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TTAB Dismisses CAKE DIVAS Opposition as Applicant Proves Priority Via Analogous Trademark Use

Opposer lost this TTAB 2(d) food fight when it lost the priority battle. It claimed that Applicant's mark CAKEDIVA for "greeting cards featuring photographs of cakes and cookies" and for "cakes ... and edible decorations made of sugar for cakes and cookies," would likely cause confusion with the mark CAKE DIVAS for "custom cake making, baking, designing and decorating services for edible and faux cakes"]. The Board also threw out Opposer's fraud claim because Opposer never pleaded fraud and raised the issue for the first time in its final brief. Cake Divas v. Charmaine V. Jones, Opposition No. 91173301 (February 23, 2010) [not precedential].Evidence: The Board first dealt with several evidentiary issues, sustaining Opposer's objection to Applicant's testimony describing her website under the best evidence rule (FRE Section 1002), but it denied Opposer's similar objection to testimony about Applicant's business card because Opposer itself elicited the testimony on cross-examination...continue to full post

Full post as published by The TTABlog on March 10, 2011 (boomark / email).