Friday, November 04, 2005

Leo Stoller Mowed Down by TTAB in "STEALTH" Opposition Dismissal

Frequent TTAB litigants Leo Stoller and his company, Central Mfg. Co., failed miserably in their attempt to block registration of the mark STEALTH for lawn mowers. Stoller and Central claimed likelihood of confusion with their registered mark STEALTH for "lawn sprinklers," and they also alleged ownership of a "family of famous STEALTH marks for a 'range of goods.'" In addition, Opposers alleged mere descriptiveness, fraud, and nonownership in their amended notice of opposition. Stoller v. Sutech U.S.A. Inc., Opposition No. 91117894 (October 26, 2005) [not citable].

The Board first addressed the grounds other than Section 2(d). As to mere descriptiveness, Opposers relied on a statement by Applicant Sutech's vice-president that he believed the mark STEALTH was chosen for Applicant's lawn mower because the front of the mower evoked the Stealth aircraft. The Board found that statement insufficient to establish Opposer's Section 2(e)(1) claim because the mark did not immediately convey information regarding a significant quality, characteristic, function, ingredient, attribute, or feature of the product.

Opposers' wholly bogus fraud claim pointed to Sutech's filing of the subject application on the basis of intent-to-use, when in fact it had already been using the mark. The Board merely noted that there is no prohibition against filing an intent-to-use application even though the mark may be in use.

Opposers' assertion that Applicant did not own the applied-for mark was [surprise, surprise!] without evidentiary support and completely lacking in merit.

Not content with losing only on those grounds, Stoller and Central threw a few more worthless claims into their brief. (Unfortunately, Applicant addressed them rather than ignore them). First, they made the wholly bizarre contention that Sutech's mark STEALTH is functional. The Board noted that Applicant's mark is a word mark in standard character form, and it therefore swiftly dismissed that claim.

Next, Opposers oddly asserted that the opposed application was not viable because of incorrect dates of use, invalid specimens of use, and improper specimens. However, the Board pointed out that the application was based on intent-to-use, and so there were no dates of use or specimens in the application.

Finally, the Board turned to Opposer's likelihood of confusion claim. Stoller and Central claimed rights in 26 federal registrations but failed to submit them properly into evidence. As to use of the marks, Opposers offered the poorly-worded declaration of a single customer that failed to establish "opposer's use of STEALTH as a trademark in connection with lawn sprinklers or any other products." [TTABlog query: how did that declaration get into evidence? Apparently by stipulation.]

In sum, the Board observed that Opposers failed to prove ownership of any registrations, and failed to prove use of the pleaded marks. It concluded that "opposers have not established either standing or priority and, thus, opposers' claim of likelihood of confusion must fail."

TTABlog comment: What, no sanctions, you might ask? Well, not in the final decision anyway. But earlier Opposers were sanctioned under the Board's "inherent authority to sanction a party based on the conduct undertaken in a proceeding." In an Order dated April 8, 2003, the Board entered sanctions because "opposers were ordered by this Board to provide a copy of their previously filed motion and opposers did not do so. In fact, opposers filed an entirely new paper entitled 'amended motion.'"

"Accordingly, in view of opposers' failure to provide a copy of their original motion for summary judgment (allegedly filed via certificate of mailing on September 6, 2002), the Board will not consider either of the summary judgment papers filed by opposers on November 25, 2002."

So we can add this one to the Stoller sanction list previously provided here and here by the TTABlog, bringing the total number of sanction rulings to thirteen.

Text Copyright John L. Welch 2005.


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