Disorderly Kids, LLCv.Roman Atwood

Trademark Trial and Appeal Board

Nov 20, 2018

No. 92062027 (T.T.A.B. Nov. 20, 2018)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: November 20, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Disorderly Kids, LLC.
v.
Roman Atwood
_____
Cancellation No. 92062027
_____
Matthew L. Seror and Jessie K. Reider of Buchalter Nemer APC for Disorderly Kids,
LLC.

Benjamin C. Haynes of Haynes & de Paz PA for Roman Atwood.
_____

Before Cataldo, Lykos and Adlin, Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Respondent, Roman Atwood, is the owner of U.S. Reg. No. 4695492 (the
Registration) on the Principal Register for the mark SMILE MORE in standard
characters, identifying the following goods and services:1
Pens, rubber bands, stickers, in International Class 16;
Backpacks, in International Class 18;

1 Issued March 3, 2015 from application Serial No. 86342612, filed on July 21, 2014 and
asserting September 1, 2013 as a date of first use of the mark in commerce in connection with
all identified classes of goods and services.
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Beanies, shirts, tank tops, in International Class 25; and
On-line retail store services featuring apparel and clothing,
in International Class 35.
Petitioner, Disorderly Kids, LLC, has filed a petition to cancel the Registration.
Petitioner’s asserted grounds in its amended petition for cancellation2 are that the
term SMILE MORE is “a common expression and does not function as a mark”;3 and,
in the alternative, that the mark “has not acquired distinctiveness, or achieved
secondary meaning…in connection with clothing.”4 In his amended answer,5
Respondent denied the salient allegations.
The case is fully briefed.
I. Evidentiary Objections.
Petitioner objects to the declaration of Respondent, Roman Atwood, and certain
exhibits submitted therewith.6 Many of the objections are to lack of foundation,
relevance and hearsay.
TTAB proceedings are heard by Administrative Trademark Judges, not lay jurors
who might be easily misled, confused, or prejudiced by flawed evidence. Cf. Harris v.

2 8 TTABVUE.
3 Id. at 5.
4 Id. at 6.
5 9 TTABVUE. In addition, Respondent asserted certain affirmative defenses but did not
pursue them at trial. Accordingly, they are deemed to be waived. See Harry Winston, Inc. v.
Bruce Winston Gem Corp., 111 USPQ2d 1419, 1422 (TTAB 2014) (pleaded affirmative
defenses not pursued in the brief considered waived); Research in Motion Ltd. v. Defining
Presence Marketing Group Inc., 102 USPQ2d 1187, 1189-90 (TTAB 2012) (affirmative
defenses not pursued at trial considered waived). Respondent further asserted as affirmative
defenses matters that are amplifications of his denials, and have been so construed.
6 47 TTABVUE.
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Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible
evidence that they are presumed to ignore when making decisions.”). We employ the
standards the Board has applied before and accord the evidence whatever probative
value it deserves. “Ultimately, the Board is capable of weighing the relevance and
strength or weakness of the objected-to testimony and evidence in this case, including
any inherent limitations, which precludes the need to strike the challenged testimony
and evidence if the objection is well-taken.” Poly-America, L.P. v. Ill. Tool Works Inc.,
124 USPQ2d 1508, 1510 (TTAB 2017). Mindful of any objections, we have given the
declaration and accompanying evidence its due weight. Luxco, Inc. v. Consejo
Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017). As necessary and
appropriate, we address any limitations to the evidence material to our decision. Id.
II. The record.
The record includes the pleadings and, by operation of Trademark Rule 2.122, 37
C.F.R. § 2.122, the file history of the involved mark. The record also includes
testimony and evidence submitted by the parties.
Petitioner’s evidence:
1. Notice of Reliance upon Respondent’s answers to certain of Petitioner’s
Interrogatories (18 TTABVUE).

2. Notice of reliance upon copies of third-party registrations obtained from the
USPTO’s Trademark Electronic Search System (TESS) for marks including the
wording SMILE MORE, SMILE, and formatives thereof, for various goods and
services (Id.).

3. Notice of reliance upon printed screenshots from third-party informational and
commercial websites displaying the wording SMILE MORE, and formatives
thereof, in connection with the marketing of goods and services as well as
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articles concerning dentistry and social and psychological aspects of smiling
(18-19 TTABVUE).

Respondent’s testimony and evidence:

1. Testimony declaration (redacted) of Respondent and exhibits (28 TTABVUE).7

2. Notice of reliance upon printed screenshots from Respondent’s website and
third-party websites showing use of SMILE MORE in connection with
Respondent, and his goods and services (29 TTABVUE).

3. Notice of reliance upon printed screenshots from third-party websites showing
use of SMILE MORE in connection with Respondent, his goods and services,
and notifications to Respondent from Twitter users regarding goods displaying
“Smile More” that do not emanate from Respondent; printouts from the
USPTO’s Trademark Search and Data Retrieval (TSDR) showing that
Respondent is the owner of an additional registration and application for the
mark SMILE MORE for various goods and services (30 TTABVUE).

4. Amended notice of reliance upon certain materials previously submitted in 29-
30 TTABVUE, curing deficiencies therein pursuant to Board order.8 (35
TTABVUE).

III. Standing.
As a threshold matter, Petitioner must prove its standing in order to be heard on
the claims it has brought. See, e.g., Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185, 187 (CCPA 1982). To do so, Petitioner must prove that it has a
“real interest” in the proceedings and a “reasonable” basis for its belief of damage.
Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); see also
Jewelers Vigilance Committee Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021
(Fed. Cir. 1987). To prove a “real interest” in this case, Petitioner must show that it

7 A confidential copy was filed separately and is not visible on TTABVUE.
8 On July 19, 2017, the Board issued an interlocutory order (34 TTABVUE) granting in part
Petitioner’s motion to strike (31 TTABVUE) certain exhibits to Respondent’s notices of
reliance and allowing Respondent leave to cure the deficiencies therein.
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has a “direct and personal stake” in the outcome and is more than a “mere
intermeddler.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); Ritchie v. Simpson, 50 USPQ2d at 1026.
Petitioner introduced into the record a copy of a cease and desist letter from
Respondent’s counsel to Wal-Mart regarding “Smile More” t-shirts sold at Wal-Mart’s
physical locations and online stores.9 Petitioner asserts that it manufactured the
“Smile More” t-shirts sold by Wal-Mart and is responsible for damage to Wal-Mart
resulting from the letter or actions taken by Respondent in connection therewith.10
Respondent acknowledges in his brief that Petitioner “sold Wal-Mart the t-shirt with
the phrase ‘Smile More’ that was the subject of [Respondent’s] cease and desist
letter.”11 This evidence is sufficient to demonstrate Petitioner’s standing. See Miller
v. Miller, 105 USPQ2d 1615, 1619 (TTAB 2013) (cease and desist letters provide
evidence that plaintiff has business interests that have been affected, i.e., a real
interest in the proceeding.). See also Ipco Corp. v. Blessings Corp., 5 USPQ2d 1974,
1977 (TTAB 1988); Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc.,
123 USPQ2d 1844, 1848 (TTAB 2017). “Once standing is established, the [plaintiff]
is entitled to rely on any of the grounds set forth in … the Lanham Act which negate
[defendant’s] right to its subject registration.” Jewelers Vigilance Committee, 2
USPQ2d at 2023-24.

9 18 TTABVUE 28-30.
10 8 TTABVUE 3-4.
11 38 TTABVUE 6.
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IV. Failure to function as a mark.
We now address Petitioner’s claim that Respondent’s mark fails to function as a
service mark to “identify and distinguish the services of one person . . . and to indicate
the source of the services.” 15 U.S.C. § 1127 (definition of “service mark).
Petitioner argues:
The phrase “Smile More” is frequently used in pop culture, artistic
endeavors, including in the name of a song and album, in the name
of live performance pieces and in connection with social commentary,
scholarly articles, blog posts and news articles. See Petitioner’s
Notice of Reliance Exhs. 34, 46, 48, 57, 58, 64-93. At least one retailer
named its loyalty program “Smile More” and “Smile More” was
included as part of a successful marketing campaign of Wal-Mart,
one of the largest retailers in the United States. See Petitioner's
Notice of Reliance, Exhs. 59, 61 and 62.

When reviewing the record in the instant proceeding, and the myriad
third party uses of the phrase “Smile More”, as well as the cultural
significance behind the phrase, under the standard set by the
Trademark Trial and Appeal Board in previous, relevant cases, the
phrase “Smile More” cannot function as the source of a single origin
of the goods at issue.12

A. Facts in evidence.
The Registration issued on the Principal Register without a showing of acquired
distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f). The specimens
of use submitted with the underlying application are reproduced below.

12 Petitioner’s brief at 9, 36 TTABVUE 9.
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In his cease and desist letter to Petitioner, Respondent states as follows (emphasis in
original):
Mr. Atwood applied for a trademark and a service mark on July 21, 2014. On
November 3, 2014, the USPTO attorney, Mr. Duong, called this law firm to
discuss the uniqueness of this file. Mr. Duong stated that because the term
“Smile More” is merely an expression that, under normal circumstances, it
would not be given federal trademark protection from the USPTO. However,
Mr. Duong further stated that due to Mr. Atwood’s public figure status and his
branding of the term “Smile More” over the last few years, that secondary
meaning had attached to all of the various classes. Thus, the trademarks and
service mark registration for “Smile More” in all four distinct international
classes were granted to Mr. Atwood. …

Smile More’s secondary meaning was established through Mr. Atwood’s
incredible following on Youtube through his channels, RomanAtwood and
RomanAtwoodVlogs. Mr. Atwood has a total of roughly 9.1 million unique
followers on his youtube channels. Mr. Atwood has been promoting his “Smile
More” brand on his videos, every single day, for years and thus Smile More is
a brand that is associated with Mr. Atwood.

Through Mr. Atwood’s fanatical following, many fans have sent Mr. Atwood
pictures of “Smile More” t-shirts being sold in Wal Mart stores and on Wal
Mart’s online store. Attached as Exhibit A is a picture of the “Smile More” t-
shirts being sold in Wal Mart stores across the United States. Attached as
Exhibit B is a picture of the “Smile More” t-shirts being sold on Wal Mart’s
online store (which shows they are out of stock because Wal Mart has been
selling so many of them).

Mr. Atwood has not given any type of license or authority to Wal Mart to sell
such merchandise. Further, this is to be considered an official notice to Wal
Mart of the infringement.13

In his response to Petitioner’s Interrogatory No. 6, Respondent asserts as follows:
The Registrant has encountered and stopped each and every infringing user it
has become aware of. Overall, the Registrant has encountered over ten
infringing users selling over 230 separate Smile More items, all of which were
in violation, and recognized such, of Registrant’s Registration number
4695492.

13 18 TTABVUE 28-29.
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Upon policing and coming across all 230 items, the Registrant sent eleven (11)
specific demand letters demanding the users and its third party vendors to
cease and desist the infringement. Within one week of each and every demand
letter being sent, all 230 infringing goods were pulled from the internet and
said users and third party vendors ceased selling and infringing on the Smile
More trademark.

The only user that has not ceased upon receipt of the Registrant’s demand
letter is the current Petitioner. Through production of documents, the
[Petitioner] will find enclosed each and every demand letter sent, as well as
the response from the receiving party, indicating proof that the Smile More
mark has been more than substantially exclusive and policed by Registrant.
Therefore, Paragraph 17 of the Petition to Cancel could not be more false.
Further, many of the infringers were specifically selling Smile More apparel
while using keywords such as “Roman Atwood, Roman Atwood Vlogs, Smile
More, Smilemore” and similar key words in order to draw attention away from
the primary source, Roman Atwood. This proof will be given to the Petitioner
with the request for production.14

Third parties have registered the following eight SMILE MORE formative marks (all
in standard characters unless otherwise noted):15
Reg. No. 4867643 for SMILE MORE EAT WELL BEAN HAPPY, identifying
“vegetable-based snack foods; bean-based snack foods”;

14 18 TTABVUE 23.
15 18 TTABVUE 32-107.
Petitioner also introduced into the record four cancelled third-party registrations, one live
third-party application, and fifteen abandoned third-party applications. The cancelled
registrations are entitled to little, if any, probative value because a cancelled registration is
not evidence of anything except that it issued. See Action Temporary Servs. Inc. v. Labor
Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“[A] cancelled registration
does not provide constructive notice of anything”); Time Warner Entertainment Co. v. Jones,
65 USPQ2d 1650, 1654 n.6 (TTAB 2002). Any benefits conferred by the cancelled
registrations, including the evidentiary presumptions afforded by Section 7(b) of the
Trademark Act were lost when the registration expired. See, e.g., Anderson, Clayton & Co.
v. Krier, 478 F.2d 1246, 178 USPQ 46, 47 (CCPA 1973).
Further, the pending and abandoned applications possess no evidentiary value. In re Mr.
Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016) (third-party application is “evidence only
that the application was filed on a certain date”); Interpayment Services Ltd. v. Docters &
Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).
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Reg. No. 4755212 for ABRI DENTAL SMILE MORE, identifying various
services related to dentistry;

Reg. No. 4114726 for SPEND LESS. SMILE MORE., identifying “dentist
services; orthodontic services”;

Reg. No. 4395934 for WINE AND SHINE SMILE BRIGHTENER (WINE and
BRIGHTENER disclaimed), identifying “tooth whitening preparations”;

Reg. No. 4355375 for STRESS LESS SMILE MORE, identifying “dentist
services”;

Reg. No. 3826541 for SMILE MORE, identifying “provision of marketing
services, namely, providing dentist referral services”;

Reg. No. 4313357 for SMILE MORE, identifying “toothbrushes; electrical
toothbrushes and parts therefor”; and

Reg. No. 4540967 for WHITEN SMILE MORE and design, identifying teeth
whitening systems and timers therefor.

Petitioner introduced into the record “Smile More” t-shirts, hats and stickers
available for sale from third-party vendors on amazon.com, cafepress.com,
redbuble.com, customplanet.com, taoofsophia.com and youshouldsmilemore.com.16
The following examples are illustrative:

16 18 TTABVUE 109-121, 145, 154-178, 181-182, 189-190, 233.
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Petitioner submitted additional evidence of trademark or trade name use of Smile
More formatives in connection with dental services, such as Smile More Dental, Smile
More Dental Savings Plan, Smile More Orthodontics, Smile More Live More Center
and Smile More Dental Clinic. Petitioner also submitted evidence of trademark or
trade name use by third parties of the term “Smile More” in connection with, e.g., the
title of a musical album and musical sound recording, a short film, a photo booth
service, stamps, kitchen and personal care items, comedy shows, a buyer loyalty
program and a Wal-Mart advertising campaign.17 Petitioner further introduced into
the record internet articles featuring non-trademark use of the term “smile more” in
the context of discussions regarding the health benefits of smiling, dentistry, and
social conventions between and among men and women related to smiling.18

17 18 TTABVUE 122-144, 146-153, 179-180, 183-188, 191-232, 234-244. We note that
Petitioner has not submitted any additional testimony or evidence regarding the relationship
between itself and Wal-Mart or Wal-Mart’s advertising campaign.
18 19 TTABVUE 1-193.
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Respondent introduced his declaration with exhibits, declaring, inter alia, as
follows:19
his counsel has sent more than fifty cease and desist letters in the last two
years, resulting in thousands of infringing items being removed from the
internet;

Petitioner is the only entity who has not ceased infringing Respondent’s
SMILE MORE mark;

Respondent’s confidential sales figures for goods under his SMILE MORE
mark are considerable;

Respondent’s Smile More store on his website received over 6 million visitors
last year;

Respondent has never paid for advertisements for goods under the SMILE
MORE mark and “all of our sales are organic”20 to his website;

Respondent has issued four limited licenses over the last fifteen months to
entities seeking to use SMILE MORE in commerce;

Respondent’s website has recently added an intellectual property section
allowing visitors to notify Respondent in the event of infringement of his
SMILE MORE mark; and

Respondent has received five email messages in the last several months from
fans informing him of infringing items.

Respondent introduced with his declaration copies of cease and desist letters
addressed to Café Press, Zazzle.com, Wal-Mart, USCD Apparel and RedBubble.21
Respondent also included copies of correspondence between his counsel and the

19 28 TTABVUE 2-4.
20 28 TTABVUE 3.
21 28 TTABVUE 5-26.
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above-mentioned retailers, all of which agree to remove the infringing content, with
the exception of Wal-Mart.22
B. Discussion.
“The Trademark Act is not an act to register mere words, but rather to register
trademarks. Before there can be registration, there must be a trademark, and unless
words have been so used they cannot qualify.” In re Bose Corp., 546 F.2d 893, 192
USPQ 213, 215 (CCPA 1976). It is well settled that “not every designation adopted
with the intention that it performs a trademark function and even labeled as a
trademark necessarily accomplishes that purpose….” Am. Velcro, Inc. v. Charles
Mayer Studios, Inc., 177 USPQ 149, 154 (TTAB 1973); see also Roux Labs., Inc. v.
Clairol, Inc., 427 F.2d 823, 166 USPQ 34, 39 (CCPA 1970).
The critical inquiry in determining whether a designation functions as
a mark is how the designation would be perceived by the relevant public.
To make this determination we look to the specimens and other evidence
of record showing how the designation is actually used in the
marketplace.

In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (citations omitted).
To be a mark, the phrase must be used in a manner calculated to project to
purchasers or potential purchasers a single source or origin for the goods. In re Volvo
Cars of North America Inc., 46 USPQ2d 1455, 1459 (TTAB 1998). Matter that serves
primarily as a source indicator, either inherently or as a result of acquired
distinctiveness, and that is only incidentally ornamental or decorative, can be
registered as a trademark. In re Paramount Pictures Corp., 213 USPQ 1111, 1115

22 28 TTABVUE 27-118.
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(TTAB 1982) (“In every case, the question is not whether the mark has been
associated with the goods by a particular mode or manner, but whether the matter
sought to be registered performs the function of a trademark by signifying to
purchasers the source of the goods sold or offered for sale.”).
Registration No. 4695492 issued on the Principal Register.23 The registration
therefore is entitled to the following presumption under Trademark Act Section 7; 15
U.S.C. § 1057:
(b) Certificate as prima facie evidence. A certificate of registration of a
mark upon the principal register provided by this chapter shall be prima
facie evidence of the validity of the registered mark and of the
registration of the mark, of the owner’s ownership of the mark, and of
the owner’s exclusive right to use the registered mark in commerce on
or in connection with the goods or services specified in the certificate,
subject to any conditions or limitations stated in the certificate.

The specimens of use submitted with the application underlying the Registration
display the SMILE MORE mark on the goods in an ornamental manner. Common
expressions used in an ornamental manner frequently do not serve a trademark
function. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1403 (TTAB
2018) (“The phrase I LOVE YOU conveys a term of endearment comprising the
bracelet and, thus, it is ornamental. It does not identify and distinguish the source of
the bracelet, especially where there is so much jewelry decorated with the term I
LOVE YOU in the marketplace.”). However, in this case the specimens of use for
Respondent’s services display SMILE MORE in a non-ornamental manner, associate

23 The subject registration issued without a showing of acquired distinctiveness under Section
2(f).
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the SMILE MORE mark with “The Official Smile More Store” and “Roman Atwood
Pranks” YouTube channel and clearly associate the SMILE MORE mark with
Respondent.
Thus, the designation SMILE MORE as it appears on Respondent’s goods conveys
to the public a secondary source, namely, Respondent Roman Atwood, his YouTube
channel and the content he posts there, and is registrable on the Principal Register.
In re Paramount Pictures Corp., 213 USPQ at 1112 (in this case, wording on a T-shirt
“inherently tells the purchasing public the source of the T-shirt, not the source of the
manufacturer but the secondary source.”). Matter that serves primarily as a source
indicator, either inherently or as a result of acquired distinctiveness, and that is only
incidentally ornamental or decorative, can be registered as a trademark. Id. at 1114.
See also TMEP § 1202.03 (October 2018) and authorities cited therein.
The record before us indicates that a modest number of third parties have produced
and sold goods, including t-shirts, hats and stickers, bearing the decorative or
ornamental wording “Smile More” and formatives thereof. However, the record
further indicates that Respondent actively and vigorously polices his SMILE MORE
mark and views such uses as infringement. Respondent has successfully prevented
or stopped such uses by Café Press, Zazzle.com, USCD Apparel and RedBubble, i.e.,
the very third parties Petitioner relies upon for its assertion of widespread use of
“Smile More” in connection with the relevant field of goods and services. The record
further establishes that fans of Respondent actively report such uses when they
encounter them. In addition, the record reflects that some of the third-party users
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point to Respondent when advertising their “Smile More” merchandise in an attempt
to associate their goods with him. For example, the hooded sweatshirt, or hoodie,
displayed above for sale on Amazon.com is a direct copy of the SMILE MORE mark
as it appears on Respondent’s website and specimens of use.24 In addition, the
Amazon.com page offering the hoodie for sale by a third party not affiliated with
Respondent, also offers for sale a “Roman Atwood Smile More Beanie” and the
“Natural Born Pranksters” movie in which Respondent stars.25 As a result, this record
shows approximately six third-party uses of “Smile More” for relevant goods and
services, some of which seek to associate their goods with Respondent, and most of
which have ceased use after being challenged by Respondent.
The record further reflects registration of SMILE MORE and SMILE formative
marks by eight third parties for goods and services related to dentistry in all but one
instance and snack foods in the other. None of these goods and services are related to
the goods and services recited in the Registration, and accordingly this evidence has
little probative value in our determination of whether SMILE MORE functions as a
mark. Similarly, the evidence of “Smile More” used as song and movie titles, dental
services, customer loyalty and reward programs, and as an expression appearing in
spoken and written speech do not serve to support Petitioner’s assertion of “myriad

24 18 TTABVUE 116.
25 Id.
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third party uses of the phrase ‘Smile More’”26 in connection with the relevant goods
and services.
This is not a case in which widespread ornamental use of the phrase SMILE MORE
by third parties “is part of the environment in which the [mark] is perceived by the
public and … may influence how the [mark] is perceived.” In re Hulting, 107 USPQ2d
1175, 1178 (TTAB 2013) (quoting In re Tilcon Warren Inc., 221 USPQ 86, 88 (TTAB
1984)). To the contrary, the record evidence discussed above supports a finding that
SMILE MORE, as used in connection with the goods and services recited in the
Registration, serves to indicate a single origin or source, namely Respondent. The
existence of a very small number – namely, six – of third-party uses of “Smile More”
in connection with related goods does not persuade us otherwise, especially given
evidence that at least half of the uses have ceased upon challenges from Respondent
as well as his assertions that all uses, aside from Petitioner, have ceased due to his
policing of his mark. Cf. In re Eagle Crest Inc., 96 USPQ2d at 1230 (“Because
consumers would be accustomed to seeing this phrase [ONCE A MARINE, ALWAYS
A MARINE] displayed on clothing items from many different sources, they could not
view the slogan as a trademark indicating source of the clothing only in applicant. It
is clear that clothing imprinted with this slogan will be purchased by consumers for
the message it conveys.”); Damn I’m Good Inc. v. Sakowitz, Inc., 514 F. Supp. 1357,
212 USPQ 684 (S.D.N.Y. 1981) (where plaintiff used DAMN I’M GOOD as a message
engraved on a bracelet and commenced use of the term on a hangtag only after

26 36 TTABVUE 9.
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competitors began to produce similar products, court held that “plaintiff does not hold
a valid trademark.”).
Having considered all the evidence and arguments of record, we find that Petitioner
has failed to meet its burden of demonstrating that SMILE MORE, as it appears in
the Registration in connection with the recited goods and services, does not function
as a trademark for Respondent’s goods. In light of our determination, we need not
consider its alternative claim that SMILE MORE has not achieved secondary
meaning or acquired distinctiveness under Section 2(f).
Decision: The petition to cancel Reg. No. 4695492 is dismissed.