throbber
Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA119890
`ESTTA Tracking number:
`01/16/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91161044
`Defendant
`Rarick, John C.
`Rarick, John C.
`749 Portola Street Suite A
`SF Presidio, CA 94129
`
`Rarick, John C.
`PEAK HARVEST FOODS, LLC
`9079 Allegheny Road
`Corfu, NY 14036-9765
`UNITED STATES
`jr@peakharvestfoods.com
`Defendant's Notice of Reliance
`John Rarick
`jr@peakharvestfoods.com, lawjet@aol.com
`/41jcr44/
`01/16/2007
`AP Notice of Reliance.pdf ( 17 pages )(621600 bytes )
`APNR EX-A thru D.pdf ( 5 pages )(236562 bytes )
`APNR EX-E thru H.pdf ( 7 pages )(523324 bytes )
`APNR EX-I thru L.pdf ( 9 pages )(589624 bytes )
`APNR EX-M thru Q.pdf ( 6 pages )(486544 bytes )
`APNR EX-R thru U.pdf ( 7 pages )(733237 bytes )
`APNR EX-V thru Z.pdf ( 6 pages )(406044 bytes )
`APNR EX-AA thru FF.pdf ( 8 pages )(1844776 bytes )
`APNR EX-GG thru HH.pdf ( 3 pages )(41353 bytes )
`APNR_EX-II_01.pdf ( 1 page )(153172 bytes )
`APNR_EX-II_02.pdf ( 1 page )(149474 bytes )
`APNR Ex-JJ.pdf ( 2 pages )(27398 bytes )
`APNR EX-KK thru MM.pdf ( 8 pages )(747951 bytes )
`APNR EX-NN thru OO.pdf ( 15 pages )(1682326 bytes )
`APNREX-PP-SS.pdf ( 7 pages )(1005254 bytes )
`APNR EX-TT thru ZZ.pdf ( 8 pages )(1041005 bytes )
`APNR EX-AAA thru CCC.pdf ( 6 pages )(643040 bytes )
`APNR EX-DDD thru EEE.pdf ( 10 pages )(525117 bytes )
`APNR EX-FFF thru III.pdf ( 8 pages )(987944 bytes )
`APNR EX-JJJ thru NNN.pdf ( 9 pages )(1286844 bytes )
`
`

`
`
`
`IN THE UNITED STATES PA TENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No.78/287067 for the Mark “QUALITY YOU CAN
`CRUNCH” Published in the Official Gazette of June 1, 2004
`
`OPPOSITION NUMBER: 91161044
`SERIAL NUMBER: 78287067
`
`January 16, 2007
`
`)
`)
`
`) )
`
`)
`)
`)
`
`) )
`
`lN—N—OUT BURGERS,
`Opposer,
`
`-vs-
`
`John C. Rarick, Applicant with
`PEAK HARVEST FOODS, LLC by
`assignment
`Applicant.
`
`
`APPLlCANT’S FIRST NOTICE OF RELIANCE
`To the Trademark Trial and Appeal Board:
`
`Applicant submits the herein FIRST NOTICE OF RELIANCE in the above-
`
`captioned matter in accordance with 37 CFR §2.122 (e), further relying among
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`other trademark rules; §2.120 (5), §2.120 (j), §2.122 (d)(2), or the Board's inherent
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`authority on behalf of the Applicant John C. Rarick with Peak Harvest Foods, LLC
`
`by assignment.
`
`Applicant understands the voluminous nature of the record and the fact that
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`the examining attorney Andrew P. Baxley replaced Peter Cataldo. Therefore,
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`Applicant provides, the following notices of reliance and copies of pages in the
`
`record enumerated in APNR EX-A (copy of TTABVUE document listing) a.k.a.
`
`Opposition No. 91161044 with In-n-Out as “Opposer”/Plaintiff and John C.
`Rarick/Peak Harvest Foods, LLC as “Defendent” a.k.a Applicant to support
`its
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`Affirmative Defenses accepted by the Board (TTABVUE Doc No. 5).
`
`Whereby, Applicant requests that the TTAB take judicial notice of the items
`
`contained herein in the context of the cited trademark rules and decided and
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`affirmed court decisions with respective judicial references and notations herein
`
`recorded.
`
`PHF_NR_lOB
`
`page 1/17
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`OP 91161044
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`

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`
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`Record Item Reguiring No Action
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`The file of Application Serial No. 78/287,067—(a) Approved for publication
`
`on the Principal Register 2004-03-13 by the Examining Attorney.
`
`(b) Applicant’s
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`use dates back to at least April 13, 2003; and (c) Applicant’s Mark is unique to the
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`Applicant’s goods and goods that would be reasonably bridged.
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`Furthermore, Applicant’s Mark QUALITY YOU CAN CRUNCH has not
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`heretofore been seen or used in commerce with respect to other products of a
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`similar nature and when used in conjunction with Applicant’s existing registered
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`trademarks (PEAK l-IARVEST FOODS ® and CRUNCHY APPLE STlX ®); forms a
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`uniqueness that is unparalleled in the classes of Applicant’s goods and classes
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`easily bridged by Applicant.
`
`The Applicant’s Notices are made in conjunction with the Testimonies of Ed
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`Lilly and John C. Rarick, both properly noticed and accepted by the Board (AENI3
`
`_E_X_-A). H Once there is resolution to the present proceeding and given the
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`Applicant’s background and access to financial, marketing, and other resources
`
`requisite for an international specialty foods company, the Applicant will redirect its
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`resources (heretofore directed to the present opposition) to finalize packaging,
`
`expand production, sales, marketing, and R&D of specialty foods. Applicant can
`
`then create and execute investment—grade documents to attract the appropriate
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`capital and resources requisite for companies similar in nature to the potential of
`
`Applicant.
`
`Preamble and General Notations for the attached notices
`
`The documents are herein provided as a guide to the notices the Applicant
`
`would use in case of an oral hearing for which the Applicant may provide notice for
`
`the same.
`
`In any event, various courts of the United States have put forth various
`
`opinions and guidance for the prosecution of proceedings similar in nature to the
`
`PHF_NR_lOB
`
`page 2/17
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`OP 91161044
`
`

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`
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`present, upon which the Applicant relies in providing the documents contained
`
`herein and promulgated under its Board-Accepted Affirmative Defenses.
`
`Based upon Humble Oil & Refining Company v. Standard Oil Company,
`
`229 F. Supp 586, 141 USPQ 153 (S.D. Miss 1964), reversed 363 F.2d 945, 150
`
`USPQ 312 (5"‘ Cir. 1996), the Applicant provides supporting documentation that
`
`will corroborate its claims, but does not have the financial and other resources to
`
`provide exhaustive documentation that would merely state the same or similar
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`information that would have the same or similar effect;
`
`i.e. fame, marketplace or
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`corporate similarity.
`
`On a similar note, with respect to marketplace, courts have generally
`
`provided that purchases of merchandise are not made in a vacuum and consider
`
`the point-of—sale to have significant
`
`import
`
`in the analysis of similar or exact
`
`portions of subject trademarks especially since in the present case the similar
`
`portion is linguistically meaningless to an ordinary person. { A) Ye Olde Tavern
`
`Cheese Products, Inc v. Planters Peanuts Division, Standard Brands Incorporated,
`
`261 Supp. 203 151 USPQ 244 (N.D.
`
`Ill 1966), affirmed, 394 F.2d 833, 155 USPQ
`
`481 (7"‘ Cir. 1967), g) Quaker Oats Co. v. General Mills |nc., 134 F 2d 429, 432,
`
`156 USPQ 400, 435 (7‘“ Cir. 1943), and Q) Camacho Cigars, Inc v. Compania
`
`Insular Tabacalera, S.A. 171 USPQ 673 (D.D.C. 1971). }
`
`Because the Opposer has only partly supplied App|icant’s Answers to the
`
`Opposer’s interrogatories, the Applicant enters additional answers (allowed under
`
`Trademark rule §2.12O (5)) so as to not make the Opposer-provided information
`
`misleading (as in the case of APNR EX-S)). Applicant describes the use of the
`
`Exhibits under the “fairness” doctrine of
`
`the same rule.
`
`Lastly, Applicant
`
`respectfully asks the Board to use its inherent authority to accept these evidentiary
`
`PHF_NR__lOB
`
`page 3/17
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`OP 91161044
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`

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`
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`items and consider the applicability of the evidentiary item attached hereto to the
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`legal factors of proceedings of a similar nature.
`
`The above-mentioned notices for evidentiary consideration are:
`
`Evidentiagy Items
`
`APNR EX-A
`
`TTAB VUE Document reference list/title page for Opposition No.
`
`91161044 as of printed date thereon 1/15/2007.
`
`APNR EX-B
`
`TTAB VUE Document No. 10. Board order requesting parties to
`
`“refrain from including exhibits” already part of the record as set
`
`forth in APNR EX-A.
`
`APNR EX-C
`
`Applicant’s Board-accepted Affirmative Defenses (cover page only
`
`only; full text is TTAB VUE Document 5), please note APNR EX-B.
`
`APNR EX-D
`
`TTABVUE Doc No. 9 provides Applicant’s statement of Executive
`
`and managerial responsibilities as well as constant travel schedule
`
`and presence in and around the greater Corfu, NY area, since at
`
`least June 21, 2004.
`
`APNR EX-E
`
`Nevada State Secretary of State declaration for Peak Harvest
`
`Foods, LLC as
`
`legally chartered Limited Liability Company
`
`accompanied by evidence of Applicant’s participation in commerce
`
`with all previously provided material, products etc. as of at least
`
`1 1/14/2003.
`
`APNR EX-F
`
`U.S. Trademark Registration 3,156,007 registered October 17, 2006
`
`for PEAK HARVEST FOODS ®, with all requisite rights contained in
`
`said registration with continuous use since at
`
`least
`
`the dates
`
`contained therein. Opposer has a service mark that
`
`is clearly
`
`distinguishable from Applicant’s Trademark for a product.
`
`No
`
`PHF_NR_|OB
`
`page 4/17
`
`OP 91161044
`
`

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`
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`renewal dates have yet been necessary. Opposer did not oppose
`mark. Applicant has used its mark with no confusion with Opposer’s
`marks since at least 11-1-2002.
`
`APNR EX-G
`
`U.S. Trademark Registration 2,857,102 registered June 22, 2004 for
`
`CRUNCHY APPLE STIX ® with all requisite rights contained in said
`
`registration with continuous use since at
`
`least since 11-9-2002.
`
`Applicant has used its mark with no confusion with Opposer’s marks
`
`since said time. A product
`
`is very easily distinguished from a
`
`service, despite the linguistically meaningless portions of the marks
`
`in questions being similar (see Camacho Cigars, inc... cited in the
`
`preamble). No renewal periods yet required.
`
`APNR EX-H
`
`Assignment of interest from John C. Rarick to Peak Harvest Foods,
`
`LLC,
`
`reel/frame 002853/0001 on 10/27/2003 for application No.
`
`78287067.
`
`APNR EX-I
`
`Board order reminding parties of their duty to supplement discovery
`
`responses, even in the absence of a motion to compel or by stating
`
`objections to interrogatories.
`
`A party may be precluded from
`
`adducing testimony or its rebuttal if it has not so complied.
`
`APNR EX-J
`
`J1——Email from John Rarick to Edward Ansell providing information
`
`on the continuation of John C. Rarick’s Testimony from the previous
`
`day. The email was sent during normal business hours at 8:43 a.m.
`
`Pacific Standard Time. J2A—Email from John Rarick to Edward
`
`Ansell, correcting date from 2009 to 2007. J2B— Email (contained
`
`in J2 above and also contains AP NR J2B) from Mr. Ansell on
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`Tuesday January 09, 2007, the day after the start of John Rarick’s
`
`PHF_NR__lOB
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`page 5/17
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`OP 91161044
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`

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`
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`Testimony.
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`lt appears
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`that
`
`the Opposer
`
`thought
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`that
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`the
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`Testimonies of Ed Lilly and John Rarick were on the same day. So
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`Opposer was not present for, nor made itself available for the
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`Testimony of John Rarick and cannot now claim that Applicant
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`prevented the Opposer from attending. Mr. Ansell admits that he
`
`has been authorized by the Board to “attend the depositions by
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`telephone”. The Board did ‘not grant videoconferencing or other
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`visual-telecommunication attendance. Failure to attend a deposition
`
`under 37 CFR §2.123 (e) deems all exhibits in John Rarick’s
`
`testimony to have already been offered into evidence.
`
`APNR EX—K
`
`Opposer’s FIRST NOTICE OF RELIANCE TTABVUE Document
`
`No. 25 dated 6/02/2005 alleging the ordinary usage of “tomato” is as
`
`a “fruit” contrary to Supreme Court rulings. (See next).
`
`APNR EX-L
`
`US Supreme Court — Nix
`
`v. Hedden, 149 U.S. 304 (1893) 149
`
`U.S. 304 in which Supreme Court ruled that the ordinary usage of
`
`tomato is as a VEGETABLE and not a fruit as claimed by Opposer
`
`(see page L2).
`
`APNR EX-M
`
`Selected page from Opposer’s FIRST NOTICE OF RELIANCE
`
`TTABVUE Document No. 25 dated 6/02/2005 and served upon
`
`Applicant on May 27, 2005, alleging connection of hamburgers with
`
`fruit products in general and those of McDonald’s in particular,
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`consistent with the Testimony of Mr. Wensinger that opposer’s
`
`products are similar to those of McDonald’s (see next EX-N).
`
`PHF_NR_|OB
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`page 6/17
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`OP 91161044
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`

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`
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`APNR EX-N
`
`Copy of page of Mr. Wensinger’s Testimony stating the similarity of
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`In-N-Out’s products of hamburgers and cheeseburgers with those of
`
`McDona|d’s,
`
`APNR EX-O
`
`A copy of Opposer’s NR Exhibit No 12. There is no mention of
`
`Applicant’s goods,
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`i.e., Organic Crunchy Apple Stix ® or similar
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`products i.e. dried fruits,
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`fruit chips,
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`low-moisture fruit chips in
`
`Opposer’s exhibit.
`
`APNR EX-P
`
`Selected page from Opposer’s FIRST NOTICE OF RELIANCE
`
`TTABVUE Document No. 25 dated 6/02/2005 and served upon
`
`Applicant on May 27, 2005, alleging proximity of the parties’
`
`establishments.
`
`APNR EX-O
`
`Refutes Opposer’s claim of proximity using Opposer’s own criteria.
`
`Yahoo map verifying Corfu, NY address showing the distance
`
`between the parties’ establishments is approximately 2,454,4 miles.
`
`As corroborated with the Testimony of Ed Lilly, hardly a distance an
`
`ordinary person would drive for the Opposer’s products when similar
`
`products are available in and around the greater Corfu, NY area.
`
`APNR EX-R
`
`Selected pages of Opposer’s FIRST NOTICE OF RELIANCE
`
`TTABVUE Document No 25.
`
`APNR EX—S
`
`Copy of Opposer’s NR EXHIBIT NO. 16 (8-1) & 17(S-21 showing
`
`the Applicant’s answers to be exactly opposite of Opposer’s own
`
`Exhibits again contradicting Opposer’s own exhibits.
`
`Item
`
`Opposer’s claim
`
`Applicant’s
`Res onse
`
`REAL
`
`PHF_NR_|OB
`
`page 7/17
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`OP 91161044
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`

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`
`
`I'\‘ew\
`to
`S1—AP’s
`response
`Opposer’s
`Interrogatory No.
`
`0{>¢>o5c«~'5 OWN
`Admit
`
`l0V[>pIt‘CCU'\“(‘15
`Kectl Res Ponsfi.
`Partially Admit
`
`;:—AP’s
`
`Opposer’s
`15
`
`response
`
`to
`
`Interrogatory No.
`
`Admit
`
`Applicant I_)eLie§
`
`APNR EX—T Opposer’s response to Applicant’s
`
`request
`
`for documents,
`
`i.e.
`
`“surveys” in which Opposer claims:
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`“No documents or things
`
`responding to Request No. 8 were found".
`
`APNR EX-U Copy of a portion from Opposer’s NR EXHIBIT 24 discussing a
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`SURVEY that supplies a source for Opposer’s alleged fame in
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`apparent contradiction to Opposer’s previous answers to Applicant’s
`
`Request No. 8 (APNR EX—T).
`
`APNR EX—V
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`Invoice for automatic renewal of PEAKHARVESTFOODS.COM web
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`site with PHF’s home page (V2) at godaddy.com for the internet
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`channel. Cannot be updateduntil completion of present proceeding
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`to complete ©, ®, and funding for web-site funding.
`
`APNR EX-W Invoice from Opposer (EX-10-4 of supplemental
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`responses)
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`in
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`response to Applicant’s interrogatories. The Opposer has stopped
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`the payment of
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`its web maintenance contract since 7/29/2005
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`showing that the Opposer no longer uses and has abandoned the
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`web channel or Internet for its Marks. Sec dis/0 I4-(W R EV": -
`
`
`APNR EX-X Opposer
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`supplied Exhibit EX-2-1
`
`in
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`response to Applicant’s
`
`interrogatories and Request for Documents and Things. Shows
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`URL in lower left corner of the subject page.
`
`APNR EX—Y Google Search page (using browser FireFox) for URL contained in
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`AP NR EX-X showing that
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`there are no matching documents
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`PHF_NR_IOB
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`page 8/17
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`OP 91161044
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`

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`
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`corroborating APNR EX-W and Applicant’s claim of Opposer’s
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`abandonment of the internet channel, even if Opposer could send
`
`its services or hamburgers through the internet.
`
`APNR EX-Z
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`“Internet Explorer HTTP 404 Not Found” error page confirming
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`APNR EX- W, —X, and -Y and Applicant’s claim that Opposer has
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`abandoned its Mark on, through or by the internet channel.
`
`APNR EX-AA Copy of Page of Testimony of Mr. Wensinger claiming that Applicant
`
`did not provide Board-ordered Supplemental responses.
`
`APNR EX-BB Opposer’s MOTION TO PROVIDE COMPLETE RESPONSE,
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`contradicting Opposer’s own position in EX-AA above.
`
`APNR EX-CC Board Order establishing Opposer’s contradictory statements (EX-
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`AA and EX-BB) and denying Opposer’s MOTION TO PROVIDE
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`COMPLETE RESPONSES.
`
`APNR EX-DD Cover page to Applicant’s Supplemental Responses with Copy of
`
`Certificate of Mailing from Tulsa, Oklahoma. As with other dates the
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`Opposer seems to have missed that June has 30 days. Applicant
`
`complied with
`
`the
`
`subject Board Order
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`contradicting
`
`claim
`
`promulgated by Opposer.
`
`APNR EX-EE B&W Photo of box and packaging sent with APNR EX-DD
`.
`supporting prices given to Opposer showing Applicant's packaging
`
`flexibility for its various fulfillment sizes.
`
`APNR EX-FF Representative
`
`poly-fill
`
`packaging
`
`corroborating
`
`Ed
`
`Lilly’s
`
`Testimony. Very similar to EL-7 of Mr. Lilly’s Testimony. Similar in
`
`nature to fulfillment possibilities with APNR EX-EE.
`
`PHF_NR_|OB
`
`page 9/17
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`OP 91161044
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`

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`
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` C£5_ Copy of envelope in which Applicant received the transcript of Mr.
`
`Wensinger (TTAB VUE Document No. 34 dated 5/19/2006) served
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`August 26, 2005 along with Certificate of Service (GG-2).
`
`A Copy of page 67/176 of TTABVUE Document No 34, “Transcri,Qt
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`Errata Sheet”. This page is not part of the "true and exact” copy
`
`sent to Applicant by Opposer on May 26, 2005. Applicant’s original
`
`Copy can be brought into the oral hearing when and if scheduled.
`
`The present discrepancy leads the Applicant to form the belief that
`
`the copy of the Testimony of Arnold Wensinger taken July 29, 2005
`
`that Applicant received may not have been a “true and correct copy”
`
`of the transcript submitted to the Board by the Opposer and so
`
`certified by Mr. Ansell in APNR EX—GG.
`
`APNR EX-ll
`
`Exhibits showing the differences in the marketplaces between the
`
`parties’ goods, services and products. As per Supreme Court
`
`rulings, the point of purchase is a very important consideration and
`
`the marketplace for Opposer’s services (ll-1) do not show or contain
`
`Applicant’s goods and vice versa (Applicant’s marketplace ll-2);
`
`thereby alleviating any actual, potential or likely confusion.
`
`APNR EX-JJ Email from Soldiers’ Angels expressing need for and connection
`
`with Soldiers desiring vegetarian products or lifestyle based food
`
`purchases. Opposer could not participate in the same action as it
`
`does not have restaurants in Iraq, nor would it send its hamburgers
`
`to the troops.
`
`Product and market differentiation along with
`
`logistical opportunities unavailable to Opposer.
`
`PHF_NR_|OB
`
`page 10/17
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`OP 91161044
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`

`
`
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` Documents pertaining to compromised International business
`
`opportunities for products similar in nature to Applicant’s. Given the
`
`nature of this proceeding Applicant has not been able to finalize
`
`packaging requisite for international business, thereby diminishing
`
`its ability to compete in the marketplace and delay and jeopardize
`
`business success. Relates to damages incurred by Applicant (5
`
`pages, including Polish translation).
`
` g Referencing APNR EX-N in which Opposer describes the similarity
`
`of Opposer's hamburgers and cheeseburgers to McDonalds, here
`
`Opposer admits by reference that its products are of low quality and
`
`comparable to McDonald’s.
`
`APNR EX—MM British Broadcasting News service article.
`
`“Why fast food makes
`
`you get fat” published 10/22/2003. Article describes the prehistoric
`
`and genetic nature of human dietary evolution and why fast food in
`
`general and cheeseburgers in particular contribute to the overall
`
`societal weight gains, obesity and other health problems that
`
`parallel the rise in fast food consumption (see APNR EX—NN).
`
`APNR EX—NN Obesity: Responding to the Global Epidemic, Thomas A. Wadden,
`
`University of Pennsylvania School of Medicine discussing the “Toxic
`
`Environment” of fast foods (NN-3 & 4) (the Opposer’s goods and
`
`services). The author recommends on page NN-11 to “Prohibit Fast
`
`Foods and soft drinks from Schools” in the section titled “
`
`Means for Prevention” (of Obesity in young adults and children):
`
`(see APNR EX-MM above). Page NN-12 indicates “obesity is a
`
`problem out of control” and the true cost to the healthy-care system
`
`PHF_NR_|OB
`
`page 11/17
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`op 91161044
`
`

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`
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`will be enormous. Corroborates the Testimony of John C. Rarick
`
`and Fast Food Nation, the DARK SIDE of the American Meal, the
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`book provided to Applicant by Opposer as NR Exhibit 24 or AEL\l_l3
`
`§>$-Ll_2)-
`
`APNR EX-O0 Articles: a) Describing man suing Fast Food company and together
`
`with the previous exhibits, distinguishes Applicant’s healthy, organic
`
`goods from Opposer’s fatty,
`
`salty and generally accepted as
`
`unhealthy goods and services;
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`b) “Fat Suit Vs. McDonald’s
`
`-g
`
`Reinstated”. Coupled with Opposer’s testimony makes Opposer
`liable for similar suits.
`
`APNR EX-PP Documents showing Applicant’s involvement with schools and the
`
`community through public non-profit organizations like Kids First
`
`and Hands On, San Francisco both of whom are seeking to include
`
`Applicant’s products and exclude Opposer’s products and services
`
`(see also APNR EX-NN).
`
`APNR EX-QQ Emails from Opposer to Applicant showing 1) the Opposer does not
`
`have plans “...to change our menu,...” (greatly decreasing the
`
`probability that Opposer will bridge the gap between its services and
`
`the Applicant’s products (QQ-1), 2) it does not offer organic foods,
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`and 3) that Opposer does not link to other web sites (QQ-2).
`
`APNR EX—RR Email from Soldiers’ Angels suggesting a ‘link” between Applicant
`
`www.peakharvestfoocls.com and www.soldiersangels.com.
`
`Shows Applicant interact with other companies in a manner that
`
`Opposer does not. Based upon Opposer’s policy, there can be no
`
`confusion between Marks as the Opposser does not allow links to
`
`PHF_NR_|OB
`
`page 12/17
`
`.
`
`OF’ 91161044
`
`

`
`
`
`its site.“ As stated in the emails, Opposer’s stated policy is no-
`
`partnership, no-link and non-organic.
`
`APNR EX-SS Page from Opposer supplied information about Opposer’s alleged
`
`patents. Opposer’s alleged patent involves the “toasting” of buns.
`
`Nowhere in the document does the patent indicate that it makes the
`
`Opposer’s services and related goods “Crunch”, become “Crunchy”,
`
`or provide “Crunchiness” or a crunchy product characteristic, the
`
`very unique selling point (USP) of Applicant’s Crunchy Apple Stix ®.
`
`APNR EX-TT Applicant marketing piece expressing customer presence in “Tahoe”
`
`area as well as the ingredients, nutritional content, country of origin
`
`and other product characteristics, i.e. no sulfur, preservatives, fat or
`
`cholesterol.
`
`APNR EX-UU Opposer-supplied exhibit EX-4-3 showing presence in “Tahoe”.
`
`Applicant travels route 80 and 50 and forms the belief that said
`
`billboard no longer exists. Nonetheless Opposer has provided no
`
`substantiated confusion as a result of Applicant’s Mark in the vicinity
`
`of Opposer’s services.
`
`APNR EX-W Contradiction of Opposer’s claim it uses its mark on billboards. The
`
`photo demonstrates the apparent abandonment of Opposer’s Mark
`
`with
`
`respect
`
`to its billboards according to Applicant’s
`
`tenth
`
`affirmative defense. Applicant has numerous other addresses
`
`showing the same.
`
`APNR EX-WW Declaration of Edward O. Ansell dated April 19, 2005 states on
`
`page 2
`
`PHF_NR_|OB
`
`'
`
`page 13/17
`
`.
`
`OP 91161044
`
`

`
`
`
`This three-da window (emphasis added) does not
`afford Opposer adequate time to prepare its evidence,
`consult with its witnesses, and make other necessary
`arrangements...”
`
` seems to indicate that the Opposer misleads the
`Board with its submissions.
`
`£ Opposer’s Notice of taking Testimony with just three-days
`
`Board-counted notice in apparent conflict
`
`to Opposer’s
`
`statements that such notice was insufficient for Opposer
`
`(APNR EX-WW1.
`
`APNR EX-YY Letter from customer for fame of Applicant, expressing gratitude for
`
`low-sugar snacks and the increasing fame under which Applicant
`
`sells Crunchy Apple Stix ®. Numerous other documents state the
`
`same.
`
`APNR EX-ZZ Attests to the character/fame of Applicant.
`
`APNR EX-AAA Modern litigation anxieties. Wall Street Journal article “Rule of
`
`
`Law”, Stephen C. Dillard, dated November 25-26, 2OO6Ithe costs
`court actions have on company performance and the allocation of
`
`resources from productive R&D or product line expansion (very
`
`similar to the predicament suffered by Applicant due to this
`
`proceeding and Opposer’s rejection of App|icant’s offer to settle).
`
`APNR EX-BBB Photocopy of page of daily planner showing Applicant’s calendar
`
`log of
`
`representative hours spent
`
`in preparation for TTAB-
`
`submitted documents and the reading of the online laws and rules.
`
`Every other motion and cross—motion required similar
`
`time,
`
`copying, online, mailing and related financial expenses with the
`
`PHF__NR_lOB
`
`page 14/17
`
`OP 91161044
`
`

`
`
`
`subject events. Applicant realized over 46 hours of opposition
`
`related to the July filings.
`
`AfllflQ(-_C_C__C_3 Chapter Three from consultants handbook. “Building Blocks for a
`
`Successful Natural Foods/Specialty Business—Pricing
`
`and
`
`Margins”; Documents that show the price premium of Organic
`
`foods to conventional foods and the pricing premium enjoyed by
`
`Organic
`
`foods.
`
`Obtained
`
`from Consultant Bob Burke
`
`(http://www.ota.com/about/2005investors.html)
`
`and
`
`http://www. bob—burke.com/
`
`APNR EX-DDD White Castle Fact Sheet along with financial statements contained
`
`in White Castle Media Mailing.
`
`Provides comparison between
`
`quasi-public company (White Castle System,
`
`inc.) and privately
`
`held In-N-Out Burgers, supporting Applicant’s belief that Opposer
`
`has significantly greater
`
`financial and legal
`
`resources than
`
`Applicant
`
`APNR EX-EEE Documents that elucidate Applicant's significant experience with,
`I knowledge of, and likely connection with valuable investment
`
`banking contacts and related resources.
`
`Corroborates John
`
`Rarick’s Testimony.
`
`APNR EX-FFF Transcript of Settlement call transcribed by Opposer. The call
`
`was between John Rarick and Debbie VanDerWaag on August
`
`13, 2004.
`
`APNR EX-GGG Opposer’s Exhibit to January 5, 2007 Motion to Quash showing
`
`that Mr. Ansell keeps, studies, analyses and forms conclusions
`
`from envelopes mailed to Opposer by Applicant.
`
`PHF_NR_lOB
`
`page 15/17
`
`OP 91161044
`
`

`
`
`
` Applicant receipts and Certificates of Mailing showing the
`
`postmarks
`
`that were on Applicant’s mailings
`
`to Opposer.
`
`Combined with APNR EX-GGG shows Opposer aware of
`
`Applicant’s Travel Schedule established in TTAB VUE Document
`
`No. 9.
`
`APNR EX-Ill
`
`Information available online from Seneca Foods Corporation, a
`
`publicly traded corporation, describing its products, apple chips,
`
`ingredients and nutritional
`
`information. Expresses similarity to
`
`Applicant’s products except that Seneca chips are fried in oil a
`
`negative selling point for this competing product providing 7 grams
`
`of fat versus Applicant’s legal absence of fat.
`
`Seneca uses
`
`“crispy" to describe its fresh apples, not “Crunchy” as Opposer
`
`contends.
`
`APNR EX-JJJ Pages from Seneca Foods Corporation Form 10-k for the year-
`
`ending March 31, 2004, available from the US Securities and
`
`Exchange Commission online through EDGAR (www.sec.gov) at
`
`the URL listed on the exhibit. Shows decline in fruit chip sales
`
`due to the fact that they are fried in oil. Sales go down from
`
`$19,982,000 in 2002 to $15,347,000 in 2004.
`
`Expresses
`
`Applicant’s missed opportunity due to this proceeding and its
`
`inability to move fon/vard with color packaging.
`
`APNR EX-KKK Pages from Seneca Foods Corporation Form 10-K for the year
`
`ending March 31, 2006, available from the Securities and
`
`Exchange Commission online through EDGAR (www.sec.gov)
`
`PHF_NR_lOB
`
`page 16/17
`
`OP 91161044
`
`

`
`
`
`the URL listed on the exhibit. Shows ongoing decline in fruit chip
`
`sales despite the accounting restatements therein.
`
` Financial model consistent with the Testimony of John Rarick
`
`demonstrating Applicant’s lost opportunity due to this proceeding.
`
`Shows financial statements consistent with generally accepted
`
`investment banking terms, criteria, calculations and assumptions
`
`along with precedent arrows to demonstrate said calculations.
`
`APNR EX-MMM Certificate of Mailing showing Applicant’s presence in Corfu, NY
`
`on January 8"‘, 2007.n
`
`APNR EX-NNN Photo of Opposer’s roadway sign showing similarity to other fast
`
`food establishments. Also shows a regional fast—food restaurant, RQIIYIS
`using Opposer’s registered words Double in association with
`
`hamburgers and cheeseburgers in apparent
`Opposer’s mark} Dou»I»I€.
`I3eu~I°I€.
`
`infringement of
`
`Respectfully submitted,
`
`.
`
`/'cr/
`
`Joh
`
`/
`January 16, 2007
`
`
`rick, Executive Mana er
`Peak Harvest Foods, LLC
`Applicant
`
`CERTIFICATE OF SERVICE—|N-N-OUT BURGER V. PEAK HARVEST FOOD
`LLC—OPPOSITION NUMBER 91161044, I HEREBY CERTIFY that on this 1_6I:_ ay of
`January 2007, I caused to be served By the US Postal Service, postage prepaid
`
`APPLICANT’S FIRST NOTICE OF RELIANCE
`
`-
`to: EDWARD O. ANSELL, ESQ. Attorney for Opposer
`427 NORTH YALE AVENUE SUITE 204 LAREMONT, CALIFORNIA 91711-4340
`
`
`
` John Rarick
`
`PHF_NR_lOB
`
`page 17/17
`
`op 91161044
`
`

`
`
`
`USPTO TTABVUE. Trademark Trial and Appeal Board Inquiry System http://ttabvue.uspto.gov/ttabvue/v?eno=19&pno=91 161044&pty=...
`
`Search:
`
`
`
`Opposition
`
`Number: 91161044
`
`Status: Pending
`
`Filing Date: 06/21/2004
`
`Status Date: 06/24/2004
`
`Interlocutory Attorney: ANDREW P BAXLEY
`
`Defendant
`
`Name:
`
`Correspondence:
`
`
`Rarick John C.
`
`Rarick John C.
`
`PEAK HARVEST FOODS, LLC
`9079 Allegheny Road
`Corfu, NY 14036-9765
`jr@peakharvestfoods.com
`78287067
`
`Serial #:
`
`Application Status:
`Mark:
`
`Opposition Pending
`
`QUALITY YOU CAN CRUNCH.
`
`Plaintiff
`
`Name:
`
`IN—N-OUT BURGER
`
`Correspondence:
`
`EDWARD O. ANSELL
`
`427 N. YALE AVE, # 204
`CLAREMONT, CA 91711-4340
`73095009
`
`Serial #:
`
`Application Status:
`Mark:
`
`Renewed
`
`QUALITY YOU CAN TASTE
`
`Prosecution History
`# Date
`
`-History Text
`
`APNR EX—A
`
`Registration #: 1090096
`
`Due Date
`
`4_8 01/08/2007 D'S REQUEST FOR RECON DENIED/TRIAL DATES REMAIN AS SET
`
`_4_7_ 01/08/2007 DEF'S REQUEST FOR RECONSIDERATION
`
`fi-__6_ 01/05/2007 MOTS TO STRIKE DENIED[D MOT DISMISS DENIED[D EXT OF TIME
`GRANTED/P'S MOT TO QUASH DENIED
`
`4_5_ 01/05/2007 P’S MOTION TO QUASH
`
`43 12/27/2006 DEFENDANT'S NOTICE OF TAKING TESTIMONY
`
`‘fig 12/14/2006 DEFENDANT'S NOTICE OF TAKING TESTIMONY
`
`Q 12/14/2006 D'S MOTION TO STRIKE
`
`fl 09/27/2006 D'S MOT FOR PARTIAL RECON DENIED‘, P'S MOT TO COMPEL DENIED;
`T.D. RESET
`
`fl 06/19/2006 PAPER RECEIVED AT TTAB
`
`19 06/07/2006 APPL'S CORRECTION
`
`§§ 06/06/2006 APPL'S OPP TO OPP'S CROSS MOTION
`
`3_7 05/31/2006 SUSPENDED
`
`§ 05/30/2006 PAPER RECEIVED AT TTAB
`
`E 05/15/2006 APPL'S MOTION FOR RECONSIDERATION
`
`_3_4_ 05/19/2006 OPP'S FILING OF CERT TRANSCRIPT AND EXH
`
`Q 04/27/2006 CHANGE OF CORRESPONDENCE ADDRESS
`
`Q 04/18/2006 OPPOSER’S MOTION IS GRANTED SOLELY TO EXTEND TRIAL DATES ARE
`RESET
`
`1of2
`
`/M
`
`1/15/2007 11:51 AM
`
`

`
`
`USPTO TTABVUE. Trademark Trial and Appeal Board Inquiry System http://ttabvue.uspto.gov/ttabvue/v?eno=19&pno=91161044&pty=...
`
`Due Date
`
`Prosecution History
`
`# Date
`
`History Text
`
`Q 08/03/2005 D'S COMMUNICATION
`
`Q 07/30/2005 DEFENDANT’S MOTION
`
`E 08/04/2005 SUSPENDED PENDING DISP OF OUTSTNDNG MOT
`
`g 07/07/2005 P‘S MOTION TO DISMISS
`
`22 06/28/2005 TRIAL DATES RESET
`
`E 06/11/2005 SUSPENDED PENDING DISP OF OUTSTNDNG MOT
`g 06/02/2005 PLAINTIFF'S NOTICE OF RELIANCE
`Q 06/06/2005 D'S REPLY IN SUPPORT OF MOTION
`
`R
`
`Q O5/13/2005 D'S MOTION TO COMPEL DISCOVERY
`
`Q 05/19/2005 P'S MOTION FOR AN EXTENSION OF TIME
`
`Q 05/11/2005 OPPOSITION TO D'S MOTION TO COMPEL OF APRIL 28, 2005
`
`A) 05/16/2005 D'S OPPOSITION/RESPONSE TO MOTION
`
`_1_9 04/28/2005 D'S MOTION TO COMPEL DISCOVERY
`
`E 04/20/2005 P'S MOT TO COMPEL FURTHER RESP TO P'S SEC SET OF
`INTERROGATORIES TO D'S 81 REQUEST FOR PRODUCTION OF
`
`g 04/19/2005 D'S INTERROGATORIES; REQ FOR PRODUCTION OF DOCUMENTS &
`THINGS 81 REQ FOR ADMISSIONS
`
`16 03/28/2005 OTHER FILING
`
`Ii 03/31/2005 #14 GRANTED‘ TD REMAIN AS SET
`
`1_4 02/25/2005 P'S MOTION FOR AN EXTENSION OF TIME
`
`1 01/03/2005 DFS RESPONSE
`
`1 12/09/2004 EXHIBIT TO 011
`
`’|‘~Jlw
`
`_1_1 12/09/2004 D'S RESPONSE TO 010
`
`1 11/24/2004 PLS MOT FOR DISC WILL BE GIVEN NO CONSIDERATION, MOT TO
`lo
`STRIKE DENIED, PARTIES ALLOWED 30 DAYS, TDR
`
`|%--*INw!4>iU”1|O\i\1loo|\o
`
`2 on"
`
`11/08/2004 DF‘S RE: COMMUNICATION
`
`10/06/2004 SUSPENDED PENDING DISP OF OUTSTNDNG MOT
`
`09/22/2004 PLS MOTION TO STRIKE
`
`09/22/2004 PLS MOT FOR JUDGMENT
`
`08/30/2004 ANSWER
`
`08/30/2004 PLS RE: COMMUNICATION
`
`06/24/2004 PENDING, INSTITUTED
`06/24/2004 NOTICE AND TRIAL DATES SENT‘, ANSWER DUE:
`
`06/21/2004 FILED AND FEE
`
`08/03/2004
`
`Search: E
`
`AA
`
`1/15/2007 11:51 AM
`
`

`
`
`
`from striking its defenses,
`
`the sufficiency of which should)
`
`be determined on their merits.
`
`APNR EX—B
`
`Accordingly, opposer’s motion to strike is denied.
`
`Parties Advised Regarding Exhibits to Motions
`
`It is noted that opposer has enclosed as exhibits to
`.
`
`the above motions copies of the parties’ pleadings and
`
`motions previously filed herein, as well as orders
`
`previously issued by the Board in this case.
`
`The Board
`
`understands the necessity on the part of the parties to
`
`refer to these papers in their motions and responses.
`
`However, by their very nature,
`
`the pleadings and motions
`
`previously filed by the parties as well as orders issued by
`
`the Board herein already form part of the case file for this
`_____,_;_——————————-—-—-—————————--———————————______.——————
`proceeding. As such,
`their inclusion as exhibits to the
`
`parties’ motions and other filings is at best duplicative,
`
`
`and the p

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