COLLEN - The U.S. Trademark Opposition Law Firm.  Collen has substantial experience in representing global companies in trademark opposition proceedings before the U.S. Trademark Trial and Appeal Board.

Why work with us?  Here are a few reasons:

  • Our attorneys have represented clients in several hundred U.S. trademark opposition proceedings
  • Our client list includes well-known international brands
  • We offer reasonable hourly rates and/or fixed-fee options for each phase of the proceeding
  • We are leaders in the U.S trademark industry, and our professionals have served on the Executive Committee of the International Trademark Association and the INTA Trademark Mediators Network

Here are some of the clients who have retained our services:

  • Multinational consumer brand companies
  • U.S. consumer product and service companies
  • U.S. Healthcare System and wellness companies
  • Small business owners and start-ups
  • Non-profit associations
  • Multichannel retailers

Attorneys and law firms also seek out our services to represent their own clients or provide guidance and subject matter expertise.

To speak with our attorneys about your matter, please contact James Hastings at (914) 941-5668 or email: jhastings@collenip.com

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Prevailing in a TTAB opposition proceeding against a food and beverage company proves to be sweet for the makers of Nutella.

In Ferrero S.p.A. v. Ruchi Soya Industries Limited,  Ferrero, who is the owner of the NUTELLA spread brand, opposed Applicant’s mark NUTRELA for a wide variety of food and beverage products in International Classes 29 and 30.  The Opposer relied on four registrations of NUTELLA and NUTELLA and Design for its well-known hazelnut spread, beverages, and an extensive list of meat and dairy products, as well as coffee, tea, and desserts and other food items.

In its likelihood of confusion analysis, the Board first considered if the marks NUTELLA and NUTRELLA and Design were similar in sight, sound, meaning, and commercial impression.  It concluded the differences between the marks to be insignificant, so this factor weighed in favor of a finding of a likelihood of confusion.  it then compared the NUTELLA mark and goods listed in Reg. No. 4192415 (which consisted of a large assortment of food and beverage products with Applicant’s goods, some of which were overlapping to Opposer’s goods.  While the analysis to determine whether a likelihood of confusion exists under Trademark Act 2(d) takes into account all the relevant facts in evidence, two of the key factors are similarity of the marks and similarity of the goods.   The TTAB first considered the fame of Opposer’s NUTELLA mark, as famous marks are afforded a broad scope of protection.  Based on Opposer’s evidence of widespread success, recognition and sales, the Board found that the NUTELLA mark is famous.

The TTAB next went on to assess the similarity of the parties’ respective goods.   Noting that several of the parties’ goods are legally identical, it indicated that it did not need to make the same determination for all other goods.  In other words, a similarity between the parties’ goods for a certain class will apply to all goods in that class. Moreover, where Applicant’s and Opposer’s goods are in-part identical, the TTAB presumes that the channels of trade and classes of purchasers for those goods are the same.   Based on a totality of the facts, the TTAB concluded that a likelihood of confusion existed and entered judgment in favor of the Opposer.

Editor’s Note:   If you are the Opposer in a TTAB Opposition proceeding, be sure that your evidentiary proof of sales, marketing, and advertising expenditures are introduced to ensure the support of your case.  To learn more about proving likelihood of confusion, please contact us.

No likelihood of confusion this time as the TTAB finds beer and wine to be unrelated goods.

In Justin Vineyards & Winery LLC v. Crooked Stave, LLC, Applicant Crooked Stave, LLC sought registration of the word mark HOP SAVANT, with “HOP” disclaimed, for “beer” in International Class 32.  Opposer Justin Vineyards and Winery opposed the application based on a likelihood of confusion with its preexisting registration of the mark SAVANT for wine in International Class 32.

The Board looked at the relevant Dupont factors for likelihood of confusion (13 in total), starting with the strength of Opposer’s mark.  It concluded that based on the record, Opposer’s SAVANT mark had both  conceptual and commercial strength.  Accordingly, it concluded that Opposer’s mark was inherently distinctive, having achieved at least some marketplace recognition during its nearly twelve years of use.  With regard to the similarity of the marks, the Board also opined that both parties’ mark included the identical “savant” component, with Applicant’s “hop” portion of its compound mark disclaimed.  Therefore, for comparison purposes, the marks were identical, making this factor weigh in Opposer’s favor.

The most interesting analysis was of the similarity of beer and wine as set forth in the parties’ respective applications.  Despite that fact that beer and wine have been held to be similar goods in numerous other cases before the TTAB and the Federal Circuit, the Board reiterated that each case must be decided on its own facts and evidence.   It also indicated that there is no per se rule regarding the similarity of alcoholic beverages.  Here, the Board concluded that Opposer did not introduce enough evidence to establish that beer and wine are sufficiently related that consumers expect them to emanate from the same source under the same mark.

The Federal Circuit has ruled that even a single Dupont factor may found to be dispositive in a likelihood of confusion analysis.  Here, the Board found that since the Opposer could not establish that the parties’ respective goods (i.e., beer and wine) were related for likelihood of confusion purposes, then the opposition should be dismissed.

Editor’s Note:  The burden of an Opposer to establish the relatedness of beer and wine in every single case (without much weight given to case precedent) is somewhat —well— burdensome.  Would it be too much to ask that the Board take notice of the relatedness or non-relatedness of certain goods as the Trademark Office routinely does during the trademark examination process?  This could be one reason why U.S. trademark opposition and cancellation proceedings are some of the most expensive in the world.  

A recent trademark opposition is a lesson in what happens when there is a crowded field of similar trademarks.

In Inter-Industry Conference on Auto Collision Repair v. LM Industries Group, Inc., Applicant sought registration of the mark ICAR or land vehicles in International Class 12.  Opposer filed a notice of opposition against the ICAR application on the basis that it was likely to cause confusion and dilute Opposer’s rights in its eight registered marks incorporating the term I-CAR.   Opposer’s marks are in the field of auto body repair and damages analysis.  In its analysis of whether a likelihood of confusion existed between the parties’ marks, the TTAB compared Opposer’s Reg. No. 1607727 of I-CAR for “educational services consisting of conducting training course in auto body repair and damages analysis,” in Class 41 with Applicant’s mark in Class 12.  The Board chose this specific registration as it was the closest to the goods offered by Applicant for the same or similar auto body repair and damages field.

In its opinion, the Board recognized in that analyzing the relevant likelihood of confusion factors, two key considerations are the similarity of the marks and the similarity of the goods or services.  Yet at the end of the day, the number of third-party registrations of ICAR and its derivatives proved conclusive.

In ruling against the Opposer, the Board reasoned that:

Despite the similarities of the marks and the niche fame of Opposer’s mark, we find that the number of third-party users for automobile related services, the differences between the goods and services, channels of trade, and classes of consumers, as well as the heightened degree of sophistication and care in the decision-making process in purchasing Opposer’s educational services and Applicant’s automotive goods, warrant a finding that there is no likelihood of confusion.

Editor’s Note:   The Board’s finding that no likelihood of confusion existed between the parties’ marks was despite the fact that it concluded that Opposer’s mark was strong and had achieved fame in the field of automobile collision repair.  However, since ICAR derivatives had been registered and used by numerous other third-parties for other facets of automobile goods and services, it concluded that Opposer was entitled to a restricted scope of protection outside the automobile collision repair category.

Trademark opposition proceedings are civil litigations before the U.S. Trademark Trial and Appeal Board (TTAB).  Companies that wish to enforce their trademark rights through TTAB proceedings should take into account the following pre-filing considerations:

  1.  Standing. Standing is a procedural requirement for all potential opposers.  To establish standing to bring or maintain a trademark opposition, the Opposer must allege a real interest in the outcome of the proceeding together with a claim that it will be damaged by the Applicant’s mark.
  2.   Priority.  In cases where the Opposer is claiming that the offending application will cause a likelihood of confusion with the Opposer’s trademark, the Opposer must allege that is has senior rights. This may be accomplished by showing ownership of a prior U.S. trademark registration or by alleging common law rights that predate the applicant’s first use date or filing date.
  3.  Ownership.  The Opposer should make sure that it is the owner of the senior trademark and file the opposition under its corporate name.   If a related company or licensee is using the trademark, a review of all agreements should be made prior to filing a notice of opposition to ensure rightful ownership and proper chain of title.   Licensees generally do not have standing to bring a trademark opposition proceeding unless specifically governed by a trademark license agreement.
  4.   Jurisdiction.  The TTAB has jurisdiction over the right to register a trademark only.   Even if the Opposer prevails, the TTAB does not have any authority to order the Applicant to cease use of its trademark.  Nor does it have the right to award monetary damages or attorney’s fees.  Only Article III courts such as U.S. District Court has the jurisdiction to enjoin a party’s right to use its trademark in commerce or to award monetary relief to the prevailing party.
  5.  Proper use.  Under U.S. law, trademark rights are based on use.  The fact that an Opposer is the owner of a preexisting trademark registration does not mean that it automatically has superior rights to those of the Applicant.  The Applicant has the right to seek evidence that the Opposer is currently using Opposer’s trademark on all of the goods and services set forth in its pleaded trademark registration.  If the Opposer had never commence use of its mark on some of the goods, or if it has abandoned use on some or all of the goods, then the Opposer’s pleaded registrations are subject to cancellation.
  6.  Likelihood of confusion. The test for whether a trademark applicant’s mark is confusingly similar to a senior owner’s mark has been set forth is a 13-part test known as the Dupont  While no one factor is dispositive, some of the key factors that the TTAB looks at to determine if a likelihood of confusion may exist are (a) similarity of the marks; (b) similarity of the goods or services; and (c) similarity of the parties’ trade channels.

The above checklist is not inclusive.   Other legal and factual considerations should be weighed prior to bringing a notice of opposition.  Such factors include a discussion of preferred business goals, and how to achieve them without the need of a full-trial on the merits.   Often, these goals can be achieved with the assistance of an experienced trademark opposition attorney.

Editor’s Note:   To discuss your trademark opposition or brand enforcement strategy, please contact James Hastings.

More than 5,000 trademark oppositions are filed every year.  One of the grounds for bringing a trademark opposition is that the application is likely to cause confusion with the Opposer’s preexisting trademark.  Yet many trademark opposers are unsuccessful and have their case dismissed.  So prior to filing a notice of opposition, it is advisable to be aware of common mistakes that beset litigants before the US Trademark Trial and Appeal Board.

Mistake #1:  Failure to know TTAB rules.   Procedures for trademark opposition proceedings are set forth in the Trademark Board Manual of Procedure (TBMP).  The failure to follow the strict rules of the TTAB that are contained in the TBMP could result in dismissal of a case or otherwise severely prejudice a litigant’s rights.

Mistake #2.   Failure to assess the case.   Many trademark owners engage in robust trademark monitoring.  This includes filing numerous trademark oppositions against trademark applications deemed to be confusingly similar.  While this tactic can prove successful in certain cases, it could be disastrous where the Opposer fails to adequately research the law and how it may apply to the specific facts of the case.  The lesson here is to assess your strengths and weaknesses before filing a notice of opposition; not after.  No two cases are alike.

Mistake #3.   Overconfidence.   This error in strategic judgment has gotten many a trademark opposer in trouble.   Should the Applicant vigorously defend the opposition and expose fatal weaknesses in the Opposer’s case, the Opposer may be faced with the undesirable choice of either proceeding with the expense of the litigation, or, even worse, face a negative ruling.  This could result in a weakening of the brand owner’s future brand enforcement efforts or even cancellation of its own trademark registrations.

Trademark Management Recommendations:   Brand owners should create and implement a written trademark monitoring and enforcement plan.   Factors to consider are (1) what trademarks should be monitored and enforced; and (2) under what circumstances should third-party applications be opposed.   By creating a written brand enforcement process and updating it once a year, companies can help mitigate their risks and strengthen their trademark portfolios. 

Not all trademark opposition proceedings proceed to a final decision.  In fact, the vast majority of trademark opposition disputes are resolved between the parties or involve trademark mediation.  Estimates are that over 90% of cases before the U.S. Trademark Trial and Appeal Board amicably settled before trial.

Short of the cost and expense of a full trial on the merits, parties may elect to do the following:

  1.   Withdraw the Application.    The Opposer may request that the Applicant withdraw its trademark application in consideration of a consent agreement that the Applicant may use its mark in commerce under well-defined circumstances.
  2.   Narrow the Identification of Goods.    A frequently invoked compromise is for the Applicant to agree to delete certain goods or services contained in its application.  The Applicant would then be permitted to proceed with its registration based on the narrowed identification of goods.  This is so as to avoid a potential likelihood of confusion with the Opposer’s goods and services.
  3.  Trademark assignment and license back.    Under this scenario, the Applicant would assign its ownership in and to its application and eventual registration to the Opposer.  The Opposer would then license-back the mark to the former Applicant for a limited-use purpose under the supervision and control of the Opposer.  This strategy is used in limited circumstances.
  4.  Withdrawal and agreement not to use.   This is a last-resort strategy for an Applicant.  By signing an Agreement not to use the mark in commerce, it generally gives the Opposer contractual rights to police the Applicant’s use of marks in the future that the Opposer may deem to be confusingly similar to its own.    If the Applicant has decided to make the business decision to withdraw its application and not use the mark, it should avoid signing any other documents that would give the Opposer any future right to approve or disapprove new trademarks of the Applicant.
  5.   Trademark Mediation.   Mediation is an effective means for the parties to come together to discuss their dispute and narrow their differences between a qualified trademark mediator.   The mediation may be either binding or non-binding at the election of the parties.

Editor’s Note:  The author is an approved mediator with the International Trademark Association Panel of Trademark Mediators, a professional group that is compromised of approximately 175 mediators worldwide.

For purposes of likelihood of confusion, not all beverage trademarks are created equal.

In Patrón Spirits International AG v. Conyngham Brewing Company, the Applicant sought registration of the mark PIRATE PISS for “beer, ale, and lager” in International Class 32.   Opposer Patron had opposed the application based on its ownership of the previously registered marks PYRAT and PYRAT RUM for distilled spirits and rum in International Class 32.  Patron had disclaimed exclusive rights in and to the term “rum” as uses in the latter mark separate and apart from the mark as shown.  In support of its case, Patron had submitted its registrations, and various internet printouts showing various spellings of the term “pirate.”  In addition, it introduced 13 third-party registrations showing marks where the goods contained both beer and rum.  However, of these, only 6 were use-based registrations, prompting the Board to observe:

Opposer’s submission of the six relevant third-party registrations is not very convincing for purposes of showing that beer and rum are sufficiently related that consumers expect them to emanate from the same source.

There is no per se rule that all beverages are related for purposes of likelihood of confusion.   The Board noted that while beer and wine are often found to be related in trademark oppositions involving beverages, each case must be weighed by its own facts and evidence.   Here, the Board proceeded to conclude that Opposer could not evade its burden of proving relatedness of the goods by “bootstrapping upon previous factual findings made in other decisions on different records.”   In the end, it believed that the both the quality and quantity of Opposer’s evidence was insufficient to prove that beer and rum are related goods for purposes of likelihood of confusion.  This factor, as well as the unique connotation and strong commercial impression of Applicant’s mark helped to distinguish it from Opposer’s mark.  Accordingly, the Board dismissed the Opposition and ruled in favor of Applicant.

Practice Tip:  In proving the relatedness of beverage trademarks, an Opposer should cite to as many third-party use based registrations as possible and further present probative evidence that the related goods in question are in use by the same source.  Note, however, that if the marks being compared are identical or highly similar, the degree of relatedness required between the respective goods need not be as great.

We recently spoke with Thomas Huthwaite, senior associate at Baldwins, to discuss New Zealand trademark protection issues.   Thomas has been named as “one to watch’” by the Legal 500 Asia-Pacific.

Please tell us a little about your trademark and brand protection practice.

I am a New Zealand barrister and solicitor, and registered Patent Attorney.  Since joining Baldwins Intellectual Property in 2010, I have been involved in litigation and dispute resolution work for a number of high profile international clients, including US-based companies Harley-Davidson Motor Corporation, Motorola, and Pepsico.  Some of my work has resulted in leading New Zealand trade marks jurisprudence, including:

  • Crocodile International Pte Ltd v Lacoste [2017] NZSC 14, the leading case on “non-use” of a trade mark
  • Zoggs International Limited v Sexwax Incorporated [2013] NZHC 1494 and Sexwax Incorporated v Zoggs International Ltd [2014] NZCA 311, leading cases on “bad faith” and “reputation” respectively

What should U.S. companies be doing to protect their valuable brand names in New Zealand? 

Early clearance and registration are certainly recommended as first steps for any brand owner.  New trade mark applications are published for potential opposition purposes at the end of each month, and opposition remains open for three months.  Monitoring for new applications and published marks is recommended in order to ensure that potential oppositions are identified early.

Marketplace, company name registration, and/or domain name registration searches are also recommended for certain industries, in order to identify potential or proposed use.  Customs notices are also recommended for those concerned about counterfeit goods, and can be a useful means of monitoring both imported and exported goods. Most disputes in New Zealand arise from the adoption of confusingly similar marks by different parties (rather than the misappropriation of marks, or adoption of identical marks).  Early identification and potential challenge increase the risks of successfully preventing the use of confusingly similar marks.  Early intervention also reduces the risk of dilution, damage, and/or customer confusion.

What is required for a company to be eligible to file a trademark opposition in New Zealand? 

 Broadly speaking, there are four types of trade mark proceedings in New Zealand: 

  • Opposition (before the Commissioner of Trade Marks, seeking to prevent registration of an application);
  • Invalidity (before the Commissioner of Trade Marks or the High Court, seeking to invalidate an already-registered mark);
  • Revocation (before the Commissioner of Trade Marks or the High Court, seeking to remove a mark for non-use); and
  • Infringement (in the High Court, requiring a registered trade mark).

There is no locus standi or other standing requirement for filing a trade mark opposition in New Zealand.  Potential opponents are encouraged to either oppose or seek an extension of time for opposing within the initial 3 month deadline, as it is much easier to oppose registration than to apply to invalidate an already-registered mark.  Potential grounds for opposing include that the mark applied for is likely to deceive or confuse consumers (for example, on the basis of the opponent’s prior use or registration of a similar mark), that there has been a false claim to ownership (including no intention to use the mark as applied for), that the application was made in bad faith, and/or that the application is contrary to law (including copyright law, consumer law, or common law).

What are some of the risks to international companies who decide not to file a trademark opposition? 

Not filing a trade mark opposition can be hugely detrimental, depending on the circumstances.  It may become impossible for the potential opponent to later challenge a registered mark (or its use), particularly if the owner of the registration has used the mark in New Zealand and established a reputation in the mark for itself.

New Zealand cases will typically be decided on a priority basis, meaning first to use or register should prevail.  However, it can be difficult to obtain evidence of use, which must have been genuine, within New Zealand, and may need to surpass mere “use” to establish a “reputation” or “goodwill” (depending on the type of proceeding or challenge).  This can also become clouded by any subsequent use of the same or a confusingly similar mark by a different entity. 

Early registration is therefore always desirable and recommended.  This is especially true given that trade mark infringement proceedings require a trade mark registration, and given that use of one’s trade mark registration provides an absolute defense to infringement.

If opposition proceedings are not filed, invalidity and revocation proceedings are still available.  However, as mentioned above, the burden in such cases does tend to become heavier for the challenger.  In the meantime, the challenger may also be prevented from freely using its mark in New Zealand, given the potential threat of infringement.  In-keeping with the general principles of priority, honest prior or concurrent use can provide a defense to infringement.

Editor’s note:   U.S. or international companies interested in speaking with Thomas about New Zealand trademark protection strategies may contact him directly via email or Linkedin.

We recently spoke with Blake Knowles, partner at Cullen’s, to discuss Australia trademark protection issues.

1.  Please tell us a little about your background and brand protection experience.

Since joining Cullens, I have been responsible for managing, protecting and enforcing the trademark portfolios of several successful and well known Australian and overseas companies. I regularly prosecute trademark applications, represent clients in trademark oppositions and removal proceedings, and assist with enforcement of trademarks and resolution of disputes.

I was previously employed for ten years in the Australian Trade Marks Office. I am a former Senior Examiner, Principal Examiner and Examination Team Leader. During my time as an Examiner, I assessed several thousand trademark applications. As an Examination Team Leader, I was responsible for the management and mentoring of twelve other trademark examiners.

At the time I left the Australian Trade Marks Office, I was the Assistant Director of Trade Marks Hearings & Oppositions. In this role, I worked on a range of trademark legal and policy issues and was also responsible for authoring significant parts of the Trade Mark Office Manual of Practice and Procedure as well as creating training modules for trade mark examiners.

2.  What should U.S. companies be doing to protect their valuable brand names in Australia?  

Fortunately in Australia it is rare for applications to be filed in bad faith for the purposes of usurping a valuable overseas brand. Most disputes arise from adoption of similar marks by multiple parties.  The usual strategies for brand protection should be employed: i.e., registering early (claiming convention priority where possible from foreign applications), obtaining clearance searches prior to commencing use, and monitoring whether applications have been filed by other parties for key marks (or confusingly similar marks). Local distributors should also be tasked with watching the market and reporting any potential infringements early.

3.   What is required for a company to be eligible to file a trademark opposition in Australia? 

There is no standing requirement to file a trademark opposition in Australia or to commence a non-use removal proceeding.  It is much easier and more cost effective to prevent registration of a conflicting trade mark during the opposition period, compared to challenging the mark post-registration. However, the  Australia trademark opposition period is very short (2 months), and extensions are difficult to obtain.  Opponents who neither reside or carry on a business in Australia can be requested to pay security for costs at the commencement of opposition proceedings. If security is not paid, the Registrar has discretion to dismiss the opposition.  

4.   What are some risks to companies who decide not to file a trademark opposition?

The biggest risk is exclusion from the market or ring fencing.  Generally, if a company has first use and subsequent continuous use of a mark in Australia for particular goods or services, they should be able to defend an allegation of infringement by another registrant, and they will also have good prospects of obtaining their own registration on the basis of prior use (i.e. common law rights). However, their rights may be limited to the goods for which they have actually continuously used the mark in Australia, and this may inhibit expansion of activities in the Australian market.  Further, unless the company can afford to challenge a third party registration (which must done through the courts), they may need to co-exist with the other registrant in the market, which can create commercial difficulties and brand dilution.

5.   Do you have any other advice for companies who seek to obtain Australia trademark protection?

Many trademark applications are now filed in Australia via the Madrid Protocol. Such applications often designate many countries, and Australia is rarely the primary market of interest for such applicants. As such, an applicant who has filed via Madrid Protocol may be reluctant to incur costs defending an opposition in Australia. This can often result in an opponent winning by default, when a defense is not filed by the applicant.  Another useful strategy is to register key brands as domain names in the .com.au space. Other companies who may wish to adopt an identical brand to a foreign company may be discouraged if they cannot acquire the corresponding domain name in the .com.au space.

Editor’s Note:  U.S. or international companies interested in speaking with Blake about Australia trademark protection strategies may contact him directly via email or Linkedin.

The U.S. Trademark Trial and Appeal Board recently found no likelihood of confusion between two apparel marks.

In Manhattan International Trade, Inc. and Pure & Simple Concepts, Inc. v. Industrie IP Party, Limited, the Applicant sought to register the design mark FINEST QUALITY GARMENT MAKERS INDUSTRIE TURN OF THE CENTURY CLOTHING EST 1999 for clothing.   Upon viewing the logo, the largest portion of the mark is “Garment Makers Industrie.”  In its notice of opposition, Opposer alleged prior use and registration of a family of “INDUSTRY” marks for clothing, including INDUSTRY BY WORKWEAR, INDUSTRY UNION MADE PRODUCT, INDUSTRY GIRL, and additional marks for INDUSTRY with various design elements.  As in all trademark opposition cases involving likelihood of confusion, Opposer bore the burden of proof.

In analyzing the likelihood of confusion factors, the Board determined that the goods were, in part, identical.  Therefore, it also led to a presumption that the clothing products bearing the parties’ respective marks traveled in the same channels of trade.  The Board went on to state “the legal identity of the goods, close relationship of the goods and services, and their overlapping channels of trade and classes of purchasers not only weigh heavily in favor of finding a likelihood of confusion, but also reduce the degree of similarity between the marks necessary to find a likelihood of confusion.”  That being said, the Board concluded that in considering the parties’ marks in the entirety as to appearance, sound, connotation, and commercial impression, the “many differences between the marks outweigh their similarity.”

Moreover, the Board found that the Opposer’s INDUSTRY mark was weak, reasoning that:

the weaker an opposer’s mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.

Based on the vast differences in the parties’ marks in their entireties, the weakness of the term “INDUSTRY” for clothing, and numerous references to third-party registrations containing the word “industry” in the record, the Board dismissed the opposition.

Practitioner’s Note:    The Board also ruled that the Opposer did not establish that it had a “family” of marks, as Opposer’s evidence as to consumer recognition and other factors necessary to establish a family of marks was weak.