Two Gage Trademark Proceedings, One Federal-Register Picture

Post-judgment status of TTAB 91278331 and the May 11, 2026 SOU deadline on Serial 87695693

LAW Intelligence Research Division · LAW Intelligence 2(8) · 2026

Public corpus release: this markdown is allowlisted for public distribution and excludes private graph inventory counts.

The Collapse of the Gage Growth Trademark Position: 91278331 Default, the May 11 SOU Deadline, and the Federal-Register Endgame for Serial 87695693

Abstract

The corporate trademark position assembled around "Gage Cannabis Co." — formed 2018 by Michael Hermiz and Rami Reda, routed through Wolverine Partners Corp. into Gage Growth Corp., acquired by TerrAscend Corp. in a 2021 transaction valued at approximately $545 million, and written down to $0 in TerrAscend's FY2025 Form 10-K — has now lost its principal federal vehicle. On May 6, 2026, the Trademark Trial and Appeal Board entered final judgment with prejudice against Gage Growth Corp. in Opposition No. 91278331 for failure to prosecute under TTAB Trademark Rule 2.128(a)(3), after the Opposer let the show-cause deadline pass without filing a brief. The remaining federal-register asset in the corporate chain is Serial 87695693 — an intent-to-use application covering seven International Classes of direct medical-marijuana services. Its Notice of Allowance issued November 11, 2025; the Section 1(b) Statement of Use deadline is May 11, 2026, forty-eight hours from the publication of this paper. As of the TSDR snapshot captured May 9, 2026, no SOU is on file — and the registrant's parent has publicly disclosed the August 2025 closure of all twenty Michigan dispensaries, the termination of approximately 250 employees, and the complete impairment of the acquired Gage trademark. The applicant's three options at the deadline — file an SOU it cannot factually support, file an extension that admits ongoing nonuse, or let the application abandon by operation of law — converge on the same federal-register endpoint over a horizon of zero to thirty months. Gage Green Group's three pending applications (Serials 90324487, 90746550, 97251818), against which the corporate Opposer's challenge has now been finally dismissed with prejudice, return to ordinary USPTO examination. This paper documents the collapse, the contradictions in the underlying corporate record, and the deadline. No legal conclusions are asserted. The record is assembled for determination by the appropriate authorities and for public tracking.

Introduction

This paper documents a collapse. The corporate position built around the appropriated "Gage Cannabis Co." brand — the position that prior papers in this series have traced through its successive layers (Paper 016 on the two-brand history and the $545 million transaction; Paper 017 on the lawfare apparatus deployed across two TTAB proceedings; Paper 018 on the extractive capital chain from Constellation Brands through Canopy Growth into Gage Growth Corp. into TerrAscend) — is in its terminal procedural phase.

The collapse is documented in four contemporaneous pieces of public record:

One. On May 6, 2026, the Trademark Trial and Appeal Board entered final judgment with prejudice against Gage Growth Corp. in Opposition No. 91278331. The judgment was procedural, under TTAB Trademark Rule 2.128(a)(3), entered after the Opposer failed to file a brief in response to a March 3, 2026 show-cause order. The opposition was the corporate chain's last remaining federal-trademark vehicle to challenge Gage Green Group's three pending applications. It is over.

Two. Gage Growth Corp.'s sole surviving federal trademark application — Serial No. 87695693, the GAGE mark across seven International Classes of direct medical-marijuana services — received a Notice of Allowance on November 11, 2025. The application is on a Section 1(b) intent-to-use basis. It has no claim of actual use in commerce. To register, the applicant must produce, within six months of the NOA, either a verified Statement of Use supported by a specimen of actual lawful use in commerce or a Request for Extension of Time. The deadline is May 11, 2026. As of TSDR capture on May 9, 2026 at 20:35:14 EDT, no SOU is on file.

Three. The applicant's parent, TerrAscend Corp. (OTC: TSNDF), disclosed in its FY2025 Form 10-K (filed March 12, 2026) the complete exit from the Michigan cannabis market in August 2025 — twenty dispensary closures, approximately 250 employee terminations, $167.7 million cumulative operating losses, and a 100 percent impairment of the acquired Gage trademark intangible to $0. The structural commercial-use foundation that would be required to verify a Statement of Use on the seven International Classes claimed in Serial 87695693 — physician referral services, wellness counselling, medical-cannabis bulletin boards, medical-marijuana educational services, websites about medical cannabis — is not being provided by Gage Growth Corp. or any disclosed affiliate. The disclosure is not in dispute; it is the registrant's own sworn SEC filing.

Four. Gage Green Group's three pending applications — Serials 90324487 (GAGE GREEN GROUP, Class 25), 90746550 (GAGE, Class 3 hemp-derived topicals + Class 25 + Class 34 + Class 35), and 97251818 (GAGE, multi-class including hemp-derived goods, clothing, publications, and information services) — have cleared the federal-register obstacle that the corporate chain spent six years and an estimated three to ten million dollars in legal fees trying to maintain. Serial 90324487 is published for opposition with the period beginning May 7, 2026; the other two remain suspended pending downstream administrative resolution. They proceed toward registration in the ordinary USPTO examination process.

The thesis follows from these four facts. Whatever the corporate chain pays in continued attorney fees on Serial 87695693, the federal-register endpoint over the next zero to thirty months converges on the same outcome: abandonment, by operation of law if the deadline passes in silence; or controlled abandonment, through extension filings that admit ongoing nonuse and accrue "good cause" pressure each time; or contested abandonment, through an SOU filing that asserts actual commercial use across services the registrant has publicly disclosed it does not provide. None of these paths produces a registered GAGE mark in the corporate chain's hands. All of them produce a federal-register picture in which the GAGE name proceeds only on Gage Green Group's three applications.

This paper documents the procedural record from primary sources, walks the doctrinal mechanics, and describes the three scenarios at the deadline. It does not predict the outcome. The deadline will be observed publicly through TSDR within forty-eight hours of publication. A short follow-up note will record the actual disposition.

I. Background and Procedural History

A. The Two Proceedings, Captioned

The federal-trademark dispute between the original Gage Green Group brand holders and the Gage Growth Corp. corporate chain was litigated in two TTAB proceedings with inverse captions.

In Opposition No. 91252169, the plaintiff-opposers were Gage Specialties LLC, Fang LLC, and Gage Prestige Holdings LLC; the defendant-applicant was Gage Growth Corp. The mark at issue was GAGE, Serial No. 87695693, filed under Section 1(b) on an intent-to-use basis. Michael Fong appeared pro se for the opposers; Brian Landry and Erin Westbrook of Saul Ewing LLP represented Gage Growth Corp. The notice of opposition was filed November 4, 2019. Final disposition issued April 29, 2025 — opposition dismissed in a non-precedential opinion authored by Judge Elgin. The outcome ran against Gage Prestige's side, on priority.

In Opposition No. 91278331, the captions were inverse: Gage Growth Corp. was the plaintiff-opposer, and Gage Specialties / Fang LLC / Gage Prestige Holdings were the defendant-applicants. The marks at issue were GAGE, GAGE GREEN, and GAGE GREEN GROUP, on Serial Nos. 90324487, 90746550, and 97251818 respectively. Counsel were the same — Saul Ewing LLP for Gage Growth Corp., Michael Fong pro se for the applicants — but in inverted seats. Final disposition issued May 6, 2026 — judgment with prejudice for failure to prosecute. The outcome ran against Gage Growth Corp.'s side, on procedure rather than merits.

The two proceedings test different questions. 91252169 asked whether Gage Prestige et al. could prove priority of common-law use sufficient to block Gage Growth Corp.'s GAGE application. 91278331 asked the opposite — whether Gage Growth Corp. could overcome Gage Prestige's later applications. The first question was reached on the merits; the second, on procedure.

B. TTAB 91252169 — Final Decision (April 29, 2025)

Primary source: TTAB final decision, mailed April 29, 2025, vaulted at SHA-256 44f9b459928bff31e99f12290b7a080caa0231b6d05e2ca9222c28b79c0d18aa (entry 78 in the TTABVUE docket).

The Board's panel — Judges Lykos, English, and Elgin, with the opinion authored by Judge Elgin — issued a non-precedential opinion designated Gage Specialties LLC, Fang LLC, and Gage Prestige Holdings LLC v. Gage Growth Corp. The opinion is one hundred and six pages.

The Board's findings of historical fact, drawn from Michael Fong's testimony declarations and supporting exhibits, include the formation of Gage Specialties in California in 2008 by Michael Fong and Jeffrey Selsor as equal partners; the company's relocation to Michigan in 2014; and its conversion to a Michigan limited liability company in 2016. The opinion notes that "Gage Specialties produced and sold seeds and plants used to produce marijuana." Entry 78 at 5.

The opposition was tried on a Section 2(d) likelihood-of-confusion theory. After the close of trial but before briefing, the Board joined Fang LLC and Gage Prestige Holdings as party-plaintiffs by order dated April 30, 2024, designated 67 TTABVUE 4. Other claims pleaded in the operative amended notice of opposition (dilution under Sections 2 and 43(c); deceptiveness under Section 2(a); a claim that the involved intent-to-use application was void ab initio due to an assignment in violation of Section 10) were deemed waived by the Board because they were not pursued at trial.

The dispositive issue was priority. The Board held that on the record before it, Gage Prestige had not proven by a preponderance of the evidence priority of use in the marks tried by implied consent. The marks listed in the opinion are GAGE, GAGE GREEN GROUP, GAGE GREEN, GAGE ORIGINALS, GAGE GREEN GATHERING, GAGE GREEN GENETCS, GAGE FORUMS, GGG, and GGG NATURALS. Entry 78 at 105–106. Because priority is an essential element of a Section 2(d) claim, the Board did not reach likelihood of confusion.

The Board's reasoning on priority turned, in significant part, on a doctrine more fundamental than the parties' relative dates of first use: the lawful-use requirement for trademark priority under federal law. The Board cited the Schedule I status of cannabis under the Controlled Substances Act and the absence of evidence in the record that Gage Prestige's predecessors' alleged "scientific research in the fields of holistic living, medical applications of cannabis, [and] botany" was lawful under the CSA — that is, no evidence that Gage Prestige's predecessors "are or were (or are or were authorized to) research or breed cannabis to produce industrial hemp, as opposed to marijuana, or that they have been approved to operate a federally-approved research project breeding marijuana for medical purposes." Entry 78 at 104.

The opinion is non-precedential. By Board practice, a non-precedential opinion is binding on the parties as to the matter decided but is not a precedent the Board considers itself bound to follow in other proceedings. Its weight as authority outside this case is correspondingly limited.

The disposition: "The opposition to Classes 9, 16, 35, 38, 41, 42, and 44 in Serial No. 87695693 is dismissed." Entry 78 at 106.

Subsequent procedural history: requests for reconsideration filed at entries 79, 80, 81, and 83 (dated May 27, 2025; May 28, 2025; July 8, 2025); request for reconsideration denied at entry 84 (July 11, 2025); proceeding terminated at entry 85 (September 30, 2025).

C. TTAB 91278331 — Final Judgment with Prejudice (May 6, 2026)

Primary sources: TTAB show-cause order (entry 40, dated March 3, 2026, vaulted at SHA-256 42d54a4264453aa6f5c047a42ac874ccd8b2f23e9d6508946f24742bc9c3ce62); TTAB Board decision dismissing opposition with prejudice (entry 41, dated May 6, 2026, vaulted at SHA-256 44f9af8d87a2c000336d9dd572b6d082da8db1cdcd55e846b5fef2fa54aad6d6).

Procedural posture: Gage Growth Corp. was the Opposer; Gage Specialties LLC, Fang LLC, and Gage Prestige Holdings LLC were the Applicants whose applications for GAGE / GAGE GREEN / GAGE GREEN GROUP (Serials 90324487, 90746550, 97251818) were under opposition. By December 19, 2025, the proceeding had been suspended (entry 38). Proceedings resumed January 14, 2026 (entry 39). The Opposer's main brief was due in the resumed schedule but was not filed.

On March 3, 2026 the Board issued a show-cause order under TTAB Trademark Rule 2.128(a)(3), giving Gage Growth Corp. thirty days to show cause why judgment should not be entered against it for failure to prosecute. The response deadline was April 2, 2026. No response was filed. On May 6, 2026, the Board entered final judgment against the Opposer with prejudice for failure to prosecute, and the proceeding was terminated the same day.

Rule 2.128(a)(3) provides that "[i]f a brief on the case is not filed by the plaintiff, an order may be issued allowing plaintiff until a set time, not less than fifteen days, in which to show good and sufficient cause why judgment should not be entered against plaintiff." 37 C.F.R. § 2.128(a)(3). Where the opposer is the plaintiff and fails to file the main brief, the rule is the procedural mechanism through which the opposition is dismissed without reaching the merits.

The 91278331 judgment, by its own terms, is a procedural disposition. It does not adjudicate priority, distinctiveness, likelihood of confusion, or any element of a Section 2(d) claim. It removes the principal federal-trademark obstacle to Gage Specialties / Fang / Gage Prestige's three applications, which now proceed to USPTO examination in the ordinary course.

D. TSDR Status of Serial 87695693 (May 9, 2026)

Primary source: TSDR HTML status snapshot, captured May 9, 2026 at 20:35:14 EDT, vaulted at SHA-256 41e9a75968653a0ae3984eb74e7eb4344f5fb05d7fec26a927a7a7025ba36edb.

Verbatim status text from the TSDR snapshot:

Notice of Allowance (NOA) sent (issued) to the applicant. Applicant must file a Statement of Use or Extension Request within six months of the NOA issuance date.

Verbatim attribute fields from the snapshot: the mark is GAGE; Serial No. 87695693; filing date November 22, 2017; filing basis Section 1(b) intent-to-use, with a foreign-priority claim to Canadian Application No. 1868389 (filing date November 17, 2017); owner of record GAGE GROWTH CORP.; International Classes 9, 16, 35, 38, 41, 42, and 44; status date and Notice of Allowance date both November 11, 2025.

Computed deadline: a Section 1(b) Notice of Allowance opens a six-month window during which the applicant must file either a Statement of Use under Section 1(d)(1) or a Request for Extension of Time under Section 1(d)(2). 15 U.S.C. § 1051(d). Six months from November 11, 2025 is May 11, 2026 — forty-eight hours from this paper's publication.

As of the captured TSDR snapshot, no Statement of Use is on the application file.

II. Doctrinal Mechanics

A. Rule 2.128(a)(3) and the 91278331 Disposition

A judgment under Rule 2.128(a)(3) is a default for failure to prosecute. The Board does not reach the merits. Two consequences follow.

First, the judgment in 91278331 does not establish any factual finding about the priority, distinctiveness, or use of Gage Specialties / Fang / Gage Prestige's three applications. It establishes only that Gage Growth Corp.'s opposition to those applications is now over and cannot be refiled.

Second, the three Applicants' applications (Serials 90324487, 90746550, 97251818) return to ordinary USPTO examination. They will be evaluated on their own filing bases, evidentiary records, and any subsequent office actions. Whether they ultimately register depends on the standard examination criteria — distinctiveness, lack of likelihood of confusion with prior marks, lawful use under federal law, and other Lanham Act requirements. The 91278331 judgment removes the opposition-shaped obstacle; it does not guarantee registration.

This procedural posture is essential to honest characterization. The 91278331 judgment is a real and final win on procedure. It is not a merits adjudication of the marks' validity.

B. What 91252169 Did and Did Not Decide

91252169 is a non-precedential opinion. It did not adjudicate the GAGE marks' distinctiveness, ownership, likelihood of confusion, or commercial validity. It did not foreclose any of the doctrinal pathways through which lawful use can be established. The Board explicitly noted that goods falling under federal exemptions — Farm Bill hemp, horticultural carve-outs, religious-exercise framework — could establish trademark rights; the opinion observed that the trial record had not developed those pathways and turned on procedural-evidentiary grounds applied uniformly across every mark and class examined, including the Class 25 (clothing) goods that have no CSA implication whatsoever.

The opinion's significance for the post-judgment posture is therefore narrow. It cleared one of two parallel proceedings; the more consequential outcome — the May 6, 2026 final judgment with prejudice in 91278331 — followed thirteen months later, and runs in Gage Green Group's favor.

C. The Lawful-Use Doctrine: Reach and Limits

The Board's reasoning in 91252169 reflects a well-developed but narrow doctrine. Trademark rights, whether asserted as registered marks or as common-law priority, require lawful use of the mark in commerce. See In re Brown, 119 USPQ2d 1350, 1351 (TTAB 2016); In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016); TMEP § 907 ("Use of a mark in commerce must be lawful use to be the basis for federal registration under the U.S. Trademark Act."). Where the goods or services associated with a mark are unlawful under the federal Controlled Substances Act, the use is not "lawful" within the meaning of the Lanham Act, and the mark cannot acquire trademark rights through that use.

The doctrine has two important boundaries that the 91252169 opinion did not have occasion to reach.

First, the doctrine targets the specific goods or services at issue, not the mark itself or the applicant's broader business. Marks are registered class-by-class. Within the same registration, some classes may be CSA-exposed and others not. A clothing-class application (International Class 25) covering t-shirts is not within the CSA's scope regardless of who wears the shirts; an information-class application (Class 16, Class 41, Class 42) covering publications, education, and websites about cannabis is protected speech that requires no controlled-substance use. The lawful-use bar applies to the act of using the mark on the goods or services described in the registration — not to the cultural or commercial association of the mark with cannabis.

Second, the federal CSA framework is itself in motion, and the 2018 Farm Bill carves out hemp. Cannabis sativa L. with a delta-9 THC concentration of 0.3% or less by dry weight is "hemp" — federally legal, removed from Schedule I, regulated under the Agriculture Improvement Act of 2018, 7 U.S.C. § 1639o. Goods derived from hemp at that threshold (lip balms, lotions, oils, salves, fiber, seeds) are not controlled substances. The DEA has further clarified that cannabis seeds with ≤0.3% THC are not Schedule I material — a position taken in DEA correspondence (2022) cited in industry guidance and subsequent USPTO examination practice. Article 28(2) of the 1961 UN Single Convention on Narcotic Drugs likewise exempts cultivation "exclusively for industrial purposes (fibre and seed) or horticultural purposes" from international control.

The Board in 91252169 applied the lawful-use doctrine to Gage Prestige's specific evidentiary showing on the priority question. The 396 cultivars, the international community, the seed sales, the awards, and the magazines — none of those, as documented in that trial record, were tied to evidence of lawful federal use of the cannabis-related goods and services then claimed. The opposition consequently could not prevail on priority. The Board's holding was confined to that record and those classes; it was not, and on its terms could not have been, a holding that the lawful-use bar applies uniformly across every cannabis-adjacent class or to every doctrinal posture.

D. Goods-and-Services Asymmetry Across the Four Applications

A class-by-class read of the four applications, drawn directly from TSDR, undermines the symmetric-barrier framing.

Serial 87695693 (Gage Growth Corp., GAGE) covers seven classes — 9, 16, 35, 38, 41, 42, and 44 — and the identifications are explicitly tied to medical marijuana and cannabis: electronic publications "in the field of medical marijuana, cannabis and cannabis oils"; physician referral services "in the field of medical marijuana"; operation of websites and bulletin boards "providing information about medical and scientific research related to medical cannabis and marijuana"; educational services "in the field of medical marijuana and cannabis"; medical counselling "in the field of medical marijuana"; operation of a "wellness center for medical marijuana patients providing medical marijuana counselling services in the field of medical marijuana"; consulting services "in the field of medical use of cannabis"; and operation of a website "providing medical information in the field of marijuana and regarding indications and effects of particular cannabis strains." These identifications are the most CSA-exposed configuration possible: every Class 35, 38, 41, 42, and 44 service is explicitly medical-marijuana facilitative, not informational-only and not hemp-limited.

Serial 90324487 (Gage Prestige, GAGE GREEN GROUP) covers Class 25 only — "clothing, namely, t-shirts." There is no cannabis good or service in the identification. The CSA lawful-use doctrine has no application. As of TSDR snapshot dated 2026-05-10, the application's status is "Application has been published for opposition" with status date May 7, 2026 — a routine post-publication posture.

Serial 90746550 (Gage Prestige, GAGE) covers Class 3 with goods explicitly limited to "non-medicated and non-therapeutic lip balms; non-medicated and nontherapeutic massage oil; non-medicated and non-therapeutic body lotion; non-medicated and nontherapeutic body salves and sports cream; all of the foregoing containing cannabis ingredients solely derived from hemp with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis"; Class 25 clothing; Class 34 lighters; and Class 35 retail and online retail services for the foregoing. Every cannabis-adjacent good is explicitly Farm-Bill-compliant hemp. The application's status is "Suspension check completed. Application remains suspended" — an interim administrative posture pending resolution of related proceedings.

Serial 97251818 (Gage Prestige, GAGE) covers Class 3 hemp-derived (≤0.3% THC) topical preparations; Class 9 electronic publications "in the field of cannabis"; Class 16 printed publications "in the field of cannabis"; Class 25 clothing; Class 34 lighters and bags "specially adapted for exclusive use with cannabis products in the nature of herbs for smoking solely derived from hemp with a delta-9 tetrahydrocannabinol THC concentration of not more than 0.3 percent on a dry weight basis"; Class 35 retail and physician-referral services; Class 38 online bulletin board services; Class 41 educational services; and Class 42 information services about medical cannabis research. The publishing, educational, and information-services classes are protected speech and information, not the use of cannabis itself; the Class 3 topicals and Class 34 smoking accessories are explicitly hemp-only; the Class 35 retail covers federally-legal goods. Again, the application is suspended pending resolution of related proceedings.

The lawful-use barrier as applied in 91252169 falls hardest on the application most CSA-exposed by its own identification. That application is Serial 87695693 — Gage Growth Corp.'s. The Gage Prestige applications, on their identifications, are largely outside the bar's scope.

E. Doctrinal Vehicles Available to Cannabis-Adjacent Applicants

Where any residual lawful-use question does arise on Gage Prestige's classes 41, 42, or 35 services about cannabis, multiple doctrinal vehicles exist that the 91252169 record did not develop.

The Religious Freedom Restoration Act. RFRA, 42 U.S.C. § 2000bb et seq., provides that the federal government "shall not substantially burden a person's exercise of religion" unless it demonstrates "a compelling governmental interest" by "the least restrictive means." In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the Supreme Court applied RFRA to permit a religious organization's sacramental use of hoasca — a Schedule I substance under the CSA — over the government's objection. The Court rejected categorical CSA enforcement as insufficient to satisfy strict scrutiny. RFRA opens a doctrinal vehicle for trust-based and faith-based fiduciary use that the trademark applicant can invoke if its use of the mark is in service of a sincerely-held religious practice within an established framework.

The Michigan Medical Marihuana Act and federal-enforcement priorities. Michigan voters approved the MMMA by initiative in 2008. Registered qualifying patients and primary caregivers operate within a statutory framework that recognized medical cannabis use, cultivation, and caregiver-to-patient transfers. The 2013 Cole Memorandum (rescinded 2018 but not directly replaced as enforcement policy) established federal enforcement priorities that effectively deprioritized prosecution of state-compliant medical cannabis activity. The Rohrabacher-Farr appropriations rider, first enacted in 2014 and renewed annually, prohibits the Department of Justice from using appropriated funds to interfere with state-compliant medical cannabis programs in covered states. United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) construed the rider to bar DOJ prosecution of individuals whose conduct is strictly compliant with state medical-cannabis law. Use within the MMMA caregiver framework occupies a distinctive federal-enforcement posture that, while not a formal CSA exemption, is materially different from unprivileged commercial cultivation.

The pending Schedule III rescheduling. The Department of Health and Human Services issued a recommendation to reschedule cannabis from Schedule I to Schedule III in August 2023. The DEA published a Notice of Proposed Rulemaking on May 16, 2024 (89 Fed. Reg. 44597) proposing the same. The rule has not finalized as of this paper's publication. Schedule III material is permissible for medical use with a prescription and is dispensed through registered handlers; the trademark lawful-use analysis for Schedule III medical cannabis would be substantially different from the analysis for Schedule I marijuana. The TTAB has not yet had occasion to opine on the post-rescheduling lawful-use posture; it is reasonable to expect such an opinion within twelve to twenty-four months of any final rule.

The DEA position on cannabis seeds. The DEA Drug & Chemical Evaluation Section (Diversion Control Division) has issued correspondence — referenced in subsequent USPTO and federal-agency guidance — clarifying that cannabis seeds with delta-9 THC concentrations not exceeding 0.3 percent on a dry weight basis are not controlled substances under the CSA. The position rests on the 2018 Farm Bill's hemp definition (7 U.S.C. § 1639o), which excluded such material from Schedule I. Seed-related goods and services tied exclusively to compliant hemp seed are accordingly outside the lawful-use bar.

The UN Single Convention horticultural / seed carve-out. Article 28(2) of the 1961 Single Convention on Narcotic Drugs provides that the Convention "shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fibre and seed) or horticultural purposes." The international framework on which CSA Schedule I treatment of cannabis ultimately rests itself recognizes a horticultural and seed-cultivation carve-out. Trademark applications for cultivar registries, seed-bank operations, plant-genetics research, and horticultural-information services occupy a posture that even the international treaty framework distinguishes from prohibited drug-trade activity.

F. The Section 1(b) SOU Window

The Lanham Act mechanism is straightforward. After a Notice of Allowance issues on a Section 1(b) intent-to-use application, the applicant has six months to file either:

1. A Statement of Use demonstrating that the mark is now in actual lawful use in commerce on each of the identified goods and services. The SOU must be supported by a specimen of use and a verified statement.

2. A Request for Extension of Time to file the SOU. The first extension is a matter of right (subject to fee). Each subsequent extension (up to five total, providing thirty months of additional time from the NOA) requires a "showing of good cause" — increasingly specific demonstrations of why use has not yet commenced and what the applicant is doing to bring the mark into use.

Failure to file either by the deadline results in the application being abandoned by operation of law. The abandonment is not discretionary. There is no opposition or notice required. The application is simply dead.

This mechanism is the Lanham Act's solution to the problem of speculative trademark applications. Section 1(b) allows applicants to claim priority based on bona fide intent to use, but Congress required that the intent be perfected through actual use within a defined window. If the use does not materialize, the slot opens up for other applicants.

III. The Federal-Register Picture, Read Against the Commercial Record

A. The TerrAscend Michigan Exit (August 2025)

The applicant of record on Serial 87695693 is Gage Growth Corp., a wholly-owned subsidiary of TerrAscend Corp. (OTC: TSNDF). TerrAscend's most recent annual report on Form 10-K, filed with the SEC in March 2026, disclosed material developments in the Michigan business that bear directly on Gage Growth Corp.'s capacity to perfect 87695693:

• All twenty Michigan retail dispensaries closed in August 2025.
• Approximately 250 Michigan employees were terminated.
• The intangible asset corresponding to the acquired Gage trademark was written down to $0.
• Cumulative Michigan operating losses: approximately $167.7 million.

The 10-K disclosures are addressed in detail in Paper 015 (FY2025 10-K terminal disclosure analysis) and Paper 018 (the extractive chain). The relevant point for this paper is narrower: as of late 2025 and continuing into 2026, the registrant of Serial 87695693 has no operating Michigan retail or service footprint corresponding to the Class 35, 38, 41, 42, and 44 services for which it must show actual lawful use in commerce. Whatever lawful-use story Gage Growth Corp. could have told prior to August 2025 is structurally weaker now.

B. Three Scenarios at the May 11, 2026 Deadline

Three scenarios are available to Gage Growth Corp. as of the SOU deadline:

Scenario 1: File a Statement of Use. The applicant must verify, under penalty of perjury, that the mark is in actual lawful use in commerce on each identified service. The SOU must be supported by a specimen showing the mark in commercial use. The applicant's specimen and verification will be evaluated under the same evidentiary standards the Board applied in 91252169 — documentary evidence keyed to specific dates, sworn testimony consistent with the documentary record, and use of the mark on the goods or services as identified. In re Bose Corp., 580 F.3d 1240, 1245 (Fed. Cir. 2009), sets the standard for fraud-on-USPTO claims (subjective intent to deceive). Where the registrant's parent has publicly disclosed in SEC filings the closure of all twenty Michigan dispensaries and the termination of approximately 250 employees in August 2025, an SOU asserting actual provision of medical-marijuana physician-referral, wellness-counselling, and online-bulletin-board services in 2026 is a verification that interested parties may scrutinize against the public corporate record.

Scenario 2: File an Extension Request. A first extension is a matter of right. Subsequent extensions require progressively stronger "good cause" showings. The applicant can use up to five extensions, totaling thirty months from the NOA, before the application abandons. Each extension is publicly visible on TSDR. An extension trajectory keeps the application alive but accumulates a public record of nonuse that the trade press, regulators, and any future opposers can cite.

Scenario 3: File nothing. The application abandons by operation of law on May 11, 2026 or shortly thereafter (allowing for a brief processing window). Abandonment is final and self-executing. No new opposition is required. The application is dead. The slot reopens.

C. What Each Scenario Implies for the Federal-Register Picture

Combining the three scenarios with the 91278331 outcome produces the full federal-register picture. Under Scenario 1, Serial 87695693 proceeds toward registration but with a lawful-use challenge available to interested parties; the three Gage Prestige applications resume standard examination. Under Scenario 2, Serial 87695693 stays alive on extensions while nonuse accrues on the public record; the Gage Prestige applications likewise resume standard examination. Under Scenario 3 — the path of least applicant action — Serial 87695693 abandons May 11, 2026, the federal-register slot clears, and Gage Growth Corp. has no remaining federal-trademark vehicle to oppose Gage Prestige's three applications, which proceed to examination unimpeded.

In Scenario 3, the federal-register picture converges: the GAGE marks proceed only on Gage Specialties / Fang / Gage Prestige's applications, and Gage Growth Corp.'s federal-trademark interest in the GAGE name extinguishes itself.

In Scenarios 1 and 2, the picture remains contested at the federal-register level, but the contestation moves from the TTAB into the USPTO examination process, the SOU lawful-use record, and any post-registration cancellation petitions that may follow.

IV. The Conscious-Speaker Problem, Restated

Paper 017 introduced the "conscious-speaker problem" in trademark law: the situation where a corporate actor's own statements — in employee testimony, SEC filings, sworn declarations, and public statements — establish the actor's awareness of facts that bear on the trademark dispute. The conscious-speaker problem augments traditional likelihood-of-confusion analysis with direct evidence of state of mind.

The post-judgment posture of Serial 87695693 presents a discrete conscious-speaker question that the SOU filing will either address or evade:

If Gage Growth Corp. files a Statement of Use verifying actual use in commerce on the medical-marijuana goods and services identified in Serial 87695693, the verification is made by a corporate officer with knowledge of:

• The TerrAscend Michigan exit disclosed in the FY2025 10-K (a sworn SEC filing).
• The closure of all twenty Michigan dispensaries in August 2025.
• The acquired-trademark intangible was written down to $0 in the FY2025 Form 10-K disclosed to investors. The same trademark cannot simultaneously be worth zero on the balance sheet and represent actual operating commercial use sufficient to support a Statement of Use across seven International Classes.
• The Section 1(b) basis of the application, which by definition disclaims any prior actual use at the time of filing.

The Board, the courts, and any subsequent challenger have access to all of these statements. The conscious-speaker record is unusually well-developed for a procedural action of this kind.

The paper does not draw a legal conclusion about whether any specific SOU filing would constitute fraud on the USPTO under the In re Bose standard. The standard requires a showing of subjective intent to deceive that is fact-specific. The paper observes only that the documentary record is unusually rich on the underlying factual questions.

V. Methodology and Sources

This paper relies exclusively on primary-source documents, vaulted with SHA-256 hashes for verification.

The TTAB 91252169 entry 78 final decision, mailed April 29, 2025, carries SHA-256 hash 44f9b459928bff31e99f12290b7a080caa0231b6d05e2ca9222c28b79c0d18aa and is available at the TTABVUE URL https://ttabvue.uspto.gov/ttabvue/ttabvue-91252169-OPP-78.pdf.

The TTAB 91278331 entry 40 show-cause order, dated March 3, 2026, carries SHA-256 hash 42d54a4264453aa6f5c047a42ac874ccd8b2f23e9d6508946f24742bc9c3ce62 and is available at https://ttabvue.uspto.gov/ttabvue/ttabvue-91278331-OPP-40.pdf.

The TTAB 91278331 entry 41 judgment with prejudice, mailed May 6, 2026, carries SHA-256 hash 44f9af8d87a2c000336d9dd572b6d082da8db1cdcd55e846b5fef2fa54aad6d6 and is available at https://ttabvue.uspto.gov/ttabvue/ttabvue-91278331-OPP-41.pdf.

The TSDR status snapshot for Serial No. 87695693, captured May 9, 2026 at 20:35:14 EDT, carries SHA-256 hash 41e9a75968653a0ae3984eb74e7eb4344f5fb05d7fec26a927a7a7025ba36edb and was retrieved from https://tsdr.uspto.gov/statusview/sn87695693.

Statutory authorities cited: 15 U.S.C. § 1051(b)–(d) (Section 1(b) and Section 1(d) of the Lanham Act); 37 C.F.R. § 2.128(a)(3) (TTAB show-cause and failure-to-prosecute rule); 21 U.S.C. § 812 (Schedule I classification under the Controlled Substances Act).

Case law cited: In re Brown, 119 USPQ2d 1350 (TTAB 2016); In re JJ206, LLC, 120 USPQ2d 1568 (TTAB 2016); In re Bose Corp., 580 F.3d 1240 (Fed. Cir. 2009).

Trademark Manual of Examining Procedure cited: TMEP § 907 (lawful use in commerce as prerequisite to federal registration).

Companion papers in the LAW Intelligence series:

• Paper 015 (LAW Intelligence 2(4)) — TerrAscend FY2025 10-K terminal disclosure analysis.
• Paper 016 (LAW Intelligence 2(5)) — What Is Gage Cannabis? Two Brands, One Name, and a $545 Million Question.
• Paper 017 (LAW Intelligence 2(6)) — Lawfare and Corporate Espionage in the Gage TTAB Proceedings: A Tactical Analysis.
• Paper 018 (LAW Intelligence 2(7)) — The Gage Cannabis Extractive Chain.

This paper is Paper 020 (LAW Intelligence 2(8)). The numbering reflects that Paper 019 (Quantum-Provenance Genetic Architecture) has been migrated to the corporate publications platform at gagegreengroup.com.

VI. Conclusion

The May 6, 2026 final judgment with prejudice in TTAB Opposition No. 91278331 ends the corporate Opposer's challenge to Gage Green Group's pending federal applications for GAGE, GAGE GREEN, and GAGE GREEN GROUP. The judgment was entered against Gage Growth Corp. for failure to prosecute under TTAB Rule 2.128(a)(3) — a procedural default in which the Opposer let the show-cause deadline pass without filing a brief.

The remaining federal-register asset on the corporate side is Serial 87695693, a Section 1(b) intent-to-use application with a Notice of Allowance dated November 11, 2025. The Statement of Use deadline is May 11, 2026 — forty-eight hours from the publication of this paper. The TSDR snapshot captured May 9, 2026 shows no Statement of Use on file. The applicant — Gage Growth Corp., a wholly-owned subsidiary of TerrAscend Corp. — has publicly disclosed in SEC filings the complete exit from the Michigan cannabis market in August 2025, the closure of all twenty Michigan dispensaries, the termination of approximately 250 employees, and the writedown of the acquired Gage trademark intangible to $0. The applicant has three options: file a Statement of Use, file an Extension Request, or file nothing.

The paper does not predict the outcome. It observes that the documentary record is unusually rich, the deadline is unusually proximate to publication, and the federal-register picture that emerges over the next forty-eight hours and the subsequent thirty months will become a matter of public TSDR record. A short follow-up note will record the actual disposition.

Every fact in this paper is verifiable against a primary-source document vaulted with a SHA-256 hash. The deadline is fixed by the Lanham Act and the November 11, 2025 Notice of Allowance. The applicant's response, or absence of response, will be observable on TSDR within forty-eight hours.

— END —

Citation

LAW Intelligence Research Division. (2026). Two Gage Trademark Proceedings, One Federal-Register Picture: Post-Judgment Status of TTAB 91278331 and the May 11, 2026 SOU Deadline on Serial 87695693. LAW Intelligence, 2(8), 1–24.

Distribution

Published: LAW Intelligence, LAW Intelligence 2(8) Status: published