DT Ecom Ltd v. Shenzhen Buer Electronic Commerce Co., Ltd.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: March 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
DT Ecom Ltd
v.
Shenzhen Buer Electronic Commerce Co., Ltd.
_____
Opposition No. 91289409
_____
Ross Brandborg, Esq., for DT Ecom Ltd
Haoyi Chen of Arch & Lake, LLP
for Shenzhen Buer Electronic Commerce Co., Ltd.
_____
Before Lykos, Lebow and Cohen,
Administrative Trademark Judges.
Opinion by Lebow, Administrative Trademark Judge:
Applicant, Shenzhen Buer Electronic Commerce Co., Ltd., seeks to register on the
Principal Register the composite mark displayed below
for “animal-activated pet feeders; animal activated livestock waterers; animal
grooming gloves; cages for household pets; dog food scoops; drinking troughs; drinking
troughs for animals; feeding troughs; feeding troughs for livestock; feeding vessels for

Opposition No. 91289409
- 2 -
pets; litter boxes for pets; pet feeding and drinking bowls,” in International Class 21.1
Opposer, DT Ecom Ltd, opposes registration of Applicant’s mark, alleging priority
and likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based on prior common law use of the mark KITTYSPOUT in connection
with “pet water bowls; pet water fountains being dishes and related products.”2
Opposer also claims ownership of a later-filed pending application for the mark
KITTYSPOUT for “pet water bowls; pet water fountains being dishes” in
International Class 21.3
Applicant denied the salient allegations of the notice of opposition in its answer.4
Only Opposer filed a brief and submitted evidence.5 Applicant did not file a brief,
take testimony, or introduce any other evidence during its testimony period, but as
This opinion cites to the Federal Reporter (e.g., F.2d, F.3d, or F.4th) for decisions of the U.S.
Court of Appeals for the Federal Circuit and the U.S. Court of Customs and Patent Appeals;
and to LexisNexis Corporation’s LEXIS legal database for decisions of the Board.
1 Application Serial No. 97843505 was filed on March 16, 2023 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s allegation of use of the mark
anywhere and in commerce since as early as March 6, 2023.
2 1 TTABVUE. Opposer’s attachment of evidence to its notice of opposition including website
excerpts did not make those materials part of the record. See Trademark Rule 2.123(k), 37
C.F.R. § 2.123(k) (evidence not obtained and filed in compliance with the rules of practice
governing inter partes proceedings before the Board will not be considered).
Citations in this opinion to the briefs and other materials in the record refer to TTABVUE,
the Board’s online docketing system. The number preceding TTABVUE corresponds to the
docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket
entry where the cited materials appear.
3 Id. at 4 (¶ 4). See also 19 TTABVUE 10-14. Application Serial No. 98227568, filed October
17, 2023 under Section 1(a) of the Trademark Act, 15. U.S.C. § 1051(a), based on Opposer’s
allegation of use of the mark anywhere and in commerce since as early as March 1, 2021.
4 5 TTABVUE.
5 21 TTABVUE.

Opposition No. 91289409
- 3 -
defendant is not required to do so. See Yazhong Investing Ltd. v. Multi-Media Tech.
Ventures, Ltd., No. 92056548, 2018 TTAB LEXIS 168, at *12 n.13 (TTAB 2018)
(“Because Respondent, as defendant herein, is under no obligation to submit evidence
or a brief, we do not construe Respondent’s failure to do so as a concession of the
case.”); see also Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1).
For the reasons discussed below, we dismiss the opposition.
I. The Record
The record includes the pleadings, and the file of the Application by operation of
Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).6 In addition, Opposer submitted
the testimony declaration of its Chief Executive Officer, Dante Timpano, with
exhibits including, amongst other things, (i) a copy of Opposer’s pending application
for the mark KITTYSPOUT; (ii) printouts of pages from Opposer’s website,
kittyspout.com; (iii) excerpts from articles and reviews featuring Opposer’s
KITTYSPOUT products; and (iv) an excerpt of domain name registration data from
icaan.org for kittyspout.com.7
6 For this reason, Opposer’s submission of further copies of the Application (including
specimens of use), Opposer’s notice of opposition, and Applicant’s answer was improper and
serves merely to clutter the trial record.
7 19 TTABVUE (“Timpano Test. Dec.”; Exhibits 1-3); 20 TTABVUE (Exhibits 5, 7-11). Other
exhibits inappropriately attached to Mr. Timpano’s testimony include Opposer’s April 28,
2025 motion for default judgment, and the Board’s order in response denying consideration
because the motion did not comply with the applicable rules after twice being warned. Id. at
28-32. This follows a pattern of inappropriate filings by Opposer. Opposer’s January 3, 2025
motion for summary judgment was given no consideration because Opposer failed to provide
proof of service on Applicant. 9-10 TTABVUE. Opposer’s January 31, 2025 motion for
summary judgment was given no consideration because it contained no evidence or
argument. 13-14 TTABVUE. Opposer’s February 1, 2025 motion for default judgment was
given no consideration because Applicant had filed an answer eleven months earlier. 17-18
TTABVUE. Opposer’s April 28, 2025 motion for default is simply a re-filing of Opposer’s

Opposition No. 91289409
- 4 -
II. Entitlement to a Statutory Cause of Action
Although Opposer does not mention the issue of its entitlement to oppose, we must
address the issue. Entitlement to a statutory cause of action must be established in
every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC,
965 F.3d 1370, 1373-74 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 125-26 n.4 (2014)). A party in the position of plaintiff
may oppose registration of a mark when such opposition is within the zone of
interests protected by the statute, Trademark Act Section 13, 15 U.S.C. § 1063, and
the plaintiff has a reasonable belief in damage that is proximately caused by
registration of the mark. Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1071
(Fed. Cir. 2022) (citing Lexmark, 572 U.S. at 129, 132); Corcamore, LLC v. SFM, LLC,
978 F.3d 1298, 1303 (Fed. Cir. 2020).
Opposer’s entitlement is supported by the testimony of Opposer’s CEO, Dante
Timpano, showing it to be a competitor of Applicant that uses the same term,
KITTYSPOUT, to identify goods—pet water bowls, pet water fountains being
dishes—that on their face overlap with the subject application’s identified “animal-
activated pet feeders; animal activated livestock waterers; animal grooming gloves;
cages for household pets; dog food scoops; drinking troughs; drinking troughs for
animals; feeding troughs; feeding troughs for livestock; feeding vessels for pets; litter
February 1, 2025 motion for default that had been given no consideration by the Board.
Opposer’s attorney clearly should familiarize himself with proper Board practice and
procedure. The Board’s manual of procedure, the TBMP, is available online at
https://tbmp.uspto.gov/RDMS/TBMP/current.

Opposition No. 91289409
- 5 -
boxes for pets; pet feeding and drinking bowls.”8 See e.g., Books on Tape, Inc. v.
Booktape Corp., 836 F.2d 519, 520 (Fed. Cir. 1987) (finding competitor has
[entitlement] standing because it has an interest in the outcome beyond that of the
general public); Peterson v. Awshucks SC, LLC, No. 92066957, 2020 TTAB LEXIS
520, at *20 (entitlement to a statutory cause of action found where petitioner and
respondent are competitors); Grote Indus., Inc. v. Truck-Lite Co., No. 91196923, 2018
TTAB LEXIS 105, at *14 ([entitlement] standing found where plaintiff and defendant
are competitors). We thus find that Opposer has demonstrated the requisite
entitlement to a statutory cause of action for potential likelihood of confusion.
III. Trademark Act Section 2(d)
Section 2(d) of the Trademark Act prohibits registration of a mark that
[c]onsists of or comprises a mark which so resembles a mark registered
in the Patent and Trademark Office, or a mark or trade name previously
used in the United States by another and not abandoned, as to be likely,
when used on or in connection with the goods of the applicant, to cause
confusion, or to cause mistake, or to deceive….
15 U.S.C. § 1052(d). Thus, Opposer must prove both priority and likelihood of
confusion, and it must do so by a preponderance of the evidence. See, e.g., Araujo v.
Framboise Holdings Inc., 99 F.4th 1377, 1380 (Fed. Cir. 2024) (“The opposer has the
burden to prove its prior use by a preponderance of the evidence.”) (citation omitted).
A. Priority
Although Applicant did not introduce any evidence in this case, it may
nevertheless rely on the March 16, 2023 filing date of its application as a constructive
8 19-20 TTABVUE.

Opposition No. 91289409
- 6 -
use date for purposes of priority of its mark. See Trademark Act § 7(c),
15 U.S.C. § 1057(c); see generally, Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No.
91188816, 2013 TTAB LEXIS 439, at *13 (“for when an application or registration is
of record, the party may rely on the filing date of the application for registration, i.e.,
its constructive use date”); Syngenta Crop Prot., Inc. v. Bio-Chek, LLC, No. 91175091,
2009 TTAB LEXIS 70, at *18 (“applicant may rely without further proof upon the
filing date of its application as a ‘constructive use’ date for purposes of priority”).
Opposer, for its part, does not own a registration and therefore must establish
priority by submitting evidence that it used its KITTYSPOUT mark in connection
with its goods prior to Applicant’s constructive use date of March 16, 2023, nor can it
rely on its pending application that was filed subsequent to Applicant’s application
as a basis for claiming priority. See RxD Media, LLC v. IP Application Dev. LLC, No.
91207333, 2018 TTAB LEXIS 37, at *23 (“In other words, because unregistered marks
are not entitled to the presumptions established under Sections 7(b)-(c) of the
Trademark Act, it is Opposer’s burden to demonstrate that it owns a trademark that
was used prior to Applicant’s first use or constructive use of its mark and not
abandoned); Life Zone Inc. v. Middleman Grp. Inc., No. 91160999, 2008 TTAB LEXIS
37, at *21 (where the opposer’s filing date was later in time it provided the opposer
“no basis for ... priority”).
Opposer argues that it has used KITTYSPOUT in U.S. commerce in connection
with “Pet water bowls; Pet water fountains being dishes” since at least as early as

Opposition No. 91289409
- 7 -
March 1, 2021.”9 According to Opposer:
This use is established by the declaration of its CEO, Dante Timpano,
and supported by its own trademark application (Serial No. 98227568)
claiming the March 1, 2021 first use date. Further evidence includes
printouts from its commercial website, www.kittyspout.com, and the
fact that its domain name was created on February 26, 2021, just prior
to its first use. Opposer has invested substantially in marketing its
products, which have received positive media coverage from major
outlets like USA Today.10
These contentions are unavailing. “Oral testimony, even of a single witness, if
‘sufficiently probative,’ may be sufficient to prove priority” especially when
“buttressed by [ ] documentary evidence.” Kohler Co. v. Baldwin Hardware Corp.,
2007 TTAB LEXIS 3, at *23 (citing Powermatics, Inc. v. Globe Roofing Products Co.,
341 F.2d 127 (CCPA 1965)). Although Mr. Timpano states, generally, that “[s]ince at
least as early as March 1, 2021, Opposer has continuously used the trademark
KITTYSPOUT in commerce in the United States in connection with pet products,
specifically Pet water bowls; Pet water fountains being dishes,”11 he provides no
explanation regarding the manner of the purported use or documentary evidence to
support his testimony. Section 45 of the Trademark Act defines “use in commerce” for
goods as
the 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
9 21 TTABVUE 4 (Opposer’s Brief).
10 Id. at 4-5.
11 19 TTABVUE 3 (Timpano Decl. ¶ 3).

Opposition No. 91289409
- 8 -
sale, and (B) the goods are sold or transported in commerce[.]
15 U.S.C. § 1127. But the record here is devoid of any documentary evidence such as
invoices showing that Opposer actually sold or transported pet water bowls or
fountains being dishes in commerce under the mark KITTYSPOUT on any particular
date, much less a date prior to Applicant’s constructive use date of March 16, 2023.
In addition, while Opposer claims a date of first of use in commerce of March 1,
2021 in its later-filed pending application for the mark KITTYSPOUT that is of
record in this case, it does not benefit Opposer here. Trademark Rule 2.122(b)(2)
explicitly states that “the allegation in an application for registration, or in a
registration, of a date of use is not evidence on behalf of the applicant or registrant;
a date of use of a mark must be established by competent evidence.” 37 C.F.R. §
2.122(b)(2). See also In re Mr. Recipe, LLC, No. 86040643, 2016 TTAB LEXIS 80, at
*16 (“a pending application is evidence only that the application was filed on a certain
date; it is not evidence of use of the mark”).
The printouts from Opposer’s website (kittyspout.com) that Mr. Timpano provided
with testimony that he states were “accessed on 5/15/2025, demonstrating the use of
the KITTYSPOUT mark in connection with its goods,” do not prove any such use.
First, the webpage printouts merely show advertising of Opposer’s goods, not the sale
or transportation of them in commerce. Furthermore, the date that the webpage
printouts were accessed by Mr. Timpano fall well outside the time period at issue in
this case, where Opposer, to prevail, must establish a date of first use in commerce
that is prior to Applicant’s constructive use date of March 16, 2023. The evidence thus

Opposition No. 91289409
- 9 -
has no bearing on when Opposer began using its mark in commerce, if at all.
Mr. Timpano’s provision of a “copy of the ICANN Lookup for the domain name
kittyspout.com, showing the creation date of February 26, 2021, by opposer,” does not
bring Opposer any closer to establish a date of use, much less a date of use that is
prior to Applicant’s constructive use date because “registration of domain names does
not constitute use in commerce.” CBC Mort. Agency v. TMRR, LLC, No. 92076723,
2022 TTAB LEXIS 295, at *32 n.15. See also Brookfield Commc’ns Inc. v. West Coast
Entm’t Corp., 174 F.3d 1036, 1052 (9th Cir. 1999) (mere registration of domain name
does not constitute use of trademark in commerce); Stawski v. Lawson, No. 94002621,
2018 TTAB LEXIS 438, at *26 (same).
Neither do the several article-excerpts that Mr. Timpano provided with his
testimony showing “positive media coverage” of Opposer’s products “from major
outlets like USA Today” indicate that Opposer began using the mark by any
particular date, much less a date prior to that of Applicant’s constructive use date.
Even if they did, the webpages cannot be considered for the truth of their content. See
Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., No. 91224000, 2020 TTAB LEXIS
3, *7 (Internet printouts are considered only for what they show on their face rather
than for the truth of the matters asserted therein).12
12 Mr. Timpano testified that Exhibit 5 to his testimony included “reviews featuring Opposer’s
KITTYSPOUT products.” 19 TTABVUE 4 (Timpano Dec. ¶ 5(d)). Upon review, we find that
the exhibit includes a single customer review from its website, dated March 9, 2021 giving
Opposer’s drinking fountain product praise. We cannot consider this review as competent
evidence of the sale or transportation of Opposer’s goods under the mark KITTYSPOUT
notwithstanding the indication of a date of review because the document is hearsay. See Fed.
R. Civ. P. 802. It thus cannot be relied on for the truth of its content. See, e.g., Optimal
Chemical Inc. v. Srills LLC, 2019 TTAB LEXIS 301, at *6 n.13 (website printouts are hearsay

Opposition No. 91289409
- 10 -
The evidence, as a whole, fails to establish by a preponderance of the evidence that
Opposer used its pleaded KITTYSPOUT mark in commerce in connection with “pet
water bowls; pet water fountains being dishes and related products” prior to the
constructive use filing date of March 16, 2023 for Applicant’s mark.
See Gen. Motors Corp. v. Aristide & Co., No. 91167007, 2008 TTAB LEXIS 18, 24 (no
common law use found where it was “unclear [from the evidence] whether or when
and on what goods” the mark had “actually been used”). Accordingly, Opposer has
failed to prove a critical element of its Section 2(d) claim, priority, and cannot prevail.
We thus need not reach the issue of likelihood of confusion.
Decision: The opposition is dismissed.
and admissible under notice of reliance for what they show on their face but may not be relied
upon for the truth of the matters asserted unless supported by testimony or other evidence).