IN THE UNITED STATES PATENT AND TRADEMARK OF l.'1\/1.:
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`LEO PHARMA A/S
`
`Opposer,
`
`Applicant.
`
`V.
`
`LEV PHARMACEUTICALS, INC.
`
`Opposition No. 91 171694
`Serial No. 76/636,322
`
`IIIIHIlllllllllllllflllllllllllIlmlllllllllllll
`
`U5. paiem £1 more/m Ha} 1 REM at
`
`‘I
`
`CEWCATEOFMAMNG
`I hereby certify that this correspondence is being
`deposited with the United States Postal Service as first
`class mail in an envelope addressed to Commissioner for
`Trademarks, PO BOX 1451, Alexandria, Virginia
`22313-1451 on:
`
`Date:
`
`Signature: Name:
`
`APPLICANT’S RESPONSE TO OPPOSER’S MOTION FOR SUMMARY JUDGMENT
`
`Applicant Lev Pharmaceuticals, Inc. (“Applicant”) respectfully submits this
`
`memorandum in opposition to Opposer’s Motion for Summary Judgment (“Opposer’s Motion”)
`
`filed by LEO Pharma A/S (“Opposer” or “LEO”). Opposer’s Motion is unsupported by any
`
`allegation in the Notice of Opposition, and contravenes TBMP § 528.07 and Fed. R. Civ. P. 56.
`
`Opposer’s Motion is therefore untenable, and warrants denial.
`
`I.
`
`PRELIMINARY STATEMENT
`
`There are multiple substantive reasons why the Board should deny Opposer’s
`
`Motion on the merits. As a threshold matter, however, denial of Opposer’s Motion is compelled
`
`because Opposer’s Motion focuses solely on new issues not heretofore properly introduced by
`
`Opposer.
`
`KL3 Z64636l.l
`
`

`
`II.
`
`SUMMARY
`
`Opposer’s Motion violates the requirement of the Federal Rules of Civil Procedure
`
`and the Board’s Manual of Procedure that a summary judgment motion be based on issues that
`
`have previously been pleaded. Because all of the issues raised in Opposer’s Motion were first
`
`introduced by the Motion itself, summary judgment is not appropriate.
`
`In this regard, there is no mention in the Notice of Opposition of any of the three
`
`contentions upon which Opposer’s Motion is based, namely: (1) Applicant does not and has not
`
`provided to others the services identified in its application; (2) the specimen submitted in the
`
`application does not evidence service mark use; and (3) Applicant has committed fraud on the
`
`PTO by alleging service mark use since March 19, 2003. A copy of the Notice is armexed as
`
`Exhibit A; its allegations are summarized as follows:
`
`Para. 1
`Para.2
`
`Para.3
`
`Para.4
`
`Para.5
`
`Para.6
`
`Para.7
`
`Para.8
`
`Para.9
`
`Para. 10
`
`Para.1 1
`
`Para.12
`
`Para.13
`
`Para. 14
`
`Para. 15
`
`Para. 16
`
`Para.17
`
`Application for LEV PHARMA.
`Opposer’s marks.
`Opposer’s marks.
`Description of Opposer.
`Applicant’s date of first use.
`Opposer’s priority of use before filing date of LEV PHARMA.
`Opposer’s priority of use before Applicant’s date of first use.
`Opposer’s goodwill in its marks.
`Opposer’s claim of priority under §44.
`Opposer’s claim of priority under §44.
`Nature of Opposer’s use of its marks.
`Opposer’s goodwill in its registered marks.
`Similarity of parties’ marks; likelihood of confusion.
`Likelihood of confusion; potential harm to Opposer.
`Benefit to Applicant due to similarity of parties’ marks.
`Similarity of parties’ marks/goods/services; likelihood of confusion.
`Damage to Opposer.
`
`As can be seen, not one of the allegations addresses the issues raised in Opposer’s
`
`Motion.
`
`KL3 264636l.l
`
`

`
`Indeed, Applicant only became aware that Opposer was taking the positions
`
`argued in Opposer’s Motion upon its first reading of same. Lodged by Opposer on the brink of
`
`the close of discovery — as Applicant waited in vain (for over two months) to receive
`
`supplemental discovery responses which Opposer had been directed to furnish by the Board] —
`
`Opposer’s Motion was prepared and sprung under cover of the pretense that Opposer had “back-
`
`burnered” the Board-prescribed discovery so that its efforts could be devoted to advancing
`
`settlement considerations. (See Exhibits B1—B3, detailing exchange between the parties.) From
`
`all that appears, this was not the case, as Opposer was in actuality instead working on the Motion.
`
`Opposer’s Motion epitomizes the sort of ambush tactics which the Federal Rules
`
`were meant to counteract, and can only be seen as yet another attempt by Opposer to frustrate
`
`orderly progress of the opposition proceeding that Opposer itself has initiated. Because
`
`Opposer’s Motion is procedurally defective, it cannot be sustained.2
`
`III.
`
`ARGUMENT
`
`A.
`
`Procedural Grounds for Denial
`
`Opposer’s Motion, which is based entirely on unpleaded issues, is impermissible
`
`and may not be argued or ruled upon. The law is clear that a party may not obtain summary
`
`judgment on an issue that has not been pleaded. TBMP § 528.07(a) (citing Fed. R. Civ. P. 56(a)
`
`and 56(b)); S. Indus. Inc. v. Lamb-Weston Inc., 45 U.S.P.Q.2d 1293, 1297 (TTAB 1997) (denying
`
`petitioner’s motion for summary judgment on unpleaded claim); Greenhouse Sys. Inc. v. Carson,
`
`‘ The Board’s direction to such effect appeared in the Order issued December 4, 2007, stating “Now that the Board’s
`standard protective order is in place, it is expected that opposer will provide more complete responses to applicant’s
`written discovery requests.”
`
`2 It is Applicant’s understanding that this proceeding is suspended and that consequently no discovery motions are
`proper at this time. At the appropriate time, and as suggested by the Board’s Order, Applicant intends to file a Cross
`Motion under Rule 37 to compel the discovery ordered of Opposer by the Board. Applicant further reserves the right
`to amend its affirmative defenses or take other action as appropriate in the event that information is learned from
`Opposer’s documents (if ever produced) which would support additional claims.
`
`KL3 2646361.!
`
`

`
`37 U.S.P.Q.2d 1748, 1750 n.5, 1751 (TTAB 1995) (issues which were not pleaded by opposer as
`
`grounds of opposition may not serve as bases for summary judgment); Consol. Foods Corp. v.
`
`Berkshire Handkerchief Co., Inc., 229 U.S.P.Q. 619, 621 (TTAB 1986) (denying opposer’s
`
`“fatally defective” summary judgment motion because the only ground alleged therein, i.e., fraud
`
`of the applicant, had not previously been pleaded in the opposition); Drive Trademark Holdings
`
`LP v. Inofin, 83 U.S.P.Q.2d 1433, 1437 (TTAB 2007) (refusing to consider registrations that
`
`were not pleaded in notice of opposition and were asserted for the first time in opposer’s motion
`
`for summary judgment); Fishking Processors Inc. v. Fisher King Seafoods Ltd. , 83 U.S.P.Q.2d
`
`1762, 1764, 11.3 (TTAB 2007) (noting that unpleaded issues are not a basis for entering summary
`
`judgment).
`
`The prohibition against basing a summary judgment motion on unpleaded issues is
`
`especially significant where the asserted ground for summary judgment is fraud, since in pleading
`
`fraud, “the circumstances
`
`shall be stated with particularity.” Consol. Foods, 229 U.S.P.Q. at
`
`621 (citing Fed. R. Civ. P. 9(b)).
`
`Here, Opposer should be precluded from obtaining summary judgment on each of
`
`the three new issues raised in its Motion. None of these issues has ever before been pleaded in
`
`this proceeding. Indeed, Opposer has failed to allege in its Notice of Opposition a single fact in
`
`support of any of these claims, including its fraud claim, much less pleaded such allegations with
`
`sufficient particularity to satisfy the Federal Rules requirements.
`
`Throughout the pleading and discovery phases of this proceeding, the only claim
`
`which Opposer has asserted against registration of App1icant’s application is alleged likelihood of
`
`confusion. The obligation to provide Applicant with fair notice of the new claims carmot be
`
`KL3 2646361.!
`
`

`
`dispensed with by Opposer at its sole discretion. Opposer should be precluded from obtaining
`
`summary judgment on each of the issues raised in Opposer’s Motion.
`
`B.
`
`The Eguities
`
`Opposer’s exploitation of the instant proceedings, via Opposer’s Motion,
`
`transcends mere tactical garnesmanship. Rather, it extends to a fundamental subversion of the
`
`opposition process, whereby Opposer — having “stonewalled” Applicant’s attempts at discovery,
`
`to the point of disregarding a Board Order that such discovery be furnished — now files for
`
`summary judgment on grounds never before pleaded, in another effort to obstruct the proper
`
`progress of this proceeding and shield its case from scrutiny.3
`
`If Opposer’s Motion is entertained, Opposer will have succeeded in boldly
`
`manipulating the Rules to enjoy the privileges of having initiated this Opposition, but evade the
`
`responsibilities of good faith participation therein. Applicant, on the other hand, will be
`
`prejudiced with defending itself against Opposer’s new “stealt ” (yet meritless) allegations,
`
`premised on information purportedly learned (ironically) from documents diligently produced by
`
`Applicant over one year ago. Opposer’s Motion therefore also warrants denial on grounds of
`
`fairness. Opposer should further be compelled to comply with the Board’s Order by
`
`supplementing its responses to Applicant’s discovery requests.
`
`‘
`
`C.
`
`Substantive Treatment Deferred
`
`There are several reasons that support denial of Opposer’s Motion on the merits.
`
`However, according to TBMP § 528.07(a):
`
`[I]f the parties, in briefing summary judgment motion, have treated
`an unpleaded issue on its merits, and the nonmoving party has not
`objected to Opposer’s Motion on the ground that it is based on an
`
`3 For example, Opposer has refused to provide discovery to establish use of its registered trademark in commerce in
`the United States (which is, after all, Opposer’s ostensible basis for opposition).
`
`KL3 2646361 .1
`
`

`
`unpleaded issue, the Board may deem the pleadings to have been
`amended, by agreement of the parties, to allege the matter.
`
`TBMP § 528.07(a).
`
`Because Opposer’s Motion is procedurally improper, Applicant respectfully
`
`refrains from a discussion on the merits of the issues raised therein, so that there is no possibility
`
`that the pleadings could be deemed amended by agreement of the parties. See, e.g., Medtronic,
`
`Inc. v. Pacesetter Sys., Inc., 222 U.S.P.Q. 80, 82 n.3 (TTAB 1984) (construing the pleadings as
`having been amended to include unpleaded issue that had been treated on its merits by both
`
`parties); Interpayment Servs. Ltd. v. Docters & Thiede, 2002 TTAB LEXIS 136, *1 1-12 (TTAB
`
`Jan. 31, 2002); Great Seats, Ltd. v. Great Seats, Inc., 2005 TTAB LEXIS 292, *2 (TTAB July 15,
`
`2005) (copies of unreported cases appended as Exhibit C). Applicant will fully address the
`
`substance of Opposer’s new allegations if and when appropriate.
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, Applicant respectfully requests that the Board deny
`
`Opposer’s Motion for Summary Judgment. In the event that the Board does not deny Opposer’s
`
`Motion, Applicant respectfully requests an extension of time to file and serve a complete
`
`substantive response to Opposer’s Motion for Summary Judgment.
`
`Respectfully submitted,
`
` Dated: March 14, 2008
`
` I rcD. sq.
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`
`New York, NY 10036
`Telephone: (212) 715-9205
`Facsimile: (212) 715-8000
`Email: KLTrademark@kramerlevin.com
`
`KL3 2646361.!
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 14, 2008, a true and correct copy of the foregoing
`
`APPLICANT’S RESPONSE TO OPPOSER’S MOTION FOR SUMMARY JUDGMENT was
`
`served upon counsel for Opposer by depositing a copy thereof in the U.S. Mail, postage prepaid
`
`and addressed as follows:
`
`Stephen H. Eland, Esq.
`Dann, Dorfman, Herrell & Skillman
`
`1601 Market Street, Suite 2400
`Philadelphia, PA 19103-2307
`
`Dated: March 14, 2008
`
`KL3 2646361.]
`
`

`
`Opposition No. 91171694
`Filed by LEO Pharma A/S
`Against U.S. Application Serial No. 76/636,322
`For LEV PHARMA
`
`Filed by Lev Pharmaceuticals, Inc.
`
`EXHIBIT A
`
`KL3 26463571
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Leo Pharma A/S
`
`: Opposition No.
`
`: 2
`
`Appl. No. 76/636,322 (ITU)
`: “LEV PHARMA”
`: Published in 0G
`
`Opposer
`
`v.
`
`: March 7, 2006
`
`Lev Pharmaceuticals, Inc
`
`Applicant
`
`CERTIFICATE OF MAILING
`
`I hereby certify that this correspondence is being electronically filed with
`the Electronic System for Trademark Trials and Appeals at the United States Patent
`and Trademark Office.
`
` July 5, 2006
`
`Date
`
`Christine Edinger
`
`NOTICE OF OPPOSITION
`
`Leo Pharma A/S, a Denmark Joint Stock Company, having a place of
`
`business at lndustriparken 55, DK-2750 Ballerup, Denmark (hereinafter “Opposer” or
`“LEO"), believes that it will be damaged by Application Serial No. 76/636,322, filed April
`18, 2005, seeking registration on the Principal Register of the mark “LEV PHARMA” by
`Lev Pharmaceuticals, Inc. (hereinafter “Applicant”) for the services of research and
`
`development of pharmaceutical products, and published for opposition in the March 7,
`2006, Official Gazette, and Opposer hereby opposes the registration of the “LEV
`
`PHARMA" trademark under Section 13 of the Lanham Act, 15 U.S.C. §1063.
`
`

`
`The grounds for opposition, on information and belief, are as follows:
`
`1.
`
`Applicant, Lev Pharmaceuticals, Inc., seeks to register the mark
`
`"LEV PHARMA” for "research and development of pharmaceutical products” in
`
`International Class 042, as evidenced by the publication of said mark in the Official
`
`Gazette of March 7, 2006.
`
`2.
`
`LEO is the owner of the registered trademark “LEO", U.S.
`
`Trademark Registration No. 1,777,615, registered June 22, 1993. The goods identified
`in the registration are pharmaceutical preparations; namely, antibiotic, antibacterial,
`diuretic, antihypertensive, vitamin, mineral supplement, hormone, anti-inflammatory,
`
`analgesic, anticoagulant, anesthetic, and cytostatic agent preparations.
`
`3.
`
`LED is also the owner of the registered trademark “LEO and
`
`Design", U.S. Trademark Registration No. 1,782,361, registered July 20, 1993. The
`goods identified in the registration are pharmaceutical preparations; namely, antibiotic,
`antibacterial, diuretic, antihypertensive, vitamin, mineral supplement, hormone, anti-
`
`inflammatory, analgesic, anticoagulant, anesthetic, and cytostatic agent preparations.
`
`4.
`
`LEO is a Danish pharmaceutical company which manufactures and
`
`sells a wide range of pharmaceutical products in world market, including the United
`States.
`In addition, LEO has various license agreements with pharmaceutical
`
`companies in the United States to market LEO’s pharmaceutical products.
`
`5.
`
`On information and belief, Applicant has not used the trademark
`
`"LEV PHARMA” in connection with research and development of pharmaceutical
`
`products prior to March 19, 2003, which is the date of first use alleged in AppIicant’s
`
`application, Serial No. 76/636,322.
`
`

`
`6.
`
`Since a date long before the filing of Applicant's Application, Serial
`
`No. 76/636,322, Opposer has used the trade names LE0, LE0 PHARMA and LEO
`
`PHARMACEUTICAL PRODUCTS LTD. A/S, in connection with the marketing of
`
`pharmaceutical products in the United States and internationally, and such use is
`
`currently ongoing.
`
`7.
`
`The use of the names LE0, LE0 PHARMA and LEO
`
`PHARMACEUTICAL PRODUCTS LTD. A/S by Opposer in connection with marketing
`
`of pharmaceutical products has been valid and continuous since a date well in advance
`
`of Applicant's first use data and such use by Opposer has not been abandoned.
`
`8.
`
`The trade names LE0, LE0 PHARMA and LEO
`
`PHARMACEUTICAL PRODUCTS Ltd. A/S are symbolic of extensive goodwill and
`
`recognition generated through substantial effort in use and promotion of these trade
`
`names.
`
`9.
`
`Opposer's registered trademark "LEO and Design" was granted on
`
`Application Serial No. 74/228,851, filed December 6, 1991, with a claim of priority under
`15 U.S.C. 1126 (Lanham Act §44) based on Danish Registration No. VRO2.350985,
`
`dated August 2, 1985.
`
`10.
`
`0pposer's registered trademark "LEO and Design" was granted on
`
`Application Serial No. 74/228,850, filed December 6, 1991, with a claim of priority under
`15 U.S.C. 1126 (Lanham Act §44) based on Danish Registration No. 2615-1984, dated
`
`July 20, 1984.
`
`11.
`
`Opposer has used its registered trademarks "LEO" and "LEO and
`
`Design" and is still using said marks in connection with the marketing of pharmaceutical
`
`products and said use has not been abandoned.
`
`

`
`12.
`
`Opposer's registered trademarks "LEO" and "LEO and Design" are
`
`symbolic of goodwill and recognition built up by Opposer based on considerable time
`
`and effort in use and promotion of those marks.
`
`13.
`
`The trademark "LEV PHARMA” sought to be registered by
`
`Applicant, closely resembles one or more of LEO’s trademarks and trade names “LEO”,
`“LEO PHARMA” and “LEO PHARMACEUTICAL PRODUCTS LTD. A/S” and when
`applied to Applicant's activities, is likely to cause confusion, mistake, and/or deception,
`as proscribed by Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), resulting in
`damage and injury to Opposer, Opposer’s reputation and goodwill and its valuable
`
`trade names, trademarks and business.
`
`Applicant's adoption of the designation "LEV PHARMA" as a
`14.
`trademark is without license or permission of LEO and is likely to deceive persons by
`creating the erroneous impression that Applicant's services are related to Opposer and
`Opposer's goods or are connected in some way with Opposer or Opposers goods, or
`are the same as Opposer's goods, and registration of Applicant's mark increases the
`likelihood of confusion between Opposer, Opposer's goods and Applicant's goods and
`services to the detriment of Opposer and the public, and any faults or imperfections in
`Applicant's services and goods marketed in association with the "LEV PHARMA” mark
`sought to be registered, will reflect adversely on Opposer and Opposer's goodwill and
`reputation and may disparage Opposer's goods unless this Opposition is sustained.
`
`Applicant's mark, by reason of its similarity to Opposer's marks and
`15.
`trade names, will enable Applicant to gain a foothold in Opposers market, by exploiting
`subliminal or subconscious association with Opposer and Opposer's well known marks
`
`and trade names.
`
`

`
`16.
`
`In view of the similarity of App|icant’s service mark “LEV PHARMA”
`
`and LEO's trademarks and trade names “LEO", “LEO PHARMA” and “LEO
`
`HARMACEUTICAL PRODUCTS LTD. A/S", the related nature of the goods and
`
`services of the respective parties, and the similar manner of marketing the same type
`
`goods and services, the mark “LEV PHARMA", which Applicant seeks to register, is
`
`confusingly similar to LEO’s prior-used trademarks and trade names and prior-
`
`registered trademarks and is likely to cause confusion, or to cause mistake or to
`
`deceive actual and/or potential purchasers, resulting in damage to Opposer, Opposer's
`
`reputation and goodwill in its trademarks and trade names.
`
`17.
`
`In view of the above allegations, Opposer is likely to be damaged
`
`by registration of Applicant's mark in that the prima facie effect of such registration will
`
`be in derogation of Opposer's rights in its trademarks and trade names.
`
`WHEREFORE, LEO respectfully requests that Application Serial No.
`
`76/636,322 be rejected, that no registration be issued thereon to Applicant and that this
`
`Opposition be sustained in favor of LE0.
`
`LE0 submits herewith the requisite filing fee of $300.00.
`
`in the event that
`
`a payment is missing or the check is improper in any respect, or the fee calculation is in
`error, the Assistant Commissioner is authorized to charge any underpayment or credit
`any overpayment to the deposit account of the undersigned attorneys, Deposit Account
`
`No. 04-1406.
`
`A duplicate copy of this Notice of Opposition is enclosed herewith.
`
`

`
`Respectfully submitted,
`
`DANN, DORFMAN, HERRELL AND SKILLMAN, P.C.
`Attorneys for Opposer
`
` 7:55 fig
`
`DA E
`STEPHEN H. ELAND, ESQ., (PTO #41,01O
`1601 Market Street, Suite 2400
`Philadelphia, PA 19103-2307
`Telephone: 215.563.4100
`Facsimile: 215.563.4044
`
`

`
`Trademark Trial and Appeal Board Electronic Filing System.
`ESTTA Tracking number:
`ESTTA88359
`
`Filing daiei
`
`07/05/2006
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`um Leopnarma/vs
`Granted to Date
`07/05/2006
`of previous
`extension
`
`Address
`
`Domestic
`
`
`
`Industriparken 55
`Ballerup, DK-2750
`DENMARK
`
`
`Roger W. Herrell
`Attorney for Opposer
`Representative
`
`
`
`Dann, Dorfman, Herrell and Skillman
`1601 Market Street Suite 2400
`
`
`
`
`Philadelphia, PA 19103-2307
`UNITED STATES
`
`docketc|erk@ddhs.com, rherreI|@ddhs.com Phone:215-563-4100
`
`
`Applicant Information
`
`76636322
`07/05/2006
`
`
`
`
`Application No
`Opposition Filing
`Date
`
`Applicant
`
`
`
`
`
`
`
`Publication date
`Opposition
`Period Ends
`
`03/07/2006
`07/05/2006
`
`
`
`
`
`Lev Pharmaceuticals, Inc.
`122 East 42nd Street, Suite 2606
`New York, NY 10168
`UNITED STATES
`
`
`Goods/Services Affected by Opposition
`
`Class 042. First Use: 2003/03/19 First Use In Commerce: 2003/03/19
`All goods and sevices in the class are opposed, namely: Research and development of
`
`pharmaceutical products
`
`Notice of Opposition.pdf( 6 pages )(138890 bytes )
`
`owes/zoos
`
` Roger W. Herrell
`
`

`
`Opposition No. 91171694
`Filed by LEO Pharma A/S
`Against U.S. Application Serial No. 76/636,322
`For LEV PHARMA
`
`Filed by Lev Pharmaceuticals, Inc.
`
`EXHIBIT B1
`
`KL3 2646357. I
`
`

`
`Klein, Erica
`
`From:
`Sent:
`To:
`Subject:
`
`Dear Stephen:
`
`Klein, Erica
`Wednesday, January 30, 2008 2:20 PM
`‘Stephen EIand'
`LEO/Lev Pharma Opposition Matters
`
`«-
`
`As you know, the discovery period in the LEO vs. Lev Pharma opposition proceeding is set to close on February 20, 2008.
`To date, we have not received any additional discovery materials from LEO since its initial disclosures.
`In that regard, on
`December 4, 2007, the Board ordered LEO to provide more complete responses to Lev Pharma's written discovery
`requests. Almost two (2) months have passed since the Board's order, and no supplemental responses have been
`forthcoming. Please provide the supplemental responses by the end of this week, so that Lev Pharma can have an
`opportunity to consider whether additional discovery will be required in advance of the February 20, 2008 deadline.
`
`Additionally, on January 4, 2008, we provided you with a written proposal for coexistence as a basis for settlement. The
`terms had been discussed with you by phone several weeks earlier; confirmation in writing was transmitted after the
`holiday season, during which we understood from you that LEO would be unavailable. We believe that the terms proposed
`in our January 4, 2008 proposal are more than reasonable under the circumstances. Please let us know if your client
`agrees to these terms so that we may prepare a more formal agreement.
`
`We look forward to your response.
`
`Best regards,
`Erica
`
`

`
`Opposition No. 91171694
`Filed by LEO Pharma A/S
`Against U.S. Application Serial No. 76/636,322
`For LEV PHARMA
`
`Filed by Lev Pharmaceuticals, Inc.
`
`EXHIBIT B2
`
`KL3 2646357.l
`
`

`
`LEO/Lev Pharma Opposition Matters
`
`Page 1 of 2
`
`Klein, Erica
`
`From:
`
`Stephen Eland [seland@ddhs.com]
`
`Sent: Wednesday, January 30, 2008 3:08 PM
`
`To:
`
`Klein, Erica
`
`Subject: RE: LEO/Lev Pharma Opposition Matters
`
`Erica,
`
`it was my understanding from our conversation last month that we were postponing the outstanding discovery
`issues while we tried to negotiate settlement.
`I expect to have a response to your last proposal by the middle
`of next week.
`
`Stephen
`
`From: Klein, Erica [mai|to:EK|ein@KRAMERLEVIN.com]
`Sent: Wednesday, January 30, 2008 2:20 PM
`To: Stephen Eland
`Subject: LEO/Lev Pharma Opposition Matters
`
`Dear Stephen:
`
`As you know, the discovery period in the LEO vs. Lev Pharma opposition proceeding is set to close on February 20,
`2008. To date, we have not received any additional discovery materials from LEO since its initial disclosures.
`In that
`regard, on December 4, 2007, the Board ordered LEO to provide more complete responses to Lev Pharma's written
`discovery requests. Almost two (2) months have passed since the Board's order, and no supplemental responses have
`been forthcoming. Please provide the supplemental responses by the end of this week, so that Lev Pharma can have an
`opportunity to consider whether additional discovery will be required in advance of the February 20, 2008 deadline.
`
`Additionally, on January 4, 2008, we provided you with a written proposal for coexistence as a basis for settlement. The
`terms had been discussed with you by phone several weeks earlier; confirmation in writing was transmitted after the
`holiday season, during which we understood from you that LEO would be unavailable. We believe that the terms
`proposed in our January 4, 2008 proposal are more than reasonable under the circumstances. Please let us know if your
`client agrees to these terms so that we may prepare a more formal agreement.
`
`We look fon/vard to your response.
`
`Best regards,
`Erica
`
`Erica D. Klein
`
`Associate
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, New York 10036
`Tel: 212-715-9205
`Fax: 212-715-8000
`Email: EK|ein@KRAMERLEVIN.com
`
`3/12/2008
`
`

`
`LEO/Lev Pharma Opposition Matters
`
`Page 2 of 2
`
`http:[[www.kramer|evin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have
`received this communication in error, please immediately notify the sender by return e—mail message and delete all copies of the original
`communication. Thank you for your cooperation.
`
`3/12/2008
`
`

`
`Opposition No. 91 171694
`Filed by LEO Pharma A/S
`Against U.S. Application Serial No. 76/636,322
`For LEV PHARMA
`
`Filed by Lev Pharmaceuticals, Inc.
`
`EXHIBIT B3
`
`KL] 2646357.l
`
`

`
`Message
`
`Page 1 of 2
`
`Klein, Erica
`
`From:
`
`Klein, Erica
`
`Sent:
`
`Thursday, February 07, 2008 12:05 PM
`
`To:
`
`‘Stephen Eland’
`
`Subject: LEO/Lev Pharma Opposition Matters
`
`Dear Stephen,
`
`We have not yet received your response to our email of last Friday (copy below), or your input on the settlement
`proposal as suggested in your email of January 30th.
`in view of the imminence of the current discovery deadline
`(February 20th), we look fonivard to your early response.
`
`Best regards,
`Erica
`
`----—Origina| Message-----
`From: Klein, Erica
`Sent: Friday, February 01, 2008 8:05 PM
`To: ‘Stephen Eland‘
`Subject: RE: LEO/Lev Pharma Opposition Matters
`
`Stephen,
`
`I've been tied up in client meetings this week and only now have the opportunity to respond to your email below.
`
`To your point about discovery, we have deferred propounding any new requests so as to allow the parties to devote
`themselves as much as possible to amicably resolving things in a mutually beneficial matter.
`In that regard, we look
`forward to receiving your comments concerning settlement within the next week. However, we would never presume, nor
`have we the power, to countermand an Order of the Board. While we are fully committed to discussing settlement of this
`matter, LEO cannot be relieved of discovery obligations imposed by the TTAB (we have never condoned postponing
`compliance with the Order).
`It has been over two (2) months since the Order issued, and we are now running up against
`the close of discovery. Accordingly, it is appropriate that LEO provide written responses to the outstanding discovery
`requests by the end of next week, with responsive documents provided on a rolling basis over the next week or two.
`
`We look forward to hearing from you.
`
`Best regards,
`Erica
`
`-----Original Message-----
`From: Stephen Eland [mailto:seland@ddhs.com]
`Sent: Wednesday, January 30, 2008 3:08 PM
`To: Klein, Erica
`Subject: RE: LEO/Lev Pharma Opposition Matters
`
`Erica,
`
`It was my understanding from our conversation last month that we were postponing the outstanding discovery
`issues while we tried to negotiate settlement.
`I expect to have a response to your last proposal by the middle
`of next week.
`
`Filfifkiean, E?E§[B};aito:EKie:n@i@§iEEfeVfi2}In§iWWWWWWWWWMWMMMMSMfffffSWWMM“““““““““““““'WSWWWWSSSSSW
`
`3/12/2008
`
`

`
`Message
`
`Page 2 of 2
`
`Sent: Wednesday, January 30, 2008 2:20 PM
`To: Stephen Eland
`Subject: LEO/Lev Pharma Opposition Matters
`
`Dear Stephen:
`
`As you know, the discovery period in the LEO vs. Lev Pharma opposition proceeding is set to close on February 20,
`2008. To date, we have not received any additional discovery materials from LEO since its initial disclosures.
`in that
`regard, on December 4, 2007, the Board ordered LEO to provide more complete responses to Lev Pharma's written
`discovery requests. Almost two (2) months have passed since the Board's order, and no supplemental responses have
`been forthcoming. Please provide the supplemental responses by the end of this week, so that Lev Pharma can have an
`opportunity to consider whether additional discovery will be required in advance of the February 20, 2008 deadline.
`
`Additionally, on January 4, 2008, we provided you with a written proposal for coexistence as a basis for settlement. The
`terms had been discussed with you by phone several weeks earlier; confirmation in writing was transmitted after the
`holiday season, during which we understood from you that LEO would be unavailable. We believe that the terms
`proposed in our January 4, 2008 proposal are more than reasonable under the circumstances. Please let us know if your
`client agrees to these terms so that we may prepare a more formal agreement.
`
`We look forward to your response.
`
`Best regards,
`Erica
`
`Erica D. Klein
`
`Associate
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, New York 10036
`Tel: 212-715-9205
`Fax: 212-715-8000
`Email: EKlein@KRAMERLEVIN.com
`.|evin.com
`h_tl;r2..:./.[w_mv_-.l<..r.
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have
`received this communication in error, please immediately notify the sender by return e—mail message and delete all copies of the original
`communication. Thank you for your cooperation.
`
`3/12/2008
`
`

`
`Opposition No. 91 171694
`Filed by LEO Pharma A/S
`Against U.S. Application Serial No. 76/636,322
`For LEV PHARMA
`
`Filed by Lev Pharmaceuticals, Inc.
`
`EXHIBIT C
`
`KL3 26463 57,1
`
`

`
`Page 1
`
`LEXSEE 2002 TTAB LEXIS 136
`
`Interpayment Services Limited v. Docters & Thiede
`
`Opposition No. 119,852
`
`Trademark Trial and Appeal Board
`
`2002 TTAB LEXIS 136
`
`January 31, 2002, Decided
`
`JUDGES:
`
`[*1]
`
`Before Cissel, Wendel, and Rogers, Administrative Trademark Judges.
`
`OPINION:
`
`By the Board:
`
`On August 9, 2000, Interpayment Services Limited filed a Notice of Opposition to registration of the mark set forth
`in Application Serial No. 75/671, 927 nl on the grounds that (i) applicant's proposed mark, when used in connection
`with financial goods and services, so resembles opposer's previously used and registered design mark for banking ser-
`vices (Registration No. 1,666,064 n2) as to be likely to cause confusion, mistake or deception; and (ii) applicant's pro-
`posed mark is identical or substantially similar to the symbol adopted by the European Union for the euro, the new
`common European currency, and thus is incapable of acting as a trademark. The designs at issue in this case are repro-
`duced below:
`
`(euro $ )
`Euro symbol n3
`
`(euro $ )
`App. Serial No.
`75/671,927
`
`(euro $)
`Reg. No.
`1,666,064
`
`nl Application Serial No. 75/671, 927 was filed on March 30, 1999 under Trademark Act Section 1(b)
`based on applicant's assertion of a bonafide intention to use the mark in commerce in connection with:
`
`Computer software for use in on-line financial transactions; computer hardware and software that disperses
`and creates digital cash; magnetically encoded credit and debit cards (Int. Cl. 9).
`
`Art prints and publications, namely magazines in the field of finance (Int. Cl. 16).
`
`On-line financial transaction services, namely electronic cash transactions, electronic credit card transac-
`tions, and electronic debit transactions (Int. Cl. 36).
`
`[*2]
`
`n2 Registration No. 1,666,064 issued November 26, 1991 for "banking services, namely, issuance, collec-
`tion, administration, and processing of travelers cheques, international money orders, negotiable bank drafts,
`checks, wire transfers, lines of credit" (Int. Cl. 36).
`
`n3 In the general information provided to the public regarding its new currency ("EURO ESSENTIALS"),
`the European Union defines and provides examples of the graphic symbol for the euro. The image shown above
`was copied by the Board from the European Union's website at http://europa.eu.int/euro/html.
`
`On August 13, 2001, opposer filed a motion seeking summary judgment on the grounds that applicant's proposed
`mark, because of its similarities to