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Hylete LLC v. Hybrid Athletics, LLC

United States Court of Appeals, Federal Circuit

August 1, 2019

HYLETE LLC, Appellant
v.
HYBRID ATHLETICS, LLC, Appellee

          Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 91213057.

          Pattric Rawlins, Procopio, Cory, Hargreaves & Sa-vitch LLP, San Diego, CA, argued for appellant. Also represented by Dave Deonarine.

          Michael Joseph Kosma, Whitmyer IP Group LLC, Stamford, CT, argued for appellee. Also represented by Benjamin N. Luehrs.

          Before Moore, Reyna, and Wallach, Circuit Judges.

          REYNA, CIRCUIT JUDGE.

         Hylete LLC appeals from a decision of the Trademark Trial and Appeal Board sustaining Hybrid Athletics, LLC's opposition to Hylete's trademark registration application. We conclude that Hylete waived the arguments on which its appeal relies because it raises new issues that could have been raised and were not considered below. We affirm.

         Background

         In January 2013, Hylete applied to register a design mark for a stylized letter "H" in International Class 25 for "[a]thletic apparel, namely, shirts, pants, shorts, jackets, footwear, hats and caps." J.A. 76-92. After finding no registrations that would bar registration of the Hylete mark, the Examining Attorney approved the application, and the Trademark Office published the Hylete mark for opposition in the Trademark Official Gazette on June 18, 2013.

         On October 16, 2013, Hybrid Athletics, LLC filed a Notice of Opposition on the grounds of likelihood of confusion with its mark under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d). Hybrid's mark is also a stylized letter "H." The two marks are shown in the chart below:

         (Image Omitted)

         Hybrid's Notice of Opposition pleaded ownership in Application No. 86/000, 809 ("the '809 application") for a design mark of its stylized "H" used "in connection with conducting fitness classes; health club services, namely, providing instruction and equipment in the field of physical exercise; personal fitness training services and consultancy; physical fitness instruction" in International Class 41. J.A. 3, 98-99. Hybrid also pleaded common law rights from its use of the same mark on "athletic apparel, including shirts, hats, shorts and socks" since August 1, 2008. Id.

         During opposition proceedings before the Trademark Trial and Appeal Board ("Board"), Hybrid submitted as an exhibit several images depicting the use of its mark on athletic apparel, including shirts, shorts, and jackets. The images showed Hybrid's stylized "H" design appearing on the apparel above the phrase "Hybrid Athletics" and several dots:

         (Image ...


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