David Milligan and Marc Mirandav.Inhand Mobile Entertainment, LLC

Trademark Trial and Appeal Board

May 28, 2008

No. 91163338 (T.T.A.B. May. 28, 2008)

Mailed:
May 28, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

David Milligan and Marc Miranda
v.
Inhand Mobile Entertainment, LLC
________

Opposition No. 91163338
against Serial No. 78308536
_______

David Milligan and Marc Miranda, pro se.

Craig Weiss of Silverberg & Associates for Inhand Mobile
Entertainment, LLC.
_______

Before Bucher, Zervas and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Inhand Mobile Entertainment, LLC seeks registration on
the Principal Register of the mark MOANTONES (in standard
character format) for services recited in the application, as
amended, as follows:
“entertainment services, featuring, the
provision of specialty ringtones and audio
entertainment files consisting of sound and
voice recordings, namely, music and sex-
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91163338
- 2 -
oriented material for consumer use via
wireless devices” in International Class 41.1
David Milligan and Marc Miranda timely filed their
opposition to the application. In paragraphs one and two of
their notice of opposition, opposers claim to have coined
this term and claim a priority over applicant.2 In
paragraph three, opposers assert that the term “moantones”
should be considered a generic term. In their final brief,
opposers argue that permitting applicant to register this
term would unfairly restrict opposers’ ability to describe
the product they create and sell on their website address
(having the domain name of “moantones.com”). At the very
least, opposers assert that the term “moantones” is merely
descriptive in that it directly describes a characteristic
or quality of the underlying product.
In its answer, applicant denied the salient allegations
of the notice of opposition, and asserted affirmative
defenses of priority of use and opposers’ unclean hands.

1 Application Serial No. 78308536 was filed on October 2, 2003
based upon applicant’s allegation of first use anywhere and first
use in commerce at least as early as September 30, 2003.

2 We construe this portion of the pleadings as opposers’ claim
of priority and likelihood of confusion, with alternative claims
that applicant’s applied-for matter is merely descriptive, if not
generic.
Opposition No. 91163338
- 3 -
In reviewing the record of this proceeding, we find
that neither opposers nor applicant have timely submitted
for the record any evidence or testimony during their
respective testimony periods. Materials attached to the
notice of opposition or to applicant’s answer are not of
record.
In any opposition proceeding, the opposer bears the
burden of proof, whatever the alleged grounds for
opposition. However, in light of opposers’ failure to offer
any evidence into the record during their testimony period,
we enter judgment against opposers for their failure to
prove their case. 37 CFR § 2.123(l); see also Original
Appalachian Artworks Inc. v. Streeter, 3 USPQ2d 1717, 1717
n.3 (TTAB 1987) [stating that a party may not reasonably
presume evidence is of record when that evidence is not
offered in accordance with the rules].
Decision: The opposition is hereby dismissed.