Dogtopia Ltd.v.Happy Tails Dog Spa, LLC

Trademark Trial and Appeal Board

Jun 4, 2012

No. 92050834 (T.T.A.B. Jun. 4, 2012)

Baxley Mailed: June 4, 2012 Concurrent Use No. 94002438 Happy Tails Dog Spa, LLC ("Happy") v. Dogtopia LLC ("Oklahoma") v. Dog-topia ("Colorado") v. Dogtopia Ltd. ("Ohio") Cancellation No. 92050834 Dogtopia Ltd. v. Happy Tails Dog Spa, LLC Before Bucher, Kuhlke, and Taylor, Administrative Trademark Judges. By the Board: On April 16, 2009, Dogtopia Ltd. ("Ohio") commenced the above-captioned cancellation proceeding by filing a petition to cancel Happy Tails Dog Spa, LLC's ("Happy") geographically unrestricted registration for the mark DOGTOPIA in standard character form for "dog and pet daycare UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 Concurrent Use No. 94002438; Cancellation No. 92050834 2 and boarding" in International Class 431 on the ground of likelihood of confusion with its previously used but unregistered marks DOGTOPIA and DOGTOPIA DAYCARE FOR DOGS & design as shown at right, for "dog day care, dog boarding, dog washing, and dog training services" under Trademark Act Section 2(d), 15 U.S.C. Section 1052(d). Happy, in its amended answer, denied the salient allegations of the petition to cancel and set forth affirmative defenses that (1) Ohio is not the prior user of the DOGTOPIA mark; and (2) the petition is barred by the doctrine of unclean hands because Ohio "adopted its DOGTOPIA mark with the bad faith intent to trade on the goodwill of [Happy's] mark."2 During the 1 Registration No. 3166675, issued October 31, 2006, based on an application filed on June 16, 2005, and alleging May 1, 2005, as the date of first use anywhere and July 20, 2006, as the date of first use in commerce. 2 The amended answer in the cancellation proceeding was filed on July 27, 2009, in accordance with the Board's July 8, 2009, report on the parties' July 7, 2009, discovery conference. In a September 22, 2010, report on the parties' September 17, 2010, discovery conference in the concurrent use proceeding, the Board reviewed the pleadings in these consolidated proceedings and sua sponte struck from Happy's amended answer: (1) the second affirmative defense that Ohio lacks standing because "it is not the owner of a valid federal DOGTOPIA trademark," (2) the third affirmative defense that Ohio lacks standing because "it does not use the DOGTOPIA mark in commerce," (3) the sixth affirmative defense that Ohio "has not pleaded law or facts that justify the cancellation of" Happy's registration, and (4) the seventh affirmative defense that Ohio "has failed to state a claim upon which relief can be granted." As Happy's first affirmative defense, Happy "repeats, realleges and incorporates herein each and every allegation of the preceding paragraphs as if fully set forth herein." Although this paragraph is not a true affirmative defense, striking it is unwarranted. See Fed. R. Civ. P. 12(f); TBMP Section 506.01. Concurrent Use No. 94002438; Cancellation No. 92050834 3 parties' July 7, 2009, discovery conference in the cancellation proceeding, as memorialized in the Board's July 8, 2009, order, the parties stipulated that the marks at issue are similar, that the services are related under Section 2(d), and that the sole issue in the cancellation proceeding is priority. See also the Board's April 25, 2011, order. During the pendency of the cancellation proceeding, Happy, on May 26, 2009, filed concurrent use application Serial No. 77744852 to register the mark DOGTOPIA and design in the following form, , for "pet boarding services; pet day care services" in International Class 43.3 In that application, Happy "claims the exclusive right to use the mark in the area comprising the entire United States with the exception of the entire State of Oklahoma, the city limits of Denver, Colorado and the entirety of Cuyahoga County, Ohio" and names Ohio as one of three excepted concurrent users. Following the November 28, 2009, institution of Concurrent Use No. 94002438, the Board consolidated the above-captioned proceedings in a January 8, 2010, order. Happy has reached settlements with Colorado and Oklahoma, the named excepted concurrent users other than Ohio. 3 Ohio has not filed an application to register any mark containing the word DOGTOPIA. Concurrent Use No. 94002438; Cancellation No. 92050834 4 This case now comes up for consideration of: (1) Happy's motion (filed July 7, 2011) for summary judgment in the concurrent use proceeding; and (2) Ohio's cross-motion (filed August 30, 2011) for summary judgment on its Section 2(d) claim in the cancellation proceeding. The cross- motions have been fully briefed.4 Pursuant to the Board's August 19, 2011, order, Ohio was allowed until August 26, 2011, to file its response to Happy's motion for summary judgment. The combined brief in response and cross-motion for summary judgment that Ohio filed on August 30, 2011 ("the August 30, 2011, submission") does not include a separate certificate of mailing. However, the cover letter of the August 30, 2011, submission is captioned as "PROOF OF SENDING" and indicates that Ohio's attorney sent such submission to the Board by certified mail on August 26, 2011, after Ohio's attorney experienced difficulties in filing the submission electronically.5 See 4 Happy filed in separate submissions a reply brief in support of its motion for summary judgment and a brief in response to the cross-motion for summary judgment. The Board prefers that a movant for summary judgment file a combined reply brief in support of its motion for summary judgment and brief in response to the cross-motion for summary judgment. Such combined brief should not exceed twenty-five pages and should be filed by the due date for a brief in response to the cross-motion for summary judgment. See Trademark Rules 2.119(c) and 2.127(e)(1). 5 The website for the Board's ESTTA electronic filing system (ESTTA) (http://estta.uspto.gov/) states as follows: "Because unexpected problems can occur, you should keep filing deadlines in mind and allow plenty of time to resolve any issue which might arise. ... If ESTTA filing is not possible prior to a deadline for any reason, parties should submit their filings in paper." Concurrent Use No. 94002438; Cancellation No. 92050834 5 Trademark Rule 2.197; TBMP Section 110 (3d ed. 2011). Accordingly, we will treat the cover letter as a certificate of mailing and will therefore treat the August 30, 2011, submission as timely filed. The certificate of service of Ohio's August 30, 2011, submission indicates that such submission was served by mail on August 26, 2011. Therefore, Happy was allowed until September 15, 2011, to file a reply brief in support of its motion for summary judgment. See Trademark Rules 2.119(c) and 2.127(e)(1). Accordingly, the reply brief that Happy filed on September 19, 2011, is untimely.6 In addition, Happy's reply brief in support of its motion for summary judgment in the concurrent use proceeding is eleven pages in its entirety and therefore exceeds the ten-page limit for reply briefs in support of motions. See Trademark Rule 2.127(a); Saint-Gobain Corp. v. Minnesota Mining and Mfg. Co., 66 USPQ2d 1220, 1222 (TTAB 2003); TBMP Section 502.02(b) (3d ed. 2011). The Board, in its discretion, may consider evidence submitted with a timely filed, but overlength brief. See Mattel Inc. v. Brainy Baby Co., 101 USPQ2d 1140, 1141-42 (TTAB 2011). However, in view of both the untimeliness and the excessive length of Happy's 6 Moreover, a cursory review of the reply brief indicates that Happy has made no showing that its failure to timely file the reply brief was the result of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(A); TBMP Section 509.01(b). Concurrent Use No. 94002438; Cancellation No. 92050834 6 reply brief, the Board will not consider that reply brief and will not consider as evidence the attached exhibit, which comprises a copy of Happy’s requests for admission served on September 17, 2010.7 In support of its motion for summary judgment as applicant in the above-captioned concurrent use proceeding, Happy contends that it has presumptive nationwide rights by way of its registration; that it is doing business in twenty-three locations in eleven states; that, in view of the Board's April 25, 2011, order, Ohio has admitted by way of its failure to respond to requests for admissions that it does not offer goods or services under the DOGTOPIA mark (1) outside of Cleveland Heights, Ohio, (2) outside of Cuyahoga County, Ohio, and (3) outside of the State of Ohio; and has further admitted that (4) it does not offer goods or services outside of the State of Ohio, (5) that it did not offer goods or services outside of the State of Ohio prior to May 1, 2005, and (6) that it did not offer goods or services outside of the State of Ohio prior to July 20, 2006. Happy contends in addition that it and Ohio are both entitled to use the DOGTOPIA mark; that "[Happy] does not dispute that [Ohio] began using its DOGTOPIA mark in 7 A cursory review of the September 17, 2010, requests for admission indicates that they are identical to requests for admission that Happy served on July 28, 2010, except for the dates set forth in the signature blocks. Concurrent Use No. 94002438; Cancellation No. 92050834 7 commerce, in Cleveland Heights, Ohio, prior to [Happy's] use giving [Ohio] an entitlement to use the mark in commerce, in Cleveland Heights, Ohio"; that Happy "does not use and, in fact, has explicitly agreed not to use, its DOGTOPIA mark in Cuyahoga County, Ohio"; that, even without reliance upon the admitted requests for admissions, Ohio cannot establish use of the DOGTOPIA mark outside of Cleveland Heights, Ohio. Happy's brief in support of motion for summary judgment at 10. Accordingly, Happy contends that it "is entitled to summary judgment on the issue of [Ohio]’s concurrent use being limited to the Metropolitan area of Cleveland Heights, Ohio, as there is no genuine issue of material fact that [Ohio] has not, and cannot demonstrate actual use of its DOGTOPIA mark beyond this limited geographic area." Happy brief in support at 6-7. As evidentiary support for its motion, Happy has submitted: (1) a copy of the twelve requests for admission that it served upon Ohio on July 28, 2010 ("the July 28, 2010, requests for admission"), to which Ohio did not respond; (2) copies of Certificates of Business Occupancy that were issued to Ohio for the 2624 Noble Road, Cleveland Heights, Ohio address by the City of Cleveland Heights, Ohio Building Department for the years 2004 through 2011; (3) a map showing the area within a five-radius of Ohio's single location in Cleveland Heights, Ohio; (4) a declaration of Concurrent Use No. 94002438; Cancellation No. 92050834 8 Happy's attorney attesting that all exhibits to its motion are original documents or true and accurate copies thereof; and (5) a declaration of Happy's owner, Amy Nichols, attesting that Happy operates twenty-three dog daycare and spa centers in eleven states.8 In opposition to Happy's motion and in support of its cross-motion for summary judgment, Ohio contends that, with regard to Happy's motion, there are genuine disputes as to whether Happy is a good faith remote junior user, as to whether there is a likelihood of confusion in the marketplace, and as to the territorial restriction that Happy proposes. In addition, Ohio contends that the Board determined that the July 28, 2010, requests for admission that Happy asserts are deemed admitted were improperly served; that the July 28, 2010, requests for admission were replaced by four requests for admission that Happy served on September 29, 2010 ("the September 29, 2010, requests for admission"), which the Board, in the April 25, 2011, order, determined were admitted as a result of Ohio's failure to respond thereto; that Ohio's customers live in "various areas in Ohio as well as other states, such as Pennsylvania," Virginia, Maryland, Illinois, Iowa, Florida, and New York; that Happy only selected, and commenced use 8 Those states are California, Colorado, Delaware, Indiana, Maryland, Nebraska, New Jersey, North Carolina, Tennessee, Texas, and Virginia. Concurrent Use No. 94002438; Cancellation No. 92050834 9 of, the DOGTOPIA mark after Ohio had begun such use; that there has been actual confusion arising from Happy's and Ohio's use of the DOGTOPIA mark; that Happy, in its concurrent use application and again in its motion for summary judgment, has admitted that it is not entitled to a geographically unrestricted registration; that, even with the geographic separation of Happy's and Ohio's physical locations, there is a likelihood of confusion arising from Happy's use of the domain name dogtopia.com and Ohio's use of the domain name dogtopia.net; that, in view of the "widespread rollout" of Happy's franchising network of dog daycare facilities under the DOGTOPIA mark, Ohio is entitled to a broader territory than Cuyahoga County, Ohio; that because Ohio has commuter customers that come from outside of Cuyahoga County, allowing Happy's registration to cover the area immediately outside of Cuyahoga County, would cause consumer confusion; and that, given Ohio's prior use of the same mark in connection with the same services, Happy's geographically unrestricted mark should be cancelled. Accordingly, Ohio asks that the Board deny Happy's motion for summary judgment and grant its cross-motion for summary judgment seeking cancellation of Happy's geographically unrestricted registration. As evidentiary support, Ohio submitted: (1) a declaration of Ohio's founder and owner, Connie Karlowicz, Concurrent Use No. 94002438; Cancellation No. 92050834 10 averring that: (a) when she conceived the DOGTOPIA name and mark in late 2003, she searched online and did not see any others using that name or mark; (b) she applied for an Ohio trade name registration on January 9, 2004, and has used the DOGTOPIA mark since she began accepting dogs for daycare on August 1, 2004; (c) she has customers from cities in Ohio outside of Cuyahoga County and from outside the State of Ohio; and (d) there has been actual confusion arising from the parties' use of the DOGTOPIA marks; and (2) a declaration of Gloria Raathaas, an administrative assistant for Ohio's attorneys, averring to an Internet search that she conducted. In opposition to the cross-motion for summary judgment, Happy asserts that the cross-motion should be denied because the ground on which Ohio seeks entry of summary judgment is unclear from Ohio's August 30, 2011, submission; that Ohio relies on statements from witnesses that it did not identify in initial disclosures regarding the nature and extent of actual confusion in support of the cross-motion for summary judgment; that Happy is a good faith remote junior user; and that Colorado used the DOG-TOPIA mark prior to Ohio's use of the DOGTOPIA mark. Accordingly, Happy asks that the Board deny the cross-motion for summary judgment. Happy did not submit any evidence with its brief in response to the cross- motion. Concurrent Use No. 94002438; Cancellation No. 92050834 11 In its reply brief in support of the cross-motion for summary judgment, Ohio asserts that Happy ignores that Ohio's prior rights in the DOGTOPIA mark provide the basis for cancellation of Happy's registration. In the Board's September 3, 2010, order, the Board determined that the July 28, 2010, requests for admission and other concurrently served discovery requests were improperly served because Happy had not yet served initial disclosures in connection with the concurrent use proceeding.9 The record herein indicates that, prior to serving initial disclosures in the concurrent use proceeding, Happy, on September 17, 2010, served a second set of requests for admission that were identical in content to the July 28, 2010, requests for admission; and that, on September 29, 2010, Happy served additional initial disclosures and discovery requests, including a third set of requests for admission ("the September 29, 2010, requests for admission"). All three sets of requests for admission that Happy served are captioned as "first set(s)" of requests for admissions. In addition, Happy included only the September 29, 2010, requests for admission as exhibits to its November 22, 2010, cross-motion to compel, and the 9 In that order, the Board allowed Ohio until thirty-five days from the date of service of Happy's initial disclosures in the concurrent use proceeding to serve responses to the July 28, 2010, requests for admission and Happy's other concurrently served discovery requests. Concurrent Use No. 94002438; Cancellation No. 92050834 12 Board, in its April 25, 2011 decision on the parties' cross- motions to compel, noted only that the September 29, 2010, requests for admission were admitted by operation of applicable rules. Under the circumstances, the Board deems the July 28, 2010, and September 17, 2010, requests for admission to have been effectively withdrawn and replaced through Happy's service of the September 29, 2010, requests for admission. Accordingly, we find that the July 28, 2010, requests for admission are not deemed admitted. We hasten to add, however, that treating the July 28, 2010, requests for admission as admitted would not have changed this decision. For the Board to grant summary judgment, the movant must establish that there is no genuine dispute as to its standing and as to the ground on which the movant seeks entry of summary judgment. See Fed. R. Civ. P. 56(a); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Summary judgment is an appropriate method of disposing of a case in which there is no genuine dispute as to any material fact, thus leaving the case to be resolved as a matter of law. See Fed. R. Civ. P. 56(c). A dispute as to a material fact is genuine only if a reasonable fact finder viewing the entire record could resolve the dispute in favor of the nonmoving party. See Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992). In deciding a motion Concurrent Use No. 94002438; Cancellation No. 92050834 13 for summary judgment, the Board must view the evidence in the light most favorable to the nonmovant, and must draw all reasonable inferences from underlying facts in favor of the nonmovant. Id. The Board may not resolve disputes as to material facts in deciding a motion for summary judgment; it may only ascertain whether such disputes are present. See Lloyd's Food Products Inc. v. Eli's Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); Opryland USA Inc. v. Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992); Olde Tyme Foods Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir. 1992). We turn first to Ohio's cross-motion for summary judgment. Contrary to Happy's assertion, Ohio clearly seeks entry of summary judgment on its prior rights in the DOGTOPIA mark in the cancellation proceeding.10 See August 30, 2011, submission at 2 and 12. Because the parties stipulated, during the July 7, 2009, discovery conference in the cancellation proceeding, "that the marks in question are similar and the services are related under Section 2(d) of the Trademark Act and agreed that the sole issue in the current proceeding is that of priority of use," Ohio need 10 Nonetheless, throughout the August 30, 2011, submission, Ohio argues the merits of the above-captioned proceedings, rather than pointing out specific genuine disputes of material fact that remain in the concurrent use proceeding and the absence of genuine disputes as to any material facts in the cancellation proceeding. Concurrent Use No. 94002438; Cancellation No. 92050834 14 only establish priority and standing to prevail on its Section 2(d) claim herein. Cancellation No. 92050834, July 8, 2009, order at 3. See April 25, 2011 order at 2. See also Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 28-29 (CCPA 1976) (similarity of marks and relatedness of goods and services at issue are key considerations in determining likelihood of confusion). To obtain summary judgment in its favor on the Section 2(d) claim in the cancellation proceeding, Ohio must establish that there is no genuine dispute that (1) it has standing to maintain this proceeding; (2) that it is the prior user of its pleaded mark; and (3) that contemporaneous use of the parties' respective marks on their respective goods would be likely to cause confusion, mistake or to deceive consumers. See Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001). Regarding whether or not contemporaneous use of the parties' respective marks in connection with their respective services would be likely to cause confusion, mistake or to deceive consumers, the parties, as noted supra, stipulated that the marks in question are similar and that the services are related under Section 2(d) of the Trademark Act. Moreover, the evidence of record indicates that Happy and Ohio use the same word mark, DOGTOPIA, on the same services, i.e., dog daycare services. In view of the Concurrent Use No. 94002438; Cancellation No. 92050834 15 foregoing, there is no genuine dispute that contemporaneous use of the parties' respective marks in connection with their respective services would be likely to cause confusion, mistake or to deceive consumers.11 See also Federated Foods, Inc. v. Fort Howard Paper Co., 192 USPQ at 28-29. Further, there is no genuine dispute that Ohio has standing to seek cancellation of Happy's geographically unrestricted registration and that Ohio is the prior user of the DOGTOPIA mark for dog daycare services. Ohio's standing is established by the averment in the Karlowicz declaration that was submitted as an exhibit to its August 30, 2011 submission that Ms. Karlowicz, Ohio's owner and founder, has used the DOGTOPIA mark for dog daycare services since August 1, 2004. See Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982); Panda Travel Inc. v. Resort Option Enters. Inc., 94 USPQ2d 1789, 1793 (TTAB 2009). Regarding Ohio's assertion of priority, Happy, in its motion for summary judgment, states that it "does not dispute that [Ohio] began using its DOGTOPIA mark in commerce, in Cleveland Heights, Ohio, prior to [Happy's] use giving it an entitlement to use the mark in commerce, in 11 In any event, the Karlowicz declaration indicates that Ohio uses the same word mark as Happy on overlapping services, namely, dog daycare. Concurrent Use No. 94002438; Cancellation No. 92050834 16 Cleveland Heights, Ohio." Moreover, the statements in the Karlowicz declaration regarding her use of the DOGTOPIA mark since she began accepting dogs for daycare on August 1, 2004, prior to any date that Happy relied upon in support of its involved registration, are sufficient to establish that there is no genuine dispute that Ohio is the prior user of the mark among the parties in the cancellation proceeding.12 Even if we assume that Ohio's use of its mark has been purely intrastate in nature, Ohio can establish the priority element of its Section 2(d) claim in the cancellation proceeding entirely through prior intrastate use.13 See Panda Travel Inc. v. Resort Option Enter. Inc., 94 USPQ2d at 1794-95. Accordingly, there is no genuine dispute that Ohio is the prior user of the DOGTOPIA mark among the parties to the cancellation proceeding. 12 Although the above-captioned proceedings have been consolidated, each proceeding retains its separate chanacter. See TBMP Section 511. Thus, even if we assume, as Happy argues, that Colorado's use of its DOG-TOPIA mark precedes Ohio's use of the DOGTOPIA mark, Colorado's use of the DOG-TOPIA mark has no bearing upon the cancellation proceeding because Colorado is not a party to that proceeding. To prevail on its Section 2(d) claim in the cancellation proceeding, Ohio need not be the first user of such mark; Ohio need only establish use that precedes Happy's. See BAF Industries v. Pro-Specialties, Inc., 206 USPQ 166 (TTAB 1980). 13 Thus, contrary to Happy's apparent belief, whether or not Ohio's use of its mark is sufficient to obtain a Federal registration has no bearing upon whether that use is sufficient to establish priority as a plaintiff on a Section 2(d) claim. Concurrent Use No. 94002438; Cancellation No. 92050834 17 Based on the foregoing, we find that there is no genuine dispute as to any material fact regarding the Section 2(d) claim in the cancellation proceeding and that Ohio is entitled to entry of judgment on that claim as a matter of law. Accordingly, Ohio's cross-motion for summary judgment is granted. Registration No. 3166675 shall be cancelled in due course.14 Turning to Happy's motion for summary judgment in the concurrent use proceeding, Happy, as the plaintiff in the concurrent use proceeding and movant for summary judgment, has the burden of demonstrating that there is no genuine dispute that it is entitled to the concurrent use registration it seeks and that is entitled to entry of judgment in the concurrent use proceeding as a matter of law. See Fed. R. Civ. P. 56(a); Trademark Rule 2.99(e); Georgia-Southern Oil Inc. v. Richardson, 16 USPQ2d 1723, 1725-26 (TTAB 1990); Ole’ Taco Inc. v. Tacos Ole, Inc., 221 USPQ 912, 915 (TTAB 1984). "As a general rule, a prior user of a mark is entitled to a registration covering the entire United States limited only to the extent that the subsequent 14 We hasten to add, however, that, had we not entered summary judgment in the cancellation proceeding, Happy's geographically unrestricted registration would have been added to the concurrent use proceeding in view of the similarity of the registered mark and the services recited in that registrations to the marks and the services of the parties that are involved herein. See TBMP Section 1104. As such, that registration would have been subject to the same geographic restrictions as Happy's involved concurrent use application. Concurrent Use No. 94002438; Cancellation No. 92050834 18 user can establish that no likelihood of confusion exists and that it has concurrent rights in its actual area of use, plus its area of natural expansion."15 Pinocchio's Pizza v. Sandra Inc., 11 USPQ2d 1227, 1228 (TTAB 1989). We note initially that, in the concurrent use application, Happy recognizes Ohio's rights as an excepted concurrent user in "the entirety of Cuyahoga County, Ohio," but in portions of its brief in support of its motion for summary judgment, seeks entry of summary judgment limiting Ohio's rights as an excepted concurrent user to "the metropolitan area of Cleveland Heights, Ohio"16 without having sought to amend its application to recognize Ohio's rights only in Cleveland Heights, Ohio.17 See, e.g., Happy's motion for summary judgment at 6-7. Happy cannot seek, by its motion, seek relief beyond that which it seeks in its involved concurrent use application. Cf. TBMP 15 Actual use in a territory is not necessary to establish rights in that territory; the extent of the area to be granted a concurrent use applicant depends on a number of factors, including the applicant's previous business activity, previous expansion (or lack thereof) and presently planned expansion. See Georgia-Southern Oil Inc. v. Richardson, 16 USPQ2d at 1725. 16 The wording "the metropolitan area of Cleveland Heights, Ohio" is unacceptably indefinite because it does not set forth a specific geographic boundary. 17 Although Happy asserts that Oklahoma has ceased use of the DOGTOPIA mark, Happy has not sought to delete such use from its concurrent use application. Deletion of Oklahoma from the involved application would expand Happy's territorial rights in that application and would thus require republication of that application. Concurrent Use No. 94002438; Cancellation No. 92050834 19 Sections 314 and 528.07(a) (a party cannot obtain judgment on an unpleaded issue). Happy's objections to Ohio's evidence in opposition to Happy's motion for summary judgment based on Ohio's alleged failure to disclose witnesses and documents regarding instances of consumer confusion in initial disclosures and discovery are overruled. Ohio relied on declarations of two witnesses in the August 30, 2011, submission: (1) Ms. Karlowicz, Ohio's owner and founder, and (2) Ms. Raathaas, an employee of Ohio's attorneys. A copy of Ohio's initial disclosures, which Happy submitted with its November 22, 2010, cross-motion to compel, indicates that Ohio identified Ms. Karlowicz therein as a person likely to have discoverable information, in compliance with Fed. R. Civ. P. 26(a)(1)(A)(i). Because Ms. Raathaas is merely averring to an Internet search conducted in preparation for this case, Ohio need not have named her in initial disclosures. Moreover, Ohio identified "[e]vidence of actual confusion" as a category of documents that it may use in support of its claims or defenses herein, in compliance with Fed. R. Civ. P. 26(a)(1)(A)(ii). Further, Happy has not indicated where during discovery it requested information and documents regarding consumer confusion, and a review of the discovery requests that Happy submitted as exhibits to its cross- motion to compel indicates that Happy did not expressly seek Concurrent Use No. 94002438; Cancellation No. 92050834 20 discovery regarding instances of actual confusion arising from the parties' use of the same word mark on identical services. However, we have not considered any statements in the Karlowicz declaration that constitute hearsay. See Fed. R. Evid. 801 et seq. To the extent that Happy, by its motion for summary judgment, seeks a concurrent use registration in which Happy recognizes Ohio's rights as an excepted concurrent user in "the entirety of Cuyahoga County, Ohio," we find, after reviewing the parties' arguments and evidence, that there are genuine disputes as to material facts that preclude entry of summary judgment for Happy in the concurrent use proceeding. Even if we assume for purposes of this motion that Ohio has admitted that it only renders dog daycare services at its single location in Cleveland Heights, Ohio, in view of the Karlowicz declaration regarding Ohio's customers residing outside of Cleveland Heights and Cuyahoga County, Ohio and her having witnessed instances of actual confusion arising from the parties' use of the DOGTOPIA mark, there is, at minimum, a genuine dispute as to whether or not there is a likelihood of confusion arising from the parties' concurrent use of the DOGTOPIA mark in connection with dog daycare services in the geographic territories set Concurrent Use No. 94002438; Cancellation No. 92050834 21 forth in the involved concurrent use application.18 In view thereof, Happy's motion for summary judgment in the concurrent use proceeding is denied. As a result of this order, the only remaining issues in this case involve Happy's alleged entitlement to its applied-for concurrent use registration.19 As such, the parties may want to pursue accelerated case resolution (ACR) herein. The parties are again urged to review the Board's website http://www.uspto.gov/web/offices/com/sol/notices/acrognoticerule.pdf regarding ACR. If the parties agree to pursue ACR, whereby they would have the Board issue a final decision on the merits based on rebriefing after supplementation of the current record, they should file a stipulation with the Board within thirty days of the mailing date of this order. Proceedings herein otherwise remain suspended. 18 The parties should not infer from this finding on summary judgment that this is the only issue remaining for trial. 19 Concurrent use proceedings are usually settled by parties prior to trial.