Cold War Air Museum, Inc.v.The Cold War Museum, Inc. and Francis Gary Powers, Jr.

Trademark Trial and Appeal Board

Dec 2, 2008

No. 92047391re (T.T.A.B. Dec. 2, 2008)

Mailed: December 2, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Cold War Air Museum, Inc.
v.
The Cold War Museum, Inc. and Francis Gary Powers, Jr.
_____

Cancellation No. 92047391
_____

Request for Reconsideration
_____

W. Thomas Timmons, Esq., for Cold War Air Museum, Inc.

Katrina Edge and John H. Weber, of Baker & Hostetler LLP for
The Cold War Museum, Inc. and Francis Gary Powers, Jr.

_____

Before Seeherman, Drost, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Ritchie de Larena, Administrative Trademark
Judge:

On October 20, 2008, the Board granted the petition
brought by Cold War Air Museum, Inc. to cancel “THE COLD WAR
MUSEUM” for “museum services,” in International Class 41,
registered to The Cold War Museum, Inc. on assignment from
Francis Gary Powers, Jr., on the ground that respondents’
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Request for Reconsideration
Cancellation No. 92047391
2
mark is merely descriptive, and respondents failed to show
it had acquired distinctiveness.
Respondents have timely filed a request for
reconsideration of the Board’s decision. In their request,
respondents argue that the Board’s decision is in error
because (1) the Board admitted evidence of Google search
results that should not have been allowed into the record;
(2) the Board gave undue weight to that evidence; and (3)
the Board should have accepted evidence from respondents’
application file into the record and thereby found the
requisite showing by respondents of acquired
distinctiveness.
With regard to respondents’ first contention, as stated
in the Board’s October 20, 2008 decision, it is because
respondents listed the Google search results in their
“Description of the Record” in respondents’ own brief that
the Board treated the search results as having been
stipulated into the record.
With regard to respondents’ second contention, as
stated in the Board’s October 20, 2008 decision, we
considered petitioner’s submitted Google definitions “for
the probative value that they may have, as discussed
herein.” We found that the Google definitions, along with
petitioner’s other evidence, showed that “’cold war’ is a
recognized term regarding a particular conflict between
nations in the latter half of the twentieth century.”
Request for Reconsideration
Cancellation No. 92047391
3
With regard to respondents’ third contention, as stated
in the Board’s October 20, 2008 decision, it was
respondents’ choice not to submit any evidence on their
behalf, including evidence from the application file. As we
stated on p. 11, quoting from our precedential caselaw:

While the application file is automatically part
of the record in an opposition proceeding by means
of Trademark Rule 2.122(b), the allegations made,
and documents and other things filed in connection
with the application, are not evidence in the
inter partes proceeding on behalf of the
applicant. See: Kellogg Co. v. Pack'em
Enterprises Inc., 14 USPQ2d 1545 (TTAB 1990),
aff'd, 21 USPQ2d 1142 (Fed. Cir. 1991); McDonald's
Corp. v. McKinley, 13 USPQ2d 1895 (TTAB 1989).
Accordingly, the materials submitted only in the
ex parte effort to establish registrability under
Section 2(f) of the Act were not considered in
reaching our decision in this opposition
proceeding.
British Seagull Ltd. v. Brunswick Corp., 28 USPQ2d
1197, 1200 (TTAB 1993), aff’d, 35 F.3d 1527, 32
USPQ2d 1120 (Fed. Cir. 1994).

In view of the foregoing, respondents’ request for
reconsideration is denied.