Karen L. Willisv.Can’t Stop Productions, Inc.

Trademark Trial and Appeal Board

Sep 22, 2011

No. 92051215 (T.T.A.B. Sep. 22, 2011)

Faint Mailed: September 22,
2011

Cancellation No. 92051212
Cancellation No. 92051213
Cancellation No. 92051215

Karen L. Willis

v.

Can't Stop Productions, Inc.

Before Seeherman, Walters and Taylor,
Administrative Trademark Judges.

By the Board:

Petitioner, the wife and manager of a former member of the
musical recording group the Village People, has filed amended
petitions for cancellation1 of respondent’s three

1 In Cancellation No. 92051212 petitioner filed a first amended
petition to cancel on July 21, 2009, and a second amended
petition to cancel on August 11, 2009. Respondent appears to
have filed its answer as to the second amended petition to
cancel. The proper procedure would have been for petitioner to
file a motion to amend the petition to cancel with her second
amended petition, or to file it with respondent’s consent. See
Fed. R. Civ. P. 15(a)(2). In view of respondent’s answer, it
appears that respondent has consented to the amendment of the
pleading, and therefore we have accepted the second amended
petition to cancel and respondent’s answer thereto. However,
petitioner is reminded that strict compliance with the rules is
required in the future. We also note that petitioner has created
some confusion by alleging damage in the original and amended
petitions to cancel from two registrations, Nos. 1101013 and
2184290, although the petition to cancel filed in this proceeding
relates only to Registration No. 2184290, and Registration No.
1101013 is the subject of Cancellation No. 92051213. To clarify,
the Board deems the petition to cancel in Cancellation No.
92051212 as relating solely to Registration No. 2184290.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Cancellation Nos. 92051212, 92051213 and 92051215
2
registrations: two registrations are for the typed word mark,
VILLAGE PEOPLE,2 and one is for the design mark shown below:
3

This case now comes up for consideration of respondent’s
motions for summary judgment on petitioner’s pleaded grounds of
fraud, abandonment and genericness in each of the three
cancellation proceedings.
I. Single Order
While there is no motion to consolidate these
proceedings pending, Fed. R. Civ. P. 42(a), as made
applicable to Board proceedings by 37 CFR Section 2.116(a)
(Trademark Rule 2.116(a)), provides that when actions
involving common questions of law and fact are pending
before the Board, the Board may order all of the actions
consolidated, and it may make any orders concerning

2 Registration No. 1101013, issued August 29, 1978, for
“entertainment services rendered by a musical and vocal group” in
Class 41, based on an application filed November 17, 1977 and
asserting dates of first use and first use in commerce of
July 11, 1977.
Registration No. 2184290, issued August 25, 1998, for “pre-
recorded phonograph records, audio cassettes, audio tapes and
compact discs featuring music and vocals” in Class 9, based on
an application filed November 17, 1993 and asserting dates of
first use and first use in commerce of 1978; goods in class 16
were cancelled pursuant to § 8 of the Trademark Act in 2008.
3 Registration No. 2330857, issued March 21, 2000, for
“entertainment services, namely, live performances by a musical
and vocal group” in Class 41, based on an application filed
April 3, 1998, and asserting dates of first use and first use in
commerce of July 11, 1977.
Cancellation Nos. 92051212, 92051213 and 92051215
3
proceedings to avoid unnecessary costs or delay. In this
case there is sufficient commonality of factual and legal
issues in the proceedings that consolidation for
consideration of the summary judgment motions is
appropriate. All three cancellation proceedings involve the
same parties and contain very similar pleadings. However,
because Cancellation Nos. 92051213 and 92051215 are disposed
of by this order, as explained more fully below,
consolidation is unnecessary beyond the issuance of this
single order applicable to all three proceedings.
II. Sufficiency of Pleadings
A decision on summary judgment necessarily requires a
review of the operative pleadings of these three cases.
See, e.g., Asian and Western Classics B.V. v. Selkow, 92
USPQ2d 1478, 1478 (TTAB 2009). Therefore, we start by
noting that the petitions do not properly plead claims of
fraud.
The Court of Appeals for the Federal Circuit has held
that a trademark registration is obtained, or maintained,
fraudulently only if the respondent knowingly makes a false,
material representation with the intent to deceive the
USPTO. In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938,
1941 (Fed. Cir. 2009). Under Fed. R. Civ. P. 9(b), any
allegations of fraud based upon “information and belief”
must be accompanied by a statement of facts upon which the
Cancellation Nos. 92051212, 92051213 and 92051215
4
belief is founded. See Exergen Corp. v. Wal-Mart Stores,
Inc., 575 F.3d 1312, 91 USPQ2d 1656, 1670 n.7 (Fed. Cir.
2009); Meckatzer Lowenbrau Benedikt Weiss KG v. White LLC,
95 USPQ2d 1185 (TTAB 2010).
In order to properly plead a claim of fraud in a trademark
cancellation proceeding, a petitioner must allege with
particularity that the respondent knowingly made a false,
material misrepresentation when applying for a trademark
registration, or when renewing a registration, with intent to
deceive the USPTO. Enbridge Inc. v. Excelerate Energy LP, 92
USPQ2d 1537, 1540 (TTAB 2009). It is the preferred practice of
the Board that the element of intent be pled specifically, but
intent, as a condition of mind of a person, may be averred
generally. Fed. R. Civ. P. 9(b); see also DaimlerChrysler
Corp. v. American Motors Corp., 94 USPQ2d 1086, 1089 (TTAB
2010) (finding allegations of material misrepresentations
knowingly made to procure a registration constitute sufficient
allegation of intent element for pleading fraud).
Petitioner bases her claims of fraud on various theories
that require some construction and which we summarize as
follows: 1) respondent provided false dates of first use in its
applications either in the application as originally filed or
in a statement of use; 2) the marks have not been in use in
commerce since the original Village People group disbanded and
respondent’s post-registration filings continued this fraud
Cancellation Nos. 92051212, 92051213 and 92051215
5
regarding dates of use; 3) the marks misrepresent the source of
the goods because the Village People group disbanded about
1982; and 4) various claims relating to the nature of
respondent’s services, as discussed more fully below. To the
extent petitioner considers each of these claims to allege a
particular type of fraud, we consider them each in turn.
1. Dates of Use in the Applications/Statement of Use
Petitioner alleges in her amended petitions for
cancellation that the dates of first use claimed in the
applications which resulted in issuance of respondent’s
registrations, namely, July 11, 1977 in Registration Nos.
1101013 and 2330857, and 1978 in Registration No. 2184290, were
false.
With regard to Registration Nos. 1101013 and 2330857, for
the mark VILLAGE PEOPLE and the design mark for entertainment
services rendered by a musical and vocal group, petitioner
argues that the only member of the “group” as of the July 11,
1977 claimed date of first use was petitioner’s husband, who
was accompanied by professional background singers. To the
extent petitioner is alleging that the date of use is false or
inaccurate because her husband only performed with background
singers as of the claimed date of first use and did not perform
with others who would later become known as members of the
Village People group until after July 11, 1997, we do not find
this distinction to state a claim of fraud.
Cancellation Nos. 92051212, 92051213 and 92051215
6
With regard to Registration No. 2184290, also for the mark
VILLAGE PEOPLE, but for various types of recordings, petitioner
essentially argues that the first musical album was recorded in
July 1977, not 1978. This claim also fails to state a claim of
fraud because the dates of first use alleged by an applicant in
a use-based application or statement of use filed in an intent-
to-use application, even if false, do not constitute fraud, as
long as there was technical trademark use on or before the
filing date of the application or statement of use. Clearly,
petitioner contends that there was use prior to the filing date
of November 17, 1993.
With respect to the design mark shown in Registration No.
2330857 for entertainment services, the application was filed
on April 3, 1998, and claimed a date of first use of July 11,
1977. Petitioner alleges, however, that the earliest date the
mark could have been used was 1979, because all of the
characters represented in the mark did not exist until that
time, and the appearance of the characters changed over time.
This claim, too, does not state a claim of fraud, because by
petitioner’s own reckoning, all the characters represented in
the mark were part of the group by the time the application was
filed. Again, a claim of fraud based on assertion of a false
date of first use will not lie unless there is no use of the
mark on or before the filing date.
Cancellation Nos. 92051212, 92051213 and 92051215
7
Respondent contends that petitioner has not adequately
alleged that the marks were not in use as of the filing dates
of the applications or statements of use, submits further
evidence of its claimed dates of use, and argues that, as a
matter of law, there is no proper pleading of claims of fraud
regarding the dates of use. We agree.
In view thereof, petitioner’s fraud claims based on
allegedly false dates of first use are stricken.
2. Non-use as of the Post Registration Filing Dates
Petitioner alleges that respondent was not using the marks
on the filing dates of the respective Section 8 and 15
declarations, and the declarations filed in the Section 9
renewal applications, because the specimens submitted with the
post registration declarations were not in continuous use for
the five years immediately preceding the filing of the
declarations. We construe these as claims of fraud for non-
use. Fraud based on non-use of a mark occurs when a party
knowingly, and with the intent to deceive the USPTO, represents
that it is using the mark in connection with goods or services,
when in fact no use of the mark has been made. Herbaceuticals,
Inc. v. Xel Herbaceuticals, Inc., 86 USPQ2d 1572 (TTAB 2008).
Specimens of use need only illustrate current use of the
mark at the time of filing the Section 8 and 15 declarations
and the application for renewal. In fact, a declaration of
continuing use filed pursuant to Section 8 does not require
Cancellation Nos. 92051212, 92051213 and 92051215
8
that the mark be in use for the five years preceding the filing
of the declaration, only that the mark be in use at the time
the declaration is executed. The same is true of the
application for renewal. Even for a Section 15 declaration,
which asserts five years of continuous use, there is no
requirement that the same specimen be used for those five
years, only that the mark be in use for five continuous years
prior to the filing of the declaration. To the extent
petitioner is claiming fraud on these grounds, petitioner
simply misunderstands the law.4 In view thereof, petitioner’s
fraud claims based on allegations that the specimens were not
in use at the time of the post registration filings are
stricken as insufficient.
3. Misrepresentation of Source
A claim of misrepresentation of source under Section 14(3)
is a separate claim from fraud, and has not been separately
pleaded by petitioner. It pertains to situations where a
registered mark is used to deliberately misrepresent that goods
or services originate from the registrant when in fact those
goods or services originate from the petitioner. A pleading of
misrepresentation of source must include allegations of blatant
misuse of the mark by the registrant in a manner calculated to

4 Petitioner concedes that the use made by respondent’s licensee
Universal Music and Video Distribution inures to respondent’s
benefit and, in her opposing brief in Cancellation No. 92051212,
withdraws her reliance on the claim that use was made by
respondent’s licensee, rather than by respondent.
Cancellation Nos. 92051212, 92051213 and 92051215
9
trade on the goodwill and reputation of the petitioner. Otto
International Inc. v. Otto Kern GmbH, 83 USPQ2d 1861, 1863
(TTAB 2007). Petitioner’s allegations fall short of these
requirements. In view thereof, to the extent petitioner bases
her fraud claims on alleged misrepresentation of source, the
claims are insufficient both as fraud claims and as separate
misrepresentation of source claims, and are stricken.
4. Nature of the Services
Petitioner makes various claims regarding the nature of
respondent’s services, including, the Village People is not a
“musical and vocal group” but a “concept group;”5 the design
mark does not depict petitioner’s husband, Victor Willis;
subsequent groups did not include petitioner’s husband as a
member or performer; and the group members lip-sync when
performing and this constitutes “Milli Vanilli fraud.” The
Board’s jurisdiction is limited to the registrability of
trademarks, and none of these claims constitutes a legally
cognizable trademark claim within the Board’s jurisdiction.
5. Requirements for Adequate Fraud Pleading
Petitioner’s claims recite that “upon information and
belief” fraud has been committed, but these claims are largely
devoid of any facts upon which the alleged belief can be
reasonably based. Further, petitioner has not alleged fraud

Cancellation Nos. 92051212, 92051213 and 92051215
10
with the required particularity. It is only upon review of the
declarations of petitioner and her husband, Victor Willis,
attached to petitioner’s papers opposing respondent’s motion
for summary judgment, that we discern a possible claim, but the
claim is not adequately pleaded. With respect to Registration
No. 2184290, that possible claim is non-use of the mark VILLAGE
PEOPLE as of the underlying application filing date of November
17, 1993, and non-use of the mark as of the date of execution
of all subsequent declarations of continued use, on pre-
recorded phonograph records, audio cassettes and audio tapes
featuring music and vocals.
We emphasize that, for the reasons set out above,
petitioner has not properly pleaded any claim of fraud, but we
nonetheless note that respondent has not presented evidence in
support of its motion for summary judgment that would entirely
preclude proper potential pleading by petitioner of non-use
claims, and possibly a fraud claim based on allegations of non-
use. While respondent has presented evidence of use on pre-
recorded phonograph records for the years 1977-1982, there is
no evidence offered that the mark was used beyond that date for
those goods.
Therefore, petitioner’s claims of fraud are legally
insufficient and are hereby stricken from the pleadings.

5 To the extent petitioner intends this as a claim of abandonment
for the identified services, the claim is addressed below in the
section on abandonment.
Cancellation Nos. 92051212, 92051213 and 92051215
11
However, petitioner may, if appropriate, submit an amended
petition to cancel asserting proper claims of non-use and/or
fraud in Cancellation No. 92051212 only.
In view thereof, petitioner may, within THIRTY DAYS
from the mailing date of this order, submit a third amended
petition to cancel in Cancellation No. 92051212 which
adequately pleads fraud and/or non-use.
We turn now to the claims of abandonment and
genericness argued in respondent’s motions for summary
judgment as to all three cases.
III. Summary Judgment
Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). A party moving for summary judgment has the
initial burden of demonstrating the absence of evidence to
support the nonmoving party's case, and that it is entitled
to judgment as a matter of law. Sweats Fashions Inc. v.
Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1795-
1796 (Fed. Cir. 1987), citing Celotex Corp. v. Catrett, 477
U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986). When the moving
party has supported its motion with sufficient evidence
which, if unopposed, indicates there is no genuine dispute
of material fact, the burden then shifts to the non-moving
party to demonstrate the existence of a genuine dispute as
Cancellation Nos. 92051212, 92051213 and 92051215
12
to a material fact to be resolved at trial. Enbridge, 92
USPQ2d at 1540. A factual dispute is genuine if, on the
evidence of record, a reasonable fact finder could resolve
the matter in favor of the non-moving party. See, Opryland
USA Inc. v. Great American Music Show Inc., 970 F.2d 847, 23
USPQ2d 1471, 1472 (Fed. Cir. 1992); Olde Tyme Foods, Inc. v.
Roundy's, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed.
Cir. 1992).
A trademark registration more than five years old may
be canceled at any time if, inter alia, the mark becomes
generic or is abandoned, or if the registration was obtained
through fraud. See 15 U.S.C. § 1064.
A. Abandonment
Petitioner makes similar allegations regarding
abandonment of all three of the registered marks, namely
that since the 1980’s the marks have only been licensed for
live performances and no new recordings have been made since
1985; that the mark is for a “concept group,” not a musical
group; and that changes have been made to the design mark
because of changes to certain of the characters depicted in
the mark. Petitioner alleges that these changes amount to
abandonment of all three marks without an intent to resume
use.
Under Section 45 of the Trademark Act, a mark is deemed
abandoned if its use has been discontinued without intent to
Cancellation Nos. 92051212, 92051213 and 92051215
13
resume use, and nonuse in the United States for a period of
three consecutive years establishes a prima facie case of
abandonment. See 15 U.S.C. § 1127. Thus, in order to prove
abandonment, petitioner must be able to show that
respondent’s use of the mark has been discontinued for at
least three consecutive years, or that respondent has
discontinued use of the mark without an intent to resume
use. Id.; see also, On-Line Careline, Inc. v. America
Online, Inc., 229 F.3d 1080, 1087, 56 USPQ2d 1471, 1476
(Fed. Cir. 2000). Conversely, respondent, as the party
moving for summary judgment dismissing the claims of
abandonment, must establish continuous use of its marks for
all of the goods and services named in the registrations, or
that it has not ceased use without an intent to resume use.
Respondent provides declarations from its managing director,
Henri Belolo, declaring that Can’t Stop Productions has
offered pre-recorded musical recordings since 1977 and they
are currently distributed, and that it has continually owned
and used the marks with entertainment services since 1977.
Also provided were the declarations of Mitchell Weiss, the
manager of respondent’s licensee, declaring that the
licensed marks include VILLAGE PEOPLE and the design mark,
and the marks have been continuously used by the licensee
for over twenty years for musical performances. Attached to
these declarations is evidence in the form of exhibits to
Cancellation Nos. 92051212, 92051213 and 92051215
14
show that the three marks have continuously been used and
are still in use.
We must view respondent’s motion for summary judgment
on abandonment in a light most favorable to petitioner as
the non-moving party. With regard to Registration No.
2184290, petitioner pleads that respondent cannot be
offering recordings because the group has made no new
recordings since the 1980’s, and the mark has been licensed
only for live performances since that time. Respondent has
presented declarations and exhibits showing that compact
discs have been continuously sold up to the present time,
and petitioner does not dispute that point. Respondent has
not shown, however, that it is still using the mark in
connection with pre-recorded phonograph records, audio
cassettes and audio tapes featuring music and vocals. At
the least there is a genuine dispute of material fact as to
whether respondent has ceased using its mark in connection
with those goods. Accordingly, respondent’s motion for
summary judgment is denied in Cancellation No. 92051212.
With regard to Registration Nos. 1101013 and 2330857
for entertainment services, petitioner’s arguments revolve
around whether the performing group is a “real” musical and
vocal group, or a “concept group,” but petitioner does not
allege or even argue that no performances are taking place.
Petitioner presents her own declarations that she has seen
Cancellation Nos. 92051212, 92051213 and 92051215
15
the group perform, taking issue with the manner of
performance, not the fact of it.6 Respondent has submitted
magazine and internet advertisements, supported by the
declaration of Mitchell Weiss, showing that the mark VILLAGE
PEOPLE and the design mark have been used in connection with
musical performances in 1994, 1995, 1997, 1998, 2001, 2002,
2003, 2004, 2005, 2006, 2008 and 2010. Further, respondent
has asserted that use has been continuous, as evidenced by
the Belolo and Weiss declarations. Whether or not
petitioner believes there is a distinction between a “real”
musical and vocal group and a concept group, petitioner has
not raised a genuine dispute that the performances by
respondent’s group are not the rendering of performances by
a musical and vocal group. Accordingly, there is no genuine
dispute that respondent has used its marks for entertainment
services in commerce without any gap of three years of non-
use, and prima facie evidence of abandonment therefore does
not exist. Accordingly, respondent’s motions for summary
judgment on the grounds of abandonment are granted in
Cancellation Nos. 92051213 and 92051215.
B. Genericness

6 The Board notes that petitioner filed two additional
declarations in Cancellation No. 92051213 because of an alleged
scanning and upload error in the e-filing of a declaration signed
by Victor Willis in that proceeding. Respondent filed an
objection to the filing as untimely. Under the circumstances of
this case, where an essentially identical declaration was filed
in the other two cancellation proceedings, the Board grants the
Cancellation Nos. 92051212, 92051213 and 92051215
16
Although respondent has brought a motion for summary
judgment regarding petitioner’s genericness claims, in
actuality respondent is arguing that this ground should be
dismissed. Petitioner alleges in all three cases that the
mark is generic because it identifies people in a village,
and provides evidence attached to her response briefs to
show the term VILLAGE PEOPLE is used to describe groups of
people living in a community or small town. Respondent
argues that petitioner does not allege that there are any
other users of the mark for musical recordings or
entertainment services, and provides evidence, supported by
the Belolo declaration, that it has been the exclusive user
of the VILLAGE PEOPLE marks in connection with musical
recordings and performances for a significant period of
time.
We note first that petitioner’s allegations cannot
apply to the design mark shown in Registration No. 2330857,
because the words “Village People” do not appear in the
mark.
A term is generic if it is the common descriptive name
for a genus of goods or services, and should be refused
registration because it does not function as a trademark or
service mark. Park’ N Fly, Inc. v. Dollar Park and Fly,
Inc., 469 U.S. 189, 194 (1985). But a term can be a generic

motion to amend to the extent that the corrected declaration of
Cancellation Nos. 92051212, 92051213 and 92051215
17
term in one context and arbitrary or fanciful in another,
and thus serve as a valid trademark when used as a mark for
goods or services in another context. It is fallacious to
allege that because a term is the generic name for one
thing, it cannot serve as the trademark for another thing.
See, e.g., Eurotech, Inc. v. Cosmos European Travels
Aktiengesellschaft, 213 F.Supp.2d 612, 620, (E.D. Va. 2002)
(rejecting as fallacious the argument that because COSMOS is
generic for universe, it cannot serve as a trademark for
travel agency services); see also 2 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 12:1 (4th
ed. WESTLAW Update Aug. 2011).
We find that petitioner has not, and apparently cannot,
raise any genuine dispute of material fact with regard to
this ground as petitioner has submitted no evidence, nor
even made allegations, to show the term VILLAGE PEOPLE is
used as a generic term for musical recordings or
performances. Accordingly, summary judgment is granted with
respect to the ground of genericness in all three
proceedings.
IV. Summary
In summary, respondent’s motions for summary judgment
are granted on petitioner’s claims of abandonment in
Cancellation Nos. 92051213 and 92051215, and as to

Victor Willis is substituted in Cancellation No. 92051213.
Cancellation Nos. 92051212, 92051213 and 92051215
18
genericness in all three proceedings. Because there are no
properly pleaded fraud or non-use claims in Cancellation
Nos. 92051213 and 92051215, and there do not appear to be
any such viable claims against Registration Nos. 1101013 and
2330857 in those proceedings, summary judgment on the
grounds of abandonment and genericness in those proceedings
are a final disposition of the cases. Accordingly,
Cancellation Nos. 92051213 and 92051215 are dismissed with
prejudice.7
V. Schedule
Within THIRTY (30) DAYS of the mailing date of this
order petitioner may submit a third amended petition to
cancel in Cancellation No. 92051212 which adequately pleads
fraud and/or non-use of certain goods, failing which the
cancellation proceeding will go forward solely on the issue
of abandonment. In the event petitioner files and serves
such an amended petition for cancellation, the Board will

7 Because this is a final decision of the Board, the decision as
to Cancellation Nos. 92051213 and 92051215 may be appealed to the
Court of Appeals for the Federal Circuit or to a U.S. District
Court with appropriate jurisdiction. See Trademark Act Sections
21(a)(1) and 21(b)(1), 15 U.S.C. §§ 1071(a)(1) and 1071(b)(1);
Trademark Rule 2.145, 37 C.F.R. § 2.145; and TBMP § 901.01 (3d
ed. 2011). The decision in Cancellation No. 92051212 is
interlocutory in nature, therefore, any appeal thereof can be
raised only after final disposition of that proceeding. See
Copeland's Enterprises Inc. v. CNV Inc., 12 USPQ2d 1562 (Fed.
Cir. 1989).
Cancellation Nos. 92051212, 92051213 and 92051215
19
assess the sufficiency of those pleadings and reset answer
dates, if appropriate.8
Proceedings in Cancellation No. 92051212 are resumed
and dates are reset as set out below.
Expert Disclosures Due 10/27/2011
Discovery Closes 11/26/2011
Plaintiff's Pretrial Disclosures Due 1/10/2012
Plaintiff's 30-day Trial Period Ends 2/24/2012
Defendant's Pretrial Disclosures Due 3/10/2012
Defendant's 30-day Trial Period Ends 4/24/2012
Plaintiff's Rebuttal Disclosures Due 5/9/2012
Plaintiff's 15-day Rebuttal Period
Ends 6/8/2012

***

8 The parties should note that the evidence submitted in
connection with the motions for summary judgment is of record
only for consideration of those motions. To be considered at
final hearing, any such evidence must be properly introduced in
evidence during the appropriate trial period. See, Levi Strauss
& Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993).
The parties may, however, stipulate that any or all of the
summary judgment evidence be treated as properly of record for
purposes of final decision. See, e.g., Eveready Battery Co.,
Inc. v. Green Planet, Inc., 91 USPQ2d 1511, 1513 (TTAB 2009)
(parties stipulated that evidence submitted in connection with
summary judgment motion shall be deemed of record for trial
pursuant to Accelerated Case Resolution (ACR)); Micro Motion Inc.
v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998) (parties
stipulated that evidence submitted in connection with summary
judgment motion shall be deemed of record for trial).