throbber
Proceeding
`Party
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA92861
`ESTTA Tracking number:
`08/02/2006
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91171068
`Defendant
`HORIZONTE LTDA.
`HORIZONTE LTDA.
`Avenida Ibirapuera, 810-04028-000 BRX
`Sao Paulo / SP,
`
`Correspondence
`Address
`
`D. PETER HOCHBERG
`D. PETER HOCHBERG CO., L.P.A.
`1940 East 6th Street - 6th Floor
`Cleveland, OH 44114
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Answer
`James L. Bikoff, David K. Heasley
`jbikoff@sgbdc.com, dheasley@sgbdc.com
`/J.Bikoff/, /D.Heasley/
`08/02/2006
`Answer and Affirmative Defenses.pdf ( 18 pages )(1071243 bytes )
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91171068
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`PLATYPUS WEAR, INC.,
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`Opposer,
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`V.
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`HORIZONTE LTDA,
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`Applicant
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`ANSWER AND AFFIRMATIVE DEFENSES
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`In answer to the Notice of Opposition, Applicant, Horizonte Ltda., by and through its
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`undersigned counsel, generally denies the claims made by Opposer, Platypus Wear, Inc.,
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`except where specifically admitted herein, and states:
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`1.
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`2.
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`The averments in paragraph 1 of the Notice of Opposition are admitted.
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`The averments in paragraph 2 of the Notice of Opposition are admitted.
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`The averments in paragraph 3 of the Notice of Opposition are admitted.
`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 4, and therefore denies same.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 5, and therefore denies same.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 6, and therefore denies same.
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`10.
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`11.
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`12.
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`Applicant denies that Opposer has rights in a family of marks, or that Opposer
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`owns all marks containing the words “bad boy.” All other averments made in
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`paragraph 7 are denied.
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`Applicant denies that Opposer owns any Valid, subsisting or enforceable
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`copyright in any of the works depicted in paragraph 8. All other averments made
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`in paragraph 8 are denied.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 9, and therefore denies same.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 10, and therefore denies same.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averments in paragraph 1 1, and therefore denies same.
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`Applicant denies the averments in paragraph 12 Further answering, Applicant
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`notes that Opposer, in a sworn allegation of use filed with the USPTO on May
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`24, 2006, falsely avers that it has used the BAD BOY FACE mark that is the
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`subject of its Application Serial No. 78/323,3 86 as of November 15, 2003, and
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`has used the mark in commerce in the United States since February 24, 2006.
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`Opposer’s specimen of use, a photograph of an energy drink can, is in fact a copy
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`of a can produced by Applicant, Horizonte Ltda. The can bears Applicant’s BAD
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`BOY POWER DRINK mark and Design. At the bottom of the can is the Internet
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`domain name for Applicant Horizonte Ltda.’s website,
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`www.badboypowerco.com. Applicant denies that Opposer has used the mark, or
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`used the mark in commerce in the United States. Moreover, such belated use, if
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`13.
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`14.
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`15.
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`16.
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`any, would be insufficient to establish priority over Applicant’s constructive date
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`of first use. All other averrnents in paragraph 12 are denied.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the averrnents in paragraph 13, and therefore denies same.
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`Applicant denies that Opposer’s marks are famous. Applicant is without
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`knowledge or information sufficient to form a belief as to the truth of the
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`remaining averments in paragraph 14, and therefore denies same.
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`Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining averments in paragraph 15, and therefore denies same.
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`In answer to the averments made in paragraph 16, Applicant avers that at all
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`material times Opposer lacked any valid or enforceable copyright or any
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`trademark rights in connection with beverages in Brazil, and that Opposer’s
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`licensee and agent in Brazil lacked any trademark rights in connection with
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`beverages in Brazil. Nonetheless, Opposer’s licensee and agent represented to
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`Applicant that it owned the rights to the subject mark that would become
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`Applicant’s Mark, and induced Applicant to enter into a license agreement with it
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`for use of the subject mark in connection with beverages. Much later, after
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`Applicant had invested substantial amounts of money developing and marketing
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`the beverage product under Applicant’s Mark, Opposer contacted Applicant and
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`led it to believe that Applicant could not only continue using Applicant’s Mark as
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`it had in Brazil, but that Opposer and Applicant would embark on a joint venture
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`to market beverages worldwide under Applicant’s Mark. Applicant is the senior
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`and legitimate user of Applicant’s Mark in Brazil in connection with beverages.
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`All other averments are denied.
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`17.
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`In answer to the averments made in paragraph 17, Applicant avers that Opposer
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`made representations to Applicant, leading it to believe that the two parties would
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`embark on a joint venture to market beverages worldwide under Applicant’s
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`Mark.
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`In so doing, Opposer not only induced Applicant to continue using
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`App1icant’s Mark in Brazil, but to expend significant amounts of time, effort and
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`money making preparations and taking action to expand use of Applicant’s Mark
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`into other countries, such as Mexico and the United States. It is admitted that as a
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`consequence of the wrongfiil course of conduct pursued by Opposer, Applicant is
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`engaged in litigation with Opposer in Brazil, Mexico, and elsewhere. All other
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`averments are denied.
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`18.
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`In answer to the averrnents made in paragraph 18, Applicant denies that Opposer
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`has any valid or enforceable copyright’, denies that Opposer has any prior or
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`senior rights to use BAD BOY in connection with beverages, and avers that
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`Applicant has the right to use Applicant’s Mark in connection with beverages in
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`the United States. All other averrnents in paragraph 18 are denied.
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`19.
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`In answer to the averrnents made in paragraph 19, Applicant avers that Opposer
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`induced Applicant to execute documents, in a form dictated by Opposer’s
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`counsel, authorizing the transfer of certain trademark applications by representing
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`that the parties were going to enter into a joint venture to market beverages using
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`App1icant’s Mark (as set forth in Applicant’s affirmative defenses, which are
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`20.
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`21.
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`22.
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`23.
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`incorporated by reference). It is admitted that Opposer later surrendered the
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`subject registration. All other averments are denied.
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`Applicant incorporates by reference the foregoing answer, admits that as a
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`consequence of Opposer’s course of conduct it has no current registration in the
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`United States, and denies all other averments made in paragraph 20.
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`In answer to the averments made in paragraph 21, Applicant avers that Opposer
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`has been connected with Applicant’s use and intended use of Applicant’s Mark
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`for an extended period of time. In 2001, Opposer, which had trademark
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`registrations for BAD BOY in certain countries for use on clothing, contacted
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`Applicant, which has senior rights to use Applicant’s Mark in connection with
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`beverages. Opposer led Applicant on for years, inducing Applicant to invest
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`significant sums of money by holding out the promise of a joint venture to market
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`Applicant’s BAD BOY POWER DRINK globally. In November 2005, Opposer
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`abruptly broke off the parties’ relationship, but has subsequently sought to exploit
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`the goodwill Applicant developed in connection with Applicant’s Mark.
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`Applicant admits that Opposer now has no rights in Applicant’s Mark, and denies
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`the remaining averments made in paragraph 21.
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`Applicant denies the averments made in paragraph 22.
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`In answer to the averments made in paragraph 23, Applicant avers that Opposer
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`has no valid or enforceable copyright, that Opposer’s cited application, even if
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`used as of February 2006, fails to establish any prior rights, and otherwise denies
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`any likelihood of confusion.
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`24.
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`In answer to the averments made in paragraph 24, Applicant avers that
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`Applicant’s Mark must be considered in its entirety in determining its commercial
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`impression, even if certain words are disclairned, and that Applicant’s Mark
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`indicates Applicant as its source. All other averrnents made in paragraph 24 are
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`25.
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`26.
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`27.
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`28.
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`29.
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`30.
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`31.
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`32.
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`33.
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`denied.
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`Applicant denies the averments made in paragraph 25.
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`Applicant denies the averments made in paragraph 26.
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`Applicant denies the averments made in paragraph 27.
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`Applicant denies that Opposer’s marks are famous, and denies all other averrnents
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`made in paragraph 28.
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`Applicant denies that Opposer owns any valid or enforceable copyright, and
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`denies all other avennents made in paragraph 29.
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`Applicant denies that Opposer owns any valid or enforceable copyright, and
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`denies all other averinents made in paragraph 30.
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`Applicant denies the averrnents made in paragraph 31.
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`Affirmative Defenses
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`FIRST DEFENSE
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`Opposer lacks any valid or enforceable copyrights in the works identified in
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`paragraph 8 of the Notice of Opposition (the “Works”).
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`The works identified in paragraph 8 of the Notice of Opposition were published
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`repeatedly without the requisite copyright notice by Opposer and/or others in the
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`early- to mid-l980’s, prior to the March 1, 1989 effective date of the Berne
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`Convention Implementation Act. The Works are not owned by Opposer, and are
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`void, unenforceable and not subject to copyright protection.
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`34.
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`Knowing this, Opposer, led by its then-president and Chief Executive Officer,
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`Laurens Offner, nonetheless sought to obtain registrations from the United States
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`Copyright Office “expressly for the international clout it would net us.”1
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`35.
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`When Opposer first applied for copyright registration of the Works beginning in
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`1995, it admitted to the Examiner in the Copyright Office that the BAD BOY
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`figure “had been published in several forms and that none had contained
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`copyright notice,” and that there was no basis for pursuing its registration.
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`36.
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`Later, however, Opposer represented to the Copyright Office that the Works for
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`which Opposer ‘sought registration had been published later, and were not derived
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`from anything more than a concept of an earlier design published by Opposer in
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`August 1985.
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`37.
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`But the deposits and samples Opposer has filed with the Copyright Office and the
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`USPTO in support of its copyright and trademark applications, respectively,
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`indicate that the Works consist of images published by Opposer and others before
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`March 1, 1989; they fail to establish later publication, and fail to show the
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`required copyright notices. Opposer’s sworn copyright applications failed to
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`disclose that the Works in question were all versions of an earlier design or
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`designs, and were not entitled to copyright protection.
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`38.
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`Opposer, through its then-president and Chief Executive Officer, obtained the
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`copyright registrations for the Works through fraudulent and deliberate
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`' Deposition of Laurens Offner in Ponce de Leon v. Offner, U.S. District Court for the Northern District of
`Ilinois, Case No. 02 C 3919, at p. 183.
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`misrepresentations to the U.S. Copyright Office. If Opposer had provided
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`complete and truthful information to the Copyright Office regarding the
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`publication and ownership of the Works, Opposer would have failed to satisfy the
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`requirements of copyright law, and its registrations would, of necessity, have been
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`refused.
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`In its representations to Applicant, and in its Notice of Opposition, Opposer has
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`repeatedly and fraudulently represented that it owns valid and enforceable
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`copyright registrations in the Works.
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`Opposer’s copyright registrations are invalid, void, and unenforceable, and the
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`Works are in the public domain, and are not subj ect to copyright protection,
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`SECOND DEFENSE
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`Opposer’s claims are barred by the doctrine of estoppel.
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`In July 1992 Opposer entered into an agreement with a Brazilian corporation, Big
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`Blue Comericio (“Big Blue”), that provided inter alia for the licensing and
`marketing of certain BAD BOY marks on clothing in Brazil.
`A
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`In August 1998 Opposer and Big Blue enter into another Agreement for licensing
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`of BAD BOY marks on clothing in Brazil. By Addendum A to that Agreement,
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`Opposer granted Big Blue automatic approval of all product samples, advertising
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`materials and customers-—approval that Opposer would have to expressly rescind
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`39.
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`40.
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`41.
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`42.
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`43.
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`if it disapproved of a certain customer or product.
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`44.
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`From l992 through 2002, neither Opposer nor Big Blue used or owned any BAD
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`BOY trademarks in Brazil in connection with beverages.
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`45.
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`In 1999 and 2000, Opposer’s licensee and agent, Big Blue, represented to the
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`founders of Applicant, Horizonte Ltda., that Big Blue owned the copyright and
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`trademark rights to the BAD BOY marks, and that it could license Applicant to
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`use App1icant’s Mark, BAD BOY POWER DRINK and Design, in connection
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`with beverages. Big Blue did not reveal: that its claimed rights derived from any
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`other entity; that it had an undisclosed principal; that its trademark use of BAD
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`BOY marks was limited to clothing; and that it had no trademark rights in the
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`BAD BOY marks in connection with beverages.
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`46.
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`In reliance on the material misrepresentations and omissions made by Opposer’s
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`licensee and agent, Big Blue, Applicant, Horizonte Ltda., entered into a license
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`agreement with Big Blue on September 5, 2000 for use of App1icant’s Mark,
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`BAD BOY POWER DRINK and Design, in connection with beverages. On the
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`strength of this brand, Applicant gathered investors, developed and tested its
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`energy drink product, and invested considerable amounts of time and money
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`launching, promoting and marketing its product under Applicant’s Mark.
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`47.
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`Applicant was the first to use any BAD BOY mark in connection with a beverage
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`in Brazil, or in the world, for that matter.
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`48.
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`For an extended period of time, while Applicant invested great sums developing
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`and marketing BAD BOY POWER DRINK, Opposer, Platypus Wear, Inc., failed
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`to monitor, police, or object to Applicant’s use of the mark.
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`49.
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`Much later, in or about 2001, long after Applicant had invested great sums of
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`money, Laurens Offner, Opposer’s president, finally contacted Applicant and
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`asserted that Opposer had rights in the BAD BOY marks.
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`In fact, Opposer lacked
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`valid copyright protection, and had no trademark rights in the use of BAD BOY
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`marks on beverages. Moreover, other companies throughout the world had rights
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`in marks containing the words BAD BOY.
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`50.
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`In any event, far from objecting to Applicant’s license from Big Blue or
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`Applicant’s use of BAD BOY POWER DRINK, Opposer, by its president, wrote
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`to Applicant in July 2002: “Please allow me to clarify that we plan no action
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`against your company as it relates to the use of our mark in Brazil while you are
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`legally under a binding agreement with Big Blue.
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`On behalf of Platypus Wear,
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`Inc., owner of the BAD BOY marks, I hereby commit to, once a court rules in our
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`favor against Big Blue, to offer you a license agreement with very similar terms to
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`the one you have with Big Blue for a longer term.”
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`SI.
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`Moreover, Opposer proposed that the parties enter into a joint venture to promote
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`and expand the use of the BAD BOY POWER DRINK energy drink worldwide.
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`Opposer wrote to Applicant again in July 2002: “I am very anxious to start
`embarking on a plan to help increase your distribution. As you know, we are
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`impressed by the results you have achieved so far in Brazil, especially after
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`factoring in the unforeseen circumstances that were beyond your control.
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`I think
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`there is a lot of promise in expanding the market for BAD BOY energy drinks.
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`Of course we realize this after your hard efforts and the successes experienced
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`because of them. We are not only pleased with the formula, packaging and
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`marketing, but found the association with the University of Sao Paolo [which
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`helped Applicant develop the drink] to be a brilliant idea. Even more exciting is
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`to have found a partner whose marketing ideas are so aligned with ours.”
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`52.
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`Opposer, which had no beverage production capacity of its own, enticed
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`Applicant with the prospect of a joint venture or a global distribution and
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`marketing agreement that would enable the parties to jointly explore the beverage
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`category throughout the world. To this end, Opposer encouraged and induced
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`Applicant Horizonte Ltda. to file applications to register Applicant’s Mark, BAD
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`BOY POWER DRINK in Japan, the European Union, Mexico, and the United
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`States.
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`53.
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`As a show of its good faith intent to form the joint venture, Applicant, at
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`Opposer’s request, executed documents, in a form dictated by Opposer’s counsel,
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`authorizing the temporary transfer of certain of its trademark applications, to be
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`held by Opposer pending and contingent upon the formation of the joint venture.
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`The applications were to revert to Applicant if for any reason the joint venture
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`was not formed.
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`54.
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`During that time, and unbeknownst to Applicant, several siblings of Laurens
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`Offner, as shareholders of Opposer, Platypus Wear, Inc., a closely-held
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`corporation, began in March 2002 to file lawsuits against him, variously alleging
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`that he engaged in corporate malfeasance by voting shares not owned by him, and
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`converting corporate assets. The lawsuits were consolidated in the Superior Court
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`of California in San Diego, which, on May 16, 2002, issued a preliminary
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`injunction preventing Laurens Offner from transferring trademarks of Platypus
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`Wear, Inc. without a majority vote of its board of directors. The preliminary
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`injunction did not address or apply to Applicant’s Mark. The preliminary
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`injunction left Laurens Offner in his position as president of Platypus Wear, Inc.,
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`with real and apparent authority to deal with Applicant, Horizonte Ltda., which
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`was not served a copy of the order. As the Plaintiff siblings admitted,
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`“Throughout the pre-trial phase of the litigation, Laurens controlled PWI
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`[Platypus Wear, Inc.].”2
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`55.
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`Throughout the following year, at Opposer’s behest, per its president, Laurens
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`Offner, Applicant Horizonte Ltda. continued in good faith to expand its use of its
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`BAD BOY POWER DRINK mark by making, for example, preparations to start
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`marketing the product under that brand in Mexico.
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`56.
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`On June 27, 2003, the Superior Court of California found in favor of the plaintiff
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`siblings of Laurens Offer, who, the next day, removed him from his position as
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`president of Opposer, Platypus Wear, Inc. and replaced him with his brother,
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`Robin Offner.
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`In mid-October 2003, the in—house counsel of Platypus Wear
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`emailed Applicant to inform it that Laurens Offner was no longer head of
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`Platypus Wear, and that Robin Offner, its new president, would continue to confer
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`with Applicant in Sao Paolo regarding the companies’ future business
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`relationship.
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`57.
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`In or about January 2004 Applicant Horizonte Ltda. explained to Robin Offner
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`that Horizonte Ltda. had entered into an agreement previously with Platypus Wear
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`through his brother, that this agreement aimed at constituting a joint venture, that
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`Horizonte Ltda. had fialfilled itspart and Platypus Wear had not, and that since the
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`agreement had not been fulfilled by Platypus Wear, Horizonte Ltda. had retrieved
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`its registrations/applications.
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`2 Buckley v. Platypus Wear, Inc., Case No. 04 CV 7 l2—BTM in the U.S. District Court for the Southern District
`of California. Platypus Wear, Inc. Memorandum in support of Motion to Remand. April 15, 2004 at 8.
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`

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`58.
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`Robin Offner picked up where his brother had left off, meeting with principals of
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`Applicant Horizonte Ltda. On August 7, 2004, Mr. Offner wrote to Applicant,
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`stating in pertinent part, “Thank you for taking the time to meet with me,
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`particularly on such short notice.
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`I am encouraged that we have an opportunity to
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`put the unfortunate past disputes behind us in order to put our energies where they
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`belong: developing the Bad Boy brand world wide. We had two meetings on
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`August 5 and 6, each meeting lasting about two hours.
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`We both agree that we
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`must build mutual trust in order to conduct business together in the future.”
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`59.
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`The parties’ talks continued. For example, Robin Offner wrote to Applicant
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`again on September 28, 2004: “I want to set some preliminary meetings with
`potential distributors in the US and Mexico and would like to have some product
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`to show them. How can I get a case or more of your energy drink?” He wrote to
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`Applicant again on November 29, 2004 about the ingredients for “our Bad Boy
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`product” and how it would compete with energy drinks of other companies.
`Applicant, acting in good faith and placing its trust in Oppoiser, developed a
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`60.
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`beverage can bearing the BAD BOY POWER DRINK and Design mark for the
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`United States market, and provided the requested samples of the can to Opposer.
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`The bottom of each can bore the Internet address www.BadBoyPowerCo.com,
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`registered and owned by Applicant.
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`61.
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`Applicant prepared a draft joint venture agreement with Opposer, and asked
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`Robin Offner to cooperate in drafting the final documents constituting the joint
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`Venture.
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`

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`62.
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`The next year, in February 2005, Robin Offner wrote again, stating, “I hope to
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`have a draft of the LLC Uoint venture agreement] complete by mid-February. I
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`also hope to go to Brazil around the 20th to finalize the points.
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`I will provide you
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`with a draft agreement as soon as I have it and we can negotiate the finer points
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`when we meet.”
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`63.
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`In keeping with the parties’ ongoing cooperative efforts to form the joint venture,
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`Opposer represented to Applicant in mid-July 2005 that“ Although we do not
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`have a signed agreement at this point in time, We all have agreed orally to operate
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`under the general terms of these drafts and to deal with each other in good faith.”
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`64.
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`Applicant developed its Internet website, Www.BadBoyPowerCo.com, which
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`displayed the beverage can Applicant developed for the United States market and
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`described the BAD BOY POWER DRINK energy drink. When Applicant sent a
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`copy of the website to Opposer in late September 2005, Opposer responded, “I
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`love the graphics!
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`I think the content needs some Work to be more “hip” and
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`more Americanized (if this is for the American audience). There are some
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`mistakes in the English and other wording that makes it read a bit too formal.
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`I
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`suggest hiring a young, American writer.”
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`65.
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`But ultimately, after leading Applicant on for years and inducing Applicant to
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`invest great sums developing and promoting Applicant’s BAD BOY POWER
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`DRINK mark for the United States market, as well as other countries, Opposer
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`broke off the parties’ talks in November 2005 and began to exploit the good will
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`Applicant had developed in Applicant’s Mark.
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`

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`66.
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`Using the samples it obtained from Applicant, Opposer photographed
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`Applicant’s energy drink can. Then Opposer averred, in a sworn statement of use
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`filed with the USPTO, that it had used the mark depicted on Applicant’s can in
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`commerce since November 15, 2003, and in interstate commerce in the United
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`States since February 24, 2006.3 Opposer’s specimen of use was its photograph
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`of Applicant’s energy drink can, bearing Applicant’s Mark and Applicant’s
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`website, www.BadBoyPowerCo.com.
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`67.
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`By the Words, conduct, and silence of its agents, officers and employees, Opposer
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`misled Applicant into reasonably inferring that Opposer would not assert any
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`rights it may have against Applicant. Applicant relied upon Opposer’s aforesaid
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`conduct. Due to this reliance, Applicant would suffer material prejudice if
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`Opposer’s delayed assertion of such rights is permitted. Opposer’s claims are
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`barred by the doctrine of estoppel.
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`THIRD DEFENSE
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`68.
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`69.
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`All prior averrnents of fact are incorporated by reference herein.
`
`Opposer actively represented that it would not assert a right or a claim against
`
`Applicant. The delay between Opposer’s active representation and current
`
`assertion of that right or claim is not excusable. The delay has caused Applicant
`
`undue prejudice.
`
`70.
`
`Opposer’s claims are barred by the doctrine of acquiescence.
`
`FOURTH DEFENSE
`
`71.
`
`All prior averrnents of fact are incorporated by reference herein.
`
`3 Allegation of Use Specimen filed by Opposer on May 24, 2006 in support of Opposer’s Application Serial
`No. 78/323,386 for BAD BOY FACE for use on energy drinks and other beverages.
`
`

`
`
`
`72.
`
`73.
`
`74.
`
`75.
`
`76.
`
`77.
`
`78.
`
`79.
`
`Opposer’s claims are barred by its unclean hands.
`
`FIFTH DEFENSE
`
`All prior averments of fact are incorporated by reference herein.
`
`Opposer’s claims are barred by its fraud.
`
`SIXTH DEFENSE
`
`All prior averments of fact are incorporated by reference herein.
`
`Opposer’s claims are barred by the doctrine of laches.
`
`SEVENTH DEFENSE
`
`All prior averrnents of fact are incorporated by reference herein.
`
`Opposer’s cited registrations are limited to clothing.
`
`Opposer’s Application Serial Nos. 78/323,386 and 78/323,357, reflecting the
`
`BAD BOY Face and BAD BOY Word mark, respectively, for use on energy
`
`drinks and other non—alcoholic beverages, are subj ect to Applicant’s prior and
`
`senior rights in the beverage class, and are not entitled to registration.
`
`WHEREFORE, having fully answered, Applicant, Horizonte Ltda., respectfully
`
`requests that Opposer Platypus Wear, Inc.’s opposition to Applicant’s Application be
`
`dismissed, and that the Application proceed to registration.
`
`Respectfully Submitted,
`
`4:’
`
`‘~
`
`M
`
`/J
`
`arr"
`
`.-6"”
`
`
`
`
`/ «flames L. BikoffGbikoff@%hdc.com)
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`M,’ D .
`yr’
`,:
`,;>‘”,;_gT’'T’‘’
`- ( .
`...mis=;r
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`David K. Heasley (dheasley@s?§,b:”h”§l:E;:@'irii')‘”c ’
`1
`
`VJenny Splittrév (jsplitter@sgbdc.com)
`
`

`
`
`
`Silverberg, Goldman & Bikoff, LLP
`Suite 120
`1101 30”‘ Street, N.W.
`Washington, D.C. 20007
`(202)944-3300 phone
`(202)944-3306 fax
`Attorneys for Applicant
`
`

`
`
`
`Certificate of Filing
`
`I hereby certify that the foregoing was filed electronically with the Trademark Trial
`
`and Appeal Board of the U.S. Patent and Trademark Office Via the on—line filing system on
`
`the USPTO website on August 2, 2006.
`
`:‘%"“=
`
`=~L_3.»:&ia£
`
`2”’
`
`” A
`
`Certificate of Service
`
`I hereby certify that on this 2“ day of August 2006 a copy of the foregoing was sent
`
`by first class mail, postage prepaid, to:
`
`Lisa A. Osman, Esq.
`Dorsey & Whitney
`Republic Plaza Buildiiig
`Suite 47%
`
`370 ‘i7tl": Street
`
`Denver, CO 8(l202—564”/'
`AIz'(2r'neysgfE)r Opposer
`
`-V
`
`“g
`
`°

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