Defendant has obtained cancellation of Plaintiff’s “Dibcoin Mark (Reg. No. 5396033) with weak documentation and testimony alleging that Plaintiff was not first to use the mark in commerce. Defendant alleged that Plaintiff created the Dibcoin mark under contract with Defendant and that Plaintiff failed to explain how he used the mark in commerce prior to Defendant’s alleged use of the mark (TTAB agreed). Additional evidence was later obtained and submitted into the record, but it was deemed late and not considered. That evidence makes it now abundantly apparent that Plaintiff was the first to use the Dibcoin Mark in commerce and is therefore the owner of the Dibcoin Mark. If this Appeal is not granted and Plaintiff does not obtain relief from the Decision, it will never be able to offer its evidence or litigate the underlying grant of the cancellation petition on the merits.
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