Emerald Bio-agriculture Corporationv.Biosafe Systems, LLC

Trademark Trial and Appeal Board

Aug 17, 2006

No. 92042503re (T.T.A.B. Aug. 17, 2006)

Mailed:
17 August 2006
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Emerald Bioagriculture Corporation
v.
Biosafe Systems, LLC
_____

Cancellation No. 92042503
_______

Request for Reconsideration
_______

John C. Blattner of Butzel Long for Emerald Bioagriculture
Corporation.

Robert S. Smith, Esq. for Biosafe Systems, LLC.
______

Before Bucher, Drost, and Kuhlke, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On February 9, 2006, we granted Emerald Bioagriculture
Corporation’s (petitioner) petition to cancel respondent’s
(Biosafe Systems, LLC) registration (No. 2,765,685).
Respondent subsequently requested reconsideration of that
decision, which we denied on June 28, 2006. On July 18,
2006, respondent filed a second request for reconsideration.
In the second request for reconsideration (pp. 1-2),
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Cancellation No. 92042503
2
respondent attaches numerous pages from the website
www.onelook.com.
The search facility enables a search for all English
words and phrases starting respectively with the letter
strings “auxi” and “oxy.” Exhibits 1 and 2 show
respectively the 128 “auxi” terms and the 608 “oxy”
terms. Exhibit 3 is a print out from the web site
www.thefreedictionary.com showing the pronunciation of
representative terms “auxiliary” and “oxygen.” It is
abundantly clear that literate people will not
pronounce the first syllable of any of the “auxi” words
and phrases the same as any of the “oxy” words and
phrases.

Thus, the expert witness testimony offered by
petitioner is in direct conflict with essentially every
English-language dictionary in the world.1

We again deny respondent’s request for reconsideration.
It is far too late in this proceeding to introduce new
evidence to challenge the testimony of petitioner’s expert.
Even if respondent had submitted this evidence earlier in
the briefing process, it would have been subject to a motion
to strike. TBMP § 801.05 (2d ed. rev. 2004) (A “party may
move to strike evidentiary matter attached to a brief where
the evidentiary matter was not properly made of record
during the time for taking testimony”). In addition, the
board does not take judicial notice of online dictionaries.
In re Total Quality Group, Inc., 51 USPQ2d 1474, 1476 (TTAB
1999). Therefore, there is no new evidence that is properly
of record and respondent’s argument does not persuade us

1 We note that respondent only attached the pronunciations for
“auxiliary” and “oxygen.” See www.thefreedictionary.com, Exhibit
3.
Cancellation No. 92042503
3
that the underlying decision should be modified. We add
that the list of words and the www.thefreedictionary.com
pronunciations hardly demonstrates that the testimony is in
“conflict with essentially every English-language dictionary
in the world.”
Applicant’s second request for reconsideration is
denied. The decision dated February 9, 2006 stands.