Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1144193
`
`Filing date:
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`07/01/2021
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91268603
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
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`Filer's email
`
`Signature
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`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, den-
`iz@bayramoglu-legal.com, nazly@bayramoglu-legal.com,
`gokalp@bayramoglu-legal.com
`
`/David Silver/
`
`07/01/2021
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`Renewed Motion to Dismiss 20210701.pdf(306756 bytes )
`Exhibits for Motion to Dismiss.pdf(1223917 bytes )
`Frank Liu Decl. for Renewed Motion to Dismiss-signed by Frank.pdf(302772
`bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
`
`Cucufish Tech Co., Limited,
`
`Opposer,
`
`vs.
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`Simple Design Ltd,
`
`
`Applicant.
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`Opposition Proceeding No.: 91268603
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`Serial No.: 88370242
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`APPLICANT’S RENEWED 12(b)(6) MOTION TO DISMISS
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`Applicant Simple Design Ltd (“Simple Design”), through its counsel and pursuant to Rule
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`12(b)(6) of the Federal Rules of Civil Procedure and 37 C.F.R. § 2.127, hereby moves that the
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`First Amended Notice of Opposition of U.S. Application Serial No. 88370242, filed June 2, 2021,
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`by Cucufish Tech Co., Limited (“Cucufish”), be dismissed in its entirety. For the reasons that
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`follow, Simple Design respectfully submits that Cucufish’s First Amended Notice of Opposition
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`fails to state a claim on which relief can be granted, and should therefore be dismissed with
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`prejudice and without leave to amend.
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`LEGAL STANDARD
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`
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`Applicant presently moves to dismiss the First Amended Notice of Opposition under Fed.
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`R. Civ. P. Rule 12(b)(6) for a failure to state a claim upon which relief can be granted. A motion
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`to dismiss under Rule 12(b)(6) must be filed before, or concurrently with, the movant’s answer.
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`See Fed. R. Civ. P. 12(b); Hollowform Inc. v. Delma Aeh, 180 USPQ 284, 285 (TTAB 1973);
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`

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`TBMP § 503.01. Here, Applicant’s deadline to file a responsive pleading is July 5, 2021.
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`Therefore, this motion is timely.
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`
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`A motion to dismiss for failure to state a claim upon which relief can be granted is a test
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`regarding the legal sufficiency of a complaint. See Advanced Cardiovascular Systems Inc. v.
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`SciMed Life Systems Inc., 988 F.2d 1157, 26 USPQ2d 1038, 1041 (Fed. Cir. 1993); TBMP §
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`503.02. In order to withstand a motion to dismiss, the complaint needs to allege facts that would,
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`if proved, establish that the plaintiff is entitled to the relief sought. This includes the requirement
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`that (1) the plaintiff has standing to maintain the proceeding and (2) for an opposition proceeding,
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`that a valid ground exists for denying the registration sought. See Young v. AGB Corp., 152 F.3d
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`1377, 47 USPQ2d 1752, 1754 (Fed. Cir. 1998); TBMP § 503.02.
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`
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`To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
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`on its face.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007); Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009); TBMP § 503.02. In particular, Opposer must allege well-pleaded factual
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`matter and more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
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`at 555); TBMP § 503.02.
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`
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`For the reasons set forth below, Opposer has failed to adequately state a claim for relief by
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`providing mere conclusory statements that Opposer knew to be false and by misstating applicable
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`law, with the sole purpose of harassing Applicant and increasing Applicant’s litigation costs.
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`ARGUMENT
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`
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`Cucufish originally only provided a single ground for its Opposition, namely, that Simple
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`Design is not rightful owner of U.S. Application Serial No. 88370242. In the present First
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`Amended Notice of Opposition, Cucufish included a second ground for fraud. However, upon
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`

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`reading the allegations in the ground for fraud, it is clear that this second ground is entirely reliant
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`on the first, as the entire argument for the allegation of fraud is directly related to Cucufish’s claim
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`that Simple Design is not the rightful owner of the mark. Cucufish attempts to distract the Board
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`by claiming legitimacy of its Opposition by adding a second ground, which in reality is both
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`entirely reliant on the first and completely without legal support.
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`Despite the amendments to the Opposition, Cucufish’s entire argument still boils down to
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`Cucufish’s assertion that Simple Design is not the rightful owner of the mark because the specimen
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`included evidence of use by InShot, Inc. In the first motion to dismiss, Simple Design provided a
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`valid and enforceable license agreement between Simple Design and Hangzhou InShot Tech Co.,
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`Ltd. (“InShot”) regarding the mark identified in Application No. 88370242 (“Applicant’s Mark”).
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`Now, Cucufish is attempting to attack the license agreement by claiming the license agreement is
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`void and invalid. However, Cucufish’s legal representations to the Board regarding the validity of
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`the license agreement are both legally and factually false.
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`Furthermore, Cucufish Tech Co., Limited (“Cucufish”) first initiated Opposition
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`Proceeding No. 91264372 against Simple Design Ltd. (“Simple Design”)’s Trademark
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`Application No. 88834471 on August 21, 2020. Attached as Exhibit 1 is the docket for Opposition
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`Proceeding No. 91264372. Simple Design filed its Answer on November 25, 2020 that specifically
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`contains an affirmative defense asserting that Simple Design is the owner of Trademark
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`Application No. 88370242. During the initial disclosures, Simple Design specifically lists under
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`its FRCP 26(a)(1)(A)(ii) disclosures as item three: “[Simple Design]’s records for the use of
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`Application No. 88370242.” Attached as Exhibit 2 are Simple Design’s Initial Disclosures for
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`Opposition Proceeding No. 91264372. Cucufish has neglected to request discovery in Opposition
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`Proceeding No. 91264372 as of this date despite ample opportunity to do so.
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`

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`
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`Simple Design initiated Opposition Proceeding No. 91267266 on January 26, 2021
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`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 Applicant’s
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`Mark, which is the basis of this Opposition. Once again, Simple Design provided its initial
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`disclosures specifically stating that it will provide documents establishing its use of Applicant’s
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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 still neglected to request discovery in Opposition Proceeding
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`No. 91267266 as of this date.
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`
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`Had Cucufish decided to request discovery or attempt to make any request for Simple
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`Design’s evidence of its use of Applicant’s Mark in either proceeding, Simple Design would have
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`easily provided the non-exclusive license between itself and InShot that establishes InShot’s ability
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`to use Simple Design’s mark. Attached as Exhibit 5 is the license agreement between Simple
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`Design and InShot. The entirety of Cucufish’s original Opposition in this present proceeding is
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`based upon InShot’s use of Applicant’s 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
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`information.
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`
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`The concept of willful blindness is one that has been applied throughout numerous legal
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`topics, including intellectual property. In applying the doctrine of willful blindness to a civil case
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`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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`

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`to avoid learning of that fact.” See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769
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`(2011). While not a defendant in this matter, Cucufish should be held to the same knowledge
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`standards when originally making its allegations “on information and belief.” Cucufish was
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`provided with information in multiple prior proceedings in which Simple Design claimed
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`ownership of Applicant’s Mark, including multiple initial disclosures, an affirmative defense, and
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`a separate opposition proceeding all stating as such. Therefore, Cucufish must have believed that
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`there is a high probability that information is available regarding Simple Design’s ownership of
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`Applicant’s Mark. Despite all of this knowledge, Cucufish deliberately avoided taking any
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`discovery and failed to file any prior motion challenging Simple Design’s ownership in which the
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`information would have been revealed. Instead, Cucufish decided to file this baseless Opposition.
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`
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`Now, after receiving the licensing agreement, Cucufish puts forth false facts and
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`misapplied law in order to try to save face and provides no explanation in the First Amended
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`Opposition regarding Cucufish’s repeated failure to oppose Simple Design’s ownership of
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`Applicant’s Mark at any prior opportunity. The truth remains that Applicant’s Mark has priority
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`over Cucufish’s Application No. 90091943 on which it relies, and that this entire proceeding is in
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`retaliation for Simple Design’s refusal to agree to Cucufish’s settlement terms in other proceedings
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`between the parties.
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`
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`The myriad of allegations regarding Cucufish’s creation and use of its own mark only
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`provide an argument for standing and provide no evidence related to Cucufish’s allegations that
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`Simple Design is not the rightful owner of Applicant’s Mark. Cucufish attempts to distract the
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`Board by providing numerous exhibits, none of which support its allegations relating to Simple
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`Design’s ownership. Including the newly amended additions of the misapplied facts and incorrect
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`legal conclusions, Cucufish’s allegations are nothing more than threadbare recitals of the elements
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`

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`of a claim that Simple Design is not the rightful owner of Applicant’s Mark, supported only by
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`mere conclusory statements and misapplied legal conclusions, and should be dismissed.
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`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
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`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
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`Design’s litigation costs based on allegations that have no evidentiary support.
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`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
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`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
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`obtain readily available information in other Board proceedings regarding Simple Design’s
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`ownership of Applicant’s Mark, Cucufish also previously filed two extensions of time to oppose
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`Applicant’s 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 Applicant’s Mark. Therefore, either
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`Cucufish had the belief that Simple Design was not the rightful owner of Applicant’s Mark back
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`in early January of 2021 or Cucufish merely filed the extension of time to oppose Applicant’s
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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 Applicant’s Mark back
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`

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`in early January of 2021 when the first extension of time to oppose was filed, then it is curious as
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`to why Cucufish did not make such an argument in a motion to dismiss following Simple Design’s
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`own 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. This First Amended Opposition only doubles down on Cucufish’s
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`improper behavior and further delays Simple Design’s registration of its mark.
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`
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`The marks discussed above were all connected based on claims of likelihood of confusion
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`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 Applicant’s Mark. The filing of this present
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`Opposition, and the submission of the First Amended Opposition, only unnecessarily increases the
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`litigation costs for Simple Design without any proper justification.
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`
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`Furthermore, the factual contentions do not have evidentiary support and will not have
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`evidentiary support following discovery, nor are the legal conclusions regarding Simple Design’s
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`

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`license agreement with InShot correctly stated. Cucufish has had multiple opportunities to discover
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`the very information that is relevant to its alleged ground for this opposition and have consciously
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`avoided discovering such information in the prior proceedings. The license agreement attached as
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`Exhibit 5 clearly contradicts Cucufish’s allegations that Simple Design is not the owner of
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`Applicant’s Mark. Cucufish has had a reasonable opportunity to uncover this information, but has
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`repeatedly and intentionally failed to do so. Cucufish’s failure to oppose Simple Design’s standing
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`in prior proceedings and repeated failure to conduct any type of discovery creates a willful
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`blindness to readily available information that would have prevented this Opposition in its entirety.
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`Additionally, Cucufish’s attempt to challenge the legality of the license agreement falsely states
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`legal standards and misapplies the applicable law, solely to prolong the litigation, increase costs,
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`and further delay registration of Applicant’s Mark.
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`To the extent the Board believes there was any sanctionable conduct in filing the original
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`Opposition and/or the First Amended Opposition, the Board may impose any sanction it believes
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`to be appropriate on its own initiative following an order to show cause and an opportunity for
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`Cucufish to be heard. See Giant Food, Inc. v. Standard Terry Mills, Inc., 231 USPQ 626, 634 n.19
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`(TTAB 1986); TBMP § 527.02.
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`CUCUFISH’S MISREPRESENTATION OF LAW AND FACT
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`
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`Cucufish attempts to rely on several reasons for its allegations that the license between
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`Simple Design and InShot (the “License Agreement”) is void and invalid. Cucufish alleges that
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`License Agreement is void and invalid because it had no consideration, no definite territory, no
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`definite duration, and only “cursorily mentions” quality control making the license a naked license.
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`Cucufish also attempts to claim that the License Agreement being signed on or about February 16,
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`2019 establishes that Simple Design had no rights in Applicant’s Mark because the 1(a) filing was
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`filed on April 3, 2019 with a first use date of March 31, 2019. As will be explained below, all of
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`Cucufish’s claims as to the validity of the License Agreement and Simple Design’s rights in
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`Applicant’s Mark are factually and legally incorrect.
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`a. The License Agreement is not Void or Invalid for Lack of Consideration
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`Cucufish’s first argument that the License Agreement is void and invalid is that the License
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`Agreement lacked consideration. Cucufish claims the License Agreement “lacked consideration”
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`because the license from Simple Design to InShot is “royalty-free” and InShot was not required to
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`pay any up-front amount for the use of Applicant’s Mark. Essentially, Cucufish claims that because
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`there is no explicit monetary amount stated in the License Agreement, that the entire License
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`Agreement is void and invalid under California Law, in which the License Agreement operates.
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`However, Cucufish’s assertion is both factually and legally false.
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`First of all, the License Agreement specifically states within its “Recitals” section on the
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`very first page, that the License Agreement was made “in consideration of the foregoing and the
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`mutual promises set forth herein, and for other good and valuable consideration, the receipt and
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`sufficiency of which is hereby acknowledged” (emphasis added). The License Agreement
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`specifically states that there was good and valuable consideration that was received as
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`consideration for the License Agreement. Just because the specific consideration was not explicitly
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`stated in the face of the License Agreement does not mean that there was no consideration for the
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`agreement.
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`Even if Cucufish is attempting to claim that monetary consideration is absolutely required,
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`which it is not, California law does not automatically cause the contract to be invalid as claimed
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`by Cucufish. California Civil Code (“CCC”) § 1611 states that “[w]hen a contract does not
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`determine the amount of the consideration, nor the method by which it is to be ascertained, or
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`

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`when it leaves the amount thereof to the discretion of an interested party, the consideration must
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`be so much money as the object of the contract is reasonably worth.” Therefore, it is clear that the
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`applicable law regarding contract consideration in California does not automatically void or
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`invalidate a contract without specified monetary consideration. No matter what form the
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`consideration takes, California law clearly does not automatically void or invalidate contracts that
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`do not specify the exact consideration within the text of the agreement.
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`Furthermore, under California law, a written contract is “presumptive evidence of a
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`consideration.” See CCC § 1614. Additionally, “[t]he burden of showing a want of consideration
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`sufficient to support an instrument lies with the party seeking to invalidate or avoid it.” See CCC
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`§ 1615. Here, the License Agreement, which specifically states there is good and valuable
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`consideration in the “Recitals,” is presumptive evidence that Cucufish has failed to rebut. As
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`Cucufish is attempting to claim the License Agreement is invalid, Cucufish has the burden of
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`showing a want of consideration. However, Cucufish merely asserts incorrect legal conclusions
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`without any factual justification to claim the License Agreement is void and invalid. This is both
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`legally and factually insufficient.
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`Parties to a contract can both agree to give up some right they would otherwise have even
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`if no money were to cross hands. For example, in the License Agreement, Simple Design agrees
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`to give up its exclusivity in Applicant’s Mark by allowing InShot to have a non-exclusive license
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`to use Applicant’s Mark, but in return InShot gives up any ability to claim earned goodwill as its
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`own, to challenge infringers, or to challenge Simple Design’s ownership of the mark. Taking these
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`terms stated within the License Agreement itself together with the presumption of consideration a
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`written contract provides establishes that valid consideration exists. Cucufish has stated no facts,
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`evidence, or valid legal authority to the contrary.
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`

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`Therefore, Cucufish’s conclusory allegations that the License Agreement is void or invalid
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`due to a lack of consideration are both factually and legally false. To the extent the Board does not
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`dismiss Cucufish’s First Amended Opposition in its entirety, Cucufish’s allegations that the
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`License Agreement is void and invalid due to a lack of consideration should be stricken from the
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`Opposition with prejudice.
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`b. The License Agreement is Not Void or Invalid for Failing to Define the “Territory”
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`Cucufish also attempts to claim that the License Agreement is void and invalid because it
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`fails to define the “Territory” of the license. Cucufish claims that because the term “Territory” is
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`not defined in the License Agreement, the void and invalid and has no mention that InShot is
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`authorized to use Applicant’s Mark in the United States. Cucufish provides no legal basis that
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`would establish that any ambiguity in the “Territory” of the License Agreement is an essential
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`term that cannot be filled in with a reasonable gap filler and that the License Agreement would be
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`void and invalid as a result.
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`To the contrary, California law, under which the License Agreement is to be construed, is
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`clear regarding ambiguous terms being interpreted based on the intent of the parties. Under
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`California law, contracts “must be so interpreted as to give effect to the mutual intention of the
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`parties as it existed at the time of contracting.” See CCC § 1636. California law also states that “a
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`contract must receive such an interpretation as will make it lawful, operative, definite, reasonable,
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`and capable of being carried into effect, if it can be done without violating the intention of the
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`parties.” See CCC § 1643 (emphasis added). It is clear that the intention of the parties is a key
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`factor in discerning any ambiguous term. However, there is no mention that the contract is void
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`and invalid simply because a term may be ambiguous.
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`

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`In fact, California allows for a contract to “be explained by reference to the circumstances
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`under which it was made, and the matter to which it relates.” See CCC § 1647. Furthermore,
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`California interprets contracts by explaining how stipulations between the parties that “are
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`necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters
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`concerning which the contract manifests no contrary intention.” See CCC § 1655 (emphasis
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`added). Here, the License Agreement is between Simple Design and InShot and includes the term
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`“Territory” that Cucufish claims is undefined. However, as the parties to the License Agreement,
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`Simple Design and InShot discussed and understood the “Territory” to mean worldwide. There is
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`no dispute as to the jurisdictional scope of the term “Territory” between the parties to the contract.
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`See Declaration of Frank Liu, ¶3. Cucufish merely states that there is no definition to the term
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`“Territory” but has offered no evidence, and is unable to offer evidence, of any contrary intention
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`of the parties to the agreement.
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`The courts in California have been clear that the “court’s determination of whether an
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`ambiguity exists is a question of law” and that the “court’s resolution of an ambiguity is also a
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`question of law if no parol evidence is admitted or if the parol evidence is not in conflict.” See
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`WYDA Associates v. Merner, 42 Cal.App.4th 1702, 1710 (1996) (emphasis added); see also Brown
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`v. Goldstein, 34 Cal.App.5th 418, 433 (2019) (“when there is no material conflict in the extrinsic
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`evidence, the trial court interprets the contract as a matter of law”). Here, there is no dispute
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`between the parties to the agreement regarding the interpretation of the jurisdictional scope of the
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`term “Territory.” Cucufish is trying to create an ambiguity where none exists to create an issue of
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`fact that is not there.
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`Lastly, even assuming, arguendo, that the term “Territory” is an essential term, in
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`California, “it is indisputably the law that when ambiguous terms in a memorandum are disputed,
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`

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`extrinsic evidence is admissible to resolve the uncertainty” and that while extrinsic evidence
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`cannot create essential terms, extrinsic evidence can “be used to explain essential terms that were
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`understood by the parties but would otherwise be unintelligible to others.” See Jacobs v. Locatelli,
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`8 Cal.App.5th 317, 325 (2017) (internal quotations omitted). Here, the term “Territory” is provided
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`and is understood by the parties to the contract. Even if that term is unintelligible to others, such
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`as Cucufish, the contract is not voided or invalidated as a matter of law.
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`Overall, California law interprets contracts based on the intention of the parties, which is
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`clearly stated in the attached declaration by Frank Liu. There is no dispute between the parties to
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`the contract as to the definition and jurisdictional scope of the term “Territory” as used in the
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`License Agreement. When there is no dispute in the extrinsic evidence, which includes testimony
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`of those involved in making the agreement, then whether an ambiguity exists is a question of law,
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`not of fact. Even if considered an essential term, the jurisdictional scope is still present in the
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`agreement with the term “Territory,” even if Cucufish is not able to ascertain the exact scope based
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`on the explicit language in the License Agreement.
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`Cucufish provides no factual or legal support that the lack of an explicit definition of the
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`term “Territory” in the License Agreement voids or invalidates the agreement. Cucufish simply
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`makes an unsupported legal conclusion in an attempt to legitimize the illegitimate Opposition.
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`Should there be a dispute as to the scope of the “Territory” in the License Agreement, then that
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`dispute is a discussion to be had by the parties to the agreement. Cucufish is not a party to the
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`License Agreement and therefore has no insight into the discussions or understanding of the scope
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`or intention of the agreement or its terms. On the other hand, Simple Design has provided a
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`declaration, sworn under the penalty of perjury, that there is no ambiguity or dispute as to the term
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`“Territory” as used in the License Agreement.
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`

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`Therefore, Cucufish’s conclusory allegations that the License Agreement is void or invalid
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`due to a lack of definition for the term “Territory” are both factually and legally false. To the extent
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`the Board does not dismiss Cucufish’s First Amended Opposition in its entirety, Cucufish’s
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`allegations that the License Agreement is void and invalid due to a lack of definition for the term
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`“Territory” should be stricken from the Opposition with prejudice.
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`c. The License Agreement is Not Void or Invalid for Failing to Specify the Duration
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`Cucufish claims that the License Agreement is void and invalid due to a failure to specify
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`the duration of the license. However, this is simply legally incorrect. A contract is not void and
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`invalid simply because there is no specified period of time for the contract to end. California
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`recognizes perpetual agreements that are terminable at will and agreements with an indefinite
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`length of time that are terminable upon the occurrence of an event or circumstance.
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`“California cases have long recognized that a contract may, by its express terms, provide
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`for a term of duration of indefinite length and without specific limitation, tied not to the calendar
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`but to the conduct of the contracting parties.” See Zee Medical Distributor Association, Inc. v. Zee
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`Medical, Inc., 80 Cal.App.4th 1, 7 (2000). The Court in Zee Medical proceeds to provide a detailed
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`legal history of California Supreme Court and Appellate Court cases supporting the existence of
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`contracts with indefinite lengths and references the following cases: Great Western etc. v. J.A.
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`Wathen D. Co., 10 Cal.2d 442 (1937); Noble v. Reid–Avery Co., 89 Cal.App. 75 (1928); Long
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`Beach Drug Co. v. United Drug Co., 13 Cal.2d 158 (1939); Mangini v. Wolfschmidt, Ltd., 192
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`Cal.App.2d 64 (1961); and Burgermeister Brewing Corp. v. Bowman, 227 Cal.App.2d 274 (1964).
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`“The general California rule appears to be that a contract is not fatally defective merely
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`because it does not specify a time presently definite for its termination.” See Zee Medical
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`Distributor Association, Inc. 80 Cal.App.4th at 7-8; citing Zimco Restaurants v. Bartenders Union,
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`

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`165 Cal.App.2d 235, 237–238 (1958). This all led to the case of Consolidated Theatres, Inc. v.
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`Theatrical Stage Employees Union, 69 Cal.2d 713 (1968).
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`The Court in “Consolidated Theatres establishes a three-step analysis of contractual terms
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`of duration. The court first seeks an express term. If one is absent, the court determines whether
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`one can be implied from the nature and circumstances of the contract. If neither an express nor an
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`implied term can be found, the court will generally construe the contract as terminable at will.”
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`Zee Medical Distributor Association, Inc. 80 Cal.App.4th at 10; citing Consolidated Theatres, Inc.
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`v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 727. Even if perpetual contracts that
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`are terminable at will are disfavored by the Courts in California, it is clear that the simple lack of
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`a definite time is not fatal to the existence of a valid contract.
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`Here, the License Agreement specifically states that the agreement is terminable by either
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`party on 60 days written notice or if InShot assigns or attempts to assign or sublicense the rights
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`in the mark, which would be a breach of the terms of the License Agreement. Therefore, there is a
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`specified option for termination, even if there is no specified time. The established California law
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`for the duration of contracts explicitly states that if neither an express nor implied term can be
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`found for the contract’s duration, then the contract will be construed as terminable at will. The
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`analysis of whether the License Agreement creates a perpetual agreement terminable at will or not
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`is irrelevant to Cucufish’s claims. The bottom line is that in neither case is the License Agreement
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`void or invalid under California law simply because there is an indefinite duration.
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`Therefore, Cucufish’s conclusory allegations that the License Agreement is void or invalid
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`due to having an unspecified duration are legally false. To the extent the Board does not dismiss
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`Cucufish’s First Amended Opposition in its entirety, Cucufish’s allegations that the License
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`

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`Agreement is void and invalid due having an unspecified duration should be stricken from the
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`Opposition with prejudice.
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`d. The License Agreement is Not a “Naked” License
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`Cucufish next attempts to claim that the License Agreement only “cursorily mentions”
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`quality control making the license a naked license, and thus void and invalid. Cucufish claims that
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`there is “no detailed criterion or measure for exercising such quality control” and blindly asserts
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`“on information and belief” that Simple Design did not assert any quality control over InShot.
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`Cucufish is intentionally misrepresenting the clear terms of the License Agreement and displays a
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`complete lack of understanding of the requirements for a “quality control” provision in a licensing
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`agreement. However, this is a clear misrepresentation of the License Agreement.
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`The License Agreement clear