National Mill Industry, Inc.v.Ashley James dba Carnival Mode

Trademark Trial and Appeal Board

Jun 29, 2021

91252685 (T.T.A.B. Jun. 29, 2021)

June 29, 2021 al Opposition No. 91252685 National Mill Industry, Inc. v. Ashley James dba Carnival Mode Before Rogers, Chief Administrative Trademark Judge, and Taylor and English, Administrative Trademark Judges. By the Board: This case now comes up for consideration of the following: (1) Opposer’s motion (filed March 23, 2021) for discovery sanctions pursuant to Trademark Rule 2.120(h)(2);1 (2) Opposer’s combined motion (filed March 23, 2021) for leave to amend its notice of opposition to add a claim that Applicant made no bona fide use of her mark prior to the filing date of the use-based application and for summary judgment on that claim;2 and (3) Applicant’s cross-motion (filed March 31, 2021) for 1 21 TTABVUE. Citations to the record or briefs in this order also include citations to the publicly available documents on TTABVUE, the Board’s electronic docketing system. The number preceding “TTABVUE” corresponds to the docket entry number; the number(s) following “TTABVUE” refer to the page number(s) of that particular docket entry, if applicable. 2 22 TTABVUE. 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 is not a precedent of the TTAB. Opposition No. 91252685 2 summary judgment on Opposer’s likelihood of confusion claim.3 All the motions are fully briefed.4 We have carefully considered all of the parties’ arguments, presume the parties’ familiarity with the factual bases for their filings and do not recount the facts or arguments here except as necessary to explain this decision. See Guess? IP Holder LP v. Knowluxe LLC, 116 USPQ2d 2018, 2019 (TTAB 2015). I. Background Applicant seeks to register the composite mark CM CARNIVAL MODE, as shown below, for “Headbands against sweating; Lingerie; Shirts; Shorts; Sweat shirts; Sweaters; T-shirts; Tank tops; Beach cover-ups; Graphic T-shirts; Gym shorts; Hooded sweatshirts for men, women, and kids; Panties, shorts and briefs; Short sleeved or long-sleeved t-shirts” in International Class 25: 5 3 24 TTABVUE. 4 We acknowledge Applicant’s filing at 30 TTABVUE directing us to disregard her first filing of April 23, 2021. We will only consider the second filing (29 TTABVUE) she made on April 23, 2021. We note, however, that this filing includes a surreply to Opposer’s motions for leave to amend and for summary judgment along with a declaration from Applicant partially in support of her surreply. Surreplies are not permitted under the Board’s rules. Trademark Rule 2.127(a). Therefore, we only consider those portions of the filing and declaration which concern Applicant’s cross-motion for summary judgment. 5 Application Serial No. 88416188, filed May 5, 2019, pursuant to Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). The description of the mark is as follows: “The mark consists of the letters ‘CM’ connected in a stylish geometric format with six straight vertical lines positioned directly under the end of the letter ‘M’, the six straight vertical lines have different lengths diagonally, and the words ‘CARNIVAL MODE’ is positioned horizontally underneath the letters ‘CM’ in a stylized font.” Color is not claimed as a feature of the mark. Opposition No. 91252685 3 On December 4, 2019, Opposer filed a notice of opposition asserting likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), as the sole ground for opposition. In support of its 2(d) claim, Opposer pleaded prior common law rights in various marks consisting of or containing the word “CARNIVAL” for clothing, as well as ownership of a pending application and eight registrations, including, for example, the following:6  Registration No. 2020106, for the mark CARNIVAL, in typeset form,7 for “foundation garments” in International Class 25;8  Registration No. 4297862, for the mark CARNIVAL CREATIONS, in standard characters, for “clothing for use by women, namely, bras, panties, foundation garments, shapewear, namely girdles” in International Class 25;9  Registration No. 5249742, for the mark CARNIVAL INTIMATES, in standard characters, for “Women’s clothing, namely, bras, panties, foundation garments, shapewear, sleepwear and loungewear” in International Class 25;10  Registration No. 5527373, for the mark CARNIVAL FASHION, for “Women’s clothing, namely, dresses, skirts, overalls, jumpers, underwear, sleepwear and socks” in International Class 25.11 6 Opposer defines the marks which are the subjects of its eight registrations and pending application as the “CARNIVAL Family of Marks.” Notice of opposition ¶ 4; 1 TTABVUE 7. Opposer has not adequately pleaded a family of marks, because Opposer has not pleaded that the common characteristic is itself indicative of a common origin of the goods. See Wise F&I, LLC v. Allstate Ins. Co., 120 USPQ2d 1103, 1109 (TTAB 2016). However, we have no need to consider the issue in our disposition of the motions at hand. 7 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings. A typed or typeset mark is the legal equivalent of a standard character mark. See In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012). 8 Issued December 3, 1996, renewed. 9 Issued March 5, 2013, renewed. 10 Issued July 25, 2017. “INTIMATES” is disclaimed. 11 Issued July 31, 2018. “FASHION” is disclaimed. Opposition No. 91252685 4 On December 9, 2019, Applicant filed an answer to the notice of opposition denying the salient allegations therein.12 The Board denied Applicant’s motion for summary judgment on the likelihood of confusion claim in an order issued on July 28, 2020.13 Thereafter, Opposer filed a motion to compel which the Board denied without prejudice on November 10, 2020.14 In that order, the Board found that Opposer had failed to make the requisite good faith effort to resolve the issues in the motion prior to filing it in accordance with Trademark Rule 2.120(f)(1), 37 C.F.R. § 2.120(f)(1). II. Motion for Sanctions Opposer seeks an order prohibiting Applicant from introducing at trial any documents supporting her alleged use of her mark except to the extent that such documents were included in the production Applicant made on February 27, 2021 during the discovery period. Opposer argues that following the Board’s denial of its motion to compel, Opposer sent Applicant a detailed letter on January 21, 2021 explaining Applicant’s deficient responses and that Applicant served a response to such letter on February 27, 2021. Opposer states that it served a second set of document requests on Applicant on January 27, 2021 and that Applicant responded to these requests on February 27, 2021 by objecting to each request and not producing any responsive documents. In an email exchange between the parties on March 8, 2021, Opposer’s counsel requested that Applicant supplement her discovery responses, corroborate her claim 12 4 TTABVUE. 13 9 TTABVUE. 14 20 TTABVUE. Opposition No. 91252685 5 of sales of her goods, and provide documents in advance of Applicant’s scheduled deposition. Applicant indicated that: “All document requests information was rightfully submitted. No additional information will be provided by Wednesday, March 10, 2021. Thank you!”15 When asked to clarify the meaning of this statement, Applicant responded: “No I do not have any responsive documents to your unformalized ‘discovery requests’ via email….”16 Opposer asserts that Applicant has admitted in her response to Opposer’s requests for admissions that she sold all the clothing items recited in her application on May 5, 2019, but by her email statements has informed Opposer that she will not be supplementing her document production with any documentation concerning these alleged sales. Because of “Applicant’s refusal to produce responsive documents,”17 Opposer requests the following: 1. That Applicant be prohibited from introducing any evidence to substantiate her claim that she sold any clothing under the CARNIVAL MODE (and Design) trademark on or before May 5, 2019; and 2. That Opposer’s Requests for Admission be deemed admitted pursuant to Fed. R. Civ. P. 36(a) on the ground that Applicant did not serve a timely response and that her late-served responses be refused; and/or 3. In the alternative, in the event Applicant is allowed to supplement her discovery responses, that the discovery period (now set to close on March 24, 2021) be extended for Opposer, in order to allow Opposer time to conduct any necessary follow up discovery; and 15 21 TTABVUE 5, 102. 16 Id. 17 Id. at 5. Opposition No. 91252685 6 4. Such other and further relief as the Board deems just and proper.18 In response to Opposer’s arguments, Applicant argues that Opposer’s motion for sanctions is a “second unnecessary attempt that the Opposer has filed requesting the Board to prevent the Applicant from introducing evidence at trial” with the first being the motion to compel which was denied.19 Applicant further argues that she has “sent abundant discovery responses and production of documents to the Opposer with responses” and “has sent documents to the Opposer via email showing proof of the goods sold.”20 Applicant also argues that “[t]he Opposer is pretending that the Applicant is the ‘disobedient party’ who did not send any documents to the Opposer” but recounts how Opposer itself has not complied with Applicant’s discovery requests and did not timely respond to such requests.21 In reply, Opposer states that “Opposer is not seeking to prevent Applicant from introducing evidence at trial.”22 Rather, Opposer indicates that it “is now seeking to make the trial more efficient by holding Applicant to her word that she does not have any additional documentary proof, and ensuring that Applicant is allowed to rely only on the documents she produced during discovery with respect to the use of her trademark.”23 As an example, Opposer points out that the first exhibit in Applicant’s response brief includes “an image of a tag that says CARNIVAL MODE 18 Id. at 6-7. 19 24 TTABVUE 3. 20 Id. 21 Id. We do not construe Applicant’s lengthy recount of the deficiencies of Opposer’s discovery responses in her response to the motion for sanctions as a motion to compel. 22 26 TTABVUE 2. 23 Id. Opposition No. 91252685 7 that is not attached to any product, and that was not produced to Opposer during the discovery period.”24 Trademark Rule 2.120(h)(2), 37 C.F.R. §2.120(h)(2), provides, in pertinent part: … If a party … fails to provide any response to a set of interrogatories or to a set of requests for production of documents and things, and such party or the party’s attorney or other authorized representative informs the party seeking discovery that no response will be made thereto, the Board may make any appropriate order, as specified in paragraph (h)(1) of this section. Opposer’s motion for sanctions does not lie under Trademark Rule 2.120(h)(2) because Applicant has never specifically stated that she would not respond to Opposer’s discovery requests. In this case, Applicant served written responses and objections to Opposer’s requests, as well as some documents responsive to the first set of document requests. We do not read Applicant’s emailed responses to Opposer’s counsel referenced above as a refusal to provide discovery. Rather, such responses indicate that Applicant did not have additional documents to provide before the scheduled deposition was to take place. Because there has been no refusal to provide discovery, Trademark Rule 2.120(h)(2) is inapplicable. Opposer filed a motion to compel that was denied because of its failure to make a good faith effort to resolve with Applicant the issues presented in the motion. If Opposer continued to believe that Applicant’s responses to its discovery requests were inadequate, its remedy lied with filing another motion to compel after meeting the obligatory good faith effort required under Trademark Rule 2.120(f). In view thereof, Opposer’s motion for discovery sanctions is denied. 24 Id. at fn. 1. Opposition No. 91252685 8 III. Motion for Leave to Amend Opposer seeks to amend the notice of opposition by including a claim that the application is void ab initio because Applicant did not make bona fide use in commerce of the involved mark prior to the filing date of her use-based application. Specifically, Opposer seeks to add the following paragraphs to the notice of opposition: 11. Upon information and belief, Applicant did not make a bona fide use of Applicant’s Mark in U.S. commerce in connection with goods listed in the application prior to the filing of her use-based Application Serial No. 88/416,188. 12. Because Applicant did not make a bona fide use of the CARNIVAL MODE mark in commerce at the time of filing, the Application is void ab initio, pursuant to 15 U.S.C. § 1051(a), and the Application should be refused accordingly. In support of its motion, Opposer asserts that it now seeks to add this claim based on Applicant’s responses during discovery. Opposer argues that Applicant will not suffer undue prejudice from the addition of the claim and Applicant does not require discovery on such ground. In response, Applicant contends Opposer’s motion for leave is “not properly justified.”25 In reply, Opposer argues that Applicant “fails to include any reason why the Board shouldn’t allow the pleading to be amended in this case.”26 A party that seeks summary judgment on an unpleaded claim may simultaneously move to amend its pleading to assert the claim. TRADEMARK TRIAL 25 24 TTABVUE 23. 26 27 TTABVUE 3. Opposition No. 91252685 9 AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 528.07(a) (2021), and cases cited therein. The Board liberally grants leave to amend pleadings at any stage of a proceeding when justice so requires, unless entry of the proposed amendment would violate settled law or be prejudicial to the rights of the adverse party or parties. Trademark Rule 2.107(a), 37 C.F.R. § 2.107(a); Fed. R. Civ. P. 15; TBMP § 507.02. The timing of a motion to amend is an important factor in determining whether the non-movant would be prejudiced by allowing the proposed amendment. TBMP § 507.02(a), and cases cited therein. The motion should be filed as soon as the ground for the amendment becomes apparent. A long or unexplained delay in filing a motion for leave to amend may render the amendment untimely. See Int'l Fin. Corp. v. Bravo Co., 64 USPQ2d 1597, 1604 (TTAB 2002). The claim Opposer seeks to add is legally sufficient. Additionally, Applicant has not contended that she will be prejudiced by the new claim and we know of no reason why she would be prejudiced by such claim, particularly given that she should be in possession of all evidence relevant to the proposed claim. Also, Opposer filed its motion to amend promptly after learning the basis for the additional ground during the discovery process. In view thereof, Opposer’s motion for leave to file an amended notice of opposition is granted. The amended notice of opposition is now the operative pleading.27 27 Opposer filed a copy of its amended pleading with its motion. 22 TTABVUE 119-121. Opposition No. 91252685 10 IV. Opposer’s Motion for Summary Judgment A. The Parties’ Arguments Opposer argues that summary judgment on its nonuse claim is appropriate. Specifically, Opposer asserts that because Applicant’s admissions are deemed admitted under Fed. R. Civ. P. 36(a)(3) and because of the lack of documentary evidence produced by Applicant in discovery, there are no genuine disputes of material fact that Applicant did not use the mark on any of the goods identified in her application on or before May 5, 2019, the filing date of her use-based application. In evidentiary support of its motion, Opposer includes, inter alia, the following: (1) the declaration of its counsel, Stacy J. Grossman;28 (2) a copy of the TEAS application for the subject mark;29 (3) a copy of Applicant’s August 22, 2019 response to the Office Action and her substitute specimen;30 (4) a copy of Applicant’s February 27, 2021 responses to Opposer’s First Set of Requests for Admissions as well as Applicant’s first amended responses to the requests;31 (5) a copy of Applicant’s March 8, 2021 second amended responses to Opposer’s First Set of Requests for Admissions;32 (6) copies of Applicant’s March 9, 2020 responses to Opposer’s First Set of Interrogatories and Opposer’s First Set of Document 28 22 TTABVUE 20-23. 29 Id. at 25-31. 30 Id. at 33-37. 31 Id. at 39-68. 32 Id. at 70-82. Opposition No. 91252685 11 Requests;33 and (7) a copy of Applicant’s February 27, 2021 responses to Opposer’s Second Set of Document Requests.34 In addition, Opposer includes (1) an invoice for a t-shirt sold on August 17, 201935 and an invoice for a neck gaiter sold on July 24, 2020,36 both produced to Opposer by Applicant on February 27, 2021; (2) a copy of the March 8, 2021 email exchange between Opposer’s counsel and Applicant discussing, inter alia, Applicant’s production of additional documents before the scheduled deposition of Applicant37; (3) a print-out from the WhoIs database showing the date of creation of Applicant’s domain name www.CarnivalMode.com;38 and (4) a print-out of Applicant’s Facebook page showing that such page was created on June 12, 2019.39 In response to the motion, Applicant contends that Opposer “has no trustworthy evidence in their possession to establish…their [sic] newly inserted ‘no bona fide use’ claim against the Applicant’s CM CARNIVAL MODE trademark application.”40 Applicant further argues that the claim of lack of bona fide use “is substantially dishonest and fabricated.”41 33 Id. at 84-108. 34 Id. at 110-116. 35 Id. at 134. 36 Id. at 135. 37 Id. at 137-139. 38 Id. at 140-144. 39 Id. at 146-147. We observe that Opposer indicates that it also included as its Exhibit N a copy of a print-out from Applicant’s webpage on the ETSY.COM website showing the earliest customer review of Applicant’s goods was on July 22, 2019. Such exhibit does not appear in the record as filed. 40 24 TTABVUE 23-24. 41 Id. at 25. Opposition No. 91252685 12 As evidentiary support, Applicant attaches an excerpt from her webpage on the ETSY.COM website dated March 26, 2021.42 In reply, Opposer asserts that Applicant has not produced any documentary evidence that substantiates her claim that she used her mark for each of the goods identified in her application on or before May 5, 2019. Opposer points out that “Applicant has not demonstrated and cannot demonstrate use of her mark, in commerce, in connection with the goods described in her application, either at the time of filing her use-based application or thereafter.”43 B. Legal Standard A motion for summary judgment is a pretrial device intended to save the time and expense of a full trial when the moving party is able to demonstrate, prior to trial, that there is no genuine dispute of material fact, and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Opryland USA Inc. v. Great Am. Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992); and Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793 (Fed. Cir. 1987). The evidence on summary judgment is viewed in a light most favorable to the nonmoving party, and all reasonable inferences are drawn in the nonmovant’s favor. Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir. 1993). A factual dispute will be deemed genuine if, on the evidence of record, a reasonable fact finder could resolve the matter in favor of the nonmoving 42 24 TTABVUE 104-106. 43 27 TTABVUE 3. Opposition No. 91252685 13 party. See Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992). The Board does not resolve disputes of material fact on summary judgment; rather, the Board only ascertains whether disputes of material fact exist. See Univ. Book Store v. Univ. of Wis. Bd. of Regents, 33 USPQ2d 1385, 1389 (TTAB 1994); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (“at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”). Where, as here, the party moving for summary judgment on a claim bears the burden of proof at trial on that claim, the moving party “must lay out the elements of its claim, citing the facts it believes satisfies those elements, and demonstrating why the record is so one-sided as to rule out the prospect of the nonmovant prevailing.” 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE Civil § 2727.1 (4th ed. 2019). If the moving party is able to meet this initial burden of production, the burden shifts to the nonmoving party to demonstrate the existence of specific genuinely disputed facts that must be resolved at trial. The nonmoving party may not rest on mere allegations or assertions but must designate specific portions of the record or produce additional evidence showing the existence of a genuine dispute of material fact. See Venture Out Props. LLC v. Wynn Resort Holdings LLC, 81 USPQ2d 1887, 1890 (TTAB 2007). Should the nonmoving party fail to raise a genuine dispute of Opposition No. 91252685 14 material fact as to an essential element of the moving party’s case, judgment as a matter of law may be entered in the moving party’s favor. C. Entitlement to a Statutory Cause of Action Opposer’s entitlement to a statutory cause of action, formerly referred to as “standing” by the Federal Circuit and the Board,44 is an essential element in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, __S. Ct. __(2021).; Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief that the registration of Applicant’s mark is the proximate cause of damage to Opposer. Corcamore, 2020 USPQ2d 11277 at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982). Opposer submitted with its motion for summary judgment printouts from the USPTO’s TESS database showing the current status and title of its pleaded registrations. These registrations establish Opposer’s direct commercial interest and its entitlement to maintain this proceeding to oppose registration of Applicant’s 44 Our decisions have previously analyzed the requirements of Sections 1063 and 1064 under the rubric of “standing.” We now refer to this inquiry as entitlement to a statutory cause of action. Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting “standing” under §§ 1063 and 1064 remain applicable. Opposition No. 91252685 15 involved mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016). Thus, there is no genuine dispute as to Opposer’s entitlement to a statutory cause of action. D. Requests for Admission It is clear from the record that Applicant did not timely answer the requests for admission and has not requested withdrawal or amendment of the admissions under Fed. R. Civ. P. 36(b). Applicant’s responses to Opposer’s requests were due no later than February 26, 2021. One day after such deadline, Applicant served her responses. Fed. R. Civ. P. 36(a)(3) provides that a matter is admitted unless a response is timely served. Fed. R. Civ. P. 36(b) states that a matter admitted is conclusively established unless “the [Board] on motion permits the admission to be withdrawn or amended.” Applicant has given no reason for the untimely filing of her responses. She has neither moved to reopen her time to respond to the requests, Fed. R. Civ. P. 6(b)(2), nor moved to withdraw and amend her admissions pursuant to Fed. R. Civ. P. 36(b).45 Inasmuch as Applicant did not timely serve responses to Opposer’s requests for admission, nor file a motion to withdraw or amend those admissions, those matters are thus conclusively established. 45 The Board may not sua sponte treat admissions as withdrawn, or ignore admissions, without a motion to withdraw or amend if the time to respond has expired. See American Automobile Association v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 19 USPQ2d 1142, 1144 (5th Cir. 1991). Opposition No. 91252685 16 E. Analysis Based on the record now before us and for the reasons discussed below, we conclude that summary judgment is appropriate because Opposer has established that there are no genuine disputes issues of material fact remaining for trial with regard to its nonuse claim, and that it is entitled to a judgment on this ground. Under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), a mark may not be registered unless it is “used in commerce.” Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides that “[t]he term ‘use in commerce’ means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” In a use-based application, when at the time of application there was no use on any of the goods or services specified, the application and resulting registration is void. Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357, 90 USPQ2d 1301, 1305 (Fed. Cir. 2009) (“The registration of a mark that does not meet the use requirement is void ab initio.”). See also, Sinclair Oil Corp. v. Kendrick, 85 USPQ2d 1032, 1036 n.7 (TTAB 2007); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036 (TTAB 2012). Opposer has the initial burden of demonstrating the absence of a genuine dispute of material fact that Applicant had not used the mark on the identified goods as of the filing date of the application. The filing date of the subject application is May 5, 2019. Accordingly, Applicant must have used the mark on the goods on or before May 5, 2019. For purposes of summary judgment, the Board will deem a request for admission to be admitted if a copy of the request for admission and the admission, or a statement that the party Opposition No. 91252685 17 from which an admission was requested failed to respond thereto, is submitted. 37 C.F.R. § 2.127(e)(2). Thus, viewing the evidence of record, namely the admissions which are now deemed admitted, and any inferences which may be drawn from the underlying undisputed facts in the light most favorable to Applicant, Opposer has established Applicant was not using her mark on the identified goods on or before the filing date of her application. In addition to these admissions, Opposer states that Applicant did not produce any documents showing use of the mark prior to the filing date. Rather, Opposer indicates that Applicant only produced (a) an invoice for a t-shirt sold on August 17, 2019, a date subsequent to the filing date and (b) an invoice for a neck gaiter sold on July 24, 2020, again months after the filing date and for an item that is not identified in the subject application. Applicant does not contest the contention that she did not produce any other documents showing use. In fact, the only document submitted as evidence in support of her brief in opposition to the present motion is an excerpt from her webpage on the ETSY.COM website showing the sale of her goods and her mark. Yet, such excerpt is dated March 26, 2021, more than one year after the filing date at issue. Opposer has also proffered evidence concerning Applicant’s domain name and Facebook page. These documents indicate that Applicant’s domain www.Carnival Mode.com was not registered until May 9, 2019, three days after the application’s filing, and Applicant’s Facebook page was not created until over a month later on Opposition No. 91252685 18 June 12, 2019.46 Applicant has failed to respond to Opposer’s queries regarding such evidence in her brief. Similarly, she has failed to proffer any countering evidence which establishes that she was in fact using the mark on or prior to the filing date of her application. Taken as a whole, the record is devoid of any documentary evidence of invoices, price lists, website excerpts, point of sale materials, sales records or any other documents to substantiate Applicant’s claim of use of the mark prior to the filing date of her application. Accordingly, we find that there is no genuine dispute of material fact that the subject application is void ab initio due to nonuse on or before the filing date of the application. We therefore grant Opposer’s motion for summary judgment. Having reached this decision, we need not consider Applicant’s cross-motion for summary judgment on the likelihood of confusion claim. Judgment is entered against Applicant, the opposition is sustained, and registration of Applicant’s mark is refused. 46 24 TTABVUE 104-106