Scently LLC v. Scentacious, LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: September 8, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Scently LLC
v.
Scentacious, LLC
_____
Opposition No. 91293506
_____
Matthew L. Bycer of Bycer & Marion, PLC,
for Scently LLC.
Scentacious, LLC, appearing pro se.1
_____
Before Wellington, Elgin, and O’Connor,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Scentacious, LLC (“Applicant”) seeks a registration of the mark SCENTLY in
standard characters on the Principal Register in connection with “Fragrance for
household purposes” in International Class 3.2
1 Scentacious, LLC appeared in this proceeding pro se through its representative Xavier
Mottley.
2 Serial No. 98280124 was filed on November 21, 2023 based upon Applicant’s claim of first
use anywhere as of January 1, 2000 and use in commerce since at least as early as January
1, 2023 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).

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Scently LLC (“Opposer”) filed a Notice of Opposition opposing registration of
Applicant’s mark based on likelihood of confusion under Trademark Act Section 2(d),
15 U.S.C. § 1052(d) and fraud. In the operative Amended Notice of Opposition,
Opposer claimed prior common law rights in the marks SCENTLY,
, and for “fragrance for household purposes;
Scented oils; Scented oils used to produce aromas; and Refills for electric diffusers for
air fragrancing preparations.”3
In its Answer to the Amended Notice of Opposition (“Amended Answer”),
Applicant filed a general denial along with “Specific Answers.”4 We discuss the
Amended Answer in further detail in Section I, below.
Opposer filed evidence and a main brief. Applicant did not file evidence or a brief,
but it was not required to do so. Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1);
Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018
TTAB LEXIS 168, at *12 n.13 (defendant in inter partes proceeding is under no
obligation to file a brief). Notwithstanding, Opposer must prove its entitlement to a
statutory cause of action and grounds for opposition by a preponderance of the
evidence.
For the reasons set forth below, we dismiss the Notice of Opposition.
3 8 TTABVUE 2-3 (Amended Notice of Opposition ¶¶ 1-3). Citations refer to filings in the
Board’s TTABVUE docket system. In re Integra Biosciences Corp., No. 87484450, 2022 TTAB
LEXIS 17, at *6.
4 9 TTABVUE.

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I. Claim Argued Before the Board
As noted above, Opposer pleaded two claims for relief: likelihood of confusion
under Section 2(d), and fraud based on “a false claim of first use predating the claim
of use in Opposer’s initial application” in the subject application.5 Although Opposer
filed evidence directed to the fraud claim, Opposer’s brief addresses only the
likelihood of confusion claim.6
Insofar as Opposer has not argued the fraud claim in its brief, we find (in
accordance with the Board’s usual practice) that the claim has been waived. Alcatraz
Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013 TTAB LEXIS 347,
at *6, aff’d mem., 565 Fed. Appx. 900 (Fed. Cir. 2014) (waiver by failure to pursue
claims in brief); see also In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed.
Cir. 2020) (“waiver is the intentional relinquishment or abandonment of a known
right.”) (cleaned up).7 We dismiss the opposition as to that claim.
II. The Record and Evidentiary Issues
The record includes the operative pleadings and, pursuant to Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file of the subject application. In addition,
Opposer made of record the following evidence during its trial period:
5 8 TTABVUE 9 (Amended Notice of Opposition, ¶ 43).
6 See 21 TTABVUE 7 (“Statement of Issues” pertaining only to the Section 2(d) claim).
7 In any event, a false date of first use in an application, by itself, does not support a fraud
claim because “the first use date is not material to the Office’s decision to approve a mark for
publication.” Hiraga v. Arena, No. 92047976, 2009 TTAB LEXIS 73, at *15-16; accord W.
Worldwide Enters. Grp. v. Qinqdao Brewery, No. 92017965, 1990 TTAB LEXIS 42, at
*16 (“The Board repeatedly has held that the fact that a party has set forth an erroneous date
of first use does not constitute fraud unless, inter alia, there was no valid use of the mark
until after the filing of the application.”).

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• Testimony Declaration of Matthew L. Bycer, Opposer’s attorney of
record, and attached Exhibit B (statement of facts); and Exhibits X
and Y (emails);8
• Testimony Declaration of Shmuel Palgon, President of Opposer
Scently LLC and formerly President of Scently Inc., and attached
Exhibits M-W and Z (photographs, emails, texts, and Internet
website printouts);9
• Notice of Reliance on Opposer’s discovery requests to Applicant
(Exhibits A and C);10
• Notice of Reliance on TSDR records of applications Serial Nos.
97082461 (Exhibits E and F) (the ’461 Application) and 98504680
(Exhibit G) (the ’680 Application);11
• Notice of Reliance on printouts from various Internet websites
(Exhibits H-L).12
We first address the following evidentiary issues.
A. Requests for Admission
Attorney Bycer testified that he served Requests for Admissions upon Applicant
on June 13, 2025 and received acknowledgement of receipt, but did not receive any
8 16 TTABVUE (“Bycer Decl.”). This declaration attaches “OPPOSER’s STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF ITS BRIEF,” id. at 6-10 (Exh. B), which is improper
attorney argument in a testimony declaration. These arguments should have been filed
during Opposer’s briefing period. This declaration includes citations to certain exhibits that
are said to be “attached,” but instead were filed under cover of the notices of reliance.
9 17 TTABVUE (“Palgon Decl.”). Like the Bycer Declaration, this declaration includes
citations to certain exhibits that are said to be “attached,” but instead were filed under cover
of the notices of reliance.
10 18 TTABVUE (“First NOR”).
11 19 TTABVUE (“Second NOR”).
12 20 TTABVUE (“Third NOR”).

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responses or objections.13 Opposer’s First Requests for Admissions to Applicant were
submitted under cover of a notice of reliance.14
Fed. R. Civ. P. 36(a)(3) provides that “[a] matter is admitted unless, within 30
days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by
the party or its attorney.” Applicant did not respond to Opposer’s requests for
admission in any manner and does not dispute that it failed to do so. Consequently,
the requests are deemed admitted by operation of law. Learning Journey Int’l v.
Yongfu, No. 92082654, 2024 TTAB LEXIS 326, at *6-7 (citing Giersch v. Scripps
Networks, Inc., No. 92045576, 2007 TTAB LEXIS 64, at *5). The effect of these
admissions is that the subject matter of the requests is “conclusively established
unless the [Board], on motion, permits the admission[s] to be withdrawn or amended”
under Fed. R. Civ. P. 36(b) or reopens the time to respond to the admission requests
“so that the admissions would not be deemed admitted as put.” Id. Applicant did not
move to withdraw or amend the admissions, nor did it move to reopen the time to
respond.
Opposer’s requests for admission stand admitted, and the matters admitted under
the requests are conclusively established despite any evidence to the contrary in the
record. See Fed. R. Civ. P. 36(b); Learning Journey, 2024 TTAB LEXIS 326, at *10
(citations omitted). When matter has been conclusively established under Rule 36, it
13 16 TTABVUE 2-3 (Bycer Decl. ¶¶ 5-7).
14 18 TTABVUE 4-14 (First NOR Exh. A) (“RFA”).

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is taken as a judicial, rather than an evidential, admission that “cannot be rebutted
by contrary testimony or ignored by the [Board] simply because it finds the evidence
presented by the party against whom the admission operates more credible,” and this
“applies equally to those admissions made affirmatively and those established by
default, even if the matters admitted relate to material facts that defeat a party’s
claim.” Learning Journey, 2024 TTAB LEXIS 326, at *10 (quoting Am. Auto. Ass’n
(Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir.
1991)); see also Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB
LEXIS 228, at *26-27 (in contrast to an evidentiary admission, “a judicial admission
... is incapable of refutation”).
B. Applicant’s Answer to the Amended Notice of Opposition
As noted above, Applicant filed a general denial of Opposer’s claims, as follows:
In accordance with the provisions of 37 C.F.R. § 2.106, Applicant hereby
files this its Answer to Opposer’s Amended Notice of Opposition and
denies each and every allegation, averment, statement, and contention
contained within said Opposition, as more fully set forth in the following
paragraphs.15
Filing a general denial is permitted under the Trademark Rules of Practice.
Trademark Rule 2.106(b)(2), 37 C.F.R. § 2.106(b)(2), provides that, in an answer,
“[d]enials may take any of the forms specified in Rule 8(b) of the Federal Rules of
Civil Procedure.”16 Rule 8(b)(3), in turn, provides that “[a] party that intends in good
faith to deny all the allegations of a pleading—including the jurisdictional grounds—
15 9 TTABVUE 2 (Amended Answer ¶ 2).
16 Except as otherwise provided, the Federal Rules of Civil Procedure are made applicable to
Board proceedings by Trademark Rule § 2.116(a), 37 C.F.R. § 2.116(a).

Opposition No. 91293506
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may do so by a general denial. A party that does not intend to deny all the allegations
must either specifically deny designated allegations or generally deny all except those
specifically admitted.” Fed. R. Civ. P. 8(b)(3).
Despite its general denial, Applicant included 67 paragraphs of “Specific
Answers,”17 six of which include the term “admits.” These are:
3. Applicant admits that Opposer’s products are sold under the stylized
“SCENTLY” branding but denies the remaining allegations set forth in
Paragraph 2.
25. The Applicant admits as stated in Paragraph 12 and 13, on or about
November 23rd, 2023, the Applicant Founder Xavier Mottley caused
application 98280124 to be filed with the U.S. Patent and Trademark
Office, citing its listing of goods and services as “Fragrance for household
purposes” in International Class 003.
33. With respect to Paragraph 15, Applicant admits that on or about
April 17, 2024, an automated customer service response generated by
the artificial intelligence software employed on Applicant’s website
SCENT.LY was sent to the Opposer.
35. Applicant admits that while its initial sales activities were
concentrated in the Midwest United States, its product roadmap
contemplated expansion to the remaining contiguous United States,
including Alaska and Hawaii, by the end of 2023.
38. With respect to Paragraph 18 of the Amended Opposition, Applicant
admits the allegation that Applicant’s mark bears similarities to
Opposer’s mark and that a likelihood of consumer confusion exists.
Applicant submits that an analysis of the respective marks reveals a
near identity in sound, connotation, and overall commercial impression.
However, Applicant respectfully submits that the visual appearance of
the marks presents discernible differences, which, while not dispositive
of the issue of likelihood of confusion, should be afforded due weight in
the determination thereof. Accordingly, Applicant acknowledges the
plausibility of consumer confusion between the subject marks.
17 9 TTABVUE 2-18 (Amended Answer ¶¶ 3-67). To the extent any of these statements are
intended as “affirmative defenses,” they are waived because Applicant did not pursue them
at trial. See Harry Winston, Inc. v. Bruce Winston Gem Corp., No. 91153147, 2014 TTAB
LEXIS 284, at *4-5 (defenses not pursued are deemed waived).

Opposition No. 91293506
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56. With respect to the allegations contained in Paragraph 40 of the
Amended Notice of Opposition, Applicant admits to the existence of SMS
communications pertaining to a branding investment in SCENTLY
North America in the approximate amount of $1,000,000 USD.
Applicant specifically denies the accuracy of the time ascribed to said
communication and further denies the characterization of the content of
said communication as set forth in Paragraph 40.18
Thus, we construe the Amended Answer as denying all the allegations of the
Amended Notice of Opposition except the facts above specifically admitted, under
Rule 8(b)(3). An admission in an answer is considered judicial in nature and binding.
See Reliable Contracting Grp., LLC v. Dep’t of Veterans Affairs, 779 F.3d 1329, 1334
(Fed. Cir. 2015) (“judicial admissions, which ‘have the effect of withdrawing a fact
from issue and dispensing wholly with the need for proof of the fact,’ are limited to
formal admissions made in, for example, a complaint, answer, or pretrial
order.”) (citation omitted); accord, Made in Nature, 2022 TTAB LEXIS 228, at *27.
The Amended Answer also contains factual statements which are not
“admissions” per se, but more aptly characterized as amplifications of Applicant’s
denials. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS 328,
at *4 n.8 (citing Mars Generation, Inc. v. Carson, No. 91224726, 2021 TTAB LEXIS
386, at *4). Factual statements made in pleadings cannot be considered as evidence
on behalf of the party making them; such statements must be established by
competent evidence during the time for taking testimony. Philanthropist.com, Inc. v.
Gen. Conference Corp. of Seventh-Day Adventists, No. 92065178, 2021 TTAB LEXIS
205, at *21. But admissions against interest in the pleadings are probative evidence.
18 See, e.g., 9 TTABVUE 3, 9, 10, 11, 15 (Amended Answer ¶¶ 3, 25, 33, 35, 38, 56).

Opposition No. 91293506
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Id. (“[S]tatements in pleadings may have evidentiary value as an opposing party’s
statement.”); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 704.06(a) (2026) (“statements in pleadings may have evidentiary value as
admissions against interest by the party that made them.”). We have considered
factual statements in Applicant’s Amended Answer that constitute admissions
against Applicant’s interest.
Finally, Applicant attached exhibits to its Amended Answer.19 Except in limited
circumstances, which are not present here, an exhibit to a pleading is not evidence
on behalf of the party to whose pleading the exhibit is attached unless identified and
introduced in evidence as an exhibit during the period for the taking of testimony.
Trademark Rule 2.122(c); Baseball Am., Inc. v. Powerplay Sports, Ltd., No. 91120166,
2004 TTAB LEXIS 443, at *4 n.6 (exhibits to pleading not evidence of record); see also
TBMP § 317. Accordingly, these exhibits are not part of the record.
III. Entitlement to a Statutory Cause of Action
To establish statutory entitlement to oppose under Trademark Act Section 13,
15 U.S.C. § 1063, Opposer must demonstrate a real interest in the proceeding and a
reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v.
Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014); Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1376 (Fed. Cir. 2012).
19 9 TTABVUE 20-64 (Amended Answer Exhs. 1, 2).

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Opposer alleged that SCENTLY stylized marks have been the subject of two
applications for registration, but only the ’680 Application for
currently is pending.20 The ’461 Application, filed in October 2021 for the mark
for “scented oils,” was abandoned in 2023.21
Opposer submitted copies of its pending pleaded application for the stylized mark
for goods related to the goods identified in the application.22 Mr.
Palgon also testified that Opposer has “established significant common law rights for
the literal mark SCENTLY and its stylized marks (above) based on its long and
extensive nationwide use in connection with fragrance and scent oils, refills, and
apparati [sic] used to distribute such oils, etc.”23
This is sufficient to establish Opposer’s entitlement to bring this opposition under
Trademark Act Section 2(d) based on its status as a competitor of Applicant. See
Books on Tape, Inc. v. Booktape Corp., 836 F.2d 519, 520 (Fed. Cir. 1987) (finding
20 Serial No. 98504680 was filed April 17, 2024 for “Scented oils; Scented oils used to produce
aromas when heated; Refills for electric diffusers for air fragrancing preparations,” under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming first use as early as July 2021 and
first use in commerce as early as December 2021. Second NOR Exh. G (19 TTABVUE 18-21).
The mark is described as “the word ‘scently’ along with an abstract graphic of a flower set
left of the word.
21 Serial No. 97082461 was filed October 19, 2021 for “Scented oils” under Trademark Act
Section 1(a), claiming first use as early as July 1, 2021 and first use in commerce as early as
October 1, 2021. The mark is described as “the word ‘scently’ in black along with an abstract
graphic of a flower in pink next to the word.” The colors black and neon pink are claimed as
a feature of the mark. 19 TTABVUE 4-7 (Second NOR Exh. E).
22 19 TTABVUE (Second NOR).
23 17 TTABVUE 4 (Palgon Decl. ¶ 9).

Opposition No. 91293506
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competitor has standing because it has an interest in the outcome beyond that of the
general public); NT-MDT LLC v. Kozodaeva, No. 92071349, 2021 TTAB LEXIS 112,
at *15 (“Petitioner has established ... that it ... is a competitor of Respondent ... [and]
uses a mark with the same wording and design as the mark [in Respondent’s] ...
registration;” therefore showing its entitlement to seek cancellation of Respondent’s
mark); Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347,
at *13 (standing is established by testimony, with exhibits, of use of similar mark).
Having established entitlement as to at least one claim, Opposer also has satisfied
the entitlement requirement for any other legally sufficient claim. Nike, Inc. v. Palm
Beach Crossfit, Inc., No. 91218512, 2015 TTAB LEXIS 314, at *7. Moreover, Applicant
did not challenge Opposer’s entitlement to a statutory cause of action.
IV. Likelihood of Confusion
“Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of
a mark that ‘[c]onsists of or comprises a mark which so resembles a mark registered
in the Patent or 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.’” Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181,
2024 TTAB LEXIS 139, at *10. “To prevail on its Section 2(d) claim, Opposer must
show by a preponderance of the evidence that it has either a registration of or priority
in its [SCENTLY-formative] mark[s], and that Applicant’s use of its mark is likely to

Opposition No. 91293506
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cause confusion, mistake, or deception regarding the source of the [goods] identified
in its Application.” Id. (citation omitted).
We turn first to the issue of priority.
A. Applicant
Applicant did not introduce any testimony or other evidence, but the filing date of
the application constitutes Applicant’s constructive use date for priority purposes –
that is, November 21, 2023. Trademark Act Section 7(c), 15 U.S.C. § 1057(c); see
also Brewski Beer Co. v. Brewski Bros. Inc., No. 92021735, 1998 TTAB LEXIS 116, at
*10, cited in Tao Licensing, LLC v. Bender Consulting Ltd., No. 92057132, 2017
TTAB LEXIS 437, at *11.
Opposer made of record Applicant’s deemed admissions regarding Applicant’s first
use of its mark to show that Applicant did not prove use before its November 21, 2023
constructive use date. Applicant admitted the following:
• Applicant did not obtain rights to the URL www.scent.ly until after
2022.
• Applicant did not have any marketing or advertising efforts for the
SCENTLY mark outside the State of Texas before 2023.
• The Specimen provided on Nov. 21, 2023 with Applicant’s
Application including a picture of a bottle as an “Actual product” was
not in use in commerce at the time of the Application.
• Applicant did not adopt Applicant’s mark until 2022 or later.
• Applicant did not make any use in commerce of Applicant’s Mark by
offer or sale in interstate commerce before 2022.
• Applicant made no use of Applicant’s Mark anywhere before 2020.
• Applicant did not make any use in commerce of Applicant’s Mark
until after 2022.

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• Applicant did not make any use in commerce of Applicant’s Mark
until after January 2, 2023.24
None of these admissions evidence Applicant’s use of its applied-for mark for any
specific goods prior to Applicant’s constructive use date of November 21, 2023.
Nor are there any admissions or admissions against interest in Applicant’s
Amended Answer affecting its priority date. Applicant admitted that “while its initial
sales activities were concentrated in the Midwest United States, its product roadmap
contemplated expansion to the remaining contiguous United States, including Alaska
and Hawaii, by the end of 2023,”25 but this vague statement is not sufficient to move
the priority date back before November 21, 2023. Applicant asserted in its Amended
Answer that, prior to filing its application it had imported goods into the United
States and had completed sales to more than two thousand customers throughout the
United States,26 but this self-serving statement is neither an admission against
interest nor has it been supported by evidence. Nor does the Internet website evidence
made of record by Opposer (from “The Wayback Machine” and the website at the
domain name scent.ly) support an earlier priority date.27
Thus, we utilize November 21, 2023 as Applicant’s earliest priority date.
24 See 18 TTABVUE 10-11 (First NOR, RFA Nos. 3-10).
25 Id. at 10 ((Amended Answer ¶ 35).
26 9 TTABVUE 8-9, 10 (Amended Answer ¶¶ 24, 36).
27 20 TTABVUE 2 (Third NOR). The archived Wayback Machine evidence was not
authenticated by testimony, and so we may rely on it only for what it shows on its face. State
Permits, Inc. v. Fieldvine, Inc., No. 92075095, 2024 TTAB LEXIS 291, *10. These pages state
variations of the phrase “the domain name scent.ly is for sale.” Id. at 4-21 (Third NOR Exhs.
H-J).

Opposition No. 91293506
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B. Opposer
Opposer must establish prior proprietary rights (i.e., priority) in a distinctive
source identifier prior to November 21, 2023. Otto Roth & Co. v. Univ. Foods Corp.,
640 F.2d 1317, 1320 (CCPA 1981); see also DowntownDC Bus. Improvement Dist. v.
Clarke, No. 91275100, 2024 TTAB LEXIS 412, at *37 (“To establish priority on a
likelihood of confusion claim, a party must prove that, vis-à-vis the other party, it
owns a mark or trade name previously used in the United States and not
abandoned.”); Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 1162 (Fed. Cir.
2002) (“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.”).
To establish its priority, Opposer must establish that its marks are inherently
distinctive or that they have acquired distinctiveness. Applicant did not challenge the
distinctiveness of Opposer’s pleaded marks. We find, therefore, that the marks are
distinctive as used with Opposer’s pleaded goods. See Giersch v. Scripps Networks,
Inc., No. 92045576, 2009 TTAB LEXIS 72, at *9 (citing, inter alia, Wet Seal Inc. v. FD
Mgmt. Inc., No. 91157022, 2007 TTAB LEXIS 21, at *14 (absent argument or evidence
from applicant or elsewhere in the record, opposer’s mark deemed distinctive)).
Opposer did not plead ownership of a prior registration but did plead ownership
of two applications. An opposer may rely upon the filing dates of a prior pending
application for priority purposes contingent upon the ultimate issuance of a
registration. Larami Corp. v. Talk to Me Progs., Inc., No. 91085987, 1995 TTAB

Opposition No. 91293506
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LEXIS 13, at *14 n.7. But neither of the two pleaded applications qualify: Opposer’s
later-filed ’680 Application does not form a basis for priority, and the prior ’461
Application filed by Scently Inc. was refused registration and abandoned.28 See Life
Zone Inc. v. Middleman Grp., No. 91160999, 2008 TTAB LEXIS 37, at *21 (an
opposer’s later-filed application does not provide a basis for priority); Kemi Organics,
LLC v. Gupta, No. 92065613, 2018 TTAB LEXIS 149, at *17-18 (abandoned
application is probative only to show it was filed). Both applications are relevant, if
at all, only insofar as they bear on Opposer’s claim of prior actual use of its pleaded
common law marks.29
Opposer argues it has common law use of its SCENTLY marks in interstate
commerce from December 2021, and anywhere as early as July 2021.30 In support of
its claim of common law priority, Opposer relies largely on Applicant’s deemed
discovery admissions and the declaration of Mr. Palgon, along with the attached
exhibits.31 We address these in turn, along with Applicant’s Amended Answer.
28 We address the apparent corporate conversion in note 32, infra. Unless otherwise noted,
we refer to Opposer and Opposer’s predecessor collectively as “Opposer” in this opinion for
ease of reference.
29 “Use in commerce” is not required to prove priority under Trademark Section 2(d). First
Niagara Ins. Brokers, Inc. v. First Niagara Fin. Grp., Inc., 476 F.3d 867, 871 (Fed. Cir. 2007).
Nonetheless, Opposer did not plead use analogous to trademark use, and thus we do not
consider it here. DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *8 n.10 (“Opposer
has not pleaded use analogous to trademark use and Applicant has made clear that use
analogous to trademark use is not an issue in this proceeding … [therefore] actual use in
commerce is a requirement”); Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816,
2013 TTAB LEXIS 439, at *19 (reliance on priority through analogous use must be pleaded).
Thus, actual use is the standard that Opposer must meet.
30 21 TTABVUE 9.
31 See id. Opposer’s brief refers to “facts” set forth in a chart in “OPPOSER’s STATEMENT
OF UNDISPUTED FACTS IN SUPPORT OF ITS BRIEF,” 16 TTABVUE 6-10 (Bycer Decl.
Exh. B) rather than to the evidence of record. As we stated above, this chart is argument that

Opposition No. 91293506
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1. Admissions
There are no admissions in Applicant’s Amended Answer regarding Opposer’s
priority; indeed, Applicant plainly and repeatedly denied that Opposer has priority.32
The deemed admissions establish that Opposer “sold and marketed Scented oils;
Scented oils used to produce aromas when heated; [and] Refills for electric diffusers
for air fragrancing preparations in interstate commerce since at least as early as
December 2021.”33 But critically, that admission does not identify the mark, if any,
under which the goods in quotations were sold.
The deemed admissions also prove that Opposer “established goodwill through its
use in commerce of Opposer’s Marks throughout the United States by December
should have been filed as part of Opposer’s brief, not as an exhibit to an attorney declaration
filed during the testimony period. Nonetheless, we have consulted the chart to understand
Opposer’s argument. Setting aside the untimeliness element, had the chart been included in
Opposer’s brief, the brief would not have exceeded the 55-page limitation. Trademark Rule
2.128(b), 37 C.F.R. § 2.128(b).
32 See, e.g., 9 TTABVUE 5 (Amended Answer ¶ 9) (“there is no evidence to suggest that
Opposer’s goods and services were in use in commerce regulable by the United States
Congress prior to a date shortly after April 17, 2024, the filing date of trademark application
Serial No. 98504680 with the United States Patent and Trademark Office.”). Applicant also
denied Opposer’s common law priority due to the lack of a written assignment of common law
rights in SCENTLY marks when Scently, Inc. converted to Scently, LLC, see 9 TTABVUE 7-
8 (Amended Answer ¶¶ 17-20); see also 17 TTABVUE 2-3 (Palgon Decl. ¶¶ 2, 3) (discussing a
corporate restructuring from Scently Inc. to Scently LLC). Because Applicant did not assert
this argument at trial, it has been waived. Nonetheless, even if the issue had been preserved,
under Florida law, “[a]ll real property and other property owned by, including any interest
therein and all title thereto, and every contract right possessed by, the converting eligible
entity remain the property and contract rights of the converted eligible entity without
transfer, reversion, or impairment,” FLA. STAT. § 607.11935(1)(a). A converted entity is
“[d]eemed to be the same entity without interruption as the converting eligible entity.” Id.
§ 607.11935(1)(h)(2). Any common-law rights held by Scently, Inc. would have passed to
Opposer without interruption.
33 18 TTABVUE 12 (First NOR, RFA No. 14). We note there are two requests for admission
numbered 14 – this is the second one.

Opposition No. 91293506
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2021.”34 But this admission does not identify the goods to which the claimed use
pertains, or the type of use made. Common law trademark rights are established only
when a mark is used for particular goods or services. They are not rights in gross. See
Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 703 F.2d 1372,
1374 (Fed. Cir. 1983).
Read individually, the deemed admissions establish Opposer’s sales of specified
goods under an unspecified mark as of December 2021 on one hand; and “use in
commerce” of SCENTLY marks as of December 2021 as to unspecified goods on the
other. Neither admission, standing alone, establishes use of the SCENTLY mark on
any specific goods on any specific date. Nor do the admissions refer to each other, and
the definitions in the Requests for Admission do not bridge the gap.35 Thus, we would
have to infer a link between the use in commerce of the SCENTLY mark and the
specified goods as of the claimed December 2021 date.36 We turn to the remaining
evidence of record to determine if such an inference is justified.
2. Palgon Declaration
Opposer relies on the testimony declaration of Mr. Palgon, its founder and
president. The testimony even of a single witness may be adequate to establish
34 Id. at 12-13 (RFA No. 15).
35 “Opposer’s Mark(s)” are defined only as “Opposer’s SCENTLY Marks.” Id. at 10 (RFA
Definitions ¶ 4).
36 Similarly, Applicant’s admissions that it knew “of Opposer and Opposer’s use of Opposer
marks” prior to filing Applicant’s application or Applicant’s “offering any fragrance for
household purposes in commerce,” id. at 13 (RFA Nos. 16, 17), do not establish Opposer’s use
of its SCENTLY marks for specific goods as of December 2021, or indeed any time prior to
November 21, 2023.

Opposition No. 91293506
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priority, but only if it is sufficiently probative. See Exec. Coach Builders, Inc. v. SPV
Coach Co., No. 91212312, 2017 TTAB LEXIS 201, at *36. Such testimony should not
be “characterized by contradictions, inconsistencies and indefiniteness,” but rather
should carry with it “conviction of its accuracy and applicability.” Kohler Co. v.
Baldwin Hardware Corp., No. 92041434, 2007 TTAB LEXIS 3, at *23 (citing B.R.
Baker Co. v. Lebow Bros., 150 F.2d 580, 583 (CCPA 1945)). Testimony may be
strengthened by supporting documentary evidence. Id.
Mr. Palgon testified that he is the President of Scently LLC (and was President of
Scently Inc. since 2021).37 He further attested:
3. Scently LLC is the owner of the Scently products, and rightful heir,
assign, and successor to Scently Inc., including all of our goodwill and
reputation. Even though we restructured our corporate entity, I led
marketing and sales efforts in interstate commerce with our SCENTLY
marks continually used and never abandoned our use of the Scently
name and related marks since 2021, and maintained use in interstate
commerce through the period 2021 until today.
4. We established its reputation in the household goods, and fragrance
market. We also manufacture and sell fragrance for household purposes;
Scented oils; Scented oils used to produce aromas; and Refills for electric
diffusers for air fragrancing preparations, through our e-commerce
platform and third-party online stores.
5. We register the URL domain www.scently.us on August 23, 2020, as
corroborated in the WHOIS domain registry listing at
https://www.whois.com/whois/scently.us (accessed October 13, 2025)
submitted herewith as Exhibit Z.
6. We adopted a SCENTLY mark and applied it on goods at least as early
as July 2021. We sell our marked goods on e-commerce platforms, and
our own website. Based on our use in commerce, I filed an application
for our logo mark SCENTLY (Appl. 97082461) on Oct. 19, 2021, and filed
such application pro se. A true and correct copy of the TSDR record is
attached as Exhibit E.
37 17 TTABVUE 2 (Palgon Decl. ¶ 1).

Opposition No. 91293506
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7. Our use of our SCENTLY marks Mark [sic] has been valid and
continuous in interstate commerce since the dates of first use of as least
as early as October 2021. We have not abandoned our Scently marks.
8. Our products are sold under a SCENTLY brand line (with and without
stylization) and have been and continue to be marketed, advertised, and
sold under and in connection with our SCENTLY brands. We have
significant common law rights as our products are marketed in the
literal name SCENTLY, and stylized SCENTLY mark (below), both
colored and without color.
9. We, through its use of our SCENTLY Marks, have established
significant common law rights for the literal mark SCENTLY and its
stylized marks (above) based on its long and extensive nationwide use
in connection with fragrance and scent oils, refills, and apparati [sic]
used to distribute such oils, etc.
11. Opposer’s Mark is symbolic of extensive goodwill and consumer
recognition built up by Opposer during substantial amounts of time and
effort in use, advertising, and promotion. Opposer’s Mark identifies and
distinguishes Opposer’s goods from the goods and services of others and
identifies the source and origin thereof to both the trade and the public.
15. We have priority to use a SCENTLY mark in interstate commerce
over-and-above Applicant Scentacious based on our earlier adoption and
procurement of goodwill …. Our common law rights date to our launch
in 2021, and our intent to secure such rights is evident in our above-
referenced applications.
….
18. We have established significant goodwill and reputation throughout
the United States in our Scently marks.
20. We have obtained and satisfied customers, and shipped products to
forty-six of the United States. Our reputation and goodwill is significant
and is built on our brand recognition of the Scently marks which have
been prominently marketed and advertised continuously since 2021.

Opposition No. 91293506
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21. Our marketing efforts reach through the Internet to every State, and
our marketing efforts include targeted advertisements throughout the
United States, including roadside advertising .…38
The declaration evidence suffers from many of the same deficiencies as the deemed
admissions:
• Paragraphs 6 and 7 do not specify the goods on which Opposer used the
SCENTLY mark in July (which comports with Opposer’s claim of “first
use anywhere” in its application) or October 2021.
• Paragraph 6 states that Opposer first applied the mark on goods in July
2021, but nothing about selling those goods. On the other hand, this
paragraph, as well as Paragraph 4, state that Opposer “sell[s]” (present
tense) such goods on Opposer’s website and e-commerce platforms.
• Paragraphs 8 and 20 do not define the “products” sold under a
SCENTLY mark.
• Paragraph 8, like Paragraph 6, states that: “Our products are sold
[present tense] under a SCENTLY brand line (with and without
stylization) and have been [without a time period] and continue to be
[present tense] marketed, advertised, and sold under and in connection
with our SCENTLY brands.” Similarly, Paragraph 21 regarding
marketing efforts is stated in the present tense.
• Paragraph 9, on the other hand, addresses “long and extensive
nationwide use” in connection with specific products, but this testimony
is vague and nonspecific as to time period.
• Paragraph 11 discusses “substantial amounts of time and efforts,” but
does not supply any specifics.
• Paragraphs 3, 11, 15, 18, and 20 refer to Opposer’s “goodwill” built on
advertising and marketing since 2021, but not as to any specific
“products.”
• The dates in July and October 2021 in Paragraphs 6 and 7 conflict with
Opposer’s other evidence and allegation that it has priority based on use
in commerce from December 2021.
38 Id. at 3-5 (Palgon Decl. ¶¶ 3-9, 11, 15, 18, 20-21).

Opposition No. 91293506
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Frankly, it is surprising that there is no single direct statement, or combination
thereof, in the Palgon testimony declaration that says, simply, “Opposer has been
selling [specific products] in commerce under the mark SCENTLY since [month,
date], 2021.” Mr. Palgon’s testimony is phrased in the present tense (i.e., “we sell,”
“we operate”). The declaration is vague, inconsistent, and confusing. So again, we
would have to read between the lines of the declaration and draw inferences that
Opposer sold fragrances; scented oils; apparatuses (which we infer are fragrance
diffusers) and refills for diffusers under one of Opposer’s SCENTLY-formative marks
since some date in 2021.39
This unchallenged testimony might be sufficient, despite its vague and confusing
nature, if Opposer had supplied some documentary evidence to back up its claims and
bolster the required inferences. But, as we discuss below, it did not do so. In fact, the
supporting documents raise more questions than they answer.
3. Documentary Evidence
The documentary evidence attached to Mr. Palgon’s declaration falls into several
categories: (1) photographs; (2) records pertaining to a registration for the domain
name scently.us; and (3) printouts from that website.
39 To be clear, the unexplained inconsistencies in the dates do not matter merely because we
cannot determine which date or dates are correct; any of these dates would predate
Applicant’s 2023 priority date. Rather, the varying dates matter because the lack of
specificity goes to the credibility of the testifying witness and the reliability of the declaration
as a whole.

Opposition No. 91293506
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a. Photographs
There are two photographs attached to the declaration. First, Mr. Palgon testified
that: “An early version of our marked product with a Scentl mark, taken at least as
early as December 2021, is shown in situ in Exhibit M.”40 This photograph is shown
below, with the markup in original:
41
40 17 TTABVUE 6 (Palgon Decl. ¶ 16).
41 Id. at 12 (Palgon Decl. Exh. M).

Opposition No. 91293506
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When we crop and enlarge this photograph, we see that the device (which we take
to be a fragrance diffuser) is branded with the wrong mark – SCENTL, not
SCENTLY:
This aligns with Mr. Palgon’s testimony above that the product had “a Scentl mark.”42
The SCENTL mark on the product is a different mark from the pleaded SCENTLY
marks, and a plaintiff may not establish priority in an unpleaded mark. Cf. Odom’s
Tenn. Pride Sausage, Inc. v. FF Acquisition, LLC, 600 F.3d 1343, 1346 (Fed. Cir.
2010) (Board was not required to consider unpleaded common law marks in
dismissing notice of opposition on summary judgment).
In any event, even crediting the photograph as authentic, it is a photograph of a
mis-marked device “in situ” on a furnace room floor, alleged to have been taken “as
early as December 2021.”43 The photograph does not establish, without supporting
42 Id. at 6 (Palgon Decl. ¶ 16).
43 In these days of digital photographs and metadata, it is somewhat surprising that the
person who captured this image could not provide the exact date it was taken.

Opposition No. 91293506
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testimony, that the depicted mis-marked “early” product was being offered for sale at
the time the photograph was taken, whenever that was. Rather, the photograph and
testimony suggest that the device shown in the photograph was a mis-marked
prototype.
Our supposition is backed up by the ’461 Application that Mr. Palgon caused to be
filed in October 2021 for the mark in connection with “scented
oils” in Class 3, purportedly “[b]ased on our use in commerce.”44 Mr. Palgon testified
that the application was abandoned because “I failed to properly respond to an issue
regarding a matching specimen ….”45
The Examining Attorney refused the ’461 Application on two bases, both
concerning the specimen of use. First, the Examining Attorney found that
the specimen does not show the applied-for mark as actually used in
commerce in connection with any of the goods and/or services specified
in International Class 003 … Specifically, the specimen of record
displays and is identified by applicant as showing “a device that Scently
has developed to enable the spraying of essential oil to help fragrance
the home.” However, the identification of goods covers “scented oils” not
essential oil devices. Thus, the specimen does not show the proposed
mark as actually used in commerce in connection with any of the goods
identified in International Class 003.46
Thus, although Opposer applied for the mark for “scented oils,” the specimen of
use was a photograph of a diffuser – possibly, given the timing, the same diffuser
44 17 TTABVUE 3 (Palgon ¶ 6); 19 TTABVUE 4-7 (Second NOR Exh. E).
45 17 TTABVUE 4 (Palgon ¶ 12).
46 19 TTABVUE 10 (Second NOR Exh. F).

Opposition No. 91293506
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pictured above in the furnace photograph.47 Our theory that the specimen of use
showed the same mis-marked product as in the photograph is borne out by the second
reason for refusal:
[T]he specimen appears to consist of a digitally created or altered image
or a mockup of a depiction of the mark on the goods or their packaging
and does not show the applied-for mark as actually used in commerce in
International Class 003. … In this case, the letter “Y” of the word
“SCENTLY” appears to have been drawn or superimposed onto the
goods displayed and is not on with [sic] the flower design and wording
“SCENTL.” Therefore, the specimen does not show actual use of the
mark in commerce.48
In other words, the Examining Attorney asserted that Opposer had digitally
inserted a “Y” after the mark SCENTL appearing on the product. After receiving this
refusal, Opposer abandoned the ’461 Application rather than substituting an
acceptable specimen.
In short, we cannot draw the necessary inferences that Opposer was offering any
products for sale under a SCENTLY-formative mark in 2021 based on the furnace
photograph, which does not even show the SCENTLY mark. Indeed, the history
recounted above relating to Opposer’s abandoned application could explain the
vagueness and inconsistencies in Mr. Palgon’s sworn testimony in this proceeding.
For all these reasons, the furnace photograph does not support Opposer’s priority
claim.
47 17 TTABVUE 6 (Palgon Decl. ¶ 16). Unfortunately, the specimen of use is not in the record,
nor can we take judicial notice of it. See Trademark Rules 2.122(d) and 2.122(e), 37 C.F.R.
§§ 2.122(d), 2.122(e); see also Flame & Wax, Inc. v. Laguna Candles, LLC, No. 92072343, 2022
TTAB LEXIS 272, at *42-43 n.57 (“The Board’s well-established practice is not to take judicial
notice of USPTO records”).
48 19 TTABVUE 11 (Second NOR Exh. F).

Opposition No. 91293506
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Next, Mr. Palgon supplied a photograph of a billboard advertising Opposer’s
product, which he described as follows:
Our marketing efforts reach through the Internet to every State, and
our marketing efforts include targeted advertisements throughout the
United States, including roadside advertising. For instance, we
established a billboard at or near 4006 E. Speedway Blvd., in Tucson,
Arizona. Submitted herewith, Exhibit N is a photograph of our recent
billboard taken on or about August 2024 in Arizona, noting our e-
commerce website at scently.us.49
This photograph, which displays a diffuser device similar in appearance to the
“early” device shown in the furnace photograph above, is reproduced below:
50
49 17 TTABVUE 6 (Palgon Decl. ¶ 21).
50 Id. at 13-14 (Palgon Decl. Exh. N).

Opposition No. 91293506
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Missing from the declaration and billboard photograph is any indication of when the
billboard was erected (e.g. how long it had been in place prior to the photograph taken
in August 2024).
Moreover, the mark appears in the photograph only in the domain name
scently.us. Use of a mark in a domain name does not give rise to trademark rights
when it indicates only an address on the internet and not the source of the goods. See
In re Supply Guys, Inc., No. 77027094, 2008 TTAB LEXIS 12, at *16 (“Obviously, a
website can be used for multiple purposes and the simple fact that a term is used as
part of the internet address does not mean that it is a trademark for the goods sold
on the website”); Exec. Coach, 2017 TTAB LEXIS 201, at *81 (“Considering Opposer’s
use of the domain names … these names per se merely indicate Internet addresses
where Opposer’s websites offering vehicles under the EXECUTIVE COACH mark
could be found. Here, the domain names do not separately identify Opposer’s goods
or retail sales services”).
Moreover, when we enlarge the photograph of the device on the billboard, it
appears to have been digitally altered to remove or blur a mark on the device:

Opposition No. 91293506
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51
We cannot determine whether the apparent alteration is in the original billboard
or whether it was made to the photograph. The photograph above bears the word
“crop” on the top, suggesting it may have been altered in some way from the original
(though cropping alone would not necessarily mean that the matter visible in the
image had been changed from its original appearance).52 Either way, the billboard
advertisement does not bear the mark SCENTLY, and there is no testimony to
establish a definite time period of use. In short, the Palgon testimony and billboard
photograph do not give us any confidence that Opposer was selling diffusers, or any
other products, under a SCENTLY mark prior to November 21, 2023.
51 Id.
52 See supra image at note 50.

Opposition No. 91293506
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b. Domain Name Registration and Website Printouts
We turn next to the evidence of the registration of Opposer’s domain name and its
website.53 Mr. Palgon testified as follows:
5. We register [sic] the URL domain www.scently.us on August 23,
2020, as corroborated in the WHOIS domain registry listing at
https://www.whois.com/whois/scently.us (accessed October 13, 2025)
submitted herewith as Exhibit Z.
6. …We sell our marked goods on e-commerce platforms, and our own
website.
….
22. We operate an e-commerce website as shown in the attached
screenshots. A true and correct copy of https://scently.us/
products/cinematic-cinnamon-fragrance only (accessed April 17, 2024) is
submitted as Exhibit O, while a current true and correct copy of the
same site as it is currently published at https://scently.us/
products/cinematic-cinnamon-fragrance-only (accessed October 12,
2025) is submitted as Exhibit P.
23. A true and correct copy of a current e-commerce listing of our
fragrance décor item found at https://scently.us/products/cloud-
nineflower?variant=41076434731077 (accessed October 12, 2025) is
submitted as Exhibit Q.
24. A true and correct copy of a current e-commerce listing of our diffuser
device item found at https://scently.us/porducts/the-rocket-mint-color
(accessed April 17, 2024) is submitted as Exhibit R.54
The only activity described in this testimony that predates Applicant’s
constructive use priority date is Opposer’s domain name registration on August 23,
2020. The mere registration of a domain name does not constitute use of a trademark.
Stawski v. Lawson, No. 94002621, 2018 TTAB LEXIS 438, at *27-28 (citing
Brookfield Comms., Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1051 (9th Cir.
53 17 TTABVUE 50-56 (Palgon Decl. Exh. Z).
54 Id. at 3, 6 (Palgon Decl. ¶¶ 5-6, 22-24).

Opposition No. 91293506
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1999) (“Registration [of a domain name] with [domain name registrar], however, does
not in itself constitute ‘use’ for purposes of acquiring trademark priority.”)).
The printouts from this website supplied by Mr. Palgon were created in 2024 and
2025.55 The earliest of these is April 17, 2024, which show the offering for sale of
Opposer’s “Rocket” diffuser and refill scents.56 There is no supporting testimony or
evidence that indicates that the website at scently.us was active and selling
SCENTLY-branded products prior to Applicant’s constructive priority date,
November 21, 2023; and if it was, there is no proof what those products were. In short,
neither the domain name registration nor the website printouts support Opposer’s
claim of priority.
C. Conclusion on Priority
“[T]he decision as to priority is made in accordance with the preponderance of the
evidence.” Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1472 (Fed.
Cir. 1987). “[W]hether a particular piece of evidence by itself establishes prior use is
not necessarily dispositive as to whether a party has established prior use by a
preponderance. Rather, one should 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.” W. Fla. Seafood, Inc. v. Jet Rests., 31 F.3d 1122, 1125-26 (Fed. Cir.
1994) (cautioning against dissecting evidence).
55 See id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R) (websites printed April 17, 2024); id. at
22-32 (Palgon Decl. Exhs. P, Q) (website printed October 12, 2025).
56 Id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R).

Opposition No. 91293506
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Considering the evidence as a whole, we find that Opposer has failed to prove its
priority of common law use by a preponderance of the evidence. The earliest date of
first use we can confidently determine is April 2024, when the website printouts show
the offering for sale of Opposer’s diffuser and refill scents.57 It is not enough to show
that Opposer may have done business under a SCENTLY mark without showing the
goods with which the mark was used in commerce and when.
We are influenced both by what is in the record and what is missing. The deemed
admissions don’t quite get Opposer there. Mr. Palgon’s declaration is vague,
inconsistent, contradictory, and wholly unsupported by the documentary evidence.
Although he testified that Opposer has “shipped products to forty-six of the United
States,”58 there are no orders, invoices, or other sales records to back up this broad
claim or put a time frame around it. Mr. Palgon testified that Opposer’s domain name
scently.us was registered in 2020, but the only printouts of the operational website
were printed years later in April 2024 and October 2025. The photographs (furnace,
billboard) do not show the pleaded marks on Opposer’s goods or prove sales of any
goods under those marks.
These issues alone are sufficient for us to conclude that Opposer has not carried
its burden of proving, by a preponderance of the evidence, that the SCENTLY marks
were in use for the pleaded goods before November 21, 2023. But the evidence also
raises troubling questions as to whether the billboard photograph, or (as the
57 Id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R).
58 Id. at 5 (Palgon Decl. ¶ 20).

Opposition No. 91293506
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Examining Attorney found) the specimen of use supporting the abandoned ’461
Application, were digitally altered. This casts further doubts on the reliability of Mr.
Palgon’s testimony.
In light of all of these issues with the limited record before us, we are not willing
to draw the necessary inferences from the deemed admissions and the testimony. We
find the evidence of record is not sufficiently definite and consistent, and not
supported by documentary evidence, to demonstrate Opposer’s priority of use before
the filing dates of the application. See Mars Generation, 2021 TTAB LEXIS 386, at
*23 (probative value of testimony regarding use “significantly undermined” by
witness’ utter lack of detail); H. Betti Indus. v. Brunswick Corp., 1981 TTAB LEXIS
75, *25-26 (no number in original) (vague, indefinite, and inconsistent testimony not
accompanied by documentary evidence inadequate to support priority claim).
Having failed to establish priority by a preponderance of the evidence, Opposer
cannot prevail on its likelihood of confusion claim. Exec. Coach, 2017 TTAB LEXIS
201, at *89.
Decision
Opposer’s opposition to registration of Serial No. 98280124 based on likelihood of
confusion and fraud is dismissed.