COLOR ME MINE ENT. v. SOUTHERN STATES MARKETING, 91185327 (TTAB 2-2-2011)
Color Me Mine Enterprises, Inc. v. Southern States Marketing, Inc.
Opposition No. 91185327 to application Serial No. 77390919filed on February 7, 2008United States Patent and Trademark OfficeTrademark Trial and Appeal Board
Mailed: February 2, 2011Page 1
THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B.
Bruce B. Brunda of Stetina Brunda Garred Brucker for Color Me Mine Enterprises, Inc.
Jeff B. Slagle of Thompson Slagle Hannan LLC for Southern States Marketing, Inc.
Before Zervas, Bergsman and Wolfson, Administrative Trademark Judges.
Opinion by Wolfson, Administrative Trademark Judge:
Southern States Marketing, Inc. ("applicant") filed an intent-to-use application for the mark COLOR ME MINE for "decorative purse and tote bag hobby arts and crafts activity kits containing purse or bag, markers to decoratePage 2
bag, and accessory stationery items including blank journals, erasers, notebooks, paper, pencils, pens," in Class 28.
Color Me Mine Enterprises, Inc. ("opposer) opposed the registration of applicant's mark on the ground of priority of use and likelihood of confusion under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d). Specifically, opposer alleges that it is the owner of Registration No. 1930281 for the mark COLOR ME MINE, in typed drawing form, for a "`do-it-yourself' ceramic studio, providing the use of various supplies and equipment; namely, unpainted ceramic bowls, dishes and containers in a variety of shapes and sizes, picture frames, night lights, salt and pepper shakers, paints, glazes and firing materials," in Class 41;[fn1] that it has used the mark COLOR ME MINE prior to the filing date of applicant's mark on "a variety of products and services such as 'do-it-yourself' ceramic studio, providing the use of various supplies and equipment;"[fn2] and that the registration of applicant's mark COLOR ME MINE for its arts and crafts activity kits so resembles opposer's mark as to be likely to cause confusion.
Applicant has denied the salient allegations in the notice of opposition. Applicant's answer includes an allegation that "Opposer may not be the owner of the U.S.Page 3
Registration No. 1,930,281" and a further allegation that "if [opposer's mark] is not generic, [it] is highly descriptive of the Opposer's claimed services." Applicant has not, however, sought to cancel the registration. In the absence of a counterclaim or petition to cancel the registration, it is presumed valid and its ownership remains presumptively in opposer. See Trademark Rules 2.106(b)(2)(ii) and 2.114(b)(2)(ii); and TBMP § 319.01 (2d ed. rev. 2004).
Evidentiary Objections
Each party has objected to the introduction of certain evidence proffered by the other. During opposer's rebuttal testimony period, opposer noticed a deposition of Mark Tasman, to which applicant objected by way of a motion styled "Applicant's Objection to Opposer's Proposed Rebuttal Testimonial Deposition." That motion was effectively withdrawn upon the parties' subsequent filing of a "Submission of Stipulated Rebuttal Facts, Subject to Applicant's Objections," wherein the parties agreed that certain facts were true and that opposer's Exhibits 129 and 130 to Mr. Tasman's deposition supported these facts.
Applicant, however, maintained its objections to Exhibits 129 and 130, and to Exhibits 121-128, all to Mr. Tasman's deposition, on the ground that they are outside thePage 4
scope of applicant's direct examination of Mr. Tasman and concern only applicant's other product lines, and therefore are irrelevant and not within the scope of applicant's case. We find the exhibits, which show applicant's use of marks other than COLOR ME MINE on activity products, are within the scope of applicant's direct examination of Mr. Tasman, who stated during direct that applicant sells "toys, activity and stationery product (sic) as well as other products."[fn3]
Moreover, as some of the products sold by applicant under other marks include bottles, votives and porcelain teapots, cups and bowls, this evidence has been considered relevant and for whatever probative value it may have.
Opposer has objected to the copies applicant sought to make of record under notice of reliance, of third-party registrations and applications from USPTO records (specifically, the TARR database)[fn4] and copies of "The Real White Pages" for Greater Atlanta (business), edition December 2010, and the "Verizon White Pages" for South Hampton Roads, edition October 2009-2010[fn5] on the grounds that the materials lack authentication and have little probative value. The USPTO records and the directory listings may be introduced as official records and printedPage 5
publications under Trademark Rule 2.122(e) and do not need independent authentication. See Hard Rock CafeInternational (USA), Inc. v. Thomas D. Elsea, 56 USPQ2d 1504, 1508 (TTAB 2000) (third-party marks and telephone directory listings filed under notice of reliance admissible; opposer's objections go "to the probative weight to be accorded the listings, not whether they may be considered"). Opposer's objection is overruled and we have considered the evidence for whatever probative value it may have.
We also overrule opposer's objections to the admission of certain website materials as being irrelevant and lacking probative value. These website materials, introduced as Exhibits 103-120 to Mr. Tasman's deposition, comprise articles from the Internet about "do-it-yourself" pottery studios, Internet web pages advertising a variety of goods and services under names that include "color me," and a Dun Bradstreet report listing businesses in their database that use "color me" in their company names.[fn6] While these website materials do not show that any of the companies are actually providing goods or services, or that the companies listed in the Dun Bradstreet report are active, they do show that there exist companies that have websites, or are listed in the Dun Bradstreet report, that use "color me"Page 6
as part of their corporate name or to advertise goods or services. See Sports Authority Michigan Inc. v. PCAuthority Inc., 63 USPQ2d 1782, 1798 (TTAB 2001) (Internet web sites introduced via testimony deposition are admissible, although "of limited probative value"); cf. Safer Inc. v.OMS Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (if a document obtained from the Internet identifies its date of publication or date that it was accessed and printed, and its source (e.g., the URL), it may be admitted into evidence pursuant to a notice of reliance).
The Record
By rule, the record includes applicant's application file and the pleadings. Trademark Rule 2.122(b), 37 CFR § 2.122(b). The record further includes the parties' testimony and evidence.
Opposer's Testimony and Evidence
1. The confidential testimony deposition of Michael Mooslin, opposer's president and chief operating officer, with attached exhibits.[fn7]Page 7
2. The testimony deposition of Lindsay Craine, opposer's franchise coordinator and executive assistant (no exhibits offered).
3. A notice of reliance on applicant's objections and responses to opposer's first set of interrogatories.
4. Stipulated rebuttal facts, including opposer's Exhibits 129 and 130.
Applicant's Testimony and Evidence
1. The confidential testimony deposition of Mark Tasman, applicant's president, with attached exhibits.
2. The confidential testimony deposition of Pat Burress (no exhibits offered).
3. A notice of reliance on copies of third-party registrations from the USPTO Trademark Electronic Search System ("TESS") database.[fn8]
4. A notice of reliance on opposer's responses to applicant's first requests for admissions.[fn9]
5. A notice of reliance on opposer's objections and responses to applicant's first and second set of interrogatories.[fn10]Page 8
6. A notice of reliance on "The Real White Pages" for Greater Atlanta (business), edition December 2010; and the "Verizon White Pages" for South Hampton Roads, edition October 2009-2010.[fn11]
7. A notice of reliance on website materials, namely, articles from the Internet about "do-it-yourself" pottery studios, Internet web pages advertising a variety of goods and services under names that include "color me," and a Dun Bradstreet report listing businesses in their database that use "color me" in their company names.[fn12]
Standing
Opposer introduced a certified copy of its pleaded registration prepared by the USPTO showing the current status and title of the registration.[fn13] Because opposer has properly made its pleaded registration of record, opposer has established its standing. Cunningham v. Laser Golf Corp.,222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); LiptonIndustries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Priority
Because opposer's pleaded registration is of record, Trademark Act § 2(d) priority is not an issue in this casePage 9
as to the mark and the services covered by the registration. King Candy Co. v. Eunice King's Kitchen,Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. Inre E. I. du Pont de Nemours Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re MajesticDistilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In determining whether a likelihood of confusion exists between the parties' marks in this proceeding, we have considered the below-listed factors for which testimony or evidence has been made of record. See, E. I. du Pont deNemours Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
A. The Fame of Opposer's Mark.
We first consider the strength of opposer's mark, including whether the mark is famous. Opposer argues that its mark is conceptually strong as a suggestive mark and commercially strong as a famous mark.[fn14] In this regard, applicant agrees that the mark is suggestive,[fn15] but argues that the mark is not famous.[fn16]Page 10
Fame, if it exists, plays a dominant role in the likelihood of confusion analysis because famous marks enjoy a broad scope of protection or exclusivity of use. A famous mark has extensive public recognition and renown. Bose Corp. v. QSC AudioProducts Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000); Kenner Parker Toys,Inc. v. Rose Art Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).
Fame may be measured indirectly by the volume of sales and advertising expenditures of the goods and services identified by the marks at issue, "by the length of time those indicia of commercial awareness have been evident," widespread critical assessments and through notice by independent sources of the products identified by the marks, as well as the general reputation of the products and services. Bose Corp. v. QSCAudio Products Inc., 63 USPQ2d at 1305-1306 and 1309. Although raw numbers of product sales and advertising expenses may have sufficed in the past to prove fame of a mark, raw numbers alone may be misleading. Some context in which to place raw statistics may be necessary (e.g., the substantiality of the sales or advertising figures for comparable types of products or services). Bose Corp. v.QSC Audio Products Inc., 63 USPQ2d at 1309.Page 11
Finally, because of the extreme deference that we accord a famous mark in terms of the wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of confusion analysis, it is the duty of the party asserting that its mark is famous to clearly prove it. LeadingJewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007).
The record shows that opposer has been in business since 1996;[fn17] operating (through its headquarter stores and its franchisees) in 105 locations in 21 or 22 states.[fn18] Opposer has entered into contractual relations with motion picture production companies such as Disney, Fox, Universal and Pixar whereby opposer's mark appears on-line in movie websites and in commercials that appear on cable television to promote, as a joint enterprise, both the movie and a tiein promotional product available at opposer's studios.[fn19] Opposer has also received unsolicited attention in the mainstream media in the form of articles featuring celebrities engaged in creating "do-it-yourself" pottery at opposer's studios, and opposer is "contacted by sitcoms regularly to have part of that sitcom episode take place in a Color Me Mine."[fn20] Mr. Mooslin states that opposer acceptsPage 12
the offers[fn21] although it is not clear how much, if at all, the service mark is featured in the episodes. Opposer is referred to by name in the articles.[fn22] Because opposer's advertising, sales, and franchising information has been designated as confidential, or is the type of information that may generally be considered confidential, we may only refer to it in general terms. Suffice it to say that we find the testimony and evidence regarding opposer's advertising, sales and franchising efforts sufficient to establish that opposer is a successful concern, but not that its mark has become famous. Moreover, opposer has not provided a context in which to place the raw statistics. Bose Corp. v. QSC AudioProducts Inc., 63 USPQ2d 1303, 1309 (Fed. Cir. 2002) ("raw numbers alone in today's world may be misleading"). Based on this evidence we find that the mark is recognized in the marketplace but it is not famous.
Applicant argues that opposer's mark is weak and not entitled to a broad scope of protection. In support of this argument, applicant has submitted:
1. A large number of third-party registrations and applications for marks containing the phrase "color me" (most with additional wording; none with the additional wordPage 13
"mine") to show that similar marks to those at issue for similar goods have been registered.[fn23]
2. Nine third-party registrations and applications for marks including the words "color me," and one registration for the mark COLOR MINE, wherein the word "color" has been disclaimed. Two of the registrations have disclaimers to the words "color me."[fn24]
3. Pages from "The Real White Pages" for Greater Atlanta Business, edition December 2010, and "Verizon White Pages" for South Hampton, edition October 2009-2010, showing, respectively, five and three listings for company names starting with "Color Me" and including a third word as the final part of the name (two of these are "Color Me Mine" business listings).[fn25]
4. Internet web pages advertising a variety of goods and services under names that include "color me," such as "ColorMe Company The Home of Child-Drawn Arts Crafts" for craft activities,[fn26] "Color Me House" for playhouses,[fn27] "Color Me Daisy" for scrapbooking products,[fn28] "Color Me Yoga" for coloring books,[fn29] "Color Me Gemz" for an activity product,[fn30]Page 14
"Color Me Velvet" for coloring bags,[fn31] "Color Me Happy" for painting pottery,[fn32] "Color Me Flowers" for making flowers[fn33] and "Color Me Pottery" for a do-it-yourself pottery studio.[fn34]
5. Articles from the Internet about "do-it-yourself" pottery studios, including "Profile of a Paint Your Own Pottery Studio;"[fn35] an article entitled "Do-it-yourself creativity fires ceramics business;"[fn36] and a Dun Bradstreet report listing businesses in their database that use "color me" in their company names.[fn37]
These third-party registrations and applications, website pages and news articles do not prove that opposer's mark COLOR ME MINE is weak.[fn38] Moreover, applicant has not proffered any testimony or evidence regarding the extent, if any, to which these "color me" marks may have been put. Prior to registration, a pending application has "no probative value other than as evidence that the application was filed."Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1403 n. 4 (TTAB 2010), citing In re PhillipsVan Heusen Corp., 63 USPQ2d 1047, 1049 n. 4 (TTAB 2002). With respect to the third-party registrations, absentPage 15
evidence of actual use of the marks shown therein, third-party registrations have little probative value because they are not evidence that the marks are in use on a commercial scale or that the public has become familiar with them. SeeSmith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is not aware of registrations reposing in the U.S. Patent and Trademark Office). As to the white pages entries, these do not show the nature of the goods or services that the listed companies may offer, the extent of their sales or how well they are known by consumers. See Sports Authority, 63 USPQ2d at 1798 (web sites and directory listings give no indication as to actual sales, when the mark was adopted, or customer familiarity with the marks); Fort Howard Paper Co. v.Kimberly-Clark Corp., 221 USPQ 732, 737 n. 9 (TTAB 1984) (trade directory listings incompetent by themselves to prove use of marks or that public is exposed to them).
We find that the evidence of record establishes that opposer's COLOR ME MINE mark is strong but not famous for purposes of likelihood of confusion.
B. The similarity or dissimilarity of the marks in theirentireties as to appearance, sound, connotation and commercialimpression.
We find, under this du Pont factor, that applicant's mark COLOR ME MINE is identical to opposer's pleaded mark in terms of appearance, sound, meaning and commercialPage 16
impression. Applicant does not contend otherwise, although applicant argues that opposer generally uses other marks and trade dress together with the mark COLOR ME MINE to market and advertise its services. We must, however, consider the marks as applied-for and as registered, rather than as to how they may appear in actual commercial use. See Cunningham v. LaserGolf Corp., 222 F.3d 943, 950, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000) (irrelevant that applicant had a particular display for his mark in commerce; Board correct to ignore those features).
This factor favors opposer.
C. The similarity or dissimilarity and nature of the goodsand services described in the application andregistration.
This DuPont factor tests whether the goods or services offered under the same or similar marks are sufficiently related in a commercial sense that consumers would be likely to assume they emanate from the same source of origin. We note at the outset that because the marks are identical, the extent to which opposer's services and applicant's goods must be similar to support a finding of likelihood of confusion is lessened.See Kohler Co. v. Baldwin Hardware Corp.,82 USPQ2d 1100, 1110 (TTAB 2007); Time Warner Entertainment Co. v.Jones, 65 USPQ2d 1650, 1661 (TTAB 2002) ("[T]he greater the degree of similarity between the applicant's mark and the cited registered mark, the lesserPage 17
the degree of similarity between the applicant's goods or services and the registrant's goods or services that is required to support a finding of likelihood of confusion").
The nature and scope of a party's goods or services must be determined on the basis of the goods or services recited in the application or registration. See, e.g., Hewlett-Packard Co.v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); J J Snack Foods Corp. v. McDonald'sCorp., 932 F.2d 1460, 18 USPQ2d 1889 (Fed. Cir. 1991);Octocom Systems, Inc. v. Houston Computer Services,Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1990). It is only necessary that there be a viable relationship between applicant's identified goods and opposer's services. The issue is not whether the goods or services will be confused with each other, but rather whether the public will be confused about their source. See Safety-Kleen Corp. v. Dresser Indus.,Inc., 518 F.2d 1399, 1404, 186 USPQ 476, 480 (C.C.P.A. 1975); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). It is sufficient that the circumstances surrounding the parties' marketing of their respective goods or services are such that they are likely to be encountered by the same persons under circumstances that would give rise to the mistaken belief that they originate from the same source. See, e.g., On-lineCareline Inc. v. America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000).Page 18
Although in different artistic media, both parties provide a do-it-yourself painting experience. Applicant's product is designed to be decorated at home,[fn39] and while opposer's customers typically work in opposer's studios, they can also take kits "to-go" for use at home, or engage in a paint-your-own ceramic activity with pottery and supplies purchased from opposer, at locations other than in opposer's studio.[fn40] Both sell pens or paint for decorating a partially-completed item.[fn41] Because of the identity of the marks and the shared do-it-yourself experience offered by the goods and services at issue, we find that consumers would believe that the goods and services of the parties emanate from a single source. Therefore, we find that there is a commercial relation between opposer's services and applicant's goods.
This factor favors opposer.
C. The similarity or dissimilarity of likely-to-continuetrade channels and classes of consumers.
Inasmuch as the identification of goods in applicant's application and the recitation of services in opposer's registration do not contain limitations describing a particular channel of trade or class of customer, the parties' respective goods and services are assumed to travel in all normal channels of trade to all usual consumers forPage 19
these goods and services. Packard Press, Inc. v.Hewlett-Packard Co., 227 F.2d 1352, 1361, 56 USPQ2d 1351 (Fed. Cir. 2000); Canadian Imperial Bank v. Wells FargoBank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
The evidence shows that both opposer's services and applicant's goods are targeted to the same customer base. Opposer's president testified that opposer "cater[s] primarily to women 18 to 54 and children under 12."[fn42] Applicant's president testified that applicant's target market is "a girl between the ages of five and eleven"[fn43] and that the ultimate end buyer would be "a woman age twenty-five and up that is a parent or grandparent."[fn44]
Similarly, the evidence shows that the parties' respective channels of trade are related. Nothing in the identification of goods for applicant's mark restricts applicant to "mass market retail" or "specialty chains"[fn45] such as Wal-Mart and Toys R Us or Michaels and AC Moore, as identified by Mr. Tasman as entities that buy applicant's products directly from applicant, rather than in "lifestyle shopping centers, entertainment-oriented shopping centers, [] vibrant downtown walking streets [and] in malls,"[fn46] where opposer's franchise studios are typically located.Page 20
Similarly, opposer's registration does not exclude opposer from rendering services in strip-type malls such as those that typically contain an AC Moore or Michaels, where applicant sells its products.
As for the parties' advertising, while applicant itself advertises only to the trade,[fn47] AC Moore (one of applicant's customers) has advertised applicant's products to the general public by way of a multiple-page flyer booklet (known in the trade as a "run of press")[fn48] featuring AC Moore's retail line (including applicant's products), which run of press is distributed as a newspaper insert.[fn49]
Opposer also advertises via inserts that may appear in "Pennysaver or some other kind of magazine."[fn50]
In view of the foregoing, we find that the likely-to continue channels of trade and classes of consumers are similar.
D. The conditions under which and buyers to whom sales aremade, i.e. "impulse" vs. careful, sophisticatedpurchasing.
Applicant's products generally retail for "anywhere from five dollars to fifteen dollars."[fn51] The average price paid for opposer's services by customers is in the range ofPage 21
$26 to $50 per person;[fn52] the average customer spends "$22 for a ceramic piece on average and $7 for paint time fee for a total of $29 on average."[fn53] Both parties' goods or services would be considered relatively inexpensive or moderately priced. Therefore, the relevant consumer is not generally sophisticated and gives little thought to his or her purchasing decision.
E. Instances of actual confusion.
Opposer introduced the testimony of its franchise coordinator and executive assistant, Lindsey Craine, and applicant introduced the testimony of Patricia Burress, regarding one purported instance of confusion. Ms. Burress, residing in North Carolina, called Ms. Craine in mid-December, 2009,[fn54]
seeking information on how to purchase applicant's weekender bag for her nine-year old granddaughter as a holiday gift.[fn55] Her granddaughter's sister "had gotten the messenger bag, and she wanted the weekender bag."[fn56] Ms. Craine explained that opposer does not make the weekender bag,[fn57] took down Ms. Burress' information, and concluded the telephone call. The following day, Ms. Burress called her son. He gave herPage 22
applicant's name from reading the tag on his daughter's messenger bag. Ms. Burress then found applicant's listing on-line and called to locate a store near her.[fn58] She then purchased the bag from a store in Ashland, "about an hour or so away."[fn59]
Applicant argues that this single instance does not establish actual confusion because Ms. Burress testified that she never actually saw applicant's bag before calling Ms. Craine;[fn60] that she did not think that opposer made the bag, but "was just kind of desperate to find this gift;"[fn61] and that once she found applicant's website and saw the bag, "that made a world of difference."[fn62]
We recognize that Ms. Burress may have had doubts whether opposer, a ceramic company, could be the source of origin of applicant's weekender bag. Nonetheless, she called opposer because the marks are identical and the goods and services are related. Moreover, we note that applicant's business is seasonal,[fn63] and that this instance of confusion occurred during the second holiday season, approximately one year and one-half after applicant firstPage 23
began selling goods bearing the mark in June or July of 2008.[fn64]
Inasmuch as evidence of actual confusion is very difficult to obtain, and any such evidence can be criticized, this evidence, while not conclusive as to the likelihood of confusion, illustrates the potential for confusion.
F. Balancing the factors.
In view of the fact that the marks are identical, the goods and services are commercially related and are available to the same classes of consumers through similar trade channels, we find that applicant's registration of the mark COLOR ME MINE for "decorative purse and tote bag hobby arts and crafts activity kits containing purse or bag, markers to decorate bag, and accessory stationery items including blank journals, erasers, notebooks, paper, pencils, pens," is likely to cause confusion with opposer's mark COLOR ME MINE for a "`do-it-yourself' ceramic studio, providing the use of various supplies and equipment; namely, unpainted ceramic bowls, dishes and containers in a variety of shapes and sizes, picture frames, night lights, salt and pepper shakers, paints, glazes and firing materials."
Decision: The opposition is sustained and registration to applicant is refused.
[fn1] Issued October 24, 1995; renewed.
[fn2] Amended Notice of Opposition, paragraph 1.
[fn3] Tasman Dep., p. 55.
[fn4] Applicant's First and Second Notices of Reliance.
[fn5] Applicant's Third Notice of Reliance.
[fn6] Tasman Dep., pp. 30-51; Exhibits 103-120.
[fn7] Because of the overdesignation of testimony and evidence by the parties, it is not clear what is intended to be truly "Confidential" and "Confidential Attorney's Eyes Only." Therefore, in rendering our decision, we have treated only testimony and evidence relating to financial advertising, sales, and opposer's franchising information (i.e., opposer's list of franchisees by name and address, which is marked "for studio use only" and a spreadsheet that tells sales figures for each store and each franchisee, marked "attorneys eyes only") as confidential, and have referred to such only in general terms. See Edwards Lifesciences Corp. v. VigiLanzCorp., 94 USPQ2d 1399, 1402 (TTAB 2010).
[fn8] Applicant's First Notice of Reliance, Exhibits A, B and C; Applicant's Third Notice of Reliance, Exhibits B and C.
[fn9] Applicant's Second Notice of Reliance, Ex. A.
[fn10] Applicant's Second Notice of Reliance, Exhibits B and C.
[fn11] Applicant's Third Notice of Reliance, Ex. A.
[fn12] Tasman Dep., pp. 30-51, Exhibits 103-120.
[fn13] Mooslin Dep., p. 8; Ex. 101.
[fn14] Opposer's Brief, p. 9.
[fn15] Applicant's Brief, p. 37.
[fn16] Applicant's Brief, p. 33.
[fn17] Mooslin Dep., p. 6.
[fn18] Mooslin Dep., p. 8.; Ex. 102.
[fn19] Mooslin Dep., p. 18 and pp. 23-32; Exhibits 109-111.
[fn20] Mooslin Dep., pp. 34-36; Ex. 113.
[fn21] Mooslin Dep., p. 35, ln. 5: "We love it, we always take it."
[fn22] Mooslin Dep., p. 35; Ex. 113.
[fn23] Applicant's Notice of Reliance, Exhibits A, B, and C.
[fn24] Applicant's Third Notice of Reliance, Ex. B.
[fn25] Applicant's Third Notice of Reliance, Ex. A.
[fn26] Tasman Dep., p. 32; Ex. 104.
[fn27] Tasman Dep., p. 33; Ex. 105.
[fn28] Tasman Dep., p. 34; Ex. 106.
[fn29] Tasman Dep., p. 37; Ex. 108.
[fn30] Tasman Dep., p. 40; Ex. 111.
[fn31] Tasman Dep., pp. 42-43; Ex. 113.
[fn32] Tasman Dep., p. 44; Ex. 114.
[fn33] Tasman Dep., p. 44; Ex. 115.
[fn34] Tasman Dep., p. 46; Ex. 116.
[fn35] Tasman Dep., p. 47; Ex. 117.
[fn36] Tasman Dep., p. 48-49; Ex. 118.
[fn37] Tasman Dep., p. 50; Ex. 120.
[fn38] "Color me" as an independent phrase is not before us.
[fn39] Tasman Dep., p. 16.
[fn40] Mooslin Dep., pp. 10 and 22.
[fn41] Mooslin Dep., p. 62; Tasman Dep., p. 15.
[fn42] Mooslin Dep., p. 13.
[fn43] Tasman Dep., p. 17.
[fn44] Tasman Dep., p. 8-9.
[fn45] Tasman Dep., p. 18.
[fn46] Tasman Dep., p. 8-9.
[fn47] Tasman Dep., p. 23.
[fn48] Tasman Dep., p. 91.
[fn49] Tasman Dep., pp. 58 and 91.
[fn50] Mooslin Dep., p. 15.
[fn51] Tasman Dep., p. 22.
[fn52] Opposer's Response to Applicant's First Request for Admissions, No. 20.
[fn53] Opposer's Response to Applicant's Second Set of Interrogatories, No. 21.
[fn54] Craine Dep., p. 7.
[fn55] Burress Dep., p. 6.
[fn56] Burress Dep., p. 7.
[fn57] Craine Dep., p. 9.
[fn58] Burress Dep., p. 12.
[fn59] Burress Dep., p. 13.
[fn60] Burress Dep., p. 8.
[fn61] Burress Dep., p. 11.
[fn62] Burress Dep., p. 13.
[fn63] Tasman Dep., p. 21.
[fn64] Tasman Dep., p. 19.