Matey Michael Ghomeshi v. Strongvolt, Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATEY MICHAEL GHOMESHI,
Appellant
v.
STRONGVOLT, INC.,
Appellee
ANDREW HIRSHFELD, PERFORMING THE
FUNCTIONS AND DUTIES OF THE UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF
THE UNITED STATES PATENT AND TRADEMARK
OFFICE,
Intervenor
______________________
2019-1850
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
92061629.
______________________
Decided: April 12, 2021
______________________
M ATEY M ICHAEL G HOMESHI, Ontario, CA, pro se.
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GHOMESHI v. STRONGVOLT, INC. 2
H OWARD TROY R OMERO , Romero Park P.S., Bellevue,
WA, for appellee.
CHRISTINA J. H IEBER, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
intervenor. Also represented by THOMAS L. CASAGRANDE ,
ERICA JEUNG D ICKEY , THOMAS W. K RAUSE .
______________________
Before PROST, Chief Judge, CHEN and H UGHES , Circuit
Judges.
CHEN , Circuit Judge.
Matey Michael Ghomeshi appeals from a decision of
the Trademark Trial and Appeal Board (Board) cancelling
Registration No. 3,798,681 (’681 registration) for his
MOBILEBLACKBOX composite mark. Because we find no
error in the Board’s determination that Mr. Ghomeshi
failed to show use of the mark in commerce prior to apply-
ing for registration, we affirm.
BACKGROUND
A
In August 2009, Mr. Ghomeshi applied to register the
composite mark shown below based on its use in commerce.
See App’x 34.1 In his application, Mr. Ghomeshi declared
that he had used the mark in commerce with each of the
following types of electronics goods:
1 App’x cites herein refer to the appendix submitted
by Mr. Ghomeshi with his opening brief.
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GHOMESHI v. STRONGVOLT, INC. 3
Audio speakers for computers; portable electronic
devices for recording, organizing, transmitting,
manipulating and reviewing text, data, image and
audio files; audio-video media players for automo-
biles; audio and video recorders; digital video and
event recorders that activate from automotive im-
pact; analog and digital audio signal transmitters;
transmitters for video signals for transmission over
twisted pair cables, in class 9.2
See id. Mr. Ghomeshi’s registration issued on June 8,
2010. See id.
In June 2014, StrongVolt, Inc. (StrongVolt) applied to
register its BLKBOX mark for various electronics goods.
See App’x 44–45. The Patent and Trademark Office re-
fused StrongVolt’s application because it determined that
StrongVolt’s mark was likely to cause confusion with
Mr. Ghomeshi’s. See id.; App’x 38.
On June 5, 2015, StrongVolt filed a petition to cancel
Mr. Ghomeshi’s registration, arguing that the registration
should not have issued because Mr. Ghomeshi did not use
the mark in commerce prior to filing his application. See
App’x 37–39. StrongVolt served Mr. Ghomeshi with the
petition via email on June 5 and mailed a copy to
Mr. Ghomeshi’s listed address that same day. See
App’x 40. After the mailed copy was returned undelivera-
ble, Mr. Ghomeshi received a hand-delivered copy of the
petition on June 25, 2015. See App’x 163.
2 In response to an office action from the Patent and
Trademark Office, Mr. Ghomeshi amended the original
identification of goods to the list above and confirmed its
accuracy.
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GHOMESHI v. STRONGVOLT, INC. 4
Pursuant to 37 C.F.R § 2.133,3 Mr. Ghomeshi moved to
delete most of the goods initially listed in his application.
See App’x 146. Mr. Ghomeshi did, however, continue to as-
sert that he had used the mark in commerce with “audio
speakers for computers” and “analog and digital audio sig-
nal transmitters” prior to filing his application. See id.
StrongVolt consented to Mr. Ghomeshi’s proposed amend-
ment. See App’x 147–48 (noting that its consent “shall not
be interpreted as to conceding on the issue of validity of the
remaining goods listed in connection with the ’681 registra-
tion.”). The Board granted Mr. Ghomeshi’s request on July
29, 2016. See App’x 149–50.
After having timely answered and requested other re-
lief from the Board, Mr. Ghomeshi moved to amend his an-
swer to assert new affirmative defenses, including a claim
that he was not timely served a copy of StrongVolt’s can-
cellation petition within five years of the registration of his
mark.4 See App’x 151–64. The Board denied
3 37 C.F.R § 2.133 permits amendments to registra-
tions subject to cancellation proceedings with consent of
the other party and approval by the Board.
4 The grounds on which a petitioner can challenge
registration are more expansive if the petition is filed
within five years from the date a mark was registered. See
15 U.S.C. § 1064(1); Int’l Mobile Machines Corp. v. Int’l Tel.
& Tel. Corp., 800 F.2d 1118, 1119–20 (Fed. Cir. 1986)
(“Cancellation of a mark’s registration within the initial
five years of registration may be based upon any ground
which could have prevented registration initially.”). After
five years, the registration may only be challenged under
certain enumerated grounds. See, e.g., 15 U.S.C.
§§ 1064(3), (5). StrongVolt’s challenge—failure to use the
mark in commerce prior to applying for registration—is
available only if StrongVolt filed its petition within five
years of registration. Mr. Ghomeshi’s mark was registered
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GHOMESHI v. STRONGVOLT, INC. 5
Mr. Ghomeshi’s motion. As to untimely service, the Board
noted that “[t]he purpose of service in a Board proceeding
is to provide notice of the action.” See App’x 171. Because
Mr. Ghomeshi “d[id] not deny receiving service,” “promptly
responded [to the petition] with his answer,” and did not
argue that he was prejudiced by any alleged service defi-
ciencies, see id., the Board found dismissal on that basis
improper, see App’x 172. The Board also struck the remain-
der of Mr. Ghomeshi’s additional proposed defenses be-
cause they were insufficiently pleaded or were legally and
factually deficient. See App’x 172–74.
B
On November 23, 2018, the Board issued its decision
cancelling Mr. Ghomeshi’s registration. See StrongVolt,
Inc., v. Ghomeshi, No. 9206162, 2018 WL 6179205
(T.T.A.B. Nov. 23, 2018) (Board Opinion). The Board found
StrongVolt was authorized to bring its challenge because
its own trademark application was refused based on
Mr. Ghomeshi’s registered mark. See id. at *7.5 The Board
then analyzed whether Mr. Ghomeshi had used his mark
in connection with audio speakers for computers and ana-
log and digital audio signal transmitters prior to filing his
application.
on June 8, 2010, and, under the five-year time deadline
provided in the statute, StrongVolt timely filed its petition
on June 5, 2015.
5 Both Mr. Ghomeshi and the Board described this
issue as whether StrongVolt had “standing.” See id. To be
clear, the issue in front of the Board was not whether
StrongVolt had Article III standing, but whether it had sat-
isfied the statutory requirements of 15 U.S.C. § 1064 to
pursue a cancellation proceeding. See Corcamore LLC v.
SFM LLC, 978 F.3d 1298, 1304 (Fed. Cir. 2020).
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GHOMESHI v. STRONGVOLT, INC. 6
With respect to audio speakers for computers, the
Board made three key findings. First, the Board deter-
mined that Mr. Ghomeshi’s purported commercial sales of
headphones were irrelevant because headphones are not
audio speakers for computers. See id. at *9. Second, as-
suming headphones are audio speakers for computers, the
Board found no evidence of bona fide sales of such head-
phones because the only receipts proffered by
Mr. Ghomeshi were for “samples.”6 See id. at *9–10. The
Board additionally found that Mr. Ghomeshi failed to pre-
sent sufficient evidence that his mark was used on the
headphones at issue or their packaging. See id. at *11.
And Mr. Ghomeshi’s advertisement, which displayed the
registered mark with headphones, was undated and did
not include a means for ordering headphones. See id.
Without a means to order the product depicted, the Board
determined that the advertisement failed to show use in
commerce. See id. The Board similarly rejected
Mr. Ghomeshi’s argument that archived webpages depict-
ing various websites provided evidence of use and, in light
of the other evidence of record, declined to credit
Mr. Ghomeshi’s declaration that the mark had been in con-
tinuous use with audio speakers for computers. See id.
The Board also determined that Mr. Ghomeshi had not
presented evidence sufficient to show that he used his
mark in connection with analog and digital audio signal
transmitters prior to filing his application for registration.
See id. at *12. The Board first concluded that a series of
undated documents showing some transmitters bearing
the mark and others not bearing the mark lacked probative
value. See id. The Board then found that Mr. Ghomeshi’s
single receipt reflecting a sale of a transmitter, dated in
6 One of these purported sales resulted in the head-
phones being shipped to the address of Mr. Ghomeshi’s as-
sistant. See App’x 23.
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GHOMESHI v. STRONGVOLT, INC. 7
2013, did not evidence pre-filing use in commerce and did
not show that Mr. Ghomeshi used the mark on the trans-
mitters. See id.7
After the Board issued its cancellation decision and its
denial of Mr. Ghomeshi’s request for reconsideration, on
May 7, 2019, StrongVolt filed a form certificate of dissolu-
tion with the State of California. See App’x 46. The docu-
ment contained language indicating StrongVolt “ha[d]
been completely wound up and [wa]s dissolved” and that
“[t]he known assets have been distributed to the persons
entitled thereto or the corporation acquired no known as-
sets.” See id.
Mr. Ghomeshi appeals the cancellation of his mark.
We have jurisdiction under 28 U.S.C. 1295(a)(4)(B).
D ISCUSSION
In addition to contesting the Board’s conclusion that he
did not use his mark in commerce prior to filing for regis-
tration, Mr. Ghomeshi raises several procedural chal-
lenges. We address Mr. Ghomeshi’s procedural arguments
first and then turn to the merits of the Board’s decision.
A
Mr. Ghomeshi’s argues that: (1) as of its dissolution,
StrongVolt did not satisfy the statutory requirements to
contest his registration; (2) the cancellation petition was
7 The Board struck other receipts pre-dating the fil-
ing date as a sanction for Mr. Ghomeshi’s failure to produce
them in discovery. Nonetheless, the Board concluded that
the excluded receipts were insufficient to show use of the
mark because none mentioned the mark and
Mr. Ghomeshi did not verify that any goods related to the
receipts were branded with the composite mark. See id. at
n.60.
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GHOMESHI v. STRONGVOLT, INC. 8
untimely; (3) the Board erred in denying his motion to
amend his answer; (4) StrongVolt is precluded from chal-
lenging the validity of his registration for the remaining
goods by consenting to his proposed amendment to his reg-
istration; and (5) the Board’s decision requires reversal
based on purported fraud committed by StrongVolt during
the cancellation proceeding. We address each argument in
turn.
Mr. Ghomeshi contends that StrongVolt began its dis-
solution process during the trademark cancellation pro-
ceeding, see id. at 17–19, and, because StrongVolt’s
certificate of dissolution said it no longer had any assets, it
“has/had no claims of ownership to any trademark; which
further nullifie[s] [its] pleading and standing within the
[Board] proceeding,” Appellant’s Br. at 21. Thus,
Mr. Ghomeshi argues, “[t]he Board’s final decision . . . was
falsely based on a legally active Plaintiff/Petitioner [and it]
therefore must be reversed.” Id. at 26. We disagree.
“A party that demonstrates a real interest in cancelling
a trademark under § 1064” may file a petition seeking can-
cellation. See Corcamore, 978 F.3d at 1306. We have long
held that rejection of an application to register one’s own
trademark based on a likelihood of confusion with a regis-
tered mark demonstrates a real interest. See Empresa
Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1274
(Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co.,
670 F.2d 1024, 1029 (CCPA 1982).
Here, Mr. Ghomeshi does not contest that the Patent
and Trademark Office rejected StrongVolt’s application to
register its BLKBOX mark based on a likelihood of confu-
sion with Mr. Ghomeshi’s mark. Nor does Mr. Ghomeshi
claim that StrongVolt was not using the BLKBOX mark in
commerce when it applied for registration. Instead, Mr.
Ghomeshi contends that, sometime during the cancellation
proceeding, StrongVolt ceased using BLKBOX in com-
merce and disavowed ownership of the mark based on
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GHOMESHI v. STRONGVOLT, INC. 9
StrongVolt’s certificate of dissolution. In other words, Mr.
Ghomeshi contends StrongVolt’s certificate of dissolution
demonstrates that it no longer had a real commercial in-
terest in the mark during the proceeding.
Without direct evidence that StrongVolt ceased using
the BLKBOX mark in commerce or disavowed ownership
of its mark, topics Mr. Ghomeshi failed to explore in the
cancellation proceeding, we are compelled to reject Mr.
Ghomeshi’s argument which relies solely on the certificate
of dissolution. First, the filing of a certificate of dissolution
does not deprive a corporation of the ability to litigate dis-
putes incidental to its wind up. See Cal Corp. Code § 2010;
A.B. Concrete Coating Inc. v. Wells Fargo Bank, Nat’l Ass’n,
No. 2:20-CV-211-EFB, 2020 WL 5820613, at *3 (E.D. Cal.
Sept. 30, 2020) (“[T]he filing of the certificate of dissolution
[stating that the corporation was completely wound up]
only marked the end of plaintiff's normal business activi-
ties, not the completion of its winding-up process, as de-
fendant contends.”).8 Second, even if StrongVolt’s
certificate of dissolution had the legal effect that
Mr. Ghomeshi asserts, it became effective as of its filing on
May 7, 2019—i.e., well after the Board proceedings had
concluded. See Cal Corp. Code § 1905; App’x 46. Absent
record evidence that StrongVolt was not actively using the
BLKBOX mark during the entirety of the proceeding, or
8 This case is distinguishable from Mongols Nation
Motorcycle Club, Inc. v. City of Lancaster, 145 Cal. Rptr. 3d
122, 126 (Ct. App. 2012), cited by Mr. Ghomeshi. There,
the certificate of dissolution indicated that the company
“never acquired any known assets” nor “incurred any
known debts or liabilities.” Id. Thus, with no business af-
fairs to wind up, the court determined that the appellant’s
participation in the litigation could not be part of its wind-
ing-up process. See id. In contrast, StrongVolt’s certificate
makes no such representations. See App’x 46.
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GHOMESHI v. STRONGVOLT, INC. 10
that it possessed no commercial interest in the mark at any
time before its dissolution, we decline to disturb the
Board’s decision on this basis.
As to Mr. Ghomeshi’s challenges to the timeliness of
service and the Board’s refusal to allow him to amend his
answer, we agree with the logic and reasoning provided by
the Board. We see no error in the Board’s service-related
analysis finding that the notice function of service was
completed, and any defect in service was not prejudicial to
Mr. Ghomeshi. See App’x 170–72. Similarly, the Board’s
denial of Mr. Ghomeshi’s motion to amend was neither le-
gally nor factually flawed. See App’x 172–74.
Mr. Ghomeshi’s contention that StrongVolt’s consent to
his registration amendment deleting several identified
goods barred StrongVolt from challenging his purported
use of the mark with the remaining goods is wholly without
merit. Mr. Ghomeshi cites no authority for his proposition,
which is particularly dubious in light of StrongVolt’s ex-
press statement that its consent “shall not be interpreted
as to conceding on the issue of validity of the remaining
goods listed in connection with the ’681 registration.” See
App’x 147–48.
Lastly, we address Mr. Ghomeshi’s contention that
StrongVolt’s allegedly fraudulent conduct warrants rever-
sal of the Board’s cancellation of his mark. According to
Mr. Ghomeshi, StrongVolt’s misconduct includes filing a
false certificate of service with the petition, falsely repre-
senting that its officers were, indeed, its officers, and filing
a LexisNexis report with inaccurate information. We de-
cline to reverse the Board on this basis because Mr.
Ghomeshi fails to present any credible evidence that any of
these statements or documents are fraudulent or were
made or submitted with deceptive intent. Moreover, Mr.
Ghomeshi does not explain how any of these allegedly false
statements prejudiced him. See Provident Sav. Bank v. Po-
povich, 71 F.3d 696, 700 (7th Cir. 1995) (rejecting pro se
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GHOMESHI v. STRONGVOLT, INC. 11
litigant’s argument for reversal under Rule 60(b)(3) be-
cause he failed to show prejudice from any purported mis-
representations).
B
We likewise find no error in the Board’s determination
that Mr. Ghomeshi failed to show he used his mark in com-
merce with either audio speakers for computers or analog
and digital audio signal transmitters. The Board’s conclu-
sion regarding whether a mark has been used in commerce
is a factual determination reviewed for substantial evi-
dence. Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350,
1360 (Fed. Cir. 2009).
Substantial evidence supports the Board’s conclusion
that Mr. Ghomeshi failed to use his mark in commerce with
audio speakers for computers prior to filing his registra-
tion. Even setting aside the Board’s determination that
headphones are not audio speakers for computers, the
Board’s conclusion that Mr. Ghomeshi’s two receipts for
“sample” headphones did not reflect bona fide sales is well
supported. See Board Decision at *9–10; Smith Int’l, Inc.
v. Olin Corp., 1981 WL 48127, at *10 (T.T.A.B. Jan. 23,
1981) (“[A] shipment of an article or a prototype of an arti-
cle for testing and experimentation is not a public use upon
which trademark rights are created.”). The Board’s finding
that Mr. Ghomeshi’s other proffered evidence—images of
headphones displaying only a word mark (and not the reg-
istered composite mark) and an undated advertisement
without a means to order—failed to show that the mark
was used in commerce on any such headphones is also well
supported. See Board Decision at *11. Moreover, we agree
with the Board that Mr. Ghomeshi’s archived webpages, on
which he purported to sell those headphones, do not illus-
trate or prove that he had been using the registered com-
posite mark before his application for registration on any
particular good, headphones or otherwise. See id. And, in
light of the findings described above, we see no error in the
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GHOMESHI v. STRONGVOLT, INC. 12
Board’s decision not to credit Mr. Ghomeshi’s declaration
that he had continuously used the mark with audio speak-
ers for computers. See id.
Similarly, the Board’s determination that
Mr. Ghomeshi failed to show use of his mark in connection
with analog and digital audio signal transmitters prior to
filing his application for registration is supported by sub-
stantial evidence. See id. at *12. We see no error in the
Board’s conclusion that Mr. Ghomeshi’s undated docu-
ments lack probative value or that a single receipt from
2013 did not evidence use in commerce prior to his filing
for registration in 2009. See id. Likewise, although the
Board acted within its discretion to strike Mr. Ghomeshi’s
other receipts as a discovery sanction, see Corcamore, 978
F.3d at 1307, we see no error in its additional determina-
tion that such receipts, which do not mention the mark,
failed to prove use in commerce. See Board Decision at *12
n.60.
CONCLUSION
We have considered Mr. Ghomeshi’s remaining argu-
ments and find them unpersuasive. For the reasons set
forth above, we affirm the Board’s decision cancelling Reg-
istration No. 3,798,681.
AFFIRMED
COSTS
No costs.
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