Dalton v. Honda Motor Co., Ltd. , 425 F. App'x 886 ( 2011 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    MICHAEL DALTON,
    Appellant,
    v.
    HONDA MOTOR CO., LTD.,
    Appellee.
    __________________________
    2011-1077
    __________________________
    Appeal from the United States Patent and Trademark
    Office, Trademark Trial and Appeal Board. (Opposition
    No. 91173105).
    _________________________
    Decided: June 13, 2011
    _________________________
    MICHAEL DALTON, Cincinnati, Ohio, pro se.
    DYAN FINGUERRA-DUCHARME, White & Case, LLP, of
    New York, New York, for appellee.
    __________________________
    Before PROST, MOORE and O’MALLEY, Circuit Judges.
    PER CURIAM.
    DALTON   v. HONDA MOTOR                                   2
    Michael Dalton (“Dalton”) appeals from the final deci-
    sion of the Trademark Trial and Appeal Board (“the
    Board”) sustaining Honda Motor Co., Ltd.’s opposition
    and refusing Dalton’s registration of the mark
    “DEALERDASHBOARD” on grounds that it is merely
    descriptive. Honda Motor Co., Ltd. v. Dalton, 2010 TTAB
    LEXIS 358 (T.T.A.B. Aug. 6, 2010) (“Board Decision”).
    For the reasons explained below, we affirm.
    BACKGROUND
    Dalton has applied to register the mark
    DEALERDASHBOARD for the following International
    Class 35 services:
    providing automotive dealerships managerial in-
    formation concerning their Sales, Service, and
    Parts departments key financial indicators of how
    their dealership is performing via the Internet;
    and providing a web site featuring information
    about automobile dealerships, automobiles, auto-
    motive parts and accessories, at which users can
    link to the retail or wholesale web sites of others.
    Appendix (“A”) 20. Dalton asserted October 5, 1999 as the
    date of first use of the mark in commerce.
    In May 2006, Dalton sent a cease and desist letter to
    American Honda Motor Co., Inc. (“American Honda”),
    demanding      that    it   cease    using   the   mark
    DEALERDASHBOARD on its network. In the letter,
    Dalton informed American Honda that he owned the
    trademark/service mark DEALERDASHBOARD and
    operates the website DealerDashboard.com, which offers
    services to automotive dealerships. According to Dalton,
    it was brought to his attention that American Honda was
    using that same mark “to offer competing service to [its]
    3                                   DALTON   v. HONDA MOTOR
    dealer body.” The record reflects that American Honda is
    a wholly-owned subsidiary of Honda Motor Co., Ltd.
    On September 27, 2006, Honda Motor Co., Ltd.
    (“Honda”) filed a Notice of Opposition on grounds that the
    DEALERDASHBOARD mark “is a generic term, or, at
    best, a merely descriptive term.” A26. Honda explained
    that it is a corporation organized under Japanese law and
    that, through its subsidiaries and affiliates, it “manufac-
    tures, markets and sells, among other products, automo-
    biles, motorcycles, motor scooters and all-terrain vehicles
    throughout the world.” A25.
    In the Notice of Opposition, Honda alleged, among
    other things, that: (1) “dashboard” is a “term of art in the
    Internet industry, denoting a user interface for organizing
    and displaying key information”; (2) it uses the term
    “dealer dashboard” on its internal network, which is
    accessible only to authorized Honda dealers, “to describe a
    tool that presents information to its authorized dealers
    about their sales, service and parts departments”; and
    (3) registration of the DEALERDASHBOARD mark would
    damage Honda because it “may subject [it] to an in-
    fringement suit” for using the “descriptive designations
    “Dealer Dashboard” or “Dashboard.”
    Dalton filed an Answer on January 6, 2007, in which
    he: (1) denied that the DEALERDASHBOARD mark was
    generic; and (2) argued that the Board lacked jurisdiction
    over Honda because it is a foreign corporation organized
    under the laws of Japan. Dalton also claimed that he
    “invested extensive time and resources” making
    DEALERDASHBOARD a “source identifier” and that it
    has become “alternatively distinctive and famous within
    DALTON   v. HONDA MOTOR                                   4
    the automotive industry.” Doc. 8, Answer at 5 (Jan. 6,
    2007). 1
    During the course of the Board proceedings, Honda
    served Dalton with interrogatories and document re-
    quests. When Dalton failed to respond to the discovery
    requests, Honda filed a motion to compel. In response, on
    April 2, 2007, Dalton filed a motion to dismiss, motion for
    sanctions, or in the alternative, motion to strike. In his
    motion, Dalton sought dismissal for failure to state a
    claim and for lack of jurisdiction. He also sought to strike
    Honda’s discovery requests and motion to compel.
    In an order dated February 29, 2008, the Board:
    (1) denied Dalton’s motion to dismiss on grounds that it
    was untimely, since it was filed roughly three months
    after he filed his answer; (2) granted Honda’s motion to
    compel discovery requests; and (3) ordered Dalton to
    provide, without objection, “full and proper responses” to
    the discovery requests within thirty days. Dalton failed to
    comply with the Board’s order, and subsequently sought
    to introduce documents and evidence not produced in
    discovery during his testimony deposition.       Honda ob-
    jected to the use of those documents on grounds that they
    were not previously produced and raised additional objec-
    tions, including hearsay and lack of foundation.
    Honda sought and obtained an extension of time
    which reset its 30-day testimony period to close on Octo-
    ber 27, 2008. As such, Honda’s testimony period opened
    on September 28, 2008 and continued until October 27,
    2008. Notwithstanding this timeframe, Honda conducted
    a trial deposition of Cynthia Mangham on September 16,
    2008. Mangham, the Manager of the Interactive Network
    1    Citations to documents found on the TTAB online
    docket system are identified by docket number, title, date,
    and page number.
    5                                  DALTON   v. HONDA MOTOR
    Marketing and Rollout for American Honda, testified
    that, in 2004, American Honda began using the term
    “dealer dashboard” on its internal network to communi-
    cate “key operating indicators” to automotive dealers.
    Dalton did not participate in Mangham’s testimony
    deposition. Instead, roughly six (6) months after the
    deposition took place – on March 6, 2009 – Dalton filed a
    motion to strike Mangham’s trial testimony on grounds
    that it took place outside the set testimony period. On
    May 27, 2009, the Board denied Dalton’s motion to strike
    as untimely. In reaching this decision, the Board noted
    that,
    [w]hen a testimony deposition is noticed for a date
    prior to the opening of the deposing party’s testi-
    mony period, an adverse party that fails to
    promptly object to the scheduled deposition on the
    ground of untimeliness may be found to have
    waived this ground for objection, because the
    premature scheduling of a deposition is an error
    which can be corrected on seasonable objection.
    Doc. 53, Order Resetting Trial Dates at 2 (May 27, 2009)
    (citing Trademark Trial and Appeal Board Manual of
    Procedure (“TBMP”) § 707.03(a) (2d ed. 2004)). 2
    On November 13, 2009, Honda filed its trial brief on
    the merits. Although he sought and obtained an exten-
    2   While Dalton argues on appeal that the Board
    erred by denying his motion to strike Mangham’s testi-
    mony, we find no error in the Board’s analysis. As the
    Board correctly noted, an objection to a testimony deposi-
    tion “must be raised promptly if the defect is one that can
    be obviated or removed, failing which it is deemed
    waived.” TBMP § 707.03(a). Because Dalton filed his
    motion to strike roughly six months after the testimony
    deposition took place, the Board did not err in finding his
    motion untimely.
    DALTON   v. HONDA MOTOR                                  6
    sion of time in which to respond, Dalton failed to file a
    responsive trial brief. In a decision dated August 6, 2010,
    the Board sustained Honda’s opposition to registration of
    the DEALERDASHBOARD mark on grounds of mere
    descriptiveness. The Board found that: (1) Honda had
    standing to oppose Dalton’s mark on behalf of its wholly-
    owned subsidiary; (2) DEALERDASHBOARD merely
    describes the services provided: “Internet-based informa-
    tion regarding sales, service, and inventory or parts to
    automobile dealerships”; (3) Honda failed to show that
    DEALERDASHBOARD is a generic term; (4) Dalton did
    not plead acquired distinctiveness, and there is no evi-
    dence to support such a claim. The Board also sustained
    Honda’s evidentiary objections and noted that, even if the
    excluded documents were considered, the outcome would
    be the same.
    Dalton timely appealed to this court. We have juris-
    diction pursuant to 
    28 U.S.C. § 1295
    (a)(4)(B).
    STANDARD OF REVIEW
    We review the Board’s legal conclusions de novo and
    its factual findings for substantial evidence. In re Pacer
    Tech., 
    338 F.3d 1348
    , 1349 (Fed. Cir. 2003). Substantial
    evidence is “‘more than a mere scintilla’ and ‘such rele-
    vant evidence as a reasonable mind would accept as
    adequate’ to support a conclusion.” 
    Id.
     (quoting Consol.
    Edison v. NLRB, 
    305 U.S. 197
    , 229 (1938)).
    DISCUSSION
    Dalton’s primary arguments on appeal fall into three
    categories. He argues that: (1) as a foreign corporation,
    Honda lacked standing to file an opposition on behalf of
    Honda America; (2) the Board erred when it found that
    the mark DEALERDASHBOARD was merely descriptive;
    7                                  DALTON   v. HONDA MOTOR
    and (3) the Board erred when it excluded certain evidence
    from his testimony deposition.
    In response, Honda submits that: (1) it has standing
    to file suit on behalf of American Honda because Ameri-
    can Honda is a wholly-owned subsidiary; (2) the term
    DEALERDASHBOARD is merely descriptive of the
    identified services; and (3) the Board properly sustained
    Honda’s objection to certain documents on grounds that
    they were not previously produced during discovery in
    accordance with the Board’s order compelling discovery
    responses.
    For the reasons set forth below, we find Honda’s ar-
    guments well-taken. Because we find no error in the
    Board’s decision, we affirm.
    I.
    Under Article III of the United States Constitution, a
    plaintiff must show a “case or controversy” between the
    parties to establish standing. Ritchie v. Simpson, 
    170 F.3d 1092
    , 1094 (Fed. Cir. 1999). The “case” and “contro-
    versy” restrictions do not, however, apply to matters
    before administrative agencies. 
    Id.
     Instead, for an
    agency such as the PTO, standing is conferred by statute.
    Here, standing is conferred by Section 13 of the Lanham
    Act, which provides, in pertinent part, that “[a]ny person
    who believes that he would be damaged by the registra-
    tion of a mark . . . may, upon payment of the prescribed
    fee, file an opposition in the Patent and Trademark Office,
    stating the grounds therefor.” 
    15 U.S.C. § 1063
    (a). The
    purpose of the standing requirement is “to prevent litiga-
    tion where there is no real controversy between the par-
    ties, where a plaintiff, petitioner or opposer, is no more
    than an intermeddler.” Lipton Indus., Inc. v. Ralston
    Purina Co., 
    670 F.2d 1024
    , 1028-29 (C.C.P.A. 1982).
    DALTON   v. HONDA MOTOR                                   8
    In addition to meeting the broad requirements of § 13,
    an opposer must satisfy two judicially-created standing
    requirements. Ritchie, 
    170 F.3d at 1095
    . Specifically, an
    opposer has standing under § 13 if it can show: (1) a “real
    interest” in the proceeding; and (2) a “reasonable basis”
    for believing that it would suffer damage if the mark is
    registered. Id. Under the “real interest” requirement, an
    opposer must have “a legitimate personal interest in the
    opposition.” Id. With respect to the second inquiry, the
    opposer’s belief of damage “must have a reasonable basis
    in fact.” Id. at 1098 (citation omitted).
    A parent company has standing to file an opposition
    on behalf of its wholly-owned subsidiary because it can
    “reasonably believe that damage to the subsidiary will
    naturally lead to financial injury to itself.” See Universal
    Oil Prods. Co. v. Rexall Drug & Chem. Co., 
    463 F.2d 1122
    ,
    1124 (C.C.P.A. 1972) (finding that the parent corporation
    had a “real interest” in the proceeding and thus “standing
    to institute and maintain it”); see also Jewelers Vigilance
    Comm., Inc. v. Ullenberg Corp., 
    823 F.2d 490
    , 493 (Fed.
    Cir. 1987) (citing Universal Oil for the proposition that “a
    parent corporation has standing to oppose on the basis of
    a mark owned and controlled by its subsidiary”); Lipton,
    670 F.2d at 1029 (noting that the court has found stand-
    ing to protect a subsidiary’s mark). The Board similarly
    has found that a parent company of a wholly-owned
    subsidiary has a “sufficient commercial interest” to satisfy
    standing requirements. See British-American Tobacco Co.
    v. Philip Morris Inc., 
    55 U.S.P.Q.2d 1585
    , 1591 (T.T.A.B.
    2000) (“Because petitioners allege that TISA is BATCo’s
    wholly owned subsidiary, we find that petitioners have
    alleged a sufficient commercial interest by BATCo in this
    proceeding for us to conclude that the petition contains an
    acceptable assertion of BATCo’s standing.”); cf. Target
    Brands, Inc. v. Hughes, 
    85 U.S.P.Q.2d 1676
    , 1679
    9                                  DALTON   v. HONDA MOTOR
    (T.T.A.B. 2007) (finding that a wholly-owned subsidiary
    had standing to oppose registration on behalf of its parent
    corporation because the parties were in privity and any
    harm to the parent would harm the subsidiary).
    Dalton argues that Honda lacked standing to oppose
    registration because it “is a foreign entity and applicant
    only made cease and desist demands on domestic organi-
    zations.” 3 Appellant Informal Brief at 6. In response,
    Honda argues that it has a real interest and a reasonable
    basis for believing that it would be damaged if
    DEALERDASHBOARD was registered as a mark. Spe-
    cifically, Honda argues that its wholly-owned subsidiary
    American Honda: (1) uses the phrase “dealer dashboard”
    to identify key information on its dealer interactive net-
    work; and (2) received a cease and desist letter from
    Dalton.
    We agree that Honda sufficiently demonstrated its
    standing to file an opposition on behalf of American
    3    Dalton also argues that, as a foreign entity,
    Honda was shielded from discovery. Informal Brief at 6.
    To the extent Dalton is claiming that he sought discovery
    from Honda and was denied, there is no evidence support-
    ing that argument in the record. In any event, there are
    mechanisms for obtaining discovery from a foreign entity.
    See 
    37 C.F.R. § 2.120
    (c)(1) (“The discovery deposition of a
    natural person residing in a foreign country who is . . . a
    person designated under Rule 30(b)(6) . . . shall, if taken
    in a foreign country, be taken in the manner prescribed by
    § 2.124 unless the Trademark Trial and Appeal Board,
    upon motion for good cause, orders or the parties stipu-
    late, that the deposition be taken by oral examination.”);
    see also 
    37 C.F.R. § 2.123
    (a)(2) (“A testimonial deposition
    taken in a foreign country shall be taken by deposition
    upon written questions as provided by § 2.124, unless the
    Board, upon motion for good cause, orders that the deposi-
    tion be taken by oral examination, or the parties so stipu-
    late.”).
    DALTON   v. HONDA MOTOR                                  10
    Honda. Although the Board did not specifically address
    the parent-subsidiary relationship, it applied the correct
    test and found that Honda demonstrated a real interest
    sufficient to give it standing to oppose Dalton’s applica-
    tion. See Board Decision, 2010 TTAB LEXIS 358 at *8-10.
    Because American Honda is Honda’s wholly-owned sub-
    sidiary, we find that Honda has alleged a “real interest”
    in the proceeding, including a reasonable belief that harm
    to American Honda would cause harm to Honda. See
    Universal Oil, 463 F.2d at 1124; see also British-American
    Tobacco, 55 U.S.P.Q.2d at 1591. Accordingly, the Board
    did not err in finding that Honda had standing to oppose
    Dalton’s registration application.
    II.
    Dalton next argues that the Board erred when it:
    (1) found that the mark DEALERDASHBOARD was
    merely descriptive; and (2) failed to consider third-party
    registrations that contain the term DEALER and/or
    DASHBOARD. 4 For the reasons discussed below, we find
    4    Dalton also argues that the Board erred when it
    concluded that he failed to show acquired distinctiveness.
    In response, Honda argues that, because Dalton did not
    raise acquired distinctiveness below, he waived his right
    to assert it on appeal. As the Board correctly noted, an
    applicant bears the burden of establishing acquired
    distinctiveness. See Yamaha Int’l Corp v. Hoshino Gakki
    Co., Ltd., 
    840 F.2d 1572
    , 1576 (Fed. Cir. 1988). Although,
    as Honda points out, Dalton did not file a trial brief with
    the Board, the Board specifically addressed acquired
    distinctiveness and found that: (1) Dalton’s application to
    register the mark DEALERDASHBOARD did not include
    a claim of acquired distinctiveness; (2) he failed to assert
    acquired distinctiveness in his answer to the Notice of
    Opposition; and (3) even if statements in his answer could
    be construed as a claim of acquired distinctiveness, he
    submitted no evidentiary support for such a claim. Re-
    11                                  DALTON   v. HONDA MOTOR
    that the Board’s descriptiveness determination was
    supported by substantial evidence.
    A. Merely Descriptive
    A mark is merely descriptive “if it immediately con-
    veys knowledge of a quality, feature, function, or charac-
    teristic of the goods or services with which it is used.” In
    re Bayer Aktiengesellschaft, 
    488 F.3d 960
    , 963 (Fed. Cir.
    2007) (“Bayer”) (citing In re Gyulay, 
    820 F.2d 1216
    , 1217
    (Fed. Cir. 1987)). A mark may be merely descriptive
    “even if it does not describe the ‘full scope and extent’ of
    the applicant’s goods or services.” In re Oppedahl &
    Larson LLP, 
    373 F.3d 1171
    , 1173 (Fed. Cir. 2004) (cita-
    tion     omitted).       It    is   well-established    that
    “[d]escriptiveness of a mark is not considered in the
    abstract.” Bayer, 
    488 F.3d at 963-64
    . Instead, the mark
    must be “considered in relation to the particular goods for
    which registration is sought, the context in which it is
    being used, and the possible significance that the term
    would have to the average purchaser of the goods because
    of the manner of its use or intended use.” 
    Id. at 964
    .
    Stated differently, “[t]he question is not whether someone
    presented with only the mark could guess what the goods
    or services are. Rather, the question is whether someone
    who knows what the goods or services are will understand
    the mark to convey information about them.” In re Tower
    Tech Inc., 
    64 U.S.P.Q.2d 1314
    , 1316-17 (T.T.A.B. 2002).
    Evidence that a term is merely descriptive “may be
    obtained from any competent source, such as dictionaries,
    newspapers, or surveys.” Bayer, 
    488 F.3d at 964
     (quoting
    In re Bed & Breakfast Registry, 
    791 F.2d 157
    , 160 (Fed.
    Cir. 1986)). A determination that a mark is merely de-
    scriptive is a factual finding that this court reviews for
    gardless of whether Dalton can raise this issue on appeal,
    we find no error in the Board’s analysis.
    DALTON   v. HONDA MOTOR                                  12
    substantial evidence. Bayer, 
    488 F.3d at 964
    . For the
    reasons that follow, we conclude that the Board’s factual
    findings were supported by substantial evidence.
    First, the Board looked to the dictionary definitions in
    the record which defined the term “dealer” as “one en-
    gaged in buying and selling.” Board Decision, 2010 TTAB
    LEXIS 358 at *11. The Board then considered documents
    in the record – including printed publications introduced
    as exhibits during Dalton’s discovery deposition – to
    determine the meaning of the term “dashboard.” Honda
    submitted evidence including dozens of examples of third
    parties who use the term “dealer dashboard” or
    “dashboard” to describe an Internet-based system that
    provides dealers with key performance indicators. As the
    Board noted, the record includes the following representa-
    tive examples:
    •    Denon Dealer Dashboard: “The Dealer
    Dashboard is the easiest way for Denon
    dealers to get the latest information on
    Denon products, events, company infor-
    mation and more. As a Denon dealer, the
    Dashboard provides you with all kinds of
    product related items such as downloads,
    Images, sell sheets, and more.” A168.
    •    GoalLine Solutions: “Dealer Dashboard
    Key Performance Indicators (KPIs) pro-
    vide the dealer and service manager with
    visibility to the crucial numbers that drive
    the performance of the service [sic] De-
    partment. You have the ability to set tar-
    get goals for the average labor dollars per
    repair order, one line work order percent-
    ages and average hours per repair order
    and see the results by year, month, week
    13                                   DALTON   v. HONDA MOTOR
    or day. By comparing it to the prior year’s
    results, you have visibility to improve-
    ments in your department and more im-
    portantly areas of concern. By using our
    secure data extraction portal we provide
    daily updating on Labor sales, Repair or-
    der counts and total hours sold for all
    sales categories.” A176.
    •   Using Siebel Dealer Dashboards (Dealer):
    “Siebel Dealer provides dealer employees
    with dashboards that allow them to view
    the most important information that they
    need for their work on one screen.” A165.
    Based on the third-party examples provided, and other
    evidence in the record, the Board found that the term
    “dashboard” “possesses a recognized meaning in the field
    of Internet-based business information tracking and
    presentation.” Board Decision, 2010 TTAB LEXIS 358 at
    *16.
    The Board further found that the terms DEALER and
    DASHBOARD have descriptive significance when used in
    connection with the services identified in Dalton’s appli-
    cation. Specifically, the Board found that a DEALER
    DASHBOARD “is the graphical display of sales, service
    and other information relating to businesses engaged in
    buying and selling goods, particularly automobiles.” 
    Id.
    The Board concluded that DEALERDASHBOARD
    “merely describes, without conjecture or speculation, a
    significant characteristic or feature of applicant’s services,
    namely, that they provide Internet-based information
    regarding sales, service, and inventory or parts to auto-
    mobile dealerships.” 
    Id.
    As Honda correctly argues, although the combination
    of two descriptive words may, in some instances, create a
    DALTON   v. HONDA MOTOR                                 14
    distinctive mark, the combination of the two terms at
    issue here “does not diminish the common descriptive
    significance    of  Applicant’s    mark:     A    DEALER
    DASHBOARD is a dashboard for dealers.” Appellee Brief
    at 20. See In re Petroglyph Games, Inc., 
    91 U.S.P.Q.2d 1332
    , 1341 (T.T.A.B. 2009) (finding that, “because the
    combination of the terms does not result in a composite
    that alters the meaning of either of the elements, refusal
    on the ground of descriptiveness is appropriate”); In re
    Nat’l Shooting Sports Foundation, Inc., 
    219 U.S.P.Q. 1018
    , 1020 (T.T.A.B. 1983) (internal citations omitted)
    (“Combinations of merely descriptive components have
    been found registrable if the juxtaposition of the words is
    inventive or evokes a unique commercial impression, or if
    the term has a bizarre or incongruous meaning as applied
    to the goods.”). Dalton does not argue that the combina-
    tion of terms alters their meaning, and, even if he did,
    there is no evidence in the record to support that argu-
    ment. 5
    5     Dalton argues that there was no evidence that
    DEALERDASHBOARD was merely descriptive when he
    filed his application for registration in 2003. Informal
    Brief at 5. In response, Honda argues that, by 2003, the
    terms DEALER and DASHBOARD were descriptive “in
    connection with the applied-for services.” Appellee Brief
    at 19. According to Honda, the term “dashboard” was
    “commonly used to describe the presentation of manage-
    rial information and key financial indicators to businesses
    via the Internet well before 2003.” 
    Id.
     In support of this
    argument, Honda points to a printed publication in the
    record entitled Information Dashboard Design: The Effec-
    tive Visual Communication of Data, which discusses
    companies’ use of the term “dashboard” at least as early
    as 2003. Honda further argues that, to the extent Dalton
    claims to be the “first user” of DEALERDASHBOARD,
    there is no supporting evidence to that effect in the re-
    cord. Even if there was, moreover, the “fact that an
    15                                 DALTON   v. HONDA MOTOR
    We find that substantial evidence supports the
    Board’s decision that DEALERDASHBOARD is merely
    descriptive. The dictionary definitions in the record,
    coupled with evidence of third parties that use the term
    “dealer dashboard” to describe services that are similar to
    those identified in Dalton’s application, support the
    Board’s descriptiveness finding. Accordingly, we find no
    error in the Board’s decision.
    As the Board recognized in its decision, Dalton’s ap-
    plication to register the mark DEALERDASHBOARD did
    not include a claim of acquired distinctiveness under
    Section 2(f). Nor did Dalton specifically assert acquired
    distinctiveness in his answer to the Notice of Opposition.
    Instead, Dalton merely alleged that his “exclusive and
    continuous use” of the mark DEALERDASHBOARD
    began in October 1999. Doc. 8, Answer at 1 (Jan. 6, 2007).
    He also claimed that he “invested extensive time and
    resources” making DEALERDASHBOARD a “source
    identifier” that has become “alternatively distinctive and
    famous within the automotive industry.” 
    Id. at 5
    . The
    Board found that, even if Dalton’s statements in his
    answer were construed as a claim of acquired distinctive-
    ness, he submitted no evidentiary support for such a
    claim. We agree. Because Dalton failed to establish that
    DEALERDASHBOARD acquired secondary meaning or
    distinctiveness “in the minds of the public,” we find no
    applicant may be the first and only user of a merely
    descriptive or generic designation does not justify regis-
    tration if the only significance conveyed by the term is
    merely descriptive.” Trademark Manual of Examining
    Procedure § 1209.03(c) (7th ed. 2010). Because we find
    that the Board’s descriptiveness determination was
    supported by substantial evidence, Dalton’s unsupported
    arguments lack merit.
    DALTON   v. HONDA MOTOR                                 16
    error in the Board’s decision. See Dial-A-Mattress, 240
    F.3d at 1347.
    B. Third-Party Registrations
    Dalton next argues that the Board erred by not con-
    sidering evidence of third-party registrations that include
    the term DEALER and/or DASHBOARD. This argument
    is without merit.
    It is well-established that third-party registrations
    “are not conclusive on the question of descriptiveness.” In
    re Scholastic Testing Serv., Inc., 
    196 U.S.P.Q. 517
    , 519
    (T.T.A.B. 1977) (disregarding third-party registrations
    including the term “SCHOLASTIC” on grounds that they
    did not involve the services set forth in the application
    before the Board). Even if there are third-party registra-
    tions using similar words, the Board “must decide each
    case on its own merits.” In re Nett Designs, Inc., 
    236 F.3d 1339
    , 1342 (Fed. Cir. 2001); see also In re Rodale Inc., 
    80 U.S.P.Q.2d 1696
    , 1700 (T.T.A.B. 2006) (“Although consis-
    tency in examination is a goal of the Office, the decisions
    of previous Trademark Examining Attorneys are not
    binding on us, and we must decide each case based on the
    evidence presented in the record before us.”). Accordingly,
    a merely descriptive mark does not qualify for registra-
    tion simply because other similar marks appear on the
    register. See Nett Designs, 
    236 F.3d at 1342
     (finding that
    prior registrations of marks including the term
    ULTIMATE “do not conclusively rebut the Board’s finding
    that ULTIMATE is descriptive in the context of this
    mark”).
    On appeal, Dalton argues that, because the Board
    previously registered the mark “Banker Dashboard,” it
    should “be consistent” and find that “DealerDashboard is
    a registerable mark.” Informal Brief at 6. Although
    “Banker Dashboard” and “DealerDashboard” both contain
    17                                   DALTON   v. HONDA MOTOR
    the term “Dashboard,” this alone is insufficient to rebut
    the Board’s decision that DEALERDASHBOARD is
    merely descriptive in the context of the identified services.
    See Nett Designs, 
    236 F.3d at 1342
    . Specifically, the
    Board found that the term DEALERDASHBOARD “is
    recognized and used by numerous third parties to describe
    Internet-based goods and services that are used to provide
    such information.” Board Decision, 2010 TTAB LEXIS
    358 at *16-17. Because the Board properly assessed the
    mark on its merits in the context of the services involved,
    we find no error in the Board’s analysis.
    III.
    Finally, turning to the Board’s evidentiary rulings,
    Dalton argues that the Board erred when it sustained
    Honda’s objections to certain documents he sought to
    introduce during his testimony deposition. In response,
    Honda argues that the Board properly struck the docu-
    ments from the record because they were not produced in
    accordance with the Board’s discovery order. We agree.
    This court reviews evidentiary rulings for abuse of
    discretion. Crash Dummy Movie, LLC v. Mattel, Inc., 
    601 F.3d 1387
    , 1390 (Fed. Cir. 2010) (citing Chen v. Bouchard,
    
    347 F.3d 1299
    , 1307 (Fed. Cir. 2003)). We will reverse
    only if the Board’s evidentiary ruling was: (1) “clearly
    unreasonable, arbitrary, or fanciful”; (2) “based on an
    erroneous conclusion[] of law”; (3) premised on “clearly
    erroneous findings of fact”; or (4) the record “contains no
    evidence on which the Board could rationally base its
    decision.” 
    Id. at 1390-91
    .
    As noted, Honda served discovery requests on Dalton,
    and, when Dalton failed to respond, Honda filed a motion
    to compel production. In an order dated February 29,
    2008, the Board ordered Dalton to provide, without objec-
    tion, “full and proper responses” to the discovery requests
    DALTON   v. HONDA MOTOR                                  18
    within thirty days. In its requests for production, Honda
    sought, among other things, “[a]ll exhibits that Applicant
    will introduce during any witness’s deposition or testi-
    mony” and “[a]ll exhibits that Applicant will rely on, refer
    to, or introduce during the testimony period in this pro-
    ceeding.” A72. According to Honda, Dalton “produced
    only a limited set of materials” in response to these re-
    quests. During Dalton’s testimony deposition, however,
    he sought to introduce numerous documents that were not
    included in his prior production. Honda objected to these
    documents on grounds that they were not produced dur-
    ing the discovery period, and, in its trial brief on the
    merits, Honda asked the Board to strike the documents
    from the record.
    The Board sustained Honda’s objections and excluded
    the documents at issue on grounds that “a party may not
    rely at trial upon documents that were not produced in
    response to written discovery requests.” Board Decision,
    2010 TTAB LEXIS 358 at *6. In reaching this decision,
    the Board cited prior instances where it excluded evidence
    on grounds that it had not been produced during discov-
    ery. See Shoe Factory Supplies Co. v. Thermal Eng’g Co.,
    
    207 U.S.P.Q. 517
    , 519 n.1 (T.T.A.B. 1980) (“[O]pposer is
    correct in its contention that a party may not properly
    introduce a document in evidence in its behalf after
    having refused to make it available to an adverse party
    seeking discovery thereof.”); see also Nat’l Aeronautics &
    Space Admin. v. Bully Hill Vineyards, Inc., 
    3 U.S.P.Q.2d 1671
    , 1672 n.3 (T.T.A.B. 1987) (excluding exhibits that
    were requested during discovery “but which were not
    produced until opposer sought to introduce them during
    trial”). The Board noted, moreover, that, even if it had
    considered the documents, “the outcome would be the
    same.” Board Decision, 2010 TTAB LEXIS 358 at *6, n.9.
    19                                 DALTON   v. HONDA MOTOR
    We find no error in the Board’s decision to exclude
    documents which were requested during discovery but
    were introduced for the first time during Dalton’s testi-
    mony deposition. Because the Board specifically indicated
    that the excluded evidence had no bearing on the outcome
    of the proceeding, moreover, Dalton cannot show that
    consideration of that evidence would have led to a differ-
    ent result. Accordingly, we affirm the Board’s evidentiary
    rulings.
    CONCLUSION
    For the foregoing reasons, and because we find that
    Dalton’s remaining arguments are without merit, we
    affirm the Board’s final decision.
    AFFIRMED
    COSTS
    No costs.