Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA772456
`09/22/2016
`
`ESTTA Tracking number:
`
`Filing date:
`
`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
`91209107
`
`Plaintiff
`Guess? IP Holder L.P.
`
`GARY J NELSON
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`PO BOX 29001
`GLENDALE, CA 91209-9001
`UNITED STATES
`pto@lrrc.com, gnelson@lrrc.com, ctoomey@lrrc.com, wbleeker@lrrc.com,
`lbolter@lrrc.com
`Testimony For Plaintiff
`
`Drew Wilson
`
`dwilson@lrrc.com, pto@lrrc.com, gnelson@lrrc.com, ctoomey@lrrc.com,
`wbleeker@lrrc.com, lbolter@lrrc.com
`
`/Drew Wilson/
`
`09/22/2016
`
`TheresaMcManus-Becerril public exhibits 81-005_Part41.pdf(5056119 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part42.pdf(5208196 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part43.pdf(5142942 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part44.pdf(5083569 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part45.pdf(4894564 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part46.pdf(5088724 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part47.pdf(4774779 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part48.pdf(5077829 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part49.pdf(5072179 bytes )
`TheresaMcManus-Becerril public exhibits 81-005_Part50.pdf(4846682 bytes )
`
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`by dermatologists to be the gold standard for skin lightening, de(cid:173)
`spite its controversial reputation (it can be irritating, and studies
`have shown that extreme doses may have contributed to cancer in
`rodents; sales are restricted in parts of Europe and Asia). Melasma
`responds well to hydroquinone; sun spots do not. "All of the hydro(cid:173)
`quinone in the world isn't going to get rid of a sun spot," Downie
`says. "It's in a much deeper level of the skin." She dispenses an Rx
`hydroquinone cream with the satisfying name Sledgehammer to
`her melasma patients, and for those with brown spots caused by
`UV damage, she rolls out the lasers.
`Manhattan- and Miami-based derm Fredric Brandt, MD, who
`prescribes an aggressive regimen of Retin-A and hydroquinone for
`melasma, says, "Hyperpigmentation that's hormonally induced is
`the most difficult to treat because no matter what you do, it has
`a memory and always seems to return with the slightest amount
`of sun exposure. Using a retinoid will distribute the melanosomes
`more evenly through the skin so the pigmentation is evened out.
`It also exfoliates so that bleaching creams will better penetrate."
`While lasers typically shouldn't be used on melasma-with the
`exception of Fraxel, which can be used on a relatively gentle
`low-energy setting; many devices can actually cause a backfire
`effect and make the area darker, especially in patients prone to
`PIH-they're an ace in the hole for those deep UV spots. "Q
`switched lasers are great because they have a short pulse-width,"
`says Brandt. "They're attracted to the brown pigmentation, and
`they kind of explode it." A scab forms over the spot, and it flakes
`off within a week-leaving an even-toned complexion in its wake.
`Those who want to take a less high-tech approach have their
`pick of products containing proven botanical-based skin brighten(cid:173)
`ers-tyrosinase-inhibiting vitamin C, kojic acid, licorice extract,
`mulberry, and arbutin-as well as fellow skin-care stalwarts az(cid:173)
`elaic acid, glucosamine, and niacinamide. While effective, these
`ingredients come with a caveat: They take time-often several
`months-to work. And, because they primarily affect only the
`topmost layers of the skin, they deliver best results on the more
`superficial types of brown spots, such as PIH. Combining over(cid:173)
`the-counter topicals with exfoliating treatments, such as regular
`glycolic peels, which strip away layers of excess pigment, can
`enhance their effects.
`At Pola, researchers have been "looking beyond tyrosinase for
`different ways to interfere witl1 brown-spot production," Suzuki .
`says. They've found that marjoram extract cancels out the effects
`of a melanocyte-activating hormone, and that a flavonoid derived
`from the yarrow plant can stop pigment from being transferred
`outside the melanocyte. "Melanocytes have arms, called den (cid:173)
`drites, that reach into keratinocytes, the skin cells of the epider(cid:173)
`mis, and deliver pigment," says Suzuki. The yarrow extract causes
`these arms to retract, effectively encouraging the melanocytes to
`keep their hands to themselves so that they can't make the deliv(cid:173)
`ery. Clinical trials of H20's Total Source Night Cream-the first
`product to contain the extract-showed that after one month of
`use, 75 percent of users had an improvement in brightness, and
`the amount of melanin in skin cells decreased by 30 percent.
`
`BRIGHT FUTURE
`To keep skin even-toned and brown-spot-free, the number-one
`weapon-and this should come as no surprise-is daily broad(cid:173)
`spectrum sunscreen (SPF 30 or more). "Everybody-African(cid:173)
`American, Asian, Latino, or Caucasian-will age to varying
`degrees with uneven pigmentation," Downie says. "I have every(cid:173)
`one from society ladies to guys who ride around on Harleys com(cid:173)
`ing in for Fraxel to treat sun damage, and they all could have done
`the same easy thing to prevent it, which was reach for sunscreen."
`This rule applies to all types of hyperpigmentation, as all are
`exacerbated by sun exposure, even PIH. "Think of it this way,"
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`lt'hile al!m wmiJuling pigmenlulio11 problt>ms.
`
`she says. "If you have a zit and you walk out the door without
`sunblock on, you're getting darker, and so is your pimple. You're
`essentially tanning your pimple."
`Brandt recommends gentle weekly exfoliation, daily use of
`products containing anti-inflammatory ingredients such as
`green tea, and, at the first detection of any uneven tone, regu(cid:173)
`lar application of brightening creams. "Brightening products re(cid:173)
`ally only affect the areas that have too much pigment, so you can
`apply them preventively all over, and it's best to use them before
`you begin to see big brown spots," he says. "When you get to the
`point that you see pigmentation on the skin, you probably also
`have areas of microscopic pigmentation that haven't reached the
`point of critical mass, when they become visible to the naked eye.
`0
`So you might as well wipe those away at the same time."
`
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`face that their brains, too, aren't as supershiny as they once were.
`The fact of our collective aging, and the huge possible profits of
`interventions to slow or even reverse age-related forgetfulness,
`has researchers on the fast track to find a cure for the dreaded
`Alzheimer's and its companion scourge, MCI {mild cognitive im(cid:173)
`pairment), a condition that frequently develops into Alzheimer's.
`Memory research, however, is about much more than Alzheim(cid:173)
`er's. Scientists are peering deep into our mental machinery, us(cid:173)
`ing fMRis and the brains of fruit rues to gain a better grasp on
`both how we remember and how we forget. The goal is to concoct
`some sort of drug for trauma survivors, a capsule able to eradicate
`not only horror but also addiction, which is at least in part a series
`of memorized, ingrained behaviors. Thus, memory research in
`2012 reflects our own contradictory needs. We are a society terri(cid:173)
`fied oflosing our pasts, while, at the same time, we seek the means
`to wipe our slates clean-if not the whole blackboard, then at least
`those nightmare scrawlings: the twin towers falling, the rape in the
`rain. This, by the way, hasn't happened yet. It's just a dream, an
`ambition. It's also a tall order, and while scientists haven't man(cid:173)
`aged to work all the magic we wish for, they have come up with
`some pretty amazing discoveries that offer hope both for those
`who live in fear of forgetting and for those whose negative memo(cid:173)
`ries will not dissolve, the Recall button seemingly stuck, the pres(cid:173)
`ent blocked by a burning past the per on cannot step over.
`Alain Brunet, PhD is an associate professor of psychiatry at Mc(cid:173)
`Gill University; in 2004 he had a hunch that a common drug might
`be repurposed into a mental eraser for PTSD sufferers. It was the
`beta-blocker propranolol, used for those with high blood pressure
`or performance anxiety. The drug works by blocking the action
`of the bram chemical norepineph1ine, involved in the creation
`of strong emotions. Brunet understood that traumatic memories
`
`St
`
`range things were happening to me. When friends came
`to visit, I'd say, "Let me show you around," and the odd
`way they looked at me suggested I'd already given them the
`grand tour of my new home months, weeks, maybe just days
`ago. As for the new home, it felt like a maze to me, all crooked
`corridors and dark doors, a floor plan I couldn't seem to memo(cid:173)
`rize even after we'd been here for six whole months, long enougq
`to learn the layout of a 2,000-square-foot bungalow with four
`bedrooms and two bathrooms ugly enough to want to forget.
`"Let's redo those bathrooms," I'd say to my husband, and then
`I'd launch into my design ideas and he'd ho hum, having heard it
`all before-but when? When had I described to him the red glass
`tile and the huge copper showerhead, the sink .made of petri(cid:173)
`fied wood sitting atop a handsome mahogany vanity? My mind,
`it seemed, was going the way of the wood I coveted-gnarled
`and pitted, washed out by weather; it felt as if there were ragged
`holes in my brain through which facts and fictions both were
`falling fast. The worst was when sentences started appearing in
`my work that I swore were mine but, upon closer inspection,
`turned out to be written by others, authors I had no memory of
`ever reading-and yet, I must have. For instance, "The Snow
`Man," by Wallace Stevens, because what else could explain that
`in 1921 he wrote "the spruces rough in the distant glitter," and
`that the exact same line appeared in 2012 in my own manuscript
`trotting its way toward publication, the author-me-blissfully
`oblivious of the theft, if you can even call it that, given that I had
`no awareness of it.
`In our rapidly aging society {almost a quarter of Americans
`will be older than 60 by 2020), memory is more than a hot topic
`of conversation. While I may be showing some form of early cog(cid:173)
`nitive decline, it won't be long before my contemporaries have to
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`retain their power because every time we recall the event we re(cid:173)
`activate our fear circuitry-the clammy hands, the fast heartbeat,
`the high startle response. What would happen, he wondered, if
`we could suppress the adrenaline surge? In a 2008 study, Brunet
`asked 19 anxious patients to recount, in writing, the experience
`that plagued them, then gave nine propranolol, the rest a placebo.
`A week later, the subjects returned to his lab and listened to a
`tape of their story. The beta-blocker takers-but not the control
`group-showed a reduced stress response.
`Brunet's study was short-just a week long-but still, he had
`reason to think that he was onto something. He'd used proprano(cid:173)
`lol to treat a Montreal man who'd been traumatized when two
`robbers held up his pet-food store. Six times, the man took the
`drug, then recounted his ordeal. At the last session, he reported
`he could recall the crime, but he displayed no physiological
`symptoms of fear and reported that it felt like "there's been wa(cid:173)
`ter poured on the fire." Two years later, the memory remained
`drained of its toxic juice.
`While propranolol isn't a "forgetting pill"-it doesn't destroy
`memory but alters its emotional overtones-it's a big advance,
`providing the platform for what comes next Several years down
`the road, in 2012, in a lab in Brooklyn, neuroscientist Todd Sack(cid:173)
`tor, MD, is studying the tiniest particles of chemical compounds
`associated with remembering and forgetting. Sacktor's father was a
`
`some unease as the subjects' memories deteriorated, the whole
`endeavor made more uncomfortable by the fact that the study
`participants had no clue their deeply felt stories were morphing.
`By August 2002, 37 percent of the details in the recollections had
`changed; by 2004, nearly 50 percent The deviations ranged from
`simple tweaks to wholesale revisions, and even in these extreme
`cases, the subjects thought themselves and their memories as con(cid:173)
`stant as the sun and moon. Phelps and Hirst believe that the act of
`repeating a nan·ative somehow contaminates it. And that has, in
`fact, become a central concept in memory research, which means
`that nowhere in our brain do any permanent, unmarred memories
`reside, no matter how much it may feel that way. If you recall, let's
`say, your bat mitzvah on a day when you're feeling hungry, your
`memory will likely focus more on the sweet sandwiches served
`and less on your haftarah portion, and that shift in mental weight
`alters the network of neurons in which the memory was encoded,
`and each subsequent recollection does the same. It's almost sad to
`learn this, to relinquish the idea that there are neural nooks where
`pieces of our past are stored, like a safe-deposit box to which we
`alone have the key.
`Yet even as forgetting is fundamental to the human brain,
`PTSD is becoming perhaps the mental disease of our time, which
`could mean our world is worse, although that seems unlikely. Or
`perhaps people are simply more likely now-in a culture that has
`
`Certain beta-blockers can drain traumatic memories
`of their toxic juice, leaving more neutral narratives that don't
`kick the fear center of the brain into overdrive.
`
`biochemist who suggested to his son that a molecule called protein
`kinase C just might have a core part to play in memory storage.
`Sacktor listened to his dad and eventually discovered PKMzeta,
`a form of protein kinase C, taking three years just to purify and
`isolate it.
`Many people assume that memory works something like a
`camcorder, inscribing events onto the rumpled mass of our brain,
`where they either flare or fade, depending upon their importance.
`This idea goes as far back as Plato, who analogized memory tq
`an impression in a wax tablet. This metaphor wended its way
`through the ages, tweaked and amplified as our understanding
`shifted, but remaining, at heart, a stable image giving way to an
`enduring set of beliefs about how and why we recall. In the 1970s,
`memory researcher Elizabeth Loftus, PhD, was among the first
`to dismantle the camcorder/wax-stamp notion, proving that. eye(cid:173)
`witness accounts were wildly unreliable and subject to suggest(cid:173)
`ibility. In one groundbreaking experiment, Loftus showed it was
`possible to get people to create memories of something that had
`never happened by proposing to them that they'd gotten lost in a
`mall; she later listened to her unwitting subjects confidently detail
`the discombobulating incident.
`More recently, New York psychology professors William Hirst,
`PhD, and Elizabeth Phelps, PhD, conducted a study of flashbulb
`memories: intense recollections associated with extreme events(cid:173)
`the assassination of john F. Kennedy, the explosion of the Chal(cid:173)
`lenger space shuttle. On September 11, 2001, almost every Ameri(cid:173)
`can citizen absorbed a flashbulb memory of two towers falling
`or of a low-flying plane against a brilliant blue sky or of columns
`of smoke and ash. It was a tragedy that also provided an un(cid:173)
`precedented opportunity to ascertain how immutable flashbulb
`memories really are.
`Phelps and Hirst surveyed several hundred people about their
`September 11 recollections over a series of years, watching with
`
`embraced therapy and psychotropic medicines-to report the
`ways in which their minds torture them.
`And so we return to Sacktor in his Brooklyn lab and his years(cid:173)
`long inquiries into his father's molecule. When we recall an
`event, it's because a series of linked neurons are firing, speaking
`to each other: the auditory area of the memory stored in neurons
`in the auditory areas of our brains, the olfactory portion in the
`olfactory portions, and so on. What Sacktor realized first was
`that PKMzeta was always there, lurking around, when memory(cid:173)
`making happened, but he didn't know whether he'd discovered a
`key chemical allowing us to retain recollections, or even if there
`were such a thing. So he and his colleagues devised an experi(cid:173)
`ment in which rats were trained to avoid places where mild elec(cid:173)
`trical shocks were delivered to their feet. Then they injected the
`animals with a drug called ZIP (zeta-interacting protein) that
`interferes with PKMzeta production, and proceeded to observe
`how the rats completely and thoroughly forgot to trot around the
`miniature minefields-ZIP some sort of Windex for the brain,
`soaking up the smears and streaks of recollections.
`Unlike propranolol, which left the traumatic memories intact
`even as it diluted their affective punch, ZIP completely "wiped
`out the hard drive," Sacktor says, deleting everything the rat had
`recently learned. Now he is trying to find protein-synthesis inhibi(cid:173)
`tors that can act more like X-Acto knives, selectively slicing out
`certain associations or images while leaving everything else intact
`
`A
`
`rodent is a far cry from a human being, or at least it ap(cid:173)
`pears that way. They are 170 to 350 times smaller than
`we are, whiskered and long toothed, their brains no big(cid:173)
`ger than our pinkie pads. But while we look a lot different
`from white Wistar lab rats, our D A is disturbingly similar.
`This me"ins there's a reasonable chance that a variant of ZIP
`could work in humans in some similar ways to how it has in
`
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`rats and that we, thanks to Sacktor, may have in our hands the
`first real pill designed for forgetting, to be used, to be used ...
`how? Eventually the specific science works its way down to this
`vast amorphous philosophical question of how we might em(cid:173)
`ploy something as powerful as ZIP, as well as the ethical impli(cid:173)
`cations of having it at our disposal. Conceivably, the drug could
`treat chronic pain, which is maintained by persistent strength(cid:173)
`ening of the synapses in the pain pathways in the spinal cord
`and brain. A medication similar to ZIP could ameliorate ad(cid:173)
`dictions, blotting out associations that "remind" the addict of
`his craving.
`And then there are the more nefarious potential uses-ZIP in
`the hands of governments determined to control their citizens in
`brash and sinister ways. But we need not even go that far to en(cid:173)
`counter potential problems. PTSD is devastating and can rob a
`person of years of productive living. But still, knowing that, would
`we actually want to scrub away experiences from the human
`brain? By completely removing even the most haunting occur(cid:173)
`rences, one is in a very real sense stripping a person of critical
`parts of his or her life story, and of the chance to make meaning
`of them, which is what humans strive for and what brings dignity
`to existence.
`Michael Mithoefer, MD, a psychiatrist and researcher in South
`Carolina, is currently running trials in which MDMA-better
`
`an electrode is implanted in the brain and emits continuous elec(cid:173)
`trical impulses to memory regions-on six patients with suspected
`Alzheimer's. Though the study was extremely small and designed
`primarily to assess safety, PET scans showed a sustained increase
`in glucose metabolism in the brain, significant because a decline
`accompanies Alzheimer's. "We don't have another treatment for
`Alzheimer's at present that shows such promising effects on brain
`function," says Smith, who in follow-up work plans to collect
`patient reports of memory loss. (Oddly, the idea of using DBS for
`memory disorders arose when scientists tried it on a hugely obese
`man, implanting an electrode in the region of the brain thought to
`be associated with appetite suppression. The man did not get any
`thinner, but his memory expanded substantially.)
`
`W
`
`e're not the first generation preoccupied with forgetting. In
`the sixteenth century,Jesuit missionary Matteo Ricci com(cid:173)
`posed Treatise on Mnemonic Arts, in which he explains the
`method of associating ideas with images and then locating
`those images in 'rooms," the result being a "memory pal(cid:173)
`ace" that promised preservation of what is in fact ethereal human
`experience, made not of mortar but of gossamer. The memory
`palace is still used, especially by so-called memory champions,
`who train themselves to recall huge amounts of mostly arbitrary
`information (a sequence of cards, for instance) to compete in con-
`
`An electrode implanted in the brain may be an Alzheimer's treatment,
`a possibility discovered when scientist s tried the method on a hugely
`obese man. H e didn't lose weight, but his memory expanded.
`
`known as ecstasy-is being used to help trauma survivors over(cid:173)
`come crippling PTSD. Unlike ZIP, MDMA doesn't stamp out the
`memory. The subjects take the drug, which infuses a person with
`fond feelings and an expansive sense of well-being, and, in this
`state, talk about the trauma; in a 2011 study, the symptoms abated
`in 10 out of 12 MDMA takers but only two of eight controls. So
`people don't lose chunks of their past but rather revise its emo(cid:173)
`tional overlay, which is similar to how propranolol works-and
`both drugs seem less ethically problematic than substances that
`would completely expunge memories.
`.
`If we may soon possess the ability to medicinally edit our histo(cid:173)
`ries, we also, simultaneously, may be able to do the opposite. While
`ZIP can nuke a memory, there's a good chance that PKMzeta can
`enhance il euroscientists are brainstorming ways to prompt cells
`to make more PKMzeta, the theory being that if the molecule is
`available to the brain in larger amounts, neuronal memory circuits
`might not decay. "It's just an idea, at this stage," Sacktor says, but
`one can hear the excitement in his voice-and in the field.
`So far there are very few treatments for Alzheimer's, a disease
`discovered in the early 1900s when Alois Alzheimer, a doctor
`working in a mental asylum in Germany, opened the brain of
`a recently deceased patient whose thought disorder had always
`eluded him. Slicing into her brain, Alzheimer found odd tangles of
`protein fibers and a sticky plaque called amyloid, the organ basi(cid:173)
`cally stuffed with a deadly jam that muffled memories. In the end,
`she'd been so incapacitated that she could not even swallow. The
`current drugs on the market for Alzheimer's only treat its symp(cid:173)
`toms, rather than block the mechanism for the disease, and at best
`slow the process of memory loss for six months to a year.
`Scientists are searching not only for drugs in Expedition Mem(cid:173)
`ory. Recently, Gwenn Smith, PhD, a professor in the department
`of psychiatry and behavioral sciences at johns Hopkins University
`School of Medicine, tried deep brain stimulation (DBS)-in which
`
`tests held around the world. These competitions are a fairly new
`phenomenon and may well reflect the growing unease we feel as
`events slip from our grip and atomize into the air.
`You may not need to train for memory smack-downs to help
`preserve your memory. Studies have shown that lesser efforts
`can make a difference, including the much-touted crossword
`puzzle. Recent research suggests that continuing to learn new
`skills-playing an instrument, speaking a foreign language(cid:173)
`into old age may be the best tonic for the misty mind . These
`new skills may help build new neural pathways in a brain that
`remains plastic until death. Learning also keeps us curious-it's
`not the other way around, I'd wager-and curious people are
`more likely to have strong social networks (after all, you want
`to share what you've learned), which also may help ward off
`age-related dementia.
`In the end, though-and of course there is an end, which
`we know only too well-we will succumb to the vagaries of
`aging, no matter how many tricks we have up our very slick
`sleeves. It is this fact that drives the field of memory research,
`into which huge amounts of funding have lately been poured
`by a society that knows what lies in wait. There may very well
`come a time when purified molecules are made into medicines
`that can corral your fast-fading past and problem-solving skills
`while, on the other side of the line, "editing" medicines can
`strike traumas from mind. When and if this actually happens,
`we, as Homo sapiens, tool-building creatures for thousands of
`years, will have added significantly to our armamentarium .
`The question is whether we'll have the wisdom and savvy to
`know how to use these tools well. Given that since the Indus(cid:173)
`trial Revolution at least, humankind has shown it has a very
`hard time being responsible with its own inventions, one might
`say the outlook looks grim, even while the science shines at its
`ｾ＠
`most exciting edge.
`
`Ell[ 470 www elle.com
`
`

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`DJ, musician, and model SolanQe
`Knowles hosts an ultra hip crowd
`in her briQht Brooklyn home.
`Julie Vadnal scores an invite
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`w .elle
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`d
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`BALANCING ACT
`{Clockwise fr
`left) Knowles
`sonjulez in h
`bedroom; ｉｯ｣｡ｾ＠
`art-fair finq
`hang above he
`sofa; "My pa
`s
`start off mellow,"
`says ｋｮｯｷＡｾ＠
`"then get lorul.
`
`'m going to sell you off to the Disney Channel and make a lot of.
`money off of you," Solange Knowles jokes to her seven-year-old
`son, Daniel "Julez" Smith