Choice First Distribution, LLCv.John L. Brown

Trademark Trial and Appeal Board

Dec 21, 2007

No. 92044116 (T.T.A.B. Dec. 21, 2007)

Mailed:
December 21, 2007
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Choice First Distribution, LLC
v.
John L. Brown
________

Cancellation No. 92044116
Against Registration No. 2780780
_______

Michael Cerrati and John Alumil of Patel & Alumil, PC for
Choice First Distribution, LLC.

John L. Brown, pro se.
_______

Before Bucher, Zervas and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Choice First Distribution, LLC (petitioner) has
petitioned to cancel the following registration owned by
John L. Brown (respondent) for the mark CHRONIC 187 for
”non-alcoholic carbonated and non-carbonated beverages,
namely soda and energy drinks” in International Class 32.1
As grounds for cancellation petitioner asserts that
respondent fraudulently submitted an Allegation of Use in
order to induce the Trademark Examining Attorney to approve
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Cancellation No. 92044116
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his mark for registration; that any use of respondent’s mark
prior to filing his Allegation of Use was merely “token use”
of the mark and not in fact a bona fide use in the ordinary
course of trade, making the registration void ab initio; and
that respondent’s nonuse of the mark for at least three
years created a rebuttable presumption that respondent had
abandoned his mark.
Respondent, in his answer, denies the salient
allegations in the petition for cancellation.
Petitioner did not take any testimony, but filed three
separate notices of reliance on December 28, 2005,2 December
30, 20053 and January 4, 2006.4 Under the original trial
dates, petitioner’s testimony period closed on December 27,
2005. Based upon an earlier order of the board, petitioner
knew that these submissions were to be accorded no

1 Registration No. 2780780 issued November 4, 2003.

2 Prosecution entry #9, filed via ESTTA on December 28, 2005,
relying upon all of Respondent’s “Responses to Petitioner’s First
Set of Interrogatories to Respondent.” (21 pages including the
ESTTA cover sheet).

3 Prosecution entry #10, received by the United States Patent
and Trademark Office on December 30, 2005 (absent a certificate
of mailing), relying upon certain of Respondent’s “Responses to
Petitioner’s First Set of Admissions to Respondent,” with the
attached documents authenticated by admission. (134 pages).

4 Prosecution entry #12, received by the United States Patent
and Trademark Office on January 4, 2006 (also absent a
certificate of mailing), submitting for the record a status and
title copy of Opposer’s Registration No. 2886508.

Cancellation No. 92044116
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consideration, and that under reset trial dates, its
testimony period closed on May 30, 2006, opening thirty days
prior thereto. Nonetheless, petitioner did not re-file
these three notices of reliance again until June 15, 2006.5
Again, they were late. Inasmuch as these notices were never
filed within any of petitioner’s testimony periods, none of
petitioner’s evidence can be given any consideration.
As to respondent’s several notices of reliance filed
September 5, 2006, copies of pages of the printed
publication Wheels Magazine from the years 2000, 2002, 2003,
2004 and 2005 are properly of record as printed publications
available to the general public. However, inasmuch as
petitioner has failed to submit in a timely manner during
its testimony period any portion of respondent’s “Responses
to Petitioner’s First Set of Interrogatories to Respondent,”
respondent cannot rely upon its own discovery responses.6

5 With prosecution entry #16, petitioner resubmitted
respondent’s “Responses to Petitioner’s First Set of
Interrogatories to Respondent,” prosecution entry #9 (now 22
pages including the second ESTTA cover sheet); with prosecution
entry #17, petitioner resubmitted for the record a status and
title copy of petitioner’s Registration No. 2886508, prosecution
entry #12, (now five pages including the second ESTTA cover
sheet); and with prosecution entry #18, petitioner resubmitted
respondent’s “Responses to Petitioner’s First Set of Admissions
to Respondent,” with the attached documents authenticated by
admission, prosecution entry #10, (now 135 pages including the
second ESTTA cover sheet).

6 Prosecution entry #20 contains many of the same documents
contained in petitioner’s untimely submissions of prosecution
entries ##9, 10, 16 and 18.
Cancellation No. 92044116
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Accordingly, the evidence of record includes the
pleadings, as amended, the file of the registration sought
to be cancelled and copies of pages of five editions of
Wheels Magazine. Both parties filed trial briefs.
Because Mr. Brown’s certificate of registration is
prima facie evidence of the validity of the registration and
continued use of the registered mark, the burden of proof is
placed upon Choice First Distribution, LLC, the petitioner
who seeks cancellation herein. 15 U.S.C. § 1057(b) (1988);
and J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960,
962-63, 144 USPQ 435, 437 (CCPA 1965). In any cancellation
proceeding, the petitioner bears the burden of proof by a
preponderance of the evidence, whatever the alleged grounds
for cancellation.
However, in light of petitioner’s failure to offer into
the record during its testimony period any evidence, we
enter judgment against petitioner for its failure to prove
its case.
Decision: The petition to cancel is dismissed.