512    Motion to Join or Substitute

512.01    Assignment of Mark

When there has been an assignment of a mark that is the subject of, or relied upon in, an inter partes proceeding before the Board, the assignee may be joined or substituted, as may be appropriate, upon motion granted by the Board, or upon the Board’s own initiative. [ Note 1.]

When a mark that is the subject of a Federal application or registration has been assigned, together with the application or registration, in accordance with Trademark Act § 10, 15 U.S.C. § 1060, any action with respect to the application or registration that may or must be taken by the applicant or registrant may be taken by the assignee (acting itself, or through its attorney or other authorized representative), provided that the assignment has been recorded with the USPTO or that proof of the assignment has been submitted in the Board proceeding record. [ Note 2.]

Please Note: Trademark Act § 10, 15 U.S.C. § 1060, and part 3 of 37 C.F.R. are not applicable to Trademark Act § 66(a), 15 U.S.C. § 1141f(a), applications and registrations. [ Note 3.] Except in limited circumstances, [ Note 4.] requests to record assignments of § 66(a) applications and registrations must be filed directly with the International Bureau. [ Note 5.] The International Bureau will notify the USPTO of any changes in ownership recorded in the International Register. The USPTO will record only those assignments, or other documents of title, that have been recorded with the International Bureau. [ Note 6.]

If the mark in an application or registration that is the subject matter of an inter partes proceeding before the Board is assigned, together with the application or registration, the assignee may be joined as a party (as a party defendant, in the case of an opposition or cancellation proceeding; or as a junior or senior party, as the case may be, in an interference or concurrent use proceeding) upon the filing with the Board of a copy of the assignment. When the assignment is recorded in the Assignment Recordation Branch of the USPTO [ Note 7.], the assignee may be substituted as a party if the assignment occurred prior to the commencement of the proceeding [ Note 8.], the assignor is no longer in existence, the plaintiff raises no objections to substitution, or the discovery and testimony periods have closed; otherwise, the assignee will be joined, rather than substituted, to facilitate discovery. [ Note 9.]

If a mark pleaded by a plaintiff is assigned and a copy of the assignment is filed with the Board, the assignee ordinarily will be substituted for the originally named party if the assignment occurred prior to the commencement of the proceeding, if the discovery and testimony periods have closed, if the assignor is no longer in existence, or if the defendant raises no objection to substitution; otherwise, the assignee will be joined, rather than substituted, to facilitate the taking of discovery and the introduction of evidence. [ Note 10.] See TBMP § 303.05(b) (Opposition Filed by Privy). The assignment does not have to be recorded with respect to a plaintiff’s pleaded application or registration before substitution or joinder (whichever is appropriate) is made. However, recordation in the Assignment Recordation Branch of the USPTO is advisable because it will aid the assignee in its effort to prove ownership of the application or registration at trial. [ Note 11.]

If the mark of an excepted common law user (that is not the owner of an involved application or registration) in a concurrent use proceeding is assigned, the assignee will be joined or substituted as party defendant upon notification to the Board of the assignment. [ Note 12.]

Alternatively, if there has been an assignment of a mark that is the subject of, or is relied upon in, a proceeding before the Board, and the Board does not order that the assignee be joined or substituted in the proceeding, the proceeding may be continued in the name of the assignor. [ Note 13.]

Further, the fact that a third party related to the plaintiff, such as a parent or licensor of the plaintiff, may also have an interest in a mark relied on by the plaintiff does not mean that the third party must be joined as a party plaintiff. [ Note 14.]

A joint applicant may assign an intent-to-use application for registration of a mark to a second joint applicant without violating Trademark Act § 10(a)(1), 15 U.S.C. § 1060(a)(1). [ Note 15.]

NOTES:

 1.   See, e.g., NSM Resources Corp. v. Microsoft Corp., 113 USPQ2d 1029, 1031 (TTAB 2014) (finding joinder rather than substitution appropriate where assignment of pleaded mark was executed one year after proceeding commenced and nothing in the record indicated petitioner or business connected with mark no longer in existence); Life Zone Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1955 n.1 (TTAB 2008) (Board will not add or substitute an opposition applicant without motion and submission of either proof of name change assignment or proof of recordation of same with the USPTO). See also Interstate Brands Corp. v. McKee Foods Corp., 53 USPQ2d 1910, 1910 n.1 (TTAB 2000) (assignee joined at final decision).

 2.   See 37 C.F.R. § 3.71; 37 C.F.R. § 3.73(b).

 3.   See 37 C.F.R. § 7.22  et seq. for information on recording changes to Trademark Act § 66(a),15 U.S.C. § 1141f(a), applications and registrations.

 4.   See 37 C.F.R. § 7.23; 37 C.F.R. § 7.24.

 5.   See Trademark Act § 72, 15 U.S.C. § 1141l; 37 C.F.R. § 7.22. See also TMEP § 1904.06 (Assignment of Extension of Protection to the United States).

 6.   See TMEP § 501.07 (Assignment of Extension of Protection of International Registration to the United States); TMEP § 1904.06 (Assignment of Extension of Protection to the United States).

 7.   With respect to Trademark Act § 66(a), 15 U.S.C. § 1141f (a), applications and registrations, the USPTO will record only those assignments, or other documents of title, that have been recorded in the International Register. See TMEP § 501.07; TMEP § 1904.06

 8.   Cf. Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1434 n.1 (TTAB 2007) (opposition captioned in name of new opposer where assignment of pleaded registrations recorded prior to filing of notice of opposition).

 9.   See, e.g., 37 C.F.R. § 2.113(c)(1), 37 C.F.R. § 2.113(d), 37 C.F.R. § 3.71(d), and 37 C.F.R. § 3.73(b); Fed. R. Civ. P. 17 and 25; NSM Resources Corp. v. Microsoft Corp., 113 USPQ2d 1029, 1031 (TTAB 2014) (finding joinder rather than substitution appropriate where assignment of pleaded mark was executed one year after proceeding commenced and nothing in the record indicated petitioner or business connected with mark no longer in existence); Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1434 n.2 (TTAB 2007) (applicant’s motion to join another defendant granted where assignment of application occurred after commencement of proceeding); Pro-Cuts v. Schilz-Price Enterprises Inc., 27 USPQ2d 1224, 1229 (TTAB 1993) (joinder after assignment); Western Worldwide Enterprises Group Inc. v. Qinqdao Brewery, 17 USPQ2d 1137, 1138 n.4 (TTAB 1990) (assignee joined after filing copy of an assignment which occurred subsequent to commencement of proceeding); Tonka Corp. v. Tonka Tools, Inc., 229 USPQ 857, 857 n.1 (TTAB 1986) (assignee joined where papers filed by parties indicated registration had been assigned). See also Huffy Corp. v. Geoffrey Inc., 18 USPQ2d 1240, 1242 (Comm’r 1990) (joinder); S & L Acquisition Co. v. Helene Arpels Inc., 9 USPQ2d 1221, 1222 n.2 (TTAB 1987) (joinder after assignment); Mason Engineering & Design Corp. v. Mateson Chemical Corp., 225 USPQ 956, 957 nn.2-3 (TTAB 1985) (substitution due to reincorporation and merger); E.E. Dickinson Co. v. T.N. Dickinson Co., 221 USPQ 713, 715 n.1 (TTAB 1984) (joinder of successor-in-interest); Hamilton Burr Publishing Co. v. E. W. Communications, Inc., 216 USPQ 802, 804 n.1 (TTAB 1982) (substitution resulting from partnership incorporating under the same name).

 10.   See, e.g., 37 C.F.R. § 2.113(c); 37 C.F.R. § 2.113(d); 37 C.F.R. § 3.71(d); 37 C.F.R. § 3.73(b); Fed. R. Civ. P. 17 and 25; 37 C.F.R. § 2.102(b); Drive Trademark Holdings LP v. Inofin, 83 USPQ2d 1433, 1434 n.1 (TTAB 2007) (opposition captioned in name of new opposer where assignment of pleaded registrations recorded prior to filing of notice of opposition); William & Scott Co. v. Earl’s Restaurants Ltd., 30 USPQ2d 1870, 1872-73 (TTAB 1994) (substitution of opposer appropriate where assignment occurred prior to commencement); Pro-Cuts v. Schilz-Price Enterprises Inc., 27 USPQ2d 1224, 1225 (TTAB 1993) (motion to substitute filed during testimony period granted to the extent that successor was joined); Societe des Produits Nestle S.A. v. Basso Fedele & Figli, 24 USPQ2d 1079, 1079-80 (TTAB 1992) (opposer’s motion to substitute granted where copy of assignment was filed and applicant did not object); Information Resources Inc. v. X*Press Information Services, 6 USPQ2d 1034, 1035 n.2 (TTAB 1988) (survivor of merger substituted at final decision).

See also Binney & Smith Inc. v. Magic Marker Industries, Inc., 222 USPQ 1003, 1004 n.1 (TTAB 1984) (substitution as party defendant after recordation of chain of title in the Office); Electronic Realty Associates, Inc. v. Extra Risk Associates, Inc., 217 USPQ 810, 812 n.3 (TTAB 1982) (substitution after testimony periods had expired; assignment document showing nunc pro tunc assignment to the day preceding the filing date of the application);Liberty & Co. v. Liberty Trouser Co., 216 USPQ 65, 66 n.1 (TTAB 1982) (substitution of party defendant as reflected in assignment records in the Office); Gold Eagle Products Co. v. National Dynamics Corp., 193 USPQ 109, 110 (TTAB 1976) (joinder of defendant instead of substitution; upon filing of assignment with the Assignment Recordation Branch, substitution may occur due to transfer of ownership prior to institution of cancellation); Aloe Creme Laboratories, Inc. v. Aloe 99, Inc., 188 USPQ 316, 322 n.12 (TTAB 1975) (reference to applicant in decision refers to both applicant of record and successor-in-interest in view of testimony regarding transfer of ownership of mark). Cf. SDT Inc. v. Patterson Dental Co., 30 USPQ2d 1707, 1708-09 (TTAB 1994) (motion to join licensee as "co-opposer" denied since right to oppose may be transferred but not shared unless timely opposition is filed); Cass Logistics Inc. v. McKesson Corp., 27 USPQ2d 1075, 1076-77 (TTAB 1993) (substitution of proper party in interest not permitted in view of misidentification of original party).

 11.   With respect to Trademark Act § 66(a), 15 U.S.C. § 1141f(a), applications and registrations, the USPTO will record only those assignments, or other documents of title, that have been recorded in the International Register. See TMEP §501.07;TMEP § 1904.06.

 12.   See Pro-Cuts v. Schilz-Price Enterprises Inc., 27 USPQ2d 1224, 1225 (TTAB 1993) (joinder); Pennsylvania Fashion Factory, Inc. v. Fashion Factory, Inc., 215 USPQ 1133, 1134 n.3 (TTAB 1982) (substitution of successor-in-interest as party defendant).

 13.   See Fed. R. Civ. P. 25(c); Turner v. Hops Grill & Bar Inc., 52 USPQ2d 1310, 1311 n.1 (TTAB 1999) (decision will be binding upon the assignee); Hamilton Burr Publishing Co. v. E. W. Communications, Inc., 216 USPQ 802, 804 n.1 (TTAB 1982) (same).

 14.   See Avia Group International Inc. v. Faraut, 25 USPQ2d 1625, 1626-27 (TTAB 1992) (respondent’s motion to join petitioner’s licensor as party plaintiff denied). Cf. 37 C.F.R. § 2.107(a)  and 37 C.F.R. § 2.107(b)  (if no assignment of a pleaded mark, opposition may not be amended to add a joint opposer after close of time for filing opposition).

 15.   Amazon Technologies Inc. v. Wax, 95 USPQ2d 1865, 1871 (TTAB 2010).

512.02    Change of Name

If the name of a party to an inter partes proceeding before the Board is changed, the title of the Board proceeding may be changed, upon motion or upon the Board’s own initiative, to reflect the change of name, provided that appropriate evidence thereof is made of record in the proceeding. Such evidence may consist, for example, of a copy of the name change document, or the reel and frame numbers at which such document is recorded in the Assignment Recordation Branch of the USPTO. [ Note 1.] If no such evidence is made of record in the proceeding, the proceeding may be continued in the party’s old name. [ Note 2.] See note to TBMP § 512.01 regarding assignments of Trademark Act § 66(a), 15 U.S.C. § 1141f(a)  applications and registrations.

A name change document does not have to be recorded in the Assignment Recordation Branch of the USPTO with respect to a defendant’s involved application or registration, or a plaintiff’s pleaded application or registration, in order for the Board proceeding title to be changed to reflect the new name. However, recordation is advisable because it facilitates proof of ownership of the application or registration, and because filing for recordation is one of the 37 C.F.R. § 3.85  requirements for an applicant that desires, if it prevails in the proceeding, to have its registration issue in its new name. [ Note 3.] See TBMP § 512.03 (Issuance of Registration to Assignee, or in New Name).

NOTES:

 1.   See, e.g., Spirits International B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 USPQ2d 1545, 1546 n.1 (TTAB 2011) (changing caption to reflect change of corporate entity after conversion; best practice is to file a separate submission with the Board advising of the change); WMA Group Inc. v. Western International Media Corp., 29 USPQ2d 1478, 1479 n.3 (TTAB 1993) (changing caption to reflect change of corporate name of party); Perma Ceram Enterprises Inc. v. Preco Industries Ltd., 23 USPQ2d 1134, 1135 n.1 (TTAB 1992) (caption to be changed if document evidencing change of name is submitted); NutraSweet Co. v. K & S Foods Inc., 4 USPQ2d 1964, 1964 n.2 (TTAB 1987) (although no request to substitute was filed, where the change of name was recorded and there was no dispute as to facts and circumstances surrounding name change, opposer under new name was substituted as plaintiff); Binney & Smith Inc. v. Magic Marker Industries, Inc., 222 USPQ 1003, 1004 n.1 (TTAB 1984) (substitution of defendant due to recordation of merger, assignment and change of name in Office). Cf. In re Brittains Tullis Russell Inc., 23 USPQ2d 1457, 1458 n.1 (Comm’r 1991) (in petition to Commissioner to accept Trademark Act §§ 8 & 15 affidavit, registration file evidenced change of registrant’s name and claim of ownership accepted).

 2.   See, e.g., Maine Savings Bank v. First Banc Group of Ohio, Inc., 220 USPQ 736, 737 n.3 (TTAB 1983) (caption was not changed to reflect name change where no supporting documents submitted); National Blank Book Co. v. Leather Crafted Products, 218 USPQ 827, 827 n.2 (TTAB 1983) (opposer's change of name). Cf. Fed. R. Civ. P. 25(c).

 3.   See TMEP § 502.03. Cf. TMEP § 1906.01(a) and TMEP § 1906.01(c) for assignments and changes of names involving international registrations on the International Register.

512.03    Issuance of Registration to Assignee, or in New Name

37 C.F.R. § 3.85  Issue of registration to assignee. The certificate of registration may be issued to the assignee of the applicant, or in a new name of the applicant, provided that the party files a written request in the trademark application by the time the application is being prepared for issuance of the certificate of registration, and the appropriate document is recorded in the Office. If the assignment or name change document has not been recorded in the Office, then the written request must state that the document has been filed for recordation. The address of the assignee must be made of record in the application file.

Even where the assignee of an application that is the subject matter of a Board inter partes proceeding has been joined or substituted as a party to the proceeding, see TBMP § 512.01, any registration issued from the application may issue in the name of the assignor unless the assignee complies with the requirements of 37 C.F.R. § 3.85. Specifically, to ensure that the registration will issue in its name, the assignee must file a written request in the application (or in the Board proceeding, if that proceeding has not yet ended), by the time the application is being prepared for issuance of the certificate of registration that the registration be issued in its name. [ Note 1.] In addition, an appropriate document must be of record in the Assignment Recordation Branch of the USPTO, or the written request must state that the document has been filed for recordation. Finally, the address of the assignee must be made of record in the application file.

Similarly, even though the title of an inter partes proceeding before the Board may have been changed to reflect a name change of an applicant whose application is the subject of the proceeding, any registration issued from the application may issue in the applicant’s original name unless the applicant complies with the requirements of 37 C.F.R. § 3.85. [ Note 2.] If an assignment or change of name document is recorded in the Assignment Recordation Branch well prior to the time the subject application is prepared for issuance of a registration, the registration may issue in the name of the assignee, or in the new name, even if no 37 C.F.R. § 3.85  request is filed. However, the registration may issue in the name of the assignor or in the old name. The purpose of the written request is to call the attention of the USPTO to the assignment or change of name and thus to ensure that the registration issues in the name of the assignee or in the new name. Accordingly, it is sufficient for the purpose if applicant files a paper referring to the assignment or change of name and the assignment or change of name document has either been recorded, or applicant states that the document has been submitted for recording. [ Note 3.]

Please Note: Trademark Act § 10, 15 U.S.C. § 1060, and part 3 of 37 C.F.R. are not applicable to Trademark Act § 66(a), 15 U.S.C. § 1141f(a), applications and registrations. [ Note 4.] Except in limited circumstances [ Note 5.], requests to record assignments of § 66(a) applications and registrations must be filed directly with the International Bureau. [ Note 6.] The International Bureau will notify the USPTO of any changes in ownership recorded in the International Register. The USPTO will record only those assignments, or other documents of title, that have been recorded in the International Register. [ Note 7.]

NOTES:

 1.   Smart Inventions Inc. v. TMB Products LLC, 81 USPQ2d 1383, 1384 n.3 (TTAB 2006) (new owner can help ensure issuance of registration in its name by recording assignment in USPTO and filing request that registration issue in new owner’s name).

 2.   See Perma Ceram Enterprises Inc. v. Preco Industries Ltd., 23 USPQ2d 1134, 1134 n.1 (TTAB 1992).

 3.   See 37 C.F.R. § 2.171  for procedures to receive a new certificate of registration on change of ownership or when ownership with respect to some, but not all, of the goods and/or services has changed.

 4.   See 37 C.F.R. § 7.22  et seq. for information on recording changes to Trademark Act § 66(a), 15 U.S.C. § 1141f(a), applications and registrations.

 5.   See 37 C.F.R. § 7.23; 37 C.F.R. § 7.24.

 6.   See Trademark Act § 72, 15 U.S.C. § 1141l; 37 C.F.R. § 7.22, TMEP § 501.07, and TMEP § 1904.06.

 7.   See TMEP § 501.07 and TMEP § 1904.06.

512.04    Misidentification

Fed. R. Civ. P. 15(a) Amendments Before Trial.

  • (1) Amending as Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule. 12(b), (e), or (f), whichever is earlier.
  • (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

15 U.S.C. § 1063(a)  … An opposition may be amended under such conditions as may be prescribed by the Director.

When the plaintiff in a Board inter partes proceeding misidentifies itself or the mark or registration upon which it relies in the complaint, if the plaintiff can establish to the Board’s satisfaction that this misidentification was merely a non-substantive mistake, the Board may allow amendment of the complaint, pursuant to Fed. R. Civ. P. 15(a), to correct the misidentification and/or to substitute the proper party in interest. [ Note 1.] See TBMP § 303.05(c) (Misidentification of Opposer).

When the plaintiff in a Board inter partes proceeding misidentifies an application or registration number that is the subject of the Board proceeding, and the plaintiff can establish, in a timely manner and to the Board’s satisfaction that this misidentification was a non-substantive mistake, the Board may allow amendment of the complaint (and of the Board proceeding title) to correct the misidentification of the subject application or registration. [ Note 2.] However, if a notice of opposition misidentifies the application number(s) against which the opposition is intended, and the defect is not corrected within the time for filing an opposition against the intended application(s) under Trademark Act § 13(a), 15 U.S.C. § 1063(a), this defect cannot be cured. The opposition against the misidentified application will be dismissed and an opposition against the intended application will not be instituted because it would be untimely. [ Note 3.] See also TBMP § 306.04. Similarly, if a petition to cancel misidentifies the registration number against which the cancellation is intended, and the defect is not corrected within the time for petitioning to cancel the intended registration under Trademark Act § 14, 15 U.S.C. § 1064, this defect cannot be cured. The petition to cancel the misidentified registration will be denied and a petition to cancel the intended registration will not be instituted because it would be untimely.

An applicant may correct a defect in identifying itself by name or legal entity in the application where it is a single, continuing commercial entity and was the owner of the mark as of the filing date of the application and that entity in fact filed the application. [ Note 4.] Also, where a merger occurred prior to filing an application, but the pre-merger corporation and owner of the mark has ceased to exist and is identified as the applicant, the corporation that remains after the merger may correct this defect by identifying itself as applicant. [ Note 5.]

NOTES:

 1.   See Mason Engineering & Design Corp. v. Mateson Chemical Corp., 225 USPQ 956, 957 n.3 (TTAB 1985) (deeming pleadings amended to recite opposer's correct name; Arbrook, Inc. v. La Citrique Belge, Naamloze Vennootschap, 184 USPQ 505, 505-06 (TTAB 1974) (amendment granted to reflect proper party in interest); Lone Star Manufacturing Co. v. Bill Beasley, Inc., 176 USPQ 426, 426 (TTAB 1972) (amendment granted to correct corporate title), rev’d on other grounds, 498 F.2d 906, 182 USPQ 368 (CCPA 1974); Davidson v. Instantype, Inc., 165 USPQ 269, 270-71 (TTAB 1970) (amendment granted to substitute proper party in interest); Pyco, Inc. v. Pico Corp., 165 USPQ 221, 221-22 (TTAB 1969) (amendment granted to substitute real party in interest; Raker Paint Factory v. United Lacquer Manufacturing Corp., 141 USPQ 407, 408-09 (TTAB 1964) (amendment granted to substitute proper party; Textron, Inc. v. Gillette Co., 177 USPQ 530, 531-32 (Comm’r 1973) (name of party in interest may be corrected by amendment. Cf. 37 C.F.R. § 2.102(b); Cass Logistics Inc. v. McKesson Corp., 27 USPQ2d 1075, 1076-77 (TTAB 1993) (amendment to correct misidentification and substitute proper party in interest not permitted).

 2.   See Accu Personnel Inc. v. Accustaff Inc., 38 USPQ2d 1443, 1445-46 (TTAB 1996) (applicant’s misidentification of itself as a corporation was harmless mistake); Argo & Co. v. Springer, 198 USPQ 626, 635 (TTAB 1978) (Board allowed substitution of three individuals for a legally defective corporate applicant finding no mistake as to the true owner of the mark but rather only a mistake as to legal form or identity of that owner); Argo & Co. v. Springer, et al., 189 USPQ 581, 582 (TTAB 1976); U.S. Pioneer Electronics Corp. v. Evans Marketing, Inc., 183 USPQ 613, 614 (Comm’r 1974) (deletion of "company" was correctable mistake). Cf. TMEP § 803.06, TMEP § 1201.02(b), and TMEP § 1201.02(c); Huang v. Tzu Wei Chen Food Co., 849 F.2d 1458, 7 USPQ2d 1335, 1335-36 (Fed. Cir. 1988) (application filed by individual void where owner was corporation, even though individual was affiliated with corporation).

Compare to the following ex parte decisions involving mistakes as to applications and renewals, e.g., In re Tong Yang Cement Corp., 19 USPQ2d 1689, 1690-91 (TTAB 1991) (correction of application not permitted where joint venture owned the mark but the application was filed by a corporation which was one member of the joint venture); In re Atlanta Blue Print Co., 19 USPQ2d 1078, 1078 (Comm’r 1990)(correction of declaration under Sections 8 and 15 of the Trademark Act, 15 U.S.C. §§ 1058 & 1065); In re Techsonic Industries, Inc., 216 USPQ 619, 619-20 (TTAB 1982); In re Eucryl Ltd., 193 USPQ 377, 378 (TTAB 1976).

 3.   Yahoo! Inc. v. Loufrani, 70 USPQ2d 1735, 1736 (TTAB 2004).

 4.   Accu Personnel Inc. v. Accustaff Inc., 38 USPQ2d 1443, 1444-45 (TTAB 1996) (corporation formed by merger of four separate companies which did not survive the merger, was proper person to file even if corporation did not exist at time of filing). Cf. Great Seats Ltd. v. Great Seats Inc., 84 USPQ2d 1235, 1240 (TTAB 2007) (application void ab initio where two separate commercial entities were in existence on application filing date and application was filed in name of wrong entity).

 5.   Accu Personnel Inc. v. Accustaff Inc., 38 USPQ2d 1443, 1444-45 (TTAB 1996).