Tequila Cuadra S. de RL de CV v. Manufacturera de Botas Cuadra, S.A. de C.V.

This Opinion is a

Precedent of the TTAB

Mailed: May 8, 2025

UNITED STATES PATENT AND TRADEMARK OFFICE

_____

Trademark Trial and Appeal Board

_____

Tequila Cuadra S. de RL de CV

v.

Manufacturera de Botas Cuadra, S.A. de C.V.

_____

Opposition No. 91282327

_____

Miguel Villarreal, Jr. and Brandon T. Cook of Gunn, Lee & Cave, P.C.,

for Tequila Cuadra S. de RL de CV.

Angel Miguel Munoz of Munoz-Lopez & Associates PLLC,

for Manufacturera de Botas Cuadra, S.A. de C.V.

_____

Before Lykos, English, and Stanley,

Administrative Trademark Judges.

Opinion by Stanley, Administrative Trademark Judge:

Manufacturera de Botas Cuadra, S.A. de C.V. (“Applicant”) applied to register the

standard-character mark CUADRA on the Principal Register for “alcoholic beverages,

except beer; distilled spirits produced in Mexico in accordance with specific

standards” in International Class 33.1

1 Application Serial No. 88842187, filed March 20, 2020, under Section 1(b) of the Trademark

Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the

Opposition No. 91282327

Tequila Cuadra S. de RL de CV (“Opposer”) filed a notice of opposition to

registration of Applicant’s mark based on: (1) Applicant’s lack of a bona fide intent to

use under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b); and (2) likelihood

of confusion with Opposer’s previously used mark CUADRA for alcoholic spirits,

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2

In its answer, Applicant denied the salient allegations in the notice of opposition.3

The opposition has been fully briefed.

Having considered the evidentiary record, the pleadings, the parties’ arguments,

and applicable authorities, as explained below, we find that Opposer has carried its

mark in commerce. The application states “The English translation of ‘CUADRA’ in the mark

is ‘STABLE’.”

2 Notice of Opposition, 1 TTABVUE.

Citations to the appeal record are to TTABVUE, the Board’s online docketing system. See,

e.g., Turdin v. Trilobite, Ltd., Conc. No. 94002505, 2014 TTAB LEXIS 17, at *6 n.6

(TTAB 2014).

As part of an internal Board pilot program, this opinion cites decisions of the U.S. Court of

Appeals for the Federal Circuit and the U.S. Court of Customs and Patent Appeals by the

pages on which they appear in the Federal Reporter (e.g., F.2d, F.3d, or F.4th). For decisions

of the Board, this opinion cites to the LEXIS legal database and cites only precedential

decisions, unless otherwise noted. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF

PROCEDURE (TBMP) § 101.03(a)(2) (2024) for acceptable citation forms to TTAB cases.

3 Answer, 4 TTABVUE. In its answer, Applicant also pled two “affirmative defenses,” failure

to state a claim and abandonment. Id. at 6. Failure to state a claim is not a true affirmative

defense and will be given no consideration because it relates to an assertion of the

insufficiency of the pleading rather than a statement of a defense to the merits of a claim.

See Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., Opp. No. 91110043, 2001 TTAB

LEXIS 562, at *18 n.7 (TTAB 2001). Applicant did not pursue its abandonment defense at

trial or address it in its brief, thereby forfeiting or impliedly waiving the defense. See Alcatraz

Media, Inc. v. Chesapeake Marine Tours, Inc., Can. No. 92050879, 2013 TTAB LEXIS 347, at

*5 n.6 (TTAB 2013), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.); Keystone Consol. Indus.

v. Franklin Inv. Corp., Can. No. 92066927, 2024 TTAB LEXIS 290, at *5 n.10 (TTAB 2024)

(“Affirmative defenses that were asserted in an answer but then not pursued at trial may be

deemed impliedly waived, while affirmative defenses that were never asserted may be

deemed forfeited.”).

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Opposition No. 91282327

burden, and we sustain the opposition on the ground of Applicant’s lack of a bona fide

intent to use its mark in commerce as of the application filing date. Because we

resolve this proceeding on Opposer’s lack of bona fide intent claim, we need not and

do not reach Opposer’s likelihood of confusion claim. See Yazhong Inv. Ltd. v. Multi-

Media Tech Ventures, Ltd., Can. No. 92056548, 2018 TTAB LEXIS 168, at *44 (TTAB

2018).

I. The Record

The record includes the pleadings and, pursuant to Trademark Rule 2.122(b),

37 C.F.R. § 2.122(b), the file of the involved application. The parties also submitted:

A. Opposer’s Trial Period

1. Opposer’s Notice of Reliance: Social media websites, third-party

Internet evidence, screenshots from the Instituto Mexicano de la

Propriedad Industrial (“IMPI”) website and English translations

of the same,4 Applicant’s discovery responses, and the prosecution

files for two of Opposer’s unpleaded trademark applications,

Serial Nos. 98206325 and 98206323.5

2. Testimony Declaration with exhibits of Felipe de Jesus Navarro

Alcala, Opposer’s owner and officer (“Alcala Declaration”).6

B. Applicant’s Trial Period

1. Applicant’s Notice of Reliance: Trademark Status & Document

Retrieval (TSDR) printouts for some of the parties’ uninvolved

applications and registrations.

4 We take judicial notice of the USPTO page stating that the IMPI is the national Intellectual

Property Office of Mexico. https://www.uspto.gov/learning-and-resources/pursuing-

international-ip-protection/mexico. See TBMP § 704.12.

5 Opposer’s Notice of Reliance (“NOR”), 9 TTABVUE.

6 Alcala Decl., 10 TTABVUE.

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Opposition No. 91282327

2. Testimony Declaration with exhibits of Jorge Solis, General

Manager of Vinedo SMA S.A. de C.V. (“Vinedo San Miguel”), a

related company to Applicant (“Solis Declaration”).7

3. Testimony Declaration with exhibits of Rosalinda Flores-

Rodriguez, Chief Financial Officer of Applicant (“Flores

Declaration”).8

II. Evidentiary Objections

A. Opposer’s Evidentiary Objections

Opposer objects to certain Internet materials submitted with the Solis and Flores

Declarations as inadmissible hearsay, namely Exhibit 1 to the Solis Declaration and

Exhibits B, D, E, and F to the Flores Declaration.9 Opposer also objects to Paragraph

15 of the Solis Declaration on the ground that “[n]o foundation has been laid for Mr.

Solis to testify regarding the intentions of [Applicant].”10

Starting with the foundation objection, “[p]rocedural objections to testimony and

evidence must be raised promptly to allow an opportunity to cure.” RLP Ventures,

LLC v. Panini Am., Inc., Opp. No. 91268816, 2023 TTAB LEXIS 380, at *8

(TTAB 2023). Opposer’s foundation objection is procedural, and because it was raised

for the first time in Opposer’s trial brief, it is forfeited. See Moke Am. LLC v. Moke

USA, LLC, Opp. No. 91233014, 2020 TTAB LEXIS 18, at *16 (TTAB 2020) (“An

objection to foundation raised for the first time in a trial brief is untimely because the

7 Solis Decl., 12 TTABVUE.

8 Flores Decl., 13 TTABVUE (public) and 14 TTABVUE (confidential). Certain exhibits to the

Flores Declaration have been filed under seal pursuant to the Board’s Standard Protective

Order. Applicant refers to Ms. Flores-Rodriguez as Ms. Flores throughout its brief (18

TTABVUE), and we do the same in this opinion.

9 Opposer’s Br., 22-23.

10 Id. at 23.

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Opposition No. 91282327

party offering the testimony (whether by deposition, affidavit or declaration) does not

have the opportunity to cure the alleged defect.”).

As to the hearsay objections, the witnesses have testified that the documents

Opposer objects to are what they purport to be. More generally, an opposition

proceeding is akin to a bench trial, and Board judges are capable of assessing the

proper evidentiary weight to be accorded the testimony and evidence, taking into

account the imperfections surrounding such testimony and evidence. We have

considered the testimony and evidence introduced into the record. In doing so, we

have kept in mind Opposer’s objections and we have accorded whatever probative

value the subject testimony and evidence merit. See Luxco, Inc. v. Consejo Regulador

del Tequila, A.C., Opp. No. 91190827, 2017 TTAB LEXIS 6, at *4 (TTAB 2017); U.S.

Playing Card Co. v. Harbro, LLC, Opp. No. 91162078, 2006 TTAB LEXIS 484, at *9-

10 (TTAB 2006); see also Hangzhou Mengku Tech. Co. v. Shanghai Zhenglang Tech.

Co., Opp. No. 91272143, 2024 TTAB LEXIS 575, at *9 (TTAB 2024) (“Administrative

Trademark Judges are not lay jurors who might easily be misled, confused, or

prejudiced by irrelevant or unreliable evidence.”).

B. Applicant’s Evidentiary Objections

1. Alcala Declaration

Applicant objects to the Alcala Declaration in its entirety “on the grounds that the

testimony fails to comply with Trademark Rule 2.20, 37 C.F.R. § 2.20, and 28 U.S.C.

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Opposition No. 91282327

§ 1746, as it was submitted without a specific date and lacks the name beneath the

signature identifying the purported witness.”11

The Alcala Declaration includes a statement that the declaration is being made

by “Felipe de Jesús Navarro Alcalá,” and it also includes an attestation consistent

with 28 U.S.C. § 1746, namely, “I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true and correct to the best of my

knowledge.” See Trademark Rule 2.20, 37 C.F.R. § 2.20 (“Instead of an oath, affidavit,

or sworn statement, the language of 28 U.S.C. 1746 … may be used[.]”). Applicant

does not contend that Mr. Alcala did not sign the declaration, and nothing in the

record suggests that the signature on the Alcala Declaration is not in fact Mr. Alcala’s

signature. As such, Applicant’s objection is formalistic and procedural, not

substantive.

Because these procedural objections were raised for the first time in Applicant’s

trial brief, they are forfeited. Cf. Syngenta Crop Protection Inc. v. Bio-Chek LLC, Opp.

No. 91175091, 2009 TTAB LEXIS 70, at *6-7 (TTAB 2009) (objection that testimony

deposition transcripts were not signed waived by failing to timely raise objection –

basis for objection could have been cured if objection was raised when the evidence

was offered); Of Counsel Inc. v. Strictly of Counsel Chartered, Opp. No. 91081481,

1991 TTAB LEXIS 38, at *2 n.2 (TTAB 1991) (where opposer’s testimony deposition

was taken two days prior to the opening of opposer’s testimony period, but applicant

first raised an untimeliness objection in its brief on the case, objection waived, since

11 Applicant’s Br., 18 TTABVUE 28.

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Opposition No. 91282327

the premature taking of the deposition could have been corrected on seasonable

objection); TBMP § 707.03(c)(1) (procedural objections that are waived unless raised

promptly include “[o]bjections regarding the signing of testimonial deposition

transcripts”).

2. Foreign-Language Documents

Applicant objects to the documents in Exhibits A-E and G to Opposer’s Notice of

Reliance on the grounds that certain portions of those documents (social media

websites, third-party Internet screenshots, and files from the IMPI) are in a foreign

language without an accompanying English translation.12 Applicant also objects to

Tabs 3, 4, 6, 7, 11, and 13 to the Alcala Declaration (described below) on the same

ground.13

TBMP § 104 provides that “Board proceedings are conducted in English. If a party

intends to rely upon any submissions that are in a language other than English, the

party should also file a translation of the submissions. If a translation is not filed, the

submissions may not be considered.” Exhibit G to Opposer’s Notice of Reliance and

Tabs 3, 4, 6, 7, 11 and 13 to the Alcala Declaration are entirely in Spanish with no

English translation, and accordingly have been given no consideration. See Lacteos

de Honduras S.A. v. Industrias Sula, S. De R.L. de C.V., Opp. No. 91243095, 2020

TTAB LEXIS 13, at *17 (TTAB 2020) (“[B]ecause the exhibits [to the counterclaim]

are in Spanish and Applicant has not provided an English translation of the

12 Applicant’s Br., 18 TTABVUE 27.

13 Id. at 28.

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Opposition No. 91282327

documents, they have not been considered.”); Swiss Watch Int’l Inc. v. Fed’n of the

Swiss Watch Indus., Can. No. 92046786, 2012 TTAB LEXIS 3, at *5 n.8 (TTAB 2012)

(“Some of the articles are in foreign languages; because respondent did not submit

translations, they have no probative value.”).

We come to a different result with respect to Exhibits A-E to Opposer’s Notice of

Reliance. These exhibits comprise social media pages and Internet website printouts,

which include a mix of English and Spanish and pictures of the goods bearing

Opposer’s mark.14 While the probative value may be somewhat lessened by the

presence of some untranslated Spanish, we cannot say the social media pages and

Internet evidence are unintelligible as a whole or lacking in probative value merely

based on the presence of foreign wording.

In view thereof, Applicant’s objections to Exhibits A-E to Opposer’s Notice of

Reliance are overruled, and Applicant’s objections to Exhibit G to Opposer’s Notice

of Reliance and Tabs 3, 4, 6, 7, 11 and 13 to the Alcala Declaration are sustained.

III. Entitlement to a Statutory Cause of Action

An opposer in an opposition proceeding before the Board must prove its

entitlement to a statutory cause of action. Empresa Cubana Del Tabaco v. Gen. Cigar

Co., 753 F.3d 1270, 1274 (Fed. Cir. 2014). To establish entitlement to oppose, Opposer

must demonstrate: (1) that its claim falls within the zone of interests protected by the

statute (i.e., it has a “real interest” in the outcome of the proceeding); and (2) damage

proximately caused by the proposed registration (i.e., a reasonable basis for its belief

14 Opposer’s NOR, 9 TTABVUE 7-78.

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in damage). See Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed. Cir.

2022) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129,

132 (2014)); Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303-07 (Fed. Cir. 2020);

Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1373-

74 (Fed. Cir. 2020); Empresa, 753 F.3d at 1275.

Mr. Alcala avers that: on March 26, 2021, Opposer exported CUADRA tequila to

Rico Suave Tequila LLC, of Richmond, Virginia through its affiliated company

Productos de Jalisco S. de R.L. de C.V.; Opposer has been exporting CUADRA tequila

since that time; and the Tierra Group currently is Opposer’s U.S. distributor for the

CUADRA tequila.15 In view of this uncontroverted testimony supporting its real

interest and reasonable belief in damage from the registration of the identical

CUADRA mark for the same goods, Opposer has established its entitlement to a

statutory cause of action. See Monster Energy Co. v. Lo, Opp. No. 91225050, 2023

TTAB LEXIS 14, at *16 (TTAB 2023) (entitlement based on common law use of mark

plausibly alleged to be confusingly similar). “[O]nce an opposer meets the

requirements for [statutory entitlement], it can rely on any of the statutory grounds

for opposition set forth in ... [the Trademark Act].” Coach Servs., Inc. v. Triumph

Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012).

IV. Lack of Bona Fide Intent to Use

Trademark Act Section 1(b) provides:

A person who has a bona fide intention, under

circumstances showing the good faith of such person, to use

15 Alcala Decl. at ¶¶ 9-19, 10 TTABVUE 3-4.

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a trademark in commerce may request registration of its

trademark on the principal register hereby established by

paying the prescribed fee and filing in the Patent and

Trademark Office an application and a verified statement,

in such form as may be prescribed by the Director.

15 U.S.C. § 1051(b). “Because a bona fide intent to use the mark in commerce is a

statutory requirement of a valid intent-to-use trademark application under

[Trademark Act] Section 1(b), the lack of such intent is a basis on which an opposer

may challenge an applicant’s mark.” M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368,

1375 (Fed. Cir. 2015).

“A determination of whether an applicant has a bona fide intention to use the

mark in commerce is an objective determination based on all the circumstances.”

Boston Red Sox Baseball Club Ltd. P’ship v. Sherman, Opp. No. 91172268, 2008

TTAB LEXIS 67, at *16 (TTAB 2008) (citing Lane Ltd. v. Jackson Int’l Trading Co.,

Opp. No. 91092025, 1994 TTAB LEXIS 41, at *16 (TTAB 1994)). The central inquiry

in a lack of bona fide intent to use claim is whether at the time of filing the application

“the applicant’s intent to use the mark was firm and not merely intent to reserve a

right in a mark.” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1365

(Fed. Cir. 2022) (quoting M.Z. Berger & Co., 787 F.3d at 1376) (internal quotation

marks omitted).

“Opposer has the initial burden of demonstrating by a preponderance of the

evidence that applicant lacked a bona fide intent to use the mark on the identified

goods [on the filing date of its application].” Boston Red Sox Baseball Club,

2008 TTAB LEXIS 67, at *16. “The absence of any documentary evidence on the part

of an applicant regarding such intent constitutes objective proof sufficient to prove

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Opposition No. 91282327

that the applicant lacks a bona fide intention to its use its mark in commerce.” Id.

(citing Commodore Elecs. Ltd. v. CBM Kabushiki Kaisha, Opp. No. 91086336, 1993

TTAB LEXIS 6, at *13 (TTAB 1993)); see also Spirits Int’l, B.V. v. S.S. Taris Zeytin

Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, Opp. No. 91163779, 2011 TTAB

LEXIS 204, at *10 (TTAB 2011). If an opposer establishes a prima facie case, the

burden shifts to the applicant to rebut that prima facie case by producing evidence

which would establish that it had the requisite bona fide intent to use the mark when

it filed its application. See Saul Zaentz Co. v. Bumb, Opp. No. 91156452, 2010 TTAB

LEXIS 236, at *13 (TTAB 2010); Boston Red Sox Baseball Club, 2008 TTAB LEXIS

67, at *17; Commodore Elecs., 1993 TTAB LEXIS 6, at *13 n.11.

The evidentiary bar for showing bona fide intent to use is not high, but more is

required than “a mere subjective belief.” M.Z. Berger & Co., 787 F.3d at 1375. The

objective evidence must indicate an intention to use the mark that is “firm” and

“demonstrable.” Id. at 1375-76. In other words, Applicant’s evidence bearing on its

bona fide intent must be “objective” in the sense that it consists of real-life facts and

Applicant’s actions, as opposed to Applicant’s uncorroborated testimony as to its

subjective state of mind. See 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS

AND UNFAIR COMPETITION § 19:14 (5th ed. Feb. 2025 update) (“Congress did not intend

the issue to be resolved simply by an officer of the applicant later testifying, ‘Yes,

indeed, at the time we filed that application, I did truly intend to use the mark at

some time in the future.’”).

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Opposition No. 91282327

Here, Opposer argues that Applicant lacked a bona fide intent to use the involved

mark in commerce for “alcoholic beverages, except beer; distilled spirits produced in

Mexico in accordance with specific standards” when it filed the application because:

(1) “Applicant has no documentary evidence to support its allegation of

bona fide intent to use CUADRA in U.S. commerce with the Identified

Goods at the time the application was filed on March 20, 2020”;

(2) “Applicant identified no communications, no invoices, no contracts, no

labels, no formulas, no applications for regulatory approval, no purchase

orders, no business plans, no meeting minutes, or any other document

contemporaneous with the filing of the CUADRA Application to support

a bona fide intent to use the CUADRA mark in U.S. commerce with the

Identified Goods”;

(3) Applicant has not communicated with the Consejo Regulador del

Tequila (“CRT”), the Mexican regulatory entity that controls the

production of Tequila, or the United States Department of Treasury

Alcohol and Tobacco Tax and Trade Bureau (“TTB”), and therefore has

not yet begun seeking the required regulatory approval in Mexico or the

United States;

(4) the documents Applicant relies upon are “inadmissible hearsay,

irrelevant to bona fide intent to use the CUADRA mark in U.S.

commerce, and/or not contemporaneous with the filing of the CUADRA

Application”;

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Opposition No. 91282327

(5) the bottles of tequila bearing Applicant’s mark are merely props for

promotional photoshoots for Applicant’s footwear and clothing products;

(6) the inclusion of alcoholic products in advertising for Applicant’s

footwear and clothing products does not evidence a bona fide intent to

use Applicant’s mark in connection with alcoholic beverages; and

(7) the capacity of companies related to Applicant to produce alcoholic

beverages outside the United States does not prove Applicant’s bona fide

intent to use its involved mark in the United States, especially when

there are no communications between Applicant and any of its affiliated

companies concerning the production of any CUADRA-branded alcoholic

beverages for sale in the United States (or for that matter anywhere

else).16

We find that Opposer has met its initial burden of a prima facie showing that, as

of the filing date of Applicant’s application, Applicant did not have a bona fide intent

to use the CUADRA mark in commerce that may lawfully be regulated by Congress,

15 U.S.C. § 1127, (referred to as “United States commerce”) for the goods identified

in the application, namely, “alcoholic beverages, except beer; distilled spirits

produced in Mexico in accordance with specific standards.” Of particular significance

are Applicant’s responses to Opposer’s interrogatories, wherein first, Applicant

acknowledged that it has had no communications with the necessary regulatory

authority in the United States concerning the production and sale of any CUADRA-

16 Opposer’s Br., 17 TTABVUE 12-19.

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Opposition No. 91282327

branded alcoholic beverage.17 Second, Applicant conceded that the only documents it

relies upon are “documents showing Applicant’s ownership and/or control of the land,

facilities, equipment and personnel necessary to produce and market the Identified

Goods in U.S. commerce under the CUADRA mark,” which relate to Applicant’s

foreign capacity (i.e., Applicant’s ownership of various wineries outside the United

States).18 Third, in response to Opposer’s document requests concerning Applicant’s

first use of Applicant’s mark and Applicant’s bona fide intent to use Applicant’s mark

in U.S. commerce, Applicant produced “no communications, no invoices, no contracts,

no labels, no formulas, no applications for regulatory approval, no purchase orders,

no business plans, [and] no meeting minutes.”19

Because Opposer has made a prima facie showing that Applicant lacked a bona

fide intent to use its mark in United States commerce, the burden shifts to Applicant

to produce evidence that establishes that it had the requisite bona fide intent to use

the mark when it filed its application. Applicant attempts to do so with testimony

and documentary evidence. Ms. Flores testified, among other things, that:

• “As part of [Applicant’s] marketing and promotional efforts and consistent

with the expansion of Applicant’s existing product line under the CUADRA

17 Opposer’s NOR, 9 TTABVUE 188-89 (Response to Opposer’s Interrogatory No. 16). We also

note that Applicant acknowledged that it has had no communications with the necessary

regulatory authority in Mexico concerning the production and sale of tequila. Id. at 188

(Response to Opposer’s Interrogatory No. 15).

18 Id. at 181-82 (Response to Opposer’s Interrogatory No. 4).

19 Opposer’s Br., 17 TTABVUE 12; see also Opposer’s NOR, 9 TTABVUE 163-74 (Responses

to Opposer’s Document Request Nos. 2-6, 9, 13, 15-19).

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Opposition No. 91282327

mark [e.g., footwear and clothing] Applicant has produced and marketed

alcoholic beverages since 2010 and continues doing so to date[.]”20

• “Another way Applicant markets its CUADRA mark in connection or close

association with alcoholic beverages is through social media. Applicant has

continuously promoted its CUADRA mark and CUADRA family of marks

in association with alcoholic beverages[.]”21

• “Applicant has had the capacity to directly grow, produce, and distribute

alcoholic beverages under the CUADRA mark since at least 2013, when it

began acquiring various winegrowers as part of its group of affiliated and

subsidiary businesses.”22

• Both the Vinedo San Miguel and Hacienda San Bartolo wineries “are

commonly owned and closely associated with Applicant and have always

deliberately emphasized [their] affiliation with Applicant and [their]

association with the CUADRA mark, on their website and other marketing

material[,]” including for example, “Applicant’s CUADRA retail store sits

20 Flores Decl. at ¶ 13, 13 TTABVUE. There is no evidence that consumers would perceive

alcoholic beverages as an “expansion” of footwear or clothing products, as opposed to an

entirely distinct and unrelated product line.

21 Flores Decl. at ¶ 14, id. There is no evidence that Applicant intends to offer alcoholic

beverages in the United States apart from its clothing-related “marketing and promotional

efforts.” It is also not clear that goods “associated with” other goods for marketing purposes

are goods in trade.

22 Flores Decl. at ¶ 15, id. at 5.

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within Vinedo San Miguel’s premises [in Mexico], where visitors and

consumers are exposed to the CUADRA mark.”23

• “Applicant has experience in the alcohol industry and intends to utilize the

land, equipment and personnel in its Mexico facilities to produce and sell

CUADRA-branded alcoholic beverages.”24

Mr. Solis’s testimony and documentary evidence corroborate portions of Ms.

Flores’ testimony. Mr. Solis testified, among other things, that:

• Vinedo San Miguel is an affiliated company of Applicant as part of “the

Cuadra Group,” a group of entities and enterprises, including Applicant,

owned by “the Cuadra family.”25

• Vinedo San Miguel “grows, produces, and distributes alcoholic beverages

worldwide.”26

• Vinedo San Miguel “is the largest winegrower in the region with 52 hectares

of agricultural land where it cultivates 118 thousand vines

approximately.”27

• Since at least 2013, Applicant, through Vinedo San Miguel, has had access

to the land and equipment required to produce alcoholic beverages and the

23 Flores Decl. at ¶ 18, id.

24 Flores Decl. at ¶ 19, id.

25 Solis Decl. at ¶ 5, 12 TTABVUE 2-3.

26 Solis Decl. at ¶ 6, id. at 3.

27 Solis Decl. at ¶ 10, id.

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Opposition No. 91282327

capacity, expertise, and infrastructure to manufacture and market alcoholic

beverages.28

In addition to testimony, Applicant submitted documentary evidence that shows:

• Applicant created a promotional CUADRA-branded bottle of tequila.29 An

image of the bottle is provided below:

• Applicant created CUADRA-branded bottles of alcoholic beverages with

labels dated between 2010 and 2019.30 Images of the bottles are provided

below:

28 Solis Decl. at ¶¶ 12-14, id.

29 Ex. C to Flores Decl., 13 TTABVUE 34.

30 Ex. C to Flores Decl., id. at 38.

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• CUADRA-branded bottles of alcoholic beverages have appeared in

promotional materials for Applicant’s footwear and clothing products.31 An

image from a representative advertisement is reproduced below:

31 Ex. C to Flores Decl., id. at 39, 43, 44. The website from which the planned promotional

materials were printed (https://www.behance.net/gallery/12139793/cuadra-boots-clothing-

fw10-ad-campaign) was accessed on June 13, 2024, but the promotional materials themselves

reflect a “published” date of November 14, 2013. Id.

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Opposition No. 91282327

• A CUADRA-branded bottle of an alcoholic beverage has been featured in a

social media post for Vinedo San Miguel.32 The social media post, which is

dated in 2021, is reproduced below:

• The CUADRA mark has been featured in social media posts and Internet

webpages for Vinedo San Miguel.33 Representative social media posts, both

from 2021, are depicted below:

32 Ex. C to Flores Decl., id. at 51.

33 Ex. D to Flores Decl., id. at 50, 52-66, 199-201.

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Opposition No. 91282327

We find that Applicant has not rebutted Opposer’s prima facie showing. We begin

by noting that, consistent with Opposer’s contention, the CUADRA-branded bottles

of alcoholic beverages that have appeared in advertisements and social media posts

appear to be props for Applicant’s advertisements for its clothing and footwear

products. Applicant does not contend that it has taken steps (e.g., obtaining

regulatory approval) that would allow Applicant to produce a CUADRA-branded

alcoholic beverage for sale in the United States. We further note that the labels for

the CUADRA-branded bottles of alcoholic beverages have Spanish-language text and

do not appear to be targeted to U.S. consumers, even in the advertisements for

unrelated products.34

Likewise, the social media posts of record do not support a bona fide intent to use

the mark in United States commerce. The social media posts are all from Vinedo San

Miguel’s accounts (e.g., Facebook and Instagram), not Applicant’s accounts; and the

images appear to be from Vinedo San Miguel’s store in Mexico. Nothing in the social

media posts indicate Applicant’s intent to specifically target U.S. alcoholic beverage

consumers, and even if United States consumers engaged with these ads, that would

not prove Applicant’s intent to offer alcoholic beverages under the CUADRA mark in

the United States on March 20, 2020 when the application was filed.35

34 Even if Applicant had established that the CUADRA-branded alcoholic beverages were

produced for sale in Mexico (as opposed to being props for an advertisement), that alone

would not establish a bona fide intent to use in United States commerce. Otherwise, any

foreign applicant could prove a bona fide intent to use in the United States by simply proving

that it has offered the identified goods for sale in a foreign country.

35 Although U.S. consumers may have had access to the social media posts by virtue of them

being accessible online, there is no evidence in the record concerning what exposure, if any,

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Opposition No. 91282327

To overcome the lack of relevant documentary evidence, Applicant relies heavily

on the principle that “an applicant’s capacity to market and/or manufacture the

identified goods is evidence that weighs against a finding that an applicant lacked

bona fide intent to use.”36 Swatch AG v. M. Z. Berger & Co., Opp. No. 91187092, 2013

TTAB LEXIS 515, at *45 (TTAB 2013), aff’d, 787 F.3d 1368 (Fed. Cir. 2015).

Applicant, however, does not present any evidence of its own capacity to produce

alcoholic beverages. Instead, it relies on the capacity of its commonly-owned

winegrowers, none of whom are based in the United States and none of whom have

been shown to have produced alcoholic beverages sold in the United States. Even

considering the capacity of the commonly-owned winegrowers, such as Vinedo San

Miguel, Applicant failed to produce any communications between it and those

commonly-owned winegrowers discussing even a plan to produce a CUADRA-

branded alcoholic beverage, let alone any documents or testimony demonstrating that

concrete steps have been taken towards bringing such a product to the U.S. market

(or any other market). Indeed, none of Applicant’s trial witnesses testify that

discussions between Applicant and its winegrowers for a CUADRA-branded alcoholic

beverage have ever occurred.

Lastly, even if we credit all of Applicant’s testimony and documentary evidence as

supporting a bona fide intent to use the CUADRA mark in connection with alcoholic

beverages generally (e.g., in Mexico), the record as a whole does not support a finding

U.S. consumers may have had to these social media posts. For example, how many of the

“views,” “likes” or “shares” were by U.S. consumers? The record is silent.

36 Applicant’s Br., 18 TTABVUE 21-25.

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Opposition No. 91282327

of a bona fide intent to use the mark in United States commerce. M.Z. Berger, 787

F.3d at 1377 (“[V]iewing the evidence as a whole, we find that substantial evidence

supports the Board’s conclusion.”). Nothing in Applicant’s testimony or documentary

evidence ties any use or intended use of the CUADRA mark in association with

alcoholic beverages to United States commerce. Cf. id. at 1378 (Board did not err in

finding “no nexus between Berger’s general capacity to produce watches and the

capacity required to produce a ‘smart’ watch”). Applicant has not identified any

communications, invoices, or contracts with its affiliated companies (or anyone else

for that matter) that would establish a bona fide intent to use the CUADRA mark in

connection with an alcoholic beverage to be offered in the United States. Applicant

also has not identified any business plans or any internal or external business

documents or communications (e.g., formulas, labels, purchase orders, meeting

minutes, etc.) that even hint at an intention to sell a CUADRA-branded alcoholic

beverage in the United States. Applicant fails to explain why no such evidence exists.

We have carefully considered all of the parties’ arguments and evidence of record

as a whole, even if not specifically discussed herein. Viewing all circumstances

objectively, we conclude that Applicant’s actions fail to show a bona fide intention to

use the mark in a real and legitimate commercial sense on the identified goods in

United States commerce at the time it filed the application. Therefore, we find that

Opposer has established, by a preponderance of the evidence, that Applicant lacked

a bona fide intent to use the mark CUADRA at the time it filed the application.

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Opposition No. 91282327

V. Decision

We sustain the opposition under Trademark Act Section 1(b). Because we have

found for Opposer on its claim of lack of bona fide intent to use, we need not reach

the merits of Opposer’s likelihood of confusion claim.

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