Pura Vida Vitamins, LLCv.Golden Isles Medical, Inc.

Trademark Trial and Appeal Board

Jul 26, 2021

92073371 (T.T.A.B. Jul. 26, 2021)

kb
July 26, 2021

Cancellation No. 92073371

Pura Vida Vitamins, LLC

v.
Golden Isles Medical, Inc.

Before Thurmon, Deputy Chief Administrative Trademark Judge,
and Bergsman and Pologeorgis, Administrative Trademark Judges.

By the Board:

This proceeding comes before the Board on Respondent’s motion, filed September
2, 2020, for summary judgment. The motion is fully briefed.
We have considered the parties’ briefs and evidence, but address the record on
summary judgment only to the extent necessary to set forth our analysis and findings,
and do not repeat or address all of the parties’ arguments or evidence. Guess? IP
Holder LP v. Knowluxe LLC, 116 USPQ2d 2018, 2019 (TTAB 2015).
I. Background
Respondent owns Registration No. 4016044 for the standard character mark
VIDAPURA for the following goods in International Class 5:
Calcium supplements; Dietary and nutritional supplements;
Dietary beverage supplements for human consumption in liquid
and dry mix form for therapeutic purposes; Dietary food
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
General Email: TTABInfo@uspto.gov
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Cancellation No. 92073371

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supplements; Dietary supplemental drinks; Dietary supplements;
Dietary supplements for controlling cholesterol; Dietary
supplements for human consumption; Food supplements; Herbal
supplements; Meal replacement and dietary supplement drink
mixes; Mineral food supplements; Mineral nutritional
supplements; Mineral supplements; Natural herbal supplements;
Natural supplements for treating candida; Natural supplements
for treating depression and anxiety; Nutraceuticals for use as a
dietary supplement; Nutritional supplement in the nature of a
nutrient-dense, protein-based drink mix; Nutritional
supplements; Powdered fruit-flavored dietary supplement drink
mix; Powdered nutritional supplement drink mix; [and] Protein
supplements.1

Petitioner filed a petition to cancel Respondent’s mark on January 28, 2020,
alleging the single claim of abandonment. 1 TTABVUE.2 Respondent filed an aswer
denying the salient allegations of the petition to cancel, and alleging as an affirmative
defense that the petition to cancel fails to state a claim upon which relief can be
granted. 4 TTABVUE.3
On September 2, 2020, Respondent filed a motion seeking summary judgment on
Petitioner’s abandonment claim. 11 TTABVUE. In lieu of a response, Petitioner filed

1 The underlying application was filed on February 3, 2011 pursuant to Trademark Act
Section 1(a), 15 U.S.C. § 1051(a). Respondent alleged first use as of November 1, 2007, and
use in commerce as of February 1, 2008. The registration issued on August 23, 2011. The
USPTO accepted and acknowledged Respondent’s combined declaration under Sections 8 and
15 of the Trademark Act, 15 U.S.C. §§ 1058 and 1065.
2 The last paragraph of Petitioner’s petition to cancel appears to contain a copy-and-paste
error, inasmuch as it seeks cancellation of goods that are not listed in the involved
registration. See 1 TTABVUE 7.
3 Failure to state a claim is not a true affirmative defense because it relates to the
insufficiency of the plaintiff’s pleading, rather than being an assertion of a defense to a
properly pleaded claim. See Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc.,
60 USPQ2d 1733, 1738 n.7 (TTAB 2001). As such, Respondent’s purported “affirmative
defense” of failure to state a claim is stricken from Respondent’s pleading under Fed. R. Civ.
P. 12(f).
Cancellation No. 92073371

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a motion for discovery pursuant to Fed. R. Civ. P. 56(d). 14 TTABVUE. On January
30, 2021, the Board denied Petitioner’s motion for Rule 56(d) discovery and allowed
Petitioner an additional thirty days to respond to the merits of Respondent’s motion
for summary judgment. 16 TTABVUE. Petitioner filed a timely response to the
motion for summary judgment, 17 TTABVUE, and Respondent filed a reply.
18 TTABVUE.
II. Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute with respect to any material fact, thus allowing 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 Am. 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 must be viewed in the light most favorable to
the non-moving party, and all justifiable inferences must be drawn from the
undisputed facts in favor of the non-moving party. See Lloyd’s Food Prods. Inc. v. Eli’s
Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir. 1993); Opryland USA, 23
Cancellation No. 92073371

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USPQ2d at 1472. We may not resolve disputes as to material facts and, based
thereon, decide the merits of the proceeding. Rather, we may only ascertain whether
any material fact is genuinely disputed. See Lloyd’s Food Prods., 25 USPQ2d at 2029;
Olde Tyme Foods, 22 USPQ2d at 1542; Meyers v. Brooks Shoe Inc., 912 F.2d 1459, 16
USPQ2d 1055, 1056 (Fed. Cir. 1990) (“If there is a real dispute about a material fact
or factual inference, summary judgment is inappropriate; the factual dispute should
be reserved for trial.”).
III. Decision
A mark is abandoned “[w]hen its use has been discontinued with intent not to
resume such use.” 15 U.S.C. § 1127. For purposes of abandonment, “use” of a mark
means “use in commerce,” which is defined as:
the bona fide use of a mark in the ordinary course of trade, and not made
merely to reserve a right in a mark.... [A] mark shall be deemed to be in
use in commerce -- (1) on goods when -- (a) it is placed in any manner on
the goods or their containers or the displays associated therewith or on
the tags or labels affixed thereto, or if the nature of the goods makes
such placement impracticable, then on documents associated with the
goods or their sale, and (b) the goods are sold or transported in
commerce[.]

Id. Thus, there are two elements to a non-use abandonment claim: non-use of a mark
and intent not to resume use. Exec. Coach Builders, Inc. v. SPV Coach Co.,
123 USPQ2d 1175, 1180 (TTAB 2017); see also Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1131 (Fed. Cir. 2015).
Because registrations are presumed valid under Section 7(b) of the Trademark
Act, 15 U.S.C. § 1057(b), the party seeking cancellation based on abandonment bears
Cancellation No. 92073371

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the burden of proving a prima facie case by a preponderance of the evidence. See On-
Line Careline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1476 (Fed.
Cir. 2000); Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021,
13 USPQ2d 1307, 1310 (Fed. Cir. 1989); Quality Candy Shoppes/Buddy Squirrel of
Wisconsin Inc. v. Grande Foods, 90 USPQ2d 1393, 1393 (TTAB 2007). However,
because Respondent is the party moving for summary judgment, Respondent has the
initial burden of establishing that there is no genuine dispute that its use of the
involved mark has not been discontinued or, if such use has been discontinued, that
there is no genuine dispute that it has no intent not to resume such use. See 15 U.S.C.
§ 1127.
Respondent asks us to find that there is no genuine dispute of material fact that
it did not discontinue use of VIDAPURA in connection with the goods listed in its
subject Registration No. 4016044. Respondent relies on the declaration of its owner
and founder, Dr. Anna Cabeca, who testifies that Respondent sold its “flagship
product, a supplement including the ingredient maca, on which the VIDAPURA mark
is affixed and has always been affixed[,]” continuously since 2008. 11 TTABVUE 16.
Dr. Cabeca provides estimated gross sales revenue for “products bearing the mark
VIDAPURA” for the years 2008 through 2014, and estimated number of units of
“products sold bearing the VIDAPURA mark” from 2015 through July 2020. Id. at 18.
Attached to Dr. Cabeca’s declaration are redacted sample invoices for the maca
product from 2013-2019 (id. at 21-33), and images of packaging and labels for the
maca product used during different time periods (id. at 35-50). With regard to
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Respondent’s intent not to abandon its mark, Dr. Cabeca states that Respondent
“never had any intention to discontinue its use” of the mark on its products. Id. at 19.
In response, Petitioner argues that Respondent does not prominently display the
mark VIDAPURA on its website, and that “Vidapura has not appeared on the front
of the packaging [of Respondent’s product]” since 2015, has never appeared with a
‘tm’ or ® designation while other marks have, and has consistently appeared with a
‘distributed by’ qualifier.” Id. at 5-6. With regard to Respondent’s invoices, Petitioner
argues that they do not identify the selling or purchasing party, are sporadic, and
show sale of only a single product, rather than the range of products identified in the
registration. Id. at 8-9.4 Petitioner contends that the totality of the evidence suggests
that Respondent is only making “token use” of its registered mark. Id. at 7. With its
response, Petitioner submitted printouts of pages from Respondent’s websites.
17 TTABVUE 17-81.
In reply, Respondent argues that its sales of the maca product constitute sales of
each of the goods in the registration. 18 TTABVUE 6-7. In support thereof, it attaches

4 To the extent Petitioner also objects to Dr. Cabeca’s declaration as “self-serving,” the Board
has long recognized that declarations submitted on summary judgment may be self-serving,
but as long as the declaration is not wholly conclusory and unaccompanied by credible factual
support, the Board may consider it. See Paris Glove of Canada, Ltd. v. SBC/Sporto Corp.,
84 USPQ2d 1856, 1864 n.8 (TTAB 2007). See also TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (“TBMP”) § 528.05(b) (2021) and authorities cited therein. However,
the Board will not presume missing facts, and non-specific facts in declarations are not
sufficient to support or undermine a claim. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-
89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
Cancellation No. 92073371

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a printout from the website ,5 that purports to list “Maca
Nutritional Facts.”
On the record, we find no genuine dispute of material fact that Respondent has
continuously used its registered mark on some, but not all, of the goods in the
registration. There is no genuine dispute that Respondent has continuously sold the
product known as “Mighty Maca,”6 and that this product bore the mark VIDAPURA,
in the form below or in a form similar thereto, on the packaging:7

We discern no genuine dispute of material fact that the display of the VIDAPURA
mark on the packaging of Respondent’s maca product constitutes trademark use.
Contrary to Petitioner’s contention, there is no requirement that a mark be used with
a “tm” or “®” designation to be a trademark. See Luvera v. Pepperidge Farm, Inc.,
186 USPQ 302 (TTAB 1975). Further, a mark need not appear as the only mark – nor
even the most prominent mark – on the packaging in order to constitute trademark
use. See Gen. Foods Corp. v. Ito Yokado Co., Ltd. 219 USPQ 822, 824 (TTAB 1983)
(“Nothing in the Trademark Act precludes an owner from using more than one

5 It is unclear if this website is published by Respondent or a third party.
6 Prior to 2013, the product was called “Mighty Maca Greens.” 11 TTABVUE 17.
7 Inasmuch as Respondent’s registration is for the standard character mark, the variations
as to how the mark was displayed on different packaging, in terms of style, font, size, and
color, make no distinction. See Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1256 (Fed. Cir. 2011) (“‘Standard character’ or ‘typed’ registrations are
federal mark registrations that make no claim to any particular font style, color, or size of
display and, thus, are not limited to any particular presentation.”).
Cancellation No. 92073371

8
trademark on a product and each may be separately registered and separately
protected. . . Nor is there anything in our jurisprudence which obligates a trademark
owner, in order to avoid abandonment of its registered mark, to use the mark by
itself.”). Indeed, “it is well established that a product can bear more than one
trademark, that each trademark may perform a different function for consumers and
recipients of the product, and that each can be registered providing the mark as used,
creates a separate and distinct impression in and of itself and serves to identify and
distinguish the product as it is encountered by consumers in the normal marketing
milieu for such goods.” Amica Mutual Ins. Co. v. R. H. Cosmetics Corp.,
204 USPQ 155, 161 (TTAB 1979). Nor does the Trademark Act require that the mark
be used in advertising materials or on Respondent’s website; all that is required is
that the mark be “placed in any manner on the goods or their containers or the
displays associated therewith or on the tags or labels affixed thereto . . . and (b) the
goods [be] sold or transported in commerce.” 15 U.S.C. § 1127.
Further, to the extent Petitioner argues that Respondent’s sales were too sporadic
to demonstrate bona fide use in commerce, it is well-established that intermittent
sales and small inventory do not necessarily imply abandonment, and that there is
no rule of law that the owner of a trademark must reach a particular level of success,
measured either by the size of the market or by its own level of sales, to avoid
abandoning a mark. Person’s Co. v. Christman, 900 F.2d 1565, 14 USPQ2d 1477,
1481-82 (Fed. Cir. 1990).8

8 To the extent Petitioner also argues that Respondent’s invoices are somehow altered and do
not show arm’s length transactions, Petitioner has not put forth any evidence to support this
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For the foregoing reasons, there is no genuine dispute of material fact that
Respondent has not abandoned its VIDAPURA mark in connection with its maca
product.
Further, there is no genuine dispute of material fact that Respondent’s sales of
the maca product constitute sales of the following goods identified in the involved
registration:
“dietary and nutritional supplements;” “dietary beverage supplements
for human consumption in . . . dry mix form for therapeutic purposes;”
“dietary food supplements;” “dietary supplements;” “dietary
supplements for human consumption;” “food supplements;” “herbal
supplements;” “dietary supplement drink mixes;” “natural herbal
supplements;” “nutraceuticals for use as a dietary supplement;”
“nutritional supplements;” and “powdered nutritional supplement drink
mix.”
See 11 TTABVUE 35-47 (images of the maca product packaging and labels identifying
the product as a dietary supplement, and providing instructions for its consumption
by humans).
In reaching this conclusion, we take judicial notice of the definition of “dietary
supplements” as “[t]he wide assortment of minerals, vitamins, and sundry herbs that

contention. See Zheng Cai, d/b/a Tai Chi Green Tea Inc. v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (“Attorney argument is no substitute for
evidence.”) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir.
2005)). In any event, even if we do not consider the invoices, Dr. Cabeca’s unrefuted
declaration, and images of the labels attached thereto, establish Respondent’s continuous use
of the VIDAPURA mark on its maca product.
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are taken as nutritional supplements to regular food.” DICTIONARY.COM UNABRIDGED,
based on THE NEW DICTIONARY OF CULTURAL LITERACY, THIRD ED.,
https://www.dictionary.com/browse/dietary-supplement (last visited July 26, 2021).
We also take judicial notice of the definition of “maca root” as “a plant native to
Peru which is used as medicinal herb.” MACMILLAN DICTIONARY,
https://www.macmillandictionary.com/us/dictionary/american/maca-root (last visited
July 26, 2021).
Finally, we take judicial notice of the definition of “nutraceutical” as “a bioactive
compound occurring as a food component, additive, or product, including vitamins,
dietary fiber, herbal extracts, carotenoids, and probiotics: nutraceuticals are said to
promote health and well-being, allegedly helping in the prevention and treatment of
disease.” DICTIONARY.COM UNABRIDGED, based on RANDOM HOUSE UNABRIDGED
DICTIONARY, https://www.dictionary.com/browse/nutraceutical (last visited July 26,
2021). See University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213
USPQ 594, 596 (TTAB 1982) (the Board may take judicial notice of dictionary
evidence), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); Boston Red Sox
Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008) (“The Board
may take judicial notice of online reference works which exist in printed format or
have regular fixed editions.”).
Respondent’s broad identification of goods such as “dietary and nutritional
supplements,” “dietary food supplements,” “dietary supplements,” etc. are broad
enough to encompass Respondent’s maca-based products that, as noted above, are
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defined as a medicinal herb that may be used as a nutritional supplement. See In re
Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018) (where the goods in
an application or registration are broadly described, they are deemed to encompass
all the goods of the nature and type described therein); In re Hughes Furniture Indus.,
Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”).
We note furthermore that Petitioner does not dispute that sales of Respondent’s
maca product constitutes sales of these goods. See 17 TTABVUE 9 (arguing that there
is no evidence that the Mighty Maca product is a “Calcium Supplement,” a “Meal
Replacement,” or a “Protein Supplement.”).
We find, however, that the evidence of record raises genuine disputes of material
fact as to Respondent’s use of its mark in connection with the following goods in the
registration:
“calcium supplements;” “dietary beverage supplements for human
consumption in liquid . . . form for therapeutic purposes;” “dietary
supplemental drinks;” “dietary supplements for controlling cholesterol;”
“meal replacement . . . drink mixes;” “mineral food supplements;”
“mineral nutritional supplements;” “mineral supplements;” “natural
supplements for treating candida;” “natural supplements for treating
depression and anxiety;” “nutritional supplement in the nature of
Cancellation No. 92073371

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nutrient-dense, protein based drink mix;” “powdered fruit-flavored
dietary supplement drink mix;” and “protein supplements.”
While Respondent argues that “[t]he maca supplement does, in fact, constitute a
sale for each of the goods in the registration,” the sole exhibit submitted in support of
this assertion fails to demonstrate the absence of a genuine dispute of material fact
as to that issue, inasmuch as it does not state that Respondent’s product is an
example of each of the foregoing goods.9 Accordingly, summary judgment is denied as
to the foregoing goods.
For the foregoing reasons, summary judgment is granted, in part, to Respondent
on the issue of abandonment as to the following goods:
“dietary and nutritional supplements;” “dietary beverage supplements
for human consumption in . . . dry mix form for therapeutic purposes;”
“dietary food supplements;” “dietary supplements;” “dietary
supplements for human consumption;” “food supplements;” “herbal
supplements;” “dietary supplement drink mixes;” “natural herbal
supplements;” “nutraceuticals for use as a dietary supplement;”
“nutritional supplements;” and “powdered nutritional supplement drink
mix.”
Summary judgment is denied, in part, as to the remaining goods in the
registration. Thus, to be clear, this cancellation proceeding will proceed to trial on the

9 The fact that we have identified certain genuine disputes of material fact as a sufficient
basis for denying the motion should not be construed as a finding that such disputes
necessarily are the only disputes that remain for trial.
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issue of whether Respondent abandoned its mark VIDAPURA for the following goods
in the registration:
“calcium supplements;” “dietary beverage supplements for human
consumption in liquid . . . form for therapeutic purposes;” “dietary
supplemental drinks;” “dietary supplements for controlling cholesterol;”
“meal replacement . . . drink mixes;” “mineral food supplements;”
“mineral nutritional supplements;” “mineral supplements;” “natural
supplements for treating candida;” “natural supplements for treating
depression and anxiety;” “nutritional supplement in the nature of
nutrient-dense, protein based drink mix;” “powdered fruit-flavored
dietary supplement drink mix;” and “protein supplements.”
The parties are precluded from filing any further motions for summary judgment
until after the close of discovery.
IV. ACR
The remaining legal issues presented in this proceeding appear to be
appropriate for resolution by means of the Board’s accelerated case resolution (“ACR”)
procedure, and the Board suggests that the parties stipulate to continuing the
cancellation by that process.10 This may take the form of the parties stipulating

10 Absent such agreement, the parties should note that the evidence submitted in connection
with a motion for summary judgment or opposition thereto is of record only for consideration
of that motion. Any such evidence to be considered at final hearing must be properly
introduced in evidence during the appropriate trial period. See Levi Strauss & Co. v. R.
Joseph Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993); Pet Inc. v. Bassetti, 219 USPQ 911
(TTAB 1983). The parties, however, may stipulate that any or all of the summary
judgment evidence be treated as properly of record for purposes of final decision. See, e.g.,
Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998).
Cancellation No. 92073371

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that their summary judgment briefs and evidence, with or without
supplementation, be treated as the final record and briefs in these consolidated
proceedings. See, e.g., Freeman v. Nat’l Ass’n of Realtors, 64 USPQ2d 1700, 1701
(TTAB 2002) (parties agreed that evidence and arguments submitted with Opposer’s
motion for summary judgment and Applicant’s response could be treated as the final
record and briefs); see also TBMP § 528.05(a)(2) and authorities cited therein. In the
event the parties agree to ACR using summary judgment briefs and accompanying
evidence, including any supplementation of evidence they may agree would be
appropriate, they will need to stipulate that the Board may determine any genuine
disputes of material fact the Board may find to exist. See TBMP § 702.04 for more
information.
The parties may also utilize ACR for other efficiencies designed to save the
parties time and expense and lead to a faster resolution of the proceeding. For
example, the parties could stipulate to certain facts or limit evidentiary submissions
at trial. They could also agree to shorten the trial period by submitting evidence and
arguments in a substantially contemporaneous manner.
The parties are therefore encouraged to jointly contact the Board’s interlocutory
attorney responsible for this proceeding by telephone to discuss the possibility of
ACR, any necessary or desired stipulations, and an agreed schedule for proceeding
under ACR.
If the parties decide not to proceed via ACR, this proceeding will continue on the
schedule set out below.
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V. Proceedings Resumed; Trial Dates Reset
This proceeding is resumed. Trial dates are reset as follows:
Expert Disclosures Due 10/9/2021
Discovery Closes 11/8/2021
Plaintiff's Pretrial Disclosures Due 12/23/2021
Plaintiff's 30-day Trial Period Ends 2/6/2022
Defendant's Pretrial Disclosures Due 2/21/2022
Defendant's 30-day Trial Period Ends 4/7/2022
Plaintiff's Rebuttal Disclosures Due 4/22/2022
Plaintiff's 15-day Rebuttal Period Ends 5/22/2022
Plaintiff's Opening Brief Due 7/21/2022
Defendant's Brief Due 8/20/2022
Plaintiff's Reply Brief Due 9/4/2022
Request for Oral Hearing (optional) Due 9/14/2022
Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125, 37 C.F.R. §§ 2.121-2.125. These include
pretrial disclosures, the manner and timing of taking testimony, matters in evidence,
and the procedures for submitting and serving testimony and other evidence,
including affidavits, declarations, deposition transcripts and stipulated evidence.
Trial briefs shall be submitted in accordance with Trademark Rules 2.128(a) and (b),
37 C.F.R. §§ 2.128(a) and (b). Oral argument at final hearing will be scheduled only
upon the timely submission of a separate notice as allowed by Trademark Rule
2.129(a), 37 C.F.R. § 2.129(a).