David K. White and Elizabeth L. Whitev.The Partnership of Edward McNamara and Wayne Meyers

Trademark Trial and Appeal Board

Aug 24, 2007

No. 91154635 (T.T.A.B. Aug. 24, 2007)

Mailed:
August 24, 2007
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

David K. White and Elizabeth L. White
v.
The partnership of Edward McNamara and Wayne Meyers
________

Opposition No. 91154635
against Serial No. 76288617
_______

Julie Ann Gregory, James R. Higgins, Jr. and Dana L.
Collins of Middleton Reutlinger for David K. White and
Elizabeth L. White.

Edward McNamara, Pro Se, for the partnership of Edward
McNamara and Wayne Meyers.
_______

Before Quinn, Bucher and Mermelstein, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
The partnership of Edward McNamara and Wayne Meyers
seeks registration on the Principal Register of the
following mark:

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91154635
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for services recited in the application, as amended, as
follows:
“educational and entertainment services
rendered in a theme park, featuring various
Bible stories” in International Class 41.1
David K. White and Elizabeth L. White have opposed
registration, asserting that applicant’s mark, when used in
connection with applicant’s services, so resembles a mark
previously used by opposers, as to be likely to cause
confusion, to cause mistake or to deceive under Section
2(d) of the Lanham Act, 15 U.S.C. § 1052(d). Specifically,
opposers allege, inter alia, that they have adopted and
used in interstate commerce the service mark BIBLELAND in
connection with outdoor recreational and educational
facilities in the nature of playgrounds that incorporate
religious themes since at least as early as August 4, 1991,
during which time this mark has developed substantial good
will and recognition among the consuming public. Notice of
Opposition at ¶ 3.

1 Application Serial No. 76288617 was filed on July 23, 2001,
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce. Applicant has disclaimed the exclusive
right to use the word “Bible” apart from the mark as shown. The
application contains the statement that “The mark consists of
Noah’s arc with family and animals.”
Opposition No. 91154635
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The Record
By operation of the rules, the record includes the
pleadings and the file of the opposed application. In
support of their case, opposers made of record the
testimony deposition of opposer, David K. White, dated
April 25, 2005, with attached exhibits; the testimony
deposition of opposer, Elizabeth L. White, dated May 5,
2005; under a Notice of Reliance, two newspaper articles
from August 1991; and finally, opposers provided for the
record, copies of two pending applications, the first owned
by opposers, and a second owned by an individual named
Wayne Clayton Meyers, evidently Mr. McNamara’s partner:
BIBLELAND for “recreational centers featuring educational
attractions with religious themes” in Int. Cl. 41;2

for “Biblical theme and amusement parks with
additional guest and visitor facilities domestic and
international sites, (the scope and size of the parks
range up to 1000 acres or more) recreational,
educational and training facilities incorporating
actual Holy Scriptures and authentic characters from
the Bible to include broadcast (television, radio, and
worldwide webb [sic]) printing, film and television
production” in International Class 41.3

2 Application Serial No. 78165485 was filed by David White
and Beth White, U.S. citizens and residents of New Albany,
Indiana, on September 18, 2002, claiming first use anywhere and
first use in commerce at least as early as August 4, 1991. This
application has been suspended pending disposition of the subject
application.

3 Application Serial No. 76472715 was filed by Wayne Clayton
Myers, a U.S. citizen and resident of Branson, Missouri, on
December 6, 2002, claiming a bona fide intention to use the mark
in commerce.

Opposition No. 91154635
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As its case in chief, applicant submitted the
testimony deposition of Edward McNamara, dated July 12,
2005, with attached exhibits.
Factual Findings
Opposer
Ashley White died unexpectedly in the fall of 1987
before she reached the age of four. Her parents, David and
Elizabeth (“Beth”) White, spent the next four years
creating a memorial for Ashley at a personal cost of
between $50,000 and $70,000. Ashley’s Bibleland is co-
located with
Northside Christian
Academy, on Grant
Line Road in New
Albany, Indiana, and
was opened to the
public on Sunday,
August 4, 1991,
before 600 – 900
persons.
4

4 This is a photocopy of a photograph depicting the sign at
the entrance to the playground. David K. White depo. Ex. 4.
Opposition No. 91154635
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5
This playground facility covers about four thousand
square feet and includes play areas designed as Noah’s Ark,
Jonah and the Whale, the City of Jerusalem, Jesus’ Sermon
on the Mount, a fisherman’s net, etc. A second, larger
BIBLELAND playground facility was opened in the same Indiana
town in 2004 at the Northside Christian Church, on
Charlestown Road. This playground facility includes
additional features such as Zacchaeus and the tree of
knowledge, a cave where children can listen to Bible
stories over headphones, and other Bible-related
activities. The cost of the second BIBLELAND playground
facility exceeded $200,000. The Whites testified that both
locations continue to draw users from Indiana, Kentucky and
other neighboring states. Northside Christian, the Whites’

5 David K. White depo. Ex. 3.
Opposition No. 91154635
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home church, is a licensed user of the mark, but the Whites
retain control over the quality and nature of the BIBLELAND
playground facilities.
Applicant
Edward McNamara and his partner, Wayne Meyers,
conceived of “Bible Land” as a way to teach Bible stories
and educate the public generally about the Bible through
the use of various Biblical themes. Their grand vision was
to “start a theme park in California, just like Disneyland
….” (McNamara Depo. at 27). In August 1985, they obtained
a state certificate that appears to be a temporary
reservation of the corporate name “Bible Land” from the
California Secretary of State.
Pointing to copies of entrance tickets, Mr. McNamara
alleges the BIBLE LAND mark was used in connection with a
petting zoo / puppet show between 1986 and 1989. In his
testimony, McNamara explained that the
purpose of charging admission for the
petting zoo was “to keep the whole
concept going, ‘cause we were planning
on trying to figure out what to do … I
mean, we’re talking millions of dollars

Opposition No. 91154635
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… try[ing] to figure out how to get this whole — how do
you, you know, develop a, you know, build a theme park.”
(Id. at 30, 33).
As to the partnership’s usage of the mark BIBLE LAND
between 1990 and the filing of the involved intent-to-use
application in 2001, although McNamara testified to “a 28 -
30 page Business Plan,” “hats and shirts which had the name
‘Bible Land’ upon them,” claimed uses in Florida and
Nevada, uses outside Disneyland, claimed aerial
photography, and claimed banners at his daughters’ private
birthday parties, none of this alleged material was ever
produced during discovery, nor was any of it identified and
introduced in Mr. McNamara’s testimonial deposition as
exhibits.
Preliminary matters
Before analyzing the merits of this case, we turn to
opposers’ objections to much of the evidence that applicant
has proffered during the litigation of this opposition
proceeding, as well as objections to applicant’s final
brief.
Throughout his testimony, Mr. McNamara attempted to
prove prior actual use by reference to activities by Wayne
Meyers. Opposers repeatedly objected to references to
purported actions of Mr. Meyers as inadmissible hearsay.
Opposition No. 91154635
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Fed. R. Evid. § 802; and NutraSweet Company v. K&S Foods,
Inc., 4 USPQ2d 1964, 1965 (TTAB 1987). We agree with
opposers that significant portions of McNamara’s testimony
about actions purportedly taken by Meyers were based on
conversations that Meyers reportedly had with McNamara, and
we have excluded this from our consideration as
constituting inadmissible hearsay. McNamara Depo. at 9-12,
21, 78 & 81.
Secondly, applicant repeatedly attempted to introduce
testimony about its claimed prior uses by reference to
documents or things that McNamara failed to produce or
significant events he failed to disclose during discovery.
Twice opposers sought to obtain additional discovery
through motions to compel. Moreover, originals of copied
documents and more complete documents referenced in
McNamara’s trial testimony deposition were promised by
applicant but never delivered. This testimony concerned
applicant’s claimed use of the mark in Florida and Nevada,
uses outside Disneyland, claimed aerial photographs and
claimed banners at McNamara’s daughters’ private birthday
parties, and a detailed business plan. Opposers maintained
their objections throughout the deposition and reiterated
their objections in their briefs. Again, we agree with
opposers, and strike all references to such events.
Opposition No. 91154635
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ConAgra, Inc. v. Saavedra, 4 USPQ2d 1245, 1247 fn.6 (TTAB
1987) [party cannot rely on materials not produced in
discovery where the materials were within the scope of the
adverse party’s requests]; see also Trademark Rule of
Practice 2.120(g), 37 C.F.R. § 2.120(g); Fed. R. Civ. Proc.
§§ 37(b)(2)(C) and (c)(1).
Among other questions about the trustworthiness of
applicant’s meager documentary evidence was opposers’
concern about the probative value of mere photocopies of
petting zoo / puppet show tickets that easily could have
been manipulated digitally. [see the images supra at p. 6]
While opposers did inquire about these particular
originals, applicant never produced the originals. On this
record, these concerns might be well founded. However,
this is an objection that could be made to many pieces of
documentary evidence in Board cases. Without more, we find
that we cannot exclude this evidence simply because it
might have been fabricated.
Opposers have pointed to other troubling
contradictions surrounding McNamara’s signing of his
testimony declaration,6 discrepancies in mailing dates

6 While Mr. McNamara alleged under oath that he signed the
transcript on January 6 or 7, 2006, one copy in the record shows
his signature as having been affixed on July 12, 2005 and another
as of September 28, 2005.

Opposition No. 91154635
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revealed by this record7 and significantly-different looking
signatures of Mr. McNamara and Mr. R.D. Kelley, among
others. While we share opposers’ concerns about
applicant’s apparent disorganization and lack of respect
for the opposition process McNamara demonstrated throughout
the prosecution of this proceeding, and while we have grown
weary of applicant’s endless excuses for failing to play by
the rules, we are not convinced that they are so egregious
that we should sanction applicant by ruling summarily in
opposers’ favor. And while we are clearly struck by the
very different looking signatures of the same affiant shown
on submissions separated by time, we are not handwriting
experts, and hence cannot conclude that certain signatures
purporting to be those of Messrs. McNamara and Kelly, for
example, were actually placed on these documents by the
hands of others.
Finally, we turn to the several questions surrounding
the timeliness of the filing of applicant’s brief. In the
Board order of February 11, 2005, opposers’ trial brief was
set by the rules to be due on October 25, 2005. Opposers
actually filed their brief early, on October 20, 2005.

7 The documents allegedly served on opposers’ counsel and
mailed to the Board on January 6, 2006, according to the
certificates of mailing, were evidently mailed at various points
over the next week.

Opposition No. 91154635
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Applicant’s brief was then due no later than November 24,
2005. Applicant asked for an initial extension for filing
its brief until December 1, 2005, a second extension until
December 21, a third extension until December 31, and a
fourth extension until January 7, 2006.8 Opposers
specifically objected to this fourth extension and asked
for an order sustaining the opposition. Later, opposers
filed a separate, outstanding motion to strike applicant’s
brief from the record as untimely filed and fraudulent.
Although the earlier requested deadlines for
applicant’s filing of its brief had all expired before the
Board received the fourth extension request, it is clear
from the flurry of activity undertaken by Mr. McNamara in
late-December 2005 and early-January 2006 that he had not
“lost interest” in defending this application. Hence,
while we are not happy with applicant’s overall conduct in
defending this case, we grant applicant’s request to reopen
the period for filing its brief.
Nonetheless, even with our accepting the fourth
extension request, the brief was still filed in an untimely

8 It is not clear from the record that any of these requests
were timely received by the Office as applicant was using the
Board’s old Arlington mailing address – at that point more than a
year out of date. Incorrectly addressed mail is not entitled to
the benefit of the date of deposit under Trademark Rule 2.197
(certificate of mailing) or the Express Mail provisions of
Trademark Rule 2.198.
Opposition No. 91154635
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manner. The certificate of mailing rule explicitly
requires that the materials be deposited with the U.S.
Postal Service. Hence, applicant’s use of FedEx shipping
services does not entitle it to the benefit of timely
mailing under the provisions of the certificate of mailing
procedures. Similarly, a submission sent to an incorrect
address, as is the case with applicant’s brief, is not
entitled to the benefit of the certificate of mailing
procedures. See 37 C.F.R. § 2.197(a)(1)(i)(A).
We hasten to add, however, that even if considered,
applicant’s brief would not compel a different decision on
the merits in this case.
ANALYSIS
Standing

Opposers’ standing is a threshold inquiry made by the
Board in every inter partes case. In Ritchie v. Simpson,
170 F.3d 1092, 50 USPQ2d 1023, 1029 (Fed. Cir. 1999), the
Federal Circuit enunciated a liberal threshold for
determining standing, i.e., the opposers must have: (1) a
legitimate personal interest in the opposition, and (2) a
reasonable basis for the belief of damage. See also
Jewelers Vigilance Committee Inc. v. Ullenberg Corp.,
823 F.2d 490, 2 USPQ2d 2021, 2023 (Fed. Cir. 1987); and
Opposition No. 91154635
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Lipton Industries, Inc. v. Ralston Purina Company, 670 F.2d
1024, 213 USPQ 185 (CCPA 1982). David K. White and
Elizabeth L. White allege in their Notice of Opposition
that they will be damaged if the partnership of Edward
McNamara and Wayne Meyers were to be granted a registration
for applicant’s mark, and have submitted evidence of
opposers’ preexisting, common law rights to use of this
term. Additionally, there is evidence that opposers’
pending trademark application for the mark BIBLELAND has
been suspended pending the outcome of this proceeding.
Together, these facts show that opposers have a “real
interest” in this proceeding. See 15 U.S.C. §1064; and
TBMP § 303.03 (2d ed. rev. 2004).
Priority

With regard to the issue of priority in relation to
the parties’ respective marks, we have sufficient evidence
of record to conclude that opposers have used their service
mark in interstate commerce since at least as early as
August 4, 1991. The critical question then, for our
determination herein, is whether applicant has demonstrated
continuous use in commerce dating to some point prior to
August 1991.
According to the evidence of record in this
proceeding, the mark applicant was using in the 1986 to
Opposition No. 91154635
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1989 timeframe consisted of the words BIBLE LAND only,
without the Noah’s ark design shown in its intent-to-use
application.9 This alleged prior use was solely in the
context of a petting zoo and/or puppet show. Moreover,
according to McNamara’s own testimony, the form of
entertainment was remarkable for its amateurishness. Even
giving applicant the benefit of the doubt, there were at
most a dozen or so of these extremely small events over a
three- to four-year period. This “meager trickle” of
activity constitutes de minimus usage, particularly in
light of the inactivity over the following decades. There
is precious little evidence in the record to support the
finding of any meaningful activities by applicant under
this mark since 1990. Even Mr. McNamara characterizes the
present state of the business as “this theme park idea”
[McNamara Depo. at 41] – clearly more conceptualization and
hope than concrete implementation of a business plan. It

9 As pointed out by opposers, even if this use in 1986 to
1989 should be found to be bona fide use of a mark in the
ordinary course of trade, due to the difference in the marks and
the differences with the claimed services of the intent-to-use
application, it would not be possible for applicant to “tack”
onto this earlier claimed usage. See Van Dyne-Crotty, Inc. v.
Wear-Guard Corp., 926 F.2d 1156, 17 USPQ2d 1866, 1868-69 (Fed.
Cir. 1991) [“tacking” should be permitted only in “rare
instances,” and then only when the previously used mark was “the
legal equivalent of the mark in question or indistinguishable
therefrom”]; see also American Paging Inc. v. American Mobilphone
Inc., 13 USPQ2d 2036, 2038 (TTAB 1989), aff’d in unpublished
opinion at 923 F.2d 869, 17 USPQ2d 1726 (Fed. Cir. 1990).

Opposition No. 91154635
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is clear that applicant has yet to use the applied-for mark
in connection with theme park services. In light of this
finding, the earliest date applicant can rely upon is the
filing date of its intent-to-use application, or July 23,
2001. Accordingly, opposers have demonstrated their
priority.
Likelihood of Confusion

We turn, then, to the issue of likelihood of confusion
under Section 2(d) of the Trademark Act. Specifically, the
focus of our determination is on the issue of whether
applicant’s mark, when used in connection with educational
and entertainment services rendered in a theme park,
featuring various Bible stories, so resembles opposers’
mark as to be likely to cause confusion, to cause mistake
or to deceive as to source or sponsorship.
Our determination must be based upon our analysis of
all of the probative facts in evidence that are relevant to
the factors bearing on the issue of likelihood of
confusion. See In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In considering the evidence of
record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the
Opposition No. 91154635
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cumulative effect of differences in the essential
characteristics of the services and differences in the
marks.” See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
The marks

Applicant has applied for the
term BIBLE LAND in a special form
drawing containing a hand-drawn but
unmistakable sketch of Noah’s ark.
As seen on the signage posted at the playground,
opposers have used the designation “Ashley’s Bibleland.”
In support of its stated position that there is no
likelihood of confusion herein, applicant repeatedly points
out that opposers’ mark is “Ashley’s Bibleland,” not
BIBLELAND alone. However, we find that these marks are
quite similar. The possessive form of “Ashley’s” tells the
potential playground visitor that the recreational area is
a “Bibleland” having a connection to someone named Ashley.
Hence, in this context, the suggestive term “Bibleland”
retains its primary function as a source identifier. In
spite of the visual and aural dissimilarities created by
opposers’ placing the word “Ashley’s” before the term
Opposition No. 91154635
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“Bibleland,” we find that the respective marks are similar
as to connotation and commercial impression. This is
consistent with the front-page, newspaper headline in The
Tribune (New Albany, IN), supra at p. 5, “Bibleland is
positive of negative situation” (emphasis supplied),
reporting on the grand opening of Ashley’s Bibleland.
Moreover, while applicant’s mark does contain an additional
design feature, given the ready perceptions of members of
the public at large that the Noah’s ark pictorial
represents a well-known Bible story, this merely reinforces
the meaning and commercial impression of the term
BIBLELAND. Accordingly, this critical factor also favors
the position of opposers.
Similarity of Trade Channels

The depositions of Mr. McNamara and of the Whites show
that both parties’ services would be aimed at families and
the children of those families. Hence, this du Pont factor
also favors the position of opposers.
Conditions Under Which the Services Are Purchased

We agree with opposers that potential consumers of
these respective services would be ordinary members of the
general public. The admission fee to applicant’s small
events in 1986 to 1989 ranged from free to minimal. While
Opposition No. 91154635
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there may be logistical challenges to gaining access, those
visiting “Ashley’s Bibleland” are evidently not charged a
fee for entry. Hence, we find that these classes of
ordinary consumers would not likely discriminate among the
several BIBLELAND / BIBLE LAND providers.
The services

The parties concur that the Board must compare the
recitation of services found in applicant’s application
with the services on which opposers have shown common law
usage of their mark.
Applicant has applied for “educational and
entertainment services rendered in a theme park, featuring
various Bible stories.” Opposers have shown usage of their
service mark in connection with outdoor recreational and
educational facilities in the nature of playgrounds that
incorporate religious themes.
The term “theme park” suggests a collection of
mechanical amusement rides in a setting that is more
elaborate than a simple playground and usually will have
been designed for the purpose of entertaining a fairly
large group of people, including small children, teenagers
and adults. A playground, like many city parks, generally
has no amusement rides, is smaller in size, generally does
not provide onsite supervision and caters mostly to small
Opposition No. 91154635
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children. However, it is clear that both parties’ services
would involve recreational or entertainment facilities
having as a primary focus Christian religious education.
Hence, upon weighing all of the du Pont factors
herein, and especially in light of the strong similarity of
the involved marks, we find that these respective services
are sufficiently related – particularly given the common
focus on Christian education in a recreational setting – to
support a finding of likelihood of confusion.
Conclusion: Likelihood of Confusion

In conclusion, we find that both parties’ services are
aimed at families and the children of those families, and
hence will share the same channels of trade; that potential
consumers of these respective services would be members of
the general public who would approach these free or
inexpensive services without a high degree of care or
discrimination; that these respective marks are confusingly
similar as to connotation and commercial impression, and
finally, that these respective services – inasmuch as both
are focused on Christian education in a recreational
setting – are therefore somewhat related.
Opposition No. 91154635
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Decision: The opposition is sustained under Section
2(d) of the Lanham Act, and registration to applicant is
hereby denied.