United Social Sports, Inc.v.Major League Bocce, LLC

Trademark Trial and Appeal Board

Nov 6, 2018

No. 92060936 (T.T.A.B. Nov. 6, 2018)

Mailed: November 6, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

United Social Sports, Inc.
v.
Major League Bocce, LLC
_____

Cancellation No. 92060936

_____

Kevin J. McNeely of Browdy & Neimark PLLC,
for United Social Sports, Inc.

Benjamin N. Simler and Emily J. Cooper of Holland & Hart LLP,
for Major League Bocce, LLC.
_____

Before Cataldo, Bergsman, and Ritchie, Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Major League Bocce, LLC (“Respondent”) owns Registration No. 3956136
(the “136 Registration”) on the Supplemental Register for DC BOCCE
LEAGUE, in standard character format, for “Coordination of recreational
sporting opportunities for individuals who wish to participate in team league
THIS OPINION IS NOT A
PRECEDENT OF
THE TTAB
Cancellation No. 92060936
2
sports,” in International Class 35,1 disclaiming the exclusive right to use
“BOCCE LEAGUE” apart from the mark as shown, which registration was
issued on May 3, 2011. Respondent also owns Registration No.4221456 (the
“456 Registration”) on the Principal Register for the same mark and
identified services, issued on October 9, 2012. The 456 Registration also
disclaims the exclusive right to “BOCCE LEAGUE,” and claims acquired
distinctiveness in the mark as a whole under Section 2(f) of the Trademark
Act, 15 U.S.C. § 1052(f).2 As discussed herein, both registrations were filed
by another corporation and later assigned to Respondent.
United Social Sports, Inc. (“Petitioner”) has petitioned to cancel both the
136 Registration and the 456 Registration. In its amended petition for
cancellation, Petitioner asserts that Respondent is not the true owner of
either the 136 Registration or the 456 Registration. Petitioner further alleges
that the mark in the 456 Registration is at least merely descriptive and has
not acquired distinctiveness. Petitioner also alleges fraud by Respondent in
the assignment of the 136 Registration and the 456 Registration from the
assignor corporation as well as in the filing of the application that matured

1 Registration No. 3956136 issued from Serial No. 85010004, filed April 5, 2010 and
based on dates of first use and first use in commerce of August 1, 2005. Section 8
Affidavit accepted.
2 Registration No. 4221456 issued from Serial No. 85546786, filed February 18, 2012
and based on dates of first use and first use in commerce of August 1, 2005. Section
8 Affidavit accepted.
Cancellation No. 92060936
3
into the 456 Registration with regard to its claim of Section 2(f) acquired
distinctiveness.3
The answer to the amended petition denies the salient allegations, except,
as discussed below in “Standing,” regarding Respondent’s actions in sending
letters and take down requests with regard to Petitioner’s alleged
infringement of Respondent’s marks.4
Both parties filed briefs, and Petitioner filed a reply brief.
I. The Record and Evidentiary Issues
The record consists of the pleadings and the files of the involved
registrations. Additionally, the Board discussed the evidence of record, and
ruled on Respondent’s motion to strike in orders dated October 2, 2017 and
December 20, 2017.5 As a result, the following have been deemed to be of
record.
By Petitioner:

1. Petitioner’s Notice of reliance no. 2, exhibit I only, consisting of pages
from Respondent’s website.6

3 To the extent the petition alleged other grounds for cancellation, they were not
pursued, and are waived. See 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, 565 F.
App’x 900 (Fed. Cir. 2014) (mem.); Knight Textile Corp. v. Jones Inv. Co., 75 USPQ2d
1313, 1314 n.4 (TTAB 2005) (pleaded dilution ground not pursued on brief deemed
waived).
4 26 TTABVUE 4 (paragraphs 15, 17, 19).
5 52 TTABVUE and 57 TTABVUE. The motions were fully briefed. In addition to
filing its motions to strike, Respondent filed a motion to amend it application, which
we discuss, infra.
6 31 TTABVUE 31-37.
Cancellation No. 92060936
4
2. Petitioner’s Notice of reliance no. 4, consisting of government records
from the District of Columbia and corporate documents.7
3. Petitioner’s Notice of reliance no. 5, consisting of government records
from the District of Columbia, corporate documents, web evidence and
Respondent’s supplemental responses to Petitioner’s requests for admission.8
4. Petitioner’s Notice of reliance no. 8, consisting of web evidence in the
form of screenshots taken from the Internal Revenue Service (IRS) website.9
5. Petitioner’s Notice of reliance no. 9, consisting of Respondent’s
supplemental responses to Petitioner’s requests for admission; Respondent’s
supplemental responses to Petitioner’s interrogatories; and Respondent’s
supplemental responses to Petitioner’s requests for production of
documents.10
6. Testimonial deposition of Robert Kinsler, a representative of Petitioner,
and of Rachael Preston, the Managing Partner of Respondent, both dated
January 3, 2017.11 .
By Respondent:
1. Respondent’s Notice of reliance, consisting of printed publications and
web evidence, as well as Petitioner’s supplemental responses to
interrogatories, to demonstrate Respondent’s “acquired distinctiveness in its

7 33 TTABVUE.
8 34 TTABVUE.
9 37 TTABVUE.
10 38 TTABVUE.
Cancellation No. 92060936
5
registered ‘DC BOCCE LEAGUE’ marks, and of its exclusive and continuous
use of the mark in commerce.”12
2. Testimonial declaration of Sarah DeLucas, co-owner of Respondent,
dated June 23, 2017, with exhibits thereto.13
In its brief, Respondent made a number of evidentiary objections to the
testimony and documents submitted by Petitioner. Many of these were
already ruled on in the October 2, 2017 and December 20, 2017 orders by the
Board. Respondent does not convince us that we should revisit those
rulings.14 We further note that to the extent Respondent’s objections go to the
probative value of evidence, we accord the evidence of record such probative
value as it may have.
II. Background Findings and Respondent’s Motion to Amend
In order to clarify the issues in this case, we make the following
background findings. Petitioner organizes activities and social sports leagues,
which encompass various sports, including bocce.15 Petitioner operates under
the mark Capital Bocce in the market area around the District of Columbia.16

11 53 TTABVUE. The exhibits attached to the depositions were struck pursuant to
the Board’s December 20, 2017 order (57 TTABVUE 5). The exhibits are of record
only to the extent they were otherwise made of record.
12 41 TTABVUE.
13 47 TTABVUE, with confidential documents and testimony available at 46
TTABVUE.
14 Nor do we construe Respondent’s objections as an untimely request for
reconsideration of those orders. See 37 C.F.R. § 2.127(b).
15 53 TTABVUE 8.
16 53 TTABVUE 9.
Cancellation No. 92060936
6
Respondent also operates bocce leagues in the market area around the
District of Columbia.17 In this market, Respondent does business under the
name DC Bocce League, which is a trade name under which Respondent
operates.18 As noted by Respondent’s co-owner, Ms. Preston, previously,
“[t]here was a nonprofit corporation registered in the District of Columbia by
the name DC Bocce League.”19 The nonprofit entity DC Bocce League was
incorporated in 2004.20 Its corporate status was revoked by the District of
Columbia in 2007.21 However, as Ms. Preston states, the business “did
continue to operate without knowledge that the status was revoked during a
three-year period of 2008, 2009, and 2010.”22
In 2010, as Ms. Preston states, after the application that matured into the
136 Registration was filed, Respondent “took over operations for leagues
previously operated by DC Bocce League, a nonprofit corporation.”23 Ms.
Preston further notes that as part of the process of the nonprofit’s
dissolution, it “transferred all of its assets to [Respondent], including all
rights in the DC BOCCE LEAGUE mark and the then-pending application
for registration of the DC BOCCE LEAGUE mark.”24

17 53 TTABVUE 32.
18 53 TTABVUE 32. See also 47 TTABVUE 5, and Exhibit 9.
19 53 TTABUVE 34.
20 47 TTABVUE 2.
21 34 TTABVUE 26, 29-30.
22 53 TTABVUE 50-51.
23 53 TTABVUE 36.
24 47 TTABVUE 4, and Exhibit 7; Assignment Reel 4736/Frame 0372.
Cancellation No. 92060936
7
Respondent was created pursuant to a Certificate of Formation as a
Delaware LLC on April 28, 2010.25 Ms. DeLucas, a co-owner of Respondent,
was the Secretary of the nonprofit entity.26 Ms. Preston was also an officer of
the nonprofit before becoming the Managing Partner of Respondent.27
Respondent registered to do business with the District of Columbia, under
the trade name DC BOCCE LEAGUE, on November 5, 2010.28 Meanwhile,
the nonprofit filed articles of dissolution on November 4, 2010.29 The 456
Registration was later filed in February 2012, listing the applicant as “DC
Bocce League,” a nonprofit. The 456 Registration was, nevertheless, filed “on
[Respondent’s] behalf.”30 Thus, although an assignment was executed,
assigning the rights in the 2012 application from the nonprofit to the LLC,
this was done out of an abundance of caution and to “avoid any possible later
complications and confusion.”31
During the course of this proceeding, Respondent filed a motion to amend
the application that matured into the 456 Registration on the ground that it
inadvertently lists the wrong applicant.32 Respondent argues that while the
application was filed on behalf of Respondent, it incorrectly lists Respondent

25 47 TTABVUE 4, and Exhibit 6.
26 47 TTABVUE 2.
27 53 TTABVUE 39.
28 47 TTABVUE 5, and Exhibit 9.
29 47 TTABVUE 5, and Exhibit 8.
30 47 TTABVUE 6, and Exhibit 11.
31 47 TTABVUE 6. Assignment Reel 4740/Frame 0429.
32 39 TTABVUE.
Cancellation No. 92060936
8
by its trade name.33 The motion was opposed by Petitioner on the ground that
the filing was not a “mistake” but rather that the application was not filed by
“the proper person.”34 Petitioner further clarified that it did not consent to
the motion, citing Fed. R. Civ. P. 15(b) and the TBMP § 514,03.35
The Board denied Respondent’s motion to amend as untimely, but added
that the issue might be revisited with the Board’s final decision.36 We find
that the motion to amend was properly made in this proceeding. We note that
the TBMP section cited in the Board’s October 2, 2017 order, while discussing
the effect of unconsented motions, further states that an motion to amend,
“that is actually a correction” does not require the adverse party’s consent.
Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 514.03
(June 2018). The section goes on to state that “[o]rdinarily an amendment
seeking to correct a mistake addresses errors in how the applicant or
registrant is identified.” Id. Our precedent confirms this. See Great Seats,
Ltd., v. Great Seats, Inc.,, 84 USPQ2d 1235, 1240 (TTAB 2007). As the Board
there stated:
Where there exists as of the application filing date but a single
continuing commercial enterprise which is the owner of the
mark, and it is that entity which files the application, the
application is deemed to have been filed by the owner of the
mark even if the applicant, that single commercial enterprise, is
misidentified in the application as to its name or entity
designation (such as corporation, partnership, etc.).

33 49 TTABVUE 2.
34 49 TTABVUE 3, 5.
35 49 TTABVUE 4.
36 52 TTABVUE 12.
Cancellation No. 92060936
9
See also Accu Personnel Inc. v. Accustaff Inc., 38 uSPQ2d 1443 (TTAB 1996)
(applicant was proper “person” even though not in existence at time of filing,
since successor to prior corporations no longer in existence). Here too, there
was only one entity in existence at the time of the filing of the application
that matured into the 456 Registration. That entity is Respondent, Major
League Bocce, LLC. There is no dispute that DC Bocce League, nonprofit,
was no longer in existence as of the filing date in 2012. Respondent’s witness,
Ms. DeLucas, testified that as part of the process of its dissolution the
nonprofit “transferred all of its assets” to Respondent.37 She also testified
that the application that matured into the 456 Registration was filed “on
[Respondent’s] behalf.”38
We find that while the name and entity were listed incorrectly,
Respondent is the correct owner of the 456 Registration. Respondent’s motion
to amend is granted.
III. Standing
Standing is a threshold issue that must be proven in every inter partes
case. See Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982) (“The facts regarding standing . . . must be
affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely
because of the allegations in its [pleading].”). See also Empresa Cubana Del
Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014).

37 47 TTABVUE 4, and Exhibit 7.
38 47 TTABVUE 6.
Cancellation No. 92060936
10
To establish standing in a cancellation proceeding, a petitioner must show
both “a real interest in the proceedings as well as a ‘reasonable’ basis for his
belief of damage.” See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,
1025 (Fed. Cir. 1999).
Petitioner is a competitor of Respondent. The record establishes evidence
and testimony from both parties that Petitioner runs a bocce league in the
District of Columbia, as does Respondent.39 Furthermore, Respondent has
accused Petitioner of infringing its marks, and has taken action to stop such
alleged infringement.40 Thus, we find that Petitioner has established its
standing.
IV. Nonownership
Petitioner alleges that Respondent does not own either the 136
Registration or the 456 Registration.
Regarding the 136 Registration, Petitioner alleges that the application
that matured into the 136 Registration was filed by DC Bocce League,
nonprofit, when the company was no longer in existence, and was further
assigned to Respondent after the nonprofit ceased legal operations, and thus
the application is void ab initio. In particular, Petitioner points out that the
nonprofit was dissolved by the District of Columbia in 2007, while the

39 53 TTABVUE 8 (Kinsler); 47 TTABVUE 6 (DeLucas); 53 TTABVUE 32 (Preston).
40 53 TTABVUE 12 (Kinsler); 47 TTABVUE 6 (DeLucas), and Exhibit 11. 53
TTABVUE 63 (Preston). See also admissions in amended answer. 26 TTABVUE 4
(paragraphs 15, 17, 19).
Cancellation No. 92060936
11
application that matured into the 136 Registration was filed three years
later.
Respondent admits that although it continued to operate the nonprofit
through 2010, the corporate entity was dissolved by the District of Columbia
in 2007.41 However, Respondent’s witnesses deny knowledge of the
dissolution until after the nonprofit filed the application that matured into
the 136 application.42 There is dispute between the parties as to which law
governed the operations of the nonprofit at this time or what the effect of that
law would be on the corporate status and operations of the nonprofit.
Petitioner has the burden of proof, and has not shown by a preponderance of
the evidence that the nonprofit was not the proper applicant and owner of the
application. As to the assignment of this application, Respondent has
presented a reasonable timeline by which Respondent LLC was formed on
April 8, 2010; the nonprofit assigned all of its assets, including this
application to Respondent on May 11, 2010; and the nonprofit filed its
articles of dissolution on November 4, 2010, while Respondent continued
forward with operations using the mark in the 136 Registration.43
Regarding the 456 Registration, Petitioner alleges that the application
that matured into the 456 Registration was filed by DC Bocce League,
nonprofit, when the company was no longer in existence, and thus the

41 53 TTABVUE 47; 47 TTABVUE 2; 34 TTABVUE 26.
42 53 TTABVUE 50-51.
43 47 TTABVUE 4, Exhibit 6 and 7; Assignment Reel 004736/Frame 0372; 47
TTABVUE 5, and Exhibit 8.
Cancellation No. 92060936
12
application is void ab initio and cannot be registered in the name of
Respondent. As noted above, however, we have found that the application
was filed on Respondent’s behalf and should be corrected to list Respondent,
Major League Bocce, LLC, as the owner. Whether or not the nonprofit was
operating legally up to and until 2010 is irrelevant to this analysis of whether
Respondent, the LLC, was the correctly named applicant on the 2012 filing.
Thus, due to our grant of Respondent’s motion to amend the application,
Respondent is the owner of both the application and the ensuing 456
Registration, and Petitioner’s argument on this ground is moot.
Thus, we find for Respondent on the claim of nonownership as to both the
136 Registration and the 456 Registration, and the cancellation is denied as
to this ground for both registrations.
V. Mere Descriptiveness and Acquired Distinctiveness
We now address the alternative ground asserted by Petitioner that
Respondent’s mark DC BOCCE LEAGUE, is at least merely descriptive and
has not acquired distinctiveness. This argument only affects the mark in the
456 Registration, which is registered on the Principal Register under Section
2(f) of the Trademark Act, and not the 136 Registration, which is on the
Supplemental Register, and thus is not eligible for registration with a
showing of acquired distinctiveness. See Frito-Lay N. Am., Inc. v. Princeton
Vanguard, LLC, 124 USPQ2d 1184, 1204 n.63 (TTAB 2017). Since
Respondent registered the mark in the 456 Registration under Section 2(f),
Cancellation No. 92060936
13
the descriptiveness of the applied-for mark is conceded. See The Cold War
Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d
1626, 1629 (Fed. Cir. 2009) (“where an applicant seeks registration on the
basis of Section 2(f), the mark’s descriptiveness is a nonissue; an applicant’s
reliance on Section 2(f) during prosecution presumes that the mark is
descriptive.”). Respondent also disclaimed the descriptive term “bocce
league,” apart from the mark as shown.
Respondent admittedly offers a bocce league with related recreational
events in the District of Columbia, also known as DC, as one of its team
league sports. Co-owner Sarah DeLucas notes that Respondent and the prior
nonprofit have “operated bocce ball leagues under the DC BOCCE LEAGUE
brand and mark in and around Washington, D.C., Virginia, and Maryland.”44
Ms. Preston, Respondent’s Managing Partner, reiterated that Respondent “is
an operator of bocce ball leagues for social purposes,” including “in the D.C.
metro area,” where it uses this mark.45 This is analogous to the situation in
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750,
1767 (TTAB 2013) (finding Respondent’s geographically descriptive mark to
be highly descriptive and evidence submitted to establish acquired
distinctiveness insufficient). In that case, the respondent had registered the
mark ANNAPOLIS TOURS for guided tour services, disclaiming the word
“TOURS.” The Board found that with the generic term “TOURS,” which

44 47 TTABVUE 2, 5.
45 53 TTABVUE 32.
Cancellation No. 92060936
14
refers to the services provided, coupled with the geographically descriptive
term “ANNAPOLIS,” the mark as a whole was highly descriptive. Id. at 1765.
Here, as well, we find that Respondent’s mark is highly descriptive of the
identified services.
The Court in Cold War Museum clarified the burdens in a cancellation
proceeding where the petitioner alleges that a mark is at least merely
descriptive without having acquired distinctiveness:
A mark on the Principal Register is presumed to be valid. 15
U.S.C. § 1057(b). Due to this presumption of validity, the burden
of persuasion in a cancellation proceeding rests on the party
seeking to cancel the registration. A party seeking to cancel a
registration must overcome the registration’s presumption of
validity by a preponderance of the evidence.
Cold War Museum, 92 USPQ2d at 1628. [cites omitted].

The Court went on to say that to rebut the presumption in a cancellation
proceeding that a mark registered under Section 2(f) has become distinctive,
the petitioner “must produce sufficient evidence for the Board to conclude, in
view of the entire record in the cancellation proceeding, that the party has
rebutted the mark’s presumption of acquired distinctiveness” and must do so
“by a preponderance of the evidence.” Id. [cites omitted].
Thus it is incumbent on Petitioner to make a prima facie showing at trial
that Respondent’s mark has not acquired distinctiveness. Id., at 1630. In that
case, the Court found that petitioner “failed to present any evidence or
argument of lack of distinctiveness,” and thus had not met its burden. Here,
Petitioner points to a 2010 IRS filing by the nonprofit which mentions
Cancellation No. 92060936
15
significantly lower revenue for the year 2010 than that referred to by
Respondent in its 2(f) filings for that year.46 In this regard, Petitioner argues
that there is an issue as to whether Respondent has “substantially exclusive
and continuous use” of its mark for a period of five years or more.47 However,
Respondent has explained the disparity in the numbers, stating that the
disparity is because the IRS filing refers only to the nonprofit, while the
documents submitted to show 2(f) acquired distinctiveness by Ms. DeLucas
(and with Respondent’s application filing) refer to combined revenue for both
the nonprofit and the LLC which operated separately at different points in
2010. Respondent clarifies that because of the assignment of the 136
Registration during that year, both revenues were added together for
purposes of the 2(f) filing.48
We find that Petitioner has failed to establish a prima facie case that the
mark in the 456 Registration has not acquired distinctiveness which would
render the Section 2(f) registration invalid. Since the burden is on Petitioner
to establish its case, it is unnecessary for us to consider the 2(f) evidence
submitted by Respondent to refute the claim. The cancellation is denied on
the ground of lack of acquired distinctiveness as to the 456 Registration.
VI. Fraud
Finally, we consider Petitioner’s claim of fraud. Petitioner alleges fraud by
Respondent in the assignment of the 136 Registration and the 456

46 58 TTABVUE 26; 37 TTABVUE 5; 47 TTABVUE 49.
47 58 TTABVUE 21.
Cancellation No. 92060936
16
Registration from the assignor corporation as well as in the filing of the
application that matured into the 456 Registration with regard to its claim of
Section 2(f) acquired distinctiveness.
The Court in In re Bose Corp., 476 F.3d 1331, 91 USPQ2d 1938, 1939
(Fed. Cir. 2009), set out the relevant standard for proving fraud:
“Fraud in procuring a trademark registration or renewal occurs
when an applicant knowingly makes false, material
representations of fact in connection with his application.”
Torres v. Cantine Torresella S.r.l., 808 F.2d 46, 48 [1 USPQ2d
1483] (Fed. Cir. 1986). A party seeking cancellation of a
trademark registration for fraudulent procurement bears a
heavy burden of proof. W.D. Byron & Sons, Inc. v. Stein Bros.
Mfg. Co., 377 F.2d 1001, 1004 [153 USPQ 749] (CCPA 1967).
Indeed, “the very nature of the charge of fraud requires that it
be proven ‘to the hilt’ with clear and convincing evidence. There
is no room for speculation, inference or surmise and, obviously,
any doubt must be resolved against the charging party.” Smith
Int'l, Inc. v. Olin Corp., 209 USPQ 1033, 1044 (TTAB 1981).

Regarding the assignments of the 136 and 456 Registrations, the Board
noted in its October 2, 2017 order that Bose requires that fraud be found only
when there are “knowingly false, material, representations” with regard to
the filing or maintaining of an application or registration.49 The order further
notes that an assignment of ownership, which is “ministerial,” does not fit in
this category. Id. Regarding the filing of the 456 Registration, we have found,
as discussed above, that the application that matured into the 456
Registration was merely filed listing an incorrect name and entity type, but
was filed by or on behalf of the proper person, Respondent.

48 59 TTABVUE 28; 47 TTABVUE 5, 9.
Cancellation No. 92060936
17
With regard to the allegation of fraud regarding the 2(f) filing, Petitioner
again points to a 2010 IRS filing by the nonprofit which mentions different
numbers for the year 2010 than that referred to by Respondent for that
year.50 However, as noted above, Respondent has explained the disparity in
the numbers, stating that the disparity is because the IRS filing refers only to
the nonprofit, while the documents submitted to show 2(f) acquired
distinctiveness by Ms. DeLucas (and with Respondent’s application filing)
refer to combined revenue for both the nonprofit and the LLC which operated
separately at different points in 2010. Respondent clarifies that because of
the assignment of the 136 Registration during that year, both revenues were
added together for purposes of the 2(f) filing.51 There is no evidence that
these statements are false, nor is there evidence of intent to deceive. See
Alcatraz Media, 107 USPQ2d at 1769 (finding insufficient evidence of fraud
in 2(f) filing).
Petitioner has not proven “to the hilt” with “clear and convincing
evidence” that Respondent made false representations, including with regard
to its allegations of Section 2(f) acquired distinctiveness, nor that any such
representations were made knowingly and with intent to deceive. Thus, the
the cancellation is denied on this ground of fraud as to both the 136
Registration and the 456 Registration.

49 52 TTABVUE11, n.15.
50 58 TTABVUE 26; 37 TTABVUE 5; 47 TTABVUE 49.
51 59 TTABVUE 28; 47 TTABVUE 5, 9.
Cancellation No. 92060936
18
VII. Conclusion
We have considered Petitioner’s pleaded claims that (1) Respondent is not
the true owner of either the 136 Registration or the 456 Registration; (2) the
mark in the 456 Registration is at least merely descriptive and has not
acquired distinctiveness; and (3) Respondent committed fraud on the PTO in
the assignment of the 136 Registration and the 456 Registration from the
assignor corporation as well as in the filing of the application that matured
into the 456 Registration with regard to its claim of Section 2(f) acquired
distinctiveness. We have denied the claim of nonownership as to both
registrations. We have also denied the claim of fraud, on its various bases, for
both registrations. Thus, the 136 Registration shall remain on the
Supplemental Register.
Regarding the claim that Respondent’s mark is highly descriptive and has
not acquired distinctiveness, we have found that the mark in the 456
Registration is highly descriptive in relation to the identified goods. However,
Petitioner, who has the burden of proof in this cancellation proceeding, has
failed to establish a prima facie case that the mark has not acquired
distinctiveness as to those goods. Therefore, we deny the cancellation of the
456 Registration on that ground as well.

DECISION: The cancellation is denied as to both Registration No.
4221456 and to Registration No. 3956136 on all pleaded grounds.