Magnadyne Corporationv.Movie-vision, Inc.

Trademark Trial and Appeal Board

Sep 8, 2009

No. 91175280re (T.T.A.B. Sep. 8, 2009)

Mailed:
September 8, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Magnadyne Corporation
v.
Movievision, Inc.
_____

Opposition No. 91175280
to application Serial No. 76655958
filed on March 2, 2006
_____

REQUEST FOR RECONSIDERATION

Hope V. Shovein of Brooks Kushman P.C. for Magnadyne
Corporation.

Movievision, Inc. pro se.
______

Before Grendel, Mermelstein and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On July 31, 2009, Movievision, Inc. (“applicant”) filed
a request for reconsideration from the April 9, 2009
decision sustaining the opposition and refusing
registration. Applicant had filed an intent-to-use
application for the mark MOVIEVISION and Design, shown
below, for services ultimately identified as “pay-per-view
television transmission services featuring recently released
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition Nos. 91175280
2
movies in English, Spanish, Cantonese, and Russian via
cable,” in Class 38.

Magnadyne Corporation (“opposer”) filed a notice of
opposition against the registration of applicant’s mark on
the ground of priority of use and likelihood of confusion
pursuant to Section 2(d) of the Trademark Act of 1946, 15
U.S.C. §1052(d). Specifically, opposer alleged that it has
used and that it is the owner of two federally-registered
marks for MOVIE VISION, in standard character form,1 and in
a logo format, shown below,2 both for “video entertainment
systems for vehicles; namely, electronic audio, video and
video game components in the nature of video cassette
players, digital video disk players, video game players and
television receivers with video display devices,” in Class
9, and that applicant’s mark is likely to cause confusion
with opposer’s marks.

1 Registration No. 2518066, issued December 11, 2001; Section 8
and 15 affidavits accepted and acknowledged. Applicant
disclaimed the exclusive right to use the word “movie.”
2 Registration No. 2520719, issued December 18, 2001; Section 8
and 15 affidavits accepted and acknowledged. Applicant
disclaimed the exclusive right to use the word “movie.”
Opposition Nos. 91175280
3
In its request for reconsideration, applicant
essentially reargued its case addressing the Board’s
analysis and findings of facts. In essence, the request for
reconsideration was akin to a brief in opposition to the
decision. However, the premise of a request for
reconsideration is that, based on evidence of record and the
prevailing authorities, the Board erred in reaching its
decision. In other words, the request for reconsideration
should be limited to a demonstration that based on the
evidence of record and the applicable law, the Board’s
ruling is in error and must be changed. See TBMP §§543 and
1219.01 (2nd ed. rev. 2004). Other than disagreeing with
the decision and rearguing its case with some additional
arguments, applicant did not specifically point out
erroneous findings of fact or any misapplication of the law.
With respect to the similarity of the marks, applicant
utilized a side-by-side analysis of the marks despite the
admonition that a side-by-side comparison is not the
appropriate test. In addition, applicant asserted, without
any evidence, that the term “Movie Vision” or “Movievision”
“is a generic mark” presumably for electronic equipment;
however, applicant did not identify the specific class of
products or services to which it was referring (e.g., pay-
per-vision television or video entertainment services). In
any event, applicant’s generic argument constitutes a
Opposition Nos. 91175280
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collateral attack on the validity of opposer’s standard
character registration which we cannot consider absent a
counterclaim to cancel. Trademark Rule 2.106(2), 37 CFR
§2.106(2).
With respect to the similarity or dissimilarity of the
goods and services, applicant improperly contends that
“Opposer’s clientele are specific industry professional and
resellers as opposed to the general public.” However,
opposer’s description of goods is unrestricted and it is
common knowledge that “video entertainment systems” may be
purchased by ordinary, average consumers some of whom may be
pay-per-view movie subscribers. Canadian Imperial Bank of
Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813,
1815 (Fed. Cir. 1987) (the Board must determine likelihood
of confusion based on the goods set forth in the application
and the opposer’s registration, rather than on what any
evidence may show those goods to be); In re Linkvest S.A.,
24 USPQ2d 1716, 1716 (TTAB 1992) (because registrant’s goods
are broadly described, without any limitations, we must
presume that they would travel in the same channels of trade
normal for those goods and to all classes of consumers for
those goods).
After careful review of the evidence of record, the
April 9, 2009 decision and applicant’s request for
reconsideration, we find that the decision was correct and
Opposition Nos. 91175280
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that we did not make any erroneous findings of fact or
incorrectly apply the appropriate authorities.
Decision: Applicant’s request for reconsideration is
denied.