TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Opposition No. 91197681
`In the matter of Cancellation No.: 92052188
`For the Mark: CELL JUNKIE
`Reg. No: 3,351,212
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`3 5 2..
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`,2 [Q
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`DAVID R. SHYMATTA
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`dba CELL JUNKIE
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`Opposer,
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`VS.
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`MICHAEL S. PAPILLON
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`Applicant.
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`\J%%/\./\/\./\/§/%\2
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`Cancellation No.: 92052188
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`SUPPLEMENTAL NOTICE REGARDING STATUS OF ARIZONA DISTRICT
`COURT ACTION
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`Trademark Trial and Appeal Board
`P.O. Box 1451
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`Alexandria, VA 22313-1451
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`In accordance with the Boards Order dated July 18, 2012 opposer, defendant Mr.
`Shymatta is providing herewith a copy of the Order dismissing applicant’s Complaint that
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`was filed in Arizona District Court on 04/27/2011 action, No. 2:11-CV- 00846—SRB.
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`Together with this notice is a copy of the Response to the Complaint (less exhibits), and
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`return of service.
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`Mr. Shymatta’s recent email to Mr. Titus regarding the Boards Order was responded
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`to by Mr. Papillon who is now dealing with the matter and affirmed to send correspondence
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`to him. Mr. Titus, however, has not filed a withdrawal of attorney with the Board therefore a
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`copy of this response and proof of service will be served upon Mr. Titus.
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`ll|l||l|||||l|ll|lllllIlllllllllllllllllllllllllll
`08-20-2012
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`U 5 Mm 5 mat;/TI'1 Mall Flcpt C11
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`1173
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`

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`RESPECTFULLY SUBMITTED
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`DATED: August17, 2012
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`E J: /k
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`DAVID SHYMATTA, pro se
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`Registrant/Opposer
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`

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`\ Case2:11-cv-00846-SRBDocument17Filed09/21/11Page1of7
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`NOT FOR PUBLICATION
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`2 3
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`4 5 6
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`8 9
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`vs.
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`Michael Papillon, d/b/a Cell Phone Junkie,) No. CV 1 1-846-PHX-SRB
`Plaintiff,
`g ORDER
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`%
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`13 David Shymatta, d/b/a Cell Junkie,
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`Defendant.
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`At issue is Defendant David Shymatta’s Motion to Dismiss for Lack of Personal
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`Jurisdiction (“MTD”) (Doc. 10).
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`I.
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`BACKGROUND
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`Plaintiff Michael Papillon is a citizen and resident of Arizona. (Doc. 1, Compl. ll 1.)
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`21 Defendant David Shymatta is a citizen and resident of Idaho. (Id. fl 2.) Defendant sells cell
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`phone products and accessories under the name Cell Junkie and owns the federal registration
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`for the mark CELL JUNKIE, which he registered in 2007 for “retail store services featuring
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`cell phone accessories.” (Id. 1] 6.) Plaintiff publishes a blog titled “The Cell Phone Junkie”
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`on the website Www.cellphonejunkie.com. (Id. ll 5.) Plaintiff‘ s blog provides reviews ofcell
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`phones and cell phone accessories and podcasts about cell phones. (Id.)
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`The Complaint alleges that on or about February 25, 2010, Defendant sent Plaintiff
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`a demand letter requesting that Plaintiff cease and desist using the name “The Cell Phone
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`Case 2:11—cv—00846-SRB Document 17 Filed 09/21/11 Page 2 of 7
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`Junkie” in connection with the blog. (Id. 11 7.) In March 2010, Plaintiff filed a petition with
`the United States Trademark Office to cancel Defendant’s registration ofthe mark. (Id. 11 9.)
`On or about November 15, 2010, Defendant sued Plaintiff for trademark infringement in
`Idaho and effected service of process on Plaintiff by hand delivery in Phoenix, Arizona.
`(Id. W 4, 16.) The Idaho action was dismissed for lack ofpersonaljurisdiction over Plaintiff
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`on April 21, 2011. (Id. 1] 17.)
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`seeking a declaratoryjudgment that Plaintiffdid not: (1) infringe on Defendant’s registered
`mark under federal or common law; (2) dilute the mark under 15 U.S.C. § l125(c); (3)
`violate the Lanham Act; or (4) unfairly compete with Defendant, directly or contributorily.
`(Id. W 22-45.) Plaintiffalso seeks a declaration by this Court that Defendant abandoned his
`federal trademark. (Id. 1111 46-50.) Defendant, who is proceeding pro se in this matter, moves
`to dismiss for lack of personal jurisdiction. (MTD at 11-17.)
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`
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`Six days later, on April 27, 2011, Plaintiff filed the instant lawsuit in this Court,
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`
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`LEGAL STANDARDS AND ANALYSIS
`The plaintiff bears the burden of establishing that a court has personal jurisdiction
`over a defendant. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
`2004). The plaintiff is “obligated to come forward with facts, by affidavit or otherwise,
`supporting personal jurisdiction.” Amba Mktg. Sys., Inc. v. Jobar Int ’l, Inc., 551 F.2d 784,
`787 (9th Cir. 1977). There 1,, no statutory method for resolving this issue; thus, “the mode
`of its determination is left to the trial court.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc. , 557
`F.2d 1280, 1285 (9th Cir. 1977).
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`II.
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`evidentiary hearing, “a plaintiff must make only a prima facie showing of jurisdictional
`facts” to survive the motion. Bauman v. Daimler Chrysler Corp. , 644 F.3d 909, 919 (9th Cir.
`2011) (internal quotation and citation omitted). In determining whether the plaintiff has
`established a prima facie case of personal jurisdiction, f‘uncontroverted allegations in [the
`plaintiff’s] complaint must be taken as true, and conflicts between the facts contained in the
`parties’ affidavits must be resolved in [the plaintiff’s] favor.” Rio Props., Inc. v. Rio Int ’l
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`Case 2:11—cv-00846—SRB Document 17 Filed 09/21/11 Page 3 of 7
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`Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002) (citing Am. Tel. & Tel. Co. v. Compagnie
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`Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)).
`To establish personaljurisdiction over a nonresident defendant, a plaintiffmust show
`that the forum state’s long-arm statute confers jurisdiction over the defendant and that the
`exercise ofjurisdiction comports with constitutional principles of due process. Id. (citing
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`U1-l>k»)l\)
`\O0O\]O’\
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` 0meukv.LangstenSlip&BatbyggeriA/S.52F.3d267.269(9thCir.1995)).Arizona’s
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`long-arin statute allows the exercise of personal jurisdiction to the same extent as the U.S.
`Constitution. See Ariz. R. Civ. Proc. 4.2(a); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414,
`416 (9th Cir. 1997); A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1358 (Ariz. 1995). Thus,
`a court in Arizona may exercise personal jurisdiction over a nonresident defendant as long
`as doing so accords with constitutional principles ofdue process. Cybersell, 130 F.3d at 416.
`Due process requires that a nonresident defendant have sufficient minimum contacts
`with the forum state so that “maintenance of the suit does not offend ‘traditional notions of
`fair play and substantial justice.’” Int ’l Shoe Ca. V. Washington, 326 U.S. 310, 316 (1945)
`(quoting Milliken v. Meyer, J 11 U.S. 457, 463 (1940)); see also Data Disc, 557 F.2d at 1287.
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`16 Courts recognize two bases ior personaljurisdiction within the confines ofdue process ‘ (1)
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`‘general jurisdiction’ which arises when a defendant’s contacts with the forum state are so
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`pervasive as to justify the exercise ofjurisdiction over the defendant in all matters; and (2)
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`‘specificjurisdiction’ which arises out ofthe defendant’s contacts with the forum state giving
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`rise to the subject litigation.” Birzer v. Jockey ’s Guild, Inc., 444 F. Supp. 2d 1005, 1008
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`(C.D. Cal. 2006). Plaintiff does not argue that the Court has general jurisdiction over
`Defendant. (See Pl.’s Resp. to MTD (“Resp”) at 2 n.1.)
`The specific jurisdiction analysis requires evaluating the nature and quality of the
`defendant’s contacts and how they relate to the cause ofaction. Data Disc, 557 F.2d at 1287.
`In [the Ninth Circuit], we use the following approach in making this
`evaluation: (1) The nonresident defendant must do some act or consummate
`some transaction with the forum or perform some act by which he purposefully
`avails himself of the privilege of conductin activities in the forum, thereby
`invoking the benefits and protections of its aws. (2) The claim must be one
`which arises out ofor results from the defendant’ s forum related activities. (3)
`Exercise ofjurisdiction must be reasonable.
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`Case 2:11-cv—OO846-SRB Document 17 Filed 09/21/11 Page 4 of 7
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`. arise[s]
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`Id. “A single forum state contact can support jurisdiction if the cause of action .
`out ofthat particular purposeful contact ofthe defendant with the forum state.” Yahoo! Inc.
`v. La Ligue Contre Le Raczsme Et L’Antz'semz'tz'sme, 433 F.3d 1199, 1210 (9th Cir. 2006)
`(internal quotation and citation omitted). The “touchstone” of the personal jurisdiction
`lment or purposeful direction so as “to ensure that a defendant will
`y as a result of random, fortuitous, or attenuated
`1 F.3d 1072, 1076 (9th Cir. 2003) (internal
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`analysis is purposeful avai
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`not be haled into a jurisdiction solel
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`contacts.” Gator. com Corp. v. L.L. Bean, Inc. , 34
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`quotation and citation omitted).
`In the Ninth Circuit, purposeful availment and purposeful direction are distinct
`concepts, where the former is most often used in suits sounding in contract, while the latter
`is used in suits sounding in tort. Schwarzenegger, 374 F.3d at 802. Plaintiffs claims are
`grounded in trademark infringement, a tort, so the Court applies a purposeful direction
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`ffects” test in examining purposeful
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`which is suffere
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`13 anayssPanavisionIntern,L.P.v.Toeppen,141F.3d1316,1321(9thCir.1998).The
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`14 Ninth Circuit Court of Appeals employs the Calder “c
`direction of a defendant’s activities towards a forum state. Id. (citing Calder v. Jones, 465
`U.S. 783, 789 (1984)). Under the Calder test, personal jurisdiction is based upon: “(1)
`intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of
`d—and whichthe defendant knows is likely to be suffered—inthe forum state.”
`dus. AB, 11 F.3d 1482, 1486 (9th Cir. 1993). The Ninth Circuit
`Calder “cannot stand for the broad proposition that a
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`20 Court of Appeals has observed that
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`e always gives rise to specific [personal]
`foreign act with foreseeable effects in the forum stat
`jurisdiction.” Bancroft & Masters, Inc. v. Augusta Nat ’I, Inc., 223 F.3d 1082, 1087 (9th Cir.
`2000). Purposeful direction requires “something more” than mere foreseeability in order to
`justify the assertion of personal jurisdiction over the out-of-state defendant. Id.
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`, which,
`.
`.
`The Complaint alleges that “Defendant owns and operates a retail store .
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`according to Defendant, has sold tens of thousands of products in the United States and
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`abroad, some of which, on information and belief[,] were sold into Arizona.” (Compl. 4.)
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`28 The Complaint further alleges that Defendant owns and operates a website, “which is hosted
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`Case 2:11—cv-00846-SRB Document 17 Filed 09/21/11 Page 5 of 7
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`by GoDaddy.com in Phoenix, Arizona and, on information and belief, sells products into
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`2 Arizona.” (Id.) Furthermore, Plaintiff alleges that “Defendant also has purposely availed
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`himselfofthe laws ofthe State ofArizona by sending a demand letter to Plaintiffin Arizona
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`[and] by filing a lawsuit in the State ofIdaho and effecting personal service on Plaintiffby
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`hand delivery in Maricopa County, Arizona.” (Id) Plaintiff specifies that, on February 25,
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`2011, Defendant sent Plaintiff a letter requesting that he cease and desist using the name
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`“The Cell Phone Junkie” on his blog and demanded an accounting of Plaintiff’ s sales and
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`profits. (Id. 1] 7, Ex. 4 (cease and desist letter).) The Court considers these potential grounds
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`for personal jurisdiction in turn.
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`Sales to Arizona Via Website
`A.
`Plaintiff asserts that Defendant purposefully availed himselfofthe privilege ofdoing
`business in Arizona by selling approximately $50.00 in merchandise to Arizona residents
`through a website hosted by the Arizona company GoDaddy.com. (Compl. 1] 4; Resp. at 4-6;
`MTD at 9.) The Internet has createdjurisdictional challenges for courts in determining when
`defendants purposely direct their activities to a particular forum state. To establish specific
`jurisdiction, a defendant operating an interactive website must direct “something more” than
`just the website to the forum state. See Bancroft, 223 F.3d at 1087; see also George Kessel
`Int ’l, Inc. v. Classic Wholesales, Inc., No. CV-07-323-PHX-SMM, 2007 WL 3208297, at *4
`(D. Ariz. Oct. 30, 2007) (“An [I]ntemet advertisement alone is insufficient to subject a party
`e; there must be ‘something more’ to demonstrate that the
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`to jurisdiction in another stat
`defendant directed activity toward the forum state.” (citation omitted)).
`The Court finds that Plaintiffs sales to Arizona residents, in the amount ofjust over
`$50.00, do not constitute “something more” showing Defendant’s purposeful direction of
`activity toward Arizona. Plaintiffhas not shownthat Defendant specifically targeted Arizona
`residents with his website, nor is $50.00 a substantial enough amount to overcome the
`“something more” hurdle on its own. It is also immaterial for purposes of personal
`jurisdiction over Defendant whether his website was hosted by a company headquartered in
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`28 Arizona. Plaintiffoffers no allegation or evidence that Defendant physically did business in
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`Case 2:11-cv-00846-SRB Document 17 Filed O9/21/11 Page6of7
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`Arizona or even that the servers hosting his website are located in Arizona. The mere fact
`that GoDaddy.com is located in Arizona does not show intentional actions expressly aimed
`at Arizona. It is also of no moment that Defendant may have consented to jurisdiction in
`Arizona for any disputes arising out ofthe terms of service ofthe website hosting contract.
`B.
`Cease and Desist Letter and Service of Process
`his Court has personal jurisdiction over Defendant because
`Plaintiff also argues thatt
`7 Defendant sent Plaintiff a cease and desist letter and effected service ofprocess on Plaintiff
`“A cease and desist letter is not in and of itself sufficient
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`in Arizona. (Compl. 1] 4; Resp. at 1.)
`8
`to establish personal jurisdiction over the sender ofthe letter,” in part because ofthe strong
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`public policy reasons for encouraging such means ofresolving disputes before resorting to
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`litigation. Yahool, 433 F.3d at 1208 (citing Red Wing Shoe Co. v. Hockerson-Halberstadt,
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`Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1988)). Howe »/er, “[t]his is not to say that a cease and
`12
`desist letter can never be the basis for personal jurisdiction.” Id. The Ninth Circuit Court of
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`14 Appeals has upheld jurisdiction based on two letters that the court found were intended to
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`interfere wrongfully with the plaintiff s use ofa disputed domain name. Id. (citing Bancroft,
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`223 F.3d at 1087). In Yahoo/, the Ninth Circuit Court ofAppeals also observed that service
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`ofprocess in connection with a lawsuit brought in anotherjurisdiction does not, on its own,
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`provide a sufficient basis for personal jurisdiction. Id. at 1209.
`n with other acts, though, cease and desist letters or service of process
`In combinatio
`can bolster personal jurisdiction. See, e.g., Wistron Corp. v. Phillip M Adams & Ass0cs.,
`LLC, No. C-10-4458 EMC, 2011 WL 1654466, at *6 (ND. Cal. Apr. 28, 2011); Huntco
`V-401-BR, 2007 WL 4570818, at *5-6 (D. Or.
`Supply, LLC v. Starlite Media, LLC, No. 07-C
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`23 Dec. 20, 2007) (“[E]ven though cease-and-desist letters constitute sufficient minimum
`contacts, they do not alone suffice to confer specific jurisdiction “without more.” (internal
`quotation omitted»; JoeScan, Inc. v. LMI Techs.,
`Inc.', No. C07-5323RJB,
`2572297, at *2 (W.D. Wash. Sept. 5, 2007) (“[P]ersonal jurisdiction can be partly based on
`the sending ofcease and desist letters ifthere are other activities directed at the forum which
`are distinct from the threats of [patent] infringement litigation” (internal quotation and
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`Case 2:11—cv—00846—SRB Document 17 Filed 09/21/11 Page 7 of 7
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`citations omitted)). In this case, as explained above, the Court finds that Plaintiff has not
`shown other acts to justify the exercise ofpersonal jurisdiction over Defendant. As a matter
`of law, cease and desist
`letters and service of process cannot substantiate personal
`
`24——————————
`‘ The Court is utterly unpersuaded by Plaintiff s argument that ifthis Court does not
`have personaljurisdiction over Defendant, “there will be no forum [in which] to resolve the
`dispute” because the district court in Idaho concluded. that it did not have personal
`jurisdiction over Plaintiffin the separate action. (See Resp. at 8.) Plaintiffcould always sue
`Defendant in Idaho, where personal jurisdiction over Defendant would presumably not be
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`an issue.
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`jurisdiction on their own.
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`III.
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`CONCLUSION
`The Court finds that taken separately or together, the cease and desist letter, service
`ofprocess, and website sales do not amount to purposeful direction of an intentional act to
`this jurisdiction. Because the Court finds that Plaintiff has not established, purposeful
`direction, it need not address the other factors inthe personaljurisdiction analysis. This Court
`does not have personal jurisdiction over Defendant.‘
`IT IS THEREFORE ORDERED granting Defendant David Shymatta’s Motion to
`Dismiss for Lack ofPersonal Jurisdiction (Doc. 10) and dismissing the Complaint.
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`DATED this 215‘ day of September, 2011.
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`Susan R. Bolton
`United States Distrzct Judge
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`

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` v_‘
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`Case 2:11—cv—0O846-SRB Document 10 Filed 07/29/11 Page 1 of 56
` /.
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`David Shymatta, DefendantPro Se
`_‘_RECEWED T‘002350
`PO Box 38
`‘ T“
`Inkom ID, 83245
`A
`Jii , 2
`2011
`Phone No. (208)-406-6330
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`UNITED STATES DISTRICT COURT .
`
`FOR THE DISTRICT OF ARIZONA
`
`MICHAEL PAPILLON,
`DBA THE CELL PHONE JUNKIE
`Plaintiff,
`
`)
`) Case No. 2:11-cv-00846-SRB
`)
`.
`
`))
`
`DEFENDANT’S MOTION TO
`) DISMISS FOR LACK OF
`) PERSONAL JURISDICTION
`
`) )
`
`v.
`
`)
`DAVID SHYMATTA
`)
`‘
`' DBA CELL JUNKIE
`)
`Defendant.
`___.__._____.______.._.__.__._.._
`DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
`LACK OF PERSONAL JURISDICTION
`.
` . __________.______.____.___._
`TO INFORM ALL PARTIES AND THEIRATTORNEYS:
`A
`1.
`Defendant David Shymatta’s Response to the complaint for declaratoryjudgment filed on
`April 27, 2011. Defendant will and hereby does move for an order denying Plaintiff‘s complaint
`g this motion are attached
`which lacks grounds. Defendant’s affidavit and exhibits supportin
`
`‘ herewith.
`
`I.
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`PARTIES AND BACKGROUND
`
`David Shymatta is the owner of the registered trademark Cell Junkie, registration number
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`

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`Case 2:11-cv-00846-SRB Document 10 Filed 07/29/11 Page 2 of 56
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`<j—
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`3,351,212 in the materials that are the subject of this action. A copy of the federal certificate of
`trademark registration attached hereto. Exhibit A
`P
`3.
`Upon information and belief, Plaintiff Michael Papillon is a resident of Arizona with his
`address or principal place of business at 4216 East Desert Marigold Drive Cave Creek, Arizona
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`85331. Upon information and belief, Michael Papillon operates his company The Cell Phone
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`Junkie and uses the mark The Cell Phone Junkie in connection with numerous websites that
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`includes activities such as retail and reviews in the cell phone industry.
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`4.
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`As part of it’s business in the cell phone industry, Cell Junkie is known for retailing cell
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`phone related products and producing custom designs for cell phone covers. Cell Junkie carries
`a wide array of cell phone products for the marketplace and provides services and products also
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`to church and religious marketplaces both physical and online.
`5.
`Cell Junkie is registered for use with cell phones devices, cell accessories and services as
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`it relates to retail stores and services under international class 35. Defendant’s mark Cell Junkie
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`as used in Class 35 includes not only retailing of products, but also the means to advertise and or
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`sell the products. Use of the Cell Junkie mark as it relates to electronic devices and accessories
`in retail and store services is many. A brief list would include, but not limited to business
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`services, communications services, advertising, reviews, entertainment, NBA, NFL, Disney,
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`accessories such as ring tones, fashion and sports accessories, hands free, car chargers, batteries,
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`reception boosters, covers, cases, cell phone parts, screen protectors, and holograms.
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`II.
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`6.
`
`PLAINTIFF’S ACTION AGAINST DEFENDANT IS FRIVOLOUS
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`Defendant never granted Plaintiff permission to use his registered mark Cell Junkie.
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`Defendant first sent a letter to Plaintiff on or about February 5m’ 2010 requesting that Plaintiff
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`Papillon cease and desist use of Defendant’s registered trademark CELL JUNKIE. Defendant
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`did not send the letter through an attorney but sent it personally.
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`7.
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`Defendant’s letter described certain activities of Cell Junkie and informed Plaintiff of his
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`

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`Case 2:11-cv-00846-SRB Document 10 Filed 07/29/11 Page 3 of 56
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`wrongdoing as it related to the infringement ofthe registered mark Cell Junkie. Cell Junkie had
`moved prior to sending the letter and at that time had not updated it’sAaddress at the USPTO,
`which it did shortly after via its counsel. Defendant’s letter to Mr. Papillon requesting
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`cooperation did therefore include Shymatta’s contact infiiurriation, address and phone number.
`8.
`Defendant did not file a lawsuit for infringement against Plaintiff Papillon on Feb.5,
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`2010, though he could have. Defendant chose rather to send a letter requesting cooperation with
`his contact information. This is very relevant because it shows the manner in which Defendant
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`for
`Mr. Shymatta conducted himself in the proceedings. This clearly opened the door
`communication between parties or opened the door to some sort of negotiation, or in the least a
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`reply. Defendant never received a response or communication from P1
`Plaintiff and his attorney instead chose to file a cancellation petition against Defendant and Mr.
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`aintiff whatsoever.
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`Shymatta was billed several thousand dollars in litigation costs.
`9.
`Apparently Plaintiff Papillon chose to use the address that was on the USPTO site instead
`of contacting Shymatta using the address his letter provided. It was not until sometime later that
`Shymatta discovered on the USPTO website that there was an action that had been filed against
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`his registered mark CELL JUNKIE and was well under way.
`.10.
`Cell Junkie since its inception has used its registered mark in numerous venues as it
`relates to interstate commerce. Around the time Plaintiff falsely alleges Defendant abandoned its
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`mark, Cell Junkie was being used on more than one marketplace and or website as proven here.
`11.
`Papillon’s complaint
`is packed with numerous statements that are disproved and
`contradicted by the evidence itself. Papillon states in his complaint at paragraph 10, “Defendant
`answered the petition for Cancellation denying abandonment and submitting evi
`of which is dated after April of 2010, which is after the Petition for Cancellation was instituted.
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`dence of use, all
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`A true and correct copy of the Answer to the Petition for Cancellation is attached hereto as
`
`

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` __
`ase 2.11 cv 00846 SRE‘ Document 10 Filed 07/29/11 Page 4 of 56
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`Exhibit D.” This is an outright falsehood, the evidence in the Answer to the Petition for
`April, 2010. How is it possible
`Cancellation has dates ranging from 2008 to January 2010 and
`Plaintiffwould think the court would not even look at the actual dates on the evidence.
`12.
`Plaintiff states, “Defendant answered the petition for Cancellation denying abandonment
`r April of 2010], which is after the
`and submitting evidence of use, [all of which is dated afte
`Plaintiffs exhibits as filed are 140 pages. By looking at
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`Petition for Cancellation was instituted.”
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`of 140 is a document from Exhibit D that
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`Exhibit D from the court’s C'...’/ECF “Page 32”
`Plaintiff filed. The date at the top shows April 22, 2010. Page “33” of 140 also shows a date in
`“34 and 35” do also show April 2010. Page “37” ofExhibit D shows a
`so on. Plaintiffs attempt to
`
`April 2010. In fact pages
`date of January 07, 2010, “Paid with Paypal on Jan 07, 2010” and
`
`distort the evidence is simply wrong.
`
`13.
`
`Plaintiff filed a petition to cancel Defendant's registered mark Cell Junkie alleging the
`ary of the alleged proof that
`
`Plaintiff provided. First Plaintiff did “not”
`[included his own website address]
`, cel1junkie.com in his cancellation petition yet Plaintiff
`xt, Plaintiff only included the [first page]
`thecellphonejunkie.com in the cancellation petition. Ne
`thousands of pages. Plaintiff did not even include the second
`or third page results. Even so Plaintiffs Google search did end up finding a result for Cell
`
`of Google results out of numerous
`
`Junkie on the very first page of the search.
`Plaintiff
`
`could
`
`include
`
`his
`
`own website
`
`address
`
`t it benefit Plaintiff to look for the mark Cell Junkie in a
`address celljunkie.com? Would no
`, website it seeks to prove was aoandoned or parked and show proofofthat?
`
`

`
`Case 2:11—cv-00846-SRB Document 10 Filed 07/29/11 Page 5 of 56
`
`15.
`
`In the cancellation petition Plaintiff filed, Plaintiff did “not” serve discovery on
`
`Defendant Cell Junkie by the due date. However Defendant Cell Junkie “did” serve discovery on
`
`Plaintiff Mr. Papillon in which he asked details regarding Plaintiffs search in the cancellation
`
`proceeding, but shortly before Plaintiffs discovery was due the Trademark Trial and Appeal
`board respectfully suspended tlr proceedings due to the pending infringement lawsuit, and Cell
`
`Junkie did not receive the requested discovery.
`
`16.
`
`Defendant recently got an email from Plaintiff Papillon’s attorney Mr. Titus dated July
`
`11, 2011 recommending the Trademark Trial And Appeal Board stay the proceedings at this
`
`time. Defendant understands this to mean Plaintiffs attorney thinks the cancellation petition
`
`against Cell Junkie should remain or stay suspended at this time. Thus, Defendant Cell Junkie
`
`has still not obtained the requested discovery involving Plaintiffs cancellation search. A true
`
`copy of that letter attached here Exhibit B.
`17.
`Plaintiffs (Complaint ‘ll 11), makes other statement(s) that are disproved by the evidence.
`
`Plaintiff
`
`states,
`
`“On information and belief,
`
`as of May 27, 2010 the web site
`
`<www.celljunkie.com> had been “parked”
`
`by Go Daddy since March 6, 2007 until at least
`
`November 28, 2009”... Papillon fiirther states, “On information and belief, [Defendant only
`
`began to use the website after he became aware of the Cancellation action. Such use is not
`sufficient to overcome a presumption of abandonment.]” Exhibit C attached hereto shows proof
`celljunkie.com was in use as far back as August 2009. The evidence clearly disproves Plaintiffs
`
`abandonment claim and Papillon has no action against Cell Junkie whatsoever.
`
`18.
`
`Plaintiffs allegation is 2.. outright falsehood that, “On information and belief, Defendant
`
`only began to use the website after he became aware of the Cancellation action.” To fiiither
`buttress the fact that Defendant did not wait to begin to use the website celljunkie.com until after
`
`

`
`Case 2:11-cv—00846—SRB Document 10 Filed 07/29/11 Page6of56
`
`«
`
`the cancellation action was filed, and so that there is no
`shows the court Exhibit D which is a redacted email correspondence dated August 27,‘ 2009
`
`question of that whatsoever, Defendant
`
`between eBay and Defendant. Here Defendant directs eBay to view the celljunkie.c
`relating to a infringement matter. Defendant highlighted the relevant parts of the email
`
`om website
`
`document.
`
`Using the mom and pop type structure Cell Junkie has been able to take time in
`19.
`representing its products, hand hold its customers as it were, providing quality customer service.
`Defendant’s registered copyrighted photos are some of the best on the intemet. Defendant has
`spent an inordinate amount ofhours as it were working on and enhancing its materials.
`20.
`On numerous occasions over the years individuals or sellers would copy or steal Cell
`Junkie’s watermarked photos and use them illegally on the intemet. In addition one of
`
`Defendant’s copyrighted custom designs was knocked off and being sold all over the intemet
`illegally. Defendant finally decided to take legal action and clean house as it were and Cell
`Junkie filed in court and prevailed. Defendant ended up sending the letter to Plaintiff as well as
`part ofthe house cleaning. Shymatta was also concerned: as to the use ofhis mark and reputation
`whereas Papillon used the mark on a website that encouraged illegal activities.
`21.
`Mr. Shymatta did not “scramble” to make his company Cell Junkie, nor is it an overnight
`“sham” as Plaintiff falsely asserts, such an assertion is an insult. Papillon’s suit seeks to harass
`and improperly punish Defendant Mr. Shymatta who works hard to make a living, lawfully
`
`providing services and selling cellular products providing for his family.
`22.
`Mr. Shymatta put a considerable amount oftime into building, listing and promoting Cell
`Junkie and its products over the years. This year sales have slowed in so much Mr. Shymatta
`needed outside financial help just to pay the bills. This is not due to Mr. Shymatta's lack of
`
`

`
`Case 2:11-cv-00846-SRB Document 10 Filed 07/29/11 Page 7 of 56
`
`effort. For example in 2010 Cell Junkie again introduced new custom designs to the marketplace
`
`however sales have been slow. Another large part of the drop in sales is due to the unnecessary
`legal actions Mr. Shymatta has had to respond to, and the amount oftime it has taken away from
`his time operating his company. Exhibit E attached hereto is from computer screen shots that
`show further use of the mark Cell Junkie in commerce and that the mark was not abandoned.
`
`23.
`
`Plaintiffs (Complaint 11 14) refers to evidence in his Exhibit G that is not there. Plaintiff
`
`“On or about June 1, 2010, through his attorney, Plaintiff offered to resolve his
`states,
`differences with Defendant by means of a “walk away” agreement in which Plaintiff would
`dismiss the Cancellation proceeding and Defendant would agree not to oppose Plaintiffs
`
`Application. Defendant admits that his own attorney recommended this course of action to him.
`(See Exhibit G).” Exhibit G does not even mention the word attorney or recommended and
`contains no such admission from Mr. Shymatta whatsoever. How is it possible Plaintiff can
`
`attempt to distort the evidence to this extent, this conduct is wrong and improper.
`24.
`Defendant was made aware that Mr. Papillon would stipulate to dismiss his action for
`ark The
`
`cancellation against Mr. Shymatta in exchange for a consent to the registration of his in
`Cell Phone Junkie. Shymatta never
`through these proceedings stated that his attorney
`al whatsoever. Plaintiffs (Complaint 1l 14) admits that it was
`
`recommended any offer or propos
`
`not until on around June 1, 2010 that Plaintiff Papillon made any sort of offer 0
`
`r so‘ called
`
`agreement, which was afier Shymatta had an attorney answer the cancellation petition.
`25. Why did not Mr. Papillon or his attorney make any offer or proposal before the
`cancellation proceeding, or before Mr. Shymatta’s attorney answered the trademark cancellation
`
`petition? Shymatta could not afford to litigate such a proceeding so he took over pro se.
`26. ‘
`Plaintiff waited till after he received Mr. Shymatta's cease and desist in February 2010 to
`
`

`
`Case 2:11-cv-00846-SRB Document 10 Filed 07/29/11 Page 8 of 56
`
`file for a application to register the Cell Phone Junkie mark, which is several years after Cell
`
`Junkie had been in business. Moreover Mr. Papillon’s application itself has a first use in
`
`commerce date well afier Mr. Shymatta's date of first use. Plaintiff Papillon should of taken the
`
`federally registered trademark CELL JUNKIE. The fact is that Mr. Papillon’s mark The Cell
`
`Phone Junkie is not a registered mark at all. The fact is that Mr. Papillon’s mark THE CELL
`
`PHONE JUNKIE includes Mr. Shymatta registered mark CELL JUNKIE in its entirety.
`
`27.
`
`Plaintiffs complaint at paragraph 23 Plaintiff asserts that there is no likelihood of
`
`confusion ‘between Plaintiff’s mark THE CELL PHONE JUNKIE and Defendant's registered
`
`mark CELL JUNKIE.
`
`28.
`
`Papillon has stated that The Cell Phone Junkie is “very small” and “Papillon’s the TCPJ
`
`website is a hobby....”. Papillon’s affidavit attached hereto Exhibit I states “I have had this
`
`hobby for at least a decade.” Papillon’s reply briefto dismiss stated his primary source ofwealth
`
`is from real estate, “He has a career as the manager of large commercial properties in Arizona”.
`
`29.
`
`Exhibit F shows that by 2008 Plaintiff had been on NBC, and The Cell Phone Junkie had
`
`a multi state telephone contact system “call us from anywhere in the country!” with phone
`
`numbers in Los Angeles, New York, Arizona, Chicago, Minn