Nike, Inc. v. Blue Ribbon Team

This opinion is not a
precedent of the TTAB
Mailed: May 29, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Nike, Inc.
v.
Blue Ribbon Team
_____
Opposition No. 91269520
_____
Michael J. Harris, Michael Kientzle, Kathleen Duffy Lichtenstein, of Arnold &
Porter Kaye Scholer LLP,
for Nike, Inc.
Luke Santangelo, of Santangelo Law Offices, P.C.,
for Blue Ribbon Team.
_____
Before Lykos, English, and Casagrande,
Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
On December 16, 2019, Applicant Blue Ribbon Team filed an intent-to-use
application to register the mark on the Principal Register. The
application identifies “[o]n-line retail store services,” in International Class 35,

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featuring dozens of categories of goods, “sporting equipment and accessories
excluding footwear and clothing” among them.1
Nike, Inc. (“Opposer”) opposes registration. In its Amended Notice of Opposition,2
which is the operative pleading, Opposer alleges that it owns: (1) common law
trademark rights in the mark BLUE RIBBON SPORTS that pre-date Applicant’s
filing date, and (2) a pending application to register BLUE RIBBON SPORTS for,
inter alia, “retail store services and on-line retail store services” featuring several
types of goods, including “sporting goods and equipment.”3 The Amended Notice of
Opposition alleges that Applicant’s prior-filed application was cited against Opposer
as a potential bar to registration under Section 2(d) the Trademark Act, 15 U.S.C.
§ 1052(d).4
Opposer’s Amended Notice of Opposition asserts two claims: (1) priority and
likelihood of confusion under Section 2(d); and (2) that, at the time Applicant filed its
application, it lacked a “bona fide intention … to use [the] trademark in commerce,”
1 Application Serial No. 88728977 was filed under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intent to use the mark in
commerce. An appendix at the end of this opinion lists the entire identification of services.
Applicant describes the mark as follows: “The mark consists of a large ‘B’ with the three
words ‘BLUE’, ‘RIBBON’, and ‘TEAM’ adjacent to the ‘B’.” Color is not claimed as a feature
of the mark.
2 See 15 TTABVUE 28-37. References to the briefs, other filings in the case, and the record
cite the Board’s TTABVUE docket system. The number preceding “TTABVUE” is the docket
number assigned to the cited filing in TTABVUE and any number immediately following
“TTABVUE” identifies the specific page(s) to which we refer.
3 See id. at 29-31.
4 See id at 31.

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as statutorily required by Section 1(b) of the Act.5 Applicant denied the salient
allegations in the Amended Notice.6 The parties filed trial briefs,7 and Opposer filed
a rebuttal brief.8
For the reasons explained below, we sustain the opposition on the ground that, at
the time it filed its application, Applicant lacked a bona fide intent to use its mark in
commerce for the identified services. We do not reach the Section 2(d) claim.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s challenged application.
During its trial period, Opposer submitted the following evidence directed to its
Section 1(b) claim:
• A First Notice of Reliance attaching, inter alia, the current file for Nike’s
pending application to register the mark BLUE RIBBON SPORTS;9
5 See id. at 33-35.
6 See 22 TTABVUE (Answer to Amended Notice). Applicant’s Answer to the Amended
Notice expressly addressed only the newly-added claim and allegations under Section 1(b). It
incorporated by reference “all prior answers” in its Answer to the original Notice of
Opposition (which is at 4 TTABVUE). In addition to denials of allegations, the original
Answer contained several lengthy assertions of affirmative defenses (some of which were
simply elaborations on denials in the Answer), but Applicant pursued none of them at trial,
thus forfeiting them. See, e.g., Keystone Consol. Indus., Inc. v. Franklin Invest. Corp., No.
92066927, 2024 WL 3771168, at *2 (TTAB 2024).
7 See 85 TTABVUE (Opposer’s brief); 86 TTABVUE (Applicant’s brief). Applicant’s brief
attached evidence in the form of certain discovery requests it had served on Opposer and
Opposer’s responses. “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 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, at *2
(TTAB 2020) (citations omitted). Applicant could have submitted this sort of evidence by
notice of reliance, but did not. We therefore do not consider this evidence, but note that, in
any event, it does not have to do with the Section 1(b) claim.
8 See 87 TTABVUE.
9 See 46 TTABVUE (attachment NOR1-1 is the file for the application).

Opposition No. 91269520
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• A Third Notice of Reliance on excerpts from the transcript of the discovery
deposition (with exhibits) of Applicant’s founder Charles Kraus;10 and
• A Fourth Notice of Reliance attaching Applicant’s responses to Opposer’s
written discovery requests.11
During its trial period, Applicant submitted a single Notice of Reliance12 on
excerpts from the transcript of the discovery deposition of its founder Charles Kraus,
Applicant’s supplemental interrogatory responses,13 and the Wikipedia page for
“Virtual Business.”14 Applicant also submitted Mr. Kraus’s declaration.15
II. Opposer is statutorily entitled to pursue this opposition
proceeding
Before we resolve any evidentiary or substantive issues remaining for trial, we
need to make sure the relevant statutes authorizing us to resolve registration-related
disputes entitle these parties to ask us to do so. An opposer under Section 13 of the
Trademark Act, 15 U.S.C. § 1063, must demonstrate: (i) an interest falling within the
zone of interests protected by the opposition statute; and (ii) proximate causation.
10 See 48 TTABVUE. Opposer later alerted the Board that ESTTA uploaded Opposer’s
second and third notices of reliance and exhibits out of order. See 53 TTABVUE. The Board
thereafter amended the TTABVUE notations corresponding to these filing to reflect how they
should have been numbered.
11 See 52 TTABVUE.
12 See 80 TTABVUE.
13 Applicant should not have submitted its own interrogatory answers. Trademark Rule
2.120(k)(5) provides that generally only the inquiring party may submit interrogatory
answers as evidence. Beyond that, Opposer had already submitted them as part of its Fourth
Notice of Reliance. See 52 TTABVUE.
14 Applicant’s submission of the challenged application file was unnecessary because, as we
mentioned above, it’s automatically of record in an opposition proceeding. See 37 C.F.R.
§ 2.122(b)(1).
15 See 81 TTABVUE 7-12.

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Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020) (citing Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 120-37 (2014)); id. at 1305
(applying Lexmark to inter partes TTAB cases). Demonstrating a real interest in
opposing registration of a mark satisfies the zone-of-interests requirement, and
demonstrating a reasonable belief in damage by the registration or continued
registration of a mark establishes proximate causation. Id. at 1305-06.
Opposer alleges that the USPTO cited Applicant’s prior-pending application as a
potential bar, under Section 2(d), to registration of Opposer’s BLUE RIBBON
SPORTS mark. At trial, Opposer submitted the entire file of its application proving
these allegations. Accordingly, Opposer has established a plausible ground for
asserting a Section 2(d) claim against Applicant’s B BLUE RIBBON TEAM composite
mark for the identified services. See, e.g., Nationstar Mortgage LLC v. Ahmad, No.
91177036, 2014 WL 6480655, at *2 (TTAB 2014) (“Applicant’s application for his
NATIONSTAR mark has been cited as a potential bar to the registration of the marks
in opposer’s applications, as shown by the copies of opposer’s applications placed in
the record. This is sufficient to demonstrate that opposer has a real interest in this
proceeding.”) (citations omitted). Once a plaintiff has shown entitlement to a
statutory cause of action on one ground, it has the right to assert any other ground in
an opposition, which in this case includes Opposer’s claim that Applicant lacked a
bona fide intent to use the applied for mark in commerce as of the application filing
date. See, e.g., Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed.

Opposition No. 91269520
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Cir. 2012); Poly-Am., L.P. v. Ill. Tool Works Inc., No. 92056833, 2017 WL 4687981, at
*4 (TTAB 2017), aff’d, ECF No. 119, No. 3:18-cv-00443-C (N.D. Tex. Sept. 26, 2019).
III. Evidentiary Objections
Applicant’s trial brief almost exclusively consists of objections to testimony and
several pieces of evidence that Opposer offered at trial in support of Opposer’s Section
2(d) claim, primarily concerning the breadth of goods Opposer offered under its
asserted mark and when. Applicant objects on the ground that the subject testimony
and trial exhibits offered by Opposer were not previously disclosed by Opposer either
in Opposer’s Rule 26 disclosures or in Opposer’s responses to discovery requests
encompassing them.16 Applicant previously raised these objections to the Board,
requesting exclusion of the identified testimony and evidence, first in “Applicant’s
Objection To Opposer’s Pretrial Disclosure,”17 and then again in “Applicant’s Notice
Of Continued Objections To Opposer’s Evidence” after Opposer introduced the subject
testimony and exhibits during its trial period.18
None of these objections, however, concern Opposer’s claim that Applicant lacked
a bona fide intent to use its mark at the time it filed its application (which concerns
what Applicant did or did not do, not what Opposer has sold).19 Because we resolve
16 See 86 TTABVUE 7-19.
17 See 40 TTABVUE.
18 See 81 TTABVUE.
19 The specific submissions to which Applicant objects are listed at 86 TTABVUE 16 and 19.

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this opposition solely on the basis of the Section 1(b) claim and do not reach the
Section 2(d) claim, we need not address any of these objections.20
IV. Analysis of Opposer’s Section 1(b) Claim
A. Legal Standard
We first consider Opposer’s claim that Applicant lacked a bona fide intent to use
in commerce its applied-for mark for the identified goods and services at the time it
filed its application. Trademark Act Section 1(b) provides that “a person who has a
bona fide intention, under circumstances showing the good faith of such person, to
use a trademark in commerce may request registration of its trademark ....” 15 U.S.C.
§ 1051(b). “Because a bona fide intent to use the mark in commerce is a statutory
requirement of a valid intent-to-use trademark application under Section 1(b), the
lack of such intent is a basis on which” such an application may be challenged. M.Z.
Berger & Co. v. Swatch AG, 787 F.3d 1368, 1375 (Fed. Cir. 2015).
Opposer must demonstrate, by a preponderance of the evidence, that Applicant
lacked a bona fide intent to use the mark in commerce on the goods identified in the
involved application when the application was filed. See, e.g., SawStop, LLC v. Felder
KG, No. 91255905, 2025 WL 2400134, at *16 (TTAB 2025).
Because this sort of claim requires a plaintiff to prove a negative, we permit an
opposer to make out a facie case by showing the absence of any documentary evidence
20 In determining that Opposer was statutorily entitled to oppose, we did rely on attachment
NOR1-1 in Opposer’s First Notice of Reliance (46 TTABVUE). Applicant’s objections to
Opposer’s First Notice, however, concern only other attachments to that submission. To the
extent Applicant’s objections concern Applicant’s responses to Opposer’s discovery requests,
we overrule them.

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regarding Applicant’s intent to use the mark. See, e.g., id. If Opposer satisfies this
initial burden, Applicant is required to bring forth rebuttal evidence showing its bona
fide intent to use its mark in U.S. commerce in connection with the identified goods
or services. See id.
“[W]hether an applicant ha[s] a ‘bona fide intent’ to use the mark in commerce at
the time of the application requires objective evidence of intent.” M.Z. Berger, 787
F.3d at 1375; see also id. at 1379 (“an objective inquiry based on the totality of the
circumstances”). A “mere subjective belief” is insufficient. See id. at 1375. The
evidence must show that the applicant’s intent to use the mark for the identified
goods or services was “firm” and “demonstrable.” See id. at 1375, 1376. If, on the other
hand, the circumstances show only an intent “to reserve a right in a mark,” that is
insufficient. Id. at 1375.
B. Whether Opposer has made out a prima facie case of lack
of bona fide intent
Opposer points to Applicant’s lack of documentary evidence and to the Fed. R. Civ.
P. 30(b)(6) discovery deposition testimony of Charles Kraus21 to demonstrate that
Applicant lacked a bona fide intent to use the mark in commerce when it filed the
application.22 Specifically, Opposer points to Applicant’s failure to produce any
documents or things responsive to requests, under Fed. R. Civ. P. 34, to produce the
following categories of documents:
21 Mr. Kraus testified that he is Applicant’s founder and its sole managing member. 48
TTABVUE 81.
22 See 85 TTABVUE 25-29.

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• “All documents relating to the Applicant’s business plan(s) to use the Mark
for the Identified Services”;23
• “All documents relating to Applicant’s business operating plan(s) for the
Identified Services offered under the Applicant’s Mark”;24
• “All documents relating to all Agreements to supply the Identified Services
offered under Applicant’s Mark”;25
• “All documents relating to all Agreements to supply the goods that are
included in the Identified Services after the introductory phrase ‘Online
retail store services featuring . . .’ offered under Applicant’s Mark”;26
• “All documents evidencing Applicant’s physical locations where Applicant
offers the Identified Services offered under Applicant’s Mark”;27
• “All documents evidencing Applicant’s physical locations where Applicant
intends to offer the Identified Services offered under Applicant’s Mark”;28
• “All documents relating to Applicant’s sales revenue for all goods or services
offered under Applicant’s Mark”;29 and
• “All documents relating to Applicant’s advertising costs associated with
promoting the goods or services offered under Applicant’s Mark.”30
See, e.g., Honda Motor Co. v. Winkelmann, No. 91170552, 2009 WL 962810, at *2
(TTAB 2009) (“The Board has held … that the absence of any documentary evidence
regarding an applicant’s bona fide intention to use a mark in commerce is sufficient
to prove that an applicant lacks such intention as required by Section 1(b) of the
23 52 TTABVUE 69.
24 Id.
25 Id. at 70.
26 Id.
27 Id. 70-71.
28 Id. at 71.
29 Id.
30 Id.

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Trademark Act, unless other facts are presented which adequately explain or
outweigh applicant’s failure to provide such documentary evidence.”) (citation
omitted).
Opposer also points to Applicant’s deposition testimony (through Mr. Kraus, its
Rule 30(b)(6) designee) about what Applicant stated, in its Supplemental Response
to Interrogatory 3, was Mr. Kraus’s plans to “implement[ ] his business in three,
sequenced phases: establishment of the business entity, clearance of the trademarks
at the national level, and institution of use of those trademarks in publicly launching
the business.”31 As to the third phase, Applicant’s interrogatory responses indicated
that this contemplates:
a retail venture that is streamlined from the perspective of
ultimately having third party sourcing and fulfillment
much as the current Amazon and other online retailers
have developed. Such third parties can and likely will
handle product identification, implementing marketing
systems, warehousing, shipping, customer service, and
even sales on the Applicant’s behalf.32
Opposer highlights, however, that Applicant not only has no documents reflecting
that Applicant has ever taken any such steps, but also that Applicant has not, to date,
done anything to accomplish, or even plan, any of these steps:
Q. … [T]he response states that “The Applicant’s founder and sole managing
member has planned a streamlined retail venture ultimately utilizing third
party sourcing and fulfillment.” Do you see that?
A. Yes.
31 See 52 TTABVUE 29.
32 See id.

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Q. I think it’s fair to say that you don’t have any documents that – that describe
or layout that business plan; right? This is part of your nimble approach to
business activities?
A. Yes, I have no documents.33
Opposer notes that Applicant also testified:
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide sourcing or fulfillment services for an online retail store?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide product identification services for an online retail store?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide marketing for an online retail store?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to implement marketing systems for an online retail store?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide warehousing?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide shipping services?
A. No.
Q. Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third party
to provide customer service?
A. No.
33 See 48 TTABVUE 83.

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Q. … Has Blue Ribbon Team, LLC, ever attempted to engage or retain a third
party to help with sales for an online retail store?
A. No 34
Because experience in the relevant field can be relevant to a determination of bona
fide intent, see, e.g., L’Oreal S.A. v. Marcon, No. 91184456, 2012 WL 1267956, at *12
(TTAB 2012), Opposer further preemptively highlights that all of Mr. Kraus’s prior
business experience is unrelated to the online retail services identified in the
application.35 Opposer cites Mr. Kraus’s deposition testimony, where he detailed
working for many years at a pizza parlor, culminating in being its general manager,
owned a Tex-Mex food franchise location and a drive-through barbecue restaurant,
and owns a commercial building that he leases to a retail paint store.36
The closest experience Mr. Kraus has had to the identified services is his having
been involved in purchasing and then re-selling textbooks online for several months.37
Mr. Kraus characterized this experience as “limited.”38 It involved Mr. Kraus
purchasing books from “major book sellers that were online,” who would ship the
books to Mr. Kraus’s home, where he would inspect their condition and then try to
re-sell them online for a profit, shipping them himself to the buyer.39 While he may
34 See id. at 44-45 (objection omitted).
35 See 85 TTABVUE 47.
36 See 48 TTABVUE 28-31.
37 See id. at 36-39.
38 See id. at 36.
39 See id. at 38.

Opposition No. 91269520
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have interacted with potential buyers individually via a third-party software
platform, he did not create an online retail store through which to conduct this
venture.40 Mr. Kraus characterized it as “not as valuable a venture as it was cracked
up to be.”41 This simplistic means of buying and re-selling books is very different from
how Applicant describes the contemplated online retail store services identified in the
application,42 and we find it to have little relevancy as to whether Applicant intended
to use the applied-for mark for the identified services when it filed the application.
Applicant’s failure to produce any documentation concerning the proposed online
retail store venture, its admitted failure to take any steps to set up the business, and
Mr. Kraus’s nearly-total lack of experience in that field establishes a prima facie
case—at minimum—that Applicant lacked a bona fide intent to use its mark in
commerce at the time it filed its application. See, e.g., SawStop, 2025 WL 2400134, at
*16.
C. Whether Applicant has rebutted Opposer’s prima facie
case of lack of bona fide intent
We now turn to whether Applicant has rebutted Opposer’s prima facie case.
As mentioned, the bulk of Applicant’s trial brief is directed to objections to
evidence Opposer submitted in support of the Section 2(d) claim. Applicant’s only
argument directed to the Section 1(b) claim appears to be that it is waiting to take
40 See id. at 39.
41 See id. at 38.
42 See 52 TTABVUE 29 (Applicant’s interrogatory response stating how he envisions his
online retail store services).

Opposition No. 91269520
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any steps toward setting up its business, or even develop a written plan, until after
this proceeding is over.43 It argues that this is “the responsible thing” and “the right
thing” because it does not want to start the planned online retail business and then
become embroiled in a “protracted trademark infringement battle.”44
We see it differently. What the record in this case reveals that Applicant is doing
is to attempt “to reserve a right in the mark” first, see M.Z. Berger, 787 F.3d at 1376,
and then plan its business. As Opposer aptly puts it, this is “the sort of cart-before-
the-horse approach to trademark registration that Section 1(b) forbids.”45 In short,
Applicant has failed to rebut Opposer’s prima facie case that Applicant lacked a bona
fide intent to use its mark in commerce for the identified services at the time it filed
this application.46
Decision: We sustain the opposition to registration of Application Serial No.
88728977 on the ground that Applicant lacked a bona fide intent to use the mark for
the identified services at the time Applicant filed the application. Because
registration must be refused on this basis, we do not need to decide Opposer’s
alternative claim under Section 2(d). See, e.g., CBC Mortgage Agency v. TMRR, LLC,
No. 92076723, 2022 WL 3444028, at *14 n.22 (TTAB 2022); Wonderbread 5 v. Gilles,
43 See 86 TTABVUE 18-19.
44 See id.
45 85 TTABVUE 48.
46 Though Applicant’s brief does not mention it, we note that the record contains Applicant’s
Articles of Incorporation. See Opposer’s First Notice of Reliance, 48 TTABVUE 128-30. This
document, however, does not say anything about the nature of Applicant’s business.

Opposition No. 91269520
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No. 92052150, 2015 WL 4380986, at *14 (TTAB 2015); Spirits Int’l, B.V. v. S.S. Taris
Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, No. 91163779, 2011 WL
2909909, at *4 (TTAB 2011).

Opposition No. 91269520
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APPENDIX
Full identification of services in Application Serial No. 88728977
On-line retail store services featuring skin care preparations, skin care products, skin
care accessories, make-up, make-up preparations, make-up products, make-up
accessories, flashlights, household cleaning items, household cleaning preparations
not including fabric softeners or laundry detergents, hand tools, new and used books
not including comic books, kitchen items and accessories, electric slow cookers,
cookers, coffee cups and mugs, glass, kitchen, and ceramic wares, drinking glasses,
tumblers, kitchen utensils, household utensils, cooking utensils, outdoor recreation
equipment and accessories excluding footwear and clothing, camping equipment and
accessories excluding footwear and clothing, hiking equipments [sic] and accessories
excluding footwear and clothing, survivalist gear excluding footwear and clothing,
survival equipment excluding footwear and clothing, outdoor survival equipment
excluding footwear and clothing, self-sustainability products, toys, collectibles,
collectible trading cards, collectible coins, collectible toy figures, personal electronic
devices, consumer electronics, electronics accessories, electronic devices, wedding
products, wedding books, wedding albums, wedding garters, wedding decorations,
wedding table decorations not including gift baskets, sporting equipment and
accessories excluding footwear and clothing, athletic equipment and accessories
excluding footwear and clothing, golf equipment and accessories excluding footwear
and clothing, home décor, home decorative items, smoking accessories and devices
not including cigars, Christmas items not including gift baskets, Christmas
decorations, Christmas ornaments, Christmas lighting items, Christmas wrapping
products, birthday items not including gift baskets, birthday decorations, birthday
ornaments, birthday lighting items, birthday wrapping products