Sharp

Trademark Trial and Appeal BoardOct 8, 2009

No. 78765022re (T.T.A.B. Oct. 8, 2009)

Mailed: October 8, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Sharp ________ Serial No. 78765022 _______ REQUEST FOR RECONSIDERATION John S. Egbert of Egbert Law Office for Michael Sharp. Doritt Carroll, Trademark Examining Attorney, Law Office 116 (Robert Lorenzo, Acting Managing Attorney). _______ Before Hairston, Bergsman and Ritchie, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Michael Sharp (“applicant”) filed a request for reconsideration from the August 31, 2009 decision affirming the refusal to register his mark. Applicant filed a use- based application to register in standard characters on the Principal Register the proposed mark Phonecasting for services ultimately identified as “wireless communications services, namely, transmission of multimedia content, multimedia advertising content, and user created multimedia THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Ser No. 78765022 2 content, to mobile telephones and wireless communications devices via the Internet, intranets and global computer networks,” in International Class 38. The issue on appeal was whether Phonecasting for wireless communications services is generic and, therefore registration on the Supplemental Register should be refused. In its request for reconsideration, applicant essentially reargued his case specifically addressing the probative value of the evidence demonstrating that Phonecasting is a generic term when used in connection with wireless communication services. In essence, the request for reconsideration was akin to a brief in opposition to the decision. However, the premise of a request for reconsideration is that, based on evidence of record and the prevailing authorities, the Board erred in reaching its decision. In other words, the request for reconsideration should be limited to a demonstration that based on the evidence of record and the applicable law, the Board’s ruling is in error and must be changed (i.e., identifying the factual and legal errors). See TBMP §§543 and 1219.01 (2nd ed. rev. 2004). Other than disagreeing with the decision and rearguing his case, applicant did not specifically point out erroneous findings of fact or any misapplication of the law. Ser No. 78765022 3 Nevertheless, we take this opportunity to address two of applicant’s arguments. First, applicant contends that the Board erred by considering evidence after applicant’s purported date of first use. Applicant’s contention is of no particular consequence to us. It is well settled that in an ex parte appeal, facts based on evidence that occurred subsequent to the filing date of the application, and in this case, after applicant’s first use, may be considered. The issue of whether a mark is descriptive, generic and/or has acquired distinctiveness is determined in view of the facts that exist at the time registrability is being considered. In re Beatrice Foods Co./In re Fairway Foods, Inc., 429 F.2d 466, 166 USPQ 431, 438 (CCPA 1970); In re Ellen Kaye Cosmetics Inc., 173 USPQ 703, 704 (TTAB 1972); In re Rockwell-Standard Company, 169 USPQ 445, 445 (TTAB 1971); TMEP §1212.01 (5th ed. 2007); In re Hoffman House Sauce Company, 137 USPQ 486, 487 (TTAB 1963); see also Grand Canyon West Ranch LLC v. Hualapai Tribe, 88 USPQ2d 1501, 1507 (TTAB 2008); Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1681 (TTAB 2007); McCormick & Co., Inc. v. Summers, 354 F.2d 668, 148 USPQ 272, 276 (CCPA 1988). Moreover, we note that applicant did not cite, nor could we find, any cases supporting his contention that use of the subject matter sought to be registered by others Ser No. 78765022 4 subsequent to applicant’s first use is less important or has less probative value regarding consumer perception than use occurring prior to applicant’s first use. Also, we note that applicant incorrectly asserts that the Wikipedia entry for “phonecast” was deleted. The examining attorney originally submitted a copy of the Wikipedia entry with her December 30, 2006 Office Action. Subsequently, she submitted a revised copy of the Wikipedia entry with her September 30, 2008 Office Action. While the second entry had been revised, both stated that “Phonecasting is a portmanteau of telephone and podcasting, and simply means recording and listening to podcasts with a phone.” There is nothing in the record to indicate that the Wikipedia entry had been deleted. After careful review of the evidence of record, the August 31, 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. Decision: Applicant’s request for reconsideration is denied.