Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA900322 Filing date: 06/01/2018 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92068416 Party Defendant AUGHTS LLC Correspondence AUGHTS LLC Address 6226 Roudsby Lane Alexandria, VA 22315 UNITED STATES Email: [email protected] Submission Answer Filer's Name Jesus D. Salang Filer's email [email protected] Signature /Jesus D. Salang/ Date 06/01/2018 Attachments AmtgardDefense.pdf(683221 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Amtgard International, Cancellation No. 92068416 Petitioner

v. Reg. No. 5215471 AUGHTS LLC Amtgard Respondent

ANSWER TO PETITION TO CANCEL The following is the Answer of AUGHTS LLC (hereinafter “Registrant” or “Respondent”) to the Petition to Cancel filed on April 25, 2018 and assigned Cancellation No. 92068416. Registrant here by responds, solely for the purpose of this proceeding, to each of the grounds set forth in the Petition to Cancel, as follows:

1. SUMMARY: AUGHTS LLC filed for federal trademark protection of the Amtgard® mark in February 2016 and was granted in May 2018. AUGHTS LLC has spent hundreds of thousands of hours for value and investment to use the mark in commerce with gamebooks, board game development, research and development. Now comes, Amtgard International, who knew in February 2016 of AUGHTS LLC’s registered trademark filing and yet did not file timely paperwork with the USPTO.

2. Amtgard International formed in , in October 2015 is not entitled to the trademark as it is an artificial, nonorganic organization formed to perpetuate tax evasion on the false pretense of owning intellectual property, bullying other nonprofit organizations, and falsely claiming nonprofit organization status. Amtgard Kingdom of Burning Lands falsely claimed to be a 501(c)(3) corporation when it lost status and never regained it on June 2010. It continued to perpetuate charity fraud up to July 2015. In October 2015, Amtgard International was formed in Colorado under false pretense of transferring of said intellectual property from to Colorado, which cannot be done without the U.S. Patent and Trademark Office. Although some principal officers were the same that committed gross tax evasion from June 2010 to current period, Amtgard International is not the same company, by their own admission, as to Amtgard Kingdom of the Burning Lands. Neither organization were able to secure nor keep their own intellectual property before the use and filing of AUGHTS LLC’s trademark of Amtgard.

3. AUGHTS LLC was founded in 2001 and began manufacture and sale into commerce a game book from 2012 to current date as a compendium of other games. AUGHTS ramped up usage of the mark in 2013 and helped promoted Amtgard through parades and festivals in the DMV area – particularly Alexandria City. It began using the mark in commerce. AUGHTS LLC successfully filed and registered for the federal trademark in April 2016. AUGHTS LLC sponsored events and role game boards. AUGHTS published amtgard.co website in 2017 as pre-publicity to selling a new roleplay board game built on and to promote Amtgard live action role play gaming.

4. Amtgard International operates like a personality cult and gang. Amtgard International has used social media to bully and browbeat free-to-play live action role players into submission – either by harassment, threat to ostracize by “banning” and other bully tactics. Amtgard International falsely and knowingly claimed to have the federal trademark and copyright, when in fact it was well published and known that AUGHTS LLC already held the federal trademark and copyright. Further, Amtgard International purposefully pushed and bullied organizations nationally with a contract that falsely claimed ownership of the federal trademark and copyright. Videos and evidence shall be provided to the Board.

5. Defenses – AUGHTS LLC averts and claims the following equitable, legal, and affirmative defenses, including but not limited to the Lanham Act, Madrid Convention, & Federal Rules of Civil Procedure:

6. Petitioner has no standing. Amtgard International (AI) has no standing nor prior use in commerce before AUGHTS LLC usage and filing in February 2016. Amtgard International, a third party intermeddler, was formed in secret on October 2015. Thus, Amtgard International, did not have prior use in commerce before 2013 nor it at the filing of the mark in February 2016. Amtgard International cannot take succession of marks from a defunct company called Amtgard Kingdom of Burning Lands, which expired in June 2010. Amtgard International is not engaged in the class for which AUGHTS LLC sells Amtgard board games. Amtgard International has never sold board games. Further information shall be provided the Board.

7. Petitioner has not filed a timely cancellation notice, hence by estopple and laches cannot file suit. Amtgard International had actual and constructive notice of AUGHTS LLC filing of the federally registered mark in February 2016 and yet did not file timely opposition nor cancellation of said mark until April 25, 2018. Therefore, Amtgard International is estopped per laches. Amtgard International sat on its rights for over two years, while AUGHTS LLC labored and invested financially into developing the board games. AUGHTS LLC has used the mark in commerce five (5) years prior to Petitioner’s claim and before their very existence and suit brought forth in 2018. AUGHTS LLC has substantially invested in development of a board game with software and cloud extensions for augmented reality.

8. There are two categories of prejudice, loss of evidence or memory of witnesses due to delay and (2) economic prejudice. Typically, the party asserting prejudice shows continued use of the mark and continued investment of the trademark, increasing business value and goodwill during the time the other party remained silent. AUGHTS LLC has made significant investments in its websites amtgard.co and amtgardia.com – which clearly states our position and upcoming products.

9. There is no in likelihood of confusion since live action role play is a generic event and experience that no reasonable person could confuse with a board game. Further proof can be provided. If the Petitioner asserts grounds allege genericness, merely descriptiveness, fraud, or abandonment – AUGHTS LLC will provide proof otherwise including but not limited to letters and open letters stating its protection of other groups who used the mark prior 2013 for nonprofit purposes. AUGHTS LLC asserts that claim is the mark is neither deceptive nor deceptively misdescriptive, as it is clearly for game board class and future augmented reality software, neither of which any prior permutations of groups claiming to use Amtgard have done before. Further information shall be provided the Board.

10. Petitioner has unclean hands. Petitioner on Facebook, YouTube and other electronic media willfully deceived the player population with claims that state law trumps Federal laws. Petitioner without solicitation license elicited collection of funds fraudulently across state lines and national borders. Further information shall be provided the Board.

11. Petitioner acquiesced by asking AUGHTS LLC assistance with ownership of the trademark with Twitter in 2016. Petitioner waited over two years before filing the cancellation of the mark. Further information shall be provided the Board. Petitioner is estopped by license and contract. AUGHTS LLC was willing to help Petitioner, however Petitioner sent an inflammatory letter with “penises and scrotums” in the watermark and letterhead. Had Petitioner been less bellicose and unprofessional, this outcome may have yet be avoided.

12. Petitioner made mistakes as promulgated on their so called “contract” which knowingly and fraudulently made claims of owing the federal trademark and copyright. Petitioner coerced “Kingdoms” and other parties into a fraudulent contract without real consideration of actually owning intellectual property. Petitioner willfully and wantonly bullied people on social media with threats and banishment from games. Petitioner violated state and federal laws on cyberbullying. Further information shall be provided the Board.

13. Petitioner knows of prior judgment of the Trademark Office in favor of AUGHTS LLC in granting trademark. Petitioner did nothing for over two years. Further information shall be provided the Board.

14. Petitioner’s assertion of the mark is vague, overly broad is not in stream of commerce. Petitioner never used the mark in stream of commerce, particularly and specifically in the area of board games. Further information shall be provided the Board.

15. Petitioner is involved in a tax fraud and charity fraud scheme to defraud the federal and state government by erroneously reporting IRS 990 filings. Petitioner with a t-shirt sales and donation drive did not account for over $15,000 in raised for legal fees. Further information shall be provided the Board.

16. Prior registration of Trademark and Copyright stops AI from assert claims. AUGHTS LLC will assert Moorehouse defense and under Madrid protocols. Further information shall be provided the Board.

17. Petitioner and others before abandoned the mark, if it is to believe they are actually the same organization, which they are not, they tried and failed for over 35 years. Further information shall be provided the Board.

18. Amtgard has become a generic term in circles of live action role play, but AUGHTS is distinct in board games and software. Further information shall be provided the Board.

19. Third parties have used similar marks for similar goods, thus the mark is weak and entitled to a narrow scope of protection. There were seven (7) other nonprofit organizations, “Kingdoms,” and another nine unincorporated organizations, using the mark prior the October 2015 creation of Amtgard International. Further information shall be provided to the Board.

20. Petitioner has made mistakes in various assertions and fraudulent claims on fact in social media, particularly but not limited to Facebook and Youtube. Petitioner has prior board members who belonged to a defunct organization, Amtgard of Burning Lands, have falsely claimed to be a 501(c)(3) organization when its determination with the IRS had expired in June 2010. Defense shall show how this pattern of deception in the community has caused confusion and their coercion of various groups have led to dilution and genericness of the mark outside the class. Further information shall be provided the to Board.

21. Petitioner does not have priority to the mark based on their creation in October 2015. AUGHTS LLC has the mark in commerce over years before Petitioner even existed. AUGHTS LLC sponsored advertising campaigns in events and parades using the mark in public and in media in the streets of the City of Alexandria, during the Scottish Christmas Parade for years before Petitioner even existed as an entity. AUGHTS LLC sponsored events to market the mark in national conventions and comic-con events. Further information shall be provided to the Board.

22. Defense of material prejudice to Respondent. AUGHTS LLC has spent substantially in cards, flyers, and business expense marketing itself and the game and will be materially prejudiced and economically harmed should prior granted registration be cancelled, while Petitioner remained silent to the Board. The furtherance of time of over two years is unfairly prejudicial to memory and witness recollection loss of said evidence. Further information shall be provided to the Board.

23. Defense of functionality. AUGHTS LLC trademarked the name for a board game, not a live action role play (LARP). The class is completely different from what a board game, table top system from an intangible live action role play event – which is not a product nor traded item. Further information shall be provided to the Board.

24. Defense of absence of likelihood of confusion. Amtgard was used by other groups who operated independently from each other. Amtgard the board game cannot be confused with a LARP. The Petitioner plays a common game that is already played by many existing LARPS in public parks that use the mark with no issue for decades and Respondent uses a board game with dice or computer mice done in private locations and homes. There is no room for confusion. Further information shall be provided to the Board.

25. Defense of lack of secondary meaning. Further information shall be provided to the Board.

26. Defense of development of secondary meaning. Further information shall be provided to the Board.

27. Defense of claim preclusion. Further information shall be provided to the Board.

28. Defense of issue preclusion. Further information shall be provided to the Board.

29. Defense of contractual estoppel. Further information shall be provided to the Board.

30. Defense of license estoppel. Request of Amtgard trademark use was granted by AUGHTS LLC for limited basis by Amtgard International in assistance of Twitter and other social media. Now AI claims and reneges on its request of AUGHTS LLC. Further information shall be provided the Board.

31. Finally, AUGHTS LLC reserves the right to file a counterclaim in a separate federal action against AI and others for trademark violation and other damages, including but not limited to other trademark applications. Thank you for this Board’s service and kind consideration.

32. AUGHTS LLC, in conjunction with licensee, a 501(c)(3) nonprofit Mid-Atlantic Games, reserves the right to sue Amtgard International, for unlawful interference by Amtgard International’s lawyer, a member of the Colorado Bar, in giving unsolicited legal advice about law to a Virginia organization. Further, we claim and will prove that Amtgard International unlawfully influenced a former nonprofit organization board member who was terminated in filing near 300 patently false State Corporation Commission filings in Virginia, while 1) not an officer nor director or the board, and 2) not of resident in Virginia.

33. Here are the specific responses to petitioner’s allegations, many which are patently false:

33-1. “Petitioner is a membership organization and recreation society dedicated to providing live action roleplaying and combat games focused on sword and sorcery, medieval and ancient genres.” Petitioner is masquerading around as a recreation society as a nonprofit, yet is actually controlled by Brennen Meiners of the same address per for profit organization called “Warlord Sports, Inc.”

RESPONSE: It is a sole proprietorship which has coopted and conducted a hostile takeover of Amtgard International, Inc. originally formed as a nonprofit in October 2015 per the Colorado nonprofit registration. By Petitioner’s own statement, this society has nothing to the registered trademark granted to AUGHTS LLC with Amtgard as a board game and used over five (5) years in the course of trade by AUGHTS LLC in Alexandria, Virginia, USA.

33-2. “Petitioner has used the trademark AMTGARD (the “AMTGARD Mark”) in interstate commerce in the United States continuously since at least as early as 1991 in connection with the provision, sale, marketing, advertising and promotion of live action roleplaying games and society membership services relating thereto. Representative examples of materials showing Petitioner’s use of the AMTGARD Mark can be found at http://www.AmtGard.com.”

RESPONSE: Petitioner formed independently in Colorado is not the same organization as the defunct original nonprofit organization that expired in June 2010 for failing to file timely and accurate state filings and IRS 990 forms. It was called the Kingdom of the Burning Lands in Texas. It is not a successor organization despite claims by Amtgard International. A dead company cannot give birth to a live one in another state, especially one that disclaims its own negligence and misrepresentation. The true organization sponsored and licensed by AUGHTS LLC can be found at http://amtgard.co and http://amtgardia.com which explains AUGHTS LLC allowance of organization other use for those nonprofit organizations legally operating prior to AUCGHTS LLC supplement registry usage since 2013.

33-3. “As a result of its widespread, continuous, and exclusive use of the AMTGARD Mark to identify its services and Petitioner as their source, Petitioner owns valid and subsisting federal statutory and common law rights to the AMTGARD Mark.”

RESPONSE: Amtgard International, artificially created in October 2015, after the continuous usage of AUGHTS LLC since 2012, gained a five year presumption of use. AUGHTS LLC confronted the other organizations of the fraudulent nature of the expired Kingdom of the Burning Lands and lack of intellectual property – see letter to the community explaining the truth about Amtgard. See http://amtgardia.com/assets/AmtgardJuneLetter2017_final.pdf - Simply put, Amtgard International formed only in October 2015 in Colorado is not the same organization that purports to be using the mark since 1991.

33-4. “Petitioner's AMTGARD Mark is distinctive to both the consuming public and Petitioner's trade.”

RESPONSE: There are over 300 groups using Amtgard mark for live action role play, only AUGHTS LLC is using it for the class of board games. Petitioner is not using the mark for trade but respondent is.

33-5. “Petitioner has expended substantial time, money, and resources marketing, advertising, and promoting the services provided under the AMTGARD Mark.”

RESPONSE: As a matter of public record, 9in the IRS 990 filings of Amtgard International since its inception as a 501(c)(3) in October 2015, it has filed nearly zero (0) receipts in income, yet it claims to have invested “substantial time, money and resources.” Simply their claim is false if not fraudulent. In contrast, the Petitioner, a for profit company, can show substantial investment in time, hours, receipts in promoting Amtgard in the City of Alexandria, Virginia, e.g. sponsoring Scottish Christmas Parade festivals, promotions at national board gaming conventions, the Virginia Renaissance Fair, and comic- con conventions like Katsucon in National Harbor, .

33-6. “Upon information and belief, Respondent, AUGHTS LLC, with an address at 6226 Roudsby Lane, Alexandria, Virginia 22315, and an email address at [email protected], , is the current listed owner of Registration No. 5215471 for the mark AMTGARD in connection with a "role playing board game" in International Class 028. That trademark registration, based on an application filed on February 22, 2016, was issued on May 30, 2017 and bears a first-use date of February 2, 2012.”

RESPONSE: Respondent published and copyrighted a series of works earlier and registered it with the Library of Congress as a series for “Amtgard” – which by its own right as a copyright of series can be trademarked under Federal law.

33-7. “Petitioner's AMTGARD Mark has priority over Respondent's mark because Petitioner's first-use date for the AMTGARD Mark predate the filing date of Respondent's application for Registration No. 5215471 or any other date on which the Respondent may rely for purposes of priority.”

RESPONSE: Petitioner’s claim rests on the falsehood that it is the same company that is Kingdom of Burning Lands, of Texas that expired and not renewed in June 2010. However, public Colorado record clearly shows that Amtgard International was only formed in October 2015, while AUGHTS LLC which has existed as a Virginia company since 2001 has continued an unbroken existence to the current period used the mark as early as 2012 and heavily started investments in 2013 as it used Amtgard in trade of board games and promotion in the greater , DC, metropolitan area. The alleged use petitioner’s “gamebook” by the prior company, if it is too be believed, itself was actually an infringement of a game book made by the Wargame company based in the DC area since 1977.

33-8. “Respondent's mark AMTGARD is identical to Petitioner’s AMTGARD Mark.”

RESPONSE: If petitioner is so adamant that it is the same organization, which it is not, why did it not file for federal trademark protection in the last 35 years of its purported existence? It is an illogical and irrational argument, that points to the fact that despite Amtgard International’s claim of identical mark and priority, it is neither of which is true. Amtgard board game is completely distinct and has used it for over five years as the same AUGHTS LLC entity, unlike Amtgard International formed only in October 2015 in Colorado.

33-9. “The goods covered by Respondent's Trademark Registration No. 5215471 are related to services provided by Petitioner under its AMTGARD Mark.”

RESPONSE: The class granted by the USPTO is for board games and not for live action activities, which there is no international nor corresponding national class. The petitioner’s assertion is plainly wrong and misguided. Clearly a table top game cannot be confused by live action activities on a field.

33-10. “Respondent's Registration No. 5215471 is unrestricted as to consumers and trade channels. As such, it is presumed that Respondent's goods identified in the challenged registration are sold to all ordinary consumers of goods and services, including consumers of Petitioner's services, and travel in all ordinary trade channels, including the trade channels through which Petitioner provides its services under its AMTGARD Mark.”

RESPONSE: This is another erroneous statement. Respondent filed under supplemental register and clearly stated that so long as its mark was not challenged it permitted duly formed nonprofit organization prior to use in 2013, use of the mark without harassment. Petitioner is not selling board games. Respondent is selling board games. Petitioner closest “good” was a shirt campaign against Respondent in bad faith after misrepresenting its intellectual property and smearing Respondent on Facebook and other social media with fake news.

11. “FIRST GROUND FOR CANCELLATION -- LIKELIHOOD OF CONFUSION. Respondent's registration should be cancelled because it consists of or comprises a mark which so resembles Petitioner's previously used AMTGARD Mark as to be likely, when used in connection with Respondent's goods, to cause confusion, mistake, or deception within the meaning of 15 U.S.C. § 1052(d), and to cause damage to Petitioner thereby.”

RESPONSE: Based on the fact that Respondent had clear and continuous use of the mark for over five years, even before the existence of Petitioner, formed less than only three years ago in Colorado on October 2015, the statement claimed is actually the other way around. Per 15 U.S.C. 1052(d), it is Petitioner’s subsequence use of the mark after the use of Respondent since 2012 with the same legal entity, AUGHTS LLC formed in 2001 in Virginia, that is the true harmed party.

"[A] proper genericness inquiry focuses on the description of [goods or] services set forth in the [application or] certificate of registration." Magic Wand Inc. v. RDB Inc., 940 F. d638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991). Petitioner’s broad claim of confusion stems to stating that the term Amtgard is the same goods and services, whereas Respondent is clearly focused on board games not live action activities which do not have defined produce nor service set forth. Petitioner’s description of “sorcery” and “fantasy” is overboard and generic, which fails to state where boundaries are placed.

“If the relevant term is merely descriptive, but not generic, the mark may be registered on the Principal Register with a proper showing of acquired distinctiveness under §2(f), or on the Supplemental Register, if appropriate.” See Express Mortgage Brokers Inc. v. Simpson Mortgage Inc., 31 USPQ2d 1371 (E.D. Mich. 1994). Here Respondent filed successfully under the Supplemental Register, not the Principal Register. Therefore, Petitioner’s claims are exaggerated and no such threat to their class exist nor cause confusion with a board game. Petitioner has no goods with the mark, therefore no such confusion can exist as Respondent’s good are a board game and a card game as best.

WHEREFORE, Registrant requests dismissal of the Petition to Cancel and such other and further relief as may be just and proper.

Humbly responded, on May 31st, 2018, by

/JESUS DIOKNO SALANG/

Law Firm of Jesus D. Salang, Esq. ATTORNEY FOR RESPONDENT

AUGHTS LLC (a VIRGINIA COMPANY) 6226 Roudsby Lane Alexandria, Virginia 22315 Email: [email protected] Mobile: +1 (202) 650 3943