Pianos Etc. Inc.v.Kimball Piano USA, Inc. (Nevada Corporation) and Kimball Piano USA, Inc. (Illinois Corporation)

Trademark Trial and Appeal Board

Aug 31, 2020

92064361 (T.T.A.B. Aug. 31, 2020)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: August 31, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Pianos Etc. Inc. v. Kimball Piano USA, Inc. (Nevada Corp.) Kimball Piano USA, Inc. (Illinois Corp.) _____ Cancellation No. 92064361 _____ Wendy Peterson of Not Just Patents LLC, for Pianos Etc. Inc. John F. Eichler of John F. Eichler & Associates, for Kimball Piano USA, Inc. (Nevada and Illinois corporations) _____ Before Heasley, Larkin, and Lebow, Administrative Trademark Judges. Opinion by Lebow, Administrative Trademark Judge: I. Background Respondent, Kimball Piano USA, Inc.,1 originally owned a registration on the 1 Kimball Piano USA, Inc. (Nevada Corp.), the original Respondent, assigned the subject registration on March 29, 2019 to Kimball Piano USA, Inc. (Illinois Corp.) after institution of this proceeding. 48 TTABVUE 2. On June 10, 2019, the Board granted Respondent’s request to join Kimball Piano USA, Inc. (Illinois Corp.) as a party defendant. 51 TTABVUE. Because Cancellation No. 92064361 - 2 - Principal Register for the mark TECHNICS, in standard characters, for “musical instruments, namely, electronic and digital keyboard instruments of all kinds: electronic pianos, electronic keyboards, electronic organs, electronic synthesizers, digital pianos, digital keyboards, digital organs, digital synthesizers,” in International Class 15 (“the Registration”).2 Petitioner, Pianos Etc. Inc., filed a petition to cancel the Registration on two grounds: (1) Respondent abandoned the TECHNICS mark; and (2) Respondent committed fraud in procuring and maintaining the Registration.3 Respondent filed an answer denying the salient allegations in the petition and asserting, as an “affirmative defense,” notice of its future intention to file a motion to restrict its identification of goods to “musical instruments, namely, electronic and digital keyboard instruments” under Section 18 of the Trademark Act, 15 U.S.C. § 1068.4 Two months later, Respondent moved for leave to amend its answer. Respondent’s proposed amended answer carried over the “affirmative defense” that was asserted in the original answer.5 Petitioner opposed Respondent’s motion, arguing, inter alia, that Respondent’s “affirmative defense” was inapplicable in a proceeding where, as the original Respondent assigned the registration to a related entity, for ease of reference, we will refer to both defendants singularly as “Respondent.” 2 Registration No. 3548924, issued December 23, 2008, based on Respondent’s allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging a date of first use in commerce of July 31, 2007; renewed February 26, 2018. 3 1 TTABVUE. 4 11 TTABVUE 2-7. 5 13 TTABVUE. Cancellation No. 92064361 - 3 - here, likelihood of confusion is not claimed.6 In any event, Petitioner argued, the defense was improperly pleaded because Respondent had not consented to judgment as to the goods proposed for deletion.7 The Board granted Respondent’s motion for leave to amend its answer.8 As to the asserted “affirmative defense,” the Board agreed it was improperly pleaded and appeared inapplicable to this proceeding.9 Nonetheless, the Board treated Respondent’s allegations therein as amplifications of its denials to the petition and declined to sua sponte strike them from the pleading.10 On February 6, 2018, Respondent filed a combined declaration of use under Section 8 and application for renewal under Section 9 for the Registration, which deleted all goods except “musical instruments, namely digital pianos.”11 Shortly thereafter, Petitioner moved for summary judgment on all grounds based on Respondent’s Section 8 filing that deleted most of the goods without its consent in the midst of a cancellation proceeding pertaining to those goods.12 Petitioner argued that Respondent had impliedly consented to judgment with respect to those goods on all counts.13 Petitioner further argued that judgment should also be granted on the 6 14 TTABVUE 4-6. 7 Id. 8 21 TTABVUE. 9 Id. at 3-4. 10 Id. 11 35 TTABVUE 2; February 6, 2018 Combined Declaration of Use under § 8 and Application for Renewal under § 9, TSDR 2. 12 41 TTABVUE (Petitioner’s Third Motion for Summary Judgment). 13 Id. at 9-11. Cancellation No. 92064361 - 4 - remaining goods because a finding of fraud should apply to the entire class of goods.14 The Board construed Petitioner’s motion, though captioned as a motion for summary judgment, as a motion for an order to show cause why the deletion of Respondent’s goods in its Section 8 filing should not be deemed the equivalent of a canceling of those goods without Petitioner’ consent, and should not result in entry of judgment against Respondent.15 Trademark Rule 2.134(b), 37 CFR § 2.134(b). The Board allowed Respondent time to respond and show cause.16 Following Respondent’s response to the order,17 the Board was satisfied that Respondent’s deletion of goods in the Section 8 filing was the result of abandonment of the mark with respect to the deleted goods and not an attempt to moot the proceeding.18 Accordingly, the Board entered judgment as to the deleted goods on Petitioner’s claim of abandonment only.19 The order also provided Petitioner time to advise the Board whether Petitioner still desired to proceed with its claim of fraud against the deleted goods. Petitioner’s response to the Board’s order confirmed its 14 Id. at 11-12. 15 44 TTABVUE. The purpose of Trademark Rule 2.134(b), and the policy underlying the issuance of a show cause order, is to prevent a cancellation proceeding respondent, whose subject registration comes due for the filing of a declaration of use during the course of the proceeding, from being able to moot the proceeding and avoid judgment by deleting goods filed separately in a separate declaration filing. Orange Bang, Inc. v. Olé Mexican Foods, Inc., 116 USPQ2d 1102 (TTAB 2015) (finding Rule 2.134(b) applicable to proceedings where a defendant only deletes some goods or services, and not an entire registration). 16 Id. 17 45 TTABVUE. 18 46 TTABVUE. 19 Id. Cancellation No. 92064361 - 5 - intention to maintain the claim of fraud for those goods.20 The Registration is now limited to “musical instruments, namely digital pianos.” However, Petitioner’s claim of fraud continues with respect to all goods originally identified: “musical instruments, namely, electronic and digital keyboard instruments of all kinds: electronic pianos, electronic keyboards, electronic organs, electronic synthesizers, digital pianos, digital keyboards, digital organs, digital synthesizers,” in International Class 15. For the reasons that follow, we grant the petition for cancellation. II. Preliminary Issues A. Respondent’s Late Filed Notices of Reliance Petitioner draws the Board’s attention to the fact that Respondent’s notices of reliance were filed one day late: on July 23, 2019, after Respondent’s testimony period closed on July 22, 2019.21 As a result, “Petitioner is not considering any part of [Respondent’s Notices of Reliance] to be part of the operative record”22 and does not comment on any evidence submitted by Respondent in its trial brief. Respondent, in an appendix to its brief, requests that the Board accept its late-filed notices of reliance or, in the alternative, grant its within motion to “reopen the testimony period for the limited purpose of allowing Respondent’s previously-filed Notices of Reliance.”23 20 47 TTABVUE. 21 56 TTABVUE 8. 22 Id. 23 57 TTABVUE 40. Cancellation No. 92064361 - 6 - Trademark 2.121(a), 37 C.F.R. § 2.121(a), provides that “[n]o testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. See also Hole In 1 Drinks, Inc. v. Lajtay, 2020 USPQ2d 10020, *2 (TTAB 2020) (“a party may introduce testimony and evidence only during its assigned testimony period”). The Board may retroactively extend (i.e., reopen) the time for a party to file a brief if it failed to act because of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B); In re Dell, Inc., 71 USPQ2d 1725, 1726 n.1 (TTAB 2004) (retroactively granting request for extension of time to file reply brief made when the Respondent filed its untimely reply brief). The determination of excusable neglect depends on all of the circumstances of the case, including (1) any prejudice to the other party; (2) the length of the delay and its effect on this case or others; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993); see also FirstHealth of Carolinas, Inc. v. CareFirst of Md., Inc., 479 F.3d 825, 81 USPQ2d 1919, 1921 (Fed. Cir. 2007); The Coffee Studio LLC v. Reign LLC, 129 USPQ2d 1480, 1482 (TTAB 2019). Although Respondent’s notices of reliance were technically filed one day late on July 23, 2019, they were late by less than an hour. According to the ESTTA24 receipts attached as Exhibit A to Respondent’s counsel’s declaration, Respondent’s notices of 24 The Electronic System for Trademarks Trial and Appeals (ESTTA), a web-based application available on the Internet, is the Board’s electronic filing system. 37 C.F.R. § 2.2; TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 110.01. Cancellation No. 92064361 - 7 - reliance were filed on Monday, July 22, 2019 at or around 11:09 pm, 11:34 pm, and 11:41 pm, respectively.25 Because Respondent concedes that the filings were late, and because Respondent’s counsel is located in Illinois, we presume those times are based on Central Time. Considering that Eastern Time controls the actual filing date in Board cases, not the local time in the area in which a filing is made,26 Respondent’s filings appear to have been filed late by 9 minutes, 34 minutes, and 41 minutes, respectively. In his declaration in support of Respondent’s request, Respondent’s counsel avers that 6. On the night of July 22, 2019 I had filed out the appropriate ESTTA online form for filing Respondent’s Notices of Reliance. 7. I encountered a problem with uploading the PDF files. The PDF files were not accepted for upload by ESTTA, the file uploads were failing and I could not determine the cause. 8. Only after consultation with an acquaintance far more experienced with computers than I was the cause found: the PDF file names contained an apostrophe in the word “Respondent’s” which was causing the file uploads to ESTTA to fail. 9. Once the PDF file names were changed by eliminating the entire word “Respondent’s” or just the “ ’s ” the PDF files uploaded without incident. But time had passed and as a result the three filings to ESTTA of Respondent’s Notices of Reliance were 41-minutes late. … 10. After filing the Notices of Reliance with ESTTA, I immediately notified and delivered by email the Notices of Reliance to opposing counsel.27 25 57 TTABVUE 44-46. 26 37 C.F.R. § 2.195(a). 27 57 TTABVUE 41-42 (Declaration of John F. Eichler). Cancellation No. 92064361 - 8 - Counsel’s statement that he immediately served the filed notices of reliance on Petitioner’s counsel is supported by emails, attached to his declaration, showing they were served at 11:48 pm, 11:55 am, and 11:57 am, respectively, on July 22, 2019 (again presumably Central Time), which translates to 12:55 am, 12:57 am, and 12:57 am, respectively, on July 23, 2019, Eastern Time.28 We find that the maximum delay of 41 minutes in Respondent’s filing of its notices of reliance was minimal; that although the delay was within control its control, Respondent attempted to timely file its notices of reliance and acted in good faith; and that there was no prejudice to Petitioner caused by the delay. Because Respondent has demonstrated that its late filings were the result of excusable neglect, we will consider the evidence filed with Petitioner’s notices of reliance.29 B. Petitioner’s Duplication of Evidence in the Record Petitioner provided multiple copies of Respondent’s responses to its discovery requests with its notice of reliance: three copies of its admission responses;30 four 28 Id. at 48-50. 29 Because “[i]t is the responsibility of the party making submissions to the Board using ESTTA to ensure that the submissions have been entered into the trial record,” the better practice would have been for Respondent to have immediately moved the Board to reopen its testimony period based on excusable neglect rather than waiting for it to become an issue at trial. It would also have been the better practice for Petitioner to have moved to strike Respondent’s notices of reliance based on their untimeliness prior to final briefing. While a party may wait until briefing to raise procedural objections that could not be cured if raised promptly, see, e.g., Miss Nude Fla., Inc. v. Drost, 193 USPQ 729, 731 (TTAB 1976) (respondent’s objection to untimely notice of reliance raised for the first time in its brief not waived), pet. to Comm’r denied, 198 USPQ 485 (Comm’r 1977), by doing so, the party risks the Board’s denial of the motion and, potentially, an opportunity to challenge objectionable evidence. 30 While Respondent’s admissions are properly of record, its denials are not. “[U]nlike an admission (or a failure to respond which constitutes an admission), the denial of a request for admission establishes neither the truth nor the falsity of the assertion, but rather leaves Cancellation No. 92064361 - 9 - copies of Respondent’s production responses (2 of original responses, 2 of amended responses); three copies of interrogatory responses (2 of original responses, 1 of amended responses); and two copies of the responses to a special interrogatory (1 original response, 1 amended response). This was unnecessary and a burden on the Board, making its review of Petitioner’s evidence cumbersome. See In re Greenliant Sys., Ltd., 97 USPQ2d 1078, 1080 (TTAB 2010) (citing ITC Entm’t Grp. Ltd. v. Nintendo of Am. Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998) (filing duplicative submissions is a waste of time and resources, and is a burden on the Board)). The Board does not want or need multiple copies of trial evidence, which merely serves to complicate the record, delay processing, and waste Board resources. Additionally, because only Respondent’s amended responses are relevant, only those versions of the responses should have been made of record and relied upon by Petitioner in its argument; Petitioner’s trial brief cites only to Respondent’s original responses to discovery. Federal Rule of Civil Procedure Rule 26(e)(1) states that a party who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its … response (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. …. (emphasis added). Petitioner did not allege that Respondent’s corrected responses to discovery were untimely and prejudicial. Accordingly, only Respondent’s amended responses are considered. the matter for proof at trial. Cf. Fed. R. Civ. P. 36(b).” Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1957 n.10 (TTAB 2008). Cancellation No. 92064361 - 10 - C. Petitioner’s Untimely Motion for Sanctions Petitioner alleges for the first time in its trial brief that Respondent engaged in spoliation of evidence and moves the Board to impose sanctions.31 “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 98 USPQ2d 1693, 1699 (Fed. Cir. 2011) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). Petitioner asserts that “[a]dverse inferences should be drawn on Respondent for destroying evidence going back more than five years and for the fabrication of evidence.”32 Notably, Petitioner does not identify or allege any specific facts to support its claim of spoliation beyond its conclusory statements that “Respondent destroy[ed] evidence going back more than five years” and engaged in the “fabrication of evidence,” which alone is a basis for denying Petitioner’s motion. Even if Petitioner had provided an adequate factual basis to support its allegation of spoliation, Petitioner’s motion for sanctions is untimely. While a party need not indicate its intent to invoke the spoliation rule in the pleadings, Optimal Chem. Inc. v. Srills, LLC, 2019 USPQ2d 338409, *12-13 (TTAB 2019) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155-156 (4th Cir. 1995), that does not mean that a party may unreasonably delay in bringing a motion for sanctions based on that claim. 31 56 TTABVUE 21-22. 32 56 TTABVUE 21. Cancellation No. 92064361 - 11 - Rule 37 of the Federal Rules of Civil procedure does not establish “any express time limits within which a motion for sanctions must be filed, [but] unreasonable delay may render such a motion untimely.” Long v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008) (citing Brandt v. Vulcan, Inc. 30 F.3d 752, 756 (7th Cir. 1994)); see also Mercy v. Cty. of Suffolk, N. Y., 748 F.2d 52, 56 (2d Cir. 1984). Courts have also found, under their inherent powers, that unreasonable delay in filing a motion for sanctions may render the request untimely. See Clark v. U. S., 2011 U.S. Dist. LEXIS 1871, 2011 WL 66181 at *4 (D. Haw. Jan. 7, 2011). “The timeliness of a motion for sanctions [relating to discovery] depends on such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed.” Long, 561 F. Supp. 2d at 91. Here, Respondent’s responses to Petitioner’s discovery requests were, at the latest, provided to Petitioner by October 20, 2017 as shown on the certificate of service of Respondent’s amended responses to Petitioner’s requests for production of documents.33 However, the discovery period did not close until February 21, 2019.34 Thus, a further 16 months passed before discovery closed, and two more months passed before the opening of Petitioner’s testimony period, during which time Petitioner could have filed a motion for sanctions but did not do so.35 Petitioner instead waited until briefing to raise the issue, which we find to be an unreasonable 33 49 TTABVUE 167 (Petitioner’s first notice of reliance). 34 46 TTABVUE 5 (Board’s Order denying Petitioner’s Motion for Summary Judgment and resetting the relevant discovery and trial dates in the proceeding). 35 Id. Cancellation No. 92064361 - 12 - delay. Petitioner’s motion for sanctions is denied.36 III. The Record The record includes the pleadings, the Registration file under Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following submissions by the parties: A. Petitioner’s Evidence • Notice of reliance on USPTO records from Petitioner’s pending application Serial No. 86968144, including Petitioner’s application and an office action refusing registration based on the Registration;37 • Notice of reliance on Respondent’s admissions to Petitioner’s requests for admission;38 • Notice of reliance on Respondent’s responses to Petitioner’s requests for production of documents;39 • Notice of reliance on Respondent’s responses to Petitioner’s special interrogatory confirming the authenticity of documents produced by Respondent in response to Petitioner’s requests;40 • Notice of reliance on Respondent’s responses to Petitioner’s interrogatories;41 and 36 Even if the motion were timely, the evidentiary record is devoid of a factual basis upon which a claim of spoliation could be based. 37 49 TTABVUE 4-39 (Petitioner’s First Notice of Reliance). 38 Id. at 46-53; 114-121; 153-160. 39 Id. at 61-74; 88-95; 122-138; 161-180 (Petitioner’s First Notice of Reliance). Written responses to requests for production of documents introduced through a notice of reliance are admissible solely for purposes of showing that a party has stated that there are no responsive documents, as Petitioner did for many of the responses. See City Nat'l Bank v. OPGI Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674 n.10 (TTAB 2013) (responses to document production requests are admissible solely for purposes of showing that a party has stated that there are no responsive documents); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036 n.7 (TTAB 2012). We do not consider Respondent’s additional statements contained in those responses, which are not properly of record. 40 49 TTABVUE 100-104; 139-143. 41 Id. at 81-87; 106-113; 145-152. Cancellation No. 92064361 - 13 - • Notice of reliance on the testimony declaration of Scott Shebeck (“Shebeck Decl.”), an owner of Petitioner, with nine exhibits in the nature of Internet webpages, portions of USPTO records of third-party registration files, and a third-party application and TTAB decision related thereto, which are purportedly connected to Respondent’s president, Edward F. Richards.42 B. Respondent’s Evidence • Testimony declaration of Edward F. Richards (“Richards Decl.”), president of Respondent, with thirty-two exhibits;43 • Notice of reliance on Petitioner’s responses to Respondent’s amended interrogatories;44 • Notice of reliance on Petitioner’s responses to Respondent’s amended requests for admission;45 • Notice of reliance on Petitioner’s response to Respondent’s amended requests for production of documents;46 • Notice of reliance on Respondent’s special interrogatory to Petitioner;47 • Notice of reliance on the testimony affidavit of Respondent’s witness, Richard Daniel Leos;48 • Notice of reliance on the testimony affidavit of Respondent’s witness, William D. Shull;49 and • Notice of reliance summarizing and explaining the exhibits filed with the 42 50 TTABVUE 5-11 (Petitioner’s Second Notice of Reliance). 43 52 TTABVUE 2-268. 44 53 TTABVUE 4-51 (Respondent’s First Notice of Reliance). 45 Id. at 52-98. 46 Id. at 99-110 (Exhibit 3). Many of Petitioner’s responses indicated that there were no responsive documents. We do not consider Respondent’s additional statements beyond that indication. See note 23, infra. 47 Id. at 111-115 (Exhibit 4). An unanswered interrogatory, here a special interrogatory seeking confirmation that Petitioner’s documents are authentic, may not be entered into the record through a notice of reliance. Regardless, Petitioner produced no documents. 48 Id. at 116-118 (Exhibit 5). 49 Id. at 119-122 (Exhibit 6). Cancellation No. 92064361 - 14 - Richards Declaration and their purported relevance.50 IV. Entitlement to a Statutory Cause of Action Entitlement to a statutory cause of action is a threshold issue in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com, Inc., 94 USPQ2d at 1945. “A petitioner is authorized by statute to seek cancellation of a mark where it has “both a ‘real interest’ in the proceedings as well as a ‘reasonable’ basis for its belief of damage.” Empresa Cubana, 111 USPQ2d at 1062 (citing ShutEmDown Sports, Inc. v. Lacy, 102 U.S.P.Q.2d 1036, 1041 (TTAB 2012) (quoting Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999)). “And a pending application that has been refused registration based on a likelihood of confusion with a registered mark is sufficient to show that the petitioner seeking to cancel the registered mark is the type of party Congress authorized under 15 U.S.C. § 1064.” Id. (citations omitted). Once a statutory basis for a cause of action is established, a petitioner may rely on any ground set forth in the Trademark Act that negates the respondent’s right to registration. Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 493, 2 U.S.P.Q.2d 2021, 2024 (Fed. Cir. 1987); Estate of Biro v. Bic Corp., 18 USPQ2d 1382, 1385-86 (TTAB 1991) (Once the Petitioner shows “a personal interest in the outcome of the case ... the Petitioner may rely on any ground that negates Respondent's right to the registration sought”). Petitioner introduced evidence that its pleaded application Serial No. 86968144 50 54 TTABVUE (Respondent’s Second Notice of Reliance). Cancellation No. 92064361 - 15 - for the mark TECHNICS, in standard characters, was refused registration based on an asserted likelihood of confusion with Respondent’s TECHNICS mark in the Registration.51 This suffices to show that Petitioner has a real interest in this proceeding and a reasonable basis for its belief of damage. Petitioner has therefore established a right to a statutory cause of action. Empresa Cubana, 111 USPQ2d at 1062; Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982); ShutEmDown Sports, 102 USPQ2d at 1041. V. Abandonment - Applicable Law Because a registration is presumed valid under the law, 15 U.S.C. § 1057(b), a party seeking its cancellation bears the burden of proving abandonment by a preponderance of the evidence. See Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1628 (Fed. Cir. 2009) (citing W. Fla. Seafood v. Jet Rests., 31 F.3d 1122, 1125, 31 USPQ2d 1660 (Fed. Cir. 1994)). If a plaintiff shows three consecutive years of nonuse, it has established a prima facie showing of abandonment, creating a rebuttable presumption that the registrant has abandoned the mark. Noble House Home Furnishings, 118 USPQ2d at 1417 (citing Imperial Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575, 14 USPQ2d 1390, 1393 (Fed. Cir. 1990)). The burden of production (i.e., going forward) then shifts to the respondent to produce evidence that he has either used the mark or that he has intended to resume use (e.g., a convincing demonstration of ‘excusable non-use’ that would negate any intent not to resume use of the mark). The burden of persuasion remains with the plaintiff to prove abandonment by a preponderance of the evidence. 51 49 TTABVUE 4-39 (Petitioner’s First Notice of Reliance, Exhibit A). Cancellation No. 92064361 - 16 - Id. A. Presumption of Abandonment Petitioner argues that there are multiple time periods since issuance of the Registration that give rise to a presumption that Respondent abandoned its TECHNICS mark:52 Respondent’s responses to discovery identify two distinct sequential three consecutive year periods after registration 12/23/2008-12/23/2011 (no records at all) and 12/23/2011-12/22/2014 when there was no known ordinary course of trade between Respondent and potential or actual TECHNICS consumers. … Other consecutive three-year periods with zero claimed use or not more than one shipment per year are the calendar years 2009-2011, 2010-2012, 2011-2013 and 2012-2014 and 2013-2015; the three year period before the Section 8 filing, and the three year period before the bringing of this petition. Respondent concedes in its brief that it “did not use the mark for the years 2012, 2013, 2014 resulting in prima facie evidence of abandonment,”53 and that concession is supported by its interrogatory response indicating there was no sales revenue for goods identified in the Registration during 2012-2014.54 The period of nonuse follows a total of $650 in sales revenue under the mark for all of 2011, the last year of sales before Respondent’s cessation of use.55 “This shifts the burden to Respondent to prove 52 56 TTABVUE 13. 53 57 TTABVUE 20. Respondent denies Petitioner’s assertion that it did not use the mark in the years prior to 2012. 54 49 TTABVUE 108-109 55 There is no evidence regarding the extent of use of the TECHNICS mark before 2011, which Respondent attributes to its document retention policy of retaining documents for only five years. 49 TTABVUE 109. Cancellation No. 92064361 - 17 - it had an intention to resume use of the mark.”56 Notwithstanding Respondent’s concession, we still need to assess whether Respondent presumptively abandoned its mark due to nonuse during the earlier consecutive three-year period of 2009-2011, as argued by Petitioner. If the mark was abandoned by 2011, evidence of Respondent’s use or efforts to resume use after that date would not cure the abandonment. See Lesley Hornby v. TJX Cos., Inc., 87 USPQ2d 1411, 1422 (TTAB 2008) (sales made after a mark had been abandoned “would not retroactively cure her past abandonment.”); Stromgren Supports Inc. v. Bike Athletic Co., 43 USPQ2d 1100, 1112 (TTAB 1997) (evidence of intent to resume use which occurred after abandonment is evidence of a new use which does not cure the abandonment) (citing Cerveceria Centroamericana S.A. v. Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989) (evidence of nonuse between 1977 and 1984 is not rebutted by evidence of an intent to resume use after 1984)). Respondent denies Petitioner’s allegation that Respondent did not use the TECHNICS mark in the years 2007-2011.57 Petitioner, however, argues that (1) it is a “necessity for a real business to keep records,” and that (2) “[t]he type of digital pianos allegedly sold to Respondent, … such as the grand piano in the application, would typically, in the ordinary course of business, be sold from a reputable dealer with a warranty that would require that dealer to keep records.”58 Petitioner argues 56 57 TTABVUE 20. 57 57 TTABVUE 20. 58 56 TTABVUE 13 (referring to the testimony declaration of Petitioner’s owner, Scott Shebeck (“Shebeck Decl.”), 50 TTABVUE 7, ¶ 7)). Though not mentioned by Petitioner in its brief, Mr. Shebeck also testified that such a warranty would typically be a long warranty of Cancellation No. 92064361 - 18 - that “[t]he lack of records by Respondent from before 2011 indicates a lack of a bona fide business and the lack of any intent to resume.”59 Petitioner’s argument omits mention of Respondent’s statements made in response to Petitioner’s discovery requests that its “[r]ecords are not kept for 10+ years” and/or that “[r]ecords are typically kept for 5 years.”60 Respondent argues that “it is [its] normal business practice to keep business records for five years,” and that Respondent “cannot be expected to produce records or documents not in its possession, and negative conclusions or adverse inferences cannot be asserted by Petitioner from Respondent’s lack of old records.”61 “As the Supreme Court has noted, ‘[d]ocument retention policies, which are created in part to keep certain information from getting into the hands of others …, are common in business.’” Micron Tech., Inc., 98 USPQ2d at 1693 (quoting Arthur Andersen LLP v. U. S., 544 U.S. 696, 704 (2005) (internal citation and quotation marks omitted)).62 Based on the foregoing, Petitioner has failed to prove Respondent’s nonuse of its 10-12 years. Id. However, Mr. Shebeck’s self-serving statement has limited probative value in the absence of corroborating evidence. Respondent disputes that statement by showing that Mr. Shebeck sells Dynatone branded digital pianos through a different company, Piano Marketing Group (“PMG”) that have only a 3-year warranty. 1 TTABVUE 3 (Petition to Cancel); 52 TTABVUE 23-24, 219-22, 265, Richards Decl. ¶ 56 (attaching a copy of webpages advertising the sale of Dynatone digital pianos distributed by PMG listing an email address for Mr. Shebeck, an address for the company that is the same as Petitioner’s address of record in this proceeding). 59 56 TTABVUE 15. 60 49 TTABVUE 108-111, 125, 147-150, 64. 61 57 TTABVUE 15. 62 As noted above in denying Petitioner’s motion for sanctions based on spoliation, apart from being untimely, Petitioner did not present an adequate factual basis to make out a claim of spoliation. We therefore have no factual basis to draw any adverse inferences based on the lack of documentation discarded pursuant to a business record retention policy or practice. Cancellation No. 92064361 - 19 - mark TECHNICS for a consecutive three-year period prior to 2012. However, the evidence does establish a prima facie case of abandonment based on at least three consecutive years of nonuse of the mark for the three-year period between December 27, 2011 (the date of the last sale before Respondent’s admitted cessation of use) and April 14, 2015 (the first sale following cessation of use).63 Accordingly, the burden of going forward and rebutting this prima facie showing shifts to Respondent. B. Respondent’s Evidence of Intent to Resume Use To rebut the prima face case of abandonment, Respondent must produce evidence establishing by a preponderance of the evidence that during the period of nonuse, it maintained an intent to resume use of the mark.” See Imperial Tobacco, 14 USPQ2d; Executive Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1198-99 (TTAB 2017) (in assessing evidence of a Registrant’s intent to resume use in this context, the Registrant’s “plans must be to resume commercial use of a mark within the ‘reasonably foreseeable future”’) (quoting Hornby v. TJX Cos., 87 USPQ2d 1411, 1421-22 (TTAB 2008) (internal quotation omitted)). Subsequent use may also be probative of whether the registrant intended to commence use during a previous period of nonuse. Crash Dummy Movie, LLC v. Mattel, Inc., 601 F.3d 1387, 94 USPQ2d 1315, 1317 (Fed. Cir. 2010) (Board may consider evidence and testimony regarding Mattel’s practices that occurred before or after the three-year statutory period of nonuse to infer Mattel’s intent to resume use during the three-year period); Miller Brewing Co. v. Oland’s Breweries, 548 F.2d 349, 63 52 TTABVUE 8, 127 (Richards Decl., Exhibits A and M). Cancellation No. 92064361 - 20 - 352, 192 USPQ 266, 267-68 (CCPA 1976). Such evidence should temporally and logically link the later use to the prior nonuse, such that an inference can be drawn regarding the intent to resume use during the period of nonuse; otherwise, mere evidence of subsequent use may not suffice to establish that the registrant intended to resume use. Parfums Nautee Ltd. v. Am. Int’l Indus., 22 USPQ2d 1306, 1310 (TTAB 1992). Respondent contends that its “temporary cessation” of the TECHNICS mark during 2012-2014 was “justifiable and reasonable.”64 Specifically, Respondent argues it “had reasonable grounds for the suspension of use” based on “issues of quality from suppliers.”65 As Respondent’s president, Mr. Richardson, explains: I became aware of quality issues with my keyboard - digital piano supplier Worlde in approximately 2010. It wasn’t an issue of breakage or failure, it was that the musical and playability qualities were lacking. As a result I began to explore other suppliers. In 2011 Respondent purchased product from another China supplier, Zhejiang Youyi Electronic Co., Ltd. (“Youyi”), and exhibited these digital piano products with the TECHNICS mark at the January 2011 NAMM Show in Anaheim, California …. However, Youyi’s quality wasn’t any improvement over the previous supplier Worlde. Therefore, Respondent had no immediate solution to the disappointing product quality from China at that time. This is when the period of nonuse began, in 2012.66 Respondent insists that its “intention to resume use was constant and demonstrable through consistent efforts to find a new path forward to offer instruments of improved quality, and the intention was acted upon by Respondent” 64 57 TTABVUE 10. 65 52 TTABVUE 8, 127 (Richards Decl., Exhibits A and M). 66 Id. at 245. Cancellation No. 92064361 - 21 - as shown by the following activities:67 • Renewing the domain technicspiano.com in 2012 and 2016;68 • Continuing to display TECHNICS signage at Respondent’s Chicago warehouse office;69 • Conducting extensive research into developing new digital keyboard products in 2012;70 • Making various extended trips to China and Indonesia between 2012 and 2017 to research opening Respondent’s own factory, spending over $40,000 in the process.71 • Entering into a trademark licensing agreement in 2014 with Chinese supplier Foshan Zihao Piano Co., Ltd. for pianos to be sold under a different trademark;72 • Attending the Music China trade show in Shanghai, China every October from 2012-2018;73 • Ordering two improved quality OEM pianos with the TECHNICS mark from Chinese supplier Hangzhou Worlde Music Electronic Co., Ltd. (“Worlde”) on January 22, 2015, and selling one of them in the U.S. on April 4, 2015;74 • Signing a new Supplier Agreement with Worlde in March 2016 that included quality and brand promotion provisions (exhibiting TECHNICS products at NAMM trade shows beginning in 2017);75 67 Id. at 20. 68 52 TTABVUE 245-246 (Richards Decl. ¶ 7 and attached Exhibits B and C, at 9-29). 69 Id. 70 Id. at 246-247 (Richards Decl. ¶ 8, and attached Exhibits D and E, at 30-52). 71 Id. at 247 (Richards Decl. ¶ 9 and attached Exhibits F & G, at 53-85). 72 Id. at 247-248 (Richards Decl. ¶ 10 and attached Exhibit H, at 86-109). 73 Id. at 120-123, 249 (Richards Decl. ¶ 13 and attached Exhibit K). 74 Id. at 124-127, 249 (Richards Decl. ¶ 14 and attached Exhibits L and M). 75 Id. at 128-131, 249, 250 (Richards Decl. ¶ 14 and attached Exhibit N). Cancellation No. 92064361 - 22 - • Returning improved quality TECHNICS products to the market place by exhibiting them at NAMM trade shows and making eleven sales in 2017;76 • Opening its own factory in China in 2017;77 • Exhibiting TECHNICS products at the annual NAMM Show in Anaheim, California in January 2017-2019;78 and • Purchasing internal components for digital pianos in 2019 from a new non- Chinese source that Respondent met at the 2019 NAMM Show exhibit, and completing a first prototype of a TECHNICS digital piano with internal components sourced that supplier.79 This variety of materials and activities offered by Respondent, coupled with Respondent’s argument, which follows a somewhat syllogistic pattern, appear, at first blush, to suggest Respondent’s intent to resume use of the TECHNICS mark. However, after a careful analysis thereof and placing Respondent’s activities in their proper perspective in light of the actual details provided by Respondent, the probative value thereof begins to diminish until it reaches a point where we are unable to accept it as persuasive evidence that Respondent’s efforts relate to the TECHNICS mark in this case, and thus that Respondent intended to resume use of that mark. We first turn to Respondent’s activities during the period of nonuse (2012-2014). As noted above, if Respondent cannot demonstrate the existence of an intent to resume use during that period, either through direct or circumstantial evidence, the mark is abandoned and any subsequent use would be considered new use. 76 Id. at 135-139, 250, (Richards Decl. ¶ 17 and Exhibit P). 77 Id. at 140-141, 250-251 (Richards Decl. at ¶ 18 and Exhibit Q). 78 Id. at 132-134, 148-153, 250 (Richards Decl. at ¶¶ 16 and 20 and Exhibits O and S). 79 Id. at 154-157, 252 (Richards Decl. at ¶ 21 and Exhibit T). Cancellation No. 92064361 - 23 - “Abandonment cannot be cured by subsequent readoption of a mark.” Linville v. Rivard, 26 USPQ2d 1508, 1513 (TTAB 1993), rev’d on other grounds, Rivard v. Linville, 11 F.3d 1074, 31 USPQ2d 1218 (Fed. Cir. 1993) (unpublished); see also First Nat’l Bank of Omaha v. Autoteller Sys. Serv. Corp., 9 USPQ2d 1740, 1743 (TTAB 1988) (“abandonment [cannot] be reversed by subsequent readoption of a mark.”). 1. Maintenance of Domain Name Respondent’s mere renewal in April 2012 of the domain name technicspiano.com, is not probative of Respondent’s intent to resume use of the TECHNICS mark. This is particularly true in view of the absence of any evidence showing the domain to be anything but a “parked” domain or placeholder since it was first registered on April 19, 2008 along with five other domain names.80 Cf. Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1727 (TTAB 2010) (registration of domain names did not evidence bona fide intent to use mark where the applicant had “never taken any steps to construct or operate a website under” the domains). 2. Display of Signage in Respondent’s Warehouse Respondent’s claim that it “always kept signage displaying the TECHNICS mark in its warehouse office”81 is also not probative of an intent to resume use in the absence of evidence indicating that consumers or potential consumers had an opportunity to view the sign in connection with the goods. Apart from the evidence appearing to be a digital photo and not a copy of an actual sign,82 Respondent 80 52 TTABVUE 10-14 (Richards Decl., Exhibit B). 81 Id. at 245-246 (Richards Decl. ¶ 7). 82 Id. at 29 (Richards Decl., Exhibit C). Cancellation No. 92064361 - 24 - provided no evidence that its Chicago warehouse was ever used as a showroom for the goods or that that any customers or potential customers ever visited it. See e.g., Exec. Coach Builders, 123 USPQ2d at 1198 (finding the appearance of the mark on interior signs, plaques, and memorabilia displayed inside Opposer's plant merely reflective of the historical use of that mark on cars); cf. Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 64 USPQ2d 1353, 1354-55 (11th Cir. 2002) (finding evidence of an outdoor sign displayed at a radio station’s headquarters “where listeners come to collect promotional awards,” as part of the station’s many forms of advertising and promotion). Additionally, presuming the display is a copy of an actual sign, there is no evidence regarding where the sign was placed in the warehouse, as it could have been in a back room or somewhere else not visible to customers. Furthermore, it is not unusual for signs to be left over when a brand is discontinued, which may be kept for historical purposes. Under the circumstances, the continued display of the sign in this manner is more consistent with nostalgia than it is with an intent to resume use of the mark. 3. 2012 Research into Developing New Digital Keyboards Respondent asserts that it conducted “extensive research into developing new digital keyboard products in 2012” as part of its ongoing intent to resume use of the TECHNICS mark.83 Mr. Richardson explains as follows:84 I spent the month of May 2012 in the Boston area where I investigated and located several engineers formerly employed by the Kurzweil company[,] … a professional grade keyboard company …. I had several 83 57 TTABVUE 20. 84 52 TTABVUE 246 (Richards Decl. ¶ 8). Cancellation No. 92064361 - 25 - in-person meetings with these engineers regarding developing new digital keyboard products. … After the in-person meetings and discussions in Boston, Bob Chidlaw, who was the chief scientist and team leader at Kurzweil, put together a synopsis of what he felt was required to develop a new digital keyboard product. … Unfortunately, these talented engineers were all involved in other projects, businesses, and employments that went in different directions, had been out of the fast-developing digital keyboard business for too long, and reassembling the team of engineers to create new digital keyboard-piano products ultimately was not feasible. Attached to his declaration are the referred-to synopsis, and emails with several of the engineers leading up to that synopsis.85 The statements are supportive of Respondent’s assertions that it was researching the possibility of developing better quality digital keyboard products in or around May 2012, but do not relate at all to a digital keyboard provided under the TECHNICS mark, or to any mark for that matter. Nor does Mr. Richards mention the TECHNICS mark in his testimony related to that evidence. Respondent obviously hopes that we will infer from the evidence that Mr. Richards’ Boston activities related to the TECHNICS mark. However, that evidence is entirely devoid of any mention of the mark, a surprising omission if these activities were directed to the resumption of its use. Because a prima facie case of abandonment has been established, the onus is on Respondent to rebut that prima facie case with persuasive evidence that these activities pertained to resumption of use of the 85 Id. at 37-52 (Exhibits D and E). We consider the statements for the fact that they were made, but to the extent Respondent relies on them for the truth of the matters asserted, they are hearsay. See, e.g., Daniel J. Quirk, Inc. v. Vill. Car Co., 120 USPQ2d 1146, 1151 n. 27 (TTAB 2016); Sunnen Prods. Co. v. Sunex Int’l Inc., 1 USPQ2d 1744, 1746 n.9 (TTAB 1987); Flowers Indus. Inc. v. Interstate Brands Corp., 5 USPQ2d 1580, 1582 n.4 (TTAB 1987)). Cancellation No. 92064361 - 26 - TECHNICS mark rather than Respondent’s general business, and these activities, without more, do not provide such proof. 4. Respondent’s Activities Abroad Mr. Richards discusses his various trips to China and Indonesia beginning in 2012 to research the possibility of opening Respondent’s own factory, in which he spent over $40,000 in the process.86 Mr. Richardson also provided a list of his purported travels including, relevant to the period of nonuse, travel to China for four months during October 2012 - February 2013; three months during October 2013 - December 2013; and two months during April 2014 - June 2014 and October 2014; for a total of approximately 9 months spent in China during the period of nonuse.87 According to the listing, Mr. Richards’ activities during that time included attending the Music China trade show each year; visiting three cities regarding the possibility of opening a factory; and signing a trademark licensing agreement for another mark (A. B. Chase) in another city.88 Further, Mr. Richard provided several email exchanges between himself and Chinese companies during this time period on the subjects of the availability of wood supplier and potential piano factory locations or workshops that Respondent could use.89 As with his Boston activities, the evidence of record fails to show that Mr. Richard’s travels to, and activities within, China during the period of nonuse were 86 Id. at 247-248 (Richards Decl. ¶¶ 8-9). 87 Id. 54 (Exhibit F). 88 Id. 89 Id. at 56-67 (Exhibit G). Cancellation No. 92064361 - 27 - related in any manner to Respondent’s purported intent to resume use of the mark TECHNICS in the United States as opposed to his business generally. Not a single piece of evidence or testimony links his activities in China to the TECHNICS mark. Again, in the face of presumed abandonment based on more than three consecutive years of nonuse, Respondent must come forward with more persuasive evidence of its activities specifically related to the TECHNIC mark to show it maintained an intent to use that mark. While there is no reason to doubt Mr. Richards’ desire since 2012 to have a China factory for the production of keyboard instruments, visiting three Chinese cities to look at potential factory workspace over the course of three years is consistent with a general desire to produce its products in its own factory in China, but does not show an intent to resume use of the TECHNICS mark. Notably, when Respondent resumed small-scale sales under the TECHNICS mark in 2015, it was not the product of its own factory, but rather that of its previous supplier Worlde.90 Although Respondent ultimately established a factory in China some years later, in January 2019, Mr. Richards did not testify that it produced TECHNICS products; he testified only that “the first acoustic pianos were sold in China from this rented factory.”91 90 52 TTABVUE 125-131, 249 (Richards Decl., ¶14; Exhibits L-N). Worlde is the same Chinese supplier whose quality Mr. Richards found unacceptable in 2011, which led to Respondent’s discontinuation of use for at least three years. Considering the evidence overall, we find that Respondent’s decision to purchase two digital pianos in January 22, 2015 for sale under the TECHNICS mark from his previously disappointing supplier because during the “three years from 2012-2015 it appeared to [Mr. Richards] that product quality of digital keyboards in China was improving, is reflective of a decision to readopt a mark that was already abandoned, and not reflective of his intent to resume use when use was first discontinued. 91 Id. at 250-251 (Richards Decl., ¶ 18). Cancellation No. 92064361 - 28 - Respondent’s activities in China do not demonstrate an intention to resume use of the TECHNICS mark in the United States within the reasonably foreseeable future. See Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, *46, n.53 (TTAB 2019) (quoting Exec. Coach Builders, 123 USPQ2d at 1198-99 (in assessing excusable nonuse in this context, “plans must be to resume commercial use of a mark within the ‘reasonably foreseeable future’” (internal citations omitted)).92 Indeed, the only mention of any trademark relating to activities in China during the period of nonuse was with regard to the purported signing of a licensing agreement with a Chinese company “for use of an American piano trademark, A.B. Chase, for use in China, through a sister company of ours called Wrightwood Enterprises.”93 It is common knowledge that some U.S. companies have factories in China or other countries such as Indonesia that may be similarly situated from a production cost perspective. However, that does not lead to an inference of an intent to provide goods in the U.S. under a particular mark. At most, the evidence reflects Respondent’s desire during that period to open a factory in China for its general production activities for what one of Respondent’s retailers called Mr. Richards’ “piano distribution companies” unrelated to any particular trademark.94 Nor is Mr. Richards’ attendance at a Chinese trade show (alleged to be “the world’s 92 The same can be said with respect to Mr. Richards’ claims about his travel to Indonesia in November 2015 to visit piano factories there, which “quickly proved [Indonesia] to be an unacceptable location as the infrastructure and transportation is not as well developed as China.” Id. at 248, ¶ 11. 93 Id. at 247 (Richards Decl. ¶ 10). 94 53 TTABVUE 117-118 (Declaration of Richard Daniel Leos (“Leos Decl.”), ¶ 6). Cancellation No. 92064361 - 29 - largest trade show” for pianos and keyboards)95 during the period of nonuse, in the absence of any details related to the TECHNICS mark (or any mark), probative of Respondent’s alleged continuing intent to resume use of the mark. A trade show is “a large exposition to promote awareness and sales of especially new products within an industry.”96 Mr. Richards was obviously not promoting awareness or sales of goods provided under the TECHNICS mark, which was not then in use. Regardless, Mr. Richards provides no explanation at all regarding the purpose of his visits to these shows. Respondent also provided a declaration from Mr. Richard Daniel Leos, someone who has known Mr. Richards for almost 20 years, and has been a dealer of Respondent’s TECHNICS digital pianos for almost 10 years.97 Notably, though Mr. Leos discussed both the earlier and current models of Respondent’s digital pianos, there is no mention of Mr. Richards’ ever telling him of a desire to resume use of the TECHNICS mark after sale of the earlier models was discontinued. Considering that Mr. Leos only became a dealer of those goods in 2011, the last year before sales ceased (during which Respondent’s revenue was only $650), and that three years passed before he would have a further opportunity to stock those goods, his silence regarding any such discussions is telling in view of Respondent’s claim that it was actively 95 Id. at 249 (Richards Decl. ¶ 13). 96 https://www.merriam-webster.com/dictionary/trade%20show. The Board may take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). 97 53 TTABVUE 118. Cancellation No. 92064361 - 30 - focused on resuming use of the mark. C. Conclusion Summarizing Petitioner’s evidence during the period of undisputed nonuse, we have the following three points of evidence: (1) Maintenance of a domain name with no evidence it was ever anything but a parked domain since its registration in 2008; (2) Mr. Richard’ testimony that Respondent continued to have a sign somewhere in its warehouse without evidence consumers ever visited that warehouse or could view the sign in connection with the offering of goods;98 and (3) Generalized preliminary inquiries into the development of new digital keyboard technologies with Boston engineers and various activities in China and Indonesia by Respondent’s president, Mr. Richards, during the period of nonuse, none of which is connected to the TECHNICS mark, even by testimony; the TECHNICS mark is not mentioned even once in the 73 pages of evidence regarding those activities, or in Mr. Richards’ 25-page testimony declaration describing those activities. In the absence of persuasive supporting evidence, Respondent’s protestations regarding its ongoing intent to resume use of the mark are not determinative.99 Imperial Tobacco, 14 USPQ2d at 1394 (“In every contested abandonment case, the respondent denies an intention to abandon its mark; otherwise there would be no contest.”); see also Cerveceria Modelo S.A. de C.V. v. R.B. Marco & Sons Inc., 55 USPQ2d 1298 (TTAB 2000). Considering the evidence in its totality, we find that Respondent’s evidence falls short of the persuasive evidence needed to rebut the presumption that the TECHNICS mark was abandoned at the end of 2011. Respondent’s sale of goods in 98 As mentioned earlier, the sign appears to be a digital image, not an actual sign. 99 57 TTABVUE 10-12, 20-22. Cancellation No. 92064361 - 31 - April 2015 constituted a new and separate use or readoption of the mark that did not cure the abandonment. Linville, 26 USPQ2d at 1513. Accordingly, the mark was abandoned. In view of this finding, which is sufficient to sustain the opposition, we do not reach Opposer’s claim of fraud. See, e.g., Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1064 (TTAB 2017). Decision: The petition to cancel is granted on the ground of abandonment.100 The registration will be cancelled in due course. 100 As noted earlier, the Board entered judgment before trial as to the issue of abandonment for the other goods originally identified in the Registration.