91289409•DT Ecom Ltd v. Shenzhen Buer Electronic Commerce Co., Ltd.
Texte intégral
THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: March 23, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ DT Ecom Ltd v. Shenzhen Buer Electronic Commerce Co., Ltd. _____ Opposition No. 91289409 _____ Ross Brandborg, Esq., for DT Ecom Ltd Haoyi Chen of Arch & Lake, LLP for Shenzhen Buer Electronic Commerce Co., Ltd. _____ Before Lykos, Lebow and Cohen, Administrative Trademark Judges. Opinion by Lebow, Administrative Trademark Judge: Applicant, Shenzhen Buer Electronic Commerce Co., Ltd., seeks to register on the Principal Register the composite mark displayed below for “animal-activated pet feeders; animal activated livestock waterers; animal grooming gloves; cages for household pets; dog food scoops; drinking troughs; drinking troughs for animals; feeding troughs; feeding troughs for livestock; feeding vessels for
Opposition No. 91289409 - 2 - pets; litter boxes for pets; pet feeding and drinking bowls,” in International Class 21.1 Opposer, DT Ecom Ltd, opposes registration of Applicant’s mark, alleging priority and likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on prior common law use of the mark KITTYSPOUT in connection with “pet water bowls; pet water fountains being dishes and related products.”2 Opposer also claims ownership of a later-filed pending application for the mark KITTYSPOUT for “pet water bowls; pet water fountains being dishes” in International Class 21.3 Applicant denied the salient allegations of the notice of opposition in its answer.4 Only Opposer filed a brief and submitted evidence.5 Applicant did not file a brief, take testimony, or introduce any other evidence during its testimony period, but as This opinion cites to the Federal Reporter (e.g., F.2d, F.3d, or F.4th) for decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Customs and Patent Appeals; and to LexisNexis Corporation’s LEXIS legal database for decisions of the Board. 1 Application Serial No. 97843505 was filed on March 16, 2023 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s allegation of use of the mark anywhere and in commerce since as early as March 6, 2023. 2 1 TTABVUE. Opposer’s attachment of evidence to its notice of opposition including website excerpts did not make those materials part of the record. See Trademark Rule 2.123(k), 37 C.F.R. § 2.123(k) (evidence not obtained and filed in compliance with the rules of practice governing inter partes proceedings before the Board will not be considered). Citations in this opinion to the briefs and other materials in the record refer to TTABVUE, the Board’s online docketing 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. 3 Id. at 4 (¶ 4). See also 19 TTABVUE 10-14. Application Serial No. 98227568, filed October 17, 2023 under Section 1(a) of the Trademark Act, 15. U.S.C. § 1051(a), based on Opposer’s allegation of use of the mark anywhere and in commerce since as early as March 1, 2021. 4 5 TTABVUE. 5 21 TTABVUE.
Opposition No. 91289409 - 3 - defendant is not required to do so. See Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018 TTAB LEXIS 168, at *12 n.13 (TTAB 2018) (“Because Respondent, as defendant herein, is under no obligation to submit evidence or a brief, we do not construe Respondent’s failure to do so as a concession of the case.”); see also Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1). For the reasons discussed below, we dismiss the opposition. I. The Record The record includes the pleadings, and the file of the Application by operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).6 In addition, Opposer submitted the testimony declaration of its Chief Executive Officer, Dante Timpano, with exhibits including, amongst other things, (i) a copy of Opposer’s pending application for the mark KITTYSPOUT; (ii) printouts of pages from Opposer’s website, kittyspout.com; (iii) excerpts from articles and reviews featuring Opposer’s KITTYSPOUT products; and (iv) an excerpt of domain name registration data from icaan.org for kittyspout.com.7 6 For this reason, Opposer’s submission of further copies of the Application (including specimens of use), Opposer’s notice of opposition, and Applicant’s answer was improper and serves merely to clutter the trial record. 7 19 TTABVUE (“Timpano Test. Dec.”; Exhibits 1-3); 20 TTABVUE (Exhibits 5, 7-11). Other exhibits inappropriately attached to Mr. Timpano’s testimony include Opposer’s April 28, 2025 motion for default judgment, and the Board’s order in response denying consideration because the motion did not comply with the applicable rules after twice being warned. Id. at 28-32. This follows a pattern of inappropriate filings by Opposer. Opposer’s January 3, 2025 motion for summary judgment was given no consideration because Opposer failed to provide proof of service on Applicant. 9-10 TTABVUE. Opposer’s January 31, 2025 motion for summary judgment was given no consideration because it contained no evidence or argument. 13-14 TTABVUE. Opposer’s February 1, 2025 motion for default judgment was given no consideration because Applicant had filed an answer eleven months earlier. 17-18 TTABVUE. Opposer’s April 28, 2025 motion for default is simply a re-filing of Opposer’s
Opposition No. 91289409 - 4 - II. Entitlement to a Statutory Cause of Action Although Opposer does not mention the issue of its entitlement to oppose, we must address the issue. 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, 1373-74 (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 oppose registration of a mark when such opposition is within the zone of interests protected by the statute, Trademark Act Section 13, 15 U.S.C. § 1063, and the plaintiff has a reasonable belief in damage that is proximately caused by registration of the mark. Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1071 (Fed. Cir. 2022) (citing Lexmark, 572 U.S. at 129, 132); Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020). Opposer’s entitlement is supported by the testimony of Opposer’s CEO, Dante Timpano, showing it to be a competitor of Applicant that uses the same term, KITTYSPOUT, to identify goods—pet water bowls, pet water fountains being dishes—that on their face overlap with the subject application’s identified “animal- activated pet feeders; animal activated livestock waterers; animal grooming gloves; cages for household pets; dog food scoops; drinking troughs; drinking troughs for animals; feeding troughs; feeding troughs for livestock; feeding vessels for pets; litter February 1, 2025 motion for default that had been given no consideration by the Board. Opposer’s attorney clearly should familiarize himself with proper Board practice and procedure. The Board’s manual of procedure, the TBMP, is available online at https://tbmp.uspto.gov/RDMS/TBMP/current.
Opposition No. 91289409 - 5 - boxes for pets; pet feeding and drinking bowls.”8 See e.g., Books on Tape, Inc. v. Booktape Corp., 836 F.2d 519, 520 (Fed. Cir. 1987) (finding competitor has [entitlement] standing because it has an interest in the outcome beyond that of the general public); Peterson v. Awshucks SC, LLC, No. 92066957, 2020 TTAB LEXIS 520, at *20 (entitlement to a statutory cause of action found where petitioner and respondent are competitors); Grote Indus., Inc. v. Truck-Lite Co., No. 91196923, 2018 TTAB LEXIS 105, at *14 ([entitlement] standing found where plaintiff and defendant are competitors). We thus find that Opposer has demonstrated the requisite entitlement to a statutory cause of action for potential likelihood of confusion. III. Trademark Act Section 2(d) Section 2(d) of the Trademark Act prohibits registration of a mark that [c]onsists 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, or to cause mistake, or to deceive…. 15 U.S.C. § 1052(d). Thus, Opposer must prove both priority and likelihood of confusion, and it must do so by a preponderance of the evidence. See, e.g., Araujo v. Framboise Holdings Inc., 99 F.4th 1377, 1380 (Fed. Cir. 2024) (“The opposer has the burden to prove its prior use by a preponderance of the evidence.”) (citation omitted). A. Priority Although Applicant did not introduce any evidence in this case, it may nevertheless rely on the March 16, 2023 filing date of its application as a constructive 8 19-20 TTABVUE.
Opposition No. 91289409 - 6 - use date for purposes of priority of its mark. See Trademark Act § 7(c), 15 U.S.C. § 1057(c); see generally, Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816, 2013 TTAB LEXIS 439, at *13 (“for when an application or registration is of record, the party may rely on the filing date of the application for registration, i.e., its constructive use date”); Syngenta Crop Prot., Inc. v. Bio-Chek, LLC, No. 91175091, 2009 TTAB LEXIS 70, at *18 (“applicant may rely without further proof upon the filing date of its application as a ‘constructive use’ date for purposes of priority”). Opposer, for its part, does not own a registration and therefore must establish priority by submitting evidence that it used its KITTYSPOUT mark in connection with its goods prior to Applicant’s constructive use date of March 16, 2023, nor can it rely on its pending application that was filed subsequent to Applicant’s application as a basis for claiming priority. See RxD Media, LLC v. IP Application Dev. LLC, No. 91207333, 2018 TTAB LEXIS 37, at *23 (“In other words, because unregistered marks are not entitled to the presumptions established under Sections 7(b)-(c) of the Trademark Act, it is Opposer’s burden to demonstrate that it owns a trademark that was used prior to Applicant’s first use or constructive use of its mark and not abandoned); Life Zone Inc. v. Middleman Grp. Inc., No. 91160999, 2008 TTAB LEXIS 37, at *21 (where the opposer’s filing date was later in time it provided the opposer “no basis for ... priority”). Opposer argues that it has used KITTYSPOUT in U.S. commerce in connection with “Pet water bowls; Pet water fountains being dishes” since at least as early as
Opposition No. 91289409 - 7 - March 1, 2021.”9 According to Opposer: This use is established by the declaration of its CEO, Dante Timpano, and supported by its own trademark application (Serial No. 98227568) claiming the March 1, 2021 first use date. Further evidence includes printouts from its commercial website, www.kittyspout.com, and the fact that its domain name was created on February 26, 2021, just prior to its first use. Opposer has invested substantially in marketing its products, which have received positive media coverage from major outlets like USA Today.10 These contentions are unavailing. “Oral testimony, even of a single witness, if ‘sufficiently probative,’ may be sufficient to prove priority” especially when “buttressed by [ ] documentary evidence.” Kohler Co. v. Baldwin Hardware Corp., 2007 TTAB LEXIS 3, at *23 (citing Powermatics, Inc. v. Globe Roofing Products Co., 341 F.2d 127 (CCPA 1965)). Although Mr. Timpano states, generally, that “[s]ince at least as early as March 1, 2021, Opposer has continuously used the trademark KITTYSPOUT in commerce in the United States in connection with pet products, specifically Pet water bowls; Pet water fountains being dishes,”11 he provides no explanation regarding the manner of the purported use or documentary evidence to support his testimony. Section 45 of the Trademark Act defines “use in commerce” for goods as the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. ... [A] mark shall be deemed to be in use in commerce ... on goods when- (A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes it impracticable, then on documents associated with the goods or their 9 21 TTABVUE 4 (Opposer’s Brief). 10 Id. at 4-5. 11 19 TTABVUE 3 (Timpano Decl. ¶ 3).
Opposition No. 91289409 - 8 - sale, and (B) the goods are sold or transported in commerce[.] 15 U.S.C. § 1127. But the record here is devoid of any documentary evidence such as invoices showing that Opposer actually sold or transported pet water bowls or fountains being dishes in commerce under the mark KITTYSPOUT on any particular date, much less a date prior to Applicant’s constructive use date of March 16, 2023. In addition, while Opposer claims a date of first of use in commerce of March 1, 2021 in its later-filed pending application for the mark KITTYSPOUT that is of record in this case, it does not benefit Opposer here. Trademark Rule 2.122(b)(2) explicitly states that “the allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark must be established by competent evidence.” 37 C.F.R. § 2.122(b)(2). See also In re Mr. Recipe, LLC, No. 86040643, 2016 TTAB LEXIS 80, at *16 (“a pending application is evidence only that the application was filed on a certain date; it is not evidence of use of the mark”). The printouts from Opposer’s website (kittyspout.com) that Mr. Timpano provided with testimony that he states were “accessed on 5/15/2025, demonstrating the use of the KITTYSPOUT mark in connection with its goods,” do not prove any such use. First, the webpage printouts merely show advertising of Opposer’s goods, not the sale or transportation of them in commerce. Furthermore, the date that the webpage printouts were accessed by Mr. Timpano fall well outside the time period at issue in this case, where Opposer, to prevail, must establish a date of first use in commerce that is prior to Applicant’s constructive use date of March 16, 2023. The evidence thus
Opposition No. 91289409 - 9 - has no bearing on when Opposer began using its mark in commerce, if at all. Mr. Timpano’s provision of a “copy of the ICANN Lookup for the domain name kittyspout.com, showing the creation date of February 26, 2021, by opposer,” does not bring Opposer any closer to establish a date of use, much less a date of use that is prior to Applicant’s constructive use date because “registration of domain names does not constitute use in commerce.” CBC Mort. Agency v. TMRR, LLC, No. 92076723, 2022 TTAB LEXIS 295, at *32 n.15. See also Brookfield Commc’ns Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1052 (9th Cir. 1999) (mere registration of domain name does not constitute use of trademark in commerce); Stawski v. Lawson, No. 94002621, 2018 TTAB LEXIS 438, at *26 (same). Neither do the several article-excerpts that Mr. Timpano provided with his testimony showing “positive media coverage” of Opposer’s products “from major outlets like USA Today” indicate that Opposer began using the mark by any particular date, much less a date prior to that of Applicant’s constructive use date. Even if they did, the webpages cannot be considered for the truth of their content. See Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., No. 91224000, 2020 TTAB LEXIS 3, *7 (Internet printouts are considered only for what they show on their face rather than for the truth of the matters asserted therein).12 12 Mr. Timpano testified that Exhibit 5 to his testimony included “reviews featuring Opposer’s KITTYSPOUT products.” 19 TTABVUE 4 (Timpano Dec. ¶ 5(d)). Upon review, we find that the exhibit includes a single customer review from its website, dated March 9, 2021 giving Opposer’s drinking fountain product praise. We cannot consider this review as competent evidence of the sale or transportation of Opposer’s goods under the mark KITTYSPOUT notwithstanding the indication of a date of review because the document is hearsay. See Fed. R. Civ. P. 802. It thus cannot be relied on for the truth of its content. See, e.g., Optimal Chemical Inc. v. Srills LLC, 2019 TTAB LEXIS 301, at *6 n.13 (website printouts are hearsay
Opposition No. 91289409 - 10 - The evidence, as a whole, fails to establish by a preponderance of the evidence that Opposer used its pleaded KITTYSPOUT mark in commerce in connection with “pet water bowls; pet water fountains being dishes and related products” prior to the constructive use filing date of March 16, 2023 for Applicant’s mark. See Gen. Motors Corp. v. Aristide & Co., No. 91167007, 2008 TTAB LEXIS 18, 24 (no common law use found where it was “unclear [from the evidence] whether or when and on what goods” the mark had “actually been used”). Accordingly, Opposer has failed to prove a critical element of its Section 2(d) claim, priority, and cannot prevail. We thus need not reach the issue of likelihood of confusion. Decision: The opposition is dismissed. and admissible under notice of reliance for what they show on their face but may not be relied upon for the truth of the matters asserted unless supported by testimony or other evidence).
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