ESPN, Inc.v.Kurt Luttermoser

Trademark Trial and Appeal Board

Nov 17, 2006

No. 91158096re (T.T.A.B. Nov. 17, 2006)

November 17, 2006
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

ESPN, Inc.
v.
Kurt Luttermoser
_____

Opposition No. 91158096
_____

Motion for Reconsideration

Robert L. Raskopf, Claudia T. Bogdanos and Jessica A. Rose
of Quinn Emanuel Urquhart Oliver & Hedges, LLP for ESPN,
Inc.

Jeffrey H. Greger of Lowe Hauptman Gilman & Berner LLP for
Kurt Luttermoser.
______

Before Hairston, Bucher and Zervas, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Opposer has filed a motion for reconsideration of the
Board’s July 7, 2006 decision dismissing its opposition to
registration of applicant’s mark. Applicant has filed a
brief in response thereto and opposer has filed a reply
brief.
Opposer argues that the Board erred in (1) sustaining
applicant’s objections to certain of the rebuttal testimony
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Opposition No. 91158096
2
of opposer’s witness Ms. Campbell; and (2) failing to find
that opposer’s X GAMES mark is famous for likelihood of
confusion purposes.
Opposer’s arguments concerning the evidentiary
objections amount to little more than a rehash of the
arguments previously made in opposer’s reply brief on the
case. We find no error in our decision in this regard.
Insofar as opposer argues that the Board erred in
failing to find that opposer’s X GAMES mark is famous for
likelihood of confusion purposes is concerned, we clarify
our decision in this regard as follows. So as to be clear
on this matter, from the evidence properly of record, we
find that opposer’s X GAMES mark has achieved a degree of
recognition as a mark for action sports competitions.
Nonetheless, we cannot conclude on this record that
consumers have been so exposed to the X GAMES mark, or that
they are so aware of it, that it can be considered a famous
mark.
Lastly, as we stated, even if we had found that
opposer’s mark was famous, we would still find no likelihood
of confusion in this case based on the dissimilarities in
the marks.
In view of the foregoing, opposer’s motion for
reconsideration is denied.