J. L. Penningtonv.GITZIT, Inc.

Trademark Trial and Appeal Board

Jun 30, 2009

No. 91172981 (T.T.A.B. Jun. 30, 2009)

Mailed:
June 30, 2009
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

J.L. Pennington
v.
GITZIT, Inc.
________

Opposition No. 91172981
against Serial No. 78703563
_______

Peter K. Hahn, of Luce Forward Hamilton & Scripps, LLP
for J.L. Pennington.

Christopher Hendershot, President, GITZIT, Inc., pro se for
GITZIT, Inc.
_______

Before Quinn, Bucher and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark GITZIT (in standard character format) for “fishing
lures” in International Class 28.1
J.L. Pennington has opposed this application on the
ground of priority of use and likelihood of confusion,

1 Application Serial No. 78703563 was filed on August 30,
2005 based upon applicant’s claims of first use anywhere and
first use in commerce at least as early as May 7, 1992.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91172981
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alleging that applicant’s mark, when used in connection
with the identified goods, so resembles opposer’s
previously used mark GITZIT for fishing lures as to be
likely to cause confusion, to cause mistake or to deceive,
under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d).
Applicant, in its answer, denied the essential
allegations of the notice of opposition.
In addition to the pleadings and the file of the
involved application, the record includes the testimony
deposition of Gary Garland, taken October 24, 2008, with
opposer’s Exhibits 1 - 10. Mr. Hendershot appeared by
telephone for the Garland deposition, but he posed no
cross-examination questions to Mr. Garland. Evidence
submitted in connection with motions for summary judgment
does not form part of the evidentiary record to be
considered at final decision unless it is properly
introduced in evidence during the appropriate testimony
period. Hence, the evidence submitted as part of
applicant’s several untimely motions for summary judgment
has not been considered in reaching our decision herein.
TBMP § 528.05(a) (2d ed. rev. 2004). Otherwise, applicant
has filed no notice of reliance, has taken no testimony
and did not file a final brief.
Opposition No. 91172981
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A. Opposer’s Standing
Opposer’s standing is a threshold inquiry made by the
Board in every inter partes case. In Ritchie v. Simpson,
170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999), the Federal
Circuit enunciated a liberal threshold for determining
standing, i.e., whether one’s belief that one will be (or
is being) damaged by the registration is reasonable and
reflects a real interest in the case. See also Jewelers
Vigilance Committee Inc. v. Ullenberg Corp., 823 F.2d 490,
2 USPQ2d 2021 (Fed. Cir. 1987); and Lipton Industries, Inc.
v. Ralston Purina Company, 670 F.2d 1024, 213 USPQ 185
(CCPA 1982). Opposer has presented uncontroverted evidence
of his direct commercial interest (and that of his
predecessor in interest) in use of the GITZIT trademark in
connection with fishing lures, from 1990 to the present.
We consider this sufficient to establish opposer’s standing
in this proceeding to oppose registration of applicant’s
mark. See Herbko International Inc. v. Kappa Books Inc.,
308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002).
B. Opposer’s Priority
Moreover, looking at the evidence of record as a
whole, opposer has established that he and his
predecessors in interest have continuously used the
Opposition No. 91172981
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GITZIT trademark with fishing lures from the fall of
1990 through the present. There is nothing in the
record that would cause us to question the reliability
or accuracy of Mr. Gary Garland’s testimony buttressed by
the accompanying documentary evidence. Oral testimony,
even of a single witness, if “sufficiently probative,” may
be sufficient to prove priority. Powermatics, Inc. v.
Glebe Roofing Products Co., 341 F.2d 127, 144 USPQ 430
(CCPA 1965); and Kohler Co. v. Baldwin Hardware Corp.,
82 USPQ2d 1100, 1108-09 (TTAB 2007). In the present case,
Mr. Garland’s testimony is not “characterized by
contradictions, inconsistencies and indefiniteness,” but
rather carries with it “conviction of its accuracy and
applicability.” B.R. Baker Co. v. Lebow Bros., 150 F.2d
580, 66 USPQ 232 (CCPA 1945). Accordingly, Mr. Garland’s
credible oral testimony, coupled with corroborating
evidence, satisfies opposer’s burden of proof in showing,
by a preponderance of the evidence, that opposer and his
predecessors used the GITZIT trademark earlier than
applicant’s priority date.
C. Likelihood of Confusion
We turn, then, to the issue of likelihood of confusion
under Section 2(d) of the Trademark Act. Our determination
Opposition No. 91172981
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must be based upon our analysis of all of the probative
facts in evidence that are relevant to the factors bearing
on the issue of likelihood of confusion. See In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also In re Majestic Distilling Company, Inc.,
315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we
keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and
differences in the marks.” See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
In this case, the marks are identical, the goods are
identical, and presumably they move through the same
channels of trade to the same groups of ordinary
purchasers. Under these circumstances, we conclude that
confusion is likely.
Decision: The opposition is sustained, and
registration to applicant is refused.