Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA628308
`ESTTA Tracking number:
`09/20/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92056888
`Plaintiff
`Isaac A. Potter Jr.
`ISAAC A POTTER JR
`5503 S TAMPA AVENUE
`ORLANDO, FL 32839
`UNITED STATES
`ipotter2000@yahoo.com
`Other Motions/Papers
`Isaac/A/Potter/Jr
`cbca.efile@cbca.gov, jen-
`nifer.krisp@uspto.gov,crt.appellate@usdoj.gov,crt.amicus@usdoj.gov
`Isaac/A/Potter/Jr
`09/20/2014
`Petition.pdf(1906909 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`

`
`GENERAL AFFIDAVIT
`
`State of Florida
`
`County of _ORANGE
`
`BEFORE ME, the undersigned Notary,
`
`[name ofNotary
`before whom affidavit is sworn], on this
`
`[day ofmonth] day of SEPTEMBER
`personally appeared
`
`
`[month], 2014
`
`9
`
`[name of affiant] ,
`known to me to be a credible person and of lawful age, who being by me first duly
`sworn, on
`[his or her] oath, deposes and says:
`RULE 21 WRIT OF MANDAMUS PETITION
`
`MOTION FOR RELIEF FROM JUDGMENT-RULE 60(b)(l)(2) TTAB
`
`PROCEEDING NO. 92056888,
`
`‘
`
`Motion for a Final Judgment on the Merits for RCFC 58(d)(4)(5), the money-
`mandating Statue that supports the Appellant's Injunctive Relief 28 U.S.C.
`SUBSECTION l498(b), Section 504 (c) of title 17, UNITED STATES CODE,
`SURRENDER (37 CFR 2.134 (b), or Voluntary Cancellation of Registration (ttab
`proceeding no. 920568888) and 37 CFR 2.161 Requirements for a complete
`Affidavit or declaration of continued Use or Excusable nonuse. FRAP 27 (C)
`MOTIONS, MOTION TO DISQUALIFY COUNSEL,MOTION TO
`CHALLENGE JURISDICTION; MOTION FOR CLERICAL MlSPRISION-
`RULE 4(a)(4(A)-Effect of a Motion on Notice of Appeal: 28 U.S.C. 1291, 1292 (e)
`CASE NO. l4—459C—COFC AND 14—5l30—CAFC.
`
`
`
`[signature org}: 1
`ISAAC A. POTTER JR
`
`
`[typed name ofafliant]
`5503 S. TAMPA AVENUE
`
`[address of afliant, line 1]
`
`CW, :2L«:§)8@
`
`W
`
`

`
`ORLANDO, FLORIDA 32839, 407-217-3120, EMAIL:
`ipotter2000@yahoo.com
`[address of affiant, line 2]
`
`State of Florida
`
`g 2g) ,4 E ,5
`County of
`Sworn to (or affirmed) nd subscribed before me this
`_4x_g&;, 90\
`(year), by
`-/1%: -
`ab) 6/
`‘
`
`'
`
`if : day of
`
`(name of person making statement).
`
`
`
`
`-
`-'
`' ‘A SANTIAGO
`Notary Public. State of Florida
`Commission 3 EE 838557
`W comm. expires Sept. 26, 2016
`
`
`
`
`
`(Print, Type, or Stamp Commissioned Name of Notary Public)
`Personally Known
`OR Produced Identification
`
`\/K
`
`Type of Identification Produced
`
`p C’ 9 C»
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY THAT I SERVED A COPY, RULE 21 WRIT OF
`
`MANDAMUS PETITION,MOTION FOR RELIEF FROM JUDGMENT-RULE
`
`60(b)(1)(2 TTAB PROCEEDING NO. 92056888), Motion for a Final Judgment on
`
`the Merits for RCFC 58(d)(4)(5), the money—mandating Statue that supports the
`
`Appellant's Injunctive Relief 28 U.S.C. SUBSECTION l498(b), Section 504 (c) of
`
`title 17, UNITED STATES CODE, SURRENDER (37 CFR 2.134 (b), or
`
`Voluntary Cancellation of Registration (ttab proceeding no. 920568888) and 37
`
`CFR 2.161 Requirements for a complete Affidavit or declaration of continued Use
`
`W-/av/4
`C1I‘\*+’¢ M0. I<¢~S!G@
`
`

`
`or Excusable nonuse. FRAP 27 (C) MOTIONS, MOTION TO CHALLENGE
`
`JURISDICTION; MOTION FOR CLERICAL MISPRISION-RULE 4(a)(4(A)-
`
`Effect of a Motion on Notice of Appeal: 28 U.S.C. 1291, 1292 (e) CASE NO. 14-
`
`459C—COFC AND 14-5130-CAFC. MOTION TO DISQUALIFY COUNSEL.
`
`ON COUNSEL OF RECORD ON SEPTEMBER
`
`2014 BY US MAIL
`
`l. CLERK OF COURT, DANIEL E. O. TOOLE,
`
`CASE MANAGER: ANNE THOMPSON, 717 MADISON PLACE, NW,
`WASHINGTON, DC 20005— PH# 202-275-8000
`
`2. Ronald C. Machen Jr., (202) 252-7566, United States Attorney’s Office,
`555 4”‘ Street, N.W., Washington, DC 20530
`3. Office of Solicitor— Mail Stop 8-U.S. Patent and Trademark Office, P.O.
`Box 1450, Alexandria, VA 22313-1450, (571)272-9035, fax: (571) 273-
`0373
`4. Kirby W. Lee, Commercial litigation Branch, Civil Division, Department of
`Justice, 1100 L Street, N.W. 8”‘ floor, Was 11 - on, DC 20530—email:
`Kirby.1ee@usdoj.gov
`
`ISAAC A. PO”I“FER;JR:_
`
`5503 S. TAMPA AVENUE, ORLANDO: FLORID
`3120, EMAIL: ipotter2000@yahoo.com
`
`
`
`
`
`SAUNDR SAN'l1AGo
`Ncgggrzubgic. Stateor Florida
`
`My mm as on 9 EE 33555?
`
`- “Wes Sept. as. am
`
`PUBLIC NOTARY
`
`

`
`UNITED STATTES COURT OF APPEALS
`
`FOR THE FEDERAL CIRCUIT
`
`CASE NO. 14-5130
`
`ISAAC A. POTTER JR.,
`
`APPELLANT,
`
`V.
`
`UNITED STATES,
`
`APPELLEE,
`
`IN RE: ISAAC A. POTTER JR., PETITIONER
`
`RULE 21 WRIT OF MANDAMUS PETITION
`
`1. ISSUES PRESENTED:
`
`MOTION FOR RELIEF FROM JUDGMENT-RULE
`60(b)(1)(2), TTAB PROCEEDING NO. 92056888 UNDER THE
`SAVING CLASE (FRAUD PERPETRATED).
`
`MOTION FOR CLERICAL MISPRISION-RULE 4(a)(4(A)-Effect of
`
`a Motion on Notice of Appeal: 28 U.S.C. 1291, 1292 (e),
`
`Motion for a Final Judgment on the Merits for RCFC
`
`58(d)(4)(5), the money—mandating Statue that Supports the Appellant's
`Injunctive Relief 28 U.S.C. SUBSECTION 1498(b), Section 504 (c) of title 17,
`UNITED STATES CODE, SURRENDER (37 CFR 2.134 (b), or Voluntary
`Cancellation of Registration (ttab proceecling no. 920568888) and 37 CFR 2.161
`Requirements for a complete Affidavit or declaration of continued Use or
`Excusable nonuse. FRAP 27 (C), AND 28 U.S.C. CODE SUBSECTION 1291-
`FINAL DECISIONS OF DISTRICT COURTS-CASE NO. 1-13—01417—CMH—IDD
`
`AND CASE NO. 14-459C-COFC- JUDGE JAMES F. MEROW and TTAB
`
`PROCEEDING NO. 92056888.
`
`MOTION TO DISQUALIFY COUNSEL-KIRBY W. LEE
`
`AND DANIEL E. O. TOOLE (CLERK)
`
`49% 4— at
`
`U
`
`

`
`FOR VIOLATION OF DUE PROCESS, BREACH OF FIDUCIARY DUTY,
`EXCESS OF AUTHORIZATION-FRAP 27 (c),RULE 60 (B)(1)(2) MISTAKES:
`
`INADVERTENCE; EXCUSABLE NEGLECT; FRAUD, ETC.
`
`AUTHORIZATION-FRAP 27 (e), Rule 60(b)(1)(2) Mistakes, Inadvertence,
`Excusable Neglect, fraud, etc.
`
`1. Relationship of trust and confidence- Daniel E. O. Toole, Clerk of court,
`
`Case Manager-Anne Thompson, Counsel-Kirby W. Lee
`
`2. Respondents took advantage of that position of trust in order to benefit
`
`himself,-
`
`a. The petitioners charge the perpetrators (employees) with fraud for
`
`Masquerading as if they were “officers” of the State and therefore only a
`
`pretense of Authority when they knew or should have known that they
`
`had no authority.
`
`b. The petitioner FRCP Rule 60(b) (4) is properly invoked on the basis that
`
`the underlying judgments(S) are void, “Relief is not a discretionary
`
`matter, it is mandatory. “ Omer V. Shalala, 30 F. 3d 1307 (10th Cir. 1979)
`
`c. The petitioner charge the perpetrators (employees) as “employees” who
`
`nevertheless have a fiduciary obligations to the people based on their
`
`oaths of office.
`
`d. The petitioner charge the Employer for breach of fiduciary obligations to
`
`the petitioner under the CONSTITUTION.
`
`
`
`

`
`3. The plaintiff as a result , injured—criminal Trademark infringement, and
`
`Criminal Copyright Claim infringement.
`4. Existence of Fiduciary— Clerk of court, ‘Case Management owes duty to the
`
`people under the Constitution.
`
`5. Breach of that duty- The clerk of court can’t dismiss an appeal—FRAP 27(0);
`
`case management fails to submit Forrna Pauperis, Motions for Order to
`
`Show Cause to the Motion Panel.
`
`i
`
`6. Proof of Benefit to the Respondent— TTAB PROCEEDING NO. 92056888
`
`IS UNDER THE JURISDICTION OF THE USPTO, WHEREAS THEIR
`
`HAS BEEN A PETITION FOR CANCELLATION OF A REGISTRATION
`
`FILED BY ISAAC A. POTTER JR, AGAINST ROBERTA S. BREN,
`
`OBLON SPIVAK, AND TOEI ANIMATION CO, LTD WHO HAS
`
`VOLUNTARILY SURRENDER THEIR REGISTRATION NO. 3431651
`
`BY USE OF 37 CFR SUBSECTION 2.l34(b), for section 8 or 9 affidavit,
`
`from being able to moot the proceeding, and avoid judgment, by deliberately
`
`failing to file the required affidavit of use under Section 8 or 9.
`
`7. The petitioner allege “the benefit sought was more than a continued
`
`relationship with the petitioner or payment of a cancellation fee of a
`
`Trademark registration no. to the Respondent for Trademark registration and
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`Copyright Registration the petitioner actually owned, to be enforced.
`
`
`
`

`
`MONEY MANDATING STATUE RCFC 58 (d) (4)(5) supports plaintiff
`
`injunctive relief for copyright ownership claim and criminal Trademark
`
`claim; 28 U.S.C. SUBSECTION 1498 (b), Patent and Copyright cases, The
`
`minimum statutory damages as set forth in section 504 (c) of title 17, United
`
`States code.
`
`4
`
`8. The petitioner allege that the fiduciary respondents failed to “act in good
`
`faith and with due regard to petitioner’s interests.
`
`STATEMENT OF FACTS
`
`1. The plaintiff allege he is a man.
`
`2. The plaintiff allege that all acts took place on the soil within the actual
`
`boundaries of the state.
`
`3. The plaintiff (victim) suffers loss of money and for property as a result of
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`relying upon and acting upon the untrue representation.
`
`4. The Victim (plaintiff) relies upon and acts upon the untrue representation.
`
`5. The untrue representation is believed to have harm the Victim (plaintiffs) bill of
`
`rights to whom the representation has been made.
`
`6. The plaintiff as a man relied upon the Clerk of Court, Case manager, and
`
`Judges.(Motion Panel) bhayani V. treeco, inc., 2:09-cv-672-FTM-29, 2011 WL
`
`250434 (M.D. Fla 2011).
`
`
`
`

`
`7. If the government and the private party enter into a "joint Enterprise" or a
`
`"Symbiotic Relationship" with each other it is a state action (Burton V. Wilmington
`
`Parking Authority, 365 U.S. 715 (1961).
`
`8. If the government is " pervasively entwined with the leadership of the private
`
`organization the acts of the organization are state action (Brentwood Academy v.
`
`Tennesse Secondary School Athletic Association, 535 U.S. 971 (2002).
`
`9. Section 9- no person shall be deprived of life, liberty or property without due
`process of law, or be twice put in jeopardy for the same offense, or be compelled in
`any criminal matters to be a witness against oneself.
`
`2. FACTS NECESSARY TO UNDERSTAND THE ISSUE PRESENTED BY
`
`THE PETITION:
`
`MOTION FOR CLERICAL MISPRISION—
`
`PURSUANT TO RULE 4(a)(4)(A)-- Effect of a Motion on Notice of Appeal:
`
`If a party files in the district court any of the following motions under FRCP, the
`time to file an appeal runs for all parties from the entry of the ORDER disposing of
`the last such remaining Motion:--(case no. 14-459c COFC).
`
`(vi) for relief under Rule 60 if the motion is filed no later then 10 days after the
`judgment is entered.
`
`Absent a final JUDGMENT below, Appellant argues that the spirit of Rule
`4(a)(4)(A) controls i.e. where it states: "the time to file an appeal runs for all
`parties from entry of the order [not "judgment"] disposing of the
`last such remaining motion." 28 U.S.C. 1291, 1292(e). case no.
`14-459c (COFC) JUDGE JAMES F. MEROW.
`
`
`
`

`
`28 U.S. CODE SUBSECTION 1291-FINAL DECISIONS OF
`
`DISTRICT COURTS
`
`The court of appeals (other than the United States Court of Appeals for the Federal
`Circuit) shall have jurisdiction of appeals from all final decisions of the district
`courts of the United States, the United States District Court for the District of the
`Canal Zone, the District Court of Guam, and the District of the Virgin Islands,
`except where a direct review may be had in the Supreme Court. The jurisdiction of
`the United States Court of Appeals for Federal Circuit shall be limited to the
`jurisdiction described in sections 1292 (C) and (d) 1295 of this title.
`
`28 U.S.CODE SUBSECTION 1292-INTERLOCUTORY
`
`DECISIONS (e)
`
`The Supreme Court may prescribe rules, in accordance with section 2072 of this
`title, to provide for an appeal of an interlocutory decision to the courts of appeals
`that is not otherwise provided for under subsection (a),(b),(c), or (d).
`
`A clerical misprision is either a mistake or fraud committed by the clerk of the
`court, which is susceptible of demonstration by the face of the record. [Common
`Wealth v. Caudill, 121 Ky, 537, 540-541 (Ky. 1905)]
`
`Certain specified post judgment motions suspend a filed notice of appeal until the
`disposition of the last such motions. The purpose of this amendment is to suspend
`the 10-day period for filing and serving a designation of the record and statement
`of the issues if a timely post judgment motion is made and a notice of appeal is
`suspended under Rule 8002(b). The 10-day period set forth is in the first sentence
`of this rule begins to run when the order disposing of the last such post judgment
`motions outstanding is entered. The other amendments to this rule are stylistic.
`
`MOTION FOR A STAY PURSUANT TO FED. R. APP. P. 8 (a), requires a party
`seeking a stay pending appeal, to move first in the district court for approval. The
`district court and or The U.S. COURT OF FEDERAL CLAIMS HAS DENIED
`THE MOTION FOR A STAY BY RESPONDENT- KIRBY W. LEE, CASE NO.
`
`14-459C.
`
`QQVWJ‘/’
`
`1
`I
`C/‘Wfl
`
`

`
`REASON FOR DENIAL OF A STAY PURSUANT TO FED. R. APP. P. 8 (a)
`
`pursuant to RULE 62(e).
`
`1. There is no automatic stay in injunction, receivership, or accounting in patent
`infringement cases. FED R. CIV 62 (a). The mere filing of a supersedeas bond will
`not stay an injunction in a patent infringement action unless the court so orders.
`Beaver Cloth Cutting Mach., Inc. V. H. Maimin Co., 37 F.R.D. 47, 49-51
`(D.C.N.Y. 1964), rev'd on other grounds, 343 F. 2d 442 (2d Cir. l965)(reversing
`judgment on merits).
`
`2. A party attempting to stay an injunction bears a heavy burden to demonstrate to
`the court that: (1) it will prevail on appeal; (2) it will suffer irreparable injury in the
`absence of a stay; (3) no substantial harm will occur to the prevailing parties; and
`(4) a stay would be in the public interest.
`
`CONCLUSION:
`
`3. REASON WHY WRIT SHOULD ISSUE:
`
`1. CONSTRUCTIVE FRAUD
`
`2. BREACH OF FIDUCIARY DUTY
`
`ARGUMENT
`
`Interlocutory appeals may be brought if an appeal would be particularly prejudicial
`
`to the rights of one of the parties if a party is asserting or claiming that the court
`
`completely lacks Personal Jurisdiction over them, then it is recognized that being
`
`forced to wait for the conclusion of the trial would violate their right not to be
`
`subjected to a trial at all. Alternatively, the trial judge can “CERTIFY” one of his
`
`orders for immediate interlocutory appeal.
`
`THE ACTIONS INVOLVE COMMON QUESTIONS OF LAW AND FACT
`
`Rule 42(a) permits a district court to consolidate separate actions when they involve "a common
`question of law or fact." Fed.R.Civ.P. 42(a). Even if there are some questions that are not
`
`
`
`

`
`common, consolidation is not precluded. Batazzi V. Petroleum Helicopters, Inc., 664 F.2d 49, 50
`(5th Cir. 1981); See Central Motor Co. V. United States, 583 F.2d 470 (10th Cir. 1978).
`Common questions of law and fact abound in these cases. 1.question of ownership, 2. question of
`due process of law, 3. question of taking of property.
`
`Pursuant 37 CFR Subsection 2.134(b) TTAB proceeding no. 92056888, serial
`
`number 76477503, Registration no. 3431651 and Section l2(a) of the Trademark
`
`Act, 15 U.S.C. Subsection 1062 (a).
`
`Pursuant 37 CFR Subsection 2.134(b) to prevent a cancellation proceeding
`
`respondent, Roberta S. Bren, Toei Animation Co, LTd, Oblon Spivak, Anne
`
`Thompson, Daniel E. O. Toole and Kirby W. Lee whose subj ect registration came
`
`due (May 20, 2014), during the course of the proceeding, for a Section 8 or 9
`
`Affidavit, from being able to MOOT the proceeding, and avoid judgment, by
`
`deliberately failing to file the required Affidavit of Use under Section 8, or renewal
`
`application under Section 9.
`
`There is a substantial likelihood that the plaintiff will prevail upon the merits in the
`final adjudication of this civil action no. l4—459C-COFC, 14-5130 CAFC, TTAB
`PROCEEDING NO. 92056888
`
`As a direct and proximate result of defendant's wrongful appropriation and
`exploitation of plaintiffs protected product, plaintiff have been forced to institute
`this action to protect such rights and seek the remedies available by law.
`
`The hardship upon which the plaintiff will and has endured will ensure from
`enjoining further criminal infringement of the copyright ownership and patent is
`continuing and irreparable.
`
`The issuance of the injunction will not just serve the public interest. To the
`contrary granting the injunctive relief sought will serve the express national
`purpose of protecting Federally and State created patent and or copyrights
`ownership rights.
`
`15 U.S.Code subsection 56 and 53 intervention (injunctive relief), and 17 U.S.
`
`code subsection 507.«La... /We/71 ,
`<Mza—:¢
`CW/\lO~(»</»52e>@
`
`34
`
`

`
`Congress has enacted 35 USC, section 283 expressly authorizing injunctive relief
`against patent or copyright ownership claim continue infringement in order to
`preserve the federally mandated monopoly created by federal and or state law for
`the benefit of the patent holder.
`
`4. RELIEF SOUGHT:
`
`Wherefore the plaintiff prey and for these reasons, plaintiff seek a temporary
`1.restraining order,
`I
`
`2. a preliminary injunction, and
`
`3. a permanent injunction,
`
`4.
`
`injunctive relief according to law,
`
`5.
`
`interests and
`
`6. any other remedies according to proof and law.
`
`
`
`

`
`Form 8
`
`FORM 8. Entry of Appearance
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`;:.\f.(4
`.2,
`--
`_;
`'r*~
`tr
`.
`hv. 2/illiifd
`fl‘i'P\’
`
`No.i
`
`ENTRY OF APPEARANCE
`
`(INSTRUCTIONS: Counsel should refer to Federal Circuit Rule 47.3. Pro se petitioners and
`appellants should read paragraphs 1 and 18 of the Guide for Pro Se Petitioners and Appellants.
`File this form with the clerk within 14 days of the date of docketing and serve a copy of it on the
`
`principal attorney for each party.)
`Please enter my appearance (select one):
`Pro Se
`Q/ks counsel for:
`
`I
`
`~ as W.
`- — — —
`__
`Name of party -'
`
`/
`
`
`
`R
`
`I am, or the party I represent is (select one):
`Ixhatitioner I:IRespondent ‘:IAmicus curiae I:ICross Appellant
`I;]AppeI1ant
`:Appellee
`[:[Intewenor
`
`As amicus curiae or intervenor, this party supports (select one):
`I—__"E_7—|Petitioner or appellant
`[:IRespondent or appellee
`My address and telephone are: T
`-J
`;
`‘
`Name:
`.. _.
`Hag,
`'
`[L
`R a
`Law firm:
`
`'3
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`Address:
`'
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`‘1
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`City, State and ZIP:
`/h]['_‘¢}_"_
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`1 ’ ff’.
`-4
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`Telephone:
`(5')
`_
`Fax #:
`"
`-'
`')
`E-mail address:
`Statement tobe completed by co use! only (select one):
`I$ I am the principal attorney for this party in this case and will accept all service
`for the party. I agree to infonn all other counsel in this case of the matters
`served upon me.
`as the principal attorney who will/will not
`[:1 I am replacing
`remain on the case. [Government attorneys only.]
`
`I
`
`Vii
`
`’
`
`'
`
`
`
`3
`
`I: I am not the principal attorney ‘for this party in this case.
`
`Date admitted to Federal Circuit bar (counsel only):
`
`This is my first appearance before the United States Court of Appeals for the Federal Circuit
`(counsel only):
`:lYes No
`:]A courtroom accessible to the handicapped is re 1 uired if or
`r
`‘
`l
`H is a
`Date
`(D I
`*-*—--Fr"
`
`
`{_
`
`__
`
`_
`
`. _
`
`____
`
`1
`
`123
`
`
`
`4is_ ecluied.
`
`

`
`Form 9
`
`FORM 9. Certificate of Interest
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`
`V.
`//lvllrigl #4 I
`/ ESQ
`
`
`
`No.
`
`
`
`CERTIFICATE OF INTEREST
`
`_E19_unse1 for the
`
`I
`I
`_
`if necessary):
`
`itioner) (appellant) (respondent) (appellee) (amicus) (name of party)
`
`‘certifies the following (use “None” if applicable; use extra sheets
`
`.\,‘I -
`
`I:
`
`_ J
`
`1.
`
`The full name of every party or amicus represented by me is:
`
`
`
`The name of the real party in interest (if the party named in the caption is not the real
`2.
`party in interest) represented by me is:
`
`
`
`All parent corporations and any publicly held companies that own 10 percent or more
`3.
`of the stock of the party or amicus curiae represented by me are:
`
`4. E] The names of all law firms and the partners or associates that appeared for the party
`or amicus now represented by me in the trial court or agency or are expected to appear in this
`court are:
`
` I .. ‘Signature of sel __
`
`
`_/Lo mu. fibyilgg (\ la .
`
`Printed name of counsel
`
`Please Note: All uestions must be answered
`cc:
`two‘ .-
`-*9
`
`l24
`
`

`
`Form 6
`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`I
`
`:_;E[;4e-/£.:;_
`
`
`
`Motion and Declaration for Leave to Proceed in Forum Pau eris
`
`INSTRUCTIONS: If you do not pay the fee, file this completed form with your petition for
`review or notice of appeal within 14 days of the date of docketing. Complete all questions in this
`application and then sign it. Do not leave any blanks; if the answer to a question is “O”, “none”,
`or “not applicable "(NfA), write in that response. If you need more space to answer a question
`or to explain your answer, attach a separate sheet of paper identified with your name, your case
`docket number, and the question number. Failure to fully answer the questions may result in a
`denial of the motion.
`
`Petitioner/Appellant hereby moves for leave to proceed in forma pauperis, pursuant to
`28 U.S.C. § 1915, in this case and submits the following declaration in support thereof:
`
`, am the Petitioner/Appellant in the
`1,
`above-entitled case. In support of my motion to proceed on appeal without being required to pay
`the docketing fee, I state that I am unable to pay the fee because of my poverty; that I believe that I
`am entitled to redress; and that the issues which I desire to present on appeal are the following:
`
`
`I further declare that the responses which I have made to the questions and instructions
`below relating to my ability to pay the docketing fee are true.
`
`For both you and your spouse, estimate the average amount of money received from
`1.
`each of the following sources during the past 12 months. Adjust any amount that was received
`weekly, biweekly, quarterly, semiannually, or armually to show the monthly rate. Use gross
`amounts, that is, amounts before any deductions for taxes or otherwise.
`
`Income source
`
`Average monthly amount
`during the past 12 months
`
`Amount expected
`next month
`
`You
`
`Spouse
`
`You
`
`Spouse
`
`Employment $ $ $ ( La
`Self-employment
`$
`4:;_’__x'
`$
`é
`.'
`$
`-’
`$
`{ .1’)
`Income from real property
`$
`4 J
`$
`-"J
`$
`$
`
`(such as rental income)
`
`mm/:4
`
`

`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis (continued)
`
`
`
`Form 6
`
`Average monthly amount
`during the past 12 months
`
`Amount expected
`next month
`
`_
`
`You ._
`$
`3; 5'; f-
`$
`(ii/ii’:
`$
`gig./1:‘
`$ g;
`
`Spouse
`$
`'
`$
`(2
`$
`$ -
`$ Q2;
`
`.5»)
`
`You
`$
`(:2 7'
`$
`gf
`$
`{"55
`$
`$ gig,‘--’
`
`Sponge
`$
`$
`
`$
`$
`
`Interest and dividends
`Gifts
`Alimony
`Child support
`Retirement (such as
`social security, pensions,
`annuities, insurance)
`
`DiS'<1biiiiY(Such as social
`$/'1 ii / ‘(JD
`$ ( Z}
`35
`$ $2I
`security, insurance payments)
`Unemployment payments
`$
`$
`,i-
`$
`$ (Z
`Public assistan e(such
`$ CA
`i’
`{E
`.-i
`§;/.3
`53
`39
`Hz‘
`as welfare)
`,
`_, _.
`_
`_
`$ @
`$ @
`5'4)"
`$
`$
`(2
`
`Other (specify)
`$ '3 ‘_\'iE-"'- ‘iii/9
`$
`(‘I /2
`$ 2“ 53% ,.«-‘; F-"'9
`('
`$
`'/21".";
`Total monthly income:
`List your employment history for the past two years, most recent employer first.
`2.
`(Gross monthly pay is pay before taxes or other deductions.)
`
`Employer
`
`Address
`
`in gm
`
`Dates of
`employment
`
`Gross monthly
`pay
`
`List your spouse’s employment history for the past two years, most recent
`3.
`employer first.
`(Gross monthly pay is pay before taxes or other deductions.)
`
`Employer
`__
`my 9_
`
`Address
`
`Dates of
`employment
`
`Gross monthly
`pay
`
`E Nglf so, you must attach a
`Yes
`4. Are you presently incarcerated?
`statement certified by the appropriate institutional officer showing all receipts, expenditures,
`and balances during the last six months in your institutional accounts. If you have multiple
`accounts, perhaps because you have been in multiple institutions, attach one certified statement
`
`057/17/iii’
`
`)«
`
`Us
`
`

`
`Form 6
`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis (continued)
`
`c W
`5. How much cash do you and your spouse have? $
`Below, state any money you or your spouse have in bank accounts or in any other financial
`institution. State the average monthly balance.
`
`~
`
`r
`
`Financial institution
`1-
`
`Type of account
`
`
`'
`,
`'
`.;s¢,-H,
`
`Amount you have
`35?)?
`[, at;
`
`$
`$
`
`Amount
`your spouse has
`rsjf aw:
`1100
`
`$
`$
`
`, which you own or your spouse owns. Do not list
`List the assets, and their val
`6.
`clothing and ordinary household furnishings.
`Home
`(Value) Other real estate
`
`(Value) Other assets
`
`(Value)
`
`"3,
`
`Other assets
`
`.- '
`
`
`
`
`
`Motor vehicle #2
`(Value) Motor vehicle #1
`Make, model & year:
`Make, model & year:
`
`if
`'
`. ’:
`K '4';
`' -.
`."._
`‘ /
`
`“ .-
`3
`
` Valuei alue-H:
`
`'
`
`Registration #:
`
`Registration #2
`
`State every person, business, or organization owing you or your spouse money, and
`7.
`the amount owed:
`
`Person, business
`or organization owing
`you or your spouse 1110116)’
`
`
`Amount owed to your
`spouse
`
`Amount owed to you
`
`
`
`
`
`
`
`

`
`Form 6
`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis (continued)
`
`Installment payments
`
`Motor vehicle
`Credit card (name):
`Department store (name):
`Other:
`Alimony, maintenance, and support paid to others
`Regular expenses for operation of business,
`
`{‘
`
`$
`$
`$
`$
`$ E‘
`$
`
`_
`
`' )4)
`$
`_
`Ir
`$ (2.;
`r 51”]
`$
`in
`r "
`Q:
`"'1 (“V $
`C. U517
`I
`5",:-_ 651)"
`$ é _Q"__-
`//‘l7
`$ gé/L 93))
`
`profession or farm (attach detailed statement)
`
`Other (specify):
`
`I .0)?
`$
`$ Lg:/jrép
`S /9
`i I
`$ 42,- (JP
`33 QQ’: do
`Total monthly expenses:
`10. Do you expect any major changes to your monthly income or expenses or in your
`assets or liabilities d
`' g the next 12 months?
`
`
`
`_Yes 4
`
`Ifyes, describe on an attached sheet.
`
`11. Have you paid, or will you be paying, an attorney any money for services in
`connection with this _ Mags, including the completion of this form?
`If yes, how much? $
`If yes, state the attomey’s name, address, and telephone number:
`
`No .
`
`Yes
`
`
`
`12. Have you paid, or will you be paying, anyone other than an attorney (such as
`a paralegal or a typist) any money for services in connection with this case, including the
`completion of this to
`?
`
`_Yes
`
`[ N3
`
`Ifyes, how much? $
`
`If yes, state the person’s name, address, and telephone number:
`
`
`
`Provide any other information that will help explain why you cannot pay the
`13.
`docketing fees for your appeal or petition for review.
`
`
`
`

`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis (continued)
`
`Form 6
`
`8.
`
`State the persons who rely on you or your spouse for support:
`
`Initials of Person
`
`Relationship
`
`Age
`
`_
`
`(
`f (1-6.)~ _"__
`all
`xii;
`
`9.
`Estimate the average monthly expenses ofyou’and your family. Show separately the
`amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly,
`semiannuall , or annuall
`to show the monthly rate.
`Y
`Y
`1
`“J P ()9
`You__
`I
`(L "._ Your spouse
`Rent or home mortgage payment
`$
`J)?
`(include lot rented for mobile home)
`
`__Yes
`Are real estate taxes included?
`Is property insurance included? _Yes
`Utilities (electricity, heating fuel, water, sewer,
`and telephone)
`Home maintenance (repairs and upkeep)
`Food
`Clothing
`Laundry and dry cleaning
`Medical and dental expenses
`Transportation (not including motor vehicle payments)
`Recreation, entertainment, newspapers, magazines, etc.
`Insurance (not deducted from wages or included
`in mortgage payments)
`
`""
`
`‘
`
`A
`
`H0meowner’s or renter’s
`Life
`Health
`Motor vehicle
`Other:
`Taxes (not deducted from wages or included
`in mortgage payments) (specify):
`
`,---
`
`$
`
`_-
`
`$ J
`$
`_
`‘
`$
`/4J
`$
`_’
`‘r
`$
`$
`$ 5.)
`
`(
`
`r
`
`_\
`
`$
`
`_
`
`(A7
`
`.
`
`$
`/‘/)0
`-.»-‘NM:
`
`$
`5 L.‘
`$ ‘H --
`*5”--W
`$ /r1..J, 59
`39 “I
`‘t ‘J ,1)?’
`$
`1'?‘4'.-‘
`
`r OD
`-u’ . 0D$
`39
`$ @5..”0
`3; Q J9
`$
`5 ga 0\7
`$
`(2%, d9
`$
`, m7
`$
`077
`$ 3, m7 $ 19
`-»
`$ (4). W $
`_
`-
`* (JD
`
`W/’é’L/‘t oxllwa/W.:75laQz,
`
`/*l~6l3<?5
`
`

`
`FORM 6. Motion and Declaration for Leave to Proceed in Form Pauperis (continued)
`
`Form 6
`
`
`
`
`
`_ filed a motion for leave to proceed in forma pauperis in any other
`es ,9
`No
`If yes, state the name and docket number of that case.
`
`_
`I,
`.
`'
`.
`___
`I
`.—-""
`
`14. Have yo _
`case in this court?
`4’
`i
`_
`
`the acldjress ofyour legal refidence:
`
`cw
`— I
`(5
`Your daytime phone number: (/1567)
`Your age:
`Your years of schooling:
`
`
`
`
`
`
`
`
`
`
`
`You must sign and date the declaration under penalty of perjury.
`
`DECLARATION UNDER PENALTY OF PERJURY
`
`I declare under penalty of perjury, under the laws of the United States, that my answers on this
`form are true and correct.
`
`I
`:1 Date
`
`'
`
`,.
`
`I
`
`_
`
`CC:
`
`I
`
`
`‘fr’
`.
`fig ;E -_II
`Petitioner’sfAppel1
`
`’s
`
`1
`ignature
`
`ORDER OF THE COURT
`
`The motion to proceed in forma
`pauperis is DENIED. The docketing
`fee must be paid within 14 days.
`
`The motion to proceed in forma pauperis
`is GRANTED. Let the applicant proceed
`without prepayment of the docketing fee.
`
`Circuit Judge or Clerk
`
`Date
`
`Circuit Judge or Clerk
`
`Date
`
`119
`
`

`
`L #436 OK u
`Case 1:13—cv-01417-CMH—IDD ‘Document 38-2 Filed 01/31/14 Page 2 of 4 PageID# 311
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`Mailed: November 3, 2013
`
`Cancellation No. 92056888
`
`Isaac A. Potter Jr.
`
`V.
`
`Toei Animation Co., Ltd.
`
`Before Bucher, Kuhlke and Gorowitz,
`Administrative Trademark Judges.
`
`By the Board:
`
`On August 12, 2013,
`
`the Board denied the parties’ respective motions for
`
`summary judgment and determined that the petition to cancel “does not state
`
`petit.ioner’s claims with particularity and includes several claims beyond the Board’s
`
`jurisdiction.” The Board allowed petitioner time in which to file “an amended
`
`petition to cancel which adequately pleads fraud” and noted that failure to comply
`
`would result in dismissal.
`
`Thereafter, petitioner filed several copies of an amended petition but failed to
`
`include a certificate of service on respondent’s counsel. On September 27, 2013, the
`
`Board issued an order allowing petitioner ten days in which to file proof of service of
`
`any or all of certain of its previously-filed and unserved communications. On
`
`l October 4, 2013, petitioner re-filed an amended petition to cancel for fraud, which
`T793 M9. 7Q¢5z89.
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`Ibo“.
`
`,/-gt ajfldé
`
`

`
`Case 1:13-cv-01417—CMH-|E)D' Document 38-2 Filed 01/31/14 Page
`
`rqiyo ’~’5CA’/
`of 4 PageID# 312
`
`Cancellation No. 92056888
`
`includes a certificate of service of a copy thereof on counsel for respondent on
`
`September 30, 2013.
`
`The Board has thoroughly reviewed petitioner’s amended pleading. The petition
`
`continues to include claims outside of the Board’s jurisdiction, e.g. “Violation of
`
`economic espionage act of 1996,” and does not adequately set forth a claim of fraud.
`
`In order to properly plead a claim of fraud in a trademark cancellation
`
`proceeding, a petitioner must allege with particularity the statement of facts upon
`
`which the belief is founded. See, e.g., DaimlerChrysler Corp. v. American Motors
`
`Corp., 94 USPQ2d 1086 (TTAB 2010). The amended pleading fails to sufficiently set
`
`forth a claim of fraud on the United States Patent and Trademark Office in the
`
`procurement or maintenance of Registration No. 3431651 because it does not allege
`
`the specific misrepresentation, if any, respondent knowingly made in obtaining or
`
`maintaining the registration. For example,
`
`the general statements that “the
`
`statement of use is fraudulent” (amended pleading ‘H 8) and that “false statements
`
`regarding ‘use’ whether the mark is in use or not and when that use started in the
`
`United States” (amended pleading 1l 9) are too Vague to support the claim. A “false”
`
`date of use is not material, and thus does not constitute fraud, unless the use did not
`
`commence until after the date of the filing of the statement of use, in this case
`
`March 6, 2008. See Standard Knitting, Ltd. 1). Toyota Jidosha Kabushilei Kaisha, 77
`
`USPQ2d 1917 (TTAB 2006); Colt Industries Operating Corp. U. Olivetti Controllo
`
`Numerico S.p.A., 221 USPQ 73, 76 (TTAB 1983) (“The Examining Attorney gives no
`
`consideration to alleged dates of first use in determining whether conflicting marks
`¢Tl~‘f’r.B (U0.
`5’/Q05z;2Q§i
`/03.1% /379
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`am /\)a.Jsi—1l3é
`
`g/,(Z‘£5//at
`
`

`
`K I «Jr, u\g2/
`" Case 1:13-cv—O1417-CMH-IDD Document 38-2 Filed 01/31/14 Page 4 of 4 Page|D# 313
`
`‘
`
`Cancellation No. 92056888
`
`should be published for opposition”). Notably, petitioner does not specifically allege
`
`that respondent never used the mark or that any use commenced after March 6,
`
`2008.
`
`Rather,
`
`the allegation continues to set
`
`forth imprecise and general
`
`statements.
`
`Because the pleading fails to sufficiently plead a claim of fraud, or any other
`
`available ground for cancellation which is under the Board’s jurisdiction, and
`
`consistent with the order issued on August 12, 2013, judgment is hereby entered
`
`against petitioner, and the petition to cancel is dismissed with prejudice.
`
`
`
`

`
`NaHcaWy)Pa( 7/9?///$4
`0 HR;
`C
`)
`
`f3jfi79éi
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Mailed: November 15, 2013
`
`Cancellation No. 92056888
`
`I