`
`ESTTA Tracking number:
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`ESTTA770854
`
`Filing date:
`
`09/15/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91226763
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Defendant
`Manhattan Enterprise Group LLC
`
`MARSHA G GENTNER
`DYKEMA GOSSETT PLLC
`1301 K STREET NWSuite 1100 West
`WASHINGTON, DC 20005
`UNITED STATES
`mgentner@dykema.com, ipmail@dykema.com
`
`Other Motions/Papers
`
`Marsha G. Gentner
`
`ipmail@dykema.com, mgentner@dykema.com
`
`/Marsha G. Gentner/
`
`09/15/2016
`
`Attachments
`
`Reply Request for Reconsideration.pdf(8275 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91226763
`
`) )
`
`) )
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`)
`)
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`)
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`MANHATTAN REVIEW, INC.,
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`Opposer,
`
`v.
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`MANHATTAN ENTERPRISE GROUP LLC,
`
`Applicant.
`
`REPLY TO OPPOSER’S OPPOSITION TO
`APPLICANT’S MOTION FOR RECONSIDERATION
`
`Applicant, Manhattan Enterprise Group LLC, submits the following Reply to Opposer’s
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`Opposition to Applicant’s Motion for Reconsideration (“Opposer’s Opposition”).
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`1.
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`Applicant’s Request for Reconsideration (“Request”) did not reargue its
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`Motion to Dismiss. Applicant’s Request was confined to pointing out where the Board’s Order
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`erred – in failing even to consider the merits of the single issue raised by Applicant’s Motion to
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`dismiss: whether the marks at issue are too dissimilar to support a holding of likelihood of
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`confusion, as a matter of law. 1 Cf. Fulks v. Knowles-Carter, 2016 U.S. Dist. LEXIS 123150, *6
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`(S.D.N.Y. Sept. 11, 2016) (granting motion to dismiss infringement claim because no
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`reasonable fact finder could find that the two works are substantially similar, even though
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`substantial similarity is “often a fact-intensive question”). Applicant’s Request did not repeat or
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`reargue any of the reasons why it should succeed on the merits of that issue, recognizing that if it
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`Request is granted, the Board’s reconsideration will be confined solely to the arguments raised in
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`1 On the issue of the similarity of the marks at issue, the Board’s Order starts and stops with the
`single observation that “Opposer has alleged that the parties’ respective marks are similar.” See the
`Board’s August 15, 2016 Order, p.6.
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`
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`the Motion to dismiss, the Response in opposition to the Motion, and Applicant’s Reply to that
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`opposition Response.
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`2.
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`By contrast, Opposer’s Opposition improperly attempts at this late date to
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`address, for the first time, the merits of Applicant’s central assertion – that the marks are
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`too dissimilar to support a holding of likelihood of confusion as a matter of law. In its
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`opposition to the Motion to dismiss, Opposer expressly refrained from making any argument in
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`opposition to this central tenet of Applicant’s Motion, thereby conceding it. Opposer cannot now,
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`through the vehicle of a request for reconsideration, resurrect what it consciously waived. See
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`The General Tire & Rubber Co. v. The Gendelman Rigging & Trucking Inc., 189 USPQ 425,
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`429 (TTAB 1975):
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`It follows therefrom that when a party upon whom a motion has been served fails
`to avail itself on the opportunity to express its objections thereto, the Board may
`properly interpret this failure as a waiver of all objections by the party to the
`motion. It further follows that the party may not thereafter complain, as opposer
`has done herein, that it had anticipated that the Board would rule in its favor, and
`therefore did not feel it necessary to file a brief in opposition thereto. That is to
`say, a request for reconsideration cannot be employed as a second opportunity to
`file a brief in opposition to a motion.
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`Therefore, Opposer’s Opposition, at “point” III, pp.3-4, should be given no consideration in any
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`reconsideration of Applicant’s Motion to dismiss.
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`Wherefore, Applicant respectfully submits that its Request for reconsideration should be
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`granted, and for the reasons set forth in Applicant’s Motion to dismiss briefs, that the present
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`opposition should be dismissed.
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`Dated: September 15, 2016
`
`By:
`
`Respectfully submitted,
`MANHATTAN ENTERPRISE GROUP, LLC
`
`/Marsha G. Gentner/
`Marsha G. Gentner
`DYKEMA GOSSETT PLLC
`1301 K Street, NW, Suite 1100 West
`
`2
`
`
`
`Washington, DC 20005
`(202) 906-8611
`mgentner@dykema.com
`
`Attorneys for Applicant
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`Certificate of Service
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`The undersigned hereby certifies that on this 15th day of September, 2016, the foregoing
`Reply to Opposer’s Opposition to Applicant’s Motion for Reconsideration was served by first
`class and postage prepaid, on the following counsel of record for Opposer:
`
`Jeffrey A. Lindenbaum, Esq.
`Collen IP Intellectual Property Law PC
`The Holyoke-Manhattan Building, 80 South Highland Avenue
`Ossining, NY 10562
`
`/Shannon Williams/
`
`3
`
`
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