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FOR THE COURT


/s/ Daniel E. O'Toole

Daniel E. O'Toole
Clerk of Court


Case: 13-1541 Document: 46-1 Page: 1 Filed: 08/07/2014
NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MICHAEL J. CUTINO,
Appellant,

v.

NIGHTLIFE MEDIA, INC.,
Appellee.
______________________

2013-1541
______________________

Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board, in Opposition
No. 91186025.
______________________

Decided: August 7, 2014
______________________

MICHAEL J. CUTINO, of Ronkonkoma, New York, pro
se.

KENNETH S. MCLAUGHLIN, JR., Law Offices of
McLaughlin & Associates, P.C., of Aurora, Illinois, for
appellee.
______________________

Before MOORE, REYNA, and TARANTO, Circuit Judges.
Case: 13-1541 Document: 46-2 Page: 1 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 2
PER CURIAM.
Michael J. Cutino appeals pro se from the decision of
the Trademark Trial and Appeal Board (Board) of the
Patent and Trademark Office (PTO) dismissing Mr.
Cutinos opposition to Trademark Application No.
77/325,174 for the mark NIGHTLIFE TELEVISION.
1

For the reasons below, we vacate the Boards decision and
remand for further proceedings.
BACKGROUND
Mr. Cutino owns three federal trademark registra-
tions obtained between 1982 and 1995. Registration No.
1207169 covers the mark NEW YORKS NIGHTLIFE for
Monthly Magazine Dealing Primarily with Things to Do
and See and Places to Go in the State of New York.
Registration No. 1324398 covers the mark LONG
ISLANDS NIGHTLIFE for Monthly Magazine Dealing
Primarily with Things to Do and Places to Go in the Long
Island and Surrounding Areas and Also Featuring Other
Articles of General Interest. Finally, Registration No.
1908411 covers the mark NIGHTLIFE for magazines of
general interest and television programming services.
On August 22, 2008, Mr. Cutino filed a Notice of Op-
position to Application No. 77/325,174 for the mark
NIGHTLIFE TELEVISION. The application, filed in
2007 by Nightlife Media, Inc. (Applicant), sought to
register NIGHTLIFE TELEVISION for the following
services:
Video-on-demand transmission services, Internet
broadcasting services, Broadcasting services via
mobile and handsets, Satellite television broad-
casting, and Television broadcasting.
1
Cutino v. Nightlife Media, Inc., Opposition No.
91186025 (T.T.A.B. Apr. 25, 2013) (Board Decision).

Case: 13-1541 Document: 46-2 Page: 2 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 3
As grounds for opposition, Mr. Cutino asserted likelihood
of confusion under Section 2(d) of the Lanham Act be-
tween Applicants mark and Mr. Cutinos three registered
marks. Mr. Cutino also asserted deceptiveness and false
suggestion under Section 2(a).
Mr. Cutino attached to his Notice of Opposition pho-
tocopies of the registration and renewal certificates for his
three marks. Mr. Cutino also attached printouts from the
PTOs electronic database showing current status and
title, but only for two of his registrations, LONG
ISLANDS NIGHTLIFE and NEW YORKS NIGHTLIFE.
In its answer, Applicant admitted that Mr. Cutino is the
owner of the three marks and that the pleaded registra-
tions identify the goods and services alleged by Mr. Cu-
tino in his opposition. Applicant did not counterclaim for
cancellation of any of the registrations.
Although Mr. Cutino was represented by counsel at
the time he filed his opposition, the record shows that his
counsel withdrew from representation in March 2011, and
Mr. Cutino elected to proceed pro se. Mr. Cutino did not
take any testimony or introduce any evidence during his
testimony period, which was scheduled to close on No-
vember 22, 2011. Mr. Cutino served his pretrial disclo-
sures after the testimony period had closed and the
October 8, 2011, deadline for pretrial disclosures had
passed. Applicant filed a motion to strike as untimely Mr.
Cutinos pretrial disclosures, and a motion to dismiss for
failure to prosecute under Trademark Rule 2.132(a). In
response, Mr. Cutino filed a number of documents and
evidence purporting to support his opposition.
In an order dated May 20, 2012, the Board granted
the motion to strike but denied the motion to dismiss.
The Board found that Mr. Cutinos pretrial disclosures
were untimely and also failed to comply with Trademark
Rule 2.121(e). The Board also found that the materials
submitted by Mr. Cutino after the close of his testimony
Case: 13-1541 Document: 46-2 Page: 3 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 4
period were untimely and otherwise inadmissible. As a
result, the evidence on record supporting Mr. Cutinos
opposition consisted only of the records of his pleaded
registrations. The Board found that, pursuant to Trade-
mark Rule 2.122(d)(1), only the registrations for the
marks LONG ISLANDS NIGHTLIFE and NEW YORKS
NIGHTLIFE were properly introduced. The Board denied
Applicants motion to dismiss, finding that the two regis-
trations were sufficient to make out a prima facie case
with respect to standing and priority.
On July 16 and August 1, 2012, Mr. Cutino submitted
additional documents and evidence. Invoking Trademark
Rule 2.127(a), the Board granted Applicants motions to
strike Mr. Cutinos submissions because Mr. Cutino failed
to respond to the motions to strike. The Board noted that,
even if not stricken, it would decline to consider Mr.
Cutinos filings because they were not accompanied by
certificates of service and they were either late or prema-
ture if intended as evidence or Mr. Cutinos final brief,
respectively.
In its final decision dated April 25, 2013, the Board
dismissed Mr. Cutinos opposition. First, the Board ruled
that Mr. Cutinos NIGHTLIFE registration was not part
of the record because Mr. Cutino failed to submit docu-
ments showing the current status and title of the registra-
tion as required by the Trademark Rules. The Board also
excluded certain submissions made by Mr. Cutino during
December 2012 and January 2013 because they were
untimely, and concluded that the record in the opposition
proceedings consisted solely of: (1) the pleadings; (2) the
file of the opposed application; (3) Mr. Cutinos registra-
tions for the marks LONG ISLANDS NIGHTLIFE and
NEW YORKS NIGHTLIFE; and (4) the deposition of
Applicants owner and founder introduced by Applicant.
Second, the Board found that Mr. Cutino failed to
pursue and waived his claims for deceptiveness and false
Case: 13-1541 Document: 46-2 Page: 4 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 5
suggestion under Section 2(a), because he could not
establish the required elements of either claim based on
the record. Regarding likelihood of confusion, the Board
found that Mr. Cutino had established standing and
priority based on the two properly-introduced registra-
tions.
Proceeding to examine the DuPont
2
factors, the Board
found that the dissimilarities between Mr. Cutinos and
Applicants marks outweigh the similarities. The Board
acknowledged that the terms LONG ISLANDS and NEW
YORKS are disclaimed and are descriptive, but found
that they still make Mr. Cutinos marks look and sound
significantly different than NIGHTLIFE TELEVISION.
Finding that the term NIGHTLIFE is at best suggestive
of the parties goods and services, the Board concluded
that the addition of the descriptive terms LONG
ISLANDS, NEW YORKS and TELEVISION sufficiently
distinguish the parties marks and weigh against finding
likelihood of confusion.
The Board also found that the parties goods and ser-
vices and channels of trade weigh against finding likeli-
hood of confusion. The Board noted that Mr. Cutinos
registrations for LONG ISLANDS NIGHTLIFE and NEW
YORKS NIGHTLIFE cover monthly magazines focused
on particular geographic areas, while Applicant sought to
register its mark for television and other broadcasting
services. Because there was no additional evidence of a
relationship between the goods and services or that their
channels of trade overlap, the Board concluded that these
factors did not favor finding likelihood of confusion.
Given the absence of evidence on the remaining
DuPont factors, the Board found them to be neutral. The
2
In re E.I. DuPont de Nemours & Co., 476 F.2d
1357, 1361 (CCPA 1973).

Case: 13-1541 Document: 46-2 Page: 5 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 6
Board therefore concluded that there is no likelihood of
confusion between Mr. Cutinos and Applicants marks.
The Board reiterated that it could not consider Mr. Cu-
tinos NIGHTLIFE registration, even in the face of Appli-
cants admissions:
While applicant admits in its answer that opposer
owns the mark NIGHTLIFE, Answer 4, that is
as far as applicants admission goes, and because
the registration for this mark is not of record, op-
poser is not entitled to any of the presumptions
which arise out of a registration. In other words,
there is no evidence concerning when opposer
used NIGHTLIFE, whether the mark is still in
use or what goods or services are or were offered
under the mark. Applicants admission is there-
fore not enough for us to consider the
NIGHTLIFE mark in connection with opposers
likelihood of confusion claim.
Board Decision at 8, n.8.
Mr. Cutino timely appealed. We have jurisdiction
pursuant to 28 U.S.C. 1295(a)(4)(B).
DISCUSSION
We review the Boards evidentiary rulings for abuse of
discretion.
3
In this case, we find that the Board abused
its discretion in disregarding Mr. Cutinos NIGHTLIFE
registration. The Boards own procedures and this courts
precedent recognize that an opposers registration will be
deemed to be of record if the applicants answer contains
admissions sufficient to establish the current status of the
3
Crash Dummy Movie, LLC v. Mattel, Inc., 601
F.3d 1387, 1391 (Fed. Cir. 2010).

Case: 13-1541 Document: 46-2 Page: 6 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 7
registration and the plaintiffs ownership of the registra-
tion.
4

Applicants admissions in its answer are sufficient to
treat the NIGHTLIFE registration as being part of the
record. The Notice of Opposition specifically alleged that
Mr. Cutino is the owner of, and would rely on, Registra-
tion No. 1908411 for the mark NIGHTLIFE. Notice of
Opposition at 4, Opp. No. 91186025 (Aug. 22, 2008).
While Applicant purported to admit only that Mr. Cutino
is the owner of the mark NIGHTLIFE, Applicant did not
deny that Mr. Cutino owns the corresponding pleaded
registration. See Answer at 4, Opp. No. 91186025 (Jan.
2, 2009). An answer that fails to deny a portion of an
allegation is deemed admitted as to that portion.
5

Applicants admission regarding ownership not only
establishes current title, but also the current status of the
NIGHTLIFE registration, i.e., that it is active. One
technically does not own a registration that is not in force
and effect.
6
We do not read Applicants denial that the
NIGHTLIFE registration is subsisting as a clear denial
of the current status of the registration, particularly in
view of the identical denial made with respect to Mr.
Cutinos other two registrations for which he attached
records establishing current status. See id. at 57.
Hence, unlike Hewlett-Packard Co. v. Olympus Corp.,
where an admission that the registrations originally
issued to the opposer was insufficient to establish cur-
4
See Tiffany & Co. v. Columbia Indus., Inc. 455
F.2d 582, 585 (CCPA 1972); Trademark Trial and Appeal
Board Manual of Procedure (TBMP) 704.03(b)(1)(A)
Note.
5
See Fed. R. Civ. P. 8(b)(6); TBMP 311.02(a).
6
See Trademark Manual of Examining Procedure
(TMEP) 812.

Case: 13-1541 Document: 46-2 Page: 7 Filed: 08/07/2014
CUTINO v. NIGHTLIFE MEDIA, INC. 8
rent title,
7
here Applicant admitted current ownership
and the active status of the pleaded registrations. The
Board therefore committed legal error in ignoring the
evidentiary effect of Applicants admissions and abused
its discretion in refusing to consider the registration for
the NIGHTLIFE mark.
8

On remand, we direct the Board to consider Mr. Cu-
tinos NIGHLIFE registration and address the likelihood
of confusion between the NIGHTLIFE mark and Appli-
cants mark. Mr. Cutino does not appeal, and therefore
we do not disturb, the Boards other evidentiary rulings.
We also do not address the remaining aspects of the
Boards determination that Mr. Cutino does not challenge,
namely, the likelihood of confusion between Applicants
mark and Mr. Cutinos LONG ISLANDS NIGHTLIFE
and NEW YORKS NIGHTLIFE marks.
VACATED AND REMANDED
COSTS
Each party shall bear its own costs.
7
931 F.2d 1551, 1554 (Fed Cir. 1991).
8
See Tiffany, 455 F.2d at 585 (Board erred in refus-
ing to consider registrations when applicant did not deny
opposers ownership and admitted the existence of the
pleaded registrations).

Case: 13-1541 Document: 46-2 Page: 8 Filed: 08/07/2014
UNITED STAlES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Questions and Answers
Petitions for Panel Rehearing (Fed. Cir. R. 40)
and
Petitions for Hearing or Rehearing En Bane (Fed. Cir. R. 35)
Q. When is a petition for panel rehearing appropriate?
A. Petitions for panel rehearing are rarely considered
meritorious. Consequently, it is easiest to first answer when
a petition for panel rehearing is not appropriate. A petition
for panel rehearing should not be used to reargue issues
already briefed and orally argued. If a party failed to
persuade the court on an issue in the first instance, they do
not get a second chance. This is especially so when the
court has entered a judgment of affirmance without opinion
under Fed. Cir. R. 36, as a disposition of this nature is used
only when the appelianUpetitioner has utterly failed to raise
any issues in the appeal that require an opinion to be
written In support of the court's judgment of affirmance.
Thus, as a usual prerequisite, the court must have filed
an opinion In support of its jUdgment for a petition for panel
rehearing to be appropriate. Counsel seeking panel
rehearing must be able to identify in the court's opinion a
material error of fact or law, the correction of which would
require a different judgment on appeal.
Q. When is a petition for rehearing en bane appropriate?
A En banc decisions are extraordinary occurrences. To
properly answer the question, one must first understand the
responsibility of a three-judge merits panel of the court. The
panel is charged with deciding individual appeals according
to the law of the circuit as established in the court's
precedential opinions. While each merits panel is
empowered to enter precedential opinions, the ultimate duty
of the court en banc is to set forth the law of the Federal
Circuit, which merits panels are obliged to follow.
ThUS, as a usual prerequisite, a merits panel of the court
must have entered a precedential opinion in support of its
judgment for a petition for rehearing en bane to be
appropriate. In addition, the party seeking rehearing en
bane must show that either the merits panel has failed to
follow decisions of the Supreme Court of the United States
or Federal Circuit precedential opinions, or that the
merits panel has followed circuit precedent, which the party
seeks to have overruled by the court en banco
Q. How frequently are petitions for panel rehearing granted
by merits panels or petitions for rehearing en bane granted
by the eourt?
A. The data regarding petitions for panel rehearing since
1982 shows that merits panels granted some relief in only
three percent of the petitions filed. The relief granted usually
involved only minor corrections of factual misstatements,
rarely resulting in a change of outcome in the decision.
En banc petitions have been granted less frequently.
Historically, the court has initiated en banc review in a few
of the appeals decided en bane since 1982.
Q. Is it necessary to have filed either of these petitions
before filing a petition for certiorari in the U. S. Supreme
Court?
A. No. All that is needed is a final judgment of the Court of
Appeals.
Case: 13-1541 Document: 46-3 Page: 1 Filed: 08/07/2014
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
INFORMATJON SHEET
FILING A PETmON FOR A WRIT OF CERTIORARI
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cover, etc.
Number of Copies. Forty copies of a petition must be filed unless the petitioner is proceeding in
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Revised December 16, 1999
Case: 13-1541 Document: 46-4 Page: 1 Filed: 08/07/2014