Drowning Pool LLCv.Drowning Pool

Trademark Trial and Appeal Board

Jan 7, 2008

No. 91154398re (T.T.A.B. Jan. 7, 2008)

Mailed: January 7, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Drowning Pool LLC

v.

Drowning Pool
_____

Opposition No. 91154398
to application Serial No. 76287792
on Reconsideration
_____

J. Rogers Lunsford III of Smith, Gambrell & Rusell, LLP for
Drowning Pool, LLC.

Gordon E. Gray III of Gray Law Firm for Drowning Pool.
______

Before Quinn, Drost and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

On July 11, 2007, the Board issued a final decision in
the above-captioned proceeding. In that decision, we
sustained the opposition on the grounds that opposer
possessed standing to bring its opposition to registration
of the involved mark as well as a proprietary interest in
its asserted DROWNING POOL mark; that applicant abandoned
the mark DROWNING POOL for musical sound recordings and live
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91154398
2
performances; and that, as a result, applicant does not
presently possess rights in the DROWNING POOL mark.
On August 10, 2007, applicant timely filed a motion for
reconsideration of that decision. See Trademark Rule
2.129(c). Opposer has timely filed a brief in opposition
thereto. See Id.
In its motion for reconsideration, applicant asserts
that our July 11, 2007 decision is in error for the
following reasons:
(1) “The Board erred by failing to identify when
Opposer’s alleged standing arose and
therefore fails to support its holding”
(request for reconsideration, p. 1, emphasis
in original);
(2) “The Board erred by accepting fraudulent
declarations and testimony from Opposer and
not terminating the opposition for fraud”
(Id.); and
(3) “The Board erred by failing to give weight to
sales made by Applicant’s record label and
finding abandonment contrary to the specific
terms of 15 U.S.C. § 1127” (Id. at 2).
It has often been stated that the premise underlying a
request for rehearing, reconsideration, or modification
under Trademark Rule 2.129(c) is that, based on the evidence
Opposition No. 91154398
3
of record and the prevailing authorities, the Board erred in
reaching the decision it issued. See TBMP §544 (2d ed. rev.
2004) and the authorities cited therein. The request may
not be used to introduce additional evidence,

nor should it
be devoted simply to a reargument of the points presented in
the requesting party's brief on the case. See Amoco Oil Co.
v. Amerco, Inc., 201 USPQ 126 (TTAB 1978). Rather, the
request normally should be limited to a demonstration that,
based on the evidence properly of record and the applicable
law, the Board's ruling is in error and requires appropriate
change. See, for example, Steiger Tractor Inc. v. Steiner
Corp., 221 USPQ 165 (TTAB 1984), different results reached
on reh’g, 3 USPQ2d 1708 (TTAB 1984). Cf. In re Kroger Co.,
177 USPQ 715, 717 (TTAB 1973).
We address each of applicant’s arguments in turn. With
regard to applicant’s first contention, in our July 11, 2007
decision we found that, based upon the testimony and
evidence of record and in accordance with the relevant
authorities, opposer possesses both a real interest in this
proceeding and a reasonable basis for its belief of damage
and, therefore, possesses standing to bring this opposition.
Implicit in that finding is that opposer possessed the
requisite standing to bring this proceeding at the time it
was commenced. With regard to applicant’s second
contention, in our July 11, 2007 decision we noted the
Opposition No. 91154398
4
parties’ numerous evidentiary objections and found that none
of them were outcome determinative. We further indicated
that the testimony and evidence submitted by both parties
would be accorded such probative value as was merited
bearing in mind the various objections thereto. With regard
to applicant’s third contention, it is noted that sales of
applicant’s music by its distributor was discussed – and
found to be insufficient - in that portion of our July 11,
2007 order addressing applicant’s attempts to overcome the
prima facie showing that applicant had abandoned the
DROWNING POOL mark. Finally, we note that applicant relies
upon the same authorities in its request for reconsideration
that were found unpersuasive in its brief on the merits of
the case.
Thus, applicant points to no error on the part of the
Board in our July 11, 2007 decision on final hearing but
rather expresses disagreement with the result reached
therein, and reargues points previously raised in support of
its position. As a result, we remain of the opinion that
our July 11, 2007 decision is correct.
Accordingly, applicant’s motion for reconsideration is
denied.