AGCO Corp.v.Scott Snyder

Trademark Trial and Appeal Board

May 28, 1999

No. 92025003 (T.T.A.B. May. 28, 1999)

Paper No. 16
RLS/cv
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB May 28, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
AGCO Corporation
v.
Scott Snyder
_____
Cancellation No. 25,003
_____
Michael D. Hobbs, Jr. of Troutman Sanders LLP for AGCO
Corporation.
Scott Snyder, pro se.
____
Before Simms, Quinn and Hairston, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
AGCO Corporation (petitioner) has sought cancellation
of Registration No. 1,928,690, issued October 17, 1995, for
the mark FARMHAND for consultation services in the field of
agricultural information, namely, recommending proper usage
of agricultural chemicals, fertilizers and seed. The
Cancellation No. 25,003
2
registration is held by Scott Snyder (respondent). In the
petition for cancellation, petitioner asserts ownership of
Registration No. 963,394, issued July 10, 1973 (renewed),
for the mark FARMHAND for "agricultural and material-
handling equipment—namely, loaders [and] grinder-mixer
mills.” In the petition for cancellation, petitioner
asserts use through its predecessor-in-interest since as
early as September 1940. Petitioner alleges that
respondent's use of his registered mark is likely to cause
confusion with petitioner's mark. The petition is
accompanied by a status and title copy of the pleaded
registration showing ownership in petitioner and current
validity. In his answer, respondent denied the essential
allegations of the petition.
During the course of this proceeding, petitioner filed
a motion for summary judgment along with certain materials,
including respondent's answers to petitioner's discovery
requests and a declaration of its vice president and
general counsel, Michael Swick. On November 6, 1997, the
Board denied petitioner's motion for summary judgment,
concluding that there were genuine issues of material fact
as to the channels of trade of the respective goods and
services, the nature and extent of any relationship or
connection between petitioner's goods and respondent's
Cancellation No. 25,003
3
services, and the appropriate class of consumers for
petitioner’s goods. The Board reset trial dates.
On the last day for submitting testimony and evidence,
petitioner filed a "brief in support of cancellation." In
this brief, petitioner refers to a number of items which it
apparently thought were of record. For example, petitioner
refers to the declaration of Mr. Swick, submitted in
connection with its motion for summary judgment.
Petitioner also refers to respondent’s discovery responses
in a number of instances. However, evidence submitted in
connection with a motion for summary judgment is of record
only for purposes of that motion. See Trademark Rule
2.127(e)(2) and TBMP §528.05(a). Indeed, in its ruling on
petitioner’s motion for summary judgment, the Board noted
in a footnote that certain materials were being considered
for purposes of ruling on that motion only. For purposes
of trial, the summary judgment evidence does not form part
of the evidentiary record to be considered by the Board at
final hearing unless it is properly introduced in evidence
during the appropriate trial period. Id.
Here, petitioner took no testimony, and the only
evidence of record is petitioner’s pleaded registration.
During petitioner's testimony period, petitioner only filed
Cancellation No. 25,003
4
its brief. The only evidence of record, therefore, is
petitioner’s registration.
During his testimony period, respondent, then acting
pro se, submitted a one-page letter arguing that confusion
is not likely because petitioner's farm equipment is
different from respondent's consulting services.
Respondent submitted no evidence and took no testimony.
During petitioner's rebuttal testimony period, petitioner
filed a one-page response denominated "Petitioner’s
Rebuttal Testimony in Support of Cancellation."
Because petitioner's registration long predates any
date upon which respondent may rely, there is no question
that petitioner has priority in this case. Also, the marks
of the parties are identical. The only question before us
is whether, on this record, petitioner has established, by
its registration alone, a sufficient relationship between
its goods and respondent's services such that consumers
would believe that the respective goods and services come
from the same source. We find that petitioner has failed
to meet its burden of proof.
While petitioner argues that the public will assume
that a manufacturer of farm equipment will also provide
consultation services relating to farming activities, there
is simply no evidence to support this statement. While it
Cancellation No. 25,003
5
is true that the respective goods and services may, of
course, be offered to the same individuals--farmers--we do
not believe that this fact alone is sufficient for us to
conclude that those individuals will believe that
respondent’s consultation services relating to agricultural
chemicals, fertilizers and seed offered under the mark
FARMHAND emanate from or are sponsored by the source of
loaders and grinder-mixer mills. If there were evidence of
record, such as testimony that petitioner or other farm
equipment manufacturers offered both farm equipment and
consultation services of the nature that respondent offers,
or other evidence tending to support the argument that
potential consumers would associate respondent’s consulting
services with petitioner’s loaders and grinder-mixer mills,
then we may have reached a different conclusion.
Similarly, while petitioner maintains that it has
fifty years of continuous use of its pleaded mark and that
its mark is "extremely well-known" (brief, 2) and is one of
the best known in the agricultural industry, there is
simply no support in this record to establish those facts.
Finally, while petitioner asserts that respondent's conduct
evidences "willful bad faith intent to create confusion"
(brief, 13), this record is barren of evidence with respect
to any bad faith on respondent's part. We conclude that
Cancellation No. 25,003
6
petitioner has failed to meet its burden of proof on the
issue of likelihood of confusion.
We should point out that, had we construed
petitioner’s brief as a “notice of reliance” on material
previously submitted that is subject to reliance by notice
(such as respondent’s discovery responses),1 we would have
reached the same result. That is to say, there is nothing
in those responses which would cause us to believe that
consumers of the respective goods and services are likely
to believe that petitioner is the source of respondent’s
services.2

1 See Trademark Rule 2.120 (j)(3)(i).
2 Respondent’s discovery responses reveal the following information and
admissions. With respect to his services, respondent indicates that he
provides services such as supplying recommendations on fertilizers,
pesticides, calibrations for sprayers and planters, and scouting fields
for weeds, insects and other growing problems. Respondent states that
his services are solicited by contacting growers by means of computer,
mailers, radio and newspaper advertisements, and agents. Respondent
says that his services are offered to customers that own agricultural
equipment including those that may own petitioner’s FARMHAND
agricultural equipment. Respondent indicates that he first used his
mark on December 14, 1993, in connection with his services. Concerning
petitioner’s use, respondent admits that petitioner’s use preceded
respondent’s registration and that loaders and grinder-mixer mills are
used in the agricultural industry. Respondent states that he is aware
of no instances of actual confusion. (The Swick declaration is not
subject to reliance by notice.)
Cancellation No. 25,003
7
Decision: The petition for cancellation is dismissed
with prejudice.
R. L. Simms
T. J. Quinn
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial
and Appeal Board