Rasi Harper and Tafari Harperv.Lai Lan Enterprises LLC

Trademark Trial and Appeal Board

Nov 25, 2020

91249557 (T.T.A.B. Nov. 25, 2020)

Mailed: November 25, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Rasi Harper and Tafari Harper
v.
Lai Lan Enterprises LLC
_____

Opposition No. 91249557
_____

Andrew Agati and Elisé K. Yarnell of Hahn Loeser & Parks LLP,
for Rasi and Tafari Harper.

Eugene Strupinsky of Lurie|Strupinsky for Lai Lan Enterprises LLC.
_____

Before Bergsman, Lykos and Coggins, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

I. Prologue
“This is a family dispute disguised as a trademark issue. And this is absolutely
not the forum to resolve the acrimony between two brothers and their sister.”1
We agree. Nevertheless, here we are.

1 Applicant’s Brief (25 TTABVUE 5).
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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II. Introduction
Lai Lan Enterprises LLC (Applicant) seeks registration on the Principal Register
for the mark SOBK, in standard character form, for the goods listed below:2
Hat boxes of cardboard; Hat boxes of paper, in
International Class 16;
Hats; Hats for infants, babies, toddlers and children;
Pants; Pants for adults; Pants for children; Pants for
babies; Shirts; Socks; Athletic pants; Athletic apparel,
namely, shirts, pants, jackets, hats and caps; Baseball caps
and hats; Bucket hats; Camouflage pants; Capri pants;
Denims; Fashion hats; Gym pants; Headwear, namely,
Hats; Headwear, namely, Knitted Hats; Jogging pants;
Lounge pants; Outerwear, namely, Hats; Outerwear,
namely, Gloves; Outerwear, namely, Scarves; Outerwear,
namely, Jackets; Outerwear, namely, Coats; Rain hats; Ski
pants; Sleep pants; Sports caps and hats; Stretch pants;
Sweat pants; Tap pants; Women’s hats and hoods; Woolly
hats; Yoga pants, in International Class 25; and
Hat pins of precious metal, in International Class 26.
Rasi Harper, residing in Sarasota Springs, New York,3 and Tafari Harper,
residing in Troy, New York (Opposers),4 oppose the registration of Applicant’s SOBK
trademark under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), on the
ground that Applicant is not the owner of the mark.5 According to Opposers, the

2 Serial No. 88056635 filed July 28, 2018, under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1(a), claiming first use of the mark anywhere on April 2, 2017 in all three classes and first
use in commerce on April 4, 2018 in all three classes.
3 Rasi Harper Decl. ¶4 (22 TTABVUE 44).
4 Tafari Harper Decl. ¶4 (22 TTABVUE 53).
5 Section 1(a)(1) of the Trademark Act, 15 U.S.C. § 1(a)(1), provides “[t]he owner of a
trademark used in commerce may request registration of its trademark on the principal
register.”
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SOBK partnership consisting of Rasi Harper, Tafari Harper, and Crystal Harper
purportedly owns the trademark.6
Applicant, in its Answer, denies the salient allegations in the Notice of Opposition.
Applicant asserted affirmative defenses that are not affirmative defenses but
amplifications of its denials.
The parties agreed to resolve this proceeding by Accelerated Case Resolution
(“ACR”) in lieu of a trial utilizing a modified summary judgment format stipulating,
“the Board may resolve genuine disputes of material fact and issue a final ruling
based on the parties’ ACR submissions.”7
III. The Record
The record includes the pleadings, and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s application for the SOBK mark. In
addition, the parties introduced the evidence listed below:
A. Opposers’ testimony and evidence.
1. Declaration of Rasi Harper (July 14, 2020) with exhibits;8
2. Declaration of Tafari Harper (July 14, 2020) with exhibits;9
3. Excerpts from the Crystal Harper discovery deposition;10

6 Notice of Opposition ¶¶50-51 (1 TTABVUE 8).
7 7 TTABVUE 5-6.
8 22 TTABVUE 43-50.
9 22 TTABVUE 52-58.
10 22 TTABVUE 63-83. Opposers improperly introduced a condensed version of the Crystal
Harper discovery deposition. Trademark Rule 2.126(g)(1), 37 C.F.R. § 2.126(g)(1), provides
“[t]he deposition transcript must be submitted in full-sized format (one page per sheet), not
condensed (multiple pages per sheet).”
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4. Declaration of William Barton, a purchaser of a SOBK hat;11
5. Declaration of Rasi Harper (October 7, 2020);12 and
6. Declaration of Tafari Harper (October 7, 2020).13
B. Applicant’s testimony and evidence.
1. Declaration of Crystal Harper (September 18, 2020), Applicant’s sole
owner;14 and
2. Declaration of Crystal Harper (October 28, 2020) with exhibits.15
IV. Facts regarding the parties’ conduct, intent and relationship.
We summarize the relevant facts regarding the adoption and use of the SOBK
trademark and business relationship between the parties below. The overwhelming
evidence is the testimony of the parties through their declarations and the discovery
deposition of Crystal Harper. There is very little in the way of corroborating
documentary evidence. Thus, the evidentiary showing is primarily a “they said, she
said” situation.
However, Crystal Harper did not come across as a credible witness in her
discovery deposition. Despite her testimony that she was prepared to testify on behalf
of Applicant,16 she was unprepared and unable to answer basic questions to which
she should have known the answer and for which she was obligated to prepare to

11 22 TTABVUE 110-111.
12 30 TTABVUE 15.
13 30 TTABVUE 17-18.
14 25 TTABVUE 19-28.
15 31 TTABVUE 16-78.
16 Crystal Harper Discovery Dep., p. 29 (22 TTABVUE 69). There is no other person beside
Crystal Harper who can speak on behalf of Applicant. Id.
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answer as Applicant’s designee under Fed. R. Civ. P. 30(b)(6). We reach this
conclusion based on her testimony summarized below:
● Crystal Harper does not recall whether Applicant has a domain name or a
website that says “Lai Lan” (Applicant’s name);17
● Crystal Harper could not recall what products Applicant sold in 2012 through
2017;18
● Crystal Harper was not sure whether Applicant distinguishes hats from other
apparel;19
● Despite having an accounting background,20 Crystal Harper was unaware if
Applicant listed any intellectual property on its tax returns;21
● Despite having prepared and filed the application at issue, without any
assistance,22 Crystal Harper could not recall whether the four photographs of what
appear to be the same hat were photographs of the same hat or different hats;23
● Crystal Harper did not know the source of the hats depicted in the application
specimens;24 and
● Crystal Harper did not know who had access to info@SOBKhats.com in July

17 Id. at 17-18 (22 TTABVUE 66-67).
18 Id. at pp. 34-40 (22 TTABVUE 70-71).
19 Id. at p. 41 (22 TTABVUE 71).
20 Id. at pp. 21-22 (22 TTABVUE 67-68).
21 Id. at p. 44 (22 TTABVUE 72).
22 Id. at p. 45 (22 TTABVUE 72).
23 Id. at pp. 51-52 (22 TTABVUE 73).
24 Id. at pp. 57, 63-64 (22 TTABVUE 74 and 75). As noted below, Crystal Harper registered
the domain name sobkhats.com.
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2018.25
In addition, Crystal Harper testified, “on or about April 13, 2017, I hired a
professional designer to create the artwork and logos for the SOBK brand and website
on behalf of [Applicant], which owns the copyrights to the designs.”26 However, she
did not introduce a copy of the contract with the designer, nor did she introduce a
declaration from the designer to corroborate her testimony.
Finally, Crystal Harper testified, “‘SOBK’, ‘Society of Bold Kids,” and ‘SOBK Hats’
are all registered assumed names (d/b/a) of [Applicant].”27 However, she did not
introduce the assumed name registrations to corroborate her testimony.
We find Crystal Harper’s vague and inconsistent discovery testimony permeates
the testimony in her declarations introduced into evidence after the family dispute.
In other words, Crystal Harper’s lack of credibility in her discovery deposition affects
her credibility in her testimony declarations.
Crystal Harper complains, “I’m being put in a position to prove a negative – that
no partnership existed.”28 That is incorrect. Opposers have the burden of proving
Applicant is not the owner of the SOBK trademark and, therefore, not the proper
owner of the SOBK trademark application. We have accepted the test proffered by
Applicant for determining whether a partnership or some other form of association
or affiliation exists between Opposers and Crystal Harper or Applicant. We have set

25 Id. at p.113 (22 TTABVUE 78).
26 Crystal Harper Decl. ¶16 (25 TTABVUE 21).
27 Crystal Harper Decl. ¶23 (25 TTABVUE 21).
28 Crystal Harper Decl. ¶21 (25 TTABUE 21).
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forth the relevant facts below and have applied the facts to the test discussed above.
We have not put Applicant to the requirement of proving no partnership or other type
of association or affiliation exists. However, we have analyzed the record to see
whether Applicant has rebutted the facts introduced into evidence by Opposers.
As noted above, both Opposers testified that before the personal dispute with
Crystal Harper, the siblings (Rasi, Tafari, Crystal and Tesfa) “would work together
on various business projects with the hope they would successful. The SOBK effort
was no different.”29 Crystal Harper, however, testified that she formed Applicant in
2012 to operate her personal businesses and that she has “previously included
[Opposers] in these side-businesses.”30 Crystal Harper testified that she had “been
conducting all my apparel business through [Applicant] since 2012.”31 One thing the
parties agree on is that they never discussed the formal structure under which they
would conduct the SOBK brand business venture.32
On April 1, 2017, Crystal Harper registered the domain name sobkhats.com and
societyofboldkids.com on behalf of Applicant.33

29 Rasi Harper Decl. ¶7 (22 TTAVUE 44); Tafari Harper Decl. ¶7 (22 TTABVUE 53).
30 Crystal Harper Decl. ¶¶8 and 9 (25 TTABVUE 20).
31 Crystal Harper Decl. ¶21 (25 TTABVUE 21).
32 Crystal Harper Decl. ¶¶18 and 19 (25 TTABVUE 21); Rasi Harper Decl. ¶¶7, 12, 17, 27 (22
TTABVUE 44-46 and 48); Tefari Harper Decl. ¶¶7, 10, 15 (22 TTABVUE 53-55).
33 Crystal Harper Decl. ¶12 (25 TTABVUE 20); Crystal Harper Decl. ¶28 and Exhibit C (31
TTABVUE 21 and 31-37). Ms. Harper testified that she created an Instagram account
@sobkhats, as well as Facebook and Twitter accounts for SOBK related activities. Id. at ¶13
(25 TTABVUE 20). However, she did not include a date or any documentary corroboration.
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On April 19, 2017, Crystal Harper sent Opposers a link to sobkhats.com via text
message asking for feedback and explaining that she is “doing a hat line” and that
she is looking for ideas.34 Neither party introduced the information in the purported
link to sobkhats.com. Nevertheless, both Opposers replied.
On April 3, 2018, Crystal Harper and Rasi Harper communicated via text
messages regarding the SOBK project.
Crystal Harper: SoBK is a socially conscious urban hat brand based
in NYC. The true measure of a company isn’t just
great products but the impact that company has on
society, we’re committed to making a difference in
ways that extend far beyond products.

Rasi Harper: We can change the sb page over.
Crystal Harper: Ok.
Tesfa gonna be salty?
Rasi Harper: I told him already.
It’s time to start monetizing.35

34 Rasi Harper Decl. ¶8 and Exhibit F (22 TTABVUE 44 and 85); Crystal Harper Decl. ¶9 and
Exhibit A (31 TTABVVUE 17 and 23).
35 Rasi Harper Decl. ¶ 10 and Exhibit G (22 TTABVUE 45 and 87).
Tesfa is another sibling who is not involved in the SOBK trademark business project. Tesfa
is an aspiring rap music performer. Rasi Harper Decl. ¶8 (22 TTABVUE 44). “Because Tesfa’s
rap music was sometimes really hard-core, we did not want the brand to be associated with
the prior efforts in 2017 [presumably to launch the SOBK brand]. Tesfa understood that.”
Rasi Harper Decl. ¶9 (22 TTABVUE 44-45).
Presumably, the “sb page” refers to sbmusicgroup.com. Rasi Harper Decl. ¶8 (22 TTABVUE
44); Tefari Harper Decl. ¶8 (22 TTABVUE 53). Rasi Harper and Tafari Harper testified that
Rasi Harper changed his Instagram account to “sobkhats.” Rasi Harper Decl. ¶15 (22
TTABVUE 48); Tafari Harper Decl. ¶19 (22 TTABVUE 56). On the other hand, Crystal
Harper contends that she created the Instagram account @sobkhats. Crystal Harper Decl.
¶13 (25 TTABVUE 20).
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In a text dated April 11, 2018, Rasi Harper asked Crystal Harper whether SOBK
has a trademark. Crystal Harper replied, “Started the process.”36
Because the parties did not have any hats to test market, Rasi Harper ordered
hats from two potential printers: BucksWholesale.com and Claire’s Embroidery.37
The invoices from BucksWholesale.com for “BK hats” were dated March 18, 2018,
May 4, 2018 and July 23, 2018.38 The invoices from Claire’s Embroidery were dated
March 26, 2018 through July 20, 2018.39 The invoices referring to SOBK were dated
April 20, 2018, May 18, 2018, May 24, 2018, and July 20, 2018.40
In undated text messages, Tafari Harper and Crystal Harper discussed
accounting and equity.
Crystal Harper: So, let’s pull all of that together. And with this new
order we can move accordingly with accounting for
the invoices, doing the inventory, and booking the
equity. If we do discounts, we should do it in the app.
I did a couple and I put thr [sic] price they pay.

Using the accounting system you can get a full
picture of what your expenses are and your income.
Other wise [sic], you think you’re making money and
you’re not. Lol.

Tafari Harper: Ok sound [sic] good but put all the invoices in there
it captures everything from day one and how much
it took I want every dollar spent so far accounted for
set up fees for logos initial [sic] order the whole thing

36 Rasi Harper Decl. Exhibit O (22 TTABVUE 128).
37 Rasi Harper Decl. ¶¶13-14 (22 TTABVUE 45).
38 Rasi Harper Decl. Exhibit H (22 TTABVUE 89-91).
39 Rasi Harper Decl. Exhibit I (22 TTABVUE 93-103).
40 Id. at 22 TTABVUE 97, 100, 102, and 103.
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that equity.

Crystal Harper: Like, me buying the table, sign etc [sic] to sell merch,
those are expenses. That cuts into that $20 profit
real quick. So it’s important to know what we are
spending and making.

Tafari Harper: Does that last one we got from the lady and sold and
paid for after that party is that our equity as well[?]

Crystal Harper: Nothing. For those initial orders. [sic] I didn’t have
invoices and all the money made off of the hats. So
that

That’s not in quick books.

I did deposit the $940 tho., which helped pay for the
order.

Tafari Harper: Make [sic] no sense there was thousands already
spent go back and put all those invoices in there rah
have all.

Crystal Harper: We will just go though [sic] everything and catch up.

Not a big deal, but we need to account for what’s in
and out. Anything you spend should be equity in the
company.

So if y’all buy hats, we should inventory, and all
sales go through the app including cash. Then we
deposit the cash. That’s what I’ve been doing. I swipe
cash and credit and keep the money separate.

We gotta sit and talk tho, but that’s essentially the
best way to be accountable, know what’s coming in
and out and anything money invested is equity in
the company.41

41 Tafari Decl. ¶10 and Exhibit Z (22 TTABVUE 54 and 161-164).
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Tafari Harper testified that it made sense for Crystal Harper to keep the books
“given her accounting experience.”42
The parties did not have a meaningful social media presence.
We worked together on figuring out the best Instagram
handle to use, as well as the creation of a Facebook page
and a website, and in addition, names to give hats so that
they could be marketed and shown separately on the
website. Exhibits G, J, S, T, and U to the Brief are true and
accurate copies of text messages reflecting this, including
my [Rasi Harper’s] comments. To get as many followers as
quickly as possible onto the SOBK Instagram account, I
[Rasi Harper] switched over an existing Instagram I had
with approximately 24,000 followers and then changed its
name to “sobkhats.” I suggested to Crystal and Tafari that
“sobkhats” was best name to use because it had more of a
mass cross appeal than, for example, “sobkhatsny,” which
focuses on New York only. We agreed to use “sobkhats.” I
maintained control of the Instagram account, and Crystal
maintained control of the website.43
“Rasi [Harper] maintained control of the Instagram account, while Crystal [Harper]
maintained control of the website, but we all had back-end access to both.”44
With respect to what SOBK stood for, the parties brainstormed together.
Ultimately, they agreed on “Society of Bold Kids,” the choice Crystal Harper
suggested.45 See the domain registration for societyofboldkids.com discussed above.46

42 Tafari Decl. ¶11 (22 TTABVUE 54).
43 Rasi Harper Decl. ¶25 (22 TTABVUE 48). See also Tafari Harper Decl. ¶19 (22 TTABVUE
55-56).
44 Tafari Decl. ¶19 (22 TTABVUE 56). See also Rasi Harper Decl. ¶25 (22 TTABVUE 48).
45 Rasi Harper Decl. ¶26 (22 TTABVUE 48); Tafari Harper Decl. ¶20 (22 TTABVUE 56).
46 31 TTABVUE 34-35.
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In July 26, 2018 text messages between Rasi Harper and Crystal Harper, Rasi
Harper inquired as to the status of the SOBK trademark and informed her that he
had an attorney that could register the mark. Crystal Harper replied that she had
“filed it.”47 However, she did not file it until July 28, 2018. On that date she filed the
application at issue in this proceeding. On August 3, 2018, Crystal Harper, on behalf
of Applicant, filed application Serial No. 88065190 for the mark SOCIETY OF BOLD
KIDS, in standard character form, for a wide variety of clothing in International Class
25.48
In an August 9, 2018 email from Crystal Harper (sobkhats@gmail.com) to Thomas
Dragonette, regarding design concepts for SOBK streetwear, Crystal Harper
identified Rasi Harper as her business partner.
We’d be interest in seeing how we could work together for
some fresh ideas to add to the mix. Feel free to stop into the
barber shop to discuss design concepts with Rasi. Feel free
to reach out via email at anytime. Oh, and I’m Crystal,
Rasi’s sister and business partner.49
Mr. Dragonette purportedly had contacts at New Era, a hat company that would be
beneficial for a start-up apparel company.50 Crystal Harper confirmed that she

47 Rasi Harper Decl. ¶30 and Exhibit CC (22 TTABVUE 49 and 171).
48 22 TTABVUE 173-176 and 180-182.
49 Rasi Harper Decl. ¶¶27-28 and Exhibit BB (22 TTABVUE 48-49 and 231). Crystal Harper
authenticated this email in her discovery deposition. Crystal Harper Dep., p. 111 (22
TTABVUE 78).
Rasi Harper is a barber. Rasi Harper Decl. ¶5 (22 TTABVUE 44); Crystal Harper Dep., p. 27
(22 TTABVUE 69).
50 Rasi Harper Decl. ¶28 (22 TTABVUE 49).
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invited Mr. Dragonette to visit Rasi Harper in his barbershop to discuss design
concepts in connection with the SOBK products.51
Opposers estimate that they “incurred $5,355, just in expenses. This does not
include travel costs, and it does not include the time and energy, [they] had
committed.”52
On January 22, 2019, Opposers filed a Notice of Opposition against the
registration of application Serial No. 88065190 for the mark SOCIETY OF BOLD
KIDS (Opposition No. 91245961).53 In an order dated May 1, 2019, the Board entered
a default judgment against Applicant sustaining Opposition No. 91245961 and
refusing registration.54
V. Entitlement to a Statutory Cause of Action
Even though Applicant does not contest it, Opposers’ entitlement to a statutory
cause of action, formerly referred to as “standing,” is a threshold issue in every inter
partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277
(Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965
F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020); Empresa Cubana Del Tabaco v. Gen.
Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish
entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest
falling within the zone of interests protected by the statute and (ii) proximate

51 Crystal Harper Dep., pp. 114-116 (22 TTABVUE 79).
52 Tafari Harper Decl. ¶25 (22 TTABVUE 58); Rasi Harper Decl. ¶32 (22 TTABVUE 50).
53 22 TTABVUE 189-197.
54 22 TTABVUE 212 and 235.
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causation. Corcamore, 2020 USPQ2d 11277 at *4.55 See also Empresa Cubana, 111
USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed.
Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185,
189 (TTAB 1982).
To establish their statutory entitlement to a cause of action, Opposers testified as
follows:
7. Before the dispute with my sister Crystal sometime in
the later part of July 2018, [Rasi], [Tafari], Crystal, me,
and sometimes our other brother, Tesfa Harper, would
work together on various business projects with the hope
they would be very successful. The SOBK effort was no
different.56
___
10. I always intended and believed that [we] three were
working together as partners. Crystal did too, as reflected
in the true and accurate copies of the text messages that
appear as Exhibits Z and AA to the Brief.57
___
12. I always intended and believed that [we] three were
working together as partners. Each of us would work
together on many of the same tasks, but in the paragraphs
below I will explain what I brought to the partnership.58
___

55 Our decisions have previously analyzed the requirements of §§ 1063 and 1064 under the
rubric of “standing.” We now refer to this inquiry as entitlement to a statutory cause of action.
Despite the change in nomenclature, our prior decisions and those of the Federal Circuit
interpreting “standing” under §§ 1063 and 1064 remain equally applicable.
56 Rasi Harper Decl. ¶7 (22 TTAVUE 44); Tafari Harper Decl. ¶7 (22 TTABVUE 53).
57 Tafari Harper Decl. ¶10 (22 TTABVUE 54).
58 Rasi Harper Decl. ¶12 (22 TTABVUE 45).
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15. Before the dispute with Crystal, we were all working
together on various aspects of SOBK, but in the paragraphs
below I will explain what I focused on.59
Opposers, as individuals, testified that they are partners with Crystal Harper in
connection with the SOBK brand business project. They believe they have a
partnership interest in the SOBK trademark and trademark application. The
testimony establishes an interest falling within the zone of interests protected by the
statute and a reasonable basis for Opposers’ belief of damage proximately caused by
the registration of the mark. This is sufficient to demonstrate Opposers are entitled
to pursue this cause of action.
VI. Res Judicata
Opposers introduced a copy of Applicant’s Serial No. 88065190 for the mark
SOCIETY OF BOLD KIDS for a wide variety of clothing in International Class 25.60
They also introduced a copy of the Notice of Opposition they filed against that
application (Opposition No. 91245961) asserting Applicant is not the owner of the
mark SOCIETY OF BOLD KIDS and, therefore, not the proper applicant,61 and the
May 1, 2019 entry of default judgment against Applicant sustaining Opposition No.
91245961 and refusing registration.62 In their brief, Opposers assert that the
opposition should be sustained based on res judicata.
[Applicant] already had the opportunity to mount its
argument, and failed to do so. [Opposers’] opposition to

59 Tafari Harper Decl. ¶15 (22 TTABVUE 55).
60 22 TTABVUE 173-176 and 180-182.
61 22 TTABVUE 189-197.
62 22 TTABVUE 212 and 235.
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[Applicant’s] “Society of Bold Kids” application involved the
exact same facts and circumstances as here. The opposition
was sustained, because [Applicant] defaulted. Under
principles of res judicata, [Applicant] is now barred from
denying the SOBK Partnership and challenging the SOBK
Mark opposition.63
Specifically, Opposers argue that the parties in the two proceedings are the same,
Opposition No. 91245961 reached final judgment via default judgment, and the two
oppositions involve the same set of transactional facts.64
Although Applicant contends “[b]eing strictly a matter of law, [res judicata] should
have been addressed early in the case by a motion,”65 Applicant analyzes the merits
of the claim in its brief.66 We hold the parties tried the res judicata issue by implied
consent because Applicant did not object to Opposers assertion of res judicata on the
ground that Opposers did not plead it and because Applicant addressed the issue in
its brief. We deem the pleadings amended pursuant to Fed. R. Civ. P. 15(b). See Nextel
Commc’ns, Inc. v. Motorola, Inc., 91 USPQ2d 1393, 1399 (TTAB 2009) (although
opposer did not plead issue preclusion as a ground for opposition, because applicant
did not object to opposer’s assertion of that ground in its brief and, in fact, addressed
the issue in its brief, the Board deemed the pleadings to be amended pursuant to Fed.
R. Civ. P. 15(b)).

63 Opposers’ Brief, p. 2 (22 TTABVUE 6).
64 Opposers’ Brief, p. 17 (22 TTABVUE 21).
65 Applicant’s Brief (25 TTABVUE 5).
66 Applicant’s Brief (25 TTABVUE 10-12).
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Under the doctrine of res judicata (or claim preclusion), the entry of a final
judgment “on the merits” of a claim (i.e., cause of action) in a proceeding serves to
preclude the relitigation of the same claim in a subsequent proceeding between the
parties or their privies, even in those cases where the prior judgment was the result
of a default or consent. See Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322 (1955);
Chromalloy Am. Corp. v. Kenneth Gordon, Ltd., 736 F.2d 694, 222 USPQ 187, 189-
190 (Fed. Cir. 1984); John W. Carson Found. v. Toilets.com, 94 USPQ2d 1942, 1946
(TTAB 2010); Flowers Indus., Inc. v. Interstate Brands Corp., 5 USPQ2d 1580, 1583
(TTAB 1987).
A second suit is barred by res judicata or claim preclusion if
(1) the parties (or their privies) are identical;
(2) there has been an earlier final judgment on the merits of a claim; and
(3) the second claim is based on the same set of transactional facts as the first.
Jet, Inc. v. Sewage Am. Sys., 223 F.3d 1360, 55 USPQ2d 1854, 1856 (Fed. Cir. 2000).
It is clear that the claim in Opposition No. 91244961 (SOCIETY OF BOLD KIDS)
is different from the claim in this opposition because it involves a different mark
(SOBK). In Opposition No. 91245961, Opposers alleged that Applicant is not the
owner of the mark SOCIETY OF BOLD KIDS. In this proceeding, Opposers allege
that Applicant is not the owner of SOBK. The claim that Applicant is not the owner
SOCIETY OF BOLD KIDS and is not the owner of SOBK are simply not the same
claim. The “transactional facts” are different because different marks are at issue.
Therefore, Opposers’ claim against the registration of the SOBK mark is not
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extinguishable by the prior judgment under the principle of res judicata or claim
preclusion. See Chromalloy Am. Corp. v. Kenneth Gordon, Ltd., 222 USPQ at 190.67
VII. Ownership of the SOBK trademark.
Opposers contend that the proper applicant for the SOBK trademark is a
partnership comprising Opposers and Crystal Harper.68 Applicant argues, to the
contrary, “every action, whether taken by Crystal [Harper] or Opposers, has
transpired under the corporate umbrella of [Applicant]. Furthermore, Crystal
[Harper] has never intended to form a new entity with them, and no such entity or
partnership was explicitly or implicitly agreed to or formed.”69 The parties agree,
however, that we should use the partnership law of New York to determine whether
there is a partnership (or some other association or affiliation) between Opposers and
Crystal Harper.70 We find, as discussed below, that the partnership law of New York
provides an acceptable template for determining whether Applicant is the proper
owner of the SOBK trademark and by extension the proper applicant.
“A partnership is an association of two or more persons to carry on as co -owners a
business for profit.” N.Y. P’ship Law § 10(1) (quoted in Hammond v. Smith, 151
A.D.3d 1896, 1897 (N.Y. App. Div., 4th Dept. 2017)). “Where, as here, there is no
written partnership agreement between the parties, a court looks to the parties’

67 Because the final judgment in Opposition No. 91245961 was a default judgment, there were
no issues litigated in the prior proceeding and, therefore, issue preclusion does not apply. See
Chromalloy Am. Corp. v. Kenneth Gordon, Ltd., 222 USPQ at 189.
68 Opposers’ Brief, p. 1 (22 TTABVUE 5).
69 Applicant’s Brief (25 TTABVUE 5).
70 Applicant’s Brief (25 TTABVUE 12-13); Opposer’s Reply Brief, p. 3 (30 TTABVUE 5).
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conduct, intent, and relationship to determine whether a partnership existed in fact .”
Hammond v. Smith, 151 A.D. at 1897, citing Fasolo v. Scarafile, 120 A.D.3d 929, 929-
930, 991 N.Y.S.2d 820 (2014). The relevant factors are
(1) the parties’ intent, whether express or implied;
(2) whether there was joint control and management of the business;
(3) whether the parties shared both profits and losses; and
(4) whether the parties combined their property, skill, or knowledge.
Hammond v. Smith, 151 A.D.3d at 1897; Griffith Energy, Inc. v. Evans, 85 A.D.3d
1564, 1565, 925 N.Y.S.2d 282 (2011); Kyle v. Ford, 184 A.D.2d 1036, 1036-37,
584 N.Y.S.2d 698 (1992). No single factor is determinative; a court considers the
parties’ relationship as a whole. Hammond v. Smith, 151 A.D.3d at 1897; Fasolo v.
Scarafile, 120 A.D.3d at 930; Griffith Energy, Inc. v. Evans, 85 A.D.3d at 1565 (2011).
A. The parties’ intent.
With respect to the parties’ intent, we consider whether the parties expressly or
implicitly intended to become partners. Hammond v. Smith, 151 A.D.3d at 1897. As
noted above, the parties never discussed the formal structure under which they would
conduct the SOBK brand business venture.71 However, the communications between
the parties indicate that Opposers and Crystal Harper or Applicant intended to share
ownership.

71 Crystal Harper Decl. ¶¶18 and 19 (25 TTABVUE 21); Rasi Harper Decl. ¶¶7, 12, 17, 27 (22
TTABVUE 44-46 and 48); Tefari Harper Decl. ¶¶7, 10, 15 (22 TTABVUE 53-55).
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In the text messages between Tafari Harper and Crystal Harper discussing
accounting and equity, Crystal Harper wrote,
● So it’s important to know what we are spending and making;
● Anything you spend should be equity in the company;
● We gotta sit and talk tho, but that’s essentially the best way to be accountable,
know what’s coming in and out and anything money invested is equity in the
company.72
This communication indicates that any money Opposers and Crystal Harper or
Applicant invest or spend on behalf of the SOBK brand project will be equity in the
SOBK brand entity. The RANDOM HOUSE UNABRIDGED DICTIONARY (2020) defines
“equity,” inter alia, as “the interest of the owner of common stock in a corporation”
and “Informal. ownership, especially when considered as the right to share in future
profits or appreciation in value.”73 Thus, whatever Opposers and Crystal Harper or
Applicant invest or spend in this project will be part of their ownership interest.
Crystal Harper testifies that what she meant by “equity” is “money” or “profit”74
or “it is possible that we are discussing potential ‘equity’ in [Applicant], an existing
company, which Opposers could earn through their contributions.”75 This testimony

72 Tafari Decl. ¶10 and Exhibit Z (22 TTABVUE 54 and 161-164).
73 Dictionary.com (accessed November 21, 2020). The Board may take judicial notice of
dictionary definitions, 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); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In
re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
74 Crystal Harper Decl. ¶44(G)(i) (25 TTABVUE 25).
75 Crystal Harper Decl. ¶44(G)(iii) (25 TTABVUE 26).
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demonstrates that Crystal Harper understands the meaning of the word “equity” in
that she concedes that she could have meant an ownership interest in Applicant.
However, “money” or “profit” is not one of the definitions of “equity” and as a person
with an accounting background she should have been aware of that and not used
“equity” if she was referring to “money” or “profit.” In addition, it is implausible that
Crystal Harper was referring to a potential equity interest in Applicant. If that is
what she meant, she would have (or should have) expressly stated it in the text
messages.
In the April 3, 2018 text messages between Rasi Harper and Crystal Harper, the
siblings were discussing beginning the SOBK brand project without Tesfa Harper
because Tesfa was pursuing his music career as a rapper.76 Crystal Harper worried
that Tesfa would be upset because the others were pursing the SOBK brand project
without him. Rasi told her not to worry because Rasi had explained to Tesfa that the
others were proceeding because it was time to “monetize” the project. We infer from
this communication that the parties intended to operate some sort of joint venture
without Tesfa Harper. If Crystal Harper intended to launch the SOBK brand project
through Applicant, there was no reason for her to express concern about Tesfa being
“salty” because according to Crystal Harper, her siblings were “salesmen.”77 Crystal
Harper could always permit Tesfa Harper to sell SOBK products on behalf of
Applicant if her siblings were just salespersons.

76 Rasi Harper Decl. ¶ 10 and Exhibit G (22 TTABVUE 45 and 87).
77 Crystal Harper Decl. ¶36 (25 TTABVUE 23).
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In an August 9, 2018 email from Crystal Harper (sobkhats@gmail.com) to Thomas
Dragonette, regarding design concepts for SOBK streetwear, Crystal Harper
identified Rasi Harper as her business partner. In other words, Crystal Harper held
out Rasi Harper as her business partner to a third party.78 Crystal Harper contends
that although the email speaks for itself, nothing in it “suggests a business
partnership, notwithstanding the use of the word ‘partner.’”79 We disagree. When a
person identifies another person as her partner to a third party, that identification
imparts the nature of the relationship. For example, Crystal Harper did not write
“Oh, and I’m Crystal, Rasi’s sister and Rasi sells my products.”
Finally, Rasi Harper twice inquired about the status of filing a trademark
application for the SOBK trademark. Neither time did Crystal Harper tell Rasi
Harper, who is purportedly just a salesperson for Applicant, that the trademark was
none of his concern because he is just a salesperson and has no ownership interest in
the trademark.
Based on the conduct of the parties, we find that the parties Opposers and Crystal
Harper or Applicant implicitly intended to operate as a partnership or some other
sort of joint venture.
B. Control and management of the business.
With respect to the second factor, we consider whether there was joint control and
management, e.g., shared supervision of business operations and shared

78 Rasi Harper Decl. ¶¶27-28 and Exhibit BB (22 TTABVUE 48-49 and 231).
79 Crystal Harper Decl. ¶44(I)(iii) and (v) (25 TTABVUE 25-26).
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responsibility for handling financial affairs. Hammond v. Smith, 151 A.D.3d at 1898.
Based on the testimony and evidence, we find that the parties shared control,
management, and operation of the SOBK brand project. For example,
● Rasi Harper obtained product;80
● Opposers and Crystal Harper “worked together on creating packing materials
for the shipment of hats”;81
● Rasi Harper worked on marketing, including social media;82
● Crystal Harper was in charge of the books given her accounting experience;83
and
● Tafari Harper “focused on marketing, sales, and overall promotion.”84
Crystal Harper contends Opposers conducted all of these activities on behalf of
Applicant and under Applicant’s authorization.85 However, Crystal Harper did not
introduce any evidence to corroborate her testimony that, as discussed above, lacks
credulity. There is nothing in the record to indicate that Crystal Harper ever said or
wrote anything along the lines of the decision is mine because I own the SOBK brand
or the decision is mind because SOBK is Applicant’s project. In addition, there is no

80 Rasi Harper Decl. ¶¶13-15 (22 TTABVUE 45-46).
81 Rasi Harper Decl. ¶19 (22 TTABVUE 46-47); Tafari Harper Decl. ¶24 (22 TTABVUE 57).
82 Rasi Harper Decl. ¶¶21-25 (22 TTABUE 47-48); Tafari Harper Decl. ¶19 (22 TTABVUE
55-56).
83 Tafari Harper Decl. ¶11 (22 TTABVUE 54); Crystal Harper Decl. ¶19 (25 TTABVUE 21).
84 Tafari Harper Decl. ¶16 (22 TTABVUE 55).
85 Crystal Harper Decl. ¶¶27, 31, 32, 48 and 49 (25 TTABVUE 22, 27 and 28).
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testimony or evidence that Opposers ever sought authorization to act on behalf of
Applicant.
C. Sharing of profits and losses.
With respect to the third factor, we consider whether the parties shared profits
and losses. A person’s receipt of a share of profits is prima facie evidence that he or
she is a partner. Hammond v. Smith, 151 A.D.3d at 1899.
It is well established that shared losses are an “essential
element” of any partnership agreement. Where there is
“undisputed evidence that [a party] never made a capital
contribution to the business [such evidence] strongly
suggests that no partnership existed.” (Internal citations
omitted).
Id.
As discussed above, the text messages between Tafari Harper and Crystal Harper
discussing accounting and equity indicate that the parties intended to form a
partnership or other type of joint venture whereby they would share profits and
losses. Crystal Harper testified, “my brothers were involved only in SOBK hats and
would share profits from it.”86 Crystal Harper did not introduce any examples of any
SOBK brand products other than hats. She did not introduce any excerpts from
websites or social media sites displaying SOBK brand products. The only SOBK
brand products of record are hats. Thus, Opposers share in the profits and losses of
the only SOBK brand products of record.

86 Crystal Harper Decl. ¶29 (25 TTABVUE 22).
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In addition, Opposers estimate that they incurred $5,355, just in expenses, not
including travel costs and the time and energy they committed to the project.87 If
Opposers were just salespersons, we would have expected them to be more meticulous
about keeping track of their expenses and sales than what Tafari Harper and Crystal
Harper discussed in the text messages. We find that Opposers and Crystal Harper
were working jointly to launch SOBK brand products and would figure out the
finances later. That is not characteristic of an employer-employee relationship.
D. Combined use of property, skill, or knowledge.
Finally, with respect to the fourth factor, we consider whether the parties
combined their property, skill, and knowledge. Hammond v. Smith, 151 A.D.3d at
1900. Based on the same facts discussed in our analysis of the control and
management of the business, we find that Opposers and Crystal Harper or Applicant
combined their use of skill and knowledge to launch the SOBK brand project.
E. Conclusion
Upon reviewing the testimony and evidence as a whole, we find that Opposers and
Crystal Harper or Applicant intended to launch and operate the SOBK brand project
as a partnership or some other form of joint venture. Opposers and Crystal Harper or
Applicant have a joint interest in the SOBK mark. Because Applicant is not the sole
owner of the mark, the application is void. See Conolty v. Conolty O’Connor NYC LLC,
111 USPQ2d 1302, 1309 (TTAB 2014) (finding application void because applicant is
not the sole owner of the mark) (citing Am. Forests v. Sanders, 54 USPQ 1860 (TTAB

87 Tafari Harper Decl. ¶25 (22 TTABVUE 58); Rasi Harper Decl. ¶32 (22 TTABVUE 50).
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1999) (finding intent to use application filed by Barbara Sanders void ab initio
because “the true entity which had a bona fide intent to use the mark LEAF RELEAF
and design was not Barbara Sanders an individual, but rather was a partnership
consisting of Stephen Sanders and Barbara Sanders”), aff’d, 232 F.3d 907 (Fed. Cir.
2000)).
Decision: The opposition is sustained on the ground that the application is void
ab initio because the owners of the mark did not file it.