Opposer's Vague Testimony Fails to Establish Priority, TTAB Dismisses 2(d) DITA Opposition
Judith Mendez a/k/a Dita de Leon filed an opposition to registration of the mark DITA for jewelry, leather goods, and clothing, alleging likelihood of confusion with her previously used, identical mark for jewelry, clothing, and leather goods. To prove priority of use, she relied exclusively on her own testimony, but the Board found it to be vague and general, and lacking in specificity. And so it dismissed the opposition. Judith Mendez v. Dita, Inc., Oppositions Nos. 91167828 and 91170265 (March 8, 2012) [not precedential].
Of course, priority is a necessary element in proving likelihood of confusion. Applicant was entitled to rely at least on the filing date of its applications, namely, October 28, 2004.
The Board pointed out that oral testimony, even of a single witness, may be enough to establish priority if the testimony is "sufficiently probative." The testimony must carry a "conviction of its accuracy and applicability."
Here, Opposer claimed that she used the mark DITA "as early as the 1980s," but her testimony was "vague and indefinite." She claimed to be a "child prodigy" who at a young age was "already considering myself a business woman" even when she was 10 years old. She estimated her total income from jewelry sales from 1985 to 2005 to be "Under 10,000 maybe." Likewise as to clothing sales during that period, she did not have an exact number, "But I know it's not more than 10,000."
On cross-examination, Opposer became even less definite, and also evasive and combative. [The transcripts were "replete with irrelevant bickering and involve personal attacks."] When asked for unit sales and income amounts she responded "I'm not going to guess" or simply that she could not recall. Nor could she identify any suppliers.
Opposer claimed that her lack of evidence was due to the number of years that passed between 2004 and the taking of her testimony in 2009 and 2010. But she could not provide evidence or documentation even for the two years prior to her testimony.
The Board ruled that Opposer had failed to prove by a preponderance of the evidence that she was using the mark DITA prior to Applicant's filing date. It therefore dismissed the opposition.
TTABlog comment: WYHO? Would you have opposed in this situation?
Text Copyright John L. Welch 2012.