Trademark Trial and Appeal Board Electronic Filing System. 39145
`
`ESTTA Tracking number: ESTTA20669
`
`Filing date3
`
`12/06/2004
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`91158743
`Plaintiff
`Golden Gate Fireworks, Inc.
`
`Proceeding
`
`Party
`
`7 R
`
`1 Z
`
`ichard P. sun
`i SHUGHART THOMSON & KILROY, PC
`Correspondence ;
`Address
`: 32 Corporate Woods; Ste 1100' 9225 Indian Creek Parkway
`Overland Park, KS 66210
`
`Submission
`
`Motion to Amend P1eading/Amended Pleading
`
`Filer's Name
`
`Richard P. Stitt
`
`Date
`
`12/O6/2004
`Opposer's Motion to File Second Amended Notice.pdf( 4 pages )
`Second Amended Notice with Exhibits.pdf( 12 pages )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No.
`
`78/206,944
`
`For the mark:
`
`IF IT’S NOT TNT, IT’S NOT FIREWORKS
`
`Published in the Official Gazette: September 30, 2003, at TM 174
`
`Golden Gate Fireworks, Inc.
`
`Opposer,
`
`vs.
`
`American Promotional Events, Inc.
`
`Applicant.
`
`\_/\_/\_/\_/\_/\_/\_/\_/\_/
`
`Opposition No. 91158743
`
`OPPOSER’S MOTION TO FILE SECOND AMENDED NOTICE OF OPPOSITION
`
`Opposer, in the above—identified proceeding, moves the Board for permission to file a
`
`Second Amended Notice of Opposition to correct deficiencies in its First Amended Notice Of
`
`Opposition as identified by Applicant in its Motion to Dismiss Opposer’s First Amended Notice
`
`of Opposition or, in the Alternative, to Strike. In support of its Motion Opposer states:
`
`1.
`
`Applicant, in its Motion to Dismiss Opposer’s First Amended Notice of Opposition
`
`or, in the Alternative, to Strike, believes it has located a number of infirmities in Opposer’s First
`
`Amended Notice of Opposition.
`
`16436231
`
`

`
`2.
`
`To avoid unnecessary consumption of the Board’s time, the Applicant directly offers
`
`its Second Amended Notice of Opposition which closely n1irrors the Board’s test for deceptiveness
`
`of In re Shapely, Inc.1 and which test was adopted by the Federal Circuit in In re Budge Mfg.2
`
`3.
`
`As Opposer distills Applicant’s Motion to Dismiss, Applicant asserts that Opposer
`
`failed to present its notice pleading under Section 2(a) of the Trademark Act in terms that identify
`
`Applicant’s deceptive representation of Applicant’s goods rather than Opposer’s damage as a result
`
`of Applicant’s deceptive mark.
`
`4.
`
`Opposer believes its Second Amended Notice of Opposition has corrected this
`
`deficiency in its notice pleading, and that the specifics of Applicant’s deceptiveness under Section
`
`2(a) are now concretely revealed to Applicant.
`
`5.
`
`Opposer appreciates the Board’s advisory in Footnote 4 of its ORDER. Opposer
`
`understands the Board is limited to matters related to registrability, and that the Board does not have
`
`jurisdiction over claims of unfair competition or false advertising. Opposer will take up those claims
`
`through the Federal Trade Commission and the district courts under Anheuser—Busch Inc. v. John
`
`LaBatt Ltd.3
`
`6.
`
`The Board, at page eight of its ORDER, determined only that “the pleading is
`
`ambiguous because it is not apparent whether opposer is relying on Section 2(a) or Section 2(e)(1) of
`
`the Trademark Act.” Opposer was specific in its First Amended Notice of Opposition that it was
`
`relying upon Section 2(a) of the Trademark Act, however, Opposer failed to restate the claim in
`
`terms of Applicant’s deceptiveness rather than Opposer’s damage. That correction is made in this
`
`Second Amended Notice of Opposition.
`
`1 In re Shapely, Inc., 231 USPQ 72 73 (TTAB 1986).
`
`2 In re Budge Mfg. Co., Inc., 8 USPQ2d 1259, 1260 (Fed. Cir. 1988).
`
`3 Anheuser—Busch Inc. v. John LaBatt Ltd., 89 F.3d 1339 (8th Cir. 1996).
`
`16436231
`
`

`
`7.
`
`Applicant has not filed an answer in the present matter, therefore it will not be
`
`prejudiced by the filing of this Second Amended Notice of Opposition.
`
`WHEREFORE, Opposer requests that the Board enter the attached Second Amended Notice of
`
`Opposition in response to Applicant’s Motion to Dismiss Opposer’s First Amended Notice of
`
`Opposition or, in the Alternative, to Strike
`
`Respectfully submitted,
`
`GOLDEN GATE FIREWORKS, INC.
`
`Opposer
`
`By: Shughart, Thomson & Kilroy, P.C.
`
`/Richard P. Stitt/
`
`Richard P. Stitt
`
`Lawrence A. Swain
`
`32 Corporate Woods, Suite 1100
`9225 Indian Creek Parkway
`Overland Park, Kansas 66210
`
`Telephone:(9l3) 451-3355
`Facsimile:
`(913) 451-3361
`
`ATTORNEYS FOR OPPOSER
`
`Dated:
`
`12/06/2004
`
`16436231
`
`

`
`CERTIFICATE OF ESTTA FILING
`
`I hereby certify that a copy of the foregoing paper was filed electronically with the
`Trademark Trial and Appeal Board via the ESTTA on the 6th day of December 2004.
`
`/Richard P. Stitt/
`
`Richard P. Stitt
`
`CERTIFICATE OF MAIL SERVICE
`
`I hereby certify that this OPPOSER’S MOTION TO FILE SECOND AMENDED
`NOTICE OF OPPOSITION AMENDED NOTICE OF OPPOSITION is being deposited with
`the U.S. Postal Service by First Class Mail on December 6, 2004 in an envelope addressed to:
`
`Michael R. Annis
`
`Blackwell Sanders Peper Martin, LLP
`720 Olive Street, Suite 2400
`
`St. Louis, MO 63101
`
`/Richard P. Stitt/
`
`Richard P. Stitt
`
`16436231
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No.
`For the mark:
`
`78/206,944
`IF IT'S NOT TNT, IT'S NOT FIREWORKS
`
`Published in the Official Gazette:
`
`September 30, 2003, at TM 174
`
`Golden Gate Fireworks, Inc.
`
`Opposer,
`
`vs.
`
`American Promotional Events, Inc.
`
`Applicant.
`
`Q/§f§\{€é§/\/S
`
`Opposition No. 91158743
`
`SECOND AMENDED NOTICE OF OPPOSITION
`
`The Opposer, Golden Gate Fireworks, |nc., a California corporation having a
`
`business address of 360 Post Street, Suite 705, San Francisco, CA, believes it will be
`
`damaged by the registration of the mark shown in Application Serial No. 78/206,944 in
`
`International Class 013 for fireworks; and in International Class 035 for wholesale and
`
`retail store services in the field of fireworks; and in International Class 016 for paper
`
`products, namely posters; and in International Class 025 for clothing, namely t-shirts,
`
`jackets, caps, sweatshirts; and hereby opposes the same.
`
`As grounds for the opposition, it is alleged that:
`
`16433322
`
`

`
`1. Upon information and belief, Applicant, American Promotional Events, Inc., is an
`
`Alabama corporation with its principal place of business at 4511 Helton Drive,
`
`Florence, Alabama 35630.
`
`2. Applicant seeks to register the mark IF IT ‘S NOT TNT, IT’S NOT FIREWORKS in
`
`International Class 013 for fireworks; and in International Class 035 for wholesale
`
`and retail store services in the field of fireworks; and in International Class 016 for
`
`paper products, namely posters; and in International Class 025 for clothing, namely
`
`t-shirts, jackets, caps, sweatshirts as evidenced by the publication of said mark in
`
`the Official Gazette of the U. S. Patent and Trademark Office of September 30,
`
`2003, at page TM 197. (Exhibit A).
`
`3. The BLACK CAT (and Design) (hereinafter "BLACK CAT") trademark was
`
`registered as U.S. Trademark Reg. No. 828,730 for BLACK CAT on May 16, 1967,
`
`and was first used February 23, 1952, for firecrackers and fireworks in International
`
`Class 13. (Exhibit B).
`
`4. By virtue of long years of use and extensive promotion and extensive advertising
`
`and sale of goods under the BLACK CAT trademark, the BLACK CAT trademark
`
`has become a Famous Mark in the mind of the public and has become closely and
`
`uniquely associated with Opposer and with the goods it offers, in particular fireworks
`
`and firecrackers.
`
`5. Opposer, Golden Gate Fireworks, Inc., since, at least, 1989, has held the exclusive
`
`right and license in the United States to use the Black Cat trademark on goods
`
`manufactured in the United States.
`
`6. Opposer, Golden Gate Fireworks, Inc., since, at least, 1989, has held the exclusive
`
`right and license in the United States to sublicense the right to use the Black Cat
`
`trademark on goods manufactured in the United States.
`
`16433322
`
`

`
`7.
`
`Opposer, Golden Gate Fireworks, Inc., since, at least, 1989, has held the exclusive
`
`right to manufacture in the United States and to sublicense the right to manufacture
`
`in the United States products bearing the Black Cat trademark.
`
`Due to Opposer’s long years of extensive promotion, advertising and sale of goods
`
`under the mark, BLACK CAT, Opposer’s marks have become well known and are
`
`closely and uniquely associated with Opposer and with the goods it offers, in
`
`particular, fireworks and firecrackers.
`
`By virtue of the efforts and expenditures of the Opposer, in conjunction with the
`
`owner of the BLACK CAT trademark, and by virtue of the quality of the goods
`
`distributed by Opposer, Opposer has developed, in conjunction with the trademark
`
`owner, a valuable reputation and considerable goodwill in the BLACK CAT mark
`
`and the goods associated with the mark, and Opposer believes its business, in
`
`particular, its business related to the BLACK CAT trademark, will be damaged if
`
`Applicant’s mark is registered.
`
`10.
`
`Opposer’s use of the BLACK CAT pre-dates Applicant’s filing of the IF IT'S NOT
`
`TNT, IT'S NOT FIREWORKS, application Serial No. 78/209,944 and Applicant’s
`
`use of the IF IT'S NOT TNT, IT'S NOT FIREWORKS mark.
`
`11.
`
`Opposer believes that registration of Applicant’s IF IT’S NOT TNT, IT'S NOT
`
`FIREWORKS mark in the manner suggested would damage Opposer and the
`
`relevant public for the following reasons;
`
`a.
`
`Applicant’s mark is deceptive under Section 2(a) and will deceive the
`
`relevant public as to the nature and quality and safety of Applicant’s TNT
`
`fireworks over other such goods through the false representation that
`
`Applicant’s TNT goods uniquely are fireworks to the exclusion of other’s
`
`fireworks from the generic class of fireworks; and
`
`16433322
`
`

`
`b.
`
`Applicant's mark is not merely laudatory and descriptive of the alleged
`
`merit of Appiicant’s goods, nor is applicant's mark a condensed form of
`
`describing the character or quality of Appiicant’s goods as it falsely claims
`
`Applicant's goods to be, exclusively, the only actual fireworks available to
`
`the public thereby misleading and confusing the public as to the true
`
`nature of an inherently dangerous product — fireworks — by Appiicant’s
`
`attempt to appropriate for the Applicant's goods the generic term
`
`“fireworks"; and
`
`V
`
`c.
`
`Appiicant’s mark misdescribes Appiicant’s goods by claiming Appiicant’s
`
`goods to be the only fireworks available to the relevant public to the
`
`exclusion of fireworks produced by others; and
`
`d.
`
`Appiicant’s mark, in addition to being misdescriptive, is deceptive as a
`
`substantial part of the relevant public for fireworks — children — are gullible
`
`and are likely to believe Appiicant’s deceptive representation and sustain
`
`injury as a result of the misrepresentation as “children ages 5 to 9 years of
`
`age have the highest injury rate for fireworks-related injuries and as in
`
`2003 45% or 4,185 of the estimated 9,300 injuries treated in emergency
`
`departments for fireworks-related injuries were children under the age of
`
`14 years of age“ (Exhibit C); and
`
`e.
`
`Applicant's misdescriptive and deceptive representation (inter alia: that
`
`only Appiicant’s goods are fireworks) will materially affect the decision of
`
`the relevant public to purchase Applicant's goods as a result of Appiicant’s
`
`deceptive representation that only its goods are fireworks, and deceiving
`
`the public to believe that no substitute fireworks goods exist for purchase
`
`by the relevant public.
`
`‘ Fireworks-Related Injuries; United States Centers for Disease Control and Prevention
`(CDC); www.cdc.gov/ncipc/factsheets/fworks.htm.
`
`l643332.2
`
`

`
`12. By reason of the foregoing, Applicant is not entitled to registration under Sections
`
`2(a) and 13 of the Lanham Act, 15 U.S.C. §§ 1052 and 1063, as Opposer and the
`
`relevant public would be damaged by said registration.
`
`WHEREFORE, Opposer respectfully prays that this opposition be sustained, and
`
`that the application for registration of IF IT'S NOT TNT, IT'S NOT FIREWORKS, Serial
`
`No. 78/206,944 in International Class 013 for fireworks; and in International Class 035
`
`for wholesale and retail store services in the field of fireworks; and in International Class
`
`016 for paper products, namely posters; and in International Class 025 for clothing,
`
`namely t-shirts, jackets, caps, sweatshirts be denied.
`
`The fee of $1200 has previously been paid for opposing each of the above-
`
`identified classes of registration.
`
`Respectfully submitted,
`
`GOLDEN GATE FIREWORKS, INC.
`Opposer
`
`By: Shughart, Thomson & Kilroy, P.C.
`
`/Richard P. Stittl
`Richard P. Stitt
`
`Lawrence A. Swain
`
`32 Corporate Woods, Suite 1100
`9225 Indian Creek Parkway
`Overland Park, Kansas 66210
`Te|ephone:(913) 451-3355
`Facsimile:
`(913) 451-3361
`
`ATTORNEYS FOR OPPOSER
`
`Dated:
`
`12/06/2004
`
`l643332.2
`
`

`
`CERTIFICATE OF ESTTA FILING
`
`l hereby certify that a copy of the foregoing paper was filed electronically with the Trademark Trial
`and Appeal Board via the ESTTA on the 6th day of December 2004.
`
`/Richard P. Stittl
`Richard P. Stitt
`
`CERTIFICATE OF MAIL SERVICE
`
`I hereby certify that this AMENDED NOTICE OF OPPOSITION is being deposited with the U.S. Postal
`Service by First Class Mail on December 6, 2004 in an envelope addressed to:
`
`Michael R. Annis
`
`Blackwell Sanders Peper Martin, LLP
`720 Olive Street, Suite 2400
`St. Louis, MO 63101
`
`/Richard P. Stittl
`Richard P. Stitt
`
`I6433322
`
`

`
`US. PATENT AND TRADEMARK OFFICE
`
`TM I97
`
`" sari. so. 2003
`1*“.-‘U -CLASS 30—5'I'AI'LE FOODS
`FOR CONDIMENTS. NAMELY FRUIT DIPPINO
`CES. MUSTARD. CHOCOLATE SYRUP CORN SYR-
`UP AND FLAVORINO SYRUP. ORILLIN5 EARIECUE
`SAUCES. COOKIES. CHOCOLATE CONPECTIONS.
`NAMELY CANDI‘E‘S. TEAS. FRUITCARES AND NUT -
`cums (u.s. CL.
`).
`
`;
`
`-——-n:-—-:-—
`
`.
`CLASS I3—FIREARMS
`FOR nnewonucs (u.s. CLS. 2 AND 9).
`
`CLASS I6-4-PAPER‘-GOODS AND PRINTED
`MATTER
`FOR PAPER PRODUCTS. NAMELY POSTERS (U.S.
`CLS. 2. S. 22. 23, 29. 37. 38 AND 50).
`
`SN‘II-a2£§.I01. EMPTY CUI’ IIC.NEW YORK.NY. FILED I-
`N -
`‘
`
`CI.-ASS3s—CLO'|'IIING
`FOR CLOTHING NAMELY 'r.snuns. ucxrrs.
`CAPS. SWEATSHIRTS (us. Cu. 22 AND 39).
`
`CI.A$ 35——ADVER'I‘ISING AND DUSINX _
`FOR WHOLESALE AND RETAIL STORE SERVICES IN
`'33’! FIELD OF FIREWORKS (U.S. CLS.
`I00.
`I01 AND
`
`
`
`
`CLAS 30-S'I'AI’LE FOODS
`I-or rm mo I-IERIAL 1us- m- IEVIRAOBS:
`aaveuoas mun wrm A uni or nu; unav-
`1'0-DRINK m IEVEIAOE9 1.1 ml: AND row.
`nsusn m nvuma mx -
`vounos P03
`13 nevzuoar nun‘ oooc nunmx
`mcunk.
`coo I Mumué. soon
`AND
`AND an 0:; 1c: cum vouao
`noun conncnous. CIIOOOLATE. cmmf. AND
`CONFEC1'IONS(U.S. CL. 4:).
`
`CLASS 35--ADVERTISING AND EUSINES
`row. wngwsaus sumx nmm. 0
`mm.
`own A n
`run: dawn on
`sn-
`vxcas mm mo 1-an rowowmo .-m n
`HERIAI. nu. m nmnuoasiasvuuan mm:
`Inn: A us: or TEA. RIADY-
`‘m -
`ERED m nvnuoa
`BRAGB8:
`;
`.
`son munxs. vm1-n- onssnrs mu uxao
`oooos. NAMEI.Y.co0KI
`. MUFFINS scams us-
`CUI1'S.PAS'I‘R|ES. nuns ICE cunfi ruwdun
`nces. hzozau courecnohskgnoco
`cmnv.
`AND comracnons. slmow as AND 7 mmm
`rooos. euecmczu. APPLIANC
`uauuv m
`xa-nus. nousavmv.
`n-gbgrnxc APPLI-
`-
`LATED
`ANCES AND-RELATED
`BEVERAGE CU
`COA
`TEA 3“ RN‘:MUOS.
`TEA
`OE CA
`NEWSLET-
`TERS AN IAOAZI
`MUSICAL RE®
`‘I’-
`APR
`SVIEA
`ER
`ONS
`(U.S. CLS1.‘I'W. IOI AND I01).
`
`
`SN ‘I8-105.944. AMERICAN PROMOTIONAL EVENTS. INC.
`FLORENCE. AL FILED I-24-IDS.
`7
`
`IF rr*s NOT TNT, l'l"S,N0'l‘.
`‘I
`muzwonxs .
`i_
`I.
`
`.
`
`owner’. or us. ‘me. NO. 1,m.u3?
`
`200-394D—SlG 9
`
`SN 7|-201.532. IAFFE. MAX. DALLAS. TX. FILED I-27-2003.
`
`FINANCIAL FUEL GAUGE
`
`N0 CLAIM Is MADE to THE EXCLUSIVE mom ‘to
`USE “I'lNANCIAL'.‘APAR'I"FROM THE MARK AS
`SHOWN.
`’
`'
`
`CLAS 36—&URANCE AND FINANCIAL
`POI. nwnice oonsumuo. NAIIELY. consum-
`mo wrm mouvunuau in menu to man
`rensoum. nwngca; (us. cu. ma. non AND I02).
`
`CI-ASS 4I——EDUCA’I'ION AND ENTERTAIN-
`MDIT
`'
`FOR EDUCATIONAL SERVICES. NAMELY. CON-
`DUCTING CLASSES CONFERENCES AND WORK-
`SHOPS IN THE FIELD OF PERSONAL FINANCE (U.S.
`CLS. I00. IOI AND I01).
`
`
`SN ‘IS-Wlal. OREAT NORTHERN ARTS. LTD“ SANTA
`IARSA . CA. FILED I-27-IDS.
`
`THE NAME IN THE MARK DOES NOT IDQHTIFY A
`LIVINOINDIVIDUAL.
`
`cuss 9-nnncmcn. AND‘ scmrfrmc
`
`
`96!. ch 'A1'1oIocuun1§'‘ ' '
`
`VIDEOTAPE!‘ ovbs
`AND‘lIIO
`um‘ uoonni; ALI.’ com mma
`3'
`MUSIC (11.3. cm. :1. :3. as. ye AND
`Iéllwrussu-mo: moouuucn «mm.
`5
`
`cuss .41—1:nucA119N AND
` .
`-.
`-
`. .
`.
`.
`V
`'
`I-‘OI. nu-rn'rAmum'r. muiuvi ‘LIVE fanni-
`A
`euro
`NCESIY A
`RHINO IIUSICIA-N (U.S. CLS.
`IN. IOI AND lI‘?.
`-
`‘
`FIRST USE 0-0- 988; IN ®MMERCE 0-0-I9“.
`
`Exhibit A
`
`

`
`Mark
`
`Statue
`Statu Date
`
`Register
`
`SerIalIApp. No.
`Registration No.
`
`IL8. Clan
`Goodalservieea
`lnt'l Clan
`lat Use
`Commerce Use
`
`Filing Dnte
`Registered
`Renewed
`
`Amdavita
`
`Design Code:
`
`Registrant
`
`Last Owner
`
`ASSIGNMENTS
`
`ReeIIFrame
`Aaaignoru)
`Aaalgneeo)
`
`Date SgndIAek
`Date Recorded
`Brief
`
`BLACK CAT (and Design)
`
`Renewed
`Oct 26, 1987
`Principal
`
`72458634
`828730
`
`9 - Explosives, Fireanns, Equipments, and Projectiles
`FIRBCRACKERS AND FIREWORKS
`13
`Feb 23, I952
`Feb 23, I952
`
`Dec 6, 1962
`May 16, 1967
`May I6, 1987
`
`See. 8 accepted; Sec. 15 acknowledged
`
`030104 - Cats. Domestic Cats
`030116 - Heads of cats, dogs, wolves, foxes, bean, lions, tigete
`
`u .9; runs, LTD. Hone xono CORP.
`CENTRAL G.P.O. BOX 150, FUNO HOUSE, I800 CONNAUGHT ROAD
`HONG KONG, HONG KONG
`
`LI & FUNG (TRADING) LIMITED HONG KONG CORP.
`LIFUNG HOUSE, 2 CAMERON ROAD
`KOWLOON, HONO KONG
`
`0453/0565
`Ll & FUNG LIMITED
`LI & I-‘UNG (TRADING) LIMITED, LIFUNG HOUSE, 2, CAMERON ROAD, KOWLOON,
`I-IKX
`Nov 7, 1983
`Nov 17, I983
`Assigns the entire interest and goodwill
`
`Exhibit B
`
`

`
`Rcelllhne
`
`Aduoro)
`AI|II~(I)
`
`Correspondent
`
`mu Sgndmclt
`mu Roconlul
`Brief
`
`0902/0559
`Ll&.FUNG(TIlADING)LlMl'l'BDHKX,CORP.
`L‘: & rune (nu) LIMITED vex, com», no. Box 145 now TOWN TORTOLA,
`nnmsn vmcm xsunos
`'
`SPITZBR & PBLDMAN P.C., M. JAMES SPITZBR, ESQ. 405 PARK AVENUE, NEW
`YORK. NY 10022
`Sap 2, 1992
`Sep 10, 1992
`Assigns the entire inmcst and goodwill
`
`Exhibit B
`
`

`
`
`
`Nlational Center for Injury Preventionand
`
`More,.l_n19.Lv.1E.a_cJ
`§h§§t'S
`
`Fireworks-Related Injuries
`
`How extensive is the problem?
`
`0 In 2003, four persons died and an estimated 9,300
`were treated in emergency departments for fireworks-
`related injuries in the United States (Greene 2004).
`
`Eiue.w.QLl_<_s__§.atety...Mg.n1.h.
`
`Featured Observances
`
`>
`
`o An estimated 5% of fireworks-related injuries treated in emergency departments
`
`required hospitalization (Greene 2004).
`
`Who is most likely to be injured?
`
`a About 45% of persons injured from fireworks are children ages 14 years and
`younger (Greene 2004).
`o Males represent 72% of all injuries (Greene 2004).
`o Children ages 5 to 9 years have the highest injury rate for fireworks-related injuries
`(Greene 2004).
`o Persons who are actively participating in fireworks-related activities are more
`frequently injured, and sustain more severe injuries, than bystanders (Smith 1996).
`
`
`
`When and where do these injuries happen?
`
`0 Injuries occur on and around holidays associated with fireworks celebrations, especially
`July 4”‘ and New Year's Eve.
`o Most of these injuries occur in homes. Other common locations include recreational
`settings, streets or highways, and parking lots or occupational settings (U.S. CPSC
`1993).
`
`What kinds of injuries occur?
`
`o Fireworks-related injuries most frequently involve hands and fingers (26%), eyes
`(21%), and the head and face (18%). More than half of the injuries are burns (63%);
`contusions and lacerations were the second most frequent injuries (18%) (Greene
`2002).
`o Fireworks also can also cause life-threatening residential fires (NFPA 2002).
`
`What types of fireworks are associated with the most injuries?
`
`o Illegal large firecrackers represent 2% of all firecracker injuries (Greene 2002).
`o Firecrackers (24%), rockets (18%), and sparklers (11%) accounted for most of the
`injuries seen in emergency de
`ent during 2003 (Greene 2004).
`Eaxwblt 5
`
`

`
`o Sparklers were associated with the most injuries for children under five (Greene 2004).
`o For children ages five to 14 years and people ages 15 to 24 years, firecrackers,
`rockets, and other devices (including sparklers) were the source of most injuries
`(Greene 2004).
`
`How and why do these injuries occur?
`
`0 Availability: In spite of federal regulations and varying state prohibitions, "class C"
`and "class B" fireworks are often accessible by the public. It is not uncommon to find
`fireworks distributors near state borders, where residents of states with strict fireworks
`regulations can take advantage of more lenient state laws.
`
`o Fireworks type: Among "class C" fireworks, which are sold legally in some states,
`bottle rockets can fly into one’s face and cause eye injuries; sparklers can ignite one’s
`clothing (sparklers burn at more than 1,000°F); and firecrackers can injure one’s hands
`or face if they explode at close range (U.S. CPSC 1996).
`
`o Being too close: Injuries may result from being too close to fireworks when they
`explode; for example, when someone bends over to look more closely at a firework
`that has been ignited, or when a misguided bottle rocket hits a nearby person (U.S.
`CPSC 1996).
`
`0 Unsupervised use: One study estimates that children are 11 times more likely to be
`injured by fireworks if they are unsupervised (U.S. CPSC 1996).
`
`0 Lack of physical coordination: Younger children often lack the physical coordination
`to handle fireworks safely.
`
`0 Curiosity: Children are often excited and curious around fireworks, which can increase
`their chances of being injured (e.g., when they re-examine a firecracker dud that
`initially fails to ignite) (U.S. CPSC 1996).
`o Experimentation: Homemade fireworks (e.g., ones made of the powder from several
`firecrackers) can lead to dangerous explosions (U.S. CPSC 1996).
`
`How much do these injuries cost each year?
`
`0 In addition to medical costs directly and indirectly attributable to fireworks injuries,
`U.S. fire departments reported approximately 24,200 fireworks-related fires in 1999
`that were estimated to have cost $17.2 million in direct property damage (NFPA 2002).
`
`What effect do laws have on fireworks injuries?
`
`0 Studies suggest that state laws regulating the sale and use of fireworks affect the
`number of injuries incurred. For example, in one state, the number of injuries seen in
`emergency departments more than doubled following the legalization of fireworks
`(McFarland 1984).
`
`0 Under the Federal Hazardous Substances Act, the federal government prohibits the sale
`of the most dangerous types of fireworks to consumers. These banned fireworks
`include large reloadable shells, cherry bombs, aerial bombs, M-80 salutes, and larger
`firecrackers that contain more than two grains of powder. Under this same Act, mail-
`order kits to build these fireworks are also prohibited (Banned Hazardous Substances
`
`2°°1)-
`
`Exhibit C
`
`

`
`What is the safest way to prevent fireworks injuries?
`
`o The safest way to prevent fireworks-related injuries is to leave fireworks displays to
`trained Professionals. See safetv tips from the
`Commission.
`
`References
`
`o U.S. Consumer Product Safety Commission. Federal Hazardous Substances Act. [cited
`25 June 2003]. Bethesda (MD): The Commission. Available at URL:
`http : 1[www.cgsc.gov[businfo[fl1sa.html
`
`o Greene MA, Race PM. 2003 Fireworks Annual Report: Fireworks-Related Deaths,
`Emergency Department Treated Injuries, and Enforcement Activities During 2003.
`Washington (DC): U.S. Consumer Product Safety Commission; 2004 [cited 1 July
`2004]. Available at URL: http:[Lwww.cpsc.gov/LIBRARY/2001fwreportpdf
`
`o McFarland LV, Harris JR, Kobayashi JM, Dicker RC. Risk factors for fireworks-related
`injury in Washington State. JAMA 1984;251:3251-3254.
`
`a National Fire Protection Association. Fireworks-related im'_uries, deaths, and fires.
`
`Quincy (MA): NFPA; 2004.
`
`o Smith GA, Knapp JF, Barnett, TM, Shields BJ. The rockets’ red glare, the bombs
`bursting in air: fireworks-related injuries to children. Pediatrics 1996; 98(1):1-9.
`
`o U.S. Consumer Product Safety Commission. CPSC stops hazardous products at the
`clocks: Preventing fireworks injuries and deaths. [cited 5 May 1996] Arlington (VA):
`1996. Available at URL: www.cpsc.gov[cpscpulgLpubs/success/firework.html
`
`0 U.S. Consumer Product Safety Commission. Safety commission holds seventh annual
`fireworks safety news conference. [cited 28 June 1993]. Arlington (VA): The
`Commission;1993.
`
`
`
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`Exhibit C
`
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