In a precedential decision issued in September, the Trademark Trial and Appeal Board (“TTAB”) denied a cancellation filed by JNF LLC (“JNF”) against Harwood International Inc. (“Harwood”).

JNF applied for the mark THE HAPPIEST HOUR and Harwood owns a registration for HAPPIEST HOUR. Both marks are for use in connection with bar and restaurant services. JNF sought cancellation of the Harwood registration based on alleged prior use and a likelihood of confusion. The TTAB found that confusion between the marks was likely because the services are identical and the marks are nearly identical. The parties and the TTAB focused on priority. JNF LLC v. Harwood Int’l Inc., 2022 TTAB LEXIS 328 (TTAB Sept. 21, 2022).

JNF, as the petitioner, bore the burden of establishing priority, i.e., that it used its mark in commerce before Harwood’s constructive use filing date. Normally, JNF would need to prove priority by a preponderance of the evidence. However, JNF originally filed its application with a date of first use after Harwood’s constructive use date and amended its application to be before Harwood’s constructive use date only after being confronted with Harwood’s mark as a bar to registration. When a party amends its application to allege an earlier use date, it must establish that date with clear and convincing evidence.

The TTAB carefully scrutinized the record to determine whether JNF proved priority by clear and convincing evidence. JNF primarily relied upon the testimony declarations of its CEO and its CEO’s friend. That testimony “offered years after the fact,” was impaired by a “lack of knowledge of key aspects of [the] business and [a] lack of credible corroborating documentation.” Ultimately, the TTAB held that “[t]estimony regarding events from years before, uncorroborated by documents showing use of the mark before the critical date, is insufficient to prove a prior date of use by clear and convincing evidence.”

The TTAB also rejected JNF’s argument based on use analogous to trademark use. Such use is any use of a mark that creates an association in the mind of the general public between the mark and the services offered in connection with the mark, including advertising or similar pre-sale activities. Analogous use is insufficient to provide a basis for trademark registration, but it can be sufficient to establish priority. JCF’s evidence of analogous use consisted of a press release, a NEW YORK TIMES article listing THE HAPPIEST HOUR among over a dozen soon-to-open bars, and a article listing it among twenty bars and restaurants. The TTAB found this use was “not sufficiently clear, widespread and repetitive” to create an association in the mind of the general public between the mark and the services offered in connection with the mark.