Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA657356
`ESTTA Tracking number:
`02/23/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92058315
`Defendant
`M22, LLC
`JOHN DIGIACOMO
`REVISION LEGAL PLLC
`148 E FRONT ST 3RD FLOOR
`TRAVERSE CITY, MI 49684
`UNITED STATES
`john@revisionlegal.com, john@revisionlegal.com
`Opposition/Response to Motion
`John Di Giacomo
`john@revisionlegal.com
`/JAD/
`02/23/2015
`Response to Motion for Judgment on the Pleadings - final2.pdf(968882 bytes )
`
`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`Proceeding No: 92058315
`
`
`
`
`State of Michigan
`
`Petitioner,
`
`
`
`v.
`
`
`
`
`
`
`M22, LLC,
`
`Registrant.
`
`
`
`
`________________________________________________________________
`
`
`RESPONSE TO PETITIONER’S MOTION FOR JUDGMENT ON THE PLEADINGS
`
`INTRODUCTION
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`I.
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`Registrant hereby responds to Petitioner’s Motion for Judgment on the Pleadings
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`and asserts that genuine issues of material fact remain for trial so as to preclude Petitioner’s
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`Motion.
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`II.
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`FACTS
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`Registrant is M22, LLC (“M22”), a limited liability company organized under the laws
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`of the State of Michigan, which was registered with the State of Michigan on May 19, 2003.
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`M22, LLC is the owner of several registered trademarks1. At issue in this matter are the
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`following two marks:
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`Mark: M 22 M22ONLINE.COM
`
`
`
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`1 M22 for use in association with wine (Reg. No. 3427900), M22 for use in association with retail store
`services (Reg Nos. 3992151 and 3992159), M 22 M22ONLINE.COM for use in association with apparel
`(Reg. No. 3348635), and THE M-22 CHALLENGE for use in association with athletic competitions (Reg
`No. 3996410).
`
`
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`1
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`

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`International Class 025: Apparel specifically hats, t-shirts, long sleeve shirts, sweat shirts,
`pants, shorts, underwear, tank tops.
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`First Use In Commerce: January 1, 2004 (“M22 Apparel Mark”)
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`
`
`
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`Mark: M22
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`International Class 035: Retail store services featuring clothing, sporting goods, and novelty
`items.
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`First Use In Commerce: November 21, 2007 (“M22 Retail Mark”)
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`(collectively, “M22 Marks”).
`
`
`M-22 is a Michigan state trunkline highway that originates in the resort community of
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`Traverse City, Michigan and travels the Lake Michigan coastline, including west Grand
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`Traverse Bay and the Sleeping Bear Dunes National Lakeshore, until its termination 3 miles
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`north of Manistee, Michigan. This area of Michigan has long served as a coastal retreat for
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`Chicago and Detroit residents and was recently named “Most Beautiful Place in America” by
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`ABC News. See “Sleeping Bear Dunes Voted ‘Most Beautiful Place in America,’” ABC News
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`(2011), available at http://abcnews.go.com/Travel/best_places_USA/sleeping-bear-dunes-
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`michigan-voted-good-morning-americas/story?id=14319616. Additionally, this area is home
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`to a variety of cultural and recreational activities, including sailing, surfing, fly-fishing,
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`kayaking, skiing, kiteboarding, numerous wineries and microbreweries, Michael Moore’s
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`Traverse City Film Festival, and the National Cherry Festival.
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`
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`Registrant’s M22 Marks are creatively dissimilar from the M-22 road sign.
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`
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`2
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`

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`
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`Specifically, Registrant’s M22 Marks consist of a modified M-22 road sign, which has been
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`modified by Registrant to increase its aesthetic appeal and suitability for a brand. Registrant
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`rounded the corners of the white diamond located in the middle of the sign, increased the
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`thickness of both the “M” and “22” located in the white diamond, and added a white border
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`around the outside of the mark for emphasis. Thus, Registrant’s M22 Marks are not, in fact,
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`a direct representation of the M-22 sign, but, rather, a derivative work of that sign.
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`Since as early as 2003, Registrant M22, through its predecessor in interest Broneah,
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`Inc., has sold a variety of goods, including apparel and wine, bearing the M22 Marks.
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`Registrant has become widely known across the United States for its M22 brand, which has
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`achieved wide popularity and notoriety within the kiteboarding industry and with millions of
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`tourists from across the world who have visited northwestern Michigan and consider the
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`area one of scenic beauty and relaxation. In short, M22 is not just a road, it is a way of life2.
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`2 As expressed by Registrant’s own website,
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`3
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`From 2003 to 2007, Registrant primarily sold its goods through retailers within the
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`State of Michigan. In November of 2007, however, Registrant opened its first retail store
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`located at 125 E. Front Street in the primary tourist-shopping district of Traverse City,
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`Michigan. Since opening its retail store in 2007, Registrant has expanded the sale of its
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`apparel to over 50 distributors in major Michigan cities, including in college towns such as
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`East Lansing, Michigan, home of Michigan State University. Registrant has become so well
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`known and respected within the State of Michigan that it was recently awarded the coveted
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`“Michigan 50 Companies to Watch” award by Governor Rick Snyder. See “Michigan
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`Celebrates Small Business,” Michigan Small Business and Technology Development
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`Center (2013), available at http://www.michigancelebrates.biz/past-winners/2013-mcsb-
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`award-winners/. And, prior to the filing of this Response, Registrant was recognized by the
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`State of Michigan on its “Pure Michigan” website, which is a campaign intended to tout the
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`benefits of doing business in the State of Michigan.
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`
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`Despite this recognition by the State of Michigan, the Attorney General issued an
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`advisory opinion on May 29, 2012, which stated that no entity could lawfully obtain
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`trademark rights in or to the M-22 sign under trademark law. See Michigan Highway Route
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`Marker Design As Trademark, Mich. Att’y Gen. Op. No. 7265, available at
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`http://www.ag.state.mi.us/opinion/datafiles/2010s/op10344.htm. State Representative Frank
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`D. Foster initiated the political process leading to this opinion, which began after Registrant
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`discovered that a company within Mr. Foster’s jurisdiction was producing counterfeit M22
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`M-22 was created to express a common passion for Northern Michigan. It is marked by
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`the simplicity and appreciation for natural wonders such as bays, beaches, and bonfires,
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`dunes and vineyards, cottages, friends and family everywhere.
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`See “About Us,” M22.com (2013), available at http://www.m22.com/about-us.
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`4
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`products and selling them to tourists at her retail store. Subsequent to this discovery,
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`Registrant sent the retail store a notice of infringement, and the retail store subsequently
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`contacted Representative Foster, which ultimately led to the involvement of the Attorney
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`General of Michigan. On December 3, 2013, Petitioner filed its original Petition to Cancel
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`with the Trademark Trial and Appeal Board. On December 23, 2013, Registrant filed a
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`Motion to Dismiss. In response, and on January 13, 2014, Petitioner responded to
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`Registrant’s Motion and filed a First Amended Consolidated Petition to Cancel. On January
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`22, 2014, Registrant filed its reply, which was deemed as a motion to dismiss by this Board.
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`Petitioner failed to timely respond. On May 31, 2014, this Board granted in part and denied
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`in part Registrant’s Motion to Dismiss, which largely dismissed Petitioner’s claims. This
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`Board took the step to warn Petitioner that “all grounds for relief and allegation in support
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`thereof must have a basis in law or fact….” Dkt. 13 at p. 16-17. On June 30, 2014,
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`Petitioner filed its Second Amended Consolidated Petition to Cancel. Registrant then filed
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`its Second Motion to Dismiss on July 25, 2014. On December 1, 2014, the Interlocutory
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`Attorney issued an order on Registrant’s Second Motion to Dismiss. In doing so, the
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`Interlocutory Attorney cautioned, in footnote 7, that this cancellation matter was instituted
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`over a year ago and, “At this point in the proceeding, the Board expects that the parties will
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`engage in sincere and focused efforts to settle, and/or will proceed with respect to the well-
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`pleaded grounds.”
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`
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`On December 23, 2014, Registrant filed its answer. Subsequently, on February 6,
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`2015, Petitioner filed its Motion for Judgment on the Pleadings. Now, Registrant responds to
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`Petitioner’s Motion for Judgment on the Pleadings.
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`III. STANDARD OF REVIEW
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`“A motion for judgment on the pleadings is a test solely of the undisputed facts
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`appearing in all of the pleadings, supplemented by any facts of which the Board may take
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`judicial notice.” Media Online, Inc., 88 U.S.P.Q. 2d 1285 (P.T.O. Sept. 29, 2008). For the
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`purposes of this motion, all well pled factual allegations of the non-moving party must be
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`accepted as true, while those allegations of the moving party that have been denied are
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`deemed false. Id. Conclusions of law are not taken as admitted. Id. All reasonable
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`inferences from the pleadings are drawn in favor of the nonmoving party. Id. A judgment on
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`the pleadings my be granted only where, on the facts as deemed admitted, there is no
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`genuine issue of material fact to be resolved, and the moving party is entitled to judgment
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`on the substantive merits of the controversy as a matter of law. Id.
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`IV. ARGUMENT
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`Petitioner contends that Registrant has failed to make a lawful use in commerce of
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`the M22 Marks. If the use of a mark upon which an application for registration is based is
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`not a lawful use in commerce, including a violation of a federal statute, registration must be
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`refused under Sections 1 and 45 of the Lanham Act. See In re Kayser-Roth Corp., 29
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`USPQ2d 1379, 1381 (TTAB 1993). Refusal of a registration based on an unlawful use of a
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`mark is proper “when the issue of compliance [with the pertinent statute] has previously
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`been determined (with a finding of non-compliance) by a court or government agency
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`having competent jurisdiction under the statute involved, or where there has been a per se
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`violation of a statute regarding the sale of the parties’ goods.” Kellogg Co. v. New
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`Generation Foods, Inc., 6 USPQ2d 2045, 2047 (TTAB 1988). The prior determination or per
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`se violation requirement arises out of the fact that the Trademark Trial and Appeal Board is
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`a body of an administrative agency of limited jurisdiction, which lacks the familiarity with
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`most acts necessary to deem a use an “unlawful use” as a matter of law. See Satinine
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`Societa in Nome Collecttivo Di S.A. E.M. Usellini, 209 U.S.P.Q. (BNA) 958 ¶ 958 (TTAB
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`Feb. 23, 1981) (“Inasmuch as we have little or no familiarity with most of these acts, there is
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`a serious question as to the advisability of our attempting to adjudicate whether a party’s
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`6
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`use in commerce is in compliance with the particular regulatory act or acts which may be
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`applicable thereto.”). A party alleging unlawful use must establish that the non-compliance
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`“was material, that is, was of such gravity and significance that the usage must be
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`considered unlawful – so tainted that, as a matter of law, it could create no trademark rights
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`– warranting cancellation of the registration of the mark involved.” Churchill Cellars, Inc.,
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`91193930, 2012 WL 5493578 (TTAB Oct. 19, 2012).
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`Petitioner asserts that Registrant has failed to make a lawful use in commerce of the
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`M22 marks because, in adopting and using the M22 Marks in commerce, Registrant has
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`violated the federal Highway Safety Act of 1966 regulations. Petitioner asserts that
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`Registrant’s use of the M22 Marks violates the Manual on Uniform Traffic Control Devices,
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`a manual of national standards for traffic control devices promulgated by the Federal
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`Highway Administration. Petitioner fails to allege that a previous court or administrative
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`body has held that Registrant’s use of the M22 Marks is unlawful. Consequently,
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`Petitioner’s claim can only be read as one alleging that Registrant has per se violated the
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`Highway Safety Act of 1966.
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`Petitioner broadly and inaccurately construes an administrative promulgation as its
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`sole support for its unlawful use claim. Petitioner bases its claim of unlawful use on a
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`violation of 23 U.S.C. § 109(d), 23 U.S.C. § 402(a), 23 CFR 655.603(a), and 23 CFR Part
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`655, Subpart F. The implementing language of the Highway Safety Act of 1966 states,
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`“[e]ach state shall have a highway safety program, approved by the Secretary [of
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`Transportation], that is designed to reduce traffic accidents and the resulting deaths,
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`injuries, and property damage.” 23 U.S.C. § 402(a)(1). Highway safety programs that are
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`required under the Highway Safety Act must “comply with uniform guidelines, promulgated
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`by the Secretary and expressed in terms of performance criteria….” 23 U.S.C. § 402(a)(2).
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`These criteria include the reduction of injuries and deaths due to excess motor vehicle
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`7
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`speed, the proper use of seat belts, the reduction of injuries and deaths due to impairment
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`by alcohol or drugs, and the improvement of driver performance through driving tests and
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`education. See 23 U.S.C. § 402(a)(2)(A)-(E). In its declaration of policy, the Highway Safety
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`Act of 1966 makes clear that its provisions are intended to “accelerate the construction of
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`Federal-aid highway systems.” 23 U.S.C. § 101(b)(1). To obtain federal participation in
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`highway funding, “the location, form and character of informational… signs… shall be
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`subject to the approval of the State transportation department with the concurrence of the
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`Secretary, who is directed to concur only in such installations as will promote the safe and
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`efficient utilization of the highways.” 23 U.S.C. 109(d). The Manual on Uniform Traffic
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`Control Devices (“Manual”) is intended to implement these policies, see 23 CFR 655.603,
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`and Petitioner contends that the Manual, which states that all traffic control devices within
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`the Manual are in the “public domain” and that “[t]raffic control devices contained in [the]
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`Manual shall not be protected by a patent, trademark, or copyright, except for the Interstate
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`Shield and any items owned by FHWA,” serves to prohibit Registrant from making a lawful
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`use of the M22 Marks. See Manual on Uniform Traffic Control Devices 2009, pg. I-1.
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`While the Highway Safety Act of 1966 may condition a state’s receipt of federal
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`highway funds on adoption of the Manual, the Highway Safety Act does not prohibit states
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`from rejecting federal funds and the Manual. See 23 U.S.C. 402(c) (discussing the
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`conditions on federal highway funds); see also 23 U.S.C. § 145 (“The authorization of the
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`appropriation of Federal funds or their availability for expenditure under this chapter shall in
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`no way infringe on the sovereign rights of the States to determine which projects shall be
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`federally financed.”); 23 CFR 655.603(b)(2) (“States and other Federal agencies are
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`encouraged to adopt the National MUTCD in its entirety as their official Manual on Uniform
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`Traffic Control Devices.”). Nor does the Highway Safety Act of 1966 provide the Secretary
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`of Transportation with the congressional authority to promulgate rules concerning, or to
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`regulate the creation of, intellectual property rights. In fact, the stated purpose of the
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`Highway Safety Act is to “reduce traffic accidents and deaths and injuries to persons
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`resulting from traffic accidents.” National Traffic and Motor Vehicle Safety Act of 1966, Pub.
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`L. No. 89-563 (1966). Simply put, the Highway Safety Act, and its implementing regulations,
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`is a federal law intended to condition the disbursement of federal highway funds on the
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`adoption of a federal safety manual to aid in the reduction of deaths on United States
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`highways, not to regulate the creation of trademark rights.
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`Petitioner’s allegations concerning unlawful use request that the Board not only
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`recognize the Manual as a regulation applicable to the formation of trademark rights, but
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`also find that the Manual, a document promulgated by an administrative body with a limited
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`authority to create rules related to highway safety, supervenes the Lanham Act, an act of
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`Congress. “It is axiomatic that where there is a conflict between a statute enacted by the
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`legislature and a rule or administrative regulation promulgated by an administrative
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`agency… the statute must prevail.” Melamine Chemicals, Inc. v. United States, 732 F.2d
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`924, 927 (Fed. Cir. 1984). It is a basic principal of American government that “[a]ll legislative
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`Powers… shall be vested in a Congress of the United States….” U.S. Const. Art. I § 1.
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`Thus, where Congress’ intent, clearly stated within a duly enacted statute, comes into
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`conflict with a regulation promulgated by an administrative body of the executive branch,
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`Congress’ intent controls. See United States v. Maxwell, 278 F.2d 206, 210-11 (8th Cir.
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`1960) (“It is established law that legislative power rests in Congress and that the will of
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`Congress as unambiguously expressed in a properly enacted statute cannot be amended or
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`altered by regulation. Regulations are entitled to consideration in construing an ambiguous
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`statute. However, a regulation to the extent it is in direct variance with an unambiguous
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`statutory provision is clearly void.”). Here, even accepting Petitioner’s interpretation of the
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`Manual as true, Petitioner’s claim of unlawful use must fail because the Manual cannot
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`supervene the Lanham Act, which states that “[n]o trademark… shall be refused
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`registration” except as specified in 15 U.S.C. § 1052.
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`But Petitioner’s interpretation of the Manual is inaccurate. The Manual’s audience is
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`state and local government, not the general public3. The Manual advises both state and
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`local transportation planners that they cannot obtain intellectual property rights in the traffic
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`control devices contained in the Manual, and the reasons for this mandate are twofold.
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`First, the Manual is created by a federal department, and the federal government, by
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`statute, cannot obtain copyright protection for its works. See 17 U.S.C. § 105 (“Copyright
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`protection under this title is not available for any work of the United States Government….”).
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`Since the federal government cannot obtain copyright rights to its works, the federal
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`government in turn would rightfully require states adopting those works to refrain from
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`obtaining copyright rights in them as well. Second, the Manual provides numerous graphical
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`examples of traffic control devices to be adopted by states as their own traffic control
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`devices. If a state were to obtain copyright or patent rights in or to these graphical
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`examples, it could preclude all other states from adopting them, which would render the
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`national standards contained in the Manual, the very purpose of the Manual, useless. Thus,
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`the Department of Transportation rightfully instructs the states that they cannot obtain
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`3 Specifically, the Department of Transportation’s website states:
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`Who Uses the MUTCD? And How?
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`In the public sector, the most obvious MUTCD users are the State and local
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`transportation planners and traffic engineers who design our roads and locate the traffic
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`control devices that help drivers navigate them safely.
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`See Department of Transportation, Federal Highway Administration: Who Uses the MUTCD? (2013),
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`available at http://mutcd.fhwa.dot.gov/kno-users.htm.
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`10
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`intellectual property rights in any traffic control device design or application provision
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`contained within the Manual.
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`This interpretation is echoed by the previous versions of the Manual. Specifically, in
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`December 2000, the Manual was updated to its modern form. In this updated form, the
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`Manual began using text headings to explain the effect of certain sections of its text. Those
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`sections labeled “standards” concern statements “of required, mandatory, or specifically
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`prohibitive practice regarding a traffic control device.” See Manual on Uniform Traffic
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`Control Devices 2000, pg. I-3. Those sections labeled “support” concern informational
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`statements that do “not convey any degree of mandate, recommendation, authorization,
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`prohibition, or enforceable condition.” See Manual on Uniform Traffic Control Devices 2000,
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`pg. I-4. In its 2000 form, the Manual stated:
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`
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`Standard:
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`Any traffic control device design or application provision contained in this
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`Manual shall be considered to be in the public domain. Traffic control devices
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`contained in this Manual shall not be protected by a patent or copyright,
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`except for the Interstate Shield.4
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`Support:
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`The need for uniform standards was recognized long ago. In the early years,
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`the necessity for unification of the standards applicable to the different
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`classes of road and street systems was obvious. To meet this need, a joint
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`committee of [organizations] developed and published the original edition of
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`this Manual of Uniform Traffic Control Devices (MUTCD) in 1935.
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`See Manual on Uniform Traffic Control Devices 2000, pg. I-1. Thus, since its 2000 revision,
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`the Manual’s “support” of the “standard” prohibiting states from obtaining intellectual
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`4 The term “trademark” was added to this section in subsequent versions of the Manual.
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`property rights in traffic control devices makes clear that the purpose underlying this
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`mandate is to prohibit states from upsetting the national standards by exercising exclusive
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`rights over the designs contained within the Manual.
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`Based on the above, it is clear that genuine issues of material fact remain to be
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`resolved. Specifically, whether the Manual of Uniform Traffic Control Devices applies to
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`prohibit private citizens from obtaining trademark rights in sign components is a factual
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`issue that must be resolved through further development of the record. Such further
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`development will include the introduction of documentary evidence showing that the history
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`of the Manual establishes that the alleged prohibition was intended to provide for uniform
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`standards for traffic control devices, not to prohibit private individuals from using sign
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`components in registered trademarks. Further development of the record is also necessary
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`to determine whether the Manual is capable of supporting a “lawful” or “unlawful”
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`determination as it relates to private parties or whether it is a condition precedent for a state
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`to receive federal highway funding.
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`
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`Additionally, further development of the record is necessary to determine whether
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`Registrant’s defenses of laches, acquiescence, estoppel, consent, and waiver successfully
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`prohibit Petitioner’s prosecution of a claim that Registrant has not made a lawful use of the
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`M22 Marks in commerce. Specifically, as cited in Registrant’s applications for registration,
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`Registrant has used the M22 Marks in commerce since as early 2004. Further development
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`of the record is necessary to determine whether Registrant’s use of the M22 Marks in
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`commerce for a period of over ten (10) years has acted to preclude Petitioner’s assertion of
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`unlawful use, whether through consent, prejudicial delay, or otherwise.
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`
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`Finally, even if Interlocutory Attorney finds that no genuine issues of material fact
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`remain, Interlocutory Attorney should find, as a matter of law, that Petitioner has failed to
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`establish a claim for unlawful use. It is clear that an administrative regulation, which
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`12
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`originates from enabling language with the expressed purpose to “reduce traffic accidents
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`and deaths and injuries to persons resulting from traffic accidents,” cannot possibly preempt
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`the clear Congressional intent found at 15 U.S.C. § 1052 that provides the standard for
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`what marks can achieve federal trademark registration. National Traffic and Motor Vehicle
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`Safety Act of 1966, Pub. L. No. 89-563 (1966). Further, the Manual’s purported prohibition
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`on trademark registration is so far removed from its enabling language so as to make clear
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`that no per se violation can be found. Kellogg Co., 6 U.S.P.Q. 2d 2045 (P.T.O. Mar. 3,
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`1988) (“In any event, while we readily concede some unfamiliarity with the applicability of
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`the Food, Drug, and Cosmetic Act and related regulations regarding shipments of the type
`
`involved herein, we conclude that New Generation has fallen far short of demonstrating, by
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`clear and convincing evidence, that Kellogg’s shipments were per se violations of said
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`statute and regulations.”).
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`If a per se violation were found, the Manual’s alleged prohibition on obtaining
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`intellectual property rights would serve to invalidate a wide array of trademarks containing,
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`in whole or in part, sign components contained within the Manual. By way of example,
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`acceptance of Petitioner’s argument would invalidate a large majority of the marks currently
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`listed under design search code 18.15.03:
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`Excerpt from Design Search Codes
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`13
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`Excerpt from Manual
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`Such a result not only has no basis in law, but the policy implications are so wide ranging
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`and damaging that it would result in an absurdity. Consequently, Petitioner’s Motion for
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`Judgment on the Pleadings must be denied.
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`14
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`V. CONCLUSION
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`For the foregoing reasons, Petitioner’s Motion for Judgment on the Pleadings must
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`be denied.
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`
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`_/s/ John Di Giacomo
`John Di Giacomo
`Eric Misterovich
`148 E. Front St.
`3rd Floor
`Traverse City, MI 49684
`Phone: (231) 714-0100
`Fax: (231) 714-0200
`Email: john@revisionlegal.com,
`eric@revisionlegal.com
`Attorneys for Registrant
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`15
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`CERTIFICATE OF SERVICE
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`I, Jessica Schimpf, hereby certify that a true and correct copy of the foregoing Response to
`Petitioner’s Motion for Judgment on the Pleadings has been served on James Scott, counsel for
`Petitioner, via emailing said copy to jscott@wnj.com, as the parties have agreed, on February 23,
`2015.
`
`
`
`/s/ Jessica Schimpf
`Jessica Schimpf
`REVISION LEGAL, PLLC
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`16