Friday, July 16, 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,” 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.


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