Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1226844
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`Filing date:
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`08/04/2022
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`92080112
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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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`Attachments
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`Defendant
`Chipsticks LLC
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`SCOTT MYERS
`CHIPSTICKS LLC
`309 CALLE DE ANDALUCIA
`REDONDO BEACH, CA 90277
`UNITED STATES
`Primary email: scottyemyers@gmail.com
`Secondary email(s): scottmyers@chipsticks.llc
`310-924-0359
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`Response to Board Order/Inquiry
`
`Scott Myers
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`scottmyers@chipsticks.llc
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`/Scott Myers/
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`08/04/2022
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`Reply To Order On Cancellation Proceedings Requiring Pleadings to Be At-
`tached.pdf(179152 bytes )
`Complaint.pdf(299258 bytes )
`Defendant Response To Complaint.pdf(1727627 bytes )
`Defendant Second Motion To Dismiss.pdf(1318605 bytes )
`Opposition To Motion To Dismiss.pdf(5526974 bytes )
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`

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`Proceeding Number: 92080112
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`RESPONSE IN SUPPORT OF MOTION TO SUSPEND PROCEEDING
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`PENDING CIVIL LITIGATION
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`Scott Myers, for Chipsticks LLC, hereby submits this reply in support of their
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`motion for suspension of proceeding pending civil litigation for the reasons as
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`follows.
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`As mentioned in the motion, this response will use the term “The Plaintiff”
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`as referring to Scott Myers (Sole member and Legal Representative of Chipsticks
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`LLC), and “The Defendant” as referring to Fiatte Kang.
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`Attached you will find the complaint filed in civil court case
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`#2-22-cv-00737-FLA-PLAx. Please keep in mind that the complaint bears a
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`different case number on the front. This was because it was transferred shortly into
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`the process to a different judge, Fernando Aenlle-Rocha.
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`You will also find The Defendant’s answer to the complaint, The
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`Defendant’s motion to dismiss, and The Plaintiff’s opposition with exhibits. Please
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`

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`take careful note as to the judicial estoppel committed by The Defendant in her
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`attempt to flip flop on likelihood of confusion.
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`This civil action commenced over 6 months ago. The Plaintiff filed the
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`complaint alleging trademark infringement. This is not a trademark registration
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`dispute. This is a trademark infringement dispute as filed in the complaint. “The
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`PTO itself cannot decide issues of trademark infringement, either by way of
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`injunctive relief or damages.” Calista Enters. Ltd. v. Tenza Trading Ltd., No.
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`3:13-cv-01045-SI, at *8 (D. Or. Nov. 19, 2013). The Defendant has now attempted
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`to challenge the validity of the mark. However, the trademark is deemed valid until
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`proven otherwise by The Defendant. See Bhasin v. C & H Clubs, Inc., 2017 WL
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`5973280 at *2 (C.D. Cal. July 28, 2017). “Second, the TTAB proceedings are
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`subject to relitigation, which makes deferral to the TTAB inefficient where pending
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`infringement claims are at issue.” Calista Enters. Ltd. v. Tenza Trading Ltd., No.
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`3:13-cv-01045-SI, at *7 (D. Or. Nov. 19, 2013). Further, the cancellation of a
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`registration does not invalid the trademark. See 3 J. Thomas McCarthy, McCarthy
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`on Trademarks and Unfair Competition § 19:3 (4th ed. 2005).
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`It is well settled that those district courts have the authority to cancel
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`trademarks if they deemed them invalid. See 15 U.S.C. § 1119.
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`

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`The Defendant has cited Tigercat Int’l, Inc. v. Caterpillar Inc., No. 16-1047
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`(D. Del. May 2, 2018), as the only case law to support their reason for denying the
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`motion to suspend and their attempt to get the civil proceedings suspended pending
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`the TTAB outcome. However, the only reason why that case was suspended
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`pending the TTAB proceeding was because of how far along the TTAB proceeding
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`had gone before the start of the civil action. To reiterate, in that case a TTAB
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`proceeding was already in progress before the civil action. However, the civil
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`action here started months before this.
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`In that same case, “The TTAB proceeding has been pending for three years
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`and was nearing completion at the time Tigercat filed its Complaint. (D.I. 7 at 2-3.)
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`As noted above, discovery before the TTAB was extensive: consisting of 106
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`interrogatories, 172 document requests, 332 requests for admission, the production
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`of 35,000 pages of documents, and 22 depositions.” Tigercat Int'l, Inc. v.
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`Caterpillar Inc., Civil Action No. 16-cv-1047-GMS, at *9 (D. Del. May 2, 2018).
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`The Defendant says that “This is the same case here.” This isn’t remotely close to
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`true.
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`The Defendant cites no other case law supporting their position. Again, the
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`issue The Plaintiff, Scott Myers, raises is one of trademark infringement. This is
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`

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`the action in civil court. The Defendant has decided to commit judicial estoppel
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`and attempt to switch venues stating a validity defense. The Plaintiff also notes that
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`the only reason why The Defendant initiated the proceeding was due to a threat to
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`The Plaintiff. They threatened to only file the petition if The Plaintiff did not drop
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`the civil litigation. This motion here isn’t an attempt to make arguments as to
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`whether the mark is valid or not as that would be determined in the civil court.
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`However, the registration certificate “shall be prima facie evidence of the validity
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`of the registered mark.” See 15 U.S.C. § 1057(b). But again, the invalidity of a
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`registration does not mean that there are no trademark rights.
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`If this suspension were denied it would be extremely prejudicial to The
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`Plaintiff's rights to his trademark. In the same case as cited by The Defendant,
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`“Tigercat, on the other hand, will not receive a binding and prompt declaration of
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`its rights in its mark to which it is entitled. See Rhoades, 504 F.3d at 1164
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`("[W]here as here, there is a potential infringement lawsuit, federal courts are
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`particularly well-suited to handle the claims so that parties may quickly obtain a
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`determination of their rights without accruing potential damages."); Goya, 846 F.2d
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`at 854 ("Whether a litigant is seeking to halt an alleged infringement or, as in this
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`case, seeking a declaration of non-infringement, it is entitled to have the
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`infringement issue resolved promptly so that it may conduct its business affairs in
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`accordance with the court's determination of its rights."). Tigercat Int'l, Inc. v.
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`Caterpillar Inc., Civil Action No. 16-cv-1047-GMS, at *13 (D. Del. May 2, 2018).
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`Therefore, The Plaintiff, Scott Myers, as sole member and legal
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`representative of Chipsticks LLC suspend this action pending civil litigation
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`pursuant to TBMP § 510.02(a).
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`I declare under penalty of perjury under the laws of the State of California that the
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`foregoing and referenced documents are true and correct.
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`Dated August 4th, 2022
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`____________________
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`Scott Myers
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and accurate copy of the foregoing has been served upon
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`all parties of record on August 4th, 2022 via electronic mail.
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`____________________
`
`Scott Myers
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`

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`Case 2:22-cv-00737-FLA-PLA Document 1 Filed 01/31/22 Page 1 of 3 Page ID #:1
`~Ue. Pa, d
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`Name: scoot Myers
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`2
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`f~CIdCeSS: 309 Calle De Andalucia
`
`So~~~
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`Redondo Beach, CA 90277
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`Phone: 31U-924-0359
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`c~eR►c u.a. ~sna T coc~r
`J AN 3 1 2022
`ClNTiiAL DKTRICsT pfd GLIF
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`Email: scottmyers
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`psticks.11c
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`In Pro Per
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`UNITE D S TATE S DIS TR IC T C OUR T
`CE NTR AL DIS TR IC T OF C ALIF OR NIA
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`~7 ~ ) —
`~ ~S ~ ~~~~
`Scott Myers
`O O j j ~~
`309 Calle De Andalucia, Redondo Beach, CA 90277
`Plaintiff To be supplied by the C lerk of
`The United S tates District C ourt
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`v.
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`Piatte Kang
`525 S Berendo S l #4U7, Los Angeles, CA 90020
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`Defendant(s).
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`C OMPLAINT FOR DAMAGE S PUR S UANT TO
`15 U.S .C. § 1051 et seq (The Lanham Act of 1946).
`DE MAND FOR J UR Y TR IAL
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`Plaintiff, S cott Myers for its C omplaint against Defendant F iatte Kang, alleges as follows:
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`THE PAR TIE S
`1. Plaintiff S cott Myers with a principal place of business at 309 C alle De Andalucia, R edondo
`Beach, C alifornia 90277. S cott Myers sells a product "C hipsticks", described as an "easy to use,
`one-piece, chopstick-like utensil designed for eating sticky and greasy foods." The representative is
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`Scott Myers.
`2. Defendant F iatte Kang with a principal place of business at 311 S Gramercy Pl Unit 401, Los
`Angeles, C A 90020. The company sells a product "C hip-stick" described as "S oft touch silicone
`tong, perfect for chips." The representative is F iatte Kang.
`VE NUE AND J UR IS DIC TION
`3. J urisdiction is proper in this court because this litigation arises under federal law, namely
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`PLEADING PACE FOR A COMPLAINT
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`Case 2:22-cv-00737-FLA-PLA Document 1 Filed 01/31/22 Page 2 of 3 Page ID #:2
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`1 17 U.S.C. 4 1051 et seq. (Lanham Act). The Court has jurisdiction over this action under
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`28 U.S.C. 4 1331 (federal question), 28 U.S.C. 4 1338(a) (trademarks), and 28 U.S.C. g 2201
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`(Declaratory Judgment Act).
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`4. This Court has personal jurisdiction over Fiatte Kang because Fiatte Kang, on information a
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`belief, conducts business in the State of California and within this district, including the sale of its
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`products through the Internet to California residents.
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`5. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and 1391(c).
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`FACTUAL BACKGROUND
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`6. This action arises from trademark infringement pursuant to the Lanham Act. The plaintiff
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`alleges the defendant used in commerce, the plaintiff s trademark "Chipsticks" SN #90308500 RN
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`#6549157, on a product/service that is in direct competition and leads to a "likelihood of confusion"
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`under 15 U.S.L. g 1051 et seq (The Lanham Act of 1946).
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`7. Scott Myers sells an easy to use, chopstick-like utensil designed for eating greasy and sticky
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`foods. Chipsticks is sold in the United States on both Amazon and on Chipsticks' own website.
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`8. Scott Myers recently learned that Fiatte Kang has been selling a utensil designed for eating
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`greasy and sticky foods on Amazon under the name "Chip-Stick."
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`9. In addition, Fiatte Kang also uses a similar slogan "Saw NAH to messy greasy fingers" to the
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`one pending registration "Say goodbye to greasy hands," also owned by Scott Myers
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`10. Scott Myers mailed Fiatte Kang a cease and desist letter via USPS certified mail on December
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`21st 2021, in which the defense did not respond to our demand that they cease use of the name
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`"Chip-Stick."
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`STATEMENT OF CLAIM: TRADEMARK INFRINGEMENT
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`1 1. Scott Myers repeats and realleges all of the allegations in all of the paragraphs above as
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`though fully set forth herein.
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`12. Fiatte Kang is in direct infringement of Scott Myers' trademark "Chipsticks" SN #90308500
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`RN #6549157, by selling not only a near identical product, but using a name that causes a likelihooc
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`of confusion to make customers believe that they are purchasing products made and sold by Scott
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`Myers when in fact, they are not.
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`CV-126 (09/09)
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`PLEADING PAGF. FOR A COMPLAINT
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`Case 2:22-cv-00737-FLA-PLA Document 1 Filed 01/31/22 Page 3 of 3 Page ID #:3
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`13. Fiatte Kang utilizes the social media usernames on both Tik Tok and Instagram
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`"chipsticksofficial," further causing confusion to customers.
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`~' 14. Fiatte Kang has no registration for trademarks under the name, and first used their product
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`in commerce on February 17th, 2021, which is just over two weeks after Scott Myers used his
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`trademark in commerce on February lst, 2021.
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`15. In addition to first use in commerce on February 1st, 2021, Scott Myers filed the trademark a
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`intent-to-use on November 9th, 2020 under 15 U.S.C. § 1051 § 1 4 b under the Trademark Law
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`Revision Act (TLRA) of 1988, which further protects our mark.
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`PRAYER FOR RELIEF
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`WHEREFORE, Scott Myers respectfully requests that the court:
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`16. Enter judgment according to the declaratory relief sought;
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`17. Award Scott Myers its costs in this action;
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`18. Permanent injunction against Fiatte Kang and related parties from using the name
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`"Chip-Stick" or anything similar;
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`19. Monetary damages in the amount no less than $150,000;
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`20. Enter such other relief to which Scott Myers may be entitled as a matter of law or equity, or
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`which the Court determines to he just and proper.
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`DEMAND FOR JURY TRIAL
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`Pursuant to Federal Rule of Civil Procedure 38 and Civil Local Rule 3-6, Scott Myers hereby
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`demands a jury trial on all issues so triable.
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`Dated: January 28th, 2022
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`Self Represented by Scott Myers
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`By.
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`~~Z~~
`
`SCOTT MYERS
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`CV-126 (09/09)
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`PLEADING PAGE FOR A CODIPLAINT
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`

`

`se 2:22-cv-00737-FLA-PLA Document 19
`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 1 of 31 Page ID #:154
`
`Fiatte Kang
`265 S Western Avenue #74365
`Los Angeles, CA 90004
`Email: fiattekang@gmail.com
`
`QM2MAY 16 91:0: 07
`
`oy
`
`Filed 05/16/22 Page 1of31 Page ID #:154
`
`
`OOO™NOHOo&Gfo
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`UNITED STATES DISTRICT COURT
`
`GENERAL DISTRICT OF CALIFORNIA
`
`
`
`S.
`
`
`
`
`
`CHIPSTICKS LLC, A CALIFORNIA
`Case No.:
`2:22-C V-00737-FLA-PLAx
`LLC, 309 CALLE DE ANDALUCIA,
`
`DONDO BEACH CA90277
`
`
`
`Plaintiff,
` ANSWER TO COMPLAINT
`
`
`
`
`FIATTE KANG,
`65 S WESTERN AVENUE#74365
`
`
`
`
`LOS ANGELES, CA 90004
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`Defendant
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`TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE:
`
`FERNANDO L. AENLLE-ROCHA
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`COME NOW,Defendant FIATTE KANG,herebyfile this Answerto Plaintiff’s
`
`Complaint.
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`Dated this 15" day of May 2022.
`
`
`
`ANSWER TO COMPLAINT- 1
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`
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 2 of 31 Page ID #:155
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`~~1
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`~~
`
`FIATTE KANG IS A YOUNG WOMAN WHO IS BORN AND
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`RAISED IN LOS ANGELES, CALIFORNIA. SHE WAS RAISED BY PARENTS
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`FROM KOREAN HERITAGE WHO CAME TO THE U.S IN THEIR SEARCH:
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`TO PROVIDE A BETTER LIFE AND EDUCATION FOR THEIR FAMILY.
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`1
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`FIATTE KANG WAS A STRAIGHT A STUDENT AT UNIVERSITY OF
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`CALIFORNIA, IRVINE AND IS CURRENTLY SERVING HER COMMUNITY
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`BY WORKING FOR KAISER PERMANENTE. IN HER SPARE TIME SHE IS
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`AN AVID ANIMAL LOVER WHO HAS DEDICATED HER TIME TO
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`COMMUNITY WORK AT ANIMAL SHELTERS IN THE L.A AREA AND
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`TAKING CARE OF ANIMALS FOR THOSE IN HER SURROUNDINGS THAT
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`DON'T HAVE THE NEED OR TIME TO DO SO THEMSELVES.
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`DEFENDANT FIATTE KANG HAS A PASSION FOR FASHION, FOOD AND
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`LITTLE GADGETS THAT MAKE LIVES EASIER. FIATTE KANG IS A
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`ti
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`DILIGENT WORKER WHO SPENDS LONG DAYS AND MANY HOURS
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`A NSWER TO COMPLAINT - 2
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`

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`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 3 of 31 Page ID #:156
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`BEHIND A COMPUTER SCREEN. SHE IS ALSO A BIG SNACKER AND
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`HAS A PROFOUND LOVE FOR SNACKING ON HOT CHEETOS CHIPS
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`WHILE WORKING.
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`HOWEVER, THE SNACK WILL DYE YOUR FINGERS RED, LEAVE
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`i
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`t
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`CRUMBS EVERYWHERE AND IMPRINT GREASE MARKS, MAKING IT
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`INCONVENIENT TO TOUCH REMOTES, MOUSES AND KEYBOARDS
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`WITHOUT HAVING TO WASH YOUR HANDS. IN ORDER TO KEEP HER
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`FINGERS CLEAN, SHE WOULD USE TRADITIONAL CHOPSTICKS TO EAT
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`THE CHIPS, AND OFTEN PONDERED IF THERE WAS ANY PRODUCT O
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`IN THE MARKET THAT WOULD MAKE IT EASIER TO SNACK BEHIND A
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`COMPUTER SCREEN.
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`SPENDING WEEKS ONLINE LOOKING FOR SNACK GADGETS LED TO
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`ZERO SATISFACTORY RESULTS, SO SHE DECIDED TO DESIGN ONE
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`HERSELF FROM SCRATCH AND THE FUN IDEA FOR CHIP-STICK
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`A NSWER TO COMPLAINT - 3
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`

`

`se 2:22-cv-00737-FLA-PLA Document19 Filed 05/16/22 Page 4of31 Page ID #:167
`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 4 of 31 Page ID #:157
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`CONOOPWwND=
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`1
`
`1
`
`WAS BORN. WHILE DRAWING UP HER DESIGN FROM SCRATCH,SHE
`WAS BORN. WHILE DRAWING UP HER DESIGN FROM SCRATCH, SHE
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`WAS THINKING OF A CATCHY NAME DEEMED APPROPRIATE FOR THE
`WAS THINKING OF A CATCHY NAME DEEMED APPROPRIATE FOR THE
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`GADGET AND DEFENDANT CAME UP WITH THE NAME“CHIP-STICK”.
`GADGET AND DEFENDANT CAME UP WITH THE NAME "CHIP-STICK".
`
`DEFENDANTFIATTE KANG DID HER DUE DILIGENCE AND
`DEFENDANT FIATTE KANG DID HER DUE DILIGENCE AND
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`PERFORMED A THOROUGH INTERNET SEARCH THROUGH THE USPTO
`PERFORMED A THOROUGH INTERNET SEARCH THROUGH THE USPTO
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`WEBSITE AND A GOOGLE SEARCH ENGINE MATCH FOR A PRODUCT
`WEBSITE AND A GOGGLE SEARCH ENGINE MATCH FOR A PRODUCT
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`WITH THAT NAME TO AVOID ANY CONFLICTSOF INTEREST. ZERO
`WITH THAT NAME TO AVOID ANY CONFLICTS OF INTEREST. ZERO
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`RESULTS CAME BACK AT THE TIME OF THE SEARCH IN APRIL 2020.
`RESULTS CAME BACK AT THE TIME OF THE SEARCH IN APRIL 2020.
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`THE NAME CHIP-STICK WAS NOT BEING USED TO THE BEST OF HER
`THE NAME CHIP-STICK WAS NOT BEING USED TO THE BEST OF HER
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`KNOWLEDGE AND THE INFORMATION AVAILABLE ON GOOGLE AND
`KNOWLEDGE AND THE INFORMATION AVAILABLE ON GOGGLE AND
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`THE USPTO WEBSITE. FIATTE KANG CONTINUED THE CREATIVE
`THE USPTO WEBSITE. FIATTE KANG CONTINUED THE CREATIVE
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`PROCESS, INVENTED AND DESIGNED FROM ORIGINAL DRAWINGS
`PROCESS, INVENTED AND DESIGNED FROM ORIGINAL DRAWINGS
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`HER SNACK GADGET PRODUCT AND CALLED IT “CHIP-STICK”.
`HER SNACK GADGET PRODUCT AND CALLED IT "CHIP-STICK".
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`CHIP-STICK WAS DESIGNED BY FIATTE KANG IN EARLY 2020 AND
`CHIP-STICK WAS DESIGNED BY FIATTE KANG IN EARLY 2020 AND
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`AFTER RECEIVING LOTS OF POSITIVE FEEDBACK ON THE DESIGN
`AFTER RECEIVING LOTS OF POSITIVE FEEDBACK ON THE DESIGN
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`ANSWER TO COMPLAINT- 4
`A NSWER TO COMPLAINT - 4
`
`

`

`se 2:22-cv-00737-FLA-PLA Document19 Filed 05/16/22 Page5of31 Page ID #:158
`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 5 of 31 Page ID #:158
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`©MOn~OMOFGPS=
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`4
`
`1
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`1
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`AND FUNCTIONALITY OF THE PRODUCT FROM FRIENDS AND
`AND FUNCTIONALITY OF THE PRODUCT FROM FRIENDS AND
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`WORKING PROFESSIONALS, SHE DECIDED TO PUT THE IDEA INTO
`WORKING PROFESSIONALS, SHE DECIDED TO PUT THE IDEA INTO
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`MOTION AND PLACED HER DESIGN INTO PRODUCTION WITH
`MOTION AND PLACED HER DESIGN INTO PRODUCTION WITH
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`SUPPLIER IN SUMMER 2020. THE ENTIRE IDEA BEHIND CHIP-STICK
`SUPPLIER IN SUMMER 2020. THE ENTIRE IDEA BEHIND CHIP-STICK
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`WAS TO PURSUE A CREATIVE OUTLET, SEE IT ALL THE WAY THROUGH
`WAS TO PURSUE A CREATIVE OUTLET, SEE IT ALL THE WAY THROUG
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`AND EXPERIENCE THE CREATION PROCESS OF AN ORIGINAL IDEA.
`AND EXPERIENCE THE CREATION PROCESS OF AN ORIGINAL IDEA.
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`AS MENTIONED, THE DEFENDANT DID HER DUE DILIGENCE IN EARLY
`AS MENTIONED, THE DEFENDANT DID HER DUE DILIGENCE IN EARLY
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`2020 WHEN SETTLING ON THE NAMECHIP-STICK AND AT THAT TIME
`2020 WHEN SETTLING ON THE NAME CHIP-STICK AND AT THAT TIME
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`NO MATCHES WERE FOUND. SEE EXHIBIT 1
`NO MATCHES WERE FOUND. SEE EXHIBIT 1
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`AT NO MOMENTIN TIME WAS THE DEFENDANT AWARE OF
`AT NO MOMENT IN TIME WAS THE DEFENDANT AWARE OF
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`PLAINTIFF’S USE OF THE NAME“CHIPSTICKS” NOR THE PLAINTIFF’S
`PLAINTIFF' S USE OF THE NAME "CHIPSTICKS" NOR THE PLAINTIFF' S
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`PRODUCTS.
`PRODUCTS.
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`AT NO MOMENTIN TIME WAS THE DEFENDANT AWARE OF
`AT NO MOMENT IN TIME WAS THE DEFENDANT AWARE OF
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`ANSWER TO COMPLAINT - 5
`A NSWER TO COMPLAINT - S
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`

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`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 6 of 31 Page ID #:159
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`PLAINTIFF' S INTENT TO USE TRADEMARK APPLICATION FILING.
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`AT NO MOMENT IN TIME DID THE DEFENDANT INTEND TO CREATE A
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`LIKELIHOOD OF CONFUSION BETWEEN CHIP-STICK AND CHIPSTICKS.
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`DEFENDANT ONLY LEARNED ABOUT THE EXISTENCE OF PLAINTIFF'S
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`CHIPSTICKS THROUGH THE CEASE AND DESIST LETTER THAT WAS
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`RECEIVED ON DECEMBER 22ND 2021.
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`AT NO MOMENT IN TIME DID THE DEFENDANT SEE, HEAR, OR ORDER
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`THE PLAINTIFFS PRODUCT, CHIPSTICKS, UNTIL RECEIPT OF THE
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`CEASE AND DESIST LETTER THAT WAS SENT BY PLAINTIFF ON
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`DECEMBER 20TH 2021.
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`DEFENDANT FIATTE KANG IS A YOUNG WOMAN WHO PLACES
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`HONESTY AND INTEGRITY AT THE TOP OF HER PRIORITY LIST. WHEN
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`DEFENDANT RECEIVED THE CEASE AND DESIST LETTER FROM
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`si
`
`t
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`i
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`ANSWER TO COMPLAINT - E)
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`

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`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 7 of 31 Page ID #:160
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`PLAINTIFF, SHE CEASED AND DESISTED THE USE OF THE NAME
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`CHIP-STICK TO COMPLY WITH PLAINTIFF' S REQUEST.
`
`AFTER CAREFULLY REVIEWING THE PLAINTIFF'S STATEMENTS, THE
`
`DEFENDANT IS OF THE OPINION THAT THE PLAINTIFF'S STATEMENTS
`
`1
`
`ARE NOT COMPLETE AND NOT CORRECT.
`
`DEFENDANT FIATTE KANG WAS THE ORIGINAL AND FIRST USER OF
`
`THE NAME CHIP-STICK, BEFORE PLAINTIFF STARTED USING THIS
`
`FILED FOR TRADEMARK PROTECTION.
`
`i M
`
`DEFENDANT FIATTE KANG DID HER DUE DILIGENCE ON NAME AND
`
`PRODUCT IN SPRING APRIL 2020.
`
`DEFENDANT FIATTE KANG CREATED AN AMAZON ACCOUNT IN JUNE
`
`2020 WITH THE INTENTION TO USE FOR COMMERCE. PLEASE REFER
`
`TO EVIDENCE #1
`
`ANSWER TO COMPLAINT - 7
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 8 of 31 Page ID #:161
`
`DEFENDANT FIATTE KANG PLACED THE ORDER FOR CHIP-STICK
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`WITH HER SUPPLIER IN AUGUST 2020 AND RECEIVED ORIGINAL
`
`PRODUCT PROTOTYPE IN JULY 2020.
`
`DEFENDANT FIATTE KANG DID NOT MOVE TO FILE FOR TRADEMARK
`
`USAGE DUE TO THE FACT THAT THIS WAS HER FIRST EFFORT TO
`
`CREATE A PRODUCT OF THIS NATURE AND WANTED TO SEE HOW IT
`
`WOULD BE RECEIVED FIRST BEFORE GETTING INTO THE LEGAL
`
`COMPLEXITIES OF TRADEMARK AND PATENT FILINGS IF ANY.
`
`ACCORDING TO STATEMENTS BY PLAINTIFF SCOTT MYERS,
`
`PLAINTIFF FORMED THE COMPANY CHIPSTICKS, LLC ON OCTOBER
`
`3RD, 2020.
`
`MR MYERS FILED THE INTENT TO USE TRADEMARK APPLICATION ON
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`NOVEMBER 9TH 2020.
`
`A
`
`i
`
`1
`
`~' .
`
`r
`
`ANSWER TO COMPLAWT - S
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 9 of 31 Page ID #:162
`
`PLAINTIF F ' S INTE NT TO US E THE NAME AND PR ODUCT WAS AFTE R
`
`THE DE F E NDANT HAD ALR E ADY CR E ATE D AND PLAC E D AN OR DE R
`
`F OR PR ODUC TION OF DE F E NDANT' S PR ODUCT.
`
`IT IS E MINE NT THAT THE DE F E NDANT F IATTE KANG WAS THE FIR S T
`
`1
`
`PAR TY TO US E THE NAME C HIP-S TIC K. UNDE R THE TR ADE MAR K LAW
`
`RE VIS ION AC T OF 1988 AND MOR E S PE CIFICALLY 37 C.F.R .
`
`~2.34(Al~ll(III~III~ , 37 C.F.R . ~&2.768)(1)(III~,2.8881~11(III~, IT IS E MINE N'
`
`4
`
`THAT DE F E NDANT'S PR ODUCT "C HIP-S TIC K" HAD A FIR S T DATE OF
`
`US E PR IOR TO PLAINTIF F 'S PR ODUCT OF CHIPS TICKS . UNDE R CFR
`
`2.34 IT IS ALS O C LE AR THAT DE F E NDANT'S "DATE OF US E ", "DATE OF
`
`COMME R C E ", "DATE OF S PE C IME N" S HOWING MAR K IN C OMME R C E ,
`
`AND BONA F IDE INTE NTION TO US E THE MAR K IN C OMME R C E , ALL
`
`PR E CE DE ANY OF THE PLAINTIF F 'S F ILINGS , ANY OF THE PLAINTIF F '
`
`US E OF C OMME R C E OR ANY OF THE PLAINTIF F ' S US E OF DATE ON
`
`RE C OR D. PLE AS E R E F E R TO E VIDE NC E #2
`
`~I
`
`~►
`
`ANS WE R TO C OMPLAINT - 9
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 10 of 31 Page ID #:163
`
`CHIP-STICK HAS VERIFIED PROOF AND OFFICIAL DOCUMENTATION
`
`ON HAND TO SUPPORT AFOREMENTIONED CLAIMS.
`
`HOWEVER, DEFENDANT FIATTE KANG'S CHARACTER IS NOT ONE OF
`
`CONFRONTATION NOR ARGUING. DEFENDANT FIATTE KANG IS A
`
`FIRM BELIEVER IN HONESTY AND INTEGRITY AND DOING THE RIGHT
`
`THING. DEFENDANT DECIDED TO ACT IN GOOD FAITH AND TO
`
`COMPLY WITH PLAINTIFF'S CEASE AND DESIST REQUEST, DESPITE
`
`THE AFOREMENTIONED FACTS AND HER OPINION THAT SHE HAS
`
`FULL RIGHTS TO THE NAME CHIP-STICK.
`
`i
`
`~"
`
`w
`
`DEFENDANT FIATTE KANG DEACTIVATED THE SOCIAL MEDIA
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`INSTAGRAM ACCOUNT AND AMAZON ACCOUNT FOR CHIP- STICK ON
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`JANUARY 4th AND 5th RESPECTIVELY, WITHIN THE 14 DAYS OF
`
`RECEIVING THE CEASE AND DESIST LETTER FROM THE PLAINTIFF,
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`THEREFORE COMPLYING 100% WITH HIS REQUEST. PLEASE REFER
`
`A NSWER TO COMPLAINT - I O
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 11 of 31 Page ID #:164
`
`TO EVIDENCE # 3
`
`DEFENDANT FIATTE KANG MOVES TO DISMISS THE CASE WITHOUT
`
`PREJUDICE.
`
`1
`
`DEFENDANT FIATTE KANG IS RESPECTFUL OF THE COURTS TIME ANI
`
`RESOURCES AND BELIEVES THE COURT'S ENERGY IS BETTER SERVEI
`
`TO CASES THAT REQUIRE THE COURTS EXPERTISE AND ATTENTION
`
`FOR MATTERS THAT REALLY ARE IN A CONFLICT SITUATION.
`
`DEFENDANT FIATTE KANG MOVES TO SEEK CONSERVATIVE
`
`COMPENSATORY DAMAGES FOR COUNSEL FEES IN THE AMOUNT OF
`
`$3,000 (THREE THOUSAND U.S DOLLARS).
`
`s
`
`s
`
`A NSWER TO COMPLAINT -~ I
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 12 of 31 Page ID #:165
`
`ANSWER TO COMPLAINT
`
`1. Plaintiff Chipsticks LLC, a California Limited Liability Company with a
`
`principal place of business at 309 Calle De Andalucia, Redondo Beach
`
`California 90277. The company sells a product Chipstick", described as an
`
`"easy to use, one-piece, chopstick-like utensil designed for eating sticky and
`
`1
`
`greasy foods." The representative is the Chief Executive Officer and Sole
`
`Managing Member Scott Edward Myers.
`
`ADMITTED
`
`2. Defendant Fiatte Kang with a principal place of business at 311 S Gramercy
`
`Pl Unit 401, Los Angeles, CA 90020. The company sells a product " Chip-
`
`stick" described as "Soft touch silicone tong, perfect for chips." The
`
`i
`
`representative is Fiatte Kang.
`
`DENIED AS WRITTEN:
`
`Place of business is 265 S Western Ave #74365 Los Angeles, CA 90004.
`
`Fiatte Kang is an individual, not a company. The product "Chip-Stick" was
`
`sold by Fiatte Kang individually.
`
`ANSWER TO COMPLAINT - I Z
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 13 of 31 Page ID #:166
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`3. Jurisdiction is proper in this court because this litigation arises under federal
`
`law, namely 17 U.S.0 1051 et seq. (Lanham Act). The Court has jurisdiction
`
`over the action 28. U.S.0 1331 (federal question), 28 U.S.0 1338 (a)
`
`(trademarks) and 28 U.S.C. 2201 (Declaratory Judgment Act).
`
`UNABLE TO ADMIT DUE TO LACK OF KNOWLEDGE
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`4. This court has personal jurisdiction over Fiatte Kang because Fiatte Kang,
`
`on information and belief, conducts business in the State of California and
`
`within this district, including the sale of its products through the Internet to
`
`California residents.
`
`ADMITTED
`
`5. Venue is proper in the district under 28 U.S.0 1391(b) and 1391 (c)
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`UNABLE TO ADMIT DUE TO LACK OF KNOWLEDGE
`
`4
`
`i
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`1
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`ANSWER'1'O COMPLAINT - I3
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 14 of 31 Page ID #:167
`
`ANSWER TO FACTUAL BACKGROUND
`
`6. This action arises from trademark infringement pursuant to the Lanham Act.
`
`The plaintiff alleges the defendant used in commerce, the plaintiff's
`
`trademark "Chipsticks" SN #90308500 RN #6549157, on a product/service
`
`that is in direct competition and leads to a "likelihood of confusion" under
`
`1
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`15 U.S.C. 1051 et seq (The Lanham Act of 1946).
`
`DENIED AS WRITTEN
`
`Defendants' Chip-Stick has never infringed on Plaintiffs trademark.
`
`Defendant's Chip-Stick has a different design, size, material, color and
`
`different experience from Plaintiffs' "Chipsticks".
`
`Product does not lead to confusion due to completely different design, size,
`
`1
`
`material, color, marketing and writing of the actual name: Chip-Stick vs
`
`Chipsticks.
`
`7. Chipsticks LLC sells an easy to use, chopstick-like utensil designed for
`
`eating greasy and sticky foods. Chipsticks is sold in the United States on
`
`both Amazon and on Chipsticks' own website.
`
`A NSWER TO COMPLAINT - I4
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 15 of 31 Page ID #:168
`
`DE NIE D AS WR ITTE N: S earch on Amazon resulted in zero results for
`
`Chipsticks LLC or Chipsticks. The first 5 pages on that search term did not
`
`result in the Plaintiff's product, but did result in another product called
`
`~►
`
`"C hipstick".
`
`Website of Plaintiff's Chipsticks was registered on October 9`" 2020, way
`
`after the Defendant had created its Amazon account for the product
`
`Chip-S tick. PLE AS E R E F E R TO E VIDE NC E #1
`
`8. Chipsticks LLC recently learned that Fiatte Kang has been selling a utensil
`
`designed for eating greasy and sticky foods on Amazon under the name
`
`"C hip-S tick."
`
`DE NIE D AS WR ITTE N: DE F E NDANT HAS NOT US E D THE
`
`WOR DS "S TIC KY F OODS "
`
`9. In addition, Fiatte Kang also uses a similar slogan "S aw NAH to messy
`
`greasy fingers" to the one pending registration under Chipsticks LLC "S ay
`
`goodbye to greasy hands."
`
`i
`
`DE NIE D:
`
`ANS WE R TO C OMPLAINT - IS
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 16 of 31 Page ID #:169
`
`The slogan that the Plaintiff is claiming that the Defendant is using has been
`
`quoted incorrectly. The correct slogan for the Defendant is "Say NAH to
`
`messy greasy fingers."
`
`Secondly, there is no similarity between the Defendants slogan and Plainti
`
`,~
`
`slogan. The only common word in both slogans is the word "greasy". Every
`
`other word has no similarity.
`
`Defendant Fiatte Kang had created the Instagram account for Chip-stick
`
`with the respective quote on October 24t", 2020 and the first post was
`
`launched December lsr, 2020.
`
`Plaintiff's first post on Instagram with "chipsticks llc" was on March 27th,
`
`2021, months after the launch of Defendants social media and active posting
`
`PLEASE REFER TO EVIDENCE #4
`
`10. Chipsticks LLC mailed Fiatte Kang a Cease and Desist letter via USPS
`
`certified mail on December 21 S` 2021, in which the defense did not respond
`
`ANSWER TO COMPLAINT - IE)
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 17 of 31 Page ID #:170
`
`to our demand that they cease use of the name "Chip Stick."
`
`DENIED
`
`After Defendant learned about Chipsticks LLC through the Cease and Desist
`
`4
`
`i
`
`letter, Defendant desired to act in good faith, resolve matters amicably, and
`
`comply with Plaintiffs' wish to cease use of the name Chip-Stick. Plaintiff
`
`claimed in the Cease and Desist letter that there was an infringement of
`
`trademark and ordered the use of the mark on Amazon, social media and
`
`advertising.
`
`Plaintiff sent a letter on December 21st, 2021 and ordered a course of action
`
`or response within 14 days of receipt.
`
`Defendant Fiatte Kang received the letter on December 22nd, 2021.
`
`Defendant Fiatte Kang took action as per instructions of the CEASE AND
`
`ANSWER TO COMPLAINT - 17
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 18 of 31 Page ID #:171
`
`DESIST letter and took Chip-Stick off Amazon and deactivated the social
`
`media account and marketing campaigns in order to comply with the Cease
`
`and Desist from Plaintiff on January 4`" and January 5th, 2022.
`
`PLEASE REFER TO EVIDENCE #3
`
`i
`
`Defendant Fiatte Kang has taken every right course of action to comply with
`
`the Cease and Desist letter.
`
`Plaintiff appears to not recognize the Defendants' move to comply and
`
`moves to unnecessarily create a hostile environment where Defendant feels
`
`an immense emotional and mental toll on a daily basis, as well as an
`
`immense waste of time and energy since the Cease and Desist order that was
`
`fulfilled to the Plaintiff's wish.
`
`Defendant is not interested in emotional and mental distress. Defendant
`
`moves to dismiss this case without prejudice in order to respect the time and
`
`M
`
`s
`
`..
`
`A NSWER TO COMPLAINT -~ S
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 19 of 31 Page ID #:172
`
`energy of the court and the Honorable Judge. Defendant moves to seek
`
`monetary compensation for counsel fees in the amount of $3,000 (Three
`
`thousand dollars) that this case has brought to the Defendant. A case that the
`
`Plaintiff, Scott Myers willingly and actively pursued after the fact that the
`
`Defendant complied with the Plaintiff's Cease and Desist order.
`
`l 1. Chipsticks LLC repeats and realleges all of the allegations in all of the
`
`paragraphs above as though fully set forth herein.
`
`DENIED
`
`12. Fiatte Kang is in direct infringement of Chipsticks LLC's trademark
`
`"Chipsticks" SN #90308500 RN #6549157, by selling not only a near
`
`identical product, but using a name that causes a likelihood of confusion to
`
`make customers believe that they are purchasing products made and sold by
`
`r
`
`a i
`
`Chipsticks LLC when in fact, they are not.
`
`DENIED AS WRITTEN.
`
`Chip-Stick products are substantially different from Chipsticks. Differential
`
`in size, color, design, material and quality. Chip-stick is made from high
`
`A NSWER TO COMPLAINT - I9
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 20 of 31 Page ID #:173
`
`quality materials from an original design as opposed to Plaintiffs'
`
`Chipsticks. Chip-stick has no intention to confuse customers since
`
`Chip-stick products are of a different nature, size, color, quality and design
`
`than chipsticks.
`
`Defendants' product was invented from scratch, designed and produced
`
`before the Plaintiff's product.
`
`Defendant's product was placed in commerce before Plaintiff's products.
`
`Defendant's product was not intended to infringe on any of Plaintiff's
`
`products, intention or usage.
`
`w
`
`1
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`13. Fiatte Kang utilizes the social media usernames on both Tik Tok and
`
`Instagram "chipsticksofficial" further causing confusion to customers.
`
`i
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`DENIED AS WRITTEN:
`
`A NSWER TO COMPLAINT - ZO
`
`

`

`Case 2:22-cv-00737-FLA-PLA Document 19 Filed 05/16/22 Page 21 of 31 Page ID #:174
`
`Fiatte Kang was using the name Chip-S tick way before Plaintiff's efforts.
`
`Defendant initially created the Instagram account _ chipstick_ on October 24"
`
`2020 and changed the n