I Live Here, I Give Herev.Amplify Credit Union

Trademark Trial and Appeal Board

Mar 6, 2019

91228233 (T.T.A.B. Mar. 6, 2019)

This Opinion is not a
Precedent of the TTAB

Hearing: October 11, 2018 Mailed: March 6, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

I Live Here, I Give Here
v.
Amplify Credit Union
_____

Opposition No. 91228233
_____

Peter D. Kennedy and Steven D. Smit of Graves, Dougherty, Hearon & Moody, P.C.,
for I Live Here, I Give Here.

Dwayne K. Goetzel of Meyertons, Hood, Kivlin, Kowert & Goetzel, P.C.,
for Amplify Federal Credit Union.
_____

Before Kuhlke, Mermelstein and Ritchie, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Applicant, Amplify Credit Union,1 seeks registration of the mark AMPLIFY in
standard characters for “Charitable fundraising; charitable fundraising services; on-
line charitable fundraising,” in International Class 36 on the Principal Register.2

1 During the course of this proceeding, the original Applicant, Amplify Federal Credit
Union, recorded its name change to Amplify Credit Union with the Assignment Branch on
June 14, 2017 at Reel/Frame: 6084/0040.
2 Serial No. 86835293, filed December 1, 2015, based on allegations of first use and first use
in commerce of June 2009 under Section 1(a), 15 U.S.C. § 1051(a). The application includes
a claim of ownership of Registration Nos. 3963625, 4159102, and 4581865.
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Opposer, I Live Here, I Give Here, has opposed registration of Applicant’s mark
on the ground that, as used in connection with Applicant’s services, the mark so
resembles Opposer’s previously used marks AMPLIFY and AMPLIFY AUSTIN in
connection with “charitable fundraising, online fundraising and related services in
the relevant market,” as to be likely to cause confusion under 2(d) of the Lanham
Act, 15 U.S.C. § 1052(d). By its answer, Applicant denies the salient allegations.3
I. RECORD
The record includes the pleadings and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file of the application subject to the notice of
opposition.
In addition, Opposer submitted the testimony declarations of Celeste Flores,
Opposer’s Executive Director, and Patsy Woods Martin, Opposer’s founder and first
chief executive officer, with accompanying exhibits.4
Applicant submitted the testimony declarations of Paul Trylko, Applicant’s
President and CEO, Kendall Garrison, Applicant’s Executive Vice President, and
Lisa Nicholas, Applicant’s Vice President of Marketing, with accompanying

3 In addition, Applicant asserted certain affirmative defenses but did not pursue them at
trial. Accordingly, they are deemed to be waived. Alcatraz Media, Inc. v. Chesapeake Marine
Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed.
Cir. 2014). See also 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 Mktg. Grp. Inc., 102 USPQ2d 1187,
1189-90 (TTAB 2012) (affirmative defenses not pursued at trial considered waived). We
further note the affirmative defenses of estoppel, laches, and acquiescence are generally not
available in an opposition. Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1292
n.14 (TTAB 2007). Applicant’s assertion of prior use as an affirmative defense is an
amplification of its denial of Opposer’s assertion of priority, and has been so construed.
4 11 TTABVUE.
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exhibits.5 In addition Applicant submitted a notice of reliance on: 1) its pleaded
registrations and pending applications; 2) duplicates of various exhibits
authenticated by Lisa Nicholas and attached to her testimony declaration; 3)
Opposer’s abandoned application for registration of the AMPLIFY mark;6 4) third-
party registrations that include corporate social responsibility services and
charitable services in addition to charitable fundraising services; 5) Opposer’s
responses to certain requests for admissions and interrogatories; and 6) excerpts
from printed publications in general circulation, websites, and business documents
stipulated to or otherwise authenticated showing use of AMPLIFY by each party.
Opposer submitted the rebuttal declaration of Celeste Flores. In addition,
Opposer took oral cross examination of Applicant’s declaration witnesses, Paul
Trylko, Kendall Garrison and Lisa Nicholas. Opposer submitted excerpts from the
Trylko and Nicholas depositions7 and, in a separate filing, upon Applicant’s request,
the complete depositions.8
A. Opposer’s Objections
Opposer’s objection to consideration of the entire oral cross examination
depositions is overruled. Trademark Rule 2.123(h), 37 C.F.R. 2.123(h) (“All
[testimony] depositions which are taken must be duly filed in the Office.”) Opposer

5 12 TTABVUE.
6 Opposer expressly abandoned this application for the mark AMPLIFY for, inter alia,
“Charitable fundraising services by means of a website portal where donors search for and
make monetary donations to their selected charities” after Applicant had filed an
opposition. Garrison Decl. ¶¶ 14, 15, 12 TTABVUE 30; Flores Reb. Decl. ¶ 26, 17
TTABVUE 34-35. The abandonment was without prejudice. 17 TTABVUE 35.
7 17 TTABVUE.
8 16 TTABVUE.
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has lodged numerous other objections. The objections go primarily to the probative
value of various pieces of evidence. As necessary and appropriate, we will point out
any limitations in the evidence or otherwise note the evidence cannot be relied upon
in the manner sought. In doing so, we have kept in mind these various objections
and we have accorded whatever probative value the subject testimony and evidence
merit. See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477,
1479 (TTAB 2017).
B. Applicant’s Objections
Applicant objects to the testimony of Ms. Flores and Ms. Martin, arguing that
they are “simply fact witnesses who are not qualified to serve as an expert witness
or to judge what services constitute ‘charitable fundraising’ or not.” App. Br., 19
TTABVUE 11. Opposer responds that Applicant should have made these objections
by filing a motion after testimonial declarations were submitted and, therefore,
these objections are waived. We view these as objections to the substance, as they go
to whether the witnesses qualify as expert witnesses. The objections are therefore
not waived and may be raised for the first time in the brief.9 See Barclays Capital
Inc. v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1167 (TTAB 2017) (substantive
objection may be raised by a motion to strike and maintained in the brief, or raised
in the brief for the first time).

9 As explained in the order denying Applicant’s premature motion to strike, “it is not the
Board’s practice to make prospective or hypothetical evidentiary rulings.” 10 TTABVUE 2.
Objections that require a review of the testimony, i.e., substantive objections, are deferred
until final disposition. Genesco Inc. v. Martz, 66 USPQ2d 1260, 1263 (TTAB 2003); TBMP
§ 502.01 (June 2018).
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Fed. R. Evid. 702, made applicable to Board proceedings by Trademark Rule
2.116(a), provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
To accept a witness as an expert, we must determine whether the proposed
expert possesses “a reliable basis in the knowledge and experience of [the relevant]
discipline.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993).
According to her testimony, Ms. Flores has been the Executive Director of
Opposer since August 2015; prior to that she “worked at a large Community
Foundation, which provides professional charitable services, as well as in several
major gift fundraising roles with large philanthropic institutions raising funds for
charitable causes.” Flores Decl. ¶ 1, 11 TTABVUE 4. She further testifies that “as a
result of my education and experience, I have considerable knowledge in the field of
providing charitable and fundraising services, and more particularly about services
that qualify as ‘charitable fundraising; charitable fundraising services; and/or on-
line charitable fundraising’ as those terms are commonly understood in the
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philanthropic community, which is the sector of the public to which these services
are offered.” Id.
Ms. Martin testifies that she is the “founder and first chief executive officer of I
Live Here, I Give Here, Austin’s Campaign for Philanthropy.” Martin Decl. ¶ 1, 11
TTABVUE 61. She further testifies that she “led a group of foundations,
individuals, non-profits and businesses which came together to launch I Live Here, I
Give Here in 2007.” Id. Prior to her work with Opposer she “was the vice president
of resource development for United Way Capital Area where [she] worked as a
fundraiser, with both businesses and individuals engaged in charitable giving.” Id.
In addition, she “worked as a volunteer fundraiser for The Helping Hand Home for
Children and Hospice Austin, among other organizations.” Id. She is “a former
member of the Association of Fundraising Professionals, Austin Chapter.” Id. at 62.
We find that based on their respective professional experiences as charitable
fundraisers, Ms. Flores and Ms. Martin are qualified as experts in the field of
charitable fundraising. See Alcatraz Media v. Chesapeake Marine Tours, 107
USPQ2d at 1756-57 (based on professional experience as a travel writer and editor,
witness qualified as an expert in the field of travel writing and journalism). Cf.
UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1876-77 (TTAB 2011)
(opposer’s objection to witness’ testimony regarding his opinion that MOTOWN is a
descriptive term used to identify a musical style or genre on the grounds of lack of
personal knowledge overruled; opinion is based on witness’ “musicological research”
and Fed. R. Evid. 703 permits an expert to give an opinion based on matters not in
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evidence). However, Ms. Flores’ and Ms. Martin’s opinions do not serve as a
substitute for the Board’s judgment on the legal claims before us. Accordingly, we
have treated them as experts and have accorded their testimony the appropriate
probative value. See Alcatraz Media v. Chesapeake Marine Tours, 107 USPQ2d at
1756-7.
II. STANDING
Because Opposer has established that it uses the mark AMPLIFY in connection
with charitable fundraising services, as discussed below, Opposer has established
its standing to oppose registration of Applicant’s mark. See Empresa Cubana Del
Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000);
Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Lipton
Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
III. THE PARTIES
Opposer, a not-for-profit organization, primarily serving Central Texas, was
formed in 2007 to “illuminat[e] the needs in the community and invit[e] Austinites
to find their passions and share their financial resources to meet those needs.”
Martin Decl. ¶¶ 1, 3, 11 TTABVUE 60-1. Opposer “has been using the marks
AMPLIFY and AMPLIFY Austin in commerce since at least February 15, 2012 in
connection with (i) accepting and administering monetary charitable contributions,
(ii) charitable fundraising by means of providing individuals with information and
the opportunity to make monetary donations to their favorite charity, (iii)
promoting the charitable services of others by providing individuals with
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information about various charities for the purpose of making donations to those
charities, and (iv) providing, maintaining and administering a website where donors
in a particular community can search for and make donations to specific charities in
that community. In addition to using AMPLIFY in connection with year-long fund-
raising efforts, [Applicant] specifically uses the AMPLIFY Austin mark for
[Applicant’s] annual 24-hour community-wide day of online giving event that has
raised close to $35 million for almost 700 nonprofits in five years.” Id. ¶ 3, 11
TTABVUE 61.
Applicant is a credit union, which is a not-for-profit organization that provides
financial services to its members. Trylko Decl. ¶¶ 2, 5, 12 TTABVUE 4; Garrison
Decl. ¶ 2, 12 TTABVUE 27. It has been using the mark AMPLIFY since at least as
early as 2006 in connection with credit union services. Trylko Decl. ¶ 3, 12
TTABVUE 4. Applicant has two registrations for the mark AMPLIFY for use in
connection with its credit union and other financial-related services. Trylko Decl.
¶ 3, 12 TTABVUE 4; Garrison Decl. ¶ 12, Exh. M, 12 TTABVUE 29, 82-86; NOR
Exh. 1, 13 TTABVUE 7-14. Applicant’s use of the mark AMPLIFY in connection
with charitable fundraising services is discussed below.
IV. PRIORITY/ LIKELIHOOD OF CONFUSION
To establish a claim brought under Section 2(d) a plaintiff must establish prior
proprietary rights and likely confusion based on the relevant factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also, In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
Two key considerations in determining likelihood of confusion are the similarities
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between the marks and the similarities between the goods. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Although the parties primarily focus on the question of priority, we first address
likely confusion, as it assists in framing the priority of use discussion. Opposer
asserts two marks used in connection with charitable fundraising services –
AMPLIFY and AMPLIFY AUSTIN. While the examples of use in the record
discussed below show the mark AMPLIFY AUSTIN, in view of the geographically
descriptive nature of the word AUSTIN, we find that AMPLIFY presents a separate
commercial impression and these uses also support a finding of proprietary rights in
the mark AMPLIFY by itself. Here, Opposer’s asserted mark AMPLIFY and its
“charitable fundraising services” are identical to Applicant’s mark AMPLIFY and
its “charitable fundraising services” as identified in the subject application. In view
thereof, there would be likely confusion between Opposer’s and Applicant’s use of
the identical mark with identical services. The only issue that remains for decision
is priority of use in connection with “charitable fundraising services.”
The undisputed testimony of Ms. Flores and Ms. Martin quoted above
establishes that Opposer has been using the marks AMPLIFY and AMPLIFY
AUSTIN since at least February 15, 2012 in connection with charitable fundraising
services. Flores Decl. ¶ 2, 11 TTABVUE 5; Martin Decl. ¶ 3, 11 TTABVUE 61. See
also Flores Decl. ¶ 3, 11 TTABVUE 5 (“[Opposer] has used AMPLIFY continuously
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since at least as early as February 15, 2012 through the present.”) A few examples
of Opposer’s use are set forth below:10

10 Flores Decl. Exhs. 2, 3, 4, 8, 10.B, 11 TTABVUE 12, 13, 14, 20, 34.
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Thus, to establish priority Applicant must establish use of AMPLIFY in
connection with the identified “charitable fundraising services” prior to February
15, 2012. The application includes an allegation of use since June 2009. However,
an allegation of first use in an application is not evidence on behalf of Applicant; the
date of use must be established by competent evidence. Trademark Rule 2.122(b)(2),
37 C.F.R. § 2.122(b)(2). Applicant argues that it “has used the AMPLIFY mark for
charitable fundraising services prior to Opposer, and therefore Opposer has neither
standing nor priority in this matter.” App. Br., 19 TTABVUE 10. Because Applicant
is applying for “charitable fundraising services” and not “charitable services” in
general, we must determine if Applicant’s established activities and use of its mark
AMPLIFY include “[c]haritable fundraising; charitable fundraising services; on-line
charitable fundraising,” as identified in the application, or if they are some other
type of activity not encompassed by the identification of services. In re Trackmobile
Inc., 15 USPQ2d 1152 (TTAB 1990) (“[I]t is improper to simply consider [a]
description in a vacuum and attach all possible interpretations to it when the
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applicant has presented extrinsic evidence showing that the description of goods has
a specific meaning to members of the trade.”).
Opposer’s witnesses testify as follows:
10. According to GrantSpace, a service of Foundation
Center, “Corporate Social Responsibility (CSR) is the
popular term used to describe actions taken by businesses
to assess and take responsibility for the company’s effects
on environmental and social wellbeing. CSR encompasses
not only corporate philanthropy, but also environmental
issues, employee engagement, and corporate governance
... When it comes to philanthropy, corporations give in
various ways, including cash donations or grants, in-kind
gifts, sponsorships, cause-related marketing, and pro bono
services. Companies also are involved in CSR by
promoting workplace giving through employee matching
gifts programs and other efforts that encourage their
employees to give their time and/or money to charity. See
http://grantspace.org/tools/knowledge-base/Funding-
Resources/Corporations/corporate-giving.
11. In contrast to CSR, charitable fundraising and online
fundraising are specific strategies employed by nonprofit
organizations to raise funds to sustain the organization
and its program and services. This includes efforts like
major gift fundraising, direct mail appeals, online
fundraising campaigns, capital campaigns and special
events to solicit individuals, foundations and corporations
for donations.
Flores Decl., 11 TTABVUE 8-9. See also Martin Decl. ¶ 8, 11 TTABVUE 65.
Applicant argues for a broader understanding of what constitutes “charitable
fundraising services.” We grant Applicant’s request for judicial notice of the
following dictionary definitions of the separate words “charitable” and
“fundraising”:
Charitable 1. Generous in donations or gifts to relieve the
needs of indigent, ill, or helpless persons, or of animals: a
charitable man giving much money to feed the poor. …
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2. kindly or lenient in judging people, acts, etc: charitable
in his opinions of others.
3. pertaining to or concerned with charity: a charitable
institution.
Fundraising 1. The act or process of raising funds, as for
nonprofit organizations or for a political cause.
19 TTABVUE 11-12. In re Olin Corp., 124 USPQ2d 1327, 1337 n. 25 (TTAB 2017).
We take further judicial notice of the definition for “charity” as “generous actions or
donations to aid the poor, ill, or helpless; something given to a person or persons in
need; a charitable act or work; a charitable fund, foundation, or institution.”11
Applicant argues that “[w]hen ‘charitable’ and ‘fundraising’ are combined, it
simply means that money or funds are raised, solicited or obtained for charitable
purposes (such as for the needs of animals, the poor, the sick, the helpless, or for
institutions that assist such groups).” Id. at 12-13. Applicant continues:
In fact, Ms. Flores concedes that Applicant “might be
providing charitable services as a philanthropist by
providing financial assistance to charities or sponsoring
events.” This admission therefore indicates that Applicant
falls within the definition of charitable fundraising as
defined by the common, everyday meaning of charitable
fundraising, common sense, and the dictionary. In other
words, if charitable fundraising is the act or process of
raising funds for charitable purposes, then Opposer has
admitted that Applicant is doing exactly that.
Id. at 13.
We cannot accept Applicant’s general and broad statement as to the meaning of
“charitable fundraising services” in its application. We are more persuaded by Ms.
Flores’ and Ms. Martin’s testimony that clearly explain the difference between

11 www.dictionary.com based on Random House Unabridged Dictionary (2019).
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corporate social responsibility campaigns and the more specific strategies to raise
funds by third parties for nonprofit organizations.
With this framework, we turn to Applicant’s evidence of use prior to February
15, 2012. From 2010 to the present, Applicant has provided monetary support
towards college tuition for students, provided money to people in the community for
home makeovers, spent hours volunteering for various charitable causes and
provided physical and financial assistance to others in the community. Garrison
Decl. ¶ 2, 12 TTABVUE 27. Ms. Nicholas submitted exhibits (shown below)
“showing some of the various charitable services [Applicant] has provided prior to
2012, including giving money towards college tuition, donating money towards
construction of a children’s playground, and participating in the ‘Season for Caring’
campaign in which money is donated and services are provided to various charitable
causes in the community.” Nicholas Decl. ¶ 3, Exh. O, 12 TTABVUE 91, 95, 97-105,
108, 122, 132.
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Ms. Nicholas further testifies that Applicant “also has an internal ‘Community
Care’ program, by which employees can donate time and services to various
charitable organizations. A true and correct copy of the 2007 version of this policy is
attached as Exhibit P [shown below], and refers to several different charities, as
well many charitable events that were sponsored or hosted by [Applicant].” Nicholas
Decl. ¶ 4, Exh. P, 12 TTABVUE 92, 145, 149.
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Ms. Nicholas also provided testimony and an exhibit pertaining to a disaster
relief event in 2011. “[I]n 2011, [Applicant] set up a fund so that people and
companies could make online donations to victims of wildfires in the communities
outside of Austin, Texas. … an advertisement from 2011 … is attached as Exhibit Q
[shown below].” Id. ¶ 5, 12 TTABVUE 92, 151.

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In addition, Applicant submitted an excerpt from a newsletter discussing this
wildfire relief under Mr. Garrison’s declaration testimony. Garrison decl. ¶ 5, Exh.
E, 12 TTABVUE 28, 33.

Mr. Garrison testifies that Applicant “set up a page on the Amplify Credit Union
website and sought donations from credit union members and third parties, with
the funds directed to charitable organizations that helped those affected rebuild
their homes and businesses. Reference to the charitable services we solicited, to be
directed to the Red Cross through a third party site, was shown in our 2011
newsletter.” Id. However, the newsletter, at best, does not support his statement as
it appears the donation is done on the Red Cross’ website: “Amplify has already
donated $5000 to the Red Cross and is helping collect individual financial donations
at www.centex.redcross.org/CreditUnionsCare.”
Applicant also points to the printouts of archived web pages submitted under
notice of reliance. NOR Exhs. 6j and 6k, 13 TTABVUE 151-154.

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The relevant text from these archived web pages is buried in the list of credit
union services and reads as follows:
Amplify supports Capital Area Food Bank. If you’d like to
help, contribute online using Online Banking.
Amplify Employees Raise Over $10,000 for Children’s
Miracle Network; and
Children’s Medical Center of Texas Fundraiser!
These archived web pages are of little probative value, as Applicant states they
are missing information and constitute hearsay. The only testimony that may relate
to them comes from Mr. Trylko on oral cross examination where he states: “We have
things dating back to, I think, 2008, 2009 with the Capital Area Food Bank, similar
activities, Children’s Hospital and Children’s Miracle Network, I think, we’ve done
that in more recent times too, where we have the same kind of online giving when
we engage our members, give them information about different charities and give
them the opportunity to learn and then contribute.” While testimony of a single
witness maybe sufficient to prove priority, it must be “sufficiently probative” and
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not “characterized by contradictions, inconsistencies and indefiniteness” but rather
carries with it “conviction of its accuracy and applicability.” Kohler Co. v. Baldwin
Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB 2007) (quoting Powermatics, Inc. v.
Glebe Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430 (CCPA 1965) and B.R. Baker
Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ 232 (CCPA 1945)). This testimony is too
vague and indefinite in terms of the actual activity. In addition, based on Ms.
Nicholas’ testimony regarding community care activities, the reference to Children’s
Medical Center of Texas Fundraiser in the list could simply be an event others may
want to attend or donate time to, rather than an event organized and run by
Applicant as a fundraising service to the Medical Center.
Opposer points to Applicant’s website shown below12 that includes the slogan
“Not for profit, not for charity, but for service” and argues that Applicant’s use of its
mark “relates primarily to credit union services or to typical corporate charitable
giving by Applicant as a donor, not to the recited charitable fundraising services
provided by Applicant to others under the AMPLIFY mark.” Opp. Br., 18 TTABVUE
13.

12 Flores Decl. Exh. 13, 11 TTABVUE 45.
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Ms. Flores testifies that Applicant’s activities are not charitable fundraising
services but rather simply “promote[] its reputation as a good corporate citizen and
cannot be separated from its promotion of its business – marketing of credit union
financial servcies.”13 However, the question before us is whether Applicant provides
“charitable fundraising services,” not what other business Applicant provides under
the mark AMPLIFY.
Ms. Flores further testifies:
6. In my opinion, which is based on my experience and
qualifications in the area of charitable services including
fundraising, the advertising materials produced by AFCU
regarding its use of the mark AMPLIFY, including those
examples attached hereto as Exhibits 14-21, do not
support AFCU’ s claim that it used AMPLIFY for any of
the services recited in its application, namely “Charitable
fundraising; charitable fundraising services; and/or on-
line charitable fundraising,” as those terms are
understood in the philanthropic community, prior to

13 Flores Decl. ¶ 6, 11 TTABVUE 7.
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ILHIGH’s first use of AMPLIFY in connection with the
services described above. Rather, these advertising
materials, which include such things as contests to win a
year's tuition (Exh. 14), donating money for a kid's
playground (Exh. 15), donating money (and manpower)
for home makeovers and home repairs (Exhs. 16, 17, and
18), having a contest to send a family to Lego Land (Exh.
19), sponsoring a Blue Santa event (Exh. 20), and
sponsoring a gallery opening (Exh. 21) show that AFCU
promotes its reputation as a good corporate citizen and
cannot be separated from its promotion of its business -
marketing of credit union financial services.
7. At most, these materials show that AFCU provides
financial sponsorships charitable events, provides
financial assistance to well-known charities, such as
Habitat for Humanity and sponsors “contests,” where the
winner is awarded a prize, in the form of a scholarship or
other financial assistance. These types of activities are
not “charitable fundraising; charitable fundraising
services; and/or on-line charitable fundraising.” as those
terms are understood in the philanthropic community.
Rather, AFCU is essentially acting as an event sponsor or
donor to nonprofits like the Habitat for Humanity or I
Live Here, I Give Here that are engaged in charitable
fund raising. In other words, AFCU, like many
companies, is asked by nonprofits for donations as part of
fund-raising efforts by those nonprofits. Thus, AFCU
might be providing charitable services as a philanthropist
by providing financial assistance to charities or
sponsoring events, but this is very different than
providing “charitable fundraising; charitable fundraising
services; and/or on-line charitable fundraising.”
8. There is a significant difference between the
philanthropic activities that AFCU is engaged in as
shown by its advertising materials, and the professional
industry of charitable fundraising, fundraising services
and online fundraising. The philanthropic activities that
AFCU has participated in, as shown by its advertising
materials are considered “corporate giving.” The broader
context of corporate giving is known in the philanthropic
community as Corporate Social Responsibility (CSR).
According to CONE Communications - a leading agency in
the country for CSR strategy and communications and a
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resource upon which experts in the field of charitable
services and fundraising rely - CSR is broadly defined as
“companies changing their business practices and giving
their support to help address the social and
environmental issues the world faces today.” See 2015
CONE Communications/EBIQUITY Global CSR Study. A
true and correct copy of the relevant excerpt of this report
is attached hereto has Exhibit 22. One practice of CSR is
donating to national and local charities.
9. According to the Council on Foundations, which is
another resource upon which experts in this field rely,
Corporate Philanthropy (Corporate Giving), refers to the
“investments and activities a company voluntarily
undertakes to responsibly manage and account for its
impact on society. It includes investments of money,
donations of products, in-kind services and technical
assistance, employee volunteerism, and other business
transactions to advance a social cause, issue, or the work
of a nonprofit organization.” See
http://www.cof.org/foundationtype/comorate-giving-
programs-and-foundations.
10. According to GrantSpace, a service of Foundation
Center, "Corporate Social Responsibility (CSR) is the
popular term used to describe actions taken by businesses
to assess and take responsibility for the company's effects
on environmental and social wellbeing. CSR encompasses
not only corporate philanthropy, but also environmental
issues, employee engagement, and corporate governance
... When it comes to philanthropy, corporations give in
various ways, including cash donations or grants, in-kind
gifts, sponsorships, cause-related marketing, and pro bono
services. Companies also are involved in CSR by
promoting workplace giving through employee matching
gifts programs and other efforts that encourage their
employees to give their time and/or money to charity. See
http://grantspace.org/tools/knowledge-base/Funding-
Resources/Corporations/corporate-giving.
11. In contrast to CSR, charitable fundraising and online
fundraising are specific strategies employed by nonprofit
organizations to raise funds to sustain the organization
and its program and services. This includes efforts like
major gift fundraising, direct mail appeals, online
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fundraising campaigns, capital campaigns and special
events to solicit individuals, foundations and corporations
for donations.
In summary, in my opinion and based on my experience,
the philanthropic activities by AFCU under AMPLIFY
that are illustrated by its advertising materials are very
different than the services offered under the AMPLIFY
mark by ILHIGH that are described above; and are
unlikely to cause confusion. Thus, if AFCU was
attempting to register the AMPLIFY mark relating to its
philanthropic efforts, such as providing financial
sponsorships and the like, rather than broadly and
improperly attempting to register the mark for
"charitable fundraising; charitable fundraising services;
and/or on-line charitable fundraising," ILHIGH would not
be pursuing AFCU' s attempt to register the mark.
See also Martin Decl. ¶¶ 8-9, 11 TTABVUE 65-66.
While clearly an act of charity, Applicant’s donation of money to a playground in
2010 is not a charitable fundraising service, it is simply a donation by Applicant to
a needy recipient as described in the article below:14

14 Flores Decl. Exh. 15, 11 TTABVUE 48.
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Similarly, Applicant’s sponsorship of a contest for a house makeover is not a
charitable fundraising service and again its mark is used in connection with its
credit union services as shown below:15

15 Flores Decl. Exh. 17, 18, 11 TTABVUE 50, 51.
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On cross examination, Ms. Nicholas gave the following testimony on the various
examples of use submitted in Exhibit O:
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Q. And then it says, “Including giving money towards
college tuition.”
A. Uh-huh.
Q. That would have been Amplify Credit Union acting as
a donor giving money. Correct?
A. Correct.
Q. Donating money towards construction of a children’s
playground that would have, again, been Amplify Credit
Union acting as a donor giving money for that particular
playground. Correct?
A. Correct. Although, I didn’t have full knowledge. I’m not
sure if they did in-kind donations or anything for that,
because I wasn’t there at that exact time.
Q. Okay.
Nicholas Depo. pp. 8-9, 16 TTABVUE 11-12.
Thus, while Applicant’s activities may be charitable, they are not charitable
fundraising services. For Applicant, the question of priority depends on when it first
used the mark in connection with the services recited in its application. Its prior use
in connection with other services, even if related, does not establish priority.
Applicant’s only activity that comes close to fundraising prior to February 15, 2012
is the activity surrounding the wildfire that occurred in 2011, and possibly the
promotion of the Children’s Miracle Network Fundraiser in 2007. However, at best,
based on this record, it appears that the Red Cross (or Children’s Miracle Network)
is providing the fundraising service, and Applicant is engaging in corporate
donation and sponsorship by advertising where people may donate on the Red Cross
website. To the extent they also provided a platform to add to those donations to the
Red Cross, based on the evidence of record, we find that would also fall in the
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category of corporate donation and sponsorship. Finally, even if we construed these
two events as charitable fundraising, for purposes of interpreting Applicant’s
identification of services, these isolated events do not, as compared with the
corporate giving, establish prior proprietary rights in charitable fundraising
services. Cf. Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1023 (TTAB 2009)
(no evidence to show activities were performed as a “regular and recurring activity,”
no common law rights established).
Viewing the record in its totality, prior to February 15, 2012, Applicant engaged
in what can be characterized at best as charitable services, or more generally
“charitable community and civic support services” or “corporate philanthropy.” This
is underscored by Applicant’s Annual Report that lists as its vision “To be a leader
within Central Texas community, contribuiting to the sustainability of the region
and creating a meaningful and positive social impact.” Trylko Decl. Exh. C, 12
TTABVUE 20 (2016 Annual Report). The examples of charitable activity on the part
of Applicant do not add up to “charitable fundraising services,” which is a distinct
type of service from corporate giving and sponsorship. When fitted together the
“puzzle” pieces of evidence here show Applicant engaged in various forms of
donating and sponsorship but not fundraising services. W. Fla. Seafood, Inc. v. Jet
Rests., Inc., 31 F.3d 1122, 31 USPQ2d 1660, (Fed. Cir. 1994). Even if during the
wildfire event, Applicant provided a place on their website for members to donate to
a third party, this, and possibly another, one-time event is not sufficient use to find
that Applicant established proprietary rights in the mark AMPLIFY in the field of
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“charitible fundraising services.” Applicant’s uses subsequent to 2012 do not alter
this result. While post 2012 examples of use are not irrelevant if they reflect on use
prior to 2012, the examples of use subsequent to February 15, 2012 are either more
of the donation activities or, to the extent they are closer to “charitable fundraising
services,” they are too distant from the prior activity. See e.g., Nicholas Decl. ¶¶ 8,
10, Exhs. T, W, 12 TTABVUE 92, 159, 174 (web pages from Applicant’s website
providing portal to donate to Dell’s Children’s Medical Center beginning in 2014 (T);
and American Red Cross for Hurricane Harvey relief in 2017 (W)). Thus, Opposer
has established priority.
Decision: The opposition is sustained.