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Welch How do you think this came out? In re Wasser , Serial No. Lee Co. Maidenform Inc. With respect to third-party registrations, the Board noted: While third-party registrations are not evidence that the marks shown therein are in commercial use, or that the public is familiar with them, such registrations that individually cover a number of different items and are based on use in commerce have probative value to the extent that they serve to suggest that the listed goods are of a kind that may emanate from a single source under a single mark.
No, said the Board, only by oral cross-examination. Laverne J.
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Andrusiek v. Petitioner Andrusiek moved for leave to take the cross-examination of two witnesses, both located in the United States, on written questions.
It pointed to the expense and inconvenience of oral depositions because the witnesses were in Tampa, Florida, while petitioner is located in the State of Washington. In opposition to the motion, Respondent Cosmic Crusaders pointed to Rules 2. The Trademark Rules allow a party to take the testimony by affidavit or declaration under Rule 2.
Where, as here, testimony is presented by affidavit or declaration, Trademark Rules 2.
The Board noted that the Rules do not require that oral cross-examination be conducted in person. It may be conducted by telephone or other remote means either through stipulation or on motion for good cause.
See Fed. Healthcare Pers. The Board construed Petitioner Andrusiek's motion as, alternatively, seeking leave to take oral cross-examination by telephone or other remote means. Since it is Respondent who has insisted on oral cross-examination, the Board sees neither harm nor prejudice to Respondent in permitting Petitioner to conduct such cross-examination by remote means should Petitioner elect to do so.
Finally, the Board pointed out that respondent will bear the expense of producing the witness, but petitioner must schedule and bear the expense of the court reporter. See Barclays Capital Inc. Tiger Lily Ventures Ltd. Redirect or recross must be taken at the same time as the cross-examination.
Applicant Chang argued that the parties' respective restaurants differ dramatically in style of food and atmosphere, but the Board pooh-poohed that argument, observing that there are no such limitations in the application or cited registration.
In re Chang , Serial No. Since the involved services are "legally identical," they are presumed to travel in the same channels of trade to the same class of consumers.
His appeal brief stated that "it has recently come to light that KOPAN as used in the mark is a fanciful term that combines the words Korea and Japan. As to the marks, Applicant Chang conceded that "izayaka" means "gastropub" in Japanese and that "ramen" is descriptive of the food items on the menu.
Both words were disclaimed by Chang, and therefore these two words have less significance in the Section 2 d analysis. The design of a bowl with chopsticks merely emphasizes the literal element in the applied-for mark.
Since the mark in the cited registration is in standard character form, it could be presented in the same size, font, and color as applicant's mark.
The Board found that the marks have the same connotation and commercial impression. Balancing the relevant du Pont factors, and concluding that the marks are "similar in sight and sound and especially in connotation and commercial impression," the Board affirmed the Section 2 d refusal to register.
But we know that side-by-side comparison is not the proper test under Section 2 d. So nevermind.
Thursday, June 20, 2019
Text Copyright John L. Johnny D. Gabriel and Rosalie Gabriel , Opposition No. The inquiry as to bona fide intent is "not into Applicant's subjective state of mind alone. The Board found it unnecessary to decide whether the lack of bona fide intent by one of two joint applicants renders the application invalid, because it concluded that her co-applicant and husband, Johnny D.
Gabriel, also lacked a bona fide intent to use the mark in commerce.
Lack of Documentary Evidence: An opposer may establish a prima facie case of lack of bona fide intent by establishing that the applicant has no documentary evidence to support its claim.
The burden of production then shifts to the applicant to come forward with evidence "adequately explaining or outweighing the failure to provide such documentary evidence. The earliest documents provided by applicants were dated November The fact that these documents were created well after the filing date is not dispositive of the issue, since such documentation may corroborate the claim of a bona fide intent to use the mark as of the filing date.
Here, however, no documents preceded the filing date of the notice of opposition August 31, Moreover, regarding the application, Mr. And applicants filed an I-T-U application in for the same mark, which application went abandoned after they failed to file a statement of use, suggesting that "Applicants had the idea to use the term for many years but had not done so.
Gabriel: "I have never distilled or produced tequila in my life. Under the circumstances, the Board concluded that "no documentary evidence supports an objective bona fide intent to use the mark in commerce as of the application filing date.
Applicant's evidence of bona fide intent: Applicant's argued that Mr. Gabriel 82 years old does business "the old fashioned way:" over the phone or in person, without texts of emails. Not good enough, said the Board. This record at most supports a finding that Applicants had two meetings within seven months after the application was filed in which inquiries concerning distillation of a MEZQUILA product were raised and immediately dropped.
Considering all the record evidence, we find that these meetings do not explain or outweigh Applicant' failure to provide persuasive documentary evidence of an objective intent to use the mark MEZQUILA in commerce as of the application filing date in January The distiller testified that he entered into the agreement as a favor to Gabriel because the latter wanted "to be sure that the trademark belongs to him.
The Board declined to reach opposer's claims of genericness, mere descriptiveness, geographically deceptive misdescriptiveness, and deceptive misdescriptiveness. Do you think the Board was convinced by these arguments? Applicant did not appear to challenge this issue.
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