Hornblower & Weeks, Inc.v.Hornblower & Weeks, Inc.

Trademark Trial and Appeal Board

Jul 30, 2001

No. 91110043 (T.T.A.B. Jul. 30, 2001)

7/30/01

GFR

Opposition No. 110,043

Hornblower & Weeks, Inc.

v.

Hornblower & Weeks, Inc.

Before Seeherman, Wendel and Rogers,
Administrative Trademark Judges.

Rogers, Administrative Trademark Judge:

Applicant Hornblower & Weeks, Inc., a Delaware
corporation, has applied to register the mark HORNBLOWER
& WEEKS for services identified as "investment banking,
investment management and brokerage services namely,
public and private underwriting, distribution and
placement of corporate, municipal and governmental
securities, investment management and counseling services
and brokerage of securities and commodities," in
International Class 36.1 After the Office published
applicant's mark for opposition, Hornblower & Weeks,

1 Application serial no. 75/283,988, filed April 30, 1997, based
on applicant's professed bona fide intention to use the mark in
commerce.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
2900 Crystal Drive
Arlington, Virginia 22202-3513

THIS DISPOSITION
IS CITABLE AS
PRECEDENT
OF THE T.T.A.B.
Opposition No. 110,043
2
Inc., a Georgia corporation, filed a notice of
opposition. Now ready for consideration are opposer's
motion for summary judgment, with its included request
for leave to amend the notice of opposition, and
applicant's combined response and cross-motion for
"relief granting registration in its intent-to-use
application and relief canceling opposer's current
registration #2,162,233 of October 12, 2000."2

The Pleadings

We consider first the pleadings and opposer's motion
for leave to amend its notice of opposition. Opposer's
notice of opposition sets forth alternative claims under
Section 2(d) of the Lanham Act, 15 U.S.C. §1052(d). The
notice relies on (1) opposer's claim of actual use of a
mark identical to that in applicant's intent-to-use

2 Applicant is represented by Ralph Hornblower, III, who signed
the involved application as applicant's secretary, but signed
the response and cross-motion as its counsel and president.
Applicant's response and cross-motion is dated February 9, 2001.
It includes a certificate attesting to the forwarding of
opposer's service copy on February 10, 2001. There is no
certificate of mailing, however, and the combined filing was not
received by the Office until February 15, 2001. Since
applicant's response to opposer's motions was due February 12,
2001--by virtue of an earlier approved motion to extend--the
response and cross-motion is untimely. Nonetheless, in view of
the potentially dispositive nature of opposer’s motion for
summary judgment in the opposition and what we view as
applicant’s cross-motion for judgment on its affirmative
defense, we have exercised our discretion and considered
applicant’s filing in its entirety.
Opposition No. 110,043
3
application, prior to the filing date of that
application, and on (2) an approved, use-based
application to register the mark.
Opposer's HORNBLOWER & WEEKS mark was published for
opposition on March 10, 1998. Thus, when opposer filed
its notice of opposition on March 27, 1998, it pleaded
ownership of its application and asserted: "The
registration is expected to issue in due course." When
applicant filed its answer, it could not have included a
counterclaim for cancellation of opposer's anticipated
registration, because it had not yet issued.3 Applicant's
answer did, however, include the following allegations
denominated as affirmative defenses:

11. The Notice of Opposition fails to state a
claim upon which relief can be granted.

12. Applicant, and not Opposer, has superior
rights in the HORNBLOWER & WEEKS mark.

13. Opposer's alleged use of the HORNBLOWER &
WEEKS mark constitutes a fraudulent trading on
the reputation of others, and therefore opposer
cannot be damaged by registration of the mark to
Applicant.

After the answer was filed, the parties agreed to,
or obtained by motion, a number of extensions or

3 Registration no. 2,162,233 issued on June 2, 1998, nearly two
weeks after applicant filed its answer.
Opposition No. 110,043
4
suspensions of the discovery and trial schedule or of
certain deadlines relating to discovery. At no time did
either party move for leave to amend its pleading.
On November 30, 2000, opposer filed its motion for
summary judgment. In support of that motion, opposer
submitted, among other items, a certified copy of
registration no. 2,162,233 showing that the registration
is subsisting and owned by opposer. The motion includes
a footnoted request that "[t]o the extent necessary,
Opposer hereby also moves to amend the notice of
opposition to plead its [registration] which issued
subsequent to the filing of the notice of opposition
initiating this proceeding." Applicant, despite
including in its response thereto a request for "relief
canceling opposer's current registration," did not move
for leave to amend its answer to assert a counterclaim
and did not file the fee for a counterclaim.
For the reasons explained below, we enter judgment
in favor of opposer on its Section 2(d) claim only
insofar as it is based on actual use of the HORNBLOWER &
WEEKS mark in commerce prior to the filing date of
applicant's intent-to-use application4, and on applicant’s

4 If opposer did not have a registration, applicant would still
be confronted with opposer's common law rights accrued through
Opposition No. 110,043
5
affirmative defense which, as explained herein, we
consider to be a defense asserting that opposer has
unclean hands. Therefore, we do not reach the merits of
either opposer’s footnoted request to amend its notice of
opposition to rely on its registration or applicant’s
request for cancellation of the registration without
support of a counterclaim.

Opposer's Motion for Summary Judgment

Opposer, as the party moving for summary judgment,
bears the initial burden of demonstrating the absence of
any genuine issue of material fact and that it is
entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317 (1986) and Sweats Fashions
Inc. v. Pannill Knitting Co. Inc., 833 F.2d 1560, 4
USPQ2d 1793 (Fed. Cir. 1987). If opposer meets this
burden, then applicant, to avoid entry of an adverse
judgment, must present sufficient evidence to show an
evidentiary conflict as to one or more material facts in

use. See, e.g., Volkswagenwerk Aktiengesellschaft v. Wheeler,
814 F.2d 812, 2 USPQ2d 1264 (1st Cir. 1987). See also, In re
International Flavors & Fragrances Inc., 183 F.3d 1361, 1366, 51
USPQ2d 1513, 1516 (Fed. Cir. 1999)(“The owner of a trademark
need not register his or her mark in accordance with the Lanham
Act in order to use the mark in connection with goods or to seek
to prevent others from using the mark.”), and In re McGinley,
660 F.2d 481, 486 n.12, 211 USPQ 668, 674 n.12 (CCPA 1981) (User
of mark refused registration under Section 2(a) of the Lanham
Act still may enforce rights under common law).
Opposition No. 110,043
6
issue. See Opryland USA Inc. v. Great American Music
Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992).
In our consideration of opposer's request for judgment,
the evidence must be viewed in a light most favorable to
applicant as the non-movant, and all justifiable
inferences are to be drawn in the non-movant's favor.
Lloyd's Food Products Inc. v. Eli's Inc., 987 F.2d 766,
25 USPQ2d 2027 (Fed. Cir. 1993); Opryland USA, supra. In
considering whether to grant or deny a motion for summary
judgment, the Board may not resolve issues of material
fact, but can only ascertain whether genuine disputes
exist regarding such issues. Opryland USA, supra, and
Lloyd’s Food Products, supra.
Opposer, as the party moving for summary judgment in
its favor on its Section 2(d) claim based on prior use,
must establish that there is no genuine dispute as to (1)
its priority of use and (2) that contemporaneous use of
the HORNBLOWER & WEEKS mark by the parties, for their
respective services, would be likely to cause confusion,
mistake or to deceive consumers.
In regard to likelihood of confusion, applicant
admitted in its answer that the parties' marks are
identical; and we note that opposer's president has, in
his declaration, attested to opposer's use of the mark
Opposition No. 110,043
7
for "security brokerage, investment banking and asset
management services," which are, in large part, identical
to applicant's identified services. Use of identical
marks for virtually identical services would create a
likelihood of confusion. Indeed, as revealed by the
following passage from applicant's response to the motion
for summary judgment (pp.7-9), applicant does not dispute
that a likelihood of confusion would result:

"Certainly there is confusion between the
legitimate Hornblowers who continue to be very
much in commerce in the financial services
industry in various capacities under the
Hornblower name--a name which is distinctive and
unforgettable.
… There is great similarity of trade channels
that applicant and pretender opposer are likely
to use. Opposer has even located one of his
[sic] offices in the same building as the
original firm.
… Much of the brokerage business is done through
'cold calling,' and the immediate and first
impression [of] use of the unusual name
Hornblower would obviously create confusion on
the part of potential customers, and lead them
to assume they are dealing with the legitimate
users of the name. … Applicant['s] shareholders
are very much aware of the responsibility they
owe to their forebears in establishing a mark of
such renown and reputation. That [opposer is]
mining that goodwill and 'palming off' or
attempting to pass off by deception that they
are the legitimate users of the mark is too
obvious to comment upon." (Italic in original).

The question whether opposer has carried its initial
burden as the party moving for summary judgment, thus,
Opposition No. 110,043
8
comes down to the question of whether opposer has
established that there is no genuine issue of fact
regarding its priority of use. We find that it has.
The declaration of John R. Rooney attests to his
status as president of opposer; that opposer "has
continuously provided security brokerage, investment
banking and asset management services identified by the
service mark, HORNBLOWER & WEEKS for institutional,
corporate and individual clients, since at least as early
as November 1, 1996"; that opposer has been a member of
the National Association of Securities Dealers, Inc.
since the same date and applied for and received
authorization from that body "to use the service mark and
trade name HORNBLOWER & WEEKS"; that opposer has, since
its first adoption of the mark, "continuously used its
service mark in promotional and advertising materials…
and in other ways"; that opposer has expended in excess
of $100,000 on promotions and advertising featuring the
mark and generated revenues in excess of $25 million; and
that opposer "has made exclusive use of the mark
HORNBLOWER & WEEKS in connection with its security
brokerage, investment banking and asset management
services, since adoption of the name in 1996"; and that
Mr. Rooney is "not aware of any use of the trade name or
Opposition No. 110,043
9
service mark by any unrelated entity for security
brokerage, investment banking and asset management
services, since that time."
Opposer did not introduce any corroborative
evidence, but Mr. Rooney's declaration testimony is
internally consistent, is not characterized by
uncertainty, and is not challenged in any way by
applicant. Moreover, applicant does not challenge the
Rooney declaration insofar as it asserts adoption and use
by opposer of HORNBLOWER & WEEKS as of a date prior to
the filing date of applicant's intent-to-use application,
or insofar as it alleges continuous use since that date.
Nor has applicant attempted to show that it has made any
use of HORNBLOWER & WEEKS that would establish
applicant's priority under the law as to that mark. The
most that can be said is that opposer acknowledges the
earlier use of HORNBLOWER & WEEKS by members of the
Hornblower family, or by businesses in which they were
involved. However, opposer asserts that that particular
mark had not been in use for at least 15 years prior to
opposer's adoption5, and applicant does not dispute this
point.

5 A letter written by NASD Regulation, Inc. to applicant's
president, produced during his discovery deposition and
introduced by opposer with its motion for summary judgment,
Opposition No. 110,043
10

Applicant's Affirmative Defenses

Applicant has clearly expressed displeasure with
opposer's adoption and use of a mark--HORNBLOWER & WEEKS-
-that assertedly had been in use for many years by
members of the Hornblower family in conjunction with
various business enterprises in which they had been
involved. In doing so, applicant alludes to issues that
have not been pleaded, but which we consider nonetheless
as an attempt to set up one or more affirmative defenses.
Applicant argues that since 1978, "applicant, and
other family shareholders of applicant, have been in
continuous commerce, using marks Ralph Hornblower,
Hornblower & Company, P.B. Hornblower, and P.S.
Hornblower, Hornblower Capital, and R. Hornblower &
Company, among others, all uses of which greatly precede
opposer's first use on November 1, 1996." (Bold in
original.) Applicant also argues that "applicant['s]
shareholders have used the Hornblower mark since the
Hornblower & Weeks firm was merged into Shearson.
…[Opposer] began using the Hornblower name only in the
last few years, and by no stretch of the imagination

supports opposer's assertion. The letter is discussed in more
detail, infra, in connection with applicant's request for
judgment in its favor on its affirmative defense.
Opposition No. 110,043
11
could be held to be a prior user of the mark in
commerce." (Bold in original.) Applicant does not
contend that there was any use of the HORNBLOWER & WEEKS
mark, by it, by any related entity, or by any member of
the Hornblower family, since the referenced merger.
We note that only some of the facts asserted by
applicant are supported by its president's declaration
and the rest is mere argument. We have, however,
considered the entirety of the presentation in our effort
to discern whether applicant is attempting to assert that
it has defenses which it could plead, if granted leave to
do so, and which would have to be considered vis-a-vis
opposer's motion for summary judgment in the opposition.
In essence, applicant appears to be arguing either
(1) that there is a family of Hornblower marks on which
applicant may rely and which was fully formed prior to
opposer's adoption and use of HORNBLOWER & WEEKS, or (2)
that prior adoption and use by applicant's president and
other shareholders in applicant of one or more of various
Hornblower marks precludes a finding of priority in
opposer in regard to the HORNBLOWER & WEEKS mark.
With respect to the first argument, it is well
settled that a family of marks argument can be used
offensively as a sword but not defensively as a shield.
Opposition No. 110,043
12
See Baroid Drilling Fluids Inc. v. Sun Drilling Products,
24 USPQ2d 1048 (TTAB 1992). The Baroid decision dealt
squarely with the question also presented by the case at
hand, specifically, "the question of whether a defendant
in a Board inter partes proceeding can rely upon its
asserted ownership of a family of marks as a defense
against a plaintiff's intervening common-law rights."
Baroid, supra at 1049. In explaining why a defendant
could not, the Board noted:

The issue under Section 2(d) is whether
applicant's mark sought to be registered, or
respondent's mark, the registration of which is
sought to be cancelled, so resembles plaintiff's
registered and/or previously used mark or marks
as to be likely to cause confusion. Thus, the
fact that a plaintiff may rely upon any
confusingly similar mark which it has either
registered or previously used, is to be
contrasted with the fact that a defendant whose
sole mark in issue is its mark sought to be
registered or its mark sought to be cancelled,
can rely upon only its rights in that mark,
except in very limited situations. [Italics in
original]

One situation involves a defendant's claim that
it already owns a substantially similar
registered mark for substantially similar goods
and/or services such that the second
registration (or second registration sought)
causes no added injury to the plaintiff. See:
Morehouse Manufacturing Corp. v. J. Strickland &
Co., 407 F.2d 881, 160 USPQ 715 (CCPA 1969).

A second situation involves a defendant's
attempt to defeat a plaintiff's priority of use
claim by virtue of the defendant's earlier use
Opposition No. 110,043
13
of a mark which is the legal equivalent of
defendant's involved mark for the same or
similar goods. This latter situation involves
the concept of 'tacking.' See: Van Dyne-Crotty
Inc. v. Wear-Guard Corp., 926 F.2d 1156, 17
USPQ2d 1866 (Fed. Cir. 1991), aff'g 18 USPQ2d
1804 (TTAB 1990) [other citation omitted] … [A]
party seeking to tack on its use of an earlier
mark to its use of a later mark may do so only
if the earlier mark is the legal equivalent of
the mark in question or indistinguishable
therefrom, and would be considered by purchasers
as the same mark. For purposes of tacking, two
marks are not necessarily legal equivalents
merely because they are considered to be
confusingly similar. Tacking of an earlier use
of one mark onto the later use of a very similar
mark, for purposes of priority, has been
permitted only in "rare" instances. [citation
omitted].

To allow a defendant to plead and prove as a
defense against a plaintiff's intervening
common-law rights that it owns an earlier family
of marks would create, at least in our minds, an
unacceptable loophole to the stringent standards
applicable to the two situations set forth
above. [footnote omitted] The loophole would be
unacceptable because, as noted above, the
priority-of-use issue under Section 2(d) (when
priority of use is in issue) is whether the
defendant's use of its mark sought to be
registered, or the registration of which is
sought to be cancelled, precedes the plaintiff's
use of the plaintiff's pleaded mark(s), not
whether the defendant has priority of use of
another mark or marks which the plaintiff's
mark(s) so resembles as to be likely to cause
confusion. Thus, we must narrowly construe the
availability of defenses grounded upon ownership
of other earlier-used and/or registered marks.

Id. at 1052-53.

Opposition No. 110,043
14
For the reasons clearly articulated in Baroid,
applicant in the instant case is unable to rely on any
family of marks, whether inchoate or fully formed, as a
defense to opposer's Section 2(d) claim based on prior
actual use in commerce of the HORNBLOWER & WEEKS mark.
In closing our discussion of the family of marks issue,
we note an observation made in the Baroid decision. That
is, for an applicant who may lose an opposition battle
before the Board because of its inability to rely on
family of marks as a defense, there is always the
possibility that such applicant could ultimately win the
war in a civil action in which it can assert the family
of marks argument offensively. See Baroid, supra at 1053
("…[A] party unable to claim a family of marks defense
for priority [at the Board] nonetheless has an adequate
remedy in a court with appropriate jurisdiction.").
In regard to the second argument referenced above,
i.e., that prior adoption and use by applicant's
president and other shareholders in applicant of one or
more of various Hornblower marks precludes a finding of
priority in opposer in regard to the HORNBLOWER & WEEKS
mark, we consider this as an allusion to a possible
defense based on the Morehouse decision or on "tacking."
The Morehouse defense, however, is inapplicable, as
Opposition No. 110,043
15
applicant does not claim that any of the Hornblower marks
to which it has made reference have been registered.
Likewise, this is not a case where tacking is applicable,
since none of the referenced marks is the legal
equivalent of HORNBLOWER & WEEKS. See Van Dyne-Crotty,
supra, 17 USPQ2d at 1868.6
The only issue remaining for consideration is the
pleaded affirmative defense by which applicant asserts
that it is applicant which has superior rights in the
mark HORNBLOWER & WEEKS and that opposer's use of that
mark "constitutes a fraudulent trading on the reputation
of others."7 We consider applicant's request, set forth

6 Opposer argues that applicant cannot, in any event, rely on or
tack on marks which may have been used by applicant's president,
his relations, or other third parties, since applicant has not
established the requisite legal relationships or submitted
requisite affidavits or documentation of the use of these marks.
In this regard, we note that all we can derive from the
declaration of applicant's president is that he asserts he has
provided counsel and advice to investors under the Hornblower
name "in recent years" and that his brother, Paul S. Hornblower,
"has owned and operated seats on the New York Board of Trade
and/or the Chicago Mercantile Exchange, since 1981 to the
present, using his name P.S. Hornblower." We need not, however,
address these issues of fact because, as a matter of law, none
of the referenced marks is the legal equivalent of HORNBLOWER &
WEEKS.

7 The first of the three paragraphs applicant has denominated as
affirmative defenses, i.e., paragraph 11, which asserts that the
notice of opposition fails to state a claim upon which relief
can be granted, is not a true affirmative defense and shall not
be considered as such. In any event, it is clear that the
notice of opposition is a sufficient pleading. Likewise, the
second of these paragraphs, i.e., paragraph 12, does not by
itself state an affirmative defense, but is in effect a denial
Opposition No. 110,043
16
in its response to opposer's motion for summary judgment,
for relief granting registration to applicant based on
its involved application, as a cross-motion for summary
judgment in applicant's favor on its pleaded affirmative
defense.
The threshold question is whether applicant has
properly pleaded its affirmative defense. Federal Rule
8(c) specifies, inter alia, some "standard trademark
…defenses, such as estoppel, laches, fraud, license, and
res judicata, but it [allows] 'any other matter
constituting an avoidance or affirmative defense.'" See
3 J. Gilson Trademark Protection and Practice §8.12[1] at
8-249-250 (1999). Compare Section 33 of the Lanham Act,
15 U.S.C. §1115.
Although poorly articulated, we view applicant's
pleading as an attempt to set up an affirmative defense
that opposer has "unclean hands." Assertion of the
defense of unclean hands, though often based on
allegations of fraud, misrepresentation of source, or
violation of antitrust laws, "may result from any
imaginable immoral or illegal conduct." See 3 J. Gilson
Trademark Protection and Practice §8.12[13] (1999).

of opposer's allegation of prior use. We consider paragraphs 12
and 13 together as stating one affirmative defense.
Opposition No. 110,043
17
Where the conduct alleged to have resulted in unclean
hands relates to a plaintiff's acquisition, or attempt to
acquire, a registration, the unclean hands defense goes
only to the plaintiff's ability to rely on its
registration, not to its common law rights. See, e.g.,
Gilbert/Robinson Inc. v. Carrie Beverage-Missouri Inc.,
758 F.Supp. 512, 526, 19 USPQ2d 1481, 1489 (E.D. Mo.
1991) (Even though a jury found that plaintiff had
obtained its trademark registration fraudulently, the
court held, "[n]onetheless, plaintiff is still entitled
to protect its common law rights, and the doctrine of
unclean hands does not act as a bar to that right.").
When, however, the assertedly improper conduct relates to
the use of the mark, the defense may be considered even
in relation to rights acquired through use. See
Independent Grocers' Alliance Distributing Co. v. Zayre
Corporation, 149 USPQ 229 (TTAB 1966) (Though the Board
did not find for applicant on the issue, it considered
applicant's assertion that the opposer, relying not on a
registration but on rights acquired through use, had
unclean hands because it misused the statutory
registration symbol.)
In this case, we find that there is no genuine
dispute as to any material fact and that as a matter of
Opposition No. 110,043
18
law applicant cannot succeed on the unclean hands defense
that opposer is fraudulently trading on the reputation of
others, i.e., applicant and/or its shareholders. In this
regard, we note that opposer, in support of its motion
for summary judgment, submitted excerpts from the
discovery deposition of Ralph Hornblower, III,
applicant's president. During that deposition, Mr.
Hornblower produced a copy of a letter he had received
from the president of NASD Regulation, Inc. [NASDR],
which was submitted as an exhibit to the deposition.
The NASDR letter acknowledges Mr. Hornblower's
complaints "regarding use of the name 'Hornblower Weeks'
by a member of the National Association of Securities
Dealers, Inc."; reports that that member had changed its
name from "Baker Weeks" to "Hornblower Weeks";
acknowledges that members of the Hornblower family "were
formerly associated with a firm named 'Hornblower &
Weeks, Hemphill-Noyes[']"; that that firm, however,
changed its name in 1981 "and no NASD member firm used
the name 'Hornblower Weeks' or any variation thereof from
1981 to 1996"; that NASD rules do "not prohibit a firm
from selecting a name used by a former NASD member,
particularly when such name has been inactive on the NASD
rolls for more than 15 years"; and that nothing in Mr.
Opposition No. 110,043
19
Hornblower's correspondence suggests "that Hornblower
Weeks [opposer] is explicitly holding itself out as a
successor to your family's firm. As such, NASD
Regulation's Office of General Counsel does not believe
at this time that Hornblower Week's [sic] name and logo
create any regulatory issues that would warrant NASD
Regulation enforcement action." In addition, applicant's
president, in his discovery deposition, states that he
believed the HORNBLOWER & WEEKS mark to have been
abandoned by the securities firm that his family firm had
merged into, and further that "therefore, I thought it
was first come, first serve on Hornblower & Weeks…."
(Hornblower dep. p. 32).
Under these circumstances, there is no genuine
dispute that opposer adopted a mark that even applicant's
president believed had been abandoned and which was
viewed by applicant and relevant regulatory authorities
as available for adoption; and applicant has produced no
evidence, or raised any expectation that at trial it
could produce evidence, that opposer is using the adopted
HORNBLOWER & WEEKS mark to fraudulently trade on the
reputation of others. Cf. Kellogg Co. v. Pack'Em
Enterprises Inc., 14 USPQ2d 1545, 1550 (TTAB 1990)
(Summary judgment on opposition granted in favor of
Opposition No. 110,043
20
applicant because opposer, in responding to motion, did
not set out any evidence that it could produce at trial
which could reasonably be expected to cause Board to come
to a different conclusion.), aff’d 951 F.2d 330, 21
USPQ2d 1142 (Fed. Cir. 1991). In sum, we find that it is
opposer, not applicant, that is entitled to entry of
summary judgment in its favor on applicant's affirmative
defense.

Conclusion

In sum, there is no genuine issue of material fact
in regard to either opposer's priority or likelihood of
confusion and opposer is entitled, as a matter of law, to
judgment in its favor in the opposition. Further, there
is no genuine issue of material fact in regard to
applicant's affirmative defense of unclean hands, and
opposer is entitled to judgment in its favor on this
defense. It was applicant's duty, once opposer
demonstrated that it is entitled to judgment on its
Section 2(d) claim, to establish that applicant has a
valid affirmative defense and genuine issues of fact
exist, for resolution by trial, in regard to such
defense. Applicant has failed to do so.
Opposition No. 110,043
21
Accordingly, we enter summary judgment in favor of
opposer on both its Section 2(d) claim, insofar as it is
based on opposer's claim of prior use of the HORNBLOWER &
WEEKS mark, and on applicant's affirmative defense of
unclean hands.