Auburn Farms, Inc.v.McKee Foods Corp.

Trademark Trial and Appeal Board

Mar 30, 1999

No. 92022060 (T.T.A.B. Mar. 30, 1999)

Hearing: Paper No. 48
January 16, 1998 JQ
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MARCH 30, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Auburn Farms, Inc.
v.
McKee Foods Corporation
_____
Cancellation No. 22,060
_____
Don B. Finkelstein for Auburn Farms, Inc.
Donald A. Kaul of Dorsey & Whitney for McKee Foods
Corporation.
_____
Before Sams, Seeherman and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
Auburn Foods, Inc. (hereinafter “Auburn”) has
petitioned to cancel the registration owned by McKee Foods
Corporation (hereinafter “McKee”) for the mark JAMMERS for
“filled cakes.”1

1 Registration No. 1,020,658, issued September 16, 1975; renewed.
The identification of goods originally read “filled cakes,
cookies and fruit pies.” When the registration was renewed, the
renewal affidavit applied to only “filled cakes.” The
registration was changed accordingly.
Cancellation No. 22,060
2
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As grounds for cancellation, Auburn asserts that
McKee’s registered mark has been abandoned due to nonuse
with intent not to resume use. More specifically, Auburn
asserts that there has been no use, by McKee or any
predecessor-in-interest, of the mark JAMMERS in connection
with the goods listed in McKee’s registration for more than
two years preceding the filing of the petition.2 Auburn
further asserts that prior to an assignment of the involved
registration from Campbell Taggart, Inc. (hereinafter
“Campbell”) to McKee, Campbell had not used the registered
mark for more than two years, thereby abandoning the mark.
Auburn alleges, therefore, that the assignment of the
registration to McKee was a naked assignment which
invalidates the involved registration. Auburn also makes
the following pertinent allegations: that Auburn has used
the mark JAMMERS since at least as early as April 8, 1992 in
connection with fruit juice sweetened cookies; that its
application to register this mark was refused registration
under Section 2(d) on the basis of McKee’s prior
registration; that Auburn owns a registration for the mark

2 Section 45 of the Trademark Act was amended, effective January
1, 1996, to extend the minimum period of nonuse to three
consecutive years to establish a prima facie case. However,
because the petition for cancellation was filed, and the trial
began, prior to that date, the issue of abandonment has been
decided on the basis of the pre-1996 statutory provision. See:
Rivard v. Linville, 133 F.3d 1446, 45 USPQ2d 1374 (Fed. Cir.
1998), aff’g, 41 USPQ2d 1731 (TTAB 1996).
Cancellation No. 22,060
3
˝
TOAST’N JAMMERS for fruit juice sweetened pastries;3 and
that McKee has claimed that Auburn’s JAMMERS and TOAST’N
JAMMERS marks are likely to cause confusion with McKee’s
JAMMERS mark.
McKee, in its answer, denied the salient allegations of
abandonment. The answer included a counterclaim to cancel
Auburn’s registration for the mark TOAST’N JAMMERS under
Section 2(d) on the basis that Auburn’s mark, when applied
to fruit juice sweetened pastries, so resembles McKee’s
previously used and registered mark JAMMERS for filled cakes
as to be likely to cause confusion.4
Auburn, in its answer to the counterclaim, maintains
that McKee lacks proprietary rights in the mark JAMMERS due
to abandonment, and that Auburn’s rights in TOAST’N JAMMERS
are prior to McKee’s rights in FRUIT JAMMERS. Auburn goes
on to assert that, in any event, there is no likelihood of
confusion between the parties’ marks.5

3 Registration No. 1,743,417, issued December 29, 1992; combined
Sections 8 and 15 affidavit filed.
4 McKee also refers to its mark FRUIT JAMMERS for “candy fruit
snacks,” the subject of Registration No. 1,839,545. However,
McKee does not specifically plead likelihood of confusion with
this mark.
5 Auburn raises, for the first time in its brief, the claim that
McKee’s registration was fraudulently maintained due to the
filing of a false combined Sections 8 and 15 affidavit. Suffice
it to say that this claim was neither pleaded nor tried by the
parties as contemplated by Fed. R. Civ. P. 15(b). We sustain
McKee’s objection to the manifestly late claim and, accordingly,
no consideration has been given to Auburn’s claim of fraud.
Cancellation No. 22,060
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The record consists of the pleadings; the files of the
involved registrations; trial testimony, with related
exhibits, taken by each party; discovery depositions, with
related exhibits, introduced into evidence by the parties’
stipulation; official records introduced by way of Auburn’s
notice of reliance; and Auburn’s responses to McKee’s
interrogatories, and official records introduced by McKee’s
notice of reliance. The parties submitted briefs and were
represented by counsel at an oral hearing held before the
Board.
ABANDONMENT
The material facts in the present case essentially are
undisputed. Rather, the controversy in this case centers on
the legal implications that arise from those facts. The
gist of the parties’ respective positions in this case can
be summarized as follows. Auburn’s theory of the case rests
on the alleged nonuse of the registered mark by Campbell
from March 1983 to October 30, 1992, the date the
registration was assigned to McKee. Auburn contends,
therefore, that the assignment was a naked assignment.
Auburn goes on to contend that it began use of the mark
TOAST’N JAMMERS for fruit juice sweetened pastries in
Cancellation No. 22,060
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September 1991, that is, during the period of abandonment of
McKee’s mark JAMMERS. Auburn maintains that its use
predates McKee’s first use of the mark JAMMERS for filled
cakes in October 1994. Auburn also states that to the
extent that McKee was using a JAMMERS mark prior to this
date, the mark was FRUIT JAMMERS, a different mark from the
JAMMERS mark, for candy fruit snacks, a different product
from the filled cakes listed in the involved registration.
McKee counters by contending “[u]nder the circumstances
existing in this case, the lack of records and deaths of
relevant witnesses make it impossible to either prove or
disprove the extent of Campbell’s use of the JAMMERS mark.”
(brief, p. 16) McKee goes on to contend as follows:
McKee cannot provide any more proof as
to Campbell’s use than Auburn can
provide as to its nonuse. However, the
burden rests on Auburn, since it is the
party seeking cancellation, and Auburn
cannot meet its burden merely by
surmising that if Campbell had records,
they would show nonuse of the JAMMERS
mark. McKee can make exactly the
opposite argument, namely, that if
Campbell had records, they would show
continuing use of the JAMMERS mark.
(brief, p. 16)
According to McKee, Campbell never abandoned the registered
mark, pointing to Campbell’s execution in November 1990 of a
consent agreement to use and register in connection with a
third-party’s attempt to obtain a registration of the mark
JUNGLE JAMMERS for animal cracker cookies. McKee also
Cancellation No. 22,060
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points, as evidence that the mark was not abandoned, to the
very fact that Campbell executed an assignment of the mark
JAMMERS in October 1992, with McKee’s paying $1,500 in
consideration. The assignment, according to McKee,
indicates that Campbell must have had rights in the mark at
that time or else the assignment would not have been made.
McKee goes on to claim that it began its own use of the mark
JAMMERS on filled cakes on October 28, 1994, less than two
years after it acquired the mark by assignment on October
30, 1992.
Campbell’s Use
Campbell is engaged in the production of baked goods
such as bread, cakes, rolls and snacks. Of record are the
discovery depositions of Gary Kennedy, plant manager for
Merico, Inc. (hereinafter “Merico”), a subsidiary of
Campbell, and Richard Witherspoon, senior vice president of
sales for Merico.6 Mr. Kennedy has been employed by
Campbell since 1970, and was line superintendent for snack
cakes at Merico’s plant where JAMMERS snack cakes were
produced. Mr. Kennedy testified that the first product
produced under the JAMMERS mark at the Merico plant was in
1973. Mr. Kennedy indicated that he did not know if any
other facility of Campbell was producing a JAMMERS product

Cancellation No. 22,060
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prior to 1973. During his deposition, Mr. Kennedy consulted
a production book “that shows the units that we produce and
the days we produce them on of every variety in the plant.”
(dep., p. 24) Mr. Kennedy went on to indicate that the book
shows that the last production date of a snack cake under
the mark JAMMERS at the Merico plant was March 7, 1983. Mr.
Kennedy also indicated that he does not have personal
knowledge of any production by Campbell, or by related
entities, of any products under the JAMMERS mark subsequent
to March 7, 1983, nor does he have personal knowledge why
Campbell ceased production of the JAMMERS product.
Mr. Kennedy also indicated that he was not aware of any
use of the mark JAMMERS at the time that the registration of
the mark was assigned to McKee in October 1992. According
to Mr. Kennedy, there is no one in Campbell’s employ who can
testify as to all uses of the JAMMERS mark by Campbell; the
five employees with such knowledge are deceased. Further,
at the time of Campbell’s headquarters’ relocation to St.
Louis in late 1993-early 1994, old files were destroyed and,
to the best of Campbell’s knowledge, the production book
represents the only documentary evidence bearing on
Campbell’s production of any product under the involved mark

6 During Mr. Kennedy’s deposition, it was disclosed that Campbell
was acquired by Anheuser-Busch which now acts as Campbell’s
parent company.
Cancellation No. 22,060
8
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JAMMERS.7 Mr. Kennedy also testified that from March 7,
1983 until the date the registered mark was assigned on
October 30, 1992, he did not participate in any discussions
about the resumption of use of the JAMMERS mark nor was he
aware of any plans by Campbell to resume use. The witness
acknowledged, however, that he would not be informed of such
meetings or plans in the normal course of his duties for
Campbell.
The record includes a copy of an agreement captioned
“consent to use and registration” which was executed in
November 1990. The agreement was signed by Campbell and a
third party, Moran Group, Inc., as a result of Moran’s
attempt to register the mark JUNGLE JAMMERS for animal
cracker cookies. The agreement specifically acknowledges
that “Campbell has previously adopted, used, and registered
the trademark JAMMERS for the goods of filled cakes, cookies
and fruit pies under U.S. Registration No. 1,020,658 issued
September 16, 1975.” Campbell consented to Moran’s
adoption, use and registration of the mark JUNGLE JAMMERS
for animal cracker cookies, and Moran subsequently obtained
the registration.

7 An attorney from Anheuser-Busch was present at Mr. Kennedy’s
deposition. Although the attorney was not sworn as a witness, we
note, in passing, the attorney’s statement that “all our
references to JAMMERS other than the book brought by Mr. Kennedy
either no longer exist or we have been unable to locate them.”
(Kennedy dep., p. 36)
Cancellation No. 22,060
9
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Mr. Witherspoon testified that Auburn, in May 1992,
made an inquiry of Campbell as to the possibility of
Cancellation No. 22,060
10
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Campbell’s producing Auburn’s TOAST’N JAMMERS product. Mr.
Witherspoon also testified that as of that date, Merico was
not producing a product under the mark JAMMERS. Mr.
Witherspoon indicated that he was not aware of any other
subsidiary of Campbell that produced a product under the
mark JAMMERS during the period 1980 through October 1992.
In an assignment document dated October 30, 1992,
Campbell assigned the involved registration to McKee.8
McKee paid $1,500 for the assignment.
McKee’s Use
McKee took the testimony of Joe Davis, McKee’s vice
president and general counsel, and John Petticord, McKee’s
creative services manager.
Mr. Davis testified that McKee, around June 1992,
selected the mark FRUIT JAMMERS for a candy fruit snack
which, according to Messrs. Davis and Petticord, is a
different product from pies, cakes and cookies. Mr. Davis
characterized the product as “the same type of product as
Gummy Bears....a fruit candy.” In conducting a trademark
search to clear the mark, Campbell’s JAMMERS mark was
discovered. McKee decided to approach Campbell to acquire
the JAMMERS mark and, as indicated above, the involved
registration was assigned to McKee on October 30, 1992. In

Cancellation No. 22,060
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connection with the assignment, Mr. Davis testified that
McKee never requested Campbell to furnish any information or
documentation regarding Campbell’s use of the mark JAMMERS.
Further, Mr. Davis testified that McKee never asked Campbell
if Campbell had ever abandoned the mark JAMMERS. Mr. Davis
also indicated that at the time McKee acquired the
registration by assignment, McKee had no knowledge of any
uses of the mark JAMMERS by Campbell or of any goodwill that
might have been associated with the mark. Mr. Petticord
testified that during his twenty years in the business, he
never personally saw any products of Campbell’s bearing the
mark JAMMERS. Mr. Petticord confirmed that McKee never made
any investigation regarding any use of the mark JAMMERS by
Campbell.
McKee obtained Registration No. 1,839,545 for the mark
FRUIT JAMMERS for “candy fruit snacks.” The registration
issued on June 14, 1994, alleging dates of first use of
October 1992.
With respect to McKee’s own first use of the mark
JAMMERS, Mr. Davis testified that there was no use in the
years 1992 and 1993, but that the first use occurred in
October 1994 (more specifically, on October 28, 1994, two
days shy of the two year anniversary date of the

8 The assignment was recorded in the records of the Assignment
Branch of the Office on November 18, 1992 at reel 0919, frame
947.
Cancellation No. 22,060
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assignment). Messrs. Davis and Petticord testified that the
JAMMERS mark was used in connection with filled cakes that
were sold exclusively in three of McKee’s company-owned
retail thrift stores located in Hamilton County, Tennessee,
Gentry, Arkansas and Stuarts Draft, Virginia. Sales have
totaled a few thousand dollars per year. The mark has not
been used in connection with cookies or fruit pies. Mr.
Davis indicated that the reason for confining sales to these
thrift stores is due to McKee’s desire to limit the time,
effort and money to develop the brand until the present
dispute is resolved. McKee’s registration was renewed, but
with respect to “filled cakes” only (“cookies” and “fruit
pies” were deleted).
Auburn’s Use
Auburn took the testimony of Daniel Lang, its chief
operating officer, and Robert Luke, Auburn’s president. Mr.
Lang testified that Auburn first introduced its fruit-filled
toaster pastry product under the mark TOAST’N JAMMERS in
September 1991 at the Natural Food Expo East in Baltimore,
Maryland. Mr. Lang characterized the show as “one of the
largest natural food trade shows in the country,” and
testified that “Auburn had edible slices of the product
there for tasting and sampling” and “we took orders at that
time.” According to Mr. Lang, Auburn
continued to take orders, send out
literature, send samples, and generally
Cancellation No. 22,060
13
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prepare advertising materials for use in
connection with the shipments of the
product....we actually had a product.
We had a formulation. We had tested it.
We took samples to the show. We had a
manufacturer, New Life Bakery, that had
developed the product for us. We had
created a logo and advertising....we
took, like, actual artwork and mock-up
boxes to the show with the Toast’N
Jammers logo on it, and we took actual
samples to that show and so that the
retailers and distributors and brokers
and other attendees of the show could
taste the product. (dep., pp. 20-21)
Mr. Lang went on to testify that the first shipment of the
TOAST’N JAMMERS product occurred in March 1992; sales
records show that the first sale occurred in January 1992.
As indicated earlier, Auburn sent in May 1992 samples of the
TOAST’N JAMMERS product in the TOAST’N JAMMERS packaging to
Campbell for the purpose of soliciting a price quote from
Campbell for producing this product for Auburn.
Mr. Lang also referred to another product launched in
April 1992, fruit juice sweetened fat-free cookies sold
under the mark JAMMERS. An application was filed to
register the mark JAMMERS, but the application was later
abandoned.
According to Mr. Lang, Auburn’s TOAST’N JAMMERS product
is sold in 85-90% of the country’s retail grocery stores,
with sales by 1994 exceeding $5 million.
Cancellation No. 22,060
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ANALYSIS
A federal registration of a trademark may be canceled
if the mark is abandoned. Section 45 of the Trademark Act
provides, in pertinent part, that a mark is abandoned when
the following occurs:
When its use has been discontinued with
intent not to resume such use. Intent
not to resume may be inferred from
circumstances. Nonuse for two
consecutive years shall be prima facie
abandonment.9
A petitioner claiming abandonment has the burden of
establishing the case by a preponderance of the evidence.
Introduction of evidence of nonuse of the mark for two
consecutive years constitutes a prima facie showing of
abandonment and shifts the burden to the party contesting
the abandonment to show either evidence to disprove the
underlying facts triggering the presumption of two years
nonuse, or evidence of an intent to resume use to disprove
the presumed fact of no intent to resume use. Imperial
Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575, 14 USPQ2d
1390 (Fed. Cir. 1990); Cerveceria Centroamericana S.A. v.
Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307 (Fed.

9 See n. 2, supra, regarding the statutory amendment to extend
the minimum period of nonuse to three consecutive years to
establish a prima facie case. We also note that the 1988
amendments added to the definition of abandonment in Section 45:
“’Use’ of a mark means the bona fide use of that mark made in the
Cancellation No. 22,060
15
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Cir. 1989); and Stromgren Supports, Inc. v. Bike Athletic
Company, 43 USPQ2d 1100 (TTAB 1997).
We find that Auburn has shown a prima facie case of
abandonment due to nonuse for almost ten years of the
registered mark by Campbell, the prior owner of the
registered mark. Although McKee criticizes the quantum of
evidence introduced by Auburn, the simple fact remains that
the testimony and supporting documentation bearing on
Campbell’s nonuse and intent not to resume use stand
unrebutted.
The testimony of Messrs. Kennedy and Witherspoon
establish that Campbell, through its related company Merico,
ceased production of JAMMERS fruit-filled cakes on March 7,
1983. Their testimony regarding the cessation of production
is corroborated by the only existing documentary evidence
concerning Campbell’s production of any product under the
mark JAMMERS, namely, the production book introduced during
Mr. Kennedy’s testimony. The witnesses neither were aware
of any one else producing the product under the mark between
March 1983 and the assignment in October 1992, nor of any
plans by Campbell to resume production.
We also take note of the testimony of Messrs. Davis and
Petticord, both of whom work for McKee. Mr. Petticord, one
of McKee’s managers, testified in April 1996 that he never

ordinary course of trade, and not merely to reserve a right in a
Cancellation No. 22,060
16
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personally saw, during his twenty years in the snack food
business, any products of Campbell bearing the mark JAMMERS.
Mr. Davis disclosed that in connection with McKee’s
acquisition of the registration, Mr. Davis never requested
Campbell to furnish information or documentation regarding
Campbell’s use of the mark JAMMERS, nor did he ask Campbell
if it had ever abandoned the mark. Mr. Davis, McKee’s
president, also conceded that, at the time of the
assignment, McKee had no knowledge of any uses of the mark
JAMMERS by Campbell or of any goodwill associated with the
mark.
In rebuttal to Auburn’s prima facie case, McKee relies
on the November 1990 consent agreement and the October 1992
assignment. McKee would have us conclude that Campbell’s
execution of these documents evidences the fact, or at least
raises an inference, that Campbell had not abandoned the
mark JAMMERS.
We do not share this view. Firstly, as a subordinate
point, a contrary inference (that is, that the mark was
abandoned) just as easily could be drawn from these
documents. One could conclude that an owner of a registered
mark, knowing that the registered mark was on shaky ground
due to nonuse of the mark, might readily give its consent to
use and register to another in the hopes of avoiding an

mark.”
Cancellation No. 22,060
17
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attack on its registration. As for the assignment, one
could conclude from the small monetary amount paid for the
registered mark here ($1500) that the rights in the mark
were of minimal value due to nonuse by the owner.
Secondly, and more signifcantly, the consent agreement
and the assignment documents essentially stand alone in the
face of all of the other testimony and evidence pointing to
March 1983 as the time when use of the mark JAMMERS ceased.
Thus, McKee’s argument misses the point--the point being
that by November 1990 (the date of the consent) and October
1992 (the date of the assignment), the registered mark shown
in Registration No. 1,020,658, last used in March 1983, was
already abandoned. Further, even assuming that the consent
shows an intent to resume use, the problem is that it
occurred after the mark was abandoned due to a period of
over two years of nonuse (in point of fact, almost eight
years of nonuse).
We note that any allegation of current use of the mark
was conspicuously absent from both the consent and
assignment documents. Although such language is not
required,10 the absence of same in the documents signed by

10 In saying this, however, we would point out that an assignment
form appearing in a treatise includes the language “[w]hereas
[assignor] has adopted, used and is using a mark which is
registered in the United States Patent and Trademark Office....”
[emphais added] Form No. 18-1, McCarthy, McCarthy on Trademarks
and Unfair Competition, § 18:14 (4th ed. 1998).
Cancellation No. 22,060
18
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Campbell is consistent with the other evidence of record
pointing to nonuse.
We also note that, with respect to the consent
agreement, McKee points out that Campbell was careful in
requiring Moran to refrain from using the mark JAMMERS, or
“except as provided [in the agreement], any trademark which
conflicts with U.S. Registration No. 1,020,568 or which is
confusingly similar to the JAMMERS trademark.” According to
McKee, Campbell had no reason to place these restrictions on
Moran if, in fact, Campbell had abandoned the mark.
The consent and assignment, however, cannot be viewed
in a vaccuum. Rather, these documents must be considered in
the context of the entire record. Suffice it to say that
when viewed in that context, we simply cannot draw the
inference that the documents outweigh the objective evidence
of nonuse. That is to say, based on the entire record
before us, the proper inference to draw is that there was no
use and an intention not to resume use, as opposed to the
inference argued by McKee that there was use.
Campbell’s abandonment of the mark JAMMERS a number of
years prior to the assignment resulted in an invalid
assignment (that is, an assignment in gross) since “[a]n
abandoned trademark is not capable of assignment.” Money
Store v. Harriscorp Finance, Inc., 689 F.2d 666, 216 USPQ
11, 19 (7th Cir. 1989); and Parfums Nautee Ltd. v. American
Cancellation No. 22,060
19
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International Industries, 22 USPQ2d 1306, 1309 (TTAB 1992).
See generally: J.T. McCarthy, McCarthy on Trademarks and
Unfair Competition, supra, §§ 18:17-18:19. The facts, in
and of themselves, that Campbell assigned the mark and that
McKee paid “good and valuable consideration” in the amount
of $1500 (a relatively small amount) for the mark are of
little significance given McKee’s complete lack of knowledge
of any uses of JAMMERS by Campbell, and its complete failure
to inquire and/or request information relative to any uses.
In reaching our decision, we are mindful, of course, of
McKee’s argument that “McKee cannot provide any more proof
as to Campbell’s use than Auburn can provide as to its
nonuse.” The argument simply misses the mark here. All of
the evidence of record points to an abandonment by Campbell.
In this connection, we note the instructive language of our
primary reviewing court: “Especially when a party must
prove a negative, as in proving abandonment through nonuse,
without resort to proper inferences the burdened party could
be faced with an insurmountable task.” Cerveceria
Centroamericana S.A. v. Cerveceria India Inc., supra at 1310
The clear inference to be drawn from the evidence is that
there was no use of the mark JAMMERS by Campbell after March
1983, and that the use was discontinued with intent not to
resume such use. McKee did not commence its own use of the
mark until October 1994. McKee’s own use of JAMMERS in 1994
Cancellation No. 22,060
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represents a new and separate use, and cannot serve to cure
the abandonment during the time when Auburn commenced its
use of the mark. Cerveceria Centroamrericana S.A. v.
Cerveceria India Inc., supra; Mission Dry Corp. v. Seven-Up
Co., 193 F.2d 201, 86 USPQ 263 (CCPA 1951); AmBRIT Inc. v.
Kraft Inc., 805 F.2d 974, 1 USPQ2d 1161 (11th Cir. 1986);
and First National Bank of Omaha v. Autoteller Systems
Service Corp., 9 USPQ2d 1740 (TTAB 1988).
Although we recognize that the deaths of relevant
witnesses and the lack of records complicate McKee’s case,
that does not relieve McKee of its burden of going forward
(burden of production) to rebut Auburn’s prima facie case.
See: Continental Grain Co. v. Strongheart Products Inc., 9
USPQ2d 1238, 1240 (TTAB 1988). In this regard, we cannot
help but specifically note the chronology surrounding
McKee’s acquisition of the mark from Campbell. The
assignment of the registration to McKee occurred in October
1992. The petition for cancellation was served on McKee on
November 19, 1993; McKee’s answer was filed on December 17,
1993. Campbell relocated its headquarters in late 1993-
early 1994, at which time old business records were
destroyed. Thus, shortly prior to (or at least
contemporaneous with) the time of the destruction of
Campbell’s records, McKee was aware that its registration
was under attack due to an alleged abandonment by Campbell.
Cancellation No. 22,060
21
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One is left to wonder why, at that time in 1993, McKee did
not obtain information, whether from Campbell’s personnel or
documents, as to any evidence bearing on Campbell’s earlier
use of the mark. We join Auburn’s questioning of McKee’s
assertion that the only persons who could testify and
corroborate Campbell’s use are dead. As Auburn asks in its
brief (p. 4): “Where are the people who were the customers
for the product? Where are the people who worked producing
the product? Where are the people who made the labels for
the product? Where are the distributors or other persons in
the chain of distribution for this product?”
In sum, we conclude that Campbell abandoned the mark
JAMMERS by virtue of its nonuse after March 1983. The
record is devoid of any evidence showing any use or any
intention to resume use of the mark by Campbell from March
1983 to October 1992 when the registered mark was assigned.
The only evidence in rebuttal to Auburn’s prima facie case
of abandonment are the consent and assignment documents
which are not sufficient to negate the evidence bearing on
Campbell’s nonuse between March 1983 and October 1992. The
assignment occurred after Campbell’s abandonment and,
moreover, after Auburn’s use commenced. McKee commenced its
own use of JAMMERS in October 1994. McKee’s use is a new
use which was subsequent to Auburn’s first use in 1992.
Cancellation No. 22,060
22
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To the extent that the parties have discussed the
effect of McKee’s use of the mark FRUIT JAMMERS on the
abandonment of the mark JAMMERS, we find the arguments to be
irrelevant. The use of FRUIT JAMMERS did not commence until
October 1992 and, in any event, the use was for a different
mark on a different product.
Accordingly, the petition for cancellation is granted.
COUNTERCLAIM
The abandonment of the mark JAMMERS and cancellation of
the registration have a dispositive effect on McKee’s
counterclaim grounded on priority and likelihood of
confusion. In seeking to cancel Auburn’s registration of
the mark TOAST’N JAMMERS for “fruit juice sweetened
pastries,” McKee claims that Auburn’s mark, when used in
connection with Auburn’s goods, so resembles McKee’s
previously used mark JAMMERS for “filled cakes” as to be
likely to cause confusion.
As found above, Campbell abandoned the mark JAMMERS
and, thus, the assignment of the registered mark to McKee is
invalid, and McKee cannot rely on the February 18, 1975
filing date of the application which matured into that
registration. Mr. Davis admitted that there was no use of
JAMMERS by McKee in the years 1992 and 1993, and that first
use was not made until October 1994. As to McKee’s mark
Cancellation No. 22,060
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FRUIT JAMMERS, the first use did not occur until October
1992.
The problem for McKee in the counterclaim is that
Auburn’s first use predates any use McKee can rely on for
either mark. As indicated above, Auburn began use of the
mark TOAST’N JAMMERS in connection with fruit juice
sweetened pastries at a trade show in September 1991.
Auburn’s activities under the mark leading up to the first
shipment of products in early 1992 would appear to be uses
analogous to trademark use sufficient to give Auburn
priority. But we do not even need this basis to find that
Auburn has prior rights. Rather, it is undisputed that
Auburn’s first shipment of its TOAST’N JAMMERS product took
place in the period January 1992-March 1992, that is, a time
prior to McKee’s first use of either JAMMERS or FRUIT
JAMMERS. Even the filing date of Auburn’s underlying
application (April 27, 1992) is prior to any first use date
that McKee can claim in this proceeding. Thus, McKee does
not have priority, and its Section 2(d) claim must fail.
See: American Standard Inc. v. AQM Corporation, 208 USPQ
840 (TTAB 1980).
Cancellation No. 22,060
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Decision: The petition for cancellation is granted and
Registration No. 1,020,658 will be canceled in due course.
The counterclaim is dismissed.
J. D. Sams
E. J. Seeherman
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board