Dark Storm Industries, LLCv.Hurricane Butterfly Manufacturing, LLC

Trademark Trial and Appeal Board

May 1, 2020

91239079 (T.T.A.B. May. 1, 2020)

Mailed: May 1, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
Dark Storm Industries, LLC

v.

Hurricane Butterfly Manufacturing, LLC
___

Opposition No. 91239079
___

James J. Lillie, Lillie Law, LLC
for Dark Storm Industries LLC.

Eric G. Maurer of Thomas│Horstemeyer, LLP
for Hurricane Butterfly Manufacturing, LLC.
______
Before Taylor, Adlin and Goodman,
Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Applicant Hurricane Butterfly Manufacturing, LLC seeks registration of the mark
TYPHOON, in standard characters, for “shotguns and parts thereof.”1 In its notice of
opposition, Opposer Dark Storm Industries, LLC alleges prior use of, and ownership
of an application to register, the identical mark (TYPHOON in standard characters)

1 Application Serial No. 87283973, filed December 29, 2016 under Section 1(a) of the
Trademark Act, alleging first use on February 1, 2013 and first use in commerce on October
1, 2013.
This Opinion is not a
Precedent of the TTAB
Opposition No. 91239079
2
for “firearms; rifles.”2 As grounds for opposition, Opposer alleges that use of
Applicant’s mark is likely to cause confusion with, and dilute, Opposer’s mark, and
that the application is void because Applicant did not use its mark prior to filing its
use-based application.3 In its answer, Applicant denies the salient allegations in the
notice of opposition, and asserts “affirmative defenses” which merely amplify its
denials.4
I. The Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
the file of Applicant’s involved application. In addition, Opposer introduced:
Testimony Deposition of Brett Snider, one of its employees
who works in outside sales and marketing, and the exhibits
thereto. 9 TTABVUE.5

Testimony Deposition of Edward J. Newman, one of its
founders/owners, and the exhibits thereto. 10 TTABVUE.

2 Application Serial No. 87593126, filed September 1, 2017 under Section 1(a) of the
Trademark Act, based on first use dates of November 21, 2014.
3 Opposer also alleges fraud based on mere “information and belief.” This fails to sufficiently
plead the claim, because Opposer failed to allege facts upon which its belief is based. Exergen
Corp. v. Wal-Mart Stores Inc., 575 F.3d 1312, 91 USPQ2d 1656, 1670 (Fed. Cir. 2009); Asian
and Western Classics B.V. v. Selkow, 92 USPQ2d 1478, 1479 (TTAB 2009). Moreover, Opposer
does not allege that Applicant had a subjective intent to deceive the Office, alleging instead
only that “[a]bsent evidence to the contrary, it would be reasonable if not compelling to
conclude the requisite intent.” In any event, Opposer did not pursue the claim, which is
therefore waived. See Swatch AG (Swatch SA) (Swatch Ltd.) v. M.Z. Berger & Co., 108
USPQ2d 1463, 1465 n.3 (TTAB 2013), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir.
2015).
4 Applicant’s assertion that the notice of opposition fails to state a claim for relief is not an
affirmative defense, but rather an allegation that Opposer’s pleading is defective. In any
event, Applicant did not file a motion to dismiss on that basis.
5 Citations to the record reference TTABVUE, the Board’s online docketing system. The
number preceding “TTABVUE” corresponds to the docket entry number(s), and any
number(s) following “TTABVUE” refer to the page number(s) of the docket entry where the
cited materials appear.
Opposition No. 91239079
3

Testimony Deposition of Peter Morrisey, its other
founder/owner, and the exhibits thereto. 11 TTABVUE.

Applicant introduced:

Testimony Deposition of Jason M. Wong, its principal and
general counsel, and the exhibits thereto. 22 TTABVUE.

II. Relevant Facts
Each party claims that it was the first to use TYPHOON for firearms in the United
States. Opposer relies on evidence of traditional sales, while Applicant argues that
the activities it undertook before its first sale of a TYPHOON shotgun establish prior
rights in the mark.
A. Opposer
Mr. Morrisey and Mr. Newman got their start in the firearms industry in 2012,
after working together for a security firm which “provided electronic and physical
security for large commercial government industrial clients.” 10 TTABVUE 6; 11
TTABVUE 18-24. At the time, they both already had an interest in guns, and they
found that the demand for guns was increasing following Hurricane Sandy hitting
the New York area, where they both lived. Later in 2012, demand for firearms
increased even further due to the fear of increased gun regulation which took hold in
the wake of the Sandy Hook mass shooting. 11 TTABVUE at 24-25; 10 TTABVUE 10-
15. Initially, Morrisey and Newman focused on selling gun parts rather than
manufacturing firearms. 11 TTABVUE 25-27; 10 TTABVUE 15-16, 20.
In early 2013, Morrisey and Newman formed Opposer and acquired space for their
store later that year. 11 TTABVUE 28-29; 10 TTABVUE 18-19. By early 2014,
Opposition No. 91239079
4
Opposer moved into the space and was assembling and selling guns from parts
manufactured by others. 11 TTABVUE 29-30, 34; 10 TTABVUE 23-25. Later that
year, Opposer began “manufacturing” guns itself. 10 TTABVUE 27-28, 32.
Opposer chose the mark TYPHOON for one of its “manufactured” guns as a play
on its corporate name Dark Storm Industries:
At that point now we are in probably spring 2013. The idea
came up to start to build on the storm part of the name and
the first two model names we came up with were lighting
and thunder building off of that Dark Storm. At that point
we then started looking for what other names fit into this
and using the weather terminology as the part of the
brand. The next two that came up was hurricane and
typhoon for the models of rifles we were planning at that
point.

10 TTABVUE 22. Opposer’s TYPHOON model “went into production in late summer,
early fall 2014. I believe the press release, grand announcement so to speak was late
fall 2014.” Id. at 33.
Opposer did not introduce evidence showing a specific sale of a TYPHOON-
branded gun on any particular date, such as an invoice or purchase order.
Nonetheless, Opposer submitted general testimony sufficient to satisfy us that at
some point between the “press release, grand announcement” of its TYPHOON model
guns, and the filing of Applicant’s involved application in December 2016, Opposer
sold TYPHOON-branded guns in the United States. 10 TTABVUE 43-44 (agreeing
that Opposer “has used its trademarks including Typhoon … well before December
29, 2016 …”); see also id. at 25, 33, 39-41. Applicant does not argue to the contrary.
See 29 TTABVUE 6.
Opposition No. 91239079
5
B. Applicant
Applicant imports and exports firearms. Before “taking over” Applicant, Mr. Wong
“practiced law for the firearms industry doing regulatory work.” 22 TTABVUE 9-12.
In connection with that work, he became familiar with Qiqihar Hawk, a Chinese
firearms manufacturer, and one of its shotguns which Mr. Wong believed would sell
well in the United States. Id. at 13. Beginning in February 2013, through Mr. Wong’s
connections, Applicant started negotiating with Qiqihar Hawk, and eventually
Qiqihar Hawk manufactured a modified version of the shotgun Mr. Wong was
interested in as a prototype. Applicant Hurricane Butterfly named the shotgun
TYPHOON because the word means a hurricane originating in the South Pacific, and
the shotgun comes from China. Id. at 13-15.
Before it could import the TYPHOON shotgun for sale in the United States,
Applicant had to comply with regulatory requirements:
The Typhoon was an imported shotgun, and as a result
certain regulatory processes had to be completed to get the
shotgun into the U.S. We had to apply for an ATF6 Form 6,
which is an import permit. Because the Typhoon had not
been examined by the ATF Firearms Technology and
Industry Services branch, ATF would not allow me to
import a large quantity of them for sale. ATF wanted to
examine the shotgun to determine whether or not it was
suitable for importation. I submitted an import permit
requesting a single unit for that examination process, and
ATF approved the import permit.

6 ATF is an acronym for the U.S. Department of Justice’s Bureau of Alcohol, Tobacco,
Firearms and Explosives.
Opposition No. 91239079
6
Id. at 17. More specifically, Applicant first had to submit the gun’s receiver7 for ATF
inspection. Applicant’s ATF Form 6 submission for the receiver, which is dated June
27, 2013 and indicates that it is for a “provisional import for examination by ATF
Firearms Technology Branch” is reproduced below on the left, and the ATF’s October
1, 2013 approval of the application is reproduced below on the right:

Id. at 18-19, 100, 114.
After ATF approved the import permit for the receiver to be inspected, and
approved the receiver following inspection, the next step was for Applicant to submit
the complete shotgun for ATF approval. Id. at 20. ATF approved Applicant’s sending

7 The receiver on a firearm is analogous to the chassis on a car, as it serves as housing for
many of a gun’s components.
Opposition No. 91239079
7
of the firearm directly to ATF for inspection. Id. at 43. Applicant’s ATF Form 6
submission for the complete shotgun, which is dated February 13, 2014, indicates
that it is for an “examination by ATF Firearms Technology Branch,” and was
approved on April 29, 2014. It is reproduced below:

Id. at 21-22, 117.
The approved complete shotgun arrived in the United States on November 29,
2014. Id. at 24. ATF ultimately found the complete shotgun “generally recognized as
Opposition No. 91239079
8
particularly suitable for or readily adaptable to sporting purposes” and “importable
into the United States” on October 19, 2015. Id. at 26-27; 32 TTABVUE 2-5.
Next, in December 2015, Mr. Wong “took the shotgun with me to a trade show in
Phoenix. I showed it to a couple of individuals within the firearms industry. I asked
them how they might improve upon the design or what changes they might make?”
Id. at 27. Mr. Wong clarified that the shotgun he brought to the trade show was the
same one ATF inspected, as “it was the only Typhoon we had in the country at that
time.” Id. at 28.
Around the same time Applicant “submitted a new import permit to import the
first 300 Typhoon shotguns into the U.S.” Id. at 28. However, Mr. Wong testified that
Applicant
did not start our advertising campaign until the first 300
units had been received. There are many examples when,
within the firearm industry where a product will be
announced, there will be a huge buzz about it, but it never
hits the market. In some cases the product may hit the
market, but not for several or even many years after the
initial announcement. In my experience in the industry
that – in my experience announcing the product before it’s
ready for sale is a recipe for disaster … So we waited to
start our advertising campaign until the first 300 units
came… [in] late 2017.

Id. at 29-30. While originally indicating in his testimony that the 300 units arrived
in “late 2017,” Mr. Wong later stated that they arrived “I believe during 2016.” Id. at
52. In any event, Mr. Wong claimed that Applicant’s initial advertising for
TYPHOON shotguns may have been distributed shortly before it filed its involved
application in late 2016. Id. at 33-34.
Opposition No. 91239079
9
This is apparently consistent with documentary evidence showing that Appli-
cant’s TYPHOON shotgun was not shipped to dealers until January 2017:

10 TTABVUE 115. As Mr. Wong explained in connection with how long the
importation approval process typically takes, “[i]n the international sphere, at least
in terms of firearms, when you’re moving firearms internationally, nothing moves
quickly.” 22 TTABVUE 25; see also id. at 29-30 (“We created advertising, both print
and electronic. But we did not start our advertising campaign until the first 300 units
had been received.”). Ultimately, Mr. Wong could not remember when Applicant
made its first sale of a TYPHOON firearm in the United States. Id. at 54.
Opposition No. 91239079
10
Applicant alleged in the involved application that its date of first use in commerce
was October 1, 2013 because that is “the approved date for the original ATF Form 6
application for importation of firearms.” Id. at 32. However, Mr. Wong did not
remember when Applicant made its first sale of a TYPHOON-branded firearm. Id. at
54.
III. Standing
Opposer has established its use of the mark TYPHOON for firearms. 10
TTABVUE 43-44 (agreeing that Opposer “has used its trademarks including Typhoon
… well before December 29, 2016 …”); see also id. at 25, 33, 39-41. Thus, Opposer has
standing. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d
1058, 1062 (Fed. Cir. 2014); Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022
(TTAB 2009) (“Petitioner has established his common-law rights in the mark
DESIGNED2SELL, and has thereby established his standing to bring this
proceeding.”); Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1118
(TTAB 2009) (testimony that opposer uses its mark “is sufficient to support opposer’s
allegations of a reasonable belief that it would be damaged …” where opposer alleged
likelihood of confusion).
IV. Likelihood of Confusion
The parties are using the same mark for legally identical goods because Opposer’s
“firearms” encompass Applicant’s “shotguns.” There is therefore a likelihood of
confusion. Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d 1733,
1735 (TTAB 2001) (“Use of identical marks for virtually identical services would
create a likelihood of confusion.”). Applicant does not argue otherwise. 29 TTABVUE
Opposition No. 91239079
11
5 (“The only disputed issue for the Board to decide in ruling upon this pending
opposition matter is which party to the opposition has first use ….”) and 16.
V. Priority
Therefore, this case boils down to priority. Applicant is entitled to December 29,
2016, the filing date of its involved application, as its constructive priority date. Cent.
Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1140-41 (TTAB 2013) (“for
when an application or registration is of record, the party may rely on the filing date
of the application for registration, i.e., its constructive use date”); Syngenta, 90
USPQ2d at 1119 (“applicant may rely without further proof upon the filing date of its
application as a ‘constructive use’ date for purposes of priority”). Opposer has
established that it used its mark prior to that date. 10 TTABVUE 43-44 (agreeing
that Opposer “has used its trademarks including Typhoon … well before December
29, 2016 …”); see also id. at 25, 33, 39-41.
Applicant seeks to rely, however, on its importation of a single TYPHOON
receiver/shotgun into the United States for purposes of the ATF inspection to
establish its priority. Indeed, Applicant alleged in the involved application that its
claimed date of first use in commerce was October 1, 2013 because that is “the
approved date for the original ATF Form 6 application for importation of firearms.”
22 TTABVUE 32.
Applicant specifically argues that its efforts to comply with the ATF’s inspection
regime and regulatory prerequisites for importing and selling firearms in the United
States is analogous to efforts undertaken by pharmaceutical companies to comply
with United States pharmaceutical regulations. In the pharmaceutical context,
Opposition No. 91239079
12
efforts to obtain regulatory approval have in certain circumstances been considered
trademark “use” sufficient to justify or maintain registration.
For example, Applicant cites our final decision in Alfacell Corp. v. Anticancer, Inc.,
71 USPQ2d 1301 (TTAB 2004). While priority of use was not at issue in that final
decision, abandonment was at issue earlier in the case, at the summary judgment
phase. On summary judgment, as explained in the Alfacell final decision, we “found
that Congress intended the term ‘use in commerce’ to encompass shipments of
pharmaceuticals for pre-clinical trials in this country … prior to receiving FDA
approval,” and therefore that the respondent’s shipments for pre-clinical trials were
sufficient “use” to avoid abandonment. Id. at 1303. Courts have similarly found that
under certain circumstances, sales or shipments of pharmaceuticals for purposes of
clinical trials may be sufficient to establish priority of use, or to at least constitute
“sufficient facts” to state a claim or create a genuine dispute of material fact. See
Kythera Biopharmaceuticals, Inc. v. Lithera, 998 F.Supp.2d 890, 899 (C.D. Cal. 2014)
(“The Court first finds that Plaintiff has alleged sufficient facts to show that it has a
protectable interest. Shipments of drugs for clinical testing may be a sufficient use in
commerce to show a protectable interest.”); G.D. Searle & Co. v. Nutrapharm, Inc.,
No. Civ. 6890 TPG, 1999 WL 988533 (S.D.N.Y. 1999).
The Trademark Law Revision Act of 1989’s legislative history provides some
support for this theory of “use.” For example, the House Judiciary Committee Report
“recognizes that the ‘ordinary course of trade’ varies from industry to industry,” and
indicates that a pharmaceutical company’s “shipment to clinical investigators during
Opposition No. 91239079
13
the Federal approval process will often be in the ordinary course of trade.” H.R. No.
100-1028, p. 15 (Oct. 3, 1988) (emphasis added). Similarly, the Senate Judiciary
Committee Report indicates the Committee’s intention that “use in commerce” be
interpreted: (1) “to mean commercial use which is typical in a particular industry;”
and (2) “to encompass various genuine, but less traditional, trademark uses such as
… ongoing shipments of a new drug to clinical investigators by a company awaiting
FDA approval.” S. Rep. No. 100-515, p. 44-45 (Sept. 15, 1988).
We do not agree that Applicant’s analogy to clinical testing of pharmaceuticals is
apt here. In this case, in sharp contrast to pharmaceutical clinical trials, Applicant’s
efforts to obtain regulatory approval prior to the filing date of its involved trademark
application consisted of nothing more than transmitting a single receiver, followed by
a single complete shotgun, to ATF. In other words, there was no public exposure to
the mark as a result of Applicant’s efforts to obtain regulatory approval. In fact,
Applicant made a specific decision to not promote its TYPHOON firearms at that
time. Indeed, according to Mr. Wong, “we waited to start our advertising campaign
until the first 300 units came” to the United States, at the end of 2016 at the earliest.
22 TTABVUE 29-30.
This is different than the clinical trials situation, in which doctors or others
investigating a pharmaceutical product, and test subjects, who could all be potential
consumers, are exposed to the product, and presumably on at least some occasions,
its trademark. In other words, there is commercial activity associated with the
product. Here, by contrast, Applicant sent a single receiver, followed by a single
Opposition No. 91239079
14
complete shotgun, to a federal agency only, for the non-commercial purpose of
inspection, years prior to actually offering the product to the consuming public, or
publicly promoting it in any way.
Furthermore, in contrast to Alfacell, here Applicant does not have an existing
registration for its mark, and does not claim any “use” prior to its filing date other
than its efforts to obtain ATF approval. Instead, Applicant is seeking registration in
the first instance; it is not seeking to defeat an abandonment claim.
Moreover, Applicant does not argue, must less cite any authority for the
proposition, that the mere shipment of a product to a regulatory agency, years prior
to sales or public use of the mark, is sufficient “use” to qualify for registration or
establish priority. As the House Judiciary Report states, “shipment to clinical
investigators during the Federal approval process will often be in the ordinary
course of trade,” which means that it will not always be in the ordinary course of
trade. Perhaps more importantly, shipments to “clinical investigators” would involve
more public exposure to the mark, by at least investigators and subjects/patients, i.e.,
potential consumers, than shipments to a single agency for a one-off inspection of the
product for purposes of granting importation approval.
Applicant’s alternative argument that its activities constitute “use analogous to
trademark use” is not well taken. Use analogous to trademark use must be pleaded
or tried by implied consent. Cent. Garden, 108 USPQ2d at 1142. Here, it was neither.
Neither Applicant’s answer nor its “affirmative defenses” mention use analogous to
trademark use. While Applicant’s answer makes clear its intention to rely on the
Opposition No. 91239079
15
ATF’s October 1, 2013 approval of the importation of the receiver to establish earlier
use than its filing date, at the same time, Applicant refers to this as “bona fide use”
rather than use analogous to trademark use. 4 TTABVUE 4-5.
Furthermore, there is no basis upon which to conclude that the issue of analogous
use was tried by implied consent. Indeed, as a result of Applicant’s claim in its answer
that the ATF’s approval of Applicant’s request to import the receiver constituted
“bona fide use,” Opposer may understandably have assumed that Applicant’s trial
evidence concerning the approval was an attempt to support an erroneous claim of
actual use rather than use analogous to trademark use. See TBMP §507.03(b) (June
2019).
In any event, even if we were to find that Applicant pleaded use analogous to
trademark use or that the issue was tried by implied consent, the claim would fail.
Before a prior use becomes an analogous use sufficient to
create proprietary rights, the [party] must show prior use
sufficient to create an association in the minds of the
purchasing public between the mark and the [party’s]
goods … A showing of analogous use does not require direct
proof of an association in the public mind … Nevertheless,
the activities claimed to create such an association must
reasonably be expected to have a substantial impact on the
purchasing public before a later user acquires proprietary
rights in a mark ….

Herbko Int’l, 308 F.3d at 1156, 64 USPQ2d at 1378; T.A.B. Systems v. PacTel Teletrac,
77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996). Here, there is no evidence that any
of Applicant’s activities prior to its filing date created an association in the minds of
the purchasing public between TYPHOON and Applicant’s shotguns.
Opposition No. 91239079
16
There is no evidence that the ATF’s importation approvals and inspections were
anything other than a private matter between Applicant and the ATF.8 That is not
good enough − only uses of the mark or uses analogous to trademark use “directed to
customers or to potential customers” would be sufficient to confer prior rights. See
Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 308-09, 316
(TTAB 1979); see also Computer Food Stores Inc. v. Corner Store Franchises, Inc., 176
USPQ 535, 539 (TTAB 1973).
Nor did Applicant begin promoting its TYPHOON shotguns until after Opposer’s
date of first use. In fact, Mr. Wong testified that Applicant made a considered choice
to avoid promoting what would essentially be the firearm equivalent of “vaporware,”9
testifying that “announcing the product before it’s ready for sale is a recipe for
disaster.” 22 TTABVUE 29-30.
While Applicant brought the complete shotgun approved by ATF to a trade show
in 2015, the purpose of doing so was to solicit suggestions for improving the gun. In
other words, Mr. Wong indicated to the “couple of individuals within the firearms
industry” whose help he solicited that the gun was not the final version to be offered

8 Cf. Automedx, Inc. v. Artivent Corp., 95 USPQ2d 1976 (TTAB 2010) (test sales to potential
customers constitute bona fide use).
9 Merriam-Webster dictionary defines “vaporware” as “a computer-related product that has
been widely advertised but has not and may never become available.” (merriam-
webster.com/dictionary/vaporware). The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed format or have regular fixed
editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d
594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold TV Inc. v. Metronome Enters. Inc., 96
USPQ2d 1031, 1038 n.14 (TTAB 2010).

Opposition No. 91239079
17
to the consuming public. 22 TTABVUE 27. A “couple of individuals” who may not
even be potential customers is not nearly enough to establish use analogous to
trademark use. T.A.B. Systems, 77 F.3d at 1372, 37 USPQ2d at 1882-84 (“Nor can
there be any doubt that purchaser perception must involve more than an
insubstantial number of potential customers. For example, if the potential market
for a given service were 10,000 persons, then advertising shown to have reached only
20 or 30 people as a matter of law could not suffice.”); Westrex Corp. v. New Sensor
Corp., 83 USPQ2d 1215, 1219 (TTAB 2007). Furthermore, Applicant did not show the
final product to these individuals. Rather, it sought their help to develop the final
product. Cf. Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1 USPQ2d
1772, 1774-75 (Fed. Cir. 1987) (“Subsequent adoption of the mark does not convert a
shipment for the purpose of advisory consultation on the merits of a proposed
trademark into a bona fide use of the mark in commerce.”).
VI. Conclusion
Of course, we must weigh the evidence of record as a whole, rather than
considering each piece of evidence in isolation. West Florida Seafood Inc. v. Jet
Restaurants Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994) (“However,
whether a particular piece of evidence by itself establishes prior use is not necessarily
dispositive as to whether a party has established prior use by a preponderance.
Rather one should look at the evidence as a whole, as if each piece of evidence were
part of a puzzle which, when fitted together, establishes prior use.”). Here, applying
this standard, we find that the whole of Applicant’s activities before the filing date of
Opposition No. 91239079
18
its application − consisting of seeking ATF approval for importations and soliciting
suggestions for improving Applicant’s goods before they are offered to the public − do
not establish any “substantial impact on the purchasing public.” Herbko Int’l, 64
USPQ2d at 1378. In the absence of evidence that relevant consumers were exposed
to and substantially impacted by the use of Applicant’s mark in connection with
Applicant’s goods, Applicant’s analogy to pharmaceutical clinical trials fails. Because
Opposer has established that it has priority of use and that there is a likelihood of
confusion between the marks, the opposition is sustained.

Decision: The opposition is sustained on Opposer’s Section 2(d) claim, and we
therefore need not reach Opposer’s other claims. Multisorb Tech., Inc. v. Pactiv Corp.,
109 USPQ2d 1170, 1171 (TTAB 2013). Registration of Applicant’s mark is refused.