LAW OFFICES OF DONALD W. HUDSPETH. P.C.
`Donald W. Hudspeth (012198)
`3030 North Central Avenue, Suite 604
`Phoenix, AZ 85012-2713
`Telephone: (602) 265-7997
`Facsimile: (602) 265-6099
`Attorneys for the Respondent
`
`TTAB
`
`f——‘-‘“‘’—'?‘’ “
`
`
`06- 1 2-2005
`
`TRADEMARK TRIAL AND APPEALS COURT u.s. Patent &TMOfcITM Mail Rcpt Dt. #22
`
`IN AND FOR THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Cancellation No.: 92045520
`Reg. No. 2823470
`
`)
`)
`
`))
`
`LLOYD P. KISSICK/Agent for MY
`INVENTIONS LLC, an Arizona Limited
`Liability Corporation (SIC) Company,
`
`RESPONSE TO PETITIONER’S
`)
`) MOTION FOR SUMMARY
`)
`JUDGMENT AND RESPONDENT’S
`)
`CROSS MOTION FOR SUMMARY
`)
`JUDGMENT
`)
`
`(Assigned to Interlocutory Attorney Cheryl
`A. Butler)
`
`))
`
`)
`)
`
`Petitioner,
`
`V.
`
`DIVERSIFIED SCALE COMPANY, INC.,
`an Arizona Corporation/ ANNAMARIA M.
`MURPHY - President,
`
`Respondent.
`
`Respondent, Diversified Scale Company, Inc. (“Diversified”), and AnnaMaria M.
`
`Murphy ,(“Murphy”) by and through undersigned counsel, files their Response to Petitioner’s
`
`Motion for Summary Judgment:
`
`I. Introduction.
`
`This suit concerns Respondent’s Registration of the name “Calibron” after Petitioner’s
`
`formally abandoned same by “express request” (as shown below). The factual record as shown
`
`by USPTO records is quite clear. As shown below Petitioner did not challenge the use of the
`
`name as to others’ use of the “Calibron” name, so Petitioner’s dispute regarding Respondent’s
`
`filing and receipt of a federal trade mark certification appears to be an unnecessary and bad
`
`‘-0
`
`' 1
`
`2
`
`3
`4
`
`5 6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`D0;/::V[)<{xjF'Pfl§l§;>PFET
`PROFESSIONAL CORPORATI
`PHOENIX, AZ
`
`faith continuation of his personal Vendetta against his former business affiliate who also
`
`

`
`rejected his sexual advances. (See Affidavit of Anna Maria Murphy, attached as Exhibit “1,” 111]
`
`11,26). Petitioner has already filed a complaint with the State Bar of Arizona against
`
`undersigned counsel alleging the same facts alleged in this litigation. This Complaint was,
`
`dismissed, appealed by Petitioner, denied and dismissed again, then Petitioner filed a fraud
`
`claim against undersigned counsel with the USPTO which was denied - and so it goes.
`
`(Incidentally, in addition to being a member in good standing of the State Bar of Arizona,
`
`undersigned counsel teaches Business Law and Ethics for the Global School of Management
`
`and Leadership, Accountancy Department, at Arizona State University, West Campus).
`
`II. Statement of Facts.
`
`1. Respondent filed the Application for the “Calibron” federal trademark on April 22,
`
`2003.
`
`2. According to USPTO records the name and the mark “Calibron” were available at
`
`that time.
`
`3. Mr. Kissick himself had begun using the name in 1985 after a prior registrant,
`
`Calibron Corporation which had “First Use” and “First Use In Commerce”of May 2, 1977, let
`
`the name registration expire in 1984. (See AnnaMaria Murphy Affidavit, Exhibit “1,”
`
`paragraph 16-17 and Exhibit “2.”)
`
`4. Investigation with the US Patent and Trademark Office indicated that the “Current
`
`Status” of the name “Calibron” in the category of precision balances was “Abandoned:
`
`App1icant’s express request.” and “Dead” due to abandonment by petitioner Lloyd Kissick as
`
`of August 11, 1986 and therefore, available. (See, TARR system reports attached as Exhibit
`
`“3.” Also, Kissick’s corporation, “Holder Corporation” lost the Mark on June 27, 1994.
`
`(See,
`
`TESS system search results attached as Exhibit “4.”
`
`5. After the appropriate challenge period expired without incident the United States
`2
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`

`
`Patent and Trademark Office approved the federal trademark (copy of USPTO Notice of
`
`Publication and Certificate of Registration attached as Exhibit “5”).
`
`6. ) As shown by additional Tess reports, other companies are using the Calibron name
`
`for products such as fluid measuring equipment, flow meter data collection, and liquid density
`
`measurement, which are in the same classification 009.
`
`7) There are numerous knock offs in the scale industry. These include: Gem-7, Acura 4,
`
`Accura 7, Precision 4, Accugem 4, Accugem 7, Zen 7, and Zen 10, which is just a partial list of
`
`the knock-offs. (See Affidavit of Anna Maria Murphy, attached as Exhibit “1,” 1[ 18).
`
`8) And, since 1986 at least six Applications have been filed in the name Calibron as
`
`Trademark registrants: “Calibron, Inc. In March 3, 1987; “Calibron system, Inc. In December
`
`11, 1989, September 23, 1991, two on July 23, 1992 and April 4, 2002 . All six filings were
`
`public record as are “Ca1ibron Instruments,” Calibron.com,” “Calibron System, Inc. And
`
`“Calibron Co.” which can all be found on the Internet. None of these users were ever
`
`challenged by Mr. Kissick. (See AnnaMaria Murphy Affidavit, Exhibit “1,” 1] 19. and see Tess
`
`reports, Exhibit “6.”).
`
`9). Holder Corporation is not a corporation in good standing in the State of Arizona
`
`because the Arizona Corporation Commission revoked its qualification to conduct business in
`
`Arizona on 12/10/1988 well before the transactions and occurrences involved in this matter.
`
`III. Law and Analysis.
`
`A. Petitioner’s Abandoned the Mark by Express Request.
`
`A “Dead” or abandoned name is available for registration. The Lanham Act, 15 U.S.C.
`
`§ 1127 (1992), provides in pertinent part that “A mark shall be deemed “abandoned” when
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`either of the following occurs:
`
`23
`LAW OFFICES or
`DONALD W. HUDSPE !
`PROFESSIONAL CORPORATI
`PHOENIX, AZ
`
`(1) When its use has been discontinued with intent not to resume such use. Intent not to
`3
`
`

`
`resume may be inferred from the circumstances...”
`
`(2) When any course of conduct the owner, including acts of omission as well as
`
`commission, causes the mark to become generic.
`
`Kareem Abdul-Jabbarr v. General Motors Corporation, 85 F.3d 407, 411 (9“‘ Cir. 1996)
`
`When a trademark has been abandoned anyone may acquire the abandoned rights by
`
`simply commencing use of the abandoned mark. Manhattan Indus., Inc. V. Sweater Bee by
`
`Banfif 627 F.2d 628, 207 USPQ 89 (2d. Cir. 1980). The first person to seize such abandoned
`
`rights in a commercially effective and realistic fashion acquires the abandoned mark and
`
`henceforth may assert rights in the mark sufficient to prevent any subsequent attempt to
`
`appropriate the previously abandoned rights. California Cedar Prods. Co. V. Pine Mountain
`
`Corp. 221 USPQ 1137 (9‘“ cir. 1984).
`
`Here, as shown by TESS April 22, 2003 and TARR system reports, Exhibits 8 and 3,
`
`the name was available at the time of Respondent Murphy’s Application. And, it was available
`
`at App1icant’s “express request.” Exhibit 3. Obviously, expressly requested abandonment is
`
`intentional abandonment; therefore, unequivocal abandonment. It is also an evidentiary
`
`admission of same. Thus, petitioner abandoned the name as a matter of law.
`
`Petitioner admits that the product could not be produced because the “twin beam
`
`injection molding was NOT COMMERCIALLY SERVICEABLE, i.e. it was broken...”
`
`(Petitioner’s Motion p. 4) and that Petitioner could not fill orders for the product for this
`
`reason. Id. Because Petitioner had no product to produce or sell he could not have been using
`
`the name.
`
`As shown by Exhibits 3 and 4, neither Mr. Kissick nor his Holder Corporation owned
`
`the name “Calibron” at the time Ms. Murphy applied for the federal trademark. The Petitioner’s
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`claims have no standing because as stated the Calibron trademarks Serial Number 73586453
`4
`
`
`
`

`
`was abandoned August 11, 1986 and Serial Number 73617763 was cancelled on June 27, 1994
`
`Regarding the “Holder Corporation,” referred to in the Petition, Line 8, Petitioner
`
`states: “This trademark has passed from Mr. Kissick’s wholly owned company, Holder
`
`Corporation-an Arizona corporation dba Supra Technologies, a duly registered ‘fictitious
`
`name’, (properly closed and now defunct) to Mr. Kissick and then Mr. Kissick’s wholly owned
`
`Limited Liability Corporation, MY INVENTIONS LLC, an Arizona limited liability
`
`corporation (sic) company.”
`
`But as shown by the Arizona Corporation Commission official public records, Holder
`
`Corporation was not an “Arizona corporation” but a Delaware corporation the corporate charter
`
`of which was revoked in 1988 (Exhibit “7"). (As stated Holder lost the “Mark” with the
`
`USPTO in June 1994). So, the holder entities do not even exist or have rights in the name or
`
`mark..
`
`Further, “Supra Technologies” was never a registered ‘fictitious name’ with the
`
`Arizona Secretary of State nor was there a recordation of a Certificate of Fictitious Name with
`
`the Maricopa County Recorder’s Office. Holder Corporation and Supra Technologies were a
`
`Partnership recorded on July 18, 1986 with a Record Number of 86-0371063 and are
`
`abandoned and “now defunct.”
`
`Finally, we have no record of any assignment from Holder Corporation to My
`
`Inventions LLC and even if we did Holder was not in good standing at the time. Thus, Holder
`
`Corp. had nothing to assign and My Inventions LLC has no status as an owner Petitioner.
`
`Again, failure to maintain the corporate status of the owner of the Mark indicates intent to lose
`
`(or not properly maintain) ownership of same by a wilful omission and causes one to lose
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`ownership as a matter of law (no corporation equal no holder).
`
`23
`LAW OFFICES OF
`DONALD W. HUDSPE
`PROFESSIONAL CORPORAT
`PHOENIX, AZ
`
`N
`
`Mr. Kissick had a pattern of abandonment. And, he always recognized that Respondent
`5
`
`

`
`had some interest in the name. (See Affidavit of Anna Maria Murphy, attached as Exhibit “1,”
`
`11 18). If it had not been for Ms. Murphy’s continuous manufacturing, sales and marketing since
`
`1985 the product would not have survived. (See Affidavit of Anna Maria Murphy, attached as
`
`Exhibit “1,” 111] 5,6).
`
`B. Petitioner Involuntarily Abandoned the Mark By Failing to Maintain its
`
`Distinctiveness.
`
`A trademark owner must continue to use a mark to maintain consumer recognition and
`
`distinctiveness. Dreyfuss Funds, Inc. V. Royal Bank of Canada , 525 F. Supp. 1108, 213 USPQ
`
`872 (S.D.N.Y. 1981). If a trademark owner fails to defend the mark and allows other
`
`companies to us same then the mark will be abandoned. BelZS0uth Corp. V Data Nat ’l Corp,.
`
`60 F.3d 1565, 35 USPQ2d 1554 (Fed. Cir. 1995) (Bell System lost “walking fingers” logo by
`
`allowing other to use).
`
`While Petitioner discussed the one case, where he sued to defend the trademark in
`
`2003, but Petitioner does not mention Holder’s abandonment of the Mark in June 1994 (after
`
`the 2003 proceeding referenced in Petitioner’s brief) or address the numerous instances of other
`
`parties using the same name in the same industry and other industries. Mr. Kissick is aware
`
`that the scale had been copied by many and is being and has been sold as Gem-7, Acura 4,
`
`Accura 7, Precision 4, Accugem 4, Accugem 7, Zen 7, and Zen 10, which is just a partial list of
`
`the knock-offs. (See Affidavit of Anna Maria Murphy, attached as Exhibit “1,” 1] 18).
`
`Mr. Kissick who refused to defend the patent after the 1986 suit because he and Ms.
`
`Murphy each paid half of the $60,000 in attorney fees and after some time, it was a standing
`
`retort that they were spending so much money, “we were probably buying the attorney a new
`
`car.” (See AnnaMaria Murphy Affidavit, Exhibit “l ,” paragraph 18.)
`
`Petitioner is not the only user of the name, and has not been for quite a while. (See
`
`6
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`

`
`TESS reports, Exhibit “6.”). Since 1986 at least six Applications have been filed in the name
`
`Calibron as Trademark registrants: “Calibron, Inc. In March 3, 1987; “Calibron system, Inc. In
`
`December 11, 1989, September 23, 1991, two on July 23, 1992 and April 4, 2002 . All six
`
`filings were public record as are “Calibron Instruments,” Calibron.com,” “Calibron System,
`
`Inc. And “Calibron Co.” which can all be found on the Internet. “(See AnnaMaria Murphy
`
`Affidavit, Exhibit “1,” 1] 19.) As shown by additional Tess reports, other companies are using
`
`the Calibron name for products such as fluid measuring equipment, flow meter data collection,
`
`and liquid density measurement, which are in the same classification 009. (Tess reports,
`
`Exhibit “6.”)
`
`As shown, due to knock-offs, competing registrations and abandonment, the
`
`“Calibron” name is not distinctive and it carmot be identified with the Petitioner. Thus,
`
`Petitioner has lost the right to claim sole right to use same.
`
`When a trademark is guarded, as claimed to be by Mr. Kissick, the registrant of a
`
`trademark has the opportunity to oppose an application during the period of publication; if no
`
`opposition is filed with the USPTO then the Registration is awarded. Here, Respondent filed
`
`for tradename registration on April 22, 2003. Petitioner did not object to same. So, Petitioner’s
`
`waived his right to oppose the Application. And, if his registration of the name were still in
`
`affect, it would be Petitioner’s negligence, not Respondent’s overreaching, that caused the
`
`harm).
`
`C. Petitioner Cannot Maintain an Action Because He Has Unclean Hands.
`
`False statements to the USPTO void and preclude the applicant from enforcing claims
`
`to a mark. Yamamoto & Co (America) v. Victor United, Inc. 219 USPQ 968 (C.D. Cal. 1982).
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`LAW OFFICES OF
`DONALD W. HUDSPE
`PROFESSIONAL CORPORATI
`PHD!-:NIx,AZ
`
`Here, calling Respondent, Ms. Murphy, a “concubine” (Motion, P.2) is uncalled for. And,
`
`Respondent, Ms. Murphy, filed the Application in the same way and under the circumstances
`7
`
`

`
`1-1
`
`that Mr. Kissick first filed his application, i.e. after the name was “dead” due to abandonment.
`
`So, assuming that Mr. Kissick’s application was ethical and lawful under the circumstances,
`
`then Respondent’s Application was under the same circumstances. If Ms. Murphy’s
`
`Application was i1l—founded, then so was Petitioner Kissick’s. So, Petitioner in equity is
`
`estopped from bring his claim.
`
`This means that Mr. Kissick’s key statement on page 3, paragraph “j” that I [Donald W.
`
`Hudspeth on behalf of Diversified] signed a DECLARATION “knowing full and well that the
`
`trademark, Calibron, was currently being used by the original owner,...” is false in at least two
`
`ways: (1) he was not using it and (2) he was not the original owner. Again, Petitioner has made
`
`false claims to the USPTO so is neither worthy of nor entitled to relief.
`
`IV.
`
`Conclusion.
`
`Mr. Kissick’s Petition and Motion for Summary Judgment show that he has no
`
`evidence to refute the objective evidence provided in our Answer and Response under the
`
`controlling statutes, case law and accompanying exhibits. Petitioner also lacks standing and has
`
`unclean hands. For these reasons Petitioner has no standing or basis to support a claim. Thus,
`
`Petitioner’s Motion should be denied and Respondent’s Cross-Motion for Summary Judgment
`
`granted with Judgment and attorneys fees and costs awarded in favor of Respondent.
`
`RESPECTFULLY SUBMITTED this fl day of June, 2006.
`
`LAZ OFFQCES §F DONALD W. HUDSPETH, P.C.
`
`Donald W. Hudspeth, Esq.
`Attorney for Defendant
`
`ORIGINAL mailed this/_L day of
`June, 2006 with:
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`

`
`and
`
`COPY of the foregoing mailed
`this _[_‘!:.day of June, 2006 to:
`
`Lloyd P. Kissick
`605 N. Sunflower Circle
`
`Chandler, AZ 85226
`
`
`
`Pro P73 Petitioner
`
`C:\Data\ALL FlLES\Murphy, naMaria\USPTOCalibronDispute\ResponseMSJ.wpd
`
`2
`
`3
`
`4
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`LAW OFFICES OF
`DONALD W. HUDSPET I
`PROFESSIONALCORPORATI
`PHOENIX, AZ
`
`'
`
`

`
`Exhibit 1
`
`AnnaMaria Murphy Affidavit
`
`

`
`AFFIDAVIT OF ANNAMARIA MURPHY
`
`ss.
`
`) )
`
`)
`
`STATE OF ARIZONA
`
`County of Maricopa
`
`I, AnnaMaria Murphy, having been duly sworn upon my oath, depose and say:
`
`1.
`
`2.
`
`I am President of Diversified Scale Co, Inc.
`
`Under a January 15, 1985 Exclusive Distributorship Agreement between Holder
`
`Corporation, Lloyd Preston Kissick’s company, and Diversified, my company
`
`sold the first Calibron scale order on June 3, 1985.
`
`The contract is dated January 15, 1985 and I began my “first use” of the
`
`product with exclusivity approximately May 1985.
`
`Although the Agreement refers to Mr. Kissick’s license and sale of the product
`
`including its container to Diversified, as a matter of fact, Mr. Kissick stopped his
`
`hands-on overseeing of manufacturing the product in late 1985 because the
`
`product was not acceptable due to the poor quality because his wife and minor
`
`children were making them.
`
`After that the mold was accessible to me whenever I needed to order from the
`
`plastics company. I also ordered the plastic, the weights, the labels, the boxes
`
`and then I had my workers assemble them.
`
`I ordered and assembled the parts and marketed the product nationwide. Mr.
`
`Kissick received and cashed the checks. Sometime in 1990 he insisted I make
`
`out the checks payable to his elderly parents, Cozette or Lloyd Kissick. When I
`
`questions why he said, “it’s not your business, they now own Calibron.”
`
`

`
`3!
`
`From 1985 to 2000 I paid him $2.00 per scale and from 2000 to 2003 I paid him
`
`$1.70 each. I had to do more marketing because of competition from knock-offs.
`
`When I asked him to please defend the patent and stop the erosion of our sales,
`
`he told me he “was not buying another lawyer a new car.”
`
`On April 10, 2003 I called the plastic factory to order scale parts and was told
`
`that on March 24, 2003 Mr. Kissick, had “pulled the die,” and with no notice
`
`whatsoever, left me without product or income.
`
`As a result I have designed and tried to sell a competitive product named
`
`“EXCALIBER.”
`
`But, Mr. Kissick has called some of my customers and threatened them with suit
`
`if they sell my product.
`
`This is Mr. Kissick’s modus operandi; that is, to intimidate and. punish all who
`
`do not do his bidding. There is also an element of rejected sexual advances over
`
`many years.
`
`I provided my intake information for the federal Trademark Application to Lupe-
`
`Marie Jasso, who also completed the first draft of the Application.
`
`As stated above I was the one to manufacture and sell the Calibron scale for all
`these years, and to my knowledge I was responsible for its continuous
`
`“commercial use” since 1985.
`
`10.
`
`ll.
`
`12.
`
`13.
`
`14.
`
`Later on in the process, I learned that our investigation with the US Patent and
`
`Trademark Office indicated the “Word” name “Calibron” was “Dead” due to
`
`abandonment as of August 11, 1986 and therefore, available.
`
`15.
`
`During this same investigation I also learned the Service Mark “Calibron” was
`
`

`
`“Dead” as it was “Cancelled” on June 27, 1994. The Registrant was “Holder
`
`Corporation.”
`
`16.
`
`In the USPTO search of “Calibron” ten (10) records were found with three (3)
`
`“Calibron” trademarks as “Deadz” the gr_i,gi_nLl trademark owned by a third party,
`
`Calibron Corporation, expired in 1984; one was Mr. Kissick’s
`
`“Word”abandoned in August 11, 1986; and one was Holder Corporation’s
`
`“Mark” cancelled on June 27, 1994.
`
`17.
`
`Mr. Kissick filed his “Word” trademark on March 6, 1986 and the “Mark” he
`
`filed on September 2, 1986 with the belief that the third party, Calibron
`
`Corporation, trademark of the Word and Mark had been abandoned and,
`
`therefore, available; the same belief I had on April 22, 2003 that Mr. Kissick’s
`
`trademarks were abandoned and, therefore, available. Mr. Kissick’s claim to
`
`common law rights would be superseded by Calibron Corporation’s claim of
`
`prior “Common Law” rights with “First Use” and “First Use In Commerce” of
`
`May 2, 1977 and trademark filing on September 19, 1978. Therefore, his
`
`comments that he was the “original” owner are false, he had no more claim to it
`
`then I did.
`
`18.
`
`Mr. Kissick and I sued for trade name infringement in 1986. By his action Mr.
`
`Kissick admits I had some interest in the name, otherwise, he would not have
`
`insisted I join in the suit against “Calibrator,” the name was then changed to
`
`“Gem 7." And to my knowledge this was the one and last time he sued for trade
`
`name, copyright or patent infringement. He was aware the scale had been copied
`
`by many and were being sold as Gem-7, Acura 4, Accura 7, Precision 4,
`
`Accugem 4, Accugem 7, Zen 7, and Zen 10, just a partial list of knock-offs that
`
`3
`
`

`
`I‘
`
`Mr. Kissick refinsed to defend the patent. In the 1986 suit we each paid half of
`
`the $60,000 in attorney fees. After some time, it was a standing retort that we
`
`were spending so much money we were probably buying the attorney a new car.
`
`19.
`
`After Mr. Kissick’s trademark registration with the USPTO and after the 1986
`
`infringement suit six Applications were filed with the name “Calibron” as
`
`Trademark Registrants: “Calibron, Inc” in March 3, 1987; and “Calibron
`
`Systems, Inc.” in December 11, 1989, September 23, 1991, two on July 23,
`
`1992, and April 4, 2002. All six filings were public record as are “Calibron
`
`Instruments,” “Calibron.com,” “Calibron Systems, Inc.” and“Calibron Co.”
`
`which can all be found on the internet. Yet, Mr. Kissick failed to defend the
`
`trade name “Calibron” until now.
`
`20.
`
`“Holder Corporation,” Mr. Kissick’s company, was revoked in 1988; like the
`
`name “Calibron,” the mark “Calibron,” and the scale patent Mr. Kissick had a
`
`pattern of abandonment. If it had not been for my continuous manufacturing,
`
`sales and marketing since 1985 the product would not have survived.
`
`21.
`
`In 1991 I was instructed to give the checks to his parents while Mr. Kissick was
`
`in the Arizona State Prison in Douglas.
`
`22.
`
`I sought to avoid the tremendous cost of litigation.
`
`I never did business under
`
`Calibron Scale, Inc. and allowed it to be dissolved. I used the boxes, with the
`
`stickers, for a short time only. Because my newly designed boxes were late in
`
`arriving and I had orders to fill I utilized only 1,000 Calibron boxes covering the
`
`Calibron name with the EXCALIBER sticker and disposed of the balance of the
`
`boxes; boxes which Mr. Kissick had abandoned as he had abandoned the patent,
`
`abandoned the trade name and abandoned the trademark.
`
`4
`
`

`
`o\
`
`23.
`
`I made a new scale to market with a new name, “EXCALIBER,” created new
`
`boxes with the “EXCALIBER” name and I marketed the new EXCALIBER
`
`scale to the customers I cultivated over the past 18 years.
`
`24.
`
`Until I was informed of Mr. Kissick’s bar complaint the last communication
`
`between his law firm, Schmeiser, Olsen & Watts LLP, and the Law Offices of
`
`Donald W. Hudspeth in February and March of this year arguing over my right
`
`to use the EXCALIBER name were the last communication to my knowledge.
`
`25.
`
`I have known Mr. Kissick for twenty years. Mr. Kissick, true to his nature,
`
`wants and needs to destroy me - under any name - and if he cannot do that in a
`
`court of law he’ll do that by taking away my protector - my lawyer. On occasion,
`
`when Mr. Kissick wanted to do something I was not sure about I would tell him I
`
`would ask my attorney Dohn Rosenthal. Mr. Kissick held a grudge against Mr.
`
`Rosenthal because he was atough negotiator on my behalf when we drew up the
`
`original Agreement. Mr. Kissick never liked me to be influenced by the attorney
`
`and always said, “are you going to sic your Rottweiler on me?” He then tried to
`
`get Mr. Rosenthal to take a personal injury case for his step-son knowing full
`
`well it would disqualify Mr. Rosenthal from defending me against Mr. Kissick,
`
`as we were in a business relationship. To Kissick, Dohn Rosenthal was a
`
`perceived threat.
`
`26.
`
`I am “scared stiff” of Mr. Kissick - I think he is a dangerous man. Kissick is a
`
`bully who, in a letter to me on “O6/20/03 - 4:37 AM,” referred to himself as a
`
`“type A alcoholic” who “used to ‘go off’ on people or situations that appeared
`
`not to be going (his) way.” He feigns victimhood and persecution, and is always
`
`

`
`casting his “Target” as a “Villain” in order to legitimize his retaliatory actions to
`
`those who are not familiar with his need to control. Mr. Kissick likes to lawyer
`
`to intimidate as he did to one of my customers in his 2003 communique, “I am
`99 64
`
`required to enter your witness information into my pleading,
`
`that means big
`
`damages for us” and “fraud against us will be our suit against you.” His control
`
`game is to psychologically terrorize me or anyone who interfered with his
`
`pursuit, currently my attorney.
`
`27.
`
`Since Mr. Kissick’s bar complaint was dismissed and his subsequent appeal was
`
`denied he has now again focused another form of harassment towards me and
`
`Diversified, my company . On June 7, 2006, attorney Dohn Rosenthal, Statutory
`
`Agent for Diversified, was served with a Justice Court claim alleging a 2003
`
`debt for “approximately $9,000.00," an amount Mr. Kissick fabricated for which
`
`no invoice ever existed.
`
`28.
`
`The foregoing is true and correct to my personal knowledge.
`
`
`
`
`(Signature)
`
`STATE OF ARIZONA
`
`County of Maricopa
`
`)
`
`)
`
`Subscribed and sworn before me on this date.
`
`..
`
`--._\
`
`gotaryPublic
`
`g E
`
`9
`OFFTCIAL s? O
`-
`-Marie ass
`Ntzggsublic - Stats 0! Arizona
`
`
`MARICOPA COUNTY
`
`
`My cam“, Eflpiras October 12.
`
`
`
`
`
`
`My commission expires:
`
`9 ~;
`
`AFFIDAVITOFANNAMARIAMURPHY6-8—06.wpd
`
`

`
`ax
`
`Exhibit 2
`
`Prior registrant, Calibron Corporation
`
`

`
`_ Trademark Electronic Search System (TESS)
`
`_
`
`Page 1 of2
`
`United States Patent and Trademark Office
`
` Home I Site Index I Search I FAQ I Glossary I Guides I Contacts I eBusiness I eBiz alerts I News I Help
`
`Trademarks > Trademark Electronic Search System(Tess)
`
`TESS was last updated on Thu Jun 8 04:16:39 EDT 2006
`
`M P
`
`REV Doc Nan Doc
`
`LAST Doc
`
`H9900‘ I Please Iogout when you are done to release system resources allocated for you.
`
`Iéstan List At:
`
`
`
`OR I*:Jurr~!p
`
`to record:
`
`
`Wt Record 10 out of 11
`
`
`
`ASSIGIIStatusr_
`_TARR Status
`Browser to return to TESS)
`
`Typed Drawing
`
`Word Mark
`
`CALIBRON
`
`
`
`H
`TI_’.‘.I'?._5““"5.....§ ( Use the "Back" button of the Internet
`
`Goods and
`Services
`
`(CANCELLED) IC 003. US 052. G & S: CLEANING FLUIDS FOR USE ON MAGNETIC TAPES
`AND PHONOGRAPH RECORDS. FIRST USE: 19770502. FIRST USE IN COMMERCE: 19770502
`
`(CANCELLED) IC 009. US 021. G & S: DEMAGNITIZERS SPECIFICALLY ELECTRICAL COILS,
`MAGNETIC TAPES, RADIOS, INSULATED WIRE, AND ELECTRICAL SPEAKERS. FIRST USE:
`19770502. FIRST USE IN COMMERCE: 19770502
`
`(EXPIRED) IC 021. US 029. G & S: STYLUS BRUSHES, FOR PHONOGRAPH RECORDS AND
`MAGNETIC TAPE EQUIPMENT, AND CLEANING CLOTHS FOR PHONOGRAPH RECORDS AND
`FOR MAGNETIC TAPE EQUIPMENT. FIRST USE: 19770502. FIRST USE IN COMMERCE:
`19770502
`
`"'a"‘ D"‘‘‘'‘'"‘9
`Code
`
`(1) TYPED DRAWING
`
`Design Search
`Code
`
`Serial Number 73125606
`
`Filing Date
`
`May 6, 1977
`
`Current Filing
`Basis
`
`1A
`
`Original Filing 1A
`Basis
`
`°"“I‘9° ".‘
`Registration
`
`Registration
`Number
`
`Registration
`Date
`Owner
`
`CHANGE IN REGISTRATION HAS OCCURRED
`
`1102490
`
`September 19, 1978
`
`(REGISTRANT) HORIAN ENTERPRISES CORPORATION MICHIGAN 12381 SCHAEFER
`
`http://tess2.uspto.goV/bin/gate.exe?%doc&state=stjads.2.10
`
`6/8/2006
`
`

`
`Trademark Electronic Search System (TESS)
`
`’i
`
`Page 2 of 2
`
`DETROIT MICHIGAN 48227
`
`(LAST LISTED OWNER) CALIBRON CORPORATION CORPORATION BY CHANGE OF NAME
`FROM DELAWARE 600 LAKE EMMA ROAD LAKE MARY FLORIDA 32746
`
`Assignment
`Recorded
`
`ASSIGNMENT RECORDED
`
`Type of Mark
`
`TRADEMARK
`
`Register
`
`PRINCIPAL
`
`SECT 15. PARTIAL SECT 8 (6-YR).
`
`Affidavit Text
`LivelDead
`DEAD
`Indicator
`
`
`mssm mum smmmocm
`FIRST Doc Pm Doc Nsxr Doc
`Lns-1‘ Doc
`
`
`
`l.HOME I SITE INDEXI SEARCH I eBUSlNESS I HELP I PRIVACY POLICY
`
`http://tess2.uspto.gov/bin/gate.exe?%doc&state=stjads.2.10
`
`6/8/2006
`
`

`
`Exhibit 3
`
`“Abandoned: App1icant’s express request.”
`
`

`
`Trademark Electronic Search System (TESS)
`
`'6
`
`Page 1 of 2
`
`
`
`United States Patent and Trademark Office
`
`Hamel Site Index I Search I FAQ I Glossary I Guidesl Contacts I e-Business I eBiz alertsI NewsI Help
`
`Trademarks > Trademark Electronic Search System(Tess)
`
`TESS was last updated on Thu Jun 8 04:16:39 EDT 2006
`
`TESSHWE
`I‘€E;X‘T L257 Fins‘: ‘Doc:
`Pmvnoc L».sTDo=c
`
`
`
`Imnnstgabtbus
`
`
`
`I.T""B 3‘.""..“3? ( Use the "Back" button of the Internet
`Browser to return to TESS)
`
`‘nsslcnst-atus_
`
`Typed Drawing
`
`Word Mark
`
`Goods and
`services
`
`CALIBRON
`
`(ABANDONED) IC 009. US 026. G & S: PRECISION BALANCES. FIRST USE: 19850603.
`FIRST USE IN COMMERCE: 19850603
`
`(ABANDONED) IC 007. US 021. G & S: PULVERIZERS. FIRST USE: 19860203. FIRST USE IN
`COMMERCE: 19860203
`
`Mark Drawing
`Code
`
`Design Search
`Code
`
`(1) TYPED DRAWING
`
`Serial Number
`
`73586453
`
`Filing Date
`
`Current Filing
`Basis
`
`Original Filing
`Basis
`
`Owner
`
`Attorney of
`Record
`
`Type of Mark
`
`Register
`LiveIDead
`Indicator
`
`March 6, 1986
`
`1A
`
`1A
`
`(APPLICANT) KISSICK, LLOYD P. SUPRA TECHNOLOGIES INDIVIDUAL UNITED STATES P.
`0. BOX 26604 TEMPE ARIZONA 85282
`
`TOD R. NISSLE
`
`TRADEMARK
`
`PRINCIPAL
`
`DEAD
`
`Abandonment
`August 11, 1986
`Date
`
`
`http://tess2.uspto.gov/bin/gate.exe?f=doc&state=huabfi.2.9
`
`
`
`6/8/2006
`
`

`
`A Latest Status Info
`
`page 1 0f2
`
`Thank you for your request. Here are the latest results from the
`
`This page was generated by the TARR system on 2006-06-08 12:56:07 ET
`
`Serial Number: 73586453
`
`Registration Number: (NOT AVAILABLE)
`
`Mark (words only): CALIBRON
`
`Standard Character claim: No
`
`Current Status: Abandoned: Applicant's express request.
`
`Date of Status: 1986-09-09
`
`Filing Date: 1986-03-06
`
`Transformed into a National Application: No
`
`Registration Date: (DATE NOT AVAILABLE)
`
`Register: Principal
`
`Law Office Assigned: (NOT AVAILABLE)
`
`If you are the applicant or applicant's attorney and have questions about this file, please contact
`the Trademark Assistance Center at TrademarkAssistanceCenter@uspto.gox
`
`Current Location: 900 -File Repository (Franconia)
`
`Date In Location: 1987-02-03
`
`
`
`LAST APPLICANT(S)/OWNER(S) OF RECORD
`
`1. KISSICK, LLOYD P.
`
`Address:
`
`KISSICK, LLOYD P.
`P. 0. BOX 26604
`
`TEMPE, AZ 85282
`United States
`
`Legal Entity Type: Individual
`Country of Citizenship: United States
`
`GOODS AND/OR SERVICES
`
`
`
`
`International Class: 007
`Class Status: Abandoned
`
`http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=73586453&action=Request+Status
`
`6/8/2006
`
`

`
`9 Latest Status Info
`
`Page 2 of 2
`
`PULVERIZERS
`
`Basis: 1(a)
`First Use Date: 1986-02-03
`First Use in Commerce Date: 1986-02-03
`
`International Class: 009
`Class Status: Abandoned
`PRECISION BALANCES
`
`-
`Basis: 1(a)
`First Use Date: 1985-06-03
`
`First Use in Commerce Date: 1985-06-03
`
`(NOT AVAILABLE)
`
`(NOT AVAILABLE)
`
`ADDITIONAL INFORMATION
`
`MADRID PROTOCOL INFORMATION
`
`PROSECUTION HISTORY
`
`1986-08-27 - Abandonment - Express mailed
`
`1986-08-27 - Assigned To Examiner
`
`1986-08-11 - Communication received from applicant
`
`1986-05-23 - Non-final action mailed
`
`1986-05-12 — Assigned To Examiner
`
`
`
`CORRESPONDENCE INFORMATION
`
`Correspondent
`TOD R. NISSLE (Attorney of record)
`
`TOD R. NISSLE
`DRUMMOND & NISSLE
`4041 N. CENTRAL
`
`PHOENIX, ARIZONA 85012
`
`
`
`http://tarr.uspto.goV/servlet/tarr?regser=seria1&entry=73586453&action=Request+Status
`
`6/8/2006
`
`

`
`Exhibit 4
`
`“Holder Corporation” Cancellation
`
`

`
`‘Trademark Electronic Search System (TESS)
`
`I
`
`Page 1 of 2
`
`United States Patent and Trademark Office
`
` Home I Site Index I Search I FAQ I Glossary I Guides I Contacts I eBusiness I eBiz alertsl News I Help
`
`Trademarks > Trademark Electronic Search System (TESS)
`
`Trademark Electronic Search System(Tess)
`
`TESS was last updated on Thu Aug 4 04:12:19 EDT 2005
`
`
`
`H List At:
`
`
`Browser to
`
` Calibriin
`
`Word Mark
`
`Goods and
`Services
`
`CALIBRON I
`
`(CANCELLED) IC 009. US 026. G & S: SCALES, NAMELY POCKET-SIZED TWIN BEAM
`SCALES FOR WEIGHING SMALL OBJECTS. FIRST USE: 19850603. FIRST USE IN
`COMMERCE: 19850603
`
`""a”‘ °'a"”I“9
`Code
`
`(5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM
`
`Serial Number
`
`73617763
`
`Filing Date
`
`September 2, 1986
`
`Current Filing
`Basis
`
`Original Filing
`Basis
`Published for
`Opposition
`Registration
`Number
`
`1A
`
`1A
`
`June 2, 1987
`
`1469629
`
`Registration Date December 22, 1987
`
`Owner
`
`(REGISTRANT) HOLDER CORPORATION CORPORATION ARIZONA SUITE #3 1985 EAST
`5TH STREET TEMPE ARIZONA 85281
`
`Attorney of
`Record
`
`TOD R. NISSLE
`
`~
`
`Type of Mark
`
`TRADEMARK
`
`http://tess2.uspto.gov/bin/gate.exe?f=doc&state=eOo2o.2.7
`
`I
`
`1
`
`8/4/2005
`
`

`
`‘Irademark Electronic Search System (TESS)
`
`Page 2 of 2
`
`Register
`
`LivelDead
`Indlcator
`
`PRINCIPAL
`
`DEAD
`
`Cancellation Date June 27, 1994
`
`
`
`|.HOME I SITE INDEXI SEARCH I eBU$lNESS I HELP I PRNACY POLICY
`
`http://tess2.uspto.gov/bin/gate.exe?f=doc&state=u2aO2s.2.7 2
`
`8/4/2005
`
`

`
`Exhibit 5
`
`USPTO Notice of Publication and Certificate of Registration
`
`

`
`
`
`\ ‘ UNITED STATES
`Ir PATENT AND
`* -k #9. TRADEMARK OFFICE
`
`
`D