Wednesday, November 15, 2006

Opposer's Failure to Introduce Evidence Leads to TTAB Dismissal of "PEACH BUNS" Opposition

In a three-page decision that was as brief as Applicant's bikinis, the Board dismissed a Section 2(d) opposition to registration of the mark PEACH BUNS for swimwear and other apparel. Opposer claimed use and registration of the mark BUNS for "underwear pants for men and women," but he failed to introduce any evidence that supported his claim. Burkard v. Ga. Peach Buns, Inc., Opposition No. 91161120 (November 1, 2006) [not citable].

Opposer relied on his registration for the mark BUNS and on portions of Applicant Ga. Peach Buns' discovery responses. Both parties submitted briefs and Applicant submitted the testimony of its founder and President.

Unfortunately for Opposer, however, his registration was cancelled under Section 8 on October 26, 2006. He did not offer any testimony, and nothing in Applicant's testimony or discovery responses supported Opposer's claim. Ergo, the Board dismissed the opposition.

TTABlog comment: The TTAB issued its decision less than one week after Opposer Burkard's registration was cancelled. Apparently the Board was "tipped off" by a letter from Applicant's President, dated October 10, 2006, and pointing out, inter alia, that Opposer had failed to file a timely response to a March 27, 2006 Office Action concerning a Section 8 declaration due for the 30th-year renewal of the pleaded registration.

Text Copyright John L. Welch 2006.


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