throbber
BULKY
`DOCUMENT
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`(FILED ON PAPER - ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`jProceeding No.
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`j92061574
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`I Filing Date
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`j 11127/2015
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`jPartj lof j 1 I
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`92061574
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`TTAB
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`SKIPPY, INC.,
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`Petitioner,
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`v.
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`HORMEL FOODS, LLC,
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`Respondent.
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`Cancellation No. 92061574
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`PETITIONER'S OPPOSITION TO RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
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`Petitioner, Joan Crosby Tibbetts ("Tibbetts"), serves in her dual role as Administratrix of the
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`Percy Crosby Estate and as President of Skippy, Inc. As such, she seeks redress for the unlawful taking
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`of property from the Percy Crosby estate under New York law, by Respondent's predecessor, Rosefield
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`et al. That key issue was not addressed in the Skippy decisions Respondent claims are res judicata and
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`supposedly bar Petitioner from seeking cancellation of Rosefield SKIPPY registration, No. 0504,940. In
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`view of the extraordinary circumstances underlying the history of fraud, it is unconscionable for
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`Respondent to ask this Honorable Board to dismiss this Petition with prejudice. The PTO is under a
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`congressional mandate to protect the public interest, and not to give protection to registrants who steal
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`another's trade name and good will, thereby becoming unjustly enriched, using vexatious litigation to
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`silence dissent.
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`I. STATEMENT OF GENUINE ISSUES OF FACT
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`1.
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`Respondent's references to the decisions in 1980 and thereafter as "Skippy I, II, Ill and
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`IV" are misleading. The actual Skippy I is the 1934 decision of the Examiner of Interferences, Skippy, Inc.
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`v. Rosefield Packing Co., Ltd., Opposition 13,134, which became final when not appealed, and is res
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`judicata. (Petition Exhibits 1-4, 7). This case should have terminated in 1934, 37 CFR 2.136.
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`\ \\\\\\ \\\\\ \\\\ \\\\\\ \\\\\ \\\\ \\\\\\ 11\11\\\\\11\\1 \Ill \\\I
`*11-27-2015*
`u .S. Patent and T rademar1< Office 4172
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`2.
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`Skippy II: P.L. Crosby prose v. Rosefield, filed in New York, Petition, 13, 31(b)
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`Respondent's predecessor refused to allow discovery, 1980 set seq ..
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`3.
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`Skippy Ill: New York County Surrogate Court 1967 decision for Administratrix (published
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`NY Law Journal, 1/24/67). Petition at 15.
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`4.
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`Skippy IV: Joan Tibbetts v. Rose Stein, Esq., New York County Supreme Court, a
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`stockholder derivative suit; decision Feb. 8, 1968, Skippy ownership awarded to Crosby heirs. Petition at
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`14-15. Exhibits Al, A2.
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`5.
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`Skippy V: Skippy, Inc. v. CPC Int'/ Inc., 210 USPQ 589 (E.D. Va. 1980); 674 F.2d 209 (4th
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`Cir. 1982; cert. denied, _U.S._(1982). Rosefield §15 affidavit held false as a matter of law, and
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`vacated, Id. at 216. Petition at 2.
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`6.
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`Skippy VI: Skippy, Inc. v. Lord, Day & Lord, 1981-85 (S.D.N.Y.) dismissed, collateral
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`estoppel. LDL should have been named joint tortfeasor in Skippy V. See WSJ, Exhibit A3.
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`7.
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`Skippy VII: CPC v. Skippy, Inc., Joan Tibbetts, 651 F. Supp. 62 (E.D. Va. 1986), reversed in
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`part, 214 F.3d 456 (4th Cir. 2000).
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`8.
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`9.
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`Skippy VIII: CPC v. Skippy, Inc., (1982-87), 3 USPQ2d 1456 TIAB (1987).
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`Skippy IX: CPC/Bestfoods v. Skippy, Inc. and Joan Tibbetts, 214 F.3d 456 (4th Cir. 2000)
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`(contempt order rev'd, remand on Rule 65(d). Bestfoods then merged with Unilever (aka Lipton).
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`10.
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`Skippy X: Skippy, Inc. v. Lipton Inv. Inc., Cancellation 32,070 dismissed with prejudice,
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`TIAB 2002 (Respondent's EXHIBIT A).
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`11.
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`Skippy XI: Skippy, Inc. v. Lipton, (§1071(b)), 345 F. Supp. 2d. 582 (E.D. Va. 2002).
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`12.
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`Skippy XII: Skippy, Inc. v. Lipton and attorneys Webner and Trattner, 02-1571, (E. D. Va.
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`2002), unpublished. Independent action in equity re defendant attorneys' complicity in fraud on the
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`1980 Skippy court (new evidence, a 112-page complaint). Motion to dismiss granted. When cert. was
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`denied, defendants sought Rule 11 sanctions ($42,000 award waived for Petitioner and counsel to
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`2
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`dismiss sanctions appeal). Case ended, Aug. 2005. Respondent omits this decision, a companion case to
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`Skippy X and XI.
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`13.
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`Respondent omits Skippy XII but cites over 15 times the district court's 2002 decision,
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`345 F. Supp. 2d 582 (Skippy XI) that the appeals court held was erroneous, Swatch AG v. Beehive
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`Wholesale, LLC, 739 F.3d 150 (4th Cir. 2014). In Swatch, the Fourth Circuit clarified the standard of
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`review that district courts must apply to decisions by the TIAB in actions brought under 15 U.S.C. §
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`1071(b). Swatch held that "where new evidence is submitted, de novo review of the entire record is
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`required because the district court 'cannot meaningfully defer to the PTO's factual findings if the PTO
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`considered a different set of facts."' 739 F.3d at 156 (quoting Kappas v. Hyatt, 132 S. Ct. 1690, 1697
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`(2012)). In so holding, the Fourth Circuit implicitly overruled its per curiam affirmance of the district
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`court's decision in Skippy XI, on which Respondent relies. At page 6 of Respondent's Reply in Support of
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`the Motion to Dismiss (now Motion for Summary Judgment), Respondent states that "Petitioner
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`misreads" the Swatch and Timex decisions. (Reply at 6)
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`14.
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`The new standard in Swatch is favorable to Petitioner; the new evidence in Skippy XI and
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`XII was ignored by Judge Cacheris during the half-hour hearing in December of 2002. It was in that
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`hearing that Respondent's former counsel (Webner) told the district court that client was "not prepared
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`to discuss" the 1905 Act statute or the 1934 Skippy decision, alleging that it was one of Tibbetts' "quaint
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`legal theories."
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`15.
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`In addition to the above-numbered 12 Skippy cases, there were six cases from 1981 to
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`1997 in which Tibbetts and Skippy, Inc. were either plaintiffs or defendants in state and federal courts
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`(D. Ct. Md.; Fairfax County, VA, (crim. and civil); Colorado state and federal courts; and Maine state and
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`federal courts). Respondent's predecessor orchestrated these actions with the stated intent to
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`"destroy" Petitioner's licensing business and to "wipe out" Tibbetts' finances. As Administratrix,
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`3
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`Tibbetts became the target of extortion schemes after Crosby's death, which conspiracy began in 1934,
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`immediately following the final decision of the Examiner of Interferences (Petition at 8-9, Exhibits 2, 3).
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`16.
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`The stated threat in Exhibits 2 and 3 to complain to the criminal division of the Justice
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`Department about the then-Skippy Opposer in 1933-34 "should Skippy, Inc. ever attempt to exercise any
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`legal action against our client" [Rosefield] (italics supplied) was carried out over years of reprisal,
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`vexatious litigation, and disparagement of Percy Crosby's reputation as famed Skippy creator. Rosefield
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`was thus enabled to build its SKIPPY empire by a hostile takeover of Skippy, Inc. that was concealed from
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`the PTO, government agencies, and the Crosby heirs for years. Now, Respondent as 2013 SKIPPY buyer(cid:173)
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`assignee avoids this dark history to procure summary judgment, alleging that Petitioner is barred by res
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`judicata and failure to file a compulsory counterclaim. Respondent's motion to dismiss is the fifth
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`motion since 1933, when applicant Rosefield's motion to dismiss was overruled in 1934 by the Examiner
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`of Interference (Petition Exhibit 7, the 1954 Wenderoth summary before the PTO file was destroyed in
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`1965-66 is quoted at p. 10 of Respondent's EXHIBIT C) ..
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`17.
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`In Skippy V, Respondent's assignor (CPC) was granted summary judgment in 1980 on
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`laches/estoppel, falsely telling the court that "Percy Crosby and Skippy, Inc. slept on their rights for 47
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`years [1933-1980]." What was not disclosed was Percy Crosby's false imprisonment as a ward of New
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`York State, his pleas for release ignored, Exhibit A4, and that CPC (through its Chicago agent) was trying
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`to buy all Skippy assets from disloyal Crosby fiduciaries without the custodial court's approval, for a
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`mere $4,000. Exhibit AS. That hasty scheme to prevent the valuable Skippy assets from becoming part
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`of the estate was aborted because Percy Crosby (then comatose) died the day of that closing, and his
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`daughter was appointed to administer the estate and marshal assets owed to the estate, known or
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`unknown.
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`18.
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`In CPC's deposition of Tibbetts, and as trial witness, she was told by counsel (Trattner)
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`not to mention anything about the New York actions or years of high-pressure negotiations with CPC's
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`4
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`Chicago agent. (Lawless client d/b/a Windy City Features.) She relied, to her detriment, on counsel's
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`misleading advice that it was "irrelevant" to the fact that CPC had an incontestable Skippy registration
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`that must be challenged, as Petitioner's sole legal claim. Though he recommended her for law school,
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`when she was accepted he told her not to waste time getting a law degree, but said he would take this
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`"exceptional case" and file it in Virginia (the "Rocket Docket"), stating that it was "your most favorable
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`forum." As a layperson, Tibbetts was unaware of important jurisdictional issues when he refused to
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`heed the instruction of Crosby estate counsel to sue CPC in New York. After he was fired (Petition at 7,
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`9), several pro bono lawyers advised Petitioner to extend her legal research to antitrust law and RICO
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`predicate acts. (Petition at 18). "This case smells of a fix to avoid paying you." (Attorney Cahn)
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`19.
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`It was not until 2000, after the Fourth Circuit reversed the contempt order against
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`Petitioner and Tibbetts, 214 F.3d 456, holding that the case "raises serious First Amendment issues,"
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`that she was able to retain Mary Helen Sears (former patent examiner with over 40 years IP expertise).
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`See Respondent's EXHIBIT C. After the Skippy X, XI, XI/ litigation ended, Sears wrote her legal opinion
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`before her 2006 retirement, Exhibit A6. Petitioner sent it to Unilever - its law department with
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`attorneys Webner, Trattner - and to Hormel, which should have raised a red flag of future
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`consequences, but was met with silence. Presumably, Respondent's new counsel read it before filing
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`this Motion to Dismiss the Petition to Cancel registration No. 0504,940.
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`20.
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`Composite Exhibit A7 is the 2013-14 series of 14 letters between Petitioner, Hormel
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`General Counsel, and its senior trademark attorney. Efforts to discuss were fruitless, and Hormel
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`continued to file 3 more SKIPPY applications that are now registered despite Petitioner's Letters of
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`Protest and Petition to the Director. (Petition at 26-28).
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`21.
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`The validity of the "release" that Petitioner signed at the demand of CPC in 1977
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`(Exhibit A19) was an important issue in Skippy V. But the court was not told that the Skippy IV New York
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`court in 1968 ordered defendant Stein (CPC co-conspirator) to release plaintiff-Administratrix and
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`5
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`Skippy, Inc. from future suits and judgments involving SKIPPY (Exhibit AS) and to assign back to Skippy,
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`Inc. valuable radio, TV, and merchandising rights she misappropriated. Exhibit A19. The Fourth Circuit,
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`unaware of the New York court orders, found that "the district court was not clearly erroneous in ruling
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`that the release barred Skippy, lnc.'s claims against CPC for use of the mark Skippy for peanut butter."
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`674 F.2d 209, 213 (1982). Respondent claims the release clause in that option agreement (a contract of
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`adhesion signed under duress) is valid. This is incorrect, but Respondent remains willfully blind to make
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`restitution for conversion of another's property and refusal to return or pay for the taking ...
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`22.
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`The late Victor Kramer, former federal prosecutor and known expert in antitrust law,
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`stated adamantly in 1984 to Tibbetts, "You had no authority whatever to release CPC from antitrust
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`violations. Only the government can." He told her by phone that CPC's demand for release (Exhibit
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`A19) was "unenforceable." CPC knew then it was a defendant in 28 government and private antitrust
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`actions, including the California Cartwright Act (antitrust) of which Tibbetts was unaware. Kramer,
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`stating that CPC had a "notorious" record in the FTC and DOJ, advised her to "(1) follow the money, (2)
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`suspect the worst, and (3) always ask cui bono."
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`23.
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`Kramer corroborated Petitioner's research that Congress, during the 1946 Lanham Act
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`hearings, was asked by the DOJ to insert a clause in the incontestable statute, i.e., 15 U.S.C. §111S(b)(7),
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`that no mark will become incontestable "if it is, or has been, used to violate the antitrust laws." Yet,
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`despite the Fourth Circuit's 1982 decision finding Rosefield's §15 affidavit false under §1065(1), the
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`register has not been corrected under §1119. CPC counsel Webner continued to tell the Board in 1985
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`that Reg. 0504,940 remains incontestable. (Exhibit A 12)
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`24.
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`The Board found otherwise in Mister Leonard, Inc. v. Jacques Leonard Couture, Inc., 23
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`USPQ 2d 1064, 1066 (TIAB 1992) and cancelled the mark in question. "This Board will not tolerate a
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`situation where an officer of a registrant knowingly provides false, material information to counsel for
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`the preparation of a Section 8 and/or 15 affidavit .... Accordingly, we find that as a matter of law,
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`6
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`registrant committed fraud on the PTO in connection with the Section 15 portion of its combined
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`Section 8 and 15 declaration filed ... in 1989." The Board has synthesized this standard in Mister
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`Leonard to three elements: Statements that are (1) "false" (2) "material," and (3) "made knowingly."
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`Attorney Peter Sloane's article in 2009 on "Incontestability," citing the Mister Leonard decision,
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`concluded, "The time seems ripe for another TIAB decision addressing fraud in incontestability claims."
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`25.
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`Petitioner and her husband met with Assistant U.S. Attorney, Joseph Aronica, then chief
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`of criminal division (E.D, Va.) in January of 1986, after Petitioner's counsel, James Kurtz, suddenly
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`withdrew from Board proceedings, tried to force Tibbetts to discontinue sales of its licensed SKIPPY
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`caramel corn/peanuts pail (Exhibit AlO) and warned, "CPC and Webner will continue to sue until you
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`and your husband are dead, dead, DEAD!" (his yelled emphasis). Mr. Aronica, on viewing the SKIPPY pail
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`and other documentary evidence concealed from the 1980 Skippy court, said: "You have given me
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`strong evidence of CPC's fraud on the court." He added, "if CPC carries out its threats to sue, I will
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`consider filing an appearance, but want to think about the criminal elements first." Exhibit All.
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`26.
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`CPC did sue weeks later, naming Joan Crosby Tibbetts as co-defendant, who was then
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`prose before the TIAB after Kurtz withdrew. His words in September of 1985 were ominous: "Without
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`me, you're before a kangaroo court. The Patent Office is angry at you for meddling in its business, and
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`will get even - but make it look legal." CPC counsel Webner had then filed "OPPOSER'S REQUEST FOR
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`CORRECTION OF DECISION." Petitioner believes that threat was made by Webner, speaking without
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`permission of the PTO, whom Kurtz said was "angry" at discovering the SKIPPY caramel corn pail. As
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`Kurtz had filed comprehensive interrogatories to CPC and said Webner was also angry, it can be inferred
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`from Kurtz's unusual, very nervous demeanor that Webner's client also threatened him to withdraw,
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`which he refused to discuss. As this problem with some of Petitioner's lawyers withdrawing has been a
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`regular pattern, and Kurtz's withdrawal severely prejudiced Petitioner's prose defense, Exhibit A12 ..
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`7
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`27.
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`Further, Petitioner believes that the threat to "get even-but make it look legal" was
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`used by Webner to assert failure to file a compulsory counterclaim in 1986 when Tibbetts filed her pro
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`se cancellation petition, while named co-defendant by CPC (Skippy VII}. Respondent's heavy reliance on
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`that rule is reprehensible given the scorched-earth tactics Webner was using to maintain a stranglehold
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`over Petitioner, and the serious heart attack of Waldo Tibbetts (Exhibit A13). Although Webner retired
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`in 2011 as his client's "mouthpiece," it is inconceivable that Hormel was unaware of any of the Skippy
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`legal history during its due diligence investigation in 2013 as SKIPPY buyer.
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`28.
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`In view of the Board's 1992 decision in Mister Leonard, supra, Petitioner requests that
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`the Board take closer scrutiny of its rejection in May 1986 of Petitioner's prose Petition to cancel
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`registration 0504,940 for failure to file a compulsory counterclaim. (Respondent EXHIBIT B) Tibbetts did
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`file her Petition on April 10, 1986 as "Administratrix of the Percy Crosby Estate, under the laws of the
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`State of New York" (where she was then attempting to petition the New York County Supreme Court to
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`re-open the estate on grounds of fraud).
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`29.
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`Schnur and Cohan v. Academy of Motion Picture Arts and Sciences, 223 F .2d 478 (CCPA,
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`1955 is instructive and parallels the factual history of Skippy under the 1905 Act. There, the Acting
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`Commissioner held the "registration was clearly prohibited by Section 5(b) of the Trade-Mark Act of
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`1905. The prohibition of the statute is absolute, and a registration issued contrary thereto is void ab
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`initio." Id. at 479. The court further held: "Passage of time cannot validate a void registration, no matter
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`how large the registrant's business may have grown during the period the mark remained on the
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`register. Laches is not available as a defense in an action to remove a void registration from the
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`register." Id. at 480. Petitioner contends the Schnur decision is applicable to its Petition to Cancel
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`Rosefield registration 0504,940 on the same grounds, without being hamstrung by res judicata and the
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`compulsory counterclaim rule that was not applicable under the 1905 Act.
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`8
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`30.
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`In 1977, Tibbetts met with CPC in-house counsel, Hanes Heller, whose inter-office
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`memo was a misrepresentation of more serious issues discussed: (i) he said he had a copy of the 1933-
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`34 Opposition in his briefcase, but refused to show at her request; (ii) he offered to pay Tibbetts $10,000
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`to file dissolution of Skippy, Inc. in Delaware; (iii) although he said "we have had all members of the
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`Crosby family under surveillance for years," he did not disclose that CPC was a silent partner with
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`defendant-attorney Stein in the Crosby estate action; (iv) he falsely stated he had no knowledge of
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`trademark law when, in 1972, he signed the §15 affidavit for SKIPPY peanuts (registration since
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`abandoned); (v) he asked Tibbetts, "What would you do if you had all the money in the world?"; (vi)
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`when she said it would be used to sue and seek redress for her father's cruel treatment by Rosefield, he
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`said, "We tried to settle with your father but he disappeared"; (vii) he denied knowledge that Lord, Day
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`& Lord represented CPC, but said he could "help" her retrieve the firm's legal files of Crosby/Skippy they
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`had refused to release; (viii) he admitted that "what Rosefield did was unconscionable, but we have no
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`liability"; (ix) he lied that the statute of limitations had run, but said "you could have sued years ago"; (x)
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`he asked what her plans were to exploit Skippy-when told that there was a proposal for a kid's
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`educational TV program, he immediately said, "We'll sponsor it" and complimented Tibbetts for her
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`"creative" ideas. "Get Skippy on the bandwagon and we'll hop aboard." Meeting ended with his "We'll
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`be in touch." The Heller Memo is attached as Composite Exhibit 19, which document he conceived of
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`and wrote to "get her off our back" (the $25,000 check to Skippy, Inc. to exercise option).
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`31.
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`His memo admitting "(l]n the past we did 'plagiarize' in our labeling some of the Skippy
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`comic concepts, notably the little boy and the fence" was later denied. The memo was directed to John
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`Volkhardt, then head of the "Skippy division," whose sworn testimony to the Examiner during FDA
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`peanut butter hearings in 1965-66 was: "Skippy was originally named after the cartoon character who is
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`painting a fence." 427 F.2d 511 (3d Cir. 1970). Memo recipient Richard Siebrasse also testified in 1986
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`9
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`that the origin of SKIPPY peanut butter was the character, stating that it's "common sense." See
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`Respondent's Motion, EXHIBIT C.
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`32.
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`When Tibbetts phoned Heller on June 22, 1977, stating her intent to renew the SKIPPY
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`trademark for prints & publications (Reg. 1,129,551), Heller said that could create a "problem" and that
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`"we have ways of preventing" it. A month later, Skippy's Candle & Incense Co. filed its SKIPPY
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`application. When registered, the Examiner declared an interference with Petitioner's then application,
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`requiring Petitioner to cite use only for a comic strip to avoid creating confusion. (This was to CPC's
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`great advantage when telling the Skippy V court there was no likelihood of confusion between the comic
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`strip and peanut butter.) Tibbetts did not see the specimen booklet until much later and was shocked at
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`the contents. It was a copy of mobster Dutch Schultz's numbers-game racket in the 1930s, which the
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`Detroit police told her was "sold only to the lowlifes." Composite Exhibit Al4. When she returned to the
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`Trademark Search room to get a clean copy, the specimen had disappeared. Although both registrations
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`are "dead," it is the sinister words alluding to a cartoonist, insane asylum, torture, and archaic words
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`used by the Mob that were disturbing, especially since Tibbetts got death threats and warnings such as
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`"something could happen to your family" from anonymous callers. This outfit filed another registration
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`in 1985, telling the Examiner that the application was Skippy's corporate name.
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`33.
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`After reading the hundreds of Crosby/Skippy legal files LDL sent In May of 1978, Tibbetts
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`phoned Heller that the withheld files were highly material and the option agreement with release clause
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`was rescinded (Exhibit A19). His smug reply was, "I thought you would find them helpful." She told him
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`that Skippy, Inc. would sue to cancel Rosefield registration, to which he replied, "You do that and we'll
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`fight you to the death!" He slammed down phone and hung up. It was the last time she spoke to him,
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`though he testified in his 1980 deposition that he was paid "to get her off our back" and said CPC never
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`intended to exercise the option. Tibbetts did sign under duress, having been told that "CPC has
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`considerable influence in Washington corridors and can see to it that certain doors remain forever
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`10
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`closed unless you sign the release .... otherwise, you'll never get beyond the doors of our legal
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`department."
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`a.
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`Abraham Bogorad (deceased), former PTO examiner and TTAB judge, who was
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`Petitioner's expert witness in 1980, testified that Rosefield's §15 affidavit in Reg.
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`0504,940 "was not only false, but fraudulent." When CPC counsel persisted in suing
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`Petitioner before the Board, despite the Fourth Circuit's holding (674 F.2d 209, 216), he
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`advised Tibbetts to file a grievance with the D.C. Bar. "Webner could be disbarred for his
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`misconduct before the PTO. The 1934 Skippy decision is final." See Letter of D.C. Bar
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`Counsel to Tibbetts. Exhibit Al3.
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`b.
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`Murrell Leach, retired TTAB chair, told Tibbetts by phone in December of 1984 that the
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`1934 Skippy decision "is not only res judicata, but indubitably cited the leading
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`American Steel Foundries v. Robertson decision," 269 U.S. 372 (1926), in the 1905 Act
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`"Name Clause" proceedings,§ S(b). The 1954 Wenderoth memo of Skippy opposition
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`No. 13,134 does not cite the case(s) the Examiner used in 1933-34. (Petition Exhibit 7)
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`34.
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`In Ms. Sears' complaint, Skippy XII (02-1571 unpublished) alleging fraud on the court and
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`seeking sanctions, inter alia, against attorney Webner - Ms. Sears wrote:
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`Defendant Webner is responsible for unleashing a veritable reign of terror upon
`Plaintiffs President, Joan Crosby Tibbetts, by constantly threatening and harassing her
`and her late husband, Waldo Tibbetts ... even to the point of threatening the death
`and/or impoverishment of each of them. In particular, Mr. Tibbetts' heart condition ...
`with the caution he should avoid the stress of litigation ... as ... Webner was timely
`informed, suffered greatly from aggravated stress as a result of ... Webner's activities
`in the 1986 case and in ... Patent Office oppositions 65,712 and 65, 713. These
`activities ... had a substantial role in ... Mr. Tibbetts' severe heart attack of May l,
`1986, further hospitalization and his further collapse at the end of 1986 ... followed by
`a severe stroke from which he never recovered.
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`Defendant Webner's willing participation in perpetrating and/or abetting a continuing
`fraud on the court, the Plaintiff and the USPTO, and his callous conduct ... repeatedly
`intimidating ... and threatening Plaintiffs officers ... in their livelihood ... go far
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`11
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`beyond the requisites of his duty to represent client CPC ... and constitute severe
`damage to the system of justice .... " P. 108-09, ~~ 171-72.
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`35.
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`In a similar case under the Virginia extortion statute, 18.2-59, Battlefield Builders v.
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`Swango, 743 F.2d 1060 (4th Cir. 1984), it was held that plaintiff did allege extortion and attempted
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`extortion under Virginia law, which "is immune to a Rule 12 motion to dismiss." (Emphasis supplied)
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`Defendant's counsel in Battlefield was also co-counsel with Webner in the Skippy case, 1980-82. Brian
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`Gettings (deceased 1995) was a former U.S. Attorney (E. D. Va.) and a RICO expert.
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`36.
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`Petitioner's original Opposition at 4-5 on the issue of judicial estoppel is significant.
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`Respondent denies that its predecessor changed positions and prevailed on the issue of likelihood of
`
`confusion. The doctrine is designed to prevent a party from "playing fast and loose with the rule of law"
`
`to protect a court from deception. In CPC's motion for summary judgment on laches/estoppel in 1980,
`
`CPC stated: "Defendant CPC has denied in its answer any likelihood of confusion as to source of origin
`
`between Skippy, lnc.'s comic strip and CPC's peanut butter. Nothing contained in this statement of
`
`points and authorities should be construed as a waiver of that position." P. 14, n.1. The district court
`
`relied on this position, finding no confusion, as did the Fourth Circuit (although it did find that
`
`Rosefield's label was "arguably suggestive" of Percy Crosby's Skippy lettering on fence. 674 F.2d 209,
`
`212).
`
`37.
`
`However, one month before the Fourth Circuit's decision, CPC/Webner filed 3 claims to
`
`the TIAB, alleging i) actual confusion, ii) two oppositions to Petitioner's SKIPPY service marks, and iii) a
`
`petition to cancel Petitioner's Reg. 1, 129,551. Exhibit AlS. Five days after the Fourth Circuit's decision,
`
`CPC withdrew its petition without prejudice before Petitioner could answer. Petitioner's counsel was
`
`upset (Exhibit A16) and notified the Clerk but was told that, since the decision was about to issue, the
`
`court would not consider the matter. Because of this turnabout, even after the appeals court held that
`
`the Rosefield §15 affidavit was false, in 1986 the district court found inevitable confusion by Skippy, Inc.
`
`12
`
`

`

`and Tibbetts. The Board also ruled inevitable confusion was caused by Petitioner's service marks, 3
`
`USPQ2D 1456 (1987).
`
`38.
`
`For example, the Board cited the 1987 Skippy decision in another Opposition, No.
`
`91115343 (2004) at 9. "We recognize that in CPC International, Inc. v. Skippy, Inc. the Board found that
`
`contemporaneous use of the mark SKIPPY for peanut butter and promoting the goods and services of
`
`others was likely to cause confusion. However, there were two factors present in that case .... The fame
`
`of the opposer's SKIPPY mark was a significant likelihood of confusion factor in that case and there was
`
`evidence that the opposer had licensed use of the SKIPPY mark for use on various products." This is an
`
`example of reverse confusion that CPC intended to create, where the much larger junior user
`
`overwhelms the smaller senior user and misleads the public and courts to believe the junior user's mark
`
`is famous and the senior user is the interloper.
`
`39.
`
`The American Steel Foundries v. Robertson decision, 269 U.S. 372, that was cited by the
`
`Examiner for Skippy, Inc. (conceded by CPC as appellee in 1981) specifically prevented such conduct,
`
`holding that "the natural and necessary consequence of the wrongful appropriation of a corporate
`
`name, is to injure the business and rights of the corporation by destroying or confusing its identity." Id.
`
`at 380.
`
`40.
`
`A major omission from the 1980 Skippy V court was the Delaware corporate charter of
`
`Petitioner (Exhibit Al) and Petitioner's distinctive corporate logo that Percy Crosby designed in 1932,
`
`(Exhibit Al6). Thus, the court did not know that the 1934 Skippy decision was based on the statutory
`
`"Name Clause," §S(b) of the 1905 Act, and not on trademark infringement involving likelihood of
`
`confusion between the SKIPPY® comic and peanut butter. Proof of how the trial court was misled is
`
`seen in pages 231-231 of the trial transcript, when LDL's Herbert Brownell was cross-examined as
`
`defendant CPC's witness (no conflict of interest was raised Exhibit 3).
`
`13
`
`

`

`Q. Mr. Brownell, you testified you participated ... in the incorporation of Skippy, Inc ...
`. is that correct, in 1932?
`
`A. Yes.
`
`Q. Do you recall ... any assignment or license agreement with Mr. Crosby to the
`corporation?
`
`A.
`
`. ... I think that ... was the purpose of the incorporation.
`
`THE COURT: What is the purpose of it? What do the details of the incorporation have
`to do with this case? ... [T]he incorporation ... has nothing to do with this case."
`
`41.
`
`Not only did Plaintiffs counsel {Trattner) remain silent, as did Brownell, but the court
`
`was 1) not told that the PTO file was destroyed in 1965-66, nor 2) shown the 1954 Wenderoth report,
`
`as PX 703 would have answered the court's questions about corporate articles.
`
`II. ARGUMENT
`
`Respondent is not entitled to summary judgment on the basis of the preclusive doctrines it cites,
`
`which both the facts and the law demonstrate are inapplicable here.
`
`A.
`
`Standard For Summary Judgment
`
`Summary judgment is proper "if the movant shows that there is no genuine dispute as to any
`
`material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56{a). The
`
`purpose of summary judgment is to dispose of unsupported claims or defenses which, as a matter of
`
`law, do not raise issues of material fact suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317
`
`{1986). When confronted with a motion for summary judgment, a court should not "[w]eigh the
`
`evidence and determine the truth of the matter," but the Court should "[d]etermine whether there is a
`
`genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 {1986).
`
`If the moving party meets its heavy burden of demonstrating that there is no genuine issue of
`
`material fact that should be decided at trial, the burden shifts to the non-moving party to "come
`
`forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v.
`
`14
`
`

`

`Zenith Radio Corp., 475 U.S. 574, 584 (1986). A court must view the evidence and any inferences from
`
`the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. The
`
`question then becomes "[w]hether the evidence presents sufficient disagreement to require submission
`
`to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson at 252.
`
`"[T]he substantive law will identify which facts are material. Only disputes over facts which
`
`might affect the outcome of the suit under the governing law will properly preclude the entry of
`
`summary judgment." Anderson at 248. Therefore, summary judgment is appropriate only where no
`
`material facts are genuinely disputed and the evidence as a whole could not lead a rational fact finder to
`
`rule for the nonmoving party. Matsushita, 475 U.S. at 587.
`
`Here, each of Respondent's arguments to dispose of the Petition fails as a matter of law on the
`
`record facts, which show that Petitioner is not precluded from seeking to cancel the mark. Indeed,
`
`Petitioner never has enjoyed a full and fair opportunity to assert her current Petition despite the Fourth
`
`Circuit's 1982 decision specifically stating that Petitioner is entitled to do so. While the argument below
`
`is repetitive of what Petitioner already has demonstrated, it warrants renewed emphasis.
`
`B.
`
`The Compulsory Counte

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