Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA645728
`ESTTA Tracking number:
`12/18/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91218577
`Defendant
`TollPlus Inc.
`
`TOLLPLUS INC
`6240 E YUCCA ST
`SCOTTSDALE, AZ 85254-5448
`UNITED STATES
`rdurow@tollplus.com
`Other Motions/Papers
`D. Joshua Staub, attorney at law
`djstaub@hotmail.com,josh@djoshuastaub.com
`//DJS//
`12/18/2014
`2014-12-18 Motion Under FRCP 55.pdf(1508920 bytes )
`2014-12-18 Answer.pdf(954255 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA645728
`ESTTA Tracking number:
`12/18/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91218577
`Defendant
`TollPlus Inc.
`
`TOLLPLUS INC
`6240 E YUCCA ST
`SCOTTSDALE, AZ 85254-5448
`UNITED STATES
`rdurow@tollplus.com
`Other Motions/Papers
`D. Joshua Staub, attorney at law
`djstaub@hotmail.com,josh@djoshuastaub.com
`//DJS//
`12/18/2014
`2014-12-18 Motion Under FRCP 55.pdf(1508920 bytes )
`2014-12-18 Answer.pdf(954255 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:
`
`Serial No. 86/110,030
`
`Filed:
`For the mark:
`
`November 4, 2013
`T-BOS
`
`Published in the Official Gazette: April 1, 2014
`
`DEUTSCHE TELEKOM AG,
`
`v.
`
`TOLLPLUS, INC.
`
`%%%%%J%/%%\/A
`
`Opposer
`
`Applicant.
`
`é
`Opposition No. 91218577
`
`Motion for Relief Under Fed. R. Civ. Pro. 55 subd. gc)
`
`Applicant Tollplus, Inc. (“Tollplus”) hereby moves pursuant to Federal Rules of
`
`Civil Procedure, rule 55 subd. (c) for relief from default on the grounds that good cause
`
`warrants the setting aside of the November 28, 2014 default because Tollplus has not
`
`acted willfully, the Opposer has not suffered any prejudice, and Tollplus has a
`
`meritorious defense to the September 29, 2014 opposition (“Opposition”).
`
`The determination of ‘good cause’ rests with the discretion of the Court (Keegel v.
`
`Key West & Caribbean Trading Co. (D.C. Cir. 1980) 627 F.2d 372, 373-374.).
`
`For this purpose, ‘good cause’ is liberally construed in favor of setting aside the
`
`default. (Venegas-Hernandez v. Sonolux Records (2nd Cir. 2004) 370 F.3d 183, 187.).
`
`
`
`“[T]here is a strong policy in favor of resolving cases on the merits and that
`
`defaults are viewed with disfavor... For that reason, any doubts regarding whether to set
`
`aside an entry of default should be resolved in favor of the party seeking relief.”
`
`(lnsingform Techs., Inc. v. AMerik Supplies, Inc. (ND Ga 2008) 588 F.Supp.2d 1349,
`
`1352.).
`
`Here, Tollplus was not willful but its response was delayed while it located, and
`
`retained legal counsel to represent it in the proceeding (Decl. of Kakarla). It did not act in
`
`bad faith. (United States V. Signed Personal Check No. 730 (9th Cir. 2010) 615 F.3d
`
`1085, 1092-1093.).
`
`Tollplus has used the trademark at issue - - “T-BOS” - - since February 3, 2011
`
`as stated in the application assigned serial number 86110030. Given that Tollplus has
`
`used its trademark for over 3 years without any legal action being taken except for this
`
`Opposition, a few weeks of delay in Tollplus’ response to this proceeding does not )
`
`prejudice the opposer.
`
`Finally, Tollplus files concurrently with this motion, and attaches to this motion
`
`as Exhibit “A” its proposed answer to the petition which discloses that Tollplus has a
`
`meritorious defense to the Opposition.
`
`Dated: December 18, 2014
`
`LAW OFFIC ‘OF D. JOSHUA STAUB
`
`
`D. Joshua tau , member of the California bar
`Attorney for Tollplus, Inc., the applicant
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91218577
`
`In the matter of Serial No. 86/110,030
`Filed: November 4, 2013
`For the mark: T-BOS
`
`Published in the Official Gazette: April 1, 2014
`
`) ) )
`
`) )
`
`) )
`
`) )
`
`)
`
`Answer
`
`DEUTSCHE TELEKOM AG,
`
`v.
`
`TOLLPLUS, INC.
`
`Opposer
`
`Applicant.
`
`Applicant Tollplus, Inc. (“Tollplus”), the responding party hereby responds to the
`
`opposition as follows:
`
`Notice of Opposition
`
`Tollplus lacks sufiicient knowledge or infonnation to admit or deny this
`
`avennent.
`
`1. Admit.
`
`2. Tollplus lacks sufficient knowledge or information to admit or deny these
`
`averments.
`
`3. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`Page 1 of 5
`
`EXHIBIT A
`
`
`
`4. Admit.
`
`5. Admit.
`
`6. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`avennent with the exception that the T-Bos was filed on November 4,
`
`2013.
`
`7. Tollplus admits that each trademark contains a capital “T” but denies the
`
`balance of the averments.
`
`8. Admit.
`
`9. Tollplus incorporates its responses to paragraphs 1-7 as though set forth in
`
`full.
`
`10. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`11. Deny.
`
`12. Deny.
`
`13. Deny.
`
`14. Tollplus lacks sufiicient knowledge or information to admit or deny this
`
`averment except that it filed its application for T-BOS on November 4,
`
`2013.
`
`15. Deny.
`
`16. Deny.
`
`17. Deny.
`
`18. Tollplus repeats, and realleges its responses to paragraphs 1-16 as though
`
`set forth in full.
`
`Page 2 of5
`
`
`
`19. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`20. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment except that Tollplus filed its application on November 4, 2013.
`
`21. Tollplus denies this averment except with respect to the cited marks each
`
`containing a capital “T”.
`
`22. Deny.
`
`23. Deny.
`
`24. Deny.
`
`25. Deny.
`
`26. Deny.
`
`27. Tollplus repeats, and realleges its responses to paragraphs 1-25 as though
`
`set forth in full.
`
`28. Tollplus lacks sufficient knowledge or infonnation to admit or deny this
`
`averment.
`
`29. Tollplus lacks sufiicient knowledge or information to admit or deny this
`
`avennent.
`
`30. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment except as to the dates contained in Tollplus’ application.
`
`31. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`avennent.
`
`32. Deny.
`
`33. Deny.
`
`Page 3 of 5
`
`
`
`34. Deny.
`
`Affirmative Defenses
`
`Tollplus does not sell to consumers.
`
`Tollplus markets directly to governments, or enterprises.
`
`Tollplus markets itself at trade shows.
`
`Tollplus sells by responding to requests for proposals where it specifically
`
`identifies itself.
`
`Tollplus has never had anyone contact it looking for the goods or services of the
`
`Opposer.
`
`1.
`
`There is no likelihood of confusion between the opposer’s trademarks, and
`
`T-BOS, the applicant’s trademark.
`
`2.
`
`There has been no actual confusion between the opposer’s trademarks, and
`
`T-BOS, the applicant’s trademark.
`
`3.
`
`The opposer waited too long to challenge the Applicant's trademark.
`
`Dated: December 18, 2014
`
`LA OFFICE OF .JOSHUA STAUB
`
`S./.
`
`D. Joshua Staub, member of the California bar
`Attorney for Tollplus, Inc., the applicant
`
`Page 4 of 5
`
`
`
`Certificate of Service
`
`I hereby certify that a true and complete copy of the foregoing Answer has been
`
`served on Michael D. Adams, Esq. the attorney for Deutsche Telekom AG by mailing
`
`said copy on December 18, 2014, via First Class Mail, postage prepaid to: Michael D.
`
`Adams, Esq. MAYER BROWN LLP P.O. Box 2828 Chicago, IL 60690-2828.
`
`I have executed this declaration in the State of California, and declare under
`
`penalty of perjury, that the foregoing is true and correct this day of December 18, 2014.
`
`
`
`, member of the California bar
`D. oshua Sta
`Attorney for Tollplus, Inc., the applicant
`
`Page 5 of 5
`
`
`
`Certificate of Service
`
`I hereby certify that a true and complete copy of the foregoing Motion for Relief
`
`Under Fed. R. Civ. Pro. 55 subd. (c) has been served on Michael D. Adams, Esq. the
`
`attorney for Deutsche Telekom AG by mailing said copy on December 18, 2014, via First
`
`Class Mail, postage prepaid to: Michael D. Adams, Esq. MAYER BROWN LLP P.O.
`
`Box 2828 Chicago, IL 60690-2828.
`
`1 have executed this declaration in the State of California, and declare under
`
`penalty of perjury, that the foregoing is true and correct this day of December 18, 2014.
`
`<;fJ¥h memberofthe Californiabar
`
`Attorney for Tollplus, Inc., the applicant
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91218577
`
`In the matter of Serial No. 86/110,030
`
`Filed: November 4, 2013
`For the mark: T-BOS
`
`Published in the Official Gazette: April 1, 2014
`
`) ) )
`
`) )
`
`) )
`
`) )
`
`)
`
`Answer
`
`DEUTSCHE TELEKOM AG,
`
`v.
`
`TOLLPLUS, INC.
`
`Opposer
`
`Applicant.
`
`Applicant Tollplus, Inc. (“Tollplus”), the responding party hereby responds to the
`
`opposition as follows:
`
`Notice of Opposition
`
`Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averrnent.
`
`1. Admit.
`
`2. Tollplus lacks sufficient knowledge or information to admit or deny these
`
`averments.
`
`3. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`Page 1 of 5
`
`
`
`4. Admit.
`
`5. Admit.
`
`6. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment with the exception that the T-Bos was filed on November 4,
`
`201 3.
`
`7. Tollplus admits that each trademark contains a capital “T” but denies the
`
`balance of the averments.
`
`8. Admit.
`
`9. Tollplus incorporates its responses to paragraphs 1-7 as though set forth in
`
`fiill.
`
`10. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`1 1. Deny.
`
`12. Deny.
`
`1 3. Deny.
`
`14. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment except that it filed its application for T-BOS on November 4,
`
`2013.
`
`15. Deny.
`
`1 6. Deny.
`
`17. Deny.
`
`18. Tollplus repeats, and realleges its responses to paragraphs 1-16 as though
`
`set forth in full.
`
`Page 2 of 5
`
`
`
`19. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`avennent.
`
`20. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment except that Tollplus filed its application on November 4, 2013.
`
`21. Tollplus denies this averment except with respect to the cited marks each
`
`containing a capital “T”.
`
`22. Deny.
`
`23. Deny.
`
`24. Deny.
`
`25. Deny.
`
`26. Deny.
`
`27. Tollplus repeats, and realleges its responses to paragraphs 1-25 as though
`
`set forth in full.
`
`28. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`29. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment.
`
`30. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`averment except as to the dates contained in Tollplus’ application.
`
`31. Tollplus lacks sufficient knowledge or information to admit or deny this
`
`avennent.
`
`32. Deny.
`
`33. Deny.
`
`Page 3 of 5
`
`
`
`34. Deny.
`
`Affirmative Defenses
`
`Tollplus does not sell to consumers.
`
`Tollplus markets directly to governments, or enterprises.
`
`Tollplus markets itself at trade shows.
`
`Tollplus sells by responding to requests for proposals where it specifically
`
`identifies itself.
`
`Tollplus has never had anyone contact it looking for the goods or services of the
`
`Opposer.
`
`1.
`
`There is no likelihood of confusion between the opposer’s trademarks, and
`
`T-BOS, the applicant’s trademark.
`
`2.
`
`There has been no actual confusion between the opposer’s trademarks, and
`
`T-BOS, the applicant’s trademark.
`
`3.
`
`The opposer waited too long to challenge the Applicant's trademark.
`
`Dated: December 18, 2014
`
`LA OFFICE OSHUA STAUB
`Q 343
`
`D. Joshua Staub, member of the California bar
`
`Attorney for Tollplus, Inc., the applicant
`
`Page 4 of 5
`
`
`
`Certificate of Service
`
`I hereby certify that a true and complete copy of the foregoing Answer has been
`
`served on Michael D. Adams, Esq. the attorney for Deutsche Telekom AG by mailing
`
`said copy on December 18, 2014, Via First Class Mail, postage prepaid to: Michael D.
`
`Adams, Esq. MAYER BROWN LLP P.O. Box 2828 Chicago, IL 60690-2828.
`
`I have executed this declaration in the State of California, and declare under
`
`penalty of perjury, that the foregoing is true and correct this day of December 18, 2014.
`
`
`
`
`
`D. oshua Sta
`
`, member of the California bar
`
`
`
`Attorney for Tollplus, Inc., the applicant
`
`Page 5 of 5
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
