ESTTA Tracking number:
`
`Filing date:
`
`ESTTA1328328
`12/13/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer information
`
`Name
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`Zhengzhou Daihua Trading Co., Ltd
`
`Limited Company
`
`Incorporated or
`registered in
`
`China
`
`RM. 1102, 11/F UNIT 3, BLDG. 7,
`BAIMIAO COMMUNITY, JINSHUI DIST.,
`ZHENGZHOU, HENAN, 450000
`CHINA
`
`WEITAO CHEN
`60 CUTTER MILL RD, SUITE 100C
`GREAT NECK, NY 11021
`UNITED STATES
`Primary email: chen@faan.com
`Secondary email(s): info@faan.com
`7187662567
`
`Docket no.
`
`Applicant information
`
`Application no.
`
`97759803
`
`Opposition filing
`date
`
`Applicant
`
`12/13/2023
`
`Publication date
`
`11/21/2023
`
`Opposition period
`ends
`
`12/21/2023
`
`Han, Yinghua
`NO. 249, HEDONG STREET,
`XIANGBIAO VILLAGE, WUJIAYAO, JINGXING
`SHIJIAZHUANG, 050399
`CHINA
`
`Goods/services affected by opposition
`
`Class 027. First Use: Dec 8, 2022 First Use In Commerce: Dec 8, 2022
`All goods and services in the class are opposed, namely: Bathroom rugs
`
`Grounds for opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`No use of mark in commerce before application,
`amendment to allege use, or statement of use
`was due
`
`Applicant not rightful owner of mark for identified
`goods or services
`
`Fraud on the USPTO
`
`Trademark Act Section 1(a) and (c)
`
`Trademark Act Section 1
`
`In re Bose Corp., 580 F.3d 1240, 91 USPQ2d
`1938 (Fed. Cir. 2009)
`
`

`

`Mark cited by opposer as basis for opposition
`
`U.S. registration
`no.
`
`6652128
`
`Register
`
`Principal
`
`Registration date
`
`02/22/2022
`
`Application date
`
`03/24/2021
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TOKLYUIE
`
`NONE
`
`Class 021. First use: First Use: Jan 13, 2021 First Use In Commerce: Jan 13,
`2021
`Aquarium ornaments; Bath brushes; Bento boxes; Bottle openers, electric and
`non-electric; Boxes of precious metal for sweets; Cake molds; Chocolate molds;
`Coasters, not of paper or textile; Confectioners' molds; Cookery molds in the
`shape of circles; Ice cube molds; Jar openers; Pudding molds; Toilet brush and
`toilet brush holder sets
`
`Attachments
`
`231213 TOKLYUIE 97759803 Notice of Opposition.pdf(93291 bytes )
`
`Signature
`
`/Weitao Chen/
`
`Name
`
`Date
`
`Weitao Chen
`
`12/13/2023
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`))))))))))
`
`Opposed Mark: TOKLYUIE
`Opposed Mark Application No.: 97759803
`
`Zhengzhou Daihua Trading Co., Ltd,
`
`v.
`
`Han, Yinghua,
`
`Opposer,
`
`Applicant.
`
`NOTICE OF OPPOSITION
`
`In the matter of trademark application Serial No. 97759803 for the trademark TOKLYUIE
`(“the Application”) by Han, Yinghua (hereinafter “Applicant''), Zhengzhou Daihua Trading Co.,
`Ltd (hereinafter “Opposer'') believes that it will be damaged by registration of said trademark.
`The grounds for opposition are as follows:
`
`I.
`
`BACKGROUND ON OPPOSER
`
`1. Opposer, Zhengzhou Daihua Trading Co., Ltd a limited company of China, having its
`address at Rm. 1102, 11/F Unit 3, Bldg. 7, Baimiao Community, Jinshui Dist., Zhengzhou,
`Henan CHINA 450000.
`2. Opposer does business under the trademark TOKLYUIE (hereinafter, “Opposer’s Mark”)
`for its products in class 021, including but not limited to, Aquarium ornaments; Bath
`brushes; Bento boxes; Bottle openers, electric and non-electric; Boxes of precious metal
`for sweets; Cake molds; Chocolate molds; Coasters, not of paper or textile; Confectioners'
`molds; Cookery molds in the shape of circles; Ice cube molds; Jar openers; Pudding molds;
`Toilet brush and toilet brush holder sets (hereinafter “Opposer’s Goods”).
`
`1
`
`

`

`3. Opposer’s Mark or its substantially similar forms has been used in commerce at least as
`early as 01/13/2021. Opposer’s Mark has been filed for trademark registration with USPTO
`on 03/24/2021 with an US Serial Number 90599866, and was successfully registered on
`02/22/2022 with an US Registration Number 6652128.
`
`II.
`
`APPLICANT AND THE APPLICATION
`
`4. Upon information and belief, Applicant Han, Yinghua is an individual of China, with an
`address of No. 249, Hedong street, Xiangbiao village, Wujiayao, Jingxing Shijiazhuang
`CHINA 050399.
`5. Upon information and belief, Applicant seeks to register “TOKLYUIE” (“Applicant’s
`Mark”) as a trademark in international class 027 for: “Bathroom rugs” (hereinafter
`“Applicant’s Goods”) (hereinafter “Applicant’s Application”).
`6. Applicant’s Application was filed on 01/18/2023, based upon Applicant’s claimed date of
`first use of said mark on 12/08/2022. The Application was published for opposition in the
`Official Gazette on 11/21/2023. This Notice of Opposition is timely.
`
`III. GROUNDS FOR OPPOSITION OF THE MARK
`
`COUNT 1. PRIORITY AND LIKELIHOOD OF CONFUSION
`
`7. Paragraphs 1 - 6, above, are re-alleged and incorporated herein by reference as if set forth
`in full herein.
`8. Upon information and belief, the earliest date upon which Applicant can rely is clearly
`after the use and acquisition of rights in Opposer’s Mark by Opposer. As such, Opposer’s
`rights in Opposer’s Mark are prior and superior to any rights Applicant may claim in
`Applicant’s Mark.
`if not confusingly similar,
`9. Applicant’s Mark is identical,
`commercial impression to Opposer’s Mark.
`10. The goods identified in Applicant’s application and the goods provided by Opposer are the
`same or closely commercially related, and travel in the same trade channels.
`
`in sound, meaning, and
`
`2
`
`

`

`11. Based on Opposer’s prior rights in Opposer’s Mark, the similarity of the parties’ marks,
`and the identity and relatedness of the parties’ goods offered under their respective marks,
`consumers are likely to be deceived into falsely believing that the goods offered by
`Applicant under Applicant’s Mark originate from or are otherwise associated with or
`endorsed by Opposer, or that there is some relationship between Applicant and Opposer or
`the goods of Applicant and Opposer, all to Opposer’s injury and harm.
`12. Thus, registration of Applicant’s Mark as applied for in the Application is likely to cause
`confusion, to cause mistake, or to deceive the public into the false belief that the goods
`offered by Applicant under Applicant’s Mark come from or are otherwise sponsored by or
`connected with Opposer, in violation of Section 2(d) of the Lanham Act, 15 U.S.C. §
`1052(d).
`13. For the foregoing reasons, Opposer is likely to be harmed by the issuance of a registration
`for Applicant’s Mark as applied for in the Application.
`
`COUNT 2. NO USE OF MARK IN COMMERCE
`
`14. Opposer repeats the allegations contained in paragraphs 1 through 13 above as if fully set
`forth herein.
`15. Upon information and belief, Applicant had not sold or transported all of the applied-for
`goods under Applicant’s Mark in United States commerce as of the Application filing date
`or the Applicant’s claimed date of first use.
`16. Pursuant to Trademark Act Sections 1(a) and (c), Applicant’s Mark shall not be allowed
`registration.
`17. For the foregoing reasons, Opposer will be harmed by the issuance of a registration for
`Applicant’s Mark.
`
`COUNT 3. APPLICANT IS NOT RIGHTFUL OWNER OF THE MARK
`
`18. Opposer repeats the allegations contained in paragraphs 1 through 17 above as if fully set
`forth herein.
`
`3
`
`

`

`19. Upon information and belief, Applicant, in its application to register the TOKLYUIE mark,
`frequently stated that it was the sole and exclusive owner of the TOKLYUIE mark when it
`did not have clean, or any title at all, to the TOKLYUIE mark.
`20. At no point did Opposer assign, sell, or otherwise transfer the rights to the TOKLYUIE or
`any substantially similar mark thereof to Applicant.
`21. Opposer first created and first used the TOKLYUIE mark and is the rightful owner to the
`TOKLYUIE mark and any substantially similar mark thereof.
`22. Pursuant to Section 1 of the Trademark Act, 15 U.S.C. § 1051, Applicant’s Mark shall not
`be allowed registration.
`23. For the foregoing reasons, Opposer will be harmed by the issuance of a registration for
`Applicant’s Mark.
`
`COUNT 4. FRAUD BASED ON FALSE DECLARATION OF USE
`
`24. Opposer repeats the allegations contained in paragraphs 1 through 23 above as if fully set
`forth herein.
`25. In connection with the Application, Applicant claimed that it was using Applicant’s Mark
`in United States commerce with all of the applied-for goods.
`26. Further, in the Application, Applicant, through counsel, made the following declaration
`under penalty of perjury:
`a. The mark is in use in commerce and was in use in commerce as of the filing date of
`the application on or in connection with the goods/services in the application;
`b. The specimen(s) shows the mark as used on or
`in connection with the
`goods/services in the application and was used on or in connection with the
`goods/services in the application as of the application filing date; and
`c. To the best of the signatory’s knowledge and belief,
`the facts recited in the
`application are accurate.
`27. Upon information and belief, Applicant had not sold or transported all and/or any of the
`applied-for goods under Applicant’s Mark in United States commerce as of the Application
`filing date or the Applicant’s claimed date of first use.
`28. Further, upon information and belief, Applicant was fully aware that it had never sold or
`transported all and/or any of the applied-for goods under Applicant’s Mark in United States
`
`4
`
`

`

`commerce prior to the Application filing date or the Applicant’s claimed date of first use,
`and therefore had never used Applicant’s Mark in United States commerce in connection
`with all and/or any of the goods set forth in the Application when it swore under penalty of
`perjury in the Application that the mark was in use for all such goods.
`29. Because, upon information and belief and based on Opposer’s investigation, Applicant had
`never sold or transported all and/or any of the goods specified in the Application under
`Applicant’s Mark, and therefore was not using Applicant’s Mark on all and/or any of the
`goods specified in the Application at the time Applicant filed the Application under
`Section 1(a) of the Lanham Act, 15 U.S.C. § 1051(a), the Declaration submitted in support
`of the Application was false.
`30. Upon information and belief, Applicant knew at the time it filed the Application that it was
`not using and had not used Applicant’s Mark in United States commerce in connection
`with all and/or any of the goods identified in the Application and that the Declaration
`submitted in support of the Application was false.
`31. Upon information and belief, Applicant
`intended to deceive the USPTO by falsely
`asserting that it was using Applicant’s Mark in commerce in connection with all of the
`goods identified in the Application as of the filing date of the Application. Upon
`information and belief, Applicant’s false statement was made for the purpose of obtaining a
`registration to which Applicant was not entitled and to which Applicant knew it was not
`entitled.
`32. The USPTO would not have approved the Application for publication and registration but
`for the false statement
`that Applicant was using Applicant’s Mark in commerce in
`connection with all of the goods identified in the Application as of the filing date. Thus the
`falsehood was a material misstatement of fact.
`33. As a result of Applicant’s willful and materially false statement made in connection with
`the Application, Applicant has committed fraud against the USPTO, which invalidates the
`Application.
`34. For the foregoing reasons, Opposer will be harmed by the issuance of a registration for
`Applicant’s Mark.
`
`5
`
`

`

`IV.
`
`CONCLUSION
`
`35. The Applicant’s Application should be refused. The registration of Applicant’s Mark is
`inconsistent with Opposer’s rights in Opposer’s mark and will cause damage to Opposer.
`
`WHEREFORE, Opposer respectfully prays that the registration of Applicant’s Mark be
`refused in its entirety and that this opposition be sustained.
`
`Dated: 12/13/2023
`
`Respectfully submitted,
`
`/Weitao Chen/
`Weitao Chen
`Tel: (718) 766-2567
`Email: chen@faan.com
`Attorney for Opposer
`
`6
`
`