Eugene R. Burkardv.Ga. Peach Buns, Inc.

Trademark Trial and Appeal Board

Nov 1, 2006

No. 91161120 (T.T.A.B. Nov. 1, 2006)

Mailed:
November 1, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Eugene R. Burkard
v.
Ga. Peach Buns, Inc.
________

Opposition No. 91161120
to Serial No. 76550318
_______

Susan B. Meyer of Gordon & Rees LLP for Eugene R. Burkard.

Crystal R. Ferrier of Ferrier & Ferrier, P.C. for Ga. Peach
Buns, Inc.
_______

Before Quinn, Bucher and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Ga. Peach Buns, Inc. seeks registration on the Principal
Register of the mark PEACH BUNS (in standard character format)
for goods identified in the application as “clothing, namely,
swimwear, wraps, tops, coverups, skirts, shorts [and] dresses”
in International Class 25.1
Eugene R. Burkard has opposed registration, asserting
that applicant’s mark, when used in connection with
applicant’s goods, so resembles opposer’s previously used
mark, BUNS, also registered by opposer in connection with

1 Application Serial No. 76550318 was filed on September 22, 2003
based upon applicant’s allegation of first use anywhere and use in
commerce at least as early as September 30, 1997.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Opposition No. 91161120
- 2 -
“underwear pants for men and women”2 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). Applicant has denied
the salient allegations in the notice of opposition.
By operation of the rules, the record includes the
pleadings and the file of the opposed application. In support
of his case, opposer made of record via a Notice of Reliance
filed on April 13, 2005 the status and title copy of his
claimed registration, and then with a Supplemental Notice of
Reliance filed on June 24, 2005, he provided selected portions
of applicant’s responses to opposer’s written discovery
requests. As its case in chief, applicant submitted the
testimony of applicant’s founder and President, Miranda Music
Smith, taken on August 31, 2005 along with the exhibits
thereto. The parties have fully briefed the case.
Applicant is a small company having its primary place of
business in Brunswick, Georgia. Ms. Smith, founder and
President of Ga. Peach Buns, Inc., has long been involved in
swimwear and fashion apparel. In September 1997 she chose
PEACH BUNS as the mark for her swimwear and other apparel.

2 Registration No. 1023313 issued to Brawn of California on
October 21, 1975 claiming first use anywhere and first use in
commerce at least as early as December 13, 1974. The records of the
Assignment Branch of the United States Patent and Trademark Office
(USPTO) show an assignment to Mr. Burkard as of August 7, 1986, at
Reel 0557 / Frame 0529.
Opposition No. 91161120
- 3 -
Opposer alleges in his Notice of Opposition that his mark
“ … is recognized by a significant portion of the relevant
public as identifying the products of opposer ….” However, he
has proffered no testimony or other evidence about his usage.
Moreover, applicant provided no information or admissions in
support of opposer’s complaint in its discovery responses.
Inasmuch as the burden of proof in this proceeding is on the
opposer, he cannot prevail when he fails to introduce evidence
in support of his claims. Hester Industries Inc. v. Tyson
Foods, Inc. 2 USPQ2d 1646 (TTAB 1987). Although opposer also
claimed the BUNS registration, according to the records of the
USPTO, this registration has been canceled under Section 8 of
the Act. A canceled registration is not evidence of anything
except that it issued, and hence, we have given it no
evidentiary effect. See Action Temporary Services Inc. v.
Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989) and TBMP § 704.03(b)(1)(A)(2d ed. rev. 2004).
Accordingly, the opposition must be dismissed. See Levi
Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464,
1471 (TTAB 1993), recon. denied, 36 USPQ2d 1328, 1330 (TTAB
1994).
Decision: Judgment is hereby entered against opposer,
and the opposition is dismissed with prejudice.