throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA299744
`ESTTA Tracking number:
`08/07/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91189980
`Defendant
`The Modern Group, Ltd.
`JAN K. SIMPSON
`FULBRIGHT & JAWORSKI LLP
`1301 MCKINNEY ST STE 5100
`HOUSTON, TX 77010-3095
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`DOIPDocket@Fulbright.com, efrazier@fulbright.com, mdelflache@fulbright.com
`Motion to Dismiss - Rule 12(b)
`Erin Frazier
`DOIPDocket@Fulbright.com, efrazier@fulbright.com, mdelflache@fulbright.com
`/Erin Frazier/
`08/07/2009
`Modern's Motion to Dismiss.pdf ( 14 pages )(502050 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`NATIONAL OILWELL VARCO, L.P.
`
`Opposer,
`
`v.
`
`THE MODERN GROUP, LTD.
`
`Applicant.
`
`omoooamoooaooaoocoowo
`
`Opposition No. 91189980
`Serial No. 77/462,382
`Mark: CONTINENTAL EMSCO
`
`APPLICANT’S COMBINED MOTION TO DISMISS OPPOSER’S FRAUD
`ALLEGATIONS AND RELATED CLAIM AND MOTION TO STRIKE PARAGRAPHS
`10-13 IN THE NOTICE OF OPPOSITION AND MEMORANDUM IN SUPPORT
`
`Pursuant to Fed. R. Civ. P.
`
`l2(b)(6) and 37 C.F.R. § 2.116, The Modern Group, Ltd.
`
`(“Applicant”) moves to dismiss National Oilwell Varco, L.P.’s (“Opposer”) fraud allegations and
`
`related claim for failure to state a claim. Opposer fails to plead fraud with particularity as
`
`required by Fed. R. Civ. P. 9(b).
`
`1.
`
`PROCEDURAL HISTORY
`
`Opposer filed a Notice of Opposition against applicant’s Trademark Application No.
`
`77/462,382 for
`
`the mark CONTINENTAL EMSCO )
`
`(“Opposition”)
`
`(Opposition No.
`
`91189980). Among other assertions, Opposer alleges that Applicant committed fraud upon the
`
`United States Patent and Trademark Office (“USPTO”) (Opposition W 10-13). Opposer accuses
`
`Applicant of fraudulent misrepresentation regarding Applicant’s sworn declaration as to
`
`ownership of the CONTINENTAL EMSCO mark and as to the rights of others to use the mark.
`
`However, Opposer fails to allege sufficient details as to the facts surrounding Applicant’s
`
`allegedly fraudulent acts as required by law. Therefore, Applicant moves to dismiss Opposer’s
`
`fraud allegations and the related fraud claim and strike Paragraphs 10-13 in the Opposition.
`
`806073131
`
`— 1 -
`
`

`
`II.
`
`LEGAL A UTHOR]TY
`
`Pursuant to 37 C.F.R. § 2.116(a), a pleading that asserts fraud as a ground for opposition
`
`of an application must satisfy Fed. R. Civ. P. 9(b). Fed. R. Civ. P. 9(b) requires that “[i]n all
`
`averrnents of fraud or mistake, the circumstances constituting fraud or mistake shall be stated
`
`with particularity. Fed. R. Civ. P. 9(b). Specifically, pleading fraud with particularity requires
`
`the allegations include “the time, place and content of the false representation,
`
`the fact
`
`misrepresented, and what was obtained or given up as a consequence of the fraud. ” WR. Grace
`
`& Co. v. Ariz. Feeds 195 U.S.P.Q. (BNA) 670, 672 (Comm’r Pat. 1977) (emphasis added). The
`
`Federal Circuit has similarly acknowledged that pleading fraud requires “identification of the
`
`specific who, what, when, where, and how of the material misrepresentation or omission
`
`committed before the PTO. Exergen Corp. v. Wal-Mart Stores, Inc. No. 2006-1491, 2007-1180
`
`slip. op. at 22 (Fed. Cir. August 4, 2009) (applying requirements of Fed. R. Civ. P. 9(b) to a
`
`pleaded allegation of inequitable conduct in a patent infringement case).
`
`The Trademark Trial and Appeal Board (“TTAB”) has four requisite elements for
`
`pleading fraud: (1) another use of the same or a confusingly similar mark existed at the time the
`
`oath was signed; (2) the other user had legal rights in the mark superior to the applicant’s rights;
`
`(3) applicant had actual knowledge that the other user had rights in the mark superior to
`
`applicant’s and either believed that a likelihood of confusion would result from the ap-plicant’s
`
`use of its mark or had no reasonable basis for believing otherwise; and (4) the appllicant,
`
`in
`
`failing to disclose these facts to the Trademark Office, intended to procure a registration to which
`
`the applicant was not entitled.
`
`Intellimedia Sports Inc. v. Intellimedia Corp., 43 U.S.P.Q.2d
`
`(BNA) 1203, 1207 (T.T.A.B. 1997); See also, Ohio State University v. Ohio University, 51
`
`U.S.P.Q.2d (BNA) 1289, 1293 (T.T.A.B. 1999).
`
`80607313.]
`
`- 2 -
`
`

`
`At a minimum, Opposer fails to plead the necessary requirements of the third and fourth
`
`elements of fraud as mandated by the TTAB
`
`III.
`
`ARGUMENT
`
`A.
`
`Opposer Fails to Sufficiently Plead the Third element offraud — Actual Knowledge
`
`and Timing
`
`In order to sufficiently plead the third element of fraud, Opposer must allege facts that, if
`
`proven, demonstrate that the applicant actually knew that a prior user had rights in the mark
`
`superior to applicant’s and either believed that a likelihood of confusion would result from the
`
`applicant’s use of its mark or had no reasonable basis for believing otherwise.
`
`Intellimedia, 43
`
`U.S.P.Q.2d at 1207.
`
`1.
`
`Opposer Fails to Plead the That Applicant Held the Reguisite State of Mind —
`
`Actual Knowledge
`
`a
`
`A licant’s declaration is not a basis to lead fraud
`
`Fraud requires that Applicant had actual knowledge of Opposer’s superior rights. The
`
`TTAB notes in Intellimedia that it is nearly impossible to prove fraud by relying on applicant's
`
`declaration because the assertions of ownership and exclusive use set forth in the declaration are
`
`based on the applicant's belief. 43 U.S.P.Q.2d at 1206. (citations omitted).
`
`In paragraph 12 of
`
`the Opposition, Opposer makes the same flawed argument using Applicant’s statement in its
`
`declaration. Specifically, Opposer states that:
`
`80607313.]
`
`— 3 -
`
`

`
`[I]n the declaration filed with the ‘382 Application, Applicant stated that, to the
`best of Applicant’s knowledge and belief “no other person has the right to use
`such mark in commerce either in the identical form thereof or in such near
`resemblance thereto as to be likely, when used on or in connection with the goods
`of such other person, to cause confusion or to cause mistake, or to deceive.” This
`statement
`is false, was material
`to examination and publication of the ‘382
`Application, and was made under circumstances in which Applicant knew or
`should have known it was false.
`
`(Opposition ll 12). Since the Intellimedia case, the TTAB has spoken again on this very issue in
`
`Galleon v. Havana Club Holding, 2004 TTAB Lexis 38, *51 (T.T.A.B. 2004), finding that “it is
`
`not fraud to state in the application oath that one ‘believes himself, or the firm, corporation or
`
`association in whose behalf he makes the verification, to be the owner of the mark sought to be
`
`registered” (citations omitted).
`
`Opposer is mistaken in relying on Applicant’s declaration as a basis to support an
`
`allegation of fraud.
`
`(bl
`
`Opposer’s remaining paragraphs also fail to provide any support for actual
`
`knowledge
`
`A petitioner must allege that the defendant was actually aware of petitioner’s glam
`
`Qgfl. Intellimedia, 43 U.S.P.Q.2d at 1207. (emphasis added).
`
`In paragraph 10, Opposer merely
`
`pleads, by example,
`
`that Applicant hired certain persons previously employed by Opposer
`
`without drawing any connection to anything. Opposer fails to allege how its former employees
`
`acquired §1_<_:tpa_l knowledge as to Opposer’s supposed use of the CONTINENTAL EMSCO mark.
`
`Opposer does not provide any basis as to when these former employees learned this information,
`
`or whether these employees knew anflhing about Opposer’s use at
`
`the time Applicant’s
`
`declaration was executed.
`
`80607313.]
`
`- 4 -
`
`

`
`Then, in the next paragraph, Oppose pleads on information and belief that Applicant
`
`was, at one point in time, aware of Opposer’s prior use of Opposer’s Marks. (Opposition '[[11)
`
`However, Opposer fails to plead that Applicant knew Opposer held superior rights in the mark,
`
`but prefaces such with an “on information and belief’ qualification.. A well accepted principle
`
`of federal pleading is that averments of fraud may not be alleged upon “information and belief’
`
`unless the facts are peculiarly within the defendant’s knowledge, in which case the allegations
`
`“must be accompanied by a statement of facts upon which the belief is based.” Lasky v.
`
`Shearson Lehman Bros. Inc. 139 F.R.D. 597, 598 (S.D.N.Y. 1991) (emphasis added); See also 9
`
`Paul Sullivan Tennis Sportswear, Inc. v. Balth. Blickle’s Wwe, 213 U.S.P.Q. (BNA) 390, 393
`
`(T.T.A.B. 1982).
`
`In paragraph 12, Opposer mistakenly attempts to rely on the declaration having a belief
`
`qualification as noted above.
`
`Recognizing it has no factual basis to assert the essential actual knowledge prong of
`
`element three, Opposer then attempts in paragraph 13 to gloss over the obvious deficiencies by
`
`making mere conclusory statements that, at the time the declaration was filed, Applicant was
`
`“aware of, or at the very least should have been aware of, Opposer’s prior use of Opposer’s
`
`Marks”, that the declaration statement was material and if that statement had not been included
`
`the application would have been rejected, and finally that Applicant’s employees “were aware of
`
`or, at the very least, should have been aware of, Opposer’s prior use of Opposer’s Marks”
`
`(Opposition 1113). Even assuming Applicant knew that Opposer had made use of Opposer’s
`
`mark at some point in the past, Applicant’s knowledge of “prior use” by Opposer does not form a
`
`basis to conclude that Applicant knew Opposer held superior rights in the Opposer’s Marks.
`
`Opposer must allege something more than simply that Applicant knew of Opposer’s prior use.
`
`806073131
`
`- 5 -
`
`

`
`Intellimedia Sports Inc.
`
`v. Intellimedia Corp., 43 U.S.P.Q.2d (BNA) 1203, 1207 (T.T.A.B.
`
`1997); See also, Galleon v. Havana Club Holding, 2004 TTAB Lexis 38, *55-56 (T.T.A.B.
`
`2004). Opposer must specify facts that, if proven, would establish that Applicant believed
`
`Opposer had superior rights to the mark and that Applicant's use of mark would create a
`
`likelihood of confusion. Intellimedia, 43 U.S.P.Q.2d at 1207.
`
`2.
`
`Opposer Fails to Plead the Proper Timeframe for Applicant’s Knowledge
`
`Opposer must also sufficiently plead facts that demonstrate the applicant held the
`
`requisite knowledge at the time the declaration was executed. King Automotive, Inc. v. Speedy
`
`Muffler King,
`
`Inc. 667 F.2d 1008, 1010-11, 212 U.S.P.Q. (BNA) 801, 803 (C.C.P.A. 1981)
`
`(emphasis added).
`
`It is not sufficient to plead and prove applicant was aware of the same or
`
`similar mark used by a third party prior to the applicant’s priority date; the party asserting fraud
`
`must also allege and prove that the applicant was aware of such use at the time the declaration
`
`was executed.
`
`Id. Opposer merely alleges by example that Applicant hired nine people from
`
`Opposer and then somehow, on information and belief, Applicant was not the owner of the mark
`
`at issue.
`
`(Opposition W10-11). But, all nine people listed have worked for Applicant since at
`
`least July 2007, nearly one year prior to the execution of Applicant’s declaration. Regardless of
`
`when these employees left Opposer, and what they knew or did not know at that time, Opposer
`
`fails to connect this alleged knowledge to Applicant’s knowledge at the time the declaration was
`
`executed. Because Opposer fails to connect App1icant’s knowledge to the time when the
`
`declaration was executed, Opposer’s pleading necessarily fails to sufficiently plead fraud.
`
`At the very minimum, Opposer should have waited to conduct discovery and then move
`
`to amend the Notice of Opposition to include factual statements obtained in discovery. This is
`
`806073131
`
`- 6 -
`
`

`
`the normal and proper process if Opposer is without sufficient information to properly allege
`
`fraud with the requisite particularity. See Warner-Lambert Co. v. Teva Pharms. USA, Inc., 418
`
`F.3d 1326, 1333-34 (Fed. Cir. 2005).
`
`3.
`
`Opposer Fails to Plead the That Applicant Knew the Proper Information
`
`Opposer must also allege something more than Applicant believed Opposer previously
`
`used the mark. Irztellimedia, 43 U.S.P.Q.2d at 1207. Opposer must specify facts that, if proven,
`
`would establish that Applicant believed Opposer had superior rights to the mark and that
`
`Applicant's use of mark would create a likelihood of confusion.
`
`Intellimedia, 43 U.S.P.Q.2d at
`
`1207. (emphasis added). Opposer fails to allege any facts that would indicate Applicant believed
`
`Opposer had superior rights in Opposer’s Marks.
`
`In fact, Opposer’s sole registration (No.
`
`2,027,364) for EMSCO, which is only a portion of Applicant’s mark CONTINENTAL EMSCO
`
`was cancelled in October of 2007 for failure to renew. This cancellation occurred nearly six
`
`months before Applicant signed the declaration and filed its application for CONTINENTAL
`
`EMSCO.
`
`If anything, such information provides the public with reasonable and adequate belief
`
`to conclude that Opposer had abandoned its rights to the EMSCO mark. See Exhibit A, a copy
`
`of TARR records for Opposer’s expired registration.
`
`Nevertheless, Opposer alleges that Applicant’s declaration statement was material
`
`because “absent that false statement,
`
`the ‘382 Application would have been rejected under
`
`U.S.C. § l052(d) based on likelihood of confusion between Applicant’s Mark and Opposer’s
`
`Mark.” (Opposition fi[l3). Opposer, however, fails to allege any prior application or enforceable
`
`registration for a same or confusingly similar mark which would have caused the Trademark
`
`Office to reject
`
`the Applicant’s Application. Why would Applicant
`
`identify a cancelled
`
`registration as an indication of a currently active use with superior rights when the facts indicate
`
`80607313.]
`
`- 7 -
`
`

`
`the very opposite‘? Opposer simply fails to allege any facts that indicate Applicant believed
`
`Opposer had superior rights in Opposer’s Marks.
`
`B.
`
`Opposerfails to sufficiently pleadfourth element offraud —Applicant’s Intent
`
`To sufficiently plead the fourth element of fraud, Opposer must also allege that the
`
`applicant, in failing to disclose a third party’s superior rights to the Trademark Office, intended
`
`to procure a registration to which the applicant was not entitled. A party alleging fraud must
`
`provide factual allegations demonstrating that the applicant withheld the relevant information
`
`from the Trademark Office with intent to mislead and to obtain a registration to which applicant
`
`knew it was not entitled. King Automotive, Inc. v. Speedy Mufller King, Inc. 667 F.2d 1008, 1011
`
`n.4, 212 U.S.P.Q. (BNA) 801, 803 (C.C.P.A. 1981). Opposer merely states in conclusory fashion
`
`that App1icant’s false statements were made “knowingly,” but provides no other factual
`
`allegations as to Applicant’s state of mind. (Opposition 1113.)
`
`Opposer fails to plead that Applicant held the requisite intent to obtain a registration to
`
`which Applicant was not entitled. A fraudulent statement requires an intent to deceive. Paul
`
`Sullivan Tennis Sportswear, 213 U.S.P.Q. at 393 (emphasis added). The TTAB has established
`
`that an intent to deceive is something more than a false statement, which “may be occasioned by
`
`a misunderstanding or inadvertence, a mere negligent omission, or the like.” Id. (stating that “a
`
`fraudulent misrepresentation consequently involves
`
`an intent
`
`to deceive and must be
`
`distinguished from a false representation”) Opposer, referring to Applicant’s declaration,
`
`merely asserts that “Applicant knew or should have known it was false” (Opposition 1112). This
`
`is wholly inadequate. Even if true, this would not rise to the level of an intent to deceive
`
`required for pleading and proving the fourth element of fraud. Opposer fails to allege facts
`
`806073131
`
`- 8 -
`
`

`
`sufficient to demonstrate that Applicant held the requisite intent required to prove the fourth
`
`element of fraud.
`
`IV.
`
`CONCLUSION
`
`The Notice of Opposition, even if liberally construed, does not provide sufficient
`
`allegations to satisfy the heightened pleading requirements regarding allegations of fraud. As
`
`such, Applicant requests the dismissal of Opposer’s fraud claims pursuant to Fed. R. Civ. P.
`
`l2(b)(6) for failure to state a claim upon which relief can be granted, and that Paragraphs 10-13
`
`of the Notice of Opposition be struck.
`
`DATED: August 7, 2009
`
`Respectfully submitted,
`
`/s/ Marc. L. Delflache
`
`Marc L. Delflache
`
`Email: mdelflache@Fulbright.com
`Erin B. Frazier
`
`Email: efrazier@Fulbright.com
`FULBRIGHT & JAWORSKI, L.L.P.
`2200 Ross Ave.
`
`Suite 2800
`
`Dallas, TX 75201
`
`Telephone: (214) 855-8000
`Fax: (214) 855-8200
`Email: DOlPDocket@Fulbright.com
`
`ATTORNEYS FOR THE MODERN
`
`GROUP, LTD.
`
`806073131
`
`- 9 -
`
`

`
`CERTIFICATE OF SERVICE
`
`This is to certify that a copy of the foregoing APPLICANT’S COMBINED MOTl[ON TO
`DISMISS OPPOSER’S FRAUD ALLEGATION AND RELATED CLAIM AND MOTION TO
`STRIKE PARAGRAPHS 10-13 IN THE NOTICE OF OPPOSITION AND MEMORANDUM
`IN SUPPORT and Associated Exhibit A were served by First Class Mail, postage prepaid, on
`August 7, 2009, upon Opposer’s Attorney at the address below:
`
`Gregory L. Maag
`Conley Rose, P.C.
`P.O. Box 3267
`
`Houston, TX 77253-3267
`UNITED STATES
`
` ~
`
`Erin B. Frazier
`
`806073131
`
`-10-
`
`

`
`EXHIBIT A
`
`

`
`Latest Status Info
`
`Page 1 0f3
`
`Thank you for your request. Here are the latest results from the tL
`
`This page was generated by the TARR system on 2009-08-07 13:57:22 ET
`
`Serial Number: 74412475 Assignment Information
`
`Trademark Document Retrieval
`
`Registration Number: 2027364
`
`Mark (words only): EMSCO
`
`Standard Character claim: No
`
`Current Status: Registration canceled under Section 8.
`
`Date of Status: 2007-10-06
`
`Filing Date: 1993-07-13
`
`Transformed into a National Application: No
`
`Registration Date: 1996-12-31
`
`Register: Principal
`
`Law Office Assigned: LAW OFFICE 104
`
`If you are the applicant or applicant's attorney and have questions about this file, please contact the
`Trademark Assistance Center at TrademarkAssistanceCenter@uspto.gov
`
`Current Location: 40S -Scanning On Demand
`
`Date In Location: 2006-09-14
`
`LAST APPLICANT(S)/OWNER(S) or RECORD
`
`1. NATIONAL-OILWELL, L.P.
`
`Address:
`
`NATIONAL-OILWELL, L.P.
`10000 RICHMOND AVENUE, SUITE 400
`HOUSTON, TX 770424200
`United States
`
`Legal Entity Type: Limited Partnership
`State or Country Where Organized: Delaware
`
`GOODS AND/OR SERVICES
`
`International Class: 007
`
`Class Status: Section 8 - Cancelled
`oil and gas processing equipment; namely, positive displacement pumps
`Basis: 1(a)
`First Use Date: 1995-02-14
`
`First Use in Commerce Date: 1995-02-14
`
`http://tarr.uspto.gov/servlet/tarr?regser=seria1&entry=74412475
`
`08/07/2009
`
`

`
`Latest Status Info
`
`Page 2 of 3
`
`International Class: 01 1
`
`Class Status: Section 8 - Cancelled
`
`Basis: 1(a)
`First Use Date: 1994-11-30
`
`First Use in Commerce Date: 1994-11-30
`
`Prior Registration Number(s):
`370912
`
`(NOT AVAILABLE)
`
`ADDITIONAL INFORMATION
`
`MADRID PROTOCOL INFORMATION
`
`PROSECUTION HISTORY
`
`NOTE: To view any document referenced below, click on the link to "Trademark Document Retrieval" shown
`near the top of this page.
`
`2007-10-06 - Canceled Section 8 (10-year)/Expired Section 9
`
`2006-09-14 - Case File In TICRS
`
`2003-1 1-20 - Partial Section 8 (6-year) accepted & Section 15 acknowledged
`
`2003-06-02 - Post Registration action mailed Section 8 & 15
`
`2002-12-30 - Section 8 (6-year) and Section 15 Filed
`
`2002-12-30 - TEAS Section 8 & 15 Received
`
`1996-12-31 - Registered - Principal Register
`
`1996-10-16 - Allowed for Registration - Principal Register (SOU accepted)
`
`1996-07-26 - Communication received from applicant
`
`1996-05-09 - Non-final action mailed
`
`1996-04-22 - Assigned To Examiner
`
`1996-04-04 - Statement of use processing complete
`
`1996-04-04 - Extension 1 granted
`
`1996-01-30 - Extension 1 filed
`
`1996-01-30 - Amendment to Use filed
`
`1995-08-15 - Noa Mailed - SOU Required From Applicant
`
`http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=74412475
`
`08/07/2009
`
`

`
`Latest Status Info
`
`Page 3 Of-3
`
`1995-05-23 - Published for opposition
`
`1995-04-21 - Notice of publication
`
`1995-01-24 - Approved for Pub - Principal Register (Initial exam)
`
`1995-01-24 - Amendment to Use - Express withdrawal
`
`1994-12-12 - Communication received from applicant
`
`1994-06-28 - Non-final action mailed
`
`1994-06-27 - Previous allowance count withdrawn
`
`1994-06-14 - Approved for Pub - Principal Register (Initial exam)
`
`1994-06-13 - Amendment to Use approved
`
`1994-04-28 - Communication received from applicant
`
`1994-05-20 - Amendment to use processing complete
`
`1994-04-28 - Amendment to Use filed
`
`1993-1 1-08 - Non-final action mailed
`
`1993-10-20 - Assigned To Examiner
`
`ATTORNEY/CORRESPONDENT INFORMATION
`
`Attorney of Record
`JONATHAN M. PIERCE
`
`Correspondent
`JONATHAN M. PIERCE
`CONLEY ROSE PC
`P.O. BOX 3267
`
`HOUSTON, TX 77253-3267
`
`http://tarr.uspto.gov/servlet/tarr?regser=seria1&entry=74412475
`
`08/07/2009

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