Oliva Cigar Co. v. Jas Sum Kral Inc

kds Mailed: February 18, 2026
Cancellation No. 92087141
Oliva Cigar Co.
v.
Jas Sum Kral Inc
Before Lykos, Thurmon, and O’Connor,
Administrative Trademark Judges.
By the Board:
This proceeding comes before the Board for consideration of: (1) Respondent’s
motion, filed August 12, 2025, for summary judgment on Petitioner’s claims of
likelihood of confusion and nonuse (10 TTABVUE);1 (2) Petitioner’s cross-motion for
summary judgment, filed September 11, 2025, on its claim of nonuse (14 TTABVUE);
and (3) Respondent’s motion for leave to file a surreply, filed October 2, 2025 (18
TTABVUE). The motions are fully briefed.2
1 Citations to the record are to TTABVUE, the Board’s online docketing system. The number
preceding “TTABVUE” corresponds to the docket entry number; the number(s) following
“TTABVUE” refer to the page number(s) of that particular docket entry, if applicable.
2 We have carefully considered the parties’ briefs and evidence, address the record only to the
extent necessary to set forth our analysis and findings, and do not repeat or address all of the
parties’ arguments. See Guess? IP Holder LP v. Knowluxe LLC, No. 92060707, 2015 WL
9702438, at *1 (TTAB 2015).
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB

Cancellation No. 92087141
2
I. Background
Respondent owns Registration No. 6119610 for the standard-character mark JSK
NUGGS for “flavorings for tobacco, other than for essential oils, namely, cigar
flavorings containing water-based CBD with a delta-9 THC concentration of not more
than 0.3% on a dry weight basis” in International Class 34.3
In its petition to cancel, Petitioner alleges prior use and registration of the
following marks:
• for “cigars, ashtrays not of precious metal, and cigar cutters” in
International Class 34;4
• NUB, in standard characters, for “cigars, ashtrays not of precious metal,
and cigar cutters” in International Class 34;5
• NUB, in standard characters, for “humidors, cigar cases not of precious
metals, lighters not of precious metals” in International Class 34;6 and
• for “humidors, cigar cases not of precious metals, lighters not of
precious metals” in International Class 34.7
1 TTABVUE 4-5, ¶ 2; id. at 6, ¶¶ 5-6.
3 Issued August 4, 2020 on the Principal Register. The underlying application was filed
December 20, 2018 under Trademark Act Section 1(b), 15 U.S.C. § 1051(b), and a notice of
allowance was issued November 26, 2019. A statement of use was filed May 23, 2020,
claiming a first use of the mark anywhere and date of first use of the mark in commerce on
September 28, 2018. “NUGGS” is disclaimed.
4 Registration No. 3617450; issued May 5, 2009; renewed.
5 Registration No. 3617452; issued May 5, 2009; renewed.
6 Registration No. 3728947; issued December 22, 2009; renewed.
7 Registration No. 3737434; issued January 12, 2010; renewed.

Cancellation No. 92087141
3
As grounds for cancellation, Petitioner pleads: (1) likelihood of confusion under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); (2) abandonment under
Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3); and (3) nonuse in commerce
under Section 14(6) of the Trademark Act, 15 U.S.C. § 1064(6). See id. at 7-11, ¶¶ 10-
34.
In its answer, Respondent denies the salient allegations of the petition to cancel
and pleads five putative affirmative defenses.8 4 TTABVUE.
On August 12, 2025, Respondent filed a motion for summary judgment on
Petitioner’s claims of likelihood of confusion and nonuse. See 10 TTABVUE 4-5.
8 An affirmative defense is “[a] defendant’s assertion raising new facts and arguments that,
if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint
are true.” H.D. Lee Co. v. Maidenform Inc., No. 91168309, 2008 WL 1976596, at *3 (TTAB
2008) (citing Black’s Law Dictionary, p. 430 (7th ed. 1999)). See also Blackhorse v. Pro
Football Inc., No. 92046185, 2011 WL 1886402, at *5 (TTAB 2011) (“An affirmative defense
does not negate the elements of the cause of action; it is an explanation that bars the claim.”).
For its first affirmative defense, Respondent alleges that it has “continuously used the JSK
NUGGS mark in commerce since at least 2019.” 4 TTABVUE 3, ¶ 1. For its second affirmative
defense, Respondent alleges that its mark is “distinctive and not likely to cause confusion”
with Petitioner’s marks. Id. at 3, ¶ 2. For its third affirmative defense, Respondent alleges
that it owns a United States patent, “which protects key innovations of the JSK NUGGS
product, further distinguishing it from Petitioner’s products.” Id. at 3, ¶ 3. For its fourth
affirmative defense, Respondent alleges that its “goods, marketing, and target consumers are
distinct from those of Petitioner.” Id. at 3, ¶ 4. For its fifth affirmative defense, Respondent
alleges that it has “acted in good faith in the development, marketing, and sale of its products
under the JSK NUGGS mark.” Id. at 3, ¶ 5. We construe these allegations, which are not
true affirmative defenses, as amplifications of Respondent’s denials of Petitioner’s claims.
See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 311.02(d)
(2025) (“An answer may include affirmative assertions that, although they may not rise to
the level of an affirmative defense, nevertheless state the reasons for, and thus amplify, the
defendant’s denial of one or more of the allegations in the complaint. These amplifications of
denials, whether referred to as ‘affirmative defenses,’ ‘avoidances,’ ‘affirmative pleadings,’ or
‘arguments,’ are permitted by the Board because they serve to give the plaintiff fuller notice
of the position which the defendant plans to take in defense of its right to registration.”).

Cancellation No. 92087141
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On September 11, 2025, Petitioner filed a combined response to Respondent’s
motion for summary judgment and a cross-motion for summary judgment on its claim
of nonuse. 14 TTABVUE.
On October 2, 2025, Respondent filed a motion for leave to file a surreply. 18
TTABVUE.
II. Respondent’s Motion for Leave to File a Surreply
We turn first to Respondent’s motion for leave to file a surreply. Beyond the brief
in response to a motion for summary judgment and a reply brief, “[t]he Board will
consider no further papers in support of or in opposition to a motion for summary
judgment.” Trademark Rule 2.127(e)(1), 37 C.F.R. § 2.127(e)(1). Although a party may
file a surreply for the limited purpose of bringing supplemental legal authority
issuing after briefing on a summary judgment motion to the Board’s attention, such
a submission may not be used as a subterfuge to avoid the prohibition on filing
surreplies. See Omega SA (Omega AG) (Omega Ltd.) v. Alpha Phi Omega, No.
91197504, 2016 WL 1642738, at *1 n.2 (TTAB 2016); TBMP § 528.05(a)(1).
Respondent’s proposed surreply is not offered for the purpose of bringing
supplemental legal authority to the Board’s attention. See generally 18 TTABVUE.
Accordingly, Respondent’s motion for leave to file a surreply is denied and its
proposed surreply will not be considered.
III. The Parties’ Cross-Motions for Summary Judgment on Nonuse
For the reasons explained below, we grant Petitioner’s cross-motion for summary
judgment on its nonuse claim and deny Respondent’s motion for summary judgment

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on that claim. Inasmuch as our decision on the nonuse claim is dispositive of this
proceeding, Petitioner’s likelihood of confusion and abandonment claims are moot
because Respondent’s registration is void ab initio.9
A. Legal Standard
Summary judgment is an appropriate method of disposing of cases in which there
is no genuine dispute as to any material fact, thus allowing the case to be resolved as
a matter of law. See Fed. R. Civ. P. 56(a). The party moving for summary judgment
has the initial burden of demonstrating that there is no genuine dispute of material
fact remaining for trial and that it is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1987). All evidence must
be viewed in a light favorable to the non-movant, and all justifiable inferences are to
be drawn in the non-movant’s favor. Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d
766, 767 (Fed. Cir. 1993); Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d
847, 850 (Fed. Cir. 1992). In deciding a summary judgment motion, the Board may
not resolve disputes of material fact; it may only ascertain whether such disputes
exist. Lloyd’s Food Prods., Inc., 987 F.2d at 767; Opryland USA Inc., 970 F.2d at 849;
Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 202 (Fed. Cir. 1992).
A factual dispute is genuine if, on the evidence of record, a reasonable fact finder
could resolve the matter in favor of the non-movant. Opryland USA Inc., 970 F.2d at
850; Olde Tyme Foods, Inc., 961 F.2d at 202. The evidence submitted by the non-
9 Accordingly, we do not and need not reach Respondent’s motion for summary judgment on
Petitioner’s likelihood of confusion claim.

Cancellation No. 92087141
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movant, in opposition to a motion for summary judgment, is to be believed, and all
justifiable inferences are to be drawn in its favor. Opryland USA Inc., 970 F.2d at
850.
Where the party moving for summary judgment on a claim bears the burden of
proof at trial on that claim, the moving party “must lay out the elements of its claim,
citing the facts it believes satisfies those elements, and demonstrating why the record
is so one-sided as to rule out the prospect of the nonmovant prevailing.” 10A CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE CIVIL § 2727.1 (4th ed.
2025). Where the party moving for summary judgment does not bear the burden of
proof at trial, the party may discharge its initial burden of production either by
submitting affirmative evidence that negates an essential element of the nonmoving
party’s claim or by demonstrating that the nonmoving party’s evidence is insufficient
to establish an essential element of the claim. See Celotex Corp., 477 U.S. at 325.
If the movant successfully discharges its initial burden of production, then the
burden shifts to the non-movant to demonstrate the existence of disputes of material
fact that must be resolved at trial. The non-movant may not rest on mere denials or
conclusory assertions, but rather must proffer countering evidence, by affidavit or by
means otherwise provided in Fed. R. Civ. P. 56, showing that there is a genuine
factual dispute for trial. Enbridge, Inc. v. Excelerate Energy L.P., No. 91170364, 2009
WL 3541047, at *3 (TTAB 2009).
When cross-motions for summary judgment are presented, the Board evaluates
each motion on its own merits and resolves all doubts and inferences against the

Cancellation No. 92087141
7
party whose motion is being considered. Ava Ruha Corp. v. Mother’s Nutritional Ctr.,
Inc., No. 92056067, 2015 WL 496141, at *4 (TTAB 2015).
B. Analysis and Order
1. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action must be established in every inter
partes proceeding. Austl. 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)). To establish entitlement to a statutory cause of
action under Section 14 of the Trademark Act, 15 U.S.C. § 1064, on summary
judgment, a plaintiff must demonstrate the absence of a genuine dispute of material
fact that it has (i) an interest falling within the zone of interests protected by the
statute, and (ii) a reasonable belief in damage proximately caused by the registration
of the mark. See Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir.
2022) (citing Lexmark Int’l, Inc., 572 U.S. at 129); Corcamore, LLC v. SFM, LLC, 978
F.3d 1298, 1303-05 (Fed. Cir. 2020); Empresa Cubana Del Tabaco v. Gen. Cigar Co.,
753 F.3d 1270, 1275 (Fed. Cir. 2014).
With its petition to cancel, Petitioner submitted copies of its pleaded registrations
obtained from the United States Patent and Trademark Office’s (USPTO) Trademark
Status and Document Retrieval (TSDR) database, showing their current title and
status.10 See 1 TTABVUE 15-25. Petitioner’s pleaded registrations, which are
10 We note that Petitioner submitted duplicate status and title copies of its pleaded
registrations as exhibits to its cross-motion for summary judgment. See 14 TTABVUE 43-53.
The submission of duplicative evidence is unnecessary and a burden on the Board. See ITC
Entm’t Group Ltd. v. Nintendo of Am. Inc., No. 92023557, 1998 WL 132925, at *1 (TTAB

Cancellation No. 92087141
8
received in evidence and made part of the record pursuant to Trademark Rule
2.122(d), 37 C.F.R. § 2.122(d), establish the lack of a genuine dispute of material fact
that Petitioner is entitled to maintain this proceeding.11 See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000). Once a plaintiff demonstrates its
entitlement to a statutory cause of action on one ground, it has the right to assert any
other legally sufficient ground in this proceeding. See Int’l Dairy Foods Ass’n v.
Interprofession du Gruyère, No. 91232427, 2020 WL 4559436, at *10 (TTAB 2020).
2. Nonuse
Section 45 of the Trademark Act defines “use in commerce” for goods as:
[T]he bona fide use of a mark in the ordinary course of trade, and not
made merely to reserve a right in a mark. … [A] mark shall be deemed
to be in use in commerce ... on goods when– (A) it is placed in any manner
on the goods or their containers or the displays associated therewith or
on the tags or labels affixed thereto, or if the nature of the goods makes
it impracticable, then on documents associated with the goods or their
sale, and (B) the goods are sold or transported in commerce[.]
1998) (filing of unnecessary papers strongly discouraged). Instead, the parties are encouraged
to cite to the TTABVUE docket entry and TTABVUE page number, e.g., 1 TTABVUE 2,
whenever possible. See TBMP §§ 106.03, 110.03(c).
11 Respondent’s arguments to the contrary, which rely on Empresa Cubana Del Tabaco, 753
F.3d at 1275 and “Reefer Madness, LLC v. Harbor Brands, LLC, 2024 TTAB LEXIS 123” to
support its assertions that “[s]peculative harm is insufficient for standing” and that
Petitioner’s belief in damage is not “reasonable” because “Petitioner presents no lost sales,
no survey evidence, and no dilution” (10 TTABUE 5; 15 TTABVUE 3-4), are unavailing. First,
Respondent’s citation to “Reefer Madness” is both futile and improper because, as Petitioner
suggests (see 14 TTABVUE 7 n.1; 17 TTABVUE 3 n.1), no such case exists. Second, Empresa
Cubana makes no requirement concerning lost sales, survey evidence, or dilution with
respect to entitlement to a statutory cause of action, and instead supports the proposition
that, to seek cancellation of a mark, a plaintiff need only show a “real interest” in the
proceeding and a “reasonable basis” for its belief of damage. 753 F.3d at 1275. See also
Blackhorse, 2011 WL 1886402, at *7 (“The term ‘damage’ as used in Sections 13 and 14 of the
Trademark Act concerns only a party’s standing to file an opposition or petition to cancel . . .
There is no requirement that actual damage be pleaded and proved in order to establish
standing or to prevail in an opposition or cancellation proceeding.”).

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15 U.S.C. § 1127. A registration that issues from an application based on an intent to
use the mark in commerce under Section 1(b) of the Trademark Act is void ab initio
if the mark was not in use in commerce in connection with the goods listed in the
application as of the expiration of the time to file a statement of use, including any
extensions of the initial six-month period. See 15 U.S.C. § 1051(d); Trademark Rule
2.88(a), 37 CFR § 2.88(a); Ashland Licensing & Intellectual Prop. LLC v. Sunpoint
Int’l Grp. USA Corp., No. 92057294, 2016 WL 11919421, at *7 (TTAB 2016);
Embarcadero Techs., Inc. v. Delphix Corp., No. 91197762, 2016 WL 462869, at 7-8
(TTAB 2016).
In this case, a notice of allowance issued in connection with Respondent’s
underlying application on November 26, 2019, and Respondent filed a statement of
use on May 23, 2020, three days before the deadline to file a statement of use expired
on May 26, 2020. See supra note 3.
In support of its motion for summary judgment on Petitioner’s claim of nonuse,
Respondent argues, inter alia, that its invoices and other documents provided at
Exhibit D to its motion show “uninterrupted, compliant sales since 2019.”12 10
TTABVUE 5. Respondent’s cover sheet to Exhibit D describes the evidence attached
thereto as “[p]roduction records and compliance documents for JSK NUGGS cigars.”
Id. at 67.
12 We note that the documents submitted at Exhibit D to Respondent’s motion display credit
card numbers, federal tax identification numbers, and other sensitive information. See, e.g.,
10 TTABVUE 70-73, 75, 77-84, 89-93. Out of an abundance of caution, we have sealed the
entirety of Respondent’s motion for summary judgment appearing at 10 TTABVUE. At the
end of this order, Respondent will be instructed to file a redacted copy of its motion for the
public record.

Cancellation No. 92087141
10
In response to Respondent’s motion for summary judgment on nonuse and in
support of its cross-motion on the same claim, Petitioner argues, inter alia, that
“Respondent has never used the JSK NUGGS Mark in commerce in connection with
the [goods in the subject registration].” 14 TTABVUE 20. In support thereof,
Petitioner relies, inter alia, on Respondent’s responses to Petitioner’s first set of
interrogatories, wherein Respondent admits, among other things, that it has
“exclusively used the Subject Mark, JSK NUGGS, with premium hand-rolled cigars
infused with CBD flavoring.” See id. at 18, 35.
In reply to its motion for summary judgment and in response to Petitioner’s cross-
motion, Respondent asserts, inter alia, that: (1) the subject registration “identifies
‘cigar flavorings containing water-based CBD’” (15 TTABVUE 4); (2) “[Respondent’s]
infused cigars fit this description” (id.); and (3) “[t]here is no requirement to sell
flavoring as a separate product” (id.).13 In support of its arguments, Respondent
provides the declaration of its owner, Riste Ristevski, wherein Mr. Ristevski attests,
inter alia, that “[Respondent] has continuously used the JSK NUGGS mark in
13 In support of its contention that “‘flavoring for tobacco’ includes infused cigars,” Respondent
cites “In re Brown & Bigelow, Inc., 213 USPQ 498, 501 (TTAB 1982).” See 15 TTABVUE 4.
Like Respondent’s earlier citation of “Reefer Madness, LLC v. Harbor Brands, LLC, 2024
TTAB LEXIS 123” (see supra note 11), no such case exists. Respondent is warned that
defective citations call into question the reliability of its submissions. While Respondent’s
reliance on the two nonexistent citations mentioned herein may be an isolated event, this
sort of incident—possibly resulting from the use of artificial-intelligence tools or other
expedients without verifying the output—indicates insufficient review of Respondent’s filings
for truthfulness and accuracy prior to their submission to the Board, and undermines the
integrity of Board proceedings. The Board possesses the inherent authority to sanction such
conduct.

Cancellation No. 92087141
11
commerce since at least September 28, 2018, for CBD-infused cigars flavored with
water-based CBD.” Id. at 7, ¶ 2.
In reply to its cross-motion for summary judgment, Petitioner contends, inter alia,
that “both parties agree that Respondent’s only use of the JSK NUGGS Mark is in
connection with cigars,” and that, because “use of a mark on goods other than those
recited in the registration cannot establish trademark use,” Petitioner is entitled to
summary judgment in its favor on its nonuse claim. 17 TTABVUE 4-5.
Based on the evidence of record, Respondent has failed to establish an absence of
a genuine dispute of material fact with respect to its use of the subject mark in
commerce in connection with the goods identified in the subject registration as of the
deadline to file a statement of use. As discussed supra, in support of its assertions of
“uninterrupted, compliant sales since 2019,” Respondent relies primarily on invoices
and other evidence submitted as Exhibit D to its motion. See 10 TTABVUE 5; id. at
67-253. Even assuming, as Respondent claims, that Exhibit D shows timely use of
the subject mark in commerce in connection with cigars infused with flavoring, such
use does not show use in connection with “flavorings for tobacco, other than for
essential oils, namely, cigar flavorings containing water-based CBD with a delta-9
THC concentration of not more than 0.3% on a dry weight basis” (i.e., the goods
identified in the subject registration), or with any other goods encompassed thereby.14
14 The remainder of Respondent’s evidence in support of its motion for summary judgment,
consisting of Respondent’s expert disclosure for Daniel R. Brandt, Mr. Brandt’s unsigned and
undated expert declaration, and Petitioner’s responses to Respondent’s first requests for
admission, first set of interrogatories, and first requests for production of documents (see 10
TTABVUE 7-66; id. at 254-56), likewise fails to discharge Respondent’s burden on summary
judgment with respect to Petitioner’s nonuse claim.

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Cf. Fender Musical Instruments Corp. v. Win-d-fender, LLC, No. 91272326, 2022 WL
14813680, at *3 (TTAB 2022) (redesignated as precedent January 12, 2023) (“While
musical instruments may use accessories or commonly be purchased with accessories,
accessories are not themselves musical instruments, and therefore are not
encompassed by the . . . identification of ‘musical instruments.’”); Otis Elevator Co. v.
Echlin Mfg. Co., No. 91053503, 1975 WL 21258, at *5 (TTAB 1975) (finding that use
of the subject mark in connection with “parts and accessories for gasoline powered lift
trucks including spark plugs, batteries, tires and filters” did not constitute use of the
subject mark in connection with the “material handling equipment for lifting,
conveying, and lowering material” goods identified in the application, such that “the
registration that issued therefrom was a nullity”).
Indeed, turning to Petitioner’s cross-motion for summary judgment on its claim of
nonuse on the identified goods, we find that Petitioner is entitled to summary
judgment. Petitioner has discharged its burden on summary judgment by citing to
Respondent’s discovery responses, wherein Respondent plainly and unequivocally
admits that its only use of the subject mark has been in connection with cigars. For
example, in response to Petitioner’s interrogatory asking Respondent to “[d]escribe
all goods and/or services with which [Respondent] has ever used the Subject Mark,”
Respondent responds that it has “exclusively used the Subject Mark, JSK NUGGS,
with premium hand-rolled cigars infused with CBD flavoring” and that it “has not
used the mark in connection with any other type of goods or services.” 14 TTABVUE
35-36. In response to another interrogatory asking Respondent to “[d]escribe each of

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13
the circumstances under which [Respondent] has used the Subject Mark in
connection with Flavorings,” Respondent states that “[its] only use of the Subject
Mark has been on cigars infused with flavoring (CBD).” Id. at 36. In response to yet
another interrogatory asking Respondent to “[s]tate with particularity each type of
product or service promoted, sold, rendered or proposed to be promoted, sold, or
rendered in connection with Registrant’s Mark, JSK NUGGS,” Respondent again
repeats that “JSK NUGGS has been used exclusively in connection with CBD-infused
cigars.” Id. at 33.
In view of the foregoing, Petitioner has discharged its burden on summary
judgment with respect to its nonuse claim. See Fed. R. Civ. P. 56(c)(1) (“Supporting
Factual Positions. A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to particular parts of materials in the record,
including . . . interrogatory answers, or other materials.”). Accordingly, the burden
shifts to Respondent to proffer countering evidence to show that there is a genuine
factual dispute for trial. See Enbridge, Inc., 2009 WL 3541047, at *3.
Not only has Respondent failed to designate specific portions of the record or
produce evidence to demonstrate the existence of a genuine dispute of material fact
for trial, but Respondent has provided a declaration from its owner that underscores
the absence of any such genuine disputes. See 15 TTABVUE 7. In his declaration, Mr.
Ristevski attests, inter alia, that “[Respondent] has continuously used the JSK
NUGGS mark in commerce . . . for CBD-infused cigars flavored with water-based

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14
CBD,” and that “[t]he goods sold under JSK NUGGS are flavored tobacco products
consistent with Registration No. 6,119,610.” See id. at 7, ¶¶ 2, 5.
Because there is no genuine dispute of material fact that Respondent did not use
the subject mark in connection with the goods identified in the subject registration
as of the expiration of the deadline for filing a statement of use, Registration No.
6119610 is void ab initio. See Aycock Eng’g Inc. v. Airflite Inc., 560 F.3d 1350, 1357
(Fed. Cir. 2009) (a registration of a mark that was not used in commerce is void ab
initio).
In view of the foregoing, Respondent’s motion for summary judgment on
Petitioner’s nonuse claim is denied, and Petitioner’s cross-motion for summary
judgment on the same claim is granted. Accordingly, as discussed supra, Petitioner’s
remaining claims of likelihood of confusion and abandonment are moot, and we need
not reach Respondent’s motion for summary judgment on Petitioner’s likelihood of
confusion claim.
IV. Redacted Filing Due
As discussed supra at note 12, we have sealed Respondent’s motion for summary
judgment (10 TTABVUE) from public viewing due to the sensitive financial
information contained therein. Respondent is allowed until twenty (20) days from
the date of this order to file a public, redacted version of its motion for the public
record. See Kohler Co. v. Honda Giken Kogyo K.K., No. 91200146, 2017 WL 6547628,
at *6 n.19 (TTAB 2017). Cf. Trademark Rule 2.126(c); TBMP § 502.02(c) (“If a party
submits a motion containing confidential information either electronically via ESTTA

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15
or by paper under seal, the party must also submit for the public record a redacted
version of the motion.”).
V. Summary
Respondent’s motion for leave to file a surreply is denied.
Respondent’s motion for summary judgment on Petitioner’s nonuse claim is
denied, and Petitioner’s cross-motion for summary judgment on the same claim is
granted. Judgment is entered against Respondent, and Registration No. 6119610
will be cancelled in due course.
Respondent is allowed until twenty (20) days from the date of this order to
file a public, redacted version of its motion for summary judgment (10 TTABVUE) for
the public record.