It's not often that a plaintiff in a TTAB proceeding fails to clear the statutory standing hurdle, but that's what happened here. Petitioner Gayla Phillips sought cancellation of a registration for the mark STARPOINT for entertainment services, claiming non-ownership and fraud. However, she addressed only the non-ownership claim in her brief, and so the fraud claim was waived. Respondents did not submit a brief or any evidence. However, Petitioner Phillips failed to get any evidence properly into the record. Gayla Phillips v. Marvin Ennis and Kayode Adeyemo, Cancellation No. 92070386 (July 11, 2022) [not precedential] (Opinion by Judge Thomas W. Wellington).
During her trial period, Phillips submitted a "Trial Brief and ACR Request," including 14 exhibits. The arguments in the brief were premature and untimely. As to the exhibits, the Board gave them no consideration. Many of the exhibits (for example, photos of record albums, letters, and emails) were not self-authenticating, nor were they authenticated by declarations or affidavits.
Another exhibit was entitled "Affidavit" and included a notarized signature, but did not include the required attestation. See Rules 2.123(a)(1) ("penalty of perjury"), 2.20 (acceptable language for attestation), and F.R.E. 603. A second affidavit included the required attestation, but it was executed in November 2019, more than a year before Petitioner's testimony period. Therefore, the Board refused to consider that affidavit.
Phillips' brief also cited to exhibits to the petition to cancel and to material submitted with a summary judgment motion, but those items must be properly submitted during Petitioner's trial period. See Rule 2.122(c). Internet hyperlinks contained in her brief were also improper.
In short, Petitioner Phillips failed to properly introduce any evidence into the record. Thus, the record consisted only of the pleadings and the file of the challenged registration.
Statutory standing is a threshold issue in every inter partes proceeding. Here, Phillips' lack of evidence "prevents her from crossing this threshold." The record lacked proof of hers real interest in the proceeding and her reasonable belief of damage.
And so, the Board denied the petition for cancellation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
