Brick Bodies Fitness Services, Inc.v.BRIK Fitness Solutions, LLC

Trademark Trial and Appeal Board

Jan 20, 2016

No. 91208694 (T.T.A.B. Jan. 20, 2016)

Mailed:
January 20, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Brick Bodies Fitness Services, Inc.
v.
BRIK Fitness Solutions, LLC
_____

Opposition No. 91208694
to application Serial No. 85594830
_____

Ronald E. Shapiro of Shapiro & Silverstein PLLC for Brick Bodies Fitness
Services, Inc.

Jeromye V. Sartain of One3 IP Management, P.C. for BRIK Fitness
Solutions, LLC.
______

Before Seeherman, Cataldo and Masiello, Administrative Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

BRIK Fitness Services, Inc. (“Applicant”) has applied to register
BRIKFITNESS, as shown below:1

1 Application Serial No. 85594830, filed April 11, 2012, asserting first use on
March 19, 2012 and first use in commerce on March 25, 2012.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91208694
2
The description of the mark entered in the application is:

The mark consists of a grey circle with a streak of white cutting
from the top left to the bottom right of the circle and four partial
burgundy-outlined bricks, whose outlines form a "B" and an "F"
side by side. The circle casts a grey shadow directly underneath
the circle. To the right of the circle is the word "brikfitness" with
the word "brik" in thick burgundy letters and the word "fitness"
in black thin letters, all lower case.

The services, all in Class 41, are as follows:
Conducting fitness classes; Consulting services in the fields of
fitness and exercise; Personal fitness training services and
consultancy; Personal fitness training services featuring aerobic
and anaerobic activities combined with resistance and flexibility
training; Physical fitness conditioning classes; Physical fitness
consultation; Physical fitness instruction; Physical fitness studio
services, namely, providing exercise classes, body sculpting
classes, and group fitness classes; Physical fitness studio
services, namely, providing group exercise instruction,
equipment, and facilities; Physical fitness training of individuals
and groups; Physical fitness training services; Providing fitness
and exercise facilities.

Brick Bodies Fitness Services, Inc. (“Opposer”) has opposed registration of
the mark on the ground of likelihood of confusion, alleging that Opposer owns
a family of marks that feature the term BRICK or BRICK’S, which Opposer
uses with a variety of health and fitness-related services, including health
club services and providing exercise classes and personal training; that
Opposer owns registrations for the marks BRICK BODIES, LYNNE
BRICK’S, BUILD YOUR BODY WITH BRICK and BRICK BODIES
EXTREME; that Opposer has used each of its marks since prior to the date of
first use claimed in Applicant’s application; and that Applicant’s services are
identical or closely related to Opposer’s services.
Opposition No. 91208694
3
In its answer, Applicant denied the salient allegations of the notice of
opposition, and asserted “affirmative defenses” which are primarily
amplifications of its denials.
By operation of the rules, the record includes the pleadings and the file of
the opposed application. The parties have also submitted evidence under
notices of reliance, and both have agreed that the material submitted by
notice of reliance is of record. See Opposer’s brief, 10 TTABVUE 7;
Applicant’s brief, 14 TTABVUE 8-9. Therefore, to the extent that any of the
submitted materials would not be acceptable for submission under notice of
reliance, we deem the parties to have stipulated to their introduction.
Opposer has made of record copies of its pleaded registrations, showing
status and title, taken from the electronic database of the U.S. Patent and
Trademark Office, to wit:
MARK GOODS/SERVICES
BRICK BODIES
(typed drawing)
T-shirts, leotards, shorts, sport shirts, jackets and
hats (Class 25)
Educational services; namely, conducting exercise
and physical fitness classes; providing exercise and
physical fitness training; conducting classes for
exercise and physical fitness (Class 41)2
LYNNE BRICK’S
(standard characters)
Health club services, namely, providing instruction
and equipment in the field of physical exercise;
Physical fitness studio services, namely, providing
exercise classes, body sculpting classes, and group
fitness classes; Physical fitness studio services,
namely, providing group exercise instruction,
equipment, and facilities; Providing a website

2 Registration No. 1797663, issued October 12, 1993; renewed twice. The registration
had originally included goods and services in Classes 9, 16, 35 and 42, but they have
been cancelled from the registration.
Opposition No. 91208694
4
featuring information on exercise and fitness;
Providing an on-line computer database featuring
information regarding exercise and fitness;
Providing assistance, personal training and
physical fitness consultation to corporate clients to
help their employees make physical fitness,
strength, conditioning, and exercise alterations in
their daily living; Providing assistance, personal
training and physical fitness consultation to
individuals to help them make physical fitness,
strength, conditioning, and exercise improvement
in their daily living; Providing fitness and exercise
facilities; Providing fitness and exercise studio
services, namely, pilates instruction and training
(Class 41)3
BUILD YOUR BODY
WITH BRICK
(standard characters)
Health club services, namely, providing instruction
and equipment in the field of physical exercise;
Physical fitness studio services, namely, providing
exercise classes, body sculpting classes, and group
fitness classes; Physical fitness studio services,
namely, providing group exercise instruction,
equipment, and facilities; Providing a website
featuring information on exercise and fitness;
Providing an on-line computer database featuring
information regarding exercise and fitness;
Providing assistance, personal training and
physical fitness consultation to corporate clients to
help their employees make physical fitness,
strength, conditioning, and exercise alterations in
their daily living; Providing assistance, personal
training and physical fitness consultation to
individuals to help them make physical fitness,
strength, conditioning, and exercise improvement
in their daily living; Providing fitness and exercise
facilities; Providing fitness and exercise studio
services, namely, pilates instruction and training
(Class 41)4
BRICK BODIES
EXTREME (standard
characters)
Physical fitness studio services, namely, providing
exercise classes, body sculpting classes, and group
fitness classes (Class 41)5

3 Registration No. 3922743, issued February 22, 2011.
4 Registration No. 3922744, issued February 22, 2011.
5 Registration No. 4048830, issued November 1, 2011.
Opposition No. 91208694
5
The proceeding has been fully briefed.

The record shows that Opposer owns and operates health and fitness
clubs. It is a Maryland corporation, and is associated with various entities, all
of which have “Brick Bodies” in their name, e.g., Brick Bodies at Perry Hall,
LLC, and all have their principal offices in Maryland. Opposer’s response to
Applicant’s Interrogatory No. 1.
Applicant is a health and wellness facility that focuses on fat loss and
corrective exercise. Applicant’s response to Opposer’s Interrogatory No. 1.
The term BRIK in Applicant’s mark was derived from the first names of the
original owners, Brian Nguyen and Nik Herold. Applicant’s response to
Interrogatory No. 5.6
In view of its ownership of its pleaded registrations, Opposer has shown
that it has a real interest in the proceeding, and therefore has established its
standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982). Further, because of Opposer’s
registrations, priority is not in issue. See King Candy Company v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).

6 In its notice of reliance, 7 TTABVUE 6, Applicant stated that this Interrogatory
response had been made of record by Opposer’s notice of reliance. In fact, although
Opposer included the entirety of Applicant’s responses to Opposer’s first set of
interrogatories with its notice of reliance, Opposer actually made of record only
Applicant’s responses to Interrogatories 1, 3 and 4. See 5 TTABVUE 3. However, as
noted previously, Opposer treated the entirety of Applicant’s notice of reliance as
being of record, and therefore the two interrogatory responses relied on by Applicant
and filed with Opposer’s notice of reliance are of record.
Opposition No. 91208694
6
This brings us to the issue of likelihood of confusion. Our determination of
this issue is based on an analysis of all of the probative facts in evidence that
are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
The services are in part identical and in part closely related. For example,
Applicant’s “conducting fitness classes” is the same as or encompassed by the
“conducting exercise and physical fitness classes” identified in Opposer’s
BRICK BODIES registration, and the “providing exercise classes” identified
in Opposer’s remaining three registrations. See Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with
respect to any item that comes within the identification of goods in the
application). Applicant does not dispute the similarity of the services:
“Applicant would contend that notwithstanding the similarities between the
services of the parties, confusion is yet unlikely….” Brief, 14 TTABVUE 16.
Thus, this du Pont factor favors a finding of likelihood of confusion.
Because the services are in part identical, they must be deemed to travel
in the same channels of trade. In re Smith and Mehaffey, 31 USPQ2d 1531,
1532 (TTAB 1994). Applicant argues that its services are rendered in
California and Opposer’s are rendered in Maryland, and because the services
are rendered in different physical locations, there is “little if any opportunity
Opposition No. 91208694
7
for relevant consumers to encounter the marks at the same time or in the
same purchasing decision.” Brief, 14 TTABVUE 19. Essentially, Applicant is
asserting that the channels of trade are different because the parties’ services
are rendered in different geographical areas. This argument might have some
validity if this were a concurrent use proceeding in which the parties were
seeking registrations restricted to separate geographic areas. However,
Opposer’s registrations are nationwide in scope, and Applicant is also
attempting to obtain a geographically unrestricted registration. With such a
registration, Applicant would be free to use its mark anywhere in the United
States, including the area in which Opposer uses its marks. See Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990 (The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application regardless of what the
record may reveal as to … the particular channels of trade….”). The du Pont
factor of the channels of trade favors a finding of likelihood of confusion.
We next turn to the primary factors that Applicant contends avoid
likelihood of confusion, the similarities/dissimilarities of the marks, the
strength of Opposer’s marks, and the number and nature of similar marks in
use on similar goods. Essentially, Applicant argues that Opposer’s marks are
not entitled to a broad scope of protection, and therefore the similarities
Opposition No. 91208694
8
between the parties’ marks are not a sufficient basis on which to find
likelihood of confusion.
First, we point out that, although Opposer has pleaded that it has a
family of BRICK marks, it has not proved this claim. Although Opposer has
shown that several of its pleaded marks are used together on its website, e.g.,
BUILD YOUR BODY WITH BRICK, BRICK BODIES, and LYNNE BRICK’S
appear on the same webpage that was submitted as Exhibit B to Opposer’s
notice of reliance, 5 TTABVUE 14,7 Opposer has not submitted any
information about the public’s exposure to these materials, including hits on
the webpages, such that we can conclude that the public would view
Opposer’s marks as being part of a BRICK family. Simply using a series of
similar marks does not of itself establish the existence of a family. There
must be a recognition among the purchasing public that the common
characteristic is indicative of a common origin of the goods or services. J & J
Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889,
1891 (Fed. Cir. 1991). Accordingly, in considering the first du Pont factor, we
must compare Opposer’s individual marks with Applicant’s mark.
With respect to the strength of the marks, Applicant asserts that BRICK
in Opposer’s marks is a surname, and therefore is a weak mark.8 There is no

7 Opposer states that this exhibit is the specimen for the Section 8 affidavit for its
Registration No. 1797663 for BRICK BODIES.
8 We do not view this argument as an impermissible collateral attack on Opposer’s
registrations, since Applicant is not claiming that the marks as a whole are
primarily merely surnames, but only that the term BRICK in these marks is a
surname.
Opposition No. 91208694
9
question that BRICK is the last name of Opposer’s founders, Lynne and
Victor Brick, and that the mark LYNNE BRICK’S is derived from Ms. Brick’s
name. Opposer’s response to Interrogatory No. 5. However, BRICK can by no
means be considered primarily merely a surname, since it has a clearly
understood meaning as a common object, a hardened clay block.9 Further, in
three of the marks, BRICK would just as likely, or more likely, be understood
as having the “block of hardened clay” meaning, while in the LYNNE
BRICK’S mark the mark as a whole would be understood as referring to an
individual, rather than as a surname.
Applicant has submitted pages from five third-party applications and
registrations for marks that contain the element BRICK. Only two of these
are registrations, BRICKHOUSE CARDIO CLUB in standard characters for
“personal fitness training services featuring aerobic and anaerobic activities
combined with resistance and flexibility training”10 and BRICK CANVAS for
“fitness and exercise studio services, namely, yoga instruction and training,”
and for various health spa services.11 The three third-party applications, all

9 We take judicial notice that “brick” is defined, inter alia, as “a block of clay
hardened by drying in the sun or burning in a kiln, and used for building, paving,
etc.: traditionally, in the U.S. a rectangle 2.25 x 3.75 x 8 inches (5.7 x 9.5 x 20.3 cm),
red, brown or yellow in color.” Dictionary.com, based on Random House Dictionary,
© 2014. The Board may take judicial notice of dictionary definitions. University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

10 Registration No. 4059131, Exhibit A to Applicant’s notice of reliance, 9 TTABVUE
8.
11 Registration No. 4314521, Exhibit C to Applicant’s notice of reliance, 9 TTABVUE
38.
Opposition No. 91208694
10
of which are “dead” due to abandonment or an opposition being sustained, are
for BRICKHOUSE with the H in the form of a house, BRICK SPORT
PERFORMANCE TRAINING and BRICKYARD GYM. The third-party
applications have probative value only to show that the applications were
filed. Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1360
(TTAB 2014). As for the two registrations, third-party registrations can be
used, in the same manner as dictionaries, to show that a mark, or an element
in a mark, has a meaning or significance within a particular industry. See In
re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010);
Tektronix, Inc. v. Daktronics, Inc.¸534 F.2d 915, 189 USPQ 693 (CCPA 1976).
However, the existence of two third-party registrations, without more, would
not be sufficient to show this.
Applicant appears to rely on the third-party applications and registrations
to show that the examining attorneys examining the respective applications
did not cite Opposer’s registrations, and therefore did not believe that there
was a likelihood of confusion between Opposer’s registered marks and the
third-party marks. However, the fact that certain examining attorneys did
not cite Opposer’s registrations against the third-party marks does not bind
this Board. The marks involved in those applications and registrations are
not the same as Applicant’s mark. We must decide the case before us on its
own merits. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001).
Opposition No. 91208694
11
Applicant has submitted pages from various websites in an attempt to
show third-party use. Exhibit I to Applicant’s notice of reliance, 7 TTABVUE
131, is a webpage that has, as its prominent heading, FITNESS FOR
WOMEN on a yellow background with a swirl underlining it. It shows that
the third party is located in Brick, NJ. Therefore, consumers are likely to
view the term BRICK in text such as “Brick’s Best Health Club and Fitness
Center for Women Only!” and “Brick Fitness for Women” as referring to the
geographic location of the services. Exhibit J is excerpts from a website for a
fitness center identified as located in Cooper City, FL called BRICKFIT
FITNESS & WELLNESS; Exhibit K is webpages for what appear to be two
branches of the same entity, BRICK BRICK in New York and BRICK BRICK
in West Hollywood, CA; Exhibit L is a webpage showing the mark BRICKS
FITNESS in Minot, ND and listing various exercise classes and equipment,
e.g., Zumba, Kettlebells, Yoga, Pilates and Drums Alive; Exhibit M is pages
from the website for CROSSFIT BRICK HOUSE FITNESS, located in San
Jose, CA; Exhibit N consists of webpages for THE BRICK, which has an
address in St. Simons Island, GA, and has the philosophy that “you must go
out into the world and lay your bricks perfectly to build the life you want,”
and that “Everyone should have fitness as one of their bricks.” Finally,
Exhibit O consists of pages from a website for BRICK CITY HEALTH &
FITNESS, which describes itself as a gym serving Ocala (FL) and all of
Marion County.
Opposition No. 91208694
12
Third-party use of similar marks on similar goods or services is relevant
to show that a mark is relatively weak and entitled to only a narrow scope of
protection. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison
Fondée en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005).
However, “where the ‘record includes no evidence about the extent of [third-
party] uses …[t]he probative value of this evidence is thus minimal.’” Id.,
emphasis and bracketed language in original, quoting Han Beauty, Inc. v.
Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557 (Fed. Cir. 2001). In this
case, the third-party uses appear to be limited in geographic scope, such that
we cannot conclude that consumers would be aware of the various third-party
uses, and therefore distinguish them based on elements other than the term
BRICK that is common to each.
However, the third-party uses can bear on the inherent strength or
weakness of an opposer’s mark. Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1675. Like third-party registrations, the use of
a term as a trademark by a number of entities can indicate that it carries a
suggestive or descriptive connotation for the particular goods or services. Id.,
115 USPQ2d at 1675 (extensive evidence of third-party use and registrations
indicates that the term carries a suggestive or descriptive connotation in the
particular industry). Although the two third-party registrations discussed
above are, alone, not sufficient to show that BRICK has a suggestive or
descriptive meaning, the fact that eight third parties have chosen to adopt
Opposition No. 91208694
13
marks or trade names containing the word BRICK indicates that BRICK has
a significance in the fitness industry, and this in turn affects the strength to
be accorded Opposer’s mark. In short, the fact that Opposer’s and Applicant’s
marks both contain the term BRICK (or the variant spelling BRIK) may not,
without more, be a sufficient basis to find likelihood of confusion.12
With this in mind, we turn to a consideration of the marks. We
concentrate our analysis of the similarity or dissimilarity of the marks on
Applicant’s mark and Opposer’s mark BRICK BODIES, because we consider
BRICK BODIES to be the closest of Opposer’s marks to Applicant’s mark. If
we find likelihood of confusion with respect to this mark, the opposition will
be sustained, and therefore there would be no need for us to consider
likelihood of confusion with respect to Opposer’s three other pleaded marks.
On the other hand, if we find no likelihood of confusion with respect to
BRICK BODIES, then a fortiori there can be no likelihood of confusion with
marks that are not as similar. See In re Max Capital Group Ltd., 93 USPQ2d
1243, 1245 (TTAB 2010).
Because of the manner in which the element BRIKFITNESS in
Applicant’s mark is displayed, i.e., with “the word ‘brik’ in thick burgundy
letters and the word ‘fitness’ in black thin letters,”13 the mark will be viewed
by consumers as consisting of the two words BRIK and FITNESS. Moreover,
the term BRIK will be understood as the word BRICK with a variant

12 In any event, we must compare the marks in their entireties.
13 See the description of the mark provided by Applicant in its application.
Opposition No. 91208694
14
spelling, an understanding reinforced by the design element, which, as
Applicant states in its description of the mark, consists of “four partial
burgundy outlined bricks.” Further, despite Applicant’s arguments about the
significance of the design element, e.g., it appears as the first element of the
mark and therefore “is likely to make an impression on and be remembered
by customers,” brief, 14 TTABVUE 18, we find that it does not serve to
distinguish Applicant’s mark from Opposer’s mark. If a mark comprises both
a word and a design, then the word is normally accorded greater weight
because it would be used by purchasers to request the goods or services. In re
Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). That principle is
applicable in this case, since the literal component BRIKFITNESS is the
portion of the mark that can be articulated. See In re National Data Corp.,
753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (there is nothing
improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests
on a consideration of the marks in their entireties). We are not persuaded by
Applicant’s argument that because the letters “B” and “F” appear within the
brick design logo, “the actual text portion of the mark is more properly
characterized as BF BRIKFITNESS.” Id. It is not obvious to us that
consumers will view the design as the letters B and F formed by bricks,
instead of just four outlined bricks, but even if they did, they are not likely to
say the letters “BF” when referring to the mark; if the letters have any
Opposition No. 91208694
15
significance, we find them to primarily reinforce the word portion of the mark
inasmuch as they consist of the initial letters of the words Brik Fitness. The
brick design, as well, reinforces the word BRIK.
We emphasize, particularly given the suggestive meaning we accord to
BRICK for the services at issue, that our conclusion that the marks are
similar does not rest solely on the inclusion in the marks of the element
BRICK/BRIK. Although we recognize that there are differences in the marks,
most notably, that Opposer’s mark has the second word BODIES and
Applicant’s mark has the second word FITNESS, these differences are not
sufficient to distinguish the marks. Because these marks are used in
connection with physical fitness classes, the words BODIES and FITNESS
convey a similar impression. See Kenner Parker Toys Inc. v. Rose Art
Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453, 1457 (Fed. Cir. 1992) (in
marks PLAY-DOH and FUN DOUGH, PLAY and FUN convey a very similar
impression); General Mills Fun Group, Inc. v. Channel Companies, Inc., 183
USPQ 367, 369 (TTAB 1974) (PLAY FACTORY and FUN FACTORY are
substantially similar and create almost identical connotations). This
connection between BODIES and FITNESS appears, for example, in the text
of the third-party BrickFit website, which states, under Fitness Classes, “Get
in shape and create your dream body,” 7 TTABVUE 137; the comment on the
BRICK BRICK website that “You’ll watch your body exceed your
expectations,” id. at 141; and the text on THE BRICK website that “Fitness
Opposition No. 91208694
16
isn’t just about looks and weight. It’s about building a good foundation for
your body….” Id. at 152-53.
Accordingly, when the marks are considered in their entireties, and giving
due weight to the dominant portions thereof, we find that they convey similar
connotations and commercial impressions, and that these similarities
outweigh any differences in appearance and pronunciation caused by the
words BODIES and FITNESS and the design element in Applicant’s mark.
Given that the marks are used for legally identical services, we find that the
first du Pont factor, the similarity of the marks, weighs in favor of a finding
of likelihood of confusion. When marks would appear on virtually identical
goods or services, the degree of similarity necessary to support a conclusion of
likely confusion declines. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
In reaching our conclusion that confusion is likely, we have considered the
arguments made by Applicant regarding other du Pont factors. With respect
to the fourth du Pont factor, which concerns the conditions of purchase,
Applicant argues that consumers will be careful in making their purchasing
decisions because of “the impact a health or fitness facility may have on a
person physically, not to mention emotionally or psychologically, and the
related financial considerations involved in selecting membership in one gym
or health club versus another.” Brief, 14 TTABVUE 20. However, Applicant
has not submitted any evidence in support of this argument, nor has
Opposition No. 91208694
17
Applicant submitted any evidence in support of its statement that “a gym
membership is a contract, and often a relatively long-term one, sometimes
committing a member to a year or more and several hundred dollars.” Id.
Applicant apparently recognizes that it has failed to submit any evidence
with respect to this du Pont factor, because it has asked us to take judicial
notice “of the fact that obtaining a ‘gym membership’ or the like is not an
‘impulse’ purchase, but instead one that is typically given a reasonable
degree of care,” and to judicially notice that there has been a “rise of
consumer interest in health and fitness.” Id. We decline to take judicial
notice of these arguments, as they are not facts that are not subject to
reasonable dispute. See FRE 201(b).14 In fact, the only evidence we have
regarding the cost of health club services is a statement on Opposer’s website
that advertises “a zero joining fee.” See 5 TTABVUE 14 and 7 TTABVUE 116.
Thus, we cannot treat the consumers for the identified services as careful
or sophisticated. Based on the website evidence submitted by Applicant for
the parties’ services and those of third parties, we consider the services to be
directed to the public at large. Therefore, we find that this du Pont factor is
either neutral or weighs somewhat in favor of Opposer.
Applicant points to the fact that there is no evidence of actual confusion,
and argues that this tips the scales toward a finding that there is no

14 The court may judicially notice a fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial court’s territorial jurisdiction or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
Opposition No. 91208694
18
likelihood of confusion. Brief, 14 TTABVUE 21. “The length of time during
and conditions under which there has been concurrent use without evidence
of actual confusion” is one of the du Pont factors. 177 USPQ at 567. However,
in this case we have no evidence on which we could base a conclusion that the
absence of actual confusion shows that confusion is not likely to occur. Even if
we assume that Applicant commenced use of its mark in March 2012, the use
date claimed in its application but not established on this record, and
continued such use through the close of trial on March 24, 2014 (also not
established on this record), this is not an appreciably long period for
instances of actual confusion to be brought to the attention of either party.
Further, according to Applicant, the parties’ services are currently offered in
widely separated geographic areas, and this, rather than the marks’ not
being likely to cause confusion, could explain why there has been no actual
confusion. See Peopleware Systems, Inc. v. Peopleware, Inc., 226 USPQ 320,
321 (TTAB 1985) (“the absence of evidence of actual confusion is
understandable since applicant is headquartered in the state of Washington
near Seattle, while opposer’s activities are centered in Minneapolis,
Minnesota”). We treat the du Pont factors regarding actual confusion and
lack of evidence of actual confusion as neutral.
These are the only du Pont factors that the parties have discussed and, to
the extent that any others may be applicable, we treat them as neutral.
Opposition No. 91208694
19
There is one further argument that was made by Applicant that we must
address. Applicant contends that Opposer has maintained this opposition in
bad faith and is engaging in a “bullying” tactic because Opposer is effectively
claiming exclusive rights to the word BRICK in connection with exercise-and
fitness-related services, a claim that Applicant asserts amounts to gross over-
reaching. Brief, 14 TTABVUE 21. Applicant bases this contention on the fact
that, in connection with the examination of the third-party applications
discussed above, the examining attorneys did not cite Opposer’s registrations
as a bar to the registration of those BRICK marks, and the fact that Opposer
brought opposition proceedings against two of those third-party applications,
for BRICK SPORT PERFORMANCE TRAINING and BRICKYARD GYM.15
As we have previously stated, the fact that examining attorneys have not
cited a particular registrant’s registrations against third-party applications
has no probative value in terms of our making a decision on likelihood of
confusion, nor do we accept Applicant’s argument that if an opposer’s
registration was not cited as a bar, an opposer who relies on such registration
is guilty of bullying or overreaching. Under that theory, the opposition
procedure would essentially be limited to opposers who assert only common

15 In its brief Applicant states that a third opposition was brought by Opposer, but
acknowledges that evidence of this opposition was not made of record. Applicant
claims that this “is competent evidence” under Trademark Rule. 2.122(e). Although
Trademark Rule 2.122(e) provides that official records of the USPTO can be made of
record under a notice of reliance, this does not mean that a party may submit such
materials after its testimony period ends. As a side point, in this case Applicant has
only stated what it claims occurred; no records were actually submitted. We have
given no consideration to this asserted third opposition, but even if we had it would
not affect our decision herein.
Opposition No. 91208694
20
law rights. Although there may be rare situations in which a party misuses
the Trademark Act and the procedures of the Trademark Trial and Appeal
Board to bring unwarranted proceedings, normally the appropriate method
for asserting a claim for misuse is a motion for sanctions brought pursuant to
Rule 11(b) of the Federal Rules of Civil Procedure. See also Patent and
Trademark Office Rule 11.18. We also point out that normally it is a point in
an opposer’s favor to show that it has been diligent in protecting its mark,
and often a party will submit evidence that it has brought opposition
proceedings against third-party marks in support of its case. In the present
case, we find that Opposer’s actions do not show any “bullying” or untoward
conduct.
In conclusion, we find that Applicant’s mark, BRIKFITNESS and design,
used in connection with its identified services, is likely to cause confusion
with Opposer’s mark BRICK BODIES for the services identified in Class 41
of Registration No. 1797663. In view thereof, we need not consider the issue
of likelihood of confusion with respect to Opposer’s three other pleaded
registrations.
Decision: The opposition is sustained on the basis of likelihood of
confusion with the mark in Registration No. 1797663.