Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA653661
`ESTTA Tracking number:
`02/02/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91209226
`Defendant
`DISH Network L.L.C.
`IAN L SAFFER
`KILPATRICK TOWNSEND & STOCKTON LLP
`1400 WEWATTA STREET, SUITE 600
`DENVER, CO 80202
`UNITED STATES
`kbell@kilpatricktownsend.com, isaffer@kilpatricktownsend.com, denver-
`teas@kilpatricktownsend.com, kyates@kilpatricktownsend.com
`Opposition/Response to Motion
`Ian L. Saffer
`isaf-
`fer@kilpatricktownsend.com,kbell@kilpatricktownsend.com,kyates@kilpatrickto
`wnsend.com,denverteas@kilpatricktownsend.com
`/Ian L. Saffer/
`02/02/2015
`Applicant's Opposition to Motion to Amend.pdf(53033 bytes )
`Henderson Declaration.pdf(1033265 bytes )
`Bell Declaration.pdf(2195540 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
` Consolidated Opposition No. 91209226
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`In re Application Serial Nos. 85/468,715
` 85/468,629
` 85/976,854
` 85/976,855
` 85/976,856
` 85/976,972
` 85/976,973
` 85/976,974
` 85/976,975
` 85/977,054
`
`For the Mark: OLLO
`
`
`
`Opposer,
`
`PREMIER SYSTEMS USA, INC.
`
`
`
`v.
`
`DISH Network LLC
`
`
`
`
`
`Applicant.
`
`
`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION
`FOR LEAVE TO AMEND ITS CONSOLIDATED NOTICE OF OPPOSITION
`
`I.
`
`INTRODUCTION
`
`Applicant DISH Network L.L.C. (“Applicant”) opposes Opposer Premier Systems USA,
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`Inc.’s (“Opposer”) motion for leave to amend its consolidated notice of opposition (the
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`“Motion”) on the grounds of futility. The evidence in the record establishes beyond reasonable
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`dispute that Applicant has a bona fide intent to use the applied-for mark. Specifically, Applicant
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`has produced over 3,000 pages of documents demonstrating its investment of over $3 billion in
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`the last seven years acquiring wireless spectrum to enter the wireless communications business
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`and compete with incumbent providers such as AT&T, Verizon, and T-Mobile. These
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`documents include Securities and Exchange Commission (“SEC”) and Federal Communications
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`Commission (“FCC”) filings relating to Applicant’s work with regulatory agencies to enter this
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`business, including efforts to reclassify Applicant’s wireless spectrum for use in terrestrial
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`communications. These already-produced documents show that Applicant’s efforts began before
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`it filed its applications in 2011. The documents, and additional evidence Applicant may produce
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`during the discovery or the trial phases, demonstrate Applicant’s bona fide intent to use the
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`OLLO mark beyond dispute and render any claim to the contrary futile. The Motion, which
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`Opposer filed three months after it received Applicant’s discovery responses and documents,
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`conflates lack of actual use of the mark covered by Applicant’s Section 1(b) applications with a
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`lack of bona fide intent. Applicant respectfully requests that the Board deny Opposer’s futile and
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`belated request to amend the notice of opposition.
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`II.
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`STATEMENT OF FACTS
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`A. Applicant’s OLLO Applications And The Opposition
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`On February 7 and June 21, 2013, Opposer filed the present Notices of Opposition, which
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`the Board consolidated on December 27, 2013, as Opposition No. 91209226. The consolidated
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`Opposition is directed to all of Applicant’s intent-to-use applications for the mark OLLO,
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`specifically Application Serial Nos. 85/468,715, 85/468,629, 85/976,854, 85/976,855,
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`85/976,856, 85/976,972, 85/976,973, 85/976,974, 85/976,975, and 85/977,054 (collectively, “the
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`OLLO Applications”). Opposer claims that the OLLO Applications are likely to confuse
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`consumers in light of Opposer’s registrations for OLLOCLIP. Neither notice of opposition
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`included a claim that Applicant lacked a bona fide intent to use the OLLO mark.
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`2
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`Applicant filed each of the OLLO Applications as intent-to-use under Section 1(b), 15
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`U.S.C. § 1051(b). See Motion at 2-5. All of the OLLO Applications were filed on November 9,
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`2011. In general terms, Applicant seeks to register OLLO for the following goods and services:
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`telecommunication services, computer intercommunication services, leasing of
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`telecommunications equipment, telecommunications equipment, satellite telecommunications
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`services, television broadcasting to handheld mobile devices, hand-held devices for wireless
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`access to global communications networks, PC tablets, personal digital assistants, accessories for
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`mobile phones, and computer software related to telecommunications systems. See id.
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`B. Applicant’s Efforts To Develop Mobile Wireless Goods And Services
`Under The OLLO Mark
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`Applicant intends to sell wireless services, including terrestrial wireless services, to
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`consumers under the OLLO mark. (Declaration of Ted Henderson (“Henderson Decl.”) at ¶¶ 2-
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`3.) Applicant also intends to sells telecommunications equipment related to these services, such
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`phones and accessories. Id. Prior to offering wireless services under the OLLO mark, Applicant
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`is required by law to obtain licenses to blocks of wireless spectrum and seek approval to use this
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`spectrum for terrestrial wireless services through proceedings before the FCC. (Id. at ¶ 4.)
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`Applicant began acquiring and reclassifying wireless spectrum for use in a terrestrial wireless
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`communication service in 2008, including Applicant’s acquisition of spectrum controlled by
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`TerreStar Networks Inc. starting in 2008 and DBSD North America Inc. in 2011. (Id. at ¶ 5.)
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`Applicant purchased the assets of TerreStar for $1.38 billion and DBSD for $1.36 billion. (Id.)
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`In March 2014, Applicant acquired 176 economic area licenses in a 10 MHz block of the H
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`Block wireless spectrum. (Id. at ¶ 6.) Applicant publicly disclosed these transactions in SEC
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`3
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`filings. (Id. at ¶ 8.) And recently, Applicant participated in Auction 97 for additional wireless
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`spectrum; this auction closed on January 29, 2015. (Id. at 7.)
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`In late-2012 the FCC granted Applicant a license to use its acquired wireless spectrum for
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`terrestrial wireless networks. (Id. at ¶ 9.) This license requires Applicant to build out its network
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`by March 2021 to cover at least 70% of the population in each economic area covered by the
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`licenses. (Id.) As part of its efforts to build out its wireless network, in April 2013, Applicant
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`proposed a $25.5 billion merger with Sprint Nextel Corporation, an established mobile wireless
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`provider. (Id. at ¶ 10.) This bid was withdrawn in June 2013, when SoftBank Corporation, the
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`other merger partner for Sprint, upped its own purchase offer for Sprint. (Id.) Applicant
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`continues to monitor and evaluate options to enter into a transaction with an established mobile
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`wireless provider, and also continues to move forward with efforts to develop its own wireless
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`infrastructure. (Id.)
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`C. Applicant’s Production Of Documents Regarding Its Intent To Use
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`During discovery, Applicant produced thousands of pages of documents related to the
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`FCC proceedings necessary to reclassify Applicant’s wireless spectrum. (Id. at ¶ 11; Declaration
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`of Kevin Bell (“Bell Decl.”) at ¶ 2.) Applicant also produced SEC filings that describe
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`Applicant’s efforts, expenditures, and risks associated in developing its wireless communications
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`network. (Id.) As an example, Applicant’s filings before the SEC specifically describe
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`Applicant’s efforts to obtain FCC approval to use a portion of the 2 GHz wireless spectrum for
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`terrestrial use, and describe the risks associated with building out a wireless communications
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`network using its license for spectrum in the 700 MHz spectrum, a network that would compete
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`with Sprint, Verizon, and other existing wireless carriers. (Bell Decl., Ex. A, DISH0002373-76).
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`4
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`According to these publicly available documents, obtaining the licenses to operate in the
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`spectrum cost $2.860 billion dollars for the 2 GHz spectrum and an additional $712 million
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`dollars (in 2008) for the 700 MHz wireless spectrum. (Id.) Moreover, Applicant is under
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`specific FCC requirements for its 700 MHz spectrum license to provide signal coverage and
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`offer service to at least 70% of the population in each economic area covered by each individual
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`license by the end of the license in June 2019. (Id. at DISH002348) Applicant’s efforts with
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`respect to potential transactions with Sprint, and other efforts to roll out the wireless network as
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`required by its 2012 license from the FCC, represents steps in Applicant’s development of the
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`goods and services identified in the OLLO Applications. (Henderson Decl. at ¶¶ 9-10.)
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`On July 7, 2014, Applicant served responses to Opposer’s discovery requests and
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`simultaneously served responsive documents, including the documents identified above. (Bell
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`Decl. at ¶ 2.) In response to Opposer’s Interrogatory No. 38,1 Applicant answered that it “sought
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`FCC approval for use of its wireless spectrum to enable Applicant to offer Applicant’s Goods
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`and Services.” (Motion, Decl. of Phillips, Ex. A at 31-32.) In total, Applicant produced 3,700
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`pages of documents from Applicant’s FCC and SEC filings in July 2014. (Bell Decl. at ¶ 2.)
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`D. Opposer’s Delay In Seeking Leave To Amend It Notice Of Opposition
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`After Applicant’s service of discovery responses in July, Opposer did not contend that
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`Applicant’s responses related to the intent to use the OLLO mark were deficient nor did it
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`request supplementation. Rather, on October 23, 2014, Opposer served 36 new discovery
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`requests, most of which are directed to “Applicant’s bona fide intent, as defined by 15 U.S.C. §
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`1 Interrogatory No. 38 sought information on “any request by Applicant for governmental or other approval to sell,
`offer, or render any of Applicant’s Goods or Applicants Services in connection with Applicant’s Mark.” (Motion,
`Decl. of Phillips, Ex. A at 32.)
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`
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`5
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`1051(b), to use Applicant’s Alleged OLLO Mark in U.S. Commerce.” (Bell Decl., Ex. B, at 4-5;
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`Ex. C, at 5.) Under the Board’s rules, responses to Opposer’s new discovery requests were due
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`on November 25, 2014, just days before discovery was scheduled to close in this matter.2 At the
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`time it served this new discovery directed to bona fide intent, Opposer had not yet sought leave
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`from the Board to add the claim to this proceeding – Opposer filed the Motion on October 24,
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`2014, the day after serving its discovery, and nearly three-and-a-half months after Applicant
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`served its discovery responses.
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`On November 7, 2014, the parties filed a joint motion to suspend proceedings pending
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`resolution of Opposer’s unrelated motion for partial summary judgment. In that joint motion, the
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`parties asked the Board to suspend the proceedings, including resolution of the present motion,
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`until after the Board’s ruling on the summary judgment motion. On December 8, 2014, the
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`Board suspended the proceedings, but stated that the proceeding would resume after disposition
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`of both the motion for summary judgment and the present motion.3 Applicant has not yet
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`responded or objected to Opposer’s new requests on the subject of intent to use since the parties
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`agreed to suspend the proceedings on November 7, 2014.
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`III. ARGUMENT
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`A. Legal Standard
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`While leave to amend pleadings is generally granted before the close of discovery, leave
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`should nevertheless be denied if entry of the proposed amendment will be prejudicial to the
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`rights of the adverse party. See TBMP § 507.02 (“In view thereof, the Board liberally grants
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`2 Discovery was originally scheduled to close on November 30, 2014.
`3 In light of the parties’ joint motion to suspend proceedings, counsel for Opposer stated that it would not oppose
`this response based on the timing of the filing.
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`
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`6
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`leave to amend pleadings at any stage of a proceeding when justice so requires, unless entry of
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`the proposed amendment would violate settled law or be prejudicial to the rights of the adverse
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`party or parties”). “In deciding whether to grant leave to amend, a tribunal may consider undue
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`delay, prejudice to the opposing party, bad faith or dilatory motive, futility of the amendment,
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`and whether the party has previously amended its pleadings.” American Express Marketing &
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`Development Corp. v. Gilad Development Corp., 94 USPQ.2d 1294, 1297 (TTAB 2010).
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`Proposed amendments are futile if the opposer cannot prevail on the claim as a matter of law.
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`See Institut National des Appellations d'Origine v. Brown-Forman Corp., 47 USPQ.2d 1875,
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`1896 (TTAB 1998). Here, leave should be denied because Opposer’s proposed amendment is
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`futile and because it will cause prejudice to Applicant to respond to discovery and otherwise
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`litigate a claim on which Opposer cannot prevail.
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`B. Opposer’s Proposed Amendment Is Futile
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`The Board should deny leave to add a claim of no bona fide intent to use the marks on
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`the basis of futility. Determination of whether the applicant for a mark under Section 1(b) has a
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`bona fide intent to use said mark is made on an objective basis in light of all the circumstances.
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`See Boston Red Sox v. Sherman, 88 USPQ.2d 1581, 1586 (TTAB 2008). To carry its initial
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`burden, Opposer would need to establish by a preponderance of the evidence that Applicant
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`possesses no such intent to use the mark on the identified goods, with an absence of
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`documentary evidence representing objective proof sufficient to carry this burden. See Rolex
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`Watch U.S.A. Inc. v. AFP Imaging Corp., 101 USPQ.2d 1188, 1197 (TTAB 2011).
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`Here, there is no absence of documentary proof and hence no objective proof sufficient
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`for Opposer to carry its burden: Prior to Opposer’s filing of the Motion, Applicant produced
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`7
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`3,700 pages of documents filed with two separate government agencies that demonstrate
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`Applicant’s ongoing efforts to develop the wireless goods and services covered by the OLLO
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`Applications. (Henderson Decl. at ¶ 7; Bell Decl. at ¶ 2.) The testimony of Applicant’s
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`personnel – which Opposer notably did not seek prior to filing the Motion – elucidates and
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`corroborates the documentary evidence. (Henderson Decl. at ¶¶ 2-12.) These documents
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`produced by Applicant long ago also demonstrate the tremendous financial investment by
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`Applicant to obtain the spectrum and necessary licenses to develop a wireless network. (Bell
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`Decl., Exh. A, DISH0002373-76 (disclosing expenditures of $2.860 billion dollars for the 2
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`GHZ spectrum and an additional $712 million dollars (in 2008) for the 700 MHz wireless
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`spectrum). Therefore, Applicant has already produced objective proof in the form of significant
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`documentary evidence of Applicant’s bona fide intent to develop the goods and services in the
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`OLLO Applications.
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`Moreover, the “objective” circumstances of intent analyzed by the Board are “evidence
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`in form of real life facts and by the actions of the applicant.” L’Oreal S.A. v. Marcon, 102
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`USPQ.2d 1434, 1444 (TTAB 2012) (quoting J.T. McCarthy, McCarthy on Trademarks and
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`Unfair Competition, § 19:14 (4th ed. 2009). The documents that Applicant produced amply
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`demonstrate real life facts. Wireless networks require spectrum, and Applicant’s SEC filings
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`show that Applicant obtained spectrum through its acquisitions of TerreStar, starting in 2008,
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`and DBSD North America in 2011. (Henderson Decl. at ¶ 5.) Applicant obtained additional
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`spectrum in March 2014 and just participated in another auction, which closed on January 29,
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`2015. (Id.at ¶¶ 6-7.) Wireless networks require FCC approval; at the time of the filing of the
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`OLLO Applications in 2011, Applicant’s proceedings before the FCC to reclassify spectrum for
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`8
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`wireless were under way, with the proceedings ending successfully in 2012 with Applicant’s
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`license grant requiring 70% build-out of a network by 2019. (Id. at ¶ 9.) Applicant then sought a
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`merger with Sprint in 2012 to further its development of a network. (Id. at ¶ 10.) These are
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`concrete actions by Applicant to build a wireless network, supported by the documents produced
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`by Applicant. The premise of Opposer’s Motion – that discovery might reveal the lack of bona
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`fide intent – is fatally undermined by these real life facts.
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`The Board’s decisions show that Applicant’s actions constitute bona fide intent to use the
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`OLLO mark. The legislative history of the Trademark Law Revision Act of 1988 explicitly
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`states “[a]n applicant’s bona fide intention to use a mark must reflect an intention that is firm,
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`though it may be contingent on the outcome of an event (that is, market research or product
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`testing).” Kaplan v. Brady, 98 USPQ.2d 1830, 1835 (TTAB 2011) (non-precedential) (quoting
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`Senate Judiciary Comm. Rep. on S. 1883, S.Rep. No. 515, 100th Cong., 2d Sess. 23-25 (1988);
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`see also L’Oreal, 102 USPQ.2d at 1444 (citing the Senate Report on the Trademark Law
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`Revision Act of 1988 for examples of objective circumstances of evidence of bona fide intent to
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`use a mark). Taking concrete steps to build a wireless network through acquisition of spectrum
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`and proceeding before the FCC, even if the wireless network is ultimately dependent on
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`government approval, represents a firm intention of Applicant to use the OLLO mark.
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`Based on the documentary evidence and real life facts in the record, Opposer could not
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`carry its prima facie burden on the claim of no bona fide intent at the hearing, rendering it futile.
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`The Motion should be denied.4
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`4 Even if Opposer carried its prima facie burden on the claim (if leave were allowed), Applicant would be able to
`rebut through evidence of its long-standing history operating wireless communication networks (i.e. Applicant’s
`satellite television business already serving 14 million households nationwide) and of selling and installing
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`9
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
`C. Opposer’s Motion Improperly Focuses On A Lack Of Actual Use Rather
`Than On The Issue Of Intent
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`Opposer argues that discovery to date supports its claim of no bona fide intent because
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`Applicant did not produce evidence of current use of the OLLO marks in commerce (or
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`evidence of imminent use). Motion at 7-9 (“Applicant has spent ‘zero’ dollars advertising or
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`promoting Applicant’s Alleged OLLO Mark;” “Applicant has not attended any trade shows or
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`promotional events to promote the sale of Applicant’s [goods or services] related to Applicant’s
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`Alleged OLLO Mark”). Applicant filed the OLLO Applications as intent-to-use applications as
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`permitted by Section 1(b) and, thus, Applicant’s lack of actual use is irrelevant. In any event,
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`the Motion makes no mention of the thousands of pages of documents produced in discovery
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`and described in the preceding section. Moreover, Opposer implicitly acknowledged that its
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`previous discovery was insufficient to determine whether Applicant possesses a bona fide intent
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`to use the OLLO mark by serving new discovery on that issue one day prior to seeking leave to
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`amend. (Bell Decl., Ex. B and Ex. C.) Therefore, the evidence that Opposer cited carries no
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`weight because it focuses on lack of actual use by Applicant and not, as Opposer claims, a lack
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`of bona fide intent to use.
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`D. Applicant’s Request For Leave Should Be Denied Due To Opposer’s
`Unexplained Delay
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`Finally, the Motion should be denied as Opposer, despite having received through
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`
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`consumer equipment to access subscription services. This, coupled with the wireless spectrum it already owns
`(which approaches the amount held by some of the major current wireless operators), places it in a very good
`position to enter the wireless business. (Henderson Decl. at ¶ 12); see also Rolex Watch, 101 USPQ.2d at 1197; Wet
`Seal Inc. v. FD Management Inc., 82 USPQ.2d 1629, 1643 (TTAB 2007) (“On the other hand, it is clear from
`[witness’s testimony] that applicant had the capacity to market and/or manufacture shampoos and color products,
`having produced them in the past under different marks, which would tend to affirmatively rebut any claim by
`oppose regarding applicant’s intent”). Applicant’s ability to rebut the prima facie case adds to the futility of the
`proposed amendment.
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`10
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`discovery significant documentary evidence from Applicant affirmatively establishing
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`Applicant’s intent, delayed serving new discovery requests directed to the bona fide intent to
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`use until the very end of the (now suspended) discovery period – in fact, Opposer served such
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`requests just one day before Opposer filed the present motion seeking leave to add the claim to
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`this proceeding. Applicant served its interrogatories directed to bona fide intent on October 23,
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`2014, and filed the Motion on October 24, 2014. (Bell Decl. Exhs. B and C (seeking
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`information on “Applicant’s bona fide intent, as defined by 15 U.S.C. § 1051(b), to use
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`Applicant’s Alleged OLLO Mark in U.S. Commerce”)). The documentary evidence of
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`Applicant’s efforts to establish the wireless network disclosed in the OLLO Applications has
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`been in Opposer’s possession since July 2014. (Bell Decl. at ¶ 2.) Opposer offers no
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`explanation for this delay in the new discovery or the Motion, which constitutes a second
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`ground for denial of the Motion. See International Finance Corp. v. Bravo Co., 64 USPQ.2d
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`1597, 1604 (TTAB 2002) (motion for leave to amend denied where although discovery still
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`open, movant provided no explanation for delay in seeking to add new claim). While Applicant
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`is aware the Board’s general practice to liberally grant requests for leave to amend if the request
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`was made during the discovery period, Opposer’s delay in seeking leave when it had possession
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`of the above-cited documents for months is another factor the Board may consider, along with
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`futility, as a basis to deny the Motion.
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`IV. CONCLUSION
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`Therefore, Applicant respectfully requests that the Board deny Opposer’s Motion for
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`Leave to Amend its Notice of Opposition to add a claim of no bona fide intent as the belated
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`request is futile and prejudicial to Applicant.
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`11
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`

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`Dated February 2, 2015
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`Respectfully Submitted,
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`
`
`
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
`
`KILPATRICK TOWNSEND & STOCKTON LLP
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`
`
`
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`
`
`/Ian L. Saffer/
`
`Ian L. Saffer
`Kevin M. Bell
`1400 Wewatta Street, Suite 600
`Denver, CO 80202
`Telephone: (303) 571-4000
`Facsimile: (303) 571-4321
`Email: isaffer@kilpatricktownsend.com
`kbell@kilpatricktownsend.com
`
`
`Attorneys for Applicant/Counterclaim Petitioner
`DISH Network L.L.C.
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`12
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 2, 2015, a true and correct copy of the foregoing
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION FOR LEAVE TO AMEND ITS
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`CONSOLIDATED NOTICE OF OPPOSITION was served on the following counsel of
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`record served via e-mail to the addresses listed below and a courtesy copy is being deposited
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`with the United States Postal Service, first class mail, postage prepaid, in an envelope addressed
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`as follows:
`
`Gregory D. Phillips
`Knobbe Martens Olson & Bear LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`Gregory.Phillips@knobbe.com
`Steven.Nataupsky@knobbe.com
`Paul.Conover@knobbe.com
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`/Kevin M. Bell/
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`Kevin M. Bell
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial Nos.
`
`85/468,715
`85/468,629
`85/976,854
`85/976,855
`85/976,856
`85/976,972
`85/976,973
`85/976,974
`85/976,975
`85/977,054
`
`For the Mark: OLLO
`
`PREMIER SYSTEMS USA, INC.
`
`Opposer,
`
`Consolidated Opposition No. 91209226
`
`DISH Network LLC
`
`Applicant.
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`DECLARATION OF TED HENDERSON IN SUPPORT OF
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`APPLICANT’S OPPOSITION TO OPPOSER’S MOTION
`
`FOR LEAVE TO AMEND ITS CONSOLIDATED NOTICE OF OPPOSITION
`
`I, Ted Henderson, declare as follows:
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`1.
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`I am Vice President — Corporate Development for Applicant DISH Network L.L.C.
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`(“DISH”).
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`I have personal knowledge of the facts set forth below. If called upon and sworn as a
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`witness, I could and would competently testify as set forth below.
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`2.
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`DISH is in the process of developing wireless services, including terrestrial wireless cell
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`phone services, for sale to consumers. DISH intends to offer these services under the OLLO trademark,
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`which is, to my understanding, the subject of the trademark applications opposed in this proceeding.
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`3.
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`In addition to wireless services, DISH also intends to market handheld devices and
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`accessories for those devices to be used to access the wireless services. These handheld devices and
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`accessories will be marketed to consumers under the OLLO trademark.
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`4.
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`Before DISH is able to offer these wireless services, DISH must, by law, obtain licenses
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`to blocks of wireless spectrum and must obtain approval from the Federal Communications Commission
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`for the use of this spectrum for terrestrial wireless services.
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`5.
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`For the wireless services that will be marketed under the OLLO trademark, DISH began
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`acquiring and reclassifying wireless spectrurn for use in a terrestrial wireless network more than seven
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`years ago. In 2008, DISH invested in the capital structure of TerreStar Networks Inc., which owned
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`spectrum in the MSS—S band, a defined part of the wireless spectrum under FCC guidelines. DISH
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`purchased the assets of TerreStar Networks for approximately $1.38 billion in cash in 2011. DISH
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`purchased DBSD North America Inc., which also owned spectrum in the MSS—S band, for
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`approximately $1.36 billion in 201 1. DISH now controls the spectrum previously owned by both
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`TerreStar and DBSD.
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`6.
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`In March 2014, DISH acquired all 176 economic area licenses available for a 10 MHz
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`block of paired airwaves in the H Block for approximately $1.56 billion.
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`7.
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`DISH also participated in Auction 97, where additional wireless spectrum was made
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`available by the FCC. The auction closed on January 29, 2015.
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`8.
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`It is my understanding that DISH must disclose certain material facts regarding its
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`efforts to obtain this wireless spectrum, and the costs associated with those efforts, in its public
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`disclosures filed with the SEC.
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`It is my understanding that DISH’s publicly filed disclosures accurately
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`reflect its efforts and the expenditures made in its efforts to obtain the necessary wireless spectrum.
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`9.
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`In December 2012, the FCC granted DISH licenses to operate the MSS—S band spectrum
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`for terrestrial wireless networks. The license from the FCC requires DISH to build out its network to
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`cover at least 70% of the population in each economic area covered by the licenses by March 2021.
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`10.
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`As part of DISH’s efforts to build out its wireless networks, DISH publicly announced a
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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`$25.5 billion dollar merger bid for Sprint Nextel Corporation in 2013. When Sprint’s other merger
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`partner, SoftBank Corporation, increased its bid in response to DISH, the offer was withdrawn. DISH
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`continues to monitor and evaluate options to enter into a transaction with an established mobile wireless
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`provider, and also continues to move forward with efforts to develop its own wireless infrastructure.
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`1 1.
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`During the discovery process in this proceeding, DISH collected thousands of pages of
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`documents in its custody and control from DlSH’s proceedings before the FCC and its disclosures made
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`to the SEC.
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`It is my understanding these documents were provided to DlSH’s outside counsel for
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`production in this matter.
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`12.
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`DISH currently delivers satellite and internet subscription services, including video
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`services, to approximately 14 million households nationwide. DISH also currently sells and installs the
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`telecommunications hardware necessary to receive the subscription services referred to above. As
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`described above, DISH has acquired a large amount of wireless spectrum, approaching the amount held
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`by some of the current major wireless operators. These efforts place DISH in a very good position to
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`enter the wireless business. Given DISH’s experience with a national subscription video service, DISH
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`already has the capacity, knowledge, and experience necessary to develop and launch a nationwide
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`network.
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`I declare that all statements made herein of my own knowledge are true and all statements made
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`on information and belief are believed to be true.
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`I further declare that these statements are made with
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`the knowledge that willful, false statements and the like so made are punishable by fine or imprisonment,
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`or both, under Section 1001 of Title 18 of the United States Code and that such willful, false statements
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`may jeopardize the validity of the application or document or any registration resulting therefrom.
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`

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`Attorney Docket No. 94803-867231
`Cons lidated Opposition No. 91209226
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`Dated January 2015
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`Vice President - Corporate Development
`DISH Network L.L.C.
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 2, 2015, the foregoing DECLARATION OF TED
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`HENDERSON IN SUPPORT OF APPLICANT’S RESPONSE AND OPPOSITION TO
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`OPPOSER’S MOTION FOR LEAVE TO AMEND ITS CONSOLIDATED NOTICE OF
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`OPPOSITION was served on the following counsel of record served via e-mail to the addresses
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`listed below and a courtesy copy is being deposited with the United States Postal Service, first
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`class mail, postage prepaid, in an envelope addressed as follows:
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`Gregory D. Phillips
`Knobbe Martens Olson & Bear LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`Gregory.Phillips@knobbe.com
`Steven.Nataupsky@knobbe.com
`Paul.Conover@knobbe.com
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`/Kevin M. Bell/
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`Kevin M. Bell
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
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`
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` Consolidated Opposition No. 91209226
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`In re Application Serial Nos. 85/468,715
`85/468,629
`85/976,854
`85/976,855
`85/976,856
`85/976,972
`85/976,973
`85/976,974
`85/976,975
`85/977,054
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`For the Mark: OLLO
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`
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`Opposer,
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`PREMIER SYSTEMS USA, INC.
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`
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`v.
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`DISH Network LLC
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`
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`Applicant.
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`DECLARATION OF KEVIN M. BELL IN SUPPORT OF
`APPLICANT’S RESPONSE AND OPPOSITION TO OPPOSER’S MOTION
`FOR LEAVE TO AMEND ITS CONSOLIDATED NOTICE OF OPPOSITION
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`I, Kevin M. Bell, declare as follows:
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`1.
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`I am an associate with Kilpatrick, Townsend & Stockton LLP, counsel for Applicant
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`DISH Network L.L.C. in the above-entitled Opposition proceeding. I have personal knowledge of the
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`facts set forth below. If called upon and sworn as a witness, I could and would competently testify as set
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`forth below.
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`2.
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`On July 7, 2014, counsel for Applicant served on counsel for Opposer Premier Systems
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`USA, Inc., Applicant’s responses to Opposer’s first set of discovery and simultaneously served on
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`Opposer documents responsive to these requests. Amongst those documents were approximately 3,700
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`pages of documents collected from Applicant’s proceedings before the FCC and filings with the SEC.
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`

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`Attorney Docket No. 94803-867231
`Consolidated Opposition No. 91209226
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`3.
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`Attached hereto as Exhibit A is