Implus Footcare LLCv.Cozy Cabin Clothing LLC

Trademark Trial and Appeal Board

Jun 16, 2021

92070043 (T.T.A.B. Jun. 16, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 16, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Implus Footcare, LLC

v.

Cozy Cabin Clothing LLC
_____

Cancellation No. 92070043
_____

Bryce J. Maynard of Buchanan Ingersoll & Rooney, PC
for Implus Footcare LLC.

Cozy Cabin Clothing LLC, pro se.1

_____

Before Larkin, Coggins and Hudis,
Administrative Trademark Judges.

1 While a party may represent itself in a cancellation proceeding, Ethics Rule 11.14(e), 37
C.F.R. § 11.14(e), “it is strongly recommended that an attorney knowledgeable about
trademark law represent a party.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 114.01 (2021). The Board advised Respondent to secure the services
of an attorney familiar with Board proceedings in its Institution Notice and Trial Order, 2
TTABVUE 5-6, but Respondent elected to represent itself. Compliance with the rules
governing Board proceedings is required of all parties, whether or not they are represented
by counsel. McDermott v. S.F. Women’s Motorcycle Contingent, 81 USPQ2d 1212, 1212 n.2
(TTAB 2006), aff’d mem., 240 Fed. Appx. 865 (Fed. Cir. 2007). Accordingly, Respondent
assumed the responsibility and risk of representing itself in this proceeding. Hole in 1 Drinks,
Inc. v. Lajtay, 2020 USPQ2d 10020, at *1 (TTAB 2020).

Cancellation No. 92070043

- 2 -

Opinion by Hudis, Administrative Trademark Judge:
Cozy Cabin Clothing LLC (“Respondent”) is the record owner of a registration on
the Principal Register for the mark THE COZY CABIN BOUTIQUE (in standard
characters, “BOUTIQUE” disclaimed) for: “clothing, namely, t-shirts, blouses, tops,
bottoms, pants, skirts, shorts, dresses, rompers, leggings, hats, socks, and shoes” in
International Class 25.2
In its Amended Petition for Cancellation,3 Implus Footcare LLC (“Petitioner”)
seeks cancellation of Respondent’s registration on the following grounds:
 Respondent’s fraudulent allegations made in connection with the filing of the
underlying ‘545 Application, Trademark Act Section 14(3), 15 U.S.C. 1064(3);
 Respondent was not using THE COZY CABIN BOUTIQUE mark in commerce
when Respondent filed its underlying trademark application alleging use in
commerce, Trademark Act Section 1(a)(1), 15 U.S.C. § 1051(a)(1);
 Respondent abandoned any rights that it may have had in THE COZY CABIN
BOUTIQUE mark, Trademark Act Section 14(3), 15 U.S.C. 1064(3), because:
o Respondent was voluntarily dissolved in September of 2018. Therefore,
as Respondent is no longer an extant business, Respondent is no longer
using THE COZY CABIN BOUTIQUE mark. The fact that Respondent
voluntarily dissolved at its own request indicates that Respondent never
had any intention to resume use of the COZY CABIN BOUTIQUE mark;
o As separately alleged, to the extent that Respondent ever used THE
COZY CABIN BOUTIQUE mark in connection with the goods recited in
the ‘545 Application or any other goods or services, Respondent ceased

2 Registration No. 5165231 (the “‘231 Registration”) was issued on March 21, 2017. The
registration issued from Application Ser. No. 87122545 (the “‘545 Application”), which was
filed on August 1, 2016 pursuant to Trademark Act Section 1(a), 15 U.S.C. § 1051(a), based
on Respondent’s alleged first use anywhere and first use in commerce of the mark at least as
early as April 22, 2015.
3 6 TTABVUE. References to the pleadings, the evidence of record and the parties’ briefs refer
to the Board’s TTABVUE docket system. Coming before the designation TTABVUE is the
docket entry number; and coming after this designation are the page and paragraph
references, if applicable. Page references herein to the application record refer to the online
database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system.
Cancellation No. 92070043

- 3 -

any and all use of THE COZY CABIN BOUTIQUE mark with the intent
not to resume use; and
 Petitioner’s common law priority in the mark COZY CABIN and likelihood of
confusion. Trademark Act Section 2(d), 15 U.S.C. § 1052(d).
Petitioner specifically advised the Board it “is no longer prosecuting the fraud
claim.”4 Petitioner therefore waived this claim. See In re Google Tech. Holdings
LLC, 980 F.3d 858, 2020 USPQ2d 11465, at *3 (Fed. Cir. 2020) (“[W]aiver is the
intentional relinquishment or abandonment of a known right.”) (internal quotations
omitted). Petitioner also did not pursue in its trial brief the claim that THE COZY
CABIN BOUTIQUE mark was abandoned due to Respondent’s voluntary dissolution
in September 2018. Petitioner therefore forfeited this claim. See id. [“[F]orfeiture is
the failure to make the timely assertion of a right ….”); Alcatraz Media, Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner’s
pleaded descriptiveness and geographical descriptiveness claims not argued in brief
deemed forfeited), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014).
With the exception of the allegations noted below, Respondent denied the salient
allegations of the Amended Petition for Cancellation in its Answer.5 Respondent
admitted Petitioner’s following allegations:
1. Cozy Cabin Clothing LLC (“Registrant”), a New Jersey limited
liability company with an address at PO Box 308, Alloway, New Jersey,
08001, is the owner of record of U.S. Registration No. 5,165,231 for the
mark THE COZY CABIN BOUTIQUE in connection with “Clothing,
namely, t-shirts, blouses, tops, bottoms, pants, skirts, shorts, dresses,
rompers, leggings, hats, socks, and shoes” in International Class 25

4 Petitioner’s Trial Brief, 4 TTABVUE 12, n.3.
5 Answer to Amended Petition for Cancellation, 14 TTABVUE.
Cancellation No. 92070043

- 4 -

(hereinafter “Registrant’s Goods”). The mark in U.S. Registration No.
5,165,231 is hereinafter referred to as “Registrant’s Mark.”
2. Registrant filed its application for Registrant ’s Mark on August 1,
2016 based upon use in commerce, alleging a date of first use in
commerce of April 22, 2015.
3. In connection with the filing of the application, Registrant ’s CEO
Desiree Waterhouse signed and submitted a sworn Declaration dated
July 30, 2016 stating that “applicant is using the mark in commerce on
or in connection with the goods/services in the application.”
…
24. Registrant’s Mark THE COZY CABIN BOUTIQUE is highly similar
to Petitioner’s previously used COZY CABIN Mark in appearance,
pronunciation, and commercial impression.
25. The goods covered by Registrant’s U.S. Reg. No. 5,165,231 are very
closely related to the goods offered by Petitioner under Petitioner’s
COZY CABIN Mark, and are likely to be offered and sold to the same
types of consumers through the same channels of trade.
26. Registrant’s Mark so resembles Petitioner’s previously used COZY
CABIN Mark as to be likely, when applied to Registrant ’s Goods, to
cause confusion or mistake or to deceive by creating the erroneous
impression that Registrant’s Goods originate with, or are associated
with, Petitioner, or that Registrant’s Goods are authorized, endorsed or
sponsored by Petitioner.
…
28. Petitioner is the owner of Application Serial No. 87/268,529 for the
mark CABIN COZY and Application Serial No. 87/893,015 for the mark
COZY CABIN. These applications are hereinafter referred to collectively
as “Petitioner’s Applications.”
29. The USPTO has refused registration of both of Petitioner’s
Applications under Section 2(d) of the Trademark Act on the grounds
that the marks in Petitioner’s Applications are likely to be confused with
Registrant’s previously registered mark THE COZY CABIN
BOUTIQUE in U.S. Reg. No. 5,165,231.6
The case is fully briefed. Respondent’s THE COZY CABIN BOUTIQUE
registration is entitled to a presumption of validity. Trademark Act Section 7(b), 15

6 Amended Petition for Cancellation, 6 TTABVUE 10-11, 13-14 ¶¶ 1-3, 24-26, 28-29; Answer
to Amended Petition for Cancellation, 14 TTABVUE 3-4, 9-11, ¶¶ 1-3, 24-26, 28-29.
Cancellation No. 92070043

- 5 -

U.S.C. § 1057(b). Petitioner bears the burden of rebutting that presumption by
a preponderance of the evidence. See West Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d
1122, 31 USPQ2d 1660, 1662 (Fed. Cir. 1994). Having considered the evidentiary
record, the parties’ arguments and applicable authorities, as explained below, we find
Petitioner has carried its burden of showing there is no admissible evidence that
Respondent was using THE COZY CABIN BOUTIQUE mark in commerce on or
before the date that Respondent filed its application alleging use in commerce. We
therefore grant the Petition for Cancellation on this ground. We need not reach
Petitioner’s other claims for cancellation. See Azeka Bldg. Corp. v. Azeka, 122
USPQ2d 1477, 1478 (TTAB 2017) (Board has “discretion to decide only those claims
necessary to enter judgment and dispose of the case”) (quoting Multisorb Tech., Inc.
v. Pactive Corp., 109 USPQ2d 1170, 1171, 72 (TTAB 2013)).
I. The Evidentiary Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Respondent’s involved registration. In addition, the
parties introduced the following evidence:
A. Petitioner’s Evidence
 Petitioner’s Notice of Reliance (“Pet. NoR”) with exhibits (31 TTABVUE).
 Petitioner’s Testimony Declaration of Vince Kuehler, Petitioner’s Vice
President and General Manager of Hosiery (“Kuehler Decl.”) with exhibits (32
TTABVUE).
Cancellation No. 92070043

- 6 -

B. Respondent’s Evidence
 Respondent’s Testimony Declaration of Desiree Waterhouse, sole owner of
Cozy Cabin Boutique LLC (“Waterhouse Decl.”) with exhibits (34 TTABVUE).7
C. Petitioner’s Rebuttal Evidence
 Transcript from Petitioner’s Cross-Examination Testimony Deposition of
Desiree Waterhouse (“Waterhouse CX Depo.”) (40 TTABVUE).
 Petitioner’s Rebuttal Testimony Declaration of Vince Kuehler (“Kuehler Reb.
Decl.”) with exhibits (41 TTABVUE).
D. Respondent’s “Further” Evidence
 Respondent’s “Further” Testimony Declarations of Desiree Waterhouse
(“Further Waterhouse Decls.”) with exhibits (43-45 TTABVUE).
II. Petitioner’s Evidentiary Motion and Objections
Before proceeding to the merits of the cancellation, we address Petitioner’s
evidentiary motion and other objections to Respondent’s evidence .
A. Petitioner’s Motion to Strike
Pursuant to the parties’ motions to extend dates and the Board’s various trial
orders,8 Petitioner’s 30-day testimony period was April 29 – May 29, 2020;
Respondent’s 30-day testimony period was June 28 – July 28, 2020; and Respondent’s
15-day rebuttal period was December 7 – 22, 2020. Thereafter, Petitioner timely filed
its trial brief on January 21, 2021,9 containing, inter alia, critiques of and objections

7 In September 2018, “for personal reasons,” Mrs. Waterhouse dissolved Cozy Cabin Clothing
Limited Liability Company (Certificate of Dissolution, Pet. NoR, 31 TTABVUE 87-88), and
continued her business in the name of a newly formed company, Cozy Cabin Boutique LLC
(Business Registration Certificates of both entities, Waterhouse Decl., 34 TTABVUE 9).
Waterhouse CX Depo., 40 TTABVUE 6-8.
8 See 29, 36-39 TTABVUE.
9 Petitioner’s Trial Brief, 42 TTABVUE.
Cancellation No. 92070043

- 7 -

to Respondent’s evidence. On February 16 and 18, 2021, Respondent filed Mrs.
Waterhouse’s “Further” Testimony Declarations.10
On March 8, 2021, Petitioner moved to strike Mrs. Waterhouse’s Further
Testimony Declarations as untimely.11 According to Petitioner, “Registrant has
sought to remedy the failings of its original testimony declaration by having certain
documents ‘observed and affirmed by a notary for their authenticity.’ Registrant has
also attempted to introduce brand new documents that were not included in the
original [Waterhouse] July 9[, 2020] testimony declaration ….”12
We find Mrs. Waterhouse’s Further Testimony Declarations filed in February
2021 were untimely. Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a) (“No testimony
shall be taken or evidence presented except during the times assigned, unless by
stipulation of the parties approved by the Board, or upon motion granted by the
Board, or by order of the Board.”); see also Harjo v. Pro-Football, Inc., 45 USPQ2d
1789, 1790 (TTAB 1998) (granting motion to strike testimony declaration filed five
months after close of petitioner’s testimony period).
Petitioner did not stipulate to the admission of Mrs. Waterhouse’s Further
Testimony Declarations, nor did Respondent move to allow their entry.13
Respondent’s reasons for the late filing of Mrs. Waterhouse’s Further Testimony
Declarations are:

10 Further Waterhouse Decls., 43-45 TTABVUE.
11 Petitioner’s Motion to Strike, 47 TTABVUE.
12 Id. at 2.
13 Id. at 3.
Cancellation No. 92070043

- 8 -

It was my understanding I [Desiree Waterhouse] had up until my reply
brief to input evidence. I ask the court’s leniency in their decision to
allow my evidence to stand as I have gone about these legal documents
on my own as a layman. I … am doing all this on my own and
haphazardly ….14

We find allowing Mrs. Waterhouse’s Further Testimony Declarations into
evidence would be prejudicial to Petitioner. By the time Respondent filed the Further
Declarations, Petitioner’s rebuttal testimony period had long since closed and
Petitioner had already filed its trial brief. Thus, Petitioner did not have any
opportunity to submit evidence in response to the Further Declarations, to
cross-examine Mrs. Waterhouse regarding the statements in the Further
Declarations, or to address them in Petitioner’s trial brief. Were the Board to re-open
Petitioner’s rebuttal testimony period and allow Petitioner to submit a revised trial
brief, this would needlessly delay the final resolution of this proceeding. See Harjo,
45 USPQ2d at 1790 (“We agree with respondent that it is time to move this case
forward for a final determination on the merits.”).
The Board’s rules are clear and do not allow Respondent a further opportunity to
submit evidence merely because the Board might find Respondent’s originally
submitted evidence deficient. See M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda
King Ltd., 2019 USPQ2d 149090, at *2 n.13 (TTAB 2019) (refusing to consider
“substitute declaration” that was filed outside of opposer’s testimony period and
attempted to remedy flaws in original declaration). Petitioner’s motion to strike Mrs.

14 Respondent’s Opposition to Petitioner’s Motion to Strike, 50 TTABVUE 3.
Cancellation No. 92070043

- 9 -

Waterhouse’s Further Testimony Declarations is granted, and we give these
declarations as well as their attached exhibits no further consideration.
B. Petitioner’s Evidentiary Objections
In its trial brief, Petitioner objects to those exhibits attached to Mrs. Waterhouse’s
Testimony Declaration comprising Internet web pages, because these pages do not
include the source URL or capture date on them.15 We overrule this objection for a
number of reasons. First, most (but not all) of the Internet materials attached to Mrs.
Waterhouse’s Testimony Declaration do have the URL and capture date on them.
Second, as to the remainder of the Internet materials not having this information,
the requirement for the URL and capture date is provided in Trademark Rule
2.122(e)(2), 37 C.F.R. § 2.122(e)(2), which by its very terms applies to Internet
materials made of record by Notice of Reliance, not by testimony declaration. Id.
(“Internet materials may be admitted into evidence under a notice of reliance in
accordance with paragraph (g) of this section, in the same manner as a printed
publication in general circulation, so long as the date the internet materials were
accessed and their source (e.g., URL) are provided.”). Third, that evidentiary
materials were the submitted not in compliance with the Board’s technical rules is in
the nature of a procedural objection – which Petitioner did not timely raise by way of
a motion to strike. See Hornby v. TJX Cos., Inc., 87 USPQ2d 1411, 1417 (TTAB 2008)
(objection regarding authentication of testimonial deposition exhibits made in brief

15 Petitioner’s Trial Brief, 42 TTABVUE 7.
Cancellation No. 92070043

- 10 -

but not in testimonial deposition itself overruled – offering party did not have
opportunity to provide authentication testimony in testimonial deposition).
Petitioner also objects to a number of other exhibits attached to Mrs. Waterhouse’s
Testimony Declaration on grounds of lack of authentication, Fed. R. Evid. § 901 –
consisting of an order for clothing sew-on tags, a photograph of a clothing item
bearing an internal tag, an inventory list, product sales summaries, and a photograph
of a pop-up tent at which Petitioner had sold clothing items.16 We overrule these
objections for two reasons. First, Mrs. Waterhouse did authenticate a majority of
these items in her testimony declaration17 and during her cross-examination
testimony.18 Second, that Respondent purportedly did not authenticate one or more
of these exhibits is once again a procedural objection – which again Petitioner did not
timely raise by way of a motion to strike. Hornby v. TJX Cos., 87 USPQ2d at 1417.
III. The Parties
Petitioner asserts it is a manufacturer of athletic, fitness, and outdoor
accessories.19 Petitioner claims it has continuously used the mark COZY CABIN in
connection with socks since October 2010.20 Petitioner primarily sells its socks in
connection with the COZY CABIN mark through Dick’s Sporting Goods retail stores
under the FIELD & STREAM brand, and elsewhere under the YAKTRAX brand.21

16 Waterhouse Decl., 34 TTABVUE 10-11, 14-17.
17 Id. at 4, ¶ 7.
18 Waterhouse CX Depo., 40 TTABVUE 12-24, 38-40.
19 Petitioner’s Trial Brief, 42 TTABVUE 8.
20 Kuehler Decl., 32 TTABVUE 2, ¶ 4.
21 Id. at 2, ¶ 5.
Cancellation No. 92070043

- 11 -

Respondent, operating as Cozy Cabin Boutique LLC,22 conducts business as the
sole proprietorship of Mrs. Waterhouse.23 Respondent sells women’s apparel
including shirts, pants, leggings, hats, socks, shoes, scarves and accessories.24
Respondent claims it has continuously used the mark THE COZY CABIN
BOUTIQUE in connection with wearing apparel since April 2015.25 Respondent
promotes and sells its clothing products at local festivals and markets, and online.26
IV. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is a threshold issue that must be proven
by the plaintiff in every inter partes case. Empresa Cubana Del Tabaco v. Gen. Cigar
Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement
to a statutory cause of action under Trademark Act Section 14, 15 U.S.C., § 1064, a
plaintiff must demonstrate “an interest falling within the zone of interests protected
by the statute and … proximate causation.” Corcamore, LLC v. SFM, LLC, 978 F.3d
1298, 2020 USPQ2d 11277, at *4 (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, 2067-70 (2014)).27 Stated another way, a plaintiff is entitled to a

22 See note 7, supra.
23 Waterhouse Decl., 34 TTABVUE 3, ¶¶ 1-3; Waterhouse CX Depo., 40 TTABVUE 6-8.
24 Int. Ans. No. 1, Pet. NoR, 31 TTABVUE 47.
25 Int. Ans. Nos. 8-9, 19, Pet. NoR, 31 TTABVUE 50-51, 56-57.
26 Int. Ans. No. 12-15, Pet. NoR, 31 TTABVUE 52-54; Waterhouse CX Depo., 40 TTABVUE
19-20, 22, 24-34.
27 Our decisions have previously analyzed the requirements of Trademark Act Sections 13
and 14, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this inquiry as
entitlement to a statutory cause of action. Despite the change in nomenclature, our prior
Cancellation No. 92070043

- 12 -

statutory cause of action by demonstrating a real interest in the proceeding and a
reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020); see also Empresa
Cubana, 111 USPQ2d at 1062. According to the U.S. Court of Appeals for the Federal
Circuit (“Federal Circuit”), there is “no meaningful, substantive difference between
the analytical frameworks expressed in Lexmark and Empresa Cubana.” Corcamore,
2020 USPQ2d 11277 at *4. Thus, “a party that demonstrates a real interest in
cancelling a trademark under [Trademark Act Section 14, 15 U.S.C.] § 1064 has
demonstrated an interest falling within the zone of interests protected by [the
Trademark Act] .… Similarly, a party that demonstrates a reasonable belief of
damage by the registration of a trademark demonstrates proximate causation within
the context of § 1064.” Corcamore, 2020 USPQ2d 11277 at *7.
“A petitioner may demonstrate a real interest and reasonable belief of damage
where the petitioner has filed a trademark application that is refused registration
based on a likelihood of confusion with the mark subject to cancellation.” Australian
Therapeutic, 2020 USPQ2d 10837, at *4. Consistent with the allegations made in its
Amended Petition for Cancellation, which Respondent admitted,28 Petitioner made of
record the TSDR status of, and copies of the pertinent Office Actions for, its
applications to register CABIN COZY for “hats; headbands; gloves” and COZY

decisions and those of the Federal Circuit interpreting Trademark Act Sections 13 and 14
remain applicable.
28 Amended Petition for Cancellation, 6 TTABVUE 14, ¶¶ 28-29; Answer to Amended Petition
for Cancellation, 14 TTABVUE 11, ¶¶ 28-29.
Cancellation No. 92070043

- 13 -

CABIN for “hats, mittens, gloves, headbands, socks, slippers,” showing that each
mark was refused registration on the ground of likelihood of confusion with
Respondent’s registered THE COZY CABIN BOUTIQUE mark.29
Petitioner therefore has adequately demonstrated its entitlement to bring and
maintain its Trademark Act Section 2(d) claim. Since Petitioner has proven its
entitlement to assert at least one properly pleaded ground, it has established such
entitlement for any other legally sufficient ground. Int’l Dairy Foods Assn. v.
Interprofession du Gruyère, 2020 USPQ2d 10892, at *9 (TTAB 2020) (citing Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28
(Fed. Cir. 2012) (“[O]nce an opposer meets the requirements for standing, it can rely
on any of the statutory grounds for opposition set forth in 15 U.S.C. § 1052.”)).
V. Whether Respondent was using the Mark THE COZY CABIN
BOUTIQUE in Commerce as of the Filing Date of its Underlying Use-
Based Trademark Application
Trademark Act Section 1(a)(1), 15 U.S.C. § 1051(a)(1), provides that “[t]he owner
of a trademark used in commerce may request registration of its trademark on the
principal register … by paying the prescribed fee and filing in the Patent and
Trademark Office an application and a verified statement …, and such number of
specimens … of the mark as used as may be required ….” Id. In the case of a use-based
application for registration, if it is shown that the applicant made no provable use in
commerce of its mark prior to the filing date of its trademark application, a plaintiff

29 TSDR status and Office Actions refusing registration as to Application Serial Nos.
87268529 and 87893015, Pet. NoR 31 TTABVUE 6-44.
Cancellation No. 92070043

- 14 -

can seek to cancel the resulting registration on this ground. ShutEmDown Sports,
Inc. v. Lacy, 102 USPQ2d 1036, 1045 (TTAB 2012) (“Because we find that
respondent’s allegation of use of his mark in commerce for the identified goods, at the
time of filing of his application was false, we hold that the application was void ab
initio, and we need not decide the fraud claim.”); see also Tao Licensing, LLC v.
Bender Consulting Ltd., 125 USPQ2d 1043, 1064 (TTAB 2017) (explaining that
nonuse as of the statement of use deadline provides an “independent basis to cancel
Respondent’s registration.”).
A “trademark” is “any word, name, symbol, or device, or any combination thereof
… used by a person … to identify and distinguish his or her goods, including a unique
product, from those manufactured or sold by others and to indicate the source of the
goods, even if that source is unknown.” Trademark Act Section 45, 15 U.S.C. § 1127.
A trademark is “use[d] in commerce … on goods when … it is placed in any manner
on the goods or their containers or the displays associated therewith or on the tags or
labels affixed thereto, or if the nature of the goods makes such placement
impracticable, then on documents associated with the goods or their sale, and … the
goods are sold or transported in commerce.” Id.
In the brick-and-mortar world, an acceptable “display [of a trademark] associated
with the goods must be in such association with the goods that a purchaser viewing
the display would directly associate the mark with the goods,” In re Ancha Elecs. Inc.,
1 USPQ2d 1318, 1319 (TTAB 1986) (citing In re Griffin Pollution Control Corp., 517
F.2d 1356, 186 USPQ 166, 167 (CCPA 1975)), at the point of sale. Id. For a web page
Cancellation No. 92070043

- 15 -

to constitute an acceptable display associated with the goods online, the web page
must 1) contain a picture or description of the goods; 2) show the mark in association
with the goods; and iii) provide a means for ordering the goods. In re Sones, 590 F.3d
1282, 93 USPQ2d 1118, 1123-24 (Fed. Cir. 2009).
Respondent’s underlying ‘545 Application that matured into its ‘231 Registration
for THE COZY CABIN BOUTIQUE trademark was filed on August 1, 2016. Based
on the above-noted authorities, we must determine whether Petitioner has shown
that Respondent did not use THE COZY CABIN BOUTIQUE mark in commerce in
connection with the clothing items identified in the registration on or before this date.
We start with the file history of the ‘231 Registration. The specimen Respondent
filed with the application consists of a web page showing the full mark THE COZY
CABIN BOUTIQUE, a picture of a model wearing, and a verbal description of, a
thermal grey flouncy shirt, the price of the item, and an “add to cart” button for the
purchase of the item.30 The specimen constitutes a sufficient display associated with
the goods under In re Sones, 93 USPQ2d at 1123-24.
Unfortunately, we cannot consider this specimen as proof of Respondent’s use of
its mark in commerce as of Respondent’s application filing date because it was not
submitted into evidence.
The file … of each registration against which a petition … for
cancellation is filed forms part of the record of the proceeding without
any action by the parties and reference may be made to the file for any
relevant and competent purpose in accordance with paragraph (b)(2) of
this section.

30 ‘545 Application filed August 1, 2016 at TSDR 3.
Cancellation No. 92070043

- 16 -

Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). However,

The allegation in an application for registration, or in a registration, of
a date of use is not evidence on behalf of the … registrant; a date of use
of a mark must be established by competent evidence. Specimens in
the file of an application for registration, or in the file of a
registration, are not evidence on behalf of the … registrant
unless identified and introduced in evidence as exhibits during
the period for the taking of testimony. Statements made in an
affidavit or declaration in the file of an application for registration, or in
the file of a registration, are not testimony on behalf of the … registrant.
Establishing the truth of these or any other matters asserted in the files
of these applications and registrations shall be governed by the Federal
Rules of Evidence, the relevant provisions of the Federal Rules of Civil
Procedure, the relevant provisions of Title 28 of the United States Code,
and the provisions of this part.

Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2) (emphasis added); see also Osage
Oil & Transp., Inc. v. Standard Oil Co., 226 USPQ 905, 906 n.4 (TTAB 1985)
(statements and materials in registration file bearing on respondent’s dates of use
not evidence on behalf of respondent unless properly introduced); Eikonix Corp. v.
CGR Med. Corp., 209 USPQ 607, 613 n.7 (TTAB 1981) (specimens in application not
evidence on behalf of respondent). Therefore, we cannot consider the specimen in the
‘231 Registration file history as evidence that Respondent used THE COZY CABIN
BOUTIQUE mark in connection with the clothing items identified in the registration
on or before August 1, 2016. We now turn to the evidence that the parties did properly
make of record.
Respondent’s answers to Petitioner’s interrogatories31 state:

31 Respondent’s Answers to Petitioner’s First Set of Interrogatories, Pet. NoR, 31 TTABVUE
47-51, 56.

Cancellation No. 92070043

- 17 -

INTERROGATORY NO. 1:
Identify all products and/or services on or in connection with which
Registrant has used or is using Registrant’s Mark in commerce,
including any goods and/or services that are not listed in U.S. Reg. No.
5,165,231.
Answer: I sell women’s apparel including shirts, pants, leggings, hats,
socks, shoes, scarves and accessories.
INTERROGATORY NO. 2:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, explain exactly how Registrant uses Registrant’s
Mark on or in connection with the product.
Answer: For all products, at festivals and online, some of my items are
sold as “Cozy Cabin” branded clothing with my tags on them. These
items are handmade or bought as brandless wholesale clothing that I
sew my tags into. My business name is “Cozy Cabin Clothing” registered
in the state of NJ. The name on tags is “Cozy Cabin” and the name on
my external tags is “Cozy Cabin Boutique”. No claim can legally be made
to the exclusive rights of “Boutique” so the focus of my trademark is
“Cozy Cabin”.
INTERROGATORY NO. 3:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, state whether Registrant uses Registrant’s Mark
on the product itself.
Answer: For all products but mainly sweaters, scarves, socks and hats,
near approx. 300 items have been sold with my personal brand
trademark of “Cozy Cabin”. I also sell other brands but “Cozy Cabin” is
my focus.
INTERROGATORY NO. 4:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, state whether Registrant uses Registrant’s Mark
on tags attached to the product.
Answer: For all products, the external tag that is attached to it says
“Cozy Cabin Boutique”.
INTERROGATORY NO. 5:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, state whether Registrant uses Registrant’s Mark
on labels attached to the product.
Cancellation No. 92070043

- 18 -

Answer: For all products, but mainly sweaters, s[c]arves, socks and hats,
labels are attached to clothing with the mark “Cozy Cabin”. I sell some
other brands but the focus of my business[s] at festivals is on my own
branded material.
INTERROGATORY NO. 6:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, state whether Registrant uses Registrant’s Mark
on packaging for the product.
Answer: For all products, they don’t have any packaging aside from a
semi sealed plastic bag for safe shipping and at festivals they are bought
off the racks.
INTERROGATORY NO. 7:
For each of the products identified in response to Petitioner’s
Interrogatory No. 1, state whether Registrant uses Registrant’s Mark
on point of sale displays associated with the product.
Answer: For all products, this is impossible due to the constraints of the
platforms I use to sell my clothing via festivals in person or using
[P]oshmark. On my previous website on [S]hopify, when I applied for my
trademark, yes “Cozy Cabin” items were identified in all point of sales.
INTERROGATORY NO. 8:
For each of the products identified in response to Petitioner’s
Interrogatory No. l, state:
i) the date on which Registrant first used Registrant’s Mark in
commerce in connection with the product;
Answer: The date I first used my mark was 4/22/2015
ii) the date of Registrant’s most recent sale of the product;
Answer: The date of my most recent sale was 2/27/2019
iii) the total number of units of the product sold by Registrant; and
iv) Registrant’s total sales of the product in dollars.
Answer: The total number of units sold “Cozy cabin” branded material
as well as other brands is approx. 608 with approx. total sales of $12,200.
Profit sales are approx. $6,100.
INTERROGATORY NO. 9:
State all facts and identify all documents supporting Registrant’s
statement in the application filed on August 1, 2016 stating that
Registrant’s Mark “was first used by the applicant or the applicant’s
related company or licensee or predecessor in interest at least as early
Cancellation No. 92070043

- 19 -

as 04/22/2015, and first used in commerce at least as early as 4/22/2016.”
[sic] [the first use in commerce date in the application is 4/22/2015]
Answer: I have my “Cozy Cabin Boutique” trademark document
[registration] stating my first use was 4/22/2015 and my first pieces were
sold to my immediate family, my mother and mother in law for
meaningful reasons. I sold “Cozy Cabin” pieces that year through my
website as well as throughout 2016 starting January 14th of 2016 which
is listed on my [S]hopify invoices. Shopify was my old website platform
but I have since moved onto Godaddy after they introduced a retail
clothing friendly platform. Website is still under con[s]truction.
…
INTERROGATORY NO. 17:
Explain the meaning of the mark THE COZY CABIN BOUTIQUE as
used by Registrant.
Answer: As I explained above, the name Cozy Cabin Boutique came
about organically because I live in a cabin myself. My boutique is “Cozy
Cabin Boutique”, my business name in NJ is “Cozy Cabin Clothing”. I
chose Cozy Cabin Boutique as my trademark name because when I
spoke to my lawyer over the phone and told them my business name,
wanting to have a “Cozy Cabin” brand, they informed me that there can
be no exclusive rights to the phrase “boutique” so it was really neither
here nor there to add it onto the end. In this way, I could use “Cozy
Cabin” on my labels or in the future I could use “Cozy Cabin Boutique”
if I changed my mind to be a more identifiable brand for people to
research when they looked at tags. If you look up “cozy cabin” you get
many search results but “cozy cabin boutique” would typically produce
my website more readily. I chose to err on the side of going with the
longer version in case I changed my mind about the labels. The intention
of my trademark from day one was for my own clothing line and
aspirations to be included in the larger retail market.
INTERROGATORY NO. 18:
State all facts and identify all documents supporting Registrant’s denial
of Petitioner’s allegations in Paragraph 4 of Petitioner’s Petition for
Cancellation. [Paragraph 4 states: “Registrant was not using the mark
THE COZY CABIN BOUTIQUE in commerce in connection with
‘Clothing, namely, t-shirts, blouses, tops, bottoms, pants, skirts, shorts,
dresses, rompers, leggings, hats, socks, and shoes’ at the time Registrant
filed the application, and in fact had never used the mark on or in
connection with said goods. Instead, to the extent Registrant was using
the mark at all, Registrant was using the mark in connection with on
line retail services.”]
Cancellation No. 92070043

- 20 -

Answer: I have tax records, pictures, website registration, trademark
document, social media accounts and online website exhibiting my
presence online as well as in person at festivals.
In Mrs. Waterhouse’s Declaration submitted by Petitioner,32 she states:
4. I applied for the trademark ‘The Cozy Cabin Boutique’ for the sale of
‘clothing, namely, t-shirts, blouses, tops, bottoms, pants, skirts, shorts,
dresses, rompers, leggings, hats, socks and shoes.’ With my first use on
4/22/2015 and in commerce 4/22/2015. I was granted my trademark
successfully by Robin Mittler of the Patent and Trademark Office under
serial no. 87-122.545, filed 08/01/2016. There is a note on the document
[registration] that no claim is made to the exclusive right to use
‘boutique’.
…
7. For exhibit A [to my Declaration], I have attached proof of my
continued use of my trademark via my USPTO document [registration],
current business license, tags, invoices for [F]acebook advertisements,
invoices of sales over the years past to present, picture of my shop set
up at local festivals and tax documents first to most recent, as well as
photographs of current social media, website and [P]oshmark app.
Attached to Mrs. Waterhouse’s Declaration as Exhibit A33 are the following items:
 A copy of the ‘231 Registration for THE COZY CABIN BOUTIQUE mark;
 New Jersey business registration certificates for Cozy Cabin Clothing Limited
Liability Co (issued February 24, 2015) and Cozy Cabin Boutique LLC (issued
February 15, 2019);
 An online order dated March 11, 2015 for 1,000 “wholesale customized clothing
garment … washable woven … brand name labels” placed with the company
named HongLeeDa;
 A “Cozy Cabin” garment label sewn onto sweater material;
 Printer’s proofs from a company named Viking Labelling of a hang tag, which
says on the front: “The Cozy Cabin,” and on the back:
“www.cozycabinboutique.com,” “facebook.com/cozycabinboutique,” and
“instagram.com/cozycabinboutique”;
 Invoice entries for Facebook ads; items in Respondent’s inventory in 2017;
 Customer orders fulfilled in 2015, 2016 and at other undated times;

32 Waterhouse Decl., 34 TTABVUE 3-4
33 Waterhouse Decl., 34 TTABVUE 7-23.
Cancellation No. 92070043

- 21 -

 Respondent’s 2016-2019 merchandise sales;
 A photograph of a tent-covered vendor’s booth bearing the sign COZY CABIN
CLOTHING, and a smaller chalk-board sign that says COZY CABIN
BOUTIQUE;
 A completed 2015 IRS Schedule C (Form 1040) form for Desiree M. Waterhouse
as proprietor under the business name “Cozy Cabin Clothing LLC,” and the
same form completed in 2019 under the business name “Cozy Cabin Boutique”;
 A web page from the online inventory and sales site Poshmark, dated July 9,
2020, bearing the banner headings THE COZY CABIN BOUTIQUE and THE
COZY CABIN;
 A web page from the website cozycabinboutique.com, dated July 9, 2020,
bearing the banner heading THE COZY CABIN BOUTIQUE; and
 A Facebook web page, dated July 9, 2020, bearing the banner heading THE
COZY CABIN.
Additionally, attached to Petitioner’s Notice of Reliance34 are the following items:
 A web page from the website cozycabinboutique.com, dated May 29, 2020,
bearing the banner heading THE COZY CABIN BOUTIQUE (Exh. 6);
 A web page from the online inventory and sales site Poshmark, dated May 29,
2020, bearing the banner headings THE COZY CABIN BOUTIQUE and THE
COZY CABIN (Exh. 7);
 Another web page from the Poshmark site, dated May 29, 2020, bearing the
moniker THE COZY CABIN throughout the page and the seller names THE
COZY CABIN BOUTIQUE and THE COZY CABIN at the bottom (Exh. 8);
 A further web page from the Poshmark site, dated May 29, 2020, bearing the
seller names THE COZY CABIN BOUTIQUE and THE COZY CABIN at the
bottom (Exh. 9); and
 A Facebook web page, dated May 29, 2020, bearing the banner heading THE
COZY CABIN, the name THE COZY CABIN throughout the page, the social
media user tag @COZYCABINBOUTIQUE at the top of the page, and the
website address “www.cozycabinboutique.com” on the lower right-hand side
(Exh. 10).
Of the above-listed items provided with Mrs. Waterhouse’s Declaration and
Petitioner’s Notice of Reliance, the only ones relevant to our decision are those that:

34 Pet. NoR, 31 TTABVUE 59-86.
Cancellation No. 92070043

- 22 -

1) bear the mark THE COZY CABIN BOUTIQUE used in a trademark (source
identifying) manner, and 2) according to admissible evidence, were visible to the
public on or before August 1, 2016. These requirements immediately dispense from
consideration Respondent’s trademark registration, business registration
certificates, label orders, Facebook ad invoices, inventory lists, sales fulfillments,
COZY CABIN garment label, IRS Schedule C forms, and the version of the Facebook
page Petitioner made of record.
In attempting to dispute Petitioner’s charge that Respondent had not used its
mark THE COZY CABIN BOUTIQUE on or before the critical date, Respondent relies
on its (admissible) declaration testimony and related exhibits – yet attempts to
discount Mrs. Waterhouse’s cross-examination testimony. Oral testimony, even of a
single witness, if “sufficiently probative,” may be enough to prove trademark
usage. See Powermatics, Inc. v. Glebe Roofing Prods. Co., 341 F.2d 127, 144 USPQ
430, 432 (CCPA 1965); 4U Co. of Am., Inc. v. Naas Foods, Inc., 175 USPQ 251, 253
(TTAB 1972). However, the testimony should carry with it “conviction of its accuracy
and applicability.” B.R. Baker Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ 232, 236
(CCPA 1945); see also Nat’l Bank Book Co. v. Leather Crafted Prods., Inc., 218 USPQ
827, 828 (TTAB 1983) (oral testimony may be sufficient to prove the use of a party’s
mark when it is based on personal knowledge, it is clear and convincing, and it has
not be contradicted); Liqwacon Corp. v. Browning-Ferris Indus., Inc., 203 USPQ 305,
316 (TTAB 1979) (oral testimony may be sufficient to establish both initial use and
continuous use when the testimony is proffered by a witness with knowledge of the
Cancellation No. 92070043

- 23 -

facts and the testimony is clear, convincing, consistent, and sufficiently
circumstantial to convince the Board of its probative value); GAF Corp. v. Anatox
Analytical Servs., Inc., 192 USPQ 576, 577 (TTAB 1976) (“[U]se of a mark may be
established by the oral testimony of a single witness where such testimony is clear,
consistent, convincing, circumstantial and uncontradicted.”).
Respondent’s hang tag printer’s proofs, and Mrs. Waterhouse’s explanations of
same, are problematic for several reasons. To begin, as printer’s proofs they do not
demonstrate the required use of the mark in commerce by Respondent, see
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1301.04(a) (2018), and
Mrs. Waterhouse’s Testimony Declaration does not provide any further context
regarding Respondent’s use of the actual hang tags in the marketplace. Mrs.
Waterhouse testified on cross-examination that the actual hang tags are used on the
garments shown in the photograph of Petitioner’s tent-covered vendor’s booth,35 but
even with the most extreme magnification of the photo the mark cannot be seen on
any visible hang tag.36
Further, the mark shown on the front of the hang tag printer’s proofs is THE
COZY CABIN, not THE COZY CABIN BOUTIQUE. The Facebook and Instagram
social media URLs “facebook.com/cozycabinboutique” and “instagram.com/
cozycabinboutique” on the back of the hang tag printer’s proofs do not demonstrate
use of the registered mark THE COZY CABIN BOUTIQUE standing alone, and

35 Waterhouse CX Depo., 40 TTABVUE 21-22, 38-39.
36 Waterhouse Decl., 34 TTABVUE 17.
Cancellation No. 92070043

- 24 -

moreover do not show use of Respondent’s registered mark as a designation of source.
See Interactive Prods. Corp. v. a2z Mobile Office Sols., Inc., 326 F.3d 687, 691, 66
USPQ2d 1321, 1327-28 (6th Cir. 2003) (finding that the post-domain path of a URL
does not typically signify source). Equally, the URL for Respondent’s website,
“www.cozycabinboutique.com,” on the back of the hang tag printer’s proofs does not
function as a trademark for Respondent’s clothing items. See In re Roberts, 87
USPQ2d 1474, 1479 (TTAB 2008) (finding that “irestmycase” did not function as a
mark for legal services, where it is used only as part of an address by means of which
one may reach applicant’s website, or along with applicant’s other contact
information on letterhead) (citing In re Eilberg, 49 USPQ2d 1955, 1957 (TTAB 1998)).
So even if Respondent did show use of the actual hang tag in the marketplace, none
of the textual matter on the hang tag qualifies as trademark use of the mark THE
COZY CABIN BOUTIQUE.
Respondent’s photograph of a tent-covered vendor’s booth bearing the sign COZY
CABIN CLOTHING, and a smaller chalk-board sign that says COZY CABIN
BOUTIQUE,37 has its own set of problems. COZY CABIN CLOTHING, obviously, is
not the same mark as Respondent’s registered mark THE COZY CABIN BOUTIQUE.
Even if we were to credit Respondent’s use of COZY CABIN BOUTIQUE (leaving off
the article “THE” from the registered mark), Respondent’s use of the truncated mark
on the chalk-board sign is more in the nature of service mark use for retail store
services featuring clothing rather than as a trademark for the clothing items

37 Photograph, Waterhouse Decl., 34 TTABVUE 17.
Cancellation No. 92070043

- 25 -

themselves. See Trademark Act Section 45, 15 U.S.C. § 1127 (defining “trademark”
and “service mark” usage). This is especially true considering, as Mrs. Waterhouse
testified on cross-examination, that 80-85% of the merchandise Respondent sells is
procured from wholesalers, which already have their product name tags sewn into
them.38 Mrs. Waterhouse also testified that she did not know when the photograph
was taken,39 such that it cannot support use of THE COZY CABIN BOUTIQUE mark
on or before August 1, 2016.
Finally, none of the web page captures from Facebook, Poshmark or Respondent’s
“www.cozycabinboutique.com” website are evidence of use of the mark THE COZY
CABIN BOUTIQUE on or before August 1, 2016. The capture dates of all of this
website material are in 2020, and Respondent provided no testimony (either in her
testimony declaration or on cross-examination) stating that the registered mark THE
COZY CABIN BOUTIQUE was used on any of these websites in this full and complete
form on or before Respondent’s August 1, 2016 application filing date.
Respondent’s interrogatory answers and Mrs. Waterhouse’s cross-examination
testimony fare no better. From a reading of Respondent’s Interrogatory Answers Nos.
2-5, 7-9 and 17, quoted above, it is unclear whether the mark Respondent used on or
before its August 1, 2016 application filing date, and thereafter, was or is “COZY
CABIN,” “COZY CABIN CLOTHING,” “COZY CABIN BOUTIQUE,” or the registered
mark “THE COZY CABIN BOUTIQUE.”

38 Waterhouse CX Depo., 40 TTABVUE 39.
39 Id. at 19-20.
Cancellation No. 92070043

- 26 -

We also find telling Mrs. Waterhouse’s cross-examination testimony, wherein she
admitted that Respondent was not using the mark THE COZY CABIN BOUTIQUE
at the time its underlying ‘545 Application was filed:40
Q: So is it accurate to say that you weren’t actually using the full mark,
The Cozy Cabin Boutique, at that time; you chose to register that
trademark because you wanted to leave your option open to use
“Boutique” in the future?
A: Oh, yes. Like I just wanted to be able to include it in the name. Like,
I didn’t have to include it, but I could if I wanted to, whether on the web
site or tags or whatever it was.
Q: Okay. But at that time, you were using Cozy Cabin Clothing as your
mark?
A: Right, or just Cozy Cabin.
Respondent objects that Mrs. Waterhouse’s cross-examination testimony41 was
somehow procured or interpreted by means of trickery on the part of Petitioner’s
counsel:
In regards to my statement about my understanding of the use of the
word ‘boutique’ in my trademark and that I couldn’t claim rights to it.
([Petitioner’s Brief,] 42 TTABVUE 9). When [Petitioner’s] lawyer …
questioned me about my name, I was explaining my line of thinking very
specifically based on my conversation with [the] USPTO employee …
[the Examining Attorney] over the phone. Regardless of my
understanding at the time, or my interpretation, even if partially
misguided or misunderstood, my trademark in its entirety was in use as
‘Cozy Cabin Boutique’ and I registered it as such, purposefully. I
explained what I was using at the time to … [the Examining Attorney]
and she guided my decision to be the one most accurate, which was ‘Cozy
Cabin Boutique’. I used all other phrases, ‘Cozy Cabin’, ‘The Cozy Cabin’
and ‘Cozy Cabin Clothing’ sparingly or in close conjunction with ‘Cozy
Cabin Boutique’. I have always used ‘Cozy Cabin Boutique’ on my
website, tags, cards, social media and signage. This is exhibited also in
my testimony in my in person set up where you can see both the banner
that says ‘Cozy Cabin Clothing’ as well as the sign next to it that says

40 Id. at 37-38.
41 Respondent’s Brief, 46 TTABVUE 8-9.
Cancellation No. 92070043

- 27 -

‘Cozy Cabin Boutique’. ([Mrs. Waterhouse’s stricken Further
Declaration,] 44 TTABVUE 34). This is also displayed on my social
media where both phrases were frequently written on the same posts.
([Mrs. Waterhouse’s stricken Further Declaration,] 45 TTABVUE 2 - 19)
I owned both www.cozycabinclothing.com and
www.cozycabinboutique.com where either one routed to the same place.
Even if this all weren’t true, which it absolutely is, I transitioned nearly
completely to ‘Cozy Cabin Boutique’ within just a few months of starting
my business when I was officially registering my trademark and this
has remained an indisputable fact up into the present month and year.
That entire statement has been maniuplated [sic] out of context
or perspective by … [Petitioner’s Counsel’s] questions and play
on words. If he would have asked me directly were you using the mark
‘Cozy Cabin Boutique’ as well as ‘Cozy Cabin Clothing’ I would have said
yes. This is also further proven by the dates on my social media and the
clear representation of ‘Cozy Cabin Boutique’ in media posts. ([Mrs.
Waterhouse’s stricken Further Declaration,] 45 TTABVUE 2-19)
(Emphasis added).
We pause here to observe that Respondent’s explanation quoted above never
mentions the full mark that is registered, THE COZY CABIN BOUTIQUE. Even
were we to accept Respondent’s explanation of Mrs. Waterhouse’s deposition
testimony, it does not support a finding that the registered mark, complete with the
definite article “THE,” was in use as of the filing date of Respondent’s underlying
trademark application.
In response to Respondent’s charge of testimonial manipulation, Petitioner argues
that Respondent’s accusation is contradicted by Mrs. Waterhouse’s own testimony
and by Respondent’s interrogatory answers42 (which we quote above). Having read
the entirety of Mrs. Waterhouse’s cross-examination testimony in context, we find
that it was not procured or interpreted by Petitioner by way of trickery or

42 Petitioner’s Reply Brief, 48 TTABVUE 8.
Cancellation No. 92070043

- 28 -

manipulation, and that it does not support a finding that the registered mark THE
COZY CABIN BOUTIQUE was in use in commerce for any of the goods identified in
the ’231 Registration prior to the filing date of Respondent’s underlying application.
VI. Conclusion
We find Petitioner has demonstrated by a preponderance of the evidence that
Respondent was not using THE COZY CABIN BOUTIQUE mark in commerce in
connection with any of the goods identified in the ’231 Registration on or before
Respondent’s underlying August 1, 2016 application filing date.
What we have here is an evidentiary record that is unclear, unconvincing,
inconsistent, contradictory and lacking in conviction of its accuracy and applicability
as to Respondent’s use in commerce of the mark THE COZY CABIN BOUTIQUE on
or before the August 1, 2016 filing date of its use-based application. We are
persuaded, based on the preponderance of the record before us, that Petitioner
showed that Respondent’s mark was not used in commerce on or before the critical
date. Respondent’s underlying ‘545 Application, and therefore its resulting ‘231
Registration, are void ab initio.
Decision:
The Petition to Cancel Registration No. 5165231 for THE COZY CABIN
BOUTIQUE mark, on the grounds of non-use of Respondent’s mark in commerce in
connection with any goods identified in the registration on or before the filing date of
Respondent’s underlying use-based application therefor, is granted.