Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA685741
`ESTTA Tracking number:
`07/24/2015
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`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92058162
`Defendant
`Sayed Najem dba Social Network
`CHRISTINE K BUSH
`HINCKLEY ALLEN & SNYDER LLP
`50 KENNEDY PLAZA SUITE 1500
`PROVIDENCE, RI 02903
`UNITED STATES
`sayednajem@hotmail.com, cbush@hinckleyallen.com
`Opposition/Response to Motion
`Christine K. Bush
`cbush@hinckleyallen.com
`/Christine K. Bush/
`07/24/2015
`Registrant_s Objection to Motion to Reopen Time # 1 53394747.pdf(576411
`bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`____________________________________
`ALEXANDER KRONIK,
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`Petitioner,
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`SAYED NAJEM
`d/b/a SOCIAL NETWORK
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`Registrant.
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`Cancellation No. 92058162
`Registration No. 4094706
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`REGISTRANT’S OBJECTION TO MOTION
`TO REOPEN TIME TO FILE BRIEF
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`Registrant, Sayed Najem d/b/a Social Network (“Registrant”), by its attorneys, hereby
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`objects to Petitioner, Alexander Kronik’s (“Kronik”), Response to Order to Show Cause/Motion
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`to Reopen Time to File Brief” (the “Motion”) and states as follows:
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`INTRODUCTION
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`Kronik’s Motion should be denied. Kronik failed to make the required showing to justify
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`his failure to file a Trial Brief before time expired. In fact, Kronik not only failed to identify and
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`meet the standard, but he also failed to serve the Motion as reflected on the Certificate of
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`Service. For these reasons, and as set forth more fully below, Kronik’s Motion should be denied
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`and judgment should enter in favor of Registrant dismissing the petition for cancellation with
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`prejudice.
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`FACTS
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`1.
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`On November 4, 2013, Petitioner, represented by Patel & Almeida, P.C, filed a
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`Petition for Cancellation and, at the same time, filed a petition to revive Petitioner’s application
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`to register ALIKE, Application Serial No. 85595094.
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`1
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`2.
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`On November 6, 2013, the Trademark Trial and Appeal Board (“TTAB”) issued
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`an Order setting case deadlines.
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`3.
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`On December 12, 2013, Registrant filed an Answer to the Petition, denying all
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`substantive allegations and asserting affirmative defenses.
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`4.
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`5.
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`6.
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`On June 9, 2014, Registrant filed a Motion to Extend certain deadlines.
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`On August 7, 2014, the TTAB reset the case deadlines as follows:
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`Plaintiff’s Pretrial Disclosures Due
`Plaintiff’s 30-day Trial Period Ends
`Defendant’s Pretrial Disclosures Due
`Defendant’s 30-day Trial Period Ends
`Plaintiff’s Rebuttal Disclosures Due
`Plaintiff’s 15-day Rebuttal Period Ends
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`11/5/2014
`12/20/2014
`1/4/2015
`2/18/2015
`3/5/2015
`4/4/2015
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`On March 5, 2015, Petitioner served Rebuttal Disclosures. (Exhibit 1 to
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`Declaration of Christine Bush, ¶ 3 attached hereto as Exhibit A.)
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`7.
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`Pursuant to TBMP § 801.02(a), Plaintiff’s Trial Brief was due on or before June
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`5, 2015.
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`8.
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`9.
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`Plaintiff did not file a Trial Brief on or before June 5, 2015.
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`Petitioner has never filed a Trial Brief.
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`10.
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`On June 16, 2015, the TTAB issued an Order to Show Cause that allowed Kronik
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`30 days to show cause why the TTAB should not treat the failure to file a brief as a concession of
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`the case, failing which a judgment dismissing the petition for cancellation with prejudice would
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`be entered (the “Show Cause Order”).
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`11.
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`Registrant did not receive Kronik’s Motion responding to the Show Cause Order
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`until July 23, 2015. (Declaration of Christine Bush, ¶ 4 attached hereto as Exhibit A.)
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`12.
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`Although the Motion includes a sworn Certificate of Service representing that the
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`document was served via the United States Postal Service, postage prepaid on July 15, 2015, in
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`fact, the document was served via Federal Express. (Exhibit 1 to Declaration of Christine Bush,
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`¶ 5 attached hereto as Exhibit A.)
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`13.
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`As is reflected from the Federal Express envelope attached to the Declaration of
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`Christine Bush, Kronik did not deposit the document with Federal Express until July 19, 2015,
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`for delivery on July 23, 2015. (Exhibit 2 to Declaration of Christine Bush, ¶ 6 attached hereto as
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`Exhibit A.)
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`14.
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`Kronik’s Motion includes six paragraphs. Kronik served no separate brief with
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`the Motion.
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`15.
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`Paragraph 3 of the Motion references non-specific emergency matters purportedly
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`beyond Kronik’s control, but it does not identify the nature of the alleged emergency matters,
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`when the matters started, or when the matters resolved.
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`16.
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`Paragraph 4 of the Motion references an attached police report, purportedly dated
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`January 27, 2015. That attachment, which is hearsay, purports to reflect only that police were
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`dispatched based on a telephone call in connection with vandalism to a vehicle. Crediting the
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`document, the dispatched police officer was on site for approximately 5 minutes; it includes no
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`notation that a rescue vehicle or ambulance was called to address any personal injuries in
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`connection with the vandalism.
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`17.
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`At all times in this proceeding, and as of this filing, Petitioner has been, and
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`continues to be represented by counsel, Patel & Almeida, P.C.
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`18.
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`The Motion does not reflect that there were any impediments to Patel & Almeida,
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`P.C.’s filing a Trial Brief on behalf of Petitioner before the time expired.
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`3
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`ARGUMENT
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`To reopen an expired period pursuant to Fed. R. Civ. P. 6(b)(1)(B), Kronik must show
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`excusable neglect. See Vital Pharmaceuticals, Inc. v. Kronhom, 99 USPQ 1708, 1710 (TTAB
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`2011); see also TBMP §§ 509.01(b)(1) (3d ed. 2011). Four factors are considered, within the
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`context of all the relevant circumstances, to determine whether a party’s neglect of a matter is
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`excusable: (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its
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`potential impact on judicial proceedings; (3) the reason for the delay, including whether it was
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`within the reasonable control of the moving party; and, (4) whether the moving party has acted in
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`good faith. See Pioneer Investment Services Company v. Brunswick Associates Limited
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`Partnership, 507 U.S. 380, 395 (1993); Dating DNA LLC v. Imagini Holdings Ltd., 94 USPQ2d
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`1889, 1892-3 (TTAB 2010) (weighing all four factors together, motion to reopen discovery
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`denied; opposer’s “oversight” in failing to timely serve initial disclosures and seek an extension
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`of the discovery period does not constitute excusable neglect). The factors are not given equal
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`weight. Kronhom, 99 USPQ at 1710 (citing FirstHealth of the Carolinas Inc. v. CareFirst of
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`Maryland Inc., 479 F.3d 825 , 81 USPQ2d 1919, 1921-22 (Fed. Cir. 2007) (Court affirmed
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`finding of no excusable neglect based on second and third factors, with third weighed heavily in
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`the analysis)). The Board has also noted on numerous occasions, consistent with several courts,
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`that the third factor may be considered the most important factor in any particular case. See, e.g.,
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`Pumpkin Ltd. v. The Seed Corps, 43 USPQ2d 1582, 1586 fn.7 (TTAB 1997).
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`Pursuant to TBMP § 502.02(a) and 37 C.F.R. § 2.127(a), Kronik was required to file a
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`brief with his Motion to Reopen Time to File Brief. He did not. To the extent the Motion
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`embodies the substance of the brief, see TBMP § 502.02(a), the Motion fails to address or satisfy
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`the relevant standard.
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`4
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`Turning to the third factor, which is the most critical for the analysis, Kronik apparently
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`posits that vandalism to a vehicle in January somehow prevented counsel from timely filing a
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`Trial Brief in June. Yet, the Motion does not even expressly link the scant evidence offered to an
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`argument that Kronik’s counsel could not meet the deadline for filing the Trial Brief. For that
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`reason alone, Petitioner’s Motion should be denied. HKG Industries Inc. v. Perma-Pipe Inc., 49
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`USPQ2d 1156, 1158 (TTAB 1998) (failed to provide evidence linking the reason for the delay
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`with the expiration of movant’s testimony period).
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`Additionally, between the time of the alleged car issue (January 2015) and the filing of
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`the Motion, Kronik, through counsel, served Rebuttal Disclosures. Those March 2015 Rebuttal
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`Disclosures reflected that Kronik intended to offer testimony within the remaining period.
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`Presumably, if the vehicular vandalism were as personally devastating as Kronik would
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`lead one to believe in the Motion, that would have precluded service of the Rebuttal Disclosures
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`and offering testimony prior to April 4, 2015. It did not. In short, Kronik’s current contention is
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`belied by his activities in the proceeding, and should not be credited. See Kronhom, 99 USPQ at
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`1711 (finding no excusable neglect where opposer’s argument was contradicted by his actions in
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`the same period); FirstHealth, 81 USPQ at 1922 (same).
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`Kronik, who initiated this proceeding, has the burden of prosecuting it. He has been
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`represented by counsel at all times, and he should have sought an extension of the briefing
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`schedule if, in fact, the January car vandalism materially affected his ability to participate in this
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`case and/or prepare a Trial Brief for filing in June. See Kronhom, 99 USPQ at 1711. That did
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`not happen. To the contrary, Kronik’s counsel did not even file the Motion, which further calls
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`into question what effect, if any, a 6 month old, five minute interlude someone had with a police
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`officer had on the filing of the Trial Brief. Put simply, the one page police report from January is
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`5
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`not sufficient to support a claim of excusable neglect.
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`With respect to the first factor (prejudice) – this proceeding has weighed heavily on
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`Registrant, which has an actual offering under ALIKEU that is under a cloud from Kronik’s
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`meritless proceeding. A judgment dismissing the petition for cancellation is warranted and will
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`free Registrant from the burden and expense of this proceeding.
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`With respect to the second factor (delay) – Petitioner seeks an additional 45 days within
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`which to file a Trial Brief. That would move the deadline from early June (now expired) to early
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`September and likely push resolution of this proceeding into next year.
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`As for the fourth factor (bad faith) – from the very beginning of this case, Registrant has
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`asserted that Petitioner has engaged in bad faith dealings with the PTO, including manufacturing
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`evidence. (See Dkt. Nos. 5 (affirmative defense of fraud), 11 (Registrant’s Objection to Motion
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`to Amend). Although there is no way to prove that the police report attached to the Motion is
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`fraudulent, it is at least suspicious as part of this filing: (1) the document reflects “Liudmila
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`Kronik” not Alexander Kronik; (2) it purports to reflect a phone call concerning a vehicle, but
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`there is no “caller address” or “caller phone” identified; (3) there are no “persons” identified;
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`and (4) there are no “incident comments.” Nothing in that document supports Kronik’s
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`statement that he was on a “medical leave” receiving treatments that precluded him (not his
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`counsel) from filing a Trial Brief.
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`CONCLUSION
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`For the forgoing reasons, Registrant respectfully requests that Petitioner’s Motion be
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`denied and judgment be entered dismissing the petition for cancellation with prejudice.
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`SAYED NAJEM D/B/A SOCIAL NETWORK
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`Dated: July 24, 2015
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` By: /s/ Christine K. Bush
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`Christine K. Bush, Esq.
` Hinckley, Allen & Snyder LLP
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`100 Westminster Street
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`Suite 1500
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`Providence, Rhode Island 02903
`cbush@hinckleyallen.com
`Attorneys for Registrant
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`CERTIFICATE OF TRANSMISSION
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`I, Christine K. Bush, hereby certify that this Objection is being electronically transmitted
`to the United States Trademark Trial and Appeal Board via ESTTA on July 24, 2015.
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`/s/ Christine K. Bush
`Christine K. Bush
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`THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No. 92058162
`Registration No. 4094706
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`ALEXANDER KRONIK,
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`Petitioner,
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`v.
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`SAYED NAJEM
`d/b/a SOCIAL NETWORK
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`Registrant.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing Objection to Petitioner’s
`Response to Order to Show Cause/Motion to Reopen Time to File Brief has been served on
`Petitioner by mailing said copy on July 24, 2015, via First Class Mail, postage prepaid to:
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`Paulo A. de Almeida
`Alex D. Patel
`Patel & Almeida, P.C.
`16830 Ventura Blvd., Suite 360
`Encino, CA 91436
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`/s/ Christine K. Bush
`Christine K. Bush
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`#53394747
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`9
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`EXHIBIT A
`EXHIBIT A
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`THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No. 92058162
`Registration No. 4094706
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`ALEXANDER KRONIK,
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`Petitioner,
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`v.
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`SAYED NAJEM
`dfbfa SOCIAL NETWORK
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`Registrant.
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`DECLARATION OF CHRISTINE K. BUSH
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`1, Christine K. Bush, under oath depose and state as follows:
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`1.
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`2.
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`3.
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`4.
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`I am counsel to Registrant Sayed Najem d/bla Social Network.
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`The statements in this Declaration are based on my personal knowledge.
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`On March 5, 2015, Petitioner served Rebuttal Disclosures (Exhibit 1).
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`Registrant did not receive Petitioner’s Response to Order to Show Cause/Motion
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`to Reopen Time to File Brief” (the “Motion") until July 23, 2015.
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`5.
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`Although the Motion includes a sworn Certificate of Service representing that the
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`document was served via the United States Postal Service, postage prepaid on July 15, 2015, in
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`fact, the document was served via Federal Express.
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`6.
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`Attached hereto as Exhibit 2 is a true and accurate photocopy of the Federal
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`Express envelope received from Kronik. As is reflected in the upper right hand corner, it was
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`shipped on July 19, 2015 for delivery on July 23, 2015.
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`I declare under penalty of perjury that the foregoing
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` Dated: July 24, 2015
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`#53397986
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`EXHIBIT 1
`EXHIBIT 1
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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. 9205 8162
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`Registration No. 4094706
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`) Mark: ALIKEU
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`Alexander Kronik,
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`Petitioner,
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`V.
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`Sayed Naj em,
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`Respondent.
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`PETITIONER‘S REBUTTAL DISCLOSURES
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`Petitioner, Alexander Kronik ("Petitioner"), hereby makes the following rebuttal
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`disclosures. Petitioner reserves the right to supplement these disclosures, should additional
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`information become available.
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`I.
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`VVITNESSES WHOSE TESTIMONY PETITIONER INTENDS TO TAKE
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`1. Alexander Kronik, Petitioner, Address: 2340 Powell St., Suite 108, Emeryville,
`CALIFORNIA 94608, to be contacted through undersigned counsel;
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`Subjects for Mr. Kronik may include use of Petitioner's mark, including first and
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`prior use; nature of goods offered by Petitioner under his mark, including goods offered
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`through Apple, Inc.; likelihood of confusion between Petitioner's and Respondent's
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`marks; Sayed Najern and Yalkin Demirkaya‘s false statements and misrepresentations
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`II.
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`DOCUMENTS AND EXHIBITS PETITIONER EXPECTS TO INTRODUCE
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`Petitioner intends to present and testify regarding the following types or categories of
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`documents: documents regarding Petitioner's use of its mark; Petitioner's advertising and
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`marketing; documents introduced by Respondent via Notice of Reliance and/or in depositions
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`taken during Respondent's testimony period; documents showing the relatedness of the
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`goods/services, including documents taken from the internet and from the USPTO website;
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`documents regarding purported third party use of ALIKE, ALIKEU, andlor similar designations
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`Petitioner ‘will supplement this disclosure in accordance with 37 C.F.R. § 2.120(a) and
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`Fed. R. Civ. P. 26(e) if it discovers additional categories of documents that it may use to support
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`its claims in this proceeding.
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`Dated: March 5, 2015
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`Respectfully submitted,
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`By:
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`fPaulo A. de Almeida
`Paulo A. de Almeida
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`Alex D. Patel
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`Patel & Almeida, P.C.
`16380 Ventura Blvd., Suite 360
`Encino, CA 91436
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`Attorneys for Petitioner,
`Alexander Kronik
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`PROOF OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing PETITIONER'S REBUTTAL
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`DISCLOSURES has been served on Christine K. Bush, counsel for Respondent, on March 5,
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`2015, via First Class U.S. Mail, postage prepaid to:
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`CHRISTINE K BUSH
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`Hinckley Allen
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`50 Kennedy Plaza Suite 1500
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`PROVIDENCE, RI 02903
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`/Paulo A. de Almeida
`Paulo A. de Almeida
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`EXHIBIT 2
`EXHIBIT 2
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