Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA543522 Filing date: 06/17/2013 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92054587 Party Defendant Select Brands LLC Correspondence JULIANNE M HARTZELL Address MARSHALL GERSTEIN & BORUN LLP 233 SOUTH WACKER DRIVE, 6300 WILLIS TOWER , IL 60606-6357 UNITED STATES [email protected] Submission Brief on Merits for Defendant Filer's Name Julianne M. Hartzell Filer's e-mail [email protected] Signature /Julianne M. Hartzell/ Date 06/17/2013 Attachments Redacted Trial Brief.pdf(297256 bytes )

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

) CAPITAL CITY, LLC, ) ) Petitioner, ) In the matter of Registration No.: 2247855 ) v. ) ) SELECT BRANDS, LLC, ) Cancellation No.: 92054587 ) Registrant. ) ) ) )

REGISTRANT’S TRIAL BRIEF

On the Brief:

Michael Graham Julianne Hartzell Kate Nuehring MARSHALL, GERSTEIN & BORUN, LLP 63rd Floor 233 S. Wacker Drive Chicago, IL 60606-6357 312/4746300

Table of Contents

Page I. PROCEDURAL HISTORY...... 5

II. DESCRIPTION OF THE EVIDENTIARY RECORD ...... 5

A. The Pleadings of Record ...... 5

B. Evidence Submitted by the Petitioner Capital City ...... 5

C. Evidence Submitted by the Registrant Select Brands ...... 7

III. EVIDENTIARY OBJECTIONS TO PETITIONER’S BRIEF ...... 7

IV. ISSUE PRESENTED ...... 9

V. INTRODUCTION ...... 9

A. Creation of the MUMBO Mark ...... 10

B. Registrant’s Use of the MUMBO® Mark ...... 11

C. Select Brands’ Acquisition and Use of the MUMBO Mark ...... 13

D. Registrant’s Enforcement of the MUMBO Mark ...... 14

VI. ARGUMENT ...... 17

A. Petitioner Bears the Burden to Prove Both Counts ...... 17

B. Select Brands Has Not Abandoned Its Mark ...... 18

C. The MUMBO® Mark Is Not Generic...... 20

1. The Goods or Services set forth in the certificate of registration ...... 21

2. Primary Significance to the Relevant Public ...... 22

3. Dictionaries do not define “mumbo” as a generic term or type of sauce ...... 25

4. Respondent’s Use of the MUMBO mark ...... 26

5. Effective Policing of the Mark ...... 28

VII. CONCLUSION ...... 29

2

Table of Authorities

Page(s) CASES Anheuser-Busch, Inc. v. Du Bois Brewing Co., 175 F.2d 370 (3rd Cir. 1949) ...... 18 Baroness Small Estates, Inc. v. American Wine Trade, Inc., 104 U.S.P.Q.2d 1224 (T.T.A.B. 2012) ...... 22 Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 13 USPQ2d 1307 (Fed. Cir. 1989) ...... 17 Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 U.S.P.Q.2d 1626 (Fed. Cir. 2009) ...... 17, 21 Danish Dairy Bd., Inc. v. The Ministry Of Commerce and Indus. of the Republic of Cyprus, Cancellation No. 19,815, 1999 TTAB LEXIS 412 (T.T.A.B. Aug. 12, 1999) ...... 25 H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 U.S.P.Q. 528 (Fed Cir. 1986) ...... 17, 21, 24 In re America Online Inc., 77 U.S.P.Q.2d 1618 (T.T.A.B. 2006) ...... 28 In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 U.S.P.Q.2d 1807 (Fed. Cir. 2001) ...... 21 In re Pet Relocation LLC, Serial No. 77849966, 2012 WL 5902072 (T.T.A.B. November 8, 2012) ...... 24 Jacob Zimmerman v. Nat’l Ass’n of Realtors, 70 U.S.P.Q.2d 1425 (T.T.A.B. 2004) ...... 26 Linville v. Rivard, 41 U.S.P.Q.2d 1731 (T.T.A.B. 1996), decision aff'd, 133 F.3d 1446, 45 U.S.P.Q.2d 1374 (Fed. Cir. 1998) ...... 20 Lipton Indus. Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 U.S.P.Q. 185 (C.C.P.A. 1982) ...... 17 Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 U.S.P.Q.2d 1551 (Fed. Cir. 1991) ...... 17, 21, 22, 24 McCormick Del., Inc. et al. v. Williams Foods, Inc., Cancellation No. 28,967, 2001 TTAB LEXIS 207 (T.T.A.B. Feb. 14, 2001)...... 25 STK LLC v. Backrack, Inc., Cancellation No. 92049332, 2012 WL 2024459 (T.T.A.B. May 21, 2012) ...... 19, 20, 26

3

Tea Bd. of India v. Republic of Tea, Inc., 80 U.S.P.Q.2d 1881 (T.T.A.B. 2006) ...... 18, 22 W. Fla. Seafood v. Jet Rest., 31 F.3d 1122, 31 U.S.P.Q.2d 1660 (Fed. Cir. 1994) ...... 17

STATUTES 15 U.S.C. § 1057(b) (2012) ...... 17

REGULATIONS 37 CFR § 2.122(c)...... 7

4

I. PROCEDURAL HISTORY

The Petition for Cancellation in this matter was filed on September 30, 2011. Pursuant to the extension of time granted by the Board, Registrant filed its Answer on December 8, 2011.

Both parties filed Notices of Reliance as evidence in this proceeding. Registrant has filed two

Motions to Strike substantial portions of Petitioner’s Notices of Reliance. Registrant also took a testimony deposition and submitted excerpts of the 30(b)(6) deposition of Petitioner.

II. DESCRIPTION OF THE EVIDENTIARY RECORD

A. The Pleadings of Record

The U.S. Patent and Trademark Office (“PTO”) file of Registration No. 2247855

Petitioner’s Petition for Cancellation

Registrant’s Answer to Petition for Cancellation

B. Evidence Submitted by the Petitioner Capital City

Petitioner’s First Notice of Reliance – publications1

Petitioner’s Second Notice of Reliance –Registrant’s Response to Interrogatories 8 and 9

Petitioner’s Third Notice of Reliance – Portions of Registrant’s Document Production

Petitioner’s Seventh Notice of Reliance – Web sites2

Petitioner’s Eight Notice of Reliance – Web sites of menus3

1 Registrant objected in detail to the all of the documents submitted with Petitioner’s First Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 1, 4, 5, 6 & 7 filed on December 17, 2012 (Document 16). Those objections are hereby incorporated by reference. 2 Registrant objected in detail to all of the documents submitted with Petitioner’s Seventh Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 1, 4, 5, 6 & 7 filed on December 17, 2012 (Document 16). Those objections are hereby incorporated by reference. 3 Registrant objected in detail to all of the documents submitted with Petitioner’s Eighth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference.

5

Petitioner’s Ninth Notice of Reliance – Books4

Petitioner’s Tenth Notice of Reliance – Online User-Generated Dictionaries5

Petitioner’s Eleventh Notice of Reliance – Cooking show6

Petitioner’s Twelfth Notice of Reliance – Twitter excerpts7

Petitioner’s Thirteenth Notice of Reliance – Food blog8

Petitioner’s Fourteenth Notice of Reliance – Online publication9

Petitioner’s Fifteenth Notice of Reliance – Newpaper articles10

Petitioner’s Sixteenth Notice of Reliance – Petitioner’s Own Responses to Requests for

Admission 11

4 Registrant objected in detail to all of the documents submitted with Petitioner’s Ninth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 5 Registrant objected in detail to all of the documents submitted with Petitioner’s Tenth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 6 Registrant objected in detail to all of the documents submitted with Petitioner’s Eleventh Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 7 Registrant objected in detail to all of the documents submitted with Petitioner’s Twelfth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 8 Registrant objected in detail to all of the documents submitted with Petitioner’s Thirteenth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 9 Registrant objected in detail to all of the documents submitted with Petitioner’s Fourteenth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference. 10 Registrant objected in detail to all of the documents submitted with Petitioner’s Fifteenth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference.

6

C. Evidence Submitted by the Registrant Select Brands

- Testimonial Deposition of Allison Collins with exhibits, taken on January 10, 2013

(“Collins”)

- Registrant’s First Notice of Reliance on The Absence of Dictionary Definitions

defining mumbo as a generic term – SB1

- Registrant’s Second Notice of Reliance on Petitioner’s Responses to Requests for

Admission Nos. 2, 9, 11, 12, 13, and 14 - SB2

- Registrant’s Third Notice of Reliance on the 30(b)(6) Deposition Testimony of

Petitioner (“Jones”)– SB3

III. EVIDENTIARY OBJECTIONS TO PETITIONER’S BRIEF

Registrant has raised a number of objections to Petitioner’s Notices of Reliance, and

hereby objects to Petitioner’s Brief insofar as it relies on any of Exhibits A-I to the Petition to

Cancel. An exhibit attached to a pleading is not evidence on behalf of the party to whose

pleading the exhibit is attached unless identified and introduced in evidence as an exhibit during

the period for the taking of testimony. 37 CFR § 2.122(c). Because they were not identified and

introduced in evidence as an exhibit during the period for the taking of testimony, Exhibits A-I to

the Petition to Cancel must be disregarded by the Board.

In addition, for the reasons set forth in Registrant’s Motions to Strike (docket number 16

filed on December 28, 2012), Petitioner’s Notices of Reliance 1, 4, 5, 6, and 7 should also be

stricken and the documents identified therein stricken from the record.

(…Continued footnote) 11 Registrant objected in detail to the document submitted with Petitioner’s Sixteenth Notice of Reliance in Registrant’s Motion to Strike Evidence in Petitioner’s Notice of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 filed on May 16, 2013 (Document 33). Those objections are hereby incorporated by reference.

7

Petitioner’s Notices of Reliance Nos. 8-16 should also be stricken and the documents

identified therein stricken from the record because they are the embodiment of improper rebuttal

evidence. In support of its trial brief, Petitioner cites to no evidence from any Notice of Reliance

submitted during Petitioner’s trial period. Instead, Petitioner relies solely on documents produced

with the Notices of Reliance Petitioner submitted during its rebuttal period to prove its case-in-

chief. As pointed out in its Motion to Strike (Docket Number 33), these documents and

discovery constitute improper rebuttal evidence directed to the merits of Petitioner’s case in

chief, and not to rebut Registrant’s testimony and should be struck. Further, many of these

documents were not even produced in discovery and should therefore be excluded from

consideration. See Registrant’s Motion to Strike (docket number 33).

Petitioner’s effort to rely almost entirely on improperly submitted rebuttal evidence to which Registrant had no opportunity to respond is improper and should not be allowed. Further, even though Registrant has had no opportunity to challenge it, the accuracy and reliability of that evidence is on its face unsupported.12 Because they do not constitute proper rebuttal evidence

12 For example, Registrant relies upon a statement made in social media referring to “Costco mumbo sauce” as evidence of generic use. Pet. Trial Brief at 8. However, that statement refers to Registrant’s MUMBO® brand , which is sold in certain Costco stores and listed in Costco advertisements. See photo on p. 9, CC Notice 12 showing that the sauce sold at Costco is Registrant’s Mumbo brand Barbecue sauce. Thus, that statement actually constitutes evidence of Registrant’s use of MUMBO® as a trademark. Similarly, Petitioner cites to both Wikipedia and Urban Dictionary as evidence that the primary use of the word MUMBO by the consuming public is as a generic reference, but each website similarly recognizes the use of MUMBO as a trademark to refer to Registrant’s product. See, e.g., www.en.wikipedia.org/wiki/Mumbo_sauce (recognizing that the trademark MUMBO name was first used by Argia B. Collins in the 1950s and that there is speculation that the DC sauce is a transplanted version of the original Chicago sauce). Furthermore, both Wikipedia and Urban Dictionary specifically disclaim the reliability of definitions contained in their sites. See, e.g., http://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (“Wikipedia makes no guarantee of validity”); http://www.urbandictionary.com/tos.php (Urbandictionary.com Terms of Use participation disclaimer and user conduct para. 7). Finally, Capital City’s 30(b)(6) witness acknowledged that she herself contributed to the Wikipedia entry for MUMBO sauce on which she now relies, evidence that Select Brands has not submitted pursuant to its Notices of Reliance (Footnote Continued…) 8

and for the reasons set forth in Registrant’s Motion to Strike (docket number 33 filed on May 16,

2013), Petitioner’s Notices of Reliance Nos. 8, 9, 10, 11, 12, 13, 14, 15, and 16 should be

entirely stricken and the documents identified therein stricken from the record. Without these late-submitted Notices of Reliance, Petitioner has identified no cognizable evidence to support its trial brief, which should be dismissed.

Although the Petition for Cancellation should therefore be denied in its entirety on these grounds alone, Registrant submits the following in defense of its registration and against the

Petition.

IV. ISSUE PRESENTED

Whether Petitioner has met its heavy burden of overcoming the registration’s presumption of validity and has proven by a preponderance of the evidence that the primary meaning of the term MUMBO to the majority of the relevant purchasing public is as a generic term rather than as a trademark referring to Select Brands’ MUMBO® brand barbecue sauce which Select Brands has been selling continuously throughout the United States, including the

Washington D.C. area, since the 1950s.

V. INTRODUCTION

Despite Select Brands’ continuous nationwide use of the MUMBO® trademark and its incontestable registration of the same, Capital City adopted Registrant’s mark for use in connection with its own product. After being placed on notice of Select Brands’ rights, Capital

City has sought to absolve its infringement by filing this cancellation proceeding alleging that the

MUMBO® mark has become generic. Because Capital City has not met its heavy burden of

(…Continued footnote) since Capital City did not submit the Wikipedia entry into evidence in its case-in-chief. Similarly, Registrant had no opportunity to conduct discovery regarding any of the internet web uses identified by Capital City for the first time in its rebuttal trial period.

9

proving genericness, this cancellation should be dismissed and Select Brand’s registration should

be affirmed.

A. Creation of the MUMBO Mark

MUMBO® brand barbecue sauce is the product of a family owned business with a long and storied history. The product was first created in the 1950’s by Argia B. Collins, owner of several restaurants located on the South Side of Chicago. (Collins at 19-21). His restaurants featured ribs, chicken, chicken wings, fries, fish, shrimp, sausages, and burgers. (Collins at 21)

When he first started, Mr. Collins wanted a barbecue sauce that would be appropriate for use with all of the products that he sold, but he wasn’t satisfied with the brands that were currently available on the market. Id. Through experimentation with different recipes, he created his own barbecue sauce in three distinct flavors: original, tangy (hot), and smoky. (Collins at 18-21) Each of the MUMBO® brand barbecue sauces has a tomato and base combined with a proprietary blend of 10 secret spices. (Collins at 20). After using and selling the sauce in his restaurants for several years, in 1957 at the request of his customers, he began bottling and marketing the sauce for retail use. (Collins at 19). At that time, the sauce was sold by the company Argia B’s Food Products. (Collins at 21).

Mr. Collins coined the trademark MUMBO® so that customers could identify the sauce that he created for his restaurant when they came in to ask to buy glass jars of it. (Collins at 22-

23). Mr. Collins also obtained a registration for the MUMBO® trademark in 1958, specifying

March 1950 as his date of first use in commerce. (Collins at 23; Ex. 106).

MUMBO® brand barbecue sauce also has an important place in African American history. Mr. Collins viewed his business as an important economic engine for growth in the primarily African American neighborhoods on the South Side of Chicago where his restaurants were located. (Collins at 25-27). The business included three restaurants and the manufacturing

10

operation for MUMBO® brand barbecue sauce, which had grown from something that Mr.

Collins ran out of the back of his restaurant into a multiple-facility operation ultimately

employing approximately 25 people from the community. (Collins at 26). His family, including

his daughter Allison, also worked as part of the business. (Collins at 26).

As an African American entrepreneur during the civil rights movement, Mr. Collins faced

resistance in introducing his product to the general market. (Collins at 27-28). In response, Mr.

Collins became one of the founding members of Operation Breadbasket in the 1960’s. Operation

Breadbasket was the brain child of Dr. Martin Luther King, Jr. and was led by the Reverend

Jesse Jackson, Jr. to advocate and promote the sale of products made by black-owned businesses

to the general population. (Collins at 28-30). The organization presented products made by those

black-owned businesses to new retail channels, and helped community members find

employment opportunities with major corporations. (Collins at 30).

Mr. Collins and MUMBO® brand barbecue sauce were featured in a 1968 Time

magazine article discussing the obstacles of black capitalism in the United States. (Collins at 28-

29). MUMBO brand barbecue sauce was also featured at a number of black expos – showcasing

products and inviting buyers from major corporations to see the products available. Reverend

Jackson Jr. acknowledged Mumbo® brand barbecue sauce’s special place in history, noting that

its popularity provided “clear evidence of the viability of black-owned products to retailers.”

(Collins Ex. 108)

B. Registrant’s Use of the MUMBO® Mark

Registrant Select Brands is the owner of a United States Trademark Registration for the mark MUMBO® which issued on May 25, 1999 for the goods “barbecue sauce.” (Collins Ex.

101). The mark has been incontestable since 2005. (Collins Ex. 103). Select Brands and its predecessor-in-interest, Argia B’s Food Products, have sold MUMBO® brand barbecue sauce

11

continuously since its introduction in the 1950s. (Collins at 27). MUMBO® brand barbecue

sauce is currently sold bearing a label with the following logo, identifying both that MUMBO®

is a registered trademark and that the common or usual name of the product sold under the mark is barbecue (written as Bar-B-Q) sauce - in the Primary Display Panel. (Collins at 36-37; Ex.

111).

Select Brands includes similar indications that MUMBO® is a registered trademark on its

website located at www.mumbobarbecuesauce.com and www.selectbrandsllc.com. (Collins 45).

The website’s main page includes photographs of the products sold under the MUMBO mark along with a description of MUMBO® barbecue sauce (Collins Ex. 112 at p. 2 and image below). Each page of the website includes a notice stating “Mumbo® Sauce is a proprietary brand of Select Brands LLC Chicago, Illinois and is a registered trademark in the U.S. Patent and

Trademark Office.” (Collins at 38-39). The website also contains a company history, fan mail from consumers located throughout the United States, promotional contests, copies of historical advertisements for the product, and recent press coverage of MUMBO® brand barbecue sauce.

(Collins at 38-45; Ex. 112-113). Each of the letters from consumers located throughout the country published on the website properly use the MUMBO® mark as a trademark. (Collins at p.

12

44; Ex. 112 at p. SELECT191-195) (customer fan mail consistently referencing Mumbo® Bar B

Que Sauce). Similarly, a letter from a customer who won a grocery store gift card in a

promotional giveaway also refers to MUMBO BBQ Sauce. (Collins Ex. 118).

MUMBO® brand barbecue sauce has been featured in articles in publications including

Life Magazine, the Wall Street Journal, the Chicago Tribune, the Chicago Sun-Times, and Chefs

Magazine and on Vocalo radio. (Collins at 54-56; 58-59; 61, 63-67; Exs. 119, 121, 123, 126,

128, 129, 130, 132). In addition to its website advertisements and promotional materials circulated to its distributors, Select Brands and its predecessor have also advertised in radio, newspaper, and internet advertisements throughout the history of its existence. (Collins at 56-58,

59-62, 67-68, 76-77; Exs. 115-117, 120, 124, 125, 127, 134-135, 141-142).

C. Select Brands’ Acquisition and Use of the MUMBO Mark

When Mr. Collins fell ill in the 1990’s, he and his family created Select Brands, LLC to continue retail sales of MUMBO® brand barbecue sauce. All rights, interest, and goodwill in the

MUMBO mark along with all other assets of Argia B’s Food Products were transferred to Select

Brands, LLC. (Collins at 21-22). Since the early 1990s, Select Brands, LLC has been the

13

manufacturer, marketer, and distributor for MUMBO brand barbecue Sauce. (Collins at 11; 21-

22).

Allison Collins is the daughter of Argia B. Collins and current manager and owner of

Select Brands, LLC. As such, she has firsthand knowledge of the creation of MUMBO® brand barbecue sauce, the adoption, use, and strength of the MUMBO® mark, the market in which the sauce is sold, and the company’s efforts to advertise, promote, and enforce the mark. (Collins at

11-13; 21).

Select Brands sells its products to retail groceries and stores through distributors who have placed the MUMBO® brand barbecue sauce at stores including Cub Foods, Farmer Jacks,

Food 4 Less, Jewel Albertsons, Jewel-Osco, Kroger, Treasure Island, and Wal-Mart. (Collins at

46-47; ; Ex. 113 at p. 14). Select Brands also sells its products direct to end users through its website. (Collins at 42). Select Brands sells its MUMBO® brand Barbecue sauce throughout the

United States. (Collins at 46-47; SB Second Notice of Reliance at p. 1). MUMBO® brand

Barbecue is the only product sold by Select Brands and its makes up 100% of Select Brands’ sales. (Collins at 88). Select Brands’ annual sales consistently average dollars, with approximately 10% of that revenue directed to marketing and advertising. (Exhibits

146-149).

D. Registrant’s Enforcement of the MUMBO Mark

Select Brands conducts a trademark policing program to protect its MUMBO® trademark. From time to time, Registrant has learned of companies using MUMBO as a trademark for barbecue sauce. Whenever this has occurred, Registrant has taken action to stop the infringing use and, in most instances, the recipients of its correspondence have complied with the request to cease use of the mark. Registrant cannot think of a single instance, prior to the initiation of this Cancellation proceeding, in which it became aware of an unauthorized use of its

14

trademark and failed to take steps to stop such use. (Collins at 110-111). Registrant has

continuously used and actively defended its mark. (SB Second Notice of Reliance at p. 3).

For example, in 2007, Select Brands conducted a keyword search on the internet and

learned of the existence of the website www.thesauces.com owned by Sammie Galloway.

(Collins at 91-93; 108). An attorney for Select Brands contacted Ms. Galloway and demanded

that she cease use of the MUMBO® trademark. Id. In recognition of Select Brands’ trademark,

Ms. Galloway changed the name of her product. Id. The current version of the website

www.thesauces.com does not contain any product sold under the MUMBO trademark. (Collins

at pp. 93-94, Ex. 150 and 151). Ms. Galloway’s compliance with Select Brands’ request to cease

use of the mark constitutes evidence that the term is a trademark.

In another example, Registrant learned of a sauce being sold by Green Mountain Grills

under the MUMBO® mark. (Collins at 102). Registrant, through its counsel, contacted Green

Mountain Grills and asked that the company cease use of the MUMBO® mark. (Collins at p.

103-104, Ex. 157). After subsequent communications, Green Mountain Grills agreed to cease its

misuse of the MUMBO® mark and to remove any reference to the mark from both Green

Mountain Grills’ own website and third party internet sites with whom Green Mountain Grills is

affiliated. (Collins at p. 105-106; Exs. 157-162). As of at least January 9, 2013, the website for

Green Mountain Grills no longer offers any product under the MUMBO® mark. (Collins at p.

107, Ex. 163). Green Mountain Grills’ compliance with Select Brands’ request to cease use of

the mark constitutes evidence that the term is recognized as a trademark.

During the course of discovery in this proceeding, Registrant also became aware of misuse of the MUMBO® trademark by Henry’s Soul Café. Registrant, through its counsel, has repeatedly contacted Henry’s Soul Café requesting that it cease the unauthorized misuse of the mark. (Collins at 117-118, Ex. 170). Registrant, through its counsel, also researched or contacted

15

a number of other restaurants identified by Petitioner as unauthorized users of Petitioner’s

trademark. Registrant learned, however, that either its mark was not being used by these

restaurants or that the respondents agreed to cease using the mark. (Collins at 111-117, Exs. 164-

169) Ms. Collins had another opportunity to consider a third party use of MUMBO as a

trademark in the Washington, D.C. region. In approximately 1995 or 1996, Ms. Collins heard at

a trade show that a consumer believed she had tried MUMBO® brand barbecue sauce in a

Washington D.C. restaurant. Ms. Collins travelled to that restaurant to investigate and learned

that the restaurant was not selling any type of sauce under the MUMBO® mark. (Collins at 118-

119)

When Select Brands became aware of the misuse of its MUMBO® mark by Capital City,

Select Brands again took action to prevent the misuse. On or about 2011, Registrant learned about Petitioner’s use of Registrant’s MUMBO Mark when it was advised by its Washington

D.C. distributor of the existence of Capital City’s Facebook page. (Collins at p. 94-95). As with prior infringements, Registrant, through its counsel, contacted Petitioner to request that it cease the infringing use of the mark. (SB Third Notice of Reliance at p. 5; Jones at p. 98, Ex. 18;

Collins at 97-100). Registrant also contacted Facebook, which removed Petitioner’s Capital City

Mumbo Sauce page. (Collins at p. 95-96, Ex. 152). Registrant contacted media sources, including Fox 5 and the Washington Post, which had referenced Petitioner’s sauce soon after the

Petitioner’s product launch to advise them of Select Brands’ rights in the mark. (SB Third Notice of Reliance at p. 5; Jones at p. 98, l. 13- p. 99, l. 6; Collins at p. 96-97; 99-102, Ex. 153-156; SB

Second Notice of Reliance at p. 2). Petitioner is unable to identify any additional steps Registrant should have taken to enforce its mark as against Petitioner.

16

VI. ARGUMENT

The Petition for Cancellation in this Matter contains two counts: Count One alleging that

the MUMBO trademark is generic and Count Two alleging that Registrant has Abandoned the

MUMBO trademark by failing to police its use. Petitioner has not satisfied its burden to prove

either Count.

A. Petitioner Bears the Burden to Prove Both Counts

A mark registered on the Principal Register is presumed to be valid. 15 U.S.C. § 1057(b)

(2012). Therefore, the burden of persuasion in a cancellation proceeding rests on the party seeking to cancel the registration. Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586

F.3d 1352, 1356, 92 U.S.P.Q.2d 1626 (Fed. Cir. 2009) (citing Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 1023, 13 USPQ2d 1307 (Fed. Cir. 1989)). “A party seeking to cancel a registration must overcome the registration’s presumption of validity by a preponderance of the evidence.” Cold War Museum, 586 F.3d at 1356 (citing W. Fla. Seafood v.

Jet Rest., 31 F.3d 1122, 1125, 31 U.S.P.Q.2d 1660 (Fed. Cir. 1994)). Where the alleged grounds for cancellation involves the loss or forfeiture of a property right on the part of respondent, petitioner's burden to establish abandonment of the mark by respondent, though still governed by the preponderance of evidence standard, is nonetheless heavy and often incurs greater evidentiary difficulties. See Cerveceria Centroamericana, 892 F.2d at 1023 (citing Lipton Indus.

Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 U.S.P.Q. 185 (C.C.P.A. 1982)).

The test for determining whether a term is generic is whether the primary meaning for the

term as used or understood, by purchasers or potential purchasers of the goods or services at

issue is to refer to the class or genus of such goods or services. Magic Wand Inc. v. RDB Inc.,

940 F.2d 638, 640-41, 19 U.S.P.Q.2d 1551 (Fed. Cir. 1991). In H. Marvin Ginn Corp. v. Int’l

Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 U.S.P.Q. 528 (Fed Cir. 1986), the Court laid out a

17

two-step inquiry for determining genericness: First, what is the genus of goods or services at issue? Second, is the term sought to be registered or retained on the register understood by the

relevant public primarily to refer to that genus of goods or services? In the present case, contrary

to Petitioner’s unsupported assertions, the good at issue is barbecue sauce, and Registrant’s

MUMBO® trademark is not understood to refer to that genus of goods, but to serve as a source

indicator, or specific brand of barbecue sauce.

B. Select Brands Has Not Abandoned Its Mark

In order to prove its abandonment claim, Capital City bears the burden of proving by a preponderance of the evidence that Select Brands has abandoned its incontestable trademark by failing to police the use of its mark by unauthorized users. See Anheuser-Busch, Inc. v. Du Bois

Brewing Co., 175 F.2d 370 (3rd Cir. 1949). It is well settled that a party asserting that an

otherwise arbitrary trademark for an article has become a common descriptive name for the

article has the burden of showing not only that the mark has been misused in the manner stated

but that the misuse thereof has been so widespread and of such duration that there can be no

doubt that to the trade and/or to the public generally the mark identifies the article as to kind

rather than as to source. Tea Bd. of India v. Republic of Tea, Inc., 80 U.S.P.Q.2d 1881, 1887

(T.T.A.B. 2006). Capital City makes no argument in its opening brief to support its abandonment

claim and has offered no valid evidence that Registrant has failed to police its trademark. While

this is not surprising in light of Select Brand’s effective policing efforts, this failure of proof is

dispositive of Capital City’s abandonment claim.

As set forth in the statement of facts, Select Brands has taken extensive and effective

steps to enforce trademark against third party infringers. The evidence of record shows that, as

part of its trademark policing and monitoring program, Select Brands has taken reasonable steps

18

to protect its mark and stop the unauthorized use of MUMBO by the manufactures of products of

which it became aware in the course of its monitoring program.

In 1995 or 1996, Ms. Collins personally travelled to Washington D.C. to investigate reports of an unauthorized use of the MUMBO® mark. She learned that the reported restaurant was not using the mark. (Collins at 118-119)

In 2007, Select Brands conducted a keyword search on the internet and learned of the existence of the website www.thesauces.com owned by Sammie Galloway. (Collins at 91-93;

108). An attorney for Select Brands contacted Ms. Galloway and demanded that she cease use of

the MUMBO trademark. Id. In recognition of Select Brands’ trademark, Ms. Galloway changed

the name of her product. Id. The current version of the website www.thesauces.com does not

contain any product sold under the MUMBO trademark. (Collins at p. 91-93, 108; Ex. 150-151).

Such evidence of compliance supports a finding that the term is a trademark rather than a generic

term. STK LLC v. Backrack, Inc., Cancellation No. 92049332, 2012 WL 2024459, at *18

(T.T.A.B. May 21, 2012) (non-precedential).

Select Brands became aware of Capital City’s own unauthorized use of the MUMBO

trademark in 2011. Capital City admits that prior to the creation of its own website, it was not

aware of the use of the MUMBO mark by any other company for sale of a food sauce over the

internet. (Third Notice of Reliance at RFA No. 9). Capital City further admits that counsel for

Select Brands contacted Capital City to prevent its use of the MUMBO mark, contacted

Facebook to remove Capital City’s page, and contacted seven media organizations during the

summer of 2011 demanding that the recognition of Select Brands’ federally registered trademark

(Third Notice of Reliance at RFA No. 13), and defended this Cancellation proceeding against

Capital City’s allegations (Third Notice of Reliance at TFA No. 14).

19

In the course of the Cancellation proceeding, Select Brands also learned of the

unauthorized use of the MUMBO® mark by a company called Green Mountain Grills. Select

Brands contacted Green Mountain Grills, which changed the name of its product and agreed to

remove all remaining references to the previous name on both its website and all affiliated

websites. (Collins at 102-107; Exs. 157-162). Such evidence of compliance supports a finding

that the term is a trademark rather than a generic term. STK LLC, 2012 WL 2024459, at *18.

Select Brands also contacted a number of other restaurants identified by Capital City as allegedly using the MUMBO® mark and learned that a large number of those identified by Capital City do

NOT use the mark at all.

Despite these extensive and effective efforts by Select Brands to control and police use of its mark, Capital City asserts without support that Select Brands’ efforts have not been sufficient.

Instead, Capital City points to many of the very same companies that have complied with Select

Brand’s demands to cease use the mark, including Green Mountain Grills and thesauces.com website. Select Brands has made clear that these uses are not authorized and has taken appropriate action to protect its trademark against improper use as a trademark, or as descriptive or generic term. Capital City relies on nothing more than the existence of third-party infringers as evidence of abandonment. Such evidence does not constitute an abandonment of a mark where the trademark owner does not consent to the asserted use. Linville v. Rivard, 41 U.S.P.Q.2d

1731, 1741 (T.T.A.B. 1996), decision aff'd, 133 F.3d 1446, 45 U.S.P.Q.2d 1374 (Fed. Cir. 1998).

Because Capital City has not met its burden of proving any failure to police by Select Brands,

Capital City’s Abandonment Claim must be dismissed.

C. The MUMBO® Mark Is Not Generic

Capital City’s genericness claim also fails both because the mark is not generic and

because Capital City has failed to offer any proof of genericness. Select Brands’ incontestable

20

registration of the mark constitutes prima facie proof of validity and distinctiveness. Cold War

Museum, 586 F.3d at 1356. Select Brands’ continuous and notorious use of the mark for more than 60 years throughout the United States further supports the conclusion that the trademark has attained significant recognition among consumers. Capital City’s evidence does not meet the standard to prove that the primary meaning of the term to consumers throughout the United

States is as anything other than an identifier for Select Brands’ products. Rather, Select Brands has shown consistent use, customer recognition, publications, and policed parties identifying the mark as a source identifier for Select Brands.

A term is a generic name and not registrable as a mark if it refers to the class or category

of goods and/or services on or in connection with which it is used. In re Dial-A-Mattress

Operating Corp., 240 F.3d 1341, 57 U.S.P.Q.2d 1807 (Fed. Cir. 2001), citing H. Marvin Ginn,

782 F.2d at 991, 228 U.S.P.Q. at 532. Determining whether a term is generic involves a two-step inquiry: “First, what is the genus of goods or services at issue? Second, is the term sought to be registered or retained on the register understood by the relevant public primarily to refer to that genus of goods or services?” Id. at 530. Genericness is a fact-intensive determination and the

Board’s conclusion must be governed by the record that is presented to it.

1. The Goods or Services set forth in the certificate of registration

A proper genericness inquiry focuses on the description of goods set forth in the certificate of registration. Magic Wand, 940 F.2d at 640. The Lanham Act permits cancellation of a registered mark on the grounds of genericness only when the registered mark can be shown to have become the generic name for the goods for which it is registered. Id.

In the present case, Capital City admits - and Select Brands agrees - that the genus of goods at issue in this case is “barbecue sauce” and not mumbo sauce. Petitioner’s Trial Brief at p. 7. In fact, there is no evidence of record that the relevant purchasing public understands the

21

term mumbo to refer primarily to the genus of barbecue sauces. Capital City has submitted no

consumer surveys, consumer affidavits, or other evidence showing such an understanding. To

the contrary, although it bears no such burden, Select Brands has shown that its mark is

consistently used as a source identifier for a particular brand of barbecue sauce on its website, in

its marketing materials, and on its product labeling to consumers throughout the United States

and that consumers and policed parties identify it as such. (Collins Ex. 111, 112-114, 136-137)

2. Primary Significance to the Relevant Public

Generic terms are terms that the relevant purchasing public understands primarily as the

common or class name for the goods or services. The “relevant public” for goods sold in the

marketplace is limited to actual or potential purchasers of the goods. Magic Wand, 940 F.2d at

641. Select Brands sells its MUMBO® brand barbecue sauce throughout the United States, thus the relevant public includes purchasers of barbecue sauces throughout the United States. Capital

City presents no evidence that the primary meaning of the term to the relevant purchasing public is as anything other than a source identifier for Select Brands’ MUMBO® brand barbecue sauce.

Petitioner attempts to rely on online uses of the word mumbo (all of which should be stricken pursuant to Registrant’s Motions to Strike) in an attempt to prove genericness. The evidentiary value of Internet articles and third-party websites, to the extent such evidence has been offered to show consumer perception of the mark at issue, is limited, because the audience for those materials is not clear. Tea Bd. of India v. Republic of Tea Inc., 80 U.S.P.Q.2d at 1900 n.28. Further, the uses identified by Petitioner are mixed at best. A mixture of usages is not sufficient to show that the purchasers of the product primarily view the term as generic. Baroness

Small Estates, Inc. v. American Wine Trade, Inc., 104 U.S.P.Q.2d 1224, 1228 (T.T.A.B. 2012).

Petitioner relies on two quotes from social media websites (which should be stricken pursuant to

Registrant’s Motions to Strike) as use of the word mumbo generically. Select Brands objects to

22

this evidence as improperly late-produced because Capital City introduced it for the very first

time in Select Brands’ rebuttal testimony period, though the testimony submitted by Registrant in

its trial period was limited only to information about Select Brands, its trademark, and its

enforcement efforts. However, each of these online examples also fails to show generic use of

the term mumbo.

As explained in footnote 1, the first of these uses is actually a reference to Select Brands’ proprietary Mumbo® brand sauce sold through Costco. The second reference is to a restaurant called Major’s Carryout, which advertises on its own website in the American menu that it offers

“Chicken Wings with Mumber Sauce.” (available at http://www.beyondmenu.com/23418/Washington-DC/Majors-Carryout-Washington-

20002.aspx?r=23418#group_250811). Accordingly, neither of the social media references identified by Petitioner as demonstrating generic use of the term mumbo actually demonstrates any such use. Also as discussed in footnote 1, Petitioner relies on user generated content (which should be stricken pursuant to Registrant’s Motions to Strike) from Urban Dictionary and

Wikipedia based upon the small number of users who contributed, each of which also recognize

Select Brands’ proprietary use of the term. See CC10 at p. 3; 5. Similarly, the only publications

of record (because all publications identified by Petitioner should be stricken pursuant to

Registrant’s Motion to Strike) reference Select Brands’ MUMBO® brand barbecue sauce.

(Collins at 54-56; 58-59; 61, 63- 67; Exs. 119, 121, 123, 126, 128, 129, 130, 132). This evidence

is insufficient to meet Capital City’s evidentiary burden.

Capital City does not even try to show that the purportedly generic meaning is the

primary meaning to consumers throughout the United States, focusing instead on a theory of

regional genericness in the Washington, D.C. area. The test for genericness is not whether the

mark would be perceived as generic to “some portion of the public” but rather whether its

23

“primary significance” to the relevant public is that of genericness. In re Pet Relocation LLC,

Serial No. 77849966, 2012 WL 5902072, at *4 (T.T.A.B. November 8, 2012) (non-precedential);

H. Marvin Ginn, 782 F.2d at 989, 228 USPQ at 530. Capital City’s 30(b)(6) witness acknowledged that it does not have any evidence of a sauce generically referred to as mumbo available outside of the Washington D.C. metro area and has no factual basis to believe that the majority of people outside of the Washington D.C. area are even aware of a sauce that is generically referred to as mumbo sauce. (SB3 at p. 3, Jones at p. 23, lines 8-13; SB3 at p. 4-5,

Jones at p. 58:20-59:23). Even within the Washington D.C. area, it has offered no factual basis to support the finding that a majority of people are aware of the product that it contends is generically called mumbo sauce. (SB3 at p. 4-5, Jones at p. 58:20-59:23). Instead, the witness indicated that the only use alleged to be generic is limited to a subculture described as the largely

African American urban communities in the D.C. metropolitan area. (SB3 at p. 7, Jones at p.

121:3-122:6). This lay witness, with no special qualifications as an expert, testified that she was relying SOLELY on her own personal knowledge in support of this proposition. Such unsupported evidence of generic use by a small part of the relevant purchasing public has limited probative value. Magic Wand, 940 F.2d at 641.

As in the Magic Wand case cited by Petitioner -- which affirmed the Board’s finding that the evidence was insufficient to find the mark at issue generic --, Petitioner here has supplied no survey evidence of consumer understanding, no letters of testimony from consumers, and no affidavits from consumers showing generic use or understanding of the MUMBO trademark.

Magic Wand, 940 F.2d at 641. The only evidence relied upon in its case-in-chief was improperly submitted by Petitioner for the very first time in its rebuttal trial period. At best, Petitioner only argues that such use shows inconsistent, localized use of the term. This evidence fails to meet

24

Capital City’s evidentiary burden to show that the primary meaning of the term to the majority of

consumers throughout the United States is as a generic identifier for a class of goods.

3. Dictionaries do not define “mumbo” as a generic term or type of condiment sauce

A lack of a dictionary definitions defining a term as generic may be significantly

probative that such term is not generic. In Danish Dairy Bd., Inc. v. The Ministry Of Commerce

and Indus. of the Republic of Cyprus, Cancellation No. 19,815, 1999 TTAB LEXIS 412, at *14-

15 (T.T.A.B. Aug. 12, 1999) (non-precedential), the Board refused to hold the mark

“HALLOUMI” generic for . In that proceeding, in which no dictionary definitions for

“halloumi” were provided, the Board noted that “[i]f the mark were in fact generic, we would expect dictionaries to list it and give an explanation of its meaning.” See also McCormick Del.,

Inc. et al. v. Williams Foods, Inc., Cancellation No. 28,967, 2001 TTAB LEXIS 207, at *13-15

(T.T.A.B. Feb. 14, 2001) (mark BAG ‘N SEASON not generic when relevant pages from five representative dictionaries indicated an absence of entries for the term “bag ‘n season.”)

In the present case, Respondent has submitted seven separate dictionary listings for mumbo spanning the time period from 1993 to 2011.13 SB First Notice of Reliance Exs. 1-7. Not

a single dictionary defines the word mumbo or mumbo sauce referring to a generic term for

barbecue sauce. Instead, the only listing for the term mumbo is as part of the phrase “mumbo

jumbo,” meaning confusing language. This absence of any dictionary definition of “mumbo” as

meaning a type of sauce supports a finding that Respondent’s incontestable, registered trademark

is not generic.

13 Rather than relying upon edited dictionaries, Capital City points to late produced user- generated online content which itself acknowledges that no representations of accuracy can be made. See fn. 1.

25

4. Respondent’s Use of the MUMBO mark

The manner in which a trademark owner uses a term may directly impact its significance to the public. Thus, a genericness analysis must consider Select Brands’ use of the term

MUMBO®. STK LLC, 2012 WL 2024459, at *18. Select Brands consistently uses MUMBO as a source identifier for a brand of barbecue sauce on its product labels and website, repeatedly referencing MUMBO® barbecue sauce with an ® symbol following the MUMBO mark. The product is offered in multiple flavors, including Original, Hickory, and Tangy (Hot), each available under the MUMBO® brand. Select Brands explicitly identifies the MUMBO® brand sauces by their generic term: barbeque sauce. Such consistent use by the brand owner provides additional support for a finding that the term is a trademark, not a generic term. Jacob

Zimmerman v. Nat’l Ass’n of Realtors, 70 U.S.P.Q.2d 1425, 1430 (T.T.A.B. 2004).

Ignoring the actual product labels produced by Select Brands, Petitioner relies upon photographs of Registrant’s product labels used in promotional materials in an attempt to argue that Select Brands has used the term generically on its labels. Petitioner’s Trial Br. at p. 9 citing

Collins Exs. 135-137, 139, and 143. As can be seen by looking at both the advertisements and the product labels themselves, this assertion is simply not true.

It is Select Brands’ policy to ensure that the MUMBO® mark is used consistently as a

trademark in its advertising and promotional materials. (Collins at p. 37-38). Select Brands is

unaware of any instances in which the policy has not been followed. (Collins at p. 38). Each of

the Select Brands labels cited by Petitioner includes the generic name barbecue sauce on the

label following the MUMBO® brand mark. Each of the products pictured in the exhibits

referenced by Capital City display the labels shown as Collins Ex. 111, which include the phrase

“America’s Finest Bar-B-Q Sauce” following the brand name Mumbo® Sauce which takes

primary prominence. (See excerpt from Collins Ex. 111 below).

26

In the larger size bottles shown in the Exhibits cited by Petitioner, the Bar-B-Q Sauce designation appears inside the red logo immediately following the trademark MUMBO®. (See, e.g., Collins Ex. 139, 143)

Further, many of the advertisements cited by Petitioner contain text describing the generic type of product as barbecue sauce. In Collins Ex. 135, in addition to showing the product 27

label with the Bar-B-Q sauce designation described above, the advertisement reads

“Use your Preferred Card to purchase one or more of either Magnolia Spice Tea, Mumbo

Barbecue Sauce, or New Orleans Creole Potato .” (Collins Ex. 135). Collins Exhibit 136, in

addition to showing the product labels with the Bar-B-Q sauce designation, also includes the text

“Celebrating 50 Years as Chicago’s Original Homestyle Barbecue Sauce.” The backside of this

same document, identified as Exhibit 137 includes three additional references to the generic type

of product as Bar-B-Q Sauce: “Stock the Flavor Your Customers Favor Mumbo® Bar-B-Que

Sauce”; “For nearly 50 years, the savory, homestyle flavor of Mumbo® BBQ Sauce has made

taste buds standup and dance!”; and “Carefully blended using all natural ingredients and a time-

honored recipe, Mumbo® BBQ Sauce brings out the pure homestyle goodness in everything you

grill – ribs, chops, burgers, even fish.” (Collins at p. 69-70; Ex. 137). The page also includes a statement at the bottom that “Mumbo® Sauce is a registered trademark of Select Brands LLC.

These uses further illustrate that Select Brands consistently uses the term mumbo as a

trademark and source identifier and not as a term for a generic category of goods. Petitioner has

presented no evidence to the contrary.

5. Effective Policing of the Mark

Finally, as described in detail above, Select Brands has continuously and effectively policed misuse of its mark resulting in both Green Mountain Grills and thesauces.com changing the name of the products that they offer. The fact that recipients of Select Brands’ correspondence complied with respondent’s request to cease use of the trademark supports recognition of the mark as a trademark rather than generic term. In re America Online Inc., 77

U.S.P.Q.2d 1618, 1622-1623 (T.T.A.B. 2006) (relying upon recognition of the trademark rights of the application by policed parties as evidence of trademark use).

28

VII. CONCLUSION

Because Capital City has failed to prove either count of this Cancellation Proceeding, both Counts must be dismissed and Registrant’s trademark registration sustained.

Respectfully submitted,

SELECT BRANDS, LLC

/ Julianne M. Hartzell/ June 17, 2013 MARSHALL, GERSTEIN & BORUN LLP Michael Graham Julianne M. Hartzell Kate Nuehring 233 South Wacker Drive 6300 Willis Tower Chicago, Illinois 60606-6357 Telephone: (312) 474-6300 Facsimile: (312) 474-0448

29

CERTIFICATE OF FILING

The undersigned affirms that the foregoing REGISTRANT’S TRIAL BRIEF was filed with the Trademark Trial and Appeal Board via the ESTTA electronic filing system on the date below.

Dated: June 17, 2013 _/Julianne M. Hartzell /______Julianne M. Hartzell, Esq.

CERTIFICATE OF SERVICE

The undersigned affirms that the foregoing REGISTRANT’S TRIAL BRIEF was served by electronic mail upon the following:

Asia Johnson, counsel for Capital City, LLC [email protected]

Dated: June 17, 2013 _/ Julianne M. Hartzell/______Julianne M. Hartzell, Esq.

30