Precious Marketing Group, LLCv.Tashay T. Dennie

Trademark Trial and Appeal Board

Mar 27, 2012

No. 91195989 (T.T.A.B. Mar. 27, 2012)

Mailed:
March 27, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Precious Marketing Group, LLC

v.

Tashay T. Dennie
_____

Opposition No. 91195989
to application Serial No. 77642498
filed on January 2, 2009
_____

George Higginbotham of Higginbotham Law for Precious
Marketing Group, LLC.

Tashay T. Dennie pro se.
______

Before Bergsman, Wolfson and Kuczma,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On January 2, 2009, Tashay T. Dennie (applicant) filed
an intent-to-use application to register the mark HipRoc, in
standard character form, for a wide variety of clothing
items in Class 25.
Precious Marketing Group, LLC (opposer) filed an
opposition to the registration of applicant’s mark under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§1052(d), on the ground of priority of use and likelihood of
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91195989
2
confusion.1 Opposer is the owner of application Serial No.
77761451 for the mark HIP ROCK and design and Serial No.
77761477 for the mark HIP ROCK AUTHORITY and design both for
a wide variety of clothing products. Action on opposer’s
applications has been suspended pending the disposition of
applicant’s application. Opposer’s notice of opposition is
akin to a response to a likelihood of confusion refusal by
an examining attorney.
Opposer alleges that since January 2008, it has been
using the marks HIP ROCK and HIP ROCK AUTHORITY for a
complete line of clothing products. However, instead of
alleging that applicant’s mark, when used in connection with
clothing so resembles opposer’s marks HIP ROCK and HIP ROCK
AUTHORITY for clothing as to be likely to cause confusion,
opposer alleges that there would be no likelihood of
confusion. In essence, opposer is seeking a declaratory
judgment that there is no likelihood of confusion. However,
the Trademark Trial and Appeal Board is an administrative
tribunal, established by statute for narrow and specific
purposes, and is not a court of general jurisdiction. Cf.
Trademark Act §§17, 18, 20, 24. To that end, the Board will
not consider claims that are not specifically grounded in
statute, regardless of whether “damage” could be shown. See
e.g., Kelly Services Inc. v. Greene's Temporaries Inc., 25

1 See the ESTTA cover sheet.
Opposition No. 91195989
3
USPQ2d 1460, 1464 (TTAB 1992) (Board may not entertain a
claim for declaratory judgment). Accordingly, we construe
opposer’s pleading as a hypothetical claim of likelihood of
confusion (i.e., although opposer does not believe that
there is a likelihood of confusion, if the Board finds that
there is a likelihood of confusion, opposer has priority and
the opposition should be sustained).
Applicant essentially denied the allegations in the
notice of opposition, including that there would not be a
likelihood of confusion (i.e., applicant alleged that there
would be a likelihood of confusion).
Opposer’s testimony period was scheduled to open on
June 16, 2011 and to close on July 16, 2011.2
On July 27, 2011, opposer filed a motion for summary
judgment and accelerated case resolution. In an order dated
September 22, 2011, the Board denied opposer’s motion for
summary judgment on the ground that it was untimely filed.
Trademark Rule 2.127(e)(1) (“A motion for summary judgment,
if filed, should be filed prior to the commencement of the
first testimony period … and the Board, in its discretion,
may deny as untimely any motion for summary judgment filed
thereafter.”).
The Board denied the motion for accelerated case
resolution because applicant did not agree to accelerated

2 August 10, 2010 trial order.
Opposition No. 91195989
4
case resolution. See TBMP § 704.04(a) (accelerated case
resolution may be implemented only by consent of the parties
and agreement by a Board attorney or judge).
Neither party introduced any testimony or evidence.
Opposer filed a brief entitled “Applicant’s Brief.” As
with its notice of opposition, opposer’s brief was more akin
to a response to a likelihood of confusion refusal than a
brief in an opposition. Applicant did not file a brief.
Standing and priority are elements of opposer’s case.
Because opposer did not introduce any testimony or evidence,
opposer did not prove its standing or its priority of use of
its alleged marks. Judgment is entered against opposer.
Decision: The opposition is dismissed with prejudice.