Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1025085
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`Filing date:
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`12/23/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`92056538
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`Party
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`Correspondence
`Address
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`Defendant
`Cook Collection Attorneys, P.L.C.
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`DAVID J COOK
`COOK COLLECTION ATTORNEYS PLC
`165 FELL STREET
`SAN FRANCISCO, CA 94102
`UNITED STATES
`Cook@squeezebloodfromturnip.com
`415-576-0200
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Other Motions/Papers
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`DAVID J. COOK
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`COOK@COOKCOLLECT.COM
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`/DAVID J COOK/
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`12/23/2019
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`Attachments
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`2019_12_23_14_27_42.pdf(246786 bytes )
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`

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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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`Cancellation No. 92056538
`Registration No. 3257604
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`) )
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`SCOTT R. SMITH, an individual,
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`Petitioner,
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`vs.
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`COOK COLLECTION
`ATTORNEYS, P.L.C., a California)
`corporation,
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`) )
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`Respondent.
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`)
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`REPLY TO OPPOSITION TO MOTION TO DISMISS PENDIND SECOND
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`AMENDED PETITION FILED BY SCOTT R. SMITH
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`COMES NOW, Cook Collection Attorneys, PLC, who advises as follows:
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`Registrant Cook Collection Attorneys, P.L.C. (“Cook”) replies to the assertions in
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`Petitioner Smith’s opposition to Cook’s Motion to Dismiss. Having had his earlier petition
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`dismissed for lack of standing, Smith submits an amended petition that concocts a new basis for
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`standing. Petitioner fails to cure the absence of alleged facts that would demonstrate his real
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`interest in the trademark registration or a reasonable basis for his belief that he will be harmed by
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`continued presence of the registration on the Principal Register. Moreover, Petitioner misuses
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`established legal authority in a vain attempt to cobble together a personal stake and direct injury.
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`I.
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`The Board’s Characterization of the Original Petition Applies Here
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`

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`ln dismissing the original petition to cancel, the Board set out the legal authority and its
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`conclusion that Petitioner lacked standing:
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`Petitioner has failed to plead his standing to allege abandonment by alleging facts which
`would indicate a direct commercial interest in this proceeding and a reasonable belief of
`damage from the registration of Respondent’s mark, such as an interest in using the
`involved mark descriptively in his business or ownership of a registration. See
`Cunningham v. Laser GoifCorp, 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.2000);
`Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185,189-90
`(CCPA 1982); De Walt, Inc. v. Magna Power Tool Corp., 289 F.2d 656 , 129 USPQ 275
`(CCPA 1961); TBMP § 309.03(b).
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`95 TTABVUE 3.
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`Smith now alleges that his standing arises from his domain name registration of
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`SQUEEZEBLOODFROMATURNIPJNFO together with Cook’s past objection to this domain
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`name registration. Smith does not allege any commercial activities to establish standing. A domain
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`name registration does not transform an intermeddler into a person with a real interest in a
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`trademark. The speculative fear of future harm is not a reasonable basis for standing today.
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`A. A Real Interest in a Trademark Registration Requires More Than a Similar
`Domain Name Registration
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`The “real interest” standing requirement obligates Smith to “show a direct injury to himself"
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`arising from the registration. Ritchie v. Simpson, 170 F.3d 1092, 1096 (Fed. Cir. 1999). While
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`there is no requirement to plead “a specific commercial interest, not shared by the general public,
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`in order to have standing,” id., nevertheless these must some commercial interest to be injured.
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`Ritchie does not eliminate the injury threshold entirely. The landscape of direct and personal stakes
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`has previously been set forth in the opening brief and need not be repeated here. Smith does not
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`allege trademark rights or use. Instead, Smith references his domain name registration, which he
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`has maintained throughout the pendency of this proceeding, and his alleged interest to host a
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`“protest site” at that domain name address]
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`There is no content at Smith’s domain name address.
`Inval-
`wanna—mu. a.
`a», a, 2“ an.
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`., [Seams
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`“a,
`/
`Thlssltelstfil rrently avallable.
`1
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`If the mere registration of a domain name creates a protectible, real interest, then standing
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`could readily be manufactured and an action maintained by anyone against any trademark
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`registration.2 The intermeddler prohibition would become meaningless. Domain name
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`registrations are readily obtained on the payment of a fee and without examination. Trademark and
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`domain name registrations exist in separate worlds and serve different purposes: trademarks serve
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`to indicate source while domain names serve an address function on the internet. For the “real
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`interest” requirement to be meaningful, the petitioner must allege and be able to prove an actual
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`injury arising from the maintenance of another’s trademark registration.
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`B. Speculative Fear of Future Harm Does Not Support Standing
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`Aside from a personal stake in the outcome, standing requires an allegation of harm. The belief
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`of damage alleged by petitioner must be more than a subjective belief. Ritchie, 170 F.3d at 1098.
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`The alleged belief of damage from respondent’s registrations must be reasonable. Doyle v. Al
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`Johnson ’3 Swedish Restaurant & Butik Inc, 101 USPQ2d 1780, 1783 (TTAB 2010).
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`Smith does not allege that the trademark registration itself causes him harm. After all, Smith
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`1 Smith’s standing claim is irreconcilable with his claim on the merits. On the one hand, he
`“desires to use the domain name ‘SQUEEZEBLOODFROMATURNIP.INFO’ as a ‘protest site’
`to generate public awareness of Registrant.” 101 TTABVUE 2. This is a judicial admission that the
`public associates the registered mark with Registrant Cook and, therefore, that the mark is valid.
`2 The standing requirement becomes an especially important gatekeeper when the grounds for
`cancellation are not time-barred.
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`has maintained his domain name registration regardless of Cook’s trademark. Instead, Smith
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`alleges that he could be harmed in the future should Cook pursue a district court action for
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`cybersquatting. Smith notes Cook’s reference to cybersquatting in a filing seven years ago and
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`spins this into a claim of current harm. Yet, Smith’s domain name registration is almost eight years
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`old and Cook has not pursued any cybersquatting action nor has Cook sent a cease and desist
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`demand. Smith hasn’t launched any kind of “protest” or “gripe” website. There cannot be any
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`reasonable or objective belief of harm.
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`There is no current controversy concerning Smith’s domain name registration. Thus, he lacks
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`standing.
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`11.
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`Buying and Wearing a Tee-Shirt Isn’t Commercial Activity
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`Smith’s Second Amended Petition fails to identify any commercial activity concerning the
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`mark. His brief in opposition appears to concede this point. While it is true that Smith’s
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`commercial interest need not be distinct from the general public, he has failed to identify any
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`commercial activity. Beyond his domain name registration, Smith alleges only the purchase of a
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`logo and the purchase of a tee-shirt. Unlike the opposer in Rebecca Curtin v. United Trademark
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`Holdings. Inc., Opposition No. 91241083 (December 28, 2018)3, there is no allegation of an
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`existing marketplace for “Squeeze Blood” tee-shins that could be constrained thereby raising
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`prices for Smith. There is no allegation that other manufacturers currently offer “Squeeze Blood”
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`tee-shirts. Smith concedes that he had the tee~shirt and logo custom made, a concession that there
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`is no marketplace or other manufacturers of “Squeeze Blood” tee-shirts.
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`Smith’s posture is more akin to the petitioner in Nobelle. com, LLC v. Qwest Communications
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`International, Inc, 66 USPQZd 1300 (TTAB 2003). In NoBelle, petitioner sought to cancel the
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`3 While this opinion is not precedential, Petitioner has quoted it extensively without attribution.
`Registrant Cook is obliged to reply in the event that the Board finds the opinion relevant to this
`motion.
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`

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`famous Bell logo registration for telecommunication services on grounds that the mark was
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`generic for the services or lacked significance as a mark. The Board stated that “a plaintiff has a
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`real interest in the proceeding [if it] has a present or prospective right to use the term descriptively
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`or generically in its business.” NoBelle at 1304, citing Binney & Smith Inc. v. Magic Marker
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`Industries, Inc., 222 USPQ 1003, 1010 (TTAB 1984). Although the petitioner claimed that he had
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`plans to use the famous Bell mark commercially, the Board held that such aspirational use did give
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`the petitioner “a real interest in the outcome of [the] proceeding.” Id.
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`Smith cites Jewelers Vigilance Committee Inc. v. Ullenberg Corp, 823 F.2d 490 (Fed. Cir.
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`1987) to excuse his lack of commercial use. The language Smith cites recognizes associational
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`standing based on “an adverse affect on its own interests or those of its members.” Id. at 493. The
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`Federal Circuit easily found that the opposer met that standard.
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`“As distributors of DeBeers'
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`diamonds and users of that name to promote the sale of such goods, JVC's members have personal
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`interests in continuing such use and in negating Ullenberg's assertion of exclusive rights in the
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`mark DeBeers.” Id. at 493-494. Smith does not claim associational standing. He is not trade
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`association. Moreover, standing was found based on the commercial use of the DeBeers term by
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`association members. Once again, Smith allege commercial use of the contested term.
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`III.
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`Conclusion
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`Smith lacks standing to maintain this action because he lacks a real interest in the registered
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`trademark. After more than seven years of unsuccessfully litigating this cancellation action, his
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`intended use remains aspirational and non-commercial. Smith merely seeks to use this Board
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`proceeding to punish Cook. He is nothing more than an intermeddler abusing the Board’s
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`process. His claim of harm is stale and highly speculative. Smith lacks standing. The petition
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`should be dismissed with prejudice.
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`//
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`

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`DATED: December 23, 2019
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`COOK COLLECTION ATTORNEYS
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`By:
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`/s/ David J. Cook
`DAVID J. COOK, ESQ. (SBN 060859)
`Attorneys for Respondent
`COOK COLLECTION ATTORNEYS, P.L.C.
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`
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`

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`PROOF OF SERVICE
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`SCOTT R. SMITH
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`5716 Folsom Blvd., Suite 140
`Sacramento, CA 95819
`I declare:
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`I am employed in the County of San Francisco, California. I am over the age of eighteen
`(18) years and not a party to the within cause. My business address is 165 Fell Street, San
`Francisco, CA 94102. On the date set forth below, I served the attached:
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`REPLY TO OPPOSITION TO MOTION TO DISMISS PENDIND SECOND AMENDED
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`PETITION FILED BY SCOTT R. SMITH
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`on the above-named person(s) by:
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`(BY FEDERAL EXPRESS) Placing the original thereof, enclosed in a sealed
`XXX
`envelope with postage thereon fully prepaid, in the Federal Express Office at San Francisco,
`California, addressed to the person(s) served above.
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`I declare under penalty of perjury under the laws of the State of California that the
`foregoing is true and correct.
`Executed on December 23, 2019 at San Francisco, California.
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`/David J. Cook/
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`David J. Cook
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`