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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA790090
`
`Filing date:
`
`12/19/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91227546
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`OMS Investments, Inc.
`
`CHRISTOPHER M DOLAN
`BARNES & THORNBURG LLP
`POST OFFICE BOX 2786
`CHICAGO, IL 60690-2786
`UNITED STATES
`trademarks-ch@btlaw.com, cdolan@btlaw.com, mmikol@btlaw.com, eno-
`lan@btlaw.com, mballesteros@btlaw.com, gcharlton@btlaw.com
`
`Motion for Discovery Sanctions
`
`Genevieve E Charlton
`
`trademarks-ch@btlaw.com, gcharlton@btlaw.com, cdolan@btlaw.com,
`mmikol@btlaw.com, mballesteros@btlaw.com
`
`/Genevieve E. Charlton/
`
`12/19/2016
`
`Motion for Sanctions GRO-GREEN 91227546 December 19 2016.pdf(141780
`bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Opposer,
`
`
`
`v.
`
`OMS INVESTMENTS, INC.,
`
`
`
`
`
`EVERGREEN MATERIALS DBA
`EVERGREEN SUPPLY,
`
`
`
`
`Applicant.
`
`
`
`MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 37
`AND TBMP § 527.01(a)
`
`Opposer, OMS Investments, Inc. (“OMS” or “Opposer”), hereby respectfully moves the
`
`Board, pursuant to Federal Rule of Civil Procedure 37 and TBMP § 527.01(a) to enter judgment
`
`in Opposer’s favor due to Applicant’s failure to comply with the Board’s Order mailed
`
`November 3, 2016, which granted OMS’s motion to compel discovery responses and production
`
`(the “November 3 Order”).
`
`Applicant has taken no action to comply with the November 3 Order. Specifically,
`
`Applicant failed to respond to the Requests for Production of Documents and Things, produce
`
`any responsive documents and has failed to serve responses to Opposer’s interrogatories.
`
`I.
`
`STATEMENT OF FACTS
`
`A.
`
`Background
`
`Opposer filed a Motion to Compel on October 4, 2016 due to Applicant’s failure to
`
`respond to discovery that Opposer propounded in this proceeding. (Dkt. 5) The Board issued
`
`an Order on October 11, 2016 suspending this proceeding for consideration of the Motion to
`
`Compel. (Dkt. 6) On November 3, 2016, the Board issued an Order granting Opposer’s Motion
`
`
`
`Opposition No.: 91227546
`
`Mark: GRO-GREEN
`
`U.S. Serial No.: 86/510,795
`
`
`
`

`

`to Compel as conceded pursuant to Trademark Rule 2.127(a) because Applicant failed to
`
`respond. (Dkt. 7)
`
`The November 3 Order permitted Applicant until December 3, 2016, to serve “its
`
`responses, without objection, to Opposer’s First Set of Interrogatories and First Request for
`
`Production of Documents and Things.” (Dkt. 7)
`
`The December 3, 2016 deadline established by the November 3 Order passed without any
`
`communication or responses from Applicant. (Ex. A, Decl. of C. Dolan at ¶ 2.) Opposer has not
`
`received any communications whatsoever from Applicant since October 5, 2016. (Ex. A, Decl.
`
`of C. Dolan at ¶ 3.)
`
`II.
`
`ARGUMENT
`
`Section 527.01 of the TBMP permits the Board to issue sanctions in situations, such as
`
`this situation, where a party fails to comply with a Board discovery Order. TBMP § 527.01(a).
`
`In the matter at hand, because Applicant failed to comply with the Board’s November 3 Order
`
`and appears to have lost interest in this Proceeding, Opposer respectfully submits that the Board
`
`should enter judgment for Opposer or, at a minimum, order Applicant to show cause why the
`
`Board should not enter judgment for Opposer.
`
`III. CONCLUSION
`
`For the foregoing reasons, Opposer respectfully requests that the Board, in its sound
`
`discretion, enter judgment granting the Opposition and denying Application Serial No.
`
`86/510,795 registration, or direct Applicant to show cause why judgment should not be entered.
`
`2
`
`
`
`
`
`
`
`

`

`
`Dated: December 19, 2016
`
`
`
`By:
`
`Respectfully submitted,
`
`OMS Investments, Inc.
`
`
`
`
`/Christopher M. Dolan/
`Christopher M. Dolan
`Michelle M. Mikol
`BARNES & THORNBURG, LLP
`Post Office Box 2786
`Chicago, Illinois 60690-2786
`Phone: (312) 338-5911
`Fax:
`(312) 759-5646
`E-Mail: trademarks-ch@btlaw.com
`
`Attorneys for Opposer
`
`
`
`3
`
`

`

`Exhibit A
`Exhibit A
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Opposer,
`
`
`
`v.
`
`OMS INVESTMENTS, INC.,
`
`
`
`
`
`EVERGREEN MATERIALS DBA
`EVERGREEN SUPPLY,
`
`
`
`
`Applicant.
`
`
`
`DECLARATION OF CHRISTOPHER M. DOLAN
`
`I, Christopher M. Dolan of Lake Forest, Illinois, USA, hereby declare as follows:
`
`1.
`
`I am an attorney at Barnes & Thornburg in Chicago, Illinois, counsel for Opposer
`
`OMS Investments, Inc. (“OMS” or “Opposer”), in the above-captioned proceeding. This
`
`Declaration is being submitted in support of the Opposer’s Motion Pursuant to Federal Rule Of
`
`Civil Procedure 37 and TBMP § 527.01(a).
`
`2.
`
`The December 3, 2016 deadline established by the November 3 Order passed
`
`without any communication or responses from Applicant.
`
`3.
`
`Opposer has not received any communications whatsoever from Applicant since
`
`5
`
`October 5, 2016.
`
`
`
`
`
`
`
`
`
`Opposition No.: 91227546
`
`Mark: GRO-GREEN
`
`U.S. Serial No.: 86/510,795
`
`
`
`

`

`The undersigned being warned that willful false statements and the like are punishable by fine or
`imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the
`like may jeopardize the validity of the application or document or any registration resulting
`therefrom, declares that all statements made of her own true knowledge are true; and all
`statements made on information and belief are believed to be true.
`
`
`
`By: /Christopher M. Dolan/
`Christopher M. Dolan
`BARNES & THORNBURG, LLP
`Post Office Box 2786
`Chicago, Illinois 60690-2786
`Phone: (312) 338-5911
`Fax:
`(312) 759-5646
`E-Mail: trademarks-ch@btlaw.com
`
`Attorney for Opposer
`
`
`
`Executed on: December 19, 2016
`
`
`
`
`
`6
`
`
`
`
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the MOTION
`
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 37 AND TBMP § 527.01(a)
`
`was served on December 19, 2016 by first class mail, postage prepaid, addressed as follows:
`
`Angela Lipanovich
`Estriatus Law PC
`2222 E Cliff Dr Ste 220
`Santa Cruz, CA 95062-4739
`
`/Christopher M. Dolan/
`
`
`
`
`
`
`
`
`
`
`
`
`
`DMS 4542612v2
`
`
`
`7
`
`

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