Marie Junie St. Clair Bernard v. Daphnee Lagredelle

This Opinion is Not a
Precedent of the TTAB
Mailed: December 17, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Marie Junie St. Clair Bernard
v.
Daphnee Lagredelle
_____
Opposition No. 91289395
_____
Alec Allen Ross of The Trademark Place,
for Marie Junie St. Clair Bernard,
Daphnee Lagredelle, pro se.
_____
Before Goodman, Lavache, and Brock,
Administrative Trademark Judges.
Opinion by Brock, Administrative Trademark Judge:
On Request for Reconsideration
On October 30, 2025, Opposer Marie Junie St. Clair Bernard timely filed a request
for reconsideration of the Board’s final decision in this opposition, pursuant to
Trademark Rule 2.129(c), 37 C.F.R. § 2.129(c).1
1 9 TTABVUE.

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I. Background
On September 30, 2025, in the final decision, the Board dismissed the opposition,
on the ground that Opposer failed to establish her entitlement to a statutory cause of
action.
As plaintiff in the proceeding, it was Opposer’s burden to establish her entitlement
and claims by a preponderance of the evidence. See Shenzhen IVPS Tech. Co. v. Fancy
Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383, at *5-6 (citing B&B
Hardware, Inc. v. Hargis Ind., Inc., 575 U.S. 138, 144, 135 S. Ct. 1293, 191 L. Ed. 2d
222 (2015) (“The party opposing registration bears the burden of proof, see § 2.116(b),
and if that burden cannot be met, the opposed mark must be registered, see 15 U.S.C.
§ 1063(b).”). Opposer did not introduce evidence during her trial period; instead, she
improperly attached exhibits to the notice of opposition. See Trademark Rule 2.122(c),
(d) (with an exception for a pleaded registration, evidence may not be made of record
at the pleading stage); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 317 (2025).
As Opposer did not introduce any evidence during her trial period, there was no
evidence – much less a preponderance – for the Board to consider. Id. Accordingly,
the opposition was dismissed for failure to establish entitlement.

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II. Opposer’s Arguments
Opposer contends that the Board erred in “overlook[ing] evidence of record” that
established Opposer’s entitlement and claims.2 In the alternative, Opposer requests
that the Board “reopen the record for the limited purpose of admitting the exhibits
filed with the Notice of Opposition.”3
The materials attached to the notice of opposition comprise the following:
• screenshot of Opposer’s website, with URL and dated January 23, 2024;
• TSDR printout of abandoned use-based application Ser. No. 90330287 for the
mark FABTAH, showing Opposer as one of four owners;
• TSDR printout of active use-based application Ser. No. 98057183 for the mark
FABTAH, showing Opposer as the owner; and
• images identified by Opposer as “Opposer’s original specimens, filed on
November 19, 2020, showing use in commerce of Opposer’s FABTAH [mark]
for cosmetics nearly two years prior to Applicant’s Application.”4
III. Opposer’s evidence was not filed in compliance with the
relevant rules of practice.
The premise underlying a request for reconsideration is that the Board erred in
reaching its decision, based on record evidence and applicable law. In re Berkeley
Lights, Inc., No. 88895703, 2022 TTAB LEXIS 382, at *2-3. A request may not be used
to introduce into the record additional evidence or to reargue points presented in the
requesting party’s brief on the case. Reconsideration should be limited to a
demonstration that, based on the evidence properly of record and the applicable law,
2 9 TTABVUE 2-3.
3 Id. at 4.
4 1 TTABVUE 8-24.

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the Board’s decision is in error and requires appropriate change. Id., and TBMP
§§ 543 and 1219.01 and cases cited therein.5
In essence, Opposer argues that her evidence was submitted properly and this
evidence established Opposer’s entitlement and claims. Referring to her evidence, i.e.,
the exhibits to the notice of opposition, Opposer asserts: “Trademark Rule 2.122(b)
provides that the pleadings and files of the opposed application are automatically of
record.”6 Opposer “acknowledges that TBMP § 317 provides that exhibits attacked to
pleadings are not, by themselves, evidence unless properly introduced during the trial
period,” yet immediately argues the opposite, stating that “the materials were
already of record in 1 TTABVUE.”7 It is not clear whether Opposer is asserting that
her own applications are automatically of record under Trademark Rule 2.122(b) or
whether Opposer is erroneously conflating the entirety of the “administrative record”
of the proceeding, i.e., all materials available in TTABVUE, with the “evidentiary
record,” e.g., properly introduced testimony, discovery responses, etc.
The exhibits to the notice of opposition include applications of Opposer (and co-
owners), and not the opposed application, i.e., Applicant’s application Serial No.
97570644; these applications are not automatically of record under Trademark Rule
2.122(b). “[W]ith the exception of a plaintiff’s pleaded registrations, which may be
5 To the extent that Opposer repeats her arguments as to entitlement or priority from her
trial brief, this is mere reargument, which is not a proper basis for reconsideration. Opposer
may not use a request for reconsideration to reargue points presented in her brief on the case.
TBMP § 543.
6 9 TTABVUE 2.
7 Id. at 3.

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filed along with the petition to cancel or notice of opposition, documents and other
exhibits may be made of record only during the testimony period of the offering party
in the following two ways: (1) they may be introduced by a witness during the course
of a deposition, and (2) they may be submitted pursuant to a notice of reliance filed
with the Board if they meet the requirements of Trademark Rule 2.120 or 2.122.”
Equine Touch Found., Inc. v. Equinology, Inc., No. 92050044, 2009 TTAB LEXIS 25,
at *7-8.
As to the second possibility regarding Opposer’s reference to the “record,” mere
inclusion of material in the TTABVUE docket for the opposition does not convert that
material into properly introduced evidence at trial. See Trademark Rule 2.123(k)
(“Evidence not obtained and filed in compliance with these sections will not be
considered.”); see also Baseball America Inc. v. Powerplay Sports Ltd., No. 91120166,
2001 TTAB LEXIS 444, at *4 n.8 (materials submitted outside of applicant’s assigned
testimony period and which failed to comply with the Board’s evidentiary rules given
no consideration); Original Appalachian Artworks Inc. v. Streeter, No. 9171402, 1987
TTAB LEXIS 45, at *2 n.3 (stating that a party may not reasonably presume evidence
is of record when that evidence is not offered in accordance with the rules).
Opposer should have entered her documentary evidence and application files into
the evidentiary record during her trial period, as attaching them to her notice of
opposition did not make them part of the trial record.8 See Trademark Rule 2.121(a)
8 Indeed, immediately after filing her notice of opposition, Opposer received the Notice of
Institution from the Board, advising the parties to review “Trademark Rules 2.120(k), 2.121,
2.122, 2.123 and 2.125, as well as TBMP Chapter 700” specifically for information regarding

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(“No testimony shall be taken or evidence presented except during the times assigned,
unless by stipulation of the parties approved by the Board, or upon motion granted
by the Board, or by order of the Board.”).
Opposer attempts to circumvent these clear rules by asserting that the exhibits
attached to its notice of opposition “were expressly cited by the Board in its opinion
at page 3, confirming their presence in the record.”9 As stated previously, the Board
was aware that materials were attached to the notice of opposition and noted them,10
but just as the mere filing of material entered into TTABVUE does not automatically
enter material into the evidentiary record, see Trademark Rule 2.123(k), neither does
the Board’s reference to these materials.
Next, Opposer points to “Applicant’s repeated failure to participate in discovery
or engage in the required conference [which] prevented Opposer from submitting a
formal notice of reliance or testimonial evidence.”11 Initially, we note that Opposer
stated in her brief that “Applicant repeatedly delayed the required discovery
conference,”12 not that Applicant “fail[ed] to … engage in the required conference.”
Despite some inconsistency in Opposer’s characterization of the interaction between
the parties, the discovery conference appears to have occurred, as Opposer served
“the noticing, taking, serving and submitting of evidence and testimony.” 2 TTABVUE 5. The
Notice provided the trial schedule, including Opposer’s trial period.
9 Id. at 3.
10 8 TTABVUE 4.
11 9 TTABVUE 3.
12 5 TTABVUE 2.

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discovery requests upon Applicant.13 To the extent that Applicant “never provided
disclosures or trial testimony,” as the defendant in this proceeding, Applicant is not
required to do so; the burden rests on Opposer to establish her statutory entitlement
to oppose and prove her claims. See B&B Hardware, 575 U.S. 138. We fail to see how
Applicant’s failure to participate precluded Opposer from submitting her own
evidence of entitlement and priority of use during her trial period.
In sum, Opposer failed to properly introduce evidence into the trial record to
substantiate her entitlement and claims. Because this evidence was not properly of
record, we did not err in finding that Opposer could not establish her entitlement.
See, e.g., Game Plan, Inc. v. Uninterrupted IP, LLC, __ F.4th __, 2025 U.S. App.
LEXIS 32224, at *11-13 (Fed. Cir., slip op. issued Dec. 10, 2025) (“[D]ocuments
attached to pleadings or motions are not evidence unless properly introduced during
trial … the Board did not abuse its discretion by declining to consider evidence that
Game Plan had not entered into the trial record … and the Board did not err by
excluding evidence not submitted during the designated trial period.”).
In the alternative, Opposer requests to “reopen the record” to allow Opposer to
introduce evidence. The Board is able to extend the time for a certain action before
the original time or its extension expires. Fed. R. Civ. P. 6(b). See also TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 509 et seq. Similarly,
after the time for an action has passed, the Board can reopen time—during a
proceeding. See TMBP § 509.01. Here, a final decision has issued so there is no
13 Id.

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proceeding to reopen.14 Opposer’s motion to reopen to submit testimony after final
decision is untimely and denied.
Opposer’s request for reconsideration is denied; Opposer’s request to reopen is
denied.
14 In some cases, it is possible to reopen proceedings upon a showing of “excusable neglect.”
Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Mfg. Co., No. 9195170, 2000 TTAB
LEXIS 467, at *10 (“Pursuant to Fed. R. Civ. P. 6(b)(2), the requisite showing for reopening
an expired period is that of excusable neglect.”). The Supreme Court explained that
determining whether a party’s neglect is excusable is “at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s omission” including: (1) the
danger of prejudice to the non-moving party; (2) the length of delay and its potential impact
on judicial proceedings; (3) the reason for the delay, including whether it was within the
reasonable control of the moving party; and (4) whether the moving party has acted in good
faith. See Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
Taking into account the circumstances, equity weighs strongly against setting aside the final
decision and allowing Opposer to retry the case, and moreover, Opposer has neither asserted
nor substantiated excusable neglect. Even if we consider Pioneer, first, Applicant would suffer
prejudice re-litigating a case she has already won. Second, reopening Opposer’s testimony
period to allow Opposer to retry the case would add, at a minimum, seven months to this
proceeding. Third, it was entirely within Opposer’s reasonable control to properly introduce
evidence pursuant to the proceeding schedule and applicable rules and procedures.
Therefore, even if Opposer had argued excusable neglect, the first three Pioneer factors weigh
heavily against reopening proceedings, and the fourth factor is neutral as there is no evidence
that Opposer acted in good or bad faith in failing to comply with the Board’s schedule, rules
and procedures. Accordingly, we find that Opposer has failed to establish excusable neglect
as necessary to reopen proceedings for a retrial.