Finding that Opposer Rapid Inc.’s star witness “had not only been dishonest with the Board, but he also engaged in spoliation of evidence,” the Board threw out this Section 2(d) opposition. Rapid claimed priority of use of its mark HUNGR for food ordering application software, and likelihood of confusion with applicant’s proposed mark HUNGRY for overlapping software. Rapid’s witness “engaged in a pattern of fabrication and spoliation of evidence, which vitiates the probative effect of his testimony and evidence, and taints the remainder of evidence that might otherwise indirectly support Opposer’s claim of priority.” Unable to prove priority, Rapid’s claim failed. Rapid Inc. v. Hungry Marketplace, Inc., Opposition No. 91236033 (July 22, 2022) [precedential] (Opinion by Judge Mark Lebow).
Rapid’s proofs included the testimony declaration of Aaron Mortensen, its Vice President and Chief Information Officer, and the declarations of four third-parties who averred that they had encountered the HUNGR mark in connection with food delivery services. Applicant was entitled to rely on its May 4, 2016 filing date as its constructive first use date.
Mr. Mortensen claimed that his company began using the HUNGR mark in 2012, relying on certain documentary support that the Board found of questionable probative value. Rapid also relied on a promotional flyer allegedly distributed in 2012, but that document too was of dubious provenance, as were certain documents regarding installations of the HUNGR software from Google Play and Apple.
Of critical importance in the Board’s decision was a RestaurantNews.com press release purportedly announcing the launching of an updated version of the HUNGR app in November 15, 2015. Actually, the press release originally referred to an app called TOGO, but in November 2016, Mr. Mortensen contacted the publication and arranged to have it “updated” because it “used the wrong name.” On cross-examination, Mr. Mortensen denied that he ever contacted the publication (except once to ask about its advertising rates). Similarly, Mr. Mortensen denied having contacted the Wayback Machine for the specific purpose of changing the date on the archived version of the RestaurantNews.com webpage. That testimony was false, and was proven so by Applicant. The Board found this testimony and evidence to be “particularly egregious, and casts a dark shadow over the remaining testimony and evidence he provided.”
After carefully reviewing all evidence and testimony in this case . . . we find that not only has Opposer’s “star witness” Mr. Mortensen been dishonest with the Board, but he also engaged in spoliation of evidence. “Spoliation refers to ‘the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” Optimal Chem. Inc. v. Srills LLC, 2019 USPQ2d 338409, at *16 (TTAB 2019) (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)).
Invoking the legal maxim “falsus in uno, falsus in omnibus” (false in one thing, false in everything), the Board looked askance at his remaining testimony. Furthermore, the Board found that the third-party witnesses, “while perhaps intending to testify truthfully about the dates on which they purportedly first used or became familiar with Opposer’s HUNGR app, merely signed the declarations based on the advice of or their relationship with Mr. Mortensen without having any independent recollection of the specific dates to which they testified.”
The Board therefore found that Rapid failed to meet met its burden of proving priority by a preponderance of the evidence. “Because opposer cannot establish its priority, a necessary element of the ground of likelihood of confusion, opposer’s priority and likelihood of confusion claim is dismissed.” Threshold TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1039 (TTAB 2010).
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Text Copyright John L. Welch 2022.