Alma Creamery, LLC v. Rupp AG

This Opinion Is Not a
Precedent of the TTAB
Mailed: February 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Alma Creamery, LLC
v.
Rupp AG
_____
Cancellation No. 92080763
_____
Jonathan L.A. Phillips and John T.D. Bathke of Phillips & Bathke, P.C., for Alma
Creamery, LLC.
Donald J. Ersler of Donald J. Ersler, S.C., for Rupp AG.
_____
Before Pologeorgis, Thurmon, and Stanley, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Alma Creamery, LLC (“Petitioner”) seeks cancellation of a registration of the
mark ALMA, in standard characters, for “cheese” in International Class 29,1 on the
1 Registration No. 5521772, issued July 24, 2018. The Registration issued from a request for
extension of protection filed under Trademark Act Section 66(a), 15 U.S.C. § 1141f(a), of Int’l
Reg. No. 0404287. The Registration states, “The English translation of ‘ALMA’ in the mark
is ‘SOUL’.”

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basis of alleged abandonment of the mark under 15 U.S.C. §§ 1064(3), 1064(6), and
alleged priority and likelihood of confusion under 15 U.S.C. § 1052(d). The challenged
Registration is owned by Rupp AG, an Austrian company, that denied the salient
allegations of the petition. The proceeding has been fully briefed and is ready for final
decision. For the reasons explained below, we grant the petition to cancel based on
Petitioner’s abandonment claim. We do not reach the Section 2(d) claim. See, e.g.,
Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018 WL
2113778, at *13 & n.52 (TTAB 2018) (“We find by a preponderance of the evidence
that the mark in each challenged registration has been abandoned. ... [W]e do not
reach the other grounds for cancellation.”)
I. The Record
The record consists of the pleadings and the prosecution file for the challenged
registration. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). In addition,
Petitioner submitted testimony and documentary evidence.2 Respondent submitted a
Notice of Reliance with documentary evidence, but submitted no testimony.3
The entire record has been considered and relevant evidence is discussed in 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
0869805. A Declaration of Use under Trademark Act Section 71, 15 U.S.C. § 1141k, has been
accepted.
2 36, 37, 38, 43, 44 TTABVUE.
3 42 TTABVUE.

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3
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. 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).
Respondent submitted a number of internal business documents with its Notice
of Reliance,4 and Petitioner objected to these documents because they are not public
records of the type appropriately submitted with a Notice of Reliance.5 Respondent
did not address Petitioner’s objections in its brief. We agree with Petitioner that
Respondent’s internal documents are not self-authenticating and are hearsay. The
internal business records cannot be made of record by notice of reliance. Accordingly,
Petitioner’s objections to the internal business records are sustained, and these
records will not be considered. See Calypso Tech., Inc. v. Calypso Cap. Mgmt., LP, No.
91184576, 2011 WL 4090446, at *3 (TTAB 2011) (“A party seeking to make evidence
of record by notice of reliance must follow the rules and case law; if material cannot
be made of record by notice of reliance it will not be considered even if the adverse
party does not specifically object to it, as long as the adverse party does not
specifically treat it as of record such that we can say it has been stipulated into the
record.”).
4 Id. at 66-67, 69, 71, 73-80, 82-83, 85-87, 89, 91-92.
5 45 TTABVUE 31-36 (objecting to Exhibits 2 and 10-17 of Respondent’s Notice of Reliance).

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II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 125-26 n.4 (2014)). A party in the position of plaintiff may petition
to cancel a registration of a mark when such proceedings are within the zone of
interests protected by the statute and the plaintiff has a reasonable belief in damage
that is proximately caused by ongoing registration of the mark. Corcamore, LLC v.
SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020). “The facts regarding [statutory
entitlement], we hold, are part of a petitioner’s case and must be affirmatively
proved.” Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1028 (CCPA 1982).
Respondent argues that Petitioner’s mark is merely geographically descriptive
and has not been used outside the state of Kansas. As a result, Respondent argues,
Petitioner has no trademark rights to assert in this proceeding and no entitlement to
bring this action.6 Petitioner filed an application to register its mark, which is shown
below, and that application was refused based on the challenged Registration.7
6 46 TTABVUE 8.
7 38 TTABVUE 11-15 (Petitioner’s application records); 45 TTABVUE 13 (Petitioner’s brief).

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8
Petitioner’s application was suspended as a result of this proceeding.9 The fact that
Petitioner’s application is effectively blocked by the challenged Registration provides
a proper basis for entitlement to a cause of action. See Hole In 1 Drinks, Inc. v. Lajtay,
No. 92065860, 2020 WL 859853, at *4 (TTAB 2020) (evidence that Respondent’s
registration cited as a bar to registering Petitioner’s application establishes
entitlement); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed.
Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000). Thus,
Petitioner has established its entitlement to a cause of action by a preponderance of
the evidence.
III. Petitioner’s Abandonment Claim
To prevail on its abandonment claim, Petitioner must prove, by a preponderance
of the evidence, that Respondent (1) discontinued use of its mark; and (2) had an
intent not to resume such use. 15 U.S.C. § 1127; Lewis Silkin LLP v. Firebrand LLC,
No. 92067378, 2018 TTAB LEXIS 436, at *11. If Petitioner proves a three-year period
with no use, abandonment is presumed and the burden shifts to Respondent to
8 Application Serial No. 97093072.
9 Suspension Letter dated March 6, 2023, in Serial No. 97093072.

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submit evidence showing that it maintained an intent to resume use during the
period of nonuse of the mark.10 15 U.S.C. § 1127.
Petitioner submitted testimony from Todd Hansen, its CEO, who testified that he
has been involved in the business of making and selling cheese for over twenty years,
but has never seen Respondent’s ALMA cheese in the United States.11
Here, Respondent has failed to properly introduce any admissible evidence to
establish (1) any use of its ALMA mark in commerce during the three-year period of
alleged nonuse, or (2) its intent to resume use.12 In view thereof, we find that
Petitioner has established, by a preponderance of the evidence, that Respondent has
abandoned its ALMA mark with no intention to resume use of the mark.13
Decision: Petitioner has proven its abandonment claim by a preponderance of the
evidence. The Petition to Cancel is granted as to this claim.
10 Petitioner cites to Sections 14(3) and 14(6) as bases for its abandonment claim. We evaluate
the claim under Section 14(3), which refers expressly to abandonment, and Section 45, which
includes the presumption of abandonment upon proof of a three-year period with no use. 15
U.S.C. §§ 1064(3), 1064(6), 1127. Section 14(6) requires proof that the challenged mark “has
never been used in commerce ….”
11 36 TTABVUE 16-17.
12 Respondent does not address intent to resume use in its trial brief.
13 Even if the stricken evidence were self-authenticating such that we could consider the
evidence for what the documents show on their face, the evidence falls far short of proving
sales of Respondent’s cheese in the United States between July 24, 2018 and July 24, 2021,
the three-year period Petitioner focuses on in its abandonment claim. More specifically, the
evidence does not prove any shipments to or sales in the United States at any time, the
evidence shows no activity of any kind during the three-year period of July 24, 2018 to July
24, 2021, and there is no evidence or argument concerning Respondent’s intent to resume use
during the period of nonuse.