Mint Construction, LLC v. Travis Hengst

Bukrinsky Mailed: November 14, 2025
Cancellation No. 92085302
Mint Construction, LLC
v.
Travis Hengst
Before Greenbaum, Thurmon, and Casagrande,
Administrative Trademark Judges.
By the Board:
This proceeding comes before us on Petitioner’s motion, filed June 18, 2025, for
summary judgment on its likelihood of confusion claim. The motion is fully briefed.
I. Background
Respondent owns Registration No. 7120858, on the Principal Register, for the
standard character mark MINT for “building construction services” in International
Class 37.1
Petitioner filed a petition to cancel the registration pursuant to Trademark Act
Section 2(d), 15 U.S.C. § 1052(d). 1 TTABVUE. Petitioner alleges prior common law
rights in the mark MINT CONSTRUCTION, which it alleges to have used since
1 The underlying use-based application was filed June 21, 2022 under Trademark Act Section
1(a), 15 U.S.C. § 1051(a), and alleged first use in commerce at least as early as January 1,
2021. The registration issued July 25, 2023.
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
September 2016 in connection with construction services. Id. at 4. Petitioner also
alleges that it filed Application Serial No. 974938542 for the mark MINT
CONSTRUCTION (“CONSTRUCTION” disclaimed) for various construction services
in International Class 37; and that its application was refused registration under
Trademark Act Section 2(d) due to a likelihood of confusion with Respondent’s
registration. Id. at 4-5.
Respondent filed an answer denying the salient allegations of the petition for
cancellation, and alleging, inter alia, an affirmative defense of laches. 4 TTABVUE
5.3
One day before its pretrial disclosures were due, Petitioner filed its motion for
summary judgment. 9 TTABVUE.
2 Filed July 7, 2022 pursuant to Section 1(a), 15 U.S.C. § 1051(a).
3 Respondent’s other two affirmative defenses are insufficiently pleaded. The first affirmative
defense alleges failure to state a claim, which is not a true affirmative defense. See, e.g.,
Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *6-7 n.5 (TTAB
2021). Moreover, we find that Petitioner sufficiently pleaded its entitlement to a statutory
cause of action and Section 2(d) claim.
Respondent’s third affirmative defense is unclean hands based on allegations that
Petitioner is overreaching in enforcing its trademark rights by bringing this proceeding
before the Board. 4 TTABVUE 5. These allegations do not set forth the type of misconduct
that constitutes unclean hands, or any other cognizable defense. See DoorDash, Inc. v.
Greenerside Holdings, LLC, No. 91285160, 2024 TTAB LEXIS 188, at *6 (TTAB 2024); Time
Warner Entm’t Co. v. Jones, No. 91112409, 2002 TTAB LEXIS 462, at *2 n.4 (TTAB 2002)).
See also J. THOMAS MCCARTHY, 6 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION
§ 31:51 (5th ed. Feb. 2025 update) (“The allegedly unfair or improper filing of a trademark
infringement lawsuit cannot itself constitute a basis for an unclean hands defense to that
lawsuit.”).
Accordingly, the first and third affirmative defenses are stricken. See Fed. R. Civ. P. 12(f)
(empowering tribunal to strike an “insufficient defense … on its own”).

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3
II. Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute with respect to any material fact, thus allowing the case to be
resolved as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for summary
judgment has the burden of demonstrating the absence of any genuine dispute as to
a material fact, and that it is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc. v. Pannill Knitting
Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987). A factual dispute is genuine if, on the
evidence of record, a reasonable fact finder could resolve the matter in favor of the
non-moving 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 evidence of record must be viewed in the light most favorable to the
non-moving party, and all justifiable inferences must be drawn from the undisputed
facts in favor of the non-moving party. See Lloyd’s Food Prods. Inc. v. Eli’s Inc., 987
F.2d 766, 767 (Fed. Cir. 1993); Opryland USA, 970 F.2d at 850. We may not resolve
disputes as to material facts and, based thereon, decide the merits of the proceeding.
Rather, we may only ascertain whether any material fact is genuinely disputed. See
Lloyd’s Food Prods., 987 F.2d at 767; Olde Tyme Foods, 961 F.2d at 202; Meyers v.
Brooks Shoe Inc., 912 F.2d 1459, 1461 (Fed. Cir. 1990).
III. Analysis
For Petitioner to prevail on its likelihood of confusion claim, it must demonstrate
that there is no genuine dispute of material fact that it owns common law rights in a

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4
distinctive mark that was “previously used in the United States,” and that
contemporaneous use of the parties’ respective marks in connection with their
respective services would be likely to cause confusion or mistake or to deceive
consumers regarding the source of the services. See 15 U.S.C. § 1052(d); Giersch v.
Scripps Networks Inc., No. 92045576, 2009 TTAB LEXIS 72, at *9 (TTAB 2009) (“In
order for a plaintiff to prevail on a claim of likelihood of confusion based on its
ownership of common-law rights in a mark, the mark must be distinctive, inherently
or otherwise, and plaintiff must show priority of use.”) (citing Otto Roth & Co. v.
Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981)); Hornblower & Weeks, Inc.
v. Hornblower & Weeks, Inc., No. 91110043, 2001 TTAB LEXIS 562, at *7 (TTAB
2001). Whether there is a likelihood of confusion between two marks presents an
issue of law based on underlying facts, namely, findings under the factors set forth in
In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”).
In addition, Petitioner must establish that there is no genuine dispute of material
fact that it is entitled to a statutory cause of action. See Australian Therapeutic
Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1377 (Fed. Cir. 2020) (citing
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014)).
A. Entitlement to a Statutory Cause of Action
Petitioner has submitted a printout from the USPTO’s Trademark Status and
Document Retrieval (TSDR) database of its application for the mark MINT
CONSTRUCTION, including a Nonfinal Office Action refusing registration due to a
likelihood of confusion with Respondent’s involved registration. 9 TTABVUE 152-56.

Cancellation No. 92085302
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This is sufficient to demonstrate the absence of a genuine dispute of material fact
that Petitioner has entitlement to a statutory cause of action.4 See Fiat Grp. Autos.
S.p.A. v. ISM, Inc., No. 91190607, 2010 TTAB LEXIS 70, at *4-5 (TTAB 2010); Life
Zone Inc. v. Middleman Grp., Inc., No. 91160999, 2008 TTAB LEXIS 37, at *17-18
(TTAB 2008).
In addition, Petitioner’s well-pleaded claim of likelihood of confusion, coupled with
evidence of Petitioner’s use of its own mark as discussed below, demonstrates
Petitioner’s entitlement to a statutory cause of action. See Corcamore, LLC v. SFM,
LLC, 978 F.3d 1298, 1306-07 (Fed. Cir. 2020); Lipton Indus. v. Ralston Purina Co.,
670 F.2d 1024, 1029 (Fed. Cir. 1982) (entitlement to a statutory cause of interest
shown by evidence of the plaintiff’s “real commercial interest in its own marks, and a
reasonable basis for its belief that it would be damaged.”).
B. Section 2(d)
1. Priority in a Distinctive Mark
In support of the distinctiveness of its mark, Petitioner submits dictionary
definitions of MINT, which include, inter alia, a type of aromatic plant, “a place where
coins, medals, or tokens are made,” and “to cause to attain an indicated status.” See
9 TTABVUE 161-66.
While Respondent asserts that he chose the term MINT as his own mark “to evoke
‘mint condition,’ aligning with the quality of completed exterior work,” Respondent
4 Respondent does not dispute that Petitioner has demonstrated entitlement to a statutory
cause of action. See 11 TTABVUE.

Cancellation No. 92085302
6
stops short of arguing that MINT or MINT CONSTRUCTION is descriptive of either
party’s services, let alone citing any evidence supporting such an argument. 11
TTABVUE 7. See Wet Seal, Inc. v. FD Mgmt., Inc., No. 91157022, 2007 TTAB LEXIS
21, at *14 (TTAB 2007) (finding pleaded mark distinctive where applicant neither
argued nor submitted evidence otherwise). Indeed, Respondent’s own mark MINT
was registered for construction services without a claim of acquired distinctiveness.
Accordingly, we find no genuine dispute of material fact that MINT
CONSTRUCTION is inherently distinctive for Petitioner’s construction services.5
In support of its priority, Petitioner submits the declaration of its manager,
Morgan Sharp. 9 TTABVUE 19. Mr. Sharp testifies that “[s]ince its formation in 2016,
[Petitioner] has primarily operated as a general contractor and construction manager
for commercial construction, specializing in construction of medical and professional
office, tenant improvement, senior living, multi-family residential, industrial, and
hospitality projects.” Id. at 20. “Beginning in early September 2016, Mint
Construction began providing construction services under the MINT
CONSTRUCTION mark, including preconstruction planning and construction
consultation services.” Id.; see also id. at 38-63 (Budget Proposal for a construction
project, bearing the mark MINT CONSTRUCTION, dated September 16, 2016).
Petitioner broke ground on its first construction project, an office building, in April
2017, and completed the project in October 2017. Id. at 21. The mark MINT
5 That CONSTRUCTION is not inherently distinctive for construction services does not mean
the mark MINT CONSTRUCTION as a whole is not inherently distinctive. See generally
Trademark Act Section 6, 15 U.S.C. § 1056 (allowing for disclaimers of unregistrable matter).

Cancellation No. 92085302
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CONSTRUCTION was displayed at the groundbreaking ceremony and worksite. See
id. at 66-69 (Petitioner’s social media posts with photographs).
Mr. Sharp provides a chart showing the number of projects started and completed
each year from 2017 to 2025, and testifies that the MINT CONSTRUCTION mark
was displayed in association with each project. Id. at 22-26; see also id. at 89-127
(social media posts).
Also attached to Mr. Sharp’s declaration are archival captures of Petitioner’s
website, buildwithmint.com, dated 2018, and captures of the website as of the date of
the filing of the motion for summary judgment. Id. at 75-87. Mr. Sharp testifies that
the screen captures show how the website was displayed at the relevant times. Id. at
26-27.
Finally, Petitioner submits Respondent’s interrogatory responses wherein
Respondent states that he has used his mark in commerce since January 1, 2021.
Id.at 141 (Resp. to Interrog. Nos. 8-9).
The foregoing evidence is sufficient to carry Petitioner’s burden of proof on
summary judgment that no genuine dispute of material fact exists that it used the
mark MINT CONSTRUCTION before Respondent applied for his mark, and before
the earliest date of first use upon which Respondent may rely. Contrary to
Respondent’s argument, Petitioner need not prove that its use was “continuous” in
order to demonstrate the absence of a genuine dispute of material fact as to its
priority. “The governing statute does not speak of ‘continuous use,’ but rather of
whether the mark or trade name has been ‘previously used in the United States by

Cancellation No. 92085302
8
another and not abandoned.’” W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122,
1129 (Fed. Cir. 1994) (citing 15 U.S.C. § 1052(d)). Nor must Petitioner prove any
specific level of sales. See Christian Faith Fellowship Church v. Adidas AG, 841 F.3d
986, 994 (Fed. Cir. 2016) (no de minimis test for use in commerce).
We find Mr. Sharp’s declaration to be clear, consistent, and sufficiently detailed
to demonstrate the absence of a genuine dispute of material fact that it used the mark
MINT CONSTRUCTION for commercial building construction services prior to
Respondent’s first claimed date of January 1, 2021. See, e.g., Hornblower & Weeks,
2001 TTAB LEXIS 562, at *10 (opposer’s declaration, while not corroborated by
documentary evidence, was internally consistent, not characterized by uncertainty,
and was unchallenged by applicant); 4U Co. of Am., Inc. v. Naas Foods, Inc., No.
92009693, 1972 TTAB LEXIS 171, at *7 (TTAB 1972) (that statements in affidavit
were not supported by invoice does not undermine the testimony when
uncontradicted; “Suspicion alone is insufficient to invalidate the operative facts set
out in a supporting affidavit.”).
Moreover, Mr. Sharp’s declaration is corroborated by documentary evidence,
including a budget document, photographs, and printouts of social media posts and
websites; and Mr. Sharp has testified to the truth of the matter contained in these
documents. See Icon Health & Fitness, Inc. v. Eifit LLC, No. 91264393, 2022 TTAB
LEXIS 119, at *17 (TTAB 2022) (“[w]hen Internet documents are submitted by
witness testimony, the witness may identify and authenticate such documents.”).

Cancellation No. 92085302
9
The foregoing evidence is sufficient to carry Petitioner’s burden of demonstrating
the absence of a genuine dispute of material of fact that it used the mark MINT
CONSTRUCTION for commercial building construction services before Respondent
commenced use of his mark for his services.
Once the moving party has carried its initial burden, the nonmoving party may
not rest on mere allegations, but must designate specific portions of the record or
produce additional evidence showing the existence of a genuine dispute of material
fact for trial. Monster Energy Co. v. Tom & Martha LLC, No. 91250710, 2021 TTAB
LEXIS 458, at *7 (TTAB 2021) (citing Fed. R. Civ. P. 56(c)(1)). Respondent has not
presented any evidence contradicting Mr. Sharp’s declaration and exhibits, and his
assertion that Petitioner’s evidence is internally inconsistent is not well-taken.
Specifically, Respondent argues that Mr. Sharp’s declaration is inconsistent with
Petitioner’s website in counting the projects Petitioner completed. See 11 TTABVUE
3-4. Mr. Sharp explains in an amended declaration, however, that the discrepancy is
due to whether separate buildings and building permits that are part of the same
project are counted separately. See 12 TTABVUE 16 n.1. Whether Petitioner has
completed 206 projects or 253 projects is not relevant to our determination of whether
Petitioner demonstrated the absence of a genuine dispute of material fact as to its
priority.
Accordingly, we find no genuine dispute of material fact that Petitioner has
priority of use for commercial building construction services.

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2. Likelihood of Confusion
In determining whether Petitioner has demonstrated the absence of a genuine
dispute of material fact that there is a likelihood of confusion between the parties’
marks, we have considered each DuPont factor that is relevant and for which there
is evidence of record and argument. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450
F.3d 1378, 1382 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., No.
91194974, 2015 TTAB LEXIS 67, at *26-27 (TTAB 2015). We treat as neutral any
DuPont factors for which there is no record evidence or argument.
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017); Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1164 (Fed. Cir. 2002) (cleaned up) (“The likelihood of
confusion analysis considers all DuPont factors for which there is record evidence but
‘may focus on dispositive factors, such as similarity of the marks and relatedness of
the goods.”).
We find no genuine dispute of material fact that the parties’ marks are nearly
identical. In MINT CONSTRUCTION, the first term MINT is dominant in creating
the commercial impression of the mark, especially in light of the generic or merely
descriptive nature of the following term, CONSTRUCTION. See, e.g., Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (“Given the
descriptive nature of the disclaimed word ‘Technologies,’ the Board correctly found
that the word ‘Packard’ is the dominant and distinguishing element of PACKARD

Cancellation No. 92085302
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TECHNOLOGIES.”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 876 (Fed. Cir. 1992) (Board correctly found that “Century” is the “dominant
element of CENTURY LIFE OF AMERICA due to applicant’s disclaimer of the rest
of its mark” and because “upon encountering each mark, consumers must first notice
this identical lead word”). And MINT is the entirety of Respondent’s mark. If the
dominant portion of both marks is essentially the same, then the marks may be
confusingly similar notwithstanding peripheral differences. See, e.g., In re Detroit
Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (affirming TTAB’s finding that the
marks DETROIT ATHLETIC CO. and DETROIT ATHLETIC CLUB are nearly
identical in terms of sound, appearance and commercial impression, and noting that,
while “the words ‘Co.’ and ‘Club’ technically differentiate the marks, those words do
little to alleviate the confusion that is likely to ensue.”); In re Chatam Int’l Inc., 380
F.3d 1340, 1343 (Fed. Cir. 2004) (“Viewed in their entireties with non-dominant
features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and
JOSE GASPAR GOLD for tequila] become nearly identical.”).
We also find no genuine dispute of material fact that the “building construction
services” identified in Respondent’s registration encompass commercial building
construction services, in connection with which Petitioner has demonstrated no
genuine dispute of material fact as to its priority. See 9 TTABVUE 21-22.
Respondent’s argument (at 11 TTABVUE 6-7) that it actually provides “specialized
building construction services,” that differ from Petitioner’s “large commercial and
industrial construction services,” is not well-taken. See Stone Lion Cap. Partners v.

Cancellation No. 92085302
12
Lion Capital LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014) (“Parties that choose to recite
services in their trademark application that exceed their actual services will be held
to the broader scope of the application.”); Sw. Mgmt., Inc. v. Ocinomled, Ltd., No.
94002242, 2015 TTAB LEXIS 176, at *60-61 (TTAB 2015) (“Where an applicant
identifies its services broadly, we must presume that the services encompass all
services of the type identified.”), aff’d mem., 652 F. App’x 971 (Fed. Cir. 2016).
With respect to trade channels, Petitioner’s evidence demonstrates that its
construction services are offered to the commercial building industry. See supra, pp.
8-9. Petitioner submitted Respondent’s interrogatory response stating that
Respondent has “offered or rendered services relating to anything on the exterior of
a building, including but not limited to roofing, solar, gutters, etc., as well as interior
improvements for both residential and commercial buildings.” 9 TTABVUE 140-41
(Resp. to Interrog. No. 7). Thus, both parties offer construction services for
commercial buildings.
Moreover, Respondent’s registration does not contain any limitation with respect
to consumers or channels of trade, and accordingly we must presume that the services
move in all normal channels of trade for “building construction services,” including
Petitioner’s channels. See Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896,
2017 TTAB LEXIS 452, at *12 (TTAB 2017) (“[B]ecause there are no restrictions or
limitations in Applicant’s description of goods, we presume that Applicant’s beer will
move in all channels of trade normal for such goods and be purchased by all potential

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13
customers, including Opposer’s trade channels and Opposer’s customers and
potential customers.”).
Accordingly, we find no genuine dispute of material fact that the parties’ services
are offered in at least some overlapping trade channels, namely with respect to the
construction of commercial buildings; and thus to at least some of the same classes of
customers. In view of these findings, we find no genuine dispute of material fact that
Respondent’s use of his involved mark in connection with the services identified in
the registration is likely to cause confusion with Petitioner’s use of its mark.
C. Laches
Lastly, we address Respondent’s argument that his pleaded laches defense
precludes entry of summary judgment. By statute, the defense of laches is available
in trademark proceedings. See Trademark Act Section 19, 15 U.S.C. § 1069 (“In all
inter partes proceedings equitable principles of laches, estoppel, and acquiescence,
where applicable may be considered and applied.”). Respondent, as the party raising
the affirmative defense of laches, bears the burden of proof. See Fed. R. Civ. P. 8(c)
(characterizing laches as an affirmative defense); Cornetta v. U.S., 851 F.2d 1372,
1380 (Fed. Cir. 1988).
The elements of a laches defense are: (1) unreasonable delay in assertion of one's
rights against another; and (2) material prejudice to the latter attributable to the
delay. See Bridgestone/Firestone Rsch. Inc. v. Auto. Club de l’Ouest de la France, 245
F.3d 1359, 1361 (Fed. Cir. 2001) (“Mere delay in asserting a trademark-related right
does not necessarily result in changed conditions sufficient to support the defense of

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14
laches. There must also have been some detriment due to the delay.”). “In
determining whether a party has too long ‘slept on its rights’ it is necessary to show
that the party knew or should have known that it had a right of action, yet did not
act to assert or protect its rights.” Id. at 1361-62.
The defendant asserting laches must show the plaintiff had actual knowledge or
constructive notice of a registrant’s trademark use to establish a date of notice from
which delay can be measured. Loma Linda Food Co. v. Thomson & Taylor Spice Co.,
279 F.2d 522, 525 (CCPA 1960); Jansen Enters. Inc. v. Rind, No. 92042871, 2007
TTAB LEXIS 47, at *32 (TTAB 2007). Where the plaintiff had actual knowledge of
the defendant and its mark prior to publication for opposition, the date of publication
is the operative date for laches. Nat’l Cable Tel. Ass’n, Inc. v. Am. Cinema Eds. Inc.,
937 F.2d 1572, 1582 (Fed. Cir. 1991). “[I]n the absence of actual knowledge prior to
the close of the opposition period, the date of registration is the operative date for
laches,” as it provides constructive notice to plaintiff of the registrant’s claim of
ownership. Teledyne Techs., Inc. v. Western Skyways, Inc., No. 92041265, 2006 TTAB
LEXIS 55, at *23 n.10 (TTAB 2006), aff’d, 208 F. App’x 886 (Fed. Cir. Dec. 6, 2006),
and authorities cited therein; see also Jansen Enters., 2007 TTAB LEXIS 47, at *33
(publication in Official Gazette does not provide constructive notice). Thus, laches
begins to run no earlier than the date the involved mark was published for opposition
(actual knowledge), and no later than the issue date of the registration (constructive
notice).

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15
Respondent provides no evidence that Petitioner had actual knowledge of
Respondent’s use of his mark prior to the publication of Respondent’s application for
opposition.6 Accordingly, viewing the facts in the light most favorable to Respondent,
the laches period began to run on the issue date of Respondent’s registration: July 25,
2023. It is Respondent’s burden to show an unreasonable delay by Petitioner in
asserting its rights against Respondent, and prejudice from that delay, since the date
of registration.
With respect to the first element, Respondent has presented no evidence other
than the passage of time. Petitioner filed its petition for cancellation on May 30, 2024,
which is ten months after Respondent’s registration issued. This length of delay,
when considered with the lack of evidence of activities or investments made
specifically during this period, is insufficient to support a laches defense. See Nahshin
v. Prod. Source Int’l LLC, No. 92051140, 2013 TTAB LEXIS 312, at *22 (TTAB 2013)
(18 months not sufficient to establish laches); Charrette Corp. v. Bowater Commc’n
Papers Inc., No. 92016167, 1989 TTAB LEXIS 52, at *11-12 (TTAB 1989) (14 month
delay not sufficient to establish laches); Manpower, Inc. v. Manpower Info. Inc., 1976
TTAB LEXIS 14, at *18-20 (TTAB 1976) (3-4 year delay not sufficient to establish
laches when the defendant “offered no evidence whatsoever as to the extent of use of
6 While Respondent references a “April 20, 2023 Non-Final Action” in connection with
Petitioner’s application, Respondent did not submit this document, and it is not otherwise of
record. While Respondent’s entire registration file is automatically part of the record by
operation of Trademark Rule 2.122, see 37 C.F.R. § 2.122(b), the same is not true of Plaintiff’s
application, see 37 C.F.R. § 2.122(d). In any event, even if we assume that the laches period
runs from April 20, 2023, the additional three months would not change our analysis
discussed herein.

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16
its marks and the activities thereunder that would establish an untenable situation
if applicant were forced to discontinue use of its mark at this time”). Accordingly,
Respondent has failed to meet the first element of a laches defense.
Even assuming a ten-month delay to be unreasonable, a party asserting laches
must also show circumstances compelling enough to give rise to an estoppel, that is,
that the party asserting the defense has relied upon the delay to its detriment.
Respondent relies only on his interrogatory response stating that he “substantially
invested in the mark, and ha[s] spent a substantial amount of time and resources
developing and defending the mark.” 11 TTABVUE 7 (citing responses at 9
TTABVUE 141-42).
While a party’s own interrogatory response is “not without evidentiary value, [it]
generally is viewed as ‘self-serving.’” ShutEmDown Sports, Inc. v. Lacy, No.
92049692, 2012 TTAB LEXIS 44, at *29 (TTAB 2012). An interrogatory response is
not the equivalent of oral testimony. Daniel J. Quirk, Inc. v. Vill. Car Co., No.
92057667, 2016 TTAB LEXIS 474, at *19 (TTAB 2016). In any event, Respondent’s
interrogatory response is too vague and conclusory to raise a genuine dispute of
material fact as to prejudice. See, e.g., Sweats Fashions, 833 F.2d at 1564 (“Mere
conclusory statements and denials do not take on dignity by placing them in affidavit
form.”); Keystone Consol. Indus., Inc. v. Franklin Inv. Corp., No. 92066927, 2024
TTAB LEXIS 290, at *22-23 (TTAB 2024) (no prejudice shown where record was
devoid of competent evidence about advertising expenditures or promotional efforts
during the laches period).

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17
In addition, the party raising the laches defense not only must show an economic
detriment, but also must show that the detriment was caused by the delay. See, e.g.,
Meyers v. Asics Corp., 974 F.2d 1304, 1308 n.1 (Fed. Cir. 1992) (“laches does require
that prejudice results from the delay”); A.C. Aukerman Co. v. R.L. Chaides Const. Co.,
960 F.2d 1020, 1033 (Fed. Cir. 1992) (en banc) (“Material prejudice to adverse parties
resulting from the plaintiff’s delay is essential to the laches defense.”). Respondent
has made no attempt to do so.
In sum, Respondent has failed to raise a genuine dispute of material fact as to his
laches defense that would preclude entry of summary judgment in Petitioner’s favor
on the claim of likelihood of confusion.
IV. Conclusion
In view of the foregoing, Petitioner’s motion for summary judgment is granted.
Judgment is entered against Respondent and in favor of Petitioner on Petitioner’s
claim of likelihood of confusion under Section 2(d) of the Trademark Act. Registration
No. 7120858 will be cancelled by the Commissioner in due course.