JB Livsey Holdings, LLC d/b/a Ranger Technology Solutionsv.Stephen W. Wagner

Trademark Trial and Appeal BoardMay 28, 2020

92065388 (T.T.A.B. May. 28, 2020)

This Opinion is Not a Precedent of the TTAB Hearing: May 5, 2020 Mailed: May 28, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ JB Livsey Holdings, LLC d/b/a Ranger Technology Solutions v. Stephen Wagner _____ Cancellation No. 92065388 _____ Frederick L. Tolhurst of Cohen & Grigsby, P.C. for Petitioner. Stephen Wagner Respondent, pro se. _____ Before Thurmon, Deputy Chief Administrative Trademark Judge, and Kuczma and Hudis, Administrative Trademark Judges. Opinion by Hudis, Administrative Trademark Judge: Stephen Wagner (“Respondent”) is the owner of record of the following registrations, both issued on the Principal Register, for the marks RANGER AMERICAN (in standard characters) and RANGER AMERICAN & Design in the following format: Cancellation No. 92065388 - 2 - The services recited in both registrations are the “monitoring of security systems” in International Class 45.1 After the Board twice denied the parties’ cross-motions for summary judgment, in large part for insufficiently pleaded claims and defenses,2 with the following exceptions as noted below, the operative pleading for Petitioner, JB Livsey Holdings, 1 Registration Nos. 4637031 (the “‘031 Registration”) and 4637029 (the “‘029 Registration”), were both issued on November 11, 2014. The underlying applications for both registrations were filed on April 9, 2014 under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), based upon Respondent’s claim of first use anywhere and first use in commerce since at least as early as July 2003. Both registrations contain the following disclaimer: “No claim is made to the exclusive right to use ‘AMERICAN’ apart from the mark as shown.” Respondent’s RANGER AMERICAN & Design mark of the ‘029 Registration is described as follows: “Color is not claimed as a feature of the mark. The mark consists of a stylized concentric oval. The outer oval is shaded. There are two stars in the shaded oval. One star is on the left center portion of the oval and the other star is on the right center portion of the oval. The top of the shaded oval presents the word ‘RANGER’ and the bottom of the shaded oval presents the word ‘AMERICAN’. The inner oval presents an eight pointed star.” 2 Board Orders denying cross-motions for summary judgment, 19 TTABVUE and 26 TTABVUE. Petitioner could not obtain summary judgment on an issue that has not been properly pleaded. Asian and Western Classics B.V. v. Selkow, 92 USPQ2d 1478, 1480 (TTAB 2009); and Respondent could not obtain summary judgment on an improperly pleaded defense, see Omega SA (Omega AG) (Omega Ltd.) v. Alpha Phi Omega, 118 USPQ2d 1289, 1291 n.2 (TTAB 2016). Citations to the record or briefs in this opinion also include citations to the publicly available documents on TTABVUE, the Board’s electronic docketing system. See, e.g., Turdin v. Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). The number preceding “TTABVUE” corresponds to the docket entry number; the number(s) following “TTABVUE” refer to the page number(s) of that particular docket entry. All citations to documents contained in the TTABVUE database are to the downloadable .pdf versions of the documents in the USPTO TTABVUE Case Viewer. Cancellation No. 92065388 - 3 - LLC d/b/a Ranger Technology Solutions (“Petitioner”) is its First Amended Petition to Cancel Registration (“Amended Petition”);3 and the operative pleading for Respondent is his Amended Answer and Affirmative Defenses to Petitioner’s Petition to Cancel Registration (“Amended Answer”).4 In its Amended Petition, Petitioner seeks to cancel Respondent’s ‘031 and ‘029 Registrations on the following grounds: (1) priority and likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based upon Petitioner’s claim of prior common law use of the very same marks shown in Respondent’s registrations, (2) fraud in Respondent’s procurement of the ‘031 and ‘029 Registrations, and (3) Respondent’s lack of bona fide use of each of the RANGER AMERICAN and RANGER AMERICAN & Design marks in commerce in connection with the services recited in each registration as of April 9, 2014, the filing date of the underlying use-based applications that issued as the ‘031 and ‘029 Registrations. However, because Petitioner did not pursue its fraud claim in its Trial Brief we do not give this claim any further consideration. See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner’s pleaded descriptiveness and geographical descriptiveness claims not argued in brief deemed waived), aff’d, 565 Fed. Appx. 900 (Fed. Cir. 2014) (mem.). Respondent’s Amended Answer denies the salient allegations of the Amended Petition and asserts numerous affirmative defenses. However, Respondent’s defenses 3 27 TTABVUE. 4 28 TTABVUE. Cancellation No. 92065388 - 4 - that Petitioner lacks standing, that Petitioner’s claims are barred by the doctrines of acquiescence and/or estoppel, and that Petitioner never made use in commerce of its pleaded common law marks have been stricken as insufficiently pleaded.5 Of Respondent’s remaining pleaded affirmative defenses, the only defense Respondent pursued in his Trial Brief is that Petitioner abandoned the common law marks on which Petitioner bases its Section 2(d) likelihood of confusion claim. We do not give any further consideration to Respondent’s defenses not pursued in his Trial Brief. See, Alcatraz Media, 107 USPQ2d at 1753 n.6 (respondent’s affirmative defense of failure to state a claim not argued in brief deemed waived). The case is fully briefed, and the parties appeared for an oral hearing before the Board. Having considered the evidentiary record and the parties’ arguments, we grant the Amended Petition solely on the ground that Respondent failed to prove his bona fide use of each of the RANGER AMERICAN and RANGER AMERICAN & Design marks in commerce on or before the filing date of the underlying use-based applications that issued as the ‘031 and ‘029 Registrations. Thus, the underlying applications and the resulting registrations are void ab initio. ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1045 (TTAB 2012). Because our decision on Petitioner’s void ab initio claim is dispositive of this proceeding, we do not reach Petitioner’s priority and likelihood of confusion claim nor Respondent’s affirmative defense of abandonment. See Azeka Bldg. Corp. v. Azeka, 122 USPQ2d 1477, 1478 (TTAB 2017) (Board has “discretion to decide only those 5 Board Order striking affirmative defenses, 33 TTABVUE. Cancellation No. 92065388 - 5 - claims necessary to enter judgment and dispose of the case” as its “determination of registrability does not require, in every instance, decision on every pleaded claim.”) (quoting Multisorb Tech., Inc. v. Pactive Corp., 109 USPQ2d 1170, 1171-72 (TTAB 2013)). I. The Evidentiary Record The record consists of the pleadings and, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the files of Respondent’s involved registrations. In addition, the parties introduced the following evidence: A. Petitioner’s Evidence Petitioner submitted several Notices of Reliance, serving to introduce into the record: (1) a portion of the file history to Petitioner’s pending Application Serial No. 87206473 to register the mark RANGER AMERICAN, showing a refusal to register on grounds of likely confusion with Respondent’s marks of the ‘031 and ‘029 Registrations, (2) the summary judgment Declaration of Ronald Bowden, former Chairman and CEO of one of Petitioner’s claimed predecessors in interest, with exhibits, and (3) portions of the transcript and an exhibit from Mr. Bowden’s cross- examination testimony deposition.6 Petitioner also submitted transcripts and 6 Petitioner’s Notices of Reliance may be found at 40, 41, 47, 48, 66, 72 TTABVUE. The Board does not understand why Petitioner filed copies Mr. Bowden’s summary judgment declaration and exhibits numerous times, muddling and creating unnecessary bulk to the record. Cancellation No. 92065388 - 6 - exhibits from the testimony depositions of Jacqueline Beth Reid a/k/a Beth Giles and Chadwick Lee (“Chad”) Mosley, founders and co-owners of Petitioner.7 B. Respondent’s Evidence Via a combination of his own transmittal declarations and Notices of Reliance, Respondent submitted the following materials: (1) a transcript from Respondent’s telephone conversation (which Petitioner’s counsel did not attend) with F. Wayne Hayes, a purported predecessor in interest to Petitioner, (2) the Amended Testimony Declaration with exhibits, and Supplemental Testimony Declaration, of Robert Tigges, a former employee of one of Petitioner’s claimed predecessors in interest, (3) the Testimony Declaration of James Burke Yates, a former employee of one of Petitioner’s claimed predecessors in interest, (5) the full transcript and exhibits from Mr. Bowden’s cross-examination testimony deposition, (6) the transcript and exhibits from Ms. Reid’s cross-examination testimony deposition, and (7) Respondent’s memoranda, Declarations and exhibits in opposition to Petitioner’s denied summary judgment motions and in support of Respondent’s denied cross-motions for summary judgment.8 7 Petitioner’s testimony deposition transcripts and exhibits may be found at 91, 92 and 93 TTABVUE. Again, the Board does not understand why Petitioner filed copies of the transcript and exhibits from Mr. Mosley’s testimony deposition twice. 8 Respondent’s submissions may be found at 53, 54, 57, 82 and 85-89 TTABVUE. The Board does not understand why Respondent filed copies of the transcript and exhibits from Respondent’s telephone conversation with Mr. Hayes twice. Cancellation No. 92065388 - 7 - C. Petitioner’s Rebuttal Evidence Petitioner submitted numerous Rebuttal Notices of Reliance, serving to introduce into the record the Rebuttal Testimony Declarations and exhibits of Petitioner’s co- owners, employees and former employees: Jacqueline Beth Reid a/k/a Beth Giles, Chadwick Lee (“Chad”) Mosley, Joseph Guerrero, Ryan Johnson and Terry Miller.9 II. Evidentiary Matters Before proceeding to the merits of this cancellation proceeding, we address several evidentiary issues. To begin, since we do not decide the merits of Petitioner’s Section 2(d) claim, we also do not decide the admissibility of evidence directed to that claim. For example, Respondent moved to strike the rebuttal testimony declarations of Messrs. Guerrero, Johnson and Miller on the grounds that the identities of these witnesses were not timely disclosed and that their testimony constituted improper rebuttal.10 Respondent’s motion to strike was deferred until final decision.11 Since these rebuttal testimony declarations are directed to Petitioner’s priority and likelihood of confusion claim and Respondent’s abandonment defense, we decline to consider further Respondent’s motion to strike as it is moot. 9 Petitioner’s rebuttal Notices of Reliance, testimony declarations and exhibits may be found at 67-71 TTABVUE. Once more, the Board does not understand why Petitioner filed the same exhibits multiple times accompanying the Reid, Mosley, Guerrero and Johnson rebuttal declarations. 10 Respondent’s Motion to Strike, 73 TTABVUE. 11 Board Order, 90 TTABVUE 10. Cancellation No. 92065388 - 8 - We consider the admissibility of the parties’ evidence directed to Petitioner’s standing, Petitioner’s void ab initio claim, and Respondent’s contrary evidence, in the course of deciding the merits of this proceeding in our discussion below. III. The Parties Founded in 2012 by Ms. Reid and Mr. Mosely, Petitioner asserts it is in the business of selling, installing and monitoring home security systems. Petitioner claims use of the RANGER AMERICAN and RANGER AMERICAN & Design marks in connection with these services since its founding, and through predecessors in interest dating back to 1977.12 Respondent asserts he has provided monitoring, technical support and repair services for home security systems since 2003. Petitioner claims use of the RANGER AMERICAN and RANGER AMERICAN & Design marks in connection with these services since June of that year.13 IV. Standing Standing is a threshold issue that must be proven by the plaintiff in every Board inter partes proceeding. Any person who believes it is or will be damaged by registration of a mark has standing to file a petition for cancellation. Trademark Act Section 14, 15 U.S.C. § 1064. The plaintiff must demonstrate that it possesses a “real interest” in a proceeding beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 12 Petitioner’s Brief, 97 TTABVUE 8-12, 14-24. 13 Respondent’s Brief, 99 TTABVUE 7-8. Cancellation No. 92065388 - 9 - 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quotation omitted), cert. denied, 135 S. Ct. 1401 (2015). A “real interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir. 1999). A claim of likelihood of confusion that “is not wholly without merit,” including prior use of a confusingly similar mark, may be sufficient “to establish a reasonable basis for a belief that one is damaged.” Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Once a plaintiff can show standing on one ground, it has the right to assert any other properly pleaded ground in a cancellation proceeding. Corporacion Habanos, S.A. v. Rodriguez, 99 USPQ2d 1873, 1877 (TTAB 2011). Here, Petitioner has pleaded a likelihood of confusion claim that is not wholly without merit, including prior use of confusingly similar (in fact, identical) marks for related and identical services to those of Respondent.14 With its claim of damage arising from Respondent’s continued registrations, Petitioner sufficiently pleaded its standing. Petitioner also pleaded, and demonstrated during its testimony period, that it filed Application Serial No. 87206473 to register the RANGER AMERICAN mark for “installation, maintenance and repair of commercial and residential low-voltage security and electronic equipment” in International Class 37, and that this Application was refused registration on grounds of likelihood of confusion with Respondent’s RANGER AMERICAN and RANGER AMERICAN & Design marks of 14 Amended Petition for Cancellation, 27 TTABVUE 3-9. Cancellation No. 92065388 - 10 - the ‘031 and ‘029 Registrations.15 These additional allegations and proofs are sufficient to demonstrate Petitioner’s standing. Lipton Indus., 213 USPQ at 190. V. Petitioner’s Void Ab Initio Claim In the Amended Petition, Petitioner alleges the following: 1. Respondent filed the U.S. trademark application that matured into the ‘029 Registration (U.S. Application Serial Number 86-246,782) (herein “the ‘782 Application”) on April 9, 2014. The ‘782 Application sought registration of a “a stylized concentric oval” that includes the words “Ranger” and “American” as further described inter alia for use in connection with “monitoring of security systems” (herein “the RANGER AMERICAN & Design Mark”). 2. Respondent also filed U.S. trademark application that matured into the ‘031 Registration (U.S. Application Serial Number 86-246,795) (herein “the ‘795 Application”) on April 9, 2014. The ‘795 Application sought registration of the words “Ranger American” in “standard characters, without claim to any particular font, style, size or color” as further described inter alia for use in connection with “monitoring of security systems” (herein “the RANGER AMERICAN Mark”). * * * 47. The ‘782 and ‘795 Applications are “use” applications under 15 U.S.C. § 1051(a) for which the mark must be in use in commerce in connection with the services listed in the application as of the application filing date. The ‘029 and ‘031 Registrations should be cancelled because when Respondent filed the ‘782 and ‘795 Applications in April 2014 he was not offering services in interstate commerce for “monitoring of security systems” - the only services that are described in both the ‘029 and ‘031 Registrations.16 The law is clear that a use-based application and its resulting registration can be held void if the plaintiff pleads and proves nonuse of a mark for the identified services prior to the application filing date. See ShutEmDown Sports, 102 USPQ2d at 1045 15 Amended Petition for Cancellation, 27 TTABVUE 2, 16-17; Petitioner’s Notice of Reliance 40 TTABVUE 4-14. 16 Amended Petition for Cancellation, 27 TTABVUE 3, 17. Cancellation No. 92065388 - 11 - (citing Grand Canyon West Ranch LLC v. Hualapai Tribe, 78 USPQ2d 1696, 1697 (TTAB 2006). A service mark is deemed to be “in use … on services” when it is used or displayed in the sale or advertising of services and the services are rendered in commerce. Trademark Act Section 45, 15 U.S.C. § 1027; Couture v. Playdom, Inc., 778 F.3d 1379, 113 USPQ2d 2042, 2043-44 (Fed. Cir. 2015). “The registration of a mark that does not meet the use requirement is void ab initio.” Lyons v. Am. Coll. of Veterinary Sports Med. & Rehab., 859 F.3d 1023, 123 USPQ2d 1024, 1027 (Fed. Cir. 2017) (citing Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 90 USPQ2d 1301, 1305 (Fed. Cir. 2009)). As the U.S. Court of Appeals for the Federal Circuit in Aycock further explained: The language of the statute, by requiring that the mark be “used or displayed in the sale or advertising of services, and the services are rendered in commerce,” makes plain that advertisement and actual use of the mark in commerce are required; mere preparations to use that mark sometime in the future will not do. Aycock, 90 USPQ2d at 1308. The Federal Circuit extended this principle six years later in Couture v. Playdom, Inc., 778 F.3d 1379, 1382, 113 USPQ2d 2042, 2044 (Fed. Cir. 2015) (“To qualify for registration, the Lanham Act requires that the mark be both used in the sale or advertising of services and that the services themselves have been rendered in interstate or foreign commerce.” (emphasis in original)) (citing J.T. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 19:103 (4th ed. Supp. 2013)). Notably, moreover, “any alleged use subsequent to the filing date of [Respondent’s underlying] use-based application[s] … is not bona fide use as of the Cancellation No. 92065388 - 12 - filing date of [those] … application[s].” Clorox Co. v. Salazar, 108 USPQ2d 1083, 1086 (TTAB 2013). Petitioner contends that “[t]here is no competent evidence that Respondent applied the [RANGER AMERICAN or RANGER AMERICAN & Design marks] to any product or used them in connection with any security system monitoring service as of April 9, 2014 – the filing date of the ‘029 and ‘031 Registrations or at any other time.”17 Respondent argues that that his “registrations are presumptive evidence of that use and he is not required to show his use of the [RANGER AMERICAN or RANGER AMERICAN & Design marks] in this proceeding.”18 This argument is incorrect. Baseball America, Inc. v. Powerplay Sports, Ltd., 71 USPQ2d 1844, 1848 n.10 (TTAB 2004) (“The dates of use alleged in applicant’s applications are not evidence of such use, nor are the application specimens evidence on applicant’s behalf.”); Eikonix Corp. v. CGR Med. Corp., 209 USPQ 607, 613 n.7 (TTAB 1981) (“Specimens submitted with an application cannot be considered as evidence in behalf of applicant unless identified and introduced in evidence during the appropriate trial period ...”). Nonetheless, Respondent did attempt to demonstrate his use of the RANGER AMERICAN and/or RANGER AMERICAN & Design marks as of the filing date of his applications underlying his service mark registrations. We now turn to the parts of the evidentiary record on which Respondent relies. 17 Petitioner’s Brief, 97 TTABVUE 14. 18 Respondent’s Brief, 99 TTABVUE 14-15. Cancellation No. 92065388 - 13 - Respondent asserts he has provided monitoring, technical support and repair services since 2003.19 As proof, Respondent refers to a letter dated November 12, 2003 between Alarm Control Technicians, Inc. (a company with which Respondent may be affiliated, but this is not clear) and HomeTeam Security “with respect to the provision of Central Station [monitoring] Services.”20 The letter further states that “[a] [t]elephone line has been made available to Alarm Control Technicians, Inc. customers on behalf of you and HomeTeam Security.” This letter contains no uses of the RANGER AMERICAN or RANGER AMERICAN & Design marks. Respondent next asserts that “Petitioner [sic] can also point to the deposition of Chad Mosely, who recognized [Respondent]’s use of [RANGER AMERICAN and/or RANGER AMERICAN & Design] manuals on Registrant’s website.”21 As proof, Respondent refers to portions of the transcript from Chad Mosley’s testimony deposition.22 We reviewed the portions of Mr. Mosley’s testimony to which Respondent refers, and we find no such recognition by Mr. Mosely of Respondent’s manuals bearing the RANGER AMERICAN and/or RANGER AMERICAN & Design marks. Rather, the deposition transcript pages comprise an argument between Respondent and Petitioner’s counsel as to whether Mr. Mosely could, or could not, recognize the difference between two differently-numbered models of home alarm 19 Id. at 8 and 22. 20 This letter was made part of an exhibit to the testimony deposition of Chad Mosley. 93 TTABVUE 488. 21 Respondent’s Brief, 99 TTABVUE 15. 22 Mosley Testim. Dep. Tr. 93 TTABVUE 164-167. Cancellation No. 92065388 - 14 - systems. The manuals Respondent refers to were not offered as exhibits at the Mosely deposition and therefore are not in the record here. Aside from what Respondent argued in his Trial Brief, we reviewed the evidence to determine whether the record contains any evidence of Respondent’s use of the RANGER AMERICAN or RANGER AMERICAN & Design marks on or before April 2014. On September 11, 2019, Respondent re-filed under Notices of Reliance the evidence he submitted in opposition to Petitioner’s motions for summary judgment and in support of Respondent’s cross-motions for summary judgment.23 Respondent’s summary judgment declarations were executed in December 2017 and February 2018, respectively. Respondent’s testimony period opened on April 1, 2019 and closed on May 1, 2019.24 With limited exceptions pertaining to the filing of the cross- examination testimony deposition transcripts of Mr. Bowden and Ms. Reid, Respondent’s motions to extend his testimony period were denied as being untimely filed and/or for lack of a proper showing to obtain such relief.25 Thus, the summary judgment evidence that Respondent re-filed under his September 11, 2019 Notices of Reliance were submitted untimely, and we therefore give them no consideration. Trademark Rule 2.121(a)(1), 37 C.F.R. § 2.121(a)(1) (“No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted 23 Copies of Respondent’s Summary Judgment Declarations and the specimen filed during prosecution in support of the registration of the RANGER AMERICAN and RANGER AMERICAN & Design marks, 87 TTABVUE 113-121, 178-186; 88 TTABVUE 21-24, 39. 24 Board Order, 51 TTABVUE 5. 25 Board Order, 90 TTABVUE 3-11. Cancellation No. 92065388 - 15 - by the Board, or by order of the Board.”); Baseball America Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1846 n.8 (TTAB 2004) (materials submitted outside of applicant’s assigned testimony period and which failed to comply with the Board's evidentiary rules given no consideration). Further, even if Respondent’s summary judgment evidence was timely filed during his testimony period, we still would not consider it because Respondent’s summary judgment declarations were executed well before the opening of Respondent’s testimony period. Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, *4 (TTAB 2019) (“[I]n order to properly make an affidavit or declaration of record as trial testimony, absent a stipulation or Board order, the affidavit or declaration must be executed during the assigned testimony period, unless submitted as an exhibit to other testimony and affirmed therein.”) (citing Levi Strauss & Co. v. R. Joseph Sportswear Inc., 28 USPQ2d 1464, 1465 n.2 (TTAB 1993) and Pet Inc. v. Bassetti, 219 USPQ 911, 913 n.4. (TTAB 1983)). Respondent therefore should not have relied on evidence that was not offered into evidenced in accordance with the Board’s rules. Original Appalachian Artworks Inc. v. Streeter, 3 USPQ2d 1717, 1717 n.3 (TTAB 1987).26 This leaves us with Respondent’s 2003 allegation of use in, and the specimen of use filed in support of, Respondent’s underlying applications to register the RANGER 26 Even if we were to admit Respondent’s untimely summary judgment materials into evidence, they would not have assisted Respondent in any event. Having reviewed these materials, they do not demonstrate Respondent’s use of the RANGER AMERICAN or RANGER AMERICAN & Design marks in connection with the monitoring of security systems on or before April 9, 2014, the filing date of the underlying applications for both registrations. Cancellation No. 92065388 - 16 - AMERICAN or RANGER AMERICAN & Design marks. These are of no assistance to Respondent, because: The allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark must be established by competent evidence. Specimens in the file of an application for registration, or in the file of a registration, are not evidence on behalf of the applicant or registrant unless identified and introduced in evidence as exhibits during the period for the taking of testimony. Statements made in an affidavit or declaration in the file of an application for registration, or in the file of a registration, are not testimony on behalf of the applicant or registrant. Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2). VI. Conclusion Respondent provided no probative evidence during his testimony period demonstrating his bona fide use of each of the RANGER AMERICAN and RANGER AMERICAN & Design marks in commerce in connection with the services recited in each registration on or before April 9, 2014, the filing date of the underlying use- based applications that issued as the ‘031 and ‘029 Registrations. The registrations are void ab initio and must be cancelled, solely on this ground. As noted above, we do not reach Petitioner’s Trademark Act Section 2(d) claim nor Respondent’s affirmative defense of service mark abandonment. Decision: The Amended Petition to cancel Service Mark Registration Nos. 4637031 and 4637029 is granted. These Registrations shall be cancelled in their entireties.

JB Livsey Holdings, LLC d/b/a Ranger Technology Solutions v. Stephen W. Wagner