Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA950532
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`Filing date:
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`01/28/2019
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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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`92069932
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`Party
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`Correspondence
`Address
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`Defendant
`AGPCH, S.A. de C.V.
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`JOHN M MURPHY
`AROCHI MARROQUIN & LINDNER SC
`BUILIDING C1-56YI, 5802 BOB BULLOCK LOOP 20
`LAREDO, VA 78041
`UNITED STATES
`jmurphy@aml.com.mx
`011-52-55-5095-2031
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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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`Reply in Support of Motion
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`Joseph R. Englander
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`jenglander@fowler-white.com, ptomail@fowler-white.com
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`/joseph r. englander/
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`01/28/2019
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`Attachments
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`TTAB Reply .pdf(4273327 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
`In the Matter of Registrations: 5,358,496; 5,358,500; 5,358,499; 5,358,498
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`AGPCH, S.A. de C.V.
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`Owner:
`March 1, 2017
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`Filing Date:
`December 19, 2017
`Registration Date:
`Mezcal
`Goods:
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`International Class: 033
`Priority Date:
`February 23, 2017
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`__________________________________________
`Macias Advertising, LLC
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`Petitioner,
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`v.
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`AGPCH, S.A. de C.V.,
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`Respondent.
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`__________________________________________)
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`Cancellation No. 92069932
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`RESPONDENT'S REPLY TO PETITIONER'S RESPONSE TO RESPONDENT'S
`MOTION TO DISMISS CONSOLIDATED PETITION FOR CANCELLATION WITH
`PREJUDICE OR IN THE ALTERNATIVE MOTION TO STAY PROCEEDINGS
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`Respondent, AGPCH, S.A. de C.V. ("Respondent"), through its undersigned attorneys,
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`Fowler White Burnett, P.A., hereby files its Reply to Petitioner, Macias Advertising, LLC's
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`Response (the "Response") to Respondent's Motion to Dismiss Petitioner's Consolidated Petition
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`for Cancellation with Prejudice or in the Alternative Motion to Stay Proceedings (the "Motion")
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`filed on January 8, 2019 and in support thereof states as follows:
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`I.
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`PETITIONER'S STATED CLAIMS FOR COPYRIGHT INFRINGEMENT SHOW
`INSUFFICIENT REAL INTEREST IN THE OUTCOME OF THIS PROCEEDING.
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`The Federal Circuit has established a "liberal threshold for determining standing". Alpha
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`Kitty/Boss Pussycat International v. Big Momma Holdings, LLC, 2011 WL 113506 *3 (TTAB
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`

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`2011). However, even under a liberal threshold, a proper showing must be made. Petitioner must
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`plead and later prove:
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`(1) a 'real interest' in the outcome of the proceeding, and (2) a 'reasonable basis' for its
`belief that it would suffer some kind of damage by the continued registration of the mark.
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`Flanders v. Demarzio, 2017 WL 3718339 *2 (TTAB 2017). However, a showing of sufficient
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`real interest requires Petitioner to plead "a 'direct and personal stake' in the outcome of the
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`proceeding, wherein a favorable decision will likely redress the harm". Id. at *3 (emphasis added).
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`The “real interest” requirement stems from "a policy of preventing 'mere intermeddlers'
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`who do not raise a real controversy from bringing oppositions or cancellation proceedings in the
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`PTO." Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed. Cir. 1999). In fact, Petitioner's claims do not
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`raise a real interest because a favorable decision by the Board will not redress the alleged harm.
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`The only reason for the Board to consider this matter in general and the alleged agreement
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`specifically is that it refers to the transfer of ownership of works of authorship from the Petitioner
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`to the Respondent. Thus, Petitioner's claim applies to any and all exploitation of the works of
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`authorship, whether or not Respondent's goods are identified with them. The entirety of Petitioner's
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`claims are currently being addressed in a pending federal lawsuit.
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`A Board decision in Petitioner's favor would only address trademark-related rights in the
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`works of authorship. Petitioner confirms that its alleged damages stem from copyright law, rather
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`than trademark law, in its Response. Response pp. 4-5. In fact, Respondent's claim of all rights in
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`the works of authorship is currently disputed before the United States District Court for the
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`Southern District of Florida Miami Division Macias Advertising, LLC v. Para Todo Mal Mezcal,
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`LLC, et. al, Case No. 1:18-cv-23631-UU ("Macias").
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`Petitioner has expressly admitted that "any use of the works of authorship … [by
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`Respondent] would be considered an act of copyright infringement." Macias Amended Complaint
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`2
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`¶72 (emphasis added). Apparently "any use" is also the basis for proceedings before this Board.
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`Petition ¶18. Petitioner's statement in the Amended Complaint alone acts as an admission that this
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`proceeding is superfluous. Respondent currently contests Petitioner's claim and the alleged harm
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`in Macias. Issues including the alleged agreement and the ownership, validity and enforceability
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`of the alleged copyrights and the validity of any claims of alleged harm are presently being
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`properly litigated there.
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`While Petitioner claims that Respondent "stealthily inserts a fictitious 'copyright
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`infringement' argument", Response p. 5, Respondent expressly confirms herein that Petitioner's
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`alleged claims specifically sound in copyright and breach of contract. Petitioner claims rights in
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`its "works of authorship" Petition ¶4. A "work of authorship" is a work in which copyright
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`protection subsists under the Copyright Act. See 17 U.S.C. 102(a). "Work of authorship" is not
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`defined or referenced in the Trademark Act. In fact, the Trademark Act only includes the terms
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`"authorship" with reference to false claims of authorship. 15 U.S.C. §1125. Authorship is irrelevant
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`to the issue of trademark registrability, but even if it were considered distantly relevant, the Board
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`is "not required to accept as true legal conclusions or unwarranted factual inferences" such as rights
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`of ownership to works of authorship. NSM Resources Corp. v. Microsoft, 2014 WL 7206403
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`(TTAB 2014), quoting In re Bill of Lading Transmission and Processing System Patent Litig., 681
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`F.3d 1323 (Fed. Cir. 2012).
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`Thus, the entire issue regarding the alleged transfer or failure to transfer the rights in the
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`works of authorship is based upon an alleged breach of an agreement attached as Exhibit A to the
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`Petition, which is silent as to trademark rights. In fact, it is logical that there would be no need to
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`address trademark rights in the alleged agreement regarding works of authorship, because the
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`businesses of the two parties are so dissimilar.
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`3
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`Since Petitioner's copyright claims stem from the exact same actions as those which form
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`the basis for standing in this proceeding, the Board should find Petitioner has no real interest in
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`these proceedings.
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`II.
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`THIS IS A BREACH OF CONTRACT CASE.
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`This matter at its heart is a breach of contract case. "The Board has no jurisdiction to
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`consider a breach of contract claim, per se." Wallyball International, Inc. v. Garcia, 2003 WL
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`22273100 (TTAB 2003); cf., M-5 Steel Mfg., Inc. v. O'Hagin's Inc., 2001 WL 1167788 (TTAB
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`2001) (holding review of prior settlement agreement between the parties to consider contractual
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`estoppel reviewable).
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`Petitioner claims that it is "not seeking determination by the Board with respect to any
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`breach of contract or copyright infringements." Response p. 9. However, Petitioner may not have
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`its cake and eat it, too. Petitioner's allegations belie its desires.
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`Petitioner claims ownership of all rights to the works of authorship under the alleged
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`agreement, that it could only have if the alleged agreement has been breached. See Response p.
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`13. Any claim Petitioner might have is tied to issues such as the performance, execution and
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`excuses to performance in the alleged agreement. Petitioner has baldly alleged that payment has
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`not been made. Petition ¶¶ 7 and 9. It would be impossible to determine the alleged rights claimed
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`by Petitioner to the works of authorship without fully determining each party's obligations and
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`execution of its obligations under the contract. This is not a case where, for example, a settlement
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`agreement is reviewed to see if disputed marks are contained in them. See M-5 Steel Mfg., Inc. v.
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`O'Hagin's Inc., 2001 WL 1167788 (TTAB 2001) (holding prior settlement agreement did not
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`exempt an opposition to registration in its terms).
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`4
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`Moreover, payment may still be shown or it may have been excused. There may be
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`substantial performance or a force majeure clause may have been activated. Petitioner may have
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`licensed the works of authorship to Respondent regardless of payment. All of these issues are
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`currently being litigated in Macias.
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`In the Response, Petitioner makes much out of allegations that Respondent is using the
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`"exact" work of authorship. See Response pp. 4-6 and 13. However, in Macias Respondent rightly
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`contests Petitioner's position regarding payment and the ownership of the works of authorship. See
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`Answer and Counterclaim to the Amended Complaint in Macias at ¶¶ 78, 165, 173, 178, 179, 181-
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`183 and 186, attached as Exhibit "A". Thus, under Respondent's position in Macias, Respondent
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`is well within its rights to use the exact works of authorship, and Petitioner is in fact interfering
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`with Respondent's rights.
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`Despite Petitioner's contentions, the issue is not a matter of interpreting trademark-related
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`terms in the alleged agreement. Whether or not Petitioner desires it, to determine the parties' rights
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`to the marks, the Board must interpret the alleged agreement, determine its enforceability and rule
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`on whether or not it is enforceable and has been breached. The contract matter is currently properly
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`before the federal court and should be dismissed before the Board.
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` Respondent allows that "agreements to cease using a mark or to not use a mark in a certain
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`format are routinely upheld and enforced." M-5 at *10, quoting Vaugn Russell Candy Co. v.
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`Cookies in Bloom, Inc., 1998 WL 493131 n.6 (TTAB 1998). However, the alleged agreement
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`does not address trademark use at all. The Petition and the Response fail to allege any likelihood
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`of confusion with the Respondent or registrability of the trademark as a trademark. Instead, the
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`Petition leans upon its breach of contract and copyright claims to bootstrap a trademark claim
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`before this Board.
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`5
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`Having this breach of contract action before both the federal court and the Board is a waste
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`of Respondent's and the public's resources. Without a real interest in a final disposition from the
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`Board, Petitioner is the embodiment of a "mere intermeddler" and should not be permitted to bring
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`its copyright and breach of contract claims before this Board.
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`III.
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`PETITIONER'S CASES ALL TOUCH UPON PETITIONER'S PRIOR USE
`WHICH DOES NOT APPLY TO THE PRESENT CASE.
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`Petitioner cites cases that touch upon copyrights but do not apply to the case at hand. For
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`example, in Nahshin v. Prod. Source Int'l, LLC, 2013 WL 6040375 (TTAB 2013), Nahshin
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`specifically alleged he had trademark use prior to the registrant, thereby properly alleging Nahshin
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`was the owner of the mark. Id. at *1.
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`Also, Petitioner's reliance upon Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d
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`501 (CCPA 1972), is misplaced. In Knickerbocker, the petitioner was allowed the opportunity to
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`establish superior rights over a subsequent trademark user of a term by relying upon the "the
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`copyrighted appearance of its goods". Id. at 508 (emphasis added). Here, Petitioner does not allege
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`any use of the works of authorship on any goods. Therefore, Petitioner can rely neither upon its
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`alleged copyrights nor Knickerbocker to establish superior rights.
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`Furthermore, Selva & Sons, Inc. v. Nina Footwear, Inc., 705 F.2d 1316 (Fed. Cir. 1983)
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`involves the determination of the issue of estoppel through the review of a settlement agreement
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`between the parties to conclude a prior opposition. Id. at 1323. A Board's review of a settlement
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`agreement for estoppel purposes is well established practice; it should not be compared to the
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`alleged agreement in the present case.
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`Respondent believes Doyle v. Al Johnsons Swedish Rest., 2012 WL 695211 (TTAB 2012),
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`where grounds for opposition were denied, is closer to the mark. Respondent Butik, Inc., held two
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`registrations for marks having goats on a roof. Id. at *1. The registrations were for restaurant
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`6
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`services and retail store and online retail store services. Id. Petitioner Doyle stated as grounds for
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`his petition for cancellation that
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`[m]any establishments … refrained from placing goats on their grass roofs, as a
`result of which Petitioner has been, and will continued (sic) to be, damaged in that
`Petitioner has been, and will continue to be, unable to satisfy his desire to take
`photographs of goats on grass roofs.
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`Id. The Board held
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`While respondent’s Registrations might prevent petitioner from using any
`photographs of goats on sod roofs as a service mark in connection with restaurant
`or gift shop services, or related services, petitioner has not alleged that he uses or
`wants to use the desired photographs in such a manner, or that he has any right to
`do so.
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`Id. at *3. The Board found Doyle had an insufficient real interest in the proceedings because he
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`"does not relate this alleged impairment of his asserted interest in taking such photographs to
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`respondent’s service mark in any manner." Id. at *2 (underline in the original). As stated above,
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`Petitioner similarly has an insufficient real interest.
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`IV. CONCLUSION.
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`WHEREFORE, Respondent requests that its motion be granted and that the Petition be
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`dismissed. Alternatively, this case should be stayed pending resolution of the federal lawsuit
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`Macias Advertising, LLC v. Para Todo Mal Mezcal, LLC, et. al, Case No. 1:18-cv-23631-UU.
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`Respectfully submitted,
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`AGPCH, S.A. de C.V.
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`By its attorneys,
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`/joseph r. englander/
`Joseph R. Englander
`Fowler White Burnett, P.A.
`1395 Brickell Avenue, 14th Floor
`Miami, Florida 33131
`Tel: (305) 789-9200
`Fax: (305) 728-7559
`Email: jenglander@fowler-white.com
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`7
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`I hereby certify that on January 28, 2019, this Reply to Petitioner's Response to
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`CERTIFICATE OF SERVICE
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`Respondent's Motion To Dismiss Petitioner's Consolidated Petition For Cancellation With
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`Prejudice Or In The Alternative Motion To Stay Proceedings was served on the Petitioner, Macias
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`Advertising, LLC, by delivering a true and correct copy thereof via email to:
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`Darlene Barron, Esq.
`Trueba & Suarez, PLLC
`9150 S. Dadeland Blvd., Suite 1008
`Miami, Florida 33156
`Email: trademarks@lex188.com
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`Counsel for Petitioner, Macias Advertising, LLC
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`/joseph r. englander/
`Joseph R. Englander
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`8
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`EXHIBIT "A"
`EXHIBIT "A"
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 1 of 59
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` UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`CASE NO.: 18-cv-23631-UNGARO/O’SULLIVAN
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`MACIAS ADVERTISING, LLC, a Florida
`limited liability company,
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`
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`Plaintiff,
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`v.
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`PARA TODO MAL MEZCAL, LLC, a Florida
`limited liability company, et al.,
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`Defendants.
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`Counter-Plaintiff,
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`Counter-Defendant,
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`PARA TODO MAL MEZCAL, LLC, a Florida
`limited liability company,
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`v.
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`MACIAS ADVERTISING, LLC, a Florida
`limited liability company,
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`and
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`ALEJANDRO MACIAS, individually,
`MARCOS MACIAS, individually,
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` and
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`Defendants.
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`
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`ANSWER AND AFFIRMATIVE DEFENSES
`TO AMENDED COMPLAINT AND COUNTERCLAIM
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`Defendants, Para Todo Mal Mezcal, LLC (“PTMM”), AGPCH S.A. de C.V. (“AGPCH”),
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`AGPCH Europa, S.L. (“AGPCH EU”), and Casa Armando Guillermo Prieto S.A. de C.V.
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`(“CAGP”) (collectively, “Defendants”), by and through their undersigned counsel, hereby respond
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`

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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 2 of 59
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`to the allegations of the Amended Complaint filed by Plaintiff, Macias Advertising, LLC ("Macias
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`Advertising") as follows:
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`Subject Matter of Suit
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`1.
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`Defendants admit that Macias Advertising has brought this action under the federal
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`Copyright Act, 17 U.S.C. § 501, as well as under the laws of the State of Florida, but deny that
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`Macias Advertising is entitled to any of the relief it seeks. Defendants are without knowledge
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`regarding Macias Advertising's allegations that any of its alleged works of authorship are protected
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`under the copyright laws and that it has any copyrights against Defendants. Defendants deny that
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`they have exploited Macias Advertising's copyrighted works and deny that they have failed to pay
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`Macias Advertising for its services and/or works.
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`2.
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`Defendants admit that Macias Advertising purports to state claims for breach of
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`contract under the laws of the State of Florida, but deny that they have breached any contractual
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`(or implied contractual) obligation to Macias Advertising, that they owe Macias Advertising any
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`money for the services it generally alleges to have provided, deny that any of the Defendants other
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`than PTMM requested Macias Advertising to provide services that it generally alleges to have
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`performed, and otherwise deny that Macias Advertising is entitled any relief. The only contract
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`that exists is the Agency Service Agreement between PTMM and Macias Advertising. There was
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`no implied contract between Macias Advertising and the non-PTMM Defendants.
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`The Parties
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`3.
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`4.
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`5.
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`6.
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`Defendants admit the allegations of Paragraph 3.
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`Defendants admit the allegations of Paragraph 4.
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`Defendants admit the allegations of Paragraph 5.
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`Defendants admit the allegations of Paragraph 6.
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`2
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`

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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 3 of 59
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`7.
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`The allegations of Paragraph 7, which relate to Inmobiliaria Chicharron de Cuche
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`S.A. de C.V. ("ICDC"), are moot in light of Macias Advertising's Notice of Voluntary Dismissal
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`(DE 28) and, therefore, do not require a response.
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`8.
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`The allegations of Paragraph 8, which relate to Fundacion El Agave y Nosotros
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`S.A. de C.V. ("FEAYN"), are moot in light of Macias Advertising's Notice of Voluntary Dismissal
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`(DE 28) and, therefore, do not require a response.
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`9.
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`The allegations of Paragraph 9, which relate to Fundacion Don Antonio Rivera
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`Venegas S.A. de C.V. ("FDARV"), are moot in light of Macias Advertising's Notice of Voluntary
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`Dismissal (DE 28) and, therefore, do not require a response.
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`10.
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`Defendants admit the allegations of Paragraph 10.
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`11.
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`The allegations of Paragraph 11, which relate to Cocasenelrefri, Inc. ("COCAS"),
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`are moot in light of Macias Advertising's Notice of Voluntary Dismissal (DE 28) and, therefore,
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`do not require a response.
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`Jurisdiction and Venue
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`12.
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`Defendants admit that this Court has subject matter jurisdiction under 28 U.S.C.
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`§ 1331 because the claims asserted by Macias Advertising arise under the Copyright Act, 17
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`U.S.C. §§ 101, et. seq., but deny that Macias Advertising is entitled to any relief under the
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`Copyright Act.
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`13.
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`Defendants admit that this Court has personal jurisdiction over them. Defendants,
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`however, deny that the non-PTMM Defendants conducted business with Macias Advertising and
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`further deny that Defendants infringed on Macias Advertising’s copyrights or otherwise caused
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`harm to Macias Advertising.
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`14.
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`Defendants admit the allegations of Paragraph 14.
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`3
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`

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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 4 of 59
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`15.
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`Defendants admit that this Court has personal jurisdiction over CAGP. Defendants,
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`however, deny that CAGP has transacted business in the State of Florida, deny that CAGP has
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`U.S. distributors, and deny that CAGP has committed any tortious act in Florida or elsewhere.
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`16.
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`Defendants
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`admit
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`that
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`this Court has personal
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`jurisdiction over
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`AGPCH. Defendants, however, deny that AGPCH has transacted any business in the State of
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`Florida, that AGPCH has U.S. distributors in Florida, and that AGPCH has committed a tortious
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`act in Florida or elsewhere.
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`17.
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`Defendants admit that this Court has personal jurisdiction over AGPCH
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`EU. Defendants, however, deny that AGPCH EU has transacted business in Florida and deny
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`that AGPCH EU has committed a tortious act in Florida or elsewhere.
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`18.
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`Defendants admit that this Court has personal jurisdiction over them but deny that
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`PTMM, AGPCH, and AGPCH EU have been importing mezcal based products into the United
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`States through an import company based in this District.
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`19.
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`Defendants admit that venue is proper in the Southern District of Florida but deny
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`that AGPCH, AGPCH EU, or CAGP reside in this District.
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`Plaintiff’s Relationship with the Defendants
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`20.
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`Defendants are without knowledge regarding Macias Advertising's description and
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`extent of its business as well as the alleged experience of its principals. Defendants also are
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`without knowledge regarding Macias Advertising allegedly representing famous brands and,
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`therefore, deny the allegations of Paragraph 20.
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`21.
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`Defendants deny that Ms. Adriana Selene Estrada Vazquez ("Ms. Estrada") was in
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`2015 (or at any time before or after) the Chief Operating Officer for the unidentified group that
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`allegedly directly or indirectly owns PTMM and the other Defendants.
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`4
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`

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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 5 of 59
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`22.
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`Defendants admit the allegations of Paragraph 22 that Ms. Estrada had previously
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`worked with Macias Advertising. Defendants, however, are without knowledge regarding
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`Ms. Estrada's reasons or motivation for requesting Macias Advertising's services or the description
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`and extent of Macias Advertising's alleged multicultural resources and, therefore, deny the
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`allegations of Paragraph 22.
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`23.
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`Defendants are without knowledge regarding Ms. Estrada's pre-contract
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`discussions with and alleged expressed purpose of requesting Macias Advertising's services as
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`alleged in Paragraph 23 and, therefore, deny the allegations of Paragraph 23.
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`24.
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`Defendants admit that PTMM entered into an "Agency Service Agreement" with
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`Macias Advertising. The Agency Service Agreement PTMM had in its files, however, was signed
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`approximately six months after the signature date of December 22, 2015 appearing in the Agency
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`Services Agreement Macias Advertising attached as Exhibit A to the Complaint (and referred to
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`in the Amended Complaint as “Exhibit A”).
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`25.
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`Defendants admit that Paragraph 25 generally describes some of the services
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`included within the scope of the Agency Services Agreement.
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`26.
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`Defendants admit that Macias Advertising provided services to PTMM around the
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`time period alleged in Paragraph 26 and that PTMM paid for such services.
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`27.
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`Defendants admit that PTMM agreed to a monthly retainer of $45,000.00 to be paid
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`to Macias Advertising. Defendants, however, deny that the retainer amount excluded costs and
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`expenses. Defendants also deny that AGPCH, AGPCH EU, or CAGP were parties to the Agency
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`Services Agreement or otherwise agreed or were bound to pay Macias Advertising for the services
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`Macias Advertising provided to PTMM or at PTMM's request.
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`5
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 6 of 59
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`28.
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`Defendants admit that, pursuant to the Statement of Work attached to the Complaint
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`as Exhibit B (and referred to in the Amended Complaint as “Exhibit B”) with an effective date of
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`July 1, 2016, Ms. Estrada (ostensibly on behalf of PTMM) agreed to increase the budget for the
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`remaining part of the year (i.e., July 2016 to December 2016), by $200,000.00 in total (i.e., an
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`additional monthly retainer of $33,333.33 per month for the months of July 2016 to December
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`2016). Defendants, however, deny that AGPCH, AGPCH EU, or CAGP were parties to the
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`Statement of Work or agreed to or otherwise were bound to pay Macias Advertising for the services
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`Macias Advertising provided to PTMM or at PTMM's request under the Statement of Work.
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`29.
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`Defendants deny the allegations of Paragraph 29. Macias Advertising was
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`contractually obligated to provide PTMM monthly recaps setting forth a description of the work
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`Macias Advertising performed and the hours it dedicated to such work. In breach of the Agency
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`Service Agreement, however, Macias Advertising did not provide any monthly recaps for the
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`entire year of 2016. Macias Advertising did not begin to provide PTMM with monthly recaps
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`until May 2017. However, such reports did not provide much or any detail of Macias Advertising's
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`services and included duplicative, excessive, or otherwise non-compensable time.
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`30.
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`Defendants admit that Ms. Estrada (who had a conflict of interest during 2016 and
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`thereafter by serving her and Macias Advertising's interests and not those of PTMM) arranged to
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`have PTMM and AGPCH pay Macias Advertising's invoices without any detail of the purported
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`services. Defendants deny that AGPCH, AGPCH EU, or CAGP were obligated to pay Macias
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`Advertising for its services.
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`31.
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`Defendants deny the allegations of Paragraph 31.
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 7 of 59
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`32.
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`Defendants are without sufficient knowledge to respond to the allegations of
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`Paragraph 32 regarding the alleged praising of Macias Advertising's services and deliverables
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`during 2016 and, therefore, deny these allegations.
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`33.
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`Defendants deny the allegations of Paragraph 33 that Macias Advertising's efforts
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`exceeded their expectations. The services Macias Advertising provided were requested by and for
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`PTMM's benefit. Defendants are without knowledge regarding the remaining allegations of
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`Paragraph 33 regarding Macias Advertising receiving an award for its work and, therefore, deny
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`the allegations of Paragraph 33.
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`34.
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`Defendants are without sufficient knowledge regarding if and to what extent Macias
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`Advertising's services impacted or contributed to the marketability of the Zignum brands.
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`35.
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`Defendants deny the allegations of Paragraph 35 insofar as they suggest that Macias
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`Advertising's efforts account for the substantial increase of PTMM's or the other Defendants' fan
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`base on social media. Defendants are without sufficient knowledge to respond to the remaining
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`allegations of Paragraph 35 regarding the alleged increase in Defendants' fan base from about
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`8,000 to over 350,000 fans worldwide and, therefore, deny these allegations.
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`36.
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`Defendants are without sufficient knowledge to respond to the allegations regarding
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`if and how Macias Advertising's services impacted or contributed to Defendants' businesses,
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`market share, or sales growth and, therefore, deny these allegations.
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`37.
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`Defendants deny the allegations of Paragraph 37.
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`38.
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`Defendants are without sufficient knowledge to respond to the allegations of
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`Paragraph 38 and, therefore, deny the allegations.
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`39.
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`Defendants deny the allegations of Paragraph 39 to the extent they allege that
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`AGPCH, AGPCH EU, or CAGP requested any services from Macias Advertising.
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 8 of 59
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`40.
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`Defendants admit that Ms. Estrada (on behalf of PTMM) entered into the
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`referenced Appendix B / Addendum on or about July 1, 2016 and that the Statement of Work
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`included
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`therein memorialized
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`the expansion of Macias Advertising's services
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`for
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`PTMM. Defendants, however, deny the remaining allegations of Paragraph 40 that the expansion
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`of services were for any of the Defendants other than PTMM.
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`41.
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`Defendants deny the allegations that they requested Macias Advertising to allocate
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`the fees and costs related to its services among all of the Defendants. It appears, based upon the
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`documentation available, that Ms. Estrada and Macias Advertising agreed to an allocation of fees
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`and costs that would conceal the inflated fees and did not reflect the actual recipients or
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`beneficiaries of Macias Advertising's services.
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`42.
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`Defendants deny the allegations of Paragraph 42. The documentation available to
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`Defendants and the circumstances show that the allocation of fees and costs among all of the
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`Defendants had little to do with the services actually provided to any of the Defendants and more
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`to do with concealing Macias Advertising's inflated charges and fees.
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`43.
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`Defendants deny the allegations of Paragraph 43 to the extent they allege that
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`AGPCH, AGPCH EU, or CAGP requested services from Macias Advertising in 2017.
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`44.
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`Defendants deny the allegations of Paragraph 44 that a new Statement of Work for
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`2017 was agreed to by the parties. There is no Statement of Work for 2017 attached to the
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`Complaint, nor have Defendants identified any such Statement of Work in their files.
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`45.
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`Based upon their response to the allegations of Paragraph 44, Defendants deny the
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`allegations of Paragraph 45. Additionally, Defendants deny the reference to NOM to be a
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`brand. "NOM" is not a brand; it is a government protocol.
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 9 of 59
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`46.
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`Defendants deny the allegations of Paragraph 46 to the extent they suggest that
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`Macias Advertising provided any services other than to PTMM.
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`47.
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`Based upon their response to the allegations of Paragraph 44 and specifically, that
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`there was no 2017 Statement of Work, Defendants deny the allegations of Paragraph 47.
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`48.
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`Defendants deny the allegations of Paragraph 48 insofar as Ms. Estrada and
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`Mr. Oliveira are referred to as "the Defendants' designated corporate representatives." Defendants
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`also deny the allegations of Paragraph 48 to the extent they suggest that Ms. Estrada independently
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`reviewed and approved any of Macias Advertising's reports detailing its services and the time
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`expended. At that time, Ms. Estrada had a conflict of interest with PTMM and was acting for her
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`and Macias Advertising's benefit and not for the benefit of PTMM. Defendants are presently
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`without knowledge regarding the allegations of Paragraph 48 relating to Mr. Oliveira's review and
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`approval of Macias Advertising's reports, the services included therein, and the time allegedly
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`expended by Macias Advertising.
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`49.
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`Based upon their response to the allegations of Paragraph 48, Defendants deny the
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`allegations of Paragraph 49.
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`50.
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`Defendants deny the allegations of Paragraph 50. PTMM (and not AGPCH,
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`AGPCH EU, or CAGP) was obligated to and made the payments to Macias Advertising. Macias
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`Advertising knew that the payments it was receiving from PTMM, through Ms. Estrada, were
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`being made without independent consideration of the services that Macias Advertising actually
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`provided to PTMM and the time actually expended for such services. PTMM started questioning
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`Macias Advertising's invoices in May 2017.
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`Case 1:18-cv-23631-UU Document 41 Entered on FLSD Docket 12/18/2018 Page 10 of 59
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`51.
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`Defendants admit that, at the time PTMM started to question Macias Advertising's
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`services, there were two events Macias Advertising was sponsoring in the United States and
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`Germany for which Macias Advertising fronted the costs.
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`52.
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`Defendants deny that PTMM did not make any monthly retainer payments to
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`Macias Advertising for the months of August, September, and October 2017 but admit that PTMM
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`did not pay the full inflated $125,000.00 monthly retainer to Macias Advertising for the month of
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`August 2017 or thereafter. Defendants also admit that PTMM did not make any monthly retainer
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`payments to Macias Advertising for the months of November 2017 or thereafter. Defendants deny
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`that they were obligated to make any additional payments to Macias Advertising. Defendants also
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`deny the allegations of Paragraph 52 to the extent they suggest that AGPCH, AGPCH EU, or
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`CAGP were required to pay Macias Advertising for any of its services.
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`53.
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`Defendants deny the allegations of Paragraph 53 to the extent they suggest that
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`Macias Advertising continued to provide services to PTMM based upon Macias Advertising's
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`reliance on Ms. Estr