Sparrow LLCv.Jonathan Fitch

Trademark Trial and Appeal Board

Aug 7, 2012

No. 91196902 (T.T.A.B. Aug. 7, 2012)

Mailed: August 7, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Sparrow LLC
v.
Jonathan Fitch
_____

Opposition No. 91196902
to application Serial No. 77825285
filed on September 11, 2009

_____

Jon M. Leader of Leader Gorham LLP for Sparrow LLC.

Jonathan Fitch, pro se.
______

Before Seeherman, Quinn and Kuczma, Administrative Trademark
Judges.

Opinion by Kuczma, Administrative Trademark Judge:

Jonathan Fitch (“applicant”) filed an intent-to-use
application under § 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b), to register the mark “LOVE n LIFE,” in standard
character form1 on the Principal Register for “Shirts; T-
shirts; Tee shirts” in Class 25.
Sparrow LLC (“opposer”) filed a notice of opposition
against the registration of applicant’s mark on the grounds
of priority of use and likelihood of confusion, and

1 Application Serial No. 77825285.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91196902
2
dilution, pursuant to §§ 2(d) and 43(c) of the Trademark Act
of 1946, 15 U.S.C. §§ 1052(d) and 1125(c), respectively.2
Specifically, opposer alleged that applicant’s “LOVE n LIFE”
mark for shirts and T-shirts is likely to cause confusion
with and dilute opposer’s previously used and registered
“LIFE NATURE LOVE” mark, in typed form,3 for “clothing,
namely jackets, sweaters, vests, sweat shirts, sweat pants,
shirts, blouses, Ft-shirts (sic), pants, jeans, shorts,
skirts, dresses, swim wear, cover-ups, head wear and
footwear” in Class 25, and various products in Class 18.4
Though worded unartfully, applicant’s response to the
notice of opposition effectively denies the salient
allegations in the notice of opposition. Neither party

2 The grounds for opposition designated by opposer on the ESTTA
cover sheet also included deceptiveness, false suggestion of a
connection and an “other” ground for unfair competition. While
the content of the ESTTA cover sheet is considered part of the
notice of opposition, PPG Industries Inc. v. Guardian Industries
Corp., 73 USPQ2d 1926, 1928 (TTAB 2005), opposer made no specific
allegations in its notice of opposition nor raised any arguments
in its appeal brief regarding these grounds. Therefore, these
grounds are deemed to be waived.

3 In 2003, Trademark Rule 2.52(a) was amended to refer to “typed”
drawings as “standard character” drawings. See Trademark Rule
2.52(a); 37 C.F.R. § 2.52(a); TMEP § 807.03(i) (8th ed.).

4 Registration No. 2856929, issued June 22, 2004. The following
Registrations, which are not relevant, were also pleaded in the
notice of opposition: No. 2925845 for the mark FREE CITY in
Classes 18 and 25; No. 3064253 for the mark FREE CITY in Class
35; No. 3724842 for the mark FREE CITY LETSGO in Class 25; and
No. 3855750 for the mark (depiction of humming bird in
flight) in Class 25.

Opposition No. 91196902
3
submitted testimony or evidence and only opposer filed a
brief.
The Record
No testimony or evidence was submitted by either party
during their respective testimony periods, and the listing
of opposer’s registration numbers into ESTTA, the Board’s
on-line filing system, at the time of filing the notice of
opposition is insufficient to make the pleaded registrations
of record. Therefore, the record is limited to the
applicant’s application file and the pleadings. See Melwani
v. Allegiance Corp., 97 USPQ2d 1537, 1540 (TTAB 2010) and 37
CFR § 2.122(b), Trademark Rule 2.122(b).5
Opposer’s Standing
Standing is a threshold issue that must be proven by a
plaintiff in every inter partes case. John W. Carson
Foundation v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB
2010) citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023, 1025 (Fed. Cir. 1999) and Lipton Industries, Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA

5 In its appeal brief, opposer notes applicant’s failure to
appear for a properly noticed testimony deposition. Applicant’s
failure to appear for his testimony deposition is without
consequence in view of opposer’s failure to secure applicant’s
attendance at the deposition via subpoena, and the complete lack
of evidence in support of opposer’s position on the merits. See
Stockpot, Inc. v. Stock Pot Restaurant, Inc., 220 USPQ 52, 55 n.7
(TTAB 1983) (no adverse inference can be drawn from adverse
party's failure to appear and produce requested documents at
testimony deposition where party attempted to secure attendance
by notice alone), aff'd, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir.
1984) and TBMP § 703.01(f)(1) (3d ed. rev. 2012).
Opposition No. 91196902
4
1982). There is nothing in the record evidencing opposer’s
ownership of any registrations, or prior common law rights
based on use of a trademark or trade name.6 Accordingly,
opposer has not proved that it has any real interest in the
proceeding and the opposition must be dismissed for
opposer's lack of standing. Lumiere Productions, Inc. v.
International Telephone and Telegraph Corp., 227 USPQ 892,
893 (TTAB 1985).
Substantive Grounds
Opposer also bears the burden of proof which
encompasses the obligation of going forward with sufficient
proof of the material allegations of the notice of
opposition. Sanyo Watch Co., Inc. v. Sanyo Electric Co.,
Ltd., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir. 1982).
Opposer asserts numerous “facts” in its appeal brief.
However, there is no support in the record for such
statements. Accordingly, they are given no consideration.
See TBMP § 704.06(b) (3d ed. rev. 2012). Inasmuch as there
is no evidence in the record and no admissions by applicant,
opposer has failed to prove any of its pleaded claims.
Therefore, the opposition is dismissed.

6 The exhibits accompanying the Notice of Opposition and
Plaintiff/Opposer Sparrow LLC’s Main [Appeal] Brief allegedly
showing clothing items bearing some of opposer’s trademarks are
given no consideration as they were not properly made of record
during opposer’s testimony period. See Syngenta Crop Protection
Opposition No. 91196902
5

Decision
The opposition to registration of the mark shown in
Serial No. 77825285 is dismissed with prejudice.

Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1116 (TTAB 2009), 37 C.F.R.
§ 2.122(c) and TBMP §§ 704.05 (a) and (b) (3d ed. rev. 2012).