Neaux Coffee LLC v. NEAU Brands, Inc. (by change of name from Standard Magnetics USA, Inc.)

Mailed: May 21, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
———
Trademark Trial and Appeal Board
———
Neaux Coffee LLC
v.
NEAU Brands, Inc.
(by change of name from Standard Magnetics USA, Inc.)1
______
Opposition No. 91284466
______
Jay Calhoun of The Calhoun Law Firm, PLC, for
Neaux Coffee LLC.
Britt L. Anderson and Matthew Samet of Perkins Coie LLP, for
Neau Brands, Inc.
———
Before Wellington, Allard, and Lavache,
Administrative Trademark Judges.
Opinion by Wellington, Administrative Trademark Judge:
Applicant NEAU Brands, Inc. filed an application seeking registration on the
Principal Register of the mark NEAU COFFEE (with a disclaimer of COFFEE) for
1 On May 29, 2024, Applicant filed a name change (executed on May 20, 2024) from
Standard Magnetics USA, Inc. to NEAU Brands, Inc. with the Assignment Branch of the
United States Patent and Trademark Office (USPTO) (recorded at Reel/Frame Nos.
8445/0440).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Opposition No. 91284466
2
“coffee; coffee beans; ground coffee; coffee in single use filters; coffee capsules, filled;
organic coffee,” in Class 30.2
Opposer Neaux Coffee LLC opposes registration of Applicant’s mark on the ground
of likelihood of confusion under Trademark Act (“the Act”) Section 2(d), 15 U.S.C.
§ 1052(d), based on Opposer’s alleged common law rights in the marks NEAUX and
NEAUX COFFEE COMPANY for “brewing [and] selling coffee” and for “coffee, teas,
blended drinks, and energy drinks” based on its use of the mark “in interstate
commerce since at least as early as August 2020.”3
Applicant’s answer denies all salient allegations in the notice of opposition.4
The parties have fully briefed this proceeding.
I. The Record
The record includes the pleadings and, by rule, Applicant’s involved application
file. See Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).
Opposer did not introduce any evidence during its trial period.
Applicant filed a notice of reliance during its trial period. The notice of reliance
includes copies of screenshots from various websites which Applicant asserts are:5
… relevant to the issue of priority, among other issues, as it demonstrates
2 Application Serial No. 97311713, filed March 14, 2022, claiming a bona fide intention to use
the mark in commerce, under Trademark Act Section 1(b), 15 U.S.C. § 1051(b).
3 Not. of Opp. ¶¶ 1-2, 1 TTABVUE 3. Opposer also pleaded that “Applicant’s mark so closely
resembles Opposer’s mark that it falsely suggests a connection with Opposer within the
meaning of 2(a) of the Trademark Act.” Not. of Opp. ¶ 12, 1 TTABVUE 4. However, Opposer’s
assertion of a false suggestion of a connection was previously stricken from the notice of
opposition by Order of the Board. 9 TTABVUE 5. This same Order granted Opposer time to
replead this claim, but Opposer did not do so.
4 Applicant’s Answer, 10 TTABVUE.
5 42 TTABVUE 2.

Opposition No. 91284466
3
that Opposer has a priority date later than the Applicant’s constructive
first use date of March 14, 2022, Opposer did not use its alleged NEAUX
and NEAUX COFFEE COMPANY marks in commerce in connection with
the sale of goods until after March 14, 2022, and/or Opposer’s only evidence
that it has used its alleged NEAUX and NEAUX COFFEE COMPANY
marks in commerce in connection with the sale of goods post-dates March
14, 2022.
Opposer did not submit any rebuttal evidence, but raised evidentiary objections
to some of Applicant’s notice of reliance materials.6
Finally, we point out that the materials Opposer attached to its Notice of
Opposition (see 1 TTABVUE 6-9) do not form part of the record. Trademark Rule
2.122(c) (“Except [pleaded registrations], an exhibit attached to a pleading is not
evidence on behalf of the party to whose pleading the exhibit is attached, and must
be identified and introduced in evidence as an exhibit during the period for the taking
of testimony.”).7
II. Opposer’s Entitlement to a Statutory Cause of Action
Establishing an entitlement to a statutory cause of action is a threshold
requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d
1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). Thus, Opposer, as plaintiff in this
opposition proceeding, must prove its entitlement to a statutory cause of action by a
6 43 TTABVUE. Opposer maintained its objections to this evidence in its brief “on grounds
including hearsay, lack of authentication, relevance, and self-serving character.” 44
TTABVUE 10. Because we do not rely on any of Applicant’s evidence in favor of Applicant in
reaching our decision, it is unnecessary to address Opposer’s objections.
7 Opposer was informed of this in the Board’s previous Order and was also informed as to
how to make the evidence properly of record (9 TTABVUE 3-4), but Opposer did not do so.

Opposition No. 91284466
4
preponderance of the evidence. See, e.g., Made in Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 TTAB LEXIS 228, at *8.
To establish an entitlement to a statutory cause of action, Opposer must
demonstrate 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 Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 129-134 (2014)); Corcamore, 978 F.3d at 1304-07; see also Made in
Nature, 2022 TTAB LEXIS 228, at *18.
As noted, Opposer did not introduce any evidence. However, Applicant’s notice of
reliance includes materials wherein Applicant asserts their relevance is to show use
of Opposer’s NEAUX and NEAUX COFFEE COMPANY marks in commerce, albeit
use occurring after Applicant’s filing date. In its brief, Applicant further
acknowledges that the evidence it submitted “supports Opposer’s first use around
August 2022.”8
Thus, although Opposer did not submit any evidence to prove its entitlement to
this cause of action, Applicant did. In other words, Applicant’s evidence and its
statements regarding Opposer’s use of its marks establish that Opposer is in the
business of selling coffee under its pleaded marks and is more than a mere interloper.
Opposer is entitled to oppose Applicant’s application. N.Y. Yankees P’ship v. IET
Prods. & Servs., Inc., No. 91189692, 2015 TTAB LEXIS 96, at *8 (“Opposer’s standing
8 45 TTABVUE 7.

Opposition No. 91284466
5
is established with respect to its likelihood of confusion and dilution claims by its . . .
registrations . . . which the record shows to be valid and subsisting, and owned by
Opposer.”) (citing Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir.
2000)); see also Corcamore, 978 F.3d at 1306.
III. Opposer’s Failure to Prove Priority
With regard to Opposer’s assertion of common law rights for the marks NEAUX
and NEAUX COFFEE COMPANY, Opposer must demonstrate it owns “a mark or
trade name previously used in the United States … .” 15 U.S.C. § 1052(d). To
establish such prior common law rights, Opposer “must prove by a preponderance of
the evidence that its mark[] is distinctive, inherently or otherwise, and that [it]
acquired rights in the mark[] prior to any date on which Applicant can rely.” Major
League Baseball Players Ass’n v. Chisena, No. 91240180, 2023 TTAB LEXIS 117, at
*24, aff’d unpub’d, No. 2023-2073, 2026 U.S. APP. LEXIS 395 (Fed. Cir. 2026). See
also RxD Media, LLC v. IP Application Dev. LLC, No. 91207333, 2018 TTAB LEXIS
37, at *23 (“In other words, because unregistered marks are not entitled to the
presumptions established under Sections 7(b)-(c) of the Trademark Act, it is
Opposer’s burden to demonstrate that it owns a trademark that was used prior to
Applicant's first use or constructive use of its mark and not abandoned.”).
It is also well-settled, and important to this proceeding, that an applicant may
rely on the filing date of its application (i.e., the “constructive use” date) for purposes
of priority. See Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c) (an application
constitutes constructive use of the mark conferring a right of priority contingent upon
registration); Rapid Inc. v. Hungry Marketplace, Inc., No. 91236033, 2022 TTAB

Opposition No. 91284466
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LEXIS 260, at *18 (citing, inter alia, Syngenta Crop Prot. Inc. v. Bio-Chek LLC, No.
91175091, 2009 TTAB LEXIS 70, at *18 (“[A]pplicant may rely without further proof
upon the filing date of its application as a ‘constructive use’ date for purposes of
priority.”)).
Opposer, however, makes the argument that Applicant cannot rely Section 7(c)
constructive use provision “without actual use.”9 This is not true. Although Applicant
did not submit any evidence of use prior to the filing of its application, it is also well-
settled that an applicant need not do so in order to rely upon the filing date of its
application as its earliest possible priority date. See, e.g., H.D. Lee Co. v. Maidenform,
Inc., No. 91168309, 2008 TTAB LEXIS 21, at *13-14 (owner of intent-to-use
application may rely on its filing date as constructive use date for purposes of
priority). “[T]here can be no doubt but that the right to rely upon the constructive use
date comes into existence with the filing of the intent-to-use application and that an
intent-to-use applicant can rely upon this date in an opposition brought by a third
party asserting common law rights.” Zirco Corp. v. Am. Tel. and Tel. Co., No.
91084979, 1991 TTAB LEXIS 43, at *8. Of course, such priority rights may expire if
an applicant who files an intent-to-use application never perfects the application by
later filing proof of actual use in commerce.
Put plainly, it was Opposer’s burden to prove by a preponderance of the evidence
that it acquired common law rights in its pleaded marks based on use of those marks
prior to March 14, 2022.
9 44 TTABVUE 7.

Opposition No. 91284466
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Again, Opposer submitted no evidence. As to the Internet materials submitted by
Applicant regarding Opposer’s use of its marks, we have found these are sufficient
for purposes of establishing Opposer’s entitlement to bring its claim. However, these
materials do not and cannot prove use of Opposer’s marks prior to the filing date of
Applicant’s application. We cannot rely on any purported dates within those
materials inasmuch as they are merely screenshots from websites and, without
supporting testimony, any statements made in these materials or the websites are
hearsay and not reliable for their truth. “Internet evidence is only admissible for what
it shows on its face, and because it does not fall within an exception to the hearsay
rule, will not be considered to prove the truth of any matter stated therein.” WeaponX
Performance Prods. v. Weapon X Motorsports, Inc., No. 91221553, 2018 TTAB LEXIS
72, at *23. Indeed, Opposer, objected to Applicant’s evidence on this very basis,
namely, that statements made within the materials constitute hearsay.10
In sum, Opposer has failed to prove prior use of its pleaded marks, a critical
element of its Section 2(d) claim. Opposer thus cannot prevail on the claim of
likelihood of confusion because it has submitted no evidence that it owns “a mark
registered in the Patent and Trademark Office, or a mark or trade name previously
used in the United States.” Trademark Act § 2(d). We need not reach the issue of
whether there is a likelihood of confusion.
Decision: The opposition to registration of Applicant’s NEAU COFFEE mark is
dismissed.
10 See Note 6.