Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1263817
`
`Filing date:
`
`02/02/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91215293
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Monosij Dutta-Roy
`
`MONOSIJ DUTTA-ROY
`1450 LA FRANCE ST NE
`UNIT 461
`ATLANTA, GA 30307-2941
`UNITED STATES
`Primary email: monosij.legal@gmail.com
`Secondary email(s): monosij.accounts@gmail.com
`404-664-3605
`
`Motion for Rule 11 Sanctions (Not Discovery)
`
`Monosij Dutta-Roy
`
`monosij.legal@gmail.com, monosij.accounts@gmail.com
`
`/Monosij Dutta-Roy/
`
`02/02/2023
`
`72.MDR.USPTO.Motion.Sanctions.pdf(476468 bytes )
`72-0.MDR.USPTO.Brief.Motion.Sanctions.pdf(466574 bytes )
`OpenSky-v-VLSI.IPR-2021.Paper-102.Decision.pdf(892299 bytes )
`TTABVUE.91169175.OPP-23.pdf(41252 bytes )
`Real-Party-In-Interest-Goes-Bankrupt.pdf(38617 bytes )
`Lucky-Capital-v.-Miller-Martin.11th-Cir.pdf(138881 bytes )
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`US Application Serial No: 85684016
`
`OPPOSITION NUMBER: 91215293
`
`Friday, December 30, 2022
`
`| | | | | | | | | | | |
`
`MONOSIJ DUTTA-ROY
`
`Plaintiff/ Opposer: Dutta-Roy
`
`Counsel: pro se
`
`v.
`
`JYSK BED'N LINEN, D/B/A BY DESIGN
`
`Defendant/ Applicant : Jysk
`
`Counsel: Mr. Jonathan Fain
`
`US Application Serial No:
`
`85684016
`
`Opposition Number:
`
`91215293
`
`Word Mark:
`
`bydesignfurniture.com
`
`Plaintiff/ Opposer Dutta-Roy’s
`
`Motion for Sanctions on Counsel Jonathan Fain, with
`
`Attached Brief
`
`Leave of Board Requested in:
`
`Additional Discovery, Excess Pages
`
`

`

`Contents & Index
`
`Dutta-Roy v. Jysk
`
`Table of Contents
`CONTENTS & INDEX............................................................................................................................1
`LEAVE (EXCESS PGS, ADDTL DISC) IN PLAINTIFF’S MOTION FOR SANCTIONS {RULE 11
`+ TBMP 527.01}: TBMP 527.03...............................................................................................................1
`1. Inherent Authority to Sanction: ‘Taken Together’ in Combined Nature of this Motion in Judicial
`Efficiency.................................................................................................................................................................2
`2. Intent to Deceive/ Fraudulent Concealment: Beyond Medinol standard and mens rea Thereof................4
`3. Rule 11: A Show Cause after 10+ (incl. 5+) years in Abuse of Process?........................................................9
`A. ‘Taken Together’: Essence of ‘Abuse of Process’ Claims: Proportional to Conduct.................................................10
`4. Rule 26, Rule 37: Must & Will Clauses: Improper Certifications and ‘Failures’ by Jysk.........................11
`A. It is About Jysk’s First Amendment Right to Petition.................................................................................................12
`5. The REAL Question – Real Parties In Interest, Coercion/ Civil/ Antitrust Conspiracy/ Racketeering –
`and Any Secret Agreements Among ‘Separate Legal Entities’.........................................................................14
`6. In Real Accountability: Essential Aspects in Interim Reasonable Expenses for Dutta-Roy for $15M,
`Hedges Against International/ Bankruptcy........................................................................................................17
`7. Urgency in Family & Personal: $15M Sought: A Simple Calculation in a Fraction of the Sum of Torts 19
`A. Dutta-Roy’s Own Condition........................................................................................................................................ 21
`8. How and Where is Dutta-Roy to Address all of his Injuries?.......................................................................24
`9. Directed Verdict in Non-Appealable Order Requested.................................................................................25
`APPENDIX 1: LIST OF GEORGIA TORTS.........................................................................................2
`CERTIFICATE OF COMPLIANCE.......................................................................................................4
`CERTIFICATE OF SERVICE.................................................................................................................1
`
`i|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`LEAVE (Excess Pgs, Addtl Disc) IN PLAINTIFF’S MOTION
`FOR SANCTIONS {RULE 11 + TBMP 527.01}: TBMP 527.03
`
`Dutta-Roy v. Jysk
`
`Plaintiff/ Opposer Monosij Dutta-Roy (Dutta-Roy) files this Motion for Sanctions against Applicant/
`
`Defendant Jysk Bed’N Linen (Jysk) counsel Jonathan Fain (Fain/ Counsel Fain) for interim
`
`compensatory damages for $15M in an order by 37 C.F.R. § 42.12(a)(6).
`
`It is now 90 days from filing of Amended (from September 29 filing) Cross-Motion for Summary
`
`Judgment (Cross-Motion) filed on Monday October 3, 2022. The Notice of Intent to file Sanctions, filed
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`November 28 noted the basis of the sanctions motion to be submitted.
`
`While this document is being submitted to Jysk Counsel, on Decmebr 30, 2022, Fain for the 21 day notice
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`on Federal Rules of Civil Procedure (FRCivP) Rule 11 sanctions the issue of mentes reae (surely all
`
`four of purpose (same as intent), knowledge, recklessness and negligence applies here, of Jysk Counsel
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`Fain and absent counsel Joshi (and hidden counsels DZKL and Jan Meyer Law), must nullify that
`
`requirement, and also find the necessary bad-faith, if not fraud in Rule 9(b), - is posited from the caselaw
`
`and publications cited forthwith.
`
`Dutta-Roy is filing this Motion under health conditions in currently with Covid, high-BP and enduring
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`severe financial hardship in at least last seven years (this alone should show recklessness as counsels
`
`and Jysk nice and safe?).
`
`In having to make significant law, caselaw in seeking an interim judgment of $15M (stepped in
`
`mutually exclusive $5M calculations shown) in sanctions, Dutta-Roy requests Leave of Court in the total
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`page court of the Motion (26 pages) and Brief in Support of Motion (27 pages) to be a total of 53 pages.
`
`1|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`Inherent Authority to Sanction: ‘Taken Together’1 in Combined
`1.
`Nature of this Motion in Judicial Efficiency
`
`Indeed while this is a Rule 11 sanction, it is also a TBMP 527.01 Discovery sanction, combined into one
`
`for judicial efficiency (shown by the number of laws cited) into requesting sanctions by TBMP 527.03:
`
`Board’s Inherent Authority to Sanction.2
`
`To act under its inherent powers to sanction discovery abuse, the court must make a finding of bad faith.3
`
`While the basis of this Motion is Sanctions for improper certification Federal Rules of Civil Procedure
`
`(FRCivP) Rule 26(g)(3) which provides:
`
`(g)(3): Sanction for Improper Certification.
`If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose
`an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may
`include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
`
` … the real basis is intentional and malicious fraudulent misrepresentation,4 in 15 U.S.C. § 1927.
`
`Also, Jysk has not made necessary disclosures by Rule 26(a)(iv) in necessary insurance agreements
`
`between Jysk of US, Jysk of Denmark and lawyers involved in asset purchase agreement by Jysk in
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`purchase of Quick Ship assets.
`
`(a) Required Disclosures.
`(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may
`be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to
`satisfy the judgment.
`
`1 Director’s Letter: OpenSky-v-VLSI.IPR-2021.Paper-102: ‘Taken together, the behavior
`warrants sanctions to the fullest extent of my power.’ Discussed further.
`2 The sanctions sought are by a multitude of factors, including but not limited to: Advancing a
`misleading or frivolous argument or request for relief, Misrepresentation of slew of facts; Engaging
`in dilatory tactics; Abuse of discovery; Abuse of process; Improper use of the proceedings,
`including actions that harass or cause unnecessary delay or an unnecessary increase in the cost of
`the proceeding; in this matter: Multiplicity of proceedings;
`3 Bad faith requirement. See Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. —, 137 S. Ct.
`1178 197 L. Ed. 2d 585, 593 (2017) (court may instruct party that has acted in bad faith to
`reimburse legal fees and costs incurred by other side).
`4 Noted by already filed Notice of Reliance and En Banc Hearing to 11th Circuit.
`2|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`This three-part Sanctions Motion, governed by the essential tenet of 15 U.S. Code (USC) 1927,5 in Rule
`
`11 sanctions, but also by then by Rules 26 and 37 in Discovery sanctions), is structured as below:
`
`1) Discovery Sanctions, including Monetary Damages by:
`A) FRCivP Rule 26 :
`
`
`
`(a) Rule 26(a) : Required Disclosures;
`
`
`(b) Rule 26(g)(3) : Sanction for Improper Certification;
`
`B) FRCivP Rule 37 :
`
`
`
`(a) Rule 37(c) : Failure to Disclose, to Supplement an Earlier Response, or to Admit;
`
`
`(b) Rule 37(d) : Party's Failure to Attend Its Own Deposition, Serve Answers to
`
`Interrogatories, or Respond to a Request for Inspection;
`
`(c) Rule 37(e) : Failure to Preserve Electronically Stored Information;
`
`
`(d) Rule 37(a)(5) : Payment of Expenses; Protective Orders;
`
`
`C) TBMP 527 :
`
`
`(a) 527.01(b) : If Party Says It Will Not Respond to Discovery Request or Make
`
`Required Disclosures
`
`(b) 527.01(c) : Untimely Response to Discovery Requests
`
`
`(c) 527.01(d) : In the Case of Requests for Admission
`
`D) Notice of Reliance by 37 C.F.R. § 2.122(g)/ TMEP 704.02:
`(a) Citing Dutta-Roy’s Pretrial Disclosures, specifically:
`66-0.Dutta-Roy.SummaryJud.PretrialDisclosures.Index.Artifacts.Part-1+Part-2.pdf
`Curability: FUJIFILM SonoSite, Inc. v. Sonoscape Co., Ltd., 111 USPQ2d 1234, 1237
`2) FRCivP Rule 11
`
` Sanctions by:
`
`
`A) Rule 11(b)(3)/ Rule 11(b)(4) : Representations to the Court
`
`
`B) Leave (Rule 15(a)/ Rule 16(b)) to Add Real Parties of Interest by FRCivP Rule
`17(a), Rule 19 in adding:
`(a) Kjell Bratengen (Bratengen) former owner of Quick Ship Bed’N Linen.
`(b) Shashi Sonnad-Joshi (Sonnad or Sonnad-Joshi) formerly of Quick Ship Bed’N Linen.
`(c) Former Bed ‘N Linen General Counsel Barry Zipperman (GC Zipperman);
`(d) GC Zipperman’s Law firm Davis, Zipperman, Kirschenbaum, Lotito (DZKL);
`(e) Law Offices of Jan Meyer and Associates, P.C. (Jan Meyer Law)
`(f) Jysk Bed’N Linen of Denmark
`3) FRCivP Rule 11
`
` Sanctions, including Monetary Damages by:
`
`
`A) Rule 11(b)(1)/ Rule 11(b)(2) : Representations to the Court
`
`
`B) Rule 9(b)/ Rule 9(c) : Special Matters in Fraud on Court
`
`
`C) Rule 9(g) : Special Damages
`
`
`D) Rule 26(f) : Discovery on addition of parties notes in #2
`
`
`E) Rule 26(f) : Discovery on addition of parties notes in #2
`
`
`
`
`5 15 U.S.C. § 1927 : Any attorney or other person admitted to conduct cases in any court of the
`
`United States or any Territory thereof who so multiplies the proceedings in any case
`unreasonably and vexatiously may be required by the court to satisfy personally the excess
`costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
`3|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`F) Georgia Torts: Titles 9 and 51
`
`Dutta-Roy v. Jysk
`
`Intent to Deceive/ Fraudulent Concealment: Beyond Medinol
`2.
`standard and mens rea Thereof
`
`In its Medinol decision, the TTAB also extensively relied on the Federal Circuit's reasoning in Torres v. Cantine Torresella
`S.r.L.6 In that case, the court held that Torres knew or should have known that his statements of use were false in his request
`for trademark registration renewal of his mark on champagne, vermouth, and wine. 7 Torres' label had been altered over the
`years and was no longer the same design that was covered by its initial8 registration. The TTAB asserted that - even without
`specific intent to deceive - Torres' false statements amounted to fraud on the USPTO.9
`If a registrant files a verified renewal application stating that his registered mark is currently in use in interstate commerce
`and that the label attached to the application shows the mark as currently used when, in fact, he knows or should know that
`he is not using the mark as registered and that the label attached to the registration is not currently in use, he has knowingly
`attempted to mislead the PTO.10
`
`The ‘intent to deceive’ must not be question. The insurance agreements of Jysk, US, Jysk, DK, DZKL and
`
`Jan Meyer Law are necessary artifacts in this regard. Parties DZKL, Jan Meyer Law and Jysk of Denmark
`
`surely needs to be added to the litigation, in that it is clear that DZKL and Jan Meyer were directly or
`
`indirectly related to the tortious interference to contract and aiding/ abetting/ procuring breach of contract
`
`and fiduciary duty against Dutta-Roy. Further discovery is requested to understand essential factors:
`
`A) What is the relation between Jysk, US and Jysk, DK?
`
`B) Were Jysk (US or DK) members involved in procuring the breach of contract/ fiduciary duty
`
`against Dutta-Roy in 2004/ 05 or just Bratengen and GC Zipperman and DZKL?
`
`C) Was Jan Meyer Law involved in procuring the breach of contract/ fiduciary duty against Dutta-
`
`Roy in 2004/ 05 or just Bratengen and GC Zipperman and DZKL?
`
`The Notice of Reliance of Admissions (TTABVUE 69) confirms the case for GC Zipperman and DZKL
`
`being involved in the breach of contract and fiduciary duty in 2004/05 just by the nature of emails from
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`Bratengen and copies to GC Zipperman but also in GC Zipperman’s affidavit.
`
`6 See Medinol v. Neuro Vasx, Inc., 67 U.S.P.Q.2d 1205, 1208-10 (T.T.A.B. 2003).
`7 Torres v. Cantine Torresella S.r.L., I U.S.P.Q.2d 1483, 1484-85 (Fed. Cir. 1986).
`8 Id.
`9 Id. at 1485; see Severson, supra note 28
`10 Torres, 1 U.S.P.Q.2d at 1485 (emphasis added).
`4|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`In submitting this petition for sanctions, Dutta-Roy has more than, met the 21+ 3 days ‘safe harbor’
`
`provision (in reality by 10+ years), to allow for the correction of essential questions and violations11
`
`Dutta-Roy v. Jysk
`
`
`
`sought from Discovery A motion for sanctions under Rule 11 may not ‘be filed or be presented to the
`
`
`
`court if the challenged paper, claim. defense, contention, or denial is withdrawn or appropriately
`
`corrected within 21 day after service or within another time the Court sets.’12 Again, by mens rea,
`
`whether this is necessary is a arguable matter especially after Summary Jud.
`
`The arguments for this Motion and attached Brief are rely on the Pretrial Disclosures and Notice of
`
`Reliance for Admissions by the following attached documents:
`
`1) Brief in support of Motion.
`
`2) Citation Set Attached: PTAB/ TTAB Decisions requesting additional discovery, ‘reasonable
`
`expenses’ for Dutta-Roy
`
`A) File: OpenSky-v-VLSI.IPR-2021.Paper-102.Decision.pdf:Opensky Industries, Intel Corp.
`
`v. VLSI Technology, LLC (Opensky) – Paper No 102, by Director, Patent Trial and Appeal
`
`Board. File: OpenSky-v-VLSI.IPR-2021.Paper-102.Decision.pdf (Noting reasonable
`
`expenses).
`
`B) File: TTABVUE.91169175.OPP-23.pdf (Noting Additional Discovery by TTAB as
`
`necessary)
`
`C) File: Real-Party-In-Interest-Goes-Bankrupt.pdf (Noting issues surrounding bankruptcy of
`
`Real Party in Interest).
`
` advisory committee note or 1993 (reproduced verbatim at § 11 App.04(21):
`
`11 Fed. R. Civ. P. 11
`
`
`see Lawrence v, Richman Group or CT LLC, 620 F.3d 153. 158 (2d Cir. 20 I0) ("Rule 11
`
`
` (c)
`
`(2) conditions the filing of a sanctions motion on the offending party being given notice and a
`21·day opportunity to correct or withdraw the document. By thus encouraging correction or
`withdrawal of defective filings, Rule 11’s safe harbor provision seeks to reduce, if not eliminate
`the unnecessary expenditure of judicial time and adversary resources.").
`
`12 F ed. R. Civ. P. 11
`
` (c)(2) .
`
`
`5|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`D) Lucky-Capital-v.-Miller-Martin.11th-Cir.pdf: Citing civil conspiracy, fraudulent
`
`concealment, tort claims of procuring, aiding/ abetting fiduciary duty, legal malpractice;
`
`3) Publication Set Quoted:
`
`A) Bluebook 21st ed. Jerold S. Solovy , Norman M. Hirsch, Margaret J. Simpson & Christina T.
`
`Tomaras, Sanctions under Rule 11: A Cross-Circuit Comparison, 37 LOY. L. A. L. REV. 727
`
`(2004). (hence: Solovy.Sanctions-Rule-11).
`
`B) Bluebook 21st ed. Linda K. McLeod & Stephanie H. Bald, Navigating the TTAB's New
`
`Rules: A Survey of Cases under the New Rules and Their Impact on TTAB Practice and
`
`Procedure, 38 AIPLA Q. J. 23 (2010). (hence: McLeod.Survey-TTAB’s-New-Rules).
`
`C) Bluebook 21st ed. Nathan Isaacs, Traffic in Trade-Symbols , 44 HARV. L. REV. 1210 (1931).
`
`(hence: Isaacs.Traffic-Trade-Symbols).
`
`D) Bluebook 21st ed. Meryl Rothchild, Ruling with an Iron Fist: The TTAB's Strict Standard for
`
`Fraud for Trademark Registrants and Its Sanctions for Fraudulent Registrations, 26
`
`CARDOZO Arts & ENT. L.J. 845 (2009). (hence: Rothchild.TTAB-Srict-Standards).
`
`E) Bluebook 21st ed. Jonathan Hudis & Beth Chapman, TTAB Rules Aim to Promote Efficiency
`
`and Fairness, MANAGING INTELL. PROP. 44 (2007). (hence: Hudis.TTAB-Rules-
`
`Efficiency-Fairness).
`
`F) Hastings Law Journal Volume: 29 Issue: 5 Dated: (MAY 1978) Pages: 953-966,
`
`KNOWLEDGE AS A MENS REA REQUIREMENT. (hence: US-Dept-Justice.Knowledge-
`
`Mens-Rea).
`
`The Motion itself spells out the rules by which Dutta-Roy claims an interim relief in the range of $15 –
`
`$5M so that necessary parties noted can be joined and Dutta-Roy can pursue further Discovery in
`
`Determination of Real Parties in Interest, Coercion, and Secret Agreements, Trafficking between the
`
`real parties in interest noted – with the help of a law firm.
`
`6|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`
`The $15M – $5M in interim award to Dutta-Roy requested is so also he can not just survive – this
`
`essential onslaught by Jysk, then Quick Ship’s current and hidden counsels – but take the necessary
`
`steps to finalize and perfect claims against necessary parties – whether at the TTAB or back at the
`
`Northern District of Georgia.
`
`Surely Jysk counsel Fain or Joshi should not be permitted any more filings. These sanctions, including a
`
`monetary judgment to Dutta-Roy, are sought by the Trademark Trial and Appeal Board’s (TTAB or
`
`Board) inherent power to sanction provided by 37 CFR § 42.12 – Sanctions. Thus by TBMP 527.03:
`
`Board’s Inherent Authority to Sanction.
`
`Dutta-Roy duly notes that while 37 CFR 42.12 is perhaps not definitive enough in that it notes that the
`
`‘Board may impose a sanction’ that monetary sanctions are not generally imposed by the Board, noted by
`
`
`
`TBMP 527.02 – Motion for Fed. R. Civ. P. 11 Sanctions
`
`
`
` also notes ‘While Fed. R. Civ. P. 11 provides,
`
`
`
`inter alia, for the imposition of monetary sanctions, the Board will not impose monetary sanctions, or
`
`award attorneys’ fees or other expenses to any party.’
`
`37 CFR § 42.12 – Sanctions
`
`(a) The Board may impose a sanction against a party
`for misconduct, including:
`(1) Failure to comply with an applicable rule or order in
`the proceeding;
`(2) Advancing a misleading or frivolous argument or
`request for relief;
`(3) Misrepresentation of a fact;
`(4) Engaging in dilatory tactics;
`(5) Abuse of discovery;
`(6) Abuse of process; or
`(7) Any other improper use of the proceeding,
`including actions that harass or cause unnecessary
`delay or an unnecessary increase in the cost of the
`proceeding.
`VIOLATIONS BY JYSK IN BOLD
`
`(b) Sanctions include entry of one or more of the following:
`
`(1) An order holding facts to have been established in the
`proceeding;
`(2) An order expunging or precluding a party from filing a
`paper;
`(3) An order precluding a party from presenting or contesting a
`particular issue;
`(4) An order precluding a party from requesting, obtaining, or
`opposing discovery;
`(5) An order excluding evidence;
`(6) An order providing for compensatory expenses, including
`attorney fees;
`(7) An order requiring terminal disclaimer of patent term; or
`(8) Judgment in the trial or dismissal of the petition.
`SANCTIONS REQUESTED IN BOLD
`
`7|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`
`However, this is a motion for Discovery sanctions as well as Rule 11 sanctions discussed in Rule 60(b/ d)
`
`fraud and fraud on court noted specifically by that Jysk and counsels have not produced any evidence for
`
`their claims, made essential initial disclosures or even a case for their claims.
`
`Surely whether Jysk counsel Fain (and or Joshi) should be allowed to file any more documents must
`
`not be in doubt. But that the USPTO has allowed for monetary sanctions is shown by the Opensky
`
`documents, which surely is less grave than the 10+ (5+) years of fraudulent concealment and abusive
`
`litigation thereof by Jysk and current and hidden counsels in a 100B+/ year US furniture market.
`
`Here, whether a new standard, beyond Medinol has been set by Jysk is an essential question as
`
`whether it is not only Jysk counsel Fain’s, but absent counsel Joshi and hidden law firms’ DZKL
`
`and Jan Meyer’s ‘false statements’ in ‘specific intent to deceive,’ that must be considered.
`
`As evidenced in the Medinol decision, the TTAB cited many cases to substantiate its judgment of fraudulent behavior. In
`its1988 decision in First International Services. Corp. v. Chuckles, Inc., the TTAB first acknowledged that it is nearly
`impossible to demonstrate and confirm what a person's intent is at any given time.13
`
`Dutta-Roy believes that it should have been possible from Dutta-Roy’s opposition filed in 2013 with
`
`necessary artifacts to demonstrate what Jysk’s intention always has been all along.
`
`3. Rule 11: A Show Cause after 10+ (incl. 5+) years in Abuse of
`Process?
`
`Beyond mentes reae, Jysks actions in six courts has been a grand scheme in abuse of process of getting
`
`access to Dutta-Roy’s domain he spent 4000+ hours in developing. Thus whether Discovery sanctions by
`
`TBMP 527 in compensatory expenses are awarded or not, as TBMP 527 notes:
`
`13 First Int'l Serv. Corp. v. Chuckles, Inc., 5 U.S.P.Q.2d 1628, 1636 (T.T.A.B. 1988).
`8|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`‘The entry of sanctions for failure to respond, or respond properly, to requests for admission is governed by 37 C.F.R.
`§2.120(i) and Fed. R. Civ. P. 36, except that the Board will not award expenses to any party.’
`
`and that TBMP 527 notes by 37 C.F.R. § 2.120(h) - Sanctions:
`
`(1) If a party fails to participate in the required discovery conference, or if a party fails to comply with an order of the
`Trademark Trial and Appeal Board relating to disclosure or discovery, including a protective order, the Board may make any
`appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure, except that the Board
`will not hold any person in contempt or award expenses to any party. The Board may impose against a party any of the
`sanctions provided in Rule 37(b)(2) in the event that said party or any attorney, agent, or designated witness of that party
`fails to comply with a protective order made pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. A motion for
`sanctions against a party for its failure to participate in the required discovery conference must be filed prior to the deadline
`for any party to make initial disclosures.
`
`In being governed by Rule 37 (b)(2) the request for monetary judgment in $15M – $5M for Dutta-Roy is
`
`sought by the essential tenet of Rule 37(b)(2) in ‘Failure to Comply with a Court Order’ that the Board
`
`could issue a show cause to then sanction ‘Payment of Expenses’ to Dutta-Roy by Rule 37(b)(2)(C) –
`
`but as Dutta-Roy notes, after 10+ years in this litigation, and mens rea thereof, how will a ‘show cause’ in
`
`10+ years in this litigation in six different courts help in the time already lost for Dutta-Roy and in
`
`critical financial situation for Dutta-Roy currently?
`
`(b) Failure to Comply with a Court Order.
`(2) Sanctions Sought in the District Where the Action Is Pending.
`(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated
`under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f),
`35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
`(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of
`the action, as the prevailing party claims;
`(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from
`introducing designated matters in evidence;
`(iii) striking pleadings in whole or in part;
`(iv) staying further proceedings until the order is obeyed;
`(v) dismissing the action or proceeding in whole or in part;
`(vi) rendering a default judgment against the disobedient party; or
`(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental
`examination.
`(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to
`produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)—(vi), unless the
`disobedient party shows that it cannot produce the other person.
`(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the
`attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure,
`unless the failure was substantially justified or other circumstances make an award of expenses unjust.
`
`‘Taken Together’: Essence of ‘Abuse of Process’ Claims: Proportional to
`A.
`Conduct
`
`9|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`Dutta-Roy v. Jysk
`Here Dutta-Roy cites Paper No. 102, by the Director, Patent Trial and Appeal Board (PTAB) on October
`
`4, 2022 in Opensky, before Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property
`
`and Director of the United States Patent and Trademark Office, in DECISION Determining Abuse of
`
`Process, Issuing Sanctions, and Remanding to PTAB Panel for Further Proceedings:
`
`(“The essence of an abuse of process claim is that proceedings are used for a purpose not intended by the law.”). Each
`aspect of OpenSky’s conduct—discovery misconduct, violation of an express order, abuse of the IPR process, and unethical
`conduct—taken alone, constitutes sanctionable conduct. 37 C.F.R. § 42.12(a)(6). Taken together, the behavior
`warrants sanctions to the fullest extent of my power. Not only are such sanctions proportional to the conduct here, but
`they are necessary to deter such conduct by OpenSky or others in the future. See 37 C.F.R. § 42.11(d)(4).
`
`Given OpenSky’s conduct, from this day forward OpenSky and their counsel are precluded from actively participating in the
`underlying proceeding. The conduct of the individual attorneys in this case might also rise to the level of an ethical violation
`under the rules of their respective bars. OpenSky is precluded from filing further papers into the record or presenting further
`argument or evidence in the underlying proceeding or on Director review unless expressly instructed to do so by me or the
`Board. See 37 C.F.R. §§ 42.12(b)(2–4) (providing that sanctions include “[a]n order expunging or precluding a party from
`filing a paper”; “[a]n order precluding a party from presenting or contesting a particular issue”; and “[a]n order precluding a
`party from requesting, obtaining, or opposing discovery”).
`Indeed the SHOW CAUSE notes:
`
`VII. SHOW CAUSE
`Finally, for all the reasons discussed above, OpenSky also is ordered to show cause as to why it should not be ordered to pay
`compensatory expenses, including attorney fees, to VLSI as a further sanction for its abuse of process. 37 C.F.R. § 42.12(b)
`(6). Within two weeks of this Decision, OpenSky and VLSI shall each file a 10-page Paper addressing whether an award of
`attorney fees is appropriate, and if so, how such fees should be determined, e.g., the appropriate time frame for which fees
`should be assessed.
`
`Thus Dutta-Roy understands that perhaps a Show Cause must first be issued by the TTAB to then
`
`institute the compensatory expense of $5M sought by Dutta-Roy in these 10+ years in six courts. But
`
`surely, how can a ‘show cause’ after 10+ years in six different courts help, especially in that Jysk has now
`
`filed two Motions for Summary Judgment against Dutta-Roy?
`
`
`4. Rule 26 , Rule 37: Must & Will Clauses: Improper Certifications
`
`and ‘Failures’ by Jysk
`
`The ‘must’ and ‘will’ clauses in Rule 26 and Rule 37 are highlighted in seeking financial sanctions.
`
`
`
`FRCivP Rule 26 (a)/(g)(3): Duty to Disclose; General Provisions Governing Discovery
`
`
`
`
`
`
`
`(a) Required Disclosures.
`(1) Initial Disclosure.
`(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by
`the court, a party must, without awaiting a discovery request, provide to the other parties:
`
`(g)(3): Sanction for
`Improper Certification. If
`a certification violates
`this rule without
`
`10|Motion: Sanctions|US Application Serial No: 85684016|Opposition Number: 91215293
`
`

`

`(i) the name and, if known, the address and telephone number of each individual likely to have
`discoverable information—along with the subjects of that information—that the disclosing party
`may use to support its claims or defenses, unless the use would be solely for impeachment;
`(ii) a copy—or a description by category and location—of all documents, electronically stored
`information, and tangible things that the disclosing party has in its possession, custody, or control
`and may use to support its claims or defenses, unless the use would be solely for impeachment;
`(iii) a computation of each category of damages claimed by the disclosing party—who must also
`make available for inspection and copying as under Rule 34 the documents or other evidentiary
`material, unless privileged or protected from disclosure, on which each computation is based,
`including materials bearing on the nature and extent of injuries suffered; and
`(iv) for inspection and copying as under Rule 34, any insurance agreement under which an
`insurance business may be liable to satisfy all or part of a possible judgment in the action or
`to indemnify or reimburse for payments made to satisfy the judgment.
`
`Dutta-Roy v. Jysk
`
`substantial justification,
`the court, on motion or
`on its own, must impose
`an appropriate sanction
`on the signer, the party
`on whose behalf the
`signer was acting, or both.
`The sanction may include
`an order to pay the
`reasonable expenses,
`including attorney's fees,
`caused by the violation.
`
`It is not that Jysk has ‘improperly certified’ one set of things, such as its 1(a) application -- it has
`
`improperly certified and maliciously pursued six court actions against Dutta-Roy in trying to get
`
`ownership to bydesignfurniture.com.
`
`FRCivP Rule 37(c)/(d)/(e)/(a)(5)
`
`(c) Failure to Disclose, to
`Supplement an Earlier
`Response, or to Admit.
`
`(1) Failure to Disclose or
`Supplement. If a party fails to
`provide information or
`identify a witness as required
`by Rule 26(a) or (e), the
`party is not allowed to use
`that information or witness to
`supply evidence on a motion,
`at a hearing, or at a trial,
`unless the failure was
`substantially justified or is
`harmless. In addition to or
`instead of this sanction, the
`court, on motion and after
`giving an opportunity to be
`hea