Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA601878
`ESTTA Tracking number:
`05/01/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207982
`Defendant
`iConnectUS LLC
`ANDREW H DO
`OSWALD AND YAP
`16148 SAND CANYON AVENUE
`IRVINE, CA 92618
`UNITED STATES
`andrew.do@oswald-yap.com, ado@oswald-yap.com
`Opposition/Response to Motion
`Andrew H. Do, Esq.
`andrew.do@oswald-yap.com
`/Andrew H. Do/
`05/01/2014
`opposition to motion for default judgment.pdf(1177658 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`222,605
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`Opposition No. 91207982
`
`
`
`In the Matter of Serial No. 85/626,388
`Filed: May 15,2012
`-----------------------------------------------------X
`Crytek Entertainment GmbH,
`
`:
`
`
`:
`Opposer,
`:
`
`
`:
`
`
`:
`
`
`:
`
`
`:
`
`
`:
`Applicant.
`:
`
`
`:
`
`
`
`
`-----------------------------------------------------X
`
`
`
`
`v.
`
`
`iConnectUS LLC.
`
`
`
`
`
`
`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION
`
`FOR ENTRY OF DEFAULT JUDGMENT
`
`
`
`Applicant iConnectUS LLC (“Applicant”) by and through its attorneys submits this
`
`Opposition to Opposer’s Crytek Entertainment GmbH (“Opposer”) motion for entry of default
`
`judgment which was filed on September 23, 2013.
`
`
`
`On July 3, 2013 Opposer filed its Motion to Compel Discovery Responses. This Motion
`
`was mailed to an ineffective address (2299 Pacific Ave., Costa Mesa, CA 92627) that was
`
`provided by Applicant’s previous attorney, Mark Morrison, at the time of the substitution on
`
`May 27, 2013. Consequently, Applicant did not receive notice of this Motion. Please see
`
`Exhibit 1.
`
`Due to Applicant’s failure to file any opposition, on August 19, 2013 the TTAB issued an
`
`

`
`Order compelling Applicant to file its responses to Opposer’s discovery requests by September
`
`18, 2013. This Order was also mailed to the improper address above, and Applicant never
`
`received it. Please see Exhibit 2.
`
`
`
`On September 23, 2013 Opposer filed its Motion for Entry of Default Judgment due to
`
`Applicant’s failure to comply with the TTAB Order of August 19, 2013. Opposer’s Motion was
`
`again served at the same 2299 Pacific Ave. address as listed above. Therefore, Applicant also
`
`did not receive notice of this Motion. Please see Exhibit 3.
`
`
`
`On September 24, 2013 the TTAB issued an Order suspending proceedings pending
`
`disposition of Opposer’s Motion for Entry of Default Judgment. This Order was sent to the
`
`same ineffective address for Applicant and returned undelivered by the United States Postal
`
`Service. The TTAB was then able to locate Applicant’s correct address from its website online
`
`and thereafter issued an Order on March 3, 2014 granting Applicant fifteen days from that date
`
`to file its opposition. Please see Exhibit 4.
`
`
`
`Applicant retained its current counsel, Andrew Do of OSWALD & YAP, APC, on March
`
`18, 2014 who immediately filed on March 19, 2014 a Motion for Extension of Time to Respond
`
`pursuant to the TTAB’s Order of March 3, 2014. This Petition was granted on April 24, 2014,
`
`and Applicant was given ten days from that date to file this Opposition. Please see Exhibit 5.
`
`
`
`As outlined above, Applicant did not receive notice of the orders from the TTAB or
`
`Opposer’s motions. Applicant did not know that an improper address was provided to the
`
`TTAB by Applicant’s prior counsel. Regarding the discovery responses, Applicant attempted to
`
`hire counsel to address these issues with Opposer, and attorney Barak Vaughn communicated
`
`with Opposer’s counsel for this purpose until June 26, 2013.
`
`After Barak Vaughn terminated his representation of Applicant, Opposer was requested
`
`2
`
`

`
`by Mr. Vaughn to communicate directly with Applicant. Despite the fact that Opposer’s
`
`counsel had communicated directly by email with Applicant via Michael Fetyko before Mr.
`
`Vaughn got on the case there is no evidence that Opposer attempted to email Michael Fetyko
`
`again after Mr. Vaughn’s termination, either to obtain the responses or let him know of
`
`Opposer’s Motions.
`
`In view of Applicant’s lack of notice of the motions and orders that took place in this
`
`case, all within a three month period after attorney Barak Vaughn’s termination, there is ample
`
`evidence to demonstrate excusable neglect on the part of Applicant. In fact, Opposer’s counsel
`
`contributed to this neglect by not continuing to communicate with Michael Fetyko by email as he
`
`had done previously, especially when an opposition to Opposer’s motion to compel was not filed.
`
`From the email communication that took place it should have been clear to Opposer’s counsel
`
`that Applicant would not simply ignore its motion.
`
`Applicant respectfully request that the Board deny Opposer’s Motion for Entry of Default
`
`Respectfully Submitted,
`
`
`
`
`
`Andrew H. Do
`OSWALD & YAP, APC
`16148 Sand Canyon Avenue
`Irvine, California 92618
`Tel: 949-788-8900
`Fax: 949-788-8980
`Email: ado@oswald-yap.com
`
`Attorneys for Applicant
`iConnectUS LLC
`
`3
`
`
`
`
`
`
`
`
`
`Judgment.
`
`
`
`Date: May 1, 2014
`
`
`
`
`
`
`
`
`
`
`
`

`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that this 1st day of May, 2014, a copy of the foregoing was sent overnight courier
`
`(Federal Express) to the following:
`
`Mr. Ned W. Branthover
`ABELMAN, FRAYNE & SCHWAB
`666 Third Avenue
`New York, New York 10017
`Tel: 212-949-9022
`Fax: 212 949-9190
`
`
`
`Andrew H. Do
`
`
`
`4
`
`

`
`Exhibit 1
`Exhibit 1
`
`

`
`TrademarkTrial andAppeal BoardElectronicFiling Sysfem. hftp://estta.usoto.oov
`ESTTA Tracking number:
`ESTTA546592
`Fifins date:
`0710312013
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207982
`Plaintiff
`Crtek Entertainment GmbH
`NED W BRANTHOVER
`ABELMAN FMYNE & SCHWAB
`666 THIRD AVENUE lOTH FLOOR
`NEW YORK, NY 10017
`UNITED STATES
`nwbranthover@lawabel.com, pjlynfi eld@lawabel.com
`Motion to Compel Discovery
`Ned W. Branthover
`nwbranthover@lawabel.com
`/Ned W. Branthover/
`0710312013
`Opposer's Motion to Compel and Suspend with Exhibits - July 3,
`201 3.pdf(1 51 6985 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
`
`222,605
`
`In the Matter of Serial No. 85/626,388
`
`fiYl!!.:?i_1.'.. .__...__.___.x
`
`Crytek Entertainment GmbH,
`
`Opposer,
`
`Opposition N o. 9 1207 9 82
`
`v,
`
`iConnectUs LLC.
`
`Applicant.
`
`-------x
`
`OPPOSER'S MOTION TO COMPEL, SUSPE}ID PROCEEDINGS AND CORRECT
`OPPOSER'S NAME IN TH[', PTO DATABASE
`
`Opposer Crytek Entertainment GmbH C'Crytek'or "Opposer") by and through its attorneys,
`moves pursuant to Ruie 37 of the Federal Rules of Civil Procedure and37 C.F.R. $2.120(g)(i) for
`an order compelling Applicant iConnectUs LLC ("iConnectUS" or "Applicant") to provid.e its
`answers and documents in response to Opposer's written discovery requests consisting of Opposer,s
`Fhst Set of Interrogatories and Opposer's First Request for Production of Documents as well as for
`Applicant to produce its Initial Disclosures and that Applicant's failgre to do so will result in a
`judgment by default.
`
`It is simultaneously requested that proceedings be suspended until this Motion is decided
`and that all pretrial dates be appropriately extended by sixty (60) days. Under the current schedule,
`discovery will closed on September 27,2013. opposer requires Applicant's responses
`to discovery
`to prepare its case. It is respectfully requested that this motion be granted for the reasons set forth
`
`

`
`below since Applicant has completely failed to respond to Opposer's Discovery Requests or to any
`
`of Opposer's communications requesting its participation to discuss this issue.
`
`At the outset, Opposer requests that Opposer's name be corrected in the TTAB database
`
`because it is erroneously listed as "CRTEK" instead of "CRYTEK". See the Opposer's name as set
`forth in the Notice of Opposition.
`
`Opposer conducted its Rule 26(f) conference with Applicanfs attomey on or about March
`2 4 , 2 0 t 3 .
`
`On March 25,2013 Opposer served its Initial Disclosures.
`
`On March 25,2013 Opposer served its First Set of Intenogatories and First Request for
`Production of Documents ("Opposer's Discovery Requests") on Applicant. Applicant,s responses
`
`were due on April 24,2013. Copies of these Discovery Requests are attached as Exs. A-8.
`
`On April 26,2013 Opposer granted the Applicant a 30-day extension to respond to
`Opposer's Discovery Requests until May 24,2013. (Ex. C)
`
`On May 27,2013 Applicant's attorney Mr. Mark Morrison withdrew as counsel and
`substituted the Applicant as correspondent. @x. D)
`On May 31,2073 Opposer's attorney Mr. Ned Branthover sent an email to Applicant
`inquiring as to the status of Applicant's responses to Opposer's discovery requests and requesting a
`call to discuss same by June 5, 2013. (Ex.E)
`
`On June 5,2013 Opposer's attorney called Applicant and left a voice mail. In response,
`Applicant emailed Mr. Ned Branthover informing him that Applicant is traveling and will like to
`schedule a telephone conference on June 7,2013. On June 5,2013 lr4r. Ned Branthover's responded
`by email that any time on June 7,2013 is acceptable. (Ex. F)
`
`On or about June 7,2013 Opposer's attorney called Applicant and left a voice mail
`requesting Applicant to retum the call. Applicant has not retumed the call.
`
`

`
`On June 7,2013 Opposer received an email from Mr. Barak Vaughn, an attonrey with Gersh
`& Derby LLP, advising Mr. Branthover that Mr. Vaughn's firrn is in the process of being retained
`by the Applicant. (Ex. G)
`
`On June 10, 2013 Opposer's attorney Mr. Ned Branthover emailed Mr. Vaughn with a copy
`to Applicant, stating that Mr. Vaughn has not as yet filed a substitution of counsel and that
`Applicant is past due in submitting it's responses to Opposer's discovery requests. (Ex. II)
`
`On June 17,2013 Opposer's attorney Mr. Ned Branthover emailed Applicant inquiring what
`is Applicant's intention regarding this case and to schedule a call by June 19, 2013 to discuss
`Applicant's responses to Opposer's discovery requests. (Ex.I)
`
`On June 26,2013 Opposer's attorney Mr. Branthover sent an email to Mr. Vaughn and
`Applicant requesting responses
`to opposer's Discovery by July 3,2013. @x. O
`On June 26,2013 Opposer's attorney Mr. Ned Branthover received an email from Mr.
`Barak Vaughn stating that Mr. Vaughn has declined to represent the Applicant. (Ex. K)
`To date, Applicant has not responded to Opposer's June 25,2013 email which requests
`Applicant to discuss the discovery disputes or advise Opposer whether Applicant will be defending
`this proceeding or substituting a new attorney.
`
`On July 7,2013 Opposer's attorney Mr. Ned Branthover called Applicant,s listed phone
`number during business hours and the call was answered by a recording and a message was left
`detailing the reasons for the call and requesting a return call. Applicant did not return this call.
`Pursuarrt to Rule 2.120(e),the undersigned has made a good faith effort to resolve this
`matter in a manner that would avoid the need to file this Motion. As of the filing date of this
`Motion, Applicant has not responded to Opposer's Discovery Requests, nor provided a time to
`discuss the outstanding discovery disputes despite Opposer's repeated efforts to d.o so.
`
`

`
`For the foregoing reasotxt, it is respectfrrlly requested that this Motion to Compel be granted,
`
`that the opposition be suspended in the interim and that Applicant's failure to respond to this motion
`will result in a default judgment,
`
`Date: July 3,20L3
`
`ABELMAN, FRAYT{E & SCHWAB
`666 Thtud Avenue
`NewYork,NewYork 10017
`Tel;212-949-9022
`Fax:212 949-9190
`Email : nwbranthover@lawabel. com
`
`Attorneys for Opposer
`CRYTEK ENTERTAINMENT GMBH
`
`4
`
`

`
`CERTIFICATE qF SERVICE
`
`I hereby certifu that this 3rd day of July, 2013,a copy of the foregoing was sent via email
`and regular mail to the following:
`
`Mr. Michael Fetyko
`IConnect US
`2299 Pasifrc Avenue
`CostaMesa" CA 92627
`
`Email: mfetyko@iconnectus.com
`
`

`
`Exhibit 2
`Exhibit 2
`
`

`
`Trademark Tial and Appeal Board Electronic Filing Sysfem. httg//estta.usoto.gov
`ESTTA Tracking number:
`ESTTA539962
`Filins date:
`0512712013
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`Change of Gorrespondence Address
`
`Proceeding.
`Defendant
`
`91207982
`Defendant
`iConnectUS LLC
`
`Please change the correspondence address for the above party here as follows:
`
`Old Correspondence Address
`
`New Correspondence Address
`
`MARK MORRISON
`MORRIS AND ASSOCIATES
`93 S JACKSON STREET NO 34835
`SEATTLE, WA 98104
`UNITED STATES
`mark@mpaclassaction.com
`MICHAEL FETYKO
`ICONNECTUS
`2299 Pacific AVE
`Costa Mesa, CA92627
`UNITED STATES
`mfetyko@iconnectus.com Phone:949-295-6607
`Gertificate of Service
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by Facsimile or email (by agreement only) on this date.
`
`Respectfully submitted,
`/Mark Morrison/
`Mark Morrison
`mark@mpaclassaction.com
`05t27t2013
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`r Trademark Trial and Appeal Board
`P.O. Box 1451
`Af exandria, V A 22313-1451
`
`M a i l e d :
`
`A u g u s t L 9 , 2 0 L 3
`
`O p p o s i t i o n N o . 9 L 2 0 7 9 8 2
`
`Crytek Entertainment
`
`GmbH
`
`v .
`
`iConnect.Us LLC
`
`V e r o n i c a P . W h i t e , P a r a l e g a l S p e c i a l i s t :
`
`T h e r e c o r d
`
`s h o w i n g n o r e s p o n s e b y a p p l i c a n t
`
`t o o p p o s e r ' s
`
`m o t i o n
`
`t o c o m p e l
`
`( f i l e d
`
`, J u 1 y 3 , 2 0 1 3 ) ,
`
`t h e m o t i o n
`
`i s g r a n t e d
`
`a s c o n c e d e d .
`
`s e e T r a d e m a r k R u r e s 2 . t 2 0 ( e ) ( r ) a n d 2 . t 2 7 ( a ) .
`
`Accordingly,
`
`applicant
`
`is directed
`
`t.o serve on counsel
`
`f o r o p p o s e r , o n o r b e f o r e S e p t e m b e r 1 8 , 2 0 L 3 ,
`
`r e s p o n s e s
`
`t o :
`
`( 1 ) o p p o s e r ' s
`
`f i r s t
`
`s e t o f
`
`i n t e r r o g a t o r i e s ,
`
`( 2 ) o p p o s e r , s
`
`first
`
`set of
`
`requests
`
`for producLion
`
`of documents and
`
`t h i n g s ,
`
`a s w e l I a s p r o d u c e
`
`( 3 )
`
`i t s
`
`i n i t i a l
`
`d i s c l o s u r e s .
`
`Appricant must
`
`respond
`
`in
`
`furl
`
`and without
`
`objection
`
`on the
`
`m e r i t s
`
`t h e r e o f
`
`i n a s m u c h a s h e f a i l e d
`
`t o e i t h e r
`
`t i m e l y
`
`r e s p o n d o r
`
`t o o b j e c L
`
`t o s a i d d i s c o v e r y
`
`r e q u e s t s .
`
`s e e T B M p s
`
`5 2 7 . 1 r ( c )
`
`.
`
`s h o u l d a p p l i c a n t
`
`f a i l
`
`t o p r o v i d e
`
`t h e o r d e r e d
`
`r e s p o n s e s ,
`
`E h e n o p p o s e r ' s
`
`r e m e d y m a y l i e
`
`i n a m o t i o n
`
`f o r e n t r y o f
`
`

`
`OpposJ.ELon No. 9L2O7982
`
`sanctions
`
`in
`
`the
`
`form of entry of judgment, as appropriate.
`
`See Trademark RuIe 2.120 (g) (1) .
`
`Proceedings are resumed. Dates are reset as follows.
`
`Applicant' s Compel-Ied Discovery
`Responses Due
`Expert Disclosures Due
`Discovery Closes
`' s P r e t r i a l D i s c l o s u r e s
`P l a i n t i f f
`P l a i n t i f f ' s
`3 0 - d a y T r i a l P e r i o d E n d s
`Defendant's Pretrial Disclosures
`Period Ends
`Defendant's 30-day trial
`f 's Rebutt.al Disclosures
`Plaintif
`Plaintiff's
`1-5-day Rebuttsal Period Ends
`
`9 /L8/20L3
`9 /28/20L3
`t 0 / 2 8 / 2 0 L 3
`L2/L2/20L3
`L/26/20L4
`2/LO/20L4
`3 / 2 7 / 2 0 t 4
`4/LL/20]-4
`5/LL/20L4
`
`IN EACH INSTANCE, a copy of
`
`the
`
`transcript
`
`of
`
`testimony
`
`together wit,h copies of documentary exhibits,
`
`must be served
`
`on the adverse party within
`
`thirty
`
`days after
`
`completion
`
`of
`
`t a k i n g o f
`
`t e s t i m o n y .
`
`T r a d e m a r k R u l e 2 . L 2 5 .
`
`Briefs
`
`shall
`
`be filed
`
`in accordance with Trademark RuIe
`
`2 . I 2 8 ( a )
`
`a n d ( b ) .
`
`A n o r a l h e a r i n g w i l l
`
`b e s e t o n l y u p o n
`
`r e q u e s t
`
`f i l e d
`
`a s p r o v i d e d
`
`b y T r a d e m a r k R u l e 2 . I 2 9 .
`
`

`
`Exhibit 3
`Exhibit 3
`
`

`
`Trademark Trial and Appeal Board Electronic Filing Sysfern. htto://estta.usoto.oov
`ESTTA Tracking number:
`ESTTA560735
`Fifing date:
`0912312013
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207982
`Plaintiff
`Crytek Entertainment GmbH
`NED W BRANTHOVER
`ABELMAN FRAYNE & SCHWAB
`666 THIRD AVENUE lOTH FLOOR
`NEW YORK, NY 10017
`UNITED STATES
`nwbranthover@lawabel.com, pjlynfi eld@lawabel.com
`Motion for Default Judgment
`Ned W. Branthover
`nwbranthover@lawabel.com
`/Ned W. Branthover/
`09123t2013
`Opposer's Motion for Entry of Default Judgment - SIGNED - September 23,
`2O13.pdt(77783 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARI( OFFICE
`BEF.ORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`222,605
`
`In the Matter of Serial No. 85/626-388
`Filed: May 15,2012
`
`Crytek Entertainment GmbH,
`
`Opposer,
`
`Opposition No. 9 I 207982
`
`iConnectUS LLC.
`
`Applicant.
`
`OPPOSER'S MOTION F'OR ENTRY OF DEFAULT JUDGEMENT
`
`Opposer Crytek Entertainment GmbH ('Crytek" or "Opposer") by and through its attomeys,
`
`moves pursuant to Trademark Rule 2.120 (g) (t) and Rule 55 of the Federal Rules of Civil
`
`Procedure for entry of default Judgment against Applicant iConnectUS LLC ("Applicant,'or
`
`"iConnectUS").
`
`OnAugust 19,2013 the TTAB issued an Order compelling Applicant iConnectUS LLC to
`
`file ir responses to Opposer's discovery requests by September I 8, 201 3 and authorizing Opposer
`
`to move for entry ofjudgment in the event Applicant does not comply with this Order.
`
`

`
`Applicant did not respond to the discovery requests as required in this Order. Accordingly,
`
`Opposer requests that the TTAB enter a default judgment against Applicant and refuse registration
`
`of Applicant's application.
`
`Date: September 23, 2073
`
`ABELMAN, FRAYNE &, SCHWAB
`666 Third Avenue
`New York, New York 10017
`Tel:212-949-9022
`Fax:212949-9190
`Emai l : nwbranthover@l awabel. com
`
`Attorneys for Opposer
`CRYTEK ENTERTAINMENT GMBH
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that ttris 23rd day of September,Z}l3,a copy of the foregoing was sent via
`
`email and U.S. first-class mail to the following:
`
`Mr. Mcbael Fetyko
`lConnect US
`2299Pacifrc Avenue
`Costa Mesa" CA 92627
`
`Errail: mfetyko@iconnecfirs.com
`
`

`
`Exhibit 4
`Exhibit 4
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`i Afexandria, VA 22313-1451
`
`M a i l e d : M a r c h 3 , 2 0 L 4
`
`O p p o s i t i o n N o . 9 L 2 0 7 9 8 2
`
`Crytek Ent.ertainment GmbH
`
`v .
`
`iConnectus
`
`LLC
`
`V e r o n i c a P . W h i t e , P a r a l e g a l S p e c i a l i s t :
`
`T h e B o a r d n o t e s , a p p l i c a n t ' s
`
`c o p y o f
`
`t h e B o a r d ' s
`
`S e p t e m b e r 2 4 , 2 0 1 - 3 o r d e r s u s p e n d i n g p r o c e e d i n g s
`
`p e n d i n g
`
`d i s p o s i t i o n
`
`o f o p p o s e r ' s m o L i o n
`
`f o r s a n c t i o n s w a s r e t u r n e d
`
`u n d e l - i v e r e d b y
`
`t h e U n i t e d S t a t e s P o s t a l - S e r v i c e
`
`( U S P S ) .
`
`A f t e r
`
`a s e a r c h v i a
`
`f n t e r n e t
`
`t h e O f f i c e w a s a b l e
`
`t o o b t a i n
`
`a d i f f e r e n t .
`
`a d d r e s s . l
`
`A c c o r d i n g l y ,
`
`a c o p y o f
`
`t . h e B o a r d ' s o r d e r
`
`i s e n c l - o s e d
`
`a n d a d d r e s s e d
`
`t o a p p l i c a n t ,
`
`a s f o l l o w s : 2
`
`' Applicant
`reminded
`is
`of a party
`it
`that
`responsibility
`the
`is
`to a
`proceeding
`before
`t,he Board
`the Board has
`the party, s
`to ensure
`that
`current
`correspondence
`address.
`Furt.hermore,
`the
`responsibility
`for
`failure
`any
`receive
`to
`correspondence
`due Lo a change of address of
`which
`the Board has not been given
`separate writ.ten
`notice
`l-ies with
`t h e p a r t y o r
`i t s a t L o r n e y o r o t h e r a u t h o r i z e d
`r e p r e s e n t a t i v e .
`I f a
`party
`faiLs
`to notify
`the Board of a change of address, with
`the
`result
`that
`the Board
`is unabl-e
`the party,
`to serve correspondence
`on
`defauLt
`j u d g m e n t m a y b e e n t e r e d a g a i n s t
`t h e p a r t y .
`S e e T B M P 1 1 7 . 0 7 . A v a i l a b l e
`forms
`for
`filing
`a change of correspondence
`address and
`instruction
`f o r e l e c t r o n i c
`f i l i n g
`c a n b e f i l e d
`t . h r o u g h
`t h e T T A B ' s E l e c t r o n i c
`( E S T T A ) a t h t L p z / / e s L L a . u s p t o . q o v / .
`f o r T r a d e m a r k T r i a l s
`a n d A p p e a l s
`
`S y s t e m
`
`

`
`Opposition No. 9L207982
`
`M i c h a e l F e t y k o
`My Game Face LLC
`3 2 4 E l - 9 t h S t r e e t
`C o s t a M e s a , C A 9 2 6 2 7
`
`I n v i e w o f o p p o s e r ' s m o t i o n
`
`f o r s a n c t i o n s ,
`
`a p p l i c a n t
`
`i s a l l o w e d u n t i l
`
`F I F T E E N ( 1 5 ) D A Y S f r o m
`
`t h e m a i l i n g
`
`d a t e o f
`
`t h i s o r d e r
`
`t o
`
`r e s p o n d
`
`t o o p p o s e r ' s m o t i o n ,
`
`i f
`
`i t
`
`s o d e s i r e s .
`
`I f n o r e s p o n s e
`
`i s
`
`f i l e d ,
`
`o p p o s e r ' s m o t i o n w i l l
`
`b e g r a n t e d a s
`
`conceded.
`
`Proceedings
`
`otherwise
`
`remain SUSPENDED, and no party
`
`should
`
`file
`
`any paper
`
`that
`
`is not germane
`
`to opposer's
`
`m o t i o n .
`
`' A s
`
`t h e B o a r d ' s o r d e r a t
`a p p l i c a n t m a y v i e w
`a c o n v e n i e n c e ,
`g o v / t t a b v u e / v ? p n o =
`U R L : h t t p
`: / / t E a b v u e i n t . u s p t o .
`f o l l o w i n g
`t h e
`9 1 2 0 7 9 8 2 & p t y = O P P & e n o = L B .
`
`

`
`Exhibit 5
`Exhibit 5
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, V A 22313-1451
`Generaf Contact N umber: 57 1 -27 2-8500
`
`Mailed: April 24,2OI4
`
`Opposition No. 91207982
`
`Crytek Entertainment GmbH
`
`v.
`
`iConnectUs LLC
`
`Jennifer Krisp, Interlocutory Attorney:
`
`This proceeding is before the Board
`
`for consideration of applicant's March
`
`19, 2OL4 motion captioned as a "motion
`
`for an extension of time to respond,"
`
`wherein applicant seeks additional time to respond to the Board's March B,2OI4
`
`order.r The motion is fullv briefed.
`
`I Applicant's proof of service is not in compliance with Trademark Rule 2.119. The
`paragraph setting forth proof of service must clearly state the date and manner in
`which service was made, as well as the name and address of each party or person
`upon whom service was made. The Board's Manual of Procedure (TBMP) provides
`the following suggested format for a Certificate of Service (see TBMp $ 113.03):
`I hereby certify that a true and complete copy of the foregoing (insert title of
`submission) has been serued on (insert name of opposing counsel or party) by
`mailing said copy on (insert date of mailing), uia First class Mail, postage
`prepaid (or insert other allowed/appropriate method of detiuery) to: (set out
`name AND address of opposing counsel or party).
`Also, applicant's motion is not in compliance with Trademark Rule 2.126. All
`motions and briefs filed in a Board proceeding must be double-spaced pursuant to
`Trademark Rule 2.126(a)(1), and numbered pursuant to Trademark Rule 2.I26(a)(S).
`The Board's file for this proceeding has been updabed to reflect the appearance of
`Andrew H. Do, of oswald and Yap, on behalf of applicant. see TBMP S 112.0b
`(2013).
`
`

`
`Opposition No. 91207982
`
`After applicant's copy of the Board's September 24, 20t3 suspension order
`
`was returned undeliverable by the USPS, the Board issued an order allowing
`
`applicant until March 18, 2OI4 in which to file a response to opposer's September
`
`23, 2013 motion for default judgment. Applicant did not respond in the time
`
`allowed, and by way of his March 19, 2OL4 motion seeks an additional thirty days
`
`in which to do so. Accordingly, applicant's motion is a motion to reopen his time
`
`to respond to opposer's motion.
`
`Analvsis
`
`Under the applicable test, applicant must establish that his failure to
`
`act in a timely manner was the result of excusable neglect. In Pioneer
`
`Inuestment Seruices Co. u. Brunswick Associates L.P.,507 U.S. 380 (1993),
`
`discussed and adopted by the Board in Pumphin, Ltd. u. The Seed Corps, 43
`
`USPQ2d 1582 (TTAB 1997), the Supreme Court clarified the meaning and
`
`scope of "excusable neglect," as used in the Federal Rules of Civil Procedure
`
`and elsewhere. The Court held that the determination of whether a party's
`
`neglect is excusable is:
`
`at bottom an equitable one, taking account of all relevant
`circumstances surrounding the party's omission. These include... [1]
`the danger of prejudice to the [nonmovant], [2] the length of the delay
`and its potential impact on judicial proceedings, [3] the reason for the
`delay, including whether it was within the reasonabie control of the
`movant, and [4] whether the movant acted in good faith.
`
`Pioneer Inu. Serus. Co. u. Brunswick Assocs. L.P., supra at 395.
`
`

`
`Opposition No. 91207982
`
`In subsequent applications of this test, several courts have stated that
`
`the third Pioneer factor might be considered the most important factor in a
`
`particular case. See Pumpkin, Ltd. u. The Seed Corps, supra at 1586 n.7 and
`
`cases cited therein.
`
`Turning to the merits of applicant's motion, by way of applicant's assertion
`
`regarding a "miscommunication" from his former counsel regarding the new
`
`correspondence address for applicant, as well as applicant's asserted non-receipt
`
`of opposer's pending motion and of the Board's suspension order (as evidence by
`
`docket entry #19), the particular extent to which the reason for failing to act as
`
`required was within applicant's own control is unclear and indeterminable.
`
`Nevertheless, it has been applicant's obligation to assure that
`
`the Board's
`
`proceeding record is current and accurate with respect to all correspondence
`
`information (name, street address, email address; see Board order of March 3,
`
`20L4, fn. 1), to assure accurate communication with his counsel, and to assure
`
`that he is abreast of this proceeding and of his legal representation. Moreover,
`
`the Board's official online record of this proceeding is instantly updated upon the
`
`issuance of an order or the filing of a paper, and has continually been available in
`
`its entirety to applicant, and to his counsel, at any given time, since it was
`
`instituted in November. 20L2. Based on these factors. the third Pioneer factor
`
`favors opposer.
`
`Applicant states that he requested opposer's consent for his motion prior to
`
`filing it, which is the preferred practice; moreover, in its brief opposer does not
`
`

`
`Opposition No. 91207982
`
`contest this point. Other than the delay in receiving a ruling from the Board on
`
`its motion for default judgment, the record does not reflect that the delay
`
`occasioned by applicant's inaction has hindered opposer's ability to demonstrate
`
`the merits of its pending motion. Opposer sets forth no substantial prejudice
`
`that it will face, and the danger of prejudice to opposer in seeking to move
`
`forward with a default judgment, although present, is not substantial.2 Thus, the
`
`first Pioneer factor slightly favors applicant.
`
`The motion at issue was filed September 23, 2013, and the Board issued
`
`the suspension order the following day. Much of the delay since then has been
`
`caused by applicant's failure to take action or to stay abreast of this proceeding.
`
`The Iength of the delay is notable, as is the additional delay occasioned by
`
`applicant's most recent motion requesting additional time. The record does not
`
`reflect, however, that applicant's delay has had or will have a significant impact
`
`on judicial proceedings. Moreover, the Board has the discretion to disallow any
`
`further time to applicant to address opposer's pending motion, and to restrict
`
`applicant's ability to seek future extensions. In view of these circumstances. the
`
`second Pioneer factor is neutral.
`
`As to whether applicant has acted in good faith, it is apparent from the
`
`record that applicant has not been sufficiently attentive to his obligations and
`
`deadlines in this proceeding. Nevertheless, applicant's actions to secure counsel,
`
`both earlier in the proceeding and at present, do indicate that he does not seek to
`
`2 The Board acknowledges the delay of nearly four months due to the failure to issue
`the March 3, 2074 order in a more timely fashion.
`
`

`
`Opposition No. 91207982
`
`merely ignore or avoid this proceeding, and the record does not reflect that
`
`applicant's failure to timely respond to opposer's motion was an effort to willfully
`
`delay this proceeding. Thus, the fourth Pioneer factor slightly favors applicant.
`
`Upon full consideration of all of the circumstances of record, and bearing in
`
`mind that the Board favors resolving the issue of registrability on the basis of the
`
`merits and defenses asserted, the Board finds that applicant has minimally,
`
`though sufficiently demonstrated that its failure to take action as required was
`
`due to excusable neglect. In view of this finding, applicant's motion to reopen
`
`time is sranted as modified: specifically, applicant is allowed until ten (10) days
`
`from the mailine date of this order in which to file his brief in response to
`
`opposer's September 23, 2014 motion for entry of default judgment, failing which
`
`the Board will grant said motion as conceded.
`
`The Board will not entertain any further unconsented motion filed by
`
`deadline to take action. Moreover, any motion or paper filed by applicant which
`
`the record reflects has been filed, in whole or in part, to effectuate a delay to this
`
`proceeding is not likely to be granted the Board's deference.
`
`Finally, in the event that the parties have stipulated to the exchange of
`
`service copies by electronic mail pursuant to Trademark Rule 2.119(bXG), the
`
`Board advises that they reduce this stipulation to writing, and affirmatively
`
`confirm their proper designated correspondence addresses and email addresses.
`
`Regarding how this method of service has an impact on response times, the
`
`

`
`Opposition No. 91207982
`
`parties and their counsel are directed to TBMP S 113.05 (2013); see also
`
`McDonq,ld's Corp. u. Cambrige Ouerseas Deuelopment Inc., 106 USPQ2d 1339
`
`(TTAB 2013).
`
`Proceedings remain suspended pending disposition of opposer's motion for
`
`entry of default judgment.