Eazy-PZ LLCv.Ez Etail, Inc.

Trademark Trial and Appeal Board

Mar 17, 2022

92064031 (T.T.A.B. Mar. 17, 2022)

Oral Hearing: January 5, 2022 Decision Mailed: March 17, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Eazy-PZ LLC v. Ez Etail, Inc. _____ Cancellation No. 92064031 _____ Zachary C. Garthe of Copernicus Law for Eazy-PZ LLC. Anderson J. Duff of Duff Law PLLC for Ez Etail, Inc. _____ Before Kuhlke, Wellington, and Lebow, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Ez Etail, Inc. (Respondent) owns Registration No. 4965696 for the standard character mark EZPZ for “online retail store services featuring a wide variety of consumer goods of others” in International Class 35.1 1 Registration No. 4965696, issued May 24, 2016, alleging February 4, 2016 as the date of first use and first use in commerce. The underlying application was filed on January 23, 2015. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Cancellation No. 92064031 - 2 - Eazy-PZ LLC (Petitioner) filed a Petition For Cancellation of the registration.2 As grounds for cancellation in the Petition for Cancellation, Petitioner asserts likelihood of confusion with its previously-used common law mark EZPZ.3 Petitioner also pleads ownership of application Serial No. 86846378 for the standard character mark EZ PZ for “on-line retail gift shops; on-line retail store services featuring downloadable electronic books; on-line wholesale and retail store services featuring products for infants, babies, and small children” in International Class 35.4 Petitioner alleges that it has been using its applied-for mark since “at least as early as September 6, 2014.”5 Respondent, in its answer, denies the salient allegations in the petition for cancellation. The parties have fully briefed this cancellation proceeding.6 An oral hearing was held on January 5, 2022, with both parties represented by counsel. I. The 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. The parties introduced the testimony and evidence listed below: 2 1 TTABVUE. 3 Id. at 4 (Pet. for Cancellation ¶ 1). 4 Id. at 5, ¶ 3. 5 Id. 6 78 TTABVUE (Petitioner’s main brief), 79 TTABVUE (Respondent’s brief), and 80 TTABVUE (Petitioner’s reply brief). Cancellation No. 92064031 - 3 - A. Petitioner’s Testimony and Evidence 1. Testimony declaration, with exhibits, of Lindsay Laurain, founder and CEO of Petitioner;7 and 2. Notice of reliance on printouts from the Office’s electronic database for Petitioner’s pleaded application Ser. No. 86846378 and official records from the Colorado Secretary of State showing Petitioner’s “Statement of Trade Name” and “Certificate of Fact of Trade Name.”8 B. Respondent’s Testimony and Evidence9 1. Testimony declaration of Arthur Chipman, strategist and marketing consultant;10 2. Testimony declaration of Reza Baikoghli, a Canadian real estate developer and investor;11 3. Testimony declaration of Sonja Foley, intern for Mr. P. Baikoghli from January 2013 to July 2014;12 and 4. Testimony declaration, with exhibits, of Parham Baikoghli, business development manager for Respondent.13 II. Respondent’s Objection to Petitioner’s Evidence Respondent objects to the introduction of the exhibits attached to the testimonial declaration of Lindsey Laurain.14 Specifically, Respondent argues that Petitioner 7 65 TTABVUE. 8 64 TTABVUE. 9 Respondent also filed testimony declarations of Bahaar Vafai and Amir Loloi (72-73 TTABVUE); however, these declarations were stricken pursuant to a motion to strike filed by Petitioner and granted as conceded by the Board. 77 TTABVUE. 10 68 TTAVUE. 11 69 TTAVUE. 12 70 TTAVUE. 13 70 TTAVUE. 14 79 TTABVUE 8-12. Cancellation No. 92064031 - 4 - “provided no reason” for its failure to produce these materials in response to Respondent’s discovery requests until February 26, 2019, “nearly one year after the close of discovery and five days after [Respondent] filed its motion for summary judgment,” and this failure was “neither substantially justified or harmless” to Respondent.15 Petitioner argues that it should not be estopped from introducing and relying upon the objected-to materials because they were provided to Respondent long before the trial periods commenced.16 Petitioner also points out that subsequent to the close of discovery and “[f]or various reasons, the proceedings in this matter were suspended for almost all of 2018.”17 In addition, Petitioner argues that at the time of its supplementation to its discovery responses, it had retained new counsel who advised Petitioner that it would need to rely on these materials in support of its summary judgment motion to rebut Respondent’s “new argument that [Petitioner] cannot establish any priority before January 23, 2015 [Respondent’s constructive filing date for the involved registration].”18 Under the estoppel sanction, a party that fails to provide information may, upon motion or objection by its adversary, be precluded from using that information or witness at trial, “unless the failure was substantially justified or is harmless.” Fed. 15 Id. at 12. 16 Respondent acknowledges first receiving the objected-to materials on February 26, 2019 (79 TTABVUE 12), and Petitioner’s trial period, as rescheduled (62 TTABVUE), did not open until September 24, 2019. 17 61 TTABVUE 5. 18 61 TTABVUE 4 (Petitioner’s reply brief in support of its summary judgment motion). Cancellation No. 92064031 - 5 - R. Civ. P. 37(c)(1). See e.g., Panda Travel, Inc. v. Resort Option Enters., Inc., 94 USPQ2d 1789, 1792-93 (TTAB 2009) (documents not produced until after the start of trial stricken). See also TBMP § 527.01 (June 2021). See also Great Seats Inc. v. Great Seats Ltd., 100 USPQ2d 1323, 1327 (TTAB 2011) (setting forth five factors for consideration when deciding if testimony should be stricken because identity of witness not disclosed prior to trial).19 Here, we find that Petitioner’s supplementation of its discovery responses to include the objected-to materials was harmless given that these materials were produced nearly seven months before the commencement of trial. Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341, 1346 (TTAB 2013) (applying “Great Seats factors,” opposer’s failure to supplement its discovery responses or initial disclosures with respect to third-party use found harmless). Put simply, this was not a situation of “trial by ambush,” nor did it cause, as Respondent claims, “undue surprise.”20 Rather, Respondent was put on notice well before trial that Petitioner would likely be relying on the objected-to materials and had ample time to prepare. Accordingly, Respondent’s request that Petitioner be estopped from relying on the objected-to materials is denied. 19 The five Great Seats factors are: 1) the surprise to the party against whom the evidence would be offered; 2) the ability of that party to cure the surprise; 3) the extent to which allowing the testimony would disrupt the trial; 4) importance of the evidence; and 5) the non- disclosing party’s explanation for its failure to disclose the evidence. Id. 20 79 TTABVUE 12. Cancellation No. 92064031 - 6 - III. The Parties’ Stipulation: Entitlement to a Statutory Cause of Action and Likelihood of Confusion The parties filed a stipulation to “narrow triable issue.”21 Specifically, Petitioner and Respondent agreed to the following:22 1. For the purpose of this proceeding only, [Respondent] does not dispute [Petitioner’s] standing in this cancellation action under a theory of likelihood of confusion under § 2(d) of the Lanham Act. 2. For the purpose of this proceeding only, [Respondent] does not dispute [Petitioner’s] claim that there is a likelihood of confusion between the marks shown in federal trademark application Serial No. 86/846,378 and federal trademark Registration No. 4,965,696 with respect to the services identified in each under § 2(d) of the Lanham Act. A. Entitlement to a statutory cause of action Entitlement to a statutory cause of action, formerly referred to as “standing” by the Federal Circuit and the Board, is an element of the plaintiff’s case in every inter partes proceeding. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, ___ S. Ct. ___ (2021); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief in damage proximately caused by the registration of the mark. 21 63 TTABVUE (“Stipulation to Narrow Triable Issues”). Section 705 of the TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) (June 2021) states that the Board allows and encourages parties to “craft stipulations that work for them and accelerate the timing of the Board’s final decision.” Because the parties’ stipulated agreement does just that, it is hereby approved. Cf. Conolty v. Conolty O’Connor NYC LLC, 111 USPQ2d 1302, 1304 (TTAB 2014) (Board approved agreement on cross-motions for summary judgment stipulating likelihood of confusion claim is limited issue to priority). 22 63 TTABVUE 2-3. Cancellation No. 92064031 - 7 - Corcamore, 2020 USPQ2d 11277, at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982). Based on the parties’ stipulation regarding Petitioner’s standing, as well as Ms. Laurain’s testimony regarding Petitioner’s business activity and use of the EZPZ mark, we find Petitioner has a reasonable belief of damage that is proximately caused by Respondent’s registration for the same mark. The cancellation is therefore within the zone of Petitioner’s interests, as protected by the Act. Corcamore, 2020 USPQ2d 11277, at *7-8. B. Likelihood of Confusion In view of the parties’ stipulation that “there is a likelihood of confusion between the marks shown in [Petitioner’s] federal trademark application Serial No. 86/846,378 and [Respondent’s] federal trademark Registration No. 4,965,696 with respect to the services identified in each under § 2(d) of the Lanham Act,” and our approval of that stipulation, we need not make a determination in this regard or provide an analysis of the relevant factors bearing on the likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). IV. Priority The sole issue remaining as to Petitioner’s Section 2(d) claim is priority. To establish priority on a likelihood of confusion claim brought under Section 2(d), a Cancellation No. 92064031 - 8 - party must prove that, vis-à-vis the other party, it owns “a mark or trade name previously used in the United States...and not abandoned.” Trademark Act, 15 U.S.C. § 1052(d). These proprietary rights 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. See Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002). See also Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (a party may establish prior proprietary rights in a mark through actual use, use analogous to trademark use, or an earlier constructive use date accorded to the party’s own application). Here, Petitioner must prove by a preponderance of the evidence that its common law rights were acquired before any date upon which Respondent may rely. Metro Traffic Control, Inc. v. Shadow Network Inc., 104 F.3d 336, 41 USPQ2d 1369, 1372 (Fed. Cir. 1997) (“A petitioner seeking cancellation on ... [likelihood of confusion] grounds bears the burden of proving the alleged prior use by a preponderance of the evidence.”); Standard Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d 1917, 1929 (TTAB 2006) (“In order to establish priority based on common law rights, opposer’s burden is to demonstrate by a preponderance of the evidence proprietary rights in TUNDRA and TUNDRA SPORT for clothing prior to June 1, 1998, the filing date of applicant’s intent-to-use application”). See also W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1662 (Fed. Cir. 1994). (“A presumption Cancellation No. 92064031 - 9 - of validity attaches to” Respondent’s involved Registration, and Petitioner “must rebut the presumption” by a preponderance of the evidence). A. Use Analogous - Tried by Consent For purposes of establishing priority, both Petitioner and Respondent attempt to rely on what is termed “use analogous to trademark use” or, simply, “use analogous.” Under the theory of “use analogous,” a party seeks to show that pre-sales activities, publicity, and promotions constituted use analogous to actual trademark use, and thus created an association in the relevant public’s mind with the mark on a date that precedes the party’s constructive use (filing) date or its technical first use in commerce date. T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881 (Fed. Cir. 1996); see also J. Thomas McCarthy, 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 20:16 (5th ed. March 2022 Update). In T.A.B. Sys., the Federal Circuit held that in order for use analogous to apply, the evidence must show that the asserting party’s promotional activities (1) reached “more than a negligible portion” of potential customers; and (2) were sufficient to have a “substantial impact on the purchasing public.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1375-76. Thus, in order to establish such proprietary rights, the party must allege and prove that “the activities claimed to create such an association must reasonably be expected to have a substantial impact on the purchasing public before a later user acquires proprietary rights in a mark.” Herbko, 64 USPQ2d at 1378. “[A]nalogous use must be more than mere advertising.” Westrex Corp. v. New Sensor Corp., 83 USPQ2d 1215, 1218 (TTAB 2007). Cancellation No. 92064031 - 10 - Moreover, while use analogous can create priority, “actual, technical trademark use must follow the use analogous to trademark use within a commercially reasonable period of time.” Dyneer Corp. v. Auto. Prods. Plc, 37 USPQ2d 1251, 1256 (TTAB 1995). An extensive or unreasonable amount of time between the analogous use and actual use in commerce may negate the priority effect. Westrex Corp. v. New Sensor Corp., 83 USPQ2d at 1207 (11 years of pre-sales activities before the first sale of product is not a “commercially reasonable” period of time and prior actions “were far too sporadic to rise to the level of analogous use.”). A plaintiff or defendant that seeks to rely on use analogous for establishing priority must specifically plead such reliance or the issue must be tried by implied consent. Central Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1141-42 (TTAB 2013); H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1720 (TTAB 2008) (applicant’s mere denial of opposer’s allegation of priority not sufficient to put opposer on notice that applicant will attempt to prove priority through tacking); Fair Indigo v. Style Conscience, 85 USPQ2d 1536, 1538-39 (TTAB 2007). In this case, although neither party pleaded “use analogous” to support their own claim of priority, we find this issue was tried by implied consent because neither party raised an objection to the introduction of the issue, and each was fairly apprised that the evidence was being offered in support of the issue. H.D. Lee Co. v. Maidenform, 87 USPQ2d at 1721. Indeed, as mentioned and discussed further below, both parties argued and attempted to prove an earlier priority date based on use analogous. Cancellation No. 92064031 - 11 - Petitioner argues it “acquired a proprietary interest in the EZPZ mark though use analogous to trademark use beginning on May 29, 2014, and continuing through September 28, 2014.”23 Specifically, it contends that:24 [Petitioner’s] proprietary interest in the mark EZPZ began as far back as May 29, 2014, when it registered its trade name “ez-pz” with the Colorado Secretary of State. Then, on August 28, 2014, it launched a Kickstarter campaign under its name EZPZ. [Petitioner] made significant common law usage of the mark in the fall of 2014 and up until [Respondent’s] constructive use date of January 23, 2015, during which time [Respondent] offer[ed] online retail services to thousands of customers nationwide. All of this activity is thoroughly documented in the record evidence. And [Petitioner] has used the mark continuously and without interruption ever since. Respondent, for its part, asserts that it that its “analogous rights . . . predate those claimed by Petitioner” and that “it engaged in use of EZPZ that was similar to the use upon which Petitioner attempts to rely to establish prior rights before Petitioner’s alleged uses of EZ PZ.”25 In particular, Respondent contends that, through the actions of its predecessor-in-interest, it acquired proprietary rights in the mark as early as 2012:26 Uncontested evidence in the record shows that [Respondent’s] founder started developing EZPZ as a brand at least as early as March 27, 2012 when he began attempting to secure the domain “ezpz.com.” Even before Etail was technically incorporated, its founder and predecessor in interest had developed EZPZ as a source identifier recognized by the manufacturers, wholesalers, and distributors with which Etail needed to partner to begin providing e-commerce retail store services to general consumers. 23 78 TTABVUE 18. 24 Id. at 19. 25 79 TTABVUE 18. 26 Id. at 19. Cancellation No. 92064031 - 12 - B. Respondent’s Earliest Use of Its Registered Mark Respondent, at the very least, may rely on the January 23, 2015 filing date of the underlying application for its registration, Reg. No. 4965696, as its constructive use priority date. See Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009) (party “may rely without further proof upon the filing date of its application as a ‘constructive use’ date for purposes of priority”). However, as noted above, Respondent contends that it acquired rights in the mark EZPZ as early as 2012, relying on the testimonial declaration of Mr. P. Baikoghli, with attached exhibits, as well as the declarations of Arthur Chipman, Reza Baikoghli, and Sonja Foley. As to the testimony of P. Baikoghli, while he avers that he attended a “a tradeshow in Las Vegas” in January of 2014 and “presented” himself as EZPZ, there is no information regarding the attendance of the single tradeshow.27 Likewise, although he states that Respondent “currently sells products through its e-commerce platform that are provided by manufacturers, wholesalers, and distributors who first met [him] as a representative of EZPZ [at the trade show],” there is no information regarding the number or identity of these companies or individuals, nor is there any documentary evidence to corroborate that these earlier connections resulted in subsequent sales.28 Mr. Baikoghli’s conclusory statement, “[s]ince at least as early as January 2014, the manufacturers, wholesalers, and distributors to which 27 73 TTABVUE 3 (P. Baikoghli Dec. ¶ 6). 28 Id. Cancellation No. 92064031 - 13 - [Respondent] now provides services have referred to [Respondent], even before it was incorporated, as EZPZ,”29 constitutes hearsay to the extent that he does not attest to any firsthand knowledge of incidents whereby any of these third parties referred to Respondent as EZPZ, and there is no corroborating evidence, such as communications with these companies, to help show they associated the mark EZPZ with Respondent’s business. Other paragraphs from P. Baikoghli’s declaration relating to his pre-2015 actions merely reflect efforts to build a business without showing that potential consumers of Respondent’s services were exposed to the mark EZPZ. For example, his statement that he “engaged in negotiations to attempt to purchase the domain ‘ezpz.com’” only demonstrates that Respondent expressed an interest in obtaining that domain name.30 Similarly, although Respondent eventually acquired the domain “ez-pz.com” on December 4, 2019, this fact has no real probative value without knowing when the website was live and, if it was, how much traffic it received. Other pre-2015 efforts by P. Baikoghli, including requesting “a quote” from a third-party to “develop taglines” or his use of “Cloudfare” services for the “EZPZ123.com” website, mean very little without actual evidence that such taglines were used, how they were used, and whether any of the “Cloudfare” services involved promoting Respondent’s services and the EZPZ mark to potential consumers of online retail store services. At best, this evidence demonstrates an intent to advertise. 29 Id. 30 Id. at 2-3, P. Baikoghli Dec. ¶ 4. Cancellation No. 92064031 - 14 - The remaining declarations submitted by Respondent contain ambiguous testimony and offer no support to Respondent’s contention that its pre-2015 actions amount to use analogous. Sonja Foley, in her declaration, avers that she was an intern in 2013-2014 for P. Baikoghli “for his then brand EZPZ with website ‘ezpz123.com’” and assisted with “business development, market research, and potential strategic partnerships,” including “compil[ing] a master list of brands to collaborate with, which has been used to build on and determine which brands are a strategic fit for EZPZ.”31 However, she does not testify as to any advertisements actually placed or any potential consumers actually contacted. It remains unclear whether her work was more than internal business development research. Arthur Chipman, in his declaration, avers that in 2012 Mr. P. Baikoghli “sought me out and showed interest in acquiring my expertise as a Business Strategist and Marketing Consultant for his then website which was in the business of selling home goods to US online consumers.”32 He further states:33 At all times during my interactions with Mr. Baikoghli, he presented himself as the brand name EZPZ with their then website . Mr. Baikoghli and I worked together on strategy and marketing of the brand of EZPZ from October of 2012 until October of 2014. During our many meetings, my most memorable contribution to Mr. Baikoghli was to redesign his then website with his target market: women in mind. We laid out a multi-year strategy where he would redesign his site multiple times and test the results each time in an A/B format. 31 70 TTABVUE 2-3 (Foley Dec. ¶¶ 2-5). 32 68 TTABVUE 2 (Chipman Dec. ¶ 3). 33 Id. at 2-3 (Chipman Dec. ¶¶ 4-6). Cancellation No. 92064031 - 15 - Despite Mr. Chipman’s assistance, there is again a void of information regarding the extent or reach of Respondent’s efforts or promotional activity taken on its behalf. Mr. Chipman was not a potential consumer, and there is no testimony or additional evidence showing whether potential consumers, if any, accessed the “ezpz123.com” website during any of this time. Reza Baikoghli, in his declaration, only avers that he “began investing with [P. Baikoghli] in 2010 to create an e-commerce company” and that “in 2012 [P. Baikoghli] began the process of selling goods under the brand name EZPZ with website directly to US online customers.”34 The prefatory language-“began the process of…”-is ambiguous to say the least and, again, there is no evidence showing how the website was being presented to any potential consumers at the time. After giving careful consideration to the entire record, we find that Respondent has not demonstrated use analogous for purposes of establishing a priority date that precedes its January 23, 2015, constructive use date.35 That is, the evidence of pre- 2015 activity, whether undertaken by Respondent or on Respondent’s behalf, does not show promotional efforts in connection with the EZPZ mark that reached “more 34 69 TTABVUE 2 (R. Baikoghli Dec. ¶¶ 2-3). 35 Our determination is made based on a preponderance of the evidence. The Board previously advised Respondent that because it seeks to establish that it made use earlier than the dates alleged in its registration, it must do so under the more stringent burden of proof - “clear and convincing evidence.” 62 TTABVUE 9, n. 6, citing, inter alia, Hydro-Dynamics Inc. v. George Putnam & Co., Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987). Although we find Respondent’s evidence is not sufficient for purposes of the “preponderance of the evidence” standard, we would make the same finding under the higher burden of “clear and convincing evidence” necessary for establishing dates of first use that precede the dates Respondent alleged in the underlying application for its registration. Cancellation No. 92064031 - 16 - than a negligible portion” of potential customers, or that such activity was sufficient to have had a “substantial impact on the purchasing public.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1375-76. In making our determination regarding Respondent’s failure to prove use analogous, we considered the entire record, including all declarations submitted by Respondent, and viewed in conjunction with one another. Cf. West Florida Seafood Inc. v. Jet Rests. Inc., 31 USPQ2d at 1663 (in analyzing priority, “whether a particular piece of evidence by itself establishes prior use is not necessarily dispositive as to whether a party has established prior use by a preponderance. Rather, one should 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.”). Even when viewed in its entirety there is too much ambiguity to make a finding that Respondent’s pre-2015 efforts were anything more than internal business development strategy. Moreover, as already pointed out, there is no evidence showing what type of advertising, if any, reached potential consumers before 2015. In sum, the earliest priority date upon which Respondent can rely in this proceeding is the filing date of the application that matured into its registration, January 23, 2015. C. Petitioner’s Earliest Use of Its Alleged Common Law Mark Based on our findings above, Petitioner must prove it acquired proprietary rights in its mark EZ PZ before January 23, 2015 in order to establish priority. As discussed, Petitioner argues that through use analogous, it obtained a proprietary interest in Cancellation No. 92064031 - 17 - the mark as early as May of 2014, and, in August of 2014, it first used its mark in commerce in connection with online retail services and acquired common law rights in the mark at that time. However, we need not address Petitioner’s asserted use analogous because, as explained below, the evidence shows that it began using its mark in commerce as early as December 29, 2014, thus preceding Respondent’s priority date. In her declaration, Petitioner’s principal, Ms. Lindsey Laurain, avers:36 Immediately prior to the beginning of the tradeshow, around September 1 to September 6, [Petitioner’s] website went live (at least as late as September 6, 2014). At this time, because the Kickstarter campaign was on-going, Happy Mats® were not available for shipping but were offered online under the Mark as available for pre-order. Attached to this affidavit as Exhibit C is a true and correct copy of the Wayback Machine search result for [Petitioner’s] website, and is a fair and accurate representations of how the website appeared when viewed by a member of the public on December 29, 2014.1 It is also substantially similar to how the website appeared when launched around September 6, 2014, at least as pertains to the use of the Mark and the products being available for pre-order. Exhibit C, to which Ms. Laurain testifies, displays Petitioner’s website as it appeared on December 29, 2014:37 36 65 TTABVUE 3-4 (Laurain Dec. ¶ 8). 37 Id. at 24 (Laurain Exhib. C). Cancellation No. 92064031 - 18 - With respect to orders and sales completed via Petitioner’s website, Ms. Laurain states:38 From August 28, 2014 until January 3, 2015, [Petitioner] fulfilled 2,865 orders all across the country, and all ordered under the Mark. From January 3 until January 22, 2015, [Petitioner] fulfilled orders of products on its website using the Mark every day, completing another 309 orders during that time. We sold products online to customers continuously ever since its first preorder sale on September 28, 2014, except only two days in which [Petitioner] did not receive any orders: October 1, 2014 and October 10, 2014. However, the website was live and still offering products for pre- order on those days. Attached to this affidavit as Exhibit H is a true and correct recitation of all orders placed on the [Petitioner] website and shipped between September 28, 2014 and January 22, 2015. 38 Id. at 5 (Laurain Dec. ¶ 16). Cancellation No. 92064031 - 19 - Copies of invoices, with the EZ PZ mark on the letterhead, corroborate that “pre- orders” placed in late September and October were fulfilled (shipped) as early as December 16, 2014.39 For example: The invoices also show that orders placed on or after January 3, 2015, were given “2-3 Day Shipping”:40 39 Id. at 29 (Laurain Exhib. D). 40 Id. at 105-134 (Laurain Exhib. I). Cancellation No. 92064031 - 20 - Based on the testimony from Ms. Laurain, with related exhibits, Petitioner has demonstrated by a preponderance of the evidence that it began using its EZ PZ mark in commerce at least as early as December 29, 2014 in connection with some of the services described in Petitioner’s application, namely, “online retail services featuring products for infants, babies, and small children.” V. Conclusion Because Petitioner can establish a date of first use that precedes the earliest date upon which Respondent can rely, it has established priority. Thus, in view of the parties’ stipulation that Petitioner is entitled to bring this cancellation and there is a likelihood of confusion between the parties’ marks, Petitioner has proven by preponderance of the evidence its claim under Section 2(d). Decision: The Petition for Cancellation is granted on the ground of priority and likelihood of confusion, and Registration No. 4965696 will be cancelled in due course.