KCK International, Inc.

Trademark Trial and Appeal Board

Nov 28, 2011

No. 77820964re (T.T.A.B. Nov. 28, 2011)

Mailed: November 28, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re KCK International, Inc.
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Serial No. 77820964
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Request for Reconsideration
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Felix Wu of the Law Office of Felix Wu for KCK
International, Inc.

Dawn Feldman Lehker, Trademark Examining Attorney, Law
Office 111 (Robert L. Lorenzo, Managing Attorney).
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Before Grendel, Ritchie and Kuczma,1 Administrative
Trademark Judges.

By Kuczma, Administrative Trademark Judge:

On November 9, 2011, applicant filed2 a request for
reconsideration of the Board’s decision issued on September

1 Administrative Judge Walters, who was on the panel that issued
the final decision in this case, has retired from Federal
service. Judge Kuczma is substituted in her place. See In re
Bose Corp., 772 F.2d 866, 227 USPQ 1, 4 (Fed. Cir. 1985).

2 The request for reconsideration was submitted by Mohammad
Tavakkoly, identified as CEO of applicant. It is unclear whether
applicant continues to be represented by counsel. However,
counsel has not filed a request to withdraw and the Board has
forwarded copies of this order to both applicant’s CEO and its
designated counsel.
THIS DISPOSITION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77820964
2
27, 2011, affirming the refusal to register applicant’s
mark PERMASEAL (Stylized) under § 2(d) of the Trademark Act
on the ground that applicant’s mark is likely to cause
confusion with the standard character mark PERMA SEAL,
shown in Registration No. 3409831, owned by Colorado
Automotive Supply and Equipment, Inc. A copy of a document
entitled “Consent Agreement” accompanied applicant’s
request.
Applicant requests reconsideration of the Board’s
decision based on the Consent Agreement which was entered
into between applicant and the owner of the registration
cited as the basis for the refusal of registration under
§ 2(d), namely, Colorado Automotive Supply and Equipment,
Inc. Applicant states the consent was “recently
obtain[ed]” and “believes” that the Consent Agreement would
likely be considered by the Examining Attorney as
sufficient evidence to withdraw the refusal to register its
mark. Applicant requests that the Board reconsider its
decision and “remand the application to the Examiner for
review and reconsideration.”
As set forth in Rule 2.144 of the Trademark Rules of
Practice, 37 C.F.R. § 2.144, any request for
reconsideration must be filed “within one month from the
date of the decision.” Inasmuch as our decision was dated
Ser No. 77820964
3
September 27, 2011, any request for reconsideration was due
by October 27, 2011. Because applicant’s request for
reconsideration was not filed with the Board until November
9, 2011, it is untimely.
Rule 2.144 also provides that the Board may extend the
time for filing a request for reconsideration upon a
showing of “sufficient cause.” The rule, however, provides
no opportunity to seek reopening of the time to request
reconsideration once the deadline for doing so has passed.
Moreover, applicant has offered no explanation for its
significant delay in submitting the Consent Agreement,
which was entered into on August 22, 2011, more than one
month prior to the date of our decision in this case.
Even if applicant had timely requested
reconsideration, once an application has been decided on
appeal by the Board, examination will not be reopened
except for entry of a disclaimer. See Rule 2.142(g), 37
C.F.R. § 2.142(g). The Board would not examine the consent
agreement, which is evidence bearing on the question of
registrability that would have to be considered in the
first instance by the examining attorney. This is why it
was imperative for applicant to file it at a time – prior
to issuance of a final decision – when the Board could have
Ser No. 77820964
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suspended the appeal and remanded the application and
consent to the examining attorney for review.
In view of the foregoing, applicant’s request for
reconsideration of the Board’s decision is DENIED, and the
decision of September 27, 2011 stands.
Recognizing that time is of the essence, applicant is
directed to Rule 2.145(d) of the Trademark Rules of
Practice, 37 C.F.R. § 2.145(d), regarding the time for
filing an appeal of the Board’s September 27, 2011,
decision. Also see, §§ 902 and 903 TBMP.
It is noted that because the request for
reconsideration was not timely filed, the time for filing a
notice of appeal or commencing a civil action has not been
stayed and runs from the date of the Board’s September 27,
2011 decision. See, Rule 2.145(d) and § 1219.01 TBMP. It
is further noted that Rule 2.145(e) and § 902.02 TBMP
address the requirements for requesting an extension of
time for filing an appeal or commencing a civil action, and
any such request for extension must by sought through the
office of the USPTO Solicitor, not through the Board.
It is also noted that on appeal to the Court of
Appeals for the Federal Circuit, the record is limited to
that which was before the Board when it issued its final
decision on the appeal, i.e., the record will not include
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5
the consent agreement. Apart from the options of judicial
review by appeal or commencement of a civil action,
applicant may file a new application and make the consent
agreement of record during prosecution of such application.
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