TTAB Dismisses STATUS SYMBOL Section 2(d) Opposition: Failure to Prove Priority

Opposer Status Symbol Clothing claimed that the applicant's mark STATUS SYMBOL (Stylized) for clothing and footwear is likely to cause confusion with opposer's common law mark STATUS SYMBOL CLOTHING for various clothing items. The applicant neither submitted evidence or testimony, nor filed a brief. However, the applicant prevailed. Status Symbol Clothing Brand LLC v. Status Symbol LLC, Opposition No. 91264572 (December 12, 2022) [not precedential] (Opinion by Judge Martha B. Allard).

To prove priority, opposer had to show that it used its mark in connection with its pleaded goods prior to April 10, 2020, the applicant's filing date and constructive first use date. Opposer pointed to its pending application for its mark - which stated a first use date in 2018 - and the accompanying specimen of use. However, the Board observed, "it is well-settled that the allegation of a date of use of a mark made in an application or registration is not evidence in the proceeding on behalf of the applicant or registrant and the specimen in the application or registration, without more, is not evidence on behalf of the applicant or registrant." See Trademark Rule 2.122(b)(2).

Opposer next pointed to its Facebook posts, its website printouts, and its corporate formation documents. The Facebook documents stated that the page was created in 2017, but there was no testimony that this Facebook page is owned and controlled by Opposer, or that the creation date and posts dates are accurate. Therefore the documents cannot be used prove the truth of the statement made therein.

As to the website screenshots, there was no accompanying testimony attesting to the truth of the matters contained therein - for example, no testimony that Opposer is the owner of the website or that the mark displayed on the website was used before Applicant’s filing date.

The corporation formation documents "serve merely to identify Opposer as a business entity and do not show trademark use, much less on a date prior to Applicant’s filing date."

Opposer offered the testimony of its CEO, but his testimony and accompanying exhibits were too vague and confusing to be probative.

And so, the Board found that the opposer had failed to prove priority, and it dismissed the opposition.

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TTABlogger comment: Sheesh! Should the opposer file an appeal by way of civil action, where it can add evidence?

Text Copyright John L. Welch 2022.