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
Michael Joseph Kosma, Whitmyer IP Group LLC, Stamford, CT,
argued for appellee. Also represented by Benjamin N. Luehrs.
Moore, Reyna, and Wallach, Circuit Judges.
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.
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,
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:
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.
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: