No. 91227749 (T.T.A.B. Mar. 28, 2018)

Lori Burtonv.Miranda McIntosh

Trademark Trial and Appeal BoardMar 28, 2018

No. 91227749 (T.T.A.B. Mar. 28, 2018)

This Opinion is not a Precedent of the TTAB Mailed: March 28, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Lori Burton v. Miranda McIntosh _____ Opposition No. 91227749 _____ Joseph W. Stadnicar of Hammond Stier & Stadnicar LLC, for Lori Burton John M. Mueller and David A. Mancino of Baker & Hostetler LLP, for Miranda McIntosh. _____ Before Taylor, Wolfson and Heasley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: This case presents a trademark ownership dispute between parties who once had a business relationship. Miranda McIntosh (“Applicant”) seeks registration on the Principal Register of the mark BOOTIQUE ENVIE (in standard characters) for “purses, handbags, all-purpose carrying bags, wine bags with handles for carrying or Opposition No. 91227749 - 2 - holding wine, whiskey bags with handles for carrying or holding whiskey” in International Class 18.1 Lori Burton (“Opposer”) has opposed registration of the applied-for mark on the ground that she is the rightful owner of the mark, not Applicant.2 Applicant denies all of Opposer’s allegations.3 For the reasons that follow, we find that Applicant was not the owner of the mark when she filed the subject application. The application is, in consequence, void ab initio. I. Standing “Any person who believes that [s]he would be damaged by the registration of a mark upon the principal register…may, upon payment of the prescribed fee, file an opposition in the Patent and Trademark Office, stating the grounds therefor….” 15 U.S.C. § 1063. In order to meet the standing requirement under the statute, an opposer need only show that she has a real interest, i.e., a personal stake, in the outcome of the proceeding and a reasonable basis for her belief that she will be damaged. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir. 1999). A belief in likely damage can be shown by establishing a direct commercial interest. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Opposer claims ownership of BOOTIQUE ENVIE for the associated goods, 1 Application Serial No. 86718933 was filed on August 8, 2015, based upon Applicant’s allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming April 1, 2015 as both the date of first use and the date of first use in commerce. 2 Notice of Opposition, 1 TTABVUE 3. 3 Answer, 4 TTABVUE 2. Opposition No. 91227749 - 3 - to the exclusion of Applicant.4 Based on this proprietary and commercial interest, Opposer clearly has a personal stake in the outcome of this proceeding. UVeritech, Inc. v. Amax Lighting, Inc., 115 USPQ2d 1242, 1245 (TTAB 2015). She therefore has standing to oppose registration of Applicant’s mark. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1061-62 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015) (Cuban cigar manufacturer had standing to seek cancellation of competitor’s trademark registrations). II. The Record The record includes the pleadings, Applicant’s application file,5 and Opposer’s testimonial deposition, with exhibits.6 Applicant did not introduce any evidence during her testimony period. III. Background Opposer Lori Burton testified that in the Spring of 2014 she and a friend, Anna Fleckenstein, began making “boot purses,” that is, “We take an old pair of boots and redesign them into a nice pretty purse.”7 Anna Fleckenstein thought Applicant Miranda McIntosh “would be a good source for selling the purses because she is a 4 Notice of Opposition ¶¶ 1, 2, 1 TTABVUE 3. 5 Trademark Rule 2.122(b), 37 CFR § 2.122(b). 6 9 TTABVUE. Opposer submitted one exhibit to her testimony deposition, consisting of a copy of the mark BOOTIQUE ENVIE on a blank piece of paper and photographs of the boot purses. 9 TTABVUE 48-52. Applicant’s “Exhibit 1” consisted of a copy of the Notice of Opposition. 9 TTABVUE 53-54. During cross-examination, Applicant also had printouts of certain text messages between the parties, taken from Applicant’s cell phone, marked as “Exhibit 2.” Opposer’s counsel objected that the text messages were incomplete and out of chronological order. 9 TTABVUE 33-37. Neither party introduced Applicant’s second exhibit into evidence during her respective testimony period. 7 Burton dep. 6:9-10, 14-16; 7:8-12; 9 TTABVUE 10-11. Opposition No. 91227749 - 4 - horse trainer and she is involved with a lot of people that are into western everything, horses and stuff like that.”8 Opposer eventually met with Applicant in January 2015 and entered into an unwritten business arrangement by which Opposer would sew the purses or other bags and Applicant would sell some of them.9 Opposer sold some of the bags herself.10 Applicant supplied some of the materials used to make the boot purses or bags, but her main purpose was to sell them, according to Opposer.11 As Applicant became involved in the business, Anna Fleckenstein remained a part of the business, even though “[s]he had decided that once Miranda and I had, you know, kind of got the ball rolling after January, that she kind of wanted to step back a little,” Opposer testified. “But she was still in the mix. You know, like I would ask her for business advice and then we would kind of just shoot things back and forth. But as far as the running of the operation of the business, she had stepped back.”12 In late February or early March 2015, “once we [Opposer and Applicant] had started talking and discussed the, the basics of the business and how we wanted it to run,” Opposer testified, “then we were shooting names back and forth and I came up with the name Bootique Envie and she [Applicant] agreed.”13 Under this 8 Burton dep. 5:25-6:6; 9 TTABVUE 9-10. 9 Burton dep. 17:16-21; 9 TTABVUE 21. 10 Burton dep. 17:22-24; 9 TTABVUE 21. 11 Burton dep. 17:16-18:5, 23:12-17, 9 TTABVUE 21-22, 27. 12 Burton dep. 7:11-8:5, 9 TTABVUE 11-12. 13 Burton dep. 6:22-7:7, 9 TTABVUE 10-11. Opposition No. 91227749 - 5 - arrangement, Opposer produced the purses and Applicant made some sales.14 The boot purses looked like this: 15 Opposer originally sewed embroidered tags inside the boot purses, but Applicant then commissioned brass halter tags for the purses bearing the mark BOOTIQUE ENVIE, as displayed on the purse above left.16 The parties’ business relationship was short-lived. Between January and July 2015, they funneled complaints about one another through Anna Fleckenstein, and then, on July 23, 2015, the relationship came to an end. As Opposer put it, Applicant “had a problem with something that I didn’t agree with that she was, that she wanted to do with the business. And she went to Anna and told Anna that she didn’t know what she was going to do with me. And so, Anna called me and asked me what was 14 Burton dep. 9:11-14, 9 TTABVUE 13. 15 Burton dep., 11:25-13:4, Plaintiff’s exhibit 1, 9 TTABVUE 15-17, 51-52. 16 Burton dep. 12:16-13:17, 9 TTABVUE 16. Opposition No. 91227749 - 6 - going on. And I had had enough. I had had enough of being told that I couldn’t run my business the way that I wanted to run it or have any input in it, so I text[ed Applicant] Miranda and I told her that I was finished, that I didn’t want work with her anymore.”17 “I told her that I was going to continue making purses under the name [BOOTIQUE ENVIE] because it was my business.”18 Applicant did not respond to Opposer’s texts that day, July 23, 2015. But a scant 15 days later, on August 8, 2015, Applicant filed the subject Application to register the trademark BOOTIQUE ENVIE in standard characters on the Principal Register for “purses, handbags” and related carrying bags, claiming actual use in commerce since April 1, 2015. Opposer takes the position that under the parties’ oral agreement, she was the manufacturer of the purses and Applicant was the distributor: “The agreement was, is that I would make the purses and she would sell them.”19 As manufacturer of the goods, Opposer maintains, she is the owner of the mark, not Applicant, who could not acquire a right in the mark merely by moving Opposer’s goods in trade.20 Applicant, on the other hand, takes the position that she was not just a distributor for Opposer, but a joint venturer with Opposer, marketing bags under the BOOTIQUE ENVIE mark.21 She relies on Opposer’s own testimony, which frequently 17 Burton dep. 10:1-21; 9 TTABVUE 14. 18 Burton dep. 10:25-11:4; 9 TTABVUE 14-15. 19 Burton dep. 24:22-23; 9 TTABVUE 28. 20 Notice of Opposition, 1 TTABVUE 3; Opposer’s brief, 12 TTABVUE 3-4. 21 Applicant’s brief, 13 TTABVUE 3-4. Opposition No. 91227749 - 7 - refers to their business relationship as a “venture.” For example, on cross- examination, Opposer was asked: Q. [A]t the time that you came up with the name Bootique Envie - - A. Correct. Q. - - for the products- - A. Right. Q. In February, March of 2015, you and Ms. McIntosh were in a venture together, right? A. Yes. Q. And you said that you came up with the name? A. Yes. Q. And she agreed to it - - A. Yes. Q. - - as part of that venture, right? A. Uh-huh.22 Later in the cross-examination (after Opposer was instructed to listen to the full question before answering), she was asked: Q. You testified earlier that you were in a joint venture? A. Correct. Q. So, but in here [the notice of opposition] says she’s only a distributor. How is that the same thing? 22 Burton dep. 16:10-17:1, 9 TTABVUE 20-21. Opposition No. 91227749 - 8 - A. [after objection] Her main job as part of the business was to sell purses. Q. But you also testified that she also supplied materials for you, right? A. Yes. Q. Is that the role of a distributor? A. It depends on how you set your business up, I suppose. Q. Well, how do you define distributor? A. [after objection] To sell purses.23 Applicant agrees that the parties’ business relationship came to an end on July 23, 2015.24 And Opposer stated that “I have sold nothing since July 23rd” at her testimonial deposition, taken on April 14, 2017.25 Due to the dissolution of the alleged joint venture, followed by Opposer’s non-use of the mark, Applicant contends that the mark was abandoned, enabling her to apply for its registration.26 For these reasons, Applicant concludes that Opposer has failed to carry her burden of proving that the subject mark should be refused registration.27 IV. Applicable Law Only the owner of a mark may apply to register it. 15 U.S.C. § 1051(a). A use- based application filed by a person who does not own the mark at the time of filing is void ab initio. Lyons v. Am. Coll. Of Veterinary Sports Med. & Rehab., 859 F.3d 1023, 23 Burton dep. 23:4-25, 9 TTABVUE 27. 24 Applicant’s brief, 13 TTABVUE 4. 25 Burton dep. 20:13-14, 9 TTABVUE 24. 26 Applicant’s brief, 13 TTABVUE 3-4. 27 Applicant’s brief, 13 TTABVUE 5-6. Opposition No. 91227749 - 9 - 123 USPQ2d 1024, 1027 (Fed. Cir. 2017); Huang v. Tzu Wei Chen Food Co. Ltd., 849 F.2d 1458, 7 USPQ2d 1335, 1336 (Fed. Cir. 1988) (affirming Board’s holding that an application was void ab initio because the applicant was not the owner of the mark on the filing date); Hollywood Casino LLC v. Chateau Celeste, Inc., 116 USPQ2d 1988, 1992 (TTAB 2015); UVeritech, 115 USPQ2d at 1245 n.6; see also Trademark Rule 2.71(d), 37 C.F.R. § 2.71(d) (“An application filed in the name of an entity that did not own the mark as of the filing date of the application is void.”). Where, as here, “both parties are relying upon activities the two conducted in concert with one another, each in an attempt to establish prior rights in a mark over the other, the dispute centers on ownership of the mark.” Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 (TTAB 2015). Ownership “must be determined on a case by case basis dependent on the particular facts adduced in each case.” In re Briggs, 229 USPQ 76, 77 (TTAB 1986). “In trying to determine which party is entitled to claim ownership of the mark, we observe at the outset that the record is hardly a model of clarity.” Uveritech, 115 USPQ2d at 1245. In the absence of a written agreement, we must understand the nature and history of the parties’ business dealings, and how they went from a business relationship to an adversarial relationship in six months’ time. See id. at 1246. In so doing, we shall consider in turn the parties’ warring theories of the case: manufacturer-distributor, joint venture, and abandonment. A. Manufacturer-Distributor “[I]t has been held that the question of ownership of a mark as between the manufacture[r] of the product to which the mark is applied and the exclusive Opposition No. 91227749 - 10 - distributor of the product is a matter of agreement between them, and that in the absence of an agreement, there is a legal presumption that the manufacturer is the owner of the mark.” Uveritech, 115 USPQ2d at 1249 (quoting Lutz Superdyne, Inc. v. Arthur Brown & Bro., Inc., 221 USPQ 354, 362 (TTAB 1984). This presumption in favor of the manufacturer may be rebutted upon consideration of various factors: In order to resolve the prototypical dispute over the ownership of a single, indivisible trademark when there is a neglect of formalities in defining the business relationship between parties, we find the similar factual frameworks adopted by the courts in Sengoku Works and Wrist-Rocket instructive. These courts looked to several relevant factors, including the following: (1) which party created and first affixed the mark to the product; (2) which party’s name appeared with the trademark on packaging and promotional materials; (3) which party maintained the quality and uniformity of the product, including technical changes; (4) which party does the consuming public believe stands behind the product, e.g., to whom customers direct complaints and turn to for correction of defective products; (5) which party paid for advertising; and (6) what a party represents to others about the source or origin of the product. No one factor is dispositive. Uveritech, 115 USPQ2d at 1249 (citing Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217, 40 USPQ2d 1149, 1152 (9th Cir. 1996), modified on other grounds, 97 F.3d 1460 (9th Cir. 1996) and Wrist-Rocket Mfg. Co. v. Saunders, 379 F. Supp. 902, 183 USPQ 17 (D. Neb. 1974), aff’d in part and rev’d in part, 516 F.2d 846, 186 USPQ 5 (8th Cir. 1975)); see generally Pamela S. Chestek, Who owns the mark? A Single Framework for Resolving Trademark Ownership Disputes, 96 Trademark Rep. 681 (May-June, 2006). Cf. Lyons v. Am. Coll. Of Veterinary Sports Med. & Rehab., 123 Opposition No. 91227749 - 11 - USPQ2d at 1028 (relevant tests for resolving ownership disputes are delineated in various ways, yet all substantively include the parties’ objective intentions or expectations, who the public associates with the mark, and to whom the public looks to stand behind the quality of goods or services offered under the mark). Consistent with the factors identified in Uveritech, we find that Applicant does not own the mark. (1) Here, as in that case, Opposer conceived of the mark. That, however, is a neutral factor, as she did so with Applicant’s approval after they formed their business relationship, not before.28 (2) The record does not show that either party’s name appeared with the trademark on packaging and promotional materials, so this factor is neutral. (3) Opposer clearly maintained the quality of the boot purses, including technical changes. As the sole artisan crafting the purses, Opposer testified, “every purse that I made is individual, unique. I never make two the same.”29 The craftsmanship was Opposer’s responsibility, and Applicant tacitly acknowledged as much by supplying materials to her, materials that Opposer maintained “in inventory at my shop.”30 Thus, this factor―maintaining the quality of the goods―weighs heavily in favor of Opposer. (4) For much the same reason, Opposer was the party to whom customers could turn for correction of defective products. From the inception of the business, which began before Applicant joined it, Opposer was the sole manufacturer of the boot purses―the only person to whom customers could turn to correct any 28 Burford dep. 16:20-17:1; 9 TTABVUE 20-21. See Wrist-Rocket, 183 USPQ at 19 (manufacturer had no prior right to mark when he and distributor started their relationship). 29 Burford dep. 12:24-25; 9 TTABVUE 16. 30 Burford dep. 20:9-10, 23:15-17, 9 TTABVUE 24, 27. Opposition No. 91227749 - 12 - defects. Applicant, in contrast, had no responsibility for quality control; indeed, she was not even the exclusive distributor of the product, as Opposer sold the boot purses to customers, too.31 Hence, this factor also weighs heavily in Opposer’s favor. (5) Opposer originally sewed embroidered tags inside the boot purses, and Applicant then commissioned brass halter tags for the purses bearing the mark BOOTIQUE ENVIE which were subsequently attached to the product as evidenced in Exhibit one to Opposer’s deposition.32 But there is no evidence of which party paid for advertising, so this factor is neutral. (6) By her actions as well as her words, Opposer consistently stood behind the product as its source or origin. She was, in essence, the linchpin of the business, from its commencement, when she worked with Ms. Fleckenstein, to its continuation, when she worked with Applicant. Throughout, she was the manufacturer who stood behind the goods. And when she and Applicant parted ways, “I also told her I was keeping the name on July 23rd,” Opposer testified. “I told her that I was going to continue making purses under the name because it was my business.”33 In sum, the factors that indicate ownership of a mark―particularly controlling the quality of manufacture and standing behind the product―weigh against Applicant’s claim of ownership. B. Joint Venture It is undisputed that Opposer made the boot purses and that Applicant was one 31 Burton dep. 17:22-24, 9 TTABVUE 21. 32 Burton dep. 12:16-13:17, 9 TTABVUE 16-17. 33 Burton dep. 11:2-4, 20:20-21, 9 TTABVUE 15, 24. Opposition No. 91227749 - 13 - of its distributors. But Applicant maintains that there was something more to the relationship than that of simply manufacturer/distributor. Applicant also supplied some of the materials Opposer used to sew the boot purses, Applicant commissioned the brass halter tags bearing the mark, and Applicant made―or endeavored to make―some decisions about the conduct of the business, decisions with which Opposer disagreed, and which ultimately led to the end of their business relationship.34 Although these factors suggest that the parties may have had something more than a simple manufacturer/distributor relationship, or that their relationship could have developed over time into something more than that, the record evidence, such as it is, is insufficient to support Applicant’s position that their erstwhile business relationship was a “joint venture.” Although Opposer may have used the term “venture” in her testimony, or even “joint venture” when prompted by Applicant’s counsel, we understand her to use the term in a colloquial sense. See Nahshin v. Product Source Int’l LLC, 107 USPQ2d 1257, 1262 n. 9 (TTAB 2013) (“we understand the term [‘partner’] to be used, not in its legal sense, but as a colloquial way to refer to the other party to a contract….”). A “venture,” in this colloquial sense, simply means “[a] business enterprise involving some risk in expectation of gain.”35 Not all business ventures are joint ventures. 34 Burton dep. 10:9-21, 9 TTABVUE 14. See text accompanying n. 18. 35 THE AMERICAN HERITAGE DICTIONARY, AHDictionary.com 3/7/2018. The Board may take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format or have regular fixed editions. See, e.g., In re Cordua Rests. LP, 110 USPQ2d Opposition No. 91227749 - 14 - As a general rule, a joint venture requires “a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained.” Hoyle Knitting Mills, Inc. v. T.J. Manalo, Inc., 12 USPQ2d 1720, 1724 (TTAB 1989); accord Reflange Inc. v. R-Con Int’l, 17 USPQ2d 1125, 1128 (TTAB 1990); In re Hercofina, 207 USPQ 777, 779 (TTAB 1980) (citing inter alia Black’s Law Dictionary (Fifth Edition 1979)). The record in this case falls far short of proving the elements of a joint venture, particularly the elements of a right to share in the profits and a duty to share in any losses. Although Applicant supplied some of the materials with which to make the boot purses, she did not inform her supposed joint venturer how much she spent in purchasing those materials, according to Opposer: Q. And Ms. McIntosh would also provide you with materials for stitching the bags, correct? A. Some of the materials. … Q. Do you know approximately how much money Ms. McIntosh spent in, in purchasing or providing those materials? A. No. Because she never gave me that information. … 1227, 1229 n.4 (TTAB 2014) aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1487 n. 53 (TTAB 2017). Opposition No. 91227749 - 15 - Q. So, she never communicated to you how much she spent on the materials that she provided to you? A. No.36 Absent information of this sort, we are left to guess at whether there was an agreement for sharing profits and losses, and if so, what its terms might have been. Opposer’s testimony does not enlighten us on these required elements. The most we can glean from the record evidence is that Applicant’s attempts to develop the parties’ business relationship into something more than manufacturer/distributor were sometimes accepted and sometimes rebuffed by Opposer, and that their differences led quickly to the end of their relationship. The evidence does not disclose a meeting of minds between the parties as to the formation of a joint venture. Rather, Opposer repeatedly testified that it was “my business.”37 And Applicant did not elect to testify. “Despite the fact that the parties have used the term ‘joint venture,’ this does not mean that a joint venture was created in the legal sense of that term, and for the reasons discussed, we find that it was not.” Reflange v. R-Con, 17 USPQ2d at 1130; see also Hoyle Knitting Mills v. T.J. Manalo, 12 USPQ2d at 1727 (elements of joint venture unproven).38 In sum, under either theory of the parties’ relationship, and upon consideration of all of the record evidence, Applicant has not overcome the 36 Burton dep. 17:25-18:22, 9 TTABVUE 21-22. 37 Burton dep. 10:17, 11:4, 28:4, 9 TTABVUE 14, 15, 32. 38 Furthermore, even if the evidence had established the existence of a joint venture (which it has not), that would not render Applicant the sole owner of the mark. See Conolty v. Conolty O’Connor NYC LLC, 111 USPQ2d 1302, 1308-09 (TTAB 2014). Opposition No. 91227749 - 16 - presumption in favor of the manufacturer, nor has she established that there was a joint venture. C. Abandonment Applicant’s “abandonment” theory is similarly unavailing. In her brief, Applicant argues that the dissolution of the supposed joint venture, coupled with Opposer’s testimony that “I have sold nothing since July 23rd,”39 meant that Opposer had abandoned the mark, leaving Applicant free to claim it.40 Opposer responds that “Applicant did not raise the issue through her Answer to the Opposition and there is no evidence to support the defense in the record.”41 We agree with Opposer. A defendant’s claim that a common law mark has been abandoned is in the nature of an affirmative defense. See, e.g. Azeka Bldg. Corp. v. Azeka, 122 USPQ2d 1477, 1485 (TTAB 2017); Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180 (TTAB 2017). Applicant’s Answer consisted of nothing more than denials of the claims in the Notice of Opposition.42 Abandonment was neither pleaded nor tried, expressly or implicitly, by the parties. See generally TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 314 (June 2017) (“Except as provided in Fed. R. Civ. P. 12(b) and (h)(2) (which allow a defendant to raise certain specified defenses by motion), a defendant may not rely on an unpleaded defense unless the defendant’s pleading is amended (or deemed amended), 39 Burton dep. 20:13-14, 9 TTABVUE 24. 40 Applicant’s brief, 13 TTABVUE 4. 41 Opposer’s reply brief, 14 TTABVUE 2. 42 4 TTABVUE. Opposition No. 91227749 - 17 - pursuant to Fed. R. Civ. P. 15(a) or 15(b), to assert the matter.)”. In view thereof, no consideration has been given to Applicant’s allegation, raised in her brief on the case, of abandonment. See West Florida Seafood Inc., v. Jet Restaurants Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1666 (Fed. Cir. 1994); Colony Foods, Inc. v. Sagemark, Ltd., 735 F.2d 1336, 222 USPQ 185, 187 (Fed. Cir. 1984) (abandonment issue not tried; motion to amend claims after filing of briefs properly denied); Hilson Research Inc. v. Society for Human Resource Mgmt., 27 USPQ2d 1423, 1439-40 (TTAB 1993) (issue of abandonment neither pleaded nor tried). Furthermore, for the sake of completeness, we agree with Opposer that the evidence falls short of proving her abandonment of the mark. Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides in relevant part that a mark shall be deemed to be abandoned “[w]hen its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment.” There are two elements to a nonuse abandonment claim: nonuse of the mark and intent not to resume use. Exec. Coach Builders v. SPV Coach, 123 USPQ2d at 1180; Azeka Bldg. Corp. v. Azeka, 122 USPQ2d at 1485. Since abandonment is a question of fact, the party claiming that a mark has been abandoned must prove these elements. See FirstHealth of Carolinas, Inc. v. CareFirst of Maryland, Inc., 479 F.3d 825, 81 USPQ2d 1919, 1922 (Fed. Cir. 2007); Quality Candy Shoppes/Buddy Squirrel of Wisconsin, Inc. v. Grande Foods, 90 USPQ2d 1389, 1393 (TTAB 2007). In this case, Opposer’s statement that “I have sold nothing since July 23rd” 2015 Opposition No. 91227749 - 18 - was elicited at her testimonial deposition, taken on April 14, 2017.43 That period of time, less than two years, fails to establish nonuse for three consecutive years, which is the statutory standard for prima facie evidence of abandonment. 15 U.S.C. § 1127. Applicant introduced no evidence of nonuse beyond that point. Moreover, Opposer’s statement quoted above should be taken in context. She was asked on cross- examination: Q. So, what did you do with those bags that you stitched with her [Applicant’s] materials? A. [after objection] I did nothing with them. I still have all of her supplies. They’re in inventory at my shop. Q. Okay. A. I have sold nothing since July 23rd. Q. Okay. Of what year? A. 2015. … I also told her I was keeping the name on July 23rd.44 Opposer testified further, “I told her that I was going to continue making purses under the name because it was my business.”45 That testimony fails to evidence a cessation of use with intent not to resume, leaving the mark abandoned for Applicant to claim as her own. As Professor McCarthy puts it, “It is not the law that ‘the 43 9 TTABVUE 4. 44 Burton dep. 20: 4-21, 9 TTABVUE 24. 45 Burton dep. 11:2-4, 9 TTABVUE 15. Opposition No. 91227749 - 19 - slightest cessation of use causes a trademark to roll free, like a fumbled football, so that it may be pounced on by any alert opponent.’” 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 17:14 (5th ed. March 2018) (quoting Continental Distilling Corp. v. Old Charter Distillery Co., 188 F.2d 614, 87 USPQ 365, 369 (D.C.Cir. 1950)). For these reasons, Applicant’s abandonment theory fails. V. Conclusion Accordingly, we find by a preponderance of the evidence that Applicant was not the owner of the BOOTIQUE ENVIE mark when she filed the subject application, and the application is consequently void ab initio. Decision: The opposition is sustained and registration to Applicant is refused. Taylor, J., concurring. I concur with the result reached by the majority that Applicant has not demonstrated that she is the sole owner of the BOOTIQUE ENVIE mark and accordingly the application is void ab initio. However, I disagree with some of the majority’s analysis, particularly as it relates to the purported business relationship between the parties. In particular, the majority, relying on the factors set forth in Uveritech, 115 USPQ2d at 1249, analyzes the sparse facts of this case, categorizing the parties’ relationship as one of manufacturer and distributor, Opposer being the manufacturer and Applicant the distributor, albeit one who “attempts to develop the parties’ business relationship into something more than manufacturer/distributor.” It is my view that Applicant’s role in the parties’ business relationship cannot be ascertained from the facts in evidence. Opposition No. 91227749 - 20 - As the majority correctly points out, Opposer originally developed an unnamed business redesigning old boots into one of a kind purses and handbags. Applicant subsequently was brought into the business as a “good source for selling the purses.” The record, however, shows that Applicant’s involvement in the business was not limited to selling – a traditional role of a distributor, “distributor” being defined as “[o]ne that markets or sells merchandise, especially a wholesaler,” in The American Heritage Dictionary of the English Language.46 Rather, Applicant participated in the adoption of the BOOTIQUE ENVIE mark, provided raw materials at no cost to Opposer,47 commissioned the creation of brass halter tags bearing the BOOTIQUE ENVIE mark for placement on the goods, and sought to expand the business into boutiques. These activities lead me to believe that Applicant’s role was not that of a mere distributor. Indeed, the majority recognizes the apparent “no meeting of the minds” with respect to each party’s role in the business. Turning then to the Uveritech factors, I believe that the majority’s findings with regard to factors (4) and (6) are tenuous, at best. While Opposer was the creative force in the relationship, nothing in the record confirms or, for that matter, disavows that Opposer was the sole party to whom customers could voice their complaints regarding 46 https://www.ahdictionary.com/word/search.html?. The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). 47 In this regard, Opposer testified as follows: “Well things were going fine at first. I was producing the purses, [Applicant] was buying the boots and giving them to me.” 9 TTABVUE 13. Opposition No. 91227749 - 21 - the goods, or the sole party looked to as the source of origin for the goods. As regards to factor (3), just because Opposer was the creative component in the parties’ undefined business relationship, that does not lessen the contributions made by Applicant in furtherance of the overall business objectives. Under these circumstances, I cannot say that Opposer has shown that a manufacturer/distributor relationship, as contemplated by Uveritech, existed between the parties.