Canea Partner Group ABv.David A. Prempeh

Trademark Trial and Appeal Board

Mar 17, 2020

92063765 (T.T.A.B. Mar. 17, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 17, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Canea Partner Group AB
v.
David A. Prempeh

Cancellation No. 92063765
_____

M. Scott Alprin of Alprin Law Offices PC,
for Canea Partner Group AB

Rick Ruz of Rick Ruz PLLC,
for David A. Prempeh
_____

Before Mermelstein, Lynch, and English,
Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:

Respondent, David A. Prempeh, is the owner of Registration No. 4946556 for the
mark KANEA, in standard characters, registered on the Principal Register for
“Tablet computer” in International Class 9.1

1 Registered April 26, 2016.
Cancellation No. 92063765

2

I. The Pleadings
In its second amended petition for cancellation, Petitioner, Canea Partner Group
AB, alleges that it owns trademark application Serial No. 79172308 for the mark
CANEA for the following goods and services:
International Class 9: Computer software for project management,
document management, workflow management and performance
management” and “Computer consultancy in the field of computer
software for project management, document management, workflow
management and performance management; development and design of
computer software in the field of project management, document
management, workflow management and performance management;
computer software integration services

International Class 35: Business management consultancy services;
consultancy in the field of business efficiency; consultancy in the field of
business project management, business strategy, increasing business;

International Class 41: Educational services, namely, providing classes,
seminars and workshops in the field of business management and
business development; educational services, namely, providing classes,
seminars and workshops in the field of information technology; and

International Class 42: Computer consultancy in the field of computer
software for project management, document management, workflow
management and performance management; development and design of
computer software in the field of project management, document
management, workflow management and performance management;
computer software integration services.

Petitioner further alleges that its application has been refused registration based on
a likelihood of confusion with Respondent’s KANEA mark for “tablet computer” and
that Petitioner has “expended considerable sums and effort with regard to
Petitioner’s mark, and maintaining registration of Respondent’s mark would result
Cancellation No. 92063765

3

in irreparable harm to Petitioner’s business and reputation.”2 As grounds for
cancellation, Petitioner alleges that Respondent was not using his mark for the goods
in the registration when he filed a statement of use on January 27, 2016 or when his
insurance extension of time to file a statement of use expired on July 21, 2016 (the
“July 21, 2016 SOU Deadline”).3
In his answer, Respondent denies the salient allegations in the second amended
petition for cancellation.4
Both parties filed main briefs and Petitioner filed a reply brief.5

2 Second Amended Petition for Cancellation, 27 TTABVUE 16-18, ¶¶ 2-4 and 11.
3 Petitioner also pleaded a superfluous claim of fraud based on nonuse. Petitioner has not
pursued this claim so we deem it waived and have given it no consideration.
A notice of allowance issued in connection with Respondent’s underlying application on
January 21, 2014. After Respondent obtained a first request for extension of time to file a
statement of use, the application was abandoned three times. Each time, Respondent filed a
combined petition to revive and extension of time to file a statements of use. The third time,
Respondent concurrently filed a statement of use. The Office granted the petitions to revive,
approved the extension requests, and accepted the statement of use. Petitioner “questions”
whether the third petition to revive should have been granted based on Petitioner’s belief
that “it seems unlikely” the unintentional delay standard was satisfied. Based on this,
Petitioner argues that “the date by which Respondent should have used his mark in
commerce is January 27, 2016, the date of the filing of the Statement of Use, not July 21,
2016, the date on which the [insurance] period to file a Statement of Use ended.” Petitioner’s
Brief, 32 TTABVUE 16 n.2. We give no consideration to this speculative argument because
it concerns an ex parte examination issue. Cf., e.g., Gen. Mills Inc. v. Health Valley Foods, 24
USPQ2d 1270, 1273 n. 6 (TTAB 1992); Marshall Field & Co. v. Mrs. Fields Cookies, 11
USPQ2d 1355, 1358 (TTAB 1989).
4 Respondent’s Answer to the Second Amended Petition for Cancellation, 29 TTABVUE.
Respondent also pleaded two “affirmative defenses” of failure to state a claim and that
“Petitioner fails to provide any facts whatsoever to support its claims of abandonment, fraud,
and nonuse.” Id. at 3, ¶¶ 13-14. We construe the second “affirmative defense” as an
amplification of Respondent’s assertion of failure to state claim. Because Respondent did not
argue failure to state a claim by motion or at trial, these “affirmative defenses” are deemed
waived.
5 On October 20, 2019, Petitioner filed a corrected Reply Brief “identical to the original, except
for [a spelling] correction in the first sentence on page 1.” 35 TTABVUE 2. We have considered
only the corrected Reply Brief.
Cancellation No. 92063765

4

II. Evidentiary 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 involved registration. Each party also
submitted one notice of reliance.
A. Petitioner’s Notice of Reliance
Petitioner introduced under notice of reliance:
• Petitioner’s first set of interrogatories and Respondent’s responses
thereto;6

• Emails of January 10, 2018 and January 21, 2018 and a February 9,
2018 letter between the parties regarding discovery issues;7

• Respondent’s first set of requests for admission;8

• Petitioner’s first, second and third sets of document requests and
Respondent’s responses thereto;9

• Invoices, shipper’s declarations, PayPal receipts, and printouts from
excel spreadsheets that Respondent produced in response to Petitioner’s
interrogatories;10 and

• Respondent’s 2015 and 2016 tax returns.11

6 Petitioner’s Notice of Reliance, 25 TTABVUE 9-25.
7 Id. at 26-40 and 100.
8 Id. at 41-53.
9 Id. at 54-61 and 76-90.
10 Id. at 62-75, 91-99 and 101-103.
11 Petitioner’s Confidential Notice of Reliance 26 TTABVUE (filed under seal).
Cancellation No. 92063765

5

B. Respondent’s Notice of Reliance12

Respondent introduced under notice of reliance:

• Respondent’s first sets of document requests and interrogatories and
Petitioner’s responses thereto;13

• Advertising and marketing material that Petitioner produced in
response to Respondent’s document requests;14

• A presentation, service agreement, and invoices that Petitioner
produced during discovery;15

• Petitioner’s responses to Respondent’s first set of requests for
admission;16

• Web page screen shots from kaneatablets.com, PayPal, YouTube.com,
Facebook and Instagram that Respondent produced during discovery;17
and

• Marketing material for KANEA tablet computers, payment receipts, a
photograph of a package bearing a DHL shipping label, a Whois record
for kaneatablets.com, and an email to Respondent from GoDaddy
regarding the kaneatablets.com domain name.18

12 Respondent unnecessarily increased the size of the record, submitting copies of numerous
documents that Petitioner already submitted under notice of reliance. Evidence which is
properly submitted may be relied on by another party for any proper purpose. Trademark
Rule 2.122(a), 37 C.F.R. § 2.122(a); see also Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6
(TTAB 2016).
13 Respondent’s Notice of Reliance, 30 TTABVUE 13-69.
14 Id. at 70-85.
15 Petitioner’s Confidential Notice of Reliance, 31 TTABVUE 86-147 (under seal).
16 Petitioner’s Notice of Reliance, 30 TTABVUE at 100-107.
17 Id. at 163-178 and 206.
18 Id. at 183-186, 202 and 207-210.
Cancellation No. 92063765

6

C. Evidentiary Issues

Many of the documents the parties submitted are not usually appropriate for
submission under notice of reliance, but we do not exclude any evidence on this basis.
On May 30, 2018, the Board entered discovery sanctions against Petitioner (the
“Sanctions Order”) including permitting Respondent to submit under notice of
reliance documents Petitioner produced during discovery and deeming Petitioner to
have stipulated to the authenticity of such documents. Accordingly, Respondent
properly submitted under notice of reliance documents that Petitioner produced in
response to document requests. As to the other improperly introduced materials, both
parties ignored the applicable rules and neither party raised an objection to the
manner of submission. Accordingly, we deem the parties to have stipulated to
introducing such documents by notice of reliance.
Petitioner, in its reply brief, objects to Respondent relying on evidence regarding
“the purported ‘transport’ of his goods from a Chinese manufacturer to himself in
2013 and 2015 for establishing use in commerce” because “[p]rior to the submission
of his Main Brief, Respondent never indicated that he would rely on ‘transport’ of his
goods for establishing ‘use in commerce.’”19 In support of this position, Petitioner
points out that during discovery, Respondent refused to answer whether he intended
to rely on the transport of goods to establish use in commerce, asserting that the
question was “plainly aimed at discerning a legal conclusion and is not

19 Petitioner’s Corrected Reply Brief, 35 TTABVUE 12-17.
Cancellation No. 92063765

7

discoverable.”20 Petitioner further asserts that Respondent’s interrogatory response
that “‘it is possible that Respondent has a date of first use in commerce that is earlier
than January 18, 2016,’” the day Respondent’s website went live, “is not well taken.”21
Petitioner’s objection is overruled. If Petitioner was dissatisfied with Respondent’s
discovery responses, its recourse was to file a timely motion to compel. Petitioner
cannot now complain that Respondent’s discovery responses were deficient. In any
event, Respondent produced during discovery all of the evidence on which he seeks to
rely to support his position that a Chinese manufacturer shipped KANEA tablet
computers to him before the July 21, 2016 SOU Deadline, so the evidence is not a
surprise to Petitioner. Petitioner also should have reasonably anticipated that
Respondent would rely on such shipments given that he submitted this evidence
during trial. It was incumbent on Petitioner to raise any objections to this evidence
in its main brief so Respondent had an opportunity to respond.
III. Analysis
A. Standing
Respondent did not address Petitioner’s standing in his brief, but standing is a
threshold issue that the plaintiff must prove in every inter partes case. Empresa
Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1061-62
(Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 187-89 (CCPA 1982); Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d

20 Id. at 16.
21 Id. at 15.
Cancellation No. 92063765

8

1340, 1344 (TTAB 2017). “The purpose of the standing requirement is ‘to prevent
litigation where there is no real controversy between the parties,” where a petitioner
“is no more than a mere intermeddler.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012) (quoting Lipton Indus., Inc.
v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982)). To meet the
standing requirement, a plaintiff need only show that it has a “real interest” in the
proceeding, i.e., a direct and personal stake in the outcome of the proceeding, and a
“reasonable basis” for its belief in damage. Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023, 1025-26 (Fed. Cir. 1999); see also Coach Servs., v. Triumph Learning,
101 USPQ2d at 1727.
Petitioner’s pleaded application and the Office action alleged to have issued in
connection therewith are not of record because Petitioner did not introduce copies of
the documents during its trial period.22 Trademark Rule 2.122(b) (only the file of the
involved registration or application is automatically of record in an inter partes
proceeding). Petitioner also did not introduce testimony regarding its pleaded
application. WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126
USPQ2d 1034, 1040 (TTAB 2018) (plaintiff’s pleaded pending application is not
automatically of record, and must be introduced as evidence at trial by filing under
notice of reliance a copy thereof showing current status and title, or through witness

22 Petitioner attached to its original petition to cancel a TSDR printout for application Serial
No. 79172308, but with an exception for pleaded registrations not applicable here, “an exhibit
attached to a pleading is not evidence on behalf of the party to whose pleading the exhibit is
attached, and must be introduced in evidence as an exhibit during the period for the taking
of testimony.” Trademark Rule 2.122(c).
Cancellation No. 92063765

9

testimony about its status). Nor does the Board take judicial notice of applications
and registrations in Office records. See In re Jonathan Drew Inc., 97 USPQ2d 1640,
1644 n.11 (TTAB 2011).
Respondent, however, submitted interrogatory responses that Petitioner made
under penalty of perjury,23 including that:
• “Petitioner’s primary product is a business management software platform,
called CANEA ONE, which helps organizations plan, execute, monitor and
adapt in an ever changing business landscape.24

• Petitioner “selected the term CANEA as a trademark for each item of
goods/services specified in Application No. 79/172,308” because “CANEA is
[Petitioner’s] company name, and it was natural that the company name would
be applied to the IT solutions product[.]”25

• “Petitioner uses a company called Lexem Strategy for its channels of
distribution in the United States with respect to its business management
software platform.”26

• “Goods/services sold under Petitioner’s mark27 are advertised” at “trade
shows.”28

23 Respondent’s Notice of Reliance, 30 TTABVUE 68 (verification).
24 Id. at 48 and 57-58 (Respondent’s Interrogatory 2 and Petitioner’s response). Petitioner
pleaded rights in the mark CANEA, not the mark CANEA ONE. Respondent, however,
introduced this interrogatory response and has not objected to Petitioner’s reliance on it (see
Petitioner’s Brief, 32 TTABVUE 17) to establish Petitioner’s standing. Accordingly, we treat
the pleadings as amended pursuant to Fed. R. Civ. P. 15(b) to include the mark CANEA ONE
as a pleaded mark. See, e.g., Pneutek, Inc. v. Scherr, 211 USPQ 824, 826 (TTAB 1981); Omega
SA v. Compucorp, 229 USPQ 191, 196 (TTAB 1985).
25 Respondent’s Notice of Reliance, 30 TTABVUE 49 and 59 (Respondent’s Interrogatory 6
and Petitioner’s response thereto).
26 Id. at 50 and 60 (Respondent’s Interrogatory 10 and Petitioner’s response thereto).
27 “Petitioner’s Mark” is defined as “the CANEA mark identified in [pleaded] application
Serial No. 79/172,308.” Id. at 47 (“Definitions” for Respondent’s First Set of Interrogatories).
28 Id. at 50 and 61 (Respondent’s Interrogatory 14 and Petitioner’s response).
Cancellation No. 92063765

10

In addition, Respondent introduced “marketing and advertising material” that
Petitioner produced during discovery, the authenticity of which Petitioner is deemed
to have stipulated pursuant to the Sanctions Order.29 Below is an excerpt from this
material:

This marketing material corroborates Petitioner’s verified interrogatory
responses, and together, this evidence demonstrates that Petitioner has a commercial
interest in a mark similar to Respondent’s registered mark for arguably related
goods. Trademark Rule 2.122(a) (“When evidence has been made of record by one

29 Id. at 70-85 (marketing material). Petitioner produced this marketing material in response
to document requests seeking: (1) business plans, studies and recommendations related to
producing and marketing products under Petitioner’s mark; (2) representative
advertisements and promotions featuring Petitioner’s mark; and (3) documents related to
Petitioner’s “plans for future use of” Petitioner’s mark. 30 TTABVUE 4, 19, 21, 27-28 and 30.
Cancellation No. 92063765

11

party in accordance with [the applicable] rules, it may be referred to by any party for
any purpose permitted by the Federal Rules of Evidence.”); see also Nazon v. Ghiorse,
119 USPQ2d at 1181 n.6. Accordingly, Petitioner has established that it has a direct
and personal stake in the outcome of this proceeding and a reasonable basis for
believing that it will be damaged if Respondent is allowed to maintain its registration
for the mark KANEA for a “tablet computer.” Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (“A belief in likely damage can be
shown by establishing a direct commercial interest.”); Cf. Toufigh v. Persona Parfum
Inc., 95 USPQ2d 1872, 1874 (TTAB 2010) (standing for abandonment and fraud
established where petitioner filed application for identical mark for arguably related
goods). Petitioner has established that it has standing.
B. Nonuse Claim
To prevail on its claim of nonuse, Petitioner must prove that Respondent had not
used the mark KANEA in commerce for a “tablet computer” as of the July 21, 2016
SOU Deadline. Ashland Licensing & Intellectual Property LLC v. Sunpoint Int’l Grp.
USA Corp., 119 USPQ2d 1125, 1131 (TTAB 2016) (any legally sufficient nonuse claim
must plead that respondent failed to use its mark in commerce by the expiration of
the time for filing a statement of use); Embarcadero Techs., Inc. v. Delphix Corp., 117
USPQ2d 1518, 1524 (TTAB 2016). The Trademark Act defines “use in commerce” for
goods as:
the bona fide use of a mark in the ordinary course of trade, and not made
merely to reserve a right in a mark…. A mark shall be deemed to be in
use in commerce … on goods when— (A) it is placed in any manner on
the goods or their containers or the displays associated therewith or on
Cancellation No. 92063765

12

the tags or labels affixed thereto, or if the nature of the goods makes it
impracticable, then on documents associated with the goods or their
sale, AND (B) the goods are sold or transported in commerce[.]

Section 45 of the Trademark Act, 15 U.S.C. § 1127 (emphasis added).

Respondent asserts that he made a bona fide use in commerce of his mark before
the July 21, 2016 SOU Deadline based on: (1) shipments of tablet computers bearing
the KANEA mark from a Chinese manufacturer to Respondent in December 2013
and August 2015; and (2) Respondent’s January 18, 2016 launch of a website “open
and notorious to the public” where Respondent “actively provided the means to order”
KANEA tablet computers.30 Respondent argues that these circumstances are
different from those in Avakoff v. Southern Pac. Co., 765 F.2d 1097, 226 USPQ 435
(Fed. Cir. 1985), where the Federal Circuit affirmed the Board’s determination that
a manufacturer’s shipments of branded software programs to the applicant combined
with applicant’s advertising campaign in the form of solicitation letters to retailers
featuring the mark and subsequent sales was not sufficient to establish use in
commerce. Id. at 436. Respondent asserts that the website it launched on January
18, 2016 provided a means for ordering KANEA computer tablets, and therefore, was
not mere advertising as were the solicitation letters in Avakoff, but instead
constituted a display associated with the goods sufficient to establish use in commerce
when combined with the shipments from its Chinese manufacturer.31

30 Respondent’s Brief, 33 TTABVUE 13-15.
31 Id. at 15.
Cancellation No. 92063765

13

The evidence includes: (1) three “proforma” invoices that a Chinese entity issued
to Respondent on December 5, 2013 and May 20, 2016 (two invoices issued on this
date) for 10-inch tablet computers each with a charge for “Tablet black logo” or “Print
Logo fee”;32 (2) receipts showing that Respondent paid the December 5, 2013 proforma
invoice on December 10, 2013 and one of the May 20, 2016 invoices on May 26, 2016;33
(3) an August 5, 2015 “commercial invoice” from the same Chinese entity to
Respondent describing the goods as 2 10-inch “android computer tablet[s]”;34 (4) a
photograph of a package bearing an August 5, 2015 DHL label identifying the shipper
as the same Chinese entity that issued the invoices, the Respondent as the recipient,
and the “Content” of the package as “ANDROID TABLET COMPUTER”;35 and (5)
Respondent’s unverified interrogatory responses that the “Tablet black logo”
referenced in the December 5, 2013 invoice “was the KANEA logo” and that “these
custom tablet computers were then affixed with Respondent’s Mark (KANEA), then
shipped into the United States across state lines to the Respondent for sale in the
United States.”36 Based on this evidence, we find that Respondent purchased tablet

32 Petitioner’s Notice of Reliance, 25 TTABVUE 62-64. Respondent explained in response to
Interrogatory 23 that the December 5, 2013 “proforma invoice” is “the document by which the
Chinese manufacturer committed to sell the Respondent computers at a specified price.” Id.
at 11-21 and 21.
The invoices identify “Nana” as the purchaser. In response to Interrogatory 25, Respondent
stated that he is “Nana” explaining that “[t]his is how the Chinese manufacturer identified
Respondent in its own records.” Id. at 12 and 21.
33 Respondent’s Notice of Reliance, 30 TTABVUE 185-186.
34 Petitioner’s Notice of Reliance, 25 TTABVUE 101.
35 Respondent’s Notice of Reliance, 30 TTABVUIE 202.
36 Petitioner’s Notice of Reliance, 25 TTABVUE 13 and 22 (Petitioner’s Interrogatory 28 and
Respondent’s responses).
Cancellation No. 92063765

14

computers from a Chinese manufacturer and the Chinese manufacturer shipped
finished tablet computers bearing the KANEA mark to Respondent before the July
21, 2016 SOU deadline.
As to his website, Respondent asserts in unverified interrogatory responses that
“January 18, 2016, is the day that Respondent’s website (kaneatablets.com) went live,
and the ability to purchase the goods through the website was possible (i.e. the goods
were available for purchase).”37 The documentary evidence in the record does not
corroborate this assertion,38 but in its briefs, Petitioner acknowledges January 18,
2016 as the “Date on Which Respondent Launched its Website”39 so we treat
Petitioner as having stipulated to this fact.
As a matter of law, however, the foregoing activities do not establish use in
commerce under Section 45 of the Trademark Act. As noted, two requirements must
be satisfied for use in commerce: (1) display of a mark in a manner to associate it with
the goods; and (2) sale or transportation of the goods in commerce. Accordingly, a

37Id. at 10-11 and 19-21 (Petitioner’s Interrogatories 14, 15 and 20 and Respondent’s
responses thereto).
38 The record includes: (1) undated screen shots from the website kaneatablets.com showing
a tablet computer bearing the mark KANEA and a means for ordering the product from the
website, Respondent’s Notice of Reliance, 30 TTABVUE 164-165; (2) an undated screen shot
showing a “KANEA TABLET PC” in a PayPal shopping cart, id. at 166; (3) screen shots from
YouTube and Facebook dated after the July 21, 2016 SOU Deadline and undated screen shots
from YouTube and Instagram showing promotion of KANEA tablet computers, id. at 167-
178; (4) a Whois record for the domain name kaneatablets.com identifying the registrant as
“Registration Private,” id. at 207; and (5) a December 22, 2017 email from GoDaddy to
Respondent confirming Respondent’s registration of the domain name kaneatablets.com. Id.
at 208-210.
39 Petitioner’s Brief, 32 TTABVUE 11 and 13; Petitioner’s Corrected Reply Brief, 35
TTABVUE 11.
Cancellation No. 92063765

15

display associated with goods – such as Respondent’s website – can establish use in
commerce only where the goods also are sold or transported in commerce. 15 U.S.C.
§ 1127. The shipments from Respondent’s Chinese manufacturer to Respondent do
not constitute shipments by Respondent, and therefore, Respondent cannot rely on
these shipments to establish use in commerce. Avakoff, 226 USPQ at 436; Tao
Licensing LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1052 (TTAB 2017)
(importation of products from Vietnamese manufacturer did not establish “requisite
use or transportation in commerce”); Clorox Co. v. Salazar, 108 USPQ2d 1083, 1087
(TTAB 2013) (shipments from a manufacturer are “purely a delivery of the goods to
the trademark owner in preparation for offering the goods for sale and, therefore,
does not constitute bona fide use of applicant’s mark in commerce”).
In unverified interrogatory responses, Respondent stated that “[f]rom roughly
2013-2016 the Respondent gave away 10 of its branded goods in order to promote,
market, and improve the same” but Respondent was “unable to specify the dates on
which [the giveaways] occurred.”40 Product shipments for beta testing or promotion
may be sufficient to demonstrate use in commerce if such shipments are sufficiently
public and typical of industry practice, but that has not been established here. See,
e.g., Tao Licensing, 125 USPQ2d at 1053 (“Depending on the particular facts and
industry practice, some types of promotional activities, such as distributing samples,
may qualify as use in commerce.”); Automedx, Inc. v. Artivent Corp., 95 USPQ2d 1976,

40 Petitioner’s Notice of Reliance, 25 TTABVUE 11, 13, 20 and 22-23 (Petitioner’s
Interrogatories 16 and 32 and Respondent’s responses thereto).
Cancellation No. 92063765

16

1981 (TTAB 2010) (observing that “[u]se in commerce should be interpreted with
flexibility to account for different industry practices”); E.I. du Pont Nemours & Co. v.
G.C. Murphy Co., 199 USPQ 807, 812 (TTAB 1987) (recognizing that sales for test
marketing can establish use, but that “[t]he use of a mark necessary to create a
proprietary right therein must be an ‘open and notorious’ use reaching purchasers or
prospective purchasers of the goods in connection with which the mark is used.”).
Respondent’s interrogatory responses are not verified or corroborated by
documentary evidence, they lack specificity as to when and to whom Respondent gave
its branded goods, and there is no testimony or other evidence in the record
establishing that product giveaways for testing or promotion are typical in the tablet
computer industry. ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1043-1044
(TTAB 2012) (Board “has discretion to decide what weight to give an interrogatory
response”); Cf. Tao Licensing, 125 USPQ2d at 1053 (noting lack of any records or
other documentation corroborating testimony that respondent distributed product
samples); Daniel J. Quirk Inc. v. Village Car Co., 120 USPQ2d 1146, n.28 (TTAB
2016) (“It has been stated that unsigned and unverified answers to interrogatories do
not qualify as answers under Fed. R. Civ. P. 33…. Courts have also found that
unverified answers to interrogatories are not competent evidence or are not a valid
basis for factual findings in connection with a motion for summary judgment.”).
Indeed, Respondent does not even argue that this evidence establishes use in
commerce.
Cancellation No. 92063765

17

The only competent evidence in the record related to Respondent’s transport or
sale of KANEA tablet computers are five PayPal transaction receipts each for one
KANEA Tablet PC. These receipts, however, are dated after the July 21, 2016 SOU
Deadline41 and therefore have no probative value. Avakoff, 226 USPQ at 436 (“The
evidence of subsequent sales of programs bearing the mark is not relevant in the
absence of use in commerce prior to filing [the use-based application].”); Clorox v.
Salazar, 108 USPQ2d at 1086 (shipment of parts after the use-based application was
filed “is not a bona fide use as of the filing date of the application”).
In sum, although Respondent offered KANEA tablet computers for sale on his
website before the July 21, 2016 SOU Deadline, the record is devoid of evidence that
Respondent (as opposed his manufacturer) sold or transported KANEA tablet
computers before the July 21, 2016 SOU Deadline.
IV. Conclusion
Petitioner has proven its standing and a claim of nonuse because there is no
evidence that Respondent sold or transported KANEA tablet computers in commerce
before the July 21, 2016 SOU Deadline.
Decision: The petition for cancellation is granted. Registration No. 4946556 will
be cancelled in due course.

41 Id. at 91-95 (PayPal invoices).