Sparrow LLCv.Jonathan Fitch

Trademark Trial and Appeal BoardAug 7, 2012

No. 91196902 (T.T.A.B. Aug. 7, 2012)

Mailed: August 7, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Sparrow LLC v. Jonathan Fitch _____ Opposition No. 91196902 to application Serial No. 77825285 filed on September 11, 2009 _____ Jon M. Leader of Leader Gorham LLP for Sparrow LLC. Jonathan Fitch, pro se. ______ Before Seeherman, Quinn and Kuczma, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Jonathan Fitch (“applicant”) filed an intent-to-use application under § 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), to register the mark “LOVE n LIFE,” in standard character form1 on the Principal Register for “Shirts; T- shirts; Tee shirts” in Class 25. Sparrow LLC (“opposer”) filed a notice of opposition against the registration of applicant’s mark on the grounds of priority of use and likelihood of confusion, and 1 Application Serial No. 77825285. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91196902 2 dilution, pursuant to §§ 2(d) and 43(c) of the Trademark Act of 1946, 15 U.S.C. §§ 1052(d) and 1125(c), respectively.2 Specifically, opposer alleged that applicant’s “LOVE n LIFE” mark for shirts and T-shirts is likely to cause confusion with and dilute opposer’s previously used and registered “LIFE NATURE LOVE” mark, in typed form,3 for “clothing, namely jackets, sweaters, vests, sweat shirts, sweat pants, shirts, blouses, Ft-shirts (sic), pants, jeans, shorts, skirts, dresses, swim wear, cover-ups, head wear and footwear” in Class 25, and various products in Class 18.4 Though worded unartfully, applicant’s response to the notice of opposition effectively denies the salient allegations in the notice of opposition. Neither party 2 The grounds for opposition designated by opposer on the ESTTA cover sheet also included deceptiveness, false suggestion of a connection and an “other” ground for unfair competition. While the content of the ESTTA cover sheet is considered part of the notice of opposition, PPG Industries Inc. v. Guardian Industries Corp., 73 USPQ2d 1926, 1928 (TTAB 2005), opposer made no specific allegations in its notice of opposition nor raised any arguments in its appeal brief regarding these grounds. Therefore, these grounds are deemed to be waived. 3 In 2003, Trademark Rule 2.52(a) was amended to refer to “typed” drawings as “standard character” drawings. See Trademark Rule 2.52(a); 37 C.F.R. § 2.52(a); TMEP § 807.03(i) (8th ed.). 4 Registration No. 2856929, issued June 22, 2004. The following Registrations, which are not relevant, were also pleaded in the notice of opposition: No. 2925845 for the mark FREE CITY in Classes 18 and 25; No. 3064253 for the mark FREE CITY in Class 35; No. 3724842 for the mark FREE CITY LETSGO in Class 25; and No. 3855750 for the mark (depiction of humming bird in flight) in Class 25. Opposition No. 91196902 3 submitted testimony or evidence and only opposer filed a brief. The Record No testimony or evidence was submitted by either party during their respective testimony periods, and the listing of opposer’s registration numbers into ESTTA, the Board’s on-line filing system, at the time of filing the notice of opposition is insufficient to make the pleaded registrations of record. Therefore, the record is limited to the applicant’s application file and the pleadings. See Melwani v. Allegiance Corp., 97 USPQ2d 1537, 1540 (TTAB 2010) and 37 CFR § 2.122(b), Trademark Rule 2.122(b).5 Opposer’s Standing Standing is a threshold issue that must be proven by a plaintiff in every inter partes case. John W. Carson Foundation v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB 2010) citing Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999) and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 5 In its appeal brief, opposer notes applicant’s failure to appear for a properly noticed testimony deposition. Applicant’s failure to appear for his testimony deposition is without consequence in view of opposer’s failure to secure applicant’s attendance at the deposition via subpoena, and the complete lack of evidence in support of opposer’s position on the merits. See Stockpot, Inc. v. Stock Pot Restaurant, Inc., 220 USPQ 52, 55 n.7 (TTAB 1983) (no adverse inference can be drawn from adverse party's failure to appear and produce requested documents at testimony deposition where party attempted to secure attendance by notice alone), aff'd, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) and TBMP § 703.01(f)(1) (3d ed. rev. 2012). Opposition No. 91196902 4 1982). There is nothing in the record evidencing opposer’s ownership of any registrations, or prior common law rights based on use of a trademark or trade name.6 Accordingly, opposer has not proved that it has any real interest in the proceeding and the opposition must be dismissed for opposer's lack of standing. Lumiere Productions, Inc. v. International Telephone and Telegraph Corp., 227 USPQ 892, 893 (TTAB 1985). Substantive Grounds Opposer also bears the burden of proof which encompasses the obligation of going forward with sufficient proof of the material allegations of the notice of opposition. Sanyo Watch Co., Inc. v. Sanyo Electric Co., Ltd., 691 F.2d 1019, 215 USPQ 833, 834 (Fed. Cir. 1982). Opposer asserts numerous “facts” in its appeal brief. However, there is no support in the record for such statements. Accordingly, they are given no consideration. See TBMP § 704.06(b) (3d ed. rev. 2012). Inasmuch as there is no evidence in the record and no admissions by applicant, opposer has failed to prove any of its pleaded claims. Therefore, the opposition is dismissed. 6 The exhibits accompanying the Notice of Opposition and Plaintiff/Opposer Sparrow LLC’s Main [Appeal] Brief allegedly showing clothing items bearing some of opposer’s trademarks are given no consideration as they were not properly made of record during opposer’s testimony period. See Syngenta Crop Protection Opposition No. 91196902 5 Decision The opposition to registration of the mark shown in Serial No. 77825285 is dismissed with prejudice. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1116 (TTAB 2009), 37 C.F.R. § 2.122(c) and TBMP §§ 704.05 (a) and (b) (3d ed. rev. 2012).