throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA519401
`ESTTA Tracking number:
`02/01/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91203336
`Defendant
`Rush Couture, LLC
`DONNA MIRMAN
`GOTTLIEB RACKMAN & REISMAN PC
`270 MADISON AVE
`NEW YORK, NY 10016
`UNITED STATES
`dmirman@grr.com, efiling@grr.com, dbroome@grr.com
`Opposition/Response to Motion
`Donna Mirman
`dmirman@grr.com, rschuring@grr.com, cquintero@grr.com,
`steven@thebrandliaison.com, efiling@grr.com
`/DM/
`02/01/2013
`RushMemorandum.pdf ( 11 pages )(3427330 bytes )
`BarackDeclaration.pdf ( 3 pages )(880024 bytes )
`MirmanDeclaration.pdf ( 98 pages )(23883742 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`-________-___-________-_______-______--_____________-________________-__x
`
`RUSH PRODUCTIONS,
`
`Opposer,
`
`RUSH COUTURE, LLC,
`
`'
`
`v.
`
`Applicant.
`-_________-_________________-_____________________,_____________---_____x
`
`Opposition No. 91203336
`
`3 Application Nos. 85220991 and
`: 85221029
`: Forthe Marks: SPIRIT OF RUSH
`: COUTURE and CRYSTAL RUSH
`'
`
`APPLICANT’S MEMORANDUM IN OPPOSITION TO OPPOSER’S MOTION FOR
`
`SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. PRO. R. 56
`
`Applicant Rush Couture, LLC (hereinafter "Applicant”) respectfully submits this
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`memorandum in opposition to the motion for summary judgment submitted by Opposer
`
`Rush Productions (hereinafter “Opposer"). Applicant relies on this memorandum and
`
`the Declaration of Donna Mirman (hereinafter "Mirman Decl.”) with attached exhibits,
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`submitted herewith.
`
`I.
`
`FACTS AND BACKGROUND
`
`Applicant is a limited liability company under the laws of the state of Florida
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`located and doing business at 4028 N. 29"‘ Avenue, Hollywood, Florida 33020.
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`Applicant is in the business of designing, promoting, marketing and selling
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`apparel, primarily high quality t-shirts and sweatshirts, embellished with unique designs,
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`artwork and ornamentation , inclusive of crystals, patches, silk-screen artwork and other
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`

`
`embellishments. App|icant’s apparel is sold primarily on its website
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`www.rushcoutureapj:3arel.com as well as to upscale retail stores and boutiques.
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`As early as 2007, Applicant's principals operated a retail store in the name of
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`Rush, located in Seaside Heights, New Jersey. The name Rush for the store was
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`created because of both the proximity and connection to a nearby store named
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`“Adrenaline,” thereby trying_ to tap into the aura of the high energy crowd of the Seaside
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`Heights target market. The target market is both men and women, ages 16-25.
`
`Due to the popularity of Applicants clothing with the Seaside Heights crowd,
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`Applicant's clothing was featured on the MTV show Jersey Shore since as early as
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`2010.
`
`On January 19, 2012, Applicant filed intent to use Application Serial Nos.
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`85/2221029 for the mark CRYSTAL RUSH and 85/2220991 for the mark SPIRIT OF
`
`RUSH COUTURE covering “clothing for men and women, namely, t-shirts, dress shirts,
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`sweatshirts, sweaters, jeans, sweatpants, cargo pants, cargo shorts, dressed, scarves,
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`caps, hats and undergarments."
`
`ll.
`
`SUMMARY OF ARGUMENTS
`
`As shown herein, the marks at issue are different, the channels of trade are
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`different and there is no evidence of any actual confusion. Accordingly, it would be
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`inappropriate to find the marks confusingly similar as a matter of law on summary
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`judgment. Summary judgment is rarely appropriate in any inter—parties proceeding,
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`See eg., iJoyd’s Food products, Inc .v Eli's lnc., 25 USPQ2d 2027 (Fed. Cir. 1993);
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`

`
`and Opryiand USA , inc. v. GreatAmerican Music Show, Inc., 23 USPQ2d 1471 (Fed.
`
`Cir. 1992), and is clearly not appropriate in this case.
`
`Ill.
`
`APPL|CANT’S RESPONSE TO OPPOSER’S STATEMENT OF
`ALLEGED UNDISPUTED FACTS
`
`Applicant responds to Opposer’s Statement of Undisputed Facts as follows:
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`1. Applicant admits Opposer’s proposed Undisputed Facts Nos. 1 through 14.
`
`2.
`
`In proposed Undisputed Fact No. 15, Opposer maintains that “Bands routinely
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`sell t-shirts, other clothing items, and related merchandise at concerts and
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`otherwise in connection with the band." (Cecconi Decl. para 18) Applicant
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`denies this proposed undisputed fact. Ms. Cecconi is not purported to be an
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`expert on what bands “routinely do” and other than her lay opinion, there is no
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`evidence in the record to support this statement.
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`3. Applicant admits proposed Undisputed Facts Nos. 16 through 18.
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`4.
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`in proposed Undisputed Fact No. 19, Opposer maintains that “Since 2010,
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`Rush has enjoyed sales in excess of $14 million for its apparel products sold
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`in connection with tours or online alone.” (Cecconi Decl. para. 22) Applicant
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`denies this proposed undisputed fact. This is no evidence in the record to
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`support this purported fact. Ms. Cecconi statement is entirely unsupported
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`with any documentary evidence.
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`5. Applicant admits Opposer’s proposed Unidsputed Facts Nos. 20 through 36.
`
`IV.
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`OPPOSER’S FAILURE OF PROOF
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`Initially, Applicant notes that Opposer submits absolutely no competent evidence
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`

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`of its sales or advertising expenditures. There are no business records of any type
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`relating to sales revenues or advertising expenses offered by Opposer. The self-
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`serving statements of interested witnesses, standing alone, are not admissible
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`evidence. Accordingly, Opposer has submitted no evidence of sales or advertising to
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`support its claims.
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`A. SUMMARY JUDG MENT STANDARD
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`The Federal Rules of Civil Procedure, including rules relating to summary
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`judgment, generally govern Opposition Proceedings before the Trademark Trial and
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`Appeal Board. See, 37 C.F.R. § 2.1 16(a). Thus, the Board may grant summary
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`judgment only if there is no genuine issue of material fact and the moving party is
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`entitled to judgment as a matter of law. Anderson v. Liberty Lobby, lnc., 477 U.S. 242,
`
`257 (1986).
`
`In order to establish that a factual dispute is genuine, the non-moving party
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`needs only present evidence from which a trier of fact might return a verdict in its favor.
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`Id., 477 U.S. at 257. Therefore, in this instance, Applicant need only present some
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`evidence from which the Board might find that there is not a likelihood of confusion.
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`In
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`addition, the Board must view all the evidence in the light most favorable to the
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`Applicant, and since opposing factual inferences may arise from the same set of
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`undisputed subsidiary facts, the Board must draw all reasonable inferences in favor of
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`the Applicant. See e.g., Old Tyme Foods, Inc. v. Roundj/’s inc. , 22 USPQ2d 1542
`
`(Fed. Cir. 1992) (Federal Circuit reverses grant of summaryjudgment where the Board
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`did not properly draw all inferences in favor of non—moving party.)
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`

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`B. LIKE LIHOOD OF CONFUSION STANDARD
`
`In In re EJ. DupontDeNemours & Co.,177 USPQ 563 (CCPA 1973), the Federal
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`Circuit established certain factors for determining whether there is likelihood of
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`confusion. These Dupont factors are recited in Opposers’ brief. Those factors which
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`are relevant to Applicants argument herein include (i) the similarity or dissimilarity of the
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`marks in their entireties as to appearance, sound, connotation and commercial
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`impression; (ii) the similarity or dissimilarity of the established likely to continue trade
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`channels; (iii) the fame, or lack thereof, of the prior mark; (iv) the number and nature of
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`similar marks in use on similar goods; and (V) the nature and extent of any actual
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`confusion, or lack thereof. Applicant respectfully suggests that these are the most
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`important Dupom‘ factors in this case.
`
`C. THE MARKS ARE NOT SIMILAR
`
`Opposer is the rock band RUSH. The marks and registrations pertaining thereto,
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`which Opposer cites herein, are the word RUSH. Opposer owns three U.S.
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`registrations for this mark in International Classes 9, 25 and 41.
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`its principal
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`registrations are in Class 41 for “Entertainment in the nature of a musical and vocal
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`group,” and Class 9 for "Series of Pre—recorded phonograph records, audio and video
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`cassettes, audio tapes and compact discs featuring music.” This is Opposer’s principal
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`use in the marketplace. Opposer is a touring rock band that also produces and sells
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`original music. Opposer’s registration in Class 25 covers “T—shirts, hats, sweatshirts
`
`and jackets," is ancillary to its principal registrations. Opposer alleges that it has sold
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`goods in Class 25 "in connection” with its musical performances for over thirty years.
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`

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`Applicant sells clothing under the following marks SPIRIT OF RUSH COUTURE
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`and CRYSTAL RUSH, and it has applied to register these marks in Class 25 for various
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`types of men’s and women’s clothing.
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`The marks are clearly not identical, nor are they similar in their entireties as to
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`appearance, sound, connotation and commercial impression. Opposer's mark is a
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`simple and straightforward four letter word.
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`In contrast, Appiicant’s marks are complex
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`and convey a different connotation and commercial impression.
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`While Opposer's mark simply identifies a rock band, Applicants use of the words
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`COUTURE and CRYSTAL, appearing prominently in the respective marks, conveys an
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`impression of luxury and fashion. In fact, the word COUTURE is defined as “the
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`business of designing, making, and selling fashionable custom-made women’s
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`clothing.” Merriam Webster. Similarly, the word CRYSTAL conveys an impression of
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`luxury. Nowhere in Opposer’s brief or in the record is there any evidence that Opposer
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`sells luxury goods or goods that fall into the definition of “couture."
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`in addition, Applicant notes that Opposer argues that other elements of
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`Applicant's marks were disclaimed and therefore are of lesser importance and should
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`not be considered. This is an incorrect analysis since the marks must be considered in
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`their entireties. Opryland USA, Inc. v. Great American Music Show, Ina, supra
`
`(“Although it is often helpful to the decision maker to analyze marks by separating them
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`into their component words or design elements in order to ascertain which aspects are
`
`more or less dominant, such analysis must not contravene law and reason. When it is
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`

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`the entirety of the marks that is perceived by the public, it is the entirely of the marks
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`that must be compared")
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`Accordingly, this important Dupont factor weighs heavily in favor of Applicant.
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`D. THE TRADE CHANNELS ARE NOT SIMILAR
`
`Opposer states in its brief that its products are available at or near Opposer’s
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`concerts and on its website.
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`(Opposer’s brief p. 16). Opposer’s products are available
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`on its fan website, in a section called “Rush Backstage Club” at the far right of the page.
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`This has been Opposer’s principal, and perhaps o_my, channel of trade for the last thirty
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`years. There is absolutely no evidence or representation in the record that Opposer has
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`or intends in the future to change.
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`In addition, it is can be said with some certainty that
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`the Opposer’s popularity is primarily among persons of the same generation of its band
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`members. At a minimum, it could certainly not be established as an undisputed fact that
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`Opposer’s primary fan base and therefore customers are people under the age of 30.
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`in contrast, Applicants relevant trade channels will be high-end retail stores.
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`They will under no circumstances be marketed, promoted, or sold at Opposer’s concerts
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`or on any music fan based website.
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`In addition, the target market for Applicants goods
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`are a much younger generation, generally persons ages 18 -24. Accordingly, this
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`Dupont factor weighs in Applicant's favor.
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`E. OPPOS ER’S MARK IS NOT FAMOUS FOR CLOTHING
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`In order to be a famous mark, a mark must be widely recognized by the general
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`consuming public of the United States as a designation indicating a single source of
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`

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`goods or services. 15 U.S.C.A. Section 1125 (c) (2). Although Opposer submits
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`evidence of its recognition as a rock band, Opposer’s mark RUSH certainly does not
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`rise to the level of a “famous mark” under the Lanham Act. While the band Rush might
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`be known in the demographic of 40 through 60 year old males, it cannot be shown that
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`the band is well—known by the general consuming public of the United States. Supra.
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`In
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`any event, there is no evidence that consumers familiar with the rock band RUSH will
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`associate this mark RUSH with clothing or other goods in class 25. See Cuban Cigar
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`Brands, N. V. v. Valle Grande Limitada, 2007 WL 2344672 (TTAB 2007) (no likelihood of
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`confusion between the "famous” mark MONTECRISTO for cigars and MONTECRISTO
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`for olive oils and vinegar).
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`F. THE MARKETPLACE IS FULL OF SIMILAR MARKS FOR SIMILAR GOODS
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`Under Dupom‘ “the number and nature of similar marks in use on similar goods"
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`is a factor that must be considered in determining likelihood of confusion. Evidence of
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`actual use of similar marks for similar goods reasonably supports an inference that a
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`mark is weak.
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`In the instant case, a number of entities are using very similar or identical marks
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`for the very similar and in some cases identical goods. For example:
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`1. ADRENALINE RUSH is registered and in use in the marketplace for clothing
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`including t—shirts. See Reg. No. 3,436,790 and Mirman Decl. This entity
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`claims to have been using this mark since 2007, and its website store located
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`at wvvw.adrelinerush.com displays t—shirts that can be said to have the same
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`“rock and roll’' feel that Opposer alleges is present in the Applicant‘s goods.
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`

`
`2. RUSH is registered and in use in the marketplace for men’s and women's
`
`clothing. This mark is registered by a Professional Hockey club and has been
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`in use since 2007. See, Reg. No. 3,746,109 and Mirman Decl.
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`3. SUGAR RUSH is registered and in use in the marketplace for various types
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`of women’s and children’s clothing. See Reg. No. 3,214,607 and Mirman
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`Decl. This entity claims to have used the mark since 2006.
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`4. CHICAGO RUSH is registered and in use in the marketplace for numerous
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`types of men’s and women's clothing, including tee~shirts. See Reg.
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`2,706,181 and evidence of use in the Mirman Decl. This registration indicates
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`that this mark has been in use for more than a decade.
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`5. KP RUSH is registered and in use in the marketplace for caps, jerseys and
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`tops. See Reg. No. 3,585,542 and evidence of use submitted with the
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`Mirman Declaration.
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`These are just a few of the similar marks for identical goods which are currently
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`in use in the marketplace. This Dupont factor weighs heavily in favor of Applicant.
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`Moreover, the totality of the third party trademark usage of “RUSH” marks serves
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`to undermine Opposer’s argument that RUSH is a famous mark. See Accuride Intem.,
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`Inc. v. Accuride Corp., 10 USPQ2d 1589 (9”‘ Cir. 1989) (the term ACCURIDE for drawer
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`slides was not sufficiently distinctive due to third party trademark usage); Accord Fruit of
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`Loom, Inc. v. Girouard, 26 USPQ2d 1782 (g"‘ Cir. 1993).
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`

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`G. THERE IS NO EVIDENCE OF ACTUAL CONFUSION
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`Finally, there is absolutely no evidence of any actual confusion in the record.
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`Applicant has been in business since 2007, during all of the time there is no evidence
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`any confusion whatsoever. This factor also weighs in favor of Applicant.
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`CONCLUSION
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`On a motion for summary judgment, the Board is required to view all of the
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`evidence in a light most favorable to Applicant, and must draw all reasonable inferences
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`in its favor. Given the fact that the marks are not identical, there are a multitude of third
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`parties using similar or identical marks for similar or identical goods, and there is no
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`evidence of any actual confusion, summary judgment is not appropriate. A reasonable
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`fact finder could easily find that there is no likelihood of confusion.
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`Respectfully submitted,
`
`Gottlieb, Rackman & Reisman, P.C
`Attorneys for Applicant
`270 Madison Avenue
`
`
`
`Dated: February 1, 2013
`
`New York, New York
`
`10
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`

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`CERTIFICATE OF ELECTRONIC FILING
`
`I hereby certify that a copy of the foregoing APPLICANT’S
`MEMORANDUM IN OPPOSITION TO OPPOSER’S MOTION FOR SUMMARY
`JUDGMENT PURSUANT TO FED. R. CIV. PRO. R. 56 and DECLARATION OF
`DONNA MIRMAN is being electronically filed with the United States Patent and
`Trademark Office on this 15‘ day of February, 2013.
`
` /Donna
`
`rrman
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing
`APPLlCANT’S MEMORANDUM IN OPPOSITION TO OPPOSER’S MOTION FOR
`SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. PRO. R. 56 and
`DECLARATION OF DONNA MIRMAN has been sewed upon Opposer, at their
`address of record by email (by agreement) and by first class mail on this date.
`
`Mark J. Liss, Esq.
`Michelle L. Zimmermann, Esq.
`Leydig, Voit & Mayer, Ltd.
`Two Prudential Plaza
`
`180 N. Stetson Avenue, Suite 4900
`Chicago, Illinois 60601-6731
`mzimmermann@ieydig.com
`
`Dated: February 1, 2013
`
`By: *1
`
`
`
`Donna
`
`irman
`
`

`
`IN THE UNITED STATES PATENT AND TRAHENLARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`RUSH PRODUCTIONS,
`
`Opposer,
`
`V.
`
`RUSH COUTURE, LLC,
`
`Agplic am.
`
`\_/'-—-I‘-_w‘-.r'\—4'\.or'\.p’
`
`I
`
`Opposition No_ 91203335
`Serial No. 35/220,991
`Serial No. 85/221,029
`
`DELC
`
`ION OF BA
`
`K T SSINE
`
`I, BARAKI-IASSTNE, being duly sworn deposes and dtclares as follows:
`
`1.
`
`Iain a managing member mi’ Applicant Rush Couture, LLC, (hereinafter
`
`“Applicant”) and I siibmit this declaration in opposition to the motion for summary judgment
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`Submitted by Opposer Rush Productions (hereinafter “Opp0se1’").
`
`QAQEGROUND
`
`2.
`
`Applicant is a limited liability company under the laws of the state of Florida
`
`located and doing business at 4028 N. 29”‘ Avenue, Hollywood, Floiida 33020.
`
`3.
`
`Applicant is in the business of designing, promuting, marketing and selling
`
`apparel, primarily high quality t-shirts and sweatshirts, embellished with unique designs,
`
`artworli and omatnentution, inclusive ofcI"ys.tals, patches, silk—screen artwork and other
`
`embellishments.
`
`4.
`
`Applicaxifis apparel is sold primarily on its websitc:
`
`WWw.mShcgutureapparel.com as well as to upscale retail stores and boutiques.
`
`5,
`
`As early as 2007, I operated a. retail store in the name ofRush, located in
`
`_ Seaside Heights, New Jersey;
`
`

`
`6.
`
`The name Rush for the store was created because of both the proxixnity and
`
`connection to a nearby store named “Adrenaiine,” thereby trying to tap into the aura ofthe high
`
`eneray crowd ofthe Seaside Heights target market.
`
`7.
`
`8.
`
`The target market for our products is both men and women, ages 16~25.
`
`Due to the popularity of Applicanfs clothing with the Seaside Heights crowd,
`
`Applicanfs clothing was featured on the MTV show Jersey Shore since as early as 2010.
`
`9.
`
`I
`
`On January 19, 2012, Applicant filed intent to use Application Serial Nos.
`
`85/2221029 for the mark CRYSTAL RUSH and 85322099] for the mark SPIRIT OF RUSH
`
`COUTURE covering “clothing for men and women, namely, t-shirts, dress shirts, sweatshirts,
`
`sweaters, jeans, sweatpants, cargo pants, cargo shorts, dressed, scarves, caps, hats and
`
`undergarments."
`
`10.
`
`As set forth herein and in the accompanying memorandum, the rnarks at issue
`
`are different, the channels of trade are diiferent and there is no evidence of any actual
`
`cc-nfilsion.
`
`D1§flECT TARGET MARKETS AND CHANNELS OF DISfL'§!B!§ [ 55 {E
`
`11.
`
`Our target market is a 16-25 year old high-energy individual, similar to those
`
`depicted on the televisi-an Show “The Jersey Shore” and the consumers that emulate the Jersey
`
`Shore cast. Our customers are into fist—pumping, techne-club music and it is highly unlikely
`
`that our customer base ever heard the 80’s Rock and R011 Band, Rush, no iass desire to wear
`
`their merchandising.
`
`‘12.
`
`Our merchandise is sold in stores that cater to this target market and is also sold
`
`on our website, www.RushC9_1g;;;re3;ggre1.@m, which has been designed to appeal to those
`
`customers. Our website features young, Italian-looking models and depicts body builders and
`
`

`
`MMA fighters. Our website looks nothing like a tribute to the Rock and Roll Band.
`
`13.
`
`On the other hand, the target market for Rush, the rock and roll band, are
`
`individuals now in their 40’s, 50’s or 6-0°s that enjoy classic rock. Not techno—club music.
`
`14.
`Rush, the rock and roll band merchandise is sold at Rush concerts, and on its
`website. The parties respective website do not look alike and do not lead to any likelihood of
`
`confusion.
`
`15.
`
`Clearly, these target markets and channels of distribution are quite distinct, and
`
`not likely to overlap. Moreover, on a motion for summary judglnent, likelihood of coufizsiou
`
`cannot be found to exist as a matter of law.
`
`MARKS AT _I,§§[J§
`
`16.
`
`In fact, the only issue before this panel is the Applicants intent to use
`
`registrations for Spirit of Rush Couture and Crystal Rush. Clearly, there is no iiiaelihood of
`
`Oonfilsion with Opposers, single would mark, Rush. ‘
`
`17 .
`
`The additional words such as Spirit of, Crystal and Couture all create distinct
`
`marks and distinguish the Applicants marks from the Opposefs mark.
`
`18.
`
`Accordingly, for the reasons set forth in the attached memorandum, summary
`
`judgment must be denied.
`
`I declare under penalty of perjury that the foregoing is time and correct.
`
`Date: February 1, 2013
`
`amk I-Iassme
`
`Foo-1-:3‘
`
`1 Since the issue in the mattter is based on 2 intexrt to use marks, 0pposer’s submission of
`merchandise previously sold by Applicant is irrelevant.
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`RUSH PR0DUCTl0N5=
`
`Opposer.
`
`V.
`
`RUSH COUTURE, LLC,
`
`Applicant.
`
`\J\J\-./‘-u./\_/\_/\../
`
`1
`
`Opposition No. 91203336
`Serial No. 85/22 0,991
`Serial No. 85/221,029
`
`DELCARATION OF DONNA MIRMAN
`
`1, Donna Mirman, pursuant to 28 U.S.C. § 1746, declare as follows:
`
`1.
`
`lam over the age of 18 and am an attorney at the law firm of Gottlieb, Rackman
`
`& Reisrnan, PC..
`
`I am competent to testify regarding the matters set forth herein and make this
`
`Declaration upon my personal knowledge.
`
`2.
`
`Attached as Exhibit A is a status copy of Registration No. 3214607 for the mark
`
`SUGAR RUSH, downloaded from the U.S. Trademark Office database and showing the current status
`
`of the registration and true and correct printouts from Applicant's website showing various products
`
`for sale under the mark.
`
`3.
`
`Attached as Exhibit B is a status copy of Registration No. 3436790 for the mark
`
`ADRENALINE RUSH, downloaded from the U.S. Trademark Office database and showing the
`
`current status of the registration and true and correct printouts from Applicant's website showing
`
`various products for sale under the mark.
`
`4.
`
`Attached as Exhibit C is a status copy of Registration No. 3746109 for the mark RUSH,
`
`downloaded from the U.S. Trademark Office database and showing the current status of the
`
`registration and true and correct printouts from Applicant's website showing various products for sale
`
`

`
`under the mark.
`
`5.
`
`Attached as Exhibit D is a status copy of Registration No. 3826919 for the mark
`
`RAPID CITY RUSH, downloaded from the U.S. Trademark Office database and showing the current
`
`status of the registration and true and correct printouts from Applicant's website showing various
`
`products for sale under the mark.
`
`6.
`
`Attached as Exhibit E is a status copy of Registration No. 3665493 for the mark RD
`
`RUSH DEAL, downloaded from the U.S. Trademark Office database and showing the current status
`
`of the registration and true and correct printouts from Applicant's website showing various products
`
`for sale under the mark.
`
`7.
`
`Attached as Exhibit F is a status copy of Registration No. 3803664 for the mark
`
`LIQUID RUSH, downloaded from the U.S. Trademark Office database and showing the current status
`
`of the registration and true and correct printouts from Applicant's website showing various products
`
`for sale under the mark.
`
`8.
`
`Attached as Exhibit G is a status copy of Registration No. 2697416 for the mark RUSH
`
`GORDON RUSH, downloaded from the US. Trademark Office database and showing the current
`
`status of the registration.
`
`9.
`
`Attached as Exhibit H is a status copy of Registration No. 2273047 for the mark
`
`GORDON RUSH, downloaded from the U.S. Trademark Office database and showing the current
`
`status of the registration and true and correct printouts from Applicant's website showing various
`
`products for sale under the mark.
`
`10.
`
`Attached as Exhibit I is a status copy of Registration No. 3544978 for the mark
`
`GORDON RUSH, downloaded from the U.S. Trademark Office database and showing the current
`
`status of the registration and true and correct printouts from Applicant's website showing various
`
`products for sale under the mark.
`
`11.
`
`Attached as ExhibitJ is a status copy of Registration No. 3145705 for the mark DARK
`
`RUSH, downloaded from the U.S. Trademark Office database and showing the current status of the
`
`

`
`registration.
`
`12.
`
`Attached as Exhibit K is a status copy of Registration No. 3044531 for the mark RUSH
`
`JUNKYS, downloaded from the U.S. Trademark Office database and showing the current status of the
`
`registration and true and correct printouts from Applicant's website.
`
`13.
`
`Attached as Exhibit L is a status copy of Registration No. 3497654 for the mark FEEL
`
`THE RUSH, downloaded from the U.S. Trademark Office database and showing the current status of
`
`the registration.
`
`14.
`
`Attached as Exhibit M is a status copy of Registration No. 2712483 for the mark FEEL
`
`THE RUSH, downloaded from the U.S. Trademark Office database.
`
`15.
`
`Attached as Exhibit N is a status copy of Registration No. 3712356 for the mark
`
`RUSH, downloaded from the U.S. Trademark Office database and showing the current status of the
`
`registration and true and correct printouts from Applicant's website showing various products for
`
`sale under the mark.
`
`16.
`
`Attached as Exhibit 0 is a status copy of Registration No. 2706181 for the mark
`
`CHICAGO RUSH, downloaded from the U.S. Trademark Office database and showing the current
`
`status of the registration and true and correct printouts from Applicant's website showing various
`
`products for sale under the mark.
`
`17.
`
`Attached as Exhibit? is a status copy of Registration No. 2947104 for the mark
`
`CHICAGO RUSH, downloaded from the U.S. Trademark Office database and showing the current
`
`status of the registration and true and correct printouts from Applicant's website.
`
`18.
`
`Attached as Exhibit Q is a status copy of Registration No. 3585542 for the mark KP
`
`RUSH, downloaded from the U.S. Trademark Office database and showing the current status of the
`
`registration and true and correct printouts from Applicant's website showing various products for
`
`

`
`sale under the mark.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Date: January 31, 2013
`
`Donna Mi man
`
`uLAJ/K2
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91203336
`Serial No. 85/220,991
`Serial No. 85/221,029
`
`) )
`
`)
`)
`)
`)
`
`) )
`
`1
`
`RUSH PRODUCTIONS,
`
`Opposer,
`
`v,
`
`RUSH COUTURE, LLC,
`
`Applicant.
`
`DECLARATION OF DONNA MIRMAN
`
`EXHIBIT A
`
`

`
`J. rauemarx blectromc Search System ('1‘l:.'S S)
`
`Page 1 of 2
`
`
`
`United States Patent and Trademark Office
`
`I-lorne [Site Index [Search I FAQ I Giossaryleiuides I Contacts I eflusiness I eBiz alerts I Newsi Help
`
`Trademarks >-Trademark Electronic Search System (TESS)
`
`TESS was last updated on Thu Jan 31 05:02:46 EST 2013
`
`L090!-It Please iogout when you are done to release system resources allocated for you.
`
`Record 1 out of 1
`
`TSDR
`
`
`
`ASS.I.IS:!l.Status__
`"al“TA8 Status. H
`return to TESS)_
`
`_:
`
`( Use the "Back" button of the Internet Browser to
`
`SUGAR RUSH
`
`Word Mark
`
`SUGAR RUSH
`
`Goods and
`Services
`
`Standard
`Characters
`Claimed
`
`D"““"""9
`Serial Number
`
`Filing Date
`Current Basis
`
`Original Filing
`Basis
`Published for
`Opposition
`Registration
`Number
`
`IC 025. US 022 039. G & S: Women's and children's clothing, namely dresses, skirts, trousers.
`blouses, sweaters, tops. jackets, shorts and jeans. FIRST USE: 20060501. FIRST USE IN
`COMM ERCE: 20060501
`
`(4) STANDARD CHARACTER MARK
`76659773
`
`May 9, 2006
`1A
`
`1A
`
`December 19, 2006
`
`3214607
`
`Registration Date March 6, 2007
`
`Owner
`
`(REGISTRANT) Ardmore Blouse, Inc. CORPORATION NEW YORK 132 West 36th Street New
`York NEW YORK 10018
`
`(LAST LISTED OWNER) KBL GROUP INTERNATIONAL, LTD. CORPORATION NEW YORK
`1410 BROADWAY 7TH FLOOR NEW YORK NEW YORK 10018
`
`Assignment
`Recorded
`
`ASSIGNMENT RECORDED
`
`Attorney of Record Paul Hawthorne
`Type of Mark
`TRADEMARK
`
`Register
`LivelDead
`Indicator
`
`PRINCIPAL
`
`LIVE
`
`http://tess2.uspto.gov/bin/showfie1d?1%doc&state=4004:akvqi3.2.1
`
`1/31/2013
`
`

`
`if [H I3
`
`DUQBT RUSH U!’ 855 Ill UIUUIBS at N‘dSl.)' Ual
`
`M 941/3112:’Dress
`
`$40.60 $5S:99 Sale
`
`Slyie#: 16148
`
`The cutest lilac chiffon dress featuring a wrap frontwilh laced Eayer. Tied cutout back. partially
`lined. Looks amazing paired with a wide-brim hai and Eaced piatforms!
`
`*1UO"/o Polyester
`‘34" length
`‘Model is wearing size smail
`"Runs true to size
`‘Hand wash caid
`‘Made in USA
`
`\w.w.nast3ga|.corn'producl/sug ar-rush-dress
`
`%.$?iC>:—X”§J A §*i~€*.’I>"§"€}
`
`
`‘FD S£E Hi §"iCS
`
`1l2
`
`

`
`1f1'/I13
`
`sugar RUSH UFBSS Ifl L}|O'i.|"l€5 all Nasty bill
`
`'3') 2006-2013 NASTY GAl.WC,Al1 RIGHTS RESERVED
`
`l—85€1-627489-H2
`
`FRWACY POLICY
`
`TERMS OF USE
`
`$l':'E MAP
`
`www.nastyga|.con1/product/sugar-rush-dress
`
`212
`
`

`
`'.'Il'l {I15
`
`DUQHF HUSH DlOUS9 lfl l.:|0lF|BS bare at Nasty UB1
`
`/V/my
`
`Style #: 19309
`
`Rush
`Blouse
`$26.60
`
`Sole
`
`Sweel chiffon colorblock blouse featuring blush. cream. and hot pink panels. Black bullon
`closures. cut longer al back. Perfeol tucked into high-waist cutoffs with wedges! ANastyGal
`exclusive!
`
`*1ElU% Polyester
`'23" langlh a1fronl,2T"|ength at back
`‘Model is wearing size small
`‘Runs true to size
`‘Hand wash cold
`‘Made in USA
`
`UPi,Ofi{E £5. 9?i*IDT®
`
`CUE?’ Tl} SEE ALL PICS
`
`\lw\.w.nastyg al.com'producl/sug ar-rush~b|ousel__lsearchStringlsug ar rush
`
`1/2
`
`

`
`EXHIBIT B
`
`

`
`Trademark Electronic Search System (TESS)
`
`Page 1 of 2
`
`United States Patent and Trademark Office
`
` Home I Site Index I Search I FAQ {Glossary I Guides Icontacts I efiusiness I eBiz alerts I News I Help
`
`Trademarks > Trademark Electronic Search System (TESS)
`
`TESS was last updated on Thu Jan 31 05:02:46 EST 2013
`
`1-OQOUI
`
`I Please logout when you are done to release system resources allocated for you.
`
`Record 1 out of 1
`
`_
`
`.,~....,w,..,.,..,..__w,__..___....,...,._......_._._._._._-,.._
`
`I« ASSIGR sliiggi;
`
`return to TESS)
`
`
`
`'¥1r‘i*'".«'i.ié:'§t';?a'T:":':'.='-.'
`'
`'
`'
`
`( Use the "Back" button of the Internet Browser to
`
`ADRENALINE RUSH
`
`Word Mark
`
`ADRENALINE RUSH
`
`IC 025. US 022 039. G & S: CLOTHING, NAMELY, T-SHIRTS, SHIRTS, TANK TOPS,
`SWEATSHIRTS, PULLOVERS, PANTS. SHORTS. HATS, CAPS, AND SHOES. FIRST USE:
`20070120. FIRST USE IN COMMERCE: 20070320
`
`Goods and
`Services
`
`Standard
`Characters
`Claimed
`
`°""""‘"9
`Serial Number
`
`(4) STANDARD CHARACTER MARK
`77029548
`
`Filing Date
`Current Basis
`
`October 25, 2006
`1A
`
`Original Filing
`Basis
`
`Published for
`opposition
`
`Registration
`Number
`
`1B
`
`June 5. 2007
`
`3436790
`
`Registration Date May 27, 2008
`
`Owner
`
`(REGISTRANT) Adrenaline Rush L.L.C. LIMITED LIABILITY COMPANY ARIZONA PO Box
`10583 Glendale ARIZONA 85318
`
`Type of Mark
`
`TRADEMARK
`
`Register
`Live!Dead
`Indicator
`
`PRINCIPAL
`
`LIVE
`
`http://tess2.uspto.gov/bin/showfie1d?%doc&state=4004:akvqi3 .3. 1
`
`1/31/2013
`
`

`
`IHHIJ
`
`l'I\J'lVlL_
`
`1*; (twp-,x; ag;-*3? 2=3{EE3
`
`adrena|in:.=,rush.comIARlHOM E.html
`
`111
`
`

`
`
`
`ma-xfixmN3..,mo.vjmxmMd.
`
`mmfimwe.T_..<..OGEr.mwma8.ximwI4.
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`mm5328:
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`
`
`
`£__;m§...,.¢§.£§_mman...5,.a.%;§was.3...
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`
`
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`_EE.0Z_I.wO._OlmZ.n._s_E<Eou.%Em=__m_§um
`
`

`
`EXHIBIT C
`
`

`
`AA\4i..l.|.rlA,.l1.oA.AI. ;.4u.«u-4 \l11.l\J us.-uatuu >..r_y.::u..ni. \ 1. .1_n.1u}
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`L1tlp.JI LGbb¢.Ll.bpl.£.J.gU V.‘ U11L'gi:[lU.B)§.U .’1‘-L1UUOLSl2:1lt5“l-UU 1:31 /UIl']Z.J. 1
`
`United States Patent and Trademark Office
`
` Home {Site Indexlsearch 1 FAQ 3 Glossary 3 Guidesicontacts §eBusiness I eBiz alerts § News! Help
`
`:>«4\
`
`Trademarks > Trademark Electronic Search System (TESS)
`
`TESS was last updated on Tue Jan 15 05:02:46 EST 2013
`
`
`
`._ogout_§ Please logout when you are done to release system resources allocated for you.
`
`Record 1 out of 1
`
`
`iJ|;A>L_~A.—_A
`».a!‘3»:»7ai'
`
`rerun to 58}
`
`Rush
`
`( Use the "Sack" button of the Internet Browser to
`
`Word Mark
`
`RUSH
`
`Goods and
`Services
`
`IC 016. US 002 005 022 023 029 037 038 050. G & S: printed materials and paper goods, namely,
`magazines about hockey; stationery, brochures and pamphlets about hockey; newspapers featuring
`hockey; printed paper signs, trading cards and albums therefor, souvenir programs concerning hockey,
`printed schedules, press re

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