Detail Medic v. Exotic Car Care, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: April 8, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Detail Medic
v.
Exotic Car Care, LLC
_____
Cancellation No. 92081874
_____
Harry Jay Levin of Levin & Associates for Detail Medic.
Abraham Lichy of McLaughlin & Stern, LLP for Exotic Car Care, LLC.
Before Lykos, Cohen and Bradley,
Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On March 20, 2023, Detail Medic (“Petitioner”) filed a Petition to Cancel Exotic
Car Care, LLC’s (“Respondent”) registration for the standard character mark
DETAIL MEDIC (with DETAIL disclaimed) for the following goods identified below
in International Class 3:1
Automobile tire cleaning and polishing preparations; Automobile and
car wax preparations; Car polish; Car wax; Car wax also containing
paint sealant; Carpet cleaners; Kits for removing scratches from
1 Registration No. 6992535 issued on February 28, 2023 on the Principal Register, based on
an application filed on April 14, 2021. The registration alleges September 2, 2021 as the date
of first use anywhere and in commerce.

Cancellation No. 92081874
- - 2 - -
automotive finishes and metal trims comprised of buffing compound for
automobiles and also including wool buffing pads; Leather polishes;
Non-medicated industrial soap; Polymer sealant for cleaning, shining
and protecting automobile exterior surfaces; Spray cleaners for use on
cars and automobiles; Tire dressings; Waxes for leather.
By way of its Amended Petition to Cancel, Petitioner asserts claims of (1) priority
and likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d);
(2) deceptiveness under Trademark Act Section 2(a), 15 U.S.C. § 1052(a); (3)
misrepresentation of source under Trademark Act Section 14(3), 15 U.S.C. § 1064(3);
(4) and fraudulent procurement of Respondent’s registration.2
In its Answer to the operative complaint, Respondent admitted that it “currently
uses the mark DETAIL MEDIC in [Respondent’s] business for automotive cleaning-
related products.”3 Respondent otherwise denied the salient allegations.4
On February 6, 2025, the Board issued an order noting that Petitioner’s time to
file a trial brief had expired and ordered Petitioner to show cause why the failure
should not be treated as a concession of the case.5 The Board discharged the show
cause order after Petitioner filed a response which the Board construed as a motion
2 Amended Petition to Cancel, 11 TTABVUE 2-7. Respondent had filed a motion to dismiss
the original petition for cancellation for failure to state a claim under Fed. R. Civ. P. 12(b)(6);
the Board granted the motion in part and allowed Petitioner time to cure the defects by filing
an amended petition to cancel. See 6 & 10 TTABVUE.
3 Answer to Amended Petition to Cancel ¶ 7; 12 TTABVUE 3.
4 Respondent also asserted the affirmative defenses of failure to state a claim which we deem
waived, see Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013 TTAB
LEXIS 347, at *5 n.6, aff’d, 565 F. App’x 900 (Fed. Cir. 2014), as well as various putative
defenses which we construe as amplifications of its denials. See Mars Generation, Inc. v.
Carson, No. 91224726, 2021 TTAB LEXIS 386, at *4 (amplifications of denials are not true
affirmative defenses).
5 19 TTABVUE 2.

Cancellation No. 92081874
- - 3 - -
to reopen the time to file a brief.6 Respondent did not contest the motion, and as a
result, the Board granted Petitioner’s motion as conceded and reset Petitioner’s time
to file its brief. After filing several motions to extend, Petitioner eventually filed its
trial brief on November 17, 2025.7
Respondent did not file a brief, and as defendant, it is under no obligation to do
so. See, e.g., Shenzhen IVPS Tech. Co. Ltd. v. Fancy Pants Prods., LLC, No. 91263919,
2022 TTAB LEXIS 383, at *5 (Board did not construe defendant’s failure to file a brief
as concession of the case). However, as plaintiff, Petitioner must prove its entitlement
to petition to cancel Respondent’s registration and at least one ground for cancellation
by a preponderance of the evidence notwithstanding Respondent’s inaction in this
case. See id. at *5-6; see also Stratus Networks, Inc. v. UBTA-UBET Communs., Inc.,
955 F.3d 994, 998 (Fed. Cir. 2020).
For the reasons explained below, we deny the petition to cancel.
I. The Record
As with all cancellation proceedings, the record includes the pleadings, and
pursuant to Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2), the file for the
involved registration. However, this case is unusual because the record contains no
competent evidence from either party.
6 22 TTABVUE 1.
7 31 TTABVUE.

Cancellation No. 92081874
- - 4 - -
Petitioner’s main trial period closed on Wednesday August 14, 2024.8 On
Thursday August 15, 2024, Petitioner submitted its “trial evidence” which we
construe as a notice of reliance on two documents.9 Because the submission was
untimely and there is no stipulation or Board order extending or reopening
Petitioner’s main trial period, Petitioner’s evidence is not of record and has not been
considered. See Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a); Trademark Rule
2.121(c), 37 C.F.R. § 2.121(c); and Trademark Rule 2.123(k), 37 C.F.R. § 2.123(k); see
also, e.g., Baseball Am., Inc. v. Powerplay Sports, Ltd., No. 91120166 et. al., 2004
TTAB LEXIS 443, at *5 n.8 (materials submitted outside of applicant’s assigned
testimony period given no consideration). In its pretrial disclosures, Petitioner
identified as witnesses its two owners.10 However, at trial, Petitioner took no
testimony depositions and did not submit any testimony declarations.
For its part, Respondent submitted no testimony or evidence. But again, we
emphasize that as defendant, Respondent is not required to do so.
II. Entitlement to a Statutory Cause of Action
In every inter partes case, the plaintiff must prove entitlement to a statutory
cause of action.11 See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270,
8 See May 31, 2024 and July 9, 2024 Board orders; 15 & 17 TTABVUE.
9 18 TTABVUE. One of the documents is a printout of Respondent’s involved registration
which is already automatically of record.
10 Petitioner’s Pretrial Disclosures ¶ 1; 16 TTABVUE 2-3.
11 Board case law prior to the U.S. Supreme Court decision Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014) described statutory entitlement as standing.
For this reason, some of the older case law cited to in this opinion refers to standing instead
of statutory entitlement. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir.

Cancellation No. 92081874
- - 5 - -
1274 (Fed. Cir. 2014). Statutory entitlement is part of a plaintiff’s case-in-chief and
must be affirmatively proved; a plaintiff cannot rest solely on allegations in its
complaint. Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1028 (CCPA
1982); see, e.g., Philanthropist.com, Inc. v. Gen. Conference Corp. of Seventh-Day
Adventists, No. 92065178, 2021 TTAB LEXIS 205, at *14 (“Petitioner must maintain
its entitlement to the statutory cause of action throughout the proceeding and
affirmatively prove its existence at the time of trial by introducing evidence to support
the allegations in its pleading that relate to such entitlement as an element of its
case-in-chief.”). The purpose of this requirement directed solely to the plaintiff’s
interest is to prevent litigation when there is no real controversy between the parties.
In a cancellation proceeding, statutory entitlement is based on Section 14 of the
Trademark Act, 15 U.S.C. § 1064, which states in relevant part:
A petition to cancel a registration of a mark, stating the grounds
relied upon, may, upon payment of the prescribed fee, be filed as
follows by any person who believes that he is or will be damaged,
… by the registration of a mark on the principal register
established by this chapter … .
To establish entitlement to a statutory cause of action under Section 14 of the
Trademark Act, Petitioner must demonstrate (1) that its claims fall within the zone
of interests protected by the statute (i.e., has a “real interest” in the outcome of the
proceeding); and (2) damage proximately caused by the registration or continued
registration of the involved mark (i.e., a reasonable basis for its belief in damage). See
2020) (“[W]e discern no meaningful, substantive difference between the analytical
frameworks expressed in Lexmark and Empresa Cubana.”).

Cancellation No. 92081874
- - 6 - -
Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070-71 (Fed. Cir. 2022) (citing
Lexmark, 572 U.S. at 129, 132).
In order to determine whether Petitioner has met this threshold, we first look to
Petitioner’s basis for alleging statutory entitlement. The Amended Petition to Cancel
is not a model of clarity.12 Nonetheless, Petitioner adequately pleaded its statutory
entitlement by alleging the following:13
The factual predicate upon which the Petitioner files this Cancellation
lies on the facts that the registration for the mark sought to be cancelled
involve two marks which are exactly the same, “Detail Medic”. The mark,
which had been previously conceived, adopted and used by the Petitioner
(the “Senior Owner”) had been long after adopted and used by the
Respondent, (the “Junior User”). Both marks portray a medical grade-
like quality of the goods and services offered by the parties. Of note, the
market in which Detail Medic is primarily in are, likewise, exactly the
same; namely cleaning and detailing vehicles and boats. It is alleged
below in this Amended Petition, that the Junior User, had full and actual
knowledge of the prior conception, adoption, and use of the mark at the
time of Respondent’s application to register.
Pursuant to Section 14 of the Trademark Act, 15 U.S.C, Section 1064,
Petitioner alleges and believes that in the absence of a cancellation of the
Respondent’s registration, that the mark will proximately cause the
Petitioner damage …
We read Petitioner’s allegations as properly pleading a real interest in bringing a
plausible claim under Section 2(d) by alleging common law use of the mark “Detail
Medic” in connection with services performed or goods used in “cleaning and detailing
12 A major flaw with Petitioner’s complaint is that it fails to make all averments in numbered
paragraphs as required under Fed. R. Civ. P. 10(b), made applicable to Board proceedings via
Trademark Rule 2.116(a), 37 C.F.R. § 2.116(a). See also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (“TBMP”) § 309.03(a)(2) (“Elements of a Complaint – In
General”) (2025). We commend Respondent for parsing the averments into numbered
responses in its Answer. See Answer to Amended Petition to Cancel, 12 TTABVUE.
13 Amended Petition to Cancel, 11 TTABVUE 3.

Cancellation No. 92081874
- - 7 - -
vehicles and boats,”14 in other words, a claim within Petitioner’s zone of interests. Cf.
Giersch v. Scripps Networks, Inc., No. 92045576, 2009 TTAB LEXIS 72, at *7 (proof
of common-law use sufficient to establish standing). Petitioner also properly pleaded
that Respondent’s registration “will proximately cause” damage to Petitioner.15
The problem is that Petitioner has not proven any of these allegations. As noted
above, Petitioner has not introduced any admissible evidence regarding its claimed
use of its pleaded mark “Detail Medic.” We therefore accord no evidentiary value to
assertions in Petitioner’s brief about its purported adoption and use of its pleaded
mark. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018).16
Alternatively, we look to any admissions in Respondent’s Answer to establish
Petitioner’s statutory entitlement. With the exception of a single allegation about
Respondent’s own use of its registered mark, Respondent denied all of the salient
allegations in the operative complaint, leaving us with no admissions proving
Petitioner’s statutory entitlement. See Boyds Collection, Ltd. v. Herrington & Co., No.
14 See id.
15 Amended Petition to Cancel, 11 TTABVUE 3.
16 Even if we were to consider Petitioner’s late-filed evidence, the result would be the same.
Petitioner contends in its brief that it began use in commerce of its mark in 2012, relying on
a social media post dated April 27, 2012 as documentary proof. See Brief, 31 TTABVUE 6 and
18 TTABVUE 3. The social media post constitutes hearsay. See Fed. R. Evid. 801 and 802.
Its only evidentiary value is what it shows on its face (that Petitioner posted this content as
of April 27, 2012); it cannot be used to prove the truth of any assertions in the post (i.e., that
Petitioner commenced use in commerce as of that date). Absent testimony from a witness
with personal knowledge, Petitioner cannot establish use of its pleaded mark in connection
with its pleaded goods and services for purposes of statutory entitlement. See generally
Ricardo Media Inc. v. Inventive Software, LLC, No. 91235063, 2019 TTAB LEXIS 283, at *6
(Internet articles which are unaccompanied by testimony cannot be considered for the truth
of the matters asserted therein but are admissible only for what they show on their face).

Cancellation No. 92081874
- - 8 - -
92032146, 2003 TTAB LEXIS 11, at *11 n.10 (“Although petitioner pleaded
ownership of common-law marks in the petition to cancel, such matters were denied
in respondent’s answer, and are therefore subject to proof. Without such evidence,
petitioner can prove neither its standing nor its substantive claims.”).
III. Conclusion
Petitioner bears the burden of proving by a preponderance of the evidence both
statutory entitlement to bring this cancellation proceeding and a ground for relief.
Unless admitted, statements made in a petition to cancel are mere allegations subject
to proof at trial. The record is devoid of evidence bearing on Petitioner’s statutory
entitlement. Petitioner’s failure to prove statutory entitlement is by itself a sufficient
basis to deny the petition to cancel. See e.g., Lumiere Prods., Inc. v. IT&T Corp., No.
91066857, 1985 TTAB LEXIS 42, at *3 (dismissing opposition for lack of standing
where there was “not a scrap of evidence in the record concerning Lumiere’s [pleaded]
use of ‘minicom’ as a trademark, or of its use of this term as part of its trade name,
or of any commercial activities of this firm in the manufacture or sale of intercom
systems.”). We therefore need not reach the merits of Petitioner’s substantive claims.
See id.
Decision: The petition to cancel is denied.