Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 CORPORATE FITNESS PROGRAMS, INC.
WEIDER HEALTH AND FITNESS, INC., ASSIGNEE OF BEN WEIDER
April 13, 1988
Opposition 67,868 to application Serial No. 292,633 filed January 12, 1981.
Seed & Berry for Corporate Fitness Programs, Inc.
Blakely, Sokoloff, Taylor & Zafman for Weider Health and Fitness, Inc.
Before Rice, Rooney and Cissel
Opinion by Rice
The record in this case shows that the opposition was sustained by the Board in a decision dated April 10, 1987, which was published at 2 USPQ2d 1682. Applicant appealed the decision of the Board by filing, pursuant to 15 U.S.C. 1071(b), a civil action (No. C87-798) in the United States District Court for the Western District of Washington.
Thereafter, the parties, having reached a settlement with respect to the civil action, entered into a consent judgment which was approved by the District Court on January 22, 1988. The consent judgment reads as follows:
WHEREAS, the parties have reached a settlement with respect to the above-captioned action and each of them have consented to this Judgment, as evidenced by the signatures of their respective counsel set forth below, and good cause appearing therefor,
IT IS HEREBY ORDERED AND DECREED:
1. This Court has jurisdiction over the subject matter and the parties to this action.
2. Plaintiff Weider Health and Fitness is entitled to United States registration on the Principal Register of the mark 'SHAPE' for a magazine relating to physical fitness and exercise as sought by Weider Health and Fitness in its United States Trademark Application Serial Number 292,633.
3. Pursuant to 15 U.S.C. 1071(b), the Commissioner of Patents and Trademarks is directed to register Plaintiff Weider Health and Fitness' mark 'SHAPE' for a magazine relating to physical fitness and exercise on the Principal Register as sought by Weider Health and Fitness in its United States Trademark Application Serial Number 292,633.
4. In all other respects the above-captioned action, including all counterclaims, is dismissed with prejudice.
5. There is no award of damages and each party shall bear its own costs and attorney's fees.
6. This Judgment is Final.
In view thereof, the Board's decision of April 10, 1987, wherein the opposition was sustained, is hereby set aside, the opposition is dismissed, and applicant's application Serial No. 292,633 will be forwarded to issue in due course.
J. E. Rice
L. E. Rooney
R. F. Cissel
Members, Trademark Trial and Appeal Board