Magnadyne Corporationv.Movievision, Inc.

Trademark Trial and Appeal Board

Jul 21, 2010

No. 91175280re (T.T.A.B. Jul. 21, 2010)

Mailed:
July 21, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Magnadyne Corporation
v.
Movievision, Inc.
_____

Opposition No. 91175280
to application Serial No. 76655958
filed on March 2, 2006
_____

SECOND REQUEST FOR RECONSIDERATION

Hope V. Shovein of Brooks Kushman P.C. for Magnadyne
Corporation.

Movievision, Inc. pro se.
______

Before Grendel, Mermelstein and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On July 31, 2009, Movievision, Inc. (“applicant”) filed
a request for reconsideration from the April 9, 2009
decision sustaining the opposition and refusing
registration. In an order dated September 8, 2009, the
Board denied applicant’s request for reconsideration on the
ground that applicant merely reargued its case and did not
identify any errors in the Board’s analysis and findings of
facts. However, in its order, the Board addressed
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition Nos. 91175280
2
applicant’s arguments regarding the similarity of the marks
and the similarity of the goods and services. The Board
reached the following conclusion:
After careful review of the evidence of
record, the April 9, 2009 decision and
applicant’s request for reconsideration,
we find that the decision was correct
and that we did not make any erroneous
findings of fact or incorrectly apply
the appropriate authorities.

On November 9, 2009, applicant filed a document
entitled a notice of appeal. In the document, applicant
stated that it “hereby appeals to the Trademark Trial and
Appeal Board from the decision of the Trademark Examining
Attorney refusing registration after Reconsideration.”1
On January 11, 2010, applicant filed a request for an
extension of time to file its opening appeal brief.
On February 12, 2010, applicant filed its opening
appellate brief. Through this brief, applicant explains
that it “appeals the Board’s decision denying her motion to
reconsider refusing registration and sustaining opposition
to publication.” It is applicant’s position that the Board
improperly refused to consider new evidence that applicant
submitted with its request for reconsideration.
We construe applicant’s “notice of appeal” to be a
request for reconsideration from the Board’s decision

1 It appears to us that applicant may have confused the ex parte
examination of its trademark application with this opposition
proceeding.
Opposition Nos. 91175280
3
denying applicant’s first request for reconsideration.
Because applicant has requested the Board to review its
previous order, applicant’s document is a request for
reconsideration and not a notice of appeal. A notice of
appeal from a decision of the TTAB must be filed with the
Director of the USPTO, as well as the Court of Appeals (and
the appellant must pay the fee for appeal to the Court).
Trademark Rule 2.145(a)(1)-(2).
Applicant’s second request for reconsideration is
denied. First, applicant’s second request for
reconsideration was not timely filed.
Any request for rehearing or
reconsideration or modification of a
decision issued after final hearing must
be filed within on month from the date
of the decision.

Trademark Rule 2.129(c).2 Applicant filed its request for
reconsideration from the Board’s September 8, 2009 order on
November 9, 2009, 62 days after the order was issued, and is
therefore untimely.3

2 See also Trademark Rule 2.127(b) for requests for
reconsideration from an order or decision issued on a motion.
3 Applicant should note that an untimely request for
reconsideration of a final TTAB decision does not toll the time
to file an appeal to the Court of Appeals for the Federal
Circuit. “Successive motions periods, which would encourage
piecemeal attack on a judgment and delay appeals, are not
authorized." See Kraft, Inc. v. United States, 85 F.3d 602, 605
(Fed. Cir. 1996).
Opposition Nos. 91175280
4
Second, there is no provision in the Trademark Rules
for filing a second or subsequent request for
reconsideration.
Third, even if considered on the merits, applicant’s
contention that the Board improperly declined to consider
the evidence that applicant submitted with its first request
for reconsideration is expressly rejected. The parties in
an opposition must submit their testimony and evidence
during their assigned testimony periods and “[n]o testimony
shall be taken except during the times assigned.” Trademark
Rule 2.121(a). Furthermore, a request for reconsideration
may not be used to introduce additional evidence. TBMP §543
(2nd ed. rev. 2004). Accordingly, there is no basis for
applicant’s contention that the Board improperly refused to
consider the evidence that applicant attached to its request
for reconsideration.
In view of the foregoing, applicant’s second request
for reconsideration filed on November 9, 2009 and entitled a
notice of appeal is denied.
The Board will not consider any further papers filed by
applicant.
Decision: Applicant’s request for reconsideration is
denied.