Melon Optics Limitedv.Love Your Melon Inc.

Trademark Trial and Appeal Board

Jan 27, 2021

91244439 (T.T.A.B. Jan. 27, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 27, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Melon Optics Limited

v.

Love Your Melon, Inc.
_____

Opposition No. 91244439

_____

Amanda Osorio of Revision Legal, PLLC
for Melon Optics Limited.

Z. Peter Sawicki and Amanda Prose of Westman, Champlin & Koehler, P.A.
for Love Your Melon Inc.
_____

Before Cataldo, Goodman and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Love Your Melon Inc. (“Applicant”) seeks registration on the Principal Register of
the mark MELON (in standard characters) for:
Tote bags; purses, in International Class 18;
Lanyards for holding keys and cards, in International Class 22; and
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Clothing, namely, beanies, tops, sweaters, sweatshirts, t-shirts,
long-sleeve shirts, tank tops, in International Class 25.1
In its Notice of Opposition,2 Melon Optics Limited (“Opposer”) opposes
registration of Applicant’s MELON mark under Trademark Act Section 2(d), 15
U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the goods
identified in the Application, so resembles Opposer’s common law MELON mark,
used in connection with “sunglasses, ski goggles, snow goggles, straps for goggles,
lenses for goggles, t-shirts, sweatshirts and hats”, as to be likely to cause confusion,
mistake, or to deceive.
Applicant denied the salient allegations of the Notice of Opposition in its Answer.3
In its Third Affirmative Defense (erroneously labeled as its Second Affirmative
Defense), Applicant alleges that Opposer’s “pleading[] fails to include enough detail
to provide Applicant with fair notice of the basis of each claim.” Applicant also says
that it “is at best only provided fair notice for the basis of [Opposer]’s [o]pposition to
the goods … ‘[c]lothing, namely, beanies, tops, sweaters, sweatshirts, t-shirts, long-
sleeve shirts, tank tops’ in International Class 25”, and that “[Opposer] … otherwise
provided no basis or detail to make a claim with respect to Applicant’s goods including

1 Application Serial No. 87195349 was filed on October 6, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Trademark Act Section
1(b), 15 U.S.C. §1051(b).
2 1 TTABVUE. References to the pleadings, the evidence of record and the parties’ briefs refer
to the Board’s TTABVUE docket system. Coming before the designation TTABVUE is the
docket entry number; and coming after this designation are the page and paragraph
references, if applicable.
3 Answer, 4 TTABVUE.
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tote bags; purses in International Class 18 or lanyards for holding keys and cards in
International Class 22 (the ‘Non-plead Goods’).4
On the basis of this Third Affirmative Defense, Applicant moved to strike the
allegations contained in the Notice of Opposition with respect to Applicant’s goods in
International Classes 18 and 22.5 In its Order of February 12, 2019, the Board
granted Applicant’s motion to strike, stating “[t]he Notice of Opposition goes forward
only as to Opposer’s claim of likelihood of confusion [in connection] with the
International Class 25 goods in the opposed application.” Applicant did not pursue its
First or Second Affirmative Defenses, either by submitting evidence during trial or
by assertion of arguments in its brief. Applicant therefore has forfeited these
defenses.6
The case is fully briefed. Opposer bears the burden of proving its Trademark Act
Section 2(d) claim by a preponderance of the evidence. See Jansen Enters., Inc. v.
Rind, 85 USPQ2d 1104, 1107 (TTAB 2007). Having considered the evidentiary record,

4 Id. at 6-7. ¶¶ 33, 39-40.
5 Id. at 8-10.
6 In re Google Tech. Holdings LLC, 980 F.3d 858, 2020 USPQ2d 11465, at *3-4 (Fed. Cir.
2020) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’”) (citing United States v.
Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
See Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1422-23 n.7 (TTAB
2014) (“[D]efenses … not pursued … are deemed … [forfeited].”); Alcatraz Media v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB 2013), aff'd mem., 565 F.
App’x 900 (Fed. Cir. 2014) (“[A]s respondent neither filed a formal motion to dismiss … [as to
this affirmative defense] during the interlocutory phase of this proceeding, nor argued this
asserted affirmative defense in its brief, it is hereby deemed … [forfeited].”).

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the parties’ arguments and applicable authorities, as explained below, we find that
Opposer has not carried this burden, and dismiss the Opposition.
I. The Evidentiary Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s involved application. In addition, the
parties introduced the following evidence:
A. Opposer’s Evidence
 Opposer’s Notice of Reliance (“Opp NoR”) upon the file histories of Opposer’s
Application (Ser. No. 87716316) to register the mark MELON and Applicant’s
Application (Serial No. 87195349) to register the mark MELON (12
TTABVUE).7
 Opposer’s “Re-Submitted” Testimony Declaration of James Pointer (“Pointer
Decl.”), with exhibits (15 TTABVUE).8
B. Applicant’s Evidence
 Applicant’s Testimony Declaration of Zachary Quinn (“Quinn Decl.”) (16
TTABVUE).
II. Evidentiary Issue
Before proceeding to the merits of the opposition, we address Applicant’s Motion9
to strike exhibits attached to Opposer’s Rebuttal Brief.10 The exhibits comprise the
WhoIs record for Opposer’s domain name MelonOptics.com, and the ownership

7 As noted, because the file history for Applicant’s MELON Application is automatically of
record pursuant to Trademark Rule 2.122(b), making this file history of record with Opposer’s
Notice of Reliance was unnecessary.
8 As noted by the Board’s Order (14 TTABVUE), Mr. Pointer’s originally-submitted
Declaration (13 TTABVUE) did not meet the Board’s filing criteria. The Board required
Opposer to refile and serve a corrected submission, in its entirety, before it would be
considered.
9 Motion to Strike, 20 TTABVUE.
10 Applicant’s Rebuttal Brief, 19 TTABVUE 22-28.
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history for this domain name from 2013 to 2017. Opposer “requests that the Board
take judicial notice of the publicly available WhoIs Records for www.melonoptics.com
… which show that Mr. Melvin Pointer, owner of Melon Optics, created and registered
the www.melonoptics.com domain in August of 2013.”11 As further discussed below,
with this WhoIs evidence Opposer seeks to bolster its argument of trademark priority
over Applicant’s application filing date of October 6, 2016.
Applicant asserts that the exhibits attached to Opposer’s Rebuttal Brief “can be
given no consideration as they were not properly made of record during the time for
taking testimony.”12 See, e.g., Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 10020,
at *2 (TTAB 2020) (exhibits attached to brief not considered); Norris v. PAVE:
Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *2 (TTAB
2019) (inserted screenshots and hypertext link within the text of reply brief, if not
previously and properly introduced into the record, not considered).
Opposer contends that the WhoIs records attached to its Rebuttal Brief should be
accepted into evidence as “judicially noticed facts … [that are] publicly well supported
and not reasonably disputed pursuant to Fed. R. Evid. 201.”13 Hard Rock Café
Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1405, 1998 TTAB LEXIS 124, at *14-15
(TTAB 1998) (exhibits evidencing dictionary definitions of relevant words are subject
to judicial notice even if considered “untimely” by standard exhibit requirements).

11 Applicant’s Rebuttal Brief, 19 TTABVUE 16.
12 Motion to Strike, 20 TTABVUE 2.
13 Opposition to Motion to Strike, 21 TTABVUE 2.
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We grant Applicant’s motion to strike. “A brief may not be used as a vehicle for
the introduction of evidence. ... The Board will not consider evidence and other
evidentiary materials attached to the briefs unless they were properly made of record
during the time assigned for taking testimony.” Hole In 1 Drinks, 2020 USPQ2d
10020, at *2 (exhibits attached to brief not considered) (internal citations and quote
marks omitted).
We decline Opposer’s invitation to accept the WhoIs records by judicial notice. The
only kind of fact that may be judicially noticed by the Board is a fact that is “not
subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). WhoIs domain name ownership records do not fit into either
category. They are neither generally known within the Board nor capable without
question of accurate and ready determination by resort to the exhibits Opposer
provided.
Further, WhoIs records are unlike materials of which the Board regularly takes
judicial notice, such as dictionary definitions, UMG Recordings Inc. v. Matte, Inc., 100
USPQ2d 1868, 1874, 1879 n.12 (TTAB 2011), and census data. Ricardo Media Inc. v.
Inventive Software, LLC, 2019 USPQ2d 311355, at *7 n.9 (TTAB 2019).
Finally, even were we to consider Opposer’s WhoIs records, they would be afforded
low probative value. Assuming, arguendo, that Opposer conclusively demonstrated
its registration of the melonoptics.com domain name prior to Applicant’s application
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filing date, this does not show operation of the www.melonoptics.com website at any
point in time, much less illustrate the availability of MELON branded clothing
products on this website at any time. See Brookfield Commc’ns, Inc. v. W. Coast Ent.
Corp., 174 F.3d 1036, 50 USPQ2d 1545, 1555 (9th Cir. 1999) (“Registration [of a
domain name] with [domain name registrar] Network Solutions, however, does not
in itself constitute ‘use’ for purposes of acquiring trademark priority.”). We therefore
do not consider the WhoIs records attached to Opposer’s Rebuttal Brief.
III. The Parties
Opposer is a company incorporated in the United Kingdom. Its chief products are
customized eyewear, particularly sunglasses and sport goggles for use in extreme
sports such as snow skiing, snowboarding, and biking. Opposer also has created a
range of apparel and accessory product lines to support its brand.14 Applicant is a
Minnesota corporation. Its products comprise outerwear, such as sweatshirts, hats,
scarves, mittens and other apparel items for use during cold weather activities,
winter recreation activities and sports such as skiing.15
IV. Entitlement to Bring and Maintain a Statutory Cause of Action
To establish entitlement to bring and maintain a statutory cause of action under
Trademark Act Section 13, 15 U.S.C., § 1063, a plaintiff must demonstrate “an
interest falling within the zone of interests protected by the statute and … proximate
causation.” Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at *4

14 Pointer Decl., 15 TTABVUE 2-3, ¶¶ 2-4, 8.
15 Quinn Decl., TTABVUE 7- 8, 10-14.
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(Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 109 USPQ2d 2061, 2067-70 (2014)).16 Stated another way, a plaintiff is
entitled to bring and maintain a statutory cause of action by demonstrating a real
interest in the proceeding and a reasonable belief of damage. Australian Therapeutic
Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed.
Cir. 2020); see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270,
111 USPQ2d 1058, 1062 (Fed. Cir. 2014). According to the Court of Appeals for the
Federal Circuit, there is “no meaningful, substantive difference between the
analytical frameworks expressed in Lexmark and Empresa Cubana.” Corcamore,
2020 USPQ2d 11277 at *4. Thus, “a party that demonstrates a real interest in
[opposing registration of] … a trademark under [Trademark Act Section 13, 15
U.S.C.] § 106[3] has demonstrated an interest falling within the zone of interests
protected by [the Trademark Act]. … Similarly, a party that demonstrates a
reasonable belief of damage by the registration of a trademark demonstrates
proximate causation within the context of § 106[3]. Corcamore, 2020 USPQ2d 11277
at *7.
Entitlement to bring and maintain a statutory cause of action is demonstrated,
for example, where the plaintiff pleads its belief that it is likely to be damaged by
registration of an applicant’s mark based on a claim of likelihood of confusion that is

16 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this
inquiry as entitlement to bring and maintain a statutory cause of action. Despite the change
in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections
13 and 14 remain equally applicable.
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not wholly without merit (even if likelihood of confusion is ultimately not found). See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000). This would include such a claim based upon prior use of a confusingly similar
mark. Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *4 (TTAB
2019) (entitlement to bring and maintain likelihood of confusion claim established, in
part, by testimony with exhibits of earlier use of confusingly similar mark).
Here, we find that Opposer’s allegations in the Notice of Opposition sufficiently
plead its belief of damage by registration of Applicant’s MELON mark based on a
claim of likelihood of confusion that is not wholly without merit.
Opposer’s entitlement to bring and maintain a statutory cause of action moreover is
derived from its demonstrated position as a competitor of Applicant and its
reasonable belief in a likelihood of confusion between Opposer’s MELON mark and
Applicant’s MELON mark in connection with clothing items. See, e.g., Books on Tape,
Inc. v. Booktape Corp., 836 F.2d 519, 5 USPQ2d 1301, 1302 (Fed. Cir.
1987) (competitor demonstrates its entitlement to bring and maintain a statutory
cause of action because it has an interest in the outcome beyond that of the general
public); Grote Indus., Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1201-2 (TTAB
2018) (same).
Opposer further pleaded and made evidence of record that action on its pending
MELON trademark application was suspended in view of Applicant’s earlier-filed
MELON application.17 See Australian Therapeutic, 2020 USPQ2d 10837, at *4 (“A

17 Notice of Opposition, 1 TTABVUE 4, ¶ 9, Opp NoR, 12 TTABVUE 9-11, 24-31.
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petitioner may demonstrate a real interest and reasonable belief of damage where
the petitioner has filed a trademark application that is refused registration based on
a likelihood of confusion with the mark subject to cancellation.”). Opposer thus has
proven its entitlement to bring and maintain this Opposition under Trademark Act
Section 2(d).
V. Priority
Section 2(d) of the Trademark Act permits an opposer to file an opposition on the
basis of ownership of “a mark or trade name previously used in the United States ...
and not abandoned.” 15 U.S.C. § 1052(d); see also Trademark Act Section 13, 15
U.S.C. § 1065. A party opposing an application for registration under Trademark Act
Section 2(d) must prove that it has prior proprietary rights in the term on which it
relies to demonstrate likelihood of confusion as to source. Otto Roth & Co. v. Universal
Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981). “To establish priority,
the mark must be distinctive, inherently or otherwise,18 and Opposer must show
proprietary rights in a mark as to which Applicant’s mark gives rise to a likelihood of
confusion.” DeVivo v. Ortiz, 2020 USPQ2d 10153, *3 (TTAB 2020) (citing Otto Roth,
209 USPQ at 43-45). “These proprietary rights may arise from a prior registration,
prior trademark or service mark use, prior use as a trade name, prior use analogous
to trademark or service mark use, or any other use sufficient to establish proprietary
rights.” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,

18 Neither party claims or presents evidence that the MELON mark lacks distinctiveness for
clothing products, and we find the mark to be inherently distinctive for such goods.
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1378 (Fed. Cir. 2002). “[W]ithout proof of priority, [an] opposer [asserting a Section
2(d) claim] cannot prevail.” Syngenta Crop Protection, Inc. v. Bio-Chek, LLC, 90
USPQ2d 1112, 1119 (TTAB 2009).
The earliest priority date on which Applicant can rely is the October 6, 2016 filing
date of its intent-to-use MELON application. Compagnie Gervais Danone v. Precision
Formulations, LLC, 89 USPQ2d 1251, 1253 (TTAB 2009) (“A party that has filed an
intent-to-use application may rely on the filing date of its application to establish
priority.”). Applicant did not make of record any evidence showing use of the MELON
mark in commerce before this date.19 As Applicant further states in its brief: (1) “[its]
… Application … was filed … on October 6, 2016 [and] … is afforded a constructive
use date based on this application … [filing date]”; and (2) [Opposer, to prevail] must
show a bona fide use of the MELON mark in the ordinary course of trade in the
United States in connection with t-shirts, hats, and/or sweatshirts prior to October 6,
2016.”20
Thus, “Opposer’s acquisition of common law rights to the term [MELON] must
precede Applicant’s actual or constructive use of [its] mark.” DeVivo, 2020 USPQ2d
10153 at *3 (citing Larami Corp. v. Talk to Me Programs, Inc., 36 USPQ2d 1840, 1845
(TTAB 1995)). “In other words, it is Opposer’s burden to demonstrate that [it] owns a

19 The only evidence Applicant made of record at trial is the Testimony Declaration of its Co-
CEO, Zachary Quinn. Mr. Quinn’s entire Declaration is devoted to Applicant’s first and
continuing use of the mark LOVE YOUR MELON, 16 TTABVUE 2-3, ¶¶ 5-14, which is not
Applicant’s mark presently at issue.
20 Applicant’s Brief, 18 TTABVUE 7, 8.
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trademark ... that was used prior to Applicant’s first use or constructive use of [its]
mark.” Id.
A. Possible Bases for Opposer’s Claim of Priority
We now consider the bases on which Opposer could rely to establish priority. To
begin, Opposer does not assert ownership of a federal registration for its claim of
proprietary rights. “Because Opposer has not pleaded and submitted any
registrations, it must rely on its asserted common law rights ….” WeaponX
Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1040-41
(TTAB 2018).
In its briefs, in addition to common law priority, Opposer’s relies on the alternative
theory of use analogous to trademark use (or “analogous trademark use” for short) in
order to establish priority.21 “[O]ne may ground one’s opposition to an application on
the prior use of a term in a manner analogous to service mark or trademark use. …
Such an ‘analogous use’ opposition can succeed, however, only where the analogous
use is of such a nature and extent as to create public identification of the target term
with the opposer’s product or service.” T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372,
37 USPQ2d 1879, 1881 (Fed. Cir. 1996) (internal citations omitted).
However, a claim of priority based on analogous trademark use must be pleaded
in order for the plaintiff to rely on it. DeVivo, 2020 USPQ2d 10153, at *3 n.10
(“Opposer has not pleaded use analogous to trademark use and Applicant has made

21 Opposer’s Brief, 17 TTABVUE 15, 18-19; Opposer’s Rebuttal Brief, 19 TTABVUE 6, 12-14,
18.
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clear that use analogous to trademark use is not an issue in this proceeding.”);
Central Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1142 (TTAB 2013)
(“reliance on priority through analogous use must be pleaded”); Fair Indigo LLC v.
Style Conscience, 85 USPQ2d 1536, 1539 (TTAB 2007) (“Opposer[’s] … alleg[ation] of
‘analogous use …’ [should] provide[] applicant with ample notice of the basis upon
which it seeks to establish priority in this case for its Section 2(d) claim.”).
Although the purpose of notice pleading is to obviate the need to allege particular
“magic words,” See Levi Strauss & Co. v. R. Josephs Sportswear, Inc., 36 USPQ2d
1328, 1330 (TTAB 1994), we find that Opposer’s allegations in its Notice of Opposition
did not provide Applicant with sufficient notice of the basis for Opposer’s claim of
priority by analogous trademark use as argued in Opposer’s Briefs. The Notice of
Opposition claims general common law trademark rights, not analogous trademark
use. Compare Fair Indigo, 85 USPQ2d at 1539 (“Opposer, by alleging ‘analogous use
starting January 2006,’ has provided applicant with ample notice of the basis upon
which it seeks to establish priority in this case for its Section 2(d) claim.”).
On the other hand, Applicant did not object to Opposer’s assertion of analogous
trademark use, or any of Opposer’s evidence in support thereof, and Applicant in fact
addressed the issue in its brief:
Petitioner argues that it “has priority through analogous use of the
MELON mark beginning when it offered its products for sale into the
United States via its website in June of 2013 and through its Indiegogo
campaign.” (Id.). Not to be discounted is the fact that the goods offered
on its website in June 2013 did not actually include tshirts, hats, and
sweatshirts, nor did the Indiegogo campaign. Petitioner even
acknowledges as such in its Exhibit K, which is declared to be a true and
accurate photo “of the MELON t-shirt collection launched in November
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of 2013 with the MELON mark used on the tshirts as well as a source
indicator printed on the inside back portion of the shirts.” (17 TTABVUE
8, 15 TTABVUE, Ex. K).22
We therefore deem the pleadings to be amended pursuant to Fed. R. Civ. P. 15(b) to
include Opposer’s claim of priority by analogous trademark use. See Nextel Commc’ns,
Inc. v. Motorola, Inc., 91 USPQ2d 1393, 1399 (TTAB 2009) (although opposer did not
plead issue preclusion as a ground for opposition, because applicant did not object to
opposer’s assertion of that ground in its brief and, in fact, addressed the issue in its
brief, the Board deemed the pleadings to be amended pursuant to Fed. R. Civ. P.
15(b)).
B. Applicant’s Proof of Priority
All of Opposer’s proofs of priority, whether by common law trademark use or
analogous trademark use, were submitted through the Testimony Declaration of
Opposer’s co-founder and owner, James Pointer, as follows:23
 Exhibit A – Melon Optics https://melonoptics.com website (as of April 5, 2020)
(15 TTABVUE 10-26). This version of Opposer’s website shows sunglasses,
goggles and apparel items for sale. However, this is well after Applicant’s
application filing date.
 Exhibit B – MELON mark on packaging and hang tags (15 TTABVUE 27-31).
Opposer’s product packaging bearing the MELON mark is undated, and in any
event appears intended for shipment of sunglasses and goggles, but not
apparel. Mr. Pointer says that Opposer’s hang tags “have been affixed to all
MELON apparel since August 2014.”24 Since Applicant did not depose Mr.
Pointer, his statement is unchallenged. However, Mr. Pointer does not say
whether these hangtags were used on apparel shipped to United States
customers, whether in 2014 or at any time since then.

22 Applicant’s Brief, 18 TTABVUE 15.
23 Pointer Decl., 15 TTABVUE.
24 Pointer Decl., 15 TTABVUE 3, ¶ 6.
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 Exhibit C – Melon Optics https://www.melonoptics.co.uk website (November
2013) (Wayback Machine – corroborated by Mr. Pointer) (15 TTABVUE 32-
34).25 This version of Opposer’s website shows sunglasses available for sale in
British Pounds, and the spelling of several words (“colour,” “polarised,” etc.)
are in “British English.” There is no apparel shown, and the website does not
appear to be directed to U.S. consumers.
 Exhibit D – Indiegogo Campaign http://www.indiegogo.com website (November
2013) (Wayback Machine – corroborated by Mr. Pointer) (15 TTABVUE 35-36).
In November 2013, Opposer launched its global lndiegogo Campaign to help
fund its MELON custom snow goggles.26 This version of the website features
product development fundraising for and sales of goggles in British Pounds,
and the spelling of several words (“customised,” “optimise,” “polarised,”
“colours,” etc.) are in “British English.” There is no apparel shown, and the
website does not appear to be directed to U.S. consumers.
 Exhibit E – Indiegogo Campaign Website (undated, no URL provided) (15
TTABVUE 37-38). Mr. Pointer states that this version of the website “as it
exists today [in 2020]” and is “a fair and accurate representation of how …
[Applicant’s] campaign appeared when viewed by a member of the public in
November 2013.”27 This version of the website features product development
fundraising goggles in British Pounds, and discounted sale prices for goggles
in U.S. dollars. There is no apparel shown.
 Exhibit F – Indiegogo Campaign US Orders (15 TTABVUE 39-40). Mr. Pointer
states that this exhibit shows shipment “of over 34 orders of MELON branded
products into the United States in 2013.”28 Sales numbers are reflected in
British Pounds, and all products sold are either goggles or sunglasses.
 Exhibit G and H – Melon Optics Website Analytics 2013-14 and 2013-March
2020 (15 TTABVUE 41-46). Opposer offers these exhibits to show that “[a]s of
March 2020 …, 173,990 separate United States based consumers have viewed
the MELON products for sale on the Melon Optics Website since its inception
in 2013.”29 This is of marginal relevance, because the evidence does not disclose
what items, if any, were available for sale to U.S. consumers during this time
frame.

25 See Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., 2020 USPQ2d 48324, at *4 (TTAB
2020) (“Opposer … use[d] appropriate witness testimony to authenticate the [Wayback
Machine] printouts and lay the foundation to support that intended evidentiary use.”).
26 Id. at 3-4, ¶ 10.
27 Id.
28 Id. at 4, ¶ 12.
29 Id. at 4-5, ¶ 13.
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 Exhibit J – MELON t-shirts available for sale on http://www.melonoptics.co.uk
website (March 2014) (Wayback Machine – corroborated by Mr. Pointer) (15
TTABVUE 49-52). This version of Opposer’s website shows t-shirts available
for sale in British Pounds, and the website does not appear to be directed to
U.S. consumers.
 Exhibit K – MELON t-shirts (15 TTABVUE 53-54). Mr. Pointer says that this
exhibit is a “photo of the MELON t-shirt collection launched in November of
2013 with the MELON mark used on the t-shirts as well as a source indicator
printed on the inside back portion of the shirts.”30 This statement is
unchallenged. However, Mr. Pointer does not indicate specifically that the
t-shirts in this collection were shipped to United States customers, whether in
2013 or at any time since then.
 Exhibit P – MELON Beanie (April 2020) (15 TTABVUE 63-66). The beanies
(knit hats) bearing the MELON mark on a sewn-on tag, shown on the
https://melonoptics.com/shop/beanie/ web page, are available for sale in U.S.
dollars. Mr. Pointer states that since December 2015, the MELON hat
collection has been available for sale on Opposer’s website to consumers
throughout the world, including throughout the United States. He further says
that the exhibit is “the Website ecommerce listing for the MELON hat as it
exists today [2020] and is a fair and accurate representation of how …
[Opposer’s] MELON hat products have appeared for sale on the Website when
viewed by a member of the public since December 2015, especially as to the use
of the mark.”31 This statement is unchallenged. However, Opposer provides no
sales dates or figures for these hats to U.S. consumers.
 Exhibit Q – MELON Beanie and T-Shirt (April 2020) on website cart point-of-
sale (15 TTABVUE 67-69). The beanie and t-shirt bearing the MELON mark,
shown on the https://melonoptics.com/cart/ web page, are available for sale in
U.S. dollars. Mr. Pointer states the exhibit “is a fair and accurate
representation of how the MELON mark has been visible at the point of sale
on the Website for all products sold on the Website since 2013.”32 This
statement is unchallenged, although inconsistent with Exhibit P, about which
Mr. Pointer represents Opposer’s beanie was not available for sale until 2015.
 Exhibit I – MELON t-shirt Launch Facebook Announcement (November 20,
2013 (15 TTABVUE 47-48). Opposer’s Facebook page shows t-shirts available
for sale in British Pounds, and directs visitors to the Indiegogo goggles website
of Exhibit D, also showing products available for sale in British Pounds. The
Facebook announcement does not appear to be directed to U.S. consumers.

30 Id. at 5, ¶ 15.
31 Id. at 6, ¶ 18.
32 Id. at 6-7, ¶ 19
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 Exhibit O – MELON Sweatshirt on Facebook (August 2014) (15 TTABVUE 61-
62). Opposer’s Facebook page shows a sweatshirt available for sale, and directs
visitors to Opposer’s UK website. The Facebook listing does not appear to be
directed to U.S. consumers.
 Exhibits S and T – Melon Optics Facebook Pages (15 TTABVUE 72-78).
Although the year is not shown on the exhibit, Mr. Pointer says Exhibit S is
from 2020.33 Mr. Pointer does not date Exhibit T at all. The entirety of both
Facebook pages is directed to MELON sunglasses and goggles.
 Exhibit L – MELON t-shirts Instagram (November 2013) (15 TTABVUE 55-
56). This Instagram post shows Opposer’s presence at the London Freeze
Festival. Melon t-shirts are hanging at the back of Opposer’s pictured booth.
The text of the Instagram post, however, promotes a give-away of Opposer’s
googles, and directs Internet users to Opposer’s UK website. This Instagram
posting does not appear to be directed to U.S. consumers.
 Exhibit M and N – MELON t-shirts and sweatshirt Instagram (August 2014)
(15 TTABVUE 57-60). The Instagram posts promote Opposer’s MELON
t-shirts and sweatshirt for sale. Exhibit M directs visitors to Opposer’s website,
but which one (.co.uk or .com) is unclear. Whether these Instagram postings
are directed to U.S. consumers also is unclear, and Mr. Pointer’s testimony
regarding these exhibits does not clarify.34
 Exhibit R – Melon Optics Instagram post (April 2020) (15 TTABVUE 70-71).
While the date of the Instagram post is unclear on the exhibit, Mr. Pointer says
it is from 2020. The items pictured are glasses and goggles. There appears no
showing of MELON branded clothing.
In addition to his discussion of the above exhibits, Mr. Pointer says that Opposer
has “spent nearly $20,000 in direct social media marketing and advertising
campaigns in the United States specifically for MELON products”, and “has sold over
$136,000 of products to consumers in the United States since 2013”.35 Mr. Pointer,
however, does not specify the period of time over which Opposer has made its
advertising expenditures, nor does he say what portion of Opposer’s promotional

33 Id. at 7-8, ¶ 23.
34 Id. at 6, ¶ 17.
35 Id. at 8, ¶¶ 25 and 27.
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expenses or sales to U.S. consumers were for apparel products versus sunglasses or
goggles.
C. Priority – Discussion and Analysis
To begin, Opposer provided no evidence regarding the marketplace relatedness of
sunglasses and goggles to apparel products as potentially originating from the same
source under the same mark.36 While the Board might believe such a relationship
exists, we do not render our decision based upon personal viewpoints but rather on
evidence. Absent this proof of relatedness, Opposer cannot rely on its promotion or
sale of sunglasses and goggles to establish common law priority as to apparel
products. Further, we do not credit Opposer with evidence of priority as to any
promotion or sales of MELON apparel that on their face occurred outside the United
States. See Sun Hee Jung v. Magic Snow, LLC, 124 USPQ2d 1041, 1043 (TTAB 2017)
(“[T]he express statutory language of [Trademark Act] Section 2(d) requires prior use
of a mark in the United States by the Opposer ….”).
The Federal Circuit has been clear as to how the Board should consider the
evidentiary record regarding common law trademark priority:
[W]hether a particular piece of evidence by itself establishes prior use is
not necessarily dispositive as to whether a party has established prior
use by a preponderance [of the evidence]. Rather, one should look at the
evidence as a whole, as if each piece of evidence were part of a puzzle

36 See Coach Servs., Inc. v. Triumph Learning LLC, 668 F3d 1356, 101 USPQ2d 1713,
1722 (Fed. Cir. 2012) (“[L]ikelihood of confusion can be found if the respective products are
related in some manner and/or if the circumstances surrounding their marketing are such
that they could give rise to the mistaken belief that they emanate from the same source.
[However,] [t]his alleged overlap does not help … [the opposer’s] position … [when] there is
no evidence in the record regarding the sales or marketing of these items.”).

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which, when fitted together, establishes prior use. The TTAB … [should
not] dissect[] the evidence to the point … [of] refus[ing] to recognize, or
… overlook[ing], the clear interrelationships existing between the
several pieces of evidence submitted.
West Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed.
Cir. 1994). The Board also has said that “[o]ral testimony, if sufficiently probative, is
normally satisfactory to establish priority of use …, and the testimony of a single
witness may be adequate to establish priority.” DeVivo, 2020 USPQ2d 10153, at *3
(internal citations omitted).
Having reviewed the evidentiary record in its entirety and as a whole, we find
Opposer has failed to establish common law trademark priority before Applicant’s
October 2016 filing date. Most troubling, Opposer did not provide figures, much less
records, demonstrating sales of MELON branded apparel to U.S. customers prior to
Applicant’s filing date. The exhibits attached to Mr. Pointer’s Testimony Declaration,
and his explanation of them, repeatedly evince one or both of the following failures of
proof: (1) use of the MELON mark on apparel sold to U.S. customers prior to
Applicant’s filing date, and/or (2) use of the MELON mark on apparel in advertising
and sales channels of trade directed to U.S. consumers.
We also find Opposer’s selective use of Wayback Machine (archive.org) evidence
problematic. In instances where Opposer provided direct, Wayback Machine,
evidence of its use of the MELON mark – such as in Opposer’s Exhibits C, D and J –
there is no use of the mark on apparel on websites directed to U.S. consumers.
Conversely, Opposer’s evidence of its use of the MELON mark on websites directed
to U.S. consumers – such as in Opposer’s Exhibits P and Q – are of recent vintage
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(2020), after Applicant’s 2016 filing date. Mr. Pointer, in his Testimony Declaration,
attempts to relate the 2020 website evidence back to years prior to Applicant’s filing
date rather than providing direct, historical, corroborated Wayback Machine
evidence. Opposer provided no evidence of brick-and-mortar sales of MELON branded
merchandise to U.S. customers at any time. The gaps in Opposer’s proof are manifest.
In Applicant’s Brief, it frames the issue as “whether … [Opposer] has priority of
use in the MELON trademark on consumer goods, including tshirts, hats, and
sweatshirts, pre-dating … [Applicant’s] constructive use date of October 6, 2016 to
support its [o]pposition.”37 Applicant’s answer to this question is that “[a] review of
the relative evidence relied on by … [Opposer] does not demonstrate a bona fide use
of the MELON mark in the ordinary course of trade in the United States in connection
with t-shirts, hats, or sweatshirts [prior to October 6, 2016].”38 We agree. Simply,
Opposer’s proof of common law trademark use of the MELON mark on apparel
directed to U.S. consumers prior to Applicant’s filing date falls short.
We also find Opposer’s proof of analogous trademark use of the MELON mark
insufficient to establish priority. “Before a prior use becomes an analogous use
sufficient to create proprietary rights, the [opposer] must show prior use sufficient to
create an association in the minds of the purchasing public between the mark and
the [opposer]’s goods. … [T]he activities claimed to create such an association must
reasonably be expected to have a substantial impact on the purchasing public ….”

37 Applicant’s Brief, 18 TTABVUE 8.
38 Id.
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Herbko, 64 USPQ2d at 1378. These activities must be “sufficiently clear, widespread
and repetitive to create the required association in the minds of the potential
purchasers between the mark as an indicator of a particular source and the [product]
… to become available later.” T.A.B. Sys., 37 USPQ2d at 1883.
Moreover, the “tacking” theory under which analogous trademark use operates
requires that actual technical trademark use must follow within a commercially
reasonable period of time. Westrex Corp. v. New Sensor Corp., 83 USPQ2d 1215, 1218
(TTAB 2007) (citing Dyneer Corp. v. Automotive Products plc, 37 USPQ2d 1251
(TTAB 1995)); Shalom Children’s Wear Inc. v. In-Wear AIS, 26 USQP2d 1516, 1519
(TTAB 1993). See also Cohen, A.B., Intent to Use: A Failed Experiment?, 35 U.S.F. L.
Rev. 683, 690 (2001) (“[A] … [use analogous to trademark use] claim would be valid
as long as the opposer can also show actual commercial use within a reasonable
time.”); 1 Gilson, J., Gilson on Trademarks, § 3.04 (Matthew Bender & Company, Inc.
Sept. 2020 Update) (“Use analogous [to trademark use] can give an opposer priority
over an applicant for registration of the same mark, provided that the use analogous
is followed by actual use of the mark ‘within a commercially reasonable period of
time.’”).
Opposer’s evidence arguably shows its analogous trademark use of the MELON
mark in connection with t-shirts, hats and sweatshirts creating an association in the
minds of the purchasing public between the mark and these goods prior to Applicant’s
filing date. However, Opposer does not show actual commercial use of the mark in
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connection with these goods in the United States within a reasonable time. Therefore,
Opposer’s claim of priority by analogous trademark use fails.
VI. Conclusion
Opposer’s opposition to the registration of Applicant’s MELON mark under
Trademark Act Section 2(d) fails, because Opposer’s proof of priority – whether by
common law use or analogous trademark use – is insufficient. This renders our
discussion of likelihood of confusion moot.
Decision:
Opposer’s opposition to the registration of Applicant’s MELON mark under
Trademark Act Section 2(d) is dismissed.