United States Court of Appeals for the Federal Circuit ______________________

JALMAR ARAUJO, Appellant

v.

FRAMBOISE HOLDINGS INC., Appellee ______________________

2023-1142 ______________________

Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 91255334. ______________________

Decided: April 30, 2024 ______________________

FRANCIS JOHN CIARAMELLA, Francis John Ciaramella, PLLC, Jupiter, FL, argued for appellant.

STEVE BEAN, Legends Law Group, PLLC, Kaysville, UT, argued for appellee. Also represented by NICHOLAS WELLS. ______________________

Before LOURIE, LINN, and STOLL, Circuit Judges. LOURIE, Circuit Judge. Case: 23-1142 Document: 38 Page: 2 Filed: 04/30/2024

2 ARAUJO v. FRAMBOISE HOLDINGS INC.

Jalmar Araujo appeals from a decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (“the Board”) sustaining Framboise Hold- ings, Inc.’s (“Framboise”) opposition and refusing registra- tion of Araujo’s standard character mark #TODECACHO. Framboise Holdings Inc. v. Araujo, No. 91255334, 2022 WL 4131834 (T.T.A.B. Sept. 9, 2022) (“Decision”). For the fol- lowing reasons, we affirm. BACKGROUND On December 3, 2019, Araujo filed U.S. Trademark Ap- plication Serial No. 88/712823 to register #TODECACHO as a standard character mark for hair combs. Id. at *1 & n.1. Framboise filed an opposition to the registration of Araujo’s mark asserting that it would likely cause confu- sion with its #TODECACHO design mark:

. Id. at *1. Framboise alleged ownership of the #TODECACHO design mark based on its prior use of the mark in the United States in connection with various hair products (i.e., shampoo, conditioner, hair mask treatments, hair cream, curly hair activator, hair jelly). Id. Framboise ar- gued that its prior use began as early as March 24, 2017. Id. at *3. It also pleaded ownership of a pending trademark application for the same mark that it filed on April 14, 2020, which claimed the same date of first use. Id. at *1 n.3. On October 18, 2021, the final day of the 30-day trial period in which Framboise could submit its case in chief to the Board, Framboise moved to extend its trial period by seven days, i.e., to October 25, 2021. See J.A. 560–61. Four days after filing that motion, Framboise served Araujo with the declaration of Adrian Extrakt, Director of Fram- boise. Id. at 561. Araujo opposed the motion and the late Case: 23-1142 Document: 38 Page: 3 Filed: 04/30/2024

ARAUJO v. FRAMBOISE HOLDINGS INC. 3

submission of the Extrakt declaration, id., but the Board granted the extension, finding that the few days delay was minimal and that Framboise had met the applicable good cause standard, id. at 561–62. Framboise then relied on the Extrakt declaration to support its March 24, 2017 first use date of the #TODECACHO design mark. The Board held that Fram- boise had met its burden to establish prior use by a prepon- derance of the evidence. Decision at *7–8. It found that the Extrakt declaration alone was sufficient to prove prior use because it was clear, convincing, and uncontradicted. Id. (noting that “[t]estimony, even of a single witness, can suffice to prove priority if that testimony is ‘sufficiently probative.’” (quoting Powermatics, Inc. v. Globe Roofing Prods. Co., Inc., 341 F.2d 127, 130 (CCPA 1965))). Having found an earlier priority date for Framboise, the Board found a likelihood of confusion between the two marks, sus- tained the opposition, and refused registration of Araujo’s ma