ESTTA Tracking number: ESTTA1472174
`Filing date: 10/24/2025
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`91300887
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`Party
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`Defendant
`Restoration Earth, LLC
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`Correspondence RESTORATION EARTH, LLC
`address 1990 SOUTH BUNDY DRIVE
`SUITE 630
`LOS ANGELES, CA 90025
`UNITED STATES
`Primary email: kpuckett@csheridanlaw.com
`1-(310) 994-5539
`Submission Other Motions/Submissions
`Filer's name Cole Sheridan
`Filer's email kpuckett@csheridanlaw.com
`Signature /s/Cole Sheridan
`Date 10/24/2025
`Attachments Notice of Related Case.pdf(2071821 bytes )
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`Case 2:24-cv-10668-DDP-AS Documen t9 Filed 12/16/24 Page 1 of 6 Page ID
`#:224
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`COLE R. SHERIDAN (SBN: 215109)
`LAW OFFICES OF COLE SHERIDAN
`1990 South Bundy Drive, Suite 630
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`Los Angeles, California 90025
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`Phone (310) 737-2073
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`Email: csheridan@csheridanlaw.com
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`Attorneys for Plaintiff Restoration Earth, LLC,
`a California Limited Liability Company
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
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`RESTORATION EARTH, LLC, a California CASE NO. 2:24—cv—10668 DDP (ASx)
`Limited Liability Company,
`NOTICE OF PENDENCY OF OTHER
`Plaintiff, ACTIONS OR PROCEEDINGS
`[L.R. 83-1.4.1]
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`Y
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`GRIFFITH LANDING, LLC, a California
`Limited Liability Company; JAMES “JIM”
`ADLER, an individual; WILLIAM “BILL”
`ADLER, an individual; JIM S. ADLER, P.C.,
`a Texas Professional Corporation; and DOES 1
`through 10, inclusive,
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`Defendants.
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`TO THE ABOVE-CAPTIONED COURT AND ALL INTERESTED PARTIES HERETO:
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`NOTICE IS HEREBY GIVEN THAT, pursuant to L.R. 83-1.4.1, Plaintiff RESTORATION
`EARTH, LLC, a California Limited Liability Company (“Plaintiff”’) by and through its attorney of
`record, hereby states that the following actions and/or proceeding(s) are pending and/or recently
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`decided, as more specifically described herein:
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`L, Case No. 24STCV32648; commonly known as Restoration Earth, LLC, a California
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`Limited Liability Company v. Griffith Landing, LLC, a California Limited Liability Company; et al. 1s
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`pending before the Superior Court of the State of California for the County of Los Angeles — Central
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`District - Unlimited Jurisdiction (referred to herein as the “State Court Case’), regarding the same
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`Case 2:24-cv-10668-DDP-AS Documen t9 Filed 12/16/24 Page 2 of 6 Page ID
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`parties to the above-captioned matter, including but not limited to Defendants JAMES “JIM” ADLER,
`Defendant WILLIAM “BILL” ADLER, and Defendant JIM S. ADLER, P.C. (collectively, the “Adler
`Defendants”).
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`Z. Case No. 3:19-cv-02025-K, commonly known as Adler; et al. v. McNeil Consultants,
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`LLC:; et al. [referred to herein as the “McNeil Case”] was decided on or about August 28, 2023 by the
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`U.S. District Court for the Northern District of Texas (the “TX District Court™), regarding the Adler
`Defendants as plaintiffs involving the same trademarks at issue in the above-captioned matter.
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`3, The matter before the above-captioned district court arises under federal law, namely
`17 U.S.C. §1051 et seq. (Lanham Act). The Court has subject matter jurisdiction over this action under
`28 U.S.C. §1331 (federal question), 28 U.S.C. §1338(a) (trademarks), and 28 U.S.C. §2201
`(Declaratory Judgment Act), as the case involves Plaintiff’s request for declaratory judgment for non-
`infringement of trademarks under federal law with respect to its use and registration of what is
`collectively referred to below at the “H&N Marks”. For purposes of reference, based on the
`applications filed by Plaintiff, the USPTO issued the following US Serial Numbers to three (3) separate
`trademarks respectively: (1) 98423825; (i1) 98423304; and (111) 98515823 (collectively, the “H&N
`Marks”), appearing as follows in both stylized form [i.e. Mark Drawing Type 3 — an illustration
`drawing which includes word(s)/letter(s)/number(s)] as well as standard characters [1.e. Mark Drawing
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`Type 4 — a standard character mark] without claim to any particular font style, size or color:
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`Z100100(~ & :
`ails Law Hammer & Nails
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`CONSTRUCTION LAW FIRM
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`4. Plaintiff entered into an agreement, executed in Los Angeles, CA and under the
`governing laws of the State of California with Defendant GRIFFITH LANDING, LLC, a California
`Limited Liability Company (“Griffith Landing™), licensing and/or assigning certain use rights of the
`H&N Marks by Plaintiff to Griffith Landing and containing certain representations and warranties
`regarding its originality and use rights.
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`d. On or about December 2, 2024, Plaintiff received a cease-and-desist demand letter from
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`Case 2:24-cv-10668-DDP-AS Documen t9 Filed 12/16/24 Page 3 of 6 Page ID
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`and/or on behalf of the Adler Defendants, claiming that Plaintiff’s applications to register the mark
`‘Hammer & Nails’ and the Hammer & Nails design marks were “likely to cause confusion” with
`federal registered trademarks owned by the Adler Defendants (referred to herein collectively as the
`“Adler Marks”).
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`6. Griffith Landing has made an actual demand for assurances from Plaintiff under threat
`of a breach regarding Griffith Landing’s ability to use and/or license the H&N Marks at issue in the
`above-captioned matter.
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`7 The Adler Marks at i1ssue (which each consist only of standard characters [i.e. Mark
`Drawing Type 4 — a standard character mark] without any claim to any particular font style, size or
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`color): are as follows:
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`THE TEXAS HAMMER [U.S. Reg. No.3503851]
`HAMMER TIME [U.S. Reg. No. 3644185]
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`HAMMER TV [U.S. Reg. No. 3651822
`THE HAMMER [U.S. Reg. No. 3730395]
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`THE HAMMER LAW FIRM [U.S. Reg. No. 6292032]
`THE HAMMER LAWYER [U.S. Reg. No. 6383275]
`8. The Adler Defendants concluded that because each of the six (6) above-referenced
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`marks included the generic term “hammer”, they should be able to restrict all others from using the
`generic term “hammer” within their service marks, trade names and other distinctive designations.
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`9. To the contrary, the Ninth Circuit has maintained that generic terms are those that refer
`to the genus of which the particular product or service is a species, i.e., the name of the product or
`service itself. In order to determine whether a term is “generic” in a trademark context, courts look to
`whether consumers understand the word to refer only to a particular producer's goods/services or
`whether the consumer understands the word to refer to the goods themselves. Generic terms cannot be
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`valid marks subject to trademark protection.
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`Case 2:24-cv-10668-DDP-AS Documen t9 Filed 12/16/24 Page 4 of 6 Page ID
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`10. As detailed in Plaintiff’s complaint in the above-captioned matter (the “Complaint™),
`the Ninth Circuit’s holdings on “generic” terms have also been adopted both the TX District Court (as
`defined above) as well as the U.S. Court of Appeals for the 5™ District (the “Appellate Court”), wherein
`the Adler Defendants have been plaintiffs in the case referred to herein as the “McNeil Case™.
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`11. In dismissing the Adler Defendants’ claims in the McNeil Case, the TX District Court
`held, in material part, that (A) “...Defendants do not use Plaintiffs’ marks or any portion of Plaintiffs’
`marks [and] [w]here an advertisement does not incorporate the plaintiff’s trademark, there is no
`likelihood of confusion as a matter of law”’; and (B) that while Plaintiffs may argue that Defendant’s
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`ads are confusing because they “display generic terms that consumers might associate with any
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`personal injury firm”, “...Plaintiffs have no exclusive right to the use of those generic terms.” See,
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`“McNeil Findings” (adopted by the TX District Court and included as part of Exhibit 3 to the
`Complaint (beginning at page marked as Evidence Page 042, for purposes of reference)); 992, 3 on
`Evidence Page 056, 42 on Evidence Page 057.
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`12. The TX District Court’s opinion provided the Adler Defendants with a detailed
`explanation of how “The Lanham Act includes safeguards to prevent the commercial monopolization
`of language...” [McNeil Findings at 41 on Evidence Page 058] and that generic terms like a “hammer”
`are “...regarded by the law as free for all to use.” Id. The TX District Court further emphasized that
`“...dismissal of trademark infringement claims is appropriate when they are based on the use of
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`generic terms.” /d.
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`13. In its decision, the TX District Court further provided the Adler Defendants with a
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`series of legal authority to support its position, including but not limited to Am. Cyanamid Corp. v.
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`Connaught Labs., Inc., 800 F.2d 306, 308 (2d Cir. 1986) (dismissing a trademark infringement claim,
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`stating ““[a] trademark holder cannot appropriate generic or descriptive terms for its exclusive use, and
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`a trademark infringement finding thus cannot be based on the use of a generic... term”) [McNeil
`Findings at 1 on Evidence Page 058]; Scooter Store, Inc. v. SpinLife.com, LLC, No. 2:10-cv-18, 2011
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`WL 6415516, at *1 (S.D. Ohio Dec. 21, 2011), adhered to on denial of reconsideration, 2012 WL
`4498904 (S.D. Ohio Sept. 28, 2012) (dismissing trademark infringement claim and finding
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`no likelihood of confusion analysis necessary because generic terms “are not protectable and cannot
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`infringe [plaintiff’s trademark] based on creating consumer confusion” [/d. at 1]; Kegan v. Apple
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`Computer, Inc., No. 95 C 1339, 1996 WL 667808, at *1 (N.D. IIl. Nov. 15, 1996) (dismissing
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`trademark infringement claim, holding that the defendant “cannot be said to have infringed on
`[plaintiff’s] MACGUIDE trademark” where the generic term “—guide” is “not protectible and
`[defendant] should be able to use it freely”) [Id. at q1].
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`14. To date, Plaintiff has found no fewer than ten (10) law firms in the United States that
`currently and actively use the name “Hammer” in their branding, including five (5) attorneys branding
`themselves as variations of “The Hammer.” These include (1) Darryl Isaacs, “The Kentucky Hammer,”
`a personal injury attorney in Kentucky; (ii) The Illinois Hammer, a personal injury firm in Illinois;
`(111) Lowell “The Hammer” Stanley, a personal injury attorney in Virginia; (iv) The Wisconsin
`Hammer, a personal injury firm in Wisconsin; and (v) Karen K. Koehler, a personal injury attorney in
`the State of Washington, known as “The Velvet Hammer” [“The Velvet Hammer” 2011 trademark
`expressly referenced in ‘Exhibit 10’ to the stipulation entered into by Jim S. Adler, P.C. in the
`Concurrent Use Proceeding before the USPTO, as more specifically referenced in the Complaint at
`962]. Other notable uses of “Hammer” in law firm names include (1) The Hammer Law Firm, a
`criminal defense practice in St. Louis, Missouri; (11) Hammers, a personal injury firm in Georgia; (ii1)
`Hammer Law, PLLC, a lemon law firm in Arizona; (1iv) Hammer Law, PLLC, a corporate employment
`attorney in Raleigh, North Carolina; (v) Hammer Law Firm, a general practice law firm in Dubuque,
`Iowa; and (vi) Hammer Law, a medical malpractice and personal injury firm operating in Virginia and
`North Carolina.
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`15. While the U.S. Court of Appeals for the 5* District (the “Appellate Court™) reversed
`the TX District Court’s initial dismissal, the reasoning underlying the reversal was unique to “search-
`engine advertising” facts of the McNeil Case (as more specifically detailed in the Complaint) and
`neither undermines Plaintiff’s reliance of the TX District Court’s legal analysis of why “generic terms”
`are not afforded trademark protections nor Plaintiff’s request for declaratory relief in the above-
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`captioned matter. [See, e.g., “Appellate Ruling” as attached to the Compliant, at Y2 on Evidence Page
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`116, maintaining that “[i]t i1s true that the Lanham Act does not protect generic terms against
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`infringement. See Small Bus. Assistance Corp. v. Clear Channel Broad., Inc., 210 F.3d 278, 279 (5th
`Cir. 2000).”
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`16. The Appellate Court cited the Ninth Circuit in maintaining that “[w]here the factual
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`allegations regarding consumer confusion are implausible, for example, a district court may dismiss a
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`complaint on the basis that a plaintiff failed to allege a likelihood of confusion. See, e.g., Eastland
`Music Grp., LLC v. Lionsgate Ent., Inc., 707 F.3d 869, 871 (7th Cir. 2013); Murray v. Cable Nat’l
`Broad. Co., 86 F.3d 858, 860-61 (9th Cir. 1996).” 92 on p.9 of the “Appellate Ruling” as attached to
`the Compliant.
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`17. After remand to the TX District Court in August of 2021, the TX District Court filed
`under seal GRANTED in part Defendants’ Motion for Partial Summary Judgment on Plaintiff's
`Claims.
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`18. In both the above-captioned matter as well as Plaintiff’s case currently pending before
`the Superior Court of the State of California for the County of Los Angeles Central District (referred
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`to herein as the “State Court Case’) — Plaintiff is seeking declaratory relief with respect to its use and
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`registration of the H&N Marks. Plaintiff’s State Court Case however involves Plaintiff’s request for
`declaratory judgment for non-infringement of state and/or common law claims that are not at issue in
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`the above-captioned matter. Critically, no federal claims are at issue in the State Court Case.
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`DATED: December 12, 2024 Respectfully submitted,
`LAW OFFICES OF COLE SHERIDAN
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`By: /s/Cole Sheridan
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`COLE R. SHERIDAN
`Attorney for Plaintiff
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