Serta, Inc.v.S Industries, Inc. and Central Mfg. Co.

Trademark Trial and Appeal Board

Dec 17, 2003

No. 91112035re (T.T.A.B. Dec. 17, 2003)

Mailed: 17 DEC 2003
Paper No. 54
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Serta, Inc.
v.
S Industries, Inc. and Central Mfg. Co.
_____
Opposition No. 91112035
to Application Serial No. 75228064
________
Request for Reconsideration
_______
Richard W. Young of Gardner, Carton & Douglas for Serta,
Inc.
Leo Stoller, pro se, for S Industries, Inc. and Central
Mfg. Co.
______
Before Walters, Bucher, and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On May 15, 2003, the Board sustained the opposition to
the registration of applicant’s mark SENTRA for the goods
identified in the application. The Board found that there
was a likelihood of confusion with opposer’s registrations
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Opp. No. 91112035
2
for the mark SERTA and at least some of the goods
identified in the registrations.
Applicant has now timely filed a request for
reconsideration. In its request for reconsideration,
applicant argues that the Board “completely ignored the
facts that the SENTRA mark sought to be registered was in
use according to the record from at least as early as 1986,
was part of SENTRA marks promoted in concert, that both
parties operate on the same state, Illinois, in the same
trading area, the Chicagoland area, [and] sell to the same
customers for over 23 years.” Request for Reconsideration
at 3. Opposer has filed a response to applicant’s request
for reconsideration in which it requests that the request
be denied.1
A request for reconsideration should not be “devoted
simply to a reargument of the points presented in the
requesting party’s brief on the case.” TBMP § 543. Here,
applicant reiterates arguments that it has made previously.
The Board addressed these issues in its original opinion:
Even if applicant’s untimely notice of reliance were
properly of record, the lack of actual confusion would
not change the result here. The absence of actual
1 Applicant subsequently filed a “Reply to Serta’s Response to
Applicant’s Motion for Reconsideration.” There is no provision
for a reply to an opposition to a request for reconsideration.
37 CFR § 2.129. However, the Board may, in its discretion,
consider such a brief, which we do in this case. TBMP § 543 (2d
ed. 2003).
Opp. No. 91112035
3
confusion does not mean that there is no likelihood of
confusion. Giant Food, Inc. v. Nation's Foodservice,
Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir.
1983); J & J Snack Foods Corp. v. McDonald’s Corp.,
932 F.2d 1460, 18 USPQ2d 1889, 1892 (Fed. Cir. 1991).
Because there is no evidence of sales volume or
marketing strategies, we have no basis to find that
there were opportunities for actual confusion to
occur.
Slip op. at 9-10 (footnote omitted).
The opinion also addressed the applicant’s alleged
ownership of registrations of other marks. Slip op. at 9
n.9
Therefore, we have considered applicant’s arguments in
its request for reconsideration, but we find no basis to
change our decision. Applicant’s request for
reconsideration is denied. The decision dated May 15, 2003
stands.