Dennis Oley, Stormprepare, LLCv.New Imagitas, Inc.

Trademark Trial and Appeal Board

May 4, 2021

92067595 (T.T.A.B. May. 4, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: May 4, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

StormPrepare, LLC
v.
New Imagitas, Inc.
_____

Cancellation No. 92067595
_____

Maja Szumarska, Adam Sgro, and Brian Brokate of Gibney, Anthony & Flaherty,
LLP, for StormPrepare, LLC.

Amanda G. Hyland and Kelly Casey Mullally of Taylor English Duma LLP,
for New Imagitas, Inc.
_____

Before Zervas, Kuczma, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
New Imagitas, Inc. (“Respondent”) owns a Principal Register registration for the
mark NOCABLE, in standard characters, for “providing information in the fields of
technology via an on-line website; providing a web site featuring technology that
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enables users to gain information on cancelling cable television and the alternatives
to cable television,” in International Class 42.1
In its Amended Petition to Cancel, StormPrepare, LLC (“Petitioner”)2 seeks
cancellation of Respondent’s registration under Trademark Act Section 2(d), 15
U.S.C. § 1052(d), on the basis of likelihood of confusion with its alleged prior common
law use of the marks NoCable.TV and NoCableTV.com in connection with
“educat[ing] the public regarding available TV reception without cable utilities by
way of simple instructions to set-up a TV antenna to eliminate cable TV utility costs”3
since October 8, 2008.4
In its Answer, Respondent denied the salient allegations of the Amended Petition
for Cancellation, and asserted as affirmative defenses abandonment and lack of a

1 Registration No. 5270723, issued August 22, 2017, from an application filed January 26,
2017, claiming December 31, 2015 as the date of first use anywhere and the date of first use
in commerce.
2 Although the petitioner was identified as two entities (i.e., “Dennis Oley, StormPrepare,
LLC”) on the ESTTA cover sheet accompanying the original petition to cancel, the fee for only
one plaintiff was paid. Inasmuch as StormPrepare, LLC was named in the body of the original
petition to cancel as the owner of the pleaded websites, 1 TTABVUE 2, was identified as the
petitioner in the discovery conference, 6 TTABVUE 1, and the parties treated StormPrepare,
LLC as the petitioner with Dennis Oley its Managing Member, we consider only
StormPrepare, LLC to be the petitioner. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL
OF PROCEDURE (“TBMP”) § 303.06 (2020).
Citations to the record and briefs reference TTABVUE, the Board’s online docket system.
See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, *2 n.1 (TTAB 2020).
Citations to the registration file refer to the .pdf version of the TSDR system record.

3 In its main brief, Petitioner refers to these services as “educating the public on how to
eliminate cable utility costs through the installation of an antenna that provides reception to
public access television” – effectively the same. Brief, p. 3 (36 TTABVUE 8).
4 8 TTABVUE 2. Petitioner also attempted to plead fraud, but it was previously determined
that those allegations failed to state a claim. See 14 TTABVUE 7. Fraud was neither
repleaded nor pursued at trial.
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continuous and commercial use of the pleaded marks. Respondent alleged other
“defenses” also directed to Petitioner’s alleged use and establishment of common law
rights in the pleaded marks.5 We consider all of the facts relevant to these defenses
in the context of our discussion of Respondent’s use of its designations and the issue
of priority.
I. Evidentiary Issues
Before proceeding to the merits of the claim, we address Petitioner’s missing
exhibits and Respondent’s objections to certain evidence.
A. Petitioner’s Exhibits 25, 26, and 27
As indicated in Petitioner’s main brief,6 Petitioner did not submit Exhibit 26 (the
ICANN domain name registration data lookup for nocable.org)7 or Exhibit 27 (the
ICANN domain name registration data lookup for nocable.tv)8 which were described
in the Notice of Reliance. Because these Internet materials were not attached to the
Notice of Reliance, they are not in evidence.
Additionally, Exhibit 25 (described as an NHL.tv Terms of Service document)9 was
not attached to the Notice of Reliance and is not in evidence. It is the responsibility
of the party making submissions to the Board to ensure that the submissions have

5 15 TTABVUE 3-4.
6 36 TTABVUE 7 n.2.
7 17 TTABVUE 13.
8 Id.
9 17 TTABVUE 12.
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been entered into the trial record. See Luxco, Inc. v. Consejo Regulador del Tequila,
A.C., 121 USPQ2d 1477, 1506 n.195 (TTAB 2017); TBMP § 110.01.
B. Petitioner’s Exhibit 20
Respondent objects to Petitioner’s Exhibit 20 (screenshots from the website
nocable.tv) on the bases that (1) Petitioner did not provide the date on which the web
pages were accessed, (2) Petitioner altered the pages to add captions thereto, and (3)
the web pages constitute hearsay.10 Generally, Internet materials may be admitted
into evidence under a notice of reliance if the date of access and URL are provided.
Trademark Rules 2.122(e) and (g), 37 C.F.R. §§ 2.122(e) and (g).
Petitioner’s failure to include the date of access of these webpages is a procedural
defect which could have been cured had Respondent promptly objected. See City Nat’l
Bank v. OPGI Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1672 (TTAB
2013) (“Any shortcomings in respondent’s original submission . . . under notice of
reliance, such as its failure to identify the URL and when the document was actually
accessed (either printed out or downloaded), are procedural deficiencies that were not
timely raised by petitioner and thus have been waived.”); TBMP § 707.02(b). The first
objection is therefore overruled.11

10 Respondent’s Brief, pp. 4-7 (38 TTABVUE 10-13).
11 Moreover, because Respondent introduced printouts from the website nocable.tv with its
own Notice of Reliance under Trademark Rule 2.122(e)(2), and those printouts, which are in
part almost substantially identical to the screenshots introduced by Petitioner, include the
access date and source, we may rely upon those printouts. See 18 TTABVUE 181-188 (Exhibit
F), 18 TTABVUE 189-194 (Exhibit G). Respondent’s objection is therefore also otherwise
practically moot.
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The alterations to which Respondent objects are simply Petitioner’s provision of
the URLs (i.e., information required by Trademark Rule 2.122(e)) from which the
screenshots were taken and presumably the respective page titles. The URL source
information does not have to be printed on the face of the web page by software
capturing the image (i.e., with “native headers or footers,” as suggested by
Respondent),12 it is sufficient that the URL has been “provided” in some way,
somewhere in the notice of reliance. STX Fin., LLC v. Terrazas, 2020 USPQ2d 10989,
*3 (TTAB 2020). The captions on the webpages added by Petitioner provide the source
information for the screenshots – all from the hostname “nocable.tv.” This is
supported by the Notice of Reliance introducing the exhibit, which states “Discovery
Exhibit (20) - NoCable.TV homepage and antenna installation instruction. Dated
2010 thru 2019. www.NoCable.TV[.] Exhibit (20) is a PDF print of the Petitioner, [sic]
www.NoCable.TV webpages instructing the reader about TV antenna installation,
and, webpage links offering Amazon affiliate TV antenna and accessory products.”13
Further, Respondent has not demonstrated that the annotations contain false
statements, and Respondent’s reliance on Optimal Chem. Inc. v. Srills LLC, 2019
USPQ2d 338409, *14 (TTAB 2019) (Board invoked inherent authority to sanction
after finding, inter alia, annotations at the top of screenshots captured in 2015 which
stated that the product images therein were from 2005 to be false statements), is
misplaced. Neither Petitioner’s annotations nor the explanatory language

12 38 TTABVUE 10.
13 17 TTABVUE 11.
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introducing the screenshots in the Notice of Reliance affirmatively claim a date on
which the screenshots were captured or the underlying webpage was first visible on
the Internet.14 The second objection is therefore overruled.
Respondent also objects on the basis of hearsay to the extent that “Petitioner offers
the [screenshots] as evidencing advertisement and promotion of his services under
his mark.”15 We overrule this objection as moot because we do not consider the
webpages for the truth of any assertion contained therein. See, e.g., Int’l Dairy Foods
Ass’n v. Interprofession du Gruyère, 2020 USPQ2d 10892, *21 n.161 (TTAB 2020)
(“We do not consider the substance of the media and Internet references to ‘gruyere’
for the truth of any assertion therein but rather as evidence of public exposure to use
of the term generically. Applicants’ hearsay objection is therefore moot.”). See TBMP
Section 704.08(b).
C. Petitioner’s Exhibits 13-15
Respondent objects to Petitioner’s Exhibits 13-15 (email communications bearing
an August 30, 2017 date between Petitioner and Respondent’s predecessor-in-
interest) on the bases that (1) they are inadmissible hearsay to the extent that
Petitioner relies on them to establish the truth of the matter asserted, i.e., that
Petitioner had prior use of the mark, and (2) relevancy because they were written
after the pertinent priority dates in this proceeding. Although Respondent has

14 The “Dated 2010 thru 2019” wording in the Notice of Reliance is not specific in its meaning
or purpose. The face of the nocable.tv home page shows a copyright notice dated 2008-2013,
apparently contradicting Petitioner’s “[d]ated 2010-2019” wording.
15 38 TTABVUE 13.
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objected to this evidence by Petitioner, Respondent later introduced these same
emails via its Notice of Reliance.16
The hearsay objection is sustained to the extent that the emails can only be
considered for what they show on their face and not for the truth of the statements
shown therein, as there is no declaration testimony corroborating the truth or
explaining the significance of these emails. We may consider the emails to show the
date17 and content of messages between Christopher Cagle (owner of Cagintranet,
the original respondent)18 and Dennis Oley (managing director of Petitioner), and we
may put these in context with the other emails between these principals to which
Respondent did not object, and infer from them that on August 30, 2017, Messrs.
Cagle and Oley discussed via email the websites nocable.tv, nocabletv.com, and
nocable.org.
The relevancy objection, however, is overruled. “[W]e simply accord the evidence
whatever probative value it deserves, if any at all. . . . Ultimately, the Board is capable
of weighing the relevance and strength or weakness of the objected-to . . . evidence in

16 18 TTABVUE 2 (introducing Exhibit B, inter alia, Petitioner’s response to document
requests) and 96-101 (the emails).
17 The computer-generated date in the information header of these emails is not hearsay. 4
MUELLER & KIRKPATRICK, FEDERAL EVIDENCE § 8:13 (4th ed., May 2020 update) (“[N]othing
‘said’ by a machine . . . is hearsay.”). See also, e.g., United States v. Washington, 498 F.3d 225,
231 (4th Cir. 2007) (finding data generated by lab machines not hearsay); United States v.
Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (concluding that computer-generated
header information accompanying images retrieved from the Internet was not a hearsay
statement because there was neither a “statement” nor a “declarant” involved within the
meaning of Rule 801).
18 January 26, 2017 Application at TSDR 2-3, identifying Christopher Cagle as the “owner”
of Cagintranet.
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this specific case, including any inherent limitations, and this precludes the need to
strike the . . . evidence.” Hunt Control Sys. Inc. v. Koninkijke Philips Elecs. N.V., 98
USPQ2d 1558, 1564 (TTAB 2011).
D. Petitioner’s Discovery Responses
Lastly, Respondent objects to Petitioner’s reliance on its own discovery responses
to establish priority, particularly Exhibit A (Petitioner’s Response to First Set of
Interrogatories) and Exhibit B (Petitioner’s Response to First Set of Requests for
Production of Documents and Things) attached to Respondent’s Notice of Reliance19
and introduced under Trademark Rule 2.120(k)(3), 37 C.F.R. § 2.120(k)(3), on the
basis that they are “unsigned, self-serving statements by the Petitioner and cannot
substitute for a properly introduced affidavit or declaration with their important
safeguards to ensure veracity.”20
When an interrogatory answer has been made of record by one party in accordance
with Trademark Rule 2.120(k), it may be referred to by any party for any purpose
permitted by the Federal Rules of Evidence. See TBMP § 704.10. However,
Respondent points out that the interrogatory answers were not signed, and the
responses as submitted do not include a verification page. Federal R. Civ. P. 33(b)(3)
requires that the responses must be answered under oath, and Rule 33(b)(5) requires
that the person who makes the answers must sign them. See TBMP § 405.04(b) and
(c). Petitioner does not refute in its Reply Brief that its interrogatory responses were

19 18 TTABVUE 19-38 (Exhibit A), 46-118 (Exhibit B).
20 38 TTABVUE 14.
Cancellation No. 92067595
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neither signed nor made under oath. “It has been stated that unsigned and unverified
answers to interrogatories do not qualify as answers under Fed. R. Civ. P. 33. Courts
have also found that unverified answers to interrogatories are not competent
evidence or are not a valid basis for factual findings in connection with a motion for
summary judgment.” Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d 1146, 1151
n.28 (TTAB 2016) (citations omitted).
Further, Petitioner’s interrogatory responses themselves are not effective on their
own for the purpose of establishing priority. See Id. at 1151-52 (noting that while
interrogatory responses may nonetheless be entitled to some limited weight, they are
not oral or declaration testimony, and are not conclusive on the question of priority
(citing, inter alia, Tzu Wei Chen Food Co., v. Chia-chi Enters., Inc., 73 F.3d 379, 38
USPQ2d 1932, 1935-37 (Fed. Cir. 1995) (table decision) (finding evidence insufficient
to establish priority, noting lack of direct evidence and that interrogatory responses
are not treated as conclusive admissions but evidential admissions by the courts,
which entitles them to less than conclusive weight to support an inference of prior
use))). See also, ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1043-44 (TTAB
2012) (finding uncorroborated interrogatory response insufficient to rebut
presumption of abandonment; “A party’s response to an interrogatory is not without
evidentiary value, but generally is viewed as ‘self-serving.”’). Accordingly, Petitioner’s
interrogatory responses cannot be effective on their own for the purpose of
establishing priority, and Respondent’s objection to their use for this purpose is
sustained.
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Turning to Respondent’s objection to Petitioner’s use of Respondent’s Exhibit B
(Petitioner’s response to a request for documents), we find that the document
responses, as opposed to the attached documents themselves, are not effective on
their own for establishing priority. The self-serving statements cannot be treated as
conclusive admissions and are otherwise uncorroborated by testimony. Accordingly,
Petitioner’s written responses to the document requests cannot be effective on their
own for the purpose of establishing priority, and Respondent’s objection to their use
for this purpose is sustained. Notwithstanding this ruling, to the extent that
Respondent did not object to the identical documents attached to Petitioner’s Notice
of Reliance,21 and to the extent we have discussed above those documents to which
Respondent did object (i.e., Exhibits 13-15 and 20), Respondent’s objection is
overruled.
II. The Record
The record includes the pleadings and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file for the challenged registration.
Petitioner’s evidence of record includes Petitioner’s Notice of Reliance (17
TTABVUE) on the following exhibits:
 Exhibits 1-10 and 22, pages from the website nocable.org
 Exhibits 11-15, e-mail exchanges between Petitioner and Registrant
 Exhibit 16, an email from Petitioner to the USPTO

21 Documents attached as Exhibit B to Respondent’s Notice of Reliance (18 TTABVUE 52-
118), identical to Exhibits 1-22 attached to Petitioner’s Notice of Reliance (17 TTABVUE 15-
81).
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 Exhibit 17, Google search results of the term “nocable”
 Exhibit 18, purported images of Petitioner’s and Registrant’s designations
 Exhibit 19, the registration certificate for the subject registration
 Exhibit 20, screenshots from the website nocable.tv
 Exhibit 21, an Amazon Associates Program Operating Agreement22
 Exhibits 23-24, terms of service for ExpressVPN and MLB.TV.
Respondent’s evidence of record includes Respondent’s Notice of Reliance (18
TTABVUE) on the following exhibits:
 Exhibit A, Respondent’s interrogatories and Petitioner’s responses thereto
 Exhibit B, Respondent’s document requests and Petitioner’s responses
thereto

 Exhibit C, Respondent’s requests for admission and Petitioner’s responses
thereto

 Exhibit D, printouts of the website nocable.org
 Exhibit E, printouts of amazon.com websites linked to the website
nocable.org

 Exhibits F and G, printouts of the website nocable.tv

 Exhibit H, printouts of amazon.com websites linked to the website
nocable.tv.

Neither party introduced testimony in any form.

22 Although Exhibit 21 was not described in the Notice of Reliance, Respondent did not object
there to, so we consider it for whatever probative value it may have.
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III. Entitlement to a Statutory Cause of Action23
Petitioner must demonstrate that it is entitled to bring a statutory cause of action
against Respondent. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC,
965 F.3d 1370, 2020 USPQ2d 10837, *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)).
Specifically, Petitioner must prove that this cancellation action is within its zone of
interests protected by the statute, Section 14 of the Trademark Act, 15 U.S.C. § 1064,
and that it has a reasonable belief in damage that is proximately caused by the
registration of a mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d
11277, *6-7 (Fed. Cir. 2020). “Proof of [entitlement to a statutory cause of action] in a
Board [cancellation] is a low threshold, intended only to ensure that the plaintiff has
a real interest in the matter, and is not a mere intermeddler.” Syngenta Crop Prot.
Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117 n.8 (TTAB 2009) (citing Ritchie v.
Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)).
We look to the record evidence, as opposed to mere argument, to determine
whether Petitioner is entitled to a statutory cause of action as alleged in the Amended
Petition to Cancel. “[T]he facts and arguments presented in [a] brief must be based
on the evidence offered at trial. A brief may not be used as a vehicle for the
introduction of evidence.” TBMP § 801.01. “Factual statements made in a party’s brief

23 Board decisions have previously analyzed the requirements of Section 14 of the Trademark
Act, 15 U.S.C. § 1064, under the rubric of “standing.” We now refer to standing as entitlement
to a statutory cause of action. Univ. of Ky. v. 40-0, LLC, 2021 USPQ2d 253, *8 (TTAB 2021).
Despite the change in nomenclature, our prior decisions and those of the Federal Circuit
interpreting Section 14 remain equally applicable. Id.
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on the case can be given no consideration unless they are supported by evidence
properly introduced at trial.” Id. at § 704.06(b); Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (affirming Board’s exclusion of
assertions of fact made in a brief and agreeing with the Board that they are not
evidence introduced at trial). Most of Petitioner’s evidence and argument is not
helpful to Petitioner in establishing its entitlement; however, because Respondent
submitted Petitioner’s responses to Respondent’s First Set of Requests for
Admission,24 Petitioner may rely on that evidence.25
By Admission Nos. 20 and 34 to Respondent’s requests for admissions, Petitioner
admits “that the websites www.NoCable.TV and www.NoCable.TV.com only provide
links to other websites for the purchase of goods offered for sale by Petitioner,”26 and
“Petitioner has obtained revenue from the websites www.NoCable.TV and
www.NoCable.TV.com based on advertising of antenna equipment via links from the
websites www.NoCable.TV and www.NoCable.TV.com.” Although there is no
testimony to support these admissions, under Fed. R. Civ. P. 36(b) they conclusively
establish the truth of the assertions.

24 18 TTABVUE 134-147.
25 As noted above with the discussion of interrogatory answers, when an admission has been
made of record by one party in accordance with Trademark Rule 2.120(k), it may be referred
to by any party for any purpose permitted by the Federal Rules of Evidence. Trademark Rule
2.120(k)(7), 37 C.F.R. § 2.120(k)(7); TBMP § 704.10.
26 18 TTABVUE 141.
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Petitioner’s Exhibits 11-15 (email communications between Petitioner and
Respondent’s predecessor-in-interest)27 show on their face that the parties discussed
the website nocable.tv, with Petitioner claiming that it owns the website.
Petitioner’s Exhibit 20 (screenshots from the website nocable.tv)28 and
Respondent’s Exhibits F and G (printouts of the website nocable.tv)29 show on their
face information relating to antenna technology enabling users to potentially obtain
television signals without using cable television – information facially related to the
services in Respondent’s registration.
We find that Petitioner’s admissions that it has obtained revenue from the website
nocable.tv, combined with the emails between the parties and the information on the
face of the nocable.tv website, establish the low threshold that Petitioner has a
commercial interest in seeking to cancel Respondent’s registration of the mark
NOCABLE.
IV. Priority
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), provides a ground for
cancellation of a registration that has been on the Principal Register for fewer than
five years on the basis of a petitioner’s “ownership of ‘a mark or trade name previously
used in the United States . . . and not abandoned,’” Exec. Coach Builders, Inc. v. SPV
Coach Co., 123 USPQ2d 1175, 1180 (TTAB 2017) (quoting 15 U.S.C. § 1052(d)), and

27 17 TTABVUE 56-64.
28 17 TTABVUE 74-75.
29 18 TTABVUE 181-194.
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a likelihood of confusion. To establish priority, Petitioner must prove by a
preponderance of the evidence that it has “proprietary rights in its pleaded common-
law mark that precede [Respondent’s] actual or constructive use of its involved mark.”
Exec. Coach Builders, 123 USPQ2d at 1180; see also Otto Roth & Co. v. Universal
Foods Corp., 640 F.2d 1317 , 209 USPQ 40, 43 (CCPA 1981) (plaintiff must establish
proprietary rights, either inherent in or by acquisition of secondary meaning in,
pleaded common-law mark).
For priority purposes, Respondent may rely on the January 26, 2017 filing date of
the underlying application that matured into its involved registration. Kemi Organics
v. Gupta, 126 USPQ2d 1601, 1604 (TTAB 2018). If Petitioner cannot prove that it
used the designation NoCable.TV as a trademark before the January 26, 2017 filing
date of Respondent’s underlying application, Petitioner cannot establish priority.30
See Exec. Coach Builders, 123 USPQ2d at 1180. Cf. Herbko Int’l, Inc. v. Kappa Books,
Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002); Otto Roth 209 USPQ at
43.
Petitioner states in its brief that it registered the domain name NoCable.TV on
October 8, 2008.31 There is no testimonial or documentary evidence of record to
support this statement other than Petitioner’s uncorroborated interrogatory answer
that it purchased the domain from the “domain name retailer” GoDaddy.com and

30 In its brief, Petitioner refers only to the pleaded NoCable.TV designation and explains that
the URL “NoCableTV.com” redirects to NoCable.TV. 36 TTABVUE 6 n.1. Accordingly, we
limit our discussion to the pleaded designation NoCable.TV.
31 36 TTABVUE 9.
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obtained a receipt dated October 8, 2008.32 Similarly, all other interrogatory answers
relating to Petitioner’s alleged ownership of the domain nocable.tv and operation of
the website at nocable.tv since October 2008 are uncorroborated by testimonial or
documentary evidence.33 As discussed above, the interrogatory answers are not
signed or answered under oath, and such responses do not qualify as answers and are
not conclusive evidence in connection with Petitioner’s alleged priority. Daniel J.
Quirk, Inc. v. Village Car Co., 120 USPQ2d at 1151-52 (noting that while
interrogatory responses may nonetheless be entitled to some limited weight, they are
not oral or declaration testimony, and are not conclusive on the question of priority);
Tzu Wei Chen Food Co., v. Chia-chi Enters., Inc., 38 USPQ2d at 1935-37 (finding
evidence insufficient to establish priority, noting lack of direct evidence and that
interrogatory responses are not treated as conclusive admissions but evidential
admissions by the courts, which entitles them to less than conclusive weight to
support an inference of prior use). See also, ShutEmDown Sports, Inc. v. Lacy, 102
USPQ2d at 1043 (citing Gen. Elec. Co. v. Graham Magnetics Inc., 197 USPQ 690, 692
n.5 (TTAB 1977)) (“A party’s response to an interrogatory is not without evidentiary
value, but generally is viewed as ‘self-serving.”’).

32 Interrogatory No. 6, 18 TTABVUE 25-26.
33 See, e.g., Interrogatory No. 8, describing Petitioner’s activities with the domain and
website, 18 TTABVUE 27; and Interrogatory No. 17, describing Petitioner’s alleged
development of common-law rights, 18 TTABVUE 35-36.
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It’s its main Brief,34 Petitioner relies on its Exhibits 11-15 (emails between
Messrs. Cagle and Oley)35 to prove that it registered the domain name nocable.tv in
October 2008; on its Exhibit 20 (screenshots from nocable.tv)36 to establish use of the
mark for informational services at that time; and apparently on its unsigned and
unverified response to interrogatory No. 7 within Respondent’s Exhibit A,37
production response No. 3 within Exhibit B,38 and admission response Nos. 34 and 35
within Exhibit C39 to establish that it has obtained revenue based on the website
nocable.tv. Petitioner failed to introduce any testimony evidence supporting these
assertions, and we may not consider either the emails or the screenshots for the truth
of the matters presented therein. Factual assertions set forth in the emails and
webpages are hearsay without any testimonial support. On their face, the emails and
webpages do not demonstrate that Petitioner has rights in any mark. While the
admissions that Petitioner obtained revenue from the website nocable.tv is
conclusively established, Fed. R. Civ. P. 36(b), that – and only that – is all that has
been established; however, the establishment of that sole fact is not enough to
demonstrate priority in a mark.

34 36 TTABVUE 12-13.
35 17 TTABVUE 56-64.
36 17 TTABVUE 74-75.
37 18 TTABVUE 26-27.
38 18 TTABVUE 48.
39 18 TTABVUE 145-146.
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In its Reply Brief,40 Petitioner appears to rely on the domain name registration of
nocable.tv, but the domain name registration is not of record. Even if it were, the
mere registration of a domain name does not constitute use of a trademark in
commerce. Stawski v. Lawson, 129 USPQ2d 1036, 1045 (TTAB 2018) (citing
Brookfield Commc’ns, Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 50 USPQ2d 1545,
1555 (9th Cir. 1999) (“Registration [of a domain name] with [domain name registrar],
however, does not in itself constitute ‘use’ for purposes of acquiring trademark
priority.”)).
In sum, there is no factual evidence of record demonstrating that Petitioner owns
the mark nocable.tv or used such a designation in commerce prior to the January 26,
2017 filing date of the underlying application that matured into Respondent’s
involved registration. Considering all of the evidence as a whole, when hearsay is
appropriately excluded we find that Petitioner has failed to prove its priority by a
preponderance of the evidence. Having failed to establish priority, Petitioner cannot
prevail on its likelihood of confusion claim. Moke Am. LLC v. Moke USA, LLC, 2020
USPQ2d 10400, *9-10 (TTAB 2020) (“Prior use is a necessary element of any claim of
likelihood of confusion under Section 2(d) of the Trademark Act. We need not reach
the merits of the likelihood of confusion claim because without proof of priority,
Opposer cannot prevail.”).
V. Decision
The petition to cancel is denied.

40 39 TTABVUE 7.