Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1149233
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`Filing date:
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`07/27/2021
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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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`92074292
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`Party
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`Correspondence
`Address
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`Plaintiff
`T Butler Brown
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`LOUIS F TERAN
`SLC LAW GROUP
`1055 EAST COLORADO BLVD, SUITE #500
`PASADENA, CA 91106
`UNITED STATES
`Primary Email: lteran@strategiclegalcounseling.com
`818-484-3217 x200
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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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`Motion to Extend
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`Louis F. Teran
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`lteran@strategiclegalcounseling.com
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`/Louis F. Teran/
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`07/27/2021
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`Attachments
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`PETITIONER - Motion to Dismiss or Suspend - Memo.pdf(133651 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Registration No: 4,969,251
`Mark:
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`TURTLEY
`Registration Date: May 31, 2016
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`__________________________________________
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`T. BUTLER BROWN, )
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`Petitioner,
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` ) CANCELLATION NO: 92074292
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`v.
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`GOING VENTURES, LLC., )
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`Registrant.
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`_________________________________________)
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`PETITIONER’S MOTION FOR VOLUNTARY DISMISSAL WITHOUT
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`PREJUDICE, OR, IN THE ALTERNATIVE, FOR SUSPENSION OR
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`CONTINUANCE OF CURRENT SCHEDULE
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`Petitioner T. Butler Brown (“Petitioner”) hereby submits this motion against
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`Registrant Going Ventures, LLC (“Registrant”).
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`I.
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`INTRODUCTION
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`In December 2019, Petitioner filed an intent-to-use application for the mark
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`“TURTLEY VEGAN” for use in connection with cook books under Serial No.
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`88729906. In March 2020, an office action was issued in Petitioner’s application
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`refusing registration based on Registrant’s trademark registration for the mark
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`“TURTLEY” for use in connection with cook books. Thus, May 2020, Petitioner
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`initiated this cancellation proceeding.
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`However, before Petitioner engaged in her cook book project, she was involved in
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`a serious automobile accident that caused her serious personal injuries for which
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`Petitioner underwent medical treatment and rehabilitation for about a year. Since the
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`filing of her trademark application and this proceeding, Petitioner’s cook book project
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`has faced challenges due to the COVID-19 global pandemic and substantial set backs in
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`Petitioner’s health. In fact, on June 30, 2021, Petitioner was required to undergo an
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`unanticipated surgery due to deterioration of her health. Petitioner is now undergoing
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`physical therapy that is expected to last several months and that is expected to consume
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`most of Petitioner’s time and resources. Therefore, Petitioner has been forced to cease
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`work on her cook book project for an undetermined period of time but at least until her
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`physical therapy is completed and her health improves. In fact, since filing her ITU
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`application and initiating this proceeding, Petitioner has not yet used the “TURTLEY
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`VEGAN” mark in commerce as a trademark.
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`Accordingly, Petitioner now wishes to dismiss this proceeding without prejudice
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`so that Petitioner can focus on her physical therapy and health for the foreseeable future.
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`In the alternative, Petitioner wishes to suspend this proceeding or extend the pending
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`deadlines by at least 150 days from the decision of this Request. Under the current
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`unforeseen circumstances of Petitioner’s health, Petitioner is currently unable to devote
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`any time or resources to this proceeding.
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`II.
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`ARGUMENT
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`A.
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`Voluntary Dismissal Without Prejudice is Proper
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`Fed.R.Civ.P. 41(a)(2) expressly states as follows:
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`“Except as provided in Rule 41(a)(1), an action may be dismissed at the
`plaintiff’s request only be court order, on terms that the court renders proper.”
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`Dismissal pursuant to Rule 41(a)(2) is within the court’s discretion and is
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`generally allowed unless “the defendant will suffer some plain legal prejudice other than
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`the mere prospect of a second lawsuit.” See Hyde v. Hoffmann-La Roche, Inc., 511 F.3d
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`506, 509 (5th Cir. 2007). “[M]otions for voluntary dismissal should be freely granted
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`unless the non-moving party will suffer some plain legal prejudice . . .” See Elbaor v.
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`Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). “That [the] plaintiff may obtain
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`some tactical advantage over the defendant in future litigation is not ordinarily a bar to
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`dismissal.” See Hyde, 511 F.3d at 509.
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`In the present case, Petitioner seeks a dismissal of this proceeding as a direct result
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`of her deteriorating health and recent surgery that she underwent on June 30, 2021, which
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`will require months of physical therapy. In addition, Petitioner seeks dismissal of this
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`proceeding as a direct result of the fact that she has not been able to get her cook book
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`business under the “TURTLEY VEGAN” mark off the ground and is now being forced to
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`cease spending her time and resources to such effort for an undetermined period of time.
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`After all, Petitioner has not yet used the “TURTELY VEGAN” mark in commerce as a
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`trademark.
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`Essentially, Petitioner does not seek to voluntarily dismiss this proceeding for an
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`improper purpose, cause undue delay, or avoid an adverse ruling. Even more, a voluntary
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`dismissal of this proceeding will not cause Registrant any plain legal prejudice. As such,
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`dismissal of this proceeding without prejudice is proper.
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`Based on the foregoing, Petitioner respectfully requests this proceeding be
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`dismissed without prejudice.
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`B.
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`Alternatively, Suspension or Continuance of Proceeding Deadlines is
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`Proper
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`In the alternative, if the Board does not dismiss this proceeding without prejudice,
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`Petitioner respectfully request the pending deadlines in this Proceeding be suspended or
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`continued by at least 150 days from the decision on this Motion. Such continuance will
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`allow Petitioner some time to focus on her health before resuming use of her time and
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`resources in this proceeding. Such time to focus on her health is necessary at the present
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`time in light of Petitioner’s unanticipated surgery on June 30, 2021 for which she is now
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`required to devote several months in physical therapy. Given Petitioner’s current health
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`3
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`condition and the current state of her cook book business, Petitioner is unable to devote a
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`proper amount of time and resources to this proceeding at the present time based on the
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`current trial schedule.
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`Based on the foregoing, if the Board decides not to dismiss this proceeding
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`without prejudice, Petitioner respectfully requests the Board to suspend or continue this
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`proceeding by at least 150 days from the date a decision on this Motion is entered.
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`III. CONCLUSION
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`Based on the foregoing, Petitioner respectfully requests this Board to dismiss this
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`proceeding without prejudice. In the alternative, Petitioner respectfully requests this
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`Board to suspend or continue this proceeding by at least 150 days from the date a
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`decision on this Motion is entered.
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`DATED: July 26, 2021 Respectfully submitted,
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`___________________________
`Louis F. Teran
`Attorney for Petitioner
`T. Butler Brown
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`Louis F. Teran
`SLC LAW GROUP
`1055 East Colorado Blvd., Suite #500
`Pasadena, CA 91106
`Telephone:
`(818) 484-3217 x200
`Facsimile:
`(866) 665-8877
`lteran@strategiclegalcounseling.com
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` CERTIFICATION OF SERVICE
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`I certify that a copy of this PETITIONER’S MOTION FOR VOLUNTARY
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`DISMISSAL WITHOUT PREJUDICE, OR, IN THE ALTERNATIVE, FOR
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`SUSPENSION OR CONTINUANCE OF CURRENT SCHEDULE is being served via
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`email and USPS on this the 27th day of July, 2021, to the following:
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`Applicant’s Attorney of Record:
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`___________________________
`Louis F. Teran
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`Obiageli Ezenduka, Esq.
`244 5th Avenue
`Suite F271
`New York, NY 10001
`oezenduka@ollislaw.com
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`5
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