Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1099135
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`Filing date:
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`12/02/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`Party
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`Correspondence
`Address
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`92074745
`
`Defendant
`Pivot Inc.
`
`JULIE A TENNYSON
`PO BOX 9551
`PADUCAH, KY 42002
`UNITED STATES
`Primary Email: jtennyson@marcumtennyson.com
`270-534-5135
`
`Submission
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`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Motion to Dismiss - Rule 12(b)
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`Julie A. Tennyson
`
`jtennyson@marcumtennyson.com, jultenn6@yahoo.com
`
`/Julie A. Tennyson/
`
`12/02/2020
`
`Attachments
`
`Pivot renewed Motion to dismiss Final reduced.pdf(1648575 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`)
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`)
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`Pivot Brands, LLC,
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`Petitioner,
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`v.
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`Pivot Inc.,
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`Registrant.
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`United States Patent and Trademark Office
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`Trademark Trial and Appeal Board
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`P.O. Box 1451
`Alexandria, VA22313-1451
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`Opposition No. 92074745
`Registration No. 5266398
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`RENEWED MOTION TO DISMISS/RESPONSE TO MOTION TO AMEND PETITION
`FOR CANCELLATION
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`
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`Registrant Pivot Inc., d/b/a Pivot Brewing Company, moves to dismiss the claims
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`asserted against it in this proceeding with prejudice pursuant to Federal Rule of Civil Procedure
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`12(b)(6). In its First Petition, Petitioner made a single claim in support of cancellation of
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`Registrant’s registration of a mark for PIVOT®, alleging the mark was obtained as a result of
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`Registrant’s false statement that the mark was used in commerce, and Petitioner continues this
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`claim in its Amended Petition filed on November 18, 2020. Petitioner adds an additional claim
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`that Registrant has abandoned the mark. As established below, Petitioner’s claims are meritless.
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`Petitioner relies on allegations that are not entitled to the assumption of truth (Deyerberg v.
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`Holder, No. CIV.A.10-0671 (JDB), 2010 WL 2131834, at *1 (D.D.C. May 26, 2010), aff'd, 455
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`1
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`

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`F. App'x 1 (D.C. Cir. 2011)), and Petitioner fails to satisfy the federal pleading standard set forth
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`in Twombly and Iqbal.
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`FACTS
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`
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`For the purposes of this motion, the Board may disregard factual allegations of Petitioner
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`that are implausible. Deyerberg v. Holder, No. CIV.A.10-0671 (JDB), 2010 WL 2131834, at *1
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`(D.D.C. May 26, 2010), aff'd, 455 F. App'x 1 (D.C. Cir. 2011) (“[F]ederal courts are without
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`power to entertain claims otherwise within their jurisdiction if they are so attenuated and
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`unsubstantial as to be absolutely devoid of merit, wholly insubstantial, [or] obviously
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`frivolous.”). Additionally, the Board must assume that all of the Petitioner’s well-pleaded facts
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`are true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). However, “a court is ‘not bound to accept as
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`true a legal conclusion couched as a factual allegation.’” Acceptance Ins. Cos., Inc. v. United
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`States, 583 F.3d 849, 853 (Fed. Cir. 2009), cert. denied, 559 U.S. 1106 (2010) (citations omitted).
`
`Petitioner has alleged facts as follows:
`
`1.
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`Respondent is a corporation organized under the law of the Commonwealth of
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`Kentucky. (Amended Petition ¶ 2.)
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`2.
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`Respondent is the record owner of the registration of PIVOT® in International
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`Classes 032 and 033 under United States Trademark Registration No. 5266398 (the
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`“PIVOT Mark”). (Amended Petition ¶ 3.)
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`3.
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`4.
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`5.
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`The PIVOT Mark was registered on August 15, 2017. (Id.)
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`The PIVOT Mark is used for “beer” and “hard cider.” (Id.)
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`In its June 7, 2017 Statement of Use, Registrant declared that the PIVOT Mark is
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`2
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`in use in commerce. (Amended Petition ¶ 17)
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`6.
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`Registrant “operates a single location restaurant, located at 1400 Delaware
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`Avenue, Lexington, Kentucky 40505 and sells PIVOT beer and hard cider to its retail
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`customers within its establishment and on the adjacent premises.” (Amended Petition ¶
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`27.)
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`7.
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`Registrant has three Kentucky-based distributors: Chas Seligman Distributing
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`Company, Kentucky Eagle, Inc., and Standard Sales Company. (Amended Petition ¶ ¶ 28,
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`29, 30, and 31.)
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`8.
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`International Class 032 includes “beer,” which is an alcoholic beverage. Under
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`Federal law, “the term “alcoholic beverage” includes any beverage in liquid form which
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`contains not less than one-half of one percent of alcohol by volume and is intended for
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`human consumption.” 27 U.S.C.A. § 214 (West). Under federal regulations, beer is
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`defined as “Beer, ale, porter, stout, and other similar fermented beverages (including saké
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`and similar products) of any name or description containing one-half of one percent or
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`more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any
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`substitute for malt.” 27 C.F.R. § 25.11.
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`9.
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`International Class 033 is for alcoholic beverages, including hard cider. (See, 27
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`U.S.C.A. § 214. Hard cider is defined as “[a] wine that meets the eligibility requirements
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`set forth in § 24.331 for the hard cider tax rate set forth in § 24.270." 27 C.F.R. § 24.10.
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`10.
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`Subsequent to Registrant registering the PIVOT Mark, Petitioner filed various
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`applications to trademark claiming an intent to use the PIVOT Mark. (Petition ¶ 4.).
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`These applications were filed after Petitioner had knowledge of registrant’s trademarks
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`3
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`and had knowledge that Registrant had filed a Letter of Protest and an extension of time
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`to oppose Application No. 88821636 “Pivot Coffee.”
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`11.
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`In order to register its marks, Petitioner filed the Petition for Cancellation of the
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`PIVOT Mark that is the subject of this proceeding. The bases for the Petition are that the
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`Registrant failed to disclose material facts in its application for the PIVOT Mark with an
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`intent to deceive the Trademark Office and that Registrant has abandoned use of the
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`PIVOT Mark. (Amended Petition Claims 1 and 2.)
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`LEGAL STANDARD
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`
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`A motion to dismiss under Rule 12(b)(6) is a test of the legal sufficiency of a complaint.
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`See Advanced Cardiovascular Sys. Inc. v. SciMed Life Sys. Inc., 26 USPQ2d 1038, 1041 (Fed.
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`Cir. 1993). In Bell Atlantic Corp. v. Twombly, the Supreme Court redefined pleading standards,
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`requiring courts to conduct a rigorous review of claims at the pleading stage. 550 U.S. 544, 557–
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`58 (2007). To survive a motion to dismiss, a complaint must contain factual matter that, if
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`accepted as true, is “plausible on its face.” Id. at 570. The Court revisited the same issue in
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`Ashcroft v. Iqbal, directing district courts to follow a two-step approach: (1) “begin by
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`identifying pleadings that, because they are no more than conclusions, are not entitled to the
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`assumption of truth”; and (2) ”when there are well-pleaded factual allegations, a court should
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`assume their veracity and then determine whether they plausibly give rise to an entitlement of
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`relief.” 556 U.S. 662, 679 (2009).
`
`
`
`The Federal Circuit Court of Appeals found that a patent infringement claim was
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`implausible when it claimed “Nokia 6061 ‘reproduces the novel distinctive design appearance of
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`4
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`the clam-shell design,’ but does not explain which patents include this design, where it appears in
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`the accused product, or any other facts relevant to the question of infringement.” Colida v. Nokia,
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`Inc., 347 F. App'x 568, 570 (Fed. Cir. 2009). See also Gharb v. United States, No. 13-089C, 2013
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`WL 6383083, at *5 (Fed. Cl. Dec. 6, 2013) (“Mister Gharb's difficulties do not end there,
`
`however, as his allegations that Schneider Electric products infringed the '654 patent are the sort
`
`of ‘mere conclusory statements’ that the Supreme Court found implausible in Iqbal and
`
`Twombly.”)
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`
`
`With respect to the second step, “[a] claim has facial plausibility when the plaintiff pleads
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`factual content that allows the court to draw reasonable inference that the defendant is liable for
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`the misconduct alleged.” Iqbal, 556 U.S. at 678. This standard “asks for more than a sheer
`
`possibility that a defendant has acted unlawfully” or a “formulaic recitation of the elements”
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`required. Id. (emphasis added). Even when assuming the facts in the complaint are true, the
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`board “is not required to indulge in unwarranted inferences in order to save a complaint from
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`dismissal.” Juniper Networks Inc. v. Shipley, 98 U.S.P.Q.2d 1491, 1493-94 (Fed. Cir. 2011)
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`(quoting Metzler Inv. GmbH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064-65 (9th Cir. 2008)).
`
`Thus, bald conclusory allegations, unsupported by factual averments, are insufficient to state a
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`valid claim for relief. See, e.g., McConnell Douglas Corp. v. Nat’l Data Corp., 228 U.S.P.Q. 45,
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`47 (T.T.A.B. 1985) (granting motion to dismiss); see also Doyle v. Al Johnson’s Swedish Rest. &
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`Butik, Inc., 101 U.S.P.Q.2d 1780, 1783 (T.T.A.B. 2012) (dismissing petition to cancel based on
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`deficient factual pleadings).
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`
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`With respect to a cancellation proceeding before the Board, the plaintiff must allege a
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`valid ground exists for opposing or cancelling the registration of the mark. See Twombly, 550
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`5
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`U.S. at 570; Lipton Indus., Inc. v. Ralston Purina Co., 213 USPQ 185, 187 (C.C.P.A. 1982). The
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`Petitioner fails to meet this standard in this case.
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`DISCUSSION
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`
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`On the first claim, which is a claim of fraud, Petitioner must allege plausible facts, not
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`conclusory allegations, of the following elements: “(1) a false representation regarding a material
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`fact; (2) the registrant’s knowledge or belief that the representation is false; (3) the registrant’s
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`intent to induce reliance upon the misrepresentation; (4) actual, reasonable reliance on the
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`misrepresentation; and (5) damages proximately caused by that reliance.” Hokto Kinoko Co. v.
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`Concord Farms, Inc., 738 F.3d 1085, 1097 (9th Cir. 2013). “Fraud can only be found if there is
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`‘a willful intent to deceive.’” In re Bose Corp., 580 F.3d 1240, 1246 (Fed. Cir. 2009). Petitioner’s
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`claim fails to allege plausible facts regarding elements (1), (2), and (3) for three reasons. First,
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`the sale of alcoholic beverages is, as a matter of law, interstate commerce. Second, Petitioner
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`relies on implausible factual allegations, and third, Petitioner relies on bald conclusory
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`allegations.
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`On the second claim, which is of abandonment, Petitioner must make plausible
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`allegations that Registrant has abandoned the PIVOT Mark for beer and cider. As with the first
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`claim of fraud, Petitioner’s allegations used to support the claim of abandonment fail as they rely
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`on bald conclusory and implausible allegations.
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`I.
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`Registrant’s Application Was Accurate Regarding Use in Interstate Commerce in
`that, as a Matter of Law, Alcohol Sales Are Interstate Commerce.
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`
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`As a matter of law, Registrant’s use of the mark PIVOT® to sell alcoholic beverages in a
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`restaurant and through distributors are uses in interstate commerce. The Federal Circuit Court of
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`6
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`Appeals has held that sales across state lines are not necessary for a finding of interstate
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`commerce as long as the product, in this case alcoholic beverages, is regulated by the Federal
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`government. First, the court noted that “[it] is beyond dispute” that the Lanham Act covers all
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`commerce Congress is permitted to regulate. Christian Faith Fellowship Church v. adidas AG,
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`841 F.3d 986, 995 (Fed. Cir. 2016) (internal citations omitted). The Court then held that
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`Because one need not direct goods across state lines for
`Congress to regulate the activity under the Commerce Clause,
`there is likewise no such per se condition for satisfying the
`Lanham Act’s “use in commerce” requirement. See Raich, 545
`U.S. at 22, 125 S.Ct. 2195 (“That the regulation [passed under the
`Commerce Clause] ensnares some purely intrastate activity is of no
`moment.”); Wickard, 317 U.S. at 125, 63 S.Ct. 82 (“[E]ven if . . .
`activity be local . . . it may still, whatever its nature, be reached by
`Congress if it exerts a substantial economic effect on interstate
`commerce . . . .”).
`
`Id. (emphasis added); see also Larry Harmon Pictures Corps, 929 F.2d 662, 666 (Fed. Cir. 1991)
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`(“It is not required that such services be rendered in more than one state to satisfy the use in
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`commerce requirement.” (citing In re Gastown, Inc., 326 F.2d 780, dec782–84, 51 CCPA 876,
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`140 USPQ 216 (1964)).
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`
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`This definition of interstate commerce applies in the registration context: “We see no
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`basis for the meaning of commerce in the registration context to be different from the meaning in
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`the infringement context, particularly since the meanings both derive from the same definition in
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`15 U.S.C. § 1127 (1976).” In re Silenus Wines, Inc., 557 F.2d 806, 810–12 (C.C.P.A. 1977)
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`(observing courts uniformly hold in the infringement context that “‘commerce’ includes
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`intrastate transactions that affect interstate or foreign commerce.” (internal citations omitted)).
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`
`
`
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`The case is clear. Beer and cider are alcoholic beverages, and federal law regulates their
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`7
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`sale. See, e.g. U.S. Const. amend XXI; 27 U.S.C. § 121, et seq. Furthermore, the Trademark Trial
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`and Appeal Board confirmed in-state alcohol sales satisfy the interstate commerce sales
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`requirement:
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`Even if Opposer sold its beer and ale only in New York state, such
`sales satisfy the use in commerce requirement. . . .
`
`Great Adirondack Steak & Seafood Cafe, Inc., No. 91219162, 2017 WL 3670296, at *2 (T.T.A.B.
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`June 8, 2017) (internal citations omitted). See also Mazama Brewing Co., LLC, No. 91236790,
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`2018 WL 2018076, at *6 (Apr. 27, 2018).
`
`
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`Registrant applied for a mark for the sale of alcoholic beverages. Under well-established
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`law, such sales—even if solely intrastate—are sales in interstate commerce. Thus, Registrant’s
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`representation in the application for the PIVOT Mark was accurate as a matter of law, and
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`Petitioner cannot maintain a claim for fraud based on any allegation concerning the absence of
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`sales of PIVOT beer and hard cider outside of Kentucky.
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`II.
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`Petitioner’s Allegation of Respondent’s Knowledge of Conflicting Use of the PIVOT
`Mark is Conclusory, Should Not be Assumed True, and Fails to Support the Claim if
`Assumed True
`
`
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`Rule 9 specifically requires a petitioner to plead fraud with particularity. Fed. R. Civ. P.
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`9(b). Although Rule 9(b) permits a party to generally allege conditions of a person’s mind such
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`as knowledge, “the plaintiff still must plead facts about the defendant’s mental state, which,
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`accepted as true, make the state-of-mind allegation ‘plausible on its face.’” Republic Bank &
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`Trust Co. v. Bear Stearns & Co., 683 F.3d 239, 247 (6th Cir. 2012) (quoting Iqbal, 556 U.S. at
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`678); Fed. R. Civ. P. 9(b). Without these factual allegations, statements about defendants’
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`knowledge are “conclusory and not entitled to be assumed true.” Iqbal, 556 U.S. at 681; accord
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`Katoula v. Detroit Entm’t, LLC, 557 F. App’x 496, 498 (6th Cir. 2014) (affirming dismissal where
`
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`8
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`complaint lacked facts necessary to infer defendant’s knowledge or reckless disregard); Orvil
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`Nelson & Co., Inc. v. All Am. Homes of Tenn., No. 07-cv-239, 2008 WL 1745169, at *5 (E.D. Ky.
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`Apr. 11, 2008) (dismissing claim because conclusory statement that certification “was untrue,”
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`without facts showing that defendant knew or should have known it was not true).
`
`
`
`Even if Petitioner’s allegation that Respondent knew of other companies using the
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`PIVOT Mark for conflicting uses when the Statement of Use was filed was true (which it was
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`not), the allegation does not support the claim as a matter of law. In Nw. Corp. v. Gabriel Mfg.
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`Co., No. 95 C 2004, 1996 WL 251433, at *7 (N.D. Ill. May 8, 1996) (citing McCarthy on
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`Trademarks § 31.21 [[[3][d] at 31-119 (citing International House of Pancakes, Inc. v. Elca
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`Corp., 216 U.S.P.Q. 521 (T.T.A.B. 1982)), the court stated there must be a superior claim at the
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`time of filing and the applicant must have known that the other user had superior rights:
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`In order to prove fraud arising from a false oath or the nondisclosure of
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`other users, parties must prove the following: (1) that there was in fact a use of the
`same or a confusingly similar mark at the time the oath was signed; (2) that the
`other user had legal rights superior to the applicant; (3) that the applicant knew
`the other user had superior rights in the mark; and (4) that in failing to disclose the
`other user, the applicant deliberately attempted to obtain a registration to which it
`was not entitled.
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`Id. Here Petitioner makes only vague assertions about other uses and does not provide any
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`factual allegation that one of the other users had a superior claim to Registrant.
`
`
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`Recently, the Federal District Court for the Northern District of California stated that
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`applicants must only disclose users with a right not just a superior claim:
`
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`The trademark applicant must only disclose ‘conflicting rights’ of another
`user ‘which are clearly established’ by, for instance, ‘a court decree, by the terms
`of a settlement, or by a registration.’ ” Airwater, 84 F. Supp. 3d at 953 (quoting
`Rosso & Mastracco, Inc. v. Giant Food Inc., 720 F.2d 1263, 1266 (Fed. Cir.
`1983)). There is no obligation “to investigate and report all other possible users of
`
`
`
`9
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`

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`an identical or confusingly similar mark.” Id. (quoting Rosso, 720 F.2d at 1266). It
`is therefore insufficient to allege only that the trademark applicant was aware of
`and failed to disclose another party’s use of the contested mark. See id.
`
`LiveRamp, Inc. v. Kochava, Inc., No. 19-CV-02158-CRB, 2020 WL 2065696, at *3 (N.D. Cal.
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`Apr. 29, 2020). Again Petitioner has failed to provide any factual allegations that Registrant
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`knew of users with conflicting rights when Registrant filed the Statement of Use. Petitioner has
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`failed to provide any factual allegations showing a superior claim or a right including who the
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`users were, when they used the mark, and where they used the mark. Further, Petitioner has
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`failed to allege any facts to show how Registrant would have known of any superior claim or
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`right.
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` Petitioner’s Allegation of a Fraudulent Specimen Fails to Support the Claim of
`III.
`Fraud as a Matter of Law as Boards Are Acceptable Specimens
`
`
`
`In Re Campos Deli at Mkt., Inc., No. 77768687, 2012 WL 3561620, at *7 (Aug. 7, 2012),
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`the Trademark Trial and Appeal Board stated point of sale displays are acceptable specimens.
`
`Citing In re Bright of America, Inc., 205 USPQ 63, 71 (TTAB 1979). See also In re Marriott
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`Corp., 459 F.2d 525, 173 USPQ 799, 800 (CCPA 1972) (menu held an acceptable “display”
`
`because the mark appeared on the menu in close proximity to an illustration and/or description of
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`the particular sandwich identified by the mark). The Trademark Trial and Appeal Board In Re
`
`Campos Deli at Mkt. specifically found that a board on the wall was an acceptable specimen. Id.
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`Here it is clear from the specimen presented that the board was on the wall. There are no facts to
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`suggest that it is “an unacceptable fraudulent mock-up.” The other specimens provided are
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`Alcohol and Tobacco Tax and Trade Bureau-approved labels for keg-sized containers of beer and
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`hard cider. See 27 C.F.R. §25.141 and 27 C.F.R. §24.257 requiring the “brand name” or
`
`
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`10
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`manufacturer to be put on the label for beer and cider, respectively. See also 27 C.F.R. §16.21 for
`
`additional labeling requirements like health warning.
`
`Petitioner’s Claims of Fraud and Abandonment Based on the Allegations Relating to
`IV.
`Registrant’s Use of the PIVOT Mark Fail as the Factual Allegations Are Implausible
`
`
`
`The Board may disregard allegations made by Petitioner that are patently implausible.
`
`Deyerberg v. Holder, No. CIV.A.10-0671 (JDB), 2010 WL 2131834, at *1 (D.D.C. May 26,
`
`2010), aff'd, 455 F. App'x 1 (D.C. Cir. 2011). Petitioner makes allegations, including those in
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`Amended Petition Paragraphs 41, 49, 50, and 51, about Registrant’s use of the PIVOT Mark for
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`cider and beer that cross the threshold of being patently implausible. Registrant’s Pivot Mark
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`cider and beer brand has interacted with the general public on an almost daily basis since
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`opening its taproom to the public on October 28, 2016, selling to customers by the glass and
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`package for carryout (Exhibit A, Lexington Herald-Leader article and photos of boards), and
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`continuing to this day (Exhibit B, https://www.pivotbrewingcompany.com). For Petitioner’s
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`allegations regarding Registrant’s use of the PIVOT Mark cider and beer brand contained in
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`Petitioner’s Amended Petition, including those in Amended Petition Paragraphs 41, 49, 50, and
`
`51, to be true, the thousands of reviews spanning multiple online, publicly available outlets such
`
`as Untappd.com, Yelp.com, Facebook.com, and Google.com posted continuously from at least
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`10/4/2016, during the taproom’s soft open, to 11/28/2020 and by unique accounts would have to
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`be fake, which enters the realm of absurdity. (See, e.g. Exhibit C, Facebook post First Beer on
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`Tap on 5/29/2017 and Yelp review of Cider on 2/24/2017).
`
`
`
`11
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`

`The Implausibility of Petitioner’s Allegations Invoke the Protections Provided by
`V.
`Rule 11
`
`
`
`Rule 11 provides that the filer must certify that the factual contentions have evidentiary
`
`support after reasonable inquiry:
`
`(b) Representations to the Court. By presenting to the court a pleading, written
`motion, or other paper--whether by signing, filing, submitting, or later advocating
`it--an attorney or unrepresented party certifies that to the best of the person's
`knowledge, information, and belief, formed after an inquiry reasonable under the
`circumstances:
`(1) it is not being presented for any improper purpose, such as to harass, cause
`unnecessary delay, or needlessly increase the cost of litigation;
`(2) the claims, defenses, and other legal contentions are warranted by existing law
`or by a nonfrivolous argument for extending, modifying, or reversing existing law
`or for establishing new law;
`(3) the factual contentions have evidentiary support or, if specifically so
`identified, will likely have evidentiary support after a reasonable opportunity for
`further investigation or discovery; and
`(4) the denials of factual contentions are warranted on the evidence or, if
`specifically so identified, are reasonably based on belief or a lack of information.
`
`Id. “In evaluating whether the signer of a filing has violated Rule 11, the district court applies an
`
`objective standard of reasonableness, examining whether, under the circumstances of a given
`
`case, the signer has conducted a ‘reasonable inquiry’ into the basis of a filing.” Colida v. Nokia,
`
`Inc., 347 F. App'x 568, 571 (Fed. Cir. 2009).
`
`
`
`Petitioner alleges that on October 7, 2020, Respondent announced its intent to Petitioner
`
`to market and sell PIVOT coffee-infused beer. (Amended Petition ¶ 7.) Petitioner is apparently
`
`basing this allegation on correspondence with counsel for Respondent from 10/7/2020, which
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`included the following statement: “My client has offered coffee-infused beers.” (Exhibit E,
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`Letter to Speiss). Petitioner is clearly misstating the facts of this statement, which is easily
`
`
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`12
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`

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`disproved by a search of publicly available resources. (See EXHIBIT F, Facebook post on July
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`21).
`
`
`
`Petitioner alleges that Respondent began selling PIVOT-labeled beer and hard cider on or
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`about July 8, 2018 and that Respondent “sold homemade, unbranded beer and hard cider” as
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`Pivot Brewing Company prior to this date (Amended Petition ¶ 19.) Petitioner has included a set
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`of allegations that suggest criminal activity on the part of Respondent but that are disprovable
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`with the slightest effort through publicly available sources. The only realistic conclusion is that
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`Petitioner has knowingly included false statements that are defamatory per se. Respondent’s
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`business operates in a heavily regulated industry and is subject to federal, state, and local
`
`licensing and oversight, and false statements of criminal activity can produce damage to its
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`business reputation. Consequently, the claims based on these implausible allegations must fail in
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`part or in whole.
`
`CONCLUSION
`
`
`
`Petitioner has set forth meritless claims based on implausible and bald allegations and an
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`erroneous understanding of the law. Registrant properly filed a statement of use based on its sales
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`and distribution of alcoholic beverages subject to federal law and has not abandoned its use of
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`the PIVOT Mark for beer and cider as clearly supported by publicly available information. For
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`these reasons, the Petition must be dismissed.
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`Respectfully submitted,
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`/s/ Julie A. Tennyson
`Julie A. Tennyson
`S. Scott Marcum
`P.O. Box 9551
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`13
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`Paducah, Kentucky 42002
`(270) 534-5135
`jtennyson@marcumtennyson.com
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`COUNSEL FOR RESPONDENT
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`CERTIFICATE OF SERVICE
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`The undersigned, an attorney, hereby certifies that a copy of the foregoing Motion to Dismiss is
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`being deposited with the United States Postal Service with sufficient postage as first-class mail this 2nd
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`Day of December, 2020, in an envelope addressed to Applicant’s counsel at:
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`THOMAS J SPEISS III
`BUCHALTER A PROFESSIONAL CORPORATION
`1000 WILSHIRE BLVD, SUITE 1500
`LOS ANGELES, CA 90017
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`and further certifies that the aforementioned Motion to Dismiss was filed with the Trademark Trial and Appeal
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`Board on the date indicated above online through the ESTTA system of the United States Patent and
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`Trademark Office.
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`/s/ Julie A. Tennyson
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`Julie A. Tennyson
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`14
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`Pivot Brewing cidery to open Saturday; plans to produce its own versions | Lexington Herald Leader
`
`11/30/20, 11:01 AM
`
`SECTIONS
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`HOME RESTAURANT NEWS & TRENDS
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`Pivot Brewing to open; cidery offers alternative
`to beer (and it’s gluten free)
`
`By Janet Patton
`
`jpatton1@herald-leader.com
`
`OCTOBER 25, 2016 02:03 PM, UPDATED OCTOBER 25, 2016 03:09 PM
`
`! " # $
`
`Owner Kevin Compton poured a beer for a customer at Pivot Brewing Company on Delaware Avenue in
`Lexington. The taproom will host a grand opening on Saturday featuring 11 regional ciders and eight mostly
`Kentucky craft beers. PABLO ALCALA PALCALA@HERALD-LEADER.COM
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`Listen to this article now
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`Page 1 of 6
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`Pivot Brewing cidery to open Saturday; plans to produce its own versions | Lexington Herald Leader
`
`11/30/20, 11:01 AM
`
`Lexington’s first modern cidery is gearing up to open later this month. Owner Kevin
`Compton has worked for more than two years to get his Pivot Brewery going and
`will launch the taproom Saturday at 11:30 a.m.
`
`The grand opening will feature ciders from other makers for now. Compton will
`have 11 ciders on tap, ranging from sweet to dry, plus eight mostly Kentucky craft
`beers.
`
`The Pasta Garage, just down Delaware Avenue from the cidery, will have food for
`sale on the extensive patio overlooking downtown Lexington.
`
`TOP ARTICLES
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`Employer remembers woman killed in triple Lexington shooting
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`“What sets us apart is our concentration on ciders,” Compton said. After the taproom
`opened quietly a couple weeks ago, customers began trickling in. Many, he said, are
`grateful to have a gluten-free option in adult beverage. Others just share his love of
`hard cider.
`
`Why cider, which until fairly recently was not much on the American drinker’s
`radar?
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`“I just like it,” Compton said. He’s hardly alone these days.
`
`Hard cider sales grew to more than $523 million in 2015, according to The Cider
`Journal, although sales growth has slowed.
`
`Compton plans to make several versions, have seven or eight on tap, and hopes to
`
`https://www.kentucky.com/lexgoeat/restaurants/article110351497.html
`
`Page 2 of 6
`
`

`

`Pivot Brewing cidery to open Saturday; plans to produce its own versions | Lexington Herald Leader
`
`11/30/20, 11:01 AM
`
`have at least three versions in kegs for distribution.
`
`He also plans to brew some beer, too. And he’ll share space in his production area
`with the maker of Gents ginger ale and other local drinks.
`
`Sometime in the next two weeks, Pivot will begin crushing apples, Compton said, so
`he could have his own hard cider to serve before the end of the year. Already he has
`most of the equipment in place to wash, crush and mash apples.
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`Operations manager Kyle Degener is seeking a source of local apples, but for now he
`plans to bring them from Indiana and Ohio. Finding the right variety is tough,
`because most orchards prefer to grow sweeter dessert apples for eating.
`
`“Winesaps or Arkansas Blacks, ... those are just great,” Degener said.
`
`They will need to bring whole truckloads, 50 bins at a time of 900 to 950 pounds
`each. They will juice them and fill the three 10-barrel fermenters and add yeast to
`generate the appropriate flavor.
`
`“You can do wild fermenting, with the yeast that’s on the apples naturally, but for a
`more consistent product, we’ll use industrial brewers’ yeast,” Compton said. “We
`might do some wild ferment down the road.”
`
`He also plans to try barrel-aging of ciders in bourbon barrels. And he hopes to turn
`the “pumice” (the leftover bits of apple after the juice is pressed out) into another
`product, although for now it will go to farmers for animal feed.
`
`“Chickens love it,” Compton said.
`
`Janet Patton: 859-231-3264, @janetpattonhl
`
`https://www.kentucky.com/lexgoeat/restaurants/article110351497.html
`
`Page 3 of 6
`
`___
`
`

`

`Pivot Brewing cidery to open Saturday; plans to produce its own versions | Lexington Herald Leader
`
`11/30/20, 11:01 AM
`
`Owner Kevin Compton, left and operations manager Kyle Degener at the bar of the taproom at Pivot Brewing
`at 1400 Delaware Avenue in Lexington. The taproom currently features regional ciders and beers, but the
`cidery is almost complete and will soon be producing a variety of ciders for the taproom and local distribution.
`PABLO ALCALA PALCALA@HERALD-LEADER.COM
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`https://www.kentucky.com/lexgoeat/restaurants/article110351497.html
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`Pivot Brewing cidery to open Saturday; plans to produce its own versions | Lexington Herald Leader
`
`11/30/20, 11:01 AM
`
`Federal appellate court agrees with
`Beshear’s order to close all
`Kentucky schools
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`UPDATED NOVEMBER 29, 2020 06:20 PM
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`Employer remembers woman
`killed in triple Lexington shooting
`as police investigate
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`UPDATED 3 HOURS 35 MINUTES AGO
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`Updated: In 3rd Lexington shooting
`Sunday, man stands in busy
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`UPDATED 3 HOURS 46 MINUTES AGO
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`FAYETTE COUNTY
`
`Lexington health department sues coffee
`shop for not following Beshear’s orders
`
`BY JEREMY CHISENHALL
`NOVEMBER 27, 2020 03:26 PM, UPDATED NOVEMBER 27, 2020 05:01 PM
`
`! " # $
`
`The Lexington-Fayette County Health Department has filed a lawsuit against the owner of
`Brewed, a coffee shop that refused to follow Gov. Andy Beshear’s order to stop indoor
`dining.
`
`The lawsuit calls for a temporary injunction or a temporary restraining order to force the
`coffee shop to close its indoor dining and drinking options.
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`Patrons verbally ‘abuse’ inspector
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