Jacksonville Film Events, Inc.v.Adam Madrid

Trademark Trial and Appeal Board

Jan 7, 2022

92071893 (T.T.A.B. Jan. 7, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: January 7, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Jacksonville Film Events, Inc. v. Adam Madrid _____ Cancellation No. 92071893 _____ Marilyn S. Young of Mark Young PA for Jacksonville Film Events, Inc. Lauren E. Majure of Majure Law PLLC for Adam Madrid. _____ Before Bergsman, Goodman, and Hudis, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: Adam Madrid (“Respondent”) owns a registration for the mark shown below for “Organizing film, music, and stand up [sic] comedy festivals for cultural or entertainment purposes” in International Class 41: Cancellation No. 92071893 - 2 - 1 Jacksonville Film Events, Inc. (“Petitioner”) filed a petition to cancel the registration of Respondent’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion. In its first amended petition to cancel,2 Petitioner pleaded common law rights in the following marks: JACKSONVILLE FILM FESTIVAL and JAX FILM FEST as well as the following composite and design marks: and all for “entertainment services, planning and conducting film festival events for cultural and entertainment purposes.”3 Petitioner alleges use of JACKSONVILLE FILM FESTIVAL and the “turtle reel” design mark since 2003, use of the two JAX FILM FEST marks since 1 Registration No. 5442652 was issued on the Principal Register on April 10, 2018, with an underlying application filing date of August 7, 2017. JAX FILM FESTIVAL is disclaimed. The description of the mark provided states: “The mark consists of the stylized wording ‘LOL’ with a film reel in the place of an ‘O’, below which appears the stylized wording ‘JAX’ and ‘FILM FESTIVAL.’” 2 15 TTABVUE. 3 First Amended Petition to Cancel ¶ 1 (15 TTABVUE 2). Cancellation No. 92071893 - 3 - 2011, and that the marks have acquired distinctiveness.4 Petitioner pleads ownership of Application Serial No. 88316007 for the mark JACKSONVILLE FILM FESTIVAL, in standard character form, filed with a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), for the same services identified by its common law marks.5 Respondent filed a second amended answer denying the salient allegations in the first amended petition for cancellation and asserting the affirmative defenses of lack of proprietary rights, abandonment, laches, acquiescence, and lack of distinctiveness.6 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 the involved registration. Petitioner introduced the following testimony and exhibits7: 1) a first notice of reliance on the testimony of Brian Reese, current board member of Petitioner, and exhibits at 17 TTABVUE; 4 First Amended Petition to Cancel ¶¶ 2, 3 (15 TTABVUE 2-3). 5 First Amended Petition to Cancel ¶ 18 (15 TTABVUE 5). 6 Second Amended Answer, 16 TTABVUE. Respondent filed its first amended answer prior to the filing by Petitioner of the first amended petition to cancel. All defenses have been argued in the parties’ briefs. 7 Both Petitioner and Respondent introduced testimony as exhibits to notices of reliance but this was unnecessary and not the preferred approach. Ricardo Media Inc. v. Inventive Software, LLC , 2019 USPQ2d 311355, at *3 (TTAB 2019). We refer to this testimony by witness name and not by notice of reliance. Cancellation No. 92071893 - 4 - 2) a second notice of reliance, introducing the exhibits to the Louis C. LeBlanc III declaration, but failing to include the declaration. See discussion in the next section;8 3) a third notice of reliance on the declaration testimony of Christopher D. Yeaple, former board member of Petitioner, and exhibits at 19 TTABVUE; 4) a fourth notice of reliance on the declaration testimony of Brenda E. Kolb, former board member, past co-executive director, and sponsor of Petitioner, and exhibits at 20 TTABVUE; 5) a fifth notice of reliance on the declaration testimony of Vanessa K. Harper, former board member and patron of Petitioner, and exhibits at 21 TTABVUE; 6) a sixth notice of reliance of the declaration testimony of Niki Logoreci, Petitioner’s current President and board chair, and exhibits at 22 TTABVUE; 7) a seventh notice of reliance consisting of the May 10, 2019 Office Action issued for JACKSONVILLE FILM FESTIVAL, Serial No. 88316007 at 23 TTABVUE; 8) a notice of reliance, also identified as a seventh notice of reliance, on the rebuttal declaration of Mr. Niki Logoreci, Petitioner’s current President and board chair, and exhibits at 28 TTABVUE.9 Respondent introduced the following testimony and exhibits” 1) first notice of reliance on the declaration of Adam Madrid, co-founder of the LOL Jax Film Festival and owner of the involved registration, and exhibits at 24 TTABVUE; 8 It is the responsibility of the party making submissions to the Board via the electronic database to ensure that the testimony or evidence has, in fact, been properly made of record. See Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1350-51 (TTAB 2014); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba Watermark Cruises, 107 USPQ2d 170, 1758 n.16 (TTAB 2013) (“the onus is on the party making the submissions to ensure that, at a minimum, all materials are clearly readable by the adverse party and the Board”); Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1404 (TTAB 1998) (“It is reasonable to assume that it is opposer’s responsibility to review the documents it submits as evidence to ensure that such submissions meet certain basic requirements, such as that they are legible and identified as to source and date.”). 9 There are two notices of reliance identified by Petitioner as “seventh notice of reliance,” one submitting official records, and one submitting testimony. We refer to the testimony submitted under the “seventh notice of reliance” as the “Logoreci rebuttal declaration.” Cancellation No. 92071893 - 5 - 2) a second notice of reliance on the declaration of Mrs. Monique Madrid, co- founder of LOL Jax Film Festival, and exhibits at 25 TTABVUE; and 3) a third notice of reliance on the declaration of Mr. Jared Rush, an acquaintance of both Adam Madrid and Niki Logoreci, and exhibits at 26 TTABVUE. II. Evidentiary Issues A. Evidentiary Material from Summary Judgment Petitioner objects to Respondent’s references in his trial brief to argument and evidentiary material submitted by Respondent in response to Petitioner’s motion for summary judgment (at 12 TTABVUE). The objection is sustained. The parties have not stipulated to consideration of this evidence at trial, and this evidence was not submitted during Respondent’s trial period. Therefore, we do not consider it. Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1464 n.2 (TTAB 1993). B. Internet Exhibits Petitioner objects to exhibits 2, 4, 5, 7, and 8 submitted with the Adam Madrid declaration and exhibits 19 and 23 submitted with the Monique Madrid declaration as Internet exhibits that do not comply with the Trademark Rule 2.122(e), 37 C.F.R. § 2.122(e) because they lack a URL and date accessed. Some of these documents are not Internet documents, and the objection is inapplicable as to them. As for the remainder, to the extent the objection Petitioner is making goes to lack of authentication or foundation, those objections were not timely raised and have been waived. Moke Am. LLC v. Moke USA, LLC, 2020 USPQ2d 10400, at *5-7 (TTAB 2020) (foundation objection to declaration testimony waived when not raised during testimony period); cf. Mag Instrument, Inc. v. The Cancellation No. 92071893 - 6 - Brinkmann Corporation, 96 USPQ2d 1701, 1708 (TTAB 2010) (authentication objection to Internet exhibits could have been raised during oral deposition and was waived). The testimony of Adam and Monique Madrid is more general in nature and is not offered to prove the contents of the exhibits (e.g., identification of social media platform, identification and content of post, or social media metrics displayed by particular post). The exhibits have limited probative value because the screenshots are unclear on their face as to the identity of the particular social media platform and lack competent testimony identifying them. To the extent we can consider these exhibits, they are hearsay and admissible only for what they show on their face. See Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., 2020 USPQ2d 48324, at *2 (TTAB 2020) (Internet printouts and other materials properly introduced under a notice of reliance without supporting testimony considered only for what they show on their face rather than for the truth of the matters asserted); Milwaukee Elec. Tool Corp. v. Freud Am., Inc., 2019 USPQ2d 460354, at *4 (TTAB 2019) (same for website, Internet printouts and other materials), complaint filed, No. 20-cv-109 (M.D.N.C. Feb. 3, 2020); Ricardo Media, 2019 USPQ2d 311355, at *2 (unaccompanied by testimony, articles from the Internet may not be considered for the truth of the matters asserted but are admissible for what they show on their face). Cancellation No. 92071893 - 7 - C. Petitioner’s Second Notice of Reliance As stated, Petitioner’s second notice of reliance consists solely of exhibits without the referenced declaration testimony. Two of the exhibits submitted under notice of reliance appear to be official records and are admissible: a stamped 2016 filed annual report with the Florida Secretary of State for Jacksonville Film Events, Inc. and the results of a local tax record search from the city of Jacksonville database. Trademark Rule 2.122 (e), 37 C.F.R. § 2.122(e). The screen captures of Instagram and Twitter pages, and the Wayback machine printout of Petitioner’s website are admissible under a notice of reliance as Internet materials because the screen shots include both the URL and the date. Trademark Rule 2.122(e), 37 C.F.R. § 2.122(e). These exhibits can be considered for what they show on their face. The photo of a business card and Petitioner’s Board minutes are not admissible under notice of reliance, but other witness testimony has introduced this same (or similar) documentary evidence. D. Emails Both parties offered emails in connection with their business activities through witness testimony. Neither party objected to these submissions, and both parties have treated these materials as being properly made of record.10 We consider the parties to have stipulated to the admissibility of these emails under the exception for records of a regularly conducted activity, Fed. R. Evid. 803(6). 10 Any objections to foundation have been waived. Moke Am., 2020 USPQ2d 10400, at *5-7. Cancellation No. 92071893 - 8 - E. Text Messages Both parties provided screen shots of text messages. Neither party objected to their admissibility and treated them of record, discussing them in their briefs.11 Therefore, we consider the parties to have stipulated to the admissibility of the text messages. Text messages are hearsay, out of court statements offered for the truth of the matters asserted, unless a hearsay exception applies. Some of these messages contain multiple levels of hearsay. To the extent any of the text messages contain statements from either party opponents, they are admissible as an Opposing Party’s Statement under Fed. R. Evid. 801(d)(2). F. Board Meeting Minutes Petitioner provided Petitioner’s Board meeting minutes and the city of Jacksonville Film & Television Advisory Board meeting minutes through witness testimony. Respondent did not object to these exhibits and discussed them in his brief.12 We consider Respondent to have stipulated to their admissibility as business records which qualify for the Fed. R. Evid. 803(6) hearsay exception. The city of Jacksonville Film & Television Advisory Board meeting minutes also qualify as Public Records, an exception to the rule against hearsay under Fed. R. Evid. 803(8)(A). 11 Any objections to foundation have been waived. Moke Am., 2020 USPQ2d 10400, at *5-7. 12 Any objections to foundation have been waived. Moke Am., 2020 USPQ2d 10400, at *5-7. Cancellation No. 92071893 - 9 - G. Social Media and Website Exhibits Offered by Witness Testimony Both Petitioner’s and Respondent’s witnesses provided general testimony regarding their use of social media or websites, supported by exhibits. We have already addressed Respondent’s social media exhibits offered in connection with witness testimony and the sufficiency of this testimony in the context of Petitioner’s objection. Similar to Respondent, Petitioner’s witnesses provided no relevant testimony relating to the specific content of the social media posts or metrics displayed (such as the number of followers, likes, or other analytics), or testimony stating the number of visitors to Petitioner’s website. Lacking competent testimony, these exhibits are hearsay, and therefore, we only consider these exhibits for what they show on their face and that the public was exposed to them. See Swiss Watch Int’l Inc. v. Fed. of the Swiss Watch Indus., 101 USPQ2d 1731, 1735 (TTAB 2012) (“Although they do not prove the truth of the statements made therein, the [Internet] printouts [submitted with witness testimony] are acceptable to show that the statements were made or the information was reported in the webpages.”); cf. 7- Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1717 n.2 (TTAB 2007) (“Printed publications made of record by notice of reliance under 37 CFR 2.122(e) are admissible and probative only for what they show on their face, not for the truth of the matters contained therein, unless a competent witness has testified to the truth of such matters.”). Cancellation No. 92071893 - 10 - III. Findings of Fact A. Petitioner Petitioner, Jacksonville Film Events, Inc., is an Internal Revenue Code § 501(c)(3) nonprofit corporation organized to offer film events and other related services in Jacksonville, Florida.13 Petitioner offered annual film festivals and related services in Jacksonville, Florida under the JACKSONVILLE FILM FESTIVAL, JAX FILM FEST and “stylized JACKSONVILLE FILM FESTIVAL with turtle design trademarks,” in various forms, as shown below, between 2003 through 2012:14 15 16 17 18 19 13 Harper declaration ¶¶ 6, 9, and exhibit 22 (21 TTABVUE 6, 35-37); Kolb declaration ¶¶ 4, 6, 8 (20 TTABVUE 6); Logoreci declaration ¶ 1 (22 TTABVUE 5). 14 Harper declaration ¶¶ 3, 4, 5, 8 and exhibits 16-20 (21 TTABVUE 5-6, 9-22); Kolb declaration ¶¶ 3, 12, and exhibits 11, 14 and 15 (20 TTABVUE 5, 7, 16-24, 47-61); Logoreci declaration, exhibit 33 (22 TTABVUE 71). 15 Harper declaration, exhibit 19 (21 TTABVUE 16). 16 Harper declaration, exhibit 19 (21 TTABVUE 18). 17 Harper declaration, exhibit 22 (21 TTABVUE 32). 18 Kolb declaration, exhibit 11 (20 TTABVUE 16-24). 19 Logoreci declaration, exhibit 33 (22 TTABVUE 71). Cancellation No. 92071893 - 11 - 20 21 22 .23 In 2013, Petitioner was unable to offer film festival events for financial reasons and because the nonprofit was “in transition.”24 In 2014, the executive committee did not pursue an annual festival due to lack of funding and inability to hire an executive director.25 In the past, Petitioner operated with a board of directors, executive director, executive committee and advisory board.26 At some point in 2014, the board of directors disbanded and left the organization in the hands of Michael Boylan, “President,” and three trustees; Petitioner maintained an executive committee, and according to witnesses, there was no intention to permanently shut down the 20 Kolb declaration, exhibit 14 (20 TTABVUE 50). 21 Harper declaration, exhibit 18 (21 TTABVUE 15); Kolb declaration, exhibit 15 (20 TTABVUE 57). 22 Harper declaration, exhibit 18 (21 TTABVUE 15); Kolb declaration, exhibit 15 (20 TTABVUE 57). 23 Harper declaration, exhibit 16 (21 TTABVUE 9). 24 Kolb declaration ¶ 14 (20 TTABVUE 7); Logoreci declaration ¶ 4 (22 TTABVUE 6). Neither Ms. Kolb nor Mr. Logoreci explained the nature of the “transition.” 25 Harper declaration ¶ 15 (21 TTABVUE 7). 26 Kolb declaration, exhibit 10 (Jacksonville Film & Television Advisory Board Minutes January 21, 2010) (20 TTABVUE 11-14). Cancellation No. 92071893 - 12 - nonprofit (“the company remained active and maintained ownership of the JFF Marks with the intent to resume use once funds were available.”).27 In 2014, Niki Logoreci, a past volunteer for Petitioner who was currently working at an Apple store in Jacksonville, Florida, made initial contact with Petitioner, speaking with “President” Michael Boylan and expressing an interest in taking on a leadership role with the company and “resuming … company operations and film related events.”28 After Mr. Logoreci’s initial contact, the executive committee interviewed Mr. Logoreci over several months to “learn [his] interest and goals for JFE and determine what resources were available to continue film services and events offered by the JACKSONVILLE FILM FESTIVAL, stylized JACKSONVILLE FILM FESTIVAL, and JAX FILM FEST trademarks.”29 In preparation for taking over Petitioner’s operations, in January 2015, Mr. Logoreci registered the fictitious name JAX FILM FEST with the state of Florida.30 27 Kolb declaration ¶ 14 (20 TTABVUE 7); Logoreci declaration ¶¶ 6, 7 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 6, 32-38); Kolb declaration ¶ 9 and exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 6, 40-46); Harper declaration ¶¶ 15, 17 (21 TTABVUE 7). There is a lack of testimony and documentary evidence in the record to fully explain Petitioner’s operating status or structure, but the documentary record reflects that Mr. Boylan was identified as “President” and that Petitioner had three trustees at the time of transfer to the new board of directors in 2016. Additionally witnesses have referenced Petitioner’s executive committee in 2014 and 2015 as having contact with Mr. Logoreci. 28 Logoreci declaration ¶ 6 (22 TTABVUE 6); Harper declaration ¶16 (21 TTABVUE 7). 29 Logoreci declaration ¶ 7 and exhibit 29 (Jacksonville Film & Television Advisory Board Minutes September 7, 2016 (“Michael Boylan, CEO of WJCT and former president of the Jax. Film Festival and other Film Festival board members have vetted” Mr. Logoreci and his team)) (22 TTABVUE 6, 39-49). 30 Logoreci declaration ¶ 10 (22 TTABVUE 7). Cancellation No. 92071893 - 13 - In February 2015, Mr. Logoreci thanked Mr. Boylan for meeting with him and stated that “I wanted to let you know I am very serious about this project and I am putting 100% into it.”31 Mr. Logoreci asked Mr. Boylan on February 23, 2015 if he could “send over and share” an old business plan, financial information, and a power point presentation.32 Mr. Logoreci sent a follow up email on March 2, 2015, when Mr. Boylan did not respond to his earlier email request.33 Sometime in 2015, Mr. Boylan asked Mr. Logoreci to present a business plan and financial projections to Petitioner.34 To work on this request, Mr. Logoreci recruited his co-workers from the Apple Store in Jacksonville, Florida (some of whom later became Petitioner’s board members) to assist him in working on the business plan.35 Although Mr. Logoreci and his Apple co-workers had marketing and sales experience, they had “no past festival experience.”36 Sometime before April 20, 2015, Mr. Logoreci met with prior board members of Petitioner seeking information about past film festivals conducted by Petitioner; 31 Logoreci declaration, exhibit 23 (22 TTABVUE 17). 32 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 33 Logoreci delaration, exhibit 23 (22 TTABVUE 17-20). We have no evidence that Mr. Boylan provided this information. As Mr. Logoreci indicated, the business records of petitioner were sparse (“Business records that I received prior to my involvement were somewhat sporadic because there have been many changes in leadership of JFE over the years and there was not always a smooth transition from one group of officers to the next.”). Id. at ¶ 12 (22 TTABVUE 7). 34 Logoreci declaration ¶ 9 (22 TTABVUE 6-7). 35 Logoreci declaration ¶¶ 9, 16 (22 TTABVUE 6, 7, 8). 36 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 40-46); Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017) (22 TTABVUE 39-44). Cancellation No. 92071893 - 14 - some of these individuals supplied him with marketing information, programs, and posters from past film festivals.37 Also during this time, Mr. Logoreci met with the board of another film festival to get “research and information” to “make this project possible,” met with University of North Florida (UNF) communications professors about involving students in the film festival, and met with the UNF President about plans for the festival and a possible joint venture with them.38 Mr. Logoreci attended events in Northeast Florida to generate community support for film festival and related services under the “Jacksonville Film Festival” marks.39 On April 20, 2015, Mr. Logoreci apprised Mr. Boylan of his meetings and activities.40 As a result of this email, Mr. Boylan indicated that he would “file the annual report with the Florida Department of State … so as to keep the corporate status current.”41 On May 7, 2015, Mr. Logoreci asked Mr. Boylan for other materials from older boards and old festivals.42 Mr. Boylan provided Mr. Logoreci with some “marketing pieces” he had in his possession.43 Also in 2015, Mr. Logoreci and “his team,” (his Apple Store co-workers) developed marketing materials for Petitioner, 37 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 38 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 39 Logoreci declaration ¶ 10 (22 TTABVUE 7). 40 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 41 Logoreci declaration, exhibit 23 ((22 TTABVUE 17-20). 42 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 43 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). Cancellation No. 92071893 - 15 - including a new logo, hiring a producer to produce a short film to be part of a marketing campaign, and creating sponsor packages.44 The emails of record show communications between Mr. Logoreci and Mr. Boylan during February through May 2015 with no additional email communications until December 2015.45 On December 30, 2015, Mr. Logoreci communicated with Mr. Boylan stating “[w]e have been working on some ideas we would like to share with you, and get your feedback and talk about what the next steps are for JFF. We have completed a timeline, sponsor package, and renovating the brand of JFF.”46 Mr. Logoreci also thanked Mr. Boylan for “supporting us through every step in getting this 501c3 status back.”47 There is no witness testimony providing specific dates when the parties came to an agreement about transferring control of Petitioner to Mr. Logoreci, and witness testimony is inconsistent. However, at some point, after “vetting” and “due diligence,” the executive committee agreed to transfer responsibility for Petitioner’s operations to Mr. Logoreci.48 In February 2016, Amended Bylaws and Articles of Incorporation prepared by Mr. Logoreci’s attorney were presented to Mr. Boylan.49 Mr. Boylan expressed to Mr. Logoreci in March 2016 that the formalities for transfer, which 44 Logoreci declaration ¶¶ 10, 14, 15 and exhibit 23 (22 TTABVUE 7, 17-20); Yeaple declaration ¶¶ 4, 5 (19 TTABVUE 5). 45 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 46 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 47 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 48 Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes September 7, 2016) (22 TTABVUE 39-49). 49 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). Cancellation No. 92071893 - 16 - included convening a special board meeting to elect the new board of directors, should occur before the May 1, 2016 deadline for filing Petitioner’s annual report with the state of Florida.50 Mr. Logoreci made a formal presentation of the business plan to Mr. Boylan and two trustees on April 1, 2016, resulting in an official transfer to Mr. Logoreci of responsibility for the nonprofit (i.e., assuming control over the Internal Revenue 501(c)(3) nonprofit corporation) with a new board of directors elected.51 The newly elected board members were Mr. Logoreci, President, and (Apple colleagues) Louis C. Leblanc, III, Treasurer/Secretary, and Christopher D. Yeaple, Vice President.52 The business plan presented at the special board meeting projected a May 2017 date for the revived film festival.53 However, after the election of the new board in April 2016, Petitioner focused “its efforts on organizing a multi-day film event to be 50 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 51 Logoreci declaration ¶ 16 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016 (“Before the meeting was adjourned the lawyer passed out documents to the board of directors to sign and transfer the company over to the newly assigned board of directors.”) (22 TTABVUE 8, 32-37); Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018 (“Niki and his team took over the JFF 501-c3 several years later after Warren and I left the organization and the Board disbanded, leaving Michael Boylan in charge of the organization. Niki and his team gave a presentation to Boylan, which led to Niki’s team taking over the organization and trying to revitalize the festival.”)) (20 TTABVUE 40). Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017 (“The team assumed the Jax. Film Festival 501(c)(3)”)) (22 TTABVUE 43); Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes September 7, 2016 (“They assumed the Board of Directors and got all paperwork transferred.”)) (22 TTABVUE 49). 52 Logoreci declaration ¶ 16 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 8, 32-37). 53 Logoreci declaration, exhibits 28 and 29 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016; Jacksonville Film & Television Advisory Board Minutes May 3, 2017) (22 TTABVUE 32-37, 39-44). Cancellation No. 92071893 - 17 - held in September 2017,” identifying “potential venues to hold events, contacting resources for support, communicating with the City of Jacksonville Film and Television Office, and launch[ing] a social media campaign announcing the 2017 events planned.”54 In 2016, Petitioner used the marketing materials developed in 2015 to announce film festival events planned for 2017, and created additional website content and social media marketing materials in 2016 about the upcoming 2017 festival. These were posted on Petitioner’s social media accounts (including its Facebook account) and its website later in 2016.55 To build a consumer base and generate community interest, support and awareness, Board members attended art and film community occasions (film festivals and events promoting film), met with people in the film and broadcast industry, and conducted community outreach to local schools.56 Starting in mid-2016 and through 2017, Petitioner identified potential sponsors for financial support, and sent the previously developed sponsorship packages to 54 Logoreci declaration ¶ 17 and exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017) (22 TTABVUE 8, 39-44); Reese declaration ¶¶ 3, 5 (17 TTABVUE 5, 6). 55 Yeaple declaration ¶¶ 4, 5 and exhibits 9A and 9B (19 TTABVUE 5, 7-11); Logoreci declaration ¶ 17 and exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017 (“They plan to launch the Jax Film Festival in the next few months with a sponsorship package, and media posts on social media and elsewhere. ... The festival is TBD dates May 2017.”)) (22 TTABVUE 10, 39-44). Social media and website postings about the film festival event occurred during the months of August through November 2016. Yeaple declaration, exhibits 9A and 9B (19 TTABVUE 7-11); Logoreci declaration, exhibits 23, 24, and 26 (22 TTABVUE 15-16, 22-24, 28). 56 Reese declaration ¶¶ 8, 11 (17 TTABUVE 6); Yeaple declaration ¶ 6 (19 TTABVUE 6); Logoreci, declaration ¶ 15 (22 TTABVUE 7). Cancellation No. 92071893 - 18 - potential sponsors to raise funds.57 In May 2017, Petitioner was still working on getting sponsors and “nailing down more details.”58 The marketing materials developed for identifying sponsors and meeting with people in the film and broadcast industry for the planned 2017 film festival event displayed the JACKSONVILLE FILM FESTIVAL mark as follows: ` 59 60 57 Yeaple declaration ¶¶ 2, 6 (19 TTABVUE 5-6); Reese declaration ¶¶ 5, 6 and exhibit 1 (17 TTABVUE 6, 8). Email records show Petitioner made initial contacts for two potential sponsors in September 2016. 58 Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017) (22 TTABVUE 39-44). 59 Reese declaration, exhibits 2, 5 (17 TTABVUE 11, 12). 60 Reese declaration, exhibits 2, 5 (17 TTABVUE 12, 32). Cancellation No. 92071893 - 19 - Examples of Petitioner’s 2016 use of the Jacksonville Film Festival mark on social media and website: 61 62 61 Yeaple declaration, exhibit 9A, (19 TTABVUE 7-9). 62 Yeaple declaration, exhibit 9A (19 TTABVUE 7-9). Cancellation No. 92071893 - 20 - 63 64 63 Yeaple declaration, exhibit 9B (19 TTABVUE 10-11). 64 Logoreci declaration, exhibit 23 (22 TTABVUE 15). Cancellation No. 92071893 - 21 - 65 66 65 Logoreci declaration, exhibit 23 (22 TTABVUE 16). 66 Logoreci declaration, exhibit 24 (22 TTABVUE 23). Cancellation No. 92071893 - 22 - During 2016-2017, Petitioner communicated occasionally with individuals who were part of the city of Jacksonville Film & Television Advisory Board, keeping them apprised of Petitioner’s activities and progress to resume the film festival.67 While Petitioner obtained no sponsor commitments in 2015, 2016 or 2017, Mr. Logoreci and his Apple co-workers took advantage of an Apple Inc. volunteer hours program to amass money donations to Petitioner towards the event; the date that these funds were provided is not shown in the record.68 At some point, Petitioner made deposits to reserve space for film events at two venues: Jacksonville’s Main Public Library and the Florida Theater, but because Petitioner had not secured any sponsors and coordination took longer than anticipated, one of the deposits was ultimately forfeited when the festival did not go forward in September 2017.69 In January 2018, the city of Jacksonville Film & Television Advisory Board offered to assist Petitioner in moving forward with the film festival event in 2018 - since it 67 Kolb declaration, ¶ 8 and exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 6, 40-46); Logoreci declaration ¶ 17 and exhibit 29 (Jacksonville Film & Television Advisory Board Minutes September 7, 2016 and May 3, 2017 (22 TTABVUE 8, 39-49). The Advisory Board in the past promoted Petitioner’s events on its website and offered support. Kolb declaration ¶ 6 and exhibit 11 (20 TTABVUE 6, 16-24); Logoreci declaration, exhibit 29 (Jacksonville Film & Television Advisory Board Minutes May 3, 2017 (“We have reached out to [Petitioner to] support them in any way we can for getting exposure, etc.”)) (22 TTABVUE 39-44). 68 Logoreci declaration, exhibit 29, (Jacksonville Film & Television Advisory Board Minutes September 7, 2016) (22 TTABVUE 49); Kolb declaration, exhibit 30 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018 (by January 10, 2018 “Apple already contributed $19,000 to JFF for Niki & the other employee’s volunteer hours,” with an additional $2,000 to be received in 2018)) (22 TTABVUE 49). 69 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 40-46); Reese declaration ¶¶ 6, 7 (17 TTABVUE 6); Logoreci declaration ¶ 20 (22 TTABVUE 8). Cancellation No. 92071893 - 23 - was reported that Petitioner’s President Mr. Logoreci realized “producing the [festival] is a much larger undertaking than initially realized.”70 The film festival event ultimately took place in September 2018.71 Since the resumption of the film festival in 2018, “[t]here have been ongoing entertainment and film related services and events held under the JFF Marks” in “2019 with 2020 events moved to February 2021 in light of the pandemic.”72 Services offered under the marks since 2018 include: “organizing film competitions in numerous categories for both domestic and international films; offering festival hosted panels; holding film workshops; organizing film viewing parties; monthly library programs locally featuring film characters derived from literature; sponsoring film fan clubs featuring diverse and unique film screenings not offered in theaters; online promotion of the film industry through social media at #filminjax; showcasing women in film through special initiatives known as Women’s Perspective; and 70 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018 (the advisory committee realized “that it is necessary to have a sit-down meeting with Niki and his team, who has the Jax. Film Festival 501-c3” to discuss the “overall viability” of the city working with Petitioner to put on the film festival in view the lack of sponsorships and Petitioner’s inexperience, even discussing the viability of the city producing the film festival on its own)) (20 TTABVUE 40-46); Logoreci declaration ¶ 19 (“Because it took more time “to gather the support and resources needed to hold the proposed September 2017 events under the JFF Marks” Petitioner “decided it was in the best interests of all to move the events to September 2018.”) (22 TTABVUE 8); Reese declaration ¶¶ 6, 7 (17 TTABVUE 6). (The “coordination efforts [for the film festival] took longer than anticipated”). 71 Logoreci declaration ¶ 19 and exhibit 30 (22 TTABVUE 8, 50-53); Reese declaration ¶ 7 (17 TTABVUE 6); Logoreci rebuttal declaration ¶ 5 (28 TTABVUE 6). 72 Logoreci declaration ¶ 20 (22 TTABVUE 8). Cancellation No. 92071893 - 24 - showcasing local films through the Jax City Limits initiative.”73 The marks have been displayed between 2018 and 2020 as follows: 74 75 76 77 78 73 Logoreci declaration ¶ 22 and exhibit 32 (22 TTABVUE 8-9, 65-70). 74 Logoreci declaration, exhibit 30 (22 TTABVUE 50). 75 Logoreci declaration, exhibit 31 (22 TTABVUE 58). 76 Logoreci declaration, exhibit 35 (22 TTABVUE 92). 77 Logoreci declaration, exhibit 31 (22 TTABVUE 56). 78 Logoreci declaration, exhibit 31 (22 TTABVUE 62). Cancellation No. 92071893 - 25 - According to Mr. Logoreci, the following expenditures have been made for advertising and marketing Petitioner’s marks to promote consumer awareness: ● 2020: $532.40; ● 2019: $7,188.02; ● 2018: $586.86; ● 2017: $587.73; ● 2016: $1,026.26; ● 2015: $499.01; and ● 2014: $4,592.99.79 Petitioner applied to register the JACKSONVILLE FILM FESTIVAL mark at the USPTO in February 26, 2019, (Serial No. 88316007), under Section 2(f), “to indicate acquired distinctiveness of the trademark from many years of use and consumer recognition of the source of JFE’s services associated with the trademark.”80 The USPTO refused registration on the basis of likelihood of confusion with Registrant’s LOL JAX FILM FESTIVAL and design trademark, Registration No. 5442652.81 Petitioner’s witness introduced copies of its application for the JACKSONVILLE FILM FESTIVAL mark for Serial No. 88316007 as well as the Office Action issued by the Office.82 79 Logoreci declaration ¶ 26 (22 TTABVUE 9). 80 Logoreci declaration ¶¶ 35, 36 and exhibit 38 (22 TTABVUE 10, 11, 104-106). 81 Seventh Notice of Reliance (23 TTABVUE 4-53); Logoreci declaration ¶ 37 and exhibit 38 (22 TTABVUE 11, 107-111). 82 Logoreci Declaration ¶ 37 and exhibit 38 (22 TTABVUE 10-11, 99-111). The Office Action was also submitted under notice of reliance. Seventh Notice of Reliance (23 TTABVUE 4-53). Cancellation No. 92071893 - 26 - B. Respondent Respondent, Adam Madrid, owner of the LOL Jax Film Festival mark, co-founded, along with Monique Madrid, the LOL Jax Film Festival, a comedy and stand-up film festival for local Jacksonville filmmakers and film related services and events.83 The co-founders conceived the name LOL, Laughing Out Loud and Love our Locals Festival, in 2016.84 In connection with the film festival, Respondent and his co- founder worked with a graphic design firm “to research and design stylized logo and promotional materials for the mark,” as well as “identifying potential LOL sponsors, attending local and regional film industry events, and participating in other local events with potential supporters to generate interest and raise community awareness in the LOL Mark.”85 The mark (“LOL mark”) has been used “as early as fall 2016” to market and promote the services “on flyers, advertisements in local print & digital magazines, newspaper articles in Northeast Florida, broadcast television channels in Jacksonville, Florida, on LOL YouTube channel, and LOL 83 A. Madrid declaration ¶ 2 (24 TTABVUE 5); M. Madrid declaration ¶¶ 2, 3, (25 TTABVUE 5). 84 A. Madrid declaration ¶¶ 2, 10 (24 TTABVUE 5, 7-8); M. Madrid declaration ¶¶ 2, 8 (25 TTABVUE 5-7). 85 A. Madrid declaration ¶¶ 4, 6 (24 TTABVUE 6-7); M. Madrid declaration ¶ 5 (25 TTABVUE 6). Cancellation No. 92071893 - 27 - Facebook, Twitter and Instagram social media pages, and by networking with supporters of the film industry at local film industry events.”86 Examples of social media posts include the following: 87 88 86 A. Madrid declaration ¶¶ 5, 7 (24 TTABVUE 6, 7); M. Madrid declaration ¶ 6 (25 TTABVUE 6). 87 A. Madrid declaration, exhibit 5 (24 TTABVUE 89). 88 A. Madrid declaration, exhibit 9 (24 TTABVUE 120). Cancellation No. 92071893 - 28 - 89 90 91 92 An example of an undated flyer is shown below: 89 A. Madrid declaration, exhibit 4 (24 TTABVUE 90). 90 A. Madrid declaration, exhibit 4 (24 TTABVUE 48). 91 M. Madrid declaration, exhibit 18 (25 TTABVUE 15). 92 M. Madrid declaration, exhibit 18 (25 TTABVUE 16). Cancellation No. 92071893 - 29 - 93 Respondent’s witnesses testified that ongoing entertainment and film related services and events have been held continuously under the “LOL Mark” since as early as the fall of 2016.94 The first annual film event was held on August 6, 2017.95 According to Respondent’s “experience and knowledge,” “the services offered under the LOL Mark are known by consumers to originate from LOL … and LOL’s film festivals are known as the leading comedy and stand-up film events in Northeast 93 A. Madrid declaration, exhibits 2 and 4 (24 TTABVUE 23, 49). 94 A. Madrid declaration ¶ 9 (24 TTABVUE 7); M. Madrid declaration ¶ 7 declaration (25 TTABVUE 6). 95 A. Madrid declaration ¶ 16 declaration and exhibits 2 and 4 (24 TTABVUE 7, 34-36, 46-47, 49, 54, 63-64 69-83). Cancellation No. 92071893 - 30 - Florida.”96 Respondent’s LOL festival was “voted as Best Film Festival in Jacksonville three years in a row” (between 2017-through 2020) by local publication Folio Weekly “Best of Jax 2020.”97 Respondent’s advertising and promotional expenditures to promote consumer awareness of the “LOL mark” are as follows:  2020: $3,287.20  2019: $1,378;  2018: $2,026.25; and  2017: $1,042.”98 IV. Statutory Entitlement to Bring a Petition to Cancel Entitlement to a statutory cause of action must be established in every inter partes case.99 Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26 , 109 USPQ2d 2061, 2067 n.4 (2014)), cert. denied sub. nom., Naked TM, LLC v. Australian Therapeutic Supplies Pty. Ltd., 142 S. Ct. 211 (2021). A party in the position of plaintiff may petition for cancellation of a registered mark where it is within the zone of interests protected by the statute, 15 U.S.C. § 1064, and the party has a reasonable belief in damage proximately caused 96 A. Madrid declaration ¶ 11 (24 TTABVUE 8); M. Madrid declaration ¶ 9 (25 TTABVUE 7). 97 M. Madrid declaration ¶ 9 (25 TTABVUE 7). 98 M. Madrid declaration ¶ 10 (25 TTABVUE 7). 99 Board 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.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Cancellation No. 92071893 - 31 - by continued registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-7 (Fed. Cir. 2020), cert. denied sub. nom., Corcamore, LLC v. SFM, LLC, 141 S. Ct. 2671 (2021). Demonstrating a real interest in cancelling the registration of a mark satisfies the zone-of-interests requirement, and demonstrating a reasonable belief in damage by the registration of a mark suffices to show damage proximately caused by such registration. Id. at *7-8. “In most settings, a direct commercial interest satisfies the ‘real interest’ test.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 64 USPQ2d 1375, 1377 (Fed. Cir. 2002). A reasonable belief in damage may be shown by a likelihood of confusion claim that is not wholly without merit. See Lipton Indus., Inc. v. Ralston Purina Co., 607 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Petitioner’s evidence of its pending trademark application for JACKSONVILLE FILM FESTIVAL that was refused registration based on Respondent’s JAX FILM FESTIVAL and design registration is sufficient to establish an interest falling within the zone of interests protected by the statute and a reasonable basis for its belief of damage proximately caused by registration of the mark. Australian Therapeutic Supplies 2020 USPQ2d 10837, at *3. Therefore, Petitioner has established its statutory entitlement to bring its petition to cancel. Lipton Indus., 213 USPQ at 189; Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008). V. Priority To establish priority on a likelihood of confusion claim brought under Section 2(d), a party must prove that, vis-à-vis the other party, it owns “a mark or trade name Cancellation No. 92071893 - 32 - 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, 64 USPQ2d at 1378. See also Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (a party may establish its own 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). As noted above, Petitioner seeks to rely on common law rights in its marks JACKSONVILLE FILM FESTIVAL and JAX FILM FEST and the following composite and design marks: in connection with planning and conducting film festival events for cultural and entertainment purposes. A party seeking to cancel a registration due to a likelihood of confusion with its own unregistered mark cannot prevail unless the party shows that it has “trade identity rights in the prior user’s term. Those trade identity rights arise when the term is distinctive, either inherently or through the acquisition of secondary meaning.” Towers v. Advent Software Inc., 913 F.2d 942, 16 USPQ2d 1039, 1042 (Fed. Cir. 1990) (and applying the rule of Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981)). If the mark is not inherently Cancellation No. 92071893 - 33 - distinctive, the determination of priority is based on the date the party’s pleaded mark acquired distinctiveness. Perma Ceram Enters. Inc. v. Preco Indus. Ltd., 23 USPQ2d 1134, 1138 (TTAB 1992). 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 of validity attaches to” Respondent’s involved Registration, and Petitioner “must rebut the presumption” by a preponderance of the evidence). A. Respondent’s Priority Date Although Respondent can rely on its August 7, 2017 filing and constructive use date for priority, Respondent’s witness’ testimony references his marketing and promotional activities in fall 2016, prior to the August 2017 date the film festival took Cancellation No. 92071893 - 34 - place.100 We can only presume a date of December 31, 2016 from this testimony. See Bass Pro Trademarks, L.L.C. v. Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1856 (TTAB 2008) (“In view of the uncertainty of respondent’s testimony and lack of documentation, we conclude that respondent’s date of first use can be no earlier than March 31, 1995, the last day of the specified time period identified in Mr. Utgaard’s testimony”) (citing Osage Oil & Trans., Inc. v. Standard Oil Co., 226 UPSQ 905, 911 n.22 (TTAB 1985)); EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 213 USPQ 597, 598 n.5 (TTAB 1982) (documentary evidence showed first use in 1977, the month and day were unknown, therefore, the Board could not presume any date earlier than the last day of the proved period); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 903.06 (Indefinite dates of use) (July 2021). Accordingly, Respondent seeks to rely on a date later than his alleged first use date in the underlying service mark application (October 26, 2016) but earlier than his alleged actual or technical service mark use date (May 17, 2017) for his mark in connection with arranging and conducting film festivals. Although Respondent seeks to rely on a priority date earlier than its underlying application filing date (constructive use date) for its LOL mark, Respondent did not specifically allege in its answer, in connection with its defenses of abandonment and 100 A. Madrid declaration ¶¶ 5, 16 and exhibits 2 and 4 (24 TTABVUE 6, 9, 34-36, 46-47, 49, 54, 63-64). Cancellation No. 92071893 - 35 - lack of proprietary rights, what is termed “use analogous to trademark use.” Under a theory of analogous use, a party seeks to establish that pre-sales activities, publicity, and promotions created an association in the relevant public’s mind so as to constitute analogous use that precedes a party’s trademark application filing date. T.A.B. Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881 (Fed. Cir. 1996). Because Respondent may not rely on an unpleaded issue, we must determine whether this issue was tried by implied consent. Implied consent can be found only where the non-offering party (1) raised no objection to the introduction of the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue. H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1721 (TTAB 2008). Respondent’s witnesses testified about non-trademark use of the involved mark prior to its actual service mark use and provided evidence of same, without objection from Petitioner. Respondent briefed the issue, and Petitioner responded to these arguments in its reply. Therefore, we find that the issue was tried by implied consent. We deem the pleadings to be amended accordingly. Fed. R. Civ. P. 15(b)(2). As indicated, Respondent seeks to “tack on” non-trademark usage in connection with his pre-sales activities for purposes of establishing priority under Section 2(d). Westrex Corp. v. New Sensor Corp., 83 USPQ2d 1215, 1218 (TTAB 2007). However, “analogous use must be more than mere advertising.” Id. The U.S. Court of Appeals for the Federal Circuit summarized the test for the sufficiency of analogous use efforts: “whether [the use] was sufficiently clear, widespread and repetitive to create the required association in the minds of the Cancellation No. 92071893 - 36 - potential purchasers between the mark as an indicator of a particular source and the [product or] service to become available later.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1882. The analogous trademark use also must be shown to have had a substantial impact on the purchasing public, id., and the user must establish an intent to appropriate the mark. Id. at 1883. In addition, the “tacking” theory under which use analogous to trademark use operates requires that actual technical trademark use must follow within a commercially reasonable period of time. Dyneer Corp. v. Auto. Prods. plc, 37 USPQ2d 1251, 1256 (TTAB 1995); Evans Chemetics, Inc. v. Chemetics Int’l Ltd., 207 USPQ 695, 700 (TTAB 1980). To show the consuming public’s identification of the target word or phrase with the source of a given product or service, a survey or other direct evidence is not required. T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1881. Instead, the fact finder may infer the fact of identification of the consuming public on the basis of indirect evidence of use of the word or phrase in advertising brochures, catalogs, newspaper ads, and articles in newspapers and trade publications. Id. For purposes of establishing priority via analogous trademark use, “the actual number of potential customers reached ….is the focal point” of the inquiry. Id. at 1883. “Thus, the user must prove that the ‘necessary association’ was created among more than an insubstantial number of potential customers.” Id. We must weigh the evidence provided for use analogous to service mark use as a whole, rather than considering each piece of evidence in isolation. W. Fla Seafood, Cancellation No. 92071893 - 37 - 31 USPQ2d at 1663. Respondent must prove this first use date by a preponderance of the evidence because he relies on a date no earlier than the alleged first use date in the application. See Martahus v. Video Duplication Servs. Inc., 3 F.3d 417, 27 USPQ2d 1846, 1852 n. 7 (Fed. Cir. 1993) (if Respondent seeks to prove a first use date earlier than alleged in an application it must prove the alleged earlier date by “clear and convincing” evidence rather than preponderance of the evidence). The testimony of Respondent’s witnesses did not establish the size of the market for his film festival services, and the only evidence of consumer exposure in the record for the time period in later 2016 through Respondent’s actual use date is social media posts, promotional flyers and other marketing material.101 Respondent’s witnesses discussed in general terms the use of social media platforms and marketing materials.102 As indicated, there was no relevant witness testimony relating to the extent of consumer exposure to the promotional flyers (distribution or display) or social media platforms (such as the number of followers, likes, or other analytics or metrics) and we consider them for what they show on their face because they are otherwise hearsay.103 Respondent’s witness provided advertising and promotional expenditures for 2017 ($1,042),104 but provided no advertising and promotional expenditures for 2016. 101 A. Madrid declaration ¶¶ 5-6 (24 TTABVUE 6-7). 102 A. Madrid declaration ¶¶ 4-5 (24 TTABVUE 6); M. Madrid declaration ¶¶ 3, 4, 6 (25 TTABVUE 5-6). 103 As indicated earlier in this decision, the social media exhibits also have little probative value due to the lack of competent testimony. 104 M. Madrid declaration ¶ 10 (25 TTABVUE 7). Cancellation No. 92071893 - 38 - In view of the lack of testimony related to market size, the lack of specific testimony related to consumer exposure to Respondent’s marketing materials and social media, the limited number of social media posts provided, as well as their limited probative value, we find that Respondent’s advertising was not sufficiently widespread and repetitive and did not have a substantial impact on the potential consumer of his services. T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1883. Considering the testimony and evidence as a whole, Respondent’s evidence falls short of showing that his alleged use of prior to his actual service mark use created any prior public identification with Respondent’s services. Although the parties did not brief this issue, we find that while the record fails to establish Respondent’s prior use in connection with his claimed services as of Respondent’s asserted May 17, 2017 use in commerce date,105 it does show use in commerce on August 6, 2017, one day prior to Respondent’s constructive use application filing date. Thus, we find the earliest date on which Respondent can rely for purposes of priority is August 6, 2017. 105 Respondent relies in its brief (33 TTABVUE 9) on announcements on social media pages “that Registrant & Mrs. Madrid would appear on River City Live & The Chat on Friday, May 19, 2017 to announce official details about the 2017 LOL Jax Film Festival event” as its first use in commerce date. However, these announcements do not constitute actual service mark use as the film festival event did not occur until August 6, 2017. Cancellation No. 92071893 - 39 - B. Petitioner’s Priority In order for Petitioner to prevail on its priority claim, it must prove that it has a proprietary interest in the JACKSONVILLE FILM FESTIVAL, JAX FILM FEST, , and marks and that the interest was obtained, and not abandoned, prior to Respondent’s August 6, 2017 use in commerce date. We consider Respondent’s pleaded defense of abandonment, which has been tried and briefed, in determining Petitioner’s prior rights in its pleaded common law marks. 1. Abandonment defense Respondent argues that there is evidence in the record of prima facie abandonment, as Petitioner ceased operations after the 2012 film festival event and did not resume operations and promoting the marks until 2016.106 Petitioner, while acknowledging its “interruption of services,” with resumption of film festivals in 2018, argues that efforts to resume use were initiated in 2014, with Petitioner “engaging in several activities that focused on service delivery of the JFF marks.”107 Under Section 45 of the Trademark Act, 15 U.S.C. § 1127, a mark shall be deemed abandoned: 106 Respondent’s brief (33 TTABVUE 19-20). 107 Petitioner’s brief (29 TTABVUE 12; 29-30). Petitioner argues that Respondent has failed to meet its burden of persuasion. Petitioner’s brief (29 TTABVUE 30). Cancellation No. 92071893 - 40 - When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in the mark. There are two elements to an abandonment claim: nonuse of the mark and intent not to resume use. Noble House Home Furnishings, LLC v. Floorco Enters., LLC, 118 USPQ2d 1413, 1417 (TTAB 2016). The Board has applied the statutory presumption of prima facie abandonment based on three consecutive years of nonuse “to a party’s unregistered common-law mark.” Miller Brewing Co. v. Oland’s Breweries [1971] Ltd., 548 F.2d 349, 192 USPQ 266, 267 (CCPA 1976); L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1967 (TTAB 2007); Giersch v. Scripps Network, 90 USPQ2d at 1024. “Abandonment is a question of fact” and “any inference of abandonment must be based on proven fact.” Yazhong Investing Ltd. v. Multi- Media Tech. Ventures, Ltd., 126 USPQ2d 1526, 1532-33 (TTAB 2018) (citing Stock Pot Rest., Inc. v. Stockpot, Inc., 737 F.2d 1576, 222 USPQ 665, 667 (Fed. Cir. 1984) and Section 45 of the Trademark Act). Here, Respondent claims Petitioner abandoned its mark prior to Respondent’s adoption and use, therefore negating Petitioner’s claim of priority. “If a defendant raising abandonment as an affirmative defense against prior common law rights can show three consecutive years of nonuse, it has established a prima facie showing of abandonment, creating a rebuttable presumption that the mark was abandoned with intent not to resume use.” Azeka Bldg. Corp. v. Azeka, 122 USPQ2d 1477, 1485 (TTAB 2017). The burden of production (i.e., going forward) then shifts to the plaintiff, to Cancellation No. 92071893 - 41 - produce evidence that it has either used the mark or that it has intended to resume use. Azeka Bldg. Corp., 122 USPQ2d at 1485. However, the burden of persuasion remains with the party attempting to prove abandonment by a preponderance of the evidence. See On-Line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000); Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1310 (Fed. Cir. 1989). Petitioner does not deny it failed to offer film festival services for nearly a six year period.108 The evidence of record, consisting largely of witness testimony of Petitioner’s prior board members or supporters and current board members, along with some documentary evidence, clearly establishes that after early November 2012 until about mid-September 2018 there was no use of JACKSONVILLE FILM FESTIVAL, JAX FILM FEST, JAX FILM FEST composite design mark, or the turtle design mark in the ordinary course of trade in relation to planning and conducting film festival events for cultural and entertainment purposes.109 The statements of Petitioner’s witnesses that Petitioner never had an intention to abandon the mark, without more, is irrelevant. An affirmative desire not to relinquish a mark is not determinative of the intent element of abandonment under the Trademark Act. Yazhong Investing Ltd., 126 USPQ2d at 1538; Azeka Bldg. Corp., 108 Petitioner’s brief (29 TTABVUE 12, 29-30). 109 Kolb declaration ¶ 14 (20 TTABVUE 7); Harper declaration ¶¶ 8, 15 (21 TTABVUE 6, 7); Logoreci declaration ¶ 4 (22 TTABVUE 6). In 2012, Petitioner held the film festival event November 1-4 2012, and in 2018, it held the film festival event September 14-18, 2018. Kolb declaration ¶ 13 and exhibit 15 (20 TTABVUE 7, 56-57); Logoreci declaration, exhibit 30 (22 TTABVUE 50). Cancellation No. 92071893 - 42 - 122 USPQ2d at 1487 (quoting Imperial Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575, 14 USPQ2d 1390, 1394 (Fed. Cir. 1990) (“In every contested abandonment case, the respondent denies an intention to abandon its mark; otherwise there would be no contest.”)). Accordingly, as established by the witness testimony and evidence, Petitioner’s nonuse for a period in excess of three consecutive years establishes prima facie abandonment of the marks JACKSONVILLE FILM FESTIVAL, JAX FILM FEST, JAX FILM FEST composite design mark, and the turtle design mark.110 Given this prima facie showing that Petitioner ceased use of its mark, there is a rebuttable presumption that Petitioner abandoned its mark with intent not to resume use. The burden of production (i.e., going forward) shifts to Petitioner to produce evidence that it intended to resume use. We now consider Petitioner’s testimony and evidence related to its purported intent to resume use. We may consider evidence regarding practices that occurred before or after the three-year period of nonuse to infer intent to resume use during 110 Petitioner argues in its brief that “Registrant has neglected to supply any evidence in support of … an alleged three-year period of abandonment.” Petitioner’s brief (29 TTABVUE 30). However, Respondent may rely on Petitioner’s adduced testimony and evidence. Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d 1146, 1151 (TTAB 2016) (“Once in the record, a party may properly argue the probative effect of such evidence.”); Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a) (“When evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.”). Petitioner also argues in its brief that Respondent did not supply any evidence of “any intent to abandon the JFF Marks by the Petitioner.” Petitioner’s brief (29 TTABVUE 30). However, although the burden of persuasion remains with Respondent, as indicated, once prima facie abandonment has been established, it is incumbent upon Petitioner to rebut the presumption with admissible evidence. Cancellation No. 92071893 - 43 - the three-year period. Crash Dummy Movie LLC v. Mattel Inc., 601 F.3d 1387, 94 USPQ2d 1315, 1317 (Fed. Cir. 2010). To support a finding of intent to resume use of the mark, the owner must do more than simply assert a vague, unsubstantiated intent to make use of the mark at some unspecified time in the future. Rather, the owner must build a record “with respect to what activities it engaged in during the nonuse period or what outside events occurred from which an intent to resume use during the nonuse period may reasonably be inferred.” Imperial Tobacco Ltd. v. Philip Morris Inc., 14 USPQ2d at 1394. The owner’s plans to resume commercial use of a mark must be within the “reasonably foreseeable future” and “will vary depending on the industry and the particular circumstances of the case.” Azeka Bldg. Corp., 122 USPQ2d at 1487 (quoting Emergency One Inc. v. Am. FireEagle Ltd., 228 F.3d 531, 56 USPQ2d 1343, 1348 (4th Cir. 2000)). For example, “[a] food preparation business does not have particularly high barriers to entry.” Azeka Bldg. Corp., 122 USPQ2d at 1487. “Efforts to exploit use of the mark that are ‘neither consistent nor sustained’” are insufficient to show an intent to resume use as are “evidence of vague discussions concerning the potential use of the mark at some unknown point in the future.” Azeka Bldg. Corp., 122 USPQ2d at 1488. Unsolicited business proposals or ideas to resume use of the mark will not prove intent unless the record supports that the owner undertook a genuine and substantial or serious consideration of a business idea where use of the mark would be resumed. See Yazhong Investing, 126 USPQ2d at 1539 (“The evidence in this case does not show serious negotiations toward execution Cancellation No. 92071893 - 44 - of any license agreement. Respondent’s efforts were neither consistent nor sustained, and assertions of discussions concerning the potential use of the mark at some unknown point in the future are insufficient to show an intent to resume use.”); Azeka Bldg. Corp., 122 USPQ2d at 1488 (“the record falls short of showing that Opposer responded to or seriously considered any of the unsolicited inquiries in a manner that permits us to infer an intent to resume use”). According to the record, by the time Mr. Logoreci approached Petitioner in 2014, the board of directors had disbanded, leaving Michael Boylan as President of Petitioner, three trustees (Robert Monsky, Todd Roobin, and William E. Hill) and a functioning executive committee.111 Therefore, in considering Petitioner’s intent, we are not concerned with Mr. Logoreci’s intent to resume the operations of Petitioner. Rather, we must look to the actions and activities of Petitioner through its President, Mr. Boylan, and Petitioner’s executive committee because they are the people representing Petitioner at that time. We consider whether the testimony and evidence reflects that Petitioner engaged in any activities to resume the film festival, prior to contact with Mr. Logoreci. We also consider whether Mr. Boylan and the executive committee undertook a genuine, substantial and serious consideration of Mr. Logoreci’s unsolicited proposal to resume Petitioner’s activities during the three year nonuse period which resulted in a prima 111 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 40); Logoreci declaration ¶¶ 6-7 and exhibits 28 and 29 (Minutes of Special Meeting of the Board of Directors Jacksonville Film Events Inc. April 1, 2016; Jacksonville Film & Television Advisory Board Minutes September 7, 2016) (22 TTABVUE 6, 32, 45); Harper declaration ¶¶ 15, 17 (21 TTABVUE 7). Cancellation No. 92071893 - 45 - facie abandonment. We focus on activities that occurred after the November 2012 film festival and prior to Mr. Logoreci’s unsolicited business proposal, as well as activities that occurred up through the April 2016 transfer to Mr. Logoreci. If intent to resume is not established during the three year abandonment period, then we may conclude that Petitioner has not met its burden of production, and thus has failed to rebut the presumption of abandonment. Cerveceria Centroamericana, 13 USPQ2d at 1313. Any intent to resume use after that period would be considered new use. Id. Petitioner did not provide testimony from Mr. Boylan, the trustees, or other members of the executive committee nor any documentary evidence to shed light on: (1) Petitioner’s level of interest in Mr. Logoreci’s unsolicited business proposal;112 (2) the circumstances and timing surrounding Petitioner’s request for a business plan from Mr. Logoreci;113 (3) the executive committee’s engagement with Mr. Logoreci during the period both prior to the request for a business plan and during the period when Mr. Logoreci was generating the business plan; nor 112 As discussed above, Mr. Logoreci asked Mr. Boylan on February 23, 2015 if he could “send over and share” an old business plan, financial information, and a power point presentation. Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). Mr. Logoreci sent a follow up email on March 2, 2015, when Mr. Boylan did not respond to his earlier email request. Id. As indicated earlier in this decision, see n. 33, it is unclear whether Mr. Boylan ever provided the documents sought by Mr. Logoreci. 113 Sometime in 2015, Mr. Boylan asked Mr. Logoreci to present a business plan and financial projections to Petitioner. Logoreci declaration ¶ 9 (22 TTABVUE 6-7). Cancellation No. 92071893 - 46 - (4) any specific testimony or documentary evidence relating to negotiations or agreements to transfer responsibility over Petitioner’s operations to Mr. Logoreci’s care. We have some limited email communications between Mr. Logoreci and Mr. Boylan (February, March, April and May 2015 and December 2015) that we have considered.114 Oral testimony, even of a single witness, may be adequate to establish priority, but only if it is sufficiently probative. See Powermatics, Inc. v. Glebe Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965). Such testimony “should not be characterized by contradictions, inconsistencies, and indefiniteness but should carry with it conviction of its accuracy and applicability.” B.R. Baker Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ 232, 236 (CCPA 1945); Nationstar Mortg. LLC v. Ahmad, 112 USPQ2d 1361, 1372 (TTAB 2014). Oral testimony is strengthened by corroborative documentary evidence. Elder Mfg. Co. v. Int’l Shoe Co., 194 F.2d 114, 92 USPQ 330, 333 (CCPA 1952). Portions of Petitioner’s witness Ms. Harper’s testimony relating to Petitioner’s activities and actions in relation to Mr. Logoreci’s unsolicited proposal115 are not probative, as this testimony is inconsistent with the documentary evidence and other witness testimony made of record. Cent. Garden & Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1145 (TTAB 2013) (“While a party may establish priority by oral 114 Logoreci declaration, exhibit 23 (22 TTABVUE 17-20). 115 Harper declaration ¶¶ 16-18 (21 TTABVUE 7-8). Cancellation No. 92071893 - 47 - testimony alone, testimony which is uncertain or inconsistent is insufficient”). For example, Ms. Harper recounts that Mr. Logoreci and his co-workers were involved in discussions in 2014 with the executive committee.116 However, as reflected by testimony from Petitioner’s witnesses Mr. Reese and Mr. Yeaple, they could not have been involved in any discussions with the executive committee in 2014, as both witnesses became involved in Mr. Logoreci’s efforts to assume control of Petitioner in February 2015 and September 2015, respectively.117 Ms. Harper also testified that there was an agreement to transfer responsibility over Petitioner’s operations to Mr. Logoreci’s care in 2014.118 However, this testimony is inconsistent with the other witness testimony and documentary evidence indicating that: (1) Mr. Boylan or the executive committee requested a business plan and financial projections from Mr. Logoreci sometime in 2015; (2) documents for transferring the 501(c)(3) organization to Mr. Logoreci were not prepared until 2016; and (3) the formal transfer occurred on April 1, 2016.119 Lastly, Ms. Harper’s testimony that all of Petitioner’s records were transferred to Mr. Logoreci in 2014 is inconsistent with the documentary evidence reflecting that Mr. Logoreci was seeking documentation from Mr. Boylan and other prior board 116 Harper declaration ¶ 16 (21 TTABVUE 7). 117 Reese declaration ¶ 1 (17 TTABVUE 5); Yeaple declaration ¶ 1 (19 TTABVUE 5). 118 Harper declaration ¶¶ 17-18 (21 TTABVUE 7-8). 119 Logoreci declaration ¶ 9 and exhibits 23 and 28 (22 TTABVUE 6-7, 19, 32-33). Cancellation No. 92071893 - 48 - members or supporters in February, March, April, and May 2015 in connection with his information and research efforts to assume control of Petitioner.120 Therefore, we accord this portion of Ms. Harper’s testimony little, if any, probative value. Petitioner’s witness Ms. Kolb’s testimony that “from 2004-2014” she was a “sponsor of services and events” featuring the pleaded marks is internally inconsistent with her testimony that Petitioner was unable to put on film festival events in 2013, and is inconsistent with the testimony of Ms. Harper who testified that Petitioner chose not to pursue an annual film festival in 2014 due to lack of funding.121 Therefore we accord the portion of Ms. Kolb’s testimony relating to her sponsorship in the years 2013-2014, little, if any probative value. Much of Petitioner’s witnesses’ testimony contains broad general statements as to dates and activities, much of which lack corroborating documentary evidence. Broad general statements by witnesses are usually not adequate, especially in the absence of corroborating documentary evidence. H. Betti Indus., Inc. v. Brunswick Corp., 211 USPQ 1188, 1197 (TTAB 1981) (vague, indefinite and inconsistent testimony accompanied by inadequate documentary evidence insufficient to support priority claim). In particular, Mr. Logoreci’s testimony is general, vague, indefinite and nonspecific as to dates and activities and interactions with Petitioner’s executive 120 Harper declaration ¶ 18 (21 TTABVUE 7); Logoreci declaration, exhibit 23 (22 TTABVUE 17-19). 121 Kolb declaration ¶¶ 3, 14 (20 TTABVUE 5, 7); Harper declaration ¶ 15 (21 TTABVUE 15). Cancellation No. 92071893 - 49 - committee and Mr. Boylan that took place during the 2014 to 2015 time period.122 Mars Generation, Inc. v. Carson, 2021 USPQ2d 1057, at *20 (TTAB 2021) (probative value of testimony also is significantly undermined by witness’ utter lack of detail). Portions of Mr. Reese’s, Mr. Yeaple’s, Ms. Kolb’s and Ms. Harper’s testimony are similarly nonspecific as they provide only general references to time periods by year; some of these general references are unsupported by corroborating documentary evidence. a. Petitioner’s activities relating to conducting film festivals 2013-2015 Petitioner is a nonprofit organization, and the documentary evidence in the record indicates that film festival services are funded through sponsors, in-kind donations, grants, supporter contributions, and ticket sales.123 Selling single tickets to film festival related events has proved challenging for Petitioner and does not yield a large amount of revenue.124 Obtaining sponsors for film festivals events is also difficult.125 Large sponsors have pulled back from sponsorships for film festivals.126 Potential 122 Logoreci declaration ¶¶ 6-9, 18 (22 TTABVUE 6-8). 123 Harper declaration, exhibits 21 and 22 (“Enriching our community with outstanding cinema is only possible with the financial support from private donors, government grants and the business community.”) (21 TTABVUE 30-32, 34); Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 42). 124 Kolb declaration, exhibit 13, (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 42). 125 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 42). 126 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes, January 10, 2018) (20 TTABVUE 42). Cancellation No. 92071893 - 50 - sponsors and other large businesses want to see numbers such as projected attendance for the film festival to justify sponsorship dollars.127 Witness testimony indicates that in 2013 and 2014, Petitioner was unable to pursue an annual film festival due to lack of funding.128 However, excusable non-use requires more than just reasonable business explanations for the decision not to use a trademark; the trademark owner must demonstrate an intent to resume use within the reasonably foreseeable future. Executive Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1198-99 (TTAB 2017) (in assessing excusable nonuse in this context, “plans must be to resume commercial use of a mark within the ‘reasonably foreseeable future’”). Here, other than witness statements that Petitioner did not have the financial means to conduct the festivals nor the personnel (executive director),129 the record is silent as to whether Petitioner made any plans to resume film festival services subsequent to the November 2012 film festival event. In particular, there is no evidence or testimony that Petitioner engaged in planning activities for a potential film festival event, or sought to raise the funds to 127 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes, January 10, 2018) (20 TTABVUE 42). 128 Kolb declaration ¶ 14 (20 TTABVUE 7) (Petitioner “was unable to offer events for financial reasons” in 2013); Harper declaration ¶ 15 (21 TTABVUE 7) (Petitioner chose “not to pursue an annual film festival in 2014 due to a lack of funding and an inability to hire an executive director.”). Although Mr. Logoreci testified that Petitioner’s advertising expenditures for 2014 were “$4,592.99,” Logoreci declaration ¶ 26 (22 TTABVUE 9), this figure is provided without elaboration as to the nature of the advertising and without any documentary support. This testimony appears inconsistent with Ms. Harper’s testimony that Petitioner could not pursue a 2014 film festival due to lack of funding. 129 Harper declaration ¶ 15 (21 TTABVUE 7); Kolb declaration ¶14 (20 TTABVUE 7). Cancellation No. 92071893 - 51 - conduct the film festival through sponsorships, supporters or grants, or sought an executive director.130 It appears that Petitioner’s board of directors disbanded sometime in 2014, as the testimony indicates that Mr. Logoreci’s 2014 contacts were with Petitioner’s President, Mr. Boylan, and Petitioner’s executive committee.131 As indicated, we accord little probative value to Ms. Harper’s testimony relating to the activities that occurred between Petitioner and Mr. Logoreci in 2014. In addition, Mr. Logoreci’s testimony that 2014 was a “transition period” for Petitioner is simply too vague and general for us to infer that any agreements had been made to allow Mr. Logoreci to assume Petitioner’s 501(c)(3) nonprofit corporation and to transfer responsibility to Mr. Logoreci at that time. Witness testimony and documentary evidence shows that Mr. Logoreci spent time in 2015 speaking to potential supporters of Petitioner and discussing plans with 130 Although somewhat unclear, Respondent argues that no goodwill from Petitioner’s earlier use period attached to the later use in 2016 after three years nonuse. Respondent’s brief, (33 TTABVUE 15). Petitioner rejects this argument as “convoluted,” “fictional” and “unsupported.” Petitioner’s reply brief (34 TTABVUE 5). We find residual goodwill to be a non-issue, as Petitioner’s few posts on social media unrelated to its film festival services would not create residual goodwill during these years to avoid abandonment. Logoreci declaration, exhibit 24 (22 TTABVUE 23). Compare Parfums Nautee Ltd. v. Am. Int’l Indus., 22 USPQ2d 1306, 1309 (TTAB 1992) (no residual goodwill by virtue of the product's long shelf life and possible continued sales by retailers) with Am. Motors Corp. v. Action-Age, Inc., 178 USPQ 377, 378 (TTAB 1973) (residual goodwill exists based on prior renown of the mark, the large number of vehicles still on the road, opposer’s activities in supplying parts and accessories to owners of the vehicles, and the use by dealers of mark portions of their corporate or business names and use of the mark on signs on their premises). 131 Logoreci declaration ¶¶ 6, 7 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 6, 32-38); Kolb declaration ¶ 9 and exhibit 13, (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 6, 40-46); Harper declaration ¶¶ 15, 17 (21 TTABVUE 7). Cancellation No. 92071893 - 52 - various individuals about a potential 2016 film festival.132 It appears that many of Mr. Logoreci’s activities such as meeting prior board members and potential supporters and sponsors and obtaining documentation were in the nature of seeking information and research133 (“I will actually be flying to San Francisco next week for San Francisco International Film Festival and meeting the board there and get as much research and information they can give me to make this project possible”) as Mr. Logorecci had no prior film festival experience.134 We cannot attribute these 2015 activities to Petitioner because nothing in the record indicates that Mr. Logoreci was directed by Mr. Boylan or the executive committee to undertake these activities on its behalf. b. Initial 2014 contacts with Petitioner, request for business plan and agreement to transfer operations As indicated, although Mr. Logoreci testified that the years 2014 through 2015 were the “transition period,” 135 the documentary record reflects that there was no agreement to transfer operations in 2014. In late February 2015, Mr. Logoreci thanked Mr. Boylan by email for meeting with him and stated that “I wanted to thank you again for being open and having the time to meeting with me. I wanted to let you 132 Logoreci declaration ¶ 10 and exhibit 23 (22 TTABVUE 7, 18). 133 Logoreci declaration, exhibit 23 (22 TTABVUE 18). 134 Kolb declaration, exhibit 30 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018) (20 TTABVUE 41). 135 Logoreci declaration ¶ 8 (22 TTABVUE 6). Cancellation No. 92071893 - 53 - know I am very serious about this project and I am putting 100% in to it.”136 Mr. Logoreci also asked Mr. Boylan if he could share any past business plans and financial projections.137 It is unclear if at the time of Mr. Logoreci’s February 2015 email request, the executive committee and Mr. Boylan had requested a business plan and financial projections from him. Mr. Logoreci testified that by the time the request for a business plan had been made “by the Board,” he had “recruited the support of [three of] my Apple co-workers,” and they assisted him with the preparation of the business plan.138 According to Apple co-worker witness testimony, Mr. Reese’s involvement began sometime in February 2015, while Mr. Yeaple’s involvement began sometime in September 2015.139 Given that Mr. Logoreci identified Mr. Yeaple as being recruited to assist in creating the business plan when the request was made, we infer that the request for the business plan was sought by Mr. Boylan and the executive committee sometime in September 2015.140 In any event, even if the business plan was sought by Mr. Boylan and the executive committee in February 2015, nothing in the record shows that the business plan was completed and presented to Mr. Boylan and the executive committee during 2015. 136 Logoreci declaration, exhibit 23 (22 TTABVUE 17). 137 Logoreci declaration, exhibit 23 (22 TTABVUE 17). 138 Logoreci declaration ¶ 9 (22 TTABVUE 7-8). 139 Reese declaration ¶ 1 (17 TTABVUE 5); Yeaple declaration ¶ 1 (19 TTABVUE 5). 140 Petitioner’s level of interest in Mr. Logoreci’s business proposal by seeking a business plan is discussed infra. Cancellation No. 92071893 - 54 - Instead, it appears that by December 30, 2015, Mr. Logoreci was preparing to present his business plan to Mr. Boylan: “We have been working on some ideas we would like to share with you, and get your feedback and talk about what the next steps are for JFF. We have completed a timeline, sponsor package, and renovating the brand of JFF.”141 Then, sometime in early 2016 the parties agreed “to transfer the [nonprofit 501(c)(3)] company” to allow Mr. Logoreci to assume direction of Petitioner.142 A February 2016 email from Mr. Logoreci to Mr. Boylan indicates that the “paperwork” is complete for transferring control over the organization to him, and advises Mr. Boylan of the procedures to accomplish this action.143 Ultimately, the “official transfer” occurred on April 1, 2016 with new Board members elected.144 c. Petitioner’s level of interest in Mr. Logoreci’s unsolicited proposal Due to lack of evidence, it is unclear what level of interest Mr. Boylan and the executive committee had in Mr. Logoreci’s unsolicited proposal in 2014 to take charge of Petitioner’s operations and assume a leadership role. Initially this proposal could only be considered a vague idea since the documentary evidence reflects that Mr. 141 Logoreci declaration, exhibit 23 (6 TTABVUE 19). 142 Logoreci declaration, exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 32-33). 143 Logoreci declaration, exhibit 23 (6 TTABVUE 19). 144 Logoreci declaration ¶ 16 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 18, 32-33). Cancellation No. 92071893 - 55 - Logoreci had no film festival experience and was obtaining information and research about film festival services at least between April and May 2015. Mr. Logoreci kept Mr. Boylan apprised of his activities in this regard, and Mr. Boylan agreed to file Petitioner’s May 2015 annual report “to keep the corporate status current.”145 Mr. Boylan also apparently provided assistance to Mr. Logoreci in restoring Petitioner’s Internal Revenue Code § 501(c)(3) nonprofit status.146 However, these activities do not necessarily evidence that Petitioner was seriously considering Mr. Logoreci’s proposal, or had made any agreement with him, but were more an attempt to keep control over the corporation, yet made ready for transfer, if and when, it was agreed that Mr. Logoreci was in a position to assume Petitioner’s operations and was capable of putting on a film festival. Mr. Logoreci’s testimony is simply too general and vague to determine the nature of the interactions between Mr. Boylan and the executive committee regarding any negotiations and agreements made. The documentary evidence also is lacking as none has been provided to reflect communications between Mr. Logoreci and Mr. Boylan in 2014 or during certain time periods in 2015. There is thus a gap in the documentary record provided, reflecting no written email communications between Mr. Logoreci and Mr. Boylan in 2014, and none from May 8, 2015 through December 29, 2015. 145 Logoreci declaration, exhibit 23 (6 TTABVUE 18). 146 Logoreci declaration, exhibit 23 (6 TTABVUE 19). Cancellation No. 92071893 - 56 - The executive committee’s request in 2015 that Mr. Logoreci provide a business plan does indicate some level of interest by Petitioner in Mr. Logoreci’s unsolicited proposal to resume Petitioner’s operations. However, until there was a concrete business proposal by Mr. Logoreci provided to Petitioner, his offer to take charge of Petitioner and to assume leadership and to resume film festival services was nothing more than a vague offer, especially since there were no sponsorships or grants to support such an endeavor in 2015 or even 2016.147 See Yazhong Investing, 126 USPQ2d at 1539 (“Respondent cannot rely upon mostly unsubstantiated assertions of vaguely defined efforts, apparently conducted without an operating budget, to license goods and services in order to keep someone else from adopting a mark it has abandoned”); Parfums Nautee, 22 USPQ2d at 1310 (respondent’s intention relative to future conduct was speculative and remote). From the present record, we simply cannot assess how seriously Petitioner was considering Mr. Logoreci’s unsolicited proposal at any point in 2014 or 2015 due to the lack of testimony and evidence reflective of Mr. Boylan’s or the executive committee’s perspective during the relevant time frame.148 147 Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018 (20 TTABVUE 40-46). 148 It appears from the testimony that Mr. Logoreci and his co-worker team presented the business plan to Mr. Boylan no earlier than the April 1, 2016 special Board meeting (“we presented our business plan and the attached presentation to the outgoing Board”). Logoreci declaration ¶ 16 and exhibit 28 (Minutes of the Special Meeting of the Board of Directors of Jacksonville Film Events Inc. April 1, 2016) (22 TTABVUE 8, 32-38). Kolb declaration, exhibit 13 (Jacksonville Film & Television Advisory Board Minutes January 10, 2018 (“Niki and his team gave a presentation to Boylan, which led to Niki’s team taking over the organization and trying to revitalize the festival.”)) (20 TTABVUE 40). Cancellation No. 92071893 - 57 - Although ultimately, there was serious consideration and acceptance by Mr. Boylan and the executive committee of Mr. Logoreci’s offer to assume Petitioner’s operations, as indicated by the testimony and documentary evidence, it appears that serious consideration took place in 2016. As stated, the documentary evidence indicates that Mr. Logoreci was not ready to provide a concrete business plan until December 30, 2015, and as shown by the documentary evidence, any agreements for an official transfer occurred in 2016. “Whether adequate proof was in fact available but simply was not gathered and proffered is not a subject on which we can, should or do speculate. Rather, we must take the record as [Petitioner] made it.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1884; H. Betti Industries, 211 USPQ at 1197 (“Presuming, as we must, that Petitioner made the strongest showing possible, and viewing the record as a whole, a presumption is created that Petitioner used the mark for some ten years, failed to use it for six years and then resumed its use. If the facts are otherwise, it was incumbent on Petitioner to present them.”). Viewing the record as a whole, we find, based on the testimony and documentary evidence, that there is no evidence of an intent to resume use during the period after the November 1-4, 2012 film festival through November 5, 2015, because there was no serious consideration by Petitioner of Mr. Logoreci’s unsolicited business proposal to resume operations of Petitioner to conduct film festival services until after the prima facie three year abandonment period. Therefore, Mr. Logoreci’s activities during 2015, when he was not in control of Petitioner, cannot support Petitioner’s intent to resume use of the pleaded common law marks. Cancellation No. 92071893 - 58 - In 2016, activities undertaken by Mr. Logoreci and the new board of directors to again use the mark ultimately concluded with the resumption of the film festival in September 2018. These activities represent an intent to resume a new and separate use which cannot serve to cure the abandonment. Cerveceria Centroamericana, 13 USPQ2d at 1313 (evidence showed that activities had been undertaken to show intent to resume use not during the period of abandonment, but two years later); Stromgren Supports Inc. v. Bike Athletic Co., 43 USPQ2d 1100, 1112 (TTAB 1997) (“[T]hese later efforts, had actual use ever commenced, would represent a new and separate use which cannot serve to cure the abandonment.”); Parfums Nautee, 22 USPQ2d at 1310 (“Respondent’s later efforts, of whatever nature and quality, represent a new and separate use, and cannot serve to cure the prior abandonment”) (citation omitted). d. Petitioner’s priority date based on new use We find that Petitioner abandoned its pleaded common law marks JACKSONVILLE FILM FESTIVAL, JAX FILM FEST, and marks in November 2015 before the April 1, 2016 transfer to Mr. Logoreci and the new board of directors. We now consider whether Petitioner has established a new priority date.149 See e.g, General Motors Corp. v. Aristide & Co., Antiquaire de Marques, 87 149 Petitioner introduced evidence of the promotion of its services during its hiatus from film festival events through September 2018, when actual use resumed, which purportedly supports its intent to resume use as well as its claim of priority, which Respondent addressed in its brief relating to its abandonment defense. Therefore, we consider the issue of Petitioner’s analogous use priority tried by implied consent. Cancellation No. 92071893 - 59 - USPQ2d 1179, 1183 (TTAB 2008) (after finding abandonment “three years after 1940,” the Board considered opposer’s licensing of its mark beginning in the 1990s to see if opposer had established a new priority date.) We also address whether Petitioner’s efforts to resume use in 2016 and 2017 of the JACKSONVILLE FILM FESTIVAL mark can be tacked on to Petitioner’s actual use in September 2018 to establish a priority date before Respondent’s August 6, 2017 use in commerce date.150 As stated, Petitioner provided only general testimony introducing the Facebook, Twitter, and Instagram posts and website pages, and did not provide relevant, competent testimony about the social media posts’ content or metrics. These exhibits are hearsay and can be considered only for what they show on their face. Petitioner’s publicity, consisting mostly of social media and website posts, are summarized in the chart below. Date Social Media Post Views Mark July 17, 2016151 Facebook Updated profile picture 19 likes, comments, shares New logo only 150 None of the evidence reflects use in 2016 or 2017 of the other abandoned pleaded common law marks (JAX FILM FEST, JAX FILM FEST and design and turtle design marks) prior to Respondent’s priority date. 151 Logoreci declaration, exhibit 27 (22 TTABVUE 29); Yeaple declaration, exhibit 9A (19 TTABVUE 7). The Yeaple exhibit 9A reflects 8 comments, 49 shares and 13K views. Cancellation No. 92071893 - 60 - Date Social Media Post Views Mark August 1, 2016152 Facebook Teaser ad, with no title displayed; post title: “can you keep a secret” 24,310 reached; 1,105 post clicks; 253 reactions, comments, and shares; 1,358 engagements; Jacksonville Film Festival August 2, 2016153 Facebook Teaser ad boosted 23k views; 11.6K 3 second video plays Jacksonville Film Festival August 31, 2016154 Facebook Announcement about updated website 7 comments, 11 shares Jacksonville Film Festival October 26, 2016155 Facebook “stay tuned for exciting news from JFF” 9 comments, 22 shares, 23K views Jacksonville Film Festival August 1, 2016156 Instagram Teaser ad with title “Bringing Film back” 2 views Jacksonville Film Festival October 27, 2016157 Instagram “2017 we bring it back”; picture of Jacksonville film festival logo 30 likes Jacksonville Film Festival 152 Logoreci declaration, exhibit 27 (22 TTABVUE 28). 153 Logoreci declaration, exhibit 27 (22 TTABVUE 28). 154 Yeaple declaration, exhibit 9A (19 TTABVUE 9). 155 Logoreci declaration, exhibit 24 (22 TTABVUE 24). 156 Logoreci declaration, exhibit 29 (22 TTABVUE 38). 157 Logoreci declaration, exhibit 24 (22 TTABVUE 22); second notice of reliance (18 TTABVUE 13). Cancellation No. 92071893 - 61 - Date Social Media Post Views Mark November 20, 2016158 Instagram Jacksonville film festival logo with superimposed image “we have some awesome news coming soon” 49 likes Jacksonville Film Festival August 1, 2016 Twitter Teaser ad, title “Bringing Film Back”; post: “can you keep a secret” 70 views Jacksonville Film Festival August 7, 2016159 Twitter “film will be returning to Jacksonville in 2017” unknown Jacksonville Film Festival September 25, 2016160 and October 3, 2016161 Internet archive wayback machine capture Website Landing page, and link for teaser ad displayed; wording on page stating: “The first ten years were just the beginning” “Watch teaser” unknown Jacksonville Film Festival 2016-2017162 Sponsorship Package Distribution numbers unknown; evidence of 2 emails sent to potential sponsors in the record Jacksonville Film Festival 158 Logoreci declaration, exhibit 23 (22 TTABVUE 16). 159 Logoreci declaration, exhibit 24 (22 TTABVUE 23). 160 Second notice of reliance (18 TTABVUE 12). 161 Yeaple declaration, exhibit 9B (19 TTABVUE 10-11). 162 Reese declaration, exhibit 2 (17 TTABVUE 11-28). Cancellation No. 92071893 - 62 - We consider whether Petitioner’s “advertising [is widespread and] of sufficient clarity and repetition to create the required identification” and “reached a substantial portion of the public that might be expected to purchase the service” to show “significant impact on the purchasing public.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1376-77. The general size of the market for Petitioner’s services is in the thousands.163 Except for a few of the Facebook posts, most of the other social media posts do not show on their face widespread consumer exposure given the size of the market. Many of the posts on the various social media platforms are the teaser advertisement “Bringing Film Back.”164 It is unclear on this record whether this teaser advertisement sufficiently creates a clear association of the mark with the film festival services, even if such use by Petitioner of this teaser advertisement is repetitive. Other posts are simply advising the viewer of “exciting” or “awesome” news in the future without any specifics. These posts provide no clear association of the mark with the services. A Facebook post providing information about Petitioner’s updated website and a post reflecting Petitioner’s updated logo also provide no clear association with the services. Overall, there is not a high volume of social media activity or exposure on any of the platforms to show sufficient repetitiveness, nor are any of the postings sufficiently 163 Logoreci declaration ¶ 24 (22 TTABVUE 9). 164 Petitioner did not submit the still frames or a digital copy so we can see the entire advertisement. Cancellation No. 92071893 - 63 - clear to provide a connection with the film festival services. As to Petitioner’s website, we have no testimony regarding the number of unique visitors to Petitioner’s webpage that could provide information about consumer exposure. There also is no testimony describing the volume of distribution of the sponsorship brochures. Looking at the evidence as a whole, we find that Petitioner’s advertising was not “sufficiently clear, widespread and repetitive to create the required association in the minds of the potential purchasers between the mark as an indicator of a particular source and the service to become available later.” T.A.B. Sys. v. PacTel Teletrac, 37 USPQ2d at 1376. In view of the foregoing, we find that Petitioner has not established that its activities had a substantial impact on the purchasing public that created an association between its mark and services (that is, use analogous to service mark use) prior to Respondent’s use date of August 6, 2017. VI. Conclusion Based on the record before us, Petitioner did not prove it is the owner of proprietary rights in JACKSONVILLE FILM FESTIVAL prior to Respondent’s August 6, 2017 use in commerce date - either by prior common law service mark use or prior use analogous to service mark use. Inasmuch as Petitioner has not established its priority, Petitioner cannot prevail on its claim of likelihood of confusion under Section 2(d).165 Exec. Coach Builders, 123 USPQ2d at 1199 (if a 165 As our decision regarding Petitioner’s lack of priority resolves this proceeding, we need not consider Respondent’s additional defense of lack of acquired distinctiveness in connection with priority; nor the defenses of acquiescence and laches that would be considered in connection with the likelihood of confusion claim. See Multisorb Techs., Inc. v. Pactiv Corp., Cancellation No. 92071893 - 64 - petitioner relying on prior use does not establish a date of priority before respondent’s priority date, likelihood of confusion need not be addressed because, without proof of its priority, the petitioner cannot prevail). Decision: The petition for cancellation is denied. 109 USPQ2d 1170, 1171 (TTAB 2013) (“[T]he Board … [may] use[] its discretion to decide only those claims necessary to enter judgment and dispose of the case.”).