Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA161042
`ESTTA Tracking number:
`09/06/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173838
`Defendant
`Halliburton Energy Services, Inc.
`JEFFREY J. LOOK
`LOOK LAW FIRM PLLC
`P.O. BOX 364
`EURDORA, AR 71640
`UNITED STATES
`jefflook@trademarkguru.biz
`Opposition/Response to Motion
`Jeffrey J. Look
`jefflook@trademarkguru.biz
`/jeffreyjlook/
`09/06/2007
`haliburton responsetomotion to extend.pdf ( 9 pages )(33974 bytes )
`Jeff Look declaration.pdf ( 3 pages )(23601 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA161042
`ESTTA Tracking number:
`09/06/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173838
`Defendant
`Halliburton Energy Services, Inc.
`JEFFREY J. LOOK
`LOOK LAW FIRM PLLC
`P.O. BOX 364
`EURDORA, AR 71640
`UNITED STATES
`jefflook@trademarkguru.biz
`Opposition/Response to Motion
`Jeffrey J. Look
`jefflook@trademarkguru.biz
`/jeffreyjlook/
`09/06/2007
`haliburton responsetomotion to extend.pdf ( 9 pages )(33974 bytes )
`Jeff Look declaration.pdf ( 3 pages )(23601 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`EAZYPOWER CORP.,
`
`Opposer,
`
`V.
`
`HALLIBURTON ENERGY
`
`SERVICES, INC.
`
`Applicant.
`
`\:/\:/\:/\:/\:/\:/\:/\:/\:/\:/
`
`Opposition No. 91173838
`
`RESPONSE TO OPPOSER’S MOTION FOR EXTENSION OF TIME PERIODS
`
`SET FORTH IN SCHEDULING ORDER
`
`TO THE TRADEMARK TRIAL AND APPEAL BOARD:
`
`Pursuant to Trademark Rule 2.1 16(a), 37 C.F.R. Section 2.1 16(a), Applicant
`
`Halliburton Energy Services, Inc. (hereinafter Applicant or Halliburton) files this
`
`Response To Opposer’s Motion For Extension Of Time Periods Set Forth In Scheduling
`
`Order.
`
`I.
`
`Factual Background
`
`On November 8, 2006 this Board entered a scheduling order for this case which
`
`set out discovery and testimony periods. As originally set, Opposer’s testimony period
`
`was to expire on August 25, 2007. On August 1, 2007, after the opening of Opposer’s
`
`testimony period, Opposer’s president, Burton Kozak, contacted the undersigned attorney
`
`directly1 and made a settlement proposal. Opposer further stated that he was going to be
`
`1Mr. Kozak personally called the undersigned attorney without his counsel of record on the call. Mr.
`Kozak stated that his attorneys knew he would be calling the undersigned directly. Upon conclusion of the
`call the undersigned contacted Mr. Kozak’s attorneys and informed them of the substance of the call and
`Mr. Kozak’s counsel of record confirmed that they were aware that Mr. Kozak intended to make the call
`directly and without their participation in the call.
`
`
`
`leaVing the country in 48 hours and wanted an answer to the proposal before he left. The
`
`offer was passed on to Applicant’s in—house legal counsel the same day, but Applicant
`
`could not respond during Opposer’s time frame. See the Declaration of Jeffrey J. Look
`
`attached as Exhibit 1 hereto.
`
`On August 3, 2007, Szymon Gurda, counsel for Opposer contacted the
`
`undersigned seeking a stipulated extension of time to reset the testimony periods.
`
`Opposer’s counsel initially requested 60—days largely due to Mr. Kozak’s absence from
`
`the country during half of the scheduled testimony period. At no time during this
`
`conversation was Mr. Kozak’s adVanced age, religious holiday obserVances or other
`
`litigation cases mentioned. The undersigned contacted Applicant’s in—house counsel who
`
`indicated that Applicant had not made a decision on the settlement proposal but that
`
`While they were agreeable to some extension of time, they were not agreeable to 60—days.
`
`Applicant did authorize an extension of the testimony periods by approximately 20 days
`
`so as to allow for the 2 weeks Mr. Kozak would be out of the country as well as the
`
`upcoming Labor Day holiday. The stipulated motion was filed and the Board granted the
`
`resetting of the testimony dates. See the Declaration of Jeffrey J. Look, Exhibit 1.
`
`On or about August 6, Applicant formally rejected Opposer’s settlement proposal
`
`and this information was passed on to Opposer’s counsel. No communication was
`
`receiVed from Opposer until August 24 when Opposer’s counsel, Mr. Gurda, called to
`
`inform the undersigned that Opposer was filing a motion to reset the testimony dates for
`
`reasons not specified other than Mr. Kozak was haVing scheduling conflicts. The
`
`undersigned informed Mr. Gurda that Applicant would oppose a motion to extend the
`
`testimony periods as currently set. See the Declaration of Jeffrey J. Look, Exhibit 1.
`
`
`
`On August 24, 2007, Opposer filed the instant Motion For Extension Of Time
`
`Periods Set Forth In Scheduling Order on a Variety of grounds which amounted to, in
`
`essence, that Opposer’s president, Burton Kozak, is simply too busy to attend to this
`
`opposition matter. As grounds, Opposer has stated in its motion that Mr. Kozak has at
`
`least two patent infringement lawsuits and a couple of breach of contract cases and other
`
`unspecified litigation pending in other jurisdictions. Opposer also states that Mr. Kozak
`
`must traVel to numerous trade shows oVer the coming months, many of which conflict
`
`directly with each other; that Mr. Kozak, who is a member of the Jewish faith, intends to
`
`obserVe seVeral Jewish holidays during this same time frame; that Mr. Kozak is 76 years
`
`old and that his age should factor into the matter for unspecified reasons and that
`
`Applicant itself shares some blame because it asked for a 45-day extension of time to
`
`answer discoVery oVer four months ago. None of these facts were Verified by an affidavit
`
`or declaration.
`
`II.
`
`ARGUMENT
`
`Applicant is opposing Opposer’s Motion For Extension Of Time Periods for the
`
`reason that Opposer has failed to establish “good cause” for the second extension of
`
`time. In recent years, the Board has started making an effort to tighten up on its good
`
`cause standard in support of motions to extend. See e. g., Procyon Pharmaceuticals, Inc.
`
`v. Procyon Biopharma, Inc., 61 USPQ2d 1542 (TTAB 2001); Societa Per Azioni Chianti
`
`Rafiino Esportazione Vinicola Toscana v. C0lli Spolentini Spoletodacale SCRL, 59
`
`USPQ2d 1383 (TTAB 2001); Baron Philippe de Rothschild SA v. Styl—Rite Optical Mfg.
`
`Co., 55 USPQ2d 1848 (TTAB 2000), TBMP Section 509.01. Further, the Board will
`
`
`
`“scrutinize carefully” any motion to extend time to determine whether the requisite good
`
`cause has been shown. TBMP Section 509.01.
`
`In this particular case, Applicant submits that Opposer has “sandbagged”
`
`Applicant with his shotgun approach at establishing “good cause.” At no time until the
`
`Opposer’s motion was filed in writing with the Board was any mention of other litigation
`
`going on that would necessitate postponement of Opposer’s testimony period. Indeed,
`
`eVen in Opposer’s motion itself, there is no indication that there is anything pending in
`
`any of the cited lawsuits which shows that there are conflicting time settings. For
`
`example, there is no mention of depositions being scheduled, discoVery deadlines,
`
`hearing or trial settings in any of the cases that would prevent Mr. Kozak from attending
`
`or taking any depositions in this case. Secondly, the fact that Mr. Kozak is essentially the
`
`only person inVolVed in the decision making process for these other litigation matters is
`
`his burden to bear. He is essentially the Plaintiff in this proceeding, and he was fully
`
`aware of his litigation schedule when this proceeding was filed. Mr. Kozak must factor
`
`in the deadlines in this case and be prepared to comply with them the same as in any
`
`other case.
`
`Opposer has not specified in his Motion For Extension who he plans to depose in
`
`his testimony period who is otherwise unavailable to testify. Presumably Opposer means
`
`Mr. Kozak. Aside from Mr. Kozak, there is no indication that anyone else will be
`
`deposed. Assuming only one deposition will be taken by Opposer, there should be no
`
`reason why Mr. Kozak could not make himself aVailable for a few hours during the 30-
`
`day testimony period. Applicant cooperated by allowing Mr. Kozak an initial 20-day
`
`extension of time to accommodate his traVel schedule during his testimony phase as
`
`
`
`originally set. However, Applicant was never informed of Mr. Kozak’s unavailability
`
`until after his testimony period commenced and then was given 48—hours notice that he
`
`would not be available for 2—weeks. Surely Mr. Kozak, who was going to Europe on
`
`vacation, knew well in advance of his testimony period that he would be unavailable for
`
`the first 2 weeks in August.
`
`As for Mr. Kozak’s business travel schedule, Applicant notes that several of the
`
`trade shows he plans to attend are going to be held at the same time in cities that are
`
`hundreds, if not thousands, of miles apart. Further there are trade shows on schedule
`
`nearly every week from September to November and two unspecified shows in Vietnam
`
`and India in November and December. While Applicant appreciates the fact that Mr.
`
`Kozak as a small business owner must travel to trade shows, there is no guarantee that if
`
`Mr. Kozak’s requested l00—day extension is granted he won’t come up with several more
`
`shows in December that will prevent him from participating in this case.
`
`Mr. Kozak has also cited religious holidays that conflict with his current
`
`testimony schedule. As listed in Opposer’s motion, the only holiday that currently
`
`conflicts is Rosh Hashanah. Again, Mr. Kozak knew of these holidays when the initial
`
`extension was granted, yet nothing was said to Applicant to indicate that he was Jewish
`
`or that this holiday would interfere with his ability to complete his testimony period.
`
`Applicant would show further that several of the trade shows Opposer plans to attend are
`
`going to be held during Mr. Kozak’s faith’s religious holidays. See e. g., Monroe
`
`Hardware Fall Show to be held during Rosh Hashanah and Fast of Gedaliah; Blish—Mize
`
`Fall Customer Buying Market and Jensen Distributor Show to be held during Yom
`
`Kippur. It would appear that if Opposer can attend trade shows during major religious
`
`
`
`holidays, he should be able to attend to prosecuting this Opposition period just as well.
`
`Again, if Opposer’s requested extension is granted, its next testimony period will include
`
`the Jewish holiday period of Hanukah as well as the non—secular Thanksgiving holiday.
`
`It is highly likely that if Mr. Kozak is allegedly too busy to tend to this case now, he will
`
`be equally too busy in November and December. Applicant has no power to set religious
`
`or governmental holidays. There are holidays of some sort almost every month during
`
`the year. If Mr. Kozak intends to observe such holidays, then he is perfectly free to do
`
`so, however, he must factor these time periods in his schedule and tend to the business of
`
`this case the same as he tends to any other matter connected with his business.
`
`Opposer further alleges that its requested extension will not be burdensome to
`
`Applicant because Applicant has not filed an allegation of use or made any attempt to
`
`commence use of the mark. Applicant disagrees. First of all, Applicant is “blacked out”
`
`from filing any allegation of use during the pendency of this Opposition Proceeding.
`
`Secondly, Applicant has been reluctant to proceed further with marketing plans involving
`
`this mark pending the resolution of this Opposition. By delaying the course of these
`
`proceedings, Applicant is put at a commercial disadvantage in that it is reluctant to invest
`
`significant marketing costs in the present mark until it has some decision on the merits of
`
`Opposer’s alleged likelihood of confusion claim. Every day that Opposer delays this case
`
`delays Applicant’s ultimate release of the product. Applicant believes this is the real
`
`reason for the requested extension by Mr. Kozak. Opposer was upset that Applicant
`
`rejected his settlement offer and now seeks to delay this case as long as possible to keep
`
`Applicant from releasing its product under the ACHIEVER mark.
`
`
`
`Opposer’s claim that Applicant previously asked for and received a 45-day
`
`extension of time to respond to discovery requests earlier in the year has contributed to
`
`the scheduling problem is without merit. The extended deadline for Applicant to respond
`
`to Opposer’s discovery was April 2, 2007. Applicant in fact complied with the deadline.
`
`This was almost two months before the expiration of the original discovery deadline of
`
`May 27, 2007, and it did not necessitate the resetting of any discovery or testimony
`
`periods. There is no rational reason why Opposer would be prevented from complying
`
`with its currently extended testimony period because of the previous mutually agreed
`
`upon discovery response deadline.
`
`III.
`
`Conclusion
`
`Applicant would show that Opposer’s Motion should be denied. As this Board
`
`has noted litigants should no longer assume that motions to extend which are subject to a
`
`“good cause” standard will be routinely granted. TBMP Section 509.01. Applicant has
`
`shown in this response that good cause has not been established by Opposer. First, the
`
`factual allegations in the motion are unverified or supported. Secondly, Opposer has
`
`offered several unspecific and often inconsistent reasons why an extension should be
`
`granted. While Opposer has indicated that the “press of other litigation” prevents his
`
`material participation in this case, he has not specifically stated why or how the other
`
`litigation interferes with any deadlines set in this case. Secondly, Opposer has cited
`
`numerous conflicting trade shows that he plans to attend. Trade shows that not only
`
`conflict with each other, but with the observance of his faith’s religious holidays.
`
`Furthermore, Opposer has incorrectly stated that he has not abused the privilege
`
`of seeking extensions of time as this is his first request. In point of fact, it is his second
`
`
`
`request. His first request was a stipulated motion which Applicant agreed to despite not
`
`being contacted about the need for an extension until after his originally scheduled
`
`testimony period opened and then was told that Opposer would be unavailable for
`
`roughly half the time due to a previously scheduled vacation. After Opposer returned
`
`from vacation and was apparently informed of Applicant’s rejection of its settlement
`
`offer, Opposer filed the instant motion notwithstanding the fact that at the time, Opposer
`
`had three weeks to complete his testimony period.
`
`Applicant will suffer prejudice from Opposer’s continued delay of this case.
`
`Applicant cannot continue to develop its marketing plans for its ACHIEVER product
`
`until a decision on the merits of this case is issued by the Board. This effectively delays
`
`the introduction of the product to the market. Opposer appears to be using delay as a
`
`strategy to force Applicant to agree to settlement on his terms. This is abusive and
`
`smacks of bad faith. Applicant respectfully submits that this Board should deny
`
`Opposer’s motion in its entirety. In the alternative, if the Board should find “good cause”
`
`for granting Opposer an extension, Applicant submits that 100 days as requested by
`
`Opposer is unreasonable. In the Azioni Chianti case, 61 USPQ2d 1383 (TTAB 2001) this
`
`Board rejected the movant’s 60-day extension request and granted 30—days and warned
`
`the movant that further extensions would not be granted without consent or without a
`
`showing of extraordinary circumstances. Applicant submits that if any extension is
`
`granted that it should be for no more than 30 days, and that Opposer should be warned
`
`that further extensions will not be granted without consent or a showing of extraordinary
`
`circumstances and that trade show travel scheduling, religious or public holidays or other
`
`
`
`litigation matters are not extraordinary circumstances. Opposer’s delay tactics should not
`
`be condoned by this Board.
`
`September 6, 2007.
`
`Respectfully submitted,
`
`/jeffreyjlook/
`Jeffrey J. Look
`LOOK LAW FIRM
`
`P.O. Box 364
`
`Eudora, AR 71640
`
`Phone: (469) 371-3082
`
`Attorney for Applicant
`Halliburton Energy Services, Inc.
`
`CERTIFICATE OF SERVICE
`
`The undersigned attorney for Applicant hereby certifies that one copy of the
`foregoing RESPONSE TO OPPOSER’S MOTION FOR EXTENSION OF TIME
`PERIODS SET FORTH IN SCHEDULING ORDER has been serVed on Opposer’s
`counsel of record, Michael J. CherskoV, CherskoV & Flaynik, The Civic Opera Building,
`20 N. Wacker DriVe, Ste. 1447, Chicago, IL 60606 Via first class mail, postage prepaid,
`and by fax: 312-621-0088, on this 6th day of September 2007.
`
`/j effreyj look
`Jeffrey J. Look
`
`CERTIFICATE OF ELECTRONIC FILING
`
`I, Jeffrey J. Look, do hereby certify that the attached RESPONSE TO
`OPPOSER’S MOTION FOR EXTENSION OF TIME PERIODS SET FORTH IN
`
`SCHEDULING ORDER is being electronically filed with the Trademark Trial and
`Appeal Board through the PTO Website, www.uspto.goV, on this 6th Day of September,
`2007.
`
`/j effreyj look/
`Jeffrey J. Look
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`EAZYPOWER CORP.,
`
`Opposer,
`
`V.
`
`HALLIBURTON ENERGY
`
`SERVICES, INC.
`
`Applicant.
`
`\:/\:/\:/\:/\:/\:/\:/\:/\:/\:/
`
`Opposition No. 91173838
`
`DECLARATION OF ,|EFFREY ,I. LOOK IN SUPPORT OF HALLIBURTON
`
`ENERGEY SERVICES’ RESPONSE TO OPPOSER’S MOTION FOR
`
`EXTENSION OF TIME PERIODS SET FORTH IN SCHEDULING ORDER
`
`1, Jeffrey J. Look, declare as follows:
`
`1.
`
`I am the attorney of record for Applicant Halliburton Energy Services, Inc. in the
`
`above referenced Opposition Proceeding.
`
`I am over 18 and fully capable of executing
`
`this document.
`
`2.
`
`On November 8, 2006 this Board entered a scheduling order for this case which
`
`set out discovery and testimony periods. As originally set, Opposer’s testimony period
`
`was to expire on August 25, 2007. On August 1, 2007, after the opening of Opposer’s
`
`testimony period, Opposer’s president, Burton Kozak, contacted me directly1 and made a
`
`settlement proposal. Opposer further stated that he was going to be leaving the country in
`
`48 hours and wanted an answer to the proposal before he left. The offer was passed on to
`
`1Mr. Kozak personally called the undersigned attorney without his counsel of record on the call. Mr.
`Kozak stated that his attorneys knew he would be calling the undersigned directly. Upon conclusion of the
`call the undersigned contacted Mr. Kozak’s attorneys and informed them of the substance of the call and
`Mr. Kozak’s counsel of record confirmed that they were aware that Mr. Kozak intended to make the call
`directly and without their participation in the call.
`
`
`
`Applicant’s in—house legal counsel the same day, but Applicant could not respond during
`
`Opposer’s time frame.
`
`2.
`
`On August 3, 2007, Szymon Gurda, counsel for Opposer contacted me seeking a
`
`stipulated extension of time to reset the testimony periods. Opposer’s counsel initially
`
`requested 60—days largely due to Mr. Kozal<’s absence from the country during half of the
`
`scheduled testimony period. At no time during this conversation was Mr. Kozal<’s
`
`adVanced age, religious holiday obserVances or other litigation cases mentioned.
`
`I
`
`contacted Applicant’s in—house counsel who indicated that Applicant had not made a
`
`decision on the settlement proposal but that while they were agreeable to some extension
`
`of time, they were not agreeable to 60—days. Applicant did authorize an extension of the
`
`testimony periods by approximately 20 days so as to allow for the 2 weeks Mr. Kozak
`
`would be out of the country as well as the upcoming Labor Day holiday. The stipulated
`
`motion was filed and the Board granted the resetting of the testimony dates.
`
`3.
`
`On or about August 6, Applicant formally rejected Opposer’s settlement proposal
`
`and this information was passed on by me to Opposer’s counsel. No communication was
`
`receiVed from Opposer until August 24 when Opposer’s counsel, Mr. Gurda, called to
`
`inform me that Opposer was filing a motion to reset the testimony dates for reasons not
`
`specified in detail other than Mr. Kozak was haVing scheduling conflicts.
`
`I informed Mr.
`
`Gurda that Applicant would oppose a motion to extend the testimony periods as currently
`
`set.
`
`4.
`
`All statements made herein by my own knowledge are true and those which are
`
`made on information and belief are believed to be true.
`
`I understand that willful false
`
`
`
`statements and the like are punishable by fine or imprisonment. or both. under 18 L.‘.S.C'.
`
`Section 1001. and that such statements inay jeopardize the \'alid‘t_\' of this document.
`
`September 6. 3007.
`
`,«
`
`/
`I
`tZ"’L/ /7
`
`V
`\
`
`Respe7cti‘1y}' suhn}itted. /
`
`
`V,
`
`//
`
`/"If,
`K
`
`P.O. Box 364
`
`Eudora. AR 71640
`
`Phone:
`
`(469) 371-3082
`
`Attorney for Applicant
`Halliburton Energ} Services. Inc.
`
`Lu
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
