FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
` 
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`
`
`
`
`
`
`
`
`– against –
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`CINDY SLAVIN CLAYTON, individually and derivatively
`on behalf of OCEAN BOX E-COMMERCE CORP.,
`
`
`
`
`
`MITCHELL SLAVIN, JOHN LAVIN, JORDAN SLAVIN,
`OCEANBOX HOLDINGS LLC, OCEANBOX
`WHOLESALE LLC, OCEANBOX DIRECT LLC,
`OCEANBOX LIFESTYLES LLC, STEVEN LEVITT,
`LEVITT LLP, GERARD LUCKMAN, and FORCHELLI
`DEEGAN TARANA LLP,
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
`
`Plaintiff,
`
`
`HON. ANDREW BORROK, J.S.C.
`
`
`MOTION SEQ. 002
`
`
`
`Index No.: 655191/2020
`
`LEVITT DEFENDANTS’
`MOTION TO DISMISS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 
`
`G
`
`
`
`EXHIBIT G
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
`PTO Form 1478 (Rev 09/2006)
`
`OMB No. 0651-0009 (Exp 02/28/2021)
`
`Trademark/Service Mark Application, Principal Register
`
`TEAS Plus Application
`
`Serial Number: 88399635
`Filing Date: 04/24/2019
`
`NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory
`under the facts of the particular application.
`
`The table below presents the data as entered.
`
`Input Field
`
`Entered
`
`TEAS Plus
`
`MARK INFORMATION
`
`*MARK
`
`*SPECIAL FORM
`
`USPTO-GENERATED IMAGE
`
`LITERAL ELEMENT
`
`*COLOR MARK
`
`*COLOR(S) CLAIMED
`(If applicable)
`
`*DESCRIPTION OF THE MARK
`(and Color Location, if applicable)
`
`PIXEL COUNT ACCEPTABLE
`
`PIXEL COUNT
`
`REGISTER
`
`APPLICANT INFORMATION
`
`*OWNER OF MARK
`
`INTERNAL ADDRESS
`
`*STREET
`
`*CITY
`
`*STATE
`(Required for U.S. applicants)
`
`YES
`
`\\TICRS\EXPORT17\IMAGEOUT
`17\883\996\88399635\xml1\ FTK0002.JPG
`
`YES
`
`NO
`
`OCEANBOX
`
`NO
`
`The mark consists of the word "OCEANBOX" spelled out in a
`diamond shape in the middle of a larger circle. The word is
`written out in a diamond shape. The first letter "O" has a
`diamond in the middle of it. From the top corner of the
`diamond to the right corner are the letters "OC". From the right
`corner to the bottom corner of the diamond are the letters
`"EA". From the bottom corner to the left corner are the letters
`"NX". From the left corner to the top corner are the letters
`"OB". "OCEAN" is spelled out on the right side of the
`diamond from top to bottom and "BOX" is spelled out on the
`left side of the diamond from top to bottom.
`
`YES
`
`660 x 499
`
`Principal
`
`Oceanbox Holdings LLC
`
`C/O Levitt LLP
`
`129 Front Street
`
`Mineola
`
`New York
`
`
`
`1
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`*COUNTRY
`
`*ZIP/POSTAL CODE
`(Required for U.S. and certain international addresses)
`
`PHONE
`
`EMAIL ADDRESS
`
`LEGAL ENTITY INFORMATION
`
`United States
`
`11501
`
`516-248-9700
`
`XXXX
`
`*TYPE
`
`LIMITED LIABILITY COMPANY
`
`* STATE/COUNTRY WHERE LEGALLY ORGANIZED
`
`New York
`
`GOODS AND/OR SERVICES AND BASIS INFORMATION
`
`* INTERNATIONAL CLASS
`
`029 
`
`*IDENTIFICATION
`
`*FILING BASIS
`
`       FIRST USE ANYWHERE DATE
`
`       FIRST USE IN COMMERCE DATE
`
`       SPECIMEN
`       FILE NAME(S)
`
`       SPECIMEN DESCRIPTION
`
`* INTERNATIONAL CLASS
`
`*IDENTIFICATION
`
`*FILING BASIS
`
`       FIRST USE ANYWHERE DATE
`
`       FIRST USE IN COMMERCE DATE
`
`       SPECIMEN
`       FILE NAME(S)
`
`       SPECIMEN DESCRIPTION
`
`ADDITIONAL STATEMENTS SECTION
`
`*TRANSLATION
`(if applicable)
`
`*TRANSLITERATION
`(if applicable)
`
`*CLAIMED PRIOR REGISTRATION
`(if applicable)
`
`*CONSENT (NAME/LIKENESS)
`(if applicable)
`
`*CONCURRENT USE CLAIM
`(if applicable)
`
`ATTORNEY INFORMATION
`
`NAME
`
`FIRM NAME
`
`STREET
`
`Fish, not live; Seafood, not live
`
`SECTION 1(a)
`
`At least as early as 03/01/2017
`
`At least as early as 03/01/2017
`
`\\TICRS\EXPORT17\IMAGEOUT
`17\883\996\88399635\xml1\ FTK0003.JPG
`
`Applicant's website showing the means to order and subscribe
`to its fish and seafood delivery service.
`
`039 
`
`Food delivery
`
`SECTION 1(a)
`
`At least as early as 03/01/2017
`
`At least as early as 03/01/2017
`
`\\TICRS\EXPORT17\IMAGEOUT
`17\883\996\88399635\xml1\ FTK0004.JPG
`
`Applicant's website showing the means to order and subscribe
`to its fish and seafood delivery service.
`
` 
`
` 
`
` 
`
` 
`
`Matthew Koopersmith
`
`Levitt LLP
`
`129 Front Street
`
`
`
`2
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`CITY
`
`STATE
`
`COUNTRY
`
`ZIP/POSTAL CODE
`
`PHONE
`
`EMAIL ADDRESS
`
`Mineola
`
`New York
`
`United States
`
`11501
`
`516-248-9700
`
`mkoopersmith@levittlawllp.com
`
`AUTHORIZED TO COMMUNICATE VIA EMAIL
`
`Yes
`
`OTHER APPOINTED ATTORNEY
`
`Trevor Gomberg
`
`CORRESPONDENCE INFORMATION
`
`*NAME
`
`FIRM NAME
`
`*STREET
`
`*CITY
`
`*STATE
`(Required for U.S. addresses)
`
`*COUNTRY
`
`*ZIP/POSTAL CODE
`
`PHONE
`
`*EMAIL ADDRESS
`
`Matthew Koopersmith
`
`Levitt LLP
`
`129 Front Street
`
`Mineola
`
`New York
`
`United States
`
`11501
`
`516-248-9700
`
`mkoopersmith@levittlawllp.com; tgomberg@levittlawllp.com;
`rgraham@levittlawllp.com
`
`*AUTHORIZED TO COMMUNICATE VIA EMAIL
`
`Yes
`
`FEE INFORMATION
`
`APPLICATION FILING OPTION
`
`NUMBER OF CLASSES
`
`FEE PER CLASS
`
`*TOTAL FEE PAID
`
`SIGNATURE INFORMATION
`
`* SIGNATURE
`
`* SIGNATORY'S NAME
`
`* SIGNATORY'S POSITION
`
`SIGNATORY'S PHONE NUMBER
`
`* DATE SIGNED
`
`TEAS Plus
`
`2
`
`225
`
`450
`
`/mk/
`
`Matthew Koopersmith
`
`Attorney of record, New York bar member
`
`516-248-9700
`
`04/24/2019
`
`
`
`3
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
`PTO Form 1478 (Rev 09/2006)
`
`OMB No. 0651-0009 (Exp 02/28/2021)
`
` 
`
`Trademark/Service Mark Application, Principal Register
`
`TEAS Plus Application
`
`Serial Number: 88399635
`Filing Date: 04/24/2019
`
`To the Commissioner for Trademarks:
`
`MARK: OCEANBOX (stylized and/or with design, see mark)
`
`The mark in your application is OCEANBOX.
`The applicant is not claiming color as a feature of the mark. The mark consists of the word "OCEANBOX" spelled out in a diamond shape in the
`middle of a larger circle. The word is written out in a diamond shape. The first letter "O" has a diamond in the middle of it. From the top corner
`of the diamond to the right corner are the letters "OC". From the right corner to the bottom corner of the diamond are the letters "EA". From the
`bottom corner to the left corner are the letters "NX". From the left corner to the top corner are the letters "OB". "OCEAN" is spelled out on the
`right side of the diamond from top to bottom and "BOX" is spelled out on the left side of the diamond from top to bottom.
`The applicant, Oceanbox Holdings LLC, a limited liability company legally organized under the laws of New York, having an address of
`      C/O Levitt LLP
`      129 Front Street
`      Mineola, New York 11501
`      United States
`      516-248-9700(phone)
`      XXXX (not authorized)
`
`requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register
`established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:
`
`For specific filing basis information for each item, you must view the display within the Input Table.
`       International Class 029:  Fish, not live; Seafood, not live
`
`Use in Commerce: The applicant is using the mark in commerce on or in connection with the identified goods/services. The applicant attaches, or
`will later submit, one specimen as a JPG/PDF image file showing the mark as used in commerce on or in connection with any item in the class of
`listed goods/services, regardless of whether the mark itself is in the standard character format or is a stylized or design mark. The specimen image
`file may be in color, and the image must be in color if color is being claimed as a feature of the mark.
`
`In International Class 029, the mark was first used by the applicant or the applicant's related company or licensee predecessor in interest at least
`as early as 03/01/2017, and first used in commerce at least as early as 03/01/2017, and is now in use in such commerce. The applicant is
`submitting one(or more) specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed
`goods/services, consisting of a(n) Applicant's website showing the means to order and subscribe to its fish and seafood delivery service..
`Specimen File1
`
`For specific filing basis information for each item, you must view the display within the Input Table.
`       International Class 039:  Food delivery
`
`Use in Commerce: The applicant is using the mark in commerce on or in connection with the identified goods/services. The applicant attaches, or
`will later submit, one specimen as a JPG/PDF image file showing the mark as used in commerce on or in connection with any item in the class of
`listed goods/services, regardless of whether the mark itself is in the standard character format or is a stylized or design mark. The specimen image
`file may be in color, and the image must be in color if color is being claimed as a feature of the mark.
`
`In International Class 039, the mark was first used by the applicant or the applicant's related company or licensee predecessor in interest at least
`as early as 03/01/2017, and first used in commerce at least as early as 03/01/2017, and is now in use in such commerce. The applicant is
`submitting one(or more) specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed
`goods/services, consisting of a(n) Applicant's website showing the means to order and subscribe to its fish and seafood delivery service..
`Specimen File1
`
`
`
`4
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`The applicant's current Attorney Information:
`      Matthew Koopersmith and Trevor Gomberg of Levitt LLP      129 Front Street
`      Mineola, New York 11501
`      United States
`      516-248-9700(phone)
`      mkoopersmith@levittlawllp.com (authorized)
`
`The applicant's current Correspondence Information:
`
`      Matthew Koopersmith
`
`      Levitt LLP
`
`      129 Front Street
`
`      Mineola, New York 11501
`
`      516-248-9700(phone)
`
`      mkoopersmith@levittlawllp.com;tgomberg@levittlawllp.com; rgraham@levittlawllp.com (authorized)
`E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or the applicant's
`attorney, or the applicant's domestic representative at the e-mail address provided in this application. I understand that a valid e-mail address
`must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the
`Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Plus status and a requirement to submit an
`additional processing fee of $125 per international class of goods/services.
`
`A fee payment in the amount of $450 has been submitted with the application, representing payment for 2 class(es).
`
`Declaration
`
`Basis:
`If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):
`
`The signatory believes that the applicant is the owner of the trademark/service mark sought to be registered;
`The mark is in use in commerce on or in connection with the goods/services in the application;
`The specimen(s) shows the mark as used on or in connection with the goods/services in the application; and
`To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.
`
`AND/OR
`If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d),
`and/or § 1126(e):
`
`The signatory believes that the applicant is entitled to use the mark in commerce;
`The applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the
`application; and
`To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.
`
`To the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the
`mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the
`goods/services of such other persons, to cause confusion or mistake, or to deceive.
`
`To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the
`allegations and other factual contentions made above have evidentiary support.
`
`The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. §
`1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration
`resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and
`belief are believed to be true.
`
`Declaration Signature
`
`Signature: /mk/   Date: 04/24/2019
`Signatory's Name: Matthew Koopersmith
`Signatory's Position: Attorney of record, New York bar member
`Signatory's Phone Number: 516-248-9700
`
`
`
`5
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`
`RECEIVED NYSCEF: 12/29/2020
`
`Payment Sale Number: 88399635
`Payment Accounting Date: 04/24/2019
`
`Serial Number: 88399635
`Internet Transmission Date: Wed Apr 24 09:56:08 EDT 2019
`TEAS Stamp: USPTO/FTK-XX.XX.XXX.XXX-2019042409560850
`5097-88399635-620017fe4715def6b4227c90a9
`aa74f763d9adfc74bbcf37cb8142a0868173cc-C
`C-12901-20190424094956573922
` 
`
`
`
`6
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`FILED: NEW YORK COUNTY CLERK 12372020 11:58 P I
`NYSCEF DOC. NO. 54
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`INDEX NO- 655191/2020
`RECEIVED NYSCEF: 12/29/2020
`RECEIVED NYSCEF: 12/29/2020
`
`
`
`
`
`7
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`FILED: NEW YORK COUNTY CLERK 12372020 11:58 P I
`NYSCEF DOC. NO. 54
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`INDEX NO- 655191/2020
`RECEIVED NYSCEF: 12/29/2020
`RECEIVED NYSCEF: 12/29/2020
`
`SEFFODJ
`
`CUR 5?".an
`
`CL'F' SRO-SEES
`
`SJST?‘ I‘JFHEL TY
`
`BLOC:
`
`LD-CnrJ
`
`H {c.-
`
`OCEANBOX
`
`"FD U R F! H ST BOX!
`
`I
`
`U SE [:0 D E
`
`.-'5.T E: H EC HD U T
`
`
`
`How It Works
`
`Stl'aigl'1fmn‘ our deck-:- tc your door -.
`—'-'- ii'c— Freshest seafood '.\ It!" "me rigl'eEI zzaddard:
`' '
`'
`i'
`..
`Edam-163.3- scwcecl emu packaged '-.-'x
`. 9mg the :ncredihle nave" :m‘ health benefits of
`
`c_:ai :,
`:eaf-Wu- .0 ,mr EIil‘FIE'I table
`
`
`
`8
`
`

`

`FILED: NEW YORK COUNTY CLERK 12/29/2020 11:58 PM
`FILED: NEW YORK COUNTY CLERK 12372020 11:58 P I
`NYSCEF DOC. NO. 54
`NYSCEF DOC. NO. 54
`
`INDEX NO. 655191/2020
`INDEX NO- 655191/2020
`RECEIVED NYSCEF: 12/29/2020
`RECEIVED NYSCEF: 12/29/2020
`
`SEFFODJ
`
`CUR 5?".an
`
`CL'F' SRO-SEES
`
`SJST?‘ I‘JFHEL TY
`
`BLOC:
`
`LD-CnrJ
`
`H {c.-
`
`OCEANBOX
`
`"FD U R F! H ST BOX!
`
`I
`
`U SE [:0 D E
`
`.-'5.T E: H EC HD U T
`
`
`
`How It Works
`
`Stl'aigl'1fmn‘ our deck-:- tc your door -.
`—'-'- ii'c— Freshest seafood '.\ It!" "me rigl'eEI zzaddard:
`' '
`'
`i'
`..
`Edam-163.3- scwcecl emu packaged '-.-'x
`. 9mg the :ncredihle nave" :m‘ health benefits of
`
`c_:ai :,
`:eaf-Wu- .0 ,mr EIil‘FIE'I table
`
`
`
`9
`
`