Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA691411
`ESTTA Tracking number:
`08/24/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`Petition for Cancellation
`
`Notice is hereby given that the following party requests to cancel indicated registration.
`Petitioner Information
`
`Name
`Entity
`Address
`
`MedStar Health, Inc.
`Corporation
`5565 Sterrett Place 5th Floor
`Columbia, MD 21044
`UNITED STATES
`
`Citizenship
`
`Maryland
`
`Attorney informa-
`tion
`
`CORY M. AMRON
`VORYS, SATER, SEYMOUR AND PEASE LLP
`IPLAW@VORYS - PO BOX 2255
`COLUMBUS, OH 43216
`UNITED STATES
`iplaw@vorys.com, tmcurcio@vorys.com, cmamron@vorys.com, whol-
`dach@vorys.com Phone:202-467-8800
`Registration Subject to Cancellation
`
`Registration No
`Registrant
`
`3838606
`Fearsome Fivesome, LC
`13812 Flat Top Ranch Road
`Austin, TX 78732
`UNITED STATES
`Goods/Services Subject to Cancellation
`
`Registration date
`
`08/24/2010
`
`Class 036. First Use: 2010/02/01 First Use In Commerce: 2010/02/01
`All goods and services in the class are cancelled, namely: Medical accounts receivable financing,
`namely, the purchase of receivables secured by assignment from medical providersand subsequent
`resale of the receivables to third parties
`
`Grounds for Cancellation
`
`The registration is being used by, or with the per-
`mission of, the registrant so as to misrepresent
`the source of the goods or services on or in con-
`nection with which the mark is used.
`Priority and likelihood of confusion
`Dilution
`
`Trademark Act section 14
`
`Trademark Act section 2(d)
`Trademark Act section 43(c)
`
`Marks Cited by Petitioner as Basis for Cancellation
`
`U.S. Registration
`No.
`Registration Date
`
`1327545
`
`03/26/1985
`
`Application Date
`
`03/16/1984
`
`Foreign Priority
`
`NONE
`
`

`
`Word Mark
`Design Mark
`
`MEDSTAR
`
`Date
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 042. First use: First Use: 1979/06/00 First Use In Commerce: 1979/06/00
`Providing an Emergency Care Facility for Critically Ill and Injured Persons
`
`1498006
`
`07/26/1988
`
`MEDSTAR
`
`NONE
`
`Application Date
`
`04/28/1986
`
`Foreign Priority
`Date
`
`NONE
`
`Class 036. First use: First Use: 1985/07/10 First Use In Commerce: 1985/07/10
`INSURANCE BROKERAGE AND INSURANCE ADMINISTRATION SERVICES
`
`U.S. Registration
`No.
`Registration Date
`
`3009989
`
`11/01/2005
`
`Application Date
`
`08/15/2003
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`
`MEDSTAR SPORTSHEALTH
`
`Description of
`Mark
`Goods/Services
`
`U.S. Registration
`No.
`Registration Date
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 044. First use: First Use: 2003/06/00 First Use In Commerce: 2003/06/00
`Medical and healthcare services offeredto active individuals, athletes and athlet-
`ic teams
`
`2828750
`
`04/06/2004
`
`MEDSTAR
`
`NONE
`
`Application Date
`
`12/21/1998
`
`Foreign Priority
`Date
`
`NONE
`
`Class 042. First use: First Use: 1979/06/00 First Use In Commerce: 1979/06/00
`medical and hospital services
`
`U.S. Application/ Registra-
`tion No.
`
`NONE
`
`Application Date
`
`NONE
`
`

`
`Registration Date
`Word Mark
`Goods/Services
`
`Attachments
`
`NONE
`MEDSTAR
`medical and hospital services
`
`73470690#TMSN.png( bytes )
`76538519#TMSN.png( bytes )
`Petition to Cancel MEDSTAR FUNDING (3838606).pdf(113622 bytes )
`Ex. A- MEDSTAR FUNDING.pdf(787407 bytes )
`Ex. B- MEDSTAR FUNDING.pdf(467707 bytes )
`Ex. C- MEDSTAR FUNDING.pdf(381506 bytes )
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`
`Signature
`Name
`Date
`
`/tmc/
`Tanya Marie Curcio
`08/24/2015
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. ____________
`
`In the matter of Trademark Registration No. 3,838,606
`Mark: MEDSTAR FUNDING
`Registration Date: August 24, 2010
`
`
`
`
`
`
`
`MEDSTAR HEALTH, INC.,
`
`
`Petitioner,
`
`v.
`
`
`
`
`FEARSOME FIVESOME, LC,
`
`
`Registrant.
`
`
`
`PETITION TO CANCEL
`
`MedStar Health, Inc. (“Petitioner”) is a Maryland corporation with an address of 5565
`
`
`
`
`
`
`
`Sterrett Place, 5th Floor, Columbia, Maryland 21044.
`
`According to the Trademark Office Records, Fearsome Fivesome, LC (“Registrant”) is a
`
`Texas limited liability company with an address of 13812 Flat Top Ranch Road, Austin, Texas
`
`78732 and owns U.S. Trademark Registration No. 3,838,606 (the “Registration”) for the mark
`
`MEDSTAR FUNDING.
`
`Petitioner believes that it is and will continue to be damaged by the Registration and
`
`petitions to cancel it as set forth below.
`
`FACTUAL BACKGROUND
`
`1.
`
`Petitioner operates various hospitals and health-related businesses in Maryland,
`
`Virginia, and Washington, DC.
`
`

`
`2.
`
`Petitioner has used the mark MEDSTAR (“Petitioner’s Mark”) in connection with
`
`various medical and hospital services since at least as early as June 1979.
`
`3.
`
`Opposer is the owner of several prior incontestable registrations for the mark
`
`MEDSTAR for medical and hospital services (“Petitioner’s Services”) the earliest of which was
`
`registered March 26, 1985, Registration Number 1,327,545. The other prior incontestable
`
`registrations for or incorporating the mark MEDSTAR owned by Petitioner for medical related
`
`goods and services include: Copies of the TESS records are attached as Exhibit A.
`
`Mark
`MEDSTAR
`MEDSTAR
`MEDSTAR
`SPORTSHEALTH
`
`Registration No. Registration Date
`1,498,006
`July 26, 1988
`2,828,750
`April 6, 2004
`3,009,989
`November 1, 2005
`
`4.
`
`On December 5, 2008, Registrant filed an intent to use application for the mark
`
`MEDSTAR FUNDING (“Mark”) that ultimately matured to the Registration for use in
`
`connection with Medical accounts receivable financing, namely, the purchase of receivables
`
`secured by assignment from medical providers and subsequent resale of the receivables to third
`
`parties (“Services”), claiming to have used the mark in commerce since February 1, 2010.
`
`5.
`
`Upon information and belief, Registrant has expanded its Services to provide
`
`funding of medical and surgical procedures for hospital and medical patients using the Mark.
`
`6.
`
`7.
`
`8.
`
`The Application was published for opposition on April 14, 2009.
`
`The Registration was issued August 24, 2010.
`
`COUNT I: LIKELIHOOD OF CONFUSION
`
`Petitioner re-alleges and incorporates by reference paragraphs 1 through 7 of this
`
`Petition as if fully set forth herein.
`
`
`
`2
`
`

`
`9.
`
`Petitioner’s Marks and Registrant’s Mark prominently feature the term
`
`MEDSTAR.
`
`10.
`
`11.
`
`12.
`
`13.
`
`14.
`
`consumers.
`
`The word “Funding” in Registrant’s Mark is disclaimed.
`
`Petitioner’s Marks and Registrant’s Mark give the same commercial impression.
`
`Petitioner’s Marks and Registrant’s Mark are confusingly similar.
`
`Registrant’s Services are highly related to Petitioner’s Services.
`
`Registrant’s Services and Petitioner’s Services are marketed to the same types of
`
`15.
`
`Through Petitioner’s long use of Petitioner’s Mark for hospital and medical
`
`related services, Petitioner’s Mark has a strong reputation for rendering high quality medical
`
`services.
`
`16.
`
`Petitioner has used Petitioner’s MEDSTAR mark in connection with Petitioner’s
`
`Services for almost 30 years before the filing date of the application which matured into the
`
`Registration, December 5, 2008.
`
`17.
`
`Petitioner filed its first federal application for Petitioner’s MEDSTAR mark
`
`almost 25 years before the filing date of the application which matured into the Registration,
`
`December 5, 2008.
`
`18.
`
`Petitioner has used Petitioner’s MEDSTAR mark in connection with Petitioner’s
`
`Services prior to any date upon which Registrant can rely.
`
`19.
`
`Because of the similarity between Petitioner’s Marks and Registrant’s Mark, and
`
`the relatedness of Petitioner’s Services and Registrant’s Services, Registrant’s Mark is likely to
`
`cause confusion, cause mistake or deceive the public, and cause the public to believe, incorrectly,
`
`
`
`3
`
`

`
`that Registrant’s Services emanate from, are authorized or endorsed by, or are otherwise
`
`connected with Petitioner in violation of Section 2(d) of the Lanham Act, 15 U.S.C. §1052(d).
`
`COUNT II: DILUTION BY TARNISHMENT
`
`20.
`
`Petitioner re-alleges and incorporates by reference paragraphs 1 through 7 of this
`
`Petition as if fully set forth herein.
`
`21.
`
`Petitioner’s Mark has become famous well prior to the filing of the application
`
`that matured into the Registration and the date of first use alleged by Registrant.
`
`22.
`
`Upon information and belief, Registrant’s Mark has recently been associated in
`
`the media with deceptive business practices relating to funding medical and surgical procedures.
`
`23.
`
`Registrant’s Mark is virtually identical to Petitioner’s Mark, as to dilute by
`
`tarnishment or be likely to cause dilution by tarnishment, of the distinctive quality and goodwill
`
`of Petitioner’s famous mark in violation of Section 43(c) of the Lanham Act, 15 U.S.C.
`
`§1125(c).
`
`COUNT III: MISLEADING USE
`
`24.
`
`Petitioner re-alleges and incorporates by reference paragraphs 1 through 7 of this
`
`Petition as if fully set forth herein.
`
`25.
`
`Petitioner has used the colors blue and gold in connection with Petitioner’s
`
`Services and the Petitioner’s Mark since at least as early as 2006.
`
`26.
`
`In 2008, Registrant filed an intent to use trademark application for a design mark
`
`incorporating the words MEDSTAR FUNDING in blue with the letter “a” in the word “medstar”
`
`replaced with a green star which matured into Registration Number 3,785,703. A copy of the
`
`TESS record is attached as Exhibit B.
`
`
`
`4
`
`

`
`27.
`
`Registrant has since changed the color of its logo on its website to incorporate
`
`Petitioner’s signature colors, blue and gold and, in 2010, filed a new trademark application for its
`
`MEDSTAR FUNDING design mark but now claiming Petitioner’s signature colors, blue and
`
`gold. Said application has matured in the Registration Number 3,904,370. A copy of the TESS
`
`record is attached as Exhibit C.
`
`28.
`
` Upon information and belief, Registrant has actual knowledge of Petitioner’s use
`
`of the mark MEDSTAR.
`
`29.
`
`Upon information and belief, Registrant deliberately began using and is currently
`
`using the term MEDSTAR without the term FUNDING.
`
`30.
`
`Upon information and belief, Registrant has expanded its services bearing the
`
`Mark from Medical accounts receivable financing, namely, the purchase of receivables secured
`
`by assignment from medical providers and subsequent resale of the receivables to third parties
`
`to services more closely related to Petitioner’s Services such as funding medical and surgical
`
`procedures for hospital and medical patients.
`
`31.
`
`By changing the use of its Mark to incorporate Petitioner’s signature colors;
`
`adopting use of the mark MEDSTAR without the term FUNDING; and using the revised Mark
`
`in connection with services that are more closely related to Petitioner’s Services, Registrant is a
`
`deliberately using the Mark to misrepresent the source of the Services in connection with which
`
`the Mark is used in violation of Section 14(3) of the Lanham Act, 15 U.S.C. §1064(3).
`
`*
`
`*
`
`*
`
`
`
`THEREFORE, Petitioner prays that the Trademark Trial and Appeal Board sustain this
`
`Petition and cancel Registration No. 3,838,606 for MEDSTAR FUNDING.
`
`
`
`5
`
`

`
`The required fee accompanies this Petition. Please charge any additional fees to Deposit
`
`Account No. 50-6424.
`
`Please recognize Cory M. Amron, William H. Oldach III, Tanya Curcio and Laura T.
`
`Geyer, all members of the bar of the District of Columbia, and the firm of Vorys, Sater, Seymour
`
`and Pease, LLP, as Petitioner’s attorneys to prosecute this Petition to Cancel.
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`________________
`Cory M. Amron
`William H. Oldach III
`Tanya M. Curcio
`Laura T. Geyer
`VORYS, SATER, SEYMOUR & PEASE LLP
`1909 K Street, NW
`Ninth Floor
`Washington, DC 20006
`Telephone: 202.467.8800
`E-Mail: iplaw@vorys.com
`
`Attorney for Petitioner
`MEDSTAR HEALTH, INC.
`
`6
`
`
`
`
`
`Date: August 24, 2015
`
`
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`

`
`CERTIFICATE OF SERVICE
`
`
`
`I certify that a true and correct copy of the foregoing Petition to Cancel was served on
`August 24, 2015, by first-class United States Mail, postage prepaid, on:
`
`
`President
`Fearsome Fivesome, LC
`13812 Flat Top Ranch Road
`Austin, TX 78732
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`______________________
`Tanya Marie Curcio
`
`
`
`
`
`
`
`
`
`
`
`
`
`22677336
`
`7
`
`

`
`EXHIBIT A
`EXHIBIT A
`
`
`
`
`

`
`a United States Patent and Trademark Office
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`
`MEDSTAR
`
`MEDSTAR
`IC 042. US 100. G & S: Providing an Emergency Care Facility for Critically Ill and Injured Persons. FIRST USE: 19790600. FIRST USE IN COMMERCE: 19790600
`
`Word Mark
`Goods and Services
`Standard Characters Claimed
`Mark Drawing Code
`Serial Number
`Filing Date
`Current Basis
`Original Filing Basis
`Published for Opposition
`Change In Registration
`Registration Number
`Registration Date
`Owner
`
`(4) STANDARD CHARACTER MARK
`73470690
`March 16, 1934
`1A
`1A
`January 15, 1985
`CHANGE IN REGISTRATION HAS OCCURRED
`1327545
`March 26, 1985
`(REGISTRANTI Washington Heallhcare Corporation CORPORATION D.C. 100 Irving St. NW. Washington D.C. 20010
`
`Assignment Recorded
`Attorney of Record
`Description of Mark
`Type of Mark
`Register
`Affidavit Text
`Renewal
`LivelDead Indicator
`
`(LAST LISTED OWNER) MEDSTAR HEALTH, INC. CORPORATION MARYLAND 5565 Sterret Place Columbia MARYLAND 21044
`ASSIGNMENT RECORDED
`CORY M. AMRON
`Color is not claimed as a feature of the mark.
`SERVICE MARK
`PRINCIPAL
`SECT 15. SECT B (6—YR). SECTION 3(1D—YR) 20140414.
`2ND RENEWAL 20140414
`LIVE
`
`W I
`
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`Typed Drawing
`Word Mark
`MEDSTAR
`Goods and Services
`IC 036. US 102. G 8; S: INSURANCE BROKERAGE AND INSURANCE ADMINISTRATION SERVICES. FIRST USE: 19350710. FIRST USE IN COMMERCE: 19350710
`Mark Drawing Code
`(1) TYPED DRAWING
`Serial Number
`73595520
`Filing Date
`April 28, 1986
`Current Basis
`1A
`Original Filing Basis
`‘IA
`Published for Opposition November 18, 1986
`Registration Number
`1498006
`Registration Date
`July 26, 1988
`Owner
`(REGISTRANT) BENEFIT TRUST LIFE INSURANCE COMPANY CORPORATION ILLINOIS 400 FIELD DRIVE LAKE FOREST ILLINOIS 600452581
`(LAST LISTED OWNER) MEDSTAR HEALTH, INC. CORPORATION MARYLAND 5565 STERRET PLACE COLUMBIA MARYLAND 21044
`ASSIGNMENT RECORDED
`Cory M. Amron
`SERVICE MARK
`PRINCIPAL
`SECT 15. SECT B (6-YR). SECTION 8(10-YR) 20080730.
`1ST RENEWAL 20060730
`LIVE
`
`Assignment Recorded
`Attorney of Record
`Type of Mark
`Register
`Affidavit Text
`Renewal
`LivelDead Indicator
`
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`Typed Drawing
`Word Mark
`MEDSTAR
`Goods and Services
`IC 042. US 100 101. G & S: medical and hospital services. FIRST USE: 19790600. FIRST USE IN COMMERCE: 19790600
`Mark Drawing Code
`(1) TYPED DRAWING
`Serial Number
`75609532
`Filing Date
`December 21, 1998
`Current Basis
`1A
`Original Filing Basis
`1A
`Published for Opposition January 13, 2004
`Registration Number
`2828750
`Registration Date
`April 6, 2004
`Owner
`(REGISTRANT) MEDSTAR HEALTH, INC. CORPORATION MARYLAND 5565 Sterrett Place 5th Floor Columbia MARYLAND 21044
`Assignment Recorded
`ASSIGNMENT RECORDED
`Attorney of Record
`Cory M. Amron
`Prior Registrations
`1327545;AND OTHERS
`Type of Mark
`SERVICE MARK
`Register
`PRINCIPAL
`Affidavit Text
`SECT 15. SECT B (6—YR). SECTION 8(1U—YR) 20130917.
`Renewal
`1ST RENEWAL 20130917
`LivelDead Indicator
`LIVE
`
`@@
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`MEDSTAR SPORTSHEALTH
`Word Mark
`IC. 044. US ‘I00 101. G & S: Medical and healthcare services offered to active individuals, athletes and athletic teams. FIRST USE: 20030600. FIRST USE IN COMMERCE: 20030600
`Goods and Services
`(‘I) TYPED DRAWING
`Mark Drawing Code
`76538519
`Serial Number
`August 15, 2003
`Filing Date
`1A
`Current Basis
`‘IB
`Original Filing Basis
`Published for Opposition June 21,2005
`Registration Number
`3009989
`Registration Date
`November 1. 2005
`Owner
`(REGISTRANT) MEDSTAR HEALTH, INC. CORPORATION MARYLAND 5565 STERRET PLACE 5TH FLOOR COLUMBIA MARYLAND 21044
`Assignment Recorded
`ASSIGNMENT RECORDED
`Attorney of Record
`Cory M. Amron
`Prior Registrations
`13275452826750
`Disclaimer
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "SPORTSHEALTH" APART FROM THE MARK AS SHOWN
`Type of Mark
`SERVICE MARK
`Register
`PRINCIPAL
`Affidavit Text
`SECT 15. SECT B (6—YR).
`LivelDead Indicator
`LIVE
`
`M I
`
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`EXHIBIT B
`EXHIBIT B
`
`
`
`
`

`
`F3 United States Patent and Trademark Office
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`\" Home Site Index Search FAQ Glossary Guides Contacts eflusiness eliiz alerts News Help
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`
`MEDST R
`
`Mark Drawing Code
`Design Search Code
`
`FUNDING
`Word Mark
`MEDSTAR FUNDING
`Goods and Services
`IC 036. US 100 101 102. G & S. Medical accounts receivable financing, namely, the purchase of receivables secured by assignment from medical providers and subsequent resell
`of the receivables to third parties. FIRST USE: 20100201. FIRST USE IN COMMERCE: 20100201
`(3) DESIGN PLUS WORDS, LETTERS, ANDIOR NUMBERS
`01.01.09 - Stars. two; Two stars
`01.01.13 - Stars — multiple stars with five points
`27.03.05 - Objects forming letters or numerals
`LETTER-3-OR-MORE MED Combination of three or more letters as part of the mark
`SHAPES—ASTRO Astronomical shapes consisting of celestial bodies, globes and geographical maps
`SHAPES-COLORS-3-OR-MORE Design listing or lined forthree or more colors
`77627753
`December 5, 2008
`1A
`1B
`April 14, 2009
`3785703
`May 4, 2010
`(REGISTRANT) Fearsome Fivesome, LC DBA MedStar Funding LIMITED LIABILITY COMPANY TEXAS 13312 Flat Top Ranch Road Austin TEXAS 78732
`C. Russell Riddle
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "FUNDING" APART FROM THE MARK AS SHOWN
`The coIor(s) blue, green and white is/are claimed as a feature of the mark. The mark consists ofA white rectangle, outlined in blue. Within the rectangle are the letters "MEDST R
`FUNDING" in blue. Between the letters "T" and "R“ is a white star, outlined in green, with a solid green star in the middle.
`SERVICE MARK
`PRINCIPAL
`LIVE
`
`Trademark Search Facility
`Classification Code
`Serial Number
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`EXHIBIT C
`EXHIBIT C
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`‘ a United States Patent and Trademark Office
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`Home Site Index Search FAQ Glossary Guides Contacts eflusiness eBiz alerts News Help
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`TESS was last updated on Mon Aug 24 03:22:09 EDT 2015
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`MEDST7§ G
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`Mark Drawing Code
`Design Search Code
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`FUNDI
`Word Mark
`MEDST R FUNDING
`Goods and Services
`IC 036. US 100 101 102. G & S: Medical accounts receivable financing, namely, the purchase of receivables secured by assignment from medical providers and subsequent resell
`of the receivables to third parties. FIRST USE: 20100215. FIRST USE IN COMMERCE: 20100215
`(3) DESIGN PLUS WORDS, LETTERS, ANDIOR NUMBERS
`01.01.09 - Stars, two; Two stars
`01.01.13 — Stars — multiple stars with five points
`SHAPES—ASTRO Astronomical shapes consisting of celestial bodies, globes and geographical maps
`SHAPES-COLORS-2 Design listing or lined for two colors
`SHAPES—MlSC Miscellaneous shaped designs
`85054420
`June 3, 2010
`1A
`1A
`October 26, 2010
`3904370
`January 11,2011
`(REGISTRANT) Fearsome Fivesome, LC DBA MedStar Funding LIMITED LIABILITY COMPANY TEXAS 13812 Flat Top Ranch Road Austin TEXAS 78732
`C. Russell Riddle
`37B5703;3B3B606
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "FUNDING" APART FROM THE MARK AS SHOWN
`The coIor(s) blue, gold and white islare claimed as a feature of the mark. The mark consists of a white rectangle, outlined in blue. Within the rectangle are the letters "MEDST R
`FUNDING" in blue. Between the letters "T" and "R" is a white star. outlined in gold, with a solid gold star in the middle.
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