dissenting.
I respectfully disagree with the majority opinion. The board’s decision correctly assesses the legal issues and satisfies the equities in the case.
Appellant-registrant begins and ends his brief by emphasizing the two-year nonuse requirement for statutory abandonment of a registered mark. 15 USC 1064. This requirement, appellant argues, has not been proven by appellee in accordance with the pleadings. However, a review of the record indicates that the evidence does prove a prima facie case of abandonment by nonuse to which there was no rebuttal. Appellant, not having objected below to the admission of the damaging evidence, now raises an objection before us.
The record does support the following facts. On October 10, 1973, three-and-one half months after the complaint was filed, appellee directed an interrogatory to appellant. Part (a) of the interrogatory requested dates on which the appellant’s mark was used in lawfully regulatable commerce in the United States. The answer, given by appellant on June 23, 1975, included a crucial piece of information, the most recent date on which appellant used the mark in commerce — July 12, 1973. This fact brings into focus the precarious condition of the mark, that the mark had not been used for a consecutive one year and forty-nine weeks. Having answered the interrogatory, appellant came under a duty imposed by Fed.R.Civ.P. 26(e)(2) (cited in the majority opinion) to update the answer if warranted by additional information he may have received. Appellant’s failure to file an *336amendment left only one conclusion to be drawn with respect to use of the mark, that the last date of use was July 12, 1973. Believing he could rely on the answer, ap-pellee filed a notice of reliance as required by 37 CFR 2.120(b) to make the answer part of the evidence. The notice was filed on July 30, 1975, within appellee’s testimony period and after two years of nonuse had run. At this point in the proceedings, ap-pellee had established a prima facie case of abandonment and the burden shifted to appellant to show intent not to abandon.
Appellant’s testimony period closed February 26, 1976, without any rebuttal of the prima facie case. Appellant concluded incorrectly that he could sit back, wait out his testimony period, and start with a clean slate at the appellate level. There he would argue that the evidence does not prove non-use prior to the date the complaint was filed. Rule 15(b), Fed.R.Civ.P., however, provides in part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion. of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
The complaint clearly set forth the theory of the case that the mark in question was in nonuse for a period of two consecutive years. Evidence on this issue was admitted without objection from appellant. Regardless of the defects which appellant now alleges, the abandonment issue was properly tried. By operation of Rule 15(b), the abandonment issue, unrestricted by the filing date, was tried by implied consent of the parties. Appellant had notice of the issue as tried. Notwithstanding Rule 15(b), however, appellant’s tactics are of no avail. His mark was in jeopardy from the date of last use, July 12, 1973, and the pending litigation did not stop the two years from running against it.
An analogous situation is found in In re Beatrice Foods Co., 429 F.2d 466, 57 CCPA 1302, 166 USPQ 431 (1970). In that ease, the issue of registrability in a concurrent use proceeding was decided on facts as they existed at the close of the testimony period. Our rule permitting a party to show facts which existed subsequent to the filing of the complaint is based upon the dynamic nature of trade-mark rights. This rule should be applied in the case presently under consideration. That the two years had run against the mark subsequent to the date the complaint was filed is irrelevant.
Appellant’s failure to rebut the evidence of abandonment coupled with the fact that appellant’s annual sales in the United States were only twenty dollars make this case a sharp contrast to Miller Brewing Co. v. Oland’s Breweries, 548 F.2d 349, 192 USPQ 266 (Cust. & Pat.App.1976), and Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 58 CCPA 1172, 169 USPQ 590 (1971). In both of these cases, the court considered evidence which rebutted prima facie abandonment, and the court found nonabandonment. Significant facts in each case were that the respective marks had been strong prior to the period of nonuse and that the nonuse had been caused by unavoidable economic circumstances.
To conclude, appellant neither preserved his objections below in accordance with the FRCP nor attempted to rebut appellee’s prima facie case of abandonment. He now asks us to put on blinders as we review the evidence on record. The equities of the case do not favor a party who has not only circumvented the FRCP, but also failed to present rebuttal evidence to carry his burden in the case. His appeal must fail. For the reasons stated above, I would affirm the board’s decision that appellant’s mark is abandoned.