Leo Stoller dba Central Mfg and Central Mfg Co, joined as plaintiffsv.Sutech U.S.A., Inc.

Trademark Trial and Appeal Board

Oct 26, 2005

No. 91117894 (T.T.A.B. Oct. 26, 2005)

Hearing1:
May 10, 2005
Mailed: October 26, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

LEO STOLLER D/B/A CENTRAL MFG
and CENTRAL MFG CO., joined as party plaintiff
v.
SUTECH U.S.A., INC.
_______

Opposition No. 91117894
to Application No. 75626052
filed on January 22, 1999
_______

Leo Stoller, Pro Se, for himself and CENTRAL MFG CO., of
which he is president.

Robert E. Knechtel and David J. Hurley of Knechtel, Demeur &
Samlan for SUTECH U.S.A., INC.
_______

Before Walters, Holtzman and Rogers, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Leo Stoller and Central Mfg Co. have opposed the
application of Sutech U.S.A., Inc. to register the mark
STEALTH for “machinery, namely, lawn mowers,” in

1 Only Leo Stoller, on behalf of opposers, appeared at the oral hearing.

THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF
THE TTAB
Opposition No. 91117894
2
International Class 7. Registration of the proposed mark is
sought in standard character form, and the application is
based upon an allegation of a bona fide intention to use the
mark in commerce in connection with the identified goods.
As grounds for opposition, opposers assert that
applicant’s mark, when applied to applicant’s goods so
resembles opposers’ previously used and registered mark
STEALTH, in standard character format, for “lawn sprinklers”
and other “related” goods as to be likely to cause
confusion, under Section 2(d) of the Trademark Act.2 In
connection with this claim, opposers allege ownership of a
family of famous STEALTH marks for “a range of goods.”
In the notice of opposition,3 opposers also allege that
applicant’s mark “when used on or in connection with the
goods of the applicant, are (sic) merely descriptive or
deceptively misdescriptive of the goods” (paragraph 31);
that applicant fraudulently signed the application statement
of its bona fide intention to use the mark in commerce
because the mark was already in use in commerce by applicant
(paragraph 34); and that “applicant is not the owner of the
mark for which the registration is requested” (paragraph
45).

2 The Board found opposer’s dilution claim to be insufficient and
opposer did not submit a proper dilution claim within the period granted
by the Board. Therefore, dilution is not an issue in this proceeding.

3 Opposer’s “Second Amended Notice of Opposition,” received June 4,
2002, is the operative pleading.
Opposition No. 91117894
3
Applicant, in its answer, denied the salient
allegations of the claim, except that applicant made certain
admissions, discussed below, with respect to opposers’
paragraph no. 84; and applicant admitted that it used its
mark in connection with the identified goods “since at least
as early as July 1, 1998.”
The record consists of the pleadings; the file of the
involved application; various documents, including specified
responses of applicant to opposer’s interrogatories and
requests for admissions, and the affidavit of Mr. Yuning
Zhang, applicant’s vice president, all made of record by
applicant’s notice of reliance with opposer’s consent; and
various documents, including specified responses of opposer
to applicant’s interrogatories and requests for admissions,
and the discovery deposition by opposers of Mr. Yuning
Zhang, all made of record by opposer’s notice of reliance
with applicant’s consent.5 Both parties filed briefs on the

4 Applicant specifically denied opposers’ statements in paragraph 8
regarding Registrations Nos. 1717010 and 2227069, one of which applicant
asserts is canceled, and the other of which applicant asserts is owned
by another entity.

5 We note that usually a party may not rely on its own discovery
responses except to rebut or otherwise clarify portions of its discovery
responses submitted by the other party. In this case, such evidence is
submitted with consent and, thus, will be considered. However, while a
party’s response to an interrogatory is not without evidentiary value,
it is generally viewed as “self-serving.” General Electric Co. v.
Graham Magnetics Inc., 197 USPQ 690, 692 n.5 (TTAB 1977) citing Grace &
Co. v. City of Los Angeles, 278 F.2d 771, 776 (9th Cir. 1960), and
Beecham Inc. v. Helene Curtis Industries, Inc., 189 USPQ 647 (TTAB
1976). The trier of fact has discretion to decide what weight to give
to an interrogatory response. Fidelity & Deposit Co. of Maryland v.
Hudson United Bank, 653 F.2d 766, 777 (3d Cir. 1981); Marcoin, supra;
Opposition No. 91117894
4
case and an oral hearing, at which only opposers were
present, was held.
We put aside for the moment the pleaded ground of
priority and likelihood of confusion to address the myriad
other grounds asserted by opposer. We begin with the issues
of mere descriptiveness, fraud, and lack of ownership, each
of which was pleaded in the notice of opposition and
addressed by the parties at trial and in the briefs.
First, regarding mere descriptiveness, opposers’ claim
of mere descriptiveness rests on statements by Mr. Yuning
Zhang, in his discovery deposition, that he believed
applicant’s parent company chose the trademark STEALTH for
the identified goods because he believed that the front of
the so-identified lawnmower evoked the shape of a military
aircraft of that name. This is insufficient to establish
that the mark immediately conveys to purchasers information
concerning a significant quality, characteristic, function,
ingredient, attribute or feature of the product or service
in connection with which it is used, or intended to be used.
In re Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986);
In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). The

and Freed v. Erie Lackawanna Railway Co., 445 F.2d 619, 621 (6th Cir.
1971).
Additionally, opposer submitted documents that appear to be brochures
and packaging by notice of reliance. Such documents are not amenable to
submission by notice of reliance and are of no probative value because
the documents have not been properly identified or authenticated.

Opposition No. 91117894
5
opposition is dismissed as to opposers’ claim of mere
descriptiveness.
Second, regarding fraud, opposers contend that by
signing the application and verifying that it had a bona
fide intention to use the mark in commerce, applicant
committed fraud on the office because it was, in fact, using
its mark as early as July, 1998. There is no prohibition
against filing an intent-to-use application even though the
mark may be in use on or in connection with the identified
goods; and, in this case, the application is based upon
applicant’s statement of a bona fide intention to use the
mark in commerce and no statement of use has been filed.6
There is no evidence in the record establishing either a
false statement by applicant to the USPTO, or any intent on
applicant’s part to commit fraud on the USPTO. The
opposition is dismissed as to opposers’ claim of fraud.
Third, regarding opposers’ claim that applicant is not
the owner of the mark, opposers note the fact that applicant
is the subsidiary of a Chinese company and argue a number of
points regarding ownership of marks as between related

6 An exhibit introduced in connection with opposers’ discovery
deposition of applicant’s vice president, Mr. Yuning Zhang, appears to
be a statement of use signed by Mr. Zhang on March 14, 2000. However,
this appears to be a copy of a document from applicant’s or its
attorney’s files. This document could not be a misrepresentation to the
USPTO because such a document is not of record in this application file
at the USPTO. Moreover, considering this document as part of the record
in this opposition, there is no legal inconsistency with applicant’s
statement in its application filed January 22, 1999, of a bona fide
intention to use its mark in commerce and its statement that it has used
the mark in commerce since at least as early as July 1, 1998.
Opposition No. 91117894
6
companies and as between manufacturers and distributors.
While the record establishes that applicant is a subsidiary
of a Chinese company, it is the prerogative of such
companies to decide who shall own the mark and opposers have
not shown any facts establishing that applicant does not
possess the relevant control of the nature and quality of
the goods identified by the mark. Nor is there any basis in
this record for opposers’ claim that applicant should have
disclosed its relationship with its parent company in the
application. Further, Mr. Yuning Zhang’s statements
establish that applicant purchases the parts for, and
manufactures and sells to distributors, the goods identified
by the mark. There are no facts in this record sufficient
to even raise a suspicion that applicant is not the owner of
the mark. The opposition is dismissed as to opposers’ claim
that applicant is not the owner of the mark.
In their brief, opposers’ raise, for the first time,
several unpleaded grounds of opposition. Applicant did not
object and, in fact, addressed each of these grounds in its
brief. However, after reviewing opposers’ allegations, we
cannot discern any additional grounds for opposition that
are legally viable.
We note, first, that, as applicant contends, opposers’
allegation of functionality is completely irrelevant because
the subject matter in this case is a word mark shown in
Opposition No. 91117894
7
standard character form. The claim of functionality is
dismissed and has not been considered further.
Second, opposers make various claims challenging the
viability of the application due to alleged incorrect dates
of use, invalid specimens of use, and alleging, essentially,
that the mark in the drawing is a mutilation of the mark as
used in the specimens. These allegations are totally
inappropriate in this case. As previously stated, this
application is based on applicant’s allegation of a bona
fide intention to use the mark in commerce. It contains no
statement of use or specimens, so there cannot be a
misrepresentation with respect thereto in the application.
In their brief (p. 19), opposers “move … for leave to
amend its notice of opposition to conform to the said
evidence presented herein.” Not only is this “motion” too
vague to warrant consideration, but opposers present no
basis for making such a request at this late stage of the
proceeding, and the motion is therefore denied.
Finally, we turn to opposers’ ground of likelihood of
confusion and we find that opposers have not established the
threshold issue of priority through use or registration of
any mark.
In paragraph 8 of opposers’ amended notice of
opposition, opposers claim that opposers “hold rights
directly in” twenty-six federal trademark registrations
Opposition No. 91117894
8
which are listed therein.7 Opposers have not submitted
status and title copies of any of these registrations,
either with the original or amended notice of opposition8 or
during opposers’ trial period.
Regarding use of its pleaded marks, the only evidence
of record is a single customer affidavit by Mr. Ray Webber,
dated September 6, 2002. Mr. Webber made the following
statements, inter alia:
[H]e has been a customer of the Opposer since the
middle 1980’s. … [H]e has been purchasing STEALTH
branded products exclusively with the Opposer. …
[He] purchased lawn sprinklers from the Opposer in
1996. …

Mr. Webber’s declaration does not indicate the type of
“branded products” with which he associates the STEALTH
trademark, how many lawn sprinklers he purchased from
opposers, or whether the STEALTH trademark was used on or in
connection with the lawn sprinklers he purchased. This
single declaration is insufficient to establish opposers’
use of STEALTH as a trademark in connection with lawn
sprinklers or any other product or service.
In opposers’ discovery deposition of Mr. Yuning Zhang,
Mr. Stoller showed Mr. Zhang copies of at least one alleged
trademark registration and asked Mr. Yuning Zhang several

7 The paragraph also claims ownership of listed pending applications,
which have not been considered further because such applications have
not been made of record.

8 While the amended notice of opposition states that registration copies
are attached, no such submission was made.
Opposition No. 91117894
9
questions about it. Mr. Yuning Zhang was able only to read
what was on the page and he clearly stated that he had no
knowledge of any use of a STEALTH trademark other than
applicant’s mark on or in connection with any other product.
There is no statement by Mr. Yuning Zhang in this deposition
that would constitute an admission by applicant as to the
use or registration by opposers of their pleaded marks.
In its answer, applicant responded, inter alia, to
paragraph 8 of the notice of opposition by denying opposers’
ownership of listed Registration Nos. 1717010 and 2227069,
and by stating the following:
Applicant admits the allegations contained in
Paragraph 8 with respect to the particular
trademarks corresponding to a particular
registration and/or serial number. Applicant
otherwise denies each and every remaining
allegation contained in Paragraph 8.

This statement is not an admission of either ownership or
status of any of opposers’ pleaded registrations. Applicant
merely admits that the listed registration numbers
correspond to the respective marks identified therewith in
the list. Were the Board to consider this an admission,
which we do not, it would at most be an admission of
ownership, but not status, of the pleaded registrations.
Therefore, opposers have established in this record
neither use of the pleaded marks nor ownership of any
validly subsisting federal registrations. We conclude that
opposers have not established either standing or priority
Opposition No. 91117894
10
and, thus, opposers’ claim of likelihood of confusion must
fail.
Decision: The opposition is dismissed.