Bikers For Bikers of Texas, Inc.v.Bikers For Bikers Foundation

Trademark Trial and Appeal Board

Sep 30, 2016

No. 92062700 (T.T.A.B. Sep. 30, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Bikers For Bikers of Texas, Inc.

v.

Bikers For Bikers Foundation

_____

Cancellation No. 92062700
_____

Paul C. Van Slyke of Hoover Slovacek LLP,
for Bikers For Bikers of Texas, Inc.
Eric J. Menhart of Lexero Law Firm,
For Bikers For Bikers Foundation.
_____

Before Wellington, Kuczma and Adlin,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Bikers For Bikers of Texas, Inc. (“Petitioner”) filed a First Amended Petition for
Cancellation of Bikers For Bikers Foundation’s (“Respondent”) Trademark
Registration No. 4402786, for the mark BIKERS FOR BIKERS FOUNDATION (in
standard characters) for “Charitable fundraising services for injured bikers and
needy children,” alleging that Respondent’s mark is likely to be confused with
Cancellation No. 92062700
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Petitioner’s common law mark BIKERS FOR BIKERS. Additionally, Petitioner owns
pending service mark application Serial No. 86903057, filed February 10, 2016, for
the mark BIKERS FOR BIKERS (standard characters) in connection with “charitable
fundraising services for raising donations and administering emergency assistance
to fellow bikers.”
Petitioner alleges priority of use and likelihood of confusion under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), between its unregistered mark BIKERS FOR
BIKERS and Respondent’s registered mark BIKERS FOR BIKERS FOUNDATION.
With the exception of admitting September 9, 2010 as its date of first use of its
mark in commerce, Respondent denies the salient allegations in its Answer to First
Amended Petition.1
I. Preliminary Matters – Accelerated Case Resolution
The parties agreed to resolve this proceeding by Accelerated Case Resolution
(“ACR”) in lieu of a trial.2 The Board’s Order of March 21, 2016, approved the use of
ACR for this proceeding and the following additional stipulations which remain
applicable to this case:

1 Answer to First Amended Petition (12 TTABVUE 3). Respondent’s affirmative defenses of
laches and acquiescence/consent were stricken because Respondent indicated that under the
specific circumstances of this case it does not contest Petitioner’s Motion to Strike its
affirmative defenses (14 TTABVUE).
2 The parties filed a Joint Motion for Use of Accelerated Case Resolution on February 26,
2016. See 8 TTABVUE. ACR is a procedure akin to summary judgment in which parties can
receive a prompt determination of the claims and defenses in their case. To take advantage
of ACR, the parties must stipulate that, in lieu of trial, the Board can resolve any material
issues of fact. After the briefs are filed, the Board will generally issue a decision within fifty
days, which will be judicially reviewable as set out in 37 CFR §2.145. Ballet Tech Foundation,
Inc. v. Joyce Theater Foundation, Inc., 89 USPQ2d 1262, 1266 n. 9 (TTAB 2008).
Cancellation No. 92062700
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1. This case will proceed under the summary judgment model of ACR. See TBMP
§ 702.04(b) (2015).3 The trial and briefing periods will occur in one phase with
evidence filed concurrently with the respective trial brief.

2. The Board may resolve genuine disputes of material fact.

3. There is a likelihood of confusion between the parties’ marks.

4. A party may conduct direct examination during a discovery deposition of its
own witness.

5. Discovery depositions may be used as testimony.

6. Testimony of any witness of either party may be submitted in the form of an
affidavit by such witness.

Pursuant to the parties’ agreement, the Board can resolve any issues of material fact
in making the final determination on the merits.
II. The Record
Pursuant to the parties’ ACR stipulation, testimony was presented by affidavit (or
declaration) with accompanying exhibits. Thus, the record consists of the pleadings,
by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the registration file
for Respondent’s Registration No. 4402786, and the following:
A. Petitioner’s Evidence
Declaration of Phyllis Borroum4, member of Petitioner with attached Exhibits
A-C (15 TTABVUE 11-13, 14-29).

3 The language of § 702.04(b) in the current edition of the TBMP (June 2016) remains the
same.
4 With its Reply Brief, Petitioner submitted new evidence in the Supplemental Declaration
of Phyllis Borroum. Respondent has lodged an objection made in anticipation of Petitioner’s
introduction of new evidence in its Reply Brief. See Respondent’s ACR Trial Brief
(“Respondent’s Brief”), pp. 18-19 (20 TTABVUE 19-20). New evidence in or attached to a
reply brief that supports the moving party’s case in chief is untimely and will not be
considered. In re Zanova Inc., 59 USPQ2d 1300, 1302 (TTAB 2001). Inasmuch as the
Supplemental Declaration contained some new evidence and the remainder of the evidence
Cancellation No. 92062700
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B. Registrant’s Evidence
Affidavit of Mickey Carter, Respondent’s primary proprietor (Exhibit 1) with
attached Exhibits #1A-1F (20 TTABVUE 22-24, 25-59);

Affidavit of Eric Menhart, counsel of record for Respondent (Exhibit 2) with
attached Exhibits #2A-2P (20 TTABVUE 60-64, 65-93).

III. Background
Petitioner and Respondent are both engaged in fundraising services for motorcycle
riders, i.e., bikers, who are injured or need emergency assistance. In view of the
stipulation entered into between them that there is “a likelihood of confusion between
the parties’ marks” given their similar services, the only issue for determination on
the merits is which of them has prior rights in its mark.
IV. Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. To establish standing in a cancellation, a petitioner must show both “a
real interest in the proceedings as well as a ‘reasonable basis’ for his belief of
damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d
1058, 1062 (Fed. Cir. 2014); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,
1025 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185, 189 (CCPA 1982).
The Declaration of Phyllis Borroum submitted with Petitioner’s ACR Trial Brief
establishes Petitioner’s interest in the mark BIKERS FOR BIKERS based on its use

was essentially the same information as set forth in the original Declaration, we have
disregarded it.
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of that service mark in connection with its activities as a charitable organization
providing needy bikers and their families emergency assistance with food, clothing,
house payments, medical bills and funerals. Moreover, Petitioner owns a pending
application to register the mark BIKERS FOR BIKERS.5 Accordingly, Petitioner has
a real interest in this proceeding and a reasonable basis for its belief that it will be
damaged by the continued registration of Respondent’s admittedly confusingly
similar mark BIKERS FOR BIKERS FOUNDATION. Spirits Int’l B.V. v. S.S. Taris
Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 USPQ2d 1545, 1548
(TTAB 2011); Toufigh v. Persona Parfum Inc., 95 USPQ2d 1872, 1874 (TTAB 2010).
Petitioner is therefore not a mere intermeddler and has established its standing in
this cancellation proceeding. Ritchie v. Simpson, 50 USPQ2d at 1025; Lipton Indus.,
Inc. v. Ralston Purina Co., 213 USPQ at 189; Swiss Grill Ltd. v. Wolf Steel Ltd., 115
USPQ2d 2001, 2008 (TTAB 2015).
V. Priority
For Petitioner to prevail in this proceeding it must show that it acquired rights in
the name and mark BIKERS FOR BIKERS before the date on which Respondent is
entitled to rely for its substantially identical mark BIKERS FOR BIKERS
FOUNDATION. To establish priority on its likelihood of confusion claim under §2(d)
of the Trademark Act, Petitioner must prove that, vis-à-vis Respondent, it owns “a
mark or trade name previously used in the United States … and not abandoned….”

5 Respondent acknowledged that the application has been filed. (15 TTABVUE 3; 20
TTABVUE 5; 21 TTABVUE 6).
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Trademark Act Section 2(d), 15 U.S.C. §1052(d). It is Petitioner’s burden as plaintiff
in the proceeding to establish prior ownership by a preponderance of the evidence.
See, e.g., Metro Traffic Control, Inc. v. Shadow Network Inc., 104 F.3d 336, 41
USPQ2d 1369, 1372 (Fed. Cir. 1997); Wonderbread 5 v. Gilles, 115 USPQ2d 1296,
1302 (TTAB 2015).
Petitioner does not own an existing registration upon which it can rely for
purposes of priority. In addition, Petitioner cannot rely on the filing date of its pleaded
application as a constructive use date for purposes of priority because its application
Serial No. 86903057 has a later filing date, February 10, 2016, than Respondent’s
Registration No. 4402786, which has a filing and constructive use date of November
30, 2012. Therefore, in order for Petitioner to prevail on its priority claim, it must
prove that it has a proprietary interest in the mark BIKERS FOR BIKERS and that
the interest was obtained prior to the earliest of either the November 30, 2012
constructive use date of Registrant’s registration for BIKERS FOR BIKERS
FOUNDATION, or an earlier date of use which Respondent has proven and thus can
rely upon. See Herbko International Inc. v. Kappa Books Inc., 308 F.3d 1156, 64
USPQ2d 1375, 1378 (Fed. Cir. 2002); Otto Roth & Co., Inc. v. Universal Corp., 640
F.2d 1317, 209 USPQ 40, 43 (CCPA 1981); L. & J.G. Stickley Inc. v. Cosser, 81
USPQ2d 1956, 1966 (TTAB 2007).
Petitioner’s rights may arise from prior common law usage as a mark, prior use
as a trade name, prior use analogous to trademark or service mark use, or any other
use sufficient to establish proprietary rights. Herbko Int’l Inc. v. Kappa Books Inc.,
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64 USPQ2d at 1378; Otto Roth & Co., Inc. v. Universal Foods Corp., 209 USPQ at 43;
L. & J.G. Stickley Inc. v. Cosser, 81 USPQ2d at 1966.
Petitioner was formed as a nonprofit corporation in the State of Texas on June 2,
2014,6 under the name Bikers For Bikers of Texas.7 This was well after Respondent’s
November 30, 2012 constructive use date. However, Petitioner asserts that through
its “predecessor in title” it has used BIKERS FOR BIKERS as a service mark since
April 1990.
Despite its admission to the September 9, 2010 date of first use of its mark
identified in its Registration No. 44027868, Respondent argues that the evidence it
produced “demonstrates use [of its mark] from August of 2009.” Although Respondent
can rely on its constructive use date, i.e., the November 30, 2012 filing date of its
application, it argues that it first acquired rights in the mark as of August 2009.9
Because this date precedes the asserted first use dates in its registration, it faces a
heavier evidentiary burden than the usual preponderance of the evidence.
Respondent must prove the alleged earlier date by “clear and convincing” evidence.
Martahus v. Video Duplication Servs. Inc., 3 F.3d 417, 27 USPQ2d 1846, 1852 n. 7

6 Declaration of Phyllis Borroum, ¶ No. 4 (15 TTABVUE 11); Respondent’s Exhibit #2J
Certificate of Formation Nonprofit Corporation and Exhibit #2K Texas Secretary of State
Business Organizations Inquiry (20 TTABVUE 77-79, 80).
7 While Petitioner and Respondent identify Petitioner as Bikers For Bikers of Texas, Inc., it
appears that the name on record with the Texas Secretary of State is Bikers For Bikers of
Texas. However, whether or not Petitioner’s legal corporate name contains “Inc.” does not
affect our decision in this case.
8 First Amended Petition for Cancellation ¶10 (10 TTABVUE 4); Answer to First Amended
Petition ¶ 10 (12 TTABVUE 3).
9 Respondent’s Brief, pp. 3 and 7 (20 TTABVUE 4, 8).
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(Fed. Cir. 1993); Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1
USPQ2d 1772, 1773 (Fed. Cir. 1987); Threshold.TV Inc. v. Metronome Enterprises
Inc., 96 USPQ2d 1031, 1036 (TTAB 2010).
Respondent is a volunteer non-profit corporation organized in North Carolina that
was created by Mickey Carter in 2007 as a way for motorcyclists to help other
motorcyclists. In September 2009, Respondent began holding charity events from
time to time. In May 2011, Respondent held the 1st Annual Bikers for Bikers
Foundation Music Fest/Rally, which has been held every year since.10 Respondent
also held the Tim Diffin Memorial Rides in 2012, 2013, 2014 and 2015 which were
promoted on Respondent’s BIKERS FOR BIKERS FOUNDATION website and
Facebook page. Every event sponsored by Respondent has been promoted on its
website and Facebook page.11 Respondent advertised its existence and events on
several unidentified internet biker radio stations as well as over 50 Facebook groups
for motorcyclists and bikers across the United States, and sells patches, stickers and
other tangible goods, and conducts raffles related to its mission.12

10 While the promotional piece submitted for Respondent’s Bikers For Bikers Foundation 1st
Annual Sprint Rally on May 13th-14th-15th-2011 indicated “Show your support and help an
injured/sick biker or needy child,” (20 TTABVUE 26), the promotional pieces for other years
simply state that “All proceeds go to Bikers for Bikers Foundation A Nonprofit Charity”
without indicating the nature of the services (20 TTABVUE 27), or do not identify the charity
or any charitable services (20 TTABVUE 28-30).
11 See Respondent’s Exhibit #1D March 25, 2010 A Charity for injured Bikers and needy
Children (20 TTABVUE 35); May 5, 2012 A Nonprofit Foundation for injured Bikers and
needy Children (20 TTABVUE 37); August 19, 2013 A Nonprofit Foundation for injured
bikers and needy children…Bikers For Bikers Foundation is in no way affiliated with Bikers
for Bikers INC out of Magnolia Texas (20 TTABVUE 40); May 9, 2014 A 501(c) 3 Nonprofit
Foundation for injured bikers and needy child (20 TTABVUE 42).
12 Affidavit of Mickey Carter, ¶¶ No. 23 and 24 (20 TTABVUE 24).
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Respondent contends that Petitioner is a recently formed corporate entity that
began use of the mark BIKERS FOR BIKERS subsequent to Respondent’s use of
BIKERS FOR BIKERS FOUNDATION, and is taking credit for “purported prior use
by a completely unrelated entity that never conferred any trademark rights on
Petitioner.”13
To understand Petitioner’s use of the BIKERS FOR BIKERS name in Texas, we
take a closer look at the Declaration of Phyllis Borroum submitted by Petitioner. Ms.
Borroum is Petitioner’s current President and a member of its Board of Directors.14
She also served continuously on the Board of Directors for Petitioner’s predecessor,
Bikers For Bikers, Inc., which was chartered by the Texas Secretary of State on
March 8, 2001.15 Prior to the formation of Bikers For Bikers, Inc., she was involved
in forming and running the unincorporated charitable “organization” that raised
funds at motorcycle rallies for “needy bikers and their families to provide emergency

13 Respondent’s Brief p. 5 (20 TTABVUE 6).
14 Declaration of Phyllis Borroum, ¶¶ Nos. 3 and 7 (15 TTABVUE 11-12). The Declaration of
Phyllis Borroum identifies Petitioner as Bikers for Bikers of Texas, Inc. and Bikers for Bikers
of Texas (15 TTABVUE). However, the Certificate of Formation Nonprofit Corporation form
introduced into evidence by Respondent, identifies Bikers For Bikers of Texas, i.e., without
“Inc.” (20 TTABVUE 77). Inasmuch as no issue has been raised, we assume that Bikers For
Bikers of Texas, Inc. is the same entity as Bikers For Bikers of Texas.
15 Declaration of Phyllis Borroum, ¶ Nos. 4 and 8 (15 TTABVUE 11-12). The papers submitted
by Respondent show a Phyllis McNeal as Vice President of Bikers For Bikers Inc. (20
TTABVUE 67). Inasmuch as Respondent did not raise this as an issue, presumably, Phyllis
Borroum and Phyllis McNeal are the same person.
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assistance with food, clothing, house payments, medical bills and funerals” using the
name BIKERS FOR BIKERS.16
The first BIKERS FOR BIKERS rally was held in April, 1990 and was located in
Montgomery, Texas. Over 1000 flyers bearing the BIKERS FOR BIKERS name were
sent out to members of motorcycle clubs, motorcycle shops and bars. Funds were
raised by charging entry fees, selling t-shirts bearing the name BIKERS FOR
BIKERS on the front of the shirts, selling food and auctioning merchandise donated
by members of the group of motorcyclists who organized the rally. The funds raised
at this first rally were provided under the name BIKERS FOR BIKERS to needy
bikers and their families for emergency assistance for food, clothing, house payments,
medical bills and funerals.17
In 1992, another fund raising rally was held under the name BIKERS FOR
BIKERS. Over 1000 flyers bearing the name BIKERS FOR BIKERS were distributed
“to members of motorcycle clubs, motorcycle shops (new and used), and bars.” T-
shirts, and patches bearing the date 1992 with the name BIKERS FOR BIKERS on
the front, were sold to raise money. Similar events were held in 1993 and each year
thereafter, and similar products were distributed under the name BIKERS FOR
BIKERS to continue to raise money to provide needy bikers and their families with
emergency assistance for food, clothing, house payments, medical bills and funerals.

16 Declaration of Phyllis Borroum, ¶ Nos. 9 and 14 (15 TTABVUE 12). The evidence submitted
by Petitioner consists of evidence relating to actual use of the mark. Thus, discussion of
“analogous use” of the mark is not pertinent.
17 Declaration of Phyllis Borroum, ¶¶ Nos. 10-14 (15 TTABVUE 12).
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Each year, over 1000 flyers bearing the name BIKERS FOR BIKERS at the top of the
page were distributed to the “same types of people as before.”18
After Bikers For Bikers, Inc. was incorporated on March 8, 2001, all bank
accounts, property and assets of the unincorporated organization were transferred to
it. Annually, over 1000 flyers bearing the name BIKERS FOR BIKERS at the top
were sent out for the fund raising rallies. Funds continued to be raised by charging
an entry fee to the BIKERS FOR BIKERS rallies, selling t-shirts bearing the name
BIKERS FOR BIKERS on the front of the shirts, selling food and auctioning
merchandise donated by members of the group. During some years, more than one
BIKERS FOR BIKERS fundraising rally was held. Additional ways were found to
raise funds including selling tickets for special riding events and awarding prizes for
the winning riders. While the corporate charter for Bikers For Bikers, Inc. was
canceled for inadvertent failure to pay the franchise tax fee, the activities under the
BIKERS FOR BIKERS name continued. On September 6, 2004, a website was
launched at http://bikersforbikers.com bearing the name BIKERS FOR BIKERS at
the top of the home page.19 Beginning in 2012, over 2,000 flyers bearing BIKERS FOR
BIKERS at the top were sent out to announce the annual fund raising rallies.20 On
June 2, 2014, Bikers For Bikers of Texas was incorporated in Texas, continuing use

18 Attached to Declaration of Phyllis Borroum as Exhibit A (15 TTABVUE 2, 14-19) are some
photographs showing a t-shirt bearing the name BIKERS FOR BIKERS 1992, and patches
bearing the names BIKERS FOR BIKERS 1992, and for 1993, 1996 and 1997.
19 Declaration of Phyllis Borroum ¶ 19 (15 TTABVUE 13).
20 Declaration of Phyllis Borroum ¶¶ 17 and 18 (15 TTABVUE 13).
Cancellation No. 92062700
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of the name BIKERS FOR BIKERS for fundraising. All the funds and property owned
by Bikers For Bikers, Inc. were transferred to Bikers For Bikers of Texas.21
Respondent submitted evidence showing that Bikers For Bikers, Inc. was
incorporated on March 8, 2001, and its certificate of authority was forfeited on
February 14, 2003.22 Respondent maintains that after Bikers For Bikers, Inc.’s
certificate of authority was forfeited there were “absolutely no attempts, whatsoever,
for the dissolved entity to reclaim its trademark rights for a period of over eleven (11)
years. The earliest possible demonstration of intent was on June 2, 2014, when an
entirely separate corporate entity, Bikers For Bikers of Texas Inc. was formed.”23
Relying on Cerveceria Centroamericana S.A. v. Cerveceria India Inc., 892 F.2d
1021, 13 USPQ2d 1307 (Fed. Cir. 1989), Respondent argues that its use of BIKERS
FOR BIKERS FOUNDATION began during the time of Petitioner’s non-use or
abandonment, in August 2009, and “became superior to those of the original mark
holder.”24 However, Respondent overlooks that the BIKERS FOR BIKERS mark
asserted by Petitioner has remained in use from 1990 to the present by related
entities, i.e., there is no evidence of an interruption of use of that mark. In Cerveceria
Centroamericana S.A. v. Cerveceria India Inc., the defendant stopped use of its
registered mark for five years. Thus, that case is not analogous to the situation before

21 Declaration of Phyllis Borroum ¶¶ 4 and 5 (15 TTABVUE 11).
22 Respondent’s Exhibit #2B (20 TTABVUE 66-69); Exhibit #2C (20 TTABVUE 70).
23 Respondent’s Brief p. 17 (20 TTABVUE 18).
24 Respondent’s Brief p. 18 (20 TTABVUE 19).
Cancellation No. 92062700
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us where Petitioner asserts the BIKERS FOR BIKERS mark has been in continuous
use by related entities.
The question is whether the prior rights in the unabandoned BIKERS FOR
BIKERS mark established by the unincorporated group of motorcyclists and Bikers
For Bikers Inc. transferred to Petitioner. As Respondent notes, there is no written
assignment of trademark rights in the mark BIKERS TO BIKERS to Petitioner.25
Phyllis Borroum testified that “[a]fter our corporation was chartered in March 8,
2001, we transferred all the bank accounts, property and assets to the corporation
[Bikers For Bikers Inc.],” later “[t]he new corporation Bikers for Bikers of Texas, Inc.
continued to use the name BIKERS FOR BIKERS as our slogan and fundraising sign.
We transferred all the funds and property owned by the previous corporation to the
new corporation.”26
Although there is no written assignment transferring the rights in the BIKERS
FOR BIKERS mark to Petitioner, there still can be an implied assignment to transfer
with strong evidence of “conduct manifesting agreement.” Doeblers’ Pennsylvania
Hybrids Inc. v. Doebler, 442 F.3d 812, 78 USPQ2d 1509, 1516 (3d Cir. 2006); TMT N.
Am., Inc. v. Magic Touch GmbH, 124 F.3d 876, 43 USPQ2d 1912, 1918 (7th Cir. 1997);
Taylor v. Thomas, 624 Fed.Appx. 322, 326 (6th Cir. 2015).27

25 Respondent’s Brief p. 13 (20 TTABVUE 14).
26 Declaration of Phyllis Borroum ¶¶ 5 and 17 (15 TTABVUE 11, 13).
27 Although section III. B. of Respondent’s Brief is entitled “Any Implied Assignment is
Invalid,” Respondent’s argument addresses the ownership of an implied license, rather than
an implied assignment, and therefore, is not relevant.
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Such implied assignments “may be proven by the clear and uncontradicted oral
testimony of a person in a positon to have actual knowledge.” See Old Swiss House,
Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 196 USPQ 808 (CCPA 1978) (an oral
assignment can be proven by either direct or circumstantial evidence); Diebold, Inc.
v. Multra-Guard, Inc., 189 USPQ 119, 124 (TTAB 1975); Airport Canteen Services,
Inc. v. Farmer’s Daughter, Inc., 184 USPQ 622, 627 (TTAB 1974); Sun Valley Co. v.
Sun Valley Mfg. Co., 167 USPQ 304, 309 (TTAB 1970); Gaylord Bros., Inc. v. Strobel
Prods. Co., Inc., 140 USPQ 72, 74 (TTAB 1963); J. Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 18:4 (4th ed. September 2016 Update).
Ms. Borroum was an actively involved member of the unincorporated group who
first used the mark BIKERS FOR BIKERS; she then served as an officer and director
of Bikers For Bikers, Inc.28 which continued to hold the fundraising BIKERS FOR
BIKERS rallies and provided needy bikers and their families with assistance with
food, clothing, house payments, medical bills and funerals. Although the certificate of
authority of Bikers For Bikers, Inc. was forfeited on February 14, 2003, the mark
BIKERS FOR BIKERS continued to be used for the years 2003 to 2014 by a group of
people, including Ms. Borroum, that were involved with Bikers For Bikers, Inc., and
who then re-incorporated under the name Bikers For Bikers of Texas. Ms. Borroum
serves as President and a Board member of Petitioner which continues to use

28 Respondent’s Exhibit #2B is a copy of the Articles of Incorporation for Bikers For Bikers
Inc. that lists the Board of Directors. (20 TTABVUE 67). Although the name Phyllis Borroum
is not identified as a Board member, Phyllis McNeal is listed as a Vice President. Given Ms.
Borroum’s testimony that she served on the Board of Directors of Bikers For Bikers Inc. from
its first chartering, (15 TTABVUE 12), we assume that she was previously known as Phyllis
McNeal.
Cancellation No. 92062700
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BIKERS FOR BIKERS in the same fundraising charitable efforts.29 Given Phyllis
Borroum’s key involvement in the activities provided by closely related entities over
the life of the mark BIKERS FOR BIKERS, she is a person with extensive, actual
knowledge and we find her testimony to be clear. Based on her testimony and other
supporting evidence, we conclude that the rights in the mark were transferred by
implied assignment and have come to reside in Petitioner. The record does not
controvert this finding.
VI. Conclusion
Considering all of the evidence, we conclude that the mark BIKERS FOR BIKERS
has been in continuous and uninterrupted use by Petitioner and its predecessors-in-
interest as early as 1990. Petitioner is the successor-in-interest to the mark BIKERS
FOR BIKERS and the good will associated therewith. Hylo Co., Inc. v. Jean Patou,
Inc., 215 F.2d 282, 103 USPQ 52, 54 (CCPA 1954). Petitioner’s credible declaration
testimony, together with corroborating evidence, satisfies Petitioner’s burden of proof
in showing, by a preponderance of the evidence, that it has priority of use by virtue
of an implied assignment from its predecessors-in-interest. Respondent’s assertion of
abandonment of the BIKERS FOR BIKERS mark is incorrect since there is neither
evidence of any intent to abandon nor a period of nonuse of the mark BIKERS FOR
BIKERS. Even accepting that Respondent’s date of first use of its BIKERS FOR
BIKERS FOUNDATION mark was in 2009, that is many years after Petitioner’s
priority date.

29 Declaration of Phyllis Borroum ¶¶ 5, 7-9 (15 TTABVUE 11-12).
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Inasmuch as the parties have stipulated to likelihood of confusion and Petitioner
has established priority in the mark BIKERS FOR BIKERS, judgment is entered in
favor of Petitioner.
Decision: The Petition for Cancellation of Registration No. 4402786 is granted
and the Registration will be cancelled in due course.