No. 91182094 (T.T.A.B. Sep. 22, 2009)

Ronald N. Myersv.David Gilbert

Trademark Trial and Appeal BoardSep 22, 2009

No. 91182094 (T.T.A.B. Sep. 22, 2009)

Mailed: September 22, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Ronald N. Myers v. David Gilbert _____ Opposition No. 91182094 to Application Serial No. 77184239 filed on May 17, 2007 _____ Jeannette K. Witten1 of Parravano Witten PC for Ronald N. Meyers. John Alumit of Patel & Alumit, PC for David Gilbert. ______ Before Rogers, Taylor and Wellington, Administrative Trademark Judges. Opinion by Taylor, Administrative Trademark Judge: David Gilbert has filed an application to register on the Principal Register the mark CEN CAL (in standard character form) for “T-shirts; Bandanas; Hats” in International Class 25.2 1 We note that Ms. Witten made an appearance on opposer’s behalf by the filing of opposer’s trial brief. The proceeding records have been updated accordingly. 2 Serial No. 77184239, filed on May 17, 2007, and alleging May 15, 2006 as the date of first use of the mark anywhere and THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91173658 2 Registration has been opposed by Ronald N. Meyers dba Cen Cal Clothing Company (opposer). As grounds for opposition, opposer alleges, in part, that: 1. The notice of opposition has been filed against the exclusive use of CEN CAL because it’s [sic] meaning is a pseudonym for Central California, therefore rendering it geographically descriptive, and furthermore is also lacking in secondary meaning. 2. There are producers, include [sic] myself, in our area that do use CEN CAL to describe their goods and services and that one person should not be able to prevent others from using that term, being CEN CAL, exclusively. (Not. of opp. ¶¶ 1 and 2).3 Applicant denied the essential allegations of the notice of opposition.4 September 25, 2006 as the date of first use of the mark in commerce. 3 Opposer also alleges that on his website applicant refers to CEN CAL as Central California. In apparent support of that allegation, opposer provided the URL address to applicant’s website. We point out that web pages and their content do not become of record simply by providing their web addresses. See In re Planalytics Inc., 70 USPQ2d 1453, 1457 (TTAB 2004). An applicant must provide a copy of the web page to make the web evidence of record. Moreover, even if opposer had submitted with his pleading the actual web pages, they would not have been considered, inasmuch as “… an exhibit attached to a pleading is not evidence on behalf of the party to whose pleading the evidence is attached unless identified and introduced in evidence as an exhibit during the period for the taking of testimony.” See Trademark Rule 2.122(c). 4 In addition, applicant, under the caption “AFFIRMATIVE DEFENSES” made both amplifications of his denials and pleaded certain affirmative defenses, including laches, unclean hands, estoppel and acquiescence. The pleaded defenses were not pursued at trial and are considered withdrawn. Opposition No. 91173658 3 On June 12, 2009, opposer filed a trial brief in this proceeding, attaching evidence in support of his case. Applicant did not file a trial brief. In any opposition before the Trademark Trial and Appeal Board, the opposer bears the burden of proving its case by a preponderance of the evidence. Eastman Kodak Co. v. Bell & Howell Document Mgmt. Prods. Co., 994 F.2d 1569, 26 USPQ2d 1912, 1918 (Fed. Cir. 1993)(“the challenger’s burden of proof in both opposition and cancellation proceedings is a preponderance of the evidence”). Our rules prescribe the procedure for introducing evidence to be considered by the Board at final hearing. See Trademark Rules 2.120(j); 2.122-2.125. In each opposition proceeding, the Board sets the schedule for trial, during which each party is afforded the opportunity to present evidence in support of its case by testimony, or by notice of reliance. Opposer’s burden of proof includes establishing his standing to bring the claim. This threshold inquiry is made by the Board in every inter partes case. That is, standing is an essential element of an opposer’s case which, if not proved at trial, will preclude opposer from prevailing in its claim(s). See Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982)(“The facts regarding standing … are part of a [plaintiff’s] case and must be affirmatively proved. Accordingly, [plaintiff] is Opposition No. 91173658 4 not entitled to standing solely because of the allegations in [the complaint].”); and No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ 502 (TTAB 1985). See also Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir. 2000); and Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999). In this case, opposer’s thirty-day testimony period was set to close on December 30, 2008 and therefore ran from December 1 through December 30. Opposer did not file testimony or a notice of reliance during that time. Although opposer did attach evidence to his trial brief, that evidence may not be considered because it is not properly of record, having been submitted outside of opposer’s assigned trial period. Trademark Rule 2.123(1) (“Evidence not obtained and filed in compliance with these sections will not be considered.”). As stated above, and contrary to opposer’s apparent belief, it was opposer’s burden to prove his case by a preponderance of the evidence. Notably, applicant did not make any admissions in his answer that would excuse opposer from having to prove his standing or his claim that CEN CAL is geographically descriptive.5 Because he has submitted no 5 Opposer stressed in its brief that “Applicant also acknowledges in its Answer that the CEN CAL mark is intended to suggest Central California.” (Br. p. 4) (internal citations omitted). To the extent opposer, by this statement, is arguing that applicant has admitted that the primary significance of his applied-for Opposition No. 91173658 5 admissible evidence, opposer has not proven his standing or his pleaded ground for relief and, is therefore, not entitled to the relief he seeks. Decision: The opposition is dismissed with prejudice. mark is geographic, we find such argument unavailing. The pertinent section of applicant’s answer reads in full “[i]n an office action response dated as of September 20, 2007, Applicant submitted that the CEN CAL mark is intended to suggest ‘Central California,’ but to the best of Applicant’s knowledge, has no official meaning.” (Answer ¶ 3). This statement falls far short of any admission regarding the primary significance of CEN CAL, geographic or otherwise. It simply responds to the allegation at paragraph 3 of the notice of opposition that “[w]e [opposer] are unaware if David Gilbert claimed CEN CAL to have the meaning ‘Central California’….”