Pure Mix, LLCv.Green Living LLC

Trademark Trial and Appeal BoardJun 12, 2019

91229962 (T.T.A.B. Jun. 12, 2019)

This Opinion is Not a Precedent of the TTAB Mailed: June 12, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Pure Mix, LLC v. Green Living LLC _____ Opposition No. 91229962 _____ Lisa A. Kane of The Kane Law Group, for Pure Mix, LLC. Andrew C. Aitken of Aitken Law Offices, for Green Living LLC. _____ Before Adlin, Larkin, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: Green Living LLC (“Applicant”) seeks registration on the Principal Register of the mark ELECTROLYFT (in standard characters) for “energy drinks; non-alcoholic drinks, namely, energy shots; energy drinks enhanced with vitamins, minerals, nutrients, electrolytes,” in International Class 32.1 1 Application Serial No. 86934147 was filed on March 9, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. Opposition No. 91229962 - 2 - Pure Mix, LLC (“Opposer”) opposed registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when applied to Applicant’s goods, so resembles Opposer’s previously registered mark LYFT for “powder mixes for energy drinks; preparations and powders to be dissolved in liquid to produce an energy drink,”2 as to be likely to cause confusion. See Amended Notice of Opposition, 6 TTABVUE. Applicant filed an Answer denying the salient allegations of the Amended Notice of Opposition. Only Opposer filed a brief on the case. We dismiss the opposition for Opposer’s failure to prove its standing or priority. I. Evidentiary Issues On July 30, 2018, the final day of its reopened testimony period, counsel for Opposer filed a submission it identified as “Testimony for Plaintiff.” 16 TTABVUE. As best we can tell, the filing appears to be a mish-mash of a notice of reliance, statement of facts, and brief on the case, but not actual testimony. In addition to the ESTTA cover sheet labeled “Testimony for Plaintiff,” the filing comprises a four-page document titled “Trial and Introduction of Evidence,” 16 TTABVUE 2-5; and is accompanied by the following attachments which counsel describes as “documents, data compilations, and other tangible things that the Plaintiff offers as evidence”: two copies of a September 7, 2016 letter from counsel for Opposer to counsel for Applicant, id. at 7-8, an invoice dated April 8, 2018, id. at 9, 2 Registration No. 4389704, issued August 20, 2013. Opposition No. 91229962 - 3 - what appears to be two pages of an advertising brochure,3 id. at 10-11, a purchase order dated April 6, 2018, id. at 12, and what appears to be either an invoice or purchase order dated April 10, 2018. Id. at 13. The filing contains no testimony – just unsworn statements by counsel for Opposer. See Trademark Rules 2.122(g) (notices of reliance), and 2.123(a) and (3) (testimony by affidavit, declaration, deposition upon written questions, and oral depositions), 37 C.F.R. § 2.122(g), and 2.123(a) and (e). Such statements are not evidence. See Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 91 USPQ2d 1409, 1415 (Fed. Cir. 2009) (a party’s “unsworn attorney argument . . . is not evidence”) (citing Laitram Corp. v. Cambridge Wire Cloth Co., 919 F.2d 1579, 1583 (Fed. Cir. 1990) (criticizing parties’ “reliance on attorney argument and counsel’s unsworn fact statements as ‘evidence’”)); see also Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (citing Enzo Biochem, Inc. v. Gen-Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) (“Attorney argument is no substitute for evidence.”)). The filing also directs the reader to “[s]ee Federal Trademark filing,” “[s]ee attached sales reports and product cost,” and “[s]ee attached screen shot of website and option to purchase”; however, no trademark filings, sales reports, product costs, website, or option to purchase was attached to the filing. We cannot consider materials that were not submitted. To the extent the invoice, purchase order, or brochure was offered as sales reports, product costs, or the website, they will not be 3 It is possible that the brochure-like document could be screen shots of a web page; however, to the extent they are Internet materials, they are deficient because neither the date they were accessed nor their source was provided. See Trademark Rule 2.122 (e)(2). Opposition No. 91229962 - 4 - considered because none of the attachments is admissible by notice of reliance, see Trademark Rule 2.122(g), and there is no accompanying testimony describing or authenticating the attachments. Accordingly, neither the statements made in the filing nor the attachments thereto are in evidence.4 Inasmuch as the Board does not take judicial notice of applications or registrations residing in the Office, and therefore does not corroborate whether a pleaded prior registration or application is valid or owned by Opposer, the Board will not follow Opposer’s request to “[s]ee [its] Federal Trademark filings.”5 See Edom Labs Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012) (“Board does not take judicial notice of registrations or applications residing in the Office. . . .”); UMG Recordings Inc. v. O’Rourke, 92 USPQ2d 1042, 1046 (TTAB 2009) (“The Board does not take judicial notice of registrations that reside in the Patent and Trademark Office.”). If Opposer wished to rely on its pleaded registration and the registration that allegedly resulted from its pleaded application, it was incumbent upon Opposer to make them of record either with its pleading or during trial. See Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). 4 Opposer repeated verbatim into its brief on the case paragraphs 1-15 from its “Trial and Introduction of Evidence” filing, including the directives to “see” the same evidence, see 17 TTABVUE 3-4; however, no such documents were attached to the brief. Had they been attached to the brief, they would be untimely. See TBMP § 801.01 (2018) (“Evidence attached to the briefs will not be considered.”). 5 To the extent Opposer attempted to rely not only on judicial notice of its pleaded registration and the registration that allegedly resulted from its pleaded application, but also on the dates of first use listed therein, “[t]he allegation . . . in a registration of a date of use is not evidence on behalf of the . . . registrant; a date of use of a mark must be established by competent evidence.” Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2). Opposition No. 91229962 - 5 - Applicant did not submit any evidence or testimony. II. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the file of the subject application. As explained above, none of the statements or documents submitted by Opposer with its document titled “Trial and Introduction of Evidence” is in evidence. III. Standing and Priority Standing is a threshold issue that must be proven in every inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); See also Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024 , 213 USPQ 185, 189 (CCPA 1982) (“The facts regarding standing . . . must be affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely because of the allegations in its [pleading].”). To establish standing in an opposition, a plaintiff must demonstrate that it possesses a “real interest” beyond that of a mere intermeddler and a “reasonable basis for his belief of damage.” See Empresa Cubana Del Tabaco, 111 USPQ2d at 1062 (citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012). A “real interest” is a “direct and personal stake” in the outcome. Ritchie v. Simpson, 50 USPQ2d at 1026. A belief in likely damage can be shown by establishing a direct commercial interest. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Opposer, as plaintiff in this proceeding, must prove its standing (and its Opposition No. 91229962 - 6 - claims) by a preponderance of the evidence. See Cerveceria Centroamericana, S.A. v. Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989). Opposer never addresses the threshold standing requirement. In the Amended Notice of Opposition, Opposer alleged, inter alia, that: 1. The Opposer, Pure Mix, LLC sells an energy drink product under the Trademark [sic] PureLYFT and LYFT. 2. The Opposers [sic] filed a Section 1(a) Trademark Registration [sic] for the Mark PureLYFT on July 11, 2016, with an actual use date of 02/06/2013. 3. The Opposer owns the Federal Registration for the mark LYFT under U.S. Registration No. 4389704. 4. The Opposers [sic] Trademark, LYFT, is standard character, filed in Class 32 for “Powder mixes for energy drinks; preparations and powders to be dissolved in liquid to produce an energy drink.” Amended Notice of Opposition, paragraphs 1-4 (6 TTABVUE 3). Applicant answered these allegations with the following responses: [1.] Applicant lacks sufficient knowledge to admit or deny the allegations recited in paragraph 1 of the Notice of Opposition and therefore the allegation is Denied. [2.] Applicant admits that the records of the US Patent and Trademark Office reflect that an application was filed for the mark “PureLYFT[”] on July 11, 2016. With respect to other allegations, Applicant lacks sufficient knowledge to admit or deny the allegations recited in paragraph 2 of the Notice of Opposition and therefore the allegations are Denied. [3.] Applicant lacks sufficient knowledge to admit or deny the allegations recited in Paragraph 3 of the Notice of Opposition and therefore the allegation is Denied. [4.] Applicant admits that the trademark registration LYFT cited by Opposer is listed on the records of the US Patent and Trademark Office that reflect “Powder mixes Opposition No. 91229962 - 7 - for energy drinks; preparations and powders to be dissolved in liquid to produce an energy drink.” With respect to any other allegation in paragraph 4 of the Opposition, the Applicant lacks sufficient knowledge to admit or deny the allegations and therefore the allegation is Denied. Answer, paragraphs 1-4 (9 TTABVUE 2-3). In its brief, Opposer states that it “now owns” a registration for the mark PURELYFT. 17 TTABVUE 2. Presumably, this refers to the “Section 1(a) Trademark [application] for the Mark PureLYFT [filed] on July 11, 2016” which was pleaded in paragraph 2 of the Amended Notice of Opposition. See UMG Recordings, Inc. v. O’Rourke, 92 at 1045 n.12 (if a party pleads a pending application in the notice of opposition, it may make the resulting registration of record at trial without having to amend its pleading to assert reliance on the registration). However, as noted above, Opposer did not introduce either its pleaded registration or the registration that allegedly resulted from the pleaded application, and Applicant did not admit Opposer’s ownership or the status of the pleaded registration or the application underlying the alleged resulting second registration. Accordingly, neither registration is of record. Inasmuch as neither Opposer’s pleaded registration, nor second registration or the application underlying the second registration, is of record, Opposer presented no admissible testimony or other evidence, and Applicant did not admit Opposer’s standing or facts that might establish it, there is no record evidence to support Opposer’s real interest in this proceeding beyond that of a mere intermeddler, or any reasonable basis for its belief of damage. Ritchie v. Simpson, 50 USPQ2d at 1027. See Opposition No. 91229962 - 8 - also Compuclean Mktg. and Design v. Berkshire Prods. Inc., 1 USPQ2d 1323, 1326 (TTAB 1986) (Although “the opposer’s case, beyond the filing of an answer denying opposer’s allegations and standing, was essentially unopposed,” the record nonetheless fell “below threshold levels of proof on the standing issue under any viable criterion of ‘real interest’ . . . .”). IV. Priority Even if Opposer had proven standing (which it did not), it did not prove priority. Because neither the pleaded registration nor the registration that allegedly resulted from the pleaded application is of record, Opposer must prove prior common law rights by establishing that its marks are distinctive, inherently or otherwise, and that it has prior use of the marks as pleaded.6 Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1022-1023 (TTAB 2009) (citing Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981)). Unfortunately for Opposer, there is no record evidence that it owns or uses any common-law trademarks and no evidence of its priority of use. Even if we could view the invoice and purchase order attached to Opposer’s “Trial and Introduction of Evidence” document as admissible and competent evidence (which we cannot), the dates on the invoice and purchase order are from 2018. Applicant is entitled to rely without further proof upon the filing date of its application as a “constructive use” date for purposes of priority. See Trademark Act 6 Had opposer properly introduced its trademark registrations, the registrations themselves would have been sufficient to remove priority as an issue. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Opposition No. 91229962 - 9 - § 7(c) (contingent upon registration); Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009). The subject application was filed on March 9, 2016, well prior to the 2018 dates on Opposer’s invoice and purchase order. Because Opposer has not established priority through any registration it pleaded (but failed to make of record), or proven prior common law use of the pleaded marks, its Section 2(d) claim fails. V. Summary Opposer cannot prevail on its claim of likelihood of confusion because it submitted no evidence as to its standing or that it owns “a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States.” Trademark Act § 2(d). Because priority is an essential element of any claim under Section 2(d), we need not reach the issue of likelihood of confusion. See WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d 1034, 1041-42 (TTAB 2018); Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1199 (TTAB 2017). VI. Decision The opposition is dismissed for failure to prove standing or priority.