Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA385231
`ESTTA Tracking number:
`12/22/2010
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91196375
`Plaintiff
`OMS Investments, Inc.
`JOHN GARY MAYNARD III
`HUNTON & WILLIAMS LLP
`951 E BYRD ST
`RICHMOND, VA 23219
`UNITED STATES
`hwritm@hunton.com
`Motion to Strike
`John Gary Maynard
`hwritm@hunton.com
`/John Gary Maynard/
`12/22/2010
`Motion to Strike - Opp No. 91196375 John Parella - executed.pdf ( 4 pages
`)(120725 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA385231
`ESTTA Tracking number:
`12/22/2010
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91196375
`Plaintiff
`OMS Investments, Inc.
`JOHN GARY MAYNARD III
`HUNTON & WILLIAMS LLP
`951 E BYRD ST
`RICHMOND, VA 23219
`UNITED STATES
`hwritm@hunton.com
`Motion to Strike
`John Gary Maynard
`hwritm@hunton.com
`/John Gary Maynard/
`12/22/2010
`Motion to Strike - Opp No. 91196375 John Parella - executed.pdf ( 4 pages
`)(120725 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Trademark Application Serial No. 77/844,382
`
`Opposition No. 91196375
`
`) ) ) )
`
`) ) ) )
`
`) )
`
`OMS Investments, Inc.,
`
`Opposer,
`
`V.
`
`John Parella,
`
`Applicant.
`
`OPPOSER’S MOTION TO STRIKE APPLICANT’S ANSWER
`
`Opposer OMS Investments, Inc. (“Opposer”), through its undersigned attorneys, requests
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`that the Board strike Applicant John Parel1a’s (“Applicant”) Answer dated November 26, 2010
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`(“Amended Answer”).
`
`FACTS
`
`On September 3, 2010, Opposer filed a Notice of Opposition against Applicant’s GRO-
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`LIKE-A—PRO application, the subject of Application‘ Serial No. 77/844,382. As grounds for its
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`opposition, Opposer asserted priority of use and likelihood of consumer confusion under
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`Trademark Act Section 2(d), as well as trademark dilution under Trademark Act Section 43(0).
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`15 U.S.C. § 1052 (d), 15 U.S.C. 1125 (c).
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`On September 25, 2010, Applicant’s attorney filed a motion to withdraw as counsel of
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`record. Thereafter, on October 12, 2010, Applicant requested an extension of time to respond to
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`Opposer’s Notice of Opposition. On October 25 , 2010--prior to a decision from the Board
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`regarding his extension request, Applicant filed his Answer (“previous Answer”). The Board
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`informed Applicant on November 8, 2010, that his previous Answer did not comply with
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`77730040004 EMF_US 3379l030vl
`
`
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`applicable rules, including the Board’s rules as well as the Federal Rules of Civil Procedure.
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`Consequently, the Board disregarded Applicant’s previous Answer and directed him to provide
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`an Answer that complied with applicable rules by November 29, 2010. On November 26, 2010,
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`Applicant submitted his Amended Answer.
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`ARGUMENT AND AUTHORITY
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`Applicant’s Answer must contain admissions to, or denials of, the allegations in
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`Opposer’s Notice of Opposition and may include any defenses to those allegations. TBMP §
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`31 l.0l(a). If Applicant is without knowledge or information sufficient to form a belief as to the
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`truth of an allegation, Applicant must state so accordingly, and this will have the effect of a
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`denial. Id. at § 31 l.02(a).
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`Applicant’s Amended Answer falls far short of a responsive pleading that comports with
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`applicable rules as it suffers from two fatal flaws: 1.) Applicant’s Amended Answer, like his
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`previous Answer, does not confirm or deny Opposer’s allegations; and 2.) Applicant’s Amended
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`Answer merely argues the merits of his position. Taken together, these deficiencies amount to a
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`purported Answer filed by Applicant that is nothing more than a non-responsive and
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`argumentative document that runs afoul of the Board’s rules.
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`Other than Applicant’s admission of his name and address in paragraph 1 of his Amended
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`Answer, Applicant neither admits nor denies Opposer’s allegations. Furthermore, Applicant uses
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`his numbered responses to argue the merits of his position—-which is forbidden by the Board’s
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`rules. See TBMP § 31 l.02(a) (“The defendant should not argue the merits of the allegations in a
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`complaint but rather should state, as to each of the allegations contained in the complaint, that
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`the allegation is either admitted or denied.”) As just one example of Applicant’s repeated
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`argumentative statements, in paragraph 6 of Opposer’s Notice of Opposition, Opposer asserts
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`
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`that its Marks have been prominently featured in online advertising campaigns, and have been
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`the subject of a significant amount of unsolicited press.
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`In response, Applicant asserts Opposer
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`“provides no proof of any unsolicited press or association. . .Other GRO marks in the
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`marketplace have been in use for decades alongside MIRACLE—GRO without confusing the
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`consumer.” Thus, as in his previous Answer which was not considered by the Board, Applicant
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`has used his Amended Answer to argue his position, as opposed to confirming or denying
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`Opposer’s allegations. For this reason, Applicant’s Amended Answer should be stricken and
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`given no consideration by the Board.
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`CONCLUSION
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`For the foregoing reasons, Opposer respectfully requests that the Board grant this Motion
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`to Strike Applicant’s Answer.
`
`This 22nd day of December, 2010.
`
`OMS INVESTMENTS, INC.
`
`
` John
`
`Ed
`
`ary Maynard,
`rd T. White
`
`II
`
`Janet W. Cho
`
`Hunton & Williams LLP
`
`951 East Byrd Street
`Riverfront Plaza, East Tower
`
`Richmond, VA 23219-4074
`
`Telephone (804)788-8200
`
`Attorneys for Opposer OMS Investments, Inc.
`
`
`
`Certificate of Service
`
`I hereby certify that a true and complete copy of the foregoing Motion to Strike
`Applicant’s Answer has been served on Mr. John Parella by mailing said copy on
`December 22, 2010, via First Class Mail, postage prepaid to:
`
`Mr. John Parella
`
`1625 Lockridge Dr.
`
`Cumming GA 30041
`
`
`
`Janet W. Cho
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