92080763•Alma Creamery, LLC v. Rupp AG
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This Opinion Is Not a Precedent of the TTAB Mailed: February 6, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Alma Creamery, LLC v. Rupp AG _____ Cancellation No. 92080763 _____ Jonathan L.A. Phillips and John T.D. Bathke of Phillips & Bathke, P.C., for Alma Creamery, LLC. Donald J. Ersler of Donald J. Ersler, S.C., for Rupp AG. _____ Before Pologeorgis, Thurmon, and Stanley, Administrative Trademark Judges. Opinion by Thurmon, Administrative Trademark Judge: Alma Creamery, LLC (“Petitioner”) seeks cancellation of a registration of the mark ALMA, in standard characters, for “cheese” in International Class 29,1 on the 1 Registration No. 5521772, issued July 24, 2018. The Registration issued from a request for extension of protection filed under Trademark Act Section 66(a), 15 U.S.C. § 1141f(a), of Int’l Reg. No. 0404287. The Registration states, “The English translation of ‘ALMA’ in the mark is ‘SOUL’.”
Cancellation No. 92080763 2 basis of alleged abandonment of the mark under 15 U.S.C. §§ 1064(3), 1064(6), and alleged priority and likelihood of confusion under 15 U.S.C. § 1052(d). The challenged Registration is owned by Rupp AG, an Austrian company, that denied the salient allegations of the petition. The proceeding has been fully briefed and is ready for final decision. For the reasons explained below, we grant the petition to cancel based on Petitioner’s abandonment claim. We do not reach the Section 2(d) claim. See, e.g., Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018 WL 2113778, at *13 & n.52 (TTAB 2018) (“We find by a preponderance of the evidence that the mark in each challenged registration has been abandoned. ... [W]e do not reach the other grounds for cancellation.”) I. The Record The record consists of the pleadings and the prosecution file for the challenged registration. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). In addition, Petitioner submitted testimony and documentary evidence.2 Respondent submitted a Notice of Reliance with documentary evidence, but submitted no testimony.3 The entire record has been considered and relevant evidence is discussed in this opinion, although we do not list its contents. 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 0869805. A Declaration of Use under Trademark Act Section 71, 15 U.S.C. § 1141k, has been accepted. 2 36, 37, 38, 43, 44 TTABVUE. 3 42 TTABVUE.
Cancellation No. 92080763 3 establish that the tribunal did not consider it.’”) (citation and internal quotation marks omitted); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite all of the evidence it considered does not mean the evidence was not, in fact, reviewed.”) (citation omitted). Respondent submitted a number of internal business documents with its Notice of Reliance,4 and Petitioner objected to these documents because they are not public records of the type appropriately submitted with a Notice of Reliance.5 Respondent did not address Petitioner’s objections in its brief. We agree with Petitioner that Respondent’s internal documents are not self-authenticating and are hearsay. The internal business records cannot be made of record by notice of reliance. Accordingly, Petitioner’s objections to the internal business records are sustained, and these records will not be considered. See Calypso Tech., Inc. v. Calypso Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, at *3 (TTAB 2011) (“A party seeking to make evidence of record by notice of reliance must follow the rules and case law; if material cannot be made of record by notice of reliance it will not be considered even if the adverse party does not specifically object to it, as long as the adverse party does not specifically treat it as of record such that we can say it has been stipulated into the record.”). 4 Id. at 66-67, 69, 71, 73-80, 82-83, 85-87, 89, 91-92. 5 45 TTABVUE 31-36 (objecting to Exhibits 2 and 10-17 of Respondent’s Notice of Reliance).
Cancellation No. 92080763 4 II. Entitlement to a Statutory Cause of Action Entitlement to a statutory cause of action must be established in every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26 n.4 (2014)). A party in the position of plaintiff may petition to cancel a registration of a mark when such proceedings are within the zone of interests protected by the statute and the plaintiff has a reasonable belief in damage that is proximately caused by ongoing registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020). “The facts regarding [statutory entitlement], we hold, are part of a petitioner’s case and must be affirmatively proved.” Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1028 (CCPA 1982). Respondent argues that Petitioner’s mark is merely geographically descriptive and has not been used outside the state of Kansas. As a result, Respondent argues, Petitioner has no trademark rights to assert in this proceeding and no entitlement to bring this action.6 Petitioner filed an application to register its mark, which is shown below, and that application was refused based on the challenged Registration.7 6 46 TTABVUE 8. 7 38 TTABVUE 11-15 (Petitioner’s application records); 45 TTABVUE 13 (Petitioner’s brief).
Cancellation No. 92080763 5 8 Petitioner’s application was suspended as a result of this proceeding.9 The fact that Petitioner’s application is effectively blocked by the challenged Registration provides a proper basis for entitlement to a cause of action. See Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, at *4 (TTAB 2020) (evidence that Respondent’s registration cited as a bar to registering Petitioner’s application establishes entitlement); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000). Thus, Petitioner has established its entitlement to a cause of action by a preponderance of the evidence. III. Petitioner’s Abandonment Claim To prevail on its abandonment claim, Petitioner must prove, by a preponderance of the evidence, that Respondent (1) discontinued use of its mark; and (2) had an intent not to resume such use. 15 U.S.C. § 1127; Lewis Silkin LLP v. Firebrand LLC, No. 92067378, 2018 TTAB LEXIS 436, at *11. If Petitioner proves a three-year period with no use, abandonment is presumed and the burden shifts to Respondent to 8 Application Serial No. 97093072. 9 Suspension Letter dated March 6, 2023, in Serial No. 97093072.
Cancellation No. 92080763 6 submit evidence showing that it maintained an intent to resume use during the period of nonuse of the mark.10 15 U.S.C. § 1127. Petitioner submitted testimony from Todd Hansen, its CEO, who testified that he has been involved in the business of making and selling cheese for over twenty years, but has never seen Respondent’s ALMA cheese in the United States.11 Here, Respondent has failed to properly introduce any admissible evidence to establish (1) any use of its ALMA mark in commerce during the three-year period of alleged nonuse, or (2) its intent to resume use.12 In view thereof, we find that Petitioner has established, by a preponderance of the evidence, that Respondent has abandoned its ALMA mark with no intention to resume use of the mark.13 Decision: Petitioner has proven its abandonment claim by a preponderance of the evidence. The Petition to Cancel is granted as to this claim. 10 Petitioner cites to Sections 14(3) and 14(6) as bases for its abandonment claim. We evaluate the claim under Section 14(3), which refers expressly to abandonment, and Section 45, which includes the presumption of abandonment upon proof of a three-year period with no use. 15 U.S.C. §§ 1064(3), 1064(6), 1127. Section 14(6) requires proof that the challenged mark “has never been used in commerce ….” 11 36 TTABVUE 16-17. 12 Respondent does not address intent to resume use in its trial brief. 13 Even if the stricken evidence were self-authenticating such that we could consider the evidence for what the documents show on their face, the evidence falls far short of proving sales of Respondent’s cheese in the United States between July 24, 2018 and July 24, 2021, the three-year period Petitioner focuses on in its abandonment claim. More specifically, the evidence does not prove any shipments to or sales in the United States at any time, the evidence shows no activity of any kind during the three-year period of July 24, 2018 to July 24, 2021, and there is no evidence or argument concerning Respondent’s intent to resume use during the period of nonuse.
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