Aviate, LLCv.Christy Zinser

Trademark Trial and Appeal BoardAug 27, 2020

92069014 (T.T.A.B. Aug. 27, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: August 27, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Aviate, LLC v. Christy Zinser _____ Cancellation No. 92069014 _____ Amy J. Everhart of Everhart Law Firm PLC, for Aviate, LLC. Maria V. Hardison of Tassan & Hardison, for Christy Zinser. Before Lykos, Heasley and Lebow, Administrative Trademark Judges. Opinion by Lykos, Administrative Trademark Judge: On July 23, 2018, Aviate, LLC (“Petitioner”) filed a petition to cancel Christy Zinser’s (“Respondent”) registration on the Principal Register for the mark BHM in standard characters for “Baseball caps; Hats; Shirts; T-shirts” in International Class 25.1 In the Petition to Cancel, Petitioner pleaded ownership of Registration No. 1 Registration No. 5367360, registered January 2, 2018 from an application filed May 31, 2016 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). The registration claims May 2014 as the date of first use anywhere and in commerce. Cancellation No. 92069014 - - 2 - - 5131177 for the mark BHM for “baseball hat and caps”2 as well as prior common law rights in the trademark BHM since “at least as early as May 19, 2015.”3 Respondent filed an answer denying the salient allegations of the Petition to Cancel.4 The case has now been presented to us for a decision on the merits. Petitioner submitted evidence during its assigned testimony period and filed a brief. Respondent, however, did make not any evidence of record during trial, nor did she file a brief. “The filing of a brief on the case is optional, not mandatory, for a party in the position of defendant.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 801.02(b) (2020) (citing Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1)). The same principle holds true with respect to the submission of evidence by a defendant during trial.5 See Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., 126 USPQ2d 1526, 1531 n.13 (TTAB 2018) (as defendant in cancellation, respondent not required to submit evidence or a brief, so failure to do so not treated as concession of case). Nonetheless, as plaintiff in this proceeding, Petitioner bears the burden of establishing its entitlement to a statutory cause of action and claims by a preponderance of the evidence. 2 Registered January 31, 2017, from an application filed August 31, 2015 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). The registration claims May 19, 2015 as the date of first use anywhere and in commerce. 3 Petition to Cancel, ¶¶ 1-3, 11-12; 1 TTABVUE 3 and 5. 4 4 TTABVUE. 5 By contrast, a defendant may bring a motion for failure to prosecute in instances where a plaintiff has not taken testimony or offered any other evidence. See Trademark Rule 2.132, 37 C.F.R. § 2.132. Cancellation No. 92069014 - - 3 - - I. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122, 37 C.F.R. § 2.122, the registration file for Respondent’s mark.6 Petitioner submitted the testimony declaration of its owner, Ben Lancaster, with a single exhibit.7 In addition, Petitioner submitted a notice of reliance on (1) a printout from USPTO records of Petitioner’s pleaded Registration No. 5131177, and (2) the file history of Cancellation Proceeding No. 92065831, Christy Zinser v. Aviate, LLC, against Petitioner’s Registration No. 5131177, showing that the case was dismissed with prejudice following the petitioner’s (Respondent in this proceeding) failure to file a trial brief.8 II. Pleading Issues and Trial by Implied Consent The Petition to Cancel is not a model of clarity. To the extent Petitioner attempted to assert ornamentation or nonuse claims,9 neither of those claims were argued in Petitioner’s brief, so they are deemed waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner’s pleaded descriptiveness and geographical descriptiveness claims not argued in brief deemed waived), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Swatch AG (Swatch SA) (Swatch Ltd.) v. M.Z. Berger & Co., 108 USPQ2d 1463, 1465 n.3 (TTAB 2013) 6 As such, Petitioner’s submission under notice of reliance of the registration file of Respondent’s mark was superfluous. See Petitioner’s Notice of Reliance, 10 TTABVUE 7-25. 7 11 TTABVUE. 8 10 TTABVUE. 9 Petition to Cancel ¶¶ 10-12; 1 TTABVUE 4-5. Cancellation No. 92069014 - - 4 - - (petitioner’s pleaded claims not argued in its brief deemed waived), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015). Section 2(d) of the Trademark Act permits a party to petition to cancel a registered mark on the basis of ownership of and likelihood of confusion with “a mark or trade name previously used in the United States … and not abandoned.” 15 U.S.C. § 1052(d). According to the ESTTA10 cover sheet of the Petition to Cancel, Petitioner identified “Priority and likelihood of confusion” under Section 2(d ) as a ground for cancellation.11 While the ESTTA cover sheet identifies the claim(s) alleged in a petition to cancel, it cannot set forth a sufficient factual basis to comprise a properly pleaded claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a plaintiff must allege more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”) (internal citation omitted). Thus, while it is part of the complaint, it cannot form the sole basis of a properly pleaded claim. See Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, *1, n.2 (TTAB 2019) (“Although the content of the ESTTA cover sheet is read in conjunction with an attached [pleading] as an integral component thereof, the mere mention of a ground on the ESTTA cover sheet generally is insufficient to constitute a claim .” 10 ESTTA is an abbreviation for the “Electronic System for Trademark Trials and Appeals,” the Board’s web-based filing system. See Trademark Rule 2.2, 37 C.F.R. § 2.2. 11 After a petition to cancel is uploaded in ESTTA, ESTTA allows a petitioner to identify the grounds for cancellation, as well as the registrations and/or pending applications of which it claims ownership, and on which it relies as a basis for its claims. ESTTA also permits a petitioner to identify common law rights in a mark or marks, and the goods and/or services associated therewith as a basis for its asserted claims. For further information regarding ESTTA, see TBMP § 110 (“Electronic Filing Using ESTTA”). Cancellation No. 92069014 - - 5 - - (citation omitted)); Embarcadero Technologies Inc. v. RStudio Inc., 105 USPQ2d 1825, 1827 n. 2 (TTAB 2013) (same). The relevant allegations in the Petition to Cancel regarding Petitioner’s Section 2(d) claim are as follows:12 1. Petitioner distributes and sells baseball hats and caps under the mark BHM. 2. Petitioner filed trademark application serial no. 86742053 for “baseball hats and caps” on August 31, 2015. 3. On January 31, 2017, the USPTO issued a Certificate of Registration to Petitioner for the mark BHM as registration no. 5131177 (“Petitioner’s Registered Mark”). 4. Respondent filed to register BHM as its Mark on May 31, 2016 for “Baseball caps; Hats; Shirts; T-shirts” in Class 25, which overlaps with Petitioner’s Registered Mark for BHM on “Baseball caps and hats” in Class 25. 10. Upon information and belief, Respondent has never used Respondent’s Registered Mark as a trademark as opposed to an ornamental use, and at a minimum did not do so before Petitioner first used the mark BHM in commerce in connection with the registered and applied for categories of goods. 11. In contrast to Respondent’s use of BHM as an ornamental use, Petitioner uses its Mark as a trademark, and has done so since at least as early as May 19, 2015. 12. Petitioner’s application for registration of BHM as its Mark, receipt of a Certificate of Registration of BHM as a registered mark, and its use of BHM as a trademark, predate Respondent’s application and registration of BHM as a mark. Further, despite Petitioner’s requests, Respondent has never produced evidence of her use of BHM as a trademark. 12 1 TTABVUE 3-5. Cancellation No. 92069014 - - 6 - - Paragraphs 11 and 12, read in conjunction with Paragraphs 1-3, clearly constitute an adequate pleading of priority. However, Petitioner failed to plead likelihood of confusion. In other words, while Petitioner alleged prior use of the registered and common law mark BHM in connection with baseball hats and caps, it did not allege that its mark is identical to Respondent’s registered mark or that the goods are identical or related such that a likelihood of confusion exists. And the majority of the remaining allegations in the Petition to Cancel do not pertain to the elements of a Section 2(d) claim, but instead focus on the parties’ prior litigation in Cancellation Proceeding No. 92065831 against Petitioner’s pleaded registration. This leads us to the question of whether a claim under Section 2(d) was tried by implied consent under Fed. R. Civ. P. 15(b)(2), made applicable to Board proceedings by Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a). Rule 15(b)(2) provides in part that when claims or issues not raised by the pleadings are tried by express or implied consent of the parties, an amendment of the pleadings may be made to cause them to conform to the evidence. “Implied consent to the trial of an unpleaded issue can be found only where the non-offering party (1) raised no objection to the introduction of evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue.” TBMP § 507.03(b). See also Morgan Creek Prods. Inc. v. Foria Int’l Inc., 91 USPQ2d 1134, 1138 (TTAB 2009); H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1720-1721 (TTAB 2008); Boise Cascade Corp. v. Cascade Coach Co., 168 USPQ 795, 797 (TTAB 1970) (“Generally speaking, there is an implied consent to contest an issue if there is no objection to the introduction of evidence on the unpleaded issue, as long as the adverse party was fairly informed that the evidence Cancellation No. 92069014 - - 7 - - went to the unpleaded issue.”). “The question of whether an issue was tried by consent is basically one of fairness. The non-moving party must be aware that the issue is being tried, and therefore there should be no doubt on this matter.” Morgan Creek, 91 USPQ2d at 1139; see also TBMP § 507.03(b). Based on our review of the evidentiary record and Petitioner’s brief, we find that this claim was tried by implied consent. Petitioner’s pretrial disclosures notified Respondent that Mr. Lancaster, Petitioner’s owner, was expected to testify on several topics, including “the use of Petitioner’s registered mark BHM, including when and how the mark has been used in commerce as a trademark and the proof of use of the same …”13 The declaration testimony of Petitioner’s sole witness, Mr. Lancaster, makes clear that Petitioner sought to establish prior common law rights in its pleaded BHM mark in connection with baseball hats and caps, goods that are identical in part to the goods identified in Respondent’s registration. Petitioner’s brief discusses Trademark Act Section 2(d) and the critical elements of such a claim, noting that Petitioner’s and Respondent’s registered marks are identical and cover overlapping goods.14 We therefore find that Respondent was “adequately apprised” that Petitioner’s evidentiary materials would be used to support a Section 2(d) claim. Petitioner’s arguments set forth in its brief put Respondent on notice as well. Compare Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 13 Petitioner’s Pretrial Disclosures; 9 TTABVUE 2. Although there is no requirement that a party file pretrial disclosures with the Board, when a party voluntarily does so, it becomes part of the evidentiary record. See Trademark Rule 2.121(e), 37 C.F.R. § 2.121(e); see also Fed. R. Civ. P. 26(a)(3). 14 Petitioner’s Brief, p. 7; 12 TTABVUE 11. Cancellation No. 92069014 - - 8 - - 98 USPQ2d 1921, 1925-26 (TTAB 2011) (Board found petitioner’s likelihood of confusion claim based on petitioner’s common law use of the mark LA MICHOACANA and the mark comprising an Indian girl design was tried by implied consent where petitioner’s notices of reliance and testimony fairly apprised respondent that it was relying on these marks to show priority) with Levi Strauss & Co. v. R. Josephs Sportswear, Inc., 28 USPQ2d 1464, 1471 n.11 (TTAB 1993), recon. denied, 36 USPQ2d 1328 (TTAB 1994) (party was not fairly apprised that evidence used for a pleaded claim of descriptiveness was also being offered in support of unpleaded likelihood of confusion claim). We further observe that Respondent raised no objection following Petitioner’s brief. While, as noted above, a defendant in an inter partes proceeding is not required to file a brief, in choosing not to do so, Respondent implicitly consented to trial of this issue by waiving the opportunity to assert an objection. Cf. Nextel Commc’ns, Inc. v. Motorola, Inc., 91 USPQ2d 1393, 1399 (TTAB 2009) (although opposer did not plead issue preclusion as a ground for opposition, because applicant did not object to opposer’s assertion of that ground in its brief and, in fact, addressed the issue in its brief, the Board deemed the pleadings to be amended pursuant to Fed. R. Civ. P. 15(b)). We hasten to add that Respondent missed every opportunity it could during the interlocutory phase of this case to challenge the sufficiency of Petitioner’s complaint. For example, if Respondent believed that the Petition to Cancel was devoid of any properly pleaded claim, in lieu of or concurrent with the filing of its answer, Respondent could have filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Alternatively, had Respondent believed that the Petition to Cancel Cancellation No. 92069014 - - 9 - - was so “so vague or ambiguous” that it could not have “reasonably” answered the complaint, it could have move for a more definite statement under Fed. R. Civ. P. 12(e). We acknowledge that Respondent’s inaction during the interlocutory phase is not part of the Rule 15(b)(2) analysis; nonetheless, it shows that Respondent “sat on her hands” and did nothing to seek clarification. In view of the foregoing, we can conclude that a Section 2(d) claim was tried by implied consent under Fed. R. Civ. P. 15(b)(2). In accordance therewith, the pleadings are amended. III. Entitlement to a Statutory Cause of Action As a threshold issue, Petitioner must prove entitlement to a statutory cause of action.15 Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015). According to Section 14 of the Trademark Act, 15 U.S.C. § 1064: A petition to cancel a registration of a mark, stating the grounds relied upon, may, upon payment of the prescribed fee, be filed as follows by any person who believes that he is or will be damaged, … by the registration of a mark on the principal register established by this chapter, or under the Act of March 3, 1881, or the Act of February 20, 1905. To establish entitlement to a statutory cause of action under Section 14 of the Trademark Act, Petitioner must demonstrate a real interest in the proceeding and a 15 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.” Mindful of 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 nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain equally applicable. Cancellation No. 92069014 - - 10 - - reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020); see also Empresa, 111 USPQ2d 1162; Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999). A “real interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 50 USPQ2d at 1026. Petitioner did not squarely address this issue in its brief. The record includes a printout of Petitioner’s pleaded Registration No. 5131177 submitted under notice of reliance without evidence from the USPTO showing current status and title.16 See Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1). For this reason, Petitioner cannot rely on its pleaded registration to prove that its statutory entitlement to bring the present cause of action under Section 14. We can discern, however, that Petitioner is in fact entitled to a cause of action under Section 14 from the testimony of its owner, Mr. Lancaster, regarding Petitioner’s common law use of the BHM mark in connection with baseball hat and caps.17 See Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (common-law use).18 Thus, Petitioner has demonstrated that it possesses a real interest in this proceeding beyond that of a mere intermeddler, and a reasonable basis for its belief of damage. See Ritchie v. 16 See Notice of Reliance, Exhibit A; 10 TTABVUE. 17 Lancaster Decl. ¶¶ 2-3, Exhibit A; 11 TTABVUE 3-4. 18 The record includes a photocopy of Petitioner’s pleaded Registration No. 5131177 under notice of reliance without evidence from the USPTO showing current status and title. See Notice of Reliance, Exhibit A; 10 TTABVUE. See Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1). For this reason, Petitioner cannot rely on its pleaded registration to prove that it is entitled to a statutory cause of action under Section 14. Cancellation No. 92069014 - - 11 - - Simpson, 50 USPQ2d at 1026; see also Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). We find, therefore, that Petitioner has proven its entitlement to bring the instant cancellation proceeding. IV. Section 2(d) Claim We turn now to the substantive claim before us. To prevail on a likelihood of confusion claim brought under Trademark Act Section 2(d), a party must first prove that it owns “a mark registered in the Patent and Trademark Office , or a mark or trade name previously used in the United States … and not abandoned ….” Trademark Act Section 2(d), 15 U.S.C. § 1052(d). Trademark Act Section 2(d), 15 U.S.C. § 1052(d); see also Cunningham v. Laser Golf Corp., 55 USPQ2d at 1848; Otto Roth & Co., Inc. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981); Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1959 (TTAB 2008). A. Priority Our first task is to determine Respondent’s relevant date of first use of its mark in commerce in connection with the relevant goods since Petitioner, in order to prevail on its Section 2(d) claim will have to demonstrate priority before that date. Under Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c), a party may rely upon the filing date of the application underlying its registration for purposes of priority as its constructive use date. See Cent. Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1140 (TTAB 2013); Larami Corp. v. Talk to Me Programs, Inc., 36 USPQ2d 1840, 1844 (TTAB 1995) (parties may rely on the constructive use i.e. filing dates for Cancellation No. 92069014 - - 12 - - purposes of priority). A party may, of course, rely on an earlier priority date based on common law rights; however, any such earlier priority date must be established by competent evidence. In this particular case, given the absence of any evidence of earlier use, we will rely on Respondent’s constructive use date, i.e. the filing date of respondent's underlying application: May 31, 2016. As noted above, although Petitioner pleaded ownership of a federal registration, it did not properly make the registration of record, so it is precluded from relying on the filing date of the underlying application as a constructive use date to prove priority. Instead, Petitioner must demonstrate common law rights in its pleaded BHM mark prior to May 31, 2016. See Giersch v. Scripps, 90 USPQ2d at 1023. See also Otto Roth, 209 USPQ at 43. According to the declaration testimony of Mr. Lancaster, Petitioner began using “the mark BHM19 in commerce in connection with baseball hats and caps at least as early as May 19, 2015.”20 We find that Petitioner, through its unchallenged testimony, has established proprietary rights in the term BHM in connection with baseball hats and caps prior to Respondent’s constructive date of first use. Cf. Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965) (oral testimony alone of a 19 There is no such thing as a common law standard character mark. “Standard character” is an Office term which categorizes the form of the drawing of a mark in federal applications or registrations. See Trademark Rule 2.52, 37 C.F.R. § 2.52; see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 807 (Oct. 2018). By contrast, marks based on common law rights are defined by their actual use. Thus, to determine Petitioner’s common law mark, we rely on Mr. Lancaster’s testimony declaration. 20 Lancaster Decl. ¶ 2; 11 TTABVUE 2. Respondent opted against exercising her right to take oral cross-examination of Mr. Lancaster. See Trademark Rule 2.123(a), 37 C.F.R. § 2.123(a). Cancellation No. 92069014 - - 13 - - single, credible witness is enough to establish common law use of a mark for the identified goods or services). As such, Petitioner has demonstrated priority. B. Likelihood of Confusion Having established priority, we are left with the issue of likelihood of confusion. We base our determination under Section 2(d) on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, however, two key considerations are the similar ities between the marks and the similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). These factors and others are discussed below. 1. The Marks We first consider “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 F. App’x (Fed. Cir. 2019). (citation omitted). Accord Krim-Ko Corp. v. Coca-Cola Bottling Cancellation No. 92069014 - - 14 - - Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). We compare Petitioner’s common law word mark BHM, the mark for which priority has been shown, and Respondent’s applied-for mark standard character mark BHM. To state the obvious, the marks are identical. This first DuPont factor therefore weighs in favor of finding a likelihood of confusion. 2. The Goods We turn now to the second DuPont factor. Petitioner’s common law rights are limited to the actual goods on which it uses its mark; by contrast, Respondent’s goods encompass all goods as they are recited in the registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); see also Octocom Sys. Inc. v. Houston Computer Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). As noted above, Petitioner has proven prior common law use of the mark BHM in connection with “baseball hats and caps.” The identification of goods in Respondent’s registration includes “Baseball caps.” Accordingly, we find that the goods are identical in part. This second DuPont factor also weighs in favor of finding a likelihood of confusion. 3. The Similarity or Dissimilarity of Established, Likely to Continue Trade Channels Lastly, we consider the third DuPont factor. We first look to how the trade channels are delineated, if at all, in the involved registration. See Stone Lion, 110 USPQ2d at 1161; see also Octocom, 16 USPQ2d at 1787. There are no limitations as Cancellation No. 92069014 - - 15 - - to channels of trade or classes of purchasers in the identification of goods in Respondent’s registration. It therefore is presumed that Respondent’s identified goods move in all channels of trade normal for those goods, and that they are available to all usual classes of purchasers for those goods. See Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987); Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340, 343 (TTAB 1983). Petitioner’s federal registration was not properly made of record; as such, we cannot make any presumptions regarding the established, likely to continue trade channels, normal or usual channels of trade and classes of consumers. We must instead look to the record evidence, if any. Because the record is silent on this issue, we cannot make any factual findings regarding the established, likely to continue trade channels for Petitioner’s goods. Thus, this third DuPont factor is neutral. B. Balancing the DuPont Likelihood of Confusion Factors We have carefully considered all evidence of record and arguments as they pertain to the DuPont factors. The first and second factors weigh in favor of finding a likelihood of confusion, while the third factor is neutral. Accordingly, we find that Petitioner has proved its entitlement to a cause of action under Section 14, priority, and likelihood of confusion by a preponderance of the evidence. Decision: The Petition to Cancel is granted.