91280069•Myka Designs Inc. v. TGEcommerce Kft.
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Mailed: March 3, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Myka Designs Inc. v. TGEcommerce Kft. _____ Opposition No. 91280069 _____ Saul Acherman and John Marh of Jafari Law Group for Myka Designs Inc. Jonathan Agmon of Agmon Law, P.C. for TGEcommerce Kft. _____ Before Pologeorgis, Dunn, and Allard, Administrative Trademark Judges. Opinion by Dunn, Administrative Trademark Judge: TGEcommerce Kft. (Applicant), a limited liability company of Hungary, seeks registration on the Principal Register of the mark MYKA (in standard characters) for: Jewelry for sale in online stores; personalized and customizable jewelry for sale in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry; leather jewelry and accessory boxes; jewelry plated with precious metals; key chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not of precious metal; cufflinks; watches; wrist watches; watch bands and straps; watches and jewelry; watches and straps for watches; earrings; ankle bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry; diamond jewelry, in International Class 14, and This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB
Opposition No. 91280069. - 2 - On-line retail store services featuring jewelry, in International Class 35.1 Myka Designs Inc. (Opposer), a corporation of Canada, filed a notice of opposition2 to registration of Applicant’s mark, which alleges likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s previously used mark MYKA, the subject of common law use and a pending application3 for: Artificial gemstones; Boxes for timepieces; Charms for key rings or key chains; Gemstones; Imitation jewellery; Imitation pearls; Jewellery; Jewellery boxes; Key chains; Key rings; Ornaments of precious metal in the nature of jewelry; Pearls; Precious metals; Statues of precious metal and their alloys; Timepieces, in International Class 14; and Retail store services featuring luggage, jewellery, clothes, art materials, in International Class 35. 1 Application Serial No. 90692533 filed May 5, 2021 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce, and subsequently amended to claim, in both classes, first use anywhere since at least as early as July 11, 2021 and use in commerce since at least as early as August 3, 2021. References to the application are to the downloadable .pdf version of documents available from the USPTO’s TSDR (Trademark Status and Document Retrieval) database. The TTABVUE citations refer to the Board’s electronic docket, with the first number referring to the docket entry and the second number, if applicable, referring to the page within the entry. 2 1 TTABVUE. 3 Application Serial No. 97036911 filed September 21, 2021 also includes goods in International Class 18 and 25, and additional services in International Class 35. While all four classes are listed in the ESTTA cover sheet for the notice of opposition, the attached allegations assert a likelihood of confusion with the “jewellry-related” goods and services of International Class 14 and 35 listed above (1 TTABVUE 10, 17). With respect to International Class 18, Applicant alleges a bona fide intention to use the mark in commerce. With respect to International Class 14, 25, and 35, Applicant claims dates of first use anywhere since at least as early as 1988 and use in commerce since at least as early as 1993.
Opposition No. 91280069. - 3 - Applicant’s answer admits Opposer offers jewelry online to customers in Canada and that the subject application was cited against Opposer, but otherwise denies the salient allegations in the notice of opposition.4 On February 1, 2024, the parties filed a joint stipulation, subsequently approved by the Board, that neither party will introduce into evidence a document that (1) was not produced in discovery, provided that the requesting party did not already have the document, and that the document is not publicly freely available and (2) has been redacted, except for information related to accounts or phone numbers of the parties.5 The case is fully briefed. We sustain the opposition. I. THE RECORD The record includes the pleadings; the previously mentioned stipulation; the submissions of the parties during their respective trial periods; and pursuant to Trademark Rule 2.122(b), 37 C.F.R. §2.122(b), the file history of the opposed application. Although we do not list its contents, the entire record has been carefully considered, and relevant evidence is discussed throughout this opinion. See Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (“We have held ‘on multiple occasions that failure to explicitly discuss every issue or every piece of evidence does not alone establish that the tribunal did not consider it.’”) (citation and 4 4 TTABVUE 3, 5, admissions at Pars. 6, 13. 5 21 TTABVUE (stipulation) and 23 TTABVUE (Board approval).
Opposition No. 91280069. - 4 - internal quotation marks omitted); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite all of the evidence it considered does not mean the evidence was not, in fact, reviewed.”) (citation omitted). After Opposer’s rebuttal testimony was submitted, Applicant filed a motion to strike it in part on various grounds.6 With respect to the procedural objection to documents produced by Applicant during discovery (Exs. 48-1 and 48-2), the Board granted the motion to strike because those documents were not subject to submission via notice of reliance and had not been otherwise authenticated.7 We have given no consideration to the stricken documents. In an appendix to its brief, Applicant renewed several substantive objections to Opposer’s rebuttal evidence and raised several new objections based on lack of foundation or authentication, and violation of the stipulation against submission of redacted documents not related to accounts or phone numbers of the parties.8 We agree with Opposer that the new objections raising curable defects are untimely and have been waived.9 Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *13 (“Finally, we overrule Applicant’s objections to the lack of foundation for Opposer’s Internet materials in Exhibit 3 to the Sabhnani Declaration because Applicant’s objection is a procedural one that was waived when Applicant did not timely move to strike the pertinent portion of the Sabhnani Declaration following 6 44 TTABVUE. 7 50 TTABVUE 6-8. 8 58 TTABVUE 45-59. 9 59 TTABVUE 38-39.
Opposition No. 91280069. - 5 - its receipt.”). Because the stipulation is not a blanket prohibition against redaction, the mere presence of redaction in the rebuttal exhibits does not establish non-compliance with the stipulation. Applicant does not explain how the redaction is improper and we decline to guess.10 We need not address Opposer’s argument that the redaction was proper; Applicant failed, as movant, to support its motion.11 Applicant otherwise moves to strike rebuttal evidence as hearsay, irrelevant, and beyond the scope of proper rebuttal because it is cumulative, and repetitive of evidence submitted during Opposer’s case in chief.12 While we prefer reference to the original record, the objection as to the cumulative evidence is denied; we find the evidence responsive to points raised in Applicant’s brief and so it serves as proper rebuttal. With respect to the remaining objections, none are outcome determinative and concern the weight the documents and testimony should be given rather than their admissibility. The Board is capable of weighing the relevance and strength or weakness of the objected-to testimony and exhibits in this specific case, including any inherent limitations, and this precludes the need to strike that evidence. Norris v. PAVE: Promoting Awareness, Victim Empowerment, No. 91234909, 2019 TTAB LEXIS 345, at *4. As a result, we choose not to make specific rulings on each and 10 58 TTABVUE 11 59 TTABVUE 36-37. 12 58 TTABVUE 45-46.
Opposition No. 91280069. - 6 - every objection. As necessary and appropriate, we point out in this decision any limitations on the evidence. See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No. 92050879, 2013 TTAB LEXIS 347, at *13-14, aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014). II. APPLICANT’S MOTION TO AMEND Embedded in Applicant’s trial brief is a contingent motion to amend the subject application’s goods and services. Applicant moves:13 Accordingly, if the Board finds that Applicant’s Application is not entitled to registration given that certain specific International Class 014 goods are substantially identical, Applicant requests the Board to allow it time in which to file a motion to amend the application to conform to the finding of the Board; and in the alternative, requests the Board’s consent for Applicant to amend Applicant’s Specification of Goods International Class 014 deleting Applicant’s Specification of Goods in International Class except the item “personalized and customizable jewelry for sale in online stores” and amend its International Class 035 Specification of Services from “On-line retail store services featuring jewelry” to “On-line retail store services featuring personalized and customized jewelry”. In the alternative, Applicant requests the Board to make use of its power to make such restrictions as it may deem necessary to the goods or services identified in the Application. The motion does not contain Opposer’s express or implied consent to the proposed amendment nor does it indicate any attempt by Applicant to obtain such consent. Trademark Rule 2.133(a), 37 CFR 2.133(a) provides that “[a]n application subject to an opposition may not be amended in substance ... except with the consent of the other party or parties and the approval of the Trademark Trial and Appeal Board, or upon motion granted by the Board.” In the absence of consent, a motion to amend an application “should be made prior to trial to give the opposer fair notice.” City of 13 58 TTABVUE 39.
Opposition No. 91280069. - 7 - London Distillery, Ltd. v. Hayman Grp. Ltd., No. 91235280, 2020 TTAB LEXIS 501, at *40. Accord Pers. Data Sys. v. Parameter Driven Software., 1991 TTAB LEXIS 26, at *6-7 (“That is to say, the Board will exercise its discretion under Trademark Rule 2.133(b) only where the petitioner or opposer has been put on notice during the trial period that the Board will be considering the issue of confusion with respect to a recitation of goods or services narrower in scope than that which was shown in the registration or application at the commencement of the proceeding.”). Here, the trial is over, and Opposer submitted its brief arguing why its evidence shows a likelihood of confusion between its MYKA mark for jewelry and Applicant’s mark for the goods and services described in the application. The issue of likelihood of confusion with goods and services narrower than those in the application has not been tried. “To allow Applicant to delete [goods and services] from the application at this late date is unfair to Opposer.” Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *12-13. Applicant’s motion to amend the subject application is denied as untimely. III. ENTITLEMENT TO A STATUTORY CAUSE OF ACTION Entitlement to a statutory cause of action is a requirement that must be proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014)). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute, and (ii) proximate causation. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020).
Opposition No. 91280069. - 8 - 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 of a mark demonstrates damage proximately caused by registration of the mark. Id. Here, Opposer submitted a copy of the Office Action citing the potential conflict between the MYKA mark in Opposer’s pending Application Serial No. 97036911 and Applicant’s MYKA mark.14 See Australian Therapeutic, 965 F.3d at 1375 (“A [plaintiff] may demonstrate a real interest and reasonable belief of damage where the [plaintiff] has filed a trademark application that is refused registration based on a likelihood of confusion with the mark subject to [opposition].”); Major League Soccer, L.L.C. v. F.C. Internazionale Milano S.p.A., No. 91247160, 2020 TTAB LEXIS 502, at *17 (“Opposer pleads ownership of several applications for marks containing the term INTER which have been refused registration based on the involved application and these pleaded facts help show Opposer is statutorily entitled to bring this opposition”). As set forth above, Applicant’s answer admits its application was cited as a bar to Opposer’s application.15 Opposer has established, by a preponderance of the evidence, its entitlement to bring the likelihood of confusion claim. 14 26 TTABVUE 38-43, at 42. 15 4 TTABVUE 5.
Opposition No. 91280069. - 9 - IV. LIKELIHOOD OF CONFUSION CLAIM Under Section 2(d) of the Trademark Act, a mark may not be registered if it “consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion ….” 15 U.S.C. § 1052(d). As the plaintiff in this proceeding, Opposer bears the burden of proof. Bose Corp. v. QSC Audio Prods., 293 F.3d 1367, 1370 (Fed. Cir. 2002). A. Priority Priority under Trademark Section 2(d) requires either a registration or “a mark or trade name previously used.” 15 U.S.C. 1052(d). “The party who first uses a mark in commerce is said to have priority over other users.” Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363, 1369 (Fed. Cir. 2025) quoting Hana Fin., Inc. v. Hana Bank, 574 U.S. 418, 419 (2015). In a case involving common law rights, “the decision as to priority is made in accordance with the preponderance of the evidence.” Hydro- Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d 1470, 1472 (Fed. Cir. 1987). Because Applicant may rely on the filing date of its subject application to establish the applied-for mark’s constructive date of first use, and Applicant does not contend that it is entitled to an earlier date, Opposer must establish priority earlier than Applicant’s May 5, 2021 filing date.16 See Trademark Act Section 7(c), 15 U.S.C. 16 Applicant’s response to a request for admission (29 TTABVUE 5) admits that its mark “was first used in commerce no earlier than August 3, 2021,” the same date alleged in its amendment to allege use.
Opposition No. 91280069. - 10 - § 1057(c) (filing an application constitutes constructive use of the mark conferring a right of priority contingent upon registration); Syngenta Crop Protection, Inc. v. Bio- Chek, LLC, Opp. No. 91175091, 2009 TTAB LEXIS 70, at *18. “To establish priority, the [plaintiff] must show proprietary rights in the mark that produce a likelihood of confusion. These proprietary rights may arise from a prior registration, prior trademark or service mark use, prior use as a trade name, prior use analogous to trademark or service mark use, or any other use sufficient to establish proprietary rights.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 1162 (Fed. Cir. 2002) (citation omitted). Opposer has not alleged use analogous to trademark use so we focus on actual use. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS 328, at *39 (“Reliance on priority through analogous use must be pleaded.”). In support of its common law priority, Opposer Myka Designs submitted the testimony declaration of Michael Bremer, Opposer’s founding member and President, averring that Opposer began as a family business in Canada comprising Bremer and his wife Maja Bremer, a jewelry designer; that Bremer and his wife launched their first jewelry collection using the MYKA mark in 1987 as a part-time business; in 1991, Bremer and his wife devoted themselves full-time to the business and had their first professional product launch in Canada; that in 1993, Bremer and his wife had their first sales to the United States; that since 1993 the mark MYKA has been continuously used on the goods themselves and on product packaging in U.S. commerce; that in 1993 Bremer and his wife incorporated the business in Canada as
Opposition No. 91280069. - 11 - Myka Designs, Inc. and assigned “any and all rights in the MYKA trademarks” to the corporation; that the mark MYKA has been continuously used on jewelry for sale in online stores; and the mark MYKA also is used on displays at trade shows, including in the United States; on marketing materials, on social media and since 2004 on Opposer’s e-commerce website mykadesigns.com.17 The testimony declaration is supported by invoices to U.S. customers for jewelry dated 1993, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2005, 2006, 2007, 2008, 2009, 2010, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022 and 2023;18 photographs of the goods and product displays bearing the mark;19 photographs of packaging bearing the mark;20 sample advertisements for MYKA jewelry distributed in the United States;21 sample website and social media pages of Opposer advertising MYKA jewelry;22 customer lists;23 and summaries of sales and marketing expenditures, including annual U.S. sales from 2016 to 2023.24 17 28 TTABVUE 3-7. 18 28 TTABVUE 5, 8; 24 TTABVUE 4-214. 19 28 TTABVUE 5, 7, 11, 27, 30-31, 33-36, 38, 57-64, 92-95. 20 28 TTABVUE 7; 25-26, 29, 32, 37, 39-44, 47-56. 21 28 TTABVUE 9, 11; 67-77, 80-90. 22 28 TTABVUE 9-10; 98-109, 119-148. 23 28 TTABVUE 10; 24 TTABVUE 225-232. 24 28 TTABVUE 15; 24 TTABVUE 234-236.
Opposition No. 91280069. - 12 - Applicant contends that this evidence is insufficient to establish priority because Opposer is not the owner of the MYKA mark and because Opposer has not shown prior use of the term MYKA.25 We find neither of these arguments persuasive. Applicant’s non-ownership argument is based on Opposer’s alleged statement in its application that Opposer did not devise the mark, which Applicant describes as a statement that limits Opposer’s claim, and Opposer’s testimony that Bremer and his wife Maja, co-founders of Opposer, first used the MYKA mark, and later assigned the mark to Opposer, the corporation they created.26 We find the first point to be irrelevant to ownership of the MYKA mark. Opposer’s application includes the “miscellaneous statement:”27 THE WORDING “MYKA” WAS THOUGHT OF BY A FAMILY MEMBER OVER 30 YEARS AGO AND IS A COMBINATION OF OWNERS NAMES MAJA & MICHAEL = MYKA “It is axiomatic in trademark law that ownership of a mark is predicated on priority of use in commerce.” Lyons v. Am. Coll. of Veterinary Sports Med. & Rehab., 859 F.3d 1023, 1027 (Fed. Cir. 2017), cert. denied, 1583 U.S. 933 (2017). There is no dispute that Bremer and his wife first used the MYKA mark, and Opposer currently uses the MYKA mark. The statement in the application regarding the origin of the term MYKA is not a restriction of Opposer’s claim of ownership, does not allege that the person who coined the term ever used or intended to use the term on jewelry or 25 58 TTABVUE 22-39. Because we have no jurisdiction over Opposer’s pending later-filed application, we will not address arguments (58 TTABVUE 22, 25-27) about its registrability. Home Juice Co. v. Runglin Cos., No. 92014533, 1986 TTAB LEXIS 22, at *5 n.7. 26 58 TTABVUE 23, and n.81. 27 26 TTABVUE 129.
Opposition No. 91280069. - 13 - retail jewelry services, and so has nothing to do with ownership of the mark. Applicant’s citation28 to legal guidance on admissions in applications and ambiguity in descriptions of the mark have no bearing here. “Neither a formal assignment nor recordation of an assignment in the Patent and Trademark Office is necessary to pass title or ownership to common law or statutory trademark rights.” Huang v. Tzu Wei Chen Food Co. Ltd., 849 F.2d 1458, 1460 (Fed. Cir. 1988) quoting Am. Mfg. Co. v. Phase Indus., No. 92010519, 1976 TTAB LEXIS 98; Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1132 (CCPA 1978) (“[A]n oral assignment [of common law rights] can be proven by either direct or circumstantial evidence.”). Accord J. Thomas McCarthy, 2 McCarthy on Trademarks and Unfair Competition, § 18:4 (5th ed., December 2025 update) (“McCarthy”) (“An assignment in writing is not necessary to pass common law rights in a trademark. If there is no documentary evidence of an assignment, it may be proven by the clear and uncontradicted oral testimony of a person in a position to have actual knowledge.”). In view of this clear authority, we disagree with Applicant’s contention that Opposer has failed to show its ownership of the mark because the record lacks a written assignment.29 Applicant does not allege that anyone but Opposer uses the mark, or has done so since Opposer’s formation in 1993. Bremer’s testimony regarding he and his wife’s formation of Opposer, and the assignment of the mark from the family business created by them to the corporation they created, was clear 28 58 TTABVUE 23 and n. 81. 29 58 TTABVUE 23-24.
Opposition No. 91280069. - 14 - and convincing, and is sufficient to show that Opposer has been the owner of the mark since 1993. With respect to the argument that Opposer has not shown prior use of the term MYKA, Applicant contends:30 Opposer’s evidence fails to establish continuous use of MYKA as a standalone word mark. The invoices and specimens do not link specific sales to the word mark MYKA, and most records show only the use of the composite or design marks. It is unclear which of Opposer’s products were sold in US commerce after 2004. For example, 28 TTABVUE 34 shows what appears to be a chain with the stylized MYKA mark thereon with the serial number B2082RM. However, none of the invoices provided by Opposer reflect this serial number and therefore there is no evidence that this product was sold in US commerce. As a preliminary matter, we point out that Opposer’s priority does not depend on its prior use of the mark being continuous, so long as the use has not been abandoned. See W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1128 (Fed. Cir. 1994) (Section 2(d) “does not speak of ‘continuous use,’ but rather of whether the mark or trade name has been ‘previously used in the United States by another and not abandoned.’”). Here, Applicant points to no defect or inconsistency in Opposer’s testimony and exhibits regarding its use of the MYKA mark which would warrant the additional documentation (such as “invoices and specimens [that] link specific sales to the word mark MYKA”) that Applicant suggests is necessary. As described earlier, Opposer submitted photos of jewelry bearing the MYKA mark directly or on packaging or labels, testimony as to how and when and to whom the MYKA jewelry was advertised and sold, a range of invoices over decades 30 58 TTABVUE 27.
Opposition No. 91280069. - 15 - corroborating that the MYKA jewelry has been sold to U.S. customers since 1993, and annual sales summaries. Bremer testified that since 1993 the mark MYKA has been continuously used on the goods themselves. Specifically, he averred:31 As early as 1993, the jewelry design products we were selling and shipping throughout the United States included the MYKA Trademarks; specifically, our jewelry products would be branded with the term MYKA, by engraving the mark MYKA on the molds themselves, so that each jewelry product would be physically cast with MYKA on the product itself. The record includes examples of the mark on the goods as shown below: 32 31 28 TTABVUE 5. 32 28 TTABVUE 30.
Opposition No. 91280069. - 16 - 33 34 Bremer also testified: As early as 1993, Myka [Designs] has and continues to use labels affixed to product packaging that display the MYKA Trademarks. Further, our product packaging itself has since 1993 [] continued to display the MYKA mark. The record includes examples of the mark on the labels and packaging for the goods as shown below: 33 28 TTABVUE 34. 34 28 TTABVUE 59.
Opposition No. 91280069. - 17 - 35 36 35 28 TTABVUE 32. 36 28 TTABVUE 64.
Opposition No. 91280069. - 18 - With respect to its services, Bremer testified:37 [A]t least as early as 2004 Myka Designs has been and continues to offer on- line retail store services featuring jewelry. The record includes exemplary excerpts from Opposer’s website advertising the retail jewelry services under the MYKA mark. 37 28 TTABVUE 6.
Opposition No. 91280069. - 19 - 38 39 The evidence is sufficient to demonstrate Opposer’s use of the mark MYKA in commerce on jewelry since 1993 and retail jewelry store services since 2004. Oral 38 28 TTABVUE 107. 39 28 TTABVUE 106.
Opposition No. 91280069. - 20 - testimony, if sufficiently probative, is normally satisfactory to establish priority of use. Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 130 (CCPA 1965). Accord Araujo v. Framboise Holdings Inc., 99 F.4th 1377, 1381 (Fed. Cir. 2024) (“When presented with the evidence provided in the Extrakt declaration and nothing to contradict it, a reasonable mind could conclude that Framboise had established its priority date by a preponderance of the evidence.”). Here, as shown by the representative examples above, Opposer offered ample documentary corroboration of the testimony showing use of the mark MYKA on jewelry, the labels directly associated with the jewelry, and advertising Opposer’s online retail jewelry services. Applicant’s response to this evidence does not dispute Opposer’s use of the mark MYKA on jewelry since 1993 or its online store since 2004. Instead, Applicant contends that Opposer’s different displays of the MYKA mark over the years are equivalent to different marks, and because Opposer has failed to meet the strict requirements for tacking, has not shown priority of use.40 Applicant argues:41 Opposer’s Prior Marks comprise (i) a graphical design featuring a circle, and a highly stylized letter M [ ]; (ii) a design featuring a circle and a highly stylized rendering of what appears to be the word Myka [ ]; (iii) the design in (i) with the word MYKA and below the words “BY MAYA AND MICHAEL BREMER” [. ]. Two other uses appear in the evidence: (iv) found online - - which Opposer did not plead 40 58 TTABVUE 15, 27-28, 31-39. 41 58 TTABVUE 27. To make the argument easier to follow, we added the mark described in brackets following each description.
Opposition No. 91280069. - 21 - was used on its goods, and (v) its company name MYKA DESIGNS INC. which appears on its invoices, nearly always next to one of Opposer’s Prior Marks. To these uses of the mark we would add the use of the MYKA mark in block lettering as shown above and reproduced here: . The doctrine of tacking allows “trademark owners [], in limited circumstances, [to] ‘clothe a new mark with the priority position of an older mark.” Bertini v. Apple Inc., 63 F.4th 1373, 1377 (Fed. Cir. 2023) quoting Hana Fin., Inc., 574 U.S. at 419-20. Without tacking “a trademark owner’s priority in his mark would be reduced each time he made the slightest alteration to the mark, which would discourage him from altering the mark in response to changing consumer preferences, evolving aesthetic developments, or new advertising and marketing styles.” Id. (citation omitted). Tacking is permitted when the new and revised mark are legal equivalents, and “‘create the same, continuing commercial impression’ so that consumers ‘consider both as the same mark.’” Id. (citation omitted). This opposition differs from the usual tacking case because, as shown by the testimony and exhibits, Opposer’s “original” use of the MYKA mark on its jewelry and retail jewelry services has remained the same. As set forth above, Applicant cites as the “revised” mark the uses of the MYKA mark with the separate stylized M design or the additional informative wording as seen on Opposer’s website, advertising and invoices. However, because the original mark remains in use, the question of whether the revised mark creates the same continuing commercial impression to the original mark does not arise. To put it another way, Applicant has added to its uses of the
Opposition No. 91280069. - 22 - MYKA in certain contexts while continuing its use of the MYKA mark on the jewelry goods and services. Applicant also contends that the differences between the MYKA marks as used in two different fonts and with the oval background design, as set forth below and used on the jewelry goods and services, result in the marks not having the same continuing commercial impression, and so Opposer cannot establish prior use. We cannot agree. The use of a common geometric shape as a background generally is not considered a distinctive element of a mark. See In re Dixie Rests. Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (“Neither the design element nor the generic term ‘café’ offers sufficient distinctiveness to create a different commercial impression. Indeed, as the board found, the design is an ordinary geometric shape that serves as a background for the word mark.”); In re Kysela Pere et Fils Ltd., No. 77686637, 2011 TTAB 70, at *19 (“And certainly the oval designs in the marks are merely background or ‘carrier’ elements, and do not make a strong commercial impression.”). Accord McCarthy, at 7:29 (“The rationale [for the rule that common geometric shapes are regarded as not being inherently distinctive] is that such designs have been so widely and commonly used as mere decorative graphic elements that the origin-indicating ability of such designs has been diminished.”). In the same way, the font, or stylization, used to display a literal term generally is not considered a distinctive part of the mark. See Bos. Red Sox Baseball Club LP
Opposition No. 91280069. - 23 - v. Sherman, No. 91172268, 2008 TTAB LEXIS 67, at *33 (“It has frequently been stated that it is the word portion of marks, rather than the particular display of the words, that is likely to have a greater impact on purchasers and be remembered by them.”); In re 1st USA Realty Professionals Inc., No. 78553715, 2007 TTAB LEXIS 73, at *15 (“The registered mark is for the words FIRST USA in a slightly stylized typestyle. However, the stylization is so minimal that it does not make a real commercial impression. Because of this, consumers will view the mark as merely the words FIRST USA.”). Accord McCarthy at 17:26 (“Trademark rights inure in the basic commercial impression created by a mark, not in any particular format or style.”). We find that Opposer has displayed its MYKA mark as both and , sometimes at the same time, and has done so since 1993 with the goods and 2004 with the services. Because Opposer’s use has been sufficient for priority, we need not consider whether its use of its tradename MYKA DESIGNS also functions as a trademark. However, we reproduce an excerpt from Applicant’s brief offered to demonstrate mere trade name use:42 42 58 TTABVUE 30.
Opposition No. 91280069. - 24 - This use by Opposer over three consecutive years shows use of both the cursive and block letter displays of the MYKA mark. Similarly, Applicant offered webpages to show that Opposer uses a modified mark, but some of the pages in fact show both:
Opposition No. 91280069. - 25 - 43 In sum, we find that Opposer’s testimony and supporting documents establish Opposer’s use of the MYKA mark on jewelry since 1993 and in connection with retail jewelry services since 2004. We reject Applicant’s contentions that Opposer does not own the mark or that its varied displays of the MYKA mark are insufficient for priority. In considering the testimony and evidence of priority, “we look at the evidence as a whole, as if each piece of evidence were part of a puzzle which when fitted together, establishes prior use.” See W. Fla. Florida Seafood Inc., 31 F.3d at 1125-26. 43 51 TTABVUE 54.
Opposition No. 91280069. - 26 - Opposer has established, by a preponderance of the evidence, prior use of its common law MYKA mark for jewelry goods and services necessary for its likelihood of confusion claim. B. Likelihood Of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all the probative facts in evidence relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (DuPont). “Not all of the DuPont factors are relevant to every case,” and we consider each DuPont factor for which there are arguments and evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018). As noted earlier, Opposer bears the burden of proof. Bose Corp., 293 F.3d at 1370. In this case, that burden is easier to meet in view of Applicant’s decision to argue only that Opposer cannot establish priority of use. More specifically, Applicant’s brief lists the “statement of the issues” as whether Opposer is the owner of the MYKA mark and whether Opposer proved priority, argues only those issues, and concludes that the opposition should be dismissed because Opposer lacks ownership of the mark and failed to prove its priority.44 Accordingly, we need only briefly address whether Opposer has demonstrated a likelihood of confusion as Applicant appears to have conceded the issue. 44 58 TTABVUE 3 (table of contents), 7 (statement of the issues), 40 (conclusion).
Opposition No. 91280069. - 27 - 1. Similarity or Dissimilarity of the Marks The first DuPont factor concerns “[t]he similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” DuPont, 476 F.2d at 1361. As set forth above, Opposer has established prior common law rights in the term MYKA. This is the identical literal term that Applicant seeks to register. Moreover, Applicant seeks registration in standard character form, meaning it would be free to adopt Opposer’s stylization, making the marks identical except for the absence of the oval background. See In re Viterra Inc., 671 F.3d 1358, 1363-64 (Fed. Cir. 2012) (“First, to the extent the Board simply held that a standard character mark is not limited to any particular font, size, style, or color, it is entirely consistent with our case law, the relevant regulations, and the TMEP. Indeed, we previously have rejected an applicant’s argument that its standard character mark was distinct from a mark registered in stylized lettering with a design.”) (internal citation omitted). Because the oval background is not a distinctive feature, we find Opposer’s common law MYKA mark creates the same commercial impression as, and is legally identical to Applicant’s MYKA mark. This factor weighs heavily in favor of finding confusion is likely. 2. Similarity or Dissimilarity of the Goods and Services We turn next to DuPont factor two regarding the similarity or dissimilarity of the parties’ respective goods and services. DuPont, 476 F.2d at 1361. Our determination must be based on the identification of goods and services in the subject application. See Stone Lion Cap. Parts., LP v. Lion Cap. LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014)
Opposition No. 91280069. - 28 - (“[T]he services recited in the application determine the scope of the post-grant benefit of registration.”). As set forth earlier, Applicant seeks registration for: Jewelry for sale in online stores; personalized and customizable jewelry for sale in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry; leather jewelry and accessory boxes; jewelry plated with precious metals; key chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not of precious metal; cufflinks; watches; wrist watches; watch bands and straps; watches and jewelry; watches and straps for watches; earrings; ankle bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry; diamond jewelry, in International Class 14, and . On-line retail store services featuring jewelry, in International Class 35. “Because each class in Applicant’s multi-class application is, in effect, a separate application, we consider each class separately, and determine whether Opposer has shown a likelihood of confusion with respect to each.” North Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593, 2015 TTAB LEXIS 328, at *32. However, there is no need to establish a likelihood of confusion as to each good or service in each class; likely confusion as to even one good or service identified in each class in the application is sufficient to establish a likelihood of confusion as to the entire class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981). Opposer’s goods offered under the MYKA mark were addressed in Bremer’s testimony:45 Myka Designs’ products offered and sold under the MYKA Trademarks include jewelry, bracelets, necklaces, chains, rings, leather jewelry and accessory boxes, jewelry plated with precious metals, key chains for use as jewelry, jewelry charms, clasps for jewelry, jewelry cases, cufflinks, watches and straps for watches, earrings, ankle bracelets, artificial gemstones, boxes for timepieces, charms for key rings or key chains, gemstones, imitation jewelry, imitation pearls, jewelry, jewelry boxes, key chains, key rings, ornaments of 45 28 TTABVUE 6.
Opposition No. 91280069. - 29 - precious metal in the nature of jewelry, pearls, precious metals, statues of precious metal and their alloys, and timepieces. Based on this uncontradicted testimony, we find the goods are identical in part.46 With respect to the services, as set forth above, Bremer testified that “as early as 2004 Myka Designs has been and continues to offer on-line retail store services featuring jewelry,”47 and these services are identical to those in the opposed application. Based on this uncontradicted testimony, we find the services are identical. Accordingly, the second DuPont factor also strongly favors a finding of likelihood of confusion. 3. Similarity or Dissimilarity of the Channels of Trade and Classes of Purchasers The third DuPont factor assesses “the similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As with the similarity or dissimilarity goods and services, our determination must be based on the identification of goods and services in the subject application. See Stone Lion, 746 F.3d at 1324. With respect to Opposer’s channels of trade for its common law mark, Bremer testified:48 Since 1993, Myka Designs has and continued to hire sales representatives that assist Myka Designs with sales specifically in the United States; this includes Fashion/Jewelry & Gift Industry Sales Representatives … working with retail store owners to market MYKA, write orders, as well as attend instore 46 Applicant explicitly admits that its goods overlap with Opposer’s goods in part, stating “In relation to International Class 014, Applicant agrees that the following items overlap – jewelry, charms, key chains.” 58 TTABVUE 39. 47 28 TTABVUE 6. 48 28 TTABVUE 6, 10.
Opposition No. 91280069. - 30 - marketing events to promote the brand. Myka Designs also contracts with independent retail stores to sell Myka Designs Jewelry Products. Located across the USA, each store that carries our brand is marketing the MYKA Trademarks, as they have a constant flow of customers passing through. … at least as early as 2004 Myka Designs has been and continues to offer on-line retail store services featuring jewelry. With respect to Opposer’s classes of purchasers for its common law mark, Bremer testified:49 Myka Designs Jewelry Products under the MYKA Trademarks are targeted towards and purchased by consumers of all ages and demographics. In the application, Applicant’s identification of goods and services does not include any restriction as to trade channels or classes of purchasers, and we must presume that its goods and services move in all normal and usual channels of trade and methods of distribution for those goods and services and are available for purchase by all the usual consumers. See Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990); Hard Rock Cafe Int’l (USA), No. 91101304, 2000 TTAB LEXIS 577, at *24-25 (noting that while opposer’s channels of trade were limited to its common law uses, there was no restriction in applicant’s identification on the channels of trade and therefore applicant’s goods were deemed to be sold in all channels of trade appropriate for such goods). Accordingly, we find that Applicant’s unrestricted jewelry goods and services are available in the same channels of trade as Opposer’s jewelry goods and services. 49 28 TTABVUE 14.
Opposition No. 91280069. - 31 - We find the parties’ channels of trade and classes of purchasers overlap, and this also weighs in favor of a likelihood of confusion. 4. Other Factors Not Determinative Opposer also submitted evidence and argument on the strength of its mark, and actual confusion. As noted, Applicant has not briefed likelihood of confusion, contending merely that Opposer is unable to prove its priority of use. In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 1341-1342 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”). Here, the record shows the parties’ MYKA marks are legally identical, the parties’ jewelry goods and services are identical in part, and travel in overlapping channels of trade to overlapping classes of purchasers. We need no more to find a likelihood of confusion. To be clear, actual confusion is not required to find a likelihood of confusion, and even weak marks merit protection. See Herbko, 308 F.3d at 1165 (“[A] showing of actual confusion is not necessary to establish a likelihood of confusion.”); In re Max Cap, Group Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *12 (“[E]ven suggestive or weak marks are entitled to protection from the use of a very similar mark for legally identical services.”). Therefore, even if we found that Opposer’s evidence on the
Opposition No. 91280069. - 32 - strength of its mark and actual confusion did not weigh in favor of likelihood of confusion, it would not change the outcome here. Based on the identity of marks and goods and services, and the overlap in the channels of trade and classes of purchasers, we find Applicant’s mark MYKA for jewelry goods and services is likely to cause confusion with Opposer’s prior common law mark MYKA for jewelry goods and services. DECISION The opposition is sustained as to both Classes 14 and 35.
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
This Opinion Is Not a Precedent of the TTAB Mailed: March 3, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board Myka Designs Inc. v. TGEcommerce Kft. Opposition No. 91280069 Saul Acherman and John Marh of Jafari Law Group for Myka Designs Inc. Jonathan Agmon of Agmon Law, P.C. for TGEcommerce Kft. Before Pologeorgis, Dunn, and Allard, Administrative Trademark Judges. Opinion by Dunn, Administrative Trademark Judge: TGEcommerce Kft. (Applicant), a limited lability company of Hungary, seeks registration on the Principal Register of the mark MYKA (in standard characters) for: Jewelry for sale in online stores; personalized and customizable jewelry for sale in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry; leather jewelry and accessory boxes; jewelry plated with precious metals; key chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not of precious metal; cufflinks; watches; wrist watches; watch bands and straps; watches and jewelry; watches and straps for watches; earrings; ankle bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry; diamond jewelry, in International Class 14, and Opposition No. 91280069. - 2 - On-line retail store services featuring jewelry, in International Class 35.1 Myka Designs Inc. (Opposer), a corporation of Canada, filed a notice of opposition2 to registration of Applicant’s mark, which alleges likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s previously used mark MYKA, the subject of common law use and a pending application3 for: Artificial gemstones; Boxes for timepieces; Charms for key rings or key chains; Gemstones; Imitation jewellery; Imitation pearls; Jewellery; Jewellery boxes; Key chains; Key rings; Ornaments of precious metal in the nature of jewelry; Pearls; Precious metals; Statues of precious metal and their alloys; Timepieces, in International Class 14; and Retail store services featuring luggage, jewellery, clothes, art materials, in International Class 35. 1 Application Serial No. 90692533 filed May 5, 2021 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce, and subsequently amended to claim, in both classes, first use anywhere since at least as early as July 11, 2021 and use in commerce since at least as early as August 3, 2021. References to the application are to the downloadable .pdf version of documents available from the USPTO’s TSDR (Trademark Status and Document Retrieval) database. The TTABVUE citations refer to the Board’s electronic docket, with the first number referring to the docket entry and the second number, if applicable, referring to the page within the entry. 2 1 TTABVUE. 3 Application Serial No. 97036911 filed September 21, 2021 also includes goods in International Class 18 and 25, and additional services in International Class 35. While all four classes are listed in the ESTTA cover sheet for the notice of opposition, the attached allegations assert a likelihood of confusion with the “jewellry-related” goods and services of International Class 14 and 35 listed above (1 TTABVUE 10, 17). With respect to International Class 18, Applicant alleges a bona fide intention to use the mark in commerce. With respect to International Class 14, 25, and 35, Applicant claims dates of first use anywhere since at least as early as 1988 and use in commerce since at least as early as 1993. Opposition No. 91280069. - 3 - Applicant’s answer admits Opposer offers jewelry online to customers in Canada and that the subject application was cited against Opposer, but otherwise denies the salient allegations in the notice of opposition.4 On February 1, 2024, the parties filed a joint stipulation, subsequently approved by the Board, that neither party will introduce into evidence a document that (1) was not produced in discovery, provided that the requesting party did not already have the document, and that the document is not publicly freely available and (2) has been redacted, except for information related to accounts or phone numbers of the parties.5 The case is fully briefed. We sustain the opposition. I. THE RECORD The record includes the pleadings; the previously mentioned stipulation; the submissions of the parties during their respective trial periods; and pursuant to Trademark Rule 2.122(b), 37 C.F.R. §2.122(b), the file history of the opposed application. Although we do not list its contents, the entire record has been carefully considered, and relevant evidence is discussed throughout this opinion. See Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (“We have held ‘on multiple occasions that failure to explicitly discuss every issue or every piece of evidence does not alone establish that the tribunal did not consider it.’”) (citation and 4 4 TTABVUE 3, 5, admissions at Pars. 6, 13. 5 21 TTABVUE (stipulation) and 23 TTABVUE (Board approval). Opposition No. 91280069. - 4 - internal quotation marks omitted); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite all of the evidence it considered does not mean the evidence was not, in fact, reviewed.”) (citation omitted). After Opposer’s rebuttal testimony was submitted, Applicant filed a motion to strike it in part on various grounds.6 With respect to the procedural objection to documents produced by Applicant during discovery (Exs. 48-1 and 48-2), the Board granted the motion to strike because those documents were not subject to submission via notice of reliance and had not been otherwise authenticated.7 We have given no consideration to the stricken documents. In an appendix to its brief, Applicant renewed several substantive objections to Opposer’s rebuttal evidence and raised several new objections based on lack of foundation or authentication, and violation of the stipulation against submission of redacted documents not related to accounts or phone numbers of the parties.8 We agree with Opposer that the new objections raising curable defects are untimely and have been waived.9 Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *13 (“Finally, we overrule Applicant’s objections to the lack of foundation for Opposer’s Internet materials in Exhibit 3 to the Sabhnani Declaration because Applicant’s objection is a procedural one that was waived when Applicant did not timely move to strike the pertinent portion of the Sabhnani Declaration following 6 44 TTABVUE. 7 50 TTABVUE 6-8. 8 58 TTABVUE 45-59. 9 59 TTABVUE 38-39. Opposition No. 91280069. - 5 - its receipt.”). Because the stipulation is not a blanket prohibition against redaction, the mere presence of redaction in the rebuttal exhibits does not establish non-compliance with the stipulation. Applicant does not explain how the redaction is improper and we decline to guess.10 We need not address Opposer’s argument that the redaction was proper; Applicant failed, as movant, to support its motion.11 Applicant otherwise moves to strike rebuttal evidence as hearsay, irrelevant, and beyond the scope of proper rebuttal because it is cumulative, and repetitive of evidence submitted during Opposer’s case in chief.12 While we prefer reference to the original record, the objection as to the cumulative evidence is denied; we find the evidence responsive to points raised in Applicant’s brief and so it serves as proper rebuttal. With respect to the remaining objections, none are outcome determinative and concern the weight the documents and testimony should be given rather than their admissibility. The Board is capable of weighing the relevance and strength or weakness of the objected-to testimony and exhibits in this specific case, including any inherent limitations, and this precludes the need to strike that evidence. Norris v. PAVE: Promoting Awareness, Victim Empowerment, No. 91234909, 2019 TTAB LEXIS 345, at *4. As a result, we choose not to make specific rulings on each and 10 58 TTABVUE 11 59 TTABVUE 36-37. 12 58 TTABVUE 45-46. Opposition No. 91280069. - 6 - every objection. As necessary and appropriate, we point out in this decision any limitations on the evidence. See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No. 92050879, 2013 TTAB LEXIS 347, at *13-14, aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014). II. APPLICANT’S MOTION TO AMEND Embedded in Applicant’s trial brief is a contingent motion to amend the subject application’s goods and services. Applicant moves:13 Accordingly, if the Board finds that Applicant’s Application is not entitled to registration given that certain specific International Class 014 goods are substantially identical, Applicant requests the Board to allow it time in which to file a motion to amend the application to conform to the finding of the Board; and in the alternative, requests the Board’s consent for Applicant to amend Applicant’s Specification of Goods International Class 014 deleting Applicant’s Specification of Goods in International Class except the item “personalized and customizable jewelry for sale in online stores” and amend its International Class 035 Specification of Services from “On-line retail store services featuring jewelry” to “On-line retail store services featuring personalized and customized jewelry”. In the alternative, Applicant requests the Board to make use of its power to make such restrictions as it may deem necessary to the goods or services identified in the Application. The motion does not contain Opposer’s express or implied consent to the proposed amendment nor does it indicate any attempt by Applicant to obtain such consent. Trademark Rule 2.133(a), 37 CFR 2.133(a) provides that “[a]n application subject to an opposition may not be amended in substance ... except with the consent of the other party or parties and the approval of the Trademark Trial and Appeal Board, or upon motion granted by the Board.” In the absence of consent, a motion to amend an application “should be made prior to trial to give the opposer fair notice.” City of 13 58 TTABVUE 39. Opposition No. 91280069. - 7 - London Distillery, Ltd. v. Hayman Grp. Ltd., No. 91235280, 2020 TTAB LEXIS 501, at *40. Accord Pers. Data Sys. v. Parameter Driven Software., 1991 TTAB LEXIS 26, at *6-7 (“That is to say, the Board will exercise its discretion under Trademark Rule 2.133(b) only where the petitioner or opposer has been put on notice during the trial period that the Board will be considering the issue of confusion with respect to a recitation of goods or services narrower in scope than that which was shown in the registration or application at the commencement of the proceeding.”). Here, the trial is over, and Opposer submitted its brief arguing why its evidence shows a likelihood of confusion between its MYKA mark for jewelry and Applicant’s mark for the goods and services described in the application. The issue of likelihood of confusion with goods and services narrower than those in the application has not been tried. “To allow Applicant to delete [goods and services] from the application at this late date is unfair to Opposer.” Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *12-13. Applicant’s motion to amend the subject application is denied as untimely. III. ENTITLEMENT TO A STATUTORY CAUSE OF ACTION Entitlement to a statutory cause of action is a requirement that must be proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014)). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute, and (ii) proximate causation. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020). Opposition No. 91280069. - 8 - 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 of a mark demonstrates damage proximately caused by registration of the mark. Id. Here, Opposer submitted a copy of the Office Action citing the potential conflict between the MYKA mark in Opposer’s pending Application Serial No. 97036911 and Applicant’s MYKA mark.14 See Australian Therapeutic, 965 F.3d at 1375 (“A [plaintiff] may demonstrate a real interest and reasonable belief of damage where the [plaintiff] has filed a trademark application that is refused registration based on a likelihood of confusion with the mark subject to [opposition].”); Major League Soccer, L.L.C. v. F.C. Internazionale Milano S.p.A., No. 91247160, 2020 TTAB LEXIS 502, at *17 (“Opposer pleads ownership of several applications for marks containing the term INTER which have been refused registration based on the involved application and these pleaded facts help show Opposer is statutorily entitled to bring this opposition”). As set forth above, Applicant’s answer admits its application was cited as a bar to Opposer’s application.15 Opposer has established, by a preponderance of the evidence, its entitlement to bring the likelihood of confusion claim. 14 26 TTABVUE 38-43, at 42. 15 4 TTABVUE 5. Opposition No. 91280069. - 9 - IV. LIKELIHOOD OF CONFUSION CLAIM Under Section 2(d) of the Trademark Act, a mark may not be registered if it “consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion ….” 15 U.S.C. § 1052(d). As the plaintiff in this proceeding, Opposer bears the burden of proof. Bose Corp. v. QSC Audio Prods., 293 F.3d 1367, 1370 (Fed. Cir. 2002). A. Priority Priority under Trademark Section 2(d) requires either a registration or “a mark or trade name previously used.” 15 U.S.C. 1052(d). “The party who first uses a mark in commerce is said to have priority over other users.” Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363, 1369 (Fed. Cir. 2025) quoting Hana Fin., Inc. v. Hana Bank, 574 U.S. 418, 419 (2015). In a case involving common law rights, “the decision as to priority is made in accordance with the preponderance of the evidence.” Hydro- Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d 1470, 1472 (Fed. Cir. 1987). Because Applicant may rely on the filing date of its subject application to establish the applied-for mark’s constructive date of first use, and Applicant does not contend that it is entitled to an earlier date, Opposer must establish priority earlier than Applicant’s May 5, 2021 filing date.16 See Trademark Act Section 7(c), 15 U.S.C. 16 Applicant’s response to a request for admission (29 TTABVUE 5) admits that its mark “was first used in commerce no earlier than August 3, 2021,” the same date alleged in its amendment to allege use. Opposition No. 91280069. - 10 - § 1057(c) (filing an application constitutes constructive use of the mark conferring a right of priority contingent upon registration); Syngenta Crop Protection, Inc. v. Bio- Chek, LLC, Opp. No. 91175091, 2009 TTAB LEXIS 70, at *18. “To establish priority, the [plaintiff] must show proprietary rights in the mark that produce a likelihood of confusion. These proprietary rights may arise from a prior registration, prior trademark or service mark use, prior use as a trade name, prior use analogous to trademark or service mark use, or any other use sufficient to establish proprietary rights.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 1162 (Fed. Cir. 2002) (citation omitted). Opposer has not alleged use analogous to trademark use so we focus on actual use. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS 328, at *39 (“Reliance on priority through analogous use must be pleaded.”). In support of its common law priority, Opposer Myka Designs submitted the testimony declaration of Michael Bremer, Opposer’s founding member and President, averring that Opposer began as a family business in Canada comprising Bremer and his wife Maja Bremer, a jewelry designer; that Bremer and his wife launched their first jewelry collection using the MYKA mark in 1987 as a part-time business; in 1991, Bremer and his wife devoted themselves full-time to the business and had their first professional product launch in Canada; that in 1993, Bremer and his wife had their first sales to the United States; that since 1993 the mark MYKA has been continuously used on the goods themselves and on product packaging in U.S. commerce; that in 1993 Bremer and his wife incorporated the business in Canada as Opposition No. 91280069. - 11 - Myka Designs, Inc. and assigned “any and all rights in the MYKA trademarks” to the corporation; that the mark MYKA has been continuously used on jewelry for sale in online stores; and the mark MYKA also is used on displays at trade shows, including in the United States; on marketing materials, on social media and since 2004 on Opposer’s e-commerce website mykadesigns.com.17 The testimony declaration is supported by invoices to U.S. customers for jewelry dated 1993, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2005, 2006, 2007, 2008, 2009, 2010, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022 and 2023;18 photographs of the goods and product displays bearing the mark;19 photographs of packaging bearing the mark;20 sample advertisements for MYKA jewelry distributed in the United States;21 sample website and social media pages of Opposer advertising MYKA jewelry;22 customer lists;23 and summaries of sales and marketing expenditures, including annual U.S. sales from 2016 to 2023.24 17 28 TTABVUE 3-7. 18 28 TTABVUE 5, 8; 24 TTABVUE 4-214. 19 28 TTABVUE 5, 7, 11, 27, 30-31, 33-36, 38, 57-64, 92-95. 20 28 TTABVUE 7; 25-26, 29, 32, 37, 39-44, 47-56. 21 28 TTABVUE 9, 11; 67-77, 80-90. 22 28 TTABVUE 9-10; 98-109, 119-148. 23 28 TTABVUE 10; 24 TTABVUE 225-232. 24 28 TTABVUE 15; 24 TTABVUE 234-236. Opposition No. 91280069. - 12 - Applicant contends that this evidence is insufficient to establish priority because Opposer is not the owner of the MYKA mark and because Opposer has not shown prior use of the term MYKA.25 We find neither of these arguments persuasive. Applicant’s non-ownership argument is based on Opposer’s alleged statement in its application that Opposer did not devise the mark, which Applicant describes as a statement that limits Opposer’s claim, and Opposer’s testimony that Bremer and his wife Maja, co-founders of Opposer, first used the MYKA mark, and later assigned the mark to Opposer, the corporation they created.26 We find the first point to be irrelevant to ownership of the MYKA mark. Opposer’s application includes the “miscellaneous statement:”27 THE WORDING “MYKA” WAS THOUGHT OF BY A FAMILY MEMBER OVER 30 YEARS AGO AND IS A COMBINATION OF OWNERS NAMES MAJA & MICHAEL = MYKA “It is axiomatic in trademark law that ownership of a mark is predicated on priority of use in commerce.” Lyons v. Am. Coll. of Veterinary Sports Med. & Rehab., 859 F.3d 1023, 1027 (Fed. Cir. 2017), cert. denied, 1583 U.S. 933 (2017). There is no dispute that Bremer and his wife first used the MYKA mark, and Opposer currently uses the MYKA mark. The statement in the application regarding the origin of the term MYKA is not a restriction of Opposer’s claim of ownership, does not allege that the person who coined the term ever used or intended to use the term on jewelry or 25 58 TTABVUE 22-39. Because we have no jurisdiction over Opposer’s pending later-filed application, we will not address arguments (58 TTABVUE 22, 25-27) about its registrability. Home Juice Co. v. Runglin Cos., No. 92014533, 1986 TTAB LEXIS 22, at *5 n.7. 26 58 TTABVUE 23, and n.81. 27 26 TTABVUE 129. Opposition No. 91280069. - 13 - retail jewelry services, and so has nothing to do with ownership of the mark. Applicant’s citation28 to legal guidance on admissions in applications and ambiguity in descriptions of the mark have no bearing here. “Neither a formal assignment nor recordation of an assignment in the Patent and Trademark Office is necessary to pass title or ownership to common law or statutory trademark rights.” Huang v. Tzu Wei Chen Food Co. Ltd., 849 F.2d 1458, 1460 (Fed. Cir. 1988) quoting Am. Mfg. Co. v. Phase Indus., No. 92010519, 1976 TTAB LEXIS 98; Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1132 (CCPA 1978) (“[A]n oral assignment [of common law rights] can be proven by either direct or circumstantial evidence.”). Accord J. Thomas McCarthy, 2 McCarthy on Trademarks and Unfair Competition, § 18:4 (5th ed., December 2025 update) (“McCarthy”) (“An assignment in writing is not necessary to pass common law rights in a trademark. If there is no documentary evidence of an assignment, it may be proven by the clear and uncontradicted oral testimony of a person in a position to have actual knowledge.”). In view of this clear authority, we disagree with Applicant’s contention that Opposer has failed to show its ownership of the mark because the record lacks a written assignment.29 Applicant does not allege that anyone but Opposer uses the mark, or has done so since Opposer’s formation in 1993. Bremer’s testimony regarding he and his wife’s formation of Opposer, and the assignment of the mark from the family business created by them to the corporation they created, was clear 28 58 TTABVUE 23 and n. 81. 29 58 TTABVUE 23-24. Opposition No. 91280069. - 14 - and convincing, and is sufficient to show that Opposer has been the owner of the mark since 1993. With respect to the argument that Opposer has not shown prior use of the term MYKA, Applicant contends:30 Opposer’s evidence fails to establish continuous use of MYKA as a standalone word mark. The invoices and specimens do not link specific sales to the word mark MYKA, and most records show only the use of the composite or design marks. It is unclear which of Opposer’s products were sold in US commerce after 2004. For example, 28 TTABVUE 34 shows what appears to be a chain with the stylized MYKA mark thereon with the serial number B2082RM. However, none of the invoices provided by Opposer reflect this serial number and therefore there is no evidence that this product was sold in US commerce. As a preliminary matter, we point out that Opposer’s priority does not depend on its prior use of the mark being continuous, so long as the use has not been abandoned. See W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1128 (Fed. Cir. 1994) (Section 2(d) “does not speak of ‘continuous use,’ but rather of whether the mark or trade name has been ‘previously used in the United States by another and not abandoned.’”). Here, Applicant points to no defect or inconsistency in Opposer’s testimony and exhibits regarding its use of the MYKA mark which would warrant the additional documentation (such as “invoices and specimens [that] link specific sales to the word mark MYKA”) that Applicant suggests is necessary. As described earlier, Opposer submitted photos of jewelry bearing the MYKA mark directly or on packaging or labels, testimony as to how and when and to whom the MYKA jewelry was advertised and sold, a range of invoices over decades 30 58 TTABVUE 27. Opposition No. 91280069. - 15 - corroborating that the MYKA jewelry has been sold to U.S. customers since 1993, and annual sales summaries. Bremer testified that since 1993 the mark MYKA has been continuously used on the goods themselves. Specifically, he averred:31 As early as 1993, the jewelry design products we were selling and shipping throughout the United States included the MYKA Trademarks; specifically, our jewelry products would be branded with the term MYKA, by engraving the mark MYKA on the molds themselves, so that each jewelry product would be physically cast with MYKA on the product itself. The record includes examples of the mark on the goods as shown below: 32 31 28 TTABVUE 5. 32 28 TTABVUE 30. Opposition No. 91280069. - 16 - 33 34 Bremer also testified: As early as 1993, Myka [Designs] has and continues to use labels affixed to product packaging that display the MYKA Trademarks. Further, our product packaging itself has since 1993 [] continued to display the MYKA mark. The record includes examples of the mark on the labels and packaging for the goods as shown below: 33 28 TTABVUE 34. 34 28 TTABVUE 59. Opposition No. 91280069 Ilyka OUVER, CANN 35 Myka MYKA 36 35 28 TTABVUE 32. 36 28 TTABVUE 64. - 17 - Opposition No. 91280069. - 18 - With respect to its services, Bremer testified:37 [A]t least as early as 2004 Myka Designs has been and continues to offer on- line retail store services featuring jewelry. The record includes exemplary excerpts from Opposer’s website advertising the retail jewelry services under the MYKA mark. 37 28 TTABVUE 6. Opposition No. 91280069. - 19 - 38 39 The evidence is sufficient to demonstrate Opposer’s use of the mark MYKA in commerce on jewelry since 1993 and retail jewelry store services since 2004. Oral 38 28 TTABVUE 107. 39 28 TTABVUE 106. Opposition No. 91280069. - 20 - testimony, if sufficiently probative, is normally satisfactory to establish priority of use. Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 130 (CCPA 1965). Accord Araujo v. Framboise Holdings Inc., 99 F.4th 1377, 1381 (Fed. Cir. 2024) (“When presented with the evidence provided in the Extrakt declaration and nothing to contradict it, a reasonable mind could conclude that Framboise had established its priority date by a preponderance of the evidence.”). Here, as shown by the representative examples above, Opposer offered ample documentary corroboration of the testimony showing use of the mark MYKA on jewelry, the labels directly associated with the jewelry, and advertising Opposer’s online retail jewelry services. Applicant’s response to this evidence does not dispute Opposer’s use of the mark MYKA on jewelry since 1993 or its online store since 2004. Instead, Applicant contends that Opposer’s different displays of the MYKA mark over the years are equivalent to different marks, and because Opposer has failed to meet the strict requirements for tacking, has not shown priority of use.40 Applicant argues:41 Opposer’s Prior Marks comprise (i) a graphical design featuring a circle, and a highly stylized letter M [ ]; (ii) a design featuring a circle and a highly stylized rendering of what appears to be the word Myka [ ]; (iii) the design in (i) with the word MYKA and below the words “BY MAYA AND MICHAEL BREMER” [. ]. Two other uses appear in the evidence: (iv) found online - - which Opposer did not plead 40 58 TTABVUE 15, 27-28, 31-39. 41 58 TTABVUE 27. To make the argument easier to follow, we added the mark described in brackets following each description. Opposition No. 91280069. - 21 - was used on its goods, and (v) its company name MYKA DESIGNS INC. which appears on its invoices, nearly always next to one of Opposer’s Prior Marks. To these uses of the mark we would add the use of the MYKA mark in block lettering as shown above and reproduced here: . The doctrine of tacking allows “trademark owners [], in limited circumstances, [to] ‘clothe a new mark with the priority position of an older mark.” Bertini v. Apple Inc., 63 F.4th 1373, 1377 (Fed. Cir. 2023) quoting Hana Fin., Inc., 574 U.S. at 419-20. Without tacking “a trademark owner’s priority in his mark would be reduced each time he made the slightest alteration to the mark, which would discourage him from altering the mark in response to changing consumer preferences, evolving aesthetic developments, or new advertising and marketing styles.” Id. (citation omitted). Tacking is permitted when the new and revised mark are legal equivalents, and “‘create the same, continuing commercial impression’ so that consumers ‘consider both as the same mark.’” Id. (citation omitted). This opposition differs from the usual tacking case because, as shown by the testimony and exhibits, Opposer’s “original” use of the MYKA mark on its jewelry and retail jewelry services has remained the same. As set forth above, Applicant cites as the “revised” mark the uses of the MYKA mark with the separate stylized M design or the additional informative wording as seen on Opposer’s website, advertising and invoices. However, because the original mark remains in use, the question of whether the revised mark creates the same continuing commercial impression to the original mark does not arise. To put it another way, Applicant has added to its uses of the Opposition No. 91280069. - 22 - MYKA in certain contexts while continuing its use of the MYKA mark on the jewelry goods and services. Applicant also contends that the differences between the MYKA marks as used in two different fonts and with the oval background design, as set forth below and used on the jewelry goods and services, result in the marks not having the same continuing commercial impression, and so Opposer cannot establish prior use. We cannot agree. The use of a common geometric shape as a background generally is not considered a distinctive element of a mark. See In re Dixie Rests. Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (“Neither the design element nor the generic term ‘café’ offers sufficient distinctiveness to create a different commercial impression. Indeed, as the board found, the design is an ordinary geometric shape that serves as a background for the word mark.”); In re Kysela Pere et Fils Ltd., No. 77686637, 2011 TTAB 70, at *19 (“And certainly the oval designs in the marks are merely background or ‘carrier’ elements, and do not make a strong commercial impression.”). Accord McCarthy, at 7:29 (“The rationale [for the rule that common geometric shapes are regarded as not being inherently distinctive] is that such designs have been so widely and commonly used as mere decorative graphic elements that the origin-indicating ability of such designs has been diminished.”). In the same way, the font, or stylization, used to display a literal term generally is not considered a distinctive part of the mark. See Bos. Red Sox Baseball Club LP Opposition No. 91280069. - 23 - v. Sherman, No. 91172268, 2008 TTAB LEXIS 67, at *33 (“It has frequently been stated that it is the word portion of marks, rather than the particular display of the words, that is likely to have a greater impact on purchasers and be remembered by them.”); In re 1st USA Realty Professionals Inc., No. 78553715, 2007 TTAB LEXIS 73, at *15 (“The registered mark is for the words FIRST USA in a slightly stylized typestyle. However, the stylization is so minimal that it does not make a real commercial impression. Because of this, consumers will view the mark as merely the words FIRST USA.”). Accord McCarthy at 17:26 (“Trademark rights inure in the basic commercial impression created by a mark, not in any particular format or style.”). We find that Opposer has displayed its MYKA mark as both and , sometimes at the same time, and has done so since 1993 with the goods and 2004 with the services. Because Opposer’s use has been sufficient for priority, we need not consider whether its use of its tradename MYKA DESIGNS also functions as a trademark. However, we reproduce an excerpt from Applicant’s brief offered to demonstrate mere trade name use:42 42 58 TTABVUE 30. Opposition No. 91280069. - 24 - This use by Opposer over three consecutive years shows use of both the cursive and block letter displays of the MYKA mark. Similarly, Applicant offered webpages to show that Opposer uses a modified mark, but some of the pages in fact show both: Opposition No. 91280069. - 25 - 43 In sum, we find that Opposer’s testimony and supporting documents establish Opposer’s use of the MYKA mark on jewelry since 1993 and in connection with retail jewelry services since 2004. We reject Applicant’s contentions that Opposer does not own the mark or that its varied displays of the MYKA mark are insufficient for priority. In considering the testimony and evidence of priority, “we look at the evidence as a whole, as if each piece of evidence were part of a puzzle which when fitted together, establishes prior use.” See W. Fla. Florida Seafood Inc., 31 F.3d at 1125-26. 43 51 TTABVUE 54. Opposition No. 91280069. - 26 - Opposer has established, by a preponderance of the evidence, prior use of its common law MYKA mark for jewelry goods and services necessary for its likelihood of confusion claim. B. Likelihood Of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all the probative facts in evidence relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (DuPont). “Not all of the DuPont factors are relevant to every case,” and we consider each DuPont factor for which there are arguments and evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018). As noted earlier, Opposer bears the burden of proof. Bose Corp., 293 F.3d at 1370. In this case, that burden is easier to meet in view of Applicant’s decision to argue only that Opposer cannot establish priority of use. More specifically, Applicant’s brief lists the “statement of the issues” as whether Opposer is the owner of the MYKA mark and whether Opposer proved priority, argues only those issues, and concludes that the opposition should be dismissed because Opposer lacks ownership of the mark and failed to prove its priority.44 Accordingly, we need only briefly address whether Opposer has demonstrated a likelihood of confusion as Applicant appears to have conceded the issue. 44 58 TTABVUE 3 (table of contents), 7 (statement of the issues), 40 (conclusion). Opposition No. 91280069. - 27 - 1. Similarity or Dissimilarity of the Marks The first DuPont factor concerns “[t]he similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” DuPont, 476 F.2d at 1361. As set forth above, Opposer has established prior common law rights in the term MYKA. This is the identical literal term that Applicant seeks to register. Moreover, Applicant seeks registration in standard character form, meaning it would be free to adopt Opposer’s stylization, making the marks identical except for the absence of the oval background. See In re Viterra Inc., 671 F.3d 1358, 1363-64 (Fed. Cir. 2012) (“First, to the extent the Board simply held that a standard character mark is not limited to any particular font, size, style, or color, it is entirely consistent with our case law, the relevant regulations, and the TMEP. Indeed, we previously have rejected an applicant’s argument that its standard character mark was distinct from a mark registered in stylized lettering with a design.”) (internal citation omitted). Because the oval background is not a distinctive feature, we find Opposer’s common law MYKA mark creates the same commercial impression as, and is legally identical to Applicant’s MYKA mark. This factor weighs heavily in favor of finding confusion is likely. 2. Similarity or Dissimilarity of the Goods and Services We turn next to DuPont factor two regarding the similarity or dissimilarity of the parties’ respective goods and services. DuPont, 476 F.2d at 1361. Our determination must be based on the identification of goods and services in the subject application. See Stone Lion Cap. Parts., LP v. Lion Cap. LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014) Opposition No. 91280069. - 28 - (“[T]he services recited in the application determine the scope of the post-grant benefit of registration.”). As set forth earlier, Applicant seeks registration for: Jewelry for sale in online stores; personalized and customizable jewelry for sale in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry; leather jewelry and accessory boxes; jewelry plated with precious metals; key chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not of precious metal; cufflinks; watches; wrist watches; watch bands and straps; watches and jewelry; watches and straps for watches; earrings; ankle bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry; diamond jewelry, in International Class 14, and . On-line retail store services featuring jewelry, in International Class 35. “Because each class in Applicant’s multi-class application is, in effect, a separate application, we consider each class separately, and determine whether Opposer has shown a likelihood of confusion with respect to each.” North Face Apparel Corp. v. Sanyang Indus. Co., No. 91187593, 2015 TTAB LEXIS 328, at *32. However, there is no need to establish a likelihood of confusion as to each good or service in each class; likely confusion as to even one good or service identified in each class in the application is sufficient to establish a likelihood of confusion as to the entire class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981). Opposer’s goods offered under the MYKA mark were addressed in Bremer’s testimony:45 Myka Designs’ products offered and sold under the MYKA Trademarks include jewelry, bracelets, necklaces, chains, rings, leather jewelry and accessory boxes, jewelry plated with precious metals, key chains for use as jewelry, jewelry charms, clasps for jewelry, jewelry cases, cufflinks, watches and straps for watches, earrings, ankle bracelets, artificial gemstones, boxes for timepieces, charms for key rings or key chains, gemstones, imitation jewelry, imitation pearls, jewelry, jewelry boxes, key chains, key rings, ornaments of 45 28 TTABVUE 6. Opposition No. 91280069. - 29 - precious metal in the nature of jewelry, pearls, precious metals, statues of precious metal and their alloys, and timepieces. Based on this uncontradicted testimony, we find the goods are identical in part.46 With respect to the services, as set forth above, Bremer testified that “as early as 2004 Myka Designs has been and continues to offer on-line retail store services featuring jewelry,”47 and these services are identical to those in the opposed application. Based on this uncontradicted testimony, we find the services are identical. Accordingly, the second DuPont factor also strongly favors a finding of likelihood of confusion. 3. Similarity or Dissimilarity of the Channels of Trade and Classes of Purchasers The third DuPont factor assesses “the similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As with the similarity or dissimilarity goods and services, our determination must be based on the identification of goods and services in the subject application. See Stone Lion, 746 F.3d at 1324. With respect to Opposer’s channels of trade for its common law mark, Bremer testified:48 Since 1993, Myka Designs has and continued to hire sales representatives that assist Myka Designs with sales specifically in the United States; this includes Fashion/Jewelry & Gift Industry Sales Representatives … working with retail store owners to market MYKA, write orders, as well as attend instore 46 Applicant explicitly admits that its goods overlap with Opposer’s goods in part, stating “In relation to International Class 014, Applicant agrees that the following items overlap – jewelry, charms, key chains.” 58 TTABVUE 39. 47 28 TTABVUE 6. 48 28 TTABVUE 6, 10. Opposition No. 91280069. - 30 - marketing events to promote the brand. Myka Designs also contracts with independent retail stores to sell Myka Designs Jewelry Products. Located across the USA, each store that carries our brand is marketing the MYKA Trademarks, as they have a constant flow of customers passing through. … at least as early as 2004 Myka Designs has been and continues to offer on-line retail store services featuring jewelry. With respect to Opposer’s classes of purchasers for its common law mark, Bremer testified:49 Myka Designs Jewelry Products under the MYKA Trademarks are targeted towards and purchased by consumers of all ages and demographics. In the application, Applicant’s identification of goods and services does not include any restriction as to trade channels or classes of purchasers, and we must presume that its goods and services move in all normal and usual channels of trade and methods of distribution for those goods and services and are available for purchase by all the usual consumers. See Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990); Hard Rock Cafe Int’l (USA), No. 91101304, 2000 TTAB LEXIS 577, at *24-25 (noting that while opposer’s channels of trade were limited to its common law uses, there was no restriction in applicant’s identification on the channels of trade and therefore applicant’s goods were deemed to be sold in all channels of trade appropriate for such goods). Accordingly, we find that Applicant’s unrestricted jewelry goods and services are available in the same channels of trade as Opposer’s jewelry goods and services. 49 28 TTABVUE 14. Opposition No. 91280069. - 31 - We find the parties’ channels of trade and classes of purchasers overlap, and this also weighs in favor of a likelihood of confusion. 4. Other Factors Not Determinative Opposer also submitted evidence and argument on the strength of its mark, and actual confusion. As noted, Applicant has not briefed likelihood of confusion, contending merely that Opposer is unable to prove its priority of use. In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 1341-1342 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”). Here, the record shows the parties’ MYKA marks are legally identical, the parties’ jewelry goods and services are identical in part, and travel in overlapping channels of trade to overlapping classes of purchasers. We need no more to find a likelihood of confusion. To be clear, actual confusion is not required to find a likelihood of confusion, and even weak marks merit protection. See Herbko, 308 F.3d at 1165 (“[A] showing of actual confusion is not necessary to establish a likelihood of confusion.”); In re Max Cap, Group Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *12 (“[E]ven suggestive or weak marks are entitled to protection from the use of a very similar mark for legally identical services.”). Therefore, even if we found that Opposer’s evidence on the Opposition No. 91280069. - 32 - strength of its mark and actual confusion did not weigh in favor of likelihood of confusion, it would not change the outcome here. Based on the identity of marks and goods and services, and the overlap in the channels of trade and classes of purchasers, we find Applicant’s mark MYKA for jewelry goods and services is likely to cause confusion with Opposer’s prior common law mark MYKA for jewelry goods and services. DECISION The opposition is sustained as to both Classes 14 and 35.
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