92084926•Camp Awesum, Inc. v. James M. O'Brien
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Mailed: March 6, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE ——— Trademark Trial and Appeal Board ——— Camp Awesum, Inc. v. James M. O’Brien ______ Cancellation No. 92084926 ______ Kyle M. Costello of Boyle Fredrickson S.C., for Camp Awesum, Inc.1 Omid E. Khalifeh of Omni Legal Group, for James M. O’Brien. ——— Before Larkin, English, and Lavache, Administrative Trademark Judges. Opinion by Lavache, Administrative Trademark Judge: 1 The signature block at the end of the petition to cancel identifies Mr. Costello as the “Attorney for Petitioner, Workshop Architects, Inc.” 1 TTABVUE 9. We assume this was inadvertent, as Mr. Costello is identified as the attorney for Camp Awesum, Inc. elsewhere in the petition and in subsequent submissions. Citations to the record refer to TTABVUE, the Board’s online docketing system. The number preceding “TTABVUE” corresponds to the docket entry number, and any numbers following “TTABVUE” refer to the page numbers of the docket entry where the cited materials appear. THIS OPINION IS NOT A PRECEDENT OF THE TTAB
Cancellation No. 92084926 2 Petitioner Camp Awesum, Inc., petitions to cancel Respondent James M. O’Brien’s registration on the Principal Register for the standard-character mark CAMP AWESOME for “child care services,” in International Class 43.2 On the ESTTA3 cover sheet for the petition, Petitioner identifies the ground for cancellation as misrepresentation of source under Trademark Act Section 14(3), 15 U.S.C. § 1064(3), specifically stating that “the registration is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used.”4 However, in the body of the petition, Petitioner presents allegations in support of a claim of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d).5 Specifically, Petitioner alleges, inter alia, prior common law use of the mark CAMP AWESUM for “providing camps for persons with intellectual or developmental disabilities services,” and claims that Respondent’s mark “so resembles Petitioner’s marks, as to be likely to cause confusion.”6 The petition also alleges that the USPTO refused Petitioner’s applications for registration of the standard-character mark CAMP AWESUM,7 and 2 Registration No. 4674797, issued on January 20, 2015; renewed. The registration includes a disclaimer of “CAMP.” 3 “ESTTA” refers to the Board’s Electronic System for Trademark Trials and Appeals. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 110.02 (2025). 4 Petition for Cancellation, 1 TTABVUE. 5 Id. at 3-9. Indeed, while the body of the petition to cancel does not specifically cite Section 2(d), it lists a single “count” of “likelihood of confusion.” Id. at 7. 6 Id. at 7-8. 7 Application Serial No. 97319611, filed on March 18, 2022, based on Petitioner’s allegation of use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming January 1, 2004, as the date of first use anywhere and June 1, 2004, as the date of first use in commerce. The application includes a disclaimer of “CAMP.”
Cancellation No. 92084926 3 composite mark ,8 both for “providing camps for persons with intellectual or developmental disabilities,” based on a likelihood of confusion with Respondent’s registered mark. Respondent’s answer denies most of the allegations in the petition for cancellation, but admits, in relevant part, that Petitioner filed the applications referenced above and that these applications were refused based on a likelihood of confusion with Respondent’s registration.9 The proceeding is fully briefed, and Respondent’s arguments reflect a presumption that Petitioner’s claims are (1) misrepresentation of source and (2) likelihood of confusion. We therefore address both claims. As explained below, Petitioner’s claim 8 Application Serial No. 97319825, filed on March 18, 2022, based on Petitioner’s allegation of use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming April 15, 2016, as both the date of first use anywhere and the date of first use in commerce. According to the mark description, “[t]he mark consists of the wording ‘CAMP’ appearing above the wording ‘AWESUM’, with the first letters of each aligned at the left. To the left of the wording appears a design of a stylized depiction of a body of water with trees along the shoreline and wavy lines across the sky. In the center of the design appears the outline of a five pointed star, which appears to be reflected in the representation of the body of water below.” Color is not claimed as a feature of the mark. The application includes a disclaimer of “CAMP.” 9 Respondent’s Answer, 4 TTABVUE 2-3. Respondent’s answer also includes a number of “affirmative defenses.” Id. at 6-7. Some of these are merely arguments against Petitioner’s likelihood-of-confusion claim and are not affirmative defenses at all. Id. The other asserted defenses include “laches, acquiescence, and estoppel,” waiver by Petitioner’s “acts and omissions,” and “unclean hands.” Id. Respondent did not argue any of these affirmative defenses in its brief and thus they are waived. See, e.g., Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013 TTAB LEXIS 347, at *5 n.6, aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014). Respondent’s answer also raises “fail[ure] to state a claim upon which relief can be granted” as an “affirmative defense,” 4 TTABVUE 6, but this “defense” is more accurately characterized “an assertion of the insufficiency of the pleading rather than a statement of a defense to the merits of a claim.” Tequila Cuadra S. de RL de CV v. Manufacturera de Botas Cuadra, S.A. de C.V., No. 91282327, 2025 TTAB LEXIS 207, at *2- 3. We discuss the sufficiency of Petitioner’s pleading of the misrepresentation-of-source claim later in this opinion.
Cancellation No. 92084926 4 based on likelihood of confusion is time-barred and thus we cannot consider it. We deny the petition as to the misrepresentation-of-source claim. I. The Record The record includes the pleadings, the submissions of the parties during their respective trial periods, and, by rule, Respondent’s involved registration file. See Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). Petitioner has also submitted copies of Application Serial Nos. 97319611 and 97319825, as well as selected Office actions refusing registration of the applied-for marks. Under the circumstances of this case, we find it unnecessary to specifically itemize the rest of the record here, but it has been reviewed and considered in its entirety.10 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.’” (quoting Novartis AG v. Torrent Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017))); 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.” (citing Plant Genetic Sys., N.V. v. Dekalb Genetics Corp., 315 F.3d 1335, 1343 (Fed. Cir. 2003))). 10 Respondent also filed a notice of deemed admissions, asserting that certain requests for admission should be deemed admitted because Petitioner did not timely respond to them and indicating Respondent’s intent to rely on these admissions. 18 TTABVUE 2-3. The purported deemed admissions, to the extent relevant, appear to relate to Petitioner’s putative likelihood-of-confusion claim. See id. at 13-15. As explained below, we do not reach the merits of this claim because it is time-barred and thus we need not consider or address the purported deemed admissions.
Cancellation No. 92084926 5 II. Petitioner’s Entitlement to a Statutory Cause of Action Establishing an entitlement to a statutory cause of action is a threshold requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). Thus, Petitioner, as plaintiff in this cancellation proceeding, must prove its entitlement to a statutory cause of action by a preponderance of the evidence. See, e.g., Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *8. To establish an entitlement to a statutory cause of action, Petitioner must demonstrate that it has: (1) an interest falling within the zone of interests protected by the statute, and (2) a reasonable belief in damage proximately caused by the registration of the mark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1367 (Fed. Cir. 2025) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-134 (2014)); Corcamore, 978 F.3d at 1304-07; see also Made in Nature, 2022 TTAB LEXIS 228, at *18. Here, the record shows that Petitioner’s Application Serial No. 97319611, seeking registration of the standard-character mark CAMP AWESUM for “providing camps for persons with intellectual or developmental disabilities,” was refused under Trademark Act Section 2(d) based on a likelihood of confusion with Respondent’s
Cancellation No. 92084926 6 registered mark.11 Respondent has admitted the same.12 Thus, Petitioner has a real interest in the proceeding and a reasonable belief that it would be damaged by the continued registration of Respondent’s mark, which establishes Petitioner’s entitlement to a statutory cause of action. See, e.g., Australian Therapeutic, 965 F.3d at 1375 (“A petitioner may demonstrate a real interest and reasonable belief of damage where the petitioner has filed a trademark application that is refused registration based on a likelihood of confusion with the mark subject to cancellation.”); see also Enbridge, Inc. v. Excelerate Energy LP, No. 91170364, 2009 TTAB LEXIS 642, at *21 n.10 (“If an opposer can show standing as to one ground, it has the right to assert any other ground as well.”). III. Likelihood of Confusion While Petitioner has established an entitlement to a statutory cause action generally, Petitioner may not bring a likelihood-of-confusion claim under Trademark Act Section 2(d) against Registration No. 4674797. The registration issued on the Principal Register on January 20, 2015, and thus it was more than nine years old when Petitioner filed its petition to cancel on April 12, 2024. Under Trademark Act Section 14, a registration that has existed for at least five years on the Principal Register may be cancelled only for a very limited set of potential grounds, including genericness, functionality, abandonment, fraud, and misrepresentation of source, the 11 See Petitioner’s First Notice of Reliance, 9 TTABVUE 15-20 (final Office action concerning Application Serial No. 97319611); Testimony Declaration, 14 TTABVUE 7 (declaration of Benjamin Lentini, Petitioner’s President, regarding filing and refusal of Application Serial No. 97319611). 12 Respondent’s Answer, 4 TTABVUE 3-4.
Cancellation No. 92084926 7 claim identified on the ESTTA cover sheet of Petitioner’s petition. See 15 U.S.C. § 1064(3). Likelihood of confusion, however, is not among these grounds, so a petition based on this ground must be filed within five years of the relevant registration’s issuance. See id.; Otto Int’l, Inc. v. Otto Kern GmbH, No. 92046167, 2007 TTAB LEXIS 62, at *3-4 (“It is well settled that the grounds on which a cancellation action may be brought under Section 14 of the Trademark Act are limited for a registration that has been in existence for five years; Section 2(d) is not one of these grounds.”); TBMP § 307.02(a) (“A petition to cancel a registration issued on the Principal Register under the Act of 1946, on a ground not specified in Trademark Act § 14(3), Trademark Act § 14(5), or Trademark Act § 14(6) . . . must be filed within five years from the date of the registration of the mark.”). Accordingly, Petitioner’s putative likelihood-of-conclusion claim is time-barred under Section 14(3) and we cannot consider it. IV. Misrepresentation of Source We turn now to Petitioner’s nominal misrepresentation-of-source claim under Trademark Act Section 14(3), which, unlike a likelihood-of-confusion claim, is not subject to a time limit on filing and therefore may be the basis for a petition to cancel a registration that is more than five years old. See 15 U.S.C. § 1064(3). Specifically, under Section 14(3), “[a] petition to cancel a registration of a mark . . . may . . . be filed . . . [a]t any time if the registered mark is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used.” Id.
Cancellation No. 92084926 8 “[T]he term misrepresentation of source . . . refers to situations where it is deliberately misrepresented by or with the consent of the registrant that goods and/or services originate from a manufacturer or other entity when in fact those goods and/or services originate from another party.” Osterreichischer Molkerei-und Kasereiverband Registriete GmbH v. Marks & Spencer Ltd., No. 92011916, 1979 TTAB LEXIS 59, at *3, quoted in Otto Int’l, 2007 TTAB LEXIS 62, at *6. Therefore, a misrepresentation-of-source claim goes beyond mere likelihood of confusion and requires pleaded facts reflecting the respondent’s “deliberate misrepresentation” of the source of the petitioner’s services; the respondent’s “blatant misuse of the mark” in a manner calculated to trade on the goodwill and reputation of the petitioner; or conduct amounting to the respondent’s “deliberate passing-off” of the petitioner’s services as those of the respondent. Otto Int’l, 2007 TTAB LEXIS 62, at *9; see also McDonnell Douglas Corp. v. Nat’l Data Corp., No. 92013998, 1985 TTAB LEXIS 144, at *11 (stating that a claim of misrepresentation of source “must be supported by allegations of blatant misuse of the mark by respondent in a manner calculated to trade on the goodwill and reputation of petitioner”); cf. Bayer Consumer Care AG v. Belmora LLC, No. 92047741, 2009 TTAB LEXIS 203, at *16-18 (finding misrepresentation of source claim sufficient based on allegations that respondent “copied petitioner’s mark, including its particular display, and virtually all elements of its packaging”); E.E. Dickinson Co. v. T.N. Dickinson Co., No. 92013668, 1984 TTAB LEXIS 213, at *6-7, 9 (finding misrepresentation of source adequately pleaded where petitioner alleged, inter alia, that respondent was using its marks on a bottle
Cancellation No. 92084926 9 similar to petitioner’s, with a label that included “colorable imitations” of petitioner’s marks). Here, the record is devoid of any such pleading, arguments, or evidence. In fact, after selecting the relevant Section 14(3) misrepresentation-of-source claim in the ESTTA petition form, Petitioner did not again refer to the claim in the body of the petition, let alone plead the elements of the claim. “[T]o properly allege misrepresentation of source, a party must do more than make a bald allegation in the language of the statute, as this does not give fair notice of the basis for petitioner’s claim.” Otto Int’l, 2007 TTAB LEXIS 62, at *8. Nor did Petitioner refer to the claim in its briefs.13 Instead, Petitioner’s arguments and evidence relate wholly to supporting a general likelihood-of-confusion claim. Specifically, Petitioner addresses priority of use, as well as various likelihood-of- confusion factors under In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973), including the similarity of the respective marks, services, and trade channels; the relevant consumers and purchasing conditions; and actual confusion.14 And, tellingly, Petitioner’s trial brief states that the “issues before the Board” are (1) 13 When the subject registration is more than five years old, the ESTTA Petition for Cancellation form allows the user to enter only those grounds for cancellation that are enumerated in Trademark Act Section 14(3). See USPTO ESTTA USER’S GUIDE 93, 95, https://estta.uspto.gov/estta12-usermanual.pdf. Thus, Petitioner would not have been able to file a petition to cancel specifying a likelihood-of-confusion claim. This may explain why the cover sheet of Petitioner’s petition specified the non-time-barred misrepresentation-of-source claim as the ground for cancellation, but Petitioner thereafter addressed only a likelihood-of- confusion claim. 14 See Petitioner’s Main Brief, 19 TTABVUE 16-22.
Cancellation No. 92084926 10 whether Petitioner has priority of use and (2) whether there is a likelihood of confusion between the parties’ marks.15 Because a misrepresentation-of-source claim is not time-limited under Section 14, it is especially important that the claim be sufficiently pleaded. But, here, we find that this is a case of a “Section 2(d) claim masquerading as a misrepresentation-of- source claim.” Bayer, 2009 TTAB LEXIS 203, at *17 (cleaned up). Thus, the misrepresentation-of-source claim was not sufficiently pleaded and we may deny the petition for that reason alone. Alternatively, putting aside the insufficiency of the pleading, Petitioner otherwise waived the claim by failing to argue the claim in its brief.16 See, e.g., Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *3-4 (deeming opposer’s lack of bona fide intent to use claim and the family of marks portion of its likelihood of confusion claim waived because they were not argued in opposer’s brief). Decision: Petitioner’s claim based on likelihood of confusion under Trademark Act Section 2(d) is time-barred and thus we cannot consider it. We deny the petition 15 Id. at 7. 16 In fact, the term “misrepresentation” appears only once in Petitioner’s reply brief, and it was not in reference to the misrepresentation-of-source claim, but in connection with an argument that Respondent had mischaracterized the nature of the registered services when addressing the similarity of the respective services. Petitioner’s Reply Brief, 23 TTABVUE 11. Respondent’s brief, on the other hand, does address the misrepresentation-of-source claim, but only to point out that “Petitioner has produced no evidence of any intent by Registrant to mislead or deceive,” as “[t]he record contains no testimony, document, or communication showing that [Respondent] sought to trade on Petitioner’s reputation or to pass off his services as those of Petitioner.” Respondent’s Brief, 22 TTABVUE 22. We agree. Thus, even if Petitioner had sufficiently pleaded and not waived the claim, it could not have succeeded on this record.
Cancellation No. 92084926 11 to cancel as to the remaining claim of misrepresentation of source under Trademark Act Section 14(3).
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