Life Zone Inc.v.Middleman Group, Inc.

Trademark Trial and Appeal Board

Jul 15, 2008

No. 91160999 (T.T.A.B. Jul. 15, 2008)

THIS OPINION IS A
PRECEDENT OF THE TTAB Mailed: July 15, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

Life Zone Inc.

v.

Middleman Group, Inc.1
_______

Opposition No. 91160999
to Application No. 78307830
filed on October 1, 2003
_______

Peter M. de Jonge and Gordon K. Hill of Thorpe, North &
Western, for opposer.

James A. Zellinger, Esq. for applicant.
_______

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

Opinion by Mermelstein, Administrative Trademark Judge:

Applicant seeks registration of the mark LIFEZONE
(typed mark) for
educational services, namely, conducting
seminars, speeches, workshops, lectures
and classes in the field of personal
development, leadership and management,

1 Both parties refer to applicant as “TMMG, Inc. (formerly The
Middleman Group, Inc.).” Nonetheless, there is no indication in
the subject application or in the USPTO’s assignments database
that a transfer or change of name has occurred. Neither has
applicant moved to add or substitute TMMG as the defendant.
Accordingly, we continue to consider Middleman Group as the
applicant in this proceeding. Applicant is advised that any
assignment or change of name should be recorded with the USPTO.
Otherwise, any registration which may issue from the subject
application will be issued in the name of Middleman Group, Inc.
Opposition No. 91160999

2
and distributing course materials in
connection therewith,

in International Class 41.2
Life Zone, Inc. filed an opposition to registration,
alleging that applicant’s mark, when used in connection with
the identified services, is likely to cause confusion, to
cause mistake, or to deceive in light of opposer’s
previously used and registered trademarks. Trademark Act
§ 2(d); 15 U.S.C. § 1052(d). By its answer, Middleman
Group, Inc. denied the salient allegations of the notice of
opposition.
I. Record Evidence
Pursuant to Trademark Rule 2.122, the record in this
case includes the pleadings and the file of the involved
application. During their respective main testimony
periods, both opposer and applicant filed notices of
reliance. Applicant took the deposition of Randy Moser,
applicant’s founder and owner. During its rebuttal period,
opposer took the deposition of Janeel Henderson, the founder
and president of “Life Zone, International.”3 Attached to
Ms. Henderson’s testimony were a number of exhibits.
Finally, each party attached numerous documents to its
brief.

2 Alleging a bona fide intent to use the mark in commerce.
3 It is not stated whether Life Zone, International is the same
entity as opposer Life Zone, Inc., although the parties appear to
tacitly assume that it is. Without deciding the question, we
Opposition No. 91160999

3
Each party has raised numerous objections to the
evidence proffered by the other. Because of the number and
nature of the evidentiary objections, a discussion of the
proffered evidence is necessary.
A. Documents attached to briefs
Both parties submitted briefs with extensive
evidentiary attachments. Exhibits or attachments to briefs
are of little or no use in a Board proceeding. The Board
sets trial periods during which the parties may submit
evidence by filing notices of reliance or by taking
testimony. Evidence submitted outside of the trial periods
– including that attached to briefs – is untimely, and will
not be considered. See TRADEMARK BOARD MANUAL OF PROCEDURE
(“TBMP”) § 704.05(b) (2d ed. rev. 2004)(and cases cited
therein). Conversely, evidence which was timely filed
during the parties’ trial periods need not and should not be
resubmitted.4 See ITC Entm’t Group Ltd. v. Nintendo of Am.
Inc., 45 USPQ2d 2021 (TTAB 1998). Thus, while exhibits to

will do likewise.
4 Parties to Board cases occasionally seem to be under the
impression that attaching previously-filed evidence to a brief
(and citing to the attachments, rather than to the original
testimony or notices of reliance) is a courtesy or a convenience
to the Board. It is neither. When considering a case for final
disposition, the entire record is readily available to the panel.
Because we must determine whether such attachments are properly
of record, Trademark Rule 2.123(l), citation to the attachment
requires examination of the attachment and then an attempt to
locate the same evidence in the record developed during trial,
requiring more time and effort than would have been necessary if
citations were directly to the trial record.
Opposition No. 91160999

4
briefs are not explicitly prohibited by the Trademark Rules,
the Board will usually ignore them, because they comprise
either untimely evidence or unnecessary copies of timely
evidence.
B. Notices of Reliance
In a Board proceeding, certain materials may be
introduced by filing them, accompanied by a notice of
reliance. However, the categories of materials which may be
submitted under a notice of reliance are limited, consisting
only of an adverse party’s discovery deposition, answer to
an interrogatory, or admission to a request for admission,
Trademark Rule 2.120(j)(3)(i); printed publications;5 and
official records, Trademark Rule 2.122(e).6 With these
principles in mind, we consider the evidence of record.
1. Opposer’s Notice of Reliance
Exhibit A is a “[p]rintout of Life Zone’s Website.”

5 “Printed publications” are generally defined as “books and
periodicals, available to the general public in libraries or of
general circulation among members of the public or that segment
of the public which is relevant under an issue in a
proceeding....” TBMP § 704.08 (2d ed. rev. 2004) (and cases
cited therein). It should further be noted that a printed
publication is only admissible for what it shows on its face;
unless it falls within an exception to the hearsay rule it will
not be considered to prove the truth of any matter stated in the
publication. 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1717 n.2
(TTAB 2007).
6 The Trademark Rules were recently amended. See Miscellaneous
Changes to Trademark Trial and Appeal Board Rules, 72 Fed. Reg.
42,242 (Aug. 1, 2007). Among other changes, Trademark Rule
2.120(j)(3)(i) now permits the submission of written disclosures
under a notice of reliance, in addition to the materials noted
above. Id. at 42,261. However, the relevant amendment applies
only to proceedings commenced on or after August 1, 2007, id. at
Opposition No. 91160999

5
Web pages which are not the equivalent of printed
publications are not admissible under a notice of reliance.
Paris Glove of Can. Ltd. v. SBC/Sporto Corp., 84 USPQ2d
1856, 1858-59 (TTAB 2007); Raccioppi v. Apogee Inc., 47
USPQ2d 1368 (TTAB 1998). Nonetheless, in its own notice of
reliance, applicant stated that it would rely on the
documents submitted by opposer as Exhibits A, J, and M.
Accordingly, we treat those exhibits as having been
stipulated to be part of the record, although they will not
be considered for the truth of the matters asserted therein.
Exhibits B (opposer’s brochure), C (materials used by
opposer in radio ads and radio interviews), D (examples of
opposer’s periodic newsletters – without indication that
they were circulated), and E (materials used by opposer in
seminars and conferences showing topics of discussion), do
not appear on their face to be “printed publications,” and
are therefore inappropriate for submission under a notice of
reliance.7 See Hunter Publ’g Co. v. Caulfield Publ’g Ltd. 1
USPQ2d 1996, 1997 n.2 (TTAB 1986) (while subject matter may
be of interest to the general public, such materials are not
necessarily in general circulation).

42,242, and no written disclosures were made in this case.
7 Exhibit B is described in the notice of reliance as a
“[b]rochure from Life Zone used to provide background
information.” While this document may be a publication in the
broad sense of the word, it does not appear to be a work of
general circulation of the type which would be found in
libraries, and is thus not a “printed publication” within the
Opposition No. 91160999

6
Exhibit F – “[t]estimonials from Life Zone consumers” –
are likewise inadmissible. Although opposer argues that
“many of the testimonials are in affidavit form, and
therefore considered self-authenticating,” we disagree.
These statements may not be considered because they do
not constitute any of the materials which may be submitted
under a notice of reliance. Further, to the extent they are
being offered to prove the truth of the matters asserted
therein, they are hearsay. Fed. R. Evid. 801(c). While the
parties may agree to present testimony by affidavit or
declaration, absent such a stipulation (and there is no such
stipulation of record), testimony in a Board proceeding must
be presented by way of a testimonial deposition, allowing
the opposing party an opportunity for cross-examination of
the witness. Boyds Collection Ltd. v. Herrington & Co., 65
USPQ2d 2017 (TTAB 2003); see generally, Trademark Rule
2.123(a)-(b).
Exhibits G-I purport to offer evidence of opposer’s
pleaded trademark registrations. The rules in effect for
this proceeding address the means for introducing evidence
of registrations owned by the offering party:
(1) A registration of the opposer ...
pleaded in an opposition ... will be
received in evidence and made part of
the record if the opposition ... is
accompanied by two copies ... of the
registration prepared and issued by the

meaning of Trademark Rule 2.122(e).
Opposition No. 91160999

7
[USPTO] showing both the current status
of and current title to the
registration. For the cost of a copy of
a registration showing status and title,
see §2.6(b)(4).

(2) A registration owned by any party to
a proceeding may be made of record ...
by that party by appropriate
identification and introduction during
the taking of testimony or by filing a
notice of reliance, which shall be
accompanied by a copy ... of the
registration prepared and issued by the
[USPTO] showing both the current status
of and current title to the
registration. The notice of reliance
shall be filed during the testimony
period of the party that files the
notice.

Trademark Rule 2.122(d).8
Opposer did not include title and status copies of its
registrations with its notice of opposition, see Trademark
Rule 2.122(d)(1), nor did it present its registrations
through testimony during its case-in-chief. Rather, opposer
filed plain copies of its registrations under its notice of
reliance. See Exh. G-I. Inasmuch as the submitted
documents are not copies “prepared and issued by the [USPTO]
showing both the current status of and current title to the
registration,” they have not been considered.
Exhibits J and K are papers from pending trademark

8 Trademark Rule 2.122(d) was recently amended. 72 Fed. Reg.
42,242, 42,262; see supra n.6. As with the amendment discussed
previously, this amendment applies only to proceedings commenced
on or after August 31, 2007. Id. at 42,242. Accordingly, we
have applied the rule in effect prior to that date, as quoted
above.
Opposition No. 91160999

8
applications. Exhibit J is from opposer’s Application
Serial No. 78432601.9 This application – which appears to
have been suspended pending final disposition of the
application which is the subject of this proceeding – is
admissible as an official record, and in any event was
relied upon by applicant.
Exhibit K consists of papers from Application No.
78307830 – the file of the application opposed in this
proceeding. It was unnecessary to introduce this
application into evidence under a notice of reliance because
the file of the subject application is part of the record by
operation of the Rules. Trademark Rule 2.122(b)(1).
Exhibit L, applicant’s responses to opposer’s
interrogatories, is admissible. Trademark Rule
2.120(j)(3)(i). On the other hand, Exhibits O and P,
applicant’s responses to opposer’s requests for admission,
are not. Trademark Rule 2.120(j)(3)(i) permits submission
under a notice of reliance of “an admission to a request for
admission.” (emphasis added.) In this case, applicant
denied each of opposer’s requests for admission, and
opposer’s denials are not admissible.10

9 For the mark LIFE ZONE for “educational services, namely,
conducting seminars and consulting in the field of nutritional
supplements, skin care products, cosmetics, health and fitness,
marketing, accounting, and management.” Filed June 9, 2004,
based on an allegation of first use as of February 13, 1981, and
use in commerce as of April 1, 1981.
10 Moreover, unlike an admission (or a failure to respond which
Opposition No. 91160999

9
On the other hand, applicant’s responses to opposer’s
request for production of documents – Exhibits M
(applicant’s production of documents) and N (applicant’s
responses to opposer’s requests for production) – may not
normally be submitted by notice of reliance, Trademark Rule
2.120(j)(3)(ii), and are therefore inadmissible under our
rules. Nonetheless, because applicant has noted its
reliance on Exhibit M, we consider the admission of that
exhibit to have been stipulated.
Finally, submission of Exhibit Q, the Board’s order of
April 19, 2007,11 was unnecessary as it is already part of
the record, although it is not considered evidence of
anything other than the course of this case.
2. Applicant’s Notice of Reliance
As noted, applicant submitted a notice of reliance.
Exhibit A is a title and status copy of Registration No.
1753895,12 which is admissible.

constitutes an admission), the denial of a request for admission
establishes neither the truth nor the falsity of the assertion,
but rather leaves the matter for proof at trial. Cf. Fed. R.
Civ. P. 36(b).
While applicant’s responses to opposer’s interrogatories are
admissible, they yield little useful information. Nevertheless,
we will give them whatever probative value they may have.
11 We note applicant’s reiterated complaint, App. Br. at 3, about
the Board attorney’s ruling (twice adhered to on reconsideration)
during discovery denying applicant’s counsel access to opposer’s
confidential information because he had served as an officer of
the applicant corporation during incorporation. We are aware
that counsel’s participation in that role does not continue.
Nonetheless, we see no reason to disturb the ruling.
12 For the mark THE LIFE ZONES SYSTEMS for “brochures, booklets,
Opposition No. 91160999

10
Applicant has also submitted, as Exhibit C to its
notice of reliance, what appear to be a number of pages of
search summary results for a search of the term “LifeZone”
from the Ask.com and Dogpile web sites, as well as nine
pages from several websites. However, internet materials of
this type are not appropriate for introduction under a
notice of reliance. Paris Glove, 84 USPQ2d at 1858-59.
Moreover, even if considered, the search summary has little
or no probative value. In re Bayer Aktiengesellschaft, 82
USPQ2d 1828, 1933 (Fed. Cir. 2007). Most results on these
hit lists provide only a few words surrounding the term
LifeZone, and some do not seem to include the term at all,
so there is little or no context to the excerpts.
Exhibit D to applicant’s notice of reliance comprises
several pages of “[a]pplicant’s recently created marketing
material.” These documents may not be submitted by way of a
notice of reliance because they are not printed
publications; there is no indication of whether or when they
were published, and in what publication.

and workbooks in the field of health and self-development” in
International Class 16, and “conducting individual and group
seminars in the field of health and self-development, including
the use of audio tapes,” in International Class 41. Registered
to Life Zones Services, Inc. (no relation to either party to this
case), February 23, 1993. Cancelled for failure to file an
affidavit pursuant to Trademark Act § 8, August 30, 1999.
Because this is a third-party registration, it was unnecessary
to introduce it by providing a title and status copy prepared by
the USPTO. A plain copy from the USPTO’s electronic database
would have sufficed.
Opposition No. 91160999

11
Finally, applicant submitted the testimonial deposition
of Mr. Randy Moser, identified as the “founder and owner” of
applicant. Mr. Moser’s testimony is admissible, although it
was unnecessary to submit it under a notice of reliance.
See Trademark Rule 2.123 (taking and filing trial
testimony).
C. Opposer’s Rebuttal Testimony
Lastly, during the time set for rebuttal, opposer
presented the testimony of its founder and president, Janeel
Henderson. A number of documents were identified and
attached to Ms. Henderson’s testimony. Applicant objected
to the testimony (and the documents introduced with it) both
during the Henderson deposition and in its brief, on the
ground that the testimony was improper rebuttal, and should
be stricken. Opposer responds that the Henderson testimony
was only presented to respond to and to rebut the testimony
of applicant’s witness, Randy Moser, and his “assertions
regarding Life Zone’s business practices and corporate
structure,” and cites a number of examples where Mr. Moser
allegedly mischaracterizes opposer’s products and customers.
Reply Br. at 6-8.
There are three problems with opposer’s argument.
First, it is opposer which bears the burden of proof in this
proceeding. That generally includes the burden of proving
what registrations or common-law trademarks it owns, the
Opposition No. 91160999

12
goods and services on or in connection with which it uses
its mark, its channels of trade, its classes of customers,
and any other information necessary to prevail. In other
words, it was incumbent upon opposer to come forward with
admissible evidence of these matters during its case-in-
chief.
It is axiomatic that rebuttal testimony may be used
only to rebut evidence offered by the defendant. Wet Seal
Inc. v. FD Mgmt. Inc., 82 USPQ2d 1629 (TTAB 2007)(rebuttal
evidence proffered because defendant would not concede
issues during cross-examination stricken). Opposer claims
that Mr. Moser’s testimony improperly characterized
opposer’s business, “opening the door” to opposer’s rebuttal
testimony. But if this is true, that door opened onto a
nearly empty room, because opposer had put little in it to
begin with.13
Second, opposer argues that its rebuttal testimony was
necessary to rebut the allegedly incorrect opinions and
suppositions about opposer’s business made by Mr. Moser in
testimony. To the extent Mr. Moser’s testimony offered mere
opinions or suppositions about applicant’s business (as
opposed to facts of which he had first-hand knowledge), or
offered opinions on the merits of this case, we have given

13 We refer, of course, to the quality of opposer’s admissible
evidence submitted during its case-in-chief, as well as its
quantity.
Opposition No. 91160999

13
it no weight. The Board must consider the admissible
evidence and draw its own conclusions. While such testimony
may be objectionable, it did not provide opposer with an
opportunity to resuscitate its case by presenting essential
evidence during rebuttal. Instead, the appropriate remedy
is to request that the Board disregard any hearsay
testimony, or that which is based on supposition or
unsupported opinion, which we have done.
Finally, even if Ms. Henderson’s testimony had been
offered to rebut “admissible assertions regarding Life
Zone’s business practices and corporate structure,” the
testimony went well beyond what would have been necessary to
correct Mr. Moser’s alleged misstatements. A plaintiff may
not present its case-in-chief in rebuttal merely because the
defendant denies that the plaintiff has made its case during
its case-in-chief.
Because it comprises inappropriate rebuttal, we grant
applicant’s motion to strike the testimony of Janeel
Henderson, and the documents proffered with it.14 They have
been given no further consideration.
D. Summary of Evidence
To summarize our evidentiary rulings, Exhibits A, J, K,
L, M, O, and P to opposer’s notice of reliance are

14 While we do not specifically address the documents proffered
with opposer’s rebuttal testimony, we note that many of them
present evidentiary issues similar to those discussed with regard
Opposition No. 91160999

14
admissible, as is Exhibit A to applicant’s notice of
reliance and the testimony of Randy Moser. All have been
considered for whatever probative weight they are due. We
accordingly focus the remainder of our discussion on this
evidence. Arguments in the parties’ briefs based on
inadmissible evidence have been given no consideration.
II. Discussion
A. Standing
As noted above, the record includes evidence of
opposer’s pending Application No. 78432601, for LIFE ZONE
for “educational services, namely, conducting seminars and
consulting in the field of nutritional supplements, skin
care products, cosmetics, health and fitness, marketing,
accounting, and management,” claiming use of the mark in
commerce “[a]t least as early as 04/01/81.” The ‘601
application was filed subsequent to the subject application,
and opposer’s evidence indicates that the examining attorney
cited the subject application as a potential bar to
registration, and that prosecution of the ‘601 application
has been suspended pending final disposition of the subject
application.
Opposer’s evidence of its pending trademark
application, and evidence that the application has been
suspended pending resolution of the subject application

to other evidence.
Opposition No. 91160999

15
demonstrate that opposer has a reasonable belief that it
would be damaged by registration of applicant’s mark, thus
establishing its standing. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Lipton
Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185 (CCPA 1982).
B. Grounds for Opposition
In an opposition, the opposer bears the burden of
proving by a preponderance of the evidence a substantive
ground for refusal to register the subject trademark. In a
likelihood of confusion case under Trademark Act § 2(d),
this burden requires an opposer to prove that it has some
prior trademark right and that applicant’s mark is likely to
cause confusion with that trademark. As noted above,
opposer failed to submit admissible evidence of its
trademark registrations, and we accordingly dismiss
opposer’s claims that registration of applicant’s mark will
lead to a likelihood of confusion with opposer’s pleaded
registrations.15
While opposer has not proved ownership of a trademark
registration, the Trademark Act permits opposition on the

15 Although applicant mentions opposer’s registrations in its
brief, it does not clearly admit that the title of any such
registrations is in opposer or that the registrations are
currently valid and subsisting. Thus, this is not a situation
where we can say that applicant has admitted that the pleaded
registrations are owned by opposer and are currently valid and
subsisting.
Opposition No. 91160999

16
basis of prior use of “a mark or trade name previously used
in the United States by another and not abandoned,”
Trademark Act § 2(d), i.e. ownership of a common-law
trademark right. But because unregistered marks are not
entitled to the presumptions established by statute, see
Trademark Act § 7(b)-(c), it is opposer’s burden to
demonstrate that it owns a trademark, which was used prior
to applicant’s mark, and not abandoned. See Trademark Act
§ 2(d).
Unfortunately for opposer, there is very little record
evidence of its common-law trademarks and no evidence of its
priority of use. While some evidence of the content of
opposer’s website is properly of record (only because of
applicant’s reliance on it), we consider such material only
for what it shows on its face, and not for the truth of any
matters asserted therein. Sports Auth. Mich. Inc. v. PC
Auth. Inc., 63 USPQ2d 1782, 1798 (TTAB 2001); TBMP § 704.08
(“Even if properly made of record, however, ... Internet
printouts[] would only be probative of what they show on
their face, not for the truth of the matters contained
therein, unless a competent witness has testified to the
truth of such matters.”). Thus, while this evidence shows
that such a website exists, it is not evidence that opposer
is using its mark on any goods or services displayed or
Opposition No. 91160999

17
discussed on the site.16
Opposer’s pending use-based Application No. 78432601,
for “educational services, namely, conducting seminars and
consulting in the field of nutritional supplements, skin
care products, cosmetics, health and fitness, marketing,
accounting, and management,” is also of record. The
application recites opposer’s first use of LIFE ZONE in
connection with these services in 1981. However, opposer’s
recitation of dates of use in its application does not
constitute evidence of opposer’s use or priority:
The allegation in an application for
registration, or in a registration, of a
date of use is not evidence on behalf of
the applicant or 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 applicant
or registrant unless identified and
introduced in evidence as exhibits
during the period for the taking of
testimony.

Trademark Rule 2.122(b)(2). While either party may rely
without further proof upon the filing date of its
application as a “constructive use date” for purposes of
priority, see Trademark Act § 7(c) (contingent upon

16 Even if opposer’s web pages were considered to constitute
evidence of the matters asserted therein, the only mention of
opposer’s alleged educational services is on the web page,
http://lifezone.com/education.html (November 19, 2004).
Plaintiff’s Notice of Reliance, Exh. A, LZ0000226. But this page
does not indicate that opposer has ever performed such services
and if so, when.
Opposition No. 91160999

18
registration); Levi Strauss & Co. v. R. Josephs Sportswear
Inc., 36 USPQ2d 1328, 1332 (TTAB 1994), opposer’s ‘601
application was filed on June 9, 2004, well after the
October 1, 2003, filing date for applicant’s subject
application, and thus provides no basis for opposer’s
priority.
Finally, we note that during the Moser testimony
deposition and in applicant’s brief, applicant seemed to
admit – or at least assumed – that opposer uses its mark for
“nutrition, diet, wellness, vitamins, cosmetics, skin,
beauty type of, you know, consumer type products.”17 See
Moser Test. unnumbered page;18 App. Br. at 3 (“These
documents submitted by Opposer, while bearing on Opposer’s
use of the mark in other unrelated classes, lacks any
bearing on the use of the mark in the applicable class, or
for that matter, any services whatsoever.”),19 (“Opposer’s
product [sic] are primarily sold by distributors and by

17 Applicant consistently and adamantly denied opposer’s claim
that opposer uses its mark in connection with any services, and
particularly in connection with educational services.
18 See Trademark Rule 2.123(g)(1)(“The pages of each deposition
must be numbered consecutively”).
19 Applicant argues that use of LIFE ZONE with a different class
of goods or services cannot be relevant. While we do not reach
the merits of this case, this is an incorrect statement of law.
“The fact that goods are found in different classes has no
bearing on the question of likelihood of confusion.” In re
Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992).
Although the relationship (if any) of the goods and services is
an important factor, see In re E.I. du Pont de Nemours and Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (factor #2), their
classification is not.
Opposition No. 91160999

19
mail....” and “Opposer is not the only user of its mark or
any variation thereof....”).20
But even if applicant admitted to opposer’s use of LIFE
ZONE on some goods, it is ultimately of no help to opposer,
because opposer has not proven (nor has applicant admitted)
when such use commenced. Unlike a case in which opposer
properly introduces trademark registrations into the record,
see King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974), it was opposer’s burden to
prove its priority of use by a preponderance of the
evidence. Without testimony or other evidence on this
point, we cannot presume that opposer’s use predates the
filing date of the subject application, or indeed whether it
even predates the filing of this opposition proceeding.
V. Conclusion
After careful consideration of the proffered evidence
and the parties’ briefs, we conclude that opposer has failed
to establish its priority, which is a necessary element of
any claim under Trademark Act § 2(d). We need not reach the
merits of this claim because without proof of priority,
opposer cannot prevail.
Decision: The opposition is DISMISSED.

20 We consider these statements even though they express
applicant’s opinion or beliefs about opposer’s business, but we
do so only to the extent that they admit opposer’s allegations.