503 Sports LLCv.The National Association of Professional Baseball Leagues, Inc.

Trademark Trial and Appeal Board

May 6, 2021

91243580 (T.T.A.B. May. 6, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 6, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

503 Sports LLC
v.
The National Association of Professional Baseball Leagues, Inc.
_____

Opposition No. 91243580
_____

Dustin Alameda, pro se,
for 503 Sports LLC.
Mary Frances Love and H. David Starr of Muncy Geissler Olds & Lowe PC,
for The National Association of Professional Baseball Leagues, Inc.
_____

Before Bergsman, Wellington and Greenbaum,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
The National Association of Professional Baseball Leagues, Inc. (“Applicant”)
seeks registration on the Principal Register of the mark PORTLAND MAVERICKS
and Design (PORTLAND disclaimed), displayed as for
Opposition No. 91243580
- 2 -

Entertainment services in the nature of baseball games
and exhibitions, in International Class 41.1
In its Amended Notice of Opposition, 503 Sports LLC (“Opposer”) opposes
registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), asserting a likelihood of confusion with Opposer’s previously used marks
PORTLAND MAVERICKS and MAVERICKS on baseball apparel and in connection
with Opposer’s “involvement in baseball related events.” 11 TTABVUE 3, ¶3.2
In its Answer to the Amended Notice of Opposition, Applicant admitted that it
filed the involved intent-to-use application (12 TTABVUE 3, ¶¶1-2), and denied all
other allegations. 12 TTABVUE 4, ¶¶3-11.

1 Application Serial No. 87407131 was filed on April 11, 2017 based upon Applicant’s claim of
first use anywhere and use in commerce since at least as early as October 31, 2014 under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). In the July 16, 2018 Request for
Reconsideration, Applicant amended the application basis to intent to use under Section 1(b)
of the Trademark Act, 15 U.S.C. § 1051(b).
The application includes the following description of the mark: “The mark consists of the
stylized words ‘PORTLAND MAVERICKS’ above a snorting bucking bull kicking up dust, all
of which is within an outline of a home plate.” Color is not claimed as a feature of the mark.
2 The likelihood of confusion allegations are set out in paragraphs 3-11 of the Amended Notice
of Opposition, which is the operative pleading in this proceeding. 11 TTABVUE 3. The
January 9, 2020 Board Order denied Applicant’s construed motion for judgment on the
pleadings, but struck the other “intended” claims (failure to function as a mark, false
suggestion of a connection and dilution by blurring, as set out in paragraphs 12-24 of the
Amended Notice of Opposition). 19 TTABVUE 6-8. Given the Board’s specific reference to
“paragraphs 3-11 of the amended notice of opposition” in its analysis of the likelihood of
confusion claim, 19 TTABVUE 5, the Board’s later reference to the “sua sponte strik[ing] of
paragraphs 11-24 from the amended notice of opposition,” 19 TTABVUE 8, is hereby
corrected to refer only to “paragraphs 12-24”; paragraph 11 remains part of the Amended
Notice of Opposition.
Opposition No. 91243580
- 3 -

I. Record
The record consists only of the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), Applicant’s involved application file . Neither party took
testimony or introduced any evidence during its testimony period.
Both parties filed briefs, and Opposer attached evidence to its Reply Brief.3 We do
not consider this evidence as Opposer did not make it of record during Opposer’s
assigned testimony period, and there is no stipulation, granted motion or Board order
allowing submission of evidence in this manner. See Trademark Rule 2.121(a),
37 C.F.R. § 2.121(a) (“No testimony shall be taken or evidence presented except
during the times assigned, unless by stipulation of the parties approved by the Board,
or upon motion granted by the Board, or by order of the Board.”); Hole In 1 Drinks,
Inc. v. Lajtay, 2020 USPQ2d 10020, at *2 (TTAB 2020) (exhibits attached to brief not
considered).4
II. Entitlement to a Statutory Cause of Action5
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d

3 Applicant attached to its Brief a Board Order in an unrelated proceeding that has no bearing
on this Opposition. 26 TTABVUE 13-16. The Board has discretion in applying Trademark
Rule 2.128(a)(3), 37 C.F.R. § 2.128(a)(3), and chose not to enter judgment against Opposer for
failure to take testimony or submit any other evidence, when the Board discharged the order
to show cause why Opposer’s failure to file a brief should not be treated as a concession of the
case. 23 and 25 TTABVUE.
4 We add that the evidence is of no probative value because it is not authenticated.
Consideration of this evidence, therefore, would have had no effect on this decision.
5 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this
inquiry as entitlement to a statutory cause of action. Despite the change in nomenclature,
Opposition No. 91243580
- 4 -

1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 125-26, 109 USPQ2d 2061, 2067 n.4 (2014)).
A party in the position of plaintiff may oppose registration of a mark when it
demonstrates an interest falling within the zone of interests protected by the statute,
Section 13 of the Trademark Act, 15 U.S.C. § 1063, and the plaintiff has a reasonable
belief in damage that is proximately caused by registration of the mark. Corcamore,
LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at *6-7 (Fed. Cir. 2020).
“Proof of [entitlement to a statutory cause of action] in a Board opposition is a low
threshold, intended only to ensure that the plaintiff has a real interest in the matter,
and is not a mere intermeddler.” Syngenta Crop Prot. Inc. v. Bio-Chek LLC,
90 USPQ2d 1112, 1117 n.8 (TTAB 2009) (citing Ritchie v. Simpson, 170 F.3d 1092,
50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)).
Because Opposer did not plead and introduce a United States trademark
registration, or submit any timely evidence or testimony, and Applicant made no
relevant admissions in its Answer, Opposer has not proved that it is entitled to a
statutory cause of action as alleged in the Amended Notice of Opposition.
Opposer’s failure to prove its entitlement to a statutory cause of action is a
sufficient basis to dismiss this proceeding. See Lumiere Prods., Inc. v. Int’l Tel. & Tel.
Corp., 227 USPQ 892, 893 (TTAB 1985). However, even if Opposer had established
its entitlement (which it did not), the lack of evidence also means that Opposer failed

our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain
equally applicable.
Opposition No. 91243580
- 5 -

to carry the burden of proof as to all aspects of its likelihood of confusion claim. See
Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir.
2002) (“The burden of proof rests with the [plaintiff] … to produce sufficient evidence
to support the ultimate conclusion of [priority of use] and likelihood of confusion.);
Sanyo Watch Co. v. Sanyo Elec. Co., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir.
1982) (“As the [plaintiff] in this proceeding, appellant bears the burden of proof which
encompasses not only the ultimate burden of persuasion, but also the burden of going
forward with sufficient proof of the material allegations in the [petition to cancel],
which, if not countered, negates appellee’s right to a registration.”).
Decision: The opposition is dismissed.