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  • Implied consent to the trial of an unpleaded issue can be found only where the nonoffering party (1) raised no objection to the introduction of evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue.
    • The H.D. Lee Company, Inc. v. Maidenform, Inc., Opposition No. 91168309 (TTAB 2008)
      • "Implied consent to the trial of an unpleaded issue can be found only where the nonoffering party (1) raised no objection to the introduction of evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue." (Emphasis added). TBMP §507.03(b). See also Long John Silver's Inc. v. Lou Scharf Inc., 213 USPQ 263, 266 n.6 (TTAB 1982) (applicant's objection to the introduction of evidence regarding an unpleaded issue obviated the need to determine whether the issue had been tried by implied consent); Boise Cascade Corp. v. Cascade Coach Co., 168 USPQ 795, 797 (TTAB 1970) ("Generally speaking, there is an implied consent to contest an issue if there is no objection to the introduction of evidence on the unpleaded issue, as long as the adverse party was fairly informed that the evidence went to the unpleaded issue").
  • Case Finding: Because applicant may not rely on an unpleaded defense, the TTAB must determine whether applicant's attempt to apply tacking was tried by implied consent.
    • The H.D. Lee Company, Inc. v. Maidenform, Inc., Opposition No. 91168309 (TTAB 2008)
      • Because applicant may not rely on an unpleaded defense, we must determine whether applicant's attempt to tack its use of ONE FABULOUS FIT onto ONE FAB FIT was tried by implied consent.
  • Case Finding: Because opposer objected to the testimony and argument regarding applicant's use of the mark ONE FABULOUS FIT, applicant's attempt to tack the use of that mark onto ONE FAB FIT was not tried by implied consent. In view thereof, opposer's objection to applicant's testimony and evidence regarding applicant's use of the mark ONE FABULOUS FIT is sustained, applicant's answer is not deemed to be amended, and therefore the facts and arguments regarding applicant's use of the mark ONE FABULOUS FIT will be given no consideration.
    • The H.D. Lee Company, Inc. v. Maidenform, Inc., Opposition No. 91168309 (TTAB 2008)
      • Because opposer objected to the testimony and argument regarding applicant's use of the mark ONE FABULOUS FIT, applicant's attempt to tack the use of that mark onto ONE FAB FIT was not tried by implied consent. In view thereof, opposer's objection to applicant's testimony and evidence regarding applicant's use of the mark ONE FABULOUS FIT is sustained, applicant's answer is not deemed to be amended, and therefore the facts and arguments regarding applicant's use of the mark ONE FABULOUS FIT will be given no consideration.
  • Implied consent to the trial of an unpleaded issue can be found only where the nonoffering party (1) raised no objection to the introduction of the evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue.
    • Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (TTAB 2010)
      • Implied consent to the trial of an unpleaded issue can be found only where the nonoffering party (1) raised no objection to the introduction of the evidence on the issue, and (2) was fairly apprised that the evidence was being offered in support of the issue. Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134, 1138 (TTAB 2009); H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1720-1721 (TTAB 2008).
  • Case Finding: Llikelihood of confusion with respect to the mark and registration was not tried by either implied or express consent as a result of applicant's submissions at trial.
    • Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (TTAB 2010)
      • In view of the foregoing, we find that applicant was not aware that opposer intended to rely on its DEER-OFF mark to prove likelihood of confusion until opposer filed its rebuttal notice of reliance, . This was too late a point to show that the issue of likelihood of confusion with respect to this mark was tried. On the contrary, it would be unfair to permit opposer to rely on the DEER-OFF trademark and registration at this late date. See Sunnen Products Co. v. Sunex International Inc., 1 USPQ2d 1744, 1746 (TTAB 1987); The United States Shoe Corp. v. Kiddie Kobbler Ltd., 231 USPQ 815, 817 (TTAB 1986); Long John Silver's, Inc. v. Lou Scharf Inc., 213 USPQ 263, 266 (TTAB 1982). We conclude that likelihood of confusion with respect to this mark and registration was not tried by either implied or express consent as a result of applicant's submissions at trial.
  • The question of whether an issue was tried by consent is basically one of fairness. The non-moving party must be aware that the issue is being tried, and therefore there should be no doubt on this matter.
    • Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (TTAB 2010)
      • The question of whether an issue was tried by consent is basically one of fairness. The non-moving party must be aware that the issue is being tried, and therefore there should be no doubt on this matter. Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d at 1139.
  • Case Finding: Opposer's own actions prior to trial would not have given applicant any reason to believe that opposer intended to rely on its DEER-OFF mark.
    • Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (TTAB 2010)
      • Thus, opposer's own actions prior to trial would not have given applicant any reason to believe that opposer intended to rely on its DEER-OFF mark. Fossil Inc. v. Fossil Group, 49 USPQ2d 1451, 1455 (TTAB 1998).
Safer, Inc. v. OMS Investments, Inc., Opposition No. 91176445 (TTAB 2010) The H.D. Lee Company, Inc. v. Maidenform, Inc., Opposition No. 91168309 (TTAB 2008) Grand Total
Morgan Creek Productions Inc. v. Foria International Inc., 91 USPQ2d 1134 (TTAB 2009) 1
H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715 (TTAB 2008) 1
Fossil Inc. v. Fossil Group, 49 USPQ2d 1451 (TTAB 1998) 1
Sunnen Products Co. v. Sunex Int'l Inc., 1 USPQ2d 1744 (TTAB 1987) 1
The United States Shoe Corp. v. Kiddie Kobbler Ltd., 231 USPQ 815 (TTAB 1986) 1
Long John Silver's Inc. v. Lou Scharf Inc., 213 USPQ 263 (TTAB 1982) 2
Boise Cascade Corp. v. Cascade Coach Co., 168 USPQ 795 (TTAB 1970) 1
Grand Total 6 2 8
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