Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA617901
`ESTTA Tracking number:
`07/28/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207982
`Plaintiff
`Gface GmbH
`NED W BRANTHOVER
`ABELMAN FRAYNE & SCHWAB
`666 THIRD AVENUE , 10TH FLOOR
`NEW YORK, NY 10017
`UNITED STATES
`nwbranthover@lawabel.com, pjlynfield@lawabel.com
`Reply in Support of Motion
`Ned W. Branthover
`nwbranthover@lawabel.com, pjlynfield@lawabel.com
`/Ned W. Branthover/
`07/28/2014
`Opposer's REPLY in Support of Motion to Compel Discovery - SIGNED - July
`28, 2014.pdf(266413 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`E
`
`i1
`
`11
`
`
`
`
`
`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
`Filed: May 15, 2012
`______________________________________________________x
`
`Gface GmbH
`
`Opposer,
`
`.
`
`:
`
`Opposition No. 91207982
`
`iConnectUS LLC.
`
`OPPOSER’S REPLY IN SUPPORT OF MOTION TO COMPEL DISCOVERY
`
`INTRODUCTION
`
`Opposer Gface GmbH (“Gface” or “Opposer”) by and through its attorneys, submits this
`
`reply memorandum in support of its motion to compel Applicant iConnectUS LLC’s
`
`(“iConnectUS” or “Applicant”) Initial Disclosures and responses to Opposer’s First Set of
`
`Interrogatories and First Request for Documents (“Opposer’s Discovery Requests”) filed on March
`
`25, 2013.
`
`Applicantt’s response filed on July 23, 2014 is a non sequitur because Applicant completely
`
`ARGUMENT
`
`ignores Appiicant’s failure to file Initial Disclosures which were due on May 24, 2013, and
`
`Applicant blatantly and deiiberately misrepresents the facts concerning Applicant’s awareness of
`
`Opposer’s Discovery Requests and Opposer’s efforts to discuss Applicant’s responses to these
`
`discovery requests prior to filing the motion to compel.
`
`
`
`Pursuant to the TTAB Order dated February 25, 2013 Applicant’s Initial Disclosures were
`
`due on April 24, 2013. Applicant has never served any Initial Disclosures.
`
`In addition, Opposer properly served its Discovery Requests on March 25, 2013 to
`
`Applicant’s attorney Mark Morrison, Esq., who was Applicant’s attorney of record at that time. See
`
`Certificate of Services attached to Discovery Requests. (TTABVUE # 14, Exs. A and B)
`
`Therefore, Applicant’s responses were due on April 25, 2013.
`
`On April 26, 2013 Opposer granted Applicant, during a telephone conference with
`
`Applicant’s attorney Mark Morrison, a 30-day extension to respond to Opposer’s Discovery
`
`Request until May 24, 2013.
`
`On May 25, 2013 Mr. Morrison filed a Change of Correspondence Address substituting
`
`Applicant Mr. Michael Fetyko as the new representative for Applicant and provided an email
`
`address of mfetyl{o@iconnectus.com and a phone number of (949) 295~6607.
`
`As outlined in Opposer’s motion to compel, Opposer’s attorney exchanged emails directly
`
`with Mr. Michael Fetyko, principal of the Applicant, and left phone messages with Mr. Fetyko
`
`from May 31, 2013 through June 26, 2013 in an effort to determine whether Applicant was going to
`
`respond to Opposer’s Discovery Requests prior to "filing the motion to compel. (TTABVUE # 14,
`
`pp. 2-3, Exs. E-K) As can be seen, Mr. Fetyko sent M1‘. Branthover emails from the email address
`
`provided in the Change of Correspondence Address and Mr. Branthover sent Mr. Fetyko emails to
`
`this same email address. So there is no doubt that Mr. Fetyko received these emails and was
`
`deliberately avoiding and evading responding to Opposer’s Discovery Requests.
`
`On June 7, 2013 Mr. Branthover received an email from Mr. Barak Vaughn, an attorney
`
`with Gersh & Derby LLP, advising Mr. Bramthover that Mr. Vaughn’s firm is in the process of
`
`being retained by the Applicant. (TTABVUE #14, Ex. G) Mr. Vaughn never filed a Notice of
`
`Appearance, and on June 26, 2013 Mr. Branthover received an email from Mr. Barak Vaughn, with
`
`
`
`a copy to Mr. Fetyko, stating that he has declined to represent the Applicant. (TTABVUE #14, Ex.
`
`K)
`
`AppIicant’s argument that Opposer’s attorney “left the situation in an ambiguous status
`
`because Applicant had no way of knowing What was discussed between Messrs. Branthover and
`
`Mr. Vaughn” is absurd on its face because Mr. Fetyko was sent a copy of the email from Mr.
`
`Vaughn dated June 26, 2013 in response to Opposer’s attorney’s email of the same date making it
`
`clear that Mr. Vaughn was not representing Applicant and Opposer was seeking responses to its
`
`discovery requests that were past due. (TTABVUE # 14, p. 3, Exs. J, K)
`
`Applicant never responded to Opposer’s June 26, 2013 email, which is the reason Opposer
`
`filed the motion to compel. Applicant continues to avoid and evade discovery in its response to the
`
`motion to compel by falsely representing the facts and requesting sixty (60) days to respond to
`
`Opposer’s Discovery Requests which further delays these proceedings instead of responding to the
`
`Discovery Requests and serving its Initial Disclosures now.
`
`CONCLUSION
`
`Based on the aforesaid, 0pposer’s motion to compel should be granted; otherwise, the
`
`Board will be rewarding gamesmanship and bad faith conduct rather than enforcing standards for
`
`the fair and efficient administration ofjustice in inter partes proceedings which has caused Opposer
`
`prejudice in this proceeding. In granting the motion, the Board should waive Applicant’s right to
`
`
`
`assert objections other than attorney client privilege and require Applicants to respond to Opposer’s
`
`Discovery Requests and Initial Disclosures in fifteen (15) days.
`
`Date: July 28, 2014
`
`Respectfully Submitted,
`
`a/Q/Dam
`
`Ne W. Branthover
`
`ABELMAN, FRAYNE & SCHWAB
`666 Third Avenue
`
`New York, New York 10017
`Tel: 212-949-9022
`
`Fax: 212 949-9190
`
`Email: nwbranthover@lawabel.corn
`
`Attorneys for Opposer
`GFACE GMBH
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that this 28th day of July, 2014, a copy of the foregoing was sent via email
`
`and U.S. first-class mail to the following:
`
`Andrew Do
`
`OSWALD & YAP, APC
`16148 Sand Canyon Ave.
`Irvine, CA 92618
`
`Email: ado@oswa1d-yap.com
