IP Law Daily, TRADEMARK—T.T.A.B.: Cancellation of ‘Hard Work Pays Off’ mark for apparel granted for lack of priority, (Sep 17, 2025)

By Kevin M. Finson, J.D.

Registration for a mark used in clothing was cancelled due to the parties’ agreement that there was a likelihood of confusion and the petitioner showing entitlement to an earlier priority date.

Mathew E. Fraser, a CrossFit athlete, was entitled to cancellation of registrants’ “Hard Work Pays Off” mark in connection with clothing, the Trademark Trial and Appeal Board has held. The parties agreed that there was a likelihood of confusion and that the Fraser showed commercial use of the mark “HWPO” prior to the registrant’s application date (Fraser v. Jackson, No. 92081235 (T.T.A.B. Sept. 11, 2025)).

Maurice Jackson III and Enos Watts, a rap artist (collectively, Watts) were the owners of a registration for a design mark containing the words “Hard Work Pays Off” for use with “Clothing namely, shirts, pants, jackets, hats, t-shirts, jerseys, shorts, tracksuits, socks, underwear, hoodies” in International Class 25. The registration was issued January 21, 2020, based on an application filed on September 19, 2018, under Section 1(b). The statement of use alleged a date of first use of September 19, 2018, and a first use in commerce date of January 1, 2019.

Mathew E. Fraser, a CrossFit athlete, petitioned to cancel the registration on the ground of likelihood of confusion with his common law rights in a “HWPO” mark used with “Athletic footwear; athletic footwear for fitness training; Athletic shoes” and his pending application to register the HWPO mark which was refused due to Watts’ registration. Watts did not dispute that a likelihood of confusion existed, so the Board considered only which party had priority.

Priority. Watts sought to rely on a priority date of January 2018 date for apparel, based on testimony of use of the words in question on apparel since 2011 and the registered design mark itself since January 2018. A party may seek to rely in a proceeding on first use dates earlier than the first use dates stated in its registration, but must prove those earlier first use dates by clear and convincing evidence. The Board found that the documentary evidence supported Watt’s priority date of January 25, 2018, for t-shirts bearing the registered mark.

Fraser stated that his first use and first use in commerce of the HWPO mark was “at least as early as June 5, 2018, but his testimony and evidence also indicated his prior use of the HWPO mark on athletic shoes in 2016 through a contract with Nike, including for HWPO Mat Fraser/Nike Metcon shoes. The evidence showed "sales figures [for the shoes] reaching back to at least one year prior to the Respondents’ alleged date of first use," the Board said.

The Board noted that Watts chose not to cross-examine Fraser on this issue or on the accompanying exhibits. Accordingly, the Board found that Fraser was entitled to a priority date of November 1, 2016, which was prior to Watts’s January 25, 2018 priority date for t-shirts.

Finding that Fraser proved its priority by a preponderance of the evidence, the Board granted the petition to cancel.

The Case is Cancellation No. 92081235.

Judge: Goodman, C.

Attorneys: Albert Bordas (Albert Bordas, P.A.) for Mathew E. Fraser. Rexford Brabson (T-Rex Law, PC) for Maurice Jackson, III, and Enos Watts.

Cases: Trademark USPTO