Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA406313
`ESTTA Tracking number:
`04/29/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92053495
`Plaintiff
`Isotonic OPC Antioxidants, Inc.
`SENGEN SUN PHD
`ISOTONIC OPC ANTIOXIDANT INC
`8838 LA CAMESA STREET
`SAN DIEGO, CA 92129
`UNITED STATES
`info@amerinutra.net
`Motion for Summary Judgment
`Sengen Sun, PhD
`info@amerinutra.net
`/Sengen Sun/
`04/29/2011
`Motion for ACR by Petitioner.pdf ( 18 pages )(6030775 bytes )
`Attachment_4.pdf ( 14 pages )(515632 bytes )
`Attachment_5.pdf ( 1 page )(84096 bytes )
`Attachment_6.pdf ( 24 pages )(499731 bytes )
`Attachment_7.pdf ( 1 page )(215769 bytes )
`Attachment_8.pdf ( 1 page )(148890 bytes )
`Attachment_9.pdf ( 4 pages )(45000 bytes )
`Attachment_10.pdf ( 4 pages )(111227 bytes )
`Attachment_11.pdf ( 2 pages )(393727 bytes )
`Attachment_12.pdf ( 1 page )(360860 bytes )
`
`
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA406313
`ESTTA Tracking number:
`04/29/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92053495
`Plaintiff
`Isotonic OPC Antioxidants, Inc.
`SENGEN SUN PHD
`ISOTONIC OPC ANTIOXIDANT INC
`8838 LA CAMESA STREET
`SAN DIEGO, CA 92129
`UNITED STATES
`info@amerinutra.net
`Motion for Summary Judgment
`Sengen Sun, PhD
`info@amerinutra.net
`/Sengen Sun/
`04/29/2011
`Motion for ACR by Petitioner.pdf ( 18 pages )(6030775 bytes )
`Attachment_4.pdf ( 14 pages )(515632 bytes )
`Attachment_5.pdf ( 1 page )(84096 bytes )
`Attachment_6.pdf ( 24 pages )(499731 bytes )
`Attachment_7.pdf ( 1 page )(215769 bytes )
`Attachment_8.pdf ( 1 page )(148890 bytes )
`Attachment_9.pdf ( 4 pages )(45000 bytes )
`Attachment_10.pdf ( 4 pages )(111227 bytes )
`Attachment_11.pdf ( 2 pages )(393727 bytes )
`Attachment_12.pdf ( 1 page )(360860 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Isotonic OPC Antioxidants, Inc.
`
`
`
`
`Petitioner,
`
`Cancellation No. 92053495
`
`vs.
`
`Horphag Research Management S. A.
`
`Registration No. 1769633
`
`Applicant
`
`PETITIONER’S MOTION FOR ACR
`
`Pursuant to TTAB Rule 2.127(e)(2), Petitioner, Isotonic OPC Antioxidants, Inc. a privately-held
`
`USA domiciled State of California corporation under proper and lawful authority, hereby makes
`
`the following motion for Accelerated Case Resolution (ACR), regarding Cancellation No.
`
`92053495, filed against Horphag Research Management S. A., a Swiss business entity, through
`
`its U.S. legal counsel.
`
`Petitioner hereby states the following background, points and authority to this Motion, and
`
`hereby makes a formal request for ACR, and provides proper notice and service of Motion for
`
`ACR:
`
`Background and Points
`
`1. Petitioner is of knowledge and belief, in its nearly 30-year scientific expertise, that any one
`
`has the legal right in free use of public scientific information, as restricted by the patent and
`
`copyright laws. Using its own languages and words in Petitioner's website, Petitioner, therefore,
`
`
`
`cited some scientific publications on biological and physiological studies of grape seed, pine
`
`bark, and red wine extracts from a variety of material sources, including Pycnogenol ® pine
`
`bark extract, which are not protected by any patents. Petitioner is of belief that this practice does
`
`not violate any applicable laws.
`
`2. Registrant, via its US legal counsel, first contacted Petitioner by e—mail on November 19,
`
`2010, followed by a mail. Its legal counsel formally declared “We are intellectual property
`
`counsel to Horphag Resarch Management, S.A. (“Horphag”)” in the first sentence of the letter
`
`(Exhibit 4 in ANSWER filed on February 18). This declared a prima facie designation of
`
`Registrant’s legal counsel, who is the exact legal equivalence of Registrant shown in the USPTO
`
`electronic system. This legal counsel acquired all the obligations as the legal representative for
`
`the registrant, by making such a declaration.
`
`In the letter, Registrant demanded that Petitioner remove and/or revise the citations of these
`
`publications, claiming that Petitioner infringes and dilutes the trademark Pycnogenol ®. In the
`
`on-going communications of this legal dispute, Petitioner sent
`
`totally 6 or 7 e-mails to
`
`Registrant’s legal counsel to argue that Petitioner does not violate any applicable laws. Most of
`
`these communications are attached in the ANSWER filed by Registrant on February 18, 2011.
`
`3. Petitioner filed this petition for cancellation on January 9, in belief that scientific information
`
`must be described based on scientific/generic names, not trademarks. Scientific literature, as
`
`public property in the public domain must be free from massive promotions of trademarks in
`
`favor of particular commercial companies, and must be made easy for any one in this world to
`
`use freely, as restricted only by patent and copyright laws. In Petitioner’s knowledge, Lanheim
`
`Trademark Act does have a role in restricting how public scientific information is used.
`
`
`
`4. Since the start of this petition filing, Petitioner was confused by the unusual and wrong uses
`
`of English languages in TTAB electronic filing system and in the TTAB rules, related to the
`
`Proof of Service to a defendant. For two examples:
`
`(1) “Section 2.111(a)
`
`is amended to specify that proof of service on the owner of the
`
`registration, or
`
`the owner’s domestic representative of record in the USPTO,
`
`at
`
`the
`
`correspondence address of record in the USPTO, must be included with the petition for
`
`cancellation and fee.” (http://www.uspto.gov/trademarks/process/appeal/RULES08_01_O7'.pdf,
`
`Page 42247)
`
`(2) “113.03 Elements of Certificate of Service
`
`The Board will accept, as prima facie proof that a party filing a document in a Board inter partes
`
`proceeding has served a copy of the document upon every other party to the proceeding, a
`
`statement signed by the filing party, or by its attorney or other authorized representative, clearly
`
`stating the date and manner in which service was made.”
`
`The word “proof” is extensively used in the TTAB rules for service of documents to the other
`
`party. Strictly say, no one in this world has ever followed these rules for following reasons:
`
`Strictly say, a process to make a petition in the reality includes two steps. Step (1): A petition
`
`must be filed the first; Step (2): the defendant is served with the signed petition, which must be
`
`either dropped by the petitioner in a carrier’s office or picked up from the petitioner’s office by a
`
`carrier. Step 2 cannot be done before Step 1 without the signature. If a “proof ’ or “prima facie
`
`proof” of service is required, there must a third step for the “proof” preparation after Step (2) is
`
`completed.
`
`Strictly say, the PROOF (or EVIDENCE, or prima facie PROOF) of service does not exist at the
`
`moment of filing. “Proof” is only for existing things and for events that happened before or has
`
`
`
`taken place immediately earlier. Any future human action cannot be proved or verified before it
`
`takes place, and prima facie PROOF does not exist. Any on-going human action cannot be
`
`“proved” for its ultimate fate, and a prima facie PROOF does not exist until the action is
`
`completed. There is not a legal system in this world, which acquires the authority to define that
`
`“proof” is not “proof”. This word “proof” or phrase “prima facie proof” is well defined in
`
`linguistic dictionaries. Concisely, a rule may require a petitioner to file a “Guarantee of Service”
`
`or “Prediction of Service”. “Proof” and “guarantee” are two different words of divergent
`
`meanings, one for the past event or existing things, and the other for the on—going and future
`
`events and things.
`
`Strictly say, all the documents I received from Registrant in this current case do not have a
`
`“Proof of Service” in any of them, as written by the TTAB Rules, even though a Certificate of
`
`Service is enclosed in each mailing.
`
`If you accept the Certificate as Proof as required by the
`
`rules, you are defining that “proof” is not “proof”. Strictly, it is a lie to say “service was made”
`
`or “has been served”, while it has not been made yet. Registrant filed such as a lie of “was
`
`served” with its ANSWER on February 18, 2011. Strictly say, if the English language rules are
`
`not followed, any laws and rules are invalid. Petitioner violated nothing if we argue strictly. No
`
`one is actually that strict.
`
`It
`
`is very important
`
`to understand each other
`
`for something
`
`unimportant.
`
`5. Petitioner wishes to admit the fact that the symbol ® is missing accidentally in many places in
`
`the initial filing in the txt-ASCII file due to the file conversion from a Word file. These errors
`
`were caused due to the flaws of the TTAB electronic filling system. The initial petition was
`
`prepared in MS Word. At the final moment of filing, the Word file had to be converted to txt
`
`file, causing some errors. It would be extremely unfair if a new member in filing a petition is
`
`
`
`treated too harsh, while others including Registrant and the TTAB rules can be excused from
`
`accidental and unintended mistakes.
`
`On the other hand, for more than 3 decades in scientific literature, “Pycnogenol” has been
`
`massively used without being followed by the symbol ® or without the part of “nogenol ®”
`
`(abbreviated as PYC). A generic name may be abbreviated, while a mark is no longer a mark or
`
`not the same mark, if it is abbreviated for whatever reasons. The excuses for the missing parts of
`
`“®” and “nogenol ®” are those for its 3 decades—long generic use in science. If Registrant wants
`
`to find an excuse for that (generic use for 3 decades), Petitioner would have a plenty of excuses
`
`for not using symbol ® after the word “Pycnogenol”. Improperly intended uses and unintended
`
`mistakes are totally two different things.
`
`6. Petitioner filed the petition for cancellation on January 9, 2011, and the proceeding was
`
`instituted on January 11, 2011. Registrant filed its answer to the petition on February 18.
`
`7. On February 21, 201 1, Petitioner made a filing of “Technical Complaints”, which appears to
`
`be a reply to the ANSWER. But Petitioner personally thinks that it is just co-incidental to fit to a
`
`reply to the ANSWER. Petitioner thought about reporting the problems of wrong uses of English
`
`in the TTAB rules even before the ANSWER was filed by Registrant. This filing was mainly
`
`related to the confusing Service requirement with an English grammatical error, which
`
`invalidates the sworn statement in TTAB electronic filling system to my personal opinion. It is
`
`understandable and acceptable to Petitioner that this filing of “Technical Complaints” “will not
`
`be considered by the Board”.
`
`8. Registrant’s legal counsel and Petitioner held the discovery conference on March 21, 2011, as
`
`required.
`
`
`
`9. Petitioner made two rounds of disclosures to Registrant. The first round of disclosures was
`
`made on March 21, 2011. The second round of disclosures was made on April 11, 2011.
`
`Registrant made the initial disclosures, which Petitioner received on April 23, 2011. The
`
`disclosures by the two parties are not attached with the current filing in order to reduce the file
`
`size.
`
`Significance of This Petition
`
`10.
`
`I,
`
`the Petitioner’s correspondence and corporate officer, have about 30 years scientific
`
`experience in education, teaching and research. My experience includes 14 years in research and
`
`management in the FDA—regulated industries since 1997 when I started to work at Johnson &
`
`Johnson in Raritan, New Jersey. I am co-inventor of 6 drug-related patents, and published about
`
`30 scientific articles in reputed journals such as Nature magazine. An example of my
`
`publications is in a journal called Expert Opinions of Therapeutic Targets (2008 Feb;l2 :239—
`
`51), and with an article title of “Bone disease drug discovery: examining the interactions
`
`between osteoblast and osteoclast”. My background and experience provide me the sufficient
`
`confidence in correct use and writing of scientific publications with nearly 30 years experience,
`
`fully in compliance with all applicable laws and rules.
`
`I have not been convinced that my
`
`understanding of intellectual property laws in the scientific field is wrong. If a person of strong
`
`scientific background like me does not know how the intellectual property laws work, the laws
`
`need to be said more clearly.
`
`I expect a valuable guidance from TTAB — the authority of
`
`intellectual property laws, by filing this petition.
`
`11. This case is far beyond one of the commercial interests of the two parties involved. A
`
`decision on this case would be of national
`
`interest
`
`in guiding the science—based business
`
`practices in clear languages in the whole nation. A decision would have a profound impact on
`
`
`
`directions of science in the world, in terms of science for commercial interests. Petitioner has a
`
`faith that the integrity of science must be maintained with commercial interests protected by
`
`patents, not trademarks. With strong scientific expertise in its organization, Petitioner wishes to
`
`warn that science is in danger to be smashed into pieces according to trademarks for commercial
`
`interests. And science is in danger to be downgraded to trash if it is conducted and reported with
`
`biased information for seams of trademark promotion with the influence of advertising money.
`
`PLEASE SAVE SCIENCE!
`
`Legal Merits of This Petition Other Than Procedural Issues
`
`12. Petitioner wishes to emphasize the most outstanding legal issues for this case, related to
`
`intellectual property laws. The first issue is Whether it is legitimate that a commercial company
`
`is spamming maliciously the scientific literature using its trademark. The fundamental chemical,
`
`physical, biological and physiological properties of matter/chemicals discovered in science are
`
`not specific to certain trade names, but have general meaning in terms of scientific/generic
`
`names. Since the word “Pycnogenol” was first coined by Professor Masquelier more than 3
`
`decades ago, it and its abbreviated form PYC have always and extensively been used as a noun
`
`in referring a class of chemicals for scientific research, regardless the symbal ® is used or not.
`
`Pycnogenol and PYC have always been used to replace the scientific/generic names at every
`
`possible spot
`
`in the related publications. A full article showing this use is shown in
`
`Attachment_4 as an example.
`
`The fact should be noted that the word “Pycnogenol” existed in the scientific literature as a
`
`scientific/generic name since 1979 before it became a registered trademark in US in 1993, as
`
`mentioned in Attachment_4. Petitioner has the legal right in fair use of this word in Petitioner’s
`
`website for the purpose of brief description of the historical fact without using the symbol of ®.
`
`
`
`In fact, the word “Pycnogenol” is used but extremely rarely used in petitioner’s giant website for
`
`this purpose of brief historical fact description.
`
`It is clear that Registrant has been making massive efforts for about two decades in enforcing the
`
`spamming of the scientific literature using the mark, in attempt to use the mark to block its
`
`commercial competitors from citing the public scientific information. Registrant is claiming
`
`“unclean hands” for any competitor like us to excise the legal right in fair use of the public
`
`scientific information.
`
`Science is science. Our professor and students in colleges/universities don’t use trademarks to
`
`classify
`
`chemical,
`
`biological
`
`and
`
`physiological
`
`properties of matter/chemicals,
`
`but
`
`scientific/generic names.
`
`13. The use of public scientific information is only restricted by the patent and copyright laws,
`
`not by Lanheim Trademark Act. As the word “Pycnogenol” has been extensively used to replace
`
`scientific/generic names in science, the public, including Registranfs competitors have acquired
`
`the factual legal right in use of the word “Pycnogenol”. It has been extensively genericized for
`
`about 3 decades in science.
`
`14. The scientific publications using Pycnogenol ® pine bark extract as the material source for
`
`the last 3 decades are mainly about the drug properties of underlying matter/chemicals. Most of
`
`the studies conducted are not about dietary supplement, regardless that the phrases “dietary
`59
`GS
`supplement , nutritional benefit”, etc. are used or not.
`
`According to the US Congress, dietary supplements are products to address the health issues
`
`related to nutritional deficiency, while nutritional deficiency is not or extremely rarely discussed
`
`in these scientific publications. Pycnogenol ® -related publications are almost all (or
`
`exclusively) about general disease treatment and prevention. For two examples:
`
`
`
`(1) “CLINICAL STUDY: Pycnogenol® significantly lowered LDL and increased HDL in 155
`
`menopausal women during a treatment period of 6 months.
`
`Yang HM, Liao MF. Zhu SY, Liao MN, Rohdewald P
`
`A randomized, double-blind, placebo-controlled trial on the effect of Pycnogenol® on the
`
`climacteric syndrome in peri-menopausal women.
`
`Acta Obstet Gynecol Scand 86: 978-985, 2007”
`
`(2). “CLINICAL STUDY: Pycnogenol® reduces blood pressure in hypertensive patients not
`
`taking medication. Hosseini S, Lee J, Sepulveda RT, Rohdewald P, Watson RR
`
`A randomized, double—blind, placebo-controlled, prospective, 16 week crossover study to
`
`determine the role of Pycnogenol® in modifying blood pressure in mildly hypertensive patients.
`
`Nutr Res 21: 1251-1260, 2001”
`
`These two examples
`
`indicate that
`
`those more than 200 published papers are about
`
`Pharmaceutical Preparations of disease treatment and prevention, where Pycnogenol is not a
`
`lawfully registered trademark according to Lanham Trademark Act and FDA regulations.
`
`Dietary Supplement and Pharmaceutical Preparations are in two distinct sub-classes in the
`
`classification in the trademark law. The word “Pycnogenol” and its abbreviated forms are
`
`extensively used as a generic name of an unproven drug for disease treatment and prevention.
`
`Drug properties do not belong to either a drug trademark or a dietary supplement trademark, but
`
`to a scientific/generic name, as a common sense in the pharmaceutical industry.
`
`Even a drug trademark can only be allowed in use for description of formulation properties,
`
`which are specific to the trademark. It is required by FDA regulations that fundamental drug
`
`properties be described by generic names, not trademarks.
`
`
`
`The ANSWER by Registrant features exclusive claims of the 200+ publications of unproven
`
`drug effects for Pycnogenol ® dietary supplement. Look at this sentence: (Page 13 in the
`
`ANSWER filed by Defendant):
`
`“Registrant avers that the Horphag-sponsored PYNOGENOL ® Studies are not applicable to
`
`products not containing PYNOGENOL ® French maritime pine bark extract, including
`
`Patitioner’s Oligopin ® ingredient and French Glory ® Isotonic OPC products.”
`
`Based on Petitioner’s standard, this is a blunt attack on science. They have no ideas what
`
`“science”, “sponsor” and “study” really mean! They have no knowledge in science, drug
`
`development and related laws. It is true that these studies of drug properties do not describe
`
`Petitioner’s products and/or ingredients, and Petitioner makes all possible disclaimers in its
`
`website that Petitioner’s products are merely dietary supplement, not sold for drug properties for
`
`disease treatment and prevention, as required by Dietary Supplement Health and Education Act
`
`(DSHEA) 1994.
`
`Currently, Registrant spends about US$15 million annually in targeting scientific literature as
`
`an advertising platform to decorate its dietary supplement product as drugs, while it is claiming
`
`“sponsor” of science. Most of these publications are accessible from the US National Institute of
`
`Health library and website (Attachment_5)
`
`15. Registrant wants to confuse consumers between a dietary supplement and an OTC drug by
`
`publishing “MONOGRAPI-I FOR PYCNOGENOL” (Attachment_6). According to FDA
`
`regulations, only an OTC drug is associated with a MONOGRAPH. This MONOGRAPH is a
`
`scam paid by Registrant (Attachment_7), and was made and distributed in USA (Attachment_8).
`
`Clinical trials of rough and controversial data on disease treatment and prevention are compiled
`
`in “MONOGRAPH FOR PYCNOGENOL” (Attachment_6), where “pycnogenol” is used as a
`
`
`
`generic name for an unproven drug. Here is a quote from Page 3 of the MONOGRAPI-I (the last
`
`paragraph):
`
`“To summarize the clinical findings, Pycnogenol may help decrease edema formation in the
`
`lower
`
`legs, such as in people with chronic venous insufficiency. Pycnogenol
`
`improves
`
`endothelial function resulting in improved blood circulation, lowered blood pressure in
`
`hypertension, and normalization of platelet coagulability. Pycnogenol has been shown to
`
`improve glycemic control in patients with type 2 diabetes and to improve treatment of diabetic
`
`ulcers. Preliminary studies suggest that Pycnogenol may be beneficial for children with ADHD
`
`and may be a useful adjunct therapy for patients with asthma. Pycnogenol may help reduce pain
`
`associated with menstrual disorders. Several clinical studies report
`
`that Pycnogenol may
`
`improve subjective symptoms of knee osteoarthritis."
`
`Pycnogenol ® is summarized as a drug here for therapeutic uses, not a dietary supplement. This
`
`monograph has been extensively used as a marketing tool for its selling of Pycnogenol ® as
`
`unproven drug in the United States of America. And its sole purpose is as a marketing tool for
`
`selling Pycnogenol ® as unproven drugs.
`
`16. “Pycnogenol ®” is extensively used as a generic name of unproven drugs by NIH.
`
`The National Institute of Health of USA - an US government agency has been extensively using
`
`“Pycnogenol” as a noun without ® in referring a class of chemicals of unproven drug properties
`
`as possible Pharmaceutical Preparation (e.g., Attachment_5, _9 and _10). “Pycnogenol” is
`
`therefore, a generic name of unproven drugs.
`
`17. FDA Warning letters to Pycnogenol: FDA issued several letters starting from as early as
`
`1998, to warn the sellers of Pynogenol ® - containing products, who claimed the disease
`
`benefits. One of them is attached as an example (Attachrnent_11). Those letters indicate that it is
`
`
`
`law-violations for Pycnogenol ® - a dietary supplement product,
`
`to be associated with any
`
`disease benefits. Registrant has never stopped its illegal activities since then and has been
`
`massively using the scientific platform in associating the disease benefits to Pycnogenol ®
`
`permanently.
`
`18. “Pycnogenol ®” is a mark, confined to a dietary supplement product by the law. Decorating
`
`and advertising a dietary supplement product as a drug in any ways are federal crimes according
`
`to the Federal Food, Drug, and Cosmetic Act [21 U.S.C. § 32l(g)(1)(B)]. This possible crime is
`
`related to a trademark and has lasted for about 2 decades. About two decades long and massive
`
`commercial campaigns attacking scientific literature by Registrant have caused chaotic
`
`confusion among consumers between a dietary supplement product and drugs. Such confusion in
`
`science has a devastating impact on US health care system, and is uncorrectable without
`
`canceling this mark.
`
`Like any citizen in US, TTAB has a shared responsibility and obligation in stopping crimes
`
`regardless of the civil court rules. Crimes have to be investigated and stopped unconditionally.
`
`19. Harassing small business competitors:
`
`Registrant is internationally a giant in the dietary supplement industry with the predominant
`
`market in USA. Currently, it has an annual budget of US$1.5M in promoting its trademark of
`
`Pycnogenol ® in the scientific literature of Pharmaceutical Preparations for disease treatment
`
`and prevention. Based on its strong financial power, it hires one of the most prestigious law
`
`firms in harassing and suppressing US-growing small business competitors like us. They don’t
`
`know how to interpret laws from the Garcia case, and only want to show their strong muscles.
`
`
`
`The Garcia case of the 9”‘ Circuit Court of Appeals was about
`
`the massive trademark
`
`infringements that Garcia conducted in the advertisement of its non-Pycnogenol ® product using
`
`the word “Pycnogenol” massively in its website. A minor issue of the Garcia case involved a
`
`trade book, from which a quote was altered by Garcia. As I told Registrant’s attorney, it is an
`
`irrelevant case. An alteration from one trademark to another is totally a different thing from a
`
`replacement of wrongly used trademark with a generic name as required by the laws related to
`
`science. Nothing is close and nothing is similar. Look at these two paragraphs showing how they
`
`threatened us using something of irrelevance on December 20, 2010 by e—mail (Attachment 2 in
`
`the initial Petition):
`
`“We even provided you with a copy of an opinion from the 9th Circuit Court of Appeals making
`
`it explicit that what you are doing violates the Lanham Act. What the 9”‘ Circuit Court of
`
`Appeals stated in the Garcia case for this precise form of misconduct
`
`is what the law is
`
`regardless of what you may think.
`
`It appears that rather than solving this amicably, you prefer that we file a law suit against you.
`
`Let me assure you we are perfectly willing to do so and will do precisely that if you do not agree
`
`to correct your Websites promptly.”
`
`“regardless of what you may think”! ! 1!!
`
`l was refused for my right to interpret the laws to them
`
`while they don’t know how to interpret. As I said, we have the legal right in the fair use of
`
`scholarly authored scientific publications, and there is not a law that restricts us in the way how
`
`the publications are cited based on the scientific opinions of our PhD scientists (Exhibit 6 in the
`
`ANSWER filed by Registrant).
`
`
`
`Moral Standard in Filing This Petition by Petitioner
`
`20. As a professional scientist, Petitioner’s correspondence and corporate officer, I am doing
`
`legally and morally a right thing in representing my organization to cancel this mark, and I am
`
`making my best effort. This word “Pycnogenol” was ripped off from one of the world-most
`
`prominent scientists — Professor Masquelier in a legal means by this Registrant, who was
`
`Masquelier’s former collaborator. Morally, this word should never have been belonged to this
`
`Registrant. Registrant further has been using the wealth generated from the fame of Professor
`
`Masquelier in messing up science and scientific literature for its greedy financial gains. This was
`
`not intended by the creator of this word — Professor Masquelier.
`
`Morally, Petitioner wishes to condemn the rip—off of this world prominent scientist, even though
`
`it was in a legal way. Morally, Petitioner wishes to criticize those scientists, scholars, and some
`
`organizations, who bow to money from the commercial giant and have been flooding scientific
`
`literature with the unclean trademark.
`
`Comment on RESPONDENT’S MOTION FOR JUDGEMENT ON THE PLEADINGS
`
`21. On April 26, 2011, while the current PETITIONER’S MOTION FOR ACR was being
`
`written, Registrant
`
`filed RESPONDENTS MOTION FOR JUDGEMENT ON THE
`
`PLEADINGS, which reflects that Registrant’s attorneys have incorrect understanding of the
`
`TTAB system, the intellectual property laws, and FDA regulations. They are hoping that TTAB
`
`would blindly punish any new one who made some unintended errors in the procedures, and
`
`take a chance that this case could be killed before the Board takes a look at the disclosed factual
`
`evidence of the claims.
`
`After reading the documents in the TTAB website for 2-3 weeks, Petitioner realizes that the
`
`TTAB system is set up exclusively for the purpose of high working accuracy and efficiency, and
`
`
`
`for the purpose of providing maximized convenience for users of the TTAB system. The
`
`BOARD’S COMMUNICATION on March 1, 2011 in this case has such a quote: “it is also true
`
`that the Patent and Trademark Office is justified in enforcing its procedural deadlines.”
`
`Petitioner fully agrees with the point in this quote. You cannot punish some one who provides
`
`improved working efficiency and accuracy in a case.
`
`Petitioner served the petition document accurately to Registrant’s truly domestic legal counsel,
`
`who received the document on January 14, 2011, not later than or maybe 2-3 days earlier than
`
`the expected date if the document had been sent to Switzerland even on January 10. What were
`
`the damages that Petitioner caused to the progress of this proceeding?
`
`Information and Documents for Summary Judgment
`
`22. This case involves three major elements: evidences, arguments and a final Board decision.
`
`Evidences are related to how the mark is used in the public, where the mark is used in the public,
`
`when the mark is used in the public, and whether the mark has been massively altered or
`
`abbreviated when used in the public. The evidences must be in the public domain.
`
`Petitioner bears the full responsibility to prove this case by evidences. There is no reason to
`
`believe that Registrant has any valuable information. In the United States of America, who
`
`really cares whether this mark is used properly or not
`
`in Registrant’s head offices in
`
`Switzerland? Petitioner does not even know which world is Switzerland located. Any
`
`information of the proper use cannot be used to deny the information of the improper use. A
`
`judgment will be based on whether the information for the improper use is substantial and
`
`convincing.
`
`Registrant already filed a plenty of arguments for proper use of the mark. All the arguments
`
`indicate irreconcilable understandings of intellectual property laws between the two parties. A
`
`
`
`judgment from the board is the only way to end the arguments from the two parties. There is no
`
`point for unnecessary further discovery on the “information” that Registrant has. Petitioner bears
`
`the full risk for possible failure in presenting convincing evidences.
`
`23. Here is a list of documents for the Board to consider for a summary judgment:
`
`(1) Attachment 1 (in the initial petition filed on January 9, 2011).
`
`(2) Attachment 2 (in the initial petition filed on January 9, 2011).
`
`(3) ANSWER AND AFFIRMATIVE DEFENSES TO PETITION TO CANCEL and all
`
`associated exhibits therein (filed by Registrant on Feb 18”", 2011).
`
`(4) Attachment_4 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(5) Attachment_5 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(6) Attachment_6 (in the current filing, and was disclosed to Registrant on March 21 , 2011).
`
`(7) Attachment_7 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(8) Attachment_8 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(9) Attachrnent_9 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(10) Attachment_10 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(11) Attachment_11 (in the current filing, and was disclosed to Registrant on March 21, 2011).
`
`(12) RESPONDENT’S MOTION FOR JUDGEMENT ON THE PLEADINGS and all
`
`associated exhibits therein (filed by Registrant on April 26, 2011).
`
`(13) Attachment_l2, Notice to Interlocutory Attorney for Request for ACR.
`
`Request for Accelerated Case Resolution (ACR)
`
`24. Pursuant to the Trademark Rules for inter partes TTAB proceedings, effective November 1,
`
`2007, Isotonic OPC Antioxidants, Inc., the Petitioner, respectfully requests that ACR procedures
`
`be instituted in this matter, pursuant to, and in accordance with, all appropriate and governing
`
`
`
`Trademark Rules,
`
`the TTAB Manual of Procedure and other stationary and regulatory
`
`provisions.
`
`25. Petitioner is of the information under the new Trademark Rules for inter partes Board
`
`Proceedings, effective November 1, 2007, “when either party to a Board case concludes that
`
`resolution of the opposition or cancellation proceeding without extensive discovery or trial
`
`periods may be desired, the party should notify the interlocutory attorney.”
`
`The exhibits for this current filing contain a formal written notice on the corporate letterhead of
`
`the Petitioner, Isotonic OPC Antioxidants, lnc., addressed to YONG OH (RICHARD) KIM, the
`
`Interlocutory Attorney currently assigned to this matter, for the ACR request, as shown in
`
`Attachment_l 2.
`
`Signature:
`
`8’;
`
`I[
`
`—._<
`
`Printed Name: Sengen Sun, PhD
`
`President
`
`Isotonic OPC Antioxidant, Inc.
`
`Mailing address: 8838 La Camesa Street, San Diego, CA 92129.
`
`E—mail:
`
`info@amerinutra.net
`
`Date: April 29, 2011
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`Isotonic OPC Antioxidants, Inc.
`
`Petitioner,
`
`Cancellation No. 92053495
`
`Horphag Research Management S. A.
`
`Registration No. 1769633
`
`Applicant
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing PETITIONER’S MOTION FOR
`
`ACR, is being sent Via USPS Priority Mail to Addressee, postage prepaid, this 29”‘ day of April,
`
`2011, in an envelop addressed to Registrant’s legal counsel as follow:
`
`MARVIN S. GITTES
`
`MINTZ LEVIN COI-IN FERRIS.....
`
`666 3RD AVE, FL 24
`CHRYSLER CENTER
`
`NEW YORK, NEW YORK 10017
`
`DATED, this 29*“ day of April, 2011,
`
` my
`
`Sengen Sun, PhD‘
`President
`
`Isotonic OPC Antioxidant, Inc.
`8838 La Camesa Street, San Diego, CA 92129.
`
`
`
`This article appeared in a journal published by Elsevier. The attached
`copy is furnished to the author for internal non-commercial research
`and education use, including for instruction at the
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
