WILLIAM G. SYKES
`ATTORNEY AND COUNSELOR AT LAW
`4605 Pembroke Lake Circle, Suite 103
`Virginia Beach, Virginia 23455
`Office: (757) 490-8586
`Fax:
`(757) 363-3405
`
`William@wi11iamsykeslaw.com
`
`October 31, 2005
`
`Cheryl Butler
`Trademark Trial and Appeal Board
`P. O, Box 1451
`Alexandria, VA 22313-1451
`
`Re: Mattel, Inc. v. Patricia G. Briden
`Opposition No. 91—160087
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`Dear Ms. Butler:
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`Please file the enclosed Motion for Summary Judgment with this case.
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`Please give me a call if you have any questions or if you need additional
`information. Thank you!
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`Sincerely,
`
`6%I||ia§ G ykes
`
`cc:
`
`Jill M. Pietrini, Esquire
`Patricia G. Briden
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`llllllllllll|||ll|||||ll|l|lllllllllllllllllllllll
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`1 1-02-2005
`US. Patent & TM01‘c/TM Mail ficpt Dt. #64
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`Environmental o Patents 0 Personal Injury 9 Product Liability 0 Toxic Mold Litigation
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`

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`
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`Docket No. 12838-163
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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` In re Matter of Application No.
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`78/223,428 for the mark: SOCK-UM
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`Mattel, |nc.,
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`Opposition No. 91-16008?
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`0F’P°$e'»
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`APPLlCANT’S
`MOTION OF
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`
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`Vs.
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`SUMMARY JUDGMENT
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`Patricia G. Briden,
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`Applicant.
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`Pursuant to Federal Civil Procedure Rules 56 and the Trademark Trial and
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`Appeal Board (“TTAB”), Applicant, Patricia G. Briden ("Briden”), hereby moves the
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`Board for Summary Judgment against Opposer, Mattel,
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`lnc.,(“Matte|”) on the
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`following grounds:
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`1.
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`Opposer, Mattel, has submitted all of their evidence to the Applicant,
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`Briden. There is no evidence in this case to show that anyone would be confused to
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`believe that Briden’s Mark, SOCK—UM,
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`is confusingly similar to Mattel’s Mark,
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`ROCK’EM SOCiK’EM ROBOTS. Mattel has not proved Briden’s application would
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`cause a likelihood of confusion, mistake, or deception as to the source or origin of
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`Mattel’s goods and Briden’s goods.
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`2.
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`Mattel has not submitted any evidence to show that an average
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`purchaser will have the likelihood of confusion as to the source or origin of Mattel’s
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`l
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`

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`goods and Briden’s goods.
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`The test of likelihood of confusion is not whether the
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`marks can be distinguished when subjected to a side-by—side comparison, but
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`whether the marks are sufficiently similar that there is a likelihood of confusion as to
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`the source of the goods or services. When considering the similarity of the marks,
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`"[a]Il
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`relevant
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`facts pertaining to the appearance and connotation must be
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`considered.” Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894,
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`1897 (Fed. Cir. 2000).
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`In evaluating the similarities between marks, the emphasis
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`must be on the recollection of the average purchaser who normally retains a general,
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`rather than specific, impression of trademarks. Sealed Air Corp. v. Scott Paper Co.,
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`190 USPQ 106, 108 (TTAB 1975).
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`3.
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`Mattel has not submitted any evidence to prove that the public will be
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`confused as to whether the goods belong to Mattel or Briden. The goods or services
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`do not have to be identical or even competitive in order to determine that there is a
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`likelihood of confusion. The inquiry is whether the goods are related, not identical.
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`The issue is not whether the goods will be confused with each other, but rather
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`whether the public will be confused about their source. See Safety—Kleen Corp. v.
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`Dresser Indus., Inc., 518 F.2d 1399, 1404, 186 USPQ 476, 480 (C.C.P.A. 1975).
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`It
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`is sufficient that the goods or services of the applicant and the registrant are so
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`related that the circumstances surrounding their marketing are such that they are
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`likely to be encountered by the same persons under circumstances that would give
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`rise to the mistaken belief that they originate from the same source. See, e.g., On-
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`line Careline Inc. v. America Online lnc., 229 F .3d 1080, 56 USPQ2d 1471 (Fed. Cir.
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`2000) (ON-LINIE TODAY for Internet connection services held likely to be confused
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`with ONLINE TODAY for Internet content); In re Man‘in’s Famous Pastry Shoppe,
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`lnc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (MARTIN'S for wheat bran
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`and honey bread held likely to be confused with MARTlN’S for cheese);
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`In re
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`Corning Glass Works, 229 USPQ 65 (TTAB 1985) (CONFIRM for a buffered solution
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`equilibrated to yield predetermined dissolved gas values in a blood gas analyzer held
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`likely to be confused with CONFIRMCELLS for diagnostic blood reagents for
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`laboratory use); In re Jeep Corp., 222 USPQ 333 (TTAB 1984) (LAREDO for land
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`vehicles and structural parts therefor held likely to be confused with LAREDO for
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`2
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`

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`pneumatic tires).
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`4.
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`The burden in this case is for Mattel to prove that the consumer will
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`erroneously believe that Briden’s goods are produced by or associated with Mattel.
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`Mattel has not met this burden of proof.
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`5.
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`Applicant further alleges that there is no longer any material fact in this
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`action genuinely in dispute.
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`Wl-IEREFORE, Applicant, Patricia G. Briden, prays that she have summary
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`judgment against Opposer, Mattel, Inc., and her costs expended in this action.
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`Dated:
`October 31, 2005
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`Respectfully submitted,
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`
`
`squire
`ke
`William G.
`ation No. 50704
`USPTO Regi
`3669 Seagull Bluff Drive
`Virginia Beach, VA 23455-1721
`
`Attorney for Patricia G. Briden
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`CERTIFICATE OF MAILING
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`I hereby certify that this Motion for Summary Judgment is being deposited
`with the United States Postal Service, postage prepaid,
`first class mail,
`in an
`envelope addressed to Commissioner
`for Trademarks, Attn: Cheryl Butler,
`Trademark Trial and Appeal Board, Box 1451, Alexander, Virginia 22313-1451 and
`Jill M. Pietrini, Esquire at MANATT, PHELPS & PHILLIPS, LLP, 11355 W. Olympic
`Blvd., Los Angeles, California 90064
`
`this 31st d