NH Beach Pizza, LLCv.Cristy’s Pizza Inc.

Trademark Trial and Appeal Board

Nov 20, 2015

No. 92058955 (T.T.A.B. Nov. 20, 2015)

Mailed: November 20, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

NH Beach Pizza, LLC
v.
Cristy’s Pizza Inc.
_____

Cancellation No. 92058955
_____

Patrick D. Archibald
for NH Beach Pizza, LLC.
Steven E. Grill of Devine Millimet & Branch
for Cristy’s Pizza Inc.
_____
Before Quinn, Cataldo and Ritchie,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
NH Beach Pizza, LLC (Petitioner), seeks to cancel Cristy’s Pizza Inc.’s
(Respondent) Registration No. 4503226, issued on the Principal Register for the
mark BEACH PIZZA (standard characters, “PIZZA” disclaimed) for “pizza” in
International Class 30.1

1 Issued on March 25, 2014.
This Opinion is not a
Precedent of the TTAB
Cancellation No. 92058955

- 2 -
As grounds for cancellation, Petitioner alleges that BEACH PIZZA is generic as
applied to “pizza;” that in the alternative, BEACH PIZZA is merely descriptive of
“pizza” and has not acquired secondary meaning; and that Respondent committed
fraud in obtaining its registration for BEACH PIZZA.2 In its answer, Respondent
denied the salient allegations of the petition for cancellation.3
A. Evidentiary Objections
Respondent has objected to certain evidence introduced by Petitioner. Specifically,
Respondent objects to Exhibits 5, 7-11 to Petitioner’s notice of reliance.4
Respondent objects to Exhibit 5 and 8 on the ground of relevance and also
interposes relevance among its objections to Exhibits 7, 10 and 11.5 The Board is
capable of weighing the relevance and strength or weakness of the objected-to
evidence in the cases litigated before us, including any inherent limitations, and
this precludes the need to strike the evidence in question. Ultimately, except as
otherwise noted below, we have considered the entire record, keeping in mind
Respondent’s objections, and have accorded the evidence whatever probative value
it merits.

2 1 TTABVUE 1-5. Citations to the record are to TTABVUE, the docket history system for
the Trademark Trial and Appeal Board. See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473,
1476 n.6 (TTAB 2014).
Petitioner asserted additional grounds for cancellation but did not pursue them at trial.
Accordingly, they are deemed waived. See, e.g., Knight Textile Corp. v. Jones Investment
Co., 75 USPQ2d 1313, 1314 n.4 (TTAB 2005).

3 4 TTABVUE 1-4.

4 12 TTABVUE and 19 TTABVUE.

5 Respondent raised its objection to Exhibit 8 in its original motion to strike (12 TTABVUE)
but did not continue the objection in its renewed motion to strike (19 TTABVUE). To the
extent Respondent intended to continue its objection, we consider it here.
Cancellation No. 92058955

- 3 -
Respondent objects to Exhibit 7, a copy of a printed article, on several grounds,
including that the article is illegible. We agree with Respondent that the quality of
the article is such that it is nearly impossible to discern its content beyond the
headlines, photographs and advertisements. Simply put, the article is too blurry to
see many of the details contained therein. As such, we can give this article little, if
any, probative value on the issues before us in this case. See, e.g., Hard Rock Café
Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1404 (TTAB 1998) (“It is [a party’s]
responsibility to review documents it submits as evidence to ensure that such
submissions meet certain basic requirements, such as that they are legible ... .”).
Respondent objects to Exhibit 9, a handwritten, unverified statement submitted
as the “testimony” of Mr. Marco Ribeiro on numerous grounds, including that it was
neither noticed nor taken in the proper format. We agree. Under our present rules,
parties may only introduce testimony by declaration or affidavit upon written
stipulation. Trademark Rule 2.123 (b); 37 C.F.R. § 2.123(b). There is no indication
that the parties to this proceeding have so stipulated. The “testimony” in question is
simply an unverified statement from a third party that does not conform to our
rules of practice and, in any event, appears to have little, if any, probative value.
Respondent objects to Exhibits 10 and 11, printed copies of reviews of Respondent
and a third party from the Internet website Yelp, on the ground that they are
impermissible hearsay. Trademark Rule 2.122(e) involves printed publications and
official records and, generally, provides that they may be introduced in evidence by
filing a notice of reliance. In Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031
Cancellation No. 92058955

- 4 -
(TTAB 2010), the Board liberalized the practice and interpretation of Rule 2.122(e)
by “expanding the types of documents that may be introduced by notice of reliance
to include not only printed publications in general circulation, but also documents
such as [printouts from] websites, advertising, business publications ... prepared for
or by a party or non-party, if, and only if, they can be obtained through the Internet
as publicly available documents.” Safer at 1039. The Yelp reviews clearly are
publicly available, are dated and provide the URL indicating their source. As such,
they may be introduced by notice of reliance. We hasten to add, however, that the
reviews have limited probative value inasmuch they are admissible solely for what
they show on their face. They cannot be considered to prove the truth of any matter
stated therein. See, e.g., 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1717 n.2
(TTAB 2007) (materials made of record by notice of reliance under 37 C.F.R.
§ 2.122(e) not admissible for the truth of the matters contained therein, unless a
competent witness has testified to the truth of such matters); Midwest Plastic
Fabricators Inc. v. Underwriters Laboratories Inc., 12 USPQ2d 1267, 1270 n.5
(TTAB 1989) (annual report in evidence only for what it showed on its face), aff'd,
906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990). As such, Internet printouts are
admissible to show not the truth of their content but rather the consumer
perception thereof.
B. The Record
In light of the foregoing, the record consists of the pleadings and the file of the
involved registration. Trademark Rule 2.122; 37 C.F.R. § 2.122. In addition,
Cancellation No. 92058955

- 5 -
Petitioner submitted by notice of reliance the following materials not excluded
above:
A Printed copy of an article from Boston Globe regarding a third party (Tripoli
Bakery);”
Printouts from Respondent’s Facebook page (Facebook.com);
Respondent’s answers to Petitioner’s written discovery requests;
Printed copies of reviews from Yelp (yelp.com/biz) of Respondent and third party
Tripoli Bakery; and
A copy of Respondent’s Business Entity Summary from the Commonwealth of
Massachusetts Corporations Division Business Entity Corporate records.6
Respondent submitted by notice of reliance the following materials:
Photographs submitted with Respondent’s answers to Petitioner’s Interrogatory
Nos. 4, 5 and 12 but not introduced into the record by Petitioner;
Copies of Respondent’s Food Establishment Permit Application submitted to the
town of Salisbury, Massachusetts for its services under the BEACH PIZZA mark;
Copies of printed advertisements for Respondent’s goods under its BEACH PIZZA
mark;
Copies of printouts from tripadvisor.com showing a photograph of Respondent’s
use of its involved mark; and

6 Petitioner submitted an additional copy of the file of Respondent’s involved registration
with its notice of reliance. As discussed above, the file of the involved registration
automatically forms part of the record in this proceeding, and Petitioner’s resubmission
thereof with its notice of reliance was duplicative and unnecessary.
Cancellation No. 92058955

- 6 -
A printed copy of an article from wikitravel.org regarding Salisbury,
Massachusetts.
C. Petitioner’s Standing
Standing is a threshold issue that must be proved in every inter partes case.
Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189
(CCPA 1982). In order to meet the standing requirement, a plaintiff need only show
that it has a real interest, i.e., a personal stake, in the outcome of the proceeding.
See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir. 1999); and
Jewelers Vigilance Committee, Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d
2012, 2023-24 (Fed. Cir. 1987).
The purpose of the standing requirement, which is directed solely to the interest
of the plaintiff, is to prevent litigation when there is no real controversy between
the parties. In the case of a cancellation proceeding, the standing requirement has
its basis in Section 14 of the Trademark Act which provides in relevant part that
“[a]ny person who believes that he is or will be damaged … by the registration of a
mark upon the principal register” may file upon payment of the prescribed fee, a
petition to cancel stating the grounds therefor. 15 U.S.C. § 1064. Our primary
reviewing court, the U.S. Court of Appeals for the Federal Circuit, has enunciated a
liberal threshold for determining standing, namely that a plaintiff must
demonstrate that he possesses a “real interest” in a proceeding beyond that of a
mere intermeddler, and “a reasonable basis for his belief of damage.” See Ritchie v.
Simpson, 50 USPQ2d at 1025-26. A “real interest” is a “direct and personal stake”
Cancellation No. 92058955

- 7 -
in the outcome of the proceeding. Id. at 1026. “The facts regarding standing … are
part of a petitioner’s case and must be affirmatively proved. Accordingly,
[petitioner] is not entitled to standing solely because of the allegations in its
petition.” Lipton Industries, 213 USPQ at 189. See also Ritchie v. Simpson, 50
USPQ2d at 1027.
In its petition for cancellation, Petitioner alleges that
Petitioner will be damaged should it be prevented from using the
generic term “beach pizza” in the advertising of its goods, and has
received claims of likelihood of confusion with the mark by Registrant.7

However, the petition to cancel does not contain any further allegations regarding
the nature of Petitioner’s business or the goods with which it uses or intends to use
the term “beach pizza.” Further, Petitioner does not explain, either in its petition to
cancel or otherwise, the nature of the asserted “claims of likelihood of confusion”
with Respondent’s mark. Respondent’s answer to the petition for cancellation does
not include any admissions regarding Petitioner’s alleged business activities or
Petitioner’s interest in the mark BEACH PIZZA.
In its brief, Petitioner argues:
Petitioner NH Beach Pizza is in the business of selling pizza, is a
competitor of Registrant Cristy’s, and is in the position to use BEACH
PIZZA in a generic or descriptive manner, as can be readily seen by its
trade name. The two companies compete in the market place and sell
identical or similar goods, and as such NH Beach Pizza has standing to
challenge the registration.8

7 1 TTABVUE 3.

8 17 TTABVUE 6-7.
Cancellation No. 92058955

- 8 -
In its brief, Respondent does not directly challenge Petitioner’s standing.
Respondent’s only discussion of Petitioner or its asserted business activities is as
follows:
Petitioner, NH Beach Pizza, LLC, describes itself as being in the
business of selling pizza and as being a competitor to Cristy’s. (#17
Pet’r Tr. Br. at 5-6.) Petitioner filed its Petition to Cancel on April 2,
2014, asserting that Cristy’s trademark registration for BEACH PIZZA
should be canceled because it is both generic and merely descriptive
(while lacking secondary meaning) and because Cristy’s procured the
trademark through fraud. (#1 Pet’r Pet. to Cancel ¶¶ 1-6.) Remarkably,
however, Petitioner’s owner and attorney of record had themselves
sought a registration for the mark NEW ENGLAND BEACH STYLE
PIZZA, which they later abandoned. (TESS Serial No. 86212085.)9

However, Respondent does not acknowledge that Petitioner is a competitor or has
engaged in its asserted business activities, and neither party introduced any
testimony or evidence regarding Petitioner’s asserted trademark application. The
Board does not take judicial notice of applications or registrations; they must be
proved by competent evidence. See, e.g., In re Johnathan Drew Inc., 97 USPQ2d
1640, 1644 n. 11 (TTAB 2011) (stating that “the Board’s well-established practice is
not to take judicial notice of registrations that reside in the USPTO”); Beech
Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1293 (TTAB 1986) (“[W]e
do not take judicial notice of application and registration files that reside in the
Patent and Trademark Office on the basis of their mere identification in briefs,
pleadings and evidentiary submissions.”).10 Furthermore, the asserted application

9 18 TTABVUE 8.

10 In In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681 (Fed Cir. 2010), the
Court of Appeals for the Federal Circuit exercised its discretion to take judicial notice of a
third party’s registration. However, the Board’s well-established practice is not to take
Cancellation No. 92058955

- 9 -
was not properly made of record and, in any event, is alleged to have been
abandoned. Cf. L’Oréal S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.6 (TTAB 2012);
Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1192 n.6, 1193-94 nn.8 & 9
(TTAB 2007). Thus, none of Respondent’s statements in its brief, either individually
or as a whole, support Petitioner’s assertion of its standing. Petitioner does not
address standing in its reply brief.
In addition, as noted above, we have no testimony from either party in this case.
We must therefore examine the remaining evidence submitted by Petitioner under
notice of reliance to ascertain whether Petitioner has proven its standing to bring
the instant cancellation against Respondent’s registered mark BEACH PIZZA for
“pizza.”
Exhibits 1-4 to Petitioner’s notice of reliance consist of the file of Respondent’s
involved registration. These exhibits make no mention of Petitioner, any trademark
registration or application owned by Petitioner, or its asserted business activities.
Exhibit 5, a Boston Globe article, discusses the activities of a third party, Tripoli
Bakery, but makes no mention of Petitioner. Nor does Petitioner allege that it is in
privity with or otherwise related to Tripoli Bakery such that the activities of the
latter would inure to Petitioner’s benefit.
Exhibit 6 consists of screenshots from Respondent’s Facebook webpage and makes
no mention of Petitioner.

judicial notice of Office records. See Trademark Board Manual of Procedure (TBMP) §
1208.02 (2015) and authorities cited therein.
Cancellation No. 92058955

- 10 -
Exhibit 8 consists of Respondent’s answers to Petitioner’s interrogatories and
requests for production. Petitioner’s request for production of documents No. 2
requested “All documents relating to actual confusion between you or any of your
products and services, and Petitioner or any of its products or services.”11
Respondent’s answer consisted of objections to the request, and did not acknowledge
any of Petitioner’s asserted business activities and did not indicate that any such
documents exist. None of the remaining discovery requests address Petitioner’s
asserted business activities, and none of Respondent’s answers admit or otherwise
provide evidence regarding such activities.
Exhibits 10 and 11 consist of printouts from the Internet website Yelp and include
reviews of Respondent and third party Tripoli Pizza. These exhibits make no
mention of Petitioner or its asserted business activities.
Exhibit 12 is a document submitted by Respondent regarding its Business Entity
Summary retrieved from the Commonwealth of Massachusetts Corporations
Division Business Entity Corporate database. This document makes no mention of
Petitioner.
Additionally, even if we consider Petitioner’s evidence excluded above, none of it
supports Petitioner’s allegations regarding its standing. Exhibit 7 is a mostly
illegible copy of an article from The Andovers. To the extent its content may be
discerned, the article discusses third party Tripoli Bakery and makes no mention of
Petitioner. With regard to excluded Exhibit 9, in its notice of reliance, Petitioner
states as follows:

11 10 TTABVUE 76. The reference to Exhibit 8 appears to be a typographical error.
Cancellation No. 92058955

- 11 -
9. Petitioner relies on testimony from Marco Ribeiro, past employee of
Registrant and current employee of Petitioner, and submits a copy as
Exhibit 8.12

However, Mr. Ribeiro’s statement only discusses his past employment with
Respondent, and makes no mention of any of Petitioner’s asserted business
activities.
Finally, none of the evidence submitted by Respondent with its notice of reliance
discusses Petitioner or any of its asserted business activities.
We note in addition that even if any of the printed publications made of record by
Petitioner discussed its business activities, such evidence would not be admissible
for the truth of the matters asserted therein. See Syngenta Crop Protection Inc. v.
Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.7 (TTAB 2009) (printed publications made
of record by notice of reliance are admissible and probative only for what they show
on their face, not for the truth of the matters contained therein, unless a competent
witness has testified to the truth of such matters). See also 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1717 n.2 (TTAB 2007) (materials made of record by
notice of reliance under Trademark Rule 2.122(e) not admissible for the truth of the
matters contained therein, unless a competent witness has testified to the truth of
such matters); Midwest Plastic Fabricators Inc. v. Underwriters Laboratories Inc.,
12 USPQ2d 1267, 1270 n.5 (TTAB 1989) (annual report in evidence only for what it
showed on its face), aff’d, 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990). The rule
against hearsay mandates that an out-of-court statement cannot be offered as
evidence of the truth of the matter asserted in that statement. Insofar as none of

12 9 TTABVUE 3.
Cancellation No. 92058955

- 12 -
the exceptions to the hearsay rule apply, we would not consider such submissions to
prove the truth of any matter stated therein.
The record is utterly devoid of any evidence concerning the nature of Petitioner’s
commercial activities and its interest in Respondent’s registered BEACH PIZZA
mark. “Proof of standing in a Board proceeding is a low threshold.” Syngenta, 90
USPQ2d at 1118. Petitioner could have submitted testimony or competent
documentary evidence as to its asserted need to use the term “beach pizza” and
nature of its business activities to establish its standing. See, e.g., Panda Travel Inc.
v. Resort Option Enterprises Inc., 94 USPQ2d 1789, 1793 (TTAB 2009) (testimony
that opposer has used the mark PANDA TRAVEL continuously since June 1981 to
identify its travel agency services sufficient to prove standing to bring Section 2(d)
claim); Automedx Inc. v. Artivent Corp., 95 USPQ2d 1976, 1978 (TTAB 2010)
(testimony that opposer has been manufacturing and selling portable ventilators
sufficient to prove standing to bring 2(d) claim). Petitioner neglected to do so. Thus,
on the record before us, Petitioner has failed to establish a “real interest” and
“reasonable belief in damage.”
Accordingly, the cancellation proceeding is dismissed for Petitioner’s lack of
standing. See, e.g., Lumiere Productions, Inc. v. International Telephone and
Telegraph Corp., 227 USPQ 892, 893 (TTAB 1985).