IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`Opposition No. 91181131
`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer,
`
`n
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`\/\/\/\/\/\/\_/\/\_/\/\/\/\/
`
`APPLICANT'S PRELIMINARY RESPONSE TO
`
`"OPPOSER'S MOTION TO AMEND ITS NOTICE OF OPPOSITION"
`
`AND
`
`MOTION TO STRIKE ALL REFERENCES IN OPPOSER'S
`PAPERS, FILED FEBRUARY 8, 2010, THAT REFER TO
`ANY CLAIM THAT APPLICANT DID NOT SIGN ITS
`TRADEMARK APPLICATION IN GOOD FAITH
`
`Applicant has moved for more time to respond to Opposer's
`
`various papers. At present, Applicant is still investigating both
`
`the law and the facts and hopes to be able to supplement
`
`the
`
`following response, if the request for more time is granted.
`
`APPLICANT OBJECTS TO OPPOSER'S
`MOTION TO AMEND ITS NOTICE OF OPPOSITION
`
`Applicant objects to "Opposers Motion to Amend its Notice of
`
`Opposition”.
`
`Applicant also moves to strike,
`
`from the various papers which
`
`Opposer filed on February 8, 2010, any and all reference to any
`
`alleged claim of bad faith on the part of Applicant.
`1
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`lllllllIlllllllllHIIIHHI!\|\\||\|H\|\\||\H||E
`02-23-2010
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`

`
`In support of the foregoing, Applicant relies on:
`
`1.
`
`The attached declarations of Badger and Maher.
`
`2.
`
`The nine page document entitled "APPLICANT'S RESPONSE
`
`TO OPPOSER'S REQUEST FOR PRODUCTION."
`
`3.
`
`The various papers comprising Exhibits A, B, C, D and
`
`E, attached to the declaration of Teresa D.
`
`Tambolas filed herein on February 8, 2010.
`
`4. Applicant's letter to Opposer dated October 6, 2008.
`
`EBLEE
`
`Preliminary
`
`Mrs. Maher has been making and selling cookies for money for
`
`many years. As early as 2001, Mrs. Maher's husband incorporated the
`
`cookie business by forming the Florida corporation 10 Star
`
`Enterprises,
`
`Inc.
`
`(see attached Maher declaration).
`
`From 2001 to
`
`2009, Mr. Maher consulted an expert in the field of small businesses
`
`on how to run the cookie business and how to develop a cookie where
`
`all of its ingredients were organic,
`
`(see attached Badger
`
`declaration).
`
`In 2006, Mrs. Maher applied for an "Intent to Use"
`
`trademark. Mrs. Maher continuously from 2002 to date has been
`
`experimenting with and selling cookies having organic ingredients.
`
`(see page 6 infira and see also the attached Maher declaration).
`
`The Badger declaration shows that Mr. Maher died in 2009 which
`
`reduced the personnel running the cookie business from two to one.
`
`The Mahers never had a business plan. When Mrs. Maher filed
`
`the trademark application in 2006, she had many years of experience
`
`making and selling cookies.
`
`(See Opposer's Exhibit A, supra).
`
`

`
`In connection with both of Applicant's said objection and said
`
`motion to strike there are two grounds supporting Applicant's
`
`position, as follows:
`
`1. Opposer was late in filing its motion to amend.
`
`2. Opposer's assertions of bad faith are baseless and
`
`are based on bad law and erroneous facts.
`
`OPPOSER WAS LATE IN
`
`RAISING THE BAD FAITH ISSUE
`
`Discovery lasted about
`
`two years* and this Board in its
`
`August 27, 2009 Order, at page 14, said "The parties should resolve
`
`any future discovery disputes promptly and allow the case to go
`
`forward to trial without further Board intervention". Applicant
`
`filed its motion for summary judgment about a week later and over a
`
`month before the discovery period expired on October 19, 2009.
`
`The
`
`Board expressly allowed Applicant's motion to go forward
`
`(see
`
`Board's Order of January 7, 2010). But Opposer waited over four
`
`months after the discovery period expired and filed papers based on
`
`alleged facts (Applicant never had a business plan)
`
`that had been
`
`known to Opposer over a year earlier as will appear in the next
`
`paragraph hereof.
`
`If Opposer's motion is granted there would be a
`
`new long discovery period.
`
`On May 23, 2008, Applicant responded to an Opposer document
`
`request by saying Applicant would "produce all of Applicant's
`
`documents for inspection and copying, except for documents relating
`
`to taxes and attorney—client documents"**. Applicant followed by
`
`-*_—~*—_TA1l extensions of time were at the request of Opposer.
`
`"APPLICANT'S
`**See page 1 of the attached documents entitled:
`RESPONSE TO OPPOSER'S REQUEST FOR PRODUCTION," and Applicant's letter
`to Opposer of October 6, 2008.
`
`

`
`sending Opposer all of its documents, and Opposer could see at once
`
`that Applicant had no business plan.
`
`Thus Opppser knew as early as
`
`2008 that_Applicant did not have a business plan.
`
`The alleged
`
`absence of a business plan is the basis of Opposer's charge that
`
`Applicant filed its trademark in bad faith. Thus, Opposer knew well
`
`over a year before it raised the issue of bad faith that Applicant
`
`had no business plan. Moreover, since the discovery period lasted
`
`about
`
`two years it would be unreasonable to assume that Opposer did
`
`not know about all documents in Applicant's possession long before
`
`the close of discovery.
`
`Moreover, Opposer was well aware that Mrs. Maher had been
`
`making and selling cookies for 20 years before she applied for the
`
`trademark.
`
`(see Teresa Tambolas's Exhibit A —— Applicant's Initial
`
`Disclosure).
`
`Opposer admits that it knew the facts on which its motion to
`
`amend is based as early as September 21, 2009,* but did not file its
`
`motion until almost five months later.
`
`Clearly, Opposer has unduly delayed filing its specious motion
`
`to amend and the same should be denied.
`
`*See page 1 of "OPPOSER'S MOTION TO AMEND NOTICE OF
`OPPOSITION".
`
`

`
`THE LAW RELATING TO PROOF OF BAD FAITH IN THE
`SIGNING OF INTENT TO U§E TRADEMARK APPLICATIONS
`
`J. Thomas McCarthy on Trademark and Unfair Competition Sec.
`
`19.14 (4 Ed)
`
`recommends that trademark rule 2.89(d) control the
`
`"intent to use" cases, as follows:
`
`The PTO has listed several examples in Rule 2.89(d)
`which, while strictly relating to the showing of good
`cause for an extension of time, are helpful in
`formulating a working definition of the kinds of
`things that could provide the needed "objective"
`evidence of good faith.
`The PTO Rules provide that
`efforts evidencing an ongoing effort to make use of
`a mark could consist of "product or service research
`or development, market research, manufacturing
`activities, steps to acquire distributors, steps to
`obtain required governmental approval, or other
`similar activities." Evidence of these types of
`activities would provide objective evidence of a
`firm intention to use the applied—for mark.
`
`This clearly means that "good faith" may be proved by
`
`performing research or by carrying on the business. Moreover,
`
`the
`
`absence of a business plan is some evidence of bad faith only when
`
`there are good reasons to believe that there was a business plan that
`
`was withheld. The case quoted at the bottom of page 5 of Opposer's
`
`Motion applies to any document, not necessarily a business plan.
`
`The absence of a business plan is evidence of bad faith pnly
`
`when there is proof that there was a business plan that was not
`
`produped. There is no assumption that Applicant had a business plan.
`
`For example, should we assume children who start a lemonade stand
`
`have a business plan? Similarly, consider a housewife that has made
`
`and sold cookies for many years.
`
`Is she expected to have a business
`
`plan that tells her how to make and sell cookies?
`
`Clearly a small business run by husband and wife making and
`
`selling cookies does not need a business plan.
`
`

`
`Moreover, a small business run by husband and wife who
`
`consults an expert, such as Mr. Badger, about running small
`
`businesses, does not need a business plan.
`
`It is true that the testimony of a party alone is insufficient
`
`to establish good faith if a document was proved to have been
`
`wi hheld.
`
`In this case, however,
`
`there was np document that was
`
`withheld hence Applicant's trademark application was filed in good
`
`faith. Under these circumstances the attached Badger and Maher
`
`declarations are not needed to show that the trademark application
`
`was filed in good faith. But adding these declarations to the
`
`evidence that no document was withheld sets forth an overwhelming
`
`case of good faith.
`
`Moreover, all of the answers to interrogatories that Opposer's
`
`attorney included in her Exhibits A, B, C, D and E, filed February 8,
`
`2010 are part of the evidence in support of Applicant's case. While
`
`normally a party cannot use as evidence his own answers to
`
`interrogatories he may do so if his opponent places them in evidence.
`
`Applicant has not recently searched the law on this but will do so if
`
`our request for more time to file this brief is granted.
`
`Opposer's Exhibit C, page 2, quotes Applicant's answer to
`
`Interrogatory 24 as follows:
`
`In the early days of Mrs. Maher's cookie business,
`Mrs. Maher wanted to sell organic cookies but so far as
`she could find there were not suitable organic
`ingredients so she started a long and continuous effort
`to find organic ingredients.
`She started then and
`continued to this date to find new organic ingredients
`that were coming on the market. When she found such an
`ingredient she used it in her cookies. This practice
`continued to date and Mrs. Maher expects to continue this
`practice until she clearly has organic cookies, and
`approval of the Department of Agriculture.
`
`

`
`approval of the Department of Agriculture.
`
`APPLICANT HAS MUCH DOCUMENTARY EVIDENCE
`
`1.
`
`The documentary evidence accompanying the Badger
`
`declaration clearly shows Applicant was selling cookies with a
`
`special ingredient.
`
`2. Mr. Badger's Exhibit A is a letter that shows that
`
`Applicant was in the cookie business.
`
`3. Mr. Badger's Exhibit B is a document advertising
`
`Applicant's cookie business.
`
`4.
`
`The Maher declaration cites ten advertisements that were
`
`used in the sale of cookies.
`
`5.
`
`The papers forming the Florida Corporation, 10 Star
`
`Enterprises,
`
`Inc.* and the assignment
`
`(recorded in the PTO) of the
`
`Applicant's TM application to that corporation.
`
`6. Maher's declaration shows that Mrs. Maher has a Texas food
`
`manager's license.
`
`SUMMARY
`
`Since Opposer has not proved that some document was withheld
`
`it has no case and its motion to amend should be denied. Moreover,
`
`the evidence fully supports Applicant's good faith.
`
`CONCLUSIONS
`
`Opposer's motion to amend its pleading should be denied.
`
`All references to Opposer's claims of bad faith should be
`
`stricken.
`
`*See Maher declaration.
`
`

`
`Respectfully submitted,
`
`1 W
`
`illiam D. Hall
`
`Register 14,311
`Attorney at Law (Maryland)
`10850 Stanmore Drive
`
`Potomac, MD 20854-1522
`Tel. 301 983 5070
`Fax
`301 765 0112
`
`CERTIFICATE OF SERVICE
`
`I, William D. Hall, hereby certify that I served a true and
`complete Copy of "APPLICANT'S PRELIMINARY RESPONSE TO OPPOSER'S
`MOTION TO AMEND ITS NOTICE OF OPPOSITION" and "MOTION TO STRIKE ALL
`REFERENCES IN OPPOSER'S PAPERS, FILED FEBRUARY 8, 2010, THAT REFER TO
`ANY CLAIM THAT APPLICANT DID NOT SIGN ITS TRADEMARK APPLICATION IN
`GOOD FAITH", on the attorney for Opposer (Brett A. August, Esq.),
`via U.S. first—class mail, postage prepaid,
`this 22nd day of February
`2010:
`
`Brett A. August, Esq.
`Pattishall, McAuliffe, Newbury,
`Hiliard & Geraldon, LLP
`311 South Wacker Drive, Suite 5000
`Chicago,
`IL 60606.
`
`
`
`William D. Hall
`
`

`
`IN THE UNITED STATES PAIENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91181131
`
`)
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`
`) )
`
`) )
`
`)
`
`)
`
`)
`
`CLOVERHILL PASTRY
`
`VEND CORPORATION
`
`Opposer,
`
`v.
`
`10 STARR ENTERPRISES, INC.,
`
`Applicant.
`
`DECLARATION OF RICHARD S. BADGER
`
`1, Richard S. Badger, have been a certified public accountant in private practice for about 35
`
`years. My office address is: The Vienna Building, 302 Maple Avenue, West, Suite 6, Vienna, VA.
`
`22180. Since I have been in practice I have advised hundreds of clients about matters involved in running
`
`their businesses.
`
`I have personal knowledge of the facts stated herein and could, if called as a witness, testify as to
`
`them.
`
`One of my clients, who consulted me from time to time, from about 1985 until his death in 2009,
`
`was Ted Maher. Beginning in the fall of 2001, many of my consultations with Mr. Maher related as to
`
`how the corporation (10 Star Enterprises, Inc.) should run a business that developed, made and sold
`
`

`
`cookies.
`
`It was my understanding from Mr. Maher that he had the goal of a cookie all of the ingredients
`
`of which were organic.
`
`At an early stage of Mr. Maher’s discussions with me about 10 Star Enterprises, Inc., he sent me a
`
`box of cookies, a letter (marked Exhibit A) and an advertisement (marked Exhibit B).
`
`Exhibit A is the original of the letter Mr. Maher sent to me.
`
`I got it at about the same time as I
`
`received a box of cookies. The third paragraph of Exhibit A made it clear to me that 10 Star’s cookies
`
`sold much better than 10 Star’s biscuits.
`
`Exhibit B was received at the time I referred to Exhibit A. Exhibit B has the sentence “AWARD
`
`WINNING INGREDIENTS WITH NO PRESERVATIVES. TASTE THE QUALITY!” When I read
`
`the passage “Award Winning Ingredients” I believed it was referring to organic ingredients since Mr.
`
`Maher described the cookies frequently as having organic ingredients.
`
`Ordinarily, when a non-family business is to be run by several persons they should have a written
`
`business plan. As I understood the cookie business of Mr. and Mrs. Maher, they did their cookie business
`
`via a corporation 10 Star Enterprises, Inc.
`
`In my opinion such a small business involving only husband
`
`and wife does not necessarily need a written business plan.
`
`I hereby certify under the penalties of perjury that the foregoing is true and correct.
`
`Executed in Vienna, VA this
`
`1;
`../ day of February, 2010.
`7
`
`
`Richard S. Badger
`
`

`
`
`
`
`
`
`
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`.I-/-use ‘A’u-Ar\vun®%XTI$fi 'M%MmDI@‘H¢A%%?I€VflQHl1V:.vfim
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`
`
`
`
`Cookie Presents
`4166 Lasalle Drive
`Palm Harbor. Fl 34685
`Phone 727-938-6565
`
`Hi Chris and Dick,
`
`Here are some goodies for you and your staff for getting our taxes
`out on that Friday so we didn’t have to ask for an extension.
`
`I hope the cookies and biscottis arrive “unsquished,” but I have a
`feeling the chocolate toppings will be melted. (The chocolates are
`Guitard and Cocoa Berry that have won numerous awards.)
`
`The Biscottis are new to “Cookie Presents.” The size is extra long
`and I had to cut the outer two to fit into the box.
`It’s fun making
`them and the orders in the coffee shops (3) that we sell to have
`increased almost double since we substituted the cookies for them.
`
`(I save the cookies for arrangements, and the Biscottis for the coffee
`shops.)
`
`Ted and I hope all is well with you and your family. Take care and
`let us know if the shipment arrived in one piece and hopefully not
`crumbs.
`
`&SQ. xi
`
`Exhibit A
`
`

`
`COFFEE MUG $10.00
`
`
`
`SILK FLOWER VVREATH $30.00
`
`VAI,F.N'I'INF. PAIL $10.00
`
`ITS DAY COOKIE ARRANGEMENTS FOR FAMILY,
`UNIQUE VA.LEN'I'I
`FRIENDS, AND YOUR SPECIAL SOMEONE. AWARD WINNING
`INGREDIENTS WITH NO PRESERVATIVES. TASTE THE QUALITY!
`
`FREE DELIVERY
`
`727-938-6565
`
`A FLORIDA LICENSED BAKERY
`
`
`Exhibit B
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer,
`
`0
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`\/\/\/\/\/\/\/\/\/x/\/\/\_/
`
`Opposition No. 91181131
`
`DECLARATION OF HATHOLYND C. MAHER
`
`I, Hatholynd C. Maher, have personal knowledge of the facts
`
`stated herein and could, if called as a witness, testify as to them.
`
`I started making and selling cookies on a small scale at least
`
`ten years prior to the time I signed the trademark application in
`
`2006. My husband decided to incorporate the business and in 2001
`
`formed a Florida corporation named 10 Star Enterprises,
`
`Inc.
`
`The
`
`articles of incorporation are attached and are marked Exhibit C.
`
`In 2002, Mr. Maher and I consulted an expert, Richard S.
`
`Badger, C.P.A., on running a small business and he guided our
`
`business up to until my husband died in 2009. Thus, at the time that
`
`I signed the trademark application my husband and I knew how to run a
`
`cookie business and did not need anything like a business plan.
`
`The corporation 10 Star Enterprises,
`
`Inc. pursued the
`
`development of an organic cookie.
`
`I searched for new organic
`
`ingredients and tested cookies with such ingredients for taste.
`
`I made such searches from prior to 2001 to date.
`
`In other words,
`
`the corporation 10 Star Enterprises,
`
`Inc. has made and sold cookies
`
`1
`
`

`
`with organic ingredients from the date of its incorporation to the
`
`present.
`
`I received a bakery license in Florida in 2003 (see
`
`Exhibit N).
`
`I have a bakery license in Texas.
`
`During 2006 and 2007 Rosemary Hamerl of Tarpon Springs,
`
`Florida assisted me in the delivery of cookies, made of at least one
`
`organic ingredient,
`
`to customers.
`
`In July 2009, my husband Ted Maher died. This reduced the
`
`personnel running the cookie business from two persons (Ted Maher and
`
`wife)
`
`to one person. Thus,
`
`I am the one person who must continue the
`
`cookie business along with all other matters a widow must
`
`take care
`
`of.
`
`As a result the research activities have slowed considerably.
`
`After the problems created by my husband's death have been resolved I
`
`expect
`
`to have a cookie that tastes good and is made entirely of
`
`organic ingredients.
`
`Exhibits D, E, F, G, H,
`
`I, J, K, L and M are advertisements
`
`that 10 Star Enterprises,
`
`Inc. has used.
`
`I do not have a date for
`
`each advertisement, but one or more was available for the period 2002
`
`to date.
`
`I hereby certify under the penalties of perjury that the
`
`foregoing is true and correct.
`
`Executed this I
`
`E day of February 2010.
`
`
`
`iHatholynd C. Maher
`
`

`
`Brpartment of 51:11»
`
`I certify the attached is a true and correct copy of the Articles of
`Incorporation of 10 STAR ENTERPRISES,
`INC., a Florida corporation, filed
`on January 25, 2001, as shown by the records of this office.
`
`xi I further certify the document was electronically received under FAX audit 71
`number 301000010610. This certificate is issued in accordance with
`‘
`section 15.16, Florida Statutes, and authenticated by the code noted below ¢s
`
`Given under my hand and the
`Great Seal of the State of Florida,
`at Tallahassee,
`the Capital, this the
`Twenty-fifth day of January, 2001
`
`Authentication Code: 40IADO0D4269-D1250l—P0l0DD009475-1/1
`
`Exhibit C
`
`

`
`Audit # H01000010610
`
`ARTICLES OF INCORPORATION
`
`OF
`
`10 STAR ENIERPRISES, HVC.
`
`The undersigned incoiporator to these Articles of Incorporation hereby forms
`
`a corporation under the laws of the State of Florida as follows?
`
`ARTICLE I
`
`Name and Address
`
`The name of this Corporation is:
`
`10 Star Enterprises, Inc.
`
`The mailing address and street address of the Corporation are:
`
`4166 LaSalle Dr.
`
`Palm Harbor, FL 34685
`
`ARTICLE II
`
`Term of Existence
`
`This Corporation shall have perpetual existence, commencing upon the date of filing of
`
`these Articles with the Florida Department of State.
`
`ARTICLE III
`
`Purpose
`
`This Corporation is organized for the purpose of transacting any and all lawfiil business.
`
`ARTICLE IV
`
`Powers
`
`The corporation shall have the power:
`
`(a)
`
`(b)
`
`To have perpetual succession by its corporate name;
`
`To sue and be sued, complain, and defend in its corporate name;
`
`‘This form was prepared with the assistance
`of CourtAccess Centers of America, Inc., a
`non-lawyer located at 3249 W Cypress St., Suite C
`Tampa, FL 33607 813-875-1333.
`
`Audit # H0 1 000010610
`
`Exhibit C
`
`

`
`(c)
`
`To have a corporate seal, which may be altered at will, and to use it , or a facsimile of it,
`
`Audit # HOl0000106l0
`
`by impressing, or aflixing it or in any other manner reproducing it;
`
`(d)
`
`To purchase, receive, lease, or otherwise acquire, own, hold, improve, use, and otherwise
`
`deal with real or personal property or any legal or equitable interest in property wherever located;
`
`(e)
`
`To sell, convey, mortgage, pledge, create a security interest in, lease, exchange, and
`
`otherwise dispose of all or any part of its property,
`
`(i)
`
`To lend money to, and use its credit to assist, its ofiicers and employees to the fiill extent
`
`permitted by law;
`
`(g)
`
`To make contracts and guarantees, incur liabilities, borrow money, issue its notes, bonds,
`
`and other obligations (which may be convertible into or include the option to purchase other
`
`securities of the corporation), and secure any of its obligations by mortgage or
`
`pledge of any of its property, franchises, and income and make contracts of guaranty and
`
`suretyship which are necessary or convenient to the conduct, promotion, or attainment of the
`
`business of a corporation the majority ofthe outstanding stock of which is owned, directly or
`
`indirectly, by the contracting corporation; a corporation which owns, directly or indirectly, a
`
`majority of the outstanding stock ofthe contracting corporation; or a corporation the majority of
`
`the outstanding stock of which is owned, directly or indirectly, by a corporation which owns,
`
`directly or indirectly, the majority ofthe outstanding stock ofthe contracting corporation, which
`
`contracts of guaranty and suretyship shall be deemed to be necessary or convenient to
`
`the conduct, promotion, or attainment ofthe business of the contracting corporatiorg and make
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`other contracts of guaranty and suretyship which are necessary or convenient to the conduct,
`
`promotion, or attainment of the business of the contracting corporation;
`
`(h)
`
`To purchase, receive, subscribe for, or otherwise acquire, own, hold, vote, use, sell,
`
`mortgage, lend, pledge, or otherwise dispose of; and deal in and with, shares or other interests in,
`
`or obligations of, any other entity;
`
`(i)
`
`To lend money,
`
`invest and reinvest its funds, and receive and hold real and personal
`
`property as security for repayment;
`
`(i)
`
`To conduct its business, locate oifices and exercise the powers granted by this act within
`
`or without this state;
`
`Audit # HOIOOOO 1 0610
`
`

`
`Audit # H0l0000l0610
`To elect directors and appoint officers, employees, and agents ofthe Corporation and
`
`(k)
`
`define their duties, fix their compensation, and lend them money and credit;
`
`(1)
`
`To make and amend bylaws, not inconsistent with its Articles of Incorporation or with the
`
`laws of this state, for managing the business and regulating the affairs of the Corporation;
`
`(In)
`
`To make donations for the public welfare or for charitable, scientific, or educational
`
`purposes;
`
`(11)
`
`(0)
`
`To transact any lawfiil business that will aid governmental policy;
`
`To pay pensions and establish pension plans, pension trusts, profit sharing plans, share
`
`bonus plans, share option plans, and benefit or incentive plans for any or all ofits current or
`
`former directors, officers, employees and agents and for any or all of the current or former
`
`directors, ofiicers, employees and agents of its subsidiaries;
`
`(p)
`
`To provide insurance for its benefit on the life of any of its directors, ofiicers, or
`
`employees, or on the life of any shareholder for the purpose of acquiring at his death shares of its
`
`stock owned by the shareholder or by the spouse or children of the shareholder, and
`
`(q)
`
`To be a promoter, incorporator, partner, member, associate, or manager of any
`
`corporation, partnership, joint venture, trust, or other entity,
`
`(r)
`
`To make payments or donations or do any other act not inconsistent with law that furthers
`
`the business and afiaiis of the corporation;
`
`ARTICLE V
`
`Capital Stock
`
`This Corporation is authorized to issue One Thousand (1,000) shares of One Dollar
`
`($1.00) par value stock, which shall be designated Common Shares.
`
`ARTICLE VI
`
`Initial Registered Office and Agent
`
`The street address of the initial registered oflice of this Corporation is:
`
`4166 LaSalle Dr.
`
`Palm Harbor, FL 34685
`
`and the name of its registered agent at such address is:
`
`Theodore J. Maher
`
`Audit # H01 00001061 0
`
`

`
`Audit # H01000O10610
`
`ARTICLE VII
`
`Initial Board of Directors
`
`This Corporation shall have One director(s) initially. The number of directors may be
`
`either increased or diminished from time to time by the Bylaws, but shall never be less than one
`
`(1). The name and address of the initial directors of this Corporation is:
`
`Name and Address
`
`Theodore J. Maher
`
`4166 LaSalle Dr.
`
`Palm Harbor, FL 34685
`
`ARTICLE VI[[
`
`Incoggorator
`
`The name and address ofthe person signing these Articles are:
`
`Name and Address
`
`Theodore J. Maher
`
`4166 LaSalle Dr.
`
`Palm Harbor, FL 34685
`
`ARTICLE IX
`
`Amendment
`
`These Articles of Incorporation may be amended in the manner provided by law.
`
`IN WITNESS WHEREOF, the undersigned subscriber has executed these Articles of
`
`Incorporation, this day, Thursday, January 25, 2001.
`
`l,
`
`Theodore J. Maher
`
`Audit # H01000O10610
`
`

`
`Audit # H0l000010610
`
`ACCEPTANCE BY REGISTERED AGENT
`
`Having been named as Registered Agent and to accept service of process for the above
`stated corporation at the place designated in this certificate, I hereby accept the appointment as
`registered agent and agree to act in this capacity. I further agree to comply with the provisions of
`all statues relating to the proper and complete performance of my duties, and I am familiar with
`and accept the obligations of my position as registered agent.
`
`/
`
`
`
`heodore J. Maher‘
`
`/ T
`
`Date: Janugy 25, 2001
`
`' This form was prepared with the assistance
`of CourtAccess Centers of America, Inc., a
`non-lawyer located at 3249 W Cypress St., Suite C
`Tampa, FL 33607 813-875-1333.
`
`Audit #H0lO0O010610
`
`

`
`‘*'COOKIE PRESENTS*
`
`Featuring
`
`TEXASBIGBITES
`
`BAKED WITH
`
`AWARD ‘AVINNINC CHOCOLATE
`
`ORGANIC WHOLE WHEAT I-"LOUR
`
`ORGANIC BUTTER
`
`SUPERB SPICES AND NUTS
`
`SOME 0!‘ THE DELICIOUS VARIETIES
`
`ARE:
`
`DOUBLE CHOCOLATE CHIPS
`
`CHOCOLATE CHIP PECANS
`
`OATMEAL RAISINS
`
`CHOCOLATE RASPBERRY CHIPS
`
`QHUNKY PEANUT BUTTER
`
`SNICKERDOODLES
`
`TRIPLE SIZED BISCOTTIS
`
`IN A VARIETY OI‘ YUMMY COMBINATIONS
`
`*1O Smr EnTerprises*
`(DBO) Cookie Preserfis
`
`4166 Lasalle Drive
`
`/Palm Harbor‘, FL 34685
`~""A Florida Licenced Bakery
`
`727-692-9064
`
`

`
`TEXASBIGBITES
`
`A Genuine Cowboy Hat
`For your special Dad, Granddad or Friend
`Brimmed with
`
`TEXASBIGBITES:
`
`Baked With Organic Whole Wheat Flour, Organic Butter,
`Superb Spices, Award Winning Chocolate for
`Chocolate Chips, Old Fashioned Oatmeal Raisins,
`Lemon or Italian Biscottis, Macadamia Nut Bars, Pistachio
`Creams, Brownies, or whatever you want Lynn to bake
`For this gift that will be Unique and Scrumptiouslynutritious!
`
`727-692-9064 to place your order
`
`

`
`
`
`
`Baked With Organic Whole Wheat Flour, Organic Butter,
`Superb Spices, Award Winning Chocolate for
`Chocolate Chips, Old Fashioned Oatmeal Raisins,
`Lemon or Italian Biscottis, Macadamia Nut Bars, Pistachio
`Creams, Brownies, or whatever you want Lynn to bake
`For this gift that will be Unique and Scrumptiouslynutritious!
`
`
`
`
`
`727-692-9064 to place your order
`
`TEXASBIGBITES
`
`Give a Special Gift Box of
`'l'exasBigBites
`The tasting experience will be unforgettable!
`
`TEXASBIGBITES:
`
`
`
`
`
`
`
`

`
`

`
`
`
`TEXASBIGBITES
`
`Give a Special Gift Box of
`'l'exasBigBites
`Filled with
`
`Biscottis For a Cup of Coffee or for Your Café.
`The tasting experience will be unforgettable!
`
`TEXASBIGBITES:
`
`
`
`
`
`
`
`
`
`
`
`Baked With Organic Whole Wheat Flour, Organic Butter,
`Superb Spices, Award Winning Chocolate for
`Chocolate Chips, Old Fashioned Oatmeal Raisins,
`Lemon or Italian Biscottis, Macadamia Nut Bars, Pistachio
`Creams, Brownies, or whatever you want Lynn to bake
`For this gift that will be Unique and Scrumptiouslynutritious!
`
`
`
`727-692-9064 to place your order
`
`

`
`

`
`
`
`
`
`
`
`
`
`
`
`TEXASBIGBITES
`
`A Special Way to Say Get Well or
`To be Remembered as a Pharmaceutical Rep.
`With our unique Doctor’s Bag filled with your choice of
`'l'exasBigBites
`Baked With Organic Whole Wheat Flour, Organic Butter,
`Superb Spices, Award Winning Chocolate for
`Chocolate Chips, Old Fashioned Oatmeal Raisins,
`Lemon or Italian Biscottis, Macadamia Nut Bars, Pistachio
`
`
`
`
`Creams, Brownies, or whatever you want Lynn to bake
`For this gift that will be Unique and Scrumptiouslynutritious!
`
`727-692-9064 to place your order
`
`
`
`
`
`
`
`
`

`
`

`
`
`
`TEXHSBIGBITES
`
`V
`I ’
`
`~
`
`
`
`_
`
`A
`
`3
`
`é
`
`.
`
`Give a Special Gift Box of
`'l'exasBigBites
`
`The tasting experience will be unforgettable!
`
`TEXASBIGBITES:
`
`Baked With Organic Whole Wheat Flour, Organic Butter,
`Superb Spices, Award Winning Chocolate for
`Chocolate Chips, Old Fashioned Oatmeal Raisins,
`Lemon or Italian Biscottis, Macadamia Nut Bars, Pistachio
`Creams, Brownies, or whatever you want Lynn to bake
`For this gift that will be Unique and Scrumptiouslynutritious!
`
`727-692-9064 to place your order
`
`ai#*!f;..
`
`«
`
`I
`
`tw
`
`I L’
`
`\
`
`

`
`

`
`National Registry of
`
`Food Safety Professionals
`
`certifies
`
`LYNN MAHER
`
`Has Successfully Satisfied The Requirements For
`
`The Food Safety Manager
`
`Certification Examination
`
`PRESIDENT:
`
`Emmmms
`E 33
`
`£’§»£_:__
`
`Lawrence J. Lynch
`ISSUE DATE:
`
`June 24, 2003
`
`This certificate is not valid for more thin five
`years fivm date of issue.
`Ex./V
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer,
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`\/\/\1\/xxx/xxx/\/\/x/Q
`
`Opposition No. 91181131
`
`APPLICANT'S RESPONSE TO OPPOSER'S
`REQUEST FOR PRODUCTION
`
`OBJECTIONS
`
`In response to Opposer's Requests for production of documents
`
`and things, Applicant objects to producing the documents at the
`
`offices of Opposer's attorneys in Chicago as set forth in Opposer's
`
`request.
`
`Instead Applicant will produce the documents at the place
`
`where they are kept, namely at Applicant's place of business at
`
`10 Star Enterprises, Inc., 2306 U.S. Highway 377, Pilot Point, Texas
`
`76258.
`
`Most of Opposer's requests for documents are too ambiguous to
`
`be sure of what
`
`they mean and what
`
`the document requests call for
`
`and therefore Applicant will produce all of Applicant's documents
`
`for inspection and copying, except for documents relating to taxes
`
`and attorney—client documents (all of which were created after this
`
`Opposition was filed) and Opposer can classify the documents in
`
`accordance with its document requests if it wishes to do so.
`
`In the above regard, it is noted that the document requests
`
`were addressed to Applicant and do not require any production of
`
`

`
`Mrs. Maher's personal documents.
`
`Applicant objects to giving Opposer any information
`
`whatsoever about attorney—client documents after this Opposition was
`
`filed, since it would reveal information about Applicant's
`
`preparation for trial.
`
`There are no attorney—client documents that were before this
`
`Opposition was filed.
`
`RESPONSE TO REQUESTS
`
`1. All documents and things identified, referenced, or
`
`described in Applicant's response to Opposer's First Set Of
`
`Interrogatories To Applicant.
`
`A.
`
`Subject
`
`to the above objections these documents will be
`
`produced.
`
`2. All documents and things that Applicant consulted or
`
`relied upon in answering Opposer's First Set Of Interrogatories To
`
`Applicant.
`
`A. Applicant's advertisements will be produced.
`
`3. Documents and things sufficient to identify each of
`
`Applicant's Goods.
`
`A. Applicant's advertisements will be produced.
`
`4. All documents that relate or refer to Applicant's
`
`consideration, design, development, selection, adoption, or first
`
`use of the TEXAS BIG BITES mark,
`
`including but not limited to any
`
`search reports, clearance opinions,
`
`investigations and market
`
`studies.
`
`A. This request is objected to as ambiguous.
`
`5. Documents that substantiate the date of Applicant's first
`
`

`
`use of the TEXAS BIG BITES mark for Applicant's Goods.
`
`A. None.
`
`6. Documents that substantiate the date of Applicant's first
`
`sale of Applicant's Goods.
`
`A. None.
`
`7. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1990.
`
`A. Applicant is a corporation and had not been formed as
`
`early as 1990.
`
`8. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1991.
`
`A. Applicant is a corporation and had not been formed as
`
`early as 1991.
`
`9. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1992.
`
`A. Applicant is a corporation and had not been formed as
`
`early as 1992.
`
`10. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1993.
`
`A. Applicant is a corporation and had not been formed as
`
`early as 1993.
`
`11. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1994.
`
`A. Applicant is a corporation and had not been formed as
`
`early as 1994.
`
`12. Documents and things that show Applicant's use of the
`
`TEXAS BIG BITES mark for organic pastries in 1995.
`
`

`
`A. Applicant is a corporation and had not been formed as
`
`early as 1995.
`
`13. Documents and things that show Applicant's use of the
`
`TEX