Novosoft, L.L.C.v.Novosoft, Inc.

Trademark Trial and Appeal Board

Nov 6, 2019

91164718 (T.T.A.B. Nov. 6, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 6, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Novosoft, L.L.C.

v.

Novosoft, Inc.
_____

Opposition No. 91164718
(Application Serial No. 78281736)
_____

Novosoft, L.L.C., pro se.

Dmitri I. Dubograev of International Legal Counsels PC
for Novosoft, Inc.
_____

Before Wellington, Lynch and English, Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
On July 31, 2003, Novosoft, Inc. (“Applicant”), filed an application seeking
registration on the Principal Register of the mark HANDY BACKUP in standard
characters (with a disclaimer of BACKUP) for the following goods and services:1
Computer software for performing data backup and synchronization of files
between computers on a network in International Class 9; and

1 Application Serial No. 78281736.
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Computer consulting services relating to the maintenance, installation, and use
of computer software for performing data backup and synchronization of files
between computers on a network in Class 42.

The application is based on Applicant’s claim of first use of the mark on or in
connection with both classes of goods and services on January 24, 2002, and first use
in commerce, also with respect to both classes, on January 25, 2002.
Novosoft, L.L.C. (“Opposer”) opposes registration of the mark in both classes on
the grounds of likelihood of confusion, non-ownership of the mark at the time of filing
the application, false suggestion of a connection with Opposer, and fraud.2 With
respect to the non-ownership claim, Opposer alleges that “[f]or more than three years,
and prior to the filing of the application …, Opposer has used the designation HANDY
BACKUP as a trademark in connection with the sale of computer software that
performs data backup and synchronization of files between computers on a network,
and related software maintenance services” (Amended Not. of Opposition ¶ 2); that
“Applicant is not the owner of the mark HANDY BACKUP, Opposer is” (Id., ¶ 7); that
Applicant was a “Related Party,” and was “controlled by Opposer with respect to the
HANDY BACKUP software, and/or a mere distributor of Opposer’s HANDY
BACKUP software product from the date of Applicant’s first alleged use until June,
2003” (Id.); and that Applicant “is not an owner of the trademark under §1(a) of the
Lanham Act and could not truthfully make the statements under §1(a)(3) of the Act”
(Id.).

2 32 TTABVUE (amended Notice of Opposition).
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In its Answer,3 Applicant “admits the allegation … as to [Opposer] having sold
products at some point containing the HANDY BACKUP trademark” (Answer, ¶ 3);
and that Opposer filed an application to register the mark HANDY BACKUP that
“has been suspended pending the outcome of this proceeding” (Id., ¶ 4). Applicant
otherwise denies the salient allegations of the Amended Notice of Opposition.
The parties have briefed this opposition proceeding.
I. The Record – Evidentiary Objections
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
Applicant’s application file.
During its testimony, Opposer filed notices of reliance on the following materials:4
• Certain portions of the discovery deposition, and exhibits thereto, of Patricia
E. Eure (“Eure”), Applicant’s Chief Financial Officer;5

• Certain portions of the discovery deposition, and exhibits thereto, of Philip R.
Brenan (“Brenan”), Applicant’s President;6

• Copies of Applicant’s responses to Opposer’s first set of interrogatories;7
• Copies of the file history for the involved application;8 and

• Official Russian Federation government records, with translations, including
certificates of registration, a screenshot from the Texas Secretary of State

3 33 TTABVUE (amended Answer).
4 Opposer also filed a motion (53 TTABVUE) for leave to file testimony by declaration and
copies of its answers to Applicant’s interrogatories (54 TTABVUE). The motion was denied
(61 TTABVUE).
5 55 TTABVUE.
6 56 TTABVUE.
7 57 TTABVUE.
8 Id.
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website and a screenshot from the Library of Congress U.S. Copyright Office
website.9

Opposer also filed a copy of the testimony deposition transcript, and related
exhibits, of Ksenia Kugaevskaya, Administrative Assistant for Opposer.10
Applicant, during its testimony period, filed a copy of the testimony by declaration,
with exhibit, of Brenan.11 Applicant also filed notices of reliance on the following
materials:
• Certain portions of the discovery depositions of Brenan and Eure, with one
exhibit, pursuant to Rule 2.120(k)(4);12

• A copy of an official record from the Novosibirsk Region Arbitration Court,
Russian Federation, with a certified translation;13 and

• Opposer’s response to Applicant’s interrogatory No. 4.14

Applicant’s Motion to Strike
After Opposer filed the Kugaevskaya trial testimony deposition, Applicant
promptly moved to strike it, and all accompanying exhibits.15 The motion was briefed
and the parties were notified that action on the motion would be deferred until final
hearing.16 We address the motion now.

9 Id.
10 62 TTABVUE.
11 101 TTABVUE.
12 Respectively at 102 and 103 TTABVUE.
13 104 TTABVUE.
14 105 TTABVUE.
15 63 TTABVUE.
16 Because the motion involves substantive objections to testimony, the Board issued an order
notifying the parties that consideration of the motion was being deferred until final hearing.
66 TTABVUE.
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Applicant argues that the testimony and exhibits should be stricken for several
reasons, including: Kugaevskaya is not a qualified individual to testify that the
exhibits consist of business records; the exhibits “are rife with hearsay and they are
not records of a regularly conducted activity of the business which could give the
Board a basis to assume they are reliable,” as contemplated under Federal Rule of
Evidence (FRE) 803(6);17 the exhibits contain statements made by “persons outside
of the business”;18 and “principles of fairness and justice call for the exhibits to be
stricken now.”19
FRE 803(6), otherwise known as the ‘business records exception’ to the hearsay
rule, states as follows:
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:

(A) the record was made at or near the time by -- or from information transmitted
by -- someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.

17 63 TTABVUE 2.
18 Id. at 4.
19 Id. at 10.
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Upon review of the exhibits attached to the Kugaevskaya deposition, we find that
many of the documents are not business records that fall within the scope of FRE
803(6) hearsay exception. Specifically, Exhibits Nos. 1-17 consist of email
correspondence between Brenan and Vladimir Vaschenko, an individual and Russian
citizen, (and other individuals) from 1998 to 2003; however, there is no mention of
Opposer. Kugaevskaya did not testify with sufficient specificity as to how or why
these documents are the types of records that would be kept in the normal course of
Opposer’s regularly conducted business. Rather, Kugaevskaya testified that she has
only been working for Opposer since September 2009,20 and testified in a rather
general manner that “all these e-mails were kept in [Opposer’s] computers.”21
Likewise, Exhibits Nos. 30-35, although they are identified as “Documents to
[Opposer] from [Applicant],” and 36-39, identified in the deposition as “Novosoft, Inc.
Documents,” do not on their face involve Opposer. Again, Kugaevskaya did not testify
why these documents are the types of records that would be kept in the normal course
of Opposer’s regularly conducted business. In other words, Opposer is not identified
in these documents and we cannot find that these would be the types of documents
that Opposer would keep in the normal course of its business. Accordingly,
Applicant’s objection to Kugaevskaya Dep. Exhibits Nos. 1-17 and 30-39 on the basis
that they do not qualify as business records is sustained and they have been given no
further consideration.

20 62 TTABVUE, Kugaevskaya Dep. 19:22.
21 Id., Kugaevskaya Dep. 8:20
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With respect to the remaining exhibits, namely Exhibits Nos. 18-27 (Russian
Federation governmental “employment records” for Opposer’s employees), 28 (a
“letter” from Opposer’s “legal department”), 29 (a “contract” between Applicant and
Opposer purportedly assigning “exclusive rights” in the HANDY BACKUP software),
40-42 (copies of corporate certificates for Opposer), and 43 (a copy of the notice of
deposition), these qualify as business records and fall within the hearsay exception
under FRE 803(6). In spite of Kugaevskaya’s testimony indicating limited knowledge
of Opposer’s document retention policy,22 we find that her knowledge of Opposer’s
business records, when combined with the nature of the documents themselves, is
sufficient for custodial purposes to warrant the introduction of these exhibits under
the rule. It is not necessary that Kugaevskaya has personal knowledge of the actual
creation of the document or that she was in the employ of Opposer at the time of the
making of the business records. See, e.g., United States v. Hyde, 448 F.2d 815, 846
(5th Cir. 1971).
In sum, Applicant’s motion to strike the Kugaevskaya testimony and all
accompanying exhibits is denied, in part, to the extent we do not strike any of the
Kugaevskaya testimony and find that Exhibits 18-29, 40-43 fall within the business
records hearsay exception. Applicant’s motion to strike is granted, in part, to the
extent that its objection to Exhibits 1-17 and 30-39 is sustained and these documents
are not of record.

22 Id., Kugaevskaya Dep. pp. 25:17-32:20 (Kugaevskaya’s testimony regarding her knowledge
of Opposer’s document retention policy).
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II. Background
This proceeding was instituted in 2005. Due to numerous extension requests by
the parties, various motions, and a suspension pending a civil action between the
parties, it only recently became ready for final decision.23 Due to the significant
amount of time that has passed and that this proceeding involves factual
circumstances that are now over fifteen years old, we find it helpful to recount some
background information based on the record.
In discussing the background, we further note that although Opposer has pleaded
grounds that include likelihood of confusion, false suggestion of a connection with
Opposer and fraud, the claims essentially focus on an ownership dispute. That is,
Opposer claims that it is the owner of the mark that Applicant seeks to register;
indeed, we are presented with the not so uncommon situation whereby the parties (or
their principals) once collaborated in a business venture and now dispute the rights
in a mark derived from the collaboration. See, e.g., Lyons v. Am. Coll. of Veterinary
Sports Med. & Rehab., 859 F.3d 1023, 123 USPQ2d 1024 (Fed. Cir. 2017);
Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 (TTAB 2015) (“both parties are
relying upon activities the two conducted in concert with one another, each in an
attempt to establish prior rights in a mark over the other, the dispute centers on
ownership of the mark.”).

23 Particularly, the proceeding was suspended in in early 2012 and proceedings were not
resumed until 2018. 94 TTABVUE (resumption order). In the resumption order, the Board
noted that the parties were previously allowed time to inform the Board of the status of the
civil action which occasioned the suspension of this proceeding, but having received no
response thereto, the Board presumed that the civil action has been concluded.
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There is little documentary evidence relating to the ownership and use of the
HANDY BACKUP mark, and the testimony regarding these issues is often less than
clear. As an overview of the factual record, prior to 1999, Brenan, a U.S. individual,
and Vaschenko, an individual and Russian citizen, were engaged for several years in
a business enterprise that included the export of computer hardware for sale in
Russia.24 Although Vaschenko is the principal owner of Opposer and Brenan is
Applicant’s president, their business relationship during these years, pre-1999, did
not involve their respective business entities.25
In March, 1999, Applicant was incorporated, with Brenan as the sole shareholder
and President, and the only other corporate officer being Eure, the Chief Financial
Officer.26 Brenan testified that the reason for establishing Applicant was “as a result
of my marketing activities, [and] that I was receiving more customers and I was
sending all that work to programmers in Siberia. I wanted to have the protection of
incorporation.”27 Brenan also confirmed that Applicant corporation was “created so
that there could be a US company for customers to look to” and testified that

24 102 TTABVUE; Brennan disc. dep. p. 25-27, 31-32, 35-37 (deposition taken on March 26,
2009).
25 Opposer was a limited liability company registered in the Russian Federation at least as
early as December 1998 (Kugaevskaya Exhib. Nos. 40-41). However, there is no evidence
showing any business relationship existed between Brennan (or Applicant) and Opposer at
any time. During their discovery deposition testimony, both of Applicant’s principals, Brenan
and Eure, testified that they first became aware of Opposer’s existence after a dispute arose
between Brenan and Vaschenko in 2003. 103 TTABVUE (Eure Disc. Dep. 34:14-23) and 102
TTABVUE (Brenan Disc. Dep. 84:21-85:1, 110:13-24).
26 56 TTABVUE; Brennan Disc. Dep. p. 76 (deposition taken on March 26, 2009).
27 Id.
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“customers demanded that there be – that they do business in the United States.
They did not wish to do business in Russia.”28
Opposer concedes that Applicant also had a “Russian branch” that formed later in
1999, located in the city of Novosibirsk.29 According to Brenan, Vaschenko “was
employed by Novosoft Inc. [Applicant] at its Russian branch and was granted a Power
of Attorney by Novosoft Inc. to operate the Russian branch,” and in his position, he
was “to ensure that revenues sent to the branch for its operating costs were used to
cover those costs.”30 The referenced power of attorney was issued on June 23, 1999.31
Between approximately 1999 to some point in 2003, Applicant was involved in an
arrangement whereby computer software programmers in Russia would provide
software or computer services to customers in the United States and the customers
would receive invoices directly from Applicant’s Russian branch “project managers.”32
Payments received from the customers for the software services were sent directly to
Applicant’s address in the U.S. and deposited into a bank account in the U.S. that
Applicant controlled. According to Applicant’s CFO, Eure, there was an arrangement
whereby 90% of these proceeds then “went to Russia to pay everybody and do – run
the business over in Russia, the rent and all this other good stuff” and the remaining

28 Id. at 177.
29 105 TTABVUE, Opposer’s response to Applicant’s Interrog. No. 4.
30 101 TTABVUE, Brenan Decl. ¶ 13; 56 TTABVUE, Brenan disc. dep. Exhib. 2.
31 102 TTABVUE, Brenan Disc. Dep. p. 90.
32 55 TTABVUE, Eure Disc. Dep. 33:19-34:9.
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10% remained in the bank account or was paid to Brenan.33 According to Eure, she
understood that the money being sent to Russia was being sent within the same
company (Applicant) “because it was just one big company.”34 Applicant declared
100% of the proceeds as income on tax returns but did not receive expense or cost
invoices from Vaschenko or from Russia to justify any of Applicant’s internal
expenditures because “[Applicant] had a full staff over there [in Russia] of
accountants and attorneys.”35
With regard to the actual use of the mark at issue, HANDY BACKUP, on software
or in connection with related computer services, the evidence before us is scant.
Specifically, the record is devoid of the usual types of evidence, such as invoices,
labels, and advertisements for the goods or services, showing use of the mark in
connection with the involved goods and services. In his discovery deposition, Brenan
offered testimony indicating that he had limited knowledge and no real direct
oversight with respect to the development and sale of the HANDY BACKUP software.
For example, Brenan testified that he did not hire or fire any programmers that
worked for the Applicant;36 that he was unaware who supervised the development of
the software products on behalf of Applicant, including who in particular developed
Handy Backup;37 that he only visited the HANDY BACKUP website

33 103 TTABVUE, Eure Disc. Dep. p. 28.
34 Id. at p. 38.
35 Id. at pp. 37-38.
36 56 TTABVUE, Brenan Disc. Dep. 72:23-73:8.
37 Id. at p. 112.
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(www.handybackup.com) “once or twice” and does not know who created the
website;38 and on the question of whether the packaging and the marketing design
for the HANDY BACKUP product was all done in Russia, he replied that he has “no
information that will tell me whether it was done there or anywhere else.”39
On the other hand, Brenan also testified in his discovery deposition that he was
involved in Applicant’s projects to the extent that he was “in computer software
industry parlance, … holding the customer’s hand and guiding them through the
most efficient way of getting the results that they desired by deploying part of their
projects to programmers in [Russia].”40 Also, “[i]f the customer was unhappy with the
results or wished to talk to me, I was always available and often had to be available
to try and assist customers in getting the best from the people in [Russia].”41
Furthermore, despite being personally unaware of the individual programmer(s) who
were responsible for developing any of the software products on behalf of Applicant,
Brenan testified that the software development endeavors were done “at my request
with the money that I was supplying.”42 Specifically, he testified that the money that
was directed to develop the HANDY BACKUP software came from the 10% due to
Applicant (or Brenan) from the profits of the software services.43 According to Brenan,

38 Id. at p. 135.
39 Id.
40 102 TTABVUE, Brenan Disc. Dep. 85:23-86:2.
41 Id., 93:1-5.
42 Id.
43 102 TTABVUE; Brenan Disc. Dep. p. 113-115, including 113:10-17 (“[Applicant] would
forgo future profits in order to fund this effort as long as [Applicant] saw progress, and that
is what happened.”)
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he spoke with Vaschenko by telephone “in either 2000 or 2001” and that is when
Applicant decided to develop “a range of [software] products.”44 As to the impetus in
developing a software product used for backing up data, Brenan stated that Applicant
at some point was in “need [of] some extra budget to buy some backup software,” and
Brenan believed that Applicant should not “buy any backup software … we’re a
software company. That’s the sort of thing we should write.”45 Brenan testified that
“Handy Backup was one [software] product among several.”46
In his declaration testimony, Brenan was more assertive regarding Applicant’s
involvement and ownership of the HANDY BACKUP mark and testified as follows:47
• Applicant owns the Handy Backup software and has sold the software to the
public, including through internet sales, under the Handy Backup name since
2002.48

• At all times at issue, the Russian branch of Applicant was wholly owned and
controlled by Applicant.49

• The Handy Backup software was developed by Applicant. The software
includes work done at the Russian branch of Applicant.50

• To my knowledge, Applicant has never had any business relationship with
Opposer.51

44 Id., 111:14-22.
45 Id., 111:5-10.
46 Id., 121:11.
47 101 TTABVUE.
48 Id.; Brenan Dec. ¶ 6.
49 Id., ¶ 10.
50 Id., ¶ 11.
51 Id., ¶ 15.
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In early 2003, Vaschenko and Brenan “had a dispute … in regard to [Vaschenko’s]
use of [Applicant’s] funds.”52 On April 15, 2003, Applicant rescinded the Vaschenko
power of attorney.53 On May 29, 2003, a contract was executed in Russia involving
“the transfer of the exclusive right to [the HANDY BACKUP] software” from
Applicant to Opposer.54 Despite Vaschenko’s power of attorney having been already
rescinded, the contract was executed on behalf of Applicant by Vaschenko, who is
identified in the contract as Applicant’s “Deputy Director of the Novosibirsk branch”
and as having “Power of Attorney.”55 This contract, however, was declared “invalid”
by a Russian Federation “Novosibirsk Region Arbitration Court” on May 28, 2010.56
In November 2003, Applicant was temporarily in Chapter 11 bankruptcy status,
but Brenan has testified that he believed Applicant remained the owner of the
HANDY BACKUP trademark during this time.57 And although the HANDY
BACKUP software was not specifically included in Applicant’s list of assets in
bankruptcy filings, Brenan testified that “the trademark and the claim to own Handy
Backup were intangible assets that could be safely included under goodwill.”58

52 Id. at ¶ 14.
53 56 TTABVUE, Brenan Disc. Dep. Exhib. 11.
54 62 TTABVUE, Kugaevskaya Exhib. No. 29.
55 Id.
56 101 TTABVUE, Brenan Dec. ¶ 18, Exhib. A.
57 56 TTABVUE, Brenan Disc. Dep. p. 169.
58 Id. at 225.
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III. Opposer’s Standing
Standing is a threshold issue that a plaintiff must prove 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). “The facts regarding standing ... are part of [a plaintiff’s] case
and must be affirmatively proved. Accordingly, [plaintiff] is not entitled to standing
solely because of the allegations in its petition.” Lipton Indus., Inc. v. Ralston Purina
Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Our primary reviewing court
has enunciated a liberal threshold for determining standing: a plaintiff must
demonstrate that it has a “real interest” in a proceeding beyond that of a mere
intermeddler, and “a reasonable basis for his belief of damage.” Empresa Cubana,
111 USPQ2d at 1062 (quotation omitted). A “real interest” is a “direct and personal
stake” in the outcome of the proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023, 1026 (Fed. Cir. 1999).
Opposer’s standing in this proceeding is established by Applicant’s admissions in
its Answer that Opposer has “sold products at some point containing the HANDY
BACKUP trademark” and that Opposer has filed an application to register the mark
HANDY BACKUP that has been suspended pending the outcome of this proceeding.59
Lipton Indus. 213 USPQ at 189; see also, King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1436 n.7 (TTAB 2012). These admissions, alone, clearly demonstrate
Opposer’s standing as plaintiff, and that it is not a mere intermeddler, and has a

59 33 TTABVUE; Answer ¶¶ 3-4.
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reasonable basis for its belief of damage resulting from registration of the HANDY
BACKUP mark. Ritchie v. Simpson, 50 USPQ2d at 1025-26.
IV. Opposer’s Non-Ownership Claim
Under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), only the owner may apply
to register a mark. Whoever controls the nature and quality of goods sold under a
mark is the owner of that mark. See In re Wella A.G., 229 USPQ 274, 278 (Fed. Cir.
1986). Under Trademark Act Section 5, 15 U.S.C. § 1055
Where a registered mark or a mark sought to be registered is or may be
used legitimately by related companies, such use shall inure to the benefit
of the registrant or applicant for registration, and such use shall not affect
the validity of such mark or of its registration, provided such mark is not
used in such manner as to deceive the public.

“The term ‘related company’ means any person whose use of a mark is controlled
by the owner of the mark with respect to the nature and quality of the goods or
services on or in connection with which the mark is used.” Trademark Act Section 45,
15 U.S.C. § 1127.
As plaintiff in this proceeding, Opposer must prove its claims by a preponderance
of the evidence. See Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d
1303, 1305 (Fed. Cir. 2002) (“The burden of proof rests with the opposer ... to produce
sufficient evidence to support the ultimate conclusion of [priority of use] and
likelihood of confusion.”); Sanyo Watch Co. v. Sanyo Elec. Co., 691 F.2d 1019, 215
USPQ 833, 834 (Fed. Cir. 1982) (“As the opposer in this proceeding, appellant bears
the burden of proof which encompasses not only the ultimate burden of persuasion,
but also the burden of going forward with sufficient proof of the material allegations
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of the Notice of Opposition, which, if not countered, negates appellee’s right to a
registration.”).
On the record before us and based on the entirety of the evidence, we find that
Opposer has not carried its burden of demonstrating by a preponderance of the
evidence that Applicant was not the owner of the HANDY BACKUP mark on July 31,
2003, when Applicant filed the involved application. Brenan’s declaration testimony
clearly sets forth statements, albeit in a general and conclusory manner, that the
HANDY BACKUP software was developed by Applicant through work done at its
Russian branch and that Applicant “sold the software to the public, including through
internet sales, under the Handy Backup name since 2002.” The evidence that
Opposer relies on, consisting mainly of its own business records and the discovery
deposition testimony of Applicant’s officers, Brenan and Eure, does not directly
contradict or sufficiently rebut Brenan’s declaration testimony. That is, although
Brenan testified during his discovery deposition that he has no personal knowledge
regarding the names of individuals responsible for the development of the HANDY
BACKUP software, he has further testified that Applicant was the owner of the
software and was responsible for its development through its Russian branch. His
discovery deposition testimony did not establish that Applicant was not involved in
controlling the nature and quality of the software.
There is also no evidence to support Opposer’s allegations and argument that it
was actually the entity responsible for rendering the services in Russia and that it
developed the HANDY BACKUP software for sale in the United States. Again, there
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are no invoices or advertisements indicating that Opposer, Novosoft, L.L.C., was the
source of the HANDY BACKUP goods or services. Indeed, both Brenan and Eure
testified that they were not even aware of Opposer during the years that Vaschenko
was involved with Applicant.
We further find that the now-invalidated contract between Opposer and Applicant
(signed by Vaschenko, purportedly acting under power of attorney for Applicant)
corroborates Applicant’s contention that at all times, including on the date of
execution of the contract, on May 29, 2003, Applicant was the owner and had all
rights to the HANDY BACKUP software. In other words, there would have been no
reason for Opposer to attempt to enter into a contract to purchase any rights in the
software from Applicant if it did not believe Applicant was the owner of the HANDY
BACKUP software.
Ultimately, Opposer has not shown by a preponderance of the evidence that
Applicant was not the owner of the HANDY BACKUP mark in connection with
computer software goods identified in Class 9, let alone the services in Class 42, at
the time of filing the involved application. Accordingly, Opposer’s non-ownership
claim is dismissed.
V. Opposer’s Other Grounds for Opposition
In its trial brief, Opposer does not argue any of the other grounds asserted in the
notice of opposition – namely, likelihood of confusion, false suggestion of a connection
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with Opposer, and fraud.60 Because Opposer did not pursue any of these claims, they
are waived and not before us. See Shael Norris v. PAVE: Promoting Awareness,
Victim Empowerment, 2019 USPQ2d 370880 n.2 (TTAB 2019) (unpursued claims not
considered before the Board); see also Alcatraz Media, Inc. v. Chesapeake Marine
Tour Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner’s pleaded descriptiveness
and geographical descriptiveness claims not argued in brief deemed waived), aff’d
mem., 565 F. App’x 900 (Fed. Cir. 2014). In any event, we note that the premise
behind Opposer’s non-ownership claim, which it has failed to prove by a
preponderance of the evidence, also serves as the basis for the other pleaded grounds.
That is, Opposer’s contention that it is the owner of the HANDY BACKUP mark, and
not Applicant, also underlies Opposer’s claim of ownership of a previously-used and
confusingly similar mark, false suggestion of a connection with Opposer, and
essentially serves as the purported false and material misrepresentation constituting
fraud before the Office. Thus, even if these claims were not waived, we would find
that because Opposer’s contention of ownership of the mark has not been proven, it
cannot prevail on the other claims.
Decision: The opposition is dismissed.

60 Opposer’s brief (107 TTABVUE) and reply brief (109 TTABVUE) are not specimens of
clarity. We appreciate that Opposer is a pro se party and this is permissible under Trademark
Rule 11.14; however, we further note that the Board allowed Opposer time to obtain counsel
(after Opposer’s prior counsel withdrew representation) and alerted Opposer that it is
“advisable for a person who is not acquainted with the technicalities of the procedural and
substantive law involved in inter partes proceedings to secure the services of an attorney who
is familiar with such matters.” 97 TTABVUE.