                    NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                    2009-1084
                   (Opposition Nos. 91/175,625 and 91/175,373)



                              H. MICHAEL BISHOP,

                                                    Appellant,

                                         v.

                              MARINA FLOURNOY,

                                                    Appellee.


     H. Michael Bishop, of Long Beach, California, pro se.

     Marina Flournoy, of Germantown, Tennessee, pro se.


Appealed from:    United States Patent and Trademark Office
                  Trademark Trial and Appeal Board
                            NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2009-1084

                      (Opposition Nos. 91/175,625 and 91/175,373)

                                 H. MICHAEL BISHOP,

                                                                  Appellant,

                                               v.

                                 MARINA FLOURNOY,

                                                                  Appellee.

Appeal from the United States Patent and Trademark Office, Trademark Trial and
Appeal Board.

                           ___________________________

                           DECIDED: April 1, 2009
                           ___________________________



Before MAYER, DYK, and MOORE, Circuit Judges.

PER CURIAM.

      H. Michael Bishop (“Bishop”) appeals from a decision of the United States Patent

and Trademark Office, Trademark Trial and Appeal Board (“the Board”). The Board

dismissed Bishop’s opposition to the registration of two trademark applications filed by

Marina     Flournoy     (“Flournoy”)     for        the   marks      “100%     ART”   and

“ONEHUNDREDPERCENT ART” for failure to timely submit admissible evidence which

would establish his standing and a ground for refusal of registration.           Bishop v.

Flournoy, Opposition Nos. 91/175,625, 91/175,737, 2008 WL 4233891 (T.T.A.B. Sept.
5, 2008) (“Board Decision”). We remand to the Board with instructions to reconsider the

issues of standing, fraud, and likelihood of confusion in light of Flournoy’s admissions.

                                     BACKGROUND

       Flournoy sought registration of the marks “100% ART” (Application 78780720)

and “ONEHUNDREDPERCENT ART” (Application 78780721). Both applications were

for marks under International Class 16, which covers:

       Printed informational cards in the field of art, cards, greeting cards,
       correspondence cards, gift cards, invitation cards, mounted posters, note
       cards, occasion cards, paintings, paintings and calligraphic works,
       paintings and their reproductions, posters, tarot cards, unmounted
       posters, water color finished paintings, pastel and oil colors finished
       paintings.

       Bishop filed a notice of opposition to both applications, attaching evidence in

support of his case, in which he alleged (1) standing; (2) priority and a likelihood of

confusion with his previously used mark; and (3) that Flournoy had committed fraud in

applying for and prosecuting her applications. Flournoy, pro se, filed a response to the

opposition in which she asserted that Bishop had not established any right to relief.

However, Flournoy did admit that she had knowledge that Bishop had previously been

using both of the marks on his artwork. Evidence attached to the notice of opposition is

not considered “unless identified and introduced in evidence as an exhibit during the

period for the taking of testimony.” 37 C.F.R. § 2.121; see § 2.122. Bishop did not file

any testimony or notices of reliance during the thirty-day testimony period. Bishop then

filed trial briefs in each opposition, attaching evidence in support of his case. Flournoy

did not file any response. Bishop then filed reply briefs, arguing that he was entitled to

judgment because Flournoy failed to file any trial briefs.




2009-1084                                 2
       The Board consolidated the two oppositions. Bishop failed to “file testimony or a

notice of reliance in either opposition.” 1   Board Decision at 1. With respect to the

evidence attached to the notices of opposition, the Board did not consider them

because, under 37 CFR § 2.122(c), “an exhibit attached 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.” See

Trademark Trial and Appeal Board Manual of Procedure § 704.05(a) (2004) (hereinafter

“T.B.M.P.”). With respect to the exhibits attached to Bishop’s trial briefs, the Board did

not consider them because, under T.B.M.P. § 704.05(b), “[e]xhibits 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.” Relying on 37 CFR § 2.123(l) that “[e]vidence not obtained and filed in

compliance with [the rules] will not be considered,” the Board stated that the exhibits

Bishop had attached to his notices of opposition and his trial briefs were not timely

submitted. Board Decision at 1. The Board ruled that even though Flournoy had not

filed a response to Bishop’s trial brief, Bishop had failed to prove his opposition by a



       1
              As stated in T.B.M.P. § 704.02:
       Certain types of evidence, such as official records and printed publications
       as described in 37 CFR § 2.122(e), need not be introduced in connection
       with the testimony of a witness but may instead be made of record by filing
       the materials with the Board under cover of one or more notices of
       reliance during the testimony period of the offering party. A notice of
       reliance is essentially a cover sheet for the materials sought to be
       introduced. This cover sheet is entitled ‘notice of reliance’ and it serves,
       as the title suggests, to notify opposing parties that the offering party
       intends to rely on the materials submitted thereunder in support of its
       case. The notice of reliance must include a description of the proffered
       materials and, in some instances, must indicate the relevance of those
       materials to the case.


2009-1084                                3
preponderance of evidence, stating that Bishop “has not proven [his] standing or any

pleaded ground for relief.” Board Decision at 2. Specifically as to his pleaded grounds

for relief, the Board found that Bishop:

       has not proven that [he] has any prior trademark right upon which [his]
       claims of damage or likelihood of confusion may be predicated. Further,
       [he] has not proven the falsity of any statement made by applicant during
       prosecution of the subject applications or that such statements were made
       with the requisite intent to support opposer’s claim of fraud.

Board Decision at 2 n.2. The Board did not mention Flournoy’s admissions.

       Bishop timely appealed.      Flournoy did not file a brief.   We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(4)(B).

                                      DISCUSSION

       “To successfully prosecute an opposition, the opposer must plead and prove two

things: (1) that it has standing to oppose in that it is likely to be damaged by a

registration of the applicant’s mark; and (2) that there are valid grounds why the

applicant is not entitled under law to register the mark he claims.”        3 J. Thomas

McCarthy, McCarthy on Trademarks and Unfair Competition, § 20:3 (West 2008). We

review the Board's legal determinations de novo and its factual findings for substantial

evidence. In re Bose, 476 F.3d 1331, 1334 (Fed. Cir. 2007).

       Standing is a question of law that we review de novo. Isr. Bio-Eng’g Project v.

Amgen, Inc., 475 F.3d 1256, 1262-63 (Fed. Cir. 2007).            “A petition to cancel a

registration of a mark” may be filed “by any person who believes that he is or will be

damaged . . . by the registration of a mark . . . .”   15 U.S.C. § 1064.     To establish

standing to file such a petition, Bishop needed only to plead and prove facts showing

that he has “a real interest in the proceedings and [has] a reasonable basis for his belief




2009-1084                                  4
of damage.” See Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed. Cir. 1999) (quotation

marks omitted). This is not a rigorous requirement, as statutory standing requires only

that the party seeking cancellation reasonably believe that it is likely to be damaged by

the registration. Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000).

       Bishop argues that Flournoy’s admissions prove that Bishop has standing. The

rules specifically recognize that “statements in pleadings may have evidentiary value as

admissions against interest by the party that made them.”         T.B.M.P. § 704.06(a).

Flournoy admitted that she had knowledge that Bishop had been using both of the

marks on his original artwork. Flournoy also admitted that the category in which she

filed for these trademarks includes original artwork.

       While we agree that the Board was not required to consider Bishop’s untimely

submitted evidence, the admissions made by Flournoy may have been sufficient to

establish standing and fraud or likelihood of confusion. The Board did not specificially

address whether Flournoy’s admissions were sufficient to establish Bishop’s standing

and request for relief.   Rather than decide on appeal whether the admissions are

sufficient, we remand for the Board to address in the first instance whether the

admissions satisfied Bishop’s burden of proof.




2009-1084                                5
