Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA164061
`ESTTA Tracking number:
`09/20/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173838
`Plaintiff
`EAZYPOWER CORPORATION
`MICHAEL J. CHERSKOV
`CHERSKOV & FLAYNIK
`20 N WACKER DR, SUITE 1447
`CHICAGO, IL 60606
`UNITED STATES
`mail@cherskov.com
`Reply in Support of Motion
`Michael J. Cherskov
`mail@cherskov.com
`/Michael J. Cherskov/
`09/20/2007
`Reply Brief.pdf ( 18 pages )(1060100 bytes )
`Declarations.pdf ( 12 pages )(253469 bytes )
`
`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Serial No.
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`: 78/740036
`
`Opposition No.
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`: 91 173838
`
`Mark
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`: ACHIEVER
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`)
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`) )
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`EAZYPOWER CORP.
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`Opposer,
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`V.
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`HALLIBURTON ENERGY
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`SERVICES, INC.
`
`Applicant
`
`Commissioner for Trademarks
`
`Attention: Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 223 l3— l45 l
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`20. N. Wacker Drive
`
`Chicago, IL 60612
`(3l2) 62l—l330
`
`OPPOSER’S REPLY TO APPLICANT’S RESPONSE TO REQUEST FOR EXTENSION
`OF TIME PERIODS
`
`SIR:
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`Opposer Eazypower Corp., through its counsel, hereby requests that the Board enter the
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`following Reply Brief pursuant to its discretion under 37 CFR 2. l27(a). Applicant is aware of
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`the Board’s instructions in TBMP §502.02(b) and has avoided re—argument of points in the main
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`brief, and instead presents replies to arguments in Applicant’s Response.
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`As a preliminary matter, in its reply Applicant (hereinafter “Halliburton”) complains of
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`the lack of Eazypower Affidavits in the main brief. Eazypower refers to TBMP §509.0l(a)
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`which provides that the motion itself is to state facts with particularity and that no affidavit
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`requirement for routine motions is imposed. Inasmuch as the main brief was signed by
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`Eazypower’s counsel acting on Eazypower’s behalf, Eazypower is bound by the factual
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`allegations made in the brief. Further, Eazypower questions the utility of burdening routine
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -2-
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`briefs with repetitive affidavits. However, Eazypower hereby submits Affidavits in support of its
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`Motion to resolve this point of contention.
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`Halliburton Misstates the Legal Standard Involved
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`Halliburton claims that the Board, in recent years has “started making an effort to tighten
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`up on its good cause standard in support of motions to extend.”1 In support of this, Halliburton
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`cites a litany of cases. Those cases stand for the proposition that the Board will, as it always has,
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`“carefully consider the parties’ arguments and supporting declarations.”2 This standard of review
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`has not recently changed, as Halliburton suggests. Further, Halliburton has cited a case where
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`the Board granted the motion to extend apparently due to nothing more than the “press of other
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`litigation.”3 In other words, Applicant Halliburton has cited a case which supports Opposer
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`Eazypower’s view.
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`Eazypower contends, contrary to Halliburton allegations, that the legal standard for
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`granting its motion remains good cause and that Eazypower has met its burden. Eazypower
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`recognizes that the Board will “carefully scrutinize”4 its motion, as it does any contested motion.
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`Eazypower has Striven to, yet is not Obligated to, Provide Halliburton all Pertinent Reasons for
`the Extension Prior to Filing of Contested Motion
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`Halliburton objects to the fact that in initially seeking a stipulated extension, Eazypower
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`did not disclose the various reasons for extension relied upon in its present motion. Then, the
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`parties then were in more of a settlement frame of mind, compared to now. In attempting to
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`obtain a stipulated extension for settlement purposes, the parties agreed to a 14-day extension
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`(that period was subsequently extended by 6 days in light of the Labor Day Holiday). As noted
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`1 Applicant’s Response, page 3.
`2 Societa Per Azioni Chianti Ruffino Esportazione Vinicola Toscana v. Colli Spolentini Spoletoducale SCRL
`2001 TTAB LEXIS 360 (TTAB 2001).
`3 Id.
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`4 TBMP §509.01.
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -3-
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`supra, Eazypower consented to this initial extension proposal hoping to settle the matter. During
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`this process, Halliburton counsel unquestionably stated that the 20 day extension was the limit to
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`which Halliburton was willing to stipulates When settlement no longer appeared immediate,
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`Opposer Eazypower verbally advised Halliburton counsel that time constraints related to other
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`matters necessitated a Request for more time to which Halliburton counsel stated that his client is
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`likely to oppose. (See Declaration). Halliburton does not point to any case or other law imposing
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`a duty of full prior disclosure on movants proposing contested motions before the Board.
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`Eazypower is Willing to Provide Excerpts of Litigation Schedule
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`Halliburton expressed concern that Eazypower failed to provide detailed schedule of
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`events in Mr. Kozak’s complex patent litigation matters. However, in its Brief, Eazypower
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`provided the case numbers and the courts hearing the cases which would facilitate retrieval of
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`briefing schedules and other documents if such documents were required. Eazypower avoided
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`reciting minutae of its various litigation in its initial motion brief to conserve research. However,
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`to address Halliburton concerns, found below are the events relating to Eazypower’s upcoming
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`litigation duties:
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`In the case being heard in Northern District of Illinois, Eazypower v. Alden, N.D. Il. Civ.
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`Act. No. 03 C 3164, the Court, on September 6, 2007, issued a 28—page Markman claim
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`construction decision. In response to the Court’s decision, Mr. Kozak’s input is required to
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`prepare for possible dispositive motions. Discovery materials are pending full review in this
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`case and Mr. Kozak’s assistance, based upon his knowledge of these materials, is essential.
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`In Eazypower’s patent infringement case, Eazypower v. Jore, N.D. Il. Civ. Act. No. 04 cv
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`06372, both sides are awaiting a Markman claim construction opinion from the Court.
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`5 See attached Affidavit of Mr. Szymon Gurda, who spoke with Halliburton Counsel Mr. Jeffery I. Look.
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -4-
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`Discovery is currently open in the case. Mr. Kozak will be required to assist in the selection and
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`identification of parties and individuals for deposition(s) and to assist in the analysis of discovery
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`materials. It is expected that Eazypower will also have to respond to additional discovery
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`requests from the defendant.
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`In the case heard in the District of Connecticut, in Alden v. Eazypower, Ct. Act. No. 07
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`cv 00711, the parties have completed briefing on a dispositive motion to dismiss for lack of
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`subject matter jurisdiction. A decision is expected in the coming weeks. If the court refuses to
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`dismiss the entirety of the claims, Mr. Kozak will be required to assist in, amongst other things,
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`onerous discovery in a foreign jurisdiction. This case has already been particularly burdensome
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`since Eazypower was hailed a defendant into a foreign jurisdiction.
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`In regards to Eazypower’s professional malpractice case, Case No. 06113659, Eazypower
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`must seek a motion to vacate the earlier judgment which had been the product of the alleged
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`malpractice remaining cases. Preparing the motion to vacate alone involves a thorough review
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`of the entire record of relating to the earlier decision. Mr. Kozak’s cooperation and full attention
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`is absolutely necessary in regards to this review and preparation of the motion. In the main
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`malpractice claims, responses to various dismissal attempts by the malpractice insurance carriers
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`will require Mr. Kozak’s review in the course of the coming weeks and months. In regards to
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`upcoming dispositive motions, Mr. Kozak will have to participate in a review of several years’
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`worth of litigation files and communications Mr. Kozak received from his prior representatives.
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`The burdens imposed on Mr. Kozak by these cases are expected to peak in the coming
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`weeks and months. The level of involvement for Mr. Kozak will decrease as the cases enter
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`phases where legal (as opposed to factual) arguments predominate. Those phases are expected to
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`begin near the end of the calendar year.
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -5-
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`It would be at the very least imprudent for Eazypower to exhaustively describe its
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`litigation efforts in pending matters as part of this, a publicly available reply. However, the
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`above events are representative of the scheduling load faced by Mr. Kozak’s schedule.
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`Eazypower Status and Mr. Kozak’s Age should be Considered by the Board
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`Halliburton recognizes that Mr. Kozak is essentially the only person involved in the
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`decision—making process of Eazypower, but also claims that this is his burden to bear.6
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`Eazypower disagrees. Instead, Eazypower believes that the decision regarding whether good
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`cause has been shown must be made in light of all factors, including Mr. Kozak’s role in
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`Eazypower (as discussed in the original brief), and Mr. Kozak’s age. These are not merely
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`“burdens to bear” but rather important factors that the Board should consider.
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`Mr. Kozak’s Unavailability is Critical in Any Deposition, Not Merely His Own
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`Halliburton suggests that during its testimony period, Eazypower will solely depose Mr.
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`Kozak and that Mr. Kozak would surely be able to find time for his own deposition. As
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`Eazypower is entitled to do, Eazypower intends to depose, agents of Halliburton, and other
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`parties involved in this dispute. For reasons explained in the initial brief, Mr. Kozak’s attention
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`is required for all depositions.
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`Mr. Kozak’s Travel Schedule and Religious Conflicts
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`Halliburton presents a listing of scheduling conflicts in regards to Mr. Kozak’s extremely
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`busy September, October, and November. In pointing this out, Halliburton chose to ignore the
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`fact that these conflicts were explained in Opposer’s Motion. Restating, Mr. Kozak attends most
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`of these trade shows (despite his age), but he also utilizes his staff to assist him and/or to service
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`as his proxy in other shows. Those events that Mr. Kozak does not personally attend due to
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`6 Applicant’s Response, page 4
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -6-
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`conflicts or personal reasons nonetheless require his attention inasmuch as Mr. Kozak must
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`approve all materials presented during each show and answer queries posted to his proxies by
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`potential buyers.
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`The Opposition does not Determine Right to Use the Mark—— the Burden to Halliburton is Low
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`Halliburton claims to be burdened by this Opposition in that it cannot “proceed further
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`with marketing plans involving this mark.”7 This response indicates that Halliburton has
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`initiated marketing plans but cannot proceed further. This argument should not carry significant
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`weight for at least two reasons.
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`First, it is settled law that any decision regarding eligibility for federal registration (such
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`as an Opposition) is not a decision on whether a party may actually use the mark, but rather a
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`decision on merely eligibility for federal registrations If the contrary were the law, the
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`Trademark Office and Trademark Board could not do many things presently taken for granted,
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`such as reject trademark applications considered morally offensive. Halliburton claims that the
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`Opposition prevents it from proceeding in its planned use of the mark. Eazypower believes that
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`it is not Halliburton that is prevented from using the mark by the Opposition, but rather
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`Halliburton strategically chooses to delay its use of the mark. As such, any burden on
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`Halliburton appears mostly self—imposed.
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`Second, in its discovery answers to Eazypower, Halliburton has been repeatedly invited
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`to disclose when and how it has started to use the mark. Halliburton has made boilerplate
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`objections and has repeatedly indicated that it has not initiated any use.9 If Eazypower is to
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`7 Applicant’s Response, page 6.
`8 See for example, a recent New Hampshire Court which stated that “it is clear that the PTO's refusal to register
`appellant's mark does not afiect his right to use it. No conduct is proscribed, and no tangible form of expression is
`suppressed.” National A-1 Adver. v. Network Solutions, lnc., 121 F. Supp. 2d 156, 177(D.N.H., 2000) (emphasis in
`the original).
`9 See Exhibit A.
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -7-
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`believe Halliburton’s discovery requests, there has been no use of the mark and so the burden to
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`Halliburton must be low as the mark represents only hypothetical future plans. Halliburton now
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`takes the conflicting position that it has initiated plans and that these plans have been halted by
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`the Opposition. If Halliburton has actually started plans for use, it should have updated its
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`discovery responses. Inasmuch as no updated responses were provided, Halliburton’s present
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`conflicting position should not be given weight.
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`Halliburton also claims that its burden is high inasmuch as Eazypower will continue to
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`extend these proceedings indefinitely. This fear is unfounded and should be dismissed out of
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`hand. Only two reasons could exist for subsequent Eazypower extensions: stipulation by the
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`parties (as had occurred when Eazypower consented to Halliburton’ s Request for an extension to
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`reply to first set of discovery materials following a Halliburton change of counsel), or an order
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`by the Board. As such, any subsequent extensions would conceivably only be granted with a
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`showing of new good cause. By seeking a federal trademark registration Halliburton consented
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`to be bound by present trademark regulations under which good cause is a basis for a delay in a
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`matter. As such, Halliburton’s burdens in regards to this fear are de minimus.
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`Conclusion
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`Eazypower has previously demonstrated good cause for an extension and Halliburton’s
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`responses have not undermined Eazypower assertions. In its Response, Halliburton agrees that
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`at least a shorter extension may be appropriate, without providing a sufficient reason why a
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`longer extension would be unreasonable. Further, as is detailed in the initial brief,10 Eazypower
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`continues to contend that it has not abused its extension privileges that this is only its first
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`10 See Opposer’s Extension Request Page Two - the request was filed within Opposer’s Original Testimony Period
`as Halliburton was willing to stipulate only to a very short period.
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`

`
`In Re: Eazypower Opposition (No. 91/173,838)
`Reply to Response Regarding Extension of Time Request
`Page -8-
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`contested extension request with the Board and that it was sought out during the initial testimony
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`period.
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`Eazypower further objects to Halliburton accusations of “sandbagging” and bad faith.
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`The extension motion is not sought in bad faith but is rather a product of the circumstances
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`detailed in the initial brief and expounded upon herein. Eazypower respectfully contends that
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`these circumstances are good cause for the requested l20—day extension.
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`September 20, 2007
`Date
`
`/Michael J. CherskoV/
`Michael J. Cherskov, Esq.
`CHERSKOV & FLAYNIK
`
`The Civic Opera Building
`20 N. Wacker Drive
`
`Suite 1447
`
`Chicago, Illinois 60606
`Counsel for Opposer
`EAZYPOWER CORP
`
`

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`
`
`Exhibit AExhibit A
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`

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`Exhibit A, Page 1
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`Presented below are Halliburton Discovery Responses wherein Halliburton indicated that it had
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`not initiated planning or use of the mark.
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`INI‘ERR()GAT()RY N0. 1:
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`Has any persun except {Ilppuser recumnxended at advised agairmt the appiication or use
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`ofthe s0ught—a;fier mark’? If the answer is other than an u11quaiified negative:
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`(A) identify each such persmz, including the relationship {i.e., emplcsyee, independent
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`cnntracmr, consultant} of that person in the Applicant.
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`{E} state the substance of such advice at reconnneiidation and the date of the zidvice
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`nfthe recmmnezadation;
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`((3) identify each person receiving such advice QT recemmendation; and
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`(D) Iderntify ail documents referring or reiating tn such advice er reeommentiatiun.
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`ANSWER:
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`Applicant objects to the abcwe interwgairiry to the extent that it seeks information that is
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`s'ubjec:£ In the at-”mrz1ey«c1ient privilege as Wei} as the attamey wmk pmduct dectxine.
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`usx-.\.\.\.\\.\\-«-
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`

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`Exhibit A, Page 2
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`INTERRQGATQRY NO. 2:
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`Describe each different product or service aver said, or uffersd for sale by Appiicam, or
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`licensees or arffiiiatiezd ccmpanies by or on behalf nf Appiicant under the sought-afim rnark and
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`for each such pmduct Q1‘ service state:
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`(A) the date an which the Appiicant commenced. the saic or ui-faring for saie of such
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`product or srsrvictr under the soughtvxfter mark.
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`{8}
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`quantities and the dofiar value of the saies ofeach prnduct or service sold
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`under the sough.t'—afl;<:r mark during, each year since the first salt: thereof;
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`{C} the print: ofthe product 01‘ servix:.e;
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`(D) the xnarketing area {by city, county and state) in which the soughmafier mark was
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`used during each year since the first sale thereof;
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`ANSWER:
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`Applicant objects to the above i.ntex'mgat0r_v an the grounds that it is vague and cverly
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`broad.
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`it has not <=mnn1<=-w“‘>d use of the
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`

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`Exhibit A, Page 3
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`INTERROGATORY N0, 4:
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`Icisntify each ditibrsnt cataiog, circuiar, sales literature hrcschure, buiictin, fiyer, sign, sales
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`disptay, paster, or other point" of ssie er promotions} maierrial which uses amifcsr wiil use er
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`contain the Applicamfs sougimafier mark. For each usage:
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`(E) state Each data on which, or the inclusive dates during which, such material is
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`intmded to be disirihuteds;
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`{F} state the goods or services intemied to be advertised;
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`(G) state the market area by political subdivisien and ciasses of customers, geiugraphy
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`or other divisions, if any, 10 which the advertisi_ng is intended to be diremsci; and
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`(H) state to whom the advertisement is intended to be directed.
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`ANSWER:
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`Appiicanii abjects in tbs above interrogatsry on the gmunds that it is overiy broad in that
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`it is not possihk: to identify each cataiog, circuiar, saiss iiterature brochure, 'bui§eti:n, tlycr, sign,
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`sales dispiay, poster, or other point of 32136 or promotional msieria} which Applicant may use in
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`the future. Appficant also ohiscts on the grounds that the infamtaatinn sought contains trade
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`secret audio: coinmsrciaily se.nsitivts inf£*rmflfi011»
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`

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`Exhibit A, Page 4
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`INTERRGGATORY Ni). 1 1 :
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`‘Identify each different labs}, hang tag, blister card, wrapper, ccantainer, iabel,
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`adveniisement, hmchure, and the like, which cimtains 01'
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`the sought*afier mark.
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`ANSWER:
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`IZNTERRGGATORY N0. 12:
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`Identify each difiérent label, hang tag, blister
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`wrapper, c0nVtainAer,A label,
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`advertisemerit, brochure, and the like, which is iilifllldfid to contain or intended tc: bear the
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`s0ught~afier mark.
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`ANSWER:
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`Applicant objects to the above intenngatory an the gmunds it is overly broad in that it is
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`not possible ‘(:3 identify such future labels, tags, blisicr cards, wrappers, cnniainers,
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`.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.
`\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.I.\.(\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.
`\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\\.\~
`ad'w:m,'semm1ts, hrgzchures, and the iikc, because Aggficani has not vet marketed its gpuds under
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`INTERROGA'l‘{}RY N0. 13:
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`Identify each person who has hem: grantad the authorization or iicense, by Applicant or
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`any persun acting upon A_ppiicant’s Imhaif, to use the sought-after markw
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`ANSWER:
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`Appiimnt objects to the above imiemzngatory on the grounds of reievance since Appiiczant has
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`W W3 its mm M
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`

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`Exhibit A, Page 5
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`
`INTERRQGATORY N
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`
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`Idcmiify each perstm (by name and address) empioyed by Applicfint and each outside agent
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`retained by Applicant who has been or new is respunsib!.e ii): {3} marketing, advertising and
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`promotion, and (b) bmykkeeping ami accounting, with respect. to any grands or services intended
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`for sale, offered for 3336 or sold under the soughtaafier mark.
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`ANSWER:
`
`Appiicant nbjects to the above interrogamry on the grounds that it is (warty broad in that
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`it is not possible 10 identify each person empinyed by Appiicmxt and each autside agent who is
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`responsible for nnarketing, advtzriising and pmn1otim1_. bnnkkceping and accxzsunting for
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`Appiica:1t’s »prnd1:t;—ts.
`
`
`
`mm ‘VH5 ..
`.““.““..
`g2rw%wt§é..i:§._gmds
`
`

`
`Exhibit A, Page 6
`
`RE ‘
`
`
`FOR I’R()DUCTTI(}N NO. 8:
`
`
`
`AK} cicscuxrmnis reiatiilg in mly xx-‘:23’ to that‘ cuwem or pizumed .;:dvr:rtisiAt1g wf gocjds or
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`3ervic<:s hearing the su~Lzg’m.—after mmk.
`
`RESfl’()7:\"SE:
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`Ap;:w§i«:a;mA21¥s.-3 objects on the grounds that the ixlfimnation smught cs'_1=ntain.s trade se~c-rat
`
`amgifior i3{m}n.1£:r(:.i23H}-' smsiiix-"e i;Lftzr1‘naticm. Sizxbjsci :2» the ab:;me. s:!hj£‘s:.i‘i=;3.i1,
`\
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`
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`“mts at this time.
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`
`mm:
`
`RE ['.='E-ST FOR PROD'UC”[0N Ni}. 9:
`
`
`
`R$§3r{?S&!1.i:ZlI'i\:‘:':: saunpies 03.‘ am iabels, tags. S‘tiCki‘.I‘S, azonmiuers, packages, or products
`
`intended to be sn¥d_., or ever used, or saoid by .+"-%,;rqfl.i::a:%n: at 21233’ rsslzited em:.i1;.~' b~arin.g the sought-
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`:1fiI:':’r mark.
`
`‘RESPONSE;
`
`I
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`........,.....““-. xx -»ss»»»»~».-»»»»»“\....
`\,l,\,-,\\\\\\\\\\\K\KK\\§\\\\ss\\\\\\\\\\
`
`
`35}: mil suggpieixzent if s;z__s;:_§jz___1namizaE.:s are ex"
`
`

`
`Exhibit A, Page 7
`
`
`0. us:
`
`ma 1132231‘ FUR PR0DUc"r10;
`
`All (kn;-‘Lxn1<:mT.<s inientifiving aii the p"ui31ica:1:i:_ms_. sa»-"eh pi1g:‘.S~, in 1d hmztdcast nicdia in which
`
`App¥ic;m.t has adx-‘firiised, is z~1dve:riising, or
`
`piaun1L*d to a.»:iw:rt.ise am}-' of its pmducts 01‘
`
`services rekztzsd to the ssnzzgiztvafiex‘ rnafle.
`
`RESP()Ni‘s'F.:é
`
`Appiiczxzll objectis {Q the above Request No. 16011 the grmnxds fhéii. it is (mam-v* broad in
`
`that. it mt pussihle to iderztify .smn‘ce':s Qf3££(‘§Vt‘:i‘fiSi$II]t‘3!}3l wiwn Applicant has not yet usad its mink
`
`»«~«««w.~-.~-.-.-.-“-.-.-.-.\“»\.........,...
`in such advcrtis-ez11e.n.isV Subiect m the aibow
`
`
`{3 ST FDR PR(}1}‘U{’_T‘I‘I.(§N
`;
`
`
`
`17:
`
`Specfinmms GT: or cirafis of sgwewimsns of, 2113 acivertisizig and pmm«;aticena! docunwnts
`
`bearing any 01’ flu: sought-z:fi:':r nmrk, including, without limitation, ‘::m~r;h11r“>s, caaiaksga,
`
`circulars, $ez;.i’L:is, d.irs3::t. maii pieces, nmx-‘spz1pt:r and xnzzgazgine exdxrezrtisenienis, cm1:1mcrci.aEs,
`
`websites, web—pa:g~‘s, teieplmne bsmk z1s:I\-'<::'ti5r:n1ents, p!‘i<:z3 lists, 'ira.<.i:: a.s:scci;n:im1 ‘fisiingfi, am1ua¥
`
`re'pe:m.s, trade: Shaw pmgranxs, trade :~:i10w1it{::'atL1.r£:,aamiasiys3the:‘1I‘az1{::s:‘ia1i surch
`
`Eaheis, tags,
`
`packagss, <:0maim;‘.rs, denais, swamps, and name plates inirzrncked in be used by Appiicazm its
`
`di.sLribu:1ors, m‘ mhrsr Sfiflififfi mi‘ its ;.1r0<iuL*rts or serv_ices.
`
`RFISj?’{)NSE~:
`
`--\.\.\.\x~.~.~.--\\\~ss\\\€\V\~~~~~~'~'v~'~'~'~'~'\'\'v\'\'\
`mm»
`~---.»-.-.-.-nu...“...«-«“«“«“...v.~-.-.~““\-n-.“““““»~..
`‘um.
`Nmxe. Applicant x TH szx.Ep¥e;n1eni ifsuch s;¥a)cLL2u*1s:ms are c:re~:i::~.d..
`
`RE. "UESTFGR PRODU( TION NO. 18:
`
`
`
`
`All d(){I1J1i31t‘-I1IS}‘6l3EEdii) z:.n_\.-‘ iradeshows, indusiiy xmztzxiin focus. gmups 1-x-‘h<:reiThs.-2
`
`s:0ug.ht—afi.ex‘ mark was d.iSp§El}'f3Ci or disscussad.
`
`
`RF;SP()NL .
`
`»‘--~-~-.~~~~-n-sum
`xx--»--.---.u...«««~“«~w.
`-.\-.““““~“....,._.__,,....‘,
`N(11‘lv3.
`:’5«;:gp§:i:,:;=zr1.i‘x?»'ili su;:3;1J§e:rngrnt if'5ua;.}'
`
`
`‘
`
`

`
`Exhibit A, Page 8
`
`RE! UEST FOR PRO!) EEC’ ‘I0;‘~§ N0. 19:
`
`
`
`
`
`Ai1dmcun:.e:1tsw:iated to A_pph:o:ant‘s s:u.::<i:3rn6:x‘ list:-3, pzvspemixre &'§i1S{'{H‘t‘£.<23‘ liscts, smd
`
`fizziiiizlg ii for p1‘0:;lw:'£s or serxrices intemdgtd to be 0f1‘E2rt':<.$._ ime:nd<:*-‘i to be sold, m'i::t‘m1ded 10 be
`
`marketed under the smzght~afic1' mark.
`
`RESP()NSE:
`
`Appmsant c.1b_i:c:cts’m the above Requmt Ni). 19 on grm,t.n<is it
`
`it1fm':*.nai:i¢;n1 that
`
`«~«~~~
`-~u-w---~--- -.-.-axuux---«««~~~w-w-s
`v-mu»-~~“nun--««s“w.\finux“-.-.“\“.. ,.,.,,.....,“...,.,““.,.,.,.,,.,..,.
`trade sears: and »::on:iidem;iai. _Su¥:§§ci in tizigst gsbiecticzu. Aggliezant
`it has not ya: esteiihiisfzad
`
`Such ii
`
`RE I.=‘I.“.C
`
`
`
`T ma Pnoutfjrtzm NI). 29;
`
`
`
`All ductxxnrcixts related to A;3pl:ic:u1i customer types? i.nch'uiin.g. nziméss ufc-x.Lr.r<'mt Oi’
`
`porésibie w21ole:=.a2e.rs, rc2:s:;‘.1k:rs,_ and .rc:iaii¢.—‘.r3.
`
`RES!’(}.NSF;:
`
`Appiicant objects in the abcwe Request EU on grmmds it seeks in.f‘m':m':1iia:>n that
`
`~-x.-n--.u.u««““‘ xmw.“-.....\-.-.\““\“\
`Evade sacral and cnnfiiicrziiai.
`‘t has mm yvzt‘ es:a.bi.:s§;§_;_§v
`
`\'~'9~'-'-'-'->\--.-.>3.\.~.~.-~\~s\~\\-n-vs-n-\\\-u-.\
`sm:-h aincumems.
`
`

`
`CERTIFICATE OF SERVICE
`
`A true and correct copy of OPPOSER’S REPLY TO APPLICANT’S RESPONSE TO
`EXTENSION OF TIME PERIODS has been served electronically, by facsimile to (870) 355-
`4812, and U.S. mail on this, the 20th Day of September, 2007 to:
`
`Jeffrey J. Look
`The Look Law Firm PLLC
`
`P.O. Box 364
`
`Eudora, AR 71640
`
`/Michael J. CherskoV/
`
`Michael J. Cherskov, Esq.
`CHERSKOV & FLAYNIK
`
`The Civic Opera Building
`20 N. Wacker Drive
`
`Suite 1447
`
`Chicago, Illinois 60606
`Tel.: 312-621-1330
`
`Fax: 312-621-0088
`
`(Attorney for Opposer)
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Serial No.
`
`: 78/740036
`
`Opposition No.
`
`: 91 173838
`
`Mark
`
`: ACHIEVER
`
`)
`
`)
`
`)
`)
`
`) )
`
`)
`
`) )
`
`)
`
`EAZYPOWER CORP.
`
`Opposer,
`
`V.
`
`HALLIBURTON ENERGY
`
`SERVICES, INC.
`
`Applicant
`
`Commissioner for Trademarks
`
`Attention: Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 223 l3— l45 l
`
`20. N. Wacker Drive
`
`Chicago, IL 60612
`(3l2) 62l—l330
`
`DECLARATION OF SZYMON M. GURDA IN SUPPORT OF OPPOSER’S REPLY TO
`
`APPLICANT’S RESPONSE TO EXTENSION OF TIME PERIODS
`
`I, Szymon M. Gurda, declare as follows:
`
`l.
`
`I am an attorney in good standing with the Supreme Court of Illinois.
`
`2.
`
`I am an associate attorney at Cherskov & Flaynik, the law—firm of record for the above-
`
`listed Federal Trademark Opposition Proceeding presently in front of the Trademark
`
`Trial and Appeal Board. I am over l8 and fully capable of executing this document.
`
`3.
`
`In early August, Opposer Eazypower principal agent, Mr. Burton Kozak requested a
`
`stipulated extension from Applicant Halliburton.
`
`4.
`
`In attempting to obtain a stipulated extension, I was informed that Halliburton was
`
`willing to agree solely to a l4—day extension, but through the efforts of counsel of record,
`
`Mr. Jeffery J. Look, that period was subsequently extended by 6 days in light of the
`
`Labor Day Holiday.
`
`

`
`Declaration of Szymon M. Gurda
`September 20, 2007
`Page -2-
`
`5.
`
`Eazypower consented to this initial extension proposal inasmuch as settlement appeared
`
`imminent.
`
`During the process of negotiating for the 20-day extension, Jeffery J. Look told me that
`
`the 20-day extension was the maximum extension to which Halliburton was willing to
`
`stipulate.
`
`Subsequently, Mr. Kozak advised me his schedule during the 20-day window and for
`
`several weeks thereafter prevented him from devoting the time required to preparing
`
`testimony, and attending depositions in this matter.
`
`I spoke with Halliburton counsel on the phone on August 24 2007 and advised him of
`
`Eazypower’s need for 120 days additional time, to which Mr. Look responded that
`
`Halliburton will oppose any such request.
`
`All statements made herein are based on my own knowledge and are true.
`
`I understand
`
`that willful false statements and the like are punishable by a fine or imprisonment, or both
`
`under 18 U.S.C. §l00l, and that such statements may jeopardize the validity of this
`
`document.
`
`September 20, 2007
`
`/Szymon M. Gurda/
`
`Respectfully submitted,
`
`Szymon M. Gurda
`Law Offices of Cherskov &
`
`Flaynik
`20 N. Wacker Drive
`
`Suite 1447
`
`Chicago, IL 60606
`Phone: (312) 621-1330
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Serial No.
`
`: 78/740036
`
`Opposition No.
`
`: 91173838
`
`Mark
`
`: ACHIEVER
`
`)
`)
`)
`)
`
`) )
`
`)
`
`) )
`
`)
`
`EAZYPOWER CORP.
`
`Opposer,
`
`V -
`
`HALLIBURTON ENERGY
`SERVICES, INC.
`
`Applicant
`
`Commissioner for Trademarks
`Attention: Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`20. N. Wacker Drive
`Chicago, IL 60612
`(312) 621-1330
`
`DECLARATION OF PATRICK J. SMITH IN SUPPORT OF OPPOSER’S REPLY TO
`APPLICANT’S RESPONSE TO EXTENSION OF TIME PERIODS
`
`I, Patrick J. Smith, declare as follows:
`
`1.
`
`I am an attorney in good standing with the Supreme Court of Illinois.
`
`2.
`
`I am an associate attorney at the law offices of Factor & Lake, Ltd.
`
`3. Factor & Lake, Ltd. has been retained by Eazypower Corp. in connection with three
`
`separate patent litigation matters.
`
`4.
`
`I am personally familiar with the progress and status of each one of the cases.
`
`5. Mr. Burton Kozak is the primary contact and liaison for Eazypower in each of these
`
`matters.
`
`6. Mr. Kozak’s cooperation and feedback are critical to the successful resolution of the
`
`matters our firm presently pursues on Eazypower’s behalf.
`
`7. Each one of the three matters is presently pending and requires Mr. Kozak’s attention in
`
`the coming months, and, at the present time, prompt settlement does not appear likely.
`
`

`
`Declaration of Patrick J. Smith
`September 19, 2007
`Page -2-
`
`8.
`
`First, in Eazypower V. Alden, N.D. Il. Civ. Act. No. 03 C 3164, the Court, on September
`
`6, 2007, issued a 28-page Markman claim construction opinion. In response to the
`
`Court’s decision, Mr. Kozak’s input is required to prepare for possible dispositive
`
`motions. Discovery materials are pending full review in this case and Mr. Kozak’s
`
`assistance, based upon his knowledge of these materials, is essential.
`
`Second, in Eazypower’s patent infringement case, Eazypower v. Jore, N.D. I1. Civ. Act.
`
`No. 04 cv 06372, both sides are awaiting a Markman claim construction opinion from the
`
`Court. Discovery is currently open in the case. Mr. Kozak will be required to assist in
`
`the selection and identification of parties and individuals for deposition(s) and to assist in
`
`the analysis of discovery materials. It is expected that Eazypower will also have to
`
`respond to additional discovery requests from the defendant.
`
`10.
`
`Third, in Alden V. Eazypower, Ct. Act. No. 07 cv 00711, the parties have completed
`
`briefing on a dispositive motion to dismiss for lack of subject matter jurisdiction. A
`
`decision is expected in the coming weeks. If the court refuses to dismiss the entirety of
`
`the claims, Mr. Kozak will be required to assist in, amongst other things, onerous
`
`discovery in a foreign jurisdiction. This case has already been particularly burdensome
`
`since Eazypower was hailed as a defendant into a foreign jurisdiction.
`
`11.
`
`The burdens imposed on Mr. Kozak by these cases are expected to peak in the coming
`
`weeks and months. The level of involvement for Mr. Kozak will decrease as the cases
`
`enter phases where legal (as opposed to factual) arguments predominate. Those phases
`
`are expected to begin near the end of the calendar year.
`
`12.
`
`All statements made herein are based on my own knowledge and are true. I understand
`
`that willfiil false statements and the like are punishable by a fine or imprisonment, or both
`
`

`
`Declaration of Patrick J. Smith
`September 19, 2007
`Page -3-
`
`under 18 U.S.C. §1001, and that such statements may jeopardize the Validity of this
`
`document.
`
`*1’
`
`V1 330?’
`
`Respectfully submitted,
`
`
`
`Patrick J. Smith, Esq.
`FACTOR & LAKE, LTD.
`1327 W. Washington Blvd.
`Suite 5G/H
`
`Chicago, Illinois 60607
`Tel: 312—226-1818
`
`Fax: 312-226-1919
`
`Email: psmith@factor-lake.com
`
`
`
`

`
`TN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`~ "DRE THE TR
`MAR
`IAL
`F‘.A1'.. H
`RD
`
`sé.-rial No.
`
`: 78:'74U03fi
`
`Opposition No.
`
`: 9'! 173833
`
`Mark
`
`: ACHIEVER
`
`3
`)
`}
`)
`
`)
`J
`
`) J
`
`)
`
`EAZVPDWER CORP.
`
`Opp-oser,
`
`v.
`
`HALJLIBURTON ENERGY
`SERVICES. TNC1.
`
`Applicant
`
`Com;mi:-mionor for Trstdeinarks
`Attention: “Trademark Trial and Appeal Board
`RD. Box 1-4-51
`Alexandria, VA 223 13-1451
`
`20. N. Waoloer Drive
`Chicago. TI. 60512
`(312) 621-1330
`
`
`
`L David A. Novooeieky, cleolaro as follows:
`
`1.
`
`2!.
`
`1 ton an attomu.-y in good standing with the Supreme Court of Illinois.
`
`1 am a princi