Game Plan, Inc. v. Uninterrupted Ip, LLC

United States Court of Appeals
for the Federal Circuit
______________________
GAME PLAN, INC.,
Appellant
v.
UNINTERRUPTED IP, LLC,
Appellee
______________________
2024-1407
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
91244990.
______________________
Decided: December 10, 2025
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RYAN L AURENCE J ONES , Ryan L. Jones Law, LLC,
Washington, DC, argued for appellant. Also represented
by L OUIS S. MASTRIANI, Buchanan Ingersoll & Rooney PC,
Washington, DC.
HOWARD SHIRE, Troutman Pepper Hamilton Sanders
LLP, New York, NY, argued for appellee. Also represented
by SEAN MCCONNELL , Philadelphia, PA.
______________________
Before P ROST , REYNA, and CUNNINGHAM , Circuit Judges.
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 2
REYNA, Circuit Judge.
Game Plan, Inc. appeals a final decision of the Trade-
mark Trial and Appeal Board cancelling its registration for
its stylized mark—I AM MORE THAN AN ATHLETE. GP
GAME PLAN—and dismissing Game Plan’s opposition to
Uninterrupted IP, LLC’s six intent-to-use applications for
marks containing I AM MORE THAN AN ATHLETE and
MORE THAN AN ATHLETE. For the reasons explained
below, we affirm.
BACKGROUND
I.
Game Plan, Inc. (“Game Plan”) is a non-profit organi-
zation that aims to assist student-athletes in underserved
communities. On December 28, 2016, Game Plan applied
to register the following mark with the U.S. Patent and
Trademark Office (“PTO”):
See Registration No. 5,487,497 (“Game Plan’s Mark”). The
PTO registered the mark on June 5, 2018. Game Plan’s
mark covers “[c]haritable fundraising services by means of
selling t-shirts to raise funds for educational and entertain-
ment programs.” J.A. 69 (cleaned up).
Uninterrupted IP, LLC (“UNIP”) is a media company
that provides a platform for athletes to express their
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 3
identities beyond sports through storytelling, digital con-
tent, and apparel. In March 2018, UNIP filed six intent-
to-use applications for marks incorporating the phrases I
AM MORE THAN AN ATHLETE and MORE THAN AN
ATHLETE in standard and stylized fonts, as shown below
(“UNIP’s proposed marks”).1
UNIP’s proposed marks cover clothing and entertainment
services such as “a website featuring non-downloadable
videos, podcasts, films and social media posts in the field of
sports.” J.A. 1–2.
II.
On November 28, 2018, Game Plan initiated an oppo-
sition proceeding with the PTO Trademark Trial and Ap-
peal Board (“Board”) to oppose registration of UNIP’s
proposed marks. J.A. 66–69. Game Plan asserted that
there was a likelihood of confusion, under Section 2(d) of
the Lanham Act, 15 U.S.C. § 1052(d), between UNIP’s pro-
posed marks and its registered mark and that it had prior-
ity over UNIP’s proposed marks. Game Plan also asserted
1 UNIP’s intent to use applications correspond to
U.S. Trademark Application Serial Nos. 87/828,960;
87/828,964; 87/828,965; and 87/828,966 (filed Mar. 10,
2018); 87/836,363 and 87/836,358 (filed Mar. 15, 2018)
(“UNIP’s applications”).
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 4
common law rights as a basis for its Section 2(d) claim
against UNIP’s applications.
UNIP answered Game Plan’s Amended Notice of Oppo-
sition on April 8, 2019. In its answer, UNIP denied any
likelihood of confusion between the marks and alterna-
tively counterclaimed to cancel Game Plan’s registration
under Section 2(d) of the Lanham Act. UNIP asserted that
cancellation was proper because, if there was a likelihood
of confusion, it had priority over Game Plan’s mark based
on its common law rights in the mark MORE THAN AN
ATHLETE. However, UNIP acquired common law rights
to the mark MORE THAN AN ATHLETE through an asset
purchase agreement (the “2019 Assignment”) that was ex-
ecuted on February 22, 2019, after Game Plan filed its No-
tice of Opposition. Relevant to this appeal, the 2019
Assignment transferred to UNIP both the mark MORE
THAN AN ATHLETE and “all of the goodwill of the busi-
ness related to” the mark. J.A. 152. UNIP purchased the
common law rights from DeAndra Alex and her company,
More Than an Athlete, Inc. (“MTAA”), which had used the
mark MORE THAN AN ATHLETE since at least 2012 in
connection with clothing and community events.
III.
The case proceeded to trial before the Board, which is-
sued findings and conclusions on the parties’ claims. See
Game Plan, Inc. v. Uninterrupted IP, LLC, No. 91244990,
2023 WL 8664497 (T.T.A.B. Dec. 14, 2023) (“Final Deci-
sion”). The Board’s Final Decision addressed both eviden-
tiary issues and the substantive merits of the parties’
claims. First, the Board dismissed Game Plan’s opposition
because Game Plan had submitted no evidence at trial.
Given the lack of evidence, the Board concluded that Game
Plan could not maintain its Section 2(d) claims based on its
common law rights alone, noting “[i]t is impossible to pre-
vail based on a claim of common law rights in a Board
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 5
proceeding without evidence or an admission in the record
establishing prior use of the mark.” Final Decision at *3.
The Board next assessed UNIP’s Section 2(d) counter-
claim, focusing entirely on the issue of priority because
Game Plan conceded likelihood of confusion. The Board
found that UNIP acquired valid and enforceable common
law rights in the mark MORE THAN AN ATHLETE from
Ms. Alex and MTAA.
The Board rejected Game Plan’s arguments that the
assignment of MORE THAN AN ATHLETE was invalid be-
cause the rights were assigned during the litigation. Game
Plan argued this was improper “because UNIP made the
purchase after the start of this action, in order to litigate
from a changed position.” Final Decision at *7. The Board
cited persuasive authority for the proposition that motives
for assignment during litigation are not dispositive. Id.
(citing Dial-A-Mattress Operating Corp. v. Mattress Mad-
ness, Inc., 841 F. Supp. 1339, 1348 n.10 (E.D.N.Y. 1994)
(“However, the motivation for a sale is irrelevant and sen-
ior user status may be properly achieved by assignment in
anticipation or in the midst of litigation.”)). The Board also
rejected Game Plan’s argument that UNIP’s common law
rights were unenforceable because it did not intend to offer
certain services associated with the goodwill of the mark
(e.g., publicity or charitable services). The Board explained
that although UNIP may not have acquired enforceable
rights in services for which it had no continuing use, the
assignment of common law rights in connection with cloth-
ing was valid and sufficient to sustain its counterclaim.
The Board accordingly held that UNIP had priority over
Game Plan and canceled Game Plan’s registration.
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 6
Game Plan timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(4)(B).
STANDARD OF REVIEW
We review the Board’s legal determinations de novo
and its factual findings for substantial evidence. Princeton
Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 964
(Fed. Cir. 2015). Substantial evidence means “‘such rele-
vant evidence as a reasonable mind would accept as ade-
quate’ to support a conclusion.” Id. (quoting In re Pacer
Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003)). The Court
reviews Board evidentiary rulings for abuse of discretion.
Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1370 (Fed. Cir.
2018). We will reverse the Board’s evidentiary ruling only
if the ruling was: (1) clearly unreasonable, arbitrary, or
fanciful; (2) based on an erroneous conclusion of law;
(3) premised on clearly erroneous findings of fact; or (4) the
record contains no evidence on which the Board could ra-
tionally base its decision. Id.
D ISCUSSION
Game Plan, Inc. raises two issues on appeal. First, it
argues that the Board erred in determining that UNIP had
priority over Game Plan’s mark based on the 2019 Assign-
ment of common law trademark rights. Appellant
Br. 16–22. Second, it argues that the Board failed to re-
view evidence supporting its assertion that the 2019 As-
signment is invalid. Appellant Br. 22–27. We address each
argument in turn.
I.
Game Plan argues that the Board erred in determining
that UNIP had priority over Game Plan’s mark because the
2019 Assignment violates 15 U.S.C. § 1060(a)(1) and 37
C.F.R. § 2.133(a). Appellant Br. 1, 17. We disagree.
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 7
A.
Game Plan asserts that the 2019 Assignment violates
the trademark antitrafficking rule under 15 U.S.C.
§ 1060(a)(1) for two reasons. First, Game Plan contends
that the 2019 Assignment is an assignment in gross. Ap-
pellant Br. 13. An assignment in gross is a sale of a trade
name or mark divorced from its goodwill. See Visa, U.S.A.,
Inc. v. Birmingham Tr. Nat’l Bank, 696 F.2d 1371, 1375
(Fed. Cir. 1982). Game Plan argues that such assignments
violate § 1060(a)(1), which states “[a] registered mark or a
mark for which an application to register has been filed
shall be assignable with the good will of the business in
which the mark is used.” 15 U.S.C. § 1060(a)(1). Indeed,
we have similarly noted that “a trademark cannot be val-
idly assigned unless accompanied by its goodwill garnered
in the marketplace.” Gaia Techs., Inc. v. Reconversion
Techs., Inc., 93 F.3d 774, 777 (Fed. Cir. 1996), amended on
reh’g in part, 104 F.3d 1296 (Fed. Cir. 1996).
However, the Board’s conclusion that the 2019 Assign-
ment is not an assignment in gross and satisfies the re-
quirement to transfer goodwill under § 1060(a)(1) is
supported by substantial evidence and is otherwise not
contrary to the law. First, the 2019 Assignment expressly
defined the purchased assets as trademarks, among other
intellectual property, “together with the goodwill of the
business associated therewith.” J.A. 263; see also J.A. 153.
This evidence supports the Board’s determination that the
mark MORE THAN AN ATHLETE was not divorced from
its goodwill when assigned. The Board also determined
that the 2019 Assignment was not in gross because UNIP’s
use of the mark was substantially similar to Ms. Alex’s use,
and UNIP and MTAA shared a common purpose and audi-
ence. Final Decision at *8. This finding was supported by
evidence that both companies used the mark in connection
with the sale of t-shirts and similar clothing as “a part of a
larger effort that relates to the well-being of athletes.” Id.;
see also J.A. 129–33, 256–58. The Board further noted that
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 8
UNIP retained Ms. Alex as a consultant. Final Decision
at *7. The Board found that this evidence demonstrated
continuity of goodwill associated with the acquired mark.
Id. at *8. We agree that the 2019 Assignment does not con-
stitute an assignment in gross.
Second, Game Plan asserts that § 1060(a)(1) bars the
2019 Assignment. Appellant Br. 17–18. This argument
lacks merit because it is based on a fundamental misun-
derstanding of 15 U.S.C. § 1060(a)(1). Section 1060(a)(1)
provides that:
[N]o application to register a mark under sec-
tion 1051(b) of this title shall be assignable prior to
the filing of an amendment under section 1051(c) of
this title to bring the application into conformity
with section 1051(a) of this title or the filing of the
verified statement of use under section 1051(d) of
this title, except for an assignment to a successor
to the business of the applicant, or portion thereof,
to which the mark pertains, if that business is on-
going and existing.
15 U.S.C. § 1060(a)(1). Section 1060 therefore restricts the
assignment of intent-to-use applications before an amend-
ment to allege use or a verified statement of use is filed.
Here, UNIP did not assign its pending intent-to-use ap-
plications. Rather, it received an assignment of preexisting
common law rights to an already-used mark. J.A. 263. Sec-
tion 1060(a)(1) does not prohibit the assignment of such
rights. Thus, UNIP did not violate § 1060(a)(1) when it
purchased common law rights to the mark MORE THAN
AN ATHLETE.
B.
Second, Game Plan argues that the timing of the 2019
Assignment violated 37 C.F.R. § 2.133(a). Appellant
Br. 17. We disagree. Section 2.133(a) governs amend-
ments to trademark applications or registrations during
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 9
opposition and cancellation proceedings. 37 C.F.R.
§ 2.133(a). It provides that:
An application subject to an opposition may not be
amended in substance nor may a registration sub-
ject to a cancellation be amended or disclaimed in
part, except with the consent of the other party or
parties and the approval of the Trademark Trial
and Appeal Board, or upon motion granted by the
Board.
Id. Game Plan asserts that UNIP’s 2019 Assignment
should be treated as a substantive amendment to its six
intent-to-use applications and therefore prohibited because
the assignment occurred after Game Plan filed its Notice of
Opposition. Appellant Br. 12. However, Game Plan cites
no authority supporting its claim that the acquisition of
common law trademark rights constitutes an
“amend[ment] in substance” within the meaning of
§ 2.133(a). Id.
In any event, we need not resolve this question because
Game Plan’s argument fails for a more fundamental rea-
son. That is, Game Plan’s argument rests on the premise
that the Board based its priority determination on UNIP’s
pending intent-to-use applications. It did not. Rather, the
Board sustained UNIP’s priority claim based on its owner-
ship of common law rights in the mark MORE THAN AN
ATHLETE, which independently predate Game Plan’s fil-
ing date. Section 2.133(a) governs amendments to pending
applications or registrations subject to cancellation; it does
not govern the independent transfer or acquisition of com-
mon law rights to a mark. Thus, UNIP’s common law
rights would still establish priority over Game Plan’s reg-
istration independent of any constraints imposed by
§ 2.133(a).
In sum, because the Board’s decision rested on validly
assigned common law rights and not on UNIP’s six intent-
to-use applications, any procedural limitations on
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 10
amending those applications are irrelevant to the Board’s
priority analysis.
II.
Finally, Game Plan argues that the Board erred by fail-
ing to objectively review certain evidence Game Plan sub-
mitted to support its claims that UNIP’s actions
constituted an assignment in gross. Appellant Br. 22–29.
We disagree.
Under the regulations governing trial testimony, only
materials properly made of record may be considered. See,
e.g., 37 C.F.R. §§ 2.122, 2.123. Accordingly, parties to op-
position and cancellation proceedings before the Board
must comply with specific procedural requirements for in-
troducing evidence during trial. Parties typically submit
evidence during trial by notices of reliance under § 2.122(g)
or by witness testimony under § 2.123. Section 2.122 iden-
tifies certain materials that are automatically included in
the record, including “[t]he file of each application or regis-
tration specified in a notice of interference, of each applica-
tion or registration specified in the notice of a concurrent
use registration proceeding, of the application against
which a notice of opposition is filed, or of each registration
against which a petition or counterclaim for cancellation is
filed.” 37 C.F.R. § 2.122(b)(1). However, documents at-
tached to pleadings or motions are not evidence unless
properly introduced during trial. See Cai, 901 F.3d
at 1370–71 (affirming Board’s exclusion of evidence not
submitted during trial).
Further, under 37 C.F.R. § 2.132(a),
[i]f the time for taking testimony by any party in
the position of plaintiff has expired and it is clear
to the Board from the proceeding record that such
party has not taken testimony or offered any other
evidence, the Board may grant judgment for the de-
fendant.
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 11
37 C.F.R. § 2.132(a). Thus, if an opposer fails to introduce
evidence during the trial period, the applicant may move to
dismiss the opposition for failure of proof. Id.
Here, the Board found that Game Plan failed to
properly introduce any evidence during its trial period, de-
spite being clearly advised of the procedural requirements
to do so. Final Decision at *1–3. Game Plan does not dis-
pute this fact. Appellant Br. 13. Rather, as the Board
noted, Game Plan attempted to rely on documents previ-
ously submitted with its motion for summary judgment.
Final Decision at *1. Game Plan’s attempt to rely on ma-
terials filed with its summary judgment motion and not re-
introduced during the testimony period is improper.
Accordingly, the Board did not abuse its discretion by de-
clining to consider evidence that Game Plan had not en-
tered into the trial record.2 In sum, Game Plan was
advised of the proper procedures for submitting evidence
but failed to follow them, and the Board did not err by ex-
cluding evidence not submitted during the designated trial
period.
2 Game Plan also argues that we can rely on judicial
notice to “put into perspective” the timeline of events and
all evidence to understand that UNIP’s actions amounted
to an assignment in gross. Appellant Br. 27–29. We de-
cline to take this approach. Game Plan’s attempt to rem-
edy this deficiency by having this court take judicial notice
of the entire underlying record is improper. Indeed, the
underlying record does not satisfy the requirement of being
“facts of universal notoriety, which need not be proved,” nor
is the record “generally known within [this court’s] juris-
diction[].” B.V.D. Licensing Corp. v. Body Action Design,
Inc., 846 F.2d 727, 728 (Fed. Cir. 1988).
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GAME PLAN, INC. v. UNINTERRUPTED IP , LLC 12
CONCLUSION
We have considered Game Plan’s remaining arguments
and find them unpersuasive. For the reasons provided, we
affirm the Board’s decision canceling Game Plan’s registra-
tion for the mark I AM MORE THAN AN ATHLETE. GP
GAME PLAN and dismissing its opposition to UNIP’s in-
tent-to-use applications.
AFFIRMED
COSTS
Costs against Game Plan.
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