Invictus Fitness, Inc. v. Invictus Fitness LLC

OCR transcription for search; preserved printed pages are authoritative

This Opinion is Nota
Precedent of the TTAB

Mailed: August 24, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Invictus Fitness, Inc.

Invictus Fitness LLC

Opposition No. 91287399

Olivia M. Muller of Erik M. Pelton & Associates, PLLC,
for Invictus Fitness, Inc.

Jeffrey Sturman of Sturman Law, LLC,
for Invictus Fitness LLC.

Before Larkin, Elgin, and Brock,
Administrative Trademark Judges.

Opinion by Brock, Administrative Trademark Judge:

Invictus Fitness, Inc. (““Opposer”) opposes registration on the Principal Register of
the mark INVICTUS FITNESS (FITNESS disclaimed) in standard characters for the
following services in International Class 41:

Coaching in the field of exercise, fitness, and nutrition; Consulting
services in the fields of fitness and exercise; Counseling services in the
field of physical fitness; Personal fitness training services and
consultancy; Physical fitness assessment services for sports training
purposes; Physical fitness conditioning classes; Physical fitness

Opposition No. 91287399
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instruction; Arranging and conducting of educational courses in the
field of nutrition; Providing training in the field of exercise, fitness,
nutrition, and physical strength; Providing training in the field of
exercise, fitness, nutrition, and physical strength as part of a wellness
program.1
Opposer asserts one ground for opposition,2 priority and likelihood of confusion
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on ownership of
alleged prior rights in the common law trademarks INVICTUS and INVICTUS
FITNESS, both in connection with the following alleged goods and services:
“providing fitness and exercise facilities; in-person and online fitness training, classes
and programming; providing information on fitness, nutrition, and health; blog
services; clothing and apparel; a website featuring information, videos, and articles
in the field of fitness, health, and exercise; online store services featuring apparel, e-
books, and videos; and books and e-books in the field of exercise, health, and fitness.”3
Opposer additionally alleges that it uses the INVICTUS and INVICTUS FITNESS
marks in connection with “sponsorship of individuals and teams in domestic and
international fitness competitions.”4
1 Application Serial. No. 97909386 was filed on April 26, 2023, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging June 30, 2008 as the date of first use anywhere
and in commerce. Citations are to the downloadable .pdf versions of documents in the
Trademark Status & Document Retrieval (TSDR) database.
2 In the notice of opposition, Opposer also asserted the ground of fraud, 1 TTABVUE 1, 7-9,
but expressly waived that ground at trial. Opposer’s main brief, 24 TTABVUE 8 n.1.
Citations to the trial record refer to TTABVUE, the Board’s online docket system.
3 Notice of opposition, 1 TTABVUE 3-4.
4 Id. at 4.

Opposition No. 91287399
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In its answer, Applicant did not dispute likelihood of confusion and asserted the
following denials and admissions:5
45. Applicant denies that Applicant’s INVICTUS FITNESS trademark
is confusingly similar to Opposer’s INVICTUS trademark. Rather,
Opposer’s INVICTUS trademark is confusingly similar to Applicant’s
INVICTUS FITNESS trademark.
46. Applicant denies that Applicant’s INVICTUS FITNESS trademark
is confusingly similar to Opposer’s INVICTUS FITNESS trademark.
Rather, Opposer’s INVICTUS FITNESS trademark is confusingly
similar to Applicant’s INVICTUS FITNESS trademark.
47. Applicant admits that Opposer’s Trademarks and Applicant’s
Trademark are identical or nearly identical in appearance, sound,
meaning, and commercial impression.
48. Applicant admits that Applicant’s Services in connection with
Applicant’s Trademark and Opposer’s Goods and Services in connection
with Opposer’s Trademarks are identical and/or overlapping.6
Each party filed a trial brief and Opposer filed a reply brief.7
I. Trial Record
The record consists of the pleadings and the files of the opposed application, under
Trademark Rule 2.122(b)(1), as well as evidence introduced by the parties as
described below.
Opposer introduced:
• notices of reliance on
5 As Opposer waived its fraud ground, see n.2 supra, we repeat Applicant’s admissions as to
the likelihood of confusion ground only.
6 Answer, 4 TTABVUE 8. Applicant’s exclusive focus on priority continues in its trial brief,
which begins: “Opposer has failed to demonstrate priority in this matter and therefore cannot
prevail on their [sic] claim of likelihood of confusion.” 25 TTABVUE 4.
7 Opposer’s main brief, 24 TTABVUE; Applicant’s brief, 26 TTABVUE; Opposer’s reply brief,
29 TTABVUE.

Opposition No. 91287399
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o dictionary definitions of INVICTUS and FITNESS;8
o Applicant’s responses to Opposer’s discovery requests;9 and
o discovery deposition of Applicant’s sole principal, Nicole Renna (“Renna
Deposition”);10
• testimony declaration of Opposer’s president, Christopher James “CJ” Martin
and exhibits A-AE thereto (“Martin Declaration”);11
Applicant introduced:
• testimony declaration of Ms. Renna (“Renna Declaration”).12
We have considered the entire record, even if we do not discuss all of it. 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.”)
(quotation omitted).
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020);
Austl. 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,
8 16 TTABVUE.
9 17 TTABVUE (confidential), 18 TTABVUE (public).
10 19 TTABVUE (confidential), 20 TTABVUE (public).
11 22 TTABVUE (confidential), 21 TTABVUE (public). These exhibits include, inter alia,
TSDR records for Opposer’s pending application Serial No. 98180597 for INVICTUS and
Serial No. 98180610 for INVICTUS FITNESS. 21 TTABVUE 109-16.
12 23 TTABVUE.

Opposition No. 91287399
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125-26 (2014)). Opposer must prove its entitlement by a preponderance of the
evidence, see, e.g., Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022
TTAB LEXIS 228, at *8, by demonstrating that it has: (1) an interest falling within
the zone of interests protected by the statute, and (2) a reasonable belief in damage
proximately caused by the registration of the mark. Curtin v. United Trademark
Holdings, Inc., 137 F.4th 1359, 1367 (Fed. Cir. 2025) (citing Lexmark, 572 U.S. at
129-134), cert. denied, 2026 U.S. LEXIS 1831 (Apr. 20, 2026)).
The parties are competitors13 and Applicant sent Opposer a cease-and-desist
letter.14 In view thereof, by a preponderance of the evidence, Opposer has established
its entitlement to oppose registration of Applicant’s mark. Milwaukee Elec. Tool Corp.
v. Freud Am., Inc., No. 92059634, 2019 TTAB LEXIS 384, at *11 (entitlement
established because parties are competitors); Miller v. Miller, No. 91184841, 2013
TTAB LEXIS 1, at *10-12 (competitive need and cease-and-desist letter establish
entitlement). Applicant does not dispute Opposer’s entitlement.
III. Priority and Likelihood of Confusion
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), permits opposition to
registration of an applied-for mark based on likelihood of confusion with “a mark
registered in the Patent and Trademark Office, or a mark or trade name previously
used in the United States . . . and not abandoned.” The parties agree that the issue
13 Answer, 4 TTABVUE 8 (“48. Applicant admits that Applicant’s Services in connection with
Applicant’s Trademark and Opposer’s Goods and Services in connection with Opposer’s
Trademarks are identical and/or overlapping.”).
14 Renna Deposition, Exhibit 5, 20 TTABVUE 111-12.

Opposition No. 91287399
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here is priority.15 We agree that confusion is likely because the parties’ fitness
services are overlapping, and their marks – Applicant’s INVICTUS FITNESS and
Opposer’s INVICTUS FITNESS and INVICTUS – are identical or nearly so, differing
only by the generic term FITNESS in one mark, which has no source-indicating
significance in this case. See In re The Place, Inc., No. 76436826, 2005 TTAB LEXIS
451, at *3. We accordingly focus on Opposer’s proof of priority.
To establish priority, Opposer must show proprietary rights in its pleaded
INVICTUS FITNESS or INVICTUS marks, which 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. See Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 1162 (Fed. Cir. 2002) (internal citations omitted); Embarcadero Techs., Inc. v.
RStudio, Inc., No. 91193335, 2013 TTAB LEXIS 6, at *28-29 (citing Hydro-Dynamics
Inc. v. George Putnam & Co. Inc., 811 F.2d 1470 (Fed. Cir. 1987)); Sage Therapeutics,
Inc. v. SageForth Psych. Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139, at *10-
11. Here, Opposer relies only on its common law rights in its alleged marks. Thus, we
must determine whether Opposer established “proprietary rights in its pleaded
common-law mark[s] that precede [Applicant’s] actual or constructive use of its
involved mark.” Kemi Organics, LLC v. Gupta, No. 92065613, 2018 TTAB LEXIS 149,
at *10 (internal quotation omitted). The parties do not dispute that INVICTUS and
15 24 TTABVUE 7, 21; 26 TTABVUE 4.

Opposition No. 91287399
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INVICTUS FITNESS are inherently distinctive for fitness-related goods and
services,16 so the only issue is who used one of them first as a mark.
Applicant may rely on its constructive use date (April 26, 2023, when it filed the
use-based application) or any earlier priority date it is able to prove. 15 U.S.C.
§ 1057(c). (“The filing of the application to register [a] mark shall constitute
constructive use of the mark, conferring a right of priority, nationwide in effect, on or
in connection with the goods or services specified.”); see also Cent. Garden & Pet Co.
v. Doskocil Mfg. Co., No. 91188816, 2013 TTAB LEXIS 439, at *13 n.14 (constructive
use is available to applicants based on both intent-to-use and use-based
applications.).
As the plaintiff and alleged prior user in this proceeding, Opposer bears the
burden of proving priority by a preponderance of the evidence. Bose Corp. v. QSC
Audio Prods., 293 F.3d 1367, 1370 (Fed. Cir. 2002) (“[T]he burden of proof rests with
the opposer … to produce sufficient evidence to support the ultimate conclusion of
[priority of use] and likelihood of confusion”).
We begin by determining whether Applicant may rely upon an earlier priority date
than its April 26, 2023 application filing date.
16 Opposer asserts that its INVICTUS and INVICTUS FITNESS marks are distinctive for
fitness goods and services, 24 TTABVUE 23; Applicant does not dispute this, see 26
TTABVUE; and Applicant admitted in its answer that the parties’ marks are “identical or
nearly identical” and used in connection with “identical and/or overlapping” goods and
services. 4 TTABVUE 8.

Opposition No. 91287399
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A. Applicant’s First Use
In the application, Applicant claimed first use of its mark in connection with the
recited fitness services at least as early as June 30, 2008. However, “[t]he 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.” Trademark Rule 2.122(b)(2); 37 C.F.R. § 2.122(b)(2).
“Establishing the truth of these or any other matters asserted in the files of these
applications and registrations shall be governed by the Federal Rules of Evidence,
the relevant provisions of the Federal Rules of Civil Procedure, the relevant
provisions of Title 28 of the United States Code, and the provisions of this part.” Id.
Applicant relies on the testimony of one witness to establish its first use. Oral
testimony, even of a single witness, may prove priority if it is “sufficiently probative.”
Araujo v. Framboise Holdings, Inc., 99 F.4th 1377, 1380 (Fed. Cir. 2024). Applicant’s
evidence consists only of the Renna Declaration, dated July 10, 2025; it comprises
twelve sentences and does not have any supporting exhibits.17 Cf. Exec. Coach
Builders, 2017 TTAB LEXIS 201, at *36 (“Oral testimony is strengthened by
corroborative documentary evidence”). “While it is certainly preferable for a party’s
testimony to be supported by corroborating documents, the lack of documentary
evidence is not fatal.” Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La
Michoacana, Inc., No. 92047438, 2011 TTAB LEXIS 164, at *32. But testimony alone
may suffice only when it is “clear, consistent, convincing, and uncontradicted.” Id.
17 See 23 TTABVUE.

Opposition No. 91287399
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(citing Nat’l Blank Book Co. v. Leather Crafted Products, Inc., No. 9163936, 1983
TTAB LEXIS 107, at *6 (oral testimony may be sufficient to prove the first use of a
party’s mark when it is based on personal knowledge, it is clear and convincing, and
it has not been contradicted)).
Ms. Renna is Applicant’s “sole principal”18 and she testified that she “operate[s]
[Applicant] and oversee[s] all aspects of Applicant’s business.”19 Ms. Renna stated
that Applicant has used the INVICTUS FITNESS mark in connection with the
applied-for fitness services “[s]ince at least as early as June 2008,”20 which
corresponds to the first use date in the application, of June 30, 2008,21 but there is no
supporting documentary evidence of Applicant’s first use, or any use at all apart from
the application specimen.22
During discovery, Opposer sought details regarding Applicant’s first use:
18 23 TTABVUE 2, ¶3.
19 Id. at ¶6.
20 Id. at ¶5.
21 This is not a conflict; because Applicant provided only the month and year in the
application, the date of first use is presumed to be the last day of June, i.e., June 30. See, e.g.,
JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS 328, at *12-13 (“When a
month and year are given without a specified day, the date presumed for purposes of
examination is the last day of the month.”) (citing TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) Section 903.06).
22 The April 26, 2023 application identifies the specimen as “website screenshots” with a URL
access date of April 26, 2023.

Opposition No. 91287399
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23
According to Applicant’s discovery responses , Applicant does not have a document
retention policy, and while it claims to document client details on paper, including
“body composition and other measurements,” this documentation is “erased
immediately after the client finishes their program.”24 Consequently, Applicant
admitted that it was unable to produce any documentation in support of its first use
of its INVICTUS FITNESS mark.25 Apart from the “month of June 2008” or “prior to
23 18 TTABVUE 9. Applicant’s Revised Responses to Opposer’s First Set of Interrogatories,
and all of its other interrogatory responses, do not include verifications. Id. at 15-16. As such,
they are ordinarily not competent evidence. See, e.g., Keystone Consol. Indus., Inc. v. Franklin
Invest. Corp., 2024 TTAB LEXIS 290 *23 n.32. But it is not clear whether Opposer sought
the missing verifications, and in any case, neither Opposer nor Applicant addressed the fact
that the responses were unverified. We will consider them under the circumstances.
24 Id. at 14.
25 Id. at 26-27.

Opposition No. 91287399
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[Ms. Renna’s] birthday in August 2008,” Ms. Renna can recall nothing about
Applicant’s first customer other than their name.26
Ms. Renna is based in Texas but recalls providing INVICTUS FITNESS services
to customers in California, New York, Indiana, Illinois, Washington, and Oregon,27
although she cannot recall precise dates or provide any supporting documentation.
She does not recall when Applicant first rendered services to customers in California
and Oregon;28 but does recall rendering services to a customer in New York “in
approximately 2019,”29 in Indiana “in approximately 2011,”30 in Illinois “in
approximately 2016,”31 and in Washington “in approximately 2015.”32
During the discovery deposition of Ms. Renna, counsel for Opposer continued to
seek details regarding Applicant’s first use of its INVICTUS FITNESS mark. After
graduating from college, Ms. Renna worked at a few gyms but did not recall exact
dates.33 Although personal trainers do not need licenses in Texas, Ms. Renna is
“licensed through a couple of different personal training certifications”; she did not
recall the years of these certifications.34 She struck out on her own in 200835 and
26 Id. at 19.
27 Id. at 10.
28 Id. at 19, 23.
29 Id. at 20.
30 Id. at 21.
31 Id.
32 Id. at 22.
33 Renna Deposition, 20 TTABVUE 11-12.
34 Id. at 13.
35 Id. at 16.

Opposition No. 91287399
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stated that her business was always called INVICTUS FITNESS36 but Applicant did
not then formally register a business or set up a website.37 Applicant’s customers
were those Ms. Renna trained through the gyms she previously worked for – and
advertising was through “word of mouth, networking.”38 She had business cards “at
some point” but they were not produced in discovery; as to other advertising, Ms.
Renna stated “I can’t give you the details … I can’t speak to the date.”39
The INVICTUS FITNESS business did not have any Google reviews from 2008 or
2009;40 Ms. Renna did not know when she started requesting Google reviews from
her clients and was also unsure about her company’s participation in business
listings:
36 Id.
37 Id. at 17-18.
38 Id.
39 Id. at 18-19.
40 Id. at 64.

Opposition No. 91287399

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Okay. Do you solicit Google reviews?

Define solicit.

Q
A
O Do you ask for them?
A Yeah, I do.
fs) And about how many would you say you have?
A I'm not aware. Whatever it says on there. I
think it's, I mean it's more than 10.

fs) Do you know about when you started asking for
those?

A I don't.

fo) So you don't have any Google reviews from
2008?

A I don't know. I guess I wouldn't, because I

don't think I had all that tech stuff set up yet.

fs) Got it. And you wouldn't have any from 2009
either?
A No. Whenever I set it up is, I guess, when I

probably started getting them. I don't know that date.
fs) Do you have business listings in any online

directory?

-138-

Opposition No. 91287399
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41
She was also uncertain about who had access to her company’s Yelp page and had
changed Applicant’s “established” date from 2009 to 2008 during the course of the
instant proceedings.42
Most of the documentation of Applicant’s existence in the record appears to have
come from Opposer’s own investigations and was presented to Ms. Renna to
authenticate during her deposition. Despite being the “sole principal”43 “operat[ing]
[Applicant] and oversee[ing] all aspects of Applicant’s business,”44 she was
surprisingly unfamiliar with what little documentation was to be found. We detail it
41 Id. at 64-65.
42 Id. at 65-68.
43 23 TTABVUE 2, ¶3.
44 Id. at ¶6.

Opposition No. 91287399
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below, in date order, and include representative examples of both the documentation
and Ms. Renna’s identification:
• March 28, 2010 – creation date of Applicant’s Facebook business page;45
45 Id. at 61, 120 (Exhibit 8, image cropped).

Opposition No. 91287399
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• April 26, 2010 – archived version of Applicant’s website when it first went
live, from the Wayback Machine;46
46 Id. at 60, 119 (Exhibit 7).

Opposition No. 91287399

www. Invictusfit. corr [Ge] APR Bi) ® ®e@

seemive [https 30 2
‘ imactine 90 ceptures 26 La fi go

INVICTUSFITNESS

EMPOWER YOUR BODY. TRANSFORM YOUR LIFE. DOMINATE YOUR DESTINY,

HOME ABOUTUS | OUR PROGRAMS | TESTIMONIALS | TOOLS & RESOURCES | CONTACT

Invictus Fitness is Austin's own
premier in-home personal training
program created by acclaimed
executive fitness coach, Nicole Renna
Invictus Fitness offers a straight-
forward, honest, and informative
approach to fitness that is specifically
designed to achieve drastic, life-
changing results. We recognize that
your goals and challenges are unique.
so we tailor our ultra-successful fitness
formula to your individual needs.
Contact us today to begin taking
control of your destiny.

Nicole Renna,
Executive Fitness Coach

it matters not how strait the gate, INVICTUSFITNESS

How charged with punishments the scroll.

! am the master of my fate

1am the captain of my soul Invictus: Latin, meaning: unconquered, undefeated

rc »
— William Ernest Henley, INVICTUS COPYRIGHT 2010 INVICTUS FITNESS - AUSTIN, TEXAS - 512.809.1684 f &

7 QO All right. So this is, I'll represent to you
8 that this is a copy from the Wayback Machine showing
3 first use of your website.

10 A Yeah,

11 .) It looks like that was on or about April

12 26th, 2010. Is that an accurate date to say when you
13 started using the website?

14 A Yeah, I would imagine so; if that's what the
15 Wayback Machine says, I'm sure that's pretty accurate.

e May 20, 2012 —creation date of Applicant’s YouTube page;47

47 Td. at 62.

-17-

Opposition No. 91287399
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• May 31, 2020 – creation date of Applicant’s Instagram page;48
• April 14, 2023 – official formation date of Applicant Invictus Fitness LLC
in Texas;49
• April 26, 2023 – dated website specimen from application file.50
In sum, although Ms. Renna consistently claimed that Applicant began offering
fitness services under the INVICTUS FITNESS mark in June 2008, there is little
else about her testimony of her earliest use that is accurate or definite. Applicant has
not established by competent evidence that it was using the INVICTUS FITNESS
mark for fitness services by June 2008, a date more than 17 years before Ms. Renna’s
trial testimony. As Ms. Renna is the sole principal of Applicant and has overseen all
aspects of its business since its inception,51 looking at the evidence as a whole, it
strains credulity that no piece of physical evidence or digital communication bearing
Applicant’s mark can be found to corroborate Applicant’s claimed use of its mark in
2008 or 2009, much less its claimed first use in June 2008. See W. Fla. Seafood, Inc.
v. Jet Rests., Inc., 31 F.3d 1122, 1125-26 (1994) (“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.”). We find it far more likely that Applicant began using an
INVICTUS FITNESS mark around the time it launched its Facebook page, on March
48 Id. at 63.
49 Id. at 21, 91 (Exhibit 2).
50 April 26, 2023 application, at 8-17.
51 23 TTABVUE 2, ¶¶3,6.

Opposition No. 91287399
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28, 2010, which is the first definite, documented use date in the record for Applicant’s
mark for the identified services.
Next, we turn to Opposer, to determine its earliest first use date.
B. Opposer’s First Use
Opposer’s predecessor in interest Elite Fitness Coaching LLC was formed in July
2008 “with the goal of providing premier fitness and exercise training services.”52
Opposer formally converted its entity type and changed its name from Elite Fitness
Coaching LLC to Invictus Fitness, Inc. on April 6, 2011,53 but Opposer asserts that it
began using its INVICTUS FITNESS and INVICTUS marks before then. Therefore,
we begin with Opposer’s own use-based trademark applications for its alleged marks
INVICTUS and INVICTUS FITNESS,54 because “[w]hen a party claims a date earlier
than the date it alleged when it filed its application, that is considered a change in
position, contrary to the admission it made against interest at the time it filed the
application; in these circumstances, its proof of the earlier date must be clear and
convincing.” JNF, 2022 TTAB LEXIS 328, at *13 (citing Hydro-Dynamics, Inc. v.
George Putnam & Co., 811 F.2d 1470, 1473 (Fed. Cir. 1987)). “This enhanced burden
of proof can apply to either party in an inter partes proceeding, plaintiff or defendant.”
Id.
52 Martin Declaration, 21 TTABVUE 3, ¶13.
53 Id. at 3, ¶13; 17.
54 Id. at 109 (Exhibit AC), 113 (Exhibit AD).

Opposition No. 91287399
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Opposer’s INVICTUS application for fitness-related services, No. 98180597, filed
September 14, 2023, claims a date of first use anywhere and in commerce of February
2009.55 Opposer’s INVICTUS FITNESS application for the same services, No.
98180610, also filed September 14, 2023, claims a date of first use anywhere and in
commerce of March 2010.56
We turn to Opposer’s proofs. On May 11, 2025, Mr. Martin, Opposer’s founder and
President, testified that he “oversee[s] every aspect of the goods and services in
connection with which the INVICTUS and INVICTUS FITNESS marks are used,
including sales, marketing, and advertising.”57 Mr. Martin is a “Level 4 CrossFit
instructor, USA Weightlifting Coach, and former member of the CROSSFIT® HQ
training team.”58 He explained that CrossFit is a third-party “fitness program
centered on training and nutrition”59 that partners with gyms and permits use of its
CROSSFIT mark by affiliates to advertise CROSSFIT services.60 Mr. Martin testified
that “[i]n summer 2008, [Opposer] reached an agreement with the CROSSFIT®
brand to become an affiliate and offer CROSSFIT® style workouts, as well as
55 Id. at 110.
56 Id. at 114. And of course, as we noted with respect to Applicant’s allegations of use in its
application, “[t]he 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.” Trademark Rule 2.122(b)(2).
57 Id. at 3, ¶9. Mr. Martin also confirmed that all the statements in his declaration are based
upon his personal knowledge, id. at 2, ¶3, and that each of the attached exhibits, which he
reviewed, are true and accurate copies of Opposer’s business records. Id. at 3, ¶¶4-5.
58 Id. at ¶10.
59 Id. at ¶15.
60 Id. at 4, ¶19.

Opposition No. 91287399
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advertise those workouts utilizing the CROSSFIT® branding.”61 Mr. Martin
explained that CrossFit-affiliated gyms typically combine a gym or “Team” name with
the term CROSSFIT.62
Opposer selected the term INVICTUS as its CrossFit “Team” name, which led to
several variations in its name, including TEAM INVICTUS, CROSSFIT INVICTUS,
INVICTUS, and INVICTUS FITNESS, as Mr. Martin avers:
63
The earliest, definite claimed date in the record is December 21, 2008, when Mr.
Martin states that Opposer “held an initial sign-up at the San Diego gym location …
for members looking to participate in the INVICTUS CROSSFIT® offerings, which
were advertised by word of mouth and through [Opposer’s] crossfitinvictus.com
website. See Exhibit B.”64 Exhibit B to the Martin Declaration is a screenshot from
the Internet Archive’s Wayback Machine showing the crossfitinvictus.com website as
61 Id. 3, ¶14.
62 Id. at 4, ¶¶19-20.
63 Id. at 4, ¶¶22-23.
64 Id. at 5, ¶24.

Opposition No. 91287399
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it was captured on January 18, 2009 (arrows added, and the portion indicated at the
second arrow is shown enlarged below):65
66
65 Id. at 18-19.
66 Applicant objects to this documentary evidence rather than Opposer’s testimony, stating,
“the Wayback Machine evidence submitted by Opposer cannot be used to establish the truth
of the matters contained in such content,” 26 TTABVUE 8, citing Coca-Cola v. Meenaxi and
Spiritline v. Tour Mgm. Neither case supports Applicant’s position. Meenaxi was reversed by
the Federal Circuit. Meenaxi Enter. v. Coca-Cola Co., 38 F.4th 1067 (Fed. Cir. 2022). In
Spiritline, 2020 TTAB LEXIS 3, at *10-11, the Board stated that “the Wayback Machine

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Mr. Martin testified that since that date, Opposer continued to use an INVICTUS
mark in connection with its growing fitness business, such as shown in a January
2009 photograph of the exterior of Opposer’s CROSSFIT INVICTUS gym in San
Diego:
67
As suggested by this initial blending of the two marks – the third-party mark
CROSSFITFIT® and Opposer’s INVICTUS mark – Mr. Martin testified that
“[c]lients, staff, athletes, business partners, and media outlets” refer to Opposer as,
variously, INVICTUS, Team INVICTUS, and CROSSFIT® INVICTUS.68
printouts were properly authenticated and accompanied by witness testimony laying the
appropriate foundation for the evidence.” Here, Mr. Martin testified that “[e]ach of the
attached exhibits are true and accurate copies of business records kept by Invictus Fitness
Inc. in the course of a regularly conducted activity of the business,” 21 TTABVUE 2, ¶5, and
described both the crossfitinvictus.com website and the specific posting, id. at 4, ¶17 and 5,
¶24, of which an archival version appears on the Wayback Machine. Id. at 19. We find that
the Wayback Machine printout was properly authenticated and accompanied by witness
testimony laying the appropriate foundation for introduction of the evidence. To the extent
that Applicant objects to Opposer’s use of this evidence to corroborate Mr. Martin’s testimony,
Applicant’s objection is overruled.
67 Martin Declaration, 21 TTABVUE 5, ¶25.
68 Id. at 4, ¶23.

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By 2009, Opposer began to use INVICTUS and INVICTUS FITNESS apart from
the CROSSFIT® mark more often, with Mr. Martin explaining that “[i]n July of 2009,
[Opposer] purchased the domain name www.invictusfitness.com, which redirected to
[its] crossfitinvitcus.com website” and “[i]n June 2009, [Opposer] began to
consistently and solely use INVICTUS and INVICTUS FITNESS to brand all goods
and services that were not CROSSFIT®-related.”69 Mr. Martin pointed to supporting
documentary evidence, such as photographs of Opposer’s two Boston gym locations
(opened in February 2018) that display INVICTUS signage on the interior and
exterior:70
69 Id. at 10, ¶¶37-38.
70 Id. at 13, ¶50.

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71
and its Seattle location (opened in March 2024) that displays INVICTUS FITNESS
signage on the interior:72
71 Id. at 13, ¶50.
72 Id. at 13, ¶51.

Opposition No. 91287399
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73
Applicant asserts that Opposer has provided conflicting first use dates, comparing
the first use dates in Opposer’s pending, use-based trademark applications with those
in Mr. Martin’s testimony.74 Mr. Martin testified to the filing of Opposer’s INVICTUS
and INVICTUS FITNESS applications, but not to the dates of use therein.75 Because
Opposer’s applications are of record, we acknowledge that the INVICTUS application
claims a first use date of February 2009 while the INVICTUS FITNESS application
claims a first use date of March 2010.76 The type of use needed to establish priority,
see, e.g. Herbko, 308 F.3d at 1162, is different from the type of technical trademark
use required to support registration, and, as discussed previously, a party can prove
a date of first use earlier than the one claimed in its application by clear and
convincing evidence.
73 Id. at 101 (Exhibit Z) (image cropped).
74 26 TTABVUE 4.
75 21 TTABVUE 14-15, ¶¶56-57.
76 Id. at 109-16.

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As suggested by our initial citation of the JNF decision,77 we agree with
Applicant’s argument that Opposer’s proofs here must be clear and convincing,
because it is alleging dates even earlier than those alleged in its trademark
applications. We also note Applicant’s general point regarding Opposer’s initial use
of INVICTUS with the third-party CROSSFIT® mark. This is a red herring, however,
because the use of the CROSSFIT® mark together with the INVICTUS mark does
not affect Opposer’s priority claim. Fitness enthusiasts familiar with CrossFit
programs would have understood the “CROSSFIT®-affiliate naming conventions”
Mr. Martin described, through which each gym is referred to as Team [NAME].78 As
Opposer started as a CrossFit affiliate,79 its customers would have been people using
and familiar with CROSSFIT® workouts and branding, as well as the Team naming
conventions. We find that those customers seeking CROSSFIT® workouts would
have understood that they were purchasing CROSSFIT® workouts coached and
provided by Team Invictus, or at Invictus Gym, etc., especially when the gym was
branded like this:
77 See our discussion supra.
78 21 TTABVUE 4, ¶¶19-20.
79 Id. at 3, ¶¶13-14.

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80
Moreover, as Mr. Martin testified, within a few months – by June 2009 – Opposer
“began to consistently and solely use INVICTUS and INVICTUS FITNESS to brand
all goods and services that were not CROSSFIT®-related.”81
On the whole, we find Mr. Martin’s testimony reliable and supported by
documentary evidence, as discussed above. Exec. Coach Builders, Inc. v. SPV Coach
Co., Inc., No. 91212312, 2017 TTAB LEXIS 201, at *36 (“Oral testimony is
strengthened by corroborative documentary evidence”). We agree with Applicant that
Mr. Martin’s testimony regarding the earliest claimed date in the record – the
December 21, 2008 initial sign-up at the San Diego gym location82 – does not indicate
whether any people signed up for Opposer’s CROSSFIT® INVICTUS training
services and if services were rendered.83 Consequently, we focus on the following: Mr.
80 Id. at 5.
81 Id. at 10, ¶38.
82 Id. at 5, ¶24.
83 26 TTABVUE 7.

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Martin testified, without contradiction, that “[o]n January 1, 2009, the INVICTUS
San Diego Gym hosted a ‘soft opening’ wherein potential clients and athletes were
invited and participated in a free ‘Workout of the Day.’”84 We find that Opposer has
established, by clear and convincing evidence, prior use sufficient to establish
proprietary rights in its INVICTUS mark in connection with in-person fitness
training, at least as early as January 1, 2009. See Herbko, 308 F.3d at 1162.
C. Summary
We find that Opposer has established, by clear and convincing evidence, prior
rights in its INVICTUS and INVICTUS FITNESS marks for fitness services dating
to January 1, 2009. Opposer proved its entitlement to oppose, and because there is
no dispute as to the likelihood of confusion, Opposer proved its Section 2(d) claim.
Decision: The opposition to registration of Applicant’s INVICTUS FITNESS
mark in application Ser. No. 97909386 based on Trademark Act Section 2(d) is
sustained.
84 21 TTABVUE 5, ¶26. Again, this would have been the CROSSFIT® INVICTUS mark, and
we reference our discussion of the understanding of the relevant consumers.