David A. Lancasterv.Angel Pictures International LLC

Trademark Trial and Appeal Board

Jun 1, 2009

No. 91177871 (T.T.A.B. Jun. 1, 2009)

Mailed: June 1, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

David A. Lancaster
v.
Angel Pictures International LLC
_______

Opposition No. 91177871
to Application No. 78963256
filed on August 29, 2006
_______

David A. Lancaster, Pro Se.

Angel Pictures International LLC, Pro Se.
_______

Before Walters, Bucher and Zervas, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

David A. Lancaster filed his opposition to the
application of Angel Pictures International LLC to register
the mark shown below for “clothing, namely, tops, shirts,
sweat suits, hats, socks, belts, pants, scarves,
undergarments, shorts, dresses, head bands, shoes, and

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91177871
2
boots,” in International Class 25.1 The application
includes a claim of the colors black, white, pink, silver,
gray, red, and gold as features of the mark; and a
description of the mark as “consist[ing] of a pink heart,
words "Pink Mafia" in the colors pink and white, crossed
daggers depicted in silver, black, and gray, and flames in
red and gold all on a black square.”

As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s goods so
resembles opposer’s previously used mark PINK MAFIA for a
variety of men’s women’s and children’s clothing as to be
likely to cause confusion, under Section 2(d) of the
Trademark Act.
Applicant, in its answer, denied the salient
allegations of the claim.2
The Record

1 Application Serial No. 778963256, filed August 29, 2006, based upon an
allegation of a bona fide intention to use the mark in commerce in
connection with the identified goods
2 In its order of September 9, 2007, the Board construed applicant’s
response to the notice of opposition as a general denial of the
allegations contained in the pleading.

Opposition No. 91177871
3
The record consists of the pleadings and the file of
the involved application. Applicant did not file any
testimony or other evidence and only opposer filed a brief.3
While opposer submitted a list of six people he
intended to depose for testimony, opposer did not submit any
testimony depositions. Opposer did, however, submit, as
exhibits G through L to its notice of reliance, affidavits
by six individuals. Testimony is to be taken by deposition
upon oral examination of witnesses. Trademark Rule
2.123(a)(1), 37 CFR §2.123(a)(1). Only upon written
agreement of the parties may the testimony of a witness be
submitted by affidavit or declaration. Trademark Rule
2.123(b), 37 CFR §2.123(b). See also TBMP § 716.
Therefore, because these declarations (notice of reliance
exhibits G through L) are not the proper means for
introducing witness testimony, the declarations have not
been considered.
Additionally, opposer’s notice of reliance includes, as
exhibits A through F, material, including purchase orders
and contracts, that is not amenable to submission by notice
of reliance. See, Trademark Trial and Appeal Board Manual
of Procedure (TBMP), Sections 707 and 708, and 37 CFR
2.122(e). In particular, the only evidence that may be
submitted by notice of reliance is official records and

3 Because applicant did not file a brief on the case, opposer’s reply
Opposition No. 91177871
4
printed publications, which includes books and periodicals
available to the general public in libraries or of general
circulation among members of the public. See also Glamorene
Products Corporation v. Earl Grissmer Company, Inc., 203
USPQ 1090 (TTAB 1979); Wagner Electric Corporation v. Raygo
Wagner, Inc., 192 USPQ 33, n. 10 (TTAB 1976) (“Applicant's
objections to opposer's catalogs and house publications are
well taken because it has not been shown that they are
‘available to the general public in libraries or of general
circulation’”); and Standard Pressed Steel Co. v. Midwest
Chrome Process Company, 183 USPQ 758, n. 2 (TTAB 1974)
(Brochures and price lists distributed by third parties do
not constitute printed publications, such as books and
periodicals, available to the general public in libraries or
of general circulation). For this reason, exhibits A
through F to opposer’s notice of reliance have not been
considered.
Because opposer bears the burden of proof and he has
not submitted any acceptable evidence establishing either
his standing or priority of use, the opposition must fail.
Decision: The opposition is dismissed with prejudice.
A notice of allowance will issue in the application in due
course.

brief is inappropriate and has not been considered.