Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1273176
`03/20/2023
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`ESTTA Tracking number:
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`Filing date:
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`91282580
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Plaintiff
`Breeze Smoke LLC
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`RACHEL M HOFSTATTER
`HONIGMAN LLP
`1440 NEW YORK AVENUE NW, SUITE 200
`WASHINGTON, DC 20005
`UNITED STATES
`Primary email: rhofstatter@honigman.com
`Secondary email(s): mhyde@honigman.com, ablackburn@honigman.com,
`trademark@honigman.com, litdocket@honigman.com, swaide-
`lich@honigman.com
`202-844-3371
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`Opposition/Response to Motion
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`Amanda M Blackburn
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`ablackburn@honigman.com, rhofstatter@honigman.com,
`mhyde@honigman.com, swaidelich@honigman.com, droulo@honigman.com,
`litdocket@honigman.com, trademark@honigman.com
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`Signature
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`Date
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`/Amanda M Blackburn/
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`03/20/2023
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`Attachments
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`Opposition to Motion to Suspend - Opp No. 91282580.pdf(293584 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Opposer,
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`BREEZE SMOKE LLC,
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`v.
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`PROMONTORY HOLDINGS, LLC,
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`Applicant.
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`_____________________________________/
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`Opposition No.: 91282580
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`Mark: THE BREEZ FUND
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`Serial No. 90/848,498
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`OPPOSER BREEZE SMOKE LLC’S OPPOSITION TO APPLICANT’S MOTION TO
`SUSPEND PENDING DISPOSITION OF A RELATED PROCEEDING
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`I.
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`INTRODUCTION
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`The only justification Promontory Holdings, LLC (“Applicant”) offers in support of its
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`motion to suspend this proceeding is that two earlier proceedings involve the same pleaded
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`registrations and applications. But the similarities between this proceeding and the earlier
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`proceedings are more than outweighed by the differences—namely, that this case involves two
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`additional, unique claims not currently at issue in the earlier proceedings. Adjudicating these
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`claims in serial fashion would waste both Board and party resources. Good cause to suspend is
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`lacking, and the motion should be denied.
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`Applicant’s real intent in suspending this proceeding is to further delay the proceedings,
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`which Applicant has repeatedly done. Applicant has requested several deadline extensions,
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`including for its deadline to respond to the Notice of Opposition in this proceeding. See 6
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`TTABVUE. In the earlier-filed Oppositions Nos. 91276304 and 91276316 (the “Related
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`Proceedings”) involving these parties, Applicant has likewise requested, and received, extensions
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`to its deadline to respond to the Notices of Opposition and Opposer’s Motions for Leave to Amend
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`the Notices of Opposition. See Opp. No. 91276316, 4, 5, 14, 15 TTABVUE; Opp. No. 91276304,
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`1
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`4, 5 TTABVUE. In addition, despite discovery opening in October 2022, Applicant has delayed
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`Opposer’s ability to discover relevant facts by not producing a single document or providing a
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`single substantive written discovery response in the Related Proceedings and by not reasonably
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`cooperating during the meet and confer process. Applicant’s motion to suspend is just the latest
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`attempt to draw out these proceedings to avoid a resolution of Opposer’s claims on the merits.
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`Applicant expects the Board to grants its motion to suspend as a matter of course merely
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`because of the existence of the Related Proceedings. But there are significant differences between
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`this proceeding and the Related Proceedings. Claims II and III in this case (for Applicant’s lack
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`of bona fide intent to use the subject marks and fraud on the USPTO) are not currently at issue in
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`the Related Proceedings.1 Though involving the same registrations, because of Claims II and III,
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`the Related Proceedings have little to no bearing on this proceeding.
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`Most importantly, the justification for the normally routine suspension of later proceedings
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`is to conserve party and Board resources. See Edge Games, Inc. v. Future Pub. Ltd., 2019 WL
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`2711208, at *3 (TTAB 2019) (denying a motion to suspend where suspension would “waste[]
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`litigants’ resources and adjudicators’ time”). To that end, Opposer offered to stipulate to the
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`present suspension if Applicant would withdraw its opposition to Opposer’s motion to amend the
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`Notice of Opposition in the Related Proceedings. The claims Applicant is resisting in the motion
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`to amend are indisputably at issue in the current proceeding, so it makes sense to adjudicate them
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`all together. Under Applicant’s preferred course of action, the parties and the Board will fully
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`adjudicate only some of the claims in dispute between the parties, and will then be forced to redo
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`discovery and trial on Claims II and II in this proceeding. Opposer maintains that this is an
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`1 Motions for Leave to Amend to add those two claims are pending in Oppositions Nos. 91276304 and 91276316.
`Applicant opposes those motions. If the Board grants those motions, Opposer will agree to withdraw its opposition
`to the pending motions to suspend.
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`2
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`ineffective use of party and Board resources. For these reasons, Opposer respectfully requests that
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`the Board deny the present motion to suspend, or, in the alternative, if the Board grants Opposer’s
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`motion to amend in the Related Proceedings, Opposer will stipulate to the present suspension.
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`II. BACKGROUND
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`Opposer filed its Notice of Opposition in this proceeding on December 28, 2022. See 1
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`TTABVUE. Seven months earlier, on May 18, 2022, Opposer filed Notices of Opposition against
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`other of Applicant’s Marks in the Related Proceedings. Opp. No. 91276316, 1 TTABVUE; Opp.
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`No. 91276304, 1 TTABVUE. At the time of the original Notices of Opposition, the Related
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`Proceedings only opposed Applicant’s Mark on likelihood of confusion grounds. Opp. No.
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`91276316, 1 TTABVUE; Opp. No. 91276304, 1 TTABVUE.
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`Here, Opposer opposes Applicant’s THE BREEZ FUND mark on three grounds: (1)
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`Likelihood of Confusion, (2) Lack of Bona Fide Intent of Lawful Use/Void Ab Initio, and (3)
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`Fraud on the USPTO. 1 TTABVUE. The marks at issue in the likelihood of confusion claim
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`(Claim I) largely mirror the likelihood of confusion claim in the Related Proceedings. Compare 1
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`TTABVUE, with Opp. No. 91276316, 1 TTABVUE; Opp. No. 91276304, 1 TTABVUE.
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`Likewise, there are pending Motions for Leave to Amend to add the second and third counts to the
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`Notices of Opposition in the Related Proceedings, but Applicant opposes such amendments. Opp.
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`No. 91276316, 12, 17 TTABVUE; Opp. No. 91276304, 13, 14 TTABVUE.
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`In this proceeding, Applicant, as it has done in the other proceedings with Opposer,
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`requested and received an extension to respond to the Notice of Opposition. 6, 7 TTABVUE.
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`Applicant then moved to suspend this proceeding. 10 TTABVUE. This response follows.
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`3
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`III.
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` LEGAL STANDARD
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`“[T]he Board may, in its discretion, suspend a proceeding pending the final determination
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`of another Board proceeding in which the parties are involved.” 37 C.F.R. § 2.117(a)-(b); TMBP
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`§ 510.02(a). “[B]oth the permissive language of Trademark Rule 2.117(a) . . . and the explicit
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`provisions of Trademark Rule 2117(b) make clear that suspension is not the necessary result in all
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`cases.” Boyds Collection Ltd. v. Herrington & Co., 65 U.S.P.Q.2d 2017, 2018 (TTAB 2003).
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`Additionally, “[a]ll motions to suspend, regardless of circumstances and even with the adverse
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`party’s consent, are subject to the ‘good cause’ standard.” National Football League v. DNH
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`Management LLC, 85 U.S.P.Q.2d 1852, 1855, n.8 (TTAB 2008) (citing Trademark Rule 2.117(c)).
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`Filing a motion to suspend “for purposes of delay and not for advancing resolution” does not
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`support a finding of good cause. Jodi Kristopher Inc. v. Int’l Seaway Trading Corp., 91
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`U.S.P.Q.2d 1957, 1959 (TTAB 2009). Finally, “the party seeking suspension is also expected to
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`comply with its responsibilities.” National Football League, 85 U.S.P.Q.2d at 1855, n.8.
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`IV. ARGUMENT
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`A.
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`Suspension in the Current Procedural Posture Would Not Conserve Party or
`Board Resources
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`Applicant argues that because the Related Proceedings involve the same marks they “are
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`likely to have a bearing on the present proceedings,” warranting a suspension here. 10 TTABVUE
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`at 1. But as things currently stand, there are significant differences between this proceeding and
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`the Related Proceedings. Opposer raises three claims in this proceeding: (1) Likelihood of
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`Confusion, (2) Lack of Bona Fide Intent of Lawful Use/Void Ab Initio, and (3) Fraud on the
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`USPTO. 1 TTABVUE. By contrast, because Applicant is resisting Opposer’s motions to amend2
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`2 Due to Applicant’s failure to produce documents in the earlier-filed oppositions, Opposer only discovered the
`evidence to support Claims II and III through its own diligent investigation in December 2022. Therefore, Opposer
`could include those claims in its original Notice of Opposition here, but discovered the relevant evidence too late to
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`4
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`in the Related Proceedings, the Related Proceedings currently only include Claim I. Opp. No.
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`91276316, 1 TTABVUE; Opp. No. 91276304, 1 TTABVUE. As such, because Claims II and III
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`are not currently at issue in the Related Proceedings, there are significant and unique issues here
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`for which the Related Proceedings will have little impact.
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`The Board has previously denied motions to suspend where the seemingly related
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`proceedings have significant differences, and it should do so here as well. For example, in New
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`Orleans Louisiana Saints LLC & NFL Properties v. Who Dat? Inc., the Board denied a motion to
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`suspend where, like here, the oppositions involved the same marks, but different claims. 99
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`U.S.P.Q.2d 1550, 1552 (TTAB 2011). The Board held “if applicant successfully defends against
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`the instant opposers’ claims likelihood of confusion, deceptiveness, and false association this will
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`have no bearing on” the claims in the other oppositions. Id. Likewise, here, if Applicant
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`successfully defended against the likelihood of confusion claim in the Related Proceedings, it “will
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`have no bearing” on Claims II or III in this proceeding: whether Applicant lacked a bona fide intent
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`to use or committed fraud on the PTO. See id. Therefore, it would unnecessarily burden and delay
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`the parties and the Board to have to wait until the Related Proceedings conclude when that result
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`would only have a bearing on a single count (out of three) in this proceeding.
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`Opposer maintains that the most efficient course of action for the parties and the Board is
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`for Claims I, II, and III to be adjudicated together, in a single proceeding, rather than serially, as
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`Applicant proposes. To that end, Opposer offered to consent to this suspension if Applicant
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`withdrew its opposition to Opposer’s amendment. See Exhibit A, Email Exchange between Mary
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`Hyde and Kevin Goldman. Applicant refused Opposer’s proposal. See id. Therefore, because the
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`initially plead them in the Related Proceedings. See Opp. No. 91276316, 20 TTABVUE 6; Opp. No. 91276304, 17
`TTABVUE 5.
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`5
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`Board may deny Opposer’s motions for leave to amend, it is more efficient to continue this
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`proceeding.
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`B.
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`Applicant Has Not Shown Good Cause For the Requested Suspension
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`Applicant argues the Board should suspend as a matter of course since the Related
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`Proceedings involve the same parties and many of the same marks. See 10 TTABVUE 3. This
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`ignores the Board’s discretionary power to grant suspensions. See Boyds Collection Ltd., 65
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`U.S.P.Q.2d at 2018. Further, Applicant makes no argument for why good cause exists to suspend
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`this proceeding, particularly in light of the inefficiencies that would result. Instead, Applicant’s
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`motion to suspend aligns with Applicant’s overall strategy of delay: Applicant has repeatedly
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`asked for and received extensions in this proceeding, and the others involving Opposer. See 6, 7
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`TTABVUE; see also Opp. No. 91282581, 6, 7 TTABVUE; Opp. No. 91276316, 4, 5, 14, 15
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`TTABVUE; Opp. No. 91276304, 4, 5 TTABVUE. Additionally, in the Related Proceedings,
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`Applicant has not produced any documents or substantively responded to written discovery,
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`forcing Opposer to file a motion to extend discovery. See Opp. No. 91276316, 21 TTABVUE;
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`Opp No. 91276304, 18 TTABVUE. Applicant’s history of delaying proceedings against Opposer
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`does not support a finding of good cause. See Jodi Kristopher Inc., 91 U.S.P.Q.2d at 1958 (denying
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`a motion to suspend because of petitioner’s “pattern of inaction and delay”).
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`C. Applicant’s Counterclaims and Affirmative Defenses in the Related Proceedings Are
`Not Good Cause to Suspend This Proceeding
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`Applicant’s argument that the Related Proceedings have a bearing on this proceeding
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`because it filed counterclaims and affirmative defenses challenging the validity of Opposer’s
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`marks misunderstands trademark law and the Board’s role in trademark enforcement. First, use,
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`not registration, determines a party’s right to use a mark. See, e.g., Matal v. Tam, 122 U.S.P.Q.2d
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`1757, 1762 (S. Ct. 2017) (“Without federal registration a valid trademark may still be used in
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`6
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`commerce . . . . [and] can be enforced against would-be infringers in several ways”). The Board
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`decides matters relating to registration of trademarks, not use, so it cannot “address the validity
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`and enforceability of” Opposer’s marks, as Applicant suggests. See TBMP § 102.01 (“The Board
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`is empowered to determine only the right to register” not “the right to use”); 10 TTABVUE at 4.
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`In other words, even if Applicant succeeds in achieving cancellation of Opposer’s
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`registrations in the Related Proceedings (which Opposer believes is extremely unlikely), that will
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`have no bearing on Opposer’s ability to continue using its marks. And because “[a]ny person who
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`believes that he or she would be damaged by the registration of a mark may file an opposition
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`thereto,” TBMP § 102.02 (internal quotations omitted), Opposer will still have a claim that its use
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`of its marks will be damaged if Applicant’s marks are registered. Still, in the unlikely event of
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`cancellation, Opposer has pled, and can prove, distinctiveness in its marks and priority of use. See
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`1 TTABVUE ¶¶ 7-14; see also Treadwell Original Drifters, LLC v. Original Drifters, Inc., 2015
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`WL 1276593, at *3 (TTAB 2015) (basing a Board proceeding on an unregistered mark requires
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`distinctiveness and priority of use). Therefore, regardless of Applicant’s counterclaims and
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`defenses, Opposer would still have grounds to challenge Applicant’s marks in all proceedings as
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`it has common law rights dating back to 2014. 1 TTABVUE at ¶ 9. And because Opposer’s
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`Claims II and III are not presently in the Related Proceedings, the Related Proceedings will have
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`little bearing on this proceeding, and it would be inefficient to proceed with these oppositions in a
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`serial manner.
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`Claims II and III, however, could each be entirely dispositive in this proceeding. See
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`generally Nationstar Mortgage LLC v. Mujahid Ahmand, 112 U.S.P.Q.2d 1361 (TTAB 2014)
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`(sustaining opposition on the grounds of fraud); Honda Motor Co., Ltd. v. Friedrich Winkelmann,
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`90 U.S.P.Q.2d 1660 (TTAB 2009) (sustaining opposition due to a lack of a bona fide intent to
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`use).
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` As such, even
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`if Applicant succeeds
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`in canceling Opposer’s registrations,
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`Applicant’s marks still will not register if Opposer prevails on either Count II or Count III.
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`Therefore, there is no reason to delay the resolution of Counts II or III.
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`Applicant cites Sturgis Motorcycle Rally, Inc. v. Faraz Farrokhi, arguing that the Board
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`should suspend this proceeding because the Related Proceedings involve the same marks,
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`registrations, and applications. See 10 TTABVUE at 4 (citing Opp. No. 912022020, 2013 WL
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`11247190, at *6). But Sturgis stands only for the unremarkable fact that suspension often makes
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`sense as a way to conserve party and Board resources. See Sturgis Motorcycle Rally, 2013 WL
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`11247190, at *6. Here, by contrast, a suspension would not conserve party and Board resources.
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`The Board has correctly recognized that suspension should not always be granted, even when there
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`is some overlap, and has denied motions to suspend in such cases. See supra, New Orleans
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`Louisiana Saints LLC, 99 U.S.P.Q.2d at 1551 (denying a motion to suspend even though there
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`were three oppositions against the same registration because each opposition concerned different
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`claims) (emphasis added); see also Jodi Kristopher Inc., 91 U.S.P.Q.2d at 1958-59 (denying a
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`motion to suspend despite the existence of a pending civil case involving the same marks and same
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`claims).
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`This proceeding and the Related Proceedings involve different claims and it would not
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`conserve Board or party resources to proceed serially. The motion to suspend should be denied.
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`V. CONCLUSION
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`For the foregoing reasons, Opposer respectfully requests that the Board deny Applicant’s
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`motion to suspend. In the alternative, if the Board grants Opposer’s motions to amend in the
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`Related Proceedings, Opposer will stipulate to the requested suspension here.
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`Dated: March 20, 2023
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`HONIGMAN LLP
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`/s/ Sarah E. Waidelich
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`By:
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`Sarah E. Waidelich
`Honigman LLP
`315 E. Eisenhower Pkwy
`Ann Arbor, MI 48108
`(734) 418-4242
`swaidelich@honigman.com
`trademark@honigman.com
`litdocket@honigman.com
`
`Mary A. Hyde
`Honigman LLP
`155 N. Wacker Drive, Suite 3100
`Chicago, IL 60606-1734
`(312) 701-9300
`mhyde@honigman.com
`
`Rachel M. Hofstatter
`Honigman LLP
`1440 New York Avenue, NW, Suite 200
`Washington, DC 20005-2111
`(202) 844-3390
`rhofstatter@honigman.com
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing OPPOSER BREEZE SMOKE LLC’S
`RESPONSE IN OPPOSITION TO APPLICANT’S MOTION TO SUSPEND PENDING
`DISPOSITION OF A RELATED PROCEEDING was served on March 20, 2023, by electronic
`mail to the Applicant as follows:
`
`David Yang
`HAWKINSON YANG
`1801 Century Park East
`Suite 2400
`Los Angeles, CA 90067
`dyang@hycounsel.com
`mhawkinson@hycounsel.com
`kgoldman@hycounsel.com
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`Attorneys for Applicant
`Promontory Holdings, LLC
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`/s/ Sarah E. Waidelich
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`Sarah E. Waidelich
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`EXHIBIT A
`EXHIBIT A
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`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Kevin Goldman <kgoldman@hycounsel.com>
`Thursday, February 16, 2023 10:36 AM
`Hyde, Mary A.; Hofstatter, Rachel M.; Blackburn, Amanda M.; Honigman Trademark;
`Honigman Litigation Docket
`David Yang; Matthew Hawkinson; Waidelich, Sarah E.; Lamb, Jeffrey K.
`Re: Breeze Smoke v. Promontory - Opp. Nos. 91282580 and 91282581
`
`[EXTERNAL EMAIL]
`
`Mary,
`
`Thank you for your e-mail.
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`First, with respect to BS's discovery requests, Promontory does not agree to your proposal. As an initial
`matter, under your proposal below, BS's Requests for Production still exceed the 75-request limit set by the
`Board. See December 30, 2022 Letter from Goldman to Hyde, at 5; January 20, 2023 Letter from Goldman to
`Hyde, at 1-2, 6-8. Further, your demand that Promontory respond in two weeks is improper. The proper
`procedure is for BS to serve new sets of requests that comply with the Board's limits, and Promontory would
`then have the prescribed amount of time to respond to the newly-served requests. See, e.g.,
`TBMP § 405.03(e) ("[I]t is strongly recommended that the parties voluntarily agree to the service of a revised
`set of interrogatories, in the manner normally allowed by the Board, instead of bringing their dispute to the
`Board by motion to compel."). As we have explained repeatedly, Promontory remains willing to accept service
`of revised requests that comply with the Board's rules.
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`Second, with respect to BS's proposed extension of all deadlines, Promontory does not agree. The state of
`discovery in Opposition Nos. 91276304 and 91276316 is due to BS's failure to serve discovery requests that
`comply with the Board's rules, BS's failure to remedy those errors after Promontory identified them, BS's
`failure to produce documents and provide complete responses to Promontory's interrogatories, and BS's
`failure to remedy those deficiencies after Promontory identified them. Promontory reserves its right to seek
`all appropriate relief from the Board.
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`Finally, Promontory does not agree to BS's proposal that Promontory withdraw its opposition to BS's motion
`to amend in Opposition Nos. 91276304 and 91276316 in exchange for BS consenting to suspend Opposition
`Nos. 91282580 and 91282581. Promontory's positions in both cases are supported by good
`cause. Promontory will inform the Board in its motion to suspend that BS opposes Promontory's motion.
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`We have sent a dial-in for today's meet-and-confer. We look forward to speaking with you then.
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`Best,
`
`Kevin
`
`From: Hyde, Mary A. <MHyde@honigman.com>
`Sent: Tuesday, February 14, 2023 10:40 PM
`To: Kevin Goldman <kgoldman@hycounsel.com>; Hofstatter, Rachel M. <RHofstatter@honigman.com>; Blackburn,
`
`1
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`

`

`Amanda M. <ABlackburn@honigman.com>; Honigman Trademark <Trademark@honigman.com>; Honigman Litigation
`Docket <LitDocket@honigman.com>
`Cc: David Yang <dyang@hycounsel.com>; Matthew Hawkinson <mhawkinson@hycounsel.com>; Waidelich, Sarah E.
`<SWaidelich@honigman.com>; Lamb, Jeffrey K. <JLamb@honigman.com>
`Subject: RE: Breeze Smoke v. Promontory - Opp. Nos. 91282580 and 91282581
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`Kevin,
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`We write in anticipation of the parties’ upcoming meet and confer and your below request.
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`While Breeze Smoke still strongly disagrees with Promontory’s position that the number of Breeze Smoke’s Requests for
`Production and Interrogatories allegedly exceeds the maximum allotted under the Board rules, in the interest of working
`in good faith toward resolving this dispute without having to involve the Board, Breeze Smoke is willing to withdraw the
`following requests:
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`
`
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`Request for Production Nos. 1, 4, 22, and 45
`Interrogatory Nos. 2, 7, 29, and 32
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`Breeze Smoke maintains that the remainder of its outstanding Requests for Production and Interrogatories were
`properly served on October 28, 2022 and that Promontory is obligated to serve complete responses to these
`outstanding requests and produce responsive documents. We will allow Promontory 14 days from this Thursday, until
`March 2, 2023, to do so. We also propose a 60 day extension of all deadlines so that the parties can complete
`discovery. Please let us know by no later than this Thursday’s meet and confer whether you agree to this proposal and
`consent to a 60-day extension.
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`As to your below request, we will consent to Promontory’s proposed motions to suspend Opp. Nos. 91282580 and
`91282581 pending the outcome of Opp. Nos. 91276304 and 91276316, provided that Promontory withdraws its
`oppositions to amend the notices of opposition in Opp. Nos. 91276304 and 91276316. If you do not agree, we will
`oppose your motions to suspend.
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`Finally, we have not received a dial-in for Thursday’s meet and confer – please circulate one at your earliest
`convenience.
`
`Regards,
`Mary
`
`Mary A. Hyde
`___________________________________
`
`HONIGMAN LLP
`O 312.701.9360
`M 216.212.4179
`mhyde@honigman.com
`
`Honigman celebrates 75 years of service
`1948 - 2023
`
`From: Kevin Goldman <kgoldman@hycounsel.com>
`Sent: Monday, February 13, 2023 9:47 AM
`To: Hofstatter, Rachel M. <RHofstatter@honigman.com>; Hyde, Mary A. <MHyde@honigman.com>; Blackburn, Amanda
`M. <ABlackburn@honigman.com>; Honigman Trademark <Trademark@honigman.com>; Honigman Litigation Docket
`<LitDocket@honigman.com>
`
`2
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`Cc: David Yang <dyang@hycounsel.com>; Matthew Hawkinson <mhawkinson@hycounsel.com>
`Subject: Re: Breeze Smoke v. Promontory - Opp. Nos. 91282580 and 91282581
`
`[EXTERNAL EMAIL]
`
`Counsel,
`
`Promontory will be moving to suspend the above-captioned proceedings pending the outcome of Opposition
`Nos. 91276304 and 91276316, pursuant to 37 C.F.R. § 2.117 and TBMP § 510.02(a). Please let us know if
`Breeze Smoke consents to the motion.
`
`Best,
`
`Kevin
`
`This e-mail may contain confidential or privileged information. If you are not the intended recipient, please
`delete it and notify the sender of the error.
`
`3
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