An order denying a motion for summary judgment in a TTAB opposition in which we took over during the discovery period. The decision is based mainly on the movant's (Opposer's) failure to meet the high standard for determining that there were adequate facts in the record before the Board to enter such a ruling before the final disposition.
In the opinion the Board addresses the issue of "tacking" with respect to the application. A trademark owner may claim priority in a mark based on the first use date of a similar, but technically distinct, mark, but only in the rare instance where the previously used mark is the legal equivalent of the mark in question. The Board noted that in this case tacking had not even been pled by our predecessor counsel, which for what it's worth was a good thing considering that, in the Board's view, such a claim would have failed because the marks are not legal equivalents.
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