Wendy R Littlev.APP Business Ventures LLC

Trademark Trial and Appeal Board

Jul 2, 2021

92070242 (T.T.A.B. Jul. 2, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 2, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Wendy R. Little
v.
APP Business Ventures LLC
_____

Cancellation No. 92070242
_____

John M. Adams of Price & Adams PC,
for Wendy R. Little.
Wendy Peterson of Not Just Patents LLC,
for APP Business Ventures LLC.
_____

Before Mermelstein, Greenbaum and English,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
APP Business Ventures LLC (“Respondent”) owns a registration on the Principal
Register for the mark PENNY FINDER (in standard characters) for “Downloadable
mobile applications for users to find discounts and savings on products by logging
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user content into a searchable database” (“Respondent’s App”) in International Class
9.1
By her Amended Petition to Cancel, which is the operative pleading (see 15
TTABVUE), Petitioner Wendy R. Little (“Petitioner”) seeks to cancel Respondent’s
Registration on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on prior common law rights acquired
through use, and in the alternative, use analogous to trademark use, of the mark
PENNY FINDER (“Asserted Mark”) for “downloadable mobile applications having a
searchable database sold to consumers to use in identifying products that have been
confirmed to sell for a penny in Dollar General stores, as well as other discounted
products sold in Dollar General stores” (“Petitioner’s App”). 12 TTABVUE 10, ¶¶4.2
In its Answer, Respondent denied Petitioner’s salient allegations, and raised
several putative “affirmative defenses,” most of which merely amplify the denials3 or
are not true affirmative defenses (e.g., failure to state a claim).4 14 TTABVUE.

1 Registration No. 5469205 issued on May 15, 2018 from an application filed on October 11,
2017, based upon a claim of first use anywhere and first use in commerce of June 20, 2017
“Respondent’s Registration”).
2 The allegations about Petitioner’s prior technical trademark use of the Asserted Mark are
located at 12 TTABVUE 10, ¶¶4-6. The allegations about Petitioner’s alternative claim of
prior use analogous to trademark use are located at 12 TTABVUE 11-12, ¶¶7-12. The
allegations about likelihood of confusion are located at 12 TTABVUE 12, ¶¶13-15.
3 The amplifications appear to be repackaged arguments that Respondent raised in its Motion
to Dismiss the original Petition to Cancel. 5 TTABVUE.
4 Failure to state a claim upon which relief may be granted is not an affirmative defense.
John W. Carson Found. v. Toilets.com, Inc., 94 USPQ2d 1942, 1949 (TTAB 2010) (“The
asserted defense of failure to state a claim is not a true affirmative defense because it relates
to an assertion of the insufficiency of the pleading of opposer’s claim rather than a statement
of a defense to a properly pleaded claim.”). We address the sufficiency of Petitioner’s claim
below.
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The cancellation is fully briefed.
Preliminary Matters
A. Sufficiency of Pleaded Section 2(d) Claim
Although all allegations about Petitioner’s ownership and use of the Asserted
Mark are “[b]ased on information and belief,” Respondent did not file a motion to
dismiss or for a more definite statement. Instead, Respondent maintains in its Brief
that the Amended Petition to Cancel fails to state a claim. 42 TTABVUE 17-20
(“ARGUMENT: INSUFFICIENT PLEADING”). We disagree. The allegations in the
Amended Petition to Cancel provide sufficient notice pleading of a likelihood of
confusion claim under Section 2(d) based on both Petitioner’s acquisition of prior
common law rights to the Asserted Mark through technical trademark use
(paragraphs 4-6) and use analogous to trademark use (paragraphs 7-12) with
Petitioner’s App (paragraphs 13-15). 12 TTABVUE 10-12. See Fair Indigo LLC v.
Style Conscience, 85 USPQ2d 1536, 1538 (TTAB 2007) (“Under the simplified notice
pleading of the Federal Rules of Civil Procedure, the allegations of a complaint should
be construed liberally so as to do substantial justice.”).
B. Motion to Amend Answer
During Respondent’s trial period, Respondent filed a Motion to Amend its Answer
to conform to the testimony and evidence submitted by Petitioner by adding three
“affirmative defenses” pursuant to Fed. R. Civ. P. 15(b):
 Petitioner is not the “owner of the rights pleaded” (“affirmative defense”
number 8);
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 “no legal use in commerce for the pleaded app by the Petitioner”
(“affirmative defense” number 9); and
 “no legal use in commerce and no priority of ‘DG PENNY FINDER’”
(“affirmative defense” number 10).
31 TTABVUE 2-5; 31 TTABVUE 12-13, ¶¶8-10.
The Motion to Amend is contested, 34 TTABVUE, and the Board deferred
consideration thereof until issuance of this Final Decision. 38 TTABVUE. For the
reasons discussed below, the Motion to Amend is denied.
“Affirmative defense” number 8 is in the nature of an “affirmative defense” that
Petitioner is not entitled to a statutory cause of action (formerly referred to as
“standing,” and addressed below). Entitlement to a statutory cause of action is an
element of Petitioner’s asserted claim that she must prove as part of her case. See
Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA
1982); Blackhorse v. Pro Football Inc., 98 USPQ2d 1633, 1637 (TTAB 2011). Lack of
such entitlement is not an affirmative defense.5
“Affirmative defense” number 9 comprises allegations of misconduct by Petitioner
based on Petitioner’s alleged prohibited use of Dollar General’s website and app to
build the database for Petitioner’s App, and of Dollar General’s product listings and
prices in violation of the Terms of Use posted on Dollar General’s website. And
“affirmative defense” number 10 comprises allegations of misconduct by Petitioner

5 Even though we do not allow Respondent to file an amended answer to assert “affirmative
defense” number 8, we consider Respondent’s argument about Petitioner’s ownership of the
Asserted Mark in the section entitled “Statutory Entitlement to Petition to Cancel.”
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based on Petitioner’s alleged unlicensed use of Dollar General’s trademark, “DG,” “in
the name of the Penny Puss app” and associated promotional materials, and
Petitioner’s “criminal counterfeiting by spuriously placing DG on the goods being
sold,” which “was/is also expressly prohibited by Dollar General’s terms of use and as
well as being prohibited by the Lanham Act.” 31 TTABVUE 12-13, ¶10.
“Affirmative defense” numbers 9 and 10 are in the nature of affirmative defenses
of unclean hands. However, Respondent has not asserted a viable affirmative defense
of unclean hands because such defense must be related to the claims against which
they are asserted. See Tony Lama Co., Inc. v. Di Stefano, 206 USPQ 176, 179 (TTAB
1980) (“It might be emphasized, however, that the concept of unclean hands must be
related to a plaintiff’s claim, and misconduct unrelated to the claim in which it is
asserted as a defense does not constitute unclean hands.”). Respondent’s allegations
of misconduct pertain to Petitioner’s alleged misuse of the website, app and mark
(“DG”) of Dollar General (an unrelated third party), and are unrelated to Petitioner’s
claim of likelihood of confusion. Id. at 179; see also Warnaco Inc. v. Adventure Knits,
Inc., 210 USPQ 307 (TTAB 1981) (“the concept of unclean hands denying relief to a
plaintiff is not intended to serve as a punishment for extraneous transgressions”);
VIP Foods, Inc. v. V.I.P. Food Prods., 200 USPQ 105, 112-13 (TTAB 1978)
(“misconduct in the abstract, unrelated to the claim in which it is asserted as a
defense does not constitute unclean hands”).6

6 In addition, Respondent may not challenge the existence or validity of Petitioner’s rights by
alleging that any such rights conflict with those of an unrelated third party. “[T]he conflict
here is between petitioner and respondent and not between petitioner and the world.” Krug
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Further, “affirmative defense” number 10 pertains to “DG Penny Finder,” which
is not the Asserted Mark, as discussed below. Therefore, this “affirmative defense” is
not relevant.
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 Respondent’s Registration.
During her testimony period, Petitioner submitted a Notice of Reliance (24
TTABVUE) on Respondent’s responses to Petitioner’s Interrogatories, Document
Requests and Requests for Admission,7 and Respondent’s Initial Disclosures and
Document Production, as well as the Testimony Declarations, with exhibits, of (1)
Petitioner (“Little Test. Dec.”) and (2) Angi P. Amerson (“Amerson Test. Dec.”)
Petitioner’s Administrative Assistant “in the operation and management of Ms.
Little’s Penny Puss Facebook group and PennyPuss.com in the marketing and sale of
Ms. Little’s Penny Finder app for use in finding discounted items at Dollar General

Vins Fins de Champagne v. Rutman Wine Co., 197 USPQ 572, 574-75 (TTAB 1977) (citations
omitted).
7 Written responses to document requests are admissible only for purposes of showing that
Respondent has stated that there are no responsive documents. See City Nat’l Bank v. OPGI
Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674 n.10 (TTAB 2013) (responses to
document production requests are admissible solely for purposes of showing that a party has
stated that there are no responsive documents).

In addition, Respondent’s responses to Petitioner’s Requests for Admission include denials.
Denials to admission requests cannot be submitted under a notice of reliance. Trademark
Rule 2.120(k)(3)(i), 37 C.F.R. § 2.120(k)(3)(i); see also Life Zone Inc. v. Middleman Grp. Inc.,
87 USPQ2d 1953, 1957 (TTAB 2008) (“[U]nlike an admission (or a failure to respond which
constitutes an admission), the denial of a request for admission establishes neither the truth
nor the falsity of the assertion, but rather leaves the matter for proof at trial.”).
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stores (‘Dollar General’)” 24 TTABVUE 179, ¶4, and the Expert Report of Jeffrey
Chromulak, Petitioner’s expert witness, also with exhibits.8
During its testimony period, Respondent submitted a First Notice of Reliance (27
TTABVUE) on 26 third-party registrations owned by Dollar General for DOLLAR
GENERAL and DG-inclusive marks (and an associated chart summarizing the
registrations), and printouts of statutes pertaining to counterfeiting; a Second Notice
of Reliance (30 TTABVUE) on Terms of Use from Dollar General, Facebook and
YouTube; and transcripts of the cross-examination testimony of Petitioner’s
witnesses Ms. Amerson (28 TTABVUE) and Ms. Little (29 TTABVUE).
During her rebuttal testimony period, Petitioner submitted the Rebuttal
Testimonial Declaration of Petitioner (“Little Rebuttal Test. Dec.”) (39 TTABVUE)
with exhibits, and the Rebuttal Testimonial Declaration of Ms. Amerson (“Amerson
Rebuttal Test. Dec.”) (40 TTABVUE).
Objections
Respondent’s Brief includes a section titled “Objections,” none of which pertain to
the admissibility of the testimony or evidence. Rather, most of the “objections” raise
questions about the legal or evidentiary support of certain statements made in
Petitioner’s Brief or the testimony of Petitioner’s witnesses.
There is no compelling need to discuss any of the “objections” specifically. The
Board is capable of assessing the proper evidentiary weight to be accorded the

8 The submission of testimony declarations under a notice of reliance, as Petitioner has done,
is not the preferred approach, but it is harmless. Ricardo Media Inc. v. Inventive Software,
LLC, 2019 USPQ2d 311355, *3 (TTAB 2019).
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testimony and evidence, taking into account the concerns raised by the “objections.”
Suffice it to say, we have considered all of the testimony and exhibits submitted. In
doing so, we have kept in mind the various “objections” raised by Respondent and we
have accorded whatever probative value the subject testimony and evidence merit.
See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479
(TTAB 2017).
Statutory Entitlement to Petition to Cancel9
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 125-26, 109 USPQ2d 2061, 2067 n.4 (2014)).
A party in the position of plaintiff may petition to cancel a registration when the cause
of action is within the zone of interests protected by the statute, 15 U.S.C. § 1064,
and the plaintiff has a reasonable belief in damage that is proximately caused by the
continued registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
2020 USPQ2d 11277, at *6-7 (Fed. Cir. 2020), cert. denied, ___ S. Ct. ___ (2021).
“Proof of [entitlement to a statutory cause of action] in a Board [cancellation] is a
low threshold, intended only to ensure that the plaintiff has a real interest in the
matter, and is not a mere intermeddler.” Syngenta Crop Prot. Inc. v. Bio-Chek LLC,

9 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” As noted above, 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 Sections 13
and 14 remain equally applicable.
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90 USPQ2d 1112, 1117 n.8 (TTAB 2009) (citing Ritchie v. Simpson, 170 F.3d 1092,
50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)). Demonstrating a real interest in
cancelling the registration of a mark satisfies the zone-of-interests requirement, and
demonstrating a reasonable belief in damage by the registration of a mark suffices to
show damage proximately caused by registration of the mark. Corcamore, LLC, 2020
USPQ2d 11277, at *7-8; see also Philanthropist.com, Inc. v. Gen. Conference Corp. of
Seventh-Day Adventists, 2021 USPQ2d 643, *12-13 (TTAB 2021). “In most settings,
a direct commercial interest satisfies the ‘real interest’ test.” Herbko Int’l v. Kappa
Books, 308 F.3d 1156, 64 USPQ2d 1375, 1377 (Fed. Cir. 2002). Petitioner’s testimony
and evidence about Petitioner’s use of the Asserted Mark in connection with
Petitioner’s App in videos posted on Petitioner’s YouTube channel (Little Test. Dec.,
24 TTABVUE 102-103, ¶¶21-23) and the Penny Puss Facebook group (id. at 101,
¶15), discussed below, establish Petitioner’s “direct commercial interest” and
entitlement as a competitor to Respondent. See, e.g., Books on Tape, Inc. v. Booktape
Corp., 836 F.2d 519, 5 USPQ2d 1301, 1302 (Fed. Cir. 1987) (finding competitor has
standing because it has an interest in the outcome beyond that of the general public);
Peterson v. Awshucks SC, LLC, 2020 USPQ2d 11526, at *6 (TTAB 2020) (entitlement
to a statutory cause of action found where petitioner and respondent are competitors).
Respondent’s argument that Petitioner is not entitled to a statutory cause of
action because she is not the owner of the Asserted Mark is unpersuasive. Petitioner
is not required to demonstrate proprietary rights in a mark to establish entitlement
to a statutory case of action. Australian Therapeutic Supplies, 2020 USPQ2d 10837,
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at *3. She need only establish a legitimate interest in seeking to cancel the
registration and a reasonable belief in damage if Respondent’s Registration is allowed
to subsist. Id. Petitioner has done that here.
Priority and Likelihood of Confusion
“A party claiming prior use of a registered mark may petition to cancel the
registration on the basis of such prior use pursuant to section 14 of the Lanham Act.
15 U.S.C. Section 1064.” W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 31
USPQ2d 1660, 1662 (Fed. Cir. 1994). As the alleged prior user, Petitioner bears the
burden of proving her claim of acquisition of prior proprietary rights in the Asserted
Mark by a preponderance of the evidence. Hydro-Dynamics, Inc. v. George Putnam &
Co., Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987); cf. Embarcadero
Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825, 1834 (TTAB 2013). (“[O]pposer must
prove by a preponderance of the evidence that its common law rights were acquired
before any date upon which applicant may rely.”).
“As a general matter, priority in a Trademark Act § 2(d) case goes to the party
which made first use of its mark on the relevant goods.” Cent. Garden & Pet Co. v.
Doskocil Mfg. Co., 108 USPQ2d 1134, 1139 (TTAB 2013). Here, Respondent may rely
on its Registration as proof of constructive use of the mark PENNY FINDER as of
October 11, 2017, which is the filing date of its underlying application.10 Hydro-
Dynamics, 1 USPQ2d at 1773; see also Trademark Act § 7(c).

10 Respondent’s Registration claims June 20, 2017 as the date of first use and first use in
commerce of Respondent’s PENNY FINDER mark, as noted above. However, this alleged
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Because Petitioner does not own a U.S. registration, she bears the burden of
demonstrating a proprietary interest acquired through use of the Asserted Mark prior
to Respondent’s October 11, 2017 constructive use date.11 See Herbko Int’l, 64
USPQ2d at 1378; Otto Roth & Co. v. Univ. Foods Corp., 640 F.2d 1317, 209 USPQ 40,
43-45 (CCPA 1981). This proprietary interest may arise from a prior registration,
prior trademark or service mark use, prior use as a trade name, prior use analogous
to trademark or service mark use, or any other use sufficient to establish proprietary
rights. Herbko, 64 USPQ2d at 1378.12 It is the commercial usage of a trademark
which creates trademark rights. Reflange Inc. v. R-Con Int’l, 17 USPQ2d 1125, 1130
(TTAB 1990).
A. Clarification of Asserted Mark
Petitioner testified that she uses the Asserted Mark to refer to Petitioner’s App
(Little Test. Dec., 24 TTABVUE 101-106, ¶¶15, 19, 26, 35, 36, 38, 42, 43), but the
bulk of Petitioner’s testimony and nearly all of Petitioner’s documentary evidence
pertain to Petitioner’s use of the Asserted Mark with other terms such as “DG Penny

date of use is neither evidence on Respondent’s behalf, nor has it been established by
competent evidence. See Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2).
11 In light of our disposition of this proceeding, we have not considered Petitioner’s testimony
and evidence about use of the Asserted Mark after October 11, 2017.
12 As noted above, Petitioner alleges both use and use analogous to trademark use prior to
Respondent’s use of Respondent’s Mark, and in her Briefs, Petitioner argued both theories in
the alternative. See Petitioner’s Brief, 41 TTABVUE 21 (“Petitioner bases her claim of
priority on use analogous to trademark use of PENNY FINDER since December 2014 and
based on technical trademark use beginning July 2015.”) and Petitioner’s Rebuttal Brief, 43
TTABVUE 16 (“Petitioner has proven by a preponderance of evidence that she should prevail
on priority of use to the name PENNY FINDER based on use analogous to trademark use, as
well as technical trademark use.”).
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Finder” (e.g., id. at ¶¶18, 21), “Penny Puss DG Penny Finder” (e.g., id. at 103, ¶¶23,
26), and “‘DG Penny Finder’ followed by the letters “YMMV” which mean “Your
Mileage May Vary” (e.g., id. at 104, ¶30).13 See also, e.g., id. at 130-131 (Exhibit E11)
(“Search DG penny finder.”, “DG penny finder … YMMV”, “How to use the Penny
Puss DG Penny Puss Penny Finder App for Android”, and “Share your penny pics for
use in DG penny finder”); id. at 140 (Exhibit E13, p.5) (“How to use the Penny Puss
APP with DG Penny Finder”); and Petitioner’s Brief, 41 TTABVUE 3-4 (“Table of
Contents”/“Recitation of Facts,” with various references to “PENNY FINDER” and
“DG PENNY FINDER”).
Petitioner summarizes her various uses as follows:
For the period of time from the initial use and sale on
December 23, 2014 of the app under the Penny Finder
mark, I have used a number of different names for the app
beginning with my business name and house mark ‘Penny
Puss’. I have also used the names ‘Penny Puss Penny
Finder’, ‘Penny Puss APP with DG Penny Finder’ and ‘DG
Penny Finder’ for the app. However, since December 2014
to the present date I have continuously used the name
Penny Finder to identify the app which I have advertised
and sold to shop at Dollar General.
Little Test. Dec., 24 TTABVUE 104, ¶34.
Despite this muddled record, “Penny Finder” is the only term that was pleaded,
or even mentioned, in the Amended Petition to Cancel,14 and Petitioner did not file a

13 As to the significance of the term “YMMV,” Petitioner testified: “In other words, the results
that a user may obtain from purchasing the DG Penny Finder app at Dollar General may
vary based on the location of the store and the items which that store has discounted.” Little
Test. Dec., 24 TTABVUE 104, ¶30. Accord, Amerson Test. Dec., 24 TTABVUE 181, ¶13.
14 Respondent, in its Brief, focuses on the phrase “PENNY PUSS WITH DG PENNY
FINDER” (e.g., “Issues for Review,” 42 TTABVUE 5). The phrase does not appear in the
Amended Petition to Cancel and neither of Petitioner’s witnesses testified about it. The
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motion under Fed. R. Civ. P. 15 to amend the pleadings or to conform to the evidence
to assert a claim of likelihood of confusion based on prior use (or use analogous) of
any trademark other than the Asserted Mark. Rather, Petitioner explains that she
relies solely on the Asserted Mark. In particular, on oral cross-examination,
Petitioner testified that even though she uses “DG Penny Finder” in association with
Petitioner’s App, her trademark is “just Penny Finder”:
Q. … When you use DG, you’re claiming that this is your
trademark to use?
A. No, just Penny Finder.
Q. Okay. So when it says “DG Penny Finder,” you’re saying
that people don’t perceive that “DG” at the beginning?
A. It’s just – it’s like saying “Dollar General Penny Finder.”
It’s descriptive.
29 TTABVUE 15.
Likewise, although Ms. Little, in her Rebuttal Testimony Declaration, refers to
Petitioner’s App as both “Penny Finder” (e.g., 39 TTABVUE 5-8, ¶¶9, 10, 20) and “DG
Penny Finder” (e.g., id. at 5, ¶8, and at 8, ¶21), she states, again, that her “trademark”
is “Penny Finder”: “In identifying my app by the trademark Penny Finder, I have also
used the terms ‘Dollar General’ and ‘DG’ which identify the Dollar General store
where the discounted products are available for use.” Id. at 6, ¶11.

phrase appears once in Mr. Chromulak’s Expert Report, as part of his discussion of what
Petitioner’s App looks like and how it works: “‘Penny Finder FAQs’ portion of the mobile
application seeks to answer common questions about the functionality of the Penny Puss with
DG Penny Finder application.” 24 TTABVUE 202, ¶4. We do not view this single reference
as a claim by Petitioner of use of the phrase as a trademark.
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As best we can discern, Petitioner’s priority claim rests solely on her alleged use
of the Asserted Mark, PENNY FINDER, alone, and not in conjunction with other
terms, such as “DG” or “Penny Puss.” We proceed accordingly.
B. Totality of Petitioner’s Evidence
Precedent requires us to “look at the evidence as a whole, as if each piece of
evidence were part of a puzzle which, when fitted together, establishes prior use.” W.
Fla. Seafood, 31 USPQ2d at 1663. We keep this directive in mind as we consider
Petitioner’s testimony and evidence concerning Petitioner’s use of the Asserted Mark
in association with Petitioner’s App prior to Respondent’s constructive use date of
October 11, 2017. We note, however, that Petitioner’s testimony about the Asserted
Mark and her use of it, discussed above, is riddled with inconsistencies and
contradictions, and therefore is insufficient, by itself, to prove priority.15 Cf.
Powermatics, Inc. v. Global Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430, 432
(CCPA 1965) (oral testimony, even of a single witness, if sufficiently probative, may
be sufficient to establish priority of use).
Here, none of the evidence shows technical or analogous use of the Asserted Mark
as a trademark under Section 45 of the Trademark Act, 15 U.S.C. § 1127 (to function
as a trademark under Section 45, a “word, name, symbol, or device, or any
combination thereof” must, by definition, “identify and distinguish [the] goods … from

15 Ms. Amerson’s testimony shares the same evidentiary infirmities as Petitioner’s testimony,
as Ms. Amerson variously refers to Petitioner’s App as the “Penny Finder app” (Amerson
Test. Dec., 24 TTABVUE 181-182, ¶¶12, 15, 18-20) and the “DG Penny Finder app.” (id. at
181-182, ¶¶14, 16-18, 21, 22). She also references the “Penny Finder mark” (id. at 182-183,
¶¶23-24) and the mark “DG Penny Finder YMMV” (id. at 181, ¶13).
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those manufactured or sold by others and … indicate the source of the goods, even if
that source is unknown”). Indeed, the only evidence that shows use of the Asserted
Mark without the terms “DG,” “Penny Puss” or both, displays the Asserted Mark as
part of the sentences “This app explained how to use the penny finder.” and “How to
use the penny finder.” Such uses are informational, rather than source identifying,
in nature.
The earliest example appears in a November 2014 video for members of the Penny
Puss Facebook group (Little Test. Dec., 24 TTABVUE 101, ¶¶15, 17), with an
associated post from Ms. Amerson to “Penny Puss Penny Deals” stating “This is how
the app now looks and works. It’s only a brief demo….” Exhibit E3, 24 TTABVUE
110, is reproduced below.

Other uses of the Asserted Mark include use as part of the phrase “DG Penny
Finder … YMMV”. This phrase first appeared in a “how to use” video for Petitioner’s
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App in December 2014, followed by a revised video at the end of that month, and
several subsequent updates. Little Test. Dec., 24 TTABVUE 102, ¶¶18-19. Below are
screenshots from two pages of one such video, displaying the phrase “DG Penny
Finder … YMMV” with a 2015 copyright to Penny Puss in the middle of the
screenshots, and the same associated post as above from Ms. Amerson to “Penny Puss
Penny Deals” stating “This is how the app now looks and works. It’s only a brief
demo….” The Asserted Mark appears as part of the larger, unitary expression “DG
Penny Finder … YMMV”, and does not serve as a separate source indicator. The
second and third pages of Exhibit E6, TTABVUE 115-116, are reproduced below.16

16 The first and last pages of Exhibit E6, 24 TTABVUE 114 and 117, have not been reproduced
because they do not display the words “penny finder.”
Exhibit E14 (24 TTABVUE 147) looks nearly identical to Exhibit E6. Regarding Exhibit E14,
Petitioner testified that “On November 22, 2015 Ms. Amerson produced a video which was
presented in my Facebook group on how to use the Penny Puss with Penny Finder app.” 24
TTABVUE 103, ¶27.
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Petitioner also used the phrase “DG penny finder … YMMV” above the sentence
“Some items may have reset.” and a copyright to “PennyPuss” (undated) in Exhibit
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E10, a video titled “How to use our Penny App for Penny Shopping at Dollar General”
which was posted on Petitioner’s Penny Puss YouTube channel on January 12, 2015.
Little Test Dec., 24 TTABVUE 102, ¶21, and 24 TTABVUE 104, ¶32. The first page
of Exhibit E10, 24 TTABVUE 127, is reproduced below.17

According to Petitioner, “The initial video I posted on YouTube on how to use the
app on January 12, 2015 predominantly associated the mark DG Penny Finder with
the app. Exhibit E10 attached hereto. During the following months we were
constantly upgrading the app to include new discounted items but always identifying

17 The second page of Exhibit E10 is undated, and refers to a YouTube video titled “How to
use the Penny Puss DG Penny Finder App for Android”. We do not reproduce this page
because it does not appear to be part of the video comprising Exhibit E10.
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the app as DG Penny Finder. Exhibit E18 attached hereto.” Little Test. Dec., 24
TTABVUE 104, ¶32.
We discussed Exhibit E10 immediately above. Exhibit E18 shows a portion of
Petitioner’s App, including the name “Penny Puss” in what appears to be the address
bar, directly above a search box that allows users to “Search DG penny finder.”; the
phrase “DG penny finder … YMMV” is in the middle, directly above the phrase “Some
items may have reset” and a copyright to PennyPuss (undated); and links to “90%
off,” “4/7 Penny List” and “3/24 Penny List” appear on the bottom.18 As with the prior
exhibits, the Asserted Mark does not perform a source identifying function in Exhibit
E18. Exhibit E18, 24 TTABVUE 151, is reproduced below.

18 In the Notice of Reliance, Petitioner identifies Exhibit E18 as “a true and correct printout
of a screenshot from a video posted in facebook.com/groups/Penny_Puss_Penny_Deals.” 24
TTABVUE 6.
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Other uses of the Asserted Mark in 2015 are as part of a July 21, 2015 video titled
“‘How to Use the Penny Puss DG Penny Finder App for Android’ available on
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Amazon.” Petitioner testified that the video, identified as Exhibit E11, was made
available to the public on her YouTube channel. Little Test. Dec., 24 TTABVUE 103,
¶23. The screenshot of this video displays the sentence “Search DG penny finder.” in
the search box at the top; the phrase “DG penny finder … YMMV” above a 2015
copyright notice to Penny Puss, in the middle; and the sentence “How to use the penny
finder.” above FAQs, both with links, at the bottom. The first sentence on the second
page reads “Share your penny pics for use in DG penny finder.” The Asserted Mark
appears several times in Exhibit E11, but never in a capacity which indicates source.
Exhibit E11, 24 TTABVUE 130-131, is reproduced below.

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Referencing Exhibit E12, Petitioner testified that “[t]he app was first available for
purchase through the Amazon Store on July 23, 2015 at a price of $4.99 and was
identified as The Penny Puss DG Penny Finder app.” Little Test. Dec., 24 TTABVUE
103, ¶26. The top of the first page of Exhibit E12 shows an image of a cat next to the
wording “Penny Puss,” along with the price and two references to “this app” (“Save
up to 20% on this app and its in-app items…” and “This app needs permission to
access…). “Original Release Date: July 23, 2015” appears in the “Product details”
section at the bottom of the first page. The sole reference to “The Penny Puss DG
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Penny Finder app” is buried in the middle of the second page, in the first sentence
under the heading “Product description”: “The Penny Puss DG Penny Finder App is
a database of PAST items that have been confirmed to ring as a penny in the DG
stores.” This sole reference does not show use of the Asserted Mark as a source
indicator. The Asserted Mark does not appear elsewhere in this exhibit. Exhibit E12,
24 TTABVUE 133-134, is reproduced below.

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As mentioned above, Petitioner testified “I have continuously also used the mark
‘Penny Finder’ to identify and sell the app featured on my Facebook videos beginning
January 2015 to the present date.” 24 TTABVUE 103, ¶26. Petitioner references
Exhibit E13, which consists of multiple screenshots, including several that we have
not considered because their dates are illegible. See Trademark Rule 2.126(a)(2), 37
C.F.R. § 2.126(a)(2) (“Exhibits pertaining to an electronic submission must be made
electronically as an attachment to the submission and must be clear and legible.”).
See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba Watermark Cruises,
107 USPQ2d 170, 1758 n.16 (TTAB 2013) (“[T]he onus is on the party making the
submissions to ensure that, at a minimum, all materials are clearly readable by the
adverse party and the Board”), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014).
Below are the three screenshots of YouTube videos from Exhibit E13 with dates
clearly preceding Respondent’s constructive use date of October 11, 2017. The first
and second screenshots closely resemble each other, and also resemble previously
discussed Exhibit E11, 24 TTABVUE 130. The first screenshot is titled “‘How to use
the Penny Puss DG Penny Finder App for Android’ available on Amazon” (the same
title as Exhibit E11, 24 TTABVUE 130). 24 TTABVUE 138. The second screenshot is
titled “Dollar General Christmas markdowns for 1/19.”19 24 TTABVUE 139. The third
is a screenshot of a YouTube video titled “How to use the Penny Puss APP with DG
Penny Finder.” which also is the sole wording that appears in the screenshot. The

19 Petitioner submitted as the third page of Exhibit E9 a slightly less cropped version of this
screenshot, showing the wording “Penny Puss” in what appears to be the address bar at the
top of the screenshot. 24 TTABVUE 123.
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first sentence of the associated post by “Penny Puss,” published on August 15, 2017,
states: “This is an updated video on how to use the Penny Puss App with DG Penny
Finder.” 24 TTABVUE 140. As with the previously discussed exhibits, the Asserted
Mark appears several times in Exhibit E13, but none indicate source. The three pages
from Exhibit E13, 24 TTABVUE 138-140, appear as follows:

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Pointing to Exhibit E15, Petitioner testified: “On January 18, 2016, I produced a
new video on YouTube and published it on my website PennyPuss.com and shared it
to my Facebook group, updating use of the DG Penny Finder app.” 24 TTABVUE 103,
¶28. Exhibit E15 is a screenshot of a YouTube video titled “Dollar General Christmas
markdowns for 1/19” (the same title as Exhibit E13, 24 TTABVUE 139), but it does
not show use of the Asserted Mark at all. Rather, the single-page exhibit simply
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displays the wording “Not a Penny” and “Christmas Clearance Markdown!” Exhibit
15, 24 TTABVUE 148, is displayed below.20

Also according to Petitioner, on June 5, 2016, Petitioner’s App was added to the
Google Play Store (Little Test. Dec., 24 TTABVUE 103, ¶29, referencing Exhibit E16,
24 TTABVUE 149) and to the Apple Store (Little Test. Dec., 24 TTABVUE 104, ¶31,
referencing Exhibit E17, 24 TTABVUE 150).

20 Given the title of the video and the number of “views,” Exhibit E15 appears to be related
to Exhibit E13, 24 TTABVUE 139.
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Exhibit E16 displays the same image of a cat next to the words “Penny Puss” as
in Exhibit E12 (from the Amazon Store), above what appears to be a screenshot of
two frames of the video submitted as the first page of both Exhibits E11 and E13,
with the first frame looking like a cropped version of the second—the second frame
also includes the wording “Penny Puss” in the address bar at the top of the frame, as
in Exhibit E9, 24 TTABVUE 123, and Exhibit E18, 24 TTABVUE 151. Exhibit E16,
25 TTABVUE 149, is displayed below.

Exhibit 17 displays a cartoon image of a cat next to the wording “Penny Puss”,
above four illegible screenshots that appear side by side. As best we can discern, the
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first and fourth screenshots include the phrase “DG penny finder … YMMV” and look
very similar to the video submitted as the first page of both Exhibits E11 and E13.

Referencing Exhibit E20 (24 TTABVUE 156-163), a report from the Google Play
Store showing the “volume and frequency of sales” of “my Penny Finder app for the
month of July 2016,” Petitioner testified that “Sales of my Penny Finder app have
been continuous since the first sale in December 2014 to the present date.” Little
Test. Dec., 24 TTABVUE 104, ¶35. Exhibit E20 exclusively lists “Penny Puss.com”
under the “Product” heading. The Asserted Mark does not appear in this exhibit. The
first page of Exhibit E20, 24 TTABVUE 156, is displayed below.
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Petitioner also submitted as Exhibit E21 two pages of “Analytics” compiled by
Swiftic, which “maintains” Petitioner’s App, showing “user view[s] of my Penny
Finder app,” from December 6, 2014 to June 9, 2017 (24 TTABVUE 164) and from
December 6, 2014 to September 7, 2019 (24 TTABVUE 165). Little Test. Dec., 24
TTABVUE 105, ¶¶36-38. The Swiftic “Analytics” reports do not do not display or
mention any mark, and we do not reproduce the reports here.
Petitioner also submitted as part of Exhibit E21 a single page “Analytics” report
from the Apple App Store (24 TTABVUE 166), which is “a source for sales of the app,”
for June 5, 2016 to December 17, 2019. Little Test. Dec., 24 TTABVUE 105, ¶¶36-38.
The App Store “Analytics” displays “Penny Puss” as the “Name” of the app, with no
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reference to the Asserted Mark. The third page of Exhibit E11, 24 TTABVUE 166, is
displayed below.

Given the dearth of evidence of Petitioner’s use of the Asserted Mark as a source
indicator for Petitioner’s App, Petitioner’s inconsistent references in her testimony
and the associated exhibits to the name of Petitioner’s App as, inter alia, “DG penny
finder,” “DG penny finder … YMMV,” “Penny Puss DG Penny Finder,” and “penny
finder,” detailed above, and Petitioner’s inconsistent references in her Briefs to the
name of Petitioner’s App as “DG penny finder” and “Penny Finder,” we do not view
Petitioner’s testimony about and exhibits from the Google Play Store, Apple Store
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Connect, or Swiftic “Analytics” as probative evidence of Petitioner’s use of the
Asserted Mark as a trademark to identify Petitioner’s App.21
Conclusion
We have considered all of the testimony and evidence pertaining to Petitioner’s
use of the Asserted Mark (PENNY FINDER) in association with Petitioner’s App
prior to Respondent’s constructive use date of October 11, 2017. See W. Fla. Seafood,
31 USPQ2d at 1663. As discussed above, however, Petitioner submitted no competent
evidence of use of the Asserted Mark as a source identifier for Petitioner’s App prior
to that date.
In addition, as previously noted, oral testimony, even of a single witness, if
sufficiently probative, may be sufficient to establish priority of use. Powermatics, 144
USPQ at 432. See also Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d
1175, 1184 (TTAB 2017). Here, however, the testimony of Petitioner is far from clear,
and the corroborating testimony of Ms. Amerson does not illuminate the manner in
which Petitioner used the Asserted Mark as a trademark on or in connection with
Petitioner’s App prior to October 11, 2017.

21 In her Rebuttal Testimony Declaration, Petitioner testified that she received revenue from
“App Store Connect of sales of my Penny Finder app for the period of time December 2016 to
March 2020” and “from Google Payment Center for sales of my Penny Finder app for the
period of time June 15, 2017 to September 15, 2020[,]” but the associated exhibits (Exhibit
G6 and Exhibit G8) do not indicate that the payments are for any app under any name. Little
Rebuttal Test Dec., 39 TTABVUE 8, ¶¶22, 24; Exhibit G6, 39 TTABVUE 15-58; and Exhibit
G8, 39 TTABVUE 60-64. For the same reasons discussed above, neither the testimony nor
the exhibits are probative of Petitioner’s use of the Asserted Mark in association with
Petitioner’s App.

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Petitioner has not demonstrated, by a preponderance of evidence, the threshold
element that she acquired proprietary rights in the Asserted Mark, either through
use as a trademark or use analogous to use as a trademark, before Respondent’s
constructive use date of October 11, 2017. Therefore, Petitioner cannot prevail in her
claim of likelihood of confusion under Section 2(d) of the Trademark Act. See Exec.
Coach Builders, 123 USPQ2d at 1199.
Decision: The Amended Petition to Cancel is denied.