Magma Mobilev.App Business Ventures, LLC

Trademark Trial and Appeal BoardAug 26, 2021

92068596 (T.T.A.B. Aug. 26, 2021)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: August 26, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Magma Mobile v. App Business Ventures, LLC _____ Cancellation No. 92068596 _____ Michael J. Hoisington of Higgs, Fletcher & Mack LLP, for Magma Mobile. Wendy Peterson of Not Just Patents LLC, for App Business Ventures, LLC. _____ Before Lykos, Goodman, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: App Business Ventures, LLC (“Respondent”) owns a Principal Register registration for the mark PLUMBER, in standard characters, for “computer game software for use on mobile and cellular phones,” in International Class 9.1 1 Registration No. 5250826 issued July 25, 2017, from an application filed January 2, 2017, claiming June 22, 2015, as the date of first use anywhere and the date of first use in commerce. Cancellation No. 92068596 - 2 - In its Amended Petition for Cancellation, Magma Mobile (“Petitioner”) seeks cancellation of Respondent’s registration on the ground of likelihood of confusion with its prior “common law trademark rights” in the term PLUMBER for “game applications” and “computer game software for use on mobile and cellular phones” since “at least as early as 2012,”2 under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). In the alternative, Petitioner also alleges that the mark is merely descriptive under Section 2(e)(1) of the Trademark Act, and has been abandoned by Respondent’s failure to police use of the mark.3 In its Answer, Respondent denied the salient allegations of the petition for Cancellation.4 During the interlocutory phase of this proceeding, Respondent filed two motions to amend the dates of use in the involved registration. The first motion to amend was denied because it was not sufficiently specific,5 and the second motion to amend was deferred until trial.6 The case is fully briefed. Petitioner, as plaintiff in this proceeding, bears the burden of establishing its entitlement and claims by a preponderance of the evidence. 2 Amended Petition for Cancellation, ¶¶ 2, 4; 6 TTABVUE 2. Citations to the record and briefs reference TTABVUE, the Board’s online docket system. See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, *2 n.1 (TTAB 2020). Citations to the registration file refer to the .pdf version of the TSDR system record. 3 Petitioner also pleaded fraud which was stricken, see 26 TTABVUE 4, and not repleaded. 4 Respondent also asserted various defenses, one of which was stricken and none of which is a true affirmative defense. As determined earlier in this proceeding, the defenses “are more in the nature of amplifications of Respondent’s denials.” 26 TTABVUE 5. 5 See 21 TTABVUE (first motion to amend), 26 TTABVUE 6-7 (order denying first motion). 6 See 27 TTABVUE (second motion to amend), 29 TTABVUE (order deferring second motion). Cancellation No. 92068596 - 3 - In reaching our decision, we have not considered any statements made by either party in their briefs that are unsupported by evidence in the record, nor have we considered any allegations in the pleadings that are unsupported by evidence. See Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010). Indeed, the Board is compelled to comment in this proceeding that it is unusual to see such a large deviation between what has been argued in the briefs and what the record supports. This will become evident in our discussion below. I. The Parties Petitioner is a developer of mobile game applications (apps7) and is one of the largest publishers of Android operating system games and apps.8 Petitioner began development of a game app named “Plumber” in February 2012, released a beta version of that game in France in May 2012, and released a second version of the game, named “Plumber 2,” in 2015.9 Petitioner claims that it has used the term PLUMBER as the name of its game app in the United States since at least as early as June 15, 2012.10 Petitioner’s apps are distributed through, among other platforms, 7 The parties refer to their mobile game software almost exclusively as “apps.” We take judicial notice of the definition of “app” as: “Digital Technology: an application, typically a small, specialized program downloaded onto mobile devices.” Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2021). See, e.g., Performance Open Wheel Racing, Inc. v. U.S. Auto Club Inc., 2019 USPQ2d 208901, at *4 n.34 (TTAB 2019) (Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format). 8 Robles Decl. ¶ 4 (32 TTABVUE 3). 9 Robles Decl. ¶¶ 6, 8 (32 TTABVUE 4). 10 Robles Decl. ¶ 7 (32 TTABVUE 4). Cancellation No. 92068596 - 4 - the Google Play (using the Android operating system) and the Apple (using iOS operating system) app stores.11 Respondent owns several Numberlink logic puzzle game apps which contain the term PLUMBER in their names.12 Respondent’s apps are distributed through, among other platforms, the Google Play and Apple app stores.13 Respondent claims ownership of an app named “Plumber: Reloaded” and claims that this app was released in the Android mobile operating system on June 12, 2012.14 II. The Record The record consists of the pleadings and, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the file of Respondent’s involved registration. In addition, the parties introduced the following evidence during their respective testimony periods. A. Petitioner’s evidence  Testimony declaration of Emmanuel Robles, and exhibits thereto comprising a screen shot from Petitioner’s website (Exhibit A), screen shots of internal document histories relating to development of Petitioner’s “Plumber” game app (Exhibit B), screenshots of YouTube, Google Play, and Petitioner’s archived website relating to Petitioner’s Plumber and Plumber 2 games (Exhibit C), email between Petitioner and its counsel forwarding an email notification of alleged trademark infringement from Google to 11 Robles Decl. ¶ 9 (32 TTABVUE 4). 12 2nd Arnett Decl. ¶ 2 (36 TTABVUE 2). 13 2nd Arnett Decl. ¶ 2 (36 TTABVUE 2). 14 2nd Arnett Decl. ¶ 3 (36 TTABVUE 2-3). Cancellation No. 92068596 - 5 - Petitioner (Exhibit D), and a screenshot of a Google Analytics page (Exhibit E).15  Notice of Reliance upon search result pages from game app sales platforms including Google Play and App Store (Exhibit 1), web pages related to game apps Respondent alleges to own (Exhibit 2), Respondent’s responses to various interrogatories and document requests (Exhibit 3), and Respondent’s specimen of use in the subject registration file (Exhibit 4).16 B. Respondent’s evidence  Testimony declaration of Austin Arnett (2nd Arnett Decl.), and exhibits thereto comprising Plumber: Reloaded preview pages in Apple’s App Store and Google Play (Exhibit A), Wikipedia entry for “Numberlink” logic puzzles (Exhibit B), Google Play Console reports for Plumber: Reloaded (Exhibit C), a third-party dashboard on Plumber: Reloaded (Exhibit D), Apps400 game review article (Exhibit E), samples of Respondent’s Facebook pages (Exhibit F), current Google Play screenshot for an app named “Plumber” (Exhibit G), download statistics and App Store preview for an app named “Plumber 3: Underground Pipes” and an App Store preview for an app named “Expert Plumber 2 – Save the flower puzzle” (Exhibit H), Facebook and AdMob statistics of Respondent’s advertising efforts for various Plumber-formative games (Exhibit I), an assignment document for A Plumbers Job, and two software sales agreements for Plumber: Reloaded (Exhibit J), and Google Play Console conversion rates for various Plumber-formative games (Exhibit K).17 15 32 TTABVUE 2-7 (declaration), 8-9 (Exhibit A), 10-12 (Exhibit B), 13-17 (Exhibit C), 18- 21 (Exhibit D), 22-23 (Exhibit E). 16 33 TTABVUE 2-3 (notice of reliance), 4-18 (Exhibit 1), 19-29 (Exhibit 2), 30-84 (Exhibit 3), 85-86 (Exhibit 4). 17 36 TTABVUE 2-8 (declaration), 10-15 (Exhibit A), 16-18 (Exhibit B), 19-21 (Exhibit C), 22- 26 (Exhibit D), 27-32 (Exhibit E), 33-38 (Exhibit F), 39-41 (Exhibit G), 42-60 (Exhibit H), 61- 66 (Exhibit I), 67-70 (Exhibit J), 71-72. Cancellation No. 92068596 - 6 -  Cross-examination testimony by written questions (with re-direct) of Emmanuel Robles, Petitioner’s Chief Technology Officer.18 III. The Parties’ Objections Petitioner objected to all but one of the exhibits introduced by Respondent at trial, and to those portions of the 2nd Arnett declaration which are based on or related to the accompanying exhibits.19 Petitioner argues for an estoppel sanction because these exhibits should have been produced during discovery but were not. Petitioner vents its frustration at Respondent’s discovery responses, or lack thereof, and expresses vexation and asserts prejudice because it was not until Respondent retained its third counsel in this case that any relevant documents were provided, and some documents introduced by Respondent at trial were responsive to multiple discovery requests but were never produced. Petitioner also objects to Respondent’s cross-examination of Mr. Robles based on scope, argument, and relevancy.20 While we understand Petitioner’s frustration, and even though objection to some of the material is well founded and might otherwise be sustained, we need not decide the objections here. Even when we consider all of Respondent’s evidence, we find (as discussed more fully below) that Respondent has not demonstrated, by clear and convincing evidence,21 that it is entitled to rely on a date of first use earlier than the 18 35 TTABVUE. 19 37 TTABVUE 22. 20 37 TTABVUE 23. 21 Respondent mistakenly refers to its burden as a “preponderance of the evidence.” 38 TTABVUE 5. Under the circumstances of this case, the standard for Respondent is “clear and convincing.” See NT-MDT LLC v. Kozodaeva, 2021 USPQ2d 433, *17 (TTAB 2021). Cancellation No. 92068596 - 7 - date alleged in the application underlying the subject registration. Accordingly, Petitioner’s objections are moot. Respondent’s brief is peppered with objections, the most sweeping of which is to all testimony and exhibits that Petitioner introduced at trial pertaining to its use of the mark PLUMBER because, Respondent argues, Petitioner made no attempt to delineate use of its mark in the United States from foreign or global use.22 This overarching and repeated relevancy objection is accompanied by other objections to other evidence on the bases of relevancy and competency. There is no compelling need to discuss any of these objections specifically. The Board is capable of assessing the proper evidentiary weight to be accorded the testimony and evidence, taking into account any inherent limitations and the concerns raised by the objections. See Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1478 (TTAB 2017). In considering all of the testimony and exhibits submitted by Petitioner, we have kept in mind the various objections raised by Respondent and we have accorded whatever probative value the subject testimony and evidence merit. See Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., 2020 USPQ2d 48324, *4 (TTAB 2020); M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd., 2019 USPQ2d 149090, *3 (TTAB 2019); Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017). Respondent also objects to certain arguments in Petitioner’s brief,23 but these objections appear to stem from either mischaracterizations or misunderstandings of 22 See, e.g., 38 TTABVUE 7-8, 11. 23 See, e.g., 38 TTABVUE 15 (ownership), 18 (infringement). Cancellation No. 92068596 - 8 - the nature of Petitioner’s arguments. Continuing its barrage of scattershot attacks, Respondent objects that the ground of mere descriptiveness was insufficiently pleaded.24 Although Respondent did not challenge the sufficiency of the amended petition for cancellation, the Board nonetheless reviewed the pleadings and found that the amended petition alleged a “legally sufficient” ground of mere descriptiveness.25 IV. Entitlement to Bring a Statutory Cause of Action A plaintiff’s entitlement to bring a statutory cause of action, formerly referred to as “standing,”26 must be established in every inter partes case before the Board. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, ___ S. Ct. ___ (2021); 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, 109 USPQ2d 2061, 2067 n.4 (2014)), reh’g en banc denied 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020), petition for cert. filed; Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Spanishtown Enters. v. Transcend Res., 2020 USPQ2d 11388 at *1-2. A party in the position of plaintiff may petition for 24 38 TTABVUE 20. 25 26 TTABVUE 3. 26 Board decisions previously analyzed the requirements of Section 14 of the Trademark Act, 15 U.S.C. § 1064, under the rubric of statutory “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Res., Inc., 2020 USPQ2d 11388, *1-2 (TTAB 2020). Cancellation No. 92068596 - 9 - cancellation of a registered mark where such cancellation is within the zone of interests protected by the statute, 15 U.S.C. § 1064, and the party’s reasonable belief in damage is proximately caused by continued registration of the mark. See Peterson v. Awshucks SC, LLC, 2020 USPQ2d 11526, at *6 (TTAB 2020) (citing Corcamore, 2020 USPQ2d 11277, at *6-7); Spanishtown Enters., 2020 USPQ2d 11388, at *1. See also 15 U.S.C. § 1064. Petitioner’s Chief Technology Officer, Emmanuel Robles, testified that Petitioner develops mobile game applications and has continuously used the term PLUMBER in the United States with its games since at least as early as June 15, 2012.27 He also testified that Petitioner’s and Respondent’s games are in direct competition on many of the same gaming sites, including Google Play which removed Petitioner’s PLUMBER games after Respondent complained of trademark infringement based on the subject registration.28 Mr. Robles corroborated his testimony with various exhibits including a screen shot from Petitioner’s web site providing highlights about Petitioner’s business, a screen capture of a June 15, 2012 YouTube video showing that Petitioner used the term PLUMBER on a game played on a mobile device, screen shots from Google Play showing two of Petitioner’s games named “Plumber” and “Plumber 2,” and an email from The Google Play Team indicating that Petitioner’s PLUMBER app was removed 27 Robles Dec. ¶¶ 4, 7; 32 TTABVUE 3, 4. 28 Robles Dec. ¶¶ 12, 15-16, and Ex. D; 32 TTABVUE 5, 6, 19-20. Cancellation No. 92068596 - 10 - from Google Play due to an Infringement Notice submitted by Respondent and based on Registration No. 5250826.29 Respondent challenges Petitioner’s entitlement to bring a cause of action by arguing that “Petitioner’s evidence is all tainted by lack of delineation” distinguishing between its use of PLUMBER globally as opposed to use solely in the United States, and that Petitioner has not demonstrated that it is a competitor in the U.S.30 Petitioner counters that global use necessarily includes U.S. use, and that it did specifically delineate its use of PLUMBER in the U.S. in the Robles Declaration.31 We find that the evidence submitted by Petitioner identifies an interest falling squarely within the zone of interests protected by the statute, and that Petitioner has a reasonable belief that damage is proximately caused by continued registration of Respondent’s mark. See Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1118 (TTAB 2009) (testimony that opposer uses its mark “is sufficient to support opposer’s allegations of a reasonable belief that it would be damaged” where opposer alleged likelihood of confusion). It is clear from the evidence of record that the parties are competitors32 and that Petitioner uses PLUMBER as a name for its game app in the U.S.; this also establishes Petitioner’s entitlement to bring a statutory cause of 29 Robles Dec. Exhibits A, C, and D; 32 TTABVUE 9, 14-16, 19-21. 30 38 TTABVUE 12. 31 39 TTABVUE 3 (reply brief); 32 TTABVUE 4 (Robles Dec. ¶ 4). 32 Both Petitioner and Respondent distribute their PLUMBER games via Google Play. See Robles Dec. ¶ 9, 32 TTABVUE 4 (“Petitioner continues to distribute its Plumber games through the usual channels [including] Google Play . . . .”); 2nd Arnett Decl. ¶ 6, 36 TTABVUE 4 (“Google Play, one of our [i.e., Respondent’s] distributors . . . .”). Cancellation No. 92068596 - 11 - action. See, e.g., Books on Tape, Inc. v. Booktape Corp., 836 F.2d 519, 5 USPQ2d 1301, 1302 (Fed. Cir. 1987) (finding competitor has standing because it has an interest in the outcome beyond that of the general public); Peterson v. Awshucks SC, LLC, 2020 USPQ2d 11526 at *6 (entitlement to a statutory cause of action found where petitioner and respondent are competitors); Grote Indus., Inc. v. Truck-Lite Co., LLC, 126 USPQ2d 1197, 1201-2 (TTAB 2018) (standing found where plaintiff and defendant are competitors). Cf. First Niagara Ins. Brokers Inc. v. First Niagara Fin. Grp., Inc., 476 F.3d 867, 81 USPQ2d 1375, 1378 (Fed. Cir. 2007) (use of mark in the United States by foreign opposer found to satisfy the use requirements of Section 2(d)). Therefore, Petitioner has proven its entitlement to a statutory cause of action. V. Priority Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), provides a ground for cancellation of a registration that has been on the Principal Register for fewer than five years on the basis of a petitioner’s “ownership of ‘a mark or trade name previously used in the United States . . . and not abandoned,”’ Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180 (TTAB 2017) (quoting 15 U.S.C. § 1052(d)), and a likelihood of confusion. As noted above, Petitioner has not pleaded ownership of a federal registration; rather, Petitioner relies upon common law rights in the term PLUMBER for “game applications” and “computer game software for use on mobile and cellular phones” since “at least as early as 2012.”33 Accordingly, to establish priority, Petitioner must 33 Amended Petition for Cancellation, ¶¶ 2, 4; 6 TTABVUE 2. Cancellation No. 92068596 - 12 - prove by a preponderance of the evidence that it has “proprietary rights in its pleaded common-law mark that precede [Respondent’s] actual or constructive use of its involved mark.” Exec. Coach Builders, 123 USPQ2d at 1180; see also Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981) (plaintiff must establish proprietary rights, either inherent in or by acquisition of secondary meaning in, pleaded common-law mark). A respondent may rely on its issued registration as proof of constructive use of the mark as of the filing date of its underlying application, which in this case is January 2, 2017. See Trademark Act Section 7(c), 15 U.S.C. §1057(c); see also Kemi Organics v. Gupta, 126 USPQ2d 1601, 1604 (TTAB 2018); Brewski Beer Co. v. Brewski Bros. Inc., 47 USPQ2d 1281, 1283-84 (TTAB 1998). A respondent may also prove, through testimony and other evidence, earlier use. See e.g., UMG Recordings, Inc. v. O’Rourke, 92 USPQ2d 1042, 1046 (TTAB 2009) (“Applicant is entitled to rely on the filing date of his involved application, or whatever date of first use is established by the [testimony and] evidence of record”). That is what Respondent is attempting to do in this case. Because in this proceeding Respondent claims use of the mark PLUMBER on its mobile game apps since at least as early as June 12, 2012, (i.e., earlier than the January 2, 2017 filing date of the underlying application), and Respondent’s motion to amend the dates of use in its registration was deferred until trial, we must make two broad determinations concerning Respondent’s dates of use. First, we must undertake analysis of the outstanding motion to amend to determine whether Respondent may amend its use dates. Second, because the dates Cancellation No. 92068596 - 13 - of use in the registration (whether amended or not) are not evidence on behalf of Respondent and must be established by competent evidence pursuant to Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2), we must undertake analysis of the evidence adduced at trial to determine whether Respondent may rely on a priority date earlier than the filing date of the underlying application. For efficiency and judicial economy, we will make these determinations together, considering all of the evidence of record. A. Respondent’s priority In addition to the trial evidence mentioned above, Respondent submitted the following exhibits in support of its pre-trial motion to amend the dates of use in the subject registration:34  Declaration of Austin Arnett (1st Arnett Decl.), a Senior Manager of Respondent, and exhibits thereto comprising Google Play Console statistics for a game app named “Plumber: Reloaded” (Exhibit AA) and screen shot, revenue, and download estimates of a game app named “A Plumber’s Job” (Exhibit BB);35  Supplemental disclosures made on September 19, 2019, comprised of screen shots of webpages relating to the Plumber: Reloaded app (Exhibit A) and 34 Petitioner objected to all of the evidence accompanying Respondent’s motion to amend, and to those portions of the 1st Arnett declaration which are based on or related to the accompanying exhibits. See 28 TTABVUE 12; 37 TTABVUE 21-22. As with its objections to trial evidence discussed earlier, we deem Petitioner’s objections to the motion evidence moot because, even considering all of the evidence of record, we find that Respondent failed to demonstrate by clear and convincing evidence that it is entitled to amend or rely on the earlier use dates asserted. 35 27 TTABVUE 4-10 (declaration), 11-14 (Exhibit AA), 15-17 (Exhibit BB). Cancellation No. 92068596 - 14 - screen shots of webpages relating to various other Plumber-formative game apps (Exhibit B);36 and Petitioner submitted the following exhibits in opposition to the motion:  Declaration of Michael J. Hoisington, counsel for Petitioner, and exhibits thereto comprising Respondent’s answer to the amended petition for cancellation and responses to various interrogatories (Exhibit A), screenshots from third-party websites including Google Play and App Store relating to game apps provided by Respondent (Exhibit B), and various of Respondent’s revised responses to interrogatories and document requests, along with all documents produced by Respondent during the discovery period (Exhibit C).37 Under Section 7(e) of the Trademark Act, 15 U.S.C. § 1057(e), a registration may be amended “for good cause.” When a registrant seeks “to prove a date of first use earlier than the date alleged in its application for registration . . . , its proof of that earlier date must be ‘clear and convincing.”’ Bass Pro Trademarks LLC v. Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1855-56 (TTAB 2008) (citing Hydro- Dynamics Inc. v. George Putnam & Co., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987)). The standard is the same whether a party moves to amend its registration or seeks to rely at trial on dates of use earlier than those in the registration. See TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1102 n.38 (TTAB 2019) (“To prove a date of first use of a mark that is earlier than the date stated in an application, the applicant must provide clear and convincing evidence.”); Cont’l Gummi-Werke AG v. 36 27 TTABVUE 18-20 (supplemental disclosures), 21-72 (Exhibit A, Bates Numbered 2-52), 73-90 (Exhibit B, Bates Numbered 54-70). 37 28 TTABVUE 84-85 (declaration), 14-21 (Exhibit A), 22-36 (Exhibit B), 37-83 (Exhibit C). Cancellation No. 92068596 - 15 - Cont’l Seal Corp., 222 USPQ 822, 825 n.4 (TTAB 1984) (“[A]n amendment to a registration to claim earlier dates of first use amount[s] to an enlargement of registrant’s rights in view of the ‘heavy burden of proof’ required of a party attempting to establish a date of first use prior to that stated in its registration. . . . [A] party who seeks to show an earlier date of use than that claimed in its application or registration is under a ‘heavy burden’ in that the proof must be clear and convincing . . . .”). This is a “heavier burden” than a preponderance of the evidence and “requires enhanced substantiation,” because an earlier date of first use than that alleged in the application is “a change of position from one ‘considered to have been made against interest at the time of filing the application.’” Hydro-Dynamics, 1 USPQ2d at 1773- 74 (quoting Stanspec Co. v. Am. Chain & Cable Co., 531 F.2d 563, 567, 189 USPQ 420, 424 (CCPA 1976)). Clear and convincing proof may consist of declaration testimony, if it is sufficiently probative. Such testimony should not be characterized by contradictions, inconsistencies, or indefiniteness, but should carry with it conviction of its accuracy and applicability. Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1036 (TTAB 2010) (a party “is entitled to prove an earlier date of use than the date alleged in its application, but its proof must be clear and convincing and must not be characterized by contradiction, inconsistencies or indefiniteness.”). It is well established that “testimony given long after the event, while entitled to consideration, should be carefully scrutinized . . . .” Elder Mfg. Co. v. Int’l Shoe Co., 194 F.2d 114, 92 USPQ 330, 333 (CCPA 1952). “[T]estimony is obviously strengthened by Cancellation No. 92068596 - 16 - corroborative documentary evidence.” Id. See also Exec. Coach Builders, 123 USPQ2d at 1184. Respondent’s first motion to amend was denied as insufficiently specific because Respondent did not specify whether the June 12, 2012 “first use date” claimed therein was the date of first use anywhere, the date of first use in commerce, or both.38 While Respondent’s second motion to amend clearly specified February 23, 2012 as the purported date of first use anywhere, and June 12, 2012 as the purported date of first use in commerce,39 Respondent’s main brief on the case concludes with “Respondent’s claim to a June 2012 first use in commerce date and first use anywhere date.”40 It is amazing that for the central issue in this proceeding – the question of priority – Respondent references its priority date so carelessly throughout its filings. Because Respondent’s main brief and the 1st and 2nd Arnett declarations appear to focus on June 12, 2012 as the priority date upon which Respondent relies in this proceeding (associated with the Plumber: Reloaded game app for Android devices), we scrutinize the evidence to determine if Respondent has demonstrated by clear and convincing evidence that it is entitled to a June 12, 2012 priority date. Before doing so, however, we address Respondent’s date of first use anywhere. 38 26 TTABVUE 7. “When asserting use of a mark in commerce in a trademark . . . application, an applicant must specify the date of first use anywhere and the date of first use in commerce . . . .” TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 903 (July 2021). 39 27 TTABVUE 2. 40 38 TTABVUE 27. Cancellation No. 92068596 - 17 - 1. Date of first use anywhere To the extent Respondent moved to amend the date of first use anywhere of the mark PLUMBER to February 23, 2012, based on game apps named “A Plumbers Job” and “A Plumbers Job Lite,” the motion is denied. Respondent’s second motion to amend “clarifies that the first use anywhere date for PLUMBER of February 23, 2012 [is] from sales and marketing of A Plumbers Job Lite.”41 However, according to Mr. Arnett, A Plumbers Job Lite was not released until March 14, 2012.42 Instead, he testified that it was an app named “A Plumbers Job” which was released on February 23, 2012. The motion and testimony are inconsistent about the app on which Respondent relies for the date of first use anywhere. Respondent’s main brief on the case is similarly unhelpful, only parroting, in a footnote, from the 2nd Arnett declaration that the release date for A Plumbers Job was February 23, 2012, and the release date for A Plumbers Job Lite was March 14, 2012.43 There is no affirmative and substantive discussion in the brief of the date of first use anywhere – only an ambiguous reference to February 23, 2012 “due to [Respondent’s] accidental listing of the wrong dates of first use for its trademark.”44 The incomplete App Store preview page submitted in support of A Plumbers Job Lite does not mention February 23, 2012.45 Even if it did, the App Store preview page 41 27 TTABVUE 2. 42 36 TTABVUE 2 (2nd Arnett Decl. ¶ 3). 43 28 TTABVUE 6 n.7. 44 38 TTABVUE 26. 45 27 TTABVUE 7 (1st Arnett Decl. ¶ 12), 74-75 (Exhibit B, Bates Nos. 54-55) Cancellation No. 92068596 - 18 - would not be competent evidence to establish the date of the app’s release. As with much of the evidence that Respondent relies on in this proceeding, the App Store preview page is merely hearsay under Fed. R. Evid. 802. We remind Respondent of the Board’s decision in WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1039 (TTAB 2018), where the Board reiterated the rule set forth in Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1040 (TTAB 2010) that “Internet evidence is only admissible for what it shows on its face, and because it does not fall within an exception to the hearsay rule, will not be considered to prove the truth of any matter stated therein.” WeaponX, 126 USPQ2d at 1041 (citing Safer, 94 USPQ2d at 1040). One of the two pages of documentary evidence submitted in support of A Plumbers Job does mention February 23, 2012.46 Putting aside the fact that there is no testimony explaining the source or veracity of this page,47 we note that the header on that page is “A Plumbers Job – Revenue & Download estimates – Apple App Store – Russia,” and the body of the page mentions the “Country Release Date” and “Worldwide Release Date” as “02/23/2012.” This is hearsay. WeaponX, 126 USPQ2d at 1041. Even if it were admissible it would be unhelpful. We have no testimony from the original developer of the A Plumbers Job app as to whether he owned any mark 46 27 TTABVUE 17 (Exhibit BB). 47 The only reference to the two pages of evidence (i.e., Exhibit BB) is in ¶ 13 of the 1st Arnett Decl. (“A previous paid version, A Plumber’s Job, was released on February 23, 2012. See Exhibit BB for the data on this app. This app is no longer available.”). The URLs for these pages have not been explained, and notwithstanding the header on the second page, do not appear to be from Apple. Cancellation No. 92068596 - 19 - associated with the game at that time, or how the mark was used. Respondent introduced an image of what might be a splash page for the game; but, we cannot rely on this because there is no testimony or other explanation as to what the image is or from where it came. We must make inference upon inference, or even inference upon guesses, to figure out what Respondent is attempting to demonstrate. This falls far short of the high, clear and convincing standard required of Respondent. Even putting aside all of the issues just discussed, the evidence of record is not competent to show Respondent’s date of first use of the mark PLUMBER for mobile game software. A date of first use anywhere is the date when the goods were first sold under the mark. See TMEP § 903.01. The mark at issue is PLUMBER, and Respondent’s evidence, even under the most generous interpretation, does not show use of PLUMBER as a mark used on the A Plumbers Job app, as of February 23, 2012, or any date; the record shows different marks: A PLUMBERS JOB or A PLUMBERS JOB WITH FREDDY.48 These marks are different and not the registered mark PLUMBER which is at issue here. See In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1347, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001) (“A mark is the legal equivalent of another if it creates the same, continuing commercial impression such that the consumer would consider them both the same mark.”). Moreover, Respondent did not plead tacking, see, e.g., Van Dyne-Crotty, Inc. v. Wear- Guard Corp., 926 F.2d 1156, 1159, 17 USPQ2d 1866, 1868 (Fed. Cir. 1991) (regarding the concept of “tacking” with reference to prior use of a legally equivalent mark), and 48 27 TTABVUE 7-8 (1st Arnett Decl. ¶ 13), 15-17 (Exhibit BB). Cancellation No. 92068596 - 20 - H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1720 (TTAB 2008) (attempt to tack denied because it was not pleaded, adverse party not put on notice of attempt to prove priority through tacking), and even if it had so pleaded, we would find that Respondent is not able to tack on use of such different marks (i.e., A PLUMBERS JOB and A PLUMBERS JOB WITH FREDDY) for the mark at issue (i.e., PLUMBER). The inadequate evidence by itself, let alone when accompanied by inconsistent argument, requires that we deny Respondent’s motion to amend the date of first use anywhere. 2. Date of first use in commerce We now turn to the crux of Respondent’s priority. The motion to amend seeks to “establish . . . an amended earlier first use in commerce date as early as June 12, 2012 from sales and marketing of” a game app named “Plumber: Reloaded.”49 Neither the motion nor the 1st Arnett declaration offers an explanation as to why the June 12, 2012 date was not alleged in the application underlying the registration. That information is eventually offered in the 2nd Arnett declaration (and later in the main brief) – the Plumber: Reloaded mobile game app “was acquired by Respondent after the subject application/registration was filed and was not included in the first use data claimed in the application.”50 49 27 TTABVUE 2. 50 36 TTABVUE 4 (2nd Arnett Decl. ¶ 10). This explanation stands in contrast to the explanation given in the answer to the amended petition, where Respondent stated that it filed the application without the assistance of an attorney and “mistakenly” listed its dates of use. 7 TTABVUE 3. This begs the question: how could the dates have been mistakenly listed if Respondent did not acquire the apps it now relies upon until well after registration? This is just one example of the dubious explanations Respondent has given during this proceeding. See purported May 24, 2018 assignments of A Plumbers Job and Plumber: Cancellation No. 92068596 - 21 - As the primary basis for requesting amendment to and reliance at trial on the June 12, 2012 date, Mr. Arnett testified that Respondent currently owns a large number of different PLUMBER apps, including Plumber: Reloaded which was released on June 12, 2012, and was acquired by Respondent from an unnamed predecessor-in-interest after the application underlying its registration was filed.51 Conspicuously missing from the testimony is how Petitioner acquired Plumber: Reloaded. That is, there is no direct testimony as to whom developed the original app and when Respondent succeeded to the original owner’s rights; but, there is indirect evidence on this. In its main brief on the case, Respondent mentions, for the first time, that Plumber: Reloaded was developed by Rudolf Halmi.52 The first mention of Mr. Halmi is in Respondent’s discussion of an Apps400 game review of Plumber: Reloaded which was attached as Exhibit E to the 2nd Arnett declaration.53 The brief later mentions that the Plumber: Reloaded app actually had “two developers. Rudolf Halmi who transferred two Google Play games (Android) that were created on or around June 25, 2012 and transferred to App Business Ventures LLC on May 24, 2018[,] and Joanna Polack [who] developed . . . and published the game on iTunes (iOS) on Reloaded apps at 36 TTABVUE 68-70; that is one day after this cancellation proceeding was filed, and almost a year after the registration issued. 51 2nd Arnett Decl. ¶¶ 2, 3, 10 (36 TTABVUE 2-3, 4). Accord, 1st Arnett Decl. ¶¶ 5, 9 (27 TTABVUE 5, 6). 52 38 TTABVUE 6. 53 See Brief, p. 5 (38 TTABVUE 6), and Exhibit E (36 TTABVUE 27-32). Cancellation No. 92068596 - 22 - January 25, 2014 and transferred this game to Respondent on May 29, 2018. [The Plumber: Reloaded game] is offered by App Holdings (aka Respondent).”54 Of course the Apps400 review is hearsay, WeaponX, 126 USPQ2d at 1041, and “[a]ttorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1371 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). Nonetheless, to understand what Respondent is arguing, we turn to the 2nd Arnett declaration and two Software Sales Agreements submitted therewith. In paragraph 25 of the 2nd Arnett declaration, Mr. Arnett states: 25. I certify by testimony and by the evidence attached to this trial testimony in Exhibit J that App Business Ventures, LLC is the true owner of all of the apps [including Plumber: Reloaded] listed in paragraph 3. Specific assignment documents have been obtained or recently located from the predecessor-in-interest sellers dealing with the specific apps [including Plumber: Reloaded] that Respondent is using to show its earliest priority dates.55 Exhibit J includes two Software Sales Agreements related to Plumber: Reloaded, one with Rudolf Halmi (for Android), and one with Joanna Polak (for iOS).56 Because it is 54 38 TTABVUE 17. 55 36 TTABVUE 8. 56 See 36 TTABVUE 69 (Polak agreement) and 70 (Halmi agreement). As noted earlier, we decline to determine whether Respondent should be estopped from relying on certain evidence because, even considering all of the evidence, Respondent has not met its burden. Were we to determine Petitioner’s objections, these software sales agreements may have been excluded from consideration. See Panda Travel, Inc. v. Resort Option Enters., Inc., 94 USPQ2d 1789, 1792-93 (TTAB 2009) (documents not produced until after the start of trial stricken). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) §§ 408.02 & 527.01(e) (2021). Cancellation No. 92068596 - 23 - on the Android version of the game that Respondent relies for its June 12, 2012 priority date, we examine the Halmi agreement first, reproduced below:57 Software Sales Agreement This software sales agreement is made on 24 May, 2018 between [Respondent] (hereafter “Buyer”) and Rudolf Halmi . . . .[(]hereafter “Seller”). Background Seller has created the application Plumber: Reloaded and published the application on or around June 25, 2012 and wishes to sell this work to the Buyer. Buyer wishes to buy this work from the Seller. Seller Disclosures Seller affirms that he is the original creator of the application and owns all rights to the graphics, copyrights, source code, and other IP associated with the application. Assets Included Seller with transfer the following applications on the Google Play app store: [two URLs at https://play.google.come/store/apps] to the Buyer’s accounts. Published apps on any other platforms such as Amazon or Windows shall be transferred on a best effort basis or considered published on behalf of the Buyer. Seller has licensed the Plumber Reloaded game for porting to iOS to a friend and the rights to the iOS version and port is owned by said friend of the Seller’s is not included in this agreement. Any associated copyrights to graphics, source code, social media assets, third party licenses to any SDKs, trademarks, and other IP. Purchase Price Buyer will remit payment of $300 to Seller for the above items. [signature] [/Halmi/] Buyer Seller 57 36 TTABVUE 70. Cancellation No. 92068596 - 24 - We have no evidence as to who signed the agreement on behalf of Respondent, and Respondent curiously did not introduce testimony from a witness with personal knowledge of Mr. Halmi’s purported ownership of the game app or his prior use of the mark PLUMBER, and did not provide a reason why this was not possible. Similarly, inasmuch as the statements in the Software Sales Agreement were not subject to cross-examination, they cannot be given the same weight and are not the equivalent of clear and convincing testimony, i.e., testimony from a witness with personal knowledge of Mr. Halmi’s development of an app and use of a mark associated therewith in June 2012. Cf. Powermatics, Inc. v. Glebe Roofing Prods. Co., 341 F.2d 127, 144 USPQ 430 (CCPA 1965) (oral testimony, if “sufficiently probative,” may be sufficient to prove priority); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB 2007). Nonetheless, we note that the date of publication of the Plumber: Reloaded app alleged in the agreement is “on or around June 25, 2012.” This is inconsistent with the June 12, 2012 date that Respondent is attempting to establish. Moreover, given the importance of priority in this proceeding and the fact that the Software Sales Agreement was executed after Respondent obtained a registration for the mark PLUMBER and even after Petitioner filed its petition to cancel the registration, the thirteen-day discrepancy in the two dates of the app’s publication is significant, and it was incumbent upon Respondent to make an adequate showing that the common law rights it was attempting to acquire existed as of June 12, 2012. Although the Halmi agreement discloses that Mr. Halmi licensed the game for porting to iOS to a friend, the Polak agreement states that Ms. Polak “owns all rights Cancellation No. 92068596 - 25 - to the graphics, copyrights, source code, and other IP associated with the application,” apparently including “[a]ny associated copyrights to graphics, source code, social media assets, third party licenses to any SDKs, trademarks, and other IP.”58 On their face, these two agreements appear inconsistent. We must first presume that Ms. Polak is the friend to whom Mr. Halmi licensed the game for porting to iOS, and then ask how she can be the owner of the trademark associated with Plumber: Reloaded if she is merely a licensee. See, e.g., Marcon Ltd. v. Avon Prods. Inc., 4 USPQ2d 1474, 1477 (TTAB 1987) (“[A] licensee is not the owner of a mark . . . .”). The record exhibits other unanswered questions about the relationship between Respondent and other non-parties to this proceeding. Although Respondent claims to own Plumber: Reloaded, the “[c]urrent views of what iOS and Android gamers see before downloading [Plumber: Reloaded]”59 indicate that there may be other owners of the games. The App Store Preview page refers to “AppForge Inc.” as the seller with a copyright held by “Skeemba,”60 and the Google Play version indicates that “[t]his app and all rights are owned by App Holdings.”61 Focusing again on the Android version, while the contents of the Google Play page is hearsay and cannot be taken for the truth of the matters therein, it nonetheless shows on its face that a different entity, not shown to be Respondent, may be the owner of Plumber: Reloaded. This contradicts and is inconsistent with Mr. Arnett’s testimony. 58 36 TTABVUE 69. 59 2nd Arnett Decl. ¶ 2, introducing Exhibit A. 60 36 TTABVUE 12. 61 36 TTABVUE 13. Cancellation No. 92068596 - 26 - In an attempt to argue away this contradiction, in its main brief Respondent states that “Respondent’s use of the seller name App Holdings is entirely irrelevant to this proceeding”62 and attempts to deflect the issue by arguing that it was not on “notice that ownership was an issue” in this proceeding.63 Notwithstanding the flimsy argument, and apparently realizing that its supporting documentary evidence contradicts and undercuts Mr. Arnett’s testimony as to ownership of the Plumber: Reloaded app, Respondent pivots to argue that it “effectively identified App Holdings when it filed” the specimen of use in the application underlying the registration because therein App Holdings is mentioned.64 Respondent goes on with additional arguments and states that “Petitioner has always had evidence right in front of [it] that App Holdings is a game seller for Respondent [and that a]ny doubt . . . as to ownership could have been a subject of cross examination and was not.”65 However, because Respondent is attempting to establish a date of first use of the mark in commerce earlier than the date listed in its registration, it is Respondent’s burden to adduce clear and convincing evidence – not Petitioner’s responsibility. Petitioner is correct to point out the inconsistencies in the evidence and the failure of Respondent to introduce other evidence that would explain the discrepancies.66 62 38 TTABVUE 14. 63 38 TTABVUE 16. 64 38 TTABVUE 16. See also Petitioner’s Notice of Reliance Exhibit 4 (33 TTABVUE 3, 85- 86), and 2nd Arnett Decl. Exhibit G (36 TTABVUE 6-7, 39-41). 65 38 TTABVUE 16. 66 The Google Play preview document is not the only place App Holdings appears in association with the Android version of Plumber: Reloaded. It is also listed as the developer Cancellation No. 92068596 - 27 - Based on the evidence as a whole, we find that Respondent’s failure to adduce direct testimony from a witness with personal knowledge of Mr. Halmi’s development of Plumber: Reloaded and use of a mark associated therewith as of June 12, 2012, the inconsistent June 25, 2012 date within the sales agreement, accompanied by ownership questions raised due to the inconsistencies and contradictions presented by the documents purporting to support the 1st and 2nd Arnett declarations, requires that we deny Respondent’s motion to amend the date of first use in commerce to June 12, 2012. We reiterate that Respondent’s evidentiary burden on this motion was clear and convincing. The record, consisting of inconsistent and incomplete evidence, as well as hearsay, and requiring that we make inference upon inference, does not rise to that level. After reviewing all of the evidentiary pieces and looking at the evidence as a whole, see W. Fla. Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994), we find that Respondent has failed to show by clear and convincing evidence that it used its mark for its identified goods as of June 12, 2012. Accordingly, the motion to amend is denied, and we find that Respondent may rely only on its constructive use date (i.e., the filing date of its underlying application on January 2, 2017) for purposes of establishing Respondent’s priority. Kemi Organics v. Gupta, 126 USPQ2d at 1604. in the appbrain.com evidence, described as “another third-party dashboard” and introduced as Exhibit D to the 2nd Arnett declaration. See 36 TTABVUE 4, 22-26. Cancellation No. 92068596 - 28 - B. Petitioner’s priority If Petitioner cannot prove that it used the designation PLUMBER as a trademark before the January 2, 2017 filing date of Respondent’s underlying application, Petitioner cannot establish priority. See Exec. Coach Builders, 123 USPQ2d at 1180. Cf. Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002); Otto Roth, 209 USPQ at 43. Because Petitioner is asserting common- law rights, “the decision as to [Petitioner’s] priority is made in accordance with the preponderance of the evidence.” Hydro-Dynamics v. George Putnam & Co., 1 USPQ2d at 1773; see also Standard Knitting Ltd. v. Toyota Jidosha K.K., 11 USPQ2d 1917, 1929 (TTAB 2006) (burden of establishing priority based on common law rights is by a preponderance of the evidence). Petitioner must establish priority by competent evidence of its alleged prior common law use in the United States of its PLUMBER mark. See First Niagara Ins. Brokers v. First Niagara Fin. Grp., 81 USPQ2d at 1378; Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022 (TTAB 2009). In considering the testimony and evidence of priority, “we look at the evidence as a whole, as if each piece of evidence were part of a puzzle which when fitted together, establishes prior use.” W. Fla. Seafood v. Jet Rests., 31 USPQ2d at 1663. Petitioner’s witness Mr. Robles testified that “Petitioner first publicly used the term PLUMBER as the name of its game app at least as early as June 15, 2012, and it has continuously used the term PLUMBER in the United States since that time Cancellation No. 92068596 - 29 - with its game apps.”67 This is a clear statement that Petitioner has used PLUMBER for game apps in the U.S. since June 15, 2012. To support the June 15, 2012 date, Petitioner submitted, inter alia, an image taken from a June 15, 2012 YouTube video showing use of PLUMBER on Petitioner’s mobile game app open on a tablet device.68 In an attempt to minimize this evidence and imply that it does not demonstrate use of the mark in the U.S., Respondent asked Mr. Robles whether all of the 3,149,244 views of the YouTube video were limited to viewers in the U.S. – they are not.69 However, it is not important that the number of views were not made solely from the U.S.; the image was offered to show on its face that Petitioner used the mark PLUMBER on a mobile game app, and it accomplishes this by showing the game open on a tablet device with PLUMBER in a large, stylized font and used as the name of the game on the device. The image was not offered to demonstrate that more than three million people have watched Petitioner’s video; rather, it demonstrates that as of June 15, 2012, the date the video was added to YouTube, Petitioner used PLUMBER as the name of its game app.70 Petitioner also included a “true and correct copy” of its “web site in 2012 showing the addition of Petitioner’s Plumber app to Petitioner’s game repertoire.”71 The web site image is a Wayback Machine archival capture and it was accompanied by 67 Robles Dec. ¶ 7 (32 TTABVUE 4). 68 Robles Dec. ¶ 7 and Exhibit C (32 TTABVUE 4, 14). 69 Robles Cross-Exam ¶ 10 (35 TTABVUE 4). 70 “These images are examples of how Petitioner uses the term ‘plumber’ with its game apps.” Robles Decl. ¶ 8 (32 TTABVUE 4). 71 Robles Decl. ¶ 7, Exhibit C (32 TTABVUE 4, 17). Cancellation No. 92068596 - 30 - Petitioner’s testimony explaining that it correctly represents what was contained on Petitioner’s web page in 2012. The image shows that Petitioner listed as a “milestone” in June 2012 that its game PLUMBER was an “[o]vernight success, getting to #1 spot in Game Category in less than 30 days.”72 This June 2012 image corroborates Petitioner’s release of its PLUMBER game at least as early as June 2012. Cf. Coca- Cola Co. v. Meenaxi Enter., Inc., 2021 USPQ2d 709, at *12-13 (TTAB 2021) (Wayback Machine evidence offered solely under a notice of reliance without accompanying testimony generally admissible only for what it shows on its face). Further corroborating Petitioner’s use and priority, Mr. Robles also testified that the Google Play page attached to his declaration, which shows Petitioner’s mark as , demonstrates “Petitioner’s continuous and uninterrupted use of Plumber from June 15, 2012 until the present with Petitioner’s game apps” and also demonstrates “how Petitioner uses the term ‘plumber’ with its game apps.”73 Respondent argues that “Petitioner has submitted extremely little evidence of its alleged global sales and absolutely no evidence that is limited to the US.”74 However, Mr. Robles distinguishes the June 15, 2012 use of the mark from an earlier use (in May 2012) with a Beta version of the game released only in France.75 We find, when considering the testimony and evidence of record as a whole, see W. Fla. Seafood v. 72 32 TTABVUE 17 (WaybackMachine) 73 Robles Decl. ¶ 7, Exhibit C (32 TTABVUE 4, 15). 74 38 TTABVUE 19. 75 See Robles Dec. ¶ 6 (32 TTABVUE 4). Cancellation No. 92068596 - 31 - Jet Rests., 31 USPQ2d at 1663, that it fits together to demonstrate Petitioner’s use of PLUMBER (in the form of ) for game apps in the U.S. as of June 15, 2012. As noted above, Petitioner must have proprietary rights in its PLUMBER mark to prevail on its likelihood of confusion claim. “[E]ven though something is used as a trademark, if it is not distinctive, the user does not have a trademark because he has no existing trademark rights.” Otto Roth, 209 USPQ at 43. Thus, we turn to Respondent’s arguments that Petitioner neither argued nor proved that the mark PLUMBER is inherently distinctive,76 and that specific facts of use leading to acquired distinctiveness or secondary meaning of Petitioner’s use of PLUMBER was necessary for Petitioner to obtain priority.77 Respondent concludes that its own registration on the Principal Register without a claim of acquired distinctiveness establishes that Respondent has priority in this proceeding.78 It appears that Respondent argues that the term PLUMBER is merely descriptive when Petitioner uses it to identify mobile game apps but it is not merely descriptive when Respondent uses it to identify those same goods.79 Respondent registered PLUMBER on the Principal Register without a claim to acquired distinctiveness under Section 2(f). Thus, we must and do accord 76 Petitioner pleaded that its “PLUMBER trademark is inherently distinctive and/or has acquired distinctiveness over the past six (6) years as used with its goods.” Amended Petition for Cancellation ¶ 3 (6 TTABVUE 2). 77 38 TTABVUE 19. 78 38 TTABVUE 20. 79 To be clear, we are concerned at this point only with the question of whether Petitioner’s common law mark is distinctive for purposes of priority. We are not discussing Petitioner’s alternative ground for cancellation that the term PLUMBER is merely descriptive of Respondent’s goods. Cancellation No. 92068596 - 32 - Respondent’s PLUMBER registration all applicable probative value, including as prima facie evidence that the registered mark is valid under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), and in the absence of a claim of acquired distinctiveness, that the term PLUMBER is inherently distinctive. See Cold War Museum Inc. v. Cold War Air Museum Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009) (presumption of validity of registration includes presumption of distinctiveness); Tea Bd. of India v. The Republic of Tea, Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). See also 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:43 (5th ed. 2021 Update) (noting that “when the USPTO registers a mark without requiring evidence of secondary meaning (‘acquired distinctiveness’), it is presumed to be inherently distinctive.”). Respondent provides no explanation for the distinctiveness discrepancy that it argues exists between the parties’ uses of PLUMBER for identical goods, but implicit is that whether Respondent’s mark is descriptive is not at issue here because it is presumed to be distinctive, and Petitioner must affirmatively demonstrate that its pleaded common law mark is distinctive, either inherently or through acquired distinctiveness. The Court of Appeals for the Federal Circuit has recognized that while Respondent’s contrary position regarding the conceptual or inherent strength of its mark vis-à-vis Petitioner’s mark when used on the same goods may not constitute an estoppel, it does have significance as facts “illuminative of shade and tone in the total picture confronting the decision maker.” Juice Generation, Inc. v. GS Enter. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (quoting Cancellation No. 92068596 - 33 - Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 153 (CCPA 1978)). See also Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (“A party’s prior arguments may be considered as ‘illuminative of shade and tone in the total picture,’ but do not alter the Board’s obligation to reach its own conclusion on the record.”). “To that extent, a party’s earlier contrary opinion may be considered relevant and competent.” Interstate Brands, 198 USPQ at 153. Respondent’s registration of PLUMBER on the Principal Register without a claim of acquired distinctiveness, while not dispositive, supports Petitioner’s position that the term PLUMBER is inherently distinctive, not merely descriptive. Respondent introduced the definition of PLUMBER from MERRIAM-WEBSTER as 1: a dealer or worker in lead 2: one who installs, repairs, and maintains piping, fittings, and fixtures involved in the distribution and use of water in a building 3: a person whose job is to prevent or put an end to leaks of sensitive information.80 “A mark is merely descriptive if it immediately conveys information concerning a feature, quality, or characteristic of the goods or services for which registration is sought.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1373 (Fed. Cir. 2018) (quoting In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017)). When we consider the mark PLUMBER in the context of the goods at issue, see DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 80 2nd Arnett Decl., 36 TTABVUE 3 n.2 (from merriam-webster.com/dictionary/plumber). Cancellation No. 92068596 - 34 - F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012), we do not find PLUMBER to be merely descriptive of mobile game apps. Instead, when “we evaluate its intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-arbitrary (or fanciful) continuum,” In re Davia, 110 USPQ2d 1810, 1815 (TTAB 2014), we find that it is suggestive of the pipe-like graphics used to indicate the lines connecting various pairs in the parties’ Numberlink-type games. As a visual aid, we reproduce below images of a Numberlink game and one mobile game app that each party claims as its own: 81 82 83. As can be seen from the images, the pipes are suggestive of plumbing, and by extension, a plumber. This is supported by the description accompanying the last game on Google Play: “As a Plumber you have to connect color pipes so the fluids can flow without crossing paths. . . . Goal of game is to connect every two elements of the same color with pipes, so the water can flow.”84 81 36 TTABVUE 17 (from Wikipedia). 82 32 TTABVUE 15 (Petitioner). 83 36 TTABVUE 13 (Respondent). 84 36 TTABVUE 13 (play.google.com/store/apps/details?id=sk.halmi.plumber). Cancellation No. 92068596 - 35 - A mark is suggestive rather than merely descriptive if it requires imagination, thought, and perception on the part of someone who knows what the goods are to reach a conclusion about their nature from the mark. See, e.g., In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1515 (TTAB 2016). That is the case here. Accordingly, as a suggestive mark, PLUMBER is inherently distinctive as used with mobile game apps and, thus, presumed to designate origin. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1685 (Fed. Cir. 2010) (“[I]f the mark is inherently distinctive, it is presumed that consumers will view it as a source identifier.”); Cicena Ltd. v. Columbia Tele. Grp., 900 F.2d 1546, 14 USPQ2d 1401, 1405 n.5 (Fed. Cir. 1990). See also Maytag Co. v. Luskin’s, Inc., 228 USPQ 747, 750 (TTAB 1986) (“there is nothing in our trademark law which prescribes any different protection for suggestive, nondescriptive marks than that which is accorded arbitrary and fanciful marks”); In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“the fact that a mark may be somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a limited scope of protection”). In view thereof, we find that Petitioner has established a priority date of June 15, 2012 for mobile game applications. VI. Likelihood of Confusion Our determination under Trademark Act Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Cancellation No. 92068596 - 36 - Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). While we have considered each DuPont factor for which there is substantive argument and evidence of record, see In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019), the two key considerations in this case are the similarities between the marks and the similarities between the goods, the first two DuPont factors. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus . . . on dispositive factors, such as similarity of the marks and relatedness of the goods”’) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 64 USPQ2d at 1380)). Petitioner argues that “[t]he [p]arties use the exact same term with the exact same goods – game apps – directed at the same consumers in the same channels of trade.”85 Quoting Professor McCarthy, Petitioner argues that this is an “open and shut” case.86 85 37 TTABVUE 14. 86 37 TTABVUE 13. While Petitioner quotes a section of MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION that relates to “infringement,” it is obvious that Petitioner’s arguments relate to the ground of likelihood of confusion. We decline to grant Respondent’s request to strike Petitioner’s arguments. See 38 TTABVUE 18. As Respondent acknowledges, this case stems from “a Google Infringement Notice.” Id. See also Robles Dec. Exhibit D (32 TTABVUE 18-21), containing the Infringement Notice based on the subject registration. Cancellation No. 92068596 - 37 - It appears that Respondent does not dispute that there is a likelihood of confusion – only that Petitioner has not demonstrated priority.87 A. Similarity of the Goods and Channels of Trade The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration,” DuPont, 177 USPQ at 567; Stone Lion Capital Partners, 110 USPQ2d at 1159. In this case, Petitioner has demonstrated that Respondent’s goods, identified as “computer game software for use on mobile and cellular phones” in the registration, are identical to Petitioner’s common law mobile game applications, and Respondent does not argue otherwise. The third DuPont factor concerns “‘[t]he similarity or dissimilarity of established, likely-to-continue trade channels.”’ DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161. Petitioner contends that the parties’ goods are sold in the same channels of trade to the same consumers. There are no limitations as to channels of trade or classes of purchasers in the identification of goods in Respondent’s involved registration. It therefore is presumed that all of Respondent’s goods move in all channels of trade normal for those goods, and that they are available to all classes of purchasers for those goods. See Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987); Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340, 343 (TTAB 1983). Petitioner, however, does 87 38 TTABVUE 18-20. Cancellation No. 92068596 - 38 - not own a federal registration; as such, we cannot make any presumptions regarding channels of trade but must instead rely on the record evidence which demonstrates, in fact, that both parties distribute their game apps via at least two of the same platforms, i.e., the Google Play and Apple app stores. For example, the testimony of Mr. Robles states that Petitioner distributes its PLUMBER games “through the usual channels [such as] Google Play, Apple App Store, Amazon, and others,” and the testimony of Mr. Arnett states that Respondent’s “PLUMBER apps sell on Google Play (Android) and iTunes (iOS)” and that “Google Play[ is] one of our distributors. . . .”88 The parties’ exhibits corroborate their testimony and demonstrate overlapping trade channels.89 Accordingly, the second and third DuPont factors weigh in favor of likelihood of confusion. B. Similarity of the Marks We next consider the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression, See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005), the first DuPont factor. 177 USPQ at 567. We compare Petitioner’s common law mark with Registrant’s standard character mark PLUMBER. The marks have the same sound, connotation, and 88 Robles Dec. ¶ 9 (32 TTABVUE 4); 2nd Arnett Decl. ¶¶ 2, 6 (36 TTABVUE 2, 4). 89 See, e.g., 32 TTABVUE 15 (Petitioner’s games on Google Play), and 36 TTABVUE 13 (Respondent’s games on Google Play). Cancellation No. 92068596 - 39 - commercial impression. In addition, Although Petitioner has demonstrated use of its mark employing slight stylization and first-letter capitalization (i.e., as ), this is of little consequence because Respondent’s registered PLUMBER mark is in standard characters and we must therefore assume that Respondent’s mark may be presented in various font styles, colors, and sizes, including the use of upper and lower case lettering as used by Petitioner. See, e.g., Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1256 (Fed. Cir. 2011). Accordingly, the marks also have a similar appearance. In view thereof, the first DuPont factor also weighs in favor of likelihood of confusion. C. Conclusion on Likelihood of Confusion Because the marks, goods, channels of trade, and classes of purchasers are identical, we find that Respondent’s registered mark PLUMBER for “computer game software for use on mobile and cellular phones” is likely to cause confusion with Petitioner’s common law mark PLUMBER for mobile game applications. VII. Summary and Decision Respondent’s second motion to amend the dates of use in the registration is denied because the record does not show, by clear and convincing evidence, that Respondent is entitled to earlier dates of use. The record shows, by a preponderance of the evidence, that Petitioner has established a priority date of June 15, 2012 for mobile game applications. Cancellation No. 92068596 - 40 - The petition for cancellation is granted on the ground of priority and likelihood of confusion.90 90 Our conclusion on this ground is dispositive, so we need not reach the alternative claims. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1064 (TTAB 2017) (because each ground provides an independent basis to cancel Respondent’s registration, in the interest of judicial economy Board did not reach the remaining claims); Multisorb Techs., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013) (“[T]he Board’s determination of registrability does not require, in every instance, decision on every pleaded claim.”).