IN THE UNITED STATES PATENT AND TRADEMARK OFFIC~
`TRADEMARK TRIALAND APPEAL BOARD
`
`TTAB
`
`Opposition
`Number No.: 91221728
`Status: Pending
`
`Serial No.: 86089670
`
`Application Status:
`Pending
`
`Firehouse Restaurant Group, Inc.
`PLAINTIFF'
`Mark: FIREHOUSE
`Serial#: 74424045
`[among other Marks listed]
`
`vs.
`
`109 South Saint ASAPH, LLC
`DEFENDANT'
`Mark: COLUMBIA FIREHOUSE
`Serial #: 86089670
`
`Table of Contents:
`
`I. Motion for Intervention
`and accompanied Brief ........................................ Page 1 through Page 14
`
`The Briers Background Facts in supporting Documentation:
`
`II. Exhibit: #1 2011 Federal Jury Verdict ....... Cover and 6 Pages
`
`III. Exhibit: #2 2011 Opinion & Order ............. Cover and 35 Pages
`
`IV. Exhibit: #3 Marks Listed in Dispute .......... Cover and 20 Pages
`Notice of Opposition ................ Pages 1 through 9.
`
`V.
`
`Exhibit: #4 Movant's Federal Copyright
`Registration & IP Rights ............................... Cover and 1 Page.
`
`VI. Exhibit: #5 Public Petition I Signatures ..... Cover and 4 Pages
`
`VII. Exhibit: #6 TTAB Prosecution History ....... Cover and 13 Pages
`
`VIII. Conclusion ..................................................... Page#l 4 in Brief (1 Page)
`
`lllllllllllllllll/111111111111111111111111111111111111111111
`12-23-2015
`
`U.S. Pate nt & TMOfc/ TM Mail Rcpt Dt . # 22
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Firehouse Restaurant Group, Inc.
`PLAINTIFF'
`Mark: FIREHOUSE
`Serial #: 7 4424045
`[among other Marks listed)
`
`vs.
`
`109 South Saint ASAPH, LLC
`DEFENDANT'
`Mark: COLUMBIA FIREHOUSE
`Serial #: 86089670
`
`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`Madison East, Concourse Level
`-Room CSS
`600 Dulany Street Alexandria, VA 22314
`
`Opposition
`Number No.: 91221728
`Status: Pending
`
`Serial No.: 86089670
`
`Application Status:
`Pending
`
`MOTION FOR INTERVENTION
`
`The Movant', William H. Rogers, Jr. (hereinafter referred to as "Movant"') respectfully
`
`files this Brief with Points and Authorities in support of its Motion to Intervene1 as of Right or,
`
`Alternatively, to Intervene by Permission.
`
`The Movant' applies for intervention in this action because it has claims against the
`
`Plaintiff, Firehouse Restaurant Group, Inc., DBA "FIREHOUSE SUBS" (hereinafter
`
`"Opposer"') and the Defendant, 109 South Saint ASAPH, LLC. (hereinafter "Applicant') that
`
`arise from the same facts and questions of law that are at issue in this case, and because
`
`permitting all claims to proceed together in the same forum will conserve judicial resources
`
`and ensure the consistent application of federal law in this proceeding before the Trademark
`
`Trial and Appeal Board.
`
`I Fed R. Civ. P. Rule 24
`
`TRADEMARK PROCESS
`RECEIVED
`DEC 2 8 2015
`US PATEl-.JT &
`TRADEMARK OFFICE
`
`l
`
`

`
`The Movant' has a vested interest granted by Federal Statute under The U.S. Copyright
`
`Act, 17 U.S.C. pertaining to the use and/or misappropriation of the word "FIREHOUSE"
`
`and/or the trade name "FIREHOUSE SUBS" inter alia in print publishings. These Intellectual
`
`Properties (i.e. Trade Dress) are embodied in the authored work and have been in print
`
`publishings without any problems arising from any alleged Trademark infringement.
`
`BACKGROUND
`
`A. Statutory and Regulatory Background
`
`The U.S. Copyright Act, 17 U.S.C. §§ l 01 - 810, is Federal legislation enacted by
`
`Congress under its Constitutional grant of authority to protect the writings of authors.
`
`The Constitutional Provision Respecting Copyright is as stated;
`
`The Congress shall have Power ... To promote the Progress of Science and useful
`
`Arts, by securing for limited Times to Authors and Inventors the exclusive Right
`
`to their respective Writings and Discoveries.
`
`-United States Constitution, Article
`
`I, Section 8
`
`In brief part, The Copyright Law of the United States in Title 17 are as follows;
`
`17 U.S. Code § 106 - Exclusive rights in copyrighted works
`
`The owner of a copyright has the exclusive right to reproduce, distribute,
`perform, display,
`license, and to prepare derivative works based on the
`copyrighted work.
`
`Under§ 201. Ownership of copyright
`
`(a) Initial Ownership. - Copyright in a work protected under this title vests
`initially in the author or authors of the work. The authors of a joint work are co(cid:173)
`owners of copyright in the work.
`
`Whereas, Copyright is a form of intellectual property, applicable to certain forms
`of creative work. A work created on or after January 1, 1978, is ordinarily protected by
`copyright from the moment of its creation unti I 70 years after the author's death.
`
`

`
`Whereas, several exclusive rights typically attach to the holder of a copyright.
`
`Under§ 408 . Copyright registration in general
`
`(a) REGISTRATION PERMISSIVE. - At any time during the subsistence of the first term1 of
`copyright in any published or unpublished work in which the copyright was secured before
`January 1, 1978, and during the subsistence of any copyright secured on or after that date, the
`owner of copyright or of any exclusive right in the work may obtain registration of the
`copyright claim by delivering to the Copyright Office the deposit specified by this section,
`together with the application and fee specified by sections 409 and 708 . Such registration is not
`a condition of copyright protection.
`
`WITH EMPHASlS, Movant' is m no way challenging or arguing Copyright Laws
`
`herein or disputing anything before this Board concerning the contents of the Registered
`
`Copyright #:TX7-472-367 or other [ntellectual Property Rights as claimed. Nor is this
`
`proceeding the venue or jurisdiction for any Copyright claims.
`
`WITH EMPHASIS ADDED, the Movant is asserting that he exclusively holds Federal
`
`Rights secured by Copyright Registration( s) and other Intellectual Property Rights among
`
`common law rights that embody the original expression of ideas; published in the 1993
`
`Firehouse Subs Business Booklet, a business strategy and the "Trade-dress" inter alia, for
`
`DBA FIREHOUSE SUBS. Please see Exhibit: #4.
`
`B. Factual Background:
`
`The pending TTAB proceeding currently as actioned by the Opposer and regarding the
`
`Applicant are over a likelihood of confusion over the word "FIREHOUSE" and over an
`
`assortment of issues regarding the use of marks "FIREHOUSE SUBS" displayed in assorted
`
`decorative, fanciful , colorful brand logos. (Shown in the Notice of Opposition Exhibit: #3.
`
`In this currently, pending Board proceeding the Examining Attorney's likelihood of
`
`confusion determination was predicated on the word "FIREHOUSE" being the most
`
`noticeable "salient" feature and the Defendant respectfully disagreed.
`
`There are dispositive facts overlooked or unknown that are germane to this proceeding.
`
`2 "first term" meaning 28 years. measured from the date of publication. which for Movant is 1993
`
`

`
`Accordingly, the Movant is a Registered Copyright holder and has possessed common
`law rights since 1993 with Federal Registration Granted. Please see Exhibit: #4. Movant' is
`charged with administering and enforcing any Copyrights ( 17 U.S. Code § 106 - Exclusive
`rights in copyrighted works) for the Co-Author, Movant' and in Fiduciary Duty to the
`
`Christian Leon Irrevocable Trust created 1994.
`
`See 17 U.S. Code Chapter 5 - Copyright Infringement and remedies. The Movant is
`
`authorized by Federal Statute and granted rights to protect from misappropriation and/or to file
`
`suit to enforce rights whenever issues of Copyright (or related Trade Dress issues) has been
`
`identified or as they arise and may seek both equitable and monetary relief if necessary.
`
`General Facts About The Movant's Intellectual Property Rights:
`
`The Movant' exclusively possesses Federal Copyrights and common law rights
`
`pertaining to the authored and published 1993 Firehouse Subs Business Booklet before the
`
`first "Firehouse Subs" Store Grand-Opening in 1994. The 1993 Firehouse Subs Business
`
`Booklet bears the trade name "FIREHOUSE SUBS" and contains detailed and key
`
`architectural plans for the proposed Firehouse Subs business venture in text narratives and
`
`primitive graphics depicting colors, textures, shapes in Trade Dress (" look and feel"). The
`
`1993 Booklet Cover bears the trade name "FIREHOUSE SUBS" was used the architectural
`
`blue print for the first Restaurant including the first "FIREHOUSE SUBS" Mural "look and
`
`feel". The 1993 Firehouse Subs Business Booklet Intellectual Property is still distinctly laced
`
`in the "FIREHOUSE SUBS" Franchise model as embellished. The 1993 Firehouse Subs
`
`Business Booklet embodies the original expre~sion of ideas inter alia concerning Intellectual
`Property Rights of the Movant' (and Co-Authors) and/or affecting third-parties. The 1993
`Firehouse Subs Business Booklet embodied Intellectual Properties utilized since 1993;
`
`embellished or in deri vative forms, are used daily on as printed signs, bags, wraps, cups, etc.
`There have been misappropriations concerning the 1993 Firehouse Subs Business Booklet
`f ntellectual Properties in the past (i.e. print publishings, Trade Dress). Please see Exhibit: #4.
`
`Movant, a non-party, applying for Intervention exclusively possesses Federal Rights
`
`Registered Copyright #:TX 7-4 72-367 and an interest in this proceeding concerning the
`
`Plaintiff and and Defendant' legal dispute and outcome. Please see Exhibit: #4.
`
`

`
`These interests inter alia now being decided before the Board will be impaired if not
`
`permitted to intervene in support of this pending proceeding before TTAB.
`
`The general public and indeed local, small business owners WORLDWIDE operating in
`Restaurant Services will be affected and have an interest in the outcome as well. Exhibit: #5.
`
`Movant's Additional Factual Comments:
`
`• A. Movant' was a Certified Professional Firefighter serving at Rockledge Fire
`
`Department ("FIREHOUSE") on "A" Shift in Central Florida and did graduated
`
`Ocala Fire College Florida. Movant' remains good friends with the Rockledge
`
`Fire Department friends he served with 28 years ago and other Firefighter
`personnel I friends. Movant' has intimately known ("Best-man", "God-father",
`Business Ventures, etc.) the Co-Founder's Chris R. Sorensen and Robin 0.
`
`Sorensen over 35 years. Furthermore, Capt Rob C. Sorensen, whom served 47
`
`years on Jacksonville Fire Rescue and Movant' were close personal friends for
`
`many years and shared spiritual faith in fellowship;
`
`• B. Movant' in 1993 was intimately involved in the creation (Founding) of
`
`"Firehouse Subs" (brainstorming) in a multitude of ways and created an
`
`assortment of Intellectual Property utilized by Firehouse Subs, the Co-Founders,
`
`Chris and Robin Sorensen and thereafter the Franchisees. (i .e. DBA, "Firehouse
`
`Subs", Business Expressions, Common Law Marks and Trade Dress);
`
`• C. Movant' fully understands Copyright Registration does NOT protect
`
`Trademarks under Copyright Statute. There have been rights in dispute over
`
`Intellectual Properties Co-Authored, like commons law marks, Trade Name
`
`(DBA) and Trade Dress ("shapes, colors, textures" "Look and Feel"); however,
`
`that subject is not at issue in this proceeding nor should it be.;
`
`• D. Movant understands; the idea-expression divide differentiates between ideas
`
`and expression, and states that copyright protects only the original expression of
`
`ideas, and not the ideas themselves. This principle, first clarified in the 1879 case
`
`of Baker v. Selden, Codified in 17 U.S.C. § 102(b );
`
`

`
`•
`
`•
`
`•
`
`E. Movant' understands copyrights are secured at creation;
`
`F. Movant' strongly asserts that further idea misappropriation is the main concern
`
`m
`
`this proceeding and seeks
`
`intervening protection
`
`to challenge any
`
`misappropriation that may occur in this proceeding;
`
`G. Movant seeks to challenge, should it be necessary, with respect to the
`
`Movant's Authorship and the print publishings that are exclusive to Co-Author
`Movant' under Copyright Registration I US. Federal Statute;
`• H. Movants seeks to avoid harm and/or any foreseeable misappropriation or
`
`unauthorized or improper use with regards to the Registered Copyrights or other
`
`Intellectual Properties as it may concern the parties adversarial dispute.
`
`Movant' has an interest in this matter and outcome and cannot be fully represented or
`protected by the Plaintiff or Defendant (See Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th Cir.
`
`2014). These interests inter alia now being decided before the Board will be impaired if not
`
`permitted to intervene in support of this pending proceeding before TTAB.
`
`Accordingly, these legal issues before the Board are surrounding the use of the word
`
`"FIREHOUSE" or "FIREHOUSE SUBS".
`
`The general public knowledge and belief is that the claims in this proceeding by the
`
`Plaintiff, Opposer against Defendant', Trademark Applicant have already been adjudicated in
`
`what was over a three (3) year legal action before the Federal District Court of Florence, South
`Carolina before the August 19th 2011 unanimous Jury VerdictJ See Exhibit: #1. The Federal
`Jury Verdict~ was upheld by Judge Harwell Opinion on September 17th 2011. See Exhibit: #2.
`
`Any disclosures~ herein offered are in defense of the Movant' applying for Intervention
`under Federal Statute and required to provide fit background facts. The Board may need such
`
`publicly available facts to uphold precedence~. Any defenses in disclosure may support
`
`Movant's Intervention Application as "germane" to this proceeding or Motion for Settlement.
`
`3 Scurmont LLC v. Firehouse Restaurant Group Inc, No. 4:2009cv00618 - Document 164 (D.S.C. 2011) !SEE EXHIBITS!
`4
`37 C FR. Federal Rule of Civil Procedure; and FRCP 26(a)( I )(B) " Initial Disclosures" Under TBMP I 01 .03 Decisional Law. Proceedings before the Board are
`also governed to a large extent bv precedential decisions in prior cases . Under issue preclusion or doctrines of collateral estoppel and ·'j udicial estoppel, law of
`the case·· as published/cited. Pursuant to Federal Trade Commission Act ( 15 USC 45) prohibits " unfair or deceptive acts or practices in or affecting commerce.·
`5 Scurmont LLC v. Firehouse Restaurant Group Inc, No. 4:2009cv00618 - Document 164 (O.S.C. 2011) *EXHIBITS: #1. #2. & #3. herein
`
`

`
`Added Points of Authorities in Dispositive Facts
`as they relate to questions of law in this proceeding:
`
`. ~ The legal subject at issue inter alia regarding this Board proceeding
`. ~ The legal subject at issue in this proceeding, as a matter of law, under the
`
`permits Movant' to apply for Intervention under Fed R. Civ. P. Rule 24;
`
`"Full Faith and Credit Clause" secured by superseding Constitutional Lawfi is
`
`barred. As Codified in 28 U.S. Code § 1738;
`
`. ~ The legal subject at issue in this proceeding are barred, as as a matter of
`
`law, under claim preclusions (i.e. issue preclusion) the likes of; Res judicata or
`Collateral estoppel 1;
`
`. ~ The legal subject at issue in this proceeding pursuant to "the Lanham Acts
`
`• provides that trademarks procured by fraud are unenforceable.";
`• The enforcement of a "right in gross" under the color of law is moot;
`• ~ A Registration Application(s) that is an "lnstitution"2 the likes of an
`established "FIREHOUSE" and serving US townships ("goodwill") since early
`
`1600's (earlier worldwide) is forbidden under USC 15 §1051 and so moot/barred;
`
`. ~ Accordingly, considerations to uphold precedents are needed, sou sponte .
`
`Movant' asserts he has intellectual property rights (Federal Rights under Statute) and is
`
`also bound by Fiduciary duties concerning the interests in the subject of this proceeding and
`the outcome.
`As a general rule, "no representation constitutes inadequate representation."
`Yniguez, 939 F.2d at 737 (emphasis added). Movant' has significantly protect-able interest in
`
`the subject of the action and outcome.
`
`A granted Intervention for the Movant' will provide germane, material facts to the
`Motion for Settlement in this proceeding. CITING: "A material fact is a fact that could
`
`matter to (have legal impact on) the outcome of the case." Anderson v. Liberty.
`
`6 Article IV, Section I of the United States Constitution, known as the "Full Faith and Credit Clause'', addresses the duties that states within the United States have
`to respect the "public acts, records, and judicial proceedi ngs of every other state."
`7 TBMP § IO I APPLICA BL E AUT HO RJTY &; FRCP ·'See Yamaha International Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d I 00 I, I 004 (Fed. Cir.
`1988). and IO 1.03 Decisional Law Proceedings before the Board are also governed, to a large extent, by precedential decisions in prior cases. And " A
`nonprecedenti al" ·'dec ision will, however, be considered" in determini ng iss ues of claim" " iss ue preclusion", ·'judicial estoppel, law of the case, or the li ke,"
`8 Citing: Lone Star Steakhouse & Saloon, Inc. v. Alpha of VA, Inc., 43 F.3d 922, 93 1, n. 12 (4th Cir. 1995),
`which said that "the Lanham Act provides that trademarks procured by fraud are unenforceable."
`9 Under USC 15 ~ I 05 1 an "Institution" as a mark is forbidden . In part; " Institution" ·'An organization or fo undation for the exercise of some public pumose or
`function· ·'By the term " institution" in thi s sense is to be unde rstood an establishment or organization which is permanent in its nature. as distinguished fro m a n
`-Law Dicti onary: <B lack's Law Dictionary)·'
`enterprise Humphries v. Little Sisters of the l' oor, 20 Ohio St. 200; Ind ianapolis v. Sturdevant 24 Ind. 39 1.
`
`1
`
`

`
`ARGUMENT
`
`The assertions m the above paragraphs in Pages 1 through 7 and in the below
`
`paragraphs in Pages 7 through 14 are incorporated herein by this reference as if set forth fully
`
`herein below.
`
`A. Movant is Entitled to Intervene as of Right.
`Federal Rule 24(a)(2) states that, upon timely application anyone shall be permitted to
`intervene in an action . . . when the applicant claims an interest relating to the property or
`
`transaction which is the subject of the action and the applicant is so situated that the
`disposition of the action may as a practical matter impair or impede the applicant's ability to
`
`protect that interest, unless the applicant's interest is adequately represented by existing
`
`parties.
`Fed. R. Civ. P. 24(a)(2). Four elements must be shown before a court must grant
`intervention in any particular case: the timeliness of the motion to intervene; the applicant's
`
`"significantly protectable" interest in the subject of the action; potential impairment of the
`applicant's ability to protect that interest if intervention is not granted; and inadequate
`
`representation of the movant's interests by the existing parties. United States v. City of Los
`Angeles, 288 F.3d 391 , 397 (9th Cir. 2002). Courts "generally ' construe [the Rule] broadly in
`
`favor of proposed intervenors."' Id. (quoting United States ex rel. McGough v. Covington
`Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)).
`
`1. The Movant's Motion is Timely.
`"Timeliness is ' the threshold requirement for intervention as of right."' League of
`United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting United
`Three factors are relevant to
`States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990)).
`
`determining whether any Rule 24(a)(2) motion is timely filed: (1) the stage of the proceeding
`
`at which the applicant seeks to intervene; (2) possible prejudice to other parties; and (3) the
`reason for and length of any delay in moving to intervene. Tocher v. City of Santa Ana, 219
`
`F.3d 1040, 1044 (9th Cir. 2000).
`
`

`
`In this Board proceeding, the Opposer' filed his Opposition complaint against 109
`SOUTH SAINT ASAPH, LLC. (hereinafter referred to as "Applicant") on Filing Date
`December 30th 2014. The Defendant, Applicant filed their answer on October 24th 2014.
`
`Settlement negotiations are on going currently and the Board has suspended the proceeding
`with the exception of a motion "germane" to the "Settlement" Motion .ill.
`
`The date when the movant's learned of this TTAB proceeding and that intervention was
`needed was not until December 14th 2015
`
`The Initial Disclosures under 37 CFR § 2.120(a)(3) and TMP 401.02 as mandated are
`not other record as of yet (absent) in this proceeding and the parties are in the Discovery
`
`phase. Neither Opposer' nor the Defendant, Applicant' would be prejudiced by the Movant's
`participation in this action at this time, nor could they argue that the Movant's delayed unduly
`before filing. Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995)
`
`(upholding district court's timeliness finding, in part because "[t]he intervention motion was
`
`filed at a very early stage, before any hearings or rulings on substantive matters")
`
`CITING: U.S. Supreme Court NAACP v. New York, 413 U.S. 345 (1973)
`
`In discussing determinations of timeliness, the Supreme Court established the general
`rule that the trial court is to take into account "all" the circumstances." 413 U.S. at 366. The
`
`Court probably believed that, in view of the wide variety of factors courts have considered
`relevant to timeliness.
`
`The timeliness of a motion to intervene is determined not by reference to the date on
`which the suit began or the date on which the would-be intervenors learned that it was
`pending, but rather by reference to the date when the movants learned that intervention was
`needed to protect their interests. See Diaz v. Southern Drilling Corp. , 427 F.2d 1118, 11 25
`
`(CA5 1970); cf Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U. S.
`
`129 (1967).
`
`IO 37 CF R 2.127 - Moti ons ... When any party files a motion to dismiss. or a motion fo r judgment on the pleadings. or a motion
`for summ ary judgment, or any other motion which is potentiall y dispositive of a proceed ing, the case wi ll be suspended by the
`Trademark Trial and Appeal Board with respect to all matters not germa ne to the motion and no party should file any paper
`which is not germane to the motion except as otherwise specified in the Board's sus pension order."
`
`

`
`2. The Movant' Has a Significant Protectable Interest in the Existing Action.
`"An applicant [for intervention] has a 'significant protectable interest' in an action if (1)
`it asserts an interest that is protected under some law, and (2) there is a 'relationship' between
`its legally protected interest and the plaintiff's claims."' Los Angeles, 288 F.3d at 393 (quoting
`Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). "The 'interest' test is not a clear(cid:173)
`cut or bright-line rule, [however,] because '(n]o specific legal or equitable interest need be
`established."' Id. (quoting Greene v. United States, 996 F.2d 973, 980 (9th Cir. 1993) ).
`
`Instead, the test is '"primarily a practical guide to disposing of lawsuits by involving as many
`
`apparently concerned persons as is compatible with efficiency and due process."' Id. (quoting
`County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980)).
`
`In this proceeding, the Movant is charged (Fiduciary Duties) with enforcement of
`exclusive Copyrights granted Federal Registration and has an interest in enforcing the Federal
`Rights (as statutorily required) and in implementing a legal point of fact and/or challenge on
`behalf of the public interest11 in ending this proceeding lawfully and equitably.
`
`Title 17 U.S.C, The Copyright Act, itself enables the Movant' to commence a legal
`action to advance
`this
`interest when any
`infringement and/or Intellectual Property
`misappropriation is prohibited by Federal Copyright Law, like authored publications,
`derivative forms and distribution in print takes place. 12 See Title 17 U.S.C.
`
`The Movant also has an interest in ensuring that under 17 U.S. Code § 106A
`17 U.S. Code § 106A - Rights of certain authors to attribution and integrity
`In pertinent part states;
`
`(a) Rights of Attribution and Jntegrity.-Subject to section 107 and independent
`of the exclusive rights provided in section 106, the author of a work of visual art(cid:173)
`( A) to prevent any intentional distortion, mutilation, or other modification of that
`work which would be prejudicial to his or her honor or reputation, and any
`intentional distortion. mutilation. or modification of that work is a violation of
`that right. and. .. (emphasis added)
`
`11 See Exhibit:#S. Enclosed hard copy ofa Public Petition regarding the word " FIR EHOUSE" on-line at "Change" Website
`12 C f. Diamond v. Charl es, 476 U.S. 54, 68-69 ( 1986) (suggesting that any party that has standing to bring its own suit has a sufficient interest to
`intervene in a pending suit).
`
`

`
`The factual circumstances underlying the Movant's claims herein also form the basis of
`the parties federal and state claims or also other non-parties federal and state claims (i.e
`Alexandria Va., Myrtle Beach NC. (See Exhibit: #6. TTAB Prosecution History) where use of
`the word "FIREHOUSE" or the listed marks are in question. Because the alternative to the
`Movant's intervention is a separate action including the Movant's full range of claims herein,
`
`the "interest" test's efficiency goals are best met if intervention is permitted here. See Greene,
`996 F.2d at 979-80 (dissenting opinion) (discussing Rule 24(a)(2)'s efficiency rationale).
`
`3. The Movant's Interest Would Be Impaired If It Does Not Intervene.
`"'If an absentee would be substantially affected in a practical sense by the determination
`
`made in an action, he should, as a general rule, be entitled to intervene."' Southwest Ctr., 268
`
`F.3d at 822 (quoting Fed R. Civ. P. 24 advisory committee note). Intervention may be required
`"when considerations of stare decisis indicate that an applicant's interest will be practically
`
`impaired." Greene, 996 F.2d at 977 (citing Oregon, 839 F.2d at 638); see also Yniguez v.
`Arizona, 939 F.2d 727 (9th Cir. 1991) (in reversing district court's denial of Rule 24(a)(2)
`
`motion, stating that "jurisprudential concerns might cause [later courts] to find the reasoning
`
`of the district court more persuasive than they might otherwise find a similar argument to be,
`and ... they might choose to accept the district court's reasoning to avoid confusion, lack of
`finality, and disrespect for law").
`
`Because the stare decisis effect of a holding in favor of the legal parties may affect
`negatively the Movant's efforts to enforce Title 17, Copyrights among other things, both in this
`case and in other cases involving Registered Copyrights and common law, the impairment
`factor is met here.
`
`4. The Existing Parties Do Not Adequately Represent the Movant's Interest.
`In determining whether existing parties adequately represent the interest of an applicant
`for intervention under Rule 24(a)(2), this Board must consider: "(1) whether the interest of a
`
`present party is such that it will undoubtedly make all the intervenor's arguments; (2) whether
`
`the present party is capable and willing to make such arguments; and (3) whether the would-be
`
`intervenor would offer any necessary elements to the proceedings that other parties would
`
`neglect."
`
`11
`
`

`
`CITING: Los Angeles, 288 F.3d at 398 (quoting Northwest Forest Res. Council v.
`Glickman, 82 F.3d 825, 838 (9th Cir. 1996)).
`"[T]he burden of showing inadequacy is ,
`'minimal,' and the applicant need only show that representation of its interests by existing
`parties 'may be' inadequate." Southwest Ctr., 268 F.3d at 823 (citing Trbovich v. United Mine
`Workers, 404 U.S. 528, 538 n.10 (1972)). As a general rule, "no representation constitutes
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`inadequate representation." Yniguez, 939 F.2d at 737 (emphasis added).
`
`In this case, the Movant's interest in enforcing Copyrights and its interest in ensuring
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`that no misappropriation or infringement under 17 U.S. Code § 106A - Rights of certain
`authors to attribution and integrity. In part stating;
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`(A) to prevent any intentional distortion,
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`mutilation, or other modification of that work which would be prejudicial to his or her honor
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`or reputation, and any intentional distortion. mutilation. or modification of that work is a
`violation ofthat right. are clearly unrepresented by the existing parties.
`
`The captioned parties to this Board proceeding have not raised U.S.C. 17 Title claims,
`and their interest in enforcing any sections or misappropriation of Intellectual Property Rights
`owned by Movant' diverges from that of the Movant'. Furthermore, even if the Plaintiff
`Opposer and Defendant, Applicant in this proceeding could be said to represent the public
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`interest, the other parties are is incapable of making all the arguments that the Movant' will
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`make if allowed to intervene.
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`B. Alternatively. the Movant's Should Be Granted Permissive Intervention.
`Rule 24(b ), governing permissive intervention, states that
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`[ulpon timely application anyone may be permitted to intervene in an action: (1)
`wlien a statute of the United States confers a conditional right to intervene; or (2)
`when an applicant's claim or defense and the main action nave a guestion of law or
`fact in common. When a party to an action relies for ground of claim or defense
`UQgn any statute or executive order administered by a federal or state governmental
`otticer or agency or upon any regulation, order, requirement, or agreement issued or
`made pursuant to the statute or executive order, the officer or agency upon timely
`8:PPlication may be permitted to intervene in the action. In exercising its discret10n
`tfie court shall consider whether the intervention will unduly delay or prejudice the
`adjudication of the rights of the original parties.
`
`Fed R. Civ. P. 24(b ). Rule 24(b) thus expressly provides for permissive intervention by
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`the Department when a federal statute confers upon it a conditional right of intervention.
`
`

`
`In this case, Title 17 of the US Code, Intellectual Property Rights and common law
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`rights, as incorporated by reference herein, and the remedies under Title 1 7 of the US Code, or
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`misappropriation of the Intellectual Property Rights, confer such legal standing and
`conditional right of intervention in this proceeding and matters of general public importance.
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`The Movant's' Motion and brief meets all common law prerequisites for permissive
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`intervention:
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`there are independent grounds for this Court's jurisdiction; the application in
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`motion is timely; and the Movant's' claims and the main action have questions of law and fact
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`in common. San Jose Mercury News, Inc. v. U.S. District Court-Northern District (San Jose),
`187 F.3d 1096, 1100 (9th Cir. 1999) (quoting United Latin Am. Citizens, 131 F.3d at 1308).
`
`This Court will have federal question jurisdiction over any action the Movant' might bring
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`including claims under Title 17 US Code inter alia or otherwise. And, because the same
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`timeliness factors apply to determine whether either permissive intervention or intervention as
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`of right is appropriate, see Mercury News, 187 F.3d at 1100-01, as shown above, this motion is
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`timely. Finally, the Movant's and Plaintiff Opposer's claims have both legal questions and
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`factual questions in common.
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`The Movant's intervention at this time satisfies the threshold requirements for
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`permissive intervention, and would not delay the main action nor unfairly prejudice the
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`existing parties, the court should grant permissive intervention here.
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`5. Exceptions under 37 CFR § 2.127(d) for Motion During Suspension Periods:
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`There are lawful exceptions for the Board to accept and receive the potentially
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`dispositive Motion to Intervene under 37 CFR § 2.127(d) during this suspension period with
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`respect to the "Motion for Settlement". Movant' asserts the Motion for Intervention and
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`accompanied brief is indeed "germane" to this proceeding "and sets out the claim or defense
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`for which intervention is sought"u inter alia while applying for Intervention. Again, the Board
`may, in the interest of justice, need such publicly available facts to uphold precedence11 or
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`other superseding law. [See Page# 7. Authorities Bullet Points] [FRCP 37 Rule 2.127 § I TBMP 528.03]
`
`13 37 CFR § 2.127 (c) - Notice and Pleading (Brief) Required. "'and sets out the claim or defense for which intervention is sought"
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`14 Exhibit: #1., Exhibit: #2., Exhibit: #3.
`
`

`
`CONCLUSION
`
`For the foregoing reasons, and presented concurrently herewith the Movant'
`respectfully requests that the Court grant it leave to intervene in this case, either by right or by
`perm1ss10n.
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`Should the Board DENY an Intervention it is