Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`91 1 90424
`
`Defendant
`
`Remag Inc.
`REMAG INC.
`REMAG INC.
`31 QUINCY ST
`BROOKLYN, NY 11238
`
`brian@resourcemagon|ine.com
`Answer
`
`Adam Davids
`
`adam@adamdavids.com, robert@adamdavids.com
`/Adam Davidsl
`
`07/07/2009
`
`Source Answer 20090706.pdf ( 11 pages )(38127 bytes)
`Attny Decl 7-7—09.pdf ( 6 pages )(53228 bytes )
`Exhibit A — Source 7—07—09.pdf
`3 pages )(832419 bytes )
`Exhibit B — Source 7—07—09.pdf
`4 pages )(218555 bytes )
`Exhibit C — Source 7—07—09.pdf
`8 pages )(305886 bytes )
`Exhibit D — Source 7—07—09.pdf
`2 pages )(201531 bytes )
`Exhibit E — Source 7—07—09.pdf
`7 pages )(296444 bytes )
`Exhibit F — Source 7—07—09.pdf
`7 pages )(344919 bytes)
`Exhibit G — Source 7-07-09.
`pdf ( 39 pages )(2976231 bytes)
`Exhibit H — Source 7-07-09.p
`df ( 5 pages )(239609 bytes )
`Exhibit I — Source 7—07—09.pdf (51 pages )(3378578 bytes )
`Exhibit J — Source 7—07—09.pdf ( 14 pages )(595002 bytes )
`df
`Exhibit K — Source 7-07-09.p
`(3 pages )(196125 bytes)
`Exhibit L — Source 7—07—09.pdf ( 66 pages )(2270846 bytes)
`P
`Exhibit M — Source 7-07-09. df 4 pages )(320115 bytes)
`df
`Exhibit N — Source 7-07-09.p
`8 pages )(321238 bytes )
`df
`Exhibit 0 — Source 7-07-09.p
`14 pages )(616326 bytes)
`df
`Exhibit P — Source 7-07-09.p
`12 pages )(449604 bytes )
`df
`Exhibit Q — Source 7-07-09.p
`4 pages )(319963 bytes)
`df
`Exhibit R — Source 7-07-09.p
`4 pages )(235150 bytes )
`df
`Exhibits — Source 7-07-09.p
`3 pages )(247003 bytes )
`df
`Exhibit T — Source 7-07-09.p
`10 pages )(581254 bytes)
`df
`Exhibit U — Source 7-07-09.p
`4 pages )(225394 bytes )
`df
`Exhibit V — Source 7-07-09.p
`3 pages )(223744 bytes )
`Exhibit W — Source 7—07—09.pdf ( 2 pages )(205311 bytes)
`df
`Exhibit X — Source 7-07-09.p
`11 pages )(570243 bytes )
`df
`Exhibit Y — Source 7-07-09.p
`10 pages )(432618 bytes )
`Exhibit Z — Source 7—07—09.pdf
`7 pages )(317391 bytes)
`Exhibit AA — Source 7-07-
`09.pdf
`( 27 pages )(1035405 bytes )
`Exhibit BB - Source 7—07—09.pdf
`(9 pages )(314065 bytes)
`df
`Exhibit CC — Source 7-07-09.p
`( 13 pages )(496910 bytes)
`df
`Exhibit DD — Source 7-07-09.p
`( 14 pages )(524826 bytes)
`Exhibit EE - Source 7—07—09.pdf
`(3 pages )(187389 bytes)
`Exhibit FF - Source 7—07—09.pdf
`(4 pages )(258662 bytes )
`Exhibit GG — Source 7—07—09.pdf ( 14 pages )(482762 bytes )
`Exhibit HH — Source 7—07—09.pdf
`5 pages )(296589 bytes )
`Exhibit II — Source 7—07—09.pdf
`(
`pages )(258024 bytes )
`
`( 4
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA293813
`ESTTA Tracking number:
`07/07/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91190424
`Defendant
`Remag Inc.
`REMAG INC.
`REMAG INC.
`31 QUINCY ST
`BROOKLYN, NY 11238
`
`brian@resourcemagonline.com
`Answer
`Adam Davids
`adam@adamdavids.com, robert@adamdavids.com
`/Adam Davids/
`07/07/2009
`Source Answer 20090706.pdf ( 11 pages )(38127 bytes )
`Attny Decl 7-7-09.pdf ( 6 pages )(53228 bytes )
`Exhibit A - Source 7-07-09.pdf ( 3 pages )(832419 bytes )
`Exhibit B - Source 7-07-09.pdf ( 4 pages )(218555 bytes )
`Exhibit C - Source 7-07-09.pdf ( 8 pages )(305886 bytes )
`Exhibit D - Source 7-07-09.pdf ( 2 pages )(201531 bytes )
`Exhibit E - Source 7-07-09.pdf ( 7 pages )(296444 bytes )
`Exhibit F - Source 7-07-09.pdf ( 7 pages )(344919 bytes )
`Exhibit G - Source 7-07-09.pdf ( 39 pages )(2976231 bytes )
`Exhibit H - Source 7-07-09.pdf ( 5 pages )(239609 bytes )
`Exhibit I - Source 7-07-09.pdf ( 51 pages )(3378578 bytes )
`Exhibit J - Source 7-07-09.pdf ( 14 pages )(595002 bytes )
`Exhibit K - Source 7-07-09.pdf ( 3 pages )(196125 bytes )
`Exhibit L - Source 7-07-09.pdf ( 66 pages )(2270846 bytes )
`Exhibit M - Source 7-07-09.pdf ( 4 pages )(320115 bytes )
`Exhibit N - Source 7-07-09.pdf ( 8 pages )(321238 bytes )
`Exhibit O - Source 7-07-09.pdf ( 14 pages )(616326 bytes )
`Exhibit P - Source 7-07-09.pdf ( 12 pages )(449604 bytes )
`Exhibit Q - Source 7-07-09.pdf ( 4 pages )(319963 bytes )
`Exhibit R - Source 7-07-09.pdf ( 4 pages )(235150 bytes )
`Exhibit S - Source 7-07-09.pdf ( 3 pages )(247003 bytes )
`Exhibit T - Source 7-07-09.pdf ( 10 pages )(581254 bytes )
`Exhibit U - Source 7-07-09.pdf ( 4 pages )(225394 bytes )
`Exhibit V - Source 7-07-09.pdf ( 3 pages )(223744 bytes )
`Exhibit W - Source 7-07-09.pdf ( 2 pages )(205311 bytes )
`Exhibit X - Source 7-07-09.pdf ( 11 pages )(570243 bytes )
`Exhibit Y - Source 7-07-09.pdf ( 10 pages )(432618 bytes )
`Exhibit Z - Source 7-07-09.pdf ( 7 pages )(317391 bytes )
`Exhibit AA - Source 7-07-09.pdf ( 27 pages )(1035405 bytes )
`Exhibit BB - Source 7-07-09.pdf ( 9 pages )(314065 bytes )
`Exhibit CC - Source 7-07-09.pdf ( 13 pages )(496910 bytes )
`Exhibit DD - Source 7-07-09.pdf ( 14 pages )(524826 bytes )
`Exhibit EE - Source 7-07-09.pdf ( 3 pages )(187389 bytes )
`Exhibit FF - Source 7-07-09.pdf ( 4 pages )(258662 bytes )
`Exhibit GG - Source 7-07-09.pdf ( 14 pages )(482762 bytes )
`Exhibit HH - Source 7-07-09.pdf ( 5 pages )(296589 bytes )
`Exhibit II - Source 7-07-09.pdf ( 4 pages )(258024 bytes )
`
`

`
`Exhibit XX — Source 7-07-09.pdf ( 3 pages )(337040 bytes)
`
`Exhibit JJ — Source 7-07-09.pdf (6 pages )(243026 bytes)
`Exhibit KK — Source 7-07-09.pdf (9 pages )(330673 bytes)
`Exhibit LL — Source 7-07-09.pdf ( 9 pages )(554725 bytes)
`Exhibit MM — Source 7-07-09.pdf ( 3 pages )(249849 bytes)
`Exhibit NN — Source 7—07—09.pdf ( 11 pages )(478421 bytes)
`Exhibit 00 — Source 7-07—09.pdf (6 pages )(394165 bytes )
`Exhibit PP — Source 7-07-09.pdf (2 pages )(158602 bytes)
`Exhibit QQ — Source 7-07—09.pdf (3 pages )(340523 bytes )
`
`Exhibit RR — Source 7-07-09.pdf 3 pages )(338348 bytes )(
`Exhibit SS — Source 7-07-09.pdf ( 3 pages )(340540 bytes)
`Exhibit '|'|' — Source 7-07—09.pdf ( 3 pages )(332572 bytes )
`Exhibit UU — Source 7-07-09.pdf ( 3 pages )(339954 bytes )
`Exhibit VV — Source 7-07-09.pdf ( 3 pages )(342528 bytes)
`Exhibit WW — Source 7-07-09.pdf ( 3 pages )(334138 bytes)
`
`Exhibit JJ - Source 7-07-09.pdf ( 6 pages )(243026 bytes )
`Exhibit KK - Source 7-07-09.pdf ( 9 pages )(330673 bytes )
`Exhibit LL - Source 7-07-09.pdf ( 9 pages )(554725 bytes )
`Exhibit MM - Source 7-07-09.pdf ( 3 pages )(249849 bytes )
`Exhibit NN - Source 7-07-09.pdf ( 11 pages )(478421 bytes )
`Exhibit OO - Source 7-07-09.pdf ( 6 pages )(394165 bytes )
`Exhibit PP - Source 7-07-09.pdf ( 2 pages )(158602 bytes )
`Exhibit QQ - Source 7-07-09.pdf ( 3 pages )(340523 bytes )
`Exhibit RR - Source 7-07-09.pdf ( 3 pages )(338348 bytes )
`Exhibit SS - Source 7-07-09.pdf ( 3 pages )(340540 bytes )
`Exhibit TT - Source 7-07-09.pdf ( 3 pages )(332572 bytes )
`Exhibit UU - Source 7-07-09.pdf ( 3 pages )(339954 bytes )
`Exhibit VV - Source 7-07-09.pdf ( 3 pages )(342528 bytes )
`Exhibit WW - Source 7-07-09.pdf ( 3 pages )(334138 bytes )
`Exhibit XX - Source 7-07-09.pdf ( 3 pages )(337040 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`Opposition No.: 91190424
`Serial No. 77604959
`
`
`SOURCE ENTERPRISES, INC.,
`PREDECESSOR OF SOURCE
`PUBLICATIONS, LLC
`
`
`
`
`
`Opposer
`
`
`
`v.
`
`
`
`
`
`
`REMAG, INC.
`
`
`
`
`
`Applicant
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`Applicant, REMAG, INC., for its answer to the Notice of Opposition (the
`
`
`
`
`
`
`
`
`“Notice”) filed by SOURCE ENTERPRISES, INC., PREDECESSOR OF SOURCE
`
`PUBLICATIONS, LLC, against application for registration of Remag, Inc.’s trademark
`
`“RESOURCE MAGAZINE”, Serial No. 77/604,959 (“Applicant’s Mark”) in
`
`International Class 16, which was filed on October 31, 2008 and published in the Official
`
`Gazette on April 28, 2009, pleads and avers as follows:
`
`APPLICANT’S MARK DOES NOT CONSTITUTE A LIKELIHOOD OF
`CONFUSION UNDER 15 USC §§ 1114 OR 1125(a)
`
`1.
`
`Answering paragraph 1 of the Notice of Opposition, Applicant denies
`
`
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein, but avers that the records of the Patent and Trademark Office (“PTO”)
`
`speak for themselves. Applicant further avers that Source Enterprises, Inc.,
`
`upon information and belief, no longer exists or carries on business as a going
`
`concern.
`
`

`
`2.
`
`Answering paragraph 2 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein, but avers that the records of the PTO speak for themselves. Applicant
`
`further avers that Source Enterprises, Inc., upon information and belief, no
`
`longer exists or carries on business as a going concern, and that
`
`incontestability under section 15 of the Lanham Act has no bearing
`
`whatsoever on the scope of protection afforded to a trademark.
`
`3.
`
`Answering paragraph 3 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein, but avers that the records of the PTO speak for themselves.
`
`4.
`
`Answering paragraph 4 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein. Applicant further avers that Source Enterprises, Inc., upon
`
`information and belief, no longer exists or carries on business as a going
`
`concern, and that, when Source Enterprises, Inc., was a going concern it had a
`
`notorious reputation.
`
`5.
`
`Answering paragraph 5 of the Notice of Opposition, Applicant admits the
`
`allegations therein only in as much as Applicant filed the Application for
`
`Applicant’s Mark at issue without the assistance of legal counsel on October
`
`31, 2008 based upon the Mark’s prior use in commerce.
`
`6.
`
`Answering paragraph 6 of the Notice of Opposition, Applicant denies the
`
`allegations therein in their entirety. Applicant further avers that, upon
`
`information and belief and upon the vowel pronunciation key found in
`
`

`
`Webster’s Online Dictionary (attached as Exhibit A to the Declaration of
`
`Adam Davids, annexed hereto (hereinafter “Davids Decl.”)), Applicant’s
`
`Mark cannot create audible confusion because its pronunciation is clearly
`
`different than Opposer’s mark. Applicant further avers that the most common
`
`and preferred pronunciation by consumers of the “e” vowel within the word
`
`combination “the source”, is that the “the” is pronounced with a soft “e” or
`
`“schwa” sound similar to the “u” sound in the words “fun” or “up” whereas
`
`the “e” vowel sound of Applicant’s Mark, RESOURCE MAGAZINE, is
`
`pronounced with a long “e” sound as in the words “flee” or “see.”
`
`7.
`
`Answering paragraph 7 of the Notice of Opposition, Applicant denies the
`
`allegations therein except to the extent that Applicant has used the Mark in
`
`connection with the production and sale of a trade magazine for professional
`
`photographers. RESOURCE MAGAZINE is a quarterly magazine in
`
`continuous publication since September 2007 with a national circulation of
`
`twenty thousand (20,000). (See Davids Decl. ¶ 2).
`
`8.
`
`Answering paragraph 8 of the Notice of Opposition, Applicant denies the
`
`allegations therein except as to the allegation that Source Enterprises, Inc.,
`
`included editorial content and sections devoted to the topic of photography.
`
`Applicant denies knowledge or information sufficient to form a belief
`
`regarding all other allegations in paragraph 8, and avers that Source
`
`Enterprises Inc., upon information and belief and based upon the sample of
`
`creditors in the bankruptcy lawsuit against Source Enterprises, Inc. is
`
`notorious for withholding or denying compensation to professional
`
`

`
`photographers as can be evidenced by a partial list of photography industry
`
`creditors, including, but not limited to: Michele Asselin; Nazife Burcu Avsar;
`
`Bathhouse Studios; Brazen Enterprises; Digital Fusion; Getty Images, Inc.;
`
`Glasshaus Studio; Halley Resources, Inc.; Anderson Hopkins; Iron Brew
`
`Studio; Monte Isom; James Porto Photographer, Inc.; Jason Ivany Photograph,
`
`Inc.; Jennifer Sexsion Photography; John Turner Photo Rep; Kenji Toma
`
`Photography; Langella Photography, Inc.; The Lens and Repro Equipment
`
`Corp; London Features International (USA) Ltd; Mark Mann Photography,
`
`Inc.; Neo Studios; Photofest; Picture Ray Studio, LLC; Pro One Los Angeles;
`
`Q Studios, Inc.; Quixote Studios; Resolution Digital, Inc.; Maria Rosel; Jeff
`
`Sciortino; Joshua Scott; Rahav Segev; Adreanna L. Seymore; Brian Smith;
`
`Amy Dresser; The Space, Inc.; Stanley Kaplan Talent; Jefferson Steele; Sun
`
`Studios; Jason Tanaka-Blaney; and Jay Watson, a copy of these creditor
`
`claims are attached herein (See Exhibits B - OO to the Davids Decl.).
`
`9.
`
`Answering paragraph 9 of the Notice of Opposition, Applicant denies the
`
`allegations therein. Applicant further avers that, upon information and belief
`
`Applicant’s consumers, primarily professional photographers, reject Source
`
`Enterprises, Inc. products and services due to the company’s unsavory
`
`business practices and reputation for withholding and denying compensation
`
`to professional photographers, giving Applicant a strong incentive to not want
`
`or intend any association with Source Enterprises, Inc.
`
`

`
`10.
`
`Answering paragraph 10 of the Notice of Opposition, Applicant denies the
`
`allegations therein. Applicant further avers that Source Enterprises, Inc.’s or
`
`its alleged successor in interest has, in fact, filed an Intent to Use application
`
`with the PTO for what is essentially Applicant’s Mark: “RESOURCE” (Ser.
`
`No. 77719335) (attached as Exhibit PP to the Davids Decl.) in connection
`
`with “Magazines featuring entertainment, news, sports, fashion and youth
`
`culture,” swore under penalty of perjury that its bonafide intention is to use
`
`the mark RESOURCE within a magazine, and claimed no prior trademark
`
`rights as a basis for the application, (“Opposer’s ITU Application”). As such,
`
`Opposer perpetrates a ruse upon the Trademark Trial and Appeal Board
`
`(“TTAB”) causing a disrespectful and egregious waste of the Board’s time
`
`and resources. In fact, Source Enterprises, Inc. or its alleged successor in
`
`interest’s actual intention is to reap the benefit of the brand recognition and
`
`good will that Applicant’s Mark has acquired by re-branding itself to a mark
`
`that is virtually identical to Applicant’s Mark. (See Exhibit PP to the Davids
`
`Decl.) Applicant further avers that Applicant has used its Mark in commerce
`
`prior to its Application, and has superior rights, both in common law and
`
`before the PTO under the rules of the Trademark Manual of Examining
`
`Procedure (“TMEP”).
`
`
`
`APPLICANT VEHEMENTLY DOES NOT WANT ITS MARK TO BE
`ASSOCIATED WITH SOURCE ENTERPRISES, INC., AND
`THERE IS NO LIKELIHOOD OF DILUTION UNDER 15 USC §1125(c)
`
`
`

`
`11.
`
`Applicant repeats and realleges its answers and allegations in paragraphs 1-10
`
`as if set forth fully herein.
`
`12.
`
`Answering paragraph 12 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein, except that Applicant avers, upon information and belief, that Source
`
`Enterprises, Inc., has an unfavorable reputation.
`
`13.
`
`Answering paragraph 13 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein, and, in so far as they call for a legal conclusion, defers to the TTAB.
`
`14.
`
`Answering paragraph 14 of the Notice of Opposition, Applicant denies the
`
`allegations therein to the extent that they are materially inconsistent with
`
`Applicant’s allegation that Applicant, by virtue of its Mark’s actual use in
`
`commerce, has obtained superior rights to the Mark RESOURCE
`
`MAGAZINE in connection with a magazine serving the editorial and business
`
`needs of professional photographers. Applicant otherwise admits the
`
`remaining allegations therein.
`
`15.
`
`Answering paragraph 15 of the Notice of Opposition, Applicant denies
`
`knowledge or information sufficient to form a belief as to the allegations
`
`therein. Applicant further avers the portion of the allegation that states “long
`
`after the date on which Opposer’s THE SOURCE Mark became well known,”
`
`is overly vague, irrelevant, or otherwise calls for a legal conclusion, to which
`
`Applicant defers to the TTAB.
`
`

`
`16.
`
`Answering paragraph 16 of the Notice of Opposition, Applicant denies the
`
`allegations therein. Applicant further avers that under 15 USC
`
`§1125(c)(2)(b)(iii) Source Enterprises, Inc. has not and is not engaging in
`
`substantially exclusive use of the Mark, and has not alleged so in its Notice.
`
`Additionally, Applicant avers that under 15 USC §1125(c)(2)(b)(v) Applicant
`
`had and has no interest in or intention to create an association between the two
`
`marks at issue. In fact, Applicant vehemently wants no association whatsoever
`
`with Source Enterprises, Inc., a bankrupt entity notorious for, inter alia,
`
`withholding or denying payment to professional photographers, Applicant’s
`
`bread and butter customer base. (See Davids Decl. ¶ 2 and Exhibits B - OO
`
`attached thereto)
`
`17.
`
`Answering paragraph 17 of the Notice of Opposition, Applicant denies the
`
`allegations therein. Applicant specifically denies the allegation that its Mark
`
`and the mark of Source Enterprises, Inc. are “identical,” as the Panel may so
`
`note, and as evidenced by Opposer’s own ITU Application, Ser. No.
`
`77719335, attached as Exhibit PP to the Davids Decl.
`
`
`
`AFFIRMATIVE DEFENSES
`
`18.
`
`Applicant incorporates all prior pleadings in paragraphs 1-17 as if alleged
`
`herein.
`
`

`
`19.
`
`Applicant further affirmatively alleges, upon information and belief, that
`
`Source Enterprises, Inc. no longer exists and therefore has no standing to
`
`submit its Notice of Opposition or is not the proper party.
`
`20.
`
`Applicant further affirmatively alleges that the Notice of Opposition was
`
`submitted by Source Enterprises, Inc. without proper signature and, as such, is
`
`deficient.
`
`21.
`
`Applicant further affirmatively alleges that as a result of its continuous
`
`substantial use of its Mark since its adoption, the Mark is a valuable asset of
`
`Applicant and carries considerable goodwill and consumer acceptance of all
`
`products sold or services performed under its Mark. Such goodwill and usage
`
`has made the Mark distinctive to the Applicant.
`
`22.
`
`Applicant further affirmatively alleges that there is no likelihood of visual or
`
`audible confusion, mistake or deception because, inter alia, Applicant’s Mark
`
`and the pleaded mark of Source Enterprises, Inc. are not confusingly similar.
`
`The Board must apply the anti-dissection rule of construction, and that the
`
`marks THE SOURCE and RESOURCE MAGAZINE neither look alike, nor
`
`sound alike, nor have any similarity in meaning.
`
`23.
`
`Applicant further affirmatively alleges that the purported strength Opposer’s
`
`Mark has been gradually whittled away by other marks on the Principal
`
`Register that are in fact identical, including, inter alia, THE SOURCE (Reg.
`
`No. 2004426); THE SOURCE (Reg. No. 2129990); THE SOURCE (Reg. No.
`
`2360623); THE SOURCE (Reg. No. 2466279); THE SOURCE! (Reg. No.
`
`2749712); THE SOURCE (Reg. No. 2833341); THE SOURCE (Reg. No.
`
`

`
`3304029); THE SOURCE (Reg. No. 3055444); without limitation. (See
`
`Exhibits QQ – XX to the Davids Decl.)
`
`24.
`
`Applicant further affirmatively alleges that Applicant has been using its Mark
`
`and developing consumer recognition and goodwill in its Mark for a
`
`significant period of time and Opposer has done nothing and is consequently
`
`barred by laches, acquiescence and estoppel from opposing Applicant’s
`
`application.
`
`25.
`
`Applicant further affirmatively alleges that there is no likelihood of dilution of
`
`Opposer’s mark by tarnishment because Opposer’s mark is associated with an
`
`entity that is despised by the consumer it seeks to target and due to its
`
`negative reputation for, inter alia, withholding or denying compensation to
`
`professional photographers, whereas Applicant’s Mark is associated with a
`
`company, management team, and magazine that garners industry-wide respect
`
`and offers editorial excellence to the professional photographer community,
`
`its targeted consumer. (See Davids Decl. ¶ 2)
`
`26.
`
`Applicant further affirmatively alleges that there is no likelihood of dilution
`
`by blurring because Opposer’s and Applicant’s marks are not sufficiently
`
`similar.
`
`27.
`
`Applicant further affirmatively alleges that Opposer has not engaged in
`
`substantially exclusive use of its Mark as there are, upon information and
`
`belief, numerous uses and registrations of third party marks with the word
`
`“source” used or integrated within, many of which are actually identical, and
`
`

`
`in the magazine field. A non-exhaustive sampling of other identical marks are
`
`attached as Exhibits QQ – XX to the Davids Decl.
`
`28.
`
`Applicant further affirmatively alleges that Applicant intended no association
`
`with Opposer’s mark, and for the reasons stated herein wants to not be
`
`associated with Opposer.
`
`29.
`
`Applicant further affirmatively alleges that, upon information and belief,
`
`ordinary prospective consumers of Applicant’s magazine do not associate
`
`Applicant’s and Opposer’s Marks and are not likely to associate the two
`
`Marks.
`
`30.
`
`Applicant further affirmatively alleges that Opposer has unclean hands
`
`because, upon information and belief, it has filed this proceeding merely to
`
`acquire rights in Applicant’s Mark, which it does not presently have, and
`
`which Applicant has acquired through common law usage. Opposer has
`
`sworn under penalty of perjury that it has the bonafide intention to use
`
`Applicant’s Mark, and that it does not have a basis to claim existing rights in
`
`Applicant’s Mark. See Exhbit PP to the Davids Decl.
`
`
`
`

`
`WHEREFORE, Applicant requests that the Notice of Opposition be dismissed, and
`
`any such further relief as the Board deems just and proper.
`
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`Respectfully submitted,
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`REMAG, INC.
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`By: Adam Davids
`The Law Office of Adam Davids, PC
`111 East 14th Street, 222
`New York, NY
`Attorneys for Applicant
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`Dated July 6, 2009
`New York, NY
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Opposition No.: 91190424
`Serial No. 77604959
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`SOURCE ENTERPRISES, INC.,
`PREDECESSOR OF SOURCE
`PUBLICATIONS, LLC
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`Opposer
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`v.
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`REMAG, INC.
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`Applicant
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`DECLARATION OF ADAM DAVIDS
`IN SUPPORT OF APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
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`I, ADAM DAVIDS, certify under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the
`following is true and correct:
`1. I am an Attorney at Law, duly licensed in the State of New York, counsel to Applicant in
`the present action, and not a party to this matter. The basis of my knowledge for the
`information contained herein was acquired through my duties as counsel and through
`publicly available records.
`2. Resource Magazine, a trade magazine for professional photographers, published by
`Applicant, is a quarterly magazine in continuous publication since September 2007 with a
`national circulation of approximately 20,000, and has earned a reputation for its editorial
`acumen.
`3. The following exhibits referenced in the Answer are attached hereto:
`a. A true and correct printout, dated July 1, 2009, from the Merriam-Webster
`Dictionary, freely and publicly available at the website Merriam-Webster.com, is
`attached hereto as Exhibit A.
`b. A true and correct printout of the Michele Asselin claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit B.
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`c. A true and correct printout of the Nazife Burcu Avsar claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit C.
`d. A true and correct printout of the Bathouse Studio claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit D.
`e. A true and correct printout of the Brazen Enterprises LLC claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit E.
`f. A true and correct printout of the Digital Fusion claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit F.
`g. A true and correct printout of the Getty Images, Inc. claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit G.
`h. A true and correct printout of the Glasshaus Studio claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit H.
`i. A true and correct printout of the Halley Resource, Inc. claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit I.
`j. A true and correct printout of the Anderson Hopkins claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit J.
`k. A true and correct printout of the Iron Brew Studio claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit K.
`l. A true and correct printout of the Monte Isom claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit L.
`m. A true and correct printout of the James Porto Photographer, Inc. claim In re:
`Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1,
`2009, from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit M.
`n. A true and correct printout of the Jason Ivany Photography, Inc. claim In re:
`Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated June
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`30, 2009, from the claims administrator, Epiq Systems website, freely and
`publicly available at www.epiq11.com, is attached hereto as Exhibit N.
`o. A true and correct printout of the Jennifer Sexsion Photography claim In re:
`Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1,
`2009, from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit O.
`p. A true and correct printout of the John Turner Photo Rep claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit P.
`q. A true and correct printout of the Kenji Toma Photography claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit Q.
`r. A true and correct printout of the Langella Photography, Inc. claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit R.
`s. A true and correct printout of The Lens and Repro Equipment Corp claim In re:
`Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1,
`2009, from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit S.
`t. A true and correct printout of the London Features International (USA) Ltd claim
`In re: Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated
`July 1, 2009, from the claims administrator, Epiq Systems website, freely and
`publicly available at www.epiq11.com, is attached hereto as Exhibit T.
`u. A true and correct printout of the Mark Mann Photography, Inc. claim In re:
`Source Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1,
`2009, from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit U.
`v. A true and correct printout of the Neo Studios claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit V.
`w. A true and correct printout of the Photofest claim In re: Source Enterprises, Inc.,
`Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the claims
`administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit W.
`x. A true and correct printout of the Picture Ray Studio, LLC claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit X.
`y. A true and correct printout of the Pro One Los Angeles claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit Y.
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`z. A true and correct printout of the Q Studios Inc. claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit Z.
`aa. A true and correct printout of the Quixote Studios claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit AA.
`bb. A true and correct printout of the Resolution Digital, Inc. claim In re: Source
`Enterprises, Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009,
`from the claims administrator, Epiq Systems website, freely and publicly
`available at www.epiq11.com, is attached hereto as Exhibit BB.
`cc. A true and correct printout of the Maria Rosel claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit CC.
`dd. A true and correct printout of the Jeff Sciortino claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated July 1, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit DD.
`ee. A true and correct printout of the Joshua Scott claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG), dated June 30, 2009, from the
`claims administrator, Epiq Systems website, freely and publicly available at
`www.epiq11.com, is attached hereto as Exhibit EE.
`ff. A true and correct printout of the Rahav Segev claim In re: Source Enterprises,
`Inc., Chapter 11, Case Number 06-11707 (AJG),