Intellect Technical Solutions, Inc.v.Milena Soni

Trademark Trial and Appeal Board

May 17, 2013

No. 92050920 (T.T.A.B. May. 17, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
April 9, 2013 May 17, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Intellect Technical Solutions, Inc.
v.
Milena Soni
_____

Cancellation No. 92050920
Registration No. 3009990
_____

William G. Giltinan of Carlton Fields PA for Intellect Technical Solutions, Inc.

Surjit P. Soni of The Soni Law Firm for Milena Soni.
_____

Before Kuczma, Greenbaum, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:

Milena Soni (respondent) owns a registration for the mark ENTELLECT (in
typed form)1 for the following services:
employment counseling and recruiting, business
consultation, business management and consultation,
business management consultation, personnel

1 Effective November, 2 2003, Trademark Rule 2.52(a) was amended to refer to “typed”
drawings” as “standard character” drawings.

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management consultation, psychological testing for the
selection of personnel in Class 35;
career counseling in Class 41; and
psychological counseling, psychological consultation,
psychological testing services, and psychological testing in
Class 44.2
On May 6, 2009, Intellect Technical Solutions, Inc. (petitioner) filed a petition
that originally sought partial cancellation as to Classes 35 and 41 only. The ground
asserted in the petition is priority and likelihood of confusion based on petitioner’s
alleged prior use of the mark INTELLECT in connection with recruiting and
placement services.3 On October 1, 2010, the Board granted petitioner’s motion for
leave to file an amended petition to add the grounds of non-use and abandonment
and to add the services in Class 44 to said claims. Respondent denied all salient
allegations of the original and amended petitions.
The matter was fully briefed and a hearing was held on April 9, 2013.
The Record and Evidentiary Issues
Respondent objected to all of the testimony of James Barge, CEO of
petitioner, and Rhonda Dabney, Operations Manager of petitioner, and the exhibits
thereto on one or more of the following grounds: (1) relevance – “the testimony was
directed to matters that are not included in the services claimed by respondent’s
ENTELLECT registration”; (2) relevance – “the testimony is directed to dates after

2 Reg. No. 3009990 issued on November 1, 2005. Petitioner filed a Section 8 Affidavit of
Continued Use on June 9, 2011, after the institution of this proceeding. The Section 8
Affidavit was accepted on July 20, 2011.
3 As discussed infra, petitioner owns a registration for the mark INTELLECT in Class 42.
These services are not at issue in this proceeding.
Cancellation No. 92050920

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the first use claimed in respondent’s registration,” namely May 1, 2002; and (3)
hearsay without an exception. The objections are overruled in their entireties for
the following reasons. First, the testimony is relevant because it relates to
petitioner’s services. Second, petitioner’s testimony establishes continuous use of
its mark, and therefore is relevant to the issues of petitioner’s interest in this
matter and its current rights. Finally, none of the contested exhibits to petitioner’s
testimony depositions constitutes inadmissible hearsay.4 More particularly, the
evidence consists of documents that were authenticated by Ms. Dabney and/or Mr.
Barge, and includes business records (for example a client list), documents authored
by Mr. Barge (for example, press releases and presentations), and documents
offered to show their existence, not the truth of the matters set forth therein (for
example a facsimile regarding the format of business cards).
The record includes, by operation of the rules, the pleadings and the file of
the registration sought to be cancelled. Trademark Rule 2.122(b).
In addition, petitioner submitted the testimony, with exhibits, of Mr. Barge
and Ms. Dabney; and petitioner introduced by notice of reliance:
1. A copy of the file history of its suspended application,
Ser. No. 77363060 from the PTO database;
2. A copy of the record of Reg. No. 3546885, petitioner’s
registration for the mark INTELLECT and design in
Class 42 from the PTO database5;

4 Many of the contested documents were also submitted by notice of reliance. Since they
have been accepted as exhibits to the testimony depositions, they will be considered.
5 While asserted in the pleading and made of record during petitioner’s testimony period,
Reg. No. 3546885 is not at issue in this proceeding.
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3. Respondent’s responses to petitioner’s requests for
admission;
4. Respondent’s responses to petitioner’s first set of
interrogatories;
5. Respondent’s responses to petitioner’s second set of
interrogatories;
6. Respondent’s written responses to petitioner’s first
request for production of documents;
7. Respondent’s written responses to petitioner’s second
request for production of documents;
8. Definition of “recruit” from Random House Webster’s
Unabridged Dictionary;
9. Petitioner’s Articles of Incorporation, Amendments to
the Articles of Incorporation, and annual reports from the
database of the Florida Secretary of State;
10. A page from the Internet Archive Wayback Machine
for intellectstaffing.com and archived web page for
intellectstaffing.com;
11. A printout of webpages from the website
potentialsdevelopment.org.; and
12. The transcript of the discovery deposition of Milena
Soni.
Respondent submitted the testimony deposition with accompanying exhibits
of Surjit P. Soni, in his capacity as Manager of Operations of Entellect6; and
respondent introduced by notice of reliance:
1. Petitioner’s responses to respondent’s requests for
admission;
2. Petitioner’s responses to respondent’s first set of
interrogatories; and

6Entellect is a sole proprietorship of which respondent is the principal (S. Soni, Dep. 4:20-
25). Mr. Soni is the husband of Ms. Soni, and represents her in this proceeding.
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3. Petitioner’s written responses to respondent’s first
request for production of documents.
Findings of Fact
1. Petitioner is a Florida corporation, whose business
address is 5404 Cypress Center Drive, Suite 150,
Tampa, Florida 33609. (Burge Dep., 14:2 and Petition
for Cancellation).
2. Respondent is a citizen of the United States whose
address is 972 Linda Vista Avenue, Pasadena,
California 91103. (Record of Reg. No. 3009990)
3. Respondent is the owner of Reg. No. 3009990.
4. Petitioner’s services consist of personnel recruitment
and the hiring of contract employees who work for
specific employers for a set period of time.7 (Burge
Dep., 10:1-4).
5. Petitioner has been using INTELLECT as a service
mark for its recruiting and placement services and as
part of its trade name since 1998. (Burge Confidential
Dep., pp. 141-154 and exhibits thereto consisting of
profit and loss statements and client lists8).
6. Petitioner is the owner of Application Ser. No.
77363060 for the mark INTELLECT for “placement
services, namely placing information technology
professionals into information technology positions” in
Class 35.9 Petitioner’s application was refused on the
basis of a likelihood of confusion with the mark shown

7 These services are described in the petition as “recruiting and placement services.”
8 Because the testimony and exhibits are confidential, we will not discuss the details
thereof.
9 When the application was filed, petitioner’s Class 35 services were identified as:
“Employment, hiring, recruiting, placement, staffing and career networking services,
namely recruiting and placing information technology professionals and staffing application
and development and information technology infrastructure positions.” The application
also included services in Class 42 that were divided into a separate application, which
matured into Reg. No. 3546885. As noted above, this registration is not at issue in this
proceeding.
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in respondent’s Reg. No. 3009990. (Application file
introduced by notice of reliance).
7. Respondent has no business records. (Discussed infra)
8. Respondent’s only function in the alleged business is to
refer people to a third-party to take a motivational
assessment test. (M. Soni Dep., 8:14-15 and 31:7-10.)
Discussion
Standing
Standing is a threshold issue that must be proved in every inter partes case.
See Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189
(CCPA 1982) (“The facts regarding standing … must be affirmatively proved.
Accordingly, [petitioner] is not entitled to standing solely because of the allegations
in its [pleading].”). To establish standing in a cancellation proceeding, petitioner
must show both “a real interest” in the proceeding as well as a “reasonable” basis
for its belief of damage. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,
1025 (Fed. Cir. 1999).
Standing can be established if a petitioner proves that it filed an application
and that a rejection was made because of a respondent’s registration. See Fiat
Group Automobiles S.p.A. v. ISM Inc., 94 USPQ2d 1111, 1112 (TTAB 2010), citing
Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008) (“The
filing of opposer's application and the Office’s action taken in regard to that
application provides opposer with a basis for pleading its standing.”). In the case at
bar, petitioner introduced, through notice of reliance, evidence of its pending
application which has been refused registration based on a likelihood of confusion
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with the mark in respondent's registration. Therefore, petitioner has established
standing.
Moreover, since petitioner has standing based on the refusal of its application
on the ground of likelihood of confusion with the mark in respondent’s registration,
petitioner also has standing with respect to the other pleaded grounds, which in this
case are non-use and abandonment. See Lipton 213 USPQ at 190, see also Ritchie v.
Simpson, 41 USPQ2d 1859, 1862, fn. 2, reversed on other grounds, 170 F.3d 1092,
50 USPQ2d 1023, (Fed. Cir. 1999).
Non-Use/Abandonment
In the amended petition to cancel, petitioner alleged that respondent has not
used her mark in commerce as required by Section 45 of the Trademark Act, 15
U.S.C. § 1127, and thus the underlying application is void ab initio under Sections
1, 2, and 45 of the Trademark Act. In the alternative, petitioner alleged that
respondent has abandoned any use that she may have made of the mark
ENTELLECT. For the reasons discussed below, we find that there has been no use
of the mark ENTELLECT in commerce in connection with any of the services set
forth in the registration.
Respondent, Milena Soni, does not have any business records. This fact was
confirmed in the oral hearing, when Mr. Soni, in his capacity as Ms. Soni’s attorney,
stated that the company does not keep records. The fact is further supported by
respondent’s failure to produce any business records and by the testimony of Ms.
Soni, and her husband, Surjit P. Soni, in his capacity as Manager of Operations for
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respondent. For example, Ms. Soni testified that she had no knowledge of records of
the customers who purchased the services (M. Soni Dep. 19:6), of the checks
received for the services (M. Soni Dep. 19:15), and of the number of referrals made
by Mr. Soni (M. Soni Dep. 19:23). Ms. Soni also testified that the word
ENTELLECT did not appear on any documents other than business cards and
letterhead (M. Soni Dep., 37:16-19), and Mr. Soni testified that he did not know
what business records the company currently had. (S. Soni Dep., 21:5-6). The only
documentary evidence produced by respondent consists of business cards, blank
letterhead, a document entitled “Purpose Statement” in which the word
ENTELLECT does not appear, and a “Mission Statement.” S. Soni Dep., pp. 13 - 17
and exhibits 3 – 6 thereto10. Respondent admitted that she has not used the
ENTELLECT mark on printed documents distributed to others, other than on
respondent’s business cards and letterhead. Response to Req. No. 7 of Petitioner’s
First Set of Requests for Admission.
Respondent relies on her oral testimony and that of her husband, Surjit P.
Soni, in in his capacity as Manager of Operations, to establish both prior and
continuous use of the mark.
It has been consistently held that the oral testimony of a
witness may be competent in and of itself to establish
both prior and continuous use of a mark… The question
in all of these cases is whether the testimony is
sufficiently probative for the purpose submitted. That is,
the testimony must not be characterized by
inconsistencies, contradictions, and indefiniteness; but
should be clear, convincing, consistent, and sufficiently

10 Exhibit 6 is described as a “Mission Statement” in Respondent’s Brief, p. 11.
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circumstantial to convince the trier of fact of the probative
value of the testimony.
Clubman’s Club Corporation v. Martin, 188 USPQ 455 (TTAB 1975).
The inconsistencies, contradictions and indefiniteness, which abound in
respondent’s testimony, first appear in Ms. Soni’s responses to questions about her
employment:
Q. Ms. Soni, are you self-employed?
A. No, I don’t work. I ---I guess—I don’t know how to
answer that.
Q. Are you employed by an employer?
A. No. I help my husband. We have a development
business. So I guess I’m self-employed. I’m just not used
to saying that.
Q. Now you say that you help your husband?
A. We have a development company, so I attend
meetings with architects and with decorators. I go to the
job sites. I read e-mails and make comments, give my
opinion. Go to City Hall for the commission meetings.
M. Soni Dep., 6:25 -7:13.
Ms. Soni did not mention Entellect until specifically asked whether she also
operated a business under the mark Entellect. M. Soni Dep., 7:18-19. In response
to inquiries about how the company was started, Ms. Soni responded:
A. We happened to—My husband happened to know a
person that has a product and we thought it was a good
idea to start something for me, and you know, get
involved with it in trying to establish a company that
used this specific tool.
M. Soni Dep., 8: 7-11. She further testified that “the product is a motivational test,
assessment test.” M. Soni Dep., 8:14-15 and 17. The motivational assessment test
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was generated by Mr. Neils, the person previously known to her husband. After Mr.
Neils administered and analyzed the test, he created an extensive report, which was
sent to the client. M. Soni Dep., 12:12-25 and 13:1-23.
However, Mr. Neils is not part of “Entellect” and has his own company. M.
Soni Dep., 21:8-12. Ms. Soni confirmed that Mr. Neils was not an employee of
“Entellect” in respondent’s response to Petitioner’s Request for Admission No. 28.
While Ms. Soni testified that she does not know if Mr. Neils uses the word
“Entellect” in conjunction with his company, she testified that the word “Entellect”
did not appear on the motivational assessment test that is sent to the client or down
loaded by the client. M. Soni Dep., 21:13-19. However, Mr. Soni testified that he
believed the mark was used on the test. S. Soni Dep., 41:23-25 and 42:3-4.
When asked what specifically respondent does for the company Entellect, Ms.
Soni responded “very little.” M. Soni Dep., 31:1-3. When asked again, “specifically
what do you do”, Ms. Soni responded:
Refer. Just tell the people, whoever I come in contact, I
tell them about this. And whoever I socially I [sic] meet
that I think might benefit, I –Let them know and do
referrals.
M. Soni Dep., 31:7-10. Ms. Soni then reiterated that she does nothing for the
business other than tell people about it. M. Soni Dep., 31:11-13. She also testified
that the majority of the people she tells about the service are friends, who she talks
to in schools attended by her children and she does not provide business cards to
these people. M. Soni Dep., 36:14-19. Contrary to this testimony, Mr. Soni testified
that respondent Milena Soni performs the services listed in registration:
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Q. Are you aware whether Milena Soni performed
services as listed under International Class 35?
A. Yes.
Q. And do you understand how she performs those
services?
A. Both individually, and through me and others—
consultants and assistants that are engaged and have
agreed to do so for her.
S. Soni Dep., 10:23-25 and 11:1-5 (emphasis added). Mr. Soni also testified that Ms.
Soni performed the career counseling services listed in Class 41 and the
psychological counseling listed in Class 44, in the same way. S. Soni Dep., 11:22-25
and 12:4-7.
Information provided by respondent regarding her sales and advertising
expenditures was also inconsistent, contradictory, and indefinite. Respondent’s
failure to provide proper responses to written discovery requests on these issues
prompted petitioner to move the Board to compel responses. The motion was
granted, in part, and the Board ordered respondent to provide “annual sales and
advertising figures, stated in round numbers.” Board Order dated October 1, 2010,
pp. 5-6. In her supplemental interrogatory responses, respondent stated that she
“did not keep track of either the sums expended for advertising and promotion or
the annual revenues earned from rendering the services in connection with the
ENTELLECT mark.” Respondent’s Supp. Resp. to Int. Nos. 4 and 5.
Although respondent denied that she has not spent money advertising the
services recited in the involved registration (Resp. to Req. for Admission No. 10),
she testified that the company did not spend any money on advertising or promotion
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between the time it started and her deposition. (M. Soni Dep., 37:12-15). In other
words, respondent asserted in response to the request for admission that she had
spent money advertising the services, after which she testified that she had not.
There are no business records evidencing that respondent engaged in
providing any of the services identified in her registration. The foregoing examples
of respondent’s testimony demonstrate that said testimony is characterized by
inconsistencies, contradictions, and indefiniteness; and, as such, the probative value
is not sufficient to establish that respondent has ever performed any of the services
in the registration under the mark ENTELLECT See Powermatics, Inc. v. Globe
Roofing Products Co., Inc., 341 F2d 127, 144 USPQ 430, 432 (CCPA 1965)
(inconsistencies, contradictions and uncertainties left considerable doubt about first
use date). Accordingly, we find that respondent did not use the mark ENTELLECT
in connection with any of the services set forth in the registration. The registration
therefore is void ab initio.11
Likelihood of Confusion
For the sake of completeness, we will now discuss the claim of likelihood of
confusion, which includes priority.
Priority
Since petitioner does not own a U.S. registration for the mark INTELLECT
for the services at issue in this proceeding, to establish priority it must rely on its
common law rights. As discussed above, petitioner has established use of the mark

11 In view thereof, we need not address the alternative ground of abandonment.
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INTELLECT and the trade name Intellect Staffing, Inc. in connection with
recruitment services since 1998. Burge Dep., 10:1-4 and pp. 141- 154.
It is well-settled that in the absence of any evidence of earlier use, the
earliest date upon which respondent may rely is the filing date of her underlying
application. See Trademark Act Section 7(c), 15 U.S.C. §1057 (c). See also Larami
Corp. v. Talk to Me Programs, Inc., 36 USPQ2d 1840 (TTAB 1995). Although we
found above that respondent has not used the mark ENTELLECT in connection
with any of the services set forth in the registration, for the purpose of this
discussion, we will treat the August 6, 2003 filing date of respondent’s underlying
application, Ser. No. 76539434, as the constructive date of first use of respondent’s
mark. Petitioner’s use of its common law service mark since 1998 pre-dates the
constructive use date of respondent’s mark. Accordingly, petitioner has established
priority.
Analysis of Likelihood of Confusion
As noted above, petitioner’s claim of likelihood of confusion is restricted to
respondent’s services in Classes 35 and 41. Our determination of this issue is based
on an analysis of all of the probative facts in evidence that are relevant to the
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., Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003).
Looking first at the Class 35 services, we start our analysis with the second
du Pont factor, the relationship between the parties’ services. It is well established
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that in a proceeding such as this, the similarity of the services must be determined
on the basis of the services as identified in the registration rather than on what the
evidence shows the services to be. See Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, NA, 811 F.2d 1490, 1 USPQ2d 1813, 1814 (Fed. Cir. 1987).
The Class 35 services in respondent’s registration include “employment
counseling and recruiting.” The record shows that petitioner’s services include
recruitment services. (Burge Dep., 10:1-4).
Thus, at least one of petitioner’s services is legally identical to at least one of
respondent’s services in Class 35.
Likelihood of confusion must be found if there is likely to be confusion with
respect to any item that comes within the identification of goods [and services] in
the application, or as in this case, in the registration. Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Accordingly, this du Pont factor favors a finding of likelihood of confusion with
respect to respondent’s services in Class 35.
Further, the identification of the services in Class 35 in the registration does
not restrict either the purchasers or the channels of trade. Because petitioner’s and
respondent’s services are legally identical, we can presume that the channels of
trade and classes of purchasers are the same. See American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022,
1028 (TTAB 2011); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
(“Because the goods are legally identical, they must be presumed to travel in the
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same channels of trade, and be sold to the same class of purchasers.”). See also In
re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even
though there was no evidence regarding channels of trade and classes of consumers,
the Board was entitled to rely on this legal presumption in determining likelihood of
confusion). Thus, since at least one of respondent’s services in Class 35 is legally
identical to one of petitioner’s services, the du Pont factors of channels of trade and
types of purchasers also favor a finding of likelihood of confusion.
We look next at the similarity of the marks. In comparing the marks we
must consider the appearance, sound, connotation and commercial impression of the
marks at issue. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In evaluating the
similarities between marks, the emphasis must be on the recollection of the average
purchaser who normally retains a general, rather than specific, impression of
trademarks. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009), citing
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
In this case, the marks differ only by one letter. Petitioner’s mark starts with
the letter “I,” and respondent’s mark starts with the letter “E.” The marks
INTELLECT and ENTELLECT are very similar in sound.
The marks are also very similar in appearance. Moreover, as registered,
respondent’s mark is in typed format. “Standard character or typed registrations
are federal mark registrations that make no claim to any particular font style, color,
or size of display and, thus, are not limited to any particular presentation.”
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Citigroup Inc. v. Capital City Bank Group Inc., 637 F3d 1344, 98 USPQ2d 1253,
1256 (Fed. Cir. 2011). Since respondent’s mark is unrestricted as to presentation,
we must consider that respondent’s mark could be used in the same stylization as
petitioner’s mark. Id., at 1259. This reinforces the similarity in the appearances of
the marks.
Given the overlapping services, and the similarities in appearance and sound,
the marks also have the same connotation and commercial impression.
Next, we look at respondent’s Class 41 services, which, as set forth above, are
“career counseling.” “Career counseling” is defined as “advice and information
about what type of job someone could do or how they could progress to a better job.12
As discussed infra, petitioner performs career counseling services. As part of its
vetting process for placing candidates in the appropriate jobs, petitioner tests job
applicants to determine their technical skills,13 and their logic and reasoning
capabilities, including their ability to troubleshoot problems.14 Petitioner also has
candidates take a personality profile test, which is given by a third-party testing
agency. This test determines whether candidates’ personalities and demeanor are a
match for a specific job.15 The test results are shared with the candidates to assist

12 Cambridge Business English Dictionary, Cambridge University Press (2013) - online
version located at http://dictionary.cambridge.org/us/dictionary/business-english/.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
13 Barge Dep., 56: 6-13.
14 Barge Dep., 56: 18-24.
15 Barge Dep., 57: 3-9.
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them with their job searches.16 The testing and sharing of results with candidates
constitutes career counseling. Thus, at least one of petitioner’s services is legally
identical to at least respondent’s Class 41 services and the services are deemed to
travel in the same channels of trade to the same purchasers. See In re Smith and
Mehaffey, at 1532. As with the Class 35 services, the du Pont factors of similarity of
services, channels of trade and types of purchasers favor a finding of likelihood of
confusion.
As discussed above, the marks are also similar in appearance and sound, and
also have the same connotation and commercial impression
Having considered all the evidence and argument on the relevant du Pont
factors, whether specifically discussed herein or not, we conclude that there is a
likelihood of confusion between petitioner’s use of the mark INTELLECT for
petitioner’s recruiting and placement services and respondent’s ENTELLECT mark
for the services recited in Class 35 and Class 41 in the contested registration.
Decision: The petition is sustained as to Classes 35, 41 and 44 on the ground
of non-use under Sections 1, 2, and 45 of the Trademark Act, and as to Classes 35
and 41 on the ground of likelihood of confusion under Section 2(d) of the Trademark
Act. Registration No. 3009990 will be cancelled in due course.

16 Barge Dep., 57: 25; 58:1-25; and 59:1-10.