TTAB Dismisses JEWEL HUNTER Oppposition: Opposer's Faulty Testimony Declarations Failed To Establish "Standing"

• Published date: 09 September 2022
• Subject Matter: Intellectual Property, Trademark
• Law Firm: Wolf, Greenfield & Sacks, P.C.
• Author: Mr John L. Welch

It doesn't often happen that an opposer fails to prove "standing" - i.e., entitlement to bring a statutory cause of action - but that's what happened in this opposition to registration of the mark JEWEL HUNTER for game software. Opposer Shanghai Zhenglang Technology claimed likelihood of confusion with its identical common law mark for a "game app", but it failed to properly submit any evidence. And so the Board dismissed the opposition due to lack of standing. Shanghai Zhenglang Technology Co., Ltd. v. Superbox, Inc., Opposition No. 91251457 (September 2, 2022) [not precedential] (Opinion by Judge Christen M. English).

Opposer Shanghai submitted three testimony declarations from its president. However, the third declaration was filed outside of opposer's testimony period, and so the Board gave it no consideration. The other two declarations did not comply with the applicable requirements for testimony declarations, and so they too were given no consideration.

The Board pointed out that, under Trademark Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1), witness testimony may be submitted in the form of a sworn affidavit or an unsworn declaration under Trademark Rule 2.20. Trademark Rule 2.20 provides that "[i]nstead of an oath, affidavit, or sworn statement, the language of 28 U.S.C. 1746, or the following declaration language, may be used":

The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements and the like may jeopardize the validity of the application submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true.

The first and second declarations were not under oath and did not use the language of Rule 2.20.

The purported declarations were executed in Shanghai, China. Under 28 U.S.C. § 1746, the following language may be used for unsworn declarations executed outside the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the...