Black Bear Bottling Groupv.Black Bear Spring Water LLCDownload PDFTrademark Trial and Appeal BoardNov 8, 2011No. 92050665re (T.T.A.B. Nov. 8, 2011) Copy Citation Mailed: November 8, 2011 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Black Bear Bottling Group v. Black Bear Spring Water LLC _____ Cancellation No. 92050665 On Reconsideration _____ Donald J. Ersler of Donald J. Ersler, SC for Black Bear Bottling Group. Ernest D. Buff of Ernest D. Buff & Associates, LLC for Black Bear Spring Water LLC. _____ Before Quinn, Cataldo and Bergsman, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: On August 18, 2011, the Board issued a final decision in the above-captioned proceeding. In that decision, we found that: petitioner had standing to bring its petition to cancel; petitioner’s claim was not barred by laches; and petitioner proved its pleaded claim of priority and likelihood of confusion. Accordingly, we granted the petition to cancel on the ground of priority and likelihood of confusion. THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Cancellation No. 92050665 2 On September 18, 2011, respondent timely filed a motion for reconsideration of that decision. See Trademark Rule 2.129(c). Petitioner timely filed a brief in opposition thereto.1 See Id. In its motion for reconsideration, respondent asserts that our August 18, 2011 decision is in error for the following reasons: (1) “The Board’s use of Petitioner’s date of “actual knowledge” of September 2008 rather than the registration date of August 2, 2005 manifests reversible error”;2 (2) “The Board’s improper use of Petitioner’s date of “actual knowledge” of September 2008 resulted in error as to the Board’s determination of prejudice against Respondent”;3 and (3) “Confusion is not inevitable”4 and, thus, laches is available as a defense in this case. It has often been stated that the premise underlying a request for rehearing, reconsideration, or modification 1 We note that the applicable Trademark Rules of Practice make no provision for the filing of a reply brief on a request for reconsideration of a decision issued after final hearing. See Trademark Rule 2.129(c). Accordingly respondent’s reply brief on its motion for reconsideration will be given no consideration. 2 Request for Reconsideration, p. 6. 3 Id. at 8. Cancellation No. 92050665 3 under Trademark Rule 2.129(c) is that, based on the evidence of record and the prevailing authorities, the Board erred in reaching the decision it issued. See TBMP §543 (3d ed. May 2011) and the authorities cited therein. The request may not be used to introduce additional evidence, nor should it be devoted simply to a reargument of the points presented in the requesting party's brief on the case. See Amoco Oil Co. v. Amerco, Inc., 201 USPQ 126 (TTAB 1978). Rather, the request normally should be limited to a demonstration that based on the evidence properly of record and the applicable law, the Board's ruling is in error and requires appropriate change. See, for example, Steiger Tractor Inc. v. Steiner Corp., 221 USPQ 165 (TTAB 1984), different results reached on reh’g, 3 USPQ2d 1708 (TTAB 1984). Cf. In re Kroger Co., 177 USPQ 715, 717 (TTAB 1973). We address each of respondent’s arguments in turn. With regard to respondent’s first contention, in our August 18, 2011 decision we noted that, based upon the testimony and evidence of record, petitioner first became aware of respondent on September 18, 2008.5 We then went on to find, in accordance with the relevant authorities, Even absent this testimony, the earliest date for purposes of determining whether there has been undue delay is the March 2, 2004 publication date and the August 2, 2005 issue date of the subject registration. See National Cable Television Ass'n, 4 Id. at 11. 5 August 18, 2011 decision, p. 8. Cancellation No. 92050665 4 Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1581, 19 USPQ2d 1424, 1432 (Fed. Cir. 1991) (laches runs from the time from which action could be taken against the trademark rights inhering upon registration). Petitioner brought this cancellation proceeding on March 9, 2009, approximately five years after the publication date and three years and seven months after the date of registration.6 Thus, it is clear from the August 18, 2011 decision that petitioner’s delay in bringing its cancellation action was calculated from the August 2, 2005 issue date of respondent’s subject registration. With regard to respondent’s second contention and as discussed above, inasmuch as the August 2, 2005 issue date of respondent’s registration was used to calculate petitioner’s delay, our determination of prejudice against respondent was not in error. With regard to respondent’s third point, we note that in our August 18, 2011 decision, we did not make a finding with regard to inevitability of confusion either in our discussion of laches or likelihood of confusion. Thus, our decision cannot be found to be in error with regard thereto. In short, respondent points to no error on the part of the Board in our August 18, 2011 decision on final hearing but rather expresses disagreement with the result reached therein. Furthermore, and as observed in our August 18, 2011 decision, respondent did not submit any arguments in 6 Id. p. 8-9. Cancellation No. 92050665 5 its brief with regard to its laches defense. As a result, respondent will not now be heard to raise for the first time arguments that should properly have been raised in its brief on final decision. As a result, we remain of the opinion that our July 11, 2007 decision is correct. Accordingly, respondent’s motion for reconsideration is denied.7 7 The parties will note that neither Trademark Rule 2.129(c) nor any of the other rules of practice applicable to Board proceedings contemplate a second request for reconsideration of a final decision in a Board inter partes case. Copy with citationCopy as parenthetical citation