Monday, October 16, 2006

Stoller Bankruptcy Trustee Willing to Dismiss Pending Proceedings

The Chapter 7 Trustee for the estate of Leo Stoller (see TTABlog postings here and here) has sent the following e-mail to me, indicating his willingness to dismiss without prejudice pending proceedings involving the mark STEALTH. He would also consider resolution of proceedings involving other marks asserted by Stoller. The Trustee's message is set forth below.

Dear Mr. Welch:

By Order of the U.S. Bankruptcy Court for the Northern District of Illinois effective September 1, 2006, I have been appointed the chapter 7 trustee in connection with the administration of the estate of Leo Stoller. This authority vests in me the ability to begin, maintain, terminate, or settle any pending proceeding that involves Mr. Stoller or any of his proprietorship entities. By further Order of the Court effective October 5, 2006 that authority has been extended to include actions as sole share holder of all corporate entities owned or controlled by Mr. Stoller. Mr. Stoller has thus been relieved of his ability to act as a representative of his corporations or proprietorships, including the filing of or response to any motions in any pending trademark opposition or cancellation proceedings.

I have reviewed what information has been provided regarding any business activity that would give rise to potential trademark rights, whether registered or at common law. I have also reviewed the district court's Judgment dated October 4, 2006 in connection with Central Mfg. Co. v. Pure Fishing, Inc., No. 05 C 00725 (N.D. Ill.) which cancelled a number of STEALTH-based trademark registrations.

In connection with any trademark opposition or cancellation that was pending on or before September 1, 2006, you may announce in the TTABlog that I would favorably consider any reasonable Agreed Motion to Dismiss Without Prejudice such a proceeding that involved any of the STEALTH trademark rights asserted by Mr. Stoller or one of his corporate entities. I would also agree to consider, on a case-by-case basis, oppositions or cancellation proceedings that involved other trademark rights asserted by Mr. Stoller following a reasonable investigation into the basis for the proceeding.

Richard M. Fogel
(Not individually but as chapter 7 trustee in the estate of Leo Stoller)
Shaw Gussis Fishman Glantz Wolfson & Towbin LLC
321 N. Clark Street, Suite 800
Chicago, IL 60610
Direct dial: (312) 276-1334
Direct fax: (312) 275-0578

TTABlog note: The Order authorizing the Trustee to act on behalf of Stoller's wholly-owned companies may be found here. It would probably be wise to include a copy of that Order as an exhibit to any stipulated dismissal paper.
TTABlog update: In two STEALTH oppositions, the applicants have already filed papers signed by the Trustee, to effect dismissal of the oppositions without prejudice.

In Central Mfg. Co. v. Pocekovic, Opposition No. 91164582, the parties filed an "Agreed Motion to Dismiss" (here), and the Board accordingly dismissed the proceeding without prejudice (here).

In Central Mfg. Co. v. Premium Prods., Inc., Opposition No. 91159950, the parties filed a "Stipulated Dismissal Without Prejudice" (here). [Under Rule 41(a)(1), FRCP, this stipulated dismissal is effective immediately, even without Board action. I think this is the better of the two approaches]. TTAB dismissal here.

Text Copyright John L. Welch 2006.


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