Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA Tracking number:
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`ESTTA1020525
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`Filing date:
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`12/05/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92072279
`Defendant
`Luoyang Hangyuan E-commerce Co., Ltd.
`
`ÂL
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`UOYANG HANGYUAN E-COMMERCE CO LTD
`301Â WESTÂ ST 13F E-BUSINESSÂ PARK BAOLONG,
`LUOLONGÂ DISTRICT
`LUOYANG, 471000
`CHINA
`2851218765@qq.com
`+8615825757150
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's email
`Signature
`Date
`Attachments
`
`Other Motions/Papers
`Francis Koh
`fkohmail@gmail.com, TMProce@scienbizip.com, ecptm@scienbizip.com
`/Francis Koh/
`12/05/2019
`Haircube - Request to Set Aside Default.pdf(182020 bytes )
`Haircube - Memorandum of Law In Support.pdf(298884 bytes )
`Affidavit Statement.pdf(129516 bytes )
`
`
`ESTTA Tracking number:
`
`ESTTA1020525
`
`Filing date:
`
`12/05/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92072279
`Defendant
`Luoyang Hangyuan E-commerce Co., Ltd.
`
`ÂL
`
`UOYANG HANGYUAN E-COMMERCE CO LTD
`301Â WESTÂ ST 13F E-BUSINESSÂ PARK BAOLONG,
`LUOLONGÂ DISTRICT
`LUOYANG, 471000
`CHINA
`2851218765@qq.com
`+8615825757150
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's email
`Signature
`Date
`Attachments
`
`Other Motions/Papers
`Francis Koh
`fkohmail@gmail.com, TMProce@scienbizip.com, ecptm@scienbizip.com
`/Francis Koh/
`12/05/2019
`Haircube - Request to Set Aside Default.pdf(182020 bytes )
`Haircube - Memorandum of Law In Support.pdf(298884 bytes )
`Affidavit Statement.pdf(129516 bytes )
`
`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL
`
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`_____________________________________
`NIR RON,
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`
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`}
`Cancellation No. 92072279
`}
`
`}
`
`}
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`}
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`}
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`}
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`}
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`}
`}
`}
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`LUOY HANGYUAN E-COMMERCE CO.,
`LTD.
`
`
` REGISTRANT
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`RESPONSE TO NOTICE OF DEFAULT AND REQUEST FOR LEAVE TO
`LATE FILE ANSWER TO CANCELLATION PETITION
`
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`Registrant by and through the undersigned counsel, hereby files this Response to Notice of
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`Default and Request for Leave to Late File Answer to Consolidated Petition for Cancellation and
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`states the following:
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`1. Registrant hereby incorporates by reference and restates here in its entirety, the
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`Memorandum of Law In Support of Response to Notice of Default And Request for
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`Leave to Late File Answer to Consolidated Petition for Cancellation.
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`2. Registrant satisfies the requirements of showing good cause and granting Registrant’s
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`request will not prejudice the Petitioner and is in the best interest of justice.
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`
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`WHEREFORE, Registrant respectfully requests that the Default be set aside and the late filed
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`answer be entered.
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`R e s p e c t f u l l y S u b m i t t e d ,
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`1
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` }
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` PETITIONER,
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`v.
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`
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`Dated: November 5th, 2019
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`By:
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`________/s/____________________
`
`
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`
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`Francis H. Koh
`
`Koh Law Firm, LLC.
`4800 Hampden Lane, Suite 200
`Bethesda, MD 20814
`(301) 881-3600
`fkohmail@gmail.com
`
`Counsel for Registrant
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 5th day of November 2019 a true and correct copy the
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`foregoing was delivered by electronic email upon:
`
`
`
`Adriano Pacifici
`Intellectual Property Consulting, L.L.C.
`334 Carondelet Street, Suite B
`New Orleans, LA 70130
`T: (504) 323-6600
`E-mail: apacifici@iplawconsulting.com
`Attorney for Petitioner, Nir Ron dba H3 Hair Cubed
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`By:
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`__/Francis Koh/__________________
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`Francis H. Koh
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`2
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`_____________________________________
`NIR RON,
`
`
`
`}
`Cancellation No. 92072279
`}
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`}
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`}
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`}
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`}
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`}
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`}
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`}
`}
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` }
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`LUOY HANGYUAN E-COMMERCE CO.,
`LTD.
`
` REGISTRANT
`
`
`
`
`
`
`MEMORANDUM OF LAW IN SUPPORT OF REGISTRANT’S RESPONSE TO
`NOTICE OF DEFAULT AND REQUEST FOR LEAVE TO LATE FILE
`ANSWER TO PETITION FOR CANCELLATION
`
`
`
`Registrant by and through the undersigned counsel, hereby files this Memorandum of Law in
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`Support of Registrant’s Response to Notice of Default and Request for Leave to Late File
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`Answer to Petition for Cancellation and states the following:
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`FACTUAL BACKGROUND
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`1. Registrant was first to file his HAIRCUBE trademark applications on November 5th,
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`2018 for classes 3 and 5 and was deemed proper by the USPTO for registration -
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`nos.5780133, and 5774901, registered June 18, 2019 and June 11, 2019 respectively.
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`2. Petitioner on the other hand received, filed his application on May 24, 2019, S/N
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`88446156 and received a 2(d) refusal due to Registrant’s marks.
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`3. Registrant first learned of the Petition for Cancellation on October 30th, 2019 from the
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`USPTO, but the deadline of September 16, 2019 for filing an answer had already passed.
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`See Attached Declaration/Affidavit.
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`
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`1
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` }
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` PETITIONER,
`
`
`
`v.
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`
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`STANDARD OF REVIEW
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`
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`SHOWING OF GOOD CAUSE
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`4. Determinations for setting aside a notice of default are made pursuant to Fed. R. Civ. P.
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`55, which sets forth three factors: 1. Whether the [Petitioner] will be prejudiced; 2.
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`Whether the default was willful; and 3. Whether the [Registrant] has a meritorious
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`defense to the action. Djeredjian v. Kashi Co., 21 USPQ2d 1613, 1615 (TTAB 1991).
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`5. Noteworthy, the considerations for setting aside a default, which is to a show cause why a
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`default judgment should not be entered, is considered more leniently than a motion to
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`seek relief from an entered default judgment. In other words, Rule 55(c) uses the “good
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`cause standard for relief before judgment has been entered, while Rule 60(b) allows for
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`relief after a judgment has been entered, and thus, “the good cause” standard in Rule
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`55(c) must be easier to satisfy. See Judson Atkins Candies, Inc. v. Latini-Hohberger
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`Dhimantec, 529 F.3d 371, 385-86 (7th Cir. 2008) (where district court sua sponte set
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`aside a default judgment).
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`6. Defaults may be set aside for “good cause” for instance where the damages are
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`disproportionate to the wrong affording good cause for judicial action even when there is
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`no good excuse for the [Registrant’s] inattention to the case. See id.
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`7. This analysis is one equity, and the Trademark Trial and Appeal Board recently set aside
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`a default judgment where a party failed to file a timely answer in response to a petition to
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`cancel, finding even though the TTAB found the respondent clearly negligent, he was not
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`willful in his negligence and the Petitioner could not establish prejudice. L-Nutra v.
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`Marshall Nutraceuticals Pty Ltd., Cancellation No. 92067874 (TTAB 2018).
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`2
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`ARGUMENTS
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`
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`Registrant SATISFIES THE GOOD CAUSE STANDARD UNDER RULE 55(C)
`As THE Petitioner IS NOT PREJUDICED, THE DELAY WAS NOT WILLFUL,
`AND FINALY, THE Registrant HAS A MERITORIOUS DEFENSE TO THE
`OPPOSITION.
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`
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`8. In the present case, only a notice of default was issued and is currently pending
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`Registrant’s Response, who has timely filed this response and answer to the Cancellation.
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`9. Hence, the review of showing good cause in this matter should be more lenient than for
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`setting aside a default judgment.
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`10. The Petitioner will not be prejudiced as the default has yet to be reduced to a judgment.
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`11. A short delay caused by untimely answer filing before entry of a judgment would not
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`prejudice the Petitioner. See, e.g., Pumpkin Ltd. v. Seed Corps, 43 USPQ2d 1582, 1587
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`(TTAB 1997).
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`12. The delay was not willful, as Registrant only learned of the Cancellation Petition on
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`October 30th, 2019. See Attached Declaration/Affidavit.
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`13. Registrant has a meritorious defense as shown by his Answer (herein incorporated by
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`reference, restated and realleged in its entirety), which shows Registrant to be the first to
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`file with the USPTO and received registration. See DeLorme Publ’g Co v. Eartha’s Inc.,
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`60 USPQ2d 1222, 1224 (TTAB 2000) (all that is necessary to establish a meritorious
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`defense are plausible responses to the allegations in the petition).
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`14. Registrant satisfies the requirements of showing good cause under Rule 55(C) and
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`granting Registrant’s motion will not prejudice the Petitioner and is in the best interest of
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`justice.
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`3
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`WHEREFORE, Plaintiff respectfully requests that the Default be set aside and the late filed
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`answer be entered.
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` R e s p e c t f u l l y S u b m i t t e d ,
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`Dated: November 5th, 2019 By: ________/s/____________________
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`Francis H. Koh
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`Koh Law Firm, LLC.
`4800 Hampden Lane, Suite 200
`Bethesda, MD 20814
`(301) 881-3600
`
`Attorney for Registrant
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 5th day of November 2019 a true and correct copy the
`
`foregoing was delivered by electronic email upon:
`
`Adriano Pacifici
`Intellectual Property Consulting, L.L.C.
`334 Carondelet Street, Suite B
`New Orleans, LA 70130
`T: (504) 323-6600
`E-mail: apacifici@iplawconsulting.com
`Attorney for Petitioner, Nir Ron dba H3 Hair Cubed
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`By:
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`__/Francis Koh/__________________
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`Francis H. Koh
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`4
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
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`U.S. Cancellation No.: 92072279
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`Mark: HAIRCUBE in standard characters
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`Owner: Luoyang Hangyuan E-commerce Co.,Ltd.
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`Class：03; 05
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`Good / Service:
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`IC 003. Colognes, perfumes and cosmetics; Cosmetic hand creams; Cosmetic oils;
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`Cosmetic preparations for body care; Cosmetic suntan lotions; Cosmetics; Face creams
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`for cosmetic use; Facial masks; Lip stains; Lipstick; Make-up removing lotions; Nail
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`paint; Nail polish remover pens; Pre-moistened cosmetic wipes; Cleansing creams;
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`Cosmetic creams for skin care; Cosmetic preparations for protecting the skin from the
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`sun's rays; Cosmetic preparations for removing gel nails, acrylic nails, and nail polish;
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`Cosmetic products in the form of aerosols for skincare; Cosmetics for children. FIRST
`USE: 20180901. FIRST USE IN COMMERCE: 20180901
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`IC 005. Aerosol dispensers for medical use sold filled with hair growth stimulants;
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`Analgesics; Anti-inflammatories; Cytostatics for medical purposes; Hair growth
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`stimulants; Human growth hormone; Medical plasters; Medicated hair care
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`preparations; Medicated hair serums; Medicated skin soap; Medicinal herbs; Medicinal
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`oils; Medicinal preparations for stimulating hair growth; Sterilizing preparations;
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`Sticking plasters for medical use; Dietetic foods adapted for medical purposes;
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`Medicated balms for treatment of hair; Medicated lotions for hair; Medicated serums
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`for treatment of hair; Medicinal hair growth preparations. FIRST USE: 20180901.
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`FIRST USE IN COMMERCE: 20180901
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`VERIFICATION DECLARATION
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`
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`I, Liu Yanan , declare:
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`1. I am Principal of Luoyang Hangyuan E-commerce Co.,Ltd., the Registrant
`in this case, and am familiar with its business and records. I did not receive any
`notifications of cancelation of the above-mentioned TMs from USPTO until October
`30, 2019. While receiving the paper documents of Petition for Cancellation, I found I
`failed to meet the deadline of Answer on September 16, 2019. Registrant thanks the
`Examining Attorney for her more than helpful Notice of Default dated November 05,
`2019, in which Registrant was allowed another thirty days for Answer. Registrant
`respectfully requests that the proceedings resume and all dates be reset.
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`2. The signatory being warned that willful false statements and the like are punishable
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`by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false
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`statements and the like may jeopardize the validity of this submission, declares that the
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`facts set forth above are true; all statements made of his/her own knowledge are true;
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`and that all statements made on information and belief are believed to be true.
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`Luoyang Hangyuan E-commerce Co. Ltd.
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`
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`Dated: December 05 ,2019 By: /Liu Yanan/
` Name: Liu Yanan
` Position: Principal
`
`
`
`
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