Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1257419
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`Filing date:
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`01/02/2023
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
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`92080132
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`Party
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`Correspondence
`address
`
`Defendant
`Price4less DBA Choisie1
`
`TAMEIKA PRICE
`PRINCIPAL PRICE4LESS
`11816 INWOOD RD #3079
`DALLAS, TX 75244
`UNITED STATES
`Primary email: unot4gotten@gmail.com
`972-210-5556
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Reply in Support of Motion
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`Tameika Price
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`unot4gotten@gmail.com
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`/s/Tameika Price
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`01/02/2023
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`Attachments
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`Registrants Response Initial Disclosures.pdf(435275 bytes )
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`
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`ESTTA Tracking number:
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`ESTTA1257419
`
`Filing date:
`
`01/02/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`92080132
`
`Party
`
`Correspondence
`address
`
`Defendant
`Price4less DBA Choisie1
`
`TAMEIKA PRICE
`PRINCIPAL PRICE4LESS
`11816 INWOOD RD #3079
`DALLAS, TX 75244
`UNITED STATES
`Primary email: unot4gotten@gmail.com
`972-210-5556
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Reply in Support of Motion
`
`Tameika Price
`
`unot4gotten@gmail.com
`
`/s/Tameika Price
`
`01/02/2023
`
`Attachments
`
`Registrants Response Initial Disclosures.pdf(435275 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the matter of Trademark Registration No. 6542981
`Registrant: Price4less
`
`
`BLACKSTONE LABS, LLC,
`Petitioner,
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` §
` §
`§
` §
`§
` §
` §
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`v.
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`
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`PRICE4LESS, LLC
`Registrant.
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`Cancellation No. 92080132
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`REGISTRANT’S RESPONSE TO INTERLOCUTORY ATTORNEY’S ORDER DATED
`1/02/2023
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`On 10/12/2022, Registrant filed its motion for summary Judgment which was denied
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`without prejudice due to the issue that had initially not been pled. The Petitioner received
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`certificate of service per electronic email of Motion for Summary Judgment on 10/12/2022.
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`(Proof of Service attached)
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`Afterwards, Registrant filed an Answer and Affirmative Defenses to Amended Petition,
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`which contains the issue that had initially not been pled. Registrant also filed a motion for
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`summary judgment after filing the Answer and Affirmative Defenses to Amended Petition on
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`12/01/2022. The Petitioner received certificate of service per electronic email of Motion for
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`Summary Judgment on 12/01/2022. (Proof of Service attached)
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`The initial motion was allowed by this Board, even without Registrant’s initial
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`disclosures, which are due on 02/12/2023. The Board also found Registrant’s initial disclosure to
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`be merited because clearly, Petitioner cannot obtain a trademark for its unregistered mark.
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`
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`Federal Rules of Civil Procedure apply in these proceedings. Rule 56(b) provides thus:
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`“Unless a different time is set by local rule or the court orders otherwise, a party may file a
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`motion for summary judgment at any time until 30 days after the close of all discovery.”
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`There is no order issued by this Board which bars Registrant from filing a Rule 56 motion
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`for summary judgment. At this point, the parties are still conducting discovery. Therefore,
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`Registrant’s motion for summary judgment is proper before this Board.
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`The standard for motion for summary judgment is as follows:
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`Summary judgment is appropriate if “the pleadings, the discovery and disclosure
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`materials on file, and any affidavits shows that there is no genuine issue as to any material fact
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`and that movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c).
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`In deciding a summary judgment motion, the function of the Board is to determine if
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`there any genuine issues of material fact to be tried. Dyneer Corp. v. Automotive Products, Plc.,
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`37 U.S.P.Q.2d 1251, 1254 (TTAB 1995).
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`Summary judgment promotes judicial economy and avoids an unnecessary trial where
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`more evidence than is already available could not be reasonably be expected to change the result
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`in the case. Larami Corp. v. Talk To Me Programs, Inc., 36 U.S.P.Q.2d 1840, 1843 (TTAB
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`1995).
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`Once the moving party satisfies its burden in moving for summary judgment, the
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`nonmoving party may not rest on mere denials or conclusory assertions, but instead, must offer
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`countering evidence to establish that there is a genuine factual dispute for trial. Fed. R. Civ. P.
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`56(e).
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`37 CFR § 2.69 stipulates: “When the sale or transportation of any product for which
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`registration of a trademark is sought is regulated under an Act of Congress, the Patent and
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`Trademark Office may make appropriate inquiry as to compliance with such Act for the sole
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`purpose of determining lawfulness of the commerce recited in the application.”
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`The Act which generally governs trademarks, as well as in this case, is the Trademark
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`(Lanham) Act of 1946. § 43(a)(1) provides in relevant part as follows: “Any person who, on or
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`in connection with any goods or services, or any container for goods, uses in commerce any
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`word, term, name, symbol, or device, or any combination thereof, or any false designation of
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`origin, false or misleading description of fact, or false or misleading representation of fact, which
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`— (B) in commercial advertising or promotion, misrepresents the nature, characteristics,
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`qualities, or geographic origin of his or her or another person’s goods, services, or commercial
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`activities, shall be liable in a civil action by any person who believes that he or she is or is likely
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`to be damaged by such act.”
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`Thus, registration will not be refused based on the absence of lawful use in
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`commerce unless "either (1) a violation of federal law is indicated by the application record or
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`other evidence, such as when a court or a federal agency responsible for overseeing activity in
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`which the applicant is involved, and which activity is relevant to its application, has issued a
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`finding of noncompliance under the relevant statute or regulation, or (2) when the applicant's
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`application-relevant activities involve a per se violation of a federal law." In re Stanley Bros.
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`Soc. Enters., LLC, 2020 USPQ2d 10658, at *11 (quoting In re Brown, 119 USPQ2d at 1351); see
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`also Kellogg Co. v. New Generation Foods Inc., 6 USPQ2d.
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`
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`Petitioner violated multiple federal laws since using the unregistered mark,
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`including but not limited to, conspiracy (18 U.S.C. § 371), introduction of unapproved new drugs
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`into interstate commerce (21 U.S.C. §§ 331(d), 355(a), and 333(a)(2)), conspiracy to distribute
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`controlled substances (21 U.S.C. § 846), distribution of a controlled substance (21 U.S.C. §
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`841(a)(1)), possession with intent to distribute a controlled substance (21 U.S.C. § 841(a)), and
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`money laundering (18 U.S.C. § 1957). The foregoing illegalities for which Petitioner was found
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`culpable and was forced to forfeit money warrant the refusal of registration of Petitioner’s
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`alleged trademark.
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`
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`If the record indicates that the mark or the identified goods or services are unlawful,
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`actual lawful use in commerce is not possible. See In re PharmaCann LLC, 123 USPQ2d at
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`1124; In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016); John W. Carson Found. v.
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`Toilets.com, Inc., 94 USPQ2d 1942, 1948 (TTAB 2010). It is untenable for Petitioner to state
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`that it has a legal trademark whereas it used the unregistered mark to conduct the unlawful
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`activities listed above.
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`On 01/2015, Petitioner committed fraud in its trademark application no. 86816010 &
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`1/2021, no. 90497273, 18 USC Section 1001 for the name CHOSEN1 when it stated that it sells
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`dietary supplements when in fact its only record in commerce shows that Petitioner sold unlawful
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`controlled substances.
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`In trademark fraud cases, as in other fraud cases, the standard for finding intent to deceive
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`is stricter than the standard for negligence or gross negligence. A trademark is obtained
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`fraudulently under the Lanham Act only if the applicant or registrant knowingly makes a false,
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`material representation with intent to deceive the USTPO, and a party challenging a registration
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`must prove fraud by clear and convincing evidence. In re Bose Corp., 91 USPQ2d 1938 (Fed. Cir.
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`2009).
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`Tex. R. Disc. Prof’l. Cond. 3.01 provides: “A lawyer shall not bring or defend a proceeding,
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`or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis
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`for doing so that is not frivolous.”
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`
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`The comments attached to the above rule further stipulate:
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`1. The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but
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`also a duty not to abuse legal procedure. The law, both procedural and substantive, affects the
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`limits within which an advocate may proceed. Likewise, these Rules impose limitations on the
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`types of actions that a lawyer may take on behalf of his client. See Rules 3.02-3.06, 4.01-4.04,
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`and 8.04.
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`2. All judicial systems prohibit, at a minimum, the filing of frivolous or knowingly false
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`pleadings, motions or other papers with the court or the assertion in an adjudicatory proceeding
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`of a knowingly false claim or defense. A filing or assertion is frivolous if it is made primarily for
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`the purpose of harassing or maliciously injuring a person. It also is frivolous if the lawyer is
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`unable either to make a good faith argument that the action taken is consistent with existing law
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`or that it may be supported by a good faith argument for an extension, modification or reversal
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`of existing law.
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`3. A filing or contention is frivolous if it contains knowingly false statements of fact. The
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`petitioner representative was the same trademark attorney during the indictment.
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`4. A lawyer should conform not only to this Rules prohibition of frivolous filings or assertions
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`but also to any more stringent applicable rule of practice or procedure. For example, the duties
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`imposed on a lawyer by Rule 11 of the Federal Rules of Civil Procedure exceed those set out in
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`this Rule. A lawyer must prepare all filings subject to Rule 11 in accordance with its
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`requirements. See Rule 3. 04(c)(1).
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`The institution of these proceedings by Petitioner’s attorney is an abuse of this Board’s
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`legal procedure. This frivolous suit was started by Petitioner’s attorney for the sole purpose of
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`harassing Registrant. The Petition and subsequent Amended Petition drafted by Petitioner’s
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`attorney contain knowingly false statements of fact. The Petition and Amended Petition state that
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`Petitioner is in the business of selling dietary supplements when in fact its only record in
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`commerce shows that Petitioner sold unlawful controlled substances.
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`Rule 26(1)(C) of the Federal Rules of Civil Procedure states the following: “A party must
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`make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a
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`different time is set by stipulation or court order, or unless a party objects during the conference
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`that initial disclosures are not appropriate in this action and states the objection in the proposed
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`discovery plan.”
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`This Board issued a scheduling order which set the deadline for filing initial disclosures
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`as 02/12/2023. Registrant still has more time to file its initial disclosures. Therefore, the filing of
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`the attached initial disclosures is proper since they have been filed before the due date stipulated
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`by this Board.
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`Registrant hereby files the attached Initial Disclosures in response to the Interlocutory
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`Attorney ‘s Order dated 12/22/2022.
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`Dated this _2___ day of January 2023.
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`Respectfully Submitted,
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`
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`___________________________________
`Tameika Price
`Appearing in pro per on behalf of Price4less, LLC
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`
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`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the matter of Trademark Registration No. 6542981
`Registrant: Price4less
`
`
`BLACKSTONE LABS, LLC,
`Petitioner,
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`
`
`
`
`
` §
` §
`§
` §
`§
` §
` §
`
`
`v.
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`
`
`
`
`PRICE4LESS, LLC
`Registrant.
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`
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`Cancellation No. 92080132
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`REGISTRANT’S INITIAL DISCLOSURES
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`Pursuant to Federal Rule of Civil Procedure 26(a)(1), Registrant makes the following disclosures
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`to Petitioner in the above-captioned matter. These disclosures are based on information presently
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`known and reasonably available to the Registrant and which the Registrant reasonably believes it
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`may use in support of its claims and defenses. Continuing investigation and discovery may cause
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`the Registrant to amend these initial disclosures by identifying other potential witnesses,
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`documents and by disclosing other pertinent information. The Registrant therefore reserves the
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`right to supplement these initial pleadings. The Registrant objects to any disclosure of information
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`or documents beyond that which is required by the Federal Rules of Civil Procedure, the Federal
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`Rules of Evidence, the Local Rules of the Trademark Trial and Appeals Board, or other applicable
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`law, rule or order. By providing these initial disclosures, the Registrant does not represent that it
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`is identifying every document, tangible thing or witness possibly relevant to this action. In
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`addition, these disclosures are made without the Registrant in any way waiving its right to object
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`to any discovery request or proceeding involving or relating to the subject matter of these
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`
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`disclosures on any grounds, including competency, privilege, relevancy and materiality, hearsay,
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`undue burden, confidentiality, or any other appropriate grounds.
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`Furthermore, these disclosures are not an admission by the Registrant regarding any matter.
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`Each and every disclosure set forth below is subject to the above qualifications and
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`limitations.
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`DISCLOSURES
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`i.
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`The name and, if known, the address and telephone number of each individual
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`likely to have discoverable information —along with the subjects of that
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`information—that the disclosing party may use to support its claims or defenses,
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`unless the use would be solely for impeachment.
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`1) Tameika Price
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`Insert Address 11816 Inwood Rd #3079
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`Insert State & ZIP Code Dallas, Tx 75244
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`Insert Phone Number 9722105556
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`Insert Email : unot4gotten@gmail.com
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`Ms. Price is likely to have knowledge of the facts and circumstances relevant to this
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`action.
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`
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`ii.
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`A copy—or a description by category and location—of all documents,
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`electronically stored information, and tangible things that the disclosing party has
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`in its possession, custody, or control and may use to support its claims or defenses,
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`unless the use would be solely for impeachment.
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`
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`The following comprises the enumerated documents, data compilations, and other
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`tangible things in the possession, control or custody of the Registrant to which the
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`Registrant may use to support its claims or defenses in the instant action:
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`1) Department of Justice article on indictment of the founder of Blackstone Labs for
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`CHOSEN1 products.
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`2) Extracts from the Registrant’s website.
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`3) 60-day Notice of Proposition 65 Violation from Kevin J. Cole.
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`4) Indictment by the United States District Court
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`There may be additional documents whose relevance becomes known to the Registrant
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`during discovery or trial. The Registrant therefore reserves the right to amend or
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`supplement these disclosures if and as appropriate, and further reserves the right to rely
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`on any document identified by Petitioner or produced in this case by any party or any
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`third party.
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`5) FDA per case no. 447355 dated 04/24/2015 banning continuation in commerce for
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`CHOSEN1.
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`
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`iii.
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`A computation of each category of damages claimed by the disclosing party—who
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`must also make available for inspection and copying as under Rule 34 the
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`documents or other evidentiary material, unless privileged or protected from
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`disclosure, on which each computation is based, including materials bearing on
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`the nature and extent of injuries suffered.
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`Not Applicable.
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`iv.
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`For inspection and copying as under Rule 34, any insurance agreement under
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`which an insurance business may be liable to satisfy all or part of a possible
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`judgment in the action or to indemnify or reimburse for payments made to satisfy
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`the judgment.
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`The Registrant is not presently aware of any applicable insurance agreement.
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`Dated this __2__ day of January 2023.
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`Respectfully Submitted,
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`___________________________________
`Tameika Price
`Appearing in pro per on behalf of Price4less, LLC
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the __2___ day of January 2023, I filed the above Registrant’s Response
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`to Interlocutory Attorney’s Order and Initial Disclosures with the Trademark Trial and Appeal
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`Board of the United States Patent and Trademark Office. Further, I certify that a copy of the
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`foregoing was served on January 2, 2023 upon Blackstone Labs LLC, correspondent Jessica Leach
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`at the following email address of record: Jessica@arthurwleach.com
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`Jessica H. Leach
`The Law Office of Arthur W. Leach
`4080 McGinnis Ferry Rd., Suite 401
`Alpharetta, GA 30005
`jessica@arthurwleach.com
`(678) 799-0474
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`Dated this __2__ day of January 2023.
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`Respectfully Submitted,
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`___________________________________
`[Tameika Price]
`Appearing in pro per on behalf of Price4less, LLC
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`
`
`Cancellation No. 92080132 - Blackstone Labs, LLC - adv. Price4less - CHOISIE1(+design
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`e @
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`Not 4Gotten <unot4gotten@gmail.com>
`to Jessica +
`
`Take notice that a Motion for Summary Judgment has beenfiled
`Attached
`
`T. Price
`(972)210- 5556
`
`One attachment « Scanned by Gmail ©
`
`
`
`@ Motion for Summa... r
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`© Thu,Dec 1, 2022, 2:11AM
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`ig
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`GS
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`i
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`&
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`
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`Correctionfiling - Cancellation No. 92080132 - Blackstone Labs, LLC - D
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`6 GB
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`Not 4Gotten <unot4gotten@gmail.com>©SOct12,2022,1:56AMvr eS :
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`
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`to Jessica ¥
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`
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`My apologies, as the words were overlapping in the previous document and causing it fo be notlegible, so | had to fix the formatting and resubmit again. Take notice that a Corrected Motion
`for Summary Judgment has been filed
`
`Attached
`
`T. Price
`(972)210- 5556
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`One attachment + Scanned by Gmail ©
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`
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`@ Motion for Summa... y
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`&
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`
`
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