Ate My Heart, Inc.v.GA GA Jeans Limited

Trademark Trial and Appeal Board

Mar 10, 2015

No. 91205110 (T.T.A.B. Mar. 10, 2015)

Mailed: March 10, 2015

Opposition No. 91205110
Ate My Heart, Inc.
v.
GA GA Jeans Limited

Before Zervas, Hightower and Goodman, Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:

Ga Ga Jeans Limited (hereinafter “Applicant”) seeks to register the mark
GAGA JEANS for “jeans” in International Class 25.1
Ate My Heart Inc. (hereinafter “Opposer”) opposes registration of
Applicant’s mark on the ground of likelihood of confusion with its previously
used and registered LADY GAGA marks for a variety of goods and services
including musical sound recordings, clothing, and live musical performances.
Applicant, in its answer, denied the salient allegations in the notice of
opposition and asserted affirmative defenses.
This case now comes up on Opposer’s motion, filed September 19, 2014,
for summary judgment on the likelihood of confusion ground, and Opposer’s
request, filed November 13, 2014, in connection with its reply, to exclude the

1 Application Serial No. 85456166 filed under Section 1(b); “jeans” disclaimed.

UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500This Opinion is Not a
Precedent of the TTAB
Opposition No. 91205110

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declaration of Rhonda Harper and any raw survey data submitted with
Applicant’s response.
Turning first to the motion to exclude, the motion is granted as conceded.
Trademark Rule 2.127(a). Therefore, we have not considered the declaration
of Rhonda Harper and raw data (exhibits 1 and 2) in Applicant’s response.
We now turn to the motion for summary judgment.
A party is entitled to summary judgment when it has demonstrated that
there is no genuine dispute as to any material fact and that it is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing a motion for
summary judgment, the evidentiary record and all reasonable inferences to
be drawn from the undisputed facts must be viewed in the light most
favorable to the nonmoving party. Olde Tyme Foods Inc. v. Roundy's Inc., 961
F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992). The Board may not resolve
issues of material fact; it may only ascertain whether such issues are present.
See Lloyd's Food Products Inc. v. Eli's Inc., 987 F.2d 766, 25 USPQ2d 2027
(Fed. Cir. 1993).
Standing
We first determine Opposer’s standing to bring this opposition proceeding.
Standing is a threshold issue that must be proven by a plaintiff in every
inter partes case. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,
1025-26 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982).
Opposition No. 91205110

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Opposer did not make its pleaded Registration Nos. 3695129, 3695038 and
3960468 of record with its notice of opposition pursuant to Trademark Rule
2.122(d)(1). However, with its summary judgment motion, Opposer attached
the declaration of Bobby Campbell (“Campbell declaration”), manager of
Mermaid Music Management, Inc., co-owned by Stefani Germanotta p/k/a
Lady Gaga. Mr. Campbell acts as a manager for Lady Gaga and handles all
legal affairs relating to Opposer Ate My Heart, Inc. Mr. Campbell attests
that Opposer owns Registration Nos. 3695129 and 3960468 and includes as
an exhibit photocopies of the original registration certificates as well as
TSDR printouts showing status and title for these registrations.2 Opposer’s
standing to bring this opposition proceeding is undisputed and is established
by the Campbell declaration and accompanying exhibits. See, e.g., Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1408 (TTAB 2010)
(pleaded registration made of record establishes standing).
Accordingly, summary judgment is granted in favor of Opposer with
respect to Opposer’s standing.3
Likelihood of Confusion

2 Mr. Campbell also attests to ownership of other pleaded and unpleaded
registrations and applications for Lady Gaga, Gaga, Haus of Gaga, Eau De Gaga and
Lady Gaga Fame, and has included as exhibits registration certificates and/or TSDR
printouts for those applications or registrations.

3 Under the circumstances, there is no reason for the parties to submit further
evidence or argument on the issue of standing at trial. However, if Opposer’s
pleaded registrations are cancelled, transferred, or expire prior to final decision,
Applicant may raise that issue by motion.

Opposition No. 91205110

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Based on our careful review of the evidence and arguments, and drawing
all inferences in favor of the non-movant, we find that Opposer has not
demonstrated an absence of genuine disputes of material fact with respect to
the likelihood of confusion ground. At a minimum, genuine disputes of
material fact remain with respect to the similarity or dissimilarities of the
parties’ marks, the relatedness of the parties’ goods, and the fame of
Opposer’s marks.4 In view thereof, the motion for summary judgment is
denied on the likelihood of confusion ground.5
Proceedings are resumed.
Dates are reset as follows:
Plaintiff's Pretrial Disclosures Due 3/19/2015
Plaintiff's 30-day Trial Period Ends 5/3/2015
Defendant's Pretrial Disclosures Due 5/18/2015
Defendant's 30-day Trial Period Ends 7/2/2015
Plaintiff's Rebuttal Disclosures Due 7/17/2015
Plaintiff's 15-day Rebuttal Period Ends 8/16/2015

In each instance, a copy of the transcript of testimony, together with
copies of documentary exhibits, must be served on the adverse party within
thirty days after completion of the taking of testimony. Trademark Rule
2.l25.

4 The fact that we identify only certain material facts that are genuinely in dispute
should not be construed as a finding that these are necessarily the only issues that
remain for trial.
5 The parties should note that evidence submitted in support of or in opposition to a
motion for summary judgment is of record only for consideration of that motion. Any
such evidence to be considered at final hearing must be properly introduced in
evidence during the appropriate trial period. See, e.g., Levi Strauss & Co. v. R.
Joseph Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993).

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Briefs shall be filed in accordance with Trademark Rules 2.128(a) and (b).
An oral hearing will be set only upon request filed as provided by Trademark
Rule 2.l29.