                              ON REHEARING

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-2566


KEITH ALEXANDER ASHE,

                Plaintiff – Appellant,

          v.

PNC FINANCIAL SERVICES GROUP, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.       Paul W. Grimm, District Judge.
(8:15-cv-00144-PWG)


Submitted:   April 21, 2016                  Decided:   June 13, 2016


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Keith Alexander Ashe, Appellant Pro Se. Naresh Kilaru, Mark S.
Sommers, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Keith    Alexander      Ashe       appeals      the    district    court’s      order

dismissing his civil complaint against PNC Financial Services

Group,    Inc.     (“PNC”)     for      trademark       infringement       as    barred    by

collateral       estoppel.         In     our       initial    consideration      of    this

matter, we dismissed the appeal as untimely.                          Ashe has submitted

evidence      that   he    filed      a    timely      notice    of     appeal   with     the

district      court,    but    that       notice     was     rejected    for    failure    to

include the required filing fees.                       We agree that, under these

circumstances, Ashe filed a timely notice of appeal.                              See Fed.

R. App. P. 3(a)(2) (“An appellant's failure to take any step

other than the timely filing of a notice of appeal does not

affect the validity of the appeal”); Han Tak Lee v. Houtzdale

SCI, 798 F.3d 159, 164 (3d Cir. 2015) (“a clerk's office cannot

reject a notice of appeal simply because the filing fee has not

been     paid”).          Accordingly,          we    grant     Ashe’s     petition       for

rehearing.

       Nevertheless, we conclude that the district court did not

err in dismissing Ashe’s case as barred by collateral estoppel.

We review de novo a district court’s dismissal of a complaint on

such grounds.        Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698,

703 (4th Cir. 1999).

       Ashe    argues     on   appeal       that     the     district    court    erred    in

dismissing his complaint rather than converting PNC’s motion to

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a motion for summary judgment.                   Although a motion to dismiss

generally cannot reach the merits of an affirmative defense,

“where facts sufficient to rule on an affirmative defense are

alleged in the complaint, the defense may be reached by a motion

to    dismiss      filed   under    Rule   12(b)(6).”       Goodman      v.    Praxair,

Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).                       Moreover, a

district court may properly “take judicial notice of facts from

a    prior    judicial      proceeding     when    the    [collateral         estoppel]

defense raises no disputed issue of fact.”                    Andrews v. Daw, 201

F.3d 521, 524 n.1 (4th Cir. 2000).                       Because Ashe “does not

dispute      the    factual    accuracy    of    the   record    of     his   previous

suit,” the district court did not err in taking judicial notice

of a prior Trademark Trial and Appeal Board (“TTAB”) decision.

Id.

       Ashe     next      argues   that    the    district      court    incorrectly

determined that the issue of priority in the TTAB decision was

identical to the issue of priority presented in the trademark

infringement case.           The district court concluded, and PNC argues

on appeal, that the issue of priority in a trademark opposition

case    before      the    TTAB    is   always    identical     to    the     issue   of

priority in a federal trademark infringement case.                      In contrast,

Ashe argues that the Supreme Court in B & B Hardware, Inc. v.

Hargis Indus., Inc., 135 S. Ct. 1293, 1299 (2015), held that the

issue of priority will, at least sometimes, be different.

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     Even     assuming      that    B     &     B   Hardware      stands      for     the

proposition that, when considering the issue of priority, courts

must determine whether the actual use of a mark is the same as

the use stated in a trademark application, Ashe has alleged no

actual use of the mark other than those uses described in his

trademark application.        Consequently, in this case, the issue of

priority    decided   by    the    TTAB       was   identical     to   the    issue    of

priority presented to the district court.

     Therefore, we affirm the district court’s judgment.                              We

dispense    with     oral    argument         because      the    facts      and    legal

contentions    are    adequately        presented     in    the   materials        before

this court and argument would not aid the decisional process.



                                                                               AFFIRMED




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