D-Lize srl v. Genex Enterprises LLC and Saniderm Medical, LLC (joined as party defendant)

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This opinion is not a
precedent of the TTAB

Mailed: September 11, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

D-Lize srl
v.
Saniderm Medical, LLC

Cancellation No. 92081421

Jeffrey M. Goehring, of Nixon & Vanderhye, P.C.,
for D-Lize srl.

Jeffery M. Lillywhite and Robert E. Aycock, of Kimball Anderson,
for Saniderm Medical, LLC.

Before Thurmon, Casagrande, and Bradley,
Administrative Trademark Judges.

Opinion by Casagrande, Administrative Trademark Judge:

Failure to timely argue—and, beyond that, to plead and prove—entitlement to
petition to cancel a registration under 15 U.S.C. § 1064 requires us to deny this
petition.

Saniderm Medical, LLC (Respondent) is currently listed as the owner of

Registration No. 5156779 for the standard-character mark DERMALIZE for goods

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identified as “Adhesive bandages,” in International Class 5.1 D-Lize srl (Petitioner)
has petitioned to cancel the registration, claiming under Trademark Act Section
14(3), 15 U.S.C. § 1064(3), that the registered mark has been abandoned.2 The
Revised First Amended Petition for Cancellation,3 which is the operative pleading,
contains three counts, all for abandonment.4
In its Answer, Respondent admitted that it received an assignment from the
original registrant but otherwise denied the salient allegations concerning
abandonment.5 Both parties submitted evidence during their respective trial periods.
Both filed trial briefs, and Petitioner filed a reply brief.6
The case is now ready for decision.
1 The registration issued on March 7, 2017, on the Principal Register (Section 8 Declaration
of Continued Use accepted). It lists March 1, 2016, as the date of first use anywhere and April
15, 2016, as the date of first use in commerce. The registration issued to Genex Enterprises
LLC, who was named as the sole respondent when the Petition to Cancel was filed on January
23, 2023. See 1 TTABVUE. On May 1, 2023, the USPTO’s Assignments Branch recorded two
assignments of the registration from Genex Enterprises LLC to Saniderm Medical, LLC
(Respondent). In its order dated October 20, 2023, the Board added Respondent as a party
defendant. See 12 TTABVUE 1 n.1. Thereafter, only Respondent appeared in defense in this
matter. Accordingly, pursuant to Fed. R. Civ. P. 21, Genex Enterprises LLC, is hereby
dropped as a party/respondent in this case, as the caption of this Final Decision reflects.
References to “TTABVUE” refer to the Board’s electronic docket system. Citations to the
record in this case will cite to TTABVUE. In the citations, the number preceding “TTABVUE”
represents the docket number assigned to the cited filing in TTABVUE, and any number
immediately following “TTABVUE” identifies any specifically-cited page(s).
2 See 1 TTABVUE.
3 See 18 TTABVUE.
4 “Claim I” alleges that the mark has not been used for at least three consecutive years. 18
TTABVUE 5-6. Claims II and III allege abandonment based on allegations that the two
assignments, see supra n.1, are invalid. See 18 TTABVUE 6-7.
5 See 19 TTABVUE.
6 See 35 TTABVUE (Petitioner’s Trial Brief); 42 TTABVUE (Respondent’s Trial Brief); 43
TTABVUE (Petitioner’s Reply Brief).

Cancellation No. 92081421
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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 entire file of Respondent’s registration. In addition,
Petitioner submitted the following during its trial period:
• A publicly-filed First Notice of Reliance attaching, inter alia, copies of
written discovery served on Respondent and Respondent’s responses to it,
and copies of a few webpages from a search conducted in Amazon.com, a
page from what appears to be an Instagram account for DERMALIZE, and
a webpage from www.dermalize.com;7 and
• A confidentially-filed Notice of Reliance attaching, inter alia, documents
produced by Respondent during discovery.8
During its trial period, Respondent submitted:
• A confidentially-filed Notice of Reliance attaching copies of a few of its
business documents;9 and
• A publicly-filed Notice of Reliance attaching:
o A Declaration of Respondent’s CEO, concerning the assignment and
use of the DERMALIZE trademark;
o A Declaration of Samuel Saunders, the attorney for Genex
Enterprises, LLC from 2015-2023;
o Copies of webpages from Archive.org’s Wayback Machine purporting
to reflect Petitioner’s use of DERMALIZE over the years on the
website www.dermalizepro.com;
o Copies of documents purporting to reflect Respondent’s use of
DERMALIZE, a 2017 cease-and-desist letter from Mr. Saunders on
behalf of Genex Enterprises, LLC, to Petitioner concerning
Petitioner’s use of D-LIZE PRO in the United States, and some
7 See 30-31 TTABVUE.
8 See 32 TTABVUE.
9 See 33 TTABVUE.

Cancellation No. 92081421
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documents concerning the assignment and recordation of the
assignment at the USPTO.10
II. Entitlement to invoke the cancellation statute
“As a threshold matter, we must address whether [the petitioner] has a statutory
cause of action to challenge [the respondent’s] trademark registration[ ] … .” Meenaxi
Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1071-72 (Fed. Cir. 2022) (citation
omitted).
A. General standards
Section 14 of the Trademark Act, 15 U.S.C. § 1064, authorizes petitions for
cancellation to be filed “by any person who believes that he is or will be damaged …
by the registration of a mark.” Such a person must have (1) an interest within the
zone of interests protected by the cancellation statute, i.e., a “real interest” or “direct
and personal stake in the outcome of the proceeding”; and (2) a reasonable belief in
damage proximately caused by registration of the mark in violation of the statute.
Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1364-65, 1367 (Fed. Cir.
2025) (citing, inter alia, Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 129-37 (2014)) (further citations omitted).
These two requirements are “element[s] of the cause of action under the statute”
and, “like any other element of a cause of action, [they] must be adequately alleged
at the pleading stage in order for the case to proceed.” Lexmark, 572 U.S. at 134 n.6
(citations omitted); accord Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed.
10 See 34 TTABVUE.

Cancellation No. 92081421
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Cir. 2020) (reviewing “whether SFM pleaded sufficient facts to establish entitlement
to challenge Corcamore’s registered trademark under § 1064”); Australian
Therapeutic Supplies Pty. v. Naked TM, LLC, 965 F.3d 1370, 1378 (Fed. Cir. 2020)
(“Australian was required to plead and prove ‘a real interest in the proceedings...
[and] a reasonable basis for its belief of damage.’”) (citation omitted).
Not only must entitlement be adequately pleaded, like other elements of a claim,
it must be proved at trial. See, e.g., Australian Therapeutic, 965 F.3d at 1378; Ritchie
v. Simpson, 170 F.3d 1092, 1099 (Fed. Cir.1999) (“Of course, a petitioner’s allegations
alone do not conclusively establish standing. If challenged, the facts alleged which
establish standing are part of the petitioner’s case, and … must be affirmatively
proved.”) (citation omitted); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024,
1028 (CCPA 1982) (“The facts regarding [statutory entitlement], we hold, are part of
a petitioner’s case and must be affirmatively proved.”). “Entitlement to a statutory
cause of action is an element of the plaintiff’s case in every inter partes proceeding.”
El Roblar Inv. Prop. LLC v. Roe, No. 91272200, 2025 WL 2718983, at *18 (TTAB
2025) (citation omitted).
B. Petitioner forfeited any arguments that it adequately pleaded
and proved entitlement to seek cancellation
We note first that Petitioner’s Trial Brief does not mention statutory entitlement
(or “standing,” its former name), let alone explain how Petitioner adequately pleaded
and proved it. For this reason, we consider the issue forfeited. See, e.g., WeaponX
Performance Prods. Ltd. v. Weapon X Motorsports, Inc., No. 91221553, 2018 WL
1326374, at *2 (TTAB 2018) (holding claim not asserted in brief waived); Double Coin

Cancellation No. 92081421
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Holdings Ltd. v. Tru Dev., No. 92063808, 2019 WL 4877349, at *1 (TTAB 2019)
(holding defenses not asserted in defendant’s trial brief waived); Threshold.TV, Inc.
v. Metronome Enters., Inc., No. 91152662, 2010 WL 3164750, at *3 (TTAB 2010)
(holding evidentiary objections in not raised in opposer’s main brief waived).11
When Respondent pointed out in its answering brief that Petitioner has made no
showing of any real interest or reasonable belief in damage from Respondent’s U.S.
registration,12 Petitioner’s reply brief said only: “As a competitor in adhesive
bandages used in tattoo aftercare, marketing identical goods under a substantially
identical mark, Petitioner plainly has entitlement to seek cancellation of an
abandoned registration ….”13
Putting aside for the moment that Petitioner cited neither any allegations in its
pleadings nor any evidence in the record supporting that it believes it will suffer some
cognizable damage in the United States, this statement comes too late. In the context
of an inter partes proceeding before the USPTO’s Patent Trial and Appeal Board, the
Federal Circuit has explained that “the Board must base its decision on arguments
that were advanced by a party, and to which the opposing party was given a chance
to respond.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1381 (Fed. Cir. 2016).
The TTAB’s precedents are to similar effect, holding that the reason a plaintiff can’t
11 Though these decisions speak in terms of “waiver,” the Federal Circuit later explained
that this principle is more appropriately called “forfeiture.” See In re Google Tech. Holdings
LLC, 980 F.3d 858, 862 (Fed. Cir. 2020), discussed in In re Princeton Equity Grp. LLC, No.
97397212, 2025 WL 1638891, at *2 n.15 (TTAB 2025).
12 See 42 TTABVUE 15-16.
13 43 TTABVUE 3.

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raise an issue for the first time in a reply brief is because the defendant cannot
respond. See, e.g., Grote Indus., Inc. v. Truck-Lite Co., No. 91196923, 2018 WL
155730, at *2 (TTAB 2018), judgment rev’d and vacated on other grounds by consent
decree, No. 1:18-cv-00599 (W.D.N.Y. June 8, 2022); Michael S. Sachs, Inc. v. Cordon
Art B.V., No. 91095655, 2000 WL 1052061, at *2 n.6 (TTAB 2000); CCI Corp. v.
Continental Commc’ns, Inc., 1974 WL 20108, at *1 n.1 (TTAB 1974). We hold that
Petitioner, by failing to address the necessary issue of statutory entitlement in its
Trial Brief, has forfeited any assertion that it has satisfied this requirement.
C. Beyond forfeiture, Petitioner has neither properly pleaded nor
proved entitlement to seek cancellation
Even were we to ignore the forfeiture and look at Petitioner’s Revised First
Amended Petition for Cancellation and the proof in the case, we fail to see how
statutory entitlement is adequately alleged or proved. Starting with Petitioner’s
operative pleading, we find neither mention of the requirement of statutory
entitlement to invoke a cancellation nor any allegations that would satisfy this
required element, if proved. The only allegations in the pleading that pertain to
Petitioner are these:

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14
These paragraphs allege that Petitioner is an Italian company, uses and has
registered DERMALIZE outside the United States in connection with “protective
tattoo film,”15 maintains a website at www.dermalizepro.com, and invests time,
money, and effort to promote the mark. But it does not allege that it has used or
promoted the mark in the United States, nor does it allege any lost sales or
reputational injury in the United States due to Respondent’s registration of
DERMALIZE. Unless a petitioner has some right or reputational interest in the mark
at issue (or something else that might constitute a real interest in the case and a
reasonable belief in damage from the registration), simply marketing a competing
14 18 TTABVUE 2.
15 We assume for purposes of argument that these protective films are a kind of adhesive
bandage.

Cancellation No. 92081421
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product in the United States does not implicate any direct or concrete interest in
any particular trademark used in connection with that product.16 Without any other
assertion of some form of damage it believes it suffers or will suffer in the United
States as a direct result of this U.S. trademark registration, Petitioner has failed to
adequately allege statutory entitlement to petition to cancel the registration.
The Federal Circuit’s decision in Meenaxi Enterprise is instructive. In that case,
the Court held that Coca-Cola lacked entitlement to pursue cancellation, under
Section 14(3) of the Act, 15 U.S.C. § 1064(3), of Meenaxi’s THUMS UP and LIMCA
registrations for soft drinks due to misrepresentation of source. 38 F.4th at 1069.
Coca-Cola did not allege any lost sales in the United States, but argued that it
nevertheless was statutorily entitled to pursue cancellation based on several facts:
• Coca-Cola competes in the soft drink market in United States;
• Coca-Cola used the challenged marks in other countries, but not in the
United States, id. at 1076;
• Coca-Cola “present[ed] statements regarding future plans to market
Thums Up and Limca beverages more broadly in the United States,” but
the Court noted that “nebulous future plans for U.S. sales cannot be the
basis for a Lanham Act claim.” Id. (citations omitted);
• Coca-Cola alleged damage to its reputation here, but “failed to explain how
its supposed reputational injury adversely affected its commercial interests
other than to speculate that a consumer dissatisfied with Meenaxi’s
products might blame Coca-Cola,” id. at 1077.
16 It would be a different story, perhaps, if the claim was genericness or merely
descriptiveness and the petitioner alleged it that it used the terms descriptively or generically
for competing goods, see, e.g., Golomb v. Wadsworth, 592 F.2d 1184, 1185-86 (CCPA 1979) or
if the claim was that a product design mark was functional the petitioner also made product,
see, e.g., Kistner Concrete Prods. Inc. v. Contech Arch Techs., Inc., No. 92048733, 2011 WL
481339 (TTAB 2011). But those scenarios are different from this case.

Cancellation No. 92081421
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Based on these facts, the Court found Coca-Cola was not entitled to pursue its
cancellation proceeding.
This case presents some parallels with Meenaxi. Petitioner and Respondent both
sell bandages. Petitioner has used the challenged mark in other countries but does
not sell its bandages in the United States under that mark.17 Petitioner does not
allege or present proof of lost sales in the United States due to the registered mark.
But while Coca-Cola alleged damage to its reputation here (albeit insufficiently),
Petitioner does not even do that. Nor does Petitioner even mention future plans in
the United States involving the challenged mark, as Coca-Cola did (albeit
insufficiently). So, ultimately, Petitioner here presents an even weaker case for
statutory entitlement than Coca-Cola did in Meenaxi.18 See also PepsiCo, Inc. v.
Arriera Foods LLC, No. 91269057, 2022 WL 15328405, at *5-6 (TTAB 2022) (holding
that, where a notice of opposition made allegations similar to those in Meenaxi, the
opposer had failed to state a claim).
Accordingly, we hold that Petitioner has neither sufficiently alleged nor proved
entitlement to pursue this statutory cancellation proceeding.
17 As Respondent points out, the evidence shows that Petitioner’s sales of its competing
product in the United States are under a different mark. See 42 TTABVUE 4-6,
18 Neither Petitioner’s Trial Brief nor its Reply even hints at any evidence that would
support Petitioner’s statutory entitlement, and we see none. We are not obligated to make
Petitioner’s case for it. See T.A.B. Sys. v. Pactel Teletrac, 77 F.3d 1372, 1378 (Fed. Cir. 1996)
(“Whether adequate proof was in fact available but simply was not gathered and proffered by
PacTel is not a subject on which we can, should or do speculate. Rather, we must take the
record as PacTel made it.”); see also DC Comics v. Cellular Nerd LLC, No. 91246950, 2022
WL 17832492, at *18 n.81 (TTAB 2022) (noting that the Board is not obligated “to scour the
record in search of facts or evidence to support a party’s position”).

Cancellation No. 92081421

Decision: We deny the Petition for Cancellation.

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Concurring statement of Bradley, Administrative Trademark Judge:
I concur that Petitioner has neither adequately pleaded nor proved statutory
entitlement and would not address whether the failure to address statutory
entitlement in its trial brief constitutes forfeiture of the issue.