Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1019032
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`Filing date:
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`11/29/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`92057485
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
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`Signature
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`Date
`
`Attachments
`
`Plaintiff
`The Coca-Cola Corporation
`
`JOHNS C RAWLS
`BAKER WILLIAMS MATTHIESEN LLP
`1177 WEST LOOP SOUTH, SUITE 1600
`HOUSTON, TX 77027
`UNITED STATES
`rocky@bwmtx.com, sarah@bwmtx.com
`713-888-3535
`
`Opposition/Response to Motion
`
`John C. Rawls
`
`rocky@bwmtx.com, katie@bwmtx.com, sarah@bwmtx.com, trade-
`marks@bwmtx.com
`
`/John C. Rawls/
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`11/29/2019
`
`COCA LEAF 92057485 OPP. TO 11.9.19 RULE 60 MOTION FILED
`11.29.19.pdf(103654 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` Opposition No. 92057485
`
`RESPONSE TO MOTION TO VACATE
`JUDGMENT
`
`
`
`
`In re: Supp. Reg. No.: 4,259,407
`Mark: COCALEAF
`Registered: December 11, 2012
`
`
`THE COCA-COLA COMPANY,
`Plaintiff,
`
`v.
`
`JUAN RODRIGUES,
`Defendant.
`
`
`
`
`
`
`Plaintiff The Coca-Cola Company ("Plaintiff"), by and through its undersigned
`counsel, and in accordance with Rule 2.127 of the Trademark Rules of Practice, files this
`Response to Defendant’s Motion to Vacate Judgment dated November 3, 2019 (the
`"Motion"). Defendant’s Motion requests relief, pursuant to Federal Rule of Civil Procedure
`60, from the final decision of the Trademark Trial and Appeal Board (the “Board”)
`dismissing the above-referenced matter. Defendant’s Motion should be denied because
`Defendant cannot demonstrate that extraordinary circumstances exist to justify granting
`the Motion, as required under Rule 60(b)(6), the only applicable subsection of Rule 60,
`and the Motion is founded on constitutional issues, which are outside the jurisdiction of
`the Board.
`Defendant moves “to vacate all the judgments enter [sic] by the Board AJ as
`unconstitutional under the recent holding of Arthrex, 18-2140, (Federal Cir. October 31st,
`2019).” In Arthrex, Inc. v. Smith & Nephew, Inc., et al., -- F.3d. --, 2011 WL 5616010 (Fed.
`Cir. 2019), the Federal Circuit held that the appointment of Administrative Patent Judges
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`-1-
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`

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`(“APJs”) violated the Appointments Clause. The Court explicitly limited its holding to
`matters in which “the final decision was rendered by a panel of APJs . . . .” Id. at *11.
`Rule 60(b) provides relief from a final judgment, order, or proceeding for the
`following reasons:
`(1) mistake, inadvertence, surprise, or excusable neglect;
`(2) newly discovered evidence that, with reasonable diligence, could not
`have been discovered in time to move for a new trial under Rule 59(b);
`(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
`or misconduct by an opposing party;
`(4) the judgment is void;
`(5) the judgment has been satisfied, released, or discharged; it is based on
`an earlier judgment that has been reversed or vacated; or applying it
`prospectively is no longer equitable; or
`(6) any other reason that justifies relief.
`Fed. R. Civ. P. 60(b). The Motion does not specify under which of the grounds available
`pursuant to Rule 60(b) Defendant purports to seek relief. Because the Motion fails to
`allege any of the grounds for relief authorized by subsections (1) through (5), subsection
`(6) is the only potentially applicable subsection of Rule 60.
`Relief from a final judgment is an extraordinary remedy to be granted only in
`exceptional circumstances. See TBMP § 544; Djeredjian v. Kashi Co., 21 USPQ2d 1613,
`1615 (TTAB 1991). The determination of whether a motion under Rule 60 should be
`granted is a matter that lies within the Board’s sound discretion. See id. Where, as here,
`a motion for relief from judgment is made without the consent of the adverse party, the
`movant “must persuasively show (preferably by affidavits, declarations, documentary
`evidence, etc., as may be appropriate) that the relief requested is warranted for one or
`more of the reasons specified in Rule 60(b).” TBMP § 544.
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`-2-
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`“Extraordinary circumstances” must be present for a movant to obtain relief under
`Rule 60(b)(6). See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863–64,
`108 S.Ct. 2194 (1988). The Motion fails even to argue that extraordinary circumstances
`justify relief from the Board’s final judgment in this matter, nor could it. Even if the holding
`in Arthrex were applicable to Trademark Administrative Judges—and it is not—the recent
`decision places Defendant in the same position as thousands of others who have had
`matters decided by Trademark Administrative Judges appointed in the same manner as
`those who issued the final decision from which Defendant seeks relief.
`Moreover, as Defendant is well-aware, the constitutional issue raised by the Motion
`is beyond the purview of the Board.1 “The Board, being an administrative tribunal, has no
`authority to declare any portion of the Act of 1946, or any other act of Congress,
`unconstitutional.” TBMP § 102.01 (2019) (citing In re District of Columbia, 101 USPQ2d
`1588, 1602 (TTAB 2012) (no authority to declare provisions of the Trademark Act
`unconstitutional), aff’d sub nom. In re City of Houston, 731 F.3d 1326, 108 USPQ2d 1226
`(Fed. Cir. 2013); Blackhorse v. Pro-Football Inc., 98 USPQ2d 1633, 1638 (TTAB 2011)
`(same); Harjo v. Pro-Football, Inc., 50 USPQ2d 1705, 1710 (TTAB 1999) (same), rev’d
`on other grounds, 284 F. Supp. 2d 96, 68 USPQ2d 1225 (D.D.C. 2003); Hawaiian Host,
`Inc. v. Rowntree MacKintosh PLC, 225 USPQ 628, 630 (TTAB 1985) (no authority to
`
`
`1 Defendant has attempted to raise the same constitutional issue in at least three other TTAB proceedings
`involving Opposer. For example, in The Coca-Cola Company v. Alberto Somohano-Soler, TTAB Opp. No.
`91232090, Defendant filed two motions to dismiss, which argued that the appointment of Board Judges is
`unconstitutional. Id. 4 TTABVUE (Jan. 9, 2017) and 5 TTABVUE (Jan. 12, 2017). The Board declined even
`to consider the motions, and prohibited Defendant from filing any further unconsented motions in the
`proceeding without obtaining the Board’s prior approval. Id. 7 TTABVUE 1-2 (Feb. 6, 2017) (“The Board is
`not empowered to decide constitutional issues. See TBMP § 102.01 (2017) and footnote 4 therein
`(recognizing that constitutional issues are outside of the Board’s jurisdiction, which is limited to determining
`the registrability of trademarks in the United States). Accordingly, Applicant’s Motions will be given no
`consideration.”). The Board had refused to consider the same or similar arguments made by Defendant in
`two previous oppositions. See The Coca-Cola Company v. Alberto Somohano-Soler, TTAB Opp. No.
`91218529, 18 TTABVUE 3 (April 30, 2015) and The Coca-Cola Company v. The Red Luna, Opp. No.
`91216818, 15 TTABVUE 6 (December 15, 2014); see also The Coca-Cola Company v. Alberto Somohano-
`Soler, TTAB Opp. No. 91232090, 50 TTABVUE 5-6 (March 13, 2019) (including Opposition Nos. 91218529
`and 91216818 in a chart summarizing Defendant’s “continuing pattern of dilatory conduct”).
`
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`-3-
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`declare Trademark Act § 44(e) unconstitutional); Electric Storage Battery Co. v. Mine
`Safety Appliances Co., 143 USPQ 163, 167 (TTAB 1964) (no authority to find Trademark
`Act § 23 unconstitutional)).
`
`CONCLUSION
`In light of the foregoing argument, Opposer respectfully requests that the Board reject
`Defendant’s Motion.
`
`Date: November 29, 2019
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`By:
`
`
`/John C. Rawls/
`John C. Rawls
`Baker Williams Matthiesen LLP
`5005 Woodway Drive, Suite 201
`Houston, Texas 77056
`Tel: (713) 888-3535
`Fax: (713) 888-3550
`
`-4-
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`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`In re: Supp. Reg. No.: 4,259,407
`Mark: COCALEAF
`Registered: December 11, 2012
`
`THE COCA-COLA COMPANY,
`Plaintiff,
`
` Opposition No. 92057485
`
`CERTIFICATE OF SERVICE
`
`v.
`
`JUAN RODRIGUES,
`Defendant.
`
`
`
` I
`
` hereby certify that, on this day, I have served the foregoing RESPONSE TO
`MOTION TO VACATE JUDGMENT on Defendant in this matter by emailing a true and
`correct copy thereof to the following correspondence email addresses of record:
`asus@republicofcuba.life
`cocaleafcompany@gmail.com
`uremailcontact@gmail.com
`
`Date: November 29, 2019
`
`
`
`By:
`
`/s/Sarah Silbert
`Sarah Silbert
`Baker Williams Matthiesen LLP
`5005 Woodway Drive, Suite 201
`Houston, Texas 77056
`Tel: (713) 888-3535
`Fax: (713) 888-3550
`
`
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