The opinion of the court was delivered by: Norma L. Shapiro, S.J.
Plaintiff, The Ritz Hotel, Ltd. ("RHL"), filed for declaratory relief against Shen Manufacturing Co., Inc. ("Shen") for trademark infringement under the Lanham Trade-Mark Act ("Lanham Act"). Shen filed counterclaims against RHL for trademark infringement and fraud under the Lanham Act together with supplemental state-law claims for fraud and trademark violations. Shen filed a Motion for Partial Summary Judgment (paper no. 46) on Count I of its amended counterclaim, under § 14 of the Lanham Act, 15 U.S.C. § 1064, for cancellation of nineteen (19) of RHL's United States trademark registrations as either abandoned or procured through fraud. By Memorandum and Order of March 17, 2009 (paper no.79, "Memorandum"), Shen's Motion for Partial Summary Judgment on Count I was denied. Pending is Shen's Motion for Reconsideration; it will be granted in part and denied in part.
Count I of Shen's amended counterclaim, under § 14 of the Lanham Trademark Act ("Lanham Act"), 15 U.S.C. § 1064,*fn1 is for cancellation of nineteen (19) United States trademark registrations owned by RHL as either abandoned or fraudulently procured. Inter alia, Shen seeks to have RHL's registration nos. 2,669,712 (RITZ ESCOFFIER for specialty foods) ("the '712 mark"), 1,980,522 (RITZ for cutlery) ("the '522 mark"), and 2,728,529 (RITZ PARIS for fabrics) ("the '529 mark") cancelled for fraudulent procurement, and registration nos. 2,706,448 (RITZ PARIS for games and toys) ("the '448 mark"), 2,726,595 (RITZ PARIS for clocks and watches) ("the '595 mark"), 2,790,268 (RITZ PARIS for clothing) ("the '268 mark"), 2,788,043 (RITZ PARIS for personal care products) ("the '043 mark"), 2,712,917 (RITZ PARIS for books) ("the '917 mark"), and 2,723,442 (RITZ PARIS for candles) ("the '442 mark") cancelled as abandoned. Shen's motion for summary judgment on its amended counterclaim to have the above-listed marks cancelled was denied by Order of March 17, 2009. Shen filed a timely Motion for Reconsideration..
II. MOTION FOR RECONSIDERATION
Reconsideration serves to correct manifest errors of law or fact. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3rd Cir. 1985). A court should grant a motion for reconsideration only if there is: 1) newly available evidence; 2) an intervening change in controlling law; or 3) a need to correct a clear error of fact or to prevent manifest injustice. Haymond v. Lundy, 205 F. Supp. 2d 390, 395 (E.D. Pa. 2002). "Motions for reconsideration are not to be used to reargue or relitigate matters already decided." Id.
Shen asserts six errors by the court:
1) the court should not have denied its motion for summary judgment on its claim to cancel the '712 mark as fraudulently procured;
2) the court erred when it stated that RHL submitted an (allegedly) false affidavit to maintain the '712 registration, and not as part of the application for the registration itself;
3) the court should not have denied its motion for summary judgment on its claim to cancel the '522 mark as fraudulently procured;
4) the court should not have denied as moot its motion for summary judgment on its claim to have the '529 registration cancelled as fraudulently procured;
5) the court should not have denied its motion for summary judgment to have the '448, '595, and '268 marks cancelled as abandoned since RHL failed to rebut the prima facie presumption of abandonment after three years of demonstrated non-use; and
6) the court should not have denied its motion for summary judgment to have the '043, '917, and '442 marks cancelled as abandoned, because ...