Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA946499
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`Filing date:
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`01/09/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`92061629
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`Party
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`Correspondence
`Address
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`Defendant
`Matey Michael Ghomeshi
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`MATEY MICHAEL GHOMESHI
`MOBILE BLACK BOX
`P O BOX 95
`ONTARIO, CA 91762-8095
`UNITED STATES
`mg@mobileblackbox.com
`909-215-8869
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Request for Reconsideration of Final Board Decision
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`Matey Michael Ghomeshi
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`mg@mobileblackbox.com
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`/Matey Michael Ghomeshi/
`
`01/09/2019
`
`Respondents Brief In support of Request For Reconsideration of Final De-
`cision.pdf(1015140 bytes )
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`____________________________________
`STRONGVOLT, INC.,
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`Petitioner,
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`v.
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`MATEY MICHAEL GHOMESHI,
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`Respondent.
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`____________________________________)
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`Cancellation No. 92061629
`Registration No. 3,798,681
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`January 09, 2019
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES……………………………………………...……........................iv
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`RESPONDENT’S REQUEST FOR RECONSIDERATION OF FINAL DECISION…...…1
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`ARGUMENT………………………………………………………………………..…...….…....1
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`A. The Board overlooked and/or never referenced Respondent’s Exhibit J and
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`other evidence; which provides that the Petitioner intentionally submitted
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`fraudulent and/or misleading evidence and/or intentionally misrepresented
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`evidence on the record ……………………………………………………………………....…….1
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`B. The Board misread and/or misinterpreted public records from WHOIS;
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`the internet domain name registry records within Respondent Exhibit E………………….………9
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`C. The Board erred by never taking into consideration; Respondent’s
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`ii
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`previous amend motion which was consented to by all parties……………………...…….…..…11
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`D. The Board misinterpreted or took out of context; certain CAD illustration(s)
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` relating to the Respondent’s computer audio speaker product……………………...……….…..11
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`E. The Board erred by concluding that Respondent’s computer audio
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`speaker headphone product was not a computer audio speaker………………………….…….....12
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`F. The Board erred by unilaterally striking Respondent’s affirmative defenses
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`and later unilaterally asserting an affirmative defense on behalf of the Petitioner…………...…..12
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`G. The Board erroneously disregarded Respondent’s bonafide product photo
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` specimens and invoice evidence within Respondent’s Exhibit F……………………………...…13
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`H. The Board erroneously disregarded Respondent’s bonafide product sales invoices
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`which are regulable by Congress under the Commerce Clause, therefore
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`constitutes “use in commerce” under the Lanham Act……………………………………..…….16
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`I. The Board erred by regarding Respondent witness Debra Means as a ‘surprise witness’;
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`but freely allowed testimony from Petitioner surprise witness Charles Reidelbach…………..….17
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`J. The Board erred when it concluded that evidence from internet archive website
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`WayBackMachine.com was ‘unreliable’………………………………………………….…..….18
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`K. Respondent Exhibit G – Industry article defining Bluetooth speakers
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`provides that the Petitioner has no standing…………………………………………………...…20
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`L. The Board erred by taking Respondent interrogatory response(s) out of context………….….…20
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`CONCLUSION……………………………………………………………………………..…..22
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`iii
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`CASES:
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`TABLE OF AUTHORIITIES
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`Hazel-Atlas Co. v. Hartford-Empire Co.
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`322 U.S. 238 [1944]………………………………………………………………….…....5,6,7,8,9
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`Universal Oil Products Co. v. Root Refining Co.
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`328 U.S. 575, 580-81 (1946)……………………………………………………………….….5,7,9
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`Greater Boston Television Corp. v. FCC
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`463 F.2d 268, 278 (C.A.D.C. 1971)…………………………………………………………......…5
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`Chambers v. NASCO, Inc.
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`501 U.S. 32, 44 (1991)……………………………………………………………….………....….5
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`Kenner v. Comm. of Internal Revenue Service
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`387 F.2d 689, 691 (7th Cir. 1968)……………………………………………………..…….…….5
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`Appling v. State Farm Mut. Auto. Ins. Co.
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`340 F.3d 769, 780 (9th Cir. 2003)…………………………………………………….………..….6
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`Pumphrey v. K.W. Thompson Tool Co.
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`62 F.3d 1128, 1131 (9th Cir. 1995)……………………………………………………….……….6
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` Abatti v. Commissioner
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`859 F.2d 115, 118 (9th Cir. 1988)…………………………………………………...….....………..6
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`Intermagnetics America, Inc.
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`926 F.2d 912, 916 (9th Cir. 1991)……………………………………………………….….……..6
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`Alexander v. Robertson
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`882 F.2d 421, 424 (9th Cir. 1989)………………………………………………………..…….…6,7
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`iv
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`Virgin Islands Housing Authority v. David,
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`823 F.2d 764, 766 (3rd Cir. 1987)………………………………………………………….…..….6
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`Kupferman v. Consolidated Research & Mfg. Corp.
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`459 F.2d 1072, 1074 n. 1 (2d Cir. 1972)…………………………………………..…….…….…6,7
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`Root Ref. Co. v. Universal Oil Prods. Co.,
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`335 U.S. 912, 169 F.2d 514, 522, 69 S.Ct. 481, 93 L. Ed. 444 (3d Cir. 1948)…………...……......6
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`Lockwood v. Bowles
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`46 F.R.D. 625, 632 (D.C. 1969)……………………………………………………..………..……7
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`Sutter v. Easterly
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`354 Mo. 282, 189 S.W.2d 284 (1945)………………………..…………………………….….…..7
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`Standard Oil Co. v. United States
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`429 U.S. 17 (1976)…………………………………………………..…………………………......7
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`H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co.
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`536 F.2d 1115, 1119 (6th Cir. 1976)……………………………………..…………….......…..….7
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`Demjanjuk v. Petrovsky
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`10 F.3d 338 (6th Cir. 1993)………………………………………………..…………………..…..7
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`Geders v. United States
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`425 U.S. 80, 93 (1976)……………………………………………………………..………………7
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`Martina Theatre Corp. v. Schine Chain Theatres, Inc.
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`278 F.2d 798 (2nd Cir. 1960)……………………………………………………..…………….….9
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`Root Ref. Co. v. Universal Oil Prods. Co.
`169 F.2d 514, 521-22 (3rd Cir. 1948………………………………………………..……………..9
`States v. Lopez
`514 U.S. 549, 558 (1995)………………………………………………..……..…………….…...15
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`v
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`Christian Faith Fellowship Church v. Adidas AG
`841 F.3d 986, 120 USPQ2d 1640, 1642 (Fed. Cir. 2016.……….…………………………..…....15
`Wet Seal Inc. v. FD Mgmt. Inc.
`SPQ2d 1629 (TTAB 2007)...…..……………………..………………………………….....…….16
`United States v. Gasperini,
`No. 17-2479 (2d Cir. 2018)……………………………………………………………..……..….18
`USA v. Bansal
`No. 06-1370 (3d Cir. 2011)………………………………………………………………...…..…18
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`Statutes:
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`Lanham Act - 15 U.S. Code § 1051…………………………………………………...............….15
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`Federal Rule:
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`FRCP 60(B)…………………………………………………………………………….....…...6, 20
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`
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`Publications:
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`J. Moore & J. Lucas, Moore’s Federal Practice
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`§ 60.33, at 515 (2d ed. 1978))……………………………………………………...…...…6
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`Moore’s Federal Practice and Procedure
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`page 60.33…………………………………………………………………………..……..7
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`vi
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`RESPONDENT’S REQUEST FOR RECONSIDERATION OF FINAL
`DECISION
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`Pursuant to TBMP 543 and 37 CFR § 2.129(C),the Respondent Matey Michael Ghomeshi
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`(“Respondent”) respectfully submits its Brief before the Trademark Trial and Appeal Board (“Board”) in
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`support of Request For Reconsideration of Final Decision (“Request For Reconsideration”). Within this
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`Brief, the Respondent provides oversights and errors within Board’s Final Decision. Based on the
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`evidence of record and prevailing authorities, the Respondent believes the Board erred in reaching its
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`Final Decision.
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`ARGUMENT
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`A. The Board overlooked and/or never referenced Respondent’s Exhibit J and
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`other evidence; which provides that the Petitioner intentionally submitted fraudulent
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`and/or misleading evidence and/or intentionally misrepresented evidence on the record
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`Within Respondent’s Exhibit J (32 TTABVUE p.138-151), the Respondent provided exculpatory
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`evidence that was overlooked by the Board and/or was never referenced in the Board’s Final Decision.
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`Within Respondent’s Exhibit J and within Respondent’s Trial Brief (44 TTABVUE, p.15), the
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`Respondent asserted that the Petitioner had provided a falsified Lexis-Nexis report (“report”) prepared by
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`the Petitioner’s attorney Charles Reidelbach as indicated on the ‘report’ and submitted as Petitioner’s
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`Notice of Reliance Exhibit K (31 TTABVUE, p.659-669). The Petitioner submitted what was purported
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`to be a ‘genuine’ Lexis Nexis report (“report”) for a Respondent invoiced customer named Bill Means
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`whose legal name was Wilton Champ Means, (“Wilton Champ Means”) (32 TTABVUE, p.110) (31
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`TTABVUE, p.642). Within their submitted report, the Petitioner attempted to present, on the record, a
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`false date of birth of 5/1957, a false date of death as 8/21/1997, a false social security number of 549-
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`25-**** and various other false information for Wilton Champ Means.
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`1
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`Additionally, the Petitioner further provided testimony via declaration from Strongvolt’s CEO Ian
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`Sells, see Petitioner’s Notice of Reliance Exhibit K (31 TTABVUE, p. 670), which attempted portray the
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`Respondent’s “Bill Means” (a.k.a Wilton Champ Means) invoice as illegitimate based on the false date of
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`death presented on the Petitioner’s falsified Lexis Nexis report.
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`The Respondent provided the official death certificate for Wilton Champ Means and a declaration
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`from Wilton Champ Means’ daughter Debra Means that provided conclusive evidence that the
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`Petitioner’s assertion was not only false but maliciously fabricated to curtail the Respondent’s defense,
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`see Respondent’s Exhibit C (32 TTABVUE p.18-23). The Respondent’s Exhibit C (32 TTABVUE p.19)
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`includes a photocopy of Wilton Champ Means’ official death certificate which provides his correct date
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`of birth as 5/25/1928, his correct date of death as 12/07/2006 and his correct social security number
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`as 570-30-****.
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`Upon further review of the Petitioner’s submitted Lexis Nexis report; inconsistencies are apparent
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`throughout the report that provides that the report was purposely falsified and/or willfully misrepresented
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`by the Petitioner. It is evident, that the Petitioner’s purported Lexis Nexis report was clearly fabricated
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`with information from various individuals which includes;
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`
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`
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`the incorrect and correct name(s) for Wilton Champ Means
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`the incorrect and correct date(s) of birth for Wilton Champ Means
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` The incorrect and correct date(s) of death for Wilton Champ Means
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` The incorrect and correct social security number(s) for Wilton Champ Means
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` The false criminal record filings for Wilton Champ Means. According to the testimony of
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`Debra Means and the Death Certificate for Wilton Champ Means, Wilton Champ Means
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`was a decorated veteran and a honorably retired law enforcement official and no such
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`criminal filing ever existed on his record, see Respondent’s Exhibit C (32 TTABVUE
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`p.18-23).
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`2
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`When further examining of the Petitioner’s submitted Exhibit K ‘report’ in detail, inconsistencies
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`are further evident as to the intentional falsification of the report; such as;
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`
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`Incorrect date of birth ‘5/1957’ and the incorrect date of death ‘8/21/1997’, for Wilton
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`Champ Means (31 TTABVUE p.673)
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`
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`Incorrect social security number ‘549-25-****’, for Wilton Champ Means (31
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`TTABVUE p.673)
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`
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`Incorrect social security number ‘549-25-****’, at the top of page, for Wilton Champ
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`Means (31 TTABVUE p.677)
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` Correct social security number ‘570-30-****’, at the bottom of page, for Wilton Champ
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`Means (31 TTABVUE p.677)
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` Correct date of birth ‘5/1928’, at the top of page, for Wilton Champ Means (31
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`TTABVUE p.678)
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`
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`Incorrect name ‘Wilton Craig Means’, incorrect social security number ‘549-25-
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`****’, incorrect date of birth ‘5/1957’ for Wilton Champ Means (31 TTABVUE p.681)
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` False criminal record filings for Wilton Champ Means (31 TTABVUE p.681)
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`The Petitioner’s submitted ‘report’ has various dates of birth, dates of death, social security numbers and
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`other vital information for Wilton Champ Means which would not be consistent with such a Lexis Nexis
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`report.
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`Therefore, one can only conclude, that the Petitioner had in its possession the correct information
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`for Wilton Champ Means; but intentionally chose to mislead and/or willfully chose to misrepresent the
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`report they submitted as evidence to the Board. Furthermore, the Petitioner provided false and misleading
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`testimony from Petitioner Strongvolt CEO Ian Sells in a further effort to curtail the Respondent’s defense.
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`3
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`Federal Rule of Civil Procedure 60(b) states that:
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`On motion and just terms, the court may relieve a party or its legal representative from a final judgment,
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`order, or proceeding for the following reasons:
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`(1) mistake, inadvertence, surprise, or excusable neglect;
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`(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in
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`time to move for a new trial under Rule 59(b);
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`(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct
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`by an opposing party;
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`(4) the judgment is void;
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`(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that
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`has been reversed or vacated; or applying it prospectively is no longer equitable; or
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`(6) any other reason that justifies relief.
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`In summary, the evidence of record provides various instances that the Petitioner knowingly;
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`submitted falsified and/or misleading information and/or misrepresented evidence within the above
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`captioned proceeding; in particular;
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`a) Petitioner submitted falsified Certificate of Service attached to Petition For Cancellation
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`filing, see Respondent’s Motion to Dismiss (20 TTABVUE).
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`b) Petitioner knowingly misrepresented and/or falsified and/or submitted a misleading Lexis
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`Nexis report as ‘evidence’ within Petitioner Exhibit K (31 TTABVUE, p.659), also see
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`Respondent’s Exhibit J (32 TTABVUE, p.138-151).
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`c) Petitioner witness, Strongvolt’s Ian Sells, willfully provided false testimony in an attempt to
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`legitimize the falsified Lexis Nexis report submitted as evidence within Petitioner’s Exhibit
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`K (31 TTABVUE, p. 670).
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`4
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`d) Petitioner’s submitted a purported ‘audio CD’ as Petitioner’s Rebuttal Exhibit B; (36
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`TTABVUE) (“CD”). The Petitioner made false claims that the audio CD contained a voice
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`mail from Respondent witness Debra Means. The Respondent objected to the Petitioner’s
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`Rebuttal Exhibit B at trial; the Respondent contended that the CD contained no files and no
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`audio recordings. The Petitioner filed a copy of the purported CD on file with the Board as
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`indicated within the proceeding filings (36 TTABVUE). The Board erred by not verifying
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`nor validating the CD’s contents on the record. The Board erred by allowing the CD’s ‘non-
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`existent’ contents at trial based solely on Petitioner’s hearsay statement and to the determent
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`of the pro se Respondent’s defense.
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`The Board and courts are vested with inherent power to vacate judgments and orders obtained by
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`fraud. “The inherent power of a federal court to investigate whether a judgment was obtained by fraud, is
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`beyond question. Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238 [1944]. The power to unearth
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`such a fraud is the power to unearth it effectively. Accordingly, a federal court may bring before it by
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`appropriate means all those who may be affected by the outcome of its investigation.” Universal Oil
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`Products Co. v. Root Refining Co., 328 U.S. 575, 580-81 (1946). “The spirit of the ‘fraud on the court’
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`rule is applicable whenever the integrity of the judicial process or function has been undercut — certainly
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`in any instance, of misconduct of a party.” Greater Boston Television Corp. v. FCC, 463 F.2d 268, 278
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`(C.A.D.C. 1971). “Of particular relevance here, the inherent power also allows a federal court to vacate
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`its own judgment upon proof that a fraud has been perpetrated upon the court.” Chambers v. NASCO,
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`Inc., 501 U.S. 32, 44 (1991). This inherent power is recognized despite the strong judicial policy favoring
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`the finality of judgments, and based on the equally important judicial principle that “a decision produced
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`by fraud on the court is not in essence a decision at all and never becomes final.”Kenner v. Comm. of
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`Internal Revenue Service, 387 F.2d 689, 691 (7th Cir. 1968). Trial courts are empowered to vacate a
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`judgment or order when a litigant shows that the procedure used to obtain it was so tainted by fraud as to
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`effect the integrity of the judicial process itself. According to the Ninth Circuit, “fraud on the court
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`5
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`requires a grave miscarriage of justice and a fraud that is aimed at the court.” Appling v. State Farm Mut.
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`Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003), italics added. To obtain relief, the litigant must show
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`that the fraud involved an “unconscionable plan or scheme designed to improperly influence the court in
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`its decision.” Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995); Abatti v.
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`Commissioner, 859 F.2d 115, 118 (9th Cir. 1988).
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`The Ninth Circuit has approved the definition by Professor Moore:
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`“Fraud on the court” should, we believe, embrace only that
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`species of fraud which does or attempts to, defile the court itself,
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`or is a fraud perpetrated by officers of the court so that the
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`judicial machinery can not perform in the usual manner in its
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`impartial task of adjudging cases that are presented for
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`adjudication.
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`In re Intermagnetics America, Inc., 926 F.2d 912, 916 (9th Cir. 1991); see also, Alexander v. Robertson,
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`882 F.2d 421, 424 (9th Cir. 1989) (quoting 7 J. Moore & J. Lucas, Moore’s Federal Practice § 60.33, at
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`515 (2d ed. 1978)). In Virgin Islands Housing Authority v. David, 823 F.2d 764, 766 (3rd Cir. 1987), the
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`Third Circuit found that plaintiff’s counsel’s misrepresentations were fraud on the court: Under Rule 60,
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`an explicit saving clause empowers each federal court “to set aside a judgment for fraud upon the court.”
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`[Citations] Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1074 n. 1 (2d Cir. 1972)
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`(“a finding of fraud on the court empowers the district court to set aside the judgment sua sponte”); Root
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`Ref. Co. v. Universal Oil Prods. Co., 335 U.S. 912, 169 F.2d 514, 522, 69 S.Ct. 481, 93 L. Ed. 444 (3d
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`Cir. 1948) (“the power inheres in the appellate as well as in the trial court”), cert. denied sub nom.
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`[Citations.] This provision codifies “the historic power of equity to set aside fraudulently begotten
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`judgments.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 88 L.Ed. 1250, 64 S.Ct.
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`997 (1944). Leading commentators have suggested that the concept of fraud upon the court “should ...
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`embrace only that species of fraud [that] does[,] or attempts to, subvert the integrity of the court itself, or
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`6
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`

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`is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual
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`manner its impartial task of adjudging cases.” [Citations.]
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`A key consideration is whether an officer of the court, such as an attorney or court appointed guardian ad
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`litem, perpetrates the fraud. See, Lockwood v. Bowles, 46 F.R.D. 625, 632 (D.C. 1969) (“the involvement
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`of an attorney (an officer of the court) in the perpetration of the fraud”), citing Sutter v. Easterly, 354 Mo.
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`282, 189 S.W.2d 284 (1945), where the court relied on Hazel-Atlas Glass Co. v. Hartford Empire
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`Company, supra, 322 U.S. 238 (Hazel-Atlas), overruled on other grounds in Standard Oil Co. v. United
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`States, 429 U.S. 17 (1976), and holding that fraud on the court was shown where an attorney conspired to
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`produce fabricated evidence; see also, H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d
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`1115, 1119 (6th Cir. 1976) (“Since attorneys are officers of the court, their conduct, if dishonest, would
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`constitute fraud on the court.”).
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`The Court in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993), vacated a district court judgment that
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`was “procured as a result of prosecutorial misconduct that constituted fraud on the court.” Id., at 356. The
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`court noted that “[c]ases dealing with fraud on the court often turn on whether the improper actions are
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`those of parties alone, or if the attorneys in the case are involved.” Ibid. The court also quoted
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`approvingly from a leading treatise: “[W]hen [an attorney] departs from that standard [integrity and
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`honest dealing with the court] in the conduct of a case he perpetrates fraud upon a court.” Ibid., citing 7
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`Moore’s Federal Practice and Procedure, page 60.33.
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`Fraud threatening the integrity of the judiciary is so serious that Congress has set no time limit for
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`motions for relief. In Universal Oil Products Co. v. Root Refining Co., supra, the motion was presented
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`fifteen years after judgment and in Demjanjuk eight years later. An attorney commits fraud upon the court
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`by instituting an action “to which he knew there was a complete defense.” Kupferman v. Consol.
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`Research & Mfg. Corp., supra, 459 F.2d at 1079; see also, Alexander v. Robertson, 882 F.2d at 425. “If
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`our adversary system is to function according to design, we must assume that an attorney will observe his
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`[or her] responsibilities to the legal system, as well as to [the] client.” Geders v. United States, 425 U.S.
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`80, 93 (1976).
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`7
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`

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`In Hazel-Atlas, a patent infringement case, an attorney for defendant Hartford wrote an article extolling
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`the patent and arranged to have it printed in a trade journal under the name of an ostensibly disinterested
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`expert. Both the Patent Office when granting the patent and the Third Circuit when upholding its validity
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`relied on the misleading article. The Supreme Court reviewed the matter and held that the judgment must
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`be vacated due to the attorney’s fraud: Every element of the fraud here disclosed demands the exercise of
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`the historic power of equity to set aside fraudulently begotten judgments. This is not simply a case of a
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`judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed
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`possibly to have been guilty of perjury.
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`Here, even if we consider nothing but Hartford’s sworn admissions, we find a deliberately planned and
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`carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.
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`Furthermore, tampering with the administration of justice in the manner indisputably shown here
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`involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect
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`and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with
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`the good order of society. Id., at 246, italics added.
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`The Court also held that it was not required to determine the extent to which the article had in fact
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`effected the judges who had voted to uphold the patent nor was it relevant whether the statements in the
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`article were true. The key factor of importance for the Court was that because Hartford through its
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`attorney had deliberately arranged its publication under a false name, Hartford was estopped thereafter
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`from disputing its effectiveness in the litigation. Id., at 246-47. To remedy Hartford’s fraud, the Supreme
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`Court directed the Third Circuit to vacate the judgment and instruct the district court to deny all relief to
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`Hartford. Id., at 250-51. Notably, the Supreme Court also opined that had the District Court or the Circuit
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`Court learned of the corruption and fraud when it was occurring, Hartford’s cause of action would have
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`been dismissed. Id., at 250. “The total effect of all this fraud, practiced both on the Patent Office and the
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`courts, calls for nothing less than a complete denial of relief to Hartford for the claimed infringement of
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`the patent thereby procured and enforced.” Ibid.
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`The recognized judicial principles governing a litigant’s claim that another litigant or his/her attorney has
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`defrauded the court derive from Hazel-Atlas. So important are these principles that a court may sua
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`sponte address the matter and impose a sanction if fraud is found. Universal Oil Products Co., 328 U.S.
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`575; Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798 (2nd Cir. 1960).
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`Even if there are no adverse parties to the fraud on the court, the court still has jurisdiction to address and
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`fashion a remedy, since it retains ancillary jurisdiction to determine whether it has been the victim. Root
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`Ref. Co. v. Universal Oil Prods. Co., 169 F.2d 514, 521-22 (3rd Cir. 1948).
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`If it is shown that the court was defrauded, the judgment or order must be vacated and the party
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`responsible denied all relief. Hazel-Atlas, 32 U.S. at 250-51; Root Ref., 169 F.2d at 534-35.
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`Based on the various instances of the Petitioner intentionally submitting on the record; (a) false
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`information and/or (b) misrepresenting evidence and/or (c) misleading evidence and/or (d) fraudulent
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`evidence, the Board is mandated by Federal statute, FRCP 60(B) to relieve Respondent from a final
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`judgment.
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`B. The Board misread and/or misinterpreted public records from WHOIS; the internet
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`domain name registry records within Respondent Exhibit E
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`Within Respondent’s Exhibit E (32 TTABVUE, p.29-83), the Respondent provided the Board with a
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`list of 32 internet domain names he’s registered and renewed annually within the 15 year duration of
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`using his trademark in commerce. The Respondent’s Exhibit E provided; testimony via declaration from
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`Respondent Matey Michael Ghomeshi as to being the registrant owner of the 32 provided internet domain
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`names since the original date of registration and up to the present date. Respondent’s Exhibit E further
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`provided public record printout(s) for each domain name providing all pertinent information regarding
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`each domain name such as; original registration date, registrant name and expiration date. The
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`Respondent contends that the domain names not only provide an aspect of Respondent’s use of his
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`trademark within commerce but the promotion of the product categories encompassed by his trademark.
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`The Respondent’s initial registration and annual renewal, beginning in 2003, of specific ‘keyword’
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`domain names relating to his MOBILEBLACKBOX trademark, analog/digital audio transmitters and
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`computer audio speakers further provides that the Respondent never abandoned nor intends to abandon
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`his trademark.
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`The Board erroneously concluded that ‘all but one of Respondent’s domain names within Exhibit E
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`had expired’, this is an incorrect conclusion. The Respondent’s Exhibit E printout of the domain names
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`at the time of the submission of Respondent’s Trial Brief indicated that all domains names were valid and
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`currently registered to the Respondent. Furthermore, the Respondent reiterates that all of the domain
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`names within Respondent’s Exhibit E have been continuously; registered, renewed annually and have
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`never expired. All domain names are currently registered to the Respondent and resolve back to
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`Respondent’s MobileBlackBox.com website. The current registration status of each domain name can be
`verified using the WHOIS registry search http://www.godaddy.com/whois .
`The Board should not differentiate between a full page magazine advertisement and an internet web
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`sales page and its relation to trademark promotion and the sale of products within commerce.
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`Respondent’s domain name portfolio provides that the Respondent was actively promoting his trademark
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`within the publically accessible internet domain. The Respondent’s domain name portfolio further
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`provides that the Respondent continuously associated and promoted key wording related to digital audio
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`transmitters, analog audio transmitters and computer audio speaker products in commerce and associated
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`them to his trademark and MobileBlackBox.com website.
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`The Petitioner’s own attorney-witness testimony of Michael Hoisington (31 TTABVUE, p.369)
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`provides that the Petitioner was able to easily find and had full knowledge of Respondent’s products and
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`MobileBlackBox.com website several months prior to having filed Petition For Cancellation. This further
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`provides the effectiveness of Respondent’s active promotion of his trademark and associated domain
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`names within the publically accessible internet. Therefore, the Board unjustly erred in concluding that the
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`Respondent has ever ‘abandoned’ his trademark.
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`C. The Board erred by never taking into consideration; Respondent’s previous amend
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`motions which was consented to by all parties
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`The Board, in its Final Decision, never gave any consideration to the fact that the Petitioner had
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`already consented to Respondent’s current amended registration which the Board also approved (24
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`TTABVUE).
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`The Respondent contends that the Petitioner has already consented to Respondent’s current amended
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`registration which the Board already approved. The Petitioner stated within their consent filing that,
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`“StrongVolt agrees that the description of the goods listed in the‘681 Registration will now include only
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`“audio speakers for computers, analog and digital audio signal transmitters.”” (19 TTABVUE). The
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`Board erred when, in essence, allowed the Petitioner to; ‘consent’, ‘non-consent’ and/or ‘reserve the
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`future right to withdraw its consent’ all at once. The Board, had previously, approved Respondent’s
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`Motion To Amend registration and at that time only accepted Petitioner’s statement of consent to
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`Respondent’s final amended registration.
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`
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`D. The Board misinterpreted or took out of context; certain CAD illustration(s)
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`relating to the Respondent’s computer audio speaker product
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` The Board misinterpreted or took out of context; certain CAD illustration(s) relating to the
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`Respondent’s computer speaker products. The Board erred by concluding that the CAD illustrations
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`depicting Respondent’s computer speaker product didn’t properly display the Respondent’s trademark.
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`The Respondent contends that these illustrations are merely depicting the technical evolution of his
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`computer speaker product. The Board focused on one CAD illustration which included the text “Mobile
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`Black Box” typed on the side of the computer headphone speaker product. The Respondent contends that
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`these illustrations depict various stages of the development of his computer audio speaker product. The
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`“Mobile Black Box” text was essentially a watermark added by the CAD engineer and was not presented
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`by the Respondent to be his actual MOBILEBLACKBOX trademark nor the actual location of the
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`trademark on the product. The Respondent’s contends that his trademark was too wide and thus not
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`practical for it to be placed on the outside of the product; the trademark was actually placed on the inner
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`part of the product which faces the user’s head when the product is in use.
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`E. The Board erred by concluding that Respondent’s computer audio speaker
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`headphone product was not a computer audio speaker
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`The Board erred by concluding that Respondent’s computer headphone speaker product was not a
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`computer audio speaker. The Respondent contends that computer headphone speaker product he sold
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`contained 6-speakers and interfaced with a computer; therefore it is a computer audio speaker product.
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`Furthermore, 4 out of the 6 speakers in the speaker product do not rest against the user’s head or ears
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`when in use. The Respondent’s 3DVOX product is essentially a miniaturized computer 6-speaker
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`surround sound audio speaker system. The Respondent has since been selling various other speaker
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`products with the MOBILEBLACKBOX trademark which can be also be interfaced with a computer, see
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`Respondent’s Exhibit F (41 TTABVUE, p.30-42). In fact, all of Respondent’s product can be interfaced
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`with a computer for audio output purposes.
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`F. The Board erred by unilaterally striking Respondent’s affirmative defenses and
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`later unilaterally asserting an affirmative defense on behalf of the Petitioner
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`The Respondent had filed a Motion To Amend Answer in the discovery phase of this proceeding
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`(16 TTABVUE). The Board in an unprecedented decision not only denied Respondent’s Motion To
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`Amend Answer but unilaterally struck all of Respondent’s affirmative defenses. The Board now with
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`their Final Decision unilaterally asserted the Estoppel affirmative defense on behalf of the Petitioner
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`and to the detriment of the pro se Respondent. Furthermore, the Board, by first acknowledging that
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`the Petitioner never used the wording of ‘abandonment’ in their original pleading, yet erred by still
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`allowing the Petitioner to change their pleading at trial and by inserting the wording of
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`‘abandonment