Brittex Financial, Inc.v.Dollar Financial Group, Inc.

Trademark Trial and Appeal Board

Jan 17, 2018

No. 92060888 (T.T.A.B. Jan. 17, 2018)

Faint
Mailed: January 17, 2018

Cancellation No. 92060888
Brittex Financial, Inc.

v.
Dollar Financial Group, Inc.

Before Kuhlke, Ritchie, and Lynch,
Administrative Trademark Judges.

By the Board:

This case now comes up on Respondent’s motion, filed July 14, 2017 for summary
judgment on the pleaded issues of likelihood of confusion, abandonment due to
nonuse, fraud and its Morehouse defense, and Petitioner’s motion, filed July 18, 2017
for partial summary judgment on the issue of priority. The motions are fully-briefed.
Background
By its amended petition to cancel, Petitioner claims common law rights in the
mark MONEY MART for pawn brokerage and pawn shop services in use since 1993.
Petitioner seeks to cancel Respondent’s two registrations for the marks 1) MONEY
MART in standard character form for, “pawn brokerage and pawn shops; providing
monetary exchange services, namely, exchanging gold and silver of others for cash;
issuing of prepaid debit cards; issuing of prepaid gift cards; gift card transaction
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Cancellation No. 92060888

2
processing services,” in Class 36, claiming dates of first use and first use in commerce
of 2005;1 and 2)
for “loan financing; check cashing and electronic funds transfer services, but not
including extensions of credit except to the extent evidenced by a check; pawn
brokerage and pawn shops; providing monetary exchange services, namely,
exchanging gold and silver of others for cash; issuing of prepaid debit cards; issuing
of prepaid gift cards; gift card transaction processing services” in Class 36 claiming a
date of first use of November 1996 and first use in commerce of 1997.2 By its second
amended answer, Respondent claims use of the MONEY MART mark in interstate
commerce since at least as early as 1984, and asserts a Morehouse defense based on
its incontestable Registration No. 3206120, registered February 6, 2007, for the mark
MONEY MART in standard character form for “loan financing” in Class 36, claiming
dates of first use of July 1, 1984.
Filing Dates of the Motions for Summary Judgment
Motions for summary judgment must be filed prior to the due date for pretrial
disclosures. Trademark Rule 2.127(e)(1). Respondent filed its motion for summary

1 Registration No. 4524540, filed March 22, 2013, registered May 6, 2014. A disclaimer of
“MONEY” is of record. The registration includes a claim of ownership for prior registrations.

2 Registration No. 4532073, filed March 28, 2013, registered May 20, 2014. A disclaimer of
“MONEY” and the description “the mark consists of the stylized wording "MONEY MART"
superimposed over a circular design” are of record. Color is not claimed as a feature of the
mark. The registration includes a claim of ownership for prior registrations.
Cancellation No. 92060888

3
judgment prior to the July 16, 2017 due date for pretrial disclosures, while Petitioner
filed its motion for partial summary judgment two days after the due date. By its
response and reply brief, Respondent argues that Petitioner’s motion should not be
considered because it was untimely filed. July 16, 2017 was a Sunday, and pretrial
disclosures served on July 17, 2017 would have been considered timely, while a
motion for summary judgment filed on that date would have been untimely. See Fed.
R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Hewlett-
Packard Dev. Co. v. Vudu Inc., 92 USPQ2d 1630, 1631 (TTAB 2009) (motion for
summary judgment is pretrial device intended to save time and expense of full trial).
However, the filing of Respondent’s motion tolled the due date for pretrial
disclosures. See Trademark Rule 2.127(d); see also TBMP § 510.03(a) (case is
automatically suspended upon filing of motion for summary judgment). The Board
noted this in its order suspending proceedings for consideration of the motions.3 The
Board also scheduled a teleconference with the parties to discuss Accelerated Case
Resolution (ACR) and set a briefing schedule to take account of the overlapping
grounds for the motions.4 Thus we consider the motion to be timely.
Petitioner’s Claim of Nonuse Stricken
In its response, Petitioner concedes its pleaded claim of abandonment due to
nonuse as to Respondent’s involved Registration Nos. 4524540 and 4532073, but does
not concede prior use by Respondent for pawn brokerage and pawn shop services. As

3 46 TTABVUE 1.

4 Id. at 2.
Cancellation No. 92060888

4
such, Petitioner’s claim of abandonment due to nonuse is stricken and Petitioner
may not replead it at this late date. In view thereof, Respondent’s motion for
summary judgment on this claim is moot.
Motions for Summary Judgment
The purpose of a motion for summary judgment is to promote judicial economy
and avoid unnecessary trial where there are no genuine disputes of material fact. See
Fed. R. Civ. P. 56(a). See also Exxon Corp. v. Nat'l Foodline Corp., 579 F.2d 1244, 198
USPQ 407, 408 (CCPA 1978) (noting basic purpose of summary judgment procedure
is judicial economy and to save time and expense of full trial when it is unnecessary).
The evidence of record and any inferences which may be drawn from the underlying
undisputed facts must be viewed in the light most favorable to the non-moving party.
See Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir.
1992). In considering the propriety of summary judgment, the Board may not resolve
disputes of material fact against the non-moving party; it may only ascertain whether
such issues are present. See Lloyd's Food Prods. Inc. v. Eli’s Inc., 987 F.2d 766, 25
USPQ2d 2027 (Fed. Cir. 1993); Opryland USA Inc. v. Great Am. Music Show Inc.,
970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992).
The burden is on the party moving for summary judgment to demonstrate the
absence of any genuine dispute of material fact, and that it is entitled to summary
judgment as a matter of law. Fed. R. Civ. P. 56(c).

Cancellation No. 92060888

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Standing
Petitioner as a common law user must establish its standing for purposes of
summary judgment or trial. As plaintiff moving for partial summary judgment,
Petitioner must establish not only that there are no genuine disputes of fact regarding
the substantive grounds, but also that there is no genuine dispute of material fact
that it has standing as a matter of law. See Int'l Order of Job's Daughters v.
Lindeburg and Co., 727 F.2d 1087, 220 USPQ 1017, 1020 (Fed. Cir. 1984).
Exhibit F attached to Petitioner’s motion for summary judgment comprises
portions of Respondent’s discovery deposition of Chris Upton, an owner of Petitioner.
Trademark Rule 2.127(e)(2).5 Mr. Upton testifies that Petitioner acquired the Money
Mart chain of stores in mid-2007, and that Petitioner currently owns and operates 10
or 11 Money Mart pawn stores.6
The portions of deposition testimony submitted by Petitioner are sufficient to
establish its standing as a competitor of Respondent for purposes of summary
judgment. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed.
Cir. 2000) (direct commercial interest satisfies standing test). Moreover, Respondent

5 Petitioner also submitted various other documents with its motion. No declaration was
submitted with the motion. Respondent brought the lack of a declaration to the Board’s
attention in its combined response and reply brief, and Petitioner submitted its declaration
with its reply brief. The declaration is made by Chris Upton, an owner of Petitioner and
serves to introduce business records submitted as exhibits to the motion for summary
judgment.

6 44 TTABVUE 54-56.

Cancellation No. 92060888

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does not contend otherwise. Accordingly, we find no genuine dispute of material fact
exists regarding Petitioner’s standing on summary judgment.7
Morehouse Defense
The Morehouse defense is an equitable affirmative defense available in situations
where a registrant already owns a registration for the same (or substantially similar)
mark and goods or services, and which registration has not been challenged. It is
based on the theory that a plaintiff cannot be injured by a later registration because
there already exists a similar registration and, therefore, an additional registration
for the same or substantially similar mark and goods or services can no more injure
the plaintiff than the prior registration. Morehouse Mfg. Corp. v. J. Strickland & Co.,
407 F.2d 881, 160 USPQ 715 (CCPA 1969).
By its order of December 16, 2016 (“Prior Order”), the Board found Respondent’s
Morehouse defense to be sufficiently pleaded only as to its prior Registration No.
3206120,8 and allowed Respondent to replead its Morehouse defense, which
Respondent did by its second amended answer.9 Respondent argues there can be no
likelihood of confusion between its mark and Petitioner’s common law mark because
the Board has already found Petitioner’s common law mark MONEY MART and
Respondent’s registered mark are identical, and found Respondent’s loan financing
services in the registration are substantially the same as Petitioner’s “pawn

7 Whether Petitioner can establish standing at trial is not decided here.

8 30 TTABVUE 10.

9 31 TTABVUE 5.

Cancellation No. 92060888

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brokerage and pawn shop services.”10 Contrary to Respondent’s arguments regarding
the Board’s Prior Order, the Board merely found that the Morehouse defense was
sufficiently pled, not that it was proven. Moreover, to the extent the prior order
suggests that substantial similarity between a defendant’s prior registration and a
plaintiff’s asserted services makes out a Morehouse defense, it is incorrect. The
question to be answered in determining the applicability of a Morehouse defense is
the level of similarity between the defendant’s prior registration(s) and defendant’s
current applications(s) or registration(s).
Attached to Respondent’s motion is the declaration of Kathleen Hemmerdinger,
a legal assistant with Respondent’s counsel, introducing a status and title copy of
Respondent’s Registration No. 3206120 for the mark MONEY MART in standard
character form for, “loan financing” in Class 36. As such, the registration is of record
for purposes of summary judgment. See TBMP § 528.05(d) (defendant’s registration
may be made of record by filing status and title copy or current printout from USPTO
electronic database showing status and title on summary judgment). Cf. Trademark
Rules 2.122(d)(1) and (2).
In support of its position that “loan financing” and “pawn brokerage and pawn
shops” are substantially identical, Respondent relies on statements made by Chris
Upton, Petitioner’s President and co-owner, in his discovery deposition that he would
define pawn brokerage services as a “collateralized loan, short-term loan,” and pawn

10 See 30 TTABVUE 10.
Cancellation No. 92060888

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store services as “the same.”11 Also Larry Nuchols, Petitioner’s Vice President and
Secretary, described pawn brokerage and pawn store services as, “collateral lending,
loans on tangible merchandise to the public” and agreed to the description “short-
term loans.”12 In addition, Respondent provided: 1) dictionary definitions of “pawn
broker” and “pawn” defining the words respectively as a “lender” and “to pledge an
item of personal property as security for a loan;”13 and 2) Petitioner’s website which
states Petitioner “offers quick cash loans” at its pawn stores.14
Respondent provides the discovery deposition testimony of its corporate
representative Tim Hickey that loan financing services include pawn loans.15
Respondent also argues that although its later registrations include services other
than loan financing services, the only services Petitioner offers are pawn brokerage
and pawn shop services and Petitioner does not claim damage as to the other services
named in Respondent’s registrations.
Petitioner argues, however, that the Morehouse defense does not apply because
the services in the involved registrations are not the same or substantially similar to
the services identified in the prior registration, as “‘loan financing’ does not

11 43 TTABVUE at 158. Resp. motion for summary judgment Ex. G, Upton deposition at
14:12-25.

12 43 TTABVUE at 120. Resp. motion for summary judgment Ex. D, Nuchols deposition at
39:6-39:12.

13 43 TTABVUE at 72 and attached exhibits.

14 Id.

15 43 TTABVUE at 32. Resp. motion for summary judgment Ex. A, Hickey deposition at
20:2-8.
Cancellation No. 92060888

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acknowledge pawn brokerage or pawn shop services. … [n]amely, ‘loan financing’
does not acknowledge the exchange of collateral for sale with third-parties.”16
Moreover, Petitioner argues that the involved registrations also include other
services.
Upon review of the arguments and evidence we cannot conclude as a matter of
law that the services in Respondent’s prior registrations are “identical, substantially
the same, or so related so as to represent in law a distinction without a difference.”
Aquion Partners Ltd. P’ship v. Envirogard Prods. Ltd., 43 USPQ2d 1371, 1373 (TTAB
1997). Instead, we find that the Morehouse defense is not applicable in this case as
the services in the prior registration are not substantially the same as those in the
registrations at issue in this proceeding as the services include other services not
covered by the prior registration. See Mag Instr., Inc. v. Brinkmann Corp., 96
USPQ2d 1701, 1712 (TTAB 2010) (finding Morehouse defense inapplicable where
goods although similar represented different categories). If the identification of goods
or services in the new registration is broader than in the prior registration, even
though some goods or services are within the prior registration, the defense will not
apply. Bausch & Lomb Inc. v. Leupold & Stevens Inc., 1 USPQ2d 1497, 1500 (TTAB
1986) (Morehouse defense not applicable even though goods in application and prior
registration were, in part, identical, or otherwise closely related, because application
included goods different from goods listed in prior registration). See also TBC Corp.
v. Grand Prix Ltd., 12 USPQ2d 1311, 1314 (TTAB 1989). While the summary

16 47 TTABVUE 9.
Cancellation No. 92060888

10
judgment record does not remove a genuine dispute that the identification “loan
financing” identified in Respondent’s prior registration actually encompasses the
“pawn brokerage and pawn shop” services identified in the subject registrations, we
need not address that point.17 Here, the services in the new registrations are not
limited to pawn brokerage, but also include additional services such as “monetary
exchange services, namely, exchanging gold and silver of others for cash; issuing of
prepaid debit cards; issuing of prepaid gift cards; gift card transaction processing
services.” Respondent has not asserted, and we do not find, that these additional
services are encompassed within or are substantially identical to those in the prior
registration. Merely having overlap in the recitation of services of the prior
registration and the new registrations does not suffice for the Morehouse defense. See
Bausch & Lomb, 1 USPQ2d at 1500.
Respondent argues that Petitioner’s claim “that it will be damaged by the
continued registration of [Respondent’s] Registrations is limited to, and based solely
on, the fact that [Respondent’s] Registrations cover pawn brokerage and pawn shop
services.”18 However, the pleading includes the ESTTA cover sheet which lists all of

17 We note, however, that “loan financing” and “pawn shop services” are set out as separate
services in the Acceptable Identification of Goods and Services Manual. In addition,
Respondent’s registration history would suggest they are separate services and “pawn
brokerage” may not be contemplated as included in “loan financing” in the industry terms of
art.

18 49 TTABVUE 8.

Cancellation No. 92060888

11
the services in the subject registrations and the attached complaint does not exclude
any of Respondent’s services from the likelihood of confusion claim:19
¶ 9 Brittex’s first use of MONEY MART for pawn brokerage and pawn
shop services precedes the filing dates … and dates of first use for the
MONEY MART marks for any of the services that are the subject
of the ‘540 Registration and the ‘073 Registration;

¶ 10 Brittex alleges that there is a likelihood of confusion between
Brittex’s MONEY MART mark and Registrant’s MONEY MART marks
at least as used for pawn brokerage and pawn store services under
section 2(d);

¶ 11 Registrant is not lawfully entitled to the ‘540 and ‘073 Registrations
for pawn brokerage and pawn store services, or any other service,
because the service mark MONEY MART and MONY MART (and
design), as registered therein, so resemble …

¶ 12 Brittex avers that it has been and will be damaged …Maintenance
of said registrations on the Register will, at a minimum, purportedly
give Registrant the prima facie right to exclusive use of the MONEY
MART marks in commerce in connection with pawn brokerage and pawn
store services …

WHEREFORE, Petitioner prays that this Petition for Cancellation be
granted, and that Registration Nos. [4]524540 AND 4,532,073 be
cancelled.

The petition clearly seeks cancellation of the registrations in their entirety and
the claim of likelihood of confusion is not limited to Respondent’s “pawn brokerage
and pawn shop services.” Even if likelihood of confusion were only proven as to the
pawn-related services, that is of no moment, as it is sufficient for a finding of
likelihood of confusion if relatedness is established for any item encompassed by the
identification of services within a particular class in the application or registration

19 13 TTABVUE 4-5 and 8.
Cancellation No. 92060888

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that has been challenged. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
In view thereof, the Prior Order is vacated only so far as its allowance of
Respondent’s pleading of a Morehouse defense, and the defense is stricken from
Respondent’s second amended answer. Respondent’s motion for summary judgment
on its Morehouse defense is moot.
Priority
By its motion for partial summary judgment, Petitioner argues it can establish
priority if it can show common law use of its mark in connection with its alleged pawn
services prior to Respondent’s underlying filing dates for the applications for its two
involved registrations, or prior to the April 6, 2010 issuance date of Applicant’s first
pawn license. In its second amended answer, Respondent has asserted in its defenses
a priority date of 1984.20
To establish priority on a likelihood of confusion claim brought under Trademark
Act Section 2(d), a party must prove that, vis-à-vis the other party, it owns “a mark
or trade name previously used in the United States ... and not abandoned....”
Trademark Act § 2, 15 U.S.C. § 1052. Petitioner does not own an existing registration
upon which it can rely for purposes of priority. King Candy Co., Inc. v. Eunice King's
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Prior common law rights in a mark must be demonstrated by a preponderance of
the evidence showing use of the designation in connection with a product or service

20 31 TTABVUE 5.

Cancellation No. 92060888

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in commerce in a manner analogous to trademark use, such as advertising, use as a
tradename, or any other manner of public use. See Standard Knitting, Ltd. v. Toyota
Kaushiski Kaisha, 77 TTABVUE 1917, 1929 (TTAB 2006).
Petitioner claims a priority date of 1993. In order for Petitioner to prevail on
its priority claim, Petitioner must prove that it has a proprietary interest in the mark
MONEY MART and that the interest was obtained prior to any date of use on which
Respondent may rely, including any date Respondent may prove by relying on its
prior registrations or prior use. Cf. Productos Lacteos Tocumbo, S.A. de C.V. v.
Paleteria La Michoacana, Inc., 98 USPQ2d 1921, 1926 (TTAB 2011) (answer must be
sufficient to put plaintiff on notice that defendant will rely on prior registration).
Petitioner submitted documents in the form of assumed name certificates, pawn
licenses, a corporate federal tax return, proposals from vendors for signage, and
correspondence from an advertising consultant. None of the evidence provides any
concrete information about prior use of the mark such as sales or advertising
information. Petitioner’s evidence of use is the deposition testimony of its own owners
and employees.
Respondent provided the declaration of Nancy Fuschino, Director, Customer
Acquisition, as evidence that it began taking steps to offer pawn brokerage and pawn
store services by obtaining pawnbroker and dealer licenses in 2010 and has used the
mark MONEY MART for pawn store services since 2012.21 This date is obviously not
prior to Petitioner’s claimed date of first use for pawn services.

21 43 TABVUE at 102.

Cancellation No. 92060888

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Respondent argues that it owns a prior incontestable registration for the mark
MONEY MART in standard character form for, “loan financing” services and there
can be no genuine dispute of material fact that pawn shop services are encompassed
by or, if not encompassed, are, at least, within the natural zone of expansion for those
services. Meaning that the use of its trademark for one service may be expanded to
use with related services. Respondent asserts that its mark shown in the prior
standard character registration for MONEY MART encompasses both its standard
character registration and its illustration registration at issue in this proceding,
because a standard character mark must be considered substantially the same as the
new marks. And by his deposition, Respondent’s employee Tim Hickey testifies that
Respondent began using the mark MONEY MART for loan financing services in
1984.22
As discussed above, a genuine dispute remains as to whether loan financing
encompasses pawn-related services. The doctrine of natural expansion is normally
used in cases determining priority of use. General Mills, Inc. v. Fage Dairy Processing
Indus., S.A., 100 USPQ2d 1584, 1598 (TTAB 2011) judgment set aside on other
grounds, 110 USPQ2d 1679 (TTAB 2014). Under this doctrine, the first user of a mark
in connection with particular goods or services possesses superior rights in the mark
as against subsequent users of the same or similar mark for goods or services which
purchasers might reasonably expect to emanate from the normal expansion of

22 43 TTABVUE at 31.
Cancellation No. 92060888

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business under the mark. See Mason Eng’g and Design Corp. v. Mateson Chem. Corp.,
225 USPQ 956, 962 (TTAB 1985).
A review of Petitioner’s evidence and arguments shows that it does not attempt
to demonstrate any use prior to 1993 and that Petitioner believes it need only show
common law use prior to the April 6, 2010 date for which Respondent has shown use
with pawn services.
Upon careful consideration of the evidence and arguments submitted by the
parties, the Board finds that, at a minimum, there are genuine disputes of material
fact as to whether Petitioner can show priority of use either as to the filing date of
Respondent’s current or prior registrations or as to the earliest date upon which
Respondent has put Petitioner on notice that it is relying. Genuine disputes also
remain as to whether Respondent can show that pawn shop and pawn brokerage
services are encompassed by, or are a natural zone of expansion for, “loan financing”
services.
Accordingly, Petitioner’s motion for partial summary judgment on priority of
use is denied and Respondent’s motion for summary judgment on likelihood of
confusion is denied.
Fraud Claim
Petitioner’s fraud claim is predicated on Respondent’s signing of the
declaration supporting the underlying applications.23 Respondent asserts that the

23 Respondent argues that Petitioner’s concession of the non-use claim is also a concession of
fraud based on non-use, meaning the only remaining basis for the fraud claim is the
allegation that Petitioner had prior rights in the MONEY MART mark. The Board notes that
there is only one fraud claim concerning the two involved registrations; however, the
Cancellation No. 92060888

16
fraud claim must fail because Petitioner “is unable to show that it had prior rights in
the MONEY MART mark at the time the Declarations were signed.”24 Inasmuch as
priority remains in dispute, the fraud claim also remains in dispute. As to the
question of intent, the Board has often reiterated that fraud claims are particularly
unsuitable to disposition on summary judgment in view of the intent element and
that holds true here. Copelands' Ents., Inc. v. CNV, Inc., 945 F.2d 1563, 20 USPQ2d
1295, 1298-99 (Fed. Cir. 1991); Commodore Electrs. Ltd. v. CBM Kabushiki Kaisha,
26 USPQ2d 1503, 1507-08 (TTAB 1993). Genuine disputes remain as to the falsity of
the statement and Respondent’s intent.
The Board underscores that an applicant’s, or registrant’s, failure to disclose
to the USPTO the asserted rights of another entity is not fraudulent unless the
applicant or registrant knew the other entity possessed a superior or clearly
established right to use substantially the same mark for substantially identical goods
or services. See Intellimedia Sports, Inc. v. Intellimedia Corp., 43 USPQ2d 1203,
1206-07 (TTAB 1997).

allegations regarding non-use are no longer false in view of the concession and, as such, no
longer form any part of the basis for the fraud claim.

24 43 TTABVUE 19.

Cancellation No. 92060888

17
Decision
In view of the foregoing both Respondent’s motion for summary judgment and
Petitioner’s motion for partial summary judgment are denied.25 Petitioner’s claim of
nonuse is stricken. Respondent’s Morehouse defense is stricken.
As the motions for summary judgment considered here were submitted just
prior to the opening of trial, the parties may not submit any further motions for
summary judgment.
Schedule
Proceedings are resumed. Dates are reset as set out below.
Plaintiff's Pretrial Disclosures Due 2/5/2018
Plaintiff's 30-day Trial Period Ends 3/22/2018
Defendant's Pretrial Disclosures Due 4/6/2018
Defendant's 30-day Trial Period Ends 5/21/2018
Plaintiff's Rebuttal Disclosures Due 6/5/2018
Plaintiff's 15-day Rebuttal Period Ends 7/5/2018
Plaintiff's Opening Brief Due 9/3/2018
Defendant's Brief Due 10/3/2018
Plaintiff's Reply Brief Due 10/18/2018
Request for Oral Hearing (optional) Due 10/28/2018

25 The parties should note that the evidence submitted in connection with the motions for
summary judgment is of record only for consideration of those motions. To be considered at
final hearing, any such evidence must be properly introduced in evidence during the
appropriate trial period. See Land O’ Lakes Inc. v. Hugunin, 88 USPQ2d 1957, 1960 n.7
(TTAB 2008); University Games Corp. v. 20Q.net Inc., 87 USPQ2d 1465, 1468 n.4 (TTAB
2008); Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB
1993)(declaration of witness submitted in connection with summary judgment motion was
part of record for trial where witness identified and attested to accuracy of it during
applicant’s testimony period). Furthermore, the fact that we have identified certain genuine
disputes of material fact sufficient to deny the motions should not be construed as a finding
that these are necessarily the only issues which remain for trial.

Cancellation No. 92060888

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Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony
is taken and introduced out of the presence of the Board during the assigned
testimony periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
manner and timing of taking testimony, matters in evidence, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
final hearing will be scheduled only upon the timely submission of a separate notice
as allowed by Trademark Rule 2.129(a).