Randolph James Buchanv.Prophet K.M. Livingood

Trademark Trial and Appeal Board

Oct 16, 2008

No. 92043742 (T.T.A.B. Oct. 16, 2008)

Mailed: October 16, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Randolph James Buchan

v.

Prophet K.M. Livingood
_____

Cancellation No. 92043742
_____

James Michael Faier of Faier & Faier, P.C. for Randolph
James Buchan.

Prophet K.M. Livingood, pro se.
______

Before Hairston, Bucher and Kuhlke, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Randolph James Buchan has petitioned to cancel the
registration owned by Prophet K.M. Livingood for the mark
shown below,

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 92043742
2
for “printed membership cards, printed membership
certificates, calendars, newsletters, stationery and printed
educational, instructional and teaching material in the
field of law and enforcement relating to security guard and
private detective training, paralegal and Christian
psychological training” in International Class 16.1
As grounds for cancellation, petitioner alleges that he
is the owner of application Serial No. 78304902 for the mark
shown below,

for “paper banners and decals” in International Class 16;
“clothing, namely, shirts, jackets, windbreakers, shorts,
skirts, scarves, pants, coats; headgear, namely, hats,
visors, helmets” in International Class 25; and “meetings on

1 Registration No. 2467184, issued on July 10, 2001, and claiming
October 31, 1998 as the date of first use anywhere and in
commerce; Section 8 affidavit accepted. The wording “UNITED
NETWORK COMMAND FOR LAW & ENFORCEMENT, INCORPORATED” has been
disclaimed apart from the mark as shown.
Opposition No. 92043742
3
the subject of liberal expansion and activities against
liberal expansion; education, namely, providing classes,
lectures, rallies, seminars, congresses, and symposia on the
subject of liberal expansion and activities against liberal
expansion; providing of training on liberal expansion and
activities against liberal expansion” in International Class
41;2 that registration of petitioner’s application has been
refused in view of respondent’s registration; that
petitioner first used his mark as early as 1995 which is
prior to respondent’s claimed date of first use of October
31, 1998; that the goods and services of the respective
parties are related; that the contemporaneous use of the
parties’ marks in connection with their respective goods and
services is likely to cause confusion; and that respondent
has abandoned his mark.
Respondent, in his answer, has denied the salient
allegations of the petition to cancel.3
Before consideration of petitioner’s pleaded claims of
likelihood of confusion and abandonment, we must first

2 Serial No. 78304902, filed on September 24, 2003, alleging a
bona fide intention to use the mark in commerce. The application
contains the statement that “[t]he mark consists of a seal with a
globe and a man and the literal element around it.”
3 Respondent also counterclaimed to cancel petitioner’s
application Serial No. 78304902. Apart from the fact that a
counterclaim may not be filed against an application, we note
that respondent withdrew the counterclaim on April 9, 2007.
Opposition No. 92043742
4
address the admissibility of the materials offered into the
record by petitioner and respondent.
We note that petitioner did not take testimony or
present any other evidence during his assigned testimony
period in chief. Rather, during his assigned rebuttal
testimony period petitioner submitted his own testimony
deposition with exhibits. The problem with this evidence,
however, is that rebuttal testimony may be used only to
rebut evidence offered by the defendant. Western Leather
Goods Co. v. Blue Bell, Inc., 178 USPQ 382 (TTAB 1973). In
this case, respondent did not take testimony or present any
other evidence during his assigned testimony period. Thus,
petitioner’s evidence was not submitted for the purpose of
rebutting respondent’s case but instead was clearly an
attempt by petitioner to prove his case-in-chief. Because
petitioner’s evidence is improper rebuttal, it will not be
considered.
As noted above, respondent did not take testimony or
present any other evidence during his testimony period.
Rather, respondent submitted exhibits, at the time he filed
his final brief on the case. We note that exhibits A-C are
copies of Board orders issued in this proceeding and are
therefore automatically of record in this case. Exhibits D-
P include, inter alia, copies of Office actions issued in
connection with petitioner’s application Serial No.
Opposition No. 92043742
5
78304902, copies of respondent’s Iowa state trademark
registrations, and printouts of search results of the
records of the U.S. Copyright Office. Evidentiary material
accompanying a brief on the case can be given no
consideration unless it was properly made of record during
the testimony period of the offering party. Plus Products
v. Physicians Formula Cosmetics, Inc., 198 USPQ 111, 112 n.3
(TTAB 1978); and TBMP §539 (2d ed. rev. 2004). Because
respondent neither took testimony nor introduced any other
evidence, Exhibits D-P submitted with the brief obviously
are not of record. Thus, these materials will not be
considered.
In view of the foregoing, the record in this case
includes the pleadings and the file of the registration
sought to be cancelled. Petitioner and respondent filed
briefs, petitioner filed a reply brief, and respondent filed
a rebuttal brief. There is no provision in the Trademark
Rules for a rebuttal brief by the party in the position of
defendant. Thus, we will give no consideration to
respondent’s rebuttal brief.
We turn then to petitioner’s pleaded claims of
likelihood of confusion and abandonment. With respect to
the likelihood of confusion claim, petitioner alleged that
he first used his mark as early as 1995 which is prior to
respondent’s claimed date of first use of October 31, 1998.
Opposition No. 92043742
6
However, petitioner has failed to properly introduce any
admissible testimony or evidence that his mark was used
prior to respondent’s claimed date of first use.
Accordingly, irrespective of whether confusion is likely
from contemporaneous use of the marks at issue in connection
with the parties’ respective goods and services, because
petitioner, as the party bearing the burden of proof in this
proceeding has not presented testimony or properly
introduced any other evidence during his initial testimony
period as proof establishing his priority of use, petitioner
cannot prevail on the claim of likelihood of confusion.
With respect to the abandonment claim, petitioner
alleged that respondent “abandoned its rights in the mark by
non-use of the mark without intent to use the mark….”
(Amended Petition To Cancel ¶8). Again, however, petitioner
has failed to properly introduce any admissible testimony or
evidence which establishes that respondent has abandoned the
mark in the involved registration. Accordingly,
petitioner’s claim of abandonment has not been proven.
Lastly, petitioner’s brief contains numerous factual
allegations in support of his claims. However, factual
statements made in a party’s brief on the case can be give
no consideration unless they are supported by evidence
properly introduced at trial. Statements in a brief have no
evidentiary value. Electronic Data Systems Corp. v. EDSA
Opposition No. 92043742
7
Micro Corp., 23 USPQ2d 1460, 1462 n. 5 (TTAB 1992); and TBMP
§704.06(b) (2d ed. rev. 2004).
Decision: The petition to cancel is dismissed.