Michael D. Young, d/b/a Locksmith Centralv.Locksmith Central, Inc.

Trademark Trial and Appeal Board

Oct 26, 2011

No. 91192742 (T.T.A.B. Oct. 26, 2011)

Mailed: October 26, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Michael D. Young, d/b/a Locksmith Central
v.
Locksmith Central, Inc.
_____

Opposition No. 91192742
to application Serial No. 77468783
filed on May 8, 2008
_____

Michael D. Young, pro se.

Michael D. Mahon for Locksmith Central, Inc.

______

Before Quinn, Taylor and Lykos, Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:

On June 8, 2008, Locksmith Central, Inc. (“applicant”)
filed an application to register the mark LOCKSMITH CENTRAL in
standard character format, for “locksmithing, namely, opening of
locks” in International Class 45.1
Michael D. Young, d/b/a Locksmith Central (“opposer”)
opposed the registration of applicant's mark on the grounds of

1 Application Serial No. 77468783, alleging January 1, 1996 as
the date of first use anywhere and in commerce. The word
“LOCKSMITH” has been disclaimed.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91192742
2
(1) priority of use and likelihood of confusion under Section
2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), with
opposer’s previously used LOCKSMITH CENTRAL and
LocksmithCentral.net marks; (2) mere descriptiveness pursuant to
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1),;
and (3) genericness pursuant to Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1).2 Applicant, in its answer, denied
the salient allegations in the notice of opposition.
I. Evidentiary Issues
Opposer, during his assigned testimony period which closed
on October 25, 2010, did not submit any evidence. Rather than
moving for involuntary dismissal under Trademark Rule 2.132(a),
applicant, on the last day of its testimony period, filed a
declaration executed by Robert E. Bradley, “owner and operator”
of applicant, with exhibits attached thereto (“Bradley
Declaration”). On January 10, 2010, opposer filed an objection
to the Bradley Declaration on several grounds, including that
“the declaration is not testimony under the rules of this
tribunal.” Opposer then filed “rebuttal testimony” on February

2 We note that opposer, on the ESTTA form [the ESTTA form is not a
cover sheet but rather a part of the notice of opposition], checked
off the box denoting “Section 2(a)” without making further allegations
regarding this claim in the attached pleading. Merely checking off
the ESTTA box for “Section 1(a)” does not constitute a proper pleading
of a claim against an application based on Section 1(a), absent
further allegations relating to the claim in the notice of opposition.
Cf. Melwani v. Allegiance Corp., 97 USPQ2d 1537 (TTAB 2010).

Opposition No. 91192742
3
2, 2011, which consisted of a declaration executed by opposer.
In addition, opposer submitted copies of the interrogatories
propounded by opposer during discovery and applicant’s answers
thereto. Opposer filed his main brief on March 4, 2011.
Applicant did not file a brief on the case.
First, we will consider opposer’s objection to the Bradley
declaration. Absent a stipulation or motion approved by the
Board, a party may not submit evidence during its testimony
period by way of declaration; rather such evidence must be
submitted by testimony deposition. Trademark Rule 2.123(b).
See Tri-Star Marketing LLC v. Nino Franco Spumanti S.R.L., 84
USPQ2d 1912, 1914 (TTAB 2007) (declaration cannot be submitted
in lieu of testimony deposition absent a stipulation of the
parties). As such, opposer’s objection is sustained.
Turning now to opposer’s submissions during his rebuttal
testimony period, we note that opposer’s declaration is improper
for the same reasons explained above. In addition, opposer’s
interrogatories and answers thereto were improperly introduced.
Interrogatories and answers thereto may be made of record by
notice of reliance or by way of a testimony deposition. See
Trademark Rule 2.120(j)(3). In addition, opposer’s submissions
constitute improper rebuttal. During a plaintiff's rebuttal
testimony period, the plaintiff may introduce evidence and
testimony to deny, explain, or discredit facts and witnesses
Opposition No. 91192742
4
adduced by the defendant. Evidence is improper rebuttal,
however, where it does not serve to do the above, but rather
where it relates to a witness and facts that might appropriately
have been introduced during the party's case-in-chief. Western
Leather Goods Co. v. Blue Bell, Inc., 178 USPQ 382 (TTAB 1973).
In this case, the interrogatory answers and portions of the
declaration relate to the issue of priority. As such, this
evidence should have been made of record during opposer's case-
in-chief. We therefore have given no consideration to opposer’s
evidence submitted during his rebuttal testimony period.
II. The Record
In view of our evidentiary rulings, the record consists
solely of the pleadings and applicant's application file. See
Trademark Rule 2.122(b).
III. Standing
Standing is a threshold issue that must be proven in every
inter partes case. See Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982) (“The
facts regarding standing … must be affirmatively proved.
Accordingly, [plaintiff] is not entitled to standing solely
because of the allegations in its [pleading].”). To establish
standing in an opposition, an opposer must show that it has a
“real interest” in the outcome of the proceeding; that is, that
it has a direct and personal stake in the outcome of the
Opposition No. 91192742
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opposition. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023 (Fed. Cir. 1999); Jewelers Vigilance Committee, Inc. v.
Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021 (Fed. Cir. 1987).
In the notice of opposition, opposer adequately asserted
his standing by claiming prior common law rights in his
LOCKSMITH CENTRAL and LocksmithCentral.net marks. Thus, the
only question is whether opposer has proven his standing.
As noted above, opposer has not introduced any admissible
evidence regarding his asserted prior use of his pleaded marks.
As such, opposer has not introduced any evidence of his standing
to bring this proceeding.
In the alternative, we may look to the admissions in
applicant's answer for this purpose. However, as noted above,
in its answer applicant denied all of the salient allegations of
the notice of opposition. Thus, there are no admissions in
applicant's answer regarding opposer's standing.
Opposer, as the plaintiff in this proceeding, has the
burden of proof to establish, by a preponderance of the
evidence, that it has standing and a ground upon which relief
may be granted. Opposer’s failure to prove his standing is a
sufficient basis, by itself, to dismiss the proceeding.
DECISION: Accordingly, the opposition is dismissed.