Point Noir Pty Ltd

Trademark Trial and Appeal Board

Jan 30, 2009

No. 78588436re (T.T.A.B. Jan. 30, 2009)

Mailed:
January 30, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Point Noir Pty Ltd
On Request for Reconsideration
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Serial No. 78588436
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Bradley M. Ganz of Ganz Law, P.C., for Point Noir Pty Ltd.

Julie A. Watson, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
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Before Hairston, Bergsman, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

On December 12, 2008, the Board issued an order
affirming the examining attorney’s refusal to register
applicant’s mark on the ground that it is merely
descriptive of the identified goods under Trademark Act
Section 2(e)(1), 15 U.S.C. §1052(e)(1). Applicant filed a
timely request for reconsideration of the Board’s decision.
Applicant’s request for reconsideration relies on four
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78588436
2
alleged errors by the Board; namely that (1) the Board
erred in considering the “urban dictionary” definition
submitted by the examining attorney of “foot thong”; (2)
the Board erred by not finding applicant’s mark to be
incongruous, and therefore not merely descriptive; (3) the
Board improperly characterized “a few” online examples of
third-party use of the term “foot thong” as “overwhelming”;
and (4) the Board erred by not specifying that doubt on a
2(e)(1) refusal should be resolved in applicant’s favor.
Applicant’s request for reconsideration is governed by
Trademark Rule 2.144; 37 CFR §2.144. The premise underlying a
request for reconsideration is that, based on the facts before
it and the prevailing authorities, the Board erred in reaching
the decision it issued. Such a request may not properly be
used to introduce additional evidence, nor should it be
devoted simply to a reargument of the points presented in the
appeal brief. Rather, the request should be limited to a
demonstration that based on the facts before it and the
applicable law, the Board's ruling is in error and requires
appropriate change. See TBMP § 1219.01 (2d ed. rev. 2004).
Nevertheless, upon thorough review of applicant’s motion
for reconsideration, we find that the request is simply a
reargument of points already argued in applicant’s appeal
brief. Applicant’s first three alleged errors were considered
Ser. No. 78588436
3
and addressed by the Board in the December 12 decision. The
fourth alleged error regards the issue that any doubts on the
2(e)(1) refusal are to be resolved in favor of applicant. See
In re Conductive Services, Inc., 220 USPQ 84, 86 (TTAB 1983)
(observing, “[w]e recognize that the suggestive/descriptive
dichotomy can require the drawing of fine lines and often
involves a good measure of subjective judgment.”). In this
case, however, there was no doubt to resolve in applicant’s
favor since the evidence clearly indicated that applicant’s
mark is merely descriptive of its identified goods.
Accordingly, applicant’s request for reconsideration is
denied.