TTAB Denies Section 2(d) Cancellation Petition due to Unconvincing Testimony Regarding Priority
The Board rejected this Section 2(d) petition for cancellation of a registration for the mark OH. in the stylized form below, for various cosmetics and personal care products. Openly Human claimed likely confusion with its registered marks OH and OH OPENLY HUMAN for “body spray used as a personal deodorant and as a fragrance.” The petition failed because Openly Human failed to prove priority of use. Openly Human, LLC v. B. Cosmetics S.R.L., Cancellation No. 92078800 (March 11, 2025) [not precedential] (Opinion by Judge Robert H. Coggins).
Respondent conceded that a likelihood of confusion exists and acknowledged that "[t]his case hinges on priority – who used the OH logos ... first." Of course, in a 2(d) cancellation proceeding in which both parties own a registration, priority is at issue.
Respondent established a first use date of December 15, 2018. In its filings, Petitioner asserted multiple dates of first use in 2018: January 21, January 26, as of March, April 20. In his testimony, Petitioner's CEO referred to April 11, April 20, and April 22.
Sifting through the evidence of record, as we must when piecing together Petitioner’s priority puzzle, W. Fla. Seafood, 31 F.3d at 1125-26, we . . . find multiple unexplained inconsistencies and contradictions within Mr. Kent’s testimony and between his testimony and Petitioner’s public statements on social media posts of record.
Petitioner's social media posts were particularly troublesome. For example, on April 26, 2019, “Just a month or so from launch now! Woo hoo!” And on September 25, 2019, “[o]ur first production run is almost ready. It’s been nearly 2 years and so many iterations to create the best natural, vegan spray deodorant in the cosmos!”
Although Respondent raised in its brief the contradictions and inconsistencies in Petitioner’s testimony and between the testimony and the documentary evidence of record, Petitioner failed to address these issues in its rebuttal brief – and the silence is significant. Petitioner relies on a January 2018 sale for its priority, but never explains (or even expresses indirectly) how it seemingly developed one product – just one unit – to ship three months later, but did not have a single other unit to ship to consumers for another 14 or 18 months while the record shows its products were still being formulated.
Although the testimony of a single witness may suffice to prove priority, it "should not be characterized by contradictions, inconsistencies, and indefiniteness but should carry with it conviction of its accuracy and applicability." Here, the testimonial declarations were "quite short, imprecise, and internally inconsistent," and did not address the "glaring contradiction between the purported first sale of a single product (that appears to not have even been developed at that time) and Petitioner’s repeated social media statements that it had not yet launched its products, which were still in development." As a result, the testimony had little persuasive value.
The Board concluded that Petitioner failed to prove priority by a preponderance of the evidence, and so the petition for cancellation was denied.
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TTABlogger comment: OH well! Better to get your story straight in the first place. But then, petitioner didn't have much of a story.
Text Copyright John L. Welch 2025.