Opposer Fails to Submit Evidence: TTAB Dismisses for Failure to Prove Statutory Standing

The Board dismissed this opposition to registration of the mark FABTAH for various cosmetics products because Opposer Marie Junie St. Clair Bernard failed to prove her entitlement to a statutory cause of action (a/k/a statutory standing). Opposer alleged that she owns common law rights to the identical mark for cosmetics, and that her application to register was blocked by Applicant Lagredelle's prior-filed application. However, Opposer failed to properly submit any evidence. Marie Junie St. Clair Bernard v. Daphnee Lagredelle, Opposition No. 91289395 (September 30, 2025) [not precedential] (Opinion by Judge Elizabeth K. Brock).

Opposer attached to her notice of opposition a TSDR printout of her pending application, a TSDR printout of an abandoned use-based application, screenshots of her website, and documents purporting to show use of her mark some two years prior to applicant's filing date. However, Opposer did not submit any evidence during her trial period.

We all know that a plaintiff must prove entitlement to a statutory cause of action: i.e., an interest falling within the zone of interests protected by the statute, and proximate causation. 

None of the documents attached to the notice of opposition constituted evidence. Except for a pleaded registration, evidence may not be made of record at the pleading stage. See Trademark Rule 2.122(c),(d), 37 C.F.R. § 2.122(c),(d); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 317 (2025).

The Board noted that "the filing of an application for a trademark that is identical to Applicant’s applied-for mark for legally identical goods may be a basis for establishing Opposer’s entitlement."

[H]owever, Opposer did not properly introduce her pending trademark application into the evidentiary record to prove her allegation of ownership of a pending trademark application. Accordingly, Opposer has failed to establish entitlement on this basis.

The Board also (foot)noted that Opposer did not properly introduce her abandoned application, "but even if she had, it would have been of very limited probative value for proving entitlement."

Likewise, as to her alleged common law rights, Opposer failed to submit any evidence.

And so, the Board dismissed the opposition.

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TTABlogger comment: Could opposer cure the problem via a civil action for review under Section 1071?

Text Copyright John L. Welch 2025.