Miss Asia Beauty Pageant Ass’n. (U.S.A.), Inc.v.A. L. Models, Inc.

Trademark Trial and Appeal Board

Aug 7, 2000

No. 92025433 (T.T.A.B. Aug. 7, 2000)

Oral Hearing: Paper No.
27
February 16, 2000
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 8/7/00
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Miss Asia Beauty Pageant Association (U.S.A.), Inc.
v.
A.L. Models, Inc.
_____
Cancellation No. 25,433
_____
Albert Robin and Howard B. Barnaby of Robin Blecker & Daley
for Miss Asia Beauty Pageant Association (U.S.A.), Inc.
George R. Baldwin, Esq. for A.L. Models, Inc.
_____
Before Hohein, Chapman and Rogers, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Miss Asia Beauty Pageant Association (U.S.A.), Inc.
has petitioned to cancel the registration owned by A.L.
Models, Inc. for the mark "MISS ASIAN WORLD BEAUTY PAGEANT"
for the services of "business management consulting in the
Cancellation No. 25,433
2
field of beauty pageants".1 As a ground for cancellation,
petitioner alleges that, since long prior to respondent's
alleged date of first use of January 4, 1992, petitioner,
"either [by] itself or through those acting pursuant to its
authorization, has been and now is engaged in the business of
promoting and presenting beauty pageants"; that since long
prior to such date, petitioner's beauty pageants have been
identified by its service mark "MISS ASIAN WORLD BEAUTY
PAGEANT"; that, in 1991, respondent "was selected by
Petitioner to sponsor the 1991 MISS ASIAN WORLD BEAUTY
PAGEANT" and, "pursuant to an agreement with Petitioner,"
respondent "sponsored such a pageant on January 4, 1992";
that, in 1995, respondent "was again selected by Petitioner to
sponsor the 1995 MISS ASIAN WORLD BEAUTY PAGEANT" and,
"pursuant to [a] written agreement with Petitioner,"
respondent "sponsored such a pageant on June 17, 1995; that
since June 17, 1995, petitioner "has not authorized"
respondent "to promote, sponsor, present or conduct any
pageant under the MISS ASIAN WORLD BEAUTY PAGEANT name or
mark"; and that respondent's "MISS ASIAN WORLD BEAUTY PAGEANT"
mark, when used in connection with business management

1 Reg. No. 1,995,350, issued on August 20, 1996 from an application
filed on August 1, 1995, which sets forth dates of first use of
January 4, 1992. The words "ASIAN WORLD BEAUTY PAGEANT" are
disclaimed.
Cancellation No. 25,433
3
consulting services in the field of beauty pageants," so
resembles petitioner's previously used "MISS ASIAN WORLD
BEAUTY PAGEANT" mark for its services of promoting and
presenting beauty pageants as to be likely to cause confusion,
mistake and deception.
As an additional ground for cancellation, petitioner
alleges that, at the time respondent filed the application
which matured into the registration sought to be canceled,
respondent "knew of Petitioner's prior and superior rights in
the service mark MISS ASIAN WORLD BEAUTY PAGEANT"; that
notwithstanding such knowledge, respondent "falsely or
fraudulently represented in its application that it believed
itself to be the owner of the service mark and that no one
else had a right to use the service mark in commerce"; and
that, if respondent had "not made the false or fraudulent
representations referred to ..., the Patent and Trademark
Office would not have issued ... the registration herein
sought to be canceled."
Respondent, in its answer, has denied the salient
allegations of the petition to cancel.
The record consists of the pleadings; the file of
the involved registration; and, as petitioner's case-in-chief,
the testimony, with exhibits, of petitioner's president, Ben
John Chen. Respondent, as its case-in-chief, submitted the
Cancellation No. 25,433
4
testimony, with exhibits, of its vice president, Guangliu
Ling.2 As rebuttal thereto, petitioner furnished the
testimony, with exhibits, of Mr. Chen3 and that of his wife
and secretary, Pikna Leung Chen. Only petitioner filed a
brief, although both parties were represented at the oral
hearing held before the Board.4
The issues to be determined are whether petitioner
has priority and, if so, whether contemporaneous use of the
parties' marks is likely to cause confusion; and whether
respondent fraudulently obtained its registration.
According to the record, petitioner is in the
business of "[s]electing Asian beauties"; that is, it conducts
beauty pageants in which the contestants are of Asian descent

2 Although Anna Ling, whom the record reflects is the president of
respondent, not only attended such deposition but was duly sworn and
testified therein, her testimony has not been considered inasmuch as
there is no indication that respondent gave petitioner notice that
she would appear as a witness on behalf of respondent. However, even
if her testimony were to be considered, it would make no difference
in the outcome of this proceeding.
3 While, at Mr. Chen's rebuttal deposition, an interpreter, although
duly sworn, also presented testimony concerning certain exhibits,
such testimony has not been considered in the absence of any
indication that petitioner provided respondent with notice that the
interpreter, Frank P. Wen, would be called as a witness on behalf of
petitioner. Nevertheless, even if the interpreter's testimony were
regarded as properly forming part of the record, it would make no
difference in the result herein.
4 Respondent's appearance, at the oral hearing, was by Mr. Ling
rather than by counsel. Mr. Ling indicated, however, that respondent
is still represented by its counsel of record, who had no objection
to Mr. Ling making an appearance on respondent's behalf.
Cancellation No. 25,433
5
or heritage. (Ben John Chen dep. at 6.) Petitioner's
pageants are not intended to be profit-making ventures;
rather, their purpose is to promote Asian (principally
Chinese) culture, encourage Asian youth, foster unity among
Asian people and promote communication between eastern and
western cultures. Petitioner presented its first pageant,
called the "MISS ASIA BEAUTY PAGEANT (USA)," at the Tropicana
Hotel & Casino in Atlantic City, New Jersey on or about
October 12 and 13, 1984. Petitioner's president, Mr. Ben John
Chen, is listed in the souvenir program for the pageant as the
chairman of the Miss Asia 1984 Pageant Organizing Committee
and described his involvement with such pageant as that of
being "the initiator, establisher, as well as the chairman."
(Id. at 8.)
A year later, petitioner presented its second beauty
pageant, advertised in a flyer as the "MISS ASIA PAGEANT '86"
and referred to in a printed program for the event as the
"MISS ASIA BEAUTY PAGEANT," at Felt Forum, Madison Square
Garden, in New York, New York on October 5, 1985. As was the
case with its first Miss Asia Pageant, the program, entitled
"THE SECOND MISS ASIA BEAUTY PAGEANT JOURNAL," lists Ben John
Chen as the chairman of the event. (Petitioner's Ex. 5;
Respondent's Ex. 5.)

Cancellation No. 25,433
6
Petitioner next held its third pageant, under the
mark "MISS ASIAN WORLD BEAUTY PAGEANT" (a change from its
"MISS ASIA BEAUTY PAGEANT" mark), in Taipei, Taiwan, sometime
during 1988. According to Mr. Chen, he "authorized a company
in Taiwan to run this pageant" on behalf of petitioner. (Id.
at 11.) The pageant was televised in Taiwan but not in the
United States, although a videotape of such broadcast was
shown by Mr. Chen, after his return from Taiwan, at the
Chinese Culture Center in Flushing, New York. The printed
program for the pageant, which is principally written in
Chinese, features a prominent picture of Mr. Chen and bears
the following logo on the front cover thereof:
There is no indication in the record, however, of any
involvement by respondent with such pageant nor is there any
evidence thereof with respect to either of the two earlier
pageants presented by petitioner in the 1980s.
The next "MISS ASIAN WORLD BEAUTY PAGEANT" took
place at the Trump Plaza Hotel and Casino in Atlantic City,
Cancellation No. 25,433
7
New Jersey on January 4, 1992. Preliminarily thereto,
petitioner and respondent executed an authorization letter on
May 7, 1991 which, as the purpose thereof, provides that "Miss
Asia Beauty Pageant Associating [sic] (U.S.A.) Inc.
(hereinafter known as MABPA) ... is to authorize A.L. Model[s,
Inc.] (hereinafter known as ALM) ... to sponsor the 4th
Worldwide Asia Beauty Pageant during 1991 in Atlantic City,
NJ, U.S.A." (Petitioner's Ex. 9; Respondent's Ex. 6.) The
letter, which states that it is "[s]igned by the authorizing
party" above the signature for petitioner of Mr. Chen and
"[s]igned by the authorized party" above the signature of
"Anna Ling, President of" respondent, further provides among
other things that "ALM agrees to follow the Chapters & By-laws
of MABPA and accept guidance from persons designated by
MABPA"; that "MABPA will use its best effort to assist ALM in
the Beauty Pageant Competition so that the incident will have
a successful result"; and that "ALM also agrees ... to protect
the reputation of MABPA and indemnify and save harmless MABPA
... against and from any and all claims, ... costs, liability
or responsibility of whatever nature arising from hosting the
1991 Beauty Pageant Contest." (Id.)
Such letter, however, was superseded by a contract
signed by the parties on September 10, 1991. The contract,
which is principally written in Chinese, is on the letterhead
Cancellation No. 25,433
8
of the "Miss Asian World Beauty Pageant" and displays the
"MISS ASIAN WORLD BEAUTY PAGEANT" logo of petitioner as well
as the address, telephone number and fax number for
respondent. As set forth in the English translation thereof,
the contract provides in relevant part that (highlighting in
original):
Miss Asian World Beauty Pageant
(hereinafter called Party A) and A L Models
(hereinafter called Party B) have entered
the following contract and made it
effective from the date signed by both
parties.
I. Party A has authorized Party B to
organize and conduct the 4th Miss
Asian World Beauty Pageant 1992 at
GENTLEMAN HOTEL in Atlantic City, USA
--- within the year of 1992. And all
necessary preparations shall be
performed by Party B.
II. Party A shall supply Party B with the
data and related materials for
selection --- for Miss Asian World
Beauty Pageant ....
III. Both parties agree to invite some
famous persons --- who enjoy high
prestige both at home and abroad and
who are warm-hearted to be sponsors --
- to be members of the Selection
Committee ....
....
And ... in accordance with the
regulations set forth by US
government, the same amount of all
monetary donations shall be deducted
from the personal tax report of the
individual's annual income --- with
Cancellation No. 25,433
9
the approved tax number of Miss ASIA
Beauty Pageant Associating [sic] (USA)
Inc. ....
For all the above donations, if the
amount is obtained by Party A from
overseas, ... Party A shall inform
Party B the exact amount, of which
Party a [sic] shall have 50% for
commission ..., the remaining 50%
shall be handed over to Party B
(within one week after receiving the
money) for its expenses on beauty
selection planning and administrative
activities. ....
....
Party A shall help Party B with
selling the ticket for the contest,
and 15% shall be withdrawn from the
total amount of tickets sale for
commission, the remaining part shall
be used for Party B's expenses on the
beauty selection activities.
IV. Party B shall observe the stipulations
in the Authorization Certificate and
shall be responsible for all
preparatory, administrative work, and
shall also assume sole responsibility
for its own financial matters, either
profits or losses.
V. Party B shall inform Party A in
advance, for caution's sake, on all
matters concerning Miss Asian World
Beauty Pageant programs, members of
the Committee, names of the candidates
and of the distinguished guests to be
invited, etc.
VI. Party B shall take special care of all
the candidates for Miss Asian World
Beauty Pageant, either in the
reception of them or during the period
of the event, with the purpose to
Cancellation No. 25,433
10
avoid all possible accidents, and to
protect the reputation and the image
of Miss Asian World Beauty Pageant.
VII. Party A shall inform Party B: the
exact amount of donations from
sponsors ..., the income from
advertising, etc. and the funds shall
be used by Party B for its
expenditure. ....
VIII. Party A shall be the founder and
Honorary Chairman of Miss Asian World
Beauty Pageant.
IX. During the whole period of the beauty
contest, Party B shall be in charge of
the accommodations and reception of
the candidates, also of the
commemorative picture-taking with the
candidates.
X. Within fifteen (15) days after the
event, Party B shall send Party A :
10 copies of the Special issue of the
Contest together with 2 copies of the
video tapes, for Party A to keep for
commemorative purposes. Party B shall
also give Party A the summary report
of the event and the final accounting
of revenue and expenditure for the
whole event, which shall be submitted
for examination by the government.
Party B shall be cooperative with the
accountants.
XI. The previous Contact [sic] is void.
....
(Petitioner's Ex. 23.)
In seeking contributions prior to the presentation
of the 1992 pageant, respondent's president, Anna Ling,
distributed a letter, written in English, on the stationery of
Cancellation No. 25,433
11
"Miss Asian World Beauty Pageant" which is dated "1992" and
which states, inter alia, that (highlighting in original):
We are now preparing our "Miss Asian
World Beauty Pageant 1992," at the Trump
Plaza Hotel and Casino. The date is
January 4, 1992.
Our pageant is the largest Asian
beauty contest in the world. The first
contest was held on October 5 [sic], 1984
at the Tropicana Casino and Hotel in
Atlantic City. The second contest on
October 5, 1985 was at Madison Square
Garden, New York City. The third contest
was held from October to November 1988, Tai
Pei, China. This event will be the fourth
contest.
Anna Ling, of A.L. Models New York
City is organizing this pageant as it's
[sic] President. Most recently, Miss Ling
conducted two similar, successful pageants
at the Sands Hotel and Casino in Atlantic
City. ....
The candidates will come from
different parts of U.S.A., Europe and many
countries in Asia to vie for the coveted
title of Miss Asian World 1992.
(Petitioner's Ex. 17.) The letter prominently displays, in
the upper left hand corner thereof, the "MISS ASIAN WORLD
BEAUTY PAGEANT" logo utilized by petitioner in connection with
the pageant it held in 1988 in Taiwan, but also lists, in the
upper right hand corner thereof, respondent's address and its
telephone and fax numbers. However, as noted earlier,
respondent had no role or association with any of the prior
pageants presented by petitioner.
Cancellation No. 25,433
12
Another letter utilized for soliciting financial
sponsorship for the 1992 pageant, but which is written in
Chinese, uses the identical "Miss Asian World Beauty Pageant"
stationery for its letterhead, including the same "MISS ASIAN
WORLD BEAUTY PAGEANT" logo utilized by petitioner in
connection with its 1988 pageant as well as the address and
telephone and fax numbers for respondent. The letter, which
the English translation thereof indicates is under the name of
Ben John Chen, refers to Mr. Chen as both "Founder, Miss Asian
World Beauty Pageant" and member of "The Preparatory
Committee". (Petitioner's Ex. 8.) The letter states in part
that (highlighting in original):
It has been decided that Miss Asian
World Beauty Pageant 1992 will have its
grand opening at Trumpet [sic] Palace Hotel
... in the evening of January 4th, 1992.
As always known to the public that you
have been enjoying high respect and
prestige, both at home and abroad, for your
wise leadership, ... you are now requested
to accept the honor of (title) and
it is the sincere hope that you could be
generous enough to give your financial
sponsorship to the funds of the Beauty
Pageant, and to make joint efforts for its
success.
....
The total amount of your contributions
... will be deducted from your annual
personal income tax. Your photo will also
be carried in the Special issue of Miss
Cancellation No. 25,433
13
Asian World Beauty Pageant --- to honor
your good deeds.
(Id.)
The event's printed program, entitled "Miss Asian
World Beauty Pageant 1992," also states on the cover thereof
that the pageant is "Presented by JIANLIBAO," the principal
sponsor thereof, "In Association with A.L. Models Inc."
(Petitioner's Ex. 10; Respondent's Ex. 2.) A photograph of
"Ben John Chen Ph.D.," who is identified among other things as
the "Funder [sic] of Miss Asia Beauty Pageant Association," is
prominently featured inside the program, but Mr. Chen is not
listed among the names comprising the "Miss Asian World Beauty
Pageant 1992 Committee," nor is he mentioned elsewhere in the
program. (Id.) Instead, such program features a full-page
picture of respondent's president and lists her as both
"President of Miss Asian World Beauty Pageant 1992" and
"Director". (Id.)
Petitioner, based upon a statement of income and
loss furnished by respondent as its final accounting of
revenues and expenditures for the 1992 "MISS ASIAN WORLD
BEAUTY PAGEANT," filed a tax return with respect to such event
as a tax-exempt organization.5 The statement of income and

5 Curiously, as shown by Petitioner's Ex. 12, the copy of the return,
which is not signed by any officer of petitioner, is for the year
1991 even though the pageant took place in early 1992 and the
Cancellation No. 25,433
14
loss, Mr. Chen testified, represents "the income and expenses
of the beauty pageant run by Miss Ling and she present this in
accordance with the contract." (Ben John Chen dep. at 17.)
The next "MISS ASIAN WORLD BEAUTY PAGEANT," which
also is referred to as the "5th Miss Asian World Beauty
Pageant 1995" as well as the "Miss Asian World Beauty Pageant
1995," occurred at the Sands Hotel & Casino in Atlantic City,
New Jersey on June 17, 1995. Once again, petitioner and
respondent entered into a contract, on May 10, 1995,
formalizing their relationship with respect to "the 5th Miss
Asian World Beauty Pageant 1995". (Petitioner's Ex. 13;
Respondent's Ex. 8.) The contract, written primarily in
Chinese on stationery bearing the letterhead "Miss ASIA Beauty
Pageant Associating [sic] (USA) inc.," is in relevant part
basically identical, as indicated by the English translation
thereof, to the contract executed by the parties in connection
with the 1992 "Miss Asian World" beauty pageant. In
particular, it provides that petitioner authorizes respondent
to organize and conduct "the 5th Miss Asian World Beauty
Pageant 1995"; that petitioner is to supply respondent with
information and assistance with respect to the members of the
selection committee for such pageant; that, in terms of

signature of the accountant signing as the preparer thereof is dated
May 7, 1993.
Cancellation No. 25,433
15
quality control, respondent is to inform petitioner in advance
as to "all matters concerning Miss Asian World Beauty Pageant
programs, members of the Committee, names of the candidates
and of the distinguished guests to be invited, etc." and is to
"take special care of all the candidates ... to protect the
reputation and the image of Miss Asian World Beauty Pageant,"
that petitioner shall assist respondent "in selling the
tickets, which should be at preferential prices in favor of"
petitioner; that petitioner "shall be the founder of Miss
Asian World Beauty Pageant, while respondent "shall be in
charge of the accommodations and reception of the candidates"
along with "the commemorative picture-taking with the
candidates"; and that respondent is obligated, within 15 days
of the event, to furnish petitioner with, inter alia, "the
summary report of the event and the final accounting of
revenue and expenditure for the whole event". (Id.)
Mr. Chen testified with respect to such contract as
follows:
Q. This contract was signed by whom?
A. I and Anna Ling.
Q. What was the purpose of the
contract?
A. Authorizes her to run the World
Beauty Pageant for 1995.
Cancellation No. 25,433
16
Q. Was that the Miss Asian World
Beauty Pageant?
A. Correct.
(Ben John Chen dep. at 19.) After identifying an exhibit as
the printed program for the 1995 "Miss Asian World Beauty
Pageant," Mr. Chen further testified as follows:
Q. Was that run by Miss Ling
pursuant to the contract which is Exhibit
13?
A. Yes, yes.
(Id. at 20.)
The printed program for such event is entitled "Miss
Asian World Beauty Pageant 1995" and, besides listing on the
cover thereof "Knorr" and "Kamable" as, respectively, the
"General Sponsor" and "Special Sponsor" of the pageant, states
that the event is "[p]roduced by A. L. Model's [sic] Inc."
(Petitioner's Ex. 14; Respondent's Ex. 9.) As in the program
for 1992, the inside of the 1995 program features a photograph
of "Ben John Chen Ph.D.," who is identified among other things
as the "Funder [sic] of Miss Asia Beauty Pageant Association".
(Id.) However, unlike the 1992 version, the 1995 program also
lists Mr. Chen among the names comprising the "Miss Asian
World Beauty Pageant 1995 Committee" and identifies him as
"Funder [sic] of the Pageant". (Id.) Such program also
features, as in 1992, a full-page picture of respondent's
Cancellation No. 25,433
17
president and lists her as both "President of Miss Asian World
Beauty Pageant" and "Event Director". (Id.)
Petitioner, however, did not receive from respondent
the contractually required final accounting of revenues and
expenditures for the 1995 "MISS ASIAN WORLD BEAUTY PAGEANT".
In view thereof, petitioner, by an authorization letter made
on July 1, 1995, "authorize[d] Premier Entertainment (NY) Inc.
(hereinafter known as PEI) ... to sponsor the Asia Beauty
Pageant during 1996 in U.S.A." (Petitioner's Ex. 15.) The
letter provides among other things that "PEI acknowledges and
agrees to introduce Mr. Ben John Chen as the Founder and First
Honorable Chairman at the Miss Asia Beauty Pageant." (Id.)
Such a pageant, however, was never held and no pageants have
been presented under the designation "MISS ASIAN WORLD BEAUTY
PAGEANT" since the event held in 1995. In particular,
according to the following testimony by Mr. Chen:
Q. Mr. Chen, have there been any
Miss Asian World Beauty Pageants since
1995?
A. No.
Q. Have you authorized A.L. Models
or Miss Ling to run any additional Miss
Asian World Beauty Pageants since 1995?
A. In 1995 Anna Ling ... did not
submit the figures to me in accordance with
the contract.
Q. So have you authorized her to run
anymore [sic] pageants?
Cancellation No. 25,433
18
A. No.
(Id. at 21-22.)
Respondent, on the other hand, claims to have "been
using Miss Asian World Beauty Pageant since 1991" and to have
held "our own beauty pageant named Miss Asian World Beauty
Pageant in 1992." (Ling dep. at 5.) Respondent insists that
it "create[d] the name Miss Asian World Beauty Pageant by
ourself" and that, contrary to what is shown by Petitioner's
Ex. 14 and respondent's own Ex. 9 (such exhibits being copies
of the program for the 1995 "MISS ASIAN WORLD BEAUTY PAGEANT),
"[t]here's no one, no one person, from the committee from Miss
Asia Beauty Pageant [Association] (USA) join our beauty
pageant." (Id. at 5-6.) While respondent's witness, Mr.
Ling, indicated that respondent "had already prepared our
beauty pageant" by the first time he encountered a
representative from petitioner "[i]n early 1991 regarding the
beauty pageant business and that he brought in Mr. Chen as a
sponsor "around March 1991" after having created "my beauty
pageant's title," respondent notably offered no documentary
evidence to support his assertions. (Id. at 7.)
Respondent further claims that Mr. Chen failed to
live up to a promise to contribute $10,000.00 as a sponsor of
the 1992 pageant run by respondent. According to Mr. Ling,
Mr. Chen "did not do anything"; specifically, "[h]e did not
Cancellation No. 25,433
19
provide $10,000 to be an honorary president, not one of his
committee members provided a penny to our beauty pageant or
provide some assistance or help our beauty pageant, and they
refuse to sell tickets." (Id. at 9.) In addition, respondent
maintains that pursuant to a verbal agreement reached around
November 1991, Mr. Chen agreed to find sponsors for
respondent's pageant and, for each sponsor he found, he would
be paid by respondent a commission of 50% of the donated
amount in addition to putting "his picture on our programs as
the honorary mention without any position." (Id. at 10.) As
to such verbal agreement, Mr. Ling conceded that, with respect
to the "MISS ASIAN WORLD BEAUTY PAGEANT" held in 1992, Mr.
Chen "found a few sponsor[s] for my beauty pageant" and that
respondent paid him his 50% commission. (Id. at 13.)
Respondent insists, however, that it owned such pageant and
that, despite the May 7, 1991 authorization letter, it did not
at any point in time receive any authorization from either
petitioner or Mr. Chen to use the name "MISS ASIAN WORLD
BEAUTY PAGEANT". Instead, and completely at odds with what
the English translation of such letter shows on its face, Mr.
Ling stated on cross-examination that the letter "is the
invitation of offer to Mr. Ben John Chen" to sponsor
respondent's 1992 "MISS ASIAN WORLD BEAUTY PAGEANT". (Id. at
22.)
Cancellation No. 25,433
20
Respondent admits that it had no connection with
either of the pageants presented by petitioner in 1984 and
1985. As to petitioner's 1988 "MISS ASIAN WORLD BEAUTY
PAGEANT" held in Taiwan, Mr. Ling indicated on cross-
examination that respondent had no knowledge thereof, prior to
selecting such name in 1991 for the pageants it produced in
the United States in 1992 and 1995. On direct examination,
however, Mr. Ling conceded that, for the 1992 pageant,
respondent furnished petitioner, as well as other sponsors,
with a statement of income and loss, and that "Mr. Ben John
Chen use this paper, the information, as his tax return form".
(Id. at 25.) Mr. Ling added, however, that respondent paid
all the bills for the pageant's expenses, rather than
petitioner, and that consequently Mr. Chen "couldn't use this
statement to be his company's tax return form, and only he
should report his income because he get 50 percent
[commission]." (Id.) Yet, when asked on cross-examination
whether respondent is a tax exempt organization, Mr. Ling
answered only that "you have to ask the accountant" who
"handle[s] our business." (Id. at 35.)
With respect to the contract (which is Petitioner's
Ex. 13 and Respondent's Ex. 8) executed on May 10, 1995, Mr.
Ling testified that respondent did not sign such agreement and
that petitioner, rather than authorizing respondent to conduct
Cancellation No. 25,433
21
the 1995 pageant, had no role other than finding a single
sponsor. Specifically, according to Mr. Ling:
Q I show you this document, and I
ask you to explain to us what it is and
what it represents, as far as you know
(handing).
A This one no one in our office to
sign this agreement.
Q What is the nature of the
agreement?
A It's 100 percent handwriting by
Ben John Chen. He make it. And take a
look at the date the document shows is on
the 1995 May 10. Our 1995 Miss Asian World
Beauty Pageant was held on June 1995. On
this time we have already prepare
everything. ....
....
Q Was there any discussion about
the substance and the subject matter of
that agreement between you and/or your
organization and Ben John Chen?
A (Through the interpreter) We
have discussed something, some content
inside, but we did not sign this agreement.
Okay? This time Ben John Chen still want
to do the same way as the 1992 beauty
pageant. He want to find a sponsor to make
some commission, and he still wants us to
put his name on the beauty pageant program,
and then we tell him, Okay, this time there
will be no 50 percent commission. ....
And you have to help sell ticket. .... He
said, Okay, I agree to help you sell
ticket, and he agree he's not going to take
50 percent commission. Okay? We did not
sign this. We just have telephone
conversation. He agree, but in fact he did
not sell even one ticket. .... He found
Cancellation No. 25,433
22
one sponsor, and he got very small amount
commission.
Q So he participated on a very
limited amount for that year, 1995?
A Yes.
(Id. at 27-29.)
However, when again shown the 1995 contract on
cross-examination and referred to the signature portion of the
Chinese version, Mr. Ling refused, after being directed by
counsel not to answer, to say whose signatures were on such
document even though respondent had offered the document,
testifying as follows:
Q Let me show you Registrant's
Exhibit 8. On the last page on the bottom,
are there any (handing) --
MR. BALDWIN: May I see that?
THE WITNESS: (Handing)
MR. BALDWIN: I object to it.
Not in English.
Q Are there any signatures?
MR. BALDWIN: I object and --
A Objection. My lawyer objects.
MR. BALDWIN: And I direct him
not to answer.
(Id. at 38-39.)
In rebuttal, however, Mr. Chen testified that the
contract between the parties for the 1995 "MISS ASIAN WORLD
Cancellation No. 25,433
23
BEAUTY PAGEANT" was indeed signed by both himself and Anna
Ling, and pointed out where each of their signatures appears
on the Chinese version of such document. Mr. Chen, in
particular, testified that he signed the contract, had it sent
to Ms. Ling for her signature, and received it back from her
with her signature. Mr. Chen's wife, and the secretary of
petitioner, Pikna Leung Chen, corroborated Mr. Chen's
testimony, stating that the original of the contract for the
1995 pageant is in petitioner's files; that she sent the
contract to Anna Ling; and that Ms. Ling "faxed to us after
she signed it." (Pikna Leung Chen dep. at 8.) Mrs. Chen, who
noted that she has been involved since 1990 in the "MISS ASIAN
WORLD BEAUTY PAGEANTS" run by her husband, also vouched for
the authenticity of the contract between the parties, signed
on September 10, 1991, for conducting the 1992 "MISS ASIAN
WORLD BEAUTY PAGEANT".
Turning first to the ground of priority of use and
likelihood of confusion, we find that the services set forth
in respondent's involved registration, namely, "business
management consulting in the field of beauty pageants,"
consist of the organizing, conducting and presenting of beauty
pageants and that such services are identical to those
rendered by petitioner, who has likewise held beauty pageants.
The issue of priority of use in this case, in light of the
Cancellation No. 25,433
24
symbiotic relationship between the parties, consequently turns
on which party is in fact the owner of the "MISS ASIAN WORLD
BEAUTY PAGEANT" mark for the services of holding or conducting
beauty pageants.
We find from the credible evidence of record that it
is petitioner, rather than respondent, who is and at all
relevant times has been the owner of the "MISS ASIAN WORLD
BEAUTY PAGEANT" mark as used in connection with the services
of holding or presenting beauty pageants. Petitioner itself
conducted beauty pageants in the United States in 1984 and
1985 under the similar marks "MISS ASIA BEAUTY PAGEANT (USA)"
and "MISS ASIA BEAUTY PAGEANT," respectively, and was the
first to use the mark "MISS ASIAN WORLD BEAUTY PAGEANT" in
connection with such services. Although petitioner's initial
use of the "MISS ASIAN WORLD BEAUTY PAGEANT" mark occurred
abroad rather than in the United States, petitioner continued
its practice, which started with the 1988 pageant it held in
Taiwan, of engaging another firm to do the actual organizing
and running of its pageants under the "MISS ASIAN WORLD BEAUTY
PAGEANT" mark.
Here, the record is clear that petitioner authorized
respondent to conduct, for petitioner, the beauty pageants
presented in 1992 and 1995 under the "MISS ASIAN WORLD BEAUTY
PAGEANT" mark. Respondent's characterization of the initial
Cancellation No. 25,433
25
authorization letter from petitioner, dated May 7, 1991, as
respondent's invitation to Mr. Chen to be a sponsor of the
pageant present by respondent on January 4, 1992 is simply not
credible. Nor is the assertion credible, in light of the
terms of both the September 10, 1991 contract superseding
petitioner's May 7, 1991 letter and the provisions of the May
10, 1995 contract, that respondent never received any
authorization from petitioner or Mr. Chen to use the "MISS
ASIAN WORLD BEAUTY PAGEANT" mark. The May 10, 1995 contract
is essentially identical in substance to the parties'
September 10, 1991 agreement and, while it is disputed as to
whether respondent executed such contract, we find from both
the preponderance of the evidence as well as Mr. Ling's
failure to answer a proper question on cross-examination6 that

6 As noted by the Board in Levi Strauss & Co. v. R. Josephs
Sportswear Inc., 28 USPQ2d 1464, 1466-67 (TTAB 1993), recon. denied,
32 USPQ2d 1328 (TTAB 1994):
[T]here is no mechanism for obtaining from the Board,
prior to final hearing, a ruling on the propriety of an
objection to a question propounded during a testimony
deposition. This is because, unlike the practice in
Federal district courts, where testimony is given before a
judge who can immediately rule on objections, in Board
proceedings testimony is submitted in the form of a
deposition transcript, and the Board panel does not review
the testimony until final hearing. It is therefore the
general, and as far as the Board is concerned, favored
practice that questions are answered subject to any
objection which has been made. Although a party's witness
may refuse to answer a question or, as in the present
case, be instructed by the party's attorney not to answer,
a refusal to answer may, if the objection is not well
Cancellation No. 25,433
26
respondent, by its president, Anna Ling, did indeed sign the
contract by which petitioner again authorized it to produce a
beauty pageant under the "MISS ASIAN WORLD BEAUTY PAGEANT"
mark.7 Moreover, not only did petitioner file a tax return
with respect to the income and expenses of the 1992 pageant,
but only petitioner, following respondent's failure to provide
petitioner with an accounting for the 1995 pageant, thereafter
endeavored to conduct a beauty pageant by authorizing another
party in 1996 to do so (even though such a pageant was not
held). The sole beauty pageants organized and presented by
respondent under the "MISS ASIAN WORLD BEAUTY PAGEANT" mark,
however, were held in 1992 and 1995 in association with
petitioner and were under the quality control of petitioner as

taken, be construed against the non-answering party.
Health-Tex Inc. v. Okabashi (U.S.) Corp., 18 USPQ2d 1409
(TTAB 1990). In this case, rather than simply stating his
objection and permitting an answer, opposer's attorney
instructed its witnesses not to answer most of applicant's
questions on cross-examination. Because we find opposer's
objections to be not well taken, we must presume that the
answers would have been adverse to opposer's position.
See also TBMP §§404.02, 713.08 and 718.03(d). Likewise, in this
case, we find the objection interposed by respondent's counsel was
not well taken and that Mr. Ling's answer to the question of whether
the document had any signatures would have been adverse to
respondent's position.
7 While we note Mr. Ling's testimony that the date of the 1995
contract is only a little more than one month before the pageant was
held on June 17, 1995, we also observe that the parties had
previously worked together in 1991 to present the 1992 pageant and
thus were experienced in organizing and running beauty pageants
together.
Cancellation No. 25,433
27
specified in the authorizing contract provisions for such
events. No other pageants were conducted by respondent,
either under such mark or any other mark.
Moreover, that respondent, prior to an apparent
falling out with petitioner after the 1995 pageant (as
evidenced by respondent's failure to furnish a final
accounting to petitioner and by petitioner's authorizing of a
third-party to produce a pageant in 1996), understood its role
to be that of the producer of petitioner's pageants, rather
than the owner of the mark therefor, is clearly shown by the
1992 fundraising letter distributed by respondent. Such
letter, bearing the logo utilized by petitioner in conjunction
with its 1988 pageant in Taiwan, not only belies respondent's
contention that it created the "MISS ASIAN WORLD BEAUTY
PAGEANT" mark, but clearly acknowledges that the 1992 version
thereof, scheduled to be held January 4, 1992 at the Trump
Plaza Hotel and Casino, was to be "the fourth contest," of
which the first three had been presented by petitioner with no
involvement whatsoever by respondent. (Petitioner's Ex. 17.)
Respondent's role, as stated in the letter, was that "Anna
Ling, of A.L. Models New York City is organizing this pageant
as it's [sic] President." (Id.)
As to respondent's assertion, both in the testimony
of its witness and at oral argument, that petitioner's role
Cancellation No. 25,433
28
and that of Mr. Chen was limited to soliciting financial
sponsorship for the 1992 and 1995 pageants, it is clear that,
in those instances where Mr. Chen is referred to as the
"Funder" of the "Miss Asian World Beauty Pageant," such term
is simply a misspelling of the word "Founder". We judicially
notice, in this regard, that there is no such word as "funder"
in the English language.8 Moreover, another letter, which was
also used for soliciting sponsorship of the 1992 pageant and
which likewise bears the "MISS ASIAN WORLD BEAUTY PAGEANT"
logo utilized by petitioner in connection with its 1988
pageant, reference is made to Mr. Chen by the title "Founder,
Miss Asian World Beauty Pageant," thereby dispelling
respondent's contention that Mr. Chen had no association with
the 1992 and 1995 pageants other than as a sponsor.9

8 It is settled that the Board may properly take judicial notice of
dictionary definitions. See, e.g., Hancock v. American Steel & Wire
Co. of New Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953);
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983); and Marcal Paper Mills, Inc. v. American Can
Co., 212 USPQ 852, 860 (TTAB 1981) at n. 7. It follows, in view
thereof, that the Board may also judicially notice that a term is
absent from a dictionary listing. In the present case, for example,
neither Webster's Third New International Dictionary (3rd ed. 1993)
at 921 nor The Random House Dictionary of the English Language (2d
ed. 1987) at 776 contains a definition of the term "funder".
9 As even a cursory reading of the record in this case reveals, the
documents introduced contain numerous spelling and grammatical
errors. For example, in addition to Mr. Chen being referred to in
various instances as "Funder," petitioner is on occasion referenced
as "Miss ASIA Beauty Pageant Associating (USA) inc." while respondent
is set forth as "A. L. Model's Inc." Clearly, however, such
Cancellation No. 25,433
29
(Petitioner's Ex. 8.) It is thus plain that respondent knew,
or at the very least should have known, that it was not the
originator of the "MISS ASIAN WORLD BEAUTY PAGEANT" mark and
that such mark, instead, belonged to petitioner.
Accordingly, just as a party may properly claim
ownership of a mark when the mark is applied to goods at the
party's instruction,10 the same is true when a party contracts
with another to provide services on the party's behalf. While
respondent plainly incurred and paid the expenses for the
pageants it organized and presented, and received
contributions from sponsors and income from ticket sales, such
activities were under the auspices of petitioner who, rather
than running the pageants itself under the "MISS ASIAN WORLD
BEAUTY PAGEANT" mark, authorized respondent to do so by
written agreements under which petitioner retained control
over the nature and quality of the services rendered.
Respondent, in short, was simply hired to conduct the 1992 and
1995 pageants for petitioner, who retained ownership of the

references are typographical errors which are of no legal
significance.
10 For instance, if a party contracts with a manufacturer to have
goods produced for the party and instructs the manufacturer to place
the mark on the goods, that is the equivalent of the party itself
placing the mark on its own goods. See, e.g., Target Stores, Inc. v.
Trupp, 158 USPQ 614, 614-15 (TTAB 1968).
Cancellation No. 25,433
30
"MISS ASIAN WORLD BEAUTY PAGEANT" mark and, in effect, may be
said to have "licensed" it to respondent.
Therefore, inasmuch as petitioner, being the owner
of the "MISS ASIAN WORLD BEAUTY PAGEANT" mark, has priority of
use thereof, we find that the contemporaneous use by the
parties of such mark in connection with the beauty pageant
services rendered by petitioner and the equivalent thereof
provided by respondent, namely, "business management
consulting in the field of beauty pageants," would be likely
to cause confusion as to source or sponsorship of their
services.
This brings us to consideration of the issue of
fraud. Section 1(a)(1)(A) of the Trademark Act provides, in
pertinent part, that an application for registration "must be
verified by the applicant" and must include "a statement to
the effect that the person making the verification believes
himself, or the firm, corporation, or association in whose
behalf he makes the verification, to be the owner of the mark
sought to be registered ...." As our principal reviewing
court has noted in Torres v. Cantine Torresella S.r.l., 808
F.2d 46, 1 USPQ2d 1483, 1484 (Fed. Cir. 1986):
Fraud in procuring a trademark
registration ... occurs when an applicant
knowingly makes false, material
representations of fact in connection with
his application. See Le Cordon Bleu, [S.A.
Cancellation No. 25,433
31
v. BPC Publishing Ltd.,] 451 F.Supp. [63,]
... 72 n.14, 202 USPQ [147,] ... 154 n.14
[(S.D.N.Y. 1978)]; Schwinn Bicycle Co. v.
Murray Ohio Manufacturing Co., 339 F.Supp.
973, 983, 172 USPQ 14, 21 (M.D. Tenn.
1971), aff'd, 470 F.2d 975 [176 USPQ 161]
(6th Cir. 1972). "[T]he obligation which
the Lanham Act imposes on an applicant is
that he will not make knowingly inaccurate
or knowingly misleading statements in the
verified declaration forming a part of the
application for registration." Bart
Schwartz International Textiles, Ltd. v.
Federal Trade Commission, 289 F.2d 665,
669, 129 USPQ 258, 260 (CCPA 1961)
(emphasis in original). ....
Here, for the reasons previously indicated, it is
clear from the record that respondent knew or at the very
least should have known the material fact that the "MISS ASIAN
WORLD BEAUTY PAGEANT" mark was the property of petitioner and
that respondent, rather than being the owner of the mark as
required by the statute, was instead under contractual
agreements with petitioner to produce beauty pageants under
such mark for petitioner, whose financial obligation extended
no further than endeavoring to secure sponsors and sell
tickets for the pageants. Respondent, nevertheless, willfully
claimed in the application which matured into the involved
registration to be the owner of the mark.
While the record does not reveal whether respondent
was aware, at the time it filed the underlying application for
its involved registration on August 1, 1995, of petitioner's
Cancellation No. 25,433
32
having authorized a third party on July 1, 1995 to sponsor or
conduct a beauty pageant for petitioner in 1996, it is clear
that relations between the parties had deteriorated, with
respondent having failed to provide petitioner with a final
accounting for the "MISS ASIAN WORLD BEAUTY PAGEANT" held on
June 17, 1995 by the contractually agreed date of July 2,
1995. Irrespective thereof, by falsely representing to the
Patent and Trademark Office under oath that it was the owner
of the "MISS ASIAN WORLD BEAUTY PAGEANT" mark, when in fact it
knew or at the very least should have known that it was not
the owner of such mark since its function was limited to
organizing and presenting for petitioner the fourth and fifth
pageants in a series of pageants conducted or authorized by
petitioner, respondent induced the Patent and Trademark Office
to issue the involved registration. Such registration was
accordingly procured by fraud.
Decision: The petition for cancellation is granted
and Reg. No. 1,995,350 will be canceled in due course.
G. D. Hohein
B. A. Chapman
G. F. Rogers
Cancellation No. 25,433
33
Administrative Trademark
Judges,
Trademark Trial and Appeal
Board