TTAB Denies KINETIC SPORTS Cancellation Petition for Failure to Prove Abandonment and Fraud

Petitioner Perfect Arm was armed with imperfect evidence in its attempt to cancel a registration for the mark KINETIC ENERGY for elbow guards, compression wraps, and a host of other such devices. Respondent, appearing pro se, fended off claims of abandonment and fraud, aided by Petitioner's failure to cross-examine Respondent. The Perfect Arm, LLC v. Muhammed Tanveer Memon, Cancellation No. 92083488 (January 23, 2026) [not precedential] (Opinion by Judge Mark A. Thurmon).

Abandonment: To prove abandonment, Petitioner relied upon the Section 45 statutory presumption triggered by proof of at least three years of nonuse, arguing that “Respondent] keeps business records and proof of sales in a haphazard and cursory manner and is unable to show proof of sales in the three-year period starting October 20, 2020 and ending October 20, 2023.” The Board, however, pointed out that "it is not Respondent’s burden to prove use of its mark. Petitioner has the burden of proving nonuse of the mark, and yet, the evidence Petitioner submitted proves the opposite."

Petitioner argued that Respondent’s evidence should not be trusted, and that his declaration is "self-serving." [Isn't it supposed to be? - ed.]. The Board found Respondent’s testimony "credible and consistent with the documentary evidence."

We further note that Petitioner did not exercise its right to cross-examine Respondent and that Petitioner’s own evidence shows ongoing sales of the KINETIC SPORTS goods during the alleged period of nonuse. Petitioner has failed to show any cessation of use of the mark by Respondent. Because a break in use is an element of Petitioner’s abandonment claim, this failure of proof is fatal to the claim.

Although intent not to resume use was not alleged by Petitioner, the Board also found that Respondent "never intended to discontinue use" of his mark. And so, Petitioner failed to prove the second element of an abandonment claim.

Fraud: Respondent admitted that its underlying, used-based application included goods that he had not yet sold at the time of filing. The Board found that Respondent's false statement was material because "the identification of goods plays a key role in defining the rights obtained through a federal trademark registration." However, Petitioner failed to prove that Respondent had an intent to deceive the Office.

Indeed, Petitioner never obtained testimony from Respondent concerning the reason for the overly broad list of goods in the Application. Proving a misstatement, without more, is not proof of fraud. Because there is no evidence of an intent to deceive in the record, Petitioner’s fraud claim fails.

Read comments and post your comment here.

TTABlogger comment: Actually, it appears that cross-examination may not have done much good.

Text Copyright John L. Welch 2026.