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`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Application Serial No. 76/201,608
`
`Published in the Official Gazette on January 29, 2002
`
`A
`
`|||||l||||||||||||||||||||||||||||H||||||||||||||
`
`05-28-2002
`u.s. Patent 5: more/TM Main new at #71
`
`EASTLAND FOOD CORP.
`Opposer,
`v.
`TANG’S FAMILY CORP.
`Applicant.
`
`)
`)
`)
`)
`)
`
`Opposition No. 125312
`
`MM)
`
`OPPOSITION OF APPLICANT TANG’S FAMILY CORPORATION
`
`TO OPPOSER EASTLAND FOOD CORPORATION’S
`
`MOTION TO STRIKE AFFIRMATIVE DEFENSES
`
`COMES NOW Applicant Tang’s Family Corporation (“Applicant”), by and through
`
`undersigned counsel, pursuant to 37 C.F.R. 2.127, and opposes the motion to strike Applicant’s
`
`affirmative defenses filed in this matter by Eastland Food Corporation (“Opposer”), as follows:
`
`A.
`
`Motions To Strike Affirmative Defenses Are Disfavored.
`
`ARGUMENT
`
`“[M]otions to strike are not favored, and matter will not be stricken unless such matter
`
`clearly has no bearing upon the issues in the case.” The Ohio State Univ. v. Ohio Univ., 1999 WL
`
`517202 *3 (T.T.A.B. Mar. 18, 1999); Harjo v. Pro Football, Inc., 30 U.S.P.Q.2d 1828; 1994 WL
`
`2622489, *2 (T.T.A.B. 1994); Harsco Corp. v. Electrical Sciences, Inc., 9 U.S.P.Q.2d 1570
`
`(T.T.A.B. 1988); Lean Shafler Gonick Advertising, Inc. v. William G. Pendill Marketing Co.,
`
`177 U.S.P.Q. 401 (T.T.A.B. 1973). “The primary purpose of the pleadings, under the Federal
`
`

`
`Rules of Civil Procedure, is to give fair notice of the claims or defenses asserted.” The Ohio
`
`State Univ., 1999 WL 517202 at *3; TBMP §§ 312.03 & 318.02(b); McDonnell Douglas Corp.
`
`v. National Data Corp., 228 U.S.P.Q. 45 (T.T.A.B. 1985). “Thus, the Board, in its discretion,
`
`may decline to strike even objectionable pleadings where their inclusion will not prejudice the
`
`adverse party, but rather will provide fuller notice of the basis for a claim or defense.” The Ohio
`
`State Univ., 1999 WL 517202 at *3.
`
`As shown herein, Opposer’s motion to strike should be denied.
`
`B.
`
`Applicant Properly Alleges The Affirmative Defense That Opposer Fails To State
`A Claim Upon Which Relief May Be Granted.
`
`Opposer asserts that “[p]ursuant to Rule l2(i) of the F.R.C.P., Affirrnative Defense No. 1
`
`should be stricken as being an insufficient defense.” Opposer is wrong. Rule 12(h)(2) provides
`
`expressly that “[21] defense of failure to state a claim upon which relief can be granted .
`
`.
`
`. may be
`
`made Q fly pleading permitted 91 ordered under Rule 71a), or by motion for judgment on the
`
`pleadings, or at the trial on the merits.” Fed.R.Civ.P. 12(h)(2) (emphasis added)‘ Thus, the
`
`affirmative defense that a plaintiff fails to state a claim upon which relief can be granted is not
`
`only a proper affirmative defense, but also one that can be raised in an answer (as Applicant has
`
`done here) or at any time thereafter through various means. Furthermore, as Professor McCarthy
`
`recognizes in his treatise, a defendant may assert as its first affirmative defense that “the
`
`complaint fails to state a claim upon which relief can be granted.” 5 J. Thomas McCarthy on
`
`Trademarks and Unfair Competition § 322205 (4”‘ Ed. 2000). Accordingly, Opposer’s motion to
`
`strike Applicant’s First Affirmative Defense is not well taken and should be denied.
`
`‘Rule 7(a) of the Federal Rules of Civil Procedure provides that “[t]here shall be a complaint and an answer .
`(emphasis added).
`
`.
`
`.
`
`.”
`
`

`
`‘l
`
`C.
`
`Applicant Properly Alleges The Affirmative Defenses Of Inequitable Conduct And
`Unclean Hands.
`
`Opposer asserts that the affirmative defenses of inequitable conduct and unclean hands
`
`are “term[s] of art interchangeable with ‘fraud”’ (Opposer’s Motion at 2), and that Rule 9(b) of
`
`the Federal Rules of Civil Procedure requires particular factual allegations to support such
`
`defenses.2 As such, Opposer asserts that Applicant has not provided sufficient facts placing it on
`
`notice of the validity of those defenses. Opposer does not, however, assert that as a matter of
`
`law Applicant cannot allege such affirmative defenses.
`
`As discussed above, “motions to strike are not favored, and a matter will not be stricken
`
`unless such matter clearly has no bearing upon the issues in the case.” Ohio Univ., 1999 WL
`
`517202 at *3 (emphasis added).
`
`In conjunction with the instant opposition, Applicant has filed a
`
`motion for leave to amend its answer to allege facts in support of its affirrnative defenses that
`
`Opposer has engaged in inequitable conduct before the PTO, and comes before this Board with
`
`unclean hands. Attached to Applicant’s motion for leave to amend is an Amended Answer.
`
`Accordingly, the Board has the discretion to refrain from ruling on Opposer’s motion to strike, or
`
`in the alternative deny such motion as being moot.
`
`Zln support, Opposer cites Kingsdown Med. Consultants, Ltd. v. E.R. Squibb & Sons, 863 F.2d 867 (Fed. Cir. 1988),
`a case involving patent infringement, and J.P. Stevens & Co., Inc. v. Badische Corp., 747 F.2d 1553 (Fed. Cir.
`1984), a case that was superseded by rule and recognized as overruled and abrogated by numerous courts.
`
`

`
`E)‘
`
`Dated: May 28, 2002
`
`Respectfially submitted,
`
`
`
`Steven J. Wadyka, Jr.
`David A. Kessler
`
`GREENBERG TRAURIG, LLP
`
`1750 Tysons Boulevard
`Suite 1200
`
`McLean, VA 22102
`
`Tel: (703) 749-1300
`Fax: (703) 749-1301
`
`Counsel for Applicant
`Tang’s Family Corporation
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 28, 2002, a copy of the foregoing was served by First Class
`Mail, postage prepaid, on the following:
`
`Alex Chartove, Esq.
`Andrew N. Spivak, Esq.
`Morrison & Foerster, LLP
`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-1888
`
`Attorneys for Opposer
`
`EastlandFoodCorporation
`
`STEVEN J. WADYKA, JR.
`
` \
`
`

`
`CERTIFICATE OF EXPRESS MAILING UNDER 37 C.F.R. § 1.10
`
`I hereby certify that this document (and any referred to as being attached or enclosed) is being deposited
`with the United States Postal Service as “Express Mail Post Office to Addressee” service, mailing label
`No. ET 812 929 421 US on May 28, 2002, and addressed to the Assistant Commissioner for Trademarks,
`2900 Crystal Drive, Arlington,
`
`22202-3
`
`
`
`Joseph R. Keselyak,
`
`aw Cl k
`
`

`
`
`
`K‘
`
`?Inf‘
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`I
`
`fA 1'
`‘
`s
`'lN.76/201,608
`h
`pp ‘°a‘‘°“ 6“ °
`“‘ ‘°’ ‘“““‘°‘ °
`Published in the Official Gazette on January 29, 2002
`
`/‘“‘~-—~~~~——_-\,
`Immumumummmmmmummum
`
`05-28-2002
`
`u.s. Patent 5. momm Mai. Hep, B,‘ #71
`
`EASTLAND FOOD CORP.
`Opposer,
`v.
`TANG’S FAMILY CORP.
`Applicant.
`
`3
`5
`3
`3
`3
`
`Opposition No. 125312
`
`:.___Z_________:_)
`
`MOTION FOR LEAVE TO FILE AMENDED ANSWER
`
`COMES NOW Applicant Tang’s Family Corporation (“Applicant”), by and through
`
`undersigned counsel, pursuant to 37 C.F.R. 2.127 and Rule l5(a) of the Federal Rules of Civil
`
`Procedure, and moves for leave to amend its Answer. The instant motion is supported by the
`
`attached memorandum of points and authorities. Applicant has also attached hereto the proposed
`
`Amended Answer.
`
`Dated: May 28, 2002
`
`Respectfully submitted,
`
`Steven J. Wadyka, Jr.
`David A. Kessler
`
`GREENBERG TRAURIG, LLP
`1750 Tysons Boulevard
`Suite 1200
`
`McLean, VA 22102
`
`Tel: (703) 749-1300
`Fax: (703) 749-1301
`
`Counsel for Applicant
`Tang’s Family Corporation
`
`

`
`
`
`7
`F
`
`.gSm
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 28, 2002, a copy of the foregoing was served by First Class
`Mail, postage prepaid, on the following:
`
`Alex Chartove, Esq.
`Andrew N. Spivak, Esq.
`Morrison & Foerster, LLP
`2000 Pennsylvania Avenue, N.W.
`Washington, DC. 20006-1888
`
`Attorneys for Opposer
`
`Eastland Food Corporation
`
`STEVEN J. WADYKA, J
`
`

`
`
`
`1’
`
`-v
`
`CERTIFICATE OF EXPRESS MAILING UNDER 37 C.F.R. § 1.10
`
`I hereby certify that this document (and any referred to as being attached or enclosed) is being deposited
`with the United States Postal Service as “Express Mail Post Office to Addressee” service, mailing label
`No. ET 812 929 421 US on May 28, 2002, and addressed to the Assistant Commissioner for Trademarks,
`2900 Crystal Drive, Arlington, VA 22202-3513.
`
`'
`
`Joseph R. Keselyak, L
`Cle
`
`
`

`
`
`
`AI
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Application Serial No. 76/201,608
`Published in the Official Game on January 29’ 2002
`
`EASTLAND FOOD CORP.
`
`Opposer,
`V.
`TANG’S FAMILY CORP.
`Applicant.
`
`)
`)
`
`i
`i
`%
`g
`
`_._ ___,___
`__
`HHIII
`I
`mmlmnummmuumummum
`
`O F
`
`05-28-2002
`US. Patent & TMOfclTM Mall Hcpt Dr. #71
`
`Opposition No. 125312
`
`AMENDED ANSWER OF APPLICANT TANG’S FAMILY CORPORATION
`
`COMES NOW Applicant Tang’s Family Corporation (“Applicant”), by and through
`
`undersigned counsel, pursuant to 37 C.F.R. 2.106, and hereby answers the Notice of Opposition
`
`filed in this matter by Eastland Food Corporation (“Opposer”), as follows:
`
`1.
`
`Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegations contained in paragraph 1 of the Notice of Opposition, and on
`
`that basis denies such allegations.
`
`2.
`
`Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegations contained in paragraph 2 of the Notice of Opposition, and on
`
`that basis denies such allegations.
`
`3.
`
`Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegations contained in paragraph 3 of the Notice of Opposition, and on
`
`that basis denies such allegations.
`
`

`
`4.
`
`Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth or falsity of the allegations contained in paragraph 4 of the Notice of Opposition, and on
`
`that basis denies such allegations.
`
`5.
`
`Applicant admits the allegations contained in paragraph 5 of the Notice of
`
`Opposition.
`
`6.
`
`Applicant admits that the term “CON VOI 1902” that appears in Applicant’s mark
`
`is Vietnamese for “Red Elephant,” and that this translation is of record in Application Serial No.
`
`76/201,608. Applicant otherwise denies the allegations contained in paragraph 6 of the Notice of
`
`Opposition.
`
`7.
`
`Applicant admits the allegations contained in the first sentence of paragraph 7 of
`
`the Notice of Opposition. Applicant is without knowledge or information sufficient to form a
`
`belief as to the truth or falsity of the allegations contained in the second sentence of paragraph 7
`
`of the Notice of Opposition, and on that basis denies such allegations.
`
`8.
`
`Applicant denies the allegations contained in paragraph 8 of the Notice of
`
`Opposition.
`
`9.
`
`Applicant denies the allegations contained in paragraph 9 of the Notice of
`
`Opposition.
`
`10.
`
`Applicant denies the allegations contained in paragraph 10 of the Notice of
`
`Opposition.
`
`11.
`
`Applicant denies the allegations contained in paragraph 11 of the Notice of
`
`Opposition.
`
`12.
`
`Applicant denies the allegations contained in paragraph 12 of the Notice of
`
`Opposition.
`
`

`
`-\
`
`13.
`
`Applicant denies the allegations contained in paragraph 13 of the Notice of
`
`Opposition.
`
`Reguest for Relief
`
`The remaining allegations are prayers for relief that do not require an admission or denial
`
`by Applicant.
`
`To the extent a response is required,
`
`the allegations are denied. Unless
`
`specifically admitted herein, all allegations are denied. Applicant further denies that Opposer is
`
`entitled to any relief, including the relief requested in the Notice of Opposition.
`
`AFFIRMATIVE DEFENSES
`
`First Affirmative Defense
`
`Opposer fails to state a claim upon which relief can be granted.
`
`Second Affirmative Defense
`
`Opposer’s alleged “Red Elephant” trademark is not inherently distinctive.
`
`Third Affirmative Defense
`
`Opposer’s alleged “Red Elephant” trademark has not acquired secondary meaning.
`
`Fourth Affirmative Defense
`
`There is no likelihood of confusion between Opposer’s and Applicant’s trademarks.
`
`Fifth Affirmative Defense
`
`Applicant’s trademark does not constitute a false designation of origin.
`
`Sixth Affirmative Defense
`
`Opposer’s claims are barred, in whole or in part, by Opposer’s inequitable conduct.
`
`Upon information and belief, Opposer has falsely represented to the Board in this proceeding
`
`that it has used its alleged “Red Elephant” mark continuously in the United States since at least
`
`as early as March 6, 1982. In addition, upon information and belief, Opposer falsely represented
`
`

`
`to the Patent and Trademark Office (PTO) in Application Serial No. 76/306,089 that: (a) it has
`
`used its mark continuously in the United States on the identified goods since at least as early as
`
`March 6, 1982; and (b) no other person, firm, corporation, or association had the right to use its
`
`mark or any near resemblance thereto as to be likely, when used on or in connection with the
`
`goods/services of such other person, to cause confusion, or to cause mistake, or to deceive.
`
`Seventh Affirmative Defense
`
`Opposer’s claims are barred, in whole or in part, by the doctrine of acquiescence.
`
`Eighth Affirmative Defense
`
`Opposer’s claims are barred, in whole or in part, by the doctrine of laches.
`
`Ninth Affirmative Defense
`
`Opposer’s claims are barred by the doctrine of unclean hands. Upon information and
`
`belief, Opposer has falsely represented to the Board in this proceeding that it has used its alleged
`
`“Red Elephant” mark continuously in the United States since at least as early as March 6, 1982.
`
`In addition, upon information and belief, Opposer falsely represented to the Patent and
`
`Trademark Office (PTO) in Application Serial No. 76/306,089 that: (a) it has used its mark
`
`continuously in the United States on the identified goods since at least as early as March 6, 1982;
`
`and (b) no other person, firm, corporation, or association had the right to use its mark or any near
`
`resemblance thereto as to be likely, when used on or in connection with the goods/services of
`
`such other person, to cause confusion, or to cause mistake, or to deceive.
`
`Tenth Affirmative Defense
`
`Opposer’s claims are barred by the doctrine of estoppel.
`
`

`
`WHEREFORE, having fully answered, Applicant Tang’s Family Corporation prays for
`
`judgment against Eastland Food Corporation, dismissing its Notice of Opposition with prejudice,
`
`and awarding Applicant such other and further relief as the Board deems just and equitable.
`
`Dated: May 28, 2002
`
`Respectfully submitted,
`
`Steven J. Wadyka, Jr.
`David A. Kessler
`
`GREENBERG TRAURIG, LLP
`
`1750 Tysons Boulevard
`Suite 1200
`
`McLean, VA 22102
`
`Tel: (703) 749-1300
`Fax: (703) 749-1301
`
`Counsel for Applicant
`Tang’s Family Corporation
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 28, 2002, a copy of the foregoing was served by First Class
`Mail, postage prepaid, on the following:
`
`Alex Chartove, Esq.
`Andrew N. Spivak, Esq.
`Morrison & Foerster, LLP
`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-1888
`
`Attorneys for Opposer
`
`Eastland Food Corporation STEVEN J. WADYKA, JR.
`
`

`
`
`
`CERTIFICATE OF EXPRESS MAILING UNDER 37 C.F.R. § 1.10
`
`I hereby certify that this document (and any referred to as being attached or enclosed) is being deposited
`with the United States Postal Service as “Express Mail Post Office to Addressee” service, mailing label
`No. ET 812 929 421 US on May 28, 2002, and addressed to the Assistant Commissioner for Trademarks,
`2900 Crystal Drive, Arlington, VA 22202-3513.
`
`
`
` Joseph R. Keselyak, La
`
`

`
`‘\
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Application Serial No. 76/201,608
`
`Published in the Official Gazette on January 29, 2002
`
`\§\/\&\_/%/\./Q/\/\./%
`
`Opposition No. 125312
`
`EASTLAND FOOD CORP.
`
`Opposer,
`
`V.
`
`TANG’S FAMILY CORP.
`
`Applicant.
` ?)
`
`MEMORANDUM OF LAW IN SUPPORT OF
`
`APPLICANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER
`
`COMES NOW Applicant Tang’s Family Corporation (“Applicant”), by and through
`
`undersigned counsel, pursuant to 37 C.F.R. 2.127 and Rule 15(a) of the Federal Rules of Civil
`
`Procedure, and submits this memorandum of law in support of its motion for leave to amend its
`
`Answer.
`
`ARGUMENT
`
`Rule l5(a) of the Federal Rules of Civil Procedure provides that “leave [to amend] shall
`97
`
`be freely given when justice so requires.
`
`Leave to amend an answer is particularly available
`
`where the opposing party, whether through a motion to strike affirrnative defenses or a motion
`
`for a more definite statement, has necessitated the requested amendment. See, e.g., The Ohio
`
`State Univ. v. Ohio Univ., 51 U.S.P.Q.2d 1289, 1999 WL 517202 (T.T.A.B. 1999); National
`
`Union Fire Ins. Co. of Pittsburg, P.A. v. Gilbert, 1987 WL 26787 (S.D.N.Y. Nov. 24, 1987)
`
`(denying motion to strike where defendant filed an amended answer).
`
`

`
`-I
`
`Al
`
`In the instant proceeding, the Board should grant Applicant leave to amend its answer to
`
`add the factual allegations in support of its affirmative defenses, as necessitated by Opposer’s
`
`motion to strike such affirmative defenses. The instant proceeding is at an extremely early stage,
`
`and neither party has undertaken any discovery. Accordingly, Opposer will suffer no prejudice if
`
`the Board grants Applicant leave to amend its Answer, and accepts its amended Answer for
`
`filing.
`
`CONCLUSION
`
`For the foregoing reasons, the Board should grant the instant motion and accept
`
`App1icant’s amended Answer for filing.
`
`Dated: May 28, 2002
`
`Respectfully submitted,
`
` Steven J. Wadyka, Jr.
`
`David A. Kessler
`
`GREENBERG TRAURIG, LLP
`
`1750 Tysons Boulevard
`Suite 1200
`
`McLean, VA 22102
`
`Tel: (703) 749-1300
`Fax: (703)749-1301
`
`Counsel for Applicant
`Tang’s Family Corporation
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 28, 2002, a copy of the foregoing was served by First Class
`Mail, postage prepaid, on the following:
`
`Alex Chartove, Esq.
`Andrew N. Spivak, Esq.
`Morrison & Foerster, LLP
`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-1888
`
`Attorneys for Opposer
`Eastland Food Corporation
`
`STEVEN J. WADYKA, JR.
`
`k
`
`

`
`CERTIFICATE OF EXPRESS MAILING UNDER 37 C.F.R. § 1.10
`
`I hereby certify that this document (and any referred to as being attached or enclosed) is being deposited
`with the United States Postal Service as “Express Mail Post Office to Addressee” service, mailing label
`No. ET 812 929 421 US on May 28, 2002, and addressed to the Assistant Commissioner for Trademarks,
`22202-3513.
`2900 Crystal Drive, Arlington
`
`
`
`
`
`Joseph R. Keselyak, Law Clerk
`
`

`
`
`
`...IIIIIIIII
`[i
`lllfllllll
`
`A
`
`777%
`
`bAay28,2002
`
`Attorney Docket No. 46533010100
`
`IllllllllllllllllllllllllllHlllllllllllllllllllll
`
`05-28-2002
`U.S. Pawn! & TMOfc/TM Mail Flcpt Dt. #71
`
`VIA EXPRESS MAIL
`
`BOX TTAB
`Assistant Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, Virginia 22202-3513
`
`Sir:
`
`Submitted herewith in regards to Eastland Food Corp.
`Opposition Number 125312, please find the following:
`
`if
`
`_.
`
`_
`
`C’;
`-if
`_.
`
`
`
`iiiiin
`I‘?
`v. Tang ’S Family Corp,
`
`1)
`
`2)
`3)
`4)
`
`Opposition of Applicant Tang’s Family Corporation to Opposer Eastland Food
`Corporation’s Motion to Strike Affirmative Defenses;
`Motion for Leave to File Amended Answer;
`Amended Answer of Applicant Tang’s Family Corporation; and
`Memorandum of Law in Support of Applicant’s Motion for Leave to File
`Amended Answer.
`
`Please direct all correspondence to Steven J. Wadyka, Jr., Esq., Greenberg Traurig, 1750
`Tysons Blvd., 12”‘ Floor, McLean, VA 22102.
`
`If any filing fees are required in connection with the filing of this document, please
`charge Deposit Account No. 50-0653.
`
`
`
`fully Submitted, R
`
`Steven J. Wadyka, Jr., Esq.
`David A. Kessler, Esq.
`Greenberg Trauri g, LLP
`1750 Tysons Blvd., 12"‘ Floor
`McLean, VA 22102
`
`(703) 749-1307
`
`cc: Ms. Jin-Ee Tang
`Pheng Theng Tan, Esq.
`
`CREENBERG TIIAUIIIC, LLP
`1750 TYSONS BoIJLI:v,\IIn SUITE [200 MCLEAN, VIRGINIA 22102
`703-749-1300 FAX 703-749-1301 www.gtteclIlaw.con1
`\Vll.MlN(:’l‘0N Los ANCELES
`MIAMI NEW YORK WASHINCTON,D.C. A'['I.AN'l‘A PHILADI-1Ll’l|lA MCLEAN CHICAGO BOSTON PIIoENIx
`S80 PAULO FORT LAUDERDALE BOCA RATON WEST PALM BEACH ORLANDO TAI.I..\IIAssI3I:
`
`
`
`DENVER

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