Sterling Jewelers opposed registration of the mark WHAT YOUR HEART DESIRES by Romance & Co.  Following the close of Sterling’s testimony period, with Sterling having submitted no evidence and taken no testimony, Romance brought a motion for involuntary dismissal of the opposition for failure to prosecute.

Romance alleged that Sterling did not submit a proper copy of its pleaded registration into evidence.  Sterling attached only a photocopy of its registration to the notice of opposition.  Rule 2.122(d)(1), however, clearly requires that the current status of and current title to the registration also be made of record.  Thus, the Board held that the submitted photocopy was not sufficient.  Sterling could have entered the current status and title of its registration by notice of reliance or through testimony, but it did not. Sterling requested the Board grant it leave to submit further evidence regarding current status and title, which the Board denied because Sterling did not demonstrate that its failure to submit any evidence or take any testimony was the result of excusable neglect.  

Sterling also argued that because Romance admitted in its answer that Sterling is the “listed owner of record” of the registration, the ownership of the registration is not in question.  The Board did not construe Romance’s admission as establishing current ownership of the registration.  Rather, the Board viewed the admission as merely establishing that opposer is identified as the owner on the photocopy attached to the notice of opposition.

Because Sterling failed to submit any evidence supporting its claim of likelihood of confusion, failed to prove any common law rights in its pleaded mark or that it currently owns the pleaded registration or that the registration is valid, the Board granted the applicant’s motion for dismissal of the opposition.

Sterling Jewelers Inc. v. Romance & Co. Inc., Opposition No. 91207312 (TTAB March 27, 2014) [precedential].