Petition for Cancellation Petitioner Information

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA1065227 Filing date: 06/30/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Petition for Cancellation

Notice is hereby given that the following party has filed a petition to cancel the registration indicated below. Petitioner Information

Name Trident, Inc. d/b/a/ Atlas Games Entity Corporation Citizenship Minnesota Address 202 3rd Ave Proctor, MN 55810 UNITED STATES

Attorney informa- Eugene Beliy tion Azora Law 15600 NE 8th St. Ste B1-178 Bellevue, WA 98008 UNITED STATES [email protected] 2069106574

Registration Subject to Cancellation

Registration No. 1693244 Registration date 06/09/1992 Registrant INDEX CORPORATION 4-1-1 TAISHIDO, SETAGAYA-KU TOKYO, 154-0004 JAPAN

Goods/Services Subject to Cancellation

Class 028. First Use: 1990/09/10 First Use In Commerce: 1990/09/10 All goods and services in the class are subject to cancellation, namely: computer game cartridges, video game cartridges, [ and coin operated video gamemachines ] Grounds for Cancellation

Abandonment Trademark Act Section 14(3) Fraud on the USPTO Trademark Act Section 14(3); In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009)

Attachments Petition to Cancel - ATLUS.pdf(457523 bytes )

Signature /EB/ Name Eugene Beliy Date 06/30/2020

1 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE 2 BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD 3

4 ) Trident, Inc. // DBA Atlas Games ) Cancellation No. ______5 Petitioner, ) ) 6 ) v. ) Mark: ATLUS 7 ) ) Registration No. 1693244 8 Index Corporation ) Respondent. ) 9 )

10 PETITION TO CANCEL 11 Petitioner, Trident, Inc. d/b/a Atlas Games (“Petitioner”) is a corporation organized in 12 the state of Minnesota with an address of 202 3rd Ave, Proctor, Minnesota 55810. Petitioner 13 believes it is being damaged by Registration No. 1693244 for ATLUS (the “Registration”) 14 with respect to “computer game cartridges, video game cartridges, [ and coin operated video

15 game machines ]” in International Class (“IC”) 028, and hereby petitions to cancel the

16 registration of said mark.

17 As grounds in support for this Cancellation, Petitioner alleges the following: 18 1. On information and belief, the listed owner of the Registration is Index Corporation with 19 an address of 4-1-1 Taishido, Setagaya-Ku Tokyo, Japan 154-0004 (“Respondent”). 20 2. Petitioner is the owner of U.S. Application Serial No. 88210212, filed on November 29,

21 2018, for the mark ATLAS GAMES for “tabletop games” in IC 028 (the “Application”).

22 3. On January 08, 2020, the United States Patent and Trademark Office issued a Final

23 Office Action for Petitioner’s Application stating, inter alia, registration of the applied- for mark is refused because of a likelihood of confusion with the Registration under 24 Trademark Act Section 2(d), 15 U.S.C.A. § 1052(d); see TMEP §§ 1207.01 et seq. 25

PETITION TO CANCEL Page 1 of 8

2 4. Respondent’s Registration causes injury to Petitioner and Petitioner’s rights in its

3 ATLAS GAMES mark.

4 REGISTRATION’S OWNERSHIP AND PROSECUTION HISTORY 5 5. On May 07, 1990, Asuka Technologies, Inc. (“Asuka”), filed an application to register 6 ATLUS, the mark that would become the Registration (the “Mark”), based on a section 7 1(a) filing basis claiming use in commerce as early as September 1990. 8 6. On May 28, 1991, Asuka entered into an assignment agreement with Atlus Software, Inc.

9 (“Atlus Software”) with respect to the interest and goodwill in the Mark. 10 7. No supporting documents are available on the USPTO database with respect to the

11 assignment between Asuka and Atlus Software. 8. On June 09, 1992, the Registration was issued, naming Asuka as the owner of the mark. 12 9. On May 31, 1996, Atlus Software executed a Certificate of Dissolution, naming Atlus 13 Corporation, Ltd. (“Atlus Corp”) the assignee of the Registration. 14 10. On November 11, 1997, the assignment between Atlus Software and Atlus Corp was 15 recorded with the USPTO. 16 11. No supporting documents are available on the USPTO database with respect to the

17 assignment between Atlus Software and Atlus Corp.

18 12. On May 23, 2002, Atlus Corp filed a Section 8 & 9 renewal of the Registration. 13. On May 30, 2012, Atlus Corp executed a Nunc Pro Tunc Assignment of all right, title, 19 interest, and goodwill in the Mark to Respondent, effective as of May 10, 2010. 20 14. On June 04, 2012, Respondent filed a Section 8 & 9 renewal of the Registration. 21 15. Petitioner now timely files this Petition to Cancel the Registration. 22 23

PETITION TO CANCEL Page 2 of 8

2 COUNT I: LIKELIHOOD OF CONFUSION – PRIORITY OF USE 3 16. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-15, inclusive, 4 as if fully recited herein. 5 17. With respect to Petitioner’s Application, Petitioner claims first use in commerce as early 6 as August 1990, one month before the Registration’s claimed date of first use in 7 commerce. 8 18. Accordingly, Petitioner’s mark claimed under the Application has priority of use in 9 commerce over the Registration and Petitioner is the senior user of either mark at issue.

10 19. As evidenced by the Office Actions issued with respect to the Application,

11 Respondent’s mark so resembles Petitioner’s mark as to be likely, when used in connection with the goods or services of Respondent, to cause confusion, or to cause 12 mistake, or to deceive. 13 COUNT II: ABANDONMENT DUE TO NONUSE – DISSOLUTION OF OWNER 14 15 20. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-19, inclusive,

16 as if fully recited herein. 21. On information and belief, on or around June 2013, Respondent was struggling with 17 major debt and finance issues, including allegations of fraudulent business transactions. 18 22. On information and belief, on June 12, 2013, Respondent’s offices were raided by the 19 Japanese Securities and Exchange Surveillance Commission, which subsequently 20 concluded that Respondent had been artificially inflating video game sales through a

21 process called “window dressing” or “round-trip transactions.” (Exhibit A).

22 23. On information and belief, “window dressing” or “round-trip transactions” is a practice in which assets are sold under an agreement to later be repurchased by the original owner, 23 and is illegal in Japan. 24

PETITION TO CANCEL Page 3 of 8

2 24. On information and belief, on or around June 2013, Respondent filed for civil

3 rehabilitation bankruptcy as a consequence of the Japanese fraud investigation.

4 25. On information and belief, on November 1, 2013, Respondent transferred many of its assets to Sega Dream Corporation. (Exhibit B). 5 26. On information and belief, no right, title, interest, or goodwill in the Registration was 6 ever transferred to Sega Dream Corporation or any other entity. 7 27. On information and belief, Respondent has dissolved as a result of its bankruptcy or 8 acquisition by Sega Dream Corporation.

9 28. On information and belief, the Mark has not been used in commerce by Respondent

10 since at least November 1, 2013. 29. The Mark is not currently being used in interstate commerce by Respondent and 11 Respondent has no objective intent to begin using the Mark in interstate commerce, 12 assuming Respondent even exists. 13 30. Respondent has not used the Mark in bona fide commerce within the last three years and 14 has abandoned any and all rights in the Mark and Registration.

15 COUNT III: ABANDONMENT DUE TO NONUSE – NO USE IN COMMERCE OF 16 CLAIMED GOODS 17 31. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-30, inclusive,

18 as if fully recited herein. 32. In connection with its June 04, 2012 Section 8 & 9 filing, Respondent submitted a 19 specimen of use depicting the packaging of the Nintendo DS game, Shin Megami Tensei 20 Devil Survivor (the “Game”). 21 33. On information and belief, the North America release date of the Game was June 23, 22 2009. 23 34. On information and belief, if the owner in interest of the Mark released other video

24 games in connection with the Mark after June 23, 2009, it was in a format or medium

PETITION TO CANCEL Page 4 of 8

2 other than the specific computer game cartridges, video game cartridges goods claimed

3 in the Registration (the “Claimed Goods”), such as CDs or downloadable software.

4 35. On information and belief, the Mark has not been used in commerce by Respondent or any other entity in connection with the Claimed Goods since at least June 23, 2009. 5 36. On information and belief, Respondent has not offered the Claimed Goods in connection 6 with the Mark in interstate commerce within the last three years. 7 37. The Claimed Goods are not currently being offered by Respondent in connection with 8 the Mark in interstate commerce and Respondent has no objective intent to begin offering

9 the Claimed Goods in connection with the Mark in interstate commerce.

10 38. Respondent has not used the Mark in bona fide commerce in connection with the Claimed Goods within the last three years, and has abandoned any and all rights in the 11 Mark and Registration. 12

13 COUNT IV: RESPONDENT IS NOT THE RIGHTFUL OWNER OF THE REGISTRATION 14

15 39. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-38, inclusive, as if fully recited herein. 16 40. On information and belief, Asuka failed to properly assign all interest and goodwill in 17 the Mark to Atlus Software on May 28, 1991. 18 41. On information and belief, Atlus Software failed to properly assign all interest and 19 goodwill in the Mark to Atlus Corp on May 31, 1996. 20 42. On information and belief, Atlus Corp failed to properly assign all interest and goodwill

21 in the Mark to Respondent on May 30, 2012.

22 43. Respondent is not, and was not at the time of filing its June 04, 2012 Section 8 & 9 filings, the rightful owner of the Mark or Registration. 23

PETITION TO CANCEL Page 5 of 8

1 COUNT V: FRAUD ON THE USPTO FALSE DECLARATION OF USE IN 2 – COMMERCE WITH RESPECT TO THE 2012 SECTION 8 & 9 FILINGS

3 44. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-43, inclusive, 4 as if fully recited herein. 5 45. At the time of filing its June 04, 2012 Section 8 & 9 filings for the Registration, 6 Respondent knowingly misrepresented that it was using the Mark in commerce on or in 7 connection with the Claimed Goods, with the intent to deceive the USPTO.

8 46. Use of a mark in commerce is a prerequisite to continued registration, and

9 misrepresentations as to use in commerce are therefore material. 47. By misrepresenting in its Section 8 & 9 filings that its mark was in use in commerce in 10 connection with the Claimed Goods, knowing at the time that its mark was not in use in 11 commerce in connection with the Claimed Goods, Respondent intended to deceive the 12 USPTO and secure a continued registration granting Respondent rights to which it was 13 not entitled. 14 COUNT VI: FRAUD ON THE USPTO – FALSE DECLARATION OF OWNERSHIP 15 WITH RESPECT TO THE 2012 SECTION 8 & 9 FILINGS

16 48. Petitioner repeats and re-avers every allegation contained in Paragraphs 1-47, inclusive, 17 as if fully recited herein.

18 49. At the time of filing its June 04, 2012 Section 8 & 9 filings for the Registration,

19 Respondent knowingly misrepresented that it was the owner of the Mark, with the intent

20 to deceive the USPTO. 50. Valid ownership of a mark is a prerequisite to continued registration, and 21 misrepresentations as to ownership are therefore material. 22 51. By misrepresenting in its Section 8 & 9 filings that it was the owner of the Mark, 23 knowing at the time that it was not the owner of the Mark, Respondent intended to 24

PETITION TO CANCEL Page 6 of 8

2 deceive the USPTO and secure a continued registration granting Respondent rights to

3 which it was not entitled.

PETITION TO CANCEL Page 7 of 8

1 PRAYER FOR RELIEF 2

3 WHEREFORE, Petitioner prays that this Petition be granted and that Registration No. 1693244

4 be cancelled in its entirety.

5 The filing fee of $400 for this Petition to Cancel is being submitted electronically with this 6 Petition. 7

8 Petitioner hereby appoints Eugene V. Beliy, of the law firm Azora Law, member of the 9 Washington State Bar, as its attorney with full power of substitution and revocation, to 10 prosecute this cancellation proceeding, and the transact all business in the U.S. Patent and

11 Trademark Office in connection herewith.

12 Dated: June 30, 2020 13

14 Respectfully submitted, 15

Eugene V. Beliy 18 Azora Law 15600 NE 8th St., Ste B1-178 19 Bellevue, WA 98008 Tel.: 206-291-4336 20 [email protected] Attorneys for Petitioner 21

PETITION TO CANCEL Page 8 of 8

6/29/2020 Atlus Parent Company Investigated For Fraud, Files For Bankruptcy [Updated]

Jun 27, 2013, 03:04pm EDT Atlus Parent Company Investigated For Fraud, Files For Bankruptcy [Updated]

Erik Kain Senior Contributor Games

This article is more than 7 years old.

Japanese video game developer and publisher Atlus could be in trouble after its parent company is accused of fraud and files for bankruptcy.

Bad news for fans of Japanese roleplaying games in the West.

Atlus, the video game publisher behind titles like Demon's Souls and Shin Megami Tensei, may be in trouble. https://www.forbes.com/sites/erikkain/2013/06/27/atlus-parent-company-investigated-for-fraud-files-for-bankruptcy/#63e58b366341 1/3 6/29/2020 Atlus Parent Company Investigated For Fraud, Files For Bankruptcy [Updated] The publisher's parent company, Index Corporation (also referred to as Index Holdings,) has filed for rehabilitation---a type of bankruptcy---due to 24.5 billion yen in outstanding debt. Index purchased Atlus in 2006.

Seven years later, Index Corporation's (and by extension, Atlus's) troubles go much deeper than outstanding debt or bankruptcy.

The parent company has been accused of fraud, and specifically "window dressing" or inflating sales numbers to create an illusion of corporate stability.

The company's offices were raided after the Japanese Securities and Exchange Surveillance Commission determined the company was inflating sales far beyond their actual numbers and using round-tripping, a practice that that helped inflate the image of Enron as a far more successful company than it actually was, to paint a false picture of the company's financial state.

Round-tripping is an accounting strategy in which an asset is sold to another firm with the agreement that the asset will be repurchased at a later date by the original owner. Firms can use this to give off the appearance of higher sales and revenue generated during a specific financial period.

Not everyone agrees on whether this practice is ethical, and some argue that it can serve a legitimate business need.

However, round-tripping is illegal in Japan.

Investigators also reported uncovering falsified financial documents during the Index raid.

This spells trouble for Atlus, one of the best-loved publishers of Japanese roleplaying games. Atlus titles are often high-quality games with excellent localization for western consumers. The future of the company is now uncertain as investigations into Index Corporation continue.

https://www.forbes.com/sites/erikkain/2013/06/27/atlus-parent-company-investigated-for-fraud-files-for-bankruptcy/#63e58b366341 2/3 6/29/2020 Atlus Parent Company Investigated For Fraud, Files For Bankruptcy [Updated] So far, no reports of criminal charges have been filed, though company president and CEO Yoshimi Ochiai and board chairman Masami Ochiai have both expressed interest in leaving the company.

Whether this could lead to liquidation or the sale of Atlus remains an open question. Hopefully the publisher can ride the storm. Any number of firms would be wise to buy the company and its portfolio, though even if Atlus is purchased intact the future of their games and localization efforts remains uncertain.

I've reached out to both Atlus and Index Corporation for comment.

Atlus has responded via email with this comment from Naoto Hiraoka, President and CEO:

Currently, Index Digital Media, Inc. and the ATLUS brand are unaffected by the Index Corporation proceedings in Japan. We’re carrying on day-to-day activities, business as usual. Shin Megami Tensei IV and Dragon’s Crown are still releasing on July 16 and August 6 respectively, and we’re licensing and publishing third-party titles such as R.I.P.D: The Game and Daylight. We want to thank all of our fans for their outpouring of support.

Follow me on Twitter or Facebook. Read my Forbes blog here.

Erik Kain

I write about video games, TV and movies.

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https://www.forbes.com/sites/erikkain/2013/06/27/atlus-parent-company-investigated-for-fraud-files-for-bankruptcy/#63e58b366341 3/3

(Translation) September 18, 2013 Dear Sirs, Name of Company: SEGA SAMMY HOLDINGS INC. Name of Representative: Hajime Satomi Chairman, President and Representative Director (CEO)

(Code No. 6460, Tokyo Stock Exchange 1st Section)

Further Inquiry: Koichi Fukazawa Senior Executive Officer Division Manager, Group Executive Office (TEL: 03-6215-9955)

Notice of Conclusion regarding Business Transfer Agreement of Index Corporation

Notice is hereby given that SEGA DREAM CORPORATION, which was newly established as a wholly owned subsidiary by SEGA CORPORATION (“SEGA”), a subsidiary of SEGA SAMMY HOLDINGS INC. (the “Company”), has concluded a business transfer agreement with Index Corporation (“Index”) for the purpose of revitalization of the business. Under the agreement, SEGA will take over the operations conducted by Index, the bankrupt company that applied to the Tokyo District Court for the commencement of civil rehabilitation proceedings effective from June 27, 2013.

Description

1. Purposes of the business transfer Index has achieved an excellent track record in the design and development of content for mobile phones. On the development of home video game software, the company owns a number of prominent IPs, namely the “ATLUS” brand titles of “Megami Tensei” series, “Persona” series and “Etrian Odyssey” series among others. Since 2012, SEGA has been assigned as a distributor in Japan of the home video game software programs which Index developed. This commissioned business has helped the Group increase revenue for its Consumer Business. In addition, Sammy Corporation (“Sammy”), the Company’s subsidiary, consigns the development of LCD rendering and control boards for pachinko and pachislot machines to Index. The Company believes that transfer of Index’s operations to SEGA will create synergies, on the grounds that the deal will enable the Company to (1) gain access to prominent IPs in the home video game software, through which the Company can expect to achieve steady flows of revenue; (2) expect further facilitation of revenue growth for the PC Online Game Business and Content Business for Smart Devices operated by SEGA and SEGA Networks Co., Ltd. by exploiting acquired prominent IPs and (3) maximize the value of acquired IPs by effectively deploying them in the Pachislot and Pachinko Machines segment, Amusement Machine Sales and Amusement Center Operations segments. Consequently, the Company has decided to agree to the business transfer as it will facilitate an increase in the enterprise value of the Company Group and Index on the back of these synergies. Although Index has been under investigation for possible violation of the Financial Instruments and Exchange Act, the Company concluded that it will not affect the business transfer based on the execution of due diligence. Conclusion of the business transfer agreement has been secured by supervisors and business transfer plans to be carried out upon the permission from the court stipulated by Civil Rehabilitation Act.

2. Outline of the business transfer (1) Details of operations to be transferred

The operations conducted by Index including the Digital Game Business (design and development of console games and social games); Contents & Solutions Business (delivery of contents, development of systems, consigned development related to amusement machines, internet advertising, etc.); Amusement Business (development and sales of commercial amusement machines) and related businesses. (2) Assets and liabilities to be transferred Tangible and intangible fixed assets as well as intellectual property assets related to the above operations to be transferred. (These include shares of Atlus Holding, Inc., which is the parent company of Index Digital Media, Inc., as well as Tiger Mob Limited, Index Corp (Thailand) Ltd. and Mobi Town Ltd.) In principle, liabilities including interest-bearing debts will not be taken over.

3. Outline of the transferor (1) Name Index Corporation (2) Description of Design and development of contents for mobile phones and development of main business home video game software programs (3) Date of September 1, 1995 foundation (4) Head office Carrot Tower, 4-1-1 Taishido, Setagaya-ku, Tokyo address (5) Representative President: Yoshimi Ochiai (6) Capital stock 39,379 million yen (7) Number of 378 (as of August 31, 2012) employees SEGA is a commissioned distributor of Index’s game software titles in Japan. Sammy, an affiliated company of SEGA, holds 5,280 shares in Index. It also (8) Relationship consigns to Index some of the development of images displayed on its game with the machines. Company Sammy NetWorks Co., Ltd., an affiliated company of SEGA, commissions part of the development and management operations for its content delivery service to Index.

4. Outline of the transferee (1) Name SEGA DREAM CORPORATION (2) Date of September 5, 2013 foundation (3) Head office 1-39-9, Higashi-Shinagawa, Shinagawa-ku, Tokyo address (4) Representative Representative Director: Naoya Tsurumi (5) Relationship SEGA holds 100% of the total outstanding shares in SEGA DREAM with the CORPORATION. Company * On September 5, 2013, SEGA DREAM CORPORATION was established to become the transferee of the transfer of Index operations. Its business name is set to change in the future.

5. Schedule September 18, 2013: Conclusion of business transfer agreement November 1, 2013: Due date for the transfer of the Index operation (tentative date)

6. Future outlook The impact of the business transfer on the Company’s financial results will be released as soon as it becomes clear.

End