Niche Audio, Inc.v.Munro Investment Group Pty Ltd

Trademark Trial and Appeal Board

Sep 29, 2018

No. 91228347 (T.T.A.B. Sep. 29, 2018)

This Opinion is Not a
Precedent of the TTAB

Hearing: June 12, 2018 Mailed: September 29, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Niche Audio, Inc.
v.
Munro Investment Group Pty Ltd
_____

Opposition Nos. 91228347 and 91228348
_____

Robert Mallinckrodt of Thorpe North & Western, L.L.P.,
for Niche Audio, Inc.
John M. Griem Jr. of Carter Ledyard & Milburn LLP,
for Munro Investment Group Pty Ltd.
_____

Before Taylor, Heasley and Larkin,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Munro Investment Group Pty Ltd. (“Applicant”) seeks registration on the
Principal Register of the standard character mark MAJESTIC1 and the word and

1 Application Serial No. 86705378 was filed on July 27, 2015, based upon Applicant’s claim of
first use anywhere in the year 2000 and use in commerce since at least as early as the year
2003.
Opposition Nos 91228347 and 91228348
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design mark ,2 both for the following identified goods:
Eco home, solar home, recreational vehicle home and marine electronic
entertainment systems comprising video screens, DVD players, speakers,
subwoofers and tweeters, TV and AM/FM antennas, amplifiers, electric
power supplies, electric battery chargers comprising power connections,
battery and DC to AC power inverters sold as a unit therewith; music
systems comprising video screens, DVD players, speakers, subwoofers and
tweeters, TV and AM/FM antennas, amplifiers, electric power supplies,
electric battery chargers comprising power connections, battery and DC to
AC power inverters sold as a unit therewith that are specially adapted for
marine use and use in eco homes, solar homes, and recreational vehicles;
loudspeaker systems; earphones, headphones, microphones, power
amplifiers, recorders, tuners, record players, tape recorders, transceivers,
DVD players and recorders that are specially adapted for marine use and use
in eco homes, solar homes, and recreational vehicles; compact disc players;
LCD and plasma type monitors and televisions; apparatus for the recording
and reproduction of audio and video that are specially adapted for marine
use and use in eco homes, solar homes, and recreational vehicles; eco home,
solar home, recreational vehicle home and marine theatre systems
comprising video screens, DVD players, speakers, subwoofers and tweeters,
TV and AM/FM antennas, amplifiers, electric power supplies, electric battery
chargers comprising power connections, battery and DC to AC power
inverters sold as a unit therewith; video disc players that are specially
adapted for marine use and use in eco homes, solar homes, and recreational
vehicles; video disc players that are specially adapted for marine use and use
in eco homes, solar homes, and recreational vehicles; computer hardware and
accessories that are specially adapted for marine use and use in eco homes,
solar homes, and recreational vehicles, namely, keyboards, printers,
monitors, sound systems comprising video screens, DVD players, speakers,
subwoofers and tweeters, TV and AM/FM antennas, amplifiers, electric
power supplies, electric battery chargers comprising power connections,
battery and DC to AC power inverters sold as a unit therewith, and batteries
in International Class 9.3

2 Application Serial No. 86705674 was filed on July 27, 2015, based upon Applicant’s claim
of ownership of Australian registration no. 925563 and of first use anywhere in the year 2000
and use in commerce since at least as early as the year 2003. The description of the mark
states that the mark consists of the word MAJESTIC in a stylized font with double horizontal
lines extending from the letter T.
3 14 TTABVUE 2.
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Niche Audio, Inc. (“Opposer”) opposes the applications under Section 2(d) of the
Trademark Act, alleging that Applicant’s marks, as used on its identified goods, so
resemble Opposer’s common law mark MAJESTIC, as used on car audio products, as
to be likely to cause confusion or mistake, or to deceive. 15 U.S.C. §§ 1052(d), 1063.4
Applicant has denied the salient allegations of the Notices of Opposition.5 The two
opposition proceedings have been consolidated, with Opposition No. 91228347
designated as the parent proceeding.6 The oppositions are fully briefed and counsel
for the parties appeared at a hearing before the panel on June 12, 2018. We dismiss
the oppositions.
I. Evidentiary Record

The record consists of:

• The pleadings;
• The files of the subject applications;7
• Opposer’s testimony declaration, with exhibits, of Virginia Leff, a former
member of Micgin LLC, a California limited liability company;

4 Notice of Opposition, 1 TTABVUE in Opposition Nos. 91228347 and 91228348.
5 Answer, 4 TTABVUE in Opposition Nos. 91228347 and 91228348. Applicant’s Answers
raised the affirmative defenses of waiver, estoppel, laches, acquiescence, and unclean hands.
Answer, ¶ 7, 4 TTABVUE 3. These pleaded affirmative defenses are waived because
Applicant did not pursue them in its brief. See Kemi Organics, LLC v. Gupta, 126 USPQ2d
1601, 1602 n. 5 (TTAB 2018). Applicant’s answer also raised issues regarding Opposer’s
standing and putative abandonment of its mark. Answer ¶¶ 7-8, 4 TTABVUE 3. Both issues
are addressed in this decision.
6 Order, 8 TTABVUE. Unless otherwise stated, all TTABVUE citations are to Opposition No.
91228347.
7 See Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).
Opposition Nos 91228347 and 91228348
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• Opposer’s testimony declaration, with exhibits, of Jennifer Hill, office manager
for Opposer and for Rabadi & Sons, Inc.;
• Opposer’s testimony declaration, with exhibits, of Hayil Rabadi, president of
Opposer and of Rabadi & Sons, Inc.;
• Opposer’s testimony declaration, with exhibits, of Robert Mallinckrodt, counsel
for Opposer;
• Opposer’s notice of reliance, covering copies of USPTO Trademark Electronic
Search System (“TESS”) records of seven third-party registrations, website
screen shots from www.12VoltNews.com, a copy of the JVC 2017 Mobile
Entertainment Catalog, screenshots from www.JVC.com, www.Kenwoodcom,
www.Clarion.com, and the USPTO Trademark Status & Document Retrieval
(“TSDR”) record of Applicant’s previous application Serial No. 78809282 for
registration of MAJESTIC in stylized letters, filed in February 2006 and
abandoned the following year, with copies of the two Office Actions refusing
registration of that mark based on Opposer’s then-subsisting Registration
2755519 for MAJESTIC in standard characters, which was cancelled on March
28, 2014;
• Applicant’s testimony declaration of David Anderson, President of Majestic
Global USA, distributor of Applicant’s MAJESTIC branded products;
• Applicant’s testimony declaration, with exhibits, of Rick French, a sales
representative of GSW & Associates who has been selling a variety of products
to the Marine Industry over 30 years, and since May 2009 has been
Opposition Nos 91228347 and 91228348
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representing and selling Applicant’s MAJESTIC products;
• Applicant’s testimony declaration, with exhibits, of Fidencio Platt, president of
Dantronics, an importer and wholesaler of marine electronics, including
Applicant’s MAJESTIC brand marine electronics;
• Applicant’s testimony declaration, with exhibits, of Tony Munro, founder and
creator of the MAJESTIC range of products beginning in 2000 in Australia,
and currently the Chief Executive Officer and Chief Electronics Engineer of
MAJESTIC products for Majestic Global USA, which distributes Applicant’s
products in this country;
• Applicant’s first notice of reliance, covering the exhibits attached to the Munro
declaration, specifically, a screen shot from the Australian intellectual
property website www.IPAustralia.gov.au, relating to Applicant’s Australian
registration of the MAJESTIC mark; screen shots from www.WebArchive.org
showing MAJESTIC products offered for sale by Dantronics Inc. between
February 11, 2003 and March 20, 2005; screen shots from
www.WebArchive.org showing MAJESTIC products offered for sale by
Majestic Global USA between June 23, 2005 and June 28, 2017; printed pages
from www.CarBatteryWorld.com and similar sites explaining the differences
between car batteries and marine and recreational vehicle batteries; printed
pages from www.DSMT.com showing how waterproofing is measured for
marine electronics, unlike car electronics; Copy of marketing materials from
Applicant’s two distributors in the United States, Dantronics Inc. and Majestic
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Global USA regarding MAJESTIC products sold in the United States since
2002; and
• Applicant’s second notice of reliance, consisting of screen shots from the
website www.Haw-Creek.com, screen shots from the website RVIA.org, the
Recreational Vehicle Industry Association’s website, screen shots from the
websites of three marine product distributors, www.Defender.com,
www.CWRElectronics.com, and www.Seawide.com, showing Applicant’s
MAJESTIC products being sold by these distributors; screen shots from the
websites of six speaker and stereo manufacturers; evidence relating to
Opposer’s Internet website registration and activity; screen shot of Wells Audio
website showing a home audio product offered under the designation
MAJESTIC; the TSDR file for MAJESTIC mark Application Serial No.
78414302; and certain of Opposer’s responses to Applicant’s written discovery
requests.8
II. Standing

Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); 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 (CCPA 1982). Any person
who believes it is or will be damaged by registration of a mark has standing to file an

8 14-29 TTABVUE.
Opposition Nos 91228347 and 91228348
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opposition. Trademark Act Section 13, 15 U.S.C. § 1063. To establish standing in an
opposition, a plaintiff must show both a real interest in the proceeding as well as a
reasonable belief of damage. Empresa Cubana Del Tabaco v. Gen. Cigar, 111 USPQ2d
at 1062; Ritchie v. Simpson, 50 USPQ2d at 1025. In this case, Opposer has presented
evidence, including the declaration testimony of Ms. Leff and Mr. Rabadi, supporting
Opposer’s claim of common law rights in the mark MAJESTIC, which it alleges is
confusingly similar to Applicant’s marks, as used on goods similar to Applicant’s. In
view thereof, we find Opposer has established its personal interest in this proceeding
and a reasonable belief of damage, and thus has proven its standing. Giersch v.
Scripps Networks, Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (“Petitioner has
established his common-law rights in the mark …, and has thereby established his
standing to bring this proceeding.”); Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90
USPQ2d 1112, 1118 (TTAB 2009) (in opposition proceeding under Section 2(d),
testimony that opposer uses its mark “is sufficient to support opposer’s allegations of
a reasonable belief that it would be damaged by registration of applicant’s mark.”).
III. Priority
“In an opposition founded on section 2(d), the opposer must establish its own prior
proprietary rights in the same or a confusingly similar designation in order to defeat
the application.” T.A.B. Sys. v. Pactel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881
(Fed. Cir. 1996). Section 2(d) challenges may be based either on ownership of a
registered mark (which is not implicated here) or prior use of an identical or similar
mark. Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 n.8 (TTAB 2015); see also
Opposition Nos 91228347 and 91228348
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Herbko Int’l., Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed.
Cir. 2002), cited in Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1658 (TTAB
2014).
Because Opposer has not pleaded ownership of a subsisting registration, it must
rely on its common law use to establish priority. Giersch v. Scripps, 90 USPQ2d at
1023. “[T]o the extent opposer wishes to rely on its common law rights, it must
establish priority with respect to such rights. That is, opposer must prove by a
preponderance of the evidence that its common law rights were acquired before any
date upon which applicant may rely.” Embarcadero Techs., Inc. v. RStudio, Inc., 105
USPQ2d 1825, 1834 (TTAB 2013) (citing Hydro-Dynamics Inc. v. George Putnam &
Co. Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (The “decision as to
priority is made in accordance with the preponderance of the evidence”)).
A. Applicant’s First Use in Commerce
Applicant contends that it “has sold MAJESTIC products in the United States
since October, 2002 when it made its first shipment to Dantronics,” its distributor.9
Because its applications state that it first used the MAJESTIC marks in commerce
in the United States in the year 2003,10 Applicant was obliged to submit clear and
convincing proof of the earlier date. Hydro-Dynamics v. George Putnam & Co., 1
USPQ2d at 1773-74 (clear and convincing evidence of earlier date required); accord

9 Applicant’s brief p. 10, 32 TTABVUE 11.
10 See TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 903.06 (Oct. 2017) (“When
only a year is given, the date presumed for purposes of examination is the last day of the
year.”).
Opposition Nos 91228347 and 91228348
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Martahus v. Video Duplication Servs. Inc., 27 USPQ2d 1846, 1852 n.7 (Fed. Cir.
1993); Moreno v. Pro Boxing Supplies, Inc., 124 USPQ2d 1028, 1035 n.35 (TTAB
2017).
Applicant satisfied this heightened burden of proof with testimonial and
documentary evidence. Its founder, Tony Munro, testified in his declaration that
“MAJESTIC products have been sold throughout the U.S. Marine and RV industry
since 2002,” beginning with a shipment to its U.S. distributor, Dantronics, in October
2002.11 The president of Dantronics, Fidencio Platt, confirmed that “Tony Munro
shipped a sample product to me which I approved of, and in 2003 Dantronics began
importing and distributing MAJESTIC televisions from Australia.”12 Beginning in
early 2003, according to both witnesses, Dantronics advertised and offered
Applicant’s MAJESTIC electronic products for sale online, as evidenced by
Dantronics.com website screen captures from February 11, 2003 through 2005.13 Mr.
Platt testified that “I can confirm these web pages accurately show the MAJESTIC
products we were distributing at those times.”14 Applicant also adduced confidential
figures of its sales to Dantronics from fiscal year 2003 (its fiscal year beginning July
1, 2002) through 2007, showing continuous sales of Applicant’s MAJESTIC electronic

11 Testimonial declaration of Tony Munro ¶ 4, 26 TTABVUE 3.
12 Testimonial declaration of Fidencio Platt ¶ 3, 25 TTABVUE 2-3.
13 Munro decl. ¶¶ 4-5, 26 TTABVUE 3-4; Ex. C to Munro decl., 26 TTABVUE 17-66, 77-79,
252-257; Ex. A to Platt decl., Wayback Machine screen captures showing Dantronics.com
offering MAJESTIC products for sale from Feb. 11, 2003, on, 25 TTABVUE 2-3, 6-55;
Applicant’s first notice of reliance, ¶¶ 2, 6 and exhibits, 28 TTABVUE 2-4, 8-57.
14 Platt decl. ¶3, 25 TTABVUE 2-3.
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goods to Dantronics.15 “After being shipped into the United States, these products
were then resold by Dantronics at a markup,” Mr. Munro testified.16 From January
2008 to the present, Majestic Global USA, an affiliate of Applicant, has sold the
MAJESTIC line of products into the United States.17 This evidence is uncontroverted.
This testimony and documentation, taken together, suffice to establish by clear
and convincing evidence that Applicant’s first use took place in October 2002.
Applicant’s shipment of its MAJESTIC brand goods to its U.S. distributor,
Dantronics, establishes first use in October 2002. See First Niagara Ins. Brokers Inc.
v. First Niagara Fin. Grp., 476 F.3d 867, 81 USPQ2d 1375, 1378 (Fed. Cir. 2007) (any
use in the United States may be sufficient to establish priority under Section 2(d)).18

15 Munro confidential decl. ¶ 8, 27 TTABVUE 5-6.
16 Id.
17 Platt decl. ¶ 3, 25 TTABVUE 2-3; Munro confidential decl. Ex. G, 27 TTABVUE 78-89.

18 Furthermore, the Trademark Act specifies that a trademark shall be deemed to be in use
in commerce when the goods bearing the mark “are sold or transported in commerce.” 15
U.S.C. § 1127. This language comprehends all commerce that may lawfully be regulated by
Congress: either interstate commerce or commerce between the United States and a foreign
country. Larry Harmon Pictures Corp. v. Williams Rest. Corp., 929 F.2d 662, 18 USPQ2d
1292, 1293-94 (Fed. Cir. 1991). See Cerverceria Centroamericana v. Cerverceria India, 892
F.2d 1021, 13 USPQ2d 1307, 1310 (“In cases involving products made from abroad, proof of
nonuse of the trademark may require both proof of no importations into the United States
and no domestic sales”); 7-11 Sales, Inc. v. Perma, S.A., 225 USPQ 170, 171 (TTAB 1984)
(petitioner failed to show that respondent’s marks were not used in commerce between the
United States and a foreign country, and therefore failed to show nonuse). “As noted in the
Silenus Wine case, In re Silenus Wines, Inc., 557 F.2d 806, 194 USPQ 261, 263 (CCPA 1977)]
a shipment in foreign trade or interstate commerce will satisfy the “use” requirement as long
as the applicant is the one who caused the shipment to be made, and was not simply a passive
recipient.” 3 McCarthy on Trademarks and Unfair Competition § 19:118 (5th ed., Sept. 2018).
See also Raintree Publishers, Inc. v. Brewer, 218 USPQ 272, 274 (TTAB 1983) (“The sale and
shipment of products bearing a trademark to one’s distributor is clearly sufficient to establish
trademark rights.”); La Maur Inc. v. Int’l Pharm. Corp., 199 USPQ 612, 617 (TTAB 1978)
Opposition Nos 91228347 and 91228348
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Consequently, we find that Applicant’s first use is as of October 2002.
B. Opposer’s Claim of Priority

Opposer predicates its claim of priority not on its own commencement of use of the
MAJESTIC mark on car audio products, which took place in October 2003, but on a
chain of title stretching back to 1977:
• In 1977, the MAJESTIC mark was first used on car audio products by Majestic
Electronics, Inc., based in Van Nuys, California;19
• In 1998 the owner of Majestic Electronics sold the business, with the
MAJESTIC mark and good will, to a limited liability company, Micgin, LLC,
of which his daughter, Virginia Leff, was a member;20
• In May 2002 Micgin, LLC closed; Ms. Leff avers that “I retained the
MAJESTIC trademark and good will associated therewith and began exploring
ways to continuing use of or selling the MAJESTIC trademark;”21
• On May 31, 2002 Virginia Leff filed an application in her own name with the
USPTO that on Aug. 26, 2003 matured into Registration No. 2755519 for
MAJESTIC (in standard characters) for car audio goods in International Class
9;

(shipments of consumer goods to the trade, i.e., to wholesalers and large chains, constitutes
use in commerce on which one can base priority).
19 Virginia Leff declaration ¶ 2, 15 TTABVUE 2-3.
20 Virginia Leff declaration ¶¶ 2, 3, 15 TTABVUE 2-3.
21 Id.
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• On Oct. 1, 2003 Opposer Niche Audio, Inc. (an Arizona corporation formed in
May 2003 by Hayil Rabadi and based in Phoenix) purchased the MAJESTIC
mark, registration and good will from Virginia Leff, who executed an
assignment dated November 10, 2003;22
• On March 28, 2014 Opposer’s Registration No. 2755519 for MAJESTIC expired
because Opposer failed to renew it;23
• Opposer sold car audio products under the MAJESTIC mark to retailers; from
2012 to 2015 Opposer sold its MAJESTIC car audio products exclusively to
Rabadi & Sons (of which Hayil Rabadi is president and part owner), which in
turn distributed the products to retailers;24 and
• Starting in 2015, Rabadi & Sons directly imported the Chinese-made car audio
goods and sold MAJESTIC products to retailers.25
Because its registration has been cancelled, Opposer no longer benefits from the
presumptions of Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), and must
rely on its common law use to prove priority. Kemi Organics v. Gupta, 126 USPQ2d
at 1606. In other words, “because unregistered marks are not entitled to the
presumptions established under Sections 7(b)-(c) of the Trademark Act, it is
Opposer’s burden to demonstrate that it owns a trademark that was used prior to

22 Virginia Leff declaration ¶ 5, 15 TTABVUE 3-4; ex. 1, 15 TTABVUE 11; ex. 2, 15 TTABVUE
18-25; Hayil Rabadi declaration ¶ 4, 17 TTABVUE 3, ex. 1, 17 TTABVUE 11-17.
23 Opposer’s brief p. 22, 30 TTABVUE 23.
24 Rabadi decl. ¶6, 17 TTABVUE 4-5.
25 Id.
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Applicant’s first use or constructive use of its mark and not abandoned.” RxD Media,
LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1808 (TTAB 2018). “In the usual
case the decision as to priority is made in accordance with the preponderance of the
evidence. The common law and the Lanham Act require that trademark ownership
be accorded to the first bona fide user.” Hydro-Dynamics v. George Putnam & Co., 1
USPQ2d at 1773. “As the plaintiff in this proceeding, opposer bears the burden of
proof which encompasses not only the ultimate burden of persuasion, but also the
obligation of going forward with sufficient proof of the material allegations of the
notice of opposition, which, if not countered, negate applicant’s right to a
registration.” Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1040
(TTAB 2010).
Applicant challenges Opposer’s putative chain of title on three grounds, alleging
that (1) Majestic Electronics and Micgin LLC used differently stylized versions of
MAJESTIC, which cannot be “tacked” onto one another to establish an unbroken
chain of use; (2) Virginia Leff abandoned the mark during the sixteen-month period
of nonuse between MicGin LLC’s closing and her sale to Opposer; and (3) Opposer
Niche Audio has abandoned its trademark rights by permitting uncontrolled use by
Rabadi & Sons.26 These arguments miss the point, though.
First, tacking is not the issue in this case. The Supreme Court described tacking
in Hana Fin., Inc. v. Hana Bank, 135 S. Ct. 907, 113 USPQ2d 1365 (2015):
Recognizing that trademark users ought to be permitted to
make certain modifications to their marks over time

26 Applicant’s brief pp. 42-50, 32 TTABVUE 43-51.
Opposition Nos 91228347 and 91228348
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without losing priority, lower courts have provided that, in
limited circumstances, a party may clothe a new mark with
the priority position of an older mark. This doctrine is
called ‘tacking,’ and lower courts have found tacking to be
available when the original and revised marks are ‘legal
equivalents’ in that they create the same, continuing
commercial impression.

113 USPQ2d at 1366 quoted in Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. KGAA v. New Millennium Sports, S.L.U., 797 F3d 1363, 116 USPQ2d 1129, 1132
(Fed. Cir. 2015). In Jack Wolfskin, the Federal Circuit held that minor stylistic
changes in the font and image of a word and design mark did not change its
commercial impression, and tacking was permitted. Id. at 1133. So too here.
Majestic Electronics, Inc. used the MAJESTIC word mark in san-serif letters,
albeit accompanied by a crown design:27

Micgin LLC used a slightly stylized version of MAJESTIC:

27 Leff decl. Ex. 4, 5, 15 TTABVUE 44-45, 53.
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. . .
28
After Virginia Leff assigned Registration No. 2755519 to Opposer for the standard
character mark MAJESTIC, Opposer used the mark in commerce in various, slightly
different styles:

28 Leff decl. Ex. 8, 15 TTABVUE 79.
Opposition Nos 91228347 and 91228348
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29
As in Jack Wolfskin, these minor stylistic changes would not change the
commercial impression of the mark in the eyes of consumers: that of the word
MAJESTIC. “The commercial impression that a mark conveys must be viewed
through the eyes of a consumer.” DuoProSS Medi-tech Corp. v. Inviro Med. Devices,
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) quoted in Hana Fin. v.
Hana Bank, 113 USPQ2d at 1367. Hence, the issue of tacking does not prevent
Opposer from claiming priority.
Second, Applicant has raised abandonment as an affirmative defense to Opposer’s
assertion of prior common law rights, but it has not met its burden of proving this
defense. See Azeka Bldg. Corp. v. Azeka, 122 USPQ2d 1477, 1485 (TTAB 2017) (party
raising abandonment as affirmative defense bears burden of persuasion); see also
Kemi Organics v. Gupta, 126 USPQ2d at 1605 n.12. Under Section 45 of the
Trademark Act of 1946, 15 U.S.C. § 1127, a mark shall be deemed abandoned:
When its use has been discontinued with intent not to
resume such use. Intent not to resume may be inferred

29 Opposer’s reply brief p. 15, 33 TTABVUE 16.
Opposition Nos 91228347 and 91228348
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from circumstances. Nonuse for 3 consecutive years shall
be prima facie abandonment.
15 U.S.C. § 1127.

The two elements of abandonment are thus nonuse of the mark and intent not to
resume use. Executive Coach Builders, Inc. v. SPV Coach Co., Inc., 123 USPQ2d 1175,
1180 (TTAB 2017). Applicant claims that Virginia Leff abandoned the MAJESTIC
mark during the sixteen-month period of nonuse between Micgin, LLC closing in May
2002 and Opposer purchasing the mark in October 2003.30 Indeed, the record does
not reveal her use of the mark in commerce during that time period. Her protestation
that “I had no intention to abandon the MAJESTIC Trademark”31 is unavailing, for
“[i]n every contested abandonment case, the respondent denies an intention to
abandon its mark; otherwise there would be no contest.” Id. at 1198 (quoting Imperial
Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575, 14 USPQ2d 1390, 1394 (Fed. Cir.
1990)). But the sixteen-month hiatus falls short of the three-year period needed to
give rise to a prima facie presumption of abandonment. And Opposer’s president
avers that “[i]n connection with the anticipated purchase of the MAJESTIC mark, in
2003 I hired Ms. Leff to work with Niche Audio, Inc. to help Niche Audio, Inc.
establish the MAJESTIC product line and to line up customers for both MAJESTIC
products and NICHE AUDIO Products. Niche Audio, Inc. immediately began lining
up foreign manufacturers to manufacture MAJESTIC audio products for it and began

30 Applicant’s brief pp. 45-47, 32 TTABVUE 46-48.
31 Leff decl. ¶ 2, 15 TTABVUE 2-3.

Opposition Nos 91228347 and 91228348
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lining up customers for such products.”32 Based on these measures, we may
reasonably infer an intent to resume use.33 See Yazhong Investing Ltd. v. Multi-Media
Tech. Ventures, Ltd., 126 USPQ2d 1526, 1538 (TTAB 2018).
Finally, Applicant contends that Opposer has abandoned its trademark rights by
permitting uncontrolled use by Rabadi & Sons.34 In support of this contention,
Applicant points to the averment by Applicant’s president that in 2015, Rabadi &
Sons began purchasing all of the MAJESTIC goods directly from Opposer’s overseas
manufacturers and distributing the goods to its retailers.35 Opposer’s president
declares that Rabadi & Sons has been acting “on behalf of Niche Audio, Inc.,”36 but
as Applicant points out, “Mr. Rabadi does not explain what ‘on behalf’ entails or
provide any specifics that might constitute quality control.”37 Applicant also points to
Opposer’s failure to identify or produce documents “relating to the relationship
between Opposer and any of Opposer’s Affiliates…,” as requested in discovery.
According to Applicant, “[t]his suggests that there was never any agreement between
Opposer and Rabadi & Sons, Inc. that established quality control over Rabadi & Sons,
Inc. use of Opposer’s MAJESTIC mark.”38

32 Rabadi decl ¶ 5, 17 TTABVUE 4.
33 Whether Ms. Leff acquired the intellectual property of Micgin LLC is addressed infra.
34 Applicant’s brief pp. 48-50, 32 TTABVUE 49-51.
35 Rabadi decl ¶ 6, 17 TTABVUE 4-5.
36 Id.
37 Applicant’s brief p. 49, 32 TTABVUE 50.
38 Id. at 50, 32 TTABVUE 51, referring to Request for Production of Documents no. 2,
Applicant’s second notice of reliance, 29 TTABVUE 133.
Opposition Nos 91228347 and 91228348
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It is true that “[a] finding of uncontrolled licensing may result in several possible
effects: abandonment of all rights in the mark … and a break in a chain of continuous
use necessary to prove priority of use over another.” 3 MCCARTHY ON TRADEMARKS
AND UNFAIR COMPETITION § 18:48 cited in Haymaker Sports, Inc. v. Turian, 581 F.2d
257, 198 USPQ 610, 613 (CCPA 1978) (“Uncontrolled licensing of a mark results in
abandonment of the mark by the licensor.”) and treatise quoted in Yocum v.
Covington, 216 USPQ 210, 216 (TTAB 1982). “Whether, in fact, sufficient control is
exercised is a question of fact in each case and the burden of proving lack of control
or insufficient control is in the party claiming the abandonment.” Nestle Co. v. Nash-
Finch Co., 4 USPQ2d 1085, 1089 (TTAB 1987) (citing J. Gilson, Trademark Protection
and Practice, § 6.01(6) (1984)).
In this case, Applicant fails to prove lack of sufficient control exercised by Opposer.
Although Opposer appears to have delegated a significant amount of its
responsibilities to Rabadi & Sons, the record shows that Hayil Rabadi is the president
of and a shareholder in both small family businesses, which operate from the same
address.39 In circumstances such as these, where a single person is the “leading light”
or owner of family enterprises, the Board has found that “[plaintiff] is a family-owned
and run business and that there is a unity of control. In a similar situation the Board
found that a family-owned and run business provided the requisite unity of control.”
Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d

39 Rabadi decl. ¶¶ 2-3, 17 TTABVUE 2-3.

Opposition Nos 91228347 and 91228348
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1921, 1931-32 (TTAB 2011). Applicant’s broad and general document request
“relating to the relationship between Opposer and any of Opposer’s Affiliates…,” did
not inquire about quality controls with any degree of reasonable particularity; nor
has Applicant demonstrated any diminution in the quality of car audio equipment
ordered from Opposer’s Chinese manufacturers and distributed to its retailers, as a
consequence of Rabadi & Sons’ participation. See Stockpot, Inc. v. Stock Pot Rest.,
Inc., 220 USPQ 52, 59 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir.
1984) (“even in the absence of a contractual provision relating to quality control, the
inference of abandonment is not drawn because satisfactory quality was maintained
and, hence, no deception of purchasers occurred”). Applicant has therefore failed to
carry its burden of proving the affirmative defense of abandonment.
C. Analysis: Chain of Title
The overarching issue, however, is not tacking or abandonment, it is chain of title.
It is Opposer’s burden to prove by a preponderance of the evidence that it acquired
its common law rights before Applicant’s October 2002 first use in commerce. See
Hydro-Dynamics v. George Putnam & Co., 1 USPQ2d at 1773. To mix metaphors,
“one should look at the evidence as a whole, as if each piece of evidence were part of
a puzzle which, when fitted together, establishes prior use.” West Florida Seafood Inc.
v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994) quoted in
Daniel J. Quirk, Inc. v. Vill. Car Co., 120 USPQ2d 1146, 1150 (TTAB 2016).
In this case, the critical link in that chain, or piece of the puzzle, is Virginia Leff’s
assertion that when Micgin LLC closed in May 2002, she personally acquired rights
Opposition Nos 91228347 and 91228348
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in the MAJESTIC mark that she could assign to Opposer in October 2003. Applicant
repeatedly attacks the credibility and the evidentiary and legal support for this
assertion, observing that “there is no evidence of … record that she ever purchased
or acquire[d] the mark in any way from Micgin, LLC before the company closed,”40
“Opposer has failed to provide any credible evidence that Ms. Leff legally acquired
the rights from Micgin, LLC,”41 and “there is no evidence showing how or if she
‘retained’ the mark and good will. Nor is there any legal authority for the implied
contention that she had a right to ‘retain’ the goodwill and the mark after all use of
the mark ceased, with no ability or plan to continue its use.”42 In a further attack on
Ms. Leff’s credibility, Applicant notes that when she signed a declaration she
submitted to the USPTO in support of her substitute specimen of use of the
MAJESTIC mark during prosecution of her May 2002 application, she averred under
oath that “the trademark sought to be registered is in use in the manner displayed in
the substitute specimen attached hereto.”43 She executed the verification on January
15, 2003. “However,” Applicant states, “this statement was categorically false, as the
mark was not in use between May 2002 when Micgin, LLC closed, and October 1,
2003, when she sold the mark to Opposer.”44
In reply to this treble attack on Ms. Leff’s assertion―attacking her evidentiary

40 Applicant’s brief p. 14, 32 TTABVUE 15.
41 Id. at 44, 32 TTABVUE 45.
42 Id. 45, 32 TTABVUE 46.
43 29 TTABVUE 114, 119.
44 Applicant’s brief p. 47, 32 TTABVUE 48.
Opposition Nos 91228347 and 91228348
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and legal support, as well as her credibility―Opposer reiterates that “Virginia Leff
testified further that Micgin, LLC was closed around May of 2002 and that she
retained the MAJESTIC trademark and goodwill associated with the trademark and
began exploring ways of continuing use of or selling the MAJESTIC Trademark.”
Opposer further maintains “[s]ince opposer is relying on common law rights in the
MAJESTIC mark in this Opposition Proceeding and the Registration of the
MAJESTIC mark is no longer in force, and since the purchase of the MAJESTIC mark
by Niche Audio, Inc. would include the common law rights in the MAJESTIC mark,
the validity of the Registration of the MAJESTIC mark as raised by applicant is
inapplicable.”45
It is true that Opposer’s erstwhile registration is not a factor in the chain-of-title
analysis. See Kemi Organics v. Gupta, 126 USPQ2d at 1606 (cancelled registrations
reflect only that registrations issued and not that the registered marks were used);
Kellogg Co. v. Western Family Foods, Inc., 209 USPQ 440, 442 (TTAB 1980) (an
expired or cancelled registration is not evidence of use of the registered mark at any
time because it no longer benefits from the presumptions of Section 7(b) of the
Trademark Act).
The ultimate issue is the credibility of Ms. Leff’s assertion that she individually
acquired a proprietary right in the MAJESTIC mark that she could assign to
Opposer, by assignment from Micgin, by operation of law following the dissolution of
Micgin, or in some other demonstrable manner. One cannot assign what one does not

45 Opposer’s reply brief p. 17, 33 TTABVUE 18.
Opposition Nos 91228347 and 91228348
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own. “It is settled that oral testimony in situations such as this one where
documentary evidence may be insufficient or unavailable for various reasons may be
sufficient to establish both prior and continuous use of a designation providing that
the testimony is by a witness or witnesses personally conversant with the facts, and
that it is clear, convincing, consistent, and sufficiently circumstantial to
convince the trier of fact of the probative value thereof.” Liqwacon Corp. v.
Browning-Ferris Indus., Inc., 203 USPQ 305, 316 (TTAB 1979) (emphasis added)
cited in Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98
USPQ2d 1921,1931 (TTAB 2011). “The presence of business records would
strengthen the case that these transactions occurred in the ordinary course of trade,
and the absence of such records does the opposite.” Tao Licensing LLC v. Bender
Consulting Ltd., 125 USPQ2d 1043, 1053 (TTAB 2017). “[W]hen it is within a party’s
power to produce a certain kind of persuasive testimony or documentary evidence on
an urged factual finding, and it fails to do so, a tribunal is at least permitted--perhaps
even compelled--to draw the inference that that fact is unsupported and/or untrue.”
In re US Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1794 (TTAB 2017).
There was no evidence that Micgin LLC was a single-member limited liability
company, such that the assets of the company might devolve to Ms. Leff upon
dissolution by operation of law; to the contrary, Ms. Leff avers that she was “an active
member,” not the only member, of that LLC.46 There was no documentary evidence
that when the LLC dissolved and was winding up, its intellectual property assets

46 Leff decl. ¶ 3, 15 TTABVUE 3 (emphasis added).
Opposition Nos 91228347 and 91228348
- 24 -
were distributed or conveyed to Ms. Leff. And there was no evidence that when the
LLC closed its doors, Ms. Leff made any use of the MAJESTIC mark individually. Yet
when Opposer was pressed for proof of this link in its chain of title, its reply merely
repeated Ms. Leff’s bald assertion of a transfer of rights, relying on the credibility of
the same person who, in a declaration submitted under oath to the USPTO, claimed
use of the mark when there was none. The Board is not bound to credit unsupported
factual assertions in a trial declaration, any more than it is bound to accept
conclusory statements on a motion for summary judgment. See, e.g., Moore U.S.A.,
Inc. v. Standard Register Co., 229 F.3d 1091, 1112 (Fed. Cir. 2000) (“A party may not
overcome a grant of summary judgment by merely offering conclusory statements.”)
cited in Sukumar v. Nautilus, Inc., 785 F.3d 1396, 114 USPQ2d 1626, 1632 (Fed. Cir.
2015). Such unsupported assertions have fallen short in similar cases involving a
claimed chain of title. E.g., Renaissance Rialto Inc. v. Boyd, 107 USPQ2d 1083, 1085-
86 (TTAB 2013) (“It is not clear, however, that Lakeside Cinema ever possessed any
rights in the mark for it to transfer.”); Brooks v. Creative Arts By Calloway LLC, 93
USPQ2d 1823, 1833 (TTAB 2010) (“However, it is not clear what, if any, trademark
rights Mr. Calloway owned to bequeath. There is simply no evidence from which to
make any conclusions on this issue.”).
Consequently, Opposer’s evidence in support of its claimed chain of title fails, and
the earliest date on which Opposer is entitled to rely for purposes of priority is its
own commencement of use of the mark in or about October-November 2003.
Applicant, in contrast, provides solid proof, corroborated by the testimony of its first
Opposition Nos 91228347 and 91228348
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distributor’s president, of first use in commerce by transport in October 2002,
followed by sales of electronic goods bearing the MAJESTIC mark at least as early as
February 2003. Applicant’s proof of first use is consistent, corroborated, documented
and credible. Opposer’s proof is not. In short, Opposer has failed to carry its threshold
burden of proving prior rights in the common law MAJESTIC mark by a
preponderance of evidence, see Life Zone, Inc. v Middleman Grp., Inc., 87 USPQ2d
1953, 1960 (TTAB 2008), and its claim under Section 2(d) fails for this reason alone.
IV. Likelihood of Confusion
For the sake of completeness, we consider Opposer’s claim of likelihood of
confusion, and find that that claim falls short, as well. We base our determination of
likelihood of confusion under Section 2(d) on an analysis of all of the probative facts
in evidence that are relevant to the factors set forth in In re E. I. DuPont de Nemours
and Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973), cited in B&B Hardware,
Inc. v. Hargis Ind., Inc., 575 U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015);
see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003).
In the course of applying the DuPont factors, we bear in mind the fundamental
principles underlying Section 2(d), which are to prevent consumer confusion as to
commercial sources and relationships, and to protect senior mark owners from
damage caused by registration of confusingly similar marks. Park ‘N Fly, Inc. v.
Dollar Park & Fly, Inc., 469 U.S. 189, 198, 224 USPQ 327, 331 (1985); Qualitex Co.
Opposition Nos 91228347 and 91228348
- 26 -
v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177
USPQ at 566.
We have considered each relevant DuPont factor for which there is evidence or
argument, and have treated the other factors as neutral. See M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). Not all the
DuPont factors are necessarily relevant or of equal weight, and any one of the factors
may control in a given case, depending upon the evidence of record. Citigroup Inc. v.
Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1260 (Fed. Cir. 2011);
Majestic Distilling, 65 USPQ2d at 1204; DuPont, 177 USPQ at 567.
In this case, as Opposer points out, Applicant applied to register a MAJESTIC
word and design mark twelve years ago, in 2006, for use on electronic entertainment
centers on marine vessels but later abandoned that application after receiving an
examining attorney’s final refusal based on a likelihood of confusion with Opposer’s
then active, but now cancelled registration for MAJESTIC for use on car radios,
speakers and amplifiers.47 We agree with Applicant, however, that this proceeding is
distinguishable from, and not governed by, the outcome of that prior prosecution.48
Each case must be decided on its own merits based on the evidence of record; the
Board is not bound by conclusions reached based upon different records. Citigroup,
Inc. v. Capital City Bank Group, 94 USPQ2d 1645, 1666 (TTAB 2010), aff’d 637 F.3d
1344, 98 USPQ2d 1253 (Fed. Cir. 2011); In re Cordua Rests., Inc., 823 F.3d 594, 118

47 Opposer’s brief p. 24, 30 TTABVUE 31, relating to Applicant’s prior Application Serial No.
78809282 and Opposer’s prior Registration No. 2755519.
48 Applicant’s brief p. 40, 32 TTABVUE 41.
Opposition Nos 91228347 and 91228348
- 27 -
USPQ2d 1632, 1635 (Fed. Cir. 2016). In this case, Opposer’s prior registration is
entitled to no probative value. Black & Decker Corp. v. Emerson Elec. Co., 84 USPQ2d
1482, 1487 n.9 (TTAB 2007). And the evidence adduced by the parties in this inter
partes proceeding is far more illuminating than that in the prior prosecution. As the
ensuing analysis demonstrates, the evidence shows how the parties have established
separate niches for their products, distinct from one another, thereby minimizing any
likelihood of confusion under the applicable DuPont factors.
A. The Parties’ Goods, Channels of Trade, Classes of Consumers
and Purchasing Conditions.
Under the second, third and fourth DuPont factors, we consider “[t]he similarity
or dissimilarity and nature of the goods,” the parties’ “established, likely-to-continue
trade channels,” and the “conditions under which and buyers to whom sales are made,
i.e. ‘impulse’ vs careful, sophisticated purchasing,” DuPont, 177 USPQ at 567. It is
appropriate to consider these factors together, as they tend to interact with each other
in determining whether the parties’ marks, as used on their respective goods, are
likely to cause confusion among those who encounter them in the marketplace.
With respect to similarity of the goods, Opposer argues that some of the goods in
Applicant’s subject applications, “loudspeaker systems” and “compact disc players,”
are substantially the same as the loudspeaker systems and compact disc players
Opposer sells. Furthermore, Opposer argues that Applicant’s identified “electronic
entertainment systems” and “music systems” include speakers, amplifiers, and other
Opposition Nos 91228347 and 91228348
- 28 -
electronic components that are interchangeable with or at least related to goods sold
by Opposer.49
Opposer acknowledges that its goods have always consisted of car audio
products,50 whereas Applicant’s identified goods are expressly limited to “eco home,
solar home, recreational vehicle home and marine electronic entertainment” goods.
To bridge this gap, Opposer adduces seven third-party registrations which, it says,
show similar audio goods offered for cars and boats under the same mark, e.g.:
• PIONEER, Reg. Nos. 1631375, 1957015, and 2613628,51 which include
“loudspeakers for use in cars and boats”;
• SOUNDSTREAM & Design, Reg. No. 3215804, including “audio equipment for
boats and vehicles.”
• MTX AUDIO, Reg. No. 4666772, including “audio equipment for use in vehicles
including cars, boats, motorcycles, and off-road vehicles”;52
The remaining registrations cited by Opposer are not on point:
• DSL AUDIO, Reg. No. 3270654, including “audio equipment for boats and
vehicles,” has been cancelled; and

49 Opposer’s reply brief pp. 5-6, 33 TTABVUE 6-7.
50 Opposer’s brief p. 6, 30 TTABVUE 7.
51 Registration Nos. 1957015 and 2613628 were registered under Section 44(e) of the
Trademark Act based on foreign registration, and do not include any use in commerce dates.
Only Registration No. 1631375 was registered based on use in commerce under Section 1(a),
with a first use date of 1938 and a first use in commerce date of 1957.
52 Opposer’s brief pp. 25-29, 30 TTABVUE 26-30; Opposer’s notice of reliance, 20 TTABVUE
68-82.
Opposition Nos 91228347 and 91228348
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• SILENT RUNNING & Design, Reg. No. 3567779, is for “Liquid sound damping
coating for use on, boat hulls, … car wheel wells, firewall, trunks, doors,
running boards, interiors….”
Opposer contends that “[t]hese third party registrations which show items for
both cars and boats in the same registration and show companies that make and/or
sell similar items for both cars and boats under the same trademark, tend to show
that consumers would be likely when seeing similar items for cars and for boats under
the same trademark to believe that such similar items come from the same or a
related source.”53
To its third-party registration evidence, Opposer adds screenshots from the
websites of three entertainment electronics companies showing goods in both the car
and marine markets, e.g.:
• JVC’s catalog, showing car receivers, amplifiers and speakers on one page and
marine/motor sports receivers and speakers on another, touting the equipment
as “Water-Resistant Design with High Output” and “Ideal for Off-Road
Vehicles”; and its website, advertising under the heading “Car Entertainment”
receivers and speakers under the sub-heading “Marine/MotorSports”;54
• Kenwood’s website, under the heading “car entertainment,” has a subheading
for “marine,” advertising “KENWOOD outdoor and marine products provide

53 Opposer’s brief p. 29, 30 TTABVUE 30.
54 Opposer’s notice of reliance, 20 TTABVUE 103-109, 114.
Opposition Nos 91228347 and 91228348
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the best sounding outdoor experience available. Products engineered to
withstand harsh outdoor environments, look great and sound even better.”55
• Clarion’s website home page displays “Marine Audio Systems” separately from
“Speakers” and “Full Digital Sound.” Furthermore, the website displays car
audio products on one page, and marine audio systems on another.56
From this website evidence, Opposer infers that “it is common for companies to
make and/or sell similar items for both cars and boats under the same trademark and
to display such products together on the same website. This tends to show that
consumers would be likely when seeing similar items for cars and for boats under the
same trademark to believe that such similar items come from the same or a related
source.”57
Opposer further states that car audio products are like marine audio and
recreational vehicle-directed products, in that they all are built to operate on 12 volt
power, usually supplied by batteries. In fact, the manufacturers and sellers of such
audio equipment are known collectively as “the 12 volt industry,” Opposer’s president
avers. To illustrate, an industry news outlet, 12VoltNews.com, covers all variations
of products that run on 12 volts, and does not distinguish between whether the
products are directed principally to cars, to boats, or to recreational vehicles, Opposer
maintains.58

55 Opposer’s notice of reliance, 20 TTABVUE 120.
56 Opposer’s notice of reliance, 20 TTABVUE 128-152.
57 Opposer’s brief p. 31, 30 TTABVUE 32.
58 Opposer’s brief p. 31, 30 TTABVUE 32; Rabadi decl. ¶ 19, 17 TTABVUE 8.
Opposition Nos 91228347 and 91228348
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Applicant contends, on the other hand, that the parties’ audio and electronic
goods, though similar in function, are otherwise markedly dissimilar―with Opposer’s
goods solely directed to cars, and Applicant’s goods expressly limited in their
identifications to marine, recreational vehicle, and solar/eco home use.59 Applicant
describes various different specifications necessitated by the differing conditions in
the car market versus the marine and RV markets―such as tinned copper wires,
special cabling, electrical noise dampening, waterproofing, dust proofing, lower power
consumption, and more powerful batteries.60
According to Applicant’s founder, the same distinction holds true for eco and solar
homes:
[T]he Eco Home and Solar Home markets are distinctive
and use channels of trade that do not, to my knowledge,
overlap with the car audio market. This is primarily due to
the fact that Eco and Solar Homes are much like Boats, in
the sense that they operate off the grid using heavy duty
batteries that are designed to provide power without a
generator or alternator. In contrast, cars use batteries that
provide comparatively little power, and rely on an
alternator to provide continuous power. Without the
continuous power from an alternator, Eco and Solar Homes
require low power consumption electronic devices, such as
those in [Applicant’s] MAJESTIC line. Because of all these
differences, it is unlikely that the channels of trade for the
Eco Home and Solar Home markets would overlap with the
car audio market.61
Due to the different conditions and design requirements between the car market
and the marine/RV market, Applicant argues, “most major brands that are in both

59 Applicant’s brief p. 22, 32 TTABVUE 23.
60 Applicant’s brief pp. 23-24, 32 TTABVUE 24-25; Munro decl. ¶¶ 12-15, 26 TTABVUE 6-9.
61 Munro decl. ¶ 16, 26 TTABVUE 9-10.
Opposition Nos 91228347 and 91228348
- 32 -
markets have a specially designed range of stereos specifically for the marine market
and use the term ‘marine’ to differentiate their marine products.” Examples include
Fusion Marine Stereo, Clarion Marine Stereo, Kenwood Marine Stereo, Alpine
Marine Stereo, JBL Marine Speakers, and Dual Marine Stereo.62 The third-party
brands cited by Opposer follow suit, Applicant notes, dividing the car and marine
products into separate categories and labeling “Marine” goods clearly.63 Even
12VoltNews.com, to which Opposer refers, “rarely discusses both marine and car
products side by side,” Applicant insists, “and when it does it clearly differentiates
between the two.”64
In Applicant’s view, the established, likely-to-continue channels of trade for the
car audio market are quite separate from those of the marine and RV markets:
“Contrary to Opposer’s claims, the marine and RV markets are distinct niche markets
that are isolated from the car audio market.”65 Applicant states that it sells its
products through three discrete channels: (1) boat and RV original equipment
manufacturers (OEMs), (2) marine and RV distributors who sell to marine and RV
dealers, and (3) marine and RV distributors who sell to consumers.66 Applicant

62 Applicant’s brief pp. 24-25; 32 TTABVUE 25-26; Munro decl. ¶ 15e, ex. I, 26 TTABVUE 9,
318-335.
63 Applicant’s brief p. 26, 32 TTABVUE 27.
64 Applicant’s brief p. 27, 32 TTABVUE 28.
65 Applicant’s brief p. 28, 32 TTABVUE 29.
66 Id.; Munro decl. ¶ 7, 26 TTABVUE 4, French decl. ¶¶ 4-6, 24 TTABVUE 3-4. Opposer
argues that consumers viewing the parties’ goods on eBay could be confused, see Opposer’s
brief p. 33, 30 TTABVUE 34, 18 TTABVUE ex. 3, Opposer’s reply brief p. 9, 33 TTABVUE
10. But we agree with Applicant that such secondary sales would be few in number, see
Opposition Nos 91228347 and 91228348
- 33 -
concludes, “Each of these channels are specific to the marine and RV industries and
exclusively cater to marine and RV customers. Given the marine and RV specificity
of these channels, it is highly unlikely that a car audio product customer would
attempt to use them to make a purchase, and therefore it is equally unlikely that
such a customer would confuse Applicant’s and Opposer’s products.”
On consideration of the parties’ arguments and evidence, we find that their
established, likely-to-continue channels of trade minimize the likelihood of confusion
among prospective purchasers. Since its inception fifteen years ago, Opposer Niche
Audio, Inc., true to its name, has confined itself to its niche in car audio products.
Applicant’s identification is expressly limited to marine, RV, and solar/eco home
electronic goods. These limitations may be considered in analyzing the applicable
DuPont factors. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, (Fed. Cir. 2014).
The fact that a broad, general term―audio products―can be found to encompass
some of both parties’ goods is not dispositive of similarity. Edwards Lifesciences Corp.
v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010); see also Bose Corp. v. QSC
Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1310 (Fed. Cir. 2002) (stating, in
dicta, that “a broad general market category is not a generally reliable test of
relatedness of products”). Rather, the true test of similarity is whether the parties’
goods appeal to the same market. “In determining whether products are identical or

Applicant’s brief pp. 27-28, 32 TTABVUE 28-29, and the likelihood of confusion engendered
thereby would be de minimis.
Opposition Nos 91228347 and 91228348
- 34 -
similar, the inquiry should be whether they appeal to the same market, not whether
they resemble each other physically or whether a word can be found to describe the
goods of the parties.” Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ 517,
520 (TTAB 1975) quoted in Edwards Lifesciences v. VigiLanz, 94 USPQ2d at 1410.
To determine the markets to which the parties’ goods appeal, we consider the
evidence Applicant has submitted concerning the technical nature of its electronic
goods―specifications that differentiate those goods from goods in the car market.
“Where, as here, applicant’s description of goods provides basic information, and the
goods are of a technical nature, it is entirely appropriate to consider extrinsic
evidence to determine the specific meaning of the description of goods.” Edwards
Lifesciences v. VigiLanz, 94 USPQ2d at 1410 (citing In re Trackmobile, Inc., 15
USPQ2d 1152, 1154 (TTAB 1990)). These differences in specifications are relevant,
we find, not because consumers would be aware of most of the differences―they would
not―but because the different requirements tend to confine the parties to their
normal channels of trade, respectively: cars for Opposer and the marine, RV, and
solar/eco home markets for Applicant. See Packard Press, Inc. v. Hewlett-Packard Co.,
227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000); In re HerbalScience Grp. LLC,
96 USPQ2d 1321, 1324 (TTAB 2010) (nature of identified goods indicates normal
channels of trade).
With respect to the third-party registrations cited by Opposer, we are mindful that
“[a]lthough such registrations are not evidence that the marks shown therein are in
use or that the public is familiar with them, they nonetheless have probative value
Opposition Nos 91228347 and 91228348
- 35 -
to the extent that they serve to suggest that the goods listed therein are of a kind
which may emanate from a single source under a single mark.” In re Davey Prods.
Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009). In this case, though, three of the
registrations are from the same source, two of those are not based on actual use in
commerce, one registration was cancelled, and another registration is for unrelated
goods―“liquid sound damping coating.” The registrations collectively have little or no
probative value. See Anderson, Clayton & Co. v. Christie Food Prods. Inc., 4 USPQ2d
1555, 1557 n.6 (TTAB 1987) (“The other third-party registrations relating to marks
in unrelated fields are of no probative value”). Thus, while Opposer has shown that
several large brands have bridged the gap, marketing their electronic goods in both
the car and marine markets, it has not shown that the phenomenon is so common
that consumers would, in consequence, tend to expect the parties’ disparate goods to
emanate from a common source. Cf. In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1786 (TTAB 1993) (probative value of third-party registration evidence may be
limited). If anything, the third-party websites adduced in the record indicate that
marine electronic products are generally marketed to consumers as a separate
category of goods. Furthermore, the third-party evidence of record does not bridge the
gap between audio products intended for use in cars and those intended for use on
recreational vehicles or in eco/solar homes.
Applicant has identified four classes of purchasers for its goods: original
equipment manufacturers (OEMs), distributors, retailers, and end consumers. The
first three, the professional classes, would be, by their very nature, highly
Opposition Nos 91228347 and 91228348
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sophisticated in their business-to-business dealings, and unlikely to confuse the
sources of their stock in trade with the source of goods from a car audio seller. So
under the fourth DuPont factor, confusion would be unlikely among these classes of
purchasers. DuPont, 177 USPQ at 567; In re N.A.D., Inc., 224 USPQ 969, 971 (Fed.
Cir. 1985) (confusion is unlikely when sophisticated purchasers are buying goods with
great care.).
The end consumers would encounter Applicant’s goods in two contexts: either (1)
when they buy a recreational vehicle, boat, or eco/solar home, or (2) when they add or
upgrade electronic entertainment systems in any of those settings. The first case
entails an infrequent purchase of an inherently out-of-the-ordinary item that would
involve close attention to the goods and their source. As we explained in In re Thor
Tech, Inc., 113 USPQ2d 1546 (TTAB 2015):
Trucks and recreational vehicle towable trailers are not everyday
purchases. They are special purchases. A consumer can be expected to pay
particular attention to such purchases, and indeed would likely make a
careful personal examination of the item before buying. These types of
products, at these prices, are not the kinds of products which we think
reasonably prudent purchasers would buy, or without researching the
product to some degree. Rather, these are items that will be purchased
with care and deliberation.

113 USPQ2d at 1550-51.

Furthermore, in that context, Applicant’s equipment would be installed by the
OEM, affording the end consumer little or no opportunity for confusion as to the
source of the installed goods. In the second case, the consumer would be searching for
appropriate equipment for an RV, a boat or a home, which, as Applicant’s evidence
shows, tends to be segregated according to the means of transportation or setting.
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Boat owners look for boating equipment; RV owners for RV equipment. Hence, under
the fourth DuPont factor, the conditions under which sales are made would tend to
encourage careful purchases. DuPont, 177 USPQ at 567.
In sum, despite superficial similarities between some of the parties’ goods, they
differ in kind, so much so that each party has carved its own niche―its own
“established, likely-to-continue” channels of trade for its goods, which reduces the
chance that purchasers thereof are likely to encounter them during the purchasing
process and be confused as to their source. See M2 Software, Inc. v. M2 Commc’ns, 78
USPQ2d at 1947 (“The board placed the greatest weight on its findings that the goods
in question were not related and that the channels of trade and purchasers are
different. Because of the dominant role these factors play in this case, we find no error
in the weight the board accorded them.”); In re HerbalScience Grp. LLC, 96 USPQ2d
1321, 1324 (TTAB 2010) (“Because of the differences in the channels of trade and
customers for applicant’s and the registrant’s goods, there is virtually no opportunity
for confusion to arise.”). For these reasons, the second, third, and fourth DuPont
factors favor Applicant.
B. Actual Confusion and Length of Contemporaneous Use of the Parties’ Marks

Under the seventh and eighth DuPont factors, we consider the nature and extent
of any actual confusion in light of the length of time and conditions under which there
has been contemporaneous use of the parties’ subject marks. DuPont, 177 USPQ at
567.

Opposition Nos 91228347 and 91228348
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Applicant contends that;
Applicant and Opposer have been using their respective marks
concurrently for almost fifteen years. Applicant began using its marks in
October of 2002, as that is when it made its first shipment of MAJESTIC
goods to the United States. … Opposer began using its marks no earlier
than October of 2003, approximately a year later. … This is a significant
period of concurrent use without actual confusion, which strongly suggests
that Applicant and Opposer can continue to use their respective marks
without consumer confusion.67

During that fifteen-year period of contemporaneous use of the parties’ marks, the
confidential declaration testimony of Mr. Munro, Applicant’s founder, indicates
generally growing sales to Dantronics, its distributor, followed by significant sales in
commerce, in the hundreds of thousands of dollars, by Majestic Global USA, from
2008 on.68 During that time, Applicant’s MAJESTIC products have been promoted on
Dantronics’ website, and on the websites of its distributors throughout the United
States.69
Given this extent and duration of contemporaneous use, there has been a
reasonable opportunity for confusion to have occurred between the parties’ branded
products. See Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d at 1660;
Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the
probative value of the absence of actual confusion depends upon there being a
significant opportunity for actual confusion to have occurred). Yet the president of
Majestic Global USA testified that “Over the last sixteen years of working with the

67 Applicant’s brief p. 36, 32 TTABVUE 37.
68 Confidential Munro decl. ¶¶ 7, 8, 27 TTABVUE 5-6.
69 Munro decl. ¶ 6, 29 TTABVUE 3, confidential Munro decl. ¶ 4, 27 TTABVUE 3.
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MAJESTIC brand, I have never encountered anyone who mistook the MAJESTIC
brand for another product line. Whether it was during business negotiations or
otherwise, I have never witnessed anyone who was confused about the source of the
MAJESTIC products,”70 and Applicant’s founder testified that Applicant “has been
selling its MAJESTIC branded range of products since 2002 in the USA and had
never had any objection from Niche Audio, Inc. at any time, or become aware of
instances of actual confusion….”71
Opposer’s answer to Applicant’s first interrogatory is telling:
Interrogatory No. 1: Describe and state in full detail the circumstances
under which Opposer first learned of or became aware of Applicant’s
Marks.
Response: Opposer first learned of Applicant’s Marks in the latter part
of 2015 or January 2016 in a verbal communication from Sam Mozayek of
Maximum Sound [in Arizona], one of Opposer’s customers, to Harry
Rabadi. … Sam reported that one of his customers had said that there was
a website where the customer could get the same MAJESTIC products on
line. Sam and Mr. Rabadi got on line and found that it was Applicant’s web
site that had been referred to. At that time Opposer did not have a web
site. This was the first time Opposer became aware of Applicant. Shortly
after the conversation with Sam, Matt Ogram of Custom Car Concepts [in
Arizona] contacted Mr. Rabadi with a similar comment about a customer
who said he could get a MAJESTIC product on line. Again, the website was
Applicant’s website.72

First, as Applicant notes, the retailers’ recitation of customer inquiries is “double
or triple hearsay.”73 Fed. R. Evid. 802; 37 CFR § 2.122 (a). Second, a mere inquiry of

70 Anderson decl. ¶ 8, 23 TTABVUE 3.
71 Munro decl. ¶¶ 11, 26 TTABVUE 5-6; confidential Munro decl. ¶ 10, 27 TTABVUE 7.
72 Opposer’s Answer to Applicant’s Interrogatory No. 1, 29 TTABVUE 132.
73 Applicant’s brief p. 35 n. 3, 32 TTABVUE 36.
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the sort recounted by Opposer’s retailers does not suffice to show that the inquirers,
or their customers, were actually confused. See Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1475 (TTAB 2016) (“These purported inquiries of individuals
affiliated with Opposer are hearsay. Without direct testimony from these individuals,
there is insufficient information to ascertain what they were thinking, or what caused
the purported confusion.”). Third, and most importantly, if, after over a decade of
significant contemporaneous use in commerce, those are the first inquiries to come to
Opposer’s attention about Applicant’s mark, that strongly suggests that there is, in
fact, a low likelihood of confusion. Cent. Soya Co., Inc. v. N. Am. Plant Breeders, 212
USPQ 37, 48 (TTAB 1981) (“the absence of actual confusion over a reasonable period
of time might well suggest that the likelihood of confusion is only a remote possibility
with little probability of occurring”). Indeed, the absence of actual confusion supports
our conclusion above that the parties’ goods and channels of trade are so different
that confusion is unlikely to occur.
For these reasons, the seventh and eighth DuPont factors weigh against a finding
of likelihood of confusion.
C. Opposer’s Nature and Variety of Goods and
Applicant’s Right to Exclude Others from using its Mark on its Goods

The ninth DuPont factor is “the variety of goods on which a mark is or is not
used…” and the eleventh factor is “the extent to which applicant has a right to exclude
others from use of its mark on its goods.” DuPont, 177 USPQ at 567.
The two factors counterbalance one another, and should be read in tandem in the
likelihood of confusion calculus. If a party in the position of plaintiff uses its mark on
Opposition Nos 91228347 and 91228348
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a wide variety of goods, then purchasers are more likely to view a defendant’s related
good under a similar mark as an extension of the plaintiff’s line. See, e.g., In re Hitachi
High-Technologies Corp., 109 USPQ2d 1769, 1774 (TTAB 2014) (“[C]onsumers who
may be familiar with various products in the [registrant’s brand] product line, when
confronted with applicant’s mark, would be likely to view the goods marked therewith
as additional products from registrant. One of the circumstances mentioned in the
ninth du Pont factor is the variety of goods on which a prior mark is used.”). But if,
on the other hand, a plaintiff restricts its mark to a narrow line of goods, and allows
a defendant to build customer good will over time in another line of products, then
the purchasing public is less likely to regard the defendant’s brand of goods as an
extension of the plaintiff’s brand. Indeed, that defendant’s intervening trademark
rights may counterbalance the plaintiff’s asserted right to continue its expansion of
goods sold under its mark. See Am. Stock Exch., Inc. v. Am. Express Company, 207
USPQ 356, 364 (TTAB 1980) (“a trademark owner cannot by the normal expansion of
its business extend the use or registration of its mark to distinctly different goods or
services not comprehended by its previous use or registration where the result could
be a conflict with valuable intervening rights established by another through
extensive use and/or registration of the same or similar mark for like or similar goods
or services.”).
In the few precedential Board cases discussing the eleventh DuPont factor,
applicants have failed to show sufficient use of their marks to establish a right to
exclude others from use of their marks on their goods. See McDonalds Corp. v.
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McSweet LLC, 112 USPQ2d 1268, 1284-85 (TTAB 2014) (“Applicant’s sales figures
and Applicant’s advertising and promotional expenditures are not sufficient to
establish an appreciable level of consumer recognition.”) (citing In re Davey Prods.
Pty Ltd., 92 USPQ2d 1198, 1205 (TTAB 2009) (the mere assertion of common-law use
of its mark for ten years is not sufficient)).
In this case, though, Applicant has proven substantial and increasing sales of its
MAJESTIC brand entertainment systems on its goods over the course of fifteen years,
and has burnished its brand recognition through Internet advertising, distributor
advertising, and trade show advertising.74 In consequence, according to a retailer
with 30 years’ experience, “Applicant’s MAJESTIC brand is very well recognized by
all my customers as the brand for Applicant’s high-end, 12 volt, marine and RV
adapted products.”75 Opposer, in contrast, has consistently limited itself to a narrow
range of goods in the car audio market.
The ninth and eleventh DuPont factors thus weigh against finding a likelihood of
confusion.
D. Similarity of the Parties’ Marks

The first DuPont likelihood of confusion factor focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. Stone Lion, 110 USPQ2d at 1160; Palm Bay Imps., Inc.

74 Applicant’s confidential brief pp. 37-39, 31 TTABVUE 38-40; Munro decl. ¶¶ 5-6, 9, 29
TTABVUE 3, exs. C, D, E, 26 TTABVUE 4-5, 17-66, 259-316; confidential Munro decl. ¶¶ 4,
5, 27 TTABVUE 3-4; 28 TTABVUE; Applicant’s second notice of reliance, 29 TTABVUE 3,
16-20.
75 French decl. ¶ 9, 24 TTABVUE 5.
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v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). Similarity in any
one of these elements may be sufficient to find the marks confusingly similar. Krim-
Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968);
In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018).
Again, Applicant has applied to register the standard character mark MAJESTIC
and the stylized mark . It contrasts its stylized mark with three
variations of the MAJESTIC mark as used by Opposer:

Opposer’s variations have a bold, slanted font, and its first and third variations
have a bifurcated “T”, Applicant notes, whereas Applicant’s stylized mark uses
thinner, non-italicized lettering and double horizontal lines that run the length of
MAJESTIC. These stylistic differences, Applicant contends, are recognizable at the
original equipment manufacturer (OEM) and consumer levels in the Marine
industry.76

76 Applicant’s brief pp. 21-22, 32 TTABVUE 22-23.
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Although the marks’ minor stylistic differences might be perceptible in a side-by-
side comparison, as above, we bear in mind that that is not the standard. Coach Sers.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012). “[C]onsumers may not necessarily encounter the marks in such proximity and
must rely upon their recollections thereof.” In re Integrated Embedded, 120 USPQ2d
1504, 1513 (TTAB 2016). The “marks ‘must be considered … in light of the fallibility
of memory …,’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed.
Cir. 2014). “The proper focus is on the recollection of the average customer, who
retains a general rather than specific impression of the marks.” In re Aquitaine Wine
USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018).
As Opposer correctly notes, both parties’ marks consist of the same word,
MAJESTIC; they would be pronounced the same; they convey the same connotation,
of something regal; and they would convey the same commercial impression to
consumers.77 This shared literal element is “likely to make a greater impression upon
purchasers than any stylization of the words or accompanying designs, and would be
remembered by them and used by them to request the [goods].” In re Inn at St. John’s,
126 USPQ2d at 1747 (citing In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908, 1911 (Fed. Cir. 2012).
Moreover, Applicant has applied to register a standard character mark, which
may be displayed in “any particular font style, size, or color,” 37 CFR § 2.52(a)
including the same font, size, and color as Opposer’s variations. See In re Aquitaine

77 Opposer’s reply brief p. 5, 33 TTABVUE 6.
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Wine, 126 USPQ2d at 1186. For this reason, Applicant does not rely on the first
DuPont factor to distinguish its standard character mark.78
Comparing the marks in their entireties, we find that the first DuPont factor
favors Opposer.
E. The Fame of Opposer’s Mark
and the Number and Nature of Similar Marks on Similar Goods
The fifth DuPont factor is the “fame of the prior mark,” and the sixth factor is “the
number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at
567.
In determining the strength of a mark, we consider both inherent strength, based
on the nature of the mark itself, and commercial strength or recognition. Bell’s
Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); see also
In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010)
(“A mark’s strength is measured both by its conceptual strength (distinctiveness) and
its marketplace strength (secondary meaning).”). With respect to marketplace
strength, the fame of a mark is not “an all-or-nothing measure” when considered in
the context of likelihood of confusion. Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). Rather,
likelihood of confusion fame “varies along a spectrum from very strong to very weak.”
Juice Generation, 115 USPQ2d at 1676. The fame of a mark may be measured
indirectly by inter alia the volume of sales and advertising expenditures of the goods

78 Applicant’s brief p. 21 n. 2, p. 40 n. 4, 32 TTABVUE 22, 41.
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traveling under the mark, and by the length of time those indicia of commercial
awareness have been evident. Coach Servs., 101 USPQ2d at 1720.
In this case, with respect to conceptual strength, the word mark MAJESTIC is
arbitrary with respect to car audio products, and is thus inherently distinctive. With
respect to commercial strength, Opposer has demonstrated a modest, normal amount
of market recognition for its mark. Opposer’s office manager, tasked with obtaining
sales records of MAJESTIC products since 2004, encountered some difficulty
retrieving sales records from an old computer, but managed to retrieve records of
Opposer’s sales to specific customers from 2004 through 2014.79 Opposer’s sales of
MAJESTIC products to and through Rabadi & Sons, from 2009, on, were easier to
retrieve.80 We have reviewed the records attached to the Hill and Rabadi
declarations, and find that they evidence a moderate amount of sales.
There is less evidence of advertising and promotion on Opposer’s behalf. As noted
above, Opposer’s president admits that Opposer did not have a website in 2015.81
Indeed, Applicant, having scoured the Internet for evidence of Opposer’s promotional
presence, found only its absence over the years.82 When Applicant requested that
Opposer produce “[a]ll documents concerning any planned or actual trade show at
which Opposer displayed or intends to display literature, brochures, or any type of
promotional material bearing Opposer’s Marks,” Opposer’s response, after objections,

79 Hill decl. ¶ 5, 16 TTABVUE 3; see also Rabadi decl. ¶5, 17 TTABVUE 4.
80 Hill decl. ¶6, 16 TTABVUE 3; Rabadi decl. ¶ 6, 17 TTABVUE 4-5.
81 Opposer’s Answer to Interrogatory no. 1, 29 TTABVUE 132.
82 Applicant’s second notice of reliance, 29 TTABVUE 4-5, 40-57.
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was “that it has not located any documents which it believes fall within the scope of
this request.”83 Asked to produce “[d]ocuments sufficient to show the advertising and
promotional expenditures in dollars for each year for each good or service bearing, or
that will bear, Opposer’s Marks,” Opposer responded, after objections, “that it has not
located any documents which it believes falls within the scope of this request.”84
Overall, then, considering the record in its entirety as to strength, including the
inherent distinctiveness of Opposer’s mark, we accord Opposer’s mark no more than
a normal degree of strength, and thus a normal scope of protection, as to its identified
goods in the likelihood of confusion analysis.
With respect to the sixth DuPont factor, Applicant has introduced website
evidence of a single MAJESTIC brand used for home audio products.85 This single
third-party brand, with no evidence of the extent of its use, is not sufficient to
establish that Opposer’s mark is a weak mark entitled to only a narrow scope of
protection. See Hunter Indus. v. Toro, 110 USPQ2d at 1662. Cf. In re Mr. Recipe, LLC,
118 USPQ2d 1084, 1089 (TTAB 2016) (“[O]ne third-party registration has little
probative value, especially in the absence of evidence that the mark is in use on a
commercial scale or that the public has become familiar with it.”).” Bond v. Taylor,
119 USPQ2d 1049, 1055 (TTAB 2016).
Hence, the fifth and sixth DuPont factors are neutral.

83 Opposer’s response to Request for Production no. 16, 29 TTABVUE 140.
84 Opposer’s response to Request for Production no. 23, 29 TTABVUE 144.
85 Applicant’s second notice of reliance, ex. 11, 20 TTABVUE 58-63.
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F. Balancing the Factors

We have considered all of the evidence of record and all of the arguments of the
parties, including evidence and arguments not specifically discussed in this opinion,
as they pertain to the relevant DuPont likelihood of confusion factors. Despite the
similarity of the parties’ marks, we find that the goods are different; that they move
in established, likely-to-continue channels of trade that are separate and distinct;
that their classes of customers will distinguish their brands with care; that the lack
of actual confusion in the marketplace, despite fifteen years of contemporaneous use,
underscores the parties’ distinct channels of trade and suggests that confusion is
unlikely; that Opposer has confined itself to the niche of car audio products while
Applicant has established its mark in the marine and recreational vehicle market;
and that Opposer has established only a moderate amount of customer recognition of
its mark in the car audio market.
On the whole, balancing all the DuPont factors, we find, as the Board has observed
earlier, that “Opposer has the burden of proof and must establish its likelihood of
confusion claim by a preponderance of the evidence, and we see Opposer’s likelihood
of confusion claim as amounting to only a speculative, theoretical possibility.”
Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030,
1040 (TTAB 2016). This de minimis possibility does not suffice to carry Opposer’s
burden. As our primary reviewing court has put it, “[w]e are not concerned with mere
theoretical possibilities of confusion, deception, or mistake or with de minimis
situations but with the practicalities of the commercial world, with which the
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trademark laws deal.” Elec. Design & Sales Inc. v. Elec. Data Sys. Corp., 954 F.2d
713, 21 USPQ2d 1388, 1391 (Fed. Cir. 1992) quoted in Primrose Ret. Cmtys., 122
USPQ2d at 1040.
V. Conclusion
For the above reasons, we find that Opposer has failed to meet its burden of
proving priority and likelihood of confusion under Section 2(d), 15 U.S.C. § 1052(d),
by a preponderance of the evidence.
Decision: The oppositions are dismissed.