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
`ESTTA434631
`ESTTA Tracking number:
`10/07/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91194913
`Defendant
`Kelly P. Willis
`John S Egbert
`Egbert Law Offices PLLC
`412 Main Street, 7th Floor
`Houston, TX 77002
`UNITED STATES
`mail@egbertlawoffices.com
`Motion for Summary Judgment
`John S. Egbert
`mail@egbertlawoffices.com, kwilson@egbertlawoffices.com
`/2647-1/
`10/07/2011
`2647-1 SJ Mtn.HAUTE SHOTS.pdf ( 10 pages )(81805 bytes )
`2647-1 Declaration of Wilson.pdf ( 67 pages )(1854596 bytes )
`2647-1 Declaration of Willis.Part 1.pdf ( 40 pages )(1469477 bytes )
`Declaration of Willis.Part 2.pdf ( 27 pages )(2022749 bytes )
`Declaration of Willis.Part 3.pdf ( 11 pages )(3055010 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 77/812,612
`Published in the Official Gazette on April 20, 2010
`
`Haute Shots, a Nevada partnership composed §
`of Joseph Grimm and Stacie Frazier,
` §
` §
` §
` §
` §
` §
` §
` §
` §
`
`Opposer,
`
`Opposition No. 91194913
`
`v.
`
`KELLY P. WILLIS,
`
`Applicant.
`
`APPLICANT'S MOTION FOR SUMMARY JUDGMENT
`
`KELLY P. WILLIS ("Applicant"), moves, under Rule 2.127 of the Trademark Rules of
`
`Practice and Federal Rule of Civil Procedure 56, for summary judgment and dismissal of Haute
`
`Shots, a Nevada partnership composed of Joseph Grimm and Stacie Frazier's ("Opposer") Notice
`
`of Opposition of Applicant's U.S. Trademark App. No. 77/812,612 for the mark "HAUTE SHOT
`
`AND DESIGN". Summary judgment and dismissal are proper in this proceeding because there is
`
`no genuine issue of fact and because Applicant is entitled to judgment as a matter of law.
`
`Specifically, Opposer lacks priority in relation to the "HAUTE SHOT" mark.
`
`This Motion for Summary Judgment is submitted prior to the commencement of Opposer's
`
`testimony period and is based on the attached Memorandum of Law in Support of Applicant's
`
`Motion for Summary Judgment, the attached Declarations of Kevin Wilson and Kelly P. Willis, the
`
`attached exhibits, and all pleadings and papers on file. The interests of judicial economy and
`
`fairness to both parties are best served by concluding this Opposition proceeding at this time.
`
`Therefore, It is respectfully requested that this Motion be granted and that the Opposition proceeding
`
`

`
`be dismissed with prejudice. Pursuant to Trademark Rule 1.127(d) of the Trademark Rules of
`
`Practice it is requested that the proceedings be suspended pending the disposition of this motion.
`
` October 7, 2011
`Date
`
`Respectfully submitted,
`
` /2647-1/
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`
`EGBERT LAW OFFICES, PLLC
`th
`412 Main Street, 7 Floor
`Houston, Texas 77002
`Tel: (713) 224-8080
`Fax: (713) 223-4873
`
`ATTORNEYS FOR APPLICANT
`Kelly P. Willis
`
`2
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that Applicant's Motion for Summary Judgment, Memorandum of Law in
`Support thereof and the Declarations and attached Exhibits are being sent by first class mail on
`October 7, 2011 to the correspondence of record for Opposer at the following address:
`
`Stacie Frazier and Joseph Grimm
`Haute Shots
`10624 S Eastern Ave Suite A141
`Henderson, NV 89052
`
`CORRESPONDENT OF RECORD FOR OPPOSER
`Haute Shots, a Nevada partnership composed
`of Joseph Grimm and Stacie Frazier
`
` /2647-1/
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`
`EGBERT LAW OFFICES, PLLC
`th
`412 Main Street, 7 Floor
`Houston, Texas 77002
`Tel: (713) 224-8080
`Fax: (713) 223-4873
`
`ATTORNEYS FOR APPLICANT
`Kelly P. Willis
`
`JSE:ksw
`Our File: 2647-1
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 77/812,612
`Published in the Official Gazette on April 20, 2010
`
`Haute Shots, a Nevada partnership composed §
`of Joseph Grimm and Stacie Frazier,
` §
` §
` §
` §
` §
` §
` §
` §
` §
`
`Opposer,
`
`Opposition No. 91194913
`
`v.
`
`KELLY P. WILLIS,
`
`Applicant.
`
`MEMORANDUM OF LAW IN SUPPORT OF APPLICANT KELLY P. WILLIS'S
`
`MOTION FOR SUMMARY JUDGMENT
`
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`
`EGBERT LAW OFFICES, PLLC
`th
`412 Main Street, 7 Floor
`Houston, Texas 77002
`Tel: (713) 224-8080
`Fax: (713) 223-4873
`
`ATTORNEYS FOR APPLICANT
`Kelly P. Willis
`
`

`
`I.
`
`PRELIMINARY STATEMENT
`
`Opposer Haute Shots, a Nevada partnership composed of Joseph Grimm and Stacie Frazier
`
`("Opposer"), filed its Notice of Opposition on May 17, 2010 alleging priority and likelihood of
`
`confusion of Kelly P. Willis's ("Applicant") "HAUTE SHOT AND DESIGN" mark with Opposer's
`
`alleged "HAUTE SHOTS" mark. As will be shown in this Memorandum of Law, and as revealed
`
`through discovery in this proceeding, Applicant's use of the term "HAUTE SHOT" precedes any
`
`alleged use of a similar term by Opposer. Indeed, Applicant's first use in commerce of the "HAUTE
`
`SHOT" mark commenced on at least as early as August 18, 2008, a date that is at least six months
`
`prior to Opposer's alleged first use of its "HAUTE SHOTS" mark in commerce. For this reason,
`
`Opposer has priority of use in regard to the phrase "HAUTE SHOT," Applicant's Motion for
`
`Summary Judgment should be granted and this Opposition proceeding should be dismissed with
`
`prejudice.
`
`II.
`
`STATEMENT OF UNDISPUTED FACTS
`
`A. Applicant Kelly P. Willis
`
`Applicant is an individual of the United States with an address of 1913 Aztec Drive, Deer
`
`Park, TX 77536. Applicant is the sole owner of the "HAUTE SHOT AND DESIGN" mark in the
`
`United States, U.S. App. Ser. No. 77/812,612, which was filed on August 25, 2009 based on use in
`
`commerce on "portrait photography" in International Class 41. See [Declaration of Kevin S. Wilson
`
`(hereinafter referred to as "Wilson Decl."), ¶ 3 and Exhibit A, U.S. App. Ser. No. 77/812,612].
`
`B. Opposer Haute Shots, a Nevada partnership
`
`Upon information and belief, Opposer is a partnership organized under the laws of Nevada,
`
`with an address of 10624 S. Eastern Ave, Suite A-141, Henderson, NV 89052. Opposer is the owner
`
`of the "HAUTE SHOTS" application in the United States, U.S. App. Ser. No. 77/936,397, which
`
`2
`
`

`
`was filed on February 16, 2010 for use on "photography services" in International Class 41. See
`
`[Wilson Decl., ¶ 4 and Exhibit B, U.S. App. Ser. No. 77/936,397].
`
`C. Opposer's Notice of Opposition of the "HAUTE SHOT AND DESIGN" Mark
`
`Opposer filed its Notice of Opposition on May 17, 2010, challenging the registration of
`
`Applicant's "HAUTE SHOT AND DESIGN" mark. The Notice of Opposition has since been
`
`amended by Opposer, and the Amended Notice of Opposition effective at this time was filed
`
`September 1, 2011. The Amended Notice of Opposition alleges that Opposer has priority of use in
`
`the "HAUTE SHOTS" mark due to continuous use of the mark "since at least as early as April 15,
`
`2009," a date that is "before Applicant's filing date of August 25, 2009 or its alleged date of first use
`
`in its application." See [Wilson Decl., ¶¶ 5-6 and Exhibit C, Amended Notice of Opposition].
`
`D. Applicant's Answer
`
`Applicant timely filed its Answer to Opposer's Amended Notice of Opposition on January
`
`12, 2011 denying the Opposer's allegations of priority of use. The January 12, 2011 Answer remains
`
`the operative Answer in this proceeding as stated in the Board's September 12, 2011 Order filed in
`
`this proceeding. See [Wilson Decl., ¶¶ 7-8 and Exhibit D, Answer to Notice of Opposition].
`
`E. Applicant's First Use of the "HAUTE SHOT" Mark
`
`Applicant's first use of the "HAUTE SHOT" mark in rendering photography services was
`
`made at least as early as August 18, 2008. See [Wilson Decl., ¶ 9 and Exhibit E, Applicant's
`
`Answers to Opposer's First Set of Interrogatories ]; see [Declaration of Kelly P. Willis (hereinafter
`
`referred to as "Willis Decl."), ¶¶ 3-6 and Exhibits B, D and E]. Applicant's use of the mark has been
`
`continuous and substantial since the date of first of use of the "HAUTE SHOT" mark in interstate
`
`commerce. See [Willis Decl., ¶¶ 5-9 and Exhibits D, E, F, G, H and I].
`
`3
`
`

`
`F. Opposer's First Use of the "HAUTE SHOTS" Mark.
`
`Opposer's first use of its "HAUTE SHOTS" mark in rendering photography services was
`
`allegedly made no earlier than March 2, 2009 according to Opposer's Response to Interrogatories.
`
`See [Wilson Decl., ¶ 10 and Exhibit F]. Furthermore, the earliest invoice provided by Opposer in
`
`this proceeding including the "HAUTE SHOTS" mark is dated April 22, 2009. See id. at ¶ 11 and
`
`Exhibit G.
`
`G. Likelihood of Confusion is Not an Issue in this Summary Judgment Motion
`
`Since priority of use is an essential element of Opposer's claims, the only issue in this
`
`Summary Judgment Motion is priority of use. If Opposer cannot establish prior rights to its alleged
`
`"HAUTE SHOTS" mark, Opposer's Notice of Opposition must fail.
`
`III.
`
`ARGUMENT
`
`A. Summary Judgment Standard
`
`Summary judgment is appropriate where there are no genuine issues of material fact to be
`
`tried and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The
`
`Supreme Court has held that the "[s]ummary judgment procedure is properly regarded not as a
`
`disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
`
`are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Sweats Fashions, Inc. v. Pannill Knitting Co.,
`
`833 F.2d 1560, 1562 (Fed. Cir. 1987). The evidence must be sufficient for the court to hold that no
`
`reasonable trier of fact could find other than for the moving party. First Nat 'I Bank v. Cities Service
`
`Co., 391 U.S. 253 (1968).
`
`Summary judgment is proper if the non-movant fails to show a genuine issue of fact
`
`concerning an element essential to its case. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
`
`4
`
`

`
`477 U.S. 242, 247-50 (1986). To overcome a summary judgment motion, the non-movant must "do
`
`more than simply show that there is some metaphysical doubt as to the material facts." Matsushita
`
`Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Furthermore, simple conclusory
`
`denials are insufficient to defeat a summary judgment motion. See, e.g., Wilson Sporting Goods Co.
`
`v. Northwestern Golf Co., 172 USPQ 182, 184 (TTAB 1971); Spin Physicas, Inc. v. Matsushita Elec.
`
`Indus. Co., 168 USPQ 605 (TTAB 1970).
`
`Summary judgment is particularly appropriate where, as here, actual testimony is unlikely
`
`to address any new or additional evidence which might bear on the critical factual issues or which
`
`would reasonably be expected to change the result. Pure Gold, Inc. v. Syntex (U.S.A.) Inc., 222
`
`USPQ 741,743 (Fed. Cir. 1984); Person's Co., Ltdv. Christman, 9 U.S.P.Q.2d 1477, 1478 (TTAB
`
`1988), affd, 900 F.2d 1565 (Fed. Cir. 1990). There is no basis to believe that further proceedings
`
`can possibly controvert the fact that Applicant has prior rights to the "HAUTE SHOT" mark based
`
`on the earlier date of first use in commerce of her services in International Class 041.
`
`B.
`
`This Motion for Summary Judgment Must Be Granted as a Matter of Law on the
`Ground That Applicant Has Prior Rights
`
`The only issue in this Motion for Summary Judgment is priority. As will be shown below,
`
`there is no genuine issue of material fact on the issue of priority. Applicant first notes that she has
`
`a constructive use priority date of August 25, 2009. See [Wilson Decl., Exhibit A]; see Section 7(c)
`
`of the Trademark Act (explaining that the filing date of the application constitutes constructive use
`
`of the mark on or in connection with the services specified in the application). That being said,
`
`proprietary rights in a mark "may arise from a prior registration, prior trademark or service mark
`
`use, prior use as a trade name, prior use analogous to trademark or service mark use, or any other
`
`use sufficient to establish proprietary rights." Otto Roth & Co. v. Universal Foods Corp., 209 USPQ
`
`5
`
`

`
`40, 43 (CCPA 1981); see, e.g., Nat'l Cable Television Ass'n, Inc. v. Am Cinema Editors, Inc., 19
`
`USPQ2d 1424 (Fed. Cir. 1991); Knickerbocker Toy Co. v. Faultless Starch Co., 175 USPQ 417
`
`(CCPA 1972). In this proceeding, Applicant is able to establish a priority date that is prior to the
`
`filing date of her application via evidence of "pre-application" use of her mark in commerce.
`
`Applicant's first use of the "HAUTE SHOT" mark in United States interstate commerce was
`
`made on August 18, 2008 in regard to services provided to Mr. Wayne Smith, a resident of Mexico.
`
`See [Wilson Decl., ¶ 9 and Exhibit E, Interrogatory Nos. 2-12]; see [Willis Decl., ¶¶ 3-6 and
`
`Exhibits D and E]. Indeed, Applicant's "HAUTE SHOT" mark has been continuously and
`
`substantially used throughout the United States from at least as early as August 18, 2008 until the
`
`present time. See id; see [Willis Decl., ¶¶ 5-9 and Exhibits D, E, F, G, H and I].
`
`As for the first use of Opposer's alleged "HAUTE SHOTS" mark in commerce, Applicant
`
`asked about such use within an interrogatory as follows:
`
`INTERROGATORY NO. 2:
`
`Identify and describe each product and/or service with which
`
`Opposer's Mark has been used, or with which Opposer's mark is intended to
`
`be used, and with respect to each product and/or service identify:
`
`(a)
`
`the exact date(s) on which Opposer will rely as to when use
`
`of Opposer's Mark commenced in connection with the sale, distribution
`
`and/or offer for sale of each product and/or service identified, or the date that
`
`Opposer intends to begin use of Opposer's Mark in connection with any
`
`product and/or service identified. . . . See [Wilson Decl., ¶ 10 and Exhibit F].
`
`Applicant responded by stating that "the date that the Applicant's [sic] services were first
`
`provided in connection with Haute Shots was March 2, 2009." See id. at Interrogatory No. 2(a).
`
`6
`
`

`
`Furthermore, Applicant notes that the earliest invoice provided by Opposer to support its first use
`
`of the "HAUTE SHOTS" mark is dated April 22, 2009. See [Wilson Decl., ¶ 11 and Exhibit G].
`
`This document was attached to Opposer's Supplemental Response to Applicant's Interrogatories filed
`
`on July 29, 2011 with the Board, however, Applicant has treated this invoice as a document
`
`responsive to Applicant's Requests for Production. See id. Therefore, Opposer's verified Response
`
`to Interrogatories, and the evidence attached in support thereof, shows that Opposer's first use of its
`
`"HAUTE SHOTS" mark did not occur until more than six months after Applicant's first use of her
`
`"HAUTE SHOT" mark on August 18, 2008.
`
`IV.
`
`CONCLUSION
`
`Accordingly, Applicant has prior rights in the "HAUTE SHOT" mark and moves for
`
`summary judgment based on the priority of Applicant's first use in commerce. Applicant
`
`respectfully requests that its Motion for Summary Judgment be granted, and that Opposition No.
`
`91194913 be dismissed with prejudice.
`
` October 7, 2011
`Date
`
`Respectfully submitted,
`
` /2647-1/
`John S. Egbert
`Reg. No. 30,627
`Kevin S. Wilson
`
`EGBERT LAW OFFICES, PLLC
`th
`412 Main Street, 7 Floor
`Houston, Texas 77002
`Tel: (713) 224-8080
`Fax: (713) 223-4873
`
`ATTORNEYS FOR APPLICANT
`Kelly P. Willis
`
`7
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 77/812,612
`Published in the Official Gazette on April 20, 2010
`
`Haute Shots, a Nevada partnership composed §
`of Joseph Grimm and Stacie Frazier,
`
`Opposer,
`
`V.
`
`KELLY P. WILLIS,
`
`Applicant.
`
`€403?-0'-I¢0'J€«O'J¢-03C40>f-(7D¢0'3C40J
`
`Opposition No. 91 194913
`
`DECLARATION OF KEVIN S. WILSON
`
`I am over the age of eighteen, have never been
`“My name is Kevin S. Wilson.
`1.
`convicted of a felony, and am fully qualified to make this Declaration.
`I file this Declaration under
`28 U.S.C. 1746.
`
`I am an attorney with the office ofEgbert Law Offices, PLLC, attorneys for Kelly P.
`2.
`Willis, in the above-entitled and numbered opposition proceeding.
`I have personal knowledge of
`the matters contained in this declaration, and if called upon to testify, I could and would testify
`competently thereto. I submit this affidavit in support ofApplicant's Motion for Summary Judgment.
`
`Attached hereto as Exhibit A is a true and correct copy ofprintouts from the United
`3.
`States Patent and Trademark Office's Trademark Electronic Search System (TESS), Trademark
`Applications and Registrations Retrieval (TARR) and assignment databases showing the relevant
`information and status of U.S. App. Ser. No. 77/812,612 for the mark "HAUTE SHOT AND
`DESIGN" in the name of Kelly P. Willis ("Applicant").
`
`Attached hereto as Exhibit B is a true and correct copy ofprintouts from the United
`4.
`States Patent and Trademark Office's Trademark Electronic Search System (TESS), Trademark
`Applications and Registrations Retrieval (TARR) and assignment databases showing the relevant
`information and status of U.S. App. Ser. No. 77/936,397 for the mark "HAUTE SHOTS" in the
`name of Haute Shots, a Nevada partnership composed of Joseph Grimm and Stacie Frazier
`("Opposer").
`
`On September 1, 201 1, Opposerfiled its Amended Notice ofOpposition ofU.S. App.
`5.
`No. 77/812,612 for the mark "HAUTE SHOT AND DESIGN" for "portrait photography" in
`International Class 41 in the name of Applicant. The Notice of Opposition alleges in part that
`Opposer has priority ofuse in the "HAUTE SHOTS" mark due to continuous use ofthe mark “since
`
`
`
`

`
`at least as early as April 15, 2009," a date that is "before Applicant's filing date of August 25, 2009
`or its alleged date of first use in its application."
`
`Attached hereto as Exhibit C is a true and correct copy of the Amended Notice of
`6.
`Oppostion, filed with the Board by Opposer on September 1, 2011.
`
`On January 12, 201 1, Applicant timely filed its Answer to Opposer's Amended Notice
`7.
`ofOpposition on January 12, 201 1 denying the Opposer's allegations ofpriority ofuse. This January
`12, 2011 Answer remains the operative Answer in this proceeding in accordance with the Board's
`September 12, 2011 Order.
`
`Attached hereto as Exhibit D is a true and correct copy of Applicant's Answer to
`8.
`Notice of Opposition, filed with the Board by Applicant on January 12, 2011.
`
`Applicant served its Answers to Opposer's First Set of Interrogatories on April 22,
`9.
`201 1. In the answers to Interrogatories, Applicant explains that the date that Applicant will rely as
`to when the use of the term "HAUTE SHOT" commenced in relation to the services provided is
`August 18, 2008. Attached hereto as Exhibit E is a true and correct copy of Applicant's Answers
`to Opposer's First Set of Interrogatories, along with the Verification of Applicant.
`
`Opposer served its (second amended) Responses and Objections to First Set of
`10.
`Interrogatories of Applicant on September 1, 2011.
`In the answers to Interrogatories, Opposer
`explains that the date that Opposer will rely as to when the use of Opposer's mark commenced in
`relation to the services provided is March 2, 2009. Attached hereto as Exhibit F is a true and correct
`copy of Opposer's Responses and Objections to First Set of Interrogatories of Applicant, along with
`the Verifications of Opposer.
`
`Attached hereto as Exhibit G is a true and correct copy ofan attachment to Opposer's
`1 1 .
`(first amended) Responses and Objections to First Set of Interrogatories of Applicant served and
`filed with the Board on July 29, 2011.
`I note that Exhibit G was mailed to the Board on July 29,
`2011 with Opposer's (first amended) interrogatory responses, but Applicant has treated such
`documents as responsive to Applicant's Requests for Production. Exhibit G is an invoice from
`Registrant dated April 22, 2009 and is the earliest dated invoice served by Opposer regarding use
`of its alleged "HAUTE SHOTS" mark.
`
`I declare under the penalty of perjury under the laws ofthe United States of America that the
`foregoing statements are true and correct."
`
`Executed on the 7"‘ day of October 2011.
`
`1 S. Wilson
`
`
`
`

`
`Exhibit A
`
`to Declaration of Kevin S. Wilson
`
`
`
`

`
`United States Patent and Trademark Office
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`Word Mark
`
`HAUTE SHOT
`
`Goods and
`Services
`
`IC 041. US 100 101 107. G 8: S: Portrait photography. FIRST USE: 20090824. FIRST USE IN
`COMMERCE: 20090324
`
`I:“:;I;D'aw'"9 (3) DESIGN PLUS WORDS, LE'|'|'ERS, AND/OR NUMBERS
`Design Search 02.03.01 — Busts of women facing fonrvard; Heads of women facing fonrvard; Portraiture of women
`Code
`facing forward; Women - head, portraiture or busts facing forward
`16.03.07 - Eyeglasses; Frames, eyeglass; Glasses, eye; Glasses, safety; Goggles; Safety goggles;
`Spectacles; Sunglasses
`17.03.02 - Bracelets; Chains, jewelry; Chokers (jewelry); Dog tags (military identification); Necklaces;
`Tags, identification (metal)
`26.01.17 - Circles, two concentric; Concentric circles, two; Two concentric circles
`26.01.21 - Circles that are totally or partially shaded.
`Serial Number 77812612
`
`Filing Date
`Current Filing
`Basis
`
`Original Filing
`Basis
`Published for
`Opposition
`
`Owner
`
`August 25, 2009
`
`IA
`
`IA
`
`.
`April 20, 2010
`
`(APPLICANT) Kelly P. Willis DBA Artistique Studio INDIVIDUAL TEXAS 1913 Aztec Drive Deer Park
`TEXAS 77536
`
`Attorney of
`Record
`
`.
`R. T. Vlnllrs
`
`Disclaimer
`
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "SHOT" APART FROM THE MARK AS
`SHOWN
`
`
`
`

`
`Description of The color(s) red, black, white, and tan is/are claimed as a feature of the mark. The mark consists of a
`Mark
`red and white bull's eye design with a drawn female inside, with black and white hair, black
`.
`sunglasses and a black and tan necklace, and a tan face and neck, with the wording "HAUTE
`SHOT" appearing in black cursive lettering around the outside of the bull's eye design.
`SERVICE MARK
`
`Type of Mark
`
`PRINCIPAL
`
`Register
`LiveIDead
`LIVE
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`].HOME | SITE INDEXI SEARCH | EBUSINESS I HELP | PRIVACY POLICY
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`
`Thank you for your request. Here are the latest results from the TARR web server.
`
`This page was generated by the TARR system on 2011-10-04 12:43:30 ET
`
`Serial Number: 77812612 Assignment Information
`
`Trademark Document Retrieval
`
`Registration Number: (NOT AVAILABLE)
`
`Mark
`
`““%
`
`(words only): HAUTE SHOT
`
`Standard Character claim: No
`
`Current Status: An opposition after publication is pending at the Trademark Trial and Appeal Board.
`For further information, see TTABVUE on the Trademark Trial and Appeal Board web page.
`
`Date of Status: 2010-05-17
`
`Filing Date: 2009-08-25
`
`Filed as TEAS Plus Application: Yes
`
`Currently TEAS Plus Application: Yes
`
`Transformed into a National Application: No
`
`Registration Date: (DATE NOT AVAILABLE)
`
`Register: Principal
`
`Law Office Assigned: LAW OFFICE 101
`
`Attorney Assigned:
`FALK ERIN M
`
`Current Location: 650 -Publication And Issue Section
`
`Date In Location: 2010-03-13
`
`LAST APPLICANT(S)/OWNER(S) OF RECORD
`
`
`
`

`
`1. Kelly P. Willis
`
`DBA/AKA/TA/Formerly: DBA Artistique Studio
`Address:
`
`Kelly P. Willis
`1913 Aztec Drive
`
`Deer Park, TX 77536
`United States
`
`Legal Entity Type: Individual
`Country of Citizenship: United States
`Phone Number: 281-542-6700
`Fax Number: 281-542-9611
`
`
`
`GOODS ANDIOR SERVICES
`
`
`International Class: 041
`
`Class Status: Active
`
`Portrait photography
`Basis: 1(a)
`First Use Date: 2009-08-24
`
`First Use in Commerce Date: 2009-08-24
`
`
`
`ADDITIONAL INFORMATION
`
`
`Color(s) Claimed: The color(s) red, black, white, and tan is/are claimed as a feature of the mark.
`
`Disclaimer: "SHOT"
`
`Description of Mark: The mark consists of a red and white bull's eye design with a drawn female
`inside, with black and white hair, black sunglasses and a black and tan necklace, and a tan face and
`neck, with the wording "HAUTE SHOT" appearing in black cursive lettering around the outside of the
`bull's eye design.
`
`Design Search C0de(s):
`02.03.01 - Busts of women facing forward; Heads of women facing forward; Portraiture of women
`facing forward; Women - head, portraiture or busts facing forward
`16.03.07 - Eyeglasses; Frames, eyeglass; Glasses, eye; Glasses, safety; Goggles; Safety goggles;
`Spectacles; Sunglasses
`17.03.02 - Bracelets; Chains, jewelry; Chokers (jewelry); Dog tags (military identification); Necklaces;
`Tags, identification (metal)
`26.01.17 - Circles, two concentric; Concentric circles, two; Two concentric circles
`26.01.21 - Circles that are totally or partially shaded.
`
`MADRID PROTOCOL INFORMATION
`
`(NOT AVAILABLE)
`
` jM_
`
`PROSECUTION HISTORY
`
`
`
`

`
`
`
`NOTE: To view any document referenced below, click on the link to "Trademark Document
`Retrieval" shown near the top of this page.
`
`2010-05-17 - Opposition instituted for Proceeding
`
`2010-05-17 - Opposition papers filed
`
`2010-04-20 - Notice Of Publication E-Mailed
`
`2010-04-20 - Published for opposition
`
`2010-03-13 - Law Office Publication Review Completed
`
`2010-03-08 - Assigned To LIE
`
`2010-02-17 - Approved for Pub - Principal Register (Initial exam)
`
`2010-02-16 - Teas/Email Correspondence Entered
`
`2010-02-14 - Communication received from applicant
`
`2010-02-14 - TEAS Response to Office Action Received
`
`2010-02-09 - Notification Of Non-Final Action E-Mailed
`
`2010-02-09 - NON-FINAL ACTION E-MAILED
`
`2010-02-09 — Non-Final Action Written
`
`2010-02-02 — Assigned To Examiner
`
`2010-01-04 - Teas/Email Correspondence Entered
`
`2010-01-03 - Communication received from applicant
`
`2010-01-03 - TEAS Response to Office Action Received
`
`2009-12-02 - Notification Of Non-Final Action E-Mailed
`
`2009-12-02 - Non-final action e-mailed
`
`2009-12-02 - Non-Final Action Written
`
`2009-1 1-30 - Assigned To Examiner
`
`2009-08-29 - Notice Of Design Search Code Mailed
`
`2009-08-28 - New Application Office Supplied Data Entered In Tram
`
`2009-08-28 - New Application Entered In Tram
`
`
`
`

`
`
`
`ATTORNEY/CORRESPONDENT INFORMATION
`
`Attorney of Record
`R. T. Willis
`
`Correspondent
`John S Egbert
`Egbert Law Offices PLLC
`412 Main Street 7th Floor
`
`Houston, TX 77002
`Phone Number: 281-542-9555
`
`Fax Number: 281-542-961 1
`
`
`
`
`
`

`
`
`
`United States Patent and Trademark Office
`
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`
`No assignment has been recorded at the USPTO
`
`For Serial Number: 77812612
`
`If you have any comments or questions concerning the data displayed. contact PRD .' Assignments at 571-272-3350. v.2.2
`Web interface fast modified: July 25, 2011 v.2.2
`
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`.HOME | INDEXI SEARCH | EBUSINESS | CONTACT US I PRIVACY STATEMENT
`
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`
`Exhibit B
`
`to Declaration of Kevin S. Wilson
`
`
`
`

`
`United States Patent and Trademark Office
`
` Homelsite Index[Search [ FAQ|GIossaryI GuidesIContactsIeBusiness|eBiz a|ertsINews| Help
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`
`Haute Shots
`
`Word Mark
`
`HAUTE SHOTS
`
`Goods and
`Services
`Standard
`Characters
`Claimed
`
`g:;';°'aWi"9
`Serial Number
`
`Filing Date
`Current Filing
`Basis
`
`Original Filing
`Basis
`
`Owner
`
`IC 041. US 100 101 107. G & S: Photography services. FIRST USE: 20090415. FIRST USE IN
`COMMERCE: 20090710
`
`(4) STANDARD CHARACTER MARK
`77936397
`
`February 16, 2010
`
`1A
`
`1A
`
`(APPLICANT) HAUTE SHOTS PARTNERSHIP NEVADA 10624 S. Eastern Ave, Suite A-141
`Henderson NEVADA 89052
`
`Attorney of Record Marcia Devon
`Type of Mark
`SERVICE MARK
`
`Register
`
`Other Data
`
`PRINCIPAL
`
`An opposition is pending for Haute Shot Serial No. 77f812,612. Applicants are in
`communication with the owner of Hot Shotz, Serial no. 77/739,628 and may file a proceeding
`before the TTAB.
`
`LiveI'Dead Indicator LIVE
`
`—
`
`
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`|.HOME I S1TEINDEX| SEARCH I e-BUSINESS I HELP I PRIVACY POLICY
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`
`Thank you for your request. Here are the latest results from the TARR web server.
`
`This page was generated by the TARR system on 2011-10-04 12:44:04 ET
`
`Serial Number: 77936397 Assignment Information
`
`Trademark Document Retrieval
`
`Registration Number: (NOT AVAILABLE)
`
`Mark
`
`Haute Shots
`
`(words only): HAUTE SHOTS
`
`Standard Character claim: Yes
`
`Current Status: Suspension check completed. Application remains suspended.
`
`Date of Status: 2011-05-26
`
`Filing Date: 2010-02-16
`
`Transformed into a National Application: No
`
`Registration Date: (DATE NOT AVAILABLE)
`
`Register: Principal
`
`Law Office Assigned: LAW OFFICE 104
`
`Attorney Assigned:
`SPILS CAROL A
`
`Current Location: L40 -TMEG Law Office 104
`
`Date In Location: 2011-05-26
`
`
`
`LAST APPLICANT(S)/OWNER(S) OF RECORD
`
`1. HAUTE SHOTS
`
`Address:
`
`HAUTE SHOTS
`
`10624 S. Eastem Ave, Suite A-141
`
`
`
`

`
`Henderson, NV 89052
`United States
`
`Legal Entity Type: Partnership
`State or Country Where Organized: Nevada
`Phone Number: 702-944-4181
`Fax Number: 702-944-4181
`
`GOODS AND/OR SERVICES
`
`
`International Class: 041
`
`Class Status: Active
`Photography services
`Basis: 1(a)
`First Use Date: 2009-04-15
`
`First Use in Commerce Date: 2009-07-10
`
`ADDITIONAL INFORIVIATION
`
`Concurrent Use: An opposition is pending for Haute Shot Serial No. 77/812,612. Applicants are in
`communication with the owner of Hot Shotz, Serial no. 77/739,628 and may file a proceeding before the
`TTAB.
`
`
`
`MADRID PROTOCOL INFORMATION
`
`(NOT AVAILABLE)
`
`
`
`PROSECUTION HISTORY
`
`
`NOTE: To view any document referenced below, click on the link to "Trademark Document
`Retrieval" shown near the top of this page.
`
`2011-05-26 — Report Completed Suspension Check Case Still Suspended
`
`2011-05-25 - Assigned To LIE
`
`2010-] 1-23 - Notification Of Letter Of Suspension E-Mailed
`
`2010-I 1-23 - LETTER OF SUSPENSION E-MAILED
`
`2010-11-23 - Suspension Letter Written
`
`2010-11-16 - Teas/Email Correspondence Entered
`
`2010-1 l-16 - Communication received from applicant
`
`2010-11-16 - TEAS Response to Office Action Received
`
`2010-10-21 - Attorney Revoked Ar1dfOr Appointed
`
`
`
`

`
`2010-10-21 - TEAS Revoke/Appoint Attorney Received
`
`2010-06-16 - Attorney Revoked And!Or Appointed
`
`2010-06-16 - TEAS Revoke/Appoint Attorney Received
`
`2010-05-21 - Notification Of Non-Final Action E-Mailed
`
`2010-05-21 — Non-final action e-mailed
`
`2010-05-21 - Non-Final Action Written
`
`2010-05-19 - Assigned To Examiner
`
`2010-02-19 - New Application Office Supplied Data Entered In Tram
`
`2010-02-19 - New Application Entered In Tram
`
`ATTORNEYICORRESPONDENT INFORMATION
`
`Attorney of Record
`Marcia Devon
`
`Correspondent
`Marcia Devon
`
`Devon & Associates
`
`400 Oceangate, Suite 800
`Long Beach CA 90802
`Phone Number: (562) 495-4000
`Fax Number: (562) 628-9274
`
`
`
`
`
`

`
`
`
`United States Patent and Trademark Office
`
`HomeISite IndexISearch IGuidesIContactsIeBusinessIeBiz alerts I NewsI Help
`
`
`
`Assignments on the Web > Trademark Query
`
`No assignment has been recorded at the USPTO
`
`For Serial Number: 77936397
`
`If you have any comments or questions concerning the da1a displayed. contact PRU ifitssignments at 571-272-3350. v.2.2
`Web inteiface last modified: July 25. 2011 V2.2
`
`I
`
`.HOME I INDEXI SEARCH I eBUSlNESS I CONTACT US I PRIVACY STATEMENT
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`
`
`

`
`Exhibit C
`
`to Declaration of Kevin S. Wilson
`
`
`
`

`
`Stacie Frazier
`
`Joseph Grimm
`Haute Shots
`
`10624 S. Eastern Ave, Suite A-141
`Henderson, Nevada 89052
`Telephone: (702) 944-4181
`Fax: (702) 944-4181
`Email: info@hautesh_ots.com
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`HAUTE SHOTS,
`a Nevada Partnership
`
`Opposer
`
`V
`
`Opposition No. 91194913
`
`RE: Trademark Application Serial No.77/812,612
`
`For the mark HAUTE SHOT
`
`Published in the Official Gazette on 04/20/2010
`
`AMENDED NOTICE OF OPPOSITION
`
`KELLY P. WILLIS
`
`
`Applicant
`
`
`
`AMENDED NOTICE OF OPPOSITION
`
`In the matter of trademark application Serial No.778l26l2 For the mark HAUTE SHOT, in
`international class 041, by Kelly Willis (“Applicant”) published in the Official Gazette on April
`20, 2010. Opposers Haute Shots, a Nevada partnership composed of Joseph Grimm and Stacie
`Frazier. (“Opposers”) believe that there would be damages by such regist