throbber
THIS OPINION IS NOT
`CITABLE
`AS PRECEDENT OF
`THE T.T.A.B.
`
`UNITED STATES DEPARTMENT OF COMMERCE
`Patent and Trademark Office
`Trademark Trial and Appeal Board
`2900 Crystal Drive
`Arlington, Virginia 22202-3513
`
`Zervas
`
`Mailed: April 30, 2002
`
`Opposition No. 115,805
`
`G. D. Searle & Co.
`
`v.
`
`Victorio Rodriguez
`
`Before Cissel, Quinn and Bucher, Administrative Trademark
`Judges.
`
`By the Board:
`
`Victorio Rodriguez (proceeding pro se)1 has filed an
`
`application to register the proposed mark CEREBRIL (in typed
`
`form) for “pharmaceutical preparations for the treatment of
`
`brain edema.”2
`
`G. D. Searle & Co. has opposed the registration of
`
`applicant's proposed mark, alleging that opposer
`
`manufactures and sells pharmaceuticals, and has a need to
`
`use anatomical and medical terms such as “cerebral”; that
`
`1 Applicant was represented by an attorney during the prosecution
`of this case, but has since discharged his attorney. On November
`15, 2000, prior to the date when applicant filed his motion for
`summary judgment, the Board granted opposer's attorney’s request
`for withdrawal. Since then, applicant has been proceeding pro
`se.
`2 Application Serial No. 75/409,172 for CEREBRIL was filed on
`December 22, 1997 and is based on the assertion of an intent to
`use the mark in commerce.
`
`

`
`Opposition No. 115,805
`
`CEREBRIL is merely a variation of the spelling of
`
`“cerebral,” which is defined as “of or relating to the brain
`
`or cerebrum”; and that applicant's proposed mark is merely
`
`descriptive under Section 2(e)(1) of the Trademark Act.
`
`Applicant has denied the salient allegations of the
`
`notice of opposition.
`
`This case now comes up on (a) opposer's “Request for
`
`Clarification and Modification of Orders” (filed August 15,
`
`2001); (b) applicant's motion for summary judgment (filed
`
`via a certificate of mailing on August 29, 2001); (c)
`
`opposer's cross motion for summary judgment (filed via a
`
`certificate of mailing on October 3, 2001);3 (d) applicant's
`
`motion for sanctions (filed October 29, 2001); and (e)
`
`opposer's motion (filed November 5, 2001) to strike
`
`applicant's brief entitled “Applicant's Response to
`
`Opposer's Support of Cross-Motion for Summary Judgement &
`
`Applicant's Support for its Motion for Summary Judgement,”
`
`which applicant filed via a certificate of mailing on
`
`October 26, 2001.
`
`3 Applicant, in his response to opposer's cross motion, contends
`that opposer's cross motion was untimely because “opposer's time
`to respond [to his summary judgment motion] has run out. The
`date of service to the Opposer was on August 29, 2001 and
`Opposer's response is October 3 which is 35 days.”
`Applicant is incorrect. The Trademark Rules permit opposer
`thirty-five days to file and serve a response to applicant’s
`motion. Specifically, under Trademark Rules 2.127(e)(1) and
`2.119(c), respectively, opposer is permitted thirty days from the
`date of service of applicant's motion for summary judgment, plus
`an additional five days (because applicant's motion was served
`via first class mail), in which to file its response.
`
`2
`
`

`
`Opposition No. 115,805
`
`We first turn to opposer's motion to strike, which we
`
`hereby grant.
`
`If applicant's brief is viewed as a surreply
`
`filed in connection with applicant's summary judgment
`
`motion, the brief is impermissible under Trademark Rule
`
`2.127(e)(1).4 If the brief is viewed as a reply filed in
`
`connection with opposer's cross motion for summary judgment,
`
`the brief is late since applicant filed the brief beyond the
`
`period allowed by Trademark Rule 2.127(e) (fifteen days)
`
`plus the period allowed under Trademark Rule 2.119(c) for
`
`service by first-class mail (five days).5 Thus, we have
`
`given no consideration to “Applicant's Response to Opposer's
`
`Support of Cross-Motion for Summary Judgement & Applicant's
`
`Support for its Motion for Summary Judgement” and its
`
`exhibits.6
`
`We next turn to the motions for summary judgment,
`
`beginning with applicant's summary judgment motion.
`
`Summary judgment is an appropriate method of disposing
`
`of cases in which there are no genuine issues of material
`
`fact in dispute, thus leaving the case to be resolved as a
`
`4 Trademark Rule 2.127(e)(1) states that "The Board may, in its
`discretion, consider a reply brief. * * * No further papers in
`support of or in opposition to a motion for summary judgment will
`be considered by the Board."
`5 Opposer filed and served its response to applicant's summary
`judgment motion on October 3, 2001. Any reply by applicant
`should have been filed by October 23, 2001.
`6 Even if we were to consider “Applicant's Response to Opposer's
`Support of Cross-Motion for Summary Judgement & Applicant's
`Support for its Motion for Summary Judgement,” it would not
`change the result herein.
`
`3
`
`

`
`Opposition No. 115,805
`
`matter of law.
`
`See Fed. R. Civ. P. 56(c).
`
`The purpose of
`
`summary judgment is to avoid an unnecessary trial where
`
`additional evidence would not reasonably be expected to
`
`change the outcome.
`
`See Pure Gold, Inc. v. Syntex (U.S.A.),
`
`Inc., 739 F.2d 624, 222 USPQ 741 (Fed. Cir. 1984).
`
`A party
`
`moving for summary judgment has the burden of demonstrating
`
`the absence of any genuine issue of material fact, and that
`
`it is entitled to summary judgment as a matter of law.
`
`See
`
`Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548
`
`(1986).
`
`The evidence must be viewed in a light favorable to
`
`the non-movant, and all justifiable inferences are to be
`
`drawn in the non-movant’s favor. See Old Tyme Food, Inc. v.
`
`Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir.
`
`1992).
`
`In applicant's one and a half page summary judgment
`
`motion, applicant merely states that “CEREBRIL is at most a
`
`SUGGESTIVE MARK.”
`
`(Emphasis in the original.)
`
`However,
`
`applicant has not explained why it believes that its
`
`proposed mark is suggestive.
`
`Applicant also submitted
`
`several exhibits with his motion.7 However, many of the
`
`7 Applicant's exhibits include (a) information regarding a
`product named CEREBRIL taken from the web site of a corporation
`named Neurochem, Inc. which, according to applicant, is connected
`to opposer and is a “start –up” company in Canada; (b)
`information regarding trademark applications in the name of
`Neurochem, Inc. taken from the web sites of the Canadian
`Intellectual Property Office and the United States Patent and
`Trademark Office; (c) the first page of two of applicant's
`patents; (d) copies of correspondence between applicant and
`
`4
`
`

`
`Opposition No. 115,805
`
`exhibits cannot be allowed into the evidentiary record
`
`because they are not supported by an affidavit or
`
`declaration authenticating them. See Raccioppi v. Apogee,
`
`Inc., 47 USPQ2d 1368 (TTAB 1998) and Fed. R. Civ. P. 56(e).
`
`The remaining exhibits, which appear to be official records
`
`such as Canadian Intellectual Property Office records or
`
`Neurochem, Inc.’s United States trademark application for
`
`CEREBRIL, have little or no probative value on the questions
`
`of descriptiveness and suggestiveness.
`
`Thus, we find that
`
`applicant has failed to carry his initial burden, as the
`
`moving party, of making a prima facia showing of the absence
`
`of any genuine issues of material fact, and that he is
`
`entitled to judgment as a matter of law on the questions of
`
`suggestiveness and descriptiveness.
`
`Applicant's motion for
`
`summary judgment therefore is denied.
`
`We now turn to opposer's cross motion for summary
`
`judgment, where opposer contends that “consumers will
`
`perceive the term ‘cerebril’ as the descriptive word
`
`‘cerebral,’ or as a slight misspelling of that term.”
`
`Opposer maintains in its motion that there are no genuine
`
`issues of material fact in this case, and applicant has not
`
`identified any such issues in his response.
`
`Upon
`
`opposer's attorneys; (e) a copy of an email sent by a third party
`regarding CEREBRIL; (f) information from the Internet regarding
`the treatment of brain edema with acetazolamide; and (g)
`opposer's responses to applicant's first set of interrogatories
`and first request for production of documents.
`
`5
`
`

`
`Opposition No. 115,805
`
`consideration of the record before us, we find that there
`
`are no genuine issues of material fact and that this case is
`
`ripe for decision on summary judgment.8 Consequently, we
`
`must determine whether applicant's proposed mark is merely
`
`descriptive as a matter of law.
`
`After considering the
`
`evidence of record and the arguments presented, we find that
`
`summary judgment is warranted in opposer's favor.
`
`It is well settled that a term is considered to be
`
`merely descriptive of goods and/or services, within the
`
`meaning of Section 2(e)(1) of the Trademark Act, if it
`
`immediately describes an ingredient, quality,
`
`characteristic, function, feature, purpose or use of the
`
`relevant goods.
`
`See In re Gyulay, 820 F.2d 1216, 3 USPQ2d
`
`1009 (Fed. Cir. 1987); In re Bed & Breakfast Registry, 791
`
`F.2d 157, 229 USPQ 818 (Fed. Cir. 1986); In re MetPath Inc.,
`
`223 USPQ 88 (TTAB 1984); and In re Bright-Crest, Ltd., 204
`
`USPQ 591 (TTAB 1979). If so, the term may not be registered
`
`on the Principal Register, absent a showing of acquired
`
`8 This includes any question regarding opposer's standing in this
`case. To show standing, it is necessary for opposer to prove
`that it is engaged in the sale of goods of which the applied-for
`mark is allegedly descriptive. Plyboo America Inc. v. Smith &
`Fong Co., 51 USPQ2d 1633 (TTAB 1999). Here, opposer has filed
`the declaration of Cynthia Summerfield, opposer's Associate
`General Counsel, with opposer's cross motion, which establishes
`that opposer tests, manufactures and distributes drugs that treat
`or relate to disorders and conditions of the brain; and that
`opposer commonly uses the term “cerebral” “to describe the
`therapeutic indications of the pharmaceuticals they test,
`manufacture and sell that treat brain or cerebral disorders and
`conditions.” Opposer therefore has established, as a matter of
`law, its standing to oppose applicant's mark.
`
`6
`
`

`
`Opposition No. 115,805
`
`distinctiveness.9 Trademark Act §§ 2(e)(1), 2(f); 15 U.S.C.
`
`§§1052(e)(1), 1052(f).
`
`It is not necessary that a term
`
`describe all the characteristics or features of the goods in
`
`order for it to be considered merely descriptive.
`
`It is
`
`sufficient if the term describes one significant attribute
`
`of the goods.
`
`In re Pennzoil Products Co., 20 USPQ2d 1735
`
`(TTAB 1991).
`
`Whether a term is merely descriptive is determined not
`
`in the abstract, but in relation to the goods or services
`
`for which registration is sought, the context in which it is
`
`being used on or in connection with those goods or services,
`
`and the possible significance that the term would have to
`
`the average purchaser of the goods or services because of
`
`the manner of its use.
`
`In re Bright-Crest, Ltd., 204 USPQ
`
`591, 593 (TTAB 1979).
`
`We now consider whether the term “cerebral” is merely
`
`descriptive in connection with applicant's goods in view of
`
`the evidence of record.
`
`The evidence of record includes the
`
`pleadings; the file of the involved application; the
`
`official records filed by applicant with his summary
`
`judgment motion; opposer's response to applicant's first set
`
`of interrogatories and first request for production of
`
`9 A showing of acquired distinctiveness is ordinarily unavailable
`in an intent to use application, such as the application involved
`in this proceeding.
`
`7
`
`

`
`Opposition No. 115,805
`
`documents;10 the declaration of Cynthia Summerfield,
`
`opposer's Associate General Counsel; the first declaration
`
`of Edward Whalen, a trademark paralegal with opposer's law
`
`firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.,
`
`filed in support of opposer's cross motion; applicant's
`
`declaration filed in support of his response to opposer's
`
`cross motion; and Mr. Whalen’s second declaration filed with
`
`opposer's reply to its cross motion.
`
`See Fed. R. Civ. P.
`
`56(e); and Trademark Rules 2.112(b), 2.112(e) and
`
`2.127(e)(2).
`
`Opposer has enclosed several dictionary definitions of
`
`“cerebral” with Mr. Whalen’s first declaration.
`
`For
`
`example, in Merriam-Webster’s Collegiate Dictionary (10th
`
`Ed. 1995), “cerebral” is defined as “of or relating to the
`
`brain”; and in The American Heritage Dictionary (1985),
`
`“cerebral” is defined as “of or pertaining to the brain or
`
`cerebrum.” First Whalen declaration at Paragraph 2,
`
`Exhibits 1 and 2. Because applicant's pharmaceutical
`
`preparations are used for treatment of a brain condition,
`
`and “cerebral” is defined as “of or relating to the brain,”
`
`10 Opposer's response to applicant's first set of interrogatories
`and first request for production of documents merely recites
`objections to applicant's interrogatories and document requests,
`a statement that opposer “is in the process of searching for
`information” and that it reserves “the right to supplement its
`responses ….” Applicant need not have filed a copy of opposer's
`response because it does not contain any substantive evidence
`relating to this case.
`
`8
`
`

`
`Opposition No. 115,805
`
`we conclude that applicant's pharmaceutical preparations can
`
`be described as used for a cerebral condition. “Cerebral”
`
`hence describes a feature or use of applicant's
`
`pharmaceutical preparations.
`
`Applicant himself uses “cerebral” to refer to the
`
`brain, and more particularly uses “cerebral edema”
`
`interchangeably with “brain edema” in the context of a
`
`pharmaceutical treatment for brain edema.
`
`See, the
`
`abstracts of applicant's U.S. Patent No. 5,755,237 entitled
`
`“Therapeutic use of Acetozolamide for the Treatment of Brain
`
`Edema” and applicant's U.S. Patent No. 5,944,021 entitled
`
`“Therapeutic Use of a Carbonic Anhydrase Enzyme Inhibitor
`
`for the Treatment of Brain Edema,” which state: “A method
`
`for treating victims of cerebral edema ….”
`
`(Emphasis
`
`added.)
`
`See also the introduction and prior art sections of
`
`both of these patents, which state:
`
`This invention relates to the medical treatment of
`victims of cerebral edema, and especially to the
`relief of brain swelling as a result of ischemic
`strokes especially [sic], but also swelling due to
`tumors, surgeries, or cerebral trauma, which
`swelling usually results in severe disability and
`often death of the patient.
`
`*
`
`*
`
`*
`
`U.S. Patent No. 5,389,630 was issued Feb. 14, 1995
`to Sato, et al., claiming an array of certain
`diamine compounds and their use for treating
`disorders of cerebral function or preventing the
`progress of such disorders, including cerebral
`hemorrhage, cerebral infarction, subarachnoid
`
`9
`
`

`
`Opposition No. 115,805
`
`hemorrhage, transient ischemic attack,
`cerebrovascular disorders, and the like.
`
`*
`
`*
`
`*
`
`Accordingly, cerebral protective drugs that
`promise excellent clinical effect and are readily
`available and useful for oral or intravenous
`administration are to be desired.
`
`(Emphasis added.) First Whalen declaration at
`
`Paragraph 5, Exhibits 52 and 53.
`
`Others also use “brain” and “cerebral”
`
`interchangeably in the context of edema. Opposer has
`
`submitted with Mr. Whalen’s first declaration numerous
`
`“commonly available trade publications, newspapers, and
`
`magazines [which reveal] that the term ‘cerebral’ is
`
`used interchangeably with the term ‘brain’ to describe
`
`a brain swelling condition known as ‘cerebral edema’ or
`
`‘brain edema.’”
`
`The following are representative
`
`excerpts from such trade publications, newspapers and
`
`magazines:
`
`A decline in ICP can be achieved by dehydration of
`the brain, thus decreasing brain edema.
`Cerebral
`edema results from an increase in brain volume and
`usually peaks 48-72 hours post injury.
`Types of
`cerebral edema include …. Mary Dee Fisher,
`Pediatric Traumatic Brain Injury; Critical Care
`Pediatrics, Critical Care Nursing Quarterly, May
`1997.
`(Emphasis Added.) (First Whalen
`declaration, Paragraph 4, Exhibit 39.)
`
`Cerebral edema is a swelling of the brain caused
`by accumulation of water, and is fatal in as many
`as 90% of children who develop it. It is the
`leading cause of diabetes-related deaths in
`children.
`Thomas H. Maugh, Say AAAH; Capsules;
`Hair Dye, Cancer May be Linked After All, Los
`
`10
`
`

`
`Opposition No. 115,805
`
`(Emphasis
`Angeles Times, January 29, 2001.
`Added.)
`(First Whalen declaration, Paragraph 4,
`Exhibit 21).
`
`Such brain swelling, called cerebral edema, is
`responsible for up to 60 percent of diabetes-
`related deaths in children.
`A Diabetic Treatment
`is Linked to Deaths, The New York Times, January
`26, 2001. (Emphasis Added.)
`(First Whalen
`declaration, Paragraph 4, Exhibit 22).
`
`Disturbed ratios of the three amino acids occur as
`leucine rises, causing the onset of varied and
`subtle signs of focal cerebral edema, which
`ultimately can be fatal for any child. Early signs
`of localized brain edema include ataxia, anorexia,
`slurred speech, high pitched cry, hallucinations,
`increased gag reflex, dilated pupils, vomiting,
`lethargy, and/or hyperactivity.
`Donna Robinson
`and Leigh-Anne Drumm, Maple Syrup Disease: A
`Standard of Nursing Care, Pediatric Nursing, May
`1, 2001.
`(Emphasis Added.)
`(First Whalen
`declaration, Paragraph 4, Exhibit 37).
`
`Changes such as increased permeability of the
`blood-brain barrier, cytotoxic and vasogenic
`cerebral edema and intracranial hypertension can
`lead to a reduction in cerebral blood flow.
`Because of their anti-inflammatory effects and
`efficacy in reducing vasogenic brain edema,
`corticosteroids may be useful adjuncts to
`antimicrobial therapy.
`Dexamethasone Therapy for
`Bacterial Meningitis, American Family Physician,
`March 1989.
`(Emphasis Added.)
`(First Whalen
`declaration, Paragraph 4, Exhibit 38).
`
`“The management of cerebral edema is one of the
`unsolved problems in neurology and neurosurgery,"
`Dr. Huxtable notes, "but ginkgo extract has proven
`effective in animal experiments to reduce
`chemically-induced brain edema.”
`Rob McCaleb,
`Ginkgo: Circulation Herb, Better Nutrition for
`Today's Living, February 1993. (Emphasis Added.)
`(First Whalen declaration, Paragraph 4, Exhibit
`40).
`
`Cortex Pharmaceuticals Inc., a small biotech firm,
`and Alkermes Inc. of Cambridge, Mass., said Friday
`that they have settled a lawsuit over development
`
`11
`
`

`
`Opposition No. 115,805
`
`of a drug to treat cerebral blood vessels ….
`Cortex's research on uses of the drug for cerebral
`vasospasm violated Alkermes' exclusive right … .
`Cortex, Massachusetts Firm Settle Rights Dispute,
`Los Angeles Times, October 8, 1995.
`(Emphasis
`Added.)
`(First Whalen declaration, Paragraph 3,
`Exhibit 7).
`
`A frequent cause of death in severe cases of liver
`failure is cerebral edema, the swelling of the
`brain.
`Josephine Marcotty, The Genesis of an
`Artificial Liver, Star Tribune (Minneapolis, MN),
`March 15, 2000. (Emphasis Added.)
`(First Whalen
`declaration, Paragraph 4, Exhibit 32).
`
`Applicant, on the other hand, has failed to present
`
`persuasive evidence to support his claim that his proposed
`
`mark is not merely descriptive when used in connection with
`
`the goods identified in his application. Applicant's
`
`personal declaration with its 14 exhibits, filed with
`
`applicant's response to the cross motion, does not raise a
`
`genuine issue of material fact in connection with the cross
`
`motion.
`
`The search results on the “OneLook [Internet]
`
`Dictionaries” for CEREBRIL only establish that the term is
`
`not in that dictionary.
`
`See Exhibit 1 of applicant's
`
`declaration.
`
`However, opposer's contention was never that
`
`CEREBRIL is a descriptive word; its contention is that
`
`CEREBRIL is a misspelling of “cerebral,” which is merely
`
`descriptive of applicant's identified goods. Thus, that
`
`CEREBRIL does not appear in a dictionary is not dispositive
`
`of the issues at hand.
`
`Further, the Internet search results
`
`of Exhibits 2-7 for CEREBRIL are of no probative value
`
`because many of the summaries do not even include the term
`
`12
`
`

`
`Opposition No. 115,805
`
`CEREBRIL, applicant has not included the full text of the
`
`websites identified in the summaries, and many of the
`
`summaries are in foreign languages and applicant has not
`
`provided an English translation of the foreign language
`
`summaries.
`
`If the contents of the websites helped to
`
`establish that “cerebral” or CEREBRIL is not merely
`
`descriptive, applicant should have introduced printouts of
`
`the websites themselves, showing the context in which
`
`“cerebral” or CEREBRIL appears in the websites.
`
`The
`
`remaining evidence submitted by applicant (e.g., the
`
`excerpts from the Canadian Intellectual Property Office) is
`
`of no probative value regarding the issues in this case.
`
`Applicant also appears to incorporate by reference in
`
`his response to opposer's cross motion arguments applicant
`
`made during the ex parte prosecution of this case, such as
`
`his claim that he coined the proposed mark from “‘cereb’
`
`from cerebrum and ‘ril’ from a generic diuretic drug
`
`Hydrodiuril,” and the arguments made in his answer to the
`
`Notice of Opposition.
`
`Inasmuch as they do not address the
`
`significant evidence introduced by opposer in support of its
`
`contention that the proposed mark is merely descriptive,
`
`applicant's arguments are of limited weight in resolving the
`
`cross motion.
`
`In view of the foregoing, we conclude that the
`
`arguments and the evidence introduced by opposer, which have
`
`13
`
`

`
`Opposition No. 115,805
`
`not been persuasively countered by the arguments and
`
`evidence introduced by applicant, establish that “cerebral”
`
`is merely descriptive of a function and a use of applicant's
`
`goods.
`
`Having found the term “cerebral” merely descriptive in
`
`this context, we turn next to the question of whether, as
`
`argued by opposer, applicant's alleged trademark, CEREBRIL
`
`would be perceived by relevant consumers as the term
`
`“cerebral.”
`
`Whether a novel spelling of a descriptive term is also
`
`merely descriptive depends upon whether purchasers would
`
`perceive the different spelling as largely the equivalent of
`
`the descriptive term.
`
`As Professor McCarthy notes, a
`
`"slight misspelling of a word will not generally turn a
`
`descriptive word into a non-descriptive mark."
`
`2 T.J.
`
`McCarthy, McCarthy on Trademarks and Unfair Competition,
`
`§11.31 (4th Ed. 1998).
`
`The spelling of CEREBRIL differs from “cerebral” only
`
`by one letter at the terminal portion thereof.
`
`Thus, the
`
`terms are visually highly similar.
`
`Additionally, they are
`
`highly similar in sound; “il” at the end of CEREBRIL is
`
`virtually indistinguishable in sound from “al” at the end of
`
`“cerebral,” when CEREBRIL and “cerebral” are spoken.
`
`Thus,
`
`we agree with opposer that CERERBRIL is a slight misspelling
`
`of “cerebral” and that the consuming public would perceive
`
`14
`
`

`
`Opposition No. 115,805
`
`CEREBRIL as “cerebral” or as a slight misspelling of
`
`“cerebral.”11
`
`Thus, we find that applicant's proposed mark is merely
`
`descriptive of the goods recited in applicant's
`
`application, grant opposer's cross motion for summary
`
`judgment and deny applicant's motion for summary judgment.
`
`Judgment is therefore entered against applicant and
`
`registration of applicant's proposed mark is refused.
`
`Also, opposer's “Request for Clarification and
`
`Modification of Orders” is denied as moot, and applicant's
`
`motion for sanctions is given no consideration because the
`
`Board had ordered applicant not to file the motion in its
`
`order mailed on October 15, 2001.
`
`11 The parties have made much of opposer's evidence in support of
`its contention that CEREBRIL is a common misspelling of
`“cerebral.” Opposer, pursuant to the Mr. Whalen’s first
`declaration, filed a printout of a computer spell-check program
`showing that CEREBRIL was not in the program’s dictionary and
`offering “cerebral” as a correction; and filed excerpts of
`searches on the Internet search engines www.msn.com,
`www.altavista.com and www.google.com. According to opposer, “the
`search engine automatically inquired whether the user meant to
`search the term ‘cerebral.’” See first Whalen declaration,
`paragraph 6. Applicant maintains that he conducted the searches
`Mr. Whalen conducted, notes that his results were different from
`those of Mr. Whalen, and filed a copy of his search results for
`CEREBRIL as Exhibits 9-14 to his personal declaration. He
`concludes that Mr. Whalen “MALICIOUSLY ERASED THE SEARCHED
`REPORTS ON THE TERM ‘CEREBRIL’ WITH THE INTENT TO DECEIVE THE
`BOARD AND THE APPLICANT IN THIS OPPOSITION.” (Capitalization in
`the original.)
`The spell check software inquiry, Mr. Whalen’s Internet
`inquiries for CEREBRIL, and applicant's duplication of Mr.
`Whalen’s Internet searches are of little probative value on the
`issues involved in this case. We have given them scant
`consideration.
`
`15

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