Cron

Trademark Trial and Appeal Board

May 27, 2009

No. 76690407re (T.T.A.B. May. 27, 2009)

Mailed:
May 27, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cron

REQUEST FOR RECONSIDERATION
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Serial No. 76690407
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Myron Amer of Myron Amer, P.C. for Lisa Cron.

Laurie Mayes, Trademark Examining Attorney, Law Office 101
(Ronald Sussman, Managing Attorney).
_______

Before Rogers, Zervas and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Lisa Cron (“applicant”) filed an intent-to-use
application to register the mark THUMBPRINT DELIGHTS, in
standard character form, for “cookies,” in Class 30.
Applicant disclaimed the exclusive right to use the word
“Thumbprint.”
In a decision mailed April 22, 2009, the Board
affirmed the refusal to register the application on the
ground that applicant’s mark is likely to cause confusion
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76690407
2
with the mark THUMB PRINT, in typed drawing form, for
“cookies” in Class 30.1
On May 20, 2009, applicant filed a request for
reconsideration of the April 22, 2009 decision. As grounds
for reconsideration, applicant contends that the registrant
is no longer in business and presumably that the
registrant’s mark is no longer in use. To support its
contention, applicant submitted the reporting letter of
Seymour Adler, a private investigator specializing in
intellectual property issues. Mr. Adler made the following
findings:
1. The registrant did not answer telephone calls;
2. The Office of the Illinois Secretary of State did
not have any record of the registrant;2 and,
3. Businesses located near the registrant’s address
report that the registrant has closed.
Applicant asserts that she is presenting this information
at this time because the Board affirmed the refusal to
register.

1 Registration No. 2254409, issued June 15, 1999. Sections 8 and
15 affidavits accepted and acknowledged.
2 Registrant is identified as a limited liability company
organized under the law of Delaware with an address in Blue
Island, Illinois.
Serial No. 76690407
3
In essence, applicant is arguing that the registrant’s
mark is no longer in use and, therefore, the registration
is invalid. However, so long as the cited registration has
not been canceled, it is treated as valid and it is
entitled to the statutory presumptions accorded a
registration. Section 7(b) of the Trademark Act, 15 U.S.C.
§1057(b), provides that a certificate of registration on
the Principal Register shall be prima facie evidence of the
validity of the registration, of the registrant’s ownership
of the mark and of the registrant’s exclusive right to use
the mark in commerce in connection with the goods or
services specified in the certificate. During ex parte
prosecution, an applicant will not be heard on matters that
constitute a collateral attack on the cited registration
(e.g., a registrant’s nonuse of the mark). See In re Dixie
Restaurants, 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997) (nonuse); Cosmetically Yours, Inc. v. Clairol Inc.,
424 F.2d 1385, 1387, 165 USPQ 515, 517 (C.C.P.A. 1970)
(abandonment); In re Peebles Inc. 23 USPQ2d 1795, 1797 n.5
(TTAB 1992) (registrant’s mark is descriptive); In re
Pollio Dairy Products Corp., 8 USPQ2d 2012, 2014-15 (TTAB
1988) (nonuse). Accordingly, applicant may not argue that
the mark in the cited registration is no longer in use or
Serial No. 76690407
4
that the mark has been abandoned, and applicant’s arguments
on those subjects may not be considered.3
Decision: Applicant’s request for reconsideration is
denied.

3 The accepted practice in circumstances such as those alleged by
applicant to exist here is to seek suspension of the application
and file a petition to cancel the cited registration on the
ground of abandonment.