Myka Designs Inc. v. TGEcommerce Kft.

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This Opinion Is Not a
Precedent of the TTAB

Mailed: March 3, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Myka Designs Inc.
v.
TGEcommerce Kft.

Opposition No. 91280069

Saul Acherman and John Marh of Jafari Law Group for Myka Designs Inc.

Jonathan Agmon of Agmon Law, P.C. for TGEcommerce Kft.

Before Pologeorgis, Dunn, and Allard, Administrative Trademark Judges.
Opinion by Dunn, Administrative Trademark Judge:

TGEcommerce Kft. (Applicant), a limited lability company of Hungary, seeks
registration on the Principal Register of the mark MYKA (in standard characters) for:

Jewelry for sale in online stores; personalized and customizable jewelry for sale
in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry;
leather jewelry and accessory boxes; jewelry plated with precious metals; key
chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not
of precious metal; cufflinks; watches; wrist watches; watch bands and straps;
watches and jewelry; watches and straps for watches; earrings; ankle
bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry;
diamond jewelry, in International Class 14, and

Opposition No. 91280069.
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On-line retail store services featuring jewelry, in International Class 35.1
Myka Designs Inc. (Opposer), a corporation of Canada, filed a notice of opposition2
to registration of Applicant’s mark, which alleges likelihood of confusion under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s previously
used mark MYKA, the subject of common law use and a pending application3 for:
Artificial gemstones; Boxes for timepieces; Charms for key rings or key chains;
Gemstones; Imitation jewellery; Imitation pearls; Jewellery; Jewellery boxes;
Key chains; Key rings; Ornaments of precious metal in the nature of jewelry;
Pearls; Precious metals; Statues of precious metal and their alloys; Timepieces,
in International Class 14; and
Retail store services featuring luggage, jewellery, clothes, art materials, in
International Class 35.
1 Application Serial No. 90692533 filed May 5, 2021 under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the
mark in commerce, and subsequently amended to claim, in both classes, first use anywhere
since at least as early as July 11, 2021 and use in commerce since at least as early as August
3, 2021.
References to the application are to the downloadable .pdf version of documents available
from the USPTO’s TSDR (Trademark Status and Document Retrieval) database. The
TTABVUE citations refer to the Board’s electronic docket, with the first number referring to
the docket entry and the second number, if applicable, referring to the page within the entry.
2 1 TTABVUE.
3 Application Serial No. 97036911 filed September 21, 2021 also includes goods in
International Class 18 and 25, and additional services in International Class 35. While all
four classes are listed in the ESTTA cover sheet for the notice of opposition, the attached
allegations assert a likelihood of confusion with the “jewellry-related” goods and services
of International Class 14 and 35 listed above (1 TTABVUE 10, 17). With respect to
International Class 18, Applicant alleges a bona fide intention to use the mark in commerce.
With respect to International Class 14, 25, and 35, Applicant claims dates of first use
anywhere since at least as early as 1988 and use in commerce since at least as early as 1993.

Opposition No. 91280069.
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Applicant’s answer admits Opposer offers jewelry online to customers in Canada
and that the subject application was cited against Opposer, but otherwise denies the
salient allegations in the notice of opposition.4
On February 1, 2024, the parties filed a joint stipulation, subsequently approved
by the Board, that neither party will introduce into evidence a document that (1) was
not produced in discovery, provided that the requesting party did not already have
the document, and that the document is not publicly freely available and (2) has been
redacted, except for information related to accounts or phone numbers of the parties.5
The case is fully briefed.
We sustain the opposition.
I. THE RECORD
The record includes the pleadings; the previously mentioned stipulation; the
submissions of the parties during their respective trial periods; and pursuant to
Trademark Rule 2.122(b), 37 C.F.R. §2.122(b), the file history of the opposed
application.
Although we do not list its contents, the entire record has been carefully
considered, and relevant evidence is discussed throughout this opinion. 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
4 4 TTABVUE 3, 5, admissions at Pars. 6, 13.
5 21 TTABVUE (stipulation) and 23 TTABVUE (Board approval).

Opposition No. 91280069.
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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).
After Opposer’s rebuttal testimony was submitted, Applicant filed a motion to
strike it in part on various grounds.6 With respect to the procedural objection to
documents produced by Applicant during discovery (Exs. 48-1 and 48-2), the Board
granted the motion to strike because those documents were not subject to submission
via notice of reliance and had not been otherwise authenticated.7 We have given no
consideration to the stricken documents.
In an appendix to its brief, Applicant renewed several substantive objections to
Opposer’s rebuttal evidence and raised several new objections based on lack of
foundation or authentication, and violation of the stipulation against submission of
redacted documents not related to accounts or phone numbers of the parties.8 We
agree with Opposer that the new objections raising curable defects are untimely and
have been waived.9 Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB
LEXIS 464, at *13 (“Finally, we overrule Applicant’s objections to the lack of
foundation for Opposer’s Internet materials in Exhibit 3 to the Sabhnani Declaration
because Applicant’s objection is a procedural one that was waived when Applicant did
not timely move to strike the pertinent portion of the Sabhnani Declaration following
6 44 TTABVUE.
7 50 TTABVUE 6-8.
8 58 TTABVUE 45-59.
9 59 TTABVUE 38-39.

Opposition No. 91280069.
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its receipt.”).
Because the stipulation is not a blanket prohibition against redaction, the mere
presence of redaction in the rebuttal exhibits does not establish non-compliance with
the stipulation. Applicant does not explain how the redaction is improper and we
decline to guess.10 We need not address Opposer’s argument that the redaction was
proper; Applicant failed, as movant, to support its motion.11
Applicant otherwise moves to strike rebuttal evidence as hearsay, irrelevant, and
beyond the scope of proper rebuttal because it is cumulative, and repetitive of
evidence submitted during Opposer’s case in chief.12 While we prefer reference to the
original record, the objection as to the cumulative evidence is denied; we find the
evidence responsive to points raised in Applicant’s brief and so it serves as proper
rebuttal.
With respect to the remaining objections, none are outcome determinative and
concern the weight the documents and testimony should be given rather than their
admissibility. The Board is capable of weighing the relevance and strength or
weakness of the objected-to testimony and exhibits in this specific case, including any
inherent limitations, and this precludes the need to strike that evidence. Norris v.
PAVE: Promoting Awareness, Victim Empowerment, No. 91234909, 2019 TTAB
LEXIS 345, at *4. As a result, we choose not to make specific rulings on each and
10 58 TTABVUE
11 59 TTABVUE 36-37.
12 58 TTABVUE 45-46.

Opposition No. 91280069.
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every objection. As necessary and appropriate, we point out in this decision any
limitations on the evidence. See Alcatraz Media, Inc. v. Chesapeake Marine Tours
Inc., No. 92050879, 2013 TTAB LEXIS 347, at *13-14, aff’d mem., 565 F. App’x 900
(Fed. Cir. 2014).
II. APPLICANT’S MOTION TO AMEND
Embedded in Applicant’s trial brief is a contingent motion to amend the subject
application’s goods and services. Applicant moves:13
Accordingly, if the Board finds that Applicant’s Application is not entitled to
registration given that certain specific International Class 014 goods are
substantially identical, Applicant requests the Board to allow it time in which
to file a motion to amend the application to conform to the finding of the Board;
and in the alternative, requests the Board’s consent for Applicant to amend
Applicant’s Specification of Goods International Class 014 deleting Applicant’s
Specification of Goods in International Class except the item “personalized and
customizable jewelry for sale in online stores” and amend its International
Class 035 Specification of Services from “On-line retail store services featuring
jewelry” to “On-line retail store services featuring personalized and customized
jewelry”. In the alternative, Applicant requests the Board to make use of its
power to make such restrictions as it may deem necessary to the goods or
services identified in the Application.
The motion does not contain Opposer’s express or implied consent to the proposed
amendment nor does it indicate any attempt by Applicant to obtain such consent.
Trademark Rule 2.133(a), 37 CFR 2.133(a) provides that “[a]n application subject to
an opposition may not be amended in substance ... except with the consent of the
other party or parties and the approval of the Trademark Trial and Appeal Board, or
upon motion granted by the Board.” In the absence of consent, a motion to amend an
application “should be made prior to trial to give the opposer fair notice.” City of
13 58 TTABVUE 39.

Opposition No. 91280069.
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London Distillery, Ltd. v. Hayman Grp. Ltd., No. 91235280, 2020 TTAB LEXIS 501,
at *40. Accord Pers. Data Sys. v. Parameter Driven Software., 1991 TTAB LEXIS 26,
at *6-7 (“That is to say, the Board will exercise its discretion under Trademark Rule
2.133(b) only where the petitioner or opposer has been put on notice during the trial
period that the Board will be considering the issue of confusion with respect to a
recitation of goods or services narrower in scope than that which was shown in the
registration or application at the commencement of the proceeding.”).
Here, the trial is over, and Opposer submitted its brief arguing why its evidence
shows a likelihood of confusion between its MYKA mark for jewelry and Applicant’s
mark for the goods and services described in the application. The issue of likelihood
of confusion with goods and services narrower than those in the application has not
been tried. “To allow Applicant to delete [goods and services] from the application at
this late date is unfair to Opposer.” Monster Energy Co. v. Lo, No. 91225050, 2023
TTAB LEXIS 14, at *12-13.
Applicant’s motion to amend the subject application is denied as untimely.
III. ENTITLEMENT TO A STATUTORY CAUSE OF ACTION
Entitlement to a statutory cause of action is a requirement that must be proven
by the plaintiff in every inter partes case. See Australian Therapeutic Supplies Pty.
Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014)). To establish
entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest
falling within the zone of interests protected by the statute, and (ii) proximate
causation. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020).

Opposition No. 91280069.
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Demonstrating a real interest in opposing registration of a mark satisfies the zone of-
interests requirement, and demonstrating a reasonable belief in damage by the
registration of a mark demonstrates damage proximately caused by registration of
the mark. Id.
Here, Opposer submitted a copy of the Office Action citing the potential conflict
between the MYKA mark in Opposer’s pending Application Serial No. 97036911 and
Applicant’s MYKA mark.14 See Australian Therapeutic, 965 F.3d at 1375 (“A
[plaintiff] may demonstrate a real interest and reasonable belief of damage where the
[plaintiff] has filed a trademark application that is refused registration based on a
likelihood of confusion with the mark subject to [opposition].”); Major League Soccer,
L.L.C. v. F.C. Internazionale Milano S.p.A., No. 91247160, 2020 TTAB LEXIS 502, at
*17 (“Opposer pleads ownership of several applications for marks containing the term
INTER which have been refused registration based on the involved application and
these pleaded facts help show Opposer is statutorily entitled to bring this
opposition”). As set forth above, Applicant’s answer admits its application was cited
as a bar to Opposer’s application.15
Opposer has established, by a preponderance of the evidence, its entitlement to
bring the likelihood of confusion claim.
14 26 TTABVUE 38-43, at 42.
15 4 TTABVUE 5.

Opposition No. 91280069.
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IV. LIKELIHOOD OF CONFUSION CLAIM
Under Section 2(d) of the Trademark Act, a mark may not be registered if it
“consists of or comprises a mark which so resembles a mark registered in the Patent
and Trademark Office, or a mark or trade name previously used in the United States
by another and not abandoned, as to be likely, when used on or in connection with
the goods of the applicant, to cause confusion ….” 15 U.S.C. § 1052(d). As the plaintiff
in this proceeding, Opposer bears the burden of proof. Bose Corp. v. QSC Audio
Prods., 293 F.3d 1367, 1370 (Fed. Cir. 2002).
A. Priority
Priority under Trademark Section 2(d) requires either a registration or “a mark
or trade name previously used.” 15 U.S.C. 1052(d). “The party who first uses a mark
in commerce is said to have priority over other users.” Dollar Fin. Grp., Inc. v. Brittex
Fin., Inc., 132 F.4th 1363, 1369 (Fed. Cir. 2025) quoting Hana Fin., Inc. v. Hana
Bank, 574 U.S. 418, 419 (2015). In a case involving common law rights, “the decision
as to priority is made in accordance with the preponderance of the evidence.” Hydro-
Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d 1470, 1472 (Fed. Cir. 1987).
Because Applicant may rely on the filing date of its subject application to establish
the applied-for mark’s constructive date of first use, and Applicant does not contend
that it is entitled to an earlier date, Opposer must establish priority earlier than
Applicant’s May 5, 2021 filing date.16 See Trademark Act Section 7(c), 15 U.S.C.
16 Applicant’s response to a request for admission (29 TTABVUE 5) admits that its mark “was
first used in commerce no earlier than August 3, 2021,” the same date alleged in its
amendment to allege use.

Opposition No. 91280069.
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§ 1057(c) (filing an application constitutes constructive use of the mark conferring a
right of priority contingent upon registration); Syngenta Crop Protection, Inc. v. Bio-
Chek, LLC, Opp. No. 91175091, 2009 TTAB LEXIS 70, at *18.
“To establish priority, the [plaintiff] must show proprietary rights in the mark
that produce a likelihood of confusion. These proprietary rights may arise from a prior
registration, prior trademark or service mark use, prior use as a trade name, prior
use analogous to trademark or service mark use, or any other use sufficient to
establish proprietary rights.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 1162 (Fed.
Cir. 2002) (citation omitted). Opposer has not alleged use analogous to trademark use
so we focus on actual use. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022
TTAB LEXIS 328, at *39 (“Reliance on priority through analogous use must be
pleaded.”).
In support of its common law priority, Opposer Myka Designs submitted the
testimony declaration of Michael Bremer, Opposer’s founding member and President,
averring that Opposer began as a family business in Canada comprising Bremer and
his wife Maja Bremer, a jewelry designer; that Bremer and his wife launched their
first jewelry collection using the MYKA mark in 1987 as a part-time business; in
1991, Bremer and his wife devoted themselves full-time to the business and had their
first professional product launch in Canada; that in 1993, Bremer and his wife had
their first sales to the United States; that since 1993 the mark MYKA has been
continuously used on the goods themselves and on product packaging in U.S.
commerce; that in 1993 Bremer and his wife incorporated the business in Canada as

Opposition No. 91280069.
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Myka Designs, Inc. and assigned “any and all rights in the MYKA trademarks” to the
corporation; that the mark MYKA has been continuously used on jewelry for sale in
online stores; and the mark MYKA also is used on displays at trade shows, including
in the United States; on marketing materials, on social media and since 2004 on
Opposer’s e-commerce website mykadesigns.com.17
The testimony declaration is supported by invoices to U.S. customers for jewelry
dated 1993, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2005, 2006, 2007,
2008, 2009, 2010, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022 and 2023;18
photographs of the goods and product displays bearing the mark;19 photographs of
packaging bearing the mark;20 sample advertisements for MYKA jewelry distributed
in the United States;21 sample website and social media pages of Opposer advertising
MYKA jewelry;22 customer lists;23 and summaries of sales and marketing
expenditures, including annual U.S. sales from 2016 to 2023.24
17 28 TTABVUE 3-7.
18 28 TTABVUE 5, 8; 24 TTABVUE 4-214.
19 28 TTABVUE 5, 7, 11, 27, 30-31, 33-36, 38, 57-64, 92-95.
20 28 TTABVUE 7; 25-26, 29, 32, 37, 39-44, 47-56.
21 28 TTABVUE 9, 11; 67-77, 80-90.
22 28 TTABVUE 9-10; 98-109, 119-148.
23 28 TTABVUE 10; 24 TTABVUE 225-232.
24 28 TTABVUE 15; 24 TTABVUE 234-236.

Opposition No. 91280069.
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Applicant contends that this evidence is insufficient to establish priority because
Opposer is not the owner of the MYKA mark and because Opposer has not shown
prior use of the term MYKA.25 We find neither of these arguments persuasive.
Applicant’s non-ownership argument is based on Opposer’s alleged statement in
its application that Opposer did not devise the mark, which Applicant describes as a
statement that limits Opposer’s claim, and Opposer’s testimony that Bremer and his
wife Maja, co-founders of Opposer, first used the MYKA mark, and later assigned the
mark to Opposer, the corporation they created.26 We find the first point to be
irrelevant to ownership of the MYKA mark. Opposer’s application includes the
“miscellaneous statement:”27
THE WORDING “MYKA” WAS THOUGHT OF BY A FAMILY MEMBER
OVER 30 YEARS AGO AND IS A COMBINATION OF OWNERS NAMES
MAJA & MICHAEL = MYKA
“It is axiomatic in trademark law that ownership of a mark is predicated on
priority of use in commerce.” Lyons v. Am. Coll. of Veterinary Sports Med. & Rehab.,
859 F.3d 1023, 1027 (Fed. Cir. 2017), cert. denied, 1583 U.S. 933 (2017). There is no
dispute that Bremer and his wife first used the MYKA mark, and Opposer currently
uses the MYKA mark. The statement in the application regarding the origin of the
term MYKA is not a restriction of Opposer’s claim of ownership, does not allege that
the person who coined the term ever used or intended to use the term on jewelry or
25 58 TTABVUE 22-39. Because we have no jurisdiction over Opposer’s pending later-filed
application, we will not address arguments (58 TTABVUE 22, 25-27) about its registrability.
Home Juice Co. v. Runglin Cos., No. 92014533, 1986 TTAB LEXIS 22, at *5 n.7.
26 58 TTABVUE 23, and n.81.
27 26 TTABVUE 129.

Opposition No. 91280069.
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retail jewelry services, and so has nothing to do with ownership of the mark.
Applicant’s citation28 to legal guidance on admissions in applications and ambiguity
in descriptions of the mark have no bearing here.
“Neither a formal assignment nor recordation of an assignment in the Patent and
Trademark Office is necessary to pass title or ownership to common law or statutory
trademark rights.” Huang v. Tzu Wei Chen Food Co. Ltd., 849 F.2d 1458, 1460 (Fed.
Cir. 1988) quoting Am. Mfg. Co. v. Phase Indus., No. 92010519, 1976 TTAB LEXIS
98; Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1132 (CCPA 1978)
(“[A]n oral assignment [of common law rights] can be proven by either direct or
circumstantial evidence.”). Accord J. Thomas McCarthy, 2 McCarthy on Trademarks
and Unfair Competition, § 18:4 (5th ed., December 2025 update) (“McCarthy”) (“An
assignment in writing is not necessary to pass common law rights in a trademark. If
there is no documentary evidence of an assignment, it may be proven by the clear and
uncontradicted oral testimony of a person in a position to have actual knowledge.”).
In view of this clear authority, we disagree with Applicant’s contention that
Opposer has failed to show its ownership of the mark because the record lacks a
written assignment.29 Applicant does not allege that anyone but Opposer uses the
mark, or has done so since Opposer’s formation in 1993. Bremer’s testimony
regarding he and his wife’s formation of Opposer, and the assignment of the mark
from the family business created by them to the corporation they created, was clear
28 58 TTABVUE 23 and n. 81.
29 58 TTABVUE 23-24.

Opposition No. 91280069.
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and convincing, and is sufficient to show that Opposer has been the owner of the mark
since 1993.
With respect to the argument that Opposer has not shown prior use of the term
MYKA, Applicant contends:30
Opposer’s evidence fails to establish continuous use of MYKA as a standalone
word mark. The invoices and specimens do not link specific sales to the word
mark MYKA, and most records show only the use of the composite or design
marks. It is unclear which of Opposer’s products were sold in US commerce
after 2004. For example, 28 TTABVUE 34 shows what appears to be a chain
with the stylized MYKA mark thereon with the serial number B2082RM.
However, none of the invoices provided by Opposer reflect this serial number
and therefore there is no evidence that this product was sold in US commerce.
As a preliminary matter, we point out that Opposer’s priority does not depend on
its prior use of the mark being continuous, so long as the use has not been abandoned.
See W. Fla. Seafood, Inc. v. Jet Rests., Inc., 31 F.3d 1122, 1128 (Fed. Cir. 1994)
(Section 2(d) “does not speak of ‘continuous use,’ but rather of whether the mark or
trade name has been ‘previously used in the United States by another and not
abandoned.’”). Here, Applicant points to no defect or inconsistency in Opposer’s
testimony and exhibits regarding its use of the MYKA mark which would warrant
the additional documentation (such as “invoices and specimens [that] link specific
sales to the word mark MYKA”) that Applicant suggests is necessary.
As described earlier, Opposer submitted photos of jewelry bearing the MYKA
mark directly or on packaging or labels, testimony as to how and when and to whom
the MYKA jewelry was advertised and sold, a range of invoices over decades
30 58 TTABVUE 27.

Opposition No. 91280069.
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corroborating that the MYKA jewelry has been sold to U.S. customers since 1993, and
annual sales summaries. Bremer testified that since 1993 the mark MYKA has been
continuously used on the goods themselves. Specifically, he averred:31
As early as 1993, the jewelry design products we were selling and shipping
throughout the United States included the MYKA Trademarks; specifically,
our jewelry products would be branded with the term MYKA, by engraving the
mark MYKA on the molds themselves, so that each jewelry product would be
physically cast with MYKA on the product itself.
The record includes examples of the mark on the goods as shown below:
32
31 28 TTABVUE 5.
32 28 TTABVUE 30.

Opposition No. 91280069.
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33
34
Bremer also testified:
As early as 1993, Myka [Designs] has and continues to use labels affixed to
product packaging that display the MYKA Trademarks. Further, our product
packaging itself has since 1993 [] continued to display the MYKA mark.
The record includes examples of the mark on the labels and packaging for the
goods as shown below:
33 28 TTABVUE 34.
34 28 TTABVUE 59.

Opposition No. 91280069
Ilyka
OUVER, CANN
35
Myka
MYKA
36
35 28 TTABVUE 32.
36 28 TTABVUE 64.
- 17 -

Opposition No. 91280069.
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With respect to its services, Bremer testified:37
[A]t least as early as 2004 Myka Designs has been and continues to offer on-
line retail store services featuring jewelry.
The record includes exemplary excerpts from Opposer’s website advertising the
retail jewelry services under the MYKA mark.
37 28 TTABVUE 6.

Opposition No. 91280069.
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38
39
The evidence is sufficient to demonstrate Opposer’s use of the mark MYKA in
commerce on jewelry since 1993 and retail jewelry store services since 2004. Oral
38 28 TTABVUE 107.
39 28 TTABVUE 106.

Opposition No. 91280069.
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testimony, if sufficiently probative, is normally satisfactory to establish priority of
use. Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 130 (CCPA 1965).
Accord Araujo v. Framboise Holdings Inc., 99 F.4th 1377, 1381 (Fed. Cir. 2024) (“When
presented with the evidence provided in the Extrakt declaration and nothing to
contradict it, a reasonable mind could conclude that Framboise had established its
priority date by a preponderance of the evidence.”). Here, as shown by the
representative examples above, Opposer offered ample documentary corroboration of
the testimony showing use of the mark MYKA on jewelry, the labels directly
associated with the jewelry, and advertising Opposer’s online retail jewelry services.
Applicant’s response to this evidence does not dispute Opposer’s use of the mark
MYKA on jewelry since 1993 or its online store since 2004. Instead, Applicant
contends that Opposer’s different displays of the MYKA mark over the years are
equivalent to different marks, and because Opposer has failed to meet the strict
requirements for tacking, has not shown priority of use.40 Applicant argues:41
Opposer’s Prior Marks comprise (i) a graphical design featuring a circle, and a
highly stylized letter M [ ]; (ii) a design featuring a circle and a highly
stylized rendering of what appears to be the word Myka [ ]; (iii) the
design in (i) with the word MYKA and below the words “BY MAYA AND
MICHAEL BREMER” [. ]. Two other uses appear in
the evidence: (iv) found online - - which Opposer did not plead
40 58 TTABVUE 15, 27-28, 31-39.
41 58 TTABVUE 27. To make the argument easier to follow, we added the mark described in
brackets following each description.

Opposition No. 91280069.
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was used on its goods, and (v) its company name MYKA DESIGNS INC. which
appears on its invoices, nearly always next to one of Opposer’s Prior Marks.
To these uses of the mark we would add the use of the MYKA mark in block lettering
as shown above and reproduced here: .
The doctrine of tacking allows “trademark owners [], in limited circumstances, [to]
‘clothe a new mark with the priority position of an older mark.” Bertini v. Apple Inc.,
63 F.4th 1373, 1377 (Fed. Cir. 2023) quoting Hana Fin., Inc., 574 U.S. at 419-20.
Without tacking “a trademark owner’s priority in his mark would be reduced each
time he made the slightest alteration to the mark, which would discourage him from
altering the mark in response to changing consumer preferences, evolving aesthetic
developments, or new advertising and marketing styles.” Id. (citation omitted).
Tacking is permitted when the new and revised mark are legal equivalents, and
“‘create the same, continuing commercial impression’ so that consumers ‘consider
both as the same mark.’” Id. (citation omitted).
This opposition differs from the usual tacking case because, as shown by the
testimony and exhibits, Opposer’s “original” use of the MYKA mark on its jewelry and
retail jewelry services has remained the same. As set forth above, Applicant cites as
the “revised” mark the uses of the MYKA mark with the separate stylized M design
or the additional informative wording as seen on Opposer’s website, advertising and
invoices. However, because the original mark remains in use, the question of whether
the revised mark creates the same continuing commercial impression to the original
mark does not arise. To put it another way, Applicant has added to its uses of the

Opposition No. 91280069.
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MYKA in certain contexts while continuing its use of the MYKA mark on the jewelry
goods and services.
Applicant also contends that the differences between the MYKA marks as used in
two different fonts and with the oval background design, as set forth below and used
on the jewelry goods and services, result in the marks not having the same continuing
commercial impression, and so Opposer cannot establish prior use. We cannot agree.
The use of a common geometric shape as a background generally is not considered
a distinctive element of a mark. See In re Dixie Rests. Inc., 105 F.3d 1405, 1407 (Fed.
Cir. 1997) (“Neither the design element nor the generic term ‘café’ offers sufficient
distinctiveness to create a different commercial impression. Indeed, as the board
found, the design is an ordinary geometric shape that serves as a background for the
word mark.”); In re Kysela Pere et Fils Ltd., No. 77686637, 2011 TTAB 70, at *19
(“And certainly the oval designs in the marks are merely background or ‘carrier’
elements, and do not make a strong commercial impression.”). Accord McCarthy, at
7:29 (“The rationale [for the rule that common geometric shapes are regarded as not
being inherently distinctive] is that such designs have been so widely and commonly
used as mere decorative graphic elements that the origin-indicating ability of such
designs has been diminished.”).
In the same way, the font, or stylization, used to display a literal term generally
is not considered a distinctive part of the mark. See Bos. Red Sox Baseball Club LP

Opposition No. 91280069.
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v. Sherman, No. 91172268, 2008 TTAB LEXIS 67, at *33 (“It has frequently been
stated that it is the word portion of marks, rather than the particular display of the
words, that is likely to have a greater impact on purchasers and be remembered by
them.”); In re 1st USA Realty Professionals Inc., No. 78553715, 2007 TTAB LEXIS
73, at *15 (“The registered mark is for the words FIRST USA in a slightly stylized
typestyle. However, the stylization is so minimal that it does not make a real
commercial impression. Because of this, consumers will view the mark as merely the
words FIRST USA.”). Accord McCarthy at 17:26 (“Trademark rights inure in the basic
commercial impression created by a mark, not in any particular format or style.”).
We find that Opposer has displayed its MYKA mark as both and
, sometimes at the same time, and has done so since 1993 with the goods
and 2004 with the services. Because Opposer’s use has been sufficient for priority, we
need not consider whether its use of its tradename MYKA DESIGNS also functions
as a trademark. However, we reproduce an excerpt from Applicant’s brief offered to
demonstrate mere trade name use:42
42 58 TTABVUE 30.

Opposition No. 91280069.
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This use by Opposer over three consecutive years shows use of both the cursive
and block letter displays of the MYKA mark. Similarly, Applicant offered webpages
to show that Opposer uses a modified mark, but some of the pages in fact show both:

Opposition No. 91280069.
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43
In sum, we find that Opposer’s testimony and supporting documents establish
Opposer’s use of the MYKA mark on jewelry since 1993 and in connection with retail
jewelry services since 2004. We reject Applicant’s contentions that Opposer does not
own the mark or that its varied displays of the MYKA mark are insufficient for
priority. In considering the testimony and evidence of priority, “we look at the
evidence as a whole, as if each piece of evidence were part of a puzzle which when
fitted together, establishes prior use.” See W. Fla. Florida Seafood Inc., 31 F.3d at
1125-26.
43 51 TTABVUE 54.

Opposition No. 91280069.
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Opposer has established, by a preponderance of the evidence, prior use of its
common law MYKA mark for jewelry goods and services necessary for its likelihood
of confusion claim.
B. Likelihood Of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (DuPont). “Not all of the
DuPont factors are relevant to every case,” and we consider each DuPont factor for
which there are arguments and evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367,
1372 (Fed. Cir. 2018). As noted earlier, Opposer bears the burden of proof. Bose Corp.,
293 F.3d at 1370.
In this case, that burden is easier to meet in view of Applicant’s decision to argue
only that Opposer cannot establish priority of use. More specifically, Applicant’s brief
lists the “statement of the issues” as whether Opposer is the owner of the MYKA
mark and whether Opposer proved priority, argues only those issues, and concludes
that the opposition should be dismissed because Opposer lacks ownership of the mark
and failed to prove its priority.44 Accordingly, we need only briefly address whether
Opposer has demonstrated a likelihood of confusion as Applicant appears to have
conceded the issue.
44 58 TTABVUE 3 (table of contents), 7 (statement of the issues), 40 (conclusion).

Opposition No. 91280069.
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1. Similarity or Dissimilarity of the Marks
The first DuPont factor concerns “[t]he similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression.”
DuPont, 476 F.2d at 1361. As set forth above, Opposer has established prior common
law rights in the term MYKA. This is the identical literal term that Applicant seeks
to register. Moreover, Applicant seeks registration in standard character form,
meaning it would be free to adopt Opposer’s stylization, making the marks identical
except for the absence of the oval background. See In re Viterra Inc., 671 F.3d 1358,
1363-64 (Fed. Cir. 2012) (“First, to the extent the Board simply held that a standard
character mark is not limited to any particular font, size, style, or color, it is entirely
consistent with our case law, the relevant regulations, and the TMEP. Indeed, we
previously have rejected an applicant’s argument that its standard character mark
was distinct from a mark registered in stylized lettering with a design.”) (internal
citation omitted).
Because the oval background is not a distinctive feature, we find Opposer’s
common law MYKA mark creates the same commercial impression as, and is legally
identical to Applicant’s MYKA mark.
This factor weighs heavily in favor of finding confusion is likely.
2. Similarity or Dissimilarity of the Goods and Services
We turn next to DuPont factor two regarding the similarity or dissimilarity of the
parties’ respective goods and services. DuPont, 476 F.2d at 1361. Our determination
must be based on the identification of goods and services in the subject application.
See Stone Lion Cap. Parts., LP v. Lion Cap. LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014)

Opposition No. 91280069.
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(“[T]he services recited in the application determine the scope of the post-grant
benefit of registration.”). As set forth earlier, Applicant seeks registration for:
Jewelry for sale in online stores; personalized and customizable jewelry for sale
in online stores; jewelry, namely, bracelets, necklaces, chains, rings; jewelry;
leather jewelry and accessory boxes; jewelry plated with precious metals; key
chains for use as jewelry; jewelry charms; clasps for jewelry; jewelry cases not
of precious metal; cufflinks; watches; wrist watches; watch bands and straps;
watches and jewelry; watches and straps for watches; earrings; ankle
bracelets; bracelets of precious metal; silver thread jewelry; gold jewelry;
diamond jewelry, in International Class 14, and
.
On-line retail store services featuring jewelry, in International Class 35.
“Because each class in Applicant’s multi-class application is, in effect, a separate
application, we consider each class separately, and determine whether Opposer has
shown a likelihood of confusion with respect to each.” North Face Apparel Corp. v.
Sanyang Indus. Co., No. 91187593, 2015 TTAB LEXIS 328, at *32. However, there is
no need to establish a likelihood of confusion as to each good or service in each class;
likely confusion as to even one good or service identified in each class in the
application is sufficient to establish a likelihood of confusion as to the entire class.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336 (CCPA 1981).
Opposer’s goods offered under the MYKA mark were addressed in Bremer’s
testimony:45
Myka Designs’ products offered and sold under the MYKA Trademarks include
jewelry, bracelets, necklaces, chains, rings, leather jewelry and accessory
boxes, jewelry plated with precious metals, key chains for use as jewelry,
jewelry charms, clasps for jewelry, jewelry cases, cufflinks, watches and straps
for watches, earrings, ankle bracelets, artificial gemstones, boxes for
timepieces, charms for key rings or key chains, gemstones, imitation jewelry,
imitation pearls, jewelry, jewelry boxes, key chains, key rings, ornaments of
45 28 TTABVUE 6.

Opposition No. 91280069.
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precious metal in the nature of jewelry, pearls, precious metals, statues of
precious metal and their alloys, and timepieces.
Based on this uncontradicted testimony, we find the goods are identical in part.46
With respect to the services, as set forth above, Bremer testified that “as early as
2004 Myka Designs has been and continues to offer on-line retail store services
featuring jewelry,”47 and these services are identical to those in the opposed
application. Based on this uncontradicted testimony, we find the services are
identical.
Accordingly, the second DuPont factor also strongly favors a finding of likelihood
of confusion.
3. Similarity or Dissimilarity of the Channels of Trade and
Classes of Purchasers
The third DuPont factor assesses “the similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As with the similarity
or dissimilarity goods and services, our determination must be based on the
identification of goods and services in the subject application. See Stone Lion, 746
F.3d at 1324. With respect to Opposer’s channels of trade for its common law mark,
Bremer testified:48
Since 1993, Myka Designs has and continued to hire sales representatives that
assist Myka Designs with sales specifically in the United States; this includes
Fashion/Jewelry & Gift Industry Sales Representatives … working with retail
store owners to market MYKA, write orders, as well as attend instore
46 Applicant explicitly admits that its goods overlap with Opposer’s goods in part, stating “In
relation to International Class 014, Applicant agrees that the following items overlap –
jewelry, charms, key chains.” 58 TTABVUE 39.
47 28 TTABVUE 6.
48 28 TTABVUE 6, 10.

Opposition No. 91280069.
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marketing events to promote the brand. Myka Designs also contracts with
independent retail stores to sell Myka Designs Jewelry Products. Located
across the USA, each store that carries our brand is marketing the MYKA
Trademarks, as they have a constant flow of customers passing through.
…
at least as early as 2004 Myka Designs has been and continues to offer on-line
retail store services featuring jewelry.
With respect to Opposer’s classes of purchasers for its common law mark, Bremer
testified:49
Myka Designs Jewelry Products under the MYKA Trademarks are targeted
towards and purchased by consumers of all ages and demographics.
In the application, Applicant’s identification of goods and services does not include
any restriction as to trade channels or classes of purchasers, and we must presume
that its goods and services move in all normal and usual channels of trade and
methods of distribution for those goods and services and are available for purchase
by all the usual consumers. See Octocom Sys., Inc. v. Houston Comput. Servs. Inc.,
918 F.2d 937, 942 (Fed. Cir. 1990); Hard Rock Cafe Int’l (USA), No. 91101304, 2000
TTAB LEXIS 577, at *24-25 (noting that while opposer’s channels of trade were
limited to its common law uses, there was no restriction in applicant’s identification
on the channels of trade and therefore applicant’s goods were deemed to be sold in all
channels of trade appropriate for such goods). Accordingly, we find that Applicant’s
unrestricted jewelry goods and services are available in the same channels of trade
as Opposer’s jewelry goods and services.
49 28 TTABVUE 14.

Opposition No. 91280069.
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We find the parties’ channels of trade and classes of purchasers overlap, and this
also weighs in favor of a likelihood of confusion.
4. Other Factors Not Determinative
Opposer also submitted evidence and argument on the strength of its mark, and
actual confusion. As noted, Applicant has not briefed likelihood of confusion,
contending merely that Opposer is unable to prove its priority of use.
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 1341-1342 (Fed. Cir. 2004); 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 [or services] and differences in the marks.”). Here, the
record shows the parties’ MYKA marks are legally identical, the parties’ jewelry
goods and services are identical in part, and travel in overlapping channels of trade
to overlapping classes of purchasers. We need no more to find a likelihood of
confusion.
To be clear, actual confusion is not required to find a likelihood of confusion, and
even weak marks merit protection. See Herbko, 308 F.3d at 1165 (“[A] showing of
actual confusion is not necessary to establish a likelihood of confusion.”); In re Max
Cap, Group Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *12 (“[E]ven suggestive or
weak marks are entitled to protection from the use of a very similar mark for legally
identical services.”). Therefore, even if we found that Opposer’s evidence on the

Opposition No. 91280069.
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strength of its mark and actual confusion did not weigh in favor of likelihood of
confusion, it would not change the outcome here.
Based on the identity of marks and goods and services, and the overlap in the
channels of trade and classes of purchasers, we find Applicant’s mark MYKA for
jewelry goods and services is likely to cause confusion with Opposer’s prior common
law mark MYKA for jewelry goods and services.
DECISION
The opposition is sustained as to both Classes 14 and 35.