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`This Opinion is not a
`Precedent of the TTAB
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`Mailed: June 3, 2024
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
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`Trademark Trial and Appeal Board
`_____
`
`In re Fusion CBD Products LLC
`_____
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`Serial No. 88825450
`_____
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`
`Sherry Flax of Saul, Ewing Arnstein & Lehr LLP for Fusion
`CBD Products LLC.
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`Sara Anne Helmers, Trademark Examining Attorney, Law Office 130,
`John Lincoski, Managing Attorney.
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`_____
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`Before Lynch, Acting Deputy Chief Administrative Trademark Judge, Adlin, and
`Goodman, Administrative Trademark Judges.
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`Opinion by Goodman, Administrative Trademark Judge:
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`Fusion CBD Products LLC (“Applicant”) seeks registration on the Principal
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`Register of the mark
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` for “Non-medicated topical skin care
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`preparations, all of the aforementioned goods containing or derived from CBD derived
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`

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`Serial No. 88825450
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`from hemp with a delta-9 THC concentration of not more than 0.3% on a dry weight
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`basis” in International Class 3.1
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`The Trademark Examining Attorney has refused registration of Applicant’s mark
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`under Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051, 1127, on the ground that
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`the specimen does not show use of the applied-for mark for the identified goods.
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`Applicant filed a Request for Reconsideration concurrently with the notice of
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`appeal. After reconsideration was denied, the appeal resumed.
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`We reverse the refusal to register.
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`1 Application Serial No. 88825450 was filed on March 7, 2020, based upon Applicant’s claim
`of first use anywhere and use in commerce since at least as early as 2019 under Section 1(a)
`of the Trademark Act, 15 U.S.C. § 1051(a). Applicant provided the following description of
`the mark: “The mark consists of an image of a leaf in dark green and light green.” “The
`color(s) dark green and light green is/are claimed as a feature of the mark.”
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`Page references to the application record refer to the online database of the USPTO’s
`Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
`refer to the Board’s TTABVUE docket system. Applicant’s brief is at 6 TTABVUE and its
`reply brief is at 9 TTABVUE. The Examining Attorney’s brief is at 8 TTABVUE.
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`As part of an internal Board pilot citation program on broadening acceptable forms of legal
`citation in Board cases, this decision varies from the citation form recommended in the
`TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 101.03 (2023). This
`opinion cites decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court
`of Customs and Patent Appeals by the page(s) on which they appear in the Federal Reporter
`(e.g., F.2d, F.3d, or F.4th). For decisions of the Board and the Director, this opinion cites to
`precedential decisions in the WESTLAW (WL) legal database. As of the date of this opinion,
`the Board has not determined what database(s) it will use for recommended case citation in
`the future; the pilot is ongoing, using various citation forms. Until further notice,
`practitioners should continue to adhere to the citation form recommended in TBMP § 101.03.
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`Serial No. 88825450
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`I. Evidentiary Issues
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`The Examining Attorney has objected to printouts of third-party registrations
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`from the Trademark Electronic Search System (TESS)2 attached to Applicant’s brief
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`that were not previously made of record by Applicant during examination. Trademark
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`Rule 2.142(d), 37 C.F.R. § 2.142(d), provides that the record in an application should
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`be complete prior to the appeal. Exhibits attached to a brief and not made of record
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`during examination are untimely, and generally will not be considered. See In re Fitch
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`IBCA, Inc., Serial No. 75628232, 2002 WL 745593, at *1 n.2 (TTAB 2002). Therefore,
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`the Examining Attorney’s objection is sustained and the third-party registrations
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`submitted with Applicant’s brief are untimely and have not been considered.3
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`Applicant and the Examining Attorney have requested that we take judicial notice
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`of portions of the Nice Agreement4 with respect to International Classes 3 and 5. We
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`take judicial notice of the Nice Agreement in effect when the application was filed5
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`2 TESS was retired in November 2023 and replaced with a new Trademark Search system.
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`3 The Board also does not take judicial notice of registrations, and as indicated, the third-
`party registrations to which Applicant refers are not of record. In re Carolina Apparel, Serial
`No. 74658141, 1998 WL 785303, at *1 n.2 (TTAB 1998).
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`4 “International trademark classification, and the headings of the international trademark
`classes, are established by the Committee of Experts of the Nice Union and set forth in the
`International Classification of Goods and Services for the Purposes of the Registration of
`Marks (Nice Classification) published annually by the World Intellectual Property
`Organization (‘WIPO’) on its website.” TRADEMARK MANUAL OF EXAMINING PROCEDURE
`(TMEP) § 1401.02(a) (November 2023).
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`5 The applicable Nice Agreement is the version in effect when the application is filed.
`Trademark Rule 2.85(e)(1), 37 C.F.R. §2.85(e)(1). When a new edition/version of the Nice
`Agreement is issued, any changes apply only to applications filed on or after the effective
`date of the change except “[t]he examining attorney may offer the applicant the option of
`remaining in compliance with the edition/version of the Nice Agreement that was in effect on
`the application filing date or amending the application to comply with the requirements of
`the current edition.” TMEP § 1401.09; Trademark Rule 2.85(e)(1), 37 C.F.R. § 2.85(e)(1).
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`Serial No. 88825450
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`(Nice Agreement Eleventh Edition version 2020) including its general remarks, class
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`headings and explanatory notes to the entries in Classes 3 and 5.6 We take judicial
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`notice of entries in the US Trademark ID Manual (https://idm-tmng.uspto.gov/id-
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`master-list-public.html).7 We also take judicial notice of the dictionary definitions for
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`“skin care,” “anti-inflammatory” and “analgesic” provided with the Examining
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`Attorney’s appeal brief.8 Examining Attorney’s brief, 8 TTABVUE 8-28.
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`II. Arguments on Appeal
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`Applicant argues that the Examining Attorney erroneously rejected the specimen.
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`Applicant’s brief, 6 TTABVUE 3.
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`Proper classification of goods and services is a purely administrative matter within the
`Office’s sole discretion and is not a matter for appeal. In re Faucher Indus. Inc., Serial No.
`85202870, 2013 WL 5407312, at *3 (TTAB 2013) (quoting In re Tee-Pak, Inc., 1969 WL 8380,
`at *1 (TTAB 1969)).
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`6 The Board may take judicial notice of international conventions and treaties and
`international convention websites. See, e.g., In re Int’l Fruit Genetics, LLC, Serial No.
`88711192, 2022 WL 17222664, at *1 (TTAB 2022) (the Board took judicial notice of the text
`of the 1991 Act of the Convention and its Explanatory Notes, as well as the publicly available
`facts on the UPOV website at https://www.upov.int about the Convention and its
`administration); In re Int’l Watchman, Inc., Serial No. 87302907, 2021 WL 5755146, at *2 n.5
`(TTAB 2021) (the Board took judicial notice of the text of the North Atlantic Treaty).
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`7 See In re C.H. Hanson Co., Serial No. 77983232, 2015 WL 6121759, at *4 (TTAB 2015)
`(noting that “Hand tools, namely, wrenches’ are listed in Class 8 in the USPTO’s Trademark
`Acceptable Identification of Goods and Services (Trademark ID Manual).’”). The Board may
`take judicial notice of facts that are “capable of accurate and ready determination by resort
`to sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b)(2);
`TBMP § 704.12 (2023).
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`8 The Board may take judicial notice of dictionary definitions in print and online format. In
`re Red Bull GmbH, Serial No. 75788830, 2006 WL 936983, at *3 (TTAB 2006). See also In re
`Well Living Lab Inc., Serial No. 86440401 2017 WL 2876809, at *3 n.9 (TTAB 2017) (judicial
`notice taken of definition attached to an applicant’s appeal brief).
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`Serial No. 88825450
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`The Examining Attorney argues that Applicant has not provided the required
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`specimen showing the applied-for mark as actually used in commerce for the goods
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`identified in the application. 8 TTABVUE 5-6.
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`In reply, Applicant argues that the specimen reflects that its product is a Class 3
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`cream that contains emu oil. Applicant’s reply brief, 9 TTABVUE 3.
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`III. Analysis
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`Trademark Act Section 1(a)(1), 15 U.S.C. § 1051(a)(1), requires an applicant to
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`submit a specimen of its mark as used. See also Trademark Rule 2.56(a), 37 C.F.R.
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`§ 2.56(a) (requiring a specimen “showing the mark as used on or in connection with
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`the goods…”). A specimen in a trademark application has “[a]n important function …
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`manifestly, to enable the [US]PTO to verify the statements made in the application
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`regarding trademark use.” In re Bose Corp., 546 F.2d 893, 897 (CCPA 1976).
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`“To determine whether a mark is used in connection with the [goods] described in
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`the [application], a key consideration is the perception of the user.” In re JobDiva,
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`Inc., 843 F.3d 936, 941 (Fed. Cir. 2016). The specimens are viewed to determine
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`whether use of the mark “sufficiently creates in the minds of purchasers an
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`association between the mark” and the applied-for goods. Id. (quoting In re Ancor
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`Holdings LLC, Serial No. 76213721, 2006 WL 1258813, at *2 (TTAB 2006)). This “is
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`a factual determination that must be conducted on a case-by-case basis.” In re
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`JobDiva, Inc., 843 F.3d at 942.
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`Serial No. 88825450
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`Applicant’s specimen, which is a webpage display of the goods, shows that one of
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`the purposes of Applicant’s goods is moisturizing.9 October 19, 2020 Specimen. The
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`explanatory text indicates that Applicant’s good “revitalizes dry skin,” and the
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`product description indicates that the goods are a hemp-based CBD topical cream
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`that contains 10% emu oil. Id. The bulleted information about the product includes
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`the statement: “Moisturizes dry skin.” Id.
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`We find in this case that the specimen is sufficient to show use of the mark in
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`connection with “non-medicated topical skin care preparations.”
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`IV. Conclusion
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`The submitted specimen shows the applied-for mark is used in commerce in
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`connection with the specified Class 3 goods.
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`Decision: The refusal to register Applicant’s mark
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` is reversed.
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`9 For purposes of determining classification the Office assesses the primary purpose of the
`goods. For purposes of assessing the specimen to support use for the identified goods, we focus
`on whether the consumer would perceive the mark used for the identified goods when viewing
`the specimen.
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