Intelligent Sports Inc.v.Randy Buller

Trademark Trial and Appeal Board

Nov 6, 1997

No. 91095834 (T.T.A.B. Nov. 6, 1997)

THIS DISPOSITION IS NOT CITABLE AS
PRECEDENT OF THE TTAB NOV. 6, 97
Paper No. 28
JER
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Intelligent Sports Inc.
v.
Randy Buller
_____
Opposition No. 95,834
to application Serial No. 74/461,113
filed on November 22, 1993
_____
R. Terrance Rader, Michael B. Stewart, Cynthia Summerfield,
and Glenn E. Forbis of Rader, Fishman and Grauer for
opposer.
Thomas G. Bailey, Jr., Jorge Areimiega, Michael Okada, and
Bridget McCarthy of Whitman Breed Abott & Morgan for
applicant.
______
Before Rice, Hohein, and Hairston, Administrative Trademark
Judges.
Opinion by Rice, Administrative Trademark Judge:
An intent-to-use application has been filed by Randy
Buller, an individual, to register the mark PARTS AUTHORITY
(PARTS disclaimed) for retail store services and
distributorship services dealing in automobile parts,
supplies and accessories.1
Registration has been opposed by The Sports Authority,
Inc., now by assignment and change of name Intelligent
Sports Inc.2 As grounds for its opposition, opposer asserts
essentially that it is engaged in the business of marketing,
through its national chain of retail outlets, “various
products and services;”3 that since prior to applicant’s
filing date, opposer has used the trade name THE SPORTS
AUTHORITY, and trademarks formed or dominated by the term

1 Application Serial No. 74/461,113, filed November 22, 1993
under the provisions of Section 1(b) of the Trademark Act of
1946, 15 U.S.C. §1051(b), based on applicant’s assertion of a
bona fide intention to use the mark in commerce.
2 The record shows that the marks pleaded by the original
opposer, The Sports Authority, Inc., were thereafter assigned to
TSA, Inc., which changed its name to Intelligent Sports Inc.,
and that Intelligent Sports Inc. has licensed use of the marks
back to The Sports Authority, Inc. In an action dated April 17,
1996, Intelligent Sports Inc. was joined as party plaintiff
herein pursuant to a stipulation submitted by the parties.
Inasmuch as the discovery and testimony periods have now closed,
we hereby substitute Intelligent Sports Inc. for The Sports
Authority, Inc. as party plaintiff. See TBMP §512.01. The
Trademark Trial and Appeal Board Manual of Procedure (TBMP)
(Stock No. 903-022-00000-1) is available for a fee from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, D.C. 20402. (Telephone (202) 512-1800). It is also
available for a fee from the Patent and Trademark Office’s
Office of Electronic Information Products in the form of a CD-
ROM titled “Trademarks Assist.” (Telephone (703) 306-2600).
Finally, it is available on the global computer network at
http://www.uspto.gov/web/offices/dcom/ttab/tbmp/.
3 The notice of opposition fails to identify the types of goods
and services marketed by opposer. In order to give an applicant
fair notice of the basis for its claim, an opposer asserting
Section 2(d) (e.g., likelihood of confusion with a mark
registered and/or previously used by opposer) as a ground for
opposition should specify in its pleading both the mark or marks
AUTHORITY, including THE SPORTS AUTHORITY, THE KNIFE
AUTHORITY, THE BAG AUTHORITY, and THE LOW PRICE AUTHORITY,
in connection with its marketing activities; that opposer
owns four U.S. trademark registrations for certain of its
marks;4 that opposer’s goods and services provided under its
trade name and trademarks have been extensively and
continuously marketed and promoted throughout the United
States, with resulting widespread recognition of opposer’s
trade name and trademarks; and that applicant’s mark PARTS
AUTHORITY, as used in connection with applicant’s specified
services, so resembles opposer’s trade name and trademarks
as to be likely to cause confusion, or to cause mistake, or
to deceive.
Applicant, in his answer to the notice of opposition,
has denied the salient allegations contained therein. In
addition, applicant has asserted affirmatively that, inter
alia, there are numerous marks, registered and unregistered,
which incorporate the word AUTHORITY, such that the word
lacks the distinctiveness to create a likelihood of
confusion between opposer’s marks and applicant’s mark.
The record consists of the pleadings; the file of the
opposed application; status and title copies of seven

relied on and the goods or services in connection with which the
mark(s) is/are used.
4 The notice of opposition specifies the numbers of the four
registrations, but not the marks and goods or services covered
thereby; no copies of the registrations were attached to the
pleading.
registrations owned by opposer, the discovery deposition
(and attached exhibits) taken by opposer of applicant Randy
Bulller, applicant’s responses to opposer’s interrogatories
1-59, and copies of two trademark search reports, all listed
in opposer’s notice of reliance;5 and the testimony
deposition of Michael Lisi, Vice President, General Counsel,
and Secretary of Intelligent Sports Inc., in behalf of
opposer. The parties have briefed the case, but did not
request an oral hearing.
Opposer’s record shows that opposer (except as
otherwise indicated, the term “opposer” is used herein to
refer collectively to The Sports Authority, Inc. and its

5 The trademark search reports were produced by applicant in
response to opposer’s request for production of documents. A
party which has obtained documents from another party pursuant
to a request for production of documents may not make the
documents of record by notice of reliance alone, except to the
extent that they are admissible by notice of reliance under the
provisions of Trademark Rule 2.122(e), 37 CFR §2.122(e), which
relates to printed publications of general circulation and
official records. See Trademark Rule 2.120(j)(3)(ii), 37 CFR
§2.120(j)(3)(ii). Inasmuch as the trademark search reports are
neither printed publications of general circulation nor official
records, they are not admissible by notice of reliance.
Moreover, the Board will not consider copies of a search report
of information taken from a private company’s data base as
credible evidence of the existence of the registrations listed
therein. In order to make third-party registrations of record,
soft copies of the registrations themselves, or the electronic
equivalent thereof, i.e., printouts of the registrations taken
from the electronic records of the Patent and Trademark Office’s
own data base, must be submitted. See In re Smith and Mehaffey,
31 USPQ2d 1531 (TTAB 1994); In re Weyerhauser Co. v. Katz, 24
USPQ2d 1230 (TTAB 1992); and TBMP §703.02(b). However,
applicant has not objected to the admission of the search
reports but rather has treated them as being of record.
Accordingly, we deem the search reports, and the registrations
mentioned therein, to be of record by stipulation of the
parties.
successor, Intelligent Sports Inc.) was formed in 1987 for
the purpose of establishing a chain of category killer
sporting goods stores, i.e., large stores (of approximately
40,000 square feet) featuring a wide assortment of sports
equipment, from footwear and apparel to hard goods, with
everyday low prices and a high degree of service. The first
store was opened, under the mark THE SPORTS AUTHORITY, in
November 1987 in Ft. Lauderdale, Florida. The chain grew
rapidly, and by the time of opposer’s testimony period, in
March of 1996, opposer had become the world’s largest full-
line sporting goods retailer, with 131 THE SPORTS AUTHORITY
stores located throughout the United States, including New
York (where applicant is located). The mark is used on
store signs and employee uniforms. In addition, every item
of merchandise sold in the store has a hang tag and/or a
price sticker bearing the mark.
Opposer’s advertising and promotional activities (e.g.,
print advertising, television and radio advertising, sports
sponsorships, and billboards) in connection with THE SPORTS
AUTHORITY stores have been quite extensive, with total
expenditures amounting to more than $150 million for the
eight-year period running from 1988 through 1995. Opposer’s
sales under the mark for the same period totaled well over
$3 billion. Moreover, opposer and its stores have been the
subject of a large number of unsolicited articles over the
years. In short, the evidence of record indicates that THE
SPORTS AUTHORITY has become a very well known mark for
opposer’s retail store services featuring sporting equipment
and clothing.
In connection with its retail sporting goods store
services, opposer uses not only its house mark THE SPORTS
AUTHORITY, but also other marks comprising or containing the
term AUTHORITY, used to identify certain aspects of
opposer’s services. Examples of these marks include THE SKI
AUTHORITY; THE BASKETBALL AUTHORITY; THE GOLF AUTHORITY; THE
BAG AUTHORITY; THE KNIFE AUTHORITY; THE SHOE AUTHORITY; and
THE FOOTWEAR AUTHORITY.
Opposer’s record includes copies of a number of
U.S. trademark registrations which it owns. The registered
marks are THE SPORTS AUTHORITY6 (SPORTS disclaimed) and THE
SPORTS AUTHORITY and design7 (SPORTS disclaimed), as shown
below,

6 Reg. No. 1,527,526, issued Feb. 28, 1989 from an application
filed June 27, 1988; Section 8 affidavit accepted.
7 Reg. No. 1,529,035, issued March 7, 1989 from an application
filed June 27, 1988; Section 8 affidavit accepted; Section 15
affidavit received.

both for retail store services featuring sporting equipment
and clothing; THE SPORTS AUTHORITY (SPORTS disclaimed) for
ladies’ apparel, namely, shirts, and men’s apparel, namely,
hats, visors, pants, shirts, shorts and swim trunks;8
AUTHORITY for apparel, namely, rainwear, jackets, coats,
suits, slacks and vests;9 THE SKI AUTHORITY for retail store
services featuring ski equipment and clothing;10 THE LOW
PRICE AUTHORITY for retail store services comprising the
sale of sporting goods and equipment, footwear and
clothing;11 and THE BAG AUTHORITY (BAG disclaimed) for
athletic bags, drawstring bags used for sleeping bags and
floor mats, duffel bags and soft luggage.12 In addition,

8 Reg. No. 1,821,430, issued Feb. 15, 1994 from an application
filed March 1, 1993.
9 Reg. No. 1,245,417, issued July 12, 1983 from an application
filed May 24, 1982; Section 8 affidavit accepted; Section 15
affidavit received.
10 Reg. No. 1,688,221, issued May 19, 1992 from an application
filed Nov. 19, 1990.
11 Reg. No. 1,937,000, issued Nov. 21, 1995 from an application
filed Nov. 4, 1994.
12 Reg. No. 1,938,392, issued Nov. 28, 1995 from an application
filed Nov. 4, 1994.
the record indicates that at the time of its testimony
period, opposer owned a large number of pending applications
to register marks containing the term AUTHORITY, including
THE KNIFE AUTHORITY, THE BICYCLE AUTHORITY, RUNNING
AUTHORITY, IN-LINE AUTHORITY, SHOE & APPAREL AUTHORITY,
FOOTWEAR AUTHORITY, HOCKEY AUTHORITY, FITNESS AUTHORITY, and
others.
During its testimony period, opposer also filed an
intent-to-use application to register the mark PARTS
AUTHORITY for retail outlets featuring sporting goods and
equipment and parts, components and materials for use with
the same; rental of sporting goods and protective clothing
and equipment. Opposer’s witness, Mr. Lisi, testified that
from the beginning, opposer has sold parts for skis,
firearms, and in-line skates, as well as for equipment for
the racket sports, golf, and tennis; that these sales have
been “heavy;” that for several years, opposer’s senior
managers have been discussing the need to put together one
area in its stores which would be a tech center or a parts
and service center; and that PARTS AUTHORITY is exactly the
kind of mark opposer needs and should be using.
Finally, the record shows that in approximately 40
instances, opposer has taken action, ranging from a cease
and desist letter to an opposition in the U.S. Patent and
Trademark Office to a federal civil action, with respect to
what it considered to be infringing uses of marks containing
the term AUTHORITY. Twelve of these, including the present
opposition proceeding, were still pending at the time of Mr.
Lisi’s deposition. The remainder had apparently been
resolved in a manner favorable to opposer.13
As a result of opposer’s discovery efforts, the record
contains information concerning applicant and the mark he
seeks to register. Applicant is the president of Pro Parts,
Inc. (hereafter “Pro Parts”), a corporation formed in 1984.
Pro Parts is engaged in the business of selling automobile
repair parts to automotive repair shops, dealerships,
fleets, etc. The company purchases these parts from
manufacturers and sells them (still bearing the
manufacturers’ marks) to the automotive aftermarket. Pro
Parts also sells repair-related equipment such as hydraulic
lifts, wheel alignment machines, brake lathes, etc.
Affiliated with Pro Parts are four other companies
which, like Pro Parts, are engaged in the distribution of
automotive parts. These four companies, i.e., Clearway
Automotive, Inc., Clearway Foreign, Inc., Clearway Auto
East, Inc., and Accurate Automotive, Inc., are essentially

13 We note that opposer, in its brief on the case, has included
updated information concerning its policing efforts, the number
of stores it has, its applications and registrations, etc.
Indeed, opposer’s briefs are replete with facts not included in
the record. Factual evidence cannot be introduced through a
brief. Only those facts which are supported by evidence
properly submitted during the testimony periods can be
considerred in our determination of this case.
owned and run by relatives of applicant. Applicant himself
is not an officer or shareholder of any of the four, nor is
he affiliated with them. However, the four companies and
Pro Parts operate cooperatively. All five companies are
located in the state of New York, and do virtually all of
their business in that state, although there is some
spillover into New Jersey and Connecticut.
According to applicant’s discovery responses, the mark
PARTS AUTHORITY has been in use since December of 1993. The
mark was chosen by applicant, who for some time had been
looking for a way to give a common identity to all the
companies, while keeping their individual identities intact.
Applicant testified that he went into one of opposer’s THE
SPORTS AUTHORITY stores in 1990 or 1991, and that he thought
he was familiar with opposer’s mark when he selected the
mark PARTS AUTHORITY.
Use of the mark PARTS AUTHORITY is made not by
applicant himself but rather by Pro Parts and the four
affiliated companies. There is no written agreement between
applicant and any of the companies concerning use of the
mark. Rather, applicant just told them to use it.14

14 Applicant’s answers to opposer’s interrogatories 1 and 58
state that applicant has orally granted the right to use the
mark to yet another company, Parts Authority, Inc., a New York
corporation of which applicant is president; that use of the
mark has been through this corporation, “the business of which
is that of an automotive parts distributor which primarily sells
automotive parts manufactured by third parties to auto repair
shops and professional mechanics”; that applicant exercises
The five companies do very little advertising, and
never advertise in magazines or newspapers or on television
or radio. The mark PARTS AUTHORITY is used by the companies
in answering the phone,15 on invoices, on the side of a
delivery truck used by Pro Parts, Inc. and Clearway
Automotive, Inc., on T-shirts (and possibly also on hats,
sweatshirts, and candy) given away by the companies from
time to time as promotional items, and on company name and
phone number stickers distributed by the companies to their
customers for posting near the customers’ telephones. The
mark was also used on a mailer sent out by Pro Parts, Inc.
when it opened a new store in 1994. In addition, the five
companies held a trade show on April 25, 1995 and used the
PARTS AUTHORITY mark on the trade show invitations,
literature, and signage. Finally, during the year preceding
the taking of applicant’s deposition on October 19, 1995,

control over the quality of services rendered under the mark by
way of such agreement and “insofar as Applicant controls” the
corporation; and that use of the mark by this company has inured
to applicant’s benefit. However, applicant stated at his
discovery deposition that he didn’t know whether he was
president of Parts Authority, Inc.; that his grant to that
company of the right to use the mark was very informal; that the
company has no business activity; that within the two months
prior to the deposition, the other companies set up a checking
account for Parts Authority, Inc.; and that that company has one
or two employees paid out of that account who do work that
benefits all of the companies. It is clear from this testimony
that Parts Authority, Inc. is a shell corporation which has not
yet engaged in any commercial activity and has not made any use
of the mark PARTS AUTHORITY in connection with the distribution
of automotive parts.
15 Each company answers the phone with the statement, “Thank you
for calling [company name], your parts authority.”
Clearway Automotive, Inc. began to stamp the mark PARTS
AUTHORITY on some of the parts which it distributes.
Applicant is not aware of any instances of confusion,
mistake, or deception as to source arising from applicant’s
use of the mark PARTS AUTHORITY in connection with retail
store services and distributorship services dealing in
automotive parts, supplies, and accessories.
The 1995 trademark search report produced by applicant
in response to opposer’s request for production of
documents, and made of record by opposer’s notice of
reliance (see footnote 5), indicates that a number of marks
containing the term AUTHORITY have been registered by third
parties.16
Opposer’s priority of use of the marks THE SPORTS
AUTHORITY, THE SPORTS AUTHORITY and design, AUTHORITY, and
THE SKI AUTHORITY, for the goods and services listed in its

16 The marks in the third-party registrations include TWO WHEEL
TRANSIT AUTHORITY for, inter alia, bicycles, parts, and
accessories therefor, shirts, shorts, hats, jackets, shoes, and
retail store services in the fields of bicycles, bicycle tools,
clothing, and accessories; MOBILE AUTHORITY for automotive
stereo equipment; THE TRAVEL AUTHORITY for marketing consulting
services rendered to travel agencies; AUDIO AUTHORITY and design
for, inter alia, switching and demonstration apparatus used to
select, control and compare audio and visual signals to and from
electronic entertainment products; THE CRUISE AUTHORITY for
services of a travel agency specializing in arranging cruises;
THE DSP AUTHORITY for add-on computer circuit boards, computer
interface units, and parts for the foregoing; PORT AUTHORITY for
microprocessor and electronic switching control devices;
AUTHORITY for residential and commercial lock sets; SOUTH JERSEY
TRANSPORTATION AUTHORITY for administration and operation of
highways, airports and parking lots; HIGHER AUTHORITY
registrations thereof, is established by the evidence of
record. Moreover, the issue of priority does not arise in a
proceeding such as this against an opposer’s registered mark
or marks. See King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Here,
opposer has made of record not only its registrations for
these four marks but also its registrations for the marks
THE BAG AUTHORITY and THE LOW PRICE AUTHORITY. Thus, the
issue to be determined herein is the issue of likelihood of
confusion, including whether opposer has a family of marks
with the AUTHORITY surname.
We turn first to opposer’s contention that it owns a
family of marks characterized by the term AUTHORITY. The
“family” of marks doctrine has applicability in those
situations where, prior to a defendant’s first use of its
challenged mark containing a particular feature, the
plaintiff had established a family of marks characterized by
that feature, so that the defendant’s subsequent use of its
mark containing the feature for goods or services which are
similar or related to plaintiff’s will cause the relevant
purchasing public to assume that defendant’s mark is yet
another member of the plaintiff’s family. See Blansett
Pharmaceutical Co. Inc. v. Carmrick Laboratories Inc., 25
USPQ2d 1473 (TTAB 1992); Econo-Travel Motor Hotel Corp. v.

PRODUCTIONS for television show production services; and THE
Econ-O-Tel of America, Inc., 199 USPQ 307 (TTAB 1978); and
Porta-Tool, Inc. v. DND Corp., 196 USPQ 643 (TTAB 1977). It
is well settled that merely adopting, using, and registering
a group of marks having a feature in common for similar or
related goods or services is insufficient to establish, as
against a defendant, a claim of ownership of a family of
marks characterized by the feature. Rather, it must be
demonstrated that prior to the defendant’s first use of its
challenged mark, the various marks said to constitute the
plaintiff’s family, or at least a good number of them, were
used and promoted together in such a manner as to create
among purchasers an association of common ownership based
upon the family characteristic. See J & J Snack Foods Corp.
v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889 (Fed.
Cir. 1991); Hester Industries Inc. v. Tyson Foods Inc., 2
USPQ2d 1646 (TTAB 1987); and Cambridge Filter Corp. v.
Servodyne Corp., 189 USPQ 99 (TTAB 1975).
In the present case, opposer has made of record a large
number of print advertisements in which it has used the mark
THE SPORTS AUTHORITY or THE SPORTS AUTHORITY and design with
another designation containing the term AUTHORITY, such as
GOLF & TENNIS AUTHORITY, BASKETBALL AUTHORITY, TEAM SPORTS
AUTHORITY, YOUR OUTERWEAR AUTHORITY, HUNTING AUTHORITY,
HOCKEY AUTHORITY, SHOE AND APPAREL AUTHORITY, FOOTWEAR

TIRE AUTHORITY for retail tire store services.
AUTHORITY, and YOUR FITNESS AUTHORITY. This is certainly a
type of use which may serve to create a family of marks.
However, it appears that virtually all of the advertisements
were run in 1994 or 1995, that is, at a date subsequent to
the November 22, 1993 filing date of applicant’s involved
application. Some of the advertisements are in Spanish,
having been run in Spanish speaking areas of the United
States. There is no translation of these advertisements, so
we cannot tell what AUTHORITY designation, if any, may have
been used in them in addition to the mark THE SPORTS
AUTHORITY (which appears in English in all of the Spanish
advertisements). There are two Spanish advertisements which
do include, in English, the designation THE SKI AUTHORITY,
and which appear to have been run in 1990, in one case, and
in 1991, in the other.17 However, there is no testimony to
that effect. Moreover, even if their dates were prior to
applicant’s November 22, 1993 filing date, these two
advertisements alone would be insufficient to prove that
opposer had established a family of AUTHORITY marks prior to
such date. Because opposer’s evidence is insufficient to
show that opposer established a family of AUTHORITY marks
prior to applicant’s filing date, the issue of likelihood of
confusion must be determined by comparing applicant’s mark

17 The dates on many of the Spanish advertisements are unclear.
with each of opposer’s registered marks considered
individually.18
The most pertinent of opposer’s marks is the mark THE
SPORTS AUTHORITY, the strongest of opposer’s marks by reason
of opposer’s extensive use and promotion thereof, and the
mark to which most of opposer’s evidentiary record is
devoted. There can be no doubt that THE SPORTS AUTHORITY is
very well known as a mark for opposer’s retail store
services featuring sporting equipment and clothing.19
However, applicant’s mark PARTS AUTHORITY is readily
distinguishable from the mark THE SPORTS AUTHORITY in sound,
appearance, and meaning. Moreover, opposer has failed to
show that the services in connection with which applicant
uses his mark, namely, retail store services and
distributorship services dealing in automotive parts,
supplies and accessories, are related in any meaningful way
to opposer’s retail store services featuring sporting
equipment and clothing.20 Considering the substantial

18 Of course, opposer is also entitled to rely upon each mark as
to which it has proved priority of use. However, there is no
evidence of prior use of any of opposer’s unregistered marks.
19 Indeed, applicant concedes, on page 10 of its brief, that the
mark THE SPORTS AUTHORITY is a strong mark.
20 We find totally unpersuasive opposer’s argument, on page 27 of
its main brief, that “Applicant’s goods, i.e. automobile
replacement parts, are identical to many goods sold by [opposer]
such as part [sic] for bicycles, in-line skates, skateboards and
other modes of transportation.” We also note that the record is
devoid of evidence that the automotive parts market is within
opposer’s area of natural expansion.
differences in both the marks and the services of the
parties, we conclude that there is no likelihood of
confusion.
Although opposer’s registered mark AUTHORITY bears more
similarity to applicant’s mark PARTS AUTHORITY than does the
mark THE SPORTS AUTHORITY, the clothing items for which this
mark is registered so differ from applicant’s specified
services as to preclude likelihood of confusion.
Similarly, applicant’s mark and services so differ from
the marks and goods or services in opposer’s other
registrations that there clearly is no likelihood of
confusion by reason of their contemporaneous use. 21
For the foregoing reasons, we conclude that opposer’s
opposition is not well taken.22

21 In their briefs on the case, opposer and applicant argue over
whether there is evidence of third-party use, with opposer
contending, correctly, that the third-party registrations are
not evidence that the marks shown therein are in actual use, and
applicant urging that the record contains not only the third-
party registrations but also opposer’s own evidence as to third-
party uses against which it has taken action. We need not
discuss this question, however, because the cumulative
differences between the marks and services/goods involved in
this case are such that we would find that there is no
likelihood of confusion even if there were no evidence of any
third-party use of marks containing the term AUTHORITY.
22 In its brief on the case, opposer asserts that applicant has
abandoned his mark through naked licensing. However, this issue
was not pleaded by opposer as a basis for opposition. Moreover,
we conclude that it was not tried with the implied consent of
applicant, because the record does not show that applicant was
fairly apprised, prior to or during the trial period, that
opposer intended to assert this additional ground for
opposition. See, in this regard, TBMP §507.03(b), and cases
cited therein. In addition, it must be remembered that
applicant’s application is an intent-to-use application, and
Decision: The opposition is dismissed.
J. E. Rice
G. D. Hohein
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial
and Appeal Board

that no use is required of applicant at this point. However, in
the event that applicant ultimately prevails in this proceeding,
and subsequently files a statement of use, it is recommended
that the Examining Attorney make further inquiry concerning use
of the mark to determine whether applicant is, in fact, the
owner of the mark and, if use is then being made through the
various companies mentioned above, whether such use is
controlled by applicant. Also, if use is made through companies
whose use assertedly inures to the benefit of applicant,
applicant must amend his application to so state. See Trademark
Rule 2.38, 37 CFR §2.38.