Super Sabre Societyv.Lester G. Frazier

Trademark Trial and Appeal Board

May 5, 2017

No. 91223853 (T.T.A.B. May. 5, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed:
May 5, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Super Sabre Society
v.
Lester G. Frazier
_____
Opposition No. 91223853
_____
Peter Collins Jr. of Gust Rosenfeld, PLC for Super Sabre Society.

James O. Guleke II for Lester G. Frazier.
_____

Before Cataldo, Adlin, and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

Lester G. Frazier (“Applicant”) filed applications1 to register on the Principal
Register the two marks shown below:

1 Application Serial No. No. 86346297, filed on July 23, 2014, and Application Serial No.
86347249, filed on July 24, 2014, both based on Applicant’s asserted use of the mark in
commerce, under Trademark Act Section 1(a), 15 U.S.C. 1051(a).
Opposition No. 91223853
2

In each application, Applicant disclaimed the exclusive right to use SUPER SABRE
SOCIETY apart from the mark as shown. The design elements of the marks are
described in each application as “an F-100 Super Sabre aircraft” and “a sword.” In
Serial No. 86346297, the colors red, white, blue and black are claimed as features of
the mark. In Serial No. 86347249, color is not a feature of the mark. The marks
otherwise differ slightly in that the sword in the color mark is reddened at its edge.
Applicant seeks registration of the mark, in both forms, for “Association services,
namely, promoting the interests of and preserving the history of the F-100 Super
Sabre and the men who flew the aircraft,” in International Class 35.
Super Sabre Society (“Opposer”), a Utah corporation, opposed registration of the
marks on the grounds that: Applicant does not own them; they so resemble Opposer’s
earlier used marks as to be likely to cause confusion, mistake or deception under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); Applicant filed the
applications in “bad faith” in order to “influence [Opposer’s] Board to achieve a
position of power in the organization”; and dilution. In the notice of opposition,
Opposer, in the alternative, “moves the Board to assign concurrent registrations, to
Applicant and [Opposer],” but Opposer has not filed a concurrent use application. 2
In his answer, Applicant admits, as Opposer alleges, that he “was the founder of
the Super Sabre Society, and its first CEO. He was on the Board of Directors for many

2 Issuance of concurrent use registrations is not an available remedy in an opposition
proceeding. The Board “will consider and determine concurrent use rights only in the context
of a concurrent use registration proceeding.” 37 C.F.R. § 2.99(h). A concurrent use proceeding
can be generated only by filing a concurrent use application meeting the requirements of
Trademark Act Section 1(a)(3)(D), 15 U.S.C. § 1051(a)(3)(D). See, TBMP Chapter 1100. We
have given no consideration to Opposer’s request for concurrent use registrations.
Opposition No. 91223853
3

years, and helped to guide the organization through its early years.”3 He also admits
that Opposer has used the marks at issue.4 Applicant otherwise denied the salient
allegations of the notice of opposition. Applicant asserted, as affirmative defenses,
unclean hands, laches, waiver, estoppel, acquiescence, fraud, as well as many
“defenses” potentially relevant in certain other types of litigation that do not appear
to have relevance to an opposition proceeding.5 Applicant did not address his
affirmative defenses in his brief. We therefore consider them waived. The case is fully
briefed.
I. Evidentiary matters.
Opposer proffered the testimony depositions of six witnesses, and Applicant has
objected to the admission of all of them.
The objection to the deposition of Donald W. Shepperd on the ground that it was
taken “past the close of the discovery period”6 is not well taken and is overruled. The
deposition is testimony pursuant to Trademark Rule 2.123, was not a discovery
deposition and was timely.
Applicant’s objection to the other five depositions requires more discussion. The
witnesses in those depositions were William A. Gorton, Robert Medley Gatewood,
Robert Noel Hopkins, Duane William Clawson, and Winslow E. Reither. Each

3 Answer ¶ 41; see also id. ¶ 8; 4 TTABVUE 16, 11.
4 Id. ¶ 3, 4, 18, 4 TTABVUE 10, 12.
5 “Failure of consideration, statute of frauds, … no proximate causation, new and independent
cause, sole proximate cause, no causal connection, failure to mitigate, assumed risk,
comparative fault, too speculative loss or damages, ….” 4 TTABVUE 18.
6 Shepperd dep. at 7:3-4, 6 TTABVUE 13.
Opposition No. 91223853
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testified by telephone. In each case, Opposer’s counsel conducted the deposition from
Tucson, Arizona, accompanied by a court reporter. Applicant’s counsel participated
by telephone from Texas. The witnesses testified by telephone from other states and
jurisdictions.7 At the very beginning of each deposition proceeding, Applicant’s
counsel objected on the record to the taking of the deposition on the ground that the
court reporter was not with the witness.8 In several cases, Opposer’s counsel gave no
substantive response to this objection; in two cases, he noted that notice of the
deposition had been given and no objection had previously been raised:
For the record, we will oppose your objection. The notice
was given on July 20th related to this deposition, and no
formal objection has been filed with the board.9
Well, you may have your running objection; however, the
notice was served on July 20, 2016, and there was no
objection filed, and, therefore, we’re moving forward.10
During Applicant’s testimony period, Applicant again voiced his objection in his
notice of reliance:
Defendant has objected to the depositions in their entirety
of [Messrs. Gorton, Gatewood, Hopkins, Clawson, and
Reither] on the grounds that the depositions were not
taken with the witness physically present before a court
reporter who was authorized to administer oaths in the
jurisdiction where the depositions were being taken, as

7 Mr. Gorton was located in Utah; Mr. Gatewood in New Mexico; Mr. Hopkins in Virginia;
Mr. Clawson in Pennsylvania; and Mr. Reither in Washington, DC.
8 See, e.g., Gorton dep. 4:10-18, 6 TTABVUE 185.
9 Hopkins dep. 4:24-5:2, 6 TTABVUE 242.
10 Clawson dep. 5:2-5, 6 TTABVUE 264.
Opposition No. 91223853
5

required by the Taking Testimony Rule under TBMP Rule
703, et seq.11
Neither party made reference to Applicant’s objection in its brief.
Applicant’s objection was seasonably made. The relevant Trademark Rules state:
All objections made at the time of an oral examination …
to the manner of taking it …shall be noted by the officer
upon the deposition. Evidence objected to shall be taken
subject to the objections.
37 C.F.R. § 2.123(e)(4).
(i) Effect of errors and irregularities in depositions. Rule
32(d)(1), (2), and (3)(A) and (B) of the Federal Rules of Civil
Procedure shall apply to errors and irregularities in
depositions. Notice will not be taken of merely formal or
technical objections which shall not appear to have
wrought a substantial injury to the party raising them; and
in case of such injury it must be made to appear that the
objection was raised at the time specified in said rule.
37 C.F.R. § 2.123(i).
The Federal Rule of Civil Procedure referred to in the Trademark Rule quoted above,
Fed. R. Civ. P. 32(d)(3)(B), provides that an objection to an irregularity at an oral
examination is waived if “(i) it relates to the manner of taking the deposition … and
(ii) it is not timely made during the deposition.” Here, Applicant’s objection was
timely made, in each case at the opening of the deposition at issue. There is nothing
in the record to show that Applicant had prior knowledge of the intended manner of
taking the depositions. There was nothing in any of the five notices of deposition to
notify Applicant that the witness would not be in the presence of the court reporter.
Each notice of deposition stated that the “PLACE OF DEPOSITION” would be

11 Applicant’s notice of reliance, 9 TTABVUE 4.
Opposition No. 91223853
6

“Tucson, AZ,” and that “[t]he Court Reporter will be present in Tucson, Arizona …”12
Nothing in the notices indicated that the witness would be located elsewhere.
Contrary to Opposer’s suggestion, Applicant was not obligated to file a formal
motion to strike the depositions:
[T]he objections described in this section … generally13
should not be raised by motion to strike. Rather, objections
should simply be made in writing at the time specified in
the rules cited above, or orally ‘on the record’ at the taking
of the deposition, as appropriate. These objections, if
properly asserted and not waived or rendered moot,
normally will be considered by the Board in its
determination of the case at final hearing.
TBMP § 707.03(c) (citing 37 C.F.R. § 123(j)). Rather, a party in Applicant’s position
should expressly maintain its objection in its brief on the case, failing which the Board
may deem the objection waived. In this case, we do not deem Applicant’s objection to
be waived because Applicant restated his objection in his notice of reliance. Although
unorthodox, this repetition of his objection makes clear that Applicant wished to
assert the objection.
Applicant’s objection to the five depositions is sustained. Under Fed. R. Civ. P.
30(b)(4), when a deposition is taken by telephone, “For the purpose of this rule and
Rule[ ] 28(a), … the deposition takes place where the deponent answers the

12 See, e.g., Gorton Ex. 25, 6 TTABVUE 202-5; Gatewood Ex. 32, 6 TTABVUE 236-7; Hopkins
Ex. 34, 6 TTABVUE 256-7; Clawson Ex. 37, 6 TTABVUE 286-287; and Reither Ex. 45, 6
TTABVUE 313-4.
13 Practitioners should note the ellipsis in the quoted language and be aware that that there
are exceptions (not applicable here) to this general practice, including objections to testimony
as late-taken, which may be raised by motion to strike, and objections based on improper or
inadequate notice of the taking of an oral deposition, which must be raised by motion to
strike.
Opposition No. 91223853
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questions.” Rule 28(a) requires that “a deposition must be taken before: (A) an officer
authorized to administer oaths …” “The most logical and obvious construction of these
rules requires the notary or court reporter to be in the presence of the deponent,
rather than in the presence of the attorneys conducting the examination.” Aquino v.
Automotive Service Industry Association, 93 F.Supp.2d 922, 923-4 (N.D. Ill. 2000); see
also Hudson v. Spellman High Voltage, 178 F.R.D. 29, 32 (E.D.N.Y. 1998) (“Spellman
properly asserts that the applicable rules require the notary public to be present with
the witness at a telephonic deposition rather than in the presence of the persons
conducting the examination.”). It is true that the Trademark Rules would have
allowed the parties to agree to modify the procedures for taking the depositions. See
Trademark Rule 2.123(b) (“If the parties so stipulate in writing, depositions may be
taken before any person authorized to administer oaths, at any place, upon any
notice, and in any manner, and when so taken may be used like other depositions.”).
However, in this case there was no such agreement.
The Board very much encourages parties to find efficient and convenient methods
for completing the various steps of the trial process. Indeed, the Board’s amended
rules, effective January 14, 2017 (i.e. not applicable to this case), allow testimony to
be submitted in the form of an affidavit or declaration, subject to the adverse party’s
right to take oral cross-examination of the witness. 37 C.F.R. 2.123(a)(1). However, a
party should not undertake significant departures from prescribed procedures (which
are, themselves, streamlined versions of more traditional procedures) in the absence
of a stipulation or Board order. In this case, Opposer’s method of taking the
Opposition No. 91223853
8

depositions sacrificed important procedural safeguards required by the Federal Rules
of Civil Procedure.14 Therefore, Applicant’s objection is SUSTAINED and the
depositions of Messrs. Gorton, Gatewood, Hopkins, Clawson, and Reither (6
TTABVUE 182-314) have not been considered.15
II. The record.
The record includes the pleadings (except the exhibits attached thereto)16 and, by
operation of Trademark Rule 2.122, 37 C.F.R. § 2.122, the application files for the
opposed marks.
Opposer made of record the following testimony and evidence:
- Testimonial deposition of Major General (Ret.) Donald W. Shepperd, Opposer’s
President, and exhibits thereto (6 TTABVUE 8-181).

- Rebuttal Exhibits Nos. 66-69, admitted by stipulation of the parties as
business records of Opposer (11 TTABVUE).

Applicant has made of record:
- Testimonial deposition of Col. Lester G. Frazier (Applicant) (9 TTABVUE), and
exhibits thereto (10 TTABVUE).

III. 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

14 We base our determination solely upon the fact that in each case the court reporter was
not in the presence of the deponent. Although the issue was not briefed by either party, we
would also be concerned if the court reporter was not authorized to administer an oath to the
out-of-state deponent.
15 Applicant voiced other objections on the record of the Shepperd deposition but did not
maintain them in his brief or, as discussed above, his notice of reliance. We have admitted
the testimony and exhibits for whatever probative value they may have.
16 See 37 C.F.R. § 2.122(c).
Opposition No. 91223853
9

1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015). The plaintiff must
show that it has a real interest in the proceeding beyond that of a mere intermeddler
and that it has a reasonable basis for its belief of damage resulting from registration
of the subject mark. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed.
Cir. 1999).
Opposer has shown that it has used, in connection with association services similar
to those identified in Applicant’s applications, marks that are essentially identical to
the marks that Applicant seeks to register.17 Indeed, Applicant admitted in his
answer that Opposer has used the marks at issue.18 Opposer therefore has a real
interest in this proceeding and a reasonable basis for its belief that it will be damaged
by registration of Applicant’s marks. Giersch v. Scripps Networks, Inc., 90 USPQ2d
1020, 1022 (TTAB 2009) (standing established by showing of common law interest in
a mark).
IV. Ownership of the marks.
We turn, then, to the merits of Opposer’s claim that Applicant is not the owner of
the marks that he seeks to register. An application filed by one who is not the owner
of the mark sought to be registered is void ab initio. Conolty v. Conolty O’Connor NYC
LLC, 111 USPQ2d 1302, 1309 (TTAB 2014). See also, 15 U.S.C. § 1051(a); Huang v.
Tzu Wei Chen Food Co., Ltd., 849 F.2d 1458, 7 USPQ2d 1335 (Fed. Cir. 1988); Holiday
Inn v. Holiday Inns, Inc., 534 F.2d 312, 189 USPQ 630, 635 n.6 (CCPA 1976) (“One

17 Shepperd dep. 20:21-25 and Ex. 13, 6 TTABVUE 13, 113-169. When Opposer displayed the
color mark it often did not include the red on the edge of the sword.
18 Answer ¶¶ 3, 4, 18, 4 TTABVUE 10, 12.
Opposition No. 91223853
10

must be the owner of a mark before it can be registered.”); Great Seats, Ltd. v. Great
Seats, Inc., 84 USPQ2d 1235, 1239 (TTAB 2007) (“In a use-based application under
Trademark Act Section 1(a), only the owner of the mark may file the application for
registration of the mark; if the entity filing the application is not the owner of the
mark as of the filing date, the application is void ab initio.”); Trademark Rule 2.71(d).
The parties do not dispute that in 2005 or 2006, Applicant conceived the idea of an
association of former Air Force pilots who had flown the F-100 aircraft, also known
as the “Super Sabre.” Opposer admits in its brief:
Defendant is the Founder of the Super Sabre Society,
founded for the purpose of honoring and preserving the
memory and history of the F-100 aircraft, and the men who
flew it. While operating as the Founder and organizer of
the Society, Defendant obtained and paid for the creation
of the two marks which are the subject of this litigation.19
Applicant contends that he himself designed the marks on the basis of a photograph
of a particular airplane in “2005 I’d say.”20 He then arranged for digitally reproducible
versions of the marks to be prepared and paid for that process. The receipt for that
service is dated January 31, 2006.21 Applicant stated that he had a list of email
addresses of pilots who had been stationed with him.
… I contacted those people and asked them if they would
be interested in forming a – an F-100 group. Rather than
saying, yes, I would be interested in forming an F-100
group, they said sign me up, I want to be a member, and
that’s when it started. They sent messages to their friends

19 Opposer’s brief at 5, 13 TTABVUE 6.
20 Frazier dep. 8:22-9:5, 24, 9 TTABVUE 19-20.
21 Id. and Frazier Ex. 59, 10 TTABVUE 42.
Opposition No. 91223853
11

and suddenly we had names coming so fast we couldn’t
keep up.22
…
Well, we started keeping the names, and mainly we were –
we were so inundated with names it was just keeping a list
of the names and telling those who had already joined that
here are the new guys that are coming in … Jack Van Loan
was a good friend and he was helping me keep track of it.
Russ Violett was also helping me keep track.23
…
Well, when the names started coming in, Van Loan and I
decided that the first hundred would be charter members.
The names were coming in so fast, however, we weren’t
able to stop at a hundred and so we made it 200. We
couldn’t stop at 200, so we made it 300. We couldn’t stop
there and made it 400. We couldn’t stop there. We finally
slowed it down and stopped it at 430 …24
…
… I asked for and received a hundred dollars from every
charter member and they all paid it.25

Applicant testified that he considered Messrs. Van Loan and Violett, as well as
others, to be “founders” of the organization.26 Shortly after these initial steps,
Applicant sought and appointed a treasurer (Col. David Hatten), a president (Major
General William Gorton), and a secretary (Art Oken) for the organization. After
General Gorton became president he incorporated the organization under Utah law.27
That incorporated entity is Opposer in this proceeding. Applicant’s recollection is that

22 Id. at 13:8-14, 9 TTABVUE 24.
23 Id. at 20:19-25, 9 TTABVUE 31.
24 Id. at 23:6-13, 9 TTABVUE 34.
25 Id. at 24:3-5, 9 TTABVUE 35.
26 Id. at. 42:17-43:1, 9 TTABVUE 53-54.
27 Id. at 31:3-32:17, 9 TTABVUE 42-43.
Opposition No. 91223853
12

the organization was incorporated in February of 2006.28 It may have been
incorporated as early as February 2, 2006.29
Major General Donald Shepperd, Opposer’s current president, testified, “I was a
charter member, so I kind of watched the organization from the very beginning.”30 He
explained that a “charter member” was “[o]ne of the original members that started
the organization when it was announced.”31 Gen. Shepperd was one of the persons
that Applicant asked to become the president of the organization, but he declined at
that time.32 He testified that he perceived the marks at issue as marks of the
organization “[b]ecause it was there from the very beginning. We all signed up to it;
we joined the organization. They were there from day one, or very early in the process
…”33 He stated that, to his knowledge, Applicant never claimed to own the marks, or
asked for payment for them, or suggested that they were used by the organization
under license.34 After Opposer’s incorporation in 2006, it provided association
services continually through the time of trial, displaying the marks on its
membership applications,35 its publications,36 the minutes of its board of directors,37

28 Id. at 20:5-12, 9 TTABVUE 31.
29 Shepperd dep. 44:10-14, 6 TTABVUE 22.
30 Id. at 10:25-11:2, 6 TTABVUE 14.
31 Id. at 11:20-21, 6 TTABVUE 14.
32 Frazier dep. 32:9-11, 9 TTABVUE 43.
33 Shepperd dep. 20:21-23, 6 TTABVUE 16.
34 Id. at 14:6-7, 14, 6 TTABVUE 15.
35 Shepperd Ex. 24, 6 TTABVUE 180-181.
36 Shepperd Ex. 11, 6 TTABVUE 113-169.
37 Shepperd Ex. 6, 6 TTABVUE 82.
Opposition No. 91223853
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and materials used in connection with its annual reunions of members.38 Applicant
appears to have acknowledged that the marks have come to be associated with
Opposer: “They’ve recently removed this – the—the logo from the website. I don’t
think that is a step in the right direction. You go to our website and you expect to see
the logo and it’s not there.”39
Applicant contends that Opposer “[a]t best … had an oral trademark license …
from Col. Frazier …” under which it used the marks at issue.40 However, the speedy
trajectory of the association from an idea conceived by Applicant to an incorporated
entity providing services to hundreds of members, perhaps within the space of only
two months, is not consistent with Applicant’s implicit suggestion that he operates a
sole proprietorship that merely licenses the marks at issue to Opposer. If association
services of the type identified in the applications were provided prior to Opposer’s
incorporation (and that is not clear on this record), it appears that they would have
been the result of a group endeavor. From the earliest days, Applicant relied upon
the assistance (and finances) of other individuals interested in forming an
association, including individuals designated as president, treasurer and secretary of
the organization. The fact that the group so quickly undertook to create a corporation
indicates that the members of the group did not perceive themselves as investing
their money and efforts in a sole proprietorship of Applicant. Indeed, Applicant

38 Shepperd Exs.14-23, 6 TTABVUE 170-179.
39 Frazier dep. 118:21-24, 9 TTABVUE 129.
40 Applicant’s brief at 18, 14 TTABVUE 19.
Opposition No. 91223853
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asserted that his commercial activities under the mark, such as sales of marked
merchandise, were always done for the benefit of the organization and not for
himself.41 Once the corporate entity (Opposer) came into being, it proceeded to
provide association services of the type identified in the applications and to use the
marks in connection with them. Although Applicant would contend that he controlled
Opposer, that has not been established by the evidence of record. It appears,
moreover, that the association services that, according to Applicant, give rise to his
trademark rights are, in fact, services provided by Opposer. For example, there is no
evidence to indicate that when Applicant filed his use-based application to register
the word mark SUPER SABRE SOCIETY for association services,42 in 2014, there
were any such services being provided at the time under that mark other than those
offered by Opposer. Neither does the evidence show that Applicant controlled, at any
time, the nature and quality of the services Opposer provided.
It is a fundamental principle that “[a] trademark has no existence separate from
the good will of the product or service it symbolizes. Good will and its tangible symbol,
a trademark, are inseparable.” 1 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 2:15 (4th ed.). As the Supreme Court stated in a seminal case, “There
is no such thing as property in a trade-mark except as a right appurtenant to an
established business or trade in connection with which the mark is employed. … [I]t
is not the subject of property except in connection with an existing business.” United

41 Frazier dep. 85:21-25, 9 TTABVUE 96.
42 See Frazier Ex. 52 (Reg. No. 4766143), 10 TTABVUE 12. The mark is registered on the
Supplemental Register.
Opposition No. 91223853
15

Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918). Applicant’s intention to
depart from Opposer’s association and take the marks with him is essentially an
attempt to separate the marks from the good will that they symbolize.43 Applicant
has acknowledged that a potential member looking at Opposer’s website would
“expect to see the logo” there,44 in essence admitting that the marks symbolize
Opposer’s good will. But when the marks are separated from the business that they
symbolize, they are no longer trademarks, but merely graphic designs. As Applicant
himself phrases it: “The logos belonged to me. I designed them, I paid for them and
they’re mine … period.”45 Although Applicant may own rights in the graphic design
or the digital versions thereof, subject to any agreement with Opposer, it is well
settled that merely designing or inventing a symbol is not sufficient to give rise to
trademark rights. Invisible, Inc. v. National Broadcasting Co., 212 USPQ 576 (C.D.
Cal. 1980); see also 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 16:11
(4th ed.), and cases cited therein.
On this record, we are persuaded that Applicant does not own the involved marks.
Applicant’s conduct in the short period between his initial efforts to organize an
association of pilots and Opposer’s incorporation indicates his intention to create an
organization, separate from himself, to provide association services; and this
intention appears to have been shared by those other persons who cooperated with

43 See, e.g., Frazier dep. 39:4-22, 9 TTABVUE 50.
44 Frazier dep. 118:21-24, 9 TTABVUE 129.
45 Id. 65:5-19, 9 TTABVUE 76. See also id. at 64:14-18, 9 TTABVUE 75 (“Yes, I allowed the
use without restriction of my logos, but they were mine. I paid for them. I designed them.
They cannot be anyone else’s – period.”)
Opposition No. 91223853
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Applicant in forming the association and incorporating it. The evidence shows that
the incorporated association (i.e., Opposer) proceeded to provide its association
services to the member pilots under the marks; and there is no evidence to indicate
that Applicant controlled the incorporated association or the identified services. In
short, he did not control the nature and quality of the association services offered.
Although Applicant designed the marks and conceived the idea of an association of
pilots, the evidence does not show that he, individually, offered association services
at any time, much less under the involved marks.46
We have considered all of the evidence and testimony properly of record, including
all evidence not expressly discussed herein. For the reasons stated, we find that
Applicant is not the owner of the marks as contemplated by Section 1(a)(1) of the
Trademark Act. He therefore is not entitled under the statute to seek registration of
the marks, and his applications are void ab initio. We therefore SUSTAIN the
opposition on the ground that Applicant is not the owner of the marks.
In light of our finding that registration of the marks must be refused, we do not
reach Opposer’s other claims.

46 To the extent that Applicant’s dealing in merchandise bearing the marks might give rise
to trademark rights, they would nonetheless not give rise to service mark rights with respect
to association services.
Opposition No. 91223853
17

Decision:
The opposition is SUSTAINED on the ground that Applicant is not the owner of the
marks, and registration is refused as to Applications Serial Nos. 86346297 and
86347249.