Sky Climber, LLCv.Kabushiki Kaisha Aichi Corporation

Trademark Trial and Appeal Board

Jan 10, 2014

No. 91193904 (T.T.A.B. Jan. 10, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
January 10, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Sky Climber, LLC
v.
Kabushiki Kaisha Aichi Corporation
_____

Opposition No. 91193904
_____

David J. Dawsey and Michael J. Gallagher, Gallagher & Dawsey Co. L.P.A., for Sky
Climber, LLC.

George W. Lewis and Philip L. O’Neill, Jacobson Holman PLLC, for Kabushiki
Kaisha Aichi Corporation.
_____

Before Mermelstein, Lykos, and Hightower, Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:

Applicant and Counterclaim Plaintiff Kabushiki Kaisha Aichi Corporation
(“Applicant”) has applied to register the mark SKYMASTER, in standard
characters, for the following goods:
loading and unloading machines; power operated boat
lifts; structural parts for loading-unloading machines;
lifting apparatus, namely, mechanical railed lifting
conveyors for load handling; cranes; concrete construction
machines; structural parts for concrete construction
machines, in International Class 7; and
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motor vehicles, namely, trucks, cars, vans; structural
parts of cars, motorcycles; trucks in the nature of lorries;
structural parts of trucks in the nature of lorries; trucks
featuring an aerial lift apparatus; motor vehicles, namely,
tractors featuring an aerial lift apparatus; structural
parts of motor vehicles, namely, trucks featuring an aerial
lift apparatus; vehicles featuring an aerial lift apparatus,
namely, fork lift trucks, in International Class 12.1
Opposer and Counterclaim Defendant Sky Climber, LLC (“Opposer”) opposes
registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting
a likelihood of confusion with its identical mark SKYMASTER, registered in
standard character form for “metal suspended scaffolding system, primarily
comprised of a work platform, motor-driven hoists, cables, and stackable mast
sections” in International Class 6.2
The parties agree that their marks are similar, their goods are related, and
that confusion is likely to result from the use of the marks on their identified goods.
However, applicant asserts that it has prior rights in the SKYMASTER mark in the
United States and, on that basis, has counterclaimed to cancel opposer’s
registration.
Opposer filed an opening brief and a brief constituting its reply and response
as counterclaim defendant. Applicant filed a combined brief in defense of the
opposition and as plaintiff in the counterclaim.

1 Application Serial No. 77269641, filed August 31, 2007, based on a bona fide intention to
use the mark in commerce pursuant to Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b).
2 Registration No. 3635778, issued June 9, 2009.
Opposition No. 91193904

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Evidentiary Issues
Each party objects to the admission into evidence of exhibits submitted as
attachments to the other party’s trial brief. The objections on this basis are
sustained. Exhibits attached to a party’s brief on the case can be given no
consideration unless they were properly made of record during the time for taking
testimony. Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1116
(TTAB 2009); Trademark Trial and Appeal Board Manual of Procedure (TBMP)
§ 704.05(b) (3d ed. rev. 2 June 2013). Accordingly, we will not consider Exhibit 2.F
to applicant’s brief, characterized as previously submitted images which have been
scanned at a higher resolution and printed in a different format; Exhibits 3 through
14 to opposer’s reply brief, which are printouts from third-party websites;3 or the
portions of the briefs that rely on those exhibits.
Opposer also argues that applicant’s sole witness, Kenjiro Nezuka, should be
excluded for lack of personal knowledge under FED. R. EVID. 602, and that all
exhibits to Mr. Nezuka’s deposition on written questions are inadmissible under
FED. R. EVID. 401, 402, 801, and/or 803. Opposer states:
. . . Mr. Nezuka’s testimony as a whole shows that he has
no personal knowledge as to any of the relevant events in
this matter; knows nothing of Plaintiff’s use of the
SKYMASTER mark, knows nothing first-hand about
Defendant’s alleged use of the mark, and as will be shown
in detail below, knows nothing first-hand about the
specific events and Exhibits on which he offers testimony.

3 Although Internet evidence is admissible under certain circumstances, it is well
established that the Board does not take judicial notice of pages from websites. UMG
Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1879 n.12 (TTAB 2011); Standard
Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d 1917, 1931 n.26 (TTAB
2006).
Opposition No. 91193904

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As a result, his deposition should not be admissible under
F.R.E. 602.4
Applicant characterizes opposer’s objections as “unfounded, even frivolous.”5 With
respect to its witness, applicant states that:
[B]y virtue of his long employment with [applicant]
KKAC, and having held senior positions in both KKAC
and its U.S. subsidiary during the past decade,
Mr. Nezuka is uniquely qualified to testify about the facts
that establish KKAC’s prior use of the trademark
SKYMASTER in connection with boom lifts that the
company marketed and sold in the U.S. in the past
decade.6
Turning first to the testimony, FED. R. EVID. 602 states in relevant part that:
“A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence
to prove personal knowledge may consist of the witness’s own testimony.” The test
is whether a reasonable trier of fact could believe the witness had personal
knowledge. “In other words, the testimony is excluded only if, as a matter of law, no
[trier of fact] could reasonably conclude that the witness perceived the facts to
which she testifies.” 27 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 6022 (2d ed. 2013).
Mr. Nezuka testified that he has worked for applicant since 1986.7 Most
relevant here, Mr. Nezuka testified that he was executive director in charge of

4 Opposer’s Brief at 22, 24 TTABVUE 31.
5 Applicant’s Brief at 7, 25 TTABVUE 12.
6 Id.
7 Nezuka Transcript at 7:2-3, 23 TTABVUE 10.
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overseas marketing for applicant Aichi Corporation from April 2000 until July 2008.
From August 2008 to October 2011, he was president of Aichi USA, Inc., a wholly
owned subsidiary of Aichi Corporation based in Glen Burnie, Maryland, which
conducts sales in the United States of aerial lifts made by Aichi Corporation.8 From
November 2011 to June 2012, Mr. Nezuka once again was executive director in
charge of overseas marketing for Aichi Corporation. Since July 2012, Mr. Nezuka
has been executive advisor to applicant.9 His duties at the time of his deposition in
September 2012 were to supervise applicant’s marketing of aerial lifts in territories
outside of Japan, including the United States.10 Mr. Nezuka answered simply “yes”
when asked: “Are you familiar with the activities of Aichi Corporation and Aichi
USA as they relate to the trademark SKYMASTER?”11
Mr. Nezuka testified that applicant has sold boom lifts12 under the
SKYMASTER mark since 1993, and that applicant or its U.S. subsidiary first began
to market and sell vehicle-mounted boom lifts under the SKYMASTER trademark
in the United States in 2001.13 When asked how he knew the 2001 date,
Mr. Nezuka answered: “That is my best recollection, and based on the records held
by Aichi Corporation.”14 Mr. Nezuka also testified that he knew Ideal Crane

8 Id. at 7:22-8:13, 23 TTABVUE 10-11.
9 Id. at 7:4-16, 23 TTABVUE 10.
10 Id. at 6:23-7:1, 23 TTABVUE 9-10.
11 Id. at 8:22-25, 23 TTABVUE 11.
12 A boom lift is a type of aerial lift apparatus consisting of a boom that has a platform at
the end. Id. at 9:20-24, 23 TTABVUE 12.
13 Id. at 10:10-20, 23 TTABVUE 13.
14 Id. at 10:21-23, 23 TTABVUE 13.
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Rental, Inc. of Madison, Wisconsin had purchased SKYMASTER boom lifts “[f]rom
business records of Aichi Corporation.”15
There is a distinction between the admissibility of records maintained in the
ordinary course of business, which are an exception to the rule against hearsay
under FED. R. EVID. 803(6), and witnesses testifying in their personal capacity.
Testimony from such individuals based on a review of business records is
inadmissible hearsay if the witness lacks personal knowledge:
[T]he [business record hearsay exception] rule does not
provide for the admission into evidence of the testimony of
a person who lacks personal knowledge of the facts, who
is unable to testify to the fulfillment of the conditions
specified within the rule, and who is testifying only about
what he has read or has been allowed to review.
City Nat’l Bank v. OPGI Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668,
1673 (TTAB 2013) (quoting Olin Corp. v. Hydrotreat, Inc., 210 USPQ 63, 67 (TTAB
1981)). Therefore, we sustain opposer’s objection under FED. R. EVID. 602 to any of
Mr. Nezuka’s testimony based on his review of applicant’s business records,
including the two examples in the preceding paragraph.
Not all of Mr. Nezuka’s testimony, however, is based on business records;
some is based on his personal knowledge. For example, Mr. Nezuka testified:
Q. Based upon your personal knowledge, can you say
for certain whether Aichi Corporation and/or its
wholly-owned subsidiary, Aichi USA, used the
trademark SKYMASTER in interstate commerce in
the United States prior to January 29, 2007?
A. Yes, we did.16

15 Id. at 12:2-14, 23 TTABVUE 15.
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In addition, Mr. Nezuka’s testimony demonstrates familiarity with use of the
SKYMASTER mark on applicant’s products, as follows: “The mark is shown at a
side surface of the boom of [sic] aerial lift. The mark also appears in my company’s
product catalogues and literature.”17 Moreover, contrary to opposer’s assertion,
Mr. Nezuka did not testify that he “was not the best person from Defendant to have
‘personal knowledge’ of key matters in this case”:18
Q. Are there any employees at Aichi Corporation
and/or Aichi USA that are more informed with the
use of the SKYMASTER mark during the years
2002, 2003, 2004, 2005 and 2006?
A. I do not know. Mr. Kato, the current President of
Aichi USA may have personal knowledge about
some of these matters.19
In any event, the fact that others might also have knowledge – even better
knowledge – of the facts to which Mr. Nezuka testified is not sufficient to disregard
his testimony. There is no requirement that testimony be presented by the very
best witness possible. Although opposer could have offered the testimony of anyone
else it thought might have had a different recollection, it did not do so.
Based on the substance of Mr. Nezuka’s testimony; his 26-year tenure with
applicant at the time of his deposition; and his job responsibilities, both as director
of applicant’s overseas marketing and his three-year term as president of
applicant’s U.S. subsidiary beginning in 2008, we find that Mr. Nezuka has

16 Nezuka Transcript at 13:7-12, 23 TTABVUE 16.
17 Id. at 9:6-11, 23 TTABVUE 12.
18 Opposer’s Brief at 22, 24 TTABVUE 31.
19 Nezuka Transcript at 17:21-18:2, 23 TTABVUE 20-21.
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demonstrated sufficient personal knowledge of applicant’s use of its SKYMASTER
mark in the United States and overrule opposer’s objection to admission of his
testimony in its entirety under FED. R. EVID. 602. Nonetheless, the admissibility of
specific portions of that testimony will be discussed infra where relevant to our
decision.
With respect to the exhibits to Mr. Nezuka’s deposition, opposer objects to the
admission of Exhibit 1 on the grounds that it is irrelevant under FED. R. EVID. 401
and 402. Mr. Nezuka testified that Exhibit 1 is a record of sales of twelve self-
propelled wheel-type boom lifts, Models ISP60 and ISP60J, from applicant to Ideal
Crane between 2002 and 2005.20 Opposer argues that this exhibit is irrelevant
because there is no record evidence that the mark SKYMASTER appeared on the
lifts in these records, noting that Mr. Nezuka testified he did not personally inspect
these specific units prior to shipment to Ideal Crane. Mr. Nezuka testified on cross-
examination that the SKYMASTER mark appeared on all new Model ISP60 and
ISP60J boom lifts sold by applicant and Aichi USA from 2002 through 2006. His
testimony on this point, however, was offered “[t]o the best of my knowledge and
belief,”21 which does not satisfy the personal knowledge requirement of FED. R.
EVID. 602 and thus will be given no consideration.
We find that Exhibit 1 has some relevance because it constitutes evidence of
sales by applicant of goods in the United States before opposer’s priority date

20 Id. at 12:15-13:6, 23 TTABVUE 15-16. Mr. Nezuka also testified that applicant and Aichi
USA maintain records of sales of its products by customer. Id. at 12:15-17, 23 TTABVUE
15.
21 Id. at 17:7-14, 23 TTABVUE 20.
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(discussed infra), and therefore is admissible. However, we do not find Exhibit 1,
standing alone, to constitute probative evidence as to whether the specific goods
sold by applicant bore the SKYMASTER mark.
Opposer also objects to admission of Exhibits 2A and 2B on the basis of
relevance and hearsay. We agree that these photographs are irrelevant to our
decision and have given them no consideration. They do not establish the fact for
which applicant submitted them, i.e., to prove use of the SKYMASTER mark on a
specific lift sold in 2003 and discussed infra because the serial number of the lift is
not visible in any of the four photos.
We reach a different conclusion with respect to Exhibits 2C, 2D, and 2E.
Exhibits 2C and 2D are photos of an aerial lift boom taken June 4, 2012. The first
of these two photos is shown below:

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Exhibit 2E is an Aichi America Corp. “pre delivery and inspection report” dated
April 25, 2003 documenting the resale of a machine Model No. I.S.P. 60A from Ideal
Crane Rental Inc. of Madison, WI to Crowley Masonry of Oregon, Wisconsin, phone
number 1-608-835-5660. Mr. Nezuka testified that Exhibit 2E is a record of Aichi
USA compiled and maintained in the ordinary course of its business, and furnished
to him at his request in his prior capacity as director of Aichi overseas marketing.22
Exhibit 2E is therefore admitted into evidence. Mr. Nezuka also testified that the
four photographs in Exhibit 2 “were taken at my direction and supervision by
employee [sic] of Aichi USA.”23
Applicant offered the photos and document in Exhibit 2 as evidence that a
specific self-propelled aerial boom lift, Serial No. 671168, listed in applicant’s
Exhibit 1 as having been sold to Ideal Crane Rental on April 1, 2003, bore the
SKYMASTER mark. Because the serial number is not visible on any of the photos
submitted as evidence at trial, they do not establish that that specific machine
displayed the SKYMASTER mark, either when the photo was taken in 2012 or at
the time of its sale from Aichi to Ideal in 2003. We therefore consider Exhibits 2C
and 2D not for the truth of the matter asserted by applicant, but merely for what
they show on their face: the SKYMASTER mark on the boom directly below
applicant’s name, as well as the Crowley Masonry name, location, and phone
number, as of June 4, 2012. These photos have some relevance because they tend to
support the business record in Exhibit 2E, although they do not independently

22 See Nezuka Transcript at 18:13-19:13, 23 TTABVUE 21-22.
23 Id. at 19:1-2, 23 TTABVUE 22.
Opposition No. 91193904

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prove that applicant used the SKYMASTER mark in U.S. commerce in 2003. We
also find that Mr. Nezuka has sufficiently authenticated these two photos in view of
the very limited extent to which we have considered them.
Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b),
the file of the opposed application. Opposer made of record the transcripts of
testimony depositions, with exhibits, of two of its employees: Robert Eddy, vice
president of operations, and Todd King, general manager and vice president of sales
and marketing. Opposer also introduced the following evidence by notice of
reliance:
1. A printout from the USPTO’s TARR electronic database showing the
status and title of its pleaded Registration No. 3635778 (Exhibit A);
2. Copies of pages from the March 2007 (Exhibit B) and March 2009
(Exhibit C) issues of the trade journal Access International;
3. Printouts from the websites www.ReachEquipment.com (Exhibit D)
and www.SPSRepair.com (Exhibit E); and
4. Applicant’s responses to Opposer’s first and second sets of
interrogatories and first set of requests for admission (Exhibits F-H,
respectively).
Applicant made of record portions of the transcript of the deposition on
written questions of Kenjiro Nezuka with Exhibits 2C, 2D, and 2E, subject to the
limitations discussed supra.
Analysis
Before turning to the likelihood of confusion claims, we briefly address two
other issues raised by opposer.
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A. Applicant’s Bona Fide Intent
Opposer argues that because applicant lacked the bona fide intent to use its
mark in commerce required under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b), at the time applicant filed its application, the application is void ab initio.
Applicant responds that opposer cannot assert this claim because it was not
pleaded. Opposer does not allege (nor does the trial record show) that the claim was
tried by implied consent; rather, opposer relies on the fifth paragraph of its Notice
of Opposition, which reads as follows:
Applicant is not entitled to use or register as a trademark
the SKYMASTER designation for which it seeks
registration in its Application Serial No. 77/269,641,
either on August 31, 2007, the date of filing of said
application, or on October 27, 2009, the date of
publication thereof in the Official Gazette.
We do not find the general language in the preceding paragraph sufficient to
state the grounds for a claim under Section 1(b) or to provide fair notice of the basis
for a claim under that statutory provision. See Trademark Rule § 2.104(a), 37
C.F.R. 2.104(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fair
Indigo LLC v. Style Conscience, 85 USPQ2d 1536, 1538 (TTAB 2007). Therefore, we
will not consider opposer’s argument that the application is void ab initio. P.A.B.
Produits et Appareils de Beaute v. Satinine Societa in Nome Collettivo di S.A. e. M.
Usellini, 570 F.2d 328, 196 USPQ 801, 804 (CCPA 1978); Syngenta Crop Protection
Inc., 90 USPQ2d at 1115 n.3; Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d
1100, 1103 n.3 (TTAB 2007).
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B. Publication of Applicant’s Mark
Opposer also argues that applicant’s application was improperly approved by
the examining attorney for publication in the Official Gazette, and that applicant
therefore cannot rely on the application.
The application that matured into opposer’s registration was filed pursuant
to Trademark Act Section 1(b) on January 29, 2007, some seven months before
applicant filed its own application under Section 1(b) on August 31, 2007. Due to a
potential likelihood of confusion between the parties’ SKYMASTER marks,
applicant’s application was suspended on July 15, 2008, pending disposition of
opposer’s prior pending application. After opposer’s registration issued on June 9,
2009, applicant’s application was approved for publication without comment by the
examining attorney on September 17, 2009.
Opposer argues that the examining attorney did not follow proper procedure
under Trademark Manual of Examining Procedure (TMEP) § 1208.02(d) (Oct. 2013)
in approving the application for publication, and the application should have been
refused under Section 2(d). We disagree. The application was approved for
publication by the examining attorney, who was not required to explain why
registration was not refused. Opposer’s recourse was to institute this opposition
proceeding. Thus, the question properly before us is not whether the examining
attorney erred, but whether confusion is likely and if so, who is entitled to priority.
Demon Int’l LC v. Lynch, 86 USPQ2d 1058, 1060 (TTAB 2008) (examining
attorney’s alleged error in failing to refuse registration to applicant based on
opposer’s registration is not a ground for opposition).
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C. Standing
The parties do not dispute that opposer has standing to oppose registration of
applicant’s mark. In any event, opposer’s standing is established by its pleaded
registration, which the record shows to be valid and subsisting, and owned by
opposer. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1844 (Fed. Cir. 2000) (party’s ownership of pleaded registration establishes
standing). Moreover, applicant has inherent standing to assert its counterclaim as
defendant in the opposition, and by virtue of the fact that opposer has asserted its
registration against applicant. Delaware Quarries, Inc. v. PlayCore IP Sub, Inc.,
108 USPQ2d 1331, 1332 (TTAB 2013); Anthony’s Pizza & Pasta Int’l Inc. v.
Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1274 (TTAB 2009).
D. Section 2(d) – Likelihood of Confusion and Priority
The parties concede, and we agree, that there is a likelihood of confusion
under the du Pont factors between their identical SKYMASTER marks and related
goods, equipment used for work at elevated heights. Thus, the sole remaining issue
in this case is priority.
E. Priority
Opposer may rely on the date it filed the application that matured into its
pleaded Registration No. 3635778 – that is, January 29, 2007 – to establish priority
over applicant.24 Trademark Act Section 7(c), 15 U.S.C. § 1057(c) (an application

24 When the plaintiff in an opposition proves its ownership of a trademark registration, it
typically need not prove its priority over the applicant. King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). The exception to the King
Candy rule is when the applicant seeks to cancel the opposer’s registration. Cent. Garden
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filing date is considered constructive use, contingent on registration). Opposer has
not alleged any earlier priority date.
A party claiming prior use of a registered mark may petition to cancel the
registration on the basis of such prior use pursuant to Section 14 of the Trademark
Act, 15 U.S.C. § 1064. With respect to its counterclaim, applicant bears the burden
of proving priority and likelihood of confusion by a preponderance of the evidence.
West Florida Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1662
(Fed. Cir. 1994); Dep’t of Justice, FBI v. Calspan Corp., 578 F.2d 295, 198 USPQ
147, 151 (CCPA 1978). Therefore, in order to prevail, applicant must prove by a
preponderance of the evidence that it used the SKYMASTER mark on its goods in
commerce in the United States before January 27, 2007.
As discussed supra, much of the testimony of applicant’s sole witness relating
to priority is inadmissible because it was based on business records and the
witness’s “knowledge and belief,” not his personal knowledge. However, applicant’s
witness also offered the following unequivocal testimony:
Q. Based upon your personal knowledge, can you say
for certain whether Aichi Corporation and/or its
wholly-owned subsidiary, Aichi USA, used the
trademark SKYMASTER in interstate commerce in
the United States prior to January 29, 2007?
A. Yes, we did.25

& Pet Co. v. Doskocil Mfg. Co., 108 USPQ2d 1134, 1139 (TTAB 2013). By filing its
counterclaim, applicant in this case put the validity of opposer’s registration in play. As a
result, opposer may not simply rely on the registration; it must prove that it is entitled to
priority over applicant.
25 Nezuka Transcript at 13:7-12, 23 TTABVUE 16.
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In addition, although not discussed in the briefs of either party, opposer made
of record applicant’s second set of interrogatory responses. Six of the responses to
these fifteen interrogatories state that applicant used its mark in U.S. commerce in
association with the goods identified in its application as of dates long before
opposer’s 2007 priority date. These responses include:
Interrogatory No. 12: With respect to trucks featuring an
aerial lift apparatus, identify the date on which Applicant
first used Applicant’s Mark in U.S. interstate commerce
and describe the facts relating to such use of Applicant’s
Mark in U.S. interstate commerce.
Response: Applicant hereby incorporates its
General Objections, and states that the goods
identified in Interrogatory No. 12 were sold in the
U.S. to Ideal Crane Rental in Madison, Wisconsin
as early as sometime in 1999.
* * *
Interrogatory No. 14: With respect to structural parts of
motor vehicles, namely, trucks featuring an aerial lift
apparatus, identify the date on which Applicant first used
Applicant’s Mark in U.S. interstate commerce and
describe the facts relating to such use of Applicant’s Mark
in U.S. interstate commerce.
Response: Applicant hereby incorporates its
General Objections, and states that the goods
identified in Interrogatory No. 14 were sold in the
U.S. to Ideal Crane Rental in Madison, Wisconsin
as early as sometime in 2000.26
We consider the first use dates of 1999 and 2000 provided in applicant’s
interrogatory responses together with exhibits 1 and 2E – which reflect sale dates of
self-propelled aerial boom lifts between 2002 and 2005, although neither

26 Exhibit G to Opposer’s Notice of Reliance, 7 TTABVUE 48-59. Several of the other
interrogatory responses state that while applicant does not use its mark on the goods
identified in the interrogatory, “its apparatus is adaptable for such use.”
Opposition No. 91193904

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independently proves that applicant’s lifts were sold with the SKYMASTER mark –
and with Mr. Nezuka’s testimony, based on his personal knowledge, that he is
certain applicant or its wholly owned subsidiary Aichi USA used the mark
SKYMASTER in interstate commerce in the United States before January 29, 2007.
Although production of probative documentary evidence undoubtedly would have
strengthened applicant’s case,
there is no requirement of law that corroboration of
testimony of a witness in a proceeding of this character is
essential to its probativeness. It is established that
ownership of a trademark and of a trademark registration
as well as use of a mark may be established by the oral
testimony of a single witness where such testimony is
clear, consistent, convincing, circumstantial and
uncontradicted.
GAF Corp. v. Anatox Analytical Servs., Inc., 192 USPQ 576, 577 (TTAB 1976). See
also Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98
USPQ2d 1921, 1931 (TTAB 2011) (stating that although it is preferable for
testimony to be supported by corroborating documents, a lack of documentary
evidence is not fatal); 4U Co. of America, Inc. v. Naas Foods, Inc., 175 USPQ 251,
253 (TTAB 1972). Mr. Nezuka’s testimony is credible and not characterized by
contradictions or inconsistencies.
In its reply brief, opposer argues that applicant’s claim of prior use is barred
because its use was intermittent and discontinuous. Opposer relies in part on
testimony from Mr. Nezuka that applicant shipped no new boom lifts to purchasers
in the United States on which the mark SKYMASTER appeared in 2009 or 2010. In
order to establish priority, however, our primary reviewing court has held that a
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party is only required to show prior use, not continuous use of its mark, unless
the opposing party has asserted abandonment. West Florida Seafood Inc., 31
USPQ2d at 1665 (“The governing statute does not speak of ‘continuous use,’ but
rather of whether the mark or trade name has been ‘previously used in the United
States by another and not abandoned.’ 15 U.S.C. Section 1052(d) (emphasis
added).”). Opposer here has not pleaded abandonment; nor does a two-year gap in
use constitute a prima facie case of abandonment under Section 45 of the
Trademark Act, 15 U.S.C. § 1127.
Based on the preponderance of the evidence admitted into the record as a
whole, we find that applicant has shown common-law use of its mark in the United
States in association with aerial lifts before January 29, 2007 and therefore has
priority over opposer.
Decision: The opposition to registration of application Serial No. 77269641 is
dismissed. Applicant’s counterclaim for cancellation of Registration No. 3635778 on
the grounds of priority and likelihood of confusion pursuant to Trademark Act
Section 2(d) is sustained. Application Serial No. 77269641 will proceed to
registration, and Registration No. 3635778 will be cancelled, in due course.