451 F.2d 1402 | C.C.P.A. | 1971
This is an appeal from a decision of the Trademark Trial and Appeal Board summarily dismissing, on motion, the opposition of appellant,
On the last day of appellant-opposer’s trial period, it moved for “summary judgment,” stating as grounds therefor that inasmuch as no discovery testimony had been taken, it predicated its motion for judgment on the pleadings and an attached affidavit of Michael Rosen and exhibits thereto annexed.
In responding, appellee requested that the motion be dismissed and affirmatively cross-moved for judgment under Rule 2.132 on the ground that appellant-opposer, having failed to take testimony or to introduce any evidence in support of the allegations of the notice of opposition during its trial period, had not shown, at least prima facie, that it is entitled to judgment. In conjunction with the cross-motion, appellee submitted a certified copy of Registration No. 428,190, which, the board observed, “shows on its face that it is the owner thereof and that the certificate is valid, subsisting and incontestable.”
We do not deem it necessary, as did the board, to discuss the office and functions of summary judgment procedure or the timeliness of the motion for summary judgment which was filed on the last day of appellant’s trial period, or whether or not appellant is the actual owner of a registration of a mark which is confusingly similar to the mark appellee seeks to register.
After citing a number of relevant cases, this court in Morehouse Mfg. Corp. v. J. Strickland Co., 56 CCPA 946, 407 F. 2d 881, 160 USPQ 715 (1969), stated:
Tie proposition for which these cases were cited is that, as a matter of law, the opposer cannot he damaged, within the meaning of section 13 of the statute,
Because.we agree with, the board that:
* * * the mark which applicant is presently seeking to register is identical to the mark which serves as the subject matter of Registration No. 428,190, and that the goods specified in applicant’s registration and application are in part identical and otherwise considered substantially the same, or so related as to represent in law a distinction without a difference * * *
we think it correct in concluding that opposer could not possibly be damaged by the registration which applicant now seeks to register.
We affirm the decision of the board in dismissing the opposition.
It is noted that the mark shown in said registration is “TEMP-0°” in stylized form and displayed within a rectangular outline. The goods designated therein are men’s, boys’, and children’s outer garments consisting of coats, rests, pants, and trousers.