Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA255547
`ESTTA Tracking number:
`12/17/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92048839
`Plaintiff
`Joseph Melluso
`Keith E. Rounder
`Terrell, Baugh, Salmon & Born, LLP
`700 South Green River Road, Suite 2000
`Evansville, IN 47715
`UNITED STATES
`krounder@tbsblaw.com, gprice@tbsblaw.com, pperry@tbsblaw.com
`Opposition/Response to Motion
`Keith E. Rounder
`krounder@tbsblaw.com, gprice@tbsblaw.com, pperry@tbsblaw.com
`/Keith E. Rounder/
`12/17/2008
`Response to Motion for Summary Judgment.pdf ( 22 pages )(585134 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`) )
`
`Cancellation No. 92048839
`) Reg. No. 2673458
`
`g/\/\/\/\/;
`
`JOSEPH MELLUSO,
`
`vs.
`
`SEA DINING, LLC,
`
`Petitioner,
`
`Registrant.
`
`RESPONSE TO MOTION FOR SUMMARY JUDGMENT
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`Comes now the Petitioner, Joseph Melluso (“Mel|uso”), and files his
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`Response to the Motion for Summary Judgment filed by the Registrant, Sea
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`Dining, LLC (“Sea Dining’s Motion” and “Sea Dining” respectively). Sea Dining’s
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`Motion is based on its affirmative defense of |aches.I However, this defense
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`must fail for the reason that there is inevitability of confusion between Sea
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`Dining’s trademark and Melluso’s trademark. Sea Dining’s Motion should
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`therefore be denied as laches is inapplicable to the facts of this case.
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`Melluso’s Brief on the issues presented is incorporated in this Response
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`as set forth below.
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`Facts
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`Melluso does not dispute the facts set forth in Sea Dining’s Motion.
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`However, Melluso submits that the most critical facts for purposes of Sea
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`Dining’s Motion Response are that Melluso used the “The Tin Fish” mark in
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`commerce prior to Sea Dining’s application, that the respective marks of the
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`parties are identical, and that both parties are engaged in the operation of
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`1
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`.
`,
`.
`.
`.
`In its Answer, Sea Dining also asserted the affirmative defense of acquiescence. However, Sea Dining 5 Motion appears to be solely
`based on laches, with only a passing reference to acquiescence in a footnote on page 6 of that Motion.
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`-1-
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`

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`restaurants serving seafood. As set forth in the Affidavits of Joseph Melluso,
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`Roberta Hepburn and Barry J. Williams which are attached to this Response,
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`there have been numerous instances of confusion between Melluso’s
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`servicemark and Sea Dining’s servicemark.
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`Legal Standard
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`Summary Judgment is an appropriate method of disposing of cases in
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`which there are no genuine issues of material fact in dispute and the moving
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`party is entitled to judgment as a matter of law. FRCP 56(c). The party moving
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`for summary judgment has the burden of demonstrating that there is an absence
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`of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317
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`(1986). The evidence must be viewed in a light favorable to the non—moving
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`party, and all reasonable inferences are to be drawn in the non—movant’s favor.
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`In considering the propriety of summary judgment, the Trademark Trial and
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`Appeal Board may not resolve issues of material fact against the non—moving
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`party; it may only ascertain whether such issues are present. L/oyd’s Food
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` Products Inc. v. E/i’s /nc., 1987 F.2d 766 (Fed. Cir. 1993); O93;/and USA, Inc. v.
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`GreatAmerican Music Show Inc., 970 F.2d 847 (Fed. Cir. 1992) 23 USPQ2d
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`1471.
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`To successfully assert a defense of laches, the party asserting the
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`defense must make a showing of (1) unreasonable delay in asserting one’s rights
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`against another and (2) material prejudice to the movant as a result of the delay.
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`Lincoln Logs, Ltd. v. Lincoln Pre-cut Log Homes, Inc., 971 F.2d 732, 23 USPQ2d
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`1701, 1703 (Fed. Cir. 1992). The burden of proof is on the party that raises the
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`affirmative defense of laches. Josegh E. Turner v. Hogs Grill & Bar, lnc., and
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`Aggie South, /nc., 52 USPQ2d 1310 (TTAB 1999). The mere passage of time
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`does not constitute laches. Advanced Cardiovascular Systems v. SciMed Life
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`Systems, 988 F.2d 1157, 26 USPQ2d 1038, 1041 (Fed. Cir. 1993). The defense
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`of laches requires factual development beyond the content of the pleadings and
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`the facts evidencing unreasonableness of delay and material prejudice to the
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`movant cannot be decided against the non—movant based solely on
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`presumptions. Aguion Partners Limited Partnershig v. Envirogard Products
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`Limited, 1997 WL 288964 (TTAB 1997).
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`Even if a movant asserting a defense of laches can establish
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`unreasonable delay and material prejudice, laches will not apply if the marks and
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`goods or services of the parties are substantially similar and it is determined that
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`confusion is inevitable. Coach House Restaurant Inc. v. Coach and Six
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`Restaurants /nc., 934 F.2d 1551, 1564, 19 USPQ2d 1041, 1409 (11th Cir. 1991);
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`Hogs Grill and Bar, 52 USPQ2d 1310, 1312 (TTAB 1999).
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`1.
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`The Law concerning lnevitability of Confusion.
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`Argument
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`Even if Sea Dining could show both that Melluso unreasonably delayed
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`asserting his rights to the Tin Fish trademark and that Sea Dining suffered
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`material prejudice as a result, Sea Dining’s Motion must still fail for the reason
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`that there is inevitability of confusion between the Melluso trademark and the Sea
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`Dining trademark.
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`It is well-settled law that laches is not available as a defense
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`to a cancellation petition when the similarity between trademarks is such that the
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`

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`public will inevitably be confused between the goods and services of the parties.
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`Hogs at USPQ2d 1312. The reason for this is that the interest in protecting the
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`public from confusion in the marketplace outweighs any injury to a party caused
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`by another party’s delay in asserting rights to a trademark. Hogs at USPQ2d
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`1312-3. The interest in protecting the public from confusion between trademarks
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`has consistently been held to be of paramount concern.
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`However, even though proven, laches will not prevent
`cancellation where the marks and goods or services of the
`parties are substantially similar and it is determined that the
`confusion is inevitable. This is so because any injury to
`respondent caused by petitioner’s delay is outweighed by
`the public’s interest in preventing confusion in the
`marketplace. Consequently, if there is an inevitability of
`confusion, laches is not applicable and thus does not bar the
`claim.
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`Hogs at USPQ2d 1312-3 (citing Coach House).
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`The question then becomes, What constitutes inevitability of confusion?
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`The recent history of the TTAB in this regard is to make reference to the factors
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`governing likelihood of confusion set forth in the case of In re E. I. du Pont de
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`Nemours & Co., 476 F.2d 1357, 177 USPQ2d 563 (CCPA 1973). An example is
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`the case of Teledyne Technologies, Inc. v. Western Skyways, Inc., 78 USPQ2d
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`1203 (TTAB 2006).
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`In Teledyne the petitioner sought to cancel a registration of
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`the mark GOLD SEAL for “aircraft engines.” The petitioner's mark GOLD SEAL
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`was for ignition harnesses for aircraft engines. The respondent’s GOLD SEAL
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`mark was for entire aircraft engines. The respondent raised the issue of laches
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`based on the fact that the petitioner had not asserted its rights until 2002 even
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`though the evidence showed it was aware of the respondent’s mark as early as
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`

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`December 1998. After concluding that there had been unreasonable delay
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`coupled with material prejudice suffered by the respondent, the TTAB went on to
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`consider whether the laches defense was rendered inapplicable due to
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`inevitability of confusion.
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`In deciding whether confusion was inevitable, it
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`reviewed the pertinent facts in light of the factors set out in du Pont.
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`In doing so,
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`the TTAB found that while the marks themselves were identical, consideration of
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`the other du Pont factors indicated that there was not an inevitability of confusion.
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`Among these factors were the facts that the goods were not the same or
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`substantially the same, that there was no evidence of instances of actual
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`confusion and that the goods of each party were marketed to sophisticated
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`purchasers.
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`It was the sophistication of the target market of each of the parties’
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`respective goods which the TTAB surmised was the reason for no instances of
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`actual confusion being offered by the petitioner. The TTAB thus concluded that
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`confusion was not inevitable and the laches defense applied.‘
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`Coach House is a case in which inevitability of confusion was found to
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`exist and its facts are closely aligned with those of the present case. Coach
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`L-I_o_u_s_e involved alleged acquiescence‘ to the use of a mark. The petitioner,
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`Coach House Restaurant, Inc. (“Coach House”) had begun using the mark
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`“Coach and Six Horses” for its restaurant in New York City known as TV Coach
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`House Restaurant, Nine years later, the registrant, The Coach and Six
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`Restaurants, Inc. (“Coach and Six”) opened a restaurant in Atlanta, Georgia
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`known as “The Coach and Six Restaurant.” The registrant continued to use the
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`“Coach and Six Horses” logo as the mark for its Atlanta restaurant for years
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`

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`thereafter. The petitioner was at all times aware of the registrant’s use of the
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`mark in the Atlanta area.
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`In 1981, without the knowledge of the petitioner, the registrant applied for
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`and received a federal registration for the mark “Coach and Six Horses." The
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`petitioner discovered the registration less than two years later and filed a
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`proceeding with the TTAB to cancel the registration of the mark based on its prior
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`identity rights in the mark.
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`The TTAB determined that the petitioner had acquiesced in the
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`registrant’s use of the mark and refused to find that confusion was inevitable,
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`thereby concluding that the petitioners action was estopped by its acquiescence
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`in the registrant’s use.
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`The district court which reviewed the matter affirmed the decision of the
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`TTAB and the case was appealed to the 11”‘ Circuit Court of Appeals. The 11”‘
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`Circuit noted that the TTAB had found no inevitability of confusion because
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`actual confusion had not been sufficiently proven and the marks of the petitioner
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`and the registrant were supposedly not sufficiently similar. The 11"‘ Circuit
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`engaged in a more detailed analysis, citing eight factors similar to the du Pont
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`factors. Those were (1) the distinctiveness of the mark, (2) the similarity of the
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`design, (3) the similarity of the service, (4) the similarity of service outlets, (5') the
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`similarity of customers, (6) the similarity of advertising media utilized, (7) the
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`defendant’s intent, and (8) actual confusion. Coach House at F.3d 1561.
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`In
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`analyzing the facts of the case using the above—referenced factors, the 11"‘
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`Circuit found, among other things, that the marks were in fact closely similar and
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`

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`that the ambiance, selection and management operations of the respective
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`restaurants were also quite similar. Furthermore, the appellate court found that
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`there was similarity in the types of advertising used by the parties as well as the
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`venues in which the restaurants were discussed, mainly articles not advertising in
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`newspapers. The court did not find that there was an intent to cause confusion.
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`Finally, the appellate court noted that there were inquiries from the public
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`as to an affiliation between the two restaurants. While the TTAB found that the
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`evidence failed to show that the inquiries were related to the use of the “Coach
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`and Six Horses” logo, the appellate court disagreed.
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`It seems obvious that customers that have dined at both
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`restaurants have seen the “coach and six horses” logo on
`the entrance and pervading the inside of both restaurants.
`Any question arising in a patrons’ mind as to the affiliation
`between the two restaurants must have been influenced, at
`least in part, by the extreme similarity between the logos at
`both restaurants.
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`Coach House at F.2d 1563.
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`The appellate court determined that there was an inevitability of confusion
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`and reversed the district court on the issue of estoppel due to acquiescence.
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`Another example of inevitable confusion is the case of Angel Flight of
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`Georgia, Inc. v. Angel Flight America, /nc., 522 F.3d 1200, 86 USPQ2d 1422
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`(2000). Angel Flight involved a dispute between parties who each provided
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`medical flight transportation services. Angel Flight of Georgia, Inc. (AFGA) was
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`formed under that name in 1983.
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`It served a geographic area consisting of
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`Georgia, Alabama, South Carolina, Mississippi, North Carolina and Tennessee.
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`Angel Flight America, Inc. (AFA) was formed in 2000 and then joined by Angel
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`-7-
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`

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`Flight Southeast, lnc. (AFSE), after which AFSE commenced operations in
`Florida, Georgia, Mississippi, Alabama and South Carolina. Each party
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`promoted their services using the term “Angel Flight” in their respective marks.
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`The evidence showed that in 1988 a mark containing the term “Angel
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`Flight” was issued to Angel Flight West. That trademark was assigned in May
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`2001 to AFA, which in turn licensed the mark to its affiliated member
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`organizations, including AFSE. AFGA brought suit when AFSE refused its
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`request to cease doing business under the Angel Flight mark in certain states.
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`AFA intervened and was a joint defendant with AFSE.
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`AFA and AFSE contended that AFGE’s claim was barred by laches. The
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`district court held that there was inevitability of confusion and denied the laches
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`defense. The appellate court affirmed.
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`ln reaching its decision on the laches component of the case, the
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`appellate court noted that the district court had found that confusion was
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`inevitable because the Angel Flight mark used by the parties was identical, that it
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`was used to promote identical services and that the parties used the same
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`advertising methods and venues to promote the mark. Angel Flight at F.3d 1206.
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`This led the appellate court to conclude that confusion over the Angel Flight mark
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`was inevitable and that it served the public interest of preventing confusion to
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`deny the laches defense. The appellate court reached this decision based on the
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`testimony of AFGA employees as to conversations they had with third parties
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`who had allegedly confused AFGA with AFSE. There was no testimony from any
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`such third party concerning actual confusion.
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`

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`2.
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`inevitability of Confusion bars Sea Dining’s Laches Defense.
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`There is inevitability of confusion in this case for the following reasons:
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`a.
`
`b.
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`The marks are identical;
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`P The Petitioner and Registrant both operate restaurants serving
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`seafood with similar ambiance;
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`c.
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`The target market for the Petitioner and the Registrant is not a
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`sophisticated customer market; and
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`d.
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`The Petitioner has experienced instances of actual confusion.
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`There is no question as to the similarity of the marks. The Petitioner’s use
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`of the servicemark “The Tin Fish” and the Registrant's use of the servicemark
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`“Tin Fish” create at the very least the certainty of initial confusion given that the
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`marks are basically identical.
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`If the parties operated entirely different kinds of
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`businesses offering entirely different kinds of services to the public, the identical
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`nature of the servicemarks might create confusion which would be
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`inconsequential. However, the parties operate businesses which are quite
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`similar to each other. Each of the servicemarks is used in conjunction with the
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`operation of one or more restaurants serving seafood to the general public. As
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`such, they respectively provide the similar or same services while using identical
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`servicemarks to do so. This necessarily creates confusion in the public as to the
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`association or lack thereof between the restaurants using the servicemark
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`licensed to them by the Petitioner and the Chicago Tin Fish operated by the
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`Registrant. Furthermore, as borne out by the affidavits of Joseph Melluso,
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`Roberto Hepburn and Barry J. Williams which are attached to this Response,
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`

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`there are numerous instances of actual confusion. The Petitioner, Joseph
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`Melluso, has received complaints about the Registrant’s Chicago Tin Fish by
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`patrons of the Chicago Tin Fish who contacted Mr. Melluso thinking they were
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`contacting Tin Fish corporate offices.
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`(Melluso Aff. 11115 and 6) Roberto Hepburn,
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`an owner of a Tin Fish restaurant in San Diego, California, has been approached
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`by customers at her restaurant who had also eaten at the Chicago Tin Fish and
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`assumed that they were one and the same operation, and, in some cases, that
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`Ms. Hepburn owned the Chicago Tin Fish. (Hepburn Aff. 1111 5 and 6)
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`As to the similarity of the operations, there is clear evidence of this in the
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`Affidavit of Barry J. Williams. Mr. Williams, who has ownership interest in a Tin
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`Fish restaurant in the Evansville, Indiana area, visited the Tin Fish restaurant in
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`Chicago and was himself under the impression that the Chicago Tin Fish was
`
`afimmedwmwmhmweaawamsofMemwou§ngflm1W1Fmhsewmemam.
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`(Williams Aff. 1111 4-6)
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`As indicated above, the facts of the present case are remarkably similar to
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`those of the Coach House case. Each case involves the use of virtually identical
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`servicemarks in the operation of restaurants which were similar to each other.
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`In
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`each case, the restaurants "operated by the restaurantsnusing the respective
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`servicemarks were geographically remote from each other, a fact that was found
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`to be irrelevant. Coach House at F.2d 1562. The common thread running
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`through both the Coach House and Angel Flight cases is that in some instances
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`the similarity of servicemarks and services is so great that confusion will
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`inevitability result.
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`-10-
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`

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`Conclusion
`
`Laches is not available as a defense in a cancellation action when there is
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`an inevitability of confusion between the marks at issue. The reason for this is
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`that the paramount concern is the public interest in preventing confusion in the
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`marketplace.
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`In the present case the public will inevitably be confused between the
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`Petitioner’s servicemark and the licensees using that servicemark on the one
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`hand the Registrant on the other hand. For this reason, the Registrant’s Motion
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`for Summary Judgment should be denied.
`
`Respectfully submitted,
`
`Terrell, Baugh, Salmon & Born, LLP
`
`
`
`. Rounder, Attorney No. 13758-53
`Keith
`700 South Green River Road, Suite 2000
`
`Evansville, Indiana 47715
`Telephone: (812) 479-8721
`Facsimile: (812)474-6059
`
`-11-
`
`

`
`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing pleading or paper has been served
`upon the following person(s) by placing the same, properly addressed, and with
`first—c|ass postage prepaid, in the United States mail on this date: December 17,
`2008.
`
`I further certify that the foregoing document complies with the
`requirements of Trial Rule 5(G) with regard to information excluded from the
`public record under Administrative Rule 9(G).
`
`Richard M. LaBarge
`Marshall, Gerstein & Borun LLP
`6300 Sears Tower
`
`Chicago, Illinois 60606
`
`Qgag
`
`Keith E. Rounder
`
`-12-
`
`

`
`AFFIDAVIT OF
`
`JOSEPH MELLUSO
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`JOSEPH MELLUSO,
`
`VS.
`
`SEA DINING, LLC.
`
`Petitioner,
`
`Registrant.
`
`\./g/xaxyx/\/\/\/%
`
`Cancellation No. 92048839
`
`Reg. No. 2673458
`
`AFFIDAVIT OF JOSEPH MELLUSO
`
`I, Joseph Melluso, being first duly sworn upon my oath, depose and say
`
`as follows:
`
`1.
`
`I am over eighteen (18) years of age and the statements made
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`herein are made upon personal knowledge, and if required to do so, I am and
`
`would be competent to testify as to the matters set forth herein.
`
`2.
`
`3.
`
`I am the same Joseph Melluso who is the Petitioner in this case.
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`I have licensed the name “Tin Fish” to various restaurants,
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`including restaurants located in Imperial Beach, California, San Diego, California,
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`Newburgh, Indiana and Evansville, Indiana.
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`l have worked at each of those
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`restaurants during the start up of each operation.
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`4.
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`Numerous customers visiting the above—referenced Tin Fish
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`restaurants have stated to me that they previously visited the “Tin Fish”
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`restaurant in Chicago and each were under the impression that the Chicago Tin
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`Fish restaurant was affiliated with and part of the same operation as the above-
`
`referenced Tin Fish restaurants.
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`

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`5.
`
`On one occasion, a customer contacted me to complain about the
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`Chicago Tin Fish restaurant. The customer had held a wedding reception at the
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`Chicago Tin Fish restaurant, was not happy with the food and the service
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`provided and wanted to complain to the corporate office. The customer directed
`
`the complaint to me believing that my office was the corporate office for the
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`Chicago Tin Fish restaurant.
`
`6.
`
`l have received other complaints from customers who have eaten
`
`at the Chicago Tin Fish restaurant and were unhappy with the service and quality
`
`of food and believed that they were making a complaint to the corporate
`
`headquarters of “Tin Fish” when they contacted me.
`
`FURTHER, AFFIANT SAYETH NO .
`
`COUNTY OF
`
`
`
`
`
`Before me, a
`appeared the within n
`his free and voluntary ac
`
`otary Public in and for said county and state, personally
`ed Joseph Melluso, who acknowledged the foregoing as
`nd deed.
`
`WITNESS my hand an Notarial Seal this _ day of December, 2008.
`
`My County of Residence is:
`
`My Commission Expires:
`
`Notary Public
`
`
`
`2
`
`‘K sat, l'3<\’*t‘A<.llP«D OM17.
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`

`
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`
`On
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`('1: lOl’l.0§ Q
`
`before me, (.>L.£n}F/R
`
`(L); EA’122 243‘--fig
`
`(Here insert name and title of the officer)
`
`personally appeared
`
`,
`
`,
`
`,
`
`who proved to me on the basis of satisfactory evidence to be the personw whose namely)’ is/are subscribed to
`the within instrument and acknowledged to me that he/6-heltl-rey executed the same in hislherltheir authorized
`capacity(je§), and that by his/«lsiei-fitl-re-ir signature(z() on the instrument the persongsj, or the entity upon behalf of
`which the person“) acted, executed the instrument.
`
`ii
`.
`
`I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
`is true and correct.
`
`CALIFORNIA ALL-PURPOSE
`
`CERTIFICATE OF ACKNOWLEDGMENT
`
`State of California
`
`County of
`
`SAN)
`
`3‘ 2
`
`OLIVER BOCAYA
`Commlsslon # 1678339
`.V Notary Public _ Camomkl
`San Diego County
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`WITNESS my hand and official seal.
`‘
`
`Signature of Notary Public
`
`(Notary Seal)
`
`
`
`ADDITIONAL OPTIONAL INFORMATION
`
`DESCRIPTION OF THE ATTACHED DOCUMENT
`_
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`‘
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`{ (Additional information)
`acknowledgmentverbiageasmaybeprintedonsuchadocumentsolongasthe
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`°o99
`
`INSTRUCTIONS FOR COIVfl’LETING THIS FORM
`Any acknowledgment completed in California must contain verbiage exactly as
`appears above in the notary section or a separate acknowledgment form must be
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`document carefullyfor proper notarial wording and attach thisform ifrequired.
`
`0 State and County information must be the State and County where the document
`signer(s) personally appeared before the notary public for acknowledgment.
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`Indicate the correct singular’ or plural forms by crossing of? incorrect f0v|'mS (i.e.
`he/she/t-hey,— IS /are ) or circling the correct forms. Failure to correctly indicate this
`information may lead to rejection of document recording.
`- The notary seal
`impression must be clear and photographically reproducible.
`Impression must not cover text or lines. If seal impression smudges, re-seal if a
`sufficient area pennits, otherwise complete a different acknowledgment fonn.
`- Signature of the notary public must match the signature on file with the office of
`th
`cle k.
`egountlzildditlional
`infonnation is not required but could help to ensure this
`8
`acknowled merit is not misused or attached to a different document.
`o
`9
`Indicate title or type of attached document, number of pages and date.
`-
`~
`Indicate the capacity claimed by the signer. If the claimed capacity is a
`corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
`- Securely attach this document to the signed document
`
`I
`
`
`2008 Version CAPA vl2.lO_O7 800-873-9865 www.NotaryClasses.com
`
`

`
`AFFIDAVIT OF
`
`ROBERTA HEPBURN
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`JOSEPH MELLUSO,
`
`vs.
`
`SEA DINING, LLC,
`
`Petitioner,
`
`Registrant.
`
`\/»z\z\_/\/\/‘as/\-r
`
`Cancellation No. 92048839
`
`Reg. No. 2673458
`
`AFFIDAVIT OF ROBERTA HEPBURN
`
`I, Roberta Hepburn, being first duly sworn upon my oath, depose and say
`
`as follows:
`
`1.
`
`I am over eighteen (18) years of age and the statements made
`
`herein are made upon personal knowledge, and if required to do so, I am and
`
`would be competent to testify as to the matters set forth herein.
`
`2.
`
`3.
`
`I am the owner of the Tin Fish restaurant in San Diego, California.
`
`I have been granted a license to use the “Tin Fish” name for my
`
`restaurant. The license was granted to me by Joseph Melluso.
`
`4.
`
`My restaurant in San Diego is not affiliated with any restaurants in
`
`Chicago, nor do I have any ownership interest in any restaurants in Chicago.
`
`5.
`
`Oh numerous occasions, customers visiting my restaurant in San
`
`Diego have advised me that they have also eaten at a Tin Fish restaurant in
`
`Chicago and in each instance were under the impression that the Tin Fish
`
`restaurant in Chicago was affiliated with my restaurant in San Diego.
`
`

`
`6.
`
`l have also had numerous customers dining at my restaurant in San
`
`Diego tell me that they have visited the Tin Fish restaurant in Chicago believing
`
`that the Chicago restaurant was my restaurant.
`
`FURTHER, AFFIANT SAYETH NOT.
`
`‘saw
`
`Roberta Hepburn
`
`
`
`V
`
`//o/0% W
`
`STATE OF #
`
`.
`'
`-
`A
`COUNTY OF 55//I/7/#6/(1
`
`)
`)
`)
`
`Before me, a Notary Public in and for said county and state, personally
`appeared the within named Roberta Hepburn, who acknowledged the foregoing
`as her free and voluntary act and deed.
`
`WITNESS my hand and Notarial Seal this 5/éay of December, 2008.
`
`My County of Residence is:
`aixr//z/Ma/5,
`
`My Commission Expires:
`y
`g
`fl / /
`/"
`
`’
`
`Nota
`
`ublic
`
`_
`"."""i'2'r'x'\?il71'<3'r3l'i5'<§fMAeNo
`Comm#DD0627061
`
`
`

`
`AFFIDAVIT OF
`
`BARRY J. WILLIAMS
`
`

`
`
`
`12/12/2868
`12/12/2868
`
`21:48
`aazso
`
`3633167669
`a12a745usa
`
`FEDEXOFFICE1783
`TBSB
`
`PAGE
`PAGE
`
`92/04
`52/g3
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TFIIAL AND APPEAL BOARD
`
`JOSEPH MELLUSO,
`
`vs.
`
`SEA DINING, LLC,
`
`Petitioner.
`
`Registrant.
`
`saxasay/\/sax/\4\,
`
`Cancellation No. 92043339
`Reg. No. 2673458
`
`Afl‘1|.:2A.VJ.I..0_F_______BARRY-fill-£BM_$.
`
`i, Barry J. Williams, being "first duly sworn upon my oath, depose and say
`
`as follows:
`
`1.
`
`I am over eighteen (18) years of age and the statements made
`
`herein are made upon personal knowledge, and if required to do so, I am and
`
`would be competent to testity as to the matters set forth herein.
`
`2.
`
`3.
`
`I am a resident of Evansville, Indiana.
`
`I now have an ownership interest in a Tin Fish restaurant in the
`
`Evansville area. The ‘Tin Flsh" name used for that restaurant is licensed by
`
`Joseph Meliuso.
`
`4.
`
`in early 2008, I was in Chicago, Illinois and visited the Tin Fish
`
`restaurant located there.
`
`I was under the impression that the Chicago Tin Fish
`
`restaurant was affiliated with the Tin Fish restaurants in the Evansville area.
`
`5.
`
`When I mentioned to the staff that I was familiar with other Tin Fish
`
`restaurants in "Joe Melluso’s group," I was informed by the statt there that the
`
`Chicago Tin Fish restaurant had no affiliation with Joseph Melluso or any
`
`restaurants with which he was affiliated.
`
`i was also told by the Chicago Tin Fish
`
`

`
`
`
`12/12/2868”, 21: 48
`
`3633157669
`
`FEDEXDFFICE1783
`
`12/12/2398
`
`0925!:
`
`8124746959
`
`TBSB
`
`PAGE
`
`93/54
`
`PAGE
`
`33/33
`
`staff that “Joe Mellusds group," was “just a small over-the—counter business on
`
`the West Coast."
`
`6.
`
`Until the staff of the Chicago Tin Fish told me that there was no
`
`association between that restaurant and any Tin Fish restaurant affiliated with
`
`Joseph Melluso, I assumed, based on the name, decor and menu that the
`
`Chicago Tin Fish restaurant was part of the same group of restaurants as the
`
`other Tin Fish restaurants with which I was already familiar.
`
`FURTHER. AFFIANT SAYETH NOT.
`
`
` Barry 3. Willi
`
`) )
`
`STATE OF INDIANA
`
`COUNTY OF VANDERBUHTGH )
`
`Before me, a Notary Public in and for said county and state, personally
`appeared the within named Barry .J|. Williams, who acknowledged the foregoing
`as his free and voluntary act and deed.
`
`WITNESS my hand and Notarial Seal this Qday of December, 2008.
`
`My County of Residence is:
`
`My Commission Expires:
`.m_Q§J ___
`
`(Printed Name)
`
`LISA MATSUO
`
`STATE OF COLORADO
`
`NOTARY PUBLIC
`
`My commission expires 03125/2011