Gilbert E. Silvav.Professional Drywallers, Inc.

Trademark Trial and Appeal Board

Jul 31, 2001

No. 91111922 (T.T.A.B. Jul. 31, 2001)

7/31/01
Paper No.
12

DEB

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Gilbert E. Silva d.b.a. GES Industries Corporation
v.
Professional Drywallers, Inc.
_____

Opposition No. 111,922
to application Serial No. 75/180,787
filed on October 15, 1996
_____

Gilbert E. Silva, Pro se.

Ronald Todd, President of Professional Drywallers, Inc.,
Pro se.
______

Before Simms, Bucher and Holtzman, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Gilbert E. Silva has opposed the application of
Professional Drywallers, Inc., to register the mark
ERASE-A-HOLE for “handheld drywall plaster applicator
stick used to fill holes and cracks in drywall, wood,
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 111,922
- 2 -
block, stucco and other cementious materials,”1 in
International Class 19.
In the notice of opposition, opposer asserts use of
the mark PLUG-A-HOLE, in connection with its kits for
repairing holes in walls and doors, since 1992 and use in
commerce since 1993. Opposer also pleads ownership of
Registration No. 2,074,605, issued June 24, 1997 on the
Supplemental Register, covering this mark for “wall and
door repair kit comprised of disks made of fiberboard for
use in repairing holes.” Finally, opposer asserts that
applicant’s mark ERASE-A-HOLE as used in connection with
applicant’s goods so resembles opposer’s previously used
and registered mark PLUG-A-HOLE, as to be likely to cause
confusion, to cause mistake or to deceive.
In its answer, applicant has denied the essential
allegations of the notice of opposition. As “affirmative
defenses,” applicant asserts that opposer has failed to
state a claim, that there is no likelihood of confusion,
that opposer will not be damaged by this registration,
and that applicant will be injured by granting opposer’s
notice of opposition.

1 Application Serial Number 75/180,787, filed on October 15,
1996, based upon applicant’s claim of use in commerce as of
November 15, 1993.

Opposition No. 111,922
- 3 -
Beyond the pleadings and the file wrapper of the
involved application, the record in this opposition is
sparse indeed. Although opposer has claimed ownership of
a subsisting Federal registration of its mark, and
clearly wanted to rely upon the registration in this
inter partes proceeding before the Board, the
registration was never made of record. See 37 CFR
§2.122(d) and TBMP §703.02(a). There appears to have
been no testimony by any witnesses (See 37 CFR §2.123(e)
and TBMP §713.08) and no notices of reliance (See e.g.,
37 CFR §2.122) or any other form of evidence. In fact,
although opposer has submitted something called
“Enumerated Grounds for Notice of Opposition” with its
own exhibits, this has no evidentiary value. In short,
the parties appear to have conducted no trial at all.
Accordingly, because opposer has failed properly to
make its Federal trademark registration of record and has
not provided any other evidence consistent with the
Federal Rules of Civil Procedure or the Trademark Rules
needed to meet its burden of proof on the factors
relevant to the issue of likelihood of confusion, this
case is dismissed with prejudice.
Decision: The opposition is dismissed.