Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1160140
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`Filing date:
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`09/16/2021
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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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`91265543
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`Party
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`Correspondence
`Address
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`Plaintiff
`Padraic McFreen
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`PADRAIC MCFREEN
`13357 DUMBARTON ST
`CARMEL, IN 46032
`UNITED STATES
`Primary Email: pmcfreen@gmail.com
`Secondary Email(s): padraic.mcfreen@gmail.com
`281-736-0510
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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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`Other Motions/Submissions
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`Padraic McFreen
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`pmcfreen@gmail.com
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`/Padraic McFreen/
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`09/16/2021
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`McFreen YUKK Motion To Reconsider re. Denial of MTD_91265543_20210916
`.pdf(114039 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`YukBGone, LLC,
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`Padraic McFreen,
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`Petitioner,
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` Opposition No. 91265543 (Parent)
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`Respondent.
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`RESPONDENT’S MOTION TO RECONSIDER BOARD’S DENIAL OF
`RESPONDENT’S MOTION TO DISMISS PETITIONER’S
`COUNTERCLAIMS FOR CANCELLATION OF U.S. REGISTRATIONS
`NOS. 4,787,253; 4,787,160; AND 4,538,617
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`Pursuant to Federal Rules of Civil Procedure, Trademark Federal Statute and Rules
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`§ 2.127(b), Trademark Trial and Appeal Board Manual of Procedure, standing precedent
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`and Federal Rules of Evidence, Padraic McFreen (“Respondent”), hereby moves this
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`Trademark Trial and Appeal Board (“Board”) to reconsider its August 27, 2021 order
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`denying Respondent’s Motion To Dismiss Petitioner’s Counterclaims For Cancellation Of
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`US Registrations Nos. 4,787,253; 4,787,160; And 4,538,617 (“Motion”). This Board should
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`modify and reverse its decision and order.
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`In its order, the Board relies on Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In pertinent part, the Board
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`simplifies the holding by stating “…a complaint must contain ‘sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face.’” This Board further
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`states “[a] claim has facial plausibility when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`1 
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` Opposition No. 91265543 
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`alleged.”1 Respondent respectfully disagrees with this Board’s simplification of the
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`standard reinforced in the holding upon which it has relied.
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`The Board mistakes the court’s holding and prejudices Respondent by mistakingly
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`identifying conclusory statements as well-pled factual content within Petitioner’s pleadings
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`where no factual content exists.
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`The court makes it clear that “…Iqbal must plead sufficient factual matter to show
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`that petitioners adopted and implemented the detention policies at issue not for a neutral,
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`investigative reason, but for the purpose of discriminating on account of race, religion, or
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`natural origin.” This is a requirement for specific factual content.
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`The court went further by stating, “…[u]nder Federal Rule of Civil Procedure 8(a)(2),
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`a complaint must contain a ‘short and plain statement of the claim showing that the
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`pleader is entitled to relief’…detailed factual allegations are not required.” Further stating
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`“…the Rule does call for sufficient factual matter, accepted as true, to ‘state a claim to relief
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`that is plausible on its face.” Twombly 550 U.S., at 570.
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`Though the Board here acknowledges the application of the court’s holding, it
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`ignores the court’s position concerning “threadbare recitals of a cause of action’s elements,
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`supported by mere conclusory statements.” Id., at 555.
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`The court goes much further. Specifically, the Board is advised when “…considering
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`a motion to dismiss [it] may begin by identifying allegations that, because they are mere
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`conclusions, are not entitled to the assumption of truth.” The court unequivocally states
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`“[w]hile conclusions can provide the complaint’s framework, they must be supported by
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`factual allegations. When there are well-pleaded factual allegations, a court should
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`assume their veracity and then determine whether they plausibly give rise to an
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`entitlement to relief.”
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`1 18 TTABVUE 3
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`2 
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` Opposition No. 91265543 
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`In its reliance on Twombly, the Board should adopt the holding in its entirety, and
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`not filter or dilute the brilliance of the court’s decision. In its order, the Board recites
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`Petitioner’s pleading in pertinent part as “…[r]egistrant is not using and has no intent to
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`resume use…”
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`The Board further recites Petitioner’s pleading in pertinent part as “…[r]egistrant
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`has not made use of Registrant’s Marks…” The Board has not identified any “factual
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`content” within the conclusory statements contained within Petitioner’s pleadings.2
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`Petitioner’s pleadings are not to be afforded the assumption of truth available to
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`those having been well-pled. There are no facts within the pleadings and the Board did not
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`point to a single fact in its order.
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`The Board should reverse its order and hold Petitioner to the standard established
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`by the very holding it and Respondent rely. Petitioner’s pleadings are no more than
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`threadbare conclusory statements and as a threshold matter, fail the Twombly test.
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`For the forgoing reasons, Respondent respectfully requests the Board reconsider its
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`denial and reverse its order denying Respondent’s Motion.
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`Submitted this 16th Day of September, 2021 
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`/s /Padraic McFreen
`Padraic McFreen, Respondent
`13357 Dumbarton Street
`Carmel, IN 46032
`pmcfreen@gmail.com
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`3 
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`2 18 TTABVUE 7
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` Opposition No. 91265543
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing Respondent’s
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`Motion To Reconsider Board’s Denial of Respondent’s Motion To Dismiss Petitioner’s
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`Counterclaims For Cancelation Of US Registrations Nos.4,787,253; 4,787,160; And
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`4,538,617 has been served on Matthew Saunders, Saunders & Silverstein LLP., by
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`emailing said copy on this 16th day of September, 2021, to: trademarks@sandsip.com,
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`msaunders@sandsip.com.
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`__________________________
`/Padraic McFreen/
`Padraic McFreen, Petitioner
`13357 Dumbarton Street
`Carmel, IN 46032
`pmcfreen@gmail.com
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`4 
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