THIS OPINION IS NOT A
`PRECEDENT OF THE TTAB
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`Mailed:
`January 30, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`JA Communications
`v.
`Jonathan Roche Fitness Ventures (IP) LLC
`_____
`
`Cancellation No. 92052836 against Registration No. 3391997
`and
`Cancellation No. 92052844 against Registration No. 3792022 1
`_____
`
`Peter J. Ims of Westman, Champlin & Kelly, PA for JA Communications.
`
`Peter B. Scull of Hamilton, DeSanctis & Cho, LLP for Jonathan Roche Fitness
`Ventures (IP) LLC.2
`
`_____
`
`
`Before Seeherman, Quinn and Greenbaum, Administrative Trademark Judges.
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`Opinion by Greenbaum, Administrative Trademark Judge:
`
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`JA Communications (petitioner) seeks to cancel two registrations owned by
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`Jonathan Roche Fitness Ventures (IP) LLC (respondent) for the standard character
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`mark NO EXCUSES WORKOUT (WORKOUT disclaimed) for:
`
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`1 The two proceedings were consolidated on March 8, 2011, before trial commenced.
`2 William T. Slamkowski of Jackson Kelly PLLC had also represented respondent through
`the filing of respondent’s brief on the case. On May 2, 2012 respondent withdrew the
`associate power of attorney for Mr. Slamkowski. We accept this withdrawal.
`
`

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`Cancellation Nos. 92052836 & 92052844
`
`
`Audio and video recordings featuring exercise, fitness and
`weight loss methods; Digital media, namely, pre-recorded
`video cassettes, digital video discs, digital versatile discs,
`downloadable audio and video recordings, DVDs, and high
`definition digital disks featuring exercise, fitness and
`weight
`loss methods; Downloadable multimedia file
`containing artwork, text, audio, video, games, and
`Internet Web links relating to exercise, fitness and weight
`loss methods; DVDs featuring exercise, fitness and weight
`loss methods; Pre-recorded CDs, video tapes, laser disks
`and DVDs featuring exercise, fitness and weight loss
`methods, in International Class 93
`
`and
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`Educational services, namely, conducting seminars and
`conferences in the field of fitness and distribution of
`course material in connection therewith; Educational
`services, namely, developing, arranging, and conducting
`educational conferences and programs and providing
`courses of instruction in the field of fitness; Educational
`services, namely, conducting online exhibitions and
`displays in the field of fitness; Entertainment services,
`namely, providing a website featuring photographic,
`audio, video and prose presentations featuring fitness;
`Health club services, namely, providing instruction and
`equipment in the field of physical exercise; Personal
`coaching services in the field of fitness; Personal trainer
`services; Personal training services, namely, strength and
`conditioning
`training; Physical education
`services;
`Training services in the field of fitness, in International
`Class 41.4
`In its first amended petition for cancellation, petitioner alleges that
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`respondent’s mark, when applied to respondent’s goods and services, so resembles
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`petitioner’s previously used trademark, service mark or trade name NO EXCUSES
`
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`3 Registration No. 3792022, issued on May 25, 2010, based on an application filed on
`February 11, 2009 and alleging May 1, 2005 as the date of first use anywhere and in
`commerce.
`4 Registration No. 3391997, issued on March 4, 2008, based on an application filed on
`September 11, 2006, and alleging May 1, 2005 as the date of first use anywhere and in
`commerce.
`
`
`
`2
`
`

`
`Cancellation Nos. 92052836 & 92052844
`
`WORKOUT for “lectures, seminars, articles, books, manuals and video recordings
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`featuring exercise, fitness and weight loss methods and routines” and for “providing
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`information regarding exercise routines and other information that promotes
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`muscle toning, cardiovascular conditioning, fitness and health” as to be likely to
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`cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Am.
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`Pet. ¶1. Petitioner alleges that it “has continuously used its NO EXCUSES
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`WORKOUT mark or trade name in commerce since about at least July 2002 to the
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`present.” Id. ¶2.
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`Respondent, in its answer, denied the salient allegations in the amended
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`petition, and asserted that petitioner cannot prove likelihood of confusion because
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`petitioner does not have proprietary rights superior to those of respondent.5
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`Answer, at Affirmative Defenses ¶¶ 1 and 2. Inasmuch as petitioner is asserting
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`common-law rights, it is petitioner’s burden to prove the acquisition of prior rights.
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`Thus, the “affirmative defenses” based on this assertion are merely amplifications of
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`respondent’s denial of petitioner’s pleaded claims.
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`Petitioner and respondent filed trial briefs, and petitioner filed a reply brief.
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`
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`Respondent’s Cross-Motion to Strike
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`Before we make our final determination on the merits, we must address
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`respondent’s motion to strike certain testimony and exhibits, consideration of which
`
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`5 Respondent asserted several other affirmative defenses, but did not pursue them at trial
`or in its brief, thus waiving the defenses.
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`
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`3
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`

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`Cancellation Nos. 92052836 & 92052844
`
`the Board deferred until final hearing.6
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`During petitioner’s testimony period, petitioner took the depositions of John
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`Abdo, President and CEO of petitioner; Gary Chappell, President and CEO of
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`petitioner’s publisher Nightingale Conant; and, as an adverse witness, respondent’s
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`founder and CEO, Jonathan Roche. On November 15, 2012, during respondent’s
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`testimony period, respondent filed a motion to strike ten of the eleven exhibits that
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`petitioner introduced during Mr. Abdo’s testimonial deposition (Exhibits A through
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`J), ten of the twenty-six exhibits that petitioner introduced during Mr. Roche’s
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`testimonial deposition (Exhibits V through Y, AA, EE, FF, HH, II and JJ), the sole
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`exhibit that petitioner introduced during Mr. Chappell’s testimonial deposition
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`(Exhibit KK),7 and all related testimony, which ranges from one-third to one-half of
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`each transcript. The motion is fully briefed.
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`
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`Exhibit A
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`Exhibit A consists of two photographs or scans of two DVDs bearing the
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`wording JOHN ABDO’S NO EXCUSES WORKOUT on the labels, where one label
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`includes a photograph of a man, and one label includes a photograph of a woman.8
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`The words NO EXCUSES appear on a separate line and in much larger font than
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`the other words.
`
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`6 The Board also deferred until final hearing consideration of petitioner’s second motion for
`leave to file an amended petition. As discussed infra, we need not and do not decide this
`motion.
`7 During Mr. Chappell’s deposition, petitioner also elicited testimony regarding Exhibits B
`and C over respondent’s objections. Exhibits B and C are among the ten exhibits from Mr.
`Abdo’s deposition that petitioner seeks to strike.
`8 Mr. Abdo testified that the content of the DVDs is the same even though the labels differ.
`Abdo Test., p. 10.
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`4
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`

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`Cancellation Nos. 92052836 & 92052844
`
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`Contrary to respondent’s arguments regarding improper authentication and
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`lack of foundation, we find that petitioner properly introduced the document into
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`evidence. Mr. Abdo testified based on his first-hand knowledge that he produced the
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`DVDs, the DVDs contain an exercise routine, and they have been sold consistently
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`since 2001 or 2002. Abdo Test., pp. 10-16. In light of this testimony, we further find
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`that petitioner did not use this exhibit in a “misleading manner” (Mot. to Strike, p.
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`17), even if the copyright date on the DVDs is not legible. Accordingly, we deny the
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`motion to strike Exhibit A.
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`
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`Exhibit B
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`Exhibit B consists of a one-page photograph of a display of petitioner’s multi-
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`faceted program entitled “John Abdo’s Vital Living from the Inside-Out” (hereafter,
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`“Vital Living program”). The Vital Living program, as shown in Exhibit B, includes
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`a manual and a video component in the form of cassettes and DVDs all entitled
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`JOHN ABDO’S VITAL LIVING FROM THE INSIDE-OUT (where VITAL LIVING
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`appears in larger font). The Vital Living program also includes a workout video
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`bearing the label JOHN ABDO’S NO EXCUSES WORKOUT (where NO EXCUSES
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`appears in larger font), shown on the lower left side of Exhibit B, and a manual
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`entitled JOHN ABDO’S NO EXCUSES! WORKOUT & EATING PLAN (where NO
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`EXCUSES! appears in larger font), shown on the middle right side of the exhibit.
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`Respondent asserts that petitioner is estopped from relying on this exhibit,
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`contending that petitioner’s counsel first produced Exhibit B on September 20,
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`2012, the day before Mr. Abdo’s testimony deposition. See e.g., Panda Travel, Inc. v.
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`5
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`

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`Cancellation Nos. 92052836 & 92052844
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`Resort Option Enterprises, Inc., 94 USPQ2d 1789, 1792-93 (TTAB 2009) (documents
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`not produced until after the start of trial stricken). There is no question that Exhibit
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`B is responsive to certain discovery requests, and that petitioner did not produce
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`this document as part of its disclosures or during discovery. However, the record
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`shows that Mr. Abdo provided Exhibit B (and Exhibit A) to respondent’s prior
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`counsel, Kevin Callahan, in response to a cease and desist email on July 12, 2010.9
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`As respondent has had a copy of Exhibit B since July 12, 2010, we deny the
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`motion to strike this exhibit. We see no undue prejudice to respondent based on
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`petitioner’s failure to also produce the document during discovery, or to identify it
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`on September 18, 2012 as one of the documents that would be used during Mr.
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`Abdo’s testimony.
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`As will be seen below, none of the other exhibits that respondent seeks to
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`exclude is outcome determinative. Given this, coupled with the number of
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`objections, we see no compelling reason to discuss the other objections.
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`Record
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`The record consists of the pleadings; the files of the involved registrations;
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`the testimonial depositions, with accompanying exhibits, of Messrs. Abdo, Chappell
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`and Roche; and each party’s notice of reliance.
`
`
`9 In response to the motion to strike, petitioner’s counsel submitted, with his own
`declaration, a copy of the July 12, 2010 email exchange (on which he was copied), and
`printouts of Exhibits A and B, which he avers were attached to Mr. Abdo’s email.
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`The revocation of Mr. Callahan and appointment of respondent’s current counsel, Mr. Scull,
`was filed on November 17, 2010, approximately 10 days after initial disclosures were due.
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`6
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`

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`Cancellation Nos. 92052836 & 92052844
`
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`The Parties
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`Both parties are involved in the fitness and training industry, and both have
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`developed workouts that can be done outside the gym in a limited amount of time.
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`Mr. Abdo, petitioner’s principal, testified that he developed the “no excuses
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`philosophy” in the 1980s, after hearing various excuses from athletes and other
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`individuals about why they could not exercise (e.g., injury, time, motivation). Mr.
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`Abdo further testified that in conjunction with this philosophy, he developed an
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`exercise routine, which he named the “No Excuses Workout,” that provides a total
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`body workout that anyone can do anywhere, at any time. Abdo Test., pp. 7-8.
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`Mr. Roche, respondent’s founder and CEO, testified that respondent’s NO
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`EXCUSES WORKOUT video “is in-home strength training using body weight that
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`can be done in 6-, 12-, 18- or 24-minute increments.” Roche Test., p. 37. According to
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`Mr. Roche, respondent provides the NO EXCUSES WORKOUT video as part of a
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`larger program entitled the “No Excuses Workout System,” which now is web-based.
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`Id., pp. 67-69, 131. Mr. Roche further testified that respondent also provides, as
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`part of the “No Excuses Workout System,” web-based training services for various
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`races, such as marathons and mini-triathlons. Id., p. 68.
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`Standing
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`We first consider whether petitioner has standing to bring this opposition
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`proceeding. Standing is a threshold issue that must be proven by a plaintiff in every
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`inter partes case.10 See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025
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`10 Contrary to petitioner’s assertions in its reply brief, respondent was not required to plead
`petitioner’s lack of standing as an affirmative defense, or even to raise the issue.
`7
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`

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`Cancellation Nos. 92052836 & 92052844
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`(Fed. Cir. 1999); Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 2
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`USPQ2d 2021, 2023 (Fed. Cir. 1987); Lipton Indus., Inc. v. Ralston Purina Co., 670
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`F.2d 1024, 213 USPQ 185, 188 (CCPA 1982). The purpose of the standing
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`requirement, which is directed solely to the interest of the plaintiff, is to prevent
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`litigation when there is no real controversy between the parties. Lipton, 213 USPQ
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`at 189.
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`Under Section 14 of the Trademark Act, 15 U.S.C. § 1064, anyone with a
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`reasonable belief that he would be damaged by a registration has standing to file a
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`petition to cancel the registration. Respondent contends that all documentary
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`evidence points either to John Abdo or JA Fitness, rather than the named
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`petitioner, JA Communications, as the proper party to this proceeding; that Mr.
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`Abdo’s testimony on the issue is “vague” and “self-serving”; and that his testimony,
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`in general, suffers from a “lack of credibility.” Resp. Br., p. 5. We disagree, and
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`instead find that Mr. Abdo’s testimony is credible and establishes that petitioner
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`uses the wording shown in petitioner’s Exhibits A and B for goods similar to the
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`goods and the subject matter of the services identified in the subject registrations.
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`Abdo Test., pp. 86-89. As that wording includes NO EXCUSES and WORKOUT,
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`petitioner possesses a real interest in the proceeding and is not a mere
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`intermeddler. Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1022 (TTAB
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`2009) (common-law use sufficient to establish standing).
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`
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`8
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`

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`Cancellation Nos. 92052836 & 92052844
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`Priority
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`To establish priority on a likelihood of confusion claim brought under
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`Trademark Act §2(d), a party must prove that it owns “a mark or trade name
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`previously used in the United States … and not abandoned….” Trademark Act
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`Section 2, 15 U.S.C. §1052. A party may establish its own prior proprietary rights in
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`a mark through ownership of a prior registration, actual use or through use
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`analogous to trademark use, such as use in advertising brochures, trade
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`publications, catalogs, newspaper advertisements and Internet websites which
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`create a public awareness of the designation as a trademark identifying the party as
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`a source. See Trademark Act §§2(d) and 45, 15 U.S.C. §§1052(d) and 1127. See also
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`T.A.B. Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996).
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`There must be “regular or recurring activity” such as to constitute source
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`identification in the eyes of consumers. Giersch v. Scripps, 90 USPQ2d 1020, 1023
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`(TTAB 2009).
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`As petitioner does not own an existing registration, petitioner must rely on
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`its common-law use to prove priority. In order for a plaintiff to prevail on a claim of
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`likelihood of confusion based on its ownership of common-law rights in a mark, the
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`mark must be distinctive, inherently or otherwise, and the plaintiff must show
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`priority of use. Id; see also Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317,
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`209 USPQ 40 (CCPA 1981).
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`The labels for the DVDs in Exhibit A and the video in Exhibit B bear the
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`wording JOHN ABDO’S NO EXCUSES WORKOUT. Further, based on the manner
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`9
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`

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`Cancellation Nos. 92052836 & 92052844
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`in which the mark is displayed, with NO EXCUSES in larger letters and on a
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`separate line from JOHN ABDO’s, which is above it, and WORKOUT, which is
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`below it, NO EXCUSES makes a separate commercial impression such that we can
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`conclude that it is, per se, a trademark for the DVD and video. The same is true for
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`the manual: NO EXCUSES appears on a separate line and in larger letters than
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`JOHN ABDO’S, which is above it, and WORKOUT & EATING PLAN which is
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`below it. In addition, the term WORKOUT, which is defined as “a structured regime
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`of physical exercise,”11 is a generic term for petitioner’s exercise videos, and
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`therefore has no source-identifying function for these goods.12 Accordingly, we focus
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`on petitioner’s use of NO EXCUSES in the remainder of this decision.
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`In a case involving common-law rights, “the decision as to priority is made in
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`accordance with the preponderance of the evidence.” Hydro-Dynamics Inc. v. George
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`Putnam & Company Inc., 811 F.2d 1470, 1 USPQ2d 1772 (Fed. Cir. 1987). In this
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`case, the most relevant evidence consists of Exhibits A and B to Mr. Abdo’s
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`testimonial deposition, and the associated testimony of Messrs. Abdo and Chappell.
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`Mr. Abdo testified that the NO EXCUSES workout consists of free-hand and
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`calisthenics exercises that can be done anywhere, anytime, with no need for
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`equipment, that he compiled into a video. Abdo Test., p. 8. He further testified that
`
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`11 Definition from Dictionary.com (based on The Random House Dictionary (2013)). The
`Board may take judicial notice of dictionary definitions, including online dictionaries with
`regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
`University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596
`(TTAB 1982), aff'd., 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
`12 Similarly, WORKOUT has no source-identifying function for respondent’s goods and
`services and, as noted previously, it has been disclaimed in the involved registrations. See
`In re Creative Goldsmiths of Wash., Inc., 229 USPQ 766, 768 (TTAB 1986).
`10
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`
`
`

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`Cancellation Nos. 92052836 & 92052844
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`the NO EXCUSES manual shown as part of the Vital Living program displayed in
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`Exhibit B contains every exercise on the video, with still figures depicting the
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`beginning and end of each exercise, and a description of the exercise and the
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`muscles involved, plus a separate eating plan with nutritional guidelines. Abdo
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`Test., p. 24. Mr. Abdo also testified, and Mr. Chappell confirmed, that Nightingale
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`Conant has sold the Vital Living program since 2002, and that the NO EXCUSES
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`video and manual were included in each sale (Abdo Test., pp. 28, 31-33, 42-43;
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`Chappell Test., pp. 8-9, 14-15). In addition, Mr. Abdo testified that since 2001 or
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`2002, he continuously has sold the NO EXCUSES DVDs displayed in Exhibit A
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`through his website, through the Life Extension Foundation website, and at some of
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`his lectures and seminars. Abdo Test., pp. 15-16. Based on the foregoing testimony
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`and evidence, we find that petitioner has established common-law rights to the
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`mark NO EXCUSES for “manuals and video recordings featuring exercise, fitness
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`and weight loss methods and routines” through actual use since at least 2002.
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`Respondent does not claim use of its mark prior to 2005. Roche Test., pp. 23,
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`24, 30, 31, 33-35, et al. Since petitioner has shown use of NO EXCUSES as a mark
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`for the pleaded “manuals and video recordings featuring exercise, fitness and
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`weight loss methods and routines” since 2002, petitioner has established its
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`priority.
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`Inasmuch as petitioner has established priority, we now turn to the
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`likelihood of confusion analysis.
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`11
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`

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`Cancellation Nos. 92052836 & 92052844
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`
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`Likelihood of Confusion
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`Our determination under Section 2(d) is based on an analysis of all of the
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`probative facts in evidence that are relevant to the factors bearing on the issue of
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`likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
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`USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
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`considerations are the similarities between the marks and the similarities between
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`the goods and/or services at issue. See Federated Foods, Inc. v. Fort Howard Paper
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`Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
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`We begin with a comparison of petitioner’s mark NO EXCUSES and
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`registrant's mark NO EXCUSES WORKOUT in their entireties in terms of sound,
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`appearance, meaning and commercial impression. See Palm Bay Imports, Inc. v.
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`Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
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`Cir. 2005). In comparing the marks, the test is not whether the marks can be
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`distinguished when subjected to a side-by-side comparison, but rather whether the
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`marks are sufficiently similar in terms of their overall commercial impressions that
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`confusion as to the source of the goods and services offered under the respective
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`marks is likely to result. The focus is on the recollection of the average purchaser,
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`who normally retains a general, rather than a specific, impression of trademarks.
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`See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). In addition,
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`while marks must be compared in their entireties, it is well settled that one feature
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`of a mark may have more significance than another, and there is nothing improper
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`
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`12
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`

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`Cancellation Nos. 92052836 & 92052844
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`in giving greater weight to the more significant feature. See In re National Data
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`Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
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`In this case, NO EXCUSES constitutes the entirety of petitioner’s mark. NO
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`EXCUSES also is the dominant and most significant feature of respondent’s mark,
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`not only because it appears first in respondent’s mark (see Palm Bay, 73 USPQ2d at
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`1692), but also because it has stronger source-identifying potential than the word
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`WORKOUT. As mentioned above, WORKOUT is a generic term for the subject
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`matter of the goods and services identified in the registrations, and appropriately
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`has been disclaimed in each registration. Descriptive and disclaimed matter
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`typically is less significant or less dominant when comparing marks. See
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`Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
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`2000), quoting In re National Data Corp., 224 USPQ at 752 (Fed. Cir. 1983)
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`(“Regarding descriptive terms, this court has noted that the descriptive component
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`of a mark may be given little weight in reaching a conclusion on the likelihood of
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`confusion.”). Thus, the addition of the generic word WORKOUT is not sufficient to
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`distinguish the marks. See In re Chatam Int'l Inc., 380 F.3d 1340, 71 USPQ2d 1944
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`(Fed. Cir. 2004).
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`Because of the overall similarities of the marks, consumers are likely to view
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`NO EXCUSES and NO EXCUSES WORKOUT as variations of each other, with
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`both marks indicating a single source for the goods and services. Even if we treat
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`NO EXCUSES as mildly suggestive of an exercise program that is convenient and
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`time-efficient, this term has the same meaning for petitioner’s goods and the goods
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`
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`13
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`

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`Cancellation Nos. 92052836 & 92052844
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`and services described in the registrations. Therefore, we find that the parties’
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`marks are substantially similar in sound, appearance, connotation and commercial
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`impression.
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`We turn next to a consideration of the goods and services, channels of trade
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`and class of purchasers. As noted above, the identification of goods in Registration
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`No. 3792022 includes audio and video recordings, DVDs and pre-recorded CDs,
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`video tapes and laser discs all featuring exercise, fitness and weight loss methods.
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`The record shows that petitioner uses the substantially similar NO EXCUSES mark
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`on exercise and fitness videos (Abdo Test., pp. 8, 10, 18), and that respondent’s
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`identified goods must be deemed to encompass the type of videos on which
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`petitioner uses its mark. We make our determination about likelihood of confusion
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`based on the goods and services as they are described in respondent’s registrations.
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`Octocom Systems, Inc., v. Houston Computers Services, Inc., 918 F.2d 937, 16
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`USPQ2d 1783, 1787 (Fed. Cir. 1990). This is sufficient for us to find that petitioner’s
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`goods and the goods in Registration No. 3792022 are legally identical, and for this
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`factor to favor petitioner. See Tuxedo Monopoly, Inc. v. General Mills Fun Group,
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`648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v. TVNET.Net,
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`Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
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`Further, the various educational, entertainment, health club and personal
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`training services identified in Registration No. 3391997 also pertain to exercise,
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`fitness and weight loss, the subjects of petitioner’s videos and manual. It is well
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`recognized that goods and services may be related if they involve the same subject
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`
`
`14
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`

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`Cancellation Nos. 92052836 & 92052844
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`matter. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed.
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`Cir. 1988) (furniture and general merchandise store services); INB National Bank v.
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`Metrohost, Inc., 22 USPQ2d 1585, 1587-1588 (TTAB 1992) (banking services and
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`credit cards); Steelcase, Inc. v. Steelcare, Inc., 219 USPQ 433, 435 (TTAB 1983)
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`(furniture and furniture refinishing). We therefore find that petitioner’s exercise
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`and fitness videos and manual are related to the services recited in Registration No.
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`3391997.
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`Because there are no limitations as to channels of trade or classes of
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`purchasers in the descriptions of goods and services in respondent’s registrations, it
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`is presumed that respondent’s goods and services move in all channels of trade
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`normal for those goods and services, and that they are available to all classes of
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`purchasers for those goods and services. See Coach Services Inc. v. Triumph
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`Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Packard
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`Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1360-61, 56 USPQ2d 1351, 1357
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`(Fed. Cir. 2000) (“When the registration does not contain limitations describing a
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`particular channel of trade or class of customer, the goods or services are assumed
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`to travel in all normal channels of trade.”). Such purchasers would include
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`individuals who are too busy to exercise at a gym. Respondent’s principal, Mr.
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`Roche, confirmed this presumption. Roche Test., p. 37 (“our target customer is
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`really a stay-at-home mom who’s too busy to go to a gym.”). Petitioner also targets
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`the same class of customers. Abdo Test., p. 8. Likewise, both parties presented
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`testimony that they sell or give away their exercise videos at educational events.
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`
`
`15
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`

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`Cancellation Nos. 92052836 & 92052844
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`Abdo Test., pp. 16, 41; Roche Test., p. 181. We therefore find that the classes of
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`purchasers and the channels of trade are, at least in part, the same.
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`
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`Conclusion
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`We have confined our discussion to the du Pont factors discussed by the
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`parties. To the extent that any other factors are relevant, we have treated them as
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`neutral.
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`For the reasons discussed above, we find that respondent’s mark NO
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`EXCUSES WORKOUT, as used on respondent’s goods and in connection with
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`respondent’s services, so closely resembles petitioner’s earlier used mark NO
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`EXCUSES, as to be likely to cause confusion, mistake or deception as to the source
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`of respondent’s goods and services.
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`
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`Decision: The petition for cancellation is sustained as to each registration.
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`Respondent’s Registrations Nos. 3792022 and 3391997 will be cancelled in due
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`course.13
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`
`13 We need not decide petitioner’s second motion for leave to amend the pleadings to add
`claims of fraud and abandonment, as entry of judgment on the likelihood of confusion claim
`will result in cancellation of respondent’s registrations, and judgment on the additional
`claims “would neither bar [respondent] from filing a new application nor allow petitioner to
`challenge it on the basis of claim preclusion,” as the claims relate specifically to the
`procurement and use of the involved registrations. Multisorb Tech., Inc. v. Pactiv Corp.,
`109, USPQ2d 1170, 1172 (TTAB 2013). “We see no point in this instance in engaging in
`further litigation over whether the registration was procured by fraud when the only
`remedy — cancellation of this registration — has already been granted and a decision on
`the fraud claim would have, at best, limited effect on petitioner's ability to challenge any
`future attempt by respondent to register the mark.” Id.
`16