Brainworks, Inc.v.Brainworks LLC

Trademark Trial and Appeal Board

Oct 13, 2004

No. 91150456re (T.T.A.B. Oct. 13, 2004)

Mailed: October 13, 2004
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
Brainworks, Inc.
v.
Brainworks LLC
________
Opposition No. 91150456
_______
Request for Reconsideration
_______
Gerald G. Crutsinger of Crutsinger & Booth for Brainworks,
Inc.
Ken J. Pedersen of Pedersen & Company, PLLC for Brainworks
LLC.
_______
Before Simms, Chapman and Drost, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
The Board, in its decision, dated July 12, 2004,
determined certain evidentiary matters, and sustained the
opposition. Applicant, on August 12, 2004 (via a
certificate of mailing) timely filed a request for
reconsideration.
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91150456
2
Applicant contends that “the Board erred in allowing
the admissibility of Item 40, and, consequently, sustaining
the opposition based upon Item 40 being in the record.”
(Applicant’s request for reconsideration, p. 2.) Applicant
contends that this particular piece of evidence (a paperback
book published by opposer) was the only source for evidence
that opposer’s services involve handling persons with ADD;
and that that connection is what “drove the Board” (p. 2) to
the conclusion that the parties’ respective services are
related. Applicant continues to assert that the book is not
proper subject matter for entry into the record by way of
notice of reliance and must be excluded.
We disagree with applicant that the book (Item No. 40)
must be excluded. We explained in our previous decision
that Item Nos. 39 and 40 (each a paperback book published by
opposer) were admissible under Trademark Rule 2.122(e) as
printed publications; and we explained that they were
admissible only for what they show on their face. (See the
July 12, 2004 Board order, p. 5.)
In any event, it is clear throughout our July 12, 2004
decision that Item No. 40 was neither the sole basis for our
factual finding regarding the parties’ respective services,
nor for our legal finding of a likelihood of confusion.
We have carefully reviewed this matter, and inasmuch
as the Board finds no error in our July 12, 2004 decision,
Opposition No. 91150456
3
applicant’s request for reconsideration is denied. The
decision previously issued by the Board stands; and the
opposition is sustained.