Lorraine Massey v. MJ Imago, LLC

This Opinion is not a
Precedent of the TTAB
Mailed: November 21, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
MJ Imago, LLC
v.
Lorraine Massey
_____
Opposition No. 91284168
(Parent case)
_____
Lorraine Massey
v.
MJ Imago, LLC
_____
Cancellation No. 92076077
(Consolidated) 1
1 Because the parties are in reverse positions in the consolidated opposition and cancellation
proceedings, we will hereinafter refer to MJ Imago, LLC as “Imago” and Lorraine Massey as
“Massey.”
In the consolidation order dated June 26, 2023, 11 TTABVUE (Opp. No. 91284168) and 43
TTABVUE (Can. No. 92076077), the Board indicated that it would treat the parent
Opposition as the “original claim” with Imago as plaintiff, and the Cancellation proceeding
would be treated as a “counterclaim” (along with the counterclaim filed in the opposition),
with Massey as Plaintiff.

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Ian D. Titley of Leading-Edge Law Group PLC
for MJ Imago, LLC.
Joseph A. Uradnik of Uradnik Law Firm PC
for Lorraine Massey.
_____
Before Goodman, Dunn and Elgin,
Administrative Trademark Judges.
Opinion by Goodman, Administrative Trademark Judge:
Massey seeks to register the Principal Register mark CURLY GIRL (in standard
characters) for the following International Class 16 goods:
Printed books in the field of hair care that provide
information and instructions on the care of curly hair,
including information and instructions on hair salon
services, hair styling techniques, hair washing, and hair
care product use and recommendations, including the use
of hair shampoos, hair conditioners, hair dryers, hair dryer
diffusers, hair towels, hair care creams, hair care lotions,
hair care preparations, hair gels, hair sprays, hair styling
gels, hair styling preparations, hair styling sprays, curling
irons, spray bottles, hair accessories, namely, hair clips,
ribbons, pony tail holders, hair brushes, and hair combs.2
Imago opposes registration of Massey’s CURLY GIRL mark under § 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), asserting a likelihood of confusion with the
2 Serial No. 90779874, filed June 17, 2021, under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), alleging January 31, 2011 as the date of first use and first use in commerce.
References to the briefs and the record refer to the Board’s TTABVUE docket system. The
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
Citations in this opinion to the briefs and other materials in the dockets of the consolidated
cases refer to TTABVUE, the Board’s online docketing system. Except where otherwise
indicated, we will cite the TTABVUE docket in the parent proceeding (Opp. No. 91284168).

Opposition No. 91284168 and Cancellation No. 92076077
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Principal Register mark CURLY GIRL (in standard characters), for “Hair salon
services” in International Class 44.3
Massey denies certain salient allegations and admits others in the notice of
opposition, also asserting a waiver defense and counterclaim to cancel the pleaded
registration.4 Massey then filed her first amended answer, admitting additional
salient allegations, deleting the waiver defense, and amending the counterclaim to
limit her claim to one for false suggestion of a connection, Trademark Act § 2(a), 15
U.S.C. § 1052(a).5 Imago denies the salient allegations in Massey’s amended
counterclaim and asserts the affirmative defense of laches.6
Massey also separately petitioned to cancel Imago’s Principal Register
Registration No. 4874682 (unpleaded in the opposition) for the mark CURLY GIRL
(standard characters, GIRL disclaimed) for “Hair shampoos, hair conditioners” in
International Class 37 based on claims of non-ownership under Trademark Act § 8,
3 Registration No. 4284097, issued January 29, 2013, and renewed. 1 TTABVUE. Imago also
alleged in the notice of opposition a descriptiveness claim, a non-ownership claim, and a claim
we construe as alleging that Massey’s use of CURLY GIRL in a book title fails to function as
a mark. 1 TTABVUE. We consider the three claims, not raised in the main trial brief, waived
or forfeited. See NT-MDT LLC v. Kozodaeva, 2021 TTAB LEXIS 112, at *5 n.8 (TTAB 2021).
In the combined response and rebuttal brief, Imago argues its claim that Massey’s use of
CURLY GIRL in a book title fails to function as a mark. 42 TTABVUE 9-13. Massey objects
to Imago’s arguments as untimely. 43 TTABVUE 3. In view of the waiver or forfeiture of this
claim, we agree this is untimely attorney argument and do not consider it.
4 4 TTABVUE.
5 22 TTABVUE. Massey had originally asserted false suggestion of a connection and non-
ownership claims in the original counterclaim in the opposition, 4 TTABVUE, but omitted
the non-ownership claim in the first amended counterclaim. 22 TTABVUE.
6 27 TTABVUE. The original answer to the counterclaim in the opposition was at 6
TTABVUE.
7 Issued December 22, 2015. Section 8 declaration accepted.

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15 U.S.C. § 1058(a) and abandonment (naked licensing) under Trademark Act § 45,
15 U.S.C. § 1127.8 Imago denies the salient allegations in the third amended petition
to cancel and asserts the affirmative defense of laches.9
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the files of the involved application (opposition) and registrations
(counterclaim in opposition and petition to cancel). In addition, Imago and Massey
introduced notices of reliance and declaration testimony during their respective
testimony periods.
The entire record has been considered and relevant evidence is discussed
throughout this opinion, although we do not list its contents. 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 internal
quotation marks omitted); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir.
8 Third amended petition to cancel, Can. No. 92076077, 44 TTABVUE; Can. No. 92076077,
answer 45 TTABVUE. Massey’s original petition to cancel asserted a claim of likelihood of
confusion. Can. No. 9207607, 1 TTABVUE. The first amended petition to cancel, Can. No.
92076077, 18 TTABVUE, asserted non-ownership, likelihood of confusion, false suggestion of
a connection, and abandonment claims, and required repleading. Can. No. 92076077, 18 &
22 TTABVUE. The second amended petition to cancel is at Can. No. 92076077, 23 & 25
TTABVUE. Massey withdrew the likelihood of confusion and false suggestion of a connection
claims asserted in the second amended petition to cancel as reflected in the third amended
petition to cancel. Can. No. 92076077, 44 TTABVUE.
9 Can. No. 92076077, 45 TTABVUE.

Opposition No. 91284168 and Cancellation No. 92076077
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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).
Both parties filed briefs and reply briefs.10
II. Entitlement to Statutory Cause of Action
A plaintiff’s entitlement (formerly known as standing) to invoke a statutory cause
of action for an opposition or cancellation is a necessary element in every inter partes
case. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1304 (Fed. Cir. 2020). To establish
entitlement to a statutory cause of action under Trademark Act Section 14, 15 U.S.C.,
§ 1064, a plaintiff must demonstrate “an interest falling within the zone of interests
protected by the statute and … proximate causation.” Corcamore, 978 F.3d 1303
(citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-134
(2014)); see also Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir.
2022). Stated another way, a plaintiff is entitled to bring a statutory cause of action
by demonstrating a real interest in the proceeding and a reasonable belief of damage.
Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1374-
75 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d
1270, 1275 (Fed. Cir. 2014).
As to the notice of opposition, Imago submitted an electronic copy of its pleaded
registration from the Office’s Trademark Status and Document Retrieval database
10 Imago’s main brief in the opposition is at 40 TTABVUE and its combined response to the
counterclaim/cancellation and reply brief is at 42 TTABVUE. Massey’s combined response
brief to the opposition and main brief in the counterclaim/cancellation is at 41 TTABVUE
and her reply brief in the counterclaim/cancellation is at 43 TTABVUE.

Opposition No. 91284168 and Cancellation No. 92076077
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(TSDR) which is sufficient to establish its entitlement to bring its Section 2(d) claim.
Imago’s Notice of reliance (NOR) no. 1, 34 TTABVUE. Cunningham v. Laser Golf
Corp., 222 F.3d 943, 945 (Fed. Cir. 2000) (registrations suffice as evidence to establish
direct commercial interest and standing).
As a counterclaim-plaintiff in the opposition (false suggestion of a connection
claim against the pleaded registration), Massey’s entitlement is inherent. See Harry
Winston, Inc. v. Bruce Winston Gem Corp., Opp. No. 91153147, 2014 TTAB LEXIS
284, at *27 (TTAB 2014) (“Applicant has [entitlement] based on opposers’ assertion
of their marks and registrations against applicant in their notice of opposition”).
Imago argues that Massey failed to prove “she is entitled to bring a cause of action
to cancel the ‘682 Registration,” and Massey’s “proof do[es] not identify her relevant
economic interest or how any purported injuries are proximately caused by the ’682
Registration.” 42 TTABVUE 13-14.
These arguments regarding Massey’s lack of damage are not well taken because
“there is no requirement that any actual damage be pled or proved to establish
standing.” Montecash LLC v. Anzar Enters. Inc., Can. No. 92051768, 2010 TTAB
LEXIS 133, at *4 (TTAB 2010).
“No absolute test can be laid down for what must be proved to establish
[entitlement] as a petitioner in a cancellation proceeding or as an opposer in an
opposition.” Lipton Indus. v. Ralston Purina Co., 670 F.2d 1024, 1028 (CCPA 1982).
For example, to plead and prove entitlement for abandonment, “[a] petitioner is
required only to be in a position to have a right to use the mark in question.” Poly-

Opposition No. 91284168 and Cancellation No. 92076077
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America, L.P. v. Ill. Tool Works Inc., Can. No. 92056833, 2017 TTAB LEXIS 392, at
*10 (TTAB 2017).
Massey testified that she owns the mark CURLY GIRL in connection with books
in the field of haircare; those books provide hair care product recommendations which
include recommendations for hair shampoo and conditioner, and that her “books have
served as key resources for clients and professionals in the industry.” Lorraine
Massey declaration (Massey declaration), paragraphs 2, 7, 9, 10, 13, 36 TTABVUE.
We also have evidence in the record, discussed infra, that Imago has offered Massey’s
CURLY GIRL haircare books in its salon for its customers in the waiting area and
offered them for purchase. Massey’s Notice of reliance (NOR), exh. 2, Imago’s
interrogatory response no. 9, 35 TTABVUE 20.
This evidence shows Massey is using the mark CURLY GIRL in connection with
books and that there is a relationship between haircare books and hair salons. This
evidence is sufficient to prove Massey’s entitlement in the cancellation.11 See Miller
v. B & H Foods, Inc., 1981 TTAB LEXIS 38, at *7 (TTAB 1981) (no number in original)
(standing established by “use of, or [to] be in a position to use, in its own right, the
same or a similar mark for the same or similar goods”). Cf. Syngenta Crop Prot., Inc.
v. Bio-Chek, LLC, Opp. No. 91175091, 2009 TTAB LEXIS 70, at *15 (TTAB 2009)
(“standing will usually be found in an opposition based on likelihood of confusion
when the opposer establishes its registration or use of a trademark, which right might
11 Once entitlement is established on one ground, a plaintiff has entitlement to pursue any of
the other pleaded grounds. Hole in 1 Drinks, Inc. v. Lajtay, Can. No. 92065860, 2020 TTAB
LEXIS 9, at *10 (TTAB 2020).

Opposition No. 91284168 and Cancellation No. 92076077
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be plausibly harmed by registration of applicant’s mark”); Am. Vitamin Prods. v.
DowBrands Inc., Can. No. 92019036, 1992 TTAB LEXIS 10, at *5 (TTAB 1992)
(petitioner engaged in the manufacture and sale of goods which are related to those
identified in the subject registrations has established standing).
Both Imago and Massey have established entitlement to a statutory cause of
action in the respective proceedings.
III. Plaintiff’s Burden
A party opposing or seeking to cancel a registration bears the burden of proof.
B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 144 (2015).
Imago’s burden as plaintiff in the opposition for the likelihood of confusion claim
is preponderance of the evidence. Stratus Networks, Inc. v. UBTA-UBET Communs.
Inc., 955 F.3d 994, 998 (Fed. Cir. 2020).
Massey’s burden as plaintiff for the false suggestion of a connection counterclaim
in the opposition and the non-ownership and abandonment claims in the cancellation
is a preponderance of the evidence. Metro Traffic Control, Inc. v. Shadow Network
Inc., 104 F.3d 336, 339 (Fed. Cir. 1997) (plaintiff’s burden for a non-ownership claim
is preponderance of the evidence); Cerveceria Centroamericana S.A. v. Cerveceria
India Inc., 892 F.2d 1021, 1023 (Fed. Cir. 1989) (plaintiff’s burden for an
abandonment claim is preponderance of the evidence); Mystery Ranch, Ltd. v.
Terminal Moraine Inc., Opp. No. 91250565, 2022 TTAB LEXIS 418, at *37 (TTAB
2022) (plaintiff’s burden for a false suggestion of a connection claim is preponderance
of the evidence).

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IV. Massey’s Counterclaim in the Opposition – False Suggestion of a
Connection (Opp. No. 91284168, Reg. No. 4284097)
We begin our analysis with Massey’s counterclaim in the opposition for false
suggestion of a connection under § 2(a), since it will affect Imago’s pleaded
registration which serves as a basis for Imago’s likelihood of confusion claim. See
Robinson v. Hot Grabba Leaf, LLC, Can. No. 92060394, 2019 TTAB LEXIS 96, at *16-
17 (TTAB 2019) (addressing counterclaim first where it was “potentially dispositive
of the case” in determining whether “[p]etitioner’s asserted registrations will be
cancelled and are unenforceable against [r]espondent”), cancellation order vacated on
default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019).
Imago argues that Massey’s false suggestion of a connection claim is untimely
because at the time Massey asserted this claim, Imago’s pleaded registration was
more than five years old. 42 TTABVUE 8. However, this argument is not well taken
because Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3), allows for petitions
to cancel at any time based on § 2(a) of the Trademark Act.12 Univ. of Notre Dame Du
Lac v. J.C. Gourmet Food Imps. Co., 703 F.2d 1372, 1376 (Fed. Cir. 1983) (“Notre
Dame”) (“In contrast, a petition for cancellation based on § 2(a) is permissible at any
time”).
Section 2(a) of the Trademark Act prohibits the registration of a mark that
consists of or comprises matter that may falsely suggest a connection with “persons,
12 As we explain further below, we do not construe this claim as a Section 2(d) claim which,
as Imago points out, would have required filing such a claim before the fifth anniversary of
the registration. 15 U.S.C. § 1064(1).

Opposition No. 91284168 and Cancellation No. 92076077
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living or dead, institutions, beliefs, or national symbols ....” 15 U.S.C. § 1052(a). “False
suggestion of a connection under the Trademark Act evolved from the rights of
privacy and publicity, and was intended to preclude registration of a mark that
conflicts with another’s rights in one’s persona or identity.” Pierce-Arrow Soc’y v.
Spintek Filtration, Inc., Opp. No. 91224343, 2019 TTAB LEXIS 388, at *13 (TTAB
2019) (citing Notre Dame, 703 F.2d at 1376). As the Board explained in In re White,
In th[e] [Notre Dame] decision, the Federal Circuit noted
that the Board, subsequent to Morehouse, approached
Section 2(a) false suggestion cases as if they required, in
essence, a showing of likelihood of confusion under Section
2(d) plus a showing of intent to trade upon the goodwill of
a prior user, which was termed a “stringent test.” Notre
Dame, 703 F.2d at 1376. The Notre Dame decision then laid
down certain foundational principles for current Section
2(a) analysis: that Section 2(a) was intended by its drafters
to preclude registration of a mark which conflicts with
another’s rights, even if such rights were not technical
trademark or trade name rights that could be the basis for
a Section 2(d) claim; that a name cannot, however, be
protected in gross; that protection from false suggestion
under Section 2(a) has its roots in rights of privacy and
publicity, i.e., a right to control use of one's identity; that
the name or an equivalent thereof claimed to be
appropriated must be unmistakably associated with a
particular personality or ‘persona’; and that given the
context or circumstances of use, the name must point
uniquely to the other personality or persona. Id. at 1376-
77.
Id.
To establish that a proposed mark falsely suggests a connection with a person or
an institution, the following four elements must be shown:
1. The mark is the same as, or a close approximation of, the
name or identity previously used by another person or
institution;

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2. The mark would be recognized as such, in that it points
uniquely and unmistakably to that person or institution;
3. The person or institution named by the mark is not
connected with the activities performed by the applicant
under the mark; and
4. The fame or reputation of the person or institution is
such that, when the mark is used with the
applicant’s/registrant’s goods or services, a connection with
the person or institution would be presumed.13
Pierce-Arrow Soc’y, 2019 TTAB LEXIS 388, at *14 (citing cases); Springs Indus., Inc.
v. Bumblebee Di Stefano Ottina & C.S.A.S., Can. No. 92013847, 1984 TTAB LEXIS
180 at *4-11 (TTAB 1984) (discussing the adoption of a four-part test for false
suggestion of a connection).
Massey disagrees with the application of the four-part test. Massey argues, based
on prior Board case law, that Trademark Act § 2(a) has a dual purpose: “to protect
the public from likelihood of confusion as to source and protect individual rights of
privacy.” 41 TTABVUE 12. Massey submits that in view of this dual purpose, two
tests are available under § 2(a)—a three-part test (last applied in a Board precedent
13 Although Massey argues prior use, stating she “developed the techniques for and wrote her
first CURLY GIRL book over twenty years” ago, 41 TTABVUE 16, under the current four-
part test, it is not necessary to have prior rights in a name to succeed on a false suggestion
of a connection claim. See, e.g., Hornby v. TJX Cos., Can No. 92044369, 2008 TTAB LEXIS
19, at * 34 (TTAB 2008) (celebrity model “Twiggy” of sufficient fame that purchasers would
presume association with her even though she abandoned use of her name as a trademark
from 1970 to the 1997 date of respondent's application for registration); cf. Estate of Biro v.
Bic Corp., Opp. No. 91073600, 1991 TTAB LEXIS 65, at *14 (TTAB 1991) (“[P]roprietary
rights in a name are not necessary in the context of false suggestion of a connection under
Section 2(a) either as a matter of pleading or of proof.”).

Opposition No. 91284168 and Cancellation No. 92076077
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in 1983)14 and a four-part test (the current test based on Notre Dame). 41 TTABVUE
12-14.
Massey lists the three-part test as 1) prior use of a trademark or trade name; 2).
likelihood of confusion of source; and 3) intent to trade upon the good will of the prior
user. See e.g., United States Mineral Prods. Co. v. GAF Corp., 1977 TTAB LEXIS 167,
*12 (TTAB 1977) (no number in original) (in order to prevail under Section 2(a) claim,
it is incumbent upon plaintiff to establish that it possesses superior rights in the mark
and, “if that can be established, then to show a Section 2(d) situation plus in view of
the terminology, ‘at the very least,’ an intent implied or actual” on the part of
defendant “to trade in on the goodwill and reputation, if any, of the … mark on which
[plaintiff] relies.”).15 41 TTABVUE 12. Massey argues that the three-part test is still
valid and addresses the public policy of protecting consumers to ensure they know
the true source of trademarked goods and services while the four-part test addresses
the public policy of protecting an individual’s right to privacy. 41 TTABVUE 13, 14.
14 “[A]fter Notre Dame, but prior to Canovas [Canovas v. Venezia S.R.L., Opp. No. 91066813,
1983 TTAB LEXIS 14 (TTAB 1983)], the Board applied its likelihood of confusion plus intent
test in Pennwalt Corp. v. Sentry Chem. Co.,” Opp. No. 91064386 1983 TTAB LEXIS 103
(TTAB 1983). Paula T. Hairston, Pleading and Proving a Claim of False Suggestion of a
Connection With Persons and Institutions (“Tips”), 82 Trademark Rep., 253, 256 n.12 (1992).
15 This test has been described as the “likelihood of confusion plus intent” test. Tips, 82
Trademark Rep. at 254. Massey references Board cases between 1977 to 1983 using this
three-part test. 41 TTABVUE 12.
While intent is highly relevant, it is not required under the current test. Consolidated Nat.
Gas Co. v. CNG Fuel Sys., Ltd., Opp. No. 91070774, 1985 TTAB LEXIS 9, at *8-9 (TTAB
1985) (“Opposer has not made any allegations that applicant intended to trade upon opposer's
goodwill, and in accordance with our recent decisions, such allegations are unnecessary to
assert a claim under Section 2(a).”).

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Massey asserts that the three-part test should be applied in cases where it is more
factually relevant, or where applying the four-part test would prove unduly rigid in
protecting the rights at issue,” especially since “there exists an extra burden for prior
trademark users to establish that their mark ‘uniquely and unmistakably’ refers to
them” and “the four-part test’s over-reliance on fame makes it unsuitable for cases
such as this one.”16 41 TTABVUE 14-15. Massey submits that the three-part test has
never been repudiated by Notre Dame or the Federal Circuit and “there is nothing
saying the three-part test cannot be used” in analyzing false suggestion of a
connection claim when the four-part test is inapposite, as she contends it is in this
case. 41 TTABVUE 13, 14.
We disagree. “[W]hile decades ago, ‘the Court of Customs and Patent Appeals
considered a Section 2(a) false suggestion claim, at least when brought by commercial
plaintiffs, to be akin to a Section 2(d) likelihood of confusion claim,’ that conception
evolved into the current standard first articulated in Notre Dame.”17 Pierce-Arrow
Soc’y, 2019 TTAB LEXIS 388, at *22 (quoting In re White, 2004 TTAB LEXIS 529, at
*13). Subsequent to Notre Dame, the Federal Circuit has indicated that
16 Massey asserts it is error to apply the four-part test under the circumstances of this case.
41 TTABVUE 15.
17 “Prior to Notre Dame, plaintiffs attempted to use Section 2(a) to circumvent the protection
accorded five-year old registrations from challenges based on a claim of likelihood of
confusion. To prevent this result, decisions of the Board before Notre Dame generally required
that a plaintiff asserting a claim of false suggestion of a connection not only establish rights
in the mark superior to those of the defendant, and the existence of a Section 2(d) likelihood
of confusion, but an intent, implied or actual, on the part of the defendant to trade on the
good will possessed by the plaintiff in the mark.” Tips, 82 Trademark Rep. at 254 (footnotes
omitted).

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the rights protected under the § 2(a) false suggestion
provision are not designed primarily to protect the public,
but to protect persons and institutions from exploitation of
their persona. See University of Notre Dame du Lac v. J.C.
Gourmet Food Imports Co., Inc., 703 F.2d 1372, 1376, (Fed.
Cir. 1983) (“It appears that the drafters sought by § 2(a) to
embrace concepts of the right to privacy,” even in the
absence of likelihood of confusion.). This protection of
rights of personal privacy and publicity distinguishes
the § 2(a) false suggestion of connection provision from
the § 2(d) likelihood of confusion provision.
Bridgestone/Firestone Rsch. Inc. v. Auto. Club de l'Ouest de la France, 245 F.3d 1359,
1363 (Fed. Cir. 2001). The Board has noted the same. See Mystery Ranch, Opp. No.
91250565, 2022 TTAB LEXIS 418, at *23 (TTAB 2022) (“Trademark Act Sections 2(a)
and (c) are not designed primarily to protect an entity’s proprietary interest in a
trademark, but rather are designed to “protect persons and institutions from
exploitation of their persona.”); In re Wielinski, Ser. No. 74412727, 1998 TTAB LEXIS
349 at *7 (TTAB 1998) (“Section 2(a) ... is not about likelihood of confusion with
trademarks. That problem is covered by Section 2(d) of the Act.”), overruled in part
on other grounds, In re WNBA Enters. LLC, Ser. No. 75599525, 2003 TTAB LEXIS
276 (TTAB 2003).
As Professor McCarthy points out, “[t]he issue in a § 2(a) case is not whether
consumers would believe that the defendant’s goods emanate from the plaintiff [but]
whether consumers would falsely assume the goods had some connection with
plaintiff.” J. Thomas McCarthy, 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 19:76 (5th ed. Sept. 2025 update). Therefore, the Board’s prior three-
part test (“likelihood of confusion plus intent”) for false suggestion of a connection has
been replaced, based on the guidance under Notre Dame, with the four-part test set

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forth above. See Piano Factory Grp., 11 F.4th at 1377 (discussing application of the
four-part test); see also In re Foster, 136 F.4th 1090, 1094 (Fed. Cir. 2025) (“The four-
part test provides a helpful framework to assess whether there is a false suggestion
of a connection, but it is not an exhaustive list”; additional factors may be considered
depending on the relevant factual situation, e.g., intent or the nature of the goods or
services). Because under the guidance of Notre Dame and the present case law the
rights protected under the § 2(a) false suggestion provision are not designed primarily
to protect the public but to protect persons and institutions from exploitation of their
persona, we apply the four-part test to determine Massey’s false suggestion of a
connection claim.
The Board’s four-part test is not a balancing test whereby a successful showing of
one element may cancel out the failure to show one or more of the other elements.
Rather, each of the four elements of the test must be shown for a finding of a false
suggestion of a connection. See Mystery Ranch, 2022 TTAB LEXIS 418, at *23 (“A
false suggestion of a connection has been established when four elements are
proved.”). There is no requirement that we consider the elements in a specific order.
See e.g., Hornby v. TJX Cos., Can. No. 92044369, 2008 TTAB LEXIS 19 (TTAB 2008);
(considering, the first third, and the fourth elements before the second element); In
re White, 2006 TTAB LEXIS 263 (considering the first and third elements, followed
by the fourth and second elements).
We now turn to consideration of the four-part test.

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A. The mark is the same as, or a close approximation of, the name or
identity previously used by another person or institution
As to element one, the Board has said that “the similarity required for a ‘close
approximation’ is akin to that required for a likelihood of confusion under § 2(d) and
is more than merely ‘intended to refer’ or ‘intended to evoke.’” Bd. of Trs. of Univ. of
Ala. v. Pitts, Opp. No. 91187103, 2013 TTAB LEXIS 370 at *92 (TTAB 2013) (vacated
pursuant to settlement on appeal). The plaintiff must have publicly used or promoted
the name as a means of identifying itself. Id.
Massey testified that she is known throughout the United States as the “original
Curly Girl,” she is a “pioneer of the Curly Girl movement in haircare,” “developed the
Curly Girl Method hair styling technique,” is “the primary author on the Curly Girl
series of haircare books,” which “served as key resources for clients and professionals
in the industry,” has “promote[d] the reputation of CURLY GIRL as widely as possible
and to identify me as the author and source of the books associated with my CURLY
GIRL Mark,” and “owns a trademark for CURLY GIRL for books in the field of hair
care.” Massey declaration, paragraphs 2, 7, 8, 13, 15, 36 TTABVUE. Massey argues
that it is indisputable that the parties’ marks are identical. 41 TTABVUE 16.
We find that CURLY GIRL is Massey’s name and identity. Imago has registered
the exact same name, CURLY GIRL. Massey’s name and Imago’s mark are identical.
This element is satisfied.
Because many of Massey’s arguments fall under the fourth element, we consider
this element next.

Opposition No. 91284168 and Cancellation No. 92076077
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B. The fame or reputation of the person or institution is such that, when
the mark is used with the applicant’s goods or services, a connection
with the person or institution would be presumed.
For the fourth element, “the fame or reputation of petitioner must be determined
as of the time” the registration issued. Piano Factory Grp., 11 F.4th at 1379 (“In
considering a false association claim, the Board is required to assess the facts as of
the time the mark was registered.”) (citing cases). Nonetheless, evidence before or
after the date of issuance of the registration “may tell us something about the fame
or reputation as of that date.” Id. As noted in Notre Dame, and further explained in
White I, the fame of the name of a person or institution is not sufficient in and of itself
to provide the basis for protection of the name under the § 2(a) false suggestion
analysis. Notre Dame, 703 F.2d at 1377. Rather, the key is whether the name per se
is unmistakably associated with a particular person or institution and, as used would
point uniquely to the person or institution. In short, it is the combination of: (1) a
name of sufficient fame or reputation and (2) its use on or in connection with
particular goods or services, that would point uniquely to a particular person or
institution. In re Pedersen, Ser No. 85328868, 2013 TTAB LEXIS 618, *61 (TTAB
2013). Thus, our inquiry is whether consumers of hair salons presume a connection
with Massey’s persona CURLY GIRL when the name is used on such services. The
burden is on Massey to show that she had sufficient fame and/or reputation as of
January 29, 2013 when Imago’s registration issued.
Although Massey argues that it is indisputable that the goods and services of the
parties are closely related, 41 TTABVUE 16, we do not require proof that Massey’s

Opposition No. 91284168 and Cancellation No. 92076077
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persona as CURLY GIRL is well-known for hair salons or closely related to them in
considering this factor. Piano Factory Grp., 11 F.4th at 1380 (“[A] false association
claim does not require proof that a prior user’s reputation “is closely related to [a
registrant’s] goods”) (quoting In re Pedersen, 2013 TTAB LEXIS 618, at *62-63 (“We
hasten to note that this fourth factor does not require proof of a reputation that is
closely related to [a registrant’s] goods)). But “similarity between the goods or services
offered under the registered mark and the goods or services offered by the party
challenging the registration can be highly relevant to a false association claim.” Piano
Factory Grp., 11 F.4th at 1380; In re Pedersen, 2013 TTAB LEXIS 618, at *63
(considering evidence of relatedness relevant under the fourth element of the test).
“And a party’s name may be associated with particular goods [or services] such
that a false association may be established with goods or services of that type even if
it would not have been established with respect to entirely different goods or
services.” Piano Factory Grp., 11 F.4th at 1380. “[A] related principle is that a party’s
name may be famous among the particular consumers of those goods and services
even if it is not famous among members of the general public.” Id. (“it was reasonable
for the Board to consider the issue of the appellee’s fame and reputation from the
perspective of purchasers of keyboard musical instruments, who would be more likely
than the general public to associate Schiedmayer-labeled pianos with the appellee”).
Massey testified that “[i]n hair salons, clients seek inspiration for their own
beauty and hair styles from the books and magazines that their salon provides, and
from the recommendations of its stylists. As such, all of my books have served as key

Opposition No. 91284168 and Cancellation No. 92076077
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resources for clients and professionals in the industry.” Massey declaration,
paragraph 7, 36 TTABVUE. Massey also provided Imago’s interrogatory response no.
9 to Massey’s interrogatory request (Massey’s NOR, exh. 2, 35 TTABVUE 20):
Describe in detail MJ Imago, LLC,’s knowledge or awareness of Lorraine
Massey’s CURLY GIRL books prior to filing any trademark registration
application for the mark CURLY GIRL.
ANSWER: Prior to filing any trademark registration application for the
mark CURLY GIRL, MJ Imago, LLC, had, and continues to have in its
waiting area for customer use, the book entitled CURLY GIRL THE
HANDBOOK by Lorraine Massey with Michele Bender. In addition, MJ
Imago, LLC, has sold over 200 copies of the book entitled CURLY GIRL
THE HANDBOOK by Lorraine Massey with Michele Bender.
In addition, Massey admitted in response to the notice of opposition that Massey’s
books and Imago’s salon services are closely related, arguing the same in her brief.18
We find this evidence relevant to show there is a relationship between hair salon
services and haircare books.
As to Massey’s reputation or fame, Massey testified (Massey declaration 36
TTABVUE) that she is known throughout the US as the original Curly Girl (para 8)
and is “the pioneer of the Curly Girl movement in haircare” (para 2); developed the
Curly Girl Method, a hair styling technique that has been adopted by thousands of
hair stylists worldwide, (para 15); that she is an expert in the operation of hair salons,
having worked in, owned, and managed them (para 6); has continuously offered books
under the CURLY GIRL mark, providing valuable information and instructions on
the care and styling of curly hair, salon services, and hair care practices (para 10);
18 Notice of Opposition, 1 TTABVUE; amended answer 22 TTABVUE.

Opposition No. 91284168 and Cancellation No. 92076077
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that the first edition of the CURLY GIRL book was originally published in January
2002, and laid “the foundation for my expertise and influence within the curly hair
community,” (para 11) and the expanded second edition printed in December 2010
(para 12); that her books under the CURLY GIRL name have been offered
continuously (para 10); that she and her CURLY GIRL books “have received
widespread acclaim in publications such as Allure, InStyle, Lucky, Seventeen, The
New York Times, Cosmopolitan, Real Simple, and Vogue which has helped establish
my credibility and reach as an authority in curly hair” (para 16); and she has
“developed extremely valuable goodwill throughout the United States with respect to
the CURLY GIRL Mark” (para 18).
Much of Massey’s testimony contains broad general statements and lacks
corroborating documentary evidence to establish her reputation or fame. For
example, although Massey testifies that she has had “widespread acclaim” in national
publications such as Allure, InStyle, Lucky, Seventeen, The New York Times,
Cosmopolitan, Real Simple, and Vogue, she did not provide either copies of the
articles or sufficient information about the nature of the articles, the volume of
readership, the periods of time when the articles were published, or how often, so that
we can make any meaningful conclusions regarding public exposure of Massey’s
persona through these publications. Although she indicates that her books have been
offered continuously under the CURLY GIRL name, she also did not provide any
evidence regarding the number of potential purchasers or readers of her book between
2002 through 2013 or after, nor did she provide any specific information about public

Opposition No. 91284168 and Cancellation No. 92076077
- 21 -
exposure of her persona during 2013. And although Massey testified that “I have
invested and continue to invest considerable time, money, and effort to establish and
promote the reputation of CURLY GIRL,” (Massey declaration, paragraph 13, 36
TTABVUE), her testimony lacks specific details about these efforts.
Broad general statements by witnesses usually are not adequate, especially in the
absence of corroborating documentary evidence. Cf., Thompson Med. Co. v. Alberto-
Culver Co., 1967 TTAB LEXIS 181, at *7 (TTAB 1967) (no number in original) (broad
general testimony without corroborating documentation is unsupported and
insufficient to support priority claim). Given the more general nature of Massey’s
testimony as well as the lack of corroborating documentation, we find that Massey
has not established the fame and reputation of the CURLY GIRL persona at the time
that Imago’s CURLY GIRL registration issued.19
Accordingly, although we have found that the goods and services are related, we
lack sufficient specific information about Massey’s fame or reputation to make a
finding about whether consumers of hair salons presume a connection with Massey’s
persona CURLY GIRL when the name is used on such services. The fourth element
of the test has not been satisfied, and the false suggestion of a connection claim fails.
19 Massey also has argued Imago’s intent to trade on her goodwill, 41 TTABVUE 16-19, which
can be relevant. See In re Pedersen, 2013 TTAB LEXIS 618, at *63 (“any evidence of
applicant’s intent to identify with the Lakota people is highly persuasive”). But even if we
were to find Imago intended to trade on the goodwill of Massey, absent a finding that Massey
had sufficient fame or reputation, this element cannot be satisfied. Association Pour La
Defense Et La Promotion De L’Oeuvre De Marc Chagall Dite Comite Marc Chagall v.
Bondarchuk, Can. No. 92042323, 2007 TTAB LEXIS 38, at *22 (TTAB 2007) (highly
persuasive evidence of clear intent combined with substantial evidence of the fame or
reputation of Marc Chagall in the United States established the fourth element of the false
suggestion of a connection test).

Opposition No. 91284168 and Cancellation No. 92076077
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In view of the failure of the fourth element of the four-part test, we need not
address the remaining elements of Massey’s Section 2(a) claim.20 See Mystery Ranch,
2022 TTAB LEXIS 418, at *37 (finding it unnecessary to address the remaining
factors for a false suggestion of a connection claim where factors one and two had not
been satisfied).
The § 2(a) false suggestion of a connection counterclaim to cancel Registration No.
4284097 is dismissed.
V. Likelihood of Confusion (Opp. No. 91284168, Ser. No. 90779874)
A. Priority
As indicated, in our discussion of entitlement, Imago submitted a TSDR printout
of its pleaded registration. In view of our denial of the counterclaim to cancel the
pleaded registration based on false suggestion of a connection, priority is not at issue
with respect to the pleaded CURLY GIRL registration and the hair salon services
identified by it. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
1402 (CCPA 1974).
B. Likelihood of Confusion
Our determination of likelihood of confusion under Section 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
20 Imago’s arguments were directed to element two of the test, stating that “Massey failed to
introduce any evidence, let alone prove, that Imago’s use of the CURLY GIRL mark points
uniquely and unmistakably to Massey.” 42 TTABVUE 8.

Opposition No. 91284168 and Cancellation No. 92076077
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1361 (CCPA 1973) (“DuPont”). We consider each DuPont factor for which there is
evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed.
Cir. 2019); In re Country Oven, Inc., Ser. No. 87354443, 2019 TTAB LEXIS 381, at *2
(TTAB 2019).
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. See In re i.am.symbolic, LLC, 866 F.3d 1315, 1322
(Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165
(Fed. Cir. 2002)); 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 and
differences in the marks.”). These are the factors addressed by the parties. Imago
points to the similarity in sound and appearance of the marks. 40 TTABVUE 4.
Massey argues relatedness of the goods and services. 41 TTABVUE 16-17.
1. Judicial Admissions
As to likelihood of confusion, we have the following judicial admissions in Massey’s
answer (Opp. No. 91284168, 1 TTABVUE; 22 TTABVUE):
Notice of Opposition
9. Applicant’s Mark, CURLY GIRL, is identical to the CURLY GIRL mark in the ’097
Registration.
Answer
9. Massey admits that her mark CURLY GIRL of Application Serial No. 90/779,874
has the same sound and appearance as the mark of Registration No. 4,284,097. The
remaining allegations of paragraph 9 are denied.
Notice of Opposition
11. Applicant’s Goods are closely related to the MJ Imago Services, namely, hair salon
services.

Opposition No. 91284168 and Cancellation No. 92076077
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Answer
11. Admitted.
Notice of Opposition
14. Applicant’s Mark is likely, when applied to Applicant’s Goods, to deceive the
public and to create a likelihood of confusion between, on the one hand, Applicant and
Applicant’s Goods, and, on the other hand, MJ Imago’s use of its federally registered
CURLY GIRL mark for the MJ Imago Services.
Answer
14. Massey admits that a likelihood of confusion exists due to Massey’s use of the
CURLY GIRL mark in connection with hair care books and MJ Imago’s use of the
CURLY GIRL mark in connection with hair salon services.
Actual admissions in pleadings, unless amended, are considered judicial
admissions conclusively binding on the party who made them. Reliable Contracting
Grp., LLC v. Dep’t of Veterans Affs., 779 F.3d 1329, 1334 (Fed. Cir. 2015) (“judicial
admissions, which ‘have the effect of withdrawing a fact from issue and dispensing
wholly with the need for proof of the fact,’ are limited to formal admissions made in,
for example, a complaint, answer, or pretrial order”); see also Made in Nature, LLC
v. Pharmavite LLC, Opp. No. 91223352, 2022 TTAB LEXIS 228, at *26-27 (TTAB
2022) (a “judicial admission … is incapable of refutation”); Fed. R. Civ. P. 36, advisory
committee’s note to 1970 amendment (“The new provisions give an admission a
conclusively binding effect, for purposes only of the pending action, unless the
admission is withdrawn or amended. In form and substance a Rule 36 admission is
comparable to an admission in pleadings or a stipulation drafted by counsel for use
at trial, rather than to an evidentiary admission of a party.”).
Therefore, we have judicial admissions as to similarity of the marks, the
relatedness of the goods and services, and an admission as to likelihood of confusion.

Opposition No. 91284168 and Cancellation No. 92076077
- 25 -
2. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en
1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476 F.2d at 1361).
Massey and Imago’s standard character CURLY GIRL marks are identical in
appearance, sound, connotation and commercial impression. Massey has admitted
the marks are identical which encompasses the first DuPont factor of similarity of
the marks. Massey also states in her brief the marks are identical. 41 TTABVUE 16.
This factor favors a finding of likelihood of confusion.
3. Similarity or Dissimilarity of the Goods and Services
The second DuPont factor considers “[t]he similarity or dissimilarity and nature
of the goods [or services] as described in an application or registration.” DuPont, 476
F.2d at 1361.
Likelihood of confusion can be found “if the respective products [or services] are
related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that they emanate from the same
source.” Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012).
The previously discussed evidence relating to Massey’s CURLY GIRL haircare
books being provided in hair salons and Imago’s interrogatory response that it has
provided Massey’s CURLY GIRL books to its customers in the waiting area and sold
them to its customers is sufficient to show relatedness of the goods and services. In
addition, Massey has admitted in her answer that the goods and services of the

Opposition No. 91284168 and Cancellation No. 92076077
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parties are closely related. Massey also states in her brief that the goods and services
are closely related. 41 TTABVUE 16.
This factor favors a finding of likelihood of confusion.
4. Conclusion
Both the similarity of the marks and the goods and services weigh heavily in favor
of likelihood of confusion. We find that confusion is likely.
The opposition involving application Serial No. 90779874 is sustained on the
ground of likelihood of confusion.
VI. Non-Ownership Claim (Can. No. 92076077, Reg. No. 4874682)
We now turn to the petition to cancel the registered mark CURLY GIRL for “Hair
shampoos, hair conditioners.” Massey alleges that Imago is not the owner of the
CURLY GIRL mark as of the filing of the Section 8 affidavit and that Imago never
controlled the nature and quality of the identified hair shampoo and hair conditioner
goods.21
In her brief, Massey argues that the facts in the record support the conclusion
that Imago does not control the nature and quality of the products. Massey points to
21 Petition to Cancel, Can. No. 92076077, paragraphs 21, 23, 25, 41.
In considering a motion for judgment on the pleadings on the non-ownership claim based on
the Section 8 filing in Can. No. 92076077, the Board stated: “Petitioner’s allegations set forth
a plausible claim that Respondent was not the owner of the mark at the time it filed its
Section 8 declaration. In contrast, there is no statutory basis for cancellation based on the
allegation that Respondent did not own the mark at the time Petitioner filed its petition for
cancellation.” The Board decided that the “motion for judgment on the pleadings on the
nonownership is denied in part as to the claim based on the filing of an affidavit or declaration
of continued use or excusable nonuse under Section 8 before the expiration of the statutory
grace period and granted in part as to the claim based on the time the petition was filed.” 31
TTABVUE (Can. No. 92076077).

Opposition No. 91284168 and Cancellation No. 92076077
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the lack of evidence of a written license or written agreement or quality control
standards between Imago and Street Designs LLC (Street Designs), a sister
corporation owned by the same individual, Mr. Battiston, that sources and sells
CURLY GIRL brand products.22 41 TTABVUE 25; see Battiston declaration,
paragraphs 17, 18, 19, 23, 38 TTABVUE; Massey NOR, exh. 2, Imago’s interrogatory
response nos. 14, 17 & 20, 25 & 26, 29, 31, 35 TTABVUE 21-24, 26-27. Massey argues
that there was no express contract for Imago to inspect and supervise Street Designs’
operations, there is no indicia of actual control, and that Imago cannot demonstrate
actual control of Street Designs through inspection and supervision. 41 TTABVUE
25. Massey points out that Street Designs did not manufacture the products or control
the formulation of the manufactured products which were determined by the
manufacturer Liquid Tech. 41 TTABVUE 27, Massey’s NOR, exh. 4, Imago’s
interrogatory response no. 53, 35 TTABVUE. Massey also argues that Imago did not
control the appearance of the mark on the goods and points out that Imago’s name
was never on the packaging. 41 TTABVUE 25, 26.
Massey submits that “[t]he mere fact that MJ Imago and Street Designs have a
common owner is an insufficient basis to conclude that quality control standards
existed and MJ Imago exercised the requisite control over the nature and quality of
the goods,” citing Great Seats, Ltd. v. Great Seats, Inc., Can. No. 92032524, 2007
TTAB LEXIS 68 (TTAB 2007). Id.
22 Massey asserts that it is either Mr. Battiston or Street Designs who is the owner of the
mark. 41 TTABVUE 20.

Opposition No. 91284168 and Cancellation No. 92076077
- 28 -
Imago responds that Imago and Street Designs are and always have been related
entities within the meaning of 15 U.S.C. §§ 1055 and 1127, and it has a nunc pro tunc
license agreement and an “Action in Writing” that provides “unrefuted evidence to
confirm” Imago’s and Street Designs’ relationship. 42 TTABVUE 14-15, referencing
the Battiston declaration and accompanying exhibits.
Massey’s non-ownership claim considers Imago’s ownership of the involved
registration at the time of filing the Section 8 declaration of use. In particular, if
Imago, the party who filed the Section 8 declaration, was not the owner of the
registration at the time of filing, and the grace period has expired to allow for the
filing of a new declaration by the true owner, the registration will be cancelled. 15
U.S.C. § 1058(a); Trademark Rule 2.164(b), 37 C.F.R. § 2.164(b).
In Great Seats, the Board considered a non-ownership claim involving sister
corporations owned by one individual under two theories: 1) a single continuing entity
theory and 2) a related company theory. Great Seats, Ltd., 2007 TTAB LEXIS 68, at
*14. The applicable theory here would be a related company theory.
The term “related company” is defined as “any person whose use of a mark is
controlled by the owner of the mark with respect to the nature and quality of the
goods or services on or in connection with which the mark is used.” Section 45 of the
Trademark Act of 1946, 15 U.S.C. § 1127. See also Ballet Tech Found., Inc. v. Joyce
Theater Found., Inc., Opp. No. 91180789, 2008 TTAB LEXIS 51, at * 31 n.67 (TTAB
2008) (providing the definition of related company based on 15 U.S.C. § 1127),
judgment vacated pursuant to settlement, 2013 TTAB LEXIS 581 (TTAB 2013). “The

Opposition No. 91284168 and Cancellation No. 92076077
- 29 -
essence of related-company use is the control exercised over the nature and quality
of the goods or services on or in connection with which the mark is used. When a mark
is used by a related company, use of the mark inures to the benefit of the [party] who
controls the nature and quality of the goods or services.” Sock It To Me, Inc. v. Fan,
Opp. No. 91230554, 2020 TTAB LEXIS 201, at *11 (TTAB 2020) (quoting Noble House
Home Furnishings, LLC v. Floorco Enters., Can. No. 92057394, 2016 TTAB LEXIS
100 at *31 (TTAB 2016)). Either an individual or a juristic entity may own a mark
that is used by a related company. In re Hand, Ser. No. 475968, 1986 TTAB LEXIS
65, at *5-6 (TTAB 1986). The party who controls the nature and quality of the goods
or services is the owner of the mark, see Smith Int’l. Inc. v. Olin Corp., 1981 TTAB
LEXIS 47, at *30 (TTAB 1981) (no number in original), and therefore, this is the only
party who may file the Section 8 affidavit or declaration of use/nonuse.
A licensee may be a related company. “As a ‘related company,’ the licensee’s use
of the mark inures to the benefit of the licensor-registrant.” Sock it to Me, 2020 TTAB
LEXIS 201, at *12 (citing Thomas, McCarthy, 3 MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION § 18:51 (5th ed. Nov. 2019 update)); see also In re Wella A.G.,
787 F.2d 1549, 1554 (Fed. Cir. 1986) (“Whether the relationship is that of
licensor/licensee or parent/subsidiary, the one entity which controls the nature and
quality of the goods sold under the mark is the owner.”). A written license agreement
– or any agreement so titled – is not required. Nestle Co. v. Nash-Finch Co., Opp. No.
91068330, 1987 TTAB LEXIS 63, at *9 (TTAB 1987) (“While there is no written
license agreement dealing specifically with DELI QUIK per se, it is apparent that an

Opposition No. 91284168 and Cancellation No. 92076077
- 30 -
affiliated store electing to participate in the merchandising program offered by
applicant becomes a licensee to use applicant’s various trademarks, including DELI
QUIK.”); Basic Inc. v. Rex, 1970 TTAB LEXIS 213 at *7 (TTAB 1970) (no number in
original) (“An oral license is sufficient to show a related company condition ....”).
To support her position, Massey relies on Imago’s admission in the answer to the
second amended petition to cancel which was superseded by Imago’s answer to the
third amended petition to cancel.23 41 TTABVUE 21-22; In the second amended
answer to the petition to cancel, Imago admitted at paragraph 66 that “David
Battiston individually controls the nature and the quality of the goods sold by Street
Designs under the CURLY GIRL mark.”24
While superseded pleadings may be introduced as evidence and statements made
may be considered an admission, they lose their binding force as a judicial admission
and their value is as an evidentiary admission. 32 C.J.S. Evidence § 617 (May 2025
update). Evidentiary admissions may be controverted or explained by the party. Id.
Massey also relies on Imago’s response to interrogatory request no. 3 (Massey’s
NOR, exh. 2, 35 TTABVUE 17-18):
Identify any agreements between MJ Imago, LLC, and Street Designs,
LLC, related to ownership or use of the CURLY GIRL mark.
ANSWER: There are no written agreements between MJ Imago, LLC,
and Street Designs, LLC, related to ownership or use of the CURLY
GIRL mark. All quality and control decisions regarding CURLY GIRL
brand products sold by Street Designs, LLC, are made by David
23 Can. No. 92076077, second amended petition to cancel and answer 25 & 26 TTABVUE;
third amended petition to cancel and answer, 44 & 45 TTABVUE.
24 Can. No. 92076077, 26 TTABVUE.

Opposition No. 91284168 and Cancellation No. 92076077
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Battiston. A license between the two legal entities is implied due to the
common ownership of both by a single individual.
Massey points out that Battiston’s attorneys “should have understood that acting
individually means acting in an individual capacity, and corrected the [interrogatory]
response if it was wrong. But they did not, …”25 43 TTABVUE 3.
In his declaration testimony Mr. Battiston explains that
I previously said in discovery responses that I “individually” control the
nature and quality of the goods sold by Street Designs under the CURLY
GIRL mark. By “individually,” I meant to say I personally did these
things myself rather than delegating such tasks to other people or
entities. I did not mean that statement to be misinterpreted to mean I
acted for my individual interest and not on behalf of MJ Imago and
Street Designs. Battiston testimony, paragraph 22, 38 TTABVUE.
Mr. Battiston also stated:
All of the actions I have taken regarding the CURLY GIRL mark have
been on behalf of MJ Imago rather than done for me as an individual.
Battiston testimony, paragraph 19, 38 TTABVUE.
Massey submits that Mr. Battiston’s testimony is not credible. 43 TTABVUE 3.
However, a litigant-witness has the right to explain or clarify his testimony and
interrogatory answers. Cf. 1 Lane Goldstein Trial Technique § 6:16 (3d ed. Sept. 2025)
(an answering party that has been impeached by his answers to interrogatories can
rehabilitate himself on redirect by offering facts and circumstances which explain,
clarify or obviate his answers to the interrogatories).
25 “A party is required to respond completely to discovery to the best of its ability and to
supplement discovery responses as soon as it becomes aware of new information. Fed. R. Civ.
P. 26(e).” Quality Candy Shoppes/Buddy Squirrel of Wis., Inc. v. Grande Foods, Can. No.
92044407, 2007 TTAB LEXIS 85, at *10 (TTAB 2007).

Opposition No. 91284168 and Cancellation No. 92076077
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In this case, Imago’s evidential admission from its answer to the second amended
petition to cancel and its interrogatory response have been clarified by Mr. Battiston’s
testimony and do not contradict it. Mr. Battiston’s testimony indicates he was acting
on behalf of Imago and Street Designs at all relevant times and was not acting as an
individual. Massey had an opportunity under the Trademark Rules to cross-examine
Mr. Battiston on his testimony declaration but chose not to do so. See Trademark
Rule 2.123 (a) and (c), 37 C.F.R. §§ 2.123(a) and (c).
Massey also points to Street Design’s pending multi-class trademark application,
Ser. No. 97566519, filed on August 26, 2022, under Trademark Act Section 15 U.S.C.
§ 1051(a), for the mark CURLY GIRL (in standard characters). Mr. Battiston signed
the declaration under 18 U.S.C. § 1001, stating that Street Designs is the owner of
the CURLY GIRL mark used in connection with, among other things, shampoo and
hair conditioner. Massey’s NOR, exh. 8, 35 TTABVUE 282. Mr. Battiston’s
declaration testimony indicates that “I caused Street Designs to file the CURLY GIRL
trademark registration application only to protect the investment my companies …
if the TTAB holds that Street Designs, rather than MJ Imago LLC, was the owner of
the CURLY GIRL mark.” Battiston declaration, paragraph 31, 38 TTABVUE.
This trademark application was filed more than a year after the April 21, 2021
Section 8 declaration filing date.26 Our focus is the status of ownership of Reg. No.
4874682 at the time of the filing of the Section 8 affidavit or declaration. See Board’s
26 The Section 8 and 15 declaration was initially filed on December 29, 2020; a subsequent
Section 8 declaration was filed on April 21, 2021 and accepted by the Office. Reg. No. 4874682.

Opposition No. 91284168 and Cancellation No. 92076077
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August 5, 2022 order, 31 TTABVUE. (“Petitioner’s allegations set forth a plausible
claim that Respondent was not the owner of the mark at the time it filed its Section
8 declaration.”). Therefore, this evidence relating to an August 2022 application filed
subsequently to the filing of the Section 8 declaration is not entitled to much
probative weight.27
Massey also objects to the nunc pro tunc licensing document and action in
writing,28 which were discussed and provided by Mr. Battiston in his testimony. 43
TTABVUE 4; Battiston declaration, paragraphs 29 & 30, exhs. 11 & 12, 38 TTABVUE
7, 8, 71, 72, & 76. Mr. Battiston explained that there is an implied license between
Imago and Street Designs in these paragraphs, and supported this testimony by this
documentation.
Massey argues these supporting documents are invalid and seeks to strike them,
also arguing there is no evidence to corroborate the nunc pro tunc actions and that
“statutory requirements cannot be satisfied by nunc pro tunc action,” citing In re
Mother Tucker’s Food Experience (Can.) Inc., 925 F.2d 1402 (Fed. Cir. 1991). 43
TTABVUE 4.
27 We note that this pending trademark application is not within the Board’s jurisdiction. See
IT&T v. Int'l Mobile Machs. Corp., 1983 TTAB LEXIS 227, at *5 (TTAB 1983) (no number in
original) (“The Board is empowered to determine and decide the rights of registration in
interferences, oppositions, concurrent use proceedings, cancellations and appeals from any
final decision of the Examining Attorney in charge of an application. The Board does not have
the authority to render a decision on an issue unless that issue is presented to the Board
pursuant to jurisdictional provisions of Sections 17 and 20 of the Trademark Act.”).
28 Both executed on August 31, 2022, more than a year after the April 21, 2021 Section 8
declaration filing.

Opposition No. 91284168 and Cancellation No. 92076077
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“‘Nunc pro tunc,’ literally speaking, means now for then. A nunc pro tunc in
practice and as meant in law” is to make “now of something which was previously
done, to have effect as of the former date.” Hotel Corp. of Am. v. Inn Am., Inc., 153
USPQ 574, 578 (TTAB 1967). “The lateness of the execution of a nunc pro tunc
[license] is not controlling if it does in fact reflect what actually occurred or was
intended to occur on the past date.” Rite Aid Corp. v. Rite-Way Discount Corp., 1974
TTAB LEXIS 86 at *4 n.3 (TTAB 1974) (no number in original), aff’d 508 F.2d 828
(CCPA 1975). While a later writing can confirm the earlier action, there must be
evidence of the crucial historical facts extrinsic to the writing. Carson Chem. Co. v.
Trice Prods., 1963 TTAB LEXIS 37, at *7-9 (TTAB 1963) (no number in original)
(finding insufficient evidence of nunc pro tunc assignment because there was nothing
in the record to show that applicant and the registrant had, as of January 10, 1959,
entered into any oral agreement relative to the transfer to applicant of registrant’s
rights in the registrations and the registered marks). Mother Tucker’s explains that
technical defects can be cured by nunc pro tunc actions but statutory requirements
such as the proper owner filing the Section 8 affidavit cannot. 925 F.3d at 1404
(“Administrative discretion may enable correction of a technical defect nunc pro tunc,
but failure to comply with a statutory provision offers far less flexibility to the
administrator and the courts.”).
Mr. Battiston testified that “as the sole member of MJ Imago, I have the authority
to act on its behalf, and I have always given permission and an implicit license to
Street Designs to use the mark CURLY GIRL under the continuing control of MJ

Opposition No. 91284168 and Cancellation No. 92076077
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Imago” which he documented in the “nunc pro tunc Action in Writing.” Battiston
declaration, 29, exh. 10, 38 TTABVUE 7, 69. Mr. Battiston also testified as to the
nunc pro tunc license back to the first use of the CURLY GIRL mark. Battiston
declaration, paragraph 29, exh. 11, 38 TTABVUE 29, 71, 72.
We decline to strike these documents on the basis that there is no evidence that
the actions occurred.29 Massey did not cross-examine Mr. Battiston. This unrebutted
testimony from Mr. Battiston is sufficient to establish that an implied license existed,
now memorialized by the express nunc pro tunc license. Mr. Battiston’s testimony
explains that he always considered an implied license to exist between MJ Imago and
Street Designs since first use, that he has always given permission and an implicit
license to Street Designs to use the CURLY GIRL mark under the continuing control
of MJ Imago, that the formulation of CURLY GIRL shampoo and conditioner through
Street Designs has always been under the control of MJ Imago, and that the use of
the CURLY GIRL mark is and always has been done with the permission and implicit
license of MJ Imago. Battiston declaration, paragraphs 24, 25, 28 and 29, 38
TTABVUE.
We find that there was an implied license from Imago to Street Designs to use
the CURLY GIRL mark and Imago exercised sufficient control such that Street
29 It is unclear from this record whether these documents were provided to Massey prior to
trial to supplement Imago’s responses to discovery. However, Massey has not objected on the
basis that these documents were not provided in discovery and are untimely. See e.g., Hunter
Indus. v. Toro Co., Opp. No. 91203612, 2014 TTAB LEXIS 105, at *11 (TTAB 2014)
(sustaining opposer’s objection to documents produced by applicant during its testimony
period as “manifestly untimely”).

Opposition No. 91284168 and Cancellation No. 92076077
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Designs was a related company. As a result, any use of the CURLY GIRL mark by
Street Designs inured to Imago’s benefit, and Imago was the owner of the mark at
the time of the filing of the Section 8 declaration.
In view thereof, Massey’s petition to cancel based on non-ownership fails and is
denied.
VII. Abandonment claim – Naked Licensing
We next consider Massey’s claim that Imago has abandoned its mark by
uncontrolled or “naked” licensing to Street Designs.
A trademark registration may be cancelled if the mark has been abandoned.
Trademark Act § 45, 15 U.S.C. § 1127, provides that a mark shall be deemed
abandoned when “any course of conduct of the owner, including acts of omission as
well as commission, causes the mark to become the generic name for the goods or
services on or in connection with which it is used or otherwise to lose its significance
as a mark.” Uncontrolled or “naked” licensing can result in a loss of significance of a
trademark such that a registration should be cancelled. Paris Glove of Canada Ltd.
v. SBC/Sporto Corp., Can. No. 92044132, at *27 (TTAB 2007). Abandonment due to
naked licensing is involuntary because, unlike abandonment through non-use, an
intent to abandon the mark need not be shown to prove abandonment. MCCARTHY ON
TRADEMARKS § 18:48.
“In a licensing situation, the question to be determined is whether the licensor
exercises sufficient control to guarantee the quality of the goods sold to the public
under the mark. Whether, in fact, sufficient control is exercised is a question of fact

Opposition No. 91284168 and Cancellation No. 92076077
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in each case and the burden of proving lack of control or insufficient control is in the
party claiming the abandonment.” Nestle Co., 1987 TTAB LEXIS 63, at *13-14 (citing
J. Gilson: Trademark Protection and Practice, § 6.01(6) (1984)). In Woodstock’s
Enters. (Calif.) v. Woodstock’s Enters. (Ore.), Can. No. 92021229, 1997 TTAB LEXIS
21, at *21-22 (TTAB 1997), the Board discussed quality control efforts in connection
with licensing and avoiding abandonment:
In order to avoid abandonment of its mark, a licensor need
not show that its quality control efforts are comprehensive
or extensive. Kentucky Fried Chicken Corp. v. Diversified
Packaging Corp., 549 F.2d 368, 387 (5th Cir. 1978)
(“Retention of a trademark requires only minimal quality
control”); Midwest Plastic Fabricators v. Underwriters
Laboratories, 906 F.2d 1568, 1573 (Fed. Cir. 1990)
(defining the control requirement to be “reasonable control,
i.e. such control as is practicable under the circumstances
of the case”). Sufficient control by a licensor may exist
despite the absence of any formal arrangements for
policing the quality of the goods sold or services rendered
under the mark by its licensee(s). See Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 1980 TTAB
LEXIS 14 at *18 (TTAB 1980) (no number in original).
Control may also be adequate where the licensor justifiably
relies on the integrity of the licensee to ensure the
consistent quality of the services performed under the
mark. See Taco Cabana International Inc. v. Two Pesos
Inc., 932 F.2d 1113, 1121 (5th Cir. 1991), aff’d 505 U.S. 763
(1993).
Thus, we look to the record to determine whether control was shown through
(1) formal arrangements; or (2) through a course of performance; or whether there
was (3) a justifiable reliance on the licensee for quality control.
Massey argues that the lack of a written licensing agreement with no express right
to inspect and supervise is evidence of naked licensing. 41 TTABVUE 30-31. Massey
also relies on Imago’s admission (second amended petition to cancel) and discovery

Opposition No. 91284168 and Cancellation No. 92076077
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response (interrogatory response no. 3), discussed above, arguing “there is no
evidence to indicate that David Battiston acted on behalf of MJ Imago to control the
nature and quality of the goods sold by Street Designs under the CURLY GIRL mark”
and “[a]t best it might be said that Street Designs was relying on David Battiston.”
41 TTABVUE 31, 32.
As we indicated supra with our discussion of the non-ownership claim, a written
license agreement is not required; an implied license with adequate control is
sufficient. Nestle Co., 1987 TTAB LEXIS 63, at *16. We also addressed the
interrogatory response and evidential admission referenced by Massey in connection
with the non-ownership claim and found that Mr. Battiston’s testimony clarified that
his efforts were not in his individual capacity but were on behalf of the two entities
he solely owns and controls, Imago and Street Designs. Battiston declaration,
paragraph 19, 38 TTABVUE. Therefore, we consider the quality control measures
taken by Mr. Battiston as being on behalf of the two entities he owns and controls
and not by Mr. Battiston as an individual.
Massey also argues that Imago did not have the “required justifiable reliance” on
Street Designs for quality control. 41 TTABVUE 32.
In determining whether there was justifiable reliance, we look to the relationship
between the licensor and licensee. In cases in which courts have found that a licensor
justifiably relied on a licensee for quality control, some special or close relationship
existed between the parties. See, e.g., Taco Cabana Int’l, Inc., 932 F.2d at 1121
(“[w]here the license parties have engaged in a close working relationship, and may

Opposition No. 91284168 and Cancellation No. 92076077
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justifiably rely on each parties’ intimacy with standards and procedures to ensure
consistent quality, and no actual decline in quality standards is demonstrated, we
would depart from the purpose of the law to find an abandonment simply for want of
all the inspection and control formalities.”); Stock Pot Rest., Inc. v. Stockpot, Inc., 737
F.2d 1576, 1580 (Fed. Cir. 1984) (no abandonment found based on naked license
where licensor had a close relationship to licensee who previously worked as her
“right hand” in the restaurant and the licensee used the same menus, served the same
food, and jointly advertised with the licensor).
Here, the entities are owned by a sole shareholder as indicated by Mr. Battiston’s
testimony. Battiston declaration, paragraph 13, 38 TTABVUE. Mr. Battiston
explained his actions taken on behalf of Imago and Street Designs.30 Battiston
declaration, paragraphs 13-17, 20-21, 38 TTABVUE. Such shared ownership and
management exemplifies the “close relationship” that would support a licensor’s
justifiable reliance on its licensee’s ability and desire to maintain adequate quality
control. Therefore, Imago’s reliance on Street Designs as licensee to uphold quality is
justified.
Massey argues that there is no evidence that David Battiston exercised actual
control over Street Designs as a managing member of Imago and points to the lack of
evidence of any license or other contractual arrangement between Imago and Street
30 Mr. Battiston indicates that the invoicing by Liquid Tech, the manufacturer of the shampoo
and conditioner products, identified “Imago Salon” as the “customer code” for the account and
that invoices are issued to “MJ Imago, LLC.” Battiston declaration, paragraphs 26 & 27, and
exhs. 8, 9a and 9b, 38 TTABVUE.

Opposition No. 91284168 and Cancellation No. 92076077
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Designs “to actually control the nature and quality of the goods.” (emphasis in
original), 41 TTABVUE 32, 33. Massey also argues that except for a “boilerplate
operating agreement,” there is no documentary evidence to indicate that Mr.
Battiston acted on behalf of Imago to control the nature and quality of the goods sold
by Street Designs under the CURLY GIRL mark.31 41 TTABVUE 32.
However, as indicated, the lack of documentation is not conclusive on whether
there is adequate control over the nature and quality of the goods. Nestle Co., 1987
TTAB LEXIS 63, at *14-15,16 (although there was no written license agreement
dealing with the mark, the record reflected that “an affiliated store electing to
participate in the merchandising program offered by applicant becomes a licensee to
use applicant’s various trademarks, including DELI QUIK.”). In instances where
documentation is lacking, the licensor must demonstrate actual control through
inspection or supervision which is necessary to ensure that the quality and type of
goods offered under the mark are consistent and predictable, so that consumers are
not deceived as to the quality of the goods. Woodstock’s Enters. (Calif.), 1997 TTAB
LEXIS 21, at *26-27 (citing Stockpot, Inc. v. Stock Pot Rest., Inc., Can. No. 92013157,
1983 TTAB LEXIS 83, at *22 (TTAB 1983), aff’d, 737 F.2d 1576 (Fed. Cir. 1984)).
Mr. Battiston testified that he “controlled the quality of this shampoo and
conditioner acting through Street Designs under the control of and for the benefit of
MJ Imago,” and directed the sourcing and labeling of the shampoo and conditioner
31 The operating agreements have been provided under Massey’s NOR exh. 27, 35 TTABVUE
633-641. We have no testimony regarding the operating agreements which were provided in
response to a document request.

Opposition No. 91284168 and Cancellation No. 92076077
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on this basis. Battiston declaration, paragraph 25, & exh. 7, 38 TTABVUE. He always
“selected monitored, and approved the formulation of CURLY GIRL shampoo and
conditioner sourced from Liquid Technologies,” id. paragraph 25, and provided tacit
approval of a change in formulation from Liquid Technologies by using the shampoo
and conditioner in the Imago salon to confirm there was no difference in
performance–all “under the control of and for the benefit of MJ Imago.”32 Id.; Massey’s
NOR, exh. 4, Imago’s interrogatory response no. 53, 35 TTABVUE 37. Mr. Battiston
also indicated that “all advertising and publicity of the CURLY GIRL shampoo and
conditioner done by Street Designs” was “under the authorization and implicit license
to use the mark given by me acting on behalf of MJ Imago.”33 Id., paragraph 28.
In his testimony, Mr. Battiston provided documentation relating to what he
describes as “permission and an implicit license” now documented in the form of a
nunc pro tunc “Action in Writing” and a nunc pro tunc license agreement, both
executed on August 31, 2022. Id., paragraph 29, exhs. 10 & 11. The nunc pro tunc
license agreement states that Imago grants to Street Designs a “non-exclusive royalty
free license” to use the CURLY GIRL mark and to source, market, and sell the
licensed goods for Imago’s benefit. Battiston declaration, exh. 11, 38 TTABVUE 71.
The nunc pro tunc license indicates that Imago may inspect Street Designs’ usage of
32 Imago’s interrogatory response indicates that it operates a hair salon under the names
Imago Salon, and Imago, a Salon for Hair. Massey’s NOR, exh. 2, Imago’s interrogatory
response no. 19, 35 TTABVUE 23.
33 Again we note that Massey chose not to cross-examine Mr. Battiston.

Opposition No. 91284168 and Cancellation No. 92076077
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the mark and the quality of the goods to ensure they meet Imago’s standards and are
of good quality. Id. at 72.
If the quality of the goods bearing the mark remains satisfactory, the lack of a
written contract, specific inspection procedures, and other formalities does not
support a finding of abandonment. Stockpot, Inc., 1983 TTAB LEXIS 83, at *22 (“even
in the absence of contractual provisions relating to quality control, the inference of
abandonment is not drawn because satisfactory quality was maintained and, hence,
no deception of purchasers occurred”). Mr. Battiston’s testimony indicates actual
control through inspection and supervision of the shampoo and conditioner product
which he selected and monitored on behalf of Imago. He used the products in the
Imago salon to confirm consistent quality and performance when the formulation
changed.
While there may not have been a formal system of quality control even as
documented with the nunc pro tunc licensing agreement, the sourcing, selection, and
monitoring of the product and the use of the shampoo and conditioner in the Imago
salon to confirm the quality would be sufficient to establish oversight of the quality
of the products used in connection with the CURLY GIRL mark. And there is nothing
in the record to indicate that the shampoo and conditioner were not of acceptable
quality. See Univ. Book Store v. Univ. of Wis. Bd. of Regents, Opp. No. 91084223 1994
TTAB LEXIS 8, at *39 (TTAB 1994) (“the reality of the situation which existed for
many years may best be characterized as that of a royalty-free, nonexclusive, implied
license to use marks ... even without, essentially, a formal system of quality control

Opposition No. 91284168 and Cancellation No. 92076077
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over the clothing and other imprinted merchandise sold by opposers and numerous
third parties, the subject marks were not abandoned by applicant since the quality of
the apparel imprinted with such marks remained at an acceptable level in virtually
all instances”).
Massey has not established that Imago’s quality control efforts for selecting,
sourcing, and monitoring the goods were inadequate or that the quality of CURLY
GIRL shampoo and conditioner was ever unacceptable. Under these circumstances,
we find that Imago has exercised sufficient control over the nature and quality of the
goods offered under the CURLY GIRL mark to avoid abandonment.
The petition to cancel based on abandonment (naked licensing) is denied.34
VIII. Conclusion for all Claims
The opposition is sustained against Ser. No. 90779874 on the likelihood of
confusion claim. The counterclaim to cancel Reg. No. 4284097 is denied as to the false
suggestion of a connection claim. The petition to cancel Reg. No. 4874682 based on
grounds of non-ownership and abandonment is denied.
Decision: Opposition No. 91284168 is sustained on the basis of likelihood of
confusion; the counterclaim in Opposition No. 91284168 is dismissed, and the claims
in Cancellation No. 92076077 are denied.
34 In view of our denial of the counterclaim and petition to cancel, we need not address Imago’s
laches defense pleaded in the answer to the counterclaim and the answer to the petition to
cancel.