Redbeet Interactive AB v. Alexander Novikov

This Opinion is Not a
Precedent of the TTAB
Mailed: November 20, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Redbeet Interactive AB
v.
Alexander Novikov
_____
Cancellation No. 92075698
_____
Elizabeth G. Borland and Scott D. Woldow of Smith, Gambrell & Russell, LLP for
Redbeet Interactive AB.
Alexander S. Lazouski of Lazouski IP LLC for Alexander Novikov.
_____
Before Wellington, Larkin, and Stanley,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
This case involves two foreign parties who each claim to have been the first to
develop rights in the United States in the trademark RAFT for computer games.
Alexander Novikov (“Respondent” or “Registrant”), a Russian citizen, owns
Registration No. 5447897 (the “’897 Registration”) of the standard-character mark

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RAFT for “Computer game software for use on mobile and cellular phones, namely,
survival mobile games” in International Class 9.1
Redbeet Interactive AB (“Petitioner”), a Swedish company, has petitioned to
cancel the ’897 Registration under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the sole ground that Petitioner is the prior user of the RAFT mark for
computer games, and there is a likelihood of confusion.2
After several years of pre-trial skirmishing, the case is fully briefed,3 and ready
for decision. We grant the Second Amended Petition to Cancel.
1 The ’897 Registration issued on April 17, 2018 from a use-based application filed on
September 12, 2017. Respondent maintained his registration during the pendency of this
proceeding through the filing on April 12, 2024 of a declaration of continuing use under
Section 8 of the Trademark Act, 15 U.S.C. § 1058, which was accepted by the United States
Patent and Trademark Office (“USPTO”) on January 6, 2025.
2 This case is not the only one between the parties. In Opposition No. 91273040, Petitioner
opposes Respondent’s registration of the marks RAFT SURVIVAL: OCEAN NOMAD and
RAFT SURVIVAL: DESERT NOMAD for “Downloadable computer game software for use on
mobile and cellular phones, personal computers, laptops, home video game consoles, smart
TV sets, namely, survival games; Downloadable computer game software; Downloadable
computer game software for personal computers and home video game consoles;
Downloadable electronic game software for handheld electronic devices.” That case has been
suspended pending the outcome of this one. 49 TTABVUE 4 (Opp. No. 91273040).
3 Citations in this opinion to the briefs and other materials in the case docket 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. Petitioner’s redacted main brief
appears at 123 TTABVUE and its reply brief appears at 126 TTABVUE. Petitioner’s
unredacted main brief, filed under seal, appears at 124 TTABVUE. Respondent’s brief
appears at 125 TTABVUE.
Respondent also filed a “Sur-Reply Brief,” 127 TTABVUE, which he admits cannot be
considered by the Board on the merits of the case, but which he claims was filed to set the
record straight regarding the conduct of his counsel and various arguments made by
Respondent. Id. at 2 (citing Trademark Rules 2.127(a) and (e)(1), 37 C.F.R. §§ 2.127(a) and
2.127(e)(1)). “’There is no provision for filing a reply brief, rebuttal brief, rejoinder brief, etc.
by a party in the position of defendant” and “[i]f a party in the position of defendant files such
a brief, it may be stricken, or given no consideration, by the [Board].’” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 1370 (Fed. Cir. 2018) (citing TRADEMARK TRIAL AND APPEAL BOARD

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I. The Record and Evidentiary Issues
The Record
The record in this case consists of more than 2,500 pages of testimony and
documents. It includes the pleadings,4 the file history of the ’897 Registration, by
operation of Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), and the following
materials submitted by the parties:
Petitioner
• Testimony Declaration of Kacper Antoniszczak, the CEO of the publisher
of Petitioner’s RAFT computer game, and Exhibits 1-22 thereto
(“Antoniszczak Declaration” or “Antoniszczak Decl.”), 75 TTABVUE 1-
107;5
• Testimony Declaration of Alva Hansson, a Swedish attorney, and Exhibits
23-46 thereto, 116 TTABVUE 1-155;6
• Testimony Declaration of André Bengtsson, one of the creators of
Petitioner’s RAFT computer game while a student at the University of
MANUAL OF PROCEDURE (“TBMP”) Section 801.02(d) (June 2017)). We have given
Respondent’s “Sur-Reply Brief” no consideration.
4 The operative pleadings are Petitioner’s Second Amended Petition to Cancel, 50 TTABVUE
2-85, and Respondent’s Answer to Petitioner’s Second Amended Petition to Cancel, 51
TTABVUE 2-18. Respondent denied most of the salient allegations in the Second Amended
Petition to Cancel, but admitted several allegations relevant to the likelihood of confusion
element of Petitioner’s Section 2(d) claim, which we discuss below. Respondent also asserted
three purported Affirmative Defenses: (1) priority, (2) Petitioner’s alleged admission, in its
response to an office action on its own application to register RAFT and design, that confusion
is unlikely between the parties’ marks, and (3) laches. Answ. Aff. Defs. ¶¶ 1-3 (51 TTABVUE
8-9). Respondent discussed priority and the other two purported defenses in his trial brief,
and we address them below.
5 Certain portions of the Antoniszczak Declaration and certain exhibits thereto were
designated as confidential under the Board’s Standard Protective Order and were filed under
seal at 77 TTABVUE.
6 Exhibits 43-46 to the Hansson Declaration were designated as confidential under the
Board’s Standard Protective Order and were filed under seal at 72 TTABVUE.

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Uppsala in Sweden, and Exhibits 47-153 thereto (“Bengtsson Declaration”
or “Bengtsson Decl.”), 67 TTABVUE 1-331; 68 TTABVUE 1-197;7
• Testimony Declaration of Scott D. Woldow, one of Petitioner’s counsel of
record, and Exhibits 127-29 and 168-70 thereto (“Woldow Declaration” or
“Woldow Decl.”), 84 TTABVUE 1-90;8
• Testimony Declaration of Elizabeth G. Borland, one of Petitioner’s counsel
of record, and Exhibits 171-87 thereto, 88 TTABVUE 1-147;
• Declaration of Martin Laine, an investigative journalist in Estonia, and
Exhibits 41-42 thereto, 86 TTABVUE 1-32;
• Rebuttal Declaration of Emily Apéll, a Swedish attorney, and Exhibits 199-
200 thereto, submitted during Petitioner’s rebuttal period, 119 TTABVUE
1-13;
• Rebuttal Declaration of André Bengtsson, and Exhibits 194-98 and 201
thereto (“Bengtsson Rebuttal Declaration” or “Bengtsson Rebut. Decl.”),
submitted during Petitioner’s rebuttal period, 121 TTABVUE 1-53;
• Transcript of the Cross-Examination of Respondent, and Exhibits 188-93
thereto (“Novikov Cross Tr.”), taken on written questions and submitted
during Petitioner’s rebuttal period, 118 TTABVUE 1-302;9
• First Notice of Reliance on USPTO electronic records regarding
Petitioner’s pending application Serial No. 79269576 (the “’576
Application”) and the file history of Respondent’s ’897 Registration, 78
TTABVUE 1-176;10
7 Certain portions of the Bengtsson Declaration and certain exhibits thereto were designated
as confidential under the Board’s Standard Protective Order and were filed under seal at 69-
70 TTABVUE.
8 Exhibits 127 and 129 to the Woldow Declaration were designated as confidential under the
Board’s Standard Protective Order and were filed under seal at 83 TTABVUE.
9 We will cite the transcripts of depositions by page and line numbers as well as TTABVUE
numbers.
10 As noted above, the file history of Respondent’s ’897 Registration is automatically of record,
and it was unnecessary for Petitioner to file it separately.

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• Second Notice of Reliance on Petitioner’s original and amended petitions
to cancel, and Respondent’s answers thereto, 79 TTABVUE 1-90;11
• Third Notice of Reliance on certain of Petitioner’s discovery requests and
Respondent’s responses thereto, 80 TTABVUE 1-161; and
• Fourth Notice of Reliance on certain of Petitioner’s interrogatories and
Respondent’s responses thereto, 82 TTABVUE 1-30.12
Respondent
• Declaration of Respondent Alexander Novikov, and Exhibits 1-3 thereto
(“Novikov Declaration”), 106 TTABVUE 1-202;13
• Declaration of Alexander Lazouski, Respondent’s counsel of record, and
Exhibits A-J and L-M thereto (“Lazouski Declaration” or “Lazouski Decl.”),
107 TTABVUE 1-413;
• Transcript of the discovery deposition of André Bengtsson (“Bengtsson
Tr.”), 109 TTABVUE 1-35;14 and
11 “The pleadings are automatically of record,” Monster Energy Co. v. Lo, Opp. No. 91225050,
2023 WL 417620, at *2 (TTAB 2023), and it was unnecessary for Petitioner to file them
separately.
12 Petitioner designated certain responses as confidential under the Board’s Standard
Protective Order and filed them under seal at 81 TTABVUE.
13 The Novikov Declaration is the subject of an evidentiary objection asserted by Petitioner
that we address below.
14 The transcript of Mr. Bengtsson’s discovery deposition submitted by Respondent violated
Trademark Rule 2.123(g)(1), 37 C.F.R. § 2.123(g)(1), which requires that “[t]he deposition
transcript must be submitted in full-sized format (one page per sheet), not condensed
(multiple pages per sheet).” The submission of sheets containing multiple pages complicated
our review of the transcript.
Portions of the transcript were designated as confidential under the Board’s Standard
Protective Order and were filed under seal at 108 TTABVUE. We are not bound by the
parties’ confidentiality designations. See, e.g., Kohler Co. v. Honda Giken Kogyo K.K., Opp.
No. 91200146, 2017 WL 6547628, at *5 (TTAB 2017). “‘[T]he Board must be able to discuss
the record evidence it its opinions, unless there is an overriding need for confidentiality, so
that the parties and a reviewing court will know the basis of the Board's
decisions,”’ id. (quoting Noble House Home Furnishings, LLC v. Floorco Enters., LLC, Canc.
No. 92057394, 2016 WL 3357265, at *4 n.21 (TTAB 2016)), and we “may treat as not
confidential that material which cannot reasonably be considered confidential,
notwithstanding a designation as such by a party.” Trademark Rule 2.116(g), 37 C.F.R. §
2.116(g).

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• Notice of Reliance on Respondent’s ’897 Registration, and Petitioner’s
pending ’576 Application, 90 TTABVUE 1-178.15
Evidentiary Issues
Appendices to the parties’ briefs contain various evidentiary objections and
responses to such objections. 123 TTABVUE 58-67; 125 TTABVUE 50-61; 126
TTABVUE 27-35. As a general matter, “[b]ecause a cancellation proceeding is akin to
a bench trial, the Board is capable of assessing the proper evidentiary weight to be
accorded the testimony and evidence, taking into account the imperfections
surrounding the admissibility of such testimony and evidence.” Peterson v. Awshucks
SC, LLC, Canc. No. 92066957, 2020 WL 7888976, at *4 (TTAB 2020). The Board
normally does not consider objections to evidence that are not at least potentially
outcome-determinative, id., but some of the parties’ objections require rulings
because the admission or exclusion of the challenged evidence is important to our
decision on Petitioner’s sole claim for relief under Section 2(d) of the Trademark Act.
Petitioner’s Objection to the Novikov Declaration on the Ground That He
is Not Competent to Testify in English and His Testimony is Hearsay
Petitioner objects to the Novikov Declaration “in its entirety because Mr. Novikov
was not competent to provide such Declaration and there is no reason to believe that
[he] understood what he signed.” 123 TTABVUE 58. Petitioner argues that the
“Novikov Declaration is in English and was signed by Mr. Novikov,” a Russian
15 As noted above, the file history of Respondent’s ’897 Registration is automatically of record,
and it was unnecessary for Respondent to file it separately. The file history of Petitioner’s
’576 Application was already of record, and it was unnecessary for Respondent to submit it
again. Respondent also purported to make the Lazouski Declaration and exhibits thereto of
record under notice of reliance, 92 TTABVUE 1-446, even though it was filed separately.

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speaker, but that “during cross-examination, Mr. Novikov required a Russian
translator in order to understand the questions asked of him, and he responded only
in Russian throughout the deposition, requiring the translator to translate his
responses back into English for the record.” Id. at 58-59.16
Petitioner also points to Respondent’s cross-examination testimony that he
understands English “at a very low – low level,” and that he required a translator at
his cross-examination deposition “[i]n order to have a full understanding of the
questions asked of me,” Novikov Cross Tr. 14:23-15:6 (118 TTABVUE 16-17), and to
Respondent’s testimony that he had his English-language Declaration translated into
Russian and that “I read it. I understood it.” Novikov Cross Tr. 43:20-44:3 (118
TTABVUE 45-46).
Petitioner argues that
[t]hus, Mr. Novikov has testified under oath that he does
not understand English and needs an interpreter to
understand it. He has also testified that he had some
unidentified person translate his declaration for him and
then he signed the English declaration. However, there is
no evidence of this alleged translation or whether this
alleged declaration was accurate. The English declaration
that he signed could be something completely different
from what an alleged translator told him. With no Russian
version of the declaration entered into evidence and no
testimony verifying the accuracy of such Russian version of
the declaration, there is no way to verify that Mr. Novkov
[sic] had any understanding of what he signed or any
reason to believe that the English statements in the
declaration are truthful. As a result, Mr. Novikov’s signing
16 Because Respondent is a Russian citizen, and Russia apparently does not permit the taking
of depositions in Russia in cases pending in tribunals in other countries, Respondent’s cross-
examination was conducted in Cyprus based on written questions provided to Respondent
and his counsel in advance.

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of a document after some unidentified translator told him
what it says constitutes hearsay.
123 TTABVUE 59-60 (emphasis supplied by Petitioner). Petitioner concludes that
“Mr. Novikov has no personal knowledge of the English statements in the declaration
and is not competent to testify in English. Accordingly, the Novikov Declaration
should be stricken in its entirety.” Id. at 60.
Respondent’s counsel argues that Petitioner “attempts to discredit Alexander
Novikov’s declaration . . . alleging he lacked sufficient English proficiency to
understand the document he signed” and that “[t]his claim is not only unsupported
by the record, it is contradicted by [Petitioner’s] own conduct throughout this
proceeding.” 125 TTABVUE 50. Respondent’s counsel notes that Petitioner’s counsel
requested that Respondent log off during portions of the remote discovery deposition
testimony of Petitioner’s CEO involving commercially sensitive information, and that
this shows that Petitioner believed that Respondent could understand the testimony
in English. Id. Respondent’s counsel further argues that Respondent’s testimony
regarding his review of the English-language Novikov Declaration reflects that he
“reviewed the declaration in English, understood it, and additionally relied on
translation to confirm his understanding,” doing “double the work: reading the
document in English and translating it into Russian to ensure clarity.” Id. at 50-51.
According to Respondent’s counsel, Petitioner
speculates that the translation may have been unreliable
because no certified translator was named, but that
objection is both speculative and strategically
manufactured. If [Petitioner] had any real concern, they
had every opportunity to ask simple follow-up questions
during cross-examination. They did not. Instead, they now

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attempt to exploit ambiguity that they themselves left
unaddressed. That is not a basis for striking sworn
testimony, but an admission of a poor cross-examination
strategy.
Id. at 51.
Respondent’s counsel dismisses Mr. Novikov’s testimony that he understands
English at a “very low level” as “vague and subjective,” id., arguing that
[w]hat the record clearly shows is that despite any self-
deprecating language barrier, Mr. Novikov was able to
read his English-language declaration, review its contents,
and confirm under oath: “I read it. I understood it.” That
affirmative statement speaks louder than a general
characterization of language skill. It shows that whatever
“very low level” may mean in conversation, it did not
impair his ability to comprehend and affirm the document
at issue in this proceeding.
Id.17
Respondent’s counsel concludes that
[t]he Board does not require declarations to be submitted
in the declarant’s native language, nor does it demand a
certified translator unless specific authentication is at
issue. Novikov’s declaration, like countless others from
non-native speakers, was made in English with a
statement of understanding. That satisfies the
requirements. [Petitioner’s] position would effectively bar
every non-native English speaker from participating in
TTAB proceedings unless they hired a court-certified
translator for every document, a result the Board has never
mandated and would never support. In the end,
[Petitioner’s] objections are not about accuracy, they are
about legal strategy. [Petitioner] had a chance to explore
these issues and declined. They now ask the Board to fill in
17 Respondent’s counsel also argues that Respondent personally curated English-language
materials submitted under Respondent’s Notice of Reliance. 125 TTABVUE 51. There is no
evidence of any such involvement on the part of Respondent, and it is far more likely that
consistent with standard practice, the exhibits to the Notice of Reliance were selected and
prepared by Respondent’s counsel.

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the blanks with speculation. But the record is clear:
Novikov understood his declaration, affirmed it under
oath, and answered every question posed to him.
[Petitioner’s] objections should be overruled in their
entirety.
Id. at 52.
In its reply brief, Petitioner argues that it requested Respondent’s exclusion from
portions of Petitioner’s CEO’s deposition testimony because only counsel of record
were allowed to hear commercially sensitive testimony, 126 TTABVUE 28, that
Petitioner was precluded from asking follow-up questions regarding Respondent’s
competence in English because Respondent’s cross-examination was conducted on
written questions pursuant to the parties’ stipulation,18 id., and that Respondent’s
counsel, not Respondent, prepared and filed his Notice of Reliance. Id. at 28-29.
Petitioner concludes that Respondent “testified that he had a ‘very low – low level’ of
English and that he had his declaration ‘translated’ when he signed it” and that
“[w]ithout evidence of who made that translation and its accuracy, the Novikov
Declaration is unreliable and should be stricken in its entirety.” Id. at 29.
The parties did not cite any cases in support of their respective positions on the
issue of Respondent’s ability to testify in English, but ARSA Distrib., Inc v. Salud
Nat. Mexicana S.A. de C.V., Opp. No. 91240240, 2022 WL 4592443 (TTAB 2022), rev’d
on other grounds, No. 1:22cv1367 (E.D. Va. Apr. 16, 2024), is instructive. In that case,
the applicant sought to exclude the trial declaration of one of the opposer’s witnesses
on the ground that the witness was “a Spanish speaker and the trial declaration that
18 Novikov Cross Tr. 8:2-12 (118 TTABVUE 10).

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she signed was completely in English [so] she is not competent to know what she was
signing in the trial declaration and if those statements and the evidence associated
with them were true.” ARSA, 2022 WL 4592443, at *1. The applicant also noted that
the witness required a translator for her discovery deposition. Id.
The Board found that the “record supports that Ms. Arras is not an English
speaker” and that “Opposer concedes [that] a certified and signed translation should
have been, but ‘was inadvertently not[,] filed with Arsa’s Notice of Reliance.’” Id. at
*2 (citing Empresa Cubana Del Tabaco v. Gen. Cigar Co., Canc. No. 92025859, 2019
WL 2511906, at *1 n.1 (TTAB 2019) (noting that the petitioner in that case provided
testimony declarations with translations from Spanish to English)). The Board
sustained the applicant’s objection and struck the declaration, as well as any exhibits
thereto that were not otherwise admissible under a notice of reliance.
Like the witness in ARSA, Respondent is not an English speaker, and, by his own
admission, understands English only “at a very low – low level.” He required a
translator at his cross-examination deposition “[i]n order to have a full understanding
of the questions asked of me,” Novikov Cross Tr. 14:23-15:6 (118 TTABVUE 16-17),
even though he and his counsel received all of the questions in writing in advance.
As noted above, Respondent testified that he had the English-language Novikov
Declaration translated into Russian and that “I read it. I understood it.” Novikov
Cross Tr. 43:20-44:3 (118 TTABVUE 45-46). There is nothing to suggest that the

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Novikov Declaration was prepared by Respondent rather than by his counsel,19 and
given Respondent’s admission of very limited ability to understand English, his
testimony that “I read it. I understood it” can only reasonably be understood to refer
to the claimed Russian translation of the Declaration, not the original English draft.
Respondent’s testimony regarding his limited English skills belies his counsel’s
argument that Respondent “reviewed the declaration in English, understood it, and
additionally relied on translation to confirm his understanding,” doing “double the
work: reading the document in English and translating it into Russian to ensure
clarity.” 125 TTABVUE 50-51. We find that rather than “reading the document in
English,” it is far more likely that Respondent reviewed the claimed Russian-
language translation of the document, which is nowhere in the record.
We agree with Petitioner that we have no idea what the claimed translation said
or who prepared it, and that the proper practice “would have been for Mr. Novikov to
sign a declaration in Russian, have the signed Russian declaration translated into
English by a qualified translator, and submit the English translation introduced into
evidence under oath by the translator with the Russian original.” 123 TTABVUE 59
n.2. See Empresa Cubana, 2019 WL 2511906, at *1 n.1. The purpose of requiring a
neutral third party to translate witness testimony in a foreign language into English
is to ensure that the translation is accurate, but we have no such assurances here. In
19 It is no secret that declarations of lay witnesses are routinely prepared by counsel rather
than by the witnesses themselves. There is nothing improper about this practice if the
declarants read, understand, and adopt the testimony in their declarations, and attest to it
under oath.

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the absence of a Russian translation of the Novikov Declaration, his testimony in the
English-language version of the Novikov Declaration fails to show that he has
personal knowledge of its contents, as required under Rule 602 of the Federal Rules
of Evidence, or that he can properly authenticate the exhibits thereto, as required
under Rule 901 of the Federal Rules of Evidence. We sustain Petitioner’s objection to
the Novikov Declaration and strike it from the record in its entirety.
In ARSA, the Board also struck the exhibits attached to the subject declaration to
the extent that they were not otherwise admissible under a notice of reliance, and
considered those that “would have been admissible under a notice of reliance. . . .”
ARSA, 2022 WL 4592443, at *2.20 As noted above, neither party discusses ARSA,
including whether the exhibits to the Novikov Declaration would be admissible under
a notice of reliance, but instead discuss other issues going to the admissibility of the
exhibits. Consistent with ARSA, we will focus on whether each exhibit is self-
authenticating for purposes of possible submission under a notice of reliance because
we have found that Mr. Novikov, the sponsoring witness, cannot authenticate them.
Exhibit 1
Exhibit 1 to the Novikov Declaration contains copies of English-language and
foreign-language certificates of registration of the marks RAFT, RAFT SURVIVAL:
DESERT NOMAD, and RAFT SURVIVAL: OCEAN NOMAD in various foreign
20 As a general matter, “[t]he categories of materials that may be submitted under a notice of
reliance are quite limited,” Hiraga v. Arena, Canc. No. 92047976, 2009 WL 723334, at *2
(TTAB 2009), and are currently set forth in Trademark Rules 2.122(d)(2), (e)(1), (e)(2), and
(g), and Trademark Rule 2.120(k), 37 C.F.R. §§ 2.122(d)(2), (e)(1), (e)(2), and (g), and 2.120(k).

Cancellation No. 92075698
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countries. Novikov Decl. ¶ 15; Ex. 1 (106 TTABVUE 4, 6-106). We agree with
Petitioner that “Exhibit 1 to the Declaration itself is a mess” because it “appears to
contain duplicate copies of some of the same registrations (e.g., 106 TTABVUE 11 &
75)” and “translations of at least some of the registrations that are in a foreign
language, but . . . are not matched with one another,” 123 TTABVUE 60 (emphasis
supplied by Petitioner), but we also agree with Respondent that “the certificates
themselves are self-authenticating,” 125 TTABVUE 53, because foreign registrations
are “official records” within the meaning of Trademark Rule 2.122(e), and thus may
be submitted under a notice of reliance. See TBMP Section 704.03(b)(1)(A) (“A foreign
registration owned by a party to a Board inter partes proceeding may be made of
record in the same manner as a state registration, but a foreign registration is not
evidence of the use, registrability, or ownership of the subject mark in the United
States.”) (June 2025). Accordingly, we overrule Petitioner’s objection to Exhibit 1 and
will not strike the foreign registrations. We note, however, that they have no
probative value regarding the continued registrability of Respondent’s mark. Cf.
Sabhnani v. Mirage Brands, LLC, Canc. No. 92068086, 2021 WL 6072822, at *4
(TTAB 2021) (“Petitioner’s foreign registrations are ‘immaterial to [his] right to
register the mark in the United States,’ or to challenge Respondent’s registrations of
its marks”) (citing Bureau National Interprofessionel Du Cognac v. Int’l Better Drinks
Corp., Opp. No. 72088, 1988 WL 252488, at *10 (TTAB 1988) (“[A]n applicant’s
ownership of a foreign registration of its mark is immaterial to [the] applicant’s right
to register the mark in the United States; similarly, an opposer’s right to object to the

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registration of a mark in the United States is independent of whatever foreign
trademark rights the parties may have.”)).
Exhibit 2
Exhibit 2 purports to be “copies of extracts in connection with the downloads,
marketing campaign and unsolicited emails [Respondent] received shortly after
launching the game.” Novikov Decl. ¶ 16; Ex. (106 TTABVUE 4, 107-91). Business
records and business correspondence of this sort are not “official records” or “printed
publications” within the meaning of Trademark Rule 2.122(e). See, e.g., Rsch. in
Motion Ltd. v. NBOR Corp., Opp. No. 91179284, 2009 WL 4694941, at *3 (TTAB 2009)
(“The term ‘official records’ as used in Trademark Rule 2.122(e) refers not to a party’s
company business records, but rather to the records of public offices or agencies, or
records kept in the performance of duty by a public officer.”); Hiraga, 2009 WL
723334, at *2-3 (business records are not “printed publications” within the meaning
of Trademark Rule 2.122(e)). We strike Exhibit 2 from the record.
Exhibit 321
Exhibit 3 purports to be an English-language translation of what Respondent
describes as “the Resolution of the Eighth Arbitration Court Of Appeals of Russian
Federation of January 12, 2023 in case No. A70-6606/2021.” Novikov Decl. ¶ 17; Ex.
3 (106 TTABVUE 4, 192-202). Exhibit 3 appears to be some sort of decision by a
Russian court, although Respondent provides no explanation of it and we cannot
glean its significance from Exhibit 3 itself. The exact source of Exhibit 3 is unclear,
21 The parties do not discuss Exhibit 3.

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but it is clear that it did not come from the files of the Russian court because the
court’s ruling was obviously in Russian, not English. We find that Exhibit 3 is not an
“official record” within the meaning of Trademark Rule 2.122(e), and we strike it from
the record.
Petitioner’s Objections to Certain Statements in the Lazouski
Declaration
Petitioner objects to certain statements in paragraph 2 of the Lazouski
Declaration on the ground that “[i]n each ‘bullet’ of Paragraph 2 of the Declaration,
Mr. Lazouski makes several statements about alleged facts of the case, what certain
documents allegedly show, and how such documents are allegedly relevant to the
issues of this case.” 123 TTABVUE 63. Petitioner argues that these “statements about
alleged ‘facts’ about Petitioner’s RAFT game, what the specified documents allegedly
show, and how such documents are allegedly relevant made by Mr. Lazouski in his
declaration do not constitute evidence” because “Mr. Lazouski is Registrant’s
counsel” and “has no personal knowledge of any of these alleged ‘facts’ about
Petitioner’s RAFT game or Registrant’s RAFT game.” Id. at 64 (emphasis supplied by
Petitioner).22
Respondent responds that Petitioner’s objection is “not only meritless but borders
on procedural gamesmanship.” 125 TTABVUE 55. Respondent argues that the Board
rejected similar objections in denying Petitioner’s cross-motion for summary
judgment, id. (citing 49 TTABVUE 7-9), and that the Board “already held that Mr.
22 In its reply brief, Petitioner argues that the objected-to statements “belong in a legal brief
– not in a declaration.” 126 TTABVUE 30.

Cancellation No. 92075698
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Lazouski’s exhibits—such as online articles and screenshots—are admissible for
what they show on their face, and that Mr. Lazouski is qualified to authenticate them
based on personal access and firsthand knowledge.” Id. at 56. Respondent concludes
that the Lazouski Declaration “is properly submitted, factually grounded, and
already deemed admissible by this Board based on its prior ruling.” Id.
As discussed above, we are “capable of assessing the proper evidentiary weight to
be accorded the testimony and evidence, taking into account the imperfections
surrounding the admissibility of such testimony and evidence,” Peterson, 2020 WL
7888976, at *4, and we overrule Petitioner’s objections based on the argumentative
nature of the testimony in paragraph 2 of the Lazouski Declaration. We will, of
course, make an independent judgment regarding the relevance and probative value
(if any) of the referenced exhibits.
Petitioner’s Hearsay Objections to Certain Exhibits to the Lazouski
Declaration
Petitioner objects to Exhibit 1 to the Lazouski Declaration, which he describes as
“extracts from various websites and online publications,” Lazouski Decl. ¶ 2 (107
TTABVUE 2), and Exhibits F-G, which he describes respectively as a “true and
correct copy of an online article discussing differences between software ‘prototype’
and ‘beta’,” Lazouski Decl. ¶ 12 (107 TTABVUE 4), and “true and correct copies of an
[sic] online articles in connection with software prototype and prototyping process,”
Lazouski Decl. ¶ 13 (107 TTABVUE 4), on the grounds that “these articles are
statements by a third party and constitute hearsay,” 123 TTABVUE 65, and that Mr.
Lazouski is incompetent to testify to the contents of these materials. Id. According to

Cancellation No. 92075698
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Petitioner, “Exhibits F and G and the documents identified above in Exhibit 1 to the
Lazouski Declaration are inadmissible hearsay, cannot be used to prove the truth of
their contents, and should be excluded from evidence.” Id. at 67.
Respondent responds that
TBMP 704.08(b) and many TTAB precedents, including
Safer, Inc. v. OMS Investments, Inc., [Opp. No. 91176445,
2010 WL 985355] (TTAB 2010), permits [sic] the
introduction of internet-based evidence with proper source
identification. Mr. Lazouski accessed the exhibits himself,
translated them himself where necessary, and provided a
sworn declaration explaining his role in each step. This is
precisely what TBMP requires.
125 TTABVUE 56.
In its reply brief, Petitioner argues that
[t]he articles at issue are admissible for what they show
on their face – that on certain dates, some third parties
wrote articles and said certain things about prototypes,
software development, itch.io, or Stranded Deep. However,
as the Board noted in its May 31, 2022 Order, “We do not
consider the materials for the truth of any matter asserted
therein. [. . . ] The materials are competent evidence of
exposure of their content to the public and we consider
them only to that extent.”
As shown by Registrant’s Brief, Registrant is not using
these articles to show that the public was exposed at
certain times to these statements about prototypes,
software development, itch.io, or Stranded Deep. Instead,
Registrant is relying on these articles to try to prove
certain facts about prototypes, software development,
itch.io, and Stranded Deep. For example, Registrant relies
upon several of the articles at issue to prove that the
gaming industry operates in a certain way and that
Petitioner’s launch of its RAFT game was not “typical” of
the way the industry operates. 125 TTABVUE 35-36 & n.3.
These articles are the only evidence introduced by
Registrant about software development and the gaming

Cancellation No. 92075698
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industry. Because they are hearsay, they are not
admissible for this purpose.
126 TTABVUE 30 (emphasis supplied by Petitioner).
We agree with Petitioner. In the absence of testimony regarding the substance of
Internet materials submitted through a sponsoring witness with personal knowledge
of the contents of the materials, the Board considers such materials only for what is
shown on their faces, not for the truth of their contents. Sawstop, LLC v. Felder KG,
Opp. No. 91255905, 2025 WL 2400134, at *9 n.44 (TTAB 2025); Spiritline Cruises
LLC v. Tour Mgmt. Servs., Inc., Opp. No. 91224000, 2020 WL 636467, at *4 (TTAB
2020); WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., Opp. No.
91221553, 2018 WL 1326374, at *6 n. 18 (TTAB 2018). This limitation applies to all
Internet materials “whether there is an objection or not.” Id. We will not consider
Exhibits 1 and F-G to the Lazouski Declaration for the truth of their contents.23
II. Factual Background
As noted above, this case involves dueling claimants to the RAFT mark for
computer games in the United States. Although the parties raise some other issues
that we discuss below, at bottom “[t]his is a priority dispute.” JNF LLC v. Harwood
Int’l Inc., Canc. No. 92070634, 2022 WL 4379238, at *1 (TTAB 2022).
23 Respondent also objects to videos submitted through the Bengtsson Rebuttal Declaration
that are referred to and shown in screenshots in the Antoniszczak Declaration filed in
Petitioner’s case-in-chief, to which Respondent does not object, Antoniszczak Declaration
¶¶ 31-35; Exs. 10-12 (75 TTABVUE 8-9, 66-81), on the ground that the videos themselves are
improper rebuttal evidence, 125 TTABVUE 57-59, and to certain testimony in the Laine
Declaration on hearsay grounds. Id. at 60-61. We need not address these objections because
we need not rely on the specific challenged evidence to decide this case. Flame & Wax, Inc. v.
Laguna Candles, LLC, Canc. No. 92072343, 2022 WL 3083070, at *7 (TTAB 2022).

Cancellation No. 92075698
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The parties agree that the critical date in that dispute is April 28, 2017, the date
on which Respondent’s RAFT game was published on the Google Play Store and made
available to consumers in the United States. 123 TTABVUE 32 (“There is no dispute
as to when Registrant first used the RAFT mark – April 28, 2017”) (emphasis supplied
by Petitioner); 125 TTABVUE 6 n.1 (noting that “Petitioner does not dispute that
Registrant first used the RAFT mark in commerce on April 28, 2017” and that “this
date is thus properly treated as a stipulated fact in this proceeding”). Accordingly,
under the law regarding priority discussed below, Petitioner must prove that its
claimed RAFT mark was “previously used in the United States” in some manner that
created cognizable rights in the mark in the United States before April 28, 2017. JNF,
2022 WL 4379238, at *3.
In this section, we set forth in detail the facts relevant to Petitioner’s claim that it
had developed cognizable rights in the RAFT mark in the United States prior to April
28, 2017, including through activities that began before that date and continued after
it. Very few of these facts are actually disputed by Respondent.24
24 As discussed below, Respondent devotes most of his arguments to the legal significance of
the facts, characterizing Petitioner’s activities as “pre-commercial hype—a scattered mix of
blog posts, sporadic social media mentions, and uploads of an early-stage prototype game to
Itch.io, a platform better known for experimental releases than formal product launches.”
125 TTABVUE 5. Respondent argues that Petitioner “made no serious effort to commercialize
the game, protect the mark, or establish a marketplace presence before Registrant’s priority
date. At best, its efforts amounted to student-level development activity paired with attempts
to generate buzz. But ‘buzz’ is not use.” Id. We will include a number of Respondent’s specific
critiques of Petitioner’s evidence in footnotes in our discussion of that evidence below.

Cancellation No. 92075698
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The Developers of Petitioner’s RAFT Computer Game
In the fall of 2014, André Bengtsson entered Uppsala University in Gotland,
Sweden to pursue a Bachelor’s degree in game design and graphics. Bengtsson Decl.
¶ 3 (67 TTABVUE 3). He soon met fellow students Ellen Mellåker and Semih
Parlayan, who were enrolled in the same degree program. Bengtsson Decl. ¶ 4 (67
TTABVUE 3).
In early 2015, Mr. Bengtsson, Mr. Parlayan, and a few other classmates began
developing a computer game called “Frog Climbers” as their First Year Project and
the game was ultimately released in October 2016 on Steam, a platform on which
game developers can upload their games for gamers to download and play. Bengtsson
Decl. ¶¶ 5-17; Exs. 47-56 (67 TTABVUE 3-6, 31-60). Prior to its release, the Frog
Climbers game was shown in a trailer on YouTube, Bengtsson Decl. ¶ 6; Ex. 47 (67
TTABVUE 3-4, 31-34), and on pages on Facebook (now Meta) and Twitter (now X),
Bengtsson Decl. ¶¶ 7, 11; Exs. 48, 51 (67 TTABVUE 4, 35-36, 41-42), and won several
awards. Bengtsson Decl. ¶¶ 9-10; Exs. 49-50 (67 TTABVUE 4, 37-40).
In the fall of 2015, Mr. Bengtsson, Mr. Parlayan, and a few other classmates began
developing a computer game called “Anchored” as their Second Year Project.
Bengtsson Decl. ¶ 19 (67 TTABVUE 6). The Anchored game was ultimately released
on January 15, 2017 on itch.io, a platform for independent or “indie” game developers
to release their games. Bengtsson Decl. ¶¶ 20-25; Exs. 57-61 (67 TTABVUE 6-7, 61-
86). Prior to its release, the Anchored game was shown in a trailer on YouTube,
Bengtsson Decl. ¶ 21; Ex. 58 (67 TTABVUE 6, 63-66), and on a Facebook page,

Cancellation No. 92075698
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Bengtsson Decl. ¶ 20; Ex. 57 (67 TTABVUE 6, 61-62), and won awards. Bengtsson
Decl. ¶ 22; Ex. 59 (67 TTABVUE 6, 67-68).
Initial Development of the RAFT Game
In the fall of 2016, Mr. Bengtsson, Mr. Parlayan, and Ms. Mellåker (collectively
the “Developers”) began developing a survival game for a game development and
marketing course that they were taking. Bengtsson Decl. ¶ 27 (67 TTABVUE 7).25
The purpose of the course was to create a game product for a target audience and to
market the game to that audience. Bengtsson Decl. ¶ 27 (67 TTABVUE 7). The
Developers selected the name “Raft” for their game shortly after they began its
development. Bengtsson Decl. ¶ 28 (67 TTABVUE 7). They were unaware at the time
of any other “Raft” games on the market. Bengtsson Decl. ¶ 28 (67 TTABVUE 7).
The Developers’ Development Blog and the Initial Releases of the RAFT
Game for Downloading
The Developers created a “development blog” for the RAFT game in October 2016
on blog.raft-game.com, and began publishing entries regarding the game on October
13, 2016. Bengtsson Decl. ¶¶ 29-30; Exs. 62-63 (67 TTABVUE 7-8, 87-97). The
purpose of the blog was to raise awareness of the game, market it, and attract players.
Bengtsson Tr. 15:3-10 (93 TTABVUE 7). During the fall of 2016, Mr. Bengtsson was
personally responsible for writing and publishing blog entries. Bengtsson Tr. 15:11-
17 (93 TTABVUE 7).
25 Mr. Bengtsson believed that the course was called “something like Game Design in
Practice.” Bengtsson Tr. 16:13-23 (93 TTABVUE 7).

Cancellation No. 92075698
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The Developers’ first blog entry, which we reproduce below, all of their subsequent
entries, many of which we reproduce below, and most of the responses to the
Developers’ entries, are in English.26 We reproduce below a portion of the Developers’
first blog entry:
26 The unsolicited media coverage of the RAFT game discussed below is also in English. As
discussed below, when the Developers made prototypes of the RAFT game available for
downloading though the Itch.io platform, the largest group of gamers downloading the game
was reported to consist of Americans.

Cancellation No. 92075698
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Bengtsson Decl. Ex. 62 (67 TTABVUE 88).27 The Developers referred to themselves
on their blog as “Redbeet Interactive,” and, as shown below, continued to do so up to
and after the formation of their company Redbeet Interactive AB in February 2017.28
Four days later, the Developers published their second blog entry and made a first
prototype of the RAFT game available to the general public for downloading.
Bengtsson Decl. ¶ 30; Ex. 63 (67 TTABVUE 8, 93-94). We reproduce that entry below:
27 Respondent focuses on the introductory language “[w]e are a group of three people who
have just started development on a survival game where the player is stranded on a raft in
the middle of the ocean.” 125 TTABVUE 9. Respondent argues that “[l]ater that day, they
further clarified their initial vision by declaring, ‘the long term goal for the player is to expand
the raft and craft items that will help them survive. Exactly how this is done is still not
decided and we want a community of testers to help us with developing this game!’.” Id. at 9-
10. According to Respondent, “[t]his remark makes clear that, at this point, RAFT was little
more than a concept. The developers had not yet settled on core mechanics and were relying
heavily on outside feedback and ‘testers’ to figure out what the game might eventually
become.” Id. at 10.
28 In his brief, Respondent also repeatedly refers to the Developers as “Redbeet” or “Redbeet
Interactive” prior to the formation of their company. 125 TTABVUE 10-13.

Cancellation No. 92075698
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Bengtsson Decl. Ex. 63 (67 TTABVUE 94). The purpose of the release was primarily
to test the concept and viability of the game, and to gather feedback from users or
potential users. Bengtsson Tr. 19:2-8 (93 TTABVUE 8). Although the first RAFT
game in October 2016 was a prototype, it was a playable and functioning computer
game, Bengtsson Decl. ¶ 30 (67 TTABVUE 8), and it was available for downloading
through Google Drive or Dropbox by anyone with Internet access. Bengtsson Tr.
19:17-20 (93 TTABVUE 8). As Mr. Bengtsson put it, the RAFT game was “developed
enough to be released to the general public.” Bengtsson Tr. 62:22-23 (93 TTABVUE
19).29
A second prototype was released on October 27, 2016. Bengtsson Tr. 21:11-22:10
(93 TTABVUE 8-9). The purpose of its release was to get more players to play the
game and to get more feedback. Bengtsson Tr. 23:6-22 (93 TTABVUE 8). Mr.
Bengtsson did not consider the second prototype to be a finished game. Bengtsson Tr.
23:9-11 (93 TTABVUE 8).30
The Developers made another new prototype of the RAFT game available for
downloading on their blog in November 2016 and promoted its availability on their
social media pages. Bengtsson Decl. ¶ 36; Ex. 67 (67 TTABVUE 9, 104-05). The
29 Respondent argues that “[o]n the same day, they added, ‘Raft (working title) is a survival
game where the player is stuck on a raft in the middle of the ocean.’ . . . . By explicitly labeling
‘RAFT’ as a working title, the team made it clear that the product was in its embryonic stage
designed solely for testing out the concept. A survey was also provided alongside a download
link, asking, ‘Based on the prototype and description of the game, is this something you would
be interested in?’.” 125 TTABVUE 10.
30 Respondent argues that “[t]he prototype was distributed via a Google Drive link—an
informal and non-commercial method of sharing—further underscoring that the build was a
rough, experimental version intended solely for community testing and input.” Id.

Cancellation No. 92075698
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purpose of releasing this prototype was again to draw attention to the game, attract
new players, and get feedback. Bengtsson Tr. 25:21-26:1 (93 TTABVUE 9-10). Mr.
Bengtsson did not consider this prototype to be a finished game. Bengtsson Tr. 26:2-
5 (93 TTABVUE 10).31
On December 5, 2016, the Developers posted an entry on their blog that contained
the following text:
Since the last blog post we have look [sic] at how much we
can do with the game within our time frame. Since we are
students, in a couple of weeks we will have new courses
that will allocate a lot of our time, which means we will not
have enough time to work on the game. Therefore we
decided to not add any new features into the prototype for
now. Instead we have focused to polish the features we
have and make the game as playable as possible. Our goal
is to give you, the player, a sense of what the game could
be like if we were to, at some point, continue production
and make it a finished product.
Our current plan is to release the last prototype for this
production period late next week. We will also send out
feedback forms, as we have done previously. With the
feedback, we hope to be able to see if continuing production
of the game is something that the community wants. So if
you want this to be continued upon, please tell us!
Bengtsson Decl. ¶ 37; Ex. 68 (67 TTABVUE 9-10, 106-11). This post also told gamers
what to expect from the upcoming prototype. Bengtsson Decl. Ex. 68 (67 TTABVUE
107). Mr. Bengtsson did not consider the game to be finished at this point. Bengtsson
Tr. 28:9-12 (93 TTABVUE 10).32
31 Respondent notes that in November 2016, Petitioner referred to the game as a “prototype”
and to persons playing it as “testers.” Id. at 10-11.
32 Respondent describes this post as “an even more candid look at where things stood with
RAFT, and it was not anywhere near commercial readiness,” id. at 11, and focuses on the

Cancellation No. 92075698
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The Release of the RAFT Game on the Itch.io Platform
On December 14, 2016, the Developers announced on Instagram that they were
about to release the RAFT game on the itch.io platform. Bengtsson Decl. ¶ 40; Ex. 70
(67 TTABVUE 10, 113-14). Mr. Bengtsson described the itch.io platform as follows:
Itch.io is a platform for indie developers to release their
games. Itch.io does not charge a fee for a developer to
release a game on their platform, and developers can
decide how much they want to charge users to download a
game. Developers can also offer a game on itch.io for
download for free. Anyone with Internet access can
download a game that has been released on itch.io.
Bengtsson Decl. ¶ 24 (67 TTABVUE 7).33 In their December 14, 2016 announcement,
the Developers stated that “[t]he final version of this game will be available for free,
on itch.io this Friday,” and requested feedback. Bengtsson Ex. 70 (67 TTABVUE 114).
Mr. Bengtsson acknowledged that at this point
we did not have any real plans to further develop the RAFT
game, but instead intended to concentrate on our course
work to get our degrees from University. We simply
planned to release the RAFT game “as is” to the public, as
we had done with our FROGCLIMBERS and ANCHORED
games, for the public to enjoy and review the feedback that
language in the text that the Developers intended to make the existing version of the game
“as playable as possible.” Id. Respondent argues that the post “was not framed as a step
toward release,” id., and that the Developers “were counting on the community not just for
playtesting, but for deciding whether the game should move forward at all.” Id.
33 Kacper Antoniszczak, a former editor of several computer game publications and the CEO
of Axolot Games AB (“Axolot”), which publishes Petitioner’s RAFT game, Antoniszczak Decl.
¶¶ 3-4 (75 TTABVUE 3), testified that it is “[i]t is common practice for an indie developer to
release a game that is in development on itch.io.” Antoniszczak Decl. ¶ 29 (75 TTABVUE 7).
Respondent stated in his brief that “Itch.io is widely recognized as a platform that supports
independent developers in sharing early-stage or experimental projects. Its flexible structure
and community-driven approach make it an ideal environment for testing game concepts and
engaging with players during the development process.” 125 TTABVUE 11.

Cancellation No. 92075698
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we would get to determine whether further development
was warranted.
Bengtsson Decl. ¶ 41 (67 TTABVUE 10).
The Developers released the game on itch.io on December 16, 2016. Bengtsson
Decl. ¶ 42; Ex. 71 (67 TTABVUE 10, 115-18). We reproduce below a portion of the
Developers’ announcement of the release on their blog:

Cancellation No. 92075698
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Bengtsson Decl. Ex. 71 (67 TTABVUE 116).34 The Developers also promoted the
release on their social media pages, including in a trailer on YouTube. Bengtsson
Decl. ¶ 44; Exs. 72-74 (67 TTABVUE 11, 119-28); Bengtsson Tr. 30:18-31:14 (93
TTABVUE 11). Mr. Bengtsson did not consider the game that was launched on itch.io
to be a finished one, but it was functional and fully playable. Bengtsson Tr. 29:16-21
(93 TTABVUE 10).35
The purpose of publishing the prototype on itch.io was to attract more players, to
test the commercial viability of the game, and to get more feedback from players.
Bengtsson Tr. 29:12-15 (93 TTABVUE 10). As Mr. Bengtsson put it, “by launching on
Itch, we wanted to see if there was a market and if there was a -- an interest from the
players for a -- for a paid version of the game or a larger version of the game.”
Bengtsson Tr. 49:21-25 (93 TTABVUE 15). He testified that “[i]t is quite common in
indie development to use this method to make sure that you don’t put a lot of time
and money to producing something that no one wants,” and that “by doing the Itch
version, we quickly realized this is something people would pay money for and would
like more of.” Bengtsson Tr. 50:1-6 (93 TTABVUE 16).
34 In October 2016, the Developers adopted the composite RAFT word-and-design mark
shown in this blog post. Bengtsson Decl. ¶ 33 (67 TTABVUE 8-9).
35 Respondent cites a June 9, 2017 blog entry in which Respondent claims “Redbeet did not
sugarcoat the state of their early release. Reflecting on the first version they uploaded to
Itch.io, they admitted, ‘ . . . when we first made the prototype available on Itch, the UI was
kind of thrown together in a haste . . .’” 125 TTABVUE 13.

Cancellation No. 92075698
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The Response to the Release of the RAFT Game on Itch.io
Mr. Bengtsson testified about the response to the Developers’ release of the RAFT
game on itch.io as follows:
The response that our RAFT game received from the itch.io
release was beyond anything we could have imagined.
Within days, more than 100,000 people had downloaded
the RAFT game. During December 2016 and January 2017,
popular YouTube game influencers posted videos on
YouTube of themselves playing the RAFT game. It was
insane.
Bengtsson Decl. ¶ 45 (67 TTABVUE 11). Mr. Bengtsson testified that the Developers
“quickly realized this is something people would pay money for and would like more
of.” Bengtsson Tr. 50:4-6 (93 TTABVUE 16).
The Developers’ belief appears to have been well-founded. By the end of December
2016, the RAFT game was being downloaded from itch.io more than 100,000 times
per day. Bengtsson Decl. ¶ 46; Ex. 75 (67 TTABVUE 11; 69 TTABVUE 129-30). As of
December 19, 2016, the RAFT game was a Top 3 game on itch.io, Bengtsson Decl.
¶ 47; Ex. 76 (67 TTABVUE 11, 130-32), and a few days later, the game was the most
popular one on itch.io. Bengtsson Decl. ¶ 48 (67 TTABVUE 11).
On December 23, 2016, the Developers released a new updated prototype on itch.io
that fixed some bugs and added a “Save Support” feature, which allowed a user to
save their progress when playing a game across different sessions. Bengtsson Decl.
¶ 49 (67 TTABVUE 12). The Developers also activated a “Name Your Own Price”
option, which allowed gamers to make a donation when they downloaded the game to
help support its further development. Bengtsson Decl. ¶ 49; Ex. 78 (67 TTABVUE 12,

Cancellation No. 92075698
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139-43).36 The Developers stated in their listing on itch.io that “Raft is currently in
very early production. This is a prototype which purpose is to show the player what
the game could be. If this is a game you would like to see being finished, please tell
us so in this form!”37
On December 31, 2016, the Developers set up a community forum on itch.io with
their listing for the RAFT game through which users could make suggestions for the
game, provide screen shots and videos of themselves playing the game, notify the
Developers of bugs, and post topics relating to the game for discussion. Bengtsson
Decl. ¶ 84 (67 TTABVUE 18). Between December 31, 2016 and April 17, 2017, gamers
posted hundreds of topics on the RAFT forum. Bengtsson Decl. ¶ 84; Ex. 106 (67
TTABVUE 18-19, 241-73).
On January 7, 2017, the Developers posted the blog entry shown below:
36 Mr. Bengtsson testified that about 25,000 gamers donated more than $60,000 to the future
development of the RAFT game. Bengtsson Decl. ¶ 78 (69 TTABVUE 17).
37 Mr. Bengtsson testified that during the fall of 2016, the Developers received suggestions
for the RAFT game from gamers on the feedback forms, which the Developers were required
to destroy under European privacy laws. Bengtsson Decl. ¶ 38 (67 TTABVUE 10).

Cancellation No. 92075698
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Bengtsson Decl. ¶ 52; Ex. 81 (67 TTABVUE 12-13, 154).38
38 Respondent quotes a January 5, 2017 blog entry in which the Developers again stated that
RAFT “is currently in very early production. This is a prototype which purpose is
to show the player what the game could be. If this is a game you would like to see
being finished, please tell us in this form!.” Respondent argues that this “reflects
Redbeet’s own public characterization of RAFT at the time as a prototype in early
development, intended to gauge player interest to show ‘what the game could be’.” 125
TTABVUE 12 (emphasis in bold here in italics in the original). Respondent also notes that
the post instructed gamers to save games because “RAFT lacked backward compatibility
between versions, suggesting that the game was still undergoing substantial structural
changes typical of early-stage development rather than stable commercial release.” Id.

Cancellation No. 92075698
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Initial Media Coverage of the RAFT Game
The RAFT game was featured in January 2017 in the Hinterland Forums and the
rockpapershotgun.com website. Bengtsson Decl. ¶¶ 53-54; Exs. 82-83 (67 TTABVUE
13, 160-70). The Hinterland Forums website entry contained what appears to be a
link to a YouTube video regarding the game. Bengtsson Decl. Ex. 82 (67 TTABVUE
162). The rockpapershotgun.com website displayed the following:
Bengtsson Decl. Ex. 83 (67 TTABVUE 167).

Cancellation No. 92075698
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Axolot’s Interest in the RAFT Game
Axolot’s CEO Mr. Antoniszczak testified that in January 2017, he “became
familiar with the game RAFT, which had been released on the itch.io platform by a
group of students at Upland [sic] University in Gotland, Sweden.” Antoniszczak Decl.
¶ 27 (75 TTABVUE 7). He “downloaded the game from itch.io in early 2017 and
played the game multiple times,” and “[a]lthough I understood that the RAFT game
was a prototype at that time, it was a playable and functional game in early 2017
that I enjoyed playing.” Antoniszczak Decl. ¶ 27 (75 TTABVUE 7).
Mr. Antoniszczak testified that as best he could recall, he “first learned about the
RAFT game in January 2017 from YouTube.” Antoniszczak Decl. ¶ 31 (75 TTABVUE
8). He explained that “[t]here are game influencers on YouTube who record
themselves playing games and post those videos on YouTube. Some of these
influencers have millions of followers, so that a positive review from one of them can
turn a new game into an overnight sensation,” and he explained that he had “played
several games that became popular immediately after game influencers posted videos
of themselves playing the games on YouTube.” Antoniszczak Decl. ¶ 31 (75
TTABVUE 8).
Mr. Antoniszczak identified three such influencers who had played and reviewed
the RAFT game, “Jacksepticeye,” “Markiplier,” and “Blitz.” Antoniszczak Decl. ¶¶ 32-
35; Exs. 9-12 (75 TTABVUE 8-9, 55-81).39 On December 23, 2016, the influencer
39 In his brief, Respondent described these influencers as “well-known creators.” 125
TTABVUE 57.

Cancellation No. 92075698
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named “Blitz” posted on YouTube a 27-minute video of himself playing the RAFT
game. Antoniszczak Decl. ¶ 35; Ex. 12 (75 TTABVUE 9, 76-81). The YouTube page
stated that the video had more than 1,000,000 views. Antoniszczak Decl. Ex. 12 (75
TTABVUE 81).
Mr. Antoniszczak was following the influencer named “Jacksepticeye” in 2016 to
learn about new potential games, Antoniszczak Decl. ¶ 32 (75 TTABVUE 8), and on
December 30, 2016, Jacksepticeye posted on his YouTube channel a nearly 15-minute
video of himself playing the RAFT game. Antoniszczak Decl. ¶ 33; Ex. 10 (75
TTABVUE 8, 66-70). According to the YouTube page, the video had more than
4,000,000 views. Antoniszczak Decl. Ex. 10 (75 TTABVUE 70).
On February 3, 2017, the influencer named “Markiplier” posted a nearly 23-
minute video on YouTube showing himself playing the RAFT game. Antoniszczak
Decl. ¶ 34; Ex. 11 (75 TTABVUE 8-9, 71-75). According to the YouTube page, the
video had more than 4,000,000 views. Antoniszczak Decl. Ex. 11 (75 TTABVUE 75).
Mr. Antoniszczak testified that
[t]his type of reception by gamers to a new game that is still
in its prototype phase is unusual. By January 2017, the
RAFT game had been released to the public on itch.io and
downloaded by thousands of users. Although the game was
in a prototype version, the RAFT game was a functional,
playable game that was being enjoyed by thousands and
had a huge following. As a result, I thought the RAFT game
had a lot of potential and was a good candidate for Axolot
to pursue as a possible investment. I visited the social
media that the RAFT students were using to promote their
RAFT game, as well as their development blog, and decided
to reach out to them on Twitter.
Antoniszczak Decl. ¶ 36 (75 TTABVUE 9).

Cancellation No. 92075698
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On January 7, 2017, the Developers “posted an entry on our blog thanking all of
our customers for their amazing support and updating everyone on our plans.”
Bengtsson Decl. ¶ 52; Ex. 81 (67 TTABVUE 12, 153-59). We reproduce the entry
below:
Bengtsson Decl. Ex. 81 (67 TTABVUE 154).
On January 19, 2017, Mr. Antoniszczak contacted the Developers and expressed
interest in possibly providing financing for further development of the RAFT game.
Bengtsson Decl. ¶ 55 (67 TTABVUE 13). The Developers were very excited by the

Cancellation No. 92075698
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contact, Bengtsson Decl. ¶ 55 (67 TTABVUE 13), and had a Skype meeting with Mr.
Antoniszczak on January 23, 2017 to discuss possible cooperation with Axolot to
further develop the game. Bengtsson Decl. ¶ 59 (67 TTABVUE 14).
The Developers issued a new version of the RAFT game on itch.io on January 22,
2017 and publicized it through their blog and social media accounts. Bengtsson Decl.
¶¶ 56-57; Exs. 84-85 (67 TTABVUE 13, 171-79).
The Developers’ Decision to Make Further Development of the RAFT
Game Their Full-Time Job
Mr. Bengtsson testified that based on the success of the RAFT game to date, and
its future potential, the Developers decided to make further development of the game
their full-time job:
Because of the huge support and recognition that our
RAFT game received after its release on itch.io and because
of the interest from Axolot, Mr. Parlayan, Ms. Melläker
and I made the decision to form a company to develop the
RAFT game. We also decided that we would drop out of
University after we completed the classes that we were
then taking to work full-time on further development of the
RAFT game.
Bengtsson Decl. ¶ 60 (67 TTABVUE 14). In early February 2017, the Developers met
with Mr. Antoniszczak in person and began negotiating with Axolot about investing
in and publishing the RAFT game. Bengtsson Decl. ¶ 63 (67 TTABVUE 14). Redbeet
Interactive AB was formed in February 2017,40 and the Developers assigned all their
rights to the RAFT game to the company. Bengtsson Decl. ¶¶ 68-69; Ex. 94 (67
TTABVUE 15; 69 TTABVUE 220-23).
40 Mr. Bengtsson has been Petitioner’s CEO since its formation. Bengtsson Tr. 11:8-23 (109
TTABVUE 6).

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In February 2017, the RAFT game was the subject of articles in Yahoo! News and
on rockpapershotgun.com. Bengtsson Decl. ¶¶ 62, 64 Exs. 88-89 (67 TTABVUE 14-
15, 186-96). On February 9, 2017, the developers posted the following entry on their
blog:
Bengtsson Decl. ¶ 65; Ex. 90 (67 TTABVUE 15, 198).41 The developers also announced
their plans on their social media accounts. Bengtsson Decl. ¶ 65; Ex. 91 (67
TTABVUE 15; 69 TTABVUE 206-12).
41 Respondent argues that “the fact that Redbeet needed to clarify this at all underscored just
how loosely organized the development still was.” 125 TTABVUE 12.

Cancellation No. 92075698
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Downloads of the RAFT Game From Itch.io and Exposure of the Game
During early 2017, the RAFT game was downloaded from itch.io more than
100,000 times a day in January, Bengtsson Decl. ¶ 61; Ex. 87 (67 TTABVUE 14; 69
TTABVUE 188-89), around 50,000 times a day in February, Bengtsson Decl. ¶ 70;
Ex. 95 (67 TTABVUE 15-16; 69 TTABUE 224-25), and more than 10,000 times a day
in March. Bengtsson Decl. ¶ 74; Ex. 99 (67 TTABVUE 16; 69 TTABVUE 244-45).
Between December 16, 2016 and March 30, 2021, the RAFT game listing on itch.io
had approximately 13,000,000 views and 9,500,000 million downloads. Bengtsson
Decl. ¶ 80; Ex. 105 (67 TTABVUE 19; 69 TTABVUE 266-67). Mr. Bengtsson testified
that between December 16, 2016, and April 21, 2017, the Developers’ RAFT listing
on itch.io had nearly 14,000,000 page views, and nearly 3,500,000 users, and that
according to itch.io’s data, the largest portion of users during this time period
(13.11%) were from the United States. Bengtsson Decl. ¶ 79; Ex. 104 (67 TTABVUE
17; 69 TTABVUE 264-65). On April 7, 2017, pcworld.com published an article about
12 of the best games on itch.io and included the RAFT game. Bengtsson Decl. ¶ 75;
Ex. 100 (67 TTABVUE 16, 222-23).42
In late March 2017, the Developers completed their course work at Uppsala
University, and dropped out of the University. Bengtsson Decl. ¶ 72 (67 TTABVUE
16). They announced their intentions in a blog entry dated March 29, 2017, which we
reproduce below:
42 During the first months of 2017, the Developers began noticing unauthorized third-party
copies of the RAFT game and took various steps against them. Bengtsson Decl. ¶¶ 66-67;
Exs. 92-93, 96 (67 TTABVUE 15-16, 203-09; 69 TTABVUE 213-19).

Cancellation No. 92075698
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Bengtsson Decl. Ex. 90 (67 TTABVUE 211).
On April 14, 2017, the Developers posted the following entry on their blog
addressed to “Rafters”:

Cancellation No. 92075698
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Bengtsson Decl. Ex. 101 (67 TTABVUE 225-27).
Mr. Bengtsson explained this entry as follows:
At this stage, our RAFT game was a fully functional and
playable game that had already been downloaded and
enjoyed by millions of our fans. It was not a fake game. By
“real” game, as we explained in our blog, we meant that we

Cancellation No. 92075698
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intended to transform the game into “something much
bigger than it is now,” with “more technically difficult
features, a lot more content and more polishing.” Up to this
point, we had made our game available for download for
free. We wanted to turn the game into a version that we
would feel comfortable selling on Steam.
Bengtsson Decl. ¶ 77 (67 TTABVUE 17).43 In April 2017, the Developers stopped
offering any updates or otherwise supporting the RAFT game on itch.io. Bengtsson
Decl. ¶ 80 (67 TTABVUE 19).
Petitioner’s Agreements With Axolot and Subsequent Marketing of the
Game, and the Announcement of Its Release on Steam Early Access
On May 17, 2017, Axolot and Redbeet Interactive AB signed a Shareholders
Agreement, an Investment Agreement, and a Publishing Agreement, under which
agreements Axolot invested in Redbeet and agreed to publish the RAFT game when
it was released on Steam. Bengtsson Decl. ¶ 85 (67 TTABVUE 19); Antoniszczak Decl.
¶¶ 46-49; Exs. 15-17 (75 TTABVUE 11; 77 TTABVUE 90-122).
During the summer of 2017, the Developers continued to post entries on their blog
and on social media with information about the RAFT game and new features that
were being added to the game to keep fans and users interested in the game and to
43 Respondent argues that this entry showed that “RAFT hadn’t been a constant focus,” and
that the Developers were “just carving out time to get back to it was considered blog-worthy.”
125 TTABVUE 12. According to Respondent, “[u]p to that point, development had been
sporadic at best. But in this entry, the team laid out a new direction: they wanted to turn
what had been a string of rough, feedback-fueled prototypes with an attempt to turn it into
a ‘real’ game,” id., and “[f]or the first time, they were talking seriously about content depth,
polish, and technical upgrades. They also admitted that this next phase would be slower,
noting, ‘we need to make sure everything works for each update, which takes a lot of time.’”
Id. at 13. Respondent further argues that “this post was the first time Redbeet publicly
revealed plans to launch the game on a digital game distribution platform Steam . . .” Id.

Cancellation No. 92075698
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get feedback. Bengtsson Decl. ¶ 86; Exs. 107-08 (67 TTABVUE 19, 274-97).44 In
August 2017 the Developers set up an office for their company in Skövde, Sweden.
Bengtsson Decl. ¶ 87 (67 TTABVUE 17).
On September 5, 2017, the Developers announced on their blog and on Instagram
that the RAFT game would be coming to Steam Early Access in 2018. Bengtsson Decl.
¶ 88; Ex. 110 (67 TTABVUE 19, 309-18). We reproduce pertinent portions of their
blog entry below:
44 Respondent cites and quotes an August 4, 2017 blog entry in which the Developers
“provided another development update that made it clear the game was still far from
complete. They noted that ‘some of the stuff we’ve worked on is still in the production phase
which means it’s not really ready for the blog.’ The choice of words—‘production phase’—is
telling. It signals that many parts of the game were still being actively built, not tested,
polished, or finalized.” 125 TTABVUE 13.

Cancellation No. 92075698
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45
From the fall of 2017 through the spring of 2018, the Developers continued to
develop the RAFT game for release on Steam and posted entries on their blog about
new features and their development efforts, and they promoted the game through
45 Respondent cites and quotes a September 17, 2017 blog entry and argues as follows:
“Redbeet responded to the growing buzz around RAFT’s Steam release with a message that
was equal parts cautious and revealing. They acknowledged the question—'When in 2018
will Raft release on Steam?’—but made it clear they weren’t ready to commit. Why? Because,
in their own words, their priority was to ‘release a game that works,’ not one riddled with
‘endless bugs and crashes.’” 125 TTABVUE 13-14 (quoting 92 TTABVUE 100, 107 TTABVUE
321). According to Respondent, “[m]ore importantly, this post marked a significant shift: for
the first time, Redbeet signaled their move away from free, feedback-driven prototypes and
toward a commercial product. ‘Raft will not be free,’ they stated. ‘We haven’t decided yet on
exactly how much the game will cost. However, once the price is set in stone, we’ll tell you
right away.’” Id. at 14. Respondent argues that “[t]hat announcement was a turning point—
it made clear that RAFT was evolving from a loosely shaped, community-guided experiment
into a product they expected people to buy.” Id. Respondent also argues that “[t]he Steam
launch triggered highly emotional responses from early supporters, further confirming that
the Itch.io version had never been seen as a commercial product . . . .” Id. at 32 (citing
September 16 and 17, 2017 responses (92 TTABVUE 109, 112, 107 TTABVUE 330, 333)).

Cancellation No. 92075698
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their social media pages. Bengtsson Decl. ¶¶ 90-91; Exs. 112-16 (67 TTABVUE 20,
321-31; 68 TTABVUE 3-24).46
The Release of the RAFT Game on the Steam Early Access Platform
On May 23, 2018, the Developers released the RAFT game on Steam Early Access.
Bengtsson Decl. ¶¶ 93-94; Exs. 118-19 (67 TTABVUE 20; 68 TTABVUE 28-35).47 Mr.
Bengtsson testified that the game was released on Steam Early Access because the
Developers “knew that there would be new ‘chapters’ and major updates in the future,
so that the game was not yet finished.” Bengtsson Decl. ¶ 92 (67 TTABVUE 20). Mr.
Antoniszczak explained that “Steam Early Access is a platform that allows a game
developer to sell its game while the game is still being developed,” that to be listed on
Steam Early Access, the game “must be playable and functional,” but that “customers
who purchase a game on Steam Early Access understand that games on Steam Early
Access are considered to be ‘unfinished’ by the developer and still contain bugs” and
“will usually receive major updates while in the ‘Early Access’ stage.” Antoniszczak
Decl. ¶ 21 (75 TTABVUE 6). The Developers “released the RAFT game on Steam
Early Access because we had plans to add more features to the game in the future,
46 Respondent cites and quotes a November 10, 2017 blog entry that he argues shows “just
how far RAFT had come from its early, prototype roots.” 125 TTABVUE 14. According to
Respondent, the Developers’ reference to “a version ‘stable enough to play for a longer time’,”
id. (quoting 92 TTABVUE 122, 107 TTABVUE 343), “speaks volumes—it wasn’t about being
feature-complete or polished for release, just stable enough to hold together during extended
play. And what did they do with it? They ‘brought in some friends to play’ to test the game.”
Id.
47 Respondent quotes a portion of the Developers’ blog entry that states that “the commercial
release of the game on Steam is . . . ‘miles better than the prototype in every aspect . . . .’” 125
TTABVUE 14 (quoting 92 TTABVUE 128). The rest of the quoted portion states that
“development has not stopped” and the entry goes on to say that “Raft will continue to grow
during the Early Access.” 92 TTABVUE 128.

Cancellation No. 92075698
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and Early Access was the best vehicle for that.” Antoniszczak Decl. ¶ 55 (75
TTABVUE 11).48 According to Mr. Antoniszczak, Axolot
supported Redbeet’s decision not to release any more
updates of the RAFT game from April 2017 until the game
was ready for its subsequent release on Steam in May
2018. Although Axolot was an approved developer on
Steam at this time and could have immediately released
the RAFT game on Steam, we believed that adding more
content to the RAFT game and improving the game before
the game was released on Steam would build up more
excitement over the RAFT game and create a better
product. This delay in releasing the RAFT game on Steam
would also create a boom effect when the announcement of
the planned Steam release was made at a later date.
Antoniszczak Decl. ¶ 43 (75 TTABVUE 10).
Full Listing of the RAFT Game on Steam
Mr. Bengtsson testified that “[w]e were not sure what to expect with the release
of the RAFT game on Steam, but it has exceeded all expectations.” Bengtsson Decl.
¶ 96 (67 TTABVUE 20). Prior to moving the “Final Chapter” RAFT game from Steam
Early Access to a full release listing on Steam in June 2022, Bengtsson Decl. ¶ 104
48 Respondent notes that the Developers twice acknowledged that the Steam version of the
RAFT game was materially different from the version of the game that had been made
available on itch.io. Respondent quotes from a tweet on October 1, 2018 in which the
Developers stated that “‘[w]e have the itch prototype, but that’s quite old and doesn’t really
represents [sic] the current version. . . .’” 125 TTABVUE 15 (quoting (92 TTABVUE 173).
Respondent also quotes from a tweet on September 13, 2021 in which the Developers stated
that “‘playing or donating to the itch prototype will not grant access to the Steam version of
Raft,’” id. at 14 (quoting 92 TTABVUE 129), and that “the itch game is simply a prototype,
not a beta nor an alpha. We did at no point promise anything to donators. The game is now
in Early Access on Steam, and BUYING this version will give you full access to the game. I
hope that helps.’” Id. (quoting 92 TTABVUE 129).

Cancellation No. 92075698
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(67 TTABVUE 21),49 the RAFT game was regularly listed on Steam as a top game.
Bengtsson Decl. ¶¶ 96-100; Exs. 120-24 (67 TTABVUE 20-21; 68 TTABVUE 36-71).
Since the release of the RAFT game on Steam, sales from the game through October
1, 2023 were in the low nine figures worldwide, and about one-third of those sales
have been to customers in the United States. Bengtsson Decl. ¶ 101 (69 TTABVUE
21). Nearly 3,000,000 units of the game have been sold during that period to
customers in the United States. Bengtsson Decl. ¶ 101 (69 TTABVUE 21).
III. Petitioner’s Entitlement to a Statutory Cause of Action
“Entitlement to a statutory cause of action is an element of the plaintiff's case in
every inter partes proceeding.” El Roblar Inv. Prop. LLC v. Roe, Opp. No. 91272200,
2025 WL 2718983, at *18 (TTAB 2025) (internal quotation and quotation marks
omitted) (citing 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 (2014)). “Under Trademark Act Section 14, 15
U.S.C. § 1064, ‘any person who believes that he is or will be damaged . . . by the
registration of a mark on the principal register’ may petition to cancel that
registration,” and a “party in the position of plaintiff may petition to cancel
registration of a mark when such cancellation is within the zone of interests protected
49 Mr. Antoniszczak explained that a “developer decides when a game is ready for ‘full release,
and, at that point, the developer moves the game from the Steam Early Access platform to
the full release platform on Steam.” Antoniszczak Decl. ¶ 21 (75 TTABVUE 6). According to
Mr. Antoniszczak, “[u]sually customers who have purchased a game from Steam Early Access
will get all updates and the full release version of the game without having to pay more to
the developer.” Antoniszczak Decl. ¶ 23 (75 TTABVUE 6).

Cancellation No. 92075698
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by the statute . . . and the plaintiff has a reasonable belief in damage that is
proximately caused by registration of the mark.” JNF, 2022 WL 4379238, at *1
(citing Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1072 (Fed. Cir. 2022)
(citing Lexmark, 572 U.S. at 132; Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303-
04 (Fed. Cir. 2020)).
Petitioner’s ’576 Application to register the mark RAFT and design for “Providing
on-line computer games; providing information on-line relating to computer games
and computer enhancements for games; electronic games services provided by means
of the internet” in Class 41 has been refused based on a citation of Respondent’s ’897
Registration. Woldow Decl. ¶¶ 4, 14; Exs. 168, 170 (84 TTABVUE 3, 5, 7-23, 40-90).50
“There is no question that Petitioner, whose application has been blocked by
Respondent’s registration, is entitled to be heard on the question of cancellation of
that registration.” JNF, 2022 WL 4379238, at *2 (citation omitted). “Further, ‘[t]o
establish a reasonable basis for a belief that one is damaged by the registration
sought to be cancelled, a petition may assert a likelihood of confusion which is not
wholly without merit . . .’” Id. (citation omitted). “Accordingly, Petitioner may seek to
cancel Respondent’s registration, as its claim is within the zone of interests protected
by statute and Petitioner has a reasonable belief in damage proximately caused by
the continued registration of Respondent’s mark.” Id. (citations omitted).
50 Respondent admitted in his Answer to Petitioner’s Second Amended Petition to Cancel that
“the USPTO has refused Petitioner’s Application Serial No. 79/269,576 to register the RAFT
& Design mark based on a finding that there is a likelihood of confusion between Petitioner’s
RAFT & Design mark and Registrant’s RAFT mark.” Answ. ¶ 59 (51 TTABVUE 8).

Cancellation No. 92075698
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IV. Petitioner’s Section 2(d) Claim
“Section 2(d) of the Trademark Act provides a ground for cancellation of a
registered mark based on likelihood of confusion with a petitioner’s mark or trade
name previously used in the United States and not abandoned.” JNF, 2022 WL
4379238, at *3. There are two elements to a Section 2(d) claim based on an
unregistered mark, priority and likelihood of confusion. We begin with priority.
A. Priority51
Under Section 2(d), “[t]o establish priority, the petitioner must show proprietary
rights in the mark that produce a likelihood of confusion.” JNF, 2022 WL 4379238,
at *3 (quoting Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA
1981)). “These proprietary rights may arise from a prior registration, prior trademark
or service mark use, prior use as a trade name, prior use analogous to trademark or
service mark use, or any other use sufficient to establish proprietary rights.” Id.
(quoting Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002)).
51 As noted above, the parties filed extensive cross-motions for summary judgment regarding
priority that were based on much of the same evidence and arguments that they presented
at trial. 20-21 TTABVUE; 22 TTABVUE; 28 TTABVUE. Administrative Trademark Judges
Zervas, Taylor, and Wolfson sat on the panel that denied the cross-motions on May 31, 2022.
49 TTABVUE 1-21. They have all since retired, and the current panel has been appointed to
decide the case at final hearing.
In denying the parties’ cross-motions, the summary judgment panel held, inter alia, that
“genuine disputes remain as to whether . . . Petitioner can claim the benefit of any premarket
use of its mark, in a manner analogous to trademark use, to establish its priority of use
through tacking,” id. at 16, and that “Petitioner has not demonstrated that its alleged prior
use with respect to either [goods or services] constitutes typical commercial use as typified
within the computer gaming industry.” Id. at 17. The summary judgment panel’s conclusions
on these matters and others do not bind the trial panel because the law of the case doctrine
“does not apply to a denial of summary judgment.” Aycock Eng’g, Inc. v. Airflite, Inc., 560
F.3d 1350, 1356 (Fed. Cir. 2009) (citation omitted).

Cancellation No. 92075698
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As discussed above, the parties agree that the critical date for priority purposes is
April 28, 2017, and “Petitioner thus bears the burden of proving that its mark was
‘previously used in the United States’” before that date by a preponderance of the
evidence. Id.
Petitioner states that its “priority claim is based on its common law rights in the
word mark RAFT” for computer games. 123 TTABVUE 50 (emphasis supplied by
Petitioner).52 Petitioner argues that “the overwhelming evidence shows that [it]
continuously used the RAFT mark for its Computer Games and Computer Game
Services for six months before Registrant’s claimed priority date, whether such use
is characterized as use of RAFT as an actual trademark or service mark or as use of
RAFT in a manner analogous to trademark or service mark use.” Id. at 32 (emphasis
supplied by Petitioner). In its main brief, Petitioner argues that it made technical
trademark or service mark use of RAFT in commerce prior to April 28, 2017, id. at
32-40, as well as use analogous to trademark use prior to that date. Id. at 40-46.53
52 Petitioner’s common-law RAFT word mark “must be distinctive, inherently or otherwise,
and [Petitioner] must show priority of use.” Shenzhen IVPS Tech. Co. v. Fancy Pants Prods.,
LLC, Opp. No. 91263919, 2022 WL 16646840, at *16 (TTAB 2022) (citation omitted).
Respondent’s identical RAFT word mark was registered on the Principal Register for
“survival mobile games” without a requirement of a showing of acquired distinctiveness, and
it is thus presumed to be inherently distinctive, Heil Co. v. Tripleye GmbH, Opp. No.
91277359, 2024 WL 4925901, at *18 (TTAB 2024) (citing 15 U.S.C. § 1057(b)), and the
USPTO did not require a disclaimer of the word RAFT during prosecution of Petitioner’s ’576
Application to register its composite mark. Respondent does not argue that the word mark
RAFT is not inherently distinctive for computer games when used by Petitioner. We find that
Petitioner showed that its RAFT mark is inherently distinctive, and, accordingly, Petitioner
is only required to show that it used its claimed common-law RAFT mark in the United States
prior to April 28, 2017.
53 As discussed above, Petitioner was formed in February 2017, and the Developers assigned
all of their rights to the RAFT game to Petitioner. Bengtsson Decl. ¶¶ 68-69; Ex. 94 (67

Cancellation No. 92075698
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Respondent denies that Petitioner has shown either prior technical trademark or
service mark use in commerce, or prior analogous use. 125 TTABVUE 18-38.
Respondent summarizes his position as follows:
At its core, this proceeding stands on a fundamental
principle of U.S. trademark law: who first used the RAFT
mark in a way that creates enforceable legal rights?
Petitioner . . . attempts to obscure this core issue with a
flurry of pre-commercial hype—a scattered mix of blog
posts, sporadic social media mentions, and uploads of an
early-stage prototype game to Itch.io, a platform better
known for experimental releases than formal product
launches. [Petitioner] made no serious effort to
commercialize the game, protect the mark, or establish a
marketplace presence before [Respondent’s] priority date.
At best, its efforts amounted to student-level development
activity paired with attempts to generate buzz. But “buzz”
is not use. And under the Lanham Act, legal rights arise
from bona fide commercial use, not excitement,
experimental downloads, or vague intentions to “maybe”
develop the game further someday. Petitioner’s patchwork
narrative fails to meet this legal standard and cannot
support a claim to priority. Even [Petitioner’s] fallback
argument of “analogous use” is fundamentally flawed. To
claim priority based on use analogous to trademark use, a
party must demonstrate activities that create a strong
public association of the mark with the user’s goods or
services. [Petitioner’s] activities lacked this critical
continuity and commercial intent. In short, [Petitioner’s]
early actions amounted to preliminary development
efforts, not the establishment of trademark rights. Without
demonstrable public association and a trajectory toward
commercial use, their claim to priority fails both legally
and factually.
Id. at 5.
TTABVUE 15; 69 TTABVUE 220-23). “[A]n assignee stands in the shoes of its assignor[s],”
Karsten Mfg. Corp. v. Editoy AG, Opp. No. 91101408, 2006 WL 1258869, at *7 n.9 (TTAB
2006), and Respondent does not contest the assignment or argue that Petitioner cannot rely
on the Developers’ pre-assignment use of the RAFT mark.

Cancellation No. 92075698
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Elsewhere in his brief, Respondent characterizes Petitioner’s position as “All
Games Are Essentially Prototypes,” id. at 33, and argues that
Redbeet did not engage in structured test marketing, did
not sell units, and did not operate under regulatory or
institutional oversight. Instead, they uploaded an
unfinished game to itch.io—a platform specifically
designed to host experimental, noncommercial indie
projects for free. Even more telling, Redbeet themselves
described the release as “a prototype, not a beta nor an
alpha,” clearly signaling a lack of any commercial intent.
Id. at 35. Respondent specifically argues that
[i]n the gaming industry, commercial use of a mark
generally begins when a game enters Early Access, beta
testing under pre-order, or full release on commercial
platforms like Steam or consoles with pricing, licensing,
and marketing infrastructure. Prototypes and alpha
testing usually means an incomplete, unstable version of a
game full of bugs. Redbeet’s free, no-strings-attached
prototype distribution was not typical of a commercial
launch, it was a visibility exercise, consistent with open
development culture, not bona fide market activity. . . .
Redbeet’s prototype distribution was not a legitimate
commercial act, but a pre-commercial test release, which is
insufficient to support trademark rights.
Id. at 35-36.54
In its reply brief, Petitioner responds that
Registrant contends throughout his Brief that because
Petitioner’s RAFT game was initially released as a
prototype rather than a “finished” game, none of (a)
Petitioner’s extensive and regular marketing of the RAFT
game on social media, (b) Petitioner’s frequent and regular
updates about the development of the RAFT game on
Petitioner’s blog, (c) the favorable publicity received by
Petitioner’s RAFT game in the media, (d) the attention
54 Respondent quotes a LinkedIn article discussing software game development, 125
TTABVUE 36 n.3 (quoting 92 TTABVUE 194), but as discussed in our evidentiary ruling
above, we cannot consider the article for the truth of its contents.

Cancellation No. 92075698
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given to Petitioner’s RAFT game by major gaming
influencers on YouTube, and/or (e) the millions of
downloads and uses of the RAFT game by users worldwide
prior to Registrant’s first use of RAFT for his knockoff
game count or have any bearing upon Petitioner’s priority
in the RAFT mark. . . . This contention is absurd. . . .
Petitioner used the RAFT mark for its computer games and
computer game services in commerce months before
Registrant copied Petitioner’s RAFT game and mark.
Moreover, to the extent that Petitioner’s use of the RAFT
mark for a prototype game somehow does not constitute
use in commerce as a trademark or service mark,
Petitioner meets the requirements of analogous use to
establish priority in the RAFT mark . . . .
126 TTABVUE 6-7 (emphasis supplied by Petitioner; record citations omitted).
Petitioner further argues in its reply brief that Respondent’s “obsession with
‘prototype’ versus ‘finished’ game really goes to a question about the quality of
Petitioner’s game when it was first offered for download to the public – not to whether
Petitioner’s game was a computer game offered to the public for download.” Id. at 8
(emphasis supplied by Petitioner). According to Petitioner, the fact that
early prototype versions of Petitioner’s RAFT game were of
lower quality and contained less features than the version
that was released on Steam in May 2018 does not change
the fact that Petitioner offered its RAFT game prototypes
to the general public, without restriction, at least as early
as October 2016, and that millions of users downloaded
Petitioner’s prototypes before Registrant released his
knock-off “completed” RAFT mobile game in late April
2017.
Id. (emphasis supplied by Petitioner).
The parties’ positions on the characteristics that a computer game must have
before trademark rights can attach to it differ dramatically. According to Respondent,
it must be a “completed” game; according to Petitioner, an “uncompleted” game with

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bugs and future modifications on the horizon will do if it can be played as a game.
Petitioner has the better of the argument.
Respondent’s vision of a “completed” or “final” version of computer game software
is an illusion. Software, a good that is ubiquitous in modern society, is not a static
one, but instead evolves by its very nature; as anyone who owns a mobile phone or
uses a personal computer can attest, software is routinely updated.55 The record
suggests that computer game software may be the paradigm of such dynamism.56 The
relevant issue with respect to when trademark rights attach to computer game
software is not when it is “final” or “completed,” but rather when consumers recognize
computer game software as a game that can be played and the involved mark is
associated by purchasers in the United States with a particular source for the goods.
55 The TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) recognizes the
evolutionary nature of software, as it provides that “[s]pecimens for downloadable or recorded
software may also indicate that the software is a ‘beta’ version. This term is commonly used
in the software field to identify a preliminary version of a product. Although some beta
products may not be made available to consumers, others are. Thus, the appearance of this
term on a specimen for downloadable or recorded software does not, by itself, necessarily
mean that the relevant goods are not in actual use in commerce or that the specimen is
unacceptable.” TMEP Section 903.04(e) (June 2025) (citing 15 U.S.C. §§ 1051, 1127).
56 Indeed, Respondent testified on cross-examination that changes were made to what he
described as the “final” version of his own RAFT game that was released on April 28, 2017,
Novikov Cross Tr. 35:7-13; 36:1-4 (118 TTABVUE 37-38), and that “computer games are
being constantly improved to meet the challenges of the competition.” Novikov Cross Tr. 36:7-
9 (118 TTABVUE 38). He could not recall exactly how many changes had been made to his
RAFT game, but he testified that “[t]he game is being constantly improved, updated so the
bugs are removed, and additions are made” and that “the changes are made nonstop every
year and are still being made right now. The game keeps being improved and updated.”
Novikov Cross Tr. 37:13-16, 20-23 (118 TTABVUE 39). He identified multiple specific
changes, including the addition of new features and improvements to the graphics. Novikov
Cross Tr. 37:24-38:15 (118 TTABVUE 39-40).

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The record shows that the RAFT game was downloaded and played hundreds of
thousands of times throughout its development, including very early on, in late 2016
and early 2017, when the game lacked features that were contained in later versions
and contained bugs that were fixed in later versions. As Mr. Antoniszczak put it, the
“RAFT game has gone through many different versions, and later versions of the
game function better, have many more graphics and features, and are more polished
than the earlier versions,” but it has always “been a playable and functional real
game since I first learned about it in January 2017.” Antoniszczak Decl. ¶ 42 (75
TTABVUE 10). From the standpoint of consumers, the RAFT game was a playable
computer game in its most rudimentary version and continued to be one throughout
its development, and all versions of that game came from the source identified as
“Redbeet.”
1. Prior Trademark Use
Both parties argue at some length about whether and when Petitioner used its
RAFT mark “in commerce,” 123 TTABVUE 29-40; 125 TTABVUE 15-16; 126
TTABVUE 7-12, but as Petitioner correctly states in a footnote in its reply brief, “[i]t
is well established that prior use necessary for establishing priority in an opposition
or cancellation does not have to meet the stringent requirements needed to obtain
registration of a trademark. Instead, the plaintiff merely needs to show ‘prior use’ of
the mark at issue to establish priority.” 126 TTABVUE 10 n.2 (emphasis supplied by
Petitioner; citation omitted). Section 2(d) of the Trademark Act permits a cancellation
claim based on a mark “previously used in the United States . . . and not abandoned,”
15 U.S.C. § 1052(d), and “‘Section 14 [through Section 2(d)] requires only prior use;

Cancellation No. 92075698
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‘in commerce’ is noticeably absent.’” First Niagara Ins. Brokers, Inc. v. First Niagara
Fin. Grp., Inc., 476 F.3d 867, 870 (Fed. Cir. 2007) (quoting Nat’l Cable Television
Ass’n v. Am. Cinema Eds., Inc., 937 F.2d 1572, 1578 n.4 (Fed. Cir. 1991)).
Accordingly, for purposes of priority, Petitioner is not required to show that its use
of RAFT prior to April 28, 2017 would entitle it to registration of its mark based on
use of the mark “in commerce.” Rather, Petitioner need only prove that the RAFT
mark was “previously used in the United States” prior to that date. As explained
below, we find that Petitioner has priority because its RAFT mark was in fact used
“in commerce” before April 28, 2017, and such prior use necessarily means that the
mark was “previously used in the United States.”57
Petitioner cites the Eleventh Circuit’s decision in Planetary Motion, Inc. v.
Techsplosion, Inc., 261 F.3d 1188 (11th Cir. 2001), “in which the Eleventh Circuit
held that posting COOLMAIL software on a website for free download in exchange
for a user license was sufficient to establish use of the COOLMAIL mark in
commerce.” 123 TTABVUE 36. We are not bound by this regional circuit court
decision, but in Lens.com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376 (Fed. Cir. 2012),
57 In its May 31, 2022 order denying the parties’ cross-motions for summary judgment on
priority, the summary judgment panel held that “genuine disputes remain as to whether
Petitioner’s first use in commerce of the mark RAFT was on goods or in association with
services,” 49 TTABVUE 16, and that “[d]epending on industry practice, certain promotional
activities, such as distributing samples, may qualify as use in commerce.” Id. at 17 (citing
Automedx, Inc. v. Artivent Corp., Opp. No. 91182429, 2010 WL 3441114, at *6 (TTAB 2010)).
The summary judgment panel concluded that “Petitioner has not demonstrated that its
alleged prior use with respect to either [trademark or service mark use] constitutes typical
commercial use as typified within the computer gaming industry.” Id. As noted above, the
summary judgment panel’s conclusions do not preclude us from reaching different
conclusions at trial, or from making different factual findings based on the trial record.

Cancellation No. 92075698
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the Federal Circuit “agree[d] with the Eleventh Circuit that the distribution of
Software over the internet can satisfy the jurisdictional predicate for ‘use in
commerce’—such as in Planetary Motion where consumers consciously downloaded
the Coolmail software. . . .” Id. at 1381 (emphasis in bold here in italics in Lens.com).58
Because (1) the Federal Circuit has agreed with the Eleventh Circuit’s holding in
Planetary Motion that distribution of software over the Internet can constitute “use
in commerce,” (2) Respondent never discusses, much less refutes, the analysis in
Planetary Motion, and (3) we find that analysis to be persuasive and not in conflict
with any contrary binding Federal Circuit authority of which we are aware, we will
apply the Eleventh Circuit’s analysis to the facts here.
In Planetary Motion, the Eleventh Circuit affirmed the grant of summary
judgment to the plaintiff in a suit for unfair competition under Section 43(a) of the
Trademark Act, 15 U.S.C. § 1125(a), based on use of the claimed common-law
trademark COOLMAIL for what the court described as software that “provides e-mail
users with notice of new e-mail and serves as a gateway to the users’ e-mail
application.” Planetary Motion, 261 F.3d at 1191. The plaintiff had acquired the
claimed COOLMAIL mark by assignment from its original user, an individual who
58 In Lens.com, the Federal Circuit distinguished Planetary Motion factually because in
Planetary Motion, the software itself “was the primary product in commerce,” while in
Lens.com, “the LENS mark is used only in connection with the sale and transportation
of contact lenses via the Internet” and “[a]lthough the ordering service is facilitated
through software, the record does not indicate that consumers have any reason to be aware
of any connection between the LENS mark and Lens.com’s software.” Lens.com, 686 F.3d at
1381 (emphasis in bold here in italics in Lens.com). Here, as in Planetary Motion, the
computer game software that must be downloaded to play the RAFT game is the only relevant
product.

Cancellation No. 92075698
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had “distributed the Software over the Internet by posting it on a UNIX user site
called ‘Sunsite,’ from which it could be downloaded for free.” Id.59 The Eleventh
Circuit noted that “after the release of the Software, [the assignor] received
correspondence from users referencing the ‘Coolmail’ mark and in some cases
suggesting improvements” and “released two subsequent versions of the Software
under the same mark . . . .” Id.
The District Court had found that “wide distribution of the Coolmail software over
the Internet, even absent any sales thereof, was sufficient to establish ownership
rights in the ‘CoolMail mark,” id. at 1194, and the Eleventh Circuit upheld that
finding because the assignor’s “activities under the ‘Coolmail’ mark constitute a ‘use
in commerce’ sufficiently public to create ownership rights in the mark.” Id. at 1196.
The Eleventh Circuit held that although the distribution of the Coolmail software
over the Internet was a “use in commerce,” “the use of a mark in commerce also must
be sufficient to establish ownership rights for a plaintiff to recover against
subsequent users under section 43(a).” Id. at 1195 (emphasis in bold here in italics in
Planetary Motion; citation omitted). The Eleventh Circuit held that the “sufficiency
of use should be determined according to the customary practices of a particular
industry.” Id. at 1198 (citing S. Rep. 100–515 at 44 (1988) (“The committee intends
that the revised definition of ‘use in commerce’ . . . be interpreted to mean commercial
use which is typical in a particular industry.”) (emphasis in bold here in italics
59 In Planetary Motion, as here, the defendant did not “contest the validity of the assignment”
or “dispute that in purchasing rights to [the assignor’s] software, [the plaintiff] succeeded to
all rights possessed by [the assignor].” Planetary Motion, 261 F.3d at 1192 n.1.

Cancellation No. 92075698
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in Planetary Motion)).60 The Eleventh Circuit held that the assignor’s “activities
under the ‘Coolmail’ mark constitute a ‘use in commerce’ sufficiently public to create
ownership rights in the mark,” id. at 1196, for several reasons, including that the
software’s “distribution was widespread, and there is evidence that members of the
targeted public actually associated the mark Coolmail with the Software to which it
was affixed;” the software was “available not merely to a discrete or select group (such
as friends and acquaintances, or at a trade show with limited attendance), but to
numerous end-users via the Internet;” the software “was posted under a filename
bearing the ‘Coolmail’ mark on a site accessible to anyone who had access to the
Internet;” “[e]nd-users communicated with [the assignor] regarding the Software by
referencing the ‘Coolmail’ mark in their e-mails;” and “the mark served to identify
the source of the Software.” Id. at 1196-97. The Eleventh Circuit concluded that “the
use of the mark in connection with the Software constitutes significant and
substantial public exposure of a mark sufficient to have created an association in the
mind of [the] public.” Id. at 1200.
The Developers’ and Petitioner’s pre-April 28, 2017 use of the RAFT mark closely
resembles the use of the Coolmail mark in Planetary Motion in nature, but on a much
larger scale. In October 2016, the Developers made a playable and functioning first
prototype of the RAFT game available for downloading through Google Drive or
Dropbox. Bengtsson Decl. ¶ 30; Ex. 63 (67 TTABVUE 8, 93-94); Bengtsson Tr. 19:17-
60 In Automedx, the Board echoed this portion of the Eleventh Circuit’s analysis in holding
that “[u]se in commerce should be interpreted with flexibility to account for different industry
practices.” Automedx, 2010 WL 3441114, at *6.

Cancellation No. 92075698
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20 (93 TTABVUE 8). A second prototype was released on October 27, 2016, Bengtsson
Tr. 21:11-22:10 (93 TTABVUE 8-9), and a third prototype was released for
downloading on the Developers’ blog in November 2016, Bengtsson Decl. ¶ 36; Ex. 67
(67 TTABVUE 9, 104-05), which, as shown above, prominently displayed the RAFT
mark, and identified the source of the game as “Redbeet Interactive” even before a
company with that name existed.
The Developers released the RAFT game on itch.io on December 16, 2016.
Bengtsson Decl. ¶ 42; Ex. 71 (67 TTABVUE 10, 115-18). This version of the game was
also a functional and fully playable prototype, Bengtsson Tr. 29:16-21 (93 TTABVUE
10), and could be downloaded and played by anyone with Internet access. Bengtsson
Decl. ¶ 24 (67 TTABVUE 7). By the end of December 2016, the RAFT game was being
downloaded from itch.io more than 100,000 times per day. Bengtsson Decl. ¶ 46; Ex.
75 (67 TTABVUE 11; 69 TTABVUE 129-30).
On December 31, 2016, the Developers set up a community forum on itch.io with
their listing for the RAFT game through which users could make suggestions for the
game, notify the Developers of bugs, provide screen shots and videos of themselves
playing the game, and post topics relating to the game for discussion. Bengtsson Decl.
¶ 84 (67 TTABVUE 18).61 Between December 31, 2016 and April 17, 2017, gamers
posted hundreds of topics on the RAFT community forum. Bengtsson Decl. ¶ 84; Ex.
106 (67 TTABVUE 18-19, 241-73).
61 As with the Developers’ blog itself, the community forum and most of the posts were in
English. Bengtsson Decl. ¶ 84; Ex. 106 (67 TTABVUE 18-19, 241-73).

Cancellation No. 92075698
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During early 2017, the RAFT game was downloaded from itch.io more than
100,000 times a day in January, Bengtsson Decl. ¶ 61; Ex. 87 (67 TTABVUE 14; 69
TTABVUE 188-89), around 50,000 times a day in February, Bengtsson Decl. ¶ 70;
Ex. 95 (67 TTABVUE 15-16; 69 TTABUE 224-25), and more than 10,000 times a day
in March. Bengtsson Decl. ¶ 74; Ex. 99 (67 TTABVUE 16; 69 TTABVUE 244-45).
Between December 16, 2016, the date of the release of the RAFT game on itch.io, and
April 21, 2017, the Developers’ RAFT listing on itch.io had nearly 14,000,000 page
views, and nearly 3,500,000 users, and the largest portion of users during this time
period (13.11%) were from the United States. Bengtsson Decl. ¶ 79; Ex. 104 (67
TTABVUE 17; 69 TTABVUE 264-65). That is, there were approximately 450,000 U.S.
players of the RAFT game before April 21, 2017.
These activities establish that the RAFT game was “transported” in commerce in
the same manner as the email software in Planetary Motion. Like the plaintiff’s
assignor in Planetary Motion, the Developers and Petitioner made the RAFT game
available for downloading by anyone who had access to the Internet, and it was
downloaded many hundreds of thousands of times before April 28, 2017. Like the
plaintiff’s assignor in Planetary Motion, the Developers and Petitioner released
multiple versions of the RAFT game software after its initial release in October 2016.
Like the email software users in Planetary Motion, the gamers who downloaded and
played the RAFT game communicated with the Developers about it and offered
suggestions for its improvement, and some even voluntarily contributed money
towards its further development. Bengtsson Decl. ¶ 78 (69 TTABVUE 17).

Cancellation No. 92075698
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As discussed above, Respondent belittles these activities, claiming that the
Developers “made no serious effort to commercialize the game, protect the mark, or
establish a marketplace presence before Registrant’s priority date,” and “[a]t best,
[their] efforts amounted to student-level development activity paired with attempts
to generate buzz.” 125 TTABVUE 5. The defendant in Planetary Motion made a
similar argument that the plaintiff’s assignor “was a ‘hobbyist’ unworthy of common
law trademark protection,” Planetary Motion, 261 F.3d at 1198, but the Eleventh
Circuit held that the assignor “did not attempt to ‘warehouse’ the mark by promoting
a product he merely intended to develop and distribute at a later date” and that his
“use of the mark to designate the distributed Software and each subsequent version
thereof indicates that his use was not mere sporadic or token use.” Id. (emphasis in
bold here in italics in Planetary Motion).
The Eleventh Circuit also held that the assignor’s “activities pertained to his
chosen profession” as a computer systems administrator. Id. at 1198-99. The court
concluded that the assignor’s
activities bear elements of competition, notwithstanding
his lack of an immediate profit-motive. By developing and
distributing software under a particular mark, and taking
steps to avoid ceding the Software to the public domain,
[he] made efforts to retain ownership rights in his Software
and to ensure that his Software would be distinguishable
from other developers who may have distributed similar or
related Software. . . . Competitive activity need not be
fueled solely by a desire for direct monetary gain. [The
assignor] derived value from the distribution because he
was able to improve his Software based on suggestions sent
by end-users. Just as any other consumers, these end-users
discriminate among and share information on available
software. It is logical that as the Software improved, more

Cancellation No. 92075698
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end-users used his Software, thereby increasing [his]
recognition in his profession and the likelihood that the
Software would be improved even further.
Id. at 1200.
As discussed above, the Developers’ “chosen profession,” as reflected in their
university major subject, was game design and, like the assignor in Planetary Motion,
the Developers incorporated suggestions from gamers regarding improvement of the
RAFT game. While the Developers may have lacked “an immediate profit-motive,”
id., when the RAFT game was in its infancy in 2016 as a university course project, by
early 2017, they had turned toward commercialization of the game “[b]ecause of the
huge support and recognition that our RAFT game received after its release on itch.io
and because of the interest from Axolot.” Bengtsson Decl. ¶ 60 (67 TTABVUE 14).
Prior to April 28, 2017, they formed Redbeet Interactive AB, began negotiating with
Axolot, and decided to “drop out of University after we completed the classes that we
were then taking to work full-time on further development of the RAFT game.”
Bengtsson Decl. ¶ 60 (67 TTABVUE 14).
“[N]ot every transport of a good is sufficient to establish ownership rights in a
mark,” Lens.com, 686 F.3d at 1380 (quoting Planetary Motion, 261 F.3d at 1196), but
the Developers’ and Petitioner’s pre-April 28, 2017 “transport” of the RAFT game via
the Internet is sufficient to show use in commerce prior to that date.62 We find that
62 Because we find that Petitioner made prior trademark use of the RAFT mark, we need not
consider its claim that it used RAFT as a service mark prior to April 28, 2017.

Cancellation No. 92075698
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Petitioner established its priority based on the Developers’ and Petitioner’s use of the
RAFT mark in commerce in connection with computer games.
2. Analogous Use
Although Petitioner’s proof of use in commerce is sufficient to establish its priority,
we will also consider Petitioner’s analogous use claim in the event that a reviewing
court finds that the Developers’ and Petitioner’s use of the RAFT mark was not
technical trademark use in commerce. “‘[E]ven before proper trademark use
commences, advertising or similar pre-sale activities may establish priority if they
create the necessary association in the mind of the consumer.’” Andrusiek v. Cosmic
Crusaders LLC, Canc. No. 92064830, 2022 WL 4103636, at *8 (TTAB 2022) (quoting
Cent. Garden & Pet Co. v. Doskocil Mfg. Co., Opp. No. 91188816, 2013 WL 4635990,
at *8 (TTAB 2013)), aff’d, No. 23-1150, 2023 WL 6889054 (Fed. Cir. Oct. 19, 2023).63
“To prove prior analogous use, Petitioner need not submit survey evidence or other
direct evidence of the consuming public’s identification of the [RAFT] mark with
Petitioner as the source of [computer games].” Id. “‘Instead, the fact finder may infer
the fact of identification on the basis of indirect evidence regarding [Petitioner’s] use
of the word or phrase in advertising brochures, catalogs, newspaper ads, and articles
in newspapers and trade publications.’” Id. (quoting T.A.B. Sys. v. PacTel Teletrac, 77
F.3d 1372, 1375 (Fed. Cir. 1996)). Analogous use may also include use on “Internet
websites that created a public awareness of the designation as a trademark
63 The Board’s decision in Andrusiek was redesignated as a precedent on January 3, 2024
after the Federal Circuit affirmed it.

Cancellation No. 92075698
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identifying Petitioner as the source of the relevant goods.” Id. at *6 (citation
omitted).64
“The analogous use doctrine allows a party to claim priority as of when it is
established that the mark is associated in the mind of the consumer with a source for
the goods.” Cent. Garden, 2013 WL 4635990, at *10. “While the ‘activities claimed to
constitute analogous use must have substantial impact on the purchasing public,’” id.
at *8 (quoting T.A.B. Sys., 77 F.3d at 1376), “that does not mean proof is required
[that] ‘a fixed percentage, like 20%, much less 51%, of the potential customers must
have formed the required ‘prior public identification.”’ Id. (cleaned up) (quoting T.A.B.
Sys., 77 F.3d at 1377). “The user must prove that the ‘necessary association’ was
created among more than an insubstantial number of potential customers.” T.A.B.
Sys., 77 F.3d at 1377.
“Thus, Petitioner may establish [its] priority by showing that [it] has used the
[RAFT] mark in the United States in a manner analogous to trademark use sufficient
to create an association in the mind of the relevant consumers between the mark and
the goods, followed by actual trademark use of the mark within a ‘commercially
64 In its order denying the parties’ cross-motions for summary judgment, the summary
judgment panel noted that “the touchstone of analogous use is a factual determination of
whether the use of the mark has created in the minds of the relevant public an association
between the goods or services and their source,” 49 TTABVUE 16 (quoting Cent. Garden,
2013 WL 4635990, at *8), and that “[a]ny such analogous use ‘must be an open and notorious
public use directed to the segment of the purchasing public for whom the services are
intended.’” Id. (quoting Comput. Food Stores, Inc. v. Corner Store Franchises, Inc., Opp. No.
91051942, 1973 WL 19922, at *4 (TTAB 1973)).

Cancellation No. 92075698
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reasonable’ time.” Andrusiek, 2022 WL 4103636, at *9 (quoting Dyneer Corp. v. Auto.
Prods., PLC, Opp. No. 89148, 1995 WL 785742, at *5 (TTAB 1995)).65
In Andrusiek, the petitioner was a Canadian citizen who engaged in activities
under his alter ego “Captain Cannabis” that the Board found collectively established
his rights in the CAPTAIN CANNABIS mark for comic books in the United States
prior to the respondent’s priority date of April 2, 2014. Id. at *8. He “‘created a
costumed superhero character and comic book titled CAPTAIN CANNABIS’ during
the 1970s and obtained a Canadian copyright in 1977 for the ‘unpublished Literary
and Artistic (comic book) titled CAPTAIN CANNABIS,” id. at *9; attended a trade
show in the United States in 1999 at which he distributed a flyer regarding
development of an adult animated series under the mark “Captain Cannabis,” id.;
registered the domain name captaincannabis.com in 1999 and began operating a
website under that name, id.; began using various social media platforms displaying
the CAPTAIN CANNABIS mark in 2010, id. at *10; was interviewed in 2007 on
programs that were broadcast into the United States on radio and over the Internet,
id. at *11; and was featured in articles in High Times magazine in 2007 and in
Culture magazine in 2011. Id.
The record here contains evidence of exposure of the RAFT mark to United States
consumers through means similar to those in Andrusiek prior to Respondent’s April
65 Respondent acknowledges that “U.S. trademark law does allow priority to be established
through analogous use,” but argues that “the legal threshold is exceedingly high. A party
must show that its pre-sales promotional activities were extensive, commercial in nature,
and effective enough to create a strong public association between the mark and the product
or service before actual use. Courts and the TTAB do not grant trademark priority based on
incomplete efforts or isolated promotional activity.” 125 TTABVUE 18.

Cancellation No. 92075698
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28, 2017 priority date, but in a more compressed time frame than in Andrusiek and
on a much larger scale. The Developers registered the domain name blog.raft-
game.com and began publishing blog entries in English regarding the development
of the RAFT game on October 13, 2016. Bengtsson Decl. ¶¶ 29-30; Exs. 62-63 (67
TTABVUE 7-8, 87-97). The Developers used social media such as Instagram and
YouTube to promote the RAFT game. Bengtsson Decl. ¶¶ 36, 40, 44, 56-57, 65, 86;
Exs. 67, 70, 72-74, 84-85, 91, 107-08 (67 TTABVUE 9-11, 13, 15, 19, 104-05, 113-14,
119-28, 171-79, 274-97; 69 TTABVUE 206-12); Bengtsson Tr. 30:18-31:14 (93
TTABVUE 11). The RAFT game received unsolicited media coverage in English-
language media including the Hinterland Forums, the rockpapershotgun.com
website, Yahoo! News, and pcworld.com. Bengtsson Decl. ¶¶ 53-54, 62, 64, 75; Exs.
82-83, 88-89, 100 (67 TTABVUE 13-16, 160-70, 186-96, 222-23). Three “influencers,”
a relatively recent phenomenon not discussed in Andrusiek, exposed the RAFT game
to millions of their followers by posting videos of themselves playing the game.
Antoniszczak Decl. ¶¶ 32-35; Exs. 9-12 (75 TTABVUE 8-9, 55-81). On April 14, 2017,
the Developers posted an entry on their blog addressed to “Rafters,” which noted that
the Developers ultimately eyed a launch of the RAFT game on the Steam platform.
Bengtsson Decl. ¶ 76; Ex. 101 (67 TTABVUE 17, 225-27).
As discussed above, the analogous “user must prove that the ‘necessary
association’ was created among more than an insubstantial number of potential
customers.” T.A.B. Sys., 77 F.3d at 1377. In Andrusiek, the Board noted that
[a]lthough there is no record evidence of the size of the
comic book market or number of marijuana consumers in

Cancellation No. 92075698
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the United States at the time, both parties seem to be
directing their marks to these same niche
communities. The evidence attached to Petitioner’s
affidavit suggests that Petitioner’s CAPTAIN CANNABIS
mark is reasonably well-known within these communities,
even if the numbers are not large in absolute terms, and
was reasonably well-known prior to Respondent’s priority
date. By that date, Petitioner’s mark had received regional
and national attention in niche publications and media,
and Petitioner had promoted its mark on a national level,
including through trade shows, social media, and the
Internet. We find that the evidence considered in its
entirety establishes that Petitioner garnered sufficient
notoriety from his pre-sales activities to support a finding
that his analogous use “is of such a nature and extent as to
create public identification of the target term with the
[petitioner’s] product.”
Andrusiek, 2022 WL 4103636, at *11 (quoting T.A.B. Sys., 77 F.3d at 1375).
Here, as in Andrusiek, there is no evidence regarding the exact size of the relevant
market for the parties’ computer game software, but there is no doubt that in 2017
both parties were “directing their marks to these same niche communities” of gamers,
id.,66 and the record shows that by April 28, 2017, the RAFT mark was “reasonably
well-known within these communities, even if the numbers are not large in absolute
terms.” Andrusiek, 2022 WL 4103636, at *11, By that date, according to itch.io’s data,
there were approximately 450,000 players of the RAFT game in the United States,
Bengtsson Decl. ¶ 79; Ex. 104 (67 TTABVUE 17; 69 TTABVUE 264-65), and the game
had been promoted on the Developers’ English-language blog and social media pages.
By that time, the RAFT game had also been touted by what Respondent called “well-
66 Respondent testified on cross-examination that the United States market was the most
profitable market for his own RAFT game. Novikov Cross Tr. 39:10-16 (118 TTABVUE 41).

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known creators,” 125 TTABVUE 57, the social media influencers who showed
themselves playing the game, and had received unsolicited media coverage in
English-language publications and websites, while being highly ranked as a very
popular new game on online game sites. “We find that the evidence considered in its
entirety establishes that Petitioner garnered sufficient notoriety from [the
Developers’] pre-sales activities to support a finding that [Petitioner’s] analogous use
‘is of such a nature and extent as to create public identification of the target term
with [Petitioner’s] product.’” Id. (quoting T.A.B. Sys., 77 F.3d at 1375).
“The second prong of the test for finding analogous use sufficient to support
priority requires that the analogous use be followed up within a reasonable time
frame by actual trademark use.” Id. at *12. In Andrusiek, the Board found that “by
2017, Petitioner sold comic books under the mark CAPTAIN CANNABIS” and that
“Petitioner’s actual trademark use in 2017 [was] within a commercially reasonable
period of time following his analogous use in 2013-14 so as to create a ‘continuing
association of the mark’ with Petitioner’s goods.” Id. (quoting Dyneer Corp., 1995 WL
785742, at *6).
We have found above that the Developers made analogous use of the RAFT mark
between October 2016 and the end of April 2017, and they and Petitioner took steps
to commercialize the game both during and after that period. The Developers began
discussions with Axolot in January 2017, Bengtsson Decl. ¶ 59 (67 TTABVUE 14),
and formed Petitioner in February 2017 and assigned all their rights to the RAFT
mark to their company. Bengtsson Decl. ¶¶ 68-69; Ex. 94 (67 TTABVUE 15; 69

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TTABVUE 220-23). Petitioner then signed various agreements with Axolot on May
17, 2017 under which Axolot agreed to publish the RAFT game when it was released
on the Steam platform. Bengtsson Decl. ¶ 85 (67 TTABVUE 19); Antoniszczak Decl.
¶¶ 46-49; Exs. 15-17 (75 TTABVUE 11; 77 TTABVUE 90-122). During the summer of
2017, the Developers continued to post entries on their blog and on social media with
information about the RAFT game and new features that were being added to the
game to keep fans and users interested in the game and to get feedback on new
features. Bengtsson Decl. ¶ 86; Exs. 107-08 (67 TTABVUE 19, 274-97).
On September 5, 2017, the Developers announced on their blog and on Instagram
that the RAFT game would be coming to Steam Early Access in 2018, Bengtsson Decl.
¶ 88; Ex. 110 (67 TTABVUE 19, 309-18), and on May 23, 2018, Petitioner released
the RAFT game on Steam Early Access. Bengtsson Decl. ¶¶ 93-94; Exs. 118-19 (67
TTABVUE 20; 68 TTABVUE 28-35). The game’s release on Steam Early Access
allowed Petitioner to sell the game while it was still being developed even though it
was subject to major upgrades. Antoniszczak Decl. ¶¶ 21, 55 (75 TTABVUE 6, 11).
Mr. Bengtsson testified that a little less than one-third of Petitioner’s total sales
of the RAFT game through Steam have been to United States customers, and that
those sales have generated revenues in the mid-eight figures in U.S. dollars.
Bengtsson Decl. ¶ 101 (69 TTABVUE 21). We find that Petitioner’s sales of the RAFT
game on Steam beginning in May 2018 occurred within a commercially reasonable
time after the Developers’ analogous use of the RAFT mark between October 2016
and the end of April 2017, and “create[d] a ‘continuing association of the mark’ with

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Petitioner’s goods.” Andrusiek, 2022 WL 4103636, at *12. Petitioner accordingly
proved its priority by analogous use if its pre-April 28, 2017 distribution of the RAFT
game through the Internet did not constitute technical trademark use of the RAFT
mark in commerce.
B. Likelihood of Confusion
We have found above that Petitioner’s RAFT mark reached our shores before
Respondent’s RAFT mark did. We turn now to the question of whether Respondent’s
use of RAFT for a “survival mobile game” is likely to cause consumers to believe
mistakenly that his game is Petitioner’s game, or is authorized or sponsored by
Petitioner.
Under Section 2(d) of the Trademark Act, our determination of the likelihood of
confusion is based on an analysis of all probative facts in the record that are relevant
to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co.,
476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See, e.g., In re Charger Ventures LLC,
64 F.4th 1375, 1379 (Fed. Cir. 2023). We consider each DuPont factor for which there
is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed.
Cir. 2019).67 “Petitioner must establish that there is a likelihood of confusion by
a preponderance of the evidence.” Keystone Consol. Indus., Inc. v. Franklin Inv. Corp.,
Canc. No. 92066927, 2024 WL 3771168, at *9 (TTAB 2024).
Petitioner argues that
67 Only Petitioner cites DuPont. 123 TTABVUE 47-49 (arguing that the first, second, third,
fourth, fifth, seventh, tenth, and thirteenth DuPont factors support a conclusion that
confusion is likely).

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[l]ikelihood of confusion between the parties’ RAFT marks
is clear, and Registrant has introduced no evidence that
would give any indication that Registrant believes to the
contrary. Furthermore, because the marks are identical,
the goods are identical, and there has been significant
actual confusion in the marketplace, likelihood of confusion
is inevitable.
123 TTABVUE 45 (emphasis supplied by Petitioner).68
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.” DC Comics
v. Cellular Nerd Inc., Opp. No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted). As discussed above, Petitioner
has proven priority based on its common-law rights in the mark RAFT for computer
games. Petitioner’s RAFT word mark is identical to the RAFT word mark shown in
Respondent’s ’897 Registration, which covers computer game software, and the
evidence shows that both parties use their RAFT word marks in connection with
computer games with the identical theme of survival on the ocean that may be
68 Petitioner also argues that there has been significant actual confusion, 123 TTABVUE 47;
that the parties market their games through the same channels of trade to the same
consumers, id. at 48; that Petitioner’s RAFT mark is strong, id.; and that Respondent “copied
Petitioner’s game and mark with the intent to trade on the goodwill Petitioner had
established in the RAFT mark.” Id. We address Petitioner’s arguments under the third and
seventh DuPont factors below. We need not address Petitioner’s argument regarding
Respondent’s alleged copying because “a showing of bad faith is not required to establish
likelihood of confusion under Section 2(d).” Major League Baseball Players Ass’n v. Chisena,
Opp. No. 91240180, 2023 WL 2986321, at *27 (TTAB 2023) (citing J&J Snack Foods Corp. v.
McDonald’s Corp., 932 F.2d 1460, 1462 (Fed. Cir. 1991); Jewelers Vigilance Comm. Inc. v.
Ullenberg Corp., 853 F.2d 888, 891 (Fed. Cir. 1988)), appeal docketed, No. 23-2073 (Fed. Cir.
June 26, 2023).

Cancellation No. 92075698
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downloaded to personal electronic devices.69 The key first two DuPont factors strongly
support a conclusion that confusion is likely.
We also agree with Petitioner that the parties have marketed their games to
gamers through overlapping trade channels, including the same social media, and
Respondent admitted in his Answer to Petitioner’s Second Amended Petition to
Cancel that “Registrant and Petitioner market their Computer Game Software and
Computer Games to the same types of customers.” Answ. ¶ 58 (51 TTABVUE 8). The
third DuPont factor, the “similarity or dissimilarity of established, likely-to-continue
trade channels,” DuPont, 476 F.2d at 1361, also supports a conclusion that confusion
is likely.
Under the seventh DuPont factor, Petitioner argues that there has been
significant actual confusion in which consumers have expressed the mistaken belief
that Respondent’s game is Petitioner’s game, or is otherwise affiliated with
69 Respondent’s identification of goods covers “Computer game software for use on mobile and
cellular phones, namely, survival mobile games,” while at the time of trial, Petitioner’s RAFT
game was played only on personal computers, but Mr. Bengtsson testified without
contradiction that “[m]any producers of computer games offer versions of their games for both
personal computers and for mobile devices,” including Fortnite and Call of Duty, and that
the existence of Respondent’s registration had thwarted Petitioner’s development of a game
for mobile devices. Bengtsson Decl. ¶ 141; Ex. 151 (67 TTABVUE 28; 68 TTABVUE 166-95;
69 TTABVUE 28). We note in that regard that Respondent’s applications to register other
RAFT-formative marks cover goods identified as “Downloadable computer game software for
use on mobile and cellular phones, personal computers, laptops, home video game consoles,
smart TV sets, namely, survival games,” and that Respondent admitted in his Answer to
Petitioner’s Second Amended Petition to Cancel that “Registrant’s RAFT brand Computer
Game Software and Petitioner’s RAFT brand Computer Games and Game Services may be
related,” Answ. ¶ 53 (51 TTABVUE 7), and that “Registrant and Petitioner use their RAFT
marks in the similar fields of use.” Answ. ¶ 54 (51 TTABVUE 8). As discussed below,
Respondent does not argue that the second DuPont factor, or any other factor, supports a
conclusion that confusion is unlikely.

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Petitioner. 123 TTABVUE 47. Petitioner’s cited evidence of actual confusion consists
largely of alleged “complaints about mobile versions of our game” that required
Petitioner to “explain to the complainers that our game is only on Steam and that we
do not make any mobile versions of the game.” Bengtsson Decl. ¶ 127 (67 TTABVUE
26). Mr. Bengtsson testified that he believed that “many of these complaints were
incidents where users confused us with a mobile version of a ‘Raft’ game involve
Registrant’s ‘Raft’ game for mobile phones,” Bengtsson Decl. ¶ 127 (67 TTABVUE 26),
but he conceded, with respect to multiple such complaints, that “[w]e do not know
what knock-off ‘Raft’ mobile game was being referred to in this email.” Bengtsson
Decl. ¶¶ 128, 130-32, 135, 138; Exs. 139, 141-43, 146, 149 (67 TTABVUE 26-28; 68
TTABVUE 131-32, 135-40, 145-46, 151-55).70 Mr. Bengtsson’s admissions that
Petitioner does not know that the inquiries involved Respondent’s game rather than
another one of the “several different knock-off ‘Raft’ games” that appeared in 2018
and 2019, Bengtsson Decl. ¶ 108 (67 TTABVUE 102), preclude us from finding actual
confusion between the parties’ games based on these complaints.
Petitioner’s evidence also includes consumer correspondence to Petitioner
inquiring about a possible relationship between Petitioner and Respondent.
Bengtsson Decl. ¶¶ 134 (describing the consumer as “wondering if we have a
relationship with Registrant’s ‘Raft’ game”), 136 (describing the consumer as “asking
if we were connected with the ‘Raft Mobile’ game offered by Registrant”), 137
70 In one instance involving an Android listing, Mr. Bengtsson admitted that “[w]e do not
believe that Registrant is the person behind this particular listing.” Bengtsson Decl. ¶ 129;
Ex. 140 (67 TTABVUE 36, 68 TTABVUE 133-34).

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(describing the consumer as “asking us if Registrant’s ‘Raft Survival: Ocean Nomad
– Simulator’ on Facebook is connected to us”); Exs. 145, 147-48 (67 TTABVUE 27-28,
68 TTABVUE 143-44, 147-50). Such inquiries do not involve actual confusion.
Sabhnani, 2021 WL 6072822, at *23.
Finally, Mr. Bengtsson pointed to online reviews of what he claimed to be
Respondent’s game, Bengtsson Decl. ¶ 139; Ex. 150 (67 TTABVUE 28; 68 TTABVUE
156-65), most of which characterized Respondent’s game as a “knockoff,” “copy,”
“clone,” or “remake” of Petitioner’s game, or “not the real RAFT game.” By definition,
such reviews manifest the reviewer’s understanding that Respondent’s game and
Petitioner’s game are not the same and have different sources.
We find that Petitioner did not prove significant actual confusion, but as the
Federal Circuit recently reiterated, the “failure to prove instances of actual
confusion is not dispositive against a trademark plaintiff, because actual confusion
is hard to prove.” Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376,
1381 (Fed. Cir. 2025) (emphasis in bold here in italics in the original; quotation
omitted). The seventh DuPont factor is neutral in our analysis of the likelihood of
confusion.
Respondent does not argue that any DuPont factor shows that confusion is
unlikely, but instead relies solely on statements made by Petitioner to the USPTO in
response to an office action during prosecution of Petitioner’s ’576 Application, which
statements Respondent claims show that Petitioner “argued unequivocally that

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confusion between its logo and the RAFT word mark (Novikov’s mark) was unlikely
based on dissimilarity of marks and sophistication of customers.” 125 TTABVUE 44.
Petitioner’s response to the office action stated, among other things, that
“[p]roperly considered in their entireties, Applicant’s mark is so dissimilar from the
cited mark that confusion is unlikely,” Woldow Decl. ¶ 12; Ex. 169 (84 TTABVUE 5,
36); that “[w]hen Applicant’s mark and the cited mark are viewed in their entireties,
it is respectfully submitted that there is no likelihood of confusion between the two
marks due to the significant visual differences between the marks,” 84 TTABVUE 37;
that “Applicant’s goods are sold to educated gamers that are looking for a specific
product from a particular source,” id. at 38; and that “[g]iven the dissimilarity in the
marks and the sophistication of those to whom sales are made, likelihood of confusion
is remote.” Id.
Respondent argues that “[w]hen a party tells the USPTO one thing to secure a
registration and later tells the TTAB the opposite to cancel someone else’s rights, the
doctrine of judicial estoppel or, at the very least, equitable estoppel is triggered.” 125
TTABVUE 44.71 According to Respondent, “TTAB precedent makes it clear:
statements made during prosecution are admissible and probative in later disputes.
71 This argument appears to relate to Respondent’s purported second Affirmative Defense,
Answ. Aff. Def. ¶ 2 (51 TTABVUE 8), although Respondent did not describe that defense as
involving either judicial estoppel or equitable estoppel.

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They are not automatically binding, but they are treated as ‘admissions against
interest’ and weighed heavily against a party trying to reverse itself.” Id.72
Respondent’s position is incorrect. Arguments made during prosecution do not
“rise to the level of an admission against interest.” Anthony’s Pizza, 2009 WL
4075365, at *12 (citing Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d
926, 929 (CCPA 1978)). Instead, the fact that “a party earlier indicated a contrary
opinion respecting the conclusion in a similar proceeding involving similar marks and
goods is a fact” and “that fact may be received in evidence as merely illuminative
of shade and tone in the total picture confronting the decision maker.” DC
Comics, 2022 WL 17832492, at *30 (emphasis in original) (quoting Interstate Brands,
576 F.2d at 929). “To that limited extent, a party’s earlier contrary opinion may be
considered relevant and competent. Under no circumstances, may a party’s opinion,
earlier or current, relieve the decision maker of the burden of reaching his own
ultimate conclusion on the entire record.” Id. (quoting Interstate Brands, 576 F.2d at
72 In support of these arguments, Respondent does not cite any “TTAB precedent,” 125
TTABVUE 44, but instead relies on a Third Circuit case, Freedom Card, Inc. v. JPMorgan
Chase & Co., 432 F.3d 463 (3d Cir. 2005), in which Respondent claims that “the court treated
prior denial of confusion as relevant and persuasive to rebut later attempts to claim it.” 125
TTABVUE 44. We are again not bound by this regional circuit court decision, but in Anthony’s
Pizza & Pasta Int’l, Inc. v. Anthony’s Pizza Holding Co., Opp. No. 91171509, 2009 WL
4075365 (TTAB 2009), aff’d, 415 F. App’x 222 (Fed. Cir. 2010), the Board explained that in
Freedom Card, the Third Circuit had “considered the plaintiff’s contrary position as being
‘illuminative of shade and tone in the total picture confronting the decision maker’ when
considered in context with the other evidence.” Anthony’s Pizza, 2009 WL 4075365, at *13.
The Third Circuit’s analysis is consistent with the analysis that is required under the
controlling Federal Circuit precedent discussed below.

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929).73 See also Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1322
(Fed. Cir. 2014) (“A party’s prior arguments may be considered as illuminative of
shade and tone in the total picture, but do not alter the Board’s obligation to reach
its own conclusion on the record”) (internal quotation and quotation marks omitted).
In any event, the USPTO rejected Petitioner’s arguments in concluding that
confusion was likely with respect to the non-identical RAFT marks and different
goods and services at issue on the refusal to register the mark shown in the ’576
Application. In issuing its August 4, 2020 final refusal to register Petitioner’s
composite mark, the USPTO found that the composite RAFT mark was confusingly
similar to the RAFT word mark shown in the ’897 Registration, and that
Respondent’s “Computer game software for use on mobile and cellular phones,
namely, survival mobile games” was related to the services identified as “Providing
on-line computer games; providing information on-line relating to computer games
73 Respondent argues that in the Board’s Interstate Brands decision that was affirmed on
appeal by the CCPA, “the Board admonished a party for reversing positions and emphasized
that prosecution arguments ‘illuminate the shade and tone of the total picture’ adding ‘[t]o
that limited extent, a party’s earlier contrary opinion may be considered relevant and
competent’.” 125 TTABVUE 45. The Board never mentioned “the shade and tone of the total
picture” in its Interstate Brands decision, but instead held that “Opposer’s argument in
support of its registration is . . . in essence, an admission in view of the cumulative differences
herein between the marks and goods that confusion is unlikely to occur.” Interstate Brands
Corp. v. Celestial Seasonings, Inc., 1977 WL 22576, at *6 (TTAB 1977). On appeal, the CCPA
held that “[t]he board erroneously concluded in the present case that: ‘Opposer’s argument
in support of its (own application for) registration . . . is, in essence, an admission in view of
the cumulative differences herein between the marks and goods that confusion is unlikely to
occur.’” Interstate Brands, 576 F.2d at 929. The CCPA held that “[i]n reaching the legal
conclusion, the decision maker may find that a fact, among those on which the conclusion
rests, has been admitted; he may not, however, consider as ‘admitted’ a fact shown to be non-
existent by other evidence of record; nor may he consider a party’s opinion relating to the
ultimate conclusion an ‘admission.’” Id.

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and computer enhancements for games; electronic games services provided by means
of the internet.” Woldow Decl. ¶ 14; Ex 170 (84 TTABVUE 5, 40-90).
The USPTO’s conclusion in August 2020 regarding the likelihood of confusion was
consistent with Respondent’s own stated position on that issue about two months
earlier. In June 2020, Respondent’s counsel sent a letter to Petitioner’s Swedish
counsel in which Respondent’s counsel claimed that “[b]ased on your admission,
confusion is very likely due to similarities in marks and goods,” and
demanded that Petitioner cease all further use of the RAFT mark for computer games
and all efforts to register it. Bengtsson Decl. ¶ 111; Ex. 128 (67 TTABVUE 23; 68
TTABVUE 87-90) (emphasis added). A “letter of infringement in which a party
expresses the view that there is likelihood of confusion between its mark and that of
the adverse party is not necessarily controlling on the question of likelihood of
confusion,” but “the admission contained in the letter may be a persuasive factor in
resolving any doubts which may exist concerning the likelihood of confusion.” Ultra
Elecs., Inc v. Workman Elec. Prods., Inc., Canc. No. 92011142, 1976 WL 21150, at *1
(TTAB 1976). We find that Respondent’s June 2020 demand letter asserting that
“confusion is very likely due to [the] similarities in the marks and goods,” 68
TTABVUE 89, corroborates our findings under the key first two DuPont factors that
confusion is likely.
“The likelihood of confusion analysis considers all DuPont factors for which there
is evidence of record but ‘may focus . . . on dispositive factors, such as similarity of
the marks and relatedness of the goods.’” Sunkist Growers, 144 F.4th at 1379. Our

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“ultimate conclusion on the entire record” here, DC Comics, 2022 WL 17832492, at
*30 (quoting Interstate Brands, 576 F.2d at 929), is that confusion is likely. Petitioner
has thus established the second element of its claim under Section 2(d).
C. Respondent’s Laches Defense
We turn now to Respondent’s laches defense, which is unavailable against
Petitioner’s Section 2(d) claim “[i]f confusion is inevitable [because] any private
injury to the defendant is outweighed by the public’s interest in preventing
confusion.” Advance Mag. Publishers, Inc. v. Fashion Elecs., Inc., Opp. No. 91247034,
2023 WL 4261426, at *9 (TTAB 2023) (citation omitted). See also Ultra-White Co. v.
Johnson Chem. Indus., Inc., 465 F.2d 891, 893-94 (CCPA 1972) (where confusion is
inevitable, “notwithstanding the equities between the parties and the equitable
principles of § 1069, the public interest expressed in § 1052(d) is the dominant
consideration”).
We use the DuPont factors to determine whether confusion is inevitable. Turner
v. Hops Grill & Bar Inc., Canc. No. 26674, 1999 WL 959435, at *3 (TTAB 1999). “A
showing of inevitable confusion is subject to a stringent standard that is satisfied
only where both the goods and marks are nearly identical.” Advance Mag. Publishers,
2023 WL 4261426, at *9 (finding no inevitable confusion between the marks
EVOGUE for consumer electronic devices and accessories and VOGUE
for magazines, online media content in the fields of lifestyle and fashion, and
software in the field of lifestyle and fashion for use with digital electronic devices).
Here, unlike in Advance Mag. Publishers, the key first two DuPont factors strongly

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support our ultimate conclusion that confusion is likely, and no factor supports a
contrary conclusion.
The Board has held in the context of an ownership dispute that “when the parties
are claiming rights in the same mark for the same goods or services, likelihood of
confusion is inevitable.” Wonderbread 5 v. Gilles, Canc. No. 92052150, 2015 WL
4380986, at *7 (TTAB 2015). Here, in the context of what is essentially a priority
dispute, both parties claim rights in the same RAFT word mark for computer games
involving the same theme of survival on the ocean, and we find that confusion is
inevitable. We thus need not consider the merits of Respondent’s laches defense
because “it is well established that equitable defenses such as laches and estoppel
will not be considered and applied where, as here, the marks of the parties are
identical and the goods are the same or essentially the same.” Reflange Inc. v. R-Con
Int’l, Canc. No. 16423, 1990 WL 354565, at *7 (TTAB 1990) (citations omitted).
D. Summary
Petitioner proved its Section 2(d) claim by showing its entitlement to a statutory
cause of action, its priority of use of the RAFT mark, and the existence of a likelihood
of confusion, by a preponderance of the evidence. Confusion is not only likely, but
inevitable given the identity of the marks and goods and, thus, Respondent’s laches
defense is unavailable.
Decision: The Second Amended Petition to Cancel is granted and Registration
No. 5447897 will be cancelled in due course.