Mega RV Corpv.Mike Thompson Recreational Vehicle

Trademark Trial and Appeal Board

Jun 3, 2014

No. 91206417 (T.T.A.B. Jun. 3, 2014)

Mailed: June 3, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Mega RV Corp

v.

Mike Thompson Recreational Vehicle
_____

Opposition No. 91206417
to Application Serial No. 85508573
_____

Adam K. Obeid, Esq. for Mega RV Corp.

Kit M. Stetina of Stetina, Brunda, Garred & Brucker for Mike
Thompson Recreation Vehicle.
______

Before Mermelstein, Wellington, and Gorowitz,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Mike Thompson Recreation Vehicle (hereinafter
“Applicant”), a California corporation, filed an intent-to-
use Application to register TRAVELAND USA (in standard
characters) for “recreational vehicle dealerships” in
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91206417
2
International Class 35 and “recreational vehicle repair
services” in International Class 37.1
Registration has been opposed by Mega RV Corp
(hereinafter “Opposer”) on the ground of priority and
likelihood of confusion.2 Opposer also alleges that
Applicant did not possess a bona fide intent to use the mark
in commerce at the time of filing the Application and that
the Application is otherwise void ab initio because
Applicant was aware of at least one other entity which was
entitled to use the applied-for mark in connection with
recreational vehicle services. In particular, Opposer
alleges, inter alia, that Opposer “can trace assignment and
ownership of the trade name ‘Traveland USA’ from the present
date back to 1973”; that “[d]espite knowing full well that
the trade name Traveland USA has been in continued use since
1973, and that use of the name can be traced from [other
entities] to Mega RV Corp, [Applicant] has purposefully and
shamelessly attempted to register use of the name to
itself”; that Applicant “submitted a knowingly false
application for registration”; that “[Applicant’s] use of

1 Serial No. 85508573 filed on January 4, 2012, based on a bona
fide intent to use the mark in commerce under Trademark Act
Section 1(b), 15 U.S.C. § 1051(b). USA has been disclaimed.

2 Opposer attached materials to the Notice of Opposition. To the
extent any of these materials were not properly introduced as
evidence, they are not of record and cannot be considered in this
decision. Trademark Rule 2.122(c).
Opposition No. 91206417
3
the trade name ‘Traveland USA’ and any attempt by
[Applicant] to utilize same would cause confusion and would
damage [Opposer].”
By way of the Answer, Applicant denied the salient
allegations comprising the grounds set forth in the Notice
of Opposition.
The parties have filed trial briefs, including a reply
brief from Opposer.
Evidentiary Objections
Applicant raised several evidentiary objections in its
trial brief. Opposer did not address these objections in
its reply brief.
Applicant first objects to Opposer’s attempt to
introduce a copy of its California “Certificate of
Registration of Service Mark,” that was submitted with
Opposer’s “Request for Judicial Notice.”3 Applicant argues
this document should have been produced earlier in response
to Applicant’s discovery requests and, on this basis,
Opposer should be precluded from relying on it.4 In
essence, Applicant’s objection is a motion for estoppel.
See Panda Travel, Inc. v. Resort Option Enterprises, Inc.,

3 Opposer’s “Request for Judicial Notice” was filed on December
23, 2013, TTABVUE Docket entry no. 21.
4 Applicant cites to “TMBP Rule 527.01(e)” as the basis for this
objection. The Trademark Board Manual of Procedure (“TBMP”)
provides guidance to practitioners, including references to case

Opposition No. 91206417
4
94 USPQ2d 1789, 1792-93 (TTAB 2009) (documents not produced
until after the start of trial stricken). Because Opposer
has not responded to this objection, the circumstances as
described by Applicant are uncontroverted. Accordingly, the
objection is sustained and the California Certificate of
Registration of Service Mark is not of record. Midwestern
Pet Foods Inc. v. Societe des Produits Nestle S.A., 685 F.3d
1046, 103 USPQ2d 1435, 1439 (Fed. Cir. 2012) (application of
the preclusion sanction, lies within the Board’s
discretion); Trademark Rule 2.127(a) (unopposed motion may
be granted as conceded).
Applicant also objected to Opposer’s request for the
Board to take judicial notice of Opposer’s California
Registration, the Articles of Incorporation for the
Traveland Merchants Association (TLMA) and a Certificate of
Amendment. Inasmuch as Opposer did not respond to this
objection or otherwise explain why the Board should take
judicial notice of these materials, we decline to do so in
this instance. We also note the timing of Opposer’s
judicial notice request and, to the extent that Opposer
intended its request for “judicial notice” to be a Notice of
Reliance, it was untimely because it was filed well outside
Opposer’s testimony period. Trademark Rule 2.122(e).

law, statutes and other authority. However, the sections of the
TBMP, such as the one alluded to by Applicant, are not “rules.”
Opposition No. 91206417
5
Further, Applicant objected to news articles attached
as exhibits to the deposition of Brent McMahon on the basis
that they constitute hearsay. This objection is overruled.
News articles may not be relied on for truth of the
statements contained therein; however, they are not entirely
disregarded or without probative value because they may be
used as evidence for what they show on their face.
Applicant also asserted hearsay and foundation
objections to the testimony of David Farwell. The Board has
only considered non-hearsay statements and testimony where
it has been demonstrated that Mr. Farwell’s testimony is
based on his personal knowledge of the subject matter.
Finally, Applicant raises objections to “attorney argument
devoid of any supporting evidence.” Brief, p. 41. The
Board is able to decipher what arguments, made by either
counsel, are supported by the evidence as opposed to those
that lack proof.
In sum, the materials submitted with Opposer’s “Request
for Judicial Notice” have not been considered. We decline
to strike any testimony or trial testimony exhibits;
however, we do not rely on testimony or evidence
constituting improper hearsay or where a foundation for that
testimony has not been established.
Opposition No. 91206417
6
The Record
The evidence of record includes the parties’ pleadings,
and the file of Applicant’s involved Application. Trademark
Rule 2.122(b), 37 C.F.R. § 2.122(b).
Opposer submitted the testimony depositions, with
exhibits, of David Farwell, Paul Schilperoort, Brent
McMahon, Edward S. Banas, and Peter Changala.
Applicant submitted the testimony depositions, with
exhibits, of Richard Shinn, Michael Irick, and Frank
Degelas. In addition, Applicant submitted, under Notice of
Reliance, copies of Opposer’s Responses to Admission
Requests and Interrogatories as well as a discovery
deposition transcript, with exhibits, of Mr. Shinn.5
Background
In approximately 1973, The Irvine Company leased real
property located at Burt Road in Irvine, California
(hereinafter “Irvine” location) to Edker and Blanche Pope,
husband and wife. Mr. and Mrs. Pope proceeded to develop
the property as a location for recreational vehicle (RV)

5 With few exceptions, a discovery deposition may not be offered
in evidence. Trademark Rule 2.120(j)(2). Applicant filed a
paper on September 18, 2013, asserting that Opposer consented to
use of the Shinn discovery deposition “for any purpose in the
proceeding.” Opposer did not object to Applicant’s allegation of
consent or its introduction of this deposition by Notice of
Reliance. In view thereof, the deposition is considered of
record. The better practice in this situation is to file a
stipulated agreement that is signed by both parties when it
involves a deviation from the Board’s rules regarding the

Opposition No. 91206417
7
sales and service entities to conduct their business and
thus divided the land into approximately 60 lots. They
subleased these lots to companies involved in the RV
industry. “Traveland USA,” as the property became known,
offered an opportunity for consumers to shop at a single
location for RVs, as well as RV-related goods and services,
from an assortment of companies. Throughout the years, the
underlying lease for the property with The Irvine Company
was held by different persons or entities. Between
approximately 2006 through September 30, 2011, The Irvine
Company leased the Traveland USA Irvine property to
Traveland USA, LLC which in turn subleased the lots to
various RV-related companies conducting business on the
Irvine property.
Opposer and Applicant are competitors in the retail RV
sales and service industry. At various times and for
varying lengths of time, Applicant and Opposer (also doing
business as “McMahon’s RV”) were two of the tenants at the
Traveland USA location in Irvine. Specifically, Applicant
was a tenant RV dealer at Traveland USA from approximately
1981 until 1994 (Degelas 11:7-9). Opposer was a tenant at
least as early as 1989 and remained at the Traveland USA
Irvine location at least until March 15, 2012.

introduction of evidence. See TBMP Sections 501.03 (form of
stipulations) and 705 (stipulated evidence).
Opposition No. 91206417
8
In addition to and apart from Traveland USA, LLC, there
existed a California non-profit mutual benefit corporation
called Traveland Merchants Association (TLMA). TLMA’s
members comprised RV companies operating on the premises as
well as the holder (or assignee) of the ground lease with
The Irvine Company. Traveland USA, LLC, as holder of the
ground lease, was a member between 2006 to September 30,
2011. By its own bylaws, TLMA was inextricably linked to
the leases – Article I, Section 2 (“Association in Leases”)
states that TLMA is “the association referred to in
provisions of the leases between [landlord, holder of ground
lease], and the tenants of Traveland U.S.A.” McMahon Dep.
Exh. 19. The bylaws also provide that one of TLMA’s
“purposes” was to “initiate and execute to their fullest,
advertising, promotional, and publicity programs and
activities that shall promote the common interests and
welfare of the commercial enterprises located in Traveland.”
Section 3(a) of bylaws, McMahon Dep. Exh. 19. TLMA’s powers
included the ability to “contract, manage, control and pay
for such advertising and marketing as it deems appropriate
to promote, foster, improve and maximize the businesses of
the members conducted at Traveland. Article III, Section
1(j) of bylaws, McMahon Dep. Exh. 19.
Opposer argues that it is the rightful owner of the
mark TRAVELAND USA by virtue of it being the last in a chain
Opposition No. 91206417
9
of title of assignments of the mark. Opposer primarily
relies on a December 1, 2011 assignment of the mark from
TLMA to Opposer (Schilperoort Dep. Exh. 3). Opposer argues
that it thereafter owned and controlled use of the TRAVELAND
USA mark at the Irvine location until approximately April
2012, when Opposer moved to a new business location in
Westminster, California.
Applicant, on the other hand, asserts that the
assignment from TLMA to Opposer was invalid for several
reasons, including it not being in compliance with various
provisions of TLMA’s bylaws. Applicant also asserts that
Opposer otherwise “has no independent claim of priority
based on its own use of [the mark].” Brief, p. 20.
The following relevant activities and facts are
established by the evidence:
• On or before December 13, 2011, Traveland, LLC USA
ceased operations on “Traveland USA” Irvine location
property (Shinn 44:18-19, 54:17-18);

• On or about December 13, 2011, Opposer negotiated
directly with The Irvine Company to remain on the
Irvine location “month-to-month” and pay rent directly
to The Irvine Company (Schilperoort 19:13-15, 26:15-
22);

• After approximately December 13, 2011, Opposer “took
over responsibilities for the [TLMA]” (McMahon 29:19-
22; 196:10 “[W]e were doing the advertising ourselves”)
(Schilperoort 23:11-14 “after Traveland [USA] LLC was
evicted from the property, ...[Opposer] picked up the
expenses of the utilities and the staff and the
property upkeep for those last few months”);

Opposition No. 91206417
10
• After December 13, 2011, Opposer continued to conduct
business at the Irvine location and the property
continued to be advertised as TRAVELAND USA by signage
on the property and visible outside the property
(Schilperoort 15:8-16);

• After December 13, 2011, Opposer advertised as
“TRAVELAND USA sponsored by McMahon’s RV” on banners
and signs (Schilperoort 15:21-22);

• In 2011, Opposer “spent approximately $ 150,000 in
print and media advertisements that “directly promoted
‘Traveland USA’ at [the Irvine location]” (Opposer’s
response to Supp. Interrog. Response No. 8);

• In “late March, early April” 2012, Opposer moved from
Irvine to 5300 Garden Grove Boulevard, Westminster,
California (McMahon 39:16-17);

• Opposer uses the TRAVELAND USA mark at its new location
in Westminster(Degelas 121:15-7, 122:12-14);

• Opposer “immediately” advertised the name TRAVELAND USA
at its Westminster location (McMahon 41:19);

• Opposer is currently in the process of developing its
Westminster property to be a collective RV mall with a
design that will be “very similar to Traveland (Irvine
location)” (Schilperoort 39:23-40:25);

• Opposer has advertised as “McMahon’s Traveland USA” at
its Westminster location since at least as early as
March 15, 2012 (Schilperoort 42:1-3); and

• Opposer is in “discussions” with other RV dealers for
them to join Opposer and move into space at Opposer’s
new Westminster location (McMahon 41:1-10).

Standing
Standing is a relatively low threshold requirement, and
it is generally sufficient in a Board proceeding that the
plaintiff establish that it is not a “mere intermeddler.”
Herbko Int'l Inc. v. Kappa Books Inc., 64 USPQ2d 1375, 1378
Opposition No. 91206417
11
(Fed. Cir. 2002). A plaintiff in a Board proceeding need
not show that it will prevail on the merits before we find
that it has sufficient interest in the proceeding. To the
contrary, standing requires only that the Opposer have a
“real interest” in the opposition proceeding. Int'l Order
of Job's Daughters v. Lindeburg & Co., 727 F.2d 1087, 1092,
220 USPQ 1017, 1020 (Fed. Cir. 1984). In most settings, a
direct commercial interest satisfies the “real interest”
test. Cunningham v. Laser Golf Corp., 222 F.3d 943, 945, 55
USPQ2d 1842, 1844 (Fed. Cir. 2000).
We find that Opposer has shown that it has a real
interest in this proceeding. At the very least, it has been
shown that Opposer is an RV dealership, a competitor of
Applicant, and asserts rights in the same trademark as
applied for by Applicant.
Having found that Opposer has standing, we turn now to
the merits of its claim of priority and likelihood of
confusion.
Priority
“To establish priority, [Opposer] must show proprietary
rights in the mark that produces a likelihood of
confusion.... These proprietary rights may arise from ...
prior trademark or service mark use, prior use as a trade
name, prior use analogous to trademark or service mark use,
or any other use sufficient to establish proprietary
Opposition No. 91206417
12
rights.” Herbko Int'l., Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002) (internal
citations omitted); Otto Roth & Co. v. Universal Foods
Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981). Inasmuch
as Applicant has not established use of the TRAVELAND USA
mark in connection with the recited services prior to the
filing date of its intent-to-use Application, the earliest
date upon which Applicant may rely for priority purposes is
January 4, 2012, which is its constructive use date.
Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112,
1119 (TTAB 2009) (“applicant may rely without further proof
upon the filing date of its application as a ‘constructive
use’ date for purposes of priority.”). Thus, Opposer must
establish proprietary rights in its mark TRAVELAND USA prior
to January 4, 2012.
Based on the entire record before us, with an emphasis
on the factual circumstances outlined above, we find that
Opposer has established common-law rights in the mark
TRAVELAND USA at least as early as December 15, 2011. We
make this determination irrespective of the assignment
history, without a determination of the validity of the
December 1, 2011 assignment of the mark from TLMA to
Opposer. In other words, even if we were to agree with
Applicant that the assignment was not in compliance with
TLMA’s bylaws and thus invalid, we find that Opposer
Opposition No. 91206417
13
acquired rights because there is no evidence that any other
party had rights in the mark as of December 15, 2011 and
Opposer’s own use started at least as early as that date.
As of December 15, 2011, Opposer was conducting its RV
sales and service business at the Irvine location under the
banner and signage of TRAVELAND USA. More importantly, at
this point Opposer financially and physically maintained the
upkeep of the Irvine property, including exerting control
over the TRAVELAND USA advertising. In 2011 alone, Opposer
spent a considerable amount of money directly promoting the
same TRAVELAND USA mark in print and other media, including
banners and signs bearing the message “TRAVELAND USA
sponsored by McMahon’s RV.” Opposer’s actions continued at
the Irvine location at least through March 15, 2012, when
Opposer moved to its current Westminster location and
“immediately” commenced use of the mark TRAVELAND USA at
that location.
One of Applicant’s arguments that Opposer could not
have independently acquired rights in the TRAVELAND USA mark
is that any use by Opposer inured to the benefit of TLMA or
Traveland, LLC.6 However, the record reflects that the

6 Applicant does not argue that it has any connection with TLMA,
Traveland, LLC, or The Irvine Company, other than Applicant once
had a dealership at the Irvine location but this ended in 1994.
To the extent that Applicant is arguing that a third-party, such
as TLMA or Traveland, LLC, has prior rights in the contested
mark, this appears to contradict Applicant’s assertion in its own

Opposition No. 91206417
14
latter company’s lease with the Irvine Company expired in
September 2011 and we find no credible evidence that
Traveland, LLC acquired and continued to exercise rights in
the mark after December 15, 2011. With regard to TLMA, its
very existence was contingent on its leases with whomever
held the ground lease with The Irvine Company. Again, its
own bylaws describe it as an “association of leases,”
meaning the subleases it held with the holder of the ground
lease. Thus, when Traveland, LLC was no longer leasing
spaces to TLMA members, the association was essentially
dissolved. In any event, TLMA was functionally irrelevant
after December 15, 2011 in view of the fact that Opposer
performed the essential duties as of that date. There is no
indication that the TLMA continued to exist after that date
or that it has an interest in maintaining rights in the
mark.7 In arguing that the TLMA assignment to Opposer was
invalid, Applicant itself seems to acknowledge this much
(“the TLMA was suspended and at worst effectively dissolved
prior to December 1, 2011,” Brief, p. 14).

Application that “to the best of [its] knowledge ... no other
person, firm, corporation, or association has the right to use
the mark in commerce.”
7 We need not determine the rights, if any, of TLMA or Traveland,
LLC (if they still exist) or their successors in the TRAVELAND
mark. It is sufficient to find that Opposer has established its
independent use of TRAVELAND as a trademark prior to the earliest
date upon which Applicant can rely for priority.
Opposition No. 91206417
15
In sum, it has been demonstrated that by December 15,
2011, Opposer was controlling use of the mark, and
activities undertaken by Opposer with respect to the mark
were done for its own benefit and with the intention of
establishing or maintaining proprietary rights in the mark.
Applicant also characterizes Opposer’s stay on the
Irvine property from December 15, 2011 through March 2012 as
constituting a “deception of the public” because “[the mark]
was allegedly so closely associated with an RV super mall in
Irvine, Opposer’s use of [TRAVELAND USA] to promote what
amounted to a single dealership winding up its affairs at
that location was a significant and material change in the
nature of the goodwill purportedly symbolized by ‘Traveland
USA’.” Brief, p. 24.
There is no dispute that, other than Opposer, there
were few other RV-related, commercial entities operating at
the Irvine property between December 2011 and April 2012.
It has also been established through the testimony of
several witnesses that business and the physical state of
the Traveland USA property at Irvine declined over several
years prior to April 2012.
A downturn in business and the number of RV-related
businesses located at the Irvine property in late 2011 and
early 2012 did not negate Opposer’s ability to acquire
rights in the mark through its own use of TRAVELAND USA. In
Opposition No. 91206417
16
other words, although the property and shopping experience
may have undergone significant changes, the fact remains
that Opposer was using the mark TRAVELAND USA in connection
with its RV sales and services. We disagree with
Applicant’s contention that Opposer’s use was tantamount to
“deception on the public” or that Opposer’s use was somehow
improper for the purpose of negating its acquisition of
trademark rights.8 We are aware of nothing that would
prevent the owner of a trademark from offering different or
new services under an established mark, so long as the mark
continues to serve as an indication of source.
In sum, Opposer acquired rights in the mark TRAVELAND
USA in connection with RV sales and services as early as
December 15, 2011, and has continued its use of this mark.
Because this use precedes the date that Applicant relies
upon, we find that Opposer has established priority.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set forth
in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also In re Majestic Distilling

8 Applicant cited 15 U.S.C. § 1055, which involves use of a
registered mark by related companies. We find this statute
inapplicable to Opposer’s acquisition, on its own, of trademark
rights and the circumstances of this proceeding.
Opposition No. 91206417
17
Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
We initially note that Opposer and Applicant have not
actually addressed the du Pont factors. Nevertheless,
inasmuch Opposer has established prior rights in a mark
identical to that applied for by Applicant and in connection
with identical or closely related RV sales services, we have
no trouble coming to the conclusion that there is a
likelihood of confusion. Moreover, the record clearly shows
that the two parties are competitors in the RV sales and
services sector. Their services are advertised in the same
trade channels and target the same classes of consumers,
i.e., those shopping for RVs or in need of RV-related
service.
Based on the entire record and careful consideration of
the parties’ arguments, there is no doubt that a likelihood
of confusion exists should both parties engage in the
contemporaneous use of the same mark, TRAVELAND USA, in
Opposition No. 91206417
18
connection with RV sales and services, including those
identified in the subject Application.9
Decision: The Opposition is sustained on the ground of
priority and likelihood of confusion and Applicant’s
Application will be abandoned in due course.

9 Because we find in favor of Opposer on the ground of priority
and likelihood of confusion, we need not reach Opposer’s
allegations that Applicant lacked a bona fide intent to use the
mark in commerce and that Applicant was aware that at least one
other entity was entitled to use the applied-for mark when it
filed the Application.