United States Practical Shooting Associatonv.Michael A. Gallion

Trademark Trial and Appeal Board

Jul 1, 2020

91239305 (T.T.A.B. Jul. 1, 2020)

GMM
July 1, 2020

Opposition No. 91239305

United States Practical Shooting Association

v.
Michael A. Gallion

Before Kuhlke, Adlin, and Larkin,
Administrative Trademark Judges.

By the Board:

This case comes up for consideration of the parties’ cross-motions for summary
judgment. United States Practical Shooting Association (“Opposer”) has renewed its
motion for partial summary judgment on its non-ownership claim, and Michael A.
Gallion (“Applicant”) has cross-moved for summary judgment on Opposer’s claims of
likelihood of confusion, non-owership, and lack of aquired distinctiveness.1

1 Concurrently with its reply brief in support of its cross-motion for summary judgment,
Applicant filed a separate “Motion to Establish Opposer’s Mark as Public Domain.” See 48
TTABVUE. When a party timely files a motion for summary judgment, proceedings are
suspended with respect to all matters not germane to the motion and no party should file any
paper which is not germane to the motion except as otherwise may be specified in a Board
order. Trademark Rule 2.127(d), 37 C.F.R. § 2.127(d). Applicant’s motion was filed after the
parties’ cross-motions were fully briefed, and in the motion Applicant attempts to raise issues
that should have been raised in Applicant’s cross-motion. Accordingly, we will give
Applicant’s untimely motion no consideration.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
THIS DECISION IS NOT
A PRECEDENT OF THE
TTAB
Opposition No. 91239305

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I. Background
Applicant, an individual appearing pro se, seeks registration of the standard
character mark INTERNATIONAL STEEL SHOOTING ASSOCIATION (Serial No.
87435889) for “Trade association services, namely, promoting the interests of
firearms match competitors” in International Class 35.2 In its second amended notice
of opposition (filed on November 14, 2018), Opposer asserts claims of likelihood of
confusion, non-owership, and lack of aquired distinctiveness.3 Opposer’s claim of
likelihood of confusion is based on its ownership of two pending applications for the
following marks, alleged to be in use in interstate commerce since March 26, 1982:4
Serial No. 87517169

Serial No. 87661774

Applicant denies the salient allegations in the second amended notice of opposition.

2 Serial No. 87435889 filed May 3, 2017 based on use of the mark in commerce under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and includes a claim of use of the mark
anywhere and use of the mark in commerce since March 11, 2010. The application includes
a disclaimer of the wording “ASSOCIATION” and a claim of acquired distinctiveness in part
as to “INTERNATIONAL STEEL SHOOTING ASSOCIATION.”
3 26 TTABVUE 20-27.
4 Serial No. 87517169 filed July 6, 2017 for “Association services, namely, promoting the
interests of firearm shooters” in International Class 35 based on use of the mark in commerce
under Trademark Act Section 1(a), 15 U.S.C. § 1051(a). The application includes a disclaimer
of the wording “STEEL CHALLENGE SHOOTING ASSOCIATION.” Serial No. 87661774
filed October 26, 2017 for “Organizing, conducting and operating pistol shooting
tournaments” in International Class 41 based on use of the mark in commerce under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a). The application includes a disclaimer of the
wording “WORLD SPEED SHOOTING CHAMPIONSHIPS” AND “PISTOL
TOURNAMENT.”
Opposition No. 91239305

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II. The Board’s Prior Summary Judgment Determination
In an order issued on May 30, 2019 (the “Prior Order”), the Board, inter alia,
denied Opposer’s original cross-motion for partial summary judgment on the non-
ownership claim. Opposer’s cross-motion was based on Applicant’s deemed
admissions under Fed. R. Civ. P. 36(a)(3), which resulted from Applicant’s failure to
timely respond to Opposer’s requests for admission.5 However, the Board construed
Applicant’s statements in response to Opposer’s cross-motion as an implicit motion
to withdraw his admissions under Fed. R. Civ. P. 36(b),6 granted it, and ordered
Applicant to serve complete responses to Opposer’s requests for admission, without
objections, by July 1, 2019, failing which Opposer could renew its motion for summary
judgment and rely on the deemed admissions.7
In accordance with the Board’s order, Opposer now has renewed its motion for
partial summary judgment on the non-ownership claim, pointing out that Applicant
failed to comply with the Prior Order and never served responses to the requests for
admission.8 Applicant has responded to the renewed motion, and cross-moved for
summary judgment on the non-ownership claim, and on Opposer’s claims of
likelihood of confusion and lack of acquired distinctiveness.

5 41 TTABVUE 9.
6 Id.
7 Id. at 10-11. The Prior Order contained a typographical error mistakenly stating that
“[s]hould Applicant fail to respond to the requests within the allowed time, Applicant may
renew its motion for summary judgment and may rely on the deemed admissions.” Id. at 11
(emphasis added). However, the context made clear that the Board was advising the parties
that Opposer could renew its motion for summary judgment and rely on the deemed
admissions if Applicant failed to comply with the Board’s order.
8 Declaration of Michael Atkins ¶ 1 (43 TTABVUE 13).
Opposition No. 91239305

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III. Summary Judgment
Summary judgment is an appropriate method of disposing of cases in which there
are no genuine disputes as to any material facts and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing a motion for summary
judgment, the evidentiary record and all justifiable inferences to be drawn from the
undisputed facts must be viewed in the light most favorable to the non-moving party.
See Lloyd’s Food Prods. Inc. v. Eli’s Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029-30
(Fed. Cir. 1993); Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d
1542, 1546 (Fed. Cir. 1992). We may not resolve disputes of material fact; we may
only ascertain whether a genuine dispute regarding a material fact exists. See Lloyd’s
Food Prods., 25 USPQ2d at 2029; Olde Tyme Foods, 22 USPQ2d at 1544.
The party moving for summary judgment has the burden of demonstrating that a
particular fact cannot be disputed by citing to the record, including affidavits or
declarations, admissions or interrogatory answers; or showing that the cited
materials do not establish the absence or presence of a genuine dispute, or that the
adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party carries its burden, the nonmoving party may not rest on mere allegations, but
must designate specific portions of the record or produce additional evidence showing
the existence of a genuine dispute of material fact for trial. See Venture Out Props.
LLC v. Wynn Resort Holdings LLC, 81 USPQ2d 1887, 1890 (TTAB 2007); see also
Fed. R. Civ. P. 56(c)(1).
Opposition No. 91239305

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A. Opposer’s Standing

Standing is a threshold issue that must be pleaded and proven by the plaintiff 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); Ritchie v. Simpson, 171 F.3d. 1092,
50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999). In the Prior Order, the Board previously
determined that Opposer has established its standing by submitting a copy of the
Suspension Notice suspending its pleaded application Serial No. 87661774 based on
an alleged likelihood of confusion with Applicant’s involved application.9 Accordingly,
there is no genuine dispute regarding Opposer’s standing to oppose registration of
Applicant’s mark.
B. Non-Ownership
Under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), only the owner may apply
to register a mark. Whoever controls the nature and quality of goods sold under a
mark is the owner of that mark. See Smith Int’l. Inc. v. Olin Corp., 209 USPQ 1033,
1044 (TTAB 1981); Noble House Home Furnishings, LLC v. Floorco Enters., LLC, 118
USPQ2d 1413, 1421 (TTAB 2016).
Opposer’s renewed motion for partial summary judgment on the non-ownership
claim is based on Applicant’s deemed admissions that it does not own the mark.10. As
indicated, Applicant not only failed to timely respond to Opposer’s requests for

9 41 TTABVUE 6-7.
10 See Request for Admission No. 1 (43 TTABVUE 4; 35 TTABVUE 21).
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admission after they were served, but inexplicably violated the Prior Order after it
granted him a second chance by again failing to respond.
In response to Opposer’s renewed motion, Applicant does not dispute that in
contravention of the Board’s Prior Order he did not serve responses to the requests
for admission. Rather, Applicant invokes his pro se status and argues that “[h]e
believed that the July 1 deadline was not to answer a question, but to add more or
further expand on an answer that he had already answered, if he thought there was
more to the previous answer that needed to be added.”11
Applicant’s argument is unavailing. In the Prior Order, the Board clearly stated
that “Applicant is ordered to serve complete responses to Opposer’s requests for
admission, without objection, within THIRTY DAYS[.]”12 The Board also repeated
this directive and deadline at the end of the Prior Order.13 Additionally, the Board
cautioned Applicant that if he did not respond to the requests by the July 1, 2019
deadline, then Opposer could renew its motion for summary judgment and could rely
on the deemed admissions. The requirement that Applicant serve complete responses
to Opposer’s requests for admission, and the consequences for failing to do so, could
not have been clearer.
Additionally, in the Prior Order, the Board encouraged Applicant to seek
experienced trademark counsel for representation in this proceeding, and advised

11 45 TTABVUE 6.
12 41 TTABVUE 10.
13 Id. at 11.
Opposition No. 91239305

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him that if he continued to represent himself in this proceeding he would be expected
to strictly comply with all applicable rules, and adhere to the dates set forth in the
Board’s orders.14 Moreover, Applicant was specifically advised that he was expected
to fully comply with the deadlines set in the Prior Order, and that “failure to do so
could result in the entry of judgment against Applicant.”15 In view of the Board’s clear
instructions to Applicant, and the Board’s repeated warnings that strict compliance
with all applicable rules and deadlines was expected of him, Applicant’s contention
that he misunderstood the Prior Order is utterly unpersuasive. Accordingly, the
matters that are the subject of the requests for admission are deemed admitted by
Applicant, and the admitted matters are conclusively established. Fed. R. Civ. P.
36(a)(3) and 36(b).
By Applicant’s admissions, it is conclusively established that “the
INTERNATIONAL STEEL SHOOTING ASSOCIATION (Serial No. 87435889)
trademark is owned by the International Steel Shooting Association” and that
“[Applicant] do[es] not own the International Steel Shooting Association.”16
These admissions conclusively establish that Applicant does not own the involved
mark. Accordingly, there is no genuine dispute that Applicant is not the owner of the
mark.

14 Id. at 12.
15 Id. In earlier orders, the Board had advised Applicant that the Board “strongly advises all
parties to secure the services of an attorney who is familiar with trademark law and Board
procedure.” See 2 TTABVUE 6; 6 TTABVUE 2-3. Additionally, on August 28, 2018, Applicant
was advised that the Board would be less lenient regarding further failures to comply with
applicable deadlines. See 14 TTABVUE 3 n.2.
16 See 43 TTABVUE 4-5; 35 TTABVUE 21-22.
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IV. Determination
In summary, there is no genuine dispute regarding Opposer’s standing, nor is
there any genuine dispute that Applicant is not the owner of the INTERNATIONAL
STEEL SHOOTING ASSOCIATION mark. Accordingly, Opposer’s motion for partial
summary judgment on the non-ownership claim is granted, the opposition on that
ground is sustained, and registration to Applicant is refused.
Because our entry of summary judgment on the non-ownership claim is dispositive
of this case, we decline to reach Applicant’s cross-motion for summary judgment on
Opposer’s claims of likelihood of confusion and lack of acquired distinctiveness.17 The
claims of likelihood of confusion and lack of acquired distinctiveness are dismissed
without prejudice as moot, and Applicant’s cross-motion for summary judgment on
those claims is denied without prejudice.

17 See TBMP § 102.01 (the Board may exercise its discretion to decide only those claims which
are necessary to dispose of a case).