Upgrade, Inc. v. MQCC Bungay International LLC

kds Mailed: June 30, 2026
Opposition No. 91297708
Upgrade, Inc.
v.
MQCC Bungay International LLC
Before Johnson, Acting Deputy Chief Administrative Trademark Judge,
and Wellington and Stanley, Administrative Trademark Judges.
By the Board:
This proceeding comes before the Board for consideration of: (1) Opposer’s motion,
filed December 2, 2025, for partial summary judgment on its claims of nonuse and
nonownership (13 TTABVUE);1 (2) Applicant’s unconsented motion, filed December
22, 2025, to amend the identification of services in its subject application
(16 TTABVUE); and (3) Opposer’s motion, filed February 6, 2026, for leave to file a
late reply in support of its motion for partial summary judgment (19 TTABVUE).
1 Citations to the record are to TTABVUE, the Board’s online docketing system. The number
preceding “TTABVUE” corresponds to the docket entry number; the number(s) following
“TTABVUE” refer(s) to the page number(s) of that particular docket entry, if applicable.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB

Opposition No. 91297708
2
I. Background
Applicant seeks registration on the Principal Register of the standard-character
mark UPGRADE ALGORITHM for use in connection with the following services in
International Class 42:2
quality management services, namely, quality evaluation and analysis,
quality assurance, and quality control, in the field of artificial intelligence,
quality management, software development, conformity assessment, and
finance, namely, mortgages, loans, and currency using conformity science-
based technology, governance, risk management, energy efficiency,
quantum computing, and regulatory management; application service
provider (ASP) featuring software using artificial intelligence for systems
learning, finance, regulatory management, energy efficiency, risk
management, and commercialized quantum computing; application service
provider, namely, hosting, managing, developing, analyzing, and
maintaining applications, software, and websites of others in the fields of
organizational governance, management, operations, and risk
management processes; artificial intelligence as a service (AIAAS)
featuring software using artificial intelligence for systems learning,
finance, regulatory management, energy efficiency, risk management, and
commercialized quantum computing; authentication of data in the field of
regulatory records, financial records, corporate records, personal records,
and business transactions using blockchain technology; providing
temporary use of online non-downloadable software and Software as a
Service (SaaS) services featuring software for artificial intelligence, quality
management, software development, conformity assessment, and finance,
namely, mortgages, loans, and currency using conformity science-based
technology, governance, risk management, energy efficiency, and
regulatory management; providing temporary use of online non-
downloadable software and web-based applications for cryptofinance
trading, cloud storage of data, trading in loans, mortgages, or financial
securities, risk management, and regulatory conformity of organizations;
providing temporary use of a web application for sharing blockchain-based
regulatory and financial records; all of the foregoing excluding the
facilitation or provision of consumer or business loans or credit, loan
payment or loan transfer services, credit rating or credit monitoring
2 Application Serial No. 98438086; filed March 7, 2024, based on an allegation of use of the
mark in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a). “ALGORITHM”
is disclaimed.

Opposition No. 91297708
3
services, and software or platforms for monitoring or improving consumer
or business credit quality.
In its notice of opposition, Opposer alleges prior use and registration of the
following marks:
• UPGRADE, in standard characters, for “computer software, namely, a
downloadable platform for use with mobile devices for facilitating consumer
and business loans and that features software tools for use in monitoring
and improving the credit quality of consumers and businesses” in
International Class 9, “financial services, namely, money lending and credit
rating monitoring services; financial loan services for consumers and
businesses provided via an online and mobile platform; arranging and
facilitating the financing of consumer and business loans; providing loan
payment services over a global computer network in the nature of electronic
processing and transmission of loan payment data; financial services,
namely, facilitating the transfer of loans among investors” in International
Class 36, and “computer services, namely, providing software-as-a-service
(SaaS) featuring an online and mobile software platform for facilitating
consumer and business loans and that features software tools for use in
monitoring and improving the credit quality of consumers and businesses”
in International Class 42;3
• UPGRADE ONECARD, in standard characters, for “banking services;
financial administration of credit card accounts” in International Class 36;4
• UPGRADE, in standard characters, for “automobile lease financing;
financing relating to automobiles” in International Class 36;5 and
• UPGRADE SELECT, in standard characters, for “banking services;
financial administration of credit card accounts” in International Class 36.6
See 1 TTABVUE 12, ¶¶ 23-24.
3 Registration No. 5408731; issued February 20, 2018. A Section 8 and 15 combined
declaration has been accepted and acknowledged.
4 Registration No. 6969960; issued January 31, 2023.
5 Registration No. 7209236; issued October 31, 2023.
6 Registration No. 7601391; issued December 10, 2024.

Opposition No. 91297708
4
Opposer identified the following grounds for opposition on the ESTTA coversheet
to the complaint: (1) likelihood of confusion under Trademark Act Section 2(d),
15 U.S.C. § 1052(d); (2) nonuse under Trademark Act Section 1(a), 15 U.S.C.
§ 1051(a); (3) dilution by blurring under Section 43(c) of the Trademark Act, 15 U.S.C.
§ 1125(c); and (4) nonownership under Trademark Act Section 1(a), 15 U.S.C.
§ 1051(a). See id. at 2.
In its answer, Applicant denies the salient allegations of the notice of opposition
and pleads seven purported affirmative defenses.7 6 TTABVUE.
On August 21, 2025, Opposer served discovery requests, including Requests for
Admission (“RFA”), on Applicant. See 13 TTABVUE 13, ¶ 3. Following an agreed-
upon extension of time, Applicant’s deadline to respond to Opposer’s RFA was reset
7 For its first affirmative defense, Applicant pleads that there is “no likelihood of confusion.”
6 TTABVUE 6-12, ¶ 1. For its second affirmative defense, Applicant pleads that there is “no
dilution of Opposer’s marks.” Id. at 12-13, ¶ 2. For its third affirmative defense, Applicant
pleads that it acted “with lack of knowledge and lack of willful intent.” Id. at 13, ¶ 3. For its
fourth affirmative defense, Applicant pleads that it has priority. Id. at 13, ¶ 4. For its fifth
affirmative defense, Applicant pleads that it has “made bona fide use of the [subject] mark in
commerce prior to filing the application, or, alternatively, properly amended or supplemented
its application.” Id. at 13, ¶ 5. For its sixth affirmative defense, Applicant pleads that it is
“the rightful owner of the [subject] mark.” Id. at 13, ¶ 6. We construe these allegations, which
are not true affirmative defenses, as permissible amplifications of Applicant’s denials of
Opposer’s claims. See ProMark Brands Inc. v. GFA Brands, Inc., No. 91194974, 2015 WL
1646447, at *2 n.11 (TTAB 2015); H.D. Lee Co. v. Maidenform Inc., No. 91168309, 2008 WL
1976596, at *3 (TTAB 2008) (citing Black’s Law Dictionary, p. 430 (7th ed. 1999)). For its
seventh affirmative defense, Applicant pleads that “Opposer lacks standing to oppose the
application.” 6 TTABVUE 13, ¶ 7. “Lack of standing, now referred to as entitlement to a
statutory cause of action[,] . . . is . . . not a true affirmative defense because ‘[t]he facts
regarding standing . . . are part of [a plaintiff’s] case and must be affirmatively proved.’”
Empresa Cubana Del Tabaco v. Gen. Cigar Co., No. 92025859, 2022 WL 17844056, *2 n.14
(TTAB 2022) (quoting Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., No.
91219435, 2017 WL 3600737, at *4 (TTAB 2017)). Accordingly, Applicant’s seventh
affirmative defense is stricken.

Opposition No. 91297708
5
for October 20, 2025. See id. at 13-14, ¶¶ 7-8. Applicant did not serve responses to
Opposer’s RFA by the extended deadline. See id. at 14, ¶ 13.
On December 2, 2025, Opposer filed the instant motion for partial summary
judgment on its claims of nonuse and nonownership based on Applicant’s deemed
admissions.8 See 13 TTABVUE.
On December 22, 2025, Applicant filed a response to Opposer’s motion for partial
summary judgment (15 TTABVUE), and an unconsented motion to amend the
identification of services in its subject application (16 TTABVUE).
On January 9, 2026, Opposer filed a response to Applicant’s unconsented motion
to amend, stating that, although Opposer does not oppose the motion to amend, “to
the extent that [Applicant] seeks to narrow the identification of services recited in
the application[,]” the amendment does not render the Board proceeding moot or
eliminate the need for discovery in the proceeding.9 17 TTABVUE 2.
On February 6, 2026, Opposer filed a motion for leave to file a late reply to its
motion for partial summary judgment, together with a proposed reply brief.
19 TTABVUE.
II. Opposer’s Motion for Leave to File a Late Reply
We turn first to Opposer’s motion for leave to file a late reply. Trademark Rule
2.127(e)(1) states that “[a] reply brief, if filed, shall be filed within twenty days from
8 See Fed. R. 36(a)(3); see also infra Section III(B)(1).
9 Opposer filed a duplicate copy of its response to Applicant’s unconsented motion to amend
at 18 TTABVUE, which will be given no consideration.

Opposition No. 91297708
6
the date of service of the brief in response to the motion. The time for filing a reply
brief will not be extended or reopened.” 37 C.F.R. § 2.127(e)(1).
Because acceptance of Opposer’s late reply brief would violate Rule 2.127(e)(1),
the decision to accept the brief is not within the Board’s discretion. Cf. Ron Cauldwell
Jewelry Inc. v. Clothestime Clothes, Inc., No. 91121784, 2002 WL 745591, at *2 (TTAB
2013) (Board’s approval of consented motion to extend time to file reply was in error).
Accordingly, Opposer’s motion for leave to file a late reply brief is denied, and
Opposer’s late reply brief will be given no consideration.10
III. Opposer’s Motion for Partial Summary Judgment on Nonuse
For the reasons explained below, we grant Opposer’s motion for partial summary
judgment on its nonuse claim. Inasmuch as our decision on the nonuse claim is
dispositive of this proceeding, we do not reach Opposer’s motion for partial summary
judgment on its claim of nonownership.
A. Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute as to any material fact, thus allowing the case to be resolved as
a matter of law. See Fed. R. Civ. P. 56(a). The party moving for summary judgment
has the initial burden of demonstrating that there is no genuine dispute of material
fact remaining for trial and that it is entitled to judgment as a matter of law. See Fed.
10 We have otherwise carefully considered the parties’ briefs and evidence, address the record
only to the extent necessary to set forth our analysis and findings, and do not repeat or
address all of the parties’ arguments. See Guess? IP Holder LP v. Knowluxe LLC, No.
92060707, 2015 WL 9702438, at *1 (TTAB 2015).

Opposition No. 91297708
7
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1987). All evidence must
be viewed in a light favorable to the non-movant, and all justifiable inferences are to
be drawn in the non-movant’s favor. Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d
766, 767 (Fed. Cir. 1993); Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d
847, 850 (Fed. Cir. 1992). In deciding a summary judgment motion, the Board may
not resolve disputes of material fact; it may only ascertain whether such disputes
exist. Lloyd’s Food Prods., Inc., 987 F.2d at 767; Opryland USA Inc., 970 F.2d at 849;
Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 202 (Fed. Cir. 1992).
A factual dispute is genuine if, on the evidence of record, a reasonable fact finder
could resolve the matter in favor of the non-movant. Opryland USA Inc., 970 F.2d at
850; Olde Tyme Foods, Inc., 961 F.2d at 202. The evidence submitted by the non-
movant, in opposition to a motion for summary judgment, is to be believed, and all
justifiable inferences are to be drawn in its favor. Opryland USA Inc., 970 F.2d at
850.
Where the party moving for summary judgment on a claim bears the burden of
proof at trial on that claim, the moving party “must lay out the elements of its claim,
citing the facts it believes satisfies those elements, and demonstrating why the record
is so one-sided as to rule out the prospect of the nonmovant prevailing.” 10A CHARLES
ALAN WRIGHT ET AL., FED. PRAC. AND PROC. CIV. § 2727.1 (4th ed. 2026). If the movant
successfully discharges its initial burden of production, then the burden shifts to the
non-movant to demonstrate the existence of disputes of material fact that must be
resolved at trial. The non-movant may not rest on mere denials or conclusory

Opposition No. 91297708
8
assertions, but rather must proffer countering evidence, by affidavit or by means
otherwise provided in Fed. R. Civ. P. 56, showing that there is a genuine factual
dispute for trial. Enbridge, Inc. v. Excelerate Energy L.P., No. 91170364, 2009 WL
3541047, at *3 (TTAB 2009).
B. Analysis and Determination
1. Applicant’s Deemed Admissions
Fed. R. Civ. P. 36(a)(3) provides that “[a] matter is admitted unless, within 30
days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by
the party or its attorney.” Applicant does not dispute that it failed to serve responses
to Opposer’s RFA by the extended deadline. See generally 15 TTABVUE.
Consequently, Opposer’s RFA are deemed admitted by operation of law. See Giersch
v. Scripps Networks, Inc., No. 92045576, 2007 WL 1653585, at *2 (TTAB 2007).
The effect of such admissions is that the subject matter of the requests is
conclusively established unless the Board, on motion, permits the admissions to be
withdrawn or amended under Fed. R. Civ. P. 36(b), or reopens the time to respond to
the admission requests pursuant to Fed. R. Civ. P. 6(b)(1)(B). See Learning Journey
Int’l, L.L.C. v. Yongfu, No. 92082654, 2024 WL 4117143, at *3 (TTAB 2024); Giersch,
2007 WL 1653585, at *1.
Applicant makes no mention of its deemed admissions in its response to Opposer’s
motion. See generally 15 TTABVUE. “While the Board generally takes a liberal
approach in construing responses to motions based on deemed admissions as motions

Opposition No. 91297708
9
to withdraw or amend the admissions or, to a lesser degree, to reopen time,” there is
nothing in Applicant’s response that we could reasonably construe as requesting such
relief. Learning Journey Int’l, L.L.C., 2024 WL 4117143, at *4. See generally
15 TTABVUE. Accordingly, Opposer’s RFA stand admitted, and the matters
admitted thereunder are conclusively established. See Fed. R. Civ. P. 36(b); Learning
Journey Int’l, L.L.C., 2024 WL 4117143, at *4.
We now turn to the merits of Opposer’s motion for partial summary judgment on
nonuse.
2. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes proceeding. Austl. Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 n.4 (2014)). To establish entitlement to a statutory cause of
action on summary judgment, a plaintiff must demonstrate the absence of a genuine
dispute of material fact that it has (i) an interest falling within the zone of interests
protected by the statute, and (ii) a reasonable belief in damage proximately caused
by the registration of the mark. See Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th
1067, 1070 (Fed. Cir. 2022) (citing Lexmark Int’l, Inc., 572 U.S. at 129); Corcamore,
LLC v. SFM, LLC, 978 F.3d 1298, 1303-05 (Fed. Cir. 2020); Empresa Cubana Del
Tabaco, 753 F.3d at 1275.
At the outset, we note that Applicant does not contest Opposer’s entitlement to a
statutory cause of action to pursue its opposition. In any event, we find that Opposer

Opposition No. 91297708
10
has made the requisite showing on summary judgment as to its entitlement by
submitting, with its notice of opposition, copies of its pleaded registrations obtained
from the United States Patent and Trademark Office’s (USPTO) Trademark Status
and Document Retrieval (TSDR) database, showing their current title and status (1
TTABVUE 50-69), see Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1), and
asserting “[a] claim of likelihood of confusion that ‘is not wholly without merit’[.]”
DeVivo v. Ortiz, No. 91242863, 2020 WL 1227592, at *2 (TTAB 2020); see also
Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000).
Once a plaintiff demonstrates its entitlement to a statutory cause of action on one
ground, it has the right to assert any other legally sufficient ground in this
proceeding. See Int’l Dairy Foods Ass’n v. Interprofession du Gruyère, No. 91232427,
2020 WL 4559436, at *10 (TTAB 2020).
3. Nonuse
Section 45 of the Trademark Act defines “use in commerce” for services as:
[T]he bona fide use of a mark in the ordinary course of trade, and not
made merely to reserve a right in a mark. . . . [A] mark shall be deemed
to be in use in commerce . . . on services when it is used or displayed in
the sale or advertising of services and the services are rendered in
commerce, or the services are rendered in more than one State or in the
United States and a foreign country and the person rendering the
services is engaged in commerce in connection with the services.
15 U.S.C. § 1127.
An application based on use of the mark in commerce under Section 1(a) of the
Trademark Act, as in this case, is void ab initio if the mark was not in use in commerce
in connection with the goods or services identified in the application at the time the
application was filed. See 15 U.S.C. § 1051(a); Trademark Rule 2.34(a)(1)(i), 37 C.F.R.

Opposition No. 91297708
11
§ 2.34(a)(1)(i). See also, e.g., Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357
(Fed. Cir. 2009) (“The registration of a mark that does not meet the use requirement
is void ab initio.”); Clorox Co. v. Salazar, No. 91198922, 2013 WL 5498171, at *4
(TTAB 2013) (discussing summary judgment motion on claim that applicant had not
made bona fide use of its mark in commerce as of the filing date of applicant’s use-
based application); ShutEmDown Sports Inc. v. Lacy, No. 92049692, 2012 WL
684464, at *11-12 (TTAB 2012) (nonuse by respondent at the time of filing the
underlying use-based application; cancellation granted).
To prevail on its nonuse claim at summary judgment, Opposer must establish that
there is no genuine dispute as to any material fact that Applicant was not using the
subject mark in commerce in connection with the services in the subject application
when the application was filed on March 7, 2024. See United Glob. Media Grp., Inc.
v. Tseng, No. 91200786, 2014 WL 5035517, at *6-11 (TTAB 2014).
In support of its motion, Opposer provides the declaration of its counsel, Randolph
E. Digges, III, by which Mr. Digges introduces, inter alia, Opposer’s RFA.11 See 13
TTABVUE 13-14, 35-39. By way of its deemed admissions, Applicant has admitted
that:
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with quality management services, namely,
quality evaluation and analysis, quality assurance, and quality
control, in the field of artificial intelligence, quality management,
software development, conformity assessment, and finance, namely,
11 By his declaration, Mr. Digges also introduces file records for Applicant’s subject
application from the USPTO’s TSDR electronic database. See 13 TTABVUE 16-30. This
submission was unnecessary, as the file of the subject application is automatically of record
by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).

Opposition No. 91297708
12
mortgages, loans, and currency using conformity science-based
technology, governance, risk management, energy efficiency,
quantum computing, and regulatory management.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with application service provider (ASP)
featuring software using artificial intelligence for systems learning,
finance, regulatory management, energy efficiency, risk
management, and commercialized quantum computing.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with application service provider, namely,
hosting, managing, developing, analyzing, and maintaining
applications, software, and websites of others in the fields of
organizational governance, management, operations, and risk
management processes.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with artificial intelligence as a service
(AIAAS) featuring software using artificial intelligence for systems
learning, finance, regulatory management, energy efficiency, risk
management, and commercialized quantum computing.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with authentication of data in the field of
regulatory records, financial records, corporate records, personal
records, and business transactions using blockchain technology.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with providing temporary use of online non-
downloadable software and Software as a Service (SaaS) services
featuring software for artificial intelligence, quality management,
software development, conformity assessment, and finance, namely,
mortgages, loans, and currency using conformity science-based
technology, governance, risk management, energy efficiency, and
regulatory management.
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with providing temporary use of online non-
downloadable software and web-based applications for cryptofinance
trading, cloud storage of data, trading in loans, mortgages, or
financial securities, risk management, and regulatory conformity of
organizations.

Opposition No. 91297708
13
• Applicant has never actually used Applicant’s Mark in U.S.
commerce in connection with providing temporary use of a web
application for sharing blockchain-based regulatory and financial
records.
Id. 37-38 (RFA Nos. 17-24).
These admissions are sufficient for Opposer to demonstrate that there is no
genuine dispute of material fact that Applicant’s proposed mark was not in use in
commerce in connection with the services identified in the application on March 7,
2024 (i.e., the filing date of the application).12 See Fed. R. Civ. P. 56(c)(1)(A) (“A party
asserting that a fact cannot be . . . genuinely disputed must support the assertion by
. . . citing to particular parts of materials in the record, including . . . admissions.”);
Learning Journey Int’l, L.L.C., 2024 WL 4117143, at *5 (“Deemed admissions are
competent to demonstrate that there is no genuine dispute of material fact on a
motion for summary judgment.”).
In response, Applicant argues, inter alia, that the evidence attached to its brief,
including an image of a specimen of use filed in connection with its subject
application,13 establishes the existence of genuine disputes of material fact, and that
the parties’ “[c]ontradictory [p]ositions [c]reate a [c]redibility [d]ispute” that cannot
12 Applicant’s effective admissions of nonuse pertain to the entirety of the services set forth
in the subject application. See supra pp. 2-3. The remaining wording (i.e., “all of the foregoing
excluding the facilitation or provision of consumer or business loans or credit, loan payment
or loan transfer services, credit rating or credit monitoring services, and software or
platforms for monitoring or improving consumer or business credit quality”) is exclusionary.
See id. at 3.
13 We note that this evidence has not been authenticated by a declaration. See Trademark
Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 704.03(a) (2026).

Opposition No. 91297708
14
be resolved as a matter of law. See 15 TTABVUE 3-6, 19. Applicant’s argument is not
well taken.
When matter has been conclusively established under Rule 36, it is
taken as a judicial, rather than an evidential, admission that “cannot be
rebutted by contrary testimony or ignored by the [Board] simply because
it finds the evidence presented by the party against whom the admission
operates more credible,” and this “applies equally to those admissions
made affirmatively and those established by default, even if the matters
admitted relate to material facts that defeat a party’s claim.”
Learning Journey Int’l, L.L.C., 2024 WL 4117143, at *5 (quoting Am. Auto. Ass’n
(Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir.
1991)). Accordingly, Applicant’s evidence “cannot raise a genuine dispute as to the
material facts that have been conclusively established through . . . deemed
admissions.” Id. at *7.
Because there is no genuine dispute of material fact that Applicant did not use
the subject mark in connection with the services identified in the subject application
as of the filing date thereof, application Serial No. 98438086 is void ab initio. See
Aycock Eng’g, Inc., 560 F.3d at 1357. In view of the foregoing, Opposer’s motion for
partial summary judgment on the nonuse claim is granted.14
IV. Applicant’s Unconsented Motion to Amend
Applicant seeks to amend the identification of services in its subject application
to “eliminate[ ]” the alleged “overlap” in the parties’ services. See 16 TTABVUE 8.
14 Because the notice of opposition has been granted on the ground of nonuse, we need not
reach Opposer’s nonownership, likelihood of confusion, or dilution claims. See Learning
Journey Int’l, L.L.C., 2024 WL 4117143, at *7 n.21.

Opposition No. 91297708
15
Because the proposed amendment cannot cure an application that is void ab initio,
the proposed amendment is moot and we need not consider the same.
V. Summary
Opposer’s motion for leave to file a late reply is denied.
Opposer’s motion for partial summary judgment on its nonuse claim is granted,
the opposition is sustained on the ground of nonuse, and registration to Applicant is
refused.
Applicant’s unconsented motion to amend the identification of services in its
subject application is moot.