Warner Bros. Entertainment Inc.v.Akke Wagenaar

Trademark Trial and Appeal Board

Dec 6, 2012

No. 91186293 (T.T.A.B. Dec. 6, 2012)

Hearing: July 17, 2012 Mailed: December 6, 2012

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________
Warner Bros. Entertainment Inc.
v.
Akke Wagenaar
________
Opposition No. 91186293
against Serial No. 77241742
_______
Elizabeth H. Cohen, Michael A. Grow and Chiara Giuliani of Arent Fox LLP for
Warner Bros. Entertainment Inc.
Akke Wagenaar, pro se.
_______
Before Bucher, Kuhlke and Kuczma, Administrative Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Akke Wagenaar, a citizen of The Netherlands and a resident of Senegal,
seeks registration on the Principal Register of the mark ANIMATRIX for
services recited in the application as “entertainment services, namely, the
production of computer graphics animations, conducting entertainment exhi-
bitions in the field of computer graphics animations, and providing infor-
This Opinion is NOT a
Precedent of the TTAB
Opposition No. 91186293
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mation via a global computer network about computer graphics animations”
in International Class 41.1
Warner Bros. Entertainment Inc. (hereinafter “opposer” or “WBEI”) op-
posed registration of Ms. Wagenaar’s mark, asserting as its ground for opposi-
tion, that her application is void ab initio, alternatively, that applicant aban-
doned any rights that she may have ever possessed in the term “Animatrix,”
and that applicant committed fraud in procuring her trademark registration
by knowingly making false, material representations of fact in connection
with her application.
Ms. Wagenaar filed an amended answer denying the salient allegations
of the notice of opposition. She tried to allege affirmative defenses (e.g., oppos-
er’s failure to state a claim, waiver/laches/acquiescence, unclean hands, and
estoppel) but there are no facts which support these defenses, and we consider
the defenses to have been waived. While both parties submitted evidence for
the record, only opposer filed a brief and appeared at a hearing before this
panel as requested by opposer herein.
Preliminary Matters
On April 4, 2011, WBEI filed an uncontested motion to strike portions of
Ms. Wagenaar’s Notice of Reliance of February 24, 2011. This motion was cor-
rectly deferred until final decision.

1 Application Serial No. 77241742 was filed on July 30, 2007, based upon Ms. Wage-
naar’s claim of use anywhere and use in commerce since at least as early as August
1, 1993.
Opposition No. 91186293
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Ms. Wagenaar attempts to introduce into evidence portions of her own
discovery deposition taken by WBEI. However, we agree with WBEI that only
an adverse party can introduce into evidence the discovery deposition of a par-
ty. 37 C.F.R. § 2.120(j)(1). Furthermore, her attempted use of her deposition
testimony does not fit within any of the exceptions listed in the rule. See
TBMP § 704.09 (3rd ed. rev. 2012).
Similarly, Ms. Wagenaar attempts to introduce into evidence her re-
sponse to WBEI’s Interrogatory No. 19. However, we agree with WBEI that
only the inquiring party may introduce into evidence interrogatory responses
by notice of reliance. 37 C.F.R. § 2.120(j)(5). Furthermore, this does not fit
within any of the exceptions listed in the rule. See TBMP § 704.10.
Hence, these portions of applicant’s Notice of Reliance have been strick-
en.
WBEI also filed separate from its main brief a detailed Statement of Ob-
jections to the evidence submitted during Ms. Wagenaar’s Testimony Period.
Although applicant’s declaration dated February 14, 2011 (with attendant
exhibits) was submitted pursuant to the parties’ stipulation (filed April 12,
2011), we strike much of this alleged evidence given the extraordinary number
of objectionable statements and exhibits offered by applicant therein.2 We will
summarize briefly the objections, and our reasons for striking the evidence.

2 The same is true for a paper that applicant submitted on May 12, 2011.
Opposition No. 91186293
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A large number of exhibits (and related testimony) has been stricken be-
cause they consist of documents that opposer requested during discovery but
that applicant failed to produce at that time. See Byer California v. Clothing
for Modern Times Ltd., 95 USPQ2d 1175 (TTAB 2010); Panda Travel Inc. v.
Resort Option Enterprises Inc., 94 USPQ2d 1789 (TTAB 2009).
Some of the exhibits attached to applicant’s declaration appeared to be al-
tered versions of documents that had been produced during discovery (e.g., dis-
crepancies included blurry screenshots of earlier textual versions having addi-
tional browser information, additional or different information, added hand-
writing, etc.). These exhibits have been stricken from the record.
Exhibits that appear to be screenshot printouts of Internet websites crop
out important portions of a larger image, and often lack both the URL and the
date the document was printed, and this failure of authentication was not
ameliorated through the portions of her declaration ultimately made a part of
the record herein.
Furthermore, applicant took statements from these websites and clear-
ly placed them into the record for the truth of the statements, although the
statements comprised pure hearsay from individuals who were never subject
to cross examination. As seen above, this failure was not cured in the portions
of her declaration ultimately made a part of the record herein.
In Section A of applicant’s testimony, in addition to references to docu-
ments that were never produced in discovery, applicant’s testimony about six
Opposition No. 91186293
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other works of art have nothing to do with the term "Animatrix," and have no
relevance whatsoever to the question of whether she used the term "Anima-
trix" as a service mark.
In Section B of applicant’s testimony (and related exhibits): (i) foreign
use of a term creates no rights in the United States and is irrelevant; (ii) in
addition to relevancy problems, most of these referenced exhibits were not
authenticated, are not the best evidence and suffer from problems of hearsay;
(iii) a screenshot of a web page alleged taken from a New York based art archive
that references applicant’s artwork is irrelevant because it fails to show ser-
vice mark usage, and there is no evidence that anyone ever accessed that
website or viewed this artwork; (iv) we exclude documents recreating “lost
evidence,” where the originals were never produced, inasmuch as these re-
placed versions violate the best evidence rule (FRE 1002) and they cannot be
authenticated (FRE 901); (v) documents from archives outside the United
States are irrelevant and were not produced during discovery; (vi) docu-
ments from U.S. archives were not produced during discovery, are hearsay,
violate the best evidence rule and cannot be authenticated; (vii) applicant’s
statements about alleged TV broadcasts and lectures are irrelevant, were not
produced during discovery, are hearsay, violate the best evidence rule, can-
not be authenticated, and there is no evidence that anyone in the U.S. viewed
these broadcasts; and foreign language materials without translations are al-
so excluded.
Opposition No. 91186293
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In Section C of applicant’s testimony (and related exhibits): (i) additional
documents were not produced during discovery and have been stricken; (ii)
statements drawn from the Internet that were allegedly made by one Michael
Arias are hearsay and have been stricken; (iii) that Mr. Arias was present
at the SIGGRAPH conference in California in 1993 is irrelevant and com-
pletely unsupported by the record; (iv) there is no support for the conclusion
that applicant is well-known in Japan, that Mr. Arias ever knew of her single
work of art; or that Mr. Arias even had anything to do with opposer’s selection
of the ANIMATRIX mark.
In Sections D and E of applicant’s testimony (and related exhibits): (i)
applicant’s testimony and exhibits about sending emails on the Internet prior
to 1995 are irrelevant because they do not show service mark usage of the term
“Animatrix,” reference documents that were not produced in discovery, are
cumulative, duplicative, have not been authenticated, are mostly hearsay, Ms.
Wagenaar is certainly not qualified as an Internet expert, and applicant’s tes-
timony in these sections, taken as a whole, simply creates doubts as to her
credibility; (ii) excerpts of applicant’s own discovery deposition are inadmissi-
ble under 37 C.F.R. § 2.120(j)(1); TBMP § 704.09; (iii) an excerpt of opposer’s
interrogatory is improper under 37 C.F.R. § 2.120(j)(5); TBMP § 704.10; and (iv)
it defies logic to conclude, as Ms. Wagenaar would have us do, that a note of
September 29, 1999, on Nettime, a moderated mailing list for net criticism
placed by net artist Alexei Shulgin in which he explained to net.art historians
Opposition No. 91186293
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where to find “traces of err.org” (Ms. Wagenaar’s former website), justifies a
finding that applicant is either “quite known” among the general public, or
that “people are looking for her.” Wagenaar Test. Decl. at 37, Ex. E013.
In Section F of applicant’s testimony (and related exhibits): (i) whether
applicant had a reputation among “computer art fans” is irrelevant to any issue in
this proceeding; (ii) applicant’s references to Japanese art awards that she
allegedly won and art books in which she allegedly appeared are all irrele-
vant since they demonstrate no service mark usage in the U.S.; and (iii) like
the other Internet evidence reviewed above, the testimony and exhibits in
this section should be stricken on the same grounds as the other Internet evi-
dence, namely, hearsay, lack of authentication (neither self-authentication nor
through non-stricken portions of her declaration), lack of personal knowledge,
and failure to produce during discovery.
In Section G of applicant’s testimony (and related exhibits): (i) appli-
cant’s speculation about opposer’s selection of the ANIMATRIX mark is com-
pletely irrelevant to the issues in this proceeding; (ii) the Internet documents
are mere hearsay, they lack authentication or corroborating witness testimo-
ny, lack foundation and are cumulative; (iii) this material is stricken inasmuch
as applicant has no personal knowledge of the alleged facts, but instead relies
upon a series of random web pages (submitted without foundation, dates or
URLs), to speculate that opposer’s ANIMATRIX film had no title at one
point, and then to conclude that it was later known as “Into the Matrix”; (iv)
Opposition No. 91186293
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applicant relies upon two of opposer’s registrations that are not of record; (v)
applicant’s strained conclusion that opposer’s counsel’s privilege log sup-
ports an inference that opposer knew about applicant’s “Animatrix” art-
work is merely speculation and conjecture that is stricken from the record;
(vi) applicant’s claim that her artwork can no longer be found with an Inter-
net search is irrelevant to the issues presented in this case; (vii) possible for-
eign registrations by either party have no bearing on the issues presented in
this proceeding; and (viii) whether applicant has U.S. trademark applica-
tions or registrations for ANIMATRIX is not relevant to opposer’s interest in
bringing an opposition, given its common law rights.
In Sections I and J of applicant’s testimony (and related exhibits): (i) ex-
hibits purporting to show where applicant lived at various times are stricken
inasmuch as her résumé was never produced during discovery; (ii) as seen
earlier, inadmissible screenshots containing unauthenticated hearsay in the
form of unsworn statements printed from the Internet are stricken (and
again, many do not contain source and date information); (iii) applicant is not
qualified as an expert to offer any opinion as to opposer’s adoption or use of its
ANIMATRIX mark; and (iv) the mere fact that a third party (e.g., the
www.waybackmachine.com online archive) failed to archive a given web-
site does not mean that the website was not live, and in any case, applicant’s
allegations on this score are immaterial to any issue in this proceeding.
Opposition No. 91186293
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The Record
The record includes the pleadings; the file of the involved application;
the Testimony Deposition of Jack A. Hitt (November 17, 2010) and exhibits
thereto (“Hitt Dep.”); the Testimony Deposition of David Hedrick (October 28,
2010) and exhibits thereto (“Hedrick Dep.”); the Testimony Deposition of Mi-
chael Kory (October 27, 2010) and exhibits thereto (“Kory Dep.”); the Testimony
Deposition of Alayne R. O'Neill (June 16, 2011) and exhibits thereto (“O’Neill
Dep.”); opposer’s Notice of Reliance (November 24, 2010), introducing (i)
Excerpts of the discovery deposition of applicant, Akke Wagenaar (“Wagenaar
Disc. Dep.”) (August 4, 2009) along with attendant Exhibits B, C and E; and,
(ii) applicant’s Answers to opposer’s First Set of Interrogatories Nos. 1, 2, 7 (with
exhibits), 12, 18, 19, 23, 24, 25, 26, 27, 31 and Supplemental Responses to In-
terrogatories Nos. 12 and 31.
As to applicant’s submissions, we refer to pages 11, 18, 35 and 67 of Ms.
Wagenaar’s testimony declaration (Wagenaar Test. Decl.), as well as the at-
tached Exs. A001 – A028 and Ex. B003.3
INITIAL FINDINGS OF FACT
The evidence of record establishes the following pertinent facts regarding
the parties.

3 We hasten to add that even if we had found reasons to consider Ms. Wagenaar’s
entire testimony declaration, it would not have changed our determination herein.
Opposition No. 91186293
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Opposer: WBEI
Opposer, Warner Bros. Entertainment Inc. (or WBEI), is the owner of
the enormously successful movie franchise including three motion pictures
known as simply “THE MATRIX.” The first movie in the series, also THE
MATRIX, was released on March 31, 1999; the second movie, THE MATRIX
RELOADED, was released on May 15, 2003; and the third, THE MATRIX
REVOLUTIONS, was released on November 5, 2003. All three movies starred
famous Hollywood actors, and all were extremely well received by the public in
the U.S. (as well as in foreign markets, although that is not relevant herein).
THE MATRIX series is set in the future, when humans have been
enslaved by machines that create the illusion that the humans live in a real
world, called The Matrix. The movies describe the attempts by humans to es-
cape from and battle the machines.
In addition to their compelling story lines, these movies were notewor-
thy for their revolutionary film technique referred to as “Bullet Time.” Alt-
hough the exact figures of revenues generated are confidential, this franchise
has earned well in excess of a billion dollars for WBEI.
These effects and the compelling science fiction story line generated an
enormous fan base and a keen demand for information about the movie and
its film technique. Hedrick Dep. at 17, Ex. 15. In response to that public in-
terest, WBEI released a DVD under the mark THE MATRIX REVISITED, a
behind the scenes look at the filming of the movie THE MATRIX. Id.
Opposition No. 91186293
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After the extraordinarily successful release of the first
movie in the MATRIX series, WBEI approved the production of a series of
nine animated short movies created as a prequel to the famous MATRIX series
of movies and initially distributed in June 2003 under the mark
ANIMATRIX. Each of the films in this series used the Japanese "anime"
style. Hedrick Dep. at 13-14. We find that the ANIMATRIX mark is an obvi-
ous play on the words "anime" or "animated" and "Matrix," which identifies
the universe in which all the stories in the animated series takes place.
Although the precise amounts have been filed under seal, the
ANIMATRIX films have resulted in tens of millions of dollars of sales in the
U.S., plus collateral merchandise has generated millions of dollars in addi-
tional royalties.
Applicant: Ms. Akke Wagenaar
Before moving to Senegal, Ms. Wagenaar was a self-styled “media artist”
living in the Netherlands. Wagenaar Disc. Dep. 11-13. She currently works for
a company she refers to as “Air Fall,” described as promoting business and
cultural connections between Senegal and The Netherlands. Id. After receiv-
ing a Bachelor of Arts degree in audio-visual art in Amsterdam (1990-92), ap-
plicant studied for a Master of Media Arts degree at the Institute for New Me-
dia (INM) in Frankfurt, Germany. Wagenaar Test. Decl. at 11; Wagenaar
Disc. Dep. at 9-10 (Plaintiff’s Notice of Reliance, Ex. 1). During that time,
Wagenaar learned to design and program computer graphic animations. Id.
Opposition No. 91186293
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Between 1991 and 1996, Wagenaar created seven works of computer graphic
art. Id. The titles of these works are: “Automated Animations I,” “Automated
Animations II,” “25 Objects Meet,” “7 Objects Meet,” “Animatrix,” “5Animals:
Tiger,” and “VBody RBody.” Id.
The single audio-visual work that Ms. Wagenaar called “Animatrix” was
created in 1993. Id. at 14-15, 18. According to Ms. Wagenaar, this is a
“computer graphics animation work" consisting of seven moving arms, each
consisting of 18 elongated or flattened pink spheres, all fixed at two shoulder
points, and whose movements were otherwise restricted to normal arm and
hands movements.” Id. at 14:9-20. The work included music that played
while the arms were moving. Viewers could use a joystick at the art shows to
alter the movements. Id. at 14, Ex. A013. Ms. Wagenaar describes her “Anima-
trix” work as a “computer dancer reminiscent of Bodhisattva, a Buddhist
creature.” Id. Ex. B003; Hitt Dep. at 14-15, Ex. 40.
In fact, Ms. Wagenaar consistently refers to the “Animatrix” as a “work
of art,” and even tried to register it as a trademark. Ms. Wagenaar states that
she exhibited her “Animatrix” art work years ago at computer art shows. The
work was first shown in 1993 at Ars Electronica, a computer art festival (Linz,
Austria). Wagenaar Test. Decl. at 18. The second showing, and the only showing in
the United States, was at a computer graphics conference called SIGGRAPH ACM
in 1993 (Anaheim, California). Id. Ms. Wagenaar states that she showed her work
in Canada and Europe in 1994 and she admitted that the last exhibition was seven-
Opposition No. 91186293
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teen years ago at the Dutch Cultural Center in Munster, Germany (1995). Id. She
states that images showing her work have been included in various art text
books and art archives in Europe, Japan, Canada, and the United States. Id. at
18-21.
Between 1995 and 1996, Ms. Wagenaar created a website where she placed an
excerpt of her “Animatrix” work. Id. at 35, and Ex. A011-015. The site shows
an image of the moving arms. The website is a static piece, and hence unlike the
exhibit she displayed in Anaheim, the viewer of the website cannot use a joystick
to alter the movement of the image. Wagenaar Disc. Dep. at 51.
After adding her “Animatrix” work to the website in 1995 or 1996, Ms.
Wagenaar admits that she never changed the work shown on the site. The
website has been hosted on several different servers linked to distinct domain
names, but the content has remained unchanged since it was first posted. Wagenaar
Disc. Dep. at 47-48. Thus, the portion of Ms. Wagenaar’s website featuring the
single work entitled “Animatrix” has never changed since 1995, and the artwork
looks the same today as when she first added it to the website. Wagenaar Test.
Decl. at 35; Wagenaar Disc. Dep. at 47-48.
On applicant’s website, the term “Animatrix” is never used as a mark to iden-
tify the source of any goods or services. Wagenaar Test. Decl. at Ex. A001-
A028. Rather, “Animatrix” is used as the name of a specific work of art. The
term appears in a list of her other works, with the same prominence as the
names of other works of art. Id. at Ex. A014. In the section of the website re-
Opposition No. 91186293
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ferring to the “Animatrix” computer graphics animation, the term “Animatrix”
appears on the first page, under her name, but in a smaller font, to identify
the specific work. Id. at Ex. A011. In other places on the website, the word
“Animatrix” is always used as a noun, namely, as the title or name of the mov-
ing arms or “computer dancer” created by Wagenaar, and never as a mark
identifying the source of any goods or services. Id. at Ex. A013. Indeed, Ms.
Wagenaar states that she used “[Animatrix] in connection with the specific
interactive installation and I used it in connection with the documents I put
on my website about these specific computer graphics animations.” Wagenaar
Disc. Dep. at 19.
At the beginning of 2003, Ms. Wagenaar claims to have seen an adver-
tisement for WBEI’s soon to be released ANIMATRIX series of animated
movies. Id. at 70. However, she did not object to WBEI’s use of ANIMATRIX
nor did she assert that she had any trademark rights at that time. Instead,
she waited until September 2006, more than three years after she first became
aware of WBEI’s ANIMATRIX, before filing a U.S. trademark application and
sending WBEI a cease and desist letter. Id. at 73, Ex. C. In that letter, appli-
cant’s counsel demanded that WBEI immediately discontinue any use of
ANIMATRIX, and give an accounting of all profits derived from the sale of
the DVD or any other use of ANIMATRIX. Wagenaar Disc. Dep. at Ex. C;
Hedrick Dep. at 10-11, Ex. 7. Ms. Wagenaar claimed that WBEI’s use of the
mark ANIMATRIX was infringing her alleged rights in the work of art that
Opposition No. 91186293
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she called “Animatrix.” The attorney referred to his client as a “Dutch media
artist,” and admitted that “Animatrix” was merely the title of a single work of
media art, namely, an interactive computer graphics installation created in
1993. Id.
The letter did not allege that Ms. Wagenaar had ever used “Animatrix” as
anything other than the title of a single work of art, and never alleged that
Ms. Wagenaar had used “Animatrix” as a trademark or service mark in con-
nection with the sale of any product or service. Id.
Despite Ms. Wagenaar’s obvious lack of trademark rights in the title of
her artwork, the cease and desist letter stated that Ms. Wagenaar had filed a
trademark application for the alleged mark ANIMATRIX. In the letter, Ms.
Wagenaar’s attorney claimed that WBEI’s use of ANIMATRIX in connection
with its series of animated films infringed Ms. Wagenaar’s alleged “common
law rights” in “Animatrix.” Id. Through her attorney, Ms. Wagenaar de-
manded that WBEI immediately cease any use of its allegedly confusingly
similar mark ANIMATRIX and provide an accounting of all revenues derived
in the past three years from any sales. Id. The letter threatened further le-
gal action if WBEI did not promptly comply with Ms. Wagenaar’s demands.
Id. Despite the fact that WBEI acquired prior common law rights by using
ANIMATRIX as a trademark, Ms. Wagenaar claimed that her prior use of
“Animatrix” as the title of a single work of art supported her demand for a
monetary payment from WBEI. See Wagenaar Disc. Dep. at 74.
Opposition No. 91186293
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In April 2007, WBEI sent a reply letter to Ms. Wagenaar’s attorney, re-
jecting the claim that Ms. Wagenaar had any rights in her alleged “Anima-
trix” title, and inquiring as to why Ms. Wagenaar had waited over three years
after the release of WBEI’s series of ANIMATRIX films before objecting, espe-
cially since there was no actual confusion evidence. Id. at 11, Ex. 8. After Ms.
Wagenaar’s application was published for opposition WBEI filed a timely no-
tice of opposition on the ground that applicant had merely used “Animatrix” as
the title of a single work of art, that she never established any source-indicating
rights in that term, and WBEI would be damaged by the issuance of a registra-
tion.
Ms. Wagenaar first applied to register the term “Animatrix” on Sep-
tember 21, 2006, for a “device for recording, transmission and/or reproduction of
sound and/or images and/or computer graphics; animation films; computer
programs; computer games; magnetic data carriers; disc shaped sound and/or
image carriers; electronic publications.” When that application was refused on
Section 2(d) grounds, Wagenaar abandoned the application.
However, on July 30, 2007, Ms. Wagenaar filed a second application to
register the term “Animatrix” as a service mark. This application, which is
the basis for this proceeding, is based on use in commerce. This application
was based on services that are obviously different than the goods listed in
the prior application because, as Ms. Wagenaar states, her lawyers told her
Opposition No. 91186293
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that “You can't register a single artwork.” Wagenaar Disc. Dep. at 64. This se-
cond application she filed pro se. Id. at 64-65.
Standing
We find that WBEI, by virtue of its common law rights arising from use
of the ANIMATRIX mark on a series of films has established a real interest or
standing to challenge the involved application. No more is necessary for
standing. See Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185 (CCPA 1982).
Is Ms. Wagenaar’s application void ab initio?
In short, the evidence of record convinces us that despite Ms. Wagenaar’s
claim that her alleged mark was in use in commerce in connection with the
services identified in the application, she never used the term “Animatrix” to
identify and distinguish any of the services listed therein prior to the filing
date of the involved application. Accordingly, her use-based application is void
ab initio, and we hereby sustain this opposition.
The Lanham Act “requires not only the display of the mark in the sale or
advertising of services but also the rendition of those services in order to con-
stitute use of the service mark in commerce.” Intermed Commc'ns, Inc. v.
Chaney, 197 USPQ 501, 507-08 (TTAB 1977).
Ms. Wagenaar was unable to produce any evidence that she has ever
used or displayed “Animatrix” in the advertising or sale to others of the pro-
duction of computer graphics animations. During discovery, Ms. Wagenaar ad-
Opposition No. 91186293
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mitted that the phrase “the production of computer graphics animations” in her applica-
tion merely refers to the creation of her own single work of art entitled “Animatrix.”
Wagenaar Disc. Dep. at 52-53. She also admitted that her only “sale” of services in the
United States using the term “Animatrix” was her exhibition of the interactive installa-
tion entitled “Animatrix” at the SIGGRAPH Conference in Anaheim in August 1993.
Wagenaar Interrog. Answer Nos. 7, 23, 26, 31. Later she conceded that the organizers
of the conference merely invited her to exhibit her single work of art without any fee at
this conference, and then reimbursed her lodging, travel expenses and equipment rental
costs. Wagenaar Disc. Dep. at 53-54. These admissions confirm that Ms. Wagenaar
never engaged in the sale of the “production of computer graphics animations” for oth-
ers.
Furthermore, Ms. Wagenaar was unable to produce any evidence that she ever
used or displayed the term “Animatrix” in connection with the advertising of any
services. The record shows a copy of Ms. Wagenaar’s website that has not
changed since 1995. However, this site contains no advertisement for, or offer to pro-
vide, the production of computer graphics animations for others. There is no description of
any such services, no price list, and no contact information through which any potential
customer could order the production of computer graphics animations.
Secondly, Ms. Wagenaar never produced any evidence that she ever used
or displayed the term “Animatrix” in the sale or advertising of “conducting en-
tertainment exhibitions in the field of computer graphics animations” (either
before or after the filing of her application). She failed to produce any evi-
Opposition No. 91186293
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dence that she ever organized an exhibition for others in the field of com-
puter graphics animations. As seen earlier, Ms. Wagenaar only displayed
her single work entitled "Animatrix" at the SIGGRAPH Conference in Au-
gust 1993. Wagenaar Interrog. Answer. No. 31. However, the mere display of
one’s own work of art does not constitute providing a service to others.
Finally, Ms. Wagenaar failed to produce any evidence that she used the
term “Animatrix” in connection with the “providing of information about com-
puter graphics animation” before or after the filing of her application.
To prove that the alleged mark has been used in connection with the
providing of “information about the field of computer graphics information,”
Ms. Wagenaar was obligated to show that she had provided such information
to others. Again, the only evidence of record is her own website, which dis-
plays the term “Animatrix” in reference to her single work of art. However,
that site contains no information whatsoever about the field of computer
graphics information. The site does not convey any information as to the mean-
ing of the term, or as to the history of the field, or as to the manner in which
an animated work of art is created, or as to the names of anyone who has es-
tablished a reputation in this field. She admitted that the inclusion of the
term “providing information” in the recitation of services was intended only to
refer to the display of her own single work of art.
Having found that the involved application is void ab initio, it is unnec-
essary for us to reach opposer’s alternative claims, namely, that applicant
Opposition No. 91186293
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abandoned any rights that she may have ever possessed in the term “Anima-
trix,” and that applicant committed fraud in procuring her trademark regis-
tration by knowingly making false, material representations of fact in con-
nection with her application.
Decision: Opposer is entitled to prevail in this proceeding inasmuch as
the involved application is void ab initio, the opposition is sustained, and reg-
istration to applicant is hereby refused.