TTAB Allows Amendment of Admission Responses but Grants Motion for Summary Judgment for Lack of Bona Fide Intent

The Board granted Opposer Champion's motion for summary judgment, finding that Applicant Derek Buzak lacked a bona fide intent to use the proposed mark I FEEL LIKE A CHAMPION "Sports shirts" as of his filing date. Buzak provided no documentation showing "any concrete steps taken or plans made to actually use his mark contemporaneous with filing his involved application," and there was no explanation as to how he had the capacity to produce the identified goods. ABG-Champion LLC v. Derek Buzak, Opposition No. 91288945 (July 23, 2025) [not precedential].

Admissions: Champion based its summary judgment motion in part on Applicant Buzak’s failure to respond to requests for admission, resulting in automatic admission by operation of Fed. R. Civ. P. 36(a). Buzak asserted that his "counsel has no record of having received Opposer’s First Requests for Admissions” and that “Applicant had previously served an Answer to the Opposition, served Initial Disclosures, served Responses to Requests for Production, and served Answers to Interrogatories."

Buzak then requested leave to serve answers to the Requests for Admission pursuant to Fed. R. Civ. P. 36(b), stating that "Opposer will not be prejudiced by the granting of such a request, and that the granting of the request would be consistent with the preference to decide cases on the merits, as well as traditional notions of fairness." Moreover, it asserted that the admissions "are contradicted by the evidence, and should not be relied on for purposes of deciding whether entry of summary judgment is appropriate." The Board noted that the Federal Rules of Civil Procedure emphasize the importance of resolving actions on the merits whenever possible.

[T]here is a two-prong test for allowing withdrawal or amendment of admissions: the presentation of the merits of the action will be subserved thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action on the merits.

With respect to the first prong, the Board found that the merits of the action would be served by allowing amendment because, "if withdrawal of the deemed admissions is not allowed, Applicant will be held to have admitted dispositive facts that it otherwise disputes."

As to the second, the Board pointed out that "'prejudice' is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth, but rather, relates to the special difficulties a party may face caused by the sudden need to obtain evidence upon withdrawal or amendment of admission." Champion pointed to "no particular prejudice in the form of special difficulties it has faced in its need to obtain evidence."

And so, the Board granted Buzak's motion to withdraw or amend his admissions.

Turning to the substantive issue, Buzak failed to produce any documentary evidence showing an intent to use his mark in commerce. It was then incumbent upon Buzak to come forth with evidence to explain his lack of documentary evidence. He didn't.

Of course, the filing of the involved application did not itself establish a bona fide intent to use the mark. Buzak's statement, through counsel, of his intent to use his mark and his denial that he lacked a bona fide intent -- "both unsworn and entirely lacking in factual detail -- are insufficient to raise a genuine dispute of material fact regarding Applicant’s bona fide intent to use a mark."

In sum, Buzak "failed to establish that a genuine dispute of material fact exists as to whether Applicant had the requisite bona fide intent to use his mark on the identified goods as of that filing date." And so, the Board sustained the opposition.

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TTABlogger comment: The Board did not reach Champion's Section 2(d) claim, which was founded on its registrations for the marks CHAMPION, BE YOUR OWN CHAMPION, and IT TAKES A LITTLE MORE TO MAKE A CHAMPION. How do yo think that claim would have turned out?

Text Copyright John L. Welch 2025.