Jonathan L. Foxv.JMIR Publications Inc.

Trademark Trial and Appeal Board

Apr 29, 2015

No. 92056565 (T.T.A.B. Apr. 29, 2015)

This Opinion is Not a
Precedent of the TTAB

Hearing: March 17, 2015 Mailed: April 29, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Jonathan L. Fox

v.

JMIR Publications Inc.
_____

Cancellation No. 92056565
_____

Luke Brean of Breanlaw LLC,
for Jonathan L. Fox
Erik M. Pelton and Nicholas T. Santucci of Erik M. Pelton and Associates PLLC,
For JMIR Publications Inc.
_____

Before Cataldo, Greenbaum and Goodman,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Jonathan L. Fox (“Petitioner”) seeks to cancel JMIR Publications Inc.’s
(“Respondent”) registration for the mark HEALTHBOOK in standard characters for
Providing an interactive web site that enables users to
enter, access, track, monitor and generate health and
medical information and reports; all of the above
excluding services related to social networking in
International Class 42;
and
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Providing health information; Providing medical
information in International Class 44.1
I. Issues Before the Board
Preliminarily, we must determine what grounds and defenses have been tried by
the parties and are before us in this case.
The ESTTA cover sheet filed with the petition for cancellation indicates that the
pleaded grounds for cancellation are abandonment of the registered mark, and
fraud in the procurement of Respondent’s trademark registration. 1 TTABVUE 1.2
However, the allegations in the petition for cancellation are not entirely clear.
In the petition for cancellation, Petitioner alleges that Respondent “is not
currently using, and has not used for at least the past two years, and possibly
longer,” the HEALTHBOOK mark for the services identified in the registration “due
to a history of the Registrant’s healthbook.com site being ‘down for maintenance’ as
cataloged by random site screenshots provided by the archive.org Wayback Machine
service.” Pet. ¶ 3, 1 TTABVUE 4-5. Petitioner also alleges that Respondent
“fraudulently obtained” the registration because Respondent was not using the
mark on the services identified in the registration on September 27, 2007, the
claimed first date of use of the mark anywhere (Pet. ¶ 4, 1 TTABVUE 5), or on
August 1, 2009, the claimed first date of use of the mark in commerce (Pet. ¶ 5, 1

1 Registration No. 4148551, filed on September 3, 2010, under Section 1(a), 15 U.S.C.
§ 1051(a), claiming in each class September 27, 2007 as the date of first use of the mark and
August 1, 2009 as the date of first use of the mark in commerce. The registration issued on
May 29, 2012.
2 Citations to the record or briefs in this opinion also include citations to the TTABVUE
docket entry number, and the electronic page number where the document or argument
appears. TTABVUE is the Board’s electronic docketing system.
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TTABVUE 5), and that the specimen of use “consists of a screenshot of the admin
panel of a stock installation of a free or commercially available social networking
software script.” Pet. ¶ 5, 1 TTABVUE 5. In addition, Petitioner alleges that the
“Wayback Machine service shows no active consumer facing website on any date
archived between 2009-2010.” Pet. ¶ 5, 1 TTABVUE 5. Petitioner further alleges
that he will be damaged because the Examining Attorney has refused registration
to Petitioner based on likelihood of confusion with Respondent’s registration (Pet.
¶ 2, 1 TTABVUE 4), and Respondent’s registration “stands as a bar to Petitioner’s
ability to federally register and protect his HEALTHBOOK mark.” Pet. ¶ 6, 1
TTABVUE 6.
Respondent filed an answer in which it admitted the allegations in paragraph 2
of the petition “insofar as they are supported by the official records of the U.S.
Patent and Trademark Office (USPTO),” denied all other allegations in the petition
for cancellation, and asserted as “affirmative defenses” that Petitioner lacks
standing because his application is based on fraudulent statements as to use in
commerce, and a fraudulent specimen, and therefore the application is void ab
initio. Ans. ¶¶ 7-20, 4 TTABVUE 3-5.
In the “STATEMENT OF ISSUES” in his brief, Petitioner identifies the
following as issues in this case: (1) Petitioner’s standing; (2) whether Petitioner
committed fraud on the USPTO; (3) nonuse prior to the filing date of Respondent’s
use-based application, rendering the registration void ab initio; and (4)
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abandonment of Respondent’s registration based on at least three consecutive years
of nonuse with intent not to resume such use. Pet. Br. at 2-3, 9 TTABVUE 8-9.
Respondent, for its part, identifies in the “ISSUES PRESENTED” section of its
brief the following issues: (1) abandonment; and (2) whether equitable principles
should bar Petitioner’s claims because false statements in Petitioner’s application
render Petitioner’s application, which is the sole basis for Petitioner’s claims, void
ab initio. Resp. Br. at 1, 10 TTABVUE 5. The “Summary of Argument” section of
Respondent’s brief identifies the issues as (1) whether Respondent’s registration
was void ab initio, or (2) whether it has been abandoned as to all of the registered
services in both classes. Resp. Br. at 9; 10 TTABVUE 13. In addition, Respondent
submitted as Exhibit 4 to Respondent’s Second Notice of Reliance testimony in the
form of a declaration3 pertaining to “Petitioner’s allegations of fraud and non-
use/abandonment, and Respondent’s defenses thereto” (8 TTABVUE 2), and
Respondent devoted several pages in its brief to arguing that its registration is
neither void ab initio nor abandoned. Resp. Br. at 16-24, 10 TTABVUE 12-20.

3 Respondent also submitted the parties’ Stipulation Regarding the Presentation of
Evidence as Exhibit 3 to Respondent’s Second Notice of Reliance. 8 TTABVUE 7. The
Stipulation allows the parties to submit witness testimony and supporting documents by
declaration.
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We observe that while the issue of abandonment4 is insufficiently pleaded, and
the issue of nonuse is unpleaded,5 both parties argued these issues in their briefs
and neither objected thereto. Indeed, Respondent submitted testimony addressing
both issues. Accordingly, we consider the issues of abandonment and nonuse to have
been tried by the implied consent of the parties, such that we can treat the
pleadings to be amended pursuant to Fed. R. Civ. P. 15(b) to include them.
On the other hand, we see no need to detail the deficiencies in Petitioner’s
pleading with respect to its claim of fraud, as Petitioner did not raise the issue in its
brief. Accordingly, we deem the claim of fraud to be waived, and give it no further
consideration. See Krause v. Krause Publications, Inc., 76 USPQ2d 1904, 1906 n.2
(TTAB 2005).
In addition, we note that Respondent’s “affirmative defenses” of fraud and
nonuse pertain to alleged misconduct and other improprieties in connection with
Petitioner’s pleaded application on which Petitioner relies to establish his standing.
The purported misconduct and improprieties stem from Petitioner’s filing of his

4 To set forth a cause of action to cancel a registration which assertedly has been
abandoned, a plaintiff must allege ultimate facts pertaining to the alleged abandonment
that, if proved, would establish a prima facie case. Otto International, Inc. v. Otto Kern
GMBH, 83 USPQ2d 1861, 1863 (TTAB 2007). To provide fair notice to a defendant, such a
pleading must allege at least three consecutive years of non-use, or must set forth facts that
show a period of nonuse less than three years, together with an intent not to resume use.
See Trademark Act § 45, 15 U.S.C. § 1127. Petitioner’s pleading does neither.
5 An applicant seeking registration under Section 1(a) of the Trademark Act need only use
the mark before the application's filing date. See, e.g., Grand Canyon West Ranch, LLC v.
Hualapai Tribe, 78 USPQ2d 1696, 1698 (TTAB 2006). A claim of nonuse of the mark in
commerce requires pleading that the registrant did not use the mark in commerce on all of
the goods or services listed in the application as of the filing date. See Trademark Rule
2.34(a)(1)(i); 37 CFR § 2.34(a)(1)(i). The petition for cancellation is devoid of such
allegations.
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application as a use-based application, rather than an intent-to-use application
under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).6 The “affirmative
defenses” are in the nature of an affirmative defense of unclean hands, and
Respondent has briefed them as such. Pet. Br. at 20-23, 10 TTABVUE 24-27.
However, Respondent has not asserted a viable affirmative defense of unclean
hands because such defense must be related to Petitioner’s claims. See Tony Lama
Company, Inc. v. Anthony Di Stefano, 206 USPQ 176, 179 (TTAB 1980) (“It might be
emphasized, however, that the concept of unclean hands must be related to a
plaintiff's claim, and misconduct unrelated to the claim in which it is asserted as a
defense does not constitute unclean hands.”). In this case, Respondent asserts that
Petitioner’s unclean hands deprive Petitioner of his standing to maintain this
proceeding. This defense therefore is not related to Petitioner’s claims of
Respondent’s abandonment and nonuse of its mark. See also Hornblower & Weeks
Inc. v. Hornblower & Weeks Inc., 60 USPQ2d 1733, 1738 (TTAB 2001) (“Where the
conduct alleged to have resulted in unclean hands relates to a plaintiff's acquisition,
or attempt to acquire, a registration, the unclean hands defense goes only to the
plaintiff's ability to rely on its registration, not to its common law rights.”).
Petitioner’s pleaded application, as well as his alleged misconduct with regard
thereto, is not otherwise before us in this proceeding.
We also note that where the ground for cancellation is abandonment, equitable
defenses such as laches, bad faith and unclean hands are not available in light of

6 We note that Trademark Rule 2.35(b), 37 CFR § 2.35(b) specifically allows an applicant to
amend its filing basis from 1(a) to 1(b) under certain circumstances.
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the overriding public interest in removing abandoned registrations from the
register. See, e.g., TBC Corp. v. Grand Prix Ltd., 12 USPQ2d 1311, 1313 (TTAB
1989). It follows that equitable defenses, including unclean hands, should not be
available against a claim that a registrant's nonuse of the subject mark prior to
registration renders the registration void ab initio, since such claim, like
abandonment, involves an absence of proprietary rights in a mark. No further
consideration, therefore, will be given to Respondent's putative affirmative
defenses.
The parties have filed trial briefs, and the Board held an oral hearing on March
17, 2015, which only Respondent attended.
II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 CFR § 2.122(b), the file of the subject registration.
A. Petitioner’s Evidence
Petitioner submitted under Notice of Reliance Petitioner’s First Set of
Interrogatories and Respondent’s Answers thereto (5 TTABVUE 5), and Petitioner’s
Requests for Admissions (“RFA”) and Respondent’s Responses thereto (5 TTABVUE
15).
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B. Respondent’s Evidence
Respondent submitted Notices of Reliance on official records from the USPTO7 (7
TTABVUE), selected Interrogatories and Petitioner’s Responses thereto (6
TTABVUE), and selected Document Requests and Petitioner’s Responses thereto.
Id. Responses to Document Requests cannot be made of record by notice of reliance.
Trademark Rule 2.120(j)(3)(ii). However, Petitioner treated them as being of record
(see Pet. Br. at 3, 9 TTABVUE 9), and therefore we deem them to have been
stipulated into the record. Additionally, as noted above, the parties stipulated that
the testimony of witnesses may be introduced by affidavit or declaration. See
Trademark Rule 2.123(b), 37 CFR § 2.123(b). In accordance therewith, Respondent
submitted under Notice of Reliance the Declaration (with attached exhibits) of
Gunther Eysenbach, predecessor-in-interest to, and currently the Director and sole
shareholder of, Respondent. 8 TTABVUE 10.
III. Standing
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. See Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 188 (CCPA 1982). To establish standing in a cancellation proceeding,
Petitioner must show both a “real interest” in the proceedings as well as a
“reasonable” basis for its belief of damage. See Ritchie v. Simpson, 170 F.2d 1092, 50
USPQ2d 1023, 1025 (Fed. Cir. 1999). A petitioner may establish standing by

7 Respondent’s Notices of Reliance include USPTO public records regarding the application
underlying Respondent’s registration and Opposition 91201187 filed August 15, 2011 by
Facebook against said application.
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alleging and proving that its pending application was refused registration based on
the respondent’s registration. Lipton, 213 USPQ at 189 (“Thus, to have standing in
this case, it would be sufficient that [plaintiff] prove that it filed an application and
that a rejection was made because of [defendant’s] registration.”); Fiat Group
Automobiles S.p.A. v. ISM Inc., 94 USPQ2d 1111, 1112 (TTAB 2010), citing Life
Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008) (“The
filing of opposer’s application and the Office’s action taken in regard to that
application provides opposer with a basis for pleading its standing ….”).
In this case, Petitioner has alleged that Petitioner’s application was refused
registration based on Respondent’s registration. Pet. ¶ 2. However, Petitioner failed
to make of record his pending application for the mark HEALTHBOOK (Serial No.
85261630), and the Office Action refusing registration under Section 2(d) of the
Trademark Act based on Respondent’s registration for HEALTHBOOK (Reg. No.
4148551). Instead, Petitioner attached as Exhibit A to the petition for cancellation a
three-page printout from the USPTO’s TSDR electronic database for the application
Serial No. 85261630 showing that Petitioner is the named owner of the application
for the HEALTHBOOK mark for the above-identified Class 9 goods, that the
application was filed based on use of the mark in commerce pursuant to Section 1(a)
of the Trademark Act, the claimed date of first use of the mark and first use of the
mark in commerce, and a list of the prosecution history, whose most recent entry
shows that an Office Action issued on June 29, 2012. The TSDR printout is not a
copy of the application file, nor does it establish that registration has been refused
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based on likelihood of confusion with Respondent’s registration. The TSDR printout
merely shows that an Office Action currently is pending; it does not show the nature
of that Office Action.
However, as part of the discussion concerning the background to this proceeding,
Respondent states in its brief that Petitioner filed the pleaded application, and that
“[t]he Examining Attorney refused registration of Petitioner’s Application Serial No.
85/261,630 on June 29, 2012, based on a likelihood of confusion with Respondent’s
HEALTHBOOK registration.” App. Br. p. 9, 10 TTABVUE 13. Respondent
specifically references the TSDR printout as support for these statements.
Based on these acknowledgements by Respondent, Petitioner has established its
standing by concession, and we treat Petitioner’s application Serial No. 85261630 as
being of record. We further find that Petitioner has established that he is the owner
of said application for the mark HEALTHBOOK for “communications software for
connecting health care users/providers,” and that Respondent’s registration for the
identical mark has been cited as a bar to Petitioner’s application under Section 2(d)
of the Trademark Act. This establishes that Petitioner possesses a real interest in
the proceeding and is not a mere intermeddler. See Toufigh v. Persona Parfum Inc.,
95 USPQ2d 1872, 1874 (TTAB 2010) (finding standing in a cancellation proceeding
where petitioner holds “a reasonable belief that there is a likelihood of confusion
between the marks, or that the presence on the register of the respondent’s mark
may hinder the petitioner in using or registering his mark.”).
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Having found that Petitioner has standing to bring this cancellation proceeding,
we now turn to the various grounds for cancellation.
IV. Claims Against Class 44 Services
Although Petitioner filed the petition for cancellation against the services
identified in Class 42 and Class 44, Petitioner did not seek discovery or present
testimony or evidence concerning Respondent’s use of the mark for the Class 44
services. Petitioner points to the specimen Respondent provided with its application
as support for his argument that the specimen does not constitute proper use of the
mark in commerce, and that such use was merely “token” use. Pet. Br. at 7-9
TTABVUE 13-15. However, this is simply argument of counsel, and is not supported
by any evidence. Truswal Systems Corp. v. Hydro-Air Engineering Inc., 813 F.2d
1207, 2 USPQ2d 1034, 1037 (Fed. Cir. 1987) (“Arguments of counsel are not
evidence.”).
Petitioner also argues that Respondent did not provide evidence of use for the
Class 44 services even though it had the opportunity to do so. Pet. Br. at 8-9, 9
TTABVUE 14-15. However, because Respondent’s registration is entitled to the
prima facie presumptions, under Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b), of the validity of the registration, Respondent’s ownership of the
registered mark, and Respondent’s right to exclusive use of the mark in commerce
in connection with the identified services, Petitioner must rebut these
presumptions, and establish his pleaded case (as well as his standing), by a
preponderance of evidence. Cerveceria Centroamericana, S.A. v. Cerveceria India
Cancellation No. 92056565
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Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989). Petitioner’s argument
is thus an improper attempt to shift his burden of proof to Respondent before
Petitioner has made a prima facie case with respect to Respondent’s Class 44
services.
Accordingly, the petition for cancellation is dismissed as to the Class 44 services.
V. Claims Against Class 42 Services
A. Whether Respondent’s Registration is Void ab Initio for Nonuse?
Under Section 1(a) of the Trademark Act, a mark may not be registered unless it
is “used in commerce.” Section 45 of the Trademark Act defines “use in commerce”
as follows:
The term “use in commerce” means the bona fide use of a
mark in the ordinary course of trade … on services when
it is used or displayed in the sale or advertising of services
and the services are rendered in commerce, or the services
are rendered in more than one State or in the United
States and a foreign country and the person rendering the
services is engaged in commerce in connection with the
services.
In addition, “[t]he word ‘commerce’ means all commerce which may lawfully be
regulated by Congress.” Id.
Where it is found that there has been no use of the mark in commerce in
connection with any of the applied-for services prior to the filing date of an
application under Section 1(a) of the Trademark Act, the application is void ab
initio. See ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036, 1045 (TTAB 2012)
(nonuse by respondent at the time of filing the underlying use-based application,
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cancellation granted). In this case, the operative date is September 3, 2010, the
filing date of the application which issued into the subject registration.
As with the Class 44 services discussed above, Petitioner argues that
Respondent did not render any Class 42 services under the HEALTHBOOK mark
as of September 3, 2010, and that any use evidenced by Respondent’s specimens
was merely “token” use. Pet. Br. at 7-9, 9 TTABVUE 13-15. In particular, Petitioner
argues that Respondent’s specimens were either a mere posting of Respondent’s
mark and a listing of the services, or a “functional yet almost purposeless website.”
Pet. Br. at 8, 9 TTABVUE 14.
Petitioner points to the following responses to Petitioner’s RFAs as admissions
that Respondent did not render any services under the HEALTHBOOK mark on or
before the filing date of its use-based application, and therefore the registration is
void ab initio:
RFA No. 7: Admit that within the last three years there
has not been [ ] “an interactive web site that enables
users to enter, access, track, monitor and generate health
and medical information and reports” under the
HEALTHBOOK brand.
Response: Admitted.
RFA No. 8: Admit that within the last three years that
any HEALTHBOOK branded website did not have the
capability to generate reports based on user’s health
information.
Response: Admitted.
RFA No. 9: Admit that within the last three years that
any HEALTHBOOK branded website did not have the
capability to track and monitor user health information.
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Response: Admitted.
Petitioner argues that the “last three years” referenced in the RFAs begins with
the August 21, 2013 date on which it served the RFAs on Respondent such that
Respondent has admitted nonuse of its mark from August 21, 2010 through August
21, 2013. However, Respondent signed the responses to the RFAs on October 9,
2013. The admissions therefore pertain to the three-year period of October 9, 2010
to October 9, 2013. Petitioner’s argument to the contrary is illogical, and would not
account for the six weeks between the August 21, 2013 service date of the RFAs and
the October 9, 2013 response date. While these admissions might support a finding
of abandonment, which we discuss below, they do not establish nonuse on or before
September 3, 2010.
In addition, as was the case with the Class 44 services discussed above,
Petitioner has pointed to nothing in the record to support a finding that
Respondent’s use of its mark on its specimens was merely “token” use. Similarly,
Petitioner’s argument that Respondent had the opportunity to present evidence of
its use of the mark in connection with the Class 42 services is an improper attempt
to shift Petitioner’s burden of proof to Respondent, and will be given no further
consideration.
Petitioner simply has failed to make a prima facie case of nonuse. As a result,
Petitioner’s claim of nonuse fails, and is dismissed with prejudice.
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B. Abandonment
A registered trademark may be cancelled if it has been abandoned. See Section
14(3) of the Trademark Act, 15 U.S.C. § 1064(3). Under Section 45 of the Trademark
Act, a mark is considered abandoned
[w]hen its use has been discontinued with intent not to
resume such use. Intent not to resume may be inferred
from the circumstances. Nonuse for three consecutive
years shall be prima facie evidence of abandonment. “Use”
of a mark means the bona fide use of that mark made in
the ordinary course of trade, and not made merely to
reserve a right in a mark.
Abandonment must be proved by a preponderance of the evidence, and the burden
of persuasion remains on the party seeking cancellation even if a statutory prima
facie case of abandonment has been established. See On-line Careline Inc. v.
America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000);
Cerveceria Centroamericana, 13 USPQ2d at 1309.
Since the registration at issue originated from a use-based application, the
three-year period of nonuse, proof of which would constitute a prima facie case of
abandonment, is deemed to have commenced on September 3, 2010, with the filing
of the application. See ShutEmDown Sports, 102 USPQ2d at 1045. Petitioner filed
his petition for cancellation on December 13, 2012, less than three years after the
filing date of Respondent’s application.
To the extent Petitioner has established a prima facie case of abandonment on
this record based on Respondent’s responses to RFAs, detailed above, we find that
such prima facie case has been rebutted, because any nonuse of the mark by
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Respondent which occurred after the institution of the Opposition brought by
Facebook, as well as any nonuse of the mark by Respondent which occurred after
the institution of this cancellation proceeding, is excusable nonuse.
The record shows that Facebook sent Respondent a cease and desist letter
demanding that Respondent: (1) expressly abandon application Serial No. 85122420
for the mark HEALTHBOOK; (2) cancel Respondent’s www.healthbook.com domain
name registration; (3) cease any use or intended use of the HEALTHBOOK mark;
and (4) avoid using other marks that could be similar to Facebook’s FACEBOOK
mark. Eysenbach Decl. ¶ 16, 8 TTABVUE 12; Exhibit H, 8 TTABVUE 94. The
record further shows that Respondent took down the HEALTHBOOK website on or
around August 7, 2011 (Eysenbach Decl. ¶ 18, 8 TTABVUE 12), and that Facebook
filed a Notice of Opposition on August 14, 2011 against Respondent’s application,
alleging likelihood of confusion and dilution. Eysenbach Decl. ¶ 17, 8 TTABVUE 12;
Exhibit I, 8 TTABVUE 98. The record also shows that the Opposition concluded on
April 24, 2012. Id. ¶ 21, 8 TTABVUE 13; Exhibit L, 8 TTABVUE 185. Petitioner
filed the instant proceeding on December 13, 2012.
In view of the allegations and assertions made by Facebook in the Opposition
and Petitioner herein that Respondent is not entitled to its registration, and the
resulting cloud of uncertainty as to whether Respondent’s rights in the registration
would survive either proceeding, we find that Respondent was justified in limiting
or postponing its use of the mark pending the outcome of both proceedings. See
Penthouse Int’l, Ltd. v. Dyn Electronics, Inc., 196 USPQ 251, 257 (TTAB 1977)
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(“Moreover, nonuse of a mark pending the outcome of litigation to determine the
right to such use or pending the outcome of a party’s protest to such use constitutes
excusable nonuse sufficient to overcome any inference of abandonment.”).
Additionally, to the extent Petitioner has established a prima facie case of
abandonment and thus is entitled to an inference that Respondent does not intend
to resume use of the mark, such inference is rebutted by the fact that Respondent
has actively defended its right to its registration by litigating the Opposition
brought by Facebook, and this proceeding. Penthouse, 196 USPQ at 257.
In summary, the statutory presumption does not appear to apply to Petitioner’s
claim of abandonment because Petitioner filed the petition for cancellation less than
three years after Respondent filed its application. Moreover, even if Petitioner had
established a prima facie case of abandonment, Petitioner has failed to prove that
Respondent has abandoned use of its mark in Class 42 because any nonuse of the
mark by Respondent is excused by the pendency of the Opposition brought by
Facebook as well as this proceeding, and because we cannot conclude that
Respondent has no intent to resume use of the mark. In view thereof, Petitioner’s
claim of abandonment is dismissed with prejudice as to the Class 42 services.
Decision: The petition for cancellation is dismissed with prejudice as to the
Class 42 and Class 44 services identified in the registration.