Pop Shoppe LLCv.Mark Anthony Dean DBA Flavors and Favors

Trademark Trial and Appeal Board

Sep 13, 2018

No. 91232702 (T.T.A.B. Sep. 13, 2018)

DUNN Mailed: September 13, 2018

Opposition No. 91232702
Pop Pop Shoppe LLC

v.
Mark Anthony Dean DBA Flavors and
Favors

Before Zervas, Kuczma, and Coggins, Administrative Trademark Judges.

By the Board:
This case comes up on Opposer’s motion for summary judgment on the pleaded
claim of priority of use and likelihood of confusion. The motion is contested.1
BACKGROUND
On September 7, 2016, Applicant filed an application alleging first use anywhere
and first use in commerce since October 17, 1973 of the mark ROCKET POP
(standard characters) for:
candies; candy; candy bark; candy bars; candy cake decorations; candy
containing alcoholic beverage content and flavor; candy decorations for cakes;
candy for food; candy mints; candy necklaces; candy sprinkles; candy with
caramel; candy with cocoa; candy, namely, dragées; candy-coated apples;
candy-coated popcorn; frozen confections; frozen confections, namely, freezer

1 No consideration will be be given to Applicant’s motion filed May 17, 2018 to dismiss the
opposition for failure to prosecute. After the motion for summary judgment was filed, the
Board suspended proceedings, including Opposer’s trial period, effective March 26, 2018, the
filing date of the motion. Accordingly, Opposer’s trial period has not passed, and there has
been no failure to submit evidence.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
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bars; frozen confections, namely, freezer pops; frozen confections, namely, ices;
frozen yogurt confections; popcorn; arrangements of candy; bakery goods and
dessert items, namely, cakes, cookies, pastries, candies, and frozen confections
for retail and wholesale distribution and consumption on or off the premises;
bakery goods and dessert items, namely, cakes, cookies, pastries, candies, and
frozen confections for retail and wholesale distribution and consumption on or
off the premises; brittle; candy-coated popcorn; caramel popcorn; chocolate
candies; chocolate covered popcorn; chocolate-coated nuts; chocolates and
chocolate based ready to eat candies and snacks; comfits; cotton candy; energy
candy; flavor-coated popped popcorn; freezable liquid for use in making
frozen confections; fruit jelly candy; gift baskets containing candy; gift baskets
containing popcorn; glazed popcorn; gummy candies; ice candies;
jawbreakers; kettle corn; mexican candy; microwave popcorn; mixes for candy
making; non-dairy frozen confections; peppermint candy; popped popcorn;
pre-processed mixes for making non-dairy frozen confections; processed
popcorn; processed unpopped popcorn; snack mix consisting primarily of
crackers, pretzels and/or popped popcorn; snack mix consisting primarily of
crackers, pretzels and/or popped popcorn; spumoni; starch-based candies
(ame); sugarless candies; sweets; trail mix consisting primarily of pretzels,
popcorn, and crackers, and also including dried fruit, chocolate, processed nuts;
turkish delight; unpopped popcorn; yogurt-covered nuts

(application Serial No. 87162596) (emphasis added).
On February 6, 2017, Opposer filed a notice of opposition pleading that Opposer
is the senior user of the mark ROCKET POP, and owner of pending application Serial
No. 87290312 alleging use in commerce since July 31, 2016, for the identical mark
ROCKET POP (standard characters) for “popcorn food products” which are more
specifically listed as “popcorn; flavor-coated popped popcorn; glazed popcorn; popped
popcorn; processed popcorn” on the ESTTA cover sheet accompanying the notice of
opposition. Relevant to this motion, the notice of opposition pleads claims of priority
of use and likelihood of confusion under Trademark Act Section 2(d); and pleads that
notwithstanding Applicant’s listing of more than 50 food items, Applicant uses his
mark on none of the items, and that Applicant filed a photo of Opposer’s packaged
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popcorn bearing the ROCKET POP mark as Applicant’s specimen of use. Applicant,
acting pro se, filed an answer which denies the salient allegations of the notice of
opposition, pleads affirmative defenses, and explains his efforts to submit a
substitute specimen to the trademark application file.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is only appropriate where there are no genuine disputes as to
any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). The party seeking summary judgment bears the burden of
demonstrating the absence of any genuine dispute of material fact, and that it is
entitled to judgment under the applicable law. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). While the initial burden on a motion for summary judgment is on the
movant, if the movant’s position is supported by affidavits and/or other evidence, the
responding party must come forward with specific materials of its own to show that
there are triable issues of fact or must demonstrate why it cannot do so. Pure Gold,
Inc. v. Syntex (U.S.A.) Inc., 739 F.2d 624, 222 USPQ 741 (Fed. Cir. 1984); Enbridge,
Inc. v. Excelerate Energy LP, 92 USPQ2d 1537, 1540 (TTAB 2009).
Assertions, without evidentiary support, are insufficient to defend against a prima
facie case for summary judgment. See Hornblower & Weeks Inc. v. Hornblower &
Weeks Inc., 60 USPQ2d 1733, 1739 (TTAB 2001).
A party moving for summary judgment in its favor on a priority and likelihood of
confusion claim must establish that there is no genuine dispute that (1) it has
standing to maintain the proceeding; (2) it is the prior user of its pleaded mark or
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marks or the owner of a valid and subsisting federally registered mark; and (3)
contemporaneous use of the parties’ respective marks in connection with their
respective goods or services would be likely to cause confusion, mistake or to deceive
consumers. Compagnie Gervais Danone v. Precision Formulations LLC, 89 USPQ2d
1251, 1253 (TTAB 2009).
RECORD EVIDENCE
Opposer submits the declaration of its managing member Patrick Thornton in
support of its motion for summary judgment.2 Mr. Thornton’s sworn statement avers
that Opposer has used the mark ROCKET POP for popcorn products since at least as
early as July 31, 2016 and Opposer owns a pending application for the mark ROCKET
POP for popcorn food products. Mr. Thornton’s declaration also avers that Applicant
submitted Opposer’s ROCKET POP popcorn packaging as Applicant’s specimen of
use in support of Applicant’s application; that, based on his 29 years of residence in
Texarkana, Texas, the same city listed as Applicant’s residence, Mr. Thornton has
not seen any evidence of use of the mark by Applicant; and that Applicant has
repeatedly failed and refused to provide tangible evidence establishing use for any
goods listed in the opposed application.

2 Declarations may be submitted in support of, or in opposition to, a motion for summary
judgment provided that they are “made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). The statements in Mr. Thronton’s declaration are
clear, internally consistent, and uncontroverted. See Hornblower & Weeks, 60 USPQ2d at
1736 (opposer’s declaration, while not accompanied by any documentary evidence, was
internally consistent, not characterized by uncertainty and was unchallenged by applicant);
4U Co. of Am., Inc. v. Naas Foods, Inc., 175 USPQ 251, 253 (TTAB 1972) (fact that allegations
in affidavit not supported by invoice does not undermine the testimony when uncontradicted).
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Applicant filed no evidence with his brief in opposition to the motion.
DISCUSSION
The uncontroverted evidence that Opposer uses the common law mark ROCKET
POP on the same or related goods is sufficient to establish Opposer’s real interest in
the proceeding and a reasonable basis for its belief of damage. Empresa Cubana del
Tabaco, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (citing Ritchie v. Simpson, 170 F.3d
1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)); Books on Tape, Inc. v. The Booktape
Corp., 836 F.2d 519, 5 USPQ2d 1301, 1302 (Fed. Cir. 1987); Giersch v. Scripps
Networks, Inc., 90 USPQ2d 1020, 1022 (TTAB 2009). Moreover, the uncontroverted
evidence that Opposer has filed a pending application for the same mark for similar
goods also provides a legal basis for Opposer’s standing. Spirits Int’l B.V. v. S.S. Taris
Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 USPQ2d 1545, 1548
(TTAB 2011). Accordingly, there is no genuine dispute of material fact as to Opposer’s
standing to bring this opposition proceeding.
Applicant’s and Opposer’s ROCKET POP marks are identical. Both the opposed
application and Opposer’s pleaded application list “popcorn” and identical popcorn
products as goods with which the ROCKET POP mark is used. Although Opposer’s
pleaded application is not in evidence, Mr. Thornton’s declaration avers that
Opposer’s ROCKET POP mark has been in use with popcorn products since at least
as early as July 31, 2016. Mr. Thornton’s averment of use since at least July 31, 2016
is accompanied by an example of Opposer’s use of the mark (as Attachment A to the
declaration) showing the mark ROCKET POP on a package of popcorn.
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Based on the uncontroverted evidence that Opposer uses the mark ROCKET POP
on popcorn, and because Applicant seeks to register the identical mark for identical
goods (i.e., popcorn), there is no genuine dispute regarding the likelihood of confusion.
Perma Ceram Enters. Inc. v. Preco Indus. Ltd., 23 USPQ2d 1134, 1136 (TTAB 1992)
(“[T]here is no genuine issue of material fact regarding the pleaded ground of
likelihood of confusion ... [in a proceeding involving] contemporaneous use of the
identical mark for identical or virtually identical goods.”). Accord L.A. Bonaventure
Co. v. Bonaventure Assocs., 4 USPQ2d 1882 (TTAB 1987) (“Inasmuch as the present
case involves identical marks (‘BONAVENTURE’) and identical services (hotel
services), there is no genuine issue of material fact as to likelihood of confusion, and
it is clear that there is likelihood of confusion as a matter of law.”). See also Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981) (A likelihood of confusion may be found with respect to a particular class based
on any item within the identification of goods for that class); In re i.am.symbolic, llc,
116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed.
Cir. 2016).
Applicant’s constructive use date is September 7, 2016, the date that his
application for the mark ROCKET POP for, among other goods, popcorn, was filed.
Trademark Act Section 7(c); Media Online Inc. v. El Clasificado, Inc., 88 USPQ2d
1285, 1288 (TTAB 2008). Mr. Thornton’s clear, consistent, and uncontroverted sworn
statement avers that Opposer has used the mark ROCKET POP for popcorn products
since at least as early as July 31, 2016, a date earlier than Applicant’s constructive
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use date. As noted earlier, Applicant filed no evidence in support of his brief in
opposition to the motion. Particularly, Applicant submitted no evidence that he is
entitled to a priority date earlier than his constructive use date of September 7, 2016,
nor any evidence that would raise a genuine dispute as to Opposer’s claimed priority
date of July 31, 2016. Moreover, Applicant’s response to the motion for summary
judgment does not dispute that Opposer has used the mark ROCKET POP on popcorn
products since at least July 31, 2016. Accordingly, there is no genuine dispute
regarding Opposer’s priority, i.e., that Opposer is the prior user of the ROCKET POP
mark.
Applicant’s response to the motion for summary judgment appears to be based on
his belief that the USPTO’s January 5, 2017 acceptance of Applicant’s substitute
specimen of use removed the factual basis for Opposer’s claim that Applicant had not
used the ROCKET POP mark prior to Opposer, so that the allegations of his
application regarding the goods with which Applicant’s mark is used, and the specific
date on which Applicant began that use, do not have to be proven. Applicant is
mistaken. Trademark Rule 2.122(b)(2) (neither the allegation of a date of use nor the
specimen in the file of an application is evidence on behalf of the applicant unless
respectively established by competent evidence or identified and introduced in
evidence). See also Brown Shoe Co. v. Robbins, 90 USPQ2d 1752, 1755 (TTAB 2009)
(“[W]hile the application is of record, the allegations in the application are not facts
and must be proven during trial.”).
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Applicant, without explanation, pastes the affirmative defenses pleaded in his
answer, plus another five affirmative defenses, into his response to the motion for
summary judgment. No consideration is given to the “new” affirmative defenses.
Applicant previously pleaded the affirmative defenses that the notice of opposition
fails to state a claim for relief, and that the equitable defenses of laches, acquiescence,
waiver, or estoppel bar Opposer’s requested relief.3 As discussed, Opposer’s claim of
priority of use and likelihood of confusion has been both pleaded and proven.
Applicant’s pleading of the equitable affirmative defenses includes no supporting
allegations, and thus is legally insufficient. In any event, Applicant submitted no
evidence in support of any of these defenses, and so the Board finds no bar to granting
Opposer’s motion for summary judgment.
DECISION
Inasmuch as Opposer has supported its motion with sufficient evidence that
demonstrates that there is no genuine dispute as to standing, priority, and a
likelihood of confusion, and Applicant has not succeeded in rebutting the evidence by
demonstrating the existence of a genuine dispute of material fact to be resolved at
trial, the motion for summary judgment on the claim of priority of use and likelihood
of confusion is granted, the opposition is sustained on that ground, and registration
to Applicant is refused.

3 The answer also pleaded that Applicant reserves the right to bring other defenses, but a
defendant cannot reserve unidentified defenses since it does not provide a plaintiff fair notice
of such defenses.
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Because we have entered judgment against Applicant on Opposer’s claim of
likelihood of confusion, the Board need not reach the remaining grounds in the notice
of opposition. The proceeding will be terminated in due course.