Bassani Manufacturingv.Monty Allen Campbell

Trademark Trial and Appeal Board

May 27, 2009

No. 91166939 (T.T.A.B. May. 27, 2009)

Goodman

Mailed: May 27, 2009

Opposition No. 91166939

Bassani Manufacturing

v.

Campbell, Monty Allen

Before Quinn, Grendel and Walsh, Administrative Trademark
Judges.

By the Board:

This case now comes up on applicant’s motion, filed
April 9, 2009, for reconsideration of the Board’s order
dated March 17, 2009, which granted opposer’s motion for
summary judgment on the genericness ground and to amend its
drawing to “stylized and much narrower marks” Campbell X-
PIPE or X-PIPE. Opposer has opposed the combined motion.
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 or response thereto, nor is
it to be used to raise new arguments or introduce additional
evidence. Rather, the motion should be limited to a
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
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demonstration that based on the facts before it and the
applicable law, the Board's ruling is in error and requires
appropriate change. TBMP § 518 (2d ed. rev. 2004).
We have carefully reviewed this matter, and we find no
error in our March 17, 2009 decision.
In its motion to reconsider, applicant provides what he
terms to be a “summary” of his prior response to opposer’s
motion for summary judgment which includes re-addressing
opposer’s list of 18 undisputed facts and re-addressing
opposer’s genericness argument and the sufficiency of
opposer’s evidence, including the affidavit of Boyd Butler.
Applicant also has re-argued the merits of the exhibits he
provided in response to the motion for summary judgment, now
submitting a declaration accompanied by his previously filed
exhibits, complaining that his exhibits were “ignored” by
the Board based on a technicality.
All of this argument is improper as applicant is
rearguing points previously made, or advancing new issues or
arguments or evidence that could have been offered at the
time the motion for summary judgment was briefed.
Accordingly, the motion for reconsideration is denied on
this basis.
Applicant also seeks reconsideration on the basis that
opposer’s evidence was unable to show that applicant’s mark
has been used in such categories as turbo chargers,
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mufflers, tail pipes, catalytic converters etc., contending
that the issue that should have been addressed is “whether
Applicant’s Mark is the GENERIC term used to identify all of
those items contained in the group of goods and services
identified as ‘internal combustion engine exhausts which
contain exhaust pipes and discharge pipes.’” Applicant
further submits that the genus “should be based upon the
even broader category actually issued by the USPTO . . .
‘Internal combustion engine exhausts.’”
We find that applicant’s arguments lack merit. The
fact that “x-pipe” is not the name for all the goods in the
genus is irrelevant. It is sufficient that “x-pipe”
identifies a type of internal combustion engine exhaust. We
also find no error in narrowing the genus to internal
combustion engine exhausts containing exhaust pipes and
discharge pipes. While expanding or contracting the
definition of the genus can substantially affect the final
determination of whether a mark is generic, in this case,
the broadening of the genus to internal combustion engine
exhausts would not change the result herein.
Accordingly, the motion for reconsideration is denied
on this basis.
Applicant further argues that the Board’s determination
that opposer’s exhibits evidenced proof of relevant public
understanding was error because the exhibits came “directly
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from competitors” and opposer provided no consumer surveys
or opinion polls. Applicant also states that the Board made
an incorrect assumption regarding competitor use of
applicant’s mark X-Pipe as the sixteen instances of use of
X-Pipe applicant identified in its response brief included
both competitor use and applicant’s own use.
Applicant’s arguments are rejected. Evidence of the
relevant public understanding may be obtained from any
competent source and consumer surveys are not the only means
for establishing such. In determining relevant public
understanding, we considered not only competitor use but
multiple print and online media sources as well as a
definition from Delmar’s Automotive Dictionary. With regard
to overlapping uses of X-Pipe by both applicant and
competitors, as we stated previously in our March 17, 2009
decision, in the face of clear evidence of genericness, a
mixed record of proper trademark use and generic use is
insufficient to raise a genuine issue of material fact.
Accordingly, applicant’s motion to reconsider is denied
on this basis.
Applicant has also argued that its due process rights
were violated because the Board’s March 17, 2009 order
referenced case law not pleaded by opposer and applicant was
not allowed “to address case law that was not pleaded before
him.” Applicant further complains that “[t]he Board
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fill[ed] in the case law and make up [sic] holes in
Opposer’s demonstration evidence” and asks “Is it the
Board’s right to create the pleadings, when the Opposer
cannot . . . for an unfair granting of an otherwise flawed
and failed MSJ.”
Applicant’s argument regarding a lack of due process is
rejected. Applicant was served with the motion for summary
judgment and filed a response thereto. Moreover, applicant
has had an opportunity to address the Board’s order by his
filing of the motion to reconsider herein.
Further, the Board finds no merit in applicant’s
arguments with regard to the Board’s citation to case law
not provided by opposer in its main brief. The Board
properly utilized controlling precedent to evaluate
opposer’s evidence and finds no error in its application of
the law to the facts before it. There is no requirement
that the Board rely only on cases cited by a party in making
its determination on summary judgment.
Lastly, we must comment on applicant’s belief that the
Board’s decision was driven by partiality. The Board
carefully considered the parties’ arguments and the
documentary evidence before it prior to making the factual
findings delineated in the order. Applicant’s
unsubstantiated allegations, while reflecting disagreement
with the Board’s ruling on summary judgment, are
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insufficient to warrant relief under Trademark Rule
2.127(b).
Accordingly, we find that applicant has not established
any error in our March 17, 2009 decision granting opposer’s
motion for summary judgment.
In view thereof, applicant’s motion for reconsideration
is denied. The Board’s order of March 17, 2009 stands.
In view of the denial of the motion to reconsider,
applicant’s motion to amend its drawing to a stylized
version of X-pipe or Campbell’s X-PIPE is moot.