Four Seasons Dairy, Inc.v.International Gold Star Trading Corp.

Trademark Trial and Appeal Board

Sep 14, 2011

No. 92042082 (T.T.A.B. Sep. 14, 2011)

Hearing: March 9, 2011 Mailed: September 14, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Four Seasons Dairy, Inc.

v.

International Gold Star Trading Corp.
_____

Cancellation No. 92042082
to Registration No. 2479287
issued August 21, 2001
_____

Samuel Friedman for Four Seasons Dairy, Inc.

Roger S. Thompson of Cohen, Pontani, Lieberman & Pavane LLP
for International Gold Star Trading Corp.
______

Before Zervas, Wellington, and Wolfson, Administrative
Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Four Seasons Dairy, Inc. (“petitioner”) filed a
petition to cancel Registration No. 2479287 for the mark
BABUSHKA’S RECIPE for “dairy products, excluding ice cream,
ice milk and frozen yogurt processed and marinated
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Cancellation No. 92042082
2
vegetables,”1 alleging prior use of the mark
for “vegetable oil spread, vegetable extracts for food,
margarine, dairy products excluding ice cream, ice milk and
frozen yogurt, butter, cottage cheese, and yogurt.”2 The
proposed mark is in Cyrillic lettering and transliterates
into English as “Babushkino.”As grounds for cancellation,
petitioner alleges a likelihood of confusion between the
marks and that the registration was obtained fraudulently.
In its answer, respondent, International Gold Star Trading
Corp., admitted that the goods are closely related3 but
otherwise denied the salient allegations of the complaint,
claiming that it has priority of use of its mark and that
petitioner lacks standing to bring this proceeding.

1 Section 8 declaration accepted; Section 15 declaration
acknowledged. We note that this proceeding commenced on May 29,
2003, less than two years after the registration issued. The
registration was not eligible for incontestable status when the
Section 15 declaration was filed, and the USPTO should not have
acknowledged the affidavit. See TMEP § 1605.04 (7th ed. 2011)
(USPTO will not acknowledge the affidavit if it finds there is a
pending proceeding involving the owner’s right to register the
mark). However, even if in error, “[a]cknowledging receipt of the
affidavit provides notice to the public that an affidavit of
incontestability has been filed; it is not a determination by the
USPTO that the registration is in fact incontestable. The
question of whether the registration is incontestable arises and
is determined by a court if there is a proceeding involving the
mark.” TMEP § 1605 (7th ed. 2011).
2 Petition to Cancel, p. 2.
3 Answer, p. 2.
Cancellation No. 92042082
3
The Record
By rule, the record includes respondent’s registration
file and the pleadings. Trademark Rule 2.122(b), 37 CFR
§2.122(b).
Petitioner’s Evidence
Petitioner introduced the following testimony and
evidence during its testimony and rebuttal testimony
periods:
1. The testimony deposition of Alexandr Bekker,
vice president of Four Seasons Dairy, Inc.,
with attached exhibits.

2. The testimony deposition of Oleg Kesler,
president of Four Seasons Dairy, Inc., with
an attached exhibit.

3. The testimony depositions of seven third-
party witnesses testifying regarding
opposer’s first use. Those witnesses are
set forth below:

a. The April 15, 2008 testimony deposition
of a confidential witness, the vice
president of sales for the food
manufacturer that supplies petitioner
its dairy products, with attached
exhibits.

b. The June 11, 2008 testimony deposition
of the same confidential witness, with
attached exhibits.

c. The testimony deposition of Leon
Sheikhet, former owner of Miller’s
Market (out of business in 2004), a
seller of, inter alia, dairy products,
with attached exhibits.

Cancellation No. 92042082
4
d. The testimony deposition of Arkadiy
Golub, former manager of Beluga Caviar
(out of business in 2002), a wholesale
seller of, inter alia, dairy products,
with attached exhibits.

e. The testimony deposition of Sofya
Sheydvasser, owner of Matreshka, a
grocery store, with attached exhibits.

f. The testimony deposition of Arie Zurinam,
owner of Quick Graphics, Inc., a
printing shop, with attached exhibits.

g. The testimony deposition of Natalie
Walewitsch, principal and buyer for
Natar Foods, a wholesale distributor
for, inter alia, dairy products, with
attached exhibits.

h. The rebuttal testimony deposition of
Arkadiy Golub, with attached exhibits

4. The rebuttal testimony deposition of
Alexandr Bekker, with attached exhibits.

Petitioner also filed a notice of reliance on:
1. Copies of portions of Title 1 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York (“NYCRR”).

2. Copies of portions of the 1999 Revision of
Grade “A” Pasteurized Milk Ordinance (the
“PMO of 1999").

3. Copies of portions of the 2007 Revision of
Grade “A” Pasteurized Milk Ordinance (the
“PMO of 2007”).

4. Copies of fourteen U.S. trademark
registrations owned by unrelated third
parties purportedly to show that horse and
carriage designs are common elements in
trademarks for dairy products, to refute
Cancellation No. 92042082
5
respondent’s allegation of a pattern of
copying by petitioner.

5. Status and title copy of petitioner’s
registration No. 3339109 for the mark AMISH
STYLE HIGH FAT SOUR CREAM and design for
“sour cream” in class 29.

6. Status and title copy of petitioner’s
trademark application serial No. 77719928 for
the mark TVOROG AMISH FARMERS CHEESE and
design for “soft cheese, cream cheese and
cottage cheese” in class 29.

7. Copy of respondent’s Combined Declaration of
Use and Incontestability under Section 8 and
15 for the subject registration No. 2479287.

8. Copy of an Office Action issued by the USPTO
in connection with registration No. 3080997,
issued on the Supplemental register, for the
mark YOGURT CULTURED owned by an unrelated
third party.

9. Copies of petitioner’s first set of
interrogatories, respondent’s responses to
petitioner’s interrogatories, respondent’s
supplemental response to petitioner’s
interrogatories, and respondent’s documents
productions as part of its answers to
petitioner’s interrogatories.

Respondent’s Evidence

Respondent introduced the following testimony and
evidence during its testimony period:
1. The testimony deposition of Lisa Anne Troyer,
vice president of sales at Bunker Hill Cheese
Company, with attached exhibits.

2. The testimony deposition of Dmitry Lerner,
former silent partner of Yuzhni grocery
store, with an attached exhibit.

Cancellation No. 92042082
6
3. The testimony deposition of Jacob Krumgalz,
warehouse manager of International Gold Star
Trading Corp., with attached exhibits.

4. The testimony deposition of Galina Pincow,
vice president of International Gold Star
Trading Corp., with attached exhibits.

5. The testimony deposition of Robert Pincow,
president of International Gold Star Trading
Corp., with attached exhibits.

6. The testimony deposition of Daniel
Bartolomeo, owner of Northport Printing and
Gem Printing, with attached exhibits.

7. The testimony deposition of Irina Lubenskaya,
art director for IBM.com, with attached
exhibits.

8. The testimony deposition of Lewis “Butch” P.
Miller, executive vice president of
Queensborough Farm Products, with attached
exhibits.

9. The testimony deposition of Vladimir Krasnov
of V.M. Food Service Corp., with an attached
exhibit.

10. The testimony deposition of Igor
Zagranichny, formerly of Roman & Sons, Inc.,
with an attached exhibit.

11. The testimony deposition of Oleg Kesler,
president of Four Seasons Dairy, Inc., with
an attached exhibit.

12. The testimony deposition of Alexander
Bekker, vice president of Four Seasons Dairy,
Inc., with attached exhibits.

Respondent also filed a notice of reliance on four
trademark registrations owned by unrelated third parties,
Cancellation No. 92042082
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which respondent alleges were copied by petitioner,
purportedly to show a pattern of copying by petitioner.
Evidentiary Objections
In its main trial brief, petitioner objected to the
introduction of “Respondent’s trial exhibits and any and all
testimony of Respondent’s witnesses related thereto, where
the documents were not produced during discovery or
supplemented under Rule 26 of the Fed.R.Civ.P.” In
response, as part of its main trial brief, respondent
responded to petitioner’s objections and made its own
evidentiary objections on the basis of the best evidence
rule, Fed. R. Evid 1002, against the introduction of
evidence and testimony proffered by petitioner. As part of
its reply brief on the case, petitioner filed a response to
respondent’s objections, and included an appendix listing
testimony and documents allegedly not produced by respondent
during discovery. Respondent filed a motion to deny
petitioner’s reply brief as untimely.4 Because we consider
petitioner’s evidentiary objections to be part of its case-
in-chief and not proper rebuttal subject matter, the

4 To the extent respondent’s motion includes arguments in support
of its evidentiary objections, such arguments have not been
considered, because they would be considered part of an otherwise
improper reply brief. See Trademark Rule 2.128(a)(1), 37 C.F.R.
§ 2.128(a)(1); and TBMP § 801.02(d)(“There is no provision for
Cancellation No. 92042082
8
appendix and arguments related to petitioner’s objections
that form part of petitioner’s reply brief have not been
considered. See further discussion, infra. Accordingly,
the timing issue presented by respondent’s motion is moot.
Petitioner’s Objection Under Fed. R. Civ. Pro. 37 to
Documents Allegedly Not Produced During Discovery

During the testimony deposition of several of
respondent’s witnesses, petitioner made numerous objections
to the admission of evidence as not having been produced
during discovery. Petitioner maintained the objections in
its brief, but did not specify the particular exhibits to
which it objected, or the specific discovery requests to
which respondent allegedly had failed to respond.
Respondent objected to exclusion of the evidence on this
basis. In its reply brief, petitioner included the
previously missing information.
“[T]o preserve an objection that was seasonably raised
at trial, a party should maintain the objection in its brief
on the case, as an appendix to its brief on the case or in a
separate statement of objections filed with its brief on the
case.” TBMP § 707.03(c)(3rd ed. 2011) (emphasis supplied);

filing a reply brief, rebuttal brief, rejoinder brief, etc. by a
party in the position of defendant.”).
Cancellation No. 92042082
9
see also TBMP § 707.04 and authorities cited in that
section.
In order to preserve an objection that was seasonably
raised at trial, a party must maintain the objection in its
opening brief on the case. See Hard Rock Café International
(USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507 n.5 (TTAB 2000)
(objection to exhibit raised during deposition but not
maintained in brief is deemed waived); and Reflange Inc. v.
R-Con International, 17 USPQ2d 1125, 1126 n.4 (TTAB 1990)
(objections to testimony and exhibits made during
depositions deemed waived where neither party raised any
objection to specific evidence in its brief). See also TBMP
§707.03(c) (2d. ed. rev. 2004).
In this case, numerous objections were made during the
testimonial depositions. The general reference, in its
brief, to the objections raised by petitioner during trial
is insufficient to preserve the individual objections
originally made during the testimonial depositions.
Petitioner has the obligation to identify in its main trial
brief those particular discovery requests that sought the
evidence in dispute, and to detail the inadequacy of
respondent’s production. Allowing petitioner to wait until
its reply brief to clarify the objections effectively
Cancellation No. 92042082
10
forecloses respondent from responding to the objections.
Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104
(TTAB 2007) (objection raised at trial waived when
petitioner waited until its reply brief to renew
objections).
Accordingly, petitioner has failed to preserve its
objections on the record. See Starbucks U.S. Brands LLC v.
Ruben, 78 USPQ2d 1741, 1747 (TTAB 2006) (sweeping
allegations in brief insufficient to preserve individual
objections originally made in testimonial deposition);
United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 218
n.4 (TTAB 1982) (party failed to pursue objection to certain
insufficiently identified exhibits introduced at trial in
its brief). Petitioner’s objections to respondent’s
evidence are overruled.
Respondent’s Objection Under the “Best Evidence Rule” to
Petitioner’s Exhibits 7-11

Respondent has objected to the Board’s consideration of
petitioner’s Exhibits 7-11 on the basis of the “best
evidence” rule, Fed. R. Evid. 1002. That rule, in order to
provide a safeguard against unreliable evidence, requires
production of the original of a document to prove its
contents. This concern for accuracy is justified by the
Cancellation No. 92042082
11
fact that the precise content of items such as writings is
frequently the central issue in a case.
Here, Exhibits 7-11 may be characterized as “To whom it
may concern” letters that were written at petitioner’s
request by third parties in support of petitioner’s priority
claim. The letters each internally identify a date, and
each of the persons who signed the letters was deposed
during trial (except for Mark Gorelik, who is now deceased)
as to the accuracy of that date. Respondent would have us
exclude the letters where the witness identified underlying
documents to verify such date because petitioner did not
introduce copies of the underlying documents, the purported
dates thereon are allegedly contradictory to other evidence
of record, and the witnesses allegedly do not have personal
knowledge of the sales represented by the underlying
documents.
Here, there is no dispute that the copies of the
letters adduced are accurate copies of the originals, and
the testimony of each witness stands independently to
identify the date set forth in the letters. Where the
testimony presents insufficient facts for the Board to draw
a conclusion as to the accuracy of the date embedded in the
letter, the probative value of the information is
Cancellation No. 92042082
12
diminished. Nonetheless, the letters themselves will not be
excluded under the rule, as there is no doubt as to their
authenticity, and we will consider them for whatever
probative value they may have. Respondent’s objection is
overruled.
Respondent’s Objection to the Testimony of Natalie
Walewitsch

Respondent objects to the introduction of Ms.
Walewitsch’s testimony because she walked out of the
deposition before respondent had had a chance to fully
cross-examine. Petitioner argues that the witness was being
asked questions that went beyond the scope of direct and
were directed to obtaining information from a competitor
regarding confidential business matters that respondent had
no right to know. Trademark Rule 2.123(e)(3), 37 C.F.R.
2.123(e)(3) provides that “Every adverse party shall have
full opportunity to cross-examine each witness.” The Board
has reviewed the testimony and agrees that the deposition
was effectively concluded before respondent had completed
its cross-examination. Accordingly, respondent’s motion to
exclude Ms. Walewitsch’s testimony is granted.
Standing
Petitioner pleads ownership of trademark application
serial No. 76174746, and alleges that the application has
Cancellation No. 92042082
13
been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d) on the basis of respondent’s registration.5
Petitioner’s application and the Office Action refusal were
made of record.6 Because respondent’s registration was
cited as a bar to registration of petitioner’s application,
petitioner has established its standing. See Life Zone Inc.
v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008)
(standing found because the opposed application was cited as
a potential bar to opposer's registration); see also Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185, 189 (CCPA 1982).
Priority
To establish priority on a likelihood of confusion
claim brought under Trademark Act Section 2(d), a party must
prove that, vis-à-vis the other party, it owns “a mark or
trade name previously used in the United States … and not
abandoned….” Trademark Act § 2, 15 U.S.C. § 1052. A party
may establish its own prior proprietary rights in a mark
through ownership of a prior registration, actual use, or
through use analogous to trademark use, such as use in
advertising brochures, trade publications, catalogues,
newspaper advertisements and Internet web sites, which

5 Petition for Cancellation, para. 7.
Cancellation No. 92042082
14
create a public awareness of the designation as a trademark
identifying the party as a source. See Trademark Act §§
2(d) and 45, 15 U.S.C. §§ 1052(d) and 1127; T.A.B. Systems
v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir.
1996), vacating Pactel Teletrac v. T.A.B. Systems, 32 USPQ2d
1668 (TTAB 1994); and Otto Roth & Co. v. Universal Foods
Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981). Priority is
an issue in this case because petitioner does not own an
existing registration upon which it can rely for purposes of
a Section 2(d) likelihood of confusion analysis. Cf. King
Candy Co., Inc. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974). Respondent is at least
entitled to the filing date of the underlying application of
its registration, which is December 7, 1999. See Brewski
Beer Co. v. Brewski Brothers Inc., 47 USPQ2d 1281, 1284
(TTAB 1998)(“ Of course, petitioner or respondent may rely
on its registration for the limited purpose of proving that
its mark was in use as of the application filing date.”).
Petitioner’s Allegation of First Use Through A&O Corp.
Petitioner alleges that it first used its mark in 1997
through a predecessor, A&O Corporation (“A&O”), a grocery

6 Kesler Dep., p. 9-13, petitioner’s (“P’s”) Ex. 17.
Cancellation No. 92042082
15
store and wholesale operation in the Russian food market.7
Since the record reflects that petitioner was not
incorporated until January 4, 1999,8 we must first consider
whether the evidence of record shows that any rights A&O
established in the mark transferred to Four
Seasons Dairy, Inc. upon its incorporation.
In 1996, Messrs. Kesler and Bekker formed A&O Corp. as
a New York corporation, taking the first letter of each of
their first names to create the company name.9 On September
12, 1996, one hundred shares of company stock were issued,
fifty to Mr. Kesler and fifty to Mr. Bekker.10 Mr. Kesler
surrendered his shares to Mr. Bekker as of September 24,
1996,11 but remained vice president of A&O and shared
equally in the profits generated by sales of products sold
by A&O.12 A&O maintained a bank account and Messrs. Kesler
and Bekker were the signatories on the account.13
Mr. Bekker testified as to the evolution of the
company’s name from A&O to Four Seasons as follows:

7 See discussion, infra.
8 Bekker Dep., p. 49.
9 Bekker Dep., p. 111; P’s Ex. 16; Kesler Dep., p. 25. (as
respondent’s witness).
10 Bekker Dep., p. 105; P’s Ex. 15.
11 Kesler Dep., p. 25. (as respondent’s witness).
12 Bekker Dep., p. 112.
13 Bekker Dep., p. 113.
Cancellation No. 92042082
16
Somewhere in September of 1998 we started to try
the name of Four Seasons because we wanted to
create a new name and we were registered at the
factory Oasis as Four Seasons. When our
bookkeeper started to change to Four Seasons, New
York State already had it and we couldn’t repeat
it. So he was looking for a similar name like
Four Seasons Distributors and he found a name that
was available. This name was Four Seasons Dairy.
Beginning January 4th, 1999 we were registered as
Four Seasons Dairy.14

There is some conflicting testimony from the
confidential witness, the vice president of the food
manufacturer that manufactures petitioner’s
butter blend product, who testified (under seal) that he had
had an initial meeting with four individuals who identified
themselves as A&O,15 and that both A&O and a company called
Food House Distribution were predecessors to Four Seasons
Dairy.16 However, the witness later stated that “Alex and
Oleg, they separated from Mark and Michael and became Four
Seasons Dairy. Michael and Mark became Food House.”17 It
is also corroborated from other witnesses’ testimony that
Four Seasons Dairy Inc. was the successor to the interests
of A&O. We will now examine the testimony of these other
witnesses.

14 Bekker Dep., p. 49.
15 Confidential witness Dep., p. 13.
16 Confidential witness Dep., p. 7-8.
17 Confidential witness Dep., p. 13.
Cancellation No. 92042082
17
Arie Zurinam, president of Quick Graphics, Inc.,
testified that he printed labels bearing the
mark for A&O and then, Four Seasons.
Q: When you started doing work for Alex Bekker
and Oleg Kessler, was there any company name that
they used?
A: I think they were, before Four Seasons, they
had like A & O. I think Alex and Oleg, something
like this. It was like I think when they opened
up or something.
Q: Was there any point in time when that name
changed?
A: Yeah, they changed it to Four Seasons. I
can’t give you the date. I don’t know, but later
on they changed it to Four Seasons.18

Sofya Sheydvasser, owner of the grocery store
Matreshka, testified that A&O were known as the predecessor
to Four Seasons.
Q: Okay. Back when they had this store called
Friendly Food store, do you know whether Alex and
Oleg, did they have a company with a company name?
A: Yes. This was before Four Seasons. It was,
just a second, A&O, A&O, I think O&A or A&O Dairy
Product or…
Q: You said this was before they became Four
Seasons?
A: Yes, sure.
Q: So –
A: It is not was a long time A&O, maybe two
years, maybe, I think. And after they make a
company, it was Four Seasons. It is now Four
Seasons.19

18 Zurinam Dep., p. 13.
19 Sheydvasser Dep., p. 14.
Cancellation No. 92042082
18
Arkadiy Golub, former manager at Beluga Caviar, a
wholesale distributor of Russian foods, testified to the
transition from A&O to Four Seasons as follows:
Q: Do you remember the name of the company that
Alex Bekker and Oleg had when you started ordering
Babushkino?
A: A & O, yes A – A & O.
…
Q: Do you know whether the company ever changed
names?
…
A: Yes, ’90 –- ’98, maybe Four Seasons, Four
Seasons Dairy, yes.

Leon Sheikhet, owner of Unsurpassed Meat Corporation,
d/b/a Miller’s Market from 1994 to 2004, testified that he
did business with Messrs. Bekker and Kesler first as A&O and
then as Four Seasons:
Q: Do you know if there were other people at A
and O Corporation that you ever dealt with besides
Alex and Oleg?
A: No.
Q: Do you know if Alexander or Oleg was
affiliated with a company other than A & O and
Four Seasons?
A: No. I only know them A & O and Four
Seasons.20

Although there is no written assignment transferring
any of A&O’s assets, including whatever trademark rights it
may have had, to Four Seasons Dairy, Inc., an assignment of
an unregistered trademark is not void for lack of a writing
embodying the transfer. See Hi-Lo Manufacturing Corp. v.
Cancellation No. 92042082
19
Winegard Company, Inc., 167 USPQ 295, 296 (TTAB 1970);
McCarthy on Trademarks and Unfair Competition § 18:4 (4th
ed.) (“An assignment in writing is not necessary to pass
common law rights in a trademark”). Where there has been no
written assignment, the transfer of common law rights to
trademarks “may be established by clear and uncontradicted
testimony by a person or persons in a position to have
knowledge of the transactions affecting said designations;
and the common law rights in a mark will be presumed to have
passed, absent contrary evidence, with the sale and transfer
of the business with which the mark has been identified.”
Sun Valley Co. v. Sun Valley Manufacturing Co., 167 USPQ
304, 309 (TTAB 1970).
The weight of the evidence supports the conclusion that
the common law rights A&O Corp. had in the mark
were effectively transferred to Four Seasons
Dairy, Inc. as of January 4, 1999, its date of
incorporation. Accordingly, Four Season Dairy, Inc. is
entitled to rely upon A&O’s date of first use of the
mark .
Petitioner’s Date of First Use

20 Sheikhet Dep., p. 44.
Cancellation No. 92042082
20
We now turn our attention to determining what was
petitioner’s date of first use.
In this regard, we start with the statements made by
Four Seasons’ principals. Mr. Bekker testified that in
1997, together with a designer, Mr. Kesler and Mr. Bekker
designed the label for the brand.21 He
further testified that butter blend, yogurt
and feta cheese were first sold in 1997,22 and
farmer cheese “somewhere from the end of
1997.”23 Mr. Kesler testified that A&O started using the
mark in “1997. In the middle of the year, September,
October.”24 Mr. Bekker also indicated that sales were made
to companies in New York, to a company in Los Angeles, and
to a company in Canada.25
Petitioner also presented the testimony of several of
its witnesses to establish its priority. Leon Sheikhet
testified that Messrs. Bekker and Kesler came up with the
name in 1996.26 He further testified that he was one of
petitioner’s first customers in “1997, something like this,

21 Bekker Dep., p. 12; P’s Ex. 1.
22 Bekker Dep., p. 9.
23 Bekker Dep., p. 12.
24 Kesler Dep., p. 13.

25 Bekker Dep., p. 15.
Cancellation No. 92042082
21
1996, even 1996” and that products first came on the market
under the mark in 1997:
Q: The first Babushkin products you purchased
were in 1997?
A: Babushkin when it’s came on the market at that
time 1997.

Ms. Sheydvasser also identifies 1997 as the date she
started buying from Alex Bekker and Oleg Kesler.27
Q: Do you remember around when it was that you
started buying things from Alex Bekker and Oleg
Kesler?
A: Yes. I think it was maybe, maybe ten years
ago, ’97. I think it is ’97. You know, I
remember because they sell the milk product and
before they have Friendly Food store. And the
location of the Friendly Food store was, I don’t
know exactly the mail address but this is one,
two, three, four, like a five blocks from my
store. It was Friendly Food.
Q: Friendly Food, is that the name of the store?
A: They make – they were before, yes. This Alex
and Oleg.
Q: And at that time that they had the Friendly
food store, were they selling things to you at
Matreshka?
A: Yes.
Q: At that time, what kinds of things were they
selling to you at Matreshka?
A: You know, they sell the butter, the butter,
Grandma butter and other kind of butter. I don’t
know, what is the – Grandma butter, Basania.
THE COURT REPORTER: What was that?
A: It is name of the butter. Two Cows.
Q: Is that Two cows?
A: Yes, Two Cows and Grandma. And it was in the
– in the foil, foil paper.

26 Sheikhet Dep., p. 9.
27 Sheydvasser Dep., p. 10.
Cancellation No. 92042082
22
MR. FRIEDMAN: I am going to show the witness
a document previously marked as Petitioner’s
Exhibit 1 at a deposition of April 10, 2008.
Q: If you could please take a look at that? Do
you recognize what you are looking at?
A: Yes.
Q: What is it?
A: This is Babushkino butter, Grandma butter.28

Arie Zurinam also identified the label bearing the
trademark (marked as Petitioner’s Exhibit 1)
as being one of the first labels that his company printed
for A&O.29 He authenticated a copy of the internal order
form that his company used to invoice petitioner for an
order of 10,000 of these labels on November 25, 1998.30 He
further identified another label that he had printed
earlier:
Q: I am going to show you another document
previously marked as petitioner’s Exhibit 13 at a
deposition of April 10, 2008. I am directing the
attention of the witness to the bottom right of
the exhibit. These (sic) is a design there. Can
you identify that design, please?
A: Yes. It is the Babushkino – it is the
Babushkino label, actually the same design, same
style.
Q: Are there any differences between that label
and the label that we see in Petitioner’s Exhibit
1?
A: Yes. Most likely this label was created
before this.
Q: Okay. You are saying most likely this label
in Petitioner’s Exhibit 13 was created before the
label in Petitioner’s Exhibit 1?

28 Sheydvasser Dep., p. 10-12.
29 Zurinam Dep., p. 10-12.
30 Zurinam Dep., p. 13-14.
Cancellation No. 92042082
23
A: Right.
Q: And how do you know that?
A: Because the zero percent cholesterol, the one
that says over here on the label in the middle,
this was changed later on to 75 percent vegetable
oil. This I remember because I actually did the
change myself. Also, what I think, the whole
label is written in Russian and –
Q: Referring to Petitioner’s Exhibit 13?
A: Yes. The label is, like maslo is butter in
Russian.

Additional witnesses corroborated the 1997 date.
Arkadiy Golub testified that in 1997 he became general
manager of Beluga Caviar, a wholesaler of dairy products,
responsible for ordering products for the store. He
testified that starting from the time he became manager, he
ordered “Babushkino zdorovye”31 on a weekly basis.32
The vice president for the company that manufactures
margarine and butter blend products for petitioner
(confidential) testified that his company received their
first order for butter blend from A&O on March 5, 1997.33
He further testified that A&O Corp. placed an order with the
manufacturer for “margarine unsalted” on October 10, 1997.34

31 This word was not defined, but was used in the following
exchange:
Q: Do you remember any of the brand names that were
on the products that you ordered?
A: Yes. I ordered butter and caviar and Babushkino
zdorovye.
Golub Dep., p. 9.
32 Golub Dep., p. 9-11.
33 Confidential witness Dep., p. 14; P’s Ex. 18.
34 Confidential witness Dep., p. 15; P’s Ex. 18.
Cancellation No. 92042082
24
The testimony regarding the labeling of these initial
products is unclear; on the one hand the witness indicates
the goods were sold under the “A&O Brand”35 but elsewhere in
his testimony he identifies petitioner’s Exhibit 1, the
label bearing the mark , as the “label that
they originally started with.” Counsel inquired as to that
label:
Q: Directing your attention to the lettering in
Cyrillic, in Russian, is that representative of
the name that they were applying to their product
back in 1997?
A: Yes. They called it Babushkino.36

On October 6, 1998, petitioner placed its first order
with the manufacturer for a product that would be
manufactured without a label, “unsalted margarine plain no
label.”37 While the witness conceded that he did not see
the labels being placed on the product, as “the customer
applied the labels themselves,”38 he testified that he did
see the label proofs “because we had to make sure the
ingredient statement and everything was correct, us being
the manufacturer”39 and that “they were calling it

35 Confidential witness Dep., p. 15.
36 Confidential witness Dep., p. 11.
37 Confidential witness Dep., p. 30.
38 Confidential witness Dep., p. 9-10, p. 16.
39 Ibid.
Cancellation No. 92042082
25
Grandmother’s Babushkino I believe, but Grandmother’s is
what they called the product.”40
As further proof of sales, Mr. Bekker identified
entries taken from a copy of an invoice booklet, P’s Exhibit
3, showing sales made to petitioner’s customers of
dairy products in January 1999.41 The
invoice booklet accompanied Mr. Bekker on deliveries to
petitioner’s customers42 and contained carbon copies of
original invoices that he personally handed to customers.43
Mr. Sheikhet and Ms. Sheydvasser identified entries in the
booklet that represented purchases they made of
products.44 Several of the individual
invoices included an entry called “balance.” Mr. Bekker
explained, using the customer Golden Key as an example,45
that these entries on the invoice indicated that the
customer owed a previously due balance.46
Q: Do you recall since when you had been selling
dairy products to Golden Key?
A: Since 1997 we sold products to Golden key as
A&O Corporation. When we became Four Seasons, the

40 Confidential witness Dep., p. 10.
41 Bekker Dep., p. 18; P’s Ex. 3.
42 Bekker Dep., p. 18.
43 Bekker Dep., p. 22.
44 Sheikhet Dep., p. 11-13 and 40-41; Sheydvasser Dep., p. 15-22.
45 Page 4 of P’s Ex. 3; identified by Mr. Bekker at Dep. p. 26 as
including entries for BABUSHKINO goods.
46 Bekker Dep., p. 30.
Cancellation No. 92042082
26
balances got transferred in here, in this book
because we were the same people.47

Five of petitioner’s witnesses signed letters that
state that they did business “under the BABUSHKINO
(Grandmothers) brand, since December 1997, under the A&O
Corporation, and beginning in January 1999, under Four
Seasons Dairy Inc.”48 The confidential witness testified
that he prepared his letter himself, and that he “went into
our customer history to get the dates.”49 Arie Zurinam,
owner of Quick Graphics, Inc., testified that he essentially
reproduced the letter that the confidential witness had
prepared, but verified the accuracy of the dates in the
letter by referring to an order form he located in his
files.50 Mr. Golub testified that he knew the information
in the letter he signed was true before he signed it,51 but
did not “look at any pieces of paper” to help him verify the
dates.52 Mr. Sheikhet also testified that he “checked my
invoices to sign the letter” and that he knew “for a fact”
that he ordered Babushkin products on a weekly basis since

47 Bekker Dep., p. 32. Mr. Sheikhet also testified that the
balance he owed was included on the invoices, Dep. p. 42. Ms.
Sheydvasser testified that there were balances on her invoices as
well, Dep., p. 20.
48 P’s Exhibits 6-10.
49 Confidential witness Dep., p. 25; P’s Ex. 6.
50 Zurinam Dep., p. 23; P’s Ex. 4.
51 Golub Dep., p. 16; P’s Ex. 8.
52 Golub Dep., p. 23.
Cancellation No. 92042082
27
1997.53 Ms. Sheydvasser testified that she did not write
the letter she signed; but relied on her memory:
Q: When you put together, signed that letter for
Alex, did you look at any documents, any pieces of
paper?
A: I say leave it me, this letter, and I saw what
I need to do with this letter. Because I stay in
the store by myself. And he leave the letter and
I opened all my, the – all my – all my memory and
I say, yes, I work – I never buy from somebody I
still work with these people a long, long time.
Q: When you signed the letter, did you look at
any pieces of paper to help you look for dates and
things like that?
A: I don’t have a document for the ten years,
sir. But I remember, I worked with these
people.54

Ms. Sheydvasser’s testimony is not entirely consistent
with that of Mr. Bekker, who testified that he saw Ms.
Sheydvasser verify the information in the letter.
Q: Did you have an opportunity to see what Sonya
did to verify the accuracy of this information?
A: Yes, I did.
Q: What did you see?
A: She had originals from our invoices. She
found them and took a look.

Nonetheless, taken as a whole, Ms. Sheydvasser’s
testimony supports petitioner’s claim of 1997 as its date of
first use of the mark . Moreover, the
testimony and provided by Messrs. Bekker and Kesler and the
witnesses, coupled with the invoices and letters, support

53 Sheikhet Dep., p. 46.
54 Sheydvasser Dep., p. 47-48.
Cancellation No. 92042082
28
the conclusion that petitioner’s first use of its mark was
in 1997 for butter blend, yogurt, feta cheese and farmer
cheese. We therefore find that petitioner’s first use of
its mark was in 1997 for butter blend, yogurt, feta cheese
and farmer cheese.

Respondent’s Date of First Use
In late 1996 or early 1997, respondent’s vice
president, Galina Pincow, conceived of the idea of labeling
dairy products, specifically farmer cheese and butter, with
the mark BABUSHKA’S RECIPE.55 Ms. Pincow hired Irina
Lubenskaya to work with her in developing a label design
bearing the mark. Ms. Lubenskaya sent several different
images for the proposed label to Ms. Pincow for review on or
about July 27, 1997.56 The artwork was then sent to the
printer in December of 1997.57 On or about April 7, 1998,
respondent placed an order with Jes Printing for 7000 labels
to be used on BABUSHKA’S RECIPE yogurt cheese.58 Testimony
from Ms. Pincow and respondent’s warehouse manager
corroborate this date. Ms. Pincow testified that the
earliest sales of goods bearing the mark BABUSHKA’S RECIPE

55 G. Pincow Dep., p. 8.
56 G. Pincow Dep., p. 14.
57 Lubenskaya Dep., p. 37, 47; respondent’s (“R’s”) Ex. 212.
Cancellation No. 92042082
29
occurred “in the beginning of 1998.”59 Joseph Krumgalz,
respondent’s warehouse manager, testified that since July or
August of 1998, when he joined International Gold Star
Trading Co.,60 one of his duties was to oversee respondent’s
employees affix BABUSHKA’S RECIPE labels on dairy products
sold to respondent’s customers.61
Lisa Troyer, vice president of sales at Bunker Hill
Cheese Company, testified that sometime in 1998, Bunker Hill
Cheese Company started supplying Havarti yogurt cheese to
respondent under the BABUSHKA’S RECIPE label.62 Lewis
“Butch” Miller, executive vice president for Queensboro
Farms, testified that Queensboro Farms began supplying dairy
products, specifically farmer cheese and pot cheese, to
respondent in 1996,63 but from “August of 1996 through the
beginning of 1998,” the label used on the products did not
include the mark BABUSHKA’S RECIPE.64
Q: And do you remember exactly what labels, if
any, were on those products as they were sold in
1996?
A: At the inception of the sale there was a
simple label that said Gold Star on the product.
Sometime after that Gold Star directed Queensboro

58 G. Pincow Dep., p. 23, 101; R’s Ex. 206.
59 G. Pincow Dep., p. 148.
60 The exact date was verified by another witness as June 22,
1998. G. Pincow Dep., p. 70-74; R’s Ex. 126.
61 Krumgalz Dep., p. 7-10.
62 Troyer Dep., p. 19, 51, 54, 57-58.
63 Miller Dep., p. 8, 11; R’s Ex. 136.
64 Miller Dep., p. 22, R’s Ex. 213.
Cancellation No. 92042082
30
to not use that label, send the product in
unlabeled, and they would apply their own labels.
Q: Do you remember when that was?
A: I think it was within two years after we
started.
Q: So that would be sometime in 1998.
A: That’s my recollection.65

Vladimir Kraznov, owner of V.M. Food Service
Corporation, d/b/a/ New York International Store, at first
testified that he purchased BABUSHKA’S RECIPE products from
respondent in 1997 or 1998.66 After identifying Exhibit
115, an invoice from respondent to New York International
dated December 18, 1998,67 he was asked if it “would have
been the first purchase of Babushka’s Recipe products you
made from Gold Star?” He responded that it would have been
the “first or second.”68 On cross-examination, he clarified
that he thought the earliest sale likely occurred in 1998,
but was unsure:
Q: And were you ordering those products those
Babushka’s Recipe products also before 1998?
A: No.
Q: 1998 is when you started.
A: Yes.
Q: So from 1995 until 1998 you did not sell
Babushka’s Recipe dairy products; is that right?
A: No.
Q: You agree with me that you did not sell
Babushka’s Recipe dairy products from 1995 until
1998.

65 Miller Dep., p. 14.
66 Krasnov Dep., p. 7.
67 Krasnov Dep., p. 8.
68 Krasnov Dep., p. 13.
Cancellation No. 92042082
31
A: I don’t think – I don’t remember exactly
because I don’t want to – I want to tell you the
truth. I don’t remember it exactly.69

Giving this testimony limited weight, and taking into
account the testimony of Ms. Pincow and the other witnesses,
and the evidence provided by respondent, we find that
respondent’s first use of the mark BABUSHKA’S RECIPE
occurred sometime in 1998 for yogurt cheese, farmer cheese,
butter and pot cheese. Accordingly, petitioner has priority
of use.
Likelihood of Confusion
Although petitioner argued in its main trial brief that
likelihood of confusion is an issue in this case, and
provided a likelihood of confusion analysis in its brief,
respondent concedes that there is no issue as to likelihood
of confusion and “agrees that Four Season’s mark is likely
to be confused with Gold Star’s registered mark.”70 Even if
respondent had not conceded likelihood of confusion,
petitioner would prevail on the issue. The record shows
that BABUSHKA and applicant’s mark , which is
transliterated as BABUSHKINO, both mean “grandmother” or
“granny” in Russian.71 Petitioner’s mark would be

69 Krasnov Dep., p. 24; R’s Exs. 115, 102.
70 Respondent’s Brief, p. 5.
71 Bekker Dep., p. 8; G. Pincow Dep., p. 33.
Cancellation No. 92042082
32
pronounced “Babushkino” by speakers who can read the
Cyrillic alphabet. The marks sound alike and have similar
connotations. The fanciful term BABUSHKA’S is clearly the
dominant element in the mark BABUSHKA’S RECIPE; the use of
the possessive is immaterial and the word “recipe” is less
significant as it is suggestive of the goods. While the
marks differ somewhat in appearance, overall, the marks have
similar commercial impressions.
As for the goods, the parties each sell farmer cheese,
yogurt, and butter under their respective BABUSHKA’S RECIPE
and marks; and they sell to the same class of
consumers, namely, the Russian ethnic market.72 Given the
similarities of the marks and the virtual identity of the
goods, trade channels and classes of consumers, a likelihood
of confusion exists.73
Decision: Having found that petitioner has priority of
use and that there is a likelihood of confusion, the

72 G. Pincow Dep., p. 7; Bekker Dep., p. 14.
73 We note that the parties devote a considerable amount of
resources to show that their adversary acted in bad faith.
Respondent has alleged petitioner’s bad faith in copying other
parties’ trademarks, including other marks of respondent. The
evidence does not support this bad faith allegation. Likewise,
the evidence does not support a conclusion that respondent acted
in bad faith in selecting its mark or in otherwise labeling its
goods.
Cancellation No. 92042082
33
petition to cancel Registration No. 2479287 under Section
2(d) of the Act is granted.74

74 Having found grounds for cancellation under Section 2(d) of the
Act, we need not reach petitioner’s pleaded claim of fraud.