ESTTA1066254 07/06/2020 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding

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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA1066254 Filing date: 07/06/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92068985 Party Defendant Beats Electronics, LLC Correspondence MICHAEL G KELBER Address NEAL GERBER & EISENBERG LLP 2 NORTH LASALLE STREET, SUITE 1700 CHICAGO, IL 60602 UNITED STATES Primary Email: [email protected] Secondary Email(s): [email protected], [email protected], fwest- [email protected] 312-269-8000

Submission Opposition/Response to Motion Filer's Name Andrea S. Fuelleman Filer's email [email protected], [email protected], [email protected], docket- [email protected] Signature /Andrea S. Fuelleman/ Date 07/06/2020 Attachments Beats Response to Motion to Strike.pdf(132606 bytes ) Exhibit A to Response Brief_Answer to Third Amended Petition and AMEN DED Affirmative Defense _ Cancellation 92068985 _ Reg. 4814905 (bw)_REDLINE.pdf(247537 bytes ) ExhibitB_ROA_App_219_Page1-30.pdf(2890435 bytes ) ExhibitB_ROA_App_219_Page31-60.pdf(2133658 bytes ) ExhibitB_ROA_App_219_Page61-85.pdf(1846737 bytes ) ExhibitB_ROA_App_319_Page1-30.pdf(2898156 bytes ) ExhibitB_ROA_App_319_Page-31-60.pdf(1862444 bytes ) ExhibitB_ROA_App_319_Page61-94.pdf(2577029 bytes )

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

BUZZ MEDIA, INC. ) ) Petitioner, ) Cancellation No. 92068985 v. ) ) BEATS ELECTRONICS, LLC , ) ) ) Respondent. )

BEATS’ RESPONSE IN OPPOSITION TO PETITIONER’S MOTION TO STRIKE BEATS’ AFFIRMATIVE DEFENSES

On June 16, 2020, Petitioner Buzz Media, Inc. filed a Motion to Strike the unclean hands

affirmative defense in Beats Electronics LLC’s (“Beats”) Third Amended Answer to the Petition

to Cancel, arguing that the pleaded conduct is unrelated to the issues in this proceeding. Beats’

unclean hands affirmative defense is based on two grounds: (Ground 1) Petitioner’s bad faith use

and adoption of a mark that is confusingly similar to Beats’ , , and marks, covered

by Reg. Nos. 4814904, 4814905 and 5520056, respectfully; and (Ground 2) Petitioner’s bad faith

conduct under the guise of a related company, Soho Beats, LLC (“Soho Beats”), in filing and

prosecuting App. Nos. 88/454,219 for and 88/454,319 for BEATS (the “Soho Beats

Applications”), which Petitioner knew were identical to Beats’ registered and BEATS

marks.

As to Ground 1, to streamline the prosecution of this proceeding and without conceding

the merits of Petitioner’s motion, Beats hereby requests leave to file an Amended Affirmative

Defense that removes the unclean hands defense based on Ground 1 (confusion with Beats’ prior

registrations). A copy of Opposer’s proposed Amended Affirmative Defense, showing the

proposed amendments in redline, is attached as Exhibit A.

As to Beats’ unclean hands affirmative defense based on Ground 2 (bad faith adoption of

the Soho Beats Applications), Petitioner’s bad faith and harassing conduct is central to the claims

at issue here, because it reveals Petitioner’s bad-faith motivation in litigating this case, and

should be considered in evaluating the merits of Petitioner’s Petition.

I. LEAVE TO AMEND UNCLEAN HANDS AFFIRMATIVE DEFENSE TO REMOVE GROUND 1

Trademark Rule 2.115 and Rule 15(a) of the Federal Rules of Civil Procedure provide

that a party to an inter partes proceeding may amend its pleading by consent of the adverse party or by leave of the Board. Fed. R. Civ. P. 15(a). “Amendments to pleadings should be allowed with great liberality at any stage of the proceeding . . . unless it is shown that entry of the proposed amendment would violate settled law or be prejudicial to the rights of any opposing parties.” Commodore Elecs. Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503, 1505 (TTAB

1993). Accordingly, when deciding to grant a leave to amend,he tBoard must consider whether there is any undue prejudice to the petitioner. Commodore , 26 USPQ2d at 1505.

The proposed Amended Affirmative Defense will not prejudice Petitioner because the amendments are consistent with the relief sought by Petitioner’s Motion to Strike. In addition, the proposed Amended Affirmative Defense does not change the opesc of discovery, rather, it narrows it. Microsoft Corp. v. Qantel Business Systems Inc., 16 USPQ2d 1732, 1733-34 (TTAB

1990) (proceeding still in the discovery stage and no undue prejudice shown). Therefore, Beats respectfully requests that it be given leave to file the attached Amended Affirmative Defense.

II. THE BAD FAITH ACTIONS OF PETITIONER’S RELATED COMPANY GIVE RISE TO AN UNCLEAN AFFIRMATIVE DEFENSE.

Petitioner’s argument that the actions by Soho Beats should be stricken as irrelevant are unfounded and premature. Beats has properly asserted an unclean hands affirmative defense by pleading that Petitioner’s related company had engaged in bad faith conduct directed to Beats’

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trademark rights, and that such misconduct is pertinent to the issues in this proceeding as it relates to Petitioner’s motivation in litigating its claims against Beats. See 25 TTABVUE at 18

(“on information and belief, Petitioner’s President, Khalid Mian, is a member of an entity called

Soho Beats, LLC… with full knowledge of Beats’ rights in and to its BEATS and b logo Marks,

Mr. Mian, on behalf of Soho Beats, LLC [signed the Soho Beats Applications that are] identical and confusingly similar to many of Beats’ registrations for its BEATS and b logo Marks…Mr.

Mian’s conduct in filing and prosecuting the Soho Beats Applications further establishes

Petitioner’s bad faith”).

Petitioner’s argument that Soho Beats is not a party to this proceeding and that Beats is

“jumping to improper conclusion” by alleging that Soho Beats is a related company is not a basis to strike this affirmative defense. At the motion to strike stage, the Board does not consider the merits of the claims, but only considers whether the pleading is sufficient to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);

Libertyville Saddle Shop Inc. v. E. Jeffries & Sons, Ltd., 22 USPQ2d 1594, 1597 (TTAB 1992).

Here, Petitioner objects to Beats’ unclean hands defense alleging that Petitioner and Soho Beats are not “related companies,” and argues that Soho Beats’ misconduct is irrelevant to the claims at issue in this cancellation proceeding. These arguments are premature because they go to the merits of the claim.

Whether or not a company is a “related company” under the meaning of the Lanham Act is a fact question that requires an analysis of fact-intensiveconsiderations focusing on who controls exercise over the nature and quality of the goods or ervicess under the mark. See TMEP

§1201.03; 15 U.S.C. § 1127. The Board has already explained that the determination of related companies is a matter for final hearing, and not one that should be decided in a motion to dismiss. See 21 TTABVUE at 8 (“Respondent’s argument [that Beats Music, LLC and -3-

Respondent are related companies] goes to the merits of the claim. When determining a motion

to dismiss, all of the plaintiff’s well-pleaded allegations must be accepted as true. Whether

Petitioner can prevail is a matter for final hearing or summary judgment, after the parties have

had an opportunity to submit evidence.”).

Beats has adequately pleaded that Petitioner and Soho Beats are related companies. The

fact that Mr. Mian is President and CEO (and perhaps the sole officer) of Petitioner and is also

Soho Beats’ managing member and that he is handling trademark matters for both of them, if not

establishing, strongly suggests that Mr. Mian controls the operations for both companies,

rendering them related. See In re Hand, 231 U.S.P.Q. 487, 488 (TTAB 1986) (where a related

company user is a wholly-owned subsidiary of applicant, sufficient control by applicant with use inuring to applicant's benefit may be assumed);In re Wella A.G., 5 USPQ2d 1359, 1361 (TTAB

1987) (finding that applicant owned substantially all of the stock of the registrant and that the applicant, thus controlled the activities of the registrant, including the selection, adoption and use of the trademarks). Accepting Beats’ well-pleaded allegations as true, the Board should find that that Petitioner and Soho Beats are related companies, such that the actions of one is relevant to the actions of the other, rendering this affirmative defense properly pleaded.

Beats’ allegations of common ownership can, alone, support a finding that companies are related, particularly where the record shows that one controls the activities and operations of the other, such as the selection, adoption and use of the trademarks. See TMEP §§ 1201.07(b)(ii) and

1201.03(b). The cases cited by Petitioner are easily distinguishable as they each involve decisions on the merits made after the record had been fully developed and briefed, where, as here, the only consideration is whether Beats has properly pleaded a plausible defense, which it has. In particular, Petitioner cites Great Seats, Ltd. v. Great Seats, Inc., 84 USPQ2d 1235, 1243

(TTAB 2007), which resolved a cancellation proceeding on the merits after the case had been -4-

fully briefed. This decision was based on the totality of the evidence of record including deposition and trial testimony. In Great Seats, the record was lacking evidence as to whether one company exercised control over the other, and on that basis, the Board determined that they were not related under the meaning of the Lanham Act. Similarly, the Board in In re Raven Marine,

Inc., 217 USPQ 68, 69 (TTAB 1983) found that the trial record failed to establish that applicant controls or is controlled by the user of the mark, and that neither one is the subsidiary of the other. Both of these cases illustrate that common ownership is an important factor in determining whether they are related, and that the exercise of control between those two companies needs to be developed on the record to rule on the issue. Here, the precise relationship and percentage of ownership of Soho Beats by Petitioner need not be established at the pleading stage, rather this will be developed during discovery.

But beyond the commonalities of Petitioner’s and Soho Beats’ officers, Beats’ pleaded additional factual support to underpin its allegations that Soho Beats is related to Petitioner. In support of its allegations that Petitioner exercises control over Soho Beats, Beats also pleaded that the arguments filed by Mr. Mian in this cancellation proceeding are identical and similar to many of the same arguments he asserted in the Office Action responses filed in connection with the Soho Beats Applications. For example, the Office action responses that Mr. Mian filed in support of the Soho Beats Applications (which were refused based on a likelihood of confusion with Beats’ prior rights) are premised on the argument that Beats’ trademark registrations and pending applications should be invalidated because they were purportedly obtained and/or maintained fraudulently. Mr. Mian argues that since the acquisition of Beats by Apple, Inc.,

Beats purportedly ceases to exist as a business entity, and that the maintenance of Beats marks

(i.e. through declarations signed by Employee-Attorneys of Apple, Inc., who are allegedly impersonating to be acting on behalf of Beats), is purportedlyfraudulent. See Feb. 21, 2020 -5-

Office action response in support of SN 88/454,219 and 88/454,319, attached hereto as Exhibit

B. Petitioner alleges these same fraud-by-impersonation arguments in connection with the

instant cancellation proceeding in at least Count 1 (Fraud). See 22 TTAVBUE at 4-9. In support

of these unusual arguments, Mr. Mian relies on many of the same exhibits in both the instant

cancellation and in the Soho Beats Office actions, which further suggests that the Petitioner and

Soho Beats are closely related and under the same control.

Moreover, the Board has held that a plaintiff’s assertion of the same fraud arguments in

multiple proceedings (either against the defendant or other unrelated parties) constitutes bad faith

as it shows the plaintiff’s propensity to abuse the Board's procedures in its attempt to harass third

parties. See NSM Resources Corp.; and Huck Doll LLC v. Microsoft Corp., 113 U.S.P.Q.2d

1031, 1037 (TTAB 2014) (explaining atth the formulaic nature of petitioners' approach, which

involves repeated assertions offraud, alleging a highly similar set of facts to support claims,

none actually rising to the level of fraud, constitutes badth, fai harassing conduct); Central

Manufacturing Inc. v. Third Millennium Technology Inc., 61 U.S.P.Q.2d 1210, 1215 (TTAB

2001) (finding that apro se plaintiff’s conduct of engaging in a pattern of submittingings fil based on false statements and material misrepresentation withhe t Board constituted bad faith conduct). Similarly, actions that are made with an improper rpose, pu such as to harass or to cause unnecessary delay or needless increase in he t cost of litigation, can also constitute bad faith. See Carrini Inc. v. Carla Carini S.R.L., 57 U.S.P.Q.2d 1067, 1071-72 (TTAB 2000)

(finding that litigating a case in a hostile, time-consumingshion fa by, for example filing an inordinate numbers of papers with the Board and engaging inuly und contentious posturing that unnecessarily delayed the case and increased the cost of theoceedings, pr rose to the level of harassment). Here, Beats has properly pleaded bad faith byging alle that that Mr. Mian’s conduct in filing and prosecuting the Sohoeats B Applications constitutes harassment towards Beats. -6-

Beats has also properly pleaded that Soho Beats’ misconduct is relevant to the claims at issue in this proceeding. Mr. Mian’s after-the-fact conduct in adopting the marks in the Soho

Beats Applications, which he knew were confusingly similar to Beats’ marks at the time he applied to register the marks, constitutes bad faith behavior that could only have been intended to harass Beats. The misconduct giving rise to an unclean hands defense does not need to predate the filing of the proceeding in which the defense is asserted, as Petitioner suggests without citing any authority. See Hall v. Cole, 93 S.Ct. 1943 (1973) (bad faith is not limited to instancesn i which a complaint is filed in bad faith, but that conduct ine course th of litigation may also constitute bad faith); Pom Wonderful LLC v. Welch Foods, Inc., 737 F. Supp. 2d 1105 , 1110

(C.D. Cal. 2010) (“the relevantinquiry is not [whether] the plaintiff’s hands are dirty, but

[whether] he dirtied them in acquiring the right he now asserts, or [whether] the manner of dirtying renders inequitable the assertion of such rights against the defendants.”).

Indeed, the timing of the filing of the Soho Beats Applications is material, as it further evidences Petitioner’s improper motivations to harass Beats and needlessly increase the cost of litigation. On behalf of Soho Beats, Mr. Mian filed the Sohoeats B Applications on May 31,

2019 -- one day after Beats filed its reply in support of itsotion m to dismiss the fraud andvoid ab initio claims in Petitioner’s Second Amended Petition to Cancel.s suggests Thi that

Petitioner, who at this point waskeenly aware of Beats’ trademark rights, was not satisfied with the direction of the cancellation proceedings and took additional steps to harass Beats by broadening the scope of its accusations against Beats by ting attemp to create standing to challenge more of Beats’ trademarks where none exists. Intion addi to filing the Soho Beats

Applications, Soho Beatslaunched the website athttp://sohobeats.me/ , which has been “coming

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soon” for over a year, and purports to offer headphones, earphones, and speakers, which are

same types of products that Beats offers and sells under its identical and BEATS marks.

In sum, the similarities between Petitioner’s fraud arguments in this proceeding and the

fraud arguments alleged in the Soho Beats Applications cannot be coincidental. Rather, on

information and belief, Petitioner created Soho Beats and adopted the Soho Beats Applications in bad faith in a concerted effort to harass Beats and needlessly increase the cost of litigation. This conduct is pertinent to the claims at issue in this proceeding as it suggests that Petitioner is filed the present Petition to Cancel in bad faith, rendering Beats’ affirmative defense appropriate.

III. CONCLUSION

WHEREFORE, Beats respectfully requests that it be given leave to file the attached

Amended Affirmative Defense which withdraws its unclean affirmative defenses based on

Ground 1 (confusion with Beats’ prior registrations), and that the Board deny Petitioner’s Motion to Strike directed to Beats’ unclean hands affirmative based on Ground 2 (bad faith adoption of the Soho Beats marks).

Respectfully submitted,

By: /Michael G. Kelber/ One of the Attorneys for Respondent, Beats Electronics, LLC Michael G. Kelber Andrea S. Fuelleman Date: July 6, 2020 NEAL, GERBER & EISENBERG LLP Two North LaSalle Street, Suite 1700 Chicago, IL 60602-3801

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CERTIFICATE OF SERVICE

I, Andrea S. Fuelleman, state that I served a true and correct copy of the foregoing

Respondent’s Opposition to Petitioner’s Motion Strike Affirmative Defenses upon:

Khalid Mian Buzz Media, Inc. 1245 Hewlett Plaza, # 433 Hewlett, New York 11557 [email protected]

via email on July 6, 2020.

/Andrea S. Fuelleman / Andrea S. Fuelleman

30864529.1

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

IN RE: TRADEMARK REGISTRATION NO. 4814905

Buzz Media, Inc.

Petitioner,

v. Cancellation No.: 92068985

Beats Electronics, LLC.

Respondent.

BEATS ANSWER TO THIRD AMENDED PETITION FOR CANCELLATION AND AMENDED AFFIRMATIVE DEFENSE

Respondent, Beats Electronics, LLC (“Beats”), through its attorneys, answers Buzz

Media’s Third Amended Petition For Cancellation filed by Petitioner Buzz Media on March 27,

2020 in the above proceeding as follows:

1. The petitioner, Buzz Media, Inc., a corporation registered under the laws of the State of New York, seeks cancellation of Trademark Registration No. 4814905, regarding all goods/services in all the Classes (International Classes 9, 38, 41 & 42) on the grounds of 3 Counts of FRAUD, (2) LACK OF OWNERSHIP OF THE MARK, (3) MARK NOT IN USE IN COMMERCE AS OF THE DATE OF THE STATEMENT OF USE and ABANDONMENT.

RESPONSE: Beats admits that Petitioner purports to seek to cancel Trademark Registration

No. 4814905 on the basis of: (1) fraud, (2) lack of ownership of the mark, (3) mark not in use in commerce as of the statement of use date, and (4) abandonment, but denies that any of the aforesaid claims have merit. Beats is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

1 2. For the purposes of 37 C.F.R. § 2.112(a) Registration No. 4814905's owner's information appears as under on http://tsdr.uspto.gov:

Owner's Name: Beats Electronics, LLC (Delaware Limited Liability Company) Address: 8600 Hayden Place, Culver City, CA, 90232, United States. Attorney of Record: Kimberly Eckhart Attorney's Email: [email protected]

RESPONSE: Admitted.

3. The petitioner filed Trademark Application Serial Number: 87372940 on March 15, 2017 for registration of mark "B". [Exhibit 1]

RESPONSE: Beats admits that Exhibit 1 appears to include a copy of what appears to be the trademark application for Application Serial Number 87372940, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

4. On December 12, 2017, Hon. Examining Attorney issued an Office Action thereby finally refusing petitioner's application on the ground of likelihood of confusion with the mark in U.S. Registration No. 4814905 (as well as Registration No. 4814904 that has been challenged in Cancellation Number 92068983). [Exhibit 1]

RESPONSE: Beats admits that Exhibit 1 appears to include a copy of appears to be an Office

Action dated December 12, 2017 that alleges a likelihood of confusion with U.S. Registration

No. 4814905 and 4814904, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

2 5. Petitioner's Request for Reconsideration after Final Action was denied on June 26, 2018. [Exhibit 1]

RESPONSE: Beats admits that Exhibit 1 appears to include a copy of what appears to be the decision denying Petitioner’s Request For Reconsideration dated June 26, 2018, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

6. Concurrent with the RFR, the petitioner filed an ex parte appeal before The Trademark Trial and Appeal Board that's pending as Proceeding Number: 87372940. [Exhibit 1-a]

RESPONSE: Beats admits that Exhibit 1-a appears to be a copy of the TTABVUE page for

Application No. 87372940 indicating that an appeal is pending, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

7. Petitioner has standing to file the instant petition because its Trademark Application Serial Number: 87372940 has been refused based on respondent's Registration No. 4814904.

RESPONSE: Beats is without knowledge or information sufficient to form a belief about the truth of the allegations of this paragraph, and therefore denies the same.

8. The respondent, Beats Electronics LLC, the owner of Registration No. 4814905, is a limited liability company that was registered in the State of Delaware on 8/10/2009. [Exhibit 2]

3 RESPONSE: Admitted.

9. Beats Music LLC is another limited liability company that was registered in the State of Delaware on 10/4/2011. [Exhibit 3]

RESPONSE: Admitted.

10. Beats Music, LLC used to offer its streaming music service by the name Beats Music on its website www.beatsmusic.com using the mark in Registration No. 4814905. The website carried a clear copyright notice that the site belonged to Beats Music, LLC. [Exhibit 4]

RESPONSE: Beats admits that Beats Music, LLC offered music streaming services under the name Beats Music on the website www.beatsmusic.com, which displayed the mark in

Registration No. 4814905. Beats admits that Exhibit 4 appears to be a screenshot of the www.beatsmusic.com website, and bears a copyright notice for Beats Music, LLC. Beats denies the remaining allegations of this paragraph.

11. Beats Music's mobile app was also available at the App Store on iTunes. The App Page displayed the mark in Registration No. 4814905 along with the owner's information as Beats Music by Beats Music, LLC. [Exhibit 5]

RESPONSE: Beats admits that the Beats Music mobile app was available at the App Store at some point in time, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

4 12. On 10/09/2013 the respondent Beats Electronics, LLC filed Trademark Application Serial Number 86087564 with filing basis 1 (b) - ITU for registration of the mark that was actually owned and being used by Beats Music, LLC and that's now the subject of Registration Number 4814905.

RESPONSE: Beats admits that on October 9, 2013, it filed Trademark Application Serial

Number 86087565 based on an intent to use. Beats denies the remaining allegations of this paragraph.

13. On May 28, 2014, Apple, Inc. announced that it had agreed to acquire both Beats Electronics, LLC – the maker of Beats headphones, speakers and audio software and Beats Music, LLC – a subscription streaming music service. [Exhibit 6]

RESPONSE: Beats admits that on May 28, 2014, Apple Inc. issued a press release announcing that it has plans to acquire Beats Music and Beats Electronics, and that Exhibit 6 appears to be a copy of that press release. Beats denies the remaining allegations of this paragraph.

14. In his announcement, Apple’s CEO acknowledged that Beats Electronics, LLC and Beats Music, LLC were two separate businesses. He said, "…… Apple is acquiring Beats Music and Beats Electronics, two fast-growing businesses…….". [Exhibit 7]

RESPONSE: Beats admits that the article depicted in Exhibit 7 states "…… Apple is acquiring

Beats Music and Beats Electronics, two fast-growing businesses…….", but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

15. While the process of acquisition was still underway, in a letter to employees regarding the deal, Apple’s CEO, Tim Cook revealed his post-acquisition plans as under:

5 (a) Beats co-founders and music industry pioneers Jimmy Iovine and Dr. Dre would join Apple, Inc. along with their team of employees. [Exhibit 7]

(b) Beats Music team, including Jimmy Iovine and Dr. Dre, would be integrated into the services team of Eddy Cue (an officer of Apple, Inc.) while Beats’ headphones and speakers would fall under the domain of Phil Schiller (an officer of Apple, Inc.). [Exhibit 7]

RESPONSE: Beats is without knowledge or information sufficient to form a belief about the truth of the allegations of this paragraph, and therefore denies the same.

16. According to an announcement on respondent's website www.beatsbydre.com, that was taken over by the acquirer Apple, Inc., the above mentioned acquisition of the respondent by Apple, Inc. was finalized in July 2014. [Exhibit 8]

RESPONSE: Beats admits that the announcement depicted in Exhibit 8 states that Beats was acquired by Apple Inc. in July 2014, but is without knowledge or information sufficient to form a belief about the truth of the remaining allegations of this paragraph, and therefore denies the same.

17. The aforementioned acquisition was immediately followed by a full scale merger of the newly acquired wholly owned subsidiaries Beats Electronics, LLC (the respondent) and Beats Music, LLC (the actual owner and user of the mark in Registration No. 4814905) in to the parent company, Apple, Inc. [Exhibit 9]

RESPONSE: Denied.

18. As a result of respondent’s merger into Apple, Inc., respondent Beats Electronics, LLC’s HR department was completely abolished. Most of respondent's employees were formally hired and employed by Apple, Inc., whereas the rest of employees were laid off.

6 RESPONSE: Denied.

19. As a result of respondent’s merger into Apple, Inc., respondent Beats Electronics, LLC’s Payroll was completely abolished.

RESPONSE: Denied.

20. As a result of respondent’s merger into Apple, Inc., both the ownership and administration of respondent Beats Electronics, LLC’s website www.beatsbydre.com was formally taken over by the parent company Apple, Inc. and its copyright notice was changed from © Beats Electronics LLC. All Rights Reserved [Exhibit 10] to Copyright © 2016 Apple Inc. - All rights reserved [Exhibit 11]

RESPONSE: Beats admits that the copyright notice on www.beatsbydre.com was changed to

Apple Inc. at some point of time, but denies the remaining allegations of this paragraph.

21. As a result of respondent’s merger into Apple, Inc., the planning, designing, development, production and marketing of respondent's products was arbitrarily and completely taken over by the parent company Apple, Inc. who exercised unrestricted control to the absolute exclusion of the respondent.

RESPONSE: Denied.

22. The demise and discontinuation of Beats Electronics, LLC mentioned above was admitted by Apple, Inc. in a class action titled Deonn Morgan v Apple, Inc. in the U.S. District Court, Northern District Of California (Case 3:17-cv-05277). The plaintiffs brought that action against Apple, Inc., without impleading the respondent Beats Electronics, LLC, on the ground that POWERBEATS (a product that used two trademarks owned by Beats Electronics, LLC - the character mark POWERBEATS,

7 Trademark Registration # 4937568 and the design mark , Trademark Registration # 3881677) was defective and not as advertised [Exhibit 12]. Since a trademark can only be used by its owner or a related company whose use of the mark is controlled by the owner of the trademark, therefore, Beats Electronics, LLC had not just an interest in the outcome of that legal action, rather, Beats Electronics, LLC was the primary and necessary party. However, the sole defendant Apple, Inc., in its Certificate of Interested Entities [Exhibit 13], declared as under:

Pursuant to Civil Local Rule 3-15, Defendant Apple Inc., by and through its undersigned attorney also certifies as of this date, other than the named parties, there is no such interest to report.

RESPONSE: Beats is without knowledge or information sufficient to form a belief about the truth of the allegations of this paragraph, and therefore denies the same.

23. Apple, Inc.’s declaration, referred to in the preceding paragraph, to the effect that it was the sole interested party in the matter of a trademark that was owned by the respondent Beats Electronics, LLC is a clear admission by the respondent’s parent company Apple, Inc. that Beats Electronics, LLC had practically ceased to exist as an active and independent legal entity.

RESPONSE: Beats is without knowledge or information sufficient to form a belief about the truth of the allegations of this paragraph, and therefore denies the same.

24. As a result of respondent’s merger into Apple, Inc., the respondent Beats Electronics, LLC became dead and discontinued as a business entity and it was reduced to a mere name with no Operating Agreement and no Managing Body of its own. Consequently, the respondent was legally and factually unable to (1) make its own decisions; (2) appoint or revoke the appointment of attorneys; (3) use or license the use of its trademarks and to (4) control the use of its trademarks by a licensee or a related company.

RESPONSE: Denied.

8 25. While the respondent Beats Electronics, LLC ceased to exist as a business entity, it still had a few valuable Trademarks and Pending Trademark Applications; a committed Fan Base of the legendary rapper Dr. Dre and a large consumer base which still knew Beats Electronics, LLC as the genuine and the only manufacturer of the Beats and Dr. Dre brands of audio equipment like headphones, earphones and speakers etc.

RESPONSE: Beats admits that it continues to own trademarks and pending trademark applications, which are valuable assets, and is and has been privileged to enjoy a committed fan base. Beats denies the remaining allegations of this paragraph.

26. To cash in on the respondent Beats Electronics, LLC’s intellectual assets and consumer base, the parent company, Apple, Inc., knowing that it was illegal and unethical, started using respondent Beats Electronics, LLC’s name and its trademarks like a rubber stamp on its own products which were and which continue to be designed, developed, produced and marketed by Apple, Inc. itself under its exclusive control and to the complete exclusion of the respondent Beats Electronics, LLC.

RESPONSE: Denied.

27. Further, to secure its illegal and unethical stream of revenue, Apple, Inc. unilaterally and arbitrarily took over the control and management of respondent's intellectual properties including its trademarks and trademark applications.

RESPONSE: Denied.

28. On 12/15/2014, Thomas R. La Perle, an Employee-Attorney of respondent’s parent company Apple, Inc., acting under instructions of his employer Apple, Inc. and falsely pretending to be acting as the Assistant Secretary of the respondent Beats Electronics, LLC, signed and submitted PTO Form 1581 - Request for Extension of Time to File a Statement of Use in Trademark Application Serial Number 86087564. The USPTO was pleased to extend the time to file the statement of use to June 17, 2015. 9 RESPONSE: Beats admits that Thomas R. La Perle is the Assistant Secretary of Beats

Electronics, LLC, and is also an employee and attorney of Apple Inc. Beats further admits that

Mr. La Perle signed and submitted PTO Form 1581 - Request for Extension of Time to File a

Statement of Use in Trademark Application Serial Number 86087564 on behalf of Beats

Electronics, LLC on December 15, 2014. Beats admits that the USPTO granted Beats’ Request for Extension. Beats denies the remaining allegations of this paragraph.

29. Acting under instructions of the officers and directors of Apple, Inc., on 3/18/2015 Thomas R. La Perle, the above mentioned Employee-Attorney of Apple, Inc. signed and filed PTO Form 2196 - Revocation of Attorney and/or Appointment of Attorney in Trademark Application Serial Number 86087564 thereby revoking the power of the then Attorney of Record and appointing Kimberly Eckhart, again an Employee-Attorney of Apple, Inc., as the new Attorney of Record. He, further, appointed seven Employee- Attorneys of Apple, Inc. including himself as Other Appointed Attorneys and clearly stated that they were all listed in their capacity of being employees of Apple, Inc.

RESPONSE: Beats admits that Mr. La Perle signed and filed PTO Form 2196 - Revocation of

Attorney and/or Appointment of Attorney in Trademark Application Serial Number 86087565 on March 18, 2015, appointing Kimberly Eckhart as an Attorney of Record for Application

Serial Number 86087564. Beats admits that Ms. Eckhart is an employee and attorney of Apple

Inc. Beats denies the remaining allegations of this paragraph.

30. Thomas R. La Perle purportedly signed and submitted the PTO Form 2196 - Revocation of Attorney and/or Appointment of Attorney mentioned in the previous paragraph as Assistant Secretary of Beats Electronics, LLC. However, that assumption of authority was a willful and deliberate false pretension and an act of Fraud by Impersonation as, at the time, the respondent Beats Electronics, LLC was a nominal entity that had no Operating Agreement and no duly appointed Officer or Manager. 10 RESPONSE: Beats admits that Thomas R. La Perle signed and submitted the PTO Form 2196

- Revocation of Attorney and/or Appointment of Attorney mentioned in the previous paragraph as Assistant Secretary of Beats Electronics, LLC, but denies the remaining allegations in this paragraph.

31. Regardless of the legality and validity of Thomas R. La Perle’s authority, signature and submission by an Assistant Secretary was invalid and of no legal effect in view of TMEP §611.06(g) that provides as under:

Generally, a signatory identified as "manager," "member," "principal," or "owner" may be presumed to have the authority to sign on behalf of a domestic or foreign limited liability company. In addition, anyone with a corporate-officer-type title, such as "President" or "Chief Executive Officer," may sign.

RESPONSE: Denied.

32. According to the record of the USPTO, the new Attorney of Record, Kimberly Eckhart, mentioned in paragraph 29 above, was appointed in her capacity of being an employee of Apple, Inc. – a company that was not a law firm. An attorney’s claim that she was acting in her capacity of being an employee of Apple, Inc. was a clear and unambiguous admission that she was getting instructions from her employer, i.e. Apple, Inc.

RESPONSE: Beats admits that Kimberly Eckhart was appointed the new Attorney of Record for Beats’ trademark applications, but denies the remaining allegations of this paragraph.

33. Falsely pretending to be authorized by the respondent Beats Electronics, LLC, on May 21, 2015, the above mentioned Attorney of Record, Kimberly Eckhart, acting under instructions of the officers and directors of Apple, Inc., filed Statement of Use alleging use of the mark in commerce, whereas, the mark in question was not in use on any of the identified goods/services in any International Class alleged in the Statement of Use as of

11 the date of the Statement of Use or any time after till June 17, 2015 – the extended deadline for filing the Statement of Use.

RESPONSE: Beats admits that Kimberly Eckhart filed the Statement of Use on May 21, 2015, but denies the remaining allegations of this paragraph.

34. Along with the Statement of Use mentioned in the preceding paragraph, the Attorney of Record also filed the required specimens. However, instead of submitting specimens showing use by the respondent Beats Electronics, LLC or its related company, she (1) submitted specimens showing use by Beats Music, LLC; (2) elaborately described each specimen as a screenshot of the website of Beats Electronics, LLC and (3) signed a false declaration of truth.

RESPONSE: Beats admits that its Attorney of Record filed a Statement of Use and the required specimens, but denies the remaining allegations in this paragraph.

COUNT 1

FRAUD Count 1

35. On May 21, 2015, the newly appointed Attorney of Record, Kimberly Eckhart, acting under instructions from the officers of the parent company, Apple, Inc., filed (1) Request to Divide, (2) Statement of Use and (3) Specimens and signed the required declaration/verification, knowingly and willfully misrepresenting to the USPTO that she was acting under instructions from and on behalf of the respondent, Beats Electronics, LLC. But for this willful misrepresentation and deliberate act of deception, the USPTO (1) would not have entertained the Request to Divide, Statement of Use & Specimens and (2) would not have issued the Registration Number 4814905.

RESPONSE: Beats admits that Kimberley Eckhart was the appointed Attorney of Record for the application that matured into Registration Number 4814905, and that on May 21, 2015,

Kimberly Eckhart filed a Request to Divide, a Statement of Use and supporting Specimens of

12 use, and signed the required declaration/verification, but denies the remaining allegation of this paragraph.

COUNT 2

FRAUD Count 2

36. Regardless of the validity of the filer's authority, the allegation of use contained in the Statement of Use filed on May 21, 2015 was false & fraudulent and a deliberate act of deception on the USPTO. The mark in question was not in use on any of the identified goods/services in any International Class alleged in the Statement of Use as of the date of the Statement of Use or any time after till June 17, 2015 – the extended deadline for filing the Statement of Use. But for this fraudulent misrepresentation and willful act of deception, the USPTO would not have issued the Registration Number 4814905.

RESPONSE: Beats has responded to the allegations set forth in this count by filing a Motion to

Strike, see 23 TTABVUE, and therefore a further response is premature.

COUNT 3

FRAUD Count 3

37. Paragraph 34 of this petition is incorporated here by reference.

RESPONSE: Beats repeats and realleges the responses in Paragraph 34, as set forth above, as if fully set forth herein.

38. The specimens filed on behalf of the respondent and the descriptions of the specimens under signed declaration of truth, claiming ownership of the marks shown in the specimens, constitute fraudulent and willful misrepresentation and an act of deception on USPTO as detailed in the sub-paragraphs a – d below. Since specimens are required 13 elements of a Statement of Use, therefore, but for this willful misrepresentation and deception, the USPTO would not have issued the Registration Number 4814905.

RESPONSE: Denied.

(a) In class 9, the respondent submitted a screenshot of Beats Music on the App Store on iTunes and described it as a screenshot of applicant's website bearing the mark, whereas the title on the specimen clearly reads as Beats Music by Beats Music, LLC.

RESPONSE: Beats admits that the Class 9 specimen submitted in connection with the application that matured into Registration Number 4814905 was described as “screenshot of applicant’s website bearing the mark,” but denies the remaining allegations of this paragraph.

(b) In Classes 38 & 41, the respondent filed a screenshot of the webpage at www.beatsmusic.com/pricing and described it as screenshot of applicant's website showing the mark as used in connection with the services, whereas the specimen carries a clear copyright notice at the bottom that says, Copyright 2014 Beats Music, LLC.

RESPONSE: Beats admits that the Class 38 and 41 specimens submitted in connection with the application that matured into Registration Number 4814905 were described as “screenshot of applicant’s website bearing the mark,” but denies the remaining allegations of this paragraph.

(c) In class 42, the respondent submitted a part of a webpage and described it as a screenshot of applicant's website showing the mark as used in connection with the services. The specimen doesn't show the URL but contains 5 occurrences of the phrase "Beats Music" including a broad & bold caption. This specimen unmistakably relates to Beats Music that's the property and service of Beats Music, LLC as shown by the other two specimens.

14 RESPONSE: Beats admits that the Class 42 specimen submitted in connection with the application that matured into Registration Number 4814905 was described as “screenshot of applicant’s website bearing the mark,” but denies the remaining allegations of this paragraph.

(d) Respondent's explicit, clear and unambiguous description of all the specimens as screenshots of applicant's website completely rules out any presumption or claim that the mark was being used by Beats Music, LLC as a licensee or a related company.

RESPONSE: Denied.

COUNT 4

LACK OF OWNERSHIP OF THE MARK

39. As detailed in paragraphs 10, 11 and 38 above which are incorporated here by reference, the respondent did not own the mark in Registration No. 4814905. Instead, it was owned and used by Beats Music, LLC that was neither a licensee nor a related company of the respondent. Registration No. 4814905 is void ab initio because the respondent lacked ownership of the mark

RESPONSE: Beats repeats and realleges the responses in Paragraph 10, 11 and 38, as set forth above, as if fully set forth herein. Beats denies the remaining allegations in this paragraph.

COUNT 5

MARK NOT IN USE IN COMMERCE AS OF THE STATEMENT OF USE

40. As mentioned in paragraph 36 above, the mark in Registration No. 4814905 was not in use on any of the identified goods/services in any International Class alleged in the Statement of Use as of the date of the Statement of Use or any time after till June 17, 2015 – the extended deadline for filing the Statement of Use.

RESPONSE: Beats has responded to the allegations set forth in this count by filing a Motion to

Strike, see 23 TTABVUE, and therefore a further response is premature.

15 41. Apart from the ground of Fraud alleged as “Count 2: FRAUD” in paragraph 35 above, that is based on respondent's willful, fraudulent and deceptive misrepresentation, the mere non-use of the mark, mentioned in the preceding paragraph, itself renders a registration void ab initio.

RESPONSE: Beats has responded to the allegations set forth in this count by filing a Motion to

Strike, see 23 TTABVUE, and therefore a further response is premature.

COUNT 6

ABANDONMENT

42. Since the filing of the Statement of Use filed on May 21, 2015 to date, the mark in Registration No. 4814905 has never been used by the respondent Beats Electronics, LLC or its related company on any of the identified goods/services in any International Class included in the registration. Further, there is not the least evidence available to suggest that the respondent ever had intent to start using the mark.

RESPONSE: Denied.

43. Three years of non-use with intent not to resume the use creates prima facie evidence of abandonment under The Lanham (Trademark) Act (15 U.S. Code § 1127). Hence, the Registration No. 4814905 merits cancellation on the ground of abandonment.

RESPONSE: Beats admits three years of non-use with intent not to resume the use creates prima facie evidence of abandonment under the Lanham (Trademark) Act (15 U.S. Code §

1127, but denies the remaining allegation of this paragraph.

16 AMENDED AFFIRMATIVE DEFENSE: UNCLEAN HANDS

Petitioner’s claims, and the relief they seek, are barred, in whole or in part, by the doctrine of unclean hands. Upon information and belief, and as further detailed herein,

Petitioner knowingly infringed Beats’ Registration 4814904 for the mark ,

Registration 4814905 for the mark , and Registration No. 5520056 for the mark

(“b Logo Marks”), in breach of federal trademark law.

The applications that resulted in Registration Nos. 4814904 and 4814905 were filed on

October 9, 2013, and the application that resulted in Registration No. 5520056 was filed on

October 7, 2015, years before the filing date of, and claimed first use date of Petitioner’s

Application No. 87372940 (the “Subject Application”).

Beats Registrations Nos. 4814904, 4814905 and 5520056 cover highly related and complementary goods and services to those covered in the Subject Application. Tellingly, the

USPTO cited Registration Nos. 4814904 and 4814905 against the Subject Application on the basis of a likelihood of confusion. (See Exhibits 1(b) and 1(c) to Amended Petition to Cancel).

Beats (including through its related companies) has made, and continues to make use of its b

Logo Marks as depicted in Exhibit A, which are screen shots from iTunes, YouTube, Twitter, and Facebook. On information and belief, Petitioner has constructive and actual knowledge of

Beats prior rights in its b Logo Marks when it filed this instant proceeding.

In willful disregard of Beats prior use and registration of its b Logo Marks, Petitioner applied to register, commenced use of, and continues to use, a confusingly similar mark for

17 highly related and complementary goods and services. Additionally, as evidenced in specimen of record for the Subject Application, Petitioner displays the triangular play symbol in red:

, which is highly similar to Beats’ mark, which reinforces the potential for confusion. Such use constitutes infringement of Beats’ trademark rights in its b logo Marks.

Having committed these actions in bad faith, Petitioner cannot now bring this petition to cancel

Beats registration.

Moreover, on information and belief, Petitioner’s President, Khalid Mian, is aOn information and belief, Petitioner’s President and CEO, Khalid Mian, is the managing member of an entity called Soho Beats, LLC. On May 31, 2019, with full knowledge of Beats’ rights in and to its BEATS and b logo Marks, Mr. Mian, on behalf of Soho Beats, LLC, signed U.S.

Trademark Applications Nos. 88454319 for BEATS and 88454219 for (the “Soho Beats

Applications”). Attached hereto as Exhibit BA are copies of the Soho Beats Applications signed by Mr. Mian. The Soho Beats Applications were both filed based on an intent to use the marks with “audio speakers; Batteries and battery chargers; earphones; headphones; virtual reality headsets; game headphones” in Class 9. These goods are identical and confusingly similar to the

Class 9 goods covered by many of Beats’ registrations for its BEATS and b logo Marks. Not surprisingly, the Examining Attorney for the Soho Beats Applications issued Office actions citing a likelihood of confusion with numerous registrations and prior pending applications owned by Beats. On February 21, 2020, Mr. Mian filed responses to the Office actions, challenging the validity of Beats’ registrations cited against the Soho Beats Applications, raising many arguments identical or similar to the ones he raised in connection with this instant proceeding. Mr. Mian’s conduct in filing and prosecuting the Soho Beats Applications

18 furtherconstitutes harassment towards Beats, and establishes Petitioner’s bad faith motivation in litigating this proceeding.

WHEREFORE, Beats respectfully requests that the Board dismiss the Petition to Cancel with prejudice.

Respectfully submitted,

Dated: May 29July 6, 2020 /Michael G. Kelber/

One of the Attorneys for BEATS ELECTRONICS, LLC Michael G. Kelber Andrea S. Fuelleman Andrew S. Fraker NEAL, GERBER & EISENBERG LLP 2 North LaSalle Street, Suite 1700 Chicago, Illinois 60602 Telephone: 312.269.8000

19 EXHIBIT A Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2021) Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 88454319 Filing Date: 05/31/2019

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered TEAS Plus YES MARK INFORMATION

*MARK BEATS

*STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

LITERAL ELEMENT BEATS The mark consists of standard characters, without claim to any *MARK STATEMENT particular font style, size, or color. REGISTER Principal APPLICANT INFORMATION

*OWNER OF MARK SOHO BEATS, LLC

INTERNAL ADDRESS Suite #10201

*STREET 8 The Green

*CITY Dover

*STATE Delaware (Required for U.S. applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 19901 (Required for U.S. and certain international addresses)

PHONE 516-304-9595

EMAIL ADDRESS XXXX

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

WEBSITE ADDRESS http://sohobeats.me/ LEGAL ENTITY INFORMATION

*TYPE LIMITED LIABILITY COMPANY

* STATE/COUNTRY WHERE LEGALLY ORGANIZED Delaware GOODS AND/OR SERVICES AND BASIS INFORMATION *INTERNATIONAL CLASS 009 Audio speakers; Batteries and battery chargers; Earphones; *IDENTIFICATION Headphones; Virtual reality headsets; Game headphones

*FILING BASIS SECTION 1(b) ADDITIONAL STATEMENTS INFORMATION

*TRANSLATION (if applicable)

*TRANSLITERATION (if applicable)

*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAME/LIKENESS) (if applicable)

*CONCURRENT USE CLAIM (if applicable) CORRESPONDENCE INFORMATION

*NAME SOHO BEATS, LLC

FIRM NAME SOHO BEATS, LLC

INTERNAL ADDRESS Suite #10201

*STREET 8 The Green

*CITY Dover

*STATE Delaware (Required for U.S. addresses)

*COUNTRY United States

*ZIP/POSTAL CODE 19901

PHONE 516-304-9595

*EMAIL ADDRESS [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION

APPLICATION FILING OPTION TEAS Plus

NUMBER OF CLASSES 1

FEE PER CLASS 225

*TOTAL FEE PAID 225 SIGNATURE INFORMATION

* SIGNATURE /Khalid Mian/

* SIGNATORY'S NAME KHALID MIAN

* SIGNATORY'S POSITION MEMBER

SIGNATORY'S PHONE NUMBER 516-304-9595

* DATE SIGNED 05/31/2019 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2021)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 88454319 Filing Date: 05/31/2019 To the Commissioner for Trademarks:

MARK: BEATS (Standard Characters, see mark) The mark in your application is BEATS.

The applicant, SOHO BEATS, LLC, a limited liability company legally organized under the laws of Delaware, having an address of Suite #10201 8 The Green Dover, Delaware 19901 United States 516-304-9595(phone) XXXX requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table. International Class 009: Audio speakers; Batteries and battery chargers; Earphones; Headphones; Virtual reality headsets; Game headphones Intent to Use: The applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the identified goods/services. (15 U.S.C. Section 1051(b)).

For informational purposes only, applicant's website address is: http://sohobeats.me/ The applicant's current Correspondence Information: SOHO BEATS, LLC SOHO BEATS, LLC Suite #10201 8 The Green Dover, Delaware 19901 516-304-9595(phone) [email protected] (authorized) E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or the applicant's attorney, or the applicant's domestic representative at the e-mail address provided in this application. I understand that a valid e-mail address must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Plus status and a requirement to submit an additional processing fee of $125 per international class of goods/services.

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

Basis: If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):

The signatory believes that the applicant is the owner of the trademark/service mark sought to be registered; The mark is in use in commerce on or in connection with the goods/services in the application; The specimen(s) shows the mark as used on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.

AND/OR If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e):

The signatory believes that the applicant is entitled to use the mark in commerce; The applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate. To the best of the signatory's knowledge and belief, 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. To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary support. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. Declaration Signature

Signature: /Khalid Mian/ Date: 05/31/2019 Signatory's Name: KHALID MIAN Signatory's Position: MEMBER Signatory's Phone Number: 516-304-9595 Payment Sale Number: 88454319 Payment Accounting Date: 05/31/2019

Serial Number: 88454319 Internet Transmission Date: Fri May 31 11:54:32 EDT 2019 TEAS Stamp: USPTO/FTK-XXX.XX.XXX.XXX-201905311154326 03743-88454319-620a22cea733211a34598251a 16a6aa3ce183c8a3a4ae611478c0153b97f2f2b6 a4-CC-9366-20190531113845584239

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2021) Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 88454219 Filing Date: 05/31/2019

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered TEAS Plus YES MARK INFORMATION \\TICRS\EXPORT17\IMAGEOUT *MARK 17\884\542\88454219\xml1\ FTK0002.JPG

*SPECIAL FORM YES

USPTO-GENERATED IMAGE NO

LITERAL ELEMENT b

*COLOR MARK NO

*COLOR(S) CLAIMED (If applicable) The mark consists of The mark consists of a lower case letter *DESCRIPTION OF THE MARK (and Color Location, if applicable) "b" that is inset in a circle. The vertical line of the letter "b" cuts to the edge of the circle.

PIXEL COUNT ACCEPTABLE YES

PIXEL COUNT 900 x 900 REGISTER Principal APPLICANT INFORMATION

*OWNER OF MARK SOHO BEATS, LLC

INTERNAL ADDRESS Suite #10201

*STREET 8 The Green

*CITY Dover

*STATE Delaware (Required for U.S. applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 19901 (Required for U.S. and certain international addresses)

PHONE 516-304-9595

EMAIL ADDRESS XXXX AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

WEBSITE ADDRESS http://sohobeats.me/ LEGAL ENTITY INFORMATION

*TYPE LIMITED LIABILITY COMPANY

* STATE/COUNTRY WHERE LEGALLY ORGANIZED Delaware GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL CLASS 009 Audio speakers; Batteries and battery chargers; Earphones; *IDENTIFICATION Headphones; Virtual reality headsets; Game headphones

*FILING BASIS SECTION 1(b) ADDITIONAL STATEMENTS SECTION

*TRANSLATION (if applicable)

*TRANSLITERATION (if applicable)

*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAME/LIKENESS) (if applicable)

*CONCURRENT USE CLAIM (if applicable) CORRESPONDENCE INFORMATION

*NAME SOHO BEATS, LLC

FIRM NAME SOHO BEATS, LLC

INTERNAL ADDRESS Suite #10201

*STREET 8 The Green

*CITY Dover

*STATE Delaware (Required for U.S. addresses)

*COUNTRY United States

*ZIP/POSTAL CODE 19901

PHONE 516-304-9595

*EMAIL ADDRESS [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION

APPLICATION FILING OPTION TEAS Plus

NUMBER OF CLASSES 1

FEE PER CLASS 225

*TOTAL FEE PAID 225 SIGNATURE INFORMATION

* SIGNATURE /Khalid Mian/

* SIGNATORY'S NAME KHALID MIAN * SIGNATORY'S POSITION MEMBER

SIGNATORY'S PHONE NUMBER 516-304-9595

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 88454219 Filing Date: 05/31/2019 To the Commissioner for Trademarks:

MARK: b (stylized and/or with design, see mark)

The mark in your application is b. The applicant is not claiming color as a feature of the mark. The mark consists of The mark consists of a lower case letter "b" that is inset in a circle. The vertical line of the letter "b" cuts to the edge of the circle. The applicant, SOHO BEATS, LLC, a limited liability company legally organized under the laws of Delaware, having an address of Suite #10201 8 The Green Dover, Delaware 19901 United States 516-304-9595(phone) XXXX requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

Basis: If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):

AND/OR If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e):

Signature: /Khalid Mian/ Date: 05/31/2019 Signatory's Name: KHALID MIAN Signatory's Position: MEMBER Signatory's Phone Number: 516-304-9595 Payment Sale Number: 88454219 Payment Accounting Date: 05/31/2019

Serial Number: 88454219 Internet Transmission Date: Fri May 31 11:09:40 EDT 2019 TEAS Stamp: USPTO/FTK-XXX.XX.XXX.XXX-201905311109403 13141-88454219-620ef562f646d4b9f227942e2 346e31fe726b2f172a5dd5f25b462952e9b9fff1 40-CC-8670-20190531102621678933