Estta1079948 09/04/2020 in the United States Patent And

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA1079948 Filing date: 09/04/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91255211 Party Plaintiff HCR Franqueadora Ltda - EPP Correspondence SCOTT HOUTTEMAN Address HOUTTEMAN LAW LLC PO BOX 370 MERRIFIELD, VA 22116 UNITED STATES Primary Email: [email protected] Secondary Email(s): [email protected] 202-263-0808

Submission Motion for Summary Judgment

Yes, the Filer previously made its initial disclosures pursuant to Trademark Rule 2.120(a); OR the motion for summary judgment is based on claim or issue pre- clusion, or lack of jurisdiction.

The deadline for pretrial disclosures for the first testimony period as originally set or reset: 01/30/2021 Filer's Name Scott Houtteman Filer's email [email protected] Signature /Scott Houtteman/ Date 09/04/2020 Attachments Motion.pdf(415834 bytes ) Decl1.pdf(3056337 bytes ) Decl2.pdf(381557 bytes )

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

HCR FRANQUEADORA LTDA - EPP

Opposer-Plaintiff

v. Opposition No. 91255211 (parent case) Opposition No. 91255212 HNT CHICKEN, LLC

Applicant-Defendant

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff-Opposer, HCR FRANQUEADORA LTDA - EPP (“HCR”), in this consolidation of

Opposition No. 91255211 (“Op. ‘211”) and Opposition No. 91255212 (“Op. ‘212”), and through its

undersigned counsel, moves for registration refusal as a matter of summary judgement under Fed. R.

Civ. P. 56. against Defendant HNT Chicken, LLC (“HNT-C”).

SUMMARY OF ARGUMENT

Jignesh “Jay” Pandya and Dany Levkovits formed a joint venture. Mr. Pandya, a Philadelphia-

based restaurateur, owned several closed Pizza Hut stores. Mr. Levkovits, the founder and CEO of

HCR, developed a successful chain of Brazilian chicken restaurant franchises, and wanted to expand

his brand into the United States market. The brand in question is HNT, HOT N’ TENDER which

specializes in crispy, tasty chicken tender dishes. HCR has registered its brand with the Brazilian

trademark office.

Together they planned to renovate the closed Pizza Hut stores, generally in the Philadelphia

area, into new HNT chicken stores. Mr. Levkovits and his team of HCR employees and associates

traveled to the Philadelphia region and imported their Brazilian brand in all respects. An HCR

architect supervised the renovation, including the latest HNT signage and menu layouts. HCR

provided its proprietary recipes, quality control procedures, located the proper restaurant kitchen

equipment and provided the proper kitchen layouts. HCR even provided specific job descriptions and

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quality control checklists. As a result of HCR’s efforts, several HNT brand stores successfully opened,

ready to offer HCR’s genuine Brazilian chicken product. In return for licensing his HNT brand, Mr.

Levkovits expected to receive a reasonable licensing fees.

Unbeknownst to Mr. Levkovits, however, Mr. Pandya had filed two U.S. intent-to-use

trademark applications for the Hot N’ Tender brand in the name of his newly formed company HNT-

C. Importantly, at the time of these filings there was no agreement of any kind between the parties.

Now, Mr. Pandya seeks allowance of these applications so that he can assert sole ownership of

the HNT brand in the United States. The Trademark Board should refuse registration as a matter of

summary judgement on two grounds: (1) HNT-C proved not to be the owner of the marks in the

United States—it’s an importer and distributer of HCR’s product and (2) HNT-C’s applications violate

the Pan American Convention with respect to Mr. Levkovits’ own trademark rights.

STATEMENT OF UNDISPUTED FACTS

The following facts are not in dispute:

PRE-FILING ACTIVITY

1. In 1995 Plaintiff HCR began selling crispy chicken tenders adapted to the Brazilian culture in

Rio de Janeiro under the mark “Hot n’ Tender.” Declaration of Dany Levkovits (“Levkovits Dl.”) at ¶

4 and Exhibit (“Ex.”) 1, HCR000247.

2. “Hot n’ Tender” chicken grew in popularity and, in 2015 HCR began expanding into a franchise network. Levkovits Dl. at ¶ 5.

3. Over the years, HCR modernized its branding and began using the Hot n’ Tender acronym

“HNT” and created a stylized image of a chicken in profile which it added to its advertising and signage. Id. at ¶ 5 Ex. 2, HCR000249.

4. On May 14, 2019, HCR has obtained a Brazilian trademark registration, No. 914391089 featuring Hot n’ Tender below its acronym “HNT” in large block letters, all of which is underneath its chicken profile icon. Id. at ¶ 8.

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5. In 2018 and 2019, HCR was named a “Top Franchise Brazil” for the fast food restaurant

market in Brazil and was awarded the “Excellence Prize” by the Brazilian Franchise Association. Id. at

6, Ex. 3, 4, HCR000174-175.

6. HCR has currently over forty (40) restaurants selling chicken throughout Brazil. Id. at ¶ 7.

7. On or about March 25, 2019, HCR owner and founder, Dany Levkovits, met Jignesh “Jay”

Pandya at a franchise trade show in Las Vegas where Mr. Pandya proposed a partnership with Mr.

Levkovits in which Mr. Levkovits would expand his Hot n’ Tender trademark to the United States market. Id. at ¶ 9.

8. A key incentive for the partnership was Mr. Pandya’s representation that he operated several former Pizza Hut restaurant locations that could be economically converted to Hot n’ Tender franchises. Id. at ¶ 10

9. At the time, Mr. Levkovits assumed these Pizza Hut locations were available for repurposing because of a general loss of interest in the marketplace for the Pizza Hut brand. Id. at ¶ 11.

10. A possible alternative reason for availability, however, was Mr. Pandya’s ongoing legal

dispute with Pizza Hut LLC who, having accused Mr. Pandya of breaching the franchise agreement in

2018, was operating with him under a forbearance agreement. See Pizza Hut, LLC v. Pandya et al.,

No. 4:19-cv-726-RWS, (E.D. Tex. filed Oct 4, 2019); Amended Complaint, Dkt. No. 12, filed Nov.

21, 2019 at ¶¶ 27, 29, 32 (alleging termination of Franchise Agreement as of Oct. 15, 2018 due to

Pandya breach (¶ 27), alleging a Pandya November 18, 2019 email planning conversion of Franklin

Mills location (now a Hot n’ Tender restaurant) into a “Mozz Kitchen – Pizza & Pasta” in breach of post-termination covenants (¶¶ 29, 32)); Order, Dkt. No. 34 (granting TRO to Pizza Hut, LLC in view of its showing of likelihood of success on the merits for breach of contract).

11. Mr. Pandya and Mr. Levkovits, following their March 25, 2019 meeting and over the next several months, began negotiating the terms of a joint venture agreement under which they planned to open HNT stores in the United States at former Pizza Hut locations. Levkovits Dl. at ¶ 12.

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12. In September of 2019, at Mr. Pandya’s request, Mr. Levkovits agreed to send his Architect to view locations proposed by Mr. Pandya for conversion to HNT chicken restaurants for the purpose of determining convertibility and plan designs for the locations as HNT chicken restaurants. Mr.

Levkovits’s Architect stayed for ten (10) days and shared her findings with the relevant parties. Id. at ¶

13.

13. On September 17, 2019, the relevant parties met for the last time before executing an agreement. During this meeting, the parties agreed that things were looking good and Mr. Pandya informed Mr. Levkovits that he would have his attorney draft and provide the agreement to Mr.

Levkovits for signing. Id. at ¶ 14.

FILING ACTIVITY

14. On September 19, 2019, Mr. Pandya, without the knowledge or consent of HCR, formed

Defendant HNT-C with himself as the Managing Member. See HNT-C’s Answers (both Op. ‘211 and

Op. ‘212), filed 5/20/20 at ¶ 15 (“Admitted, but objected to as irrelevant”).

15. Fourteen days later, on October 3, 2019, without agreement of any kind with HCR and without the knowledge or consent of HCR, HNT-C filed two “intent-to-use” applications with the United

States Patent and Trademark Office (PTO): one for a word mark “HNT,” Ser. No. 88/641,784 (Op.

‘212), and the other for a mark with stylized lettering and a logo depicting an image of a chicken in profile for HNT HOT N’ TENDER, Ser. No. 88/641,797 (Op. ‘211) (jointly, the “Hot n’ Tender marks”). Levkovits Dl. at ¶¶ 15, 17-18 (contemporary writing evidences no agreement either express or implied as of application filing date), 20 (marks have never been assigned).

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16. In Op. ‘211, there can be no dispute that HNT-C applied to register HCR’s trademarks as shown by a side-by-side comparison:

HNT-C’s application HCR’s Brazilian TM (Op. ‘211) Reg. No. 914391089

17. In Op. ‘212, HNT-C’s word mark application, for the acronym “HNT” is identical to a the

“HNT” acronym prominently displayed as part of the logo shown above.

18. In both of its intent-to-use applications HNT-C swore out the declaration:

“no other persons, except, if applicable, concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.” which HNT-C addressed in its Answers.

19. In its Answers, HNT-C admitted to making the declaration but added a disclaimer: “true in the

United States.” See Answer, Dkt. 4, Op. ‘211 at ¶¶ 19, 21 (“Admitted, and true in the United States”) see also ¶¶ 22-26 (answers depend on use in the United States); Answer, Dkt. 4, Op. ‘212 at ¶¶ 19, 21

(“Admitted, and true in the United States”), see also ¶¶ 22-26 (answers depend on use in the United

States).

POST-FILING ACTIVITY

20. Mr. Pandya and Mr. Levkovits continued their negotiations. On October 9, in a draft agreement, HCR (1) asserted it “is the owner” of the Hot n’ Tender marks and (2) indicated that Mr.

Pandya would share “an exclusive license” to the marks. Levkovits Dl. at ¶ 18, HCR000058, 59, 61

(excerpts of Oct. 9 draft agreement).

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21. On October 9, HCR first learned Mr. Pandya, as HNT-C, had filed the intent-to-use applications. Outraged, HCR immediately told HNT-C those applications were unauthorized, demanded HNT-C cancel the applications, return all brand items HCR had provided up to that point: blueprints, menu concepts, store layouts and other proprietary information. Id. at ¶ 15.

22. Mr. Pandya responded that the applications were “through counsel” and “done legally.” He refused to abandon the applications, insisting that HCR failed to protect its mark in the U.S. by failing to file its own U.S. trademark applications. Id. at ¶ 16.

23. The parties agreed to a compromise as to ownership of the Hot n’ Tender marks. HNT-C was to transfer its ownership of the marks to a company to be created, HNT Management LLC (or “HNT

LLC”) to be owned 80 % by HNT-C and 20 % by HCR. Id. at ¶ 19.

24. The parties intended the initial agreement to be temporary, to be superseded by the “HNT

Management LLC Agreement” that would define the franchise agreement for the long term. Id. at ¶ 23.

25. On October 11, a Memorandum of Understanding (“MOU”) was executed by all relevant parties in which the above terms, along with others, were formalized. Id. at ¶ 21, 24.

26. The MOU specified that HCR was in charge of all renovations necessary to change a former

Pizza Hut restaurant into a fully functioning Hot n’ Tender branded restaurant. HCR provided an

Architect who modified both exterior and interior store designs, including addition of proper Hot n’

Tender brand signage. Id. at ¶¶ 13, 24, 26; Exhibits 5, 6A-B, 7-11 (HCR000231-234, 236, 236).

27. HCR personnel traveled to the U.S., together with an Operational Consultant who specialized in store rollouts, to help manage the renovation, brand introduction and rollout. Id. at ¶¶ 25 - 28.

28. Together the HCR personnel and the Operational Consultant defined certain job responsibilities and included detailed job descriptions for every restaurant position. Id. at 27, Ex. 12A-

12F (HCR000191-202) (Redacted to protect proprietary information).

29. HCR provided quality control, for example, a prepackaged breading from a local supplier and automatic food labeling and dating. Id. at ¶ 27.

30. HCR also provided quality control in the form of checklists. Id. at ¶ 27, Ex. 13 (HCR000225).

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31. HCR provided HCR uniforms and kitchen layouts. Id. at ¶ 27, Ex. 15A, 15B.

32. HCR provided its chef for training in food preparation. Id. at 18, Ex. 16.

33. On Feb. 21, 2020, in preparation for entering the U.S. market, HCR has filed his own application, No. 88805376:

Id. at ¶ 31.

34. As of the drafting of this brief HNT-C lists seven (7) HNT-C stores open and operating in the

United States: Franklin Mills, 66th Ave, Huntington Park, Collingdale, Aston, Oxford and New

Britain, See < https://www.hotntender.com/locations/>, last visited 7/20/2020; Levkovits Dl. at ¶ 28.

35. The stores do not use the HNT-C mark. They use HCR’s mark, as is shown in this side-by-side comparison:

HNT-C’s HNT-C’s HCR’s U.S. App. App. (Op. ‘211) Oxford Store No. 88805376

Oxford Store, Houtteman Declaration at ¶2, Exhibit 2.

36. The consuming public associates the stores’ product as having a Brazilian origin and having a

Brazilian flavor. Id. at ¶ 30 Ex. 17A – 17E (various media articles reciting “Brazilian touch,”

“Founded in Brazil by Dany Levkovits,” “Brazilian fried chicken chain plans 50-plus . . . locations,”

“Brazilian concept . . . we feel will be successful here.”)

37. Within a few months of operations under the MOU, Mr. Pandya claimed HCR has breached the MOU. Id. at ¶ 32.

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38. HNT Management LLC was never formed and an HNT LLC Agreement was never drafted. Id. at ¶ 23.

39. Mr. Pandya now claims sole ownership of the Hot n’ Tender marks in the United States. HNT-

C Answer, Op. ‘211, at ¶ 37 (“HNT-C owns the mark in the United States”); HNT-C Answer, Op.

‘212, at ¶ 37 (same).

40. Prosecution of the HCR application has been suspended pending the outcome of this consolidated opposition. See Suspension Notice issued May 12, 2020, Ap. No. 88805376.

ARGUMENT

I. IN THE ABSENCE OF AN AGREEMENT THE FOREIGN FRANCHISE OWNER, NOT ITS EXCLUSIVE U.S. DISTRIBUTER, OWNS THE TRADEMARK

HNT-C has filed two intent-to-use applications seeking registration of the Hot n’ Tender, HNT marks. The parties dispute ownership of these marks. There is no dispute, however, that (1) HNT-C had no agreement with HCR when its applications were filed and (2) HNT-C is a U.S. distributer of

HCR’s Brazilian chicken products and services and, as such, HCR retains ownership of its trademarks.

We will summarize the relevant legal precedent regarding ownership then show that the facts establishing HCR’s ownership are undisputed.

It has long been the law that, in the absence of an agreement, the Trademark Board will presume that the foreign manufacturer, not its United States distributer, is the owner of the trademark.

See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 29.8 at 29-44; n.3 (5th ed., 2020 update); Hank Thorp, Inc. v. Minilite, Inc., 474 F. Supp. 228 (D. Del. 1979) (mark owner

was English manufacturer, despite years of advertising and use by U.S. distributer); Global Maschinen

Gmbh v. Global Banking Systems, Inc., 227 U.S.P.Q. 862, 1985 WL 71943 (T.T.A.B. 1985) (mark

owner was German manufacturer; application of U.S. distributor to register mark found fraudulent);

Audioson Vertriebs – Gmbh v. Kirksaeter Audiosonics, Inc., 196 U.S.P.Q. 453, 1977 WL 22588

(T.T.A.B. 1977) (KIRKSAETER mark owner was German hi-fi equipment manufacturer, despite

agreement governing shipments and despite importer incorporating as “Kirksaeter in America, Inc,”

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because mark owner gave no authorization to importer to use trademark); Nahshin v. Product Source

International LLC, 107 U.S.P.Q.2d 1257, 1263, 2013 WL 3480289 (T.T.A.B. 2013) (mark owner was

Israeli producer); Uveritech, Inc. v. Amax Lighting, Inc., 115 U.S.P.Q.2d 1242, 2015 WL 4380998

(T.T.A.B. 2015) (mark owner was person who designed product, conceived the mark and came to relationship (with trademark registrant) with the mark already in use). In addition to owning the chicken product trademark, HCR also owns the franchise service mark which is protected in the same manner and with the same effect. See 15 U.S.C. § 1053 (2020) (“[S]ervice marks shall be registrable, in the same manner and with the same effect as are trademarks . . .”).

This law, of course, applies equally to services provider such as franchises: use of the mark by the franchisee/store inures to the benefit of the franchisor. T.M.E.P. § 1201.03(e) (2018) (citing Mr.

Rooter Corp. v. Morris, 188 U.S.P.Q. 392, 394 (E.D. La. 1975); Southland Corp. v. Schubert, 297 F.

Supp. 477, 160 U.S.P.Q. 375, 381 (C.D. Cal. 1968)). Also, it is well settled that even exclusive distributers cannot acquire ownership of foreign marks through U.S. sales and distribution any more than a wholesaler can acquire ownership of an American manufacturer’s mark, merely though the sale and distribution of goods bearing the manufacturer’s trademark. See, McCarthy, § 29.8 at 29-46; CSL

Silicones, Inc. v. Midsun Grp. Inc., 301 F. Supp.3d 328, 350 (D. Conn. 2018) (exclusive U.S. distributor of Canadian-made goods did not acquire ownership in the U.S. of Canadian manufacturer’s trademark); Hank Thorp, 474 F. Supp. at 236 (despite years of sales and advertising, exclusive U.S. distributer of “MINILITE” magnesium racing wheels did not acquire ownership of mark from British manufacturer).

A. No Agreement Existed Between The Parties

At the relevant time, when HNT-C filed its applications, there was no agreement between

HNT-C and HCR. The undisputed record shows HNT-C filed its intent-to-use applications on October

3, 2019, eight (8) days before the parties signed the MOU. HNT-C Answers, Op. 211, Op. 212, at ¶¶

17, 18 (admitted “no written assignment” and “no written agreement of any kind”).

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B. HCR Personnel Provided To The Joint Venture All Branding And Franchise Operating Expertise Including: Signage, Architectural Services, Chicken Recipes, Cooking Lessons And Quality Control

1. HCR Has Done Everything With Respect To The Trademark

From their March 25, 2019 initial meeting at the Los Vegas franchise trade show through their negotiations to the untimely end of their joint venture, the parties agreed that that Mr. Pandya would provide the store locations and Mr. Levkovits, and HCR, would import the “HNT, Hot N’ Tender” brand into the United States.

There is no dispute that HCR was motivated by a desire to expand into the U.S., and the ready availability of multiple former Pizza Hut locations, and that Mr. Pandya, a savvy franchise operator, was motivated, and willing to risk his investment, because he would have full access to the HCR franchise, it’s “HNT, Hot N’ Tender” branding with its 25-year track record of success, its time tested popular chicken tender recipes and its general expertise in successfully opening and operating HNT stores (currently over 40 operating in Brazil).

That Mr. Pandya was importing the HCR’s Brazilian franchise, rather than independently developing the HNT, Hot N’ Tender trademark himself, is illustrated by the documents the parties exchanged during negotiations. The final version, while not executed until after HNT-C’s application filing dates, does provide irrefutable evidence of Mr. Pandya’s intent on this issue (emphasis added):

3.5 HCR-USA [HCR’s wholly owned U.S. subsidiary] and Dany Levkovits and Christiana Plater Breyvogel [HCR’s Co-Owner] shall provide HNT-Stores through HNT LLC with (i) adequate training to HNT-Stores personnel related to the use of the HNT Brand, and the development of the HNT Branded restaurants in the Territory, (ii) sales and marketing support, training and marketing materials design, as needed to support successful and profitable operations, (iii) technical support on an as needed basis, and (iv) trained field personnel to train HNT-Stores personnel on site.

3.5.1 All necessary and appropriate training shall be provided by Dany Levkovits and HCR Franqueadora or HCR-USA personnel.

3.5.2 All of the abovementioned training shall be provided by Dany Levkovits and HCR Franqueadora who shall devote as much time as may be necessary to train staff of each Store; and Dany Levkovits shall spend as much time at each Store and in the Territory as may be necessary to fulfill his duties set forth in this MOU and shall at all times use his best efforts to carry out his duties in this MOU.

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See Levkovits Dl. at ¶ 24.

In accordance with this agreement, HCR personnel traveled to the United States and provided

all of the trademark related features of the U.S. stores to be opened. HCR’s Architect planed the

remodeling of former KFC stores, including HCR’s signage. HCR provided kitchen layouts, identified

proper kitchen equipment (e.g. “holding cabinets” to keep the food product at a high quality,

proprietary recipes including quality control procedures (prepackaged breading mixes) and its own

chef who provided cooking lessons. HCR also provided uniforms, and menu layouts, job descriptions

and quality control procedures such as checklists. Facts at ¶¶ 25-29. Also, the consuming public associates the product with HCR’s Brazilian origin and Brazilian flavor. Facts at ¶ 30 (Media articles all reference “Brazilian” chicken).

2. HNT-C Has Done Nothing With Respect To The Trademark

As for HNT-C, its only relevant activity was the filing of the two applications. It is well settled

law that the filing of an application, itself, provides no trademark ownership rights. In re ECCS, 94

F.3d 1578, 39 USPQ2d 2001 (Fed. Cir. 1996) (J. Rich) (“[T]he most fundamental aspect of United

States trademark law . . . [is] that trademark ownership and attendant rights are acquired in the

marketplace by use”); Holiday Inn v. Holiday Inns, Inc., 534 F.2d 312, 189 USPQ 630, n.6 (Cust. Ct.

1976) (“It is fundamental that ownership of a mark is acquired by use, not by registration. One must be

the owner of a mark before it can be registered”).

C. HNT-C DEFENSES LACK MERIT

We now anticipate arguments HNT-C will make in defense of its ownership claim and we

show none of these arguments feature a disputed material fact or raise a meritorious issue of law.

1. HNT-C Is Not An Independent User Of A Foreign Mark.

It is true that trademark rights are acquired by adoption and use of the mark in the U.S. See

Hydro-Dynamics, Inc. v. George Putman & Co., 811 F.2d 1470, 1 USPQ2d 1772, 1774 (Fed. Cir.

1987). Because trademark rights are territorial in nature, foreign use of a mark creates no trademark

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rights in the United States. See Johnson & Johnson v. Salve S.A., 183 USPQ 375, 376 (TTAB 1974).

Knowledge of foreign use of a mark, by itself, does not preclude good faith adoption and use by

another in the United States. See Person’s Co. v. Christman, 900 F.2d 1565, 14 USPQ2d 1477 (Fed.

Cir. 1990).

But these cases do not help HNT-C. In Person’s Co., for example, a U.S. citizen sportswear

wholesaler, after seeing the PERSON’S mark in use by a fashion designer in Japan, filed a U.S.

application for the PERSON’S mark and, independent of the Japanese fashion designer, began using

the PERSON’S mark in the U.S. See 900 F.2d at 1567. If HNT-C had independently developed and

used the HOT N’ TENDER or HNT, mark in the U.S. then Brazilian Opposer HCR would have no

claim. But HNT-C did not do so. On the contrary, as explained above, to maximize the chances that

the U.S. launch would be successful, it was agreed and arranged by the Parties that HCR personnel

would visit the U.S. and build a genuine Brazilian HNT store, equivalent to the Brazilian franchise

stores.

Indeed, HNT-C filed in the U.S., in secret, after the negotiations made it clear HCR would be

introducing its brand in the U.S. See Facts at ¶¶ 20 – 23. HNT-C hoped these filings would prevent

HCR from filing its own application. The actions of HNT-C are analagous to those of the applicant in

Mastic Inc. v. Mastic Corp., 230 USPQ 699, 702 (T.T.A.B. 1986) (in filing application, applicant

intended to preclude foreign opposer from entering United States market based on applicant’s

knowledge of opposer’s claim to mark in foreign countries and of opposer’s intention to enter United

States market); see also Hank Thorp, Inc., 474 F. Supp. at 238 (court inferred from “the secrecy

surrounded the proceedings in the Patent Office . . . that [U.S. distributer] knew his company did not

own the United States right to the . . . mark”)

2. HNT-C’s Stores Are Not Even Using HNT-C’s Mark, They Use HCR’s Mark

Since HNT-C filed its application, and copied the HCR logo, the HCR’s Brazilian franchise has updated its signage, including a new logo. There is no better indication of who owns the trademark than the fact that, in the U.S., the HNT stores use the HCR mark (with the updated signage) not the

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HNT-C mark. See Facts at ¶ 36 (comparing Parties’ applications with the signage of the Oxford, PA

store).

This odd state of affairs merits some discussion. If HNT-C were, as it claims, the bona fide intended user of the mark, this would be a colossal blunder. Should HNT-C survive this opposition proceeding, and have its application pass to issue, it may not qualify for registration after all.

Technically speaking, HNT-C is still not using the mark for which it applied. Worse, it must file a statement of use (SOU) with the HCR mark as the specimen. Consequently, HNT-C must argue “the mark as used on the specimens is a substantially exact representation of the mark on the drawing.” See

T.M.E.P. §§ 1109.07, 1109.09(b). But those marks are not “substantially exact” representations and

HNT-C may not be able to convince the trademark attorney otherwise.

But this was not a blunder. When it came to opening and operating a successful franchise,

HNT-C was not thinking about its applications, it was thinking of maximizing its chances of a successful launch. Toward that end, it wanted an exact replica of the successful Brazilian franchise stores and that included having the up-to-date signage.

3. HNT-C Was Not The Owner As Of The Filing Date

HNT-C will seek to prove HCR breached the MOU and claim ownership by way of that

breach. But, as stated above, the MOU was not in effect at the time HNT-C filed its applications. Even

if HNT-C could persuade the Trademark Board the MOU was effectively an assignment, that would

not change things. Under the relevant statute, §1(b) or §44 of the Lanham Act, 15 U.S.C. § 1051(b), an

application must be filed by a party entitled to use the mark in commerce as of the application filing

date. 15 U.S.C. §§ 1051(b)(3)(A)-(B), 1126(d)(2), 1126(e); 37 C.F.R. §2.33(b)(2); see also T.M.E.P.

§§ 1201, 1201.02(b) (2018). The best outcome HNT-C could hope for is to prove it obtained

ownership eight (8) days after it filed the applications. But to prevail in this opposition, HNT-C must

establish ownership as of the filing date. It would be eight days too late.

And there are other problems with this argument besides the timing. When the person

designated as the applicant is not the entity with the bona fide intent to use the mark in commerce at

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the time the application was filed, the application is void ab initio. T.M.E.P. § 1201.02(b) (2018);

American Forests v. Sanders, 54 U.S.P.Q.2d 1860, 1864. From the moment HNT-C decided HCR

would introduce the mark in the U.S., HNT-C’s application was void. Also, one cannot assign an

intent-to-use application until after a statement of use is filed. See Jim Henson Prods. v. John T. Brady

& Assocs., 867 F. Supp. 175, 182-83 (S.D.N.Y. 1994) (explaining that prior to actual use there is no

assignable interest in a trademark) cited in Sebastian Brown Prods. LLC v. Muzooka Inc., No. 15-cv-

01720-LHK at 19 (N.D. Cal., March 14, 2016).

These problems should have been apparent to HNT-C. To avoid having a non-owner file the

application, the USPTO requires a declaration that “no other persons, except, if applicable, concurrent

users, have the right to use the mark in commerce.” In its Answer HNT-C admitted this was “true in

the United States” (thus conceding it was not true outside of the United States). And, as shown by its

subsequent behavior—recognizing that HCR had the right to use the trademark in remodeling the U.S.

stores—this was not even true in the United States. HNT-C should have been honest in filing it’s

trademark applications. Had it done so, the trademark attorney could have addressed the ownership

issue during prosecution. We suspect this is precisely why HNT-C declared “no other persons” but,

with fingers crossed, really meant “no other persons in the U.S. at this particular point in time.”

We note that the Lanham Act defined use in commerce: “[A] mark shall be deemed to be in

use in commerce . . . on services when . . . the services are rendered . . . in the United States and a

foreign country.” 15 U.S.C. §§ 1127, 1127(2) (2020) HNT-C truncation “true in the United States” is

inconsistent with this language.

4. No Actual or Implied Assignment Existed When HNT-C Filed Its Intent-To- Use Applications

In its Answers, HNT-C claims ownership rights by implication prior to filing its applications.

Answer, Op. No. ‘211, Dkt. 4 at 17 (“HCR agreed to an approved of HNT-C’s registration, ownership and use of the Marks . . . in oral conversations . . . before the applications were filed”); Answer, Opp.

‘212, Dkt. 4 at 15 (same).

- 14 -

First of all, HNT-C faces a high legal bar in this regard. “In light of the strong initial

presumption of manufacturer trademark ownership and the rather strict requirements for express

transfers, a finding of transfer to a distributor by implication would be quite rare.” TMT North

America, Inc. v. Magic Touch GmbH, 124 F.3d 876, 883 (7th Cir. 1997). Indeed, HCR counsel has

been unable to find a single instance of a court or government agency recognizing trademark

ownership transfer by implication.

Secondly, the uncontradicted evidence shows, at the time the applications were filed, HNT-C

was told it would be a licensee and HCR would maintain ownership of its marks. Draft versions of the

MOI—exchanged between the parties days after the application filing date—still refer to HNT-C as a

licensee and HCR as the trademark owner. Facts at 20 (contemporaneous writing (draft agreement)

shows HCR asserting “it is the owner” even after HNT-C filed its applications) Accordingly, it is

beyond dispute that HNT-C had no express or implied assignment of the HOT N’ TENDER marks

from HCR when HNT-C filed its applications.

II. PLAINTIFF HCR HAS VIOLATED THE PAN AMERICAN CONVENTION

Plaintiff HCR has a trademark application on file with the PTO for HNT CHICKEN

BONELESS CRISPY CHICKEN. Facts at ¶ 33. This application is currently suspended pending the

outcome of this consolidated opposition. Id. at ¶ 40.The Trademark Board is invited to take official

notice of this USPTO public record:

=3&page=1>, Suspension Notice, Ser. No. 88805376, issued May 12, 2020.

If Applicant HNT-C is allowed to register the marks of this consolidated opposition, it will

interfere with HCR’s rights under the General Inter-American Convention for Trade Mark and

Commercial Protection (“IAC” or “Pan American Convention”), Section 7, which grants its

application, Ser. No. 88805376, priority over the applications of this opposition.

- 15 -

A. The Pan American Convention Provisions

The governments of Brazil and the United States of America (as well as several other South

and Central American countries) adopted the Pan American Convention. 46 Stat. 2907; Treaty Series

833; Bacardi Corporation of America v. Domenech, 311 U.S. 150, 161 (1940) (“This treaty on

ratification became a part of our law. No special legislation in the United States was necessary to make

it effective.”); see copy at Library of Congress < loc.gov/law/help/us-treaties/bevans/m-ust000002-

0751.pdf >, last visited 9/4/2020.

Article 7 of the Pan American Convention states (emphasis added):

Any owner of a mark protected in one of the Contracting States in accordance with its domestic law, who may know that some other person is using or applying to register or deposit an interfering mark in any other of the Contracting States, shall have the right to oppose such use, registration or deposit and shall have the right to employ all legal means, procedure or recourse provided in the country in which such interfering mark is being used or where its registration or deposit is being sought, and upon proof that the person who is using such mark or applying to register or deposit it, had knowledge of the existence and continuous use in any of the Contracting States of the mark on which opposition is based upon goods of the same class, the opposer may claim for himself the preferential right to use such mark in the country where the opposition is made or priority to register or deposit it in such country, upon compliance with the requirements established by the domestic legislation in such country and by this Convention.

Simply put, if HNT-C knew of the “existence and continuous use” in Brazil of the HNT registered

mark, then HCR has the right to oppose HNT-C’s attempt at registering the mark in the United States.

Not only that, HCR can claim “preferential right” to use the mark in the United States.

B. Mr. Pandya And HNT-C Knew Of The Existence And Continuous Use Of HCR’s Mark When It Filed Its Application

Mr. Pandya knew of the existence and continuous use of HCR’s Brazilian mark, HNT, HOT

N’ TENDER. From his initial meeting with Mr. Levkovits on March 25, 2019 through the final

meeting before Mr. Pandya filed the applications on September 17, 2019, Mr. Pandya had repeated and significant interactions with Mr. Levkovits and his brand. On September 17, 2019, for example, Mr.

Pandya received a report from Mr. Levkovits’ Architect on the feasibility of converting Mr. Pandya’s

Pizza Hut stores into HNT stores.

- 16 -

And there is the “smoking gun” evidence—HCR’s Brazilian mark registration issued on May

14, 2019 and HNT-C’s application contains an exact copy of the Brazilian Registered mark. See

Complaint, Opp. 211 at ¶¶ 9, 16; Exhibit A to the Complaint.

HNT-C’s HCR’s Brazilian . App. (Op. ‘211) App. 914391089 No. 88805376 Facts at ¶ 16. This proves Mr. Pandya not only knew of the HCR’s Brazilian registration, but retrieved

the actual registration certificate so that he could make a copy of the logo to submit with his

application.

Accordingly, Plaintiff HCR requests: a finding that, under Article 7 of the Pan American

Convention, HCR is entitled to “preferential right” to this mark and, as a result, that the USPTO refuse registration of HNT-C’s applications on that ground. With respect to HCR’s U.S. application, HCR requests an instruction to the Trademark Attorney to recognize HCR’s preferential right over the applications of HNT-C, to release the suspension and proceed with the trademark examination consistent with this finding.

CONCLUSION

Plaintiff, Opposer HCR requests the Trademark Board refuse registration of the two applications of this consolidated opposition because (1) applicant HNT-C was not the owner at the time the applications were filed and (2) applicant HNT-C violated HCR’s rights under the Pan

American Convention as well as (3) any other reason the Board see just and proper.

Dated: September 4, 2020 Respectfully Submitted,

- 17 -

/s/ Scott Houtteman Scott Houtteman, VSB No. 65567 HOUTTEMAN LAW LLC PO BOX 370 Merrifield, VA 22116-0370 Tel. (202) 263-0808 Fax. (703) 485-1022 [email protected] Attorney for Opposer

CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing Motion For Summary Judgment, including attachments, has been served by email to: Michael C. Whitticar at [email protected] via the TTAB’s ESTTA filing system on September 4, 2020.

/s/ Scott Houtteman

- 18 - IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

HCR FRANQUEADORA LTDA - EPP Opposer-Plaintiff Opposition No. 91255211 (parent case) Opposition No. 91255212 v.

HNT CHICKEN, LLC Applicant-Defendant

DECLARATION OF DANY LEVKOVITS

I, Dany Levkovits, declare as follows:

1. I am the owner, founder and CEO of HCR FRANQUEADORA LTDA - EPP

(“HCR”) the Plaintiff in the above identified consolidated opposition.

2. While Portuguese is my native language, I am also fluent in English.

3. I am knowledgeable about the history of HCR and all relevant personal

transactions, occurrences and documents pertaining to this opposition to Defendant HNT

CHICKEN, LLC (“HNT-C”)’s trademark applications.

HISTORY OF HCR TRADEMARK USE

4. Attached Exhibit 1, HCR000247, shows a store in Rio de Janeiro with the original

signage starting in 1995, featuring the words “Hot n’ Tender” in a stylized cursive font.

5. Attached Exhibit 2, HCR000249, shows our current signage. Our restaurant grew

in popularity so starting in 2015 HCR opened several franchise locations and updated its

mark. We developed a logo of a chicken head, in profile, which we use with “HNT,” the

acronym of the original mark. We also use this logo on menus, on employee uniforms and in advertising.

6. In 2018 and 2019, HCR earned a “Top Franchise Brazil” award for fast food restaurants and the “Excellence Prize” by the Brazilian Franchise Association. These awards are shown in Exhibits 3 and 4.

7. HCR has currently over forty (40) restaurants selling crispy chicken tenders throughout Brazil with the “HNT” and chicken head profile trademarks.

8. May 14, 2019, HCR’s registered its trademarks, the words HOT N’ TENDER below its acronym “HNT” in large block letters, all of which are underneath the chicken head profile, Brazilian Trademark Registration, No. 914391089.

9. On or about March 25, 2019, I met Jignesh “Jay” Pandya at a franchise trade show in Las Vegas where Mr. Pandya proposed a partnership with HCR in which Mr. Pandya would expand the HNT franchise chain to the United States market.

10. A key incentive for the partnership was Mr. Pandya’s representing to me that he operated several former Pizza Hut restaurant locations that could be economically converted to HNT stores.

11. At the time, I assumed these Pizza Hut locations were available for repurposing because of a general loss of interest in the marketplace for the Pizza Hut brand.

12. Mr. Pandya and I, following our March 25, 2019 meeting and over the next several months, began negotiating the terms of a joint venture agreement under which we planned to open HNT stores in the United States at former Pizza Hut locations.

13. In September of 2019, at Mr. Pandya’s request, I agreed to send my Architect, Ms.

Vania Morais Becker, to view locations proposed by Mr. Pandya for conversion to HNT chicken restaurants for the purpose of determining convertibility and plan designs for the locations as HNT chicken restaurants. Ms. Becker stayed for ten (10) days and shared her findings with the relevant parties.

14. On or about September 17, 2019, the relevant parties met for the last time before executing a Memorandum of Understanding (MOU) agreement. During this meeting, the parties agreed that things were looking good and Mr. Pandya informed me that he would have his attorney draft and provide the MOU to me. for signing.

15. On or about October 9, 2019 I learned that Mr. Pandya had filed two United States trademark applications using HCR’s trademarks. I was outraged. I told him those applications were unauthorized and demanded HNT-C cancel the applications, return all brand items HCR had provided up to that point: blueprints, menu concepts, store layouts and any other proprietary information.

16. Mr. Pandya responded that the applications were “through counsel” and “done legally.” Mr. Pandya also said that HCR had failed to protect its trademark rights in the

U.S. by failing to file a U.S. trademark application.

17. At the time of the October 9 dispute, and all times previously, Mr. Pandya had received no assignment of any kind, either written or implied, of the HNT trademarks.

18. This is reflected in a then current draft of the MOU, HCR000058-65, attached to an Oct. 9, 2019, 4:20 PM email, HCR000053-57 which was exchanged between the parties (emphasis added):

“WHEREAS, HCR Franqueadora Ltda. is the owner of the brand, the ‘HNT Brand’ . . .” * * * “HNT Brand”, a brand which is owned by HCR Franqueadora in Brazil with rights transferred to HCR USA [a wholly owned affiliate of HCR] and is the principal asset of this Agreement, means all of the intellectual property associated with the HNT chicken concept, including trademarks, service marks, patents, copyrights, recipes, trade secrets, and such other intellectual property, registered or not in the United States, Brazil, or elsewhere worldwide. * * * “HCR-USA shall supply HNT LLC [a company jointly owned by HCR and HNT- C, to be formed] and HNT Stores with (i) an exclusive license (the “License”) with respect to the HNT Brand . . .”

Excerpts from HCR000058, 59, 61 (at ¶ 3.3).

19. On October 9, 2019, in view of Mr. Pandya’s refusal to accept an exclusive license, I offered a compromise, an assignment to a U.S. company I would own jointly with Mr. Pandya, “HNT LLC:”

“HNT LLC” means a limited liability company formed under the laws of the State of Delaware and in which the parties, or the designees shall be members with the Participation Units set forth herein. * * * It is mutually agreed both Parties shall own the HNT Brand, as well as HNT LLC in the following percentages: for the US Territory - eighty percent (80%) for HNT-C and twenty percent (20%) for HCR USA; provided that with respect to the Remaining Territory any profit from HNT LLC shall be distributed at the percentages of seventy percent (70%) for HNT-C and thirty percent (30%) for HCR USA, upon HNT LLC Agreement ratification”

HCR000059, 60 (¶ 3.1)

20. To this date, I have not assigned the HCR trademarks to anybody, either in writing or by implication.

21. A final version of the MOU was executed on Oct. 11, 2019 and construction of the

U.S. Hot n’ Tender stores began.

22. This MOU was to be “superseded by the HNT [Management] LLC Agreement,”

Excerpt of ¶ 2, MOU page 1, HCR000131.

23. To my knowledge, neither HNT Management LLC nor any other jointly owned company, was ever formed to accept an assignment of HCR’s trademarks.

24. In the final version of the MOU, as well as in previous versions, HCR, and its wholly owned U.S. subsidiary HCR-USA, had responsibility for training “related to the use of the HNT Brand” see e.g.:

HCR-USA and Dany Levkovits and Christiana Plater Breyvogel [HCR’s Co- Owner] shall provide HNT-Stores through HNT LLC with (i) adequate training to HNT-Stores personnel related to the use of the HNT Brand, and the development of the HNT Branded restaurants in the Territory, (ii) sales and marketing support, training and marketing materials design, as needed to support successful and profitable operations, (iii) technical support on an as needed basis, and (iv) trained field personnel to train HNT-Stores personnel on site.

3.5.1 All necessary and appropriate training shall be provided by Dany Levkovits and HCR Franqueadora or HCR-USA personnel.

HCR000134 (¶¶ 3.5, 3.5.1, 3.5.2).

25. HCR provided the operational knowhow and quality control during the construction and operational start up process. Generally speaking, HCR provided four direct employees and recommended the Operational Consultant, knowledgeable about the brand and with expertise, particularly in new store startups, to execute HCR directives from Brazil when necessary. The total time spend in the U.S. by HCR personnel and associates was: Dany Levkovits - May 17th, 2019, July 31st, 2019, Sept 9th-15th, 2019,

Oct 8th-14th, 2019, Nov 24th-Dec 28th, 2019, Jan 7th-Jan 12th, 2020, Jan 18th-Feb 5th,

2020; Christiana Plater Breyvogel (HCR Co-Owner) - April 9th-13th, 2019, May

17th, 2019, July 31st, 2019, Oct 8th-14th, 2019, Jan 18th-Feb 5th, 2020 Vania Becker

(HCR Architect) - Sept 9th-21st, 2019, Nov 3rd-10th, 2019, Jan 9th-Feb 5th, 2020;

Artur Cardose da Silva (HCR Chef) - April 9th-13th, 2019, Oct 8th-14th, 2019, Dec

12th-31st, 2019, Jan 6th-Feb 5th, 2020; John Velasquez (Operational Consultant) - Jan

6th-Jan22nd, 2020.

26. Specifically, this included the Architectural services of Ms. Becker who transformed former Pizza Hut stores into HNT stores, including exterior building signage, exterior “Drive Thru” signs, menu boards and interior countertop design and store layouts. This can be seen by our logo design treatments which we sent from Brazil to the local sign manufacturer (KC Sign & Awnings) and by the before and after pictures taken on site. Exhibits 5, 6A-6B, 7-11, HCR000231-234, 236, 237.

27. The Operational Consultant, Mr. John Velasquez, together with the HCR staff managed supply chain and brand procurement requirements for the brand during the

rollout, resolved numerous problems, steered operations away from others, and provided valuable quality control, including:

● finding local source for the HNT seasonings breading case, in which the HNT

breading mix is pre-packed and ready to use,

● providing a food labeling to appropriately date and label all the food products in the

store,

● found quality chicken tender company at a competitive price,

● provided supplier for large kitchen equipment and small-wares,

● designed all the kitchen spaces and supplied approved layouts and equipment specs

for all stores to provide proper operational flow and efficiency for both drive thru and

walk up customers,

● provided source for proper HNT approved food handling equipment including proper

holding cabinets, french-fry holding stations, and proper sized bun toasters (and

directed improper equipment be removed), all to unsure the product served to the

customer was at a high quality,

● established standard operating procedures: an Ordering & Inventory Count Guide, job

descriptions for every restaurant position, work schedule templates, checklists for

closing manager and opening manager, a deep cleaning checklist, daily checklists for

each of four operational zones,

● provided designs for employee uniforms,

● located proper pest control and restaurant laundry services, 7

● in general, instituted a “People Plan” for motivating employees, including tools and

systems in place for them to succeed, as described above. For example, under this

system the store manager assembled a stress-free work schedule with input from team

members.

See, e.g., Exhibits 12A-12F (HCR000191-202) (Redacted to protect proprietary information) 13 (HCR000225), 14 (HCR000212), 15A and 15B (HCR000244-245).

28. HCR sent its chef, Artur Cardoso da Silva, to the U.S. where he provided HCR approved training in food preparation. See Exhibit 16, HCR000181 (Mr. da Silva, second from the left, during a training session at the Philadelphia Mills (a.k.a. Franklin Mills)

Mall store. See Arrow.)

29. Mr. Pandya and HNT-C currently list seven (7) stores in the United States. See < https://www.hotntender.com/locations/>, last visited 7/20/2020 (Franklin Mills, 66th Ave,

Huntington Park, Collingdale, Aston, Oxford and New Britain).

30. When marketing its product to the consuming public, HNT-C consistently refers to the Brazilian origins and the Brazilian flavor of its product, for example:

● “The restaurant’s menu features chicken options with a Brazilian touch.” Chris

English, The Intelligencer, posted Dec 30, 2019, Exhibit 17A, HCR000149-150;

● “Founded in Brazil by Dany Levkovits in 2014 [sic, 1995], HNT Chicken operates

dozens of locations throughout the South American country.” Laura Smythe,

Philadelphia Business Journal, Dec 20, 2019, Exhibit 17B, HCR000147-148;

● “Brazilian fried chicken chain plans 50-plus Philadelphia-area locations,”

Bizjournals, Friday, 20 December 2019, Exhibit 17C, HCR000156-157;

● “Intrigued by the new concept, which is originally based in Brazil . . .We

discovered the Brazilian concept and it’s the type of approach to chicken that we

feel will be successful here,” Philly Grub, January 29, 2020, Exhibit 17D,

HCR000158-164;

● “Brazilian Fried Chicken Chain to Take Former Pizza Hut Locations . . . HNT

Chicken opened in Rio de Janeiro in 1995 and began opening locations in other

parts of Brazil in the following years.” Tom Sofield, Levittown Now.com, January

1, 2020, Exhibit 17E, HCR000165-167.

31. On Feb. 21, 2020, in preparation for entering the United States market, HCR has filed its own intent-to-use application, No. 88805376.

32. Mr. Pandya has made baseless accusations that HCR has breached the MOU and, based on an “in any termination scenario” clause in the MOU, Mr. Pandya now claims that HNT-C owns the Hot n’ Tender trademarks worldwide, except for South America and Portugal.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and, if sworn as a witness, I could and would testify thereto.

Dated this 9st day of September 2020 at Rio de Janeiro, Brazil.

/Dany Levkovits/ Dany Levkovits, Chief Executive Officer HCR FRANQUEADORA LTDA - EPP

EXHIBIT 1 – Original 1995 Signage

EXHIBIT 2 – Modernized Signage

EXHIBIT 3 EXHIBIT 4

EXHIBIT 5 – Logo design treatments

EXHIBIT 6A EXHIBIT 6B (before) (after)

EXHIBIT 7 EXHIBIT 8 (before) (after)

EXHIBIT 9 (after)

EXHIBIT 10 EXHIBIT 11 (before) (after)

Translation from Portuguese: Dany. Can you remove the refrigerator and soda machine from that wall for use by the Menuboard?

EXHIBITS 12A-12F - Six Job Descriptions 12A Assistant Manager - Shift Lead

12A (cont.)

12B Brand Ambassador

12B (cont.)

12C General Manager

12C (cont.)

12D Cashier/Drive Thru Cashier

12D (cont.0

12E Cleaning - Dishwasher

12E (cont.)

12F Team Member - Kitchen

12F (cont.)

EXHIBIT 13 Example of Checklist

EXHIBIT 14 Example of work schedule

EXHIBITS 15A-15B Uniforms/Layout of Store 15A 15B

EXHIBIT 16

EXHIBITS 17A – 17E “Brazilian” and “Brazilian Flavor” Advertised 17A – The Intelligencer

17B – Philadelphia Business Journal

17C – Bizjournals

17D – Philly Grub

17E – Levittown Now.com

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

HCR FRANQUEADORA LTDA - EPP Opposer-Plaintiff Opposition No. 91255211 (parent case) Opposition No. 91255212 v.

HNT CHICKEN, LLC Applicant-Defendant

DECLARATION OF SCOTT HOUTTEMAN

I, Scott Houtteman, declare as follows:

1. I am an attorney of record in this consolidated opposition and I am knowledgeable

about all documents and legal issues pertaining to this opposition.

2. I am also knowledgeable of the appearance of one of the stores owned by

Defendant, HNT CHICKEN, LLC (“HNT-C”), located at 66 South 3rd Street, Oxford,

Pennsylvania (“the Oxford Store”).

3. The attached Exhibit 1, a digital cell phone picture taken at my direction, is a true

and accurate representation of the Oxford Store and Exhibit 2 show exterior signage

detail of the Oxford Store.

I declare under penalty of perjury that the foregoing is true and correct and, if

sworn as a witness, I could and would testify thereto.

Dated this 25th day of August 2020 at Fairfax City, VA USA.

/Scott Houtteman/ Scott Houtteman

EXHIBIT 1 – Exterior Signage of Oxford Store

EXHIBIT 2 – Detail of Exterior Signage