EmeraldBioagricul-ture Corporationv.Biosafe Systems, LLC

Trademark Trial and Appeal Board

Jun 28, 2006

No. 92042503re (T.T.A.B. Jun. 28, 2006)

Mailed:
28 June 2006
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Emerald Bioagriculture Corporation
v.
Biosafe Systems, LLC
_____

Cancellation No. 92042503
_______

Request for Reconsideration
_______

John C. Blattner of Butzel Long for Emerald Bioagriculture
Corporation.

Robert S. Smith, Esq. for Biosafe Systems, LLC.
______

Before Bucher, Drost, and Kuhlke, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On February 9, 2006, we granted Emerald Bioagriculture
Corporation’s (petitioner) petition to cancel respondent’s
(Biosafe Systems, LLC) registration (No. 2,765,685).
Respondent has now requested reconsideration of that
decision. The request for reconsideration on page 2, begins
“The Registrant’s trial brief included the following.”
Respondent then apparently quotes four pages from its brief
that sets out information concerning four cases: American
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Cancellation No. 92042503
2
Cyanamid Corp. v. Connaught Laboratories, 800 F.2d 306, 231
USPQ 128 (2d Cir. 1986) (“HibVAX" and HIB-IMUNE); Jaret
International Inc. v. Promotion in Motion, Inc., 826 F.
Supp. 69, 27 USPQ 1913 (E.D.N.Y. 1993) (SOUR PATCH KIDS and
SOUR JACKS); Small Business Assistance Corp. v. Clear
Channel Broadcasting Inc., 210 F.3d 278, 54 USPQ2d 1350 (5th
Cir. 2000) (SUMMER JAM and UNCLE SAM JAM); and General
Mills, Inc. v. Health Valley Foods, 24 USPQ2d 1270 (TTAB
1992) (FIBER 7 FLAKES and FIBER ONE). Respondent then adds
(Request for Reconsideration at 6-7) that “the board has a
duty to either (1) state on the record that the board is not
obligated to follow precedent of the TTAB or other courts,
(2) distinguish the cited cases or (3) follow the cases, it
is further respectfully submitted that the cited cases are
controlling and must be followed.”
We deny respondent’s request for reconsideration.
First, as respondent acknowledges, it has simply reproduced
the section of its opening brief, which was obviously found
unpersuasive in the first instance. A request for
reconsideration should not “be devoted simply to a
reargument of the points presented in the requesting party’s
brief on the case.” TBMP § 543 (2d. ed. rev. 2004).
Obviously, respondent’s request for reconsideration merely
copies its original argument and for that reason it does not
provide a reason to change the result in the original
Cancellation No. 92042503
3
decision. Second, in this case, the marks “would be
pronounced by many, if not most, prospective purchasers
virtually identically.” Slip op. at 6. The cited cases
involve marks that would not be pronounced virtually
identically and the only feature that these marks in the
cited cases had in common was a descriptive or generic term,
an issue not present in respondent’s case.
Applicant’s request for reconsideration, is denied.
The decision dated February 9, 2006 stands.