Rhonda Ademanv.Malibu Dream Girl

Trademark Trial and Appeal Board

May 13, 2008

No. 92045376 (T.T.A.B. May. 13, 2008)

Mailed:
May 13, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Rhonda Ademan
v.
Malibu Dream Girl
________

Cancellation No. 92045376
against Reg. No. 2821534
_______

Brian Gibbons of Brian R. Gibbons, P.A. for Rhonda Ademan.

Lucy B. Arant of Mitchell Silberberg & Knupp LLP for Malibu
Dream Girl.
_______

Before Walters, Bucher and Grendel, Administrative Trademark
Judges.
By the Board:
Rhonda Ademan has filed a petition to cancel the
registration issued to Malibu Dream Girl for the mark GOSSIP
for “women’s swimwear” in International Class 25. 1
As grounds for cancellation, petitioner alleges, among
other things that long prior to the August 9, 2001 filing
date of the application which matured into respondent’s
registration, and long prior to any date on which respondent

1 Registration No. 2821534 issued on March 9, 2004, which sets
forth a date of first use anywhere at least as early as July 2001
and first use in commerce at least as early as November 2001.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Cancellation No. 92045376
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can claim use of its mark, petitioner has been using her
GOSSIP CLOTHING mark in connection with items of clothing,
including swimwear, as well as retail store services
featuring such clothing.
Respondent, in its answer, has denied the salient
allegations of the petition to cancel.
This case now comes up on petitioner’s motion, filed on
February 13, 2007, for summary judgment on petitioner’s
priority and the likelihood of confusion between the marks
as applied to these goods and services.
Respondent has filed a brief in opposition to the
motion and only petitioner has submitted evidence with
respect to her position. In support of her summary judgment
motion, petitioner relies primarily on (a) her own
declaration and supporting exhibits; (b) respondent’s
responses to petitioner’s interrogatories; (c) respondent’s
responses to petitioner’s requests for admission; and (d)
copies of pages from respondent’s website.
In her declaration in support of petitioner’s claim of
priority, Ms. Ademan stated that she has been using the
GOSSIP CLOTHING mark in interstate commerce in connection
with a variety of clothing products, including women’s
swimwear, as well as using it as a service mark in
interstate commerce in connection with retail store services
Cancellation No. 92045376
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since at least as early as 1995, and that she has used it in
these ways continuously since that time.
Ms. Ademan’s declaration also includes a photographic
image of an “accurate and representative sample” of articles
of clothing with tags bearing the GOSSIP CLOTHING trademark;
a photographic image of an “accurate and representative
sample” of women’s swimwear with tags bearing the GOSSIP
CLOTHING trademark; a copy of representative invoices
showing the sale of clothing products in connection with the
GOSSIP CLOTHING mark; a copy of promotional materials
showing the GOSSIP CLOTHING mark used in the promotion of
petitioner’s retail store services; a photographic image of
the GOSSIP CLOTHING mark being used in connection with
retail store services featuring apparel, including women’s
swimwear; and the photographic image of the interior of a
retail store showing clothing products on sale.
In opposition to petitioner’s motion for summary
judgment, respondent has submitted no evidence or
declarations. Rather, respondent disputes many of
petitioner’s allegedly uncontroverted facts with the
arguments of counsel as to the shortcomings of petitioner’s
proffered evidence, and concludes that petitioner has failed
to establish priority of use, that petitioner has failed to
establish trademark or service mark usage of the
Cancellation No. 92045376
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designation, “Gossip Clothing”; and that petitioner has
failed to establish ongoing and continuous use of the
designation, “Gossip Clothing.” Respondent does not raise
any genuine issues as to whether or not a likelihood of
confusion would exist between respondent’s mark that is the
subject of this proceeding and petitioner’s alleged mark.
Summary judgment is an appropriate method of disposing
of cases in which there are no genuine issues of material
fact in dispute, thus leaving the case to be resolved as a
matter of law. See Fed. R. Civ. P. 56(c). The evidence
must be viewed in a light favorable to the nonmoving party,
and all justifiable inferences are to be drawn in the
nonmovant’s favor. See Opryland USA Inc. v. Great American
Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir.
1992); and Olde Tyme Foods Inc. v. Roundy's Inc., 961 F.2d
200, 22 USPQ2d 1542 (Fed. Cir. 1992).
The Issue of Priority
Ms. Ademan states in her declaration that petitioner
first used the mark in connection with apparel at least as
early as 1995. The earliest date on which respondent can
rely is the filing date of the application which matured
into respondent’s registration, or August 9, 2001.
Cancellation No. 92045376
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However, respondent bases its opposition to the motion
for summary judgment on the alleged failures of proof
related to petitioner’s exhibits. We agree with respondent
that some of these exhibits submitted in support of Ms.
Ademan’s averment of continuous use since at least as early
as 1995 fail to document this claim of priority. For
example, respondent argues that there is a genuine issue of
material fact as to petitioner’s claim of priority because
the photographs of clothing and swimwear bearing the mark
are undated. Exhibit A-1 is an undated photograph of
women’s outerwear bearing petitioner’s alleged “gossip
clothing” trademark on clothing labels, and Exhibit A-2 is
an undated photograph of women’s swimwear bearing
petitioner’s alleged mark on swimwear labels. Respondent
argues that these two undated photographs of items of
apparel with sewn-in tags provide no corroboration for
petitioner’s declaration.
On the other hand, there is nothing about the
photographs which actually contradicts or is inconsistent
with petitioner’s declaration of use since 1995. In fact,
petitioner did not need to corroborate her undisputed
declaration with photographs, but rather, could have relied
solely upon the declaration to establish her use since 1995.
Cancellation No. 92045376
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Furthermore, it appears from the initial pleadings and
from the evidence attached to the motion for summary
judgment that petitioner is relying upon prior trademark use
as well as prior service mark use. Demonstrating prior use
of her GOSSIP CLOTHING mark on either one entitles her to
prevail herein.
In this context, we turn our attention to four lay-away
receipts where the top portion thereof is printed with
“Gossip Clothing” in trade name or service mark format, as
follows:

• Exhibit A-3.2: Receipt #1475 was dated March 11, 2000;
• Exhibit A-3.3: Receipt #1478 was dated March 22, 2000;
• Exhibit A-3.4: Receipt #1486 was dated October 18,
2000; and
• Exhibit A-3.5: Receipt #1498 was dated February 16,
2001.

Each receipt listed at least one purported item of
clothing. As seen above, these four receipts have
transaction dates prior to respondent’s constructive use
date.
These receipts presumably are proffered as evidence of
service mark use for the retail store services offered under
Cancellation No. 92045376
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the GOSSIP CLOTHING service mark. The mark clearly appears
at the top of the receipts, and demonstrates good service
mark usage. As such, these lay-away receipts suffice to
prove petitioner's claim of prior service mark use in
connections with retail store services.
Respondent notes that rather than reflecting the sale
of GOSSIP CLOTHING brand swimwear, the actual goods listed
on the receipts appear to be overalls, most of which appear
to be Dickie® brand overalls. However, clothing and
swimwear retailers commonly sell items of clothing and
swimwear bearing third-party trademarks. Hence, the fact
that the listed goods themselves are different items of
clothing marketed under another brand is neither relevant
nor dispositive of the question of whether petitioner has
used the claimed mark as a service mark in connection with
retail store services.
Respondent, as the nonmoving party, simply cannot rest
on the mere allegations of its pleadings and assertions of
counsel in order to defeat a motion for summary judgment.
Respondent has honed in on specific portions of
petitioner’s evidentiary record. However, nothing in the
record belies petitioner’s explicit averment of use of the
mark as a service mark and as a trademark since 1995.
Cancellation No. 92045376
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Hence, we find that there is no genuine issue of material
fact as to petitioner’s priority herein.
Respondent has raised no genuine issues of material
fact for trial as to petitioner’s standing or as to the
factors determining a likelihood of confusion. Based upon
this record, we find that petitioner does have standing and
priority and that a likelihood of confusion exists.
Accordingly, we grant summary judgment to petitioner.
Decision: We hereby grant summary judgment to
petitioner, and respondent’s Registration No. 2821534 will
be cancelled in due course.