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`ESTTA Tracking number:
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`ESTTA836193
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`Filing date:
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`07/28/2017
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91232896
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Plaintiff
`Boy Scouts of America
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`GARY A HECHT
`FOX ROTHSCHILD LLP
`PO BOX 5231
`PRINCETON, NJ 08543-5231
`UNITED STATES
`Email: ghecht@frof.com, dmcgregor@frof.com, ipdocket@frof.com,
`colszyk@frof.com
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`Other Motions/Papers
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`Gary A. Hecht
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`ghecht@foxrothschild.com, ipdocket@foxrothschild.com, dfowl-
`er@foxrothschild.com, bstaufenberg@foxrothschild.com,
`mscott@foxrothschild.com
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`/gah/
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`07/28/2017
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`Op-
`posers_Reply_in_Support_of_its_Motion_to_Strike_Applicants_Third_Answer_a
`nd_for_entry_of_Default_Judgment_With_Motion_to_Strike_Applicants_Newly_
`Filed_Fourth_Answer.pdf(36093 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
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`Boy Scouts of America,
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`Opposer,
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`CCG Creative, LLC,
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`Applicant.
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`v.
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`Opposition No. 91232896
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`Application Serial No. 86/914,322
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`Mark: “RACK SCOUT”
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`OPPOSER’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE APPLICANT’S
`THIRD ANSWER AND FOR ENTRY OF DEFAULT JUDGMENT
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`MOTION TO STRIKE APPLICANT’S NEWLY FILED FOURTH ANSWER
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`On June 1, 2017, the Board granted Opposer’s Previous Motion to Strike and ordered
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`Applicant to file an answer compliant with the rules. [Dkt. #10]. In response, on June 27, 2017,
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`Applicant filed a Third Answer [Dkt. #11], which also is noncompliant. On July 13, 2017, in
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`response to Applicant’s non-compliant Third Answer, Opposer filed its currently pending Motion
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`To Strike Applicant’s Third Answer And For Entry Of Default Judgment. [Dkt. #12]. Applicant
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`responded on July 13, 2017, with Applicant’s Response to Opposer’s Motions to Strike
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`Applicant’s Third Answer [Dkt. #13], and on the same date, filed a Fourth Answer [Dkt. #14].
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`This Fourth Answer was filed without the Boards leave or Opposing party’s written consent
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`pursuant to Fed. R. Civ. P. 15, and is still noncompliant. Accordingly, Opposer maintains its
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`motion to strike and for entry of default judgment. Applicant also moves to strike Applicant’s
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`Fourth answer as noncompliant with both Rule 15 and Rule 8 of the Federal Rules of Civil
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`Procedure.
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`As discussed in Opposer’s pending motion, Applicant’s Third Answer is noncompliant.
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`Applicant’s attempted Fourth Answer further shows that Applicant will not comply with the rules
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`and continues to waste the time of the Board and Opposer.
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`Argument
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`The Board, in its Order of June 1, 2017, spelled out exactly how to answer the Notice of
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`Opposition:
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`The notice of opposition filed by Opposer consists of 38 paragraphs
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`setting forth the basis of opposer’s claim of damage. In accordance with
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`Fed. R. Civ. Proc. 8(b), Applicant must answer the notice of opposition
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`by specifically admitting or denying the allegations contained in
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`each paragraph. If Applicant is without sufficient knowledge or
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`information on which to form a belief as to the truth of any one of
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`the allegations, it should so state and this will have the effect of a
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`denial.
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`[Order, DKT #10 (emphasis added to that provided in the original order)].
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`Despite the explicit instructions, and despite multiple opportunities to file a rule compliant
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`answer, Applicant filed a Third noncompliant answer, which is the subject of Opposer’s pending
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`motion.
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`Now, in addition to its response to Opposer’s pending motion, Applicant files a Fourth
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`Answer. As an initial matter, this Fourth Answer is not compliant with Fed. R. Civ. P. 15 and
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`should be stricken. Rule 15 allows the amending of one’s answer once as a matter of course. Fed.
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`R. Civ. P. 15(a)(1). Applicant does not have consent from Opposer or leave from the Board for
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`its Fourth Answer.
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`Moreover, the Fourth Answer shows that Applicant is not serious. For example, in it’s
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`Third Answer [Dkt. #11], Applicant expressly admitted the allegations set forth in paragraph 8 of
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`Opposer’s Notice of Opposition as follows:
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`For the Opposer’s allegation that “Opposer’s Scout Marks have been
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`famous from a time prior to the filing date of the Application, from a time
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`prior to the claimed priority date, and from a time prior to Applicant’s first
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`use of Applicant’s Mark.” (Paragraph #36 from the Opposer’s Notice of
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`Opposition), Applicant admits this allegation.
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`[Third Answer, Dkt. #11, paragraph 8].
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`Despite this express admission made previously, in its newly filed Fourth Answer [Dkt. #14],
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`Applicant seeks to deny this very same allegation as follows:
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`For the Opposer’s allegation that “Opposer’s Scout Marks have been
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`famous from a time prior to the filing date of the Application, from a time
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`prior to the claimed priority date, and from a time prior to Applicant’s first
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`use of Applicant’s Mark.” (Paragraph #36 from the Opposer’s Notice of
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`Opposition), Applicant lacks knowledge or information sufficient to form
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`a belief about the truth of this allegation. The Applicant has insufficient
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`knowledge of any marks associated with the Opposer and how that has
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`affected its public notoriety nor when the Opposer initiated use of any
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`marks associated with the Opposer.
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`[Fourth Answer, Dkt. #14, paragraph 36].
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`Applicant contradicts itself even within the newly filed Fourth Answer. First, Applicant
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`denies the existence of 36 USC §30905 in paragraph 23 of the Notice of Opposition as follows :
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`For the Opposer’s allegation that “Congress, in 36 U.S.C. §30905, granted
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`Opposer “the exclusive right to use emblems, badges, descriptive or
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`designating marks, and words or phrases” that it adopts.“, (Paragraph #23
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`from the Opposer’s Notice of Opposition), Applicant lacks knowledge or
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`information sufficient to form a belief about the truth of this allegation.
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`[Fourth Answer, Dkt. #14, paragraph 23].
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`Yet, just two paragraphs later in paragraph 25 of the same document, when denying an
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`allegation of common law rights asserted by Opposer, Applicant contradicts himself
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`when stating the following:
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`Per 36 U.S.C. §30905, Opposer “has exclusive right to use emblems,
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`badges, descriptive or designating marks, and words or phrases the
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`corporation adopts”.
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`[Fourth Answer, Dkt. #14, paragraph 25].
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`Furthermore, as with its Third Answer, the Fourth answer also seeks to include
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`arguments and evidentiary matters, such as the results of Applicant’s alleged TESS
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`search, to dispute the merits of Opposer’s claims. The inclusion of such information is
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`improper and fails to apprise Opposer of which allegations will not be an issue at trial
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`and which allegations Applicant disputes.
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`Applicant continues to disregard the rules and wastes the time and resources of the Board
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`and Opposer. Applicant does not follow the rules and has now submitted four answers. In view
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`of Applicant’s purposeful disregard of the rules and the Board’s Order, Opposer respectfully
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`requests that the Board strike the Third and Fourth Answers and enter default judgment against
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`Applicant.
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`Dated: July 28, 2017
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`Respectfully submitted,
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`/gah/
`Gary A. Hecht
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`Melissa E. Scott
`Fox Rothschild LLP
`2000 Market Street, 20th Floor
`Philadelphia, PA 19103
`(215) 299-2416
`ATTORNEYS FOR OPPOSER
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`CERTIFICATE OF SERVICE
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`I, Deborah Fowler, hereby certify that, on this 28 day of July 2017, I served a true and
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`correct copy of the foregoing Opposer’s Reply In Support Of Its Motion To Strike Applicant’s
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`Third Answer And For Entry Of Default Judgment With Motion To Strike Applicant’s Newly
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`Filed Fourth Answer upon Applicant via email at the following address of record:
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`CCG Creative, LLC
`cgatling@ccgcreative.com
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`Dated: 28 July 2017
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`/ Deborah Fowler /
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