Guangzhou Teyu Electromechanical Co., Ltd v. Shanghai Top Nine Industrial Co., Ltd.

OCR transcription for search; preserved printed pages are authoritative

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: November 18, 2025

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Guangzhou Teyu Electromechanical Co., Lid
U.
Shanghai Top Nine Industrial Co., Ltd

Cancellation No. 92082566

Elliot C. Mendelson and Yichen Cao of Analects Legal LLC,
for Guangzhou Teyu Electromechanical Co., Ltd.

Joseph Militello, of MarkingPost IP Law PLLC and Zhihua Han of Wen IP, LLC,
for Shanghai Top Nine Industrial Co., Ltd.

Before Heasley, Lebow, and Casagrande,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:

This is a dispute about who is the true owner of a registered mark. Shanghai Top
Nine Industrial Co., Ltd. (““Respondent” or “Top Nine”), owns a Principal Register
registration for the mark S&A, in standard characters, for

Air purifying apparatus; Blast chillers for commercial food preparation and
storage; Components for air conditioning and cooling systems, namely,
evaporative air coolers; Cooling units for industrial purposes; Industrial
dryers for heating and dehumidifying; Process chillers that provide
temperature controlled fluid to various applications in the analytical,
semiconductor, laser, plastics and packaging markets; Refrigerating

Cancellation No. 92082566
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appliances and installations; Refrigerating machines; Water coolers;
Water filtering units for commercial use, in International Class 11.1
Petitioner Guangzhou Teyu Electromechanical Co., Ltd. (”Petitioner” or “Teyu”)
seeks cancellation of Respondent’s registration under 15 U.S.C. § 1064 on the grounds
that (1) Respondent is not the rightful owner of the mark, (2) Petitioner has prior use
of its S&A mark in the United States and there is a likelihood of confusion under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), and (3) Respondent committed fraud
on the USPTO when it applied for and obtained registration of the subject mark,
knowing it did not own the mark.2 In its Answer, Respondent denies the salient
allegations of the Petition for Cancellation.3 Both parties have briefed the case.
The parties’ positions on the ownership issue may be summarized as follows.
Petitioner, which came up with the mark, manufactures and packages products with
the S&A mark in China. Respondent claims to own the mark because it purchased
units manufactured in China by Petitioner and resold them in the United States in
Petitioner’s packaging, bearing the S&A mark.
We grant the Petition for Cancellation on the ground that Respondent is not, and
never has been, the owner of the mark.
1 Registration No. 6813062, issued August 9, 2022, from an application (Serial No. 90839545)
filed July 21, 2021 claiming May 22, 2018 as the date of first use anywhere and in commerce.
2 Petition for Cancellation, 1 TTABVUE, Petitioner’s main brief, 25 TTABVUE 6-7. Petitioner
also alleged misrepresentation of source under Trademark Act Section 14(3), 15 U.S.C.
§ 1064(3), Petition ¶ 23, 1 TTABVUE 8, but did not pursue this issue in its briefs, thereby
waiving or forfeiting the claim. Flame & Wax, Inc. v. Laguna Candles, LLC, No. 92072343,
2022 WL 3083070, *2 (TTAB 2022).
3 4 TTABVUE.

Cancellation No. 92082566
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I. Entitlement
Entitlement to a statutory cause of action is a requirement in every inter partes
case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370,
1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 125-26 (2014)). “The bar in demonstrating entitlement to a statutory
cause of action is not high.” Kimberley Kampers IP Pty Ltd v. Safiery Pty Ltd, No.
92074422, 2022 WL 16708341, *2 (TTAB 2022). To be so entitled, a party petitioning
for cancellation of a registration must plausibly allege and then demonstrate at trial:
(1) an interest within the zone of interests protected by the cancellation statute, i.e.,
a direct and personal stake in the outcome of a cancellation proceeding; and (2) a
reasonable belief in damage that would be proximately caused by registration of the
mark in violation of the statute. Curtin v. United Trademark Holdings, Inc., 137 F.4th
1359, 1364-65, 1367 (Fed. Cir. 2025) (citing Lexmark Int’l v. Static Control
Components, 572 U.S. at 120-37).
In this case, Petitioner alleges and maintains that it, not Respondent, is the
rightful owner of the S&A mark. “The dispute over ownership of the mark …
establishes [entitlement].” UVeritech, Inc. v. Amax Lighting, Inc., No. 92057088, 2015
WL 4380998, *3 (TTAB 2015); Fuji Med. Instruments Mfg. Co. v. Am. Crocodile Int’l
Grp., Inc., No. 92062760, 2021 WL 3286400, *5 (TTAB 2021).
II. The Record
The record includes the pleadings and the file of Respondent’s registration, by
operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).

Cancellation No. 92082566
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Petitioner submitted a Notice of Reliance (NOR) that included the registration file
for Respondent’s subject Registration and Respondent’s Answer to the Petition for
Cancellation;4 the parties’ discovery responses and documents in support thereof;
Petitioner’s Chinese trademark registrations for S&A; Petitioner’s U.S. tradeshow
exhibition and marketing documents; Petitioner’s social media marketing in the U.S.;
Petitioner’s U.S. invoices and sales documents; documents evidencing transactions
and invoices between the parties; and invoices to U.S. customers and other
documentation of Petitioner’s U.S. sales transactions.5
“In trying to determine which party is entitled to claim ownership of the mark, we
observe at the outset that the record is hardly a model of clarity.” UVeritech v. Amax
Lighting, 2015 WL 4380998, at *3. We note that Petitioner’s NOR contains some
documents—such as Respondent’s discovery responses and Petitioner’s social media
postings—that are typically submitted via NOR, and others—such as Petitioner’s
discovery responses, tradeshow exhibition and marketing documents, as well as
invoices—that are not. See generally Trademark Rules 2.122(g), 2.122(e)(2),
2.120(k)(3)(i), 37 C.F.R. §§ 2.122(g), 2.122(e)(2), 2.120(k)(3)(i); TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 704.02 (2025); Flame & Wax v.
Laguna Candles, 2022 WL 3083070, at *3. We typically require documents in the
latter category to be supported by testimony, such as a deposition, declaration, or
affidavit attesting to their authenticity. Wet Seal, Inc. v. FD Mgmt., Inc., No.
4 These need not have been included in the NOR, as both were a matter of record already.
Peterson v. Awshucks SC, LLC, No. 92066957, 2020 WL 7888976, *1 n.8 (TTAB 2020).
5 14-19 TTABVUE.

Cancellation No. 92082566
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91157022, 2007 WL 458529, *2 (TTAB 2007). Petitioner has submitted no testimony.
Respondent, however, has not objected to any of Petitioner’s evidence,6 and has in
fact commented on its probative value in its own brief.7 Any potential objections have,
in consequence, been waived, and the evidence is deemed a stipulated part of the
record, where we may accord it its appropriate probative value. See generally Maids
to Order of Ohio, Inc. v. Maid-To-Order, Inc., No. 92040571, 2006 WL 936993, *2
(TTAB 2006) (“Although these types of materials generally may not be submitted by
notice of reliance, [the non-offering party] has not objected thereto and indeed has
treated the materials as being of record by referring to them in its brief on the case.
Thus, the materials are considered to have been stipulated into the record.”); Flame
& Wax v. Laguna Candles, 2022 WL 3083070, at *3 (holding that an objection to a
notice of reliance on the ground that its attachments were not proper subjects for
submission under notice of reliance was a procedural objection that was waived when
not timely asserted).
As the Board has observed, “We note that where ordinarily inadmissible hearsay
evidence is admitted into evidence without objection, it may be considered for
whatever probative value the finder of fact chooses to give it.” Daniel J. Quirk, Inc. v.
Village Car Co., No. 92057667, 2016 WL 6136609, *6 n.27 (TTAB 2016). For example,
in Optimal Chemical Inc. v. Srills LLC, No. 92063200, 2019 WL 4316700, *16 n. 90
(TTAB 2019) the Board held, “[regarding] Respondent’s notice of reliance, … [w]e note
6 “Respondent Shanghai, for its part, has raised no evidentiary objections to any of
Petitioner’s evidence.” Petitioner’s reply brief, 27 TTABVUE 9.
7 See Respondent’s brief, 26 TTABVUE 4-5, 8 (discussing Petitioner’s social media promotion,
invoices, shipping records, and trade show).

Cancellation No. 92082566
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Respondent did not submit any testimony regarding the truth of the matters asserted
in this evidence. As such, this evidence would generally only be considered for what
it shows on its face. … However, since Petitioner opined on the accuracy of the
information contained in this evidence in its rebuttal testimony and rebuttal trial
brief, … and did not expressly object to the admissibility of this evidence on any
grounds, we find that Petitioner has waived any objections regarding the same.
Accordingly, we have considered this evidence for the truth of the matters asserted
therein.” Similarly, we hold here that Respondent has waived any objections
regarding Petitioner’s evidence.
Respondent, for its part, submitted its pretrial disclosures listing its expected
testimony and documentary evidence,8 but did not introduce any testimony or
documents thereafter during its trial period. In its brief, Respondent appended copies
of sales documents9 that Petitioner had submitted in its NOR.10 The documents
purport to show sales of industrial water chillers in the United States by Cole
Technology Co., Ltd. as explained in the appended declaration of Xinyan Dai, who
claims a controlling interest in Cole Technology and Respondent Top Nine.11 Based
on this evidence, Respondent attempts to claim a date of first use of the S&A mark
in 2010, eight years prior to the May 22, 2018 date of first use claimed in its
application and subsequent Registration.12
8 23 TTABVUE.
9 Respondent’s brief, 26 TTABVUE 11-12.
10 Petitioner’s NOR, 15 TTABVUE 62.
11 Respondent’s brief, 26 TTABVUE 13.
12 Id., 26 TTABVUE 4.

Cancellation No. 92082566
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Petitioner objects that the new declaration is untimely--executed after
Respondent’s trial period, one day before Respondent filed its brief, and submitted for
the first time as an attachment to Respondent’s brief.13 Petitioner cites TBMP
§ 801.01 for the proposition that “[a] brief may not be used as a vehicle for the
introduction of evidence.”14 We agree. The Board will not consider evidence and other
evidentiary materials attached to the briefs unless they were properly made of record
during the time assigned for taking testimony. Hole in One Drinks, Inc. v. Lajtay, No.
92065860, 2020 WL 859853, * 2 (TTAB 2020). The objection is sustained, and we give
the declaration no consideration. We add that the exclusion of this late-filed
declaration is immaterial to the outcome, as the disposition of this case ultimately
turns on ownership, not priority.
On the other hand, the sales documents appended to Respondent’s brief were
already introduced by Petitioner, and were discussed by both parties, so they will be
accorded their proper probative value, if any. As the Board has stated:
Because a cancellation proceeding is akin to a bench trial, the Board is
capable of assessing the proper evidentiary weight to be accorded the
testimony and evidence, taking into account the imperfections surrounding
the admissibility of such testimony and evidence. As necessary and
appropriate, we will point out any limitations in the evidence or otherwise
note that we cannot rely on the evidence in the manner sought. We have
considered all of the testimony and evidence introduced into the record. In
doing so, we have kept in mind the various objections the parties have
raised and we have accorded whatever probative value the subject
testimony and evidence merit.
Peterson v. Awshucks SC, 2020 WL 7888976, *4.
13 Petitioner’s reply brief, 27 TTABVUE 7.
14 Id.

Cancellation No. 92082566
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III. Ownership of the Mark
Although this proceeding was brought on many causes of action, the core issue is
ownership of the mark. Wonderbread 5 v. Gilles, No. 92052150, 2015 WL 4380986, *7
(TTAB 2015). Respondent acknowledges that “[a]s the Board noted in Nahshin v.
Product Source Int’l LLC, [Can. No. 92051140, 2013 WL 6040375, *1 (TTAB 2013)]
the actual issue is ‘ownership of the mark … as the [goods] that respondent sells
under the mark are the same [goods] that petitioner arranged to have manufactured.’
While the marks and goods may be identical, the likelihood of confusion analysis is
secondary to the question of ownership.”15
“In cases such as this where the parties have either a prior or current relationship,
the question of [which party] is, in fact, the owner of the mark must be determined
on a case by case basis dependent on the particular facts adduced in each case.” CBC
Mortgage Agency v. TMRR, LLC, No. 92076723, 2022 WL 3444028, *8 (TTAB 2022)
(internal punctuation and citation omitted). “[I]t often happens that by virtue of the
conduct of the parties, more than one may use a trade-mark, but only one can have
ownership of it in a trademark registration sense.” Meem-Haskins Coal Corp. v.
Central Fuel Corp., 137 F.2d 242, 246 (CCPA 1943), quoted in Conolty v. Conolty
O’Connor NYC LLC, No. 91206045, 2014 WL 3427346, *8 (TTAB 2014).
“In a use-based application under Trademark Act Section 1(a) [15 U.S.C. §
1051(a)], only the owner of the mark may file the application for registration of the
mark; if the entity filing the application is not the owner of the mark as of the filing
15 Respondent’s brief, 26 TTABVUE 7.

Cancellation No. 92082566
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date, the application is void ab initio.” Great Seats, Ltd. v. Great Seats, Inc., No.
92032524, 2007 WL 1740870, *5 (TTAB 2007); see Lyons v. Am. Coll. of Veterinary
Sports Med. & Rehab., 859 F.3d 1023, 1027 (Fed. Cir. 2017) (“Thus, registration by
one who did not own the mark at the time of filing renders the underlying application
void ab initio.”). These principles apply directly to this case.
“By virtue of its registration, Respondent enjoys the presumption that it is the
owner of the mark. Trademark Act Section 7(b), 15 U.S.C. § 1057(b).” Kimberley
Kampers v. Safiery, 2022 WL 16708341, at *3. Accordingly, “[i]t is Petitioner’s burden
as plaintiff in the proceeding to establish prior ownership by a preponderance of the
evidence. See, e.g., Metro Traffic Control, Inc. v. Shadow Network Inc., 104 F.3d 336,
[339] (Fed. Cir. 1997).” Wonderbread 5 v. Gilles, 2015 WL 4380986, at *7.
Presumptions can be rebutted by other evidence, however, and here, there are
admissions in the record that bear on ownership.
Respondent admits that it simply purchased the industrial goods Petitioner
manufactured in China, then resold them in the United States in the same packaging,
bearing the same mark. Respondent’s Answer elaborated that “…even though
Registrant sold goods purchased from the petitioner, Registrant was not, and is not
a distributor for Petitioner.”16 Respondent adds that “There has never been an agency
or distributor agreement between Respondent and Petitioner.”17 Petitioner concurs:
“[b]oth parties do agree that no formal relationship has ever existed between them.”18
16 4 TTABVUE 3.
17 Respondent’s brief, 26 TTABVUE 6.
18 Petitioner’s reply brief, 27 TTABVUE 5 n.1.

Cancellation No. 92082566
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Respondent attempts to minimize these facts by highlighting its role in selling
Petitioner’s goods in the U.S. market. In its brief, Respondent argues that
“Respondent, an experienced importer/exporter, discovered a demand in the U.S.
market for the precision equipment manufactured by the Petitioner and started
purchasing and selling the equipment in the U.S. as early as 2010, if not earlier, using
the same packaging and brand name of S&A….”19 As Petitioner correctly observes,
however, “Respondent admits that it has been merely purchasing and reselling
Petitioner’s products, bearing Petitioner’s S&A Mark.”20
Respondent’s admissions in the pleadings and briefs are probative evidence. Saul
Zaentz Co. v. Bumb, No. 91156452, 2010 WL 2783892, *2 n.7 (TTAB 2010) (assertions
in Answer and brief are evidence to the extent they may have probative value as
admissions against interest). “[S]tatements in pleadings may have evidentiary value
as an opposing party’s statement.” Philanthropist.com, Inc. v. the Gen. Conf. Corp. of
Seventh-day Adventists, No. 92065178, 2021 WL 2472776, *14 (TTAB 2021). See
TBMP § 704.06(a) (“statements in pleadings may have evidentiary value as
admissions against interest by the party that made them.”). So too with Respondent’s
brief: “Statements in a brief have no evidentiary value, except to the extent that
they may serve as admissions against interest by the party that made them.”
TBMP § 704.06(b) (emphasis added), cited in Shenzhen IVPS Tech. Co. v. Fancy Pants
Prods., LLC, No. 91263919, 2022 WL 16646840, *14 (TTAB 2022) (admission in brief).
19 Respondent’s brief, 26 TTABVUE 3.
20 25 TTABVUE 6.

Cancellation No. 92082566
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Respondent insists that it “never hid its activities from Petitioner, and there is no
distributor agreement, formal or informal.”21
The Petition for Cancellation alleged that
On information and belief, the specimen of use submitted by Respondent
in the ‘545 Application showed an Amazon listing of an industrial chiller
that is manufactured by Petitioner and bears Petitioner’s stylized S&A
mark. On information and belief, Respondent’s specimen contained an
unauthorized image of Petitioner’s product copied from Petitioner’s
photograph for which Petitioner owns the copyright:
22
Respondent answered: “Registrant denies those allegations of Paragraph 13 of the
Petition, at least on the basis [that the] allegedly copyrighted image bears no
copyright warnings and is subject to fair use by Registrant; and the use of the image
21 Respondent’s brief, 26 TTABVUE 3.
22 Petition for Cancellation ¶ 13, 1 TTABVUE 5-6.

Cancellation No. 92082566
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was known or should have been [known] by the Petitioner and no objection has been
raised.”23
Respondent, as a dealer, is correct in asserting that it can resell Petitioner’s
branded products in the United States without fear of copyright or trademark
infringement, but it cannot claim that it is affiliated with Petitioner or that it owns
the brand.
An independent dealer … can inform buyers of the brand of products it
sells, but it cannot cause confusion or deception as to its affiliation with
the trademark owner. An independent dealer can use the trademark
owner’s mark in disclosing that it sells that brand of goods, but it cannot
do so in a manner which falsely suggests that the dealer is officially
authorized by the trademark owner or is part of the trademark owner's
franchise system.
3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 25:43 (5th ed. Sept. 2025)
(“McCarthy”); see also Bandag, Inc. v. Al Bolser’s Tire Stores, Inc., 750 F.2d 903, 911
(Fed. Cir. 1984).
The general rule is that, as between a manufacturer of a good bearing a trademark
and a distributor of the goods, the manufacturer owns the mark. Arsa Dist., Inc. v.
Salud Natural Mexicana S.A., No. 91240240, 2022 WL 4592443, *9 (TTAB 2022)
(citing UVeritech v. Amax Lighting, 2015 WL 4380998, at *3). 4 MCCARTHY § 29:8.
Respondent attempts to rebut this longstanding principle favoring the
manufacturer by taking two different, diverging paths: It first disclaims a
distributorship agreement, and then, incongruously, claims to be Petitioner’s
distributor. One the one hand, Respondent contends that “By Petitioner’s own
23 Answer ¶ 13, 4 TTABVUE 3.

Cancellation No. 92082566
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admission, there was no agreement between the parties that would dictate trademark
ownership. Therefore, the presumption that Petitioner, as the manufacturer, owns
the mark can be rebutted. There has never been an agency or distributor agreement
between Respondent and Petitioner.”24
On the other hand, Respondent incongruously argues:
Petitioner’s argument overlooks the established legal framework for
determining trademark ownership in a manufacturer-distributor
relationship. … While there is a legal presumption that the manufacturer
is the owner of a mark, this presumption is not absolute and can be
rebutted. As the Court of Customs and Patent Appeals (now the Federal
Circuit) held in E.T.F. Enters., Inc. v. Nina Ricci, S.A.R.L., 523 F.2d 1045,
1054 (C.C.P.A.), the presumption may be overcome if it is shown that the
distributor, rather than the manufacturer, is the source of the goodwill
associated with the mark in the United States. This is often the case when
a distributor is the one who introduces the product into the U.S. market,
and invests heavily in advertising and promotion.25
The two paths diverged in Respondent’s brief, and having trod both, we find that
they fail to establish any basis for Respondent’s ownership of the mark. As McCarthy
explains, “[s]uch a relationship is simply either one of a non-trademark-licensed
buyer who resells branded merchandise or of a dealer licensed under the trademark
to hold himself out as an authorized dealer. In either case, the dealer does not own
the trademark.” 2 MCCARTHY § 16:48.
If Respondent was simply a dealer reselling Petitioner’s branded goods,
Respondent’s sales would inure to Petitioner’s benefit. Fuji Med. Instruments v. Am.
Crocodile, 2021 WL 3286400, at *11 (“Respondent was actively selling Petitioner's
24 26 TTABVUE 6.
25 Id. We are unable to locate Respondent’s cited “E.T.F. Enters., Inc. v. Nina Ricci, S.A.R.L.,
523 F.2d 1045, 1054 (C.C.P.A.).”

Cancellation No. 92082566
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FUJIIRYOKI-branded chairs in the U.S. from 2003 through at least November 2005,
when Shen filed the application. Any U.S. sales by Respondent of Petitioner’s
FUJIIRYOKI chairs inured to Petitioner’s benefit, not Shen’s or Respondent’s.”).
If, on the other hand, Respondent claims to be Petitioner’s distributor, “only the
exclusive U.S. distributor has the ability to rebut the presumption that the
manufacturer or supplier is the owner of the mark in the United States.” 4 MCCARTHY
§ 29:8 (emphasis added). Respondent has disclaimed any distributorship,26 much less
an exclusive one, and Petitioner has agreed.27
In addition, Petitioner has documented its own advertising and sales in the United
States, further undercutting any attempt by Respondent to claim that its
distributorship is exclusive.28 For example:
26 Respondent’s brief, 26 TTABVUE 6.
27 Petitioner’s reply brief, 27 TTABVUE 5 n.1.
28 Petitioner’s NOR, exhibit 10: “Petitioner’s Social Media Marketing documents” 19
TTABVUE 2 et seq.

Cancellation No. 92082566

@teyuchiller

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2919 TTABVUE 34.

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Cancellation No. 92082566
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- 16 -
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Cancellation No. 92082566
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Respondent contends that ‘[w]hile advertising is a component of trademark use,
it is generally not sufficient on its own for goods.”32 That is true, but Petitioner also
adduces evidence of its sales of goods bearing the mark in the U.S. For example:
33
32 Respondent’s brief, 26 TTABVUE 5.
33 Petitioner’s NOR, 18 TTABVUE 32.

Cancellation No. 92082566
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34
Respondent contends that “[i]nvoices are internal business documents that don’t
inherently show ‘public use’ of the mark, which is a key aspect of ‘use in commerce.’”35
To the contrary, the Board accepts invoices as proof of use of a mark in commerce.
34 Petitioner’s NOR, 18 TTABVUE 84.
35 Respondent’s brief, 26 TTABVUE 5.

Cancellation No. 92082566
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Standard Knitting, Ltd. v. Toyota Jidosha K.K., No. 91116242, 2006 WL 173463, *14
(TTAB 2006). Thus, Petitioner’s evidence establishes such use, and, absent objection
from Respondent, should be considered in tandem with the rest of the evidence, taken
as a whole. See West Fla. Seafood, Inc. v. Jet Restaurants, Inc., 31 F.3d 1122, 1125–
26 & n.6 (Fed. Cir. 1994) (“[O]ne should look at the evidence as a whole, as if each
piece of evidence were part of a puzzle which, when fitted together, establishes prior
use.”).
Further, even if we were to overlook Respondent’s failure to show any kind of
formal distributorship relationship with Petitioner (let alone an exclusive U.S.
distributorship), it has utterly failed to present evidence sufficient to persuade us
that, as between Petitioner and itself, it owns the mark. In Fuji Med. Instruments. v.
Am. Crocodile, we set forth the factors that bear on that question:
The following factors are relevant when considering if the presumption [that
the manufacturer owns the mark] has been rebutted:
(1) which party created and first affixed the mark to the product;
(2) which party’s name appeared with the trademark on packaging and
promotional materials;
(3) which party maintained the quality and uniformity of the product,
including technical changes;
(4) which party does the consuming public believe stands behind the product,
e.g., to whom customers direct complaints and turn to for correction of defective
products;
(5) which party paid for advertising; and
(6) what a party represents to others about the source or origin of the product.
2021 WL 3286400, at *10 (citation omitted).
Contrary to the assertions in its brief,36 Respondent has introduced no competent,
36 Respondent’s brief, 26 TTABVUE 3, 6.

Cancellation No. 92082566
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probative evidence demonstrating that it introduced the S&A branded products into
the United States, or that it has invested heavily in their advertising and promotion.
In contrast, there is no dispute that Petitioner created37 and first affixed its mark to
its products, or that as manufacturer, it maintains and stands behind its products. It
shows extensive advertising of its products.38 And Respondent, in its pretrial
disclosures, stated that it expected to introduce:
Screenshots of online advertising directed toward the US market on eBay
and amazon, indicating proof of use in commerce in the US and priority of
USPTO trademark registration and showing that any use of the S&A mark
relates to its appearance on the product being sold by a retailer with no
claim to be the origin of the product nor its manufacturer….39
As in its brief, Respondent’s admission here that its advertising and use of the
mark makes no claim that the origin of the product is Respondent is probative
evidence. Cf. Shenzhen v. Fancy Pants Prods., 2022 WL 16646840, at *14 (admission
in brief). All in all, we find that Petitioner has shown by a preponderance of the
evidence that it owns the S&A trademark, and that Respondent is not, and never has
been, the owner of the mark. Its application to register the mark was therefore void
ab initio. Lyons v. Am. Coll. of Veterinary Sports Med. & Rehab., 859 F.3d at 1027.40
37 Respondent’s Ans.to Int. No. 4: “RESPONDENT DOES NOT CLAIM CREATION OF
MARK.” 15 TTABVUE 48.
38 17 TTABVUE, 18 TTABVUE 1-23, 19 TTABVUE.
39 23 TTABVUE 3 (emphasis added). Respondent was not required to file its pretrial
disclosures with the Board. Trademark Rule 2.121(e), 37 C.F.R. § 2.121(e), cited in Carl
Karcher Ents., Inc. v. Carls Bar & Delicatessen, Inc., No. 91188150, 2011 WL 1495461, *3
(TTAB 2011).
40 Because this ground alone warrants cancellation of Respondent’s Registration, we do not
reach Petitioner’s other claims. CBC v. TMRR, 2022 WL 3444028, at *14 n.22.

Cancellation No. 92082566
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IV. Decision
The petition to cancel Registration No. 6813062 is granted.