DBC, LLCv.Renaissance Herbs, Inc.

Trademark Trial and Appeal Board

Dec 7, 2007

No. 91161992re (T.T.A.B. Dec. 7, 2007)

Mailed: December 7, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

DBC, LLC

v.

Renaissance Herbs, Inc.
_____

Opposition No. 91161992
to application Serial No. 78262554
on reconsideration
_____

Ronald Spuhler of McAndrews, Held & Malloy, Ltd. for DBC,
LLC.

Richard Sybert of Gordon & Rees LLP for Renaissance Herbs,
Inc.
______

Before Walters, Bucher and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

On October 22, 2007, the Board issued a final decision
in the above-captioned proceeding. In our October 22, 2007
decision, we granted opposer’s May 4, 2006 motion to extend
its testimony period, thus allowing opposer until July 8,
2006 in which to take the testimony deposition of its
officer Mr. Bryan Davis and submit notices of reliance upon
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91161992
2
the registrations resulting from its pleaded applications.1
However, opposer filed its notice of reliance upon
Registration No. 3105298 on July 21, 2006, and thereafter
filed its notice of reliance upon Registration No. 3104280
on August 23, 2006. As a result, we found that opposer’s
notices of reliance upon its resulting registrations were
untimely and thus would be given no further consideration.
We further deemed moot opposer’s motion to amend its notice
of opposition to plead ownership of such resulting
registrations, as well as applicant’s motion to strike
opposer’s untimely notices of reliance thereupon. In
consequence thereof, and further because opposer failed to
introduce any other admissible testimony or evidence that it
has made any use of its asserted mark, we dismissed the
opposition on the ground that opposer failed to establish
its priority, and thus could not prevail on its claim of
likelihood of confusion.
On November 20, 2007, opposer timely filed a motion for
reconsideration of that decision. See Trademark Rule
2.129(c). Applicant has timely filed a brief in opposition
thereto.2 See Id.

1 Opposer, in any event, did not take the testimony deposition of
Mr. Davis.

2 We note that the applicable Trademark Rules of Practice make no
provision for the filing of a reply brief on a request for
reconsideration of a decision issued after final hearing. See
Trademark Rule 2.129(c).
Opposition No. 91161992
3
In its motion for reconsideration, opposer “requests
that the Board treat the Motion to Amend as a request to
make the registrations of record by extending the testimony
period, based on the briefing in the May 2006 Motion for
extension of time, which the Board has granted” (motion, p.
5). In other words, opposer requests that we construe its
motion to amend the pleading as a further motion to make its
registrations of record, and consider such registrations to
be of record for purposes of establishing opposer’s priority
herein.
It has often been stated that the premise underlying a
request for rehearing, reconsideration, or modification
under Trademark Rule 2.129(c) is that, based on the evidence
of record and the prevailing authorities, the Board erred in
reaching the decision it issued. See TBMP §544 (2d ed. rev.
2004) and the authorities cited therein. The request may
not be used to introduce additional evidence,

nor should it
be devoted simply to a reargument of the points presented in
the requesting party's brief on the case. See Amoco Oil Co.
v. Amerco, Inc., 201 USPQ 126 (TTAB 1978). Rather, the
request normally should be limited to a demonstration that,
based on the evidence properly of record and the applicable
law, the Board's ruling is in error and requires appropriate
change. See, for example, Steiger Tractor Inc. v. Steiner
Corp., 221 USPQ 165 (TTAB 1984), different results reached
Opposition No. 91161992
4
on reh’g, 3 USPQ2d 1708 (TTAB 1984). Cf. In re Kroger Co.,
177 USPQ 715, 717 (TTAB 1973).
In this case, opposer points to no error on the part of
the Board in our October 22, 2007 decision on final hearing.
Rather, opposer disagrees with the result reached therein,
and reargues points previously raised in support of its
contention that we should consider its registrations to be
of record. As a result, we remain of the opinion that our
October 22, 2007 decision is correct.
Accordingly, opposer’s motion for reconsideration is
denied.