IN THE UNITED STATES PATENT AND TRADEMARK OFF- __
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD.
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`TTAB
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`McCaskill, Stacy N, Opposer
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`V.
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`Busch, James L. Applicant
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`Mark: FETISH SPA, Serial # 77172839,
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`Filing Date May, 04, 2007,
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`Publication Date Jan. 08, 2008, Proceeding # 91183923,
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`ESTTA Tracking #: ESTTA209516
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`ANSWER TO OPPOSITION
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`In the matter of Application Serial Number 77172839 filed May, 04, 2007 by
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`James L Busch, (“Applicant”), an‘ individual with a mailing address of 8126, 101“ Street
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`Ct. E., Puyallup, WA. 98373-1333, to register FETISH SPA as a trademark for use in
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`connection with “Stock photography services, namely, leasing reproduction rights of
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`photographs and transparencies to others,” in lntemational Class 042, which was
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`published in the Oflicial Gazette on January 08, 2008.
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`James L Busch hereby rejects all issues as brought by Ms. McCaskill; before the Trial
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`and Appeal Board for the following reasons:
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`2' THEN‘:/TM Hell Rep‘. Cl.
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`332
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`L‘ 5 Patent
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`

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`A Prior to filing for the registered trademark FETISH SPA in May 2007 Mr. Busch
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`did extensive searches for conflicting trademark names using all intemet options
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`available as well as spelling & word placement options. No similar trademark names
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`were identified at that time. After May 2007 the USPTO as part of the registration
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`process conducted a more extensive search of their documents and library using the
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`mark FETISH SPA, as well as spelling & word placement options. The examiner did
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`not find conflicts. If they identified the mark in question “SPAFETISH” the examiner
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`determined it to be dissimilar enough; to not cause confusion in the general public.
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`This is grounds for dismissal of this opposition based on the fact that Ms.
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`McCaski1l did not file, or pay fees to protect the words FETISH SPA.
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`Aa.
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`In checking the key words FETISH SPA or FETISHSPA prior to Ms.
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`McCaskill’s filing the opposition, the major intemet providers linked to
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`www.fetishspa.us . Since the date of opposition, the AOL search engine links the
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`search for keywordfetish spa/fetishspa to Ms. McCaskill’s site SPAFETISH. The
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`only explanation for this sudden change is that Ms. McCaskill, her stafl‘ and
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`confidants have paid the search engine providers for placement. Further more, these
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`paid search engine placement agreements have imbedded the keywords:fetish spa,
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`fetishspa. This represents a deliberate attempt to divert persons searching for my
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`artistic websites to MS. McCaskill’s multi-level marketing website.
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`B. Ms. McCaskill’s Trademark SPAFETISH is only registered to protect the class
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`of registration; International Class 003; “Beauty products, namely, non-medicated lip
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`balm, skin moisturizing Facial care products, namely non-medicatedface mask, non-medicated
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`face scrub, non-medicatedface toner; bath products, namely soap, bubble bath, bubble bath
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`powder,;foaming bath butter, bath & shower gel, bath & shower cream, bath oil, bath salts,
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`bath syrup, body scrub, bath bombfizzies, bath milk, bath tea; body products, namely, body
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`lotions, body oil, body butter, body powder, perfume, body mask, in class 3 (US CLS.
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`1,4,6,50,51 and 52). She failed to register or pay fees to protect additional classes
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`including (but not limited to) International Class 042 “Stock photography
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`services, namely, leasing reproduction rights ofphotographs and
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`transparencies to others,” Mr. Busch has duly applied for and paid fees to
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`register FETISH SPA under the International Class 042 for which Ms. McCaskill
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`has no claim.
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`This is grounds for dismissal of this opposition based on the fact that Ms.
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`McCaskill did not file, or pay fees to protect the International Class 042
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`“Stock photography services, namely, leasing reproduction rights of
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`photographs and transparencies to others, ” .
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`C. The defendant Mr. Busch wishes to submit as evidence attachment “A” the
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`extortion letter from Ms. McCaskill
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`Ms. McCaskill has added her personal opinion as “grounds” to these pleadings
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`and defamed Mr. Busch by making false and misleading statements and accusations.
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`Mr. Busch’s response to these claims by opposer’s number to be entered into the
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`record.
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`1. No opposition
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`2. Defendant questions “exclusive right” as presented by opposer. Opposer has
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`failed to attempt to register, or pay fees associated with, registering the trade name
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`FETISH SPA or FETISHSPA relying on the very narrow protection on the registered
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`trade name SPAFETISH (class 003).
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`3. No opposition.
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`4. Although Ms. McCaskill claims superior rights based on the FETISH SPA fantasy
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`depiction of adult spa/fetish photography, SPAFETISH owns no spas & is a multi-
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`level marketing organization selling overpriced soap.
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`5 . Very, very, questionable.
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`6. This board will determine her rights.
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`7. Mr. Busch has made substantial investments as well; as evidenced by the opposer’s
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`demands for intellectual property, profits etc. contained in Exhibit “A” Extortion
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`letter
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`8. No opposition
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`9. No opposition
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`9a. USPTO search found no confusion during original search. In 2007 Ms.
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`McCaskill made a conscious decision to reverse the words Fetish Spa in an attempt to
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`create a unique name for her company. At that time she could have applied for the
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`trademark Fetish Spa, FetishSpa and other trade names. She failed to do that, relying
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`on her spelling and word reversal to create her unique brand and eliminate confusion.
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`10.
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`Opposer has deliberately created confusion on the intemet through the use of
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`search engine keywords.
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`11.
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`Opposer is a intemet retailer seller of overpriced soap products whereas Mr.
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`Busch is a professional photographer. It is extremely difficult to confuse the two.
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`12.
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`Mr. Busch finds the unsubstantiated accusation of pornography in the public
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`record to be highly defamatory. He also finds the oppositions self described
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`“wholesome SPAFETISH” as self serving and un-proven. Mr. Busch is a
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`nationally recognized photographer specializing in adult and fetish photography.
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`All photography produced by Mr. Busch complies with title18 U.S.C.2257. The
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`disclaimer presented as evidence by the opposer is standard for adult photography
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`to insure persons who are not legally able or persons who prefer not to view this
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`content will not enter the site. Ms. McCaski1l may be less than wholesome as her
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`previous demands to Mr. Busch may constitute extortion; a felony under the
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`statutes of the State of Michigan. THE MICHIGAN PENAL CODE (EXCERPT) Act 328
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`of 1931, 750.213 Malicious threats to extort money. Sec. 213.Ma|icious threats to extort
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`money. ”Any person who shall, either orally or by a written or printed communication,
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`maliciously threaten to accuse another of any crime or offense, or shall orally or by any written
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`or printed communication maliciously threaten any injury to the person or property or mother,
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`father, husband, wife or child of another with intent thereby to extort money or any pecuniary
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`advantage whatever, or with intent to compel the person so threatened to do or refrain from
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`doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the
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`state prison not more than 20 years or by a fine of not more than 10,000 dollars.
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`13.
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`In dispute
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`14.
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`Opposer’s mark is clearly dissimilar to defendants as proven by previous
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`searches.
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`15. Opposer may be guilty of felony fraud charges in the State of Michigan as a result
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`of the extortion letter.
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`16. Opposer’s mark is clearly dissimilar to defendants by her own intention of
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`creating a unique brand name by word reversal.
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`17. Opposer has failed to register or pay fees associated with the claims presented in
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`this pleading and Mr. Busch has rights to the name Fetish Spa by following
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`proper filing procedures prior to Ms. McCaskill’s claiming ownership of that
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`mark.
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`18. Opposer has failed to register, or pay fees associated, with the claims to the use of
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`the words Fetish Spa.
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`19. Defendant has legal right to the trade name FetishSpa by nature of properly filing
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`and paying fees prior to Ms. McCaskill’s claim to the name. Opposer has publically
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`defamed the reputation of James L Busch by filing unsubstantiated and fabricated
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`statements and claims, delayed proper use of trademarked intellectual property and
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`demanded extortion bounty, by proxy.
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`Surnrnery of Defendant’s position:
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`1.
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`Opposer has no claim because she failed to register the words Fetish Spa prior to
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`defendant’s application and payment of fees; and searches by all parties found no
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`confusion.
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`2. Opposer has no claim as she owns no trademarks in International Class 042
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`“Stock photography services, namely, leasing reproduction rights of photographs
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`and transparencies to others,”
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`3. Defendant prays that the examiner will recognize Ms. McCaskill’s claims as
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`invalid.
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`Date: June 09, 2008
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`Respectfully submitted,
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`/James L Buschl
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`8126 1015‘. Street Ct E.
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`Puyallup, WA. 98373-1333
`425-765-7487
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`Email: jopmedia@aol.com
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`

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`Attachment “A”
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`Extortion Letter
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`FROM THE DESK OF ANDREW M. GOLDSTEIN
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`P.O. Box 721103 Berkley, Michigan 48072 Phone: 248-263-2114 Email:
`LegalDept®SpaFetish.com
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`VIA CERTIFIED MAIL (RETURN RECEIPT REQUESTED)
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`September 19, 2007
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`James L. Busch JOPMEDIA 8126 101ST Street CT E Puyallup, WA 98373-1333
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`RE: Infringement of SPAFETISH trademark Trademark Serial Number: 78659333 Trademark
`Registration Number: 3224023 First Used In Commerce: July 1998
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`Dear Mr. Busch:
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`I represent Stacy N. McCaskill ("Ms. McCaskill"), owner of registered United States Federal
`Trademark: SPAFETISH - Serial Number 78659333, as well as Spa Fetish Corporation,
`SpaFetish, LLC and the domain names of SPAFETISH.COM, SPAFETISH.NET,
`SPAFETISH.BIZ and SPAFETISH.US.
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`It has recently come to our attention that you are the owner of the domain name
`www.FetishSpa.net ("the Domain Name"). Your registration and use of the Domain Name is in
`violation of the Anticybersquatting Consumer Protection Act (ACPA) of 1999, which is
`embodied in the Lanham Act S. 43(d).
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`As you are no doubt aware, SPAFETISH is the trademark used to identify a popular brand of spa
`products, located at http ;//wvvwSpaFetish.com. Not only is the Domain Name confusingly
`similar to the famous SPAFETISH trademark, it is essentially identical. It is fiilly evident that
`your usage of the Domain Name is a calculated act of bad faith enacted to deliberately promote
`consumer fraud and public confusion in order that you may divert consumers from Ms.
`McCaskill's SPAFETISH mark and online location to the Domain Name. This activity impairs
`fair economic commerce and deprives Ms. McCaskill of substantial revenues; thereby causing
`you to be liable to Ms. McCaskill in every state in which you have made sales. Your activities are
`unlawful and constitute unfair competition, intentional trademark infiingement, trademark
`dilution, false designation of origin and cybersquatting in violation of the Lanham Act as well as
`state and common law.
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`

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`James L. Busch Page 2,
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`Furthermore, in violation of the Federal Trademark Act (FTDA) 15 U.S.C. 1125 (c)(2) the
`Domain Name is deliberately trading on the goodwill of the SPAFETISH mark to dilute the
`renowned mark for your unsavory benefit. For nearly a decade, Ms. McCaskill has expended
`considerable time, money and good faith to establish substantial and exclusive goodwill, as well
`as an esteemed reputation in connection with her SPAFETISH mark. As a result of her efforts, the
`SPAFETISH mark has become a famous mark and a property right of immense value.
`Conversely, FetishSpa.net is a site used to promote pornography and thus tarnishes the goodwill
`and good name of the wholesome SPAFETISH mark, by linking it with the Domain Name and
`services that have inherently negative associations. Stated more broadly, existence of the Domain
`Name displaces the public's positive feelings about the well-respected SPAFETISH mark with
`feelings that are negative and untoward. The foregoing being factual, the Domain Name is an
`unambiguous case of dilution by tarnishing (associating the renowned and honorable
`SPAFETISH mark with the lewd business of the Domain Name) and by blurring the SPAFETISH
`mark through linking SPAFETISH with FetishSpa.net, the unauthorized and unlawfiil Domain
`Name.
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`Moreover, your use of the Domain Name further constitutes trademark infringement and dilution
`of Ms. McCaskill's SPAFETISH mark owing to the fact that it reduces the public's perception that
`the mark signifies something unique, singular or particular. Further, the Domain Name lessens
`Ms. McCaskill's capacity to distinguish her goods and services under her famous SPAFETISH
`mark. The Domain Name's unlawfill presence in the marketplace has also promoted and
`continues to promote unfair competition between the prominent SPAFETISH mark and the
`Domain Name.
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`By willfully treading upon Ms. McCaskill's renowned SPAFETISH mark, you have severely
`violated her rights. In concert with that fact, we are prepared to exhaust all possible legal
`remedies to stop your blatant misappropriation of the SPAFETISH trademark and good name.
`The Lanham Act provides various remedies for trademark infringement, dilution, blurring and
`tarnishing, including but not limited to: (i) preliminary and permanent injunctive relief, (ii)
`money damages, (iii) any profits you have enjoyed as a result of your unlawfiil acts, (iiii)
`reimbursement of Ms. McCaskill's attorney's fees resulting from your blatant and intentional acts
`of bad faith, and (v) compensation for damage to Ms. McCaskill's renowned SPAFETISH mark
`and goodwill.
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`In View of your infringement upon the SPAFETISH trademark, we hereby demand that you,
`James L. Busch, as well as JOP MEDIA, its employees, agents, vendors and all those afiiliated
`thereto, immediately and forever cease and desist with the use of FetishSpa.net, any and all
`business conducted under the unlawful name of FetishSpa, as well as all other business that
`dilutes, tamishes, causes the likelihood of confusion and deceives the public. Clearly stated, we
`hereby demand that you take the following steps:
`1. Disable the www.fetishspa.net website, cease and desist with any and all use of the Domain
`name, and immediately surrender the domain name to Stacy N. McCaskill.
`2. Identify and agree to convey to Ms. McCaskill's possession any and all materials that contain
`the FetishSpa name.
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`

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`James L. Busch Page 3,
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`3. Identify and agree to transfer to Ms. McCaskill any other domain names registered by James L.
`Busch, JOP MEDIA, its employees, agents and all those affiliated thereto that contain the
`FetishSpa name or are confusingly similar to the SPAFETISH mark.
`4. Provide Ms. McCaskill with a notarized letter of consent which fixlly documents and verifies
`your intention (James L. Busch), as well as the intention of JOP MEDIA, its employees, agents
`and all those affiliated thereto, of immediately and forever ceases and desisting from using the
`FetishSpa nam —- or any variation thereof that is likely to cause confusion or dilution of the
`famous SPAFETISH trademark.
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`In cooperation with the foregoing, we must demand that you provide us with the effects requested
`in 1-4, within 10 calendar days or, precisely stated, no later than September 29,2007.
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`If you fail to comply with these demands by September 29, 2007, I will have no choice but to
`recommend that Ms. McCaskill move forward to take all necessary legal action against you, as
`well as JOP MEDIA, its employees, agents and all those affiliated thereto in order to compel
`cessation of the illegal activities. Should such steps be a necessity, Ms. McCaskill will then
`demand to know the following: (i) date you began using your infringing mark in commerce, (ii)
`the states in which you have conducted business under the unlawful FetishSpa name, (iii) a full
`accounting of all revenue resulting from use of the infringing name.
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`Additionally, Ms. McCaskill will also seek to recover any and all profits that you have enjoyed at
`her expense and the exploitation of the SPAFETISH mark. What is more, we will seek to recover
`damages for loss as a result of you tarnishing the SPAFETISH mark and your willful dilution of
`same, as well as compensation for injury to Ms. McCaskill's goodwill, and attorney's fees
`resulting from your blatant and intentional acts of bad faith.
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`This letter is sent without prejudice. Nothing herein is intended by us, nor should it be construed
`by you, as a waiver or relinquishment of any rights or remedies which Ms. McCaskill has in this
`matter, and all such rights and remedies are hereby specifically reserved.
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`~tru'JJJ p4t"
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`~w M. Goldstein SpaFetish Legal Department
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`

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`Certificate of Service
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`Service of this; Answer to Opposition Proceeding # 91183923 has been sent to the
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`Opposer by USPS Express mail; Certified 7007 2560 0002 5339 8322 postmarked
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`06/09/2008.
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`STACY N McCASKILL
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`PO BOX 882
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`FARMINGTON, MICHIGAN
`48332-0882
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`1
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`James L Buschl
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`

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`Certificate of Service
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`Service of this; Answer to Opposition Proceeding # 91183923 has been sent to the
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`USPTO by USPS priority mail; Certified 7007 2560 0002 5339 8329 postmarked
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`06/09/2008.
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`USPTO
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`TRADEMARK TRIAL & APPEAL BOARD
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`PO BOX 1451
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`ARLINGTON, VA. 22313-1451
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` ames L Busch/