No Evidence of Priority, So TTAB Dismisses NEAU Coffee Opposition

In this train wreck of an opposition, the Board dismissed Opposer's Section 2(d) claim based on alleged likelihood of confusion between applicant's mark NEAU COFFEE and opposer's common law marks NEAUX and NEAUX COFFEE COMPANY, both for coffee. Opposer failed to introduce any evidence to show its entitlement to bring the opposition, but applicant's evidence established that Opposer is in the business of selling coffee under the pleaded marks "and is more than a mere interloper." Opposer then tripped over the requirement to prove priority. Neaux Coffee LLC v. NEAU Brands, Inc., Opposition No. 91284466 (May 21, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

Under Section 7(c) of the Act, applicant may rely upon the filing date of its application (March 14, 2022) as a constructive use date for purposes of priority. "Put plainly, it was Opposer’s burden to prove by a preponderance of the evidence that it acquired common law rights in its pleaded marks based on use of those marks prior to March 14, 2022."

Although opposer introduced no evidence, applicant submitted Internet materials regarding opposer’s use of its marks. The Board, however, found that those materials, sufficient to prove opposer's standing, were insufficient to prove opposer's priority.

We cannot rely on any purported dates within those materials inasmuch as they are merely screenshots from websites and, without supporting testimony, any statements made in these materials or the websites are hearsay and not reliable for their truth. “Internet evidence is only admissible for what it shows on its face, and because it does not fall within an exception to the hearsay rule, will not be considered to prove the truth of any matter stated therein. * * * Indeed, Opposer, objected to Applicant’s evidence on this very basis, namely, that statements made within the materials constitute hearsay

Because opposer failed to submitted evidence that it owns “a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States,” the Board dismissed its Section 2(d) claim.

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TTABlogger comment: By submitting the Internet evidence, did applicant make an admission against interest regarding the contents thereof? Will the opposer seek review by way of civil action under Section 1071, during which it can submit (additional) evidence?

Text Copyright John L. Welch 2026.