Cabot Company Limited d/b/a Cabot Watch Companyv.Combat Watch Company, LLC

Trademark Trial and Appeal Board

Jul 12, 2013

No. 92053554 (T.T.A.B. Jul. 12, 2013)

Baxley Mailed: July 12, 2013

Cancellation No. 92053554

Cabot Company Limited d/b/a
Cabot Watch Company

v.

Combat Watch Company, LLC

Before Holtzman, Wellington, and Kuczma,
Administrative Trademark Judges.

By the Board:

Combat Watch Company, LLC (“respondent”) registered
the mark CWC in standard character form for “[c]locks and
watches; [w]atch straps; [w]atches and clocks” in
International Class 14.1
Cabot Watch Company (a d/b/a for Cabot Company Limited
and hereinafter “petitioner”) filed a petition to cancel
respondent’s registration on the ground of likelihood of
confusion with its mark CWC for watch straps, watch cases,
and watch covers; watches, which it claims to have used in
commerce since at least as early as 1997. Petitioner
alleges that, on November 8, 2010, it filed application

1 Registration No. 3814227, issued July 6, 2010, and alleging
January 19, 2008 as the date of first use anywhere and date of
first use in commerce.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
Cancellation No. 92053554

2
Serial No. 85193341, for the mark CWC for watch straps,
watch cases, and watch covers; watches, based on such use;
that, on November 19, 2009, respondent, filed application
Serial No. 77876646, which matured into the involved
registration; that, because respondent made no use of the
involved CWC mark prior to the alleged date of first use
set forth in the registration therefor, petitioner has
priority; and that the marks are identical and are used on
the same goods.
Respondent, by its answer, is deemed to have admitted
that petitioner has priority of use and that petitioner
filed the application identified in the petition.2 The
remaining salient allegations have been denied.
On March 23, 2012, petitioner filed a motion for leave
to file an amended petition to cancel wherein it corrects
its identification to “Cabot Company Limited,” explaining
that Cabot Watch Company is a name under which it does

2 See Board order dated July 20, 2011. Respondent did not
request reconsideration of that order and did not seek to amend
its answer. Under the law of the case doctrine, we do not
revisit our conclusion. See Threshold.TV Inc. v. Metronome
Enterprises Inc., 96 USPQ2d 1031 (TTAB 2010). Such doctrine
holds that the Board generally does not reopen issues decided in
earlier stages of the same litigation. Agostini v. Felton, 521
U.S. 203, 236 (1997). The doctrine does not apply unless the
Board is “convinced that [its prior decision] is clearly
erroneous and would work a manifest injustice.” Arizona v.
California, 460 U.S. 605, 618, n. 8 (1983). Respondent has not
persuaded us that there is an error in our prior decision.

Cancellation No. 92053554

3
business. In an April 12, 2012 order, the Board determined
that “petitioner ha[d] not shown to the Board's
satisfaction that it is not seeking to amend the petition
to cancel to name a different existing legal entity as
petitioner”3 and therefore denied that motion without
prejudice, but allowed petitioner time in which to file a
renewed motion.
On May 11, 2012, petitioner filed a renewed motion for
leave to file an amended petition to cancel in which it
corrected petitioner’s name, which the Board granted in a
September 18, 2012 order.4 Because the amended petition to

3 The Board noted that the WHOIS search result that respondent
submitted in opposition to the such motion indicates that Cabot
Watch Company Ltd., a UK limited company, rather than Cabot
Company Limited, registered the domain names
www.cabotwatchcompany.com and www.cabotwatchcompany.co.uk on
August 23, 2010, prior to the filing of the petition to cancel.

4 On September 21 and 24, 2012, respondent filed petitions to
disqualify petitioner’s attorneys, based on petitioner’s apparent
willingness to spend more to prosecute this case than it would
cost to settle this case by purchasing the involved registration
in accordance with respondent’s most recent settlement offer. In
an October 4, 2012 order, the Board declined to consider the
petitions to disqualify.
In a December 5, 2012 order, the Board denied respondent’s
motion to compel in view of respondent’s failure to serve initial
disclosures and stated that “respondent’s responses to the
discovery requests that petitioner served on September 19, 2011
are long past due.” The Board further stated that, in view of
respondent’s repeated improper filings, “unless respondent first
obtains leave of the Board to file a motion in a telephone
conference between the Board attorney assigned to this case,
respondent’s principal, and petitioner’s attorney, the Board, in
exercising its inherent authority to manage cases on its
docket, will not consider any further unconsented motions
from respondent other than motions to extend.”
Cancellation No. 92053554

4
cancel was otherwise identical to the original amended
petition to cancel, the Board stated in that order that it
would treat the answer to the original petition to cancel
as being responsive to the amended petition to cancel.
This case now comes up for consideration of: (1)
petitioner’s motion (filed April 26, 2013) for summary
judgment on its pleaded Section 2(d) claim;5 and (2)
respondent’s cross-motion (filed May 9, 2013) to dismiss
under the Board’s inherent authority based on petitioner’s
repeated references to itself and its sole owner/parent
company Silverman’s Limited (“Silverman’s”) collectively as
“petitioner” throughout its brief in support of the motion
for summary judgment, which was incorporated into its brief
in response to the motion for summary judgment.6
In support of its motion for summary judgment,
petitioner contends that entry of summary judgment is
warranted because it has standing based on its ownership of
the CWC mark and because the marks, goods, trade channels,
and target consumers are all identical; that there has been
“actual confusion and evident bad faith;” and that

5 In such motion, petitioner asked that the motion be decided on
an expedited basis.

6 On April 30, 2013, respondent filed a “request for directions,”
which it withdrew in its May 9, 2013 submission.
Cancellation No. 92053554

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petitioner has prior rights in the involved mark that
respondent effectively conceded in its answer.
Petitioner’s evidence in support of its motion
includes a declaration of petitioner’s attorney, Michael
Chiapetta, which introduces: (a) copies of respondent’s
responses to petitioner’s discovery requests; and (b) an
excerpt from Z.M. Wesolowski, A Concise Guide to Military
Timepieces 1880-1990 (1996), which refers to petitioner’s
CWC watches. Petitioner also submitted a declaration of
petitioner’s director and company secretary, Richard Bliss.
Evidence introduced through Mr. Bliss’ declaration
includes: (a) documents which show the transfer of “all
shares” of petitioner to Silverman’s; (b) excerpts from
petitioner’s website which feature CWC watches; (c)
petitioner’s business records showing sales of CWC watches
in the United States from 1997 through 2012; (d) sample
invoices of sales to United States customers; (e)
advertisements for CWC watches which appeared in Soldier of
Fortune magazine; (f) excerpts from Silverman’s catalogs
from 1998 through 2005 which show CWC watches offered for
sale; (g) petitioner’s November 24, 2010 cease and desist
letter to respondent; (h) respondent’s December 9, 2012
cease and desist letter to petitioner; and (i) respondent’s
March 18, 2013 letter to petitioner stating that respondent
Cancellation No. 92053554

6
has recorded its involved registration with United States
Customs.
In response to the summary judgment motion and in
support of its motion to dismiss, respondent contends that
the motion for summary judgment is not properly before the
Board because petitioner served “materially defective”
initial disclosures in which petitioner refers to itself as
both “[p]etitioner” and “[r]egistrant;” that petitioner, in
the brief in support of the motion for summary judgment
refers to itself and its distributor/owner Silverman’s as
“petitioner” and, in doing so, improperly redefines itself
“as a consortium of two separate legal entities;” that
petitioner’s responses to interrogatories are “misleading
and untrue” because petitioner is relying upon sales by
Silverman’s without expressly saying so in those responses;
that Silverman’s, and not petitioner, sells petitioner’s
pleaded CWC watches; that respondent “refutes all claims
and concedes nothing to date as it has been purposely
misled and deceived by” petitioner; that petitioner
concedes that it is a British company with no United States
presence; that petitioner only sells watches to
Silverman’s, which has no overseas presence and/or agents;
that petitioner concedes that it has no direct trading
relationship with customers or retailers in the United
Cancellation No. 92053554

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States; that petitioner cannot successfully petition to
cancel respondent’s involved registration without joinder
of Silverman’s; that the Bliss declaration, upon which
petitioner relies in support of its motion, is actually
petitioner’s expert disclosure, which petitioner failed to
serve in a timely manner; that, although petitioner claims
that the ovular design in its mark is inconsequential to
the commercial impression of its pleaded mark, respondent
understands that petitioner asserted trademark rights in
that design in a dispute concerning Military Watch Company
over the MWC mark with ovular design; and that a third
party, Richemont International S.A., opposed registration
of petitioner’s mark in the European Trademark Office.
Accordingly, respondent asks that the Board deny the motion
for summary judgment and grant its motion to dismiss under
the Board’s inherent authority.
Respondent’s evidence submitted with its brief
includes: (a) excerpts of communications between the
parties regarding petitioner’s initial disclosures; (b)
copies of petitioner’s initial disclosures; (c) excerpts
from various Silverman’s websites; and (d) copies of
petitioner’s responses to respondent’s discovery requests.
In reply, petitioner contends that respondent has
raised a series of baseless procedural arguments, has
Cancellation No. 92053554

8
failed to address petitioner’s proof of ownership of prior
rights in the CWC mark, and has only minimally addressed
the likelihood of confusion factors in its brief. In
particular, petitioner asserts that it served its initial
disclosures twice and that any reference to itself as both
“[r]egistrant” and “[p]etitioner” is an innocuous drafting
error; that Silverman’s, as petitioner’s sole owner, parent
company, and exclusive distributor, is not, and need not
be, a party to this case; that petitioner can rely upon
Silverman’s use of the mark as a related company; and that
Mr. Bliss is a fact witness and not an expert witness.
As an initial matter, the record herein indicates that
petitioner served its initial disclosures twice, on
September 11, 2011, prior to amending the caption of this
proceeding, and again on December 21, 2012, after so
amending.7 Although petitioner incorrectly refers to itself

7 Under Fed. R. Civ. P. 26(a)(1)(A)(i) and (ii) and Trademark
Rule 2.120(a)(3), each party must provide as initial disclosures
to its adversary prior to serving discovery requests or filing a
motion for summary judgment (except on limited bases not at issue
herein),
(i) the name and, if known, the address and telephone
number of each individual likely to have discoverable
information—along with the subjects of that
information—that the disclosing party may use to
support its claims or defenses, unless the use would
be solely for impeachment; [and]
(ii) a copy—or a description by category and location—
of all documents, electronically stored information,
and tangible things that the disclosing party has in
its possession, custody, or control and may use to
Cancellation No. 92053554

9
as “[r]egistrant” in both sets of initial disclosures,8
those initial disclosures leave no doubt that, as used in
those initial disclosures, petitioner refers only to
itself.9 Accordingly, the motion for summary judgment was
properly filed.
We turn next to respondent’s motion to dismiss based
on the Board’s “inherent authority.” In particular,
respondent contends that petitioner is improperly
attempting to join Silverman’s as a party to this
proceeding and that this warrants dismissal of the petition
to cancel under the Board’s inherent authority.

support its claims or defenses, unless the use would
be solely for impeachment.
In petitioner’s original and amended initial disclosures,
petitioner identifies as individuals believed to have
discoverable information to support its claims: “Cabot
Watch Company ... and any officers, employees and/or agents
of [petitioner, and] ... Richard Bliss, Director.”
Petitioner’s identification of itself and “any officers,
employees and/or agents thereof” is insufficient because it
does not identify any individuals by name and instead
appears merely to account for any possible deposition of
petitioner under Fed. R. Civ. P. 30(b)(6). However,
petitioner’s identification of Mr. Bliss, the sole employee
of petitioner upon which petitioner relies in support of
its motion for summary judgment is sufficient.

8 The better practice would have been to serve corrected initial
disclosures upon being made aware of the misidentification of
petitioner as “[r]egistrant.”

9 If respondent believed that, because petitioner referred to
itself in those initial disclosures as “registrant,” those
initial disclosures were inadequate, its remedy was to file a
motion to compel initial disclosures prior to the close of the
discovery period. See Trademark Rule 2.120(e)(1). However,
because the discovery period in this case has closed,
respondent’s time in which to file such a motion has lapsed.

Cancellation No. 92053554

10
Respondent points to the following statement in
petitioner’s brief: “(Given the collaborative effort of
[p]etitioner, owner of the CWC brand, and Silverman’s,
[p]etitioner’s exclusive distributor of CWC watches to
consumers and retailers, for ease of reference,
[p]etitioner and Silverman’s hereinafter shall be referred
to collectively as ‘[p]etitioner.’)” Brief in support of
motion for summary judgment at 8.
Respondent’s motion will be treated as one to dismiss
under the Board’s inherent authority to sanctions. The
Board may dismiss proceedings under its inherent authority
to sanction “where the conduct in question does not fall
within the reach of other sanctioning provisions of” the
Trademark Rules of Practice and the Federal Rules of Civil
Procedure. TBMP Section 527.03.
We reject respondent’s assertions that petitioner is
somehow seeking to join Silverman’s as a party plaintiff
herein, and that petitioner cannot prevail in this case
because Silverman’s is a necessary party to this
proceeding. The record herein indicates that use of the
CWC mark by Silverman’s, as parent company/sole owner of
petitioner and exclusive distributor of petitioner’s CWC
watches, was with the express consent and authorization of
Cancellation No. 92053554

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petitioner. See Bliss declaration at paragraphs 3 and 5.10
Petitioner is merely seeking to rely upon use by
Silverman’s as a related company under Trademark Act
Section 5, 15 U.S.C. § 1055. See TMEP Section 1201.03(c)
(April 2013) (“Related-company use includes situations
where a wholly owned related company of the applicant uses
the mark, or where the applicant is wholly owned by a
related company that uses the mark.”).
Based on the foregoing, we find that petitioner’s
reference to itself and Silverman’s collectively as
“petitioner” does not warrant dismissal of the petition to
cancel under the Board’s inherent authority to sanction or
any applicable rule regarding entry of sanctions.
Respondent’s motion to dismiss based on the Board’s
inherent authority is therefore denied.
We now turn to the motion for summary judgment. Such
a motion is an appropriate method of disposing of cases in
which there are no genuine disputes as to any material
facts, thus leaving the case to be resolved as a matter of
law. See Fed. R. Civ. P. 56(c). The party moving for
summary judgment has the initial burden of demonstrating
that there is no genuine issue of material fact remaining

10 Respondent’s assertion that Mr. Bliss is an undisclosed expert
witness is not well-taken. Mr. Bliss is a fact witness, who was
named in petitioner’s initial disclosures.

Cancellation No. 92053554

12
for trial and that it is entitled to judgment as a matter
of law. See Celotex Corp. v. Catrett, 477 U.S. 317 (1987);
Sweats Fashions Inc. v. Pannill Knitting Co. Inc., 833 F.2d
1560, 4 USPQ2d 1793 (Fed. Cir. 1987). The nonmoving party
must be given the benefit of all reasonable doubt as to
whether genuine issues of material fact exist, and the
evidentiary record on summary judgment, and all inferences
to be drawn from the undisputed facts, must be viewed in
the light most favorable to the nonmoving party. See
Opryland USA, Inc. v. Great American Music Show, Inc., 970
F. 2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992).
When the moving party's motion is supported by
evidence sufficient to indicate that there is no genuine
issue of material fact, and that the moving party is
entitled to judgment, the burden shifts to the nonmoving
party to demonstrate the existence of specific genuinely-
disputed facts that must be resolved at trial. The
nonmoving party may not rest on the mere allegations of its
pleadings and assertions of counsel, but must designate
specific portions of the record or produce additional
evidence showing the existence of a genuine issue of
material fact for trial. In general, to establish the
existence of disputed facts requiring trial, the nonmoving
party "must point to an evidentiary conflict created on the
Cancellation No. 92053554

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record at least by a counterstatement of facts set forth in
detail in an affidavit by a knowledgeable affiant."
Octocom Systems Inc. v. Houston Computers Services Inc.,
918 F.2d 937, 941, 16 USPQ2d 1783, 1786 (Fed. Cir. 1990).
As a party moving for summary judgment in its favor on
its Section 2(d) claim, petitioner must establish that
there is no genuine dispute that (1) it has standing to
maintain this proceeding; (2) that it is the prior user of
its pleaded mark; and (3) that contemporaneous use of the
parties' respective marks on their respective goods would
be likely to cause confusion, mistake or to deceive
consumers. See Hornblower & Weeks, Inc. v. Hornblower &
Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001). If the
nonmoving party fails to make a sufficient showing on an
essential element of its case with respect to which it
would have the burden of proof at trial, judgment as a
matter of law may be entered in favor of the moving party.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. at 322-23.
With regard to whether petitioner has standing to
maintain this proceeding, we find that petitioner has
established its standing in this case based on: (1)
respondent’s deemed admission that petitioner, on December
8, 2010, filed pleaded application Serial No. 85193141 for
Cancellation No. 92053554

14
the same mark for some of the same goods; (2) statements in
the Bliss declaration regarding petitioner’s manufacture
and supplying of CWC watches commencing in 1972; (3)
evidence of use of the CWC mark on watches sold in the
United States through its owner/exclusive distributor
Silverman’s between 1997 and 2012, prior to any date upon
which respondent can rely in support of the use of the mark
in its involved registration; (4) the December 9, 2012
cease and desist letter from respondent to petitioner; and
(5) the March 18, 2013 letter from respondent to petitioner
in which respondent threatened to seek seizure of any
imports of petitioner’s CWC watches into the United
States.11 No genuine dispute as to any material fact exists
on this issue.
We turn next to the issue of whether there is a
genuine issue of material fact regarding petitioner's
asserted priority of use. To establish priority on a
likelihood of confusion ground brought under Trademark Act
Section 2(d), a party must prove that, vis-a-vis the other
party, it owns "a mark or trade name previously used in the

11 Although petitioner alleges in its brief that it has standing
based on the refusal of its pleaded application under Trademark
Act Section 2(d) based on respondent’s involved registration,
petitioner did not file a copy of the Office Action in which its
pleaded application was so refused. Therefore, the refusal of
registration of the pleaded application does not provide a basis
for standing in connection with this motion.
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Cancellation No. 92053554

16
petitioner has established, through the declaration of Mr.
Bliss, that, it has manufactured watches under the CWC mark
since 1972; that Silverman’s has been its exclusive
distributor since the late 1980’s; that, through
Silverman’s, it made its first use of the CWC mark on
watches in the United States in 1997; and that Silverman’s
continuously sold watches under the CWC mark through
December 2012. Mr. Bliss’s declaration is internally
consistent and not characterized by uncertainty. See
Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., supra
at 1736. Further, the summary of sales under the CWC mark
that petitioner submitted with the Bliss declaration in
support of its motion for summary judgment indicates that
Silverman’s made regular, continuous sales of petitioner’s
watches under the CWC mark since 1997, prior to any date
upon which respondent relies in support of its involved
registration.
Even if we assume that petitioner has no United States
offices and only sells watches in the United States
indirectly through Silverman’s, these business conditions
do not create a genuine dispute as to whether petitioner
has prior use of the CWC mark in commerce on watches.
Trademark Act Section 45, 15 U.S.C. § 1127, states in
relevant part, as follows:
Cancellation No. 92053554

17
‘use in commerce’ means the bona fide use of a
mark in the ordinary course of trade, and not
made merely to reserve a right in a mark. ...
[A] mark shall be deemed to be in use in
commerce. ... on goods when ... it is placed
in any manner on the goods or their containers or
the displays associated therewith or on the tags
or labels affixed thereto, or if the nature of
the goods makes such placement impracticable,
then on documents associated with the goods or
their sale, and ... the goods are sold or
transported in commerce.

Trademark Act Section 5, 15 U.S.C. Section 1055, states as
follows:
Where a registered mark or a mark sought to be
registered is or may be used legitimately by
related companies, such use shall inure to the
benefit of the registrant or applicant for
registration, and such use shall not affect the
validity of such mark or of its registration,
provided such mark is not used in such manner as
to deceive the public. If first use of a mark by
a person is controlled by the registrant or
applicant for registration of the mark with
respect to the nature and quality of the goods or
services, such first use shall inure to the
benefit of the registrant or applicant, as the
case may be.

The term “related company” means any person whose use of a
mark is controlled by the owner of the mark with respect to
the nature and quality of the goods or services on or in
connection with which the mark is used. “The essence of
'related company' is the control of the nature and quality
of the goods and this is the basis for allowing [a party]
to claim ownership of a mark based on the use by a related
company.” In re Pharmacia Inc., 2 USPQ2d 1883, 1884 (TTAB
Cancellation No. 92053554

18
1987). “[Y]ears of precedent make it very clear that
proper use of a mark by a trademark owner's ... related
company constitutes ‘use’ of that mark attributable to the
trademark owner.” Quality Candy Shoppes/Buddy Squirrel of
Wisconsin Inc. v. Grande Foods, 90 USPQ2d 1389, 1392 (TTAB
2007). Cf. TMEP Section 1201.03(c) (“Related-company use
includes situations where a wholly owned related company of
the applicant uses the mark, or where the applicant is
wholly owned by a related company that uses the mark.”).
Petitioner has manufactured watches sold under the CWC
mark since 1972 in “compli[ance] with established British
Ministry of Defence watch standards,” long prior to the
commencement of its relationship with Silverman’s, with
“any and all goodwill will that developed as a result of
Silverman’s use of the CWC trademark [on watches] inur[ing]
to the benefit of petitioner.” Bliss declaration,
paragraphs 2 and 5. Thus, petitioner controls the nature
and quality of such watches, and is therefore the owner of
the mark. See Trademark Act Section 5; see also, TMEP
Section 1201.03(c). Accordingly, petitioner may rely upon
sales of CWC watches by petitioner's owner andexclusive
distributor, Silverman’s, to establish priority herein.12

12 Although it may have been preferable for Silverman’s to be a
co-petitioner, it is not necessary that Silverman’s be a party
Cancellation No. 92053554

19
Turning to the likelihood of confusion issue, two key
factors are the degree of similarity of the parties' marks
and the degree of similarity of their respective goods.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). As to the letter
marks at issue, the parties’ CWC marks are extremely
similar. Although petitioner uses an ovular design around
the letters CWC on its watches, that design element in the
mark is insufficient to create a genuine issue of material
fact as to the similarities of the marks. See Herbko
International, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64
USPQ2d 1375 (Fed. Cir. 2002) (words are dominant portion of
mark); Ceccato v. Manifatura Lane Gaetano Marzetto & Figli
S.p.A., 32 USPQ2d 1192 (TTAB 1994) (literal portion of mark
makes greater and long lasting impression). The fact that
respondent’s mark is presented in standard character form
does not avoid likelihood of confusion with petitioner’s
CWC and design mark because respondent’s mark could be
presented in the same manner of display. See In re Mighty
Tea Leaf, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir.
2010); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937,
939 (Fed. Cir. 1983) (the argument concerning a difference

plaintiff to this proceeding for petitioner to prevail in this
case.
Cancellation No. 92053554

20
in type style is not viable where one party asserts rights
in no particular display).
With regard to the similarity of the goods at issue,
it is well settled that the question of likelihood of
confusion must be determined based on an analysis of the
goods recited in respondent's registration vis-à-vis the
goods shown to be in use by petitioner, rather than what
respondent's goods are asserted or shown to actually be.
See, e.g., Octocom Systems, 16 USPQ2d at 1787; Canadian
Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). The goods
identified in respondent’s involved registration, i.e.,
"[c]locks and watches; [w]atch straps; [w]atches and
clocks," overlap with petitioner's goods which, as shown by
the evidence, are "watches."13 As such, respondent's goods
are presumed to travel in all the normal channels of trade
for goods of these types, including eBay and Amazon.com,
and would be purchased by the same class of customers. See
id.
Based on the foregoing, we find that petitioner has
met its burden by supporting its motion with the Bliss

13 Even if we assume that petitioner does not use the pleaded CWC
mark on clocks, 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. See Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981).
Cancellation No. 92053554

21
declaration and other evidence which establishes its right
to judgment. Accordingly, the burden shifts to respondent
to proffer countering evidence which establishes that there
is a genuine factual dispute for trial. However, the
evidence that respondent submitted in support of its cross-
motion and in response to petitioner's motion is
insufficient to show that there is a genuine issue of
material fact for trial. In summary, considering the
extremely similar marks and the overlapping nature of the
goods, trade channels and purchasers, we find that there is
no genuine dispute that confusion is likely to result.
In view thereof, petitioner’s motion for summary
judgment is granted. The petition to cancel is granted,
and Registration No. 3814227 will be cancelled in due
course.