The Coffee Rush LLC v. The Rush Coffee, LLC

jv Mailed: May 11, 2026
Cancellation No. 92087117
The Coffee Rush LLC
v.
The Rush Coffee, LLC
Before Johnson, Acting Deputy Chief Administrative Trademark Judge,
Wellington, and Stanley, Administrative Trademark Judges.1
By the Board:
This case comes before the Board for consideration of Petitioner’s motion (filed
December 4, 2025) for reconsideration of the Board’s order granting Respondent’s
motion for summary judgment. The motion is contested.
I. Petitioner’s Motion for Reconsideration
A. Legal Standard
The premise underlying a motion for reconsideration under Trademark Rule
2.127(b), 37 C.F.R. § 2.127(b), is that, based on the evidence of record and the
prevailing authorities, the Board erred in reaching the decision it issued. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 518 (2025)
1 Administrative Trademark Judge Dunn, who was on the panel for the Board’s summary
judgment order, has retired from the Board. Acting Deputy Chief Administrative Trademark
Judge Johnson has been substituted for Judge Dunn.
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

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2
and authorities cited therein. The request may not be used to introduce additional
evidence, nor should it simply reargue the original motion. See Lumber Liquidators
Servs., LLC v. Columbia Ins. Co., No. 91245585, 2022 TTAB LEXIS 1, at *2
(TTAB 2022). Rather, the request normally should be limited to a demonstration that,
based on the evidence properly of record and the applicable law, the Board’s ruling is
in error and requires appropriate changes. See Steiger Tractor Inc. v. Steiner Corp.,
No. 91065603, 1984 TTAB LEXIS 109, at *7 (TTAB 1984).
B. Relevant Background
On May 13, 2025, Respondent filed a motion for summary judgment on
Petitioner’s abandonment and nonuse claims. Respondent’s motion included the
declaration of Clarice Oksayan (“Oksayan Declaration”) with supporting exhibits.
The Oksayan Declaration attested to Respondent’s use of the registered mark “on
digital and printed flyers since 2016, on banner ads and coupons since 2017, and on
banners at special events since 2023” and included exhibits showing such use. 7
TTABVUE 68 (¶¶ 6-8) and 72-87. Petitioner argued that Respondent’s use was
merely sporadic, casual, or transitory but provided no evidence to support its
argument.
On November 4, 2025, the Board granted Respondent’s motion, finding Petitioner
failed to show a genuine dispute of material fact as to whether Respondent never used
its mark in commerce or discontinued use of its mark.
On December 4, 2025, Petitioner filed the instant motion for reconsideration.

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C. Discussion
As an initial matter, the motion for reconsideration was timely filed within one
month of issuance of the Board’s November 4, 2025 order. See Trademark Rule
2.127(b).
On summary judgment, where the nonmoving party will bear the burden of proof
at trial on a dispositive issue, the moving party may discharge its burden by showing
that there is an absence of evidence to support the nonmoving party’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986); Copelands’ Enters. Inc. v. CNV Inc.,
945 F.2d 1563, 1565 (Fed. Cir. 1991). When a moving party’s motion for summary
judgment is supported by evidence sufficient to indicate that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as
a matter of law, the burden shifts to the nonmoving party to demonstrate the
existence of at least one genuine dispute as to a material fact that requires resolution
at trial. See Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., No. 91110043,
2001 TTAB LEXIS 562, at *22 (TTAB 2001). A factual dispute is genuine if, on the
evidence of record, a reasonable fact finder could resolve the matter in favor of the
nonmoving party. See Opryland USA Inc v. Great Am. Music Show Inc., 970 F.2d 847,
850 (Fed. Cir. 1992); Olde Tyme Foods Inc v. Roundy’s Inc., 961 F.2d 200, 202 (Fed.
Cir. 1992).
The Board’s summary judgment ruling noted that the Oksayan Declaration
(1) describes how Respondent used its mark, (2) describes the timeframes in which
Respondent has used the mark, (3) states that Respondent has never stopped using

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the mark as registered and does not intend to stop, and (4) provides exhibits showing
use of the mark in social media promotions, digital and printed banners and flyers,
business cards, t-shirts, and coupons. The Board determined that the combination of
the declaration testimony and supporting exhibits discharged Respondent’s burden
to show an absence of evidence to support Petitioner’s claims that Respondent never
used or discontinued use of its mark. 10 TTABVUE 6-7. Finally, the Board noted that
Petitioner failed to cross-examine Ms. Oksayan, seek discovery under Fed. R. Civ. P.
56(d), or otherwise provide any contradictory evidence to show a genuine dispute of
material fact. Id. at 7 and n.3.
Petitioner’s motion seeks reconsideration “as to the insufficiency of the
Respondent’s proffered exhibits.” 11 TTABVUE 7. Petitioner argues that “[a]
reasonable fact finder may accept that Respondent has asserted some ‘use’ of the
mark in a colloquial or factual sense, but without finding specific facts supporting
bona fide use in commerce[.]” 11 TTABVUE 6. In support of its arguments, Petitioner
points to arguments made in its response to the motion for summary judgment
regarding the sufficiency of the Oksayan Declaration exhibits and asserts that the
Oksayan Declaration lacks “any particular assertion of fact as to any legally-relevant
time or frequency of use outside of that which may be found in the exhibits
themselves.” Id. at 7.
Petitioner fails to show that the Board erred in granting Respondent’s motion for
summary judgment. Petitioner does not point to any legal authorities or evidence the
Board failed to consider. Rather, Petitioner merely asks the Board to revisit its

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arguments opposing the motion for summary judgment. As was noted in the decision,
Petitioner’s arguments regarding the sufficiency of the Oksayan Declaration exhibits
and lack of specific time and frequency of use are “not supported by the record.” 10
TTABVUE 8. Respondent proffered evidence showing its registered mark used in
commerce, and declaration testimony explaining how it uses the mark in commerce,
including in social media advertisements, flyers sent by email, flyers and business
cards handed out in person, coupons given to customers in person, banners displayed
at events, and shirts worn while rendering services. 7 TTABVUE 72-87. Respondent’s
declaration testimony also states when Respondent began using the mark in the
various materials and that Respondent has not ceased use of the registered mark. Id.
at 68. The Board did not err in determining that this evidence discharged
Respondent’s burden to show an absence of evidence to support Petitioner’s nonuse
and abandonment claims.
Petitioner’s arguments that Respondent’s use of the registered mark is “token
use,” “de minimis [sic],” or merely “sporadic, casual, and nominal” are contradicted
by Respondent’s exhibits and declaration testimony. And Petitioner offered no
evidence to support its claims. Petitioner’s arguments and assertions, without
evidentiary support or even the expectation that Petitioner could produce such
evidence at trial, are not sufficient to show a genuine dispute of material fact. See
Hornblower & Weeks Inc., 2001 TTAB LEXIS 562, at *22 (“[A]pplicant has produced
no evidence, or raised any expectation that at trial it could produce evidence” which
could reasonably be expected to lead to a different conclusion.). Thus, the Board did

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not err in determining that Petitioner failed to provide evidence showing a genuine
dispute of material fact.
Based upon a careful review, the Board did not err in granting Respondent’s
motion for summary judgment. Accordingly, Petitioner’s motion for reconsideration
is denied, and the Board’s November 4, 2025 order stands as issued.