91284472•Thomas Fauntleroy v. Khalil Bilal and Shirley Bilal
Testo completo
THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: February 18, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Thomas Fauntleroy v. Khalil Bilal and Shirley Bilal _____ Opposition No. 91284472 _____ Thomas Fauntleroy, pro se. Khalil Bilal and Shirley Bilal, pro se. _____ Before Lykos, Heasley, and Stanley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Musical groups frequently give rise to trademark disputes. See, e.g., Wonderbread 5 v. Gilles, No. 3691948, 2015 WL 4380986 (TTAB 2015). This case is no exception. This is an opposition proceeding litigated by pro se parties. And it reads that way. Although the parties were advised to seek counsel, they proceeded on their own, creating a tortuous, winding trail of unsupported claims, inadmissible evidence, and irrelevant arguments.
Opposition No. 91284472 - 2 - Applicant Khalil Bilal is a former member of the musical group “THE UNIFICS.” He and Applicant Shirley Bilal have filed an intent-to-use Application seeking registration on the Principal Register of the mark THE UNIFICS (in standard characters) for “entertainment services in the nature of live vocal performances by a musically vocal group,” in International Class 41.1 Opposer, Thomas Fauntleroy, a founding member of the musical group, opposes registration, primarily on the grounds that he is the common law owner of the mark THE UNIFICS for musical entertainment, and that registration of Applicant’s mark is likely to cause confusion with his common law mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). The foregoing is a distillation and clarification of the issues. The pleadings and proof are far muddier. I. The Pleadings Opposer’s original “Notice of Opposition” consisted of a photocopy of a one-page CERTIFICATE OF ASSUMED OR FICTITIOUS NAME by which Garrett L. Hall, not Opposer Fauntleroy, purported to adopt THE UNIFICS as the assumed or fictitious name of his business in Newport News, Virginia.2 The ESTTA cover sheet helpfully explained the grounds for opposition: Priority and likelihood of confusion; nonuse of the mark in commerce; failure to function as a mark; and Applicant[s] not 1 Application Serial No. 97391501 was filed on May 2, 2022 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicants’ allegation of a bona fide intention to use the mark in commerce. 2 1 TTABVUE 3.
Opposition No. 91284472 - 3 - the rightful owners of the mark for the identified services.3 Applicants, in their Answer, essentially denied these salient grounds for opposition.4 A Board Interlocutory Attorney held a discovery conference with the parties and issued an Order stating in pertinent part: “The parties, who are each currently appearing pro se, were advised that they have the option to retain counsel at any time. The parties were also advised that, due to the nature of the proceedings, legal counsel was strongly advised.”5 The parties did not heed this sage advice, and assumed the risk of representing themselves. As the Board has made clear, “because the governing practices and procedures in proceedings before the Board are quite technical and highly specialized, it is strongly recommended that an attorney knowledgeable about trademark law represent a party.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 114.01 (2025). “Strict compliance with the Trademark Rules of Practice, and where applicable the Federal Rules of Civil Procedure and the Federal Rules of Evidence, is required of all parties, whether or not they are represented by counsel. … Accordingly, [the parties,] layperson[s] unfamiliar with the Trademark Rules of Practice, ha[ve] assumed the responsibility and risk of representing [themselves].” Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, *1 (TTAB 2020). 3 1 TTABVUE 1-2. Citations to the briefs and other materials in the record refer to the Board’s TTABVUE online docket system. 4 4 TTABVUE 2. 5 Board Order, 5 TTABVUE 2.
Opposition No. 91284472 - 4 - Opposer filed an Amended Notice of Opposition, in which he averred in a preamble that: I oppose the application to register the mark, “the Unifics”, in whole, because I believe that I am the rightful owner of the mark. I feel that I would be damaged by applicant’s registration of this mark. Because the likelihood of confusion would be great, I believe that my business relations would be jeopardized. I have a real interest in the mark. I am currently using the mark in commerce, and I have done so, legally, for the past 19 years. I shared membership with the joint applicant, Khalil Bilal, in the singing group, “the Unifics”, from 1967 to 1972, when the group disbanded. The group reassembled in 2004 when Mr. Bilal and I were again co- members in the group. After a short time, Mr. Bilal found it necessary to resign from the group in 2004. Since then, I have maintained consistent use in commerce of said mark from 2004 to the present. There are multiple grounds for my opposition listed below, to include the likelihood of confusion, no use of mark in commerce before application, failure to function as a mark, and applicant is not the rightful owner of the mark.6 The Amended Notice of Opposition then listed each of the four grounds in boldface type, followed by interrogatory-like questions. For example: 1. LIKELIHOOD OF CONFUSION: Please confirm or deny, that at the time of your filing, you and your joint-applicant were aware of another mark, “the Unifics”, used in commerce and identical to the one for which you were applying. 2. In reference to item 1, please confirm or deny your belief that the registration of this mark would cause confusion.7 Despite this irregularity in the pleadings, Applicant Khalil Bilal answered on behalf of the Applicants. In pertinent part: Neither Mr. Fauntleroy nor I are owners of the Unifics trademark. The only difference is that I have applied for and paid the appropriate fees and 6 Amended Notice of Opposition, 9 TTABVUE 2. 7 Amended Notice of Opposition, 9 TTABVUE 3.
Opposition No. 91284472 - 5 - Mr. Fauntleroy has not. If he were the legal owner of the trademark, then I would not have applied for the trademark. He says that he has maintained consistent use in commerce of the mark from 2004 to the present, yet he signed over the Unifics name to Garrett Hall [who filed the CERTIFICATE OF ASSUMED OR FICTITIOUS NAME] in 2018…. 1. LIKELIHOOD OF CONFUSION: I confirm that I was aware of another group using the name Unifics in commerce at the time of my filing, and that there were no original members of the original Unifics performing on stage. This constituted a violation of Virginia’s State Legislation (the Truth in Music Advertising Act) which states that there must be at least one original member performing in order to use the name of a previously established group (the Unifics). 2. I deny and disagree with this statement because the registration of this trademark would not cause confusion. This trademark will be advertised as the original Unifics including an original member in the line-up under the official trademark lable [sic], thus removing any doubts and/or confusions.8 The parties have fully briefed the case.9 II. Applicable Law A. Sufficiency of the Pleadings The Amended Notice of Opposition, liberally construed, states a claim under Section 2(d) of the Trademark Act for prior ownership of a mark that is confusingly similar to Applicants’ applied-for mark. 15 U.S.C. § 1052(d). Judging from the Answer, Applicants labor under the misapprehension that a mark must be registered with the USPTO to be valid and enforceable. Actually, “[s]ection 2(d) challenges may be based either on ownership of a registered mark (which is not implicated here) or prior use of an identical or similar mark.” Wonderbread 5, 2015 WL 4380986, at *7 n. 8 Answer to Amended Notice of Opposition, 10 TTABVUE 2-3. 9 Opposer filed his initial brief at 30 TTABVUE and then one day later filed an “amended” trial brief at 31 TTABVUE. We accept the amended brief as Opposer’s operative brief.
Opposition No. 91284472 - 6 - 8. “Under the Lanham Act, a party may file an opposition on the basis of ‘a mark or trade name previously used in the United States by another and not abandoned.’ 15 U.S.C. § 1052(d).” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1360- 61 (Fed. Cir. 2022). See also Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 975 (Fed. Cir. 1993) (“Trademark ownership results only from use, not from registration.”). The Amended Notice of Opposition fails to state a claim as to Opposer’s nonuse claim. Because the Application is based on intent-to-use under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), Applicants need not show ownership or use of the mark prior to its filing. Norris v. PAVE: Promoting Awareness, Victim Empowerment, No. 91234909, 2019 WL 4785638, *5 (TTAB 2019) (“a claim that an applicant is not the rightful ‘owner’ of the applied-for mark is not available when the application is not based on use of the mark in commerce. That is, the statutory basis for a non-use claim is under Section 1(a) and, as such, the claim lies solely for a use- based application.”), cited in Hole In 1 Drinks, 2020 WL 859853, at *6-7. We therefore sua sponte strike this claim as legally futile. Opposer did not pursue his “failure to function” ground for opposition in his briefing, and it is accordingly waived or forfeited. In re Princeton Equity Grp., LLC, No. 97397212, 2025 WL 1638891, *2 n. 15 (TTAB 2025). This opposition thus boils down to a claim of prior common law rights in and ownership of a mark that is confusingly similar to the applied-for mark. The likelihood of confusion is a given in this case. “With regard to the Section 2(d) claim, when the parties are claiming rights in the same mark for the same goods or services, likelihood of confusion is inevitable.” Wonderbread 5, 2015 WL 4380986, at *7.
Opposition No. 91284472 - 7 - It is Opposer’s burden to prove entitlement to maintain this opposition proceeding and his prior common law use and ownership of the THE UNIFICS mark. “It is well established that, in opposition proceedings, the burden of proof rests on the opposer. See Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 973 (Fed. Cir. 2018).” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1365 (Fed. Cir. 2023). As plaintiff, Opposer bears the burden of proving its entitlement to a statutory cause of action and its Section 2(d) claim by a preponderance of the evidence. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015) (“The party opposing registration bears the burden of proof, see [Trademark Rule 2.116(b), 37 C.F.R.] §2.116(b), and if that burden cannot be met, the opposed mark must be registered, see 15 U.S.C. §1063(b)”). DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL 4449409, *1 (TTAB 2024). “Opposer must prove by a preponderance of the evidence that its common law rights in the … mark were acquired before any date upon which Applicant may rely.” Id. at *11. In this case, the earliest date on which Applicants may rely is their May 2, 2022 filing date. Syngenta Crop Prot. Inc. v. Bio-Chek LLC, No. 91175091, 2009 WL 691309, *5 (TTAB 2009) (“applicant may rely without further proof upon the filing date of its application as a ‘constructive use’ date for purposes of priority.”).10 The key issue here may be clarified by emphasis. It’s not whether there has been prior common law use of the THE UNIFICS mark. It’s whether the named Opposer, 10 Applicants state in their brief, “We deny the Plaintiff’s allegation that we have used the Unifics name in commerce. We have filed an application for permission to use the Unifics Trademark and are waiting for a decision from the TTAB.” Applicants’ brief, 32 TTABVUE 16.
Opposition No. 91284472 - 8 - Thomas Fauntleroy, has proven that he has made prior common law use of the mark in his individual capacity. The evidentiary record, however, is largely inadmissible or unclear on this key issue. B. Entitlement and Prior Proprietary Rights “Entitlement to a statutory cause of action is a requirement that must be proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014)).” Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., No. 92079409, 2024 WL 3739358, *3 (TTAB 2024). To establish entitlement to a statutory cause of action under Trademark Act Section 13, 15 U.S.C., § 1063, a plaintiff must demonstrate “an interest falling within the zone of interests protected by the statute and ... proximate causation.” Corcamore [LLC v SFM,] 978 F.3d [1298,] 1303 (Fed. Cir. 2020)] … see also Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir. 2022). Stated another way, a plaintiff is entitled to bring a statutory cause of action by demonstrating 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, 1374-75 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014). DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL 4449409, *10 (TTAB 2024). “In other words, [Opposer] must establish that its harm is not ‘too remote’ from [Applicants’] alleged unlawful conduct.” Luca McDermott Catena Gift Trust v. Fructuoso-Hobbs SL, 102 F.4th 1314, 1325 (Fed. Cir. 2024). Opposer’s Amended Notice of Opposition states a plausible claim of prior common law proprietary rights in THE UNIFICS for services essentially identical to
Opposition No. 91284472 - 9 - Applicants’. This suffices to show entitlement at the pleading stage. Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1359 (Fed. Cir. 2022) (“Under the Lanham Act, a party may file an opposition on the basis of ‘a mark or trade name previously used in the United States by another and not abandoned.’ 15 U.S.C. § 1052(d)”). However, Opposer, as plaintiff, “must maintain its entitlement to the statutory cause of action throughout the proceeding and affirmatively prove its existence at the time of trial by introducing evidence to support the allegations in its pleading that relate to such entitlement as an element of its case-in-chief.” Philanthropist.com, Inc. v. Gen. Conf. Corp. of Seventh-Day Adventists, No. 92065178, 2021 WL 2472776, *4 (TTAB 2021), aff’d mem., 2022 WL 3147202 (Fed. Cir. 2022). III. Application to The Evidentiary Record in This Case A. The Record [W]e observe at the outset that the record is hardly a model of clarity.” UVeritech v. Amax Lighting, 2015 WL 4380998, *3 (TTAB 2015). The record includes the pleadings and the file of Applicants’ Application, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). Beyond that, it strays into uncharted waters. Under the Board’s November 16, 2023 order, Opposer’s trial period ended on August 14, 2024. (13 TTABVUE). Opposer did not file any testimony or evidence during his trial period, and on October 9, 2024, the Board issued an Order under Trademark Rule 2.132(a), 37 C.F.R. § 2.132(a), requiring Opposer to show cause why the Board should not treat his failure to file testimony or evidence during his assigned
Opposition No. 91284472 - 10 - trial period as a concession of the case. (18 TTABVUE). Opposer requested an extension of time to file his evidence (20 TTABVUE), which the Board construed as a motion to reopen his first trial period under Fed. R. Civ. P. 6(b)(1)(B) and granted the motion as conceded. (23 TTABVUE). Opposer then submitted: • Declarations of Charlie Lockhart, Garrett Hall, Ned Harris, and Bruce Justice, all professional singers, Sandy Chase, promoter of entertainment events, and Velma Myers, proprietor of an establishment venue that has hired The Unifics (26 TTABVUE). • Notice of reliance attaching hotel receipts for the Unifics; Performance Agreements for the Unifics (27 TTABVUE).11 For their part, Applicants submitted: • Notice of Reliance containing Opposer’s responses to requests for admission; a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME” that was attached to the original Notice of Opposition (19 TTABVUE). • Notice of Reliance containing Opposer’s responses to requests for admission; listing the founding members of the Unifics singing group at Howard University (including Opposer Thomas Fauntleroy, Applicant Khalil Bilal, and four others); a transcription of an advertising flyer promoting a March 2, 2024 Unifics event “in which the replacement members are portrayed as the original members”; and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS 11 Opposer’s notice of reliance also lists other documents, but those documents were not attached.
Opposition No. 91284472 - 11 - NAME” that was attached to the original Notice of Opposition (28 TTABVUE).12 B. Evidentiary Issues Most of the parties’ proffered materials, as presented on this record, are not admissible. 1. Opposer’s Testimony Declarations “Opposition proceedings before the TTAB are in many ways ‘similar to a civil action in a federal district court.’” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 143 (2015) (quoting TBMP § 102.03). Testimony must be under oath. Id. at 144. “The testimony of witnesses in inter partes cases may be submitted in the form of an affidavit or a declaration pursuant to [Trademark Rule] § 2.20 and in conformance with the Federal Rules of Evidence, filed during the proffering party’s testimony period ….” Trademark Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1), quoted in WeaponX Performance Products. Ltd. v. Weapon X Motorsports, Inc., 2018 WL 1326374, *3 (TTAB 2018). Opposer’s declarations are not properly verified. Under Trademark Rule 2.20: the language of 28 U.S.C. 1746, or the following declaration language, may be used: 12 Applicants prematurely submitted Opposer’s responses to Requests for Admission (16 TTABVUE 2-4), as well as a Notice of Reliance with Opposer’s responses to Requests for Admission and Applicants’ pretrial disclosures (17 TTABVUE). The Board informed them that these would be given no consideration. Order, 18 TTABVUE 2 n.1. They are, in any event, duplicative of evidence submitted later in the proceeding.
Opposition No. 91284472 - 12 - The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. 37 C.F.R. § 2.20. Alternatively, the language prescribed by 28 U.S.C. § 1746 for declarations executed within the United States is “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746. These provisions have one thing in common: “In either case, a declarant will be subject to United States perjury laws if willful or knowing false statements are made.” M/S R.M. Dhariwal v. Zarda King Ltd. and Global Tech. & Trade Marks Ltd., No. 91231033, 2019 WL 1915763, *2 (TTAB 2019) (quoting In re Dermahose Inc., No. 76585901, 2007 WL 499919, *5 (TTAB 2007) (“the common feature of oaths, sworn statements, unsworn declarations under penalty of perjury, and declarations under Rule 2.20 is that the person making the statement is subjecting himself or herself to criminal penalties for making statements that the person knows are not true.”) (emphasis added)). None of Opposer’s declarations attests to an awareness of the penalty for perjury. (26 TTABVUE). A declaration that does not attest to an awareness of the penalty for perjury is unacceptable. TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 804.01(b) (Nov. 2025). If it is not properly verified under Trademark Rule 2.20, it is not testimony. TV Azteca, S.a.b. De C.v. v. Martin, No. 92068042, 2018 WL 6504575, *4 (TTAB 2018). (quoting McDonald’s Corp. v. McKinley, 1989 WL 274414, *1 n.4
Opposition No. 91284472 - 13 - (TTAB 1989) (“Applicant’s unsworn statement does not constitute testimony in the absence of an oath or affirmation thereof.”)). “Evidence not obtained and filed in compliance with these sections will not be considered.” 37 CFR § 2.123(k); accord TBMP § 706 (“Evidence not obtained and filed in compliance with the rules of practice governing inter partes proceedings before the Board will not be considered by the Board.”). Consequently, because Opposer’s declarations are not properly verified, they do not substantially comply with the requirements for declaration testimony; they are inadmissible, and cannot be considered. 37 C.F.R. §§ 2.20, 2.123(a)(1), cited in M/S R.M. Dhariwal v. Zarda King, 2019 WL 1915763, at *2. 2. Opposer’s Notice of Reliance Opposer’s Notice of Reliance fares no better. “The categories of documents which may be submitted under a notice of reliance are strictly limited. The procedure may be used to introduce only discovery depositions; interrogatory responses, admissions or written disclosures of an adverse party, Trademark Rule 2.120(j) (3) (1); trademark registrations, Trademark Rule 2.122(d); and printed publications or official records, Trademark Rule 2.122(d).” Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 2009 WL 691309, at *3. The materials Opposer submitted, hotel invoices and Unifics performance contracts, do not fall into any of those categories. To render them admissible, Opposer needed to identify and authenticate them through the testimony of a competent witness. Id. He did not do so, and they are not properly in evidence. See Wet Seal Inc. v. FD Management Inc., No. 91157022, 2007 WL 458529, *2 (TTAB 2007); Calypso
Opposition No. 91284472 - 14 - Tech., Inc. v. Calypso Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, *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.”). The same holds true for the documents Opposer listed in his Notice of Reliance, but did not attach. “A notice of reliance is essentially a cover sheet for the materials sought to be introduced.” TBMP § 704.02. A party may make such evidence of record by filing it as exhibits under cover of one or more notices of reliance. See, e.g., RLP Ventures, LLC v. Panini Am., Inc., No. 91268816, 2023 WL 6442609, *7 (TTAB 2023). Again, Opposer did not do so, and the listed materials are not in evidence. 3. Applicants’ Notice of Reliance Applicants, for their part, submitted two documents that may be properly introduced via a Notice of Reliance: Opposer’s admissions to Requests for Admission, and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME,” an official record. (28 TTABVUE 7-9, 24.) Trademark Rules 2.120(k)(3), 2.122(e), 37 C.F.R. § 2.120(k)(3), 2.122(e). Applicants’ remaining submissions are not in evidence. Hiraga v. Arena, No. 92047976, 2009 WL 723334, *3 (TTAB 2009) (“Hence, under the Trademark Rules, these documents, which have not been otherwise authenticated, may not be made of record by notice of reliance alone. Such evidence not obtained and filed in compliance with the Trademark Rules has not been considered.”).
Opposition No. 91284472 - 15 - C. Discussion Again, the key issue in this case is whether the sole named Opposer, Thomas Fauntleroy, has proven that he has made prior common law use of the mark in his individual capacity. The purpose of a service mark is to “to identify and distinguish the services of one person ... from the services of others and to indicate the source of the services.” 15 U.S.C. § 1127.” Lyons v. American College of Veterinary Sports Medicine and Rehabilitation, 859 F.3d 1023, 1027 (Fed. Cir. 2017). “One who opposes registration to an applicant under section 2(d) is attempting to protect his individual rights, as the owner of some means of identifying the source of his goods [or services], by preventing registration of a mark so similar to that which he asserts identifies source that concurrent use of the two is likely to cause confusion and thus foil the function of his means of identification.” Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981) (emphasis added). His claim of entitlement to maintain this opposition proceeding, as well as his claim of prior proprietary rights in the mark, depend on this proof. “Under section 2(d), as utilized in an opposition, confusion, or a likelihood thereof, is not recognized where one claiming to be aggrieved by that confusion does not have a right superior to his opponent’s, or where he has not proved that that which he claims identifies him as the source of goods or services actually does so.” Id. at 1322. Opposer’s briefing does not expressly address entitlement, but it does address the use and ownership of the THE UNIFICS mark. Opposer’s problem is twofold. First, Opposer has no admissible evidence, and therefore did not prove entitlement or
Opposition No. 91284472 - 16 - priority. And second, Opposer’s main and reply briefs pivot between his claim of individual ownership to an alternative claim that the mark was instead used and owned by a corporation he helped establish. He contends that: • “The mark ‘UNIFICS’ has been used continuously and consistently by the Plaintiff in connection with musical performances, recordings, and merchandise for over 21 years.” (Opposer’s main brief, 31 TTABVUE 4.) • “Founding of Modo Entertainment, Inc., a Management Company: Tom Fauntleroy and Al Johnson were the original founding members of the group known as the Unifics. Together, they established Modo Entertainment, Inc., a company which managed, produced, published, and promoted the Unifics.” (Id.). • “Background and Ownership Rights In 2004, because of the departure from the group of two of the original members, Gregory Cook and Khalil Bilal, (the Defendant), the remaining two original members, Al Johnson and Thomas Fauntleroy,(the Plaintiff) established Modo Entertainment, Inc., a Virginia based corporation, to own, produce, publish, promote, and manage the trademark ‘Unifics’ and all of its associated fiduciary responsibilities.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.) • “The untimely death of Al Johnson in 2013 marked a significant turning point for the Plaintiff, after having performed nine years together with his friend and colleague in the group. Because of this loss, Tom Fauntleroy retired from performing on stage and transitioned into the role of full-time CEO of Modo Entertainment, Inc. and continued to uphold the legacy of the Unifics, maintaining the brand and its associated activities.” (Opposer’s main brief, 31 TTABVUE 6.) • “This corporation still functions today, in 2025, to manage the group’s business affairs.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.) • “Velma Myers, a music promoter, stated: ‘I know Thomas Fauntleroy as the manager of the group and have been familiar with his business operations and the goods/services he provides with the Unifics for many years. I can also attest to the fact that Modo Entertainment, Inc. has been actively using the mark in commerce, and their performances have drawn significant crowds.’” (Opposer’s reply brief, 33 TTABVUE 8.)
Opposition No. 91284472 - 17 - We reiterate that Opposer’s proffered declarations are not in evidence. We note, however, that he misquotes Ms. Meyers’s declaration, which contains the first sentence, but not the second, boldfaced sentence. (Meyers decl. ¶3, 26 TTABVUE 15.) Opposer further states: • “Performance Contracts: Exhibits contain Performance Agreements and contracts bearing the name ‘Modo Entertainment, Inc. for The Unifics’ with venues that demonstrate the Plaintiff's engagements under the mark, The ‘Unifics’.” (Opposer’s reply brief, 33 TTABVUE 9.) The Performance Agreements were improperly attached to Opposer’s Notice of Reliance, and not authenticated and introduced via testimony from a witness based on personal knowledge. See Trademark Rule 2.122(e)(1) (specifying types of printed publications and official records that may be introduced via notice of reliance). Even if we were to consider this proffered evidence, the Performance Agreements pertain to individual performances by the group, not trademark ownership. And Opposer did not sign any of the agreements in his individual capacity; he signed them on behalf of Modo Entertainment, Inc. For example: * *
Opposition No. 91284472 - 18 - 13 13 Opposer’s Notice of Reliance, exs. 3 and 4, 27 TTABVUE 13, 15.
Opposition No. 91284472 - 19 - 14 14 Id., ex. 5, 27 TTABVUE 17.
Opposition No. 91284472 - 20 - Thus, Opposer’s proffered Performance Agreements, combined with the abrupt pivot in his briefing, serve only to undermine his claim to be the sole owner and source of musical entertainment services provided under the mark. Opposer’s inconsistent position is further compounded by his responses to Applicants’ discovery requests. Applicants properly placed Opposer’s response to request for admission No. 2 in evidence:
Opposition No. 91284472 - 21 - Applicants make much of Opposer’s assignment of a percentage of ownership of the mark to Garrett Hall, variously arguing that either: (i) “Mr. Garrett Hall now shares a percentage of the business ownership of the Unifics name between himself and the Plaintiff. … Now they’re operating as a partnership and not as a sole-proprietorship, as stated in the signed Certificate of Assumed or Fictitious Name (2018).” (Applicants’ brief, 32 TTABVUE 10.) (ii) Alternatively, “[t]he signed, attached certificate states that Garrett Hall is the sole-proprietor (owner) of ‘The Unifics’ name. … This document nullifies the Plaintiff's claim of individual or shared ownership of ‘The Unifics’ trademark.” (Applicants’ brief, 32 TTABVUE 19; certificate at 28 TTABVUE 24.) We do not find the Certificate of Assumed or Fictitious Name to be dispositive of the issue of ownership of the THE UNIFICS mark. As a noted commentator has observed, “the fact that [a person] merely filed a fictitious name registration with a county or state clerk is entitled to little, if any, weight in litigation over the corporate or fictitious name. It certainly cannot provide a defense against a proven senior user.” 1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:9 (5th ed. Dec. 2025). Cf. Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 640 n.7 (D.C. Cir. 1982) (Pennsylvania corporation) (“But this circuit, following the general rule, has declined to accord any weight to a state agency's general acceptance of a corporate name.”), cited in 1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:8. This muddled evidentiary record, however, further undermines Opposer’s claim of service mark rights in his individual capacity.
Opposition No. 91284472 - 22 - D. Conclusions on Proof of Prior Proprietary Common Law Rights and Entitlement In his Amended Notice of Opposition, Opposer stated, “I oppose the application to register the mark, ‘the Unifics’, in whole, because I believe that I am the rightful owner of the mark. I feel that I would be damaged by applicant’s registration of this mark.”15 As our primary reviewing Court has made clear, “[h]owever, our precedents suggest something more -- that the ‘belief of damage’ required by Section 13 of the Lanham Act is more than a subjective belief. … The belief must have a ‘reasonable basis in fact.’” Ritchie v. Simpson, 170 F.3d 1092, 1098 (Fed. Cir.1999). As noted, Opposer was required to not only plead, but prove his entitlement at trial. “Broad general statements by a witness that lack sufficient detail are usually not adequate, especially in the absence of corroborating documentary evidence.” Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL 16646840, *10 (TTAB 2022). See also Tao Licensing LLC v. Bender Consulting Ltd., No. 92057132, 2017 WL 6336243, *9 (TTAB 2017) (the presence of corroborating business documentation would strengthen a party’s testimony, “and the absence of such records does the opposite.”). As noted, it is Opposer’s burden to prove prior common law rights in his claimed mark as a crucial element of his Section 2(d) claim. Ultimately, however, this evidentiary record falls far short of carrying Opposer’s burden of proof. If anything, it raises more questions than it answers about Opposer’s claimed ownership of the THE UNIFICS mark. Opposer never introduces the “Group 15 Amended Notice of Opposition, 9 TTABVUE 2.
Opposition No. 91284472 - 23 - Agreement” to which he alludes; never introduces corporate documents relating to Modo Entertainment, Inc.; and never introduces documentation of the assignment to Garrett Hall. We are left to guess whether, when, or by what means he (i) acquired a proprietary interest in the THE UNIFICS mark, (ii) assigned it to Modo Entertainment, Inc., and/or (iii) assigned an unspecified percentage interest in the mark to Garrett Hall. Given this dearth of record evidence, we reach the same conclusion as in Shenzhen: “In view of the vagueness and non-specific witness testimony, and the lack of any corroborating documentary evidence, we find there is insufficient evidence to support common law prior use....” Shenzhen, 2022 WL 16646840, at *11. Without proof of prior common law ownership, Opposer cannot show entitlement or prevail on his Section 2(d) claim. Syngenta, 2009 WL 691309, at *6. IV. Decision The opposition to registration of the mark in Application Serial No. 97391501 is dismissed.
OCR transcription for search; preserved printed pages are authoritative
THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: February 18, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board Thomas Fauntleroy V. Khalil Bilal and Shirley Bilal Opposition No. 91284472 Thomas Fauntleroy, pro se. Khalil Bilal and Shirley Bilal, pro se. Before Lykos, Heasley, and Stanley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Musical groups frequently give rise to trademark disputes. See, e.g., Wonderbread 5 v. Gilles, No. 3691948, 2015 WL 4880986 (TTAB 2015). This case is no exception. This is an opposition proceeding litigated by pro se parties. And it reads that way. Although the parties were advised to seek counsel, they proceeded on their own, creating a tortuous, winding trail of unsupported claims, inadmissible evidence, and irrelevant arguments. Opposition No. 91284472 - 2 - Applicant Khalil Bilal is a former member of the musical group “THE UNIFICS.” He and Applicant Shirley Bilal have filed an intent-to-use Application seeking registration on the Principal Register of the mark THE UNIFICS (in standard characters) for “entertainment services in the nature of live vocal performances by a musically vocal group,” in International Class 41.1 Opposer, Thomas Fauntleroy, a founding member of the musical group, opposes registration, primarily on the grounds that he is the common law owner of the mark THE UNIFICS for musical entertainment, and that registration of Applicant’s mark is likely to cause confusion with his common law mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). The foregoing is a distillation and clarification of the issues. The pleadings and proof are far muddier. I. The Pleadings Opposer’s original “Notice of Opposition” consisted of a photocopy of a one-page CERTIFICATE OF ASSUMED OR FICTITIOUS NAME by which Garrett L. Hall, not Opposer Fauntleroy, purported to adopt THE UNIFICS as the assumed or fictitious name of his business in Newport News, Virginia.2 The ESTTA cover sheet helpfully explained the grounds for opposition: Priority and likelihood of confusion; nonuse of the mark in commerce; failure to function as a mark; and Applicant[s] not 1 Application Serial No. 97391501 was filed on May 2, 2022 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicants’ allegation of a bona fide intention to use the mark in commerce. 2 1 TTABVUE 3. Opposition No. 91284472 - 3 - the rightful owners of the mark for the identified services.3 Applicants, in their Answer, essentially denied these salient grounds for opposition.4 A Board Interlocutory Attorney held a discovery conference with the parties and issued an Order stating in pertinent part: “The parties, who are each currently appearing pro se, were advised that they have the option to retain counsel at any time. The parties were also advised that, due to the nature of the proceedings, legal counsel was strongly advised.”5 The parties did not heed this sage advice, and assumed the risk of representing themselves. As the Board has made clear, “because the governing practices and procedures in proceedings before the Board are quite technical and highly specialized, it is strongly recommended that an attorney knowledgeable about trademark law represent a party.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 114.01 (2025). “Strict compliance with the Trademark Rules of Practice, and where applicable the Federal Rules of Civil Procedure and the Federal Rules of Evidence, is required of all parties, whether or not they are represented by counsel. … Accordingly, [the parties,] layperson[s] unfamiliar with the Trademark Rules of Practice, ha[ve] assumed the responsibility and risk of representing [themselves].” Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020 WL 859853, *1 (TTAB 2020). 3 1 TTABVUE 1-2. Citations to the briefs and other materials in the record refer to the Board’s TTABVUE online docket system. 4 4 TTABVUE 2. 5 Board Order, 5 TTABVUE 2. Opposition No. 91284472 - 4 - Opposer filed an Amended Notice of Opposition, in which he averred in a preamble that: I oppose the application to register the mark, “the Unifics”, in whole, because I believe that I am the rightful owner of the mark. I feel that I would be damaged by applicant’s registration of this mark. Because the likelihood of confusion would be great, I believe that my business relations would be jeopardized. I have a real interest in the mark. I am currently using the mark in commerce, and I have done so, legally, for the past 19 years. I shared membership with the joint applicant, Khalil Bilal, in the singing group, “the Unifics”, from 1967 to 1972, when the group disbanded. The group reassembled in 2004 when Mr. Bilal and I were again co- members in the group. After a short time, Mr. Bilal found it necessary to resign from the group in 2004. Since then, I have maintained consistent use in commerce of said mark from 2004 to the present. There are multiple grounds for my opposition listed below, to include the likelihood of confusion, no use of mark in commerce before application, failure to function as a mark, and applicant is not the rightful owner of the mark.6 The Amended Notice of Opposition then listed each of the four grounds in boldface type, followed by interrogatory-like questions. For example: 1. LIKELIHOOD OF CONFUSION: Please confirm or deny, that at the time of your filing, you and your joint-applicant were aware of another mark, “the Unifics”, used in commerce and identical to the one for which you were applying. 2. In reference to item 1, please confirm or deny your belief that the registration of this mark would cause confusion.7 Despite this irregularity in the pleadings, Applicant Khalil Bilal answered on behalf of the Applicants. In pertinent part: Neither Mr. Fauntleroy nor I are owners of the Unifics trademark. The only difference is that I have applied for and paid the appropriate fees and 6 Amended Notice of Opposition, 9 TTABVUE 2. 7 Amended Notice of Opposition, 9 TTABVUE 3. Opposition No. 91284472 - 5 - Mr. Fauntleroy has not. If he were the legal owner of the trademark, then I would not have applied for the trademark. He says that he has maintained consistent use in commerce of the mark from 2004 to the present, yet he signed over the Unifics name to Garrett Hall [who filed the CERTIFICATE OF ASSUMED OR FICTITIOUS NAME] in 2018…. 1. LIKELIHOOD OF CONFUSION: I confirm that I was aware of another group using the name Unifics in commerce at the time of my filing, and that there were no original members of the original Unifics performing on stage. This constituted a violation of Virginia’s State Legislation (the Truth in Music Advertising Act) which states that there must be at least one original member performing in order to use the name of a previously established group (the Unifics). 2. I deny and disagree with this statement because the registration of this trademark would not cause confusion. This trademark will be advertised as the original Unifics including an original member in the line-up under the official trademark lable [sic], thus removing any doubts and/or confusions.8 The parties have fully briefed the case.9 II. Applicable Law A. Sufficiency of the Pleadings The Amended Notice of Opposition, liberally construed, states a claim under Section 2(d) of the Trademark Act for prior ownership of a mark that is confusingly similar to Applicants’ applied-for mark. 15 U.S.C. § 1052(d). Judging from the Answer, Applicants labor under the misapprehension that a mark must be registered with the USPTO to be valid and enforceable. Actually, “[s]ection 2(d) challenges may be based either on ownership of a registered mark (which is not implicated here) or prior use of an identical or similar mark.” Wonderbread 5, 2015 WL 4380986, at *7 n. 8 Answer to Amended Notice of Opposition, 10 TTABVUE 2-3. 9 Opposer filed his initial brief at 30 TTABVUE and then one day later filed an “amended” trial brief at 31 TTABVUE. We accept the amended brief as Opposer’s operative brief. Opposition No. 91284472 - 6 - 8. “Under the Lanham Act, a party may file an opposition on the basis of ‘a mark or trade name previously used in the United States by another and not abandoned.’ 15 U.S.C. § 1052(d).” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1360- 61 (Fed. Cir. 2022). See also Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 975 (Fed. Cir. 1993) (“Trademark ownership results only from use, not from registration.”). The Amended Notice of Opposition fails to state a claim as to Opposer’s nonuse claim. Because the Application is based on intent-to-use under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), Applicants need not show ownership or use of the mark prior to its filing. Norris v. PAVE: Promoting Awareness, Victim Empowerment, No. 91234909, 2019 WL 4785638, *5 (TTAB 2019) (“a claim that an applicant is not the rightful ‘owner’ of the applied-for mark is not available when the application is not based on use of the mark in commerce. That is, the statutory basis for a non-use claim is under Section 1(a) and, as such, the claim lies solely for a use- based application.”), cited in Hole In 1 Drinks, 2020 WL 859853, at *6-7. We therefore sua sponte strike this claim as legally futile. Opposer did not pursue his “failure to function” ground for opposition in his briefing, and it is accordingly waived or forfeited. In re Princeton Equity Grp., LLC, No. 97397212, 2025 WL 1638891, *2 n. 15 (TTAB 2025). This opposition thus boils down to a claim of prior common law rights in and ownership of a mark that is confusingly similar to the applied-for mark. The likelihood of confusion is a given in this case. “With regard to the Section 2(d) claim, when the parties are claiming rights in the same mark for the same goods or services, likelihood of confusion is inevitable.” Wonderbread 5, 2015 WL 4380986, at *7. Opposition No. 91284472 - 7 - It is Opposer’s burden to prove entitlement to maintain this opposition proceeding and his prior common law use and ownership of the THE UNIFICS mark. “It is well established that, in opposition proceedings, the burden of proof rests on the opposer. See Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 973 (Fed. Cir. 2018).” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1365 (Fed. Cir. 2023). As plaintiff, Opposer bears the burden of proving its entitlement to a statutory cause of action and its Section 2(d) claim by a preponderance of the evidence. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144 (2015) (“The party opposing registration bears the burden of proof, see [Trademark Rule 2.116(b), 37 C.F.R.] §2.116(b), and if that burden cannot be met, the opposed mark must be registered, see 15 U.S.C. §1063(b)”). DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL 4449409, *1 (TTAB 2024). “Opposer must prove by a preponderance of the evidence that its common law rights in the … mark were acquired before any date upon which Applicant may rely.” Id. at *11. In this case, the earliest date on which Applicants may rely is their May 2, 2022 filing date. Syngenta Crop Prot. Inc. v. Bio-Chek LLC, No. 91175091, 2009 WL 691309, *5 (TTAB 2009) (“applicant may rely without further proof upon the filing date of its application as a ‘constructive use’ date for purposes of priority.”).10 The key issue here may be clarified by emphasis. It’s not whether there has been prior common law use of the THE UNIFICS mark. It’s whether the named Opposer, 10 Applicants state in their brief, “We deny the Plaintiff’s allegation that we have used the Unifics name in commerce. We have filed an application for permission to use the Unifics Trademark and are waiting for a decision from the TTAB.” Applicants’ brief, 32 TTABVUE 16. Opposition No. 91284472 - 8 - Thomas Fauntleroy, has proven that he has made prior common law use of the mark in his individual capacity. The evidentiary record, however, is largely inadmissible or unclear on this key issue. B. Entitlement and Prior Proprietary Rights “Entitlement to a statutory cause of action is a requirement that must be proven by the plaintiff in every inter partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020) (citing Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014)).” Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., Ltd., No. 92079409, 2024 WL 3739358, *3 (TTAB 2024). To establish entitlement to a statutory cause of action under Trademark Act Section 13, 15 U.S.C., § 1063, a plaintiff must demonstrate “an interest falling within the zone of interests protected by the statute and ... proximate causation.” Corcamore [LLC v SFM,] 978 F.3d [1298,] 1303 (Fed. Cir. 2020)] … see also Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir. 2022). Stated another way, a plaintiff is entitled to bring a statutory cause of action by demonstrating 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, 1374-75 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014). DowntownDC Business Improvement District v. Clarke, No. 91275100, 2024 WL 4449409, *10 (TTAB 2024). “In other words, [Opposer] must establish that its harm is not ‘too remote’ from [Applicants’] alleged unlawful conduct.” Luca McDermott Catena Gift Trust v. Fructuoso-Hobbs SL, 102 F.4th 1314, 1325 (Fed. Cir. 2024). Opposer’s Amended Notice of Opposition states a plausible claim of prior common law proprietary rights in THE UNIFICS for services essentially identical to Opposition No. 91284472 - 9 - Applicants’. This suffices to show entitlement at the pleading stage. Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1359 (Fed. Cir. 2022) (“Under the Lanham Act, a party may file an opposition on the basis of ‘a mark or trade name previously used in the United States by another and not abandoned.’ 15 U.S.C. § 1052(d)”). However, Opposer, as plaintiff, “must maintain its entitlement to the statutory cause of action throughout the proceeding and affirmatively prove its existence at the time of trial by introducing evidence to support the allegations in its pleading that relate to such entitlement as an element of its case-in-chief.” Philanthropist.com, Inc. v. Gen. Conf. Corp. of Seventh-Day Adventists, No. 92065178, 2021 WL 2472776, *4 (TTAB 2021), aff’d mem., 2022 WL 3147202 (Fed. Cir. 2022). III. Application to The Evidentiary Record in This Case A. The Record [W]e observe at the outset that the record is hardly a model of clarity.” UVeritech v. Amax Lighting, 2015 WL 4380998, *3 (TTAB 2015). The record includes the pleadings and the file of Applicants’ Application, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). Beyond that, it strays into uncharted waters. Under the Board’s November 16, 2023 order, Opposer’s trial period ended on August 14, 2024. (13 TTABVUE). Opposer did not file any testimony or evidence during his trial period, and on October 9, 2024, the Board issued an Order under Trademark Rule 2.132(a), 37 C.F.R. § 2.132(a), requiring Opposer to show cause why the Board should not treat his failure to file testimony or evidence during his assigned Opposition No. 91284472 - 10 - trial period as a concession of the case. (18 TTABVUE). Opposer requested an extension of time to file his evidence (20 TTABVUE), which the Board construed as a motion to reopen his first trial period under Fed. R. Civ. P. 6(b)(1)(B) and granted the motion as conceded. (23 TTABVUE). Opposer then submitted: • Declarations of Charlie Lockhart, Garrett Hall, Ned Harris, and Bruce Justice, all professional singers, Sandy Chase, promoter of entertainment events, and Velma Myers, proprietor of an establishment venue that has hired The Unifics (26 TTABVUE). • Notice of reliance attaching hotel receipts for the Unifics; Performance Agreements for the Unifics (27 TTABVUE).11 For their part, Applicants submitted: • Notice of Reliance containing Opposer’s responses to requests for admission; a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME” that was attached to the original Notice of Opposition (19 TTABVUE). • Notice of Reliance containing Opposer’s responses to requests for admission; listing the founding members of the Unifics singing group at Howard University (including Opposer Thomas Fauntleroy, Applicant Khalil Bilal, and four others); a transcription of an advertising flyer promoting a March 2, 2024 Unifics event “in which the replacement members are portrayed as the original members”; and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS 11 Opposer’s notice of reliance also lists other documents, but those documents were not attached. Opposition No. 91284472 - 11 - NAME” that was attached to the original Notice of Opposition (28 TTABVUE).12 B. Evidentiary Issues Most of the parties’ proffered materials, as presented on this record, are not admissible. 1. Opposer’s Testimony Declarations “Opposition proceedings before the TTAB are in many ways ‘similar to a civil action in a federal district court.’” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 143 (2015) (quoting TBMP § 102.03). Testimony must be under oath. Id. at 144. “The testimony of witnesses in inter partes cases may be submitted in the form of an affidavit or a declaration pursuant to [Trademark Rule] § 2.20 and in conformance with the Federal Rules of Evidence, filed during the proffering party’s testimony period ….” Trademark Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1), quoted in WeaponX Performance Products. Ltd. v. Weapon X Motorsports, Inc., 2018 WL 1326374, *3 (TTAB 2018). Opposer’s declarations are not properly verified. Under Trademark Rule 2.20: the language of 28 U.S.C. 1746, or the following declaration language, may be used: 12 Applicants prematurely submitted Opposer’s responses to Requests for Admission (16 TTABVUE 2-4), as well as a Notice of Reliance with Opposer’s responses to Requests for Admission and Applicants’ pretrial disclosures (17 TTABVUE). The Board informed them that these would be given no consideration. Order, 18 TTABVUE 2 n.1. They are, in any event, duplicative of evidence submitted later in the proceeding. Opposition No. 91284472 - 12 - The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. 37 C.F.R. § 2.20. Alternatively, the language prescribed by 28 U.S.C. § 1746 for declarations executed within the United States is “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746. These provisions have one thing in common: “In either case, a declarant will be subject to United States perjury laws if willful or knowing false statements are made.” M/S R.M. Dhariwal v. Zarda King Ltd. and Global Tech. & Trade Marks Ltd., No. 91231033, 2019 WL 1915763, *2 (TTAB 2019) (quoting In re Dermahose Inc., No. 76585901, 2007 WL 499919, *5 (TTAB 2007) (“the common feature of oaths, sworn statements, unsworn declarations under penalty of perjury, and declarations under Rule 2.20 is that the person making the statement is subjecting himself or herself to criminal penalties for making statements that the person knows are not true.”) (emphasis added)). None of Opposer’s declarations attests to an awareness of the penalty for perjury. (26 TTABVUE). A declaration that does not attest to an awareness of the penalty for perjury is unacceptable. TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 804.01(b) (Nov. 2025). If it is not properly verified under Trademark Rule 2.20, it is not testimony. TV Azteca, S.a.b. De C.v. v. Martin, No. 92068042, 2018 WL 6504575, *4 (TTAB 2018). (quoting McDonald’s Corp. v. McKinley, 1989 WL 274414, *1 n.4 Opposition No. 91284472 - 13 - (TTAB 1989) (“Applicant’s unsworn statement does not constitute testimony in the absence of an oath or affirmation thereof.”)). “Evidence not obtained and filed in compliance with these sections will not be considered.” 37 CFR § 2.123(k); accord TBMP § 706 (“Evidence not obtained and filed in compliance with the rules of practice governing inter partes proceedings before the Board will not be considered by the Board.”). Consequently, because Opposer’s declarations are not properly verified, they do not substantially comply with the requirements for declaration testimony; they are inadmissible, and cannot be considered. 37 C.F.R. §§ 2.20, 2.123(a)(1), cited in M/S R.M. Dhariwal v. Zarda King, 2019 WL 1915763, at *2. 2. Opposer’s Notice of Reliance Opposer’s Notice of Reliance fares no better. “The categories of documents which may be submitted under a notice of reliance are strictly limited. The procedure may be used to introduce only discovery depositions; interrogatory responses, admissions or written disclosures of an adverse party, Trademark Rule 2.120(j) (3) (1); trademark registrations, Trademark Rule 2.122(d); and printed publications or official records, Trademark Rule 2.122(d).” Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 2009 WL 691309, at *3. The materials Opposer submitted, hotel invoices and Unifics performance contracts, do not fall into any of those categories. To render them admissible, Opposer needed to identify and authenticate them through the testimony of a competent witness. Id. He did not do so, and they are not properly in evidence. See Wet Seal Inc. v. FD Management Inc., No. 91157022, 2007 WL 458529, *2 (TTAB 2007); Calypso Opposition No. 91284472 - 14 - Tech., Inc. v. Calypso Cap. Mgmt., LP, No. 91184576, 2011 WL 4090446, *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.”). The same holds true for the documents Opposer listed in his Notice of Reliance, but did not attach. “A notice of reliance is essentially a cover sheet for the materials sought to be introduced.” TBMP § 704.02. A party may make such evidence of record by filing it as exhibits under cover of one or more notices of reliance. See, e.g., RLP Ventures, LLC v. Panini Am., Inc., No. 91268816, 2023 WL 6442609, *7 (TTAB 2023). Again, Opposer did not do so, and the listed materials are not in evidence. 3. Applicants’ Notice of Reliance Applicants, for their part, submitted two documents that may be properly introduced via a Notice of Reliance: Opposer’s admissions to Requests for Admission, and a copy of the “CERTIFICATE OF ASSUMED OR FICTITIOUS NAME,” an official record. (28 TTABVUE 7-9, 24.) Trademark Rules 2.120(k)(3), 2.122(e), 37 C.F.R. § 2.120(k)(3), 2.122(e). Applicants’ remaining submissions are not in evidence. Hiraga v. Arena, No. 92047976, 2009 WL 723334, *3 (TTAB 2009) (“Hence, under the Trademark Rules, these documents, which have not been otherwise authenticated, may not be made of record by notice of reliance alone. Such evidence not obtained and filed in compliance with the Trademark Rules has not been considered.”). Opposition No. 91284472 - 15 - C. Discussion Again, the key issue in this case is whether the sole named Opposer, Thomas Fauntleroy, has proven that he has made prior common law use of the mark in his individual capacity. The purpose of a service mark is to “to identify and distinguish the services of one person ... from the services of others and to indicate the source of the services.” 15 U.S.C. § 1127.” Lyons v. American College of Veterinary Sports Medicine and Rehabilitation, 859 F.3d 1023, 1027 (Fed. Cir. 2017). “One who opposes registration to an applicant under section 2(d) is attempting to protect his individual rights, as the owner of some means of identifying the source of his goods [or services], by preventing registration of a mark so similar to that which he asserts identifies source that concurrent use of the two is likely to cause confusion and thus foil the function of his means of identification.” Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981) (emphasis added). His claim of entitlement to maintain this opposition proceeding, as well as his claim of prior proprietary rights in the mark, depend on this proof. “Under section 2(d), as utilized in an opposition, confusion, or a likelihood thereof, is not recognized where one claiming to be aggrieved by that confusion does not have a right superior to his opponent’s, or where he has not proved that that which he claims identifies him as the source of goods or services actually does so.” Id. at 1322. Opposer’s briefing does not expressly address entitlement, but it does address the use and ownership of the THE UNIFICS mark. Opposer’s problem is twofold. First, Opposer has no admissible evidence, and therefore did not prove entitlement or Opposition No. 91284472 - 16 - priority. And second, Opposer’s main and reply briefs pivot between his claim of individual ownership to an alternative claim that the mark was instead used and owned by a corporation he helped establish. He contends that: • “The mark ‘UNIFICS’ has been used continuously and consistently by the Plaintiff in connection with musical performances, recordings, and merchandise for over 21 years.” (Opposer’s main brief, 31 TTABVUE 4.) • “Founding of Modo Entertainment, Inc., a Management Company: Tom Fauntleroy and Al Johnson were the original founding members of the group known as the Unifics. Together, they established Modo Entertainment, Inc., a company which managed, produced, published, and promoted the Unifics.” (Id.). • “Background and Ownership Rights In 2004, because of the departure from the group of two of the original members, Gregory Cook and Khalil Bilal, (the Defendant), the remaining two original members, Al Johnson and Thomas Fauntleroy,(the Plaintiff) established Modo Entertainment, Inc., a Virginia based corporation, to own, produce, publish, promote, and manage the trademark ‘Unifics’ and all of its associated fiduciary responsibilities.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.) • “The untimely death of Al Johnson in 2013 marked a significant turning point for the Plaintiff, after having performed nine years together with his friend and colleague in the group. Because of this loss, Tom Fauntleroy retired from performing on stage and transitioned into the role of full-time CEO of Modo Entertainment, Inc. and continued to uphold the legacy of the Unifics, maintaining the brand and its associated activities.” (Opposer’s main brief, 31 TTABVUE 6.) • “This corporation still functions today, in 2025, to manage the group’s business affairs.” (Opposer’s reply brief, 33 TTABVUE 4; emphasis added.) • “Velma Myers, a music promoter, stated: ‘I know Thomas Fauntleroy as the manager of the group and have been familiar with his business operations and the goods/services he provides with the Unifics for many years. I can also attest to the fact that Modo Entertainment, Inc. has been actively using the mark in commerce, and their performances have drawn significant crowds.’” (Opposer’s reply brief, 33 TTABVUE 8.) Opposition No. 91284472 - 17 - We reiterate that Opposer’s proffered declarations are not in evidence. We note, however, that he misquotes Ms. Meyers’s declaration, which contains the first sentence, but not the second, boldfaced sentence. (Meyers decl. ¶3, 26 TTABVUE 15.) Opposer further states: • “Performance Contracts: Exhibits contain Performance Agreements and contracts bearing the name ‘Modo Entertainment, Inc. for The Unifics’ with venues that demonstrate the Plaintiff's engagements under the mark, The ‘Unifics’.” (Opposer’s reply brief, 33 TTABVUE 9.) The Performance Agreements were improperly attached to Opposer’s Notice of Reliance, and not authenticated and introduced via testimony from a witness based on personal knowledge. See Trademark Rule 2.122(e)(1) (specifying types of printed publications and official records that may be introduced via notice of reliance). Even if we were to consider this proffered evidence, the Performance Agreements pertain to individual performances by the group, not trademark ownership. And Opposer did not sign any of the agreements in his individual capacity; he signed them on behalf of Modo Entertainment, Inc. For example: * * Opposition No. 91284472 BY: Vanessa Jordan Vanessa Jordon The National R&B Music Society, Inc 436 Ebony Tree Avenue Galloway, New Jersey 08205 (609) 339-6767 ARTIST —* Modo Entertai . Inc. For The Unifics == << = Thomas 2 Fat tleroy Modo En ment, Inc. 713 Milford Avenue Hampton, Va. 23661 (757) 722-4729 or (443) 600-0972 18 Opposer’s Notice of Reliance, exs. 3 and 4, 27 TTABVUE 18, 15. - 18 - 13 Opposition No. 91284472 A PERFORMANCE AGREEMENT Agreement made on this 22” day of May, 2012, by and between Willie Bacote aka “Moon Man" for D.R. Productions (Promoter), and Modo Entertainment, Inc., for The Unifics (Artist), for The Unifics to perform at the National Guard Armory, Philadelphia, Pennsylvania, is hereby stated with these conditions: Artist: |The Unifics (Modo Entertainment, Inc.) Address: 713 Milford Avenue Hampton, VA 23661-1141 Phone: (757) 722-4729 Contact: Milton Delaney, Operations Director (443) 600-0972 Promoter: D.R. Productions Address: 1007 Pleasant Valley Drive Catonsville, Maryland Contact: Willie Bacote aka “Moon Man” (443) 857-2771 Venue: National Guard Armory 2700 Southhampton Road Philadelphia, Pennsylvania 19154 (215) 560-4798 Date of Performance: Saturday, June 9”, 2012 Time of Performance: First or Second in the performance line-up Length Performance: 30 to 35 minutes Sound Check Time: TBD (See attached Rider) Performance Fee: Three Thousand Five Hundred Dollars, ($3,500.00) (See attached Rider) Deposit: One Thousand Seven Hundred Fifty Dollars ($1,750.00) (See attached Rider) Sound System: To be provided by Promoter. (See attached Rider) Lighting: Promoter to supply a professional high wattage strobe light, a black light and two spot lights, to be operated by qualified lighting technicians. Transportation: Artist to provide transportation for Artist. (See altached Rider) Band: Promoter to provide a music literate band for Artist. (See attached Rider) Additiona] Items: Promoter to provide housing and local transportation (if required). (See attached Rider) Artist's Signature: Promoters’ Signature: ) 31,06, Beet> Thomas Willie Bacote aka “Moon Man” Modo Entertainment, inc. / The Unifics D. R. Productions Date Signed: 7 JUNE ZO|2Z- ee J— )2 vr M4 Td., ex. 5, 27 TTABVUE 17. -19- Opposition No. 91284472 - 20 - Thus, Opposer’s proffered Performance Agreements, combined with the abrupt pivot in his briefing, serve only to undermine his claim to be the sole owner and source of musical entertainment services provided under the mark. Opposer’s inconsistent position is further compounded by his responses to Applicants’ discovery requests. Applicants properly placed Opposer’s response to request for admission No. 2 in evidence: Opposition No. 91284472 - 21 - Applicants make much of Opposer’s assignment of a percentage of ownership of the mark to Garrett Hall, variously arguing that either: (i) “Mr. Garrett Hall now shares a percentage of the business ownership of the Unifics name between himself and the Plaintiff. … Now they’re operating as a partnership and not as a sole-proprietorship, as stated in the signed Certificate of Assumed or Fictitious Name (2018).” (Applicants’ brief, 32 TTABVUE 10.) (ii) Alternatively, “[t]he signed, attached certificate states that Garrett Hall is the sole-proprietor (owner) of ‘The Unifics’ name. … This document nullifies the Plaintiff's claim of individual or shared ownership of ‘The Unifics’ trademark.” (Applicants’ brief, 32 TTABVUE 19; certificate at 28 TTABVUE 24.) We do not find the Certificate of Assumed or Fictitious Name to be dispositive of the issue of ownership of the THE UNIFICS mark. As a noted commentator has observed, “the fact that [a person] merely filed a fictitious name registration with a county or state clerk is entitled to little, if any, weight in litigation over the corporate or fictitious name. It certainly cannot provide a defense against a proven senior user.” 1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:9 (5th ed. Dec. 2025). Cf. Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 640 n.7 (D.C. Cir. 1982) (Pennsylvania corporation) (“But this circuit, following the general rule, has declined to accord any weight to a state agency's general acceptance of a corporate name.”), cited in 1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 9:8. This muddled evidentiary record, however, further undermines Opposer’s claim of service mark rights in his individual capacity. Opposition No. 91284472 - 22 - D. Conclusions on Proof of Prior Proprietary Common Law Rights and Entitlement In his Amended Notice of Opposition, Opposer stated, “I oppose the application to register the mark, ‘the Unifics’, in whole, because I believe that I am the rightful owner of the mark. I feel that I would be damaged by applicant’s registration of this mark.”15 As our primary reviewing Court has made clear, “[h]owever, our precedents suggest something more -- that the ‘belief of damage’ required by Section 13 of the Lanham Act is more than a subjective belief. … The belief must have a ‘reasonable basis in fact.’” Ritchie v. Simpson, 170 F.3d 1092, 1098 (Fed. Cir.1999). As noted, Opposer was required to not only plead, but prove his entitlement at trial. “Broad general statements by a witness that lack sufficient detail are usually not adequate, especially in the absence of corroborating documentary evidence.” Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 WL 16646840, *10 (TTAB 2022). See also Tao Licensing LLC v. Bender Consulting Ltd., No. 92057132, 2017 WL 6336243, *9 (TTAB 2017) (the presence of corroborating business documentation would strengthen a party’s testimony, “and the absence of such records does the opposite.”). As noted, it is Opposer’s burden to prove prior common law rights in his claimed mark as a crucial element of his Section 2(d) claim. Ultimately, however, this evidentiary record falls far short of carrying Opposer’s burden of proof. If anything, it raises more questions than it answers about Opposer’s claimed ownership of the THE UNIFICS mark. Opposer never introduces the “Group 15 Amended Notice of Opposition, 9 TTABVUE 2. Opposition No. 91284472 - 23 - Agreement” to which he alludes; never introduces corporate documents relating to Modo Entertainment, Inc.; and never introduces documentation of the assignment to Garrett Hall. We are left to guess whether, when, or by what means he (i) acquired a proprietary interest in the THE UNIFICS mark, (ii) assigned it to Modo Entertainment, Inc., and/or (iii) assigned an unspecified percentage interest in the mark to Garrett Hall. Given this dearth of record evidence, we reach the same conclusion as in Shenzhen: “In view of the vagueness and non-specific witness testimony, and the lack of any corroborating documentary evidence, we find there is insufficient evidence to support common law prior use....” Shenzhen, 2022 WL 16646840, at *11. Without proof of prior common law ownership, Opposer cannot show entitlement or prevail on his Section 2(d) claim. Syngenta, 2009 WL 691309, at *6. IV. Decision The opposition to registration of the mark in Application Serial No. 97391501 is dismissed.
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