Odessa Bowdenv.Timothy Jones

Trademark Trial and Appeal Board

Sep 29, 2008

No. 91168545 (T.T.A.B. Sep. 29, 2008)

Mailed:
29 September 2008
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Odessa Bowden
v.
Timothy Jones
_____

Opposition No. 91168545
to application Serial No. 78590458

_____

Odessa Bowden, pro se.1

Jill M. Pietrini of Manatt, Phelps & Phillips, LLP for
Timothy Jones.2
______

Before Grendel, Drost, and Mermelstein, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

Applicant, Timothy Jones, has applied to register the
mark NOBODY JONES (standard character drawing) on the

1 Opposer has electronically filed a paper with a cover sheet
that describes the submission as “Brief on Merits for Plaintiff.”
The cover sheet is dated May 15, 2008. The four-page document
included with the cover sheet is actually entitled “Notice of
Opposition.” The paper is dated May 14, 2008, and it reads like
a notice of opposition although it is not a copy of opposer’s
original notice of opposition.
2 Applicant has not submitted a brief.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91168545
2
Principal Register under the intent-to-use provision of the
Trademark Act for:
Clothing, namely, t-shirts, shorts, pants, sweatshirts,
sweatpants, scarves, aprons, jackets, jean jackets,
tank tops, vests, neckties, hockey jerseys, soccer
jerseys, fashion knit shirts, button-down shirts,
basketball jerseys, long sleeve t-shirts, sweaters,
baseball jerseys, girl’s t-shirts, polo shirts, wind
resistant jackets, muscle t-shirts, baby rompers,
toddler t-shirts, allovers, mock turtle necks, track
pants, ponchos, boxer shorts, bandanas, swimwear,
bathrobes, beachwear, lingerie, shirts, rainwear,
socks, night shirts, and hooded shirts; headwear; and
footwear in Class 25.

Serial No. 78590458 filed March 18, 2005.
After the mark was published for opposition, on January
11, 2006, Odessa Bowden, opposer, filed an opposition to the
registration of applicant’s mark. Opposer alleges that:
Since at least September 5, 2001, Odessa Bowden has
owned and conducted a clothing business using the name
“Nobody Jones.” Ms. Bowden has three Nobody Jones
clothing boutique stores in the Los Angeles area where
she has conducted business under this name for years…

Although Ms. Bowden has attempted to register her mark,
she has been unable to because of the applicant’s
pending application.3

The applicant’s mark is identical to Ms. Bowden’s mark.
Both companies using the marks are involved in the
clothing industry in the same city, county, and state
and will advertise and conduct business in the same
retail market. Ms. Bowden has used her mark for years.
Therefore, the actual confusion of consumers is
apparent. Consumers would be sufficiently confused as
not to be able to discern the difference between the
two marks…

Based upon the foregoing, the office should deny
registration of the mark to Timothy Jones and permit
registration to Odessa Bowden.

3 No evidence concerning this application was introduced.
Opposition No. 91168545
3

Applicant denied the salient allegations of the notice
of opposition.
Discussion
The record includes the pleadings and the file of the
involved application. Opposer also submitted two documents
entitled “Testimony of Plaintiff,” one filed on May 25,
2007, and the other on May 26, 2007. On July 23, 2007,
applicant sought dismissal under 37 CFR § 2.132(a) on the
grounds that opposer “did not (1) file evidentiary materials
with the Board with a notice of reliance; (2) did not
provide Applicant with the evidentiary materials during
Opposer’s testimony period, and only served this materials
three weeks after Opposer’s testimony period expired; and
(3) Opposer did not properly introduce and demonstrate the
relevance of the evidentiary materials.” Amended Motion for
Dismissal at 5.4 Exhibit A to applicant’s motion is
opposer’s letter and enclosures. Opposer’s letter begins
with the following sentence: “This letter serves as
delivery of copies of the evidence submitted to the United
States Patent and Trademark Office in reference to the
opposition of your client[’s] use of the ‘Nobody Jones’
trademark.”

4 This is the last paper applicant filed in the case.
Opposition No. 91168545
4
We set out below the documents attached to opposer’s
two “Testimony for Plaintiff” filings and we compare them to
Exhibit A that applicant has attached to his motion, which
purports to be the service copies of those documents.5
Other than the cover sheet, the first “Testimony for
Plaintiff” contained the following documents with brackets
explaining any differences between the documents opposer
filed and those served on applicant:
California State Seller’s Permit (Nobody Jones/Nobody
Jones.com 7/1/2003 date)
[Applicant’s Exhibit included an additional Seller’s
Permit with a 9/15/2002 date]

City of Los Angeles Tax Registration Certificate to
Odessa A. Bowden, start date 10-31-03

Signal Tribune Receipt for “Ficticious [sic] Name
Publishing Fee” dated 11/4/2003 for Nobody Jones

Register.com receipt for nobodyjones.com dated January
9, 2006

A Nobody Jones Boutique website page

Press releases dated December 13, 2003 and March 1 and
June 28, 2004 for Nobody Jones

Los Angeles Times article entitled “Taking the next
step” dated August 10, 2004.
In opposer’s copy, the “2004” date in the
newspaper article appears as:

In applicant’s copy, the “2004” date of the
newspaper article appears as:

5 Applicant did not submit any evidence.
Opposition No. 91168545
5

L.A. Watts Times articles dated May 20, 2004

Wave Community Newspapers article dated June 24, 2004

California Apparel News article dated May 21-27, 2004

Today’s Black Woman article dated February/March 2005

Los Angeles Wave article dated April 12, 2007

Our Weekly article dated April 27 – May 3, 2006

L.A. Focus on the Word articles dated July 2004 and
May, June and August 2006

aARTsCApe article Vol. 1 Issue 3

2 pages of ads from an unidentified publication

Photographs of a vehicle with NobodyJones.com lettering
on it

The second “Testimony of Plaintiff” contained the
following documents in addition to the cover sheet:
A letter from opposer’s former counsel to applicant’s
counsel

14 pages of Invoices/orders of Nobody Jones from
American Apparel.net
[6 pages are not included in applicant’s Exhibit A]

Photographs of women setting up a room
{These photographs are not included in applicant’s
Exhibit A]

The last item in the second “Testimony for Plaintiff”
is an unsigned narrative, apparently by Odessa Bowden,
describing her marketing activities. The paper includes the
statement that: “All of these things have been and continue
Opposition No. 91168545
6
to be done in the name of Nobody Jones.” This narrative is
not attached to applicant’s Exhibit A.
Applicant’s motion to dismiss also included certain
documents with its Exhibit A that are not attached to either
of opposer’s documents entitled “Testimony for Plaintiff.”6
These documents include:
6 pages from the website www.nobody-cares.org
apparently associated with Timothy Jones (applicant)

A typed page with a list entitled “Companies that
Identify Odessa Bowden as/or DBA Nobody Jones”

A memo and envelope from Wells Fargo dated November 10,
2003

A page of photographs with a sign that reads “People
Coordinated Services”

A letter to applicant’s counsel from opposer’s former
counsel dated January 10, 2006.

A newspaper article concerning Victoria’s Secret

On September 6, 2007, in its order (p. 2), the board
denied the motion to dismiss where, “as here, a plaintiff
presents evidence other than Patent and Trademark Office
records, the Board will not entertain any motion for
judgment but, rather, will wait until final hearing and
examine the evidence.”

6 These documents were never introduced into evidence during
either party’s testimony period. We have considered them only in
the context of determining whether the documents attached to
opposer’s “Testimony for Plaintiff” may be considered evidence
submitted by a notice of reliance.
Opposition No. 91168545
7
The important preliminary question is whether we can
consider any of opposer’s evidence. Obviously, opposer has
not actually submitted the “testimony of plaintiff” despite
the heading of her filings. The only thing that resembles
testimony is the document that appears to be the unsigned,
unidentified statement of plaintiff/opposer. It is not
clear if applicant was even served with this document and
there has been no stipulation to submit testimony by
affidavit or any other form. Boyds Collection Ltd. v.
Herrington & Co., 65 USPQ2d 2017, 2020 (TTAB 2003)
(“[P]arties may stipulate to the entry of testimony by
affidavit. However, in the absence of such a stipulation,
an affidavit or declaration is not admissible under a notice
of reliance”) (citations omitted). Therefore, we will not
consider this statement. TBMP § 702 (2d ed. rev. 2004).
The Trademark Rules provide that certain types of
documents may be submitted by a notice of reliance:
Printed publications, such 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, and official records, if the
publication or official record is competent evidence
and relevant to an issue, may be introduced in evidence
by filing a notice of reliance on the material being
offered. The notice shall specify the printed
publication (including information sufficient to
identify the source and the date of the publication) or
the official record and the pages to be read; indicate
generally the relevance of the material being offered;
and be accompanied by the official record or a copy
thereof whose authenticity is established under the
Opposition No. 91168545
8
Federal Rules of Evidence, or by the printed
publication or a copy of the relevant portion thereof.

37 CFR § 2.122(e).

The Trademark Trial and Appeal Board Manual of Procedure
further explains that: “A notice of reliance is essentially a
cover sheet for the materials sought to be introduced. This
cover sheet is entitled ‘notice of reliance’ and it serves, as
the title suggests, to notify opposing parties that the
offering party intends to rely on the materials submitted
thereunder in support of its case. The notice of reliance
must include a description of the proffered materials and, in
some instances, must indicate the relevance of those materials
to the case.” TBMP § 704.02.7
Opposer has failed to comply with the requirements for
submission of a notice of reliance. Opposer’s paper, which
was not identified as a notice of reliance, did not specify
the printed publications (including information sufficient
to identify the source and the date of the publication for
many),8 nor did it specify the general relevance of the
material being offered. We also are uncertain what
documents were served on applicant. The documents applicant
received apparently included some documents that opposer did

7 The narrative statement concerns opposer’s activities and it is
not a description of the proffered materials or an indication of
the relevance of the material being offered.
8 Opposer’s cryptic list of attachments for her “Testimony for
Plaintiff” submissions, e.g. “Website,” “Press_kit.pdf” and
“Articles.pdf,” is not a sufficient identification in this case.
Opposition No. 91168545
9
not file with the board while others that were filed with
the board were apparently not served on applicant.
Additionally, applicant objected to the documents entitled
“Testimony of Plaintiff” after he discovered that opposer
had filed her documents with the board without serving him.9
Therefore, we decline to consider the evidence that opposer
submitted with her “Testimony of Plaintiff” to be of record.
As a result, opposer has submitted no admissible evidence in
this case.
Opposer, as plaintiff in the opposition proceeding,
bears the burden of proving, by a preponderance of the
evidence, her priority of use and likelihood of confusion.
See Cerveceria Centroamericana, S.A. v. Cerveceria India
Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989);
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1848 (Fed. Cir. 2000). Inasmuch as opposer cannot
establish her priority or likelihood of confusion without
evidence, she cannot prevail in this proceeding.
Conspicuously missing from petitioner’s pleadings and
the record is proof of petitioner’s ownership of either
a trademark registration or of a common-law mark. The
grounds for cancellation set out in the petition are

9 Also, we cannot hold that there has been any implied agreement
by the parties to submit evidence in this fashion. See Original
Appalachian Artworks Inc. v. Streeter, 3 USPQ2d 1717, 1717 n.3
(TTAB 1987 (“In this case, applicant, an individual acting pro
se, filed neither evidence nor a brief on the case; we cannot
say, therefore, that as the result of any action or statement, he
treated as being of record the material improperly offered by
notice of reliance”).
Opposition No. 91168545
10
likelihood of confusion and false suggestion of a
connection with petitioner's marks.

Although petitioner pleaded ownership of common-law
marks in the petition to cancel, such matters were
denied in respondent’s answer, and are therefore
subject to proof. Without such evidence, petitioner
can prove neither its standing nor its substantive
claims. Even if the documents attached to petitioner's
notice of reliance were admissible (which they are
not), they would not be sufficient to establish
petitioner’s ownership and prior use of the asserted
marks. The documents are not admissible to prove the
truth of any matters asserted therein and, in any
event, there is no clear indication of whether they
were ever circulated to the public (and if so, when) in
such a manner as to create the prior trademark rights
asserted in the petition.

Boyd’s Collection, 65 USPQ2d at 2020 n.10.

Therefore, it is appropriate to dismiss this
opposition.
Despite this determination, we do not hesitate to add
that even were we to consider the evidence attached to
opposer’s “Testimony for Plaintiff” to the extent it could
have been considered with a proper notice or reliance,
opposer would still not prevail. Opposer’s documents
include copies of photographs, the letter of its counsel,
invoices, a website page, and receipts that may not be
submitted by a notice of reliance. 37 CFR § 2.122(e); Hard
Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1403
(TTAB 1998) (“Printed publications do not include press
releases by or on behalf of a party; press clippings, which
are essentially compilations by or on behalf of a party of
article titles or abstracts of, or quotes from, articles;
Opposition No. 91168545
11
studies prepared for a party; affidavits or declarations; or
product information”) (footnote omitted); Glamorene Products
Corp. v. Earl Grissmer Co., 203 USPQ 1090, 1092 n.5 (TTAB
1979) (“Private promotional literature is not presumed to be
publicly available in the sense of being readily accessible
for inspection in libraries open to the public or of such
currency that the other party is presumably familiar with
it”); Cadence Industries Corp. v. Kerr, 225 USPQ 331, 332
n.2 (TTAB 1985) (Letters between counsel not proper subject
matter for a notice of reliance); and Raccioppi v. Apogee
Inc., 47 USPQ2d 1368, 1370 (TTAB 1998 (“The element of self-
authentication which is essential to qualification under
Rule 2.122(e) cannot be presumed to be capable of being
satisfied by Internet printouts”). Opposer’s advertising
excerpts from an unspecified publication are also not
admissible. Hard Rock Cafe, 48 USPQ2d at 1405 (A “proffered
excerpt from a newspaper or periodical is lacking in
foundation and, thus, is not admissible as evidence to the
extent that it is an incomplete or illegible copy … or is
not fully identified as to the name and date of the
published source”).
Furthermore, opposer’s California seller’s permit and
tax registration certificate are not admissible under a
notice of reliance because they are not properly
authenticated. 37 CFR § 2.122(e); Hovnanian Enterprises,
Opposition No. 91168545
12
Inc. v. Covered Bridge Estates, Inc., 195 USPQ 658, 664
(TTAB 1977) (“The notice of reliance filed by respondent
also identified two ‘official records’, one being a deed of
realty and the other a confirmatory assignment. Apart from
considerations of their admissibility under the rules of
evidence, these documents were not authenticated as required
by Trademark Rule 2.122(c) and therefore have not been
considered as part of respondent’s record”). Even if we
were to consider the evidence of the California Seller’s
Permit and the Los Angeles Tax Registration Certificate,
this evidence does not demonstrate that opposer actually
used the mark NOBODY JONES for retail stores or on clothing
items. Also, the receipt for “Ficticious [sic] Name
Publishing Fee” contains an excerpt entitled “Fictitious
Business Name Statement” for NOBODY JONES that includes the
sentence: “The registrant has not yet begun to conduct
business under the fictitious business name or names listed
herein.” The date of this receipt is after any date on the
Seller’s Permit (7/1/2003) or tax registration certificate
(10/31/03). These documents also do not show any type of
actual use that would support an argument of priority based
on trade name or use analogous to trademark use. Liqwacon
Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 308
(TTAB 1979) (“Thus, in any controversy involving the
ownership of a particular mark or priority therein, the
Opposition No. 91168545
13
right thereto accrues to the party first to use the mark in
trade and not to the first adopter but subsequent user of
the term in trade”).
Newspaper articles are proper subject matter for a
notice of reliance and they could be considered as evidence
for plaintiff. While newspaper articles like other printed
publications may be made of record by notice of reliance under
37 CFR § 2.122(e), they are admissible and probative only for
what they show on their face, not for the truth of the matters
contained in the document, unless a competent witness has
testified to the truth of these matters. Logicon, Inc. v.
Logisticon, Inc., 205 USPQ 767, 768 n.6 (TTAB 1980) (“The
magazine articles and the article from Barron's are hearsay
in nature and thus are probative not for the truth of the
matters contained therein but rather only for what they show
on their face”); Food Producers, Inc. v. Swift & Company,
194 USPQ 299, 301 n.2 (TTAB 1977) (“The probative value of
the publications has been confined in our consideration of
petitioner's record to what they show on their face rather
than for the truth of the matter contained therein since
there is no opportunity to ascertain the source and/or basis
for the information or for respondent to confront and cross-
examine the individual or individuals responsible
therefore”); and Exxon Corp. v. Fill-R-Up Systems, Inc., 182
USPQ 443, 445 (TTAB 1974) (To “the extent that those
Opposition No. 91168545
14
articles have been offered by opposer-petitioner without
further testimony for the truth of their contents, namely,
that the events and activities mentioned therein did occur
or take place as related, they constitute inadmissible
hearsay”). Therefore, we cannot rely on these documents
that are apparently about opposer’s business to prove the
truth of the matter asserted in those articles.10
Therefore, even if we considered opposer’s “Testimony
for Plaintiff” only the newspaper articles would be of
record and they cannot be used to prove the truth of the
matter asserted. As a result, even if we assume opposer has
standing, we have no evidence that establishes opposer’s
ownership and priority of use of the mark NOBODY JONES for
any goods or services. Upon this record, opposer cannot
prevail.
Decision: The opposition is dismissed.

10 We also note that opposer’s brief primarily discusses her goods
while the documents attached to the “Testimony for Plaintiff” are
primarily directed to her retail services.