Friday, July 06, 2007

Opposer Fails to Introduce Evidence of Priority, So TTAB Tosses Out Opposition

Opposer Peace Mountain's Section 2(d) opposition to registration of the mark QUENCH HOLLYWOOD MIRACLE DIET WATER went right down the drain when Opposer failed to submit any evidence prior to the close of its testimony period. Applicant Sunset Health admitted in its answer that Opposer owns various federal trademark registrations for the marks DIET WATER and MIRACLE JUICE, but it denied the allegation that "[s]ince prior to November 2003, Opposer has had valid and enforceable rights in and to its DIET WATER mark." Opposer therefore failed to establish priority of use, and so the Board dismissed the proceeding. Peace Mountain Natural Beverages Corp. v. Sunset Health Prods., Inc., Opposition No. 91167165 (June 25, 2007) [not precedential].

Neither party took testimony or filed a notice of reliance. Opposer attached various exhibits to its brief at final hearing, including a DIET WATER label and a photocopy of its DIET WATER registration, but that evidence was improperly submitted because "[a] brief may not be used as a vehicle for the introduction of evidence." See, inter alia, TBMP Section 801.01 (2d ed. rev. 2004). See also Rule 2.122(d)(2) regarding the proper submission of a registration owned by a party.

Opposer offered no testimony or other evidence during its testimony period, and there was no evidence which was properly of record on behalf of Opposer, other than Applicant's admission regarding Opposer's ownership of the registrations (as well as an admission that Applicant is "currently selling" its products).

Applicant specifically denied that "[s]ince prior to November 2003, Opposer has had valid and enforceable rights in and to its DIET WATER mark." That denial "encompasses whether such registration is subsisting in addition to any common law rights which opposer may possess in the mark."

"Therefore, in order for priority not to be in issue with respect to its claim of priority of use and likelihood of confusion, it was incumbent upon opposer to prove that the current status of its pleaded registration for the mark 'DIET WATER' is that such registration is subsisting and not merely, as applicant has admitted, that such registration is currently owned by opposer."

Because Opposer bore the burden of proof and failed to establish priority, the Board dismissed the opposition.

Text Copyright John L. Welch 2007.


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