Steven Mageev.Hooplife Basketball Academy, LLC

Trademark Trial and Appeal Board

Oct 7, 2021

91263698 (T.T.A.B. Oct. 7, 2021)

GMM October 7, 2021 Opposition No. 91263698 Steven Magee v. Hooplife Basketball Academy, LLC Before Mermelstein, Heasley, and Johnson, Administrative Trademark Judges. By the Board: This case comes up for consideration of Hooplife Basketball Academy, LLC’s (“Applicant”) and Steven Magee’s (“Opposer”) cross-motions for summary judgment on Opposer’s claim of likelihood confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d). I. Background Applicant seeks registration of the mark HLBA SPORTS (“SPORTS” disclaimed), in standard characters, for Basketball camps; Entertainment in the nature of basketball games; Training services in the field of basketball; Arranging and conducting youth sports programs in the field of basketball; Entertainment in the nature of basketball tournaments; Entertainment services, namely, arranging and conducting of competitions in the field of basketball; Organizing and conducting athletic competitions and games in the field of basketball; 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 Opposition No. 91263698 2 Organizing, conducting and operating basketball tournaments; Providing sports information in the field of basketball; Providing sports news and information in the field of basketball; Providing sports news in the field of basketball; Gymnasiums in International Class 411 As the sole ground for opposition, Opposer, who is not represented by counsel, has asserted the claim of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).2 In support of the claim, Opposer alleges ownership of Registration No. 6053527 for the mark HOOPLIFE for Basketball camps; Entertainment in the nature of basketball games; Training services in the field of basketball; Arranging and conducting youth sports programs in the field of basketball; Entertainment in the nature of basketball tournaments; Entertainment services, namely, arranging and conducting of competitions in the field of basketball; Organizing and conducting athletic competitions and games in the field of basketball; Organizing, conducting and operating basketball tournaments; Providing sports information in the field of basketball; Providing sports news and information in the field of basketball; Providing sports news in the field of basketball in International Class 41.3 Opposer alleges that Applicant’s HLBA mark is likely to be confused with Opposer’s HOOPLIFE mark because “HLBA” is an acronym for “HoopLife Basketball Academy,” as shown by Applicant’s name, Hooplife Basketball Academy, LLC.4 1 Application Serial No. 88669094, filed on October 25, 2019, based on use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and alleging September 30, 2019, as both the date of first use of the mark and the date of first use in commerce. 2 See, e.g., 1 TTABVUE 1, 3, 22-23. 3 Issued on May 12, 2020, based on use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and alleging May 18, 2007, as the date of first use of the mark, and June 21, 2016, as the date of first use in commerce. 4 1 TTABVUE 5-12. Opposition No. 91263698 3 Opposer also alleges that he uses the acronym “HLBA” in connection with training services and T-shirts.5 However, Opposer has not alleged a date of first use of HLBA, and has not alleged use prior to October 25, 2019, the date on which Applicant filed the involved application.6 Applicant answered the notice of opposition by denying Opposer’s allegations of likelihood of confusion.7 Applicant subsequently filed the current motion for summary judgment on Opposer’s Section 2(d) claim,8 and in response Opposer cross-moved for summary judgment on the claim.9 Applicant bases its motion, in part, on Opposer’s admissions by operation of Fed. R. Civ. P. 36(a)(3). II. Opposer’s Admissions Applicant served its first set of requests for admission on Opposer on December 9, 2020.10 Opposer’s responses were due by January 8, 2021. See Fed. R. Civ. P. 36(a)(3)11 and Trademark Rule 2.120(a)(3), 37 C.F.R. § 2.120(a)(3). Applicant asserts, and Opposer does not dispute, that Opposer did not respond to the requests for admission.12 When a party fails to respond to requests for admission, each request is 5 1 TTABVUE 6-8. 6 Id. 7 4 TTABVUE. 8 5 TTABVUE. 9 6-7 TTABVUE. 10 5 TTABVUE 33. 11 Fed. R. Civ. P. 36 is made applicable to Board proceedings by Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a). 12 5 TTABVUE 10. Opposition No. 91263698 4 deemed admitted unless the Board on motion permits withdrawal or amendment of the admission. See Fed R. Civ. P. 36(a)(3) and 36(b); Fram Trak Indus. v. Wiretracks LLC, 77 USPQ2d 2000, 2005 (TTAB 2006). Opposer has not moved to reopen his time to respond to the requests for admission pursuant to Fed. R. Civ. P. 6(b)(2), and has not moved to withdraw and amend his admissions pursuant to Fed. R. Civ. P. 36(b). Opposer’s explanation for his failure to respond to the requests for admission ultimately comes down to his assertion that he thought his responses were due by the close of the discovery period, March 27, 2021, rather than thirty days after being propounded. Consequently, he states, his failure to respond was due to this misunderstanding, “versus the pure denial or neglect to do so.”13 Opposer’s alleged misunderstanding of his deadline for responding to the requests for admission is unavailing because strict compliance with the Trademark Rules of Practice, and where applicable the Federal Rules of Civil Procedure, is required of all parties, whether or not they are represented by counsel.14 McDermott v. San Francisco Women’s Motorcycle Contingent, 81 USPQ2d 1212, n.2 (TTAB 2006), aff’d unpub’d, 240 Fed. Appx. 865 (Fed. Cir. 2007). Moreover, Opposer still has not responded to the requests for admission, and we do not construe his explanation for failing to do so as either a motion to reopen his time to respond to the requests based 13 See Opposer’s response to motion for summary judgment, 6 TTABVUE 5. 14 In the order instituting this proceeding, the Board advised the parties as follows: “This proceeding is similar to a civil action in a federal district court and can be complex. The Board strongly advises all parties to secure the services of an attorney who is familiar with trademark law and Board procedure.” 2 TTABVUE 6. Opposition No. 91263698 5 on excusable neglect under Fed. R. Civ. P. 6(b)(1)(B), or as motion to withdraw and amend his admissions pursuant to Fed. R. Civ. P. 36(b). Accordingly, the subject matter of each admission is conclusively established, and any arguments by Opposer that are contrary to his admissions are insufficient to raise a genuine dispute of material fact.15 See Fed R. Civ. P. 36(a)(3) and 36(b); Tex. Dep’t of Transp. v. Tucker, 95 USPQ2d 1241, 1244 (TTAB 2010). We note, however, that Opposer’s admissions that there is no of likelihood of confusion are not dispositive because likelihood of confusion is a question of law and “opinions of law [are] not admissions of fact and thus cannot serve ... as admissions against interest ....” Brooks v. Creative Arts By Calloway, LLC, 93 USPQ2d 1823, 1826 (TTAB 2009); see also Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 153-54 (CCPA 1978) (opposer’s prior statement “that confusion is unlikely to occur” was a legal conclusion that could not be an admission). On the other hand, facts may be admitted. Interstate Brands, 198 USPQ at 153- 54 (“Facts alone may be ‘admitted.’ In reaching the legal conclusion, the decision maker may find that a fact, among those on which the conclusion rests, has been admitted[.]”); see also Anheuser-Busch, Inc. v. Holt, 92 USPQ2d 1101, 1103 (TTAB 2009) (applicant’s factual admission in his answer that “opposer markets beer” established opposer’s standing as a competitor of applicant in the beer market). 15 The Board may not sua sponte treat admissions as withdrawn, or ignore admissions, without a motion to withdraw or amend if the time to respond has expired. See Am. Auto. Ass’n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 19 USPQ2d 1142, 1144 (5th Cir. 1991). Opposition No. 91263698 6 Accordingly, we have considered Opposer’s admission that “Applicant’s HLBA SPORTS mark is not confusingly similar to Opposer’s HOOPLIFE mark.”16 We have done so because the similarity or dissimilarity of the parties’ respective marks is an underlying factual determination in evaluating the ultimate issue of likelihood of confusion under In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See, e.g., Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014). III. The Notice of Opposition Because both parties have moved for summary judgment on Opposer’s Section 2(d) claim, and because a party may not obtain summary judgment on a claim or issue that has not been properly pleaded, we exercise our discretion to review the notice of opposition to determine its legal sufficiency. See Fed. R. Civ. P. 56(a) Asian & W. Classics B.V. v. Selkow, 92 USPQ2d 1478, 1480 (TTAB 2009); Bausch & Lomb Inc. v. Karl Storz GmbH & Co. KG, 87 USPQ2d 1526, 1528 n.3 (TTAB 2008). A. Pleading and Proving a Section 2(d) Claim To prevail on summary judgment on his Section 2(d) claim, Opposer must plead, and ultimately prove, (1) entitlement to a statutory cause of action (formerly “standing”)17; (2) prior use of, or ownership of a registration for, his pleaded mark; 16 5 TTABVUE 27 (Request for Admission No. 12). 17 Our decisions previously analyzed the requirements of Trademark Act Sections 13 and 14, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Following the Supreme Court’s direction in Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26 (2014), we now refer to this inquiry as entitlement to a statutory cause of action. Despite the change in terminology, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain equally applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Opposition No. 91263698 7 and (3) likelihood of confusion, mistake or deception of consumers resulting from contemporaneous use of the parties’ respective marks on their respective services. See Nike, Inc. v. Palm Beach Crossfit Inc., 116 USPQ2d 1025, 1029-30 (TTAB 2015); Fram Trak Indus., 77 USPQ2d at 2004. B. Priority and Likelihood of Confusion Because entitlement/standing may be based on a claim of likelihood of confusion “that is not wholly without merit,” Lipton Indus., Inc. v. Ralston Purina Co., 607 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982), we first consider Opposer’s allegations of priority and likelihood of confusion. To allege a valid claim of likelihood of confusion under Section 2(d), Opposer need only allege that he has valid proprietary rights that are prior to those of Applicant, or that he owns a registration which Applicant has not counterclaimed to cancel, and that Applicant’s mark so resembles Opposer’s mark as to be likely to cause confusion. See Trademark Act Section 2(d); Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43-45 (CCPA 1981); Nike, 116 USPQ2d at 1030. Opposer has pleaded a legally sufficient Section 2(d) claim based on his alleged ownership of Registration No. 6053527 for the mark HOOPLIFE for the services identified in the registration and his allegations of likelihood of confusion. In the notice of opposition, Opposer also refers to “multiple registrations for the mark HOOPLIFE.18 Opposer also refers to additional registrations in his cross- 18 See 1 TTABVUE 3. Opposition No. 91263698 8 motion for summary judgment.19 However, Registration No. 6053527 is the only registration identified by Opposer in the ESTTA cover sheet or the notice of opposition.20 Accordingly, we construe Opposer’s Section 2(d) claim as based solely on his pleaded Registration No. 6053527. In considering the parties’ cross-motions for summary judgment, we have not considered the unpleaded registrations. In the notice of opposition, Opposer also alleges his use of HLBA in connection with training services and T-shirts.21 However, Opposer has not alleged a date of first use of HLBA; and has not alleged use of HLBA prior to October 25, 2019, the date on which Applicant filed the involved application.22 The express statutory language of Section 2(d) requires prior use of a mark in the United States. Jung v. Magic Snow, LLC, 124 USPQ2d 1041, 1043 (TTAB 2017). Because Opposer has not alleged prior use of HLBA, we have not considered Opposer’s alleged use of HLBA as a basis for his Section 2(d) claim.23 See Jung, 124 USPQ2d at 1043-44 (Section 2(d) claim dismissed because opposer did not allege priority of use). In sum, we construe the Section 2(d) claim in the notice of opposition as based only on Opposer’s pleaded Registration No. 6053527 for the mark HOOPLIFE for the 19 See 3 TTABVUE 3. 20 See 1 TTABVUE 1-2 (relevant section of ESTTA Cover) and Notice of Opposition ¶ 2 (1 TTABVUE 4). 21 1 TTABVUE 6-8. 22 Id. 23 For the sake of completeness, we note that, in any event, as a result of Opposer’s failure to respond to Applicant’s requests for admission, Opposer has admitted, inter alia, that Applicant used its HLBA SPORTS mark prior to Opposer’s alleged adoption or use of HLBA or HLBA SPORTS, and that Opposer never used HLBA or HLBA SPORTS in connection with any goods or services. See 5 TTABVUE 26-27 (Requests for Admission Nos. 1-2 and 7-8). Opposition No. 91263698 9 services identified in the pleaded registration. Accordingly, in considering the parties’ cross-motions for summary judgment on Opposer’s Section 2(d) claim, we have only considered Opposer’s pleaded Registration No. 6053527 for the mark HOOPLIFE. C. Entitlement to a Statutory Case of Action Entitlement to invoke a statutory cause of action for an opposition is an element of the plaintiff’s case in every inter partes proceeding. See Chutter, Inc. v. Great Mgmt. Grp., LLC, 2021 USPQ2d 1001, at *10 (TTAB 2021); (citing, e.g.,, Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020)). To establish entitlement to a statutory cause of action, a plaintiff must plead and ultimately prove: (1) an interest falling within the zone of interests protected by the statute and (2) a reasonable belief in damage proximately caused by the registration of the mark. Chutter, 2021 USPQ2d 1001, at *10 (TTAB 2021); Spanishtown Enters., 2020 USPQ2d 11388 , at *1 (citing Corcamore, 2020 USPQ2d 11277, at *4); see also; 15 U.S.C. § 1063; Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270 , 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton, 213 USPQ at 189. Opposer has adequately pleaded his entitlement to a statutory cause of action under Section 2(d) based on his allegation of ownership of his pleaded Principal Register of Registration No. 6053527, together with a plausible claim of likelihood of confusion. See Lipton, 213 USPQ at 189 (“standing” may be based on a claim of likelihood of confusion “that is not wholly without merit”); see also Cunningham v. Laser Golf Corp., 22 USPQ2d F.2d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (pleaded registrations established “standing”); Vital Pharm. Inc. v. Kronholm, 99 Opposition No. 91263698 10 USPQ2d 1708, 1712 (TTAB 2011) (“standing” established at trial where pleaded registrations had been made of record). As discussed below, however, Opposer must, as part of his case in chief, affirmatively prove the facts regarding his entitlement to a statutory cause of action. Opposer’s entitlement to maintain his Section 2(d) claim is not established merely by the allegations in his notice of opposition. Lipton, 213 USPQ at 189. IV. The Cross-Motions for Summary Judgment We now turn to consideration of the parties’ cross-motions for summary judgment on Opposer’s Section 2(d) claim. We have carefully considered all of the parties’ arguments and evidence, but for the sake of efficiency we do not repeat or discuss all of them in this order. See Guess? IP Holder LP v. Knowluxe LLC, 116 USPQ2d 2018, 2019 (TTAB 2015) (Board not required to repeat or discuss irrelevant arguments); see also Omega SA v. Alpha Phi Omega, 118 USPQ2d 1289, 1292 n.11 (TTAB 2016) (presuming parties familiarity with issues raised in the motion). A. Summary Judgment Standard A motion for summary judgment is a pretrial device intended to save the time and expense of a full trial when the moving party is able to demonstrate, prior to trial, that there is no genuine dispute of material fact, and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Opryland USA Inc. v. Great Am. Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992); Sweats Fashions Inc. v. Pannill Knitting Co. Inc., 833 F.2d 1560, 4 USPQ2d 1793 (Fed. Cir. 1987). Where, as here, the parties have filed cross- motions for summary judgment, each party has the initial burden of demonstrating Opposition No. 91263698 11 the absence of any genuine dispute of material fact with respect to its own motion. See Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1437 (TTAB 2007). The fact that the parties have cross-moved for summary judgment on a claim does not necessarily mean that there are no genuine disputes of material fact and that trial is unnecessary. See Univ. Book Store v. Univ. of Wis. Bd. of Regents, 33 USPQ2d 1385, 1389 (TTAB 1994); 10A C. Wright, A. Miller & M. Kane, FED. PRAC. & PROC. CIV. § 2720 (4th ed. 2021). When the moving party meets its initial burden of demonstrating that there is no genuine dispute of material fact, the burden shifts to the nonmoving party to demonstrate the existence of specific genuinely disputed facts that must be resolved at trial. Freki Corp. N.V. v. Pinnacle Entm’t, Inc., 126 USPQ2d 1697, 1700 (TTAB 2018); Enbridge, Inc. v. Excelerate Energy L.P., 92 USPQ2d 1537, 1540 (TTAB 2009). The nonmoving party may not rest on the mere allegations of its pleadings and assertions of counsel, but must designate specific portions of the record or produce additional evidence showing the existence of a genuine dispute as to a material fact for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Octocom Sys. Inc. v. Hous. Computer Servs. Inc., 16 USPQ2d 1783, 1786 (Fed. Cir. 1990); Freki Corp., 126 USPQ2d at 1700. In general, to establish the existence of disputed facts requiring trial, the non-movant “must point to an evidentiary conflict created on the record[,] at least by a counterstatement of facts set forth in detail in an affidavit by a knowledgeable affiant.” Octocom, 16 USPQ2d at 1786; Freki Corp., 126 USPQ2d at 1700. A factual dispute is genuine if, on the evidence of record, a reasonable fact Opposition No. 91263698 12 finder could resolve the matter in favor of the nonmoving party. Opryland USA, 23 USPQ2d at 1472; Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992); Venture Out Props. LLC v Wynn Resorts Holdings, LLC, 81 USPQ2d 1887, 1890-91 (TTAB 2007). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it would have the burden of proof at trial, judgment as a matter of law may be entered in favor of the moving party. See Fed. R. Civ. P. 56(e), Celotex Corp., 477 U.S. at 322-23; Venture Out Props., 81 USPQ2d at 1891. All evidence must be viewed in a light favorable to the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party’s favor. Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir. 1993); Opryland, 23 USPQ2d at 1472. The Board does not resolve disputes of material fact, but only ascertains whether disputes of material fact exist. Lloyd’s Food Prods., 25 USPQ2d at 2029; Opryland USA, 23 USPQ2d at 1472; Olde Tyme Foods, 22 USPQ2d at 1544. B. Likelihood of Confusion Likelihood of confusion under Trademark Act Section 2(d) is a question of law with underlying factual findings made under the factors set forth in DuPont, 177 USPQ at 567 (the “DuPont factors”). See, e.g., Stone Lion Capital Partners, 110 USPQ2d at 1160; M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1381 (Fed. Cir. 2006). In determining the issue of likelihood of confusion and, in this case, whether there are any genuine disputes of material fact, we have considered each DuPont factor that is relevant and for which there is evidence and argument of record. M2 Software, Opposition No. 91263698 13 78 USPQ2d at 1947; ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015). In any likelihood of confusion analysis, varying weights may be assigned to each DuPont factor depending on the evidence presented, see Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011), but two key considerations are the similarities or dissimilarities between the parties’ marks and services. In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus ... on dispositive factors, such as similarity of the marks and relatedness of the goods.’”)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). C. Opposer’s Cross-Motion for Summary Judgment To prevail on summary judgment on his Section 2(d) claim, Opposer must establish that there is no genuine dispute that he is entitled to a statutory cause of action; that he is the prior user of his pleaded mark, or that priority is not at issue based on ownership of a pleaded registration; and that the parties’ contemporaneous use of their respective marks in connection with their respective services would be likely to cause confusion, mistake or to deceive consumers. See Fram Trak Indus., 77 USPQ2d at 2004; Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001). Opposition No. 91263698 14 Although Opposer does not directly address his entitlement to maintain a statutory cause of action, and Applicant does not contest such entitlement, we must address the issue because a plaintiff moving for summary judgment bears the burden of establishing that there is no genuine dispute of material fact that he is entitled to bring and maintain a statutory cause of action. See United Rum Merchants Ltd. v. Distillers Corp. (S.A.) Ltd., 9 USPQ2d 1481, 1483 (TTAB 1988) (plaintiff must establish “standing” as part of its motion for summary judgment). As explained above, Opposer’s entitlement to maintain his Section 2(d) claim is not established merely by the allegations in his notice of opposition, but must be affirmatively proved as a necessary element of his case.24 Lipton, 213 USPQ at 189. Opposer’s likelihood of confusion claim is based solely on his alleged ownership of pleaded Registration No. 6053527.25 However, Opposer did not submit a status and title copy of his pleaded registration as an exhibit to either the notice of opposition or his cross motion for summary judgment, nor did Opposer submit a declaration or any other evidence in an attempt to establish the status and title of the registration. See Trademark Rule 2.122(c)-(d)(1), 37 C.F.R. § 2.122(c)-(d)(1); Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 18 USPQ2d 1710, 1713 (Fed. Cir. 1991); United Global Media Grp. v. Tseng, 112 USPQ2d 1039, 1041-42 (TTAB 2014); Sterling Jewelers, Inc. v. Romance & Co., 110 USPQ2d 1598, 1600-01 (TTAB 2014). Moreover, in its answer to the notice of opposition, Applicant admitted only that “Opposer purports 24 See, supra, at p. 10. 25 See, supra, at 7 and 9. Opposition No. 91263698 15 to be the registrant on various HOOPLIFE registrations.”26 Applicant did not admit that Opposer owns Registration No. 6053527, nor did Applicant admit the validity of the registration.27 See Hewlett-Packard, 18 USPQ2d at 1712-13; United Global Media Grp., 112 USPQ2d at 1041-42; Sterling Jewelers, 110 USPQ2d at 1601-02. Because Opposer has not established the status and title of his pleaded Registration No. 6053527, let alone that there is no genuine dispute of material fact regarding the status and title of the registration, he may not rely on the registration to prove his entitlement to a statutory cause of action.28 Because Opposer has not established that there is no genuine dispute of material fact regarding his entitlement to maintain a statutory cause of action, we deny his cross-motion for summary judgment on that basis alone. D. Applicant’s Motion for Summary Judgment To prevail on its summary judgment motion, Applicant must establish that there is no genuine dispute of material fact that contemporaneous use of the parties’ respective marks in connection with their respective services would not be likely to cause confusion or mistake, or to deceive consumers. See Fram Trak Indus., 77 USPQ2d at 2004; Hornblower & Weeks, 60 USPQ2d at 1735. 26 Answer ¶ 2 (4 TTABVUE 3) (emphasis added). 27 Id. 28 For the sake of completeness, we note that because Opposer did not establish the status and title of his pleaded registration, Opposer has not established that priority is not at issue. See Cunningham, 55 USPQ2d at 1844; King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109-10 (CCPA 1974). Opposition No. 91263698 16 As discussed above, Opposer has admitted that “Applicant’s HLBA SPORTS mark is not confusingly similar to Opposer’s HOOPLIFE mark.”29 The fact that Applicant’s HLBA SPORTS mark is not confusingly similar to Opposer’s HOOPLIFE mark is conclusively established as a result of Opposer’s admission. Therefore, Opposer’s arguments contrary to this admission are insufficient to raise a genuine dispute of material fact. See Fed R. Civ. P. 36(a)(3) and 36(b); Tex. Dep’t of Transp., 95 USPQ2d at 1244. Opposer also has admitted that “there have never been any instances of actual confusion between Opposer’s HOOPLIFE mark and Applicant’s HLBA SPORTS mark.”30 Therefore, the absence of actual confusion, which goes to the seventh DuPont factor, see DuPont 117 USPQ at 567, also has been conclusively established. We find, notwithstanding the other DuPont factors, that in view of the obvious differences between Applicant’s HLBA SPORTS mark and Opposer’s HOOPLIFE mark, and Opposer’s admission that Applicant’s HLBA SPORTS mark is not confusingly similar to Opposer’s HOOPLIFE, the marks in this case are simply too dissimilar to support a finding of likelihood of confusion, now or at trial. See, e.g., Kellogg Co. v. Pack-Em Enter. Inc., 14 USPQ2d 1545, 1550 (TTAB 1989), aff’d, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991) (granting applicant’s motion for summary judgment because the dissimilarity of the marks outweighed all other DuPont factors and therefore applicant was entitled to judgment as a matter of law). That is to say, 29 5 TTABVUE 27 (Request for Admission No. 12). 30 5 TTABVUE 35 (Request for Admission No. 27). Opposition No. 91263698 17 even if all of the other DuPont factors weighed in Opposer’s favor, the dissimilarity of the parties’ marks is dispositive of the issue of likelihood of confusion on summary judgment. Kellogg, 21 USPQ2d at 1145 (“We know of no reason why, in a particular case, a single du Pont factor may not be dispositive.”). E. Decision Accordingly, on consideration of all of the evidence and arguments of record, we find that there is no genuine dispute of material fact that there is no likelihood of confusion. Therefore, Applicant’s motion for summary judgment on Opposer’s claim of likelihood of confusion under Section 2(d) is granted. It necessarily follows that Opposer’s cross-motion for summary judgment on the claim must fail, and therefore the cross-motion is denied. The opposition is dismissed.