Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1234033
`
`Filing date:
`
`09/06/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91215293
`
`Plaintiff
`Monosij Dutta-Roy
`
`MONOSIJ DUTTA-ROY
`1450 LA FRANCE ST NE
`UNIT 461
`ATLANTA, GA 30307-2941
`UNITED STATES
`Primary email: monosij.legal@gmail.com
`Secondary email(s): monosij.accounts@gmail.com
`404-664-3605
`
`Opposition/Response to Motion
`
`Monosij Dutta-Roy
`
`monosij.legal@gmail.com, monosij.accounts@gmail.com
`
`/Monosij Dutta-Roy/
`
`09/06/2022
`
`63.MDR.USPTO.Response.Oppo.Leave.AmendSumJud.pdf(427110 bytes )
`Exhibit-Set-E.Trademark.DBA.Registrations.pdf(2197219 bytes )
`Exhibit-Set-F.Jysk.Provided.Marketing.pdf(4862980 bytes )
`A-13.Emails.Dutta-Roy.Jysk-PederSorensen.DomainPurchase.pdf(142289
`bytes )
`Exhibit-
`Set-DD.Dutta-Roy.Interrogatories-ProdDocs-ReqAdmissions.pdf(1179705 bytes
`
`) E
`
`xhibit-Set-JR.Jysk.Responses.Dutta-Roy.Interrogatories.pdf(168561 bytes )
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`US Application Serial No: 85684016
`
`OPPOSITION NUMBER: 91215293
`
`Tuesday, September 6, 2022
`
`| | | | | | | | | | | |
`
`MONOSIJ DUTTA-ROY
`
`Plaintiff/ Opposer: Dutta-Roy
`
`Counsel: pro se
`
`v.
`
`JYSK BED'N LINEN, D/B/A BY DESIGN
`
`Defendant/ Applicant : Jysk
`Counsel: Mr. Jonathan Fain
`
`US Application Serial No:
`
`85684016
`
`Opposition Number:
`
`91215293
`
`Word Mark:
`
`bydesignfurniture.com
`
`Plaintiff/ Opposer Dutta-Roy’s
`
`Response in Opposition to Applicant's Leave to Amend
`
`Summary Judgment
`
`

`

`Contents & Index
`
`Dutta-Roy v. Jysk
`
`Table of Contents
`CONTENTS & INDEX............................................................................................................................1
`PETITIONER DUTTA-ROY’S RESPONSE TO APPLICANT’S LEAVE TO RECONSIDER
`SUMMARY JUDGMENT BY RES JUDICATA.....................................................................................1
`BRIEF IN SUPPORT OF OPPOSITION................................................................................................1
`1. Res judicata AND issue preclusion STANDARDS...........................................................................................3
`A. JYSK’S ARGUMENTS ON issue preclusion...............................................................................................................4
`B. ESSENTIAL MATTERS NOT SEEN AT NDGA & 11th CIRCUIT IN COFIRMING JUDGMENT/ OPINION.......5
`C. NO DIGITAL RECORD OF ANY COMMUNICATION FROM JYSK AND FOUR LAW FIRMS – IS THIS
`BELIEVABLE?................................................................................................................................................................. 7
`2. Res judicata INAPPLICABLE – BY FRAUDULENT MISREPRESENTATION.......................................9
`A. DUTTA-ROY’S DISCOVERY AND JYSK RESPONSES..........................................................................................10
`B. JYSK RESPONSES.................................................................................................................................................... 12
`3. BASIC ANALYSIS OF THE SIX ISSUES IN NDGA/ 11th CIR. RETROSPECT......................................13
`A. Jysk was requested to show how they asked Dutta-Roy to register domain first in April 9, 1999 then subsequently
`renew it in 2004 and 2012 in Jysk’s name.......................................................................................................................13
`B. Could you show what Sonnad could have deployed in 2003 when Dutta-Roy has explicitly stated by evidence the By
`Design Coming site deployed around 2002?...................................................................................................................14
`C. Under what authority did Jysk represent themselves as By Design Furniture in USPTO, and other Court filings,
`indeed starting with Counsel Fain’s demand for domain to Dutta-Roy in June 2012...................................................15
`D. Please provide a copy of the profit-sharing eCommerce agreement that Bratengen’s email shows he has, that
`further states GC Zipperman has a copy of.....................................................................................................................16
`E. On what evidence does Jysk maintain exclusive rights to domain bydesignfurniture.com?......................................17
`4. THREE ESSENTIAL MATTERS – JYSK WANTED TO PURCHASE DOMAIN/ VALIDITY OF
`USPTO APPLICATION/ VALIDITY OF ASSET PURCHASE AGREEMENT...........................................19
`A. JYSK NEVER OWNED bydesignfurniture.com AND INITIALLY WANTED TO PURCHASE DOMAIN IN 2012
`.......................................................................................................................................................................................... 19
`B. IS JYSK’S USPTO APPLICATION VALID? NO EVIDENCE OF FIRST USE ANYWHERE DATE and FIRST
`USE OF COMMERCE DATE HAS BEEN SUBMITTED............................................................................................21
`C. IS JYSK’S ASSET PURCHASE AGREEMENT VALID?.........................................................................................23
`5. CONCLUSION – LEAVE TO AMEND BY res judicata TO BE DENIED.................................................23
`CERTIFICATE OF COMPLIANCE.......................................................................................................1
`CERTIFICATE OF SERVICE.................................................................................................................1
`
`i|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`
`File Reference: This Motion [FIVE Files Attached]
`
`FileName/ PageCount
`
`Exhibits: Set-E: Trademark/ Registrations: By Design
`Furniture
`Exhibits: Set-F: By Design Marketing: Jysk
`
`A-13. Emails: 2012: Dutta-Roy<>Jysk-PederSorensen—
`DomainPurchase
`╬→ Exhibit-DD: Dutta-
`Roy→Disclosures.Interrogatories.ProdDocuments.Admissions
`.AddtlReq
`
`Combined FileName: Exhibit-Set-
`E.Trademark.DBA.Registrations.pdf/ 31
`Combined FileName: Exhibit-Set-
`F.Jysk.Provided.Marketing.pdf/ 33
`A-13.Emails.Dutta-Roy.Jysk-
`PederSorensen.DomainPurchase.pdf/ 9
`Exhibit-Set-DD.Dutta-Roy.Interrogatories-ProdDocs-
`ReqAdmissions.pdf/ 59
`
`╬→ ╚→ Exhibit-JR: Jysk→Responses:Dutta-
`Roy:Interrogatories:ProdDocs.Admiss.AddtlReq
`
`Exhibit-Set-JR.Jysk.Responses.Dutta-Roy.Interrogatories.pdf/
`38
`
`Quick Ship, now Jysk’s, Usage of Mark www.bydesignfurniture.com | 14 | (1-A) | (1-I) | [CI-1] | [CI-11] | {PD-1} | {PD-8} | <RA-1> | <RA-9> | /CR-1/ | /CR-7/
`Quick Ship, now Jysk’s, Usage of Mark www.bydesignfurniture.com | 14 | (1-A) | (1-I) | [CI-1] | [CI-11] | {PD-1} | {PD-8} | <RA-1> | <RA-9> | /CR-1/ | /CR-7/
`
`2 T
`
`wo Signed Agreements (2000 J/V, P/A & Server) | 7 | (2-A) | (2-I) | [CI-12] | [CI-21] | {PD-9} | {PD-12} | <RA-10> | <RA-14> | /CR-8/ | /CR-11/
`Two Signed Agreements (2000 J/V, P/A & Server) | 7 | (2-A) | (2-I) | [CI-12] | [CI-21] | {PD-9} | {PD-12} | <RA-10> | <RA-14> | /CR-8/ | /CR-11/
`
`3 E
`
`-Commerce Development, Content Thereof and By Design Coming | 13 | (3-A) | (3-H) | [CI-22] | [CI-28] | {PD-13} | {PD-15} | <RA-15> | <RA-19> | /CR-12/
`| /CR-14/
`E-Commerce Development, Content Thereof and By Design Coming | 13 | (3-A) | (3-H) | [CI-22] | [CI-28] | {PD-13} | {PD-15} | <RA-15> | <RA-19> | /CR-12/ |
`/CR-14/
`
`4 E
`
`-Commerce Completion and Three Servers Purchased Towards Go-Live | 5 | (4-A) | (4-E) | [CI-29] | [CI-32] | {PD-16} | {PD-18} | <RA-20> | <RA-23> | /CR-
`15/ | /CR-17/
`E-Commerce Completion and Three Servers Purchased Towards Go-Live | 5 | (4-A) | (4-E) | [CI-29] | [CI-32] | {PD-16} | {PD-18} | <RA-20> | <RA-23> | /CR-15/ |
`/CR-17/
`
`5 S
`
`ale of Quick Ship Holding to Jysk Bed’N Linen | 3 | (5-A) | (5-B) | [CI-33] | [CI-43] | {PD-19} | {PD-22} | <RA-24> | <RA-27>| /CR-18/ | /CR-20/
`Sale of Quick Ship Holding to Jysk Bed’N Linen | 3 | (5-A) | (5-B) | [CI-33] | [CI-43] | {PD-19} | {PD-22} | <RA-24>| <RA-27> | /CR-18/ | /CR-20/
`
`6 C
`
`ommon Law Questions in Authority to Represent/ Litigate as ‘By Design Furniture’| 7 | (6-A) | (6-O) | [CI-44] | [CI-47] | {PD-23} | {PD-24} | <RA-28> |
`<RA-31> | /CR-21/ | /CR-25/
`Common Law Questions in Authority to Represent/ Litigate as ‘By Design Furniture’ | 7 | (6-A) | (6-O) | [CI-44] | [CI-47] | {PD-23} | {PD-24} | <RA-28> | <RA-31>
`| /CR-21/ | /CR-25/
`
`ii|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`PETITIONER DUTTA-ROY’S RESPONSE TO APPLICANT’S
`LEAVE TO RECONSIDER SUMMARY JUDGMENT BY res
`judicata
`
`Dutta-Roy v. Jysk
`
`Pro se Plaintiff/ Petitioner Monosij Dutta-Roy (Dutta-Roy) files this Opposition to Jysk’s Summary
`
`Judgment by res judicata noting it must be denied as the Northern District of Georgia (NDGA) Summary
`
`Judgment Order (#1) shown and followup Opinions of the Eleventh Circuit (11th Circuit) shown were
`
`without any evidence from Petitioner Jysk Bed’N Linen (Jysk).
`
`BRIEF IN SUPPORT OF OPPOSITION1
`
`Jysk’s arguments in res judicata and issue preclusion fail not only by the essential fact that no evidence
`
`was submitted by Jysk at NDGA to support their motion for Summary Judgment. Crucially, NDGA and
`
`the 11th Cir. Opinions were granted on the basis that Jysk had an Application pending at the USPTO, and
`
`not whether Jysk’s application was actually granted. Importantly, there was no evidence submitted to
`
`show whether Jysk actually had a common-law right to By Design Furniture or even
`
`bydesignfurniture.com, when their DBA name was shown to be By Design.
`
`Encompassing the above factors, here Dutta-Roy shows that essential evidence uncovered diligently by
`
`Dutta-Roy in this Discovery period (granted graciously by the USPTO) casts significant doubt on
`
`whether:
`
`1)
`
`Jysk’s application at the USPTO, submitted initially by Counsels Jonathan Fain (Fain or Counsel
`
`Fain) and Ashutosh Joshi (Joshi or Counsel Joshi) has any validity?
`
`2) Whether the 2006 Asset Purchase Agreement (2006 APA) of Kjell Bratengen (Bratengen) Quick
`
`Ship by Jysk, enabled by the law firms of Bratengen’s then General Counsel Barry Zipperman
`
`1 It is requested that this Opposition be
`1|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`(GC Zipperman) and his law firm Davis Zipperman, Kirschenbaum and Lotito (DZKL) and Jan
`
`Meyer Law Firm (Jan Meyer), representing Jysk, has any validity?
`
`Also as shown below, NDGA/ 11th Cir., in granting their Opinions, never evaluated how Jysk in their
`
`application at the USPTO, then NDGA and 11th Circuit could proceed without a single shred of digital
`
`communication record (email, web logs and such) against overwhelming evidence of the same shown
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`from Dutta-Roy.
`
`On the basis of Jysk’s false accusations, supported just by Jysk affidavits, NDGA Opinion labeled Dutta-
`
`Roy as a bad-faith cybersquatter. All Jysk really submitted as evidence was Dutta-Roy’s own statements
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`to Jysk Discovery that he intended to profit from then unsigned 2000 eCommerce Partnership Agreement
`
`(2000 P/A) shown.
`
`There NDGA also based its Opinion on emails shown with Jysk’s Peder Sorensen (Sorensen) that Dutta-
`
`Roy was in settlement discussions for domain bydesignfurniture.com for the 4000+ hours of
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`development work on the eCommerce, after having failed to purchase the domain2, especially through
`
`Joshi, as family friend of Jysk’s Shashi Sonnad (Sonnad) and Bratengen, then representing Jysk at the
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`USPTO and NDGA, now mysteriously withdrawn.
`
`NDGA and 11th Cir. Opinions must be unjustified and deemed void just by that no evidence was ever
`
`sought from or submitted by Jysk!3While that issue is not being discussed here, the fact there was no
`
`2 The emails showing Sorensen and Joshi were first trying to purchase domain from Dutta-Roy in
`May 2022 is shown in more detail here.
`3 While Dutta-Roy submitted his Discovery Answers to Jysk on time, he was late in submitting his
`
`Discovery Interrogatories to Jysk by deadline, however he did file a Motion to Compel on time, but still
`
`denied by the NDGA with no reason.
`2|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`evidence for res judicata and issue preclusion to be applicable must be actually moot, especially by the
`
`essential fact that Dutta-Roy registered domain and Mark bydesignfurniture.com prior to the non-
`
`retroactive November 1999 ACPA.4
`
`1. Res judicata AND issue preclusion STANDARDS
`
`Citing the USPTO TTAB in Cancellation No. 92074012 8, which states: ‘The Supreme Court in
`
`Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 n.26 (1982) stated that “so long as opposing
`
`parties had an adequate opportunity to litigate disputed issues of fact, res judicatais properly
`
`applied to decisions of an administrative agency acting in a ‘judicial capacity.’” The
`
`corollary is that when a party did not have an opportunity to litigate disputed issues, a decision
`
`to permit such litigation is favored.Sharp Kabushiki Kaisha, 79 USPQ2d at 1379.’
`
`The undeniable fact is that the District Court, Dutta-Roy did not have ‘the opportunity to litigate
`
`disputed issues,’ simply by that no Discovery was submitted by Jysk. To repeat, District Court rendered
`
`its decisions without any evidence from Jysk for any of their claims, just the strength of Bratengen,
`
`Sonnad, Sorensen and GC Zipperman’s affidavits and these affidavits are shown to be wholly without
`
`merit.
`
`‘Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has
`
`been litigated and decided. This effect is also referred to as direct or collateral estoppel. claim
`
`preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been
`
`litigated, because of a determination that it should have been advanced in an earlier suit.’ Sharp
`
`Kabushiki Kaisha, 79 USPQ2d at 1378.
`
`4 ACPA is abbrev for Anti-Cybersquatting Consumer Protection Act
`3|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`
`It must be obvious in that Sharp next states: ‘Second, res judicata is applicable because there is no
`
`genuine dispute of material fact that the transactional facts are the same. In other words, all the claims
`
`in this cancellation proceeding could have been pleaded and potentially litigated in the
`
`PriorCancellation Proceeding.’
`
`Yes there was no dispute of material fact to NDGA/ 11th Cir., because no material fact was ever submitted
`
`to be disputed. Here every material fact by which Summary Judgment was achieved in District Court is
`
`shown to be non-exitent by Jysk thus the arguments in fact by Jysk affidavitssimply cannot exist. The
`
`transactional facts by which Jysk won Summary Judgment in NDGA were wholly denied to Dutta-Roy.
`
`A.
`
`JYSK’S ARGUMENTS ON issue preclusion
`
`Jysk has argued in its Summary Judgment Motion, now deemed moot, that ‘A motion for summary
`
`judgment is an appropriate procedural method to raise the assertion of issue preclusion “because if the
`
`factual question has been previously determined between the parties, there is no triable issue of fact on
`
`that matter.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 32:87 (5th ed.
`
`Sept. 2018); see also NH Beach Pizza LLC v. Cristy’s Pizza Inc., 119 USPQ2d 1861, 1863 (TTAB 2016).’
`
`‘There IS NO triable issue of fact on [this] matter’ because NO issue of fact to support any of Jysk’s
`
`claims has been shown. As Dutta-Roy just by this Opposition (further elaborated by his upcoming
`
`Motion for Summary Judgment), Jysk has shown no evidence of the essential usage of their claims, or
`
`told it does not exist, or claimed privilege.
`
`4|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`As Jysk notes: ‘The application of issue preclusion requires: (1) identity of an issue in the current and
`
`prior proceedings; (2) actual litigation of that issue in the prior proceeding; (3) that determination of the
`
`issue was necessary in entering judgment in the prior proceeding; and (4) that the party with the burden of
`
`proof on that issue in the second proceeding had a full and fair opportunity to litigate the issue in the prior
`
`proceeding. NH Beach Pizza, 119 USPQ2d at 1864 (citing Montana v. United States, 440 U.S. 147, 153-
`
`54 (1979)),’ -- how could any of these be have been satisfied in any proceeding at NDGA or at the 11th
`
`Circuit if Jysk has not produced any digital evidence on the noted matters?
`
`ESSENTIAL MATTERS NOT SEEN AT NDGA & 11th CIRCUIT IN
`B.
`COFIRMING JUDGMENT/ OPINION
`
`If nothing else, the two essential issues noted above needs to be discussed again at NDGA as stated above
`
`in: 1) whether Jysk’s application at USPTO is valid, 2) whether 2006 APA was valid – are essential
`
`aspects to revisit the NDGA/ 11th Cir. Judgment/ Opinion.
`
`The set of facts uncovered is shown below. While this is an Opposition for Summary Judgment by the res
`
`judicata standard, this set of essential artifacts should suffice in arguing for why res judicata and issue
`
`preclusion should not apply. Dutta-Roy will be submitting a more detailed explanation of the artifacts
`
`with his Motion for Summary Judgment as Pretrial Disclosures as to why he is entitled to Summary
`
`Judgment.
`
`Exhibits: Set-E: Trademark/ Registrations: By Design Furniture: Whether Jysk’s purchase of Quick
`
`Ship DBA By Design was even valid, whether Jysk has even common-law rights to By Design Furniture
`
`is shown by the set of Exhibits below. These were uncovered by Dutta-Roy’s diligent research after Jysk
`
`failed to provide answers and blocked Depositions of Bratengen, Sonnad, GC Zipperman.
`
`5|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`
`How can NDGA/ 11th Cir. decisions be substantial when they did not enforce the Asset Purchase
`
`Agreement shown here for the first time and it is shown to be void at different levels, especially in
`
`that the domain bydesignfurniture.com is not listed in the agreement.
`
`Exhibits: Set-E: Trademark/ Registrations: By Design
`Furniture
`
`Combined FileName: Exhibit-Set-
`E.Trademark.DBA.Registrations.pdf/ 31
`
`Set-E: Files: 9: Range: E-01 – E-09: Pages: 31
`
`Individual: Filename/ Pages
`
`E-01: Jysk.USPTO.TrademarkApplication.2012
`
`E-01.57-08.BDF.SummaryJudgment.Partial.Exhibit-
`F.USPTO.Trademark.Registration.pdf/ 7
`
`E-02: Jysk.USPTO.Application.Online.2012
`
`E-02.Jysk.DBA-ByDesignFurniture.USPTO-Application.pdf/ 1
`
`E-03: Jysk.Georgia-SOS.Registration
`
`E-03.Jysk.Georgia-SOS.Registration.pdf/ 1
`
`E-04: Jysk.DBA-Search.ByDesignFurniture.GA-Courts
`
`E-04.Jysk.DBA-Search.ByDesignFurniture.GA-Courts.pdf/ 5
`
`E-05: Jysk.DBA-Search.ByDesignFurniture.Across-US
`
`E-05.Jysk.DBA-Search.ByDesignFurniture.Across-US.pdf/ 5
`
`E-06: JyskBedNLinen.Registration.Search
`
`E-06.JyskBedNLinen.Registration.Search.pdf/ 5
`
`E-07: Jysk.ByDesign.AssetPurchaseAgreement.Partial
`
`E-07.Jysk.ByDesign.AssetPurchaseAgreement.Partial.pdf/ 1
`
`E-08: Dutta-Roy.Jysk.ThreeServers.Agreement
`
`E-08.Dutta-Roy.Jysk.ThreeServers.Agreement.pdf/ 2
`
`E-09: 57-09.BDF.SummaryJudgment.Partial.Exhibit-
`G.MDR.Discovery.Admissions
`
`E-09.57-09.BDF.SummaryJudgment.Partial.Exhibit-
`G.MDR.Discovery.Admissions.pdf/ 4
`
`Exhibits: Set-F: By Design Marketing: Jysk: Whether Jysk could have even used
`
`bydesignfurniture.com since April 1999, with a first use commerce date as May 1999 is laughable at best.
`
`This and even whether Sonnad could have even deployed a site in 2003 as claimed by her affidavit at
`
`NDGA is the subject of the following set of evidence.
`
`That Jysk, and four law firms, has no digital communication record is highlighted in the closing
`
`Discovery emails with Counsel Fain, citing Xoom conference with Sorensen in attendance.
`
`Exhibits: Set-F: By Design Marketing: Jysk
`
`Combined FileName: Exhibit-Set-
`F.Jysk.Provided.Marketing.pdf/ 33
`
`Set-F: Files: 7: Range: F-01 – F-07: Pages: 33
`
`Individual: Filename/ Pages
`
`F-01: Jysk.Sonnad-Joshi.Website
`
`F-01.Jysk.Sonnad-Joshi.Website.pdf/ 6
`
`F-02: Jysk.Ads.1990s-2000s
`
`F-02.Jysk.Ads.1990s-2000s.pdf/ 12
`
`6|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`F-03: Jysk.Ad.SouthernVoice.2000
`
`F-03.Jysk.Ad.SouthernVoice.2000.pdf/ 1
`
`F-04: Jysk.Ads.Various
`
`F-05: Jysk.Ad.Georgia
`
`F-04.Jysk.Ads.Various.pdf/ 5
`
`F-05.Jysk.Ad.Georgia.pdf/ 1
`
`F-06: Jysk.Ad.NorthCarolina
`
`F-06.Jysk.Ad.NorthCarolina.pdf/ 1
`
`F-07: Emails: Dutta-Roy<>Jysk.Fain—ClosingDiscovery
`
`F-07.Emails.Dutta-Roy.Jysk-JonathanFain.ClosingDiscovery.pdf/ 7
`
`Dutta-Roy v. Jysk
`
`NO DIGITAL RECORD OF ANY COMMUNICATION FROM JYSK AND FOUR
`C.
`LAW FIRMS – IS THIS BELIEVABLE?
`
`Jysk has labeled Dutta-Roy a cyber-squatter in this litigation in defense of it trademark rights to
`
`bydesignfurniture.com. Yet in their responses in Dutta-Roy’s exhaustive Discovery Jysk’s responses fall
`
`into three categories. It is either that:
`
`1)
`
`Jysk does not have the information (any information) requested because they do not have the
`
`emails anymore
`
`2)
`
`3)
`
`Jysk has cited confidential privilege to not provide me the answers requested.
`
`Jysk has stated such information does not exist despite plain English understanding of email
`
`messages I have shown.
`
`Indeed, Jysk has explicitly stated at Discovery conference on July 8, 2022 with Counsel Fain and
`
`Sorensen that Jysk and/ or legal counsels do not possess any email communication or digital records for
`
`their claim and thus a Motion to Compel would be moot. These closing Discovery discussions are
`
` 5 .
`attached per Exhibit: F-07: Emails: Dutta-Roy<>Jysk.Fain—ClosingDiscovery
`
`
`5 Please note that the Exhibit Sets computed for Discovery, as shown by Exhibit-DD and Exhibit-JR
`submitted with this document, follow a grouping of A/B/C/D/E/F and exhibits within the grouping
`(not all submitted here) follow a numbering scheme of 1-X. Thus to keep the reference consistent,
`across submissions, the reference name is kept same. Here Ex: Exhibit: F-07: Emails: Dutta-
`Roy<>Jysk.Fain—ClosingDiscovery refers to the Exhibit number F-07, i.e. from Set F, Document
`07.
`7|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`To properly digest this information Dutta-Roy sent an email confirming this to Counsel Fain, outlining
`
`how through the entire Discovery process now and over the last 10 years Jysk has not provided a single
`
`shred of evidence for any of their claims – but especially any email communication.
`
`Indeed how it is possible to not have any emails from then Quick Ship owner Bratengen, marketing
`
`person Sonnad, manager Sorensen when Jysk applied for mark in 2012 is unbelievable at best but in
`
`reality false claims and obstruction of justice.
`
`To properly digest this information again – it is to be noted that it is not only a conglomerate Jysk and it s
`
`members in the US and Denmark that has failed to provide any information on any of their claims but
`
`members of four separate teams of legal counsel. The three separate teams of legal counsel include: 1)
`
`
`
`
`Jonathan Fain; 2) Ashutosh Joshi, 3) GC Zipperman and his law firm DZKL; 4) Jan Meyer Law.
`
`As noted by Discovery documents by Asset Purchase Agreement shown and in conference, DZKL
`
`represented Quick Ship DBA By Design in being purchased by Jysk Bed’N Linen of Denmark,
`
`represented by Jan Meyer and Associates.
`
`Surely legal teams are supposed to keep records of communications, but especially with an ongoing
`
`litigation in an international Asset Purchase agreement with several teams of lawyers.
`
`It is evident it was not in Jysk’s interest to do so.
`
`All these are essential aspects that NDGA/ 11th Cir. is not aware of, nor investigated.
`
`8|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`A judgment’s preclusive effect is defined by claim preclusion and issue preclusion, which are
`
`collectively referred to as ‘res judicata.’ Taylor v. Sturgell, 553 U.S. 880, 892 (2008). ‘Under the doctrine
`
`of claim preclusion, a final judgment forecloses successive litigation of the very same claim, whether or
`
`not relitigation of the claim raises the same issues as the earlier suit.’ Id. (quoting New Hampshire v.
`
`Maine, 553 U.S. 742, 748 (2001)). In comparison, issue preclusion ‘bars successive litigation of an issue
`
`of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,
`
`even if the issue recurs in the context of a different claim.’ Id. (quoting New Hampshire, 532 U.S. at 748–
`
`49).
`
`Here at least res judicata does not apply by the fact that issue preclusion by the above essential material
`
`facts do not apply. And the above material facts show that Jysk and legal counsels in Fain, Joshi, GC
`
`Zipperman/ DZKL and Jan Meyer were not assessed whether they had completed a valid application
`
`process, or Asset Purchase process to even define whether the Jysk, the Danish entity actually properly
`
`acquired Quick Ship DBA By Design the US entity in 2006.
`
`2. Res judicata INAPPLICABLE – BY FRAUDULENT
`MISREPRESENTATION
`
`There were six essential questions that were sought, after Jysk failed to provide any reasonable answers to
`
`Dutta-Roy’s Discovery request are explored in Dutta-Roy’s forthcoming Motion for Summary Judgment
`
`and Pretrial Disclosures.
`
`Here it is shown the Discovery sent to Jysk and their responses which lacking any essential info given the
`
`lack of communication sought, were boiled down to the six essential questions.
`
`9|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`A.
`
`DUTTA-ROY’S DISCOVERY AND JYSK RESPONSES
`
`Dutta-Roy v. Jysk
`
`First, to be please noted, is that Dutta-Roy had more than diligently set out Interrogatories/ Production
`
`of Documents/ Request forAdmissions with a detailed Topic and Indexing Scheme with four sets of
`
`Exhibits: A/ B/ C/ D. In the Interrogatories, Dutta-Roy followed a numbering pattern for the Continuing
`
`Interrogatories [CI] and Production of Documents {PD}, the Request for Admissions <RA> with a
`
`Table of Contents indeing the pages for each section.
`
`Also in the interest of Jysk time and making Discovery more streamlined, beyond the separate
`
`Continuing Interrogatories [CI], Production of Documents {PD} and Request for Admissions
`
`<RA>, Dutta-Roy made available a document that combined the Continuing Interrogatories [CI],
`
`Production of Documents {PD} and Request for Admissions <RA> into one document named:
`
`00.FirstReq.Interrogatories.Documents.Admissions.Concised.pdf.
`
`Thus concise set of requests Concise Requests /CR/ was an attempt to streamline the answers to the
`
`[CI]s, {PD}s and <RA>s. In anticipation of deposition he noted: ‘whether certain questions will be
`
`answered by deposition or perhaps we can approach an Accelerated Case Resolution (ACR) process will
`
`be part of discussions.’
`
`SECTION PARAS (ONLY WITH CIS)
`INTRODUCE TOPICS
`
`CONTINUING
`INTERROGAT. [CI]
`
`PRODUCTION OF
`DOCUMENTS {PD}
`
`REQUEST FOR
`ADMISSIONS <RA>
`
`CONCISE
`REQUESTS /CR/
`
`NO
`
`SECTION TOPICS
`
`1
`
`2
`
`3
`
`Quick Ship, now Jysk’s, Usage
`of Mark
`www.bydesignfurniture.com
`Two Signed Agreements (2000
`J/V, P/A & Server)
`E-Commerce Development,
`Content Thereof and By
`Design Coming
`
`PARA
`RANGES
`FROM [CI]
`
`[CI-BEG] →
`[CI-END]
`
`{PD-BEG} →
`{PD-END}
`
`<RA-BEG> →
`<RA-END>
`
`/CR-BEG/ →
`/CR-END/
`
`(1-A) ↔ (1-
`I)
`
`[CI-1] ↔ [CI-11] {PD-1} ↔ {PD-8} <RA-1> ↔ <RA-
`9>
`
`/CR-1/ ↔ /CR-7/
`
`(2-A) ↔ (2-
`I)
`
`[CI-12] ↔ [CI-
`21]
`
`{PD-9} ↔ {PD-
`12}
`
`<RA-14> ↔ <RA-
`10>
`
`/CR-8/ ↔ /CR-
`11/
`
`(3-A) ↔ (3-
`H)
`
`[CI-22] ↔ [CI-
`28]
`
`{PD-13} ↔ {PD-
`15}
`
`<RA-15> ↔ <RA-
`19>
`
`/CR-12/ ↔ /CR-
`14/
`
`10|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`4
`
`5
`
`6
`
`E-Commerce Completion and
`Three Servers Purchased
`Towards Go-Live
`Sale of Quick Ship Holding to
`Jysk Bed’N Linen
`Common Law Questions in
`Authority to Represent/
`Litigate as ‘By Design
`Furniture’
`
`Dutta-Roy v. Jysk
`
`(4-A) ↔ (4-
`E)
`
`[CI-29] ↔ [CI-
`32]
`
`{PD-16} ↔ {PD-
`18}
`
`<RA-20> ↔ <RA-
`23>
`
`/CR-15/ ↔ /CR-
`17/
`
`(5-A) ↔ (5-
`B)
`
`[CI-33] ↔ [CI-
`43]
`
`{PD-19} ↔ {PD-
`22}
`
`<RA-24> ↔ <RA-
`27>
`
`/CR-18/ ↔ /CR-
`20/
`
`(6-A) ↔ (6-
`O)
`
`[CI-44] ↔ [CI-
`47]
`
`{PD-23} ↔ {PD-
`24}
`
`<RA-28> ↔ <RA-
`31>
`
`/CR-21/ ↔ /CR-
`25/
`
`Dutta-Roy:Interrogatories::Specific:Sectional/Paragraphed
`
`The sum of Interrogatories to Jysk are attached as Set-DD6 by File Ex: Exhibit-Set-DD.Dutta-
`
`Roy.Interrogatories-ProdDocs-ReqAdmissions.pdf of PageCount: 59.
`
`EX: SET:DD: FILE REFERENCE: DUTTA-ROY
`INTERROGATORIES
`
`FILENAME/ (TOTAL: 5 OF 7 FILES)/ PAGECOUNT (TOTAL:
`58)
`
`╬→
` Exhibit-DD: Dutta-
`→
`Roy Disclosures.Interrogatories.ProdDocuments.Admissi
`ons.AddtlReq
`
`Exhibit-Set-DD.Dutta-Roy.Interrogatories-ProdDocs-
`ReqAdmissions.pdf/ 59
`
`COMBINED
`
`FROM
`
`DD-00-B: Dutta-Roy:Exhibits.Disclosures-Updated
`
`00.Dutta-Roy.Exhibits.Disclosures.Updated.pdf/ 13
`
`DD-01: FirstReq.Continuing-Interrogatories
`
`01.FirstReq.Continuing-Interrogatories.pdf/ 20
`
`DD-02: FirstReq.Production-Documents
`
`02.FirstReq.Production-Documents.pdf/ 9
`
`DD-03: FirstReq.Request-Admissions
`
`03.FirstReq.Request-Admissions.pdf/10
`
`DD-04: AddtlReq.Production-Documents.Admissions
`
`04.AddtlReq.Production-Documents.Admissions.pdf/ 7
`Dutta-Roy:Interrogatories:Combined::Exhibit-DD:Dutta-
`
`Roy→Disclosures.Interrogatories.ProdDocuments.Admissions.AddtlReq
`
`B.
`
`JYSK RESPONSES
`
`The sum of Interrogatories to Jysk Responses are attached as Set-JR7 by File Ex: Exhibit-Set-
`
`JR.Jysk.Responses.Dutta-Roy.Interrogatories.pdf of PageCount: 38.
`
`EX SET: JR: FILE REFERENCE: JYSK RESPONSES
`
`FILENAME/ (TOTAL: 3 OF 4 FILES)/ PAGECOUNT (TOTAL:
`58)
`
`→
`╬→ ╚→
` Exhibit-JR: Jysk Responses:Dutta-
`
`Roy:Interrogatories:ProdDocs.Admiss.AddtlReq
`
`Exhibit-Set-JR.Jysk.Responses.Dutta-
`Roy.Interrogatories.pdf/ 38
`
`6 DD – Abbreviation for: Dutta-Roy Discovery.
`7 JR – Abbreviation for Jysk Responses.
`11|Resp/Oppo: Leave/Amend|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`COMBINED
`
`FROM
`
`╚→
`
`╚→
`
`╚→
`
` JR-01: Jysk-Responses:Dutta-Roy-Interrogatories
`
`01.Jysk-Responses.Dutta-Roy-Interrogatories.pdf/ 28
`
` JR-02: Jysk-Responses:Dutta-Roy-ProductionOfDocuments
`
`02.Jysk-Responses.Dutta-Roy-ProductionDocuments.pdf/ 10
`
` JR-03: Jysk.Responses:Dutta-Roy-ReqAdmissions
`
`03.Jysk-Responses.Dutta-Roy-ReqAdmissions.pdf/ 10
`
`╚→
` JR-04: Jysk.Responses:Addtl.Dutta-Roy-Discovery (> 60
`days late, initially not responded)
`
`04.Jysk-Responses.Addtl.Dutta-Roy-Discovery.pdf/ 10
`
`Jysk:Responses:Combined::Exhibit-JR: Jysk→Responses:Dutta-Roy:Interrogatories:ProdDocs.Admiss.AddtlReq
`
`Dutta-Roy v. Jysk
`
`As noted Dutta-Roy provided significant support for his interrogatories with the indexed Exhibit Sets
`
`A/B/ C/ D (shown in Dutta-Ro Interrogatories Exhibit-DD, but not included here, however shown in
`
`upcoming Summary Judgment arguments with Pretrial Disclosures). But in the end the questions
`
`boiled down to, as shown also in email correspondence with Counsel Fain on July 22, 2022 (F-07:
`
`Emails: Dutta-Roy<>Jysk.Fain—ClosingDiscovery), the are essential outstanding issues8 that, if not
`
`produced by Jysk renders Jysk application at the USPTO legally invalid.
`
`1. Can you show how Jysk asked me to register bydesignfurniture.com in their name not once but three times - and never
`threatened legal action until Joshi and you reached out to me in 2012?
`2. Indeed not only in your USPTO application, but also in legal correspondence to me in May/ June 2012 - under what
`authority did you represent yourself as By Design Furniture or even bydesignfurniture.
`3. Please provide a copy of the profit-sharing eCommerce agreement that email from Bratengen shows he has and GC
`Zipperman has a copy of.
`4. I have said BazaarWorks/ I launched By Design Coming on bydesignfurniture.com in 2002 and Sonnad never could have
`deployed anything on the domain at least until after mid-2004. Can you show otherwise - that Sonnad launched anything on
`the domain in 2003 as she claims?
`5. If the three servers purchased were not for eCommerce what were they for especially if Sonnad has stated they were for