H. Michael Bishopv.Marina Flournoy

Trademark Trial and Appeal Board

Sep 5, 2008

No. 91175625 (T.T.A.B. Sep. 5, 2008)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB Mailed: September 5, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

H. Michael Bishop

v.

Marina Flournoy
_______

Opposition No. 91175625
to Application No. 78780720
filed on December 26, 2005

Opposition No. 91175737
to Application No. 78780721
filed on December 26, 2005

_______

Christine Lardas, Esq., for H. Michael Bishop.

Marina L. Flournoy, pro se.
_______

Before Drost, Mermelstein, and Bergsman, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:
Applicant Marina Flournoy seeks registration of the
marks 100% ART (‘720 Application) and ONEHUNDREDPERCENT ART
(‘721 Application), both for
Printed informational cards in the field
of art, cards, greeting cards,
correspondence cards, gift cards,
invitation cards, mounted posters, note
cards, occasion cards, paintings,
paintings and calligraphic works,
paintings and their reproductions,
posters, tarot cards, unmounted posters,
Opposition No. 91175625
Opposition No. 91175737

2
water color finished paintings, pastel
and oil colors finished paintings.

International Class 16. Both applications were filed based
on the allegation of a bona fide intent to use the marks in
commerce, and both include disclaimers of the word ART apart
from the mark as shown.
Opposer H. Michael Bishop filed an opposition to
registration of each application alleging standing and (1)
priority and a likelihood of confusion with opposer’s
previously used mark; and (2) that applicant committed fraud
in applying for and prosecuting its applications. Applicant
filed an answer, denying the allegations in the notice of
opposition. Because these proceedings present common issues
of law, we consolidate them for purposes of issuing this
decision.
On May 12, 2008, opposer filed a trial brief in each
opposition, attaching evidence in support of its case.
Applicant did not file trial briefs. Then, on July 27,
2008, opposer filed a reply brief in each opposition,
arguing that it is entitled to judgment because applicant
did not respond to opposer’s brief.
Discussion
In any opposition proceeding before the Trademark Trial
and Appeal Board, the opposer bears the burden of proving
its case by a preponderance of evidence. Eastman Kodak Co.
Opposition No. 91175625
Opposition No. 91175737

3
v. Bell & Howell Document Mgmt. Prods. Co., 994 F.2d 1569,
26 USPQ2d 1912, 1918 (Fed. Cir. 1993)(“the challenger's
burden of proof in both opposition and cancellation
proceedings is a preponderance of the evidence”). Our rules
prescribe the procedures for introducing evidence to be
considered. See Trademark Rule 2.120(j); 2.122 – 2.125. In
each opposition proceeding, the Board sets the schedule for
a trial, during which each party is afforded the opportunity
to present evidence in support of its case by testimony, or
by notice of reliance.
In the oppositions at bar, opposer’s thirty-day trial
period was set to close on November 29, 2007 (‘625
Opposition), and on December 3, 2007 (‘737 Opposition).
Opposer did not file testimony or a notice of reliance in
either opposition.1 Although opposer did attach evidence to
its trial brief, that evidence may not be considered because
it was not properly submitted during opposer’s assigned
trial period. Trademark Rule 2.123(l)(“Evidence not
obtained and filed in compliance with these sections will
not be considered.”).
We find it unnecessary to address the arguments made in

1 An unsigned “License Agreement” was attached to both notices of
opposition. This is not evidence which may be considered; with
one exception not relevant here, “an exhibit attached to a
pleading is not evidence on behalf of the party to whose pleading
the exhibit is attached unless identified and introduced in
evidence as an exhibit during the period for the taking of
testimony.” Trademark Rule 2.122(c).
Formatted: Font: Courier New, 12
pt
Opposition No. 91175625
Opposition No. 91175737

4
opposer’s brief. As noted above, it was opposer’s burden to
prove its case by a preponderance of evidence. Without such
evidence, the arguments made in opposer’s brief are not
entitled to any weight because they lack factual support.
Because it has submitted no evidence, opposer has not proven
its standing or any pleaded ground for relief.2
Conclusion
After careful consideration of the record, we conclude
that opposer has failed to submit admissible evidence which
would establish either its standing or a ground for refusal
of registration of applicant’s trademarks.
Decision: The opposition is accordingly DISMISSED.

2 For instance, opposer has not proven that it has any prior
trademark right upon which its claims of damage or likelihood of
confusion may be predicated. Further, opposer has not proven the
falsity of any statement made by applicant during prosecution of
the subject applications or that such statements were made with
the requisite intent to support opposer’s claim of fraud.