Missing Cougar Companyv.Edgar Rice Burroughs, Inc.

Trademark Trial and Appeal Board

Apr 7, 2010

No. 91189827 (T.T.A.B. Apr. 7, 2010)

Goodman

Mailed: April 7, 2010

Opposition No. 91189827

Missing Cougar Company

v.

Edgar Rice Burroughs, Inc.

Before Hairston, Cataldo and Bergsman, Administrative
Trademark Judges.

By the Board:

This case now comes up on opposer’s request for
reconsideration of the Board’s order dated January 21, 2010,
granting applicant’s motion for summary judgment.
Opposer argues that the Board’s grant of summary
judgment was in error because the Board “overlooked material
issues of fact” and improperly resolved material issues of
fact. Opposer also argues that the Board failed to draw all
reasonable inferences in the light most favorable to
opposer.
In response, applicant argues that opposer’s motion
“does not identify any old evidence that the Board
overlooked; nor does it identify any new evidence that the
Board should consider” or identify a “single disputed
factual issue that could . . . bear on the outcome of the
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91189827
2
case.” Applicant further argues that “Opposer does little
more than cut and paste from its S.J. Opposition and
reiterate practically all the same arguments . . . recasting
them only in the sense of saying that the Board improperly
overlooked or adjudicated them.” Applicant submits that the
Board considered opposer’s arguments and “properly rejected
them” and that summary judgment is appropriate on a lack of
bona fide intent to use the mark in commerce ground “where
there is undisputed evidence of applicant’s intent.”
A request for reconsideration under Trademark Rule
2.127(b) provides an opportunity for a party to point out
any error the Board may have made in considering the matter
initially. It is not to be a reargument of the points
presented in the original motion. TBMP Section 518. (2d ed.
rev. 2004).
We have carefully reviewed this matter, and we find no
error in our January 21, 2010 decision.
Opposer is rearguing points previously made which we
already fully considered and found did not raise a genuine
issue. All of this is improper, as explained above, and
opposer’s request for reconsideration is denied on this
basis.
To the extent that opposer argues that we failed to
make specific factual inferences in its favor as the non-
Opposition No. 91189827
3
moving party, we find this argument is without merit. While
the Board must consider all the evidence and draw all
justifiable inferences in favor of the party opposing a
motion for summary judgment, the Board need not accept as
true unreasonable legal conclusions or unwarranted
deductions drawn from the facts, or “a legal conclusion
couched as a factual allegation,” Papasan v. Allain, 478
U.S. 265(1986), or “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Webb v. North
Carolina Dept. of Crime Control and Public Safety, 658
F.Supp.2d 700 E.D.N.C.,2009 citing Kloth v. Microsoft
Corp., 444 F.3d 312, 319 (4th Cir.2006) (quotations
omitted).
Thus, although a party opposing summary judgment is
entitled to have reasonable inferences drawn in its favor,
inferences to be drawn must be rational and reasonable, not
idle, speculative, or conjectural.
In this case opposer invited us to draw inferences that
were unwarranted or merely speculative, and such speculation
does not raise a fact question precluding summary judgment.
Therefore, we find no error in our decision on this
basis.
To the extent that opposer argues that the Board
improperly resolved issues of fact with regard to whether
applicant had abandoned its earlier filed JOHN CARTER OF
Opposition No. 91189827
4
MARS application (Serial No. 781390164) prior to entering
into the Disney Agreement or the issue of applicant’s
overlapping intent to use JOHN CARTER OF MARS applications,
(which opposer couches as indicative of applicant’s lack of
requisite good faith bona fide intent), we disagree. The
parties did not dispute that there were overlapping intent
to use applications or that the earlier filed JOHN CARTER OF
MARS application was not formally abandoned by applicant
prior to applicant entering into the Disney licensing
agreement. Moreover, opposer provided no factual
circumstances to dispute applicant’s version of events.
That is, opposer did not provide any facts regarding
applicant’s explanation for the overlapping applications
sufficient to raise a genuine issue. Evidence filed in
support of a motion for summary judgment may be accepted as
true by the Board if the party opposing the motion does not
file contrary evidence in the form of sworn affidavits or
other materials in compliance with Rule 56. Brown v.
Shinbaum, 828 F.2d 707, 708 (11th Cir.1987).
Here, opposer simply provided argument, and suggested
speculative or unwarranted inferences to be drawn from the
undisputed facts which it urged the Board to adopt. But the
Board is not required to accept unwarranted inferences with
regard to the undisputed facts, only reasonable ones.
Accordingly, we find no error in our consideration of the
Opposition No. 91189827
5
issues with respect to applicant’s undisputed explanation of
the overlapping JOHN CARTER OF MARS intent to use
applications.
Opposer also argues that the Board erred in
characterizing opposer’s evidence as “conclusory allegations
or speculation”1 and that that the Board erred by making a
determination based on “less than all the circumstances.”
All facts and evidence to which opposer now points to
in its request for reconsideration were included in his
response brief to the motion for summary judgment and
considered by the Board and found not to raise a genuine
issue of material fact. We need not detail all of the
reasons for granting summary judgment, and any arguments
opposer made that were not expressly rejected in the January
21, 2010 order were rejected implicitly. Thus, we did not
err in finding that opposer failed to introduce evidence
sufficient to survive summary judgment. Opposer’s assertion
that we did not consider all the circumstances in deciding
the motion for summary judgment is really an assertion that

1 Opposer asserts on reconsideration that the Board indicated in
the January 21, 2010 order that opposer’s evidence was
speculative or conclusory. However, opposer misconstrues the
Board’s reference to Honda Motor Co. v. Winkelmann, 90 USPQ2d
1660 (TTAB 2009). By such reference, the Board found the
inferences, not the facts, opposer sought to be drawn as
speculative or conclusory, i.e., the facts did not support the
assertions. When inferences from the facts adduced are
speculative, they fail to raise a question of fact precluding
summary judgment. Simmons v. Willcox, 911 F.2d 1077, 1082 (5th
Cir. 1990).

Opposition No. 91189827
6
this Board overlooked the significance of evidence and is
not the same thing as overlooking facts-the former is really
just a disagreement with the Board over our interpretation
of material presented. However, that is a matter for appeal
not reconsideration.
Having found no error in our January 21, 2010
decision, the request for reconsideration is denied.
The time for appeal runs from the date of this order.
Trademark Rule 2.145(d)(1) and TBMP Section 902.02 (2d ed.
rev. 2004).