Serta, Inc.v.S Industries, Inc. and Central Mfg. Co.Download PDFTrademark Trial and Appeal BoardDec 17, 2003No. 91112035re (T.T.A.B. Dec. 17, 2003) Copy Citation 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. Copy with citationCopy as parenthetical citation