Cash Haggadonev.Joseph A. Cavanna

Trademark Trial and Appeal Board

Sep 10, 2001

No. 91115867 (T.T.A.B. Sep. 10, 2001)

Mailed: September 10, 2002
Paper No. 35
CEW

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

Cash Haggadone
v.
Joseph A. Cavanna
_______

Opposition No. 115,867
to Application No. 75/550,732
filed on September 10, 1998
_______

Eric M. Trelz and Ashley Ratcliffe Beumer of Polsinelli,
Shalton & Welte for Cash Haggadone.

Joseph A. Cavanna, Pro Se.
_______

Before Quinn, Hohein and Walters, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Cash Haggadone filed his opposition to the
application of Joseph A. Cavanna to register the mark
ABERDEEN for “entertainment services, namely, live
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Opposition No. 115,867
2
performances by a musical group,” in International Class
41.1
As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s services,
so resembles opposer’s previously used mark ABERDEEN for
“entertainment services, namely, live performances by a
musical group” as to be likely to cause confusion, under
Section 2(d) of the Trademark Act.
Applicant, in his answer, admitted that the marks
are identical, but denied the remaining salient
allegations of the claim.
The Record
The record consists of the pleadings; the file of
the involved application; opposer’s discovery deposition
of applicant, specified responses of applicant to
opposer’s requests for admissions, and applicant’s filing
receipt, all made of record by opposer’s notice of
reliance; opposer’s responses to applicant’s
interrogatories and document requests, and an excerpt
from an Internet web site,2 all made of record by

1 Application Serial No. 75/550,732, filed September 10, 1998, based
upon use of the mark in commerce, alleging first use as of February 1,
1997 and first use in commerce as of February 17, 1998.

2 Opposer objects to the authenticity of the Internet web site excerpt
submitted by applicant and further contends that it is inadmissible on
the ground of hearsay. Opposer mistakenly relies on Raccioppi v.
Opposition No. 115,867
3
applicant’s notice of reliance; the testimony depositions
of Cash Haggadone, opposer, with accompanying exhibits;
and the testimony deposition of Joseph Cavanna, with
accompanying exhibits. Both parties filed briefs on the
case but a hearing was not requested.
Analysis
The parties’ marks are identical, as applicant
admits, and their entertainment services are identical.
Both opposer and applicant have musical groups that
provide live performances; they have both produced and
sold CDs of their music; and the evidence establishes
that they both market their services and their music to
the same classes of purchasers through the same channels
of trade. For example, they both market their music
directly to radio stations and via the Internet and
through record stores and live performances, among other
methods, to the general public.

Apogee, Inc., 47 USPQ2d 1368 (TTAB 1998,) for the proposition that an
Internet web site excerpt must be authenticated by the testimony of the
person who downloaded the page. However, Raccioppi is distinguished
from the situation herein because it pertains to an interlocutory
motion, rather than to a document submitted during trial under notice of
reliance. The Internet web page is clearly a publicly available
document and it contains, on its face, the date and the web site from
which it was downloaded. Therefore it is adequately authenticated and
we have considered it to be part of the record. We agree with opposer
that the information contained therein is hearsay for the truth of that
information and we have not considered it for that purpose.

Opposition No. 115,867
4
In view of the undisputed facts that the marks and
services of the parties are identical, it is clear that
confusion as to the source of these services is likely.
Thus, the issue remaining to be decided, and the
primary issue in this case, is priority of use.
Applicant’s filing date of September 10, 1998 is, of
course, a constructive date of first use for the purpose
of this proceeding. In the application, applicant claims
first use as of February 1, 1997 and use in commerce as
of February 17, 1998. However, applicant seeks, in this
proceeding, to establish earlier dates of first use,
which he must establish by clear and convincing evidence,
rather than a mere preponderance of the evidence. See
Hydro-Dynamics, Inc. v. George Putnam & Co., Inc., 811
F.2d 1470,
1473, 1 USPQ2d 1772, 1773-74 (Fed. Cir. 1987); and Elder
Mfg. Co. v. International Shoe Co., 194 F.2d 114, 118, 92
USPQ 330, 332 (CCPA 1952).
We begin with applicant’s evidence. Applicant has
established, by clear and convincing evidence, that he
first used ABERDEEN as a trademark to identify his band
in June or July 1996; that for the second half of 1996,
applicant was writing music and promoting the band, and
the band was practicing and recording; that ABERDEEN
Opposition No. 115,867
5
finished its first recording in December 1996 and
released the recording in January 1997; that the first
live performance of applicant’s band ABERDEEN was on
February 15, 19973; and that applicant’s band has
continued to perform live regularly, and has released
songs and albums on tape, CD and on the Internet, has had
its music played on radio, and has sold its CDs over the
Internet, at performances, and in retail stores.
Applicant’s band has performed in New York, New Jersey
and Pennsylvania.
Turning to opposer, opposer alleged in his notice of
opposition that he has been using the mark ABERDEEN in
connection with the same services as applicant since at
least October 1997. During trial, opposer sought to
establish his use of ABERDEEN in connection with his band
since 1994. Applicant contends that opposer has not met
his burden of establishing use earlier than October 1997.
Opposer testified that he formed his band, called
ABERDEEN, in July or August 1994; that, from August to
October 1994, he wrote songs and distributed tapes to
coworkers to promote the band; that the band’s first live
performance was on October 31, 1994, in Overland Park,

3 Applicant’s band’s first live performance for which they received
monetary compensation was October 16, 1997. Applicant sold CDs at each
Opposition No. 115,867
6
Kansas, followed by a performance on November 17, 1994,
in Kansas City, Missouri. While opposer states that the
band was paid for its performances, most of the
performances from 1994 to 1997 were house parties, so
opposer has no documentation in support of these
statements. Opposer stated that the band continued to
perform about once a month; that opposer created the
band’s web site in late 1995; and that, in 1997, the band
became successful and began playing in clubs, for which
opposer has supporting documentation. Opposer’s band has
performed in Kansas, Missouri, Nebraska, Iowa, Illinois
and Minnesota, and had its music played by radio
stations. Opposer has sold most of the band’s music
recordings through its website and Amazon.com, with
additional sales at performances and retail stores in
areas where the band has performed. The band’s first
professionally produced CD was released in September
1997, and its first full-length album was released
September 19, 1999.
Although opposer does not support his testimony
about the band’s pre-1997 performances with paper
documentation such as fliers or receipts, applicant does
not present evidence that reasonably challenges opposer’s

of its performances regardless of the band’s compensation for the
Opposition No. 115,867
7
credibility. Further, opposer’s explanation as to why he
has no supporting documentation is reasonable.
Therefore, we find that opposer has established his use
of the mark ABERDEEN in connection with a band that has
been providing live musical performances since October
1994.4 Applicant’s evidence demonstrates that his band’s
first live performance, the services identified in the
application, was February 15, 1977. Since opposer’s
first use date significantly precedes applicant’s first
established date of use, opposer has priority in this
case.
Therefore, in view of opposer’s priority and the
fact that applicant and opposer use identical marks in
connection with identical services, a likelihood of
confusion exists and registration is denied to applicant.
Decision: The opposition is sustained and
registration to applicant is refused.

performance.
4 Such use is actual use, not use analogous to trademark use, as
suggested by applicant.