TTAB Posts August 2010 Hearing Schedule

The Trademark Trial and Appeal Board has scheduled three (3) hearings for the month of August, as listed below. The hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. [The hearing schedule and other details regarding attendance may be found at the TTAB website.] Briefs and other papers for these cases may be found at TTABVUE via the links provided.


August 3 - 2 PM: In re Jonathan Drew, Inc. d/b/a Drew Estate, Serial No. 77099522 [Refusal to register the mark KUBA KUBA for cigars, tobacco, and related products, on the ground that the mark is primarily geographically deceptively misdescriptive under Section 2(e)(3)].


August 12 - 2 PM: Cardinal Health 303, Inc. v. The Alaris Group, Inc., Oppositions Nos. 91177234, 91177365, and 91177367, and Cancellation No. 92048172 [Consolidated Section 2(d) proceeding concerning likelihood of confusion between Plaintiff's mark ALARIS for various medical products and services relating to intravenous (“IV”) medication delivery and infusion therapy, patient monitoring and related products and services, and Defendant's marks ALARIS SELECT, ALARIS ADVANTAGE, ALARISWARE, and ALARIS for "medical consulting services in the field of medical and vocational rehabilitation primarily responding to the needs of the workers compensation industry].


August 19 - 11 AM: In re Trek 2000 International, Ltd., Serial No. 77099785 [Refusal to register the term THUMBDRIVE for "portable digital electronic devices for recording, organizing, transferring, storing, and reviewing text, data, image, audio and video files; computer software for use in recording, organizing, transferring, storing, and reviewing text, data, image, audio and video files on portable digital electronic devices," on the ground of genericness].


Text Copyright John L. Welch 2010.

WYHA? TTAB Affirms 2(d) Refusal of "RIPPLE KIDS & Design" Over "RIPPLE & Design," Both for Stationery

In a terse ten-page decision, the Board affirmed a Section 2(d) refusal to register the mark RIPPLE KIDS in standard character and design form (below left) [KIDS disclaimed], finding the marks likely to cause confusion with the registered mark RIPPLE & Design shown below right, all for stationery products. Would you have appealed? In re Ripple Kids Inc., Serial No. 77492885 and 77493208 (July 14, 2010) [not precedential].

The Board found some of the respective goods of the parties to be legally identical, and therefore it presumed that the goods travel in the same channels of trade to the same classes of consumers.

As to the marks, the Board not surprisingly deemed RIPPLE to be the dominant part of Applicant's marks. The depiction of ripples reinforces this dominance in the design mark. And the cited mark likewise depicts a few ripples in a "highly similar" design.

The Board concluded that the similarities in the marks outweigh the differences.

Applicant argued that "consumer sophistication should weigh in its favor," but it submitted no evidence in support. In fact, evidence of record showed that stationery is sold on line for less than two dollars.

Applicant also referred to "a number of third-party registrations that contain the word 'Ripple" or "Kids," but again it provided no evidence.

Finally, Applicant lamely argued that the lack of actual confusion should weigh in its favor, but the Board of course pointed out that such a lack carries little weight, especially in an ex parte context where the registrant has no opportunity to be heard. Moreover, the applications at issue are based on intent-to-use, and so there has been no opportunity for confusion.

Balancing the relevant du Pont factors, the Board found confusion likely, and it affirmed the refusal.

Text Copyright John L. Welch 2010.

Finding No Claim or Issue Preclusion, TTAB Denies "MAJOR TAYLOR" Summary Judgment Motion

In a sweeping decision, the Board denied Respondent's motion for summary judgment based on the claim that claim preclusion (res judicata) or issue preclusion (collateral estoppel) required dismissal of the petition for cancellation. The Board then proceeded to point out the deficiencies in the petition, and dismissed one count predicated on Indiana state law. Dallas C. Brown Jr. v. Courtney L. Bishop, Cancellation No. 92050965 (July 12, 2010) [not precedential].


In this battle over rights to the mark MAJOR TAYLOR (once a world champion cyclist), Respondent argued that the petition for cancellation was barred by res judicata in light of a previous Board decision (Karen B. Donovan. v. Courtney L. Bishop, Cancellation No. 92047757 (January 6, 2009) [not precedential]) dismissing that proceeding with prejudice on the ground of lack of standing. Respondent contended that the petitioner in the prior proceeding was in privity with the current petitioner.

Claim Preclusion: The Board found no claim preclusion because its prior decision was on appeal (by way of civil action in the U.S. District Court for the Southern District of Indiana), and thus was not final. Even if that decision were final, the Board would have denied summary judgment here due to a genuine issue of material fact concerning the priority issue.

Issue Preclusion: There was no collateral estoppel because the underlying claims were never litigated or adjudicated. The only issue resolved was the standing of Karen B. Donovan, and that is a different issue from the standing of the current petitioner.

Suspension:The Board then suspended this proceeding pending the outcome of the federal court action, which action could be dispositive of, or have a bearing on, the issues in this proceeding.

Deficient Fraud Claim: The Board then took the opportunity to review several of petitioner's claims. It found plaintiff's pre-Bose fraud allegations to be legally deficient:

At a minimum, petitioner has failed to allege (1) respondent’s intent to deceive or scienter with any particularity, (2) whether such intent to deceive was made knowingly for purposes of deceiving the USPTO, (3) whether respondent’s Declaration was a false and material misrepresentation and (4) specific facts upon which petitioner’s allegation of “upon information and belief” is reasonably based.

Section 2(a) False Association: Petitioner's Section 2(a) claim was also faulty. A plaintiff must allege facts from which the Board may infer that the defendant's mark points uniquely to plaintiff and that consumers would make the assumption that defendant's goods are connected with plaintiff. Here, Petitioner alleged merely that Respondent's use of its mark "falsely suggests a connection with petitioner."

State Law Claim: Finally, the Board struck Petitioner's claim that Respondent's use of the MAJOR TAYLOR mark violated Indiana state law (which requires written consent from Major Taylor's estate in order to use the name). The Board has no authority to determine the right to use under state law.

If the proceeding is resumed, Petitioner must plead proper fraud or Section 2(a) claims, or the petition will be dismissed.

Major Taylor - Paris, 1908
Text Copyright John L. Welch 2010.

TTAB Finds "GOLF SPORT" and "GOLFINO," both with Golfer Designs and both for Clothing, Confusingly Similar

The Board sustained a Section 2(d) opposition to registration of the mark GOLF SPORT & Design (shown below left) for various clothing items [GOLF disclaimed], finding it likely to cause confusion with the mark GOLFINO & Design (below right), both marks for various clothing items. Before you scoff at the ruling, however, you should know that pro se Applicant Gady Desler admitted (by failing to respond to Opposer's admission requests) that "Applicant’s Mark is virtually identical to Opposer’s Marks in sound, appearance, and meaning." Golfino AG v. Gady Desler, Opposition No. 91183317 (July 12, 2010) [not precedential].


The Board also found that "the design of the golfer in each mark is similar and that the design in applicant’s mark predominates over the descriptive wording GOLF SPORT." [I don't agree with that analysis - ed.]. Oh, and both marks begin with the word GOLF. [Yawn! - ed.]

In sum, the Board found the marks to be "similar in appearance, sound, connotation and commercial impression,"

Balancing the relevant du Pont factors, the Board found confusion likely.

TTABlog comment: Note that Plaintiff took its trial testimony by way of written questions, since its witness was located in Germany. Applicant did not file a notice of reliance, take testimony, or file a brief.

Also note that Opposer submitted a Declaration of its counsel, attesting to Applicant's failure to respond to Opposer's admission. Why is a declaration admissible at trial, I ask? Shouldn't Opposer have to submit testimony under oath? I could not find any Rule allowing such a declaration (absent a stipulation from the other side).

Text Copyright John L. Welch 2010.

TTAB Sides With "VALENTINO" in Section 2(d) Fashion Designer Dispute

Sustaining two oppositions and granting two petitions for cancellation, the Board found Defendant's marks GIANNI VALENTINO and GIOVANNI VALENTINO likely to cause confusion with the common law marks VALENTINO and VALENTINO GARAVANI, for clothing and handbags. The Board's 48-page decision puts a rather unfashionable end to this 16-year old TTABrouhaha. Valentino U.S.A., Inc. v. Florence Fashions (Jersey) Limited, Opposition Nos. 91094961 and 91095203, Cancellation Nos. 92029390 and 92029476 (June 25, 2010) [not precedential].

Valentino Garavani
Surname?: Defendants argued that VALENTINO is a common surname, and thus that the asserted marks "are primarily merely a surname [sic] and lack distinctiveness." First, the Board observed that VALENTINO GARAVANI is a personal name, not a surname. Second, as to VALENTINO, "by virtue of exposure to a known designer with the first name of VALENTINO, it is, at a minimum, not primarily merely a surname." In any event, even if VALENTINO is primarily merely a surname, the record established acquired distinctiveness from a date prior to Defendant's constructive first use date.

Priority: Defendant was entitled to rely on the filing date of the pending ITU applications and the underlying ITU applications for the registrations: July 25, 1991. Its attempt to prove a 1997 first use date was "far from clear and convincing."

Plaintiff, the licensee rather than the owner of the pleaded marks, established priority through the testimony of a single witness. All documentary evidence regarding prior sales and advertising was lost in 2002.

Notwithstanding the limitations of plaintiff’s evidence, the inescapable conclusion from the testimony, the magazine advertisements over three decades, and books dedicated to a designer and his fashions, is that plaintiff’s predecessor began selling clothing under the VALENTINO mark sometime in the 1960’s and later extended its line to bags, footwear and accessory items; it is simply not reasonable to conclude that a company continued to advertise in nationally distributed magazines for decades and entered into a consent to use agreement despite making no sales.

Viewing the record as a whole, the Board found that Plaintiff's predecessor-in-interest began using VALENTINO on clothing as early as 1970 and on handbags as early as 1983; and VALENTINO GARAVANI on clothing as early as 1989 and on handbags as early as 1990.

Fame: To prove fame, plaintiff was required to establish the fame of its marks as of the closing of trial. In any case, it failed to prove fame at any time due to its scanty proof of sales and advertising.

The Goods: The Board found that some of the goods in each class of the challenged applications and registrations are identical or otherwise related with those of Plaintiff, and that the parties' channels of trade and customers overlap.

The Marks: Plaintiff's namesake is repeatedly referred to as VALENTINO, and therefore "consumers not familiar with Valentino Garavani's full name would likely believe Giovanni Valentino is referring to Valentino, not knowing his full name is Valentino Garavani." The similarity arising from the name Valentino "has particular weight in the clothing and accessories industry where it is common for designers to shorten their name marks."

The Board concluded that the marks involved are similar in sound, appearance, connotation, and commercial impression.

Other Valentinos: Defendant pointed to other uses of the word VALENTINO in connection with these same goods, but the Board found the evidence insufficient to show that the public has learned to distinguish between and among these various designers. "Although we have given some weight to the evidence of third-party use, the weight is limited given the absence of any corroborating facts bearing on the extent of such use." Moreover, overlapping sales of goods under the mark MARIO VALENTINO must be discounted because there is an agreement in place with Plaintiff and its related companies, in which the parties have agreed to take steps to avoid confusion. [Have they taken those steps? -ed.]

Sophistication of Purchasers: Defendant's sophisticated purchasers argument was easily shot down: "[T]here is no evidence to support a finding that the more disposable income an individual consumer has the more discerning that person is in [his or her] purchasing decision."

Lack of Actual Confusion: Although Defendant has sold some products in the USA, "the record does not show that these sales have been extensive or in overlapping trade channels such that there has been a meaningful opportunity for confusion to occur."

Conclusion: Weighing all the relevant du Pont factors, and resolving all doubt in favor of the prior user, the Board found confusion likely.

TTABlog comment: The third-party uses certainly gave the Board some trouble. What do you think about the outcome?

Text Copyright John L. Welch 2010.

WYHA? TTAB Affirms 2(e)(1) Refusal of "TEQUINI" As Merely Descriptive of Tequila Martini

Examining Attorney Mayur Vaghani refused registration of the mark TEQUINI for "alcoholic beverages, namely tequila and prepared alcoholic cocktails containing tequila," finding it to be merely descriptive under Section 2(e)(1). The record included recipes for a "tequini" from more than a dozen websites. Would you have appealed? In re Tequila Cuervo La Rojena, S.A. de C.V., Serial No. 77455224 (June 21, 2010, mailed July 7, 2010) [not precedential].


Applicant submitted excerpts from two dictionaries that did not include an entry for "tequini," contending that TEQUINI "is not a recognized word in the English language" and that the smushing together of TEQUILA and MARTINI "is incongruous and would require consumers to think about what meaning is conveyed by TEQUINI."

The Board was not moved by Applicant's argument. It observed that just because a term is not found in a dictionary does not mean that it is not descriptive. The Internet evidence convinced the Board that "TEQUINI immediately describes and indeed is used as the name of a particular type of cocktail (i.e., a tequila Martini)."

Nothing in the term is incongruous, indefinite or ambiguous when considered in relation to applicant’s goods and, consequently, no imagination, cogitation or gathering of further information would be necessary in order for customers to perceive the merely descriptive significance of TEQUINI. TEQUINI immediately describes the nature of the product.

And so the Board affirmed the refusal.

TTABlog comment: Genericness, anyone? Pam Chestek recently suggested a new category: WYHF? Would You Have Filed? This one may belong there.

Text Copyright John L. Welch 2010.

Test Your TTAB Judge-Ability: Is "MARGARITA COMPANY" Merely Descriptive of Bar and Restaurant Services?

No, it isn't, said the Board. In a seven-page decision, the TTAB reversed a Section 2(e)(1) refusal to register the mark MARGARITA COMPANY, finding it not merely descriptive of restaurant and bar services. Although the mark is "highly suggestive," the Board resolved its doubts in favor of Applicant, as it must. In re Fazzari Restaurant Group LLC, Serial No. 77109197 (June 22, 2010) [not precedential].


The record included definitions of "margarita" and "company," and evidence that margaritas are served in restaurants and bars, and that many restaurants include "margarita" in their names.

Applicant argued that the words, taken together, "suggest an industrial activity, creating the commercial impression of a business that is engaged in a manufacturing enterprise – e.g., a company manufacturing Spanish or Mexican products (Margarita being the Spanish name of a girl) – not a restaurant or bar offering commensurate services." [But the mark is supposed to be considered in the context of the services, not in the abstract. - ed.]

The Board found the combination to be "incongruous because a restaurant or bar that serves Margaritas does not immediately call to mind a Margarita company, whatever that may be." [Is that the test? I don't think so. - ed.]

MARGARITA COMPANY is not the usual or normal manner in which consumers refer to a restaurant or bar specializing in Margaritas; although it is highly suggestive, it possesses enough incongruity to raise doubt as to its mere descriptiveness because its meaning would not be grasped without some measure of imagination and "mental pause." Accordingly, we find that the term MARGARITA COMPANY, as used in connection with restaurant and/or bar services, does not readily and immediately evoke an impression and understanding of restaurant or bar services.

And so the Board reversed the refusal.

TTABlog comment: Margaritas often give me a "mental pause." I have my own doubts about this decision and I resolve them in favor of me. BTW: if LEMONADE is merely descriptive of restaurant services (see this TTABlog posting), shouldn't this Applicant at least have been required to disclaim MARGARITA?

Text Copyright John L. Welch 2010.

Now Available: TPAC Transcript from May 7, 2010 Meeting

The transcript of the May 7, 2010 meeting of the Trademark Public Advisory Committee (TPAC) is now available in pdf form here. Eric Pelton attended the meeting and summarized it here.


The comments of Acting Chief Judge Gerard F. Rogers are found at pages 80-116.
.

Sidestepping American Fertility, TTAB Finds "PAO DOCE WRAPS" Generic for Bakery Products

Once again taking a tough stance regarding genericness, the Board rejected Applicant's American Fertility-based argument in affirming a refusal to register PAO DOCE WRAPS on the Supplemental Register, finding the term to be generic for "bakery products." In re Leonard’s Bakery, Ltd., Serial No. 77556405 (June 28, 2010) [not precedential].


The Board began by observing that the PTO's evidentiary burden in establishing genericness "is different depending on the type of mark an applicant seeks to register." For compound terms, it is sufficient to produce evidence "that each of the constituent words is generic, and that the separate words retain their generic significance when joined to form a compound that has 'a meaning identical to the meaning common usage would ascribe to those words as a compound.'" In re Gould Paper Corp., 5 USPQ2d 1110, 1111-1112 (Fed. Cir. 1987) (SCREENWIPE held generic as applied to premoistened antistatic cloths for cleaning computer and television screens). However, when a mark is "more in the nature of a phrase, the PTO "must provide evidence of the meaning of the composite mark as a whole." In re American Fertility Society, 51 USPQ2d 1832, 1837 (Fed. Cir. 1999) (SOCIETY FOR REPRODUCTIVE MEDICINE not generic for association services in the field of reproductive medicine because where the mark is a phrase evidence that each separate term is generic is not sufficient).

Examining Attorney Brian P. Callaghan relied on websites using "pao doce" and "wraps" generically for various bakery products [Apparently, Pao Doce is a Portuguese holiday bread.], analyzing the evidence under the Gould standard. Applicant did not dispute the meanings of "pao doce" and "wrap," but it contended that PAO DOCE WRAPS is a phrase, not a compound word, and therefore that the Gould standard does not apply. It argued that American Fertility requires a reversal because there was no evidence that others use the entire phrase PAO DOCE WRAPS.

The Board found "clear evidence of record" that the relevant public would understand the term PAO DOCE WRAPS to identify a a type of bakery product, "namely, pao doce wraps."

The record shows that “pao doce” is a unitary generic term for a type of bakery product. The record also establishes that the term “wraps” is a generic term for goods within the genus bakery products. Therefore, PAO DOCE WRAPS is the combination of two generic terms joined to create a compound.

***
The record shows that “pao doce” is a unitary generic term for a type of bakery product. The record also establishes that the term “wraps” is a generic term for goods within the genus bakery products. Therefore, PAO DOCE WRAPS is the combination of two generic terms joined to create a compound.

The space between the generic terms “pao doce” and “wraps” does not disqualify this type of proposed mark from the Gould analysis. If anything, the terms appearing as they should in normal usage make it even more common. There is no logical basis upon which to conclude that Gould would have yielded a different result if the mark had been SCREEN WIPE rather than SCREENWIPE.

And so the Board affirmed the refusal.

TTABlog comment: The Board continues to cite Gould and American Fertility, and then to proceed with its own analysis. See, e.g., the recent precedential decision in In Re Wm. B. Coleman Co., 93 USPQ2d 3019 (TTAB 2010) (ELECTRIC CANDLE COMPANY generic for light bulbs). [TTABlogged here].

Here's a question: Is American Fertility honored more in the breach by the TTAB, than in the observance?

Text Copyright John L. Welch 2010.

Test Your TTAB Judge-Ability: Are These Two Fruit Designs Confusingly Similar?

Apple, Inc. opposed an application to register the design mark shown below left, claiming likelihood of confusion with its registered and famous mark shown below right, the marks being for legally identical goods and services. So how would you decide? Apple, Inc. v. Echospin, LLC, Opposition No. 91171592 (June 29, 2010) [not precedential].


The Board began by finding the Apple logo to be a famous mark in light of Opposer's staggering revenue and advertising figures, extensive media coverage, and favorable survey results. It concluded that Apple "has shown significant market exposure, revenue, and overall fame amongst the relevant public."

Of course, because the goods and services involved are legally identical, the Board must presume that they travel in the same channels of trade to the same prospective customers.

And so it all came down to the marks, with Apple entitled to a broad scope of Section 2(d) protection for its famous mark. Moreover, since the goods and services are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

Applicant argued that its mark is an orange, not an apple:

In fact, the evidence . . . . clearly shows that Echospin picked the orange logo to make that very distinction, that Echospin is the no-Apple, the opposite of Apple, an alternative to Apple, and an improvement over Apple.

The Board sagely took this as an admission that Applicant's mark "is shaped like a fruit."

In considering the apple and the orange, the Board noted that a side-by-side comparison is not the appropriate approach. "The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks."

The Board found the marks "quite similar in concept and style, both being simple, abstract representations of fruit, rather than photographic pictures thereof.

Furthermore, opposer’s mark contains a bite in the upper right section of the fruit. Applicant’s mark contains a series of small, white circles in the same area of its fruit, thereby creating a similar commercial impression of a missing piece of the fruit. Finally, opposer’s mark is in the shape of an apple, with a short, detached leaf at the top, pointed to the right. Applicant’s mark is also by admission a fruit, with two short, detached leaves at the top, one of which is quite similar in size and direction to that in opposer’s mark.

Keeping in mind that a famous mark "casts a long shadow which competitors must avoid,"the Board found that the marks have similar connotations and commercial impressions.

And so the Board sustained the opposition.

TTABlog comment: Keep this case in mind the next time someone complains that you are comparing apples to oranges. Anyway, I don't think Applicant's mark looks like an orange. It looks more like an apple, or maybe a butterfly landing on a donut with jimmies.

Text Copyright John L. Welch 2010.

TTAB Sustains 2(d) "TELMEX" Opposition, Finding Applicant Acted in Really Bad Faith

Applicant Andres Guiterrez Estrada, a resident of Mexico, was taken to the woodshed by the Board in this Section 2(d) opposition to registration of the mark AUDITORIO TELMEX for arena and entertainment services [AUDITORIO disclaimed]. The Board found his mark likely to cause confusion with the previously-used mark TELMEX for telephone calling card services. Estrada's bad faith adoption of the mark and his "evasive and disingenuous" discovery responses raised the Board's hackles. Telefonos de Mexico, S.A.B. de C.V. v. Andres Gutierrez Estrada, Opposition No. 91183487 (June 30, 2010) [not precedential].


Opposer, a major telecommunications company based in Mexico, proved priority only with regard to its telephone calling card services. The Board struggled in finding the involved services to be related, but Estrada's bad faith permeated the decision.

Since 1980, Estrada has lived in Jalisco, Mexico, about ten miles from the AUDITORIA TELMEX arena in Guadalajara. That arena is sponsored by Opposer and is one of the "top five entertainment concert arenas in the world." Yet Estrada denied any prior knowledge of Opposer's use of TELMEX. The Board found Estrada's discovery responses to be "disingenuous and lacking in credibility."

Opposer failed to prove the fame of its mark in the USA, but the Board did find it to be a "strong, inherently distinctive mark. Estrada stated that he knew of no one else having the rights to use TELMEX.

As to the services, Opposer established that its telephone cards "display promotions for events and activities opposer sponsors, including sporting and other entertainment events. Consequently, these promotions create an association between opposer's telecommunications services and entertainment services." In addition, the Board noted that Opposer has provided a wide range of telecommunications services in the USA.

Moreover, the 2008 Latin American MTV Music Awards were televised from Opposer's AUDITORIA TELMEX arena into the USA over the Internet. This points to an association between arena services and entertainment services.

[T]his evidence shows that relevant consumers when confronted with the use of the same or similar marks in conjunction with both types of services, arena and entertainment services and telecommunications services would be likely to believe that the services are associated with the same source.

Finally, the Board took judicial notice of the fact that "the licensing of commercial trademarks on 'collateral' products has become a part of everyday life."

The Board found this evidence sufficient to show that "both arena and entertainment services are related to telephone calling card services."

The Board then considered Estrada's bad faith, under the 13 du Pont factor. Noting that it would have found a likelihood of confusion anyway, the Board saw a "significant degree of bad faith." Had this been a close case [It was't? - ed.], bad faith would have tipped the scale.

Applicant’s evasive and disingenuous responses to opposer’s discovery requests, detailed above, provide evidence of Applicant’s continuing bad faith subsequent to his adoption of the mark. It shows not only bad faith but a general lack of respect for the application and opposition process.

And so the Board sustained the opposition.

TTABlog comment: Shouldn't there have been some mention of the likelihood that many Mexican-Americans would know of TelMex and its arena and would associate Estrada's services with that company?

Text Copyright John L. Welch 2010.

Stoller's New "STEALTH" Application Getting Close USPTO Attention

You may recall that in March 2008 an entity called Stoller Pension and Profit Sharing Plan filed U.S. Trademark Application Serial No. 77424372 to register the mark STEALTH for a long list of goods in classes 12, 25, and 28, claiming first use dates of January 1981. That application has run into some serious problems at the PTO, as set out in the latest office action dated July 9th (pdf here). [See prior TTABlog posting here].


Examining Attorney Renee McCray has put several potential 2(d) refusals on the back burner, while focusing on a number of procedural matters.

She raised issues about the application processing fees (a bounced check), the substitute specimens (one is shown above); the relationship between Applicant and Leo Stoller, the date of formation of Applicant, and the name of the individual identified as the registered agent of Applicant (a Bahamian company).

She required new specimens, noting that the latest specimens appear to be "digitally altered images of objects to which the mark has been added," [What do you think? - ed.] Moreover, in light of the wide range of items listed in each class, she required that multiple specimens be submitted for each class (see Rule 2.61).

The Examining Attorney noted that Applicant was formed "on or about 2007," but claims a first use date for all the goods as of January 1981, and so she required an explanation of that discrepancy.

Finally, Ms. McCray raised a question about Applicant's relationship to Leo D. Stoller (perhaps because, as you will remember, Leo lost his rights in the STEALTH marks through an assignment from his bankruptcy trustee (see TTABlog posting here)) :

Applicant indicates that it occupies office space with Leo Stoller, that Leo Stoller does not own any stock/shares or interest in the entity Christopher Stoller Pension & Profit Sharing Plan Ltd, and that the date of formation of Christopher Stoller Pension & Profit Sharing Plan Ltd was on or about 2007. The examining attorney notes that although applicant indicates in its response that it merely occupies office space with Leo Stoller and that “he is NOT associated with this Applicant nor is Central Mfg Co., Stealth Industries, Inc., Sentra Industries, Inc., or any other entity that Leo Stoller was or is associated with,” the email address entered for confirmation of the submission of the filing is “LEO STOLLER,” ldms4@hotmail.com. It thus appears Mr. Stoller has some connection to the applicant by being named to receive confirmation of the filing. *** Applicant must indicate any position(s) held and title(s) used by Leo D. Stoller (e.g. officer, director, partner, managing executive, employee) in respect to the incorporated or otherwise legally formed entity Christopher Stoller Pension and Profit Sharing Plan LLC , and beginning and ending dates of such pension(s).

What do you think are the odds that this application will ever reach publication? What are the odds that any final refusal will be appealed ad nauseam?

Leo D. Stoller
Text Copyright John L. Welch 2010.

Precedential No. 30: TTAB Strikes Counterclaim Allegations Based on Ex Parte Prosecution Errors, but Okays Section 10 Abandonment Claim

Opposer Flash moved under FRCP 12(b)(6) to dismiss Applicant's counterclaim for cancellation of one of Opposer's pleaded registrations. The Board agreed with Flash that several of Applicant's allegations did not state a valid claim for cancellation, but one allegation did. Flash & Partners S.P.A. v. I. E. Manufacturing LLC, 95 USPQ2d 1813 (TTAB 2010) [precedential].


With regard to the challenged registration, the underlying ITU application was filed without a verification. The drawing page was then amended from the mark shown above top to the mark shown above bottom, and the verification was subsequently filed, confirming Applicant's bona fide intent as of the original filing date.

Applicant contended that (1) the underlying application was incomplete and thus void ab initio, and(2) Opposer did not have a bona fide intent to use the original mark, or the mark as amended.

As to (1), the Board pointed out that even an unsigned application is given a filing date. The Examining Attorney must require that applicant submit a verification that relates back to the original filing date. That is what happened here.

The determination of opposer's compliance with the signature requirement was an ex part examination issue addressed during prosecution. This issue, as with similar ex part examination matters, does not form a basis for cancellation.

As to (2), the submission of an amended drawing does not require verification. and the submission does not raise the issue of opposer's bona fide intent. The Examining Attorney's acceptance of the amended drawing is an ex parte decision that necessarily involves the determination of whether the amended mark creates that same commercial impression as the original mark.

In summary, opposer's filing of an amended drawing did not invalidate or otherwise affect its statutory allegation of a bona fide intent to use either the original or the amended mark as of the application filing date.

The Board pointed out that canceling a registration based on a finding of a material alteration "would, in effect, punish opposer for an alleged error on the part of the examining attorney, without allowing opposer the remedies it would have had if the issue had been raised during examination."

We recognize that prosecution of a trademark application involves numerous regulatory requirements, and that whether an applicant has satisfied them often entails some degree of subjective judgment on the part of the examining attorney. Considerations of due process, as well as fairness to parties against whom allegations of examination error are asserted, dictate that such matters be solely a matter for ex parte determination, and not grounds for opposition or cancellation.

Finally, the Board okayed Applicant's allegations that Opposer's underlying application was "twice invalidly assigned under Trademark Act Section 10 prior to the filing of the statement of use."

The assignment of a §1(b) application to an entity that is not the successor to the applicant’s business, before filing an allegation of use, renders the application and any resulting registration void. See The Clorox Co. v. Chem. Bank, 40 USPQ2d 1098 (TTAB 1996).

And so the Board re-set discovery and trial dates and resumed the proceeding.

Text Copyright John L. Welch 2010.

Recommended Reading: Following the Direction of TrafFix: Trade Dress Law and Functionality Revisited

In an article in the latest issue of IDEA (published by Franklin Pierce Law School) entitled "Following the Direction of TrafFix: Trade Dress Law and Functionality Revisited," Professor Amy Cohen of Western New England College School of Law reviews the history of product configuration trade dress law, including its expansion in the 1980s through the Supreme Court's attempt in TrafFix Devices Inc. v. Marketing Displays Inc., 532 U.S. 23, 58 USPQ2d 1001 (2001), to narrow trade dress protection by providing a broader definition of functionality.


Professor Cohen finds that "[d]espite its seeming clarity, many scholars have struggled to make sense of the TrafFix decision, and many courts have struggled to apply it."

The federal courts have split in their interpretations and applications of the TrafFix holding. In particular, the Trademark Trial and Appeal Board (“TTAB”) and its reviewing court, the Federal Circuit Court of Appeals, have essentially continued to apply a definition of functionality that was followed prior to the TrafFix decision, while paying the case lip service.

Professor Cohen argues that, in the last five years, the case law "has continued to be confused and inconsistent." This lack of clarity in the law "is costly to producers. More importantly, it is costly to consumers who will ultimately bear the burden of this litigation in the prices they pay for products." She proposes a rather radical solution to the problem:

Society’s interest in obtaining the best goods at the lowest cost is being hampered by the doctrine of functionality and the potential protection afforded to the design of useful products. Consumers and competitors would be much better off in a world where there was no trade dress protection for product designs. Patent law and copyright law provide adequate incentives to promote the creation of useful and aesthetically pleasing products, and the concern with consumer confusion can be best dealt with by labeling and disclosure requirements.

It is time to return to the approach followed for many years before the twists and turns in trade dress law that began in the 1970s. Congress should amend the Lanham Act to prevent registration and protection of the configuration of useful products.

TTABlog note: for more reading on this issue, see Karl Horlander, "The U.S. Constitutional Limits of Product Configuration Trade Dress Rights," 97 Trademark Reporter 752 (May-June 2007); and Clifford W. Browning, "TrafFix Revisited: Exposing the Design Flaw in the Functionality Doctrine," 94 Trademark Reporter 1059 (September-October 2004) [TTABlogged here].


Text Copyright John L. Welch 2010.

Precedential No. 29: TTAB Dismisses "ECSTASY" Cancellation - Petitioner Proves Standing, But Not Abandonment or Fraud

After clearing the standing hurdle, Petitioner Anosh Toufig experienced the agony of defeat when the Board dismissed his petition for cancellation of a registration for the mark ECSTASY for “parfum, eau de toilette, and cologne.” The Board ruled that Petitioner’s evidence fell short of proving abandonment, and his proof of fraud was nonexistent. Anosh Toufigh v. Persona Parfum, Inc., 95 USPQ2d 1872 (TTAB 2010) [precedential].


Standing: Toufigh contended that his application to register ECSTASY for bath products was refused registration in view of the subject registration. But, the Board observed, "allegations alone do not establish standing." Toufigh failed to submit a copy of the office action, but he did testify that he filed the application. That was enough, said the Board.

[P]rior cases have found standing to be established by the fact that the petitioner's application has been refused registration on the basis of the registrant's registration. *** Nevertheless, evidence of such a refusal is not a requirement to establish standing. Rather, it is sufficient if the circumstances are such that it would be reasonable for a petitioner to believe that the existence of the respondent's registration would damage him, e.g., a reasonable belief that there is a likelihood of confusion between the marks, or that a presence on the register of the respondent's mark may hinder the petitioner in using or registering his mark.

Abandonment: Toufigh attempted to show non-use of the registered mark via his own testimony. He checked the Internet, telephoned the number on the website, and conducted a Google brand search. His conclusion: the mark was not in use.

Toufigh pointed out that Respondent did not respond to document requests. However, his motion to compel had been denied as premature, and he never renewed the motion. The Board could draw no conclusions from Respondent's failure to respond to discovery, nor from the fact that it did not submit any evidence.

In short, Toufigh failed to make a prima facie case that Respondent "has not used its mark for at least three consecutive years." There was no evidence that Toufigh checked respondent's website "over a period of at least three years." In any case, Respondent may have chosen not to market via the Internet. And Toufigh's testimony that he was unaware of a brand called ECSTASY from Respondent was not probative, since Toufigh was not qualified as an expert concerning the fragrance marketplace.

Fraud: Toufigh submitted no evidence that Respondent's mark was not in use on the day it filed its Statement of Use. Ergo, fraud not established.

TTABlog comments: Note that another Respondent has won using the rope-a-dope approach of doing nothing. This seems to be a particularly effective tack when facing abandonment and/or fraud charges. See, for example, the North Face case, TTABlogged here.

Text Copyright John L. Welch 2010.

CAFC Hears Oral Argument in Chippendales' "Cuff & Collar" Appeal

On July 9th, the U.S. Court of Appeals for the Federal Circuit heard oral argument [mp3 here] in the appeal from the TTAB's decision in In re Chippendales USA, Inc., 90 USPQ2d 1535 (TTAB 2009) [precedential]. [TTABlogged here]. A divided TTAB panel affirmed the PTO's refusal to register the "Cuffs & Collar" design mark shown below, finding it not inherently distinctive for "adult entertainment services, namely exotic dancing for women in the nature of live performances." [Applicant Chippendales already owns an incontestable, Section 2(f) registration for the same mark; it was seeking to establish inherent distinctiveness this time around.]


Steve Feingold argued the case before the CAFC. You may recall that Steve took some heat when his client, Chippendales USA, Inc., sought to register its "Cuffs & Collar" mark on the basis of inherent distinctiveness. What was the point, since Chippendales already owned an incontestable, Section 2(f) registration for the same mark? Steve answered his critics here.

Text Copyright John L. Welch 2010.

CAFC Affirms's TTAB's "OUTDOOR KIDS" Cancellation Dismissal

In an eight-page, nonprecedential decision (here), the U.S. Court of Appeals for the Federal Circuit affirmed the TTAB's decision in Outdoor Kids, Inc. v. Parris Manufacturing Co., Inc., Cancellation Nos. 92045687 and 92046943 (March 9, 2009) [not precedential]. [TTABlogged here]. The Board dismissed Outdoor Kids' petition for cancellation of two registrations for the mark KID'S OUTDOORS & Design (shown below) for clothing and toys [KID'S OUTDOORS disclaimed]. Petitioner relied on its registration for the mark OUTDOOR KIDS for outdoor clothing and sporting goods for children [KIDS disclaimed] in alleging likelihood of confusion and dilution. Despite the facts that the goods are legally identical, are deemed to travel in the same trade channels, and are purchased by ordinary consumers exercising ordinary care, the Board found the differences between the marks and the weakness of Petitioner's mark to be sufficient to distinguish the two marks.


On appeal, Outdoor Kids did not challenge the Board's factual findings on the du Pont factors, but instead urged that the Board committed legal error in its weighing of the factors. "Specifically, Outdoor Kids argues that the Board erred in giving little comparative weight to the similarity of the word marks, the similarity of the relevant goods, and the similarity of the trade channels in which the goods traveled." The CAFC disagreed.

[T]he Board determined that the weakness of the OUTDOOR KIDS mark and the distinguishing design characteristics of the KID’S OUTDOOR mark outweighed the other relevant DuPont factors and made confusion of Outdoor Kids’ and Parris’ marks unlikely.

The CAFC found no legal error on the part of the TTAB, and so it affirmed.

Outdoor Kids?(Click on photo for very large picture)
Text and Photograph Copyright John L. Welch 2001, 2010.

Precedential No. 28: Finding Lack of Bona Fide Intent, TTAB Sustains "MITHRIL" Opposition

In this, the third episode in the Registration Quest of Joseph M. Bumb, the Board sustained an opposition to registration of the mark MITHRIL for various jewelry items, finding that Mr. Bumb "lacked the requisite bona fide intention to use the MITHRIL mark in commerce when he filed his intent-to-use application to register that mark." The Saul Zaentz Company dba Tolkien Enterprises v. Joseph M. Bumb, 95 USPQ2d 1723 (TTAB 2010) [precedential].


On May 18th, the Board non-precedentially sustained Opposer's opposition to registration of the marks MIDDLE EARTH JEWELRY and ARAGORN for various jewelry items. In light of Bumb's lack of documentation and his own testimony, the Board found the applications to be void ab initio due to Bumb's lack of bona fide intent to use the marks. [TTABlogged here].

Here, there was no dispute that "mithril" is the name of a mythical precious metal that figures prominently in J.R.R. Tolkien's works. Opposer had standing to oppose because it licensed use of the mark MITHRIL MINIATURES for collectible figurines.

Bumb admitted that, other than his I-T-U application and documents pertaining to his registration of several domain names, he had no documentation "relating to his adoption of or intent to use the MITHRIL mark in commerce." Moreover, Bumb's trial testimony (taken by Opposer) established that "he adopted the MITHRIL mark because of its significance in the Tolkien works" and that his intention as of the filing date was "at most, merely to reserve a right in the term MITHRIL by registering the domain names and filing a trademark application, without the requisite bona fide intent to actually use the mark in commerce."

Q. And did you have any plans for a particular product line?
A. No, not specifically. I mean just the opportunity to create something in the future.

Q. I guess what I’m trying to understand is whether you were going to make a line of jewelry and call it Mithril or LOTR or whether there were going to be two separate lines of jewelry.
A. I had no intent either way.
Q. Okay.
A. At this point I was just applying for the trademark or first the domain and then cover the trademark in lieu of something growing. No intent.

The lack of documentation, coupled with Bumb's testimony, sufficed to establish Opposer's prima facie case of lack of bona fide intent.

It was then Bumb's burden to overcome that prima facie case, but he presented no testimony or other evidence at trial. Bumb's subjective assertions regarding his intent "do not constitute objective evidence of such intent which would rebut opposer's prima facie case."

In his brief, Bumb asserted that a cease-and-desist letter from Opposer caused him to cease development of the MITHRIL line. However, he did not produce a copy of the letter. Opposer acknowledged that it sent a letter, but not until after the subject application was filed. Therefore, the Board reasoned, the letter "does not help to establish that applicant had a bona fide intent to use the mark when he filed the application."

And so the Board sustained the opposition under Section 1(b) on the ground of lack of bona fide intent, and it concluded that the application is void ab initio.

TTABlog comment: Why was this decision deemed precedential, while the MIDDLE EARTH JEWELRY and ARAGORN decision was not?

Text Copyright John L. Welch 2010.

CAFC Affirms TTAB's Mere Descriptiveness Ruling in "E-LEX" Case

Yesterday, the U.S. Court of Appeals for the Federal Circuit affirmed per curiam the Board's decision in In re The Lex Group VA, Serial No. 76665046 (August 28, 2009) [not precedential]. [TTABlogged here]. (CAFC Rule 36 affirmance here). Mp3 of oral Argument here.


TTABlog comment: Apparently, Mr. Dickens, the lex is not a ass.

Note that all the comments on the original posting thought the TTAB's decision was wrong.

Text Copyright John L. Welch 2010.

Precedential No. 27: Finding Computer Software and Services Related, TTAB Affirms 2(d) "ACTIVECARE" Refusal

In this questionably precedential decision, the Board affirmed a Section 2(d) refusal to register the mark ACTIVECARE for "software, namely, a software feature that automatically analyzes and repairs or optimizes performance settings for personal computers, sold as a component of personal computer performance and maintenance utility software," finding it likely to cause confusion with the registered mark ACTIVE CARE for technical support services namely, troubleshooting of electronic communications computer hardware and software problems by telephone, by e-mail, by fax and on-site; installation, maintenance and updating of electronic communications computer software" [CARE disclaimed]. In re Iolo Technologies, LLC, 95 USPQ2d 1498 (TTAB 2010) [precedential].


Applicant Iolo did not contest that the marks are substantially identical. The Board noted, once again, that "the more similar the marks at issue, the less similar the goods or services need to be for the Board to find a likelihood of confusion."

The Board agreed with Iolo that there is no per se rule that computer-related goods and services are related, but that did Applicant little good.

Here, based on the identifications themselves, we find that applicant offers a product that is complementary in function and purpose to the software installation, maintenance and updating services offered by registrant. Specifically, an optimizing software feature would be among the software tools that a computer technician might use when installing, maintaining or updating electronic communications computer software.

Examining Attorney Karen P. Severson submitted copies of use-based, third-party registrations covering goods and services of the type listed in both the application and the cited registration. She also submitted evidence from several websites to show that various types of optimization software like that identified by applicant and technical support services recited in the cited registration are advertised to consumers under the same mark.

Regarding the channels of trade, there is nothing that prevents registrant’s technical support services for troubleshooting of computer hardware and software problems from being promoted in the same channels of trade for, and to the same classes of consumers that purchase, applicant’s performance optimization software. Furthermore, since computer owners are the likely purchasers of both registrant’s services and applicant’s products, the target consumers of both registrant of both registrant and applicant are the same.

Iolo pressed the consumer sophistication factor, but offered no evidence in support. Moreover, as Board precedent dictates, "even sophisticated buyers are not immune from source confusion where, as here, the marks are substantially identical


TTABlog comment: Any thoughts as to why this decision is precedential?

Text Copyright John L. Welch 2010.

TTAB Posts July 2010 Hearing Schedule

The Trademark Trial and Appeal Board has scheduled eleven (11) hearings for the month of July, as listed below. The hearings will be held in the East Wing of the Madison Building, in Alexandria, Virginia. [The hearing schedule and other details regarding attendance may be found at the TTAB website.] Briefs and other papers for these cases may be found at TTABVUE via the links provided.


July 13 - 10 AM: Rocket Trademarks Pty Ltd. v. Phard S.p.A., Opposition No. 91172486 [Section 2(d) opposition to ZU ELEMENTS (Stylized) for various paper goods, leather goods, and clothing, in light of various registered and common law marks comprising or containing the mark ELEMENTS for identical goods].


July 13- 2 PM: In re Roc USA, LLC , Serial No. 77044525 [refusal to register the mark ROC USA for business management consulting services and for educational services in the field of community development, on the ground of geographical descriptiveness under Section 2(e)(2)].


July 15 - 2 PM: In re DG Fastchannel, Inc., Serial No. 77136602 [Section 2(d) refusal to register the mark HD NOW for "Broadcasting services, namely, transmission of video advertising media and metadata via proprietary media management systems" in view of the identical mark registered for "radio broadcasting services of digital signals"].


July 20 - 11 AM: SmithKline Beecham Corporation v. OmniSource DDS, LLC, Opposition No. 91178539 [Opposition to registration of AQUAJETT for "Dental instruments, namely, oral irrigators" on the grounds of lack of bona fide intent and likelihood of confusion with the mark AQUAFRESH and formatives thereof, for toothpaste and toothbrushes].


July 20 - 2 PM: Sarnafil, Inc. v. Henry L. Hamlin, III, Opposition No. 91163904 [Section 2(d) opposition to registration of SMARTROOF.COM & Design for "roofing installation" in view of the registered mark ENERGYSMART ROOF for roof membranes for low-slope and steep-slope roofing applications"].


July 21 - 2 PM: In re American Infrastructure, Inc., Serial Nos. 77044841, 77044834, and 77044836 [Refusal to register the mark AMERICAN INFRASTRUCTURE &Design for "Construction consultation; construction management; construction planning; consultation services for the construction of water and wastewater plants; construction of water and wastewater plants; laying and construction of pipelines; road and highway construction; road and highway paving services; bridge construction" in view of Applicant's refusal to disclaim the geographically descriptive term AMERICAN INFRASTRUCTURE].


July 22 - 11 AM: In re AmQuip Crane Rental, LLC, Serial No. 77331303 [Appeal from requirement of disclaimer of CRANE in the mark AMQUIP THE CRANE PEOPLE & Design for crane rental and leasing services].


July 22 - 11:30 AM: In Corporate Fuel Partners, LLC, Serial No. 78705686 [Appeal from disclaimer requirement of CORPORATE in the mark CORPORATE FUEL for business management and advisory services and financial services ].

July 22 - 2 PM: Societe Produits de Nestle S.A. v. Midwestern Pet Foods, Inc ., Opposition No. 91163853 [Section 2(d) opposition to registration of WAGGIN' STRIPS for pet food and edible pet treats in view of the registered mark BEGGIN' STRIPS for dog snacks].



July 27 - 10 AM: In re Diane R. Gunter, Serial No. 77227513 [Section 2(d) refusal of WISH YOU WERE HERE for "underwear" over the registered mark WISH YOU WERE HERE, LOVE JETSY for "clothing, namely, women’s, dresses, shirts, skirts and apparel"].


July 27 - 2 PM: Le Cordon Bleu B.V. v. Muffman Products, LLC, Opposition No. 91155779 [Opposition to registration of CORD ON BLUE for "General purpose non-metal storage units for use in hanging cards, namely, stretch cords, electrical cords and bungie cords" on the grounds of likelihood of confusion with and dilution of the registered mark CORDON BLEU and variations thereof for culinary educational services and printed materials pertaining to cuisine].


Text Copyright John L. Welch 2010.

Precedential No. 26: "OSMODEX" Specimens Fail to Show Use as Service Mark, TTAB Rules

In yet another specimen-of-use case, this one precedential, the Board affirmed a refusal to register the mark OSMODEX for "consultation services regarding controlled release drug delivery technology for pharmaceutical companies," on the ground that the mark does not function as a service mark. The Board agreed with Examining Attorney Lourdes D. Ayala that, although Applicant's specimens include the word OSMODEX "and purportedly make reference to applicant's consulting services, ... the mark would be perceived by the relevant public as identifying only applicant's drug delivery technology, and not as identifying consulting services." In re Osmotica Holdings Corporation, 96 USPQ2d 1669 (TTAB 2010) [precedential].

(click on photo for larger view)
The Examining Attorney maintained that the mark OSMOTICA is used in connection with the only reference to "consulting" and that OSMODEX merely refers to one of Applicant's many technologies. Applicant feebly argued to the contrary. The Board observed that:

It is not enough that the mark and a reference to the services both appear in the same specimen. In order to create the required “direct association,” the specimen must not only contain a reference to the service, but also the mark must be used on the specimen to identify the service and its source. See In re Aerospace Optics Inc., 78 USPQ2d, 1861, 1862 (TTAB 2006).

The Board found that OSMODEX is clearly used to identify Applicant's technologies. The question, then, was whether it also identified the recited services. The answer was no.

The statement referenced by applicant on the web page, as well as the web page statement that we highlighted in the web page reproduction, are at most oblique references to consulting services and would only be so construed if the reader already knew that applicant offered such services. Certainly, this is not the required direct association between OSMODEX and applicant’s consulting services.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2010.

Precedential No. 25: "CLOTHING FACTS" Not Functioning as a Trademark, Says TTAB

In a precedential ruling, the Board affirmed a refusal to register the mark Clothing Facts in standard character form for various clothing items, on the ground that the mark as appearing on the specimens of use functions as informational matter and not as a source-identifier. In re T.S. Designs, Inc., 96 USPQ2d 1669 (TTAB 2010) [precedential].

Applicant's original specimen
Examining Attorney Benjamin U. Okeke agreed with Applicant T.S. Designs that the "Clothing Facts" label "is reminiscent of the 'Nutrition Facts' label required for food products by the United States Food and Drug Administration (USFDA)."


The Board appreciated "that this imagery involves a humorous play on the USFDA's ubiquitous nutrition labeling device and is designed to communicate applicant's commitment to social justice and environmental stewardship."

However, in this context, we agree with the Trademark Examining Attorney that prospective consumers will view the designation Clothing Facts, as used on the entire label device, as informational matter, not as a source identifier for the shirts. The likelihood that consumers will so perceive these words on the label is enhanced because the label contains two clear source identifiers, namely "tsdesigns.com" and "printing t-shirts for good," the latter specifically bearing the informal "TM" designation, while the phrase Clothing Facts does not.

And so the Board affirmed the refusal to register.

TTABlog comment: Judge Bucher, who penned the recent CELLAR 360 decision (here), takes a more consumer-oriented, qualitative view of trademark specimens -- i.e., what would the consumer perceive? -- rather than a technical approach that emphasizes the size of the type, the placement of the term, the nearness on the page to a picture of the product, etc. Am I making sense?

Here, maybe the solution for Applicant is to put a "TM" next to Clothing Facts?

Text Copyright John L. Welch 2010.