Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA666972
`ESTTA Tracking number:
`04/16/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91221048
`Defendant
`Robert J. Reisz
`CHRISTINE LEBRON-DYKEMAN
`MCKEE, VOORHEES & SEASE, PLC
`801 GRAND AVE STE 3200
`DES MOINES, IA 50309-2721
`
`patatty@ipmvs.com
`Answer
`Christine Lebron-Dykeman
`christine.lebron-dykeman@ipmvs.com, mvslit@ipmvs.com
`/s/ Christine Lebron-Dykeman
`04/16/2015
`Opposition Answer_4-16-15.pdf(17366 bytes )
`Ex A_Opposition Answer.pdf(68328 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`
`ESTTA666972
`ESTTA Tracking number:
`04/16/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91221048
`Defendant
`Robert J. Reisz
`CHRISTINE LEBRON-DYKEMAN
`MCKEE, VOORHEES & SEASE, PLC
`801 GRAND AVE STE 3200
`DES MOINES, IA 50309-2721
`
`patatty@ipmvs.com
`Answer
`Christine Lebron-Dykeman
`christine.lebron-dykeman@ipmvs.com, mvslit@ipmvs.com
`/s/ Christine Lebron-Dykeman
`04/16/2015
`Opposition Answer_4-16-15.pdf(17366 bytes )
`Ex A_Opposition Answer.pdf(68328 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
`
`
`
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`
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` Opposition No: 91221048
`
`In the matter of:
` Application No: 86303627
` Mark: PEAK PERFORMANCE
` Published in Official Gazette on:
`
`January 13, 2015
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`PEAK PERFORMANCE HOLDINGS, LLC,
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`
`
` Opposer,
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`
`v.
`
`ROBERT J. REISZ,
`
`
`
`
`
` Applicant.
`
`
`ANSWER TO NOTICE OF OPPOSITION
`
`
`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
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`COMES NOW, the Applicant, Robert J. Reisz, an individual residing at 4137 120th
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`Street, Urbandale, Iowa 50323, and responds to the Notice of Opposition as follows, and in
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`doing so denies all allegations and legal arguments except as specifically stated herein:
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`1.
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`Applicant denies the allegations contained in paragraph 1 of the Notice of
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`Opposition.
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`2.
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`Applicant is without knowledge or information sufficient to enable it to admit or
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`deny Opposer's alleged dates of first use alleged in paragraph 2 of the Notice of Opposition and
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`therefore denies same. Applicant further denies the remaining allegations contained in paragraph
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`2 of the Notice of Opposition.
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`
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`3.
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`Applicant admits that Exhibit A purports to be a copy of a December 1997
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`Cosmopolitan magazine, but is without knowledge or information sufficient to enable it to admit
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`or deny whether the magazine was published, and therefore denies the same.
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`4.
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`Applicant is without knowledge or information sufficient to enable it to admit or
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`deny the allegations contained in paragraph 4 of the Notice of Opposition and therefore denies
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`same.
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`5.
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`Applicant is without knowledge or information sufficient to enable it to admit or
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`deny the allegations contained in paragraph 5 of the Notice of Opposition and therefore denies
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`same.
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`6.
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`Applicant denies the allegations contained in paragraph 6 of the Notice of
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`Opposition.
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`7.
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`Applicant denies the allegations contained in paragraph 7 of the Notice of
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`Opposition.
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`8.
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`9.
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`Applicant admits the allegations in paragraph 8.
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`Applicant is without knowledge or information sufficient to enable it to admit or
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`deny the allegations contained in paragraph 9 of the Notice of Opposition and therefore denies
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`same.
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`10.
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`Applicant denies the allegations contained in paragraph 10 of the Notice of
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`Opposition.
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`11.
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`Applicant admits that the first use date set forth in Registration No. 4,443,546 is
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`January 2006, and that the first use date set forth in Application Serial No. 86/303,627 is
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`identified as being "at least as early as August 1998," but denies the remaining allegations
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`contained in paragraph 11 of the Notice of Opposition. Applicant further affirmatively states
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`2
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`
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`that he was providing training, strength and conditioning, injury prevention and repair services
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`under his PEAK PERFORMANCE mark as of late spring 1996. (See e.g., Exhibit A attached
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`hereto).
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`12.
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`13.
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`necessary.
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`Applicant denies the allegations in paragraph 12 of the Opposition.
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`The allegations in paragraph 13 set forth legal conclusion, to which no response is
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`14.
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`The allegations in paragraph 14 set forth legal conclusion, to which no response is
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`necessary.
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`15.
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`Applicant denies the allegations contained in paragraph 15 of the Notice of
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`Opposition.
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`16.
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`Applicant denies the allegations contained in paragraph 16 of the Notice of
`
`Opposition.
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`17.
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`Applicant denies the allegations contained in paragraph 17 of the Notice of
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`Opposition.
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`18.
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`Applicant denies the allegations contained in paragraph 18 of the Notice of
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`Opposition.
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`WHEREFORE, having responded, Applicant prays that Opposer take nothing by way of
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`its Notice of Opposition and that the Board dismiss the same.
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`
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`3
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`Respectfully submitted,
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`
`
`
`
` /s/ Christine Lebrón-Dykeman
`Christine Lebrón-Dykeman
`McKEE, VOORHEES & SEASE, P.L.C.
`801 Grand Avenue, Suite 3200
`Des Moines, IA 50309-2721
`Phone: 515-288-3667
`Fax: 515-288-1338
`Email: christine.lebron-dykeman@ipmvs.com
`Email: mvslit@ipmvs.com
`
`ATTORNEYS FOR APPLICANT
`ROBERT J. REISZ
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`
`
`CERTIFICATE OF FILING
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`I hereby declare that the foregoing document has been filed via the Electronic System for
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`Trademark Trials and Appeals (ESTTA) this 16th day of April, 2015.
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` /s/ Christine Lebrón-Dykeman
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`4
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`CERTIFICATE OF SERVICE
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`I hereby declare that the foregoing document was served upon the following this 16th day
`of April, 2015, via:
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`1st Class U.S. Mail
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`
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`Facsimile
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`Other ________________________
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`Federal Express
`Hand Delivery
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`
`Anthony F. Lo Cicero
`Holly Pekowsky
`AMSTER, ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue
`New York, NY 10016
`Ph: (212) 336-8000
`Email: ptodocket@arelaw.com
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`ATTORNEYS FOR APPLICANT,
`PEAK PERFORMANCE HOLDINGS, LLC
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` /s/ Christine Lebrón-Dykeman
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`5
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`_
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`From: 5152257030
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`Page: 2/2
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`Date: 12/15/201 4 235811 0 PM
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`_-_
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`..--_,--._
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`
`
`DECLARATION OF JAY FLAWS
`
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`1, Jay Flaws, hereby affirm that I am over 21 years of age, that I am competent to make
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`this declaration, and that I have personal knowledge of the facts stated herein. I hereby declare
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`under penalty of perjury that the following is true and correct:
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`1.
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`In 1996, I was the Head Softball Coach for Carlisle Junior High School, and an
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`assistant to the Varsity Softball Coach for Carlisle High School in Carlisle Iowa.
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`2.
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`In late spring 1996, the Carlisle Athletic Director hired Peak Performance to Work
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`with the Varsity Softball team on agility training, strength and conditioning, injury prevention,
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`and injury repair.
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`3.
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`Peak Performance worked for the Carlisle School in this same capacity from 1996
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`to 1999.". i'_._'''
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`Dated this 15 day of December, 2014.
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`
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`Jay Flaws
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`Exhibit A
`Exhibit A
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`1
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`This fax was received by GFI FaxMaker fax server. For more information, visit: http://www.gfi.com
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