Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA803884
`
`Filing date:
`
`02/27/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92064833
`
`Party
`
`Correspondence
`Address
`
`Defendant
`David M. Semas
`
`DAVID M SEMAS
`9900 WILBUR MAY PKWY UNITE 2406
`RENO, NV 89521
`UNITED STATES
`david@sierradorado.com
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Attachments
`
`Other Motions/Papers
`
`David M. Semas
`
`david@sierradorado.com
`
`/s/ David M. Semas
`
`02/27/2017
`
`Final Semas Opposition To Motion To Strike Cancellation No. 92064833
`Chemeon v. Semas 022717.pdf(516114 bytes )
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. 92064833
`
`
`
`Mark: Metalast
`Reg. No. 2963106
`
`Chemeon Surface Technology, LLC,
`
`
`
`
`
`
`Petitioner,
`
`
`
` vs.
`
`
`David M. Semas,
`
`
`
`
`Respondent.
`
`
`
`
`OPPOSITION TO BRIEF IN SUPPORT OF PETITIONER’S
`MOTION TO STRIKE NEW ARGUMENTS OR ALTERNATIVELY
`BE GIVEN LEAVE TO FILE RESPONSE TO NEW ARGUMENTS
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Petitioner's motion to strike (Docket 14) exactly makes the point why this
`
`proceeding should be stayed pending adjudication of the District Court action.
`
`
`
`On January 18, 2017, Respondent filed a Motion to Suspend (Docket 5). On
`
`February 2, 2017, the Board entered an order temporarily suspending this
`
`proceeding, including briefing on Petitioner's Motion for Summary Judgment, pending
`
`disposition of the Motion to Suspend. (Order, Docket 8). The February 2, 2017 order
`
`also commanded Respondent to supply pleadings from the District Court action.
`
`
`
`On February 13, 2017, Respondent filed the pleadings from the District Court
`
`action, along with a transmittal letter that explains that the pleadings, alone, do not
`
`tell the whole story about the status of the District Court action. It is impossible to
`
`understand that status of the District Court action without also learning about the
`
`
`
`1
`
`

`

`Bankruptcy Court action (in which Petitioner claimed ownership of the Metalast®
`
`trademark), the settlement of that action by a Bankruptcy Judge, the fact that the
`
`District Court asked the Bankruptcy Court to interpret the settlement, and the
`
`Bankruptcy Court's advice to the parties and the District Court about the meaning of
`
`the settlement. Petitioner has merely supplied these documents in the prior court
`
`proceedings and drawn attention to the language suggesting reasons why this action
`
`should be suspended. By doing so, Respondent has not raised new arguments.
`
`Petitioner alleges that Respondent’s Supplement went further, claiming new
`
`arguments not presented in “his original Motion to Suspend”, but does not refer to the
`
`Respondent’s original “Response To Petition for Cancellation”, with its numerous
`
`Exhibits, dated December 1, 2016, which clearly identifies and describes the unlawful
`
`actions of the Petitioner below. The Respondent did not present “new arguments”, but
`
`just restated previous facts given to TTAB. The Petitioner falsely claims the following
`
`three allegations contained in Respondent’s supplemental submittal represented “new
`
`arguments” and challenges the following;
`
`Petitioner’s Allegation 1. The Petitioner has refused to comply with
`the plain language of the Settlement Agreement. … Thus, the 90-day period
`for the Petitioner to have stopped the use of the "Metalast" name expired
`almost two years ago.
`
`ANSWER: Correct. In the Response on Page 8, paragraph 12, it states:
`“Respondent denies that, starting June 10, 2015 Petitioner halted the use
`of the Metalast® trademarks to market its products, as reality and factual
`evidence clealy proves otherwise. Petitioner referred to every one of its
`approximately 120 chemical products as Chemeon XXX (formerly Metalast
`xxx). This was an attempt to continue using the Metalast mark in a way
`that violated the 2015 Settlement Agreement.”
`
`Petitioner’s Allegation 2. Over my objections, Petitioner has not
`halted this practice. The District Court asked the Bankruptcy Court to
`
`
`
`2
`
`

`

`interpret the settlement. The Bankruptcy Court confirmed that the
`settlement precluded the Petitioner’s use of the trademark and was an
`“absolute prohibition” from using the name "Metalast" for any purpose at
`all. Exhibit 9, pages 6, 8, 9, 15. . . . .
`
`ANSWER: Correct. Petitioner has not halted this practice to this date
`as acknowledged in its own pleadings and motions before the courts. On
`Page 5, middle of the first full paragraph of the Response Respondent
`stated, “Then, after the matter of ownership was settled, Petitioner
`essentially thumbed its nose at the Federal Bankruptcy Court that
`mediated in January 2015 and reaffirmed on December 3, 2015. That
`court described the Settlement Agreement as containing an "absolute
`prohibition" against any use of the word "Metalast" by Petitioner. Yet
`Petitioner has constantly and consistently referred to itself as Chemeon
`"FORMERLY METALAST." Exhibit 1, page 6, line 11.
`
` The current Petition to Cancel the
`Petitioner’s Allegation 3.
`registration of the Metalast mark is plainly a third attempt to subvert the
`March 11, 2015 Settlement Agreement. It is also inconsistent with the
`positions Petitioner had
`taken before. The Petitioner alleges
`“Abandonment For Non-Use” in this action, yet claimed that I have
`engaged in "Unfair Competition" by using the mark. See First Amended
`Complaint, Exhibit 5, pages 44-45.
`
`ANSWER: Correct. It is in fact the Petitioner’s third attempt to subvert
`the January 29, 2015 Settlement Agreement, see the following;
`
`Attempt 1.
` On February 19, 2015 Petitioner’s counsel argued
`in an effort to unwind the Settlement Agreement, which was
`resoundingly denied by Judge Zive. Exhibit 2, page 1.
`
`Attempt 2.
` Although the Petitioner was to have stopped the
`use of the name and trademark Metalast 90-days after March 11,
`2015 (June 9, 2015), the Petitioner filed the U.S. District Court
`action (June 6, 2015) and has continued to use the Metalast®
`trademark, name and brand. On December 3, 2015 Judge Beesley
`of the U.S. Bankruptcy Court interpreted and provided a definitive
`clarification of the Settlement Agreement at the request of the U.S.
`District Court. Exhibit 1, pages 6, 7, 9, 14 and 15.
`
`Attempt 3.
` On November 16, 2016 Petitioner filed its third
`legal action, but this time with TTAB for a Petition For
`Cancellation alleging Fraudulent Registration on a trademark
`owned by Respondent and Abandonment for Non-Use, although
`Respondent sells its Metalast® CC-100 chemical and lastly for
`Confusion as to Source of Original on the Respondent’s trademark
`continually in commerce for almost 25-years.
`
`
`
`3
`
`

`

`II.
`
`
`
`RESPONSE TO ARGUMENT
`
`The references in Respondent’s “Motion to Suspend Supplement” letter of
`
`February 13, 2017 are not in anyway misleading factually, legally or otherwise and
`
`do not introduce new arguments not already contained in the original Response To
`
`Petition For Cancellation dated December 1, 2016. As confirmed in numerous
`
`pleadings and motions filed with the Bankruptcy Court, the U.S. District Court and
`
`TTAB the Petitioner has consistently refused to comply with the plain language of
`
`the Settlement Agreement and has claimed it has the unilateral right to do so.
`
`On the other hand, Petitioner's Motion to Strike (Docket 14) makes new
`
`arguments. More important, it absolutely misrepresents that the District Court has
`
`ruled in favor of Petitioner that it is free to sell its goods and services by
`
`referencing them as "formerly Metalast." The District Court has not made that
`
`ruling, which is the subject of a summary judgment motion filed in May 2016. The
`
`transcript cited in the Motion to Strike is only a colloquy between the judge and
`
`counsel. At the end of that hearing, the District Judge referred the matter back to
`
`the Bankruptcy Judge to interpret the settlement.
`
`The Petitioner attempts to introduce a new argument before TTAB that is
`
`once again fashioned around the claim the Steppenwolf case (e.g., Kassbaum v.
`
`Steppenwolf Productions, Inc., 236 F. 3d 487, 490-92 (9th Cir. 2000) filed before the
`
`U.S. Bankruptcy Court, David M. Semas and Susan O. Semas, Case No. 13-52338-btb
`
`(Chapter 11) and the U.S. District Court, Chemeon Surface Technology, LLC v.
`
`Metalast International, Inc., Case No. 3:15-CV-00294-MMD-VPC (D. Nev.).
`
`Thus far, the Petitioner’s argument that the Steppenwolf case provides some
`
`
`
`4
`
`

`

`sort of long established law is wishful thinking and nothing more than a legal
`
`theory crafted to circumvent the Petitioner’s refusal to comply with the terms of
`
`the binding Settlement Agreement. This is a case where a band member wants to
`
`refer that he was “formerly with the band Steppenwolf”, but is not claiming “he
`
`is Steppenwolf.” On the other hand, the Petitioner is not alleging they were
`
`“formerly with the company Metalast”, but rather attempting to confuse the
`
`public, usurp the law and the binding Settlement Agreement by claiming to the
`
`metal finishing industry and entire chemical world “the Petitioner was Metalast”,
`
`thus representing the “Metalast®” company no longer exists.
`
`As verified by the USPTO the Respondent’s Metalast® International, Inc.,
`
`(“MII”) was the original owner of the Metalast® trademark, name and brand since
`
`May 1994, seven months prior to the formation of Metalast International, LLC
`
`(“MILLC”), whom the Petitioner acquired its assets in November 2013. The
`
`Respondent’s Metalast, Inc. (“MTI”) sold its Metalast® CC-100 corrosion control
`
`chemical product in 2015, 2016 and another sale as recent as February 20, 2017.
`
`As stated above it is a gross misrepresentation for the Petitioner to make
`
`false claims the District Court “made a ruling” supporting the Petitioner’s
`
`Steppenwolf argument. Further it’s unbelievable the Petitioner would go as far as
`
`to represent to TTAB; “The District Court thus held that Chemeon may use the term
`
`Metalast to explain its former use of that term (i.e., as Chemeon’s former tradename
`
`and mark),” when they did no such thing. The erroneous allegation that “Semas
`
`simply refuses to accept these rulings and the conventional rules of contract law” is
`
`defamatory and another slick legal ploy by the Petitioner designed to undermine
`
`
`
`5
`
`

`

`the credibility of Semas in an effort to confusion the court and try to make the
`
`Respondent’s legal arguments irrelevant.
`
`On October 20, 2015 Judge Du of the U.S. District Court ordered the
`
`Petitioner and Respondent to go back to the U.S. Bankruptcy Court for
`
`a clarification of the Settlement Agreement. Judge Du stated: “What I'm directing
`
`the parties to do is, because of the terms of the Settlement Agreement, as presented
`
`on the record requires -- well, the parties agreed that the settlement judge
`
`retain jurisdiction to decide any disagreement as to the interpretation of the
`
`contract, and that's the provision I'm proceeding on. That's the basis for my Order
`
`for the parties to go back to the settlement judge.” Exhibit 3, page 10, Lines 1-8.
`
`Contrary to the false representations made by the Petitioner on October 20th
`
`the District Court expressed reservations about the Steppenwolf argument: THE
`
`COURT: “And for what it’s worth Mr. Ryan, I looked at the Kassbaum versus
`
`Steppenwolf production decision. There may be an argument that the case is
`
`distinguishable because, there, it's a member of a band saying I'm formerly a
`
`member of that band; so, he's represented he's formerly the member of a whole.
`
`The situation here may be different because you have two, basically, entities, and
`
`the question is whether there's a likelihood that a consumer would be confused.”
`
`Exhibit 3, page 19 and 20.
`
`As previously provided to this court and to the Petitioner via numerous
`
`exhibits and the deposition testimony of Jeffrey M. Mackinen, the Respondent has
`
`demonstrated it has been selling it’s own Metalast® CC-100 chemical product since
`
`2015. Though the Respondent’s MTI company, and as approved by the bankruptcy
`
`6
`
`

`

`court, the Petitioner’s Metalast Surface Technology, LLC (“MST”), and under license
`
`for 16-years prior by MILLC the Respondent has continuously kept the Semas
`
`owned Metalast™ name in commerce since 1993 and the Metalast® trademark
`
`since 1997.
`
`Chemeon clearly does not have the right to ”refer to itself and its products as
`
`formerly being Metalast” as a Motion for Summary Judgment for Breach of Contract
`
`filed by the Respondent with the District Court is pending. It is the Respondent that
`
`is being unfairly prejudiced at least because Petitioner’s new arguments are gross
`
`misrepresentations, incorrect and misleading factually and legally.
`
`III.
`
`CONCLUSION
`
`
`
`For all of the foregoing reasons, Petitioner’s Motions To Strike Arguments
`
`New Arguments or Alternatively Be Given Leave To File A Response to New
`
`Arguments should be denied and their new arguments stricken from the record.
`
`Dated: February 27, 2017
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ David M. Semas
`
`
`
`David M. Semas, in Pro Se
`An individual
`9900 Wilbur May Parkway, Unit 2406
`Reno, Nevada 89521
`Phone: (775) 790-8324
`Email: david@sierradorado.com
`
`7
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that, on this 27th day of February, 2017, a true and correct copy of the
`
`foregoing Opposition To Brief in Support of Petitioner’s Motion To Strike New
`
`Arguments Or Alternatively Be Given Leave To File Response To New Arguments
`
`has been served by email on the Petitioner, by sending it to their email address as
`
`follows: RCRyan@hollandhart.com and TReid@hollandhart.com
`
`
`
`Robert C. Ryan
`Christopher B. Hadley
`Tamara Reid
`Michelle N. Brooks
`HOLLAND & HART LLP
`5441 Kietzke Lane, 2nd Floor
`Reno, Nevada 89511
`
`/s/ David M. Semas
`
`
`
`David M. Semas, in Pro Se
`An individual
`
`
`
`8
`
`
`
`
`
`
`
`
`
`

`

`
`
`EXHIBIT 1
`
`Chemeon Surface Technology, LLC v. David M. Semas
`Cancellation No. 92064833
`
`
`
`

`

`UNITED STATES BANKRUPTCY COURT
`DISTRICT OF NEVADA (RENO)
`
`
`IN RE: . Case No. 13-52337-BTB
` .
`DAVID M. SEMAS and . Chapter 11
`SUSAN O. SEMAS, .
` . 300 Booth Street
` . Reno, NV 89509
` Debtors. .
`
` . Thursday, December 3,2015
`. . . . . . . . . . . . . . . 9:41 a.m.
`
`TRANSCRIPT OF JUDGE'S RULING RE: DOC #414 AMENDED MOTION TO
`RECONSIDER BY JUDGE BRUCE T. BEESLEY FILED BY STEPHEN R. HARRIS
`ON BEHALF OF DAVID M. SEMAS, SUSAN O. SEMAS
`BEFORE THE HONORABLE BRUCE T. BEESLEY
`
`UNITED STATES BANKRUPTCY COURT JUDGE
`
`APPEARANCES:
`
`For the Debtors:
`
`Harris Law Practice, LLC
`By: STEPHEN R. HARRIS, ESQ.
`6151 Lakeside Drive, Suite 2100
`Reno, NV 89511
`(775) 786-7600
`
`For Dean & Madylon Meiling
`and CHEMEON Surface
`Technology, LLC:
`
`Holland & Hart
`By: TIMOTHY A. LUKAS, ESQ.
`5441 Kietzke Lane, Second Floor
`Reno, NV 89511
`(775) 327-3000
`
`For David Semas: Hoy Chrissinger Kimmel Vallas PC
`By: MICHAEL D. HOY, ESQ
`50 W. Liberty Street, Suite 840
`Reno, NV 89501
`(775) 786-8000
`
`Audio Operator: Stacie C. Burney, ECR
`
`Transcription Company: Access Transcripts, LLC
` 10110 Youngwood Lane
` Fishers, IN 46038
` (855) 873-2223
` www.accesstranscripts.com
`
`Proceedings recorded by electronic sound recording,
`transcript produced by transcription service.
`
`

`

`2
`
`1
`
`2
`
`(Proceedings commence at 9:41 a.m.)
`
`THE COURT: -- in the case of David M. Semas and
`
`3 Susan Semas, Case Number 13-52337. Appearances, please.
`
`4
`
`MR. HARRIS: Your Honor, Steve Harris representing
`
`5 the debtors. And debtor David Semas is present.
`
`6
`
`MR. LUKAS: Good morning, Your Honor. Tim Lukas on
`
`7 behalf of CHEMEON and the Meilings.
`
`8
`
`THE COURT: Okay. Pursuant to a transcript that
`
`9 Judge Du -- of a proceeding Judge Du held some weeks ago, I've
`
`10 been asked by Judge Du to clarify the settlement in this case.
`
`11 And it's a little confusing to do that because as all -- well,
`
`12 as most of you or some of you know, there was a several-hour
`
`13 settlement conference.
`
`14
`
`The result of the settlement conference was that
`
`15 Judge Zive placed a settlement on the record. Subsequent to
`
`16 that there was a proposed written order and the Meiling Group,
`
`17 the Metalast people, the Meiling Group rejected that and Judge
`
`18 Zive determined that the transcript was, in fact, the
`
`19 settlement. And I'll go into that a little more deeper.
`
`20
`
`Thereafter there were actions by the Meilings and the
`
`21 Metalast group to use the name "Metalast" as I -- the only ones
`
`22 I've saw it is there products were labeled "formerly known as
`
`23 Metalast." That resulted in a motion asking me to enforce the
`
`24 terms of the settlement and also to ask Judge Zive to do that.
`
`25
`
`Judge Zive indicated that although he said in the
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`3
`
`1 documents that he would enforce a settlement, it was his
`
`2 understanding that he would enforce it up until it was approved
`
`3 by the Court. And when it was approved by the Court, both of
`
`4 us are of the opinion that it actually became a contract
`
`5 between the parties. It was not really something that was in
`
`6 the realm of the bankruptcy anymore.
`
`7
`
`Although I would have had jurisdiction, I declined to
`
`8 exercise supplemental jurisdiction. I'm not going to overturn
`
`9 that, but I am going to give my understanding of the settlement
`
`10 -- what I believe the settlement that I approved was. And I --
`
`11 which I think is -- satisfies Judge Du's request.
`
`12
`
`So, first off, there was a settlement conference,
`
`13 parties were both represented by capable counsel, and it lasted
`
`14 about six hours, at least according to the pleadings I've read.
`
`15
`
`There's -- one of the allegations was there was never
`
`16 actually a settlement that was placed on the record. But I --
`
`17 that's incorrect. There's just no merit to that contention.
`
`18 If you look at the transcript Page 4, starting on Line 23,
`
`19 Judge Zive says as follows:
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"Following hours of good faith negotiation, the
`
`parties have entered into agreement. I've advised
`
`the parties that I will place the agreement on the
`
`record. Give counsel a chance to correct any errors
`
`I've made or notes -- or note any omissions that I
`
`have made, then I will ask the parties if they
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`4
`
`understand the terms of the agreement and agree to be
`
`bound by the agreement. And of course, if they have
`
`any questions at that time, they should ask me. And
`
`I've also advised the parties that if the agreement
`
`is placed on the record, as I understand it, that
`
`they are bound immediately upon the completion of
`
`this hearing."
`
`And dropping down to Line 14 on -- or 13 or 14 on
`
`9 Page 5, it says:
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`"But as between the parties, there's an agreement
`
`now. It is fully enforceable and that I would
`
`enforce it if necessary by use of contempt or any
`
`other remedy available to me and if each said they
`
`understood that and agreed."
`
`So I'll get to this a little later, but later on in
`
`16 the -- near the end of the transcript, each of the Meiling
`
`17 parties was placed under oath. Each was asked if they
`
`18 understood the agreement. Each of them said yes. Mrs. -- I
`
`19 think it was Mrs. Meiling had a question about the name, which
`
`20 I'll get to in a little bit.
`
`21
`
`So one of the other content questions is does this
`
`22 apply to both trademarks and trade names. And I confess I am
`
`23 not an expert on the difference between trademarks and trade
`
`24 names, but it's my opinion that it does apply both to
`
`25 trademarks and trade names.
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`5
`
`1
`
`The term "trademark" is used throughout the
`
`2 transcript. But there's also some question concerning naming
`
`3 of properties which I -- and I believe it was a -- it was my
`
`4 intention and my understanding when I entered the -- an order
`
`5 approving this settlement that this settlement restricted the
`
`6 use of both trademarks and trade names.
`
`7
`
`A couple reasons for that. First, at Page 5, Line 24
`
`8 Judge Zive says:
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"There -- that there is a trademark regarding the
`
`name 'Metalast,' there is a dispute regarding
`
`ownership. That dispute has been resolved as
`
`follows:"
`
`I'm on Page 6.
`
`"Metalast Surface Technologies, through the Meilings,
`
`will continue to use the mark for 90 days following
`
`entry of the order approving the settlement agreement
`
`by Judge Beesley, if he does approve it. At the end
`
`of that 90-day period, Metalast Surface Technology,
`
`the Meilings, and any other entity in which the
`
`Meilings have an interest, will no longer be able to
`
`use the name 'Metalast' in any fashion or manner
`
`whatsoever following the 90 days. The mark will be
`
`owned by Mr. and Mrs. Semas or an entity to which
`
`they -- or any entity in which they choose to
`
`transfer that mark."
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`6
`
`1
`
`So I read "no longer able to use the name Metalast in
`
`2 any fashion, in any manner whatsoever" following that 90-day
`
`3 period would include not only the trademark, but any use of the
`
`4 name "Metalast" for any purpose at all, which I believe would
`
`5 include the trade name.
`
`6
`
`But again, I am not an expert on trademarks and trade
`
`7 names, but I believe a fair reading of what Judge Zive said
`
`8 includes limits any use of the term "Metalast" at all. It can
`
`9 go on for 90 days. It cannot be used by any of the Meiling
`
`10 entities or the Meilings or anything they own thereafter. It's
`
`11 an absolute prohibition.
`
`12
`
`There was some additional comments made during the
`
`13 course of this that I don't -- I -- are not as clear. I mean,
`
`14 they're -- I think they're just instructive. But there was a
`
`15 question on -- there was a question by Mr. Harris about neutral
`
`16 releases on Page 8 of the transcript. And the Court said --
`
`17 Mr. Harris said they -- you have the mutual release language.
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`The judge said:
`
`"Oh, I'm sorry. As the underlying predicate for all
`
`of this there's a pending adversary seeking relief
`
`under various claims for relief including non-
`
`dischargeability under three separate subdivisions of
`
`Section 523. The Meilings agree to dismiss that
`
`adversary with prejudice and waive any and all claims
`
`they have from the beginning of time through the date
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`7
`
`1
`
`2
`
`3
`
`4
`
`of entering the settlement agreement and that they
`
`may have known or unknown, anticipated or
`
`unanticipated against Mr. and Mrs. Semas."
`
`So I read that language to believe that any disputes,
`
`5 any claims, whether asserted in the complaint or not, that the
`
`6 Meilings or any of their entities may have against the Semases
`
`7 are resolved by this settlement. And the resolution of this
`
`8 settlement is set forth in this transcript. It involved a
`
`9 limited use of the Metalast name for a period of time. It
`
`10 allowed the exchange of some payments to be made, agreements
`
`11 not to object to the plan, but the key issue is the term
`
`12 "Metalast."
`
`13
`
`And Mr. and Mrs. Semas, on their part, agreed to
`
`14 release the Meilings and Metalast Surface Technologies from any
`
`15 claims they could have made, including the patent infringement
`
`16 case, but not limited to the patent infringement case. Any
`
`17 claims whatsoever from the beginning of time and until a
`
`18 settlement agreement is approved, known or unknown, anticipated
`
`19 or unanticipated, foreseen or for unforeseen, it's a mutual
`
`20 release. So whatever disputes they had concerning anything,
`
`21 but particularly concerning the term "Metalast" was resolved by
`
`22 this agreement.
`
`23
`
`There's a question -- pardon me. There's a question
`
`24 by a Mr. -- excuse me. Just a moment. There's a question by
`
`25 Mr. Burns, who it's my understanding is a intellectual
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`1 properties lawyer for -- as for a general term, who was engaged
`
`2 by the Semases. He says:
`
`8
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`"I just want to clarify, Your Honor, it's agreed that
`
`the parties that the trademark is currently owned by
`
`the Semases and that they are -- no assignment is
`
`necessary to transfer any trademark rights."
`
`And the Court says:
`
`"At the same -- at the same time that, for the
`
`purposes only, is that recognized and that Metalast
`
`Surface and the Meilings have the right to use the
`
`mark without compensation in the ordinary course of
`
`their business for a period not to exceed 90 days
`
`following the entry of an order approving the
`
`settlement by Judge Beesley, correct?"
`
`Mr. Burns says yes. The Court says, thank you, Your
`
`16 Honor. Ms. Chubb corrected the spelling or pronunciation of
`
`17 "Meilings." Okay. Ms. Chubb then says with respect to the
`
`18 trademark and so that that's blank, it was indiscernible
`
`19 apparently, Judge Zive responds. And this is on Page 9. I'm
`
`20 looking at Line 24:
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"Whatever the -- whatever counsel for the parties
`
`believe is the most effective and efficient of
`
`accomplishing that clarification regarding ownership
`
`so there's no further dispute, I have no deception."
`
`Ms. Chubb on Page 10, Line 3:
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`9
`
`"I will -- I will represent to the Court, the
`
`Meilings and MST will make all efforts to get the
`
`Metalast name off everything. And I understand Mr.
`
`Semas has the need to fully cooperate with respect to
`
`anything that needs to be done in that regard."
`
`So that reaffirms my belief that this applies to
`
`7 trade names, trademarks, common law rights to use, whatever
`
`8 they have, the counsel for this -- for the Meiling group said
`
`9 that they're going to use the efforts to get the name of
`
`10 Metalast off of everything. There's no qualification to that,
`
`11 it's everything.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`The Court then says on Page 10, Line 12, it says:
`
`"As part of the record there's a covenant of good
`
`faith with any contract."
`
`And this is a contract.
`
`"And part of that covenant of good faith is to
`
`cooperate."
`
`And that's cooperate to get the main -- the -- get
`
`19 the -- any issue regarding the transition of the creditor for
`
`20 Metalast Surface Technologies to another name accomplished
`
`21 within 90 days. That would be Page 10, Lines 12 through 18.
`
`22
`
`And then the judge -- I'm just generally describing
`
`23 this. Starting at Page 12 the judge calls the parties forward
`
`24 and has them sworn. And they are sworn. And starting with Ms.
`
`25 Susan Semas, the Court asks her were you -- and you were
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`10
`
`1 president -- present, sorry, when I explained that I considered
`
`2 this agreement to be binding upon you at that time, correct?
`
`3
`
`4
`
`5
`
`6
`
`Ms. Semas -- Susan Semas says, "Yes."
`
`"You understand the terms of the settlement?"
`
`Mrs. -- Susan Semas says, "I do."
`
`"And you agree to be bound by the terms of the
`
`7 settlement?"
`
`8
`
`9
`
`Ms. Semas -- Susan Semas says, "Yes, I do."
`
`Next, the Court calls Mr. David Semas, who has been
`
`10 sworn, says, "You were present when I placed in your counsel
`
`11 and the opposing counsel placed the terms of the settlement on
`
`12 the record. Is that correct?"
`
`13
`
`14
`
`And Mr. David Semas's answer is yes.
`
`Mr. David Semas was asked, "And did you understand
`
`15 those terms?"
`
`16
`
`17
`
`18
`
`19
`
`Mr. David Semas answers, "Yes, I did."
`
`"And you agree to be bound by those terms?"
`
`"Yes, I do."
`
`"And as with your wife, you present -- I'm sorry.
`
`20 And as with your wife, you were present when I described both
`
`21 on the record and before we went on the record that I consider
`
`22 this agreement to be binding upon the parties at this time and
`
`23 I would enforce it if necessary?
`
`24
`
`25
`
`And Mr. David Semas's answer is, "Yes, I do."
`
`The Court says then, "Do either of you have any
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`11
`
`1 questions."
`
`2
`
`3
`
`4
`
`Ms. Semas says, "No".
`
`Mr. Semas says, "No."
`
`The Court then calls Madylon Meiling. I apologize if
`
`5 I mispronounced her first name. This is at Page 14 of the
`
`6 transcript. Ms. Meiling had been previously sworn.
`
`7
`
`The judge asked Ms. Meiling, "Yes, have you heard the
`
`8 terms of the settlement that was placed on the record by and
`
`9 counsel?"
`
`10
`
`11
`
`"Yes, Your Honor," is the answer.
`
`"Do you understand that terms of the settlement -- of
`
`12 the agreement?"
`
`13
`
`14
`
`15
`
`16
`
`Ms. Meiling answers, "Yes, Your Honor.
`
`"Do you agree to be bound by those?"
`
`Ms. Meiling answers, "Yes.
`
`"And do you have authority to enter into this
`
`17 agreement on behalf of Metalast Surface Technology?"
`
`18
`
`19
`
`20
`
`Question: "Technology LLC?"
`
`Answer: "Yes, I do.
`
`"And do you agree that entity will be bound by the
`
`21 terms of the settlement agreement?"
`
`22
`
`23
`
`Ms. Meiling says, "Yes.
`
`"And you were present both before and after we were
`
`24 on the record when I explained that I would enforce the
`
`25 agreement before I consider it binding as -- but because I
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`12
`
`1 consider it binding, as of this time between the parties and
`
`2 then subject to, of course, the approval of Judge Beesley. But
`
`3 as between the parties it would be binding now and I would
`
`4 enforce that if necessary."
`
`5
`
`6
`
`7
`
`And Ms. Meiling answers, "Yes.
`
`"All right. Do you have any questions?
`
`"Yes. When you related to the release -- yes -- I
`
`8 would like the release to include whatever new name we may use.
`
`9
`
`10
`
`11
`
`12
`
`"Any what?
`
`"The new name for the company.
`
`"Of course.
`
`"Thank you. We want that -- this to be as broad as
`
`13 possible. Thank you, Your Honor.
`
`14
`
`"That's what I said in the -- that's why I said 'any
`
`15 entities.'
`
`16
`
`17
`
`"Thank you."
`
`Dean Meiling is then sworn -- or Dean Meiling is then
`
`18 questioned. He has previously been sworn.
`
`19
`
`"Mr. Meiling, you heard the terms of the agreement
`
`20 that were placed on the record.
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"Yes.
`
`"Did you understand those terms?
`
`"I did.
`
`"Do you agree to be bound by those terms?
`
`"I do.
`
` ACCESS TRANSCRIPTS, LLC 1-855-USE-ACCESS (873-2223)
`
`

`

`13
`
`1
`
`"Do you have -- you -- do you have also -- do you
`
`2 also have the authority to act on behalf of Metalast Surface
`
`3 Technologies, LLC?
`
`4
`
`5
`
`"Yes, I do.
`
`"And do you agree that Metalast Surface Technologies,
`
`6 LLC will be bound by the terms of these agreement?
`
`7
`
`8
`
`"Yes.
`
`"And you also heard the Court, me, say that I would
`
`9 enforce the terms of this agreement because I consider it to
`
`10 binding as of this time?"
`
`11
`
`12
`
`13
`
`14
`
`Mr. Meiling answers yes.
`
`"Okay. Do you have any questions for me?"
`
`Mr. Meiling says no.
`
`Mr. Burns, who was one of the counsel for the Semas's
`
`15 as I understand it:
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"Our concern, Your Honor, as to Mrs. Meiling's
`
`clarification, we want to make sure that there's no
`
`confusion in the marketplace and that the new mark
`
`that you adopt the new name is