LINDA R. BARNES, Pеtitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 2006-3245.
United States Court of Appeals, Federal Circuit.
Dec. 6, 2006.
209 Fed. Appx. 986
Before NEWMAN, MAYER, and LINN, Circuit Judges.
PER CURIAM.
Linda R. Barnes petitions for review of the decision of the Merit Systems Protection Board, Docket No. AT844E050910-I-1, affirming the reconsideration decision of the Office of Personnel Management that she is not entitled to disability retirement benefits. We affirm the decision of the Board.
DISCUSSION
Ms. Barnes was a Legal/Administrative Specialist with the Department of Veterans Affairs when she applied for disability retirement in September 2004. The OPM denied thе application, and after various proceedings the Board concluded that her condition did not interfere with her ability to perform her job, and affirmed OPM‘s action. Ms. Barnes appeals, challenging the conclusion that she is not disabled, and stating that one of the government witnesses provided dishonest testimony.
The Federal Circuit does not have authority to review the facts of disability. See Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) (“Accordingly, while the factual underpinnings of § 8347 disability determinations may not bе judicially reviewed, such review is available to determine whether ‘there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error “going to the heart of the administrative determination.” ’ “) (quoting Scroggins v. United States, 184 Ct.Cl. 530, 397 F.2d 295, 297 (1968)). Thus the only issue before us relates to Ms. Barnes’ allegation that a government witness “lied under oath.” Ms. Barnes directs us to no basis for her allegation, which concerns her supervisor. An allegation of witnеss dishonesty requires support, such as inherent improbability or contradiction by undisputed facts. See Pope v. U.S. Postal Service, 114 F.3d 1144, 1149 (Fed.Cir.1997) (“As an appellate court, we are not in position to re-evaluate these credibility determinations, which are not inherently improbable or discredited by undisputed fact.“); Hambsch v. Department of Treasury, 796 F.2d 430, 436 (Fed. Cir.1986) (issues of credibility are extremely difficult to determine on appellate review).
The decision of the Board must be affirmed.
No costs.
TELEDYNE TECHNOLOGIES, INC., Appellant, v. WESTERN SKYWAYS, INC., Cross-Appellant.
Nos. 2006-1366, 2006-1367.
United States Court of Appeals, Federal Circuit.
Dec. 6, 2006.
208 Fed. Appx. 886
Before MICHEL, Chief Judge, LINN and PROST, Circuit Judges.
Lord, Kimberly E., Johnson & Repucci LLP, Culley, Scott H., Packard & Dierking, LLC, Boulder, CO, for Cross-Appellant.
MICHEL, Chief Judge.
Teledynе Techs., Inc. (“Teledyne“) appeals from a final decision of the Trademark Trial and Appeal Board (“Board“) denying its petition for cancellation of Registration No. 2,227,392 to Western Skyways, Inc. (“Western Skyways“) of the mark GOLD SEAL for aircrаft engines. Teledyne Techs., Inc. v. Western Skyways, Inc., Cancellation No. 92/041,265, 2006 WL 337553 (T.T.A.B. Feb. 2, 2006). Teledyne asserts that laches should not have been applied against it because inevitable confusion was established. Western Skyways cross-appeals, arguing that the Board erred in finding a likelihood of confusion and rejecting its alternative defense under Morehouse Mfg. Corp. v. J. Strickland & Co., 56 C.C.P.A. 946, 407 F.2d 881 (1969).1 Because the Board‘s findings were supported by substantial evidence and free of legal error, its decision is in all respects affirmed.
BACKGROUND
Teledyne sells aircraft еngines under the mark CONTINENTAL, but since 1991, it has used the mark GOLD SEAL for ignition harnesses. An ignition harness is an essential part of an aircraft piston engine that transmits electrical energy from the magneto to the sparkplugs. It is often sold with an engine, but it can also be sold as a separate part. Teledyne registered GOLD SEAL for “airplane parts, namely ignition harnesses” on December 26, 1995 (Reg. No. 1,943,566). Teledyne‘s mark ap
Western Skyways was formed by former employees of a defunct entity that rebuilt and sold aircraft engines under the mark GOLD SEAL from the mid-1950s until it dissolved in 1986. Western Skyways owns incontestable registrations of the mark GOLD SEAL for aircraft logbooks (Reg. No. 1,925,425) and aircraft engine overhaul and reconditioning services (Reg. No. 2,275,239). In 1994, it began using the same mark on rebuilt and overhauled aircraft engines. On both the logbook and the engine itself, it places an oval sticker with “Western Skyways Gold Seаl Aircraft Engines” printed in black on a gold background. Western Skyways has rebuilt engines originally manufactured by Teledyne and has also used Teledyne‘s GOLD SEAL ignition harnesses as replacement parts.
On June 23, 1997, Western Skyways filed its trademark applicаtion for GOLD SEAL for “aircraft engines;” it was registered on March 2, 1999. Teledyne filed a petition for cancellation over three years later, on October 18, 2002. Western Skyways asserted various affirmative defenses in its answer filed on February 21, 2003. Thе parties subsequently submitted briefs but did not request a hearing.
On February 2, 2006, the Board issued its decision. The Board found that, notwithstanding its failure to properly introduce its own registered mark into the record, Teledyne established that it was the senior user of GOLD SEAL. Teledyne, sliр op. at 5-9. The Board then found that (1) the marks were identical, which weighed heavily in Teledyne‘s favor; (2) the proffered third party registrations of GOLD SEAL marks on tires, hose clamps and spring brake actuators were entitled to little probative value; (3) the goods were “distinctly different,” but aircraft engines and ignition harnesses were commercially related, which weighed in Teledyne‘s favor; (4) the channels of trade were similar, which weighed in Teledyne‘s favor; (5) although there was an оverlap in the purchasers, the conditions of sale and the sophistication of the purchasers weighed in favor of Western Skyways; and (6) the fact that there was no evidence of actual confusion during ten years of overlapping use weighed in favor of Western Skyways. Id., slip op. at 9-17. The Board observed that any doubt was resolved in favor of the prior user and concluded that a likelihood of confusion had been established. Id., slip op. at 18.
As for the affirmative defensеs, the Board rejected Western Skyways’ Morehouse defense, reasoning that the prior registrations were for identical marks but the goods and services at issue were clearly different. Id., slip op. at 18-20. As for laches, the Board found that Teledyne did nоt assert its rights until October 18, 2002 (although constructive notice was provided when the disputed registration issued on March 2, 1999) and proffered no explanation for the three-year delay; in the meantime, Western Skyways had invested in its GOLD SEAL mark. Id., slip op. at 20-28. Although Teledyne argued there was inevitable confusion, which rendered the laches defense inapplicable, the Board disagreed. While the goods were commercially related, they were “hardly identical;” moreover, the sophistication of the purchasers and the lack of actual confusion weighed against a finding that confusion was inevitable. Id., slip op. at 28-30. For these reasons, the Board dismissed Teledyne‘s petition for cancellation.
Timely notices of appeal and cross-appeal followed. We have jurisdiction pursuant to
We review the Board‘s legal conclusions de novo. On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1084 (Fed.Cir. 2000). Factual findings are reviewed in accordance with the Administrative Procedure Act,
Whether a likelihood of confusion exists is a question of law based on underlying factual determinations. On-Line Careline, 229 F.3d at 1084; In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A.1973) (listing the various factors to be considered).2 We, like the Board, resolve any doubts about the likelihood of confusion against the junior user of the mark. In re Chatam Int‘l, Inc., 380 F.3d 1340, 1345 (Fed.Cir.2004).
On cross-appeal, Western Skyways argues that the Board‘s conclusion that there was a likelihood оf confusion was based on several factual errors. Specifically, it asserts that (1) the marks were not identical notwithstanding Teledyne‘s use of GOLD SEAL in standard block letters because it was preceded by “TCM;” (2) the trade channels are not similar; and (3) the sophistication of the purchasers should have been accorded more weight. In response, Teledyne counters that the Board failed to adequately account for the fact that the same engine disрlays both GOLD SEAL marks when Western Skyways uses its ignition harness as a replacement part.
We are not persuaded. The Board‘s factual findings were supported by substantial evidence. First, there were numerous instances in the record, i.e., in marketing brochures and other promotional materials, where Teledyne‘s products were called GOLD SEAL ignition harnesses without the “TCM.” Second, while Western Skyways may be correct that the goods are not sold in the same channels of trade, the Board did not reversibly err in finding that aircraft engines and aircraft engine parts are commercially related and sold in similar channels of trade. Indeed, in a broader sense, an aircraft engine is itself a replacement part for an airplane. Third, the Board explicitly recognized that purchasers were likely to be sophisticated and gave this factor due consideration. In weighing the various DuPont factors, some
As for laches, this is an equitable defense and the Board‘s ruling is reversible only for abuse of discretion. Bridgestone/Firestone Research, Inc. v. Auto. Club de L‘Ouest de la France, 245 F.3d 1359, 1361 (Fed.Cir.2001). Where there is inevitable confusion, however, the court should decline to apply laches to protect the public interest. Ultra White Co., Inc. v. Johnson Chem. Indus., Inc., 59 C.C.P.A. 1251, 465 F.2d 891, 893-94 (C.C.P.A.1972).
Teledyne argues that the Board abusеd its discretion in applying laches because Western Skyways adopted GOLD SEAL in bad faith. It further contends that the Board erred in failing to find inevitable confusion.
We disagree. The Board found that Teledyne proffered no explanation for the three-year delay in asserting its rights. Instead, it placed all its proverbial eggs in the “inevitable confusion” basket. As indicated above, several of the DuPont factors weighed in favor of Western Skyways and we discern no error in the Board‘s conclusion that confusion was not inevitable. Moreover, there was no evidence in the record that Western Skyways acted in bad faith or deliberately copied the GOLD SEAL mark from Teledyne, rather than adopting the mark used by the previous incarnation of Western Skyways. The Board therefore did not abuse its discretion or otherwise err in applying laches. In light of this ruling, we need not and do not address whether the Morehouse defense was properly rejected.
We have considered the remaining arguments made and find them to be without merit. Accordingly, we reject both the appeal and the cross-appeal. The Board‘s denial of Teledyne‘s petition for cancellation is therefore affirmed.
HARRY M. SCHMITT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF THE NAVY, Intervenоr.
No. 06-3287.
United States Court of Appeals, Federal Circuit.
Dec. 6, 2006.
209 Fed. Appx. 890