Hunter Industries, Inc.v.The Toro Company

Trademark Trial and Appeal BoardAug 29, 2014

No. 91203612re (T.T.A.B. Aug. 29, 2014)

This Opinion is Not a Precedent of the TTAB Mailed: August 29, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Hunter Industries, Inc. v. The Toro Company _____ Opposition No. 91203612 to application Serial No. 85067325 _____ Michael H. Jester, Esq., for Hunter Industries, Inc. Linda M. Byrne, Esq., of Crawford Maunu PLLC for The Toro Company. _____ Request for Reconsideration Before Kuhlke, Mermelstein and Greenbaum, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: On April 30, 2014, Applicant filed a Request or Reconsideration of the Final Decision issued on March 31, 2014, which was designated a precedent of this Board. In the Final Decision, we (1) granted Opposer’s motion to strike (a) Applicant’s trial exhibits A-FC and FF-FQ because Applicant submitted them via flash drive rather than on paper or electronically through ESTTA as Trademark Rule 2.126 requires, the parties’ ACR Agreement does not provide that a party may file documents via Opposition No. 91203612 - 2 - flash drive, and if there were such a provision, it could not be given effect because it would violate Trademark Rule 2.126(b), (b) Applicant’s trial exhibits FD and FE because Applicant did not timely disclose them, and (c) the declarations of seven distributors because Applicant had over-designated as confidential the identifying information of the declarants, and (2) sustained Opposer’s opposition to registration of Applicant’s mark under Section 2(d) of the Trademark Act. The purpose of reconsideration is to point out errors made by the Board in rendering its decision. Reconsideration may not be used to introduce into the record additional evidence or to reargue points presented in the requesting party’s brief on the case. See TBMP § 543 (June 2014) and cases cited therein. However, with one exception,1 Applicant simply has reargued the points previously raised in its brief on the case. In addition, Applicant improperly submitted the Board’s answers to ACR FAQs as Exhibit B to Applicant’s Request for Reconsideration. In making the evidentiary rulings in the Final Decision, we specifically addressed Applicant’s reading of the parties’ ACR Agreement and Trademark Rule 2.126, and Applicant’s arguments that the identifying information of the seven declarants is proprietary information that falls under the “Trade Secret/Commercially Sensitive” category in the Board’s Standard Protective Order. 1 Applicant now argues that “the flash drive storage method effectively equates to submitting the documents ‘on paper’” and that it is “analogous to a box containing hard copies of the documents.” Req. for Recon. at 8. Even assuming, arguendo, that a flash drive is analogous to a box, it is not a box and its contents are not paper. Trademark Rule 2.126 provides two methods for submissions to the Board: on paper or electronically through ESTTA. Applicant chose a third method, but that method is not specified in the Rule, and would cause an unnecessary administrative burden to the Board. Opposition No. 91203612 - 3 - The Board stands by the lengthy analysis of these issues in the Decision, and finds no error in the analysis or the evidentiary rulings.2 We are not sympathetic to Applicant’s request that we exercise discretion to promote fairness, or its argument that our evidentiary rulings were “highly prejudicial to Applicant.” Req. for Recon. at 10. As we discussed in the Final Decision, Applicant chose not to respond to two invitations from Opposer to discuss with the Interlocutory Attorney the issue of confidential distributor declarations. Instead, Applicant chose “to submit the seven declarations with the identifying information redacted. In so doing, applicant took a calculated risk, and cannot now claim prejudice if the Board grants the motion to strike and excludes the declarations.” Final Decision at 9. Finally, we agree with Opposer that “Applicant’s plea, on page 12 of its Request, that the Trademark Rules be amended to require ‘that each future ACR Agreement expressly state that all filings must be made via ESTTA’ only serves to highlight its noncompliance with Trademark Rule 2.126(b) in this case.” Opp. Resp. at 4. 2 As noted above, the Board struck Exhibits FD and FE for different reasons than Exhibits A-FC and FF-FQ. Applicant did not separately address Exhibits FD and FE in its Request for Reconsideration. Accordingly, they remain stricken. In any event, based on the manner in which Applicant described Exhibits A-FQ in its response (and the attachments) to the motion to strike, we determined that this evidence would not address the dispositive issues in this case and, therefore, consideration of the exhibits would have had no effect on the outcome of this case. We remain of that opinion. Opposition No. 91203612 - 4 - In sum, Applicant has not demonstrated that we erred in our evidentiary rulings, or that, based on the evidence properly of record and the applicable law, the Final Decision is in error. Decision: Applicant’s Request for Reconsideration is denied.