JA Communicationsv.Jonathan Roche Fitness Ventures (IP) LLCDownload PDFTrademark Trial and Appeal BoardJan 30, 2014No. 92052836 (T.T.A.B. Jan. 30, 2014) Copy Citation THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: January 30, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ JA Communications v. Jonathan Roche Fitness Ventures (IP) LLC _____ Cancellation No. 92052836 against Registration No. 3391997 and Cancellation No. 92052844 against Registration No. 3792022 1 _____ Peter J. Ims of Westman, Champlin & Kelly, PA for JA Communications. Peter B. Scull of Hamilton, DeSanctis & Cho, LLP for Jonathan Roche Fitness Ventures (IP) LLC.2 _____ Before Seeherman, Quinn and Greenbaum, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: JA Communications (petitioner) seeks to cancel two registrations owned by Jonathan Roche Fitness Ventures (IP) LLC (respondent) for the standard character mark NO EXCUSES WORKOUT (WORKOUT disclaimed) for: 1 The two proceedings were consolidated on March 8, 2011, before trial commenced. 2 William T. Slamkowski of Jackson Kelly PLLC had also represented respondent through the filing of respondent’s brief on the case. On May 2, 2012 respondent withdrew the associate power of attorney for Mr. Slamkowski. We accept this withdrawal. Cancellation Nos. 92052836 & 92052844 2 Audio and video recordings featuring exercise, fitness and weight loss methods; Digital media, namely, pre-recorded video cassettes, digital video discs, digital versatile discs, downloadable audio and video recordings, DVDs, and high definition digital disks featuring exercise, fitness and weight loss methods; Downloadable multimedia file containing artwork, text, audio, video, games, and Internet Web links relating to exercise, fitness and weight loss methods; DVDs featuring exercise, fitness and weight loss methods; Pre-recorded CDs, video tapes, laser disks and DVDs featuring exercise, fitness and weight loss methods, in International Class 93 and Educational services, namely, conducting seminars and conferences in the field of fitness and distribution of course material in connection therewith; Educational services, namely, developing, arranging, and conducting educational conferences and programs and providing courses of instruction in the field of fitness; Educational services, namely, conducting online exhibitions and displays in the field of fitness; Entertainment services, namely, providing a website featuring photographic, audio, video and prose presentations featuring fitness; Health club services, namely, providing instruction and equipment in the field of physical exercise; Personal coaching services in the field of fitness; Personal trainer services; Personal training services, namely, strength and conditioning training; Physical education services; Training services in the field of fitness, in International Class 41.4 In its first amended petition for cancellation, petitioner alleges that respondent’s mark, when applied to respondent’s goods and services, so resembles petitioner’s previously used trademark, service mark or trade name NO EXCUSES 3 Registration No. 3792022, issued on May 25, 2010, based on an application filed on February 11, 2009 and alleging May 1, 2005 as the date of first use anywhere and in commerce. 4 Registration No. 3391997, issued on March 4, 2008, based on an application filed on September 11, 2006, and alleging May 1, 2005 as the date of first use anywhere and in commerce. Cancellation Nos. 92052836 & 92052844 3 WORKOUT for “lectures, seminars, articles, books, manuals and video recordings featuring exercise, fitness and weight loss methods and routines” and for “providing information regarding exercise routines and other information that promotes muscle toning, cardiovascular conditioning, fitness and health” as to be likely to cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Am. Pet. ¶1. Petitioner alleges that it “has continuously used its NO EXCUSES WORKOUT mark or trade name in commerce since about at least July 2002 to the present.” Id. ¶2. Respondent, in its answer, denied the salient allegations in the amended petition, and asserted that petitioner cannot prove likelihood of confusion because petitioner does not have proprietary rights superior to those of respondent.5 Answer, at Affirmative Defenses ¶¶ 1 and 2. Inasmuch as petitioner is asserting common-law rights, it is petitioner’s burden to prove the acquisition of prior rights. Thus, the “affirmative defenses” based on this assertion are merely amplifications of respondent’s denial of petitioner’s pleaded claims. Petitioner and respondent filed trial briefs, and petitioner filed a reply brief. Respondent’s Cross-Motion to Strike Before we make our final determination on the merits, we must address respondent’s motion to strike certain testimony and exhibits, consideration of which 5 Respondent asserted several other affirmative defenses, but did not pursue them at trial or in its brief, thus waiving the defenses. Cancellation Nos. 92052836 & 92052844 4 the Board deferred until final hearing.6 During petitioner’s testimony period, petitioner took the depositions of John Abdo, President and CEO of petitioner; Gary Chappell, President and CEO of petitioner’s publisher Nightingale Conant; and, as an adverse witness, respondent’s founder and CEO, Jonathan Roche. On November 15, 2012, during respondent’s testimony period, respondent filed a motion to strike ten of the eleven exhibits that petitioner introduced during Mr. Abdo’s testimonial deposition (Exhibits A through J), ten of the twenty-six exhibits that petitioner introduced during Mr. Roche’s testimonial deposition (Exhibits V through Y, AA, EE, FF, HH, II and JJ), the sole exhibit that petitioner introduced during Mr. Chappell’s testimonial deposition (Exhibit KK),7 and all related testimony, which ranges from one-third to one-half of each transcript. The motion is fully briefed. Exhibit A Exhibit A consists of two photographs or scans of two DVDs bearing the wording JOHN ABDO’S NO EXCUSES WORKOUT on the labels, where one label includes a photograph of a man, and one label includes a photograph of a woman.8 The words NO EXCUSES appear on a separate line and in much larger font than the other words. 6 The Board also deferred until final hearing consideration of petitioner’s second motion for leave to file an amended petition. As discussed infra, we need not and do not decide this motion. 7 During Mr. Chappell’s deposition, petitioner also elicited testimony regarding Exhibits B and C over respondent’s objections. Exhibits B and C are among the ten exhibits from Mr. Abdo’s deposition that petitioner seeks to strike. 8 Mr. Abdo testified that the content of the DVDs is the same even though the labels differ. Abdo Test., p. 10. Cancellation Nos. 92052836 & 92052844 5 Contrary to respondent’s arguments regarding improper authentication and lack of foundation, we find that petitioner properly introduced the document into evidence. Mr. Abdo testified based on his first-hand knowledge that he produced the DVDs, the DVDs contain an exercise routine, and they have been sold consistently since 2001 or 2002. Abdo Test., pp. 10-16. In light of this testimony, we further find that petitioner did not use this exhibit in a “misleading manner” (Mot. to Strike, p. 17), even if the copyright date on the DVDs is not legible. Accordingly, we deny the motion to strike Exhibit A. Exhibit B Exhibit B consists of a one-page photograph of a display of petitioner’s multi- faceted program entitled “John Abdo’s Vital Living from the Inside-Out” (hereafter, “Vital Living program”). The Vital Living program, as shown in Exhibit B, includes a manual and a video component in the form of cassettes and DVDs all entitled JOHN ABDO’S VITAL LIVING FROM THE INSIDE-OUT (where VITAL LIVING appears in larger font). The Vital Living program also includes a workout video bearing the label JOHN ABDO’S NO EXCUSES WORKOUT (where NO EXCUSES appears in larger font), shown on the lower left side of Exhibit B, and a manual entitled JOHN ABDO’S NO EXCUSES! WORKOUT & EATING PLAN (where NO EXCUSES! appears in larger font), shown on the middle right side of the exhibit. Respondent asserts that petitioner is estopped from relying on this exhibit, contending that petitioner’s counsel first produced Exhibit B on September 20, 2012, the day before Mr. Abdo’s testimony deposition. See e.g., Panda Travel, Inc. v. Cancellation Nos. 92052836 & 92052844 6 Resort Option Enterprises, Inc., 94 USPQ2d 1789, 1792-93 (TTAB 2009) (documents not produced until after the start of trial stricken). There is no question that Exhibit B is responsive to certain discovery requests, and that petitioner did not produce this document as part of its disclosures or during discovery. However, the record shows that Mr. Abdo provided Exhibit B (and Exhibit A) to respondent’s prior counsel, Kevin Callahan, in response to a cease and desist email on July 12, 2010.9 As respondent has had a copy of Exhibit B since July 12, 2010, we deny the motion to strike this exhibit. We see no undue prejudice to respondent based on petitioner’s failure to also produce the document during discovery, or to identify it on September 18, 2012 as one of the documents that would be used during Mr. Abdo’s testimony. As will be seen below, none of the other exhibits that respondent seeks to exclude is outcome determinative. Given this, coupled with the number of objections, we see no compelling reason to discuss the other objections. Record The record consists of the pleadings; the files of the involved registrations; the testimonial depositions, with accompanying exhibits, of Messrs. Abdo, Chappell and Roche; and each party’s notice of reliance. 9 In response to the motion to strike, petitioner’s counsel submitted, with his own declaration, a copy of the July 12, 2010 email exchange (on which he was copied), and printouts of Exhibits A and B, which he avers were attached to Mr. Abdo’s email. The revocation of Mr. Callahan and appointment of respondent’s current counsel, Mr. Scull, was filed on November 17, 2010, approximately 10 days after initial disclosures were due. Cancellation Nos. 92052836 & 92052844 7 The Parties Both parties are involved in the fitness and training industry, and both have developed workouts that can be done outside the gym in a limited amount of time. Mr. Abdo, petitioner’s principal, testified that he developed the “no excuses philosophy” in the 1980s, after hearing various excuses from athletes and other individuals about why they could not exercise (e.g., injury, time, motivation). Mr. Abdo further testified that in conjunction with this philosophy, he developed an exercise routine, which he named the “No Excuses Workout,” that provides a total body workout that anyone can do anywhere, at any time. Abdo Test., pp. 7-8. Mr. Roche, respondent’s founder and CEO, testified that respondent’s NO EXCUSES WORKOUT video “is in-home strength training using body weight that can be done in 6-, 12-, 18- or 24-minute increments.” Roche Test., p. 37. According to Mr. Roche, respondent provides the NO EXCUSES WORKOUT video as part of a larger program entitled the “No Excuses Workout System,” which now is web-based. Id., pp. 67-69, 131. Mr. Roche further testified that respondent also provides, as part of the “No Excuses Workout System,” web-based training services for various races, such as marathons and mini-triathlons. Id., p. 68. Standing We first consider whether petitioner has standing to bring this opposition proceeding. Standing is a threshold issue that must be proven by a plaintiff in every inter partes case.10 See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 10 Contrary to petitioner’s assertions in its reply brief, respondent was not required to plead petitioner’s lack of standing as an affirmative defense, or even to raise the issue. Cancellation Nos. 92052836 & 92052844 8 (Fed. Cir. 1999); Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021, 2023 (Fed. Cir. 1987); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 188 (CCPA 1982). The purpose of the standing requirement, which is directed solely to the interest of the plaintiff, is to prevent litigation when there is no real controversy between the parties. Lipton, 213 USPQ at 189. Under Section 14 of the Trademark Act, 15 U.S.C. § 1064, anyone with a reasonable belief that he would be damaged by a registration has standing to file a petition to cancel the registration. Respondent contends that all documentary evidence points either to John Abdo or JA Fitness, rather than the named petitioner, JA Communications, as the proper party to this proceeding; that Mr. Abdo’s testimony on the issue is “vague” and “self-serving”; and that his testimony, in general, suffers from a “lack of credibility.” Resp. Br., p. 5. We disagree, and instead find that Mr. Abdo’s testimony is credible and establishes that petitioner uses the wording shown in petitioner’s Exhibits A and B for goods similar to the goods and the subject matter of the services identified in the subject registrations. Abdo Test., pp. 86-89. As that wording includes NO EXCUSES and WORKOUT, petitioner possesses a real interest in the proceeding and is not a mere intermeddler. Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (common-law use sufficient to establish standing). Cancellation Nos. 92052836 & 92052844 9 Priority To establish priority on a likelihood of confusion claim brought under Trademark Act §2(d), a party must prove that it owns “a mark or trade name previously used in the United States … and not abandoned….” Trademark Act Section 2, 15 U.S.C. §1052. A party may establish its own prior proprietary rights in a mark through ownership of a prior registration, actual use or through use analogous to trademark use, such as use in advertising brochures, trade publications, catalogs, newspaper advertisements and Internet websites which create a public awareness of the designation as a trademark identifying the party as a source. See Trademark Act §§2(d) and 45, 15 U.S.C. §§1052(d) and 1127. See also T.A.B. Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996). There must be “regular or recurring activity” such as to constitute source identification in the eyes of consumers. Giersch v. Scripps, 90 USPQ2d 1020, 1023 (TTAB 2009). As petitioner does not own an existing registration, petitioner must rely on its common-law use to prove priority. In order for a plaintiff to prevail on a claim of likelihood of confusion based on its ownership of common-law rights in a mark, the mark must be distinctive, inherently or otherwise, and the plaintiff must show priority of use. Id; see also Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981). The labels for the DVDs in Exhibit A and the video in Exhibit B bear the wording JOHN ABDO’S NO EXCUSES WORKOUT. Further, based on the manner Cancellation Nos. 92052836 & 92052844 10 in which the mark is displayed, with NO EXCUSES in larger letters and on a separate line from JOHN ABDO’s, which is above it, and WORKOUT, which is below it, NO EXCUSES makes a separate commercial impression such that we can conclude that it is, per se, a trademark for the DVD and video. The same is true for the manual: NO EXCUSES appears on a separate line and in larger letters than JOHN ABDO’S, which is above it, and WORKOUT & EATING PLAN which is below it. In addition, the term WORKOUT, which is defined as “a structured regime of physical exercise,”11 is a generic term for petitioner’s exercise videos, and therefore has no source-identifying function for these goods.12 Accordingly, we focus on petitioner’s use of NO EXCUSES in the remainder of this decision. In a case involving common-law rights, “the decision as to priority is made in accordance with the preponderance of the evidence.” Hydro-Dynamics Inc. v. George Putnam & Company Inc., 811 F.2d 1470, 1 USPQ2d 1772 (Fed. Cir. 1987). In this case, the most relevant evidence consists of Exhibits A and B to Mr. Abdo’s testimonial deposition, and the associated testimony of Messrs. Abdo and Chappell. Mr. Abdo testified that the NO EXCUSES workout consists of free-hand and calisthenics exercises that can be done anywhere, anytime, with no need for equipment, that he compiled into a video. Abdo Test., p. 8. He further testified that 11 Definition from Dictionary.com (based on The Random House Dictionary (2013)). The Board may take judicial notice of dictionary definitions, including online dictionaries with regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff'd., 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). 12 Similarly, WORKOUT has no source-identifying function for respondent’s goods and services and, as noted previously, it has been disclaimed in the involved registrations. See In re Creative Goldsmiths of Wash., Inc., 229 USPQ 766, 768 (TTAB 1986). Cancellation Nos. 92052836 & 92052844 11 the NO EXCUSES manual shown as part of the Vital Living program displayed in Exhibit B contains every exercise on the video, with still figures depicting the beginning and end of each exercise, and a description of the exercise and the muscles involved, plus a separate eating plan with nutritional guidelines. Abdo Test., p. 24. Mr. Abdo also testified, and Mr. Chappell confirmed, that Nightingale Conant has sold the Vital Living program since 2002, and that the NO EXCUSES video and manual were included in each sale (Abdo Test., pp. 28, 31-33, 42-43; Chappell Test., pp. 8-9, 14-15). In addition, Mr. Abdo testified that since 2001 or 2002, he continuously has sold the NO EXCUSES DVDs displayed in Exhibit A through his website, through the Life Extension Foundation website, and at some of his lectures and seminars. Abdo Test., pp. 15-16. Based on the foregoing testimony and evidence, we find that petitioner has established common-law rights to the mark NO EXCUSES for “manuals and video recordings featuring exercise, fitness and weight loss methods and routines” through actual use since at least 2002. Respondent does not claim use of its mark prior to 2005. Roche Test., pp. 23, 24, 30, 31, 33-35, et al. Since petitioner has shown use of NO EXCUSES as a mark for the pleaded “manuals and video recordings featuring exercise, fitness and weight loss methods and routines” since 2002, petitioner has established its priority. Inasmuch as petitioner has established priority, we now turn to the likelihood of confusion analysis. Cancellation Nos. 92052836 & 92052844 12 Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and/or services at issue. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). We begin with a comparison of petitioner’s mark NO EXCUSES and registrant's mark NO EXCUSES WORKOUT in their entireties in terms of sound, appearance, meaning and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In comparing the marks, the test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impressions that confusion as to the source of the goods and services offered under the respective marks is likely to result. The focus is on the recollection of the average purchaser, who normally retains a general, rather than a specific, impression of trademarks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). In addition, while marks must be compared in their entireties, it is well settled that one feature of a mark may have more significance than another, and there is nothing improper Cancellation Nos. 92052836 & 92052844 13 in giving greater weight to the more significant feature. See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). In this case, NO EXCUSES constitutes the entirety of petitioner’s mark. NO EXCUSES also is the dominant and most significant feature of respondent’s mark, not only because it appears first in respondent’s mark (see Palm Bay, 73 USPQ2d at 1692), but also because it has stronger source-identifying potential than the word WORKOUT. As mentioned above, WORKOUT is a generic term for the subject matter of the goods and services identified in the registrations, and appropriately has been disclaimed in each registration. Descriptive and disclaimed matter typically is less significant or less dominant when comparing marks. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000), quoting In re National Data Corp., 224 USPQ at 752 (Fed. Cir. 1983) (“Regarding descriptive terms, this court has noted that the descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.”). Thus, the addition of the generic word WORKOUT is not sufficient to distinguish the marks. See In re Chatam Int'l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004). Because of the overall similarities of the marks, consumers are likely to view NO EXCUSES and NO EXCUSES WORKOUT as variations of each other, with both marks indicating a single source for the goods and services. Even if we treat NO EXCUSES as mildly suggestive of an exercise program that is convenient and time-efficient, this term has the same meaning for petitioner’s goods and the goods Cancellation Nos. 92052836 & 92052844 14 and services described in the registrations. Therefore, we find that the parties’ marks are substantially similar in sound, appearance, connotation and commercial impression. We turn next to a consideration of the goods and services, channels of trade and class of purchasers. As noted above, the identification of goods in Registration No. 3792022 includes audio and video recordings, DVDs and pre-recorded CDs, video tapes and laser discs all featuring exercise, fitness and weight loss methods. The record shows that petitioner uses the substantially similar NO EXCUSES mark on exercise and fitness videos (Abdo Test., pp. 8, 10, 18), and that respondent’s identified goods must be deemed to encompass the type of videos on which petitioner uses its mark. We make our determination about likelihood of confusion based on the goods and services as they are described in respondent’s registrations. Octocom Systems, Inc., v. Houston Computers Services, Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). This is sufficient for us to find that petitioner’s goods and the goods in Registration No. 3792022 are legally identical, and for this factor to favor petitioner. See Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007). Further, the various educational, entertainment, health club and personal training services identified in Registration No. 3391997 also pertain to exercise, fitness and weight loss, the subjects of petitioner’s videos and manual. It is well recognized that goods and services may be related if they involve the same subject Cancellation Nos. 92052836 & 92052844 15 matter. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988) (furniture and general merchandise store services); INB National Bank v. Metrohost, Inc., 22 USPQ2d 1585, 1587-1588 (TTAB 1992) (banking services and credit cards); Steelcase, Inc. v. Steelcare, Inc., 219 USPQ 433, 435 (TTAB 1983) (furniture and furniture refinishing). We therefore find that petitioner’s exercise and fitness videos and manual are related to the services recited in Registration No. 3391997. Because there are no limitations as to channels of trade or classes of purchasers in the descriptions of goods and services in respondent’s registrations, it is presumed that respondent’s goods and services move in all channels of trade normal for those goods and services, and that they are available to all classes of purchasers for those goods and services. See Coach Services Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1360-61, 56 USPQ2d 1351, 1357 (Fed. Cir. 2000) (“When the registration does not contain limitations describing a particular channel of trade or class of customer, the goods or services are assumed to travel in all normal channels of trade.”). Such purchasers would include individuals who are too busy to exercise at a gym. Respondent’s principal, Mr. Roche, confirmed this presumption. Roche Test., p. 37 (“our target customer is really a stay-at-home mom who’s too busy to go to a gym.”). Petitioner also targets the same class of customers. Abdo Test., p. 8. Likewise, both parties presented testimony that they sell or give away their exercise videos at educational events. Cancellation Nos. 92052836 & 92052844 16 Abdo Test., pp. 16, 41; Roche Test., p. 181. We therefore find that the classes of purchasers and the channels of trade are, at least in part, the same. Conclusion We have confined our discussion to the du Pont factors discussed by the parties. To the extent that any other factors are relevant, we have treated them as neutral. For the reasons discussed above, we find that respondent’s mark NO EXCUSES WORKOUT, as used on respondent’s goods and in connection with respondent’s services, so closely resembles petitioner’s earlier used mark NO EXCUSES, as to be likely to cause confusion, mistake or deception as to the source of respondent’s goods and services. Decision: The petition for cancellation is sustained as to each registration. Respondent’s Registrations Nos. 3792022 and 3391997 will be cancelled in due course.13 13 We need not decide petitioner’s second motion for leave to amend the pleadings to add claims of fraud and abandonment, as entry of judgment on the likelihood of confusion claim will result in cancellation of respondent’s registrations, and judgment on the additional claims “would neither bar [respondent] from filing a new application nor allow petitioner to challenge it on the basis of claim preclusion,” as the claims relate specifically to the procurement and use of the involved registrations. Multisorb Tech., Inc. v. Pactiv Corp., 109, USPQ2d 1170, 1172 (TTAB 2013). “We see no point in this instance in engaging in further litigation over whether the registration was procured by fraud when the only remedy — cancellation of this registration — has already been granted and a decision on the fraud claim would have, at best, limited effect on petitioner's ability to challenge any future attempt by respondent to register the mark.” Id. Copy with citationCopy as parenthetical citation