Scientific Solutions, Inc.v.Scientific Solutions, LLC

Trademark Trial and Appeal Board

Aug 15, 2012

No. 92051031re (T.T.A.B. Aug. 15, 2012)

Mailed: August 15, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Scientific Solutions, Inc.
v.
Scientific Solutions, LLC
_____

Cancellation No. 92051031

Request for Reconsideration
_____

Scientific Solutions, Inc., pro se.

Jacques Catafago of The Catafago Law Firm PC for Scientific
Solutions, LLC.
______

Before Seeherman, Holtzman and Kuhlke, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

The Board, on March 30, 2012, issued a final decision
denying the petition to cancel Registration No. 3564203 on the
ground of likelihood of confusion. The Board found
that respondent's mark shown below ("Scientific Solutions"
disclaimed),

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Cancellation No. 92051031
2
for "dietary and nutritional supplements" is not likely to cause
confusion with petitioner's typed mark SCIENTIFIC SOLUTIONS in
Registration No. 2406359 for the following goods:
Computer hardware and software for use in the fields
of industrial automation and scientific and
engineering data acquisition, control and analysis
and for controlling, monitoring and emulating
scientific and engineering instruments and
instrumentation systems, and for performing
instrumentation functions, and instruction manuals
sold therewith.

Petitioner timely filed a request for reconsideration of
this decision on April 30, 2012. Respondent did not file a brief
in response.
We have reviewed petitioner's arguments, but are not
persuaded that there is any error in our decision.
The premise underlying a request for reconsideration 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. It is not to be a reargument of the points
presented in the original decision, nor is it to be used to raise
new arguments or introduce additional evidence. Rather, the
request should be limited to a demonstration that based on the
facts before it and the applicable law, the Board's decision is
in error and requires appropriate change. See TBMP § 543 (3d ed.
rev. 2012) and cases cited therein.
Based on the scant information before us on the du Pont
factor regarding the similarity or dissimilarity and nature of
Cancellation No. 92051031
3
the goods, which was essentially no more than the identifications
of goods themselves, the Board found as follows:
Respondent's dietary and nutritional supplements,
which are ordinary consumer goods, and petitioner's
computer goods with highly technical and specialized
functions and purposes, are vastly different
products. Furthermore, these goods appear wholly
unrelated on their face, and petitioner has failed to
show, or even explain, any commercial relationship
between them.

Petitioner argues that the Board erred "by mistakenly
assuming a narrow definition of the goods of the Petitioner as
only 'computer goods,' whereas the description of Petitioner's
goods of evidence is broader"; by then using that narrow
definition as the basis of concluding that the respective trade
channels are different; and also by identifying only "'scientists
and engineers' and not 'ordinary consumers' for the class of
customers of Petitioner's goods." Req. for Recon., p. 2.
Petitioner chose not to offer any evidence or argument as to
the nature of its goods, the scope of its identification of goods
or any relationship between the respective goods. Nevertheless,
as the basis for its claim of error, petitioner now, for the
first time on reconsideration, offers this explanation about its
goods (Id., pp. 3-4):
The computer hardware in the description of goods can
be embedded into a small hand-held device. The
computer hardware and software can be a small micro-
computer inside of a hearing aid or some hand-held
instrument. ... The Petitioner's 'Instrumentation'
in the description of Petitioner's goods can include
computer hardware and software embedded in a device
that provides instrumentation functions such as a
digital thermometer, ..., digital blood-glucose
Cancellation No. 92051031
4
meter..., hand-held digital blood pressure
monitor..., digital pulse meter... .

Petitioner obviously disagrees with the Board's
interpretation of its identification of goods but has pointed to
no error in our analysis. Furthermore, its belated explanation
regarding the nature of its goods is improper and will not be
considered. As we noted, it is inappropriate to use a request
for reconsideration as an opportunity to present new arguments,
and petitioner has submitted what essentially amounts to an
entirely new brief in support of its case with an entirely new
set of “facts.”1 The Board cannot possibly have erred in failing
to consider facts that were not before us. Cf. Keebler Co. v.
Murray Bakery Products, 866 F.2d 1386, 9 USPQ2d 1736, 1737 (Fed.
Cir. 1989) ("Prescience is not a required characteristic of the
board. Thus the board need not devine all possible afterthoughts
of counsel that might be asserted for the first time on
appeal.").
Even if we had this information before us it would not be
persuasive of a different result. We would still adhere to our
finding that petitioner's goods are "computer goods with highly
technical and specialized functions and purposes."2 While
petitioner's computer goods may be "embedded" in end products

1 Petitioner did not make of record any information about its goods
that would support the statements made in its request for
reconsideration.
2 Petitioner's request that the Board take judicial notice of various
dictionary definitions is denied. This request is manifestly untimely.
Cancellation No. 92051031
5
used by consumers, such as thermometers, they are clearly not the
end products themselves. Furthermore, there is nothing in the
record to indicate that purchasers of such end products would be
aware of the trademark on petitioner's "embedded" products, let
alone that the mark identifying these "embedded" computer
products would ever come to the attention of the same consumers
who purchase respondent's dietary and nutritional supplements.
Nor is there any basis for error in our findings regarding
the channels of trade and classes of purchasers for the
respective goods. With respect to the purchasers, the Board
found as follows:
Respondent's nutritional supplements would be
purchased by ordinary consumers. Petitioner's goods,
in contrast, are sold to "end users, OEM's,
universities, research labs, pharmaceutical
companies, drug and nutritional companies." Reardon
Test., p. 3. The "end users" who would purchase
petitioner's highly specialized computer products,
for example, scientists and engineers, are not
ordinary consumers." Decision, p. 10.

Petitioner claims that the Board erred by finding that
respondent's dietary and nutritional supplements are "ordinary
consumer goods," arguing that "there is no evidence of record
that confirms this." Req. for Recon., p. 5. Petitioner
theorizes that respondent's goods "are just as likely to be
'specialized non-consumer goods' for medical or health
professionals, clinics, pharmaceutical companies, oncology
centers, or any number of specialized applications" or "designed
Cancellation No. 92051031
6
to interact and enhance the effects of chemotherapy treatment
used in cancer centers." Id., pp. 5-6.
Petitioner's arguments in this regard are, once again,
untimely and, moreover, they are speculative and unsupported by
any evidence. It is common knowledge that goods identified as
"dietary and nutritional supplements" are, by their nature,
ordinary consumer products.3 Petitioner certainly never argued
otherwise. Nevertheless, we add that the specimen in
respondent's underlying application supports this finding. The
specimen consists of a label for respondent's SPORTS OXYSHOT
product, identifying it as "an adult dietary supplement," and
clearly showing that it is an over-the-counter product directed
to ordinary consumers. After touting the claimed benefits of the
supplement as providing, for example, "Scientifically Advanced
High Performance Nutrition," the label contains the following
"warning": "These statements have not been evaluated by the Food
and Drug Administration (FDA). This product is not intended to
diagnose, treat, cure, or prevent any disease." Clearly,
respondent's supplements are not "specialized non-consumer goods"
for health professional companies or oncology centers, as
petitioner contends.4

3 The Board may take judicial notice of facts generally known within
its jurisdiction. Fed. R. Evid. 201(b); TBMP § 704.12 (3d ed. rev.
2012).
4 However, even assuming respondent's products were considered
"specialized non-consumer goods" and that, as petitioner argues, "a
higher standard of care should be utilized" where "medicinal products"
Cancellation No. 92051031
7
Petitioner argues with respect to its own goods that "[t]he
'end users' referred to by Ms. Reardon could also be 'ordinary
consumers.'" Id., p. 13. However, Ms. Reardon never testified
that the end users of petitioner's goods are ordinary consumers,
and in fact she never identified who such end users might be.
Furthermore, petitioner's contention is not supported by any
reasonable reading of the identification of goods.
Finally, we adhere to our finding that petitioner's asserted
evidence of actual confusion is of no probative value. We found
that the callers "were clearly confused, but the nature of that
confusion is entirely unclear from [Ms. Reardon's and Mr.
Cawthon's] testimony"; that Mr. Cawthon's judgments regarding the
callers' confusion 'as to source' are his own assessment and they
are unsupported by any underlying facts or details"; and,
ultimately, that we could not find based on the "vague and
limited information provided by the witnesses that these
individuals were prompted to call petitioner as a result of any
confusion due to the source of the parties' goods, particularly
considering the complete lack of similarity between the goods."
Decision, pp. 13-14.
Petitioner argues that "there is no evidence to suggest that
the determination of confusion was Mr. Cawthon's 'own assessment'
as the Board contends." More specifically, petitioner "takes
great exception and is incensed by The Board introducing their

are involved (Id., p. 6), these are facts which would actually tend to
Cancellation No. 92051031
8
own evidence on behalf of [respondent] in claiming Mr. Cawthon's
testimony being 'his own assessment.'" Petitioner requests that
the Board "leave the introduction of testimony and evidence and
the cross-examination of witnesses to the opposing parties."
Req. for Recon., pp. 15-16.
It is for the Board to determine the probative value of
testimony. Merely because the testimony stands unrebutted or
unchallenged by respondent does not compel us to find that the
testimony is probative or entitled to any weight. The point is
that Mr. Cawthon drew a conclusion based on undisclosed facts,
and his unsupported and conclusory "assessment" is entitled to no
probative weight. Petitioner itself recognizes that the
testimony is vague and ambiguous. Referring to Mr. Cawthon's
statement that he "determine[d] the individual was confused
regarding the source of the goods he had purchased," petitioner
acknowledges that the testimony "does not say how this
determination was made." Id., p. 15. Whatever Mr. Cawthon's
reasons were for drawing his conclusion are a matter of
speculation.
In view of the foregoing, petitioner's request for
reconsideration is denied, and the Board’s March 30, 2012
decision stands.

weigh against a finding of likelihood of confusion.