Major League Soccer, L.L.C.v.F.C. Internazionale Milano S.p.A.

Trademark Trial and Appeal Board

Dec 9, 2020

91247160 (T.T.A.B. Dec. 9, 2020)

December 9, 2020

Opposition No. 91247160

Major League Soccer, L.L.C.

v.
F.C. Internazionale Milano S.p.A.

Before Wellington, Kuczma and Johnson, Administrative Trademark
Judges.

Opinion by Wellington:

This case now comes before the Board for consideration of Applicant’s February 3,
2020, motion to dismiss, under Fed. R. Civ. P. 12(b)(6), Opposer’s Second Amended
Notice of Opposition, in part, for failure to state a claim upon which relief may be
granted as to Opposer’s likelihood of confusion claim. The motion, which is the third
motion to dismiss that Applicant has filed in this case, is fully briefed.
I. Background
We begin by summarizing some proceeding history in order to place the instant
motion to dismiss in context.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
THIS ORDER IS A
PRECEDENT OF THE
TTAB
Opposition No. 91247160

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Applicant is a professional soccer club based in Milan, Italy.1 Applicant seeks
registration of the mark INTER, in standard character format, for goods and services
in seven International Classes, including:
“entertainment services, namely, organizing, conducting, and staging
professional soccer games and exhibitions and production of radio and
television programs in the nature of professional soccer games and
exhibitions” in International Class 41.2

Opposer timely filed a Notice of Opposition to registration of Applicant’s mark
asserting two grounds: one under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e),
alleging that Applicant’s mark is merely descriptive of the identified goods and
services; and based on a claim under Trademark Act Section 2(d), 15 U.S.C. § 1052(d),
based on priority and likelihood of confusion with its alleged INTER mark.3
Applicant moved to dismiss the claim under section 2(d).4 This first motion argued
that Opposer had not pleaded prior rights in its alleged INTER mark because the
Notice of Opposition did not claim common law rights that would give Opposer
priority and Opposer’s intent-to-use application―which the Notice of Opposition
alleged was being filed by Opposer in connection with a new professional Miami-

1 See 1 TTABVUE ¶ 3 (Notice of Opposition); 4 TTABVUE ¶ 3 (Answer).
2 Application Serial No. 86224449, filed March 18, 2014, based on Applicant’s claimed bona
fide intent to use the mark in commerce under Trademark Act § 1(b), 15 U.S.C. § 1051(b).
Aside from the services, recited supra, the application covers goods in Classes 9, 18, 21, 24,
25, and 28.
3 1 TTABVUE (original Notice of Opposition). Although the Notice of Opposition has been
amended twice since the original filing, the salient claims remain under §§ 2(d) & 2(e)(1). See
9 TTABVUE (first amended Notice of Opposition); and 18 TTABVUE (second amended Notice
of Opposition).
4 5 TTABVUE.
Opposition No. 91247160

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based team in Opposer’s league5―was filed after Applicant’s.6 Opposer filed a
memorandum in opposition arguing against dismissal, but, simultaneously, and with
Applicant’s consent,7 filed an Amended Notice of Opposition.8 Opposer’s
memorandum in opposition pointed out that the Amended Notice of Opposition
alleged that Opposer was basing its section 2(d) claim on the alleged prior use of
INTER in the U.S. by third-party soccer clubs or organizations (not the proposed
Miami-based club in Opposer’s league).9 Due to the filing on consent of the Amended
Notice of Opposition, we deemed the first motion to dismiss moot.10
Applicant then filed another motion to dismiss. This second motion to dismiss
again targeted the section 2(d) claim in the Amended Notice of Opposition, arguing
that Opposer’s reliance on prior use of the mark by third-party soccer clubs to
demonstrate priority was an insufficient basis for Opposer’s section 2(d) claim where
there was no indication that Opposer had any connection with those third-party
soccer clubs or their use of the mark.11
On January 3, 2020, the Board issued an order (“Prior Order”) granting
Applicant’s second motion to dismiss the section 2(d) claim in the Amended Notice of

5 1 TTABVUE ¶¶ 2-7.
6 Id.
7 7 TTABVUE.
8 9 TTABVUE.
9 9 TTABVUE 2-7.
10 10 TTABVUE.
11 12 TTABVUE 5-6. Applicant argued that the Amended Notice of Opposition alleged only
that the prior use of the INTER mark by four third-party soccer clubs resulted in the failure
of U.S. consumers to associate the mark with any one exclusive source. Id. at 4.
Opposition No. 91247160

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Opposition.12 Specifically, the Board held that Opposer did not sufficiently plead
allegations that “reveal any particular relationship between [Opposer] and the third
party users” or “any claims to suggest that its responsibilities as a professional soccer
league encompass the interests of the third party users.”13 But the Board allowed
Opposer an opportunity to replead its section 2(d) claim.14 Opposer filed a Second
Amended Notice of Opposition, which is now the operative complaint before us.15
II. Motion to Dismiss Section 2(d) Likelihood of Confusion Claim
Applicant has timely filed a third motion to dismiss, which is presently before us.16
Again, and as with the second motion to dismiss, Applicant moves to dismiss the
Second Amended Notice of Opposition, in part, for failure to state a claim upon which
relief may be granted under Fed. R. Civ. P. 12(b)(6) as to Opposer’s section 2(d)
likelihood of confusion claim.
A. Parties’ Arguments
Applicant argues that “Opposer’s claim again fails as a matter of law because it
again relies on third party marks without any assertion of Opposer’s use of the third
party marks, or any assertion of privity with the third parties, or otherwise any

12 16 TTABVUE (Prior Order), involving Opposer’s first amended Notice of Opposition (9
TTABVUE).
13 16 TTABVUE 11.
14 Id.
15 18 TTABVUE.
16 19 TTABVUE.
Opposition No. 91247160

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assertion of a direct and substantive connection with any of the third parties or their
marks.”17
Opposer asserts in response that “Opposer’s Second Amended Notice of Opposition
adds facts showing that [Opposer] MLS does have a relationship to the soccer
industry in the United States in general, and in particular to the third-party owners
of INTER-formative marks that are prior in time to the filing date of the instant
application (the application is an intent-to-use application) that are sufficient to
support a claim under Section 2(d).”18 In particular, Opposer relies on the following
allegations in the Notice of Opposition, as amended:
14. Specific uses of “INTER” by soccer clubs in the United States
antedating the filing of the INTER Application and currently continuing
are:

a. INTER Soccer Association, a/k/a International Soccer
Association, believed to have been in use beginning not later than
1999.

b. Chicago International Soccer Club, d/b/a Chicago INTER Soccer
Club, believed to have been in use beginning not later than 2006.

c. INTER Atlanta F.C., believed to have been in use beginning not
later than 2013.

17 Id. at 2.
18 21 TTABVUE 3. Opposer also argues that it “has standing to claim likelihood of confusion
and its position in the U.S. soccer industry gives it the right to claim likelihood of confusion.”
Id. at 9. We now refer to standing as an entitlement to a statutory cause of action. See
Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388 (TTAB 2020);
see also Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020);
Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d
10837 (Fed. Cir.) (discussing entitlement to bring a cause of action), reh’g en banc denied
(Dec. 4, 2020). As already determined in the Board’s January 3, 2020, Prior Order, see 16
TTABVUE 4-6, Opposer is entitled to a statutory cause of action in this opposition. The
relevant question before us now is the sufficiency of the Section 2(d) claim, not standing.
Opposition No. 91247160

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d. INTERCounty Youth Soccer League, believed to have been in
use beginning not later than 2013.

e. Inter-County Youth Soccer League, which is believed to have
been in use since 1960, and which fields over 800 teams in Eastern
Pennsylvania.

These five users of INTER are referred to as the “prior U.S. INTER users.”

15. MLS has an interest in preventing confusion or mistake between
“INTER” and the aforesaid marks used by the prior U.S. INTER users, and
has substantial reasons for fearing damage to itself and its member clubs
if “INTER” is registered. Any confusion that would arise with the aforesaid
marks would affect MLS adversely.

16. MLS draws both soccer fans and soccer players from its relationships
with the youth and amateur soccer teams and leagues and the lower tier
professional soccer teams and leagues, of which the prior U.S. INTER users
are part.

17. Four of the prior U.S. INTER users are youth soccer organizations.
MLS is deeply involved in the development of youth soccer clubs, both as
sources of MLS fans and future professional soccer players. MLS requires
its member teams to operate youth soccer academies. MLS is one of four
strategic growth partners working to support the U.S. Soccer Foundation’s
goal to build 1,000 mini-pitches and engage 1 million kids in Soccer for
Success programming by 2026. MLS has a standing and legally binding
partnerships with all official U.S. Soccer-sanctioned Youth and Adult
recreational membership organizations:

 American Youth Soccer Organization

 SAY Soccer (Soccer Association for Youth)

 U.S. Youth Soccer Association

 U.S. Club Soccer

 U.S. Adult Soccer Association

These partnerships cover general coordination, collaboration, and
cooperation, in addition to specific rights and benefits for both parties
including partnership designation, intellectual property, database and
other marketing assets, ticket/event access and other ad hoc initiatives.
Opposition No. 91247160

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18. The Chicago INTER Soccer Club is a youth soccer club. Its teams
participate in the United States Youth National League, its Midwest
Conference, Illinois Women’s Soccer League, Young Sportsmen’s Soccer
League, Central Illinois Youth Soccer League, US Youth National League
Showcase’s, and Players’ College Showcase in Las Vegas, all of which are
associated with or are sub-organizations of U.S. Youth Soccer Association,
with which MLS has a partnership. In 2014, as part of MLS’s outreach to
youth soccer, the Chicago Fire, a MLS member club, held a group sales
night with Chicago INTER Soccer Club, inviting Chicago INTER Soccer
Club and associated people to a Chicago Fire game at reduced prices.

19. INTER Atlanta F.C. provides recreational, developmental and
competitive soccer leagues for boys and girls near downtown Atlanta. It is
a member of Georgia Soccer and a National Soccer Coaches Association of
America Premier Level Club, the former being associated with U.S. Youth
Soccer Association. In August, 2019, INTER Atlanta F.C. participated in a
“Watch Party Event” with MLS’s Atlanta United FC’s recognized supporter
group, The Faction.

20. INTER Soccer Association competes in the United Premier Soccer
League, a U.S. professional development soccer league. Teams from United
Premier Soccer League compete along with teams from MLS annually in
the Lamar Hunt U.S. Open Cup, the oldest annual soccer competition in
the United States. Fourteen teams from the United Premier Soccer League
competing in the 2019 competition. MLS is intimately involved in the
Lamar Hunt U.S. Open Cup, with all of its teams competing in the 2019
competition. Soccer United Marketing, the marketing arm of MLS,
represents the Lamar Hunt U.S. Open Cup for commercial marketing as
part of its representation of the United States Soccer Federation, soccer’s
governing body in the United States.

21. MLS is also deeply involved with the lower tier professional leagues.
There is overlapping membership between MLS and its teams and several
of the lower tier professional leagues. Several clubs in the United Soccer
League (USL) are affiliated with MLS clubs.

22. MLS’s involvement in all levels of soccer in the United States, in youth
development, youth education and community programs, including its
social responsibility platform MLS WORKS, its diversity program Soccer
For All, and its anti-bullying program MLS Actions Matter, position MLS
to protect the interests of soccer clubs using INTER in their names prior to
Applicant’s filing and to prevent the public from mistakenly believing that
there is a connection between any of the prior U.S. INTER users and
Opposition No. 91247160

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Applicant or the INTER Application, or that Applicant has exclusive rights
to the term INTER.

As noted in the Prior Order, and worth repeating here, Opposer pleads ownership
of several later-filed applications for marks containing the term INTER. However,
Opposer does not allege prior use of the marks in those applications or assert that its
rights in those marks serve as bases for its likelihood of confusion claim.
B. Analysis
The parties have discussed in their briefs the ramifications and relevance of the
Federal Circuit’s decision in Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823
F.2d 490, 2 USPQ2d 2021 (Fed. Cir. 1987) (“Jewelers Vigilance I”), as well as a second
Federal Circuit decision (an appeal on the merits) in the same matter, Jewelers
Vigilance Comm., Inc. v. Ullenberg Corp., 853 F.2d 888, 7 USPQ2d 1628 (Fed. Cir.
1988) (“Jewelers Vigilance II”), and the Board’s later decision in Holmes Prods. Corp.
v. Duracraft Corp., 30 USPQ2d 1549 (TTAB 1994). We agree that these three
decisions, which concern claimants asserting trademark rights via third parties, are
most relevant to the instant motion. In Holmes, we held that the opposer had not
asserted a legitimate interest in the third-party marks; in the Jewelers Vigilance
decisions, the opposer demonstrated such a legitimate interest. As explained below,
this proceeding presents another fact pattern that, like Holmes, does not assert a
legitimate interest upon which Opposer may rely for priority purposes.
As a general matter, to withstand an applicant’s motion to dismiss for failure to
state a claim upon which relief can be granted, an opposer need only allege sufficient
factual matter that, if proven, would allow the Board to conclude a likelihood of
Opposition No. 91247160

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confusion exists. Doyle v. Al Johnson’s Swed. Rest. & Butik Inc., 101 USPQ2d 1780,
1782 (TTAB 2012) (citing Young v. AGB Corp., 152 F.3d 1377, 47 USPQ2d 1752, 1754
(Fed. Cir. 1998)); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 503.02 (June 2020). The Board generally has held that in order
to set forth a valid ground for opposition under Section 2(d) and withstand a motion
to dismiss for failure to state a claim, an opposer need only allege that (1) it has valid
proprietary rights in a mark that are prior to those of the applicant, or that it owns a
registration, and (2) the applicant’s mark so resembles the opposer’s mark as to be
likely to cause confusion. Nike, Inc. v. Palm Beach Crossfit Inc., 116 USPQ2d 1025,
1030 (TTAB 2015). See also Lanham Act § 2(d), 15 U.S.C. § 1052(d); Otto Roth & Co.
v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981).
However, the Board has also recognized that a plaintiff’s “proprietary interest”
need not be present if the plaintiff alleges some other “legitimate interest” in
preventing a likelihood of confusion between the pleaded mark on which it predicates
the Section 2(d) claim. See Holmes, 30 USPQ2d at 1552, citing to the Jewelers
Vigilance I and Jewelers Vigilance II decisions. This legitimate interest, if pleaded,
could serve as part of a proper ground for likelihood of confusion in lieu of a claim of
one’s own prior proprietary rights in a conflicting mark. In the Jewelers Vigilance
litigation, the opposer was deemed to have a sufficient interest in the mark used by
the third parties because it was a trade organization whose thousands of U.S.
members had previously used (and continued to use) a term (DEBEERS) in the mark
Opposition No. 91247160

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at issue. 7 USPQ2d at 1629, 1631.19 In Holmes, by contrast, the opposer was a
corporation and could not show either privity with the third parties whose
registrations on which it relied, or any other legitimate legal or equitable interest in
the registered marks, as the basis for its section 2(d) claim. 30 USPQ2d at 1550, 1552.
Here, Opposer does not claim a prior proprietary interest in the pleaded marks
nor does Opposer claim privity with the entities that own those marks.20 Thus, the
question here narrows down to whether Opposer in this case has a “legitimate
interest” in preventing a likelihood of confusion with the pleaded marks owned by the
third parties, as that term was contemplated in Holmes and in accordance with the
Jewelers Vigilance I and Jewelers Vigilance II decisions.
The circumstances involving the opposer in Holmes are similar to those of Opposer
here to the extent that the opposer there did not have proprietary rights in any of the
pleaded conflicting marks (containing the term TURBO) nor was the opposer in
privity with the third parties that did. The Board held that the opposer in Holmes did
not demonstrate that it, a corporation, had demonstrated any legitimate interest in
the other corporations’ trademark use of the term at issue. 30 USPQ2d at 1552.

19 Specifically, the opposer was a nonprofit jewelry trade association representing 2500 firms
in the United States, including suppliers, wholesalers, distributors and retailers of diamonds
and diamond jewelry. Jewelers Vigilance I, 2 USPQ2d at 2022.
20 “In the field of trademarks, the concept of privity generally includes, inter alia, the
relationship of successive ownership of a mark (e.g., assignor, assignee) and the relationship
of ‘related companies’ within the meaning of Trademark Act § 5 and Trademark Act § 45, 15
U.S.C. § 1055 and 15 U.S.C. § 1127.” TBMP § 206.02; see also TBMP § 303.05(b) (“Opposition
Filed by Privy”).
Opposition No. 91247160

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The Board in Holmes acknowledged the prior Jewelers Vigilance I and Jewelers
Vigilance II decisions, including the following language in the latter:
[T]he trade association [opposer] convincingly established that it was not
a mere intermeddler in asserting a claim predicated on a third party’s
name and had sound reasons for fearing damage to itself and its members
if [applicant’s] mark were registered. In sum, [opposer] asserted its own
claim which happened to involve the proprietary rights of a third party.

Holmes, 30 USPQ2d at 1552 (quoting Jewelers Vigilance II, 7 USPQ2d at 1631).
The Board in Holmes, in interpreting this language, cautioned:
[I]t would be inappropriate to read the language of the [Jewelers Vigilance
II] opinion so broadly. The statements must be read in the context of the
factual situation before the Court; and that factual situation included a
plaintiff which was able to establish its legitimate interest in preventing
likelihood of confusion. Specifically, the plaintiff’s interest was to see that
the continued use of the DEBEERS mark by its members was protected
against a potential claim by applicant, a junior user of the DEBEERS
mark, of a right to exclusive use of the DEBEERS mark and likelihood of
confusion.

Id. (emphasis added).

In particular, the Board in Holmes pointed out that, although the opposer in
Jewelers Vigilance was a “jewelry trade association [that] did not have proprietary
rights in the name DEBEERS, it had a connection with DBCM, the owner of the
name, such that any confusion that arose from the contemporaneous use by DBCM
of its name and by applicant of the mark DEBEERS was the same confusion that
would affect the association [the opposer].” Id. Ultimately, we decided in Holmes that
the opposer’s likelihood of confusion claim was “legally insufficient” because:
opposer has not asserted any legitimate interest in preventing likelihood
of confusion between applicant’s mark and the marks of the several
registrations which it pleaded in its notice of opposition. … Opposer has
not alleged that it has used the third-party TURBO marks. Nor has it
Opposition No. 91247160

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alleged any connection with these marks or with those who registered them
that would establish its legitimate interest in preventing likelihood of
confusion; and we hold that such a legitimate interest is a necessary
element of a ground of likelihood of confusion predicated on the third-party
registrations.
Id.
In this case, although Opposer is a professional soccer league comprising teams
located around the country, it has not sufficiently pleaded a “legitimate interest” in
avoiding a likelihood of confusion between Applicant’s mark and the pleaded third-
party marks. That is, Opposer’s interest in this proceeding does not rise to the level
of interest of the opposer in the Jewelers Vigilance proceedings. One major difference
in this proceeding from Jewelers Vigilance is that Opposer here is not seeking to
protect any prior proprietary rights of its member teams. In contrast, the opposer in
Jewelers Vigilance was a trade association seeking to protect use of the term
DEBEERS by its members and, through them, itself. Although Opposer pleads
ownership of several applications for marks containing the term INTER which have
been refused registration based on the involved application and these pleaded facts
help show Opposer is statutorily entitled to bring this opposition,21 it has not pleaded
a valid basis for the necessary element of priority with respect to Opposer’s applied-
for marks.
Opposer’s (or its member teams’) alleged relationship with the “prior U.S. INTER
users” identified in the Notice of Opposition is, at best, tangential. For example,

21 See Prior Order, 16 TTABVUE 4-6, acknowledging Opposer’s ownership of such
applications and their existence serving as a basis for Opposer’s entitlement to a statutory
cause of action.
Opposition No. 91247160

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Opposer alleges that it “draws both soccer fans and soccer players from its
relationships with the youth and amateur soccer teams and leagues and the lower
tier professional soccer teams and leagues, of which the prior U.S. INTER users are
part.” Opposer also alleges that some of the third parties are “youth soccer
organizations” and Opposer is “deeply involved in the development of youth soccer
clubs” and “requires its member teams to operate youth soccer academies.” These
alleged facts, taken as true for purposes of the motion before us, only reveal that
Opposer and the “prior U.S. INTER users” may draw the same fans and that some of
the players from the “prior U.S. INTER users” organizations may mature into players
for Opposer’s league. Such a general shared interest in the development of the sport
of soccer in this country does not demonstrate how Opposer itself or any of its
members would be detrimentally affected by the likelihood of confusion between
Applicant’s mark and those of third parties or prior U.S. INTER users.22
Thus, taking Opposer’s allegations in their entirety and presuming them to be
true, the described relationship between Opposer and the third parties that allegedly
have prior rights in the term INTER is too attenuated. Even though it may be in
Opposer’s best interest that Applicant not register its mark, that is not the same as
having a “legitimate interest” in protecting the third parties’ alleged marks from a
likelihood of confusion.23

22 To be clear, this case does not address the question of whether reliance on a league
member’s use would be sufficient.
23 We note that Holmes warned that loosening the required interest too much could result in
at least two troublesome scenarios: (1) a competitor’s ability “to harass the applicant simply
by searching the register and asserting the ground of likelihood of confusion based on any
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In sum, Opposer’s likelihood of confusion claim is legally insufficient because it
has not sufficiently alleged priority, i.e., its section 2(d) claim is not based on any
allegations of prior proprietary rights in a mark of Opposer and Opposer has not set
forth factual allegations that, all taken as true, constitute a legitimate interest in
preventing likelihood of confusion between Applicant’s mark and those of the “prior
U.S. INTER users.” Accordingly, Applicant’s motion to dismiss Opposer’s likelihood
of confusion claim in the amended Notice of Opposition is GRANTED. Specifically,
Paragraphs 15 and 28 are stricken from the Notice of Opposition, as amended.24 The
opposition goes forward solely on Opposer’s Trademark Act Section 2(e)(1)
descriptiveness claim.
III. Proceedings Resumed – Answer Due and Dates Reset
Proceedings are resumed. Respondent is allowed FIFTEEN DAYS from the
mailing date of this order to file and serve an Answer to the amended Notice of
Opposition, as restricted by this order, i.e., without answering Paragraphs 15 and 28.
Dates are otherwise reset as follows:
Expert Disclosures Due 2/18/2021
Discovery Closes 3/20/2021
Plaintiff's Pretrial Disclosures Due 5/4/2021

marks it happened to find there”; and (2) potentially unwarranted and prejudicial preclusive
effects on the rights of the third-parties in future litigation. See Holmes, 30 USPQ2d at 1552.
24 To the extent other paragraphs in the Notice of Opposition were intended to support the
(now dismissed) likelihood of confusion claim, we note they may also be intended as
amplification of Opposer’s descriptiveness claim. Thus, in an abundance of caution, they
remain in the amended complaint.
Opposition No. 91247160

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Plaintiff's 30-day Trial Period Ends 6/18/2021
Defendant's Pretrial Disclosures Due 7/3/2021
Defendant's 30-day Trial Period Ends 8/17/2021
Plaintiff's Rebuttal Disclosures Due 9/1/2021
Plaintiff's 15-day Rebuttal Period Ends 10/1/2021
Plaintiff's Opening Brief Due 11/30/2021
Defendant's Brief Due 12/30/2021
Plaintiff's Reply Brief Due 1/14/2022
Request for Oral Hearing (optional) Due 1/24/2022

The Federal Rules of Evidence generally apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
manner and timing of taking testimony, matters in evidence, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
final hearing will be scheduled only upon the timely submission of a separate notice
as allowed by Trademark Rule 2.129(a).
* * *