Guy A. Andersonv.Michael Hanson

Trademark Trial and Appeal Board

Nov 4, 2016

No. 91218686 (T.T.A.B. Nov. 4, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 4, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Guy A. Anderson
v.
Michael Hanson
________

Opposition Nos. 91218977 and 912186861
_______

Larry S. Spokoiny of Lombino Martino, P.S.,
for Guy A. Anderson.

Daniel G. Findley of Helsell Fetterman LLP,
for Michael Hanson.
_____

Before Zervas, Shaw and Kuczma,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Michael Hanson (“Applicant”) seeks to register the following standard character
marks on the Principal Register, both pursuant to the provisions of Trademark Act

1 On April 21, 2016, the Board consolidated proceedings in Opposition Nos. 91218977 and
91218686, designating Opposition No. 91218977 as the parent case.
In this decision, citations refer to the record in Opposition No. 91218977.
Opposition Nos. 91218977 and 91218686
- 2 -
Section 1(b), 15 U.S.C. § 1051(b), asserting a bona fide intent to use the marks in
commerce:
● Application Serial No. 86222308, filed March 15, 2014,
for the mark for “hot dogs” in
International Class 29; and
● Application Serial No. 86229389, filed March 23, 2014,
for the mark for “hot dogs” in International
Class 29, and “hot dog sandwiches” in International Class
30.2
Guy A. Anderson (“Opposer”), “a purveyor of hot and cold snack foods sold at
sporting events and community festivals,” opposes registration of Applicant’s marks
on the grounds of (i) priority and likelihood of confusion under Trademark Act Section
2(d), 15 U.S.C. § 1052(d), based on his common law mark HAWK DAWG used “in
connection with its goods and services,”3 and (ii) fraud based on the filing of
Applicant’s applications when “it was and is well-known that Opposer had been using
the mark HAWK DAWG in commerce since before Applicant’s” filing dates.4
Applicant filed answers in each opposition, denying the salient allegations set
forth in each notice of opposition.
Neither Opposer nor Applicant submitted any evidence during their respective
testimony periods. Both parties filed briefs.
The burden of proof, including proof of standing, in an opposition proceeding is on
an opposer. When an opposer fails to take testimony or introduce any evidence in

2 The application includes a disclaimer of the term DOG.
3 Notice of opposition ¶ 2, 1 TTABVUE 3.
4 Notice of opposition ¶ 12, 1 TTABVUE 7.
Opposition Nos. 91218977 and 91218686
- 3 -
support of its pleaded claims, it cannot prevail. Hester Industries Inc. v. Tyson Foods,
Inc., 2 USPQ2d 1646 (TTAB 1987).
The only submission by Opposer in the record is Opposer’s initial pleading.
Opposer’s pleading is not proper evidence on Opposer’s behalf. The attachments
submitted with Opposer’s brief and on which Opposer relies, may not be considered
as evidence because, as Applicant urges, they were submitted outside of the testimony
period. See Trademark Rule 2.121(a)(1), 37 C.F.R. § 2.121(a)(1), providing that no
testimony shall be taken except during the times assigned, unless by stipulation of
the parties approved by the Board, or upon motion granted by the Board, or by order
of the Board. See also Baseball America Inc. v. Powerplay Sports, 71 USPQ2d 1844,
1846 n.8 (TTAB 2004) (documentary evidence submitted outside assigned testimony
period given no consideration). Applicant’s objection to the material submitted with
Opposer’s brief is well-taken and is sustained.
Inasmuch as Opposer has failed to properly make any evidence of record in
support of his pleaded claims, judgment is hereby entered against Opposer on both of
his claims in each proceeding, and both oppositions are dismissed with prejudice.
Decision: Both oppositions are dismissed with prejudice.