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
`ESTTA554868
`ESTTA Tracking number:
`08/19/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92056538
`Defendant
`Cook Collection Attorneys , P.L.C.
`DAVID J COOK
`COOK COLLECTION ATTORNEYS PLC
`165 FELL STREET
`SAN FRANCISCO, CA 94102
`UNITED STATES
`Cook@squeezebloodfromturnip.com
`Motion to Dismiss - Rule 12(b)
`David J. Cook
`Cook@squeezebloodfromturnip.com
`/s/ David J. Cook
`08/19/2013
`2013_08_19_14_55_53.pdf(1488335 bytes )
`2013_08_19_14_57_16.pdf(659139 bytes )
`2013_08_19_14_58_31.pdf(697058 bytes )
`2013_08_19_15_00_14.pdf(675305 bytes )
`2013_08_19_15_01_43.pdf(1117457 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`SCOTT R. SMITI-I, an individual.
`
`Petitioner.
`
`vs.
`
`COOK COLLECTION ATTORNEYS,
`P.L.C.. a California corporation.
`
`Respondent.
`
`&/%/%/Q/Mg/\J\/Q/%\2
`
`Cancellation No. 92056538
`
`_
`Trademark: Squeezebloodfromturntpcom
`Registration No.: 3257604
`Registration Date: July 3. 2007
`
`NOTICE OF MOTION AND MOTION FOR THE FOI4I40“l’ING RELIEF: 1) DISMISS
`\\'1TI—I PREJUDICE CANCELLATION NO. 92056538 PURSUANT TO FRCP -t1(b) FOR
`THE FAILURE TO COt\IPLY \VTTH THE COURT’S SETTING ORDER DATED JUNE
`
`25. 2013 (DOCKET # 14) AND THAT ACTION IS BROUGHT IN BAD FAITH; AND 2)
`MOTION FOR SUMMARY JUDGMENT UNDER FRCP 56 ON TIIE BASIS THAT
`
`THERE IS NO TRIABLE ISSUE OF MATERIAL FACT, AND THAT RESPONDENT IS
`ENTITLED TO JUDGMENT AS A MATTER OF LAW; lV"IEl\IORANDUl\I OF POINTS
`AND AUTHORITIES; DECLARATION OF DAVID J. COOK, ESQ.
`
`COMES NOW COOK COLLECTION ATTORNEYS, PLC ("Respondent"), who moves
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`this court for the following relief:
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`1. Dismiss with prejudice Cancellation No. 92056538 pursuant to FRCP 41(b) for the
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`failure to comply with the court‘s setting order dated June 25, 2013 (Document # 14) and that
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`action is brought in bad faith;
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`2. Motion for summaryjudgment under FRCP 56 on the basis that there is no triable issue
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`of material fact. and that Respondent is entitled to judgment as a matter of law.
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`3. Strike the motion for default based upon a false and incorrect filing.
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`Ix.) Ix)
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`lx.) VJ
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`The basis of these motions is the fact that Petitioner SCOTT SMITH has filed a knowingly
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`false and fraudulent MOTION FOR DEFAULT FOR FAILURE TO ANSWER AND REQUEST
`
`TO SUSPEND PROCEEDINGS (“Default Motion"): that the Default Motion is so devoid of merit
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`that it constitutes a refusal to prosecute the case and abandonment thereof. and therefore
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`contravenes the order of this court dated June 25. 2013 (Document #14) setting mandatory dates
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`for discovery; and that the filing of this motion represents a continuation ofcontinuous misconduct
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`in this tribunal and other tribunals. Respondent is therefore entitled to a dismissal with prejudice
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`

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`Ia.)
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`L4-J
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`of these proceedings under PRC‘P 4l(b), a summary judgment, and strike the motion to enter
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`default. All of these motions are inter-connected with each other and is set forth in the
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`rnetnorandum of points and authorities.
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`This motion is based upon this Notice, the attached Memorandum of Points and
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`Authorities, the Declaration of David J. Cook, Esq., upon all matters which‘ the court may take
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`judicial notice thereof‘, upon all pleadings, papers and other matters on tile herein, and upon all
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`oral evidence and argument which may be presented at the hearing hereof.
`
`DATED: August 19, 2013
`
`By:
`
`ORNEYS
`
`COOK COLI_.ECTI%_A'
`
`,- " " /
`
`Attorney?’
`(__QQDK” COLLECTION ATTORNEYS, P.L.C.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`A.
`
`Chronology of litigation between Entrepreneur Media, Inc. and Scott Smith.
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`The chronology of the litigation between ENTREPRENEUR MEDIA, INC. (“EMT”) and
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`SCOTT SMITH (“S MITH") is encapsulated in a series of published and unpublished cases, as
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`follows:
`
`1.
`
`in.)
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`E:m'epreueur Media. Inc, a California C0rp0ratt'cm., vs. ScottS':i1t't‘iI, an i:tdiw'r!ucu’
`d.b.a. Entrepreneurpr, 2'x'9 F.3d 1135 (2002) [ENTREPRENEUR MEDIA, INC. vs.
`SCOTTSMITH d.b.a. Enrrepreneurpr, USDC, C‘..D.Cal, Case No. 98-360?‘ FMC
`(CTx)]. This case tells the first half of the story and describes the underlying action
`brought by EMT against SMITH arising out of SMITI-I’s infringement of EMl’s
`registered trademark of Entrepreneur, (Pages 1 l38-I139) EMI filed suit against
`SMITH who infringed on the trademark in the USDC, C.D.Cal. (Page 1 139) EMI
`won by summary judgment, which went on appeal. (Page 1140). The Ninth Circuit
`reversed and sent the matter back to the trial court. The case went to trial again and
`in which EMI prevailed, and in which the Ninth Circuit affimted. EI1U'€pI‘8Jl'E'.:'!!’
`Merliri. Inc. vs. SCOH Sniirh, d.b.a. Emtrepi-eneur'PR, 10} Fen’.App.r. 212 (2004).
`
`1
`
`In re Scott R. Sntitli. Debtor. Entrepreneur Media, Inc. a corporation, v. Scott R.
`Sr:-titfz, 2005 WI 6 792258 (Aug. 11'. 2005). SMITH filed bankrttptcy in the USBC,
`E.D.Cal., Case No. 01-25334. EM] filed a nondischargeability action under
`Bi:Itcy.C. § 523(a)(6) and moved for a summary judgment and summary
`adjudication. The court denied the summary judgment for EMI, but granted a
`summary adjudication. In re Scott R. Smith, Debtor. Emreprenem- Media, }'uc'.. (I
`C0rp0!'(££t0II, vs. .S'eo!: R. Smith, 2005 WL 6792258.
`
`‘ All WestLaw cases are attached to the Declaration of David J. Cook, Esq.
`
`2
`
`

`
`I\)
`
`to.)
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`UI
`
`OO\lO\
`
`In re Scott R. Smith, Debtor. Scott R. Smith v. Entrepreneur Media, Inc., 2009 WL
`7809005 (Dec. 17, 2009). EMI prevailed in the action to exempt the debt from the
`discharge under Bkrtcy.C. § 523(a)(6). SMITH appealed to the Bankruptcy
`Appellate Panel for the Ninth Circuit which affirmed, and the decision is set forth
`in this paragraph. The court chronicled the history of this matter (Paragraph *1
`through *4), up to the Bankruptcy Court litigation. The Bankruptcy Court litigation
`was chronicled in *5 through *6. The Bankruptcy Court held that the debt was
`nondischargeable because the debt arose out of and constituted willful and
`malicious conduct, as found by the Bankruptcy Judge. The BAP affirmed the
`award.
`
`In re: Scott R. Smith, Debtor. Scott R. Smith, Appellant, vs. Entrepreneur Media,
`Inc., 465 Fed.Appx. 707 (Jan. 10, 2012). The Ninth Circuit affirmed BAP. SMITH
`sought review by the Supreme Court, which rejected it. Scott R. Smith, petitioner,
`v. ENTREPRENEUR MEDIA INC, 133 S.Ct. 397 (Mem) (2012).
`
`IJI
`
`Entrepreneur Media, Inc. v. Scott Smith d.b.a. Entrepreneurpr, 201 1 WL 9195047
`(Sep. 12. 201 1) EMI registered the Judgment in the USDC, E.D.Cal.. entitled
`ENTREPRENEUR MEDIA, INC.. (1 California corporation, vs. SCOTTSMITI-I
`a'.b.a. ENTREPRENEUR, Case No. 2:10-mc-00055—JAM—EFB (“Enforcement
`Action") and is currently proceeding with active enforcement. The decision in this
`paragraph indicates the status of the proceeding and the lack of cooperation of
`SMITH.
`
`EMI prevailed against SMITH in the District Court based upon copyright infringement, in which
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`the current amount ofthe Judgment as of 1/24/12 is $1,685,260.44.
`
`B.
`
`!\J
`
`l\)
`
`Chronology of cases before the TTAB between Entrepreneur Media, Inc. and
`Scott Smith.
`
`Entrepreneur Media, Inc. vs. Scott Smith, Mark: EntrepreneurPR, S#: 75531327,
`91114766. 06/09/1999.
`
`Scott Smith vs. Entrepreneur Media. Inc.. Mark: Entrepreneur, S#: 78685136.
`91180276, 10/24/2001.
`
`Scott R. Smith V. Entrepreneur Media, Inc.. Mark Entrepreneur Expo. S#:
`75673295. R#: 2391145. 92049001, 03/07/2008.
`
`Scott Smith v. Entrepreneur Media, Inc., Mark: Entrepreneur Expo. S3: 75673295,
`R#: 2391 145, 92053724, 03/08/2011.
`
`Scott Smith v. Entrepreneur Media, Inc., Mark: Entrepreneur Magazines Small
`Business Expo, S#: 75711195. R#: 2408039. 92053982, 05/06/2011.
`
`Chronology of cases before the TTAB between Cook Collection Attorneys,
`PLC and Scott Smith.
`
`Scott R. Smith v. Cook Collection Attorneys. P.L.C., Mark:
`Squeezebloodfiomturnipcom, S#: 77020236, R#: 3257604, 92054966. 12/20/2011.
`
`Scott R. Smith v. Cook Collection Attorneys. PLC, Mark Cook. S#: 77244334. R#:
`3414311. 92054970. 12/23/2011.
`
`

`
`l\)
`
`U:J-‘—DJ
`
`\IC\
`
`3.
`
`Scott R. Smith v. Cook Collection Attorneys, P.L.C., Mark:
`squeezebloodfromtumip.com, S#: 77020236. R#: 3257604, 92056538. 1 1/28/2012.
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`The sum and substance of this chronology is thate Entrepreneur Media, Inc. (“EMT”)
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`recovered originally a $1.3 million judgment against SMITH for willful and malicious
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`infringements against EMI‘s trademarks. After four layers of litigation. from the Bankruptcy
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`Court. Bankruptcy Appellate Panel, Ninth Circuit, and Supreme Court, SMITH has been
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`adjudicated to be a person who engaged in willful and malicious conduct. The Bankruptcy Court
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`specifically found that SMITH engaged maliciously in the infringement of EMI’s trademark with
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`subjective bad intent. See In re Sn, 290 F.3d 1140 (9"‘ Cir. 2002). The fact ofthis finding is
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`relevant because SMITH now continues to engage in meritless litigation as a continuation of his
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`maliciousness directed towards EMI and by extension, towards EMI’s attorneys.
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`EMI is now attempting to collect thejudgment in proceedings before the USDC. E.D.Cal.
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`entitled Entrepreneur Media, Inc. v. Scott Smith, Case No. 2:l0—mc-00055-JAM-EFT
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`(“Enforcement Action"). During the course of that proceeding, Plaintiff inquired in an order of
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`examination whether SMITH is engaged in the sale of the business of goods. This is relevant in
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`this proceeding in determining whether SMITH is a competitor. such as in the sale of t-shirts or
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`otherwise. SMITH admits that he is not a competitor to, nor engages in the sale of goods. nor
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`engages generally in the business of selling t-shirt which might bear the mark of
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`“Squeezebloodfromturnip.”
`
`At page 13. lines 10-25, page 14, lines 1-7, is the following colloquia:
`
`Do you plan to sell any type of goods, which would generate revenue by
`which you can take their revenue and apply it on account of this judgment?
`Are you asking ifl have a bona Iide intent —
`Sir, answer the question as posed.
`I‘m tlying to clarity it, sir.
`No. There‘s no clarification. This is a very straight-forward question. If you want
`to argue with me. you can argue with me, and ultimately —
`I‘mjust trying to —
`Excuse me.
`I‘ll hale you in fron ofa judge. So that’s my — reread the question
`here.
`
`03>o>o_>
`
`(Whereupon the record was read by the court
`MR. COOK: Answer the question
`THE WITNESS: It’s already been asked and answered.
`t\/1R. COOK: No, it hasn’t
`THE WITNESS: The question is vague.
`
`I don’t understand the question.”
`
`

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`The court can interpret SMITH‘s equivocation is a refusal to answer. and therefore an admission
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`that whatever answer would be prejudicial to SMITH. Cook also inquired at page 24. lines 14-25.
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`page 25, lines l-6, as follows:
`
`Okay. Now. let‘s take a look here at Page 65, what’s marked Paragraph
`190. Petitioner has standing because registrant alleges that petitioners
`goods and services are the same or related to registrants goods and services
`and that petition is a competitor, a registrant. since both target small
`business and entrepreneurs; is that a true statement as of 2008?
`Yes.
`
`Is that a true statement as of today?
`Yes.
`
`Okay. So what goods are you selling today?
`You just misstated the record.
`Sir, I‘m asking a different question. What goods are you selling today. if any?
`Some? None?
`
`As of today, none.
`
`Q 3
`
`>O>O>O>
`
`This testimony sets the stage for the facts as set forth below, that SMITH has no standing.
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`II. MOTION TO DISMISS UNDER RULE 41(b).
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`Respondent moves this court for an order dismissing this Petition pursuant to FRC P 41 (b).
`
`which provides as follows:
`
`Rule 41. Dismissal of Actions
`
`(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply
`with these rules or a court order, a defendant may move to dismiss the action or any
`claim against it. Unless the dismissal order states otherwise, a dismissal under this
`subdivision (b) and any dismissal not under this rule-—except one for lack of
`jurisdiction, improper venue. or failure to join a party under Rule 19--operates as an
`adjudication on the merits.
`
`The basis of this motion is that SMITH has willfully failed to comply with the Scheduling Order.
`
`marked ExIzil)it “A. ” 2
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`SMITI-I‘s Default Motion is wrong. The Cancellation No. is 92056538. The Answer was
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`filed in Case No. 92056538, marked Exhibit “B.” The docket shows the filing of this Answer.
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`Accordingly, the Default Motion is gravely in error. The statement that the Answer was filed in
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`Cancellation No. 92054966 is wrong. That is a tenninated proceeding. and the docket does not
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`show this Answer.
`
`l
`
`l\)
`
`‘J:
`
`\IO
`
`10
`
`ll
`
`13
`
`14
`
`l\) Ix)
`
`Ix) DJ
`
`IQ -B
`
`3 All exhibits are incorporated by reference as though fully set forth in this Memorandum
`in their entirety and are attached to the Declaration of David J. Cook. Esq. which is filed
`contemporaneously herein.
`
`

`
`l
`
`I\)
`
`G\Ui.L>.bJ
`
`This is not a clerical error by an inexperienced Pro Per party. SMITH has prosecuted now
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`four. or more. proceedings before the TTAB and represents an experienced filer. SMITH did not
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`make a clerical error. SMITH did not make an error based upon his inexperience or lack of
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`familiarity with the TTAB rules.
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`The motive is found in SMITH ’s own papers as he seeks to “suspend the proceedings“ at
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`page 4, lines 1-7, as follows:
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`Additionally, as the Board’s detennination of Smith‘s motion will directly
`affect other deadlines (such as a motion to strike matter from a pleading), and could
`also affect the scope of discovery in this proceeding, Smith moves that this
`proceeding be suspended pending consideration of Smith’s motion for a judgment
`by default, and that, after the Board decides the motion. the deadlines for filing
`motions against the respondent’s answer to this petition (if one is ever filed). and
`the initial discovery conference. discovery and trial be reset.”
`
`The request for a suspension based upon faulty and fraudulent grounds represents a
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`repudiation of and abandonment of these proceedings. SMITH initiated these proceedings and in
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`fact opposed the motion to dismiss filed on 12/13/12. SMITH incorporated the Declaration of
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`Steele Lanphier. a local California lawyer.
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`SMITH committed a egregious fraud upon the court, because Mr. Lanphier is now subject
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`to disciplinary proceedings. A copy of the pending State Bar Decision is marked Exhibit “C. ”
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`Certainly. had the Board had this Decision in front of it. the Board might have ruled differently.
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`However, SMITH’s conduct further buttresses this pending motion.
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`Federal courts retain the power under FRCP 41 (b) to dismiss a case for violation of a court
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`order. or other wrongful conduct. Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168, 1170
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`(1981). See also, Link v. Wabash R.R.. 370 U.S. 626 (1962) [failure to participate in proceedings].
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`This enables a federal court to control is Docket and moreover. to insure that litigants comply with
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`the letter and spirit of the law.
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`The court has the inherent equitable power to dismiss cases under Chambers 1-’. Nasco, 501
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`U.S. 32 (1991 ). This case and its many progeny give the court the right to dismiss a case given a
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`flagrant violation of the rules or other significant misconduct. SMITI-l‘s misconduct is 1) the
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`bringing ofthis otherwise frivolous Petition, 2) putting before the Board the Declaration of an
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`attorney who is now facing disciplinary charges, 3) when confronted with the responsibility of
`
`

`
`l\)
`
`
`U:-I-‘—U)
`©©OO\lC\
`
`litigating this case. files a knowingly false motion, and 4) seeking the suspension of these
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`proceedings. without any legal basis. The repercussions of this request are, at best, pernicious in
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`keeping “alivc“ a proceeding which itself has no merit, all for the purpose of accruing expense.
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`inconvenience and effort by counsel for EMI. for no ostensible purpose.
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`By the use of this artifice of a Default Motion and the request to suspend, SMITH keeps
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`alive a case which has not the slightest merit. A dismissal for failure to prosecute is appropriate
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`when the failure is coupled with disobedience to court orders or disregard of established rules. See
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`Slzerflez- l’. Warehouse Enzployees Union Local No. 730, 408 F.2d 204. 205 (D.C. Cir.) cert.
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`denied, 395 U.S. 934, 89 S.Ct. 1996. 23 L.Ed.2d 449 (1969).
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`This case is brought by SMITH because he claims that he finds Squeczebloodfromtumip to
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`be threatening, offensive, disparaging. immoral or scandalous. (Petition. p. 4, ‘ll 24, ll. 11) SMITH
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`is obligated for his case. SMITH made a decision to exit this case by seeking a suspension based
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`upon a fraudulent filing. This court can only conclude that SMITH has abandoned this
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`proceeding, and moreover, intentionally violated the discovery order. This is SMITH‘s case to
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`prosecute, and duty—bound to comply. FRCP 41(b) enables the court to weed out and dismiss
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`those cases in which the litigant has opened defied a court order and whose defiance reveals an
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`ulterior motive to use this litigation as a tool of oppression and intimidation directed to counsel
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`and the Judgment Creditor. Seeking to suspend this proceeding enables SMITH to us this
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`proceeding as intimidation and coercion and ultimately violates the civil rights of both EMI and
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`Cook in access to the courts. This misconduct is the functional equivalent of a party using a threat
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`to deter another individual of their Constitutional rights through courts through a meaningless
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`process. Rule 41(b) protects litigants against the misconduct of others who violate court orders
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`only for their own profit and for the purpose of creating delay. See Olsen v. Mapes, 333 F.3d
`
`Ix) -ts
`
`1199, 1204. fn. 3: Young v. United States ofAmerica. 316 Fed.Appx. 764 (2009).
`
`Couns have dismissed cases for the failure to comply with court orders. See Marshall v.
`
`Southern Farm Bureau Cas. Co., C.A.5 (La.) 1965, 353 F.2d 737, certiorari denied 86 S.Ct. 1352,
`
`384 U.S. 910. 16 L.Ed.2d 363; Anthony v. Marion County General Hospital, C.A.5 (Miss) 1980.
`
`617 F.2d 1 164; Pearson v. Dennison. C.A.9 (Cal.) 1965, 353 F.2d 24; Steward v. City ofJackson,
`
`

`
`I\)
`
`42.5)
`
`10
`
`ll
`
`13
`
`14
`
`IS
`
`16
`
`17
`
`I8
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`Tenn. C.A.6 (Tenn.) 2001. 8 Fed.Appx. 294. 1001 WL 278687.
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`This motion only seeks to increase the time, effort and energy borne by an attorney for a
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`Judgment Creditor and serves to create a distraction, when none otherwise should exist. This
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`Default Motion is consistent with the conduct of SMITH in the filing of now four TTAB
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`proceedings which have been adversely terminated by SMITH, either by SMlTH’s loss or
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`dismissals. Keeping this current Petition alive indefinitely because SMITH claims a fraudulent
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`default, would excuse SMITH from the rigors of discovery and protract these proceedings. when
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`they have no merit.
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`The courts l1ave at hand many remedies to combat frivolous and meaningless litigation.
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`such as this. Chambers v. Nasco. supra at 44. SMlTH’s entire claim is that because he is :1
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`Judgment Debtor, he takes offense at the use by the Respondent on his t-shirts of
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`Squeezebloodfromtumip. SMITH does not have Article III standing. is not a competitor. does not
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`have an interest. and has no dealings with, sale of, ownership of, any goods or services which
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`would compete.
`
`What makes this case even more egregious is SMlTH’s total lack of standing. SMITH
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`admits in his OEX of November 30, 2011 that he is not engaged in the business of or any activity
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`which would provide for the sale of any goods. SMITH states in his deposition, the following:
`
`“MR. COOK: Bear with me one moment here . (Whereupon a break was taken.)
`BY MR. COOK: Mr. Smith, in the operation of BizStar, are you selling any
`products of any type or nature?
`No.
`
`O>O>O>O>O>O>O
`
`Nay novelties?
`No.
`
`Souvenirs, anything like that?
`No.
`
`And are you engaging in such a business where you receive orders for products in
`which a third party would ship it?
`No.
`
`You’re not doing it? _I-Iave_you communicated to any third parties that I fact you’re
`in the business of selling gifts, souvenirs, trinkets and other novelty items?
`I don‘t how. no.
`
`No. Have you ever, in the last five years, sold products. either directly or indirectly,
`which would be gifts, novelties, items, papers, books, brochures, anything like that?
`It‘s not ringing a bell.
`I would have to say no.
`Do you hold a State Board of Equalization permit, which would authorize you to
`
`

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`l\)
`
`Ut.L-DJ
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`sell products by which you would be collecting a sales tax?
`No.
`A
`(Debtor Exam of Scott Smith, November 30, 2011, page 123, 11. 3-1 1: p. 124, 11. 5-8; p.
`125, ll. 9-13, 18-25; p. 126. ll. 1-2)
`
`Standing is required as a precondition to any cancellation petition.
`
`In order to establish a claim for cancellation un the Lanham Act, the party seeking
`cancellation must prove two elements: ( 1) that ‘there is a valid ground why the
`trademark should not continue to be registered‘; and (2) that it has standing. Id. At
`*5 (quoting Star-Kisl Foods, Inc. v. P.J. Rhodes & C0,, 735 F.2d 346, 348 (9"‘ Cir.
`1984), and citing Herbko Int '1, Inc. v. Kappa Books, Inc., 308 F.2d 1 156, 1161
`(Fed.Cir. 2002). The court also noted that the standing requirement of an
`administrative agency like the TTAB differs from the “case or controversy"
`requirement of federal courts because the statute confers standing for the
`administrative agency. Id. (Citing Ritchie v. Simpson, 170 F.3d 1092, 1095
`(Fed.Cir. 1999). “Section 14 of the Lanham Act confers standing to cancel a
`trademark registration on ‘any person who believes that he is or will be damages
`by the registration ofa mark.” Id. At *5 (quoting 15 U.S.C. § 1064). (IP
`LITIGATION UPDATE, Use ofaDisclaimed Portion ofa Mark or Injunction
`Against Use of a Mark Negates Challenger’s Standing in a Cancellation Proceeding
`By Bryan Beel, Ph.D. on July 19”‘, 2013)
`
`On the issue of standing to institute a cancellation proceeding, 15 U.S.C. C.C.P. §
`1064 [Section 14 of the Trademark act] states that a petition to cancel a registration
`of a mark, stating the grounds relied upon, may, upon payment of the prescribed
`fee, be filed as follows by any person who believes that he is or will be damaged,
`including as a result of dilution under section 43( c), by the registration of a mark
`on the principal register
`Further, 37 CFR § 2.11 l(b) states that any person who
`believes that he, she or it is or will be damaged by the registration may file a
`petition, addressed to the Trademark Trial and Appeal Board, for cancellation of the
`registration in whole or in part.
`
`The term “damage.“ as used I Sections 13 and 14 ofthe Act, 15 U.S.C. §§ 1063 and
`1064. concerns specifically a pa1ty’s standing to file an opposition or a petition to
`cancel, respectively. A party may establish its standing to oppose or to petition to
`cancel by showing that it has a “real interest” in the case, that is, a personal interest
`in the outcome of the proceeding and a reasonable basis for its belief in damage.
`See Ritchie 1’. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 , 1025 (Fed. Cir. 1999)
`and TBMP C.C.P. § 309.03(b). There is no requirement that actual damage be
`pleaded and proved in order to establish standing or to prevail in an opposition or
`cancellation proceeding. See Cunningham v. Laser Golf Corp.. 222 F.3d 943, 945,
`55 USPQ2d 1842, 1844 (Fed.Cir. 2000). (The Standing Requirement in
`Cancellation Proceeding before the U.S. Trademark Office, February 26, 2010)
`
`lx) #-
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`SMITH, when asked about the sale of goods, has engaged in gamesmanship and refused to
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`answer legitimate questions. as set forth in the answer to the order of examination of whether or
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`not “Q Do you plan to sell any type ofgoods?” at page 13. line 10. SMITH engaged in line after
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`line of obstruction. This Board can interpret this obstruction as a concession that he is not in the
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`business of the sale of goods, and therefore could not be a competitor for the sale of t-shirts.
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`

`
`I
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`l\)
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`The court therefore should exercise its rightful power to dismiss this Petition that SMITH
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`now seeks to delay these proceedings based upon grounds which are meritless on their face.
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`Accordingly, the Board in considering this motion under FRCP 4l(b) should take into
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`consideration that SMITH himself has not the slightest standing. The inescapable conclusion is
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`that SMTTH has repudiated his action based upon a false filing because ultimately he can never
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`prove up any element of his Petition. including standing.
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`[1]. MOTION FOR SUMMARY JUDGMENT.
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`A.
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`Basis of summary judgment.
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`Respondent moves for a summary judgment under FRCP 56 on the basis that there is not
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`triable issue of material fact, on the following grounds:
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`1. SMITH cannot and is unwilling to provide any evidence in support of his claim(s) based
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`upon his refusal to proceed with discovery.
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`2. SMITH has engaged in willful misconduct in the submission of a false declaration from
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`Steele Lanphier, an attorney. without disclosing that Steele Lanphier is subject to a disciplinary
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`proceeding.
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`3. That SMITH has no standing and has never had any standing in that he is not engaged in
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`and never was engaged in a competing business.
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`When a defendant makes a motion for summary judgment, the burden of proof shifts to the
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`Plaintiff under FRCP 56. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
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`(1986).
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`In this case. Respondent has set forth these defenses, including the lack of evidence, gross
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`misconduct. and the lack of standing. Any and all of these defenses would bar Petitioners action.
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`However. Petitioner has refused to comply with the court order for discovery, and therefore has
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`waived any right to submit any evidence. Petitioner seeks to abandon this proceeding by
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`Ix) -b
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`requesting a suspension. Petitioner does not want to go forward with this case when the
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`suspension is self-manufactured. A plaintiff in a lawsuit cannot file the action, hold the defendant
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`hostage based upon absurd allegations. and thereafter seek to suspend the proceedings which
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`would protract this matter indefinitely and for no good reason.
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`The basis of this summary judgment is that SMITH cannot prevail as a matter of law on his
`
`10
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`

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`claims on the basis that he is refusing to provide any evidence in support of his claims, he has
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`engaged in misconduct, and lacks the slightest standing, and therefore has failed to provide any
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`evidence in support thereof.
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`B.
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`Refusal to provide any evidence.
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`SMITH bears the affimiative burden of proof by a preponderance of the evidence to prove
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`up his case. Celotex v. Catrett. supra. SMITH filed on August 12, 2013 his Default Motion in
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`which he seeks a suspension of discovery. (Default Motion. p. 4, 11. 1-18) This amounts to a
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`refusal to engage in the discovery conference, which is a prerequisite to discovery.
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`Next. the key issue in this case is SM1TH‘s standing. As indicated above. SMITH has no
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`standing. SMITH has set forth his claim of standing which is his “interest” at page 4, lines 6-19,
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`of his PETITION TO CANCEL REGISTRATION. SMITH claims that the Squeezeblood mark
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`brings SMITH into contempt, ridicule and disrepute. (Petition, p. 4, II. 8) SMITH claims that Cook
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`has filed numerous public accessible documents in federal court and other govemmental agencies
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`against SMITH that display the squeezeblood mark which displays SMITH as the Debtor, which
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`SMITH finds to be threatening, offensive, disparaging, immoral or scandalous. (Petition. p. 4. 11.
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`9-1 1). SMITH claims that Cook has made numerous attempts to seize SMITH‘s assets while
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`using the Squeezeblood mark which SMITH finds to be threatening, offensive, disparaging,
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`immoral or scandalous. (Petition. p. 4, 11. 9-11).
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`SMITH however is an adjudicated trademark infringer, in which a Bankruptcy Judge has
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`ruled that he has engaged in “willful and malicious conduct“ as upheld by two appellate courts.
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`SMITH has engaged in filing four cancellation actions against EMI and Cook, and now a fifth one.
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`SMITH has made false and fraudulent statements in the Enforcement Action by accusing Cook of
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`engaging in sanctionable conduct in the New York courts. However, SMITH‘s claim was one of a
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`"mistaken identity."
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`Even compounding this terribly egregious matter is that SMITH has brought this matter on
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`himself by infringing on EMI‘s trademark and ending up with a million dollar plus judgment.
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`C.
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`SMITH has repudiated the discovery order.
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`SMITH seeks a suspension of these proceedings, based upon a false filing of the Default
`
`11
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`

`
`[9
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`La.)
`
`LII
`
`00\lO’\
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`Motion. This is a repudiation of a discovery order and an outright refusal to engage in the
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`discovery conference, which is precursor to any discovery. This constitutes an outright concession
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`that whatever discovery Respondent could obtain would undennine any claim of standing. much
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`less any other claims. in the Petition to Cancel. The court can find that a refusal to comply with
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`discovery. and in this case a repudiation, is not only a deliberately willful act, but moreover, a
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`concession that such discovery would be prejudicial. The court likewise can find that the failure to
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`provide discovery is a concession that the allegations have no evidentiary basis. Given his
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`repudiation of his case. he could never make his burden of proof under Celotex v. Catrett.
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`This summary judgment is based upon the fact that SMITH cannot prove his case. and in
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`fact abandoned it. SMITH cannot keep these proceedings open indefinitely through a
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`“suspension" and contemporaneously deprive Respondent to proceed with discovery to end these
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`proceedings. The claim of a "suspension” is nothing more than the ruse to keep alive these
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`proceedings freed of the concurrent obligation to engage in discovery which would undermine
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`them. As classically. a litigant "cannot have his cake and eat it too." More than one court has
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`dismissed cases outright when a party fails to comply with discovery, and in this case. repudiates
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`it.
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`Respondent should not be a hostage to SMlTl-l’s meritless claims and tie up significant
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`resources. including multiple motions. pleadings and other papers, filed by a Judgment Debtor
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`who is doing noting more than engage in punitive action to escape his personal and moral liability
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`for infringing upon the trademarks of EMI. This is the third Petition against Cook, and the fifth
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`total.
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`The TTAB should consider this refusal through the vehicle of his request to suspend as
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`nothing more than a de facto termination of these proceedings which SMITH engineered in the
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`face of the two prior cancellations against Cook. SMITH in the fact of motions to dismiss.
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`temiinated the two prior proceedings. SMITH perceives himself to be the "victor" because he
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`caused Cook to incur time, effort and energy for essentially no cost to himself and causing Cook to
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`incur time. effort and energy.
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`A motion for summary judgment compels a party to ultimately "prove up its case“ under
`
`12
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`

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`Rule 56. CITATION. SMITH refuses to comply with discovery by his abandonment of these
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`proceedings. As a matter of law. SMITH could never prove up his case.
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`Therefore. a summary judgment on these grounds should be granted.
`
`D.
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`No standing.
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`As indicated above, SMITH cannot prosecute this case without standing. Standing
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`is a prerequisite to proceed with a Petition to Cancel under TTAB rules and Article HI.
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`Respondent raised that issue in the motion to dismiss, which this Board denied. In light of the
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`change of events, and moreover. new facts. Cook seeks a summary judgment on the issue of
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`standing.
`
`First. SMITH refuses to engage in discovery, and therefore cannot prove up standing. By
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`his request for a suspension. SMITH seeks to avoid a deposition, interrogatories, document
`
`requests. and the other stark rigors of civil discovery. This Board can construe his refiisal as
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`ultimately a concession that he has no standing. Anything less would permit anybody. and to
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`make it clear, anybody in the world to file a Petition to Cancel the trademark of Google, Microsoft.
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`FaceBook, Procter & Gamble. or any trademark of a Fortune 500 company because they personally
`
`believe that the trademarks injure them. The TTAB would be inundated with infringement actions
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`in which irrational individuals who have no stake in anything would attack multi-billion dollar
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`trademarks which in turn would constitute nothing more than shakedowns and acts of extortion.
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`This current trademark infringement action leveled by SMITH is no different.
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`The Board should find this refusal as a concession of the lack of standing, and therefore
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`grant the summary judgment. Anything less would reward SMITH from making malevolent
`
`1 7
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`3 4
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`O \
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`l
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`allegations and holding o