Jeff Brownv.Patriot Guard Riders, Inc.

Trademark Trial and Appeal Board

Jul 16, 2013

No. 91181448 (T.T.A.B. Jul. 16, 2013)

Mailed:
July 16, 2013

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________
Jeff Brown
v.
Patriot Guard Riders, Inc.
________
Opposition No. 91181448
to application Serial No. 77040379
_______
Rachel Blue of McAfee & Taft for Jeff Brown.
James A. O’Malley of Clark Hill PLC for Patriot Guard Riders, Inc..
_______
Before Quinn, Lykos and Kuczma, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On November 9, 2006, Patriot Guard Riders, Inc. (“PGR” or “applicant”)
filed an application to register the mark displayed below for “organizing and
conducting support groups in the field of combat veterans and their families”
in International Class 45:1

1 Application Serial No. 77040379, filed pursuant to Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging November 11, 2005 as the date of first use any-
where and June 1, 2006 as the date of first use in commerce. The application was
published in the Official Gazette on October 30, 2007.
Subsequent to the institution of this proceeding, on June 29, 2008, applicant also
filed pursuant to Section 1(a) application Serial No. 77383586 to register the word
mark PATRIOT GUARD RIDERS in standard character form for “ornamental pins;
commemorative coins” in International Class 14; “cloth banners; fabric flags” in In-

This Opinion is Not a
Precedent of the TTAB
Opposition No. 91181448

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Several hours later on that same day, Jeff Brown (“Brown” or “oppos-
er”) filed an application2 to register the mark PATRIOT GUARD RIDER in
standard character form for the following goods and services: “metal license
plates” in International Class 6;3 “ornamental pins” in International Class 14;4
“cloth banners; fabric flags” in International Class 24;5 “hats; short-sleeved or
long-sleeved t-shirts” in International Class 25;6 “embroidered patches for
clothing” in International Class 26;7 “association services, namely, promoting
the interests of families of deceased military members and families of de-

ternational Class 24; “hats; short-sleeved and long-sleeved t-shirts; sweatshirts; do
rags” in International Class 25; “embroidered patches for clothing; armbands” in In-
ternational Class 26; and “organizing and conducting support groups in the field of
combat veterans and their families” in International Class 45. Brown Testimony
Deposition, Ex. 23. The application is currently suspended.
2 Application Serial No. 77041061, filed pursuant to Section 1(a) of the Trademark
Act. For each class of goods and services, opposer originally alleged October 27, 2005
as the date of first use anywhere and November 9, 2005 as the date of first use in
commerce.
3 Alleging, as amended, December 9, 2005 as the date of first use anywhere and in
commerce.
4 Alleging, as amended, December 14, 2005 as the date of first use anywhere and in
commerce.
5 Alleging, as amended, November 29, 2005 as the date of first use anywhere and in
commerce.
6 Alleging, as amended, December 8, 2005 as the date of first use anywhere and in
commerce.
7 Alleging, as amended, December 23, 2005 as the date of first use anywhere and in
commerce.
Opposition No. 91181448

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ceased veterans” in International Class 45.8 On March 21, 2007, further action
on opposer’s application was suspended pending disposition of the PGR’s ear-
lier filed application. Applicant’s Notice of Reliance No. 42 (Application File
for Serial No. 77041061). Opposer then filed the instant notice of opposition
against registration of applicant’s mark on December 21, 2007. In the opera-
tive pleading,9 opposer asserts claims of priority of use and likelihood of con-
fusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), and
fraud in connection with the ex parte prosecution of the involved application.
Opposer also made allegations which we construe as an ownership claim
against applicant, namely that opposer, as the owner and licensor of appli-
cant’s mark, did not give applicant permission to file the involved application
and therefore the application is void ab initio. See Trademark Act Section 1(a),
15 U.S.C. § 1051(a).
Insofar as opposer has not argued the fraud claim in his brief, in ac-
cordance with the Board’s usual practice, we find this claim to be waived. See
e.g., Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313, 1314 n.4
(TTAB 2005). We note further that applicant has conceded likelihood of confu-
sion with opposer’s pleaded mark. Board Order dated June 9, 2011, p. 7; Ap-
plicant’s Brief, p. 33. In view thereof, likelihood of confusion is no longer an
issue in this proceeding.

8 Alleging October 27, 2005 as the date of first use anywhere and November 9, 2005
as the date of first use in commerce.
9 Opposer’s second amended notice of opposition filed March 11, 2010 is the operative
complaint in this case.
Opposition No. 91181448

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With regard to opposer’s remaining claims of ownership and priority
under Section 2(d), in addition to pleading ownership of his pending applica-
tion noted above (Opposer’s Second Amended Notice of Opposition ¶ 2), oppos-
er’s allegations include the following:
1. Since November 9, 2005, Opposer has continuously used the
mark PATRIOT GUARD RIDERS in interstate commerce, for a
wide variety of goods and Services, and opposer has been actively
expanding its use of the mark. Opposer has been using [his]
PATRIOT GUARD RIDER and design in connection with a varie-
ty of goods and services, namely Metal license plates, Ornamental
pins, Cloth banners, Fabric flags, Hats; Short-sleeved or long
sleeved t-shirts; Embroidered patches for clothing and association
services, namely promoting the interests of families of deceased
military members and families of deceased veterans as specified
below:
…
3. Opposer and [his] licensees have used the PATRIOT GUARD
RIDER trademarks in connection with the sale and provision of a
variety of goods and Services in United States commerce since
2005.
…
6. Applicant operated its association services by means of a li-
cense from Opposer and was aware of Opposer’s use of the virtu-
ally identical mark in connection with association services and a
variety of goods at the time Application No. 77040379 for the
mark PATRIOT GUARD RIDERS RIDING WITH RESPECT was
filed, as reflected by the specimens submitted therewith which re-
flect the mark as it is shown in the Opposer’s application. …

7. Applicant’s use of the mark PATRIOT GUARD RIDERS [was]
by way of a license.

8. Applicant’s filing of 77/040379 was not authorized by the Op-
poser.

Opposition No. 91181448

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In its answer,10 applicant denied the salient allegations therein. Appli-
cant also asserted various affirmative and putative defenses including “Op-
poser’s use of the pleaded marks was done on behalf of Applicant in Opposer’s
capacity as founder and leader of Applicant; Opposer never claimed individu-
al ownership, acted as an individual owner, nor licensed use of the pleaded
marks, either expressly or impliedly-in-fact, to Applicant….” The case is now
fully briefed.
I. Evidentiary Objections
On November 21, 2011, the same day he filed his main brief, opposer
filed a communication captioned as “Opposer’s Motion to Amend Notice of Re-
liance Pursuant to Rule 2.122(e)” to make of record all evidence submitted by
opposer in support of his summary judgment motion (filed January 22, 2009)
as well as the Supplemental Declaration of Courtney Bru submitted with op-
poser’s responsive brief to applicant’s cross-motion for summary judgment
(filed February 26, 2009), or in the alternative, to submit the entirety of op-
poser’s discovery responses. The Board construed opposer’s motion as one to
reopen his testimony period for the purpose of submitting additional notices of
reliance, and denied said motion on December 31, 2012. Opposer, however, in
his main brief relied extensively on these submissions in arguing his case.
Applicant has objected to all references to evidentiary materials excluded by
the Board’s interlocutory order. Applicant’s objection is sustained; no consid-

10 Applicant’s objections to opposer’s second amended notice of opposition were ad-
dressed in the Board’s interlocutory order dated June 9, 2011.
Opposition No. 91181448

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eration has been given to these late-filed submissions.11 We hasten to add that
counsel for opposer’s attempt to introduce new evidence with the main brief
amounts to a blatant disregard of Board rules governing the introduction of
evidence at trial, or at best, a gross unfamiliarity with such rules. Counsel is
admonished to familiarize herself with Board practice and procedure when
litigating before the Board in future proceedings.
II. The Record
Pursuant to Trademark Rule 2.122(b), the record includes applicant’s
application file and the pleadings. In addition, the parties introduced the fol-
lowing:12
A. Opposer’s Evidence

Opposer introduced the following testimony depositions:

1. The testimony deposition of opposer Jeff Brown with attached
Exhibits 1-31 introduced by opposer and one exhibit intro-
duced by applicant; and

2. The testimony deposition of Ronny R. Awtry with attached
Exhibits 1-24 introduced by opposer and one exhibit intro-
duced by applicant.

Opposer also introduced the following evidence by notice of reliance on
April 20, 2011:

11 Applicant also asserted specific “objections” to opposer’s “Recitation of Facts” in op-
poser’s main brief. Insofar as such “objections” do not constitute formal evidentiary
objections, they have not been considered.
12 As per the parties’ “Joint Motion to Rely on Stipulated Evidence,” filed April 28,
2010 and approved by the Board on May 6, 2010, the parties agreed to allow for the
submission under notice of reliance of “any document which it obtained from the oth-
er Party, or which it produced to the other Party,” pursuant to a request under Fed.
R. Civ. P. 34 and to stipulate to the authenticity thereto.
Opposition No. 91181448

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1. Notice of Reliance No. 1 comprised of the file wrapper for
United States Trademark Application Serial No. 77383586
for the mark PATRIOT GUARD RIDERS in standard
characters filed on January 29, 2008;

2. Notice of Reliance No. 2 comprised of the discovery deposi-
tion of William H. Richart taken on October 13, 2008 and
Exhibits 5-19 attached thereto;

3. Notice of Reliance No. 3 comprised of the discovery deposi-
tion of Bonnie Perry taken on October 13, 2008 and Exhib-
its 1, 2, 20-29 and 31 attached thereto;

4. Notice of Reliance No. 4 comprised of the discovery deposi-
tion of Kurt Mayer taken on October 13, 2008 and Exhibits
3 and 4 attached thereto; and

5. Notice of Reliance No. 5 comprised of printouts of the PGR
Gear Store home page, the PGR terms of use, the PGR his-
tory page and the PGR archived home pages from the pub-
licly accessible portions of the PGR’s Internet website,
www.patriotguard.org as the pages appeared on April 18,
2011.

B. Applicant’s Evidence

Applicant introduced the following testimony depositions:

1. The testimony deposition of William H. Richart taken on
August 1, 2011 and Exhibits 2-9 attached thereto;

2. The testimony deposition of Jason D. Wallin taken on Au-
gust 1, 2011 and Exhibits 10-23 attached thereto;

3. The testimony deposition of Kurt A. Mayer taken on Au-
gust 2, 2011 and Exhibits 24-34 attached thereto; and

4. The testimony deposition of Bonnie R. Perry taken on Au-
gust 2, 2011 and Exhibits 6, 7, 33 and 35-37 attached
thereto.

Opposition No. 91181448

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Applicant also introduced the following evidence by notice of reliance on
August 8, 2011:
1. Notice of Reliance No. 1 comprised of portions of the dis-
covery deposition of opposer Jeff Brown taken on October
14, 2008 and all referenced exhibits in these portions;

2. Notice of Reliance No. 2 comprised of portions of Appli-
cant’s First Requests for Admission to Opposer served on
May 7, 2008;

3. Notice of Reliance No. 3 comprised of portions of Opposer’s
Response to Applicant’s First Requests for Admission
which were served on June 6, 2008;

4. Notice of Reliance No. 4 comprised of portions of Opposer’s
Amended Responses to Certain Requests for Admission
served on June 10, 2008;

5. Notice of Reliance No. 5 comprised of portions of Appli-
cant’s First Set of Interrogatories to Opposer served on
May 7, 2008;

6. Notice of Reliance No. 6 comprised of portions of Opposer’s
Answer to Applicant’s First Set of Interrogatories which
were served on June 6, 2008;

7. Notice of Reliance No. 7 comprised of portions of Appli-
cant’s Second Set of Interrogatories served on July 17,
2008;

8. Notice of Reliance No. 8 comprised of portions of Opposer’s
Amended Responses to Applicant’s Second Set of Interrog-
atories served on October 6, 2008;

9. Notice of Reliance No. 9 comprised of pages printed from
www.kspatriotguard.org/history/htm printed on April 14,
2008 entitled “Patriot Guard History” (“PGR 000665-PGR
000666”);

10. Notice of Reliance No. 10 comprised of pages printed from
www.kspatriotguard.org/missions.htm on October 24, 2008
Opposition No. 91181448

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entitled “Patriot Guard Mission History” (“PGR 006945-
PGR 0069948”);

11. Notice of Reliance No. 11 comprised of “Patriot Guard”
sign-up sheet dated November 2, 2005 (“PGR 006961-PGR
006962);

12. Notice of Reliance No. 12 comprised of an online article
from CYCLECONNECTIONS.COM, published November
1, 2005 and printed on April 14, 2008 entitled “Veteran
Riders: Kansas American Legion Riders” (“PGR 00635-
PGR 000640”);

13. Notice of Reliance No. 13 comprised of online article from
WARCHILD.BLOG-CITY.COM, published on November 9,
2005 and printed on April 14, 2008 entitled “Patriots
Guard Fallen Heroes from Looney Baptists” (“PGR
000635-PGR 000640”);

14. Notice of Reliance No. 14 comprised of online article from
MVLEADVOCATE.COM, published on April 13, 2006 and
printed on April 14, 2008 entitled “Patriot Guard Riders
ride at funeral Wednesday” (“PGR 000604-PGR 000606”);

15. Notice of Reliance No. 15 comprised of email exchanges be-
tween Craig Hansen of the Kansas ALR and Opposer dat-
ed November 10, 2005 wherein Opposer states that a web-
site is in the process of being set up and asking Hansen to
be a state captain in Kansas (“Brown 010358”);

16. Notice of Reliance No. 16 comprised of email exchanges
from Opposer Brown to several others dated November 10,
2005 seeking state captains for the PGR and which in-
cludes a response from David “Preacher” Slocum volun-
teering to be state captain in North Carolina (“Brown
010369”);

17. Notice of Reliance No. 17 comprised of the identical email
exchange from Opposer Brown to several others identified
in Notice of Reliance No. 16 but includes a response from
Keith Callaway volunteering to be state captain in Iowa
(“Brown 010372”);

Opposition No. 91181448

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18. Notice of Reliance No. 18 comprised of an email exchange
between Adam Taylor and Opposer dated November 11,
2005 in which Taylor responds to Opposer’s call for State
Captains by volunteering to assist in Arizona (“Brown
010373”);

19. Notice of Reliance No. 19 comprised of forum postings on
Applicant’s website, PATRIOTGUARD.ORG by Opposer
and others dated December 4, 2005 on the subject of
patches for members of the organization (“PGR 006265-
PGR 006266”);

20. Notice of Reliance No. 20 comprised of forum posting from
PATRIOTGUARD.ORG by Brad “Knobby” Huntley dated
December 21, 2005 requesting if he could print out a PGR
logo to attach to his vest when attending funerals (“PGR
06236”);

21. Notice of Reliance No. 21 comprised of email exchanges be-
tween Opposer and various others dated November 13,
2005 wherein Opposer states that patches have been or-
dered and will be available in approximately three weeks
(“Brown 010381-Brown 010382”);

22. Notice of Reliance No. 22 comprised of forum posting on
PATRIOTGUARD.ORG website by Opposer and others
dated December 21, 2005-August 30, 2006 discussing the
presentation of plaques to the family members of deceased
soldiers (“PGR 003201-PGR 003228”);

23. Notice of Reliance No. 23 comprised of forum postings on
PATRIOTGUARD.ORG website by Opposer and others
dated December 26-28, 2005 discussing PGR sleeve patch-
es for state captains and ride captains (“PGR 006421-PGR
006422”);

24. Notice of Reliance No. 24 comprised of PGR Store Invoice
(undated) for various items such as patches, decals, flags
and armbands (“Brown 008026”);

25. Notice of Reliance No. 25 comprised of email exchange be-
tween Opposer and a person identified as “Larry”
(hellraiserusmc@yahoo.com) dated December 7, 2006 indi-
Opposition No. 91181448

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cating that Larry should make checks payable to “Twist-
er’s PGR Store” (“Brown 007774”);

26. Notice of Reliance No. 26 comprised of email exchanges be-
tween Opposer and Michael French dated between Janu-
ary 1 and January 12, 2008 regarding the sale of items on
“Twister’s PGR Store” website (“Brown 004368-Brown
004371”);

27. Notice of Reliance No. 27 comprised of email exchange be-
tween Opposer and John Jacobs on November 17, 2006
wherein Jacobs provides Opposer with a blank copyright
application form and instructions on how to complete the
form (“Brown 010162-Brown 010166”);

28. Notice of Reliance No. 28 comprised of email exchange be-
tween Opposer and John Jacobs on January 22, 2007
wherein Opposer sends Jacobs a copy of the rejection letter
Opposer received from the United States Copyright Office
(“Brown 010268-Brown 010270”);

29. Notice of Reliance No. 29 comprised of email exchanges
dated January 22-23, 2007 between John Jacobs and Op-
poser with Jacobs’ response to Brown regarding the United
States Copyright Office’s rejection letter (“Brown 010209”);

30. Notice of Reliance No. 30 comprised of email exchanges be-
tween Opposer and William Richart and others dated Au-
gust 17, 2007 regarding the suspension of Opposer’s privi-
leges to post comments on the PATRIOTGUARD.ORG fo-
rum pages (“PGR 002969-PGR 002970”);

31. Notice of Reliance No. 31 comprised of email exchange be-
tween Opposer and William Richart and others dated
January 4, 2008 regarding the termination of Opposer’s
and his wife’s accounts to access the
PATRIOTGUARD.ORG website (“PGR 002966”);

32. Notice of Reliance No. 32 comprised of Declaration of Bill
“Snap” Lines dated January 16, 2009 and Exhibits A and
B attached thereto;

33. Notice of Reliance No. 33 comprised of PGR forum posting
from PATRITOGUARD.ORG website by Opposer dated
Opposition No. 91181448

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October 6, 2006 wherein Opposer responds to a posting by
another critical of Opposer (“PGR 001831-PGR 001833”);

34. Notice of Reliance No. 34 comprised of dictionary defini-
tion of “association” from MERRIAM-WEBSTER.COM
online dictionary;

35. Notice of Reliance No. 35 comprised of copy of pertinent
pages from Black’s Law Dictionary, 8th Ed., © 1999 con-
taining the definitions of the words “association” and “or-
ganization”;

36. Notice of Reliance No. 36 comprised of copy of pertinent
pages from Webster’s II New College Dictionary, © 1995 for
the definitions of the words “association” and “organiza-
tion”;

37. Notice of Reliance No. 37 comprised of copy of the perti-
nent pages from Webster’s New Encyclopedic Dictionary, ©
2002 for the definitions of the words “association” and “or-
ganization”

38. Notice of Reliance No. 38 comprised of copy of the perti-
nent pages from Merriam-Webster’s Collegiate Dictionary,
© 1998 for the definitions of the words “association” and
“organization;”

39. Notice of Reliance No. 39 comprised of copy of the perti-
nent pages from Webster’s Ninth New Collegiate Diction-
ary, © 1991 for the definitions of the words “association”
and “organization;”

40. Notice of Reliance No. 40 comprised of copy of the perti-
nent pages from The American Heritage Dictionary, 2nd
College Edition, © 1985 for the definitions of the words
“association” and “organization;”

41. Notice of Reliance No. 41 comprised of copy of the perti-
nent pages from Webster’s New World College Dictionary,
3rd Edition, © 1997 for the definitions of the words “asso-
ciation” and “organization;”

42. Notice of Reliance No. 42 comprised of file wrapper for
United States Trademark Application Serial No. 77041061
Opposition No. 91181448

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for the mark PATRIOT GUARD RIDER filed on November
9, 2006 by Opposer; and

43. Notice of Reliance No. 43 comprised of email exchanges be-
tween Opposer and Tom Leahy and various others dated
May 15, 2006 regarding the formational history of the
PGR (“PGR 002236-PGR 002237”).

III. Standing
As noted above, opposer's pleaded application Serial No. 77041061 has
been suspended on the ground that applicant’s earlier-filed application consti-
tutes a potential bar to registration under Section 2(d). Applicant’s Notice of
Reliance No. 42. The evidence of opposer’s pending trademark application and
Office action that said application has been suspended pending resolution of
applicant’s application demonstrate that opposer has a reasonable belief that
he would be damaged by registration of applicant's mark. See Weather-
ford/Lamb Inc. v. C&J Energy Services Inc., 96 USPQ2d 1834, 1837 (TTAB
2010) (Office action suspending plaintiff's pending application pending possi-
ble refusal based on alleged likelihood of confusion with defendant's registra-
tion made of record). Thus, the record shows that opposer possesses a real in-
terest in this proceeding beyond that of a mere intermeddler and a reasonable
basis for his belief of damage. See Ritchie v. Simpson, 170 F.3d 1902, 50
USPQ2d 1023 (Fed. Cir. 1999); Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton Indus., Inc. v. Ralston Purina
Opposition No. 91181448

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Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). We find, therefore, that op-
poser has proven his standing to bring the instant opposition proceeding.13
IV. List of Relevant Entities and Individuals
Given the factual complexity of this proceeding, the following is a brief
description of the relevant entities and individuals who either appeared as
witnesses or are mentioned in the record:
A. Entity Organizations
● Westboro Baptist Church of Topeka, Kansas (“WBC”) –
Non-party to this proceeding that spurred the formation of the
applicant and its services for combat veterans and their families.
The church and its members believe the deaths of U.S. military
personnel in the Iraq and Afghanistan wars is God’s way of pun-
ishing the United States for its tolerance of homosexuality.
Church members often display their protest by attending and
disrupting funerals for fallen service men and women.

● Patriot Guard Riders, Inc. (“PGR”) – Applicant to this pro-
ceeding. An organization created to unite veterans and motorcy-
cle rider groups to escort funeral processions for fallen soldiers
and to set up a screen or barrier between WBC protesters and
mourners at funerals. In addition to providing the funeral es-
corts, it later began providing assistance to wounded veterans
and their families. The PGR operates a website under the do-
main name PATRIOTGUARD.ORG.

● Patriot Guard Rider’s Store, LLC (“PGR Store”) – A non-
party to this proceeding. An online store created to sell merchan-
dise such as patches, pins, hats, decals and flags to PGR mem-
bers. Originally the store was a subpage of the
PATRIOTGUARD.ORG website. As membership in the organiza-
tion grew, it was given a different server and domain name,
PATRIOTGUARDSTORE.ORG to accommodate increased Inter-
net traffic. A dispute over use of the funds generated by the store

13 Once a document is admitted into evidence, it may be relied on by an adverse par-
ty and considered by the Board for any relevant purpose. Anheuser-Busch, Inc. v. Ma-
jor Mud & Chemical Co., Inc., 221 USPQ 1191, 1192 n.7 (TTAB 1984).
Opposition No. 91181448

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contributed to the forced resignation of opposer Brown from the
applicant’s board in November 2006.

● Twister’s PGR Store – A non-party to this proceeding. After
Brown resigned from the PGR board, he changed the homepage
of the PGR Store website to identify it as “Twister’s PGR Store”
and promised to “wind down” the store by selling the remaining
inventory before closing it. Brown however continues to run the
Twister’s PGR Store as a for-profit enterprise selling the collat-
eral goods identified in his pleaded trademark application.

● “Head Shed” – A nickname given to the leadership group of
the applicant. It consists of the PGR’s Board of Directors (initial-
ly three and later expanded to five members) as well as non-
board members who had key leadership positions in the PGR or-
ganization either at the national or state level.

● “Ride Captains” – A name given to head organizers of PGR at
the state level. PGR “Ride Captains” are responsible for finding
out when funerals for fallen military members will be held in
their state and organizing a “Mission” consisting of motorcycle
riders who represent the PGR at the funeral and provide screen-
ing for mourners from WBC protestors.

● Kansas American Legion Riders (Kansas ALR) – Non-
party to this proceeding that began sending motorcycle riders to
funerals attended by WBC protestors who called themselves the
“Kansas Patriot Guard.”

B. Individuals

● Jeff Brown (“Brown”) – Opposer in this proceeding. Brown
is credited as being a co-founder of the Applicant and served as
its initial President/Executive Director, and is listed as one of
three original incorporators of the PGR non-profit corporation.
Resigned from his leadership position on November 7, 2006 after
other Board members became concerned that Brown’s operation
of the PGR Store as a for-profit entity constituted “self-dealing”
and could potentially jeopardize the PGR’s Section 501(c)(3) non-
profit status. Ride name: “Twister.”

● Bonnie Brown – Wife of opposer and member of Patriot
Guard Riders Store, LLC. She assisted her husband Brown in
Opposition No. 91181448

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the operation of the online PGR Store and subsequent “Twister’s
PGR Store.”

● Jason Wallin – A co-founder of the PGR and motorcycle rider
living in Greeley, Colorado. On November 9, 2009, obtained the
domain name PATRIOTGUARD.ORG and initially set up and
hosted the applicant’s website. Wallin is one of the three original
incorporators of the PGR and served as the Treasurer until his
resignation from the Board. He is also listed as the signatory for
the trademark application subject to this opposition. Ride
name: “Waldo.”

● Kurt Mayer – The third incorporator in the PGR non-profit
corporation. He contacted Wallin after reading about the organi-
zation in an online news story and joined the pre-incorporated
organization within a few days of the formation of the group in
November 2005. He served as its national communications direc-
tor and was Secretary of the PGR until his resignation approxi-
mately nine months after formation of the unincorporated asso-
ciation. Ride name: “Ventura Cowboy.”

● Bill Lines (now deceased) – Joined the PGR in December
2005. Replaced Kurt Mayer as Secretary of the PGR after May-
er’s resignation, and later became President/Executive Director
after Brown’s resignation in November 2006. Ride Name:
“Snap.”

● Bonnie Cutler/Perry – An acquaintance of Wallin. During
the early inception of the PGR, she became the “Ride Captain”
for the State of Texas after being contacted by Wallin and later
became the National Ride Captain who coordinated the state ride
captains. A member of the “Head Shed,” she eventually became a
member of the Board of Directors after the size was expanded
from three to five members. Ride name: “Bonru.”

● Ronny Awtry – An early member of the organization who was
a regional Ride Captain in Texas. He became the “contact coordi-
nator” on a national basis for the PGR who would obtain infor-
mation about military member funerals and contact riders in a
specific geographic area to attend the funerals. Also was a mem-
ber of the “Head Shed” and later Secretary of the PGR after
Brown resigned and Lines became President/Executive Director.
Ride Name: “Bear.”

Opposition No. 91181448

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● Ed Mueller – An early member of the “Head Shed” who later
became an at-large Board of Directors member of the applicant
when the board was expanded to five members. He also served
briefly as President of the PGR between Bill Lines and William
Richart. Ride Name: “Wescoot2.”

● John Jacobs – A motorcycle rider and an in-house lawyer for
a corporation in Pennsylvania who provided legal advice on a pro
bono basis to the PGR, and member of the “Head Shed.” He dealt
primarily with Brown, then President/Executive Director of the
applicant. Ride name: “Johnnysquire.”

● William H. Richart – A motorcycle rider who joined the appli-
cant organization shortly after it was formally incorporated in
February 2006. Soon after joining, he became the Missouri state
Ride Captain and later became the national forum moderator, of
an online bulletin board operated under the PGR website. He
was elected to the Board of Directors as an at-large vice presi-
dent in 2007 and later succeeded Bill Lines and Ed Mueller as
President/Executive Director. Ride name: “Whirlwind.”

● Jon Tatum – Certified Public Accountant. Hired by Brown to
audit the books of the PGR and provide an opinion on the PGR’s
liability and Section 501(c)(3) status in relation to Brown’s opera-
tion of the Patriot Guard Store.

V. Findings of Fact

Listed below in chronological order are the following findings of fact es-
tablished by the evidence of record:
DATE EVENT

Summer 2005 Members of the Westboro Baptist Church (“WBC”) in To-
peka, Kansas, who view the deaths of the U.S. soldiers as
God’s way of punishing America for its tolerance of homo-
sexuality and gay rights, begin protesting at funerals for
fallen soldiers from the Iraq and Afghanistan wars. Appli-
cant’s Notice of Reliance Nos. 1, 9, 12, 13 14; Brown Dis-
covery Deposition, Ex. 12. The protests garner news cover-
age and many people, particularly veterans groups, find
these protests repugnant and disrespectful to the deceased
soldier and their families. One such group, members of the
Opposition No. 91181448

- 18 -
Kansas American Legion chapter in Mulvane, Kansas, de-
cide to counteract the WBC’s protests by forming a group
of motorcycle riding members to attend funerals for fallen
soldiers. The riders, with pre-clearance from the families
of the soldiers and by working closely with local law en-
forcement agencies, provide escorts of the funeral proces-
sions and position themselves at the site of the funeral
service so as to block the WBC protestors from the view of
the mourners and, if necessary, idle their motorcycle en-
gines to drown out the chants of the protestors. Applicant’s
Notice of Reliance Nos. 12, 13, and 14.

Oct. 27, 2005 Members of the Kansas American Legion Riders (“ALR”)
attend a funeral for a fallen soldier in Tonganoxie, Kansas.
At the service, they publically announce that they are the
Kansas ALR “Patriot Guard.” Applicant’s Notice of Reli-
ance No. 9.

Oct. 2005 Opposer Jeff Brown, a motorcycle rider living in Broken
Arrow, Oklahoma, learns of the WBC protests and the
Kansas ALR Patriot Guard. Applicant’s Notice of Reliance
No. 1; Brown Discovery Deposition 89:3-90:25.

Nov. 2, 2005 Brown attends a funeral for a soldier in South Haven,
Kansas at which WBC protestors are present. Brown rides
to the service and participates with the Kansas ALR Pa-
triot Guard. After the service, Brown signs a contact list
which is circulated after the service requesting notification
of future rides. Applicant’s Notice of Reliance No. 11.

Nov. 8, 2005 Brown learns of another WBC protest planned for a funer-
al service in Edmond, Oklahoma. Brown has difficulty
finding information such as the time and place for the ser-
vice and has to resort to checking the WBC’s own website.
Brown rides to Edmond on his own where he meets up
with members of the Kansas ALR Patriot Guard. After the
service, Brown talks with some of the Kansas ALR Patriot
Guard members about the need for an Internet based net-
work to organize veterans groups and motorcycle riders
nationwide to attend such services. Those he spoke with
like the idea and encourage Brown to form such a network.
Brown Testimony Deposition 6:19-7:23, 143:18-147:25;
Applicant’s Notice of Reliance No. 6 (Opposer’s Response
to Applicant’s Interrogatory No. 12).
Opposition

Nov.

Nov.

Nov.

Nov.
No. 911814
8, 2005
9, 2005
10, 2005
10, 2005
48
Upon
sends
such
(VFW
ing T
forme
soldie
tive r
7:15-2
Respo
One s
Colora
inform
9:11-1
net d
Brown
untee
charg
Testim
Wallin
soldie
homet
nounc
Depos
Wallin
graph
Brown
the fo
reque
websi
so and
er” on
ing “C
Wallin
applic
ing. W
Wallin
upcom
Brown
furthe
returning
out a mas
as the Am
), CombatV
hunder,”
d to coord
rs. Almost
esponses t
3; Applica
nse to App
uch respo
do, a mot
ation tech
5. On his
omain na
that the
rs to host
e. Wallin
ony Depo
notifies
r is schedu
own of Gr
ed that th
ition 17:5-
sends an
ic artist f
responds
llowing log
st that W
te. Brown
tells Brow
the PATR
oming So
for the P
ation whic
allin Test
sends Br
ing funer
’s email l
r adds tha
- 19 -
home from
s email to
erican Le
ets and m
proposing
inate ride
immedia
o his ema
nt’s Notic
licant’s In
nse comes
orcycle en
nology fie
own initia
me, PATR
domain n
the webs
Testimon
sition Exs
Brown tha
led for No
eeley and
ey will be
18:1; Wall
email to B
riend to
by sayin
o wh
allin place
Testimony
n that th
IOTGUAR
on.” The lo
GR websi
h is the su
imony Dep
own an e
al service
ist that he
t he has a
the serv
various v
gion, Vete
otorcycle
that a na
missions
tely he rec
il. Brown
e of Relia
terrogator
from Jas
thusiast w
ld. Brown
tive, Wall
IOTGUAR
ame has b
ite for th
y Deposit
. 10 and
t a funer
vember 11
that WB
at the serv
in Testimo
rown offe
design a
g that he
ich he ema
the logo
Depositi
e logo is se
D.ORG w
go Brown
te is ident
bject of th
osition 26
mail with
in Greele
has comp
rranged fo
ice in Edm
eterans’ or
rans of Fo
groups su
tional as
to funera
eives num
Testimony
nce No. 6
y No. 12).
on Wallin
ho also w
Testimony
in register
D.ORG a
een secur
e organiz
ion 14:6-1
11. At the
al service
, Veterans
C protesto
ice. Wallin
ny Deposi
ring the s
logo for “
has alrea
ils to Wal
on the or
on Ex. 8.
rving as a
eb site wit
designed
ical to the
is opposit
:4-27:18; E
the detail
y for dist
iled by th
r several r
ond, Brow
ganization
reign Wa
ch as “Ro
sociation b
ls for falle
erous pos
Depositio
(Opposer
of Greele
orks in th
Depositio
s the Inte
nd notifi
ed, and vo
ation at n
6:1; Wall
same tim
for a falle
Day, in h
rs have a
Testimon
tion Ex. 12
ervices of
our cause
dy designe
lin with th
ganization
Wallin do
“placehol
h the wor
and sent
logo in th
ion procee
x. 13.
s about th
ribution o
is time, an
iders in th
n
s
rs
ll-
e
n
i-
n
’s
y,
e
n
r-
es
l-
o
in
e,
n
is
n-
y
.
a
.”
d
e
’s
es
d-
d-
to
e
d-
e
n
d
e
Opposition

Nov.

Nov.

Nov.

Mid
No. 911814
10, 2005
11, 2005
11, 2005
Nov. 2005
48
Greel
osition
from
sched
Day, t
more
45:15-
Brown
group
forme
organ
Wallin
is des
ride c
23; Ap
Wallin
Colora
out se
Brown
of the
copies
affixe
ing th
bers o
interv
Later
the or
Brown
comm
Wallin
forwa
promp
Wallin
The P
memb
Intern
nerals
Wallin
missio
with t
ey area to
17:5-18:
another m
uled to be
hat he can
riders to
46:8, Ex. 1
sends a
s announc
d and that
ize and co
is design
ignated th
aptain for
plicant’s N
and seve
do. Prior
veral pape
which ar
motorcycl
of the log
d to motor
e service
f the Patr
iewed. Wa
that day,
ganization
revises
ent that t
Testimo
rds the re
tly posts
Testimon
GR memb
ers as wo
et and th
. Kurt Ma
who in t
n rides, M
he media.
- 20 -
attend the
7, Ex. 12.
ember ind
buried in
attend on
join him
8.
mass em
ing that th
ride capt
ordinate m
ated the r
e captain
Texas. Pe
otice of R
ral others
to leaving
r copies o
e then aff
es having
o are take
cycles ther
because of
iot Guard
llin Testim
Brown dr
and circ
the Missio
he statem
ny Deposi
vised mis
it on the
y Depositi
ership gr
rd spreads
rough new
yer learn
urn refers
ayer beco
Mayer Tes
service. W
Brown a
icating th
Hudson, W
behalf of
. Wallin
ail to var
e Patriot G
ains are n
ission rid
ide captai
in Oklah
rry Testim
eliance No
ride to th
on the m
f the PGR
ixed with
windshield
n to the fu
e. Local n
the WBC
Riders are
ony Depo
afts a “M
ulates it v
n Statem
ent shoul
tion 46:20
sion state
PATRIOTG
on 49:3-5
ows rapid
about th
s media co
s about th
him to P
mes an u
timony De
allin Test
lso receive
at anothe
isconsin
the group
Testimony
ious indiv
uard Ride
eeded in e
es to fune
n for Color
oma, Bonn
ony Depo
s. 16 and 1
e funeral
ission, W
logo
adhesive t
s. Severa
neral serv
ews medi
protestor
filmed an
sition 34:2
ission Sta
ia email fo
ent after
d be gend
-49:2, Ex.
ment to
UARD.O
1:17, Ex. 2
ly to seve
e organiza
verage of
e group a
erry. Whi
nofficial s
position 8
imony De
s an ema
r soldier
on Veteran
and asks f
Depositio
iduals an
rs has bee
ach state
ral service
ado, Brow
ie Perry
sition 9:1
7.
in Greele
allin prin
designed b
ape to som
l addition
ice and a
a are cove
s and mem
d some a
3-39:11.
tement” f
r commen
receiving
er neutra
19. Brow
Wallin wh
RG websit
0.
ral hundre
tion on th
military f
nd contac
le attendin
pokesperso
:21-10:5.
p-
il
is
s
or
n
d
n
to
s.
n
is
0-
y,
ts
y
e
al
re
r-
-
re
or
t.
a
l.
n
o
e.
d
e
u-
ts
g
n
Opposition No. 91181448

- 21 -

Mid Nov. –
Dec. 2005 Although the PGR is not formally incorporated at this
time, a leadership structure known as the “Head Shed”
develops. Opposer’s Notice of Reliance No. 3; Perry Discov-
ery Deposition 13:17-21; Awtry Discovery Deposition 9:11-
24, Applicant’s Ex. 1. It includes Brown, as National Pres-
ident/Executive Director, Wallin as Vice Presi-
dent/Secretary, and Perry as the National Ride Captain.
Brown Testimony Deposition 9:15-19; Perry Testimony
Deposition 10:12-11:21. Mayer becomes the National Pub-
lic Relations Director and quickly becomes one of the pub-
lic faces for the PGR with the media. Mayer Testimony
Deposition 10:16-12:6. Ronnie Awtry becomes the National
Communications Coordinator whose responsibilities in-
clude finding out when and where military funerals will
take place and distributing the information to the state
and regional ride captains to organize missions. Awtry
Testimony Deposition 12:24-13:24.

Late Nov. 2005 PGR members express an interest to Brown and other
members of the Head Shed about obtaining patches, de-
cals, ornamental pins, hats and flags to denote that they
are members of the PGR while attending missions. Wallin
Testimony Deposition 23:4-24:4, Ex. 13; Applicant Notice
of Reliance No. 21. Brown takes on the responsibility for
contacting vendors to make various items of merchandise
with the PGR logo. Brown Testimony Deposition 47:9-
48:21, Exs. 10 and 11. Because the organization consists
entirely of volunteers and has no dues structure, it has no
source of income at this time. Brown advances personal
funds to have the merchandise manufactured. Brown Tes-
timony Deposition 59:16-60:5; Exs. 10 and 11. The general
intent was that the sale of the merchandise would be the
primary revenue stream for the PGR to fund its associa-
tion services. Awtry Testimony Deposition Ex. 1. Wallin,
using his own money as well, places pay-per-click adver-
tisements on the PGR website in order to fund the pur-
chase of computer equipment and software necessary to
the operation of the PATRIOTGUARD.ORG website. Aw-
try Testimony Deposition 49:16-50:13; Wallin Testimony
Deposition 82:6-9; Mayer Testimony Deposition 16:4-17:5.

Opposition

Dec.

Mid-

Feb.

Feb.
No. 911814
2005
Dec. 2005
2006
2006
48
Wallin
the P
public
24, Ex
B
the or
by co
regist
online
be pos
Also o
“PGR
web p
memb
the P
follow
our m
purch
Testim
Wallin
al pla
sented
after
44:20-
captai
the pl
pay fo
Applic
Memb
Testim
Brown
cle rid
Penns
vice t
associ
handl
190:23
of Rel
Brown
tradem
but th
with the
GR websit
for viewin
. 23. The
rown desi
ganization
mpleting a
ered, the m
“bulletin
ted and in
n the hom
Store” wh
age of th
ers can pu
GR logo
ing statem
issions fur
ase the ite
ony Depo
begins a
ques displ
by PGR m
each fune
48: 3, Ex.
ns to don
aques, sta
r them w
ant’s Noti
ership of t
ony Depo
contacts
er who is
ylvania. J
o the PGR
ation is n
e commer
-191:6, Ap
iance No.
asks Jac
ark appl
at it will
- 22 -
assistance
e which i
g. Wallin
home pag
gned as w
and invite
registrat
ember h
boards” w
formation
e page a n
ich provi
e PATRIO
rchase of
. At the
ent: “If yo
ther, click
ms you w
sition 26:1
forum disc
aying the
embers t
ral service
30. Brow
ate the m
ting that
ith revenu
ce of Relia
he PGR is
sition 9:20
John Jaco
an in-ho
acobs volu
associatio
on-profit a
cial client
plicant’s E
42 (Jacobs
obs about
ication. Ja
cost about
of anothe
s now ava
Testimon
e promine
ell as the
s people t
ion form
as access t
here comm
exchange
ew link is
des a dire
TGUARD
ficial PGR
bottom o
u’d like to
on the Pa
ant from t
8-28:24, E
ussion ab
PGR logo
o families
. Mayer
n declines
oney to pa
the “Natio
e generat
nce No. 22
in the ten
-23.
bs, a PGR
use lawye
nteers to o
n based u
nd that h
s. Brown
x. 1. See a
’ Withdraw
the proce
cobs respo
$750 in fi
r volunte
ilable to
y Depositi
ntly displ
mission s
o join the o
on the we
o various
ents and
d about m
introduce
ct link to
.ORG we
merchand
f the home
support t
id Ads fre
he PGR St
x. 25.
out obtain
that c
of the dece
Testimony
an offer b
y for the
nal” organ
ed by the
.
s of thousa
member a
r for a cor
ffer pro bo
pon the f
e is not p
Testimony
lso Applic
al of Repr
ss for filin
nds that
ling fees. H
er redesign
the gener
on 56:20-5
ays the log
tatement
rganizatio
bsite. On
“forums”
photos ca
ission ride
d called th
an interi
bsite whe
ise bearin
page is th
he PGR an
quently an
ore.” May
ing memor
ould be pr
ased soldi
Depositio
y the sta
purchase
ization w
PGR Stor
nds. Brow
nd motorc
poration
no legal a
act that th
ermitted
Depositio
ant’s Noti
esentation
g a feder
he can do
owever, n
s
al
7:
o
of
n
ce
or
n
s.
e
or
re
g
e
d
d
er
i-
e-
er
n
te
of
ill
e.
n
y-
in
d-
e
to
n
ce
).
al
it
o
Opposition No. 91181448

- 23 -
application is filed at this time and there is no evidence in
the record that the requested filing fees were paid by any-
one to Jacobs to file the application prior to November 9,
2006. Brown Testimony Deposition 191:21-195:1.

Feb. 13, 2006 Brown along with his wife, Bonnie, file the necessary pa-
perwork with the Oklahoma Secretary of State’s office to
create a for-profit limited liability company called the PGR
Store, LLC. Applicant’s Notice of Reliance No. 3 (Opposer’s
response to Requests for Admission No. 124). Bonnie and
Jeff Brown are listed as the only members of the LLC and
Bonnie Brown is the majority owner.

Feb. 21, 2006 As the membership of the PGR approaches the tens of
thousands, the “Head Shed” decide that the PGR should be
formally organized as a non-profit corporation pursuant to
Section 501(c)(3) of the Internal Revenue Code so that the
association can receive donations and donors can obtain a
charitable tax deduction. A law firm in Tulsa, Oklahoma is
hired to prepare and file the articles of incorporation with
the Oklahoma Secretary of State and the paperwork is
filed on February 21, 2006. The articles list Brown, Wallin
and Mayer as the incorporators, with Brown listed as the
registered agent at his home address in Broken Arrow,
Oklahoma. Bylaws are also adopted and the initial Board
of Directors is formed with Brown as President/Executive
Director, Wallin as Treasurer and Mayer as Secretary.
Brown Testimony Deposition 11:1-14:9, Exs. 1, 2 and 3.

March 2006 Bill Richart joins the PGR and shortly thereafter becomes
a ride captain for Missouri as well as a member of the
PGR Forum Moderator Team which has responsibility for
reviewing forum posts, enforcing forum rules, and remov-
ing inflammatory comments. Richart Testimony Deposi-
tion 8:22-10:4.

March 2006 Due to increased traffic to the online PGR Store overload-
ing the server, the PATRIOTGUARD.ORG website suffers
from frequent crashes. Wallin, Brown and Mayer, the ex-
isting Board members at the time, agree to have Wallin
obtain a separate server to handle the PGR store traffic.
The server is obtained and a new domain name is regis-
tered, PATRIOTGUARDSTORE.ORG. Mayer Testimony
Deposition 32:8-33:13. However, the link visible to public
Opposition No. 91181448

- 24 -
users on the PATRIOTGUARD.ORG website remains the
same. Mayer Testimony Deposition 33:14-34:15.

April 2006 A statement is added to the PATRIORTGUARD.ORG
website indicating that one can access the store either by
clicking on the link in the navigation bar or by typing the
URL, www.patriotguardstore.org, in their web browser
which redirects the user to the new server location for the
store. Otherwise, there is no visible change in appearance
to the user from the previous PGR Store when the PGR
Store link is clicked. Mayer Testimony Deposition 33:14-
34:15, Ex. 28; Applicant’s Notice of Reliance No. 4 (Re-
quest for Admission No. 76).

July 2006 Mayer resigns his position with the PGR citing person-
al/family reasons. Bill Lines is appointed to replace Mayer
on the Board of Directors and as Secretary. Mayer Testi-
mony Deposition, 67:7-68:6; Applicant’s Notice of Reliance
No. 32.

Oct. 2006 Some individual members of the PGR learn for the first
time that PGR Store is being operated by Brown as a for-
profit business entity separate from the non-profit PGR,
Inc. and question the legal and ethical appropriateness of
this arrangement. Awtry Testimony Deposition 32:13-19.
On October 6, Brown posts on the PGR forum pages a re-
sponse indicating that because the PGR is a Section
501(c)(3) non-profit entity, it is highly regulated as to what
money can and cannot be raised and how it is spent. He
denies that the PGR Store has spent, borrowed or stolen
any money from PGR, Inc.. He also states that the PGR
Store has invested over $67,000 in PGR non-profit corpo-
ration and that it is the largest source of income for PGR,
Inc.. Applicant’s Notice of Reliance No. 33.

Early Nov. 2006 In response to questions raised by some PGR members
about the source of funding for the PGR, Inc., the PGR
Board of Directors and the Head Shed start to question
Brown about the income generated by the PGR Store and
how much money the association actually has. The Head
Shed asks Brown to produce financial records relating to
the sale of merchandise through the PGR Store which
Brown refuses to produce. At this time, some members of
the national leadership of the PGR learn for the first time
Opposition No. 91181448

- 25 -
that Brown is operating the PGR Store as a separate busi-
ness entity from PGR, Inc. and that funds generated from
the sale of merchandise through the PGR Store link on the
PATRIOTGUARD.ORG website are actually going to
Brown’s personal bank account. Perry Testimony Deposi-
tion 33:7-38:1; Awtry Testimony Deposition 36:22-37:13,
255:14-260:25; Applicant’s Notice of Reliance No. 32 (Dec-
laration of Bill Lines).

Nov. 5, 2006 A quorum of the Board of Directors of PGR, Inc. (Wallin
and Lines), along with members of the “Head Shed” hold a
telephonic meeting without Brown’s participation, and
vote to remove Brown from his position of Executive Direc-
tor of PGR, Inc. In the same meeting, they vote to expand
the voting Board of Directors to five members and add
Perry, Awtry and Ed Mueller to the Board. Lines becomes
the new Executive Director, Wallin remains as Treasurer,
Awtry becomes the Secretary and Mueller and Perry are
“at large” members. Perry Testimony Deposition 44:12-
46:17; Awtry Testimony Deposition 39:14-40:18. After the
meeting, Brown is advised of the Board’s vote and is given
an opportunity to announce to the membership at large
that he is voluntarily resigning. Brown agrees to resign as
Executive Director. Brown Testimony Deposition 30:3-
31:14; Perry Testimony Deposition 44:7-46:14; Awtry Tes-
timony Deposition 43:25-48:1; Applicant’s Notice of Reli-
ance No. 32.

Nov. 7, 2006 Brown posts his resignation under “Final Jeff’s Corner” on
the PGR website and states that he will close the PGR
Store once his current inventory is depleted. Richart Tes-
timony Deposition Ex. 6; Applicant’s Notice of Reliance No.
32 (Lines Declaration, Ex. A).

Nov. 7-8, 2006 The new Board continues to ask Brown for financial rec-
ords and discussions are held about the status and location
of the corporate record book, the Section 501(c)(3) paper-
work and any trademark applications or registrations for
the PGR mark. The Board discovers that contrary to as-
sertions made by Brown, no trademark application has ev-
er been filed and the tax-exempt status paperwork for the
Internal Revenue Service has never been completed or
filed. Perry Testimony Deposition 47:15-49: 9; Applicant’s
Notice of Reliance No. 32. It is during these conversations
Opposition No. 91181448

- 26 -
that Brown expressly tells the Board of Directors and the
Head Shed as a whole, for the first time, that he considers
himself the owner of the Patriot Guard Riders logo as well
as the word mark and that he has simply licensed to the
organization the right to use the mark for non-commercial
purposes only.14 Perry Testimony Deposition 51:8-52:4,
56:10-16; Applicant’s Notice of Reliance No. 32.

Nov. 9, 2006 Wallin, with authorization from the new Board members,
files the federal trademark application which is the subject
of this opposition proceeding for the logo originally de-
signed by Brown for services identified as “organizing and
conducting support groups in the field of combat veterans
and their families.” Wallin Testimony Deposition 59:10-
60:7; Perry Testimony Deposition 49:10-50:12; Awtry Tes-
timony Deposition 279:9-19; Applicant’s Notice of Reliance
No. 32. About nine hours later on that same day Brown,
using the title “Executive Director,” files a federal trade-
mark application as an individual for the word mark
PATRIOT GUARD RIDER in standard characters for as-
sociation services as well as the collateral items sold in the
PGR online store such as clothing patches, articles of
clothing, ornamental pins, flags, banners and metal li-
cense plates. Brown’s application lists the PGR’s pro bono
attorney John Jacobs as his attorney of record. Brown Tes-
timony Deposition Ex. 7; Applicant’s Notice of Reliance No.
42.

Nov. 17, 2006 Jacobs provides a copyright form to Brown with instruc-
tions on how to file a copyright application for the PGR’s
applied-for mark. Applicant’s Notice of Reliance No. 27.
Subsequently, on January 12, 2007 the U.S. Copyright Of-
fice rejects Brown’s copyright application saying that it
“lacked the authorship necessary to qualify for copyright
registration.” Applicant’s Notice of Reliance Nos. 28 and
29.

14 There is contradictory testimony in the record indicating that some of the members
of the key leadership of the PGR, namely, that Wallin and Awtry, may have been told
prior to this time by Brown that he considers himself the owner of the PGR mark.
Awtry Testimony Deposition 275:25-279:5; Wallin Testimony Deposition 64:10-66:17.
Nonetheless, it is clear that Brown did not inform other members of the Head Shed
or the membership at large of his belief that he owned the logo.
Opposition

Nov.
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Opposition No. 91181448

- 28 -
by the PGR was unauthorized by him. More specifically, he argues that he
was personally “outraged” by the protests of the Westboro Baptist Church at
the funerals of deceased U.S. military personnel and that as a result, in No-
vember 2005, he founded the Patriot Guard Riders to protect the family and
friends of fallen soldiers from such protests at funerals. Opposer’s Brief, p. 5.
Opposer contends that he alone created the triangular folded logo that is the
subject of the PGR’s application; that he designed various goods displaying
the mark and used his own personal funds to pay for their production and
shipping costs during the inception phase of the organization; and that he and
his wife operated the online for-profit PGR Store selling such goods in order to
recover his initial start-up costs. Brown further argues that following incorpo-
ration of the PGR as a non-profit entity in February 2006, he retained exclu-
sive control of the PGR logo with the intent that the PGR would continue to
have permission to use the mark for non-commercial purposes (i.e., the asso-
ciation services) while he as an individual would retain and continue to use
the mark for commercial purposes (i.e. use on the sale of goods from the PGR
online store). Brown maintains that both parties acted consistent with this
arrangement until he resigned from the Board of Directors. In Brown’s view,
the record clearly shows that applicant is not the owner of the applied-for
PGR logo but instead is a licensee; that the PGR never had a license to use the
logo “for anything beyond the association services” (Opposer’s Brief, p. 22-3);
and that he never gave the PGR permission to file the involved application.
Opposition No. 91181448

- 29 -
Section 1(a)(1) of the Trademark Act of 1946, 15 U.S.C. § 1051(a)(1), pro-
vides as follows:
The owner of a trademark used in commerce may request regis-
tration of its trademark on the principal register by paying the
prescribed fee and filing in the Patent and Trademark Office an
application and a verified statement …

Accordingly, only the owner of the mark may file an application. Great
Seats Ltd. v. Great Seats Inc., 84 USPQ2d 1235, 1239 (TTAB 2007). “It is fun-
damental that ownership of a mark is acquired by use, not by registration.”
Holiday Inn v. Holiday Inns, Inc., 534 F.2d 312, 189 USPQ 630, 635 n.6
(CCPA 1976). See also Huang v. Tzu Wei Chen Food, 849 F.2d 1458, 7
USPQ2d 1335, 1336 (Fed. Cir. 1988); American Forests v. Sanders, 54
USPQ2d 1860, 1864 (TTAB 1999) (intent-to-use application filed by individual
void where the actual entity possessing the bona fide intention to use the
mark was a partnership comprised of the individual and her husband).
In cases such as the one before us where an individual and corporation
have either a prior or current relationship, the question of whether the indi-
vidual or the corporate entity is, in fact, the owner of the mark “must be de-
termined on a case by case basis dependent on the particular facts adduced in
each case.” In re Briggs, 229 USPQ 76, 77 (TTAB 1986), citing Monorail Car
Wash Inc. v. McCoy, 178 USPQ 434, 437-8 (TTAB 1973). It is undisputed that
no written agreement existed between Brown and the PGR regarding owner-
ship or use of the involved mark. We must therefore consider the testimony
presented by the witnesses as well as any written communications or other
Opposition No. 91181448

- 30 -
evidence that took place contemporaneously with the creation and use of the
applied-for mark and subsequent thereto that either corroborate or contradict
such testimony.
We find that the record evidence establishes that the PGR was indeed
the owner of its applied-for mark for the association services identified therein
at the time it filed its application. Brown’s efforts, both prior and subsequent
to the formal incorporation of the PGR as a non-profit entity, were done on
behalf of the PGR and inured to the PGR’s benefit. That being said, we
acknowledge that the record shows Brown personally conceived of and de-
signed applicant’s applied-for logo and used personal funds to sell and distrib-
ute collateral goods bearing the logo to cover the start-up costs for the PGR.
See e.g., Brown Testimony Deposition 48:22-49:22, Exs. 10-11; Awtry Testi-
mony Deposition Exs. 1 and 8. Nonetheless, Brown did so as part of his role as
co-founder of the PGR organization. As he testified, he created and designed
the PGR logo for the organization, not himself, to use:
Q: Have you ever seen that image of that – that image of the folded
flag and the Patriot Guard Rider before?
A: Before when?
Q: Before today.
A: Yes.
Q: Okay. Who created that image?
A: I did.
Opposition No. 91181448

- 31 -
Q: Why did you create that image?
A: When I came up with the idea for the Patriot Guard Riders – I mean
I’ve done logos and that kind of stuff for years, and I designed a logo. It
just seemed like the next step. So that’s the logo I came up with.
…
Q: Okay. What were you planning to do with the logo?
A: I had received emails from members asking for a vest patch and so I
wanted the logo – I designed the logo to represent the Patriot Guard
Riders, to unify us, to identify us as members….
Brown Testimony Deposition 46:1-14; 47:7-12. This is further confirmed by
the testimony of Wallin who acknowledged that Brown actually created the
logo but did so for use by the PGR. Wallin Testimony Deposition 63:5-15.
In addition, Brown admits he was not the originator of the idea of using
motorcycle escorts for funeral processions of fallen soldiers to shield mourners
from WBC protesters. Brown Testimony Deposition 143:18-146:3. As the rec-
ord shows, the term “Patriot Guard” was first used on October 27, 2005 by a
group of American Legion motorcycle riders in Kansas who attended funerals
in Kansas to counteract protestors from the Westboro Baptist Church, and
Brown admits that he first heard this term at a funeral prior to coining the
mark PATRIOT GUARD RIDERS for use by the PGR association. Wallin Tes-
timony Deposition 13:15-24; Brown Discovery Deposition 88:9-90:4. The rec-
ord is devoid of any evidence that Brown, as an individual, ever used the word
Opposition No. 91181448

- 32 -
mark PATRIOT GUARD RIDERS in connection with association services. To
the contrary, the record shows that Wallin and Brown were co-founders of the
association with the help of numerous individuals, and that the PGR was nev-
er operated by Brown in his capacity as an individual. Applicant’s Notice of
Reliance No. 3, ¶ 13.
The email communications that took place between Brown and Wallin
in November 2005 during the initial planning stages of the organization cor-
roborate the determination that Brown’s activities prior to the formal incorpo-
ration of the PGR were for the group’s benefit. See, for example, the following
excerpted emails below (emphasis added):
Email dated November 10, 2005 from Wallin to Brown regarding
a funeral for Tyler MacKenzie in Greeley, CO on November 11.
Post script at the bottom of the email states: “The Patriot Guard
is made up of all Patriotic Riders, including clubs, associations
and individuals. Our mission is Honor the Soldier/support the
family and shield the family from the idiots.” Wallin Testimony
Deposition, Ex. 12.

Email dated November 10, 2005 from Brown to several others
including Wallin “Re PGR Logo.” Brown states: “Several people
have asked about a Patriot Guard Riders patches, decals, arm
bands, flags, etc. I like the idea and believe it will enhance our
presence at any service without taking anything from the other
organizations you may belong to. I have designed a logo that I
think works very well for us. I am working with a company to
produce the stuff and will send out more information as it be-
comes available. Also, Jason Wallin from Colorado has gracious-
ly donated web hosting for us and I hope to have a website up
soon. The domain name reserved is patriotguard.org.” Wallin re-
sponds by indicating that a placeholder in the form of the logo
designed by Brown has been put on the Internet under the do-
main name. Brown Testimony Deposition, Ex. 9; Wallin Testi-
mony Deposition, 26:5-8; Ex. 13.

Opposition No. 91181448

- 33 -
November 10 – Email from Brown to several others to volunteer
to become state ride captains to organize mission rides in their
states including such activities as “contacting local law enforce-
ment to make them aware of our presence, contacting the family
to determine their wishes for our presence and participation.”
The email lists ride captains already set for Kansas, Colorado
and Oklahoma. Included are responses from David Slocum
(Preacher) volunteering to become the ride captain in North
Carolina and Keith Callaway volunteering to handle Western
Iowa. Applicant’s Notice of Reliance Nos. 16 and 17.

November 10 – Email from Craig Hansen of the Kansas Ameri-
can Legion Patriot Guard to Jeff Brown in response to an email
from Brown wherein Brown states that “I’m in the process of
setting up a Patriot Guard Rider’s website to gather and dissem-
inate information quickly. I’ll keep you posted as soon as it’s up
and running.” Brown also asks Hansen to be a ride captain in
Kansas. Hansen replies that he and another man, Terry Houck,
will serve as co-state captains in Kansas and that they will for-
ward information on how to contact law enforcement regarding
funeral processions. Applicant’s Notice of Reliance No. 15.

November 11 – Email thread from Brown to several people in-
cluding Wallin, Bonnie Cutler and a person by the name of
“Preacher” (David Slocum). Brown circulates a draft of a mission
statement for the PGR for comment which states in relevant
part: “The Patriot Guard Riders” is an amalgamation of riders
from across the nation. We have one thing in common besides
motorcycles. We have an unwavering respect for those who risk
their very lives for America’s freedom and security. If you share
this respect, please join us. We don’t care what you ride, what
your political views are, or whether you are a hawk or a dove. It
is not a requirement that you be a veteran. It doesn’t matter
where you’re from or what your income is. You don’t even have
to ride. The only prerequisite is Respect. Our mission is to at-
tend the funeral services of fallen American military heroes.
Each mission we undertake has two basic objectives: 1. Show
our sincere respect for our fallen hero, his family and his com-
munity; 2. Protect the mourning family and friends from inter-
ruptions created by any protestor or group of protestors. We ac-
complish the latter through strictly legal and non-violent
means.” Wallin Testimony Deposition, Ex. 19.

Opposition No. 91181448

- 34 -
Email from Brown to various others including Bonnie Cutler-
Perry regarding the PGR mission statement announcing that it
is now “up and running on our website.” Wallin Testimony Dep-
osition, Ex. 21.

The above emails, showing consistent usage of the terms “we,” “us” and “our,”
make clear that Brown was in the process of recruiting volunteers to assist in
establishing the PGR as an association, not as a sole proprietorship or indi-
vidual, and that Brown designed the logo as part of his role as a co-founder
and for use by the PGR as an organization.
Brown testified as to his belief that he owned applicant’s applied-for
mark and that he gave permission to the PGR to use the mark for “noncom-
mercial purposes” on the PGR website but not for the collateral goods (e.g. the
patches, pins) during this pre-incorporation phase. Brown Testimony Deposi-
tion 62:2-63:14. Nonetheless, Brown admits that he has no other evidence, ei-
ther oral or written, to support his assertion that he as an individual owned
the logo and orally licensed its use to the PGR. Applicant’s Notice of Reliance
No. 1 77:3-8. Although Brown testified that the agreement between himself
and the PGR was expressed in writing and through conversations, during his
testimony he was unable recount any specific conversations regarding owner-
ship and licensing of the logo with any Board members or members of the
Head Shed. Brown Testimony Deposition 63:18-64:23; Applicant’s Notice of
Reliance No. 1 72:4-6. Brown did testify that he and Wallin discussed in No-
vember 2005 the fact that the use by the association was for non-commercial
use only; however, he has no documentary evidence such as emails to support
Opposition No. 91181448

- 35 -
this assertion nor recollection of any specific phone conversations to that ef-
fect. Brown Testimony Deposition 206:2-208:23. Indeed, Brown admitted that
no written licensing agreement ever existed between himself and the PGR re-
garding the ownership and/or permission to use the logo other than his state-
ment to Wallin to “throw this up on the website” during the initial launch as a
placeholder. Id. at 206-208; Applicant’s Notice of Reliance No. 3 ¶¶ 12, 18,
116. He relies primarily on this email transmission of the logo to Wallin as ev-
idence that he granted the PGR an oral license to use the mark. Applicant’s
Notice of Reliance No. 1, Brown Discovery Deposition 73:3-74:21. Wallin how-
ever testified that when he registered the domain name
PATRIOTGUARD.ORG and offered to host the PGR website for free, it was
his understanding that he was doing so for the benefit of organization and not
Brown personally. Wallin Testimony Deposition 14:3-17:1; Ex. 11.
Once the PGR website was launched, it provided no indication whatso-
ever that Brown, not the PGR, was the owner of the logo or that the PGR’s use
of the logo was subject to a license. Richart Testimony Deposition 16:4-31:24,
Exs. 4 and 5. To the contrary, the PGR website expressly informed users that
the funds from the PGR Store supported the PGR, with no notification that
Brown as an individual owned the PGR logo or personally derived any income
from the sale of the collateral items after recouping his out-of-pocket start-up
expenditures. See e.g., Mayer Testimony Deposition Ex. 25 (December 28,
2006 printout of the home page from PATRIOTGUARD.ORG which contains
Opposition No. 91181448

- 36 -
the PGR mission statement in the center; a navigation section is at the upper
left and includes a direct link to the “PGR Store.” Near the bottom of the page
under the heading “How to get the most from the Patriot Guard Riders web-
site” is the statement “If you’d like to support the PGR and our missions fur-
ther, click on the Paid Ads frequently and purchase items you want from the
PGR Store.”). Statements to this effect were consistently made on the website
even after updates. See Richart Testimony Deposition 16:4-18:1, Exs. 4 and 5
(September 2006 “Frequently Asked Questions” of the PATRIOTGUARD.ORG
website updated to state “The revenue generated from the sale of PGR prod-
ucts enables us to operate this site and continue to grow the organization
without any dues, donations or fees.”).
The technical set up of the PGR website also conveyed the impression
to the public that the PGR was and continues to be the owner of its applied-for
logo. On the website, the user was told that one could access the PGR Store
either by clicking on the link in the navigation bar or by typing the URL,
www.patriotguardstore.org in their web browser, redirecting the user to the
new server location for the store. No notification was provided to the user that
he/she was being transferred to another entity not owned by the PGR. Mayer
Testimony Deposition 33:14-34:15, Ex. 28; Applicant’s Notice of Reliance No.
4.
In addition, the invoices Brown used for processing the sale of items
through the PGR online store stated that customers were to make checks or
Opposition No. 91181448

- 37 -
money orders payable to “Patriot Guard Riders” to a post office box in Broken
Arrow, OK and were signed “Sincerely PGR.” See e.g., Applicant’s Notice of
Reliance, No. 1, Brown Discovery Deposition Ex. 9 (email invoice dated Janu-
ary 7, 2006 from “PGR” to Richard Wilbur “Indy Harley” who purchased items
from the PGR Store); Ex. 10 (invoice dated March 18, 2006 to Bill Richart).
The invoices bore no indication whatsoever that Brown was operating the
online PGR Store in his capacity as an individual (or in partnership with his
wife) for his own pecuniary gain. Although subsequent invoices indicated that
checks should be made payable to “Bonnie Brown,” there was no explanation
that she was unaffiliated with the PGR association or that she was a part
owner of the online PGR store or that she and her husband operated the store
for profit. It was only after Brown’s forced resignation that he changed both
the name of the online store to “Twister’s PGR Store” and the appearance of
invoices to indicate that payment should be made to “Twister’s PGR Store.”
Applicant’s Notice of Reliance Nos. 24 and 26.
As further corroborating evidence, other members of the PGR testified
that they believed that the revenue generated by the PGR Store went solely to
the PGR association. See e.g., Opposer’s Notice of Reliance No. 3, Perry Dis-
covery Deposition Ex. 2 (email exchange dated January 24, 2008 between Per-
ry and Brown indicating that she thought 100 percent of store proceeds were
going to PGR); Mayer Testimony Deposition 26:21-31:21; 40:12-42:5 70:3-22,
Exs. 25-32. This evidence considered as a whole lends further support to the
Opposition No. 91181448

- 38 -
finding that applicant was the owner of the mark at the time it filed its appli-
cation.15 West Florida Seafood, Inc. v. Jet Restaurants, Inc., 31 F.3d 1122, 31
USPQ2d 1660, 1663 (Fed. Cir. 1994) (one should look at evidence as a whole,
as if each piece of evidence were part of a puzzle which, when fitted together,
establishes prior use).
Brown further argues that following incorporation of the PGR as a non-
profit entity in February 2006, he retained exclusive ownership and control of
the logo with the intent that the PGR would continue to have permission to
use the mark for non-commercial purposes (i.e. the association services) while
he as an individual would retain and continue to use the mark for commercial
purposes (i.e. use on the sale of goods from the PGR online store). However,
again Brown is unable to point to any documentary evidence or testimony to
corroborate this theory. Instead, the record evidence points to the contrary.
Upon the formation of the PGR as a non-profit entity, Brown signed the incor-
poration papers for the PGR which state, in part, “[t]his corporation is not for
profit, and as such the corporation does not afford pecuniary gain, incidentally
or otherwise, to its members (emphasis added). Brown Testimony Deposition,
Ex. 1 (PGR 000686); Applicant’s Notice of Reliance No. 3, ¶ 15.

15 That being said, we do acknowledge that the record includes references and testi-
mony from some PGR members who either believed that Brown owned the PGR logo
or had permission to use the PGR for the online store and collateral goods. Brown
Testimony Deposition, Ex. 16; Awtry Testimony Deposition Ex. 23. Such discussions
however must be placed in the context that after Brown had threatened the Board
with legal action, he and the PGR attempted, albeit unsuccessfully, to negotiate a
formal written licensing arrangement.
Opposition No. 91181448

- 39 -
To the extent that authorization to use the mark was granted from
Brown to the PGR, as Brown contends, such authorization must have been the
result of an oral or implied license. Villanova University v. Villanova Educa-
tional Foundation Inc., 123 F. Supp.2d 293, 58 USPQ2d 1207, 1219 (E.D. Pa.
2000) (“It is irrelevant whether the parties thought of the arrangement at the
time in terms of an implied license. The test for whether or not an implied li-
cense existed is based solely on the objective conduct of the parties.”). The evi-
dence of record, however, fails to support the finding of such an arrangement.
Brown testified that he has no recollection of informing either Wallin or May-
er, the other two co-incorporators, that he owned the mark and was granting
the PGR a license to use the mark only for non-commercial purposes at the
time of incorporation. Applicant’s Notice of Reliance No. 1 78:14-17; 82:4-7.
Brown Testimony Deposition 210:8-211:6. Brown also did not recall telling the
law firm that prepared the PGR articles of incorporation and bylaws that he
owned the PGR logo and was licensing the mark to the now incorporated asso-
ciation. Brown Testimony Deposition 210:25-211:6. Indeed, when Brown was
forced to resign, he unequivocally stated he would terminate operation of the
PGR Store once the inventory was depleted, and made no mention of his belief
that he, not applicant, was the rightful owner of the logo. Richart Testimony
Deposition Ex. 6; Applicant’s Notice of Reliance No. 32, Ex. A. Nonetheless,
Brown continued to operate the store under the name “Twister’s PGR Store”
in direct contravention of his original promise. This is consistent with the tes-
Opposition No. 91181448

- 40 -
timony presented by PGR members attesting to their understanding that the
PGR, not Brown, was and always has been, the owner of applicant’s applied
for mark. See e.g., Perry Testimony Deposition 56:10-18 (Perry states that pri-
or to Brown’s resignation from the Board, she had no personal knowledge that
the PGR mark belonged to Brown individually as opposed to the organiza-
tion). It was not until the other PGR members became aware that Brown was
personally profiting from the operation of the online PGR Store that Brown
publicly stated on the PGR web site that the PGR Store was a “for-profit” en-
terprise and that he, in his “sole discretion” determined how revenues gener-
ated by the store were distributed to the PGR for provision of the non-
commercial or association services. Applicant’s Notice of Reliance No. 32, Aw-
try Testimonial Deposition, Ex. 8. Indeed, Richart testified that he was sur-
prised that Brown filed his trademark application because he was under the
impression that the PGR owned the trademark for the entire time. Richart
Testimony Deposition 45:12-47:7.
Brown also testified that he policed third-party use of applicant’s mark
and that such control constitutes evidence that he, as an individual, was and
continues to be the owner and licensor of the mark. See e.g., Brown Testimony
Deposition 84:7-23, Ex. 17. A close examination of the record reveals however
that Brown’s statements made contemporaneously with the exercise of such
control over third-party use contradicts his assertion, showing instead that
Brown communicated to others that applicant was the owner of the logo and
Opposition No. 91181448

- 41 -
that Brown exercised control on behalf of the organization as part of his role
as Director. By way of illustration:
Email response from Jeff Brown to the PGR Board and a Con-
necticut state PGR captain dated February 24, 2006: The PGR
Captain was announcing the development of a Connecticut PGR
website for a Connecticut chapter of the PGR. Brown’s response
states: “I really hate to do this, but the Patriot Guard Riders
cannot allow individual state PGR sites for various legal and
administrative reasons. Legally, it opens the door for unauthor-
ized use of the name and logo and sets a precedent that, should
it ever be contested, weakens our position against unauthorized
use.” It is signed by “Jeff Brown ‘Twister’ Executive Director,”
Patriot Guard Riders. Mayer Testimony Deposition, Ex. 33.

Email from Brown to John Jacobs re: “PGR Trademark” dated
April 24, 2006: Brown asks for Jacobs’ comments on a proposed
statement he wants to put on the PGR website regarding use of
the name and logo by members. He states: “Several members
have asked to make different items incorporating the Patriot
Guard Riders name and logo. Unfortunately we have had to ask
that this not be done and everyone needs to know why. The
name, Patriot Guard Riders, our logo, as well as the phrase Rid-
ing With Respect, are all trademarked to protect the identity of
the organization. Attorneys have cautioned us that if we allow
it’s unlicensed use, should we ever have to go to court to enforce
the trademark protection, our case could be severely hampered
by the fact that a precedent has been set for its unlicensed use.
Folks, we’re not trying to be jerks about it, we’re just trying to
make sure our organization is fully protected from those who
might want to discredit us in the future.” Brown Testimony
Deposition, Ex. 12.

PGR forum posting from Jeff Brown dated June 22, 2006 stating
“The PGR name, logo, Riding With Respect and Scooter Sissy
are all trademarks. Please do not use them without permission.
Additionally, please don’t think I’m just being a jerk when I
have to say no. Just so you know, in addition to furthering the
organization through a uniform image, there are some very
sound legal reasons why permission may not be granted. Our at-
torneys have advised us that if we ever have to go to court to en-
force our trademarks, and the defense attorney can cite other in-
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- 42 -
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Opposition No. 91181448

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net web sites, which create a public awareness of the designation as a trade-
mark 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). Thus, in order for Brown to prevail
on his Section 2(d) claim, he must prove by a preponderance of the evidence
that he has a proprietary interest in his pleaded PATRIOT GUARD RIDERS
word mark for association services and/or collateral goods and that he ob-
tained that interest prior to the actual or constructive first use by applicant.
Herbko International Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d
1375, 1378 (Fed. Cir. 2002); Otto Roth & Co., Inc. v. Universal Corp., 640 F.2d
1317, 209 USPQ 40, 43 (CCPA 1981).16 Based on the record before us, the first
use of the mark PATRIOT GUARD RIDERS by the PGR association took
place on November 11, 2005 when the PGR sent members to attend funerals
in Greely, Colorado and Hudson, Wisconsin displaying on their motorcycle
windshields paper copies printed by Wallin of the logo Brown had created.

16 In theory, opposer is entitled to rely on its application filing date as a constructive
use date for purposes of priority contingent upon issuance of a registration. See Spir-
its International B.V. v. S. S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri
Birligi, 99 USPQ2d 1545, 1549 (TTAB 2011). However, in this particular case, be-
cause opposer filed his pleaded application on the same day as applicant, he cannot
rely on the constructive use date to establish priority. Instead, opposer must rely on
evidence of actual or analogous use to establish priority.
Opposition No. 91181448

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Brown essentially puts forth the same arguments noted above with re-
gard to his ownership claim asserted against applicant, that he, as an indi-
vidual, first conceived of and used in commerce the PATRIOT GUARD RIDER
word mark in connection with association services on November 9, 2005, prior
to the formal organization of the PGR and that he later licensed use of the
mark for non-commercial purposes to the PGR for association services while
simultaneously using the mark on collateral goods.
As established above, opposer does not have any ownership or proprie-
tary rights in the mark PATRIOT GUARD RIDERS with respect to associa-
tion services. As a corollary to this determination, any use of the mark on the
collateral merchandise was a natural outgrowth of the association’s services
and would be likely to be viewed by the relevant consumers (the PGR mem-
bers) as a source indicator for such services. Cf. NASDAQ Stock Market Inc. v.
Antartica S.r.l., 69 USPQ2d 1718 (TTAB 2003).
We find that Brown cannot establish a proprietary interest in the word
mark PATRIOT GUARD RIDERS for collateral merchandise prior to any date
of actual use by the PGR. The use of the mark PATRIOT GUARD RIDERS by
the PGR association necessarily precedes the sale of any of the collateral
goods, which were associated with and sold on behalf of the PGR association.
Indeed, Brown acknowledges that the PGR organization existed prior to the
formation of the online store and that there would be no reason to have a store
if there were no existing PGR organization. Brown Testimony Deposition
Opposition No. 91181448

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135:16-137:20. As the record shows, it was not until the association came into
existence that members became interested in collateral items such as patches
to identify themselves as “Patriot Guard Members” at funerals attended by
WBC protestors (Wallin Testimony Deposition: 23:4-18, Ex. 13) which in turn
prompted Brown to place orders with outside companies to produce such
items. The record also shows, as discussed in detail above, that the collateral
merchandise was created and sold to PGR association members to fund the
association’s missions, and was advertised as such. See e.g., Mayer Testimony
Deposition Ex. 25 (December 28, 2006 printout of the home page from
PATRIOTGUARD.ORG which contains the statement “If you’d like to support
the PGR and our missions further, click on the Paid Ads frequently and pur-
chase items you want from the PGR Store.”); Richart Testimony Deposition
16:4-18:1, Exs. 4 and 5 (September 2006 “Frequently Asked Questions” of the
PATRIOTGUARD.ORG website updated to state “The revenue generated
from the sale of PGR products enables us to operate this site and continue to
grow the organization without any dues, donations or fees.”).
The record further reflects that during Brown’s tenure as Executive Di-
rector, despite his use of personal funds, he was acting in his official capacity
when ordering the collateral merchandise to sell on the online store. Consum-
ers who bought the goods prior to Brown’s departure and the subsequent crea-
tion of “Twister’s Store” were led to believe the goods originated from the
PGR. Hence, Brown cannot prevail on his claim of priority since he cannot
Opposition No. 91181448

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show by a preponderance of the evidence a prior proprietary interest in the
word mark PATRIOT GUARD RIDERS for collateral merchandise.
Decision: The opposition is dismissed.