Deb Reid and Spark Yoga LLCv.Radiant Yoga LLC dba YogaSpark

Trademark Trial and Appeal Board

Apr 23, 2021

92064505 (T.T.A.B. Apr. 23, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: April 23, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Deb Reid and Spark Yoga LLC

v.

Radiant Yoga LLC dba YogaSpark

_____

Cancellation No. 92064505
_____

Gregory P. Brummett of Brummett Techlaw PLLC for Deb Reid and Spark Yoga
LLC.

Lisa A. Ferrari, Edward M. Weisz, and Brianne L. Polito of Cozen O’Connor for
Radiant Yoga LLC dba YogaSpark.

_____

Before Taylor, Goodman and Lynch,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Radiant Yoga LLC dba YogaSpark (“Respondent”) owns a registration for the
mark shown below for “Physical fitness training services” in International Class 41.1

1 Registration No. 4525175 issued May 6, 2014. The description of the mark reads: “The mark
consists of the words ‘YOGA’ and ‘SPARK’ combined, with the ‘letter O’ in the word ‘YOGA’
depicted as a flame design.” Color is not claimed as a feature of the mark.
Cancellation No. 92064505
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Deb Reid and Spark Yoga LLC (“Petitioner”)2 filed a petition to cancel the
registration of Respondent’s mark on the ground of likelihood of confusion under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d).3 Petitioner pleads use of the mark
YOGASPARK in connection with services “including, but not limited to, yoga classes
and retreats for individuals and groups.” Petitioner alleges use of the YOGASPARK
mark on the website www.yogaspark.com as well as on social media accounts,
including Facebook, prior to Respondent’s use. Petitioner also pleads ownership of
Application Serial No. 87173448 for the mark YOGASPARK in connection with
“Providing fitness instruction services in the field of yoga; providing fitness training
services in the field of yoga” in International Class 41.4 Petition to Cancel, 1
TTABVUE.
Respondent filed an answer, and subsequently filed first and second amended
answers. Respondent admitted Petitioner’s filing of a pending trademark application

References to the briefs and the record refer to the Board’s TTABVUE docket system.
2 We initially shall refer as appropriate to both Spark Yoga LLC, the joined petitioner, and
Deb Reid, the original petitioner as “petitioner” except where we distinguish the two for
purposes of clarity. As discussed below, the Board joined Spark Yoga LLC as a party-plaintiff
as a result of Deb Reid’s assignment of her rights in the pleaded mark and her pending
application to Spark Yoga LLC. 47 TTABVUE.
3 Petitioner attempted later to allege a fraud claim but the motion to amend was denied by
the Board as untimely. 103 TTABVUE.
4 The application was filed September 16, 2016 under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a) based upon a claim of first use anywhere and use in commerce since at least
as early as January 31, 2010.
Cancellation No. 92064505
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for YOGASPARK but otherwise denied the salient allegations in the petition to
cancel.5 Respondent asserted affirmative defenses.6
Respondent also sought to amend its identification of services from “physical
fitness training services” to “physical fitness training services in the nature of yoga
classes and training offered to consumers at branded studios under the trademark.”7
44 TTABVUE.
Both Petitioner and Respondent submitted trial briefs.
I. The Record
Before turning to the substantive merits of this proceeding, we first consider the
evidence of record. On January 8, 2020, the Board granted Respondent’s motion to
strike the discovery deposition testimony and exhibits of Deb Reid, Susan Park, and
John Wellborn submitted during Petitioner’s testimony period, as well as the

5 Respondent’s second amended answer, 55 TTABVUE 12-18, is the operative pleading. See
Board order at 79 TTABVUE.
6 Respondent’s affirmative defenses have been waived because they were neither tried nor
argued in Respondent’s brief. See Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107
USPQ2d 1750, 1752 n.6 (TTAB 2013).
7 Respondent references the TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 514.03 which indicates that if the Board ultimately finds that a defendant is not
entitled to registration in the absence of a restriction that was timely proposed by the
defendant, the proposed restriction will be approved and entered. But, on the other hand, if
the Board ultimately finds that defendant is entitled to registration even without the
proposed restriction, defendant will be allowed time to indicate whether it still wishes to have
the restriction entered. 44 TTABVUE 3; TBMP § 514.03 (2020). We address the request for
a restriction at the end of this decision.
Cancellation No. 92064505
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summary judgment declaration of Petitioner’s counsel Gregory Brummett, submitted
under notice of reliance during Petitioners’ testimony period. 8 119 TTABVUE.
Because the exhibits B-K attached to the Brummett declaration were submitted
under a notice of reliance, the Board also considered whether any of the exhibits
attached to the declaration were admissible. The Board determined that Exhibit C,
an excerpt of the discovery deposition testimony of Lauren Porat, a principal of
Respondent, and Exhibit K, a printout from the website “classpass.com” were
admissible under the notice of reliance. Id. The remaining exhibits B, and D-J
attached to the Brummett declaration were stricken.9 The notice of reliance had a
defect in that it did not explain the relevance of the two remaining exhibits, and the
Board allowed Petitioner time to cure the defect. Id.
Petitioner filed the amended notice of reliance on January 28, 2020, explaining
the relevance of the two exhibits, and labeling them as Exhibits A and B. 120
TTABVUE. In its amended notice of reliance, Petitioner states that Ms. Porat’s
discovery deposition testimony is “relevant to establishing Reid’s common law rights
in the mark YOGASPARK” based on Porat’s “knowledge of the existence of Deb Reid’s
website, www.yogaspark.com, and Reid’s use of the mark YOGASPARK in
conjunction with her business of yoga instruction.” Id. The classpass.com printout is

8 These deposed individuals are either a Petitioner, the designated witness for a Petitioner,
or the owner of a Petitioner and not an adverse party. The summary judgment declaration
was not affirmed as an exhibit to other testimony. 119 TTABVUE.
9 In this order, the Board denied Petitioner’s motion to reopen testimony and denied
Respondent’s motion for involuntary dismissal. 119 TTABVUE.
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“relevant to the normal business practices within yoga studios for establishing Reid’s
common law rights in the mark YOGASPARK.” Id.
The parties have designated Ms. Porat’s discovery deposition testimony as being
“partially confidential” and the excerpt of Ms. Porat’s testimony (Exhibit A under
Petitioner’s amended notice of reliance), has been filed confidentially. However, it is
unclear what portions of this testimony are truly confidential. As indicated by
Petitioner’s amended notice of reliance, the discovery deposition testimony excerpt
includes Ms. Porat’s testimony as to her search and review of Deb Reid’s website,
www.yogaspark.com, testimony related to the services offered on Ms. Reid’s website
and whether Ms. Reid offered services similar to Respondent’s. There is nothing
confidential about Ms. Porat’s testimony about an Internet website that is open to
public view nor her testimony about Ms. Reid’s or Respondent’s services offered to
the public. RXD Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1805
n.18 (TTAB 2018) (finding testimony regarding trademark searches and applicant’s
services offered under the mark improperly designated as confidential); Inter IKEA
Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1744 (TTAB 2014) (printout of shopping
cart webpage available to the public is not confidential).
The parties cannot shield from the public information that is not truly
confidential. Therefore, in order to render a decision that relates to the relevant facts
of this case, we have referred to selective portions of this testimony that appear to us
to be not truly confidential. Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“[t]he
Board may treat as not confidential that material which cannot reasonably be
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considered confidential, notwithstanding a designation as such by a party.”); see
Coach/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1461
(TTAB 2014) (Board was not bound by petitioner’s confidential designations, and
treated only testimony and evidence that was clearly of a private or commercial
nature as confidential); General Motors Corp. v. Aristide & Co., 87 USPQ2d 1179,
1181 (TTAB 2008) (to render a decision that relates to the facts of the case the Board
referred to selective portions of the record that appear to be not truly confidential).
As to Exhibit B submitted under the amended notice of reliance, the classpass.com
Internet printout is admissible for what it shows on its face, but also constitutes
hearsay and may not be relied upon for the truth of the matters asserted therein.
Weaponx Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034,
1038 (TTAB 2018).
Although Respondent filed notices of taking testimony, it ultimately took no
testimony nor submitted evidence during its testimony period.10 But Respondent did
admit in its second amended answer Petitioner’s allegation in the petition to cancel
that “Petitioner filed an application for the mark ‘YOGASPARK’ (‘Petitioner’s Mark’)
on September 16, 2016, that has been assigned Application Serial No. 87/173,448, for
use in connection with ‘Providing fitness instruction services in the field of yoga;
providing fitness training services in the field of yoga’ in International Class 041,

10 109-112 TTABVUE. Because “Respondent did not introduce any testimony or evidence,”
the Board also struck Petitioner’s notice of rebuttal disclosures which sought to submit
rebuttal evidence. 128 TTABVUE.
Cancellation No. 92064505
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asserting a date of first use in commerce of at least January 31, 2010.” Petition to
Cancel ¶7, 1 TTABVUE, Second amended Answer ¶7, 55 TTABVUE.
During the pendency of the proceeding, Petitioner Deb Reid assigned her mark to
Spark Yoga LLC (Spark Yoga). Petitioner filed the notice of assignment and
notification of the recordation of assignment document with the Office’s Assignment
Branch at Reel/Frame 6263/0149. 46 TTABVUE. The Board acknowledged the
assignment, joining Spark Yoga as a party plaintiff. 47 TTABVUE. By joining Spark
Yoga as a petitioner, the Board determined that Spark Yoga had the right to maintain
this proceeding. See Trademark Rule 3.71(d), 37 C.F.R. §3.71(d). Therefore, Spark
Yoga owns all rights to the trademark previously owned by Deb Reid, and as set forth
in the Petition to Cancel, application Serial No. 87173448. That is, Spark Yoga, as
assignee, steps into the shoes of petitioner Deb Reid. Id. See e.g., Karsten Mfg. Corp.
v. Editoy AG, 79 USPQ2d 1783, 1790 n.9 (TTAB 2006) (an assignee stands in the
shoes of its assignor); William & Scott Co. v. Earl’s Rest. Ltd. 30 USPQ2d 1870, 1873
(TTAB 1994) (assignee of trademark and pleaded registration, substituted as party
plaintiff in opposition, may rely on assignor’s prior use of the mark and is entitled to
go forward on assignor’s claim of priority of likelihood of confusion as alleged in the
notice of opposition).
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II. Statutory Entitlement to Bring a Cancellation Proceeding11
In every inter partes case, the plaintiff must establish its statutory entitlement to
bring an opposition or cancellation proceeding. “A petitioner’s allegations alone do
not establish [] [a statutory entitlement to bring a cancellation proceeding].... The
facts regarding [] [a statutory entitlement to bring a cancellation proceeding] … are
part of a petitioner’s case and must be affirmatively proved.” See Lipton Indus. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 188-89 (CCPA 1982).
To establish entitlement to a statutory cause of action, a plaintiff must
demonstrate: (i) an interest falling within the zone of interests protected by the
statute and (ii) proximate causation. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
2020 USPQ2d 11277, at *4 (Fed. Cir. 2020). Demonstrating a real interest in opposing
or cancelling a registration of a mark satisfies the zone-of-interests requirement, and
demonstrating a reasonable belief in damage by the registration of a mark
demonstrates damage proximately caused by registration of the mark. Id. at *7-8.
Where there are multiple plaintiffs, each plaintiff must prove its statutory
entitlement to bring the opposition or cancellation proceeding and, in the case of a
likelihood of confusion claim, prior use. Int’l Dairy Foods Ass’n v. Interprofession du
Gruyère et al., 2020 USPQ2d 10892 at *9 (TTAB 2020).

11 “[O]ur prior decisions and those of the Federal Circuit assessing a party’s ‘standing’ under
Sections 13 and 14 remain applicable despite the change in nomenclature of the inquiry to
entitlement to a statutory cause of action.” Spanishtown Enterprises, Inc. v. Transcend
Resources, Inc., 2020 USPQ2d 11388 at *2 (TTAB 2020).
Cancellation No. 92064505
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While Petitioner did not address this issue in its brief, Respondent submits that
Petitioner has not established its statutory entitlement to bring the cancellation
proceeding.
Respondent, referencing the trademark assignment to Spark Yoga asserts that
Petitioner Deb Reid “no longer claims ownership rights in the mark,” did not
introduce evidence of her statutory entitlement to bring a cancellation proceeding,
and there is no other evidence in the record of Deb Reid’s statutory entitlement to
bring the cancellation. 132 TTABVUE 10, 16. Respondent also asserts that Spark
Yoga never amended the petition to cancel to properly allege its statutory entitlement
to bring the cancellation which would include the assignment of the application
(“Thus, Spark Yoga never alleged a stake in the proceedings or identified a statutory
basis for its claim of cancellation.”) 133 TTABVUE 10, 16-17. Respondent argues that
Spark Yoga did not submit any evidence of statutory entitlement to bring the
cancellation proceeding during trial. 133 TTABVUE 17.
With respect to Petitioner Deb Reid, Respondent’s admission in the second
amended answer does not establish her statutory entitlement to bring a cancellation
proceeding as she has assigned the mark to Spark Yoga and there is no evidence in
the record that she has licensed back use of the YOGASPARK mark. See e.g., Karsten
Mfg., 79 USPQ2d at 1790 n.9 (“[T]he law is well established that an assignee stands
in the shoes of its assignor.”); 3 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS
AND UNFAIR COMPETITION § 18:15 (5th ed. March 2021 update) (“After an assignment,
the assignor has divested itself of its trademark rights.”); see also Moke Am. LLC v.
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Moke USA, LLC, 2020 USPQ2d 10400, at 2 & *8 n.32 (TTAB 2020) (plaintiff found to
have standing based on assignment and license back of mark, by providing testimony
of the assignment and license back as well as evidence of trademark use and
advertising subsequent thereto); J.L. Prescott Co. v. Blue Cross Labs. (Inc.), 216
USPQ 1127, 1128 (TTAB 1982) (opposer that had assigned mark and obtained
exclusive license from assignee had standing).
Ms. Porat’s testimony also does not establish Deb Reid’s statutory entitlement, as
Ms. Porat’s testimony discusses Deb Reid’s website from 2012 and does not address
Deb Reid’s current use of YOGASPARK. See e.g., Syngenta Crop Protection, Inc. v.
Bio-Chek, LLC, 90 USPQ2d 1112, 1118 (TTAB 2009) (witness testimony that opposer
uses the mark in connection with a temperature sensing device, sufficient to establish
standing). In addition, Ms. Porat does not view Deb Reid as a competitor, stating that
their services were “so different” “we are –have different –totally different
businesses,” “totally different consumers, as I said before, totally different channels
of trade” and “I didn’t think that there –that she had a mark YogaSpark.” 121
TTABVUE, confidential. Accordingly, Deb Reid has failed to establish her statutory
entitlement to bring this cancellation. Therefore the petition to cancel is dismissed as
to Petitioner Deb Reid.12
With respect to Petitioner Spark Yoga, Respondent admitted in the second
amended answer Petitioner’s ownership of the pending trademark application Serial
No. 87173448 for the mark YOGASPARK for “Providing fitness instruction services

12 Going forward, any reference to “Petitioner” hereinafter is limited to Spark Yoga.
Cancellation No. 92064505
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in the field of yoga; providing fitness training services in the field of yoga.” Although
Respondent argues otherwise, this admission is sufficient to establish Spark Yoga’s
statutory entitlement to bring a cancellation proceeding.
In particular, Spark Yoga was entitled to rely on the allegations in the petition to
cancel related to this application, and it was not necessary that Spark Yoga establish
ownership of this application separately as it succeeds Deb Reid’s interests and can
rely on the existing allegation in the petition to cancel as to this application. See
Trademark Rule 3.71(d), 37 C.F.R. §3.71(d); William & Scott Co. v. Earl’s Rest. Ltd.,
30 USPQ2d 1870, 1873 (TTAB 1994) (assignee of trademark substituted as party
plaintiff in opposition is entitled to go forward on assignor’s claim of priority of
likelihood of confusion as alleged in the notice of opposition).
Additionally, it is not necessary that Spark Yoga prove that the Office cited
Respondent’s mark as a bar to registration. “It is sufficient if the circumstances are
such that it would be reasonable for a petitioner to believe that the existence of the
respondent’s registration would damage him, e.g., a reasonable belief that there is a
likelihood of confusion between the marks, or that the presence on the register of the
respondent’s mark may hinder the petitioner in using or registering his mark.”
Spirits Int’l, B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi,
99 USPQ2d 1545, 1548 (TTAB 2011). Thus, statutory entitlement to bring a
cancellation proceeding can be found based on the filing of an application to register
an identical mark for related services. Id. (standing found by the filing of a trademark
application with the Office where the parties’ marks are identical and the goods
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arguably related). Here, the admission in Respondent’s answer establishes that
assignee Spark Yoga’s predecessor in interest filed a trademark application for the
identical mark YOGASPARK for yoga services that are encompassed by Respondent’s
“physical fitness training services,” which is sufficient to establish Spark Yoga’s
statutory entitlement to bring the cancellation proceeding.
III. Priority
In order for Petitioner to prevail on a claim of likelihood of confusion based on its
ownership of common-law rights in a mark, the mark must be distinctive, inherently
or otherwise, and Petitioner must show that it obtained rights in that distinctive term
through use prior to that of Respondent. See Otto Roth & Co. v. Universal Foods Corp.,
640 F.2d 1317, 209 USPQ 40, 44 (CCPA 1981). Absent argument or evidence showing
otherwise, we find that YOGASPARK is inherently distinctive. Wet Seal Inc. v. FD
Mgmt., Inc., 82 USPQ2d 1629, 1634 (TTAB 2007).
In a cancellation proceeding, to establish priority on a likelihood of confusion claim
brought under Section 2(d) of the Trademark Act, a party must prove, vis-à-vis the
other party, that it owns “a mark or trade name previously used in the United States
and not abandoned.” Trademark Act 2(d), 15 U.S.C. § 1052(d). Petitioner must prove
its priority by a preponderance of the evidence. Hydro-Dynamics, Inc. v. George
Putman & Co., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987). We must “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.” W. Fla. Seafood Inc. v. Jet Rests. Inc., 31
F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994).
Cancellation No. 92064505
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As stated, Spark Yoga, as assignee, may rely on Deb Reid’s prior use of the mark
for purposes of priority. See William & Scott Co. v. Earl’s Rest. Ltd. 30 USPQ2d at
1873. Respondent relies on its August 28, 2013 filing date of the underlying
application that matured into its involved registration for purposes of priority. Kemi
Organics, LLC v. Rakesh Gupta, 126 USPQ2d 1601, 1604 (TTAB 2018) (“For priority
purposes, a respondent may rely upon the filing date of the underlying application
that matured into its involved registration”) (citing 15 U.S.C. § 1057(c); Cent. Garden
& Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1140-41 (TTAB 2013)). Therefore,
we consider the evidence in the record as to Deb Reid’s prior use and whether the use
was prior to Respondent’s priority date.
Petitioner argues that Deb Reid had prior rights in the mark YOGASPARK in
connection with “yoga-based instructional and training services well before
Registrant’s first use of the confusingly similar mark.” 129 TTABVUE 9. Petitioner
references the testimony of Ms. Porat relating to testimonials on Deb Reid’s website
as sufficient to establish Ms. Reid’s prior use of YOGASPARK in connection with yoga
instruction-based instructional and training services. Id. As evidence of Deb Reid’s
prior use, Petitioner also references Ms. Porat’s testimony regarding her search of
Deb Reid’s website www.yogaspark.com in 2012 and her review of the website. 129
TTABVUE 7-8.
Respondent, on the other hand, argues that there is no evidence of record to prove
Petitioner’s prior use of YOGASPARK such as use or promotion, sales figures,
customer lists, or corroborating testimony regarding use of the mark in the United
Cancellation No. 92064505
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States. 133 TTABVUE 19. Respondent also points out that the assignment of the
YOGASPARK mark to Spark Yoga is insufficient evidence to establish priority. 133
TTABVUE 19. Respondent argues that Ms. Porat’s testimony relating to the
yogaspark.com website does not establish Petitioner’s priority and asserts that “Porat
had no information or knowledge whether Reid had used any mark whatsoever prior
to August 28, 2013, or if the mark was still in use at that time.” 133 TTABVUE 20;
133 TTABVUE 20-23. Respondent also notes that the provided excerpt of Ms. Porat’s
deposition testimony did not include the website pages that Ms. Porat viewed. 133
TTABVUE 13.
As alleged in the petition to cancel and argued, Petitioner’s priority claim is based
on use of YOGASPARK on the www.yogaspark.com website, which is an assertion of
priority based on use analogous to service mark use.13 See e.g., Giersch v. Scripps
Networks Inc., 90 USPQ2d 1020, 1023 (TTAB 2009) (use analogous to trademark
includes use in advertising brochures, trade publications, catalogs, newspaper
advertisements and Internet websites which create a public awareness of the
designation as a trademark identifying the party as a source).
In order to demonstrate that use analogous to service mark use has given rise to
proprietary rights, a party must show that such prior use was sufficient to create an
association in the minds of the purchasing public between the mark and the services.
Malcolm Nicol & Co. v. Witco Corp., 881 F.2d 1063, 11 USPQ2d 1638, 1639 (Fed. Cir.

13 Petitioner has alleged prominent display of the mark YOGASPARK on the
www.yogaspark.com website. Petition to Cancel, ¶8, 1 TTABVUE.
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1989). The use must be more than mere advertising and must be shown to have a
substantial impact on the purchasing public. T.A.B. Sys. v. PacTel Teletrac, 77 F.3d
1372, 37 USPQ2d 1879, 1882 (Fed. Cir. 1996); Westrex Corp. v. New Sensor Corp., 83
USPQ2d 1215, 1218 (TTAB 2007). That is, the use must be “sufficiently clear,
widespread and repetitive to create the required association in the minds of the
potential purchasers between the mark as an indicator of a particular source and the
service to become available later.” T.A.B. Sys., 37 USPQ2d at 1882.
As Respondent points out, “[a]n assignment without any evidence of use by the
assignor will not prove priority because the assignment document alone is not proof
of use.” Moke Am. LLC, 2020 USPQ2d 10400 at *8. Therefore, we consider whether
Ms. Porat’s deposition testimony contains statements against Respondent’s interest,
acknowledging Deb Reid’s prior use of YOGASPARK in connection with yoga-based
instructional and training services prior to Respondent’s priority date.
We note that Petitioner cannot rely on Ms. Porat’s testimony regarding the
written statements made on the www.yogapark.com website to prove Deb Reid’s prior
use as these statements are hearsay.14 See e.g., Chapman v. Universal Motown
Records Grp., No. 08 Civ. 3255 (LAP), 2010 WL 517480 at *4-5 (S.D.N.Y. Feb. 03,
2010) (plaintiff’s deposition testimony regarding written statements made by an
employee of defendant on the employee’s personal website were hearsay and could
not be used to prove the truth of those statements).

14 We note there may be multiple levels of hearsay to the extent that the website client
testimonials are offered by Petitioner to prove the truth of what has been asserted by these
individuals.
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Although Ms. Porat’s testimony acknowledges the existence of Ms. Reid’s website
in 2012 at the domain name address www.yogaspark.com, use by Deb Reid of a
domain name as a website address does not support trademark or service mark use
or use analogous to trademark or service mark use. There are no allegations,
testimony or evidence that Deb Reid used yogaspark.com as a mark. In re Eilberg, 49
USPQ2d 1955, 1957 (TTAB 1998) (use of internet address on letterhead was not
service mark use but merely indicated the location on the Internet where applicant's
website appears). See Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp., 174 F.3d
1036, 50 USPQ2d 1545, 1556 (9th Cir. 1999) (acquisition of a domain name cannot by
itself establish priority of use). Therefore, Ms. Porat’s testimony as to searching on
the Internet and accessing Reid’s website located at yogaspark.com does not establish
Petitioner’s prior use of YOGASPARK.
Ms. Porat’s testimony does acknowledge Ms. Reid’s use on her website of a
YOGASPARK logo. 121 TTABVUE, confidential. However, Ms. Porat’s
acknowledgement of use of the YOGASPARK logo on Deb Reid’s website is
insufficient to show that the public would have been aware of YOGASPARK in any
meaningful way. See T.A.B. Sys., 37 USPQ2d at 1882 (Fed. Cir. 1996) (activities
engaged in must be clear, widespread and repetitive, sufficient to have established
prior analogous trademark/service mark use and “purchaser perception must involve
more than an insubstantial number of potential customers.”); Ricardo Media Inc. v.
Inventive Software, LLC, 2019 USPQ2d 311355, at *3 (TTAB 2019) (no evidence
introduced to show that United States consumers visited website to view digital
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content bearing the mark). Moreover, Ms. Porat’s testimony indicates that she
believed Ms. Reid was not “really actively using the YogaSpark name in any sense”
and did not believe Ms. Reid “had a mark YogaSpark.” 121 TTABVUE, confidential.
Lastly, Ms. Porat’s testimony does not tie any use of YOGASPARK by Ms. Reid
with yoga-based instructional and training services. Aside from the hearsay
references to Ms. Reid’s services as found on the website, Ms. Porat testified that the
services Deb Reid provided were different from her services, involved different initial
consumers and end-consumers, and were offered in different channels of trade. 121
TTABVUE, confidential.
We find that Ms. Porat’s testimony does not provide statements against interest
that establish Petitioner’s priority.
As to the classpass.com website pages that list customer testimonials relating to
classes offered by Respondent, Petitioner submitted this as evidence in support of its
priority claim. Petitioner indicates in the amended notice of reliance that these web
pages establish the normal business practices of Yoga studios. However, even if this
evidence is relevant to show, for example, the marketing of yoga services, this
evidence does not in any way establish Petitioner’s priority.
Looking at the evidence as a whole, W. Fla. Seafood, 31 USPQ2d at 1663, we find
that Petitioner did not prove that it used YOGASPARK through its predecessor-in-
interest before Respondent’s priority date of August 28, 2013.
Although we have found Petitioner to have established a statutory entitlement to
bring a petition to cancel the subject registration, there are no admissions by
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Respondent nor testimony or evidence in the record of Petitioner’s predecessor in
interest’s prior use of YOGASPARK. Accordingly, Petitioner failed to prove a critical
element of its likelihood of confusion claim, priority, and cannot prevail.

Decision: The petition to cancel is denied.
In view of the denial of the petition to cancel on the likelihood of confusion ground,
Respondent is allowed until twenty days from the mailing date of this decision to
indicate whether it still wishes to have its proposed restriction to the identification of
services entered.