John P. Avlonv.DeMarcus J. Freemon

Trademark Trial and Appeal Board

May 10, 2013

No. 91194679 (T.T.A.B. May. 10, 2013)

Mailed:
May 10, 2013
UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Avlon

v.

Freemon
_____

Opposition No. 91194679 to application Serial No. 77514179,
filed on July 3, 2008
_____

Carol A. Genis and Robert J. Barz of K&L Gates LLP for John
P. Avlon.

Herbert T. Patty of the Law Office of Herbert T. Patty for
DeMarcus J. Freemon.
______

Before, Zervas, Bergsman and Greenbaum, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

DeMarcus J. Freemon (“applicant”), is the owner of an
application for registration on the Principal Register of
the mark
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Opposition No. 91194679
2

for “publication of electronic magazines, blogs, articles,
and interactive literary forums” in International Class 41.
John P. Avlon (“opposer”), opposes registration of
applicant’s mark alleging, inter alia, that he has used
INDEPENDENT NATION as a mark in commerce since at least as
early as 2004 in (i) advertising and promoting a book
entitled “INDEPENDENT NATION” with the tagline “How
Centrists Can Change American Politics;” (ii) providing a
website featuring information and articles, a blog and an
online forum, all in the field of news, politics, media,
social issues, public affairs and entertainment; (iii)
providing an Internet news portal featuring links to news
stories and articles in the field of current events; and
(iv) providing an on-line community for registered users to
participate in discussions, get feedback from their peers,
form virtual communities and engage in social networking.
Opposer specifically alleges that his mark “has acquired
secondary meaning as used in connection with Opposer’s
Opposition No. 91194679
3
book.” ¶ 6, Notice of Opp. As a ground for opposition,
opposer alleges that use of applicant’s mark would be likely
to cause confusion with opposer’s mark.
Applicant filed an answer which denied the salient
allegations of the original notice of opposition and raised
several affirmative defenses including the doctrines of
estoppel and acquiescence. Because applicant did not pursue
these affirmative defenses in his trial brief, we consider
them to have been waived by applicant.
The Record
In addition to the pleadings, the file of the opposed
application is part of the record without any action by the
parties. Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).
Opposer introduced four notices of reliance submitting the
following into evidence: filings from two of opposer’s
trademark applications for INDEPENDENT NATION filed
subsequent to applicant’s application; various printed
publications; various webpages;1 applicant’s responses to
opposer’s first set of requests for admissions and first set
of interrogatories; and applicant’s response to opposer’s
first set of document requests, which essentially states
that applicant has no responsive documents. In addition,

1 Many of the webpages were also submitted as exhibits to
opposer’s testimonial deposition. The submission of the same
exhibit as a deposition exhibit and as part of a notice of
reliance serves no useful purpose. The Board does not want or
need multiple copies of trial evidence.
Opposition No. 91194679
4
opposer submitted his testimonial deposition with exhibits.
Applicant’s attorney did not attend the deposition.2
Applicant in turn introduced a first notice of reliance
on various webpages and a transcript of an interview of
opposer on “The Daily Show” with Jon Stewart (dated April
13, 2005). Although the transcript does not indicate its
source and merely comprises a collection of pages, we
consider the transcript because opposer has not objected to
its admission into evidence.
Opposer's Standing
“Any person who believes that he would be damaged by
the registration of a mark upon the principal register …
may, file an opposition … stating the grounds therefor.”
Section 13 of the Trademark Act of 1946, 15 U.S.C.
§ 1063(a). Thus, a party has standing to oppose in a Board
proceeding if it can demonstrate a real interest in the
proceeding. Lipton Industries, Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185 (CCPA 1982), citing Universal
Oil Products Co. v. Rexall Drug and Chemical Co., 463 F.2d
1122, 174 USPQ 458 (CCPA 1972).
The evidence reflects that opposer authored a book
whose title encompasses or contains INDEPENDENT NATION and
uses INDEPENDENT NATION in connection with his webpages and

2 Applicant’s attorney did not participate in the
deposition.

Opposition No. 91194679
5
as part of an internet address. This is sufficient to
demonstrate that opposer has a real interest in this
proceeding, and therefore has standing.
Priority
The question of priority is an issue in this case
because opposer has asserted common law rights to the mark
INDEPENDENT NATION and does not own an existing registration
upon which it can rely under Section 2(d). Cf., King Candy
Co., Inc. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108 (CCPA 1974). To establish its priority under
Section 2(d), opposer must prove that, vis-à-vis applicant,
he owns “a mark or trade name previously used in the United
States … and not abandoned ….” Applicant, however, may rely
on the filing date of his application, which is July 3,
2008. See Trademark Act Section 7(c), 15 U.S.C. §1057(c);
and Larami Corp. v. Talk to Me Programs, Inc., 36 USPQ2d
1840 (TTAB 1995).
As discussed below, the record reflects that opposer
used INDEPENDENT NATION prior to applicant in connection
with particular services prior to the filing date of the
involved application.3

3 Because opposer is relying on common-law rights, “the decision
as to priority is made in accordance with the preponderance of
the evidence.” Hydro-Dynamics Inc. v. George Putnam & Co., Inc.,
811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987).

Opposition No. 91194679
6
Publication of blogs
Opposer testified as follows at p. 30 of his
testimonial deposition:
Q. You've provided since 2004 a website featuring
… an on-line journal, namely, a blog featuring
information in the field of news, politics, media,
social issues, public affairs and entertainment ….
You've done that since 2004; is that correct?

A. Yes.

Q. And it's all under the brand "Independent
Nation"; correct?

A. Yes.
In addition, opposer introduced the following webpage4
(which is not dated, and for which there is no testimony
establishing that it appeared prior to the filing date of
applicant’s application), which corroborates opposer’s
testimony that he has used INDEPENDENT NATION in connection
with a blog:

4 Avlon dep., Exhibit 6.
Opposition No. 91194679
7

The word “Posts” appears above the columns of text.
The evidence establishes that opposer first used
INDEPENDENT NATION as a service mark for a blog featuring
information in the field of news, politics, media, social
issues, public affairs and entertainment, in 2004. See
Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La
Michoacana, Inc., 98 USPQ2d 1921 (TTAB 2011), citing
National Bank Book Co. v. Leather Crafted Products, Inc.,
218 USPQ 826 (TTAB 1993) (oral testimony may be sufficient
Opposition No. 91194679
8
to prove the first use of a party's mark when it is based on
personal knowledge, it is clear and convincing, and it has
not be contradicted); Liqwacon Corp. v. Browning-Ferris
Industries, Inc., 203 USPQ 305 (TTAB 1979) (oral testimony
may be sufficient to establish both prior use and continuous
use when the testimony is proffered by a witness with
knowledge of the facts and the testimony is clear,
convincing, consistent, and sufficiently circumstantial to
convince the Board of its probative value); GAF Corp. v.
Anatox Analytical Services, Inc., 192 USPQ 576 (TTAB 1976)
(oral testimony may establish prior use when the testimony
is clear, consistent, convincing, and uncontradicted).
Opposer’s testimony was clear and convincing and it was not
contradicted.
Interactive literary forum
Opposer introduced pages from his independentnation.org
website taken from “Waybackmachine” or Internet archive
(pages dated March 13, 2004, February 8, 2005, January 6,
2006, January 24, 2007, February 11, 2008 and January 2,
2010, located at pp. 79 – 84 of applicant’s testimony
deposition) which each have the following format, in
relevant part:
Opposition No. 91194679
9

With regard to the link “Forum” on the webpage, opposer
testified:
A. "The Forum" was set up to be a chat room
for people discussing not just the book but the
idea of centrists politics and independents in
American politics, not just the past, but the
present and the future.

Q. So that would be an interactive literary
forum, wouldn't it?

A. That was the intention, yes.

In addition, opposer’s webpage at independentnation.org
from April 2, 2004 (accessed via the “Waybackmachine”),
bears the heading “Welcome to Independent Nation: How the
Vital Center is Changing American Politics.”5 Under this
heading is “Forum Name” with the following: “Centrists,
centrism, and the vital center[,] Moderator: admin[,] A
discussion on the vital center in American politics.”

5 Opposer’s third notice of reliance, p. 88.
Opposition No. 91194679
10
Applicant argues that “Opposer’s prior use is limited
to ‘Independent Nation: How Centrists Can Change American
Politics’ (or alternatively ‘Independent Nation: How The
Vital Center Is Changing American Politics’),” and not
“Independent Nation.”6 We disagree. INDEPENDENT NATION, as
used by opposer, creates a separate commercial impression
from the “taglines” “How Centrists Can Change American
Politics” and “How The Vital Center Is Changing American
Politics.” Also, INDEPENDENT NATION is in substantially
larger lettering than any tagline, and the tagline explains
what opposer’s services relate to, thus functioning not as
an indicator of source, but as a descriptive phrase.
In addition, it has not escaped our attention that
applicant’s identification of services specify that his
forum is a “literary” forum. “Literary” is defined as
“pertaining to or of the nature of books and writings,
especially those classed as literature”; and “literature” is
defined as “writings in which expression and form, in
connection with ideas of permanent and universal interest,
are characteristic or essential features, as poetry, novels,

6 Brief at 13.
Opposition No. 91194679
11
history, biography, and essays.”7 Because the opposer’s
forum concerns opposer’s book and “idea[s] of centrists
politics and independents in American politics,”8 which can
be classed as “ideas of permanent and universal interest,”
opposer’s forum constitutes a “literary” forum.
Thus, we find that opposer established that he first
used INDEPENDENT NATION as a service mark for an Internet
forum involving at least news, politics, media and public
affairs on March 13, 2004.
Articles/Internet news portal
Opposer testified as follows at p. 30 of his
testimonial deposition:
Q. You've provided since 2004 a website featuring
information and articles in the field of current
event[s], news and entertainment … [and] providing
an internet news portal featuring links to news
stories and articles in the field of current
events. You've done that since 2004; is that
correct?

A. Yes.

Q. And it's all under the brand "Independent
Nation"; correct?

A. Yes.

7 Definitions from dictionary.com at (i)
http://dictionary.reference.com/browse/literary?s=t&path=/ and
(ii) http://dictionary.reference.com/browse/literature. The
Board may take judicial notice of dictionary definitions,
including online dictionaries which exist in printed format. See
In re CyberFinancial.Net Inc., 65 USPQ2d 1789 (TTAB 2002). See
also University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
8 Opposer’s dep. at 43.
Opposition No. 91194679
12
Further, at p. 58 of his testimonial deposition,
opposer testified that he placed articles on his
independentnation.org website under the heading “Centrism in
the News”; and provided a copy of his webpage, dated April
2, 2004 from “Waybackmachine.”9 The webpage has a list of
approximately ten titles of articles, presumably with links
to the articles themselves.10 (The articles themselves are
not in the record.) At pp. 44 – 45 of his deposition,
opposer testified that “Centrism of the News,” “was a
collection of articles by other individuals about centrism
and independence in American politics. It was sort of a
collection of at least a dozen notable articles, probably
more, and I would refresh those as significant articles were
published by other figures on these same themes and ideas.”
Upon the consideration of the evidence, we find that
opposer established that he used INDEPENDENT NATION as a
service mark for a website featuring information and
articles in the field of news, politics, media, social
issues, public affairs and entertainment as well as an
Internet news portal featuring links to news stories and
articles, prior to the filing date of applicant’s
application.

9 Avlon dep., Exhibit 9, at p. 97.
10 Examples are “The Man Who Should Be President”, The New York
Sun, 3/4/04 and “Waiting for Perot”, The New York Sun, 3/1/04.
Opposition No. 91194679
13
Applicant argues that opposer has not presented any
evidence to corroborate his claim that he used print media
to establish service mark rights. However, applicant has
not explained why the evidence in the record, particularly
the evidence from the “Waybackmachine,” does not suffice to
establish priority.
In summary then, opposer has established use of
INDEPENDENT NATION as a service mark for (i) a website
featuring information and articles regarding current events,
news and entertainment; (ii) a blog in the field of news,
politics, media, social issues, public affairs and
entertainment; (iii) an online forum involving news,
politics, media and public affairs; and (iv) an Internet
news portal featuring links to news stories and articles in
the field of current events, all prior to the filing date of
applicant’s application (hereinafter “Opposer’s Prior
Services”). Opposer therefore has established his priority
for such services.
Likelihood of confusion
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
Opposition No. 91194679
14
(Fed. Cir. 2003). In considering the evidence of record on
these factors, we keep in mind that “[t]he fundamental
inquiry mandated by §2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
[or services] and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976).
We first consider the similarity of the services.
Specifically, we consider Opposer’s Prior Services and the
services recited in applicant’s identification of services.
With the exception of opposer’s internet news portal,
Opposer’s Prior Services are legally identical to
applicant’s publication of electronic blogs, articles, and
interactive literary forums services, which are not limited
to any particular content. Opposer’s internet news portal
(featuring links to news stories and articles in the field
of current events), however, is highly similar to
applicant’s publication of electronic articles, the only
difference being that one contains links to news stories and
the other contains the stories themselves.
Turning now to the channels of trade, opposer maintains
that they are identical, because the services are legally
identical and because all of such services involve the
Internet. We agree. Applicant’s identification of services
does not include trade channel restrictions, and his
Opposition No. 91194679
15
services are in part identical to opposer’s services. It
follows, then, that applicant’s services include the trade
channels of opposer’s services. Moreover, they are presumed
to be offered to the same purchasers, who, for both
applicant’s services and Opposer’s Prior Services, are
members of the general population. See In re Smith and
Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
Next, we consider the similarity of the marks as to
appearance, sound, connotation and commercial impression.
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed.
Cir. 2005). The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of overall commercial impression so that confusion as
to the source of the services offered under the respective
marks is likely to result. San Fernando Electric Mfg. Co.
v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ
1 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1835 (TTAB 1991), aff'd unpublished, No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general
rather than a specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
Opposition No. 91194679
16
106 (TTAB 1975). As noted, the average consumer of
applicant’s services and opposer’s services for which
opposer has priority are ordinary consumers, albeit those
who read and have an interest in literary events.
However, the similarity or dissimilarity of the marks
is determined based on the marks in their entireties. The
analysis cannot be predicated on dissecting the marks into
their various components; that is, the decision must be
based on the entire marks, not just part of the marks. In
re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed.
Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co.,
667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered
piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion”).
[I]n articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing
improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.
Indeed, this type of analysis appears to be
unavoidable.

In re National Data Corp., 224 USPQ at 751.
Applicant’s mark consists of the words INDEPENDENT
NATION under three large feathers. In the case of marks
consisting of words and a design, the words are normally
given greater weight because they would be used by consumers
to request the products. In re Dakin’s Miniatures, Inc., 59
Opposition No. 91194679
17
USPQ2d 1593 (TTAB 1999); In re Appetito Provisions Co., 2
USPQ2d 1553 (TTAB 1987). See also Sweats Fashions Inc. v.
Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793 (Fed.
Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc.,
710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983). We therefore
give the wording in the mark greater weight and find that it
is the dominant portion of the mark.
As for opposer’s INDEPENDENT NATION mark, which we
discussed earlier in this decision, the wording is identical
to the dominant portion of applicant’s mark. The background
elements and the lettering style used by opposer with its
mark do impart any particular meaning to INDEPENDENT NATION.
In view of the foregoing, and because where, as here,
an applicant’s services are in part identical to a prior
user’s services, the degree of similarity necessary to find
likelihood of confusion need not be as great as where there
is a recognizable disparity between the services,11 we find
opposer’s mark to be similar to applicant’s mark in sound,
meaning and commercial impression.
Balancing du Pont factors
We have found that the marks are similar; that with the
exception of opposer’s internet news portal, Opposer’s Prior

11 See Century 21 Real Estate Corp. v. Century Life of America,
970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992); Real Estate One,
Inc. v. Real Estate 100 Enterprises Corp., 212 USPQ 957 (TTAB
1981); ECI Division of E-Systems, Inc. v. Environmental
Communications Inc., 207 USPQ 443 (TTAB 1980).
Opposition No. 91194679
18
Services are legally identical to several of applicant’s
services; and that opposer’s internet news portal (featuring
links to news stories and articles in the field of current
events) is similar to applicant’s publication of electronic
articles. Further, we presume that the trade channels and
purchasers for such services are identical. In view
thereof, we find that there is a likelihood of confusion
between Opposer’s Prior Services and applicant’s publication
of electronic blogs, articles, and interactive literary
forum services.
DECISION: The opposition on the ground of priority and
likelihood of confusion is granted and registration to
applicant is refused.