TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`L2H Speaking of Safety, Inc.
`
`Opposer
`
`V.
`
`Liberty Mutual Insurance Company
`
`Applicant
`
`\/x4‘/\/\/\/\-’\z¢
`
`Mark: THE ARCHITECTURE OF
`
`SAFETY EXCELLENCE
`
`Ser. No.
`
`78/217042
`
`Opposition No. 91172334
`
`OPPOSERS RESPONSE TO APPLICANT’S MOTION FOR JUDGMENT FOR
`
`FAILURE TO TAKE TESTIMONY AND OFFER EVIDENCE
`
`Opposer, L2H Speaking of Safety, Inc. hereby responds to Applicant’s (Liberty Mutual
`
`Insurance Company) April 15, 2008 Motion for Judgment for Failure to Take Testimony
`
`and Offer Evidence as follows:
`
`1. Opposer contends that Applicant’s April 15, 2008 Motion to Dismiss is premature
`
`and irrelevant as Opposer in fact completed development and preparation of
`
`documentary evidence within its allocated time frame, and submitted same (attached)
`
`to Applicant and the USPTO TTAB on April 18, 2008, well within the 30-day time
`
`limit specified by Trademark Rule 2.125
`
`2. WHEREFORE, due to the circumstances and proper timing cited, and for the
`
`foregoing reasons, Opposer respectfully requests that the Board accept Opposer’s
`
`documentary evidence as timely, deny Applicant’s motion, and allow the proceedings
`
`to continue.
`
`Illllllllllllllllllllllllllllllillllllllllllllllll
`
`04-22-2008
`
`U.S. Patent &TM0lcITM Mail Rcpl D1. #934
`
`

`
`Dated: April 18, 2008
`
`L2H Speaking of Safety, Inc.
`11 High Banks Drive
`Fulton, New York 13069
`
`Respectfully submitted,
`Lawrence L. Hansen, CSP, ARM President
`
`n/m%w
`
`

`
`PROOF OF SERVICE STATEMENT
`
`I hereby declare that the attached Opposer’s Response to Applicant’s Motion for
`Judgment for Failure to Take Testimony and Offer Evidence was served on Applicant at
`the address below by U. S. First Class Mail on this 18th day of April 2008.
`
`John C. Filosa
`
`Paula J. Krasny
`Baker & McKenzie
`
`130 East Randolph Drive
`One Prudential Plaza
`
`Chicago, ILL 60601
`
`By Lawrence L. Hansen, President
`L2H Speaking of Safety, Inc.
`
`/wflw /
`
`Date: April 18, 2008
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`L2H Speaking of Safety, Inc.
`
`Opposer
`
`V.
`
`Liberty Mutual Insurance Company
`
`Applicant
`
`\—/\/\’\./\./\/¥’\./\/
`
`Mark: THE ARCHITECTURE OF
`
`SAFETY EXCELLENCE
`
`Ser. No.
`
`78/217042
`
`Opposition No. 91 172334
`
`OPPOSERS SUBMITTAL OF TESTIMONY
`
`Pursuant to Federal Rules of Civil Procedure and 37 C. F. R. Part 2 Rules of Practice in
`
`Trademark Cases, Opposer, L2H Speaking of Safety, Inc. hereby submits the following
`
`Testimony and Notices of Reliance on matters of evidence establishing Opposer’s First
`
`Use’ and ‘First Use in Commerce’ of the mark ‘THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE’, evidence confirming ’Confusion in a Shared Marketplace’, and
`
`evidence that Applicant’s mark fails to meet ‘Criteria for Trademark’ to Applicant,
`
`Liberty Mutual Insurance Company.
`
`TESTIMONY
`
`Opposer offers the following testimony from individuals in professional capacity, and
`
`evidences in form of Notices of Reliance establishing Opposer’s ‘First Use’ and ‘First
`
`Use in Commerce’ of the mark ‘THE ARCHITECTURE OF SAFETY EXCELLENCE’
`
`as early as May 25, 1994, prior to Applicant’s claimed ‘First Use’ in April, 00,2002 as
`
`originally filed, and subsequently as amended to June 23, 1999, evidence confirming
`
`confusion in a shared marketplace, and evidence establishing that Applicant’s use of the
`
`

`
`mark in support of its insurance operations fails to satisfy the ‘Criteria for Trademark’ set
`
`forth in USPTO Trademark Manual of Examining Procedure (TMEP) Sections 1301.01,
`
`l30l.O1(a), and 1301.01(a)(ii).
`
`EVIDENCE OF OPPOSER’S FIRST USE
`
`EXHIBIT #1 AFFIDAVIT OF DAVID S. THELEN, Executive Director (retired) of
`
`The Minerva Education Institute (TMEI) and Minerva International, Inc., confirming
`
`Opposer’s use of the phrase ‘THE ARCHITECTURE OF SAFETY EXCELLENCE’ in a
`
`presentation at a national safety conference hosted by the Minerva International, Inc.
`
`organization in Scottsdale Arizona in May (25 -27) 1994.
`
`EXHIBIT #2 AFFIDAVIT OF WAYNE L. SALEN - Corporate Director of Risk
`
`Management for Labor Finders International, Inc., confirming use of the phrase ‘THE
`
`ARCHITECTURE OF SAFETY EXCELLENCE’ in a presentation to the Upstate New
`
`York Chapter of the Risk and Insurance Management Society (RIMS) in Canandaigua,
`
`New York in March, 1995.
`
`EXHIBIT #3 AFFIDAVIT OF DONALD J. ECKENFELDER — Principal of Social
`
`Operating Systems Ltd., confirming use of the phrase ‘THE ARCHITECTURE OF
`
`SAFETY EXCELLENCE’ in a shared presentation to the ASSE Central New York
`
`Safety Conference in Syracuse, New York in April 1995.
`
`EXHIBIT #4 AFFIDAVIT OF HAL D. LARSON — President of the Quad Cities
`
`Chapter of the Risk and Insurance Management Society, confirming a presentation on
`
`

`
`‘THE ARCHITECTURE OF SAFETY EXCELLENCE’ to Chapter membership in
`
`February 1999.
`
`EXHIBIT #5 NOTICE OF RELIANCE (Evidence relevant to Opposer’s ‘Date of First
`
`Use’).
`
`Copy of executed Copyright Agreement between Opposer, Larry L. Hansen and Susan
`
`Trebswetter, Editor of Professional Safety magazine, DATED JUNE 9,1999 accepting
`
`publication of a manuscript exactly titled: “THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE’, prior to Applicant’s claimed ‘first use’ date(s) of April 00,2002 and
`
`June 23, 1999.
`
`EVIDENCES OF CONFUSION IN A SHARED MARKETPLACE
`
`EXHIBIT #6 NOTICE OF RELIANCE (Evidence relevant to ‘Likelihood of
`
`Confusion in a Shared Market’).
`
`Copy of pages #1, # 14, and #26, through #30 from the USPTO Lesis - Nexis Search &
`
`Evidence List 78217042 conducted on April 17, 2004 and on record in this USPTO file
`
`identifying (twice) Opposer’s titled work ‘THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE’.
`
`EXHIBIT #7 NOTICE OF RELIANCE (Evidence relevant to ‘Likelihood of
`
`Confusion in a Shared Market’).
`
`

`
`Copy of ‘Page 1’ of a GOOGLE web browser search of the phrase ‘ARCHITECTURE
`
`OF SAFETY EXCELLENCE’ conducted on March 23, 2008 identifying Opposer’s
`
`predominant marketplace association with this mark.
`
`EXHIBIT #8 NOTICE OF RELIANCE (Evidence relevant to ‘Likelihood of
`
`Confusion in a Shared Market’).
`
`Copy of the 2007 Best Practice Literature Search findings conducted by the United States
`
`Office of Inspector General (OIG) under directive from the Secretary of Defense, U.S.
`
`Department of Defense (DoD), published by the National Safety Council citing the L2H
`
`Speaking of Safety, Inc. ‘ARCHITECTURE OF SAFETY EXCELLENCE’ safety
`
`management system.
`
`EXHIBIT #9 NOTICE OF RELIANCE (Evidence relevant to ‘Likelihood of
`
`Confusion in a Shared Market’).
`
`Copy of a May 2000 Spanish translation of Opposer’s work: ‘ARQUITECTURA DE
`
`LA EXCELENCIA EN SEGURIDAD’ (THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE) from a reader in the country of Columbia establishing Opposer’s
`
`international recognition and association with this mark.
`
`EXHIBIT #10 NOTICE OF RELIANCE (Evidence relevant to ‘Likelihood of
`
`Confusion in a Shared Market’).
`
`Copy of Australia’s Safe At Work (SAW) magazine article entitled: ‘The Real
`
`Drivers of Safety’ citing Opposer’s work ‘THE ARCHICETURE OF SAFETY
`
`EXCELLENCE’ establishing Opposer’s international recognition and association
`
`

`
`with the mark.
`
`EVIDENCE OF OPPOSER’S ‘FIRST USE IN COMMERCE’
`
`EXHIBIT # 11 AFFIDAVIT OF PAUL D. ALBEE, Systems Engineer and Partner of
`
`ATServices of Central New York, Inc. web site developer and Webmaster of the L2H
`
`Speaking of Safety, Inc. web site confirming development, launch and continuous
`
`oversight of the L2H Speaking of Safety, Inc. web site offering ‘ For Fee’ Organizational
`
`Learning Services including seminars entitled ‘THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE’, in October 2001, six months prior to Applicant’s originally filed (April
`
`2002) application and Specimen confirming use as a Loss Prevention service in support
`
`of its commercial insurance operations, and 5 years prior to Appli.cant’s ‘For Fee’ sale of
`
`such services under the name of Liberty Mutual Safety Solutions created in November
`
`2006.
`
`EXHIBIT # 12 NOTICE OF RELIANCE (Evidence relevant to Opposer’s ‘First Use
`
`in Commerce’)
`
`Copy of a ‘Technical Data Screen Grab’ from the L2H Speaking of Safety, Inc. web site
`
`establishing the October 2001 launch and continuous sale of ‘For Fee’ services entitled:
`
`‘THE ARCHITECTURE OF SAFETY EXCELLENCE’.
`
`

`
`EXHIBIT # 13 NOTICE OF RELIANCE (Evidence relevant to Opposer’s ‘First Use
`
`in Commerce’).
`
`Copy of the Liberty Mutual web site page entitled: ‘Liberty in the News’ posted
`
`November 2, 2006 announcing creation of Liberty Mutual Safety Solutions, a ‘For Fee’
`
`consulting unit to market safety services identified as ‘THE ARCHITECTURE OF
`
`SAFETY EXCELLENCE’, five years after ‘ARCHITECTURE OF SAFETY
`
`EXCELLENCE’ services were marketed by Opposer on its L2H Speaking of Safety, Inc.
`
`web site in October 2001.
`
`EVIDENCES OF APPLICANT’S MARK FAILING TO MEET CRITERIA FOR
`
`TRADEMARK
`
`EXHIBIT # 14 NOTICE OF RELIANCE - (Evidence relevant to Applicant’s mark
`
`failing to meet ‘Criteria for Trademark’)
`
`Copy of Applicant’s October 2004 brochure entitled ‘THE ARCHITECTURE OF
`
`SAFETY EXCELLENCE’ containing (back page) disclaimer identifying this material as
`
`‘advertising for its insurance operations’, and specifically directing readers to the ‘Terms
`
`and Conditions’ of their insurance contract as follows:
`
`“This brochure isfor marketing purposes only and is not a contract. It provides
`
`a general description of these programs. Only your policy or contract can give
`
`actual terms, conditions and exclusions. ”
`
`

`
`EXHIBIT # 15A & 15B NOTICES OF RELIANCE — (Evidences relevant to
`
`Applicant’s mark failing to meet ‘Criteria for Trademark)
`
`EXHIBIT 15A - Copy of published article:
`
`“Insurers' Potential Liability to Third Parties for Negligent Inspections”
`
`© Thomas M. Bower 1994
`
`EXHIBIT 15B - Copy of published article:
`“Inspection by Insurer is Valuable but Doesn't Constitute a Warranty”
`
`Rough Notes, Jan 2003 by McCormick Roy C
`
`Articles summarizing ‘Negligent Inspection Case Law’, and identifying the rational for
`
`and common practice of Commercial Insurance Carriers protecting themselves against
`
`Negligent Inspection lawsuits through inclusion of ‘disclaimer clauses’ (Applicant’s
`
`cited below) in Insurance Policy Declarations specifically identifying Loss Prevention
`
`services provided under their insurance contracts as activities undertaken primarily for
`
`the benefit of the insurer,_(i.e., underwriting standards, risk selection, and pricing
`
`decisions, etc.).
`
`APPLICANT ’S WORKERS COMPENSA TION POLICY CLA USE
`
`TERMS AND CONDITIONS
`
`Part Six — Conditions
`
`A. Inspection
`We have the right, but are not obliged to inspect your workplaces at any time.
`Our inspections are not safety inspections. They relate only to the insurability of
`the workplaces and the premiums to be charged. We may give you reports on the
`conditions we find We may also recommend changes. While they may help reduce
`losses, we do not undertake to perform the duty ofany person to provide for the
`health or safety ofyour employees or the public. We do not warrant that your
`workplaces are safe, healthful or that they comply with laws, regulations, codes
`or standards. Insurance rate service organizations have the same rights we have
`under this provision.
`
`

`
`EXHIBIT # 16 NOTICE OF RELIANCE - (Evidenced relevant to Applicant’s mark
`
`failing to meet ‘Criteria for Trademark’).
`
`Copies of pages from the USPTO Trademark Manual of Examining Procedure (TMEP)
`
`citing Section 1301.01 — ‘What is a Service’; Section 1301 .0l(a) — ‘Criteria for
`
`Determining What Constitutes a Service’; and Section 1301 .0l(a)(ii) — ‘For the Benefit
`
`of Others’.
`
`These sections establish that a service to qualify for trademark must be a service designed
`
`primarily for the benefit of others, and not a service that provides benefit primarily for the
`
`benefit of applicant offering the service.
`
`In that Applicant’s ‘ARCHITECTURE OF SAFETY EXCELLENCE’ services are
`
`advertised and claimed as Loss Prevention services in support of its commercial
`
`insurance operations, and specifically provided for the primary benefit of the Applicant’s
`
`(insurer’s) own self-interest, they fail to meet the Criteria for Trademark established
`
`under USPTO sections cited above.
`
`SUMMARY
`
`Given to the above, Opposer affirms its claim of intellectual property rights, and
`
`entitlement to the mark ‘THE ARCHITECTURE OF SAFETY EXCELLENCE’ by
`
`evidence of its ‘First Use’ of the mark as early as May 1994, in advance of Applicant’s
`
`claimed first use on June 23, 1999; Opposer’s ‘First Use in Commerce’ in October, 2001,
`
`five years prior to Applicant’s offering a non-insurance ‘For Fee’ service under the name
`
`of Liberty Mutual Safety Solutions in November 2006; also due to confirmed confusion
`
`

`
`in the marketplace created by exact same wording of the marks, and further to
`
`App1icant’s mark failing to meet the ‘Criteria of Trademark’ requirement of ‘For the
`
`Primary Benefit of Others’ due to its ‘non-qualifying’ use as an insurance Loss
`
`Prevention service conducted primarily for the benefit of its own commercial insurance
`
`interests, thereby failing to satisfy the requirements established under ‘Criteria for
`
`Trademark’ Sections 1301.01, 1301.01(a), and l301.01(a)(ii) of the Trademark Manual
`
`of Examining Procedure (TMEP).
`
`Respectfully submitted,
`
`,,§&,4g_.~__\
`
`Lawrence L. Hansen, CSP, ARM President
`L2H Speaking of Safety, Inc.
`
`Date: April 18, 2008
`
`

`
`PROOF OF SERVICE STATEMENT
`
`I hereby declare that the attached Opposer’s Submittal of Testimony to Applicant was
`served on Applicant at the address below by U. S. first Class Mail on this 18th day of
`April, 2008.
`
`John C. Filosa
`
`Baker & McKenzie
`
`130 East Randolph Drive
`One Prudential Plaza
`
`Chicago, ILL 60601
`
`By Lawrence L. Hansen, President
`
`L2H Speaking of Safety, Inc.
`
`Date: 1 ’”/J/-"d f
`
`

`
`Exhibit #1
`
`/«"7 /Uc/éy
`State of
`County of fig £49
`
`AFFIDAVIT BEFORE NOTARY
`
`BEFORE
`
`, the undersi
`‘
`
`d ota
`
`this
`affidavit is sworn],
`[month], 20 personally appeared
`[name of affiant], known to me
`'
`to be a credible person and of lawful age, who being by me first duly sworn, on é /5
`[his or
`her] oath, deposes and says:
`
`[name f Notary before whom
`ay of month] day of
`
`My name is David Thelen and I currently reside at 9 Geisen Avenue, Lakeside Park, Kentucky
`41017.
`
`I am the Executive Director (retired), of The Minerva Educational Institute (TMEI), domiciled within the
`Xavier University School of Business, and its successor organization Minerva International, Inc. Both of
`these organizations were chartered with the mission of introducing safety and health education into our
`nation’s business schools and executive suites to ‘sensitize’ business leaders concerning the value
`contribution of safety and health to American management process and business results.
`
`In 1993 as Director of TMEI, I invited Mr. Larry Hansen to join the Board of Directors of the Minerva
`Education Institute due to his perspectives and writings on safety management in the business process. Mr.
`Hansen's employer (Wausau Insurance Co.) was contacted concerning TMEI sponsorship, and confirmed
`no interest in supporting the Institute, due to other existing sponsorships. Mr. Hansen independently
`accepted the appointment and served on the TMEI Board of Directors from 1994 until the lnstitute's
`dissolution in 1997.
`
`In May (25 — 27) of 1994, Minerva International sponsored a national EHS conference entitled: “Managing
`the Work Environment in the 21*‘ Century” at the Wyndham Paradise Conference Center in Scottsdale,
`Arizona. This conference was attended by over 200 representatives of Industry and Academia. At this
`conference, Mr. Hansen gave a keynote presentation introducing the ‘Architecture of Safety Excellence’ a
`strategic step-change model developed by him identifying and linking the multiple strategies that lead an
`organization to safety excellence perfonnance.
`
`[set forth affiant's statement of facts]
`
`/<
`
`[signature of affiant]
`CDMg/ J‘. fleet:
`[typed name of affiant]
`E £6/keg Eu 1;
`[address of affiant, line 1]
`
`«[3 games Pg flkag
`
`[address of affiant, line 2]
`
`fig/2
`
`

`
`Subscribed and sworn to before me, this 2 4+“
`[month], 20 02 .
`
`[day of month] day of
`
`‘V\Ok‘FC‘.\(\
`
`K‘ [Notary SeaI:]‘
`
`[signature ofEtaryj
`A “
`[typed n
`e of Notary]
`
`NOTARY PUBLIC
`
`/L..\\"\’
`
`My commission expires:
`
`\s0~\r\. 2-3 , 20 \Z
`
`

`
`Exhibit #2
`
`State of Florida
`
`County of Palm Beach
`
`AFFIDAVIT BEFORE NOTARY
`
`BEFORE ME, the undersigned Notary,
`/
`.
`'
`[name of Notary before whom
`affidaviti sworn], on this
`1
`[day of month] day of /77422 5
`[month], 20 Q1 , personally appeared édgag 4 . Qka
`le person and of lawful age, who being by me first
`[name of affiant], known to me to be a credi
`duly sworn, on 4 [g
`[his or her] oath, deposes and says:
`
`My name is Wayne Salen, and I am currently the Corporate Director of Risk Management
`for Labor Finders International, Inc. a staffing services firm headquartered at 11426 North
`Jog Road, Palm Beach Gardens, Florida 33418. Prior to my relocation to Florida, I lived in
`Western New York and held positions as Corporate Risk Manager for a food distribution
`company, Director of Risk Management for a multi-state Nursing Home organization, and
`as Risk & Insurance Manager for the County of Niagara. Due to my interests and
`background in both safety and risk management, I also was an active member and officer
`of the Upstate New York Chapter of the Risk and Insurance Management Society, Inc.
`(RIMS). One of my duties as a Chapter Officer was to arrange for speakers on material
`relevant to our membership. Due to Larry Hansen’s writings in Professional Safety
`magazine, I invited him to speak on safety management at our March 1995 Chapter
`meeting held the third Tuesday of that month at the Quality Inn in Canandaigua, New York.
`This meeting was attended by 40+I- Risk, Insurance and Safety managers representing
`companies located in the Western & Central New York area. Mr. Hansen gave a
`presentation on a step-change safety management model he had developed called the
`‘Architecture of Safety Excellence’. This session helped participant’s recognize the
`multiple operational and organizational strategies that must be employed for an
`organi
`‘on to move from the SWAMP (Safety Without Any Management Process) up to
`Wor
`-Clas
`(Safety as
`value system) to achieve peak performance.
`{ a ant 's stat ment offacts
`
`
`
`Wayne L. Salen
`405 SW Sa inaw Avenue Port St. Lucie Florida 34953
`
`Subscribe? and sworn to before me, this
`
`[month], 202,2.
`
`[day ofmonth]day of
`
`[Nota
`
`SeaI:]
`
`
`Z2
`1
`
`eof Notary]
`
`[typedn
`
`NOTARY PUBLIC
`
`My commission expires:
`
`[/22
`
`, 20 (2 .
`
`:
`
`I
`
`MARILYN L. WILSON
`§
`¢.....‘-.;.,,,,’
`Commit 000503715
`§
`g
`E §“§'$ I’
`Expires 1/3/2010
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`Bonded l\ru(B00)432-42545
`Inc 3
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`a....”.':-:-:-:‘:‘.“..... .fJ.°.':?:*.:t?:e:x:§§:a......:
`
`

`
`EXHIBIT“
`
`AFFIDAVIT BEFORE NOTARY
`
`State of New York
`
`County of Warren
`
`BEFORE ME, the undersigned Notary, Mary E. West, on this 12th day of March, 2008, personally
`appeared Donald J. Eckenfelder, known to me to be a credible person and of lawful age, who being by
`me first duly sworn, on his oath, deposes and says:
`
`I am the principal of Social Operating Systems Ltd., an international
`My name is Donald J. Eckenfelder.
`culture measurement and management firm located at Post Office Box 499, Glens Falls, New York
`12801.
`
`I am also the principal of Profit Protection Consultants, a safety and health consulting company. While
`pursuing this practice, I had numerous experiences that caused me recognize the power that an
`organization's culture (beliefs and values) had on shaping its operational outcomes called accidents,
`injuries and loss costs. Due to articles I had written on culture and its impact on safety, Larry Hansen,
`asked if I would speak with him at an American Society of Safety Engineers Professional Development
`Conference at the Drumlins Country Club in Syracuse, New York in April of 1995. Approximately 200
`Safety and Operations managers in the Central New York area attended this conference.
`
`Mr. Hansen and I provided a two-part presentation at this conference. Mr. Hansen opened with a
`presentation on a step-change safety management model he had developed called the ‘Architecture of
`Safety Excellence’ that identified the multiple strategies an organization needed to develop and employ to
`move safety out of the SWAMP (Safety Without Any Management Process) through the NORM (Naturally
`Occurring Reactionary Management) in which safety is a program comprised of operational strategies
`(Education, Engineering and Enforcement) to World-Class wherein safety becomes a ‘belief system
`based on Values, Leadership and Organization’.
`I followed Mr. Hansen's presentation with a
`complimentary session identifying how an organization’s value system forges its culture which either
`empowers or compromises its safety performance and loss outcomes.
`
`From this initial meeting to present, our philosophies on safety excellence and organizational culture have
`evolved in very complimentary ways. When Mr. Hansen further evolved his ‘Architecture of Safety
`Excellence’ concept in a Professional Safety magazine article of the same name, I requested his
`permission to display that concept in a model I have labeled as ‘The Bridge Metaphor’. This model
`equates the process and key components of Bridge Construction to that of Building a solid Culture for
`Safety
`-- a = ed of both the Operational strategies and Organizational strategies of safety.
`
`
`
` P.O. Box 49
`
`
`lens F
`s, New York 12801 or 24 Fort Amherst Road, Queensbury, New York, 12804
`
`Subscribed and sworn to before me, this 12"‘ day of March 2008.
`
`Mary E.
`est
`NOTARY PUBLIC .
`
`"i ‘:37.-*4“-§~
`
`T’
`
`My commission expires:
`
`9
`
`, zofl.
`
`

`
`EXHIBIT #4
`
`State of Iowa
`County of Muscatine
`
`AFFIDAVIT BEFORE NOTARY
`
`O/Luri 5 6 WW "'
`BEFORE ME, the undersigned Notary,
`[day of month] day of
`[name of Notary before whom affidavit is sworn], on this
`I39‘
`Iflarcg
`[month], 20 03 , personally appeared Hal D. Larson [name of affianfl, known to me
`to be a credible person and of lawful age, who being by me first duly sworn, on b :5
`[his or her] oath,
`deposes and says:
`
`My name is Hal D. Larson, and I am the wee President, Corporate Risk Manager for Muswtine Foods, Inc.
`headquartered at 1600 Oregon Street, Muscatine, Iowa 52761.
`
`As a compliment to my employer responsibilities, I am active in and have held all offices, including President
`of the Quad Cities Chapter of the Risk and Insurance Management Society (RIMS).
`
`One of the duties of a Chapter Officer is to anange for speakers on material perceived valuable to our membership.
`Due to Larry Hanscn’s expertise on safety management, I invited him to speak on his ‘Architecture of Safety
`Excellence’ step-change strategy model at our February 1999 Quad Cities Chapter meeting Thirty plus Risk and
`Insurance professionals attended this dinner meeting from organizations in the Quad Cities area This session
`addressed the multiple operational and organizational strategies that must be employed for an organization to impact
`organizational behavior and achieve safety excellence results.
`[setforth aflianfs statement offacts]
`
`Z4L%
`
`[signature of afliant]
`
`Hal D. Larson, CPCU
`[typed name of affiant]
`
`1600 Oregon Street
`Muscatine, Iowa 52761
`
`lat“
`
`[day of month] day of
`
`mg 5
`WC,
`
`
`
`
`
`
`
`.
`Subscribed and sworn to before me, this
`[month], 20 oi .
`
`”‘’°’a’Y 393*]
`
`CHRIS BROW.”
`‘g\AL 6;‘
`COMMISSION NO. mes?
`§
`7.
`MY COMMISSION EXPIRES
`"
`‘
`
`IowA
`_|u|_v 3 300%’
`
`
`&/\/OL~"'V\—/
`
`[signature of Notary]
`
`BVDLQ ”\
`H ri
`[typed name of Notary]
`
`NOTARY PUBLIC
`
`My commission expires:
`
`.7 [ 3
`
`, 20 0 8.
`
`

`
`NOTICE OF RELIANCE
`
`ISSUE OF RELEVANCE: Evidence establishing Opposer’s ‘First Use’ of the mark
`
`‘ARCHITECTURE OF SAFETY EXC3ELLENCE’ as early as June 9, 1999 prior to
`
`Applicant’s claimed/filed ‘First Use’ date of June 23, 1999.
`
`EXHIBITS # 5 -See attached copy of executed copyright agreement
`
`between Opposer, Larry L. Hansen, and Susan Trebswetter, Editor of Professional
`
`Safety Magazine — Journal of the American Society of Safety Engineers, dated June 9,
`
`1999 accepting for publication a manuscript titled ‘THE ARCHITECTURE OF SAFETY
`
`EXCELLENCE submitted four months earlier for peer review.
`
`This document establishes Opposer’s use of the mark ‘THE ARCHITECTURE
`
`OF SAFETY EXCELENCE’ prior to and on June 9,1999 prior to Applicant's
`
`claimed/filed ‘First Use’ date(s) of April 00, 2002 and June 23, 1999.
`
`

`
`TRANSFER OF COPYRIGHT AGREEMENT
`
`Periodical: Professional Safety ('P.S.'). Official Publication of the
`American Society of Safety Engineers (‘ASSE’)
`
`1/
`
`’
`
`of Article:
`
`.
`Working Title
`.
`Author(s).
`
`'
`
`: ,
`-
`,
`
`L
`’ ‘: C.
`I -
`-
`I442‘ -
`
`4
`
`I F .
`‘” f 1
`
`_
`
`5
`
`y
`
`_ ..‘.’r.__
`
`The undersigned hereby grant(s) and assign(s) exclusively to ASSE all rights of whatsoever kind or nature
`now or hereafter protected by the Copyright Laws of the United States (common or statutory) and all foreign
`countries in all languages in and to the above-named article. including all subsidiary rights. subject to the
`nonexclusive rights reserved by Author(s) in paragraph 2 hereof. Without limiting the generality of the
`foregoing, Author(s) hereby further grant(s) and assign(s) to ASSE the sole and exclusive right to obtain
`registration of the copyright of the article.
`
`The Au.thor(s) reserve(s) the following:
`
`(1) '
`
`(2)
`
`(3)
`
`The nonexclusive right to use all or part of the article in his (her. their) own
`future works. such as lectures. press releases. reviews. text books, or reprint books.
`after the article's first publication in P.S., subject only to his (her. their) giving proper
`credit in such work to the original publication of the article in P.S.
`
`The nonexclusive right to reproduce the work in copies and to grant or refuse
`permission for such reproduction by third parties. subject only to his (her. their)
`causing to be inserted on the first page of each such copy a .p’roper copyright
`notice. consisting of (1) the word ‘Copyright.’ the abbreviation 'Copr..' or the
`copyright symbol (the letter C in a circle). (2) the year of first publication of the work.
`and (3) identification of ASSE as the owner of copyright in the work.
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`The nonexclusive right to permit third parties to republish all or part of the article.
`after the article's lirst publication in P.S.. subject only to such third parties giving
`proper credit to the original publication of the article in P.S.
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`The undersigned hereby warrant(s) that the above-named article contains no matter libelous or otherwise
`unlawful or which invades individual privacy or which infringes any proprietary rights. The undersigned
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`the sole Author(s) and in which he (she. they) is (are) the sole owner of copyright. and that he (she. they)
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`Author's Signat
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`Co-author's Signature‘
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`Date
`
`’
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`Date
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`ACCEPTED AND APPROVED:
`
`American Society of Safety Engineers.
`Publisher
`‘
`4
`
`—___—
`/
`4/‘/77 (-
`Date
`
`
`Co-author's Signature‘
`
`By:
`
`‘if applicable
`(This signed statement must be received by the Editor of P.S. before the manuscript can be Published-)
`
`

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