Four Seasons Brands, LLCv.Kirstie L. Crivello

Trademark Trial and Appeal Board

Oct 14, 2021

91233211 (T.T.A.B. Oct. 14, 2021)

kb
October 14, 2021

Opposition No. 91233211

Four Seasons Brands, LLC

v.
Kirstie L. Crivello

Before Kuhlke, Shaw, and Pologeorgis,
Administrative Trademark Judges.

By the Board:

This proceeding comes before the Board for consideration of Opposer’s motion
(filed February 5, 2021) for partial summary judgment. The motion is fully briefed.
I. Background
Applicant seeks to register the mark FOUR SEASONS OUTDOOR LIVING CO.
and Design, as displayed below, for “construction consultation” in International Class
37.1

1 The description of the mark reads as follows: “The mark consists of a rounded brown and
black patterned square with a green tree in the middle of a white rounded rectangle. The
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
Opposition No. 91233211

2
The application was filed on July 24, 2016 based on an allegation of a bona fide intent
to use the mark in commerce pursuant to Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b).
Opposer filed a notice of opposition on March 3, 2017, asserting likelihood of
confusion based on its prior common law rights in the mark FOUR SEASONS, and
registrations for marks that incorporate the words FOUR SEASONS, as identified
below:2
Mark App.
No. /
Date
Reg. No. /
Date
Goods/Services
FOUR SEASONS 7335758
7
Apr. 1,
1982
1372107
Nov. 26,
1985
(renewed)
Class 6: Solariums and
greenhouses made primarily of
metal
Class 37: Custom installation of
greenhouses and solariums in
homes

fourseasonssunrooms
.com
(SUNROOMS
disclaimed)
7612710
1
Sept. 13,
2000
2778212
Oct. 28,
2003
(renewed)
Class 6: Prefabricated buildings
made primarily of metal, namely,
solariums; metal greenhouse
frames
Class 19: Prefabricated
greenhouses; nonmetal green
house frames
Class 37: Installation of
greenhouses and solariums in
homes and commercial property

wording ‘FOUR SEASONS OUTDOOR LIVING CO.’ appears in black below the design.” The
colors brown, black, green and white are claimed as a feature of the mark. The wording
“OUTDOOR LIVING CO.” is disclaimed.
2 In addition to the registrations below, Opposer pleaded ownership of seven registrations
that were subsequently cancelled due to Opposer’s failure to file Section 8 affidavits. See 1
TTABVUE. The cancelled registrations are given no consideration.
Opposition No. 91233211

3
BUILD THE BEST
FOUR SEASONS
SUNROOMS &
Design3

(SUNROOMS
disclaimed)
7754686
8

Aug. 14,
2008
3854338

Sept. 28,
2010
(renewed)
Class 6: Prefabricated metal
sunrooms

Class 19: Prefabricated non-metal
sunrooms
AVALON WINDOW
BY FOUR SEASONS

(WINDOW
disclaimed)
8660283
2

Apr. 20,
2015
4989933

Jun. 28,
2016
(Section 8
and 15
filed)
Class 19: Vinyl windows
CHOICE WINDOW
BY FOUR SEASONS

(WINDOW
disclaimed)
8660283
9

Apr. 20,
2015
4989934

Jun. 28,
2016
Class 19: Vinyl windows
FOUR SEASONS
SUNROOMS &
WINDOWS &
Design4

(SUNROOMS &
WINDOWS
disclaimed)
8690922
3

Feb. 16,
2016
5045463

Sept. 20,
2016
Class 6: prefabricated metal
buildings, namely, sunrooms,
solariums, patio enclosures,
conservatories, screen enclosures,
patio covers, pergolas, lattices and
greenhouses; metal windows;
metal doors

Class 19: prefabricated non-metal
buildings, namely, sunrooms,
solariums, patio enclosures,
conservatories, screen enclosures,
patio covers, pergolas, lattices and

3 Per the description of the mark, “[t]he mark consists of the words ‘BUILD THE BEST FOUR
SEASONS SUNROOMS’ in stylized lettering with the design feature of four boxes
containing, respectively, a sun, a snow flake, a leaf and a tulip.”
4 Per the description of the mark, “[t]he mark consists of the design of a square comprised of
smaller blue, green, orange, and magenta squares which sit below the white outline of a
square and to the right are the words ‘FOUR SEASONS SUNROOMS & WINDOWS’ in the
color grey.” The colors blue, green, orange, magenta, white and grey are claimed as features
of the mark.
Opposition No. 91233211

4
greenhouses; non-metal windows;
non-metal doors
FOUR SEASONS
BUILDING
PRODUCTS

(BUILDING
PRODUCTS
disclaimed)
8639765
7

Sept. 17,
2014
5324126

Oct. 31,
2017
Class 6: Pre-fabricated metal
buildings, namely, sunrooms,
solariums, patio enclosures,
conservatories, patio covers,
screen enclosures, pergolas, car
ports, awnings and greenhouses

Class 19: Prefabricated non-metal
buildings, namely, sunrooms,
solariums, patio enclosures,
conservatories, patio covers,
screen enclosures, pergolas, car
ports, awnings and greenhouses
In her answer, Applicant denied the salient allegations in the notice of opposition
and asserted nine “affirmative defenses.” 4 TTABVUE. In its June 24, 2021 order,
the Board struck Applicant’s first affirmative defense and reservation of right to
assert additional affirmative defenses, and permitted the remaining defenses to
remain as amplifications of Applicant’s denials. 55 TTABVUE 2, n.2.
On February 5, 2021, Opposer filed a motion for partial summary judgment as to
its entitlement to a statutory cause of action, its priority based on ownership of the
above pleaded registrations, and the validity of those registrations. 49 TTABVUE. In
support thereof, Opposer submitted records for the above-referenced pleaded
registrations from the USPTO’s Trademark Status & Document Retrieval (“TSDR”)
electronic records database. Id. at 17-73.
In lieu of a response, on March 8, 2021 Applicant filed a request for discovery
pursuant to Fed. R. Civ. P. 56(d), and sought leave to amend her answer. 51 and 52
TTABVUE. On June 24, 2021, the Board denied Applicant’s motions and allowed
Opposition No. 91233211

5
Applicant thirty days to respond to Opposer’s motion for summary judgment. 55
TTABVUE 7, 11. Applicant filed her response to the motion for summary judgment
on July 26, 2021. 56 TTABVUE. Opposer filed its reply on August 15, 2021. 57
TTABVUE.
II. Summary Judgment
A. Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute with respect to any material fact, thus allowing the case to be
resolved as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for summary
judgment has the burden of demonstrating the absence of any genuine dispute as to
a material fact, and that it is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc. v. Pannill Knitting
Co. Inc., 833 F.2d 1560, 4 USPQ2d 1793, 1796 (Fed. Cir. 1987). A factual dispute is
genuine if, on the evidence of record, a reasonable fact finder could resolve the matter
in favor of the non-moving party. See Opryland USA Inc. v. Great Am. Music Show
Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992); Olde Tyme Foods, Inc. v.
Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992).
Additionally, the evidence of record must be viewed in the light most favorable to
the non-moving party, and all justifiable inferences must be drawn from the
undisputed facts in favor of the non-moving party. See Lloyd’s Food Prods. Inc. v. Eli’s
Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); Opryland USA, 23 USPQ2d at
1472. We may not resolve genuine disputes as to material facts and, based thereon,
Opposition No. 91233211

6
decide the merits of the proceeding. Rather, we may only ascertain whether any
material fact is genuinely disputed. See Lloyd’s Food Prods., 25 USPQ2d at 2029;
Olde Tyme Foods, 22 USPQ2d at 1542; Meyers v. Brooks Shoe Inc., 912 F.2d 1459,
16 USPQ2d 1055, 1056 (Fed. Cir. 1990) (“If there is a real dispute about a material
fact or factual inference, summary judgment is inappropriate; the factual dispute
should be reserved for trial.”).
B. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be proven in every inter partes
case.5 See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020), cert. denied, ___ U.S. ___ (2021)
(citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 109
USPQ2d 2061, 2067 n.4 (2014)). In an opposition proceeding, a party in the position
of opposer may oppose the registration of an applicant’s mark where such opposition
is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the
opposer’s reasonable belief in damage is proximately caused by registration of the
applicant’s mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277,
at *6-7 (Fed. Cir. 2020), cert. denied, ___ U.S. ___ (2021). Entitlement to a statutory
cause of action is found where the plaintiff demonstrates “reasonable belief of damage
resulting from a likelihood of confusion” that “is not wholly without merit.”

5 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 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 Section 13
and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020
USPQ2d 11388, at *2 (TTAB 2020).
Opposition No. 91233211

7
Corcamore, 2020 USPQ2d 11277, at *8 (citing Lipton Indus., Inc. v. Ralston Purina
Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
Applicant argues, with no evidentiary support, that Opposer has not made out a
non-frivolous assertion of likelihood of confusion because there is a “genuine dispute
between the Parties [] whether the dominant element of Opposer’s registered mark
is FOUR SEASONS or whether the dominant element is the graphical element.” 56
TTABVUE 3-4.
Opposer has submitted copies of its pleaded Registration Nos. 1372107, 2778212,
3854338, 4989933, 4989934, 5045463, and 5324126, obtained from the USPTO’s
TSDR electronic database records, showing the current status and title of these
pleaded registrations. See Bongrain Int’l. (Am.) Corp. v. Moquet Ltd., 230 USPQ 626,
628 n.3 (TTAB 1986); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) § 528.05(d) (2021) (a plaintiff may make its pleaded registration of record,
for purposes of summary judgment only, by filing a current printout of information
from the USPTO electronic database records showing the status and title thereof,
with its brief on the summary judgment motion). One of these registrations is for the
standard character mark FOUR SEASONS (Reg. No. 1372107), which does not
contain any graphical element. See 49 TTABVUE 17.6
Opposer has furthermore alleged that the parties’ marks are similar, that their
goods and services are related and are marketed to the same customers, and that

6 Applicant does not argue that FOUR SEASONS is not the dominant element of its own
mark.
Opposition No. 91233211

8
those customers are likely to be confused into believing that Applicant’s services are
sponsored by Opposer. 1 TTABVUE 15-16.
On this record, we find no genuine dispute of material fact that Opposer’s
opposition to Applicant’s mark is within the zone of interests protected by the statute,
and that Opposer has a reasonable belief of damage resulting from registration of
Applicant’s mark.7 See Corcamore, 2020 USPQ2d 11277, at *8 (“well-pleaded”
allegations of likelihood of confusion are “sufficient to establish a real interest in the
cancellation proceeding”); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir. 2012) (plaintiff is not required to plead
or prove actual harm to maintain the opposition; a reasonable basis for its belief is
sufficient); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844
(Fed. Cir. 2000) (“A belief in likely damage can be shown by establishing a direct
commercial interest.”). Accordingly, we find no genuine dispute of material fact that
Opposer is entitled to a statutory cause of action.8
C. Priority and Validity of the Registrations
The submitted TSDR records for Registration Nos. 1372107, 2778212, 3854338,
4989933, 4989934, 5045463, and 5324126 constitute prima facie evidence of the
validity of the registered marks, the registration of the marks, Opposer’s ownership
of the marks, and Opposer’s exclusive right to use the marks in commerce in

7 In finding so, we make no ruling on Opposer’s ability to prove likelihood of confusion under
Section 2(d), 15 U.S.C. § 1052(d).
8 Opposer is reminded that it must maintain its entitlement throughout the proceeding;
however, unless Opposer’s status changes, entitlement is not at issue for a determination on
the merits of Opposer’s claim.
Opposition No. 91233211

9
connection with the goods and services specified in those registrations. Trademark
Act Section 7, 15 U.S.C. § 1057.
Applicant presents no evidence to rebut the attendant presumptions under
Section 7, other than an excerpt of Opposer’s website that Applicant argues
demonstrates abandonment. 56 TTABVUE 4-5. However, Applicant’s argument that
Opposer has abandoned any of the above-referenced registrations is foreclosed by
Applicant’s failure to file a timely counterclaim to cancel the registrations. See
Trademark Rule 2.106(b)(3)(ii), 37 C.F.R. 2.106(b)(3)(ii); Gillette Co. v. “42” Prods.
Ltd., Inc., 396 F.2d 1001, 158 USPQ 101, 104 (CCPA 1968) (“[I]n the absence of a
counterclaim for cancellation, it is not open to an applicant, under our decisions, to
prove abandonment of a registered mark in an opposition proceeding.”). See also
Perma Ceram Enters. Inc. v. Preco Indus. Ltd., 23 USPQ2d 1134, 1135 n.2 (TTAB
1992) (“To state the obvious, a party may not avoid summary judgment by contending
that genuine issues of material fact exist as to issues not raised in the pleadings.”).
Accordingly, there is no genuine dispute of material fact that Registration Nos.
1372107, 2778212, 3854338, 4989933, 4989934, 5045463, and 5324126 are valid and
subsisting and are owned by Opposer.
Further, inasmuch as Opposer has proven that it owns its pleaded Registration
Nos. 1372107, 2778212, 3854338, 4989933, 4989934, 5045463, and 5324126, priority
is not at issue. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 110 (CCPA 1974); Research in Motion Ltd. v. Defining Presence Mktg. Grp.
Inc., 102 USPQ2d 1187, 1190 (TTAB 2012); L’Oreal S.A. v. Marcon, 102 USPQ2d
Opposition No. 91233211

10
1434, 1436 n.7 (TTAB 2012). Accordingly, there is no genuine dispute of material fact
that Opposer has priority in its marks for the goods and services listed in its pleaded
registrations.
D. Summary
For the reasons above, Opposer’s motion for partial summary judgment is
granted. This proceeding will go to trial on the issue of likelihood of confusion only.
III. ACR
The legal issues presented in this proceeding appear to be appropriate for
resolution by means of the Board’s accelerated case resolution (“ACR”) procedure, and
the Board suggests that the parties stipulate to continuing the opposition by that
process.9 In a traditional ACR proceeding, parties forego a formal trial in favor of
submitting briefs with attached evidence, and agreeing that the Board may resolve
any genuine disputes of material fact raised by the parties’ filings or the record, and
issue a final decision. See, e.g., Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1776
(TTAB 2013).
Short of traditional ACR, parties may stipulate to various facts and procedures.
See Target Brands, Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007) (parties
stipulated to entire record of the case including business records, public records,

9 Absent such agreement, the parties should note that the evidence submitted in connection
with a motion for summary judgment or opposition thereto is of record only for consideration
of that motion. To be considered at final hearing, any such evidence must be properly
introduced during the appropriate trial period. See Levi Strauss & Co. v. R. Joseph
Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993); Pet Inc. v. Bassetti, 219 USPQ 911 (TTAB
1983). The parties, however, may stipulate that any or all of the summary judgment
evidence be treated as properly of record for purposes of final decision. See, e.g., Micro
Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998).
Opposition No. 91233211

11
government documents, marketing materials and materials obtained from the
Internet as well as thirteen paragraphs of facts; the parties agreed to reserve the
right to object to such facts and documents on the bases of relevance, materiality and
weight).
The following materials provide additional information regarding ACR:
1. General description of ACR:
https://www.uspto.gov/sites/default/files/trademarks/process/appeal/Accelerated_
Case_Resolution__ACR__notice_from_TTAB_webpage_12_22_11.pdf
2. FAQs on ACR:
https://www.uspto.gov/sites/default/files/documents/acr-faq-updates.doc
3. TBMP §§ 528.05(a)(2), 702.04 and 705.
The parties are therefore encouraged to jointly contact the Board’s interlocutory
attorney responsible for this proceeding by telephone to discuss the possibility of
ACR, any necessary or desired stipulations, and an agreed schedule for proceeding
under ACR.
If the parties decide not to proceed via ACR, these consolidated proceedings will
continue on the schedule set out below.
IV. Schedule
This proceeding is resumed. Remaining dates are reset as follows:

Plaintiff's Pretrial Disclosures Due 11/1/2021
Plaintiff's 30-day Trial Period Ends 12/16/2021
Defendant's Pretrial Disclosures Due 12/31/2021
Defendant's 30-day Trial Period Ends 2/14/2022
Plaintiff's Rebuttal Disclosures Due 3/1/2022
Plaintiff's 15-day Rebuttal Period Ends 3/31/2022
Opposition No. 91233211

12
Plaintiff's Opening Brief Due 5/30/2022
Defendant's Brief Due 6/29/2022
Plaintiff's Reply Brief Due 7/14/2022
Request for Oral Hearing (optional) Due 7/24/2022

Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125, 37 C.F.R. §§ 2.121-2.125. These include
pretrial disclosures, the manner and timing of taking testimony, matters in evidence,
and the procedures for submitting and serving testimony and other evidence,
including affidavits, declarations, deposition transcripts and stipulated evidence.
Trial briefs shall be submitted in accordance with Trademark Rules 2.128(a) and (b),
37 C.F.R. §§ 2.128(a) and (b). Oral argument at final hearing will be scheduled only
upon the timely submission of a separate notice as allowed by Trademark Rule
2.129(a), 37 C.F.R. § 2.129(a).
TIPS FOR FILING EVIDENCE, TESTIMONY, OR LARGE DOCUMENTS
The Board requires each submission to meet the following criteria before it will be
considered: 1) pages must be legible and easily read on a computer screen; 2) page
orientation should be determined by its ease of viewing relevant text or evidence, for
example, there should be no sideways or upside-down pages; 3) pages must appear in
their proper order; 4) depositions and exhibits must be clearly labeled and numbered
– use separator pages between exhibits and clearly label each exhibit using sequential
Opposition No. 91233211

13
letters or numbers; and 5) the entire submission should be text-searchable.
Additionally, submissions must be compliant with Trademark Rules 2.119 and 2.126.
Submissions failing to meet all of the criteria above may require re-filing. Note:
Parties are strongly encouraged to check the entire document before filing.10 The
Board will not extend or reset proceeding schedule dates or other deadlines to allow
time to re-file documents. For more tips and helpful filing information, please visit
the ESTTA help webpage.

10 To facilitate accuracy, ESTTA provides thumbnails to view each page before submitting.