TTAB Denies "DISORDERLY FASHION" Nonuse Cancellation Petition: It's Hard to Prove a Negative

The Board tossed out Avalon Apparel's petition for cancellation of Brandon R. Kilson's registration for the mark DISORDERLY FASHION (in standard characters, FASHION disclaimed) for “Clothing, namely, neck warmers; Belts; Bottoms as clothing; Coats; Headwear; Hooded sweatshirts; Jackets; Shoes; Tops as clothing." Avalon claimed nonuse, abandonment, and fraud, but its proofs were, in a fashion, disorderly. Kilson, appearing pro se, did not submit evidence or testimony, nor did he file a brief, but his rope-a-dope approach proved to be successful. Avalon Apparel, LLC v. Brandon R. Kilson, Cancellation No. 92080171 (January 30, 2025) [not precedential] (Opinion by Judge Martha B. Allard).

More particularly, Avalon claimed "(1) nonuse of the mark as of the filing date of the statement of use of the subject registration’s underlying application; (2) abandonment based on nonuse of the mark in commerce for a period of more than three consecutive years, without an intent to resume use; and (3) fraud."

Nonuse: Avalon focused on Kilson's specimen of use, claiming that it failed to show technical trademark use, "but rather [is] what appears to be a business card and a sticker PLACED on a garment for the purposes of taking the photograph submitted to the USPTO." The Board was unimpressed:

While these possible defects in the specimens could ultimately lead to evidence to support Petitioner’s nonuse claim, the problem is that, without more, such as deposition testimony establishing that [the] mark was not in use on the identified goods at the time the statement of use was filed, Petitioner’s arguments seeking to discredit the specimens is not sufficient to establish nonuse.

Abandonment: To prove the nonuse element of abandonment, Avalon submitted the testimony of its own counsel on two topics: (1) Kilson’s failure to respond to certain discovery requests, and (2) counsel's own investigation into Kilson’s use of the mark.

Avalon argued that "a reasonable inference to be drawn from Kilson's failure to respond to interrogatories and production requests is that he has no evidence of use.” Again, the Board was unmoved: "for us to draw any conclusions about Respondent’s failure to respond to Petitioner’s document requests and interrogatories, Petitioner must have filed a motion to compel their responses." [Note: Avalon did not serve requests for admission - ed.]

As to the investigation, Avalon's counsel testified that he conducted searches of various state (Pennsylvania) and local (Philadelphia) records and found no reference to Kilson or his business. Avalon again argued that this lack of evidence "is sufficient to create a rebuttable presumption that Respondent has abandoned its rights in the DISORDERLY FASHION Mark." Not good enough, said the Board:

As an initial matter, these searches are insufficient to establish a prima facie showing of abandonment because there is no evidence that Respondent is required to register his mark with any of these local or state agencies/entities whose databases Petitioner searched.

Moreover, each search was conducted on the same day, i.e., on or about March 13, 2024, and so they failed to show that Kilson did not use his for the identified goods for a period of at least three consecutive years.

Avalon's counsel also testified that Kilson did not obtain a Federal Trade Commission (FTC) Registration Number (“RN Number”), and that "this is the type of database that may show historical filing information and, as a result, may show filings made over three years ago." The Board, however, took judicial notice of the FTC's FAQ page, which states that an RN number is not required.

After consideration of all of Petitioner’s evidence, we find that the evidence does not establish Respondent’s nonuse of his mark for a three-year period or that Respondent otherwise discontinued use of his mark with no intent to resume use.

Fraud: Since Avalon failed to show that the statements made in Kilson’s statement of use were false, let alone made with the intent to deceive the USPTO, the claim of fraud failed.

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TTABlogger comment: Absent admissions by the other side, you usually have to take testimony to prove nonuse and/or intent not to resume use.

Text Copyright John L. Welch 2025.