throbber
Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`91212322
`
`Defendant
`Lawrence Foods, Inc.
`ALAIN VILLENEUVE
`VEDDER PRICE PC
`222 N LASALLE ST STE 2400
`CHICAGO, IL 60601
`
`avi||eneuve@vedderprice.com
`
`Motion to Dismiss — Rule 12(b)
`Alain Villeneuve
`
`
`
`avi||eneuve@vedderprice.com
`/Alain Villeneuvel
`
`10/14/2013
`
`37414-00-0068_Motion_to_Dismiss.pdf(563352 bytes )
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA564820
`ESTTA Tracking number:
`10/14/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91212322
`Defendant
`Lawrence Foods, Inc.
`ALAIN VILLENEUVE
`VEDDER PRICE PC
`222 N LASALLE ST STE 2400
`CHICAGO, IL 60601
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`avilleneuve@vedderprice.com
`Motion to Dismiss - Rule 12(b)
`Alain Villeneuve
`avilleneuve@vedderprice.com
`/Alain Villeneuve/
`10/14/2013
`37414-00-0068_Motion_to_Dismiss.pdf(563352 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`SHURFINE FOODS, INC., an Illinois
`corporation,
`
`Opposer,
`
`v.
`
`
`
`Marks: SURESHADES & SURESET
`
`Opposing Marks:
`
`49 Marks (111 International Classes of
`Goods & Services)
`
`
`LAWRENCE FOODS, INC., an Illinois
`corporation,
`
`Opposition No.: 91/212,322
`
`
`
`
`Applicant.
`
`MOTION TO DISMISS UNDER RULE 12(b)(6)
`
`IN THE FIRST ALTERNATIVE
`MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e)
`
`IN THE SECOND ALTERNATIVE
`MOTION FOR DECONSOLIDATION UNDER RULE 42(a)
`
`
`Lawrence Foods, Inc. (“Lawrence Foods” or “Applicant”), in Opposition No. 91/212,322
`
`(the “Opposition”), by and through its Vedder Price, P.C. attorneys hereby moves the Trademark
`
`Trial and Appeal Board (the “Board”) for an order:
`
`1-
`
`2-
`
`3-
`
`Dismissing the Opposition for lack of standing and/or for failure to plead
`essential elements of the prima facie case of confusion pursuant to Rule
`12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.).
`
`In a first alternative, for an order against Opposer requesting that it
`amend the Notice of Opposition to provide a clear and definitive statement
`under Rule 12(e) of the prima facie case of confusion and the associated
`certificates/marks asserted against Applicant.
`
`In a second alternative, for an order deconsolidating the current
`Opposition pursuant
`to Fed. R. Civ. P. 42(a), as both marks
`SURESHADES and SURESET raise different issues of law and fact.
`
`

`
`MOTION TO DISMISS UNDER RULE 12(b)(6)
`
`A. LACK OF STANDING
`
`Because the timeliness requirements under Trademark Act § 13(a), 15 U.S.C. § 1063(a),
`
`for the filing of an opposition are statutory, they cannot be waived by stipulation of the parties,
`
`nor can they be waived by the Board or by the Director on petition. The Equine Touch
`
`Foundation, Inc. v. Equinology, Inc., 91 USPQ2d 1943, 1945 (TTAB 2009) (“The time for filing
`
`a notice of opposition is statutory and cannot be waived by the Board.”). An opposition filed
`
`after the expiration of time, or a failure to comply with the terms of an extension of time to
`
`oppose pursuant to 37 C.F.R. § 2.102 result in forfeiture of the rights to oppose and must be
`
`denied by the Board as late. TBMP § 306.04.
`
`Shurfine Foods, Inc. (“Shurfine”) is the only “person” opposing. Shurfine was initially
`
`granted two extensions of time pursuant to 37 C.F.R. § 2.102 / 15 U.S.C. § 1063(a), and was then
`
`allowed to file this Opposition. (See 06/06/2013 and 07/02/2013 Extensions of Time to Oppose
`
`as Exhibit A and Notice of Opposition as Exhibit B.) Shurfine is the only possible Opposer and
`
`any other potential opposition is untimely under 15 U.S.C. § 1063(a). The dismissal of Shurfine
`
`as a party requires dismissal of the Opposition with prejudice as no party can be substituted in
`
`place of Shurfine.
`
`During due diligence investigations, counsel for Applicant found Shurfine to be a defunct
`
`and dissolved corporation. Upon information and belief, Shurfine stood dissolved since 2011
`
`(see below). On July 25, 2013, during the second extension of time, counsel for Applicant
`
`notified Shurfine of such dissolved status. Applicant provided Shurfine with the image
`
`reproduced below from the online database of the Illinois Secretary of State. Applicant
`
`reminded Opposer that dissolved entities have no standing to Oppose and asked that Shurfine
`
`reinstate itself and prepare itself to cancel Applicant’s mark instead of opposing.
`
`-2-
`
`

`
`Image from Illinois Secretary of State provided to Opposer
`
`
`
`More than a month after receiving such a notice, on September 4, 2013, while Shurfine
`
`was still dissolved, Opposer proceeded ahead and filed the current Notice of Opposition. (See
`
`Exhibit B.) Upon information and belief, Shurfine was reinstated on the Secretary of State
`
`database as of September 10, 2013, more than a week after the last extension of time, the closure
`
`of the statutory period of time.
`
`Only a “person” as defined under 15 U.S.C. § 1063(a) has standing to oppose or can be
`
`granted extensions of time during which to oppose. TBMP § 303.01. The term “person” as used
`
`in the Trademark Act, includes both natural and juristic persons. TBMP § 303.02. Not all
`
`corporate entities can oppose; if an operating division of a corporation is not itself incorporated
`
`or is not otherwise a legal entity which can sue and be sued, it does not have legal standing to
`
`own a mark or to file an application for registration, an opposition, or a petition for cancellation.
`
`-3-
`
`

`
`In re Cambridge Digital Systems, 1 USPQ2d 1659, 1660 n.1 (TTAB 1986). Dissolved entities
`
`are not “persons” and are unable to file and secure any extension of time to oppose under 37
`
`C.F.R. § 2.102(a), much less oppose.
`
`Opposer stood dissolved as a legal entity under the Illinois Administrative Dissolution
`
`Statute. 805 ILCS § 5/12.35. Opposer was administratively dissolved at the latest ninety (90)
`
`days after the failure to file the report. 805 ILCS § 5/12.40(b). Once dissolved, Opposer was
`
`only entitled to wind down its affairs or reinstate itself. 805 ILCS § 5/12.40(c). It had no power
`
`to bring suit before the Board, and the Board had no authority to grant it extensions of time or to
`
`accept the Notice of Opposition.
`
`While Opposer may have met the different requirements of reinstatement following
`
`administrative dissolution of 805 ILCS § 5/12.45, and such a reinstatement allows Opposer’s
`
`ownership of its marks to stand undisturbed under Illinois rules, these local state rules do not
`
`preempt federal law nor grant a right Opposer did not have. The current Opposition was filed on
`
`September 4, 2013 while Opposer stood dissolved. The Opposer was given (on June 6, 2013)
`
`and July 2, 2013 two extensions of time, during which time Opposer stood dissolved. The last of
`
`these three filings was made by Opposer with the actual knowledge of its dissolved status.
`
`The timeliness requirements under the Trademark Act § 13(a), 15 U.S.C. § 1063(a), for
`
`the filing of an opposition are statutory and therefore cannot be waived. The Equine Touch
`
`Foundation, Inc. v. Equinology, Inc., 91 USPQ2d 1943, 1945 (TTAB 2009). While Illinois Law
`
`allows for Shurfine to benefit from reinstatement, Illinois Law does not grant Opposer rights as
`
`of the date of filing. The filings must be denied by the Board. TBMP § 306.04.
`
`A court must dismiss claims from a notice of opposition for failure to state a claim if
`
`“plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
`
`-4-
`
`

`
`Advanced Cardiovascular Sys. v. SciMed Life Sys., 988 F.2d 1157 (Fed. Cir. 1993). When ruling
`
`on a motion to dismiss, although the Board must accept the factual allegations pleaded in the
`
`complaint as true, Abbott Labs. v. Brennan, 952 F.2d 1346, 1354 (Fed. Cir. 1991), “[c]onclusory
`
`allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley
`
`v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998). Lack of standing is a ground for
`
`dismissal under Rule 12(b)(6). “To survive a motion to dismiss, a complaint must contain
`
`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
`
`Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
`
`544, 570 (2007). The pleading must show the plaintiff has standing, which is a valid ground for
`
`denying the registration. Young v. AGB Corp., 152 F.3d 1377, 47 USPQ2d 1752, 1755 (Fed. Cir.
`
`1998).
`
`On the day the Notice of Opposition was filed, Applicant would have been unable to sue
`
`the dissolved Opposer, yet this Opposer believes it has the right to sue Applicant. Dismissal with
`
`prejudice does not greatly prejudice Opposer who simply must wait for Applicant’s marks to
`
`register before it may petition for Cancellation. Applicant moves for dismissal based on Rule
`
`12(b)(6) for lack of standing and lack of filing within the opposition period. Dismissal must be
`
`with prejudice, as the statutory period of opposition has closed.
`
`B. FAILURE TO PLEAD CONFUSION
`
`At page 2 of the Notice of Opposition (see Notice of Opposition at Exhibit B), Opposer at
`
`best offers a highly confusing pleading. The pleading simply explains that Opposer owns
`
`multiple (49) registrations applicable for a variety of goods. Opposer fails to plead any use in
`
`commerce of these marks, offers no date or claim of actual sale in commerce, fails to explain if
`
`the goods are sold at wholesale, retail, or even online. While Shurfine owns the certificates, the
`
`-5-
`
`

`
`pleading is silent as to which (if any) corporate entity manufactures, distributes, and sells these
`
`goods.
`
`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
`
`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129
`
`S. Ct. 1937, 1949 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`
`The pleading must show the plaintiff has standing, which is a valid ground for denying the
`
`registration. Young v. AGB Corp., 152 F.3d 1377, 47 USPQ2d 1752, 1755 (Fed. Cir. 1998).
`
`These pleadings are not complex and Opposer has already opposed hundreds of different
`
`applicants.
`
`Applicant has applied and was granted allowance for a mark related to food icing. In a
`
`good faith effort to understand the pleading, Applicant went on Opposer’s website (believed to
`
`be) at shurfine.com. This visit was unsuccessful as Applicant was unable to find any evidence of
`
`use and sale of icing under any of the cited registrations or marks. The website directs Applicant
`
`to a different site associated with something called “the Western Family” and, based on the URL,
`
`may be operated by a different corporate entity named Shurfine International, a party absent
`
`from this proceeding. Reproduced below is the only evidence found by Applicant as to any icing
`
`sold on a related website for this other corporate entity.
`
`-6-
`
`

`
`westernfamily.com/products/
`
`
`
`A Notice of Opposition must include several elements to withstand dismissal. The
`
`opposition must include (1) a short and plain statement of the reason(s) why oppose believes it
`
`would be damaged by the registration of the opposed mark, and (2) a short and plain statement of
`
`one or more grounds for opposition. See 37 CFR § 2.104(a). Standing and grounds are distinct
`
`inquiries. TBMP § 309.03(a)(2). “To establish priority on a likelihood of confusion claim
`
`brought under Trademark Act § 2(d), a party must prove that, vis-à-vis the other party, it owns “a
`
`mark or trade name previously used in the United States… and not abandoned.” Trademark Act
`
`Section 2, 15 U.S. C. § 1052. A party may establish its own prior proprietary rights in a mark
`
`through ownership of a prior registration, actual use or through use analogous to trademark use,
`
`such as use in advertising brochures, trade publications, catalogues, newspaper advertisements
`
`and Internet websites which creates a public awareness of the designation as a trademark
`
`identifying the party as a source.” Benjamin J. Giersch v. Scripps Networks, Inc., Cancellation
`
`-7-
`
`

`
`No. 92/045,576 (Precedential), March 16, 2009. See also T.A.B. Systems v. PacTel Teletrac, 77
`
`F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996).
`
`One who opposes registration to an applicant under section 2(d) is attempting to protect
`
`his individual rights, as the owner of some means of identifying the source of his goods, by
`
`preventing registration of a mark so similar to that which he asserts identifies source that
`
`concurrent use of the two is likely to cause confusion and thus foil the function of his means of
`
`identification. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
`
`24 (CCPA 1976); American Throwing Co. v. Famous Bathrobe Co., 45 CCPA 737, 250 F.2d
`
`377, 116 USPQ 156 (1957).
`
`“Under section 2(d), as utilized in an opposition, confusion, or a likelihood thereof, is not
`
`recognized where one claiming to be aggrieved by that confusion does not have a right superior
`
`to his opponent's, or where he has not proved that that which he claims identifies him as the
`
`source of goods or services actually does so.” Otto Roth & Co. v. Universal Foods Corp., 640
`
`F.2d 1317 (CCPA 1981).
`
` Opposer does not need to flood the Board or Applicant with evidence, but waving 49
`
`certificates in the air does not give notice. The pleading to sustain a 2(d) confusion ground must
`
`show (a) a right owned by Opposer, (b) use of mark in commerce, and (c) conditions of sales that
`
`may result in confusion. No fewer than 49 registrations are asserted for a total of 111
`
`international classes of goods. Opposer simply concludes:
`
`Applicant’s ‘097 application and ‘125 application so resemble Opposer’s
`registered SHUR FINE, SHURFINE, SHUR VALUE, SHURFRESH,
`SHURSAVE, SHUR SAVING, SHUR FINE CAFÉ, SURE COMFORT, SHUR
`FINE COMMITTED TO QUALITY, SHURFINE COMMITTED TO
`QUALITY, SHURFRESH COMMITTED TO QUALITY, and SHUR SHOT
`marks as to be likely, when used on or in connection with the goods or services of
`the Applicant, to cause confusion, mistake or deception.
`
`-8-
`
`

`
`(Paragraph 5, Notice of Opposition at Exhibit B.) The Opposer pleads it owns
`
`registrations and Applicant’s marks when compared with the registration certificates result in
`
`confusion. The pleading is silent as to everything else. The complaint must include a short and
`
`plain statement of the reason(s) why petitioner believes it is or will be damaged by the
`
`registrations sought to be cancelled. TBMP § 309.03(a)(2). No such statement is present in the
`
`pleading. A plaintiff wishing to plead likelihood of confusion must plead that an Opposer’s
`
`mark, when compared to an Applicant’s marks, when applied to the goods and/or services of the
`
`Opposer, is likely to cause confusion. TBMP § 309.03(e).
`
`Illustrative of Applicant’s confusion, Opposer asserts ownership of U.S. Reg.
`
`No. 3,557,361 for the mark SHURFINE for matches, and cigar and cigarette lighters. Applicant
`
`fails to understand why ownership of cigarette registrations is of any relevance to this case.
`
`Opposer has failed to plead use of the marks, failed to associate the ownership with sales in
`
`commerce, offers no sales of goods in channels of trade, and why the arrival of Applicant’s
`
`marks for icing when used in commerce is likely to result in confusion. For at least this reason,
`
`the pleading must be dismissed without prejudice under Rule 12(b)(6) for failure to state a claim.
`
`IN THE FIRST ALTERNATIVE
`
`MOTION FOR A MORE DEFINITE STATEMENT
`
`Alternatively, Applicant moves for an order for a more definite statement pursuant to
`
`Fed. R. Civ. P. 12(e). TBMP § 505. “A party may move for a more definite statement of a
`
`pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
`
`party cannot reasonably be required to frame a responsive pleading.” Fed. R. Civ. P. 12(e).
`
`Applicant cannot at this time prepare and file a responsive pleading in good faith without
`
`prejudicing itself.
`
`-9-
`
`

`
`Applicant is asked to rely on a list of certificates and extrapolate therefrom the prima
`
`facie case of confusion. Applicant must respond to these strange allegations and ultimately deny
`
`confusion, yet there is no real pleading of confusion between a pending application and products
`
`used in association with a mark. Applicant cannot deny confusion between a certificate of
`
`registration and a pending application, yet Applicant must, as part of the responsive pleading
`
`determine which affirmative defense and/or compulsory defense (if any) is relevant.
`
`Applicant cannot determine what defenses must be raised. A defense attacking the
`
`validity of any one or more of the registrations pleaded in the opposition is a compulsory
`
`counterclaim if grounds for such counterclaim exist at the time when the answer is filed. 37 CFR
`
`§ 2.106(b)(2)(i). Applicant is unclear if this ground exits at this time, and if so for which mark in
`
`which context. The law also warrants that the required fee (see 37 CFR § 2.6) must be paid for
`
`each class sought to be cancelled in each registration against which the counterclaim is filed.
`
`TBMP § 308.02. The current fee under Section 37 CFR 2.6(a)(16) is $300 per class, including
`
`the certificate. It would cost Applicant no less than $33,300 to challenge the validity of the
`
`portfolio asserted against it. Applicant is in no position to decide from the pleading which of the
`
`111 international classes and the 49 Registrations must be invalidated and which will be found
`
`relevant based on the doctrine of related goods. Applicant is unable to prepare and file a good
`
`faith responsive pleading.
`
`Some of the registrations asserted against Applicant are incontestable, others are not.
`
`Each of the 49 Registrations has a different priority date. Most of the certificates relate to
`
`absolutely unrelated goods; to name a just a few, one is directed to matches and cigarettes (Reg.
`
`3,557,361), to puppy food (Reg. 3,557,359), and baby wipes (Reg. 3,546,829).
`
`-10-
`
`

`
`Applicant asks for clarification as to the goods sold by this Opposer and an entry of clear
`
`facts that support a prima facie case of confusion. Opposer must also narrow the certificates
`
`asserted and any family of marks must be pleaded as such. This Board should enter, in the
`
`alternative of a denial of the motion for dismissal under Rule 12(b)(6), a request for a more
`
`definite statement under Rule 12(e).
`
`IN THE SECOND ALTERNATIVE
`
`MOTION TO DECONSOLIDATE
`
`Applicant next moves this Board to deconsolidate the current Opposition into two
`
`oppositions, the first for the mark SURESET and the second for the mark SURESHADES. In the
`
`last year alone, Opposer Shurefine has filed against over 35 different applicants. Each time,
`
`Opposer uses the entire portfolio, irrespective of the relevance of each mark. This Opposer who
`
`misconstrues the law and is determined to own all rights in the United States for any goods or
`
`services with the prefixes: “SUR,” “SHO,” “SURE,” “FUR,” “SHUR,” challenges hundreds of
`
`litigants. In the last 12 months alone, Opposer has filed:
`
`Proceeding Mark(s) Opposed Goods
`77/886,010
`SURVIEW
`Computer software
`85/878,346
`SHOFINE
`Agricultural seeds
`85/894,976
`SUREFEED
`Baby bottles
`91/212,322
`SURESHADES
`Icing
`SURESET
`SUREWORKS
`
`85/845,795
`
`Electronic checkout
`stations
`SURGIVAMARINE Laundry detergent
`SUROSOLVE
`Ear cleaner for cats
`SHUR*GRAIN
`Pet food
`FURSHINE
`Pet nutritional
`supplements
`Restaurant services
`
`SURE FIRE
`TACOS AND
`TORTILLA GRILL
`SURE SPROUT
`S SURE
`
`Garden equipment
`Perfumes
`
`79/128,248
`85/850,130
`85/686,107
`85/817,573
`
`85/797,877
`
`85/674,596
`85/803,265
`
`-11-
`
`

`
`91/210,795
`91/210,781
`
`91/210,746
`91/210,541
`85/811,373
`85/811,956
`85/578,328
`85/746,466
`85/739,720
`85/762,330
`
`85/689,042
`85/679,026
`91/208,712
`
`91/208,711
`85/707,510
`85/663,851
`85/663,648
`
`85/473,105
`85/663,614
`91/208,022
`85/615,825
`91/207,790
`85/417,462
`91/207,182
`
`COSMETICS
`SURESIGN
`SHURTAPE
`SHURTAPE TRUE
`TO YOUR WORK
`SHURTAPE
`SURACO
`SURELITE
`SURLUMA
`SURMERA
`SURE SEED
`SHURSEAL
`SURACO
`THE SURE
`CHOICE
`SURE GREEN
`SURREAL
`SURECONNECT
`
`SURECONNECT
`SUR-GUARD
`SURESIGN
`SURECHECK
`
`SUREHOLD
`SUREFIT
`SURE COTE
`SURE STOP
`SUREOXYL
`SURE SHOT
`SURASLEEP
`
`76/708,755
`
`SURI DRI
`
`Medical kits
`Adhesive tapes
`
`Medication
`Liquid wax candles
`Pharmacy preparations
`Pharmacy preparations
`Grass seeds
`Machine parts
`Anti-inflammatories
`Blood test strips
`
`Fertilizers
`Electronic cigarettes
`Closed transfer system
`for medical goods
`Intravenous system
`Medical dressing
`Diagnostic preparations
`Food monitoring
`devices
`Syringes
`Disposable diapers
`Chemical preparations
`Lazy Susans
`Disinfectants
`Agricultural seeds
`Dietary and nutritional
`supplements
`General cleaning
`material
`
`The breath of the marks in table is rather surprising. Shurfine claims ownership over
`
`
`
`chemical preparations, cleaning materials, nutritional supplements, to name a few. Each time, an
`
`Examiner reviews an applicant’s mark, allows the mark irrespective of the presence of
`
`SHURFINE on the registry and then these Applicants are left to defend against baby food marks,
`
`diapers, etc.
`
`-12-
`
`

`
`At the heart of the Opposer’s claim of broad ownership rights is the creation of a ‘family
`
`of marks’ branded for virtually every good in the continental United States. If actions before a
`
`court involve a common question of law or fact, the court may: (1) join for hearing or trial any or
`
`all matters at issue in the actions; (2) consolidate the actions; or (3) issue any orders to avoid
`
`unnecessary cost or delay. Fed. R. Civ. P. 42(a). The Board has authority to consolidate or
`
`unconsolidated cases. TBMP § 511.
`
`Consolidation or unconsolidation is discretionary with the Board, and may be ordered
`
`upon motion granted by the Board, or upon stipulation of the parties approved by the Board, or
`
`upon the Board’s own initiative. Deconsolidation may occur before an answer is filed. Id.
`
`Opposer did not hesitate to file a combined notice of opposition against both of Applicant’s
`
`marks (SURESET and SURESHADES), this is not surprising, it appear every mark for any good
`
`is within this Opposer’s line of sight.
`
`This Board must send a clear message, this Opposer must weight individually the marks
`
`and the goods being protected for each mark. In each case, this Opposer must do a minimum of
`
`due diligence, review the marks individually and then select the portion of the portfolio to be
`
`used. Opposer must then look at its use in commerce and make sure the Opposer still sells the
`
`goods in commerce and has not abandoned the marks in association with the goods.
`
`SURESET and SURESHADES for Icing are two different marks each with unique
`
`features, unique meanings. Joining two marks with minor differences, where only descriptive
`
`terms are added or with design elements is understandable, but joining different marks is
`
`illogical. Applicant has not applied for SURESET and SURESET ICING but for two completely
`
`different marks.
`
`-13-
`
`

`
`Accordingly, Applicant respectfully requests that this Opposition be dismissed with
`
`prejudice for failure of standing and failure of pleading and in the alternative that this Board help
`
`clarity a Notice designed clearly to create confusion and prevent applicants from reaching trial
`
`by asserting a network of unrelated and abandoned certificates. Because of the amazing number
`
`of times this Opposer asserts these certificates and files notices, this Board should once and for
`
`all take the time and help future litigants enter the Opposition with a chance of defending itself
`
`properly, being able to attack the validity of only those marks relevant to the claim at hand.
`
`Respectfully submitted,
`
`
`
`/Alain Villeneuve/
`Alain Villeneuve
`
`
`
`
`
`-14-
`
`
`
`Dated: October 14, 2013
`
`Alain Villeneuve
`Vedder Price P.C.
`222 N. LaSalle St., Suite 2600
`Chicago Illinois 60601
`(312) 609 7745
`(312) 609 5005 (fax)
`avilleneuve@vedderprice.com
`
`
`

`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 14th day of October, 2013, I served a true and correct copy of the
`foregoing MOTION TO DISMISS UNDER RULE 12(b)(6) IN THE FIRST ALTERNATIVE
`MOTION FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) IN THE SECOND
`ALTERNATIVE MOTION FOR DECONSOLIDATION UNDER RULE 42(a) on the attorney
`for the Petitioner at the address indicated below by depositing said document in the United States
`mail, first class postage prepaid:
`
`Delfina S. Homen
`Marger Johnson & McCollom PC
`210 SW Morrison Street, Suite 400
`Portland, OR 97204
`UNITED STATES
`Attorney for Applicant
`litigationdocketing@techlaw.com, delfina.homen@techlaw.com, amanda.bernardy@techlaw.com
`
`
`Respectfully submitted,
`
`LAWRENCE FOODS, INC.
`
`/s/ Alain Villeneuve
`Alain Villeneuve
`By Its Attorneys
`
`By:
`
`
`
`
`-15-
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: October 14, 2013
`
`Alain Villeneuve
`Vedder Price P.C.
`222 North LaSalle Street
`Suite 2600
`Chicago, Illinois 60601-1003
`T: +1 (312) 609-7500

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