TTAB Orders Cancellation of EDGE GAMES Registration Due to Nonuse, Rejecting Founder's Testimony

In a rare case in which a party proved a negative, the Board granted Mobigame's petition for cancellation of a registration for the mark EDGE GAMES for computer game software, on the ground of nonuse. The Board found that the case "ultimately . . .turns on the answer to a simple question: do we believe the testimony of Dr. Timothy Langdell, the CEO of Respondent Edge Games, Inc., that Respondent used the mark EDGE GAMES on or before the date it filed the use-based application that matured into the challenged registration?" The answer was "no." Mobigame v. Edge Games, Inc., Cancellation No. 92075393 (October 30, 2025) [not precedential] (Opinion by Judge Thomas L. Casagrande).

The CAFC has acknowledged that "proving nonuse is essentially 'prov[ing] a negative,' which can be challenging, . . . [but] 'direct evidence' is not required: it is perfectly appropriate to rely on 'proper inferences' from indirect evidence."

Where the testimony of use comes only from an interested witness “testifying long after the events happened …, such testimony … should be most carefully scrutinized” to make sure it is reliable. B.R. Baker Co. v. Lebow Bros., 150 F.2d 580, 583-84 (CCPA 1945). The testimony should not be “characterized by contradictions, inconsistencies and indefiniteness,” but rather should carry with it “conviction of its accuracy and applicability.”

Mobigame relied on circumstantial evidence to show that Respondent did not use the mark before filing its application: prior enforcement litigation and other assertions regarding various EDGE marks of Respondent, but never the mark EDGE GAMES; testimony from Mobigame's CEO and founder that he was unaware of any use by Respondent of EDGE GAMES as a mark prior to the filing date of Respondent’s underlying application (October 7, 2010); and Respondent's filing of that application on the day after it agreed to a the stipulated judgment cancelling its EDGE registrations.

The clear inference we draw from this circumstantial evidence is that before October 2010, Respondent never considered EDGE GAMES a trademark—and never used it as such.

In rebuttal, Respondent relied solely on the testimony of its CEO, Dr. Langdell, but the Board found his testimony to be "wholly unreliable."

He testified repeatedly that his memory of events prior to 2010 is weak, or nonexistent. His testimony about whether, as CEO of Respondent or its predecessor, he worked with any other corporate officers is both contradictory and simultaneously vague. He was evasive, nonresponsive, and argumentative during his two depositions in this case. And, while this case was pending and in the trial period, he lied to the USPTO in filing his combined Section 8/15 Declaration for the very registration at issue here.

Reviewing past rulings by the Board and various courts involving Dr. Langdell, the Board saw "an astoundingly abysmal record of disregard and contempt for the solemnity and integrity of government adjudicatory proceedings involving Respondent’s trademarks, and repeated instances of untruthfulness in such cases on the part of Dr. Langdell." From these rulings, the Board drew "a level of comfort" that its decision to reject Dr. Langdell’s testimony about pre-filing use "is not an outlier."

In sum, the Board found "no credible evidence in the record that Respondent, prior to filing its application, used EDGE GAMES as a trademark" for computer game software. It therefore ruled that Mobigame had proven its nonuse claim by a preponderance of the evidence, and so it granted the petition for cancellation.

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TTABlogger comment: In proving the negative, taking the deposition of Dr. Langdell was crucial. Compare the recent FAT KATZ case, TTABlogged here.

Text Copyright John L. Welch 2025.