NJoy Spirits, LLC. dba NJoy Spirits, LLC.v.Frank Lin Distillers Products, Ltd.

Trademark Trial and Appeal Board

Feb 5, 2016

No. 92060288 (T.T.A.B. Feb. 5, 2016)

WINTER Mailed: February 5, 2016

Opposition No. 91211205 (parent)

Frank Lin Distillers Products, Ltd.
v.
NJoy Spirits, LLC. dba NJoy Spirits, LLC.

and

Cancellation No. 920602881

NJoy Spirits, LLC. dba NJoy Spirits, LLC.

v.

Frank Lin Distillers Products, Ltd.

Before Zervas, Taylor, and Bergsman,
Administrative Trademark Judges.

By the Board:

In Cancellation No. 92060288, NJoy Spirits, LLC. (hereafter “NJoy”) seeks to
cancel the registration of Frank Lin Distillers Products, Ltd. (hereafter “Frank Lin”)
for the mark BUCK in standard characters for “distilled spirits, namely, Kentucky
Bourbon, for human consumption.”2 As grounds for cancellation, NJoy alleges inter
alia, that “Respondent has filed a notice of opposition against Petitioner’s

1 The proceedings were consolidated in the Board’s order dated December 8, 2014.

2 U.S. Reg. No. 3709380, issued November 10, 2009.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91211205 and Cancellation No. 92060288

2
application [for the mark WILD BUCK WHISKEY] based on likelihood of confusion
(¶ 2); “Kentucky bourbon is the main ingredient in a buck, a mixed drink that
combines bourbon with fruit and ginger ale” (¶ 7); and “BUCK … refers to Kentucky
bourbon as it immediately brings to mind mixed drinks containing bourbon” (¶ 11).
In its answer, Frank Lin has denied the salient allegations in the petition to cancel
and alleged that NJoy’s claim is barred by the equitable doctrines of laches, unclean
hands, and estoppel.
These cases now come up for consideration of NJoy’s fully briefed3 motion filed
November 4, 2015, in Cancellation No. 92060288 for summary judgment on its
claim that the involved mark is merely descriptive.
For purposes of this order, we presume the parties’ familiarity with the
pleadings and the arguments submitted in support of and in response to
Petitioner'smotion for summary judgment.
Njoy submitted the following evidence to show that BUCK is merely descriptive
for bourbon:
• Recipe for Kentucky Buck Cocktail, in which bourbon is an ingredient at
http://ahealthylifeforme.com/easyrecipe-print/7261-0/, accessed 9/7/14 (9
TTABVUE 38);

• Recipe for Kentucky Buck Cocktail, in which bourbon is an ingredient at
http://www.falselogic.net/dimortuisunt/2014/05/19/cocktail-of-the-week-
kentucky-buck/, accessed 9/7/14 (9 TTABVUE 39-40);

3 We note that Njoy’s reply brief was filed in Cancellation No. 92060288, rather than in the
parent file, Opposition No. 91211205. As instructed in the Board’s order mailed
December 8, 2014, all papers in these proceedings must be filed in the parent proceeding or
opposition. A copy of the reply brief has been uploaded to the opposition proceeding.

Opposition No. 91211205 and Cancellation No. 92060288

3
• Definition of “Buck (cocktail)” from Wikipedia: “Buck, and also mule, are
slightly antiquated names for a family of historic mixed drinks that involve
ginger ale or ginger beer, citrus juice, and any number of base liquors.
[Several variations listed, e.g., Gin buck or London Buck or Ginger Rogers,
Whiskey, scotch, or bourbon buck, Vodka buck or Moscow Mule, etc.], at
http://en.wikipedia.org/wiki/Buck_(cocktail), accessed 10/17/2014 (9
TTABVUE 42) (emphasis original);

• Drink of the Week: Kentucky Buck. … “A buck (or mule) is really just a
mixed drink that uses ginger ale or ginger beer to carbonate and citrus juice.”
At http://guysbiteout.com/drink-week-kentucky-buck/, accessed 10/27/2014 (9
TTABVUE 43);

• Variations of the ‘buck’ include Rum buck or Jamaica Buck or Barbados
Buck, Whiskey bucks including Kentucky Mule (Bourbon), Andrew Jackson
(Tennessee whiskey), Joe Buck (corn whiskey), and Mamie Taylor (scotch),
Tequila buck, also called El Burro, El Diablo or Mexican Burro, at
http://wiki.webtender.com/wiki/Buck_Cocktails, accessed 10/27/14 (9
TTABVUE 46);

• Recipe for ‘Kentucky Buck’ [including Wild Turkey bourbon] along with
commentary: “’Bucks’ are a family of drinks that consist of ginger beer plus a
spirit and citrus—a category that includes this fruity refresher as well as the
Moscow Mule. …”, at http://www.saveur.com/article/recipies/kentucky-buck-
cocktail, accessed 10/11/2015 (9 TTABVUE 47);

• Reference to the ‘Kentucky buck’ available at Tarpy’s Roadhouse, Monterey
County, at http://www.montereycountyweekly.com/food_wine/reviews/tarpy-s-
roadhous ..., accessed 10/17/2015 (9 TTABVUE 58);

• ‘The Kentucky Buck Cocktail’ recipe along with commentary: “’Bucks’ are a
family of drinks that consist of ginger beer plus a spirit and citrus …”,
http://purentonline.com/blog/entertainment/the-kentucky-buck-cocktail/,
accessed 10/17/2015 (9 TTABVUE 59);

• “buck” in list of ‘classic cocktails’ on a menu, along with fizz, julep, old
fashioned, collins, manhattan, negroni, martini, and others, at
http://www.sobounola.com/cocktails, accessed 10/26/2015 (9 TTABVUE 67);

• CocktailEnthusiast on “Bourbon Buck”: “The Buck is a style of cocktail that
mixes ginger beer or ginger ale with citrus and spirit….,” at
http://cocktailenthusiast.com/bourbon-buck, accessed 9/7/14 (9 TTABVUE
71);

Opposition No. 91211205 and Cancellation No. 92060288

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• “Buck, Mule or Dark ‘N’ Stormy?” “…These are a straight-forward group of
drinks that are a base spirit, some citrus juice, and ginger beer… we should
start this story with ginger beer/ale. You can’t have a buck without this
special mixture …” at http://rocktreesky.com/buck-mule-or-dark-n-stormy,
accessed 10/27/14 (9 TTABVUE 89);

• Blog regarding The Fine Art of Mixing Drinks (David Embury, 1948) and the
author’s summer cocktails, namely, “Bucks, Rickeys, Fizzes, and Collins.”
“Bucks are a cousin of the highball cocktail and are generally constructed
with a base spirit (such as Whiskey, Gin, Rum), a splash of lemon juice, and
ginger ale over ice. …” http://loungerati.blogspot.com/2010/07/what-were-
drinking-summertime-means.html, accessed 10/27/14 (9 TTABVUE 101-02)
(emphasis original);

• Variety of ‘Bourbon Buck’ cocktails: ‘Buck Be a Lady,’ Grapefruit Bourbon
Buck and Minty Pomegranate Bourbon Buck at “Women and Whiskey” at
http://www.meltingpot.com/womenandwhiskey.aspx, accessed 10/27/14 (9
TTABVUE 123), and ‘Bourbon Buck Cocktails Help Us Celebrate The Arrival
of Fall’ at http://barflysf.com/2015/09/29/bourbon-buck-cocktails-help-us-
celebrate, accessed 10/11/2015 (9 TTABVUE 128-130);

• Reddit cocktails: “All drinks with a spirit + ginger beer/ale + citrus were
historically referred to as a Buck,” at
https://www.reddit.com/r/cocktails/comments/2tmy03/buck_vs_mule/ accessed
10/11/2015 (9 TTABVUE 133);

• “How to tell a buck from a fizz” (The Washington Post), “If citrus juices are
used, it becomes a Buck or a Collins or a Rickey and is no longer a Highball
…” “And then there is the buck, perhaps the least-known of the long-drink
family. A buck, very simply, is a Collins that calls for ginger ale and no
sugar…,” at https://www.washingtonpost.com/lifestyle/food/how-to-tell-a-
buck-from-a-fizz, accessed 10/11/2015 (9 TTABVUE 140).

Njoy also submitted Internet printouts showing use by third-parties of marks
comprising the term “BUCK” for alcoholic beverages (9 TTABVUE 202-207, 226-
229); and printouts from the USPTO Trademark Electronic Search System (TESS)
showing data on applications for or registrations of marks for various types of
alcohol, beer or wine that include the term “BUCK” (9 TTABVUE 208-225).
Opposition No. 91211205 and Cancellation No. 92060288

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In response to the motion for summary judgment, Frank Lin submitted various
materials, including the following:
• Declaration of Ann Nguyen (29 TTABVUE 19), counsel for Frank Lin, to
which was attached the following materials or printouts from the Internet:

o Wikipedia definition of bourbon whiskey at
https://en.wikipedia.org/wiki/Bourbon_whiskey, accessed 12/8/2015 (29
TTABVUE 25);

o Definitions of “buck” from the online Merriam-Webster dictionary and
from the online Free Dictionary, at http://www.merriam-
webster.com/dictionary/buck and
http://www.thefreedictionary.com/buck, accessed on 12/7/2015 (29
TTABVUE 32, 40);

o Wikipedia search for “Buck” and other terms related to “Buck” at
https://en.wikipedia.org/wiki/Buck, accessed 12/7/2015 (29 TTABVUE
50);

o Google search results from a search for “Buck,”
https://www.google.com/webhp?sourceid=chrome-
instant&ion=1&espv=2&ie=UTF-8#q=buck, accessed 12/7/2015 (29
TTABVUE 83-102);

o Google search results from a search for “Buck bourbon,” showing
numerous references to Frank Lin’s product at
https://www.google.com/webhp?sourceid=chrome-
instant&ion=1&espv=2&ie=UTF-8#q=buck+bourbon, accessed
12/7/2015 (29 TTABVUE 104-123);

o Google search regarding drinks including ginger ale at
http://www.barnonedrinks.com/drinks/by_ingredient/g/ginger-ale-
488.html, accessed 12/8/2015 (29 TTABVUE 137-151);4

o Photograph of BUCK label affixed to bottle of bourbon whiskey (29
TTABVUE 125);

o Exhibits from Frank Lin’s initial disclosures which show its
promotional and marketing efforts in connection with the BUCK
bourbon (29 TTABVUE 160-179).

4 This exhibit is also attached to NJoy’s reply brief.
Opposition No. 91211205 and Cancellation No. 92060288

6
In reply, NJoy submitted copies of USPTO Office Actions in which the names of
drinks, e.g., “Cosmopolitan,” “Zombie,” “Sidecar,” “Stinger,” and “Mexican
Boilermaker,” were refused registration under Trademark Act Section 2(e)(1) (30
TTABVUE 40-66).
• Decision
Summary judgment is an appropriate method of disposing of cases in which
there is no genuine dispute with respect to any material fact, thus leaving the case
to be resolved as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for
summary judgment has the burden of demonstrating the absence of any genuine
dispute as to a material fact, and that it is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc. v.
Pannill Knitting Co. Inc., 833 F.2d 1560, 4 USPQ2d 1793, 1796 (Fed. Cir. 1987). A
factual dispute is genuine if, on the evidence of record, a reasonable fact finder
could resolve the matter in favor of the non-moving party. See Opryland USA Inc. v.
Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir.
1992); Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542,
1544 (Fed. Cir. 1992). Additionally, the evidence of record and all justifiable
inferences that may be drawn from the undisputed facts must be viewed in the light
most favorable to the non-moving party. See Lloyd’s Food Products Inc. v. Eli’s Inc.,
987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); and Opryland USA, 23 USPQ2d at
1472.
Opposition No. 91211205 and Cancellation No. 92060288

7
A mark is merely descriptive under Trademark Act Section 2(e)(1), 15 U.S.C.
§ 1052(e)(1), if it describes an ingredient, quality, characteristic, function, feature,
purpose or use of the relevant goods and/or services. Coach Services Inc. v. Triumph
Learning LLC, 101 USPQ2d 1713, 1728 (Fed. Cir. 2012), aff’g in part, Coach
Services, Inc. v. Triumph Learning LLC , 96 USPQ2d 1600 (TTAB 2010). See also In
re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986); In re MetPath Inc., 223
USPQ 88 (TTAB 1984); and In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979). The determination of whether a mark is merely descriptive must be made in
relation to the identified goods and/or services, and not in the abstract. In re Omaha
National Corp. 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); and In re Abcor
Development Corp. 588 F.2d 811, 200 USPQ 215 (CCPA 1978). It is not necessary
that a term describe all of the purposes, functions, characteristics or features of the
goods and/or services. It is enough if the term describes one significant attribute of
the goods and/or services. In re H.U.D.D.L.E, 216 USPQ 358 (TTAB 1982); and In re
MBAssociates, 180 USPQ 338 (TTAB 1973). This requires consideration of the
context in which the mark is used or intended to be used in connection with those
goods or services, and the possible significance that the mark would have to the
average purchaser of the goods or services in the marketplace. See In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In
re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007);
In re Abcor Dev. Corp., 200 USPQ at 218; In re Venture Lending Assocs., 226 USPQ
Opposition No. 91211205 and Cancellation No. 92060288

8
285 (TTAB 1985). The question is not whether someone presented only with the
mark could guess the products or activities listed in the description of goods or
services. Rather, the question is whether someone who knows what the products or
services are will understand the mark to convey information about them. DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757
(Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB
2002)). See also In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539
(TTAB 1998); In re Home Builders Association of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990); In re American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
If Petitioner can establish that at the present time, the registered mark is
merely descriptive, then it is incumbent upon Respondent to establish that the
registered mark currently has acquired a secondary meaning in the sense that its
primary significance is that of a source indicator of goods emanating from
Respondent. Neapco, Inc. v. Dana Corp., 12 USPQ2d 1746, 1747 (TTAB 1989).
Frank Lin has objected to various materials that NJoy submitted as evidence in
support of its motion for summary judgment because that evidence was not properly
authenticated, was without foundation, or is hearsay. Inasmuch as NJoy’s evidence
was accompanied by the declaration of NJoy’s counsel, the evidence has been
properly submitted and Frank Lin’s objections to that evidence are overruled. We
have considered such objections when considering the evidence and have accorded
the evidence appropriate probative weight. See Trademark Rule 2.122; TBMP
§ 528.05 (2015).
Opposition No. 91211205 and Cancellation No. 92060288

9
We now consider Petitioner’s standing. Standing is a threshold issue that must
be proven by a plaintiff in every inter partes case. Ritchie v. Simpson, 170 F.3d
1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). Petitioner’s standing to
bring the petition for cancellation is established by virtue of its position as the
applicant in the related opposition. Finanz St. Honore B.V. v. Johnson & Johnson,
85 USPQ2d 1478 (TTAB 2007) (applicant subject to opposition has inherent
standing to counterclaim for cancellation); Carefirst of Maryland, Inc. v. FirstHealth
of the Carolinas Inc., 77 USPQ2d 1492 (TTAB 2005) (“[a]pplicant, by virtue of its
position as defendant in the opposition, has standing to seek cancellation of the
pleaded registrations”) (citing Ohio State University v. Ohio University, 51 USPQ2d
1289, 1293 (TTAB 1999)).
After careful review of the record, we find that there is no genuine dispute of
material fact that the term BUCK is merely descriptive of a use of the goods
identified in the registration, i.e., “distilled spirits, namely, Kentucky Bourbon, for
human consumption.” Specifically, the internet evidence submitted by Petitioner
clearly shows that (i) a “buck” is a particular type of alcoholic cocktail or drink
comprised of alcohol, ginger beer or ginger ale, and citrus, and that (ii) “bucks” often
comprise bourbon, e.g., the “Kentucky Buck cocktail” or “bourbon buck.” In view
thereof, when consumers encounter Kentucky bourbon sold under the mark BUCK,
the mark BUCK immediately informs the potential customer that the product,
bourbon, can be used to make a “buck.” Respondent’s argument that the term
Opposition No. 91211205 and Cancellation No. 92060288

10
“buck” has various alternate meanings or is shown on the product with a bucking
horse has no consequence: the question is whether someone who knows what
Respondent’s product is will understand the mark to convey information about that
product. DuoProSS Meditech Corp., 103 USPQ2d at 1757. It is also irrelevant that
the term “buck” for “cocktail” is not found in the dictionary. The mere absence of a
dictionary entry for the relevant term does not establish that the term is not merely
descriptive. In re Orleans Wines, Ltd., 196 USPQ 516 (TTAB 1977). Moreover, the
parties’ evidence that there are various types of bucks as alcoholic drinks without
bourbon does not raise a genuine dispute as to whether the term “buck” by itself is a
type of cocktail comprised of bourbon. For all of these reasons, we find that there is
no genuine dispute regarding any material fact, and that BUCK is merely
descriptive of the goods identified in the involved registration. Accordingly,
Petitioner’s motion for summary judgment is GRANTED on the question of mere
descriptiveness.5
Respondent has additionally argued that BUCK has acquired distinctiveness in
connection with the involved goods, which we construe as a cross-motion on the
affirmative defense that its mark has acquired distinctiveness. Although acquired
distinctiveness presently is not pleaded, both parties have addressed the defense in
their respective response and reply brief to Petitioner’s motion. Thus, the parties
have “tried” the affirmative defense of acquired distinctiveness. In view thereof, we

5 Because this decision is interlocutory and nonfinal in nature (see infra), any appeal
thereof can be raised only after final disposition of this proceeding. See Copelands'
Enterprises Inc. v. CNV Inc., 12 USPQ2d 1562 (Fed. Cir. 1989).
Opposition No. 91211205 and Cancellation No. 92060288

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deem Respondent’s answer to be amended to conform to the evidence under Fed. R.
Civ. P. 15(b) to include the affirmative defense of acquired distinctiveness.
In support of its defense, Respondent has submitted the declaration of
Frank Lin’s Vice-President and Chief Financial Officer, Anthony DeMaria, who
attests that Frank Lin has spent almost $100,000 on marketing and advertising
efforts for its BUCK bourbon (¶ 6) and that it has sold over 13,000 (78,000 bottles)
cases of BUCK bourbon all over the United States (¶ 8) (29 TTABVUE 15). As noted
supra, Respondent also submitted Google search results from a search for “Buck
bourbon,” showing numerous references to Frank Lin’s product. We also note the
Internet printouts submitted by Petitioner, which show use by third-parties of
marks comprising the term “BUCK” for alcoholic beverages, including bourbon.
To establish secondary meaning, or acquired distinctiveness, an applicant [or
registrant] must show that “in the minds of the public, the primary significance of a
product feature or term is to identify the source of the product rather than the
product itself.” In re Dial–A–Mattress Operating Co., 240 F.3d 1341, 1347 (Fed. Cir.
2001) (citation omitted); In re Ennco Display Systems Inc., 56 USPQ2d 1279 (TTAB
2000). To determine whether a mark has acquired secondary meaning, courts
consider: advertising expenditures and sales success; length and exclusivity of use;
unsolicited media coverage; copying of the mark by the defendant; and consumer
studies. In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir.
2005).
Opposition No. 91211205 and Cancellation No. 92060288

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After reviewing the parties’ arguments and supporting evidence, and drawing
all inferences with respect to the motion in favor of Petitioner as the nonmoving
party, we find that the evidence submitted by Respondent in support of its
affirmative defense fails to establish the absence of a genuine dispute of material
fact as to whether the mark BUCK has acquired distinctiveness.6 In particular, at a
minimum, a genuine dispute remains as to whether Respondent’s use of the mark
in commerce has been substantially exclusive and continuous (see In re Owens-
Corning Fiberglass Corporation, 774 F.2d 1116, 227 USPQ 417, 424 n. 11 (Fed. Cir.
1985) (citing Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 942
(Fed. Cir. 1984)), and as to whether Respondent’s sales are significant vis-à-vis the
sales of competing products. Cf. Bose Corp. v. QSC Audio Products, Inc., 293 F.3d
1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002) (with respect to the fame of a mark,
“[r]aw numbers of product sales and advertising expenses may have sufficed in the
past to prove fame of a mark, but raw numbers alone in today's world may be
misleading.”). In view thereof, Respondent’s motion for summary judgment on its
defense of acquired distinctiveness is hereby DENIED. Accordingly, the

6 Petitioner should be aware that its burden of demonstrating acquired distinctiveness at
trial increases with the level of descriptiveness of its pleaded mark; a more descriptive term
requires more evidence of secondary meaning. In re Steelbuilding.com, 75 USPQ2d at 1424.
In determining whether secondary meaning has been established, the Board may examine
copying, advertising expenditures, sales success, length and exclusivity of use, unsolicited
media coverage, and consumer studies (linking the name to a source). Id. On this list, no
single factor is determinative. A showing of secondary meaning need not consider each of
these elements. Rather, the determination examines all of the circumstances involving the
use of the mark. See Thompson Med. Co., Inc. v. Pfizer Inc., 225 USPQ 124 (Fed. Cir. 1985).

Opposition No. 91211205 and Cancellation No. 92060288

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cancellation proceeding shall move forward solely on Respondent’s affirmative
defense that its mark has acquired distinctiveness.7
Proceedings Resumed; Trial Dates Reset
These proceedings are resumed. Trial dates are reset in accordance with the
following schedule:
Expert Disclosures Due 3/6/2016
Discovery Closes 4/5/2016
Plaintiff's Pretrial Disclosures Due 5/20/2016
Plaintiff's 30-day Trial Period Ends 7/4/2016
Defendant's Pretrial Disclosures Due 7/19/2016
Defendant's 30-day Trial Period Ends 9/2/2016
Plaintiff's Rebuttal Disclosures Due 9/17/2016
Plaintiff's 15-day Rebuttal Period Ends 10/17/2016

IN EACH INSTANCE, a copy of the transcript of testimony, together with
copies of documentary exhibits, must be served on the adverse party WITHIN
THIRTY DAYS after completion of the taking of testimony. See Trademark Rule
2.125, 37 C.F.R. § 2.125.

7 The parties should note that the evidence submitted in connection with the motions for
summary judgment is of record only for consideration of those motions. To be considered at
final hearing, any such evidence must be properly introduced in evidence during the
appropriate trial period. See, Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d
1464 (TTAB 1993); Pet Inc. v. Bassetti, 219 USPQ 911 (TTAB (1983); American Meat
Institute v. Horace W. Longacre, Inc., 211 USPQ 712 (TTAB 1981). Furthermore, the fact
that we have identified certain genuine disputes of material fact sufficient to deny
Respondent’s cross-motion should not be construed as a finding that these are necessarily
the only issues which remain for trial.

Opposition No. 91211205 and Cancellation No. 92060288

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Briefs shall be filed in accordance with Trademark Rules 2.128(a) and (b), 37
C.F.R. §§ 2.128(a) and (b). An oral hearing will be set only upon request filed as
provided by Trademark Rule 2.129, 37 C.F.R. § 2.129.
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