Leola Anifowoshe & Tessylim Anifowoshev.Elegant Behavior, LLC

Trademark Trial and Appeal Board

Apr 15, 2020

91242068 (T.T.A.B. Apr. 15, 2020)

Mailed: April 15, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
Leola Anifowoshe & Tessylim Anifowoshe
v.
Elegant Behavior, LLC
————
Opposition No. 91242068
________
Leslie WM Adams of Leslie WM Adams & Associates,
for Leola Anifowoshe & Tessylim Anifowoshe.
Daliah Saper and Matt Grothouse of Saper Law Offices LLC,
for Elegant Behavior, LLC.
————
Before Adlin, Pologeorgis, and Lebow,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Elegant Behavior, LLC (“Applicant”) seeks to register on the Principal Register
the standard character mark NZURI BODY ESSENTIALS (BODY ESSENTIALS
disclaimed) for the following goods in International Class 3:
Bath bombs; Body butter; Body lotion; Body lotions; Body oil; Body oils;
Body scrub; Body scrubs; Body cream soap; Body mask lotion; Facial
moisturizer with SPF; Facial moisturizers; Facial washes; Lotions for
face and body care; Shower creams; Almond soap; Beauty soap; Cosmetic
bath salts; Cosmetic olive oil for the face and body; Face and body
lotions; Fragranced body care preparations, namely, body lotions,
shower lotion, bath lotion; Fragranced facial moisturizer; Fragranced
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91242068
2
face care preparations, namely, facial moisturizers; Laundry soap;
Moisturizing body lotions; Natural soap bars; Naturally handmade non-
medicated soap bars; Non-medicated bath salts; Non-medicated
handmade soap bars; Organic soap bars; Skin soap; Skin and body
topical lotions, creams and oils for cosmetic use.1

Leola Anifowoshe & Tessylim Anifowoshe (“Opposers”) have opposed the
registration of Applicant’s mark on the following grounds: (1) likelihood of confusion
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); (2) dilution under
Section 43(c), 15 U.S.C. § 1125(c); (3) mere descriptiveness under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1); (4) Applicant does not own the mark; and
(5) deceptiveness under Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a). In
support of its claims, Opposers allege, among other things, prior use and registration
of the purportedly famous mark NZURI used in connection with various beauty
products specifically designed for hair and body.2
In its answer to notice of opposition, Applicant denied most of the salient
allegations.3 Applicant did admit, however, that the “allegations in paragraph 2 of

1 Application Serial No. 87729236, filed on December 20, 2017, based on an allegation of use
in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. 1051(a), claiming September
3, 2016 as both the date of first use and the date of first use in commerce. The application
includes the following translation statement: “The English translation of ‘NZURI’ in the
mark is ‘good’ and ‘beautiful’.”
2 1 TTABVUE.
Citations to the record or briefs in this opinion include citations to the publicly available
documents on TTABVUE, the Board’s electronic docketing system. See, e.g., Turdin v.
Trilobite, Ltd., 109 USPQ2d 1473 (TTAB 2014). The number preceding “TTABVUE”
corresponds to the docket entry number; the number(s) following “TTABVUE” refer to the
page number(s) of that particular docket entry.
3 4 TTABVUE.
Opposition No. 91242068
3
the Notice of Opposition, are consistent with the record of the USPTO.”4 Opposers
alleged the following in paragraph 2 their pleading: “Opposer[s] filed a use in
commerce application Serial No. 85417780 on September 08, 2011. The Opposer[s’]
NZURI mark was registered on August 06, 2013.”5
Additionally, Applicant asserted various putative affirmative defenses, including
laches, estoppel, waiver, and unclean hands and that the notice of opposition fails to
state a claim upon which relief may be granted.6 Insofar as Applicant neither filed a
formal motion to dismiss for failure to state a claim during the interlocutory phase of
this proceeding, nor argued this asserted affirmative defense in its brief, it is hereby
deemed waived. Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d
1750, 1753 n.6 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014). Likewise,
since Applicant did not pursue its laches, estoppel, wavier and unclean hands
defenses, these affirmative defenses are also deemed waived. 7
At briefing, Opposers only pursued their likelihood of confusion and dilution
claims. Accordingly, all other claims asserted by Opposers in their pleading are
deemed waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., 107

4 Id. at ¶ 2, 4 TTABVUE 2.
5 Notice of Opposition ¶ 2, 1 TTABVUE 3.
6 Applicant’s Answer at ¶ 24-31, 4 TTABVUE 4-7.
7 Although Applicant did not pursue its laches defense, we note that laches generally is not
a proper defense against an opposition. Nat’l Cable Television Ass’n Inc. v. Am. Cinema
Editors Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1432 (Fed. Cir. 1991). With regard to the
remainder of Applicant’s “affirmative defenses,” we construe these defenses as mere
amplifications of Applicant’s denials of the salient allegations set forth in Opposers’ notice of
opposition. See Order of Sons of Italy in Am. v. Profumi Fratelli Nostra AG, 36 USPQ2d 1221,
1223 (TTAB 1995).
Opposition No. 91242068
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USPQ2d at 1753 n.6; Swatch AG (Swatch SA) (Swatch Ltd.) v. M.Z. Berger & Co.,
108 USPQ2d 1463, 1465 n.3 (TTAB 2013) (opposer’s pleaded claims not argued in its
brief deemed waived), aff’d, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015).
I. The Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), 37
C.F.R. § 2.122(b), Applicant’s involved application file. The record also includes the
following evidence:
A. Opposers’ Evidence
Opposers did not submit any testimony nor did they submit any evidence during
their main trial period. Opposers did, however, submit a rebuttal notice of reliance
during their rebuttal testimony period on the following:
(1) copy of a Texas state certificate of incorporation for an entity
known as Nzuri, LLC; (2) screenshots from various online retailer
websites purportedly demonstrating the sale of Opposers’ identified
goods under its pleaded NZURI mark; (3) copy of an online article from
the website www.d-mars.com supposedly discussing Opposers’ NZURI
products; (4) copy of the underlying application of Opposers’ pleaded
registration; (5) copies of various Office Actions issued during the
prosecution of the underlying application of Opposers’ pleaded
registration; (6) a plain copy of Opposers’ pleaded registration;8 and (7)

8 In their rebuttal notice of reliance, Opposers maintain that the copy of their pleaded
registration was obtained from the electronic database records of the USPTO. See 10
TTABVUE 4. Upon review of this submission, however, we find that although it was
Opposition No. 91242068
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screenshots from the website www.nzuribodyesstentials.com
purportedly owned by Applicant.
B. Applicant’s Evidence
Applicant also did not submit any testimony. Applicant did, however, submit a
notice of reliance on the following:9
(1) The application file of the underlying application of Opposers’
pleaded registration, including a plain copy of Opposers’ pleaded
registration; (2) plain copies of two third-party registrations for the
mark ZURI (Reg. Nos. 1028316 and 1122638), and an additional plain
copy of the third-party registration for the mark of NZURI BY TAVON
(Reg. No. 5637050);10 (3) the application history of Applicant’s involved
application for the mark NZURI BODY ESSENTIALS;11 and (4) records
of Applicant’s Illinois State trademark registration for the mark NZURI
BODY ESSENTIALS – WHERE ELEGANCE MEETS BEAUTY and
design obtained from the websites www.cyberdriveillinois.com and
www.ilsos.gov/trademarksearch.

purportedly obtained from the USPTO’s electronic database, the copy of the registration is
nonetheless a plain copy of the registration that does not demonstrate the current status and
title of the registration.
9 8 TTABVUE.
10 Applicant’s submissions of a plain copy of Opposers’ pleaded registration, as well as the
plain copies of the third-party registrations, do not demonstrate the current title and status
of these registrations.
11 It was unnecessary for Applicant to submit the file contents of its involved application since
Applicant’s application file is automatically of record under Trademark Rule 2.122(b).
Opposition No. 91242068
6
Both parties, by way of their respective notices of reliance, submitted printouts
from various websites downloaded from the Internet. Although admissible for what
they show on their face, see Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2), this
evidence also contains hearsay that may not be relied upon for the truth of the
matters asserted unless supported by testimony or other evidence. Fed. R. Evid.
801(c); WeaponX Performance Prods. Ltd. v. Weapon X Motorsports, Inc., 126 USPQ2d
1034, 1038 (TTAB 2018); Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1039-40
(TTAB 2010); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) § 704.08(b) (2019) (“The probative value of Internet documents is limited.
They can be used to demonstrate what the documents show on their face. However,
documents obtained through the Internet may not be used to demonstrate the truth
of what has been printed.”).
II. Evidentiary Issues
Before we consider Opposers’ likelihood of confusion and dilution claims, we must
first address certain evidentiary issues. Opposers attached various exhibits to their
pleading comprised of Internet materials. However, with the exception of a status
and title copy of a plaintiff's pleaded registration, exhibits attached to pleadings and
not properly introduced during trial are not evidence on behalf of that party. See
Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c) (exhibits to pleadings are not in
evidence and instead “must be identified and introduced in evidence as an exhibit
during the period for the taking of testimony”); W.R. Grace & Co. v. Herbert J. Meyer
Indus., Inc., 190 USPQ 308, 309 n.5 (TTAB 1976); TBMP § 317. Because Opposers
Opposition No. 91242068
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did not submit any of the Internet materials attached as exhibits to their pleading
during their assigned main trial period in accordance with Board rules and procedure,
these exhibits will be given no consideration.
Moreover, Opposers attached a plain copy of their pleaded registration as an
exhibit to their notice of opposition. Such a “plain copy” is generally insufficient for
purposes of making the registration of record. Trademark Rule 2.122(d)(1), 37 C.F.R.
§ 2.122(d)(1), provides that “[a] registration of the opposer or petitioner pleaded in an
opposition or petition to cancel will be received in evidence and made part of the
record if the opposition or petition is accompanied by an original or photocopy of the
registration prepared and issued by the Office showing both the current status
of and current title to the registration, or by a current copy of information from
the electronic database records of the Office showing the current status and title
of the registration.” (emphasis added).
As the Board explained in Peters Sportswear Co., Inc. v. Peter's Bag Corp., 187
USPQ 647, 650 (TTAB 1975), the problem with unauthenticated copies or “plain
copies” of pleaded registrations is that they:
... are insufficient to meet the requirements of Trademark Rule 2.122(b)
[now subsection d] and hence are incompetent to establish the current
status of opposer's pleaded registrations, that is, to show that such
registrations are still subsisting. Moreover, the fact that the copies of
the registration certificates filed by opposer indicate on their face that
the registrations originally issued to opposer cannot serve to show that
opposer is still the owner thereof and thus the “registrant” within the
meaning of Section 7(b) of the Act of 1946.

The Board has made exceptions and allowed plain copies of registrations, such as
that provided by Opposers, when the registration’s issue date is “reasonably
Opposition No. 91242068
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contemporaneous” with the filing date of the notice of opposition or petition for
cancellation. See United Global Media Group, Inc. v. Tseng, 112 USPQ2d 1039, 1043
(TTAB 2014). Here, the issuance date of Opposers’ pleaded Registration. No. 4378376
for the mark NZURI is August 6, 2013, approximately five years prior to the filing
date of their notice opposition. Thus, because the issuance date of Opposers’ pleaded
registration was not reasonably contemporaneous with the filing date of their
pleading, we have given no consideration to the plain copy of Opposers’ pleaded
registration attached to their notice of opposition.12
Opposers also submitted a rebuttal notice of reliance during their assigned
rebuttal testimony period. Additionally, Opposers attached evidence to their trial
brief, as well as their reply trial brief.
Applicant has objected to Opposers’ rebuttal notice of reliance on the ground that
the evidence submitted therein is not rebuttal evidence but rather evidence that
supports their case-in-chief.13 Additionally, Applicant has objected to the evidence
submitted with Opposers’ trial brief.14
We first turn to Applicant’s objection regarding the evidence submitted by

12 We note that Applicant also submitted a plain copy of Opposers’ pleaded registration as an
exhibit to its notice of reliance. See 8 TTABVUE 102-03. However, as with Opposers’
submission, the plain copy submitted by Applicant does not demonstrate the current status
and title of Opposers’ pleaded registration. Accordingly, Applicant’s submission does not
establish that Opposers’ pleaded registration is valid and subsisting.
13 Applicant’s Trial Brief, pp. 3-5; 14 TTABVUE 5-7. Objections to improper rebuttal evidence
are properly made in an objecting party’s brief on the case rather than by a motion to strike.
See Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1233 (TTAB 1992); TBMP §§ 707.02(b)(2)
and 707.03(c).
14 Id.
Opposition No. 91242068
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Opposers with their rebuttal notice of reliance. The plaintiff's rebuttal testimony
period is intended solely for the introduction of evidence or testimony that denies,
explains, or discredits evidence adduced by the defendant. It is improper for a
plaintiff to introduce, for the first time during its rebuttal testimony period, evidence
that relates to facts that might appropriately have been introduced during the party's
case-in-chief. See Carefirst of Maryland Inc. v. FirstHealth of the Carolina Inc., 77
USPQ2d 1492, 1498 (TTAB 2005); and American Meat Institute v. Horace W.
Longacre, Inc., 211 USPQ 712, 719 (TTAB 1981) (“[i]t is the general rule that a party
plaintiff may in his case on rebuttal introduce facts and witnesses appropriate to
deny, explain, or otherwise discredit the facts and witnesses adduced by the
opponent, but not any facts or witnesses which might appropriately have been
introduced during its case-in-chief to sustain its pleading” and thus “a plaintiff may
not utilize its rebuttal period to prove its case-in-chief or to shore up its principal case
in light of a defendant's evidence”). See also General Electric Company v. Graham
Magnetics Inc., 197 U.S.P.Q. 690, 692 n.5 (TTAB 1977); and Western Leather Goods
Co. v. Blue Bell, Inc., 178 USPQ 382 (TTAB 1973).
With the aforementioned principle in mind, we agree with Applicant that the
evidence submitted by Opposers by way of their rebuttal notice of reliance is not true
rebuttal evidence but rather constitutes evidence that supports their case-in-chief.
Specifically, evidence regarding: (1) Opposers’ pleaded registration; (2) the
application file of Opposers’ underlying application; or (3) prior use of Opposers’
Opposition No. 91242068
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pleaded mark is clearly evidence that would support Opposers case-in-chief.15
Furthermore, the printouts from the various websites submitted by Opposers with
their rebuttal notice of reliance show on their face that some entity is advertising
products under the NZURI mark, but absent testimony from a competent witness,
they are nonetheless hearsay. They do not prove that Opposers own their pleaded
NZURI mark or that they have offered products under that pleaded mark. Similarly,
the screenshots purportedly obtained from Applicant’s website do not, absent
competent testimony, demonstrate that Applicant is the owner of this website or that
Applicant advertises the goods identified therein under its involved mark. As
discussed above, Opposers’ Internet evidence is only probative for what it shows on
its face and not the truth of what has been printed.16 See Couch/Braunsdorf Affinity,
Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (Internet
webpage evidence admissible only to show what has been printed and not for the
truth of what has been printed).
Further, Opposers have not explained how these materials are anything more
than evidentiary support of their asserted claims or that they somehow discredit the
evidence submitted by Applicant. Opposers submitted, in part, the same evidence
submitted by Applicant, i.e., a plain copy of Opposers’ pleaded registration and the

15 Opposers also submitted corporate documents and franchise tax information concerning
an entity known as Nzuri LLC. It is unclear how this evidence supports Opposers’ claims,
particularly since Nzuri LLC is not a party to this proceeding.
16 Because Applicant has not accepted as fact any portion of this Internet evidence, but has
instead objected to the admissibility of this evidence, we do not deem it stipulated into the
record for the truth of matters asserted therein.
Opposition No. 91242068
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file contents of the underlying application of Opposers’ pleaded registration.
Submitting the same evidence of an adversary in rebuttal is not rebutting or
discrediting the adversary’s evidence. In sum, we find that the evidence submitted by
Opposers in their rebuttal notice of reliance does not constitute proper rebuttal
evidence and, therefore, we have given no consideration to any of the evidence
submitted by Opposers with their rebuttal notice of reliance.
With regard to the evidence attached to Opposers’ main and reply briefs, any
evidence not previously submitted during Opposers’ testimony period is untimely. See
TBMP §704.05(b) (“Exhibits and other evidentiary materials attached to a party's
brief on the case can be given no consideration unless they were properly made of
record during the time for taking testimony”) and authorities cited therein, including
Trademark Rule 2.123(k), 37 C.F.R. § 2.123(k) (“Evidence not obtained and filed in
compliance with these sections will not be considered”); see also The Maytag Co. v.
Luskin's, Inc., 228 USPQ 747, 748 (TTAB 1986); Binney & Smith Inc. v. Magic Marker
Ind., Inc., 222 USPQ 1003, 1009 n.18 (TTAB 1984). Here, the evidence submitted
with Opposers’ briefs include the same evidence that was submitted with its rebuttal
notice of reliance which, as previously stated, we have not considered. To the extent
Opposers have attached new evidence to their trial briefs that was not properly
submitted during their assigned testimony period, such evidence is untimely and not
properly of record. Accordingly, we similarly give no consideration to the evidence
submitted by Opposers with their trial briefs.

Opposition No. 91242068
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III. Standing Not Proven
Standing is a threshold issue that a plaintiff must prove in every inter partes case.
See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058,
1062 (Fed. Cir. 2014). “The facts regarding standing ... are part of [a plaintiff’s] case
and must be affirmatively proved. Accordingly, [a plaintiff] is not entitled to standing
solely because of the allegations in its [pleading].” Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). The U.S. Court of
Appeals for the Federal Circuit has enunciated a liberal threshold for determining
standing: a plaintiff must demonstrate that it has a “real interest” in a proceeding
beyond that of a mere intermeddler, and “a reasonable basis for his belief of damage.”
Empresa Cubana, 111 USPQ2d at 1062 (citations omitted). A “real interest” is a
“direct and personal stake” in the outcome of the proceeding. Ritchie v. Simpson, 170
F.3d 1902, 50 USPQ2d 1023, 1026 (Fed. Cir. 1999).
As plaintiffs in this proceeding, Opposers must prove both their standing and their
asserted claims of likelihood of confusion and dilution by a preponderance of the
evidence. See Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303,
1305 (Fed. Cir. 2002) (“The burden of proof rests with the [plaintiff] ... to produce
sufficient evidence to support the ultimate conclusion of [priority of use] and
likelihood of confusion.”); Sanyo Watch Co. v. Sanyo Elec. Co., 691 F.2d 1019, 215
USPQ 833, 834 (Fed. Cir. 1982) (“As the [plaintiff] in this proceeding, appellant bears
the burden of proof which encompasses not only the ultimate burden of persuasion,
but also the burden of going forward with sufficient proof of the material allegations
Opposition No. 91242068
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of the [petition to cancel], which, if not countered, negates appellee’s right to a
registration.”).
While Opposers did not submit any timely evidence or testimony, we must
nonetheless look to the pleadings to determine if Applicant made any admissions in
its answer that would mitigate Opposers’ failure to otherwise prove their case. As
noted above, Applicant admitted that USPTO records demonstrate the date upon
which Opposers filed the underlying application of their pleaded registration and the
date upon which Opposers’ pleaded registration issued. This admission, however,
does not establish the current status and title of Opposers’ pleaded registration.
Accordingly, Applicant’s admission does not aid Opposers.
In their trial brief, Opposers repeat the unsupported allegations about their
purported adoption and use of their pleaded NZURI mark and allege that the
registration of Applicant’s mark would dilute their pleaded mark and cause a
likelihood of confusion. The Federal Circuit has consistently stated, however, that
“[a]ttorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901
F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v.
Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)); see also In re Simulations
Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief
cannot take the place of evidence.”). Any evidence Opposers intended to rely upon in
support of their standing and asserted claims of likelihood of confusion and dilution
should have been submitted during their assigned main trial period and prior to the
filing their trial briefs. Here, Opposers have failed to do so. Mere arguments
Opposition No. 91242068
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unsupported by evidence set forth in Opposers’ briefs do not support their claims.17
Opposers also argue that they may rely upon the evidence submitted by Applicant
during Applicant’s testimony period.18 While a party to a Board proceeding may rely
upon evidence submitted by its adversary, see Trademark Rule 2.122(a), 37 C.F.R.
§ 2.122(a) (“[w]hen evidence has been made of record by one party in accordance with
these rules, it may be referred to by any party for any purpose permitted by the
Federal Rules of Evidence.”), the evidence submitted by Applicant during its assigned
testimony period does not prove Opposers’ standing or any of the elements of their
likelihood of confusion or dilution claims. As previously noted, the plain copy of
Opposers’ pleaded registration submitted by Applicant does not demonstrate the
current status and title thereof and therefore is given no consideration. Moreover, the
remaining evidence submitted by Applicant also does not establish Opposers’
standing or prove by a preponderance of the evidence the elements of Opposers’
asserted claims of likelihood of confusion or dilution.
Opposers further argue that their failure to introduce properly evidence in support
of their asserted claims was a mere procedural technicality. It was not. Litigants and
their counsel are obligated to review and become familiar with the Trademark Rules

17 To the extent Opposers argue that the allegations made in their pleadings constitute
evidence, they are mistaken. 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 party’s main trial period. Kellogg Co. v. Pack’Em Enterprises Inc., 14
USPQ2d 1545, 1547 n.6 (TTAB 1990), aff'd, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991);
Times Mirror Magazines, Inc. v. Sutcliff, 205 USPQ 656, 662 (TTAB 1979); and TBMP
§ 704.06(a).
18 Opposers’ Reply Trial Brief, p. 9; 16 TTABVUE 10.
Opposition No. 91242068
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of Practice and the Trademark Manual of Board Procedure. Strict compliance with
the Trademark Rules of Practice, including the proper and timely introduction of
evidence in Board proceedings, is expected of all parties before the Board, whether or
not they are represented by counsel familiar with Board practice. See McDermott v.
San Francisco Women's Motorcycle Contingent, 81 USPQ2d 1212 (TTAB 2006), aff'd,
240 F. App’x 865 (Fed. Cir. 2017). Failure to follow the Board’s well-established and
widely-disseminated practice and procedure is at the party’s peril.
In sum, there is no evidence properly of record that establishes that Opposers have
a “real interest,” i.e., a “direct and personal stake,” in the outcome of this proceeding
or that Opposers are more than “mere intermeddlers.” Empresa Cubana, 111
USPQ2d at 1062; Ritchie, 50 USPQ2d at 1026; see also TBMP § 309.03(b).
Accordingly, we find Opposers have failed to prove their standing to oppose
registration of Applicant’s involved mark.
Opposers’ failure to prove standing is a sufficient basis to dismiss Opposers’ notice
of opposition. See Lumiere Prods., Inc. v. Int’l Tel. & Tel. Corp., 227 USPQ 892, 893
(TTAB 1985). However, even if Opposers had proved their standing (which they did
not), there is no evidence properly of record to prove priority of use of their pleaded
NZURI mark (a required element in a likelihood of confusion claim) or dilution. Thus,
Opposers’ asserted likelihood of confusion and dilution claims must fail.
Decision: The opposition is dismissed with prejudice.