`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`cancellation No_ 92063171 ..7(, ,2 1’ I '
`
`g/
`
`In re Registration No. 2,569,766
`Registered: May 14, 2002
`For Mark: Chief Wahoo Design
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ . _ _ X
`
`PEOPLE NOT MASCOTS, INC., ANTHONY
`MENESS, SHYANNE MENEss, FEATHER
`SHENDO, ROBERT ROCHE, SUNDANCE,
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`JEANNINE WITHROW, ROsE ROUBIDEAUX,
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`CLIFFORD A. TAHSLER, WENONAH GREGG,
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`RAYMOND MOODY, DEREK WITHROW, PAUL
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`WITHROW and OT. WILLIAMS,
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`Petitioners,
`
`V.
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`CLEVELAND H\IDIANS BASEBALL COMPANY
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`LP and CLEVELAND INDIANS BASEBALL
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`COMPANY, INC.,
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`- -_ -_ __ -_ _- __ -_ -- __ __ -_ -_ __ __ -_ _- _- __ __ -- _- -_ _-X
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`Registrants.
`
`APPENDIX TO REGISTRANTS’ MOTION TO
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`DISMISS OR SUSPEND THE PROCEEDING
`
`numnmuummmuminumummmmmum
`03-31-2016
`U 3 Patent 8‘ TMCTUTM Mail Rent DI
`
`av
`
`“Express Mail” Mailing Label Number
`
`(‘
`1’
`
`.
`
`‘
`C 36) ii
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`,
`
`1&5
`
`I hereby certify that this paper or fee is being deposited with the United States
`Postal Service “Express Mail Post ofiice to Addressee” service under 37
`CPR. l.l0 on the date indicated below and is addressed to the Commissioner for
`Trademarks, Post Registration Division, PO. Box 145], Alexandria, Virginia
`22313-145] on
`-
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`C O
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`6%ll)ep{>5(f) Q,.’&,(_p,,;‘.?€”,, M’ 7"“
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`
`
`
`JOHN R. SOMMER
`
`Attorney-At-Law
`17426 Daimler Street
`
`Irvine, California 92614-5514
`(949) 752-5344, Fax: (949) 752-5439
`SOMMER@STUSSY.COM
`
`January 21, 2016
`
`Mr. Daniel E. O’Toole
`Clerk
`
`United States Court of Appeals
`for the Federal Circuit
`
`717 Madison Place NW
`
`Washington DC 20005
`
`Re:
`
`In re Brunetti, Case No. 2015-1109
`Appellant Erik Brunetti’s Letter Brief (per the order ofDecember 22, 2015)
`
`Dear Mr. Toole:
`
`This letter contains the additional briefing concerning the impact ofthe en banc decision in In re
`
`Tam, Case No. 14-1203 (all page references are to the majority opinion), as requested by the Court’s
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`order ofDecember 22, 2015.
`
`Short Answer
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`Applicant Erik Brunetti submits that scandalous marksl should be treated the same as
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`disparaging marks. Therefore, all the reasons given in Tam, about why Section 2(a)’s prohibition ofthe
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`registration of disparaging marks are also applicable to scandalous marks.
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`‘ This letter refers to “scandalous” marks since that is the statutory term As argued in
`Brunetti’s briefs, Section 2(a) prohibits registration of scandalous marks; it does not prohibit registration
`of marks that are Vulgar but not scandalous. However, in this case, the PTO refiised Brunetti’s mark
`because it was vulgar but did not attempt to show it was scandalous. Either way, Section 2(a) is
`unconstitutional And if Section 2(a) prohibits the registration of marks that are vulgar but not
`scandalous, then the case for unconstitutionality is even stronger.
`1
`
`
`
`The Tam Decision Applies to Scandalous Marks
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`“The government cannot refiise to register disparaging marks because it disapproves ofthe
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`expressive messages conveyed by the marks.” Tam, 4. A mark is scandalous only if it conveys a
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`message. It follows that the refusal to register a scandalous mark is unconstitutional for the same
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`reasons as the prohibition of disparaging marks: government disapproval of expressive messages
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`conveyed by marks is not a constitutionally valid reason to refiise registration. This really is all that
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`needs to be said.
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`Section 2(a)’s Prohibition of Scandalous Marks is Unconstitutional
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`Under the Strict Scrutiny Standard
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`Like disparagement, the “scandalous” provision in Section 2(a) discriminates based on
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`disapproval ofthe message. It is not content neutral Specifically, it is not viewpoint neutral Instead, it
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`is always viewpoint discriminatory.
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`The discussion in Tam, starting at page 17, refers generally to “any governmental regulation that
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`burdens private speech based on disapproval of the message conveyed.” “It is beyond dispute that
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`Section 2(a) discriminates on the basis of content in the sense that it ‘applies to particular speech
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`because ofthe topic discussed.”’ Tam, 18- l 9. “[E]very rejection under the disparagemcnt provision is
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`a message—based denial of other-available legal rights.” Footnote 5 at 20. For both “disparagement”
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`and “scandalous,” it is the content that causes the refusal (or cancellation). The principle is the same for
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`both.
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`It follows that Section 2(a)’s prohibition of scandalous marks is also unconstitutional.
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`
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`Are there other bases for distinguishing Tam ’s holding as to disparaging marks from scandalous
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`marks? The test for determining disparaging is slightly difierent than scandalous. The former only
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`requires “may disparage,” scandalous is not qualified by “may.” That is not a valid basis to distinguish
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`these two prongs of Section 2(a). The PTO has to determine the opinions ofa group to see if a mark
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`is disparaging or scandalous. The affected group is dilferent: for disparagement it is the group
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`disparaged, for scandalous it is the entire public that is considered. The “legal significance ofviewpoint
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`discrimination is the same whether the government disapproves ofthe message or claims that some part
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`of the populace will disapprove ofthe message.” Tam, 21. As noted in Tam, “[1]isteners’ reaction to
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`speech is not a content—neutral basis for regulation.” Tam, 19, citing Forsyth Cty. v. Nationalist
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`Movement, 505 U.S. 123, 134 (1992). So for either prong, it does not matter whether the group is
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`large or small For both prongs, the unpopularity ofthe speech with a majority or with a minority, or
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`with the government itselfi is not a valid ground to penalize such speech.
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`Section 2(a)’s prohibition of scandalous marks a_lLI_a3Ls is a regulation of speech based upon the
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`content of that speech. It follows from Tam, that Section 2(a) is also unconstitutional as to the
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`prohibition of scandalous marks.
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`Govemment’s Defense of Section 2(a)
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`What does the government say in support ofthe constitutionality of Section 2(a) as to
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`scandalous marks? In its brief in this case, the government refused to say anything in response to
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`Brunetti’s constitutional arguments.
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`In oral argument, the government evaded the panel’s specific
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`questions about how Tam would affect this case. So Brunetti has no idea what, if any arguments, the
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`government will make. Since the Court ordered that these letter briefs be exchanged simultaneously,
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`
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`Brunetti cannot respond to whatever the government might say. If the government merely argues that
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`Tam was incorrectly decided and that it plans to file for certiorari, that does not need any response from
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`Brunetti. But if the government does come up with some colorable argument as to the constitutionality
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`of Section 2(a) as to scandalous marks, then fairness requires that Brunetti be given an opportunity to
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`respond, especially since the government refiised to make its arguments at the proper time:
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`in the briefs
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`and at oral argument.
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`The government defended Section 2(a) in its statements in its en banc brief in Tam, arguing that
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`the government ought to be allowed to prevent the registration of “’the most vile racial epithets,’
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`‘religious insults,’ ‘ethnic caricatures,’ and ‘rnisogynistic images.”’ Tam, 50, As the en banc panel held
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`in Tam, that is no justilication for Section 2(a)’s prohibition of disparaging marks. Brunetti submits that,
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`by analogy to that holding, there is no governmental interest in preventing vulgarity in the nation. That is
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`the whole point of freedom of expression. And Section 2(a) has not and cannot prevent vulgar hwnor
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`or vulgarity in general in the nation, so that is an imposslble quest.
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`The argument that the government is not prohibiting speech was rejected by Tam.
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`"The distinction between laws burdening and laws banning speech is but a matter of degrees.” Ia_m,
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`18. The discrimination against marks with unpopular messages is identical for both disparaging and
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`scandalous marks:
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`the lack of constructive nationwide use, the inability to obtain a constructive first—use
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`date under Section 1(b), the lack ofpresurnptions under Sections 15 and 33, are all of such importance
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`that they strongly discourage the adoption of marks with disfavored content. So this is not a basis for
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`distinguishing Tam from this case.
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`The discussion of why the government speech and the government spending doctrines are not
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`applicable was well covered in Tam and there is nothing about those doctrines that would be different
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`
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`for scandalous marks than for disparaging marks. Either the Principal Regster is government speech or
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`use of the government spending power, or it is not. And Tam correctly made the determination that
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`trademark registration is neither.
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`In summary, the government has no defense to Section 2(a)’s prohibition of scandalous marks.
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`Section 2(a) is Unconstitutionally Vague
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`If the Court holds Section 2(a)’s scandalous prong to be facially unconstitutional it is not
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`necessary for it to reach the vagueness question. But ifthe Court decides to reach this question,
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`Biunetti submits that “scandalous” is just as vague as “may disparage” (cf , Tam decision, at pages 30
`
`to 34). Especially pertinent is Tam, footnote 6 at 31.
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`The vagueness of “scandalous” (which is more vague than “disparage”) is increased by the fact
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`that the scandalous prohibition has been extended by case law to include marks that are not scandalous
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`but only vulgar. So “scandalous” is even vaguer than “disparage.”
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`Brunetti contends that in practice, PTO’s refusal of allegedly scandalous marks is beyond
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`merely inconsistent, but irrational and random His briefmentioned that the PTO has repeatedly
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`approved FCUK without even an office action raising Section 2(a), even though FCUK is used to mean
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`“fuck,” While Brunetti’s FUCT is refused. If the refusal of FUCT is correct, it is because it is a
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`misspelling of luck. But why is not FCUK. The question of whether the PTO ’s decision making about
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`similar marks (e. g. , marks that mean “fi1ck”) is unconstitutionally inconsistent is not answered by Tam.
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`So this panel will need to consider this question2
`
`2 Marks that clearly include or mean “fuck” that are registered on the Principal Register: WTF,
`FCUK, F*WORD, FRIGGIN*.*, FRIGGIN (in an oval). MILF has both been refused and
`registered, multiple times for each. Other marks that could easily be considered scandalous but the
`PTO seemingly does not even raise the question include: HITLER, KKK, N*WORD, SLAVE.
`5
`
`
`
`Tam’s conclusion that the uncertainty of application of Section 2(a) “contributes significantly to
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`the chilling eifect on speech,” id. , 33 , applies equally to the PTO ’s consideration of allegedly scandalous
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`mark. Section 2(a) has been applied in a random manner to approve some and refuse other
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`applications based upon the alleged scandalous nature ofthe marks. If the uncertainty the meaning of
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`“may disparage” is a constitutional problem, then it is a greater problem with respect to allegedly
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`“scandalous” marks.
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`Section 2(a) is Unconstitutional as Applied Against Brunetti
`
`The decision in Tam held Section 2(a) unconstitutional on its face, and Brunetti believes the
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`reasoning applies equally to the scandalous prong. But ifthis panel decides it needs to reach the
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`question of constitutionality, as applied, of Section 2(a) as to scandalous marks, Brunetti believes the
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`Tam decision confirms Section 2(a) is unconstitutional as applied. The TFAB explicitly refers to
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`Brunetti’s alleged views about the role ofwomen (“strong, and often explicit, sexual imagery that
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`objectifies women and offers degrading examples of extreme misogyny”), drugs and violence, and
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`“extreme nihilism — displaying an unending succession of anti~social imagery of executions, despair,
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`violent and bloody scenes including disrnemberment, hellaeious or apocalyptic events, and dozens of
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`examples of other imagery lacking in taste.” (A9). Clearly, the government does not agree with
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`Brunetti’s views (or more actually, his views as misperceived by the government). But whether the
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`government perceives his views correctly or not, the government is taking adverse action against
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`Brunetti because ofpolitical and social opinions the government feels should be disfavored.
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`SURF NAZI and COFFEE NAZI have been refused; VAMPIRES VS. NAZIS and NAZI
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`WEREWOLVES FROM OUTSPACE are registered.
`6
`
`
`
`Section 2(a)’s Prohibition of Scandalous Marks is Unconstitutional
`
`Under Central Hudson
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`Brunetti believes that the Tam decision requires this panel to find Section 2(a)’s prohibition of
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`scandalous marks to be facial unconstitutional} If this panel declines to do so, and instead applies an
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`intennediate level of scrutiny, then it needs to address Central Hudson. See, Tam, 50-61. The entire
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`analysis ofthe four Central Hudson factors applies equally to both scandalous and disparaging marks.
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`Brunetti argues that the government has no legitimate interest under Central Hudson because it
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`acknowledges that marks can be used regardless ofwhether registered. While the government proffers
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`an interest in being disassociated from hate speech, the need to be disassociated from scandalous or
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`vulgar speech is even less. And pointless, since scandal and vulgarity cannot be removed from this
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`country even if Section 2(a) was applied rigorously. It follows that the govern1nent’s interest in
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`dissuading the use of scandalous rmrks (disparaging) is less than even with disparaging marks.
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`The conclusions reached in the Tarn decision cover scandalous marks. The government’s
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`alleged interest “boil{s] down to permitting the government to burden speech it finds otfensive.” Tam,
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`61.
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`‘This is not a substantial government interest. With no substantial government interests, the
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`[substitute “scandalous” for “disparaging”] provision of § 2(a) cannot satisfy the Central Hudson test.”
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`Id. Therefore, the scandalous provision is also unconstitutional under the Central Hudson standard.
`
`3 Consistent with Tam, Brunetti asserts his selection of a trademark is not commercial speech,
`The adoption ofa mark does not propose a specific transaction.
`Instead, his mark conveys a message.
`So Brunetti believes the strict scrutiny is the correct standard.
`
`7
`
`
`
`Ir_rg_)lications of Section 21 at
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`The implications of Section 2(a) are equally applicable to both disparaging and scandalous
`
`marks. If Section 2(a) is constitutional as to such types ofmarks, then any type ofbusiness license or
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`permit (fiom a television or radio license, down to a fishing license) could be refused for the similar
`
`reasons. Would it be constitutional to refiise business licenses or reject a corporate name because the
`
`government did not like with the name? This could often arise with non—profit, political or social action
`
`groups, seeking to promote or prohibit something.
`
`And if Congress could constitutionally refiise Brunetti’s trademark application under Section
`
`2(a) as currently written, then Congress could also grant authority to refuse trademark registration for
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`marks about sensitive subjects: family planning, abortion, gun controL etc. Obviously, that would not
`
`be constitutional
`
`The analogy to copyright, discussed in Tam, is equally applicable to scandalous marks. Could
`
`the Copyright Ofiice be given statutory authority to refuse copyright registration for disparaging works
`
`(e.g., books, songs or movies promoting, or at least perceived by some to promote stereotypes or hate
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`speech)? Could the Copyright Oflice be given statutory authority to refuse registration ofvulgar humor
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`(e. g., Mad magazine), scandal (newsstand tabloids) or pornography? Brunetti submits that both the
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`copyright and trademark registration procedures are substantially equivalent in that if the applicant
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`complies with the procedural requirements, no impediments exists (other than the unconstitutional
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`restriction in Section 2(a)), then the registration will issue. Since it seems universally conceded that
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`Congress could not grant the Copyright Ofiice grounds to deny copyright registration due to
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`disparagement or scandal, it follows that Section 2(a)’s prohibition of disparaging and scandalous marks
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`is unconstitutional
`
`
`
`Other Aspects of Section 2(a)
`
`The Court’s order asked for briefing about “immoral and scandalous marks.” Brunetti’s
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`application was refused because it was vulgar (and therefore, allegedly, scandalous), not because it was
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`immoral Accordingly, this appeal does not involve the “immoral” prong of Section 2(a). The
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`constitutionality of refusals due to “immoral” mark need not be decided in this case.“
`
`Brunetti is not arguing that prohibitions in Section 2(a) other than disparaging and scandalous
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`are unconstitutional This Court need not opine about such other prohibitions. Such prohibitions in
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`might be content—neutral or supported by legitimate governmental interests. But those matters are
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`beyond the issues presented in this case.
`
`Conclusion
`
`Section 2(a)’s prolnbition of scandalous marks is unconstitutional for the same reasons its
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`prohibition of disparaging marks is unconstitutional. Therefore, Brunetti respectfiilly submits that the
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`decision in Tam is dispositive of this case. Brunetti has been denied long enough the benefits of federal
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`registration. Therefore, he requests that the Court promptly issue a decision that Section 2(a) is
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`unconstitutional as to scandalous or vulgar marks, and order that Brunetti’s application be approved for
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`publication without delay.
`
`Very truly yours,
`
`/s/ John R. Sommer
`
`“ See, TMEP, Section 1203 .01: “Although the words “immoral” and “scandalous” may have
`somewhat different connotations, case law has included immoral matter in the same category as
`scandalous matter. See In re McGinley, 660 F.2d 481, 484.”
`
`9
`
`
`
`John R. Sommer
`
`Co:
`
`All counsel of record (through ECF)
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I electronically filed the foregoing LETTER BRIEF with the Clerk ofthe
`
`Court by using the appellate CM/ECF system I certify that the participants in the case are registered
`
`CM/ECF users and that service will be accomplished by the appellate CM/ECF system
`
`Dated: January 21, 2016
`
`/s/ John R. Sommer
`John R, Sommer
`
`ll
`
`
`
`
`
`U.S. Department of Justice
`Civil Division, Appellate Staff
`950 Pennsylvania Ave., NW, Rm. 7258
`Washington, D.C. 20530-0001
`
`Tel: (202) 532-4747
`Email: joshua.m.salzman@usdoj.gov
`
`January 21, 2016
`
`Daniel E. O’Toole
`
`Clerk, United States Court of Appeals
`for the Federal Circuit
`
`717 Madison Place, N.\X/.
`Washington, D.C. 20439
`
`By CM/ECF
`
`Re:
`
`In re Bmnetti, No. 2015-1109
`
`Dear Mr. O’Toole:
`
`Pursuant to this Court’s order of December 22, 2015, we respectfully submit
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`this letter brief regarding the impact of this Court’s decision in In re Tam, 808 F.3d
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`1321 (Fed. Cir. 2015) (en banc), on the above—captioned case. In particular, as
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`instructed by the Court, we address whether, in light of the T4772 decision, there is any
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`basis for treating the portion of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),
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`that bars registration of immoral and scandalous trademarks differently from the
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`portion of Section 2(a) that bars registration of disparaging marks, which was held in
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`Tam to be facially unconstitutional. Although a court could draw constitutionally
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`significant distinctions between these two parts of Section 2(a), we do not believe,
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`
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`given the breadth of the Court’s Tam decision and in View of the totality of the
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`Court’s reasoning there, that there is any longer a reasonable basis in this Court’s law
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`for treating them differently. We therefore agree that the proper disposition of this
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`case under the law of this Court is to vacate and remand the Board’s decision for
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`further proceedings, as in Tam, because the reasoning of Tam requires the invalidation
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`of Section 2(a)’s prohibition against registering scandalous and immoral marks as well.
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`The United States believes that Tam was wrongly decided and is considering
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`whether to seek review of that decision in the Supreme Court. Among other things,
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`we maintain that the federal trademark registration program does not restrict speech,
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`but rather subsidizes and encourages the use of certain marks in commerce. The
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`government’s refusal to subsidize certain types of marks comports with the First
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`Amendment. See, e.g., Rmz‘ V. Sta//ivaiz, 500 U.S. 173 (1991); see a/to Tam, 808 F.3d at
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`1368-72 (Dyk, ]., concurring in part and dissenting in part). Under this framework,
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`both challenged provisions of Section 2(a) withstand constitutional scrutiny. We
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`recognize, however, that Ta/72 rejected that framework (among other holdings); that
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`Tam constitutes the law of this Circuit; and that we are thus foreclosed from renewing
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`that argument here in defense of Section 2(a)’s prohibition on registration of
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`scandalous and immoral marks.
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`The United States does not concede, moreover, that any challenged provision
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`in Tam or in this case would need to be invalidated even if that framework were
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`rejected. This Court’s opinion in Tam, however, went significantly beyond rejecting
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`2
`
`
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`that framework, and after careful review of the Court’s entire opinion, we do not
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`believe that Section 2(a)’s prohibition on registration of scandalous and immoral
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`marks can withstand challenge under the current law of this Circuit.
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`We note that, if Tam had been decided on narrower grounds, the
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`disparagement provision and the scandalousness provision would not necessarily rise
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`or fall together, as the arguments relevant to the two provisions are distinct in some
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`respects. For example, this Court stated in Tam that Section 2(a)’s disparagement
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`provision “denies registration only if the message received [by the referenced group] is
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`a negative one. Thus, an applicant can register a mark if he shows it is perceived by
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`the referenced group in a positive way, even if the mark contains language that would
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`be offensive in another context.” Tam, 808 F.3d at 1337. The Court concluded that
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`the disparagement provision unconstitutionally discriminates on the basis of
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`viewpoint. See genera/Q id. at 1335-37. The United States disagrees with that
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`conclusion, but even accepting it as the law of this Circuit, that aspect of the Court’s
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`reasoning would not necessarily carry over to Section 2(a)’s bar on registering
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`scandalous and immoral marks. Likewise, the government’s interest in refusing
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`federal registration of scandalous trademarks, such as those that are profane or
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`sexually explicit, may differ in some ways from its interest in refusing federal
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`registration of disparaging trademarks. Tee, e.g., Cigi ofRamon 22. P/cg/time Tbeatrer, Ina,
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`475 U.S. 41, 49 (1986); FCC. y. Pczczfim Found, 438 U.S. 726, 746-47 (1978).
`
`
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`In recognizing the import of this Court’s Tam decision as a matter of circuit
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`precedent, the government has not determined against defending the constitutionality
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`of any provision of Section 2(a). Cf 28 U.S.C. § 530D. We reserve the prerogative of
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`the Solicitor General to seek review of this Court’s decisions, both here and in Tam, in
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`the Supreme Court. If the Solicitor General does seek Supreme Court review, the
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`government may argue that, under reasoning less sweeping than that adopted in Ta/77,
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`the bar on registration of scandalous and immoral marks would survive even if the bar
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`on registration of disparaging marks were held invalid (or vice versa). For purposes of
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`this Court’s review of Mr. Brunetti’s challenge, however, we acknowledge that this
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`Court has spoken.
`
`
`
`Of Coanxels
`
`THOMAS W. KRAUSE
`
`Acting Solicitor
`
`CHRISTINA HIEBER
`THOMAS L. CASAGRANDE
`
`Auoriate folicitory
`
`U.5. Patent and Tradenzar/é Ofite
`Mail Stop 8, P. O. Box 7450
`Alexandria, Virginia 223 73
`
`JANUARY 2016
`
`Respectfully submitted,
`
`BENJAMIN C. MIZER
`Princibal De/‘Jay! Assistant
`Attorngz General
`
`MARK R. FREEMAN
`
`DANIEL TENNY
`
`MOLLY R. SILFEN
`
`[st Z0:/ma M. Salg/nan
`JOSHUA M. SALZMAN
`(202) 5324747
`Attorney/J, Appellate Stafl
`Civil Diniyion, Room 7258
`
`U. S. Departrnent cffnstice
`950 Penny)/lz/ania Ave., N. W.
`W/aybington, D. C. 20530
`joy/9aa. in. 5algnian@axa’0j.go2/
`
`Attorney:for Dl7”€Cf07} U. S.
`Patent and Tradeinarzé O/jice
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that onjanuary 21, 2016, I electronically filed the foregoing
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`with the Clerk of the Court by using the appellate CM/ECF system.
`
`I certify that the
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`participants in the case are registered CM/ECF users and that service will be
`
`accomplished by the appellate CM/ECF system.
`
`3/ jar/ma M. Sax/{man
`JOSHUA M. SALZMAN
`
`
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that, on March 31, 2016, I caused a true and correct copy of the
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`foregoing Appendix to Registrant’s Motion to Dismiss or Suspend the Proceeding to be sent via
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`First Class Mail, postage prepaid, to Petitioners’ counsel of record, Lisa Mach, Esq., Mach Legal
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`& Consulting Services LLC, 8639 Usher Rd., Olmsted Township, OH,44 1;8.
`I ‘/
`xi
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`4
`j_/ //
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`,
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`/
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` Mar L. Kevlin