Case: 23-1142   Document: 38    Page: 1    Filed: 04/30/2024




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  JALMAR ARAUJO,
                      Appellant

                           v.

            FRAMBOISE HOLDINGS INC.,
                      Appellee
               ______________________

                       2023-1142
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in No.
 91255334.
                  ______________________

                 Decided: April 30, 2024
                 ______________________

    FRANCIS JOHN CIARAMELLA, Francis John Ciaramella,
 PLLC, Jupiter, FL, argued for appellant.

    STEVE BEAN, Legends Law Group, PLLC, Kaysville,
 UT, argued for appellee. Also represented by NICHOLAS
 WELLS.
                 ______________________

     Before LOURIE, LINN, and STOLL, Circuit Judges.
 LOURIE, Circuit Judge.
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 2                        ARAUJO v. FRAMBOISE HOLDINGS INC.




     Jalmar Araujo appeals from a decision of the United
 States Patent and Trademark Office Trademark Trial and
 Appeal Board (“the Board”) sustaining Framboise Hold-
 ings, Inc.’s (“Framboise”) opposition and refusing registra-
 tion of Araujo’s standard character mark #TODECACHO.
 Framboise Holdings Inc. v. Araujo, No. 91255334, 

 (T.T.A.B. Sept. 9, 2022) (“Decision”). For the fol-
 lowing reasons, we affirm.
                        BACKGROUND
     On December 3, 2019, Araujo filed U.S. Trademark Ap-
 plication Serial No. 88/712823 to register #TODECACHO
 as a standard character mark for hair combs. 

 at *1 &
 n.1. Framboise filed an opposition to the registration of
 Araujo’s mark asserting that it would likely cause confu-
 sion with its #TODECACHO design mark:



                 . Id. at *1.
       Framboise alleged ownership of the #TODECACHO
 design mark based on its prior use of the mark in the
 United States in connection with various hair products
 (i.e., shampoo, conditioner, hair mask treatments, hair
 cream, curly hair activator, hair jelly). Id. Framboise ar-
 gued that its prior use began as early as March 24, 2017.
 Id. at *3. It also pleaded ownership of a pending trademark
 application for the same mark that it filed on April 14,
 2020, which claimed the same date of first use. Id. at *1
 n.3.
     On October 18, 2021, the final day of the 30-day trial
 period in which Framboise could submit its case in chief to
 the Board, Framboise moved to extend its trial period by
 seven days, i.e., to October 25, 2021. See J.A. 560–61. Four
 days after filing that motion, Framboise served Araujo
 with the declaration of Adrian Extrakt, Director of Fram-
 boise. Id. at 561. Araujo opposed the motion and the late
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 ARAUJO v. FRAMBOISE HOLDINGS INC.                            3



 submission of the Extrakt declaration, id., but the Board
 granted the extension, finding that the few days delay was
 minimal and that Framboise had met the applicable good
 cause standard, id. at 561–62.
      Framboise then relied on the Extrakt declaration to
 support its March 24, 2017 first use date of the
 #TODECACHO design mark. The Board held that Fram-
 boise had met its burden to establish prior use by a prepon-
 derance of the evidence. Decision at *7–8. It found that
 the Extrakt declaration alone was sufficient to prove prior
 use because it was clear, convincing, and uncontradicted.
 Id. (noting that “[t]estimony, even of a single witness, can
 suffice to prove priority if that testimony is ‘sufficiently
 probative.’” (quoting Powermatics, Inc. v. Globe Roofing
 Prods. Co., Inc., 

 (CCPA 1965))). Having
 found an earlier priority date for Framboise, the Board
 found a likelihood of confusion between the two marks, sus-
 tained the opposition, and refused registration of Araujo’s
 mark. Id. at *16. Araujo timely appealed, and we have
 jurisdiction under 

(a)(4)(B).
                          DISCUSSION
     Araujo makes two arguments on appeal: (1) that the
 Board abused its discretion by granting Framboise’s mo-
 tion to extend its trial period and (2) that the Board’s find-
 ing that Framboise established prior use of the
 #TODECACHO design mark was not supported by sub-
 stantial evidence. We address each argument in turn.
      The Trademark Trial and Appeal Board Manual of Pro-
 cedure (“TBMP”) provides that the Board may grant mo-
 tions to extend time for good cause when the moving party
 files prior to the close of the original period. TBMP §§ 509–
 509.01 (providing that, pursuant to Fed. R. Civ. P. 6(b), “[i]f
 the motion is filed prior to the expiration of the period . . .
 the moving party need only show good cause for the re-
 quested extension”). “[T]he Board is liberal in granting ex-
 tensions of time before the period to act has elapsed, so long
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 4                         ARAUJO v. FRAMBOISE HOLDINGS INC.




 as the moving party has not been guilty of negligence or
 bad faith and the privilege of extensions is not abused.”
 Am. Vitamin Prods. Inc. v. Dowbrands Inc., 

, 1314 (T.T.A.B. 1992). The TBMP further provides
 that “[a] motion to extend must set forth with particularity
 the facts said to constitute good cause for the requested ex-
 tension.” TBMP § 509.01(a).
     We review the Board’s application of its own trial rules
 for an abuse of discretion. Ultratec, Inc. v. CaptionCall,
 LLC, 

 (Fed. Cir. 2017); see also TBMP
 § 906.01 (citing Royal Crown Co., Inc. v. Coca-Cola Co., 

, 963 (Fed. Cir. 2020)). The Board abuses its
 discretion if a decision: (1) is clearly unreasonable, arbi-
 trary, or fanciful; (2) is based on an erroneous conclusion of
 law; (3) rests on clearly erroneous fact findings; or (4) in-
 volves a record that contains no evidence on which the
 Board could rationally base its decision. Crash Dummy
 Movie, LLC v. Mattel, Inc., 

, 1390–91 (Fed.
 Cir. 2010).
     Araujo argues that Framboise’s motion failed to allege
 facts constituting good cause as to why the extension of
 time should be granted and that the Board therefore
 abused its discretion by granting said extension. We disa-
 gree.
     The Board identified and applied the correct good cause
 standard. J.A. 561 (“The motion for extension of Opposer’s
 trial period was filed prior to the close of the discovery pe-
 riod and therefore the applicable standard for the exten-
 sion is good cause.”). It then examined the record and
 reasonably found good cause to grant the extension based
 on its findings that “there [was] no evidence of record that
 [Framboise was] guilty of negligence or bad faith,” that it
 was Framboise’s first extension request, that Framboise
 submitted “the bulk of its evidence by the close of its testi-
 mony period,” and that the four day delay in submitting the
 Extrakt declaration “was minimal.” Id. at 562. Those
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 ARAUJO v. FRAMBOISE HOLDINGS INC.                          5



 factual findings are not clearly erroneous. The Board also
 expressly addressed Araujo’s argument. It found that alt-
 hough the motion did not provide the particular facts sur-
 rounding the need for an extension, the email
 correspondence between the opposing counsels—filed by
 Araujo in its response to Framboise’s motion—indicated
 that Framboise “was experiencing an unexpected delay.”
 Id. Because the Board applied the correct good cause
 standard and reasonably found good cause to grant the ex-
 tension based on the record, it did not abuse its discretion
 in granting the extension. See Ultratec, 

.
      We next address Araujo’s argument that Framboise
 failed to establish prior use of its #TODECACHO design
 mark. The party opposing registration of a similar mark
 may establish priority of its mark based on prior use.
 Herbko Int’l, Inc. v. Kappa Books, Inc., 

 (Fed. Cir. 2002); see also 

(d) (providing
 that a mark may not be registered if it is likely to cause
 confusion with “a mark . . . previously used in the United
 States by another and not abandoned”). The opposer has
 the burden to prove its prior use by a preponderance of the
 evidence. See Eastman Kodak Co. v. Bell & Howell Doc.
 Mgmt. Prods. Co., 

 (Fed. Cir. 1993)
 (“[T]he challenger’s burden of proof in both opposition and
 cancellation proceedings is a preponderance of the evi-
 dence.”).
     The Board’s determination of priority is a question of
 fact reviewed for substantial evidence. Lyons v. Am. Coll.
 of Veterinary Sports Med. & Rehab., 

 (Fed. Cir. 2017). “Substantial evidence is such relevant ev-
 idence as a reasonable mind might accept as adequate to
 support a conclusion.” 

 (internal quotation
 marks and citation omitted).
     The Board determined that Araujo was entitled to a
 priority date of December 3, 2019, the filing date of his ap-
 plication, and that Framboise was entitled to the earlier
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 6                         ARAUJO v. FRAMBOISE HOLDINGS INC.




 priority date of March 24, 2017, based on its use of the de-
 sign mark in connection with various hair products. Deci-
 sion at *4–8. Araujo argues that Framboise’s priority date
 was not supported by substantial evidence because the
 Board relied on the testimony of a single interested wit-
 ness, Extrakt, and that his declaration was merely naked
 general assertions of prior use. We disagree.
      The Board’s determination that Framboise established
 its prior use of the #TODECACHO design mark was sup-
 ported by substantial evidence. The Board found the Ex-
 trakt declaration alone to be sufficiently “clear, convincing,
 and uncontradicted” to establish Framboise priority date.
 Id. at *8. Contrary to Araujo’s assertion, the declaration
 provides more than general assertions. It states that it is
 based on Extrakt’s “personal knowledge and assessment of
 the records maintained by Framboise.” Extrakt Decl. ¶ 2;
 J.A. 347. It provides a list of products and a specific date
 on which Framboise began using the #TODECACHO de-
 sign mark in connection with those products. Extrakt Decl.
 ¶ 4; J.A. 348. It also provides representative examples of
 the mark as displayed on products in stores in the United
 States. Extrakt Decl. ¶ 4, Exhibit A; J.A. 348, 351–54.
 Araujo did not offer any evidence to dispute Framboise’s
 prior use and declined to depose Extrakt during the oppo-
 sition proceeding despite the opportunity to do so. Oral
 Arg. at 8:45–9:45, available at https://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=23-1142_0308202
 4.mp3 (confirming that Araujo had the opportunity to de-
 pose Extrakt during their trial period but that it was “our
 strategy . . . to defend against this by introducing our own
 documents” rather than depose Extrakt). When presented
 with the evidence provided in the Extrakt declaration and
 nothing to contradict it, a reasonable mind could conclude
 that Framboise had established its priority date by a pre-
 ponderance of the evidence. The Board’s decision finding
 that Framboise was entitled to a priority date of March 24,
 2017, was therefore supported by substantial evidence. See
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 ARAUJO v. FRAMBOISE HOLDINGS INC.                          7



 Powermatics, 

 (“[O]ral testimony, if suffi-
 ciently probative, is normally satisfactory to establish pri-
 ority of use in a trademark proceeding . . . .”).
                        CONCLUSION
     We have considered Araujo’s remaining arguments and
 find them unpersuasive. For the foregoing reasons, we af-
 firm.
                        AFFIRMED