92085302•Mint Construction, LLC v. Travis Hengst
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Bukrinsky Mailed: November 14, 2025 Cancellation No. 92085302 Mint Construction, LLC v. Travis Hengst Before Greenbaum, Thurmon, and Casagrande, Administrative Trademark Judges. By the Board: This proceeding comes before us on Petitioner’s motion, filed June 18, 2025, for summary judgment on its likelihood of confusion claim. The motion is fully briefed. I. Background Respondent owns Registration No. 7120858, on the Principal Register, for the standard character mark MINT for “building construction services” in International Class 37.1 Petitioner filed a petition to cancel the registration pursuant to Trademark Act Section 2(d), 15 U.S.C. § 1052(d). 1 TTABVUE. Petitioner alleges prior common law rights in the mark MINT CONSTRUCTION, which it alleges to have used since 1 The underlying use-based application was filed June 21, 2022 under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and alleged first use in commerce at least as early as January 1, 2021. The registration issued July 25, 2023. UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 General Contact Number: 571-272-8500 THIS ORDER IS NOT A PRECEDENT OF THE TTAB
Cancellation No. 92085302 2 September 2016 in connection with construction services. Id. at 4. Petitioner also alleges that it filed Application Serial No. 974938542 for the mark MINT CONSTRUCTION (“CONSTRUCTION” disclaimed) for various construction services in International Class 37; and that its application was refused registration under Trademark Act Section 2(d) due to a likelihood of confusion with Respondent’s registration. Id. at 4-5. Respondent filed an answer denying the salient allegations of the petition for cancellation, and alleging, inter alia, an affirmative defense of laches. 4 TTABVUE 5.3 One day before its pretrial disclosures were due, Petitioner filed its motion for summary judgment. 9 TTABVUE. 2 Filed July 7, 2022 pursuant to Section 1(a), 15 U.S.C. § 1051(a). 3 Respondent’s other two affirmative defenses are insufficiently pleaded. The first affirmative defense alleges failure to state a claim, which is not a true affirmative defense. See, e.g., Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *6-7 n.5 (TTAB 2021). Moreover, we find that Petitioner sufficiently pleaded its entitlement to a statutory cause of action and Section 2(d) claim. Respondent’s third affirmative defense is unclean hands based on allegations that Petitioner is overreaching in enforcing its trademark rights by bringing this proceeding before the Board. 4 TTABVUE 5. These allegations do not set forth the type of misconduct that constitutes unclean hands, or any other cognizable defense. See DoorDash, Inc. v. Greenerside Holdings, LLC, No. 91285160, 2024 TTAB LEXIS 188, at *6 (TTAB 2024); Time Warner Entm’t Co. v. Jones, No. 91112409, 2002 TTAB LEXIS 462, at *2 n.4 (TTAB 2002)). See also J. THOMAS MCCARTHY, 6 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 31:51 (5th ed. Feb. 2025 update) (“The allegedly unfair or improper filing of a trademark infringement lawsuit cannot itself constitute a basis for an unclean hands defense to that lawsuit.”). Accordingly, the first and third affirmative defenses are stricken. See Fed. R. Civ. P. 12(f) (empowering tribunal to strike an “insufficient defense … on its own”).
Cancellation No. 92085302 3 II. Legal Standard Summary judgment is an appropriate method of disposing of cases in which there is no genuine dispute with respect to any material fact, thus allowing the case to be resolved as a matter of law. See Fed. R. Civ. P. 56(a). A party moving for summary judgment has the burden of demonstrating the absence of any genuine dispute as to a material fact, and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987). A factual dispute is genuine if, on the evidence of record, a reasonable fact finder could resolve the matter in favor of the non-moving party. See Opryland USA Inc. v. Great Am. Music Show Inc., 970 F.2d 847, 850 (Fed. Cir. 1992); Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 202 (Fed. Cir. 1992). The evidence of record must be viewed in the light most favorable to the non-moving party, and all justifiable inferences must be drawn from the undisputed facts in favor of the non-moving party. See Lloyd’s Food Prods. Inc. v. Eli’s Inc., 987 F.2d 766, 767 (Fed. Cir. 1993); Opryland USA, 970 F.2d at 850. We may not resolve disputes as to material facts and, based thereon, decide the merits of the proceeding. Rather, we may only ascertain whether any material fact is genuinely disputed. See Lloyd’s Food Prods., 987 F.2d at 767; Olde Tyme Foods, 961 F.2d at 202; Meyers v. Brooks Shoe Inc., 912 F.2d 1459, 1461 (Fed. Cir. 1990). III. Analysis For Petitioner to prevail on its likelihood of confusion claim, it must demonstrate that there is no genuine dispute of material fact that it owns common law rights in a
Cancellation No. 92085302 4 distinctive mark that was “previously used in the United States,” and that contemporaneous use of the parties’ respective marks in connection with their respective services would be likely to cause confusion or mistake or to deceive consumers regarding the source of the services. See 15 U.S.C. § 1052(d); Giersch v. Scripps Networks Inc., No. 92045576, 2009 TTAB LEXIS 72, at *9 (TTAB 2009) (“In order for a plaintiff to prevail on a claim of likelihood of confusion based on its ownership of common-law rights in a mark, the mark must be distinctive, inherently or otherwise, and plaintiff must show priority of use.”) (citing Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981)); Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., No. 91110043, 2001 TTAB LEXIS 562, at *7 (TTAB 2001). Whether there is a likelihood of confusion between two marks presents an issue of law based on underlying facts, namely, findings under the factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). In addition, Petitioner must establish that there is no genuine dispute of material fact that it is entitled to a statutory cause of action. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1377 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014)). A. Entitlement to a Statutory Cause of Action Petitioner has submitted a printout from the USPTO’s Trademark Status and Document Retrieval (TSDR) database of its application for the mark MINT CONSTRUCTION, including a Nonfinal Office Action refusing registration due to a likelihood of confusion with Respondent’s involved registration. 9 TTABVUE 152-56.
Cancellation No. 92085302 5 This is sufficient to demonstrate the absence of a genuine dispute of material fact that Petitioner has entitlement to a statutory cause of action.4 See Fiat Grp. Autos. S.p.A. v. ISM, Inc., No. 91190607, 2010 TTAB LEXIS 70, at *4-5 (TTAB 2010); Life Zone Inc. v. Middleman Grp., Inc., No. 91160999, 2008 TTAB LEXIS 37, at *17-18 (TTAB 2008). In addition, Petitioner’s well-pleaded claim of likelihood of confusion, coupled with evidence of Petitioner’s use of its own mark as discussed below, demonstrates Petitioner’s entitlement to a statutory cause of action. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1306-07 (Fed. Cir. 2020); Lipton Indus. v. Ralston Purina Co., 670 F.2d 1024, 1029 (Fed. Cir. 1982) (entitlement to a statutory cause of interest shown by evidence of the plaintiff’s “real commercial interest in its own marks, and a reasonable basis for its belief that it would be damaged.”). B. Section 2(d) 1. Priority in a Distinctive Mark In support of the distinctiveness of its mark, Petitioner submits dictionary definitions of MINT, which include, inter alia, a type of aromatic plant, “a place where coins, medals, or tokens are made,” and “to cause to attain an indicated status.” See 9 TTABVUE 161-66. While Respondent asserts that he chose the term MINT as his own mark “to evoke ‘mint condition,’ aligning with the quality of completed exterior work,” Respondent 4 Respondent does not dispute that Petitioner has demonstrated entitlement to a statutory cause of action. See 11 TTABVUE.
Cancellation No. 92085302 6 stops short of arguing that MINT or MINT CONSTRUCTION is descriptive of either party’s services, let alone citing any evidence supporting such an argument. 11 TTABVUE 7. See Wet Seal, Inc. v. FD Mgmt., Inc., No. 91157022, 2007 TTAB LEXIS 21, at *14 (TTAB 2007) (finding pleaded mark distinctive where applicant neither argued nor submitted evidence otherwise). Indeed, Respondent’s own mark MINT was registered for construction services without a claim of acquired distinctiveness. Accordingly, we find no genuine dispute of material fact that MINT CONSTRUCTION is inherently distinctive for Petitioner’s construction services.5 In support of its priority, Petitioner submits the declaration of its manager, Morgan Sharp. 9 TTABVUE 19. Mr. Sharp testifies that “[s]ince its formation in 2016, [Petitioner] has primarily operated as a general contractor and construction manager for commercial construction, specializing in construction of medical and professional office, tenant improvement, senior living, multi-family residential, industrial, and hospitality projects.” Id. at 20. “Beginning in early September 2016, Mint Construction began providing construction services under the MINT CONSTRUCTION mark, including preconstruction planning and construction consultation services.” Id.; see also id. at 38-63 (Budget Proposal for a construction project, bearing the mark MINT CONSTRUCTION, dated September 16, 2016). Petitioner broke ground on its first construction project, an office building, in April 2017, and completed the project in October 2017. Id. at 21. The mark MINT 5 That CONSTRUCTION is not inherently distinctive for construction services does not mean the mark MINT CONSTRUCTION as a whole is not inherently distinctive. See generally Trademark Act Section 6, 15 U.S.C. § 1056 (allowing for disclaimers of unregistrable matter).
Cancellation No. 92085302 7 CONSTRUCTION was displayed at the groundbreaking ceremony and worksite. See id. at 66-69 (Petitioner’s social media posts with photographs). Mr. Sharp provides a chart showing the number of projects started and completed each year from 2017 to 2025, and testifies that the MINT CONSTRUCTION mark was displayed in association with each project. Id. at 22-26; see also id. at 89-127 (social media posts). Also attached to Mr. Sharp’s declaration are archival captures of Petitioner’s website, buildwithmint.com, dated 2018, and captures of the website as of the date of the filing of the motion for summary judgment. Id. at 75-87. Mr. Sharp testifies that the screen captures show how the website was displayed at the relevant times. Id. at 26-27. Finally, Petitioner submits Respondent’s interrogatory responses wherein Respondent states that he has used his mark in commerce since January 1, 2021. Id.at 141 (Resp. to Interrog. Nos. 8-9). The foregoing evidence is sufficient to carry Petitioner’s burden of proof on summary judgment that no genuine dispute of material fact exists that it used the mark MINT CONSTRUCTION before Respondent applied for his mark, and before the earliest date of first use upon which Respondent may rely. Contrary to Respondent’s argument, Petitioner need not prove that its use was “continuous” in order to demonstrate the absence of a genuine dispute of material fact as to its priority. “The governing statute does not speak of ‘continuous use,’ but rather of whether the mark or trade name has been ‘previously used in the United States by
Cancellation No. 92085302 8 another and not abandoned.’” W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1129 (Fed. Cir. 1994) (citing 15 U.S.C. § 1052(d)). Nor must Petitioner prove any specific level of sales. See Christian Faith Fellowship Church v. Adidas AG, 841 F.3d 986, 994 (Fed. Cir. 2016) (no de minimis test for use in commerce). We find Mr. Sharp’s declaration to be clear, consistent, and sufficiently detailed to demonstrate the absence of a genuine dispute of material fact that it used the mark MINT CONSTRUCTION for commercial building construction services prior to Respondent’s first claimed date of January 1, 2021. See, e.g., Hornblower & Weeks, 2001 TTAB LEXIS 562, at *10 (opposer’s declaration, while not corroborated by documentary evidence, was internally consistent, not characterized by uncertainty, and was unchallenged by applicant); 4U Co. of Am., Inc. v. Naas Foods, Inc., No. 92009693, 1972 TTAB LEXIS 171, at *7 (TTAB 1972) (that statements in affidavit were not supported by invoice does not undermine the testimony when uncontradicted; “Suspicion alone is insufficient to invalidate the operative facts set out in a supporting affidavit.”). Moreover, Mr. Sharp’s declaration is corroborated by documentary evidence, including a budget document, photographs, and printouts of social media posts and websites; and Mr. Sharp has testified to the truth of the matter contained in these documents. See Icon Health & Fitness, Inc. v. Eifit LLC, No. 91264393, 2022 TTAB LEXIS 119, at *17 (TTAB 2022) (“[w]hen Internet documents are submitted by witness testimony, the witness may identify and authenticate such documents.”).
Cancellation No. 92085302 9 The foregoing evidence is sufficient to carry Petitioner’s burden of demonstrating the absence of a genuine dispute of material of fact that it used the mark MINT CONSTRUCTION for commercial building construction services before Respondent commenced use of his mark for his services. Once the moving party has carried its initial burden, the nonmoving party may not rest on mere allegations, but must designate specific portions of the record or produce additional evidence showing the existence of a genuine dispute of material fact for trial. Monster Energy Co. v. Tom & Martha LLC, No. 91250710, 2021 TTAB LEXIS 458, at *7 (TTAB 2021) (citing Fed. R. Civ. P. 56(c)(1)). Respondent has not presented any evidence contradicting Mr. Sharp’s declaration and exhibits, and his assertion that Petitioner’s evidence is internally inconsistent is not well-taken. Specifically, Respondent argues that Mr. Sharp’s declaration is inconsistent with Petitioner’s website in counting the projects Petitioner completed. See 11 TTABVUE 3-4. Mr. Sharp explains in an amended declaration, however, that the discrepancy is due to whether separate buildings and building permits that are part of the same project are counted separately. See 12 TTABVUE 16 n.1. Whether Petitioner has completed 206 projects or 253 projects is not relevant to our determination of whether Petitioner demonstrated the absence of a genuine dispute of material fact as to its priority. Accordingly, we find no genuine dispute of material fact that Petitioner has priority of use for commercial building construction services.
Cancellation No. 92085302 10 2. Likelihood of Confusion In determining whether Petitioner has demonstrated the absence of a genuine dispute of material fact that there is a likelihood of confusion between the parties’ marks, we have considered each DuPont factor that is relevant and for which there is evidence of record and argument. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1382 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., No. 91194974, 2015 TTAB LEXIS 67, at *26-27 (TTAB 2015). We treat as neutral any DuPont factors for which there is no record evidence or argument. In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 1322 (Fed. Cir. 2017); Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164 (Fed. Cir. 2002) (cleaned up) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus on dispositive factors, such as similarity of the marks and relatedness of the goods.”). We find no genuine dispute of material fact that the parties’ marks are nearly identical. In MINT CONSTRUCTION, the first term MINT is dominant in creating the commercial impression of the mark, especially in light of the generic or merely descriptive nature of the following term, CONSTRUCTION. See, e.g., Hewlett- Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1266 (Fed. Cir. 2002) (“Given the descriptive nature of the disclaimed word ‘Technologies,’ the Board correctly found that the word ‘Packard’ is the dominant and distinguishing element of PACKARD
Cancellation No. 92085302 11 TECHNOLOGIES.”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876 (Fed. Cir. 1992) (Board correctly found that “Century” is the “dominant element of CENTURY LIFE OF AMERICA due to applicant’s disclaimer of the rest of its mark” and because “upon encountering each mark, consumers must first notice this identical lead word”). And MINT is the entirety of Respondent’s mark. If the dominant portion of both marks is essentially the same, then the marks may be confusingly similar notwithstanding peripheral differences. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (affirming TTAB’s finding that the marks DETROIT ATHLETIC CO. and DETROIT ATHLETIC CLUB are nearly identical in terms of sound, appearance and commercial impression, and noting that, while “the words ‘Co.’ and ‘Club’ technically differentiate the marks, those words do little to alleviate the confusion that is likely to ensue.”); In re Chatam Int’l Inc., 380 F.3d 1340, 1343 (Fed. Cir. 2004) (“Viewed in their entireties with non-dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”). We also find no genuine dispute of material fact that the “building construction services” identified in Respondent’s registration encompass commercial building construction services, in connection with which Petitioner has demonstrated no genuine dispute of material fact as to its priority. See 9 TTABVUE 21-22. Respondent’s argument (at 11 TTABVUE 6-7) that it actually provides “specialized building construction services,” that differ from Petitioner’s “large commercial and industrial construction services,” is not well-taken. See Stone Lion Cap. Partners v.
Cancellation No. 92085302 12 Lion Capital LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014) (“Parties that choose to recite services in their trademark application that exceed their actual services will be held to the broader scope of the application.”); Sw. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 TTAB LEXIS 176, at *60-61 (TTAB 2015) (“Where an applicant identifies its services broadly, we must presume that the services encompass all services of the type identified.”), aff’d mem., 652 F. App’x 971 (Fed. Cir. 2016). With respect to trade channels, Petitioner’s evidence demonstrates that its construction services are offered to the commercial building industry. See supra, pp. 8-9. Petitioner submitted Respondent’s interrogatory response stating that Respondent has “offered or rendered services relating to anything on the exterior of a building, including but not limited to roofing, solar, gutters, etc., as well as interior improvements for both residential and commercial buildings.” 9 TTABVUE 140-41 (Resp. to Interrog. No. 7). Thus, both parties offer construction services for commercial buildings. Moreover, Respondent’s registration does not contain any limitation with respect to consumers or channels of trade, and accordingly we must presume that the services move in all normal channels of trade for “building construction services,” including Petitioner’s channels. See Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS 452, at *12 (TTAB 2017) (“[B]ecause there are no restrictions or limitations in Applicant’s description of goods, we presume that Applicant’s beer will move in all channels of trade normal for such goods and be purchased by all potential
Cancellation No. 92085302 13 customers, including Opposer’s trade channels and Opposer’s customers and potential customers.”). Accordingly, we find no genuine dispute of material fact that the parties’ services are offered in at least some overlapping trade channels, namely with respect to the construction of commercial buildings; and thus to at least some of the same classes of customers. In view of these findings, we find no genuine dispute of material fact that Respondent’s use of his involved mark in connection with the services identified in the registration is likely to cause confusion with Petitioner’s use of its mark. C. Laches Lastly, we address Respondent’s argument that his pleaded laches defense precludes entry of summary judgment. By statute, the defense of laches is available in trademark proceedings. See Trademark Act Section 19, 15 U.S.C. § 1069 (“In all inter partes proceedings equitable principles of laches, estoppel, and acquiescence, where applicable may be considered and applied.”). Respondent, as the party raising the affirmative defense of laches, bears the burden of proof. See Fed. R. Civ. P. 8(c) (characterizing laches as an affirmative defense); Cornetta v. U.S., 851 F.2d 1372, 1380 (Fed. Cir. 1988). The elements of a laches defense are: (1) unreasonable delay in assertion of one's rights against another; and (2) material prejudice to the latter attributable to the delay. See Bridgestone/Firestone Rsch. Inc. v. Auto. Club de l’Ouest de la France, 245 F.3d 1359, 1361 (Fed. Cir. 2001) (“Mere delay in asserting a trademark-related right does not necessarily result in changed conditions sufficient to support the defense of
Cancellation No. 92085302 14 laches. There must also have been some detriment due to the delay.”). “In determining whether a party has too long ‘slept on its rights’ it is necessary to show that the party knew or should have known that it had a right of action, yet did not act to assert or protect its rights.” Id. at 1361-62. The defendant asserting laches must show the plaintiff had actual knowledge or constructive notice of a registrant’s trademark use to establish a date of notice from which delay can be measured. Loma Linda Food Co. v. Thomson & Taylor Spice Co., 279 F.2d 522, 525 (CCPA 1960); Jansen Enters. Inc. v. Rind, No. 92042871, 2007 TTAB LEXIS 47, at *32 (TTAB 2007). Where the plaintiff had actual knowledge of the defendant and its mark prior to publication for opposition, the date of publication is the operative date for laches. Nat’l Cable Tel. Ass’n, Inc. v. Am. Cinema Eds. Inc., 937 F.2d 1572, 1582 (Fed. Cir. 1991). “[I]n the absence of actual knowledge prior to the close of the opposition period, the date of registration is the operative date for laches,” as it provides constructive notice to plaintiff of the registrant’s claim of ownership. Teledyne Techs., Inc. v. Western Skyways, Inc., No. 92041265, 2006 TTAB LEXIS 55, at *23 n.10 (TTAB 2006), aff’d, 208 F. App’x 886 (Fed. Cir. Dec. 6, 2006), and authorities cited therein; see also Jansen Enters., 2007 TTAB LEXIS 47, at *33 (publication in Official Gazette does not provide constructive notice). Thus, laches begins to run no earlier than the date the involved mark was published for opposition (actual knowledge), and no later than the issue date of the registration (constructive notice).
Cancellation No. 92085302 15 Respondent provides no evidence that Petitioner had actual knowledge of Respondent’s use of his mark prior to the publication of Respondent’s application for opposition.6 Accordingly, viewing the facts in the light most favorable to Respondent, the laches period began to run on the issue date of Respondent’s registration: July 25, 2023. It is Respondent’s burden to show an unreasonable delay by Petitioner in asserting its rights against Respondent, and prejudice from that delay, since the date of registration. With respect to the first element, Respondent has presented no evidence other than the passage of time. Petitioner filed its petition for cancellation on May 30, 2024, which is ten months after Respondent’s registration issued. This length of delay, when considered with the lack of evidence of activities or investments made specifically during this period, is insufficient to support a laches defense. See Nahshin v. Prod. Source Int’l LLC, No. 92051140, 2013 TTAB LEXIS 312, at *22 (TTAB 2013) (18 months not sufficient to establish laches); Charrette Corp. v. Bowater Commc’n Papers Inc., No. 92016167, 1989 TTAB LEXIS 52, at *11-12 (TTAB 1989) (14 month delay not sufficient to establish laches); Manpower, Inc. v. Manpower Info. Inc., 1976 TTAB LEXIS 14, at *18-20 (TTAB 1976) (3-4 year delay not sufficient to establish laches when the defendant “offered no evidence whatsoever as to the extent of use of 6 While Respondent references a “April 20, 2023 Non-Final Action” in connection with Petitioner’s application, Respondent did not submit this document, and it is not otherwise of record. While Respondent’s entire registration file is automatically part of the record by operation of Trademark Rule 2.122, see 37 C.F.R. § 2.122(b), the same is not true of Plaintiff’s application, see 37 C.F.R. § 2.122(d). In any event, even if we assume that the laches period runs from April 20, 2023, the additional three months would not change our analysis discussed herein.
Cancellation No. 92085302 16 its marks and the activities thereunder that would establish an untenable situation if applicant were forced to discontinue use of its mark at this time”). Accordingly, Respondent has failed to meet the first element of a laches defense. Even assuming a ten-month delay to be unreasonable, a party asserting laches must also show circumstances compelling enough to give rise to an estoppel, that is, that the party asserting the defense has relied upon the delay to its detriment. Respondent relies only on his interrogatory response stating that he “substantially invested in the mark, and ha[s] spent a substantial amount of time and resources developing and defending the mark.” 11 TTABVUE 7 (citing responses at 9 TTABVUE 141-42). While a party’s own interrogatory response is “not without evidentiary value, [it] generally is viewed as ‘self-serving.’” ShutEmDown Sports, Inc. v. Lacy, No. 92049692, 2012 TTAB LEXIS 44, at *29 (TTAB 2012). An interrogatory response is not the equivalent of oral testimony. Daniel J. Quirk, Inc. v. Vill. Car Co., No. 92057667, 2016 TTAB LEXIS 474, at *19 (TTAB 2016). In any event, Respondent’s interrogatory response is too vague and conclusory to raise a genuine dispute of material fact as to prejudice. See, e.g., Sweats Fashions, 833 F.2d at 1564 (“Mere conclusory statements and denials do not take on dignity by placing them in affidavit form.”); Keystone Consol. Indus., Inc. v. Franklin Inv. Corp., No. 92066927, 2024 TTAB LEXIS 290, at *22-23 (TTAB 2024) (no prejudice shown where record was devoid of competent evidence about advertising expenditures or promotional efforts during the laches period).
Cancellation No. 92085302 17 In addition, the party raising the laches defense not only must show an economic detriment, but also must show that the detriment was caused by the delay. See, e.g., Meyers v. Asics Corp., 974 F.2d 1304, 1308 n.1 (Fed. Cir. 1992) (“laches does require that prejudice results from the delay”); A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1033 (Fed. Cir. 1992) (en banc) (“Material prejudice to adverse parties resulting from the plaintiff’s delay is essential to the laches defense.”). Respondent has made no attempt to do so. In sum, Respondent has failed to raise a genuine dispute of material fact as to his laches defense that would preclude entry of summary judgment in Petitioner’s favor on the claim of likelihood of confusion. IV. Conclusion In view of the foregoing, Petitioner’s motion for summary judgment is granted. Judgment is entered against Respondent and in favor of Petitioner on Petitioner’s claim of likelihood of confusion under Section 2(d) of the Trademark Act. Registration No. 7120858 will be cancelled by the Commissioner in due course.
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