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Bulky Document (Filed on Paper - Entire Document Exceeds 100 Pages) BULKY DOCUMENT (FILED ON PAPER - ENTIRE DOCUMENT EXCEEDS 100 PAGES) I Proceeding No. I 85040746 IFiling Date I7/18 /2017 IPartllof l I I 85040746 TTAB Amezcua; Moll &:: Associates, P .C. Lincoln Professional Center 1122 E. Lincoln Ave., Suite 203, Orange, CA 92867 (714) 288-2826. (714) 464-4536 July 12, 2017 VIA U.S. MAIL United States Patent and Trademark Office Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 In the Matter ofUSPTO Application Serial No. 85040746 Mark: NAUGLES for "cafeteria and restaurant services" To Whom It May Concern, Per TBMP Section 211.01, requests for reconsideration of the Board's granting of extensions of time to oppose can only be filed with the Board via paper. As such, enclosed please find the following: • Request for Reconsideration of the Granting of Del Taco's Request for a 90-Day Extension of Time to Oppose; and • Declaration of Kelly K. Pfeiffer, Esq. in Support of Request for Reconsideration of the Granting of Del Taco's Request for a 90-Day Extension of Time to Oppose Kindest Regards, Kelly K. Pfeiffer cc: Rose Amezcua-Moll, Esq. Ziebarth Holdings, LLC Il \\\ll\\Ill l\\Ill \\\I11 \111\\111\\1\11 \11 \\\\I11\111\\11\\1 01-11-2011 ,., TMOfc; TM Ma\\ Rcpt Ot #25 u. S. Patent .:::.. · 1 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD In the matter ofUSPTO Application Serial No. 85040746 Mark: ''NAUGLES" REQUEST FOR RECONSIDERATION OF THE GRANTING OF DEL TACO'S REQUEST FOR A 90 DAY EXTENSION OF TIME TO OPPOSE (filed concurrently with the Declaration ofKelly K Pfeiffer in Support of the Request For Reconsideration Of The Granting Of Del Taco's Request For A 90 Day Extension Of Time To Oppose) Pursuant to Trademark Manual of Examining Procedure Section 21 l.Ol, Applicant ZIEBARTH HOLDINGS, LLC ("Applicant") hereby requests reconsideration 1 of the Board's decision to grant DEL TACO, LLC's ("Del Taco") request for a 90-Day extension of time to oppose Application No. 85040746 (''the Application") for the trademark NAUGLES for cafeteria and restaurant services ("Del Taco's Request"). Del Taco's Request was filed without good cause and for an improper purpose. Del Taco's own registration for NAUGLES for "restaurant services" was cancelled in 2015 as the result of a petition filed by this very Applicant. As such, 1 On June 29, 2017 - the 30th day in the opposition period - Del Taco filed its Request for a 90- day extension of time to oppose Application serial no. 85040746. Pfeiffer Deel., Exhibit A. Before Applicant became aware that Del Taco's Request had been filed, the Board granted it, apparently on the same afternoon. Pfeiffer Deel., Exhibit B. Because Applicant was not aware that Del Taco had filed its Request until after it had already been granted, Applicant was not able to file an opposition to the Request. Instead, Applicant's only method to object was to file this request for reconsideration of the Board's decision. 1 Del Taco's Request should not have been granted and Applicant respectfully asks the Board to reconsider its decision. I. HISTORY BETWEEN THE PARTIES REGARDING THE NAUGLES TRADEMARK Since 2010, Applicant2 and Del Taco have been actively litigating before this Board Del Taco's lack of rights in the NAUGLES trademark. Declaration of Kelly K. Pfeiffer, Esq. ("Pfeiffer Deel."), ,-r 5. Applicant has already successfully petitioned to cancel Del Taco's now- defunct registration for NAUGLES for restaurant services on the basis of abandonment. Ziebarth v. Del Taco, LLC, Cancellation Proceeding No. 92053501, Dkt. #98, Oct. 31, 2015 (TTAB Opinion ordering Del Taco's NAUGLES restaurant services registration to be cancelled); id. at Dkt. #99 (Order by Commissioner for Trademarks cancelling Del Taco's NAUGLES restaurant services registration); Pfeiffer Deel., Exhibits D and E. For Del Taco to now represent to this same Board that it needs more time to determine if it has a legitimate reason to oppose the Application is disingenuous. Del Taco is abusing the TTAB 's system designed to assist bona fide potential opposers who have only recently become aware of a trademark that could potentially cause them damage and genuinely need additional time to evaluate their rights. Del Taco has no such genuine, bona fide reason for filing its Request. Instead, Del Taco is improperly attempting to delay registration of Applicant's mark to gain leverage in a second, currently-pending cancellation proceeding between the parties concerning the same trademark. Naugles Corp. v. Del Taco, LLC, 2 The Application was originally filed by Mr. Christian Ziebarth. On December 8, 2016, Mr. Ziebarth assigned his interests in the trademark and the Application to Ziebarth Holdings, LLC, an entity in which Mr. Ziebarth is a principal. Pfeiffer Deel., ,-i 4, Exhibit C. 2 Cancellation Proceeding No. 92064091 (Naugles Corp. filed a petition to cancel Del Taco's NAUGLES registration no. 4261951 for clothing); Pfeiffer Deel., Exhibit L. Del Taco is effectively holding the Application hostage by seeking an improper extension without good cause in order to cause Applicant and its business partner undue costs and hardship. Christian Ziebarth is Applicant's principal as well as President of a corporation named Naugles Corp. Pfeiffer Deel., ii 8. Naugles Corp. is the exclusive licensee of Applicant's NAUGLES trademark for restaurant and cafeteria services - the subject of the Application. Id. In 2012, Applicant and Naugles Corp. began offering restaurant services in interstate commerce under the NAUGLES mark. Id., Exhibit H. Since that time, Naugles Corp. has opened two NAUGLES restaurants in Southern California, with a third set to open shortly. Id. A. Applicant Successfully Cancelled Del Taco's NAUGLES Registration For "Restaurant Services." The Application, originally filed in May 2010, drew a 2(d) likelihood of confusion refusal 3 based on the existence of Del Taco's then-active NAUGLES registration no. 1043729 for "restaurant services." Pfeiffer Deel., ii 6. Although Del Taco had closed its last NAUGLES restaurant back in 1995, it continued to fraudulently file renewals for its registration with the USPTO in 1996 and 2006. Pfeiffer Deel., ii 6, Exhibit F. On December 20, 2010, Applicant filed a petition to cancel Del Taco's NAUGLES registration for restaurant services on the ground of abandonment. See Ziebarth v. Del Taco, LLC, TTAB Cancellation Proceeding No. 92053501, Dkt #1; Pfeiffer Deel., ii 7. The ensuing trademark dispute garnered a large amount of media attention, particularly in Southern California. Pfeiffer Deel., ii 7, Exhibit G. After a 4.5 year 3 The Application also initially drew a surname refusal, which has since been overcome by the acceptance of Applicant's 2(f) claim. Pfeiffer Deel., ii 6. 3 costly battle, the Board granted Applicant's petition to cancel, determining that Del Taco had abandoned its NAUGLES mark for restaurant services at least as early as 1995. Pfeiffer Deel., Exhibit D (granting the petition to cancel and ordering Del Taco's NAUGLES restaurant services registration to be cancelled). Del Taco's NAUGLES restaurant services registration was officially cancelled by the Commissioner of Trademarks on July 29, 2015. Id., Exhibit E. Thus, the 2( d) refusal to the Application was overcome. Despite the massive, expensive, and very public David vs. Goliath fight with Del Taco, Applicant and Naugles Corp. have slowly but surely successfully grown their business. Pfeiffer Deel.,~ 8. Del Taco has taken every possible opportunity to thwart Applicant's efforts to register its trademark and run a thriving business. Id. B. Naugles Corp. Has Petitioned To Cancel Del Taco's NAUGLES Registration For Clothing. In late 2011 during the lengthy cancellation proceeding over Del Taco's now-cancelled NAUGLES registration for restaurant services, Del Taco filed two, intent-to-use applications with the USPTO: one to register NAUGLES for restaurant services (stylized) (serial no. 4 85340660) , and one to register NAUGLES for clothing (serial no. 85281037). Pfeiffer Deel. ,~ 9, Exhibits I and J, respectively. Although it is obvious that Del Taco no longer offers restaurant services under the NAUGLES mark and, therefore, its sale of shirts and hats bearing the word NAUGLES is not trademark use but merely ornamental use, Del Taco still fraudulently sought additional registrations for a mark it had long ago abandoned. Unfortunately, back 2011 , Mr. Ziebarth and his business partners were not in a financial position to fight Del Taco on two fronts 4 Del Taco's application for NAUGLES (stylized) for restaurant services is suspended pending the outcome of the Application because the Application was filed first. Pfeiffer Deel. , ~ 9. 4 simultaneously, i.e., seek cancellation of the NAUGLES restaurant services registration and oppose the NAUGLES clothing application at the same time. Pfeiffer Deel., 'ii 9. As such, Del Taco's NAUGLES clothing application matured to registration. Id. In 2015, once business had ramped up and Naugles Corp. had plans to sell merchandise for its restaurants, Naugles Corp. filed a trademark application to register NAUGLES for clothing. Pfeiffer Deel., 'ii l 0, Exhibit K. Naugles Corp. currently sells clothing and other merchandise bearing its NAUGLES trademark not only at its two restaurants but also at the gift shop of the Waterfront Hilton Hotel in Huntington Beach, California. Id. When Naugles Corp.'s application was met with the inevitable 2(d) refusal based on Del Taco's NAUGLES clothing registration, Naugles Corp. promptly filed a petition to cancel on the following grounds: l) Del Taco's use of the mark on clothing is merely ornamental; 2) abandonment (failure to police the mark); 3) fraud (failure to inform the PTO of a material fact during the application process, i.e.
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