Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA523423
`ESTTA Tracking number:
`02/25/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91208865
`Defendant
`Lutron Electronics Co., Inc.
`NICOLE K MCLAUGHLIN
`DUANE MORRIS LLP
`30 S 17TH ST FL 5
`PHILADELPHIA, PA 19103-4196
`UNITED STATES
`nkmclaughlin@duanemorris.com
`Motion to Dismiss - Rule 12(b)
`Nicole K. McLaughlin
`nkmclaughlin@duanemorris.com, pdmcpherson@duanemorris.com
`/Nicole K. McLaughlin/
`02/25/2013
`Applicants Motion to Dismiss and Brief in Support Thereof.pdf ( 14 pages
`)(3340594 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
`
`In re Serial No. 85/298,600
`Mark: Product Configuration for Light Switch/Dimmer
`
`PASS & SEYMOUR, INC.,
`
`Opposer,
`
`2
`
`Opposition No. 91/208,865
`
`LUTRON ELECTRONICS CO., INC.,
`
`APPLICANT’S MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF
`
`Pursuant to 37 C.F.R. § 2.116(a) and Fed. R. Civ. P. 12(b)(6), Applicant, Lutron
`
`Electronics Co., Inc. (“Lutron”), hereby moves to dismiss Opposer’s Notice of Opposition for
`
`failure to state a claim for which relief can be granted on alleged claims of fraud.
`
`The Notice of Opposition fails to assert fraud with particularity because it is not directed
`
`to any conduct regarding the features that make up Lutron’s Mark, it does not identify how the
`
`allegedly withheld information is material to the registrability of Lutron’s Mark, or even
`
`remotely begin to allege sufficient facts from which an intent to deceive could be inferred.
`
`I.
`
`Introduction
`
`In yet another attempt to misappropriate Lutron’s intellectual property rights, the would-
`
`be recidivist infringing Opposer has filed the present Notice of Opposition alleging Lutron
`
`committed fraud during the prosecution of the present application directed to the product
`
`configuration of Lutron’s “Diva” electric light dimmer and fan speed control. While
`
`DM2\4l 28843.1
`
`

`
`unfortunate, it is not surprising, since Opposer has a history of disregarding Lutron’s Valid
`
`intellectual property rights. Opposer is a competitor to Lutron and sells competing electric light
`
`dimmers, including some that have infringed Lutron’s patents. Opposer’s blatant disregard for
`
`Lutron’s rights has caused Lutron to actively defend its rights including (1) filing a patent
`
`infringement action in May 2011 in the U.S. District Court for the Central District of California
`
`against Opposer, (2) filing a complaint with the International Trade Commission in May 2011 to
`
`prevent Opposer from importing infringing products, and (3) defending itself from a baseless
`
`request for reexamination filed by Opposer in August 2011 against one of Lutron’s patents for
`
`which the USPTO eventually affirmed the patentability of the claims without amendment.
`
`Continuing this pattern of abuse, Opposer’s claims of fraud in this proceeding are
`
`illusory. In order to “create” a purported claim of fraud, Opposer has arbitrarily selected
`
`functional features from the claims of Lutron’s US. Patent No. 5,637,930, e.g., a relatively large
`
`actuator and small dimmer actuator, and has asserted that these functional features comprise the
`
`totality of Lutron’s Mark. Based on this false premise, Opposer alleges that Lutron’s supposed
`
`failure to provide documents from the prosecution of the ‘930 Patent discussing these functional
`
`features (including declarations from 18 years ago) in the present application represents an
`
`attempt by Lutron to intentionally mislead the USPTO. However, Lutron’s Mark is comprised
`
`only of ornamental features, and the drawing of record clearly shows these ornamental features.
`
`These ornamental features -- the relevant substance of the applied for Mark -— are not even
`
`mentioned in Opposer’s allegations of fraud. The information that Opposer claims was allegedly
`
`withheld from the USPTO is simply not material when Lutron’s actual Mark is considered.
`
`Because Opposer created a fictional mark for the purpose of generating a fraud claim and does
`
`not even consider Lutron’s actual Mark, its allegations of fraud do not meet the pleading
`
`DM2\4l28843.l
`
`

`
`requirements of Rule 9(b), and thus Opposer has failed to state a claim upon which relief can be
`
`granted.
`
`Further, the ornamental features of the design for which registration is being sought were
`
`not even shown or described in the '930 Patent. Rather, several very different looking designs
`
`are shown. Thus, the '930 Patent demonstrates a variety of other equally efficient designs that do
`
`not include the ornamental features of the present mark, and there is no competitive advantage to
`
`the particular combination of features of the design mark that would render the mark functional.
`
`Although the '93O Patent covers many switch-dimmer combinations that perform the same
`
`function as the “Diva” electric light dimmer and fan speed control, the ‘930 Patent neither shows
`
`nor describes the ornamental features of the design for which registration is sought.
`
`In addition, Opposer’s allegations of deceptive intent are based solely on “information
`
`and belief’ without any factual support. Specifically, Opposer alleges on “information and
`
`belief” that Lutron’s filing of the present application is unfair and improper because Lutron also
`
`owns patents directed to the same product. Such speculative allegations are without legal or
`
`factual support and do not meet Rule 9(b)‘s requirements and, thus, provide an independent basis
`
`for dismissing the Notice of Opposition regarding its fraud allegations.
`
`II.
`
`Background
`
`On July 28, 1988, Lutron filed a utility patent application directed to functional features
`
`of a dimmer switch, titled “Wall—Mountable Switch & Dimmer” which eventually issued
`
`(through two continuation applications) as U.S. Pat. No. 5,637,930 (‘930 Patentl) on June 10,
`
`1997.
`
`1 Ex. B to NOO.
`
`DM2\4l28843.l
`
`

`
`In May 1992, Lutron introduced the “Diva” electric light dimmer and fan speed control
`
`(“DIVA dimmer”). The DIVA dimmer was an instant success in the marketplace. Since its
`
`introduction to the present date, the DIVA dimmer has generated over $450 million in wholesale
`
`sales to Lutron.
`
`On March 31, 1992, Lutron filed a design patent application directed to some of the
`
`ornamental design features of the DIVA Dimmer titled “Combined Bezel and Actuator For
`
`Dimmer Switch” which issued as Des. 364,141 (‘ 141 Design Patentz) on November 14, 1995.
`
`On March 31, 1992, Lutron filed a utility patent application directed to functional
`
`features of the switch actuator (without a dimmer) which was eventually incorporated into the
`
`switching portion of the DIVA control, titled “Snap-Action Switch Actuator” which issued as
`
`U.S. Pat No. 5,207,317 (‘317 Patent3) on May 4, 1993.
`
`On Mar 31, 1993, Lutron filed a utility patent application directed to functional features
`
`of the DIVA dimmer, titled “Electrical Switch and Dimmer Control Device” which issued as
`
`U.S. Pat. No. 6,005,308 (‘308 Patent4) on December 21, 1999. The ‘308 Patent is a continuation
`
`in part of the ‘3 17 Patent.
`
`In 1995, during the prosecution of the ‘930 Patent, Lutron submitted the declaration of
`
`Dr. Peter Lucas dated August 30, 1995, discussing functional features of the claimed invention
`
`including the “switching” actuator being substantially larger (and therefore more accessible to
`
`the user) than the “dimming” actuator (“Lucas Declaration”5). Lutron also submitted the
`
`Ex. A to Opposer’s Notice of Opposition (NOO), (Jacoby Declaration Ex. C-1)
`
`3 Ex. A to NOO; (Jacoby Declaration Ex. C-2)
`
`4 Ex A to NOO (Jacoby Declaration Ex. C-3)
`
`5 Ex. D to NOO.
`
`DM2\4l28843.l
`
`

`
`declaration of Dr. Woodie C. Flowers dated May 10, 1995, discussing the functional features of
`
`the claimed invention and the differences over the prior art (“Flowers Declaration”6).
`
`On April 8, 2003 and August 3, 2004, reexamination requests for Re—examinati0n Nos.
`
`90/006,594 and 90/007,153, respectively, were filed directed to the ‘930 Patent. The
`
`reexamination proceedings were consolidated and the Reexamination Certificate for the ‘930
`
`Patent issued on September 13, 2006.
`
`On April 19, 2011, Lutron filed the present Application Ser. No. 85/298,600 for a product
`
`configuration for the DIVA dimmer. On June 4, 2012, during the prosecution of the present
`
`application, Lutron submitted the declaration of Elliot Jacoby dated May 29, 2012, directed to
`
`the ornamental features of the product configuration and identifying the ‘l41 Design Patent,
`
`‘3 17, ‘308, and ‘930 Patents in response to the examining attorneys rejection of the product
`
`configuration as functional (“Jacoby Declaration”7).
`
`III. Previous Litigation Between the Parties
`
`On May 16, 2011, Lutron filed a complaint with the International Trade Commission
`
`(ITC Investigation No. 337—TA—776) against Opposer and other manufacturers for infringement
`
`of the ‘930 Patent. Opposer subsequently agreed to a Consent Order where it agreed to cease
`
`selling for importation, importing into the United States, offering for sale, or selling in the United
`
`States after importation, any products which infringe any of the asserted claims of the ‘930 .
`
`Patent (“ITC Action”).
`
`On May 16, 2011, Lutron filed a companion civil action in the United States District
`
`Court for the Central District of California on May 16, 2011 (1 1 -cV-00748-JST) against Opposer
`
`6 Ex. F to NOO.
`
`7 Ex. A to NOO.
`
`DM2\4l288/13.1
`
`

`
`and other manufacturers for infringement of the ‘93O Patent (“Civil Action”). The infringing
`
`product sold by the Opposer also copied the ornamental features of Applicant’s Mark. On
`
`August 10, 2011, during the pendency of the civil action, Opposer filed a request for
`
`reexamination of the ‘930 Patent. During reexamination, Lutron submitted an Office Action
`
`response dated April 10, 2012, which discussed the functional features of a large switch actuator
`
`and a small dimmer actuator (“Reexam Response”8.) On August 21, 2012, the USPTO affirmed
`
`thepatentability of the claims of the ‘930 Patent without amendment. On December 5, 2012,
`
`Opposer settled the Civil Action with Lutron under confidential terms.
`
`IV.
`
`Legal Principles
`
`A.
`
`Failure to State a Claim
`
`The defense of failure to state a claim upon which relief can be granted can be raised by
`
`means of a motion to dismiss prior to answering a notice of opposition. TBMP § 503.01 (citing
`
`Fed. R. Civ. P. 12 (b); Hollowform Inc. v Delma/leh, 180 USPQ 284, 285 (TTAB 1973), afl’d
`
`515 F.2d 1174, 185 U.S.P.Q. 790 (CCPA 1975). “The filing ofa motion to dismiss for failure to
`
`state a claim upon which relief can be granted tolls the time for filing an answer.” Id.
`
`B.
`
`Fraud Must be Pleaded with Particularity
`
`In opposing the registration of a mark on the ground of fraud, a petitioner must allege the
`
`elements of fraud with particularity in accordance with Fed. R. Civ. P. 9(b), made applicable to
`
`Board proceedings by Trademark Rule 2.116(a). Under Rule 9(b), together with Fed. R. Civ. P.
`
`11 and USPTO Rule 11.18, the pleadings must contain explicit rather than implied expression of
`
`the circumstances constituting fraud.” King Automotive, Inc. v. Speedy Mufiler King, Inc., 667
`
`F.2d 1008, 212 USPQ 801, 803 (CCPA 1981).
`
`8 Ex. C to NOO.
`
`DM2\4128843.l
`
`

`
`To satisfy Rule 9(b), any allegations based on information and belief must be
`
`accompanied by a statement of facts upon which the belief is founded. Asian and Western
`
`Classics B. V, v. Selkow, 92 U.S.P.Q. 2d 1478 (T.T.A.B. 2009)(granting motion to dismiss fraud
`
`claim).
`
`Although Rule 9(b) allows that intent may be alleged generally, the pleadings must allege
`
`sufficient underlying facts from which a court may reasonably infer that a party acted with the
`
`requisite intent and state of mind.
`
`Ia’.
`
`C.
`
`Functionality of Trade Dress
`
`A particular arbitrary combination of functional figures, the combination of which is not
`
`itself functional properly enjoys protection. Sunbeam Prods., Inc. v. W. Bend C0., 39 U.S.P.Q.
`
`2d 1545, 1550 (S.D. Miss. 1996), afl’d, 123 F.3d 246 (5th Cir. 1997). Even if certain features
`
`found in a product design are functional and common to other similar products, it does not
`
`necessarily follow that the overlapping appearance of the claimed design configuration is
`
`functional. In re Hershey Chocolate and Confectionary Corporation, Serial No. 77809223,
`
`(T.T.A.B. June 28, 2012)(non precedential).
`
`“A collection of functional features in a product design does not necessarily make the
`
`collection of those features functional and therefore unprotectable.” Pebble Beach Co. v. Tour
`
`18 ILtd., 155 F.3d 526, 538 (5th Cir. 1998). “The appropriate inquiry is not whether each
`
`individual feature of the trade dress is functional but whether the whole combination of features,
`
`taken together, is functional.” Hartford House, Ltd. V. Hallmark Cards, Inc. 846 F.2d 1268,
`
`1272 00”‘ Cir. 1988).
`
`DM2\4l28843.l
`
`

`
`D.
`
`Trade Dress Rights and Utility Patent Rights Are Not Mutually Exclusive
`
`Trade dress rights and utility patent rights in the same product are not mutually exclusive
`
`and, thus, existence of a patent does not prevent the patent owner from seeking trade dress
`
`protections for ornamental aspect of features found in a patent claim. Trafix Devices, Inc. Mktg.
`
`Displays, Inc. 532 U.S. 23,29 (200l)(“ln a case where a manufacturer seeks to protect arbitrary,
`
`incidental or ornamental aspects of features of a product found in patent claims, such as arbitrary
`
`curves in the legs or an ornamental pattern painted on the springs, a different result might obtain.
`
`There the manufacturer could perhaps prove that those aspects do not serve a purpose within the
`
`terms of a utility patent”)
`
`V.
`
`Argument
`
`Opposer’s fraud allegations fail as a matter of law for several reasons. First, Opposer’s
`
`allegations of fraud are not directed to the Mark. Second, Opposer’s dissection of a mark into
`
`individual components and assessing the functionality of individual components is contrary to
`well established precedent for evaluating the overall appearance of the claimed trade dress.
`
`Third, Opposer fails to specifically identify how the allegedly false statements and allegedly
`
`withheld information are material to the registrability of the Mark. Finally, Opposer’s allegation
`
`of Lutron’s intent to deceive relies solely “upon information and belief” and is not accompanied
`
`by a statement of facts upon which the belief is founded.
`
`A.
`
`Opposer’s Allegations of Fraud Are Not Directed to the Applied for Mark
`
`Opposer’s assertion of fraud is based on a faulty premise --that is, the misconception that
`
`Lutron’s Mark consists of any switch and dimmer configuration that has a relatively big on/off
`
`actuator as compared to a relatively small dimmer actuator. Specifically, the Opposer has
`
`asserted that the fraud allegations are based on the failure to disclose the following information:
`
`DM2\4l28843.l
`
`

`
`(1)
`
`Statements from the Reexam Response where Lutron stated “the switch
`
`function actuator area is substantially larger than that of the dimmer function
`
`actuator and dominates dimmer function actuator by emphasizing the switch
`
`function visually and physically,” and “the switch and dimmer actuator areas,
`
`though separate, are spaced immediately adjacent to each other and both occupy
`
`a common region that services as an active control zone for the device.” NOO at
`
`1] 22.
`
`(2)
`
`The Lucas Declaration (made 18 years before the filing of the present
`
`trademark application) regarding the information content required to perform the
`
`two control actions of an actuator and separate dimmer control as compared to
`
`other designs available in 1995. N00 at 127.
`
`(3)
`
`The Flowers Declaration extolling “the utilitarian benefits of the ‘930
`
`Patent’s invention combination of a large switch with a small dimmer.” NOO at
`
`1l38.
`
`Thus, it is clear that Opposer has defined Lutron’s Mark to constitute any switch and
`
`dimmer configuration that has a relatively large on/off actuator as compared to a relatively small
`
`dimmer actuator. However, the general concept of a relatively large on/off actuator as compared
`
`to a relatively small dimmer actuator is not the applied-for Mark. Rather, during prosecution of
`
`the present application, Lutron made it clear that functional features claimed in the ‘3 l 7, ‘308
`
`and ‘93O Patents were not part of its trade dress and that the trade dress shown in the drawing of
`
`record of the instant application is the totality of the specific ornamental features of the design as
`
`presented in the drawing.9 Thus, Opposer’s arbitrary identification of general functional features
`
`9 A. to NOO at 1114.
`
`DM2\4l28843.l
`
`

`
`rather than the ornamental combination of specific features of the Mark does not satisfy the
`
`Opposer’s obligation to particularly allege the elements of its fraud claim.
`
`B.
`
`Opposer’s Dissection of the Mark into Individual Components and
`Assessment of the Alleged Functionality of Individual Components is
`Improper.
`
`However, even if Applicant’s trade dress broadly encompassed the relatively large on/off
`
`actuator as compared to a relatively small dimmer actuator, it is improper for the Opposer to
`
`dissect the mark into individual components and only consider the functionality of the individual
`
`components.
`
`It is well established that the appropriate inquiry is not whether each individual
`
`feature of the trade dress is functional but whether the whole combination of features, taken
`
`together, is functional. Hartford House at 1272. Opposer’s fraud allegations, based solely on
`
`allegedly functional features viewed individually, misapply the test for evaluating whether a
`
`trade dress is protectable. Thus, Opposer has failed to state the elements of its fraud claim with
`
`particularity.
`
`C.
`
`Third, Opposer Fails to Provide Factual Support for its Allegations That the
`Purportedly False Statements or Information Purportedly Withheld is
`Material to the Mark
`
`Opposer’s instances of alleged fraud are all based on Opposer’s improper definition of
`
`the Mark, and, thus the allegedly withheld material or false statements are not material to the
`
`registrability of Lutron’s actual Mark. For example, Opposer’s first instance of alleged fraud is
`
`based on Opposer’s allegations that the Jacoby Declaration is inconsistent with the Reexam
`
`Response submitted during the reexamination of the ‘930 Patent. However, as the Opposer
`
`admits, the Jacoby Declaration identified the ‘93O Patent to the examiner and informed the
`
`examiner that the functional features claimed in the ‘930 Patent are not part of the trademark for
`
`which registration is sought. The Opposer has failed to identify how statements made during the
`
`DM2\4l28843.l
`
`-10-
`
`

`
`reexamination of the ‘93O Patent which is directed solely to functional features and not the
`
`specific appearance of the Mark is relevant to the actual Mark which does not include functional
`
`features.
`
`Likewise, Opposer’s second instance of alleged fraud directed to allegedly withheld
`
`material or false statements also is not material to the registrability of Lutron’s actual Mark.
`
`Here, Opposer asserts that the alternate designs of other dimmers available today discussed in the
`
`Jacoby Declaration are inconsistent with Lucas Declaration’s functional description of the
`
`invention claimed in the ‘930 Patent. The Lucas Declaration describes the benefits of separating
`the on/off actuator from the dimming actuator. The Jacoby Declaration provided examples of
`
`alternate designs of dimmers having separate on/off actuators and dimming actuators available
`
`today. Opposer fails to allege how the benefits described in the Lucas Declaration, which are
`
`equally applicable to the Mark as well as the competitors alternate designs, is material to the
`
`registrability of the Mark
`
`Opposer’s third instance of alleged fraud also is directed to allegedly withheld material or
`
`false statements that are not material to the registrability of Lutron’s actual Mark. Here Opposer
`
`asserts that the Lucas Declaration and the Flowers Declaration discuss the functional aspects of
`
`the ‘930 patent directed to a relatively large on/off actuator as compared to a relatively small
`
`dimmer actuator. However, because the relatively large on/off actuator as compared to a
`
`relatively small dimmer actuator are not the ornamental features of the Mark, Opposer fails to
`
`identify how a functional description of a general concept from almost 18 years ago is material to
`
`the registrability of the Mark with the specific design shown in the drawing of record.
`
`DM2\4l28843.l
`
`-11-
`
`

`
`D.
`
`Opposer Failed to Allege Sufficient Underlying Facts From Which a Court
`May Reasonably Infer That a Party Acted With the Requisite Intent
`
`Opposer’s allegation of intent are all based solely on “information and belief’:
`
`Upon information and belief, the Design has enjoyed great commercial
`48.
`success owing to its utilitarian features, and Applicant has actively sued alleged
`infringers of its patent rights to exclude competitors form the marketplace. Upon
`information and belief, Applicant filed the Application (on April 19, 2011) in
`anticipation of the expiration of the ‘930 patent on June 10, 2014, in order to
`unfairly extend the monopoly of the ‘930 patent through trademark law, to
`continue to exclude opposer and other competitors from practicing the Design of
`the ‘930 patent after it enters the public domain, and to maintain its revenue
`stream associated with the exclusive right to the Design. Upon information and
`belief, the foregoing interests evidence Applicant’s intent to deceive the USPTO
`by presenting false statements of material fact in the Jacoby Declaration, and
`withholding material information in the Flowers and Lucas Declarations and the
`response to Reexam Office Action. NOO at ‘H48.
`
`However, any allegations based on information and belief must be accompanied by a
`
`statement of facts upon which the belief is founded. Asian and Western Classics at 1478.
`
`Opposer has utterly failed to provide a statement of facts upon which its asserted belief is
`
`founded. To the contrary, utility patent rights and trade dress rights are not mutually exclusive
`
`and thus existence of a patent does not prevent the patent owner from seeking trade dress
`
`protections for ornamental aspect of features found in a patent claim:
`
`In a case where a manufacturer seeks to protect arbitrary, incidental or ornamental
`aspects of features of a product found in patent claims, such as arbitrary curves in
`the legs or an ornamental pattern painted on the springs, a different result might
`obtain. There the manufacturer could perhaps prove that those aspects do not
`serve a purpose within the terms of a utility patent.
`
`Trafix Devices, Inc. Mktg. Displays, Inc. 532 U.S. 23,29 (2001).
`
`Thus, there is nothing improper or unfair regarding Lutron’s application for trade dress
`
`protection for ornamental features in conjunction with its patent protection of functional features,
`
`and there is no basis to infer, from the facts alleged in the Notice of Opposition, any intent and
`
`DM2\4l28843.l
`
`-12-
`
`

`
`state of mind of Lutron to deceive the PTO in connection with the instant application. The
`
`simple fact is that Lutron is seeking trade dress protection for its product embodying a specific
`
`trade dress, where the product has been commercially successful and subject to patent protection.
`
`These facts demonstrate lawful and reasonable actions of an owner exercising its legal rights for
`
`the full protection of its intellectual property. Thus, Opposer has failed to plead the required
`
`element of intent with particularity required by Rule 9(b), which is an independent basis for
`
`dismissing Opposer’s counterclaim of fraud.
`
`VI.
`
`Conclusion
`
`For the foregoing reasons, it is respectfully requested that the Opposer’s Notice of
`
`Opposition is dismissed for failure to state a claim for which relief can be granted on alleged
`
`claims of fraud.
`
`Respectfully Submitted
`
`/Nicole K. McLaughlin/
`Nicole K. McLaughlin
`DUANE MORRIS LLP
`30 S. 17TH Street, Floor 5
`Philadelphia, PA 19103-4196
`Telephone: (215) 979-1151
`Facsimile: (215) 979-
`NKMCLaughlin@,duanerno1ris.com
`
`Patrick D. McPherson
`
`DUANE MORRIS LLP »
`505 9”‘ Street, NW, Suite 1000
`Washington DC 20004
`Telephone: 202-776-5214
`Facsimile: 202-478-0826
`
`pdmcpherson@duanemorris.com
`
`Attorneys for Applicant
`
`Date: February 25, 2013
`
`DM2\4l28843 .1
`
`-13-
`
`

`
`CERTIFICATE OF ELECTRONIC FILING
`
`I hereby certify that Applicant’s Motion to Dismiss and Brief in Support thereof is being
`
`filed with the Trademark Trial and Appeal Board, Commissioner for Trademarks, P.O. Box
`
`1451, Alexandria, Virginia, 22313-1451, by using the ESTTA electronic filing system, this 25th
`
`day of February, 2013.
`
`/Josh Staples/
`Josh Staples
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the forgoing Motion to Dismiss and Brief in Support thereof has
`
`been served on Opposer’s Attorney of record, Mark D. Giarratana, McCarter & English LLP,
`
`CityP1ace I, 185 Asylum Street, Hartford, Connecticut 06103-3495, Via first class mail, postage
`
`pre—paid, this 25th day of February, 2013.
`
`/Josh Staples/
`Josh Staples
`
`DM2\4l28843.l