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O.T.H. Enter. v Vasquez

O.T.H. Enter. v Vasquez

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Published by: propertyintangible on Oct 21, 2012
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10/21/2012

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 Mailed:September 28, 2012
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____O.T.H. Enterprises, Inc. d/b/a Frontera Musicv.Federico Estevan Vasquez_____Cancellation No. 92050569to U.S. Registration No. 3129130filed on February 11, 2009_____Jim Garcia of Ceronsky, Rosen, Garcia, PC for Petitioner,O.T.H. Enterprises, Inc., d/b/a/ Frontera Music.Tracy Wells of Wells Law for Registrant, Federico EstevanVasquez._____Before Catlado, Wellington, and Kuczma, Administrative Trademark Judges.Opinion by Kuczma, Administrative Trademark Judge:This cancellation proceeding stems from the 1985breakup of the Mexican band Grupo Pegasso. O.T.H.Enterprises, Inc. d/b/a Frontera Music (“petitioner”), aTexas corporation, filed a petition to cancel RegistrationNo. 3129130, owned by Federico Estevan Vasquez
THIS OPINION IS NOT CITABLEAS A PRECEDENT OF THET.T.A.B.
 
Cancellation No. 920505692(“registrant”) for the mark GRUPO PEGASSO and Design, shownbelow:for ““Musical sound recordings” in International Class 9and “Entertainment services, namely, live performances by amusical group” in International Class 41 (“the registeredmark”).
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  As grounds for cancellation, petitioner allegespriority of use and likelihood of confusion, abandonment ofthe registered mark, non-use and fraud in the procurementof respondent’s trademark registration. In support of itsclaim of abandonment and non-use, petitioner alleges thatregistrant, a member of the Grupo Pegasso band, left theband in 1985 and formed a different band which used thename “Pegasso del Pollo Estevan,” to record and manufacture
1
Registration No. 3129130 alleges a date of first use and firstuse in commerce of September 9, 1979, for both Classes and issuedon August 15, 2006, based on an application filed on May 17,2005. The word “Grupo” is disclaimed and the English translationof the mark is Pegasus Group. Registrant filed its declarationof continued use pursuant to Section 8 of the Trademark Act of1946, 15 U.S.C. §1058, on February 28, 2012, after the petitionfor cancellation was filed. The Section 8 declaration has beenaccepted.
 
Cancellation No. 920505693recordings sold only in Mexico.
2
With respect topetitioner’s fraud claim, it alleges that registrant madeblatant misrepresentations with malice and an intent todefraud the U.S. Patent and Trademark Office (“USPTO”).Specifically, petitioner alleges that registrant’sfraudulent conduct includes registrant’s assertion that theregistered mark was in use in the United States and thatthe specimen submitted by registrant to show use of itsmark in commerce contained images of albums that are ownedby petitioner and others that were digitally altered.In his answer, registrant denied the salientallegations and alleged several defenses, identified asaffirmative defenses, including that registrant is thelegal owner of the registered mark in the United States andMexico; that registrant has continuously used theregistered mark in interstate commerce in the United States
2
In its Petition to Cancel, petitioner alleged that registrant“left the group in 1985, thereby losing the right to use thename” and later alleged that after registrant “abandoned theoriginal group, ‘Grupo Pegasso,’ he formed a different groupunder the name ‘
Pegasso del Pollo Estevan
’” (emphasis within).In its trial brief, petitioner also argued that registrantabandoned the GRUPO PEGASSO mark and built its reputation aroundthe mark “Grupo Pegasso del Pollo Estevan.”
See
Petitioner’sTrial Brief, Docket # 47, p. 34. However unartfully pled, it isclear that registrant recognized petitioner’s abandonment claimas evidenced by his devotion of a section of his Motion forSummary Judgment (
see
Registrant’s Motion for Summary Judgment,Docket # 10, p. 21) to petitioner’s allegations that registrantabandoned the mark, his identification of abandonment of the markin his Statement of Issues, and his submission of arguments onabandonment in his Trial Brief.
See
Registrant’s Trial Brief,Docket # 49, pp. 33-35.

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