Pacific Pharmaceuticals

Mailed: June 10, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Pacific Pharmaceuticals
————
Reexamination No. 2023-100842R for Registration No. 5904721
————
Anna Kurian Shaw and Katherine Bastian of Hogan Lovells US LLP,
for Pacific Pharmaceuticals.
Catherine Tarcu, Attorney Advisor, Liaison & Petitions Office,
Montia Pressey, Director for Trademark Register Protection.
————
Before Goodman, Cohen, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Pacific Pharmaceuticals (“Registrant”) is the owner of Registration No. 5904721
for the standard-character mark ESSENTIALE FORTE for, as amended,
“Pharmaceutical preparations and substances for the treatment of hepatological
related diseases and disorders; Dietary supplements; Nutraceuticals for use as a
dietary supplement,” in International Class 5.1 On petition for reexamination, the
1 Registration No. 5904721 issued on the Principal Register on November 5, 2019. A
declaration of use under Trademark Act § 8, 15 U.S.C. § 1058, was filed on October 30, 2025.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Reexamination No. 2023-100842R for Registration No. 5904721
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above-named Attorney Advisor (“Examiner”)2 issued a final decision finding that the
registration should be cancelled under Trademark Act Section 16B, 15 U.S.C. §
1066b(b),3 because the registered mark was not in use in commerce for the identified
goods on or before the relevant date. Registrant appeals that final decision. See
Trademark Rule 2.141(b), 37 C.F.R. § 2.141(b) (providing for appeal to the Board from
a reexamination proceeding).
For the reasons explained below, we affirm the Examiner’s decision.
I. Background
A. Law and Procedures for Reexamination Proceedings
In a reexamination proceeding, the USPTO may cancel, in whole or in part, a
registration issued under Trademark Act Section 1, 15 U.S.C. § 1051, if the evidence
of record shows that the registered mark was not in use in commerce as of the
relevant date. Where the underlying application was filed under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), the relevant date is the filing date of the application.
See Trademark Act Section 16B(b)(1), 15 U.S.C. § 1066b(b)(1); Trademark Rule
2.91(a)(2)(i), 37 C.F.R. § 2.91(a)(2)(i). In the case of an intent-to-use application filed
under Trademark Act Section 1(b), 15 U.S.C. § 1051(b), the relevant date is the date
of an amendment to allege use, if one is filed, or the deadline for filing a statement of
2 The terms “Trademark Examining Attorney” and “Examining Attorney” are typically used
in decisions involving ex parte appeals, but, here, the relevant section of the Trademark Act
refers to the “examiner” and “the examiner’s decision.” See Trademark Act Section 16B(g), 15
U.S.C. § 1066b(g). We will therefore also use the term “Examiner” in our opinion.
3 The Director’s authority to make determinations and issue notices and decisions related to
this matter was delegated to the assigned Examiner pursuant to 35 U.S.C. § 3(a)-(b). See also
Trademark Rule 2.91(e), 37 C.F.R. § 2.91(e) (“The authority to act on petitions made under
this section is reserved to the Director, and may be delegated.”).

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3
use, including all approved extensions. See Trademark Act Section 16B(b)(2), 15
U.S.C. § 1066b(b)(2); Trademark Rule 2.91(a)(2)(ii), 37 C.F.R. § 2.91(a)(2)(ii).
A reexamination proceeding may be instituted either on the Director’s own
initiative or through a third-party petition. See Trademark Rules 2.92(a) and 2.92(b),
37 C.F.R. §§ 2.92(a), 2.92(b).4 If a third-party petition for reexamination is filed, an
examiner will review it to determine whether it makes a prima facie showing of
nonuse as of the relevant date. See Trademark Rule 2.92(a), 37 C.F.R. § 2.92(a). If it
does make a prima facie case, the examiner will issue an office action to the registrant
setting forth the examiner’s determination and a notice of institution of the
proceeding. See Trademark Rule § 2.92(f)(2), 37 C.F.R. 2.92(f)(2); see also 15 U.S.C. §
1066b(d)(1).5
To avoid cancellation of the registration, the registrant must respond to the office
action with “such evidence of use, information, exhibits, affidavits, or declarations as
may be reasonably necessary to rebut the prima facie case of nonuse by establishing
that the required use in commerce has been made on or in connection with the goods
4 A petition for reexamination must be filed within five years of the date the mark was
registered. See Trademark Rule 2.91(b)(2), 37 C.F.R. § 2.91(b)(2). And a Director-initiated
reexamination proceeding must be instituted within the same time frame. See Trademark
Rule 2.92(b), 37 C.F.R. § 2.92(b) (indicating that “[t]he Director may institute an ex parte . . .
reexamination proceeding on the Director’s own initiative, within the time periods set forth
in § 2.91(b)”).
5 Trademark Act Section 16B(d)(3), 15 U.S.C. § 1066b(d)(3), states that “[a]ny determination
by the Director whether or not to institute a reexamination proceeding under this section
shall be final and non-reviewable”). See also Trademark Rule 2.92(c)(1), 37 C.F.R. § 2.92(c)(1)
(“Any determination by the Director whether to institute an expungement or reexamination
proceeding shall be final and non-reviewable.”).

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4
and/or services at issue as of the date relevant to the proceeding.” 37 C.F.R. 2.93(a).6
“A registrant’s documentary evidence of use shall be consistent with when a mark
shall be deemed to be in use in commerce under the definition of ‘use in commerce’ in
section 1127 . . . .” 15 U.S.C. § 1066b(f); see also Trademark Rule 2.93(b)(7), 37 C.F.R.
§ 2.93(b)(7).
Under Trademark Act Section 45, “use in commerce” is the bona fide use of a mark
in the ordinary course of trade. 15 U.S.C. § 1127. Thus, use made merely to reserve a
right in a mark does not meet the statutory definition of “use in commerce.” See
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 901.02 (May 2026) (citing
legislative history for the Trademark Law Revision Act of 1988, Public Law 100-667,
102 Stat. 3935); see also Couture v. Playdom, 778 F.3d 1379, 1381 (Fed. Cir. 2015);
Lens.com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376, 1380 (Fed. Cir. 2012); Aycock
Eng’g., Inc. v. Airflite, Inc., 560 F.3d 1350, 1357 (Fed. Cir. 2009) (explaining the
requirement that a mark be used in the “ordinary course of trade”); In re Everwise
Credit Union, No. 2023-100533R, 2026 TTAB LEXIS 118, at *5-6.
“Any evidence of use must be accompanied by a verified statement signed by
someone with firsthand knowledge of the facts to be proved, setting forth . . . factual
information about the use of the mark in commerce, including a description of the
supporting evidence and how the evidence demonstrates use of the mark in commerce
6 As occurred in this case, a registrant may also respond to a reexamination Office action by
deleting “some or all of the goods and/or services at issue in the proceeding.” Trademark Rule
2.93(b)(6), 37 C.F.R. § 2.93(b)(6). This renders the reexamination proceeding moot as to the
deleted goods or services. See Trademark Rule 2.93(d)(3), 37 C.F.R. § 2.93(d)(3).

Reexamination No. 2023-100842R for Registration No. 5904721
5
as of [the] relevant date for the goods and/or services at issue.” Trademark Rule
2.93(b)(7), 37 C.F.R. § 2.93(b)(7).
“While institution [of a reexamination proceeding] necessitates a response from
the registrant that includes evidence rebutting the prima facie case [of nonuse], the
ultimate burden of proving nonuse by a preponderance of the evidence remains with
the Office.” Changes To Implement Provisions of the Trademark Modernization Act
of 2020, 86 Fed. Reg. 64,300, 64,304 (Nov. 17, 2021).
B. Prosecution History
In this case, the application underlying the registration was filed on August 24,
2018, under Trademark Act Section 1(b), 15 U.S.C. § 1051(b), based on an allegation
of an intent to use the mark in commerce. After the mark was published for opposition
and no opposition was filed, the Office issued a notice of allowance. Within six
months, Registrant (then-Applicant) filed a Statement of Use under Section 1(d), 15
U.S.C. 1051(d), claiming February 8, 2016 as both the date the mark was first used
anywhere and the date it was first used in commerce. Based on the Statement of Use,
the mark registered on November 5, 2019.
On September 13, 2023, a third party filed a petition for reexamination of
Registrant’s mark under Trademark Act Section 16B(a), 15 U.S.C. § 1066b(a), which
presented arguments and evidence that the mark was not in use in commerce for any

Reexamination No. 2023-100842R for Registration No. 5904721
6
of the listed International Class 5 goods on or before the relevant date,7 which, in this
case, is September 12, 2019, the deadline for filing the statement of use.8
The assigned Examiner found that the petition established a prima facie case that
the mark was not in use as of the relevant date for the identified goods. The Examiner
thus issued a nonfinal Office action, which notified Registrant that a reexamination
proceeding had been instituted and required Registrant to respond with documentary
evidence of the mark’s use in commerce for the identified goods as of the relevant
date.9 Registrant timely responded with its evidence of use, but also requested that
the registration’s identification of goods be amended to delete certain wording from
the identification to limit the identified “pharmaceutical preparations and
substances” to those “for the treatment of hepatological related diseases and
disorders.”10 The Examiner granted the requested amendment, but found
7 See September 13, 2023 Petition for Reexamination at TSDR 1-95.
The Trademark Status and Document Retrieval (TSDR) citations in this opinion refer to the
electronic file database for the involved application. The TTABVUE citations in this opinion
refer to the Board’s docket system. The number preceding the “TTABVUE” designation is the
docket entry number and any numbers following indicate the page numbers within the docket
entry.
8 A Statement of Use is due six months after the Notice of Allowance issues, unless a timely
Request for Extension of Time to File a Statement of Use is filed. See Trademark Act Section
1(d), 15 U.S.C. § 1051(d); Trademark Rule 2.88(a), 37 C.F.R. § 2.88(a). Here, the Notice of
Allowance issued on March 12, 2019, and Registrant (then-Applicant) did not file an
extension request. Thus, the deadline for filing the Statement of Use was September 12, 2019.
9 See October 31, 2023 Combined Notice of Institution and Nonfinal Office Action at TSDR 1-
7.
10 February 17, 2024 Response to Nonfinal Reexamination Office Action at TSDR 1-7. The
registration originally identified the goods as “Pharmaceutical preparations and substances
for the treatment of viral, metabolic, endocrine, musculoskeletal, cardiovascular,
cardiopulmonary, genitourinary, sexual dysfunction, oncological, hepatological, ophthalmic,
respiratory, neurological, gastrointestinal, hormonal, dermatological, psychiatric and

Reexamination No. 2023-100842R for Registration No. 5904721
7
Registrant’s evidence did not show the required use of the mark for the goods in the
amended identification.11 Accordingly, the Examiner issued a final Office action
maintaining the requirement for documentary evidence of use of the registered mark
in connection with the identified goods as of the relevant date,12 and indicating that,
if that requirement were not satisfied, the registration would be cancelled under
Trademark Act Section 16B(b), 15 U.S.C. § 1066b(b). Registrant subsequently filed
this appeal and requested reconsideration, which the Examiner denied.13 The appeal
then resumed and has been fully briefed.14
The sole issue on appeal is whether Registration No. 5904721 should be cancelled
under Trademark Act Section 16B, because Registrant’s ESSENTIALE FORTE mark
was not in use in commerce for the identified International Class 5 goods, as
amended, on or before the relevant date of September 12, 2019.
immune system related diseases and disorders; Dietary supplements; Nutraceuticals for use
as a dietary supplement,” in International Class 5. See November 5, 2019 Registration
Certificate at TSDR 1.
11 See August 15, 2024 Final Reexamination Office Action at TSDR 2-4.
12 See id. at 1-4.
13 See June 30, 2025 Denial of Request for Reconsideration at TSDR 1-5.
14 Registrant’s Appeal Brief, 6 TTABVUE; Examiner’s Brief, 8 TTABVUE; Registrant’s Reply
Brief, 9 TTABVUE.
The Examiner’s Brief is 8 pages long, but features single-spaced text, rather than the double-
spaced text required by Trademark Rule 2.126(b)(1), 37 C.F.R. § 2.126(b)(1). See also
Trademark Rule 2.142(b)(2), 37 C.F.R. § 2.142(b)(2) (“Briefs must meet the requirements
prescribed in § 2.126.”). Nonetheless, we have considered the brief, because, even if the text
were double-spaced, it would not exceed the 25-page limit for briefs prescribed by Trademark
Rule 2.142(b)(2). Cf. In re Dimarzio, Inc., No. 87213400, 2021 TTAB LEXIS 457, at *7
(declining to consider applicant’s appeal brief where the brief “would undoubtedly exceed 25
pages if Applicant used double-spaced text, as required”).

Reexamination No. 2023-100842R for Registration No. 5904721
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II. Evidence of Record
Registrant submitted the following documentary evidence, supported by the
declarations of Edward Lee, Director of Pacific Pharmaceuticals:15
• A copy of the specimen submitted with Registrant’s Statement of
Use, described as “a photograph of a bottle of ESSENTIALE FORTE
supplements,” which, according to Mr. Lee, reflects the product as of
February 8, 2016;16
• A photograph, which, according to Mr. Lee’s declaration of February
16, 2024, shows “current ESSENTIALE FORTE PRODUCTS, taken
by a retailer in Queens, New York”;17
15 See February 17, 2024 Response to Nonfinal Reexamination Office Action at TSDR 4-5
(First Lee Declaration); November 15, 2024 Request for Reconsideration at TSDR 14-18
(Second Lee Declaration).
16 February 17, 2024 Response to Nonfinal Reexamination Office Action at TSDR 4 (First Lee
Declaration); see also September 10, 2019 Statement of Use at TSDR 1 (describing the
specimen as a “photograph of a dietary supplement baring [sic] the mark on a bottle label”).
17 February 17, 2024 Response to Nonfinal Reexamination Office Action at TSDR 5 (First Lee
Declaration); see also November 15, 2024 Request for Reconsideration at TSDR 16 (Second
Lee Declaration).

Reexamination No. 2023-100842R for Registration No. 5904721
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• Two sales invoices located by Mr. Lee, dated July 16, 2016, and
November 15, 2017, showing sales of “Pharma America – Essential
[sic] Forte Liver” in quantities of 5 units and 10 units respectively
from Success & Success International Limited to Hung Vu Auditor
LLC;18
18 See February 17, 2024 Response to Nonfinal Reexamination Office Action at TSDR 6-7 ;
see also November 15, 2024 Request for Reconsideration at TSDR 16 (Second Lee
Declaration).

Reexamination No. 2023-100842R for Registration No. 5904721
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• And an excerpt from https://pacificnatures.com, accessed on
November 15, 2024, which, according to Mr. Lee, shows that
“Registrant’s Goods bearing Registrant’s Mark are now available for
sale from [Registrant] to consumers in the United States.”19
19 November 15, 2024 Request for Reconsideration at TSDR 20.

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11
III. Arguments & Analysis
Registrant argues that the Examiner “has not met her burden of demonstrating
nonuse by a preponderance of the evidence,” asserting that she “ignore[d] or
discount[ed] the evidence of record, manufacture[d] use requirements not found in
the law, and fail[ed] to refute or distinguish the case law cited by Registrant
demonstrating that its evidence of use is sufficient to show bona fide use of
Registrant’s Mark in commerce.”20 Regarding the evidence of record, Registrant
contends that the original specimen of use, the two sales invoices, the photograph of
ESSENTIALE FORTE products on a retail shelf, the website excerpt, and the two
declarations from Mr. Lee, “taken together, and examined under proper legal
authority, is sufficient to demonstrate bona fide use of Registrant’s Mark in
connection with Registrant’s Goods on or before the Statement of Use Date.”21
The Examiner counters that Registrant’s “evidence fails to rebut the prima facie
case of nonuse” because it shows “at best, sporadic, casual, and de minimus [sic] use
that does not meet the standard for bona fide use of the mark in commerce with the
registered goods at the relevant time.”22
A. Sales Invoices
Turning first to the two sales invoices, we note, as the Examiner does,23 that they
are the only evidence, aside from the original specimen of use, that predates the
20 Registrant’s Appeal Brief, 6 TTABVUE 3.
21 Id. at 10 (italics removed).
22 Examiner’s Brief, 8 TTABVUE 3-4.
23 Id. at 4.

Reexamination No. 2023-100842R for Registration No. 5904721
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relevant date. And there are a number of issues with these invoices that diminish
their value as evidence of use of the registered mark by Registrant.
For one, the invoices do not show the registered mark ESSENTIALE FORTE.
Instead, they show a mark with a slightly different spelling, ESSENTIAL FORTE.
The Examiner has pointed this out,24 but the issue is not addressed in Registrant’s
briefs. Thus, Registrant has failed to explain why we should treat ESSENTIAL
FORTE as the equivalent of ESSENTIALE FORTE, and it is not our responsibility
to manufacture an explanation on Registrant’s behalf. Cf., e.g., DC Comics v. Cellular
Nerd LLC, No. 91246950, 2022 TTAB LEXIS 453, at *46 n.81 (“It is not the function
of the Board to scour the record in search of facts or evidence to support a party’s
position.”).
Not only do the invoices show a different mark, but they also list a seller other
than Registrant. That is, they identify the seller as an entity called Success & Success
International Limited (“Success”). Mr. Lee’s declaration confirms this, indicating
that, “prior to 2016, Success functioned as the original sales company for Registrant’s
Goods in the United States” and, “[a]fter 2016, although Registrant offered and sold
Registrant’s Goods to U.S. consumers, Success continued to issue the invoices to U.S.
consumers.”25 Further, the product description in both invoices appears to point to
yet another potential source of the goods: Pharma America.
24 Id. at 8 n.2.
25 November 15, 2024 Request for Reconsideration at TSDR 17 (Second Lee Declaration).

Reexamination No. 2023-100842R for Registration No. 5904721
13
Nonetheless, Registrant insists that the invoices show use by Registrant, or at
least use that inures to Registrant’s benefit,26 because, according to Mr. Lee’s
declaration, “Success is a sister company to Registrant, also fully owned and
controlled by the Toh Family, just like Registrant.”27 But, even if the two entities are
sister companies with the same parent owner, that alone does not dictate that they
are related companies such that use by Success inures to the benefit of Registrant.
See, e.g., In re Pharmacia, Inc., No. 73523579, 1987 TTAB LEXIS 93, at *6 (“We do
not believe the mere fact that two sister companies are both controlled by a third
company means that use by one of the sister companies automatically inures to the
benefit of the other sister.”). To be considered “related companies” for that purpose,
there must also be evidence that Registrant exercised appropriate control over the
nature and quality of the goods offered and sold by Success under the registered
mark. See Trademark Act Section 45, 15 U.S.C. § 1127 (“The term ‘related company’
means any person whose use of a mark is controlled by the owner of the mark with
respect to the nature and quality of the goods or services on or in connection with
which the mark is used.”); Great Seats, Ltd. v. Great Seats, Inc., No. 92032524, 2007
TTAB LEXIS 68, at *29-30 (finding sister corporations were not related companies in
the absence of evidence showing that the applicant corporation controlled the sister
corporation’s use of the mark as to the nature and quality of the services rendered
under the mark).
26 See Registrant’s Appeal Brief, 6 TTABVUE 5.
27 November 15, 2024 Request for Reconsideration at TSDR 17 (Second Lee Declaration).

Reexamination No. 2023-100842R for Registration No. 5904721
14
Here, nothing in Mr. Lee’s declarations, nor any other information in the record,
establishes the requisite control. The record also lacks any information that would
clarify the nature of Success’s functions or activities as the “original sales company
for Registrant’s goods,” such as whether Success was operating as Registrant’s
licensee or franchisee, or whether there was otherwise an arrangement between the
two as to the use of the mark or the nature and quality of the goods sold under the
mark. See, e.g., Sock It to Me v. Aiping Fan, No. 91230554, 2020 TTAB LEXIS 201, at
*11-14 (recognizing that use of a mark by a licensee may inure to the benefit of a
licensor if the licensor exercises sufficient control over the nature and quality of the
goods sold under the mark). We therefore have no basis to conclude that these
invoices, issued by Success and also referencing Pharma America, establish use by
Registrant of the mark on the identified goods.
Based on these issues alone, the invoices are of negligible value in establishing
Registrant’s use of ESSENTIALE FORTE in connection with the identified goods as
of the relevant date. But the Examiner’s main criticism of the invoices is that they
reflect two sales totaling only 15 units of Registrant’s goods to a single buyer, Hung
Vu Auditor LLC, with the second sale almost two years prior to the relevant date.28
According to the Examiner, these facts indicate not only token use by Registrant, but
use that is inconsistent with the ordinary course of trade in the supplements
industry.29
28 Examiner’s Brief, 8 TTABVUE 3-4.
29 See id.

Reexamination No. 2023-100842R for Registration No. 5904721
15
For its part, Registrant argues that, as indicated in Mr. Lee’s declaration, “small
amounts of sales to repeat customers are common in Registrant’s industry, which
consists of supplying nutraceuticals and supplements featuring traditional Burmese
ingredients and remedies to Myanma[r] communities in the United States.”30 The
Examiner, in turn, responds that Registrant’s narrowing of the relevant industry to
“a niche pharmaceutical, nutraceutical, and supplement industry catering to ethnic
minorities” is improper.31 We agree with the Examiner.
Use in commerce “contemplates commercial use of the type common to the
particular industry in question.” Paramount Pictures Corp. v. White, No.
91090130, 1994 TTAB LEXIS 14, at *20 (discussing the legislative history of the
Trademark Law Revision act) (emphasis added), aff’d without published opinion, 108
F.3d 1392 (Fed. Cir. 1997). In this case, the registration identifies the goods as
“Pharmaceutical preparations and substances for the treatment of hepatological
related diseases and disorders; Dietary supplements; Nutraceuticals for use as a
dietary supplement,” without any of Registrant’s asserted restrictions as to trade
channels or potential consumers. Thus, the relevant industry, or “particular industry
in question,” we must consider is the industry for pharmaceutical preparations,
nutraceuticals, and dietary supplements.32 And the question is whether Registrant’s
30 Registrant’s Appeal Brief, 6 TTABVUE 11.
31 Examiner’s Brief, 8 TTABVUE 4.
32 Registrant equates the Examiner’s refusal to narrow the relevant industry based on
restrictions not reflected in the registration’s identification to a finding “that Registrant has
not demonstrated bona fide use of the Registered Mark because it has not submitted evidence
of use of the Registered in Mark in all trade channels to all potential purchasers.”

Reexamination No. 2023-100842R for Registration No. 5904721
16
two sales totaling 15 units of supplements to a single purchaser is common to that
industry such that we may consider it bona fide use in the ordinary course of trade.
Cf. Everwise, 2026 TTAB LEXIS 118, at *29-30 (considering whether registrant,
whose registration listed various banking, credit union, and financial services, had
demonstrated use of the registered mark “in ways common to the credit union
industry”).
The record does not contain any evidence as to typical sales activities or sales
volumes within the supplements industry. But even in the absence of such evidence,
we cannot see how these two sales totaling 15 units of supplements to a single
purchaser for just under $55, and occurring 22 months (or more) before the relevant
date, is anything other than de minimis or token use, which is not typical of an entity
attempting to make bona fide use of the mark in connection with the goods in the
supplements industry. That remains true even if we accept that Registrant’s goods
are specifically directed to Myanmar communities in the U.S. Indeed, the Examiner
Registrant’s Reply Brief, 9 TTABVUE 4-5 (italics removed). This mischaracterizes the
Examiner’s position, which is that the relevant industry must be based on the goods as they
are identified in the registration. See Examiner’s Brief, 8 TTABVUE 4. We cannot limit the
identified goods to specific trade channels if the identification includes no such limitation.
See B&B Hardware v. Hargis Indus., 575 U.S. 138, 143 (2015) (“[I]f an ‘application does not
delimit any specific trade channels of distribution, no limitation will be’ applied.” (quoting 3
J. McCarthy, TRADEMARKS & UNFAIR COMPETITION §20:15, at 20-45 (4th ed. 2014))).
Likewise, we cannot limit the relevant industry to parameters defined by Registrant based
on the specific marketing or sales activities Registrant is engaged in if those parameters are
not reflected in the identification. Of course, evidence as to Registrant’s use of the mark and
the particular trade channels and classes of consumers for Registrant’s goods is relevant to
our analysis. After all, the purpose of defining the relevant industry is so that we may
determine whether Registrant’s use of the mark in connection with the goods is typical within
that industry. But Registrant asks us to conflate the relevant industry with Registrant’s
particular business model, which would essentially short-circuit that determination.

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17
provided evidence that, as of 2020, there were 276,322 Burmese Americans.33
Assuming the 15 units were ultimately sold to 15 different individuals in Registrant’s
targeted demographic, that represents, at most, sales to .005% of the Burmese
American population.
Registrant argues that there is “no rule of law that the owner of a trademark must
reach a particular level of success, measured either by the size of the market or by its
own level of sales, to have bona fide use of a mark in U.S. commerce and there is no
de minimis test for the ‘use in commerce’ requirement.”34 To support this argument,
Registrant cites to prior Board cases where bona fide use was found based on minimal
sales of the relevant goods.35
33 See Denial of Request for Reconsideration at TSDR 28-29. Registrant notes that the
Examiner’s evidence on this point consists of “a website screenshot with a QR code providing
access to the report supporting her premise, not the report itself.” Registrant’s Appeal Brief,
6 TTABVUE 13 n.3. Therefore, Registrant argues, we should not consider the report or any
contentions that are based on the report. Id. We have not considered the report, as it is not
of record. The population figure we cited is from the website screenshot itself. We also note
that, while we are relying on the truth of the contents of the website, Registrant does not
raise a hearsay objection and, in any event, the hearsay rule does not apply in ex parte
proceedings such as this. See, e.g., In re Epstein, 32 F.3d 1559, 1565 (Fed. Cir. 1994)
(explaining what hearsay rule does not apply in ex parte proceedings before the USPTO); In
re Hudson News Co., No. 74441602, 1996 TTAB LEXIS 16, at *16 n.10, aff’d without op., 114
F.3d 1207 (Fed. Cir. 1997) (“Although there is a hearsay element to this evidence, there is no
bias in the evidence which was not prepared for purposes of this case.”)
For its part, Registrant attached for the first time to its Appeal Brief evidence consisting of
a screenshot from worldpopulationreview.com. See 6 TTABVUE 23-24. “In an appeal from an
expungement or reexamination proceeding, no additional evidence may be included once an
appeal is filed . . . .” See Trademark Rule 2.142(d)(2), 37 C.F.R. § 2.142(d)(2); TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1305 (June 2025). Accordingly,
we have not considered this evidence.
34 Registrant’s Appeal Brief, 6 TTABVUE 19 (italics removed).
35 See id. at 19-20.

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18
We agree that the amount of sales under a mark is not always determinative, or
even particularly significant, when considering whether bona fide use of the mark
has been made. See Everwise, 2026 TTAB LEXIS 118, at *25 (“[T]he definition of
‘bona fide use’ should be interpreted with flexibility to encompass various genuine,
but less traditional, trademark uses, such as those made in test markets, infrequent
sales of large or expensive items, or ongoing shipments of a new drug to clinical
investigators by a company awaiting FDA approval . . . .” (citing Paramount Pictures
Corp. v. White, No. 91090130, 1994 TTAB LEXIS 14, at *20 n.8 )).
That said, each case must be decided on its own facts, in view of the record in its
entirety. See In re Nett Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“The Board
must decide each case on its own merits.”). And, here, in contrast to the cases cited
by Registrant, we find that the total of 15 units sold reflects the type of extremely
minimal use made to merely reserve a right in the mark, especially since there is
nothing about the inherent nature of the identified goods that would necessitate
selling them on an infrequent basis in such small quantities to a single purchaser.36
36 Registrant claims that the Examiner failed to distinguish any of the case law Registrant
cited in support of its arguments. See Registrant’s Appeal Brief, 6 TTABVUE 21 n.6. While
the Examiner did not specifically address every case cited by Registrant, she did
acknowledge, as we do above, that “there is no uniform minimum quantity of use required,
and no particular level of success required to be achieved in order to satisfy a valid claim of
use in commerce,” and explained that, in this case, the evidence of record showed a level of
sales that was inconsistent with the market for the identified goods. Examiner’s Brief, 8
TTABVUE 5. The Examiner also fully explained her position, with which we agree, that
Christian Faith Fellowship Church v. Adidas AG, 841 F.3d 986 (Fed. Cir. 2016), does not
support Registrant’s arguments with respect to bona fide use in the ordinary course of trade,
but instead addresses the question of whether “a low quantum of sales qualifies as commerce
that can be regulated by Congress.” Examiner’s Brief, 8 TTABVUE 4-5; see Adamson Sys.
Eng’g, Inc. v. Peavey Elecs. Corp., No. 92076586, 2023 TTAB LEXIS 454, at *38-39 (indicating

Reexamination No. 2023-100842R for Registration No. 5904721
19
See Everwise, 2026 TTAB LEXIS 118, at *24-25 (noting that the ‘bona fide use’
language in Trademark Act Section 45 was adopted because “[t]oken use, or ‘use made
merely to reserve a right in a mark,’ was criticized as ‘allow[ing] companies to obtain
registration based on ‘minimal use,’ in contrast to ‘commercial use’ (quoting S. Rep.
No. 535, 6, 100th Cong. 2d Sess. (1988))).
B. Other Evidence
The only other piece of evidence that predates the relevant date is the specimen
submitted with the Statement of Use. Acceptable documentary evidence of use of the
mark in commerce can include specimens of use filed pursuant to Trademark Rule
2.56, 37 C.F.R. § 2.56, but simply resubmitting the originally-submitted specimen
without additional supporting evidence generally does not rebut a prima facie case of
nonuse. See Everwise, 2026 TTAB LEXIS 118, at *6; Changes To Implement
Provisions of the Trademark Modernization Act of 2020, 86 Fed. Reg. 64,300, 64,304
(Nov. 17, 2021) (“As a general matter, because the registration file, including any
specimens, has already been considered in instituting the proceeding based on a
prima facie case of nonuse, merely resubmitting the same specimen of use previously
submitted in support of registration or maintenance thereof, or a verified statement
alone, without additional supporting evidence, will likely be insufficient to rebut a
prima facie case of nonuse.”); TMEP § 1716.04(c). Consistent with that general
that Christian Faith Fellowship Church concerned “the scope of commerce that may be
regulated by the U.S. Congress”).

Reexamination No. 2023-100842R for Registration No. 5904721
20
principle, we find here that the specimen submitted with the Statement of Use is
insufficient to rebut the prima facie case of nonuse.
The remaining evidence—the photograph of ESSENTIALE FORTE products on a
retail shelf and the retail website excerpt showing a bottle of ESSENTIALE FORTE
supplements—shows what Registrant characterizes as “current use.”37 That is, the
evidence demonstrates use of the mark that occurred well after the relevant date.38
Registrant notes that this “this evidence was not submitted to show use on or before
the Statement of Use Date, but rather to refute the Attorney Advisor’s argument that
the Registrant’s other evidence showed only token use of Registrant’s Mark, by
demonstrating Registrant’s continuous, ongoing, and good faith use of Registrant’s
Mark for Registrant’s Goods in the United States.”39 Even so, the fact remains that
the evidence must show use of the registered mark by Registrant as of the relevant
date and, as already discussed, the evidence here fails in that regard.40 Simply put,
if Registrant cannot establish use of the mark on or before the relevant date, then the
registration must be cancelled regardless of whether the mark is currently in use. See
Trademark Rule 2.93(a), 37 C.F.R. § 2.93(a) (indicating that a registrant in a
37 Registrant’s Reply Brief, 9 TTABVUE 7 (capitalization removed).
38 Mr. Lee’s declaration does not indicate when the photograph of the retail shelf was taken,
but he refers to the photograph as “[a]n image of a current ESSENTIALE FORTE
PRODUCTS [sic],” and the declaration is dated February 16, 2024. February 17, 2024
Response to Nonfinal Reexamination Office Action at TSDR 5 (First Lee Declaration); see
also November 15, 2024 Request for Reconsideration at TSDR 16 (Second Lee Declaration).
The excerpt from https://pacificnatures.com shows a screen capture date of November 15,
2024. See November 15, 2024 Request for Reconsideration at TSDR 20.
39 Registrant’s Reply Brief, 9 TTABVUE 7.
40 Examiner’s Appeal Brief, 8 TTABVUE 5.

Reexamination No. 2023-100842R for Registration No. 5904721
21
reexamination proceeding is required “to provide such evidence of use, information,
exhibits, affidavits, or declarations as may be reasonably necessary to rebut the
prima facie case of nonuse by establishing that the required use in commerce has
been made on or in connection with the goods and/or services at issue as of the date
relevant to the proceeding”).
Lastly, the Examiner notes that the record is devoid of evidence that “supports
use of the mark as of the relevant date in connection with ‘pharmaceutical
preparations and substances used for the treatment of hepatological related diseases
and disorders.’”41 On this point, the Examiner has provided evidence that
pharmaceuticals are strictly regulated because they are “the equivalent of medicinal
drugs”42 and thus they are qualitatively different from Registrant’s other identified
goods, “Dietary supplements” and “Nutraceuticals for use as a dietary supplement.”
Registrant objects to this line of argument, asserting that the Examiner “raises
this issue for the first time in her denial of Request for Reconsideration, leaving
Registrant no opportunity to substantively respond before the USPTO.”43 Thus,
“Registrant believes this ground for denial is improper and should be dismissed by
the TTAB.”
We disagree with Registrant that the Examiner’s argument is somehow a new or
separate “ground for denial,” or that it otherwise raises a new issue. The Examiner
41 Id.
42 Id. The Examiner’s supporting evidence was attached to the June 30, 2025 Denial of
Request for Reconsideration at TSDR 7-27.
43 Registrant’s Appeal Brief, 6 TTABVUE 7 n.2.

Reexamination No. 2023-100842R for Registration No. 5904721
22
merely pointed out in the Denial of Request for Reconsideration, in further support
of the finding of nonuse, that pharmaceuticals constitute a particular type of goods
and that use in connection with such goods was not reflected in the evidence
Registrant had submitted.44 This is entirely consistent with the first Nonfinal
Reexamination Office Action, which notified Registrant that it was required to
provide evidence of use for all of the goods listed in the registration.45 While
Registrant claims it had no opportunity to substantively respond to this argument,
the requirement to show use in connection with these goods existed from the outset.
Aside from that, Registrant could have substantively addressed the issue in its briefs,
but made no attempt to do so.46 Instead, Registrant stated that “to the extent that
the Board considers this basis for denial,” Registrant “is willing to delete the goods
‘Pharmaceutical preparations and substances for the treatment of hepatological
related diseases and disorders’ from the Registration to resolve this issue.”47 We note,
however, that while a registrant may delete goods from a challenged registration
44 October 31, 2023 Nonfinal Reexamination Office Action at 4.
45 Id. at 1-3.
46 We acknowledge that Registrant could not have submitted new evidence with its briefs or
requested remand to submit new evidence. See Trademark Rule 2.142(d)(2) (“In an appeal
from an expungement or reexamination proceeding, no additional evidence may be included
once an appeal is filed, and the Board may not remand for further examination.”); TBMP §
1305. Nonetheless, Registrant could have submitted substantive arguments as to why we
should find that the evidence of record does show use in connection with the identified
pharmaceuticals. Regardless, to the extent that Registrant’s objection pertains to the
Examiner’s evidence as to the general nature of pharmaceuticals and how they are regulated,
we need not rely on that evidence to find that record does not establish use of the mark in
connection with the identified “Pharmaceutical preparations and substances for the
treatment of hepatological related diseases and disorders.”
47 Registrant’s Appeal Brief, 6 TTABVUE 7 n.2; see also Registrant’s Reply Brief, 9 TTABVUE
7-8.

Reexamination No. 2023-100842R for Registration No. 5904721
23
during the pendency of an appeal to the Board from a reexamination proceeding,48
Registrant here has only offered to delete these goods and it is too late to delete them
once a final decision by the Board is issued. See TBMP § 1307 (indicating that goods
may be deleted from a registration “before the Board issues a final decision”).49
IV. Conclusion
Having reviewed the record and considered all evidence and arguments, we find,
based on a preponderance of the evidence, that Registrant has not demonstrated bona
fide use in commerce of its ESSENTIALE FORTE mark as a source indicator for the
Class 5 goods listed in the registration’s identification, as amended, on or before the
relevant date of September 12, 2019. Beyond the original specimen of use submitted
with the Statement of Use, the only evidence Registrant has submitted to show use
before the relevant date are two invoices that do not display the registered mark, list
a seller other than other than registrant, and reflect a total sale of 15 units to a single
48 As mentioned above, Registrant already deleted some of the goods from the registration’s
identification in response to the Examiner’s initial Office action. See February 17, 2024
Response to Nonfinal Reexamination Office Action at TSDR 1.
49 In any event, given our determination in this case, the potential deletion is moot, as the
entire registration will be cancelled.

Reexamination No. 2023-100842R for Registration No. 5904721
24
purchaser. Even when considered together with Mr. Lee’s declarations,50 this
evidence falls far short of rebutting the Examiner’s finding of prima facie nonuse.51
Decision: We affirm the Examiner’s finding, pursuant to the petition for
reexamination, that Registrant has failed to demonstrate bona fide use of the mark
in commerce on or before the relevant date. Accordingly, Registration No. 5904721
for the mark ESSENTIALE FORTE will be cancelled in its entirety in due course
under Trademark Act § 16B(g), 15 U.S.C. § 1066b(g).
50 In neither of Mr. Lee’s declarations does he directly state that the registered mark was in
use in commerce for any of the identified goods on or before the deadline for filing the
Statement of Use. In his first declaration, he states that Registrant “submitted a statement
of use . . . and in it, claimed that ESSENTIALE FORTE was first used in commerce in the
United States on February 8, 2016” and that the sales invoices he located show dates that
“are well in advance of the deadline to file a statement of use.” February 17, 2024 Response
to Nonfinal Reexamination Office Action at TSDR 4-5 (First Lee Declaration). In his second
declaration he repeats his statement regarding the claim of first use submitted with the
Statement of Use, and states that he “understand[s] that Registrant confirmed in its
Response and through my supporting declaration, that Registrant’s Mark was in use with
Registrant’s Goods in the United States as early as February 8, 2016.” November 15, 2024
Request for Reconsideration at TSDR 16 (Second Lee Declaration). Although the last
statement comes closest to stating that the mark was in use in commerce as of the relevant
date, it and all the other statements merely indicate that Mr. Lee is aware of the claim of
first use made by Registrant and not that he himself has actual knowledge that the mark
was used in commerce by Registrant as of the relevant date.
51 We acknowledge Mr. Lee’s statement that “political upheaval in Myanmar over the last
decade has rendered it difficult for Registrant to access and preserve its documentary
evidence of sales.” November 15, 2024 Request for Reconsideration at TSDR 17 (Second Lee
Declaration). However, we are constrained to decide this appeal on the evidentiary record
before us.