THIS OPINION IS NOT A
PRECEDENT OF
THE TTAB

Mailed: November 6, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

United Social Sports, Inc.
v.
Major League Bocce, LLC
_____

Cancellation No. 92060936

_____

Kevin J. McNeely of Browdy & Neimark PLLC,
for United Social Sports, Inc.

Benjamin N. Simler and Emily J. Cooper of Holland & Hart LLP,
for Major League Bocce, LLC.
_____

Before Cataldo, Bergsman, and Ritchie, Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Major League Bocce, LLC (“Respondent”) owns Registration No. 3956136

(the “136 Registration”) on the Supplemental Register for DC BOCCE

LEAGUE, in standard character format, for “Coordination of recreational

sporting opportunities for individuals who wish to participate in team league
Cancellation No. 92060936

sports,” in International Class 35,1 disclaiming the exclusive right to use

“BOCCE LEAGUE” apart from the mark as shown, which registration was

issued on May 3, 2011. Respondent also owns Registration No.4221456 (the

“456 Registration”) on the Principal Register for the same mark and

identified services, issued on October 9, 2012. The 456 Registration also

disclaims the exclusive right to “BOCCE LEAGUE,” and claims acquired

distinctiveness in the mark as a whole under Section 2(f) of the Trademark

Act, 15 U.S.C. § 1052(f).2 As discussed herein, both registrations were filed

by another corporation and later assigned to Respondent.

United Social Sports, Inc. (“Petitioner”) has petitioned to cancel both the

136 Registration and the 456 Registration. In its amended petition for

cancellation, Petitioner asserts that Respondent is not the true owner of

either the 136 Registration or the 456 Registration. Petitioner further alleges

that the mark in the 456 Registration is at least merely descriptive and has

not acquired distinctiveness. Petitioner also alleges fraud by Respondent in

the assignment of the 136 Registration and the 456 Registration from the

assignor corporation as well as in the filing of the application that matured

1 Registration No. 3956136 issued from Serial No. 85010004, filed April 5, 2010 and
based on dates of first use and first use in commerce of August 1, 2005. Section 8
Affidavit accepted.
2 Registration No. 4221456 issued from Serial No. 85546786, filed February 18, 2012

and based on dates of first use and first use in commerce of August 1, 2005. Section
8 Affidavit accepted.

2
Cancellation No. 92060936

into the 456 Registration with regard to its claim of Section 2(f) acquired

distinctiveness.3

The answer to the amended petition denies the salient allegations, except,

as discussed below in “Standing,” regarding Respondent’s actions in sending

letters and take down requests with regard to Petitioner’s alleged

infringement of Respondent’s marks.4

Both parties filed briefs, and Petitioner filed a reply brief.

I. The Record and Evidentiary Issues

The record consists of the pleadings and the files of the involved

registrations. Additionally, the Board discussed the evidence of record, and

ruled on Respondent’s motion to strike in orders dated October 2, 2017 and

December 20, 2017.5 As a result, the following have been deemed to be of

record.

By Petitioner:

1. Petitioner’s Notice of reliance no. 2, exhibit I only, consisting of pages

from Respondent’s website.6

3 To the extent the petition alleged other grounds for cancellation, they were not
pursued, and are waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tour Inc.,
107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner’s pleaded descriptiveness and
geographical descriptiveness claims not argued in brief deemed waived); aff’d, 565 F.
App’x 900 (Fed. Cir. 2014) (mem.); Knight Textile Corp. v. Jones Inv. Co., 75 USPQ2d
1313, 1314 n.4 (TTAB 2005) (pleaded dilution ground not pursued on brief deemed
waived).
4 26 TTABVUE 4 (paragraphs 15, 17, 19).
5 52 TTABVUE and 57 TTABVUE. The motions were fully briefed. In addition to

filing its motions to strike, Respondent filed a motion to amend it application, which
we discuss, infra.
6 31 TTABVUE 31-37.

3
Cancellation No. 92060936

2. Petitioner’s Notice of reliance no. 4, consisting of government records

from the District of Columbia and corporate documents.7

3. Petitioner’s Notice of reliance no. 5, consisting of government records

from the District of Columbia, corporate documents, web evidence and

Respondent’s supplemental responses to Petitioner’s requests for admission.8

4. Petitioner’s Notice of reliance no. 8, consisting of web evidence in the

form of screenshots taken from the Internal Revenue Service (IRS) website.9

5. Petitioner’s Notice of reliance no. 9, consisting of Respondent’s

supplemental responses to Petitioner’s requests for admission; Respondent’s

supplemental responses to Petitioner’s interrogatories; and Respondent’s

supplemental responses to Petitioner’s requests for production of

documents.10

6. Testimonial deposition of Robert Kinsler, a representative of Petitioner,

and of Rachael Preston, the Managing Partner of Respondent, both dated

January 3, 2017.11 .

By Respondent:

1. Respondent’s Notice of reliance, consisting of printed publications and

web evidence, as well as Petitioner’s supplemental responses to

interrogatories, to demonstrate Respondent’s “acquired distinctiveness in its

7 33 TTABVUE.
8 34 TTABVUE.
9 37 TTABVUE.
10 38 TTABVUE.

4
Cancellation No. 92060936

registered ‘DC BOCCE LEAGUE’ marks, and of its exclusive and continuous

use of the mark in commerce.”12

2. Testimonial declaration of Sarah DeLucas, co-owner of Respondent,

dated June 23, 2017, with exhibits thereto.13

In its brief, Respondent made a number of evidentiary objections to the

testimony and documents submitted by Petitioner. Many of these were

already ruled on in the October 2, 2017 and December 20, 2017 orders by the

Board. Respondent does not convince us that we should revisit those

rulings.14 We further note that to the extent Respondent’s objections go to the

probative value of evidence, we accord the evidence of record such probative

value as it may have.

II. Background Findings and Respondent’s Motion to Amend

In order to clarify the issues in this case, we make the following

background findings. Petitioner organizes activities and social sports leagues,

which encompass various sports, including bocce.15 Petitioner operates under

the mark Capital Bocce in the market area around the District of Columbia.16

11 53 TTABVUE. The exhibits attached to the depositions were struck pursuant to
the Board’s December 20, 2017 order (57 TTABVUE 5). The exhibits are of record
only to the extent they were otherwise made of record.
12 41 TTABVUE.
13 47 TTABVUE, with confidential documents and testimony available at 46

TTABVUE.
14 Nor do we construe Respondent’s objections as an untimely request for

reconsideration of those orders. See 37 C.F.R. § 2.127(b).
15 53 TTABVUE 8.
16 53 TTABVUE 9.

5
Cancellation No. 92060936

Respondent also operates bocce leagues in the market area around the

District of Columbia.17 In this market, Respondent does business under the

name DC Bocce League, which is a trade name under which Respondent

operates.18 As noted by Respondent’s co-owner, Ms. Preston, previously,

“[t]here was a nonprofit corporation registered in the District of Columbia by

the name DC Bocce League.”19 The nonprofit entity DC Bocce League was

incorporated in 2004.20 Its corporate status was revoked by the District of

Columbia in 2007.21 However, as Ms. Preston states, the business “did

continue to operate without knowledge that the status was revoked during a

three-year period of 2008, 2009, and 2010.”22

In 2010, as Ms. Preston states, after the application that matured into the

136 Registration was filed, Respondent “took over operations for leagues

previously operated by DC Bocce League, a nonprofit corporation.”23 Ms.

Preston further notes that as part of the process of the nonprofit’s

dissolution, it “transferred all of its assets to [Respondent], including all

rights in the DC BOCCE LEAGUE mark and the then-pending application

for registration of the DC BOCCE LEAGUE mark.”24

17 53 TTABVUE 32.
18 53 TTABVUE 32. See also 47 TTABVUE 5, and Exhibit 9.
19 53 TTABUVE 34.
20 47 TTABVUE 2.
21 34 TTABVUE 26, 29-30.
22 53 TTABVUE 50-51.
23 53 TTABVUE 36.
24 47 TTABVUE 4, and Exhibit 7; Assignment Reel 4736/Frame 0372.

6
Cancellation No. 92060936

Respondent was created pursuant to a Certificate of Formation as a

Delaware LLC on April 28, 2010.25 Ms. DeLucas, a co-owner of Respondent,

was the Secretary of the nonprofit entity.26 Ms. Preston was also an officer of

the nonprofit before becoming the Managing Partner of Respondent.27

Respondent registered to do business with the District of Columbia, under

the trade name DC BOCCE LEAGUE, on November 5, 2010.28 Meanwhile,

the nonprofit filed articles of dissolution on November 4, 2010.29 The 456

Registration was later filed in February 2012, listing the applicant as “DC

Bocce League,” a nonprofit. The 456 Registration was, nevertheless, filed “on

[Respondent’s] behalf.”30 Thus, although an assignment was executed,

assigning the rights in the 2012 application from the nonprofit to the LLC,

this was done out of an abundance of caution and to “avoid any possible later

complications and confusion.”31

During the course of this proceeding, Respondent filed a motion to amend

the application that matured into the 456 Registration on the ground that it

inadvertently lists the wrong applicant.32 Respondent argues that while the

application was filed on behalf of Respondent, it incorrectly lists Respondent

25 47 TTABVUE 4, and Exhibit 6.
26 47 TTABVUE 2.
27 53 TTABVUE 39.
28 47 TTABVUE 5, and Exhibit 9.
29 47 TTABVUE 5, and Exhibit 8.
30 47 TTABVUE 6, and Exhibit 11.
31 47 TTABVUE 6. Assignment Reel 4740/Frame 0429.
32 39 TTABVUE.

7
Cancellation No. 92060936

by its trade name.33 The motion was opposed by Petitioner on the ground that

the filing was not a “mistake” but rather that the application was not filed by

“the proper person.”34 Petitioner further clarified that it did not consent to

the motion, citing Fed. R. Civ. P. 15(b) and the TBMP § 514,03.35

The Board denied Respondent’s motion to amend as untimely, but added

that the issue might be revisited with the Board’s final decision.36 We find

that the motion to amend was properly made in this proceeding. We note that

the TBMP section cited in the Board’s October 2, 2017 order, while discussing

the effect of unconsented motions, further states that an motion to amend,

“that is actually a correction” does not require the adverse party’s consent.

Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 514.03

(June 2018). The section goes on to state that “[o]rdinarily an amendment

seeking to correct a mistake addresses errors in how the applicant or

registrant is identified.” Id. Our precedent confirms this. See Great Seats,

Ltd., v. Great Seats, Inc.,, 84 USPQ2d 1235, 1240 (TTAB 2007). As the Board

there stated:

Where there exists as of the application filing date but a single
continuing commercial enterprise which is the owner of the
mark, and it is that entity which files the application, the
application is deemed to have been filed by the owner of the
mark even if the applicant, that single commercial enterprise, is
misidentified in the application as to its name or entity
designation (such as corporation, partnership, etc.).

33 49 TTABVUE 2.
34 49 TTABVUE 3, 5.
35 49 TTABVUE 4.
36 52 TTABVUE 12.

8
Cancellation No. 92060936

See also Accu Personnel Inc. v. Accustaff Inc., 38 uSPQ2d 1443 (TTAB 1996)

(applicant was proper “person” even though not in existence at time of filing,

since successor to prior corporations no longer in existence). Here too, there

was only one entity in existence at the time of the filing of the application

that matured into the 456 Registration. That entity is Respondent, Major

League Bocce, LLC. There is no dispute that DC Bocce League, nonprofit,

was no longer in existence as of the filing date in 2012. Respondent’s witness,

Ms. DeLucas, testified that as part of the process of its dissolution the

nonprofit “transferred all of its assets” to Respondent.37 She also testified

that the application that matured into the 456 Registration was filed “on

[Respondent’s] behalf.”38

We find that while the name and entity were listed incorrectly,

Respondent is the correct owner of the 456 Registration. Respondent’s motion

to amend is granted.

III. Standing

Standing is a threshold issue that must be proven in every inter partes

case. See Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ

185, 189 (CCPA 1982) (“The facts regarding standing . . . must be

affirmatively proved. Accordingly, [plaintiff] is not entitled to standing solely

because of the allegations in its [pleading].”). See also Empresa Cubana Del

Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058 (Fed. Cir. 2014).

37 47 TTABVUE 4, and Exhibit 7.
38 47 TTABVUE 6.

9
Cancellation No. 92060936

To establish standing in a cancellation proceeding, a petitioner must show

both “a real interest in the proceedings as well as a ‘reasonable’ basis for his

belief of damage.” See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023,

1025 (Fed. Cir. 1999).

Petitioner is a competitor of Respondent. The record establishes evidence

and testimony from both parties that Petitioner runs a bocce league in the

District of Columbia, as does Respondent.39 Furthermore, Respondent has

accused Petitioner of infringing its marks, and has taken action to stop such

alleged infringement.40 Thus, we find that Petitioner has established its

standing.

IV. Nonownership

Petitioner alleges that Respondent does not own either the 136

Registration or the 456 Registration.

Regarding the 136 Registration, Petitioner alleges that the application

that matured into the 136 Registration was filed by DC Bocce League,

nonprofit, when the company was no longer in existence, and was further

assigned to Respondent after the nonprofit ceased legal operations, and thus

the application is void ab initio. In particular, Petitioner points out that the

nonprofit was dissolved by the District of Columbia in 2007, while the

39 53 TTABVUE 8 (Kinsler); 47 TTABVUE 6 (DeLucas); 53 TTABVUE 32 (Preston).
40 53 TTABVUE 12 (Kinsler); 47 TTABVUE 6 (DeLucas), and Exhibit 11. 53
TTABVUE 63 (Preston). See also admissions in amended answer. 26 TTABVUE 4
(paragraphs 15, 17, 19).

10
Cancellation No. 92060936

application that matured into the 136 Registration was filed three years

later.

Respondent admits that although it continued to operate the nonprofit

through 2010, the corporate entity was dissolved by the District of Columbia

in 2007.41 However, Respondent’s witnesses deny knowledge of the

dissolution until after the nonprofit filed the application that matured into

the 136 application.42 There is dispute between the parties as to which law

governed the operations of the nonprofit at this time or what the effect of that

law would be on the corporate status and operations of the nonprofit.

Petitioner has the burden of proof, and has not shown by a preponderance of

the evidence that the nonprofit was not the proper applicant and owner of the

application. As to the assignment of this application, Respondent has

presented a reasonable timeline by which Respondent LLC was formed on

April 8, 2010; the nonprofit assigned all of its assets, including this

application to Respondent on May 11, 2010; and the nonprofit filed its

articles of dissolution on November 4, 2010, while Respondent continued

forward with operations using the mark in the 136 Registration.43

Regarding the 456 Registration, Petitioner alleges that the application

that matured into the 456 Registration was filed by DC Bocce League,

nonprofit, when the company was no longer in existence, and thus the

41 53 TTABVUE 47; 47 TTABVUE 2; 34 TTABVUE 26.
42 53 TTABVUE 50-51.
43 47 TTABVUE 4, Exhibit 6 and 7; Assignment Reel 004736/Frame 0372; 47

TTABVUE 5, and Exhibit 8.

11
Cancellation No. 92060936

application is void ab initio and cannot be registered in the name of

Respondent. As noted above, however, we have found that the application

was filed on Respondent’s behalf and should be corrected to list Respondent,

Major League Bocce, LLC, as the owner. Whether or not the nonprofit was

operating legally up to and until 2010 is irrelevant to this analysis of whether

Respondent, the LLC, was the correctly named applicant on the 2012 filing.

Thus, due to our grant of Respondent’s motion to amend the application,

Respondent is the owner of both the application and the ensuing 456

Registration, and Petitioner’s argument on this ground is moot.

Thus, we find for Respondent on the claim of nonownership as to both the

136 Registration and the 456 Registration, and the cancellation is denied as

to this ground for both registrations.

V. Mere Descriptiveness and Acquired Distinctiveness

We now address the alternative ground asserted by Petitioner that

Respondent’s mark DC BOCCE LEAGUE, is at least merely descriptive and

has not acquired distinctiveness. This argument only affects the mark in the

456 Registration, which is registered on the Principal Register under Section

2(f) of the Trademark Act, and not the 136 Registration, which is on the

Supplemental Register, and thus is not eligible for registration with a

showing of acquired distinctiveness. See Frito-Lay N. Am., Inc. v. Princeton

Vanguard, LLC, 124 USPQ2d 1184, 1204 n.63 (TTAB 2017). Since

Respondent registered the mark in the 456 Registration under Section 2(f),

12
Cancellation No. 92060936

the descriptiveness of the applied-for mark is conceded. See The Cold War

Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d

1626, 1629 (Fed. Cir. 2009) (“where an applicant seeks registration on the

basis of Section 2(f), the mark’s descriptiveness is a nonissue; an applicant’s

reliance on Section 2(f) during prosecution presumes that the mark is

descriptive.”). Respondent also disclaimed the descriptive term “bocce

league,” apart from the mark as shown.

Respondent admittedly offers a bocce league with related recreational

events in the District of Columbia, also known as DC, as one of its team

league sports. Co-owner Sarah DeLucas notes that Respondent and the prior

nonprofit have “operated bocce ball leagues under the DC BOCCE LEAGUE

brand and mark in and around Washington, D.C., Virginia, and Maryland.”44

Ms. Preston, Respondent’s Managing Partner, reiterated that Respondent “is

an operator of bocce ball leagues for social purposes,” including “in the D.C.

metro area,” where it uses this mark.45 This is analogous to the situation in

Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750,

1767 (TTAB 2013) (finding Respondent’s geographically descriptive mark to

be highly descriptive and evidence submitted to establish acquired

distinctiveness insufficient). In that case, the respondent had registered the

mark ANNAPOLIS TOURS for guided tour services, disclaiming the word

“TOURS.” The Board found that with the generic term “TOURS,” which

44 47 TTABVUE 2, 5.
45 53 TTABVUE 32.

13
Cancellation No. 92060936

refers to the services provided, coupled with the geographically descriptive

term “ANNAPOLIS,” the mark as a whole was highly descriptive. Id. at 1765.

Here, as well, we find that Respondent’s mark is highly descriptive of the

identified services.

The Court in Cold War Museum clarified the burdens in a cancellation

proceeding where the petitioner alleges that a mark is at least merely

descriptive without having acquired distinctiveness:

A mark on the Principal Register is presumed to be valid. 15
U.S.C. § 1057(b). Due to this presumption of validity, the burden
of persuasion in a cancellation proceeding rests on the party
seeking to cancel the registration. A party seeking to cancel a
registration must overcome the registration’s presumption of
validity by a preponderance of the evidence.
Cold War Museum, 92 USPQ2d at 1628. [cites omitted].

The Court went on to say that to rebut the presumption in a cancellation

proceeding that a mark registered under Section 2(f) has become distinctive,

the petitioner “must produce sufficient evidence for the Board to conclude, in

view of the entire record in the cancellation proceeding, that the party has

rebutted the mark’s presumption of acquired distinctiveness” and must do so

“by a preponderance of the evidence.” Id. [cites omitted].

Thus it is incumbent on Petitioner to make a prima facie showing at trial

that Respondent’s mark has not acquired distinctiveness. Id., at 1630. In that

case, the Court found that petitioner “failed to present any evidence or

argument of lack of distinctiveness,” and thus had not met its burden. Here,

Petitioner points to a 2010 IRS filing by the nonprofit which mentions

14
Cancellation No. 92060936

significantly lower revenue for the year 2010 than that referred to by

Respondent in its 2(f) filings for that year.46 In this regard, Petitioner argues

that there is an issue as to whether Respondent has “substantially exclusive

and continuous use” of its mark for a period of five years or more.47 However,

Respondent has explained the disparity in the numbers, stating that the

disparity is because the IRS filing refers only to the nonprofit, while the

documents submitted to show 2(f) acquired distinctiveness by Ms. DeLucas

(and with Respondent’s application filing) refer to combined revenue for both

the nonprofit and the LLC which operated separately at different points in

2010. Respondent clarifies that because of the assignment of the 136

Registration during that year, both revenues were added together for

purposes of the 2(f) filing.48

We find that Petitioner has failed to establish a prima facie case that the

mark in the 456 Registration has not acquired distinctiveness which would

render the Section 2(f) registration invalid. Since the burden is on Petitioner

to establish its case, it is unnecessary for us to consider the 2(f) evidence

submitted by Respondent to refute the claim. The cancellation is denied on

the ground of lack of acquired distinctiveness as to the 456 Registration.

VI. Fraud

Finally, we consider Petitioner’s claim of fraud. Petitioner alleges fraud by

Respondent in the assignment of the 136 Registration and the 456

46 58 TTABVUE 26; 37 TTABVUE 5; 47 TTABVUE 49.
47 58 TTABVUE 21.

15
Cancellation No. 92060936

Registration from the assignor corporation as well as in the filing of the

application that matured into the 456 Registration with regard to its claim of

Section 2(f) acquired distinctiveness.

The Court in In re Bose Corp., 476 F.3d 1331, 91 USPQ2d 1938, 1939

(Fed. Cir. 2009), set out the relevant standard for proving fraud:

“Fraud in procuring a trademark registration or renewal occurs
when an applicant knowingly makes false, material
representations of fact in connection with his application.”
Torres v. Cantine Torresella S.r.l., 808 F.2d 46, 48 [1 USPQ2d
1483] (Fed. Cir. 1986). A party seeking cancellation of a
trademark registration for fraudulent procurement bears a
heavy burden of proof. W.D. Byron & Sons, Inc. v. Stein Bros.
Mfg. Co., 377 F.2d 1001, 1004 [153 USPQ 749] (CCPA 1967).
Indeed, “the very nature of the charge of fraud requires that it
be proven ‘to the hilt’ with clear and convincing evidence. There
is no room for speculation, inference or surmise and, obviously,
any doubt must be resolved against the charging party.” Smith
Int’l, Inc. v. Olin Corp., 209 USPQ 1033, 1044 (TTAB 1981).

Regarding the assignments of the 136 and 456 Registrations, the Board

noted in its October 2, 2017 order that Bose requires that fraud be found only

when there are “knowingly false, material, representations” with regard to

the filing or maintaining of an application or registration.49 The order further

notes that an assignment of ownership, which is “ministerial,” does not fit in

this category. Id. Regarding the filing of the 456 Registration, we have found,

as discussed above, that the application that matured into the 456

Registration was merely filed listing an incorrect name and entity type, but

was filed by or on behalf of the proper person, Respondent.

48 59 TTABVUE 28; 47 TTABVUE 5, 9.

16
Cancellation No. 92060936

With regard to the allegation of fraud regarding the 2(f) filing, Petitioner

again points to a 2010 IRS filing by the nonprofit which mentions different

numbers for the year 2010 than that referred to by Respondent for that

year.50 However, as noted above, Respondent has explained the disparity in

the numbers, stating that the disparity is because the IRS filing refers only to

the nonprofit, while the documents submitted to show 2(f) acquired

distinctiveness by Ms. DeLucas (and with Respondent’s application filing)

refer to combined revenue for both the nonprofit and the LLC which operated

separately at different points in 2010. Respondent clarifies that because of

the assignment of the 136 Registration during that year, both revenues were

added together for purposes of the 2(f) filing.51 There is no evidence that

these statements are false, nor is there evidence of intent to deceive. See

Alcatraz Media, 107 USPQ2d at 1769 (finding insufficient evidence of fraud

in 2(f) filing).

Petitioner has not proven “to the hilt” with “clear and convincing

evidence” that Respondent made false representations, including with regard

to its allegations of Section 2(f) acquired distinctiveness, nor that any such

representations were made knowingly and with intent to deceive. Thus, the

the cancellation is denied on this ground of fraud as to both the 136

Registration and the 456 Registration.

49 52 TTABVUE11, n.15.
50 58 TTABVUE 26; 37 TTABVUE 5; 47 TTABVUE 49.
51 59 TTABVUE 28; 47 TTABVUE 5, 9.

17
Cancellation No. 92060936

VII. Conclusion

We have considered Petitioner’s pleaded claims that (1) Respondent is not

the true owner of either the 136 Registration or the 456 Registration; (2) the

mark in the 456 Registration is at least merely descriptive and has not

acquired distinctiveness; and (3) Respondent committed fraud on the PTO in

the assignment of the 136 Registration and the 456 Registration from the

assignor corporation as well as in the filing of the application that matured

into the 456 Registration with regard to its claim of Section 2(f) acquired

distinctiveness. We have denied the claim of nonownership as to both

registrations. We have also denied the claim of fraud, on its various bases, for

both registrations. Thus, the 136 Registration shall remain on the

Supplemental Register.

Regarding the claim that Respondent’s mark is highly descriptive and has

not acquired distinctiveness, we have found that the mark in the 456

Registration is highly descriptive in relation to the identified goods. However,

Petitioner, who has the burden of proof in this cancellation proceeding, has

failed to establish a prima facie case that the mark has not acquired

distinctiveness as to those goods. Therefore, we deny the cancellation of the

456 Registration on that ground as well.

DECISION: The cancellation is denied as to both Registration No.

4221456 and to Registration No. 3956136 on all pleaded grounds.

18