L'Nard Restorative Concepts, Inc.

Trademark Trial and Appeal Board

Oct 30, 1998

No. 74375406re (T.T.A.B. Oct. 30, 1998)

Paper No. 20
RLS/YO
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re L’Nard Restorative Concepts, Inc.
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Serial No. 74/375,406
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Second Request for Reconsideration
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Donald H. Zarley of Zarley, McKee, Thomte, Voorhees & Sease
for L’Nard Restorative Concepts, Inc.
Angela M. Micheli, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
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Before Simms, Cissel and Seeherman, Administrative
Trademark Judges.
Opinion by Simms, Administrative Trademark Judge:
On November 12, 1998, applicant filed a second request
for reconsideration of the Board’s decision issued October
10, 1996. In that opinion, before finding applicant’s
asserted mark primarily functional and lacking in acquired
distinctiveness, the Board determined that a 1989 decision
of the U.S. District Court for the Middle District of
Ser. No. 74/375,406
2
Florida had no preclusive effect on the issues in this
case. Applicant requested reconsideration of our decision
and the Board, on October 30, 1998, denied applicant’s
request for reconsideration.
An applicant which has filed an appeal from a refusal
of an Examining Attorney and received a final decision from
the Board may file a request for reconsideration or
modification. The request must be filed within one month
from the date of the decision. See Trademark Rule 2.144.
Here, applicant filed a request for reconsideration, and
the Board then denied that request on October 30, 1998.
There is no provision for the filing of a second request
for reconsideration. Moreover, the record is closed once
the appeal is filed (except as allowed by Rule 2.142), and
evidence submitted thereafter, including with a request for
reconsideration, is untimely. The Board’s final decision
will not be disturbed.1

1 In any event, we note that the court, both in its order on
plaintiff’s motion for preliminary injunction, and in its
decision after final evidentiary hearing, repeatedly refers to
the trade dress before it as consisting of a splint and an
anklet. See page 3 of the court’s order of October 7, 1988 and
pages 2 and 5 (“plastic component part and accompanying anklet”),
page 6 (“the L’Nard splint is brown and includes a yellow anklet
with three straps designed to secure the splint to the patient’s
foot and ankle. Attached to the splint is a beige toe guard and
stabilizer bar …”), page 13 (“the plastic component, the
anklet…”) and page 15 (“the plastic component, the anklet…”) of
the court’s final order issued July 10, 1989). Even if the court
had reference to a padded or lined anklet, we note that there was
Ser. No. 74/375,406
3
Applicant’s second request for reconsideration is
denied.2

no reference to the fleece lining attached to the back of the
splint and the fourth strap designed to hold the leg in place
against that soft lining. We cannot say that applicant has
demonstrated that the same trade dress that was before the court
is the subject matter of the instant application.
2 The delay in acting on this request is regretted.
We decided that applicant’s mark (below) was
functional and, in any event, the evidence was not
sufficient to permit registration under Section 2(f). We
noted the utility of the soft fleece and anklet lining as
well as the toe post. We noted that to the extent that the
lining or padding covers only a portion of the leg, this
may be less expensive than one that covers the entire leg.
We also noted reasons for the particular height of the leg
support (not too high and not too short). We also noted
that applicant had admitted that its device was not
designed arbitrarily since it must be useful, although
applicant denied that the design was functional.
Concerning 2(f), we said that mere sales alone as well as
the fact that a photograph of the goods appeared in
advertisements did not necessarily show promotion as a
trademark or show purchaser recognition. We said that,
Ser. No. 74/375,406
4
R. L. Simms
R. F. Cissel
E. J. Seeherman
Administrative Trademark
Judges, Trademark Trial and
Appeal Board

although applicant’s design is somewhat different from
competitive braces, applicant had not shown that potential
purchasers would recognize these differences as indicating
origin in applicant.
Along the way, we said that the foot orthosis device
before the federal court on applicant’s predecessor’s claim
of unfair competition was different from the one in this
application. We noted that the court said that the trade
dress before it was similar to the patented device. See
the patented design shown below and the mark here sought to
be registered.