Petition For Cancellation - United States Patent And

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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.govESTTA Tracking number:Filing date:ESTTA107202307/31/2020IN THE UNITED STATES PATENT AND TRADEMARK OFFICEBEFORE THE TRADEMARK TRIAL AND APPEAL BOARDPetition for CancellationNotice is hereby given that the following party has filed a petition to cancel the registration indicated below.Petitioner InformationNameMattel, Inc.EntityCorporationAddress333 CONTINENTAL BLVD.EL SEGUNDO, CA 90245UNITED STATESAttorney informationJILL M. PIETRINI, ESQ.SHEPPARD MULLIN RICHTER & HAMPTON LLP1901 AVENUE OF THE STARS, SUITE 1600LOS ANGELES, CA 90067UNITED STATESPrimary Email: JPietrini@SheppardMullin.comSecondary Email(s): , RWalsh@SheppardMullin.com, MDanner@SheppardMullin.com, SHwang@SheppardMullin.com, RLHudson@SheppardMullin.com310-228-3700Docket Number0PX7CitizenshipDelawareRegistration Subject to CancellationRegistration No.5745704Registration dateRegistrantDouglas J Lodato115 EAST 34TH STREET, NO 832NEW YORK, NY 10016UNITED STATES05/07/2019Goods/Services Subject to CancellationClass 028. First Use: 2018/09/01 First Use In Commerce: 2019/03/07All goods and services in the class are subject to cancellation, namely: Games and playthings,namely, action figures, toy cars, crib toys, puppets, marionette puppets, toy vehicles, radio controlledtoy vehicles, model toy vehicles, play sets for toy vehicles, play set buildings and houses, stand alonevideo game machines, board games, toy pedal cars, skateboards, toy banks, toy rockets and accessories therefore sold as sets, plush toys, amusement park rides, bobble head dolls, beach toys,namely, beach balls, sand toys, sand toy pails and shovels, sandbox toys, inflatable toys, toy racingsets, in line skates, protective padding for skateboarding and in line skating, toy foam weapons, toycandy dispensers, toy gloves, costume masks, hula dolls, toy goggles, wake boards, water squirtingtoys and toy catapults, water skis, water toys, water wingsGrounds for Cancellation

Priority and likelihood of confusionTrademark Act Sections 14(1) and 2(d)Registrant not rightful owner of mark for identified goods or servicesTrademark Act Sections 14(1) and 1Fraud on the USPTOTrademark Act Section 14(3); In re Bose Corp.,580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir.2009)OtherLack of a Bona Fide Intent to Use the Mark andLack of Bona Fide Use of the MarkMark Cited by Petitioner as Basis for CancellationU.S. ApplicationNo.87402697Application Date04/07/2017Registration DateNONEForeign PriorityDateNONEWord MarkINCREDIBLE CRASH DUMMIESDesign MarkDescription ofMarkNONEGoods/ServicesClass 028. First use: First Use: 0 First Use In Commerce: 0TOYS, GAMES AND PLAYTHINGS, NAMELY, TOYFIGURES AND ACCESSORIES THEREFOR, TOY FIGURE PLAYSETS AND ACCESSORIESTHEREFOR;DOLLS AND ACCESSORIES THEREFOR, DOLL PLAYSETSAND ACCESSORIES THEREFOR; TOY VEHICLES AND ACCESSORIESTHEREFOR, TOY VEHICLE PLAYSETS AND ACCESSORIES THEREFORAttachmentsPetition to Cancel CRASH DUMMIES in Class 28 - Rn. 5,745,704 - Dougla sLodato.pdf(2794981 bytes )Signature/Jill M. Pietrini/NameJill M. Pietrini, Esq.Date07/31/2020

Docket No. 0PX7-165384IN THE UNITED STATES PATENT AND TRADEMARK OFFICEBEFORE THE TRADEMARK TRIAL AND APPEAL BOARDIn re Registration No. 5,745,704 of thetrademark CRASH DUMMIES in Class 28Cancellation No.Mattel, Inc.,PETITION FOR CANCELLATIONPetitioner,vs.Douglas J. Lodato,Registrant.Commissioner for TrademarksATTN: Trademark Trial and Appeal BoardP.O. Box 1451Alexandria, VA 22313-1451Dear Commissioner:Petitioner, Mattel, Inc., a Delaware corporation, having its principal place of business at333 Continental Blvd., El Segundo, CA 90245 (“Mattel”), believes that it will be damaged by thetrademark shown in Reg. No. 5,745,704 (the “Registration”), owned by Registrant Douglas J.Lodato (“Registrant”) having an address of 115 East 34th Street, No. 832, New York, New York10016, and hereby petitions to cancel such registration on the following grounds:FACTUAL BACKGROUND REGARDING MATTEL’SINCREDIBLE CRASH DUMMIES MARKS AND MATTEL’S APPLICATIONTO REGISTER THE INCREDIBLE CRASH DUMMIES1.Mattel is an American multinational toy and consumer products company foundedin 1945. Mattel, through its family of companies, is a world leader in the design, manufactureand marketing of toys, games, playthings, entertainment, clothing, and various consumer-1-

products. Mattel’s portfolio of consumer brands includes American Girl , Barbie , FisherPrice , Hot Wheels , Incredible Crash Dummies , and many others. Mattel has a presence inmore than 35 countries and territories, and sells products in more than 100 nations.2.Mattel owns the trademarks CRASH DUMMIES, INCREDIBLE CRASHDUMMIES, and THE INCREDIBLE CRASH DUMMIES (collectively, the “INCREDIBLECRASH DUMMIES Marks”) and all other rights, including, without limitation, copyrightsassociated with the toys and other goods and services offered under these marks.3.Mattel, through its predecessor-in-interest, first used the mark CRASHDUMMIES for action figures and playsets, including accessories, on December 27, 1991, a datelong prior to the dates of first use claimed by Registrant. Mattel, through its predecessor-ininterest, federally registered the mark CRASH DUMMIES for action figures and playsets,including accessories, on December 7, 1993. Such date also precedes the filing date of interest,firstusedthemarkTHEINCREDIBLE CRASH DUMMIES for action figures and playsets, including accessories, onDecember 27, 1991, a date long prior to the dates of first use claimed by Registrant. Mattel,through its predecessor-in-interest, federally registered the mark THE INCREDIBLE CRASHDUMMIES for action figures and playsets, including accessories, on May 25, 1993. Such datealso precedes the filing date of the Registration.5.Mattel first used the mark INCREDIBLE CRASH DUMMIES for t-shirts onDecember 12, 2008, a date long prior to the dates of first use claimed by Registrant. Mattelfederally registered the mark INCREDIBLE CRASH DUMMIES for t-shirts on February 9,2010. Such date also precedes the filing date of the Registration.6.Mattel first used the mark INCREDIBLE CRASH DUMMIES for posters onDecember 12, 2008, a date long prior to the dates of first use claimed by Registrant. Mattel-2-

federally registered the mark INCREDIBLE CRASH DUMMIES for posters on February 9,2010. Such date also precedes the filing date of the Registration.7.The goods identified by the INCREDIBLE CRASH DUMMIES Marks(collectively, the “INCREDIBLE CRASH DUMMIES” Goods) are of good quality, and therehave been significant sales of such goods. The INCREDIBLE CRASH DUMMIES Goods havebeen favorably received and are otherwise recognized by the consuming public.8.By virtue of the long use of the INCREDIBLE CRASH DUMMIES Marks, thegood quality of the INCREDIBLE CRASH DUMMIES Goods, and the large volume of sales ofsuch goods, Mattel has cultivated significant goodwill in its the INCREDIBLE CRASHDUMMIES Marks.Consumers associate the INCREDIBLE CRASH DUMMIES Markssingularly with Mattel.9.Mattel did not file an affidavit under Section 8 of the Trademark Act to maintaineither its registrations for the INCREDIBLE CRASH DUMMIES Marks. Such registrationswere canceled for failure to file such an affidavit. Notwithstanding the cancellation of Mattel’sregistrations, Mattel has retained common law rights in the INCREDIBLE CRASH DUMMIESMarks. Because of Mattel’s tremendous success and acclaim, consumers have come to associateTHE INCREDIBLE CRASH DUMMIES Marks with Mattel.10.THE INCREDIBLE CRASH DUMMIES Marks are distinctive to Mattel’sproducts and, over the years, have acquired a strong secondary meaning. Mattel’s productsidentified by the INCREDIBLE CRASH DUMMIES Marks continue to be advertised, sold, anddistributed.11.From the time of the cancellation of the registrations of THE INCREDIBLECRASH DUMMIES Marks to the present, Mattel has continued to claim rights in theINCREDIBLE CRASH DUMMIES Marks,12.Mattel owns residual rights and goodwill in the INCREDIBLE CRASHDUMMIES Marks in light of their fame and recognition amongst consumers.-3-

13.On April 7, 2017, Mattel filed an intent-to-use application to registerINCREDIBLE CRASH DUMMIES for use with “toys, games and playthings, namely, toyfigures and accessories therefor, toy figure playsets and accessories therefor; dolls andaccessories therefor, doll playsets and accessories therefor; toy vehicles and accessories therefor,toy vehicle playsets and accessories therefor” in Class 28, which application has been assignedSer. No. 87/402,697 (“Mattel Application”).Attached as Exhibit A are true and correctprintouts from the Office’s TESS and TSDR pages for Mattel’s Application, showing status andtitle of such Application.14.The Mattel Application has been refused by the Office on the grounds of alikelihood of confusion with the Registration.FACTUAL BACKGROUND REGARDING THE REGISTRATION AND PRIORDISPUTE WITH REGISTRANT’S COMPANY15.On September 25, 2014, Registrant applied to register the mark CRASHDUMMIES for “games and playthings, namely, action figures, toy cars, crib toys, puppets,marionette puppets, toy vehicles, radio controlled toy vehicles, model toy vehicles, play sets fortoy vehicles, play set buildings and houses, stand alone video game machines, board games, toypedal cars, skateboards, toy banks, toy rockets and accessories therefore sold as sets, plush toys,amusement park rides, bobble head dolls, beach toys, namely, beach balls, sand toys, sand toypails and shovels, sandbox toys, inflatable toys, toy racing sets, in line skates, protective paddingfor skateboarding and in line skating, toy foam weapons, toy candy dispensers, toy gloves,costume masks, hula dolls, toy goggles, wake boards, water squirting toys and toy catapults,water skis, water toys, water wings” in Class 28, on an intent-to-use basis. The application toregister CRASH DUMMIES was assigned Serial No. 86/406,481.16.On March 7, 2019, Registrant filed a Statement of Use, claiming a date of first useanywhere of September 1, 2018, and in commerce of March 7, 2019.17.On May 7, 2019, the Office issued the Registration.-4-

18.On information and belief, Registrant is the organizer and the managing memberof The Crash Dummy Movie LLC. Attached as Exhibit B are the State of California Articles ofOrganization for The Crash Dummy Movie LLC showing Douglas J. Lodato as the organizerand the managing member.19.On December 22, 2003, Mattel filed a Notice of Opposition with the Board toThe Crash Dummy Movie LLC’s application to register CRASH DUMMIES, Ser. No.76/504,400, which was assigned Opposition No. 91-159002. On November 25, 2008, the Boardsustained Mattel’s claim of priority and likelihood of confusion and refused to register The CrashDummy Movie LLC’s application to register CRASH DUMMIES, Ser. No. 76/504,400. A trueand correct copy of that decision is attached hereto as Exhibit C. The Crash Dummy MovieLLC appealed this decision to the United States Court of Appeals for the Federal Circuit, whichaffirmed the Board’s decision in an opinion issued on April 16, 2010. A true and correct copy ofthat decision is attached hereto as Exhibit D.FIRST BASIS FOR CANCELLATION(Likelihood of Confusion)20.Mattel incorporates by reference the allegations contained in Paragraphs 1 to 1921.Mattel has priority over Registrant and the Registration with respect to theherein.INCREDIBLE CRASH DUMMIES Marks.22.Registrant’s mark CRASH DUMMIES is confusingly similar to theINCREDIBLE CRASH DUMMIES Marks.23.The continued registration of CRASH DUMMIES mark is likely to causeconfusion, mistake, or deception as to the source or origin of, or affiliation, connection, orassociation with, Mattel’s goods offered under the INCREDIBLE CRASH DUMMIES Marks.24.Registrant's CRASH DUMMIES mark is likely to cause confusion, mistake, ordeception as to the source or origin of Registrant’s goods offered under CRASH DUMMIES-5-

mark, and to draw a false association, sponsorship, connection, affiliation, or endorsement withMattel and the INCREDIBLE CRASH DUMMIES Marks.SECOND BASIS FOR CANCELLATION(Fraud on the Office)25.Mattel incorporates by reference the allegations contained in Paragraphs 1 to 2426.On March 7, 2019, Registrant filed his Statement of Use for the applicationherein.underlying the Registration (the “Statement of Use”). To substantiate his claimed use of themark, Registrant submitted as specimens photographs of two toy vehicles in packaging bearingwhat appear to be two oval-shaped decals or digitally-placed logos superimposed overphotographs of toy vehicle packaging bearing the mark CRASH DUMMIES and, in a smallerfont below this, THE CRASH DUMMY MOVIE LLC. Attached as Exhibit E is a true andcorrect copy of Registrant's original specimens from the Office’s online database.27.Upon information and belief, Registrant’s specimen submitted with his Statementof Use reflects, at best, Registrant applying a temporary sticker with his alleged mark on a thirdparty’s toy vehicle packaging.28.On information and belief, at the time of submitting the Statement of Use,Registrant was not using the mark CRASH DUMMIES on all of the goods listed in theApplication, and fabricated his evidence of use for toy vehicles in order to file the Statement ofUse and obtain the Registration.29.Registrant’s application matured to registration for the mark CRASH DUMMIESfor “games and playthings, namely, action figures, toy cars, crib toys, puppets, marionettepuppets, toy vehicles, radio controlled toy vehicles, model toy vehicles, play sets for toyvehicles, play set buildings and houses, stand alone video game machines, board games, toypedal cars, skateboards, toy banks, toy rockets and accessories therefore sold as sets, plush toys,amusement park rides, bobble head dolls, beach toys, namely, beach balls, sand toys, sand toy-6-

pails and shovels, sandbox toys, inflatable toys, toy racing sets, in line skates, protective paddingfor skateboarding and in line skating, toy foam weapons, toy candy dispensers, toy gloves,costume masks, hula dolls, toy goggles, wake boards, water squirting toys and toy catapults,water skis, water toys, water wings” in International Class 28.30.The Registration was issued on May 7, 2019 for all goods identified inRegistrant’s application and the Statement of Use.31.In his Statement of Use, Registrant knowingly misrepresented that he was usingthe mark CRASH DUMMIES on all of the goods for which registration was being sought andknowingly submitted fabricated specimens.32.Registrant fraudulently procured his registration of CRASH DUMMIES becauseat the time that he filed the Statement of Use for the application and signed the correspondingdeclaration under penalty of perjury, Registrant knew that he had only used the mark for toyvehicles (if at all), and not the remaining goods in the application. Registrant intended to deceivethe Office; he knew that his Statement of Use misrepresented the goods on which he had usedthe CRASH DUMMIES mark and that the Office would be misled into believing that theStatement of Use was true. The Office reasonably relied on Registrant’s misrepresentation, asevidenced by its issuance of the registration to Registrant for all of the goods included inRegistrant’s fraudulent application.33.Registrant committed fraud on the Office in his submission of the Statement ofUse for the Application.THIRD BASIS FOR CANCELLATION(Lack of a Bona Fide Intent to Use the Mark)34.Mattel incorporates by reference the allegations contained in Paragraphs 1 to 3335.On information and belief, Registrant did not have a bona fide intent to use theherein.mark shown in the Registration at the time of filing the application underlying the Registration orat any relevant time thereafter.-7-

36.As a result of having no bona fide intent to use at the time of filing or any relevanttime thereafter for any of the goods identified therein, the Registration is void ab initio.FOURTH BASIS FOR CANCELLATION(Lack of Bona Fide Use of the Mark)37.Mattel incorporates by reference the allegations contained in Paragraphs 1 to 3638.On information and belief, Registrant did not make a bona fide use of the markherein.shown in the Registration as of the date he filed the Statement of Use.39.As a result of having no bona fide use of the mark for any of the goods identifiedtherein, the Registration is void ab initio.FIFTH BASIS FOR CANCELLATION(Registrant is not the Owner of the Mark)40.Mattel incorporates by reference the allegations contained in Paragraphs 1 to 3941.Crash Dummy Movie, LLC still exists as a limited liability company and was theherein.prior applicant to register CRASH DUMMIES.42.Rather than Crash Dummy Movie, LLC file the application that matured to theRegistration, Registrant, the organizer and managing member of Crash Dummy Movie, LLC,filed such application.43.On information and belief, Registrant is not the owner of the trademark CRASHDUMMIES, which is the subject of the Registration.44.As a result of filing the application underlying the Registration being filed in thename of someone other than the owner of the mark, such application and the Registration thereofare void ab initio.\\\\\\\\\-8-

DAMAGE TO PETITIONER45.As a result of all of the foregoing, the Registration would cause a likelihood ofconfusion, mistake, affiliation, association, or deception with Mattel, the INCREDIBLE CRASHDUMMIES Marks, and the goods offered by Mattel under the INCREDIBLE CRASHDUMMIES Marks, or as to the origin, or Mattel’s sponsorship or approval, of Registrant’s goodsor commercial activities.46.Mattel is damaged by the Registration, in that such Registration gives Registrant aprima facie exclusive right to the use of CRASH DUMMIES, despite the likelihood ofconfusion, mistake, or deception with Mattel and the INCREDIBLE CRASH DUMMIES Marks,and allows Registrant to trade on Mattel's existing goodwill in the INCREDIBLE CRASHDUMMIES Marks. Moreover, the Registration has been cited as a bar to registration of theMattel Application, and the Registration was obtained by fraud on the Office and is barred by resjudicata and collateral estoppel based on the prior decisions of the Board and the Federal Circuit.WHEREFORE, Mattel prays that Reg. No. 5,745,704 issued on May 7, 2019, becanceled.The required fee of 400 for this Petition to Cancel has been charged to Deposit AccountNo. 50-4561.Respectfully submitted,SHEPPARD MULLIN RICHTER & HAMPTON LLPDated: July 31, 2020/Jill M. Pietrini/Jill M. PietriniPaul A. Bost1901 Avenue of the Stars, Suite 1600Los Angeles, California 90067-6017(310) 228-3700Attorneys for Petitioner Mattel, Inc.-9-

CERTIFICATE OF E-FILINGI hereby certify that this PETITION FOR CANCELLATION is being transmittedelectronically to Commissioner of Trademarks, Attn: Trademark Trial and Appeal Boardthrough ESTTA pursuant to 37 C.F.R. §2.195(a), on this 31st day of July, 2020./LaTrina A. Glenn/LaTrina A. GlennSMRH:4819-5128-8774.1-10-

Exhibit A

Trademark Electronic Search System (TESS)1Un it e d St a t e s Pa t e nt a n d Tr a de m a r k OfficeH om e Sit e I n de x Se a r ch FAQ Glossa r y Con t a ct s e Bu sin e ss e Biz a le r t s N e w sTrademarks Trademark Electronic Search System (TESS)TESS was last updated on Thu Jul 30 02:28:22 EDT 2020LogoutStartPlease logout when you are done to release system resources allocated for you.List At:ORJumpto record:Record 1 out of 2( Use the "Back" button of the Internet Browser to return toTESS)Word MarkGoods andServicesStandardCharactersClaimedMark DrawingCodeSerial NumberFiling DateCurrent BasisOriginal FilingBasisOwnerAttorney ofRecordType of MarkRegisterLive/DeadIndicatorINCREDIBLE CRASH DUMMIESIC 028. US 022 023 038 050. G & S: TOYS, GAMES AND PLAYTHINGS, NAMELY, TOY FIGURES ANDACCESSORIES THEREFOR, TOY FIGURE PLAYSETS AND ACCESSORIES THEREFOR; DOLLS ANDACCESSORIES THEREFOR, DOLL PLAYSETS AND ACCESSORIES THEREFOR; TOY VEHICLES ANDACCESSORIES THEREFOR, TOY VEHICLE PLAYSETS AND ACCESSORIES THEREFOR(4) STANDARD CHARACTER MARK87402697April 7, 20171B1B(APPLICANT) MATTEL, INC. CORPORATION DELAWARE M1-1518 333 CONTINENTAL BOULEVARD ELSEGUNDO CALIFORNIA 90245MICHAEL MOORETRADEMARKPRINCIPALLIVE . HOME SITE INDEX SEARCH eBUSINESS HELP PRIVACY POLICYhttp://tmsearch.uspto.gov/bin/gate.exe?f doc&state 4804:dvxdve.2.17/30/2020

Trademark Status & Document Retrieval1For assistance with TSDR, email teas@uspto.gov and include your serial number, the document you are lookingfor, and a screenshot of any error messages you have received.STATUSBack to SearchDOCUMENTSPrintGenerated on: This page was generated by TSDR on 2020-07-30 15:13:12 EDTMark: INCREDIBLE CRASH DUMMIESUS Serial Number: 87402697Application Filing Date: Apr. 07, 2017Filed as TEAS RF: YesCurrently TEAS RF: YesRegister: PrincipalMark Type: TrademarkTM5 Common StatusDescriptor:LIVE/APPLICATION/Under ExaminationThe trademark application has been accepted by the Ominimum filing requirements) and that this applicationexaminer.Status: A final Office action refusing registration has been sent (issued) because the applicant neither satisfieand/or refusals previously raised. The applicant may respond by filing (1) a request for reconsideratioTrademark Trial and Appeal Board. To view all documents in this file, click on the Trademark Documepage.Status Date: Jan. 31, 2020Mark InformationGoods and ServicesBasis Information (Case Level)Current Owner(s) InformationAttorney/Correspondence InformationProsecution HistoryTM Staff and Location InformationAssignment Abstract Of Title Information - Click to LoadProceedings - Click to Loadhttps://tsdr.uspto.gov/7/30/2020

Exhibit B

Exhibit C

THIS OPINION IS NOT APRECEDENT OF THE TTABOral Hearing:June 19, 2008Mailed:November 25, 2008UNITED STATES PATENT AND TRADEMARK OFFICETrademark Trial and Appeal BoardMattel, Inc.v.The Crash Dummy Movie, LLCOpposition No. 91159002to application Serial No. 76504400filed on March 31, 2003Jill M. Pietrini of Mannatt, Phelps & Phillips, LLP forMattel, Inc.Ted F. Gerdes of Gerdes & Associates and David J. Kera ofOblon, Spivak, McClelland, Maier & Neustadt, PC for TheCrash Dummy Movie, LLC.Before Walters, Kuhlke and Cataldo, Administrative TrademarkJudges.Opinion by Kuhlke, Administrative Trademark Judge:Applicant, The Crash Dummy Movie, LLC, seeksregistration of the mark CRASH DUMMIES (in typed form) forgoods ultimately identified in the application as “games andplaythings, namely, action figures, toy cars, crib toys,puppets, marionette puppets, toy vehicles, radio controlledtoy vehicles, model vehicles play sets for toy vehicles,

Opposition No. 91159002play sets for toy vehicles, play set buildings, houses,stand alone video game machines, board games, toy pedalcars, skateboards, toy banks, toy rockets and accessoriestherefore sold as sets, plush toys, amusement park rides,beach toys, inflatable toys, toy racing sets, in lineskates, protective padding for skateboarding and in lineskating, toy foam weapons, toy candy dispensers, toy gloves,costume masks, hula dolls, toy goggles, water squirting toysand toy catapults” in International Class 28.Theapplication, filed on March 31, 2003, is based on anallegation of a bona fide intention to use the mark incommerce under Trademark Act Section 1(b), 15 U.S.C.§1051(b).Opposer, Mattel, Inc., opposed registration ofapplicant’s mark on the grounds that, as applied toapplicant’s goods, the mark so resembles opposer’spreviously used marks CRASH DUMMIES and THE INCREDIBLE CRASHDUMMIES (“CRASH DUMMIES Marks”) for “action figures andplaysets, including accessories” as to be likely to causeconfusion, to cause mistake, or to deceive under TrademarkAct Section 2(d), 15 U.S.C. §1052(d).In addition, opposeralleges that applicant entered into an “option agreement”with opposer’s predecessor-in-interest for “motion pictureand television rights to the CRASH DUMMIES Property” inwhich applicant “recognized Mattel’s predecessor’s rights in2

Opposition No. 91159002the CRASH DUMMIES Marks and toy merchandising rights, interalia, were expressly excluded from the Option.”1Notice ofOpposition ¶¶ 13, 14 and 15.Applicant filed an answer by which it denied thesalient allegations and asserted the affirmative defensethat opposer did not acquire rights in the marks inasmuch asthe predecessor-in-interest had already abandoned the marksand to the extent opposer acquired such rights they haveabandoned them through non use of the marks.The evidence of record consists of the pleadingsherein; the file of the opposed application; the testimonydepositions (with exhibits) taken by opposer of Peter L.Frank, a Marketing Manager employed by opposer, Robert D.Walsh, a paralegal employed by opposer, and Adelle Jones, aparalegal with Manatt, Phelps & Phillips, LLP (opposer’soutside counsel) and former executive secretary withopposer.In addition, opposer submitted notices of relianceupon applicant’s discovery responses and printedpublications.Applicant submitted a notice of reliance onopposer’s cancelled registrations and the assignmentabstract of title for each registration.EVIDENTIARY OBJECTIONS1During oral argument opposer asserted that applicant isestopped from challenging opposer’s trademark rights based on theprior option agreement. However, the pleadings do notsufficiently raise the issue of estoppel nor was this issue triedby implied consent; therefore, we have given it no consideration.3

Opposition No. 91159002Within its main brief applicant objected to a largeportion of opposer’s evidence.The various grounds ofobjection include hearsay, lack of personal knowledge(incompetency of the witnesses), and evidence not admissibleby notice of reliance.Applicant objects to exhibits 8-140 on the basis thatthey are “inadmissible as evidence” because each of theseprinted publications is “hearsay for the truth of the matterfor which it was introduced.”Br. p. 3.Further, as toexhibits 10, 31 and 32 applicant asserts that they areirrelevant inasmuch as they “purport to report events orfacts in a foreign country.”Br. p. 4.These objectionsare overruled to the extent that the matter is admissibleand has been made properly of record by way of notice ofreliance.This issue goes to the probative value of theindividual exhibits and we have not considered them for thetruth of the matter asserted.However, they may be used toshow, for example, that opposer advertised the goods underthe mark in the publications on those dates.See GravelCologne, Inc. v. Lawrence Palmer, Inc., 469 F.2d 1397, 176USPQ 123 (CCPA 1972); Wagner Electric Corp. v. Raygo Wagner,Inc., 192 USPQ 33, 36 n. 10 (TTAB 1976).In addition, theymay be used to show the manner in which the words CRASHDUMMIES are used in an article and of the fact that thepublic has been exposed to the articles and may be aware of4

Opposition No. 91159002the information contained therein.Harjo v. Pro-FootballInc., 50 USPQ2d 1705, 1721 n. 50 (TTAB 1999).The objection to exhibit nos. 141 through 143, issustained to the extent that they are of little probativevalue, however, they are admissible.In re BayerAktiengesellschaft, 82 USPQ2d 1828 (Fed. Cir. 2007)(evidence of registration of ASPIRINA in another country isof little value to our analysis of its entitlement toprotection in the United States); Aktieselskabet af 21.November 2001 v. Fame Jeans Inc., 77 USPQ2d 1861 (TTAB2006).In arguing against the objection, opposer cites toseveral cases that speak to the possible probative value ofevidence of foreign origin (registrations, printedpublications or websites).In general, these cases involveconsumer perception in the context of a descriptiveness orgenericness claim or refusal.Here, applicant is relying onthem in the context of rebutting an abandonment claim toshow residual goodwill and intent to resume use in theUnited States.In such a context this type of evidence haslimited probative value.Applicant’s objection to exhibit nos. 144 through 153and 155 through 161 is sustained.Documents received inresponse to requests for production are not proper matterfor a notice of reliance absent an admission as to theirauthenticity or admissibility.5Further, the interrogatory

Opposition No. 91159002responses to which opposer refers in response to applicant’sobjection do not serve to save these documents.Under theexception cited by applicant the interrogatory responseitself must consist of the documents.See Trademark Rule2.120(j)(3)(i) (“.a copy of the interrogatory and ananswer thereto with any exhibit made part of the answer.”)In addition, the responses do not reference the specificdocuments.The option agreement identified in exhibit no. 34 hasbeen authenticated by applicant in its response to admissionrequest nos. 68 and 69.The denial of admission request no.74 does not undo the identification and authentication ofthat document but rather is applicant’s opinion as to itsrelevancy.In addition, Mr. Walsh’s testimony furtherserves to identify and authenticate that agreement.Applicant asserts that matter appearing in a lettersubmitted under notice of reliance in exhibit 161 serves asan admission against interest.The letter is not propermatter for a notice of reliance, as noted above, and thequote from the letter is hearsay and may not be consideredfor the truth of the matter asserted.Thus, it cannot beconsidered an admission against interest.Moreover, even ifwe were to consider it as an admission it only admits that aMr. Davis is “informed” that “The Incredible Crash Dummies”action figures had not been marketed since the early 1990’s.6

Opposition No. 91159002Applicant’s objections to the testimony of Mr. Frankand Mr. Walsh on the basis that they lack personal knowledgeare overruled.We find both witnesses sufficientlycompetent to testify on the matters covered in thedepositions.Moreover, a

sets, in line skates, protective padding for skateboarding and in line skating, toy foam weapons, toy candy dispensers, toy gloves, costume masks, hula dolls, toy goggles, wake boards, water squirting . INCREDIBLE CRASH DUMMIES MARKS AND MATTEL’S APPLICATION TO REGISTER THE INCREDIBLE CRASH DUMMIES 1. Mattel is an American multinational toy .

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First, Petitioners petition the Court for review of the TSA's failure to act on EPIC's May 31, 2009 5 U.S.C. § 553(e) petition. Second, Petitioners petition the Court for review of the May 28, 2010 Order of the TSA refusing to process EPIC's April 21, 2010 5 U.S.C. § 553(e) petition. Third, Petitioners petition the Court for

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