STX Financing, LLCv.Stacey Michelle Terrazas

Trademark Trial and Appeal Board

Sep 22, 2021

91240829 (T.T.A.B. Sep. 22, 2021)

This Opinion is Not a
Precedent of the TTAB

Hearing: June 2, 2021 Mailed: September 22, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

STX Financing, LLC

v.

Stacey Michelle Terrazas
_____

Opposition No. 91240829
_____

Jill M. Pietrini and Paul A. Bost of Sheppard Mullin Richter & Hampton LLP
for STX Financing, LLC.
Edd Vasquez for Stacey Michelle Terrazas.
_____

Before Taylor, Larkin, and Coggins,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Stacey Michelle Terrazas (“Applicant”) seeks registration on the Principal
Register of the standard character mark BAD MOMS UNLIMITED (MOMS
disclaimed) for the following goods:
Audio books in the field of parenting, self-help, careers and
education; Decorative magnets; Downloadable mobile
applications for social networking, resource and
information on parenting, self-help, careers and education;
E-books featuring information on parenting, self-help,
careers and education recorded on computer media;
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Prerecorded audio tapes featuring information on
parenting, self-help, careers and education; Prerecorded
digital audio tape featuring information on parenting, self-
help, careers and education; Sunglasses; Visual and audio
recordings featuring information on parenting, self-help,
careers and education, in International Class 9;
Adhesive-backed cast PVC film for wrapping commercial
vehicles for advertising or other promotional purposes;
Adhesive labels; Art pictures; Binders; Booklets in the field
of parenting, self-help, careers and education; Brochures
about parenting, self-help, careers and education; Bumper
stickers; Business cards; Calendars; Canvas for painting;
Canvas for printing; Catalogs in the field of parenting, self-
help, careers and education; Greeting cards; Letterhead
paper; Magazines in the field of parenting, self-help,
careers and education; Manuals in the field of instructional
information on parenting, self-help, careers and education;
Memory books; Newsletters about parenting, self-help,
careers and education; Note books; Note cards; Pamphlets
in the field of parenting, self-help, careers and education;
Paper banners; Paper labels; Paper for wrapping and
packaging; Picture books; Post cards; Posters; Printed
invitations; Printed paper signs; Prints; Song books;
Stationery; Stickers; Story books; Art prints; Cardboard
boxes; Gift bags; Gift boxes; Graphic art prints;
Informational flyers featuring information on parenting,
self-help, careers and education; Merchandise bags; Paper
bags; Paper boxes; Photo storage boxes, in International
Class 16; and
Aprons; Baby bibs not of paper; Caps being headwear;
Costumes for use in role-playing games; Coverups;
Dresses; Halloween costumes; Hats; Head wear;
Headbands; Hoodies; Infant and toddler one piece clothing;
Jackets; Jumpsuits; Leg-warmers; Leggings; Lingerie;
Pajamas; Pants; Ponchos; Robes; Rompers; Scarves; Shirts;
Shoes; Shorts; Skirts; Slippers; Socks; Sweatpants;
Sweatshirts; Swimwear; T-shirts; Ties as clothing;
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Underwear; Uniforms; Visors being headwear; Wristbands
as clothing; Clothing wraps, in International Class 25.1
Applicant also seeks registration on the Principal Register of the standard
character mark BAD MOMS BIBLE (MOMS disclaimed) for the following services:
Charitable foundation services, namely, providing
financial assistance for programs and services of others;
Charitable foundation services, namely, providing
financial support to mothers in need for payment of
educational costs, pregnancy and prenatal costs, childcare
costs, utility bills and obtaining medications; Charitable
fundraising services; Charitable fundraising services by
means of a website where donors search for and make
monetary donations to specific charities or projects aimed
at helping mothers in need; Charitable fundraising
services by means of selling goods to raise funds, in
International Class 36.2
STX Financing, LLC (“Opposer” or “STX”) opposes the ’487 and ’298 Applications
on the grounds that the marks BAD MOMS UNLIMITED and BAD MOMS BIBLE
so resemble Opposer’s alleged registered and common-law mark BAD MOMS as to be
likely, when used in connection with the goods and services identified in the
applications, to cause confusion, to cause mistake, or to deceive, and are likely to
dilute the BAD MOMS mark by blurring. Opposer opposes the ’487 Application on
the additional ground that Applicant lacked a bona fide intention to use the mark in

1 Application Serial No. 87547487 (the “’487 Application”) was filed on July 28, 2017, under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a
bona fide intention to use the mark in commerce.
2 Application Serial No. 87547298 (the “’298 Application”) was also filed on July 28, 2017,
under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation
of a bona fide intention to use the mark in commerce.
Opposition No. 91240829
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commerce in connection with all goods identified in the application except for
calendars and notebooks in Class 16 and shirts and T-shirts in Class 25.3
The case is fully briefed,4 and counsel for Opposer appeared at a video hearing
before the panel on June 2, 2021.5 With respect to the ’487 Application, we sustain
the opposition as to Class 25 on the basis of Opposer’s Section 2(d) claim, and we
sustain the opposition as to all goods in Class 9, and as to all goods in Class 16 other
than calendars and note books, on the basis of Opposer’s claim of a lack of a bona fide
intention to use. We dismiss the opposition as to the ’298 Application.
I. The Record and Evidentiary Objections
A. The Record
The immense record was made almost entirely by Opposer and contains more than
3,000 pages of testimony and documentary evidence. It consists of the pleadings,6 the

3 Opposer’s First Amended Consolidated Notice of Opposition (9 TTABVUE 21-28).
4 Citations in this opinion to the briefs and other docket entries refer to TTABVUE, the
Board’s online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB
2014). Specifically, the number preceding TTABVUE corresponds to the docket entry
number, and any numbers following TTABVUE refer to the page(s) of the docket entry where
the cited materials appear. Opposer’s main brief appears at 48 TTABVUE and its reply brief
appears at 53 TTABVUE. Applicant’s brief appears at 49 TTABVUE.
5 Counsel for Applicant advised the Board that he did not intend to be present at the hearing.
61 TTABVUE 2.
6 The operative pleadings are Opposer’s First Amended Consolidated Notice of Opposition, 9
TTABVUE 21-28, and Applicant’s Answer to Amended Consolidated Notice of Opposition. 14
TTABVUE 2-7. Applicant denied the salient allegations of Opposer’s First Amended
Consolidated Notice of Opposition, and interposed two self-styled Affirmative Defenses
stating that one or more claims in the First Amended Consolidated Notice of Opposition fail
to state a claim upon which relief can be granted, and purporting to reserve the right to
amend the Answer to assert additional defenses. Neither of these purported Affirmative
Defenses are valid defenses. See U.S. Olympic Comm. v. Tempting Brands Neth. B.V., 2021
USPQ2d 164, at *4 (TTAB 2021) (failure to state a claim); Philanthropist.com, Inc. v. Gen.
Opposition No. 91240829
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file histories of the two opposed applications, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following materials submitted by the
parties:
1. Opposer’s Submissions
Opposer’s Notice of Reliance covering Exhibits 1-35 (24
TTABVUE 2-291);7
The Testimony Declaration of Rachel Kimbrough,
Opposer’s Executive Vice President of Business and Legal
Affairs and Corporate Counsel, and Exhibits 35-42 thereto
(26 TTABVUE 2-573);8
The Testimony Declaration of Eddie Egan, a marketing
consultant, and previously Opposer’s President of
Domestic Marketing and Head of Domestic Marketing, and
Exhibits 43-60 thereto (28-31 TTABVUE);9 and
Opposer’s Rebuttal Notice of Reliance covering Exhibits 35-
76 (45 TTABVUE 2-532).10

Conf. Corp. of Seventh-Day Adventists, 2021 USPQ2d 643, at *4 n. 6 (TTAB 2021), appeal
docketed (Aug. 6, 2021) (reservation of right to add affirmative defenses).
7 The parties submitted a Stipulated Protective Order, 7 TTABVUE 2-14, which was accepted
by the Board. 8 TTABVUE 1. Exhibit 27 to Opposer’s Notice of Reliance was designated as
Confidential-Attorneys’ Eyes Only under the Stipulated Protective Order, and was filed
under seal. 25 TTABVUE.
8 We will cite the Kimbrough Declaration by paragraph and exhibit number (e.g., “Kimbrough
Decl. ¶ 8; Ex. 1”) and, where helpful in following our analysis, by TTABVUE page number(s)
as well. Exhibit 23 to the Kimbrough Declaration was designated as Confidential-Attorneys’
Eyes Only under the Stipulated Protective Order, and was filed under seal. 27 TTABVUE.
9 We will cite the Egan Declaration in the same manner as the Kimbrough Declaration.
Exhibits 45, 49, 54, and 55 to the Egan Declaration were designated as Confidential-
Attorneys’ Eyes Only under the Stipulated Protective Order, and were filed under seal. 32
TTABVUE.
10 There was nothing under the page designated as Exhibit 73. 45 TTABVUE 514. “Pursuant
to the Board’s notice to Opposer . . . that Exhibit 73 to its rebuttal notice of reliance (45
TTABVUE) was incomplete,” Opposer submitted a corrected Exhibit 73. 56 TTABVUE 2-6.
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2. Applicant’s Submission
Applicant’s Notice of Reliance covering Exhibits A-E (34
TTABVUE 2-82).11
B. Opposer’s Evidentiary Objection
Concurrently with the filing of its main brief, Opposer objected to and moved to
strike Exhibits A and C to Applicant’s Notice of Reliance on the ground that Applicant
had failed to produce the referenced materials in discovery. 47 TTABVUE 2-12.
Opposer argues that it “specifically requested documents purporting to reflect third-
party use during discovery, but Applicant refused to produce them.” 47 TTABVUE 2
(emphasis in original). Opposer summarizes its argument as follows:
The Federal Rules of Civil Procedure and notions of
fairness preclude parties from relying on information not
disclosed in response to discovery requests. Applicant’s
reliance on Sheetz of Delaware, Inc. v. Doctor’s Associates
Inc., which holds that “[a] party need not investigate third-
party use to respond to discovery requests,” to exonerate its
failure to produce these documents is misplaced. 108
USPQ2d 1341, 1348 (TTAB 2013). Furthermore, the Board
should reevaluate and overrule its decision in Sheetz,
which is inconsistent with the purpose of the Federal Rules
governing discovery and evidence and promotes unfairness
and gamesmanship.
Id. at 2-3.

11 Opposer moved to strike all of the exhibits to Applicant’s Notice of Reliance on various
procedural grounds. 35 TTABVUE 2-6. The Board denied the motion as to Exhibits B, C, and
D, 40 TTABVUE 5-9, but granted it as to Exhibits A and E to the extent of requiring Applicant
to file an amended notice of reliance “indicating the relevance of the evidence with sufficient
specificity.” Id. at 4, 10. Applicant’s Amended Notice of Reliance purported to cure those
deficiencies. 41 TTABVUE 2-12, 17-18. Concurrently with the filing of the Amended Notice
of Reliance, Applicant moved to reopen her trial period to introduce evidence of USPTO office
actions on a number of Opposer’s pleaded pending applications to register BAD MOMS, and
a notice of opposition filed by Opposer against a third-party application. The Board denied
the motion. 46 TTABVUE 3.
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Opposer cites Rule 37 (c)(1) of the Federal Rules of Civil Procedure and a number
of Board cases for the general proposition that a party may not rely at trial on
evidence that it did not produce in discovery in response to requests seeking it. Id. at
3-4. Opposer argues that Applicant responded to a request for production seeking
“[a]ll documents relating to the third-party marks on which Applicant intends to rely
upon [sic] in this proceeding,” id. at 4, by stating that “she ‘is unable to comply with
[RFP] No. 57 because no such documents exist. A diligent search and a
reasonable inquiry have been made in an effort to comply with this request.’” Id.
(quoting 24 TTABVUE 263 (emphasis supplied by Opposer)). Opposer also argues
that Applicant identified several third-party uses in response to one of Opposer’s
interrogatories, but then made of record “entirely different third-party uses and
registrations she never disclosed in discovery.” Id. at 5 (emphasis in original).
Opposer concludes that Applicant’s various objections do not support her incomplete
discovery responses, id., and that “the Board should strike Applicant’s evidence at
issue and preclude her from relying on it.” Id.
Opposer further argues that the Board’s decision in Sheetz, which permitted an
opposer to use evidence of third-party uses to show that the applicant’s mark was
generic even though the evidence had not been produced in discovery, is
distinguishable because this is not a genericness case. Id. at 6. Opposer argues
alternatively that the Board should overrule Sheetz because it is “inconsistent with
the Federal Rules governing discovery and evidence and promotes unfairness and
gamesmanship,” id., and because “Sheetz and its progeny promote unfair surprise at
Opposition No. 91240829
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trial and cannot be reconciled with the fundamental purpose of inter partes
discovery.” Id. at 7.
Citing Sheetz, Applicant responds that “Opposer was not put at a disadvantage
because the materials introduced by Applicant were equally accessible to Opposer
inasmuch as they were publicly available via the Internet,” and that “it is common
practice for parties to introduce evidence of third-party registrations and other
evidence to third-party use to demonstrate that a mark or a portion of a mark is
weak.” 50 TTABVUE 3. Applicant also argues that “it is well established that, in
Board proceedings, a party is under no obligation to investigate third parties in order
to respond to discovery requests.” Id. (citing Rocket Trademarks Pty Ltd. v. Phard
S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011)). Applicant argues that Exhibits A and
C to her Notice of Reliance “were not in the possession of Applicant during the
discovery period” and that “all the documents were publicly available and accessible
via the Internet.” Id. Finally, Applicant argues that “Opposer was not placed at a
disadvantage” because its motion to strike Applicant’s notice of reliance “allowed for
an extended period of time between the filing of Applicant’s notice of reliance and
Opposer’s filing of it’s [sic] rebuttal notice of reliance,” id., and that Opposer “had
notice of the publicly available documents from February, 4, 2020, or nearly nine
months prior to filing it’s [sic] rebuttal notice of reliance on October 25, 2020, and
eleven months prior to filing it’s [sic] opening brief on December 28, 2020.” Id. at 4.
In its reply brief on the motion, Opposer argues that “[b]y Applicant’s reasoning,
nothing available on the internet, which is virtually boundless, can result in unfair
Opposition No. 91240829
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surprise to Opposer. The absurdity of this contention is clear on its face.” 54
TTABVUE 2. Opposer also argues that “Applicant’s argument presumes that Opposer
can read Applicant’s mind as to what types of third-party uses she believes to be
relevant and may rely upon. The Federal Rules provide for discovery precisely so no
such mindreading is necessary.” Id at 3. Opposer claims that Applicant’s position “is
particularly unavailing with respect to the third-party registrations made of record
as Exhibit A to her notice of reliance” because Applicant offers no “authority holding
that it is ‘common practice’ to rely on such registrations” and that “nothing but for
timely disclosure during discovery could have prepared Opposer for Applicant’s novel
argument based on these third-party registrations.” Id.
Opposer also argues that “Applicant does not, and cannot, contend that this
evidence was not available to her during the discovery period when Opposer
requested its production” and that “due to Sheetz, Applicant was incentivized to delay
her collection of third-party materials so that she would not have to disclose them
during discovery.” Id. According to Opposer, “Applicant’s statement that she was not
in possession of the relevant materials during the discovery period may be literally
true, but it is a fiction that should be disincentivized, not encouraged.” Id. at 3-4.
We decline Opposer’s request to overrule “Sheetz and its progeny,” 47 TTABVUE
7, because “a party need not investigate third-party use in response to discovery
requests.” Rocket Trademarks, 98 USPQ2d at 1071. In Rocket Trademarks, the Board
addressed opposer’s claim that applicant’s mark ZU ELEMENTS for various goods in
Classes 16, 18, and 25 was likely to be confused with the opposer’s mark ELEMENT
Opposition No. 91240829
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for similar goods. The opposer objected to the introduction of exhibits to a testimony
deposition consisting of “third-party website materials, a list of registrations taken
from the USPTO TESS database, and certified copies of third-party registrations”
because “these documents were not previously produced in response to opposer’s
discovery requests.” Id.
The Board rejected that objection, holding that
applicant had no duty to conduct an investigation of third-
party use during discovery and, certainly, applicant’s
attempt to present evidence of third-party use of the term
ELEMENT should not have come as a surprise because it
is common practice to introduce third-party use to
demonstrate that a mark is weak and, therefore, entitled
to only a narrow scope of protection. The documents
introduced as exhibits to [the] deposition were equally
accessible to opposer, i.e., they were publicly available via
the internet. Finally, opposer had thirty days between the
close of applicant’s testimony period and the opening of its
rebuttal period to prepare any rebuttal against the
evidence of third-party use. Accordingly, opposer’s
objection to the . . . testimony deposition exhibits on the
basis that the documents were not previously produced in
response to opposer’s discovery requests is overruled.
Id. at 1072. For the reasons set forth in Rocket Trademarks, we overrule Opposer’s
objections to Applicant’s third-party use and registration evidence, and have
considered it in our decision.
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II. Background and General Factual Findings12
Opposer is in the motion picture industry, and produced and distributed the R-
rated motion pictures entitled BAD MOMS (2016) and A BAD MOMS CHRISTMAS (2017).
Egan Decl. ¶ 7 (28 TTABVUE 4).
The BAD MOMS Motion Picture
The BAD MOMS motion picture, starring Mila Kunis, Kathryn Hahn, and Kristen
Bell, was theatrically released in the United States on July 29, 2016. Egan Decl. ¶ 8.13
The film is “about a group of mothers sharing humorous adventures while juggling
motherhood and work at the same time.” Egan Decl. ¶ 8. On the motion picture
website IMDb (imbd.com), a plot summary attributed to Opposer described the
storyline as “When three overworked and under-appreciated moms are pushed
beyond their limits, they ditch their conventional responsibilities for a jolt of long
overdue freedom, fun, and comedic self-indulgence.” Egan Decl. ¶ 8; Ex. 43 (28
TTABVUE 49).
The theatrical release of BAD MOMS in July 2016 was preceded by a marketing
campaign involving a media spend in excess of $23 million. Egan Decl. ¶ 8. We display
below two examples of promotional materials for the BAD MOMS motion picture:

12 This section includes some general findings regarding the parties and their respective
marks, businesses, goods, and services, which we present mostly in chronological order
because Opposer must show on its Section 2(d) claim that it acquired proprietary rights prior
to Applicant’s July 28, 2017 filing date and Opposer’s dilution claim hinges entirely on
whether it can prove that its claimed BAD MOMS mark became famous before that date. We
make additional findings below in connection with specific issues.
13 Although Mr. Egan does not appear to have become employed by Opposer until after the
theatrical release of BAD MOMS, Egan Decl. ¶ 4, he testified that he worked on the marketing
campaign for the film as an independent marketing consultant for Opposer. Egan Decl. ¶ 5.
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Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 163).

Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 164).
Some of the promotional materials encouraged women to “Party Like a Mother,”
and offered cocktail recipes, drinking games, and other tips for a “Bad Moms Night
In.” Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 166-93). We display an example below:
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Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 168).
The theatrical release of BAD MOMS received coverage in various media articles.
Egan Decl. ¶ 22; Ex. 57 (30 TTABVUE 71-73, 76-85, 112-15, 123, 127-29, 139-43, 147-
50, 168-70, 178-79, 183-89, 193-98, 209-10, 222, 225-30, 239-63, 267-69, 276-84).
Opposer also engaged in co-promotions with other brand owners in connection with
the release of BAD MOMS. Egan Decl. ¶ 8; Exs. 46-47, 49 (28 TTABVUE 169, 172-73,
177-79, 182, 185-86, 188-90, 192-94, 251-52; 32 TTABVUE 44-95), 52 (29 TTABVUE
Opposition No. 91240829
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32); Kimbrough Decl. ¶ 10; Ex. 37 (27 TTABVUE 86-105, 109-26, 129-39, 158-67, 186-
203, 222-30). We display two examples below:14

Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 197).

Egan Decl. ¶ 12; Ex. 46 (28 TTABVUE 195).
The BAD MOMS motion picture grossed over $113 million in box office revenues in
the United States. Egan Decl. ¶ 8. The film and its soundtrack were released on DVD
and Blu-Ray on November 1, 2016. Egan Decl. ¶¶ 8, 14; Exs. 46-48 (28 TTABVUE
283-88, 295-308).
Mr. Egan testified that “[s]ince the launch of the BAD MOMS brand in 2016,
Opposer has directly, and indirectly through licensees, been continuously using the

14 Many of Opposer’s co-promotions discussed and shown in the Egan Declaration involved
the sequel to BAD MOMS entitled BAD MOMS CHRISTMAS. We discuss them below.
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BAD MOMS mark in U.S. commerce in connection with the Bad Moms motion picture
and related goods and services, and has expanded use of the mark.” Egan Decl. ¶ 13.
Opposer has licensed the use of the mark for creation and sale of merchandise
through outlets such as Spencer’s and Zazzle. Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE
73-78, 83-89, 91-101, 104-56).
Opposer first used the BAD MOMS mark in connection with beverageware at least
as early as June 14, 2016. Kimbrough Decl. ¶ 10.15 We display below examples of such
beverageware and other goods bearing the BAD MOMS mark that were available in
2016, or at some time prior to Applicant’s July 28, 2017 filing date:

Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 75).

15 Opposer was a party to two agreements providing for the production of promotional
merchandise whose terms began prior to Applicant’s July 28, 2017 filing date. Kimbrough
Decl. ¶ 10; Ex. 37. These agreements were designated Confidential-Attorneys’ Eyes Only, and
were filed under seal. 27 TTABVUE.
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Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 77).

Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 83).
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Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 84).
Opposer subsequently expanded the collateral licensing of the BAD MOMS mark
into various other goods, including t-shirts, an example of which we depict below:

29 TTABVUE 105.
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The Sequel A BAD MOMS CHRISTMAS
Opposer announced in December 2016 that a sequel to BAD MOMS would be made.
Egan Decl. ¶ 9.16 Opposer began promoting the sequel in late December 2016. Egan
Decl. ¶ 9. On December 23, 2016, an article entitled “‘Bad Moms’ Christmas Sequel
in the Works for Late 2017 Release” appeared in VARIETY under a scene that appeared
in media coverage of the BAD MOMS film:

Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 112). The article stated that “STX
Entertainment is launching ‘A Bad Moms Christmas’ as a sequel to its hit comedy
‘Bad Moms,’ with a November 3, 2017 release date.” Egan Decl. ¶ 9; Ex. 44 (28
TTABVUE 112). The article further stated that “Jon Lucas and Scott Moore are
returning to direct from their own script with stars Mila Kunis, Kristen Bell and

16 Mr. Egan testified that the announcement was made “[s]hortly after release of Bad Moms
in July 2016,” Egan Decl. ¶ 9, but a December 27, 2016 article in FORBES stated “Since the
news dropped on Friday night, I’m a little late to the party. But yeah, STX Entertainment
announced that we will be getting a true Bad Moms sequel sooner rather than we thought.”
Egan Decl. ¶ 9; Ex. 42 (28 TTABVUE 128).
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Kathryn Hahn reprising their characters,” that the “film will be produced by Suzanne
Todd and executive produced by Bill Block; the duo produced ‘Bad Moms,’” and that
“[i]n ‘A Bad Moms Christmas,’ the trio must deal with the stresses of their own
mothers visiting for the holidays.” Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 112).17
Kristen Bell announced the sequel on the same day via Twitter:

Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 113).
A December 27, 2016 article in FORBES entitled “Bad Moms Christmas’ Aims to
Avoid Trend of Disappointing Comedy Sequels” also displayed the scene from BAD
MOMS shown above and stated that in the sequel the “stars of Bad Moms (Mila Kunis,
Kristen Bell, Kathryn Hahn, etc.) will reunite with writer/directors Jon Lucas and

17 This article and others also noted that Opposer had announced the production of a “Bad
Dads” motion picture, but that film was never made. A FORBES article in June 2017 stated
that “Bad Dads is no more (for now).” Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 135).
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Scott Moore along with produces Suzanne Todd and executive producer Bill Block.”
Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 128).
On May 2, 2017, an article on georgiaentertainmentnews.com entitled “Filming
Begins on STXfilms’ A Bad Moms Christmas,” stated that filming had begun in
Georgia on the sequel, in which “the bad moms receive a holiday visit from their own
mothers, in new roles portrayed by Cheryl Hines (Kiki’s mom), with Christine
Baranski (Amy’s mom) and Susan Sarandon (Carla’s mom),” and that the sequel
would be released domestically on November 3, 2017. Egan Decl. ¶ 9; Ex. 44 (28
TTABVUE 123). On May 3, 2017, an article appeared on the website of slashfilm.com
regarding the release of A BAD MOMS CHRISTMAS in November 2017. Egan Decl. ¶ 22;
Ex. 57 (30 TTABVUE 119-20).
On June 28, 2017, one month before Applicant’s filing date, an article entitled
“Trailer: Mila Kunis and Kristen Bell’s ‘A Bad Moms Christmas’ May be a Breakout
Sequel” appeared online in FORBES. Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 134). The
article reported on the trailer for what the article described as the “second installment
in what is now STX’s crown jewel,” Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 134), and
displayed the following screenshots from the trailer:
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Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 134-35). The article included a link to the trailer
as shown below:
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Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 136).
The same day, articles about A BAD MOMS CHRISTMAS also appeared in ELLE and
USA TODAY. The USA TODAY article was entitled “See ‘Bad Moms’ reject ‘Christmas’
perfection in exclusive first photos” and appeared on usatoday.com. Egan Decl. ¶ 9;
Ex. 44 (28 TTABVUE 143-44). In addition to the two pictures displayed in the FORBES
article and shown above, the USA TODAY article displayed the scene from BAD MOMS
shown below:

Opposition No. 91240829
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Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 144). The article discussed filming of various
scenes from A BAD MOMS CHRISTMAS in a shopping mall, and quoted Mila Kunis,
Kristen Bell, and Kathryn Hahn about the experience of filming in the presence of
young children and after they were removed from the set, giving Santa Clause a lap
dance. Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 143). The article stated that
This is now expected behavior for the stars of Bad Moms,
whose drink-fueled, rowdy rebellion against the pressures
of perfect motherhood was the R-rated breakout hit of
2016. After the low-budget comedy shot to $113 million,
writer/directors Jon Lucas and Scott Moore brought back
the trio of mothers — Kiki (Bell), Amy (Kunis) and Carla
(Hahn) — who are once again pushed to the point beyond
caring. . . . [T]his time the moms are fighting back against
holiday stress and the expectation of making the season
perfect for their families.
Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 143).
The ELLE article was entitled “Watch the A Bad Moms Christmas Teaser Trailer,”
and appeared on elle.com. Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 157-58). It stated
that “The A Bad Moms Christmas trailer is out, and frankly, the casting director
should get some kind of an award.” Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 157). Like
the article in FORBES, the ELLE article included a link to the trailer. Egan Decl. ¶ 9;
Ex. 44 (28 TTABVUE 157). The article also discussed the roles played by new stars
Susan Sarandon, Cheryl Hines, Christine Baranski, and others, and described some
humorous scenes from the sequel. Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 157). The
author concluded that “I’m slow clapping right now. Somebody give this movie a Mom
medal.” Egan Decl. ¶ 9; Ex. 44 (28 TTABVUE 157). An article in THE NEWNAN TIMES-
HERALD (GA) entitled “‘Bad Moms’ filming in Newnan” appeared on the times-
Opposition No. 91240829
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herald.com website on June 9, 2017 and discussed the filming of A BAD MOMS
CHRISTMAS at various locations in Georgia. Egan Decl. ¶ 22; Ex. 57 (30 TTABVUE
109-111).
Opposer’s media spend promoting the theatrical release of A BAD MOMS
CHRISTMAS was nearly $20 million, Egan Decl. ¶ 9, and the sequel’s release received
media coverage. Egan Decl. ¶ 22; Ex. 57 (30 TTABVUE 74-75, 86-103, 119-20, 135-
38, 144-46, 151-57, 163-65, 173-74, 190-92, 203-08, 211-15, 218-19, 223-24, 235-38,
241-58, 264-66, 270-75, 285-92). Opposer also engaged in a number of cross
promotions with other brand owners preceding or in connection with the sequel’s
release. Egan Decl. ¶ 10; Exs. 44, 46 (28 TTABVUE 93-99, 114-22, 149-54, 200-01,
205, 208-24, 240-43, 246). Opposer entered into multiple promotional and
merchandise licensing agreements relating to A BAD MOMS CHRISTMAS. Kimbrough
Decl. ¶ 10; Ex. 37 (27 TTABVUE 3-85, 120-28, 140-57, 204-21).
Opposer’s Registrations and Applications
Opposer owns three registrations of BAD MOMS in standard characters for
“cosmetics” (Registration No. 5567301), “all-purpose carrying bags” (Registration No.
5567305), and “beverageware, bottle stoppers specifically adapted for use with wine
bottles, coasters not of paper or textile, cocktail shakers, flasks, and water bottles sold
empty” (Registration No. 5567306). Kimbrough Decl. ¶ 8; Ex. 35.18 At the time of trial,
Opposer also owned multiple pending applications to register BAD MOMS in

18 Opposer also owns a registration of BAD DADS in standard characters for beer
(Registration No. 4922649), which it acquired by assignment, Kimbrough Decl. ¶¶ 8, 12; Exs.
35; 38, but as discussed below, we will focus our analysis on Opposer’s BAD MOMS mark.
Opposition No. 91240829
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standard characters for a wide variety of goods in Classes 3, 9, 18, 21, 25, 26, and 33,
and for services in Classes 41, and to register BADMOMLIFE in standard characters
for a wide variety of goods in Classes 9, 18, and 25, and for services in Classes 41 and
43. Kimbrough Decl. ¶ 9; Ex. 36. Applicant’s ’487 Application was cited against
Opposer’s Class 9 and Class 25 applications. Kimbrough Decl. ¶ 21.
Applicant and Her Marks
The record contains virtually no information about Applicant and her business
because she did not submit a testimony declaration and Opposer did not depose her.
Applicant is an individual who resides in Friendswood, Texas and who filed the ’487
and ’298 Applications on July 28, 2017, almost exactly one year after the theatrical
release of BAD MOMS. Applicant alone was involved in the selection and adoption of
the marks. 24 TTABVUE 165 (Applicant’s Responses to Opposer’s Interrogatory Nos.
6-7). She “was aware of the Bad Moms motion picture at the time [she] applied for
the trademarks,” id. at 179 (Applicant’s Supplemental Response to Opposer’s
Interrogatory No. 8), and had “learned and knew about the motion picture after
seeing advertising for the movie.” Id. (Applicant’s Supplemental Response to
Opposer’s Interrogatory No. 8). She was aware of the theatrical release of BAD MOMS
before she selected, applied to register, and used her marks. Id. at 227-31 (Applicant’s
Responses to Opposer’s Request for Admission Nos. 7-12, 25-36).
Opposition No. 91240829
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III. Entitlement to a Statutory Cause of Action19
A plaintiff’s entitlement to a statutory cause of action for opposition or
cancellation must be established in every inter partes case. Australian Therapeutic
Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed.
Cir. 2020), reh’g en banc denied, 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020),
petition for cert. filed (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)). Opposer may oppose Applicant’s
applications if such opposition is within the zone of interests protected by the statute,
15 U.S.C. § 1063, and Opposer has a reasonable belief in damage that is proximately
caused by registration of the marks. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
2020 USPQ2d 11277, at *6-7 (Fed. Cir. 2020), cert. denied, ___ U.S. ___ (2021).
Applicant does not dispute Opposer’s entitlement to a statutory cause of action,
and we find that it “is established with respect to its likelihood of confusion and
dilation claims by its registrations” of its BAD MOMS marks, “which the record shows
to be valid and subsisting, and owned by Opposer.” N.Y. Yankees P’ship v. IET Prods.
& Servs., Inc., 114 USPQ2d 1497, 1501 (TTAB 2015) (citing Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000)), and by the fact
that examination of two of Opposer’s pending applications to register BAD MOMS

19 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act under the rubric of “standing,” and Opposer here has done so as well. 48
TTABVUE 21 (arguing that “Opposer Has Standing”). Despite the change in nomenclature,
the substance of the analysis of this issue in our prior decisions and those of the Federal
Circuit interpreting Sections 13 and 14 remains applicable. See Spanishtown Enters., Inc. v.
Transcend Res., Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020).
Opposition No. 91240829
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has been suspended because the mark in Applicant’s ’487 Application has been cited
as a potential bar to registration of two of Opposer’s marks. Kimbrough Decl. ¶¶ 20-
21. See Fiat Grp. Autos. S.p.A. v. ISM Inc., 94 USPQ2d 1111, 1112 (TTAB 2010); cf.
Australian Therapeutic Supplies, 2020 USPQ2d 10837, at *4 (“A petitioner may
demonstrate a real interest and reasonable belief of damage where the petitioner has
filed a trademark application that is refused registration based on a likelihood of
confusion with the mark subject to cancellation.”).
Because Opposer has shown entitlement to a statutory cause of action on its
Section 2(d) and Section 43(c) claims, “it has the right to assert any other grounds,”
including its lack of bona fide intention to use claim. Id. (citing Corporacion Habanos
SA v. Rodriguez, 99 USPQ2d 1873, 1877 (TTAB 2011).
IV. Opposer’s Likelihood of Dilution Claim
We begin with Opposer’s claim of dilution by blurring under Section 43(c) because
it potentially provides Opposer the broadest possible relief. Unlike success on
Opposer’s lack of intention to use claim, success on its dilution and likelihood of
confusion claims would preclude Applicant from filing new applications based on use
or a bona fide intention to use, and Opposer can prevail on its dilution claim
“regardless of the presence or absence of actual or likely confusion [or] of competition
. . . .” 15 U.S.C. § 1125(c)(1).
“The Trademark Act provides for a cause of action for the dilution of famous and
distinctive marks:
[T]he owner of a famous mark that is distinctive,
inherently or through acquired distinctiveness, shall be
Opposition No. 91240829
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entitled to an injunction against another person who, at
any time after the owner’s mark has become famous,
commences use of a mark or trade name in commerce that
is likely to cause dilution by blurring or dilution by
tarnishment of the famous mark, regardless of the
presence or absence of actual or likely confusion, of
competition, or of actual economic injury.
TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1103 (TTAB 2018) (quoting 15
U.S.C. § 1125(c)(1)). “Section 13(a), 15 U.S.C. § 1063(a), makes dilution by blurring
or tarnishment under Section 43(c) a basis for opposing registration.” Id.
“A successful claim for federal trademark dilution by blurring under Section
43(c) of the Trademark Act requires that a plaintiff plead and prove the following in
a Board proceeding:
1. Plaintiff owns a famous mark that is distinctive;20
2. Defendant is using a mark in commerce that allegedly
dilutes plaintiff’s famous mark;
3. Defendant’s use of its mark began after plaintiff’s mark
became famous; and
4. Defendant’s use of its mark is likely to cause dilution by
blurring.”
Id.
“A threshold question in a federal dilution claim is whether the mark at issue is
‘famous.’” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1724 (Fed. Cir. 2012). The requirement of proof of ownership of a “famous” mark
is an exacting one following the amendment in 2006 of the dilution provisions of the

20 We find below in our analysis of the issue of Opposer’s priority on its Section 2(d) claim
that the BAD MOMS mark is distinctive for motion pictures because it has been used in a
series of motion pictures.
Opposition No. 91240829
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Trademark Act through the Trademark Dilution Revision Act (“TDRA”). “Under the
TDRA, a mark is famous if it ‘is widely recognized by the general consuming public
of the United States as a designation of source of the goods or services of the mark’s
owner.’” Coach Servs., 101 USPQ2d at 1724 (quoting 15 U.S.C. § 1125(c)(2)(A)).
“It is well-established that dilution fame is difficult to prove.” Id. “An opposer must
show that, when the general public encounters the mark ‘in almost any context, it
associates the term, at least initially, with the mark’s owner,’” TiVo Brands, 129
USPQ2d at 1103 (quoting Coach Servs., 101 USPQ2d at 1725), and that the mark has
“become a ‘household term [with] which almost everyone is familiar.’” Id. at 1112
(quoting Toro Co. v. ToroHead, Inc., 61 USPQ2d 1164, 1181 (TTAB 2001)). Here,
Opposer has the particularly daunting task of proving that the BAD MOMS mark
became a “household term” in a period of a little more than a year before Applicant’s
July 28, 2017 filing date.21
In determining whether Opposer’s BAD MOMS mark is famous, we “may consider
all relevant factors, including the following:
(i) The duration, extent, and geographic reach of
advertising and publicity of the mark, whether advertised
or publicized by the owner or third parties.
(ii) The amount, volume, and geographic extent of sales of
goods or services offered under the mark.
(iii) The extent of actual recognition of the mark.

21 Each claim to fame must be assessed on its own merits, but Opposer has not cited, and we
are not aware of, any case in which a mark has been found to be famous for purposes of a
dilution claim based on use for a period of that length.
Opposition No. 91240829
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(iv) Whether the mark was registered under the Act of
March 3, 1881, or the Act of February 20, 1905, or on the
principal register.”
Id. at 1104 (quoting 15 U.S.C. § 1125(c)(2)(A)). We address each factor below.
A. The Duration, Extent, and Geographic Reach of Advertising and
Publicity of the BAD MOMS Mark
Opposer argues that it “heavily promoted and publicized the BAD MOMS mark
such that it attained fame in a relatively brief timeframe.” 48 TTABVUE 46. Opposer
points to its expenditure of “at least $26 million dollars to advertise, market, and
promote Bad Moms and more than $20 million to advertise, market, and promote A
Bad Moms Christmas for theatrical release and home/on-demand/streaming release,”
id. (citing Egan Decl. ¶ 20);22 its social media exposure and following “[a]s of June 13,
2019,” id. (citing Egan Decl. ¶ 21; Ex. 56); unsolicited media coverage of the films, id.
(citing Egan Decl. ¶¶ 9, 22; Ex. 44, 57); Opposer’s licensing and promotional
agreements, id. (citing Kimbrough Decl. ¶ 11; Ex. 37); and the industry awards
received by BAD MOMS. Id. (citing Egan Decl. ¶ 9; Ex. 58).23
Applicant responds that “Opposer has not proven it’s [sic] BAD MOMS mark
ranks among the small amount of marks accorded the ‘famous’ status for purposes of

22 The specific figures were designated Confidential-Attorneys’ Eyes Only and were filed
under seal. Egan Decl. ¶ 20; Ex. 55 (32 TTABVUE 124-25). Mr. Egan testified that the media
spend for each film was “a conservative estimate; the amounts were likely well more than
this,” Egan Decl. ¶ 20, but the reported confidential figures are precise to the dollar and we
have no basis to find that they “were likely well more than” what was reported.
23 We will consider the pre-July 28, 2017 media coverage of the BAD MOMS motion picture,
and the awards that it has received, under the third fame factor, the extent of actual
recognition of the BAD MOMS mark. See TiVo Brands, 129 USPQ2d at 1104-05; Nike, Inc.
v. Maher, 100 USPQ2d 1018, 1024-26 (TTAB 2011).
Opposition No. 91240829
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a dilution claim.” 49 TTABVUE 26. Applicant argues that “[f]ame for dilution
purposes requires direct evidence of consumer recognition,” and that “Opposer offered
no evidence of a powerful association, that when the public encounters the BAD
MOMS trademark in any context, it recognizes and associates it only with Opposer’s
motion picture services or goods.” Id.
Opposer’s cited evidence of the advertising and promotion of its BAD MOMS mark
and its recognition through social media encompasses a time period that begins before
Applicant’s filing date and ends afterwards. All of the $26 million spent in support of
the theatrical and home entertainment releases of BAD MOMS was spent between May
4 and November 27 in 2016, but the $20 million in expenditures in support of the
theatrical and home entertainment releases of A BAD MOMS CHRISTMAS occurred
between June 28, 2017 (one month before Applicant’s filing date) and October 30,
2017 (theatrical release), as well as between January 22, 2018 and February 18, 2018
(home entertainment release). Egan Decl. ¶ 20; Ex. 55 (29 TTABVUE 181). The home
entertainment release expenditures are irrelevant to show that the BAD MOMS
mark became famous before July 28, 2017, and we cannot determine what portion of
the theatrical release expenditures for A BAD MOMS CHRISTMAS was made prior to
that date. Without such information, those theatrical release expenditures have little,
if any, probative value in our analysis of whether BAD MOMS became famous before
July 28, 2017. Cf. N.Y. Yankees P’ship, 114 USPQ2d at 1503 (testimony regarding
$1.5 billion sales figures for period between 1995 and 2015 faulted for not specifying
Opposition No. 91240829
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“how much of that $1.5 billion in sales was from the time frame most relevant for
dilution – that is, before Applicant filed its application in 2008 . . . .”).
In addition, as Opposer acknowledges, all of the social media pages list the
number of Opposer’s followers as of June 13, 2019. Egan Decl. ¶ 21; Ex. 56 (29
TTABVUE 183-347; 30 TTABVUE 2-69). These figures are hearsay when offered as
evidence of Opposer’s social media presence, but even if we accepted them at face
value, they tell us nothing about Opposer’s social media presence as of July 28, 2017.
Accordingly, Opposer’s social media evidence is not probative of the fame of its mark
for dilution purposes.
Opposer’s expenditure of $26 million in a little more than six months in 2016 for
“advertisements and banners, online and social media advertisements, and
promotional partnerships with other brands,” Egan Decl. ¶ 12, seems to be
substantial, but Mr. Egan did not provide (1) a breakdown of the total media spend
among these categories of expenditures, (2) information about the number of such
materials, or about when, where, and for how long they were displayed, or, most
importantly, (3) information as to how the aggregate figure compares to the
expenditures made in support of the numerous other films that were released in 2016,
other films released by Opposer, or other successful motion pictures. We thus cannot
determine whether Opposer’s expenditures were of such a magnitude to establish
Opposition No. 91240829
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that by July 28, 2017, the BAD MOMS mark stood out from the crowd of the numerous
other films that were released in 2016 or in prior years.24
Opposer’s 2016 expenditures are also neither comparable in absolute terms to the
advertising expenditures in several dilution cases in which marks have been found to
be famous, nor “long-running,” as Opposer claims, 48 TTABVUE 47, in comparison
to the expenditures in those cases. See, e.g., Chanel, Inc. v. Makarczyk, 110 USPQ2d
2013, 2020-21 (TTAB 2014) (advertising expenditures of $275 million between 2000-
2007 and $200 million between 2009-2012 found to be substantial and to support a
finding that the opposer’s CHANEL mark was famous); Nike, 100 USPQ2d at 1026
(advertising expenditures of approximately $6 billion over a 20-year period were
“extensive and widespread” and supported a finding that the opposer’s JUST DO IT
mark was famous); UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1887
(TTAB 20011) (extensive nationwide promotion of the opposer’s MOTOWN mark for
musical recordings and entertainment since the 1960s supported a finding that the
mark was famous in 2011); Nat’l Pork Bd. v. Supreme Lobster & Seafood Co., 96
USPQ2d 1479, 1495 (TTAB 2010) (expenditures of more than $25 million annually,
and more than $550 million dollars total over a 20-year period of use of the opposer’s
mark THE OTHER WHITE MEAT, supported a finding that the mark was famous).

24 As discussed below, published reports ranking BAD MOMS in terms of its box office revenues
relative to those of other films released in 2016 stated that BAD MOMS was never the top-
grossing film at any time in 2016 and declined over time in rankings against other films.
Opposition No. 91240829
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On this record, we find that Opposer’s advertising expenditures do not support a
finding that its BAD MOMS mark had become famous by July 28, 2017.25
B. The Amount, Volume, and Geographic Extent of Sales of Goods or
Services under the BAD MOMS Mark
Opposer argues that “[t]he Bad Moms Pictures were box office smashes,” 48
TTABUVE 47, but only the revenues from BAD MOMS count in our analysis of dilution
fame. According to Mr. Egan, Bad Moms grossed $113 million in the United States,
all of which revenues appear to have been realized prior to Applicant’s filing date.
Egan Decl. ¶ 8.26 We credit Mr. Egan’s testimony regarding this figure based on his
foundational testimony that “[t]he facts set forth herein are based on my own
personal knowledge and on information contained in Opposer’s business records
regularly maintained by Opposer in the normal course of business and to which I
have regular access in the course of my job.” Egan Decl. ¶ 3.
Mr. Egan attached to his declaration pages from the websites of imbd.com and
boxofficemojo.com, the latter of which he described as “a website that tracks box office
revenue for motion pictures,” Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 74-91), as well as
a Wikipedia entry regarding the BAD MOMS motion picture that contains revenue

25 The same is true for Opposer’s “26 license and copromotional agreements,” 48 TTABVUE
46, about which have no information regarding the level of any supporting advertising
expenditures or any revenues realized from the agreements.
26 Mr. Egan also testified that as of December 6, 2019, “the Bad Moms Motion Pictures have
grossed approximately $44 million in revenues from domestic sales of the Bad Moms Motion
Pictures through physical home media and approximately $31 million in revenues from
domestic cable and internet video-on-demand and electronic sell through.” Egan Decl. ¶ 14.
He did not provide a breakdown between the two films, or identify any such revenues for BAD
MOMS that were realized before July 28, 2017, so his testimony has little or no probative
value regarding the fame of the BAD MOMS mark for dilution purposes.
Opposition No. 91240829
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figures. Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 66-73). To the extent that Opposer
offers these webpages to show the revenues realized by the BAD MOMS films, and
exactly when they were realized, they are hearsay. See Swiss Watch Int’l Inc. v. Fed’n
of the Swiss Watch Indus., 101 USPQ2d 1731, 1735 (TTAB 2012) (Internet printouts
attached as exhibits to testimony “do not prove the truth of the statements made
therein,” but are “acceptable to show that the statements were made or the
information was reported in the webpages.”).
The business records exception to the rule against hearsay, codified in Rule 803(6)
of the Federal Rules of Evidence, “does not require that [a] document actually be
prepared by the business entity offering the document.” Christian Faith Fellowship
Church v. Adidas AG, 841 F.3d 986, 120 USPQ2d 1640, 1643 (Fed. Cir. 2016) (quoting
Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1343 (Fed. Cir. 1999)).
“When a business relies on a document that it has not itself prepared, two factors
bear on the admissibility of the evidence as a business record: ‘[1] that the
incorporating business rely upon the accuracy of the document incorporated[;] and [2]
that there are other circumstances indicating the trustworthiness of the document.’”
Id. (quoting Air Land Forwarders, 172 F.3d at 1343). Mr. Egan testified that “[u]nless
otherwise noted, the exhibits to which I refer and which are attached to this
declaration are copies of documents and other materials from Opposer’s business
records kept in the ordinary course of business.” Egan Decl. ¶ 3. Even if Opposer
maintained the third-party webpages in its “business records kept in the ordinary
course of business,” however, the pages attached to Mr. Egan’s Declaration were
Opposition No. 91240829
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downloaded on May 5, 2018 (28 TTABVUE 74-91), and he did not testify that Opposer
ever relied on them to determine its revenues from the BAD MOMS films. Accordingly,
the webpages can be considered only “to show that the [revenue] information was
reported in the webpages.” Swiss Watch Int’l, 101 USPQ2d at 1735.
Opposer’s revenues from BAD MOMS appear to be substantial, but Mr. Egan again
did not testify as to how they compared to the revenues generated by other motion
pictures that were released in 2016, or by motion pictures that are generally
acknowledged as having been commercially successful. As a result, we do not know
from his testimony whether BAD MOMS was the box office smash hit of the year, one
of many successful films, or merely an average revenue-generator. Persons viewing
the revenue reports on boxofficemojo.com, however, would be far more likely to
conclude that BAD MOMS was merely one of many successful films.
The boxofficemojo.com webpages reported gross revenue from BAD MOMS for each
day during the period between July 29, 2016, when BAD MOMS was theatrically
released, and October 27, 2016, when the theatrical exhibition of the film appears to
have ended, as well as the rankings of those revenues relative to other films released
in 2016, and to films historically. Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 83-91). We
reproduce below a chart from boxofficemojo.com reporting revenue metrics during
this period:
Opposition No. 91240829
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Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 89). Boxofficemojo.com reported that BAD MOMS
was ranked in the top-three grossing films between July 29, 2017 and August 11,
2016, after which it began a gradual decline in revenues relative to other films.
Boxofficemojo.com reported that BAD MOMS remained in the top 10 in revenues for
the period prior to mid-September, but gradually dropped off until the end of October,
when it reportedly ranked 41st.
Boxofficemojo.com also reported the revenues from BAD MOMS relative to films
historically. Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 83-84). We reproduce below a
portion of the report:
Opposition No. 91240829
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28 TTABVUE 83.
In short, Boxofficemojo.com reported that the BAD MOMS motion picture was
extremely successful in terms of weekly gross revenue for about two months
beginning at the end of July 2016, but then fell back into the pack for the duration of
its run in theaters, and that its total revenues did not make a blip in historical terms.
Mr. Egan also testified that the fan base for the BAD MOMS motion pictures
consists primarily of mothers, Egan Decl. ¶ 16, that “[f]or the Bad Moms theatrical
release, the audience was largely comprised of women (89%) ages 25-49, with 75% of
the total audience self-identifying as mothers,” and that “[s]imilarly, the DVD
audience was largely made up of women ages 25-54.” Egan Decl. ¶ 18. It goes without
saying that women and mothers make up a substantial portion of American society,
but the fact that the exposure of the BAD MOMS film skewed so heavily toward women
and mothers further reduces the probative value of the revenue evidence in showing
that the BAD MOMS mark had “become a ‘household term [with] which almost
everyone is familiar.” TiVo Brands, 129 USPQ2d at 1103.
Opposition No. 91240829
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There is no doubt that BAD MOMS was a commercial success in 2016, but against
the backdrop of the revenue rankings reported on boxofficemojo.com and the
demographics of the film’s audience, Mr. Egan’s testimony does not support a finding
that BAD MOMS had become famous for dilution purposes by July 28, 2017. Cf. In re
Mr. Recipe, LLC, 118 USPQ2d 1084, 1086-87 (TTAB 2016) (1975 motion picture
JAWS found to be “a famous movie” for purposes of likelihood of confusion refusal
because, inter alia, the IMDb.com website ranked the film as the number 72 top
grossing movie of all time as of 2014 and the ENCYCLOPAEDIA BRITTANICA listed the
film as “one of the highest-grossing films ever”).
C. Extent of Actual Recognition of the BAD MOMS Mark
“Perhaps the most significant of the four elements set forth in the Act to determine
fame is the extent of actual public recognition of the mark as a source-indicator for
the goods or services in connection with which it is used.” TiVo Brands, 129 USPQ2d
at 1104 (quoting Nike, 100 USPQ2d at 1024). Opposer does not offer any direct
evidence of actual recognition, such as a consumer survey, but relies instead on its
claims that “the Bad Moms Motion Pictures and BAD MOMS mark have been the
subject of significant media attention,” and that “Opposer’s witnesses testified to the
public’s recognition of the BAD MOMS mark without contradiction.” 48 TTABVUE
48 (citing Egan Decl. ¶¶ 25, 27; Kimbrough Decl. ¶ 25).27

27 We give no weight to the uncontradicted but obviously self-serving lay opinions of Opposer’s
witnesses that the BAD MOMS mark is famous.
Opposition No. 91240829
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Opposer cites the facts that “[m]any news outlets, including Entertainment
Weekly, The Hollywood Reporter, and Variety, reported the announcement” in 2016
that Opposer was producing a sequel to BAD MOMS, Egan Decl. ¶ 9; Ex. 44, that its
films “have garnered unsolicited media coverage throughout the United States,
including critical reviews in” THE NEW YORK TIMES, THE GUARDIAN, THE NEW YORK
POST, FORBES, and the LOS ANGELES TIMES, Egan Decl. ¶ 22; Ex. 57,28 and that BAD
MOMS won several awards and appeared on lists of top comedy films. Egan Decl. ¶ 23;
Exs. 58-59.
The critical reviews of BAD MOMS are nothing more than the sort of review that
any new film might receive from a film critic upon its debut. Egan Decl. ¶ 22; Ex. 57
(30 TTABVUE 71-73, 76-85, 280-84). Subsequent pre-July 28, 2017 articles29 about
BAD MOMS variously described the film as the “first R-rated comedy of the year so far
to top $100 million domestically” and Opposer’s “top-grossing film to date, by far,” 30

28 The cited November 3, 2017 review in THE GUARDIAN, Egan Decl. ¶ 22; Ex. 57 (30
TTABVUE 74-75), critiqued A BAD MOMS CHRISTMAS, and is irrelevant on Opposer’s dilution
claim.
29 Opposer cites no authority for its argument that “[a]lthough some of the publicity and
accolades listed above may have occurred after July 28, 2017, they are, nevertheless, still
relevant to establishing the publicity and advertising necessarily preceding such
recognition.” 48 TTABVUE 46-47. But even if we considered the post-July 28, 2017 media
coverage of the BAD MOMS motion picture, cf. Piano Factory Grp., Inc. v. Schiedmayer Celesta
GmbH, ___ F.4th ___, 2021 USPQ2d 913, at *13 (Fed. Cir. 2021) (finding that the Board did
not err in relying on recent publications to draw inferences as to the fame of the petitioner’s
name or identity on its claim for false suggestion of a connection under Section 2(a) of the
Trademark Act), we would not find that such coverage supported a finding of dilution fame.
As discussed below in our analysis of Opposer’s claim that its mark is famous for likelihood
of confusion purposes, the post-July 28, 2017 did not refer to BAD MOMS (or A BAD MOMS
CHRISTMAS) as an iconic film, or as more than just two of the many successful films in 2016
and 2017.
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TTABVUE 107-08 (September 3, 2016 HOLLYWOOD REPORTER article);30 an
“unexpected box office hit,” id. at 121 (October 11, 2016 article in THE INDEPENDENT);
a “hit comedy,” id. at 130 (December 23, 2016 VARIETY article); Opposer’s “first $100
M hit,” id. at 133 (September 3, 2016 deadline.com article), and “first big hit,” id. at
175 (September 5, 2016 FORBES article); a film that “stormed the box office this
summer,” id. at 158 (December 19, 2016 ENTERTAINMENT article); a “smash” with
“legs” from a relatively modest opening weekend “to a whopping $113.25m domestic
total,” and the “event movie of the year,” id. at 171, 177 (December 27, 2016 FORBES
article);31 a “big success specifically within the sandbox in which STX theoretically
intends to survive,” id. at 179 (August 1, 2016 FORBES article), Opposer’s “crown
jewel,” id. at 190 (June 28, 2017 FORBES article), and the “R-rated breakout hit of
2016.” Id. at 237 (June 27, 2017 USA TODAY article). Some of these articles also
discussed other films that ran against BAD MOMS.
The pre-July 28, 2017 articles show that BAD MOMS was viewed as a commercial
success, and that its success was viewed as exceeding the expectations of pundits and
perhaps even of Opposer itself. But this positive media coverage in 2016 and 2017 is
qualitatively different from the type of media coverage that has been found in other

30 The article reported that “[m]ost R-rated comedies have struggled of late,” but that the
exceptions were BAD MOMS and “Sony’s and Annapurna’s animated adult film Sausage Party,
which will finish the Labor Day weekend with north of $90 million domestically on its way
to crossing the $100 million threshold.” 30 TTABVUE 108.
31 A July 31, 2016 article in FORBES reported that on the first weekend, the film JASON
BOURNE “snagged $60.04 million this weekend to top the box office,” while BAD MOMS
brought in $23 million in a debut that the article stated was “still good,” but “feels like a
comedown by comparison” to projected revenues. 30 TTABVUE 147-50.
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dilution cases to reflect the iconic status of famous marks. See TiVo Brands, 129
USPQ2d at 1105 (discussing news articles describing the opposer’s TIVO mark “as
having ‘near household-name recognition’” and as an “iconic brand”); Chanel, 110
USPQ2d at 2021 (discussing coverage of the opposer’s CHANEL mark in various
publications in which the mark was “consistently ranked as one of the most
recognized and famous brands in the United States”); Nike, 100 USPQ2d at 1024-26
(fame of opposer’s JUST DO IT mark evidenced by “third-party references to and
discussions about the mark,” which “have been pervasive, reflecting the extreme
popularity of the mark and the message of compelled action that it represents,”
including numerous articles in well-known publications around the United States
and listings of the slogan as among the most memorable slogans of the 20th Century).
Cf. Mr. Recipe, 118 USPQ2d at 1086 (fame of JAWS motion picture for purposes of
likelihood of confusion refusal supported in part by a TV GUIDE review of the film
characterizing it as a “mega-hit” and “phenomenally successful,” and noting that it
has “entered international popular culture” and has been “endlessly parodied by
comedians and filmmakers alike;” an article on the Whatculture.com website in 2010
in which the author “characterized JAWS as an ‘instant classic;’” and other materials
in which JAWS “has repeatedly been spoken of as one of the best movies of all time
and a top grossing film.”).
The BAD MOMS motion picture and its stars received several accolades in 2016 and
2017. The film won a People’s Choice Award for “Favorite Comedy Movie,” Egan Decl.
¶ 23; Ex. 58 (31 TTABVUE 24, 34), Mila Kunis, Kristen Bell, Christina Applegate,
Opposition No. 91240829
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Kathryn Hahn, and Annie Mumolo won a CinemaCon award for “Female Stars of the
Year,” 31 TTABVUE 24, 26, and Ms. Kunis won a Jupiter Award for Best
International Actress. Id. at 24, 32. Ranker.com also listed BAD MOMS as the fifth
film in its ranking of the “Best New Comedy Movies of the Last Few Years.” Id. at 53-
54.32
BAD MOMS and its stars were also reported to have been nominated for other
awards that they did not win. Egan Decl. ¶ 23; Ex. 58 (31 TTABVUE 6, 24 (Artois
Award for Outstanding Achievement in Casting-Feature Studio or Independent
Comedy), 13-14, 24 (Guild of Music Supervisors Award for Best Music Supervision
for Films Budgeted Under $25 Million), 24, 28, 29 (Golden Trailer Award for Best
Comedy and Best Comedy TV Spot and Mila Kunis for the Women Film Critics Award
for Mommie Dearest Worst Screen Mom of the Year Award), 34 (Kristen Bell for
People’s Choice Award for Favorite Comedic Movie Actress)). There is no evidence of
nominations for an Academy Award or a Golden Globes award. Cf. Mr. Recipe, 118
USPQ2d at 1087 (fame of JAWS motion picture for likelihood of confusion refusal
shown in part by the fact that it “‘received an Academy Award nomination for best
picture, and its ominous soundtrack by John Williams won an Oscar.’” (quoting
ENCYCLOPAEDIA BRITANNICA)).

32 A BAD MOMS CHRISTMAS was listed as the 25th best. 31 TTABVUE 57. The ranker.com
website also contained links to “The All-Time Best Comedy Movies,” “History’s Greatest Cult
Comedies,” and “The Funniest Movies Ever Made,” id. at 53, but pages accessible through
those links are not in the record.
Opposition No. 91240829
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The accolades for BAD MOMS again suggest that it was commercially successful
and popular, but they do not support a finding that it was recognized as an iconic film
by July 28, 2017. Cf. Mr. Recipe, 118 USPQ2d at 1086-87 (evidence showed that
motion picture JAWS was so well-known “that it set the standard for summer
blockbusters.”).
D. Registration of the BAD MOMS Mark
As discussed above, Opposer owns three registrations of its BAD MOMS mark,
and “[e]ach mark registered on the Principal Register as an inherently-distinctive
mark without resort to Section 2(f) or subject to a disclaimer.” TiVo Brands, 129
USPQ2d at 1112. Ordinarily, this would “favor[ ] a finding of dilution fame,” id., but
it does not do so here because all three registrations issued on September 18, 2018,
long after Applicant’s filing date,33 and none covers the goods (motion pictures) for
which Opposer claims dilution fame by July 28, 2017 by virtue of common law use.
E. Conclusion Regarding Fame of the BAD MOMS Mark
None of the four non-exclusive factors probative of whether Opposer’s BAD MOMS
mark is famous supports such a finding. We find that Opposer falls far short of
showing that by July 28, 2017, BAD MOMS had “become a ‘household term [with]
which almost everyone is familiar.” Id.

33 Only one of the registrations claimed use of the BAD MOMS mark prior to July 28, 2017.
Kimbrough Decl. ¶ 8; Ex. 35 (26 TTABVUE 31).
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F. Conclusion Regarding Opposer’s Likelihood of Dilution Claim
Because Opposer cannot satisfy the threshold requirement of fame under Section
43(c), its likelihood of dilution claim necessarily fails, and we dismiss Opposer’s
Section 43(c) claim against both applications.
V. Opposer’s Likelihood of Confusion Claim
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits the registration
of a mark that “[c]onsists of or comprises a mark which so resembles a mark
registered in the Patent or Trademark Office, or a mark or trade name previously
used in the United States by another and not abandoned, as to be likely, when used
on or in connection with the goods of the applicant, to cause confusion, or to cause
mistake, or to deceive.”
A. Priority
In an opposition under Section 2(d), priority “may arise from a prior registration,
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
rights.” DeVivo v. Ortiz, 2020 USPQ2d 10153, at *3 (TTAB 2020) (citing Herbko Int’l
Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002)). “To
establish priority, the mark must be distinctive, inherently or otherwise, and Opposer
must show proprietary rights in a mark as to which Applicant’s mark gives rise to a
likelihood of confusion.” Id. (citing Otto Roth & Co. v. Universal Foods Corp., 640 F.2d
1317, 209 USPQ 40, 43-45 (CCPA 1981)).
Opposition No. 91240829
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Opposer argues that it has priority based on its pleaded registrations and prior
pending intent-to-use applications, and its prior rights under common law. 48
TTABVUE 24-28. At the oral hearing, Opposer’s counsel argued that there were
multiple “paths” to priority involving Opposer’s registrations of BAD MOMS and BAD
DADS and Opposer’s pending application to register BAD MOMS in Class 33, as well
as Opposer’s use of BAD MOMS in connection with entertainment-related goods and
services relating to the motion pictures themselves, and other goods and services.
Applicant does not directly address the issue of Opposer’s priority on any basis.
We agree with Opposer that “[a]t most, Applicant – in the context of addressing her
intent in adopting her marks – questions whether Opposer used BAD MOMS on a
series of motion pictures prior to the date she filed the Applications.” 53 TTABVUE
9 (citing 49 TTABVUE 23). In that regard, Applicant argues that “a film or motion
picture is considered a single creative work and must be refused registration under
§§ 1, 2, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, and 1127,” 49
TTABVUE 23, with the “exception being if the title is used in a series of creative
works” and that the “second motion picture Bad Moms Christmas released November
2017, therefore, the BAD MOMS application for motion picture services could not be
considered a series until after the second movie was advertised or promoted, which
occurred after Applicant applied for its [sic] two marks.” Id.
1. Opposer’s Pleaded Registrations and Prior Pending
Applications
We start on the path to priority on which the footing is the surest. As discussed
above, Opposer made of record three valid and subsisting registrations of BAD
Opposition No. 91240829
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MOMS in standard characters for “cosmetics,” “all-purpose carrying bags,” and
“beverageware, bottle stoppers specifically adapted for use with wine bottles, coasters
not of paper or textile, cocktail shakers, flasks, and water bottles sold empty.”34
Because “Opposer properly made of record its valid and subsisting pleaded
registrations and Applicant did not counterclaim to cancel them, priority is not at
issue for the marks and the goods . . . identified in each individual registration.” New
Era, 2020 USPQ2d 10596, at *9 (citing King Candy, Inc. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 82 USPQ 108 (CCPA 1974)).
As discussed above, Opposer also made of record two applications filed on January
27, 2017 to register BAD MOMS in standard characters for numerous alcoholic
beverages in Class 33 and for special events planning for social entertainment
purposes in Class 41. Opposer’s Class 41 application has become abandoned, 48
TTABVUE 24, but its Class 33 application remains pending.35 Opposer may rely on

34 Opposer also made of record, and therefore established priority through, its registration of
BAD DADS for beer, but we will focus on Opposer’s rights in the BAD MOMS mark. If we
find a likelihood of confusion as to the BAD MOMS mark for any of the goods identified in
Opposer’s three registrations of the mark and pending application to register it, or as to any
of the goods for which Opposer has priority at common law, “we need not find it as to
Opposer’s [BAD DADS registration]; conversely, if we do not find a likelihood of confusion as
to Opposer’s [BAD MOMS] mark . . . we would not find it as to Opposer’s other registered
mark[ ] [BAD DADS].” New Era Cap Co. v. Pro Era, LLC, 2020 USPQ2d 10596, at *9-10
(TTAB 2020).
35 This intent-to-use application was assigned to Opposer as part of the settlement of
litigation with Bad Moms, LLC in the United States District Court for the Southern District
of Florida. Kimbrough Decl. ¶ 16, Ex. 42 (26 TTABVUE 573). Section 10(a)(1) of the
Trademark Act prohibits the assignment of an intent-to-use application prior to the filing of
an amendment to allege use or a statement of use unless the assignment is “to a successor of
the business of the applicant, or portion thereof, to which the mark pertains, if that business
is ongoing and existing,” 15 U.S.C. § 1060(a)(1), but Applicant has not challenged the bona
fides of the assignment.
Opposition No. 91240829
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the January 27, 2017 filing date of that application for purposes of proving priority
as to the goods identified in the application. Compagnie Gervais Danone v. Precision
Formulations LLC, 89 USPQ2d 1251, 1253 (TTAB 2009) (citing Larami Corp. v. Talk
to Me Programs Inc., 36 USPQ2d 1840, 1845 n.7 (TTAB 1995) (constructive use
provisions of Section 7(c) may be used defensively or offensively, but judgment is
contingent upon the ultimate issuance of a registration)).
2. Opposer’s Alleged Common Law Priority
The footing on Opposer’s second claimed path to priority is somewhat slipperier.
Opposer argues that it “has prior rights based on its use of BAD MOMS as a
trademark prior to Applicant’s filing date for the Applications or first use date.” 48
TTABVUE 24. In its brief, Opposer points to its promotion and theatrical release of
the BAD MOMS motion picture in 2016; the licensing of the BAD MOMS mark for use
in cross-promotions in 2016 and 2017; the release of BAD MOMS on DVD and Blu-Ray
and through online streaming in November 2016;36 and its use of the BAD MOMS
mark “for special event planning for social entertainment purposes and beverageware
and related goods before July 28, 2017.” Id. at 24.

36 Opposer acknowledges that the “title of a single work cannot be inherently distinctive,” 48
TTABVUE 26 n.3, and that trademark rights in a title spring from its use in a series of works.
53 TTABVUE 9. See Herbko, 64 USPQ2d at 1378-79; Mattel, Inc. v. Brainy Baby Co., 101
USPQ2d 1140, 1142-43 (TTAB 2011). The use of BAD MOMS as the title of the film when it
was theatrically released and when it was released on and through other media is not use of
BAD MOMS in a “series” of works. Id. at 1142-43 (use of LAUGH & LEARN mark as title of
VHS tape and DVD containing the same featured program was not use of the mark in
connection with a “series” of works despite the addition of minor enhancements in the DVD).
Cf. In re Posthuma, 45 USPQ2d 2011, 2014 (TTAB 1998) (use of title of a theatrical production
not registrable as a mark despite variations in the work stemming from live performances).
Opposition No. 91240829
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With respect to the use of BAD MOMS “for special event planning for social
entertainment purposes and beverageware and related goods” before July 28, 2017,
“priority can be shown for goods given away as promotional items,” DeVivo, 2020
USPQ2d 10153, at *10 (citations omitted), and we find that Opposer established use
of the BAD MOMS mark at common law on promotional glassware, plastic bottles,
and cosmetics prior to Applicant’s filing date.37 Opposer’s claimed use of BAD MOMS
for “special event planning for social entertainment purposes,” 48 TTABVUE 24, is
based solely on Ms. Kimbrough’s testimony that “Opposer first used BAD MOMS for
special event planning for social entertainment purposes in September 2016.”
Kimbrough Decl. ¶ 10. This statement lacks any detail as to how and to whom the
claimed services were rendered, and is not corroborated by any documentary
evidence, and we find that it is insufficient to establish prior common law rights in
the BAD MOMS mark for those services. See Kemi Organics, LLC v. Gupta, 126
USPQ2d 1601, 1607 (TTAB 2018) (oral testimony of a single witness may suffice to
show priority, but only if it is sufficiently probative).
Opposer also argues that it “has made of record evidence establishing that BAD
MOMS as used for motion pictures had acquired distinctiveness well before Applicant
filed the Applications,” and that it “promoted A Bad Moms Christmas well before
Applicant filed the Applications, such that Opposer used the BAD MOMS mark in a

37 We find that BAD MOMS is inherently distinctive when used in connection with the goods
for which it has been registered, see, e.g., New Era, 2020 USPQ2d 10596, at *10 (“Opposer’s
mark is inherently distinctive as evidenced by its registration on the Principal Register
without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act”), and
the similar goods for which we find priority of use at common law.
Opposition No. 91240829
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series before Applicant’s priority date.” 53 TTABVUE 9. As noted above, Opposer
acknowledges that the title of a single work cannot be inherently distinctive, but
argues that this principle “does not apply to the BAD MOMS mark which has been
used in a series of works, namely, Bad Moms and A Bad Moms Christmas,” 48
TTABVUE 26 n.3, citing federal district court cases in which priority of use of film
title marks was established through pre-release publicity. Opposer thus appears to
argue both that it used the claimed BAD MOMS mark in connection with a series of
works even though A BAD MOMS CHRISTMAS, the second film in the series, was not
released until November 2017, and that BAD MOMS “acquired distinctiveness as of
July 28, 2017.” Id. at 26.
The Federal Circuit’s decision in Herbko sets forth the legal principles that govern
our analysis of whether Opposer proved that it acquired proprietary rights in the
BAD MOMS mark for motion pictures prior to Applicant’s July 28, 2017 filing date.
In Herbko, the respondent owned a registration of the mark CROSSSWORD
COMPANION and design for crossword puzzle systems. The petitioner sought
cancellation under Section 2(d) on the ground that the respondent’s mark was
confusingly similar to the petitioner’s claimed CROSSWORD COMPANION mark for
crossword puzzle books. Petitioner’s claim turned on whether it had priority based on
use of the claimed mark as a book title.38 The Board granted summary judgment to

38 The rule that the title of a single creative work cannot serve as a source identifier and is
not registrable also applies to the titles of films and other creative works. See TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) Section 1202.08 (July 2021) and cases cited
therein.
Opposition No. 91240829
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the petitioner on the ground that its sales of CROSSWORD COMPANION books in
1993, prior to the respondent’s application filing date in June 1994, followed by sales
of a second volume of the books in 1995, established priority because the use in 1993
“constituted a non-technical trademark use that [the petitioner] perfected when it
subsequently published a second volume in 1995.” Herbko, 64 USPQ2d at 1377. In
reversing the Board’s decision on appeal because it failed to consider a critical
element of priority, the Federal Circuit described the Board’s rationale as follows:
“[T]he proprietary rights for the title of the book series date back to the beginning of
the series (i.e., to the date of the first volume in the series) if the second volume in
the series is published within a reasonable time.” Id. at 1378.
The Federal Circuit held that the Board’s analysis was “contrary to this court’s
precedent,” which “clearly requires not only timeliness, but also that [the petitioner]
use the mark in a manner reasonably expected to create an association between the
mark and its goods.” Id. The court noted that its precedent “clearly holds that the
title of a single book cannot serve as a source identifier,” id. (citing In re Cooper, 254
F.2d 611, 117 USPQ 396, 399-400 (CCPA 1958)), and that the “publication of a single
book cannot create, as a matter of law, an association between the book’s title (the
alleged mark) and the source of the book (the publisher).” Id. Accordingly, “if a later
party uses or applies for a trademark before the creation of a series (i.e., before
publication of a second volume), the proprietary rights for the series title date back
to the first volume of the series only if the second volume is published within a
reasonable time with a requisite association in the public mind.” Id. at 1378-79
Opposition No. 91240829
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(emphasis in original). Proof of such an association “requires more than publication
of a single [work].” Id. at 1379.
The Federal Circuit found that the petitioner “did not provide evidence of a second
volume before [respondent’s] 1994 [intent-to-use] application,” and thus had to rely
“on the 1993 sales of its first CROSSWORD COMPANION volume to show the
required association between the CROSSWORD COMPANION mark and its puzzle
books.” Id. The court noted that the petitioner’s sales of its book in 1993 had been
very substantial, but held that “[e]ven sales of a large number of copies of a single
work cannot create a source identifying association in the public mind unless this
court abandons its precedent that a single work cannot serve as a source identifier.”
Id. The court concluded that “[b]ecause sales of a single book title are insufficient to
create proprietary rights and because [the petitioner] provided no other evidence of
association creating activities (e.g., use of mark as trade name), the Board erred in
holding [the petitioner] established priority to the mark.” Id.
Herbko forecloses Opposer’s argument that the title of the BAD MOMS film
acquired distinctiveness as Opposer’s mark prior to Applicant’s filing date. 48
TTABVUE 26-28 & n.3.39 The Federal Circuit held in Herbko that “the title of a single

39 Opposer cites several federal district court cases for the proposition that “[t]itles of motion
pictures that are widely promoted and commercially successful are often found to have
acquired secondary meaning.” 48 TTABVUE 27 (citing Tri-Star Pictures Inc. v. Unger, 14 F.
Supp. 2d 339 (S.D.N.Y. 1998); Paramount Pictures Corp. v. Dorney Park Coaster Co., 698 F.
Supp. 1274 (E.D. Pa. 1988); Morgan Creek Prods. Inc. v. Capital Cities/ABC Inc., 1991 WL
352619 (C.D. Cal. Oct. 28, 1991)). These cases granted relief on claims for trademark
infringement and unfair competition under Section 43(a) of the Lanham Act, which is
“outside the Board’s jurisdiction,” Fiat Grp. Autos., 94 USPQ2d at 1116 n.8, and does not
apply in Board inter partes cases.
Opposition No. 91240829
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[work] cannot serve as a source identifier,” that “the publication of a single [work]
cannot create, as a matter of law, an association between the [work’s] title (the alleged
mark) and the source of the [work],” Herbko, 64 USPQ2d at 1378, and that “this
court’s precedent has treated all single works, such as single book titles, as
‘inherently descriptive’ at best and ‘inherently generic’ at worst.” Id. at 1379 (citing
Cooper, 117 USPQ at 399-400). The court noted, consistent with the civil unfair
competition cases that Opposer cites, that “[w]hile titles of single works are not
registrable, they may be protected under section 43(a) of the Lanham Act upon a
showing of secondary meaning,” id. at n.2, but did not apply that principle to the issue
of the petitioner’s priority in the registrability dispute before the court. Opposer thus
cannot establish priority of use of the BAD MOMS mark in the title of the film BAD
MOMS by showing that the mark had acquired distinctiveness by July 28, 2017.
At the same time, however, Herbko does not foreclose Opposer’s argument that it
used the BAD MOMS mark “in a series of works, namely, Bad Moms and A Bad Moms
Christmas,” 48 TTABVUE 26 n.3, even though the second work in the putative series
was not released until after July 28, 2017. We read Herbko to permit Opposer to
acquire prior rights in the BAD MOMS mark for motion pictures through its use in the
titles of the two films if (1) the A BAD MOMS CHRISTMAS sequel was released within a
reasonable time after BAD MOMS, and (2) prior to Applicant’s July 28, 2017 filing date,
Opposer engaged in “association creating activities” (beyond the theatrical release of
BAD MOMS itself) sufficient to create an association “between the [film’s] title (the
alleged mark) and the source of the [film].” Herbko, 64 USPQ2d at 1379.
Opposition No. 91240829
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The BAD MOMS motion picture was released theatrically on July 29, 2016, Egan
Decl. ¶ 8, and the sequel A BAD MOMS CHRISTMAS was released theatrically on
November 1, 2017, Egan Decl. ¶ 10, about 15 months later. Taking into account all
that is involved in the production of a motion picture, including the “greenlighting”
and financing of a film, story and script development, casting, photography, editing,
and pre-release advertising and promotion, we find that the sequel A BAD MOMS
CHRISTMAS was released within a reasonable time after BAD MOMS.40
The production and anticipated November 2017 release of the sequel A BAD MOMS
CHRISTMAS was announced and publicized within five months after the release of BAD
MOMS, and well in advance of Applicant’s filing of her applications. As discussed
above, the media coverage of the sequel in December 2016, May 2017, and June 2017
associated the sequel A BAD MOMS CHRISTMAS with both the BAD MOMS film and
Opposer, its producer, by noting that the two films had common direction and
production, displaying scenes from BAD MOMS, making references to Mila Kunis,
Kristen Bell, and Kathryn Hahn as the “Bad Moms,” and explaining the extension of
the storyline in BAD MOMS into A BAD MOMS CHRISTMAS, in which the star “trio must
deal with the stresses of their own mothers visiting for the holidays,” Egan Decl. ¶ 9;
Ex. 44 (28 TTABVUE 112), and in which “the moms are fighting back against holiday

40 Indeed, it appears that A BAD MOMS CHRISTMAS may have been released on something of
an expedited timetable for a sequel, as one commentator on the announcement of the
production of a sequel stated that “we will be getting a true Bad Moms sequel sooner than
we had thought,” Egan Decl. ¶ 9; Ex. 42 (28 TTABVUE 128) (December 27, 2016 FORBES
article), and another article stated that the “second film came together incredibly fast.” Egan
Decl. ¶ 22; Ex. 57 (30 TTABVUE 203) (November 20, 2017 LOS ANGELES TIMES article).
Opposition No. 91240829
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stress and the expectation of making the season perfect for their families.” Egan Decl.
¶ 9; Ex. 44 (28 TTABVUE 143). The publicity also displayed scenes from the trailer
for A BAD MOMS CHRISTMAS and provided links so that consumers could view the
trailer online.
We find that the availability of the trailer is particularly significant. Unlike the
DVD and Blu-Ray editions of BAD MOMS, the trailer for A BAD MOMS CHRISTMAS, the
precursor to the full-length film, is itself a separate and distinct work that uses the
BAD MOMS title. Even if we do not view the trailer as the second work in the series of
BAD MOMS films, its availability and the other publicity of the sequel show that prior
to Applicant’s July 28, 2017 constructive use date, the consuming public was aware
that a sequel to BAD MOMS entitled A BAD MOMS CHRISTMAS, originating from the
same source as the original film, was at least figuratively “in the can.” As noted above,
the association of the two films with each other and Opposer is evidenced by media
coverage of the progress of the production of the sequel, access to the sequel’s trailer
and information about the roles to be played both by the original stars and new
characters played by Susan Sarandon, Cheryl Hines, and Christine Baranski, and
others, and depictions and descriptions of some of the film’s scenes. Egan Decl. ¶ 9;
Ex. 44 (28 TTABVUE 157). We find that this exposure, coupled with Opposer’s
publicity of the sequel, created an association “between the [film’s] title (the alleged
[BAD MOMS] mark) and [Opposer as] the source of the [film].” Herbko, 64 USPQ2d
at 1379.
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“[I]f a term has been used to identify the source of a series of creative works, it
functions as a trademark, and the fact that it may also be included in the title of each
work does not destroy its source-originating function.” Mattel, 101 USPQ2d at 1142.
We find that Opposer established priority of use of the BAD MOMS mark for motion
pictures because Opposer used the mark in a series of films consisting of BAD MOMS
and A BAD MOMS CHRISTMAS, and the “proprietary rights for the series title date back
to the first volume of the series” in 2016. Herbko, 64 USPQ2d at 1379.
3. Summary of Findings on Priority
We have found that Opposer proved, by a preponderance of the evidence, that it
has priority of use of the BAD MOMS mark for (1) the goods identified in Opposer’s
three registrations of, and one pending application to register (contingent on ultimate
registration), its BAD MOMS mark, (2) motion pictures, and (3) glassware, plastic
bottles, and cosmetics.
B. Likelihood of Confusion
Our determination of the likelihood of confusion under Section 2(d) of the
Trademark Act is based on an analysis of all probative facts in the record that are
relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). We
consider each DuPont factor for which there is evidence and argument. See, e.g., In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019).
“[O]pposer has the burden of proving a likelihood of confusion by a preponderance of
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the evidence.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994,
2020 USPQ2d 10341, at *3 (Fed. Cir. 2020).
Two key DuPont factors in every Section 2(d) case are the first two factors
regarding the similarity or dissimilarity of the marks and the goods or services,
because the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect
of differences in the essential characteristics of the goods and differences in the
marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976). Both parties address these two key factors at length. 48
TTABVUE 28-32, 39-40; 49 TTABVUE 11-21; 53 TTABVUE 10-16. One or both of the
parties also address the third factor, the “similarity or dissimilarity of established,
likely-to-continue trade channels,” DuPont, 177 USPQ at 567, 48 TTABVUE 40-41,
49 TTABVUE 20-21; the fourth factor, the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing,” DuPont,
177 USPQ at 567, 48 TTABVUE 42-43; the fifth and sixth factors, the “fame of the
prior mark (sales, advertising, length of use),” and the “number and nature of similar
marks in use on similar goods,” DuPont, 177 USPQ at 567, 48 TTABVUE 32-38, 49
TTABVUE 15-16, 21-25, 51 TTABVUE 16-20; the eighth factor, the “length of time
during and conditions under which there has been concurrent use without evidence
of actual confusion,” DuPont, 177 USPQ at 567, 48 TTABVUE 43-44; the ninth factor,
the “variety of goods on which a mark is or is not used (house mark, ‘family’ mark,
product mark),” DuPont, 177 USPQ at 567, 48 TTABVUE 44-45; and the thirteenth
factor, “[a]ny other established fact probative of the effect of use,” DuPont, 177 USPQ
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at 567, under which the parties debate whether Applicant acted in good faith in
adopting her marks. 48 TTABVUE 41-42, 49 TTABVUE 22-23; 53 TTABVUE 17.
1. The Strength or Weakness of Opposer’s BAD MOMS Mark
We begin with the fifth and sixth DuPont factors, both of which address the
strength or weakness of Opposer’s BAD MOMS mark, because they potentially bear
on the extent of protection to which it is entitled. We may consider these factors in
tandem, Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB
2017), and doing so here makes particular sense because the parties are sharply at
odds on them, with Opposer arguing under the fifth factor that the BAD MOMS mark
is famous and strong, 48 TTABVUE 32-34, and Applicant arguing under the sixth
factor that “BAD MOMS is relatively weak.” 49 TTABVUE 20.
a. Strength of Opposer’s Mark
“In determining the strength of a mark, we consider both its inherent strength,
based on the nature of the mark itself, and, if there is evidence in the record of
marketplace recognition of the mark, its commercial strength.” New Era, 2020
USPQ2d 10596, at *10 (citations omitted). As noted above, the BAD MOMS mark is
inherently distinctive for the goods for which it has been registered on the Principal
Register, and for the similar goods for which we have found priority of use at common
law, and we agree with Opposer that BAD MOMS is suggestive for a series of motion
pictures humorously depicting the stresses of motherhood.
“Commercial strength or fame is the extent to which the relevant public recognizes
a mark as denoting a single source.” New Era, 2020 USPQ2d 10596, at *10. If such
commercial strength or fame exists, it “plays a dominant role in the likelihood of
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confusion analysis because famous marks enjoy a broad scope of protection or
exclusivity of use.” Id. “Because of the extreme deference that we accord a famous
mark in terms of the wide latitude of legal protection it receives,” and the “dominant
role fame plays in the likelihood of confusion analysis, it is the duty of the party
asserting that its mark is famous to clearly prove it.” Id.
We have found above that Opposer’s BAD MOMS mark is not famous for purposes
of its dilution claim, but that finding does not preclude a showing that it is famous
under the fifth DuPont factor because “[t]he commercial strength or fame of a mark
is not a binary factor in the context of a likelihood of confusion analysis.” Id.
(citing Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122
USPQ2d 1733, 1734 (Fed. Cir. 2017)). “While dilution fame is an either/or
proposition—fame either does or does not exist—likelihood of confusion fame varies
along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, 122
USPQ2d at 1734 (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed Cir. 2005)). “[A] mark
can acquire ‘sufficient public recognition and renown to be famous for purposes of
likelihood of confusion without meeting the more stringent requirement for dilution
fame.’” Coach Servs., 101 USPQ2d at 1724 (quoting 7-Eleven, 83 USPQ2d at 1722).
As the Board recently reiterated,
[c]ommercial strength or fame may be measured
indirectly by the volume of sales and advertising
expenditures in connection with the goods or services sold
under the mark, and supported by other indicia such as
length of time of use of the mark; widespread critical
assessments; notice by independent sources of the goods or
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services identified by the marks; and the general
reputation of the goods or services.
New Era, 2020 USPQ2d 10596, at *10-11. Other factors may include market share,
licensing activities, and the variety of goods on which a mark is used. Coach Servs.,
101 USPQ2d at 1720. Unlike on Opposer’s dilution claim, evidence that post-dates
July 28, 2017 is relevant to our analysis of strength under the fifth DuPont factor.
See Gen. Mills, Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1595 n.13
(TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB Jan. 22,
2014) (evidence of fame considered up to the time of trial).
Opposer argues that the BAD MOMS mark is commercially strong because the
films “were both box office smashes, and STX expended $23 million and $20 million
to promote the theatrical release of the movies, respectively,” and because the films
“have grossed approximately $44 million in revenues from domestic sales of the Bad
Moms Motion Pictures through physical home media and approximately $31 million
in revenues from domestic cable and internet video-on-demand and electronic sell
through.” 48 TTABVUE 32-33. As on its dilution claim, Opposer also cites its
promotional agreements, media coverage, accolades, and social media following for
the films, as well as Applicant’s admissions during discovery that BAD MOMS and A
BAD MOMS CHRISTMAS was each “well recognized in the U.S. as a title of a movie,”
and Opposer’s enforcement efforts. Id. at 33-34.
Applicant does not directly address the fifth DuPont factor, but does discuss the
fame of the BAD MOMS mark in the section of her brief directed to Opposer’s dilution
claim. Applicant acknowledges that the BAD MOMS “movie title was heavily promoted
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in 2016 and 2017,” 49 TTABVUE 24, but argues that “since then, [it] has not been
largely advertised or promoted, as is typical in the motion picture industry.” Id.
Applicant also argues that “[w]ith new movies constantly being released, the
consumer is conditioned to move on to the next big movie,” id., and that “[w]ith BAD
MOMS, while the Opposer made reference to advertising and revenue of it’s [sic] BAD
MOM movies, that does not in and of itself equal fame or public recognition.” Id.
Applicant concludes that “Opposer’s unregistered BAD MOMS mark for motion
picture services, has not risen to the level of fame, a level reserved for a very select
few trademarks.” Id. at 25.
As noted above, under the fifth DuPont factor we may consider Opposer’s post-
July 28, 2017 circumstantial evidence of strength. That is a double-edged sword for
Opposer, however, because Opposer must prove that its mark was famous as of the
time of trial, which began in early November 2019 and ended in October 2020, even
if it was better known in 2016 and 2017, when the two films were in theaters and
were the subject of Opposer’s promotional activities. Cf. TiVo Brands, 129 USPQ2d
at 1113 (fame for dilution purposes must be shown both when the challenged use
began and “at the time the claim is adjudicated”).
In addition to the $26 million spent in 2016 in support of the theatrical and home
entertainment releases of BAD MOMS, Egan Decl. ¶¶ 8, 20; Ex. 55 (29 TTABVUE 181),
Opposer spent slightly more than $20 million in 2017 and in January and February
2018 in support of the theatrical and home entertainment releases of A BAD MOMS
CHRISTMAS. Egan Decl. ¶¶ 9, 20; Ex. 55 (29 TTABVUE 181). The record shows no
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advertising or promotional expenditures of any sort for either film after mid-February
2018.41 Opposer’s intense bursts of advertising from May-December 2016, June-
December 2017, and January-February 2018, followed by no further advertising, do
not involve the sort of sustained advertising that has been found in other cases to
support a finding of fame under Section 2(d). See Bose Corp. v. QSC Audio Prods.,
Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1306 (Fed. Cir. 2002) (fame of ACOUSTIC
WAVE mark supported by annual advertising expenditures of more than $5 million
over the 17 years of use of the mark prior to 2002); Omaha Steaks Int’l, Inc. v. Greater
Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690 (Fed. Cir. 2018) (fame
of OMAHA STEAKS mark supported by advertising expenditures of $45 million in
2011 and over $50 million in 2012 and 2013); AutoZone Parts, Inc. v. Dent Zone Cos.,
100 USPQ2d 1356, 1361-62 (TTAB 2011) (fame of AUTOZONE mark supported by
advertising expenditures of over $750 million during 23-year period of use). Opposer’s
advertising and promotional expenditures do not support a finding of significant
commercial strength of the BAD MOMS mark at the time of trial.
In addition to the $113 million domestic box office revenues for BAD MOMS, Egan
Decl. ¶ 8, A BAD MOMS CHRISTMAS grossed $72 million at the box office in the United

41 In the dilution portion of its reply brief, Opposer argues that it has made of record “evidence
reflecting its continued promotion of the Bad Moms Motion Pictures to the present date.” 53
TTABVUE 21. Opposer cites the facts that the films “are available to stream on Amazon
Prime and their soundtracks are available to stream on Spotify,” that it “continues to use the
social media profiles associated with the Motion Pictures,” that it “has announced that it is
producing a third movie in the franchise entitled Bad Moms’ Moms,” and that it “has engaged
in significant policing activities well after the theatrical release of A Bad Moms Christmas.
Id. (citations omitted). These are not promotional or advertising activities per se, and we
address them separately below.
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States. Egan Decl. ¶ 10. Boxofficemojo.com reported the film’s weekly box office
revenues and rankings vis-à-vis other films as follows:

Egan Decl. ¶ 8; Ex. 43 (28 TTABVUE 79). A BAD MOMS CHRISTMAS was reported to
be in the top ten films in box office revenues for the first month of its run in theaters,
but, like BAD MOMS, it gradually declined in the rankings after its release, to the point
where by Christmas week of 2017, it was ranked 28th in weekly gross revenues. The
reported figures suggest that A BAD MOMS CHRISTMAS was less successful than BAD
MOMS.
Mr. Egan testified that as of December 2019 the two films in the BAD MOMS series
had grossed a total of about $75 million in the United States from physical home
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media and cable and Internet video-on-demand and electronic sell through. Egan
Decl. ¶ 14. These non-box office revenues suggest ongoing exposure of the films after
the end of the theatrical run of A BAD MOMS CHRISTMAS in early January 2018 and
thus some degree of continuing awareness of the BAD MOMS mark when trial began
in early November 2019. We do not know, however, exactly when during that period
these revenues were realized, or how they compare to those generated by other films
released in 2016 and 2017, by well-known films generally, or even by other films
produced by Opposer, such as THE FOREIGNER, I FEEL PRETTY, and MOLLY’S GAME.
Egan Decl.¶ 5.
When a party’s sales and advertising numbers are large enough, the Federal
Circuit has “tended to accept them without any further supporting proof,” Bose, 63
USPQ2d at 1306, but neither Opposer’s box office revenues nor its non-box office
revenues are so large in absolute terms as to be probative of fame without some
context vis-à-vis other films available for viewing in theaters in 2017 and for home
viewing in 2018 and 2019. See id. (summarizing sales and advertising figures in cases
in which marks have been found to be famous under Section 2(d); see also Promark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1245 (TTAB 2015) (“When the
numbers are large, they may suffice to prove fame for likelihood of confusion
purposes, assuming relevant contextual indicators support that conclusion.”). The
absence of such context is particularly important here given the relatively ephemeral
nature of most of the numerous films released each year. Without such context,
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Opposer’s total box office and non-box office revenue figures have limited probative
value in establishing the fame of Opposer’s mark as of the time of trial.
Opposer’s other circumstantial evidence of fame similarly has limited probative
value. As noted above, we have no information regarding any revenues realized by
Opposer at any time under its licensing and promotional agreements. Opposer’s social
media webpages are hearsay when offered to show the number of Opposer’s followers
and the extent of viewing of the films on social media as of June 2019. The awards
for the BAD MOMS film and its stars were received in 2016 and 2017, long before trial
commenced.
The cited media coverage of the two films themselves appears mostly to have
ended in November 2017, about two years before trial, with reviews of A BAD MOMS
CHRISTMAS and reports of its early box office revenues. Egan Decl. ¶ 22; Ex. 57 (30
TTABVUE 70-292). One of the reviews dated November 1, 2017 and entitled THE
ENDURING ALLURE OF THE BAD MOMS, 30 TTABVUE 250-54, discusses the two films
in the series and states that when BAD MOMS hit the theaters, “it became a cultural
phenomenon” and “resonated big,” that “the ticket-purchasing population of America
agreed wholeheartedly,” that BAD MOMS first weekend gross of $23 million “was
incredibly impressive for a movie with an R-rating,” id. at 251, and that “[t]he sequel,
A Bad Moms Christmas, hits theaters this weekend and only expands on everything
the first installment did.” Id. at 252. An article dated November 7, 2017 reported that
A BAD MOMS CHRISTMAS was #2 at the box office for the previous weekend, behind
Disney’s THOR: RAGNAROK. Id. at 257-58. Another article dated November 6, 2017
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reported that for the period October 30-November 5, 2017, the box office headlines
were dominated by THOR: RAGNAROK and that “the US counterprogramming entry
Bad Moms Christmas made its early November start in second place.” Id. at 270-71.
An article in VARIETY dated February 16, 2018 reported that A BAD MOMS CHRISTMAS
“debuted at No. 1 on both national home video sales charts the week ended Feb. 10.”
Id. at 124-25.
There is post-November 2017 coverage of the possibility of an unscripted Bad
Moms television series on Fox, id. at 199-202, 216-17,42 an undated article discussing
the home entertainment release of A BAD MOMS CHRISTMAS, id. at 220-21, a December
31, 2018 article entitled “The 10 best Christmas movies on Amazon Prime Video for
2018,” which included A BAD MOMS CHRISTMAS among those movies, id. at 43-52, an
undated article on familyeducation.com, which includes A BAD MOMS CHRISTMAS as
among the “Top 10 Chick Flicks to Watch This Holiday Season,” id. at 59-67, and a
December 15, 2017 article in TIME entitled “The Best Christmas Movies to Watch
Right Now and All Season Long” that lists A BAD MOMS CHRISTMAS among them and
among the “Best Christmas Movies of 2017” (but not among the “Best Christmas
Movies of All Time” or the “Best Funny Christmas Movies”). Id. at 68-75.
There are also several articles regarding Opposer’s April 2019 announcement of
the production of a third film in the BAD MOMS series identified as BAD MOMS’ MOMS.

42 A FORBES article in October 2016 similarly reported that Opposer was “going forward with
‘a series of film spin-offs, a reality television show, short form digital content, and a robust
consumer products program.’” Egan Decl. ¶ 22; Ex. 57 (30 TTABVUE 240). There is no
evidence in the record that the television series was ever produced.
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Id. at 76-109.43 Most of the articles referenced the success of BAD MOMS in 2016 and
were generally positive in their treatment of the film and its sequel. Although one
stated that “the first Bad Moms may not have been great, and the inevitable holiday
sequel, A Bad Moms Christmas, may have been worse to endure,” id. at 78
(avclub.com), others noted that Bad Moms “was one of those comedies that studios
love to see” because it was produced on a modest budget and was commercially
successful, id. at 79 (cinemablend.com), and called BAD MOMS “a soaring success,” id.
at 84 (bustle.com), “a hit for STX,” id. at 87 (ew.com), a “surprise success,” id. at 89
(flickeringmyth.com), a “surprise hit,” id. at 91 (hnentertainment.com), a “huge
moneymaker for STX” together with A BAD MOMS CHRISTMAS, id. at 93
(moviefone.com), “a giant sleeper hit back in 2016,” id. at 97 (movieweb.com), part of
a “popular franchise,” id. at 100 (purewow.com), a “surprise hit back in 2016,” id. at
101 (reeltalkinc.com), “an unexpected summer box office success,” id. at 105
(variety.com), and part of “the most consistent franchise for STX since the first film
debuted in 2016.” Id. at 108) (yahoo.com).
Unlike most of the articles reviewing or discussing BAD MOMS in 2016 and 2017,
however, most of the 2019 articles focusing on a third film in the series did not appear
in general circulation publications such as FORBES and USA TODAY, but rather on
websites that appear to be directed to the motion picture business specifically or the
entertainment industry generally. There is no evidence in the record regarding the

43 There is no evidence in the record that this film was ever produced. Several of the articles
also noted that there were no developments regarding the BAD DADS project and that it
appeared to have been shelved.
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extent of any exposure of these articles to the movie-going public at large. This
significantly reduces their probative value as evidence that the BAD MOMS mark
was as familiar to consumers when trial began in November 2019 as it may have been
in 2016 and 2017, when the films were more widely discussed. Considered in its
entirety, the media coverage of the two films in the series from 2016 to 2019 does not
support a finding that the BAD MOMS mark was famous in November 2019.
With respect to Opposer’s enforcement efforts, Opposer successfully pursued
infringement claims against uses of Bad Moms Fitness for CDs and digital media,
Kimbrough Decl. ¶ 14; Ex. 39 (26 TTABVUE 145-217), and Bad Moms LLC for a
Facebook page, 26 TTABVUE 218-25, and the use and registration of BAD MOMS
and the use of the trade name Bad Moms, LLC for various goods in Classes 33 and
41. Kimbrough Decl. ¶ 16; Exs. 41-42 (26 TTABVUE 324-573). Opposer also obtained
a default judgment in Opposition No. 91247104 to a use-based application to register
BAD MOMS BLURB for on-line journals, namely, blogs featuring tips and tricks for
single dating women. Kimbrough Decl. ¶ 15; Ex. 40 (26 TTABVUE 236-323). As the
Federal Circuit recently explained, however, the fame inquiry “is focused on whether
the mark has achieved ‘extensive public recognition and renown,’ not on enforcement
efforts.” Omaha Steaks, 128 USPQ2d at 1693 (finding that the Board’s error in
refusing to take judicial notice of 20 lawsuits filed by the opposer was “thus
harmless.”) (quoting Coach Servs., 101 USPQ2d at 1720). Opposer appears to have
succeeded in limiting third-party uses of BAD MOMS as a mark, but that tells us
little or nothing about the fame of the mark at the time of trial.
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Finally, we consider Opposer’s reliance on Applicant’s discovery responses served
in October 2018, more than a year before trial began, in which she admitted that “Bad
Moms” and “A Bad Moms Christmas” are each “well recognized in the U.S. as the title
of a movie.” 24 TTABVUE 232 (Applicant’s Responses to Opposer’s Request for
Admission Nos. 43-44). The pertinent requests sought admissions that “[t]he motion
picture Bad Moms is famous” and “[t]he motion picture A Bad Moms Christmas is
famous.” Id. Applicant did not go that far, qualifying her responses with objections
that “[f]amous is for the Trademark Trial and Appeal Board to decide” and that “[i]n
determining whether a trademark possesses the requisite degree of recognition, the
court considers all relevant factors.” Id. (emphasis in original). Applicant’s responses
do not admit the fame of Opposer’s BAD MOMS mark for likelihood of confusion
purposes. See Lacoste Alligator S.A. v. Maxoly, Inc., 91 USPQ2d 1594, 1597 (TTAB
2006) (finding that “opposer’s mark is famous for purposes of likelihood of confusion”
based on applicant’s admission in its answer that the “opposer’s alligator design is a
famous trademark” because “it would be unduly prejudicial to require more evidence
from opposer in light of applicant’s admission”); see also Nike, 100 USPQ2d at 1021
& n.7 (applicants’ admission that “Opposer’s mark ‘JUST DO IT’ is famous” supported
a finding that they “have admitted that opposer’s mark is famous of likelihood of
confusion purposes.”); Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1751
(TTAB 2006) (applicant’s admission that the STARBUCKS mark “was well known to
the general public and famous for coffee and retail store services featuring coffee prior
to the filing date of his application” supported a finding of fame for likelihood of
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confusion purposes). Applicant’s admissions do support a finding that the BAD
MOMS mark was famous for motion pictures as of 2018, much less as of November
2019.
The record as a whole shows that the BAD MOMS mark for motion pictures was
strongest before 2018 because Opposer’s advertising and promotion of the films, their
exposure to the movie-going public, and their coverage in the media, were all
concentrated in the years 2016 and 2017. The mark’s exposure to the movie-going
public waned thereafter because Opposer did not engage in any subsequent
advertising and promotion under the mark, and the residual viewing of the films on
home media was not shown to be sufficiently extensive relative to that of other films
to cause the BAD MOMS mark to remain top-of-mind for the movie-going public. We
find that on the “spectrum from very strong to very weak,” Joseph Phelps Vineyards,
122 USPQ2d at 1734, the BAD MOMS mark for motion pictures retained only modest
strength at the time of trial. The fifth DuPont factor thus slightly supports a finding
of a likelihood of confusion.
b. The Number and Nature of Similar Marks in Use on
Similar Goods and Services
The sixth DuPont factor “considers ‘[t]he number and nature of similar marks in
use on similar goods.’” Omaha Steaks, 128 USPQ2d at 1693 (quoting DuPont, 177
USPQ at 567). “The purpose of introducing evidence of third-party use is ‘to show that
customers have become so conditioned by a plethora of such similar marks that
customers have been educated to distinguish between different [such] marks on the
bases of minute distinctions.’” Id. (quoting Palm Bay Imps., 73 USPQ2d at 1694).
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Third-party uses may bear on the commercial weakness of a mark, Tao Licensing,
LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017), and may be
“relevant to show that a mark is relatively weak and entitled to only a narrow scope
of protection.” Omaha Steaks, 128 USPQ2d at 1693 (quoting Palm Bay Imps., 73
USPQ2d at 1694). Applicant argues that she “produced proof of third party common
law trademark use of BAD MOMS as associated with a number of different goods and
services,” that “[n]umerous social groups, organizations, articles, and merchandise
companies all use BAD MOMS to promote, offer and sell their goods and services,”
and that “[t]here is such widespread commercial use of the term ‘bad moms’,
consumers could not possibly believe all the goods and services associated with the
respective third parties, emanate from Opposer.” 49 TTABVUE 15.
Third-party registrations “may bear on conceptual weakness if a term is commonly
registered for similar goods or services,” Tao Licensing, 125 USPQ2d at 1057, but not
a mark’s commercial strength. Applicant argues that she “provided as evidence,
numerous third party registrations where a movie title was registered for motion
picture services and similar, even identical marks were allowed to register for non-
related goods or services.” 49 TTABVUE 16. She argues that the “numerous
registrations of same or similar trademarks, specifically movie titles for motion
picture services, show the Trademark Office has a history of allowing the marks to
coexist so long as the goods or services are not related, and movie titles are not
afforded any special status.” Id.
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We begin with Applicant’s third-party registration evidence. As Applicant
acknowledges, these registrations do not involve marks containing the words BAD
MOMS (or even BAD or MOMS), but rather are groups of marks consisting of or
containing the words ICE AGE, BEAUTY & THE BEAST, TITANIC, JAWS, FAST &
FURIOUS, FROZEN, IRON MAN, ALLADIN, BLACK PANTHER, SPECTRE,
SKYFALL, THE HANGOVER, and MONSTER, all of which are, or are part of, the
titles of motion pictures. 34 TTABVUE 12-39. These third-party registrations have
no probative value regarding the conceptual weakness of the BAD MOMS mark
because they do not contain any elements of the mark. In re Embiid, 2021 USPQ2d
577, at *37 (TTAB 2021) (holding that pairs of registrations of the marks COBRA and
SOLE “do not show that an element of the cited TRUST THE PROCESS mark is
conceptually weak because the registered COBRA and SOLE marks do not contain
any such element.”).
Applicant’s third-party use evidence consists of webpages and articles that
Applicant claims are “numerous examples of BAD MOMS used as a common law
trademark on goods similar to goods recited in Opposer’s registrations in classes 03,
18 and 21.” 49 TTABVUE 21-22. Applicant argues that “[n]umerous social groups,
organizations, articles, and merchandise companies all use BAD MOMS to promote,
offer and sell their goods and services,” and that there is “such widespread
commercial use of the term ‘bad moms’, consumers could not possibly believe all the
goods and services associated with the respective third parties, emanate from
Opposer.” Id. at 15. According to Applicant, the “genie is out of the bottle, ‘bad moms’
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has taken on a life of its own,” id., and “[t]his evidence establishes that BAD MOMS
is relatively weak.” Id. at 22.
The third-party uses include:
Facebook pages of the “Bad Moms of Long Island” and “The
Bad Moms Club,” 34 TTABVUE 54;
Etsy, Redbubble, Spreadsheet, and Bonfire webpages
showing various garments displaying the words “Bad
Moms Club,” “Bad Moms Squad,” or “Bad Moms Club,” and
“Official Merchandise” of the “Bad Moms Hudson Valley
Shop,” id. at 55, 63, 65;
The radio.com website, which references a “bad moms
podcast,” id. at 55;
A page from the eventbrite.com website referring to an
October 19, 2019 event entitled “Bad Moms Do Target,” id.
at 56;
Pages from theatltantic.com referring to articles entitled
“What it Means to Be a Bad Mom,” id. and “When Bad
Moms Get Book Deals,” id. at 62;
A page from goodhousekeeping.com referring to an article
entitled “Estrangement Doesn’t Just Happen to ‘Bad’
Moms-It Happened to Me Too,” id. at 57;
The title of the book The Bad Moms Club and a couple of
paragraphs from the book, resulting from a Google search
on the term “bad moms,” id.;
A page from abcnews.go.com with the headline “Real-life
‘Bad Moms’ are embracing imperfections, redefining what
it means to be a ‘good mother,’” id. at 58;
A page from marvel.com with the headline “6 Bad Moms of
the Marvel Universe,” id.;
A page from theparentcue.org with the headline “How Bad
Moms Can Get a Win,” id. at 59;
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A page from parenthood.com with the headline
“Confessional Tweets From ‘Bad’ Moms” above a picture of
Kristen Bell, id.;
A page from realclearpolitics.com with the headline “The
Data ‘Bad Moms’ Need,” id. at 60;
A page from rockawaytimes.com with the headline “‘Bad
Moms of Rockaway’ is Anything But Bad,” id.;
A page from moonshineink.com with the headline “Bad
Moms” accompanied by a picture of numerous women and
children, id. at 61;
A page from scottsdale.momcollective.com with the
headline “We Are All ‘Bad Moms’ (And That’s A Good
Thing),” id.;
A page from the website of the CBS affiliate in San Diego
(cbs8.com) with the headline “Join ‘Bad Moms’ to help
serve the homeless,” id. at 62;
A page from pinterest.com, id. at 64; and
A page from herviewfromhome.com with the headline
“Confessions of a ‘Bad’ Mom.” Id.
Opposer argues that “[n]one of the screenshots are probative of third-party use or
the strength of the BAD MOMS Marks, particularly because, in large part, Applicant
has not made of record any evidence that the uses at issue have been well promoted
or generated any appreciable consumer recognition.” 48 TTABVUE 35. Opposer offers
multiple critiques of this evidence, id. at 35-38, which we discuss below.
Opposer argues that “certain of Applicant’s cropped screenshots omit information
specifically tying the use of ‘Bad Moms’ to the Bad Mom [sic] Motion Pictures.” Id. at
35. Opposer supports this argument with evidence from its Rebuttal Notice of
Reliance consisting of full printouts of Internet webpages cited by Applicant. 45
TTABVUE 492-532. We agree with Opposer that in the articles from abcnews.go.com,
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id. at 508-11, and scottsdale.momcollective.com, id. at 525-26, the term “Bad Moms”
is expressly associated with the motion picture. We also agree with Opposer that
given the promotion of Bad Moms through materials touting the “Bad Moms
Sweepstakes” and the “Bad Moms Night In,” it is more likely than not that the
Eventbrite event reference to “Bad Moms Do Target” shown below would be
understood by viewers and participants as a reference to the motion picture:

34 TTABVUE 56. Finally, as noted above, and as shown below, the article on the
parenthood.com website also associates the term “bad mom” with the BAD MOMS
motion picture through the depiction of Kristen Bell in character beneath the
headline “Confessional Tweets From ‘Bad’ Moms”:
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Id. at 59.44 These uses reinforce, rather than detract from, the association of the BAD
MOMS mark with Opposer and its films.
Opposer also argues that “many of Applicant’s alleged third-party uses are non-
trademark uses of the phrase ‘bad moms’ in the titles of articles,” including “What It
Means to Be a Bad Mom; Estrangement Doesn’t Just Happen to ‘Bad’ Moms – It
Happened to Me Too; 6 Bad Moms of the Marvel Universe; How Bad Moms Can Get a
Win (article undated); When Bad Moms Get Book Deals; and Confessions of a ‘Bad’
Mom (article undated and author identified as residing in Australia),” 48 TTABVUE
36, that “[s]imilarly, the article The Data ‘Bad Moms’ Need on realclearpolitics.com

44 Opposer argues that this webpage and the one from radio.com are no longer on line. 48
TTABVUE 36. Even if this is true, the pages were online at the time of trial, and we have
considered them for whatever probative value they may have. In that regard, the radio.com
webpage displays the term “bad moms podcast” in a red, black, and white color scheme that
is reminiscent of the color scheme of the promotional materials for the BAD MOMS and A BAD
MOMS CHRISTMAS motion pictures, 34 TTABVUE 55, suggesting that viewers would
associate the webpage with the films.
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uses ‘bad moms’ in a non-trademark sense,” id. at 37, and that “[s]uch non-trademark
uses do not narrow the protection afforded to the BAD MOMS Marks.” Id. at 36.
We agree with Opposer that the referenced articles do not appear to use the terms
“Bad Moms” or “Bad Mom” as source-identifiers. These uses, which are not in
connection with goods or services, much less ones that are similar to the goods and
services at issue in this case, see Omaha Steaks, 128 USPQ2d at 1693-95, have no
probative value regarding the strength of Opposer’s BAD MOMS mark.
With respect to what Opposer calls four “‘Bad Moms’ organizations/groups,” 48
TTABVUE 37, Opposer argues that “to the extent that they are making trademark
use of their group names, they infringe Opposer’s rights, and Opposer has the right
to proceed against them as it has other infringers,” id. at 37-38,45 as it has pursued a
claim against the operator of the Bad Moms organization referenced in the article
entitled “Join ‘BAD Moms’ to help serve the homeless on cbs.com, who agreed to cease
use of the term “BAD Moms.” Kimbrough Decl. ¶ 12; Ex. 39 (26 TTABVUE 218-25).
Opposer’s characterization of the four uses as infringements begs the question of
what, if anything, Opposer has done to stop them, and on this record they stand
unchallenged.
Finally, with respect to the “Bad Moms” garments displayed on the pages from
etsy.com, redbubble.com, spreadshirt.com, and bonfire.com, Opposer argues that
“[t]hese are all print-on-demand websites, which means there is no inventory of

45 In that regard, Opposer notes that a “Bad Moms Club” collection on Pinterest has “a modest
number of followers (310)” and that there is little additional information about the collection.
48 TTABVUE 38.
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products bearing these terms,” 48 TTABVUE 38, and that “Applicant has not made
of record any evidence that these ornamental uses have resulted in actual sales or
generated any appreciable consumer recognition.” Id. We agree with Opposer that
these snapshots of merchandise have little probative value regarding the commercial
weakness of Opposer’s BAD MOMS mark.
The record as a whole shows very few pertinent source-identifying uses of “Bad
Moms” in connection with goods or services, and Applicant’s evidence thus is a “far
cry from the large quantum of evidence of third-party use and third-party registration
that was held to be significant in” the Federal Circuit’s seminal decisions in Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v, New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015) and Juice Generation, Inc.
v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015). Embiid, 2021
USPQ2d 577, at *39-40 (quoting In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746
(TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)). We find that the sixth
DuPont factor is neutral in our analysis of the likelihood of confusion.
2. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider “the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imps., 73 USPQ2d at 1691. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Inn at St. John’s,
126 USPQ2d at 1746 (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
The proper test regarding similarity “is not a side-by-side comparison of the
marks, but instead whether the marks are sufficiently similar in terms of their
Opposition No. 91240829
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commercial impression such that persons who encounter the marks would be likely
to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., 101 USPQ2d
at 1721 (internal quotation marks and citation omitted)). “The proper perspective on
which the analysis must focus is on the recollection of the average customer, who
retains a general rather than specific impression of marks.” In re i.am.symbolic, llc,
127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted).
Opposer argues that “Applicant copied the BAD MOMS mark in its entirety,” 48
TTABVUE 29, and that “‘[l]ikelihood of confusion is often found where the entirety of
one mark is incorporated within another.’” Id. (quotation omitted). Opposer further
argues that “Applicant cannot void the similarity between the marks by appending
the word UNLIMITED and BIBLE to BAD MOMS” because “Applicant uses the
entirety of the BAD MOMS mark as the first and dominant portion of her mark.” Id.
According to Opposer, “the terms BIBLE and UNLIMITED are sonically, visually,
and conceptually subordinate to the BAD MOMS portion of Applicant’s marks,” id. at
30, and “[i]n essence, Applicant is attempting to register a BAD MOMS family of
marks.” Id. (emphasis removed).46 Opposer also points to its own “frequent use of

46 “A family of marks is a group of marks having a recognizable common characteristic,
wherein the marks are composed and used in such a way that the public associates not only
the individual marks, but the common characteristic of the family, with the trademark
owner.” New Era, 2020 USPQ2d 10596, at *7 (quoting J & J Snack Foods Corp. v. McDonald’s
Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891-92 (Fed. Cir. 1991)). “Simply using a series of
similar marks does not of itself establish the existence of a family. There must be a
recognition among the purchasing public that the common characteristic is indicative of a
common origin of the goods.” Id. (quoting J & J Snack Foods, 18 USPQ2d at 1891. There is
no evidence in the record regarding Applicant’s use of her marks in a manner that would
establish a “family” with two members.
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BAD MOMS, or permutations thereof, followed by other words,” such as A BAD
MOMS CHRISTMAS, BAD MOMS NIGHT OUT, and BAD MOMS BOOK CLUB. Id.
Opposer claims that “the immediate connotation of BAD MOMS BIBLE is a [sic] the
preeminent and authoritative publication or compendium of information regarding
Bad Moms or the Bad Moms Motion Pictures.” Id. Opposer also notes that the USPTO
has found a likelihood of confusion between the marks in two of Opposer’s pending
applications and the BAD MOMS UNLIMITED mark. Id. at 31.
Applicant responds that “the mere fact that the marks in issue share elements,
even dominant elements, does not compel a conclusion of likely confusion.” 49
TTABVUE 11. Applicant argues that “[t]he marks at issue in this proceeding share
words in common, however, the appearance of Applicant’s marks are distinguished
by the addition of non-descriptive words BIBLE and UNLIMITED, which changes
the appearance, sound, and meaning.” Id. at 12. Applicant acknowledges that the
“marks at issue in this proceeding share words in common, however, the appearance
of Applicant’s marks are distinguished by the addition of non-descriptive words
BIBLE and UNLIMITED, which changes the appearance, sound, and meaning.” Id.
With respect to the meaning of her marks, Applicant argues that “the word BAD
refers to the slang or alternative definition of the word bad (bad meaning very good,
great, or excellent),” while the “word BIBLE is meant to connote a book or in
Applicant’s case, a resource considered authoritative in it’s [sic] field, or the ultimate
resource for moms in need of financial assistance,” and the “the word UNLIMITED
is meant to connote ultimate or unrestricted as applied to the various goods sold
Opposition No. 91240829
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under the mark in classes 09, 16 and 25.” Id. Applicant also argues that “the
examining attorney reviewed the entire mark BAD MOMS BIBLE and BAD MOMS
UNLIMITED against all of Opposer’s thirteen applications for BAD MOMS and
BADMOMLIFE and correctly determined no likelihood of confusion,” id. at 13,
apparently because Applicant’s mark BAD MOMS UNLIMITED was cited as a
potential bar to only two of the applications.
Applicant further argues that “MOMS is disclaimed in both marks, making BAD
and BIBLE the more dominant or source indicating features of the marks.” Id. at 14.
According to Applicant, “the common element, BAD MOMS is weak and descriptive
of Opposer’s services, specifically in the application for motion picture services,
featuring a movie about bad moms,” id. at 15, and that the weakness of the term is
further demonstrated by Applicant’s “proof of third party common law trademark use
of BAD MOMS as associated with a number of different goods and services,” id.,
which we discussed above.
In its reply brief, Opposer argues that Applicant’s claim that the USPTO reviewed
Applicant’s marks against “all of Opposer’s thirteen applications for BAD MOMS and
BADMOMLIFE” and found no likelihood of confusion is misleading because Opposer
filed its applications after Applicant filed her applications. 53 TTABVUE 10. Opposer
reiterates that two of its applications were refused registration based on Applicant’s
prior BAD MOMS UNLIMITED application. Id. Opposer also argues that Applicant
“cannot reasonably dispute that BAD MOMS is the dominant portion of its BAD
MOMS formative marks” because “BAD MOMS leads both marks, and BAD modifies
Opposition No. 91240829
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MOMS, such that BAD will not be construed alone but with MOMS.” Id. Opposer
notes that Applicant “neither responds to nor rebuts Opposer’s showing that its BAD
MOMS mark is commonly used with other words, e.g., BAD MOMS CHRISTMAS,
BAD MOMS SWEEPSTAKES,” such that “consumers are accustomed to seeing
Opposer’s BAD MOMS mark used with additional terms appended thereto.” Id. at 11.
With respect to Applicant’s arguments regarding the slang meaning of the word
“bad” in Applicant’s marks, Opposer argues that Applicant has not shown that she
uses the word in accordance with the slang definition, that the public would view the
mark as being used in accordance with the slang definition, or that the word means
something different in Opposer’s BAD MOMS mark. Id. at 11-12.
While the marks must be considered in their entireties, “‘in articulating reasons
for reaching a conclusion on the issue of confusion, there is nothing improper in
stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties.’” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
1047, 1050 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985)). We agree with Opposer that the term BAD MOMS is the
dominant portion of both of Applicant’s marks. The term is the first portion in each
mark when it is viewed, heard, spoken, and recalled, and in each mark its position as
“the first term in the mark” helps to establish its prominence. In re Aquitaine Wine
USA, LLC, 126 USPQ2d 1181, 1185 (TTAB 2018) (citing Palm Bay Imps., 73 USPQ2d
at 1682). See also Detroit Athletic Co., 128 USPQ2d at 1049 (“The identity in the
Opposition No. 91240829
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marks’ initial two words is particularly significant because consumers typically notice
those words first.”); Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be impressed
upon the mind of a purchaser and remembered.”). The fact that Applicant is seeking
to register two marks that both begin with BAD MOMS and end with different words
reinforces that BAD MOMS is the primary source-identifying feature of both marks,
the portion “most likely to make a greater impression upon purchasers, to be
remembered by them, and to be used by them to request the goods [and services].”
Aquitaine Wine USA, 126 USPQ2d at 1184 (citing In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012)). We turn now to the required comparison
of the marks in their entireties, giving greater weight in that comparison to the words
BAD MOMS in Applicant’s marks than to the words BIBLE and UNLIMITED.
With respect to appearance, Applicant’s marks incorporate Opposer’s BAD MOMS
mark in its entirety with the addition of the words BIBLE and UNLIMITED,
respectively. Applicant’s BAD MOMS BIBLE and BAD MOMS UNLIMITED marks
are standard character marks, and thus “could be used in any typeface, color, or size,
including the same stylization actually used or intended to be used by [Opposer], or
one that minimizes the differences or emphasizes the similarities between the
marks.” Anheuser-Busch, Inc. v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1823
(TTAB 2015) (citing Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1258-59 (Fed. Cir. 2011)). Mr. Egan testified that he had reviewed
Applicant’s website, which he claimed uses “BAD MOMS in much larger font than
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the word UNLIMITED, and therefore emphasizes the mark BAD MOMS” in
connection with clothing, notebooks, calendars, and magnets. Egan Decl. ¶ 31.47
Applicant also produced confidential documents displaying hangtags and other
materials pertaining to her BAD MOMS UNLIMITED mark in which the words BAD
MOMS are combined into “BADMOMS” and are displayed in typeface that is
considerably larger than the word UNLIMITED. 25 TTABVUE 30.
Because Applicant’s marks are standard character marks, we must assume that
both of them could be displayed in (1) the manner described by Mr. Egan, (2) the
manner in which they are displayed on Applicant’s hangtags and other materials, (3)
some other manner in which the words BAD MOMS are displayed in what Mr. Egan
described as Opposer’s “color palettes and design motifs,” Egan Dec. ¶ 12, an example
of which is shown below,

Egan Decl. ¶ 12, or (4) in some combination of these manners. All such possible
displays would “minimize[ ] the differences or emphasize[ ] the similarities between

47 Because Applicant did not object to Mr. Egan’s testimony regarding Applicant’s website on
the ground that it violates the Best Evidence Rule codified in Rules 1001-1008 of the Federal
Rule of Evidence, which generally requires that to prove the content of a “writing,” the
original writing or an acceptable duplicate must be provided, we have considered his
testimony for whatever probative value it may have.
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the marks.” Anheuser-Busch, 115 USPQ2d at 1823. We find that the marks are
similar in appearance.
With respect to sound, Applicant’s marks BAD MOMS UNLIMITED and BAD
MOMS BIBLE begin with the dominant portion BAD MOMS, which would be
verbalized in exactly the same manner as Opposer’s BAD MOMS mark. There are
aural differences between the marks resulting from the presence of additional words
at the end of Applicant’s marks, but they are outweighed by the similarities resulting
from the dominant words BAD MOMS. We find that the marks are similar in sound.
Finally, with respect to meaning, Applicant’s argument that the word BAD (and
thus the dominant phrase “Bad Moms”) in her marks means something different from
what it means in Opposer’s mark is based solely on the argument of her counsel,
which “is no substitute for evidence.” Coca-Cola Co. v. Meenaxi Enter., Inc., 2021
USPQ2d 709, at *6 (TTAB 2021), appeal docketed (Aug. 9, 2021) (quoting Cai, 127
USPQ2d at 1799).48 The record, including some of the third-party uses discussed
above, suggests that the phrase “Bad Moms” was given its greatest currency in the
vernacular by Opposer’s use of it in 2016 and 2017 in the titles of BAD MOMS and A
BAD MOMS CHRISTMAS, and in collateral uses such as “Bad Moms Night Out” and
“Bad Moms Night In.” Regardless of exactly how the phrase is understood, there is
no evidence in the record suggesting that it would be understood to mean one thing

48 Applicant relies on a dictionary definition of the word “bad” as slang for “very good,
excellent” in certain contexts, 34 TTABVUE 68, but even if this is what Applicant intended
the word to mean in her marks, there is no competent evidence that this is how the word
would be perceived.
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in Opposer’s mark and something else in Applicant’s marks. Cf. Embiid, 2021
USPQ2d 577, at *20. There are differences in the meanings of the marks when they
are considered in their entireties, but we find that they are outweighed by the
similarities resulting from the use of the dominant phrase BAD MOMS at the
beginning of Applicant’s marks.
The marks BAD MOMS, and BAD MOMS UNLIMITED and BAD MOMS BIBLE,
are similar in appearance, sound, and connotation and commercial impression when
they are considered in the entireties, and the first DuPont factor supports a finding
of a likelihood of confusion against both applications.
3. Similarity or Dissimilarity of the Goods and Services, and
Channels of Trade
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,” Detroit Athletic
Co., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ at 567),49 while the third
DuPont factor considers “the similarity or dissimilarity of established, likely-to-
continue trade channels.’” Id. at 1052 (quoting DuPont, 177 USPQ at 567). See also
Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161-63 (Fed. Cir. 2014).

49 The ’487 Application covers multiple goods in three classes, while the ’298 Application
covers multiple services in a single class. To prevail as to an entire class in each application,
Opposer need not show that there is a likelihood of confusion as to each of the identified goods
or services because likelihood of confusion must be found as to an entire class if it exists as
to any good or service within the identification in that class. Primrose Ret. Cmtys., LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
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a. Similarity or Dissimilarity of the Goods and Services
The goods identified in the ’487 Application are:
Audio books in the field of parenting, self-help, careers and
education; Decorative magnets; Downloadable mobile
applications for social networking, resource and
information on parenting, self-help, careers and education;
E-books featuring information on parenting, self-help,
careers and education recorded on computer media;
Prerecorded audio tapes featuring information on
parenting, self-help, careers and education; Prerecorded
digital audio tape featuring information on parenting, self-
help, careers and education; Sunglasses; Visual and audio
recordings featuring information on parenting, self-help,
careers and education, in Class 9;
Adhesive-backed cast PVC film for wrapping commercial
vehicles for advertising or other promotional purposes;
Adhesive labels; Art pictures; Binders; Booklets in the field
of parenting, self-help, careers and education; Brochures
about parenting, self-help, careers and education; Bumper
stickers; Business cards; Calendars; Canvas for painting;
Canvas for printing; Catalogs in the field of parenting, self-
help, careers and education; Greeting cards; Letterhead
paper; Magazines in the field of parenting, self-help,
careers and education; Manuals in the field of instructional
information on parenting, self-help, careers and education;
Memory books; Newsletters about parenting, self-help,
careers and education; Note books; Note cards; Pamphlets
in the field of parenting, self-help, careers and education;
Paper banners; Paper labels; Paper for wrapping and
packaging; Picture books; Post cards; Posters; Printed
invitations; Printed paper signs; Prints; Song books;
Stationery; Stickers; Story books; Art prints; Cardboard
boxes; Gift bags; Gift boxes; Graphic art prints;
Informational flyers featuring information on parenting,
self-help, careers and education; Merchandise bags; Paper
bags; Paper boxes; Photo storage boxes, in Class 16; and
Aprons; Baby bibs not of paper; Caps being headwear;
Costumes for use in role-playing games; Coverups;
Dresses; Halloween costumes; Hats; Head wear;
Headbands; Hoodies; Infant and toddler one piece clothing;
Jackets; Jumpsuits; Leg-warmers; Leggings; Lingerie;
Opposition No. 91240829
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Pajamas; Pants; Ponchos; Robes; Rompers; Scarves; Shirts;
Shoes; Shorts; Skirts; Slippers; Socks; Sweatpants;
Sweatshirts; Swimwear; T-shirts; Ties as clothing;
Underwear; Uniforms; Visors being headwear; Wristbands
as clothing; Clothing wraps, in Class 25.
The services identified in the ’298 Application are:
Charitable foundation services, namely, providing
financial assistance for programs and services of others;
Charitable foundation services, namely, providing
financial support to mothers in need for payment of
educational costs, pregnancy and prenatal costs, childcare
costs, utility bills and obtaining medications; Charitable
fundraising services; Charitable fundraising services by
means of a website where donors search for and make
monetary donations to specific charities or projects aimed
at helping mothers in need; Charitable fundraising
services by means of selling goods to raise funds, in Class
36.
We have found above that Opposer proved priority with respect to (1) “cosmetics,”
“all-purpose carrying bags,” and “beverageware, bottle stoppers specifically adapted
for use with wine bottles, coasters not of paper or textile, cocktail shakers, flasks, and
water bottles sold empty,” the goods identified in its three registrations, and the
various alcoholic beverages in its prior-pending Application Serial No. 87315506; (2)
motion pictures, and (3) glassware, plastic bottles, and cosmetics, the goods for which
Opposer used the BAD MOMS mark at common law.
“The goods need not be identical, but ‘need only be related in some manner and/or
if the circumstances surrounding their marketing are such that they could give rise
to the mistaken belief that they emanate from the same source.’” Embiid, 2021
USPQ2d 577, at *22 (quoting Coach Servs., 101 USPQ2d at 1722.
Evidence of relatedness may include news articles or
evidence from computer databases showing that the
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relevant goods are used together or used by the same
purchasers; advertisements showing that the
relevant goods are advertised together or sold by the same
manufacturer or dealer; or copies of prior use-based
registrations of the same mark for both [A]pplicant’s goods
and the goods listed in [Opposer’s] registration[s].
Id. (quoting In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *5 (TTAB 2020)). The
same type of evidence is probative of the relatedness of goods to services. In re
Country Oven, Inc., 2019 USPQ2d 443903, at *4-5 (TTAB 2019).50
i. ’487 Application
Opposer argues that the goods identified in the ’487 Application “are closely
related, if not identical, to goods offered by Opposer under the BAD MOMS Marks,”
48 TTABVUE 39, because “before the filing date of the Applications, Opposer used
the BAD MOMS Marks for motion pictures, music recordings, DVDs, Blu[-]Rays,
coasters, and beverageware,” and since then Opposer “has used the BAD MOMS
marks for, inter alia, cosmetics, all-purpose carrying bags, t-shirts, hoodies, aprons,
postcards, phone cases, ornaments, paper napkins, hats, and underwear.” Id. (citing
Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 74-156)).51

50 When the issue is the relatedness of goods to services, the Federal Circuit has held that
“‘something more’ than that the service at issue uses the product at issue may be required in
any context where ‘the relatedness of the goods and services is not evident, well-known or
generally recognized.’” Country Oven, 2019 USPQ2d 443903, at *12 (quoting In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1087 (Fed. Cir. 2014)).
51 Opposer improperly relies on its ownership of pending applications covering magnets and
physical and downloadable media in a variety of formats, and goods in Class 25, which were
filed after the filing date of Applicant’s applications. 48 TTABVUE 39. As discussed below,
we have considered Opposer’s actual use of its BAD MOMS mark on certain of the goods
identified in these applications in our analysis under the second and third DuPont factors.
Opposition No. 91240829
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Mr. Egan testified that “[b]oth Applicant and Opposer sell women’s apparel
bearing the words ‘BAD MOMS’,” and that the goods are “targeted at the same set of
consumers, and both sell inexpensive apparel offered for sale to the general public,”
Egan Decl. ¶ 31, and that there is “also overlap between Applicant’s Class 9 goods,
which include ‘visual and audio recordings,’ and Opposer’s Class 9 goods, which
include ‘audio-visual recordings,’ ‘downloadable video recordings,’ and ‘prerecorded
electronic media.’” Egan Decl. ¶ 32. Opposer did not make of record any of the types
of evidence of relatedness listed in the cases discussed above, or argue that the goods
identified in its three registrations and one prior pending application, and the goods
identified in the ’487 Application, are intrinsically related on the face of the respective
identifications.
Applicant argues that
A consumer is not likely to presume . . . BAD MOMS
UNLIMITED for goods are related, in any manner, to
Opposer’s marks for motion picture services, it’s [sic] movie
title BAD MOMS or it’s [sic] goods sold under BAD MOMS.
Compared, Applicant’s goods . . . are not related to
Opposer’s goods and services, with the exception of BAD
MOMS UNLIMITED mark in classes 09 and 25.
49 TTABVUE 18.52
Applicant “once again points to evidence of registrations where a movie title exists
for motion picture services, and similar or even identical registrations coexist having

52 Applicant’s statement regarding “the exception of BAD MOMS UNLIMITED mark in
classes 09 and 25” appears to be a reference to the fact that the examining attorney assigned
to Opposer’s pending applications to register BAD MOMS in Classes 9 and 25 cited
Applicant’s application to register BAD MOMS UNLIMITED as a potential bar to
registration. See Kimbrough Decl. ¶¶ 9, 21.
Opposition No. 91240829
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dissimilar goods or services. See Notice of Reliance, Exhibit A.” Id. at 20. As discussed
above, these registrations have no probative value under the sixth DuPont factor, but
they may be considered under the second DuPont factor. See Embiid, 2021 USPQ2d
57, at *37 (citing G.B.I. Tile & Stone, Inc., 92 USPQ2d 1366, 1369-70 (TTAB 2009)
(stating that in the ex parte context, “applicants may submit sets of third-party
registrations to suggest . . . that the Office has registered the same mark to different
parties for the goods at issue, suggesting that the goods are not related.”)). We have
reviewed the third-party registrations and find that the “dissimilar goods and
services” for which the film titles are registered are sufficiently different from the
goods and services involved in this case to make the third-party registrations of little
or no probative value under the second DuPont factor.53
Applicant also claims that “[c]onsumers believe movie titles are just that, movie
titles, and not trademarks used as a source indicator to identify goods and services.”
49 TTABVUE 20. Contrary to Applicant’s claim, however, the Board has recognized

53 By way of example, Applicant made of record an expired registration of JAWS for
“entertainment services-namely, the production and distribution of theatrical motion
pictures.” 34 TTABVUE 20. Such a “dead” registration has “no probative value at all,”
Embiid, 2021 USPQ2d 577, at *35 n.48 (citation omitted), but even if we considered it, the
other registrations of JAWS-formative marks are for goods identified as “Gathering utensils,
namely, twist ties made of wire encapsulated with a rubberlike sheath, ski wraps to hold a
pair of skis together for transport and made of a fabric with a fastener or a twist tie” (JAWS
TWIST TIES) 34 TTABVUE 21; “Noise suppressors for guns” (JAWS), id.; “Entertainment in
the nature of live performances by a musical solo artist” (JAWZ (stylized)), id. at 22; “machine
tools, namely, water powered nozzles for the clearing of sewers and pipes” (JAWS), id.; “pre-
recorded computer programs for use in the field of communication” (JAWS), id. at 23; “metal
ladders” (JAWS LADDER), id.; and “Athletic apparel, namely, shirts, pants, jackets,
footwear, hats and caps, athletic uniforms; Scientific and technological apparel, namely,
shirts, pants, jackets, footwear, hats and caps, uniforms” (JAWS OF LIFE, a term of art in
the field of rescue). Id. at 24.
Opposition No. 91240829
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that the consuming public has long understood that marks for entertainment
properties, such as movie titles, are commonly used as “source indicator[s] to identify
goods and services.” Id. The Board observed more than 25 years ago that “[i]t is
common knowledge and, in the present case, undisputed that video games, t-shirts,
beach towels, caps and other logo-imprinted products are used as promotional items
for a diverse range of goods and services, not to mention for specific television shows
and movies.” Turner Ent. Co. v. Nelson, 38 USPQ2d 1942, 1945 (TTAB 1996)
(granting summary judgment to owner of GILLIGAN’S ISLAND mark for
entertainment services in the nature of a television series in opposition under Section
2(d) to registration of GILLIGAN’S ISLAND for “suntan oil, suntan lotion, sunblock,
sunless tanning lotion, after sun moisturizing lotion, lip balm, hand and body lotion,
hair shampoo and body bar soap.”). The Board subsequently reiterated that “[i]t is
common knowledge, and a fact of which we can take judicial notice, that the licensing
of commercial trademarks on ‘collateral products’ has become a part of everyday life.”
L.C. Licensing, Inc. v. Berman, 86 USPQ2d 1883, 1889 (TTAB 2008) (citing Turner
Ent., 38 USPQ2d at 1945-46). We similarly take judicial notice that the licensing of
entertainment-related marks for use “on ‘collateral products’ has become a part of
everyday life,” id., and will assess the relatedness of the goods in this case against
the backdrop of the entertainment-related nature of Opposer’s BAD MOMS mark and
the consuming public’s awareness that such marks commonly appear on collateral
products.
Opposition No. 91240829
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(a) Class 25
We turn first to Applicant’s Class 25 goods, which include “T-shirts,” goods that
the Board has noted are typical collateral products “for specific television shows and
movies.” Turner Ent., 38 USPQ2d at 1945. See also In re Phillips-Van Heusen Corp.,
228 USPQ 949, 951 (TTAB 1986) (“items of clothing (especially shirts, which are
included within applicant’s identification) appear to represent a particularly natural
area for the ‘collateral product’ use of commercial trademarks . . . .”). Mr. Egan and
Ms. Kimbrough testified that Opposer has used its BAD MOMS mark on and in
connection with a variety of collateral products, including t-shirts and other apparel,
Egan Decl. ¶ 15; Ex. 52; Kimbrough Decl. ¶¶ 10-11; Ex. 37, and T-shirts bearing the
BAD MOMS mark have been sold through zazzle.com under a license from Opposer.
Egan Decl. ¶ 15; Ex. 52 (29 TTABVUE 91-96, 104-12, 127, 130-45). Although
Opposer’s use of BAD MOMS on t-shirts did not commence until some point after
Applicant’s July 28, 2017 filing date, it is probative of the relatedness of the “T-shirts”
identified in Class 25 to Opposer’s motion pictures. Cf. NASDAQ Stock Mkt., Inc. v.
Antartica S.r.l., 69 USPQ2d 1718, 1727 (TTAB 2003) (although the opposer, the
owner of the registered NASDAQ mark for stock market services, failed to show that
it “made prior use of NASDAQ for goods such as those identified in applicant’s
application, or for opposer’s collateral products that are closely related thereto,” the
Board found “nonetheless that the record establishes that opposer’s use of its mark
for collateral goods . . . has been a natural outgrowth of its business, has expanded
over time,” and contributed to the Board’s “finding of likelihood of confusion in regard
to opposer’s Section 2(d) claim based on its pleaded registration” for stock market
Opposition No. 91240829
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services). As the Board has previously observed, t-shirts have long been commonly
understood to be core collateral products for entertainment properties, as exemplified
by Opposer’s own use of its BAD MOMS mark for those goods in the course of the
expansion of its collateral licensing, and we find that the second DuPont factor
supports a finding of a likelihood of confusion as to “T-shirts” and thus as to all of the
Class 25 goods in the ’487 Application. See NASDAQ, 69 USPQ2d at 1732 (finding
under the second DuPont factor that individuals familiar with opposer, its services,
and collateral products, “when confronted with applicant’s mark used on at least
some of its identified goods, will consider such goods either to be promotional items
of opposer or products branded with opposer’s mark in conjunction with opposer’s
sponsorship of an event.”).
(b) Class 9
Unlike the broadly identified Class 25 goods, almost all of Applicant’s Class 9
goods contain a limitation to the “field of parenting, self-help, careers and education,”
including “Prerecorded audio tapes featuring information on parenting, self-help,
careers and education,” “Prerecorded digital audio tape featuring information on
parenting, self-help, careers and education,” and “Visual and audio recordings
featuring information on parenting, self-help, careers and education.” The only Class
9 goods without such a limitation are “decorative magnets” and “sunglasses.”
Opposer argues that it “owns pending applications to register BAD MOMS in,
inter alia, Class 9, including magnets and physical and downloadable media in a
variety of formats,” 48 TTABVUE 39, but as noted above, Opposer cannot rely on its
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Class 9 application, which was filed after Applicant’s July 28, 2017 filing date, and it
did not claim or prove use of its BAD MOMS mark on decorative magnets.
Mr. Egan’s testimony that there is “overlap between Applicant’s Class 9 goods,
which include ‘visual and audio recordings,’ and Opposer’s Class 9 goods, which
include ‘audio-visual recordings,’ ‘downloadable video recordings,’ and ‘prerecorded
electronic media,’” Egan Decl. ¶ 32, ignores both the field-of-use limitations in
Applicant’s Class 9 goods, and the limited nature of Opposer’s own visual and audio
recordings under the BAD MOMS mark, which featured the BAD MOMS motion
pictures and the soundtrack for BAD MOMS, Egan Decl. ¶¶ 8, 14; Ex. 48 (28 TTABVUE
296-325), and which are described in Opposer’s Class 9 application as “Audio-visual
recordings featuring entertainment in the nature of celebrity interviews, movie clips
and outtakes, and comedy performances” and “prerecorded CDs, DVDs and other
audio-visual recordings featuring motion pictures in the field of comedy.” Kimbrough
Decl. ¶ 9 (Serial No. 87562646). Opposer offers no evidence other than Mr. Egan’s
conclusory testimony that the parties’ specific types of audio and video recordings are
related, or that Opposer’s audio and video recordings are related to the goods
identified as “decorative magnets” and “sunglasses.”54 As noted above, the Board has
long recognized that marks for entertainment properties are commonly used on a
wide variety of collateral goods, but there is no recognition in our cases that such

54 As noted above, Applicant acknowledges that the Class 9 goods in the ’487 Application may
be related to the goods in Opposer’s Class 9 application. 49 TTABVUE 18 (“Applicant’s goods
and services are not related to Opposer’s goods and services, with the exception of BAD
MOMS UNLIMITED in classes 09 and 25.”). We do not view this as a concession of
relatedness because Opposer’s Class 9 application covers goods, such as “decorative magnets”
and “eyewear,” that go well beyond those as to which Opposer proved common law use.
Opposition No. 91240829
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marks are commonly used for the Class 9 goods in the ’487 Application. Cf. Parfums
de Coeur, Ltd. v. Lazarus, 83 USPQ2d 1012, 1020 (TTAB 2007) (the Board’s decision
in Turner Ent. “lists a number of items that can be considered the subject of collateral
merchandising, e.g., caps, t-shirts, beach towels, linens and glassware, but fragrance
products are not among them.”). We find that the second DuPont factor supports a
finding of no likelihood of confusion as to Class 9 in the ’487 Application.
(c) Class 16
Opposer argues that it has shown priority of use as to coasters, and that after
Applicant’s filing date, it used the BAD MOMS mark for postcards and paper
napkins, but it makes no effort to argue, and points to no evidence to show, that these
goods are related to any of Applicant’s Class 16 goods, 48 TTABVUE 39-40; 53
TTABVUE 13-14,55 and our cases do not recognize that entertainment properties are
commonly used for those goods. See Parfums de Coeur, 83 USPQ2d at 1020. We find
that the second DuPont factor supports a finding of no likelihood of confusion as to
Class 16 in the ’487 Application.
ii. ’298 Application
Opposer argues that “Applicant’s services identified in the BAD MOMS BIBLE
Application are related to goods and services offered by Opposer under the BAD
MOMS Marks,” 48 TTABVUE 39, because it “has licensed its BAD MOMS mark for
use in conjunction with charitable efforts, such as a promotional contest for A Bad

55 Opposer has no pending application to register BAD MOMS or another mark for goods in
Class 16. Kimbrough Decl. ¶ 9. Opposer’s Class 21 registration of BAD MOMS covers
“coasters, not of paper or textile.” Kimbrough Decl. ¶ 8; Ex. 35 (26 TTABVUE 31-36).
Opposition No. 91240829
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Moms Christmas organized by the Alliance of Moms which, unsurprisingly,
benefitted mothers.” Id. at 39-40 (citing Egan Decl. ¶ 35; Ex. 51 (29 TTABVUE 71-
72)). Mr. Egan and Ms. Kimbrough both opine, in almost verbatim language, that
“consumers are likely to believe that Applicant’s charitable foundation services are
related to or affiliated with Opposer’s entertainment services offered under the BAD
MOMS Marks,” and that “a consumer may believe that BAD MOMS BIBLE is a
charitable arm of the Bad Moms franchise.” Egan Decl. ¶ 35; Kimbrough Decl. ¶ 24.56
Opposer further argues that
Applicant’s own activities establish the relatedness of
Opposer’s goods with Applicant’s services. Not only does
Applicant intends [sic] to offer the goods and services under
her marks under the same BAD MOMS family of marks,
Applicant attests that she sells goods under the BAD
MOMS UNLIMITED mark to promote her BAD MOMS
BIBLE services. Applicant, thus, is precluded from arguing
that Opposer’s goods – certain of which, as noted above, are
identical to Applicant’s – are not related to Applicant’s
services.
48 TTABVUE 40.
Applicant responds that a “consumer is not likely to presume BAD MOMS BIBLE
for charitable foundation services [is] related, in any manner, to Opposer’s marks for
motion picture services, it’s [sic] movie title BAD MOMS or it’s [sic] goods sold under
BAD MOMS.” 49 TTABVUE 18. Applicant also argues that her “charitable
foundation services are not related or marketed in the same way Opposer would
advertise, promote or market it’s [sic] motion picture services or a movie.” Id. at 19.

56 As with the witnesses’ opinions as to the fame of Opposer’s mark, we give no weight to their
opinions as to relatedness.
Opposition No. 91240829
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In its reply brief, Opposer argues that
Applicant is also unable to rebut Opposer’s showing of the
relatedness of the services identified in the BAD MOMS
BIBLE Application to the goods and services offered by
Opposer under the unique circumstances of this case,
particularly given both parties market and sell their goods
and services to the same consumers – namely, women and
mothers – through the same channels of commerce.
53 TTABVUE 6. Opposer further argues that “Applicant does not dispute that
Opposer licensed its BAD MOMS mark for use conjunction with charitable efforts,
such as a promotional contest for A Bad Moms Christmas organized by the Alliance
of Moms which benefitted mothers.” Id. at 14.
Opposer’s evidence that it has used its BAD MOMS mark for the “charitable
fundraising services” identified in the ’298 Application boils down to its claimed
participation in a “promotional contest for A Bad Moms Christmas organized by the
Alliance for Moms” at some point in 2017. Egan Decl. ¶ 35; Ex. 51 (29 TTABVUE 71).
An online article describing the contest stated that for every $10 donated to the
Alliance for Moms, which was described as a charity “which works to break the
intergenerational cycle of babies born to young girls in foster care,” a donor got “a
chance to fly to Chicago with three friends, spend two nights in a hotel, meet the
amazing leading ladies of ‘A Bad Moms Christmas’ and get a $500 shopping spree.”
29 TTABVUE 71.57 The article further stated that “by combining giving with an

57 The article is undated, but refers to “the upcoming release of ‘A Bad Moms Christmas’ this
November.” 29 TTABVUE 71. Opposer did not show that its claimed use of its BAD MOMS
mark in connection with the contest was prior to Applicant’s July 28, 2017 filing date. In any
event, we find below that the contest did not involve the use of Opposer’s mark, and thus
cannot show that these “services” are related to the services identified in the ’298 Application.
Opposition No. 91240829
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awesome reward (who wouldn’t want to share a Christmas card snapshot with
Kristen Bell?), the ‘bad moms’ of Hollywood are helping these girls get the support
they need,” id. at 72, and that the Crowdrise campaign donation page was organized
by Ms. Bell. Id. The article contained a link to the trailer for A BAD MOMS CHRISTMAS.
Id.
As described in the article, the contest was organized by the Alliance for Moms
charity and the campaign website was created by Kristen Bell. Opposer’s BAD MOMS
mark is nowhere mentioned, much less used to identify the source of the contest. In
a record replete with detailed “agreements for promotions and merchandise licensing
in connection with the BAD MOMS mark,” Kimbrough Decl. ¶ 11; Ex. 37, there is no
agreement with the Alliance for Moms “allow[ing] the BAD MOMS mark to be used
in conjunction with charitable efforts.” Egan Decl. ¶ 35. We find that this contest does
not show Opposer’s use of its BAD MOMS mark in connection with charitable
fundraising services. There is no other evidence that Opposer itself ever engaged in,
or licensed the BAD MOMS mark for use in, the charitable fundraising or charitable
services identified in the ’298 Application, and no evidence that any third parties have
used or registered the same mark for both motion pictures and collateral goods, and
those services.
The relatedness of Opposer’s goods and the services identified in the ’298
Application “is not evident, well-known or generally recognized,” Country Oven, 2019
USPQ2d 443903, at *12, but Opposer makes no effort to argue that any of the goods
for which it has registered or used its BAD MOMS mark are related to those
Opposition No. 91240829
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services.58 We find that the goods and services are not related under either the
“something more” test set forth in St. Helena Hosp. or the conventional standard for
relatedness set forth in Coach Servs. The second DuPont factor supports a finding of
no likelihood of confusion as to the ’298 Application.
b. Similarity or Dissimilarity of Channels of Trade
The identifications of goods and services in Opposer’s registrations of, and prior
application to register BAD MOMS, and in Applicant’s applications, define the
channels of trade and classes of consumers for those goods and services. Stone Lion,
110 USPQ2d at 1161-62. In both Opposer’s registrations and application, and in
Applicant’s applications, “[t]here are no limitations as to channels of trade or classes
of purchasers in the identification[s] of goods [and services],” and “[i]t therefore is
presumed that [the] 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].” Id. at 1161. By contrast, the channels of trade for the
motion pictures and collateral goods on which Opposer has used its BAD MOMS mark
at common law “are limited to the actual goods and channels of trade for which it

58 We understand Opposer’s arguments quoted above that Applicant’s own activity itself
establishes the relatedness of the parties’ goods and services, 48 TTABVUE 40, to claim that
the fact that Applicant seeks registration of her marks for both her goods and her services
proves that they are related, in much the same way in which a third-party registration of the
same mark for the goods and services would be probative of relatedness. The analogy fails,
however, because Applicant does not seek to register the same mark for the goods and
services. Applicant also admitted in discovery that a “percentage of proceeds” from the sale
of goods under the BAD MOMS UNLIMITED mark would “benefit the BAD MOMS BIBLE
charity,” 24 TTABVUE 167 (Applicant’s Response to Opposer’s Interrogatory No. 13), but we
do not find this admission sufficient to show that the services identified in the ’298
Application are related to Opposer’s goods, particularly under the “something more” standard
set forth in St. Helena Hosp.
Opposition No. 91240829
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uses its mark.” Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1661 (TTAB 2014).
There is precious little record evidence of the channels of trade for any of the involved
goods and services, as both parties focus on their actual channels of trade rather than
the channels of trade for the identified goods and services.
Opposer argues only that the “parties’ goods are advertised and sold through the
same channels of commerce, specifically, the Internet and Twitter, Instagram, and
Facebook.” 48 TTABVUE 40. Applicant responds that the “lack of evidence showing
an overlap in the channels of trade for applicant’s and registrants’ [sic] products is
pivotal,” and the “goods and services offered do not travel in the same channels of
trade.” 49 TTABVUE 20. Applicant claims that “[m]others looking for financial
assistance will seek out BAD MOMS BIBLE charitable foundation services, not BAD
MOMS motion picture services,” that “consumers looking to purchase Applicant’s
goods will look to Applicant’s website, or see the goods offered for sale under the BAD
MOMS UNLIMITED mark, at charity events or programs,” and that “[d]ifferent
trade channels, as well as dissimilar conditions under which the service are offered,
makes it unlikely that there will be confusion as to source.” Id. Applicant concludes
that its “charitable foundation services and Opposer’s motion picture services move
through distinct trade channels to distinct classes of consumers, and therefore, they
are not likely to be confused as to the source of the services.” Id. at 20-21.
Contrary to Opposer’s claim, neither the Internet itself nor the various social
media are a distinct “channel of trade.” The Board has long recognized that the
“Internet is such a pervasive medium that virtually everything is advertised and sold
Opposition No. 91240829
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through the Internet,” Bond v. Taylor, 119 USPQ2d 1049, 1055 (TTAB 2016) (quoting
Parfums de Coeur, 83 USPQ2d at 1021), and that “the mere fact that goods and
services may both be advertised and offered through the Internet is not a sufficient
basis to find that they are sold through the same channels of trade.” Inter IKEA Sys.
B.V. v. Akea, LLC, 110 USPQ2d 1734, 1743 (TTAB 2014) (quoting Parfums de Coeur,
83 USPQ2d at 1021). The Board’s analysis that the sale of goods and services through
the Internet does not establish that they “are sold through the same channels of
trade,” id., applies with equal force to social media such as Twitter and Facebook,
which, like the Internet itself, are today “pervasive med[ia]” that are used to promote
all manners of goods and services. We find that the channels of trade for the involved
goods and services do not overlap merely because they are offered on the Internet and
through the parties’ respective social media accounts. Opposer makes no other
showing of the channels of trade for the goods and services identified in Applicant’s
application, or that they overlap with the channels of trade for the goods identified in
Opposer’s registrations and prior application, or for the goods with which Opposer
has used BAD MOMS at common law. We find that the third DuPont factor supports
a finding of no likelihood of confusion with respect to both applications.
4. Purchase Conditions and Sophistication of Purchasers
The fourth DuPont factor considers the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. Opposer argues that “there is no dispute that the conditions of
purchasing goods and services under Applicant’s BAD MOMS formative marks and
Opposer’s marks are likely to exacerbate the likelihood of confusion” because
Opposition No. 91240829
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“Applicant’s goods offered under her BAD MOMS UNLIMITED mark are, as a matter
of law, not the subject of careful, sophisticated purchasing.” 48 TTABVUE 43.
Opposer cites the admitted low price of Applicant’s shirts, note books, and magnets.
Id. Applicant does not respond to Opposer’s arguments.
Unlike many of the goods identified in Classes 9 and 16, the goods identified in
Class 25 do not contain any limitations and thus “include ‘all goods of the type
identified, without limitation as to their nature or price.’” Embiid, 2021 USPQ2d 577,
at *27 (quoting Sock It to Me, Inc. v. Fan, 2020 USPQ2d 10611, at *8 (TTAB 2020)).
Many of the Class 25 goods in the ’487 Application, including shirts, are of the sort
that the Board has repeatedly acknowledged may be subject to impulse purchase due
to their potential low price. See, e.g., id., at *32-33. The decorative magnets in Class
9 and the note books in Class 16 are also the sort of goods that may be subject to
impulse purchase, or at least purchased without a significant degree of purchaser
care. We find that the fourth DuPont factor supports a finding of a likelihood of
confusion as to all three classes in the ’487 Application.
With respect to the purchase conditions for the services identified in the ’298
Application, one of the charitable services is specifically limited to rendition online,
“where donors search for and make monetary donations to specific charities or
projects aimed at helping mothers in need,” and must necessarily pay attention to the
disposition of their contributions. Other charitable services such as “providing
financial assistance for programs and services of others,” and “providing financial
support to mothers in need for payment of educational costs, pregnancy and prenatal
Opposition No. 91240829
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costs, childcare costs, utility bills and obtaining medications,” are of such a nature
that we can reasonable assume more than an ordinary degree of care in using them.
We find that the fourth DuPont factor supports a finding of no likelihood of confusion
as to the services in the ’298 Application.
5. Absence of Evidence of Actual Confusion
“The seventh and eighth DuPont factors consider the nature and extent of any
actual confusion among consumers in light of the length of time and conditions under
which there has been contemporaneous use of the parties’ subject marks.” Brooklyn
Brewery Corp. v. Brooklyn Brew Shop, LLC, 2020 USPQ2d 10914, at *19 (TTAB
2020). The absence of evidence of actual confusion is “meaningful only if the record
indicate[s] appreciable and continuous use by [A]pplicant of [her] mark for a
significant period of time in the same markets as those served by [O]pposer under its
marks.” Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
Opposer notes that “Applicant has engaged in very little activity under her marks at
issue,” 48 TTABVUE 44, and that she has “only expended $13,000 to advertise and
promote her services, and has earned only $500 in revenue.” Id. There has been no
meaningful opportunity for actual confusion to have occurred, and we find that the
eighth DuPont factor is neutral in our analysis of the likelihood of confusion.
6. The Variety of Goods on Which Opposer’s Mark is Used
“The ninth DuPont factor takes into account the variety of goods on which a mark
is or is not used.” DeVivo, 2020 USPQ2d 10153, at *14. “If a party in the position of
plaintiff uses its mark on a wide variety of goods, then purchasers are more likely to
view a defendant’s related good under a similar mark as an extension of the plaintiff’s
Opposition No. 91240829
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line.” Id. In DeVivo, the Board found that the opposer’s use of her marks “on children’s
books, T-shirts, tank tops, sweatshirts, hoodies, coffee mugs, stickers, postcards,
greeting cards, tote bags and informational and educational services in the STEM
fields” were “insufficient to persuade us that Opposer has used her mark on a variety
of goods,” DeVivo, 2020 USPQ2d 10153, at *15, rendering the ninth factor neutral.
We similarly find that the factor is neutral in our analysis of the likelihood of
confusion based on Opposer’s uses of its BAD MOMS mark in connection with its
motion pictures and various other goods.
7. Applicant’s Alleged Bad Faith Adoption of Her Marks
An applicant’s bad faith adoption and use of a mark may be considered under the
thirteenth DuPont factor. Tao Licensing, 125 USPQ2d at 1063-64 (citing J & J Snack
Foods, 18 USPQ2d at 1891) (“Whether there is evidence of intent to trade on the
goodwill of another is a factor to be considered.”); Jewelers Vigilance Comm., Inc. v.
Ullenberg Corp., 853 F.2d 888, 7 USPQ2d 1628, 1630 (Fed. Cir. 1988) (“proof of intent
to trade on another’s goodwill” can provide “persuasive evidence of likelihood of
confusion”)).
The record contains no testimony by Applicant regarding her intent in selecting,
adopting, and using her marks.59 Opposer argues instead that “[t]here is

59 Applicant argues in her brief that she “was not seeking to exploit or otherwise take
advantage of the reputation of Opposer’s marks or movies.” 49 TTABVUE 22-23. These
arguments cannot establish good faith because they are unsupported by testimony. Opposer
argues in its reply brief that Applicant “has not made of record any evidence, including
testimony from Applicant, corroborating her intent,” that Applicant “made other evidence of
record in this case,” and that “a logical conclusion is that Applicant did not testify to her
purported intent because she could not honestly do so under the penalty of perjury.” 53
TTABVUE 17. We reject Opposer’s suggestion that we infer Applicant’s bad faith from the
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circumstantial evidence that Applicant adopted the BAD MOMS UNLIMITED and
BAD MOMS BIBLE marks in order to capitalize on the fame of the Bad Moms Motion
Pictures and BAD MOMS Marks,” 48 TTABVUE 41, because Applicant
“acknowledged that she was aware of Bad Moms, and that Bam Moms was well
recognized in the U.S., before she selected and used her BAD MOMS formative marks
and filed the Applications.” Id. Opposer further argues that “Applicant did not
conduct an adequate search of her marks prior to filing the Applications,” id. at 42,
that “Applicant produced her clearance search results, which reflect that Applicant
only conducted a search of [the] Office’s ‘trademark database,’ not any search of
unregistered users,” id.,60 and that this is “particularly egregious in light of her
admission that Bad Moms was well recognized across the U.S. before she selected her
BAD MOMS formative marks.” Id. According to Opposer, “[t]his failure constitutes,
at a minimum, willful blindness as to the scope and extent of Opposer’s rights in the
BAD MOMS Marks,” id., and the “Board should count Applicant’s failure to conduct
an adequate search against her.” Id.
Applicant essentially agrees with Opposer that Applicant’s intent may be inferred
from the record evidence. She argues that
the intention of the applicant at the time of the application
is a subjective factor which should be determined on the

fact that she did not testify at trial. Opposer, not Applicant, has the burden of proof on the
issue of intent, and could have deposed Applicant to try to establish her bad faith, but did not
do so.
60 Applicant produced the results of the search in response to Opposer’s Interrogatory No. 9.
Id. at 186-95. Opposer made of record Applicant’s Supplemental Response to Opposer’s
Interrogatory No. 9, which stated that the “USPTO trademark database search did not reveal
any BAD MOMS trademarks pending or registered by the Opposer.” 24 TTABVUE 180.
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basis of the objective circumstances of the particular case.
In other words, an overall assessment should be made,
taking into account all the relevant factual circumstances
as they existed at the time the application was submitted.
49 TTABVUE 22. She further argues that she “initiated a comprehensive search for
possible conflicts” prior to filing her applications, and that “[t]he search results
appeared clear of conflicts.” Id. at 23.
Applicant admitted that she “was aware of the Bad Moms motion picture at the
time [she] applied for the trademarks,” 24 TTABVUE 179 (Applicant’s Supplemental
Response to Opposer’s Interrogatory No. 8), and that she had “learned and knew
about the motion picture after seeing advertising for the movie.” Id. Her awareness
of the film, however, is not enough to show her bad faith because “[t]o show intent,
[Opposer] must establish that [A]pplicant had more than mere knowledge of
[O]pposer’s prior mark.” Bd. of Regents, Univ. of Tex. Sys. v. S. Ill. Miners, LLC, 110
USPQ2d 1182, 1196 (TTAB 2014). An inference of bad faith “requires an intent to
confuse.” Quicktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 2021 USPQ2d 35,
at *4 (Fed. Cir. 2021) (citing Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d
97, 92 USPQ2d 1769, 1782 (2d Cir. 2009) (“[T]he only relevant intent is intent to
confuse. There is a considerable difference between an intent to copy and an intent to
deceive.” (quoting 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 23:113)).
Applicant also admitted that BAD MOMS was well-recognized as a title of a movie
before she selected, applied to register, and used her marks. 24 TTABVUE 232-34
(Applicant’s Responses to Opposer’s Request for Admission Nos. 43-50). Given the
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difficulty in establishing that the title of an artistic work functions as a trademark,
and the fact that BAD MOMS was not such a strong trademark by mid-2017 that the
only reasonable inference to be drawn from the adoption of similar marks is an intent
to confuse, we find that these admissions do not support a finding of bad faith.
Applicant’s limited trademark search of the records of the USPTO similarly does
not support an inference of bad faith in view of Applicant’s admission that she knew
of the BAD MOMS motion picture before she selected, adopted, and applied to register
her marks.61 Even if a more comprehensive search would have disclosed Opposer’s
common law uses of BAD MOMS, mere awareness of those uses in addition to the use
of BAD MOMS as the title of the 2016 film would not establish bad faith. Quiktrip W.,
2021 USPQ2d 35, at *4.
Finally, as discussed above, Mr. Egan testified that on Applicant’s website
“Applicant’s BAD MOMS UNLIMITED mark uses BAD MOMS in much larger font
than the word UNLIMITED, and therefore emphasizes the mark BAD MOMS,” Egan
Decl. ¶ 31, and Applicant produced some documents in which the words BAD MOMS
are written together as BADMOMS in larger typeface than the word UNLIMITED.
A defendant’s use of font styles or trade dress that simulates a plaintiff’s use of its

61 Opposer cites Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger, U.S.A., Inc., 80 F.3d
1369, 38 USPQ2d 1369 (2d Cir. 1996), for the proposition that the “defendant’s failure to
conduct an adequate search weighed in favor of reversing a finding of non-willful
infringement.” 48 TTABVUE 42. That statement accurately captures the Second Circuit’s
analysis in Int’l Star Class, but while we give this regional circuit court opinion respectful
consideration, we are not bound by it and must reject its analysis to the extent that it conflicts
with the analysis in our precedents or those of the Federal Circuit. Under Federal Circuit
law, “even a search report showing opposer’s mark is insufficient to establish bad faith.” S.
Ill. Miners, 110 USPQ2d at 1196 (citing Sweats Fashions, Inc. v. Pannill Knitting Co., 833
F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987)).
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mark may support a finding of bad faith. See Tao Licensing, 125 USPQ2d at 1063-64;
Edom Labs., Inc. v. Licther, 102 USPQ2d 1546, 1553-54 (TTAB 2012) (bad faith found
where applicant took affirmative steps to cause confusion and to associate its mark
with the opposer’s). But Mr. Egan’s testimony is uncorroborated by the referenced
webpage, and there is no evidence that the particular display of the BAD MOMS
UNLIMITED mark in the documents produced by Applicant was actually used by her
in selling goods, so this evidence does not provide a sufficient basis on which to infer
Applicant’s bad faith intent to confuse.
Considered in its entirety, Opposer’s circumstantial evidence of bad faith is
unpersuasive. Whether a deposition of Applicant might have enabled Opposer to fill
in the gaps in its evidence “is not a subject on which we can, should or do speculate.
Rather, we must take the record as [Opposer] made it.” T.A.B. Sys. v. PacTel Teletrac,
77 F.3d 1372, 37 USPQ2d 1879, 1884 (Fed. Cir. 1996). The record as Opposer made
it “does not demonstrate that [Applicant] intended to copy [Opposer’s] mark in order
to confuse customers.” Quicktrip W., 2021 USPQ2d 35, at *4. We find that the
thirteenth DuPont factor is neutral in our analysis of the likelihood of confusion.
8. Balancing the DuPont Factors
With respect to Class 25 in the ’487 Application, the BAD MOMS and BAD MOMS
UNLIMITED marks are similar, the goods identified as “T-shirts” in the application
are commonly part of a collateral merchandising program for entertainment
properties such as motion pictures, as they are here, those goods may be subject to
impulse purchase, and the BAD MOMS mark has modest commercial strength, and
these DuPont factors support a finding of a likelihood of confusion. The third DuPont
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factor supports a finding of no likelihood of confusion, and all other relevant DuPont
factors are neutral. We find that the first, second, fourth and fifth DuPont factors
outweigh the third factor, and that Opposer proved by a preponderance of the
evidence that there is a likelihood of confusion as to Class 25 in its entirety.
With respect to Classes 9 and 16 in the ’487 Application, the BAD MOMS and
BAD MOMS UNLIMITED marks are similar, the goods may be subject to purchase
with no more than ordinary purchaser care, and the BAD MOMS mark has modest
commercial strength, but there is an absence of evidence that Opposer’s motion
pictures and collateral goods are related to the involved Class 9 and 16 goods or that
those goods travel in the same or similar channels of trade. All other relevant DuPont
factors are neutral. We find that the second and third DuPont factors outweigh the
first, fourth, and fifth factors, and that Opposer failed to prove by a preponderance of
the evidence that there is a likelihood of confusion as to the goods identified in Classes
9 and 16. We dismiss Opposer’s Section 2(d) claim as to Classes 9 and 16 in the ’487
Application.
With respect to the ’298 Application, the BAD MOMS and BAD MOMS BIBLE
marks are similar, and the BAD MOMS mark has modest commercial strength, but
there is an absence of evidence that Opposer’s motion pictures and collateral goods
are related to the involved services and that the goods and services are sold in the
same or similar channels of trade, and the services are likely to be purchased and
used with more than an ordinary degree of care. All other relevant DuPont factors
are neutral. We find that the second, third, and fourth DuPont factors outweigh the
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first and fifth factors, and that Opposer failed to prove by a preponderance of the
evidence that there is a likelihood of confusion as to the services identified in the ’298
Application. We dismiss Opposer’s Section 2(d) claim as to the ’298 Application.
VI. Opposer’s Claim That Applicant Lacked a Bona Fide Intention to Use
Her Mark
The ’487 Application was filed under Section 1(b) of the Trademark Act. 15 U.S.C.
§ 1051(b).62 “Because a bona fide intent to use the mark in commerce is a statutory
requirement of a valid intent-to-use trademark application under [Trademark Act]
Section 1(b), 15 U.S.C. § 1051(b), the lack of such intent is a basis on which an opposer
may challenge an applicant’s mark.” Swiss Grill Ltd. v. Wolf Steel Ltd., 115 USPQ2d
2001, 2009 (TTAB 2015) (quoting M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368,
114 USPQ2d 1892, 1897 (Fed. Cir. 2015)). An “intent must be ‘firm,’ ‘demonstrable’
with ‘objective evidence of intent’ and ‘more than a mere subjective belief.’” Id.
(quoting M.Z. Berger, 114 USPQ2d at 1897-98). Our “determination of whether an
applicant has a bona fide intention to use the mark in commerce is to be a fair,
objective determination based on all the circumstances.” Id. (quoting M.Z. Berger, 114
USPQ2d at 1897-98).
Opposer bears “the initial burden of demonstrating by a preponderance of the
evidence that [A]pplicant lacked a bona fide intent to use the mark on the identified

62 As discussed above, Opposer’s claim that Applicant lacked a bona fide intention to use her
marks in commerce when she filed her applications is limited to the ’487 Application. Because
we have sustained the opposition as to Class 25 in the ’487 Application based on Opposer’s
Section 2(d) claim, we need only consider the lack of a bona fide intent to use claim as to the
goods in Classes 9 and 16. See, e.g., Tao Licensing, 125 USPQ2d at 1064 (in the interest of
judicial economy it is not necessary to determine each independent basis for relief).
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goods.” Id. (quoting Bos. Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581,
1857 (TTAB 2008)). Opposer may meet this burden by establishing that there is an
“absence of any documentary evidence on the part of [Applicant] regarding such
intent.” Id. (quoting Commodore Elecs. Ltd. v. CBM K.K., 26 USPQ2d 1503, 1507
(TTAB 1993)). If Opposer meets its burden, “Applicant may ‘elect to try to rebut the
[O]pposer[’s] prima facie case by offering additional evidence concerning the factual
circumstances bearing upon [her] intent to use [her] mark in commerce.’” Id. (quoting
Commodore Elecs., 26 USPQ2d at 1507 n.11).
In its main brief, Opposer argues that it showed that Applicant lacked a bona fide
intention to use her mark with all of the goods in Classes 9 and 16 except for
“calendars and notebooks” in Class 16. 48 TTABVUE 52.63 Opposer argues that
“Applicant produced only a smattering of documents purporting to reflect her intent
to use BAD MOMS UNLIMITED for the goods at issue as of July 28, 2017, the filing

63 In a footnote, Opposer hedges and states that its “limitation of its claim to not include these
goods should not be construed as an admission that Applicant had a bona fide intent to use
BAD MOMS UNLIMITED for these goods but, instead, evidence of Opposer’s prudence.” 48
TTABVUE 52 n.5. Opposer states that it “does not believe that Applicant had a bona fide
intent to use BAD MOMS UNLIMITED on any of the identified goods at the time of filing
that Application.” Id. (emphasis in original). At the oral hearing, Opposer’s counsel similarly
argued that Opposer had shown that Applicant had no bona fide intention to use the mark
as to any goods. Opposer also stated, however, that the record evidence “relate[s] only, and
at best, to Applicant’s intent to use BAD MOMS UNLIMITED for calendars, tank tops, t-
shirts, and notebooks, which goods are not at issue,” id. at 53 n.7, and that the evidence “at
most reflects Applicant’s intent to use BAD MOMS UNLIMITED for calendars, tank tops, t-
shirts, and notebooks, which goods are not at issue.” 53 TTABVUE 7. In its reply brief,
Opposer states that “if the opposition is not sustained on a likelihood of confusion, the Board
should find that Applicant lacked a bona fide intent to use the BAD MOMS UNLIMITED
mark for all goods identified in the BAD MOMS UNLIMITED Application except for shirts,
t-shirts, calendars, and notebooks.” Id. at 8 (emphasis added). Under the circumstances,
we find that Opposer limited its claim in Class 16 to goods other than calendars and note
books.
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date of the BAD MOMS UNLIMITED Application.” Id. at 53 (emphasis in original).
Opposer describes these documents as ones relating to the development of logos for
Applicant’s two marks, id., undated photographs of BAD MOMS UNLIMITED
hangtags, “without reference to any particular products,” id., “[u]ndated photographs
of a hat bearing the BAD MOMS UNLIMITED mark with a BAD MOMS
UNLIMITED hangtag and two pairs of sunglasses with BAD MOMS UNLIMITED
hangtags,” id., “emails dating from February 2018 regarding proposed designs for
and purchases of prefabricated calendars, tank tops, t-shirts, and notebooks . . . 7
receipts, dating from March 15, 2018 to May 15, 2018, purporting to reflect the sale
of shirts, tanktops, notebooks, and calendars . . . and photographs of a tank top and
a hat.” Id. at n.7.64 Opposer concludes that based “on the unambiguous evidentiary
record, Opposer has established a prima facie case of lack of bona fide intent to use
by pointing to the absence of documentary evidence existing as of or sufficiently
contemporaneous to the filing date of the BAD MOMS UNLIMITED Application for
the goods at issue,” and Applicant has not rebutted that case. Id. at 54.
Applicant responds that she
objectively proved intent to use by taking clear steps
towards providing charitable foundation services under the
BAD MOMS BIBLE trademark, as well as selling goods
under the BAD MOMS UNLIMITED trademark. A 501(c)
non-profit company was established, a Board of Directors
was appointed, a website was created, [and] actual goods
in classes 09, 16 and 25 were produced and sold to

64 These documents were identified in Applicant’s Response to Opposer’s Interrogatory No.
40. 24 TTABVUE 211. The documents themselves were all designated as Confidential by
Applicant and were filed under seal by Opposer. 25 TTABVUE. Opposer and we have
described the referenced documents in general terms.
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consumers. Additionally, women have used the resources
of the charitable foundation services via the website and
various events and programs. Applicant produced proof of
all these steps in discovery.
49 TTABVUE 28-29. In its reply brief, Opposer argues that Applicant has submitted
no evidence to support this response and has thus failed to rebut Opposer’s prima
facie case. 53 TTABVUE 7-8.
“The particular facts of each case must be carefully considered in their totality,
but generally, the strongest documentary proof will have been created prior to, or at
the latest on, the filing date of the intent-to-use application.” Société des Produits
Nestlé S.A. v. Cándido Viñuales Taboada, 2020 USPQ2d 10893, at *12-13 (TTAB
2020) (citing Swiss Grill, 115 USPQ2d at 2009-10). Applicant’s documentary evidence
all post-dates her July 28, 2017 filing date, and most of it is from 2018. Applicant did
not produce any documents to show that as of her filing date, she had the “capacity
or experience needed to manufacture or otherwise offer” the numerous goods
identified in the ’487 Application. Id., at *12 (quoting L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1443 (TTAB 2012)).65 The post-July 28, 2017 documents that
Applicant produced pertain to the development of a logo to accompany her marks and
the font in which they may be displayed, 25 TTABVUE 3-8, and the display of the
BAD MOMS UNLIMITED mark on or in connection with calendars, shirts, note
books, sunglasses, and hats. Id. at 9-31. To the extent that these documents have

65 As the Board noted in Société des Produits Nestlé, “an applicant’s capacity to market and
manufacture the identified goods consistent with the natural extension of its current product
line can rebut the lack of documentary evidence,” Société des Produits Nestlé, 2020 USPQ2d
10893, at *12, but the record reveals absolutely nothing about Applicant’s business (if any)
before or as of her filing date.
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probative value regarding the bona fides of Applicant’s intent at the time of filing, see
Société des Produits Nestlé, 2020 USPQ2d 10893, at *12-13 (discussing cases in which
documents generated at various times after the filing of intent-to-use applications
have been considered relevant on an applicant’s intent as of filing), they pertain to
only a handful of the goods identified in the ’487 Application. They tell us nothing
about Applicant’s intent with respect to the Class 9 goods,66 or the vast majority of
the Class 16 goods.
Applicant’s rebuttal case in her brief is again based on the argument of her
counsel, not testimony, and her argument is directed largely to her services in the
’298 Application, which are not the subject of Opposer’s claim. Given the absence of
documentary evidence of Applicant’s bona fide intent to use the BAD MOMS
UNLIMITED mark on any Class 9 goods and on any Class 16 goods other than
calendars and note books, Applicant’s response fails to rebut Opposer’s prima facie
case. We find that Opposer showed that when Applicant filed her application to
register BAD MOMS UNLIMITED, she lacked a bona fide intention to use the mark
in commerce in connection with all goods in Class 9 and all goods in Class 16 other
than calendars and note books.
Decision: The opposition to the ’487 Application is sustained (1) as to Class 25 in
its entirety on the basis of Opposer’s Section 2(d) claim, and (2) as to all goods in Class

66 One of the documents is a photograph of hangtags bearing the BAD MOMS UNLIMITED
mark attached to the earpieces of two pairs of sunglasses. Because a hangtag can be attached
to numerous products, and because there is no evidence that Applicant ever purchased
sunglasses to which to affix her mark, we find that this photograph does not support a finding
that Applicant had a bona fide intention to use her mark on sunglasses when she filed the
’487 Application.
Opposition No. 91240829
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9, and all goods in Class 16 other than calendars and note books, on the basis of
Opposer’s claim that Applicant lacked a bona fide intention to use the mark in
commerce, but the dilution claim is dismissed and the Section 2(d) claim is dismissed
as to Classes 9 and 16. The opposition to the ’298 Application is dismissed on both
grounds.