Fuente Marketing Ltd. v. Shenzhen Future Tech Co., Limited

TAB
March 26, 2026
Opposition No. 91299972
Fuente Marketing Ltd.
v.
Shenzhen Future Tech Co., Limited
Before Wellington, Larkin, and Casagrande,
Administrative Trademark Judges.
By the Board:
This case now comes up on Opposer’s motion for judgment on the pleadings, filed
September 29, 2025. The motion is fully briefed.1
For purposes of this order, the Board presumes the parties’ familiarity with the
arguments submitted with respect to the motion. In deciding the motion, all of the
parties’ arguments were carefully considered, although the Board does not find it
necessary to discuss all of them in this order. See Guess? IP Holder LP v. Knowluxe
LLC, No. 92060707, 2015 WL 9702438, at *2 (TTAB 2015).
1 Opposer filed two copies of its reply brief. 11-12 TTABVUE. Inasmuch as the second-filed
submission appears to be a corrected submission, the first-filed submission will not be
considered.
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
General Email: TTABInfo@uspto.gov
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB

Opposition No. 91299972
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I. Preliminary Matter – Applicant’s Case Citations
As an initial matter, the Board addresses Opposer’s assertions, in its reply brief,
that Applicant has included incorrect, incomplete, and misleading case citations in
its brief. 12 TTABVUE 3-4 & nn.2-4. The Board is very concerned by Applicant’s
multiple citations that are incorrect or incomplete,2 that refer to quotes that do not
exist in the cited cases,3 and that do not support the proposition for which the case
was cited.4 Inaccurate and misleading citations waste time and make it more difficult
for the Board in resolving a dispute.
Applicant is reminded that under Trademark Rule 11.18, by signing a submission
filed with the Board, the signatory is certifying that the legal contentions therein are
warranted by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law. See 37 C.F.R. § 11.18(b)(2)(ii). Fed.
R. Civ. P. 11, which applies to Board proceedings pursuant to Trademark Rule
2.116(a), 37 C.F.R. § 2.116(a), contains substantively identical terms.
2 For example, at 10 TTABVUE 7, the cite to Shakopee Mdewakanton Sioux Cmty. v.
Adrenalin Techs., LLC, is both incomplete and includes the incorrect proceeding number.
Additionally, on the same page, there is no citation at all for the case La Fara Importing Co.
v. F. Lli De Cecco Di Filippo Fara S. Martino S.P.A.
3 For example, the quoted language does not appear at all in Toro Co. v. Hardigg Indus., 549
F.2d 785, 789 (CCPA 1977), which was mentioned at 10 TTABVUE 5.
4 For example, at 10 TTABVUE 6, the brief states “Even when these elements are nominally
present, courts have cautioned that the doctrine ‘is not a mechanical rule to be applied
without regard to fairness and justice.’ Lucky Brand Dungarees, Inc. v. Marcel Fashions
Group, Inc., 590 U.S. 405, 411 (2020); Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1325
(Fed. Cir. 2008).” However, this quote does not appear in either case, nor do the cases discuss
the proposition Applicant cites it for in connection with claim preclusion.

Opposition No. 91299972
3
Moreover, it is the duty of all parties before the Board to review and verify the
contents of each paper presented for consideration. See generally “Guidance on Use
of Artificial Intelligence-Based Tools in Practice Before the United States Patent and
Trademark Office,” 89 Fed. Reg. 25609 (Apr. 11, 2024) (parties utilizing artificial
intelligence to draft papers must confirm the accuracy of all facts and citations to case
law).
Applicant is cautioned that it has a duty to verify and properly cite all legal
authorities discussed in its briefs. Failure to do so may result in sanctions by the
Board either sua sponte or upon motion by Opposer.5 See 37 C.F.R. § 11.18(c).
II. Motion for Judgment on the Pleadings
A. Background
Applicant filed an application to register the standard character mark XLIM for
“Cartomizers, namely, combination electronic cigarette refill cartridges sold
empty and atomizers, sold as a component of electronic cigarettes; Cartridges
sold filled with chemical flavourings in liquid form for electronic cigarettes;
Electronic cigarette atomizers sold empty; Electronic cigarette cases;
Electronic cigarette holders; Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill electronic
cigarette cartridges; Electronic cigarettes; Electronic cigarettes for use as an
alternative to traditional cigarettes; Oral vaporizers for smokers” in
International Class 34.6
On June 27, 2025, Opposer filed a notice of opposition on the grounds of likelihood
of confusion and res judicata (claim preclusion) based on Opposition No. 91274522,
5 The citation issues in Applicant’s response brief may be addressed by further
communications from the USPTO.
6 Application Serial No. 98667836, filed July 26, 2024, under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a).

Opposition No. 91299972
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wherein the Board entered judgment by default against Applicant and refused
registration to application Serial No. 90566934. 1 TTABVUE. Applicant’s answer
contains admissions, in whole or in part, of the following allegations in Opposer’s
notice of opposition:
22. On March 8, 2021, Applicant filed Application Serial No. 90566934 for the
XLIM mark covering “Cigarette cases; Cigarette holders; Cigarettes containing
tobacco substitutes not for medical purposes; Electronic cigarette cases;
Electronic cigarettes; Electronic cigarettes for use as an alternative to
traditional cigarettes; Electronic cigars; Flavorings, other than essential oils,
for use in electronic cigarettes; Liquid nicotine solutions for use in electronic
cigarettes; Oral vaporizers for smokers; Smokers’ mouthpieces for cigarette
holder; Tobacco pipes” in Class 34 alleging a date of first and use in commerce
of January 27, 2021.
23. Application Serial No. 90566934 was published for opposition on December
28, 2021.
24. Applicant admits that Opposer filed Opposition No. 91274522 against
Application Serial No. 90566934.
25. Applicant admits that, in Opposition No. 91274522 against Application
Serial No. 90566934, Opposer alleged a likelihood of confusion under Section
2(d) of the Lanham Act based on various registrations, including those
identified in Paragraph 25.
26. Applicant admits that applicant did not file an answer or otherwise
response [sic] to Fuente’s notice of opposition against Application Serial No.
905666934.
27. Applicant admits that it did not respond to the order to show cause why
judgment by default should not be entered against it.
28. Applicant admits that it did not respond to notice of default entered in
Opposition 91274522.
29. On May 17, 2022, the Board entered judgment by default against Applicant
in Opposition No. 91274522, sustained Fuente’s opposition, and refused
registration of Application Serial No. 90566934.

Opposition No. 91299972
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45. Applicant admits that Opposer and its predecessors may have used certain
X Marks in commerce prior to Applicant’s filing date of July 26, 2024.
46. Applicant admits that certain of Opposer’s pleaded registrations, issued
prior to Applicant’s filing date and date of first use.
49. Prior to Applicant filing Application Serial No. 98667836, the Board
entered final judgment against Applicant in Opposition No. 91274522 and
refused registration of Application Serial No. 90566934.
50. The parties in this opposition proceeding are identical to the parties that
were involved in Opposition No. 91274522.
7 TTABVUE 4-5, 7. Applicant’s answer otherwise denies the remaining salient
allegations and asserts six purported “affirmative defenses.”7 7 TTABVUE.
On September 29, 2025, Opposer filed this motion for judgment on the pleadings
on its claim of res judicata.8 8 TTABVUE 2. The motion is timely inasmuch as it was
filed after the close of the pleadings, but prior to the deadline for pretrial disclosures
for the first testimony period. See Shared, LLC v. Shared Space of Atlanta, LLC, No.
91228478, 2017 WL 6606864, at *1 (TTAB 2017); see also Fed. R. Civ. P. 12(c).
B. Legal Standard
A motion for judgment on the pleadings is a test solely of the undisputed facts
appearing in the pleadings, supplemented by any facts of which the Board may take
judicial notice. See, e.g., Media Online Inc. v. El Clasificado Inc., No. 92047294, 2008
7 The first four are not true affirmative defenses, but rather amplifications of Applicant’s
denials of the claims in the notice of opposition and thus are allowed to stand as such. 7
TTABVUE 8-9. The fifth affirmative defense is the prior registration or Morehouse defense.
Id. at 9. Finally, the sixth is a restriction to Applicant’s identification of goods to avoid a
likelihood of confusion. Id.
8 In its response brief, Applicant also argues the claim of likelihood of confusion, however, it
is not at issue in this motion. Thus, those arguments will receive no further consideration.

Opposition No. 91299972
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WL 4419361, at *4 (TTAB 2008); see also TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) § 504.02 (2025). For purposes of the motion, all well-
pleaded factual allegations of the non-moving party must be accepted as true, while
those allegations of the moving party which have been denied (or which are taken as
denied, pursuant to Fed. R. Civ. P. 8(b)(6), because no responsive pleading thereto is
required or permitted) are deemed false. Media Online Inc., 2008 WL 4419361, at *4.
Conclusions of law are not taken as admitted. Id. All reasonable inferences from the
pleadings are drawn in favor of the nonmoving party. Id.
A judgment on the pleadings may be granted only where, on the facts as deemed
admitted, there is no genuine issue of material fact to be resolved, and the moving
party is entitled to judgment on the substantive merits of the controversy, as a matter
of law. Id. Accordingly, a motion for judgment on the pleadings has utility when all
the material allegations are admitted in the pleadings and only questions of law
remain. See Blizzard Ent., Inc. v. Ava Labs, Inc., No. 91285851, 2024 WL 3467057, at
*2 (TTAB 2024).
C. Entitlement to a Statutory Cause of Action
A party in the position of plaintiff may oppose registration of a mark when it
demonstrates an interest falling within the zone of interests protected by the
pertinent portion of the statute, here, Section 2(d) of the Trademark Act, 15 U.S.C. §
1052(d), and the plaintiff has a reasonable belief in damage that is proximately
caused by registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298,
1303 (Fed. Cir. 2020). Opposer’s entitlement to a statutory cause of action in a Board

Opposition No. 91299972
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opposition “is ‘a low threshold, intended only to ensure that the plaintiff has a real
interest in the matter, and is not a mere intermeddler.’” El Roblar Inv. Prop. LLC v.
Roe, No. 91272200, 2025 WL 2718983, at *20 (TTAB 2025) (citing Univ. of Ky. v. 40-
0, LLC, No. 9122310, 2021 WL 839189, at 6 (TTAB 2021)) (other citations omitted).
For purposes of this motion, Opposer established its entitlement to bring a
statutory cause of action by attaching to its notice of opposition printouts from the
USPTO’s Trademark Status and Document Retrieval (“TSDR”) electronic database
showing the current status and title of its pleaded registrations.9 1 TTABVUE 22-96.
See Trademark Rule 2.122(d)(1), 37 C.F.R § 2.122(d)(1); see also Cunningham v. Laser
Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000); Mountain Gateway Order, Inc. v. Va.
Cmty. Coll. Sys., No. 91283412, 2024 WL 2863444 at *8 (TTAB 2024) (“A claim of
likelihood of confusion that is not wholly without merit is one manner in which a
plaintiff may sufficiently allege entitlement at the pleading stage”) (citing
Cunningham, 222 F.3d at 945); Tequila Cuadra S. de RL de CV v. Manufacturera De
Botas Cuadra, S.A. de C.V., No. 91282327, 2025 WL 1431504, at *5 (TTAB 2025)
(“[O]nce an opposer meets the requirements for [statutory entitlement as to one
claim], it can rely on any of the statutory grounds for opposition set forth in [the
Trademark Act].”) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 1377 (Fed. Cir. 2012)).
9 Opposer is required to maintain its entitlement and affirmatively prove its entitlement at
trial. See Philanthropist.com, Inc. v. Gen. Conf. Corp. of Seventh-Day Adventists, No.
92065178, 2021 WL 2472776, at *4 (TTAB 2021) (citing Lipton Indus., Inc. v. Ralston Purina
Co., 670 F.2d 1024, 1027 (CCPA 1982)), aff’d mem., No. 21-2208, 2022 WL 3147202 (Fed. Cir.
Aug. 8, 2022); see also TBMP §309.03(b).

Opposition No. 91299972
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D. Res Judicata – Claim Preclusion
Under the doctrine of claim preclusion “‘a judgment on the merits in a prior suit
bars a second suit involving the same parties or their privies based on the same cause
of action.’” Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1362 (Fed. Cir. 2000)
(quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)) (other citations
omitted). For claim preclusion to apply, there must be:
(1) identity of parties (or their privies);
(2) an earlier final judgment on the merits of a claim; and
(3) a second claim based on the same set of transactional facts as the first claim.
Id. (citing Parklane Hosiery, 439 U.S. at 326 n.5) (other citation omitted).
1. Identity of Parties
Applicant has admitted that the parties in the prior opposition and the current
opposition are identical. 1 TTABVUE 20, ¶ 50; 7 TTABVUE 7, ¶ 50.
2. Earlier Final Judgment on the Merits
Applicant argues the prior default judgment does not constitute a final judgment
on the merits. 10 TTABVUE 5-6. We disagree. “[W]hether the judgment in the prior
proceeding was the result of a dismissal with prejudice or even default, for claim
preclusion purposes, it is a final judgment on the merits.” Urock Network, LLC v.
Sulpasso, No. 92058974, 2015 WL 4658976, *4 (TTAB 2015) (citations omitted).
Applicant admits that it did not file a response to the notice of default in the prior
opposition and that subsequently, the prior opposition was sustained and judgment
by default was entered against Applicant. See 1 TTABVUE 17 ¶¶ 28-29; 7 TTABVUE

Opposition No. 91299972
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5 ¶¶ 28-29. As such, there is no dispute that the Board’s dismissal of the prior
opposition is a final judgment on the merits. See Orouba Agrifoods Processing Co. v.
United Food Imp., No. 92050739, 2010 WL 5574283, at *4 (TTAB 2010) (“[E]ven
default judgments for failure to answer, or dismissals for failure to prosecute, where
there has been no decision ‘on the merits,’ can act as a bar under the doctrine of claim
preclusion.”).
Applicant also argues that the “prior default was purely procedural and not a
deliberate attempt to evade an adverse ruling” and that application of res judicata
“would unfairly deprive it of its right to be heard and would not serve judicial
economy.” 10 TTABVUE 8.
The Federal Circuit has stated that “[w]hen applying res judicata to bar causes of
action that were not before the court in the prior action, due process of law and the
interest of justice require cautious restraint. Restraint is particularly warranted
when the prior action was dismissed on procedural grounds.” Sharp K.K. v.
ThinkSharp, Inc., 448 F.3d 1368, 1372 (Fed. Cir. 2006) (citing Parklane, 439 U.S. at
330-32). “Precedent cautions that res judicata is not readily extended to claims that
were not before the court, and precedent weighs heavily against denying litigants a
day in court unless there is a clear and persuasive basis for that denial.” Id. (citing
Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed. Cir. 1996)).
In Sharp, the Court decided that claim preclusion did not apply because the prior
opposition was dismissed on grounds that find no parallel in this case. There, the
defendant filed two trademark applications, one for a word mark and the second for

Opposition No. 91299972
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a word-and-design mark. Sharp, 448 F.3d at 1369. The plaintiff filed oppositions
against both co-pending applications, the defendant decided only to defend the word
mark application, and default judgment was entered in the opposition for the word-
and-design mark. Id. The Court affirmed the Board’s holding that res judicata did not
apply in these circumstances noting that a defendant is “not required to litigate both
oppositions to preserve the right to litigate one.” Id. at 1372-73.
Here, in contrast to Sharp, the mark, XLIM, is the same in both the prior and
current opposition and the Board issued the final default judgment in the prior
opposition before Applicant filed the involved application. 1 TTABVUE 16 ¶ 22, 17 ¶
30, 20 ¶ 49; 7 TTABVUE 4 ¶ 22, 5 ¶ 30, 7 ¶ 49. Thus, the additional considerations
regarding the marks and the timing of the second application present in Sharp are
not present here. Moreover, as discussed below, this decision is limited to the goods
that were present in the prior application.
Thus, this is not a decision where it would be unfair to apply claim preclusion as
Applicant had its opportunity to litigate the likelihood of confusion claim previously
on the same mark and legally identical goods and chose not to, which is exactly the
circumstance that claim preclusion is intended to address. See Sharp, 448 F.3d at
1370 (“Claim preclusion refers to the effect of a judgment in foreclosing litigation of
a matter that never has been litigated, because of a determination that it should have
been advanced in an earlier suit.”).

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3. Second Claim Based on Same Set of Transactional Facts as First Claim
We now turn to whether Opposer’s claims in this proceeding are based on the same
set of transactional facts as the prior opposition. Specifically, we must consider
whether Opposer’s claims comprise the same “core [or nucleus] of operative facts” or
are “based on the same, or nearly the same, factual allegations” as those asserted in
the prior proceeding. Jet, Inc., 223 F.3d at 1363. We note first that the ground of
likelihood of confusion with the marks shown in Opposer’s pleaded registrations was
asserted by Opposer in both proceedings. See 1 TTABVUE 16 ¶ 25, 18-19, ¶¶ 33-47;
7 TTABVUE 4-5 ¶ 25.
To determine if separate opposition proceedings involve claims with the same set
of transactional facts for purposes of claim preclusion, we consider:
1) Whether the mark involved in the first proceeding is the same mark, in terms
of commercial impression, as the mark involved in the second proceeding; and
2) Whether the evidence of likelihood of confusion between the opposer’s mark
and the applicant’s first mark would be identical to the evidence of likelihood
of confusion between the opposer’s mark and the applicant's second mark.
BE Sport, Inc. v. Al-Jazeera Satellite Channel, No. 91213743, 2015 WL 5118060, at
*3 (TTAB 2015) (citing Institut Nat’l Des Appellations d’Origine v. Brown-Forman
Corp., No. 91097417, 1998 WL 650076, at*23 (TTAB 1998)).
Thus, next we consider whether the involved marks are the same or legally
equivalent in terms of commercial impression to determine whether the two
oppositions involve the same mark for purposes of claim preclusion. See, e.g., Hana
Fin., Inc. v. Hana Bank, 574 U.S. 418, 420 (2015); BE Sport, Inc., 2015 WL 5118060,
at *3. The mark in both the prior and current opposition is XLIM. See 1 TTABVUE

Opposition No. 91299972
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16 ¶ 22, 17 ¶ 30; 7 TTABVUE 4 ¶ 22, 5 ¶ 30. Thus, we find that the mark in the prior
opposition conveys the same commercial impression as the mark involved in this
proceeding.
Finally, we look at the goods in the prior opposition and current proceeding. We
set them forth below:
Prior Opposition Current Opposition
Cigarette cases; Cigarette holders;
Cigarettes containing tobacco
substitutes not for medical purposes;
Electronic cigarette cases; Electronic
cigarettes; Electronic cigarettes for use
as an alternative to traditional
cigarettes; Electronic cigars; Flavorings,
other than essential oils, for use in
electronic cigarettes; Liquid nicotine
solutions for use in electronic cigarettes;
Oral vaporizers for smokers; Smokers’
mouthpieces for cigarette holder;
Tobacco pipes
Cartomizers, namely, combination
electronic cigarette refill cartridges sold
empty and atomizers, sold as a
component of electronic cigarettes;
Cartridges sold filled with chemical
flavourings in liquid form for electronic
cigarettes; Electronic cigarette
atomizers sold empty; Electronic
cigarette cases; Electronic cigarette
holders; Electronic cigarette liquid (e-
liquid) comprised of flavorings in liquid
form, other than essential oils, used to
refill electronic cigarette cartridges;
Electronic cigarettes; Electronic
cigarettes for use as an alternative to
traditional cigarettes; Oral vaporizers
for smokers
1 TTABVUE 16 ¶ 22, 17 ¶ 30 and 7 TTABVUE 4 ¶ 22, 5 ¶ 30.
The following goods in the current application are identical to goods in the prior
application: “Electronic cigarette cases; Electronic cigarette liquid (e-liquid)
comprised of flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarettes; Electronic cigarettes for use as
an alternative to traditional cigarettes; Oral vaporizers for smokers.”

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Additionally, the goods “electronic cigarette holders” in the current application are
clearly encompassed by the goods “cigarette holders” in the prior application, and are
thus legally identical to those goods. Applicant cannot avoid the estoppel effect of a
prior decision by filing a second application that adds a narrower recitation of goods
that were “fully encompassed” within an identification in the previous application.
See J.I. Case Co. v. F.L. Indus., Inc., 1986 WL 83676, at *3 (TTAB 1986); see also Gen.
Elec. Co. v. Raychem Corp., 1979 WL 24881, at *2 (TTAB 1979) (claim preclusion is
applicable “not only with respect to the identical description of goods as had been
previously litigated, but with respect to all goods that could be said to be encompassed
by that description of goods”) (citing Toro Co. v. Hardigg Indus., Inc., 549 F.2d 785
(CCPA 1977)).
We therefore find that the requisite elements for claim preclusion have been
satisfied for the goods identified in the current application as follows: “Electronic
cigarette cases; Electronic cigarette holders; Electronic cigarette liquid (e-liquid)
comprised of flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarettes; Electronic cigarettes for use as
an alternative to traditional cigarettes; Oral vaporizers for smokers.”
However, there is neither evidence nor admissions that the remaining goods
identified in the current application are identical to or are encompassed by the goods
identified in the prior application. Thus, the elements for claim preclusion have not
been satisfied as to the following goods: “Cartomizers, namely, combination electronic
cigarette refill cartridges sold empty and atomizers, sold as a component of electronic

Opposition No. 91299972
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cigarettes; Cartridges sold filled with chemical flavourings in liquid form for
electronic cigarettes; Electronic cigarette atomizers sold empty.”
E. Morehouse defense
The parties also argue about whether Applicant’s Morehouse defense applies to
Opposer’s specific claim that the prior opposition has fully or partially adjudicated
Applicant’s entitlement to a registration.
In its answer, Applicant has raised the defense of a prior registration, or
Morehouse defense, which is an equitable defense. See Morehouse Mfg. Corp. v. J
Strickland & Co., 407 F.2d 881 (CCPA 1969). 7 TTABVUE 9. The principle of the
Morehouse defense is that a plaintiff cannot be further damaged, within the meaning
of Section 13 of the Trademark Act, by registration of a mark if the defendant already
owns an existing registration for the same or a substantially identical mark for the
same or substantially identical goods or services which are the subject of the present
application. See O-M Bread Inc. v. U.S. Olympic Comm., 65 F.3d 933, 938 (Fed. Cir.
1995). If there is no added damage, there is no ground for challenging registration of
the involved mark. Morehouse, 407 F.2d at 884.
Applicant’s defense is based on its registration of the mark OXVA XLIM.10 7
TTABVUE 9. This defense, however, does not apply here as the registered mark,
OXVA XLIM, is not substantially identical to the mark, XLIM, in the present
application. O-M Bread Inc., 65 F.3d at 939 (OLYMPIC and OLYMPIC KIDS are
10 In its answer, Applicant states the registration number is 97465893, however, this is the
serial number of the underlying application that matured into its registration. The
registration number is 7114715, which appears in the record of the involved application.

Opposition No. 91299972
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neither the same nor legally equivalent); Mag Instrument Inc. v. Brinkmann Corp.,
No. 91163534, 2010 WL 3253200, at *8 (TTAB 2010) (“MAGNUM MAX is not
substantially the same as [the mark] being applied for, MAGNUM MAXFIRE”), aff’d
mem., Nos. 2011-1052,-1053, 2011 WL 5400095 (Fed. Cir. Nov. 9, 2011). Thus,
Applicant’s registration for OXVA XLIM does not provide a prior registration defense
in favor of XLIM.
Because we hold that Applicant’s Morehouse defense fails on this basis, we need
not address whether a Morehouse defense applies to an offensive claim of res judicata
(as opposed to a likelihood-of-confusion claim).
Accordingly, Opposer’s motion for judgment on the pleadings is granted, in part,
on the ground of claim preclusion for the following goods: “Electronic cigarette cases;
Electronic cigarette holders; Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill electronic cigarette
cartridges; Electronic cigarettes; Electronic cigarettes for use as an alternative to
traditional cigarettes; Oral vaporizers for smokers.” The notice of opposition is
sustained for these goods and registration is refused as to them.
However, Opposer’s motion for judgment on the pleadings is denied, in part, on
the ground of claim preclusion for the following goods: “Cartomizers, namely,
combination electronic cigarette refill cartridges sold empty and atomizers, sold as a
component of electronic cigarettes; Cartridges sold filled with chemical flavourings in
liquid form for electronic cigarettes; Electronic cigarette atomizers sold empty.”

Opposition No. 91299972
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The case will proceed with respect to Opposer’s Section 2(d) claim as to these
goods.
III. Proceedings Resumed and Dates Reset
Proceedings are resumed and dates are reset as follows:
Deadline for Discovery Conference 4/20/2026
Discovery Opens 4/20/2026
Initial Disclosures Due 5/20/2026
Expert Disclosures Due 9/17/2026
Discovery Closes 10/17/2026
Plaintiff’s Pretrial Disclosures Due 12/1/2026
Plaintiff’s 30-day Trial Period Ends 1/15/2027
Defendant’s Pretrial Disclosures Due 1/30/2027
Defendant’s 30-day Trial Period Ends 3/16/2027
Plaintiff’s Rebuttal Disclosures Due 3/31/2027
Plaintiff’s 15-day Rebuttal Period Ends 4/30/2027
Plaintiff’s Opening Brief Due 6/29/2027
Defendant’s Brief Due 7/29/2027
Plaintiff’s Reply Brief Due 8/13/2027
Request for Oral Hearing (optional) Due 8/23/2027
Important Trial and Briefing Instructions
Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
manner and timing of taking testimony, matters in evidence, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence.

Opposition No. 91299972
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Trial briefs shall be submitted in accordance with Trademark Rules 2.128(a) and
(b). Such briefs should focus on the most pertinent evidence and utilize citations to
the TTABVUE record created during trial, to facilitate the Board’s review of the
evidence at final hearing. See TBMP § 801.03. Oral argument at final hearing will be
scheduled only upon the timely submission of a separate notice as allowed by
Trademark Rule 2.129(a).