Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1129951
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`Filing date:
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`04/27/2021
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`92076469
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`Party
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`Correspondence
`Address
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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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`Defendant
`Mad Dogg Athletics, Inc.
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`KONRAD GATIEN
`KEATS GATIEN, LLP
`120 S. EL CAMINO DR.
`SUITE 207
`BEVERLY HILLS, CA 90291
`UNITED STATES
`Primary Email: uspto@keatsgatien.com
`424-302-0717
`
`Motion to Dismiss - Rule 12(b)
`
`Matthew E. Graham
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`uspto@keatsgatien.com, matt@keatsgatien.com, kg@keatsgatien.com
`
`/s/
`
`04/27/2021
`
`Attachments
`
`MTD 92076469 SPIN PILATES cl 41 w Exhs.pdf(947720 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`In the Matter of Reg. No. 3,528,187
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`Peloton Interactive, Inc.,
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`Petitioner,
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`v.
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`Mad Dogg Athletics, Inc.
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`Registrant.
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`Can. No. 92076469
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`MAD DOGG ATHLETICS, INC.’S
`MOTION TO DISMISS PETITION TO CANCEL; OR, IN THE ALTERNATIVE,
`MOTION FOR A MORE DEFINITE STATEMENT AND MOTION TO STRIKE
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`Table of Contents
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`I.
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`INTRODUCTION...................................................................................................... 1
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`II.
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`LEGAL STANDARD ................................................................................................ 3
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`III. ARGUMENT .............................................................................................................. 4
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`A.
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`Peloton’s Retributive Pleading Is Insufficient to Confer Standing. .......... 4
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`In the Alternative, Peloton Must Provide a More Definite
`B.
`Statement. ................................................................................................................. 12
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`Paragraphs 5, 11–17, 24, 27, 29, 31–34, 38, and 45 of the Should Be
`C.
`Stricken from the Petition Because They Are Immaterial. .................................. 16
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`Paragraphs 1–4, 6, 18–20, 22, 28, 30, 35–37, and 39 Should Be
`D.
`Stricken from the Petition Because They Fail To Comply with FRCP 10(b)
`Requiring that Each Numbered Paragraph Be Limited to a Single Set of
`Circumstances. ......................................................................................................... 18
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`IV. CONCLUSION ........................................................................................................ 19
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`ii
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`Table of Authorities
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`Cases
`Advanced Cardiovascular Systems Inc. v. SciMed Life Systems Inc.,
`
`988 F.2d 1157, 26 USPQ2d 1038 (Fed. Cir. 1993) ..................................................... 3
`Baker v. Carr, 82 S.Ct. 691 (1962) .......................................................................................... 4
`Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007) ........................................................... 12
`Continental Specialties Corp. v. Continental Connector Corp.,
`
`192 USPQ 449 (TTAB 1976) .................................................................................... 10
`Covidien LP v. Masimo Corp., 109 USPQ 2d 1696 (TTAB 2014) ......................................... 3
`Empresa Cubana del Tabaco v. General Cigar Co., 753 F.3d 1270,
`
`111 USPQ2d 1058 (Fed. Cir. 2014)............................................................................. 4
`FBI v. Societe: M. Bril & Co., 172 USPQ 310 (TTAB 1971) ............................................... 11
`Int’l Tel. and Telegraph Corp. v. Int’l Mobile Machines Corp.,
`
`218 USPQ 1024 (TTAB 1983) .................................................................................... 9
`Isle of Aloe, Inc. v. Aloe Creme Laboratories, Inc., 180 USPQ 794 (TTAB 1974) .............. 18
`Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490 (Fed. Cir. 1987) ... 3, 4, 11
`Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024,
`
`1029–30, 213 USPQ 185 (CCPA 1982) ........................................................ 3, 4, 8, 11
`M/S R.M. Dhariwal (HUF) 100% EOU v. Zarda King Ltd.,
`
`2019 USPQ 2d 149090 (TTAB 2019) ..................................................................... 8, 9
`Order of Sons of Italy in America v. Profumi Fratelli Nostra AG,
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`36 USPQ2d 1221 (TTAB 1995) ................................................................................ 17
`Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317 (CCPA 1981) ............................. 9
`Ritchie v. Simpson, 170 F.3d 1092 (Fed. Cir. 1999) ................................................................ 4
`University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co.,
`
`703 F.2d 1372 (Fed. Cir. 1983).................................................................................... 9
`Yard-Man, Inc. v. Getz Exterminators, Inc., 157 USPQ 100 (T.T.A.B. 1968)...................... 11
`
`Statutes
`15 U.S.C. § 1063 ...................................................................................................................... 3
`15 U.S.C. § 1064 ...................................................................................................................... 4
`Fed. R. Civ. P. 10(b) .......................................................................................................... 2, 18
`Fed. R. Civ. P. 12(b)(6)........................................................................................................ 1, 2
`Fed. R. Civ. P. 12(e) ............................................................................................................ 1, 2
`Fed. R. Civ. P. 8(a) ................................................................................................................ 18
`
`Rules
`TBMP § 309.03 ...................................................................................................................... 18
`TBMP § 503 ......................................................................................................................... 1, 3
`TBMP § 503.02 .................................................................................................................... 2, 3
`TBMP § 505 ............................................................................................................................. 1
`TBMP § 506 ........................................................................................................................... 16
`TBMP § 506.01 ...................................................................................................................... 17
`TBMP §309.03(a)(2).............................................................................................................. 12
`TBMP §505 .............................................................................................................................. 2
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`iii
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`TBMP §505.01 ....................................................................................................................... 12
`Trademark Rule 2.116(a) ....................................................................................................... 16
`
`Treatises
`C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE Civil (3d Ed. 2021) .............. 12
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`Regulations
`37 C.F.R. § 2.116(a)............................................................................................................... 16
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`iv
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`MAD DOGG ATHLETICS, INC.’S
`MOTION TO DISMISS PETITION TO CANCEL; OR, IN THE ALTERNATIVE,
`MOTION FOR A MORE DEFINITE STATEMENT AND MOTION TO STRIKE
`
`Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) and § 503 of
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`the Trademark Board Manual of Procedure (“TBMP”), Registrant Mad Dogg Athletics, Inc.
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`(“Mad Dogg” or “Registrant”), by and through its undersigned attorneys of record, hereby moves
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`the Trademark Trial and Appeal Board (the “Board”) to dismiss the above-referenced
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`cancellation action brought by Peloton Interactive, Inc. (“Peloton” or “Petitioner”), on the
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`grounds that Peloton has failed to state a claim upon which relief can be granted because Peloton
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`lacks standing to seek cancellation of the mark at issue in this proceeding.
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`In the alternative, pursuant to FRCP 12(e) and TBMP § 505, Mad Dogg hereby moves
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`the Board for entry of an Order requiring a more definite statement of Peloton’s allegations in the
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`instant proceeding because those allegations, as currently stated, fail to clearly state the basis of
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`Peloton’s claims against Mad Dogg.
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`I.
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`INTRODUCTION
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`Peloton lacks standing to bring this action because it does not use, or even claim to use,
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`Mad Dogg’s registered trademark “SPIN PILATES” in connection with providing physical
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`fitness instruction and consultation in the fields of health and exercise, and health club services,
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`namely, providing instruction and equipment in the field of physical exercise.
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`To the contrary, the instant Petition, along with the six additional pending Petitions filed
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`before the Board (Can. Nos. 92076463, 92076554, 92076483, 92076471, 92076516, and 92076499)
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`are nothing more than retaliatory lawsuits filed in response to Mad Dogg’s civil lawsuit for patent
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`infringement against Peloton, which is currently pending in the Eastern District of Texas. See Mad
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`Dogg Athletics, Inc. v. Peloton Interactive, Inc., Case No. 2:20-CV-0382-JRG (E.D. Tx., 2020).
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`
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`1
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`

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`As such, Peloton, a company currently valued at approximately 45 billion dollars, has no
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`actual grievance upon which to base the instant Petition, other than a desire to punish Mad Dogg
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`for seeking to protect Mad Dogg’s valuable patent rights.
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`Unfortunately for Peloton, a case of “sour grapes” is insufficient to establish standing in
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`this Proceeding. So, too, is a desire to engage in monopolistic behavior by needlessly filing a
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`series of meritless lawsuits… of which, curiously, Mad Dogg is not alone.
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`Peloton also has filed lawsuits against other leading providers of indoor cycling
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`instruction and stationary exercise bicycles. See, e.g., Peloton Interactive Inc. v. Echelon Fitness
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`Multimedia LLC, Case No. 1:21-cv-00160-UNA (Del. 2021); Peloton Interactive Inc. v. Icon
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`Health & Fitness Inc., Case No. 1:20-cv-00662 (Del. 2020); Peloton Interactive Inc. v. Flywheel
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`Sports, Inc., Case No. 2:18-CV-00390-RWS (E.D. Tx. 2018).
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`Accordingly, the instant Petition should be dismissed pursuant to FRCP 12(b)(6) and
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`TBMP § 503.02 because it constitutes nothing more than a meritless attack on Mad Dogg in an
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`attempt to create leverage in Peloton’s unrelated patent infringement defense.
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`In the alternative, if the Board does not grant Respondent’s motion to dismiss on said
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`grounds, the Board should order Petitioner to provide a more definite statement of its pleadings
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`pursuant to FRCP 12(e) and TBMP §505. Said statement should properly identify the specific
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`marks and goods and services at issue to allow Mad Dogg a full and fair opportunity to respond
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`to each allegation in a clear and unambiguous manner. In doing so, Respondent asks the Board
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`to strike paragraphs 5, 11–17, 24, 27, 29, 31–34, 38, and 45 in their entirety because these
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`paragraphs are immaterial to the instant cancellation proceeding. In addition, Respondent asks
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`the Board to strike paragraphs 1–4, 6, 18–20, 22, 28, 30, 35–37, and 39 because these paragraphs
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`are not limited to a single set of legal and/or factual circumstances as required by FRCP 10(b).
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`2
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`II.
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`LEGAL STANDARD
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`A motion to dismiss for failure to state a claim upon which relief can be granted is a test
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`solely of the legal sufficiency of a complaint. TMBP § 503.02; Advanced Cardiovascular
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`Systems Inc. v. SciMed Life Systems Inc., 988 F.2d 1157, 26 USPQ2d 1038, 1041 (Fed. Cir.
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`1993); Covidien LP v. Masimo Corp., 109 USPQ2d 1696, 1697 (TTAB 2014).
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`To withstand a motion to dismiss, a pleading “need only allege such facts as would, if
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`proved, establish that the plaintiff is entitled to the relief sought, that is, that (1) the plaintiff has
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`standing to maintain the proceeding, and (2) a valid ground exists for denying the registration
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`sought (in the case of an opposition), or for canceling the subject registration (in the case of a
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`cancellation proceeding).” TBMP § 503.02 (emphasis added).
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`Under section 13 of the Lanham Act, “[a]ny person who believes that he would
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`be damaged by the registration of a mark upon the principal register may ... file an opposition
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`[or cancellation] ... stating the grounds therefor.” 15 U.S.C. § 1063 (emphasis added).
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`Accordingly, a petitioner's “right – or standing – to bring a cancellation proceeding flows
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`from section 13 of the Lanham Act.” Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823
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`F.2d 490, 492 (Fed. Cir. 1987).
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`While there is no definition of the word “damaged” in Section 13, it is clear that “[t]he
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`purpose in requiring standing is to prevent litigation where there is no real controversy between
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`the parties, where a plaintiff, petitioner or opposer, is no more than an intermeddler.” Id.; Lipton
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`Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 1029–30, 213 USPQ 185, 189 (CCPA 1982).
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`Thus, the question of standing is whether the petitioner:
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`alleged such a personal stake in the outcome of the
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`controversy as to assure that concrete adverseness which
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`3
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`sharpens the presentation of issues upon which the court so
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`largely depends for illumination of difficult ... questions.
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`Baker v. Carr, 82 S.Ct. 691, 703 (1962) (emphasis added).
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`III. ARGUMENT
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`A. Peloton’s Retributive Pleading Is Insufficient to Confer Standing.
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`Pursuant to 15 U.S.C. § 1064, a petition to cancel a registration may be filed by any
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`person who believes that she, he, or it is or will be damaged by the continued registration of the
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`mark. The test for standing, however, includes two elements: (1) the Petitioner must have a “real
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`interest in the proceedings”; and (2) the Petitioner must have a “reasonable basis for its belief of
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`damage.” Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed. Cir. 1999); see also Empresa Cubana
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`del Tabaco v. General Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014);
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`Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024 (CCPA 1981).
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`In other words, the Petitioner’s belief that she, or he, or it is or will be damaged by the
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`continued registration of the mark must be genuine.
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`Accordingly, to establish a bona fide interest in the instant Proceeding, Peloton “must
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`allege a distinct and palpable injury . . .” Jewelers Vigilance., 823 F.2d at 493.
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`In doing so, Peloton must plead facts sufficient to show a personal interest in the
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`outcome of the case beyond that of the general public. Id. (citing Lipton Indus., 670 F.2d at
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`1028) (emphasis added).
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`The lack of any such interest in the instant Proceeding is fatal to Peloton’s Petition.
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`Peloton does not use or even claim to use the mark SPIN PILATES in connection with
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`physical fitness instruction and/or health club services, nor does Peloton claim to offer “pilates”
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`or pilates-related exercise classes.
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`4
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`Given Peloton’s meteoric rise from an under-funded startup with only approximately
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`$400,000 in early 2012 to becoming the most lucrative provider of connected fitness1 worldwide
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`with a market value of approximately $45,000,000,000, without having the need to use Mad
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`Dogg’s SPIN PILATES trademark to identify the goods and services that Peloton provides
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`clearly belies the lack of genuineness that is required for Peloton to establish standing in this
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`case.
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`To be clear, Peloton has no interest in or need to use the SPIN PILATES mark in
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`connection with Peloton’s indoor cycling business. Peloton merely wants to punish Mad Dogg
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`for protection of Mad Dogg’s own intellectual property rights after Mad Dogg filed a patent
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`lawsuit against Peloton in late 2020.
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`In its Petition, Peloton does not bother to claim that Peloton uses the term SPIN
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`PILATES to refer to its own goods or services, or even to physical fitness instruction generally.
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`Instead, Peloton conflates the term “SPINNING,” which is a separate and distinct
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`federally registered trademark also owned by Mad Dogg, and which is not the subject of the
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`instant Petition, with the term “SPIN,” which is also a separate and distinct federally registered
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`trademark owned by Mad Dogg, and similarly not the subject of the instant Petition.
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`Specifically, in this Proceeding relating to Mad Dogg’s SPIN PILATES mark, Peloton
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`refers to “spin bikes” when describing indoor bicycles and related fitness equipment (1
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`TTABVUE 3; Petition to Cancel, ¶¶ 11 – 13), “spin classes” when describing fitness classes
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`(including Peloton’s own fitness classes) utilizing said indoor bicycles (1 TTABVUE 4; Petition
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`to Cancel, ¶¶ 14 – 15), “the spirit of spin classes” when describing Peloton’s products and
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`business model (1 TTABVUE 5; Petition to Cancel, ¶¶ 16 – 17), and claims that “Peloton was
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`1 Connected fitness is a term of art in the fitness industry that refers to the set of tools, whether apps or equipment,
`which bring together one’s fitness and one’s digital life, allowing fitness enthusiasts the near experience of working
`out in the gym from the safe and comfortable environment of their home.
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`5
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`one of many victims” because “Mad Dogg objected [to Peloton’s use of] the word ‘spin’ ” on
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`Youtube. (1 TTABVUE 2; Petition to Cancel, ¶ 5) (emphasis added). There are no allegations
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`regarding the use of SPIN PILATES for any goods and services at issue in Peloton’s petition.
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`Accordingly, Peloton does not have any “real interest in the proceedings” because it does
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`not use, or claim to use, Mad Dogg’s registered trademark “SPIN PILATES.”
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`Moreover, the Petition is replete with hearsay statements (without supporting exhibits)
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`claiming that the term “spin” (not “spin pilates”) is allegedly used as a “generic term” by certain
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`unidentified third parties. Petitioner’s allegations concerning the alleged use of the term “spin”
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`are not relevant to the instant proceeding concerning Mad Dogg’s long-standing and
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`incontestable SPIN PILATES trademark.
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`To the extent such allegations are relevant at all, they are relevant only to the co-pending
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`petition to cancel Mad Dogg’s SPIN trademark registration (Can. No. 92076483), not this
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`proceeding. A list of such allegations is set forth below:
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`• Paragraph 4: alleging that a “journalist wrote in a 2015 piece for the online outlet
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`TechDirt reporting on Mad Dogg’s trademarks on SPIN and SPINNING….”;
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`• Paragraph 24: Peloton’s alleged definition of “spin class”;
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`• Paragraph 26: alleging that “the New York Times has covered spin class culture
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`over the years;
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`• Paragraph 27: alleging that “[t]he Washington Post has also routinely covered the
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`spin class phenomenon”;
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`• Paragraph 29: alleging that “TeenVogue has published several articles about spin
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`classes;
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`• Paragraph 30: alleging that TIME Magazine discussed “the benefits and
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`downsides to spin classes”;
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`6
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`• Paragraph 31: alleging that “CNET published an article in July 2020 titled ‘Spin
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`class at home: How to get the best results without going to a gym’ ”;
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`• Paragraph 32: alleging that “the Huffington Post published a series of spin class
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`memes entitled ‘20 Things That’ll Make Spin Enthusiasts Say ‘Yas,’ ”;
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`• Paragraph 33: alleging that “[t]he Huffington Post has featured several other
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`articles… including the July 2017 article ‘How To Not Die In Spin Class’; the
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`June 2016 article “My Soul-Wrenching Experience At Spin Class”; the December
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`2016 article “This Spin Class Makes You Feel Like You’re Soaring Through
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`Space”; and the March 2014 article “8 Reasons To Learn To Love Spin Class.”;
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`• Paragraph 34: alleging the results for a “Google search of “spin class” memes;
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`• Paragraph 35: alleging that a “blogger” wrote an “article on the then-popular
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`website Racked entitled “Meet the Company that Trademarked the Word
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`‘Spin,’”;
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`• Paragraph 38: alleged article entitled “What Is a Spin Bike?”.
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`See 1 TTABVUE 6 – 9; Petition to Cancel, ¶ 24 – 38 (emphasis added).
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`Because Peloton does not use or claim to use the term SPIN PILATES, it follows that
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`Peloton can have no real interest in Mad Dogg’s SPIN PILATES Mark sufficient to meet the
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`requirement for standing.
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`Nevertheless, Peloton attempts to gloss over this fact by using the terms “spin” and
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`“spinning” interchangeably in the hope that the Board will construe these marks with Mad
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`Dogg’s trademark registration for “SPIN PILATES.”
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`They are not the same.
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`To the contrary, Peloton’s own filing of seven different petitions, rather than a single
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`petition, can be taken as an admission by Peloton of the obvious differences in the marks and uses
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`7
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`at issue, namely, SPIN, SPINNING, SPIN FITNESS, and SPIN PILATES (Can. Nos. 92076516;
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`92076483; 92076469; 92076499; 92076471; 92076463; and 92076554). See Exhs. 1 – 7.
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`In addition, to meet the threshold for standing, Peloton must allege a reasonable basis for
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`its belief that it would be damaged by the continued registration of Mad Dogg’s SPIN PILATES
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`Mark . See, Lipton Indus., 670 F.2d at 1029 (emphasis added).
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`The court in Lipton gave examples of how a petitioner could plead and prove a
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`reasonable basis for believing that it would sustain any such damages.
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`First, the petitioner may assert likelihood of confusion (that is not wholly without merit).
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`Id. at 1029. That was not done here.
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`Second, the petitioner could assert that it had an application that was rejected due to the
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`subject registration. Id. Similarly, that was not done here.
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`When the alleged descriptiveness or genericness of a mark is at issue, the petitioner may
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`plead (and later prove) its standing by alleging that it is engaged in the sale of the same or related
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`products or services (or that the product or service in question is within the normal expansion of
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`plaintiff’s business) and that the plaintiff has an interest in using the term descriptively in its
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`business (i.e., that the petitioner is a competitor). See, e.g., M/S R.M. Dhariwal (HUF) 100%
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`EOU v. Zarda King Ltd., 2019 USPQ 2d 149090, at *4 (TTAB 2019) (standing to assert a § 2(c)
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`claim may be established by facts that plaintiff is a competitor and has a present or prospective
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`right to use the name).
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`Peloton has not alleged a likelihood of confusion between Mad Dogg’s SPIN PILATES
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`Mark and any of Peloton’s own marks, nor has Peloton alleged that any of its marks would be
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`refused registration due to the trademark registration for Mad Dogg’s SPIN PILATES Mark.
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`Lipton Indus., 670 F.2d at 1029.
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`8
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`Similarly, Peloton has not alleged that it has an interest in using the term “spin pilates”
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`descriptively in its business, or that it is a direct competitor of Mad Dogg. M/S R.M. Dhariwal,
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`2019 USPQ 2d 149090.
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`The conspicuous absence of any such allegations by Peloton regarding a likelihood of
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`confusion, Peloton’s purported rights in a confusingly similar mark, or any interest by Peloton in
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`using the term “spin pilates” to describe or refer to Peloton’s own indoor cycling goods and
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`services is dispositive of Peloton’s lack of any reasonable basis for believing that it will be
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`damaged by the continued registration of Mad Dogg’s SPIN PILATES Mark. See Int’l Tel. and
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`Telegraph Corp. v. Int’l Mobile Machines Corp., 218 USPQ 1024, 1983 WL 66937 at *3 (TTAB
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`1983) (“[I]nasmuch as petitioner has alleged neither likelihood of confusion nor that it has
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`actually been refused registration of its mark in view of respondent’s registration, it has not
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`alleged a reasonable basis for its belief that it is or will be damaged by the continued existence of
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`respondent’s registration.”). See also University of Notre Dame Du Lac v. J.C. Gourmet Food
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`Imports Co., 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); Otto Roth & Co. v. Universal
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`Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981).
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`Tellingly, as reproduced below, in paragraph 45 of the Petition, Peloton admits that its
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`damages, if any, are limited to “its spin bike products and services”:
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`• Paragraph 45: “Peloton is being damaged, and will continue to be damaged, by
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`the continued registration of this trademark on the Principal Register, as Peloton
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`(and the world) should be free to use this term to discuss, market and sell its spin
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`bike products and services, but instead is constrained by Mad Dogg’s threats from
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`doing so.”
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`1 TTABVUE 11; Petition for Cancellation at ¶ 45 (emphasis added).
`
`
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`9
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`Despite the absence in its Petition of any pleading sufficient to meet the above tests for
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`conferring standing, Peloton nevertheless attempts to mislead the Board into believing that it
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`does in fact have standing; namely, by conflating the term “SPIN” with the term “SPINNING,”
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`neither of which identify the subject registration for SPIN PILATES.
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`As discussed below, Peloton intentionally conflates these terms in a vague and
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`ambiguous manner to obscure the fact that they are, in fact, separate marks, and that Peloton is
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`really only complaining about Mad Dogg’s SPIN trademark. Specifically, Peloton contends that
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`its harm arises from its belief that it “should be free to… market and sell its spin bike products
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`and services.” Id.
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`Peloton’s belief that it should be free to use Mad Dogg’s trademark for SPIN to describe
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`Peloton’s own goods or services is insufficient to attack Mad Dogg’s trademark registration for
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`SPIN PILATES at issue in this Proceeding.2
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`Therefore, all allegations relating to Mad Dogg’s SPIN trademark are inappropriate in the
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`operative pleading in this Proceeding because such allegations do not support a finding that
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`Peloton has a personal interest in filing a petition to cancel Mad Dogg’s SPIN PILATES Mark.
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`Moreover, Peloton’s vague and conclusory belief that it is or has been somehow
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`“constrained by Mad Dogg’s threats from [using the mark]” does not meet Peloton’s burden of
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`providing specific conditions and circumstances, from which damage by the continued
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`registration of Mad Dogg’s SPIN PILATES Mark can be assumed. Continental Specialties Corp.
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`v. Continental Connector Corp., 192 USPQ 449 (TTAB 1976) (“[I]t is well settled that the threat
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`2 See Exhibit 1, Peloton’s Petition to Cancel the mark SPIN (Can. No. 92076483). Pursuant to 37 C.F.R. § 2.122(a-
`d), the Board may take notice of adjudicated facts and pleadings, and the court may take juridical notice when
`supplied with the necessary information. The Board may take such judicial notice of the facts and pleadings whether
`requested or not. See TBMP § 704.12; see also TBMP § 704.03(b)(1)(A) (“A party that wishes to rely on its
`ownership of a federal registration of its mark that is not the subject of a proceeding before the Board may make the
`registration of record by offering evidence sufficient to establish that the registration is still subsisting, and that it is
`owned by the party which seeks to rely on it.”); TBMP § 704.07 (regarding official records).
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`of a suit for infringement . . ., does not by itself constitute damage within the meaning of Section
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`13 of the Trademark Act.”); Yard-Man, Inc. v. Getz Exterminators, Inc., 157 USPQ 100 (TTAB.
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`1968) (same).3 See also FBI v. Societe: M. Bril & Co., 172 USPQ 310, 313 (TTAB. 1971)
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`(conditions and circumstances of damage must be shown).
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`So, too, are Peloton’s disingenuous allegations that it wants to remove Mad Dogg’s SPIN
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`PILATES Mark from the Principal Register so that the term can be used by the general public.
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` As noted above, Peloton can have no genuine interest in canceling Mad Dogg’s SPIN
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`PILATES Mark, because, inter alia, it does not use the term “spin pilates” descriptively. Ritchie
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`v. Simpson, 170 F.3d at 1095 (petitioner in cancellation action must have direct and personal
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`stake in outcome of the case).
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`In addition, Peloton has no right to seek cancellation of Mad Dogg’s SPIN PILATES
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`Mark for the benefit of the “general public,” because, as pointed out in Jewelers Vigilance
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`Committee, 823 F.2d at 493, sufficient facts must be pled to show a personal interest beyond
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`that of the general public. See also Lipton Indus., 670 F.2d at 1028 (“[I]f [Petitioner] does not
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`plead facts sufficient to show a personal interest in the outcome beyond that of the general
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`public, the case may be dismissed for failure to state a claim.”).
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`As to its conclusory allegation that it will be harmed by the continued registration of Mad
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`Dogg’s SPIN PILATES Mark, Peloton simply fails to show any harm that it might suffer.
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`Even assuming, arguendo, that Peloton wants to use the term “spin” generically to refer
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`to its exercise bikes or indoor cycling classes, as it alleges, then Mad Dogg’s SPIN PILATES
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`Mark is not at issue inasmuch as Peloton has filed a separate petition to cancel Mad Dogg’s
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`SPIN registration for “stationary exercise bicycles” in International Class 028 and for “physical
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`fitness instruction” in International Class 041. See Exhibit 1.
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`Because Peloton, in light of the fact that it does not use or claim to use the term SPIN
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`PILATES descriptively, can have no real interest in Mad Dogg’s SPIN PILATES Mark, Peloton
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`has no personal interest in this proceeding and therefore cannot reasonably believe that it will be
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`damaged by the continued registration of Mad Dogg’s SPIN PILATES Mark – Particularly in
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`light of the fact that Peloton has not relied on any such use in growing its business over 100,000
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`fold in the past 9 years. Thus, Peloton does not have standing to bring this action.
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`B. In the Alternative, Peloton Must Provide a More Definite Statement.
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`Peloton’s Petition must “include enough detail to give the defendant fair notice of the
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`basis for each claim.” TBMP §309.03(a)(2); see Bell Atlantic Corp. v. Twombly, 550 U.S. 554,
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`570 (2007). An order for a more definite statement is appropriate where the pleading is “so
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`vague or ambiguous that the movant cannot make a responsive pleading in good faith or without
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`prejudice to itself.” TBMP §505.01, citing C. Wright & A. Miller, FEDERAL PRACTICE AND
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`PROCEDURE Civil (3d Ed. 2021) at § 1377.
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`Peloton’s Petition for Cancellation is so vague and ambiguous that, should the Board
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`deny Mad Dogg’s motion to dismiss the action in its entirety as requested above, Mad Dogg
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`cannot in good faith form a response without prejudicing itself.
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`Specifically, Petitioner has failed to adequately identify those marks upon which it bases
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`its claims. Peloton’s Petition claims to assert a group of marks, namely, “spin and spinning,” that
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`is not defined. Although Peloton does not allege that Peloton uses these marks itself, in
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`paragraphs 1–4, 6, 18–20, 22, 28, 30, 35–37, and 39 of the Petition, Peloton conflates these broad
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`and undefined terms:
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`• Paragraph 1: alleging that “[t]he terms SPIN and SPINNING are generic….”;
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`• Paragraph 2: alleging that Mad Dogg and its lawyers have sent cease-and-desist
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`letters to third-parties regarding “uses of the terms SPIN and SPINNING….”;
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`• Paragraph 3: alleging “that ‘spin’ and ‘spinning’ are generic terms to describe a
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`type of exercise bike and associated in-studio class”;
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`• Paragraph 4: conflating “SPIN and SPINNING” as used in an alleged “piece for
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`the online outlet TechDirt”;
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`• Paragraph 6: Requesting a finding that “the terms SPIN and SPINNING [are] generic”;
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`• Paragraph 18: conflating “ ‘SPIN’ and ‘SPINNING’ ” to describe “the ‘brand’
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`name of [Mad Dogg’s] bikes”;
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`• Paragraph 19: conflating “SPIN and SPINNING” to allege and describe Mad
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`Dogg’s trademark registrations;
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`• Paragraph 20: conflating “SPIN and SPINNING” and alleging that “Mad Dogg
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`has no protectable rights in the SPIN and SPINNING terms”;
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`• Paragraph 22: alleging “that ‘spin’ and ‘spinning’ are generic terms” on Google;
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`• Paragraph 28: conflating alleged “Bloomberg” articles which allegedly include
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`the term “spin” in the title, with other alleged “Bloomberg” articles which
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`allegedly include the term “spinning” in the title;
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`• Paragraph 30: conflating alleged “TIME Magazine” article allegedly entitled “
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`‘Why You Should Rethink Your Spinning Obsession,’ ” by also alleging that said
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`article “discuss[ed] the benefits and downsides to spin classes”;
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