Talk To Me Programs, Inc. (TTMP) (plaintiff) produced water guns and filed an intent-to-use (ITU) trademark application to register the trademark “THE TOTALLY RAD SOAKER.” After TTMP filed the application, Larami Corporation (defendant) began using the mark “SUPER SOAKER” for its water guns. Larami filed an opposition to TTMP’s application. TTMP sued Larami for trademark infringement, alleging that Larami’s first use of its mark was after TTMP’s constructive-use date based on its ITU application. The district court granted Larami summary judgment, finding that the mark THE TOTALLY RAD SOAKER was merely descriptive. The United States Court of Appeals for the Second Circuit affirmed. Subsequently, based on the court’s ruling, Larami filed a motion for summary judgment in the ITU application proceeding.