Camp Awesum, Inc. v. James M. O'Brien

Mailed: March 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
———
Trademark Trial and Appeal Board
———
Camp Awesum, Inc.
v.
James M. O’Brien
______
Cancellation No. 92084926
______
Kyle M. Costello of Boyle Fredrickson S.C.,
for Camp Awesum, Inc.1
Omid E. Khalifeh of Omni Legal Group,
for James M. O’Brien.
———
Before Larkin, English, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
1 The signature block at the end of the petition to cancel identifies Mr. Costello as the
“Attorney for Petitioner, Workshop Architects, Inc.” 1 TTABVUE 9. We assume this was
inadvertent, as Mr. Costello is identified as the attorney for Camp Awesum, Inc. elsewhere
in the petition and in subsequent submissions.
Citations to the record refer to TTABVUE, the Board’s online docketing system. The number
preceding “TTABVUE” corresponds to the docket entry number, and any numbers following
“TTABVUE” refer to the page numbers of the docket entry where the cited materials appear.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Cancellation No. 92084926
2
Petitioner Camp Awesum, Inc., petitions to cancel Respondent James M. O’Brien’s
registration on the Principal Register for the standard-character mark CAMP
AWESOME for “child care services,” in International Class 43.2
On the ESTTA3 cover sheet for the petition, Petitioner identifies the ground for
cancellation as misrepresentation of source under Trademark Act Section 14(3), 15
U.S.C. § 1064(3), specifically stating that “the registration is being used by, or with
the permission of, the registrant so as to misrepresent the source of the goods or
services on or in connection with which the mark is used.”4 However, in the body of
the petition, Petitioner presents allegations in support of a claim of likelihood of
confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).5 Specifically,
Petitioner alleges, inter alia, prior common law use of the mark CAMP AWESUM for
“providing camps for persons with intellectual or developmental disabilities services,”
and claims that Respondent’s mark “so resembles Petitioner’s marks, as to be likely
to cause confusion.”6 The petition also alleges that the USPTO refused Petitioner’s
applications for registration of the standard-character mark CAMP AWESUM,7 and
2 Registration No. 4674797, issued on January 20, 2015; renewed. The registration includes
a disclaimer of “CAMP.”
3 “ESTTA” refers to the Board’s Electronic System for Trademark Trials and Appeals. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 110.02 (2025).
4 Petition for Cancellation, 1 TTABVUE.
5 Id. at 3-9. Indeed, while the body of the petition to cancel does not specifically cite Section
2(d), it lists a single “count” of “likelihood of confusion.” Id. at 7.
6 Id. at 7-8.
7 Application Serial No. 97319611, filed on March 18, 2022, based on Petitioner’s allegation
of use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming January
1, 2004, as the date of first use anywhere and June 1, 2004, as the date of first use in
commerce. The application includes a disclaimer of “CAMP.”

Cancellation No. 92084926
3
composite mark ,8 both for “providing camps for persons with intellectual
or developmental disabilities,” based on a likelihood of confusion with Respondent’s
registered mark.
Respondent’s answer denies most of the allegations in the petition for cancellation,
but admits, in relevant part, that Petitioner filed the applications referenced above
and that these applications were refused based on a likelihood of confusion with
Respondent’s registration.9
The proceeding is fully briefed, and Respondent’s arguments reflect a presumption
that Petitioner’s claims are (1) misrepresentation of source and (2) likelihood of
confusion. We therefore address both claims. As explained below, Petitioner’s claim
8 Application Serial No. 97319825, filed on March 18, 2022, based on Petitioner’s allegation
of use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming April
15, 2016, as both the date of first use anywhere and the date of first use in commerce.
According to the mark description, “[t]he mark consists of the wording ‘CAMP’ appearing
above the wording ‘AWESUM’, with the first letters of each aligned at the left. To the left of
the wording appears a design of a stylized depiction of a body of water with trees along the
shoreline and wavy lines across the sky. In the center of the design appears the outline of a
five pointed star, which appears to be reflected in the representation of the body of water
below.” Color is not claimed as a feature of the mark. The application includes a disclaimer
of “CAMP.”
9 Respondent’s Answer, 4 TTABVUE 2-3. Respondent’s answer also includes a number of
“affirmative defenses.” Id. at 6-7. Some of these are merely arguments against Petitioner’s
likelihood-of-confusion claim and are not affirmative defenses at all. Id. The other asserted
defenses include “laches, acquiescence, and estoppel,” waiver by Petitioner’s “acts and
omissions,” and “unclean hands.” Id. Respondent did not argue any of these affirmative
defenses in its brief and thus they are waived. See, e.g., Alcatraz Media, Inc. v. Chesapeake
Marine Tours, Inc., No. 92050879, 2013 TTAB LEXIS 347, at *5 n.6, aff’d mem., 565 F. App’x
900 (Fed. Cir. 2014). Respondent’s answer also raises “fail[ure] to state a claim upon which
relief can be granted” as an “affirmative defense,” 4 TTABVUE 6, but this “defense” is more
accurately characterized “an assertion of the insufficiency of the pleading rather than a
statement of a defense to the merits of a claim.” Tequila Cuadra S. de RL de CV v.
Manufacturera de Botas Cuadra, S.A. de C.V., No. 91282327, 2025 TTAB LEXIS 207, at *2-
3. We discuss the sufficiency of Petitioner’s pleading of the misrepresentation-of-source claim
later in this opinion.

Cancellation No. 92084926
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based on likelihood of confusion is time-barred and thus we cannot consider it. We
deny the petition as to the misrepresentation-of-source claim.
I. The Record
The record includes the pleadings, the submissions of the parties during their
respective trial periods, and, by rule, Respondent’s involved registration file. See
Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). Petitioner has also submitted
copies of Application Serial Nos. 97319611 and 97319825, as well as selected Office
actions refusing registration of the applied-for marks. Under the circumstances of
this case, we find it unnecessary to specifically itemize the rest of the record here, but
it has been reviewed and considered in its entirety.10 See Quiktrip W., Inc. v. Weigel
Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (“We have held ‘on multiple
occasions that failure to explicitly discuss every issue or every piece of evidence does
not alone establish that the tribunal did not consider it.’” (quoting Novartis AG v.
Torrent Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017))); In re Miracle Tuesday
LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not
recite all of the evidence it considered does not mean the evidence was not, in fact,
reviewed.” (citing Plant Genetic Sys., N.V. v. Dekalb Genetics Corp., 315 F.3d 1335,
1343 (Fed. Cir. 2003))).
10 Respondent also filed a notice of deemed admissions, asserting that certain requests for
admission should be deemed admitted because Petitioner did not timely respond to them and
indicating Respondent’s intent to rely on these admissions. 18 TTABVUE 2-3. The purported
deemed admissions, to the extent relevant, appear to relate to Petitioner’s putative
likelihood-of-confusion claim. See id. at 13-15. As explained below, we do not reach the merits
of this claim because it is time-barred and thus we need not consider or address the purported
deemed admissions.

Cancellation No. 92084926
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II. Petitioner’s Entitlement to a Statutory Cause of Action
Establishing an entitlement to a statutory cause of action is a threshold
requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d
1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). Thus, Petitioner, as plaintiff in this
cancellation proceeding, must prove its entitlement to a statutory cause of action by
a preponderance of the evidence. See, e.g., Made in Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 TTAB LEXIS 228, at *8.
To establish an entitlement to a statutory cause of action, Petitioner must
demonstrate that it has: (1) an interest falling within the zone of interests protected
by the statute, and (2) a reasonable belief in damage proximately caused by the
registration of the mark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359,
1367 (Fed. Cir. 2025) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 129-134 (2014)); Corcamore, 978 F.3d at 1304-07; see also Made in
Nature, 2022 TTAB LEXIS 228, at *18.
Here, the record shows that Petitioner’s Application Serial No. 97319611, seeking
registration of the standard-character mark CAMP AWESUM for “providing camps
for persons with intellectual or developmental disabilities,” was refused under
Trademark Act Section 2(d) based on a likelihood of confusion with Respondent’s

Cancellation No. 92084926
6
registered mark.11 Respondent has admitted the same.12 Thus, Petitioner has a real
interest in the proceeding and a reasonable belief that it would be damaged by the
continued registration of Respondent’s mark, which establishes Petitioner’s
entitlement to a statutory cause of action. See, e.g., Australian Therapeutic, 965 F.3d
at 1375 (“A petitioner may demonstrate a real interest and reasonable belief of
damage where the petitioner has filed a trademark application that is refused
registration based on a likelihood of confusion with the mark subject to
cancellation.”); see also Enbridge, Inc. v. Excelerate Energy LP, No. 91170364, 2009
TTAB LEXIS 642, at *21 n.10 (“If an opposer can show standing as to one ground, it
has the right to assert any other ground as well.”).
III. Likelihood of Confusion
While Petitioner has established an entitlement to a statutory cause action
generally, Petitioner may not bring a likelihood-of-confusion claim under Trademark
Act Section 2(d) against Registration No. 4674797. The registration issued on the
Principal Register on January 20, 2015, and thus it was more than nine years old
when Petitioner filed its petition to cancel on April 12, 2024. Under Trademark Act
Section 14, a registration that has existed for at least five years on the Principal
Register may be cancelled only for a very limited set of potential grounds, including
genericness, functionality, abandonment, fraud, and misrepresentation of source, the
11 See Petitioner’s First Notice of Reliance, 9 TTABVUE 15-20 (final Office action concerning
Application Serial No. 97319611); Testimony Declaration, 14 TTABVUE 7 (declaration of
Benjamin Lentini, Petitioner’s President, regarding filing and refusal of Application Serial
No. 97319611).
12 Respondent’s Answer, 4 TTABVUE 3-4.

Cancellation No. 92084926
7
claim identified on the ESTTA cover sheet of Petitioner’s petition. See 15 U.S.C. §
1064(3). Likelihood of confusion, however, is not among these grounds, so a petition
based on this ground must be filed within five years of the relevant registration’s
issuance. See id.; Otto Int’l, Inc. v. Otto Kern GmbH, No. 92046167, 2007 TTAB LEXIS
62, at *3-4 (“It is well settled that the grounds on which a cancellation action may be
brought under Section 14 of the Trademark Act are limited for a registration that has
been in existence for five years; Section 2(d) is not one of these grounds.”); TBMP
§ 307.02(a) (“A petition to cancel a registration issued on the Principal Register under
the Act of 1946, on a ground not specified in Trademark Act § 14(3), Trademark Act
§ 14(5), or Trademark Act § 14(6) . . . must be filed within five years from the date of
the registration of the mark.”).
Accordingly, Petitioner’s putative likelihood-of-conclusion claim is time-barred
under Section 14(3) and we cannot consider it.
IV. Misrepresentation of Source
We turn now to Petitioner’s nominal misrepresentation-of-source claim under
Trademark Act Section 14(3), which, unlike a likelihood-of-confusion claim, is not
subject to a time limit on filing and therefore may be the basis for a petition to cancel
a registration that is more than five years old. See 15 U.S.C. § 1064(3). Specifically,
under Section 14(3), “[a] petition to cancel a registration of a mark . . . may . . . be
filed . . . [a]t any time if the registered mark is being used by, or with the permission
of, the registrant so as to misrepresent the source of the goods or services on or in
connection with which the mark is used.” Id.

Cancellation No. 92084926
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“[T]he term misrepresentation of source . . . refers to situations where it is
deliberately misrepresented by or with the consent of the registrant that goods and/or
services originate from a manufacturer or other entity when in fact those goods and/or
services originate from another party.” Osterreichischer Molkerei-und
Kasereiverband Registriete GmbH v. Marks & Spencer Ltd., No. 92011916, 1979
TTAB LEXIS 59, at *3, quoted in Otto Int’l, 2007 TTAB LEXIS 62, at *6. Therefore,
a misrepresentation-of-source claim goes beyond mere likelihood of confusion and
requires pleaded facts reflecting the respondent’s “deliberate misrepresentation” of
the source of the petitioner’s services; the respondent’s “blatant misuse of the mark”
in a manner calculated to trade on the goodwill and reputation of the petitioner; or
conduct amounting to the respondent’s “deliberate passing-off” of the petitioner’s
services as those of the respondent. Otto Int’l, 2007 TTAB LEXIS 62, at *9; see also
McDonnell Douglas Corp. v. Nat’l Data Corp., No. 92013998, 1985 TTAB LEXIS 144,
at *11 (stating that a claim of misrepresentation of source “must be supported by
allegations of blatant misuse of the mark by respondent in a manner calculated to
trade on the goodwill and reputation of petitioner”); cf. Bayer Consumer Care AG v.
Belmora LLC, No. 92047741, 2009 TTAB LEXIS 203, at *16-18 (finding
misrepresentation of source claim sufficient based on allegations that respondent
“copied petitioner’s mark, including its particular display, and virtually all elements
of its packaging”); E.E. Dickinson Co. v. T.N. Dickinson Co., No. 92013668, 1984
TTAB LEXIS 213, at *6-7, 9 (finding misrepresentation of source adequately pleaded
where petitioner alleged, inter alia, that respondent was using its marks on a bottle

Cancellation No. 92084926
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similar to petitioner’s, with a label that included “colorable imitations” of petitioner’s
marks).
Here, the record is devoid of any such pleading, arguments, or evidence. In fact,
after selecting the relevant Section 14(3) misrepresentation-of-source claim in the
ESTTA petition form, Petitioner did not again refer to the claim in the body of the
petition, let alone plead the elements of the claim. “[T]o properly allege
misrepresentation of source, a party must do more than make a bald allegation in the
language of the statute, as this does not give fair notice of the basis for petitioner’s
claim.” Otto Int’l, 2007 TTAB LEXIS 62, at *8.
Nor did Petitioner refer to the claim in its briefs.13 Instead, Petitioner’s arguments
and evidence relate wholly to supporting a general likelihood-of-confusion claim.
Specifically, Petitioner addresses priority of use, as well as various likelihood-of-
confusion factors under In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361
(CCPA 1973), including the similarity of the respective marks, services, and trade
channels; the relevant consumers and purchasing conditions; and actual confusion.14
And, tellingly, Petitioner’s trial brief states that the “issues before the Board” are (1)
13 When the subject registration is more than five years old, the ESTTA Petition for
Cancellation form allows the user to enter only those grounds for cancellation that are
enumerated in Trademark Act Section 14(3). See USPTO ESTTA USER’S GUIDE 93, 95,
https://estta.uspto.gov/estta12-usermanual.pdf. Thus, Petitioner would not have been able to
file a petition to cancel specifying a likelihood-of-confusion claim. This may explain why the
cover sheet of Petitioner’s petition specified the non-time-barred misrepresentation-of-source
claim as the ground for cancellation, but Petitioner thereafter addressed only a likelihood-of-
confusion claim.
14 See Petitioner’s Main Brief, 19 TTABVUE 16-22.

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whether Petitioner has priority of use and (2) whether there is a likelihood of
confusion between the parties’ marks.15
Because a misrepresentation-of-source claim is not time-limited under Section 14,
it is especially important that the claim be sufficiently pleaded. But, here, we find
that this is a case of a “Section 2(d) claim masquerading as a misrepresentation-of-
source claim.” Bayer, 2009 TTAB LEXIS 203, at *17 (cleaned up). Thus, the
misrepresentation-of-source claim was not sufficiently pleaded and we may deny the
petition for that reason alone. Alternatively, putting aside the insufficiency of the
pleading, Petitioner otherwise waived the claim by failing to argue the claim in its
brief.16 See, e.g., Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at
*3-4 (deeming opposer’s lack of bona fide intent to use claim and the family of marks
portion of its likelihood of confusion claim waived because they were not argued in
opposer’s brief).
Decision: Petitioner’s claim based on likelihood of confusion under Trademark
Act Section 2(d) is time-barred and thus we cannot consider it. We deny the petition
15 Id. at 7.
16 In fact, the term “misrepresentation” appears only once in Petitioner’s reply brief, and it
was not in reference to the misrepresentation-of-source claim, but in connection with an
argument that Respondent had mischaracterized the nature of the registered services when
addressing the similarity of the respective services. Petitioner’s Reply Brief, 23 TTABVUE
11. Respondent’s brief, on the other hand, does address the misrepresentation-of-source
claim, but only to point out that “Petitioner has produced no evidence of any intent by
Registrant to mislead or deceive,” as “[t]he record contains no testimony, document, or
communication showing that [Respondent] sought to trade on Petitioner’s reputation or to
pass off his services as those of Petitioner.” Respondent’s Brief, 22 TTABVUE 22. We agree.
Thus, even if Petitioner had sufficiently pleaded and not waived the claim, it could not have
succeeded on this record.

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11
to cancel as to the remaining claim of misrepresentation of source under Trademark
Act Section 14(3).