Oct. 3, 2014].
B. Declaration of Ivy Deshield (“Deshield Decl.”).5
C. Declaration of Renita Gabriel (“Gabriel Decl.”).6
D. Declaration of Donavan Beckford (“Beckford Decl.”).7
Respondent did not assert any objections to the admissibility of Petitioner’s
evidence, whether by motion or separate appendix to its brief. However, Respondent’s

5 30 TTABVUE.
6 31 TTABVUE.
7 32 TTABVUE.
Cancellation No. 92061045

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brief critiques Petitioner’s Declarations and the attached exhibits. Respondent did
not take testimony or file any other evidence at trial.
Both parties filed a brief, and Petitioner filed a reply brief. For the reasons
discussed herein, we deny the petition to cancel.
II. Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co. Inc., 753 F.3d 1270,
111 USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc.,
94 USPQ2d 1942, 1945 (TTAB 2010). “The purpose of the standing requirement is to
prevent litigation where there is no real controversy between the parties, where a
plaintiff, petitioner or opposer, is no more than an intermeddler.” Lipton Indus., Inc.
v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
To demonstrate standing, the complaining party must satisfy two requirements:
(1) a “real interest” (defined as “a legitimate personal interest”) in the proceeding;
and (2) a “reasonable basis” for believing that it would suffer damage (that is, “a
reasonable basis in fact”) if the mark remains registered. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012).
This standing requirement is applied consistently with respect to opposers in
opposition proceedings and petitioners in cancellation proceedings. Ritchie v.
Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 n. 2 (Fed. Cir. 1999).
Cancellation No. 92061045

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Here, Petitioner alleges that on October 9, 2014 she filed an application to register
the mark GOOD LIVING8 for:
Providing on-line non-downloadable general feature magazines.;
Providing educational and entertainment services, namely, conducting
seminars, radio and television appearances, features, segments and
programs in the field of lifestyle improvement and maintenance,
broadcast over television, cable, satellite and a global computer network;
Entertainment services, namely, personal appearances by a celebrity in
the field of lifestyle improvement and maintenance in International
Class 41
and that Respondent’s GOODLIVING registration was cited as a bar to the
registration of Petitioner’s mark on likelihood of confusion grounds.9 This establishes
Petitioner’s standing to maintain this cancellation proceeding; in other words, a real
interest in the proceeding and reasonable basis for believing that she will continue to
suffer damage if Respondent’s mark remains on the trademark register. Empresa
Cubana, 111 USPQ2d at 1062.
III. Priority
Because Petitioner has not made of record any federal registrations for her
asserted GOOD LIVING mark, she is not entitled to rely on the presumptions of
validity or ownership attendant thereto. Trademark Act Section 7(b), 15 U.S.C.
§ 1057(b). Even if Petitioner did own, assert and make of record a federal registration
for the GOOD LIVING mark, she would have to plead and prove priority in any event.
Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1474

8 Application Serial No. 86419331, filed October 9, 2014, claiming a date of first use and first
use in commerce of April 1999.
9 1 TTABVUE 4, ¶ 9.
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(TTAB 2014) (“In a cancellation proceeding such as this one where both parties own
registrations, priority is in issue.”); Calypso Techn., Inc. v. Calypso Capital Mgt., LP,
100 USPQ2d 1213, 1219 (TTAB 2011) (“With respect to the cancellation proceeding,
because both parties have registrations, it is plaintiff’s burden to demonstrate that
its use of its … mark is prior to defendant’s use of its registered marks.”).
Thus, Petitioner must rely on common law use of her pleaded mark GOOD
LIVING as a trademark or use analogous to trademark use10 to prove priority. The
mark must be distinctive, inherently or otherwise, and Petitioner must show priority
of use. See Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40,
44-45 (CCPA 1981).11 Petitioner must prove priority by competent evidence. Research
in Motion Ltd. v. Defining Presence Mktg. Grp., Inc., 102 USPQ2d 1187, 1195 n. 23
(TTAB 2012).
Moreover, Petitioner cannot prevail here unless her claimed mark GOOD LIVING
is, or has become, associated with her goods prior to the earliest date on which
Respondent can rely, namely, the underlying application filing date of its involved

10 Petitioner did not plead “use analogous to trademark use” in her Petition for Cancellation.
11 In this proceeding, Respondent did not challenge the distinctiveness of Petitioner’s GOOD
LIVING mark. Therefore, we need not concern ourselves with this issue. See, e.g., Giersch v.
Scripps Networks, Inc., 90 USPQ2d 1020, 1023 (“Respondent has not raised an issue as to
the distinctiveness of petitioner's mark or otherwise put petitioner on notice of this defense,
and therefore we find that the mark is distinctive.”) (citing Wet Seal Inc v. FD Mgmt., Inc.,
82 USPQ2d 1629, 1634 (TTAB 2007) (absent argument or evidence from applicant, opposer's
mark deemed distinctive)); Chicago Corp. v. N. Am. Chicago Corp., 20 USPQ2d 1715, 1717
n. 5 (TTAB 1991) (rejecting applicant’s argument that opposer failed to prove that its mark
was distinctive where applicant failed to plead the issue or introduce evidence of non-
distinctiveness).
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registration (August 10, 2012).12 Towers v. Advent Software Inc., 913 F.2d 942, 16
USPQ2d 1039, 1041 (Fed. Cir. 1990); Embarcadero Techn., Inc. v. RStudio, Inc., 105
USPQ2d 1825, 1834 (TTAB 2013). Additionally, the Board will not consider any
common law marks asserted by Petitioner that were not pled in support of her
likelihood of confusion claim. Odom’s Tennessee Pride Sausage, Inc. v. FF Acquisition,
LLC, 600 F.3d 1343, 93 USPQ2d 2030, 2031-32 (Fed. Cir. 2010).
We shall now consider Petitioner’s priority in light of the evidence she made of
record.
A. Petitioner’s Declaration and Exhibits
Petitioner, in her Declaration, claims that since March 1997 she has expended
substantial resources to advertise and promote goods and services under the GOOD
LIVING mark. Petitioner asserts that these goods and services include weekly radio
broadcasts, web sites and on-line chat rooms. (McDaniel Decl., ¶ 5). Respondent
contends that Petitioner provided no documents or other evidence regarding her
advertising and promotion, or specifics of her weekly radio broadcasts, web sites and
on-line chat rooms (at least during this time period).13 We agree. Moreover, these
uses are not for “general feature magazines” as pleaded in the Petition for
Cancellation.

12 Where, as here, Respondent did not present any evidence regarding the earliest common
law use, or any use, of its GOODLIVING mark, the earliest date on which it can rely for
priority purposes, its constructive date of first use, is the filing date of the application that
matured into Respondent’s GOODLIVING registration. Trademark Act Section 7(c), 15
U.S.C. § 1057(c); Media Online Inc. v. El Clasificado, Inc., 88 USPQ2d 1285, 1288 (TTAB
2008).
13 34 TTABVUE 7.
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Petitioner refers us to a March 3, 1997 article published in the OCALA STAR-
BANNER describing her promotion of goods and services under the GOOD LIVING
mark. (McDaniel Decl., ¶ 6, Ex. A). The article reports on an online chat room
established by Petitioner, and a weekly radio broadcast, both called “The Art of Good
Living,” which provided helpful hints about living well – an elegant lifestyle within a
loving and nurturing environment. Respondent observes that this article comprises
uncorroborated hearsay, Fed. R. Evid. 801, 802.14 Petitioner asserts that the article
is not hearsay and can be considered as an ancient document pursuant to Fed. R.
Evid. 803(16).15 We find the article to fall within the exception, but that it has little
probative value because the article does not show her use of the mark GOOD LIVING
standing alone (without other words), or use of the mark for general feature
magazines.
Next, Petitioner refers us to her having “at least one website, on-line magazine
and/or print magazine that promotes goods and services under [her] … GOOD
LIVING mark and/or [her] … GOOD LIVING family of marks” since December 2000
(McDaniel Decl., ¶ 7).16 In support, Petitioner points us to year-2000 and 2001
webpage screen captures from the Internet Archive’s Wayback Machine bearing the
heading “The Art of Good Living Magazine,” and Internet Archive statistics showing

14 34 TTABVUE 9.
15 35 TTABVUE 10.
16 Petitioner did not plead or prove that she owns a “family” of marks. In re LC Trademarks,
Inc., 121 USPQ2d 1197, 1204 (TTAB 2016) (quoting Wise F & I, LLC v. Allstate Ins. Co., 120
USPQ2d 1103, 1109 (TTAB 2016)) (setting forth requirements for establishing ownership of
a family of marks).
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that pages from this website were captured 52 times between May 2000 and July
2013. (McDaniel Decl., ¶¶ 7-10, Exs. B-D).
Respondent criticizes this evidence chiefly for lack of authentication. In fact, the
captured web pages procured from the Wayback Machine are incomplete and are
missing information. Once more, the captured web pages do not show Petitioner’s use
of the mark GOOD LIVING standing alone. Moreover, Petitioner’s declaration
testimony concerning this website evidence (McDaniel Decl., ¶¶ 7-10) is vague, not
sufficiently detailed, and does not provide specifics regarding the content of her
website. Petitioner also does not tell us that the web pages captured by the Wayback
Machine are true and accurate representations of what they purport to show.
Therefore, Petitioner’s testimony and related exhibits are not probative.
Petitioner then discusses an event she held in Washington, D.C. in March 2012
called “A Day of Good Living” under the business name “Good Living Enterprises.”
The event was advertised as a lifestyle skills building and networking event.
(McDaniel Decl., ¶ 11, Ex. E). Respondent criticizes this evidence because the
relationship between Petitioner and the event sponsor, if any, is unexplained.17 This
critique is without merit, because Petitioner testified that she “held” the event, and
she is listed in the exhibit as the Director of Good Living Enterprises. Again, however,
the promoted event does not show Petitioner’s use of the mark GOOD LIVING
standing alone, although it does mention Good Living Magazine in connection with
Petitioner’s role as director of Good Living Enterprises.

17 34 TTABVUE 7-8.
Cancellation No. 92061045

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Without any documentary support or further informational details, Petitioner
claims to have used the GOOD LIVING mark in connection with general feature
magazines since September 2010. (McDaniel Decl., ¶¶ 12-13). There simply is no
evidence of record to support this assertion. Overall, Petitioner’s Declaration is
unclear regarding the use or uses of the GOOD LIVING mark, by itself without any
surrounding words, in connection with general feature magazines as asserted in the
Petition for Cancellation. Petitioner does not discuss her use of the GOOD LIVING
mark in connection with print magazines at all. The one piece of purported evidence
Petitioner provides regarding her use of GOOD LIVING in connection with an online
magazine is Exhibit B to her Declaration, which as indicated does not show use of the
mark standing alone.
Finally, Exhibit F to Petitioner’s Declaration (Applicant’s online application to
register the GOOD LIVING mark) includes a web page capture bearing the heading
“Recipes for Good Living Bonnie McDaniel,” described as a “food and lifestyle
magazine for the modern family.”18 Petitioner’s Declaration (McDaniel Decl., ¶ 14)
says nothing about the exhibit (the Application) or the particular web page except

18 As noted in our listing of exhibits to the McDaniel Declaration, this webpage includes the
URL and a 2014 access date.
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that the documentation was filed with the USPTO.19 This is not probative evidence
of Petitioner’s use of the GOOD LIVING mark in commerce except for what the
document says on its face. See TRADEMARK BOARD MANUAL OF PROCEDURE § 704.04
(June 2018 Ed.) (“Self-authenticating exhibits (e.g., printed publications, Internet
printouts with the URL and date) attached to affidavits or declarations in
applications or registrations may have evidentiary value for what they show on their
face.”). But see Lasek & Miller Associates v. Rubin, 201 USPQ 831, 833 n.3 (TTAB
1978) (petitioner’s application file is proof only of filing, not of any facts alleged in the
application), and again is not evidence of Petitioner’s use of the GOOD LIVING mark
standing alone.
B. The Deshield, Gabriel and Beckford Declarations
The Deshield, Gabriel and Beckford Declarations (with a few exceptions, nearly
identical in form and substance) all state that the facts provided are within each
declarant’s personal knowledge. However, the information stated in most of the
Declaration paragraphs is provided “upon information and belief.” This calls into
question how much personal knowledge of Petitioner’s use of the GOOD LIVING

19 Had Petitioner’s GOOD LIVING Application been the subject of this proceeding, all parts
of her application, including her submitted specimens of use, would have been automatically
of record without any further action by the parties. Trademark Rule 2.122(b), 37 C.F.R. §
2.122(b). See also Lens.com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376, 103 USPQ2d 1672,
1677 (citing Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92
USPQ2d 1626, 1629 (Fed. Cir. 2009). The subject of this proceeding, however, is not
Petitioner’s GOOD LIVING Application but rather Respondent’s GOODLIVING
Registration. Thus, the materials in Petitioner’s GOOD LIVING Application file history are
not proof of anything, even though these materials were submitted, unless Petitioner testifies
(by declaration or deposition) or provides us with other reliable evidence about them; which
she did not do.
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mark each declarant has. Ava Ruha Corporation d/b/a Mother’s Mkt. & Kitchen v.
Mother’s Nutritional Ctr., Inc., 113 USPQ2d 1575, 1578 (TTAB 2015) (“To the extent
some portions of [a] … declaration may not be based on personal knowledge, the
proper remedy is to simply disregard those portions.”).
All three declarants claim that Petitioner has used the GOOD LIVING mark “for
various goods and services,” and that Petitioner “has expended substantial resources
to advertise and promote [these] goods and services” since either 2006 or 2010
(depending on how long each declarant has known Petitioner). (Deshield, Gabriel and
Beckford Decls., ¶¶ 3-5). All three declarants opine on a likelihood of confusion
between Petitioner’s mark and Respondent’s mark and their respective products.
(Beckford and Gabriel Decls., ¶¶ 8-10; Deshield Decl., ¶ 10-12). Respondent criticizes
the formulaic and essentially identical wording of these declarations, as well as their
lack of detail regarding Petitioner’s uses of the mark.20 We agree.
In addition, although Ms. Deshield testifies to her experiencing actual confusion
between Petitioner’s and Respondent’s marks and products, she does not provide any
detail as to when or where this confusion occurred, or the circumstances of the
confusion; and thus her testimony is not probative. (Deshield Decl., ¶ 13-14).
C. The Totality of Petitioner’s Evidence.
Our primary reviewing court, the Federal Circuit Court of Appeals, requires us to
“look at the evidence as a whole, as if each piece of evidence were part of a puzzle

20 34 TTABVUE 3-5, citing Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1507
(TTAB 2017) (Declarations “all essentially identical in form and … clearly not composed
individually ... are less persuasive than statements expressed in the declarants’ own words.”).
Cancellation No. 92061045

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which, when fitted together, establishes prior use.” West Fla. Seafood, Inc. v. Jet Rest.,
Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994). Having done so here, we
are not persuaded that Petitioner established common law rights in the GOOD
LIVING mark, standing alone, prior to the critical date of August 10, 2012 (when
Respondent filed the underlying application to register its GOODLIVING mark).
Petitioner’s alleged mark is simply GOOD LIVING, which is different than the
phrases “The Art of Good Living,” “A Day of Good Living” or “Recipes for Good Living”
as shown by her submissions.
Petitioner did not seek to amend her pleading to substitute or include a claim of
likelihood of confusion based on the marks she claims to have actually used. Further,
we cannot find, without more, that the pleadings have been amended by consent to
include Petitioner’s marks as used (albeit, sporadically), since Respondent did not
participate in the trial. See P.A.B. Produits et Appareils de Beaute v. Satinine Societa
in Nome Collettivo di S.A. e.M. Usellini, 570 F.2d 328, 196 USPQ 801, 804 (CCPA
1978) (finding respondent was not given “fair notice” of petitioner’s arguments not
included in petition for cancellation).
As a backstop to her claim of likelihood of confusion with her alleged common law
GOOD LIVING mark, in her brief Petitioner, in the alternative, asserts rights in a
so-called “family” of “… GOOD LIVING …” marks.21 As indicated, however,
Petitioner did not plead a “family of marks” theory, and we therefore do not consider
it. Wise F&I, LLC v. Allstate Ins. Co., 120 USPQ2d 1103, 1107 (TTAB 2016);

21 33 TTABVUE 6, 9, 15.
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Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana, Inc., 98 USPQ2d
1921, 1927 (TTAB 2011).
IV. Conclusion
Because Petitioner did not establish common law rights in her asserted GOOD
LIVING mark in connection with general feature magazines prior to the earliest date
on which Respondent can rely, we need not consider her likelihood of confusion claim
under the factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973).
Decision: the Petition for Cancellation is denied.