throbber
Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1133977
`
`Filing date:
`
`05/14/2021
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91268603
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Defendant
`Simple Design Ltd.
`
`NAZLY AILEEN BAYRAMOGLU
`BAYRAMOGLU LAW OFFICES LLC
`1540 WEST WARM SPRINGS ROAD, SUITE 100
`HENDERSON, NV 89014
`UNITED STATES
`Primary Email: tm@bayramoglu-legal.com
`Secondary Email(s): nazly@bayramoglu-legal.com, den-
`iz@bayramoglu-legal.com, gokalp@bayramoglu-legal.com, dav-
`id@bayramoglu-legal.com
`7024625973
`
`Motion to Dismiss - Rule 12(b)
`
`David Silver
`
`tm@bayramoglu-legal.com, david@bayramoglu-legal.com,
`nazly@bayramoglu-legal.com, deniz@bayramoglu-legal.com,
`gokalp@bayramoglu-legal.com
`
`/David Silver/
`
`05/14/2021
`
`Motion to Dismiss 20210514.pdf(147662 bytes )
`Exhibits for Motion to Dismiss.pdf(1223917 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`Cucufish Tech Co., Limited,
`
`Opposer,
`
`vs.
`
`Simple Design Ltd,
`
`
`Applicant.
`
`Opposition Proceeding No.: 91268603
`
`Serial No.: 88370242
`
`
`
`APPLICANT’S 12(b)(6) MOTION TO DISMISS
`
`Applicant Simple Design Ltd (“Simple Design”), through its counsel and pursuant to Rule
`
`12(b)(6) of the Federal Rules of Civil Procedure and 37 C.F.R. § 2.127, hereby moves that the
`
`Notice of Opposition of U.S. Application Serial No. 88370242, filed April 7, 2021, by Cucufish
`
`Tech Co., Limited (“Cucufish”), be dismissed in its entirety. For the reasons that follow, Simple
`
`Design respectfully submits that Cucufish’s Notice of Opposition fails to state a claim on which
`
`relief can be granted, and should therefore be dismissed with prejudice and without leave to amend.
`
`LEGAL STANDARD
`
`
`
`Applicant presently moves to dismiss the Notice of Opposition under Fed. R. Civ. P. Rule
`
`12(b)(6) for a failure to state a claim upon which relief can be granted. A motion to dismiss under
`
`Rule 12(b)(6) must be filed before, or concurrently with, the movant’s answer. See Fed. R. Civ. P.
`
`12(b); Hollowform Inc. v. Delma Aeh, 180 USPQ 284, 285 (TTAB 1973); TBMP § 503.01. Here,
`
`

`

`Applicant’s deadline to file a responsive pleading is May 17, 2021. Therefore, this motion is
`
`timely.
`
`
`
`A motion to dismiss for failure to state a claim upon which relief can be granted is a test
`
`regarding the legal sufficiency of a complaint. See Advanced Cardiovascular Systems Inc. v.
`
`SciMed Life Systems Inc., 988 F.2d 1157, 26 USPQ2d 1038, 1041 (Fed. Cir. 1993); TBMP §
`
`503.02. In order to withstand a motion to dismiss, the complaint needs to allege facts that would,
`
`if proved, establish that the plaintiff is entitled to the relief sought. This includes the requirement
`
`that (1) the plaintiff has standing to maintain the proceeding and (2) for an opposition proceeding,
`
`that a valid ground exists for denying the registration sought. See Young v. AGB Corp., 152 F.3d
`
`1377, 47 USPQ2d 1752, 1754 (Fed. Cir. 1998); TBMP § 503.02.
`
`
`
`To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
`
`on its face.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007); Ashcroft v. Iqbal, 556
`
`U.S. 662, 678 (2009); TBMP § 503.02. In particular, Opposer must allege well-pleaded factual
`
`matter and more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere
`
`conclusory statements.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
`
`at 555); TBMP § 503.02.
`
`
`
`For the reasons set forth below, Opposer has failed to adequately state a claim for relief by
`
`providing mere conclusory statements that Opposer knew to be false, with the sole purpose of
`
`harassing Applicant and increasing Applicant’s litigation costs.
`
`ARGUMENT
`
`
`
`Cucufish only provides a single ground for the present Opposition, namely, that Simple
`
`Design is not rightful owner of U.S. Application Serial No. 88370242. Cucufish’s entire argument
`
`boils down to Cucufish’s assertion that Simple Design is not the rightful owner of the mark because
`
`

`

`the specimen included evidence of use by InShot Inc. Cucufish makes the allegations in Paragraph
`
`23 of the Opposition that based on Cucufish’s information and belief, “InShot Inc. and [Simple
`
`Design] are two distinct companies. No valid assignment or license agreement for the V Logo had
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`been executed or recorded between [Simple Design] and InShot Inc.” Despite Cucufish’s
`
`assertions that the allegations in Paragraph 23 of the Opposition were made based on Cucufish’s
`
`information and belief, Cucufish conveniently leaves out the fact that Cucufish has had ample
`
`opportunity to discover this exact information in multiple prior and ongoing proceedings between
`
`these same parties.
`
`Cucufish Tech Co., Limited (“Cucufish”) first initiated Opposition Proceeding No.
`
`91264372 against Simple Design Ltd. (“Simple Design”)’s Trademark Application No. 88834471
`
`on August 21, 2020. Attached as Exhibit 1 is the docket for Opposition Proceeding No. 91264372.
`
`Simple Design filed its Answer on November 25, 2020 that specifically contains an affirmative
`
`defense asserting that Simple Design is the owner of Trademark Application No. 88370242.
`
`During the initial disclosures, Simple Design specifically lists under its FRCP 26(a)(1)(A)(ii)
`
`disclosures as item three: “[Simple Design]’s records for the use of Application No. 88370242.”
`
`Attached as Exhibit 2 are Simple Design’s Initial Disclosures for Opposition Proceeding No.
`
`91264372. Cucufish has neglected to request discovery in Opposition Proceeding No. 91264372
`
`as of this date despite ample opportunity to do so.
`
`
`
`Simple Design initiated Opposition Proceeding No. 91267266 on January 26, 2021
`
`following up on its affirmative defense in Cucufish’s prior opposition. Attached as Exhibit 3 is
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`the docket for Opposition Proceeding No. 91267266. Cucufish elected to file an answer rather than
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`file a motion to dismiss for lack of standing opposing Simple Design’s ownership of the 88370242
`
`mark, which is the basis of this Opposition. Once again, Simple Design provided its initial
`
`

`

`disclosures specifically stating that it will provide documents establishing its use of the 88370242
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`mark. Attached as Exhibit 4 is Simple Design’s Initial Disclosures for Opposition Proceeding No.
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`91267266. Once again, Cucufish has neglected to request discovery in Opposition Proceeding No.
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`91267266 as of this date.
`
`
`
`Had Cucufish decided to request discovery or attempt to make any request for Simple
`
`Design’s evidence of its use of the 88370242 mark in either proceeding, Simple Design would
`
`have easily provided the non-exclusive license between itself and InShot Inc. that establishes
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`InShot’s ability to use Simple Design’s mark. Attached as Exhibit 5 is the license agreement
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`between Simple Design and InShot Inc. Cucufish’s entire Opposition in this present proceeding is
`
`based upon InShot’s use of the 88370242 mark owned by Simple Design, yet any amount of
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`discovery in any of the other proceedings would have allowed Cucufish to easily discern this
`
`information.
`
`
`
`The concept of willful blindness is one that has been applied throughout numerous legal
`
`topics, including intellectual property. In applying the doctrine of willful blindness to a civil case
`
`involving induced patent infringement, the Supreme Court of the United States explains that
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`“[w]hile the Courts of Appeals articulate the doctrine of willful blindness in slightly different
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`ways, all appear to agree on two basic requirements: (1) The defendant must subjectively believe
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`that there is a high probability that a fact exists and (2) the defendant must take deliberate actions
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`to avoid learning of that fact.” See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769
`
`(2011). While not a defendant in this matter, Cucufish should be held to the same knowledge
`
`standards when making allegations “on information and belief.”
`
`
`
`Here, Cucufish was provided with information in multiple prior proceedings in which
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`Simple Design claimed ownership of the 88370242 mark, including multiple initial disclosures,
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`

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`an affirmative defense, and a separate opposition proceeding all stating as such. Therefore,
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`Cucufish must have believed that there is a high probability that information is available regarding
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`Simple Design’s ownership of the 88370242 mark. Despite all of the knowledge Cucufish has
`
`regarding the existence of information proving Simple Design’s ownership of the 88370242 mark,
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`Cucufish deliberately avoided taking any discovery and failed to file any prior motion challenging
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`Simple Design’s ownership in which the information would be revealed. Instead, Cucufish decided
`
`to file this baseless Opposition based on its “information and belief” while deliberately avoiding
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`the information that would prove its “information and belief” to be false. Therefore, Cucufish
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`should not be permitted to use its willful blindness to Simple Design’s ownership of the 88370242
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`mark as the basis for its sole ground in this Opposition.
`
`
`
`The myriad of allegations regarding Cucufish’s creation and use of its own mark only
`
`provide an argument for standing and provide no evidence related to Cucufish’s only ground for
`
`its Opposition. Cucufish attempts to distract the Board by providing numerous exhibits, none of
`
`which support its allegations relating to Simple Design’s ownership of the 88370242 mark.
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`Therefore, Cucufish’s allegations are nothing more than threadbare recitals of the elements of a
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`claim that Simple Design is not the rightful owner of the 88370242 mark, supported only by mere
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`conclusory statements, and should be dismissed.
`
`Opposer’s Improper Purpose for Filing the Present Opposition
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`By presenting the Board with the Notice of Opposition, Cucufish and Cucufish’s counsel,
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`Jie (Lisa) Li, represented that this Opposition proceeding is not being brought for an improper
`
`purpose and that the factual contentions have or are likely to have evidentiary support. None of
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`this is true. Cucufish and Cucufish’s counsel filed this Opposition for the sole purpose of harassing
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`

`

`Simple Design, preventing Simple Design from registering its mark, and increasing Simple
`
`Design’s litigation costs based on allegations that have no evidentiary support.
`
`When determining whether a filing with the Board was for an improper purpose, the Board
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`has the ability to look at the party’s conduct in other Board proceedings as well as consider
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`previously filed extensions of time to oppose the mark. See NSM Resources Corp. v. Microsoft
`
`Corp., 113 USPQ2d 1029, 1038 (TTAB 2014); Central Manufacturing Inc. v. Third Millennium
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`Technology Inc., 61 USPQ2d 1210, 1213 (TTAB 2001). Here, in addition to Cucufish’s failure to
`
`obtain readily available information in other Board proceedings regarding Simple Design’s
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`ownership of the 88370242 mark, Cucufish also previously filed two extensions of time to oppose
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`the 88370242 mark. The first extension for 30 days was filed on January 6, 2021 and the second
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`extension for an additional 60 days was filed on February 4, 2021. Attached as Exhibit 6 is the
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`docket history showing the extensions of time to oppose the 88370242 mark. Therefore, either
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`Cucufish had the belief that Simple Design was not the rightful owner of the 88370242 mark back
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`in early January of 2021 or Cucufish merely filed the extension of time to oppose the 88370242
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`mark solely to delay Simple Design’s registration of its mark without valid justification. If
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`Cucufish had the belief that Simple Design was not the rightful owner of the 88370242 mark back
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`in early January when the first extension of time to oppose was filed, then it is curious as to why
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`Cucufish did not make such an argument in a motion to dismiss following Simple Design’s own
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`Opposition filed less than a month later at the end of January as shown in Exhibit 3. The
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`explanation is that Cucufish did not have a valid ground for the opposition and merely filed this
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`present Opposition to continue to prevent Simple Design’s registration of its mark as the extension
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`of time was running out.
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`

`

`
`
`The marks discussed above were all connected based on claims of likelihood of confusion
`
`and priority. However, Simple Design noticed that Cucufish had other, unrelated marks that were
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`also likely to cause confusion with entirely separate marks in which Simple Design had priority.
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`Simple Design filed Opposition Proceeding Nos. 91268320, 91268332, and 91268333 for marks
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`entirely unrelated to Simple Design’s 88370242 mark and Cucufish’s 90091943 mark that are the
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`subject of this present Opposition. These additional oppositions were all filed on March 23, 2021.
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`Attached as Exhibit 7 are the dockets for Opposition Proceeding Nos. 91268320, 91268332, and
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`91268333.
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`
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`In retaliation, Cucufish filed the present Opposition on April 7, 2021 despite having no
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`legitimate grounds for the Opposition. Cucufish’s sole purpose for filing the present Opposition is
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`to harass Simple Design in retaliation for Simple Design’s filing of legitimate oppositions and to
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`further prevent Simple Design’s registration of its 88370242 mark. The filing of this present
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`Opposition only unnecessarily increases the litigation costs for Simple Design without any proper
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`justification.
`
`
`
`Furthermore, the factual contentions do not have evidentiary support and will not have
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`evidentiary support following discovery. Cucufish has had multiple opportunities to discover the
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`very information that is relevant to its alleged ground for this opposition and have consciously
`
`avoided discovering such information in the prior proceedings. The license agreement attached as
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`Exhibit 5 clearly contradicts Cucufish’s allegations. Cucufish has had a reasonable opportunity to
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`uncover this information, but has repeatedly and intentionally failed to do so. Cucufish’s failure to
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`oppose Simple Design’s standing in prior proceedings and repeated failure to conduct any type of
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`discovery creates a willful blindness to readily available information that would have prevented
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`this Opposition in its entirety.
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`

`

`To the extent the Board believes there was any sanctionable conduct in filing the
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`Opposition, the Board may impose any sanction it believes to be appropriate on its own initiative
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`following an order to show cause and an opportunity for Cucufish to be heard. See Giant Food,
`
`Inc. v. Standard Terry Mills, Inc., 231 USPQ 626, 634 n.19 (TTAB 1986); TBMP 527.02.
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`CONCLUSION
`
`Based on the foregoing, the TTAB should dismiss this Opposition in its entirety and allow
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`Simple Design’s 88370242 mark to proceed to registration as the sole ground within Cucufish’s
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`Notice of Opposition is factually deficient despite Cucufish’s ample opportunity to uncover the
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`relevant information. No amendment or revisions will be able to remedy Cucufish’s failure to state
`
`a claim upon which relief can be granted. Cucufish’s filing of this Opposition was purely in a
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`retaliatory nature to harass Simple Design, prevent Simple Design’s registration of its 88370242
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`mark, and increase Simple Design’s litigation costs.
`
`
`
`Dated: May 14, 2021
`
`
`
`
`Respectfully Submitted,
`
`By:
`
`/s/ David Silver
`DAVID SILVER, ESQ.
`(California Bar No. 312445)
`david@bayramoglu-legal.com
`1540 West Warm Springs Road Suite 100
`Henderson, Nevada 89014
`Attorney for Applicant
`Simple Design Ltd
`
`

`

`
`
`I, David Silver, hereby certified that a true correct copy of the foregoing APPLICANT’S
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`CERTIFICATE OF SERVICE
`
`12(b)(6) MOTION TO DISMISS was served upon Cucufish Tech Co., Limited by email on this
`
`day of May 14, 2021 at the following address:
`
`Jie (Lisa) Li
`GREENBERG TRAURIG, LLP
`4 Embarcadero Center, Suite 3000
`San Francisco, CA 94111
`lil@gtlaw.com; gtipmail@gtlaw.com; lanej@gtlaw.com; zuluetai@gtlaw.com
`
`
`
`
`
`
`By:
`
`/s/ David Silver
`DAVID SILVER, ESQ.
`(California Bar No. 312445)
`david@bayramoglu-legal.com
`1540 West Warm Springs Road, Suite 100
`Henderson, Nevada 89014
`Attorney for Applicant
`Simple Design Ltd
`
`

`

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`Exhibit “1”
`Exhibit “1”
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`Exhibit “1”
`Exhibit “1”
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`5/13/2021
`
`USPTO TTABVUE. Trademark Trial and Appeal Board Inquiry System
`United States Patent and Trademark Office
`Home|Site Index|Search|Guides|Contacts|eBusiness|eBiz alerts|News|Help
`
`TTABVUE. Trademark Trial and Appeal Board Inquiry System
`
`v2.1
`
`Opposition
`
`Number: 91264372
`Status: Suspended
`General Contact Number: 571-272-8500
`Interlocutory Attorney: LAWRENCE (LARRY) T STANLEY
`Paralegal Name: KELLY M YOUNG
`
`Filing Date: 08/21/2020
`Status Date: 02/01/2021
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`Defendant
`
`Name: Simple Design Ltd
`Correspondence: DAVID SILVER
`
`BAYRAMOGLU LAW OFFICES LLC
`
`1540 WEST WARM SPRINGS ROAD SUITE 100
`
`HENDERSON, NV 89014
`
`UNITED STATES
`
`tm@bayramoglu-legal.com, nazly@bayramoglu-legal.com, david@bayramoglu-
`legal.com, deniz@bayramoglu-legal.com, gokalp@bayramoglu-legal.com
`
`Phone: 702-462-5973
`
`
`
`Serial #: 88834471
`Application Status: Opposition Pending
`Plaintiff
`
`Application File
`
`Assignment
`
`Name: Cucufish Tech Co., Limited
`Correspondence: JIE (LISA) LI
`
`GREENBERG TRAURIG, LLP
`
`4 EMBARCADERO CENTER, SUITE 3000
`
`SAN FRANCISCO, CA 94111
`
`UNITED STATES
`
`lil@gtlaw.com, gtipmail@gtlaw.com, lanej@gtlaw.com
`
`Phone: 415-655-1255
`
`
`
`Application File
`
`Serial #: 90091943
`Application Status: Opposition Pending
`Mark: N
`Prosecution History
`# Date
`History Text
`10 02/01/2021
`SUSPENDED
`9
`12/28/2020
`STIP TO SUSP PEND SETTL NEGOTIATIONS
`8
`11/25/2020
`ANSWER
`7
`11/04/2020
`PROCEEDINGS RESUMED
`6
`10/15/2020
`P MOT TO AMEND PLEADING/AMENDED PLEADING
`5
`10/07/2020
`SUSP PEND DISP OF OUTSTNDNG MOT
`4
`09/25/2020
`D MOT TO DISMISS: FRCP 12(B)
`3
`08/21/2020
`INSTITUTED
`2
`08/21/2020
`NOTICE AND TRIAL DATES SENT; ANSWER DUE:
`1
`08/21/2020
`FILED AND FEE
`
`Assignment
`
`Due Date
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`09/30/2020
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`Exhibit “2”
`Exhibit “2”
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`Exhibit “2”
`Exhibit “2”
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`Cucufish Tech Co., Limited,
`
`Opposer,
`
`vs.
`
`Simple Design Ltd,
`
`
`Applicant.
`
`Opposition Proceeding No.: 91264372
`
`Serial No.: 88834471
`
`Pursuant to Federal Rules of Civil Procedure Rule 26(a)(1) and the Board’s scheduling
`
`Order, Applicant Simple Design Ltd. (hereinafter “Applicant”) makes the following initial
`
`disclosures:
`
`A. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(i)
`
`The following individuals may have discoverable information that Applicant may use to
`
`support its claims. Applicant reserves the right to amend or supplement these disclosures, including
`
`as provided by Fed. R. Civ. P. 26(e). The following disclosures do not include persons whose
`
`testimony is likely to be used solely for impeachment, rebuttal, or expert witness testimony, who
`
`will be disclosed in accordance with the schedule set by the Court:
`
`1. Zeng Li
`
`This person is expected to provide testimony regarding the creation, use, and marketing of
`
`Application No. 88834471 (“Applicant’s Mark”), of Applicant’s prior similar marks, and
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`specifically of Applicant’s Application No. 88370242.
`
`This witness is to be contacted through Applicant’s Counsel.
`
`

`

`2. Person Most Knowledgeable regarding the creation of, the application for, and the use
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`of Application No. 90091943 (“Opposer’s Mark”).
`
`This person (or persons if more than one person is identified) is expected to provide
`
`testimony regarding the creation of, the application for, and the use of Opposer’s Mark.
`
`Applicant expects to contact said witness(es) through Opposer’s attorney of record.
`
`Applicant reserves the right to amend this with the name and address as discovery continues and
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`new witnesses are discovered.
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`3. Person Most Knowledgeable
`
`regarding Opposer’s
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`developer
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`account
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`Polaris.view99@gmail.com.
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`This person (or persons if more than one person is identified) is expected to provide
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`testimony regarding activity of the developer account Polaris.view99@gmail.com with
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`Google Play and any other online platform and complaints made against said developer
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`account.
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`Plaintiff expects to contact said witness(es) through Opposer’s attorney of record.
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`Applicant reserves the right to amend this with the name and address as discovery continues and
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`new witnesses are discovered.
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`B. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(ii)
`
`Pursuant to FRCP 26(a)(1)(A)(ii) and TBMP § 401.02, Applicant hereby describes the
`
`categories of documents, electronically stored information, and/or tangible things that are in
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`the possession, custody or control of Applicant or Applicant’s counsel and that Applicant may
`
`use to support its claims. Applicant identifies the following categories of documents or things:
`
`1. Applicant’s records for the use of Applicant’s Mark in the United States.
`
`2. Applicant’s records for the use of prior similar marks utilizing the same commercial
`
`

`

`impression as Applicant’s Mark.
`
`3. Applicant’s records for the use of Application No. 88370242.
`
`4. Additional documents Applicant intends to use in supporting its claims are in the
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`possession of Opposer. Therefore, documents that are in the possession, custody and
`
`control of Opposer cannot be presently identified or produced. These categories include
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`but are not limited to the creation, marketing or marketing strategy, and usage of or
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`intent to use Opposer’s Mark.
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`Discovery is ongoing, and these documents may be supplemented pursuant to Rule 26 should
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`additional documents or issues be obtained or discovered.
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`C. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(iii)
`
`Applicant denies that Opposer would be damaged by registration of Applicant’s Mark.
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`Applicant seeks a dismissal and denial of the opposition to the registration of Applicant’s Mark.
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`Discovery is ongoing, and this disclosure may be supplemented pursuant to Rule 26 should
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`additional documents and information be obtained or discovered.
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`D. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(iv)
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`Applicant is not aware of any insurance policy that would cover them in the pending
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`litigation.
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`E. Reservation of Rights
`
`Applicant reserves the right to call at trial any and all other parties or witnesses to this action,
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`whether or not disclosed or identified by any other party as a lay or expert witness, including all
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`witnesses discovered through ongoing discovery procedures.
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`Applicant reserves the right to call any and all lay and expert witnesses designated by any
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`other party.
`
`

`

`Applicant reserves the right to call additional witnesses as may be identified during the course
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`of discovery. Applicant further reserves the right to identify additional relevant documents as may
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`be identified and found during the course of discovery.
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`Applicant reserves the right to name additional expert witnesses as necessary to rebut and
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`address testimony by Opposer’s expert(s). Applicant further reserves the right to add or substitute
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`other experts for any experts hereafter disclosed due to scheduling or unavailability concerns or
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`new issues raised by any party during the course of discovery.
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`The above statements indicating the areas in which potential witnesses have knowledge
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`may not be complete descriptions of each such witness’s knowledge. Applicant hereby reserves
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`the right to offer all relevant testimony from witnesses called to testify at trial.
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`
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`Dated: March 4, 2021
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`Respectfully Submitted,
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`By:
`
`/s/ David Silver
`DAVID SILVER, ESQ.
`(California Bar No. 312445)
`david@bayramoglu-legal.com
`1540 West Warm Springs Road Suite 100
`Henderson, Nevada 89014
`Attorney for Applicant
`Simple Design Ltd
`
`
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`

`

`
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`I, David Silver, hereby certified that a true correct copy of the foregoing APPLICANT’S
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`CERTIFICATE OF SERVICE
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`INITIAL DISCLOSURES was served upon Opposer by email on this day of March 4, 2021 at
`
`the following address:
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`Jie (Lisa) Li
`GREENBERG TRAURIG, LLP
`4 Embarcadero Center, Suite 3000
`San Francisco, CA 94111
`lil@gtlaw.com; gtipmail@gtlaw.com; lanej@gtlaw.com
`
`
`
`
`
`
`By:
`
`/s/ David Silver
`DAVID SILVER, ESQ.
`(California Bar No. 312445)
`david@bayramoglu-legal.com
`1540 West Warm Springs Road, Suite 100
`Henderson, Nevada 89014
`Attorney for Applicant
`Simple Design Ltd
`
`

`

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`Exhibit “3”
`Exhibit “3”
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`Exhibit “3”
`Exhibit “3”
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`5/13/2021
`
`USPTO TTABVUE. Trademark Trial and Appeal Board Inquiry System
`United States Patent and Trademark Office
`Home|Site Index|Search|Guides|Contacts|eBusiness|eBiz alerts|News|Help
`
`TTABVUE. Trademark Trial and Appeal Board Inquiry System
`
`v2.1
`
`Opposition
`
`Number: 91267266
`Status: Pending
`General Contact Number: 571-272-8500
`Interlocutory Attorney: JENNIFER KRISP
`Paralegal Name: AMY L MATELSKI
`
`Filing Date: 01/26/2021
`Status Date: 01/26/2021
`
`Defendant
`
`Name: Cucufish Tech Co., Limited
`Correspondence: JIE (LISA) LI
`
`GREENBERG TRAURIG, LLP
`
`4 EMBARCADERO CENTER, SUITE 3000
`
`SAN FRANCISCO, CA 94111
`
`UNITED STATES
`
`lil@gtlaw.com, gtipmail@gtlaw.com, lanej@gtlaw.com, zuluetai@gtlaw.com
`
`Phone: 415-655-1255
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`
`
`Serial #: 90091943
`Application Status: Opposition Pending
`Mark: N
`
`Plaintiff
`
`Application File
`
`Assignment
`
`Name: Simple Design Ltd.
`Correspondence: NAZLY AILEEN BAYRAMOGLU
`
`BAYRAMOGLU LAW OFFICES LLC
`
`1540 WEST WARM SPRINGS ROAD, SUITE 100
`
`HENDERSON, NV 89014
`
`UNITED STATES
`
`tm@bayramoglu-legal.com, nazly@bayramoglu-legal.com, david@bayramoglu-
`legal.com, deniz@bayramoglu-legal.com
`
`Phone: 702-462-5973
`
`
`
`Application File
`
`Serial #: 88370242
`Application Status: Opposition Pending
`Mark: V
`Prosecution History
`# Date
`History Text
`4 03/05/2021
`ANSWER
`3 01/26/2021
`INSTITUTED
`2 01/26/2021
`NOTICE AND TRIAL DATES SENT; ANSWER DUE:
`1 01/26/2021
`FILED AND FEE
`
`Results as of 05/13/2021 03:18 PM
`
`Search:
`
`Assignment
`
`Due Date
`
`03/07/2021
`
`| .HOME | INDEX| SEARCH | eBUSINESS | CONTACT US | PRIVACY POLICY
`
`https://ttabvue.uspto.gov/ttabvue/v?qt=adv&procstatus=All&pno=91267266&propno=&qs=&propnameop=&propname=&pop=&pn=&pop2=&pn2=&cop… 1/1
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`Exhibit “4”
`Exhibit “4”
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`Exhibit “4”
`Exhibit “4”
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Simple Design Ltd,
`
`
`Opposer,
`
`
`vs.
`
`Cucufish Tech Co., Limited,
`
`
`Applicant.
`
`Opposition Proceeding No.: 91267266
`
`Serial No.: 90091943
`
`Pursuant to Federal Rules of Civil Procedure Rule 26(a)(1) and the Board’s scheduling
`
`Order, Opposer, Simple Design Ltd., (“Opposer”) makes the following initial disclosures:
`
`A. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(i)
`
`The following individuals may have discoverable information that Opposer may use to
`
`support its claims. Opposer reserves the right to amend or supplement these disclosures, including as
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`provided by Fed. R. Civ. P. 26(e). The following disclosures do not include persons whose
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`testimony is likely to be used solely for impeachment, rebuttal, or expert witness testimony, who
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`will be disclosed in accordance with the schedule set by the Court:
`
`1. Zeng Li
`
`This person is expected to provide testimony regarding the creation and use of Application
`
`No. 88370242 (“Opposer’s Mark”) and of Opposer’s prior similar marks.
`
`This witness is to be contacted through Opposer’s Counsel.
`
`

`

`2. Person Most Knowledgeable regarding the creation of, the application for, and the use
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`of Application No. 90091943 (“Applicant’s Mark”).
`
`This person (or persons if more than one person is identified) is expected to provide
`
`testimony regarding the creation of, the application for, and the use of Applicant’s Mark.
`
`Opposer expects to contact said witness(es) through Applicant’s attorney of record.
`
`Opposer reserves the right to amend this with the name and address as discovery continues and
`
`new witnesses are discovered.
`
`3. Person Most Knowledgeable
`
`regarding Applicant’s developer
`
`account
`
`Polaris.view99@gmail.com.
`
`This person (or persons if more than one person is identified) is expected to provide
`
`testimony regarding activity of the developer account Polaris.view99@gmail.com with
`
`Google Play and any other online platform and complaints made against said developer
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`account.
`
`Plaintiff expects to contact said witness(es) through Applicant’s attorney of record.
`
`Opposer reserves the right to amend this with the name and address as discovery continues and
`
`new witnesses are discovered.
`
`B. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(ii)
`
`
`
`
`
`Pursuant to FRCP 26(a)(1)(A)(ii) and TBMP § 401.02, Opposer hereby describes the
`
`categories of documents, electronically stored information, and/or tangible things that are in
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`the possession, custody or control of Opposer or Opposer’s counsel and that Opposer may use
`
`to support its claims. Opposer identifies the following categories of documents or things:
`
`1. Opposer’s records for the use of Opposer’s Mark in the United States.
`
`2. Opposer’s records for the use of prior similar marks utilizing the same commercial
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`

`

`impression as Opposer’s Mark.
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`3. Opposer’s records for the use of Application No. 88370242.
`
`4. Additional documents Opposer intends to use in supporting its claims are in the
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`possession of Applicant. Therefore, documents that are in the possession, custody and
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`control of Applicant cannot be presently identified or produced. These categories include
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`but are not limited to the creation, marketing or marketing strategy, and usage of or
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`intent to use Applicant’s Mark.
`
`Discovery is ongoing, and these documents may be supplemented pursuant to Rule 26 should
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`additional documents or issues be obtained or discovered.
`
`C. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(iii)
`
`
`
`
`
`
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`Opposer claims that Opposer is being damaged by the registration of Applicant’s Mark. Rather
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`than seek monetary damages, Opposer seeks an Opposition of Application No. 90091943 and an
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`order preventing Applicant from seeking further registration of any variations of Applicant’s Mark
`
`or similar marks thereto.
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`Discovery is ongoing, and this disclosure may be supplemented pursuant to Rule 26 should
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`additional documents and information be obtained or discovered.
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`D. Disclosures under Fed. R. Civ. P. 26(a)(1)(A)(iv)
`
`
`
`
`
`Opposer is not aware of any insurance policy that would cover them in the pending litigation.
`
`E. Reservation of Rights
`
`Opposer reserves the right to call at trial any and all other parties or witnesses to this action,
`
`whether or not disclosed or identified by any other party as a lay or expert witness, including all
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`witnesses discovered through ongoing discovery procedures.
`
`Opposer reserves the right to call any and all lay and expert witnesses designated by any other
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`party.
`
`

`

`Opposer reserves the right to call additional witnesses as may be identified during the course
`
`of discovery. Opposer further reserves the right to identify additional relevant documents as may
`
`be identified and found during the course of discovery.
`
`Opposer reserves the right to name additional expert witnesses as necessary to rebut and
`
`address testimony by Applicant’s expert(s). Opposer further reserves the right to add or substitute
`
`other experts for any experts hereafter disclosed due to scheduling or unavailability concerns or
`
`new issues raised by any party during the course of discovery.
`
`The above statements indicating the areas in which potential witnesses have knowledge
`
`may not be complete descriptions of each such witness’s knowledge. Opposer hereby reserves the
`
`right to offer all relevant testimony from witnesses called to testify at trial.
`
`Dated: April 21, 2021
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`Respectfully Submitted,
`
`/s/ Nazly Aileen Bayramoglu
`NAZLY AILEEN BAYRAMOGLU
`(NM Bar No. 151569)
`nazly@bayramoglu-legal.com
`1540 West Warm Springs Road Suite 100
`Henderson, Nevada 89014
`Attorney for Opposer
`Simple Design Ltd
`

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