Central Mfg. Inc.v.Astec Industries, Inc.

Trademark Trial and Appeal Board

Feb 6, 2004

No. 91116821re (T.T.A.B. Feb. 6, 2004)

Mailed: 2/6/04
Hearing: Paper No. 63
July 23, 2003 GFR
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Central Mfg. Inc.
v.
Astec Industries, Inc.
_____
Opposition No. 91/116,821
to application Serial No. 75/564,303
filed on October 5, 1998
_____
On Request for Reconsideration
_____
Central Mfg. Inc., pro se.
David J. Hill and Alicia Brown Oliver of Chambliss, Bahner &
Stophel, P.C. for Astec Industries, Inc.
______
Before Walters, Bucher and Rogers,
Administrative Trademark Judges.
Rogers, Administrative Trademark Judge:
In an earlier opinion, this panel of the Board
dismissed opposer's notice of opposition both on its merits,
for opposer's failure to bear its burden of proof, and as a
sanction under Federal Rule 11. Opposer thereafter
requested disqualification and removal of the author of the
This Opinion is Not
Citable as Precedent
of the TTAB
Opposition No. 91116821
2
opinion, reassignment of the case to an entirely new panel,
and reopening of the case, commencing with opposer's
testimony period. The Chief Administrative Trademark Judge
denied each of these requests and returned the case file to
this panel for consideration of any remaining issues
presented by the request for reconsideration.
In our opinion dismissing the notice of opposition,
this panel decided a number of motions, either expressly
made or implicit in arguments made by the parties in their
final briefs. While opposer argues that almost every
decision made by the panel was in error, its main complaint
is that these decisions resulted from bias and prejudice.
There are few arguments that the panel made errors of law.
We shall, however, address whatever allegations of error we
can discern in the request for reconsideration.
The panel denied a motion under Federal Rule 15(b) by
opposer for leave to add a new claim to its notice of
opposition. In its request for reconsideration, at page 3,
opposer asserts that "a party can amend at any stage of the
proceeding." We do not find this unqualified statement to
be an accurate assessment of the law and see no legal error
in our denial of the motion to amend.
The panel also revisited an interlocutory ruling that a
Board attorney issued after applicant filed objections to
opposer's notice of reliance. The parties, in their briefs
Opposition No. 91116821
3
and at oral argument, clearly disagreed as to the import of
the order, which we considered to be unclear. Opposer
argues, at pages 5-6 and 12, that in reconsidering the
matter, and finding procedural insufficiencies in opposer's
notice of reliance, this panel effectively deprived opposer
of an opportunity to cure the insufficiencies that it would
have been afforded if applicant's motion to strike had been
made earlier. We do not find any legal error in our
handling of the matter, for reasons amply explained in the
earlier opinion. Further, we reiterate a point made
explicitly in our earlier opinion, specifically, even if we
had held as untimely applicant's motion to strike most of
the exhibits to the notice of reliance, applicant was free
to, and did, raise well-taken substantive objections to the
exhibits, demonstrating that the exhibits had little, if
any, probative value. Thus, even if we were to reverse our
decision on applicant's motion to strike, and were to
consider all the exhibits attached to opposer's notice of
reliance, our decision on the merits of the opposition would
not change.
Opposer also argues that the panel erred in finding
that opposer could not prove ownership of its pleaded
registrations by declaration alone. In support of its
argument, opposer asserts there is a conflict between Board
practice, as outlined in the TBMP, and a provision in the
Opposition No. 91116821
4
TMEP which explains that, in ex parte examination of an
application, an applicant can prove ownership of prior
registrations (not reflected in USPTO assignment records) by
use of a declaration. We see no legal error in our
adherence to standard Board practice regarding proof of
ownership of pleaded registrations; nor do we see any
conflict between the practice applicable in inter partes
proceedings and that which is applicable in ex parte
examination, which serve distinctly different purposes.
Opposer argues, for the first time in its request for
reconsideration, that it was prejudiced by insufficient
notice from applicant that applicant would take a testimony
deposition, because opposer was thereby "forced" to
participate by telephone. A request for reconsideration
cannot be used to raise new arguments. Moreover, the record
revealed that opposer voluntarily chose to participate in
the deposition by telephone.
The final assertion of legal error that we can find in
the request for reconsideration is that the panel failed to
recognize that applicant, in presenting arguments at the
oral hearing that there was no likelihood of confusion
between opposer's pleaded marks and applicant's mark, had
implicitly admitted opposer's ownership of the
registrations. We are not aware of any support for
opposer's argument, and opposer does not cite to any, that
Opposition No. 91116821
5
an applicant that argues against an opposer's allegations of
likelihood of confusion thereby admits opposer's ownership
of pleaded registrations and opposer's standing, when the
applicant has specifically argued that proof of standing was
not established.
Accordingly, we deny opposer's request for
reconsideration.