Kenneth Rigdonv.Brandon Olson

Trademark Trial and Appeal Board

Oct 26, 2016

No. 91209598 (T.T.A.B. Oct. 26, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 26, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Kenneth Rigdon
v.
Brandon Olson
_____

Opposition No. 91209598
_____

Sophilia Wu, Esq., Mullin Law, PC,
for Kenneth Rigdon.

Brandon Olson, pro se.
_____

Before Quinn, Wolfson, and Masiello,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Brandon Olson (“Applicant”) seeks to register the mark BRICK WARFARE LLC
(in standard characters) on the Principal Register for “toy weapons” in International
Class 28.1 Kenneth Rigdon (“Opposer”) opposes registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), alleging that Applicant’s use of his mark will

1 Trademark application Serial No. 85652236, filed June 14, 2012 on the basis of Applicant’s
bona fide intent to use the mark in commerce.
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cause a likelihood of confusion with Opposer’s prior use of the mark MODERN BRICK
WARFARE in connection with sales of action figures and toy accessories. Opposer
further asserts that he filed an application on November 6, 2012 to register the mark
MODERN BRICK WARFARE (in standard characters) for “on-line retail store
services featuring action figures and accessories therefor.” During trial, Opposer
provided evidence that his MODERN BRICK WARFARE trademark application was
provisionally refused and suspended pending the final disposition of Applicant’s
application.
The proceeding is fully briefed. For the following reasons, we sustain the
opposition.
I. Evidentiary Objections
We first address Opposer’s evidentiary objection to the three submissions filed by
Applicant during his trial period. The first, filed on July 23, 2015, is a single-page
document styled “Notice of Filing Certified Declaration,” which states: “Applicant …
files with the Board … this Notice of filing a certified Affidavit to supplement for live
testimony.”2 The statement is construed as a statement of intent to file a written
affidavit in lieu of live testimony; however no materials or exhibits accompany this
submission. On the same date, Applicant filed a four-page document styled “Notice of
Reliance;”3 similarly, although the submission states that “Applicant … hereby gives
notice of its reliance of the following materials….” and lists as such materials

2 49 TTABVUE.
3 50 TTABVUE.
Opposition No. 91209598
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Applicant’s affidavit and Exhibits A-N, no affidavit or other materials accompany this
submission. The third submission, filed on July 27, 2015,4 consists of the affidavit of
Brandon Olson and Exhibits A-N to Mr. Olson’s affidavit, and further includes a copy
of “Applicant’s Supplemental Responses to Opposer’s Set of Interrogatories” and an
“Exhibit E” to the Supplemental Responses.5
Taken together, we have construed Applicant’s first two submissions as “cover
letters” for his third submission, which contains Applicant’s substantive evidence.
Opposer contends that none of Applicant’s submissions, however, are admissible. We
sustain Opposer’s objections for the reasons stated below.
1. Applicant’s Supplemental Responses to Opposer’s Interrogatories; Exhibit E
We sustain Opposer’s objection to Applicant’s Supplemental Responses under
Trademark Rule 2.120(j)(5), which provides that “written disclosures, an answer to
an interrogatory, or an admission to a request for admission, may be submitted and
made part of the record only by the receiving or inquiring party” (unless being offered
to counter portions of any such discovery submitted by the other side, a situation not
applicable here). See also TBMP § 704.10 (June 2016) and authorities cited in that
section. While Opposer has submitted Applicant’s initial set of responses to Opposer’s
interrogatories as part of Opposer’s case-in-chief, Applicant’s attempt to add his
supplemental responses to the record cannot be characterized as necessary to avoid

4 51 TTABVUE.
5 Also included in this submission are duplicate copies of the notices filed at 49 TTABVUE
and 50 TTABVUE.
Opposition No. 91209598
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an unfair interpretation of the Interrogatory responses offered by Opposer.6
Accordingly, Applicant’s supplemental responses have not been considered. On the
other hand, some of the materials comprising “Exhibit E” to Applicant’s supplemental
responses are of record under Trademark Rule 2.122(e) in that they are official
records of the State of Washington.7 Applicant’s Exhibit E also contains duplicates of
some of the materials that were submitted by Opposer as part of its case-in-chief
through Opposer’s “Notice of Reliance Exhibit E.”8
2. Brandon Olson Affidavit; Exhibits A-N
Trademark Rule 2.123(b) provides that the testimony of any witness or witnesses
of any party is inadmissible in the form of an affidavit by such witness or witnesses
except by “written agreement of the parties.” In this case, the parties entered into a
stipulation on February 26, 2014, wherein they agreed that direct testimony could be
submitted “in affidavit form.”9 As a condition to admissibility, any such affidavit had
to “be exchanged no later than July 26, 2014.” The parties filed cross-motions for

6 Opposer submitted Applicant’s complete responses to Opposer’s interrogatories. 45
TTABVUE 34-44.
7 These documents are exhibits F, G and K to the affidavit of Mr. Olson, described infra.
8 These materials are discussed more fully in the description of the record, infra. Applicant
should not have filed copies of documents already properly made of record by Opposer,
however. Once testimony or any other evidence is introduced, it is of record for any purpose,
and the adverse party need not take any action in order to rely on it. See Bos. Athletic Ass’n
v. Velocity, LLC, 117 USPQ2d 1492, 1494 n.7 (TTAB 2015) (testimony deposition made of
record by plaintiff need not have been filed under Notice of Reliance by defendant); American
Lebanese Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d
1022, 1025 (TTAB 2011).
9 54 TTABVUE 9.
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summary judgment shortly after executing this agreement, and several “affidavits”10
were filed as part of the motion for summary judgment (presumably, concurrently to
their being “exchanged”), but not Mr. Olson’s affidavit.11 Although it is undated, it
was not filed with the Board until well after the cross motions for summary judgment
were denied, and Applicant does not contend that it was “exchanged” at any time
prior to or including July 26, 2014. Accordingly, we sustain Opposer’s objection to the
introduction of Mr. Olson’s affidavit and attached Exhibits A-N.12 Trademark Rule
2.123(b); see also Joel Gott Wines LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424,
1427 (TTAB 2013) (opposer’s motion to strike declaration of applicant’s corporate
secretary and accompanying exhibits granted; parties did not stipulate to the
submission of testimony via declaration or affidavit).
We now examine Exhibits D, E and H to Mr. Olson’s affidavit more closely, in light
of the parties’ stipulation regarding affidavits “exchanged [prior to] July 26, 2014.”
These exhibits are the third-party declarations initially filed in April 2014 as part of
Applicant’s evidence in support of his summary judgment motion.13 As was the case

10 The declarations filed in connection with the cross summary judgment motions are not
technically “affidavits” because they do not contain an oath, affidavit, verification or sworn
statement. Following Opposer’s objection to consideration of the declarations on the ground
that they do not even contain a statement under either 28 U.S.C. 1746 or 18 U.S.C. 1001 in
lieu of an oath, see Trademark Rule 2.20, (23 TTABVUE), Applicant refiled the declarations
with additional pages bearing declaration language inserted into each declaration. For
purposes of the cross summary judgment motions, the declarations were accepted.
11 The motion for summary judgment was denied well after July 26, 2014 (on November 23,
2014) and proceedings resumed with Opposer’s pretrial disclosures due January 4, 2015. Mr.
Olson’s declaration was not filed until July 27, 2015.
12 Except to the extent, as noted above, that Exhibits A-N duplicate those properly made of
record by Opposer.
13 51 TTABVUE 66-70 (Exhibit D); 71-78 (Exhibit E); and 85-93 (Exhibit H).
Opposition No. 91209598
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with the declarations as initially filed, none bear an oath, affidavit, verification or
sworn statement. They also fail as declarations in lieu of an affidavit because none
bear a statement under 28 U.S.C. § 1746 recognizing that statements are being made
under penalty of perjury, or a statement pursuant to Trademark Rule 2.20
recognizing that willful false statements and the like are punishable under 18 U.S.C.
§ 1001 and that such willful false statements and the like may jeopardize the validity
of the application.14 Because these three statements are not in compliance with the
terms of the stipulation allowing direct testimony to be submitted only “in affidavit
form,” the stipulation does not apply to them. Absent a stipulation, these declarations
are not admissible. Declaration testimony submitted in connection with a summary
judgment motion is not considered to be of record unless it has been properly
introduced at trial, thereby providing the adverse party an opportunity to cross-
examine the witnesses and confirm the accuracy of statements in the declarations.
See Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1465 n. 2
(TTAB 1993) (materials submitted in connection with summary judgment motion of
record “only to the extent that particular papers were made of record in accordance
with the Trademark Rules of Practice”). Accordingly, the declarations have not been
properly made of record.15

14 We need not reach the question of the propriety of the declaration statements as filed in
connection with the summary judgment motion because the pages containing such
statements were not included with the declarations when re-submitted by Applicant as
Exhibits D, E and H to Mr. Olson’s affidavit.
15 Even if considered, the declarations are unpersuasive of a different result in this
proceeding, as is discussed more fully infra.
Opposition No. 91209598
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II. Description of the Record
In light of our evidentiary rulings, the record consists of the following:
The pleadings and the file of the involved application, which automatically form
part of the record. Trademark Rule 2.122(b)(1).
Evidence and testimony filed by Opposer:
1. Copies of the file history of Opposer’s trademark
application Serial No. 85773051 for the mark MODERN
BRICK WARFARE for “on-line retail store services
featuring action figures and accessories therefor” in
International Class 35, including a suspension notice
issued to Opposer in that application provisionally refusing
Opposer’s application based on Applicant’s pending
application;16
2. Copies of Applicant’s written interrogatory responses
and documents produced by Applicant in lieu of responses
to interrogatories propounded by Opposer admissible
under Trademark Rule 2.120(j)(5);17
3. Copies of documents admissible under Trademark Rule
2.122(e) as official records;18

16 45 TTABVUE 5-34.
17 These documents are (1) a copy of an email from Applicant’s Chinese supplier dated March
13, 2013 and (2) a copy of two screen shots from Applicant’s web designer’s computer. (45
TTABVUE 65-69).
18 These comprise Applicant’s corporate formation documents and reports Applicant filed
with the State of Washington:
(1) a copy of a Washington state “license query search” dated 11/17/2011 for the entity “Mini
Fig Arms” (45 TTABVUE 77);
(2) an application for an Employer Identification Number dated 3/12/12 (45 TTABVUE 79);
(3) an unsigned copy of a State of Washington form entitled “Limited Liability Company
Renewal & Annual Report” (45 TTABVUE 86);
(4) an undated Addendum to Applicant’s business license application filed with the State of
Washington Business Licensing Service (45 TTABVUE 99);
(5) a copy of a payment receipt dated 4/25/2012 for a UBI (45 TTABVUE 100);
Opposition No. 91209598
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4. Copy of a document admissible under Safer Inc. v. OMS
Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010)
(holding document obtained from the Internet
admissible if it identifies its date of publication or date
that it was accessed and printed, and its source (e.g.,
the URL));19 and
5. Opposer Kenneth Rigdon’s testimony deposition and
accompanying exhibits.
Evidence filed by Applicant:
Three of the exhibits to Mr. Olsen’s declaration are admissible under
Trademark Rule 2.122(e), namely, Exhibits F, G, and K.
1. Exhibit F is a receipt from the Washington State
Department of Labor and Industries showing payment of
$20 on 11/17/2011 for a UBI (the unified business identifier
is a registration number used to identify persons engaging
in business activities in Washington state) (51 TTABVUE
80);
2. Exhibit G is a copy of a business license application dated
11/17/2011 for the “Brick Warfare” trade name with the
State of Washington Business Licensing Service (51
TTABVUE 82); and
3. Exhibit K includes a copy of the certificate of formation
issued to Applicant by the Secretary of State of the State of
Washington dated 3/20/2012 (51 TTABVUE 104).

(6) a copy of Applicant’s initial Annual Report filed on 12/20/2012 with the Corporations
Division of the State of Washington (45 TTABVUE 101-103);
(7) a copy of Applicant’s Washington state business license showing an expiration date of
4/30/13 (45 TTABVUE 105); and
(8) a copy of a letter dated May 10, 2012 from the state of Washington’s Department of
Revenue (45 TTABVUE 106).
19 A copy of a Facebook “About” page accessed at http://www.facebook.com/pages/Brick-
Warfare-LLC/1685971… on 10/8/13. (45 TTABVUE 78).
Opposition No. 91209598
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III. Opposer’s Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); Ritchie v.
Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
Opposer’s standing to oppose registration of Applicant’s mark is established by
Opposer’s proof that suspension of his pending application, Serial No. 85773051 for
the mark MODERN BRICK WARFARE, is based on Applicant’s prior pending
trademark application for BRICK WARFARE LLC.20 See Life Zone Inc. v. Middleman
Group Inc., 87 USPQ2d 1953 (TTAB 2008) (standing found based on opposer’s
ownership of pending trademark application and Office action which raised
defendant’s application as a potential bar to registration). Cf. Empresa Cubana, 111
USPQ2d at 1062 (“Because the USPTO refused Cubatabaco registration based on a
likelihood of confusion with General Cigar’s Registrations, Cubatabaco has a real
interest in cancelling the Registrations and a reasonable belief that the Registrations
blocking its application are causing it damage.”); Kallamni v. Khan, 101 USPQ2d
1864 (TTAB 2012) (standing based on final refusal to register petitioner’s pending
application based on respondent’s registration).

20 Opposer, during his deposition, identified the suspension notice that he received from the
Office suspending his application pending the outcome of Applicant’s application. 46
TTABVUE 11; Exhibit 5.
Opposition No. 91209598
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IV. Priority
To establish priority on a likelihood of confusion claim brought under Trademark
Act §2(d), a party must prove that, vis-à-vis the other party, 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; Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022
(TTAB 2009). “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, catalogues,
newspaper advertisements and Internet websites which create a public awareness of
the designation as a trademark identifying the party as a source.” Id.
In this case, Opposer must prove by a preponderance of the evidence that his
common law rights were acquired before any date upon which Applicant may rely.
Trademark Act Section 2, 15 U.S.C. § 1052; Hydro-Dynamics Inc. v. George Putnam
& Company Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (The “decision
as to priority is made in accordance with the preponderance of the evidence”).
Applicant, at the very least, can rely on the filing date of his trademark application,
June 14, 2012. Giersch, 90 USPQ2d 1020; see also Zirco Corp. v. American Telephone
and Telegraph Co., 21 USPQ2d 1542, 1544 (TTAB 1991) (“[T]here can be no doubt
but that the right to rely upon the constructive use date comes into existence with
the filing of the intent-to-use application and that an intent-to-use applicant can rely
upon this date in an opposition brought by a third party asserting common law
rights.”).
Opposition No. 91209598
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Opposer, during his deposition, stated that he first starting using the MODERN
BRICK WARFARE mark in United States commerce on May 19, 2012.21 Exhibits 7
and 8 were introduced in support of Opposer’s assertion.22 Exhibit 7 is a notice from
PayPal dated May 19, 2012, advising “Modern Brick Warfare” that payment has been
received for a LEGO®-compatible toy weapon and minifigure. Opposer identifies
Exhibit 7 as evidencing “the first sale I had under the Modern Brick Warfare
Trademark.”23 Exhibit 8 is a copy of “all my sales on May 20th through May 31st of
2012.”24 The sales chart indicates several payments were completed and shipments
made starting on May 20, 2012. Opposer has shown that he made common-law use of
his MODERN BRICK WARFARE mark in connection with his alleged services prior
to Applicant’s filing date of June 14, 2012.
In an attempt to show that he first used his mark prior to the filing date of his
BRICK WARFARE LLC trademark application, Applicant submitted, as discussed
above, his affidavit, with accompanying exhibits, and supplemental answers to
Opposer’s interrogatories, with accompanying exhibits. Of these materials, the
official documents, such as the certificate of formation from the State of Washington,
are properly of record in this proceeding. Additional documents showing Applicant’s
formation of a limited liability company under the trade name “Brick Warfare LLC”
were filed by Opposer. None of these, however, support Applicant’s claim of first use

21 46 TTABVUE 15.
22 Exhibit 7 is at 46 TTABVUE 103; Exhibit 8 is at 46 TTABVUE 104-114.
23 46 TTABVUE 18.
24 46 TTABVUE 19.
Opposition No. 91209598
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of “Brick Warfare LLC” as a trademark. “Since use is the basis for obtaining
exclusionary rights, merely obtaining a corporate charter under a corporate name
does not itself confer rights in the name without actual usage.” McCarthy on
Trademarks and Unfair Competition § 9:2 (4th ed.). See also American Hydrotherm
Corp. v. Hydrotherm, Inc., 164 USPQ 143, 148 (TTAB 1969) (“But, the mere filing of
a corporate name with the corporate department of a state, as was done by American
Hydrotherm Corporation’s predecessor on June 26, 1945, does not bestow rights
therein as of that time in the absence of evidence of use thereof in connection with a
going business and in a manner calculated to come to the attention of the public.”);
Geo. George Washington Mint, Inc. v. Washington Mint, Inc., 349 F. Supp. 255, 176
USPQ 251, 255 (S.D.N.Y. 1972) (“The prior incorporation of the defendant, in itself,
does not establish priority of trademark use.”).
Opposer has shown that he first used his mark MODERN BRICK WARFARE
prior to any use of the mark BRICK WARFARE LLC by Applicant.
V. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all 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); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods or services, the first two du Pont factors. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
Opposition No. 91209598
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inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”). Opposer bears the burden
of proving its claim of likelihood of confusion by a preponderance of the evidence.
Cunningham, 55 USPQ2d at 1848.
We start our analysis by noting that Applicant did not argue the issue of likelihood
of confusion in his brief. This omission suggests that Applicant agrees with Opposer
that there is a likelihood of confusion. See Alcatraz Media, Inc. v. Chesapeake Marine
Tours, Inc., 107 USPQ2d 1750, aff’d, 565 F.App’x 900 (Fed. Cir. 2014) (mem.) (failure
to reference a claim in a brief may constitute waiver). Despite the parties’ apparent
concurrence, we conduct our own analysis and address in turn each of the du Pont
factors for which Opposer submitted evidence or argument. We treat any other du
Pont factors as neutral.
A. Similarity of the Goods and Services
The second du Pont factor assesses the similarity or dissimilarity of the parties’
goods and services. Goods and services may be related if they involve the same subject
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).
Applicant’s goods are “toy weapons.” Opposer testified that his services feature
“the sale of action figures, and a vast variety of accessories, including those
compatible with Lego products and customized weapons and gear for Lego
Opposition No. 91209598
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minifigures.”25 Applicant’s FaceBook “About” page indicates that Applicant also sells
“LEGO® compatible weapons.”26 The goods and services are thus highly related. The
second du Pont factor strongly favors a finding of likelihood of confusion.
B. Channels of Trade and Classes of Consumers
Opposer testified that he sells his goods on his website,
www.modernbrickwarfare.com, and also through eBay.com.27 He identified Exhibit 6
as screenshots of Opposer’s website28 and Exhibit 10 as screenshots of Applicant’s
website.29 Both display similar toy weapons compatible with LEGO minifigures. Mr.
Rigdon also testified that he attends trade shows throughout the United States.30 He
considers Applicant to be a direct competitor, because they “both advertise to
customers interested in purchasing action figures and accessories for Lego
minifigures”31 and because “I have visited his website multiple times over the last
several years, and his products are very similar to mine.”32
We find that the du Pont factors involving trade channels and classes of
purchasers also favor a finding of likelihood of confusion.

25 46 TTABVUE 13.
26 45 TTABVUE 78.
27 46 TTABVUE 14.
28 46 TTABVUE 17.
29 46 TTABVUE 22.
30 46 TTABVUE 13.
31 46 TTABVUE 28.
32 46 TTABVUE 15.
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C. Similarity of the Marks
We turn next to the first du Pont factor, the similarity of the parties’ marks. In a
likelihood of confusion analysis, we compare the marks in their entireties for
similarities and dissimilarities in appearance, sound, connotation and commercial
impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “The proper test is not
a side-by-side comparison of the marks, but instead whether the marks are
sufficiently similar in terms of their commercial impression such that persons who
encounter the marks would be likely to assume a connection between the parties.”
Coach, 101 USPQ2d at 1721 (citation omitted).
Applicant seeks to register the mark BRICK WARFARE LLC. Opposers’ mark is
MODERN BRICK WARFARE. The marks look and sound alike because they share
the distinctive phrase “brick warfare.”33 They have similar connotations; the word
“modern” in Opposer’s mark would likely be interpreted to suggest an updated,
contemporary or trendy version of an original product line known as “brick warfare.”
The entity designation LLC adds little to Applicant’s mark, having no trademark
significance. Overall, the marks are highly similar.
The first du Pont factor also strongly favors a finding of likelihood of confusion.

33 “Brick” is “slang for LEGO.” Rigdon Testimony deposition, p. 24, 46 TTABVUE 29.
Opposition No. 91209598
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D. Actual Confusion
During his testimony deposition, Opposer identified a series of emails that tend to
evidence actual confusion by a coordinator of a LEGO event:34
(Opposer Exhibit 11 introduced)
Q. (BY MS. EDLUND) Can you please tell me what this is?
A. This was an email I had between me and the coordinator for a Lego
event.
Q. And can you tell me a little bit about what happened?
A. I had requested to have some tables at this Lego event and I was
confirmed. And then they had pulled the tables because apparently
there was some confusion between Brick Warfare and my company,
Modern Brick Warfare, and some conflict of interest. And so since
that confusion happened, they pulled the tables. And then later on
came back and apologized and said that they had confused us with
Brick Warfare, and offered the tables -- offered to give the tables
back.
Q. And when you said that they had confused you with Brick Warfare,
are you referring to the Applicant --
A. Yes.
Q. in this proceeding?
A. Yes.
Evidence of actual confusion, where it exists, is highly probative in a likelihood of
confusion analysis. “A showing of actual confusion would of course be highly
probative, if not conclusive, of a high likelihood of confusion.” In re Majestic Distilling
Co., 65 USPQ2d, at 1205. See also Thompson v. Haynes, 305 F.3d 1369, 64 USPQ2d
1650, 1655 (Fed. Cir. 2002); Exxon Corp. v. Texas Motor Exchange, Inc., 628 F.2d 500,
208 USPQ 384, 389 (5th Cir. 1980) (“The best evidence of likelihood of confusion is
provided by evidence of actual confusion”). Even a single instance of actual confusion
is at least “illustrative of a situation showing how and why confusion is likely.”

34 46 TTABVUE 29-30; Exhibit 11.
Opposition No. 91209598
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Molenaar, Inc. v. Happy Toys Inc., 188 USPQ 469, 471 (TTAB 1975) (citing Libbey-
Owens-Ford Glass Co. v. Thermoproof Glass Co., 156 USPQ 510, 511 (CCPA, 1968)).
Given Opposer’s testimony and evidence regarding a specific instance of actual
confusion, this du Pont factor favors Opposer.
VI. Conclusion
The parties’ marks are similar in appearance, pronunciation, connotation and
overall commercial impression. The goods and services are highly related, and are
offered through similar trade channels to the same consumers. There has been at
least one instance of actual confusion by a coordinator of a trade show that both
parties sought to attend. Opposer has shown that he used his mark MODERN BRICK
WARFARE in connection with his retail store services before Applicant used his mark
BRICK WARFARE LLC in connection with toy weapons. On balance, we find the du
Pont factors weigh in favor of finding a likelihood of confusion.
Decision: The opposition is sustained pursuant to Trademark Act Section 2(d),
and registration to Applicant is refused.