Deborah Stiefermanv.Diane Scott

Trademark Trial and Appeal Board

Sep 9, 2021

91252130 (T.T.A.B. Sep. 9, 2021)

Mailed: September 9, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Deborah Stieferman

v.

Diane Scott
_____

Opposition No. 91252130
_____

Dutro E. Campbell II of Campbell IP for Deborah Stieferman.

Christopher J. Day of Day Law Firm for Diane Scott.
_____

Before Mermelstein, Lynch, and Dunn, Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:

Deborah Stieferman (Applicant) filed an application to register the standard
character mark SQUEEZE ME PLEASE! on the Principal Register for “modeling
clay; modeling compounds; aromatic modeling materials and compounds for use by
children; modeling materials and compounds for use by children” in International
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Opposition No. 91252130
- 2 -

Class 16.1 Diane Scott (Opposer) filed a notice of opposition pleading claims under
Trademark Act Section 1(a)(1), 15 U.S.C. 1051(a)(1), that Applicant is not the owner
of the mark, and under Trademark Act Section 2(d), 15 U.S.C. 1052(d), that the mark
is likely to be confused with Opposer’s mark THE SQUEEZE for the same and closely
related goods, the subject of prior common law use and a pending application for
registration.2
Applicant’s answer denied the salient allegations of the notice of opposition.3
I. The Record and Evidentiary Objections
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37
C.F.R. § 2.122(b), the file of the opposed application. Opposer submitted her
declaration and exhibits,4 and notices of reliance with copies of her pending

1 Application Serial No. 88381776 filed April 11, 2019 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and use in
commerce since at least as early as April 11, 2019.
The Trademark Status and Document Retrieval (TSDR) citations refer to the downloadable
.pdf version of the documents available from the electronic file database for the involved
application. The TTABVUE citations refer to the Board’s electronic docket, with the first
number referring to the docket entry and the second, if applicable, the page within the entry.
2 Application Serial No. 88410638 filed May 1, 2019 for “aromatherapy product, namely,
modeling materials and compounds infused with essential oils for use by adults and children”
in International Class 3 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based
upon Applicant’s claim of first use anywhere and use in commerce since at least as early as
March 1, 2019.
3 5 TTABVUE. To the extent that Applicant pleaded affirmative defenses in her answer,
Applicant did not present any evidence or argument with respect to the asserted defenses at
trial, so they are deemed waived. Peterson v. Awshucks SC, LLC, 2020 USPQ2d 11526, *1 n.3
(TTAB 2020).
4 18 TTABVUE. In addition to submitting her declaration and exhibits pursuant to
Trademark Rule 2.123, Opposer submitted multiple notices of reliance listing her declaration
and exhibits as the attachment. 14 TTABVUE (no attachment), 15 TTABVUE (no
declaration, only exhibits), 19 TTABVUE (declaration and exhibits). This evidence is
duplicative.
Opposition No. 91252130
- 3 -

application Serial No. 88410638,5 Internet materials, a record from the Florida
Secretary of State, and USPTO records.6 Applicant submitted her declaration and
exhibits,7 and a notice of reliance upon Internet materials and USPTO records.8
In her brief Applicant moves for the first time to strike Opposer’s declaration as
untimely and not complying with the Board’s requirements for a notice of reliance.9
With respect to the timeliness objection, Opposer’s testimony period opened October
18, 2020 and closed November 16, 2020. Opposer’s declaration submitted November
16, 2020 was executed August 27, 2020.10 Pursuant to Trademark Rule 2.121(a), “No
testimony shall be taken or evidence presented except during the times assigned,
unless by stipulation of the parties approved by the Board, or upon motion granted
by the Board, or by order of the Board.” The Board neither approved a stipulation nor
granted a motion allowing testimony to be taken outside the testimony period.
Accordingly, we agree with Applicant11 that Opposer’s testimony by declaration
executed August 27, 2020 was not taken during the testimony period and is untimely.
The premature scheduling or submission of testimony is an error which can be
corrected on seasonable objection. Int’l Dairy Foods Ass’n v. Interprofession du
Gruyère, & Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d 10892, at *3 n.12

5 16 TTABVUE.
6 17 and 22 TTABVUE.
7 20 TTABVUE.
8 21 TTABVUE.
9 24 TTABVUE 9-12.
10 13 TTABVUE 3.
11 13 TTABVUE 9-11.
Opposition No. 91252130
- 4 -

(TTAB 2020), appeal filed, No.1:20-cv-01174-TSE-TCB (E.D. Va. Oct. 6, 2020); Of
Counsel Inc. v. Strictly of Counsel Chartered, 21USPQ2d 1555, 1556 n.2 (TTAB 1991);
TBMP 707.03(b)(1). A party may waive an objection to evidence by failing to raise the
objection at the appropriate time. Moke Am. LLC v. Moke USA, LLC, 2020 USPQ2d
10400, at *3-9 (TTAB 2020).12 Procedural objections generally are considered
seasonable, or timely raised, if made within the same 20 day period after the filing of
the affidavit or declaration in which the adverse party is allowed to request cross-
examination. Id. at *5. The defending party may raise the objection by electing cross-
examination and making the objection on the deposition record, serving an objection
on the party proffering the declaration or affidavit (and filing a copy with the Board),
or filing a motion to strike, all options which allow the proffering party to cure the
defect with minimal disruption to the trial schedule. Id.13 Here, Applicant waited
until filing her trial brief before asserting her objection that the testimony was
premature and prevented any cure of the deficiency.14 Consequently, Applicant's
objection to the premature testimony as untimely has been waived.

12 Applicant offers no legal (or factual) support for her argument (24 TTABVUE 12) that the
reference in the declaration to use for summary judgment allows her to raise the procedural
objection in her brief, and we reject the argument.
13 “In general, an objection made in this period provides sufficient notice to the party offering
the allegedly deficient testimony time to cure the defect, including time to request a
reopening of testimony for the purpose of doing so, with minimal disruption to the trial
schedule.” Id.
14 We find inapposite those cases cited by Applicant where testimony was filed after, rather
than before the testimony period [Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089,
at *4 (TTAB 2019), appeal by civil action filed, No. 0:19-cv-61614-DPG (S.D. Fla. June 28,
2019)], where the objection was timely [Robinson at 149089 n. 23;]; where a pre-2017 rule
change affidavit or declaration was submitted as testimony without a stipulation [Calypso
Tech. Inc. v. Calypso Capital Mgmt. LP, 100 USPQ2d 1213, 1216 (TTAB 2011), 7-Eleven, Inc.
v. Wechsler, 83 USPQ2d 1715, 1717 n.3 (TTAB 2007), Hilson Research Inc. v. Soc’y for Human
Opposition No. 91252130
- 5 -

Applicant also objects to Opposer’s declaration because it was submitted under a
notice of reliance.15 Testimony by declaration is admissible under Trademark Rule
2.123(a)(1), C.F.R. § 2.123(a)(1), and so does not require a notice of reliance.
Submission of an affidavit or declaration under notice of reliance is not the preferred
method, but harmless. Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d
311355, at *3 (TTAB 2019). More importantly, Opposer’s declaration was submitted
in multiple ways, including as testimony (18 TTABVUE), so striking the duplicative
versions submitted under notice of reliance would have no impact on the record.
Applicant’s motion to strike Opposer’s declaration is denied.16
II. Entitlement to a Statutory Cause of Action17
Opposer’s entitlement to a statutory cause of action is a requirement that must be
proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies
Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, *3 (Fed. Cir. 2020)

Resource Mgmt., 27 USPQ2d 1423, 1427 (TTAB 1993)], and where the Board was asked to
take judicial notice of testimony submitted in connection with a motion for summary
judgment [Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1465 n. 2
(TTAB 1993)].
15 13 TTABVUE 9.
16 Applicant also objected (13 TTABVUE 12-16) to consideration of the exhibits to Opposer’s
declaration “to the extent the Board might independently consider [them] as materials that
may [be] appropriately filed under a notice of reliance,” and we find those objections have
been made moot by our decision on the motion to strike and the introduction of the exhibits
by Opposer’s declaration.
17 The Board’s decisions have previously analyzed the requirements of Trademark Act
Sections 13 and 14, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change
in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections
13 and 14 remain applicable as the tests “share a similar purpose and application.”
Corcamore LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at *7 (Fed. Cir. 2020), see
also Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2
(TTAB 2020).
Opposition No. 91252130
- 6 -

(citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 109
USPQ2d 2061, 2067 n.4 (2014)). A party in the position of plaintiff may oppose
registration of a mark where such opposition is within the zone of interests protected
by the statute, 15 U.S.C. § 1063, and the party has a reasonable belief in damage that
is proximately caused by registration of the mark. Corcamore, LLC v. SFM, LLC,
2020 USPQ2d 11277, *6-7.
Opposer submitted a copy of her pending application to register the mark THE
SQUEEZE for “Aromatherapy product, namely, modeling materials and compounds
infused with essential oils for use by adults and children;” and the USPTO Office
Action citing Applicant’s mark as a potential bar to registration based on likelihood
of confusion.18 This is sufficient to establish Opposer’s statutory entitlement to bring
this opposition proceeding. Fiat Grp. Autos. S.p.A. v. ISM, Inc., 94 USPQ2d 1111,
1112 (TTAB 2010) (“The filing of opposer’s application and the Office's action taken
in regard to that application [a provisional refusal based on the involved application]
provides opposer with a basis for pleading its . . . [entitlement to a statutory cause of
action]”).19

18 18 TTABVUE 73-81, 83-88.
19 Opposer’s statutory entitlement is not limited to the likelihood of confusion claim but
extends to the ownership claim as well. “Where a plaintiff has proven entitlement to a
statutory cause of action as to at least one properly pleaded ground, it has established
standing for any other legally sufficient ground.” Int’l Dairy Foods Ass’n v. Interprofession du
Gruyère & Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d at *9 (TTAB 2020).
Opposition No. 91252130
- 7 -

III. Lack of Ownership
Under Trademark Act Section 1(a)(1), 15 U.S.C. 1051(a)(1), an application based
on use in commerce must be filed by the owner of the mark. An application that is not
filed by the owner is void. Huang v. Tzu Wei Chen Food Co., 849 F.2d 1458, 7 USPQ2d
1335, 1336 (Fed. Cir. 1988); UVeritech, Inc. v. Amax Lighting, Inc., 115 USPQ2d 1242,
1249 (TTAB 2015). Under Trademark Act Section 5, 15 U.S.C. 1055, an applicant
may rely on use of the mark by related companies. See Sock It To Me, Inc. v. Aiping
Fan, 2020 USPQ2d 10611, *2 (TTAB 2020).
For the purposes of establishing trademark use, a licensee may be a related
company. Id. at *3; Moreno v. Pro Boxing Supplies, 124 USPQ2d 1028, 1035 (TTAB
2017). "[R]ights to a mark may be acquired and maintained through the use of that
mark by a controlled licensee even when the only use of the mark has been, and is
being, made by the licensee." Pneutek, Inc. v. Scherr, 211 USPQ 824, 833 (TTAB
1981). While a license generally is written, a valid license may be oral or implied by
the relationship between the parties. See Sock It To Me, Inc. v. Aiping Fan, 2020
USPQ2d at *4; Woodstock’s Enters. Inc. (Cal.) v. Woodstock’s Enters. Inc. (Or.), 43
USPQ2d 1440, 1447 (TTAB 1997). While the licensor must control the quality of goods
produced under the mark by its licensee, “[a] contractual provision giving the licensor
the right to supervise and control the nature and quality of the licensee’s goods and
services is not an essential element if adequate quality control was in fact exercised.”
Sock It To Me, Inc. v. Aiping Fan, 2020 USPQ2d at *3-4, quoting J. Thomas
McCarthy, 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION 18:59 (5th ed).
Opposition No. 91252130
- 8 -

Diane Scott, an individual, filed the opposed application. As admitted in the
answer, Applicant was the President of Aroma Dough, Inc. on the date the application
was filed.20 Opposer contends that Aroma Dough, Inc., and not Applicant, is the
owner of the mark. In support, Opposer submits the April 26, 2020 online record from
the Florida Secretary of State showing Applicant as the president of Aroma Dough,
Inc.; online advertisements for Applicant’s goods which indicate that the SQUEEZE
ME PLEASE! product ships from and is sold by Aroma Dough; an excerpt from
website listed on the product label stating “All trademarks., service marks and trade
names of Aroma Dough, Inc. used in the site are trademarks or registered trademarks
of Aroma Dough, Inc.,” and the product label which displays “Aroma Dough, Inc.” in
proximity to the SQUEEZE ME PLEASE! Mark.21
Applicant denies that she is not the owner of the mark. In support, Applicant
submits her declaration averring that she incorporated Aroma Dough in 2005; that
she is the sole shareholder, officer and director of Aroma Dough, Inc., that she is
“personally and solely responsible for all aspects of the business of Aroma Dough,
Inc., and [has] full control over the nature and quality of the goods marketed by
Aroma Dough, Inc.;” that in 2018, Applicant “personally developed” the SQUEEZE
ME PLEASE! mark for use in aromatic modeling compounds; that through her wholly
owned corporation Aroma Dough, Inc., Applicant owns and operates a website
through which she sells the SQUEEZE ME PLEASE! goods; that Aroma Dough, Inc.

20 1 TTABVUE 7, 5 TTABVUE 5.
21 17 TTABVUE 7-9, 17, 19, 21, 23, 25-26.
Opposition No. 91252130
- 9 -

uses the mark through an implied license from Applicant; and that all use of the mark
(as all activities) by Aroma Dough, Inc. inure to Applicant’s benefit.22 Attached to
Applicant’s declaration was her 2017 Schedule K-1 filed with the Internal Revenue
Service and reflecting Applicant’s 100% ownership of Aroma Dough, Inc.23
Without this background from Applicant, Opposer’s evidence of Aroma Dough’s
use of the SQUEEZE ME PLEASE! mark raised the question of non-ownership.
However, we find Applicant’s evidence that she uses the mark SQUEEZE ME
PLEASE! for use in aromatic modeling compounds through a wholly-owned licensee,
whose use is subject to her control, is undisputed and sufficient to establish her
ownership.24 Because Applicant was using the mark through a licensee whose use
inured to her benefit, Applicant was the owner of the mark at the time the application
was filed. Sock It To Me, Inc. v. Aiping Fan, 2020 USPQ2d at *6.
Opposer’s claim that Applicant was not the owner of the mark at the time the
application was filed is dismissed.
IV. Priority of Use and Likelihood of Confusion
Trademark Act Section 2(d) permits opposition on the basis of ownership of “a
mark or trade name previously used in the United States . . . and not abandoned.” 15

22 20 TTABVUE 5-6.
23 20 TTABVUE 14.
24 Because parties must serve initial disclosures prior to seeking discovery (Trademark Rule
2.120(a)(3)), and discovery closed in this proceeding on July 14, 2020 before the Board granted
Opposer’s August 27, 2020 motion to reopen her time to serve initial disclosures and have
the concurrently-filed initial disclosures accepted as timely, it is clear that Opposer took no
discovery in this case. Opposer did not seek to cross examine Applicant, and Opposer’s reply
brief does not discuss the ownership claim.
Opposition No. 91252130
- 10 -

U.S.C. § 1052(d). If an opposer relying on common law trademark use does not
establish a date of use prior to the applicant’s date of first use, likelihood of confusion
need not be addressed because, without proof of priority, the opposer cannot prevail.
Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1199 (TTAB Opposer
must establish priority by competent evidence of its allegedly prior common law use
through actual use or use analogous to trademark use. See Giersch v. Scripps
Networks, Inc., 90 USPQ2d at 1022. Opposer has not alleged use analogous to
trademark use, so we focus on actual use. See Cent. Garden & Pet Co. v. Doskocil Mfg.
Co., 108 USPQ2d 1134, 1142 (TTAB 2013) (“claims of use analogous to service mark
use must be pleaded”).
Opposer, whose use-based pending application was filed May 1, 2019 alleging
dates of first use of March 1, 2019, contends that her prior trademark use dates from
March 2019.25 In support of her priority claim, Opposer submitted her declaration
averring that from March 2019 to the present, she has sold THE SQUEEZE
aromatherapy products on the internet through websites including amazon.com and
etsy.com; and attached sales order summaries showing sales of her THE SQUEEZE
aromatherapy products.26 The testimony of a single witness may be adequate to

25 23 TTABVUE 7, 13, 18, 20. This is a date later than the first use date listed in the
application. Use since “March 2019” is equivalent to use since March 31, 2019. See Bass Pro
Trademarks, LLC v. Sportsman's Warehouse, Inc., 89 USPQ2d 1844, 1856 (TTAB 2008) (“we
conclude that respondent's date of first use can be no earlier than March 31, 1995, the last
day of the specified time period identified in Mr. Utgaard's testimony”); Osage Oil & Transp.,
Inc. v. Standard Oil Co., 226 USPQ 905, 911 n.22 (TTAB 1985) (evidence established first
use in 1968-1969, therefore December 31, 1969 is date of first use). Cf. TMEP 903.06 (“When
a month and year are given without a specified day, the date presumed for purposes of
examination is the last day of the month.”).
26 18 TTABVUE 5, 8-44.
Opposition No. 91252130
- 11 -

establish priority. See B. R. Baker Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ 232,
236 (CCPA 1945) (“It is not contended by either party here that oral proof alone, even
by one witness, if sufficiently probative, will not suffice in proving priority of
ownership …. However, such testimony is obviously strengthened by corroborative
documentary evidence, and it should not be characterized by contradictions,
inconsistencies, and indefiniteness but should carry with it conviction of its accuracy
and applicability.”); Kemi Organics, LLC v. Gupta, 126 USPQ2d 1601, 1608 (TTAB
2018) (“The critical portions of Mr. McClenney's affidavit for our purposes—his
testimony that Petitioner and its predecessors ‘have sold hair and skin care products
under the KEMI OYL trademark for more than thirty years,’ and his testimony
regarding annual sales figures for KEMI OYL products from 2010 to 2017—are clear,
and are neither contradicted by Respondent nor indefinite and internally
inconsistent.’’).
Here Opposer’s testimony is corroborated by the exhibits to her declaration, which
are records of her sales through Amazon, with the earliest occurring March 15,
2019.27 We find Opposer’s testimony is clear, uncontradicted, and corroborated by her
sales records. We find the record as a whole demonstrates Opposer’s priority date of
March 15, 2019.
Applicant, whose use-based pending application was filed April 11, 2019 and
alleges dates of first use of April 11, 2019, contends that her priority dates from

27 18 TTABVUE 30-31. While Applicant, as discussed, sought to exclude Opposer’s
declaration, Applicant did not argue in the alternative that, if admitted, the evidence was
insufficient to demonstrate Opposer’s priority date.
Opposition No. 91252130
- 12 -

October 1, 2018.28 In support of her claim of priority, Applicant submitted her
declaration averring that since 1992 she has been in the business of selling scented
modelling compounds, on September 30, 2018, she finalized the label design for her
first batch of SQUEEZE ME PLEASE! Lavender Therapy Dough, printed labels, and
attached them to containers of the SQUEEZE ME PLEASE! Lavender Therapy
Dough; that on October 1, 2018, a customer located in Haddonfield, New Jersey
purchased from Applicant’s website a set of modelling compounds which included
SQUEEZE ME PLEASE! Lavender Therapy Dough; and on October 3, 2018,
Applicant fulfilled the order and shipped the first unit of SQUEEZE ME PLEASE!
Lavender Therapy Dough from her location in Melbourne, Florida to the buyer’s
address in Haddonfield, New Jersey.29 Applicant also avers that on October 29, 2018
she made another website sale of SQUEEZE ME PLEASE! Lavender Therapy Dough
to a customer in Georgia which was fulfilled on October 30, 2018.30 As to both sales,
Applicant averred that she reviewed her USPS shipping history records to confirm
the dates of shipment, and her declaration was accompanied by redacted PayPal
receipts confirming the accuracy of the dates of the October 1 and 29, 2018 sales.31

28 24 TTABVUE 16-17.
29 20 TTABVUE 4-8.
30 20 TTABVUE 7.
31 20 TTABVUE 6-7. We exclude as hearsay the email correspondence from Applicant’s
customers, offered by Applicant for the truth of the assertions in the email regarding
purchases of SQUEEZE ME PLEASE ! goods. Gen. Mills Inc. v. Fage Dairy Processing Indus.
SA, 100 USPQ2d 1584, 1592 (TTAB 2011) (“We do not consider these customer emails to be
business records as defined by Fed. R. Evid. 803(6), but we are not considering them for the
truth of the matter asserted therein, inasmuch as the statements therein constitute
hearsay”), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014).
Opposition No. 91252130
- 13 -

Applicant averred that subsequent to the first sale on October 1, 2018, she has
regularly sold units of SQUEEZE ME PLEASE! Lavender Therapy Dough via her
website.32
“Where an applicant seeks to prove a date earlier than the date alleged in its
application, a heavier burden has been imposed on the applicant than the common-
law burden of preponderance of the evidence.” Hydro-Dynamics, Inc. v. George
Putnam & Co., Inc., 1 USPQ2d at 1773. Proof of an earlier priority date requires clear
and convincing evidence. Id.; also Martahus v. Video Duplication Servs. Inc., 3 F.3d
417, 27 USPQ2d 1846, 1852 n.7 (Fed. Cir. 1993). “Clear and convincing” proof refers
to evidence of use which is not characterized by contradictions, vagueness or
inconsistencies. McQuay-Norris Mfg. Co. v. H-P Tool Mfg. Corp., 141 USPQ 405, 407
(TTAB 1964) (“when regarded in toto, [Applicant’s record in this case] is a clear,
convincing and circumstantial showing of earlier trademark use than that originally
alleged in the applications”).
Based on the level of persuasive detail and accompanying documentation, we find
Applicant’s unambiguous and sworn statement that she applied her mark to the
goods and sold them for the first time on October 1, 2018 is sufficient to demonstrate
a priority date earlier than the April 11, 2019 first use date in her opposed
application. See B.R. Baker Co. v. Lebow Bros., 66 USPQ at 236 (“oral proof alone,
even by one witness, if sufficiently probative, will [] suffice in proving priority of
ownership and use”); Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d 1146, 1151

32 20 TTABVUE 8.
Opposition No. 91252130
- 14 -

(TTAB 2016) (“Oral testimony, if sufficiently probative, is normally satisfactory to
establish priority of use in a trademark proceeding”) (quoting Powermatics, Inc. v.
Globe Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965)). With
respect to the persuasive detail, we note the uncontroverted facts that Applicant has
been in the business of producing the goods for years, that she designs and applies
her own labels, and that she has established online sales outlets and customers for
her goods, all facts which lend credence to her sworn statement regarding her first
use of the SQUEEZE ME PLEASE! mark on the goods listed in the application. While
the documentary evidence would not suffice on its own to demonstrate priority, we
find it corroborates her testimony. More specifically, we rely on the document with
SQUEEZE ME PLEASE! labels and a screen capture showing its creation date of
September 30, 2018,33 and the PayPal transaction records showing purchases of
unnamed products on the days matching her testimony (October 1 and 29, 2018).34
In her reply brief, Opposer contends that “none of the ‘evidence’ Applicant relies
upon demonstrates any use of the SQUEEZE ME PLEASE! mark in connection with
any of the purported sales that occurred.”35 If the documents were the entirety of
Applicant’s evidence, we agree that it would fall short. However, in this case, we find
the documents merely corroborate the linchpin of the evidence, which is Applicant’s
testimony. Opposer did not seek to cross-examine Applicant, and the testimony is

33 20 TTABVUE 16.
34 20 TTABVUE 18 and 22.
35 25 TTABVUE 6.
Opposition No. 91252130
- 15 -

uncontroverted and, as explained, persuasive. In considering the testimony and
evidence of priority, “we look at the evidence as a whole, as if each piece of evidence
were part of a puzzle which when fitted together, establishes prior use.” See W. Fla.
Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994).
We find Applicant’s priority dates from October 1, 2018, a date earlier than Opposer’s
priority date of March 15, 2019.
Priority is an essential element of any claim under Trademark Act Section 2(d)
that is based on common law use. Exec. Coach Builders, 123 USPQ2d at 1199.
Because Opposer did not establish a date of priority before Applicant’s date, Opposer’s
likelihood of confusion claim is dismissed.
Decision: The opposition is dismissed.