91289395•Marie Junie St. Clair Bernard v. Daphnee Lagredelle
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This Opinion is Not a Precedent of the TTAB Mailed: December 17, 2025 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Marie Junie St. Clair Bernard v. Daphnee Lagredelle _____ Opposition No. 91289395 _____ Alec Allen Ross of The Trademark Place, for Marie Junie St. Clair Bernard, Daphnee Lagredelle, pro se. _____ Before Goodman, Lavache, and Brock, Administrative Trademark Judges. Opinion by Brock, Administrative Trademark Judge: On Request for Reconsideration On October 30, 2025, Opposer Marie Junie St. Clair Bernard timely filed a request for reconsideration of the Board’s final decision in this opposition, pursuant to Trademark Rule 2.129(c), 37 C.F.R. § 2.129(c).1 1 9 TTABVUE.
Serial No. 91289395 - 2 - I. Background On September 30, 2025, in the final decision, the Board dismissed the opposition, on the ground that Opposer failed to establish her entitlement to a statutory cause of action. As plaintiff in the proceeding, it was Opposer’s burden to establish her entitlement and claims by a preponderance of the evidence. See Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *5-6 (citing B&B Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 144, 135 S. Ct. 1293, 191 L. Ed. 2d 222 (2015) (“The party opposing registration bears the burden of proof, see § 2.116(b), and if that burden cannot be met, the opposed mark must be registered, see 15 U.S.C. § 1063(b).”). Opposer did not introduce evidence during her trial period; instead, she improperly attached exhibits to the notice of opposition. See Trademark Rule 2.122(c), (d) (with an exception for a pleaded registration, evidence may not be made of record at the pleading stage); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 317 (2025). As Opposer did not introduce any evidence during her trial period, there was no evidence – much less a preponderance – for the Board to consider. Id. Accordingly, the opposition was dismissed for failure to establish entitlement.
Serial No. 91289395 - 3 - II. Opposer’s Arguments Opposer contends that the Board erred in “overlook[ing] evidence of record” that established Opposer’s entitlement and claims.2 In the alternative, Opposer requests that the Board “reopen the record for the limited purpose of admitting the exhibits filed with the Notice of Opposition.”3 The materials attached to the notice of opposition comprise the following: • screenshot of Opposer’s website, with URL and dated January 23, 2024; • TSDR printout of abandoned use-based application Ser. No. 90330287 for the mark FABTAH, showing Opposer as one of four owners; • TSDR printout of active use-based application Ser. No. 98057183 for the mark FABTAH, showing Opposer as the owner; and • images identified by Opposer as “Opposer’s original specimens, filed on November 19, 2020, showing use in commerce of Opposer’s FABTAH [mark] for cosmetics nearly two years prior to Applicant’s Application.”4 III. Opposer’s evidence was not filed in compliance with the relevant rules of practice. The premise underlying a request for reconsideration is that the Board erred in reaching its decision, based on record evidence and applicable law. In re Berkeley Lights, Inc., No. 88895703, 2022 TTAB LEXIS 382, at *2-3. A request may not be used to introduce into the record additional evidence or to reargue points presented in the requesting party’s brief on the case. Reconsideration should be limited to a demonstration that, based on the evidence properly of record and the applicable law, 2 9 TTABVUE 2-3. 3 Id. at 4. 4 1 TTABVUE 8-24.
Serial No. 91289395 - 4 - the Board’s decision is in error and requires appropriate change. Id., and TBMP §§ 543 and 1219.01 and cases cited therein.5 In essence, Opposer argues that her evidence was submitted properly and this evidence established Opposer’s entitlement and claims. Referring to her evidence, i.e., the exhibits to the notice of opposition, Opposer asserts: “Trademark Rule 2.122(b) provides that the pleadings and files of the opposed application are automatically of record.”6 Opposer “acknowledges that TBMP § 317 provides that exhibits attacked to pleadings are not, by themselves, evidence unless properly introduced during the trial period,” yet immediately argues the opposite, stating that “the materials were already of record in 1 TTABVUE.”7 It is not clear whether Opposer is asserting that her own applications are automatically of record under Trademark Rule 2.122(b) or whether Opposer is erroneously conflating the entirety of the “administrative record” of the proceeding, i.e., all materials available in TTABVUE, with the “evidentiary record,” e.g., properly introduced testimony, discovery responses, etc. The exhibits to the notice of opposition include applications of Opposer (and co- owners), and not the opposed application, i.e., Applicant’s application Serial No. 97570644; these applications are not automatically of record under Trademark Rule 2.122(b). “[W]ith the exception of a plaintiff’s pleaded registrations, which may be 5 To the extent that Opposer repeats her arguments as to entitlement or priority from her trial brief, this is mere reargument, which is not a proper basis for reconsideration. Opposer may not use a request for reconsideration to reargue points presented in her brief on the case. TBMP § 543. 6 9 TTABVUE 2. 7 Id. at 3.
Serial No. 91289395 - 5 - filed along with the petition to cancel or notice of opposition, documents and other exhibits may be made of record only during the testimony period of the offering party in the following two ways: (1) they may be introduced by a witness during the course of a deposition, and (2) they may be submitted pursuant to a notice of reliance filed with the Board if they meet the requirements of Trademark Rule 2.120 or 2.122.” Equine Touch Found., Inc. v. Equinology, Inc., No. 92050044, 2009 TTAB LEXIS 25, at *7-8. As to the second possibility regarding Opposer’s reference to the “record,” mere inclusion of material in the TTABVUE docket for the opposition does not convert that material into properly introduced evidence at trial. See Trademark Rule 2.123(k) (“Evidence not obtained and filed in compliance with these sections will not be considered.”); see also Baseball America Inc. v. Powerplay Sports Ltd., No. 91120166, 2001 TTAB LEXIS 444, at *4 n.8 (materials submitted outside of applicant’s assigned testimony period and which failed to comply with the Board’s evidentiary rules given no consideration); Original Appalachian Artworks Inc. v. Streeter, No. 9171402, 1987 TTAB LEXIS 45, at *2 n.3 (stating that a party may not reasonably presume evidence is of record when that evidence is not offered in accordance with the rules). Opposer should have entered her documentary evidence and application files into the evidentiary record during her trial period, as attaching them to her notice of opposition did not make them part of the trial record.8 See Trademark Rule 2.121(a) 8 Indeed, immediately after filing her notice of opposition, Opposer received the Notice of Institution from the Board, advising the parties to review “Trademark Rules 2.120(k), 2.121, 2.122, 2.123 and 2.125, as well as TBMP Chapter 700” specifically for information regarding
Serial No. 91289395 - 6 - (“No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board.”). Opposer attempts to circumvent these clear rules by asserting that the exhibits attached to its notice of opposition “were expressly cited by the Board in its opinion at page 3, confirming their presence in the record.”9 As stated previously, the Board was aware that materials were attached to the notice of opposition and noted them,10 but just as the mere filing of material entered into TTABVUE does not automatically enter material into the evidentiary record, see Trademark Rule 2.123(k), neither does the Board’s reference to these materials. Next, Opposer points to “Applicant’s repeated failure to participate in discovery or engage in the required conference [which] prevented Opposer from submitting a formal notice of reliance or testimonial evidence.”11 Initially, we note that Opposer stated in her brief that “Applicant repeatedly delayed the required discovery conference,”12 not that Applicant “fail[ed] to … engage in the required conference.” Despite some inconsistency in Opposer’s characterization of the interaction between the parties, the discovery conference appears to have occurred, as Opposer served “the noticing, taking, serving and submitting of evidence and testimony.” 2 TTABVUE 5. The Notice provided the trial schedule, including Opposer’s trial period. 9 Id. at 3. 10 8 TTABVUE 4. 11 9 TTABVUE 3. 12 5 TTABVUE 2.
Serial No. 91289395 - 7 - discovery requests upon Applicant.13 To the extent that Applicant “never provided disclosures or trial testimony,” as the defendant in this proceeding, Applicant is not required to do so; the burden rests on Opposer to establish her statutory entitlement to oppose and prove her claims. See B&B Hardware, 575 U.S. 138. We fail to see how Applicant’s failure to participate precluded Opposer from submitting her own evidence of entitlement and priority of use during her trial period. In sum, Opposer failed to properly introduce evidence into the trial record to substantiate her entitlement and claims. Because this evidence was not properly of record, we did not err in finding that Opposer could not establish her entitlement. See, e.g., Game Plan, Inc. v. Uninterrupted IP, LLC, __ F.4th __, 2025 U.S. App. LEXIS 32224, at *11-13 (Fed. Cir., slip op. issued Dec. 10, 2025) (“[D]ocuments attached to pleadings or motions are not evidence unless properly introduced during trial … the Board did not abuse its discretion by declining to consider evidence that Game Plan had not entered into the trial record … and the Board did not err by excluding evidence not submitted during the designated trial period.”). In the alternative, Opposer requests to “reopen the record” to allow Opposer to introduce evidence. The Board is able to extend the time for a certain action before the original time or its extension expires. Fed. R. Civ. P. 6(b). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 509 et seq. Similarly, after the time for an action has passed, the Board can reopen time—during a proceeding. See TMBP § 509.01. Here, a final decision has issued so there is no 13 Id.
Serial No. 91289395 - 8 - proceeding to reopen.14 Opposer’s motion to reopen to submit testimony after final decision is untimely and denied. Opposer’s request for reconsideration is denied; Opposer’s request to reopen is denied. 14 In some cases, it is possible to reopen proceedings upon a showing of “excusable neglect.” Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Mfg. Co., No. 9195170, 2000 TTAB LEXIS 467, at *10 (“Pursuant to Fed. R. Civ. P. 6(b)(2), the requisite showing for reopening an expired period is that of excusable neglect.”). The Supreme Court explained that determining whether a party’s neglect is excusable is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission” including: (1) the danger of prejudice to the non-moving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the moving party; and (4) whether the moving party has acted in good faith. See Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). Taking into account the circumstances, equity weighs strongly against setting aside the final decision and allowing Opposer to retry the case, and moreover, Opposer has neither asserted nor substantiated excusable neglect. Even if we consider Pioneer, first, Applicant would suffer prejudice re-litigating a case she has already won. Second, reopening Opposer’s testimony period to allow Opposer to retry the case would add, at a minimum, seven months to this proceeding. Third, it was entirely within Opposer’s reasonable control to properly introduce evidence pursuant to the proceeding schedule and applicable rules and procedures. Therefore, even if Opposer had argued excusable neglect, the first three Pioneer factors weigh heavily against reopening proceedings, and the fourth factor is neutral as there is no evidence that Opposer acted in good or bad faith in failing to comply with the Board’s schedule, rules and procedures. Accordingly, we find that Opposer has failed to establish excusable neglect as necessary to reopen proceedings for a retrial.
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