Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA363163
`ESTTA Tracking number:
`08/13/2010
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92051587
`Defendant
`Various, Inc.
`FLOYD A. MANDELL
`KATTEN MUCHIN ROSENMAN LLP
`525 WEST MONROE STREET
`CHICAGO, IL 60661
`UNITED STATES
`floyd.mandell@kattenlaw.com, lisa.shebar@kattenlaw.com,
`cathay.smith@kattenlaw.com, deborah.wing@kattenlaw.com
`Other Motions/Papers
`Cathay Y. N. Smith
`floyd.mandell@kattenlaw.com, kristin.holland@kattenlaw.com,
`cathay.smith@kattenlaw.com
`/s/
`08/13/2010
`Motion for Reconsideration.pdf ( 13 pages )(82690 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`Signature
`Date
`Attachments
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`JAMES CONKLE,
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`
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`v.
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`VARIOUS, INC.,
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`__________________________________________
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`Registrant.
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`__________________________________________)
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`MOTION FOR RECONSIDERATION
`OR, IN THE ALTERNATIVE, CLARIFICATION
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`Registrant Various, Inc. (“Registrant”), by its attorneys, hereby moves the Board,
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`Petitioner,
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`Cancellation No. 92051587
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`pursuant to 37 CFR § 2.127(b) and TBMP § 518 (2d Ed. 2003, Revision 1 2004), for
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`reconsideration or clarification of the Board’s July 14, 2010 order (the “Order”) partially denying
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`Registrant’s motion to dismiss Petitioner James Conkle’s (“Petitioner”) petition to cancel (the
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`“Petition”).
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`Based on the prevailing authorities and accepting all of Petitioner’s allegations as true,
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`the Board’s Order partially denying Registrant’s motion to dismiss is in error and requires
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`appropriate change because Petitioner has not sufficiently pled standing to cancel Registrant’s
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`federal trademark registration for ADULTFRIENDFINDER (“Registrant’s Mark”), and
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`Petitioner has not sufficiently pled that Registrant’s Mark is scandalous or immoral on its face.
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`I.
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`THE BOARD ERRED IN FINDING THAT PETITIONER PLED STANDING TO CANCEL THE
`REGISTRATION
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`As will be demonstrated, Petitioner’s claims must be dismissed because, as a matter of
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`law, Petitioner has not sufficiently pled standing to cancel Registrant’s Mark. Petitioner is a
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`mere intermeddler, a “self-appointed guardian of the register,” and does not meet the minimal
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`statutory requirement of 15 USC § 1063. The Board’s Order is in error because the public policy
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`implications of the Board’s Order essentially defeat the requirement that petitioners have
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`standing to assert claims. Furthermore, Petitioner’s allegations, even if true, do not and cannot
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`establish that Petitioner would be damaged by the continued registration of Registrant’s Mark,
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`and certainly do not establish that his alleged belief in damage is reasonable or objective.
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`Finally, the Board’s reliance on Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999) (“Ritchie v.
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`Simpson”), is in error. That case was predicated upon a unique set of facts where it was clear
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`that a substantial portion of the American public was familiar with the mark in question, unlike
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`the facts in this case. The Board should reconsider its Order and dismiss the Petition for lack of
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`standing.
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`The Board’s Order is in error because it is contrary to public policy.
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`A.
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`The Board’s Order is in error because it opens the door for any person to state a claim to
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`cancel trademark registrations owned by persons or entities he/she finds offensive, provided only
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`that he/she alleges that other members of the general public share his/her view. This decision
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`creates a dangerous and too easy opportunity for the intermeddling public to burden commercial
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`rights in which it has no interest. For instance, under the Board’s Order, an angry Gulf Coast
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`resident could state a claim to cancel BP’s trademark registrations by simply alleging in a
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`petition to cancel that “other members of the general public share his view” that the mark BP is
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`“scandalous and immoral.” Neither Petitioner nor the Board should have the moral authority,
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`social responsibility, or judgmental power to intrude into commercial trademark rights based on
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`moral disapproval of the trademark owner or the goods and services provided by the trademark
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`owner. If Petitioner’s allegations in his Petition are sufficient to plead standing, then mere
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`disapproval by a member of the general public of any registrant could provide standing to cancel
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`any commercial trademark. Indeed, under the Board’s Order, a member of the general public
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`could sufficiently plead that the marks PLANNED PARENTHOOD, THE ADVOCATE, or
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`VOICE OF ISLAM are “scandalous” by simply alleging that “other members of the general
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`public share his/her view.” The board’s cancellation proceedings were not designed for this
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`purpose, and the Lanham Act was not designed to convert federal trademark proceedings into a
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`forum for attack on the morality of a registrant or the goods or services provided by a registrant.
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`Accordingly, the Board’s Order is in error because it opens the trademark tribunals to the
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`litigation of moral preferences by persons with no real interest in the trademark, thereby
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`defeating the purpose established by generations of courts requiring that a litigant have
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`legitimate standing. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985) (tribunals
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`should “avoid deciding questions of broad social import where no individual rights would be
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`vindicated”); see, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984) (“A plaintiff must allege
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`personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be
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`redressed by the requested relief”); Hein v. Freedom from Religion Found., Inc., 551 U.S.
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`587, 598 (2007). The Board’s Order is contrary to precedent. As such, the Board should
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`reconsider its Order denying Registrant’s motion to dismiss for lack of standing, and dismiss the
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`Petition because Petitioner lacks standing to cancel Registrant’s Mark.
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`B.
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`Petitioner does not and cannot allege a personal interest in canceling
`Registrant’s trademark registration.
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`Petitioner does not and cannot allege a personal interest in or actual damage caused by
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`the continued registration of Registrant’s Mark. Before analyzing whether Petitioner’s belief in
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`damage is “reasonable” or “objective,” the Board’s Order erred in finding that Petitioner
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`sufficiently alleged that he has a direct and personal interest in the outcome of this proceeding.
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`McDermott v. San Francisco Women’s Motorcycle Contingent, Opposition No. 91169211, 2006
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`WL 2682345, at *4 (TTAB Sept. 13, 2006) (“An opposer must also satisfy two judicially-created
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`requirements in order to have standing: the opposer (1) must have a ‘real interest’ in the
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`proceedings, and (2) must have a ‘reasonable’ basis for belief of damage”) (emphasis added)
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`(citing Ritchie at 1099). Petitioner fails to assert or explain in his Petition any actual damage that
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`would amount to a “real interest” in the cancellation of Registrant’s Mark. In his Petition,
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`Petitioner alleges how Registrant’s purported business damages him, but Petitioner fails to
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`sufficiently allege how Registrant’s Mark damages him. Merely disliking a mark does not give a
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`party direct and personal interest in the cancellation of its federal registration. See McDermott,
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`2006 WL 2682345, at *6. As such, the Board should reconsider its Order finding that Petitioner
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`sufficiently pled that he has a direct and personal interest in the outcome of this proceeding, and
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`dismiss the Petition because Petitioner lacks standing to cancel Registrant’s Mark.
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`C.
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`Petitioner fails to plead that his alleged belief in damage is “reasonable” or
`“objective.”
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`The Board’s Order erroneously found that Petitioner has a “reasonable, objective basis”
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`for his alleged belief in damage. (Order at 6.) The Board found that, by merely alleging that
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`Petitioner “travels frequently,” “communicates each month with thousands of people he knows
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`and encounters ... on various religious, and social moral issues, including the scandalous and
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`immoral meaning of registrant’s mark[],” and that he has allegedly surveyed substantial numbers
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`of people throughout “the heartland of America” and in his own community, Petitioner has
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`sufficiently stated a claim that he has a reasonable, objective basis for his belief in damage.
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`(Order at 6.) It is telling, however, that Petitioner never affirmatively states in these allegations
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`that any of the thousands of people that he communicates with each month believe that they
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`would also be damaged by the continued registration of Registrant’s purportedly scandalous or
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`immoral mark. (See Petition, ¶ 2.) Petitioner’s allegations only attest to the purported fact that
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`he, in seemingly one-sided conversations, communicates and shares his views and opinions on
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`the “scandalous and immoral meaning of Registrant’s Marks…” Id. Similarly, where Petitioner
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`alleges that he has surveyed substantial numbers of people throughout the heartland of America
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`and in his own community, Petitioner never affirmatively alleges that these people believe that
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`they would be damaged by the continued registration of Registrant’s purportedly scandalous or
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`immoral mark. (Id. at ¶ 11.) His allegations only attest to the purported fact that, after his
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`surveys, he has concluded that a “substantial majority” of the public shares his belief. (Id.) A
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`single individual could not possibly have knowledge of the beliefs of “a substantial majority of
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`the public.” Unlike the unique facts in Ritchie v. Simpson, where facts surrounding the domestic
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`abuse suffered by Nicole Brown Simpson and the murder of Nicole Brown Simpson and Ronald
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`Goldman were familiar to most Americans, Petitioner cannot allege such facts in his Petition.
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`Petitioner’s allegations do not sufficiently plead that Petitioner has a reasonable,
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`objective basis for his alleged belief in damage. Accordingly, the Board should reconsider its
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`Order finding that Petitioner has pled standing, and dismiss the Petition because Petitioner lacks
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`standing to cancel Registrant’s Mark.
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`Petitioner has not sufficiently pled standing under Ritchie v. Simpson.
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`D.
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`The Board’s Order erred in relying on Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999)
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`to find that Petitioner has sufficiently pled standing. In Ritchie v. Simpson, there was no doubt
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`that other members of the public shared Ritchie’s belief and associated the marks “O.J.
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`SIMPSON,” “O.J.,” and “THE JUICE” with “wife-beater” and “wife-murderer,” as most of the
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`American population watched or listened to the trial of O.J. Simpson for the murder of Nicole
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`Brown Simpson and Ronald Goldman. In fact, in Ritchie v. Simpson, the Federal Circuit noted
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`that the opposer’s concerns were shared by a large portion of the American public. Ritchie, 170
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`F.3d at 1097. In this case, Petitioner cannot and does not sufficiently assert that his concerns are
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`shared by a large portion of the American public. In fact, as explained above, Petitioner fails to
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`provide sufficient support in his Petition that his belief is shared by anyone, let alone a large
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`portion of the American public. Accordingly, the Board should reconsider its reliance on Ritchie
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`v. Simpson in finding that Petitioner sufficiently pled standing, and dismiss the Petition because
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`Petitioner lacks standing to cancel Registrant’s Mark.
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`THE BOARD ERRED IN FINDING THAT PETITIONER ADEQUATELY PLED THAT
`REGISTRANT’S MARK IS SCANDALOUS OR IMMORAL ON ITS FACE
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`Petitioner has not stated a claim to cancel Registrant’s Mark for being purportedly
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`II.
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`immoral or scandalous. The Board’s Order is in error because Petitioner’s allegations in his
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`Petition to Cancel are implausible and insufficient to plead that Registrant’s Mark is scandalous
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`or immoral on its face, and because the Board’s Order is contrary to precedent.
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`A.
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`The Board’s Order is in error because it is contrary to precedent and
`because Petitioner’s allegations are implausible.
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`To state a claim, “[t]he factual allegations must be enough to raise a right to relief above
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`the speculative level.” Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (quoting Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)), cert. denied, 129 S. Ct. 2878 (2009).
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`“The purpose of a Rule 12(b)(6) motion is “to eliminate actions that are fatally flawed in their
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`legal premises and destined to fail. . . .” Bayer Consumer Care AG, 90 U.S.P.Q.2d 1587, 1590
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`(TTAB 2009) (quoting Fair Indigo LLC v. Style Conscience, 85 U.S.P.Q.2d 1536, 1538 (TTAB
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`2007).
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`Petitioner’s allegation, that Registrant’s trademarks are scandalous, is fatally flawed
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`because it is implausible that Registrant’s Mark, ADULTFRIENDFINDER, is scandalous on its
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`face. A simple dictionary search of the words “adult,” “friend,” and “finder” evidence that the
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`primary meanings of these words to the general public are innocuous, rather than vulgar. See In
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`re Mavety Media Group Ltd., 33 F.3d 1367, 1372 (Fed. Cir. 1994) (“Such reliance on the
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`dictionary meanings of words to establish whether a mark constitutes scandalous matter ... is not
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`new to the Board.”) Registrant’s Mark, on its face, is not “shocking to the sense of truth,
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`decency or propriety; disgraceful; offensive; disreputable; ... giving offense to the conscience or
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`moral feelings; ... [or] calling out [for] condemnation,” especially in today’s social attitude and
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`sensitivity. In re Mavety, 33 F.3d at 1371 (citing In re Riverbank Canning Co., 95 F.2d 327, 328
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`(CCPA 1938)).
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`Even though the Board must accept all well-pleaded facts in the Petition as true, the
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`Board is not required to give credence to implausible allegations. See Del Rio v. United
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`States, 2010 WL 2300538, at *1 (Fed. Cl. 2010). Here, even though Petitioner may have alleged
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`appropriate “buzz” words in an attempt to defeat a motion to dismiss, it is obvious from the face
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`of Registrant’s Mark that it is not scandalous or immoral. It is further evident from the face of
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`the Petition that Petitioner’s real enemy is the Registrant’s assertedly scandalous and immoral
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`business, not Registrant’s Mark or the explicit meaning of “ADULTFRIENDFINDER.” By not
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`dismissing Petitioner’s fatally flawed claim, the Board undermines and directly contradicts legal
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`precedent established by McDermott, 2006 WL 2682345, at *2; In re Madsen, 180 U.S.P.Q. 334,
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`335 (TTAB 1973); In re Mavety Media Group Ltd., 33 F.3d 1367 (Fed. Cir. 1994); In re
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`McGinley, 660 F.2d 481, 485, 211 USPQ 668, 673 (CCPA 1981), and other cases that stand for
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`the proposition that a claim under Section 2(a) against the registration of scandalous or immoral
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`matter pertains only to marks that are scandalous or immoral.
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`If the Board does not reconsider its Order, numerous innocuous marks that have been
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`registered for years, such as PLAYBOY, BP, MARLBORO, EXXON, WHAT HAPPENS IN
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`VEGAS STAYS IN VEGAS, HALLIBURTON, HOOTERS, HELLS ANGELS, SPAM,
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`DYKES ON BIKES, could all soon come under assault for conveying a purported “scandalous
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`or immoral” meaning to an alleged “substantial composite” of the public under Section 2(a).
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`Individuals should not be able to and cannot state a claim to cancel a commercial trademark
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`registration so easily by simply alleging that any mark is “explicitly scandalous or immoral.” As
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`such, the Board should reconsider its Order finding that Petitioner’s claim is sufficient, and
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`dismiss the Petition for failure to state a claim.
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`B.
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`The Board’s Order is in error because Petitioner’s allegations do not support
`the claim that a “substantial composite” of Americans share his belief.
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`In order to assert a claim that a trademark is scandalous or immoral under Section 2(a), a
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`petitioner must allege that the registrant’s mark comprises scandalous matter (1) from the
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`standpoint of a substantial composite of the general public, and (2) in the context of
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`contemporary attitudes. See In re Mavety, 33 F.3d at 1371 (citing In re McGinley, 660 F.2d 481,
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`485, 211 USPQ 668, 673 (CCPA 1981); In re Old Glory Condom Corp., 26 U.S.P.Q.2d 1216,
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`1219 (TTAB 1993)). In his Petition, Petitioner alleges that he “travels frequently,”
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`“communicates each month with thousands of people he knows and encounters ... on various
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`religious, social and moral issues, including the scandalous and immoral meaning of registrant’s
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`mark []”, and that he has surveyed substantial numbers of people throughout “the heartland of
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`America” and in his own community. (Order at 6 (citing Petitioner at ¶¶ 2, 11).) These
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`allegations, however, do not explicitly or implicitly support the necessary allegation under
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`Section 2(a) that a “substantial composite” of the population share Petitioner’s belief that
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`Registrant’s Mark is scandalous or immoral on its face. As a preliminary matter, and as
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`discussed above, Petitioner never alleges any support for his claim that a “substantial composite”
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`of the population believe that Registrant’s Mark is scandalous or immoral on its face.
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`Furthermore, the people that Petitioner claims to have surveyed throughout “the heartland of
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`America” and “in his own community” do not comprise a “substantial composite” of the general
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`population.1 Accordingly, the Board should reconsider its Order finding that Petitioner’s claim
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`is sufficient, and dismiss the Petition for failure to state a claim.
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`C.
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`The Board’s Order is in error because Petitioner failed to allege an essential
`element to assert cancellation of a scandalous or immoral mark.
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`As discussed above, in order to assert a claim that a trademark is scandalous or immoral
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`under Section 2(a), a petitioner must not only allege that the registrant’s mark comprises
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`scandalous matter from the standpoint of a substantial composite of the general public, but also
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`that the mark is scandalous or immoral “in the context of contemporary attitudes.” In re Mavety,
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`33 F.3d at 1371 (citing In re McGinley, 660 F.2d 481, 485, 211 USPQ 668, 673 (CCPA 1981); In
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`re Old Glory Condom Corp., 26 USPQ2d 1216, 1219 (TTAB 1993)); Ritchie, 170 F.3d at 1094
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`(“Whether a mark comprises immoral and scandalous matter is to be ascertained in the context of
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`contemporary attitudes...”). These are two different elements necessary for the Board to consider
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`in order to ascertain whether the mark comprises scandalous matter. Id.
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`In his Petition, Petitioner does not and cannot allege that Registrant’s Mark comprises
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`scandalous matter in the context of contemporary attitudes. The Board “must be mindful of
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`ever-changing social attitudes and sensitivities. Today’s scandal can be tomorrow’s vogue.” In
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`re Mavety, 33 F.3d at 1371. With the news and entertainment media today vividly portraying
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`degrees of violence and sexual activity, and trademarks such as FCUK (Reg. No. 2920270 et al.),
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`FCUK AT HOME (Reg. No. 2910253), CUM TOGETHER (Reg. No. 2844606), DOGGY
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`STYLE (Reg. No. 3050430), HUSTLER’S ANAL SEDUCTION (Reg. No. 2920403), BIG ASS
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`1
`According to the U.S. Census Bureau, the current population of the United States is
`approximately 310 million.
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`9
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`(Reg. No. 3391800) registered on the USPTO trademark registry, Petitioner does not and cannot
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`plead that Registrant’s Mark is scandalous in the context of contemporary attitudes. Petitioner’s
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`claims are invalid on their face as Registrant’s Mark “ADULTFRIENDFINDER,” unlike these
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`marks, has a totally innocuous meaning, especially in the context of contemporary attitudes. As
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`such, the Board should reconsider its Order finding that Petitioner’s claim is sufficient, and
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`dismiss the Petition for failure to state a claim.
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`For all or any of the reasons above, Registrant respectfully requests the Board reconsider
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`its Order partially denying Registrant’s Motion to Dismiss, and dismiss Petitioner’s Petition to
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`Cancel entirely, because Petitioner has not sufficiently pled standing to cancel Registrant’s Mark,
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`and/or because Petitioner has not sufficiently pled that Registrant’s Mark is scandalous or
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`immoral on its face.
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`III.
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`IN THE ALTERNATIVE, REGISTRANT SEEKS CLARIFICATION OF THE BOARD’S ORDER
`STRIKING ONLY PARAGRAPH 15 OF THE PETITION
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`In its Order, the Board struck Paragraph 15 of the Petition on the ground that the
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`allegations “essentially seek cancellation under Section 2(a) because of respondent’s assertedly
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`scandalous and immoral conduct, [which] do not support a claim under Section 2(a).” (Order at
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`8, n. 8.) Petitioner alleged in Paragraph 15 of his Petition that “[a]s a direct and proximate result
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`of Registrant’s wrongful conduct as alleged herein, Petitioner has suffered, and continues to
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`suffer, personal, substantial and irreparable emotional and mental harm, warranting the
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`immediate cancellation of Registrant’s Marks in ‘ADULTFRIENDFINDER.’” Registrant agrees
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`with the Board’s decision to strike the allegations in Paragraph 15 from the Petition.
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`Registrant seeks clarification as to whether the Board meant to also strike Paragraphs 12
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`through 14, along with 15, from the Petition, which all purport to seek cancellation under Section
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`2(a) because of respondent’s assertedly scandalous and immoral conduct. (See Petition at ¶ 12
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`10
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`(“Registrant utilizes its ADULTFRIENDFINDER Marks and Website to describe and market to
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`Internet consumers semi-naked women in sexually explicit poses, promising sex to ‘subscribing’
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`customers in ‘ADULTFRIENDFINDER.com,’ to induce internet browsers to purchase
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`‘memberships’ in their online ‘sex club,’ and to pay additional fees for immediate access to these
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`sex-providing women who assertedly are ready at a moment’s notice to perform a variety of sex
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`acts in the subscriber’s own neighborhood”); Petition at ¶ 13 (“On information and belief, most
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`or all of these featured female ‘members’ of Registrant’s ‘sex clubs,’ those whose sexually
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`explicit photos appear in conjunction with Registrant’s Marks and its Website, promising
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`instantaneous sex ‘in your neighborhood today,’ are not members of Registrant’s ‘sex club’ at
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`all, nor are they available to perform the wide variety of instantaneous sex acts that are promised
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`to new subscribers by Registrant’s Marks in ‘ADULTFRIENDFINDER’ and in Registrant’s
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`Website of the same name”); Petition at ¶ 14 (“On information and belief, most if not all of these
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`featured ‘members’ are in fact paid models or porn stars whose photos are being used by
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`Registrant as part of an elaborate and highly deceptive but successful scheme, one made possible
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`by Registrant’s Trademarks and the explicit sexual images and promises described and created
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`by the words and Marks ‘ADULTFRIENDFINDER’ ”).)
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`Accordingly, Registrant requests that the Board clarify its Order and strike Paragraphs 12
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`through 15 of the Petition as well as any other Paragraphs that the Board deems inappropriate.
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`WHEREFORE, Registrant respectfully requests that the Board grant its Motion for
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`Reconsideration of the Board’s Order partially denying Registrant’s motion to dismiss and
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`dismiss the Petition in its entirety. In the alternative, Registrant respectfully requests that the
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`Board grant its Motion for Clarification of the Board’s Order striking only Paragraph 15 of the
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`11
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`Petition and strike the allegations in Paragraphs 12 through 15 of the Petition as well as any other
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`Paragraphs of the Petition that the Board deems inappropriate.
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`Date: August 13, 2010
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`Respectfully submitted,
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`
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`One of the Attorne s for Registrant
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`Floyd A. Mandell
`Cathay Y. N. Smith
`KATTEN MUCHIN ROSENMAN LLP
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`525 West Monroe Street
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`Chicago, Illinois 60661-3693
`Telephone: (312) 902-5200
`Facsimile: (312) 902-1061
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`Kristin L. Holland
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`KATTEN MUCHIN ROSENMAN LLP
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`2029 Century Park East, Suite 2600
`Los Angeles, CA 90067-3012
`Telephone: (310) 788-4400
`Facsimile: (310) 788-4471
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`12
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`JAMES CONKLE,
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`v.
`VARIOUS, INC.,
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`Petitioner,
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`Registrant.
`
`l
`3
`g
`%
`§
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`Cancellation No. 92051587
`Mark: ADULTFRIENDFINDER
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`:.______:._:.._:__.__)
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 13th day of August, 2010, I caused a true and correct copy of
`the foregoing to be served upon:
`
`Mr. Paul D. Supnik
`Law Office of Paul D. Supnik
`9401 Wilshire Boulevard, Suite 1012
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`Beverly Hills, CA 90212
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`via First Class Mail, postage prepaid.