Aesgen, Inc.

Trademark Trial and Appeal Board

Sep 6, 2006

No. 76500182re (T.T.A.B. Sep. 6, 2006)

THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Mailed:
September 6, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Aesgen, Inc.
________

Serial No. 76500182
_______

Request for Reconsideration
_______

Charles E. Steffey of Schwegman Lundbert Woessner & Kluth,
P.A. for Aesgen, Inc.

Kim Saito, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney).
_______

Before Bucher, Drost and Cataldo, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
The Board, in a final decision dated July 25, 2006,
affirmed the refusal to register applicant’s PROTORIS mark
under Section 2(d) of the Trademark Act. Applicant filed a
timely request for reconsideration (see Trademark Rule
2.144, 37 C.F.R. § 2.144), based solely on the assertion
that Aesgen, Inc. has recently concluded negotiations with
registrant resulting in a consent agreement between
applicant and the owner of the cited PROTEROS mark.
Generally, the premise underlying a request for
reconsideration is that, based upon the evidence of record
and the applicable legal authorities, the Board erred in
reaching the decision it issued. The request may not be
used to introduce additional evidence. Accordingly, the
recently concluded consent agreement1 submitted with
applicant’s request for reconsideration is untimely and has
been given no consideration. See Trademark Rule 2.142(d),
37 C.F.R. § 2.142(d).
Decision: Accordingly, the final decision dated July
25, 2006 stands. Applicant’s request for reconsideration
is hereby denied. Nonetheless, applicant’s time for filing
an appeal, or for commencing a civil action for review of
the Board’s decision, will expire two months after the date
on which this order issued. See Trademark Rule
2.145(d)(1), 37 C.F.R. § 2.145(d)(1).
Finally, applicant’s petition to the Director to
reopen prosecution of the application is being referred to
the Office of the Commissioner for Trademarks.

1 Given just how critical a factor a consent agreement with
registrant must be in making a likelihood of confusion
determination, we should note for applicant’s benefit that the
better practice would have been to have requested suspension of
the appeal pending ongoing negotiations with registrant over this
agreement.