Thomas Fauntleroy v. Khalil Bilal and Shirley Bilal

OCR transcription for search; preserved printed pages are authoritative

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: February 18, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Thomas Fauntleroy

V.
Khalil Bilal and Shirley Bilal

Opposition No. 91284472

Thomas Fauntleroy, pro se.

Khalil Bilal and Shirley Bilal, pro se.

Before Lykos, Heasley, and Stanley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:

Musical groups frequently give rise to trademark disputes. See, e.g., Wonderbread
5 v. Gilles, No. 3691948, 2015 WL 4880986 (TTAB 2015). This case is no exception.
This is an opposition proceeding litigated by pro se parties. And it reads that way.
Although the parties were advised to seek counsel, they proceeded on their own,
creating a tortuous, winding trail of unsupported claims, inadmissible evidence, and

irrelevant arguments.

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Applicant Khalil Bilal is a former member of the musical group “THE UNIFICS.”
He and Applicant Shirley Bilal have filed an intent-to-use Application seeking
registration on the Principal Register of the mark THE UNIFICS (in standard
characters) for “entertainment services in the nature of live vocal performances by a
musically vocal group,” in International Class 41.1
Opposer, Thomas Fauntleroy, a founding member of the musical group, opposes
registration, primarily on the grounds that he is the common law owner of the mark
THE UNIFICS for musical entertainment, and that registration of Applicant’s mark
is likely to cause confusion with his common law mark under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d).
The foregoing is a distillation and clarification of the issues. The pleadings and
proof are far muddier.
I. The Pleadings
Opposer’s original “Notice of Opposition” consisted of a photocopy of a one-page
CERTIFICATE OF ASSUMED OR FICTITIOUS NAME by which Garrett L. Hall,
not Opposer Fauntleroy, purported to adopt THE UNIFICS as the assumed or
fictitious name of his business in Newport News, Virginia.2 The ESTTA cover sheet
helpfully explained the grounds for opposition: Priority and likelihood of confusion;
nonuse of the mark in commerce; failure to function as a mark; and Applicant[s] not
1 Application Serial No. 97391501 was filed on May 2, 2022 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicants’ allegation of a bona fide intention
to use the mark in commerce.
2 1 TTABVUE 3.

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the rightful owners of the mark for the identified services.3 Applicants, in their
Answer, essentially denied these salient grounds for opposition.4
A Board Interlocutory Attorney held a discovery conference with the parties and
issued an Order stating in pertinent part: “The parties, who are each currently
appearing pro se, were advised that they have the option to retain counsel at any
time. The parties were also advised that, due to the nature of the proceedings, legal
counsel was strongly advised.”5 The parties did not heed this sage advice, and
assumed the risk of representing themselves.
As the Board has made clear, “because the governing practices and procedures in
proceedings before the Board are quite technical and highly specialized, it is strongly
recommended that an attorney knowledgeable about trademark law represent a
party.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
§ 114.01 (2025). “Strict compliance with the Trademark Rules of Practice, and where
applicable the Federal Rules of Civil Procedure and the Federal Rules of Evidence, is
required of all parties, whether or not they are represented by counsel. …
Accordingly, [the parties,] layperson[s] unfamiliar with the Trademark Rules of
Practice, ha[ve] assumed the responsibility and risk of representing [themselves].”
Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, *1 (TTAB 2020).
3 1 TTABVUE 1-2. Citations to the briefs and other materials in the record refer to the Board’s
TTABVUE online docket system.
4 4 TTABVUE 2.
5 Board Order, 5 TTABVUE 2.

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Opposer filed an Amended Notice of Opposition, in which he averred in a preamble
that:
I oppose the application to register the mark, “the Unifics”, in whole,
because I believe that I am the rightful owner of the mark. I feel that I
would be damaged by applicant’s registration of this mark. Because the
likelihood of confusion would be great, I believe that my business relations
would be jeopardized. I have a real interest in the mark. I am currently
using the mark in commerce, and I have done so, legally, for the past 19
years. I shared membership with the joint applicant, Khalil Bilal, in the
singing group, “the Unifics”, from 1967 to 1972, when the group disbanded.
The group reassembled in 2004 when Mr. Bilal and I were again co-
members in the group. After a short time, Mr. Bilal found it necessary to
resign from the group in 2004. Since then, I have maintained consistent
use in commerce of said mark from 2004 to the present.
There are multiple grounds for my opposition listed below, to include the
likelihood of confusion, no use of mark in commerce before application,
failure to function as a mark, and applicant is not the rightful owner of the
mark.6
The Amended Notice of Opposition then listed each of the four grounds in boldface
type, followed by interrogatory-like questions. For example:
1. LIKELIHOOD OF CONFUSION:
Please confirm or deny, that at the time of your filing, you and
your joint-applicant were aware of another mark, “the Unifics”,
used in commerce and identical to the one for which you were
applying.
2. In reference to item 1, please confirm or deny your belief that
the registration of this mark would cause confusion.7
Despite this irregularity in the pleadings, Applicant Khalil Bilal answered on
behalf of the Applicants. In pertinent part:
Neither Mr. Fauntleroy nor I are owners of the Unifics trademark. The
only difference is that I have applied for and paid the appropriate fees and
6 Amended Notice of Opposition, 9 TTABVUE 2.
7 Amended Notice of Opposition, 9 TTABVUE 3.

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Mr. Fauntleroy has not. If he were the legal owner of the trademark, then
I would not have applied for the trademark. He says that he has
maintained consistent use in commerce of the mark from 2004 to the
present, yet he signed over the Unifics name to Garrett Hall [who filed the
CERTIFICATE OF ASSUMED OR FICTITIOUS NAME] in 2018….
1. LIKELIHOOD OF CONFUSION: I confirm that I was aware of another
group using the name Unifics in commerce at the time of my filing, and
that there were no original members of the original Unifics performing
on stage. This constituted a violation of Virginia’s State Legislation (the
Truth in Music Advertising Act) which states that there must be at
least one original member performing in order to use the name of a
previously established group (the Unifics).
2. I deny and disagree with this statement because the registration of this
trademark would not cause confusion. This trademark will be
advertised as the original Unifics including an original member in the
line-up under the official trademark lable [sic], thus removing any
doubts and/or confusions.8
The parties have fully briefed the case.9
II. Applicable Law
A. Sufficiency of the Pleadings
The Amended Notice of Opposition, liberally construed, states a claim under
Section 2(d) of the Trademark Act for prior ownership of a mark that is confusingly
similar to Applicants’ applied-for mark. 15 U.S.C. § 1052(d). Judging from the
Answer, Applicants labor under the misapprehension that a mark must be registered
with the USPTO to be valid and enforceable. Actually, “[s]ection 2(d) challenges may
be based either on ownership of a registered mark (which is not implicated here) or
prior use of an identical or similar mark.” Wonderbread 5, 2015 WL 4380986, at *7 n.
8 Answer to Amended Notice of Opposition, 10 TTABVUE 2-3.
9 Opposer filed his initial brief at 30 TTABVUE and then one day later filed an “amended”
trial brief at 31 TTABVUE. We accept the amended brief as Opposer’s operative brief.

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8. “Under the Lanham Act, a party may file an opposition on the basis of ‘a mark or
trade name previously used in the United States by another and not abandoned.’ 15
U.S.C. § 1052(d).” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1360-
61 (Fed. Cir. 2022). See also Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 975 (Fed. Cir.
1993) (“Trademark ownership results only from use, not from registration.”).
The Amended Notice of Opposition fails to state a claim as to Opposer’s nonuse
claim. Because the Application is based on intent-to-use under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), Applicants need not show ownership or use of
the mark prior to its filing. Norris v. PAVE: Promoting Awareness, Victim
Empowerment, No. 91234909, 2019 WL 4785638, *5 (TTAB 2019) (“a claim that an
applicant is not the rightful ‘owner’ of the applied-for mark is not available when the
application is not based on use of the mark in commerce. That is, the statutory basis
for a non-use claim is under Section 1(a) and, as such, the claim lies solely for a use-
based application.”), cited in Hole In 1 Drinks, 2020 WL 859853, at *6-7. We therefore
sua sponte strike this claim as legally futile.
Opposer did not pursue his “failure to function” ground for opposition in his
briefing, and it is accordingly waived or forfeited. In re Princeton Equity Grp., LLC,
No. 97397212, 2025 WL 1638891, *2 n. 15 (TTAB 2025).
This opposition thus boils down to a claim of prior common law rights in and
ownership of a mark that is confusingly similar to the applied-for mark. The
likelihood of confusion is a given in this case. “With regard to the Section 2(d) claim,
when the parties are claiming rights in the same mark for the same goods or services,
likelihood of confusion is inevitable.” Wonderbread 5, 2015 WL 4380986, at *7.

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It is Opposer’s burden to prove entitlement to maintain this opposition proceeding
and his prior common law use and ownership of the THE UNIFICS mark. “It is well
established that, in opposition proceedings, the burden of proof rests on the opposer.
See Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 973 (Fed. Cir. 2018).”
Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1365 (Fed. Cir. 2023).
As plaintiff, Opposer bears the burden of proving its entitlement to a
statutory cause of action and its Section 2(d) claim by a preponderance of
the evidence. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
144 (2015) (“The party opposing registration bears the burden of proof, see
[Trademark Rule 2.116(b), 37 C.F.R.] §2.116(b), and if that burden cannot
be met, the opposed mark must be registered, see 15 U.S.C. §1063(b)”).
DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL
4449409, *1 (TTAB 2024).
“Opposer must prove by a preponderance of the evidence that its common law
rights in the … mark were acquired before any date upon which Applicant may rely.”
Id. at *11. In this case, the earliest date on which Applicants may rely is their May
2, 2022 filing date. Syngenta Crop Prot. Inc. v. Bio-Chek LLC, No. 91175091, 2009
WL 691309, *5 (TTAB 2009) (“applicant may rely without further proof upon the
filing date of its application as a ‘constructive use’ date for purposes of priority.”).10
The key issue here may be clarified by emphasis. It’s not whether there has been
prior common law use of the THE UNIFICS mark. It’s whether the named Opposer,
10 Applicants state in their brief, “We deny the Plaintiff’s allegation that we have used the
Unifics name in commerce. We have filed an application for permission to use the Unifics
Trademark and are waiting for a decision from the TTAB.” Applicants’ brief, 32 TTABVUE
16.

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Thomas Fauntleroy, has proven that he has made prior common law use of the mark
in his individual capacity.
The evidentiary record, however, is largely inadmissible or unclear on this key
issue.
B. Entitlement and Prior Proprietary Rights
“Entitlement to a statutory cause of action is a requirement that must be proven
by the plaintiff in every inter partes case. See Australian 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)).” Look Cycle Int’l
v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., No. 92079409, 2024 WL 3739358,
*3 (TTAB 2024).
To establish entitlement to a statutory cause of action under Trademark
Act Section 13, 15 U.S.C., § 1063, a plaintiff must demonstrate “an interest
falling within the zone of interests protected by the statute and ...
proximate causation.” Corcamore [LLC v SFM,] 978 F.3d [1298,] 1303 (Fed.
Cir. 2020)] … see also Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067,
1070 (Fed. Cir. 2022). Stated another way, a plaintiff is entitled to bring a
statutory cause of action by demonstrating a real interest in the proceeding
and a reasonable belief of damage. Australian Therapeutic Supplies Pty.
Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1374-75 (Fed. Cir. 2020); see also
Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed.
Cir. 2014).
DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL
4449409, *10 (TTAB 2024). “In other words, [Opposer] must establish that its harm
is not ‘too remote’ from [Applicants’] alleged unlawful conduct.” Luca McDermott
Catena Gift Trust v. Fructuoso-Hobbs SL, 102 F.4th 1314, 1325 (Fed. Cir. 2024).
Opposer’s Amended Notice of Opposition states a plausible claim of prior common
law proprietary rights in THE UNIFICS for services essentially identical to

Opposition No. 91284472
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Applicants’. This suffices to show entitlement at the pleading stage. Tiger Lily
Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1359 (Fed. Cir. 2022) (“Under the
Lanham Act, a party may file an opposition on the basis of ‘a mark or trade name
previously used in the United States by another and not abandoned.’ 15 U.S.C.
§ 1052(d)”).
However, Opposer, as plaintiff, “must maintain its entitlement to the statutory
cause of action throughout the proceeding and affirmatively prove its existence at the
time of trial by introducing evidence to support the allegations in its pleading that
relate to such entitlement as an element of its case-in-chief.” Philanthropist.com, Inc.
v. Gen. Conf. Corp. of Seventh-Day Adventists, No. 92065178, 2021 WL 2472776, *4
(TTAB 2021), aff’d mem., 2022 WL 3147202 (Fed. Cir. 2022).
III. Application to The Evidentiary Record in This Case
A. The Record
[W]e observe at the outset that the record is hardly a model of clarity.” UVeritech
v. Amax Lighting, 2015 WL 4380998, *3 (TTAB 2015). The record includes the
pleadings and the file of Applicants’ Application, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b). Beyond that, it strays into uncharted waters.
Under the Board’s November 16, 2023 order, Opposer’s trial period ended on
August 14, 2024. (13 TTABVUE). Opposer did not file any testimony or evidence
during his trial period, and on October 9, 2024, the Board issued an Order under
Trademark Rule 2.132(a), 37 C.F.R. § 2.132(a), requiring Opposer to show cause why
the Board should not treat his failure to file testimony or evidence during his assigned

Opposition No. 91284472
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trial period as a concession of the case. (18 TTABVUE). Opposer requested an
extension of time to file his evidence (20 TTABVUE), which the Board construed as a
motion to reopen his first trial period under Fed. R. Civ. P. 6(b)(1)(B) and granted the
motion as conceded. (23 TTABVUE). Opposer then submitted:
• Declarations of Charlie Lockhart, Garrett Hall, Ned Harris, and Bruce Justice,
all professional singers, Sandy Chase, promoter of entertainment events, and
Velma Myers, proprietor of an establishment venue that has hired The Unifics
(26 TTABVUE).
• Notice of reliance attaching hotel receipts for the Unifics; Performance
Agreements for the Unifics (27 TTABVUE).11
For their part, Applicants submitted:
• Notice of Reliance containing Opposer’s responses to requests for admission; a
copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME” that was
attached to the original Notice of Opposition (19 TTABVUE).
• Notice of Reliance containing Opposer’s responses to requests for admission;
listing the founding members of the Unifics singing group at Howard
University (including Opposer Thomas Fauntleroy, Applicant Khalil Bilal, and
four others); a transcription of an advertising flyer promoting a March 2, 2024
Unifics event “in which the replacement members are portrayed as the original
members”; and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS
11 Opposer’s notice of reliance also lists other documents, but those documents were not
attached.

Opposition No. 91284472
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NAME” that was attached to the original Notice of Opposition (28
TTABVUE).12
B. Evidentiary Issues
Most of the parties’ proffered materials, as presented on this record, are not
admissible.
1. Opposer’s Testimony Declarations
“Opposition proceedings before the TTAB are in many ways ‘similar to a civil
action in a federal district court.’” B&B Hardware, Inc. v. Hargis Industries, Inc., 575
U.S. 138, 143 (2015) (quoting TBMP § 102.03). Testimony must be under oath. Id. at
144. “The testimony of witnesses in inter partes cases may be submitted in the form
of an affidavit or a declaration pursuant to [Trademark Rule] § 2.20 and in
conformance with the Federal Rules of Evidence, filed during the proffering party’s
testimony period ….” Trademark Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1), quoted in
WeaponX Performance Products. Ltd. v. Weapon X Motorsports, Inc., 2018 WL
1326374, *3 (TTAB 2018).
Opposer’s declarations are not properly verified.
Under Trademark Rule 2.20:
the language of 28 U.S.C. 1746, or the following declaration language, may
be used:
12 Applicants prematurely submitted Opposer’s responses to Requests for Admission (16
TTABVUE 2-4), as well as a Notice of Reliance with Opposer’s responses to Requests for
Admission and Applicants’ pretrial disclosures (17 TTABVUE). The Board informed them
that these would be given no consideration. Order, 18 TTABVUE 2 n.1. They are, in any
event, duplicative of evidence submitted later in the proceeding.

Opposition No. 91284472
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The signatory being warned that willful false statements and the like
are punishable by fine or imprisonment, or both, under 18 U.S.C.
1001, and that such willful false statements and the like may
jeopardize the validity of the application or submission or any
registration resulting therefrom, declares that all statements made of
his/her own knowledge are true and all statements made on
information and belief are believed to be true.
37 C.F.R. § 2.20.
Alternatively, the language prescribed by 28 U.S.C. § 1746 for declarations
executed within the United States is “I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746.
These provisions have one thing in common: “In either case, a declarant will be
subject to United States perjury laws if willful or knowing false statements are
made.” M/S R.M. Dhariwal v. Zarda King Ltd. and Global Tech. & Trade Marks Ltd.,
No. 91231033, 2019 WL 1915763, *2 (TTAB 2019) (quoting In re Dermahose Inc., No.
76585901, 2007 WL 499919, *5 (TTAB 2007) (“the common feature of oaths, sworn
statements, unsworn declarations under penalty of perjury, and declarations
under Rule 2.20 is that the person making the statement is subjecting himself or
herself to criminal penalties for making statements that the person knows are not
true.”) (emphasis added)).
None of Opposer’s declarations attests to an awareness of the penalty for perjury.
(26 TTABVUE). A declaration that does not attest to an awareness of the penalty for
perjury is unacceptable. TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 804.01(b) (Nov. 2025). If it is not properly verified under Trademark Rule 2.20, it is
not testimony. TV Azteca, S.a.b. De C.v. v. Martin, No. 92068042, 2018 WL 6504575,
*4 (TTAB 2018). (quoting McDonald’s Corp. v. McKinley, 1989 WL 274414, *1 n.4

Opposition No. 91284472
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(TTAB 1989) (“Applicant’s unsworn statement does not constitute testimony in the
absence of an oath or affirmation thereof.”)). “Evidence not obtained and filed in
compliance with these sections will not be considered.” 37 CFR § 2.123(k); accord
TBMP § 706 (“Evidence not obtained and filed in compliance with the rules of practice
governing inter partes proceedings before the Board will not be considered by the
Board.”).
Consequently, because Opposer’s declarations are not properly verified, they do
not substantially comply with the requirements for declaration testimony; they are
inadmissible, and cannot be considered. 37 C.F.R. §§ 2.20, 2.123(a)(1), cited in M/S
R.M. Dhariwal v. Zarda King, 2019 WL 1915763, at *2.
2. Opposer’s Notice of Reliance
Opposer’s Notice of Reliance fares no better. “The categories of documents which
may be submitted under a notice of reliance are strictly limited. The procedure may
be used to introduce only discovery depositions; interrogatory responses, admissions
or written disclosures of an adverse party, Trademark Rule 2.120(j) (3) (1); trademark
registrations, Trademark Rule 2.122(d); and printed publications or official records,
Trademark Rule 2.122(d).” Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 2009 WL
691309, at *3.
The materials Opposer submitted, hotel invoices and Unifics performance
contracts, do not fall into any of those categories. To render them admissible, Opposer
needed to identify and authenticate them through the testimony of a competent
witness. Id. He did not do so, and they are not properly in evidence. See Wet Seal Inc.
v. FD Management Inc., No. 91157022, 2007 WL 458529, *2 (TTAB 2007); Calypso

Opposition No. 91284472
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Tech., Inc. v. Calypso Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, *3 (TTAB
2011) (“A party seeking to make evidence of record by notice of reliance must follow
the rules and case law; if material cannot be made of record by notice of reliance it
will not be considered even if the adverse party does not specifically object to it, as
long as the adverse party does not specifically treat it as of record such that we can
say it has been stipulated into the record.”).
The same holds true for the documents Opposer listed in his Notice of Reliance,
but did not attach. “A notice of reliance is essentially a cover sheet for the materials
sought to be introduced.” TBMP § 704.02. A party may make such evidence of record
by filing it as exhibits under cover of one or more notices of reliance. See, e.g., RLP
Ventures, LLC v. Panini Am., Inc., No. 91268816, 2023 WL 6442609, *7 (TTAB 2023).
Again, Opposer did not do so, and the listed materials are not in evidence.
3. Applicants’ Notice of Reliance
Applicants, for their part, submitted two documents that may be properly
introduced via a Notice of Reliance: Opposer’s admissions to Requests for Admission,
and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME,” an
official record. (28 TTABVUE 7-9, 24.) Trademark Rules 2.120(k)(3), 2.122(e), 37
C.F.R. § 2.120(k)(3), 2.122(e). Applicants’ remaining submissions are not in evidence.
Hiraga v. Arena, No. 92047976, 2009 WL 723334, *3 (TTAB 2009) (“Hence, under the
Trademark Rules, these documents, which have not been otherwise authenticated,
may not be made of record by notice of reliance alone. Such evidence not obtained and
filed in compliance with the Trademark Rules has not been considered.”).

Opposition No. 91284472
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C. Discussion
Again, the key issue in this case is whether the sole named Opposer, Thomas
Fauntleroy, has proven that he has made prior common law use of the mark in his
individual capacity.
The purpose of a service mark is to “to identify and distinguish the services of one
person ... from the services of others and to indicate the source of the services.” 15
U.S.C. § 1127.” Lyons v. American College of Veterinary Sports Medicine and
Rehabilitation, 859 F.3d 1023, 1027 (Fed. Cir. 2017). “One who opposes registration
to an applicant under section 2(d) is attempting to protect his individual rights, as
the owner of some means of identifying the source of his goods [or services], by
preventing registration of a mark so similar to that which he asserts identifies source
that concurrent use of the two is likely to cause confusion and thus foil the function
of his means of identification.” Otto Roth & Co. v. Universal Foods Corp., 640 F.2d
1317, 1320 (CCPA 1981) (emphasis added). His claim of entitlement to maintain this
opposition proceeding, as well as his claim of prior proprietary rights in the mark,
depend on this proof. “Under section 2(d), as utilized in an opposition, confusion, or a
likelihood thereof, is not recognized where one claiming to be aggrieved by that
confusion does not have a right superior to his opponent’s, or where he has not proved
that that which he claims identifies him as the source of goods or services actually
does so.” Id. at 1322.
Opposer’s briefing does not expressly address entitlement, but it does address the
use and ownership of the THE UNIFICS mark. Opposer’s problem is twofold. First,
Opposer has no admissible evidence, and therefore did not prove entitlement or

Opposition No. 91284472
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priority. And second, Opposer’s main and reply briefs pivot between his claim of
individual ownership to an alternative claim that the mark was instead used and
owned by a corporation he helped establish. He contends that:
• “The mark ‘UNIFICS’ has been used continuously and consistently by the
Plaintiff in connection with musical performances, recordings, and
merchandise for over 21 years.” (Opposer’s main brief, 31 TTABVUE 4.)
• “Founding of Modo Entertainment, Inc., a Management Company: Tom
Fauntleroy and Al Johnson were the original founding members of the group
known as the Unifics. Together, they established Modo Entertainment, Inc., a
company which managed, produced, published, and promoted the Unifics.”
(Id.).
• “Background and Ownership Rights In 2004, because of the departure from the
group of two of the original members, Gregory Cook and Khalil Bilal, (the
Defendant), the remaining two original members, Al Johnson and Thomas
Fauntleroy,(the Plaintiff) established Modo Entertainment, Inc., a
Virginia based corporation, to own, produce, publish, promote, and
manage the trademark ‘Unifics’ and all of its associated fiduciary
responsibilities.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.)
• “The untimely death of Al Johnson in 2013 marked a significant turning point
for the Plaintiff, after having performed nine years together with his friend
and colleague in the group. Because of this loss, Tom Fauntleroy retired from
performing on stage and transitioned into the role of full-time CEO of Modo
Entertainment, Inc. and continued to uphold the legacy of the Unifics,
maintaining the brand and its associated activities.” (Opposer’s main brief, 31
TTABVUE 6.)
• “This corporation still functions today, in 2025, to manage the group’s business
affairs.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.)
• “Velma Myers, a music promoter, stated: ‘I know Thomas Fauntleroy as the
manager of the group and have been familiar with his business operations and
the goods/services he provides with the Unifics for many years. I can also
attest to the fact that Modo Entertainment, Inc. has been actively
using the mark in commerce, and their performances have drawn
significant crowds.’” (Opposer’s reply brief, 33 TTABVUE 8.)

Opposition No. 91284472
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We reiterate that Opposer’s proffered declarations are not in evidence. We note,
however, that he misquotes Ms. Meyers’s declaration, which contains the first
sentence, but not the second, boldfaced sentence. (Meyers decl. ¶3, 26 TTABVUE 15.)
Opposer further states:
• “Performance Contracts: Exhibits contain Performance Agreements and
contracts bearing the name ‘Modo Entertainment, Inc. for The Unifics’ with
venues that demonstrate the Plaintiff's engagements under the mark, The
‘Unifics’.” (Opposer’s reply brief, 33 TTABVUE 9.)
The Performance Agreements were improperly attached to Opposer’s Notice of
Reliance, and not authenticated and introduced via testimony from a witness based
on personal knowledge. See Trademark Rule 2.122(e)(1) (specifying types of printed
publications and official records that may be introduced via notice of reliance). Even
if we were to consider this proffered evidence, the Performance Agreements pertain
to individual performances by the group, not trademark ownership. And Opposer did
not sign any of the agreements in his individual capacity; he signed them on behalf
of Modo Entertainment, Inc. For example:
 * *

Opposition No. 91284472

BY: Vanessa Jordan
Vanessa Jordon
The National R&B Music Society, Inc
436 Ebony Tree Avenue
Galloway, New Jersey 08205
(609) 339-6767

ARTIST —* Modo Entertai . Inc. For The Unifics

==

<< =

Thomas 2 Fat tleroy

Modo En ment, Inc.

713 Milford Avenue

Hampton, Va. 23661

(757) 722-4729 or (443) 600-0972

18 Opposer’s Notice of Reliance, exs. 3 and 4, 27 TTABVUE 18, 15.

- 18 -

13

Opposition No. 91284472

A PERFORMANCE AGREEMENT

Agreement made on this 22” day of May, 2012, by and between Willie Bacote aka “Moon Man" for D.R. Productions
(Promoter), and Modo Entertainment, Inc., for The Unifics (Artist), for The Unifics to perform at the National Guard
Armory, Philadelphia, Pennsylvania, is hereby stated with these conditions:

Artist: |The Unifics (Modo Entertainment, Inc.)
Address: 713 Milford Avenue
Hampton, VA 23661-1141
Phone: (757) 722-4729
Contact: Milton Delaney, Operations Director (443) 600-0972
Promoter: D.R. Productions
Address: 1007 Pleasant Valley Drive
Catonsville, Maryland
Contact: Willie Bacote aka “Moon Man” (443) 857-2771
Venue: National Guard Armory
2700 Southhampton Road
Philadelphia, Pennsylvania 19154
(215) 560-4798
Date of Performance: Saturday, June 9”, 2012
Time of Performance: First or Second in the performance line-up
Length Performance: 30 to 35 minutes
Sound Check Time: TBD (See attached Rider)
Performance Fee: Three Thousand Five Hundred Dollars, ($3,500.00) (See attached Rider)
Deposit: One Thousand Seven Hundred Fifty Dollars ($1,750.00) (See attached Rider)
Sound System: To be provided by Promoter. (See attached Rider)

Lighting: Promoter to supply a professional high wattage strobe light, a black light and two spot lights, to be
operated by qualified lighting technicians.

Transportation: Artist to provide transportation for Artist. (See altached Rider)
Band: Promoter to provide a music literate band for Artist. (See attached Rider)
Additiona] Items: Promoter to provide housing and local transportation (if required). (See attached Rider)

Artist's Signature: Promoters’ Signature:
)
31,06, Beet>
Thomas Willie Bacote aka “Moon Man”
Modo Entertainment, inc. / The Unifics D. R. Productions

Date Signed: 7 JUNE ZO|2Z- ee J— )2 vr

M4 Td., ex. 5, 27 TTABVUE 17.

-19-

Opposition No. 91284472
- 20 -
Thus, Opposer’s proffered Performance Agreements, combined with the abrupt
pivot in his briefing, serve only to undermine his claim to be the sole owner and source
of musical entertainment services provided under the mark.
Opposer’s inconsistent position is further compounded by his responses to
Applicants’ discovery requests. Applicants properly placed Opposer’s response to
request for admission No. 2 in evidence:

Opposition No. 91284472
- 21 -
Applicants make much of Opposer’s assignment of a percentage of ownership of
the mark to Garrett Hall, variously arguing that either:
(i) “Mr. Garrett Hall now shares a percentage of the business ownership of
the Unifics name between himself and the Plaintiff. … Now they’re
operating as a partnership and not as a sole-proprietorship, as stated in
the signed Certificate of Assumed or Fictitious Name (2018).” (Applicants’
brief, 32 TTABVUE 10.)
(ii) Alternatively, “[t]he signed, attached certificate states that Garrett Hall is
the sole-proprietor (owner) of ‘The Unifics’ name. … This document
nullifies the Plaintiff's claim of individual or shared ownership of ‘The
Unifics’ trademark.” (Applicants’ brief, 32 TTABVUE 19; certificate at 28
TTABVUE 24.)
We do not find the Certificate of Assumed or Fictitious Name to be dispositive of
the issue of ownership of the THE UNIFICS mark. As a noted commentator has
observed, “the fact that [a person] merely filed a fictitious name registration with a
county or state clerk is entitled to little, if any, weight in litigation over the corporate
or fictitious name. It certainly cannot provide a defense against a proven senior user.”
1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:9 (5th ed. Dec. 2025). Cf.
Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 640 n.7 (D.C. Cir. 1982) (Pennsylvania
corporation) (“But this circuit, following the general rule, has declined to accord any
weight to a state agency's general acceptance of a corporate name.”), cited in 1
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:8.
This muddled evidentiary record, however, further undermines Opposer’s claim
of service mark rights in his individual capacity.

Opposition No. 91284472
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D. Conclusions on Proof of Prior Proprietary Common Law
Rights and Entitlement
In his Amended Notice of Opposition, Opposer stated, “I oppose the application to
register the mark, ‘the Unifics’, in whole, because I believe that I am the rightful
owner of the mark. I feel that I would be damaged by applicant’s registration of this
mark.”15 As our primary reviewing Court has made clear, “[h]owever, our precedents
suggest something more -- that the ‘belief of damage’ required by Section 13 of the
Lanham Act is more than a subjective belief. … The belief must have a ‘reasonable
basis in fact.’” Ritchie v. Simpson, 170 F.3d 1092, 1098 (Fed. Cir.1999). As noted,
Opposer was required to not only plead, but prove his entitlement at trial. “Broad
general statements by a witness that lack sufficient detail are usually not adequate,
especially in the absence of corroborating documentary evidence.” Shenzhen IVPS
Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL 16646840, *10 (TTAB
2022). See also Tao Licensing LLC v. Bender Consulting Ltd., No. 92057132, 2017 WL
6336243, *9 (TTAB 2017) (the presence of corroborating business documentation
would strengthen a party’s testimony, “and the absence of such records does the
opposite.”). As noted, it is Opposer’s burden to prove prior common law rights in his
claimed mark as a crucial element of his Section 2(d) claim.
Ultimately, however, this evidentiary record falls far short of carrying Opposer’s
burden of proof. If anything, it raises more questions than it answers about Opposer’s
claimed ownership of the THE UNIFICS mark. Opposer never introduces the “Group
15 Amended Notice of Opposition, 9 TTABVUE 2.

Opposition No. 91284472
- 23 -
Agreement” to which he alludes; never introduces corporate documents relating to
Modo Entertainment, Inc.; and never introduces documentation of the assignment to
Garrett Hall. We are left to guess whether, when, or by what means he (i) acquired a
proprietary interest in the THE UNIFICS mark, (ii) assigned it to Modo
Entertainment, Inc., and/or (iii) assigned an unspecified percentage interest in the
mark to Garrett Hall. Given this dearth of record evidence, we reach the same
conclusion as in Shenzhen: “In view of the vagueness and non-specific witness
testimony, and the lack of any corroborating documentary evidence, we find there is
insufficient evidence to support common law prior use....” Shenzhen, 2022 WL
16646840, at *11. Without proof of prior common law ownership, Opposer cannot
show entitlement or prevail on his Section 2(d) claim. Syngenta, 2009 WL 691309, at
*6.
IV. Decision
The opposition to registration of the mark in Application Serial No. 97391501 is
dismissed.