91293506•Scently LLC v. Scentacious, LLC
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THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: September 8, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Scently LLC v. Scentacious, LLC _____ Opposition No. 91293506 _____ Matthew L. Bycer of Bycer & Marion, PLC, for Scently LLC. Scentacious, LLC, appearing pro se.1 _____ Before Wellington, Elgin, and O’Connor, Administrative Trademark Judges. Opinion by Elgin, Administrative Trademark Judge: Scentacious, LLC (“Applicant”) seeks a registration of the mark SCENTLY in standard characters on the Principal Register in connection with “Fragrance for household purposes” in International Class 3.2 1 Scentacious, LLC appeared in this proceeding pro se through its representative Xavier Mottley. 2 Serial No. 98280124 was filed on November 21, 2023 based upon Applicant’s claim of first use anywhere as of January 1, 2000 and use in commerce since at least as early as January 1, 2023 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
Opposition No. 91293506 - 2 - Scently LLC (“Opposer”) filed a Notice of Opposition opposing registration of Applicant’s mark based on likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d) and fraud. In the operative Amended Notice of Opposition, Opposer claimed prior common law rights in the marks SCENTLY, , and for “fragrance for household purposes; Scented oils; Scented oils used to produce aromas; and Refills for electric diffusers for air fragrancing preparations.”3 In its Answer to the Amended Notice of Opposition (“Amended Answer”), Applicant filed a general denial along with “Specific Answers.”4 We discuss the Amended Answer in further detail in Section I, below. Opposer filed evidence and a main brief. Applicant did not file evidence or a brief, but it was not required to do so. Trademark Rule 2.128(a)(1), 37 C.F.R. § 2.128(a)(1); Yazhong Investing Ltd. v. Multi-Media Tech. Ventures, Ltd., No. 92056548, 2018 TTAB LEXIS 168, at *12 n.13 (defendant in inter partes proceeding is under no obligation to file a brief). Notwithstanding, Opposer must prove its entitlement to a statutory cause of action and grounds for opposition by a preponderance of the evidence. For the reasons set forth below, we dismiss the Notice of Opposition. 3 8 TTABVUE 2-3 (Amended Notice of Opposition ¶¶ 1-3). Citations refer to filings in the Board’s TTABVUE docket system. In re Integra Biosciences Corp., No. 87484450, 2022 TTAB LEXIS 17, at *6. 4 9 TTABVUE.
Opposition No. 91293506 - 3 - I. Claim Argued Before the Board As noted above, Opposer pleaded two claims for relief: likelihood of confusion under Section 2(d), and fraud based on “a false claim of first use predating the claim of use in Opposer’s initial application” in the subject application.5 Although Opposer filed evidence directed to the fraud claim, Opposer’s brief addresses only the likelihood of confusion claim.6 Insofar as Opposer has not argued the fraud claim in its brief, we find (in accordance with the Board’s usual practice) that the claim has been waived. Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., No. 92050879, 2013 TTAB LEXIS 347, at *6, aff’d mem., 565 Fed. Appx. 900 (Fed. Cir. 2014) (waiver by failure to pursue claims in brief); see also In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020) (“waiver is the intentional relinquishment or abandonment of a known right.”) (cleaned up).7 We dismiss the opposition as to that claim. II. The Record and Evidentiary Issues The record includes the operative pleadings and, pursuant to Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the file of the subject application. In addition, Opposer made of record the following evidence during its trial period: 5 8 TTABVUE 9 (Amended Notice of Opposition, ¶ 43). 6 See 21 TTABVUE 7 (“Statement of Issues” pertaining only to the Section 2(d) claim). 7 In any event, a false date of first use in an application, by itself, does not support a fraud claim because “the first use date is not material to the Office’s decision to approve a mark for publication.” Hiraga v. Arena, No. 92047976, 2009 TTAB LEXIS 73, at *15-16; accord W. Worldwide Enters. Grp. v. Qinqdao Brewery, No. 92017965, 1990 TTAB LEXIS 42, at *16 (“The Board repeatedly has held that the fact that a party has set forth an erroneous date of first use does not constitute fraud unless, inter alia, there was no valid use of the mark until after the filing of the application.”).
Opposition No. 91293506 - 4 - • Testimony Declaration of Matthew L. Bycer, Opposer’s attorney of record, and attached Exhibit B (statement of facts); and Exhibits X and Y (emails);8 • Testimony Declaration of Shmuel Palgon, President of Opposer Scently LLC and formerly President of Scently Inc., and attached Exhibits M-W and Z (photographs, emails, texts, and Internet website printouts);9 • Notice of Reliance on Opposer’s discovery requests to Applicant (Exhibits A and C);10 • Notice of Reliance on TSDR records of applications Serial Nos. 97082461 (Exhibits E and F) (the ’461 Application) and 98504680 (Exhibit G) (the ’680 Application);11 • Notice of Reliance on printouts from various Internet websites (Exhibits H-L).12 We first address the following evidentiary issues. A. Requests for Admission Attorney Bycer testified that he served Requests for Admissions upon Applicant on June 13, 2025 and received acknowledgement of receipt, but did not receive any 8 16 TTABVUE (“Bycer Decl.”). This declaration attaches “OPPOSER’s STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS BRIEF,” id. at 6-10 (Exh. B), which is improper attorney argument in a testimony declaration. These arguments should have been filed during Opposer’s briefing period. This declaration includes citations to certain exhibits that are said to be “attached,” but instead were filed under cover of the notices of reliance. 9 17 TTABVUE (“Palgon Decl.”). Like the Bycer Declaration, this declaration includes citations to certain exhibits that are said to be “attached,” but instead were filed under cover of the notices of reliance. 10 18 TTABVUE (“First NOR”). 11 19 TTABVUE (“Second NOR”). 12 20 TTABVUE (“Third NOR”).
Opposition No. 91293506 - 5 - responses or objections.13 Opposer’s First Requests for Admissions to Applicant were submitted under cover of a notice of reliance.14 Fed. R. Civ. P. 36(a)(3) provides that “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Applicant did not respond to Opposer’s requests for admission in any manner and does not dispute that it failed to do so. Consequently, the requests are deemed admitted by operation of law. Learning Journey Int’l v. Yongfu, No. 92082654, 2024 TTAB LEXIS 326, at *6-7 (citing Giersch v. Scripps Networks, Inc., No. 92045576, 2007 TTAB LEXIS 64, at *5). The effect of these admissions is that the subject matter of the requests is “conclusively established unless the [Board], on motion, permits the admission[s] to be withdrawn or amended” under Fed. R. Civ. P. 36(b) or reopens the time to respond to the admission requests “so that the admissions would not be deemed admitted as put.” Id. Applicant did not move to withdraw or amend the admissions, nor did it move to reopen the time to respond. Opposer’s requests for admission stand admitted, and the matters admitted under the requests are conclusively established despite any evidence to the contrary in the record. See Fed. R. Civ. P. 36(b); Learning Journey, 2024 TTAB LEXIS 326, at *10 (citations omitted). When matter has been conclusively established under Rule 36, it 13 16 TTABVUE 2-3 (Bycer Decl. ¶¶ 5-7). 14 18 TTABVUE 4-14 (First NOR Exh. A) (“RFA”).
Opposition No. 91293506 - 6 - is taken as a judicial, rather than an evidential, admission that “cannot be rebutted by contrary testimony or ignored by the [Board] simply because it finds the evidence presented by the party against whom the admission operates more credible,” and this “applies equally to those admissions made affirmatively and those established by default, even if the matters admitted relate to material facts that defeat a party’s claim.” Learning Journey, 2024 TTAB LEXIS 326, at *10 (quoting Am. Auto. Ass’n (Inc.) v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir. 1991)); see also Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 228, at *26-27 (in contrast to an evidentiary admission, “a judicial admission ... is incapable of refutation”). B. Applicant’s Answer to the Amended Notice of Opposition As noted above, Applicant filed a general denial of Opposer’s claims, as follows: In accordance with the provisions of 37 C.F.R. § 2.106, Applicant hereby files this its Answer to Opposer’s Amended Notice of Opposition and denies each and every allegation, averment, statement, and contention contained within said Opposition, as more fully set forth in the following paragraphs.15 Filing a general denial is permitted under the Trademark Rules of Practice. Trademark Rule 2.106(b)(2), 37 C.F.R. § 2.106(b)(2), provides that, in an answer, “[d]enials may take any of the forms specified in Rule 8(b) of the Federal Rules of Civil Procedure.”16 Rule 8(b)(3), in turn, provides that “[a] party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds— 15 9 TTABVUE 2 (Amended Answer ¶ 2). 16 Except as otherwise provided, the Federal Rules of Civil Procedure are made applicable to Board proceedings by Trademark Rule § 2.116(a), 37 C.F.R. § 2.116(a).
Opposition No. 91293506 - 7 - may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.” Fed. R. Civ. P. 8(b)(3). Despite its general denial, Applicant included 67 paragraphs of “Specific Answers,”17 six of which include the term “admits.” These are: 3. Applicant admits that Opposer’s products are sold under the stylized “SCENTLY” branding but denies the remaining allegations set forth in Paragraph 2. 25. The Applicant admits as stated in Paragraph 12 and 13, on or about November 23rd, 2023, the Applicant Founder Xavier Mottley caused application 98280124 to be filed with the U.S. Patent and Trademark Office, citing its listing of goods and services as “Fragrance for household purposes” in International Class 003. 33. With respect to Paragraph 15, Applicant admits that on or about April 17, 2024, an automated customer service response generated by the artificial intelligence software employed on Applicant’s website SCENT.LY was sent to the Opposer. 35. Applicant admits that while its initial sales activities were concentrated in the Midwest United States, its product roadmap contemplated expansion to the remaining contiguous United States, including Alaska and Hawaii, by the end of 2023. 38. With respect to Paragraph 18 of the Amended Opposition, Applicant admits the allegation that Applicant’s mark bears similarities to Opposer’s mark and that a likelihood of consumer confusion exists. Applicant submits that an analysis of the respective marks reveals a near identity in sound, connotation, and overall commercial impression. However, Applicant respectfully submits that the visual appearance of the marks presents discernible differences, which, while not dispositive of the issue of likelihood of confusion, should be afforded due weight in the determination thereof. Accordingly, Applicant acknowledges the plausibility of consumer confusion between the subject marks. 17 9 TTABVUE 2-18 (Amended Answer ¶¶ 3-67). To the extent any of these statements are intended as “affirmative defenses,” they are waived because Applicant did not pursue them at trial. See Harry Winston, Inc. v. Bruce Winston Gem Corp., No. 91153147, 2014 TTAB LEXIS 284, at *4-5 (defenses not pursued are deemed waived).
Opposition No. 91293506 - 8 - 56. With respect to the allegations contained in Paragraph 40 of the Amended Notice of Opposition, Applicant admits to the existence of SMS communications pertaining to a branding investment in SCENTLY North America in the approximate amount of $1,000,000 USD. Applicant specifically denies the accuracy of the time ascribed to said communication and further denies the characterization of the content of said communication as set forth in Paragraph 40.18 Thus, we construe the Amended Answer as denying all the allegations of the Amended Notice of Opposition except the facts above specifically admitted, under Rule 8(b)(3). An admission in an answer is considered judicial in nature and binding. See Reliable Contracting Grp., LLC v. Dep’t of Veterans Affairs, 779 F.3d 1329, 1334 (Fed. Cir. 2015) (“judicial admissions, which ‘have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact,’ are limited to formal admissions made in, for example, a complaint, answer, or pretrial order.”) (citation omitted); accord, Made in Nature, 2022 TTAB LEXIS 228, at *27. The Amended Answer also contains factual statements which are not “admissions” per se, but more aptly characterized as amplifications of Applicant’s denials. See JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 TTAB LEXIS 328, at *4 n.8 (citing Mars Generation, Inc. v. Carson, No. 91224726, 2021 TTAB LEXIS 386, at *4). Factual statements made in pleadings cannot be considered as evidence on behalf of the party making them; such statements must be established by competent evidence during the time for taking testimony. Philanthropist.com, Inc. v. Gen. Conference Corp. of Seventh-Day Adventists, No. 92065178, 2021 TTAB LEXIS 205, at *21. But admissions against interest in the pleadings are probative evidence. 18 See, e.g., 9 TTABVUE 3, 9, 10, 11, 15 (Amended Answer ¶¶ 3, 25, 33, 35, 38, 56).
Opposition No. 91293506 - 9 - Id. (“[S]tatements in pleadings may have evidentiary value as an opposing party’s statement.”); see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 704.06(a) (2026) (“statements in pleadings may have evidentiary value as admissions against interest by the party that made them.”). We have considered factual statements in Applicant’s Amended Answer that constitute admissions against Applicant’s interest. Finally, Applicant attached exhibits to its Amended Answer.19 Except in limited circumstances, which are not present here, an exhibit to a pleading is not evidence on behalf of the party to whose pleading the exhibit is attached unless identified and introduced in evidence as an exhibit during the period for the taking of testimony. Trademark Rule 2.122(c); Baseball Am., Inc. v. Powerplay Sports, Ltd., No. 91120166, 2004 TTAB LEXIS 443, at *4 n.6 (exhibits to pleading not evidence of record); see also TBMP § 317. Accordingly, these exhibits are not part of the record. III. Entitlement to a Statutory Cause of Action To establish statutory entitlement to oppose under Trademark Act Section 13, 15 U.S.C. § 1063, Opposer must demonstrate a real interest in the proceeding and a reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1372 (Fed. Cir. 2020); see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1275 (Fed. Cir. 2014); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1376 (Fed. Cir. 2012). 19 9 TTABVUE 20-64 (Amended Answer Exhs. 1, 2).
Opposition No. 91293506 - 10 - Opposer alleged that SCENTLY stylized marks have been the subject of two applications for registration, but only the ’680 Application for currently is pending.20 The ’461 Application, filed in October 2021 for the mark for “scented oils,” was abandoned in 2023.21 Opposer submitted copies of its pending pleaded application for the stylized mark for goods related to the goods identified in the application.22 Mr. Palgon also testified that Opposer has “established significant common law rights for the literal mark SCENTLY and its stylized marks (above) based on its long and extensive nationwide use in connection with fragrance and scent oils, refills, and apparati [sic] used to distribute such oils, etc.”23 This is sufficient to establish Opposer’s entitlement to bring this opposition under Trademark Act Section 2(d) based on its status as a competitor of Applicant. See Books on Tape, Inc. v. Booktape Corp., 836 F.2d 519, 520 (Fed. Cir. 1987) (finding 20 Serial No. 98504680 was filed April 17, 2024 for “Scented oils; Scented oils used to produce aromas when heated; Refills for electric diffusers for air fragrancing preparations,” under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), claiming first use as early as July 2021 and first use in commerce as early as December 2021. Second NOR Exh. G (19 TTABVUE 18-21). The mark is described as “the word ‘scently’ along with an abstract graphic of a flower set left of the word. 21 Serial No. 97082461 was filed October 19, 2021 for “Scented oils” under Trademark Act Section 1(a), claiming first use as early as July 1, 2021 and first use in commerce as early as October 1, 2021. The mark is described as “the word ‘scently’ in black along with an abstract graphic of a flower in pink next to the word.” The colors black and neon pink are claimed as a feature of the mark. 19 TTABVUE 4-7 (Second NOR Exh. E). 22 19 TTABVUE (Second NOR). 23 17 TTABVUE 4 (Palgon Decl. ¶ 9).
Opposition No. 91293506 - 11 - competitor has standing because it has an interest in the outcome beyond that of the general public); NT-MDT LLC v. Kozodaeva, No. 92071349, 2021 TTAB LEXIS 112, at *15 (“Petitioner has established ... that it ... is a competitor of Respondent ... [and] uses a mark with the same wording and design as the mark [in Respondent’s] ... registration;” therefore showing its entitlement to seek cancellation of Respondent’s mark); Double Coin Holdings Ltd. v. Tru Dev., No. 92063808, 2019 TTAB LEXIS 347, at *13 (standing is established by testimony, with exhibits, of use of similar mark). Having established entitlement as to at least one claim, Opposer also has satisfied the entitlement requirement for any other legally sufficient claim. Nike, Inc. v. Palm Beach Crossfit, Inc., No. 91218512, 2015 TTAB LEXIS 314, at *7. Moreover, Applicant did not challenge Opposer’s entitlement to a statutory cause of action. IV. Likelihood of Confusion “Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of a mark that ‘[c]onsists of or comprises a mark which so resembles a mark registered in the Patent or Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.’” Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139, at *10. “To prevail on its Section 2(d) claim, Opposer must show by a preponderance of the evidence that it has either a registration of or priority in its [SCENTLY-formative] mark[s], and that Applicant’s use of its mark is likely to
Opposition No. 91293506 - 12 - cause confusion, mistake, or deception regarding the source of the [goods] identified in its Application.” Id. (citation omitted). We turn first to the issue of priority. A. Applicant Applicant did not introduce any testimony or other evidence, but the filing date of the application constitutes Applicant’s constructive use date for priority purposes – that is, November 21, 2023. Trademark Act Section 7(c), 15 U.S.C. § 1057(c); see also Brewski Beer Co. v. Brewski Bros. Inc., No. 92021735, 1998 TTAB LEXIS 116, at *10, cited in Tao Licensing, LLC v. Bender Consulting Ltd., No. 92057132, 2017 TTAB LEXIS 437, at *11. Opposer made of record Applicant’s deemed admissions regarding Applicant’s first use of its mark to show that Applicant did not prove use before its November 21, 2023 constructive use date. Applicant admitted the following: • Applicant did not obtain rights to the URL www.scent.ly until after 2022. • Applicant did not have any marketing or advertising efforts for the SCENTLY mark outside the State of Texas before 2023. • The Specimen provided on Nov. 21, 2023 with Applicant’s Application including a picture of a bottle as an “Actual product” was not in use in commerce at the time of the Application. • Applicant did not adopt Applicant’s mark until 2022 or later. • Applicant did not make any use in commerce of Applicant’s Mark by offer or sale in interstate commerce before 2022. • Applicant made no use of Applicant’s Mark anywhere before 2020. • Applicant did not make any use in commerce of Applicant’s Mark until after 2022.
Opposition No. 91293506 - 13 - • Applicant did not make any use in commerce of Applicant’s Mark until after January 2, 2023.24 None of these admissions evidence Applicant’s use of its applied-for mark for any specific goods prior to Applicant’s constructive use date of November 21, 2023. Nor are there any admissions or admissions against interest in Applicant’s Amended Answer affecting its priority date. Applicant admitted that “while its initial sales activities were concentrated in the Midwest United States, its product roadmap contemplated expansion to the remaining contiguous United States, including Alaska and Hawaii, by the end of 2023,”25 but this vague statement is not sufficient to move the priority date back before November 21, 2023. Applicant asserted in its Amended Answer that, prior to filing its application it had imported goods into the United States and had completed sales to more than two thousand customers throughout the United States,26 but this self-serving statement is neither an admission against interest nor has it been supported by evidence. Nor does the Internet website evidence made of record by Opposer (from “The Wayback Machine” and the website at the domain name scent.ly) support an earlier priority date.27 Thus, we utilize November 21, 2023 as Applicant’s earliest priority date. 24 See 18 TTABVUE 10-11 (First NOR, RFA Nos. 3-10). 25 Id. at 10 ((Amended Answer ¶ 35). 26 9 TTABVUE 8-9, 10 (Amended Answer ¶¶ 24, 36). 27 20 TTABVUE 2 (Third NOR). The archived Wayback Machine evidence was not authenticated by testimony, and so we may rely on it only for what it shows on its face. State Permits, Inc. v. Fieldvine, Inc., No. 92075095, 2024 TTAB LEXIS 291, *10. These pages state variations of the phrase “the domain name scent.ly is for sale.” Id. at 4-21 (Third NOR Exhs. H-J).
Opposition No. 91293506 - 14 - B. Opposer Opposer must establish prior proprietary rights (i.e., priority) in a distinctive source identifier prior to November 21, 2023. Otto Roth & Co. v. Univ. Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981); see also DowntownDC Bus. Improvement Dist. v. Clarke, No. 91275100, 2024 TTAB LEXIS 412, at *37 (“To establish priority on a likelihood of confusion claim, a party must prove that, vis-à-vis the other party, it owns a mark or trade name previously used in the United States and not abandoned.”); Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002) (“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.”). To establish its priority, Opposer must establish that its marks are inherently distinctive or that they have acquired distinctiveness. Applicant did not challenge the distinctiveness of Opposer’s pleaded marks. We find, therefore, that the marks are distinctive as used with Opposer’s pleaded goods. See Giersch v. Scripps Networks, Inc., No. 92045576, 2009 TTAB LEXIS 72, at *9 (citing, inter alia, Wet Seal Inc. v. FD Mgmt. Inc., No. 91157022, 2007 TTAB LEXIS 21, at *14 (absent argument or evidence from applicant or elsewhere in the record, opposer’s mark deemed distinctive)). Opposer did not plead ownership of a prior registration but did plead ownership of two applications. An opposer may rely upon the filing dates of a prior pending application for priority purposes contingent upon the ultimate issuance of a registration. Larami Corp. v. Talk to Me Progs., Inc., No. 91085987, 1995 TTAB
Opposition No. 91293506 - 15 - LEXIS 13, at *14 n.7. But neither of the two pleaded applications qualify: Opposer’s later-filed ’680 Application does not form a basis for priority, and the prior ’461 Application filed by Scently Inc. was refused registration and abandoned.28 See Life Zone Inc. v. Middleman Grp., No. 91160999, 2008 TTAB LEXIS 37, at *21 (an opposer’s later-filed application does not provide a basis for priority); Kemi Organics, LLC v. Gupta, No. 92065613, 2018 TTAB LEXIS 149, at *17-18 (abandoned application is probative only to show it was filed). Both applications are relevant, if at all, only insofar as they bear on Opposer’s claim of prior actual use of its pleaded common law marks.29 Opposer argues it has common law use of its SCENTLY marks in interstate commerce from December 2021, and anywhere as early as July 2021.30 In support of its claim of common law priority, Opposer relies largely on Applicant’s deemed discovery admissions and the declaration of Mr. Palgon, along with the attached exhibits.31 We address these in turn, along with Applicant’s Amended Answer. 28 We address the apparent corporate conversion in note 32, infra. Unless otherwise noted, we refer to Opposer and Opposer’s predecessor collectively as “Opposer” in this opinion for ease of reference. 29 “Use in commerce” is not required to prove priority under Trademark Section 2(d). First Niagara Ins. Brokers, Inc. v. First Niagara Fin. Grp., Inc., 476 F.3d 867, 871 (Fed. Cir. 2007). Nonetheless, Opposer did not plead use analogous to trademark use, and thus we do not consider it here. DeVivo v. Ortiz, No. 91242863, 2020 TTAB LEXIS 15, at *8 n.10 (“Opposer has not pleaded use analogous to trademark use and Applicant has made clear that use analogous to trademark use is not an issue in this proceeding … [therefore] actual use in commerce is a requirement”); Cent. Garden & Pet Co. v. Doskocil Mfg. Co., No. 91188816, 2013 TTAB LEXIS 439, at *19 (reliance on priority through analogous use must be pleaded). Thus, actual use is the standard that Opposer must meet. 30 21 TTABVUE 9. 31 See id. Opposer’s brief refers to “facts” set forth in a chart in “OPPOSER’s STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS BRIEF,” 16 TTABVUE 6-10 (Bycer Decl. Exh. B) rather than to the evidence of record. As we stated above, this chart is argument that
Opposition No. 91293506 - 16 - 1. Admissions There are no admissions in Applicant’s Amended Answer regarding Opposer’s priority; indeed, Applicant plainly and repeatedly denied that Opposer has priority.32 The deemed admissions establish that Opposer “sold and marketed Scented oils; Scented oils used to produce aromas when heated; [and] Refills for electric diffusers for air fragrancing preparations in interstate commerce since at least as early as December 2021.”33 But critically, that admission does not identify the mark, if any, under which the goods in quotations were sold. The deemed admissions also prove that Opposer “established goodwill through its use in commerce of Opposer’s Marks throughout the United States by December should have been filed as part of Opposer’s brief, not as an exhibit to an attorney declaration filed during the testimony period. Nonetheless, we have consulted the chart to understand Opposer’s argument. Setting aside the untimeliness element, had the chart been included in Opposer’s brief, the brief would not have exceeded the 55-page limitation. Trademark Rule 2.128(b), 37 C.F.R. § 2.128(b). 32 See, e.g., 9 TTABVUE 5 (Amended Answer ¶ 9) (“there is no evidence to suggest that Opposer’s goods and services were in use in commerce regulable by the United States Congress prior to a date shortly after April 17, 2024, the filing date of trademark application Serial No. 98504680 with the United States Patent and Trademark Office.”). Applicant also denied Opposer’s common law priority due to the lack of a written assignment of common law rights in SCENTLY marks when Scently, Inc. converted to Scently, LLC, see 9 TTABVUE 7- 8 (Amended Answer ¶¶ 17-20); see also 17 TTABVUE 2-3 (Palgon Decl. ¶¶ 2, 3) (discussing a corporate restructuring from Scently Inc. to Scently LLC). Because Applicant did not assert this argument at trial, it has been waived. Nonetheless, even if the issue had been preserved, under Florida law, “[a]ll real property and other property owned by, including any interest therein and all title thereto, and every contract right possessed by, the converting eligible entity remain the property and contract rights of the converted eligible entity without transfer, reversion, or impairment,” FLA. STAT. § 607.11935(1)(a). A converted entity is “[d]eemed to be the same entity without interruption as the converting eligible entity.” Id. § 607.11935(1)(h)(2). Any common-law rights held by Scently, Inc. would have passed to Opposer without interruption. 33 18 TTABVUE 12 (First NOR, RFA No. 14). We note there are two requests for admission numbered 14 – this is the second one.
Opposition No. 91293506 - 17 - 2021.”34 But this admission does not identify the goods to which the claimed use pertains, or the type of use made. Common law trademark rights are established only when a mark is used for particular goods or services. They are not rights in gross. See Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 1374 (Fed. Cir. 1983). Read individually, the deemed admissions establish Opposer’s sales of specified goods under an unspecified mark as of December 2021 on one hand; and “use in commerce” of SCENTLY marks as of December 2021 as to unspecified goods on the other. Neither admission, standing alone, establishes use of the SCENTLY mark on any specific goods on any specific date. Nor do the admissions refer to each other, and the definitions in the Requests for Admission do not bridge the gap.35 Thus, we would have to infer a link between the use in commerce of the SCENTLY mark and the specified goods as of the claimed December 2021 date.36 We turn to the remaining evidence of record to determine if such an inference is justified. 2. Palgon Declaration Opposer relies on the testimony declaration of Mr. Palgon, its founder and president. The testimony even of a single witness may be adequate to establish 34 Id. at 12-13 (RFA No. 15). 35 “Opposer’s Mark(s)” are defined only as “Opposer’s SCENTLY Marks.” Id. at 10 (RFA Definitions ¶ 4). 36 Similarly, Applicant’s admissions that it knew “of Opposer and Opposer’s use of Opposer marks” prior to filing Applicant’s application or Applicant’s “offering any fragrance for household purposes in commerce,” id. at 13 (RFA Nos. 16, 17), do not establish Opposer’s use of its SCENTLY marks for specific goods as of December 2021, or indeed any time prior to November 21, 2023.
Opposition No. 91293506 - 18 - priority, but only if it is sufficiently probative. See Exec. Coach Builders, Inc. v. SPV Coach Co., No. 91212312, 2017 TTAB LEXIS 201, at *36. Such testimony should not be “characterized by contradictions, inconsistencies and indefiniteness,” but rather should carry with it “conviction of its accuracy and applicability.” Kohler Co. v. Baldwin Hardware Corp., No. 92041434, 2007 TTAB LEXIS 3, at *23 (citing B.R. Baker Co. v. Lebow Bros., 150 F.2d 580, 583 (CCPA 1945)). Testimony may be strengthened by supporting documentary evidence. Id. Mr. Palgon testified that he is the President of Scently LLC (and was President of Scently Inc. since 2021).37 He further attested: 3. Scently LLC is the owner of the Scently products, and rightful heir, assign, and successor to Scently Inc., including all of our goodwill and reputation. Even though we restructured our corporate entity, I led marketing and sales efforts in interstate commerce with our SCENTLY marks continually used and never abandoned our use of the Scently name and related marks since 2021, and maintained use in interstate commerce through the period 2021 until today. 4. We established its reputation in the household goods, and fragrance market. We also manufacture and sell fragrance for household purposes; Scented oils; Scented oils used to produce aromas; and Refills for electric diffusers for air fragrancing preparations, through our e-commerce platform and third-party online stores. 5. We register the URL domain www.scently.us on August 23, 2020, as corroborated in the WHOIS domain registry listing at https://www.whois.com/whois/scently.us (accessed October 13, 2025) submitted herewith as Exhibit Z. 6. We adopted a SCENTLY mark and applied it on goods at least as early as July 2021. We sell our marked goods on e-commerce platforms, and our own website. Based on our use in commerce, I filed an application for our logo mark SCENTLY (Appl. 97082461) on Oct. 19, 2021, and filed such application pro se. A true and correct copy of the TSDR record is attached as Exhibit E. 37 17 TTABVUE 2 (Palgon Decl. ¶ 1).
Opposition No. 91293506 - 19 - 7. Our use of our SCENTLY marks Mark [sic] has been valid and continuous in interstate commerce since the dates of first use of as least as early as October 2021. We have not abandoned our Scently marks. 8. Our products are sold under a SCENTLY brand line (with and without stylization) and have been and continue to be marketed, advertised, and sold under and in connection with our SCENTLY brands. We have significant common law rights as our products are marketed in the literal name SCENTLY, and stylized SCENTLY mark (below), both colored and without color. 9. We, through its use of our SCENTLY Marks, have established significant common law rights for the literal mark SCENTLY and its stylized marks (above) based on its long and extensive nationwide use in connection with fragrance and scent oils, refills, and apparati [sic] used to distribute such oils, etc. 11. Opposer’s Mark is symbolic of extensive goodwill and consumer recognition built up by Opposer during substantial amounts of time and effort in use, advertising, and promotion. Opposer’s Mark identifies and distinguishes Opposer’s goods from the goods and services of others and identifies the source and origin thereof to both the trade and the public. 15. We have priority to use a SCENTLY mark in interstate commerce over-and-above Applicant Scentacious based on our earlier adoption and procurement of goodwill …. Our common law rights date to our launch in 2021, and our intent to secure such rights is evident in our above- referenced applications. …. 18. We have established significant goodwill and reputation throughout the United States in our Scently marks. 20. We have obtained and satisfied customers, and shipped products to forty-six of the United States. Our reputation and goodwill is significant and is built on our brand recognition of the Scently marks which have been prominently marketed and advertised continuously since 2021.
Opposition No. 91293506 - 20 - 21. Our marketing efforts reach through the Internet to every State, and our marketing efforts include targeted advertisements throughout the United States, including roadside advertising .…38 The declaration evidence suffers from many of the same deficiencies as the deemed admissions: • Paragraphs 6 and 7 do not specify the goods on which Opposer used the SCENTLY mark in July (which comports with Opposer’s claim of “first use anywhere” in its application) or October 2021. • Paragraph 6 states that Opposer first applied the mark on goods in July 2021, but nothing about selling those goods. On the other hand, this paragraph, as well as Paragraph 4, state that Opposer “sell[s]” (present tense) such goods on Opposer’s website and e-commerce platforms. • Paragraphs 8 and 20 do not define the “products” sold under a SCENTLY mark. • Paragraph 8, like Paragraph 6, states that: “Our products are sold [present tense] under a SCENTLY brand line (with and without stylization) and have been [without a time period] and continue to be [present tense] marketed, advertised, and sold under and in connection with our SCENTLY brands.” Similarly, Paragraph 21 regarding marketing efforts is stated in the present tense. • Paragraph 9, on the other hand, addresses “long and extensive nationwide use” in connection with specific products, but this testimony is vague and nonspecific as to time period. • Paragraph 11 discusses “substantial amounts of time and efforts,” but does not supply any specifics. • Paragraphs 3, 11, 15, 18, and 20 refer to Opposer’s “goodwill” built on advertising and marketing since 2021, but not as to any specific “products.” • The dates in July and October 2021 in Paragraphs 6 and 7 conflict with Opposer’s other evidence and allegation that it has priority based on use in commerce from December 2021. 38 Id. at 3-5 (Palgon Decl. ¶¶ 3-9, 11, 15, 18, 20-21).
Opposition No. 91293506 - 21 - Frankly, it is surprising that there is no single direct statement, or combination thereof, in the Palgon testimony declaration that says, simply, “Opposer has been selling [specific products] in commerce under the mark SCENTLY since [month, date], 2021.” Mr. Palgon’s testimony is phrased in the present tense (i.e., “we sell,” “we operate”). The declaration is vague, inconsistent, and confusing. So again, we would have to read between the lines of the declaration and draw inferences that Opposer sold fragrances; scented oils; apparatuses (which we infer are fragrance diffusers) and refills for diffusers under one of Opposer’s SCENTLY-formative marks since some date in 2021.39 This unchallenged testimony might be sufficient, despite its vague and confusing nature, if Opposer had supplied some documentary evidence to back up its claims and bolster the required inferences. But, as we discuss below, it did not do so. In fact, the supporting documents raise more questions than they answer. 3. Documentary Evidence The documentary evidence attached to Mr. Palgon’s declaration falls into several categories: (1) photographs; (2) records pertaining to a registration for the domain name scently.us; and (3) printouts from that website. 39 To be clear, the unexplained inconsistencies in the dates do not matter merely because we cannot determine which date or dates are correct; any of these dates would predate Applicant’s 2023 priority date. Rather, the varying dates matter because the lack of specificity goes to the credibility of the testifying witness and the reliability of the declaration as a whole.
Opposition No. 91293506 - 22 - a. Photographs There are two photographs attached to the declaration. First, Mr. Palgon testified that: “An early version of our marked product with a Scentl mark, taken at least as early as December 2021, is shown in situ in Exhibit M.”40 This photograph is shown below, with the markup in original: 41 40 17 TTABVUE 6 (Palgon Decl. ¶ 16). 41 Id. at 12 (Palgon Decl. Exh. M).
Opposition No. 91293506 - 23 - When we crop and enlarge this photograph, we see that the device (which we take to be a fragrance diffuser) is branded with the wrong mark – SCENTL, not SCENTLY: This aligns with Mr. Palgon’s testimony above that the product had “a Scentl mark.”42 The SCENTL mark on the product is a different mark from the pleaded SCENTLY marks, and a plaintiff may not establish priority in an unpleaded mark. Cf. Odom’s Tenn. Pride Sausage, Inc. v. FF Acquisition, LLC, 600 F.3d 1343, 1346 (Fed. Cir. 2010) (Board was not required to consider unpleaded common law marks in dismissing notice of opposition on summary judgment). In any event, even crediting the photograph as authentic, it is a photograph of a mis-marked device “in situ” on a furnace room floor, alleged to have been taken “as early as December 2021.”43 The photograph does not establish, without supporting 42 Id. at 6 (Palgon Decl. ¶ 16). 43 In these days of digital photographs and metadata, it is somewhat surprising that the person who captured this image could not provide the exact date it was taken.
Opposition No. 91293506 - 24 - testimony, that the depicted mis-marked “early” product was being offered for sale at the time the photograph was taken, whenever that was. Rather, the photograph and testimony suggest that the device shown in the photograph was a mis-marked prototype. Our supposition is backed up by the ’461 Application that Mr. Palgon caused to be filed in October 2021 for the mark in connection with “scented oils” in Class 3, purportedly “[b]ased on our use in commerce.”44 Mr. Palgon testified that the application was abandoned because “I failed to properly respond to an issue regarding a matching specimen ….”45 The Examining Attorney refused the ’461 Application on two bases, both concerning the specimen of use. First, the Examining Attorney found that the specimen does not show the applied-for mark as actually used in commerce in connection with any of the goods and/or services specified in International Class 003 … Specifically, the specimen of record displays and is identified by applicant as showing “a device that Scently has developed to enable the spraying of essential oil to help fragrance the home.” However, the identification of goods covers “scented oils” not essential oil devices. Thus, the specimen does not show the proposed mark as actually used in commerce in connection with any of the goods identified in International Class 003.46 Thus, although Opposer applied for the mark for “scented oils,” the specimen of use was a photograph of a diffuser – possibly, given the timing, the same diffuser 44 17 TTABVUE 3 (Palgon ¶ 6); 19 TTABVUE 4-7 (Second NOR Exh. E). 45 17 TTABVUE 4 (Palgon ¶ 12). 46 19 TTABVUE 10 (Second NOR Exh. F).
Opposition No. 91293506 - 25 - pictured above in the furnace photograph.47 Our theory that the specimen of use showed the same mis-marked product as in the photograph is borne out by the second reason for refusal: [T]he specimen appears to consist of a digitally created or altered image or a mockup of a depiction of the mark on the goods or their packaging and does not show the applied-for mark as actually used in commerce in International Class 003. … In this case, the letter “Y” of the word “SCENTLY” appears to have been drawn or superimposed onto the goods displayed and is not on with [sic] the flower design and wording “SCENTL.” Therefore, the specimen does not show actual use of the mark in commerce.48 In other words, the Examining Attorney asserted that Opposer had digitally inserted a “Y” after the mark SCENTL appearing on the product. After receiving this refusal, Opposer abandoned the ’461 Application rather than substituting an acceptable specimen. In short, we cannot draw the necessary inferences that Opposer was offering any products for sale under a SCENTLY-formative mark in 2021 based on the furnace photograph, which does not even show the SCENTLY mark. Indeed, the history recounted above relating to Opposer’s abandoned application could explain the vagueness and inconsistencies in Mr. Palgon’s sworn testimony in this proceeding. For all these reasons, the furnace photograph does not support Opposer’s priority claim. 47 17 TTABVUE 6 (Palgon Decl. ¶ 16). Unfortunately, the specimen of use is not in the record, nor can we take judicial notice of it. See Trademark Rules 2.122(d) and 2.122(e), 37 C.F.R. §§ 2.122(d), 2.122(e); see also Flame & Wax, Inc. v. Laguna Candles, LLC, No. 92072343, 2022 TTAB LEXIS 272, at *42-43 n.57 (“The Board’s well-established practice is not to take judicial notice of USPTO records”). 48 19 TTABVUE 11 (Second NOR Exh. F).
Opposition No. 91293506 - 26 - Next, Mr. Palgon supplied a photograph of a billboard advertising Opposer’s product, which he described as follows: Our marketing efforts reach through the Internet to every State, and our marketing efforts include targeted advertisements throughout the United States, including roadside advertising. For instance, we established a billboard at or near 4006 E. Speedway Blvd., in Tucson, Arizona. Submitted herewith, Exhibit N is a photograph of our recent billboard taken on or about August 2024 in Arizona, noting our e- commerce website at scently.us.49 This photograph, which displays a diffuser device similar in appearance to the “early” device shown in the furnace photograph above, is reproduced below: 50 49 17 TTABVUE 6 (Palgon Decl. ¶ 21). 50 Id. at 13-14 (Palgon Decl. Exh. N).
Opposition No. 91293506 - 27 - Missing from the declaration and billboard photograph is any indication of when the billboard was erected (e.g. how long it had been in place prior to the photograph taken in August 2024). Moreover, the mark appears in the photograph only in the domain name scently.us. Use of a mark in a domain name does not give rise to trademark rights when it indicates only an address on the internet and not the source of the goods. See In re Supply Guys, Inc., No. 77027094, 2008 TTAB LEXIS 12, at *16 (“Obviously, a website can be used for multiple purposes and the simple fact that a term is used as part of the internet address does not mean that it is a trademark for the goods sold on the website”); Exec. Coach, 2017 TTAB LEXIS 201, at *81 (“Considering Opposer’s use of the domain names … these names per se merely indicate Internet addresses where Opposer’s websites offering vehicles under the EXECUTIVE COACH mark could be found. Here, the domain names do not separately identify Opposer’s goods or retail sales services”). Moreover, when we enlarge the photograph of the device on the billboard, it appears to have been digitally altered to remove or blur a mark on the device:
Opposition No. 91293506 - 28 - 51 We cannot determine whether the apparent alteration is in the original billboard or whether it was made to the photograph. The photograph above bears the word “crop” on the top, suggesting it may have been altered in some way from the original (though cropping alone would not necessarily mean that the matter visible in the image had been changed from its original appearance).52 Either way, the billboard advertisement does not bear the mark SCENTLY, and there is no testimony to establish a definite time period of use. In short, the Palgon testimony and billboard photograph do not give us any confidence that Opposer was selling diffusers, or any other products, under a SCENTLY mark prior to November 21, 2023. 51 Id. 52 See supra image at note 50.
Opposition No. 91293506 - 29 - b. Domain Name Registration and Website Printouts We turn next to the evidence of the registration of Opposer’s domain name and its website.53 Mr. Palgon testified as follows: 5. We register [sic] the URL domain www.scently.us on August 23, 2020, as corroborated in the WHOIS domain registry listing at https://www.whois.com/whois/scently.us (accessed October 13, 2025) submitted herewith as Exhibit Z. 6. …We sell our marked goods on e-commerce platforms, and our own website. …. 22. We operate an e-commerce website as shown in the attached screenshots. A true and correct copy of https://scently.us/ products/cinematic-cinnamon-fragrance only (accessed April 17, 2024) is submitted as Exhibit O, while a current true and correct copy of the same site as it is currently published at https://scently.us/ products/cinematic-cinnamon-fragrance-only (accessed October 12, 2025) is submitted as Exhibit P. 23. A true and correct copy of a current e-commerce listing of our fragrance décor item found at https://scently.us/products/cloud- nineflower?variant=41076434731077 (accessed October 12, 2025) is submitted as Exhibit Q. 24. A true and correct copy of a current e-commerce listing of our diffuser device item found at https://scently.us/porducts/the-rocket-mint-color (accessed April 17, 2024) is submitted as Exhibit R.54 The only activity described in this testimony that predates Applicant’s constructive use priority date is Opposer’s domain name registration on August 23, 2020. The mere registration of a domain name does not constitute use of a trademark. Stawski v. Lawson, No. 94002621, 2018 TTAB LEXIS 438, at *27-28 (citing Brookfield Comms., Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1051 (9th Cir. 53 17 TTABVUE 50-56 (Palgon Decl. Exh. Z). 54 Id. at 3, 6 (Palgon Decl. ¶¶ 5-6, 22-24).
Opposition No. 91293506 - 30 - 1999) (“Registration [of a domain name] with [domain name registrar], however, does not in itself constitute ‘use’ for purposes of acquiring trademark priority.”)). The printouts from this website supplied by Mr. Palgon were created in 2024 and 2025.55 The earliest of these is April 17, 2024, which show the offering for sale of Opposer’s “Rocket” diffuser and refill scents.56 There is no supporting testimony or evidence that indicates that the website at scently.us was active and selling SCENTLY-branded products prior to Applicant’s constructive priority date, November 21, 2023; and if it was, there is no proof what those products were. In short, neither the domain name registration nor the website printouts support Opposer’s claim of priority. C. Conclusion on Priority “[T]he decision as to priority is made in accordance with the preponderance of the evidence.” Hydro-Dynamics, Inc. v. George Putnam & Co., 811 F.2d 1470, 1472 (Fed. Cir. 1987). “[W]hether a particular piece of evidence by itself establishes prior use is not necessarily dispositive as to whether a party has established prior use by a preponderance. Rather, one should look at the evidence as a whole, as if each piece of evidence were part of a puzzle which, when fitted together, establishes prior use.” W. Fla. Seafood, Inc. v. Jet Rests., 31 F.3d 1122, 1125-26 (Fed. Cir. 1994) (cautioning against dissecting evidence). 55 See id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R) (websites printed April 17, 2024); id. at 22-32 (Palgon Decl. Exhs. P, Q) (website printed October 12, 2025). 56 Id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R).
Opposition No. 91293506 - 31 - Considering the evidence as a whole, we find that Opposer has failed to prove its priority of common law use by a preponderance of the evidence. The earliest date of first use we can confidently determine is April 2024, when the website printouts show the offering for sale of Opposer’s diffuser and refill scents.57 It is not enough to show that Opposer may have done business under a SCENTLY mark without showing the goods with which the mark was used in commerce and when. We are influenced both by what is in the record and what is missing. The deemed admissions don’t quite get Opposer there. Mr. Palgon’s declaration is vague, inconsistent, contradictory, and wholly unsupported by the documentary evidence. Although he testified that Opposer has “shipped products to forty-six of the United States,”58 there are no orders, invoices, or other sales records to back up this broad claim or put a time frame around it. Mr. Palgon testified that Opposer’s domain name scently.us was registered in 2020, but the only printouts of the operational website were printed years later in April 2024 and October 2025. The photographs (furnace, billboard) do not show the pleaded marks on Opposer’s goods or prove sales of any goods under those marks. These issues alone are sufficient for us to conclude that Opposer has not carried its burden of proving, by a preponderance of the evidence, that the SCENTLY marks were in use for the pleaded goods before November 21, 2023. But the evidence also raises troubling questions as to whether the billboard photograph, or (as the 57 Id. at 15-21, 33-39 (Palgon Decl. Exhs. O, R). 58 Id. at 5 (Palgon Decl. ¶ 20).
Opposition No. 91293506 - 32 - Examining Attorney found) the specimen of use supporting the abandoned ’461 Application, were digitally altered. This casts further doubts on the reliability of Mr. Palgon’s testimony. In light of all of these issues with the limited record before us, we are not willing to draw the necessary inferences from the deemed admissions and the testimony. We find the evidence of record is not sufficiently definite and consistent, and not supported by documentary evidence, to demonstrate Opposer’s priority of use before the filing dates of the application. See Mars Generation, 2021 TTAB LEXIS 386, at *23 (probative value of testimony regarding use “significantly undermined” by witness’ utter lack of detail); H. Betti Indus. v. Brunswick Corp., 1981 TTAB LEXIS 75, *25-26 (no number in original) (vague, indefinite, and inconsistent testimony not accompanied by documentary evidence inadequate to support priority claim). Having failed to establish priority by a preponderance of the evidence, Opposer cannot prevail on its likelihood of confusion claim. Exec. Coach, 2017 TTAB LEXIS 201, at *89. Decision Opposer’s opposition to registration of Serial No. 98280124 based on likelihood of confusion and fraud is dismissed.
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