YOUNG v. LOCKSMITH CENTRAL, INC., 91192742 (TTAB 10-26-2011)

Michael D. Young, d/b/a Locksmith Central v. Locksmith Central, Inc.

Opposition No. 91192742 to application Serial No. 77468783filed on May 8, 2008United States Patent and Trademark OfficeTrademark Trial and Appeal Board
Mailed: October 26, 2011Page 1

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Michael D. Young, pro se.

Michael D. Mahon for Locksmith Central, Inc.

Before Quinn, Taylor and Lykos, Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:

On June 8, 2008, Locksmith Central, Inc. (“applicant”) filed an application to register the mark LOCKSMITH CENTRAL in standard character format, for “locksmithing, namely, opening of locks” in International Class 45.[fn1]

Michael D. Young, d/b/a Locksmith Central (“opposer”) opposed the registration of applicant’s mark on the grounds ofPage 2
(1) priority of use and likelihood of confusion under Section 2(d) of the Trademark Act of 1946,15 U.S.C. ? 1052(d), with opposer’s previously used LOCKSMITH CENTRAL and marks; (2) mere descriptiveness pursuant to Section 2(e)(1) of the Trademark Act,15 U.S.C. ? 1052(e)(1),; and (3) genericness pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. ? 1052(e)(1).[fn2]
Applicant, in its answer, denied the salient allegations in the notice of opposition.

I. Evidentiary Issues

Opposer, during his assigned testimony period which closed on October 25, 2010, did not submit any evidence. Rather than moving for involuntary dismissal under Trademark Rule 2.132(a), applicant, on the last day of its testimony period, filed a declaration executed by Robert E. Bradley, “owner and operator” of applicant, with exhibits attached thereto (“Bradley Declaration”). On January 10, 2010, opposer filed an objection to the Bradley Declaration on several grounds, including that “the declaration is not testimony under the rules of this tribunal.” Opposer then filed “rebuttal testimony” on FebruaryPage 3
2, 2011, which consisted of a declaration executed by opposer. In addition, opposer submitted copies of the interrogatories propounded by opposer during discovery and applicant’s answers thereto. Opposer filed his main brief on March 4, 2011. Applicant did not file a brief on the case.

First, we will consider opposer’s objection to the Bradley declaration. Absent a stipulation or motion approved by the Board, a party may not submit evidence during its testimony period by way of declaration; rather such evidence must be submitted by testimony deposition. Trademark Rule 2.123(b).See Tri-Star Marketing LLC v. Nino Franco SpumantiS.R.L., 84 USPQ2d 1912, 1914 (TTAB 2007) (declaration cannot be submitted in lieu of testimony deposition absent a stipulation of the parties). As such, opposer’s objection is sustained.

Turning now to opposer’s submissions during his rebuttal testimony period, we note that opposer’s declaration is improper for the same reasons explained above. In addition, opposer’s interrogatories and answers thereto were improperly introduced. Interrogatories and answers thereto may be made of record by notice of reliance or by way of a testimony deposition. See Trademark Rule 2.120(j)(3). In addition, opposer’s submissions constitute improper rebuttal. During a plaintiff’s rebuttal testimony period, the plaintiff may introduce evidence and testimony to deny, explain, or discredit facts and witnessesPage 4
adduced by the defendant. Evidence is improper rebuttal, however, where it does not serve to do the above, but rather where it relates to a witness and facts that might appropriately have been introduced during the party’s case-in-chief. Western Leather Goods Co. v. Blue Bell,Inc., 178 USPQ 382 (TTAB 1973). In this case, the interrogatory answers and portions of the declaration relate to the issue of priority. As such, this evidence should have been made of record during opposer’s case-in-chief. We therefore have given no consideration to opposer’s evidence submitted during his rebuttal testimony period.

II. The Record

In view of our evidentiary rulings, the record consists solely of the pleadings and applicant’s application file. See
Trademark Rule 2.122(b).

III. Standing

Standing is a threshold issue that must be proven in every inter partes case. See Lipton Industries, Inc. v. RalstonPurina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982) (“The facts regarding standing . . . must be affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely because of the allegations in its [pleading].”). To establish standing in an opposition, an opposer must show that it has a “real interest” in the outcome of the proceeding; that is, that it has a direct and personal stake in the outcome of thePage 5
opposition. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Jewelers VigilanceCommittee, Inc. v. Ullenberg Corp., 823 F.2d 490, 2 USPQ2d 2021 (Fed. Cir. 1987).

In the notice of opposition, opposer adequately asserted his standing by claiming prior common law rights in his LOCKSMITH CENTRAL and marks. Thus, the only question is whether opposer has proven his standing. As noted above, opposer has not introduced any admissible evidence regarding his asserted prior use of his pleaded marks. As such, opposer has not introduced any evidence of his standing to bring this proceeding.

In the alternative, we may look to the admissions in applicant’s answer for this purpose. However, as noted above, in its answer applicant denied all of the salient allegations of the notice of opposition. Thus, there are no admissions in applicant’s answer regarding opposer’s standing.

Opposer, as the plaintiff in this proceeding, has the burden of proof to establish, by a preponderance of the evidence, that it has standing and a ground upon which relief may be granted. Opposer’s failure to prove his standing is a sufficient basis, by itself, to dismiss the proceeding.

DECISION: Accordingly, the opposition is dismissed.

[fn1] Application Serial No. 77468783, alleging January 1, 1996 as the date of first use anywhere and in commerce. The word “LOCKSMITH” has been disclaimed.

[fn2] We note that opposer, on the ESTTA form [the ESTTA form is not a cover sheet but rather a part of the notice of opposition], checked off the box denoting “Section 2(a)” without making further allegations regarding this claim in the attached pleading. Merely checking off the ESTTA box for “Section 1(a)” does not constitute a proper pleading of a claim against an application based on Section 1(a), absent further allegations relating to the claim in the notice of opposition.Cf. Melwani v. Allegiance Corp., 97 USPQ2d 1537 (TTAB 2010).