UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CLOVERHILL PASTRY
`
`VEND CORPORATION,
`
`Opposer,
`
`1
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`\a\/\/\/\/\./\/g/\/\/\/\/\/\/\/
`
`TTAB
`
`Opposition No. 91181131
`
`1?‘? ‘7M7<>”//«Ho
`
`APPLICANT'S OBJECTIONS and RESPONSES
`
`TO OPEOSER'S MOTION FOR SUMMARY JUDGMENT
`
`In support of the matters raised in this paper, Applicant
`
`relies on the following:
`
`1. Declaration of Richard Badger*
`
`2. Declaration of Mrs. Maher*
`
`3. Declaration of Rosemary Hammerl**
`
`4. Declaration of Terrie Tuckman**
`
`5. Declaration of Glenn G. Strawder
`(Original is appended hereto).
`
`* The original of this declaration is appended to Applicant's
`initial response filed February 23, 2010 to Opposer's Motion to
`Amend its Pleadings. A copy of the declaration is appended.
`
`** Original attached to Applicant's Supplemental Response
`(filed on even date herewith, copy appended hereto)
`to Opposer's
`Motion to Amend.
`
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`Applicant objects to, and Moves to strike,
`
`that part of
`
`Opposer's Motion for Summary Judgment that asserts that Applicant's
`
`"intent to use" trademark application was signed in bad faith.
`
`The
`
`objectionable subject matter comprises the following portions of
`
`Opposer's Motion for Summary Judgment: Page 1,
`
`lines 1
`
`to 8; all of
`
`the subject matter starting at line 10 of page 2 to line 8 of page
`
`4; page 5,
`
`line 3 to page 7,
`
`line 6.
`
`Applicant objects to Opposer adding Trademark Registration
`
`3,475,697 to this case. That registration issued in July 2008.
`
`Opposer waited one year and seven months before seeking to add that
`
`Mark to this Opposition.
`
`Applicant objects to that part of Opposer's Motion to Amend
`
`which seeks to change the name of the Opposer.
`
`Applicant objects to and moves to strike that portion of
`
`"Opposer's Motion for Summary Judgment" that relates to the issue of
`
`whether Applicant's "Intent to Use" Application was signed in good
`
`faith.
`
`The grounds for the objection are that Applicant will be
`
`seriously prejudiced if Opposer is allowed to raise the new
`
`issues.
`
`The foregoing objectionable matters prejudices Applicant in
`
`the following ways: Applicant 10 Star is owned by an elderly widow,
`
`who lost her husband in 2009, and who is trying to develop her
`
`cookie business. Her lawyer is 96 years old.
`
`The longer this
`
`opposition continues the greater the chance the delays, not
`
`the
`
`merits, will eliminate Applicant.
`
`Secondly, as shown by the Badger
`
`declaration, Ted Maher was active in running the Applicant
`
`
`
`
`
`

`
`
`
`corporation. Applicant presented a better and stronger case against
`
`Opposer when Ted Maher was alive. Applicant is therefore prejudiced
`
`by delays that postpone new issues until after Mr. Maher's death.
`
`The discovery period for this opposition was extended
`
`pursuant to Opposer's motions (Applicant consenting)
`
`to almost
`
`two
`
`years.
`
`Indeed, see the TTAB order of August 27, 2009 where this
`
`Board said: "The parties should resolve any future discovery
`
`disputes promptly and allow the case to go forward to trial without
`
`further Board intervention."
`
`The Board then allowed Applicant to
`
`file its motion for summary judgment.
`
`Further the TTAB's Order of January 7, 2010 shows that the
`
`Board seeks to exercise control over new matters that the parties
`
`raise. Opposer has ignored that Order.
`
`Opposer at page 1,
`
`line 8 of its motion for summary judgment
`
`says it learned about its "bad faith" defense in September 2009 when
`
`it says it learned that Applicant did not have any documents such as
`
`a business plan. But Opposer knew this same fact in the Summer of
`
`2008. This subject was fully developed on page 2 to 4 of
`
`Applicant's "Preliminary Response to Opposer's Motion to Amend"),
`
`filed February 23, 2010.
`
`See also pages 2 and 3 of Applicant's
`
`Supplement
`
`to Applicant's Preliminary Response to Opposer's Motion
`
`to Amend), filed in late March 2010.
`
`

`
`BRIEF STATEMENT OF FACTS
`
`In the year 2000, Mr. and Mrs. Maher ran a day care center in
`
`Maryland. Terrie Tuckman had a child in the day care center and
`
`received cookies that Mrs. Maher made.
`
`(Tuckman dec.).
`
`By 2001,
`
`the Mahers had moved to Florida.
`
`Indeed,
`
`in 2001
`
`Mr. Maher formed the Florida corporation named 10 Star Enterprises,
`
`Inc.
`
`(Maher dec.) and in that year started consulting Mr. Badger, a
`
`CPA whose advises small businesses.
`
`The Badger declaration proves
`
`the following: The Mahers sent Badger some cookies
`
`and a letter
`
`(Exhibit A) having a letterhead "Cookie Presents".
`
`The
`
`letter made
`
`it clear that the company was selling cookies.
`
`A second document
`
`that was sent by the Mahers to Badger was an advertisement
`
`(Exhibit
`
`B) which Badger construed to refer to an organic ingredient in the
`
`cookies. Mr. Badger said:
`
`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 seld cookies.
`I was m understandin from Mr. M h r that he h d
`the
`o
`f a cookie
`ll
`f
`he in redien s of w ich
`were organic.
`(Emphasis Added)
`
`The attached Hammerl declaration shows that by the years 2006
`
`and 2007, Mrs. Hammerl was helping Mrs. Maher in the cookie
`
`business. Mrs. Hammerl says that the Mahers garage had been
`
`converted into a cookie bakery. Mrs. Hammerl also says:
`
`"In both the years 2006 and 2007, Mrs. H.C. Maher was
`in the cookie business. She was selling cookies that
`H
`had an organic ingredient. Her oal was to make cooki s
`in which ell ef the ingredients were erganie.
`(Emphasis added)
`
`

`
`The way of developing a cookie having all of its ingredients
`
`organic was to find ingredients that were not only organic and
`
`suitable for use in making cookies but enables the cookie to meet
`
`the taste test.
`
`See Maher dec. and page 7 infra.
`
`However, finding such organic ingredients is easier said than
`
`done. After years of searching, a complete set of organic
`
`ingredients that meet
`
`the taste test has not been found but probably
`
`will be found soon (see Maher dec. and page 7 infra).
`
`One factor that Opposer does not take into account is that
`
`when Mrs. Maher signed the "intent to use" in 2006 she had her
`
`husband who got advice from Mr. Badger; whereas since 2009 Mrs.
`
`Maher has been a widow with an estate,
`
`two oppositions and a cookie
`
`business. Thus, after Mr. Maher's death less work can be done than
`
`before.
`
`Opposer's attack is that Mrs. Maher should have done more
`
`sooner. However, Opposer offers no proof that more could have been
`
`done much less sooner. However,
`
`just because Opposer could do more,
`
`quicker, even if true, has no bearing on Mrs. Maher's good faith.
`
`One Opposer argument is that Mrs. Maher should have filed a
`
`request for approval by the Department of Agriculture.
`
`However, such approval would be out of date the moment Mrs.
`
`Maher finds a new combination of ingredients. This is very likely
`
`since she is still on the lookout for new ingredients as they come
`
`on the market.
`
`(Maher dec.).
`
`‘
`
`i
`
`1
`
`

`
`THE EVIDENCE SHOWS MRS. MAHER
`ACTED IN GOOD FAITH WHEN SHE SIGNED
`
`THE "INTENT TO QSE" APPLIQATION
`
`As
`
`the Badger declaration clearly shows the Applicant's
`
`corporation had cookies having an organic ingredient starting in
`
`2001. Therefore, Mrs. Maher had over five years of experience
`
`toward her goal of producing a cookie in which all of the
`
`ingredients were organic when she signed the "intent to use”
`
`trademark application in 2006.
`
`Thus, it is clear that, according to the Badger and Hammerl
`
`declarations,
`
`from 2001 to and inclusive of 2007, Mrs. Maher was
`
`selling cookies having at least one organic ingredient with a goal
`
`of all ingredients being organic.
`
`Indeed, both the Badger and
`
`Hammeral declarations overlap for the years 2006 and 2007.
`
`The foregoing evidence is clearly far more than enough to
`
`show that Mrs. Maher acted in good faith when she signed the "intent
`
`to use" declaration in 2007.
`
`THE EXTENSIVE EXCERPTS FROM
`APPLICANT'S INTERROGATORY
`ANSWERS ARE BINDING ON OEPQSER
`
`On February 8, 2010, Opposer filed papers with extensive
`
`excerpts from Applicant's answers to Opposer's interrogatories and
`
`other discovery.
`
`Those answers are binding on Opposer since Opposer
`
`placed them in the record.
`
`See Corpus Juris Secundum, Vol. 27,
`
`Discovery Sec. 97:
`
`The answers to interrogatories are not conclusive and
`may be contradicted by other evidence; but, unless
`contradicted,
`they are binding egainet the party
`introducing the .
`(Emphasis added)
`
`***
`
`

`
`h
`
`th in err at ri s
`k
`art who
`Where
`nsw rs in evid n e
`h or sh v u
`the
`introduce
`for their credibility and admits that the answering
`art
`i worth of
`r dit. Unl
`c n r
`ic
`b
`evidence,
`the truth of the answers stands as against
`the party who introduces them.
`(Emphasis added)
`
`es
`
`
`
`In other words, Opposer cannot put that discovery in the
`
`record and try to draw one conclusion from it without the other
`
`party having the right to rely on it also. Applicant submits that
`
`the interrogatory answers which Opposer placed in the record are
`
`sufficient to decide this case in favor of Applicant.
`
`An example of
`
`a pertinent interrogatory answer follows:
`
`ANSWER TO INTERROGATQRY 24
`
`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 continuos 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.
`
`THE LAW DOES NOT REQUIRE
`DOCUMENTS AS PART OF THE
`PROOF OF GOOD INTENT
`
`On page 5 of Applicant's Preliminary Response, Sec. 19.14 of
`
`McCarthy was cited to say Trademark Rule 2.89(d) states the law as
`
`to the proofs required for the proof of good intent.
`
`Those rules do
`
`not mention "documents".
`
`Opposer's Summary Judgment brief at page 5 quotes the L.C.
`
`Licensing case as follows:
`
`

`
`ex l in or ou wei h
`... bsent facts which a
`n
`oc m nts
`the fail re
`f an a
`li an
`0
`l imed in en
`on i
`su orti
`f or be rin
`its mark in commerce,
`the absence of any documentary
`evidence on the part of an applicant regarding such an
`intent is sufficient to prove that the applicant
`lacks a bona fide intention to use the mark in
`commerce as required by Section 1(b).
`(Emphasis added)
`
`1
`h v
`
`se
`
`A reading of the whole L.C. Licensing case refers to a single
`
`person who signed the "intent to use" application. That single
`
`person was obviously trying to steal part of his opponents rights.
`
`He had no corroborating witnesses. His
`
`e
`
`imon
`
`w
`
`hi hl
`
`evasive.
`
`The Board made it clear that where there was adequate
`
`proof, documents were not required.
`
`The requirement, if any, for documents does not apply to this
`
`case, since the Badger, Maher and Tuckman declarations identify 13
`
`documents.
`
`Those declarations plus the Hammeral declaration are
`
`sufficient to meet McCarthy's requirements as well as the underlined
`
`portion to the above—quoted portion of the L.C. Licensing case.
`
`OPPOSER'S THEORY OF
`THIS CA§E IS UNREASONABLE
`
`Opposer appears to contend that Applicant should have
`
`documents describing every aspect of this case. However, if
`
`Applicant had that it would be more suspicious than anything else.
`
`A woman who has made cookies for years hardly needs to make any
`
`documents.
`
`0
`
`er
`
`es no
`
`t ll hi Bo r wha
`
`do
`
`m n
`
`i
`
`b li v s sh u
`
`exi
`
`n wh
`
`a woman who m
`
`e
`
`kies in h r hom
`
`would have any such documents. Moreover, Mrs. Maher has been
`
`working on this project nine years (2001-2010) and the Mahers have
`
`moved twice.
`
`If documents did exist,
`
`there is a likelihood they
`
`would not still exist.
`
`

`
`
`
`:1.wr.5--
`
`THE MARKS ARE NOT
`
`CONFUSINQLY SIMILAR
`
`All of Opposer's proofs are too vague to mean anything.
`
`For
`
`example, Opposer says that its products have been praised and/or
`
`honored by certain organizations. But without more evidence as to
`
`these organizations,
`
`their approval is meaningless. Moreover,
`
`they
`
`do not tell us what goods were praised and which trademarks apply to
`
`the goods.
`The vagueness of Opposer runs throughout Opposer's proofs.
`
`Opposer deals largely with conclusions without proof of facts.
`
`For example, Opposer has three trademarks, but nowhere does
`
`Opposer prove which mark applies to each alleged fact.
`
`For example,
`
`the third trademark is not in the case.
`
`How do we know whether or
`
`not all of Opposer's sales were made under only the third trademark?
`
`Since the third trademark was not pleaded and only the other
`
`two trademarks are involved, how do we know which one or ones of
`
`those marks was used on the products sold?
`
`If all trademarks were
`
`used at the same time all marks must be treated as a unit when
`
`considering the question of confusion.
`
`Thus, Opposer hasn't proved anything.
`
`As for each of Opposer's trademarks there is no clear
`
`statement that the trademark has been used much less a statement of
`
`the area of its use or the specific goods it was used with.
`
`PRIOR REGISTRATION 1,226,815
`LIMITS THE SCQPE QF OPEQ§ER'§ MARKS
`
`One issue that is very important is prior registration
`
`1,226,815 which is for Hamburger Sandwiches, etc.
`
`In Applicant's
`
`prior briefs Applicant pointed out that the word "sandwiches"
`
`

`
`includes bread. Opposer's brief at page 10 denies this fact,
`
`however, Opposer cites no evidence. Moreover,
`
`the "Concise Oxford
`
`American Dictionary" (dated 2006) defines "sandwich" as "an item of
`
`food consisting of two pieces of bread with meat, cheese or other
`
`filling between them".
`
`(Emphasis added)
`
`Applicant suggests the TTAB consult its dictionary as to the
`H
`
`meaning of the word
`
`sandwich".
`
`The BIG TEX trademark 1,226,815 is so close to Opposer's mark
`
`BIG TEXAS that the latter mark must be strictly construed.
`
`THE WORD ORGANIC IS IMPQRIANT
`
`The attached Strawder declaration shows that organic products
`
`are sold by typical stores in a way that makes them distinct from
`
`their inorganic counterparts. Thus, it follows that a person who
`
`prefers organic products will carefully study the products of the
`
`parties before they buy.
`
`Since organic products sell at a higher
`
`price than their inorganic counterparts,
`
`the price of Applicant's
`
`products will tend to distinguish those products.
`
`If a person
`
`prefers organic products, he or she would buy Applicant's product.
`
`People who buy based on price would buy the products of Opposer or
`
`other makers of inorganic products.
`
`Opposer says its statement of goods comprehends organic
`
`products. However,
`
`there is no evidence that Opposer has plans to
`
`sell an organic product.
`
`The people who buy organic products, such as organic pastry,
`
`would probably give the products that they buy greater scrutiny than
`
`the average person who does not buy organic products.
`
`10
`
`
`
`

`
`
`
`E.
`E;
`F4
`E’.
`F{
`
`C N
`
`ION
`
`1. Opposer's attempt to include the unpleaded "bad faith"
`
`issue, and the unpleaded Registration 3,475,697 issue,
`
`in the
`
`Summary Judgment issues should be denied.
`
`If they are issues,
`
`the
`
`Motion for Summary Judgment as to them, and each of them should be
`
`denied.
`
`2. Applicant's motion for Summary Judgment should be
`
`granted.
`
`3. Opposer's Motions for Summary Judgment should be denied.
`
`Respectfully submitted,
`
`William D. Hall
`
`Register 14,311
`Attorney at Law (Maryland)
`10850 Stanmore Drive
`Potomac, MD 20854-1522
`Tel. 301 983-5070
`Fax
`301 765-0112
`
`QERTIFIQATE QF SERVICE
`
`I, William D. Hall, hereby certify that I served a true and
`complete copy of "APPLICANT'S OBJECTIONS and RESPONSES TO OPPOSER'S
`MOTION FOR SUMMARY JUDGMENT" on the attorney for Opposer (Brett A.
`August, Esq.), via U.S. first—class mail, postage prepaid, this
`23rd day of March 2010:
`
`Brett A. August, Esq.
`Pattishall, McAuliffe, Newbury,
`Hiliard & Geraldon, LLP
`311 South Wacker Drive, Suite 5000
`
`Chicago,
`
`IL 60606.
`
`
`
`
`
`William D. Hall
`
`11
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91181131
`
`) ) ) ) ) )
`
`) ) ) ) )
`
`) )
`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer,
`
`V-
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`
`DECLARATION QF ROSEMARY HAMMERL
`
`I, Rosemary Hammerl, of 3097 Arbor Oaks Drive, Tarpon Springs,
`
`Florida 34688, have personal knowledge of the facts stated below and
`
`could, if called as a witness, testify as to them.
`
`In both of the years 2006 and 2007, Mrs. H.C. Maher was in the
`
`cookie business.
`
`She was selling cookies that had an organic
`
`ingredient. Her goal was to make cookies in which all of the
`
`ingredients used in making the cookies were organic.
`
`She had
`
`converted the garage of her house in Palm Harbor, Florida to a bakery
`
`for making cookies.
`
`I was in the garage that had been converted to a kitchen
`
`several times. Mrs. Maher had some of her cookie advertisements
`
`hanging on the wall of the garage that had been converted to a
`
`kitchen.
`
`I went with Mrs. Maher on several occasions in both 2006 and
`
`2007 when she delivered cookies to her customers.
`
`

`
`I hereby certify under the penalties of perjury that the
`
`foregoing is true and correct.
`*4
`Executed this ¢£_&day of March 2010.
`
`
`
`
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91181131
`
`) ) ) ) ) )
`
`) ) ) ) ) ) )
`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer,
`
`v.
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`__________________________
`
`DE L
`
`TI
`
`T
`
`T
`
`I, Terrie Tuckman, of 101 Smoothleaf Lane, Gaithersburg, MD
`
`20878, have personal knowledge of the facts stated herein and could,
`
`if called as a witness, testify to them.
`
`I knew Mrs. Maher when she, and her husband ran a day care
`
`center in North Potomac, Maryland about the year 2000.
`
`I had my
`
`child in her day care school. At that time Mrs. Maher also made
`
`cookies.
`
`I know this since she gave some of them to me.
`
`After she closed her day care center Mrs. Maher moved to
`
`Florida. While she was in Florida she sent me an advertisement of
`
`the cookies she was selling.
`
`I threw the advertisement away, but
`
`I
`
`remember it well.
`
`The enclosed advertisement marked Exhibit P is a
`
`duplicate of the advertisement she sent to me from Florida.
`
`

`
`I certify under the penalties of perjury that the foregoing
`
`is true and correct.
`
`Executed at Rockville, MD thisfiifié day of March 2010.
`
`2
` 2/
`Terrie Tuckman
`
`,
`
`
`
`
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91181131
`
`)
`
`) ) )
`
`) )
`
`) )
`
`)
`
`)
`
`)
`
`CLOVERHILL PASTRY
`
`VEND CORPORATION
`
`Opposer,
`
`v.
`
`l0 STARR ENTERPRISES, INC.,
`
`Applicant.
`
`DECLARATION OF RICHARD S. BADGER
`
`J, 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, fiom about 1985 until his death in 12009,
`
`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 ofthe ingredients
`of which were organic.
`
`Exhibit A is the original ofthe 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 ofMr. 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 ceitify under the penalties of perjury that the foregoing is true and correct.
`
`Executed in Vienna, VA this
`
`2
`
`day of February, 2010.
`
`
`
` Richard S. Badger
`
`

`
`
`
`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
`cmmbs.
`
`With warm regards,
`/
`
`V57?/W“/A
`
`«¢
`
`Exhibit A
`
`

`
`SILK FLOWER WREATH $30.00
`
`VALENTINE PAIL $10.00
`
`UNIQUE VALENTINE'S DAY COOKIE ARRANGEMENTS FOR FAMILY,
`FRIENDS, AND YOUR SPECIAL SOMEONE. AWARD WINNING
`INGREDIENTS WITH NO PRESERVATIVES. TASTE THE QUALITY!
`
`FREE DELIVERY
`
`A FLORIDA LICENSED BAKERY
`
`727-938-6565
`
`Exhibit B
`
`

`
`CLOVERHILL PASTRY
`VEND CORPORATION
`
`Opposer
`
`'
`
`Opposition No. 91181131
`
`10 STAR ENTERPRISES,
`
`INC.,
`
`Applicant.
`
`
`DECL ATI
`
`OF HATH LYND 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 Z
`
`i day of February 2010.
`
`
`
`

`
`(850)487-6013
`
`01/25/01 14:22 Fl Dept 0f State
`
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`
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`
`firpartmrnt nf Eta!»
`
`I certify the attached is a true and correct copy of the Articles of
`Incorporation of 10 STAR ENTERPRISES,
`INC., 3 Florida corporation, filed
`on January 25, 2001, as shown by the records of this office.
`
`I further certify the document was electronically received under FAX audit )7
`number H01DO0D1D610. This certificate is issued in accordance with
`~
`section 15.16, Florida Statutes, and authenticated by the code noted below 13
`
`‘
`
`The document nuber of this corporation is P01DOD009475.
`
`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: 401ADO0D4269-012501-PO1000009475-1/1
`
` H 4"
`
`
`Qizxliibifci
`
`

`
`Audit # H01000010610
`
`ARTICLES OF INCORPORATION
`
`OF
`
`I 0 STAR ENTERPRISES, IIVC.
`
`The undersigned incorporator to these Articles ofIncorporation hereby forms
`
`a corporation under the laws ofthe State ofFlorida as follows?
`
`ARTICLE I
`
`flgme ang Agdg
`
`The name ofthis Corporation is:
`
`10 Star Enterprises, Inc.
`
`The mailing address and street address of the Corporation are:
`
`4166 LaSalIe Dr.
`
`Palm Harbor, FL 34685
`
`ARTICLE 1]
`
`Term of Ex§§e_1_I'ce
`
`This Corporation shall have perpetual existence, commencing upon the date offiling of
`
`these Articles with the Florida Depanment of State.
`
`ARTICLE 111
`
`P._u_r2<22
`
`This Corporation is organized for the purpose of transacting any and all Iawfixl 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 #H010000l0610
`
`Exhibit C
`
`

`
`(c)
`
`To have a corporate seal, which may be altered at will, and to use it , or a facsimile of it,
`
`Audit # H01000OlO6lO
`
`by impressing, or affixing 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,
`
`(f)
`
`To lend money to, and use its credit to assist, its officers and employees to the firll 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 ofthe corporation), and secure any of its obligations by mortgage or
`
`pledge of any of its property, fianchises, and income and make contracts ofguaranty and
`
`suretyship which are necessary or convenient to the conduct, promotion, or attainment of the
`
`business ofa corporation the majority ofthe outstanding stock ofwhich is owned, directly or
`
`indirectly, by the contracting corporation; a corporation which owns, directly or indirectly, a
`
`majority ofthe outstanding stock ofthe contracting corporation; or a corporation the majority of
`
`the outstanding stock ofwhich 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 ofthe contracting corporation, and make
`
`other contracts of guaranty and suretyship which are necessary or convenient to the conduct,
`
`promotion, or attainment ofthe 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 ofi any other entity;
`
`(i)
`
`To lend money,
`
`invest and reinvest its funds, and receive and hold real and personal
`
`property as security for repayment;
`
`(j)
`
`To conduct its business, locate oflices and exercise the powers granted by this act within
`
`or without this state;
`
`i Audit #HO1000O10610
`
`

`
`Audit # HOIOODOIOGIO
`To elect directors and appoint ofiicers, employees, and agents of the 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 ofthis state, for managing the business and regulating the aifairs ofthe Corporation;
`
`(m)
`
`To make donations for the public welfare or for charitable, scientific, or educational
`
`purposes;
`
`(11)
`
`(0)
`
`To transact any lawful 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 of its 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 fiar its benefit on the life of any of its directors, officers, 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 ofthe 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 filrthers
`
`the business and afiiairs ofthe corporation;
`
`ARTICLE V
`
`Capigj 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 R '
`
`d
`
`cc and
`
`ent
`
`The street address ofthe initial registered oflice ofthis Corporation is:
`
`4166 Lasalle Dr.
`
`Palm Harbor, FL 34685
`
`and the name of its registered agent at such address is:
`
`Theodore J. Maher
`
`Audit # HOl0000lO6]O
`
`

`
`Audit # P10100001 O6] 0
`
`ARTICLE VII
`
`Ini' B
`
`o Dir
`
`ors
`
`This Corporation shall have One director(s) initially. The mzmber 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:
`
`Nam
`
`Ad 1' ss
`
`Theodore J. Maher
`
`4166 Lasalle Dr.
`
`Palm Harbor, FL 34685
`
`ARTICLE VIII
`
`Incogporator
`
`The name and address ofthe person signing these Articles are:
`
`Name and Address
`
`Theodore J. Muller
`
`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-/"’
`
`/ T
`
`heodore J. Maher
`
`Audit # H01000010610
`
`

`
`Audit # HOl000010610
`
`ACCEPTANCE BY REG TERED AGENT
`
`Having been named as Registered Agent and to accept service of process for the above
`stated corporation at th