Ultimate Nutrition, Inc.v.Wacker Chemie AG

Trademark Trial and Appeal Board

Jun 29, 2020

91252073 (T.T.A.B. Jun. 29, 2020)

JMM
June 29, 2020

Opposition No. 91252073

Ultimate Nutrition, Inc.

v.
Wacker Chemie AG

Before Bergsman, Lynch, and Coggins,
Administrative Trademark Judges.

By the Board:

This case comes before the Board for consideration of Opposer’s motion for
summary judgment on its sole claim of likelihood of confusion. The motion is
contested.
I. Background
Applicant seeks registration of the standard character mark FERMOPURE for
the following goods:
– Chemicals and biochemical substances for use in industry, science and
photography, as well as in agriculture, horticulture and forestry except
fungicides, herbicides, insecticides and parasiticides; amino acids and
amino acid derivatives for use in industry and science; amino acids and
amino acid derivatives for manufacturing foodstuffs, beverages,
flavourings, foodstuffs for animals, cosmetics, medicines, nutraceuticals
and nutrient media; peptides for use in industry and science; proteins
for use in industry and science; chemical and biochemical reagents for
protein folding; chemical and biochemical reagents for manufacturing
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. 91252073

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insulin; chemicals and biochemical substances for use as
pharmaceutical excipients; cysteine and cysteine derivatives for use in
industry and science; cystine and cystine derivatives for use in industry
and science; oligosaccharides and polysaccharides for use in industry
and science; cyclodextrins and cyclodextrin derivatives for use in
industry and science; antioxidants for manufacturing foodstuffs,
beverages, flavourings, foodstuffs for animals, cosmetics, medicines,
nutraceuticals and nutrient media; chemicals and biochemical
substances for manufacturing anti-ageing products; preparations for
stimulating cooking for industrial purposes; dough conditioners; dough
stabilisers; with the exception of dietary supplements (Int’l Class 1);

– Non-medicated cosmetics and toiletry preparations; hair care
preparations; hair straightening preparations; hair waving
preparations; cosmetic creams, cosmetic lotions, cosmetic emulsions and
cosmetic dispersions for tanning, sun protection, skin regeneration, skin
lightening, protection against ageing and replenishment of skin lipids;
cosmetic skin care preparations; cosmetic skin care preparations for
delaying the skin ageing process (Int’l Class 3);

– Pharmaceuticals for the treatment of obstructive airway diseases,
cirrhosis or for cancer prevention or for maintenance of redox
homeostasis in cells or for hair and skin care; medical preparations for
the treatment of obstructive airway diseases, cirrhosis or for cancer
prevention or for maintenance of redox homeostasis in cells or for hair
and skin care; veterinary preparations for the treatment of obstructive
airway diseases, cirrhosis or for cancer prevention or for maintenance of
redox homeostasis in cells or for hair and skin care; dietetic food and
substances adapted for medical or veterinary use; food for babies;
powdered milk for babies; medicated cosmetics; medicated creams for
maintenance of redox homeostasis in cells or for hair and skin care;
amino acids for medical or veterinary purposes; synthetic peptides for
pharmaceutical purposes; pharmaceutical preparations for treating
coughs; dietetic beverages adapted for medical use; dietetic foods
adapted for medical use; medicated animal feed; medicated beverages;
nutraceuticals for therapeutic or medical purposes; cyclodextrins and
cyclodextrin derivatives for medical or veterinary purposes;
antioxidants for medical, veterinary and dietetic purposes; cysteine and
cysteine derivatives for medical, veterinary and dietetic purposes;
cystine and cystine derivatives for medical, veterinary and dietetic
purposes; with the exception of dietary supplements (Int’l Class 5).1

1 Application Serial No. 79251481 was filed as a request for extension of protection under
Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f(a), and received an effective filing date
of October 1, 2018.
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Opposer filed a notice of opposition on the ground of likelihood of confusion under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d). Opposer pleaded ownership of
Registration No. 2818237, issued February 24, 2004, for the standard character mark
FERMAPURE for “nutritional products, namely dietary supplements” in
International Class 5.2 In its answer, Applicant denied the salient allegations in the
notice of opposition.3
II. Summary Judgment Standard
Summary judgment is an appropriate method of disposing of cases in which there
are no genuine disputes of material fact and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for summary judgment
has the burden of demonstrating there is no genuine dispute of material fact
remaining for trial and it is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidentiary record and
all reasonable inferences to be drawn from the undisputed facts must be viewed in
the light most favorable to the nonmoving party. Olde Tyme Foods, Inc. v. Roundy’s,
Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992).
When a movant sufficiently demonstrates that there is no genuine dispute of
material fact, and that it is entitled to judgment as a matter of law, the burden shifts
to the non-movant 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

2 1 TTABVUE 5, ¶ 7.
3 4 TTABVUE.
Opposition No. 91252073

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1697, 1700 (TTAB 2018); Enbridge, Inc. v. Excelerate Energy L.P., 92 USPQ2d 1537,
1540 (TTAB 2009). The non-movant may not rest on the mere allegations in its
pleadings and arguments by its 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; Freki
Corp., 126 USPQ2d at 1700. A dispute as to a material fact is genuine only if a
reasonable fact finder viewing the entire record could resolve the disputed matter in
favor of the non-movant. Olde Tyme Foods, 22 USPQ2d at 1544; Venture Out Props.
LLC v Wynn Resorts Holdings, LLC, 81 USPQ2d 1887, 1890–91 (TTAB 2007).
III. Evidence of Record
In support of its motion, Opposer submitted the following evidence through the
declaration of its attorney, William C. Wright:
– printouts from the electronic database records of the Office showing the
current status and title of its pleaded Registration No. 2818237;4
– a printout from the website fda.gov entitled “FDA 101: Dietary
Supplements;”5
– printouts from the electronic database records of the Office for 45 third-
party registrations that identify “dietary supplements” and include goods
in both International Classes 1 and 5;6

4 5 TTABVUE 16–21. Opposer also submitted printouts from the electronic database records
of the Office related to Applicant’s involved application. Pursuant to Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the application file of the involved application is
automatically of record without any action by the parties; thus, the printouts attached to the
Wright declaration are cumulative and unnecessary.
5 Id. at 28–29.
6 Id. at 31–313. Only seven of these third-party registrations are use-based under Section
1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
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– printouts from the electronic database records of the Office for 50 third-
party registrations that identify “dietary supplements” and include goods
in both International Classes 3 and 5;7 and
– printouts from the electronic database records of the Office for 11
uninvolved registrations owned by Applicant that include goods in
International Classes 1, 3, and 5.8
With its brief in opposition to the motion, Applicant submitted the following
evidence:
– printouts from Applicant’s website showing use of Applicant’s mark;9
– printouts from Opposer’s website showing use of Opposer’s mark;10
– a printout from the website Dictionary.com defining the term “dietetic;”11
and
– a printout from the website Wikipedia.org referring to “diet food” as
“dietetic food.”12
IV. Analysis
To prevail on summary judgment, Opposer must establish that there is no genuine
dispute that (1) it has standing to maintain this proceeding; (2) it owns a registration
for, or is the prior user of, its pleaded mark; and (3) the contemporaneous use of the
parties’ respective marks on their respective goods would be likely to cause confusion,

7 Id. at 315–544. Forty-one of these third-party registrations are use-based under Section 1(a)
of the Trademark Act, 15 U.S.C. § 1051(a).
8 Id. at 545–601. None of these registrations are use-based under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a). A Declaration of Use under Section 8 or Section 71 of
the Trademark Act, 15 U.S.C. § 1058 and 15 U.S.C. § 1141k, respectively, has been filed for
seven of these registrations.
9 9 TTABVUE 15–35.
10 Id. at 37–52.
11 Id. at 55.
12 Id. at 57.
Opposition No. 91252073

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or cause mistake, or deceive consumers. See Hornblower & Weeks, Inc. v. Hornblower
& Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001).
A. Standing and Priority
Standing is a threshold element that must be proven by the plaintiff in every inter
partes case. Empresa Cubana Del Tabaco v. Gen. Cigar Co., Inc., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); see Trademark Rule 2.104(a), 37 C.F.R.
§ 2.104(a). Opposer may establish its standing by properly making of record its
pleaded registration, if it is the basis for a Section 2(d) claim that is not wholly
without merit. Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1727–28 (Fed. Cir. 2012). In addition, where Opposer’s pleaded
registration is of record, and Applicant has not brought a counterclaim, priority is not
at issue as to the mark and goods covered by Opposer’s registration. King Candy Co.
v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974);
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.7 (TTAB 2012).
Opposer properly made of record its pleaded Registration No. 2818237 by
submitting electronic database records of the Office showing the current status and
title of that registration.13 See Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
Accordingly, there is no genuine dispute of material fact regarding Opposer’s
standing or priority.

13 Opposer submitted evidence of the status and title of its registration as an exhibit to its
notice of opposition (1 TTABVUE 11–18), and as an exhibit to its motion for summary
judgment (5 TTABVUE 16–21).
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B. Likelihood of Confusion
Likelihood of confusion depends on an analysis of all of the probative facts in
evidence that are relevant to the thirteen factors set forth in In re E. I. DuPont de
Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (the “DuPont
factors”).14 See also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods or services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017).
1. Similarity of the Marks
With respect to the marks, we must compare them “in their entireties as to
appearance, sound, connotation and commercial impression.” Palm Bay, 73 USPQ2d
at 1691 (quoting DuPont, 177 USPQ at 567). Similarity in any one of these elements
suffices to support a determination of likelihood of confusion. See Krim-Ko Corp. v.
Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968); In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014).
Opposer’s FERMAPURE mark and Applicant’s FERMOPURE mark are highly
similar as to appearance and sound. Both marks comprise a nine-letter word

14 We have considered each DuPont factor that is relevant and for which there is evidence of
record and argument. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d
1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015). We treat as neutral any DuPont factors for which there is no record
evidence or argument.
Opposition No. 91252073

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beginning with “FERM-” and ending with “-PURE”, and in its answer to the notice of
opposition, Applicant admitted that “[t]he marks at issue differ by a single letter,”15
which in both marks is a vowel. Because the letter “O” lies within the middle of
Applicant’s mark, which shares all of the remaining lettering in the same order as in
Opposer’s mark, the marks appear highly similar. Moreover, only the “A” in the
middle of FERMAPURE versus the “O” in the middle of FERMOPURE, could be
subject to a possible slight difference in pronunciation, and we do not think the
average consumer would necessarily distinguish that difference when calling for the
goods. The difference between the marks is de minimis. Slight differences in marks
do not normally create dissimilar marks. See Mag Instr. Inc. v. Brinkmann Corp., 96
USPQ2d 1701, 1714–15 (TTAB 2010) (difference of a single letter does not suffice to
distinguish MAG STAR from MAXSTAR); In re Total Quality Grp. Inc., 51 USPQ2d
1474, 1476 (TTAB 1999) (“Applicant’s mark STRATEGYN and registrant’s mark
STRATEGEN are phonetic equivalents and differ by only one letter.”).
Although Applicant contends that consumers “will place emphasis” on the “middle
syllable,” of the parties’ respective marks, thereby making them “visually” and
“phonetically different,”16 Applicant did not present any evidence to support this
argument, and for a mark that is not an English language word, there is no “correct”
or certain pronunciation of the mark. See, e.g., In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1912 (Fed. Cir. 2012); In re Belgrade Shoe Co., 411 F.2d 1352, 162

15 1 TTABVUE 7, ¶ 10 (notice of opposition); 4 TTABVUE 3, ¶ 10 (answer).
16 9 TTABVUE 11.
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USPQ 227, 227 (CCPA 1969). In addition, neither party submitted evidence regarding
the meaning of the marks to suggest that an “A” versus an “O” in the middle of the
parties’ otherwise identical marks provides any difference in connotation. Due to the
apparent arbitrary nature of the marks and the near identity in lettering, the marks
also have a similar commercial impression. See In re Great Lakes Canning, Inc., 227
USPQ 483, 485 (TTAB 1985) (“Moreover, although there are certain differences
between the [marks’ CAYNA and CANA] appearance, namely, the inclusion of the
letter ‘Y’ and the design feature in applicant’s mark, there are also obvious
similarities between them. Considering the similarities between the marks in sound
and appearance, and taking into account the normal fallibility of human memory over
a period of time (a factor that becomes important if a purchaser encounters one of
these products and some weeks, months, or even years later comes across the other),
we believe that the marks create substantially similar commercial impressions”).
Accordingly, we find that there is no genuine dispute that the parties’ marks are
highly similar.
2. The Goods, Trade Channels and Classes of Purchasers
Our determination regarding whether the parties’ goods are similar is based on
the identification of goods in Applicant’s application and Opposer’s pleaded
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press, Inc.,
281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002).
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i. International Class 5
The parties’ goods in Class 5 are legally identical in part. Opposer’s identification
of goods covers “dietary supplements,” and Applicant’s identification of goods covers,
in part, “dietetic food and substances adapted for medical or veterinary use.” The
record reflects that “dietetic” is defined as “pertaining to diet or to regulation of the
use of food,” or “prepared or suitable for special diets.”17 The record further reflects
that “dietary” is defined as “of or relating to a diet or to the rules of a diet.”18 Although
Applicant’s identification is limited to “dietetic food and substances” that are
“adapted for medical or veterinary use,” because Opposer’s broadly identified “dietary
supplements” are not restricted, Opposer’s identification must be read to encompass
Applicant’s identification. Therefore, the goods in Opposer’s pleaded registration
overlap with the goods in the involved application; they are legally identical in part.19
See, e.g., Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015)
(where the goods in an application or registration are broadly described, they are
deemed to encompass all the goods of the nature and type described therein).

17 9 TTABVUE 55.
18 https://www.merriam-webster.com/dictionary/dietary. The Board may take judicial notice
of dictionary definitions, including online reference works which exist in print format or have
regular fixed editions. See Bos. Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581,
1590 (TTAB 2008) (judicial notice taken of definition from the Merriam-Webster Online
Dictionary); see also Syngenta Crop Prot., Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117
(TTAB 2009); Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594
(TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
19 We need not find similarity as to every good identified in International Class 5 in order to
sustain the opposition as to the entire class of identified goods. See, e.g., Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Black &
Decker Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1492 n.30 (TTAB 2007).
Opposition No. 91252073

11
To the extent Applicant contends that “[t]he Opposer’s products have completely
different intended uses as the Applicant’s products,” this argument is unavailing.20
“The question in an opposition is not whether the applicant may use a mark as it
actually does or intends to do, but whether the applicant is entitled to the registration
it seeks.” Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1825
(TTAB 2015). Thus, “absent any explicit restriction in the application or registration,
we must presume the parties’ identified goods to travel through all normal channels
of trade for goods of the type identified, and we must consider them to be offered and
sold to all of the usual customers for such goods.” Id. at 1825–26; see Levi Strauss &
Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed.
Cir. 2013). We may not read into a registration or application limitations based on
actual use. See, e.g., In re i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v. Tomy
Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific
limitation and nothing in the inherent nature of Squirtco’s mark or goods that
restricts the usage of SQUIRT for balloons to promotion of soft drinks. The Board,
thus, improperly read limitations into the registration”); In re La Peregrina Ltd., 86
USPQ2d 1645, 1647 (TTAB 2008) (“An applicant may not restrict the scope of the
goods covered in the cited registration by argument or extrinsic evidence.”) (citation
omitted). Moreover, the evidence from Applicant’s website reflects that Applicant
markets its FERMOPURE products for use as “dietary supplements.”21

20 9 TTABVUE 7.
21 9 TTABVUE 27.
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Accordingly, with respect to the goods in Class 5, we find that there is no genuine
dispute that the parties’ goods are, in part, legally identical and will travel through
the same trade channels to the same classes of consumers.22
ii. International Classes 1 and 3
We take a different view, however, with respect to the goods in Classes 1 and 3.
Opposer contends that “[t]he goods identified in Applicant’s Class 1 identification
consist of ingredients that could be used in industry and science to create or prepare
dietary supplements,” and that “[t]he goods identified in Applicant’s Class 3
identification include goods that could be used in conjunction with dietary
supplements to either achieve or complement the desired results.”23 However, there
is no evidence of record before the Board to support these contentions. Attorney
argument is not a substitute for evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367,
127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (citing Enzo Biochem, Inc. v. Gen-Probe, Inc.,
424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)).
In addition, Opposer has not submitted sufficient evidence to establish that there
is no genuine dispute that the parties’ goods are of a type which may emanate from
the same source. Opposer did not present any evidence of third-parties offering both
“dietary supplements” and Applicant’s goods identified in Classes 1 and 3 under the

22 In its opposition to the motion, Applicant contends that there is a genuine dispute of
material fact regarding the sophistication of the relevant purchasers. (9 TTABVUE 9).
However, Applicant did not present any evidence of record with respect to this argument,
and attorney argument, absent supporting evidence, is insufficient to establish a genuine
dispute of material fact. Octocom Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16
USPQ2d 1783, 1786 (Fed. Cir. 1990) (“The party opposing a motion for summary judgment
must point to an evidentiary conflict created on the record . . . .”).
23 5 TTABVUE 8.
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same mark. See, e.g., Hewlett-Packard, 62 USPQ2d at 1004 (“whether a single
company sells the goods and services of both parties, if presented, is relevant to a
relatedness analysis”). Although Opposer has attempted to show a connection
between the parties’ goods by submitting third-party registrations which include both
“dietary supplements” and goods in Classes 1 and 3, Opposer did not point to any
specific registrations within those submitted that include both “dietary supplements”
and goods identical to or similar to Applicant’s goods.24 Moreover, while Applicant
submitted a number of registrations with its motion, many of them were not use-
based registrations. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785
(TTAB 1993) (Copies of use-based, third-party registrations may serve to suggest that
the goods and/or services are of a type which may emanate from a single source).
Accordingly, with respect to the goods in Classes 1 and 3, we find that a genuine
dispute of material fact exists regarding, at a minimum, the relatedness of the
parties’ goods at issue.25

24 The burden was on Opposer to identify the evidence of record which it believes
demonstrates the absence of a genuine issue of material fact. Cf. Celotex Corp., 477 U.S. at
323 (“[A] party seeking summary judgment always bears the initial responsibility of . . .
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”); RxD Media, LLC v. IP Application Dev. LLC,
125 USPQ2d 1801, 1803 (TTAB 2018) (“Judges are not like pigs, hunting for truffles buried
in briefs.”) (quoting U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
25 The fact that we have identified one genuine dispute of material fact as a sufficient basis
to deny, as to Classes 1 and 3, Opposer’s motion for summary judgment should not be
construed as a finding that this is necessarily the only dispute that remains for trial as to
these classes. Moreover, evidence submitted in connection with a motion for summary
judgment is of record only for consideration of the motion. To be considered at final hearing,
any such evidence must be properly introduced during the appropriate trial period. See Levi
Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993).
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V. Determination
In view of the foregoing, Opposer’s motion for summary judgment on its sole claim
of likelihood of confusion is granted, in part, with respect to International Class 5 of
Applicant’s involved application, and denied in part as to the remaining classes. As
to International Class 5 only, judgment is entered in favor of Opposer, the opposition
is sustained, and registration of Applicant’s mark is refused as to this class.
VI. Proceedings Resumed
Proceedings are resumed with respect to International Classes 1 and 3 in
Applicant’s application. Remaining dates are reset as follows:
Deadline for Discovery Conference 7/10/2020
Discovery Opens 7/10/2020
Initial Disclosures Due 8/9/2020
Expert Disclosures Due 12/7/2020
Discovery Closes 1/6/2021
Plaintiff’s Pretrial Disclosures Due 2/20/2021
Plaintiff’s 30-day Trial Period Ends 4/6/2021
Defendant’s Pretrial Disclosures Due 4/21/2021
Defendant’s 30-day Trial Period Ends 6/5/2021
Plaintiff’s Rebuttal Disclosures Due 6/20/2021
Plaintiff’s 15-day Rebuttal Period Ends 7/20/2021
Plaintiff’s Opening Brief Due 9/18/2021
Defendant’s Brief Due 10/18/2021
Plaintiff’s Reply Brief Due 11/2/2021
Request for Oral Hearing (optional) Due 11/12/2021
Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
Opposition No. 91252073

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requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125. These include pretrial disclosures, matters in
evidence, the manner and timing of taking testimony, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
final hearing will be scheduled only upon the timely submission of a separate notice
as allowed by Trademark Rule 2.129(a).