ESTTA Tracking number:
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`ESTTA1335142
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`Filing date:
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`01/19/2024
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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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`92083028
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Plaintiff
`Kaylee Tutrow
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`LEO M LOUGHLIN
`ROTHWELL FIGG ERNST & MANBECK PC
`901 NEW YORK AVENUE NW
`SUITE 900 EAST
`WASHINGTON, DC 20001
`UNITED STATES
`Primary email: PTO-TM-Email@rfem.com
`Secondary email(s): lloughlin@rfem.com
`202-783-6040
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`Opposition/Response to Motion
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`Leo M. Loughlin
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`PTO-TM-Email@rfem.com, lloughlin@rfem.com
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`/Leo M. Loughlin/
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`01/19/2024
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`Attachments
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`3693-119PET BRIEF.pdf(152147 bytes )
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`______________________________
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`Kaylee Tutrow,
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`Petitioner,
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`v. :
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`The Pennsylvania State University, :
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`Registrant.
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`______________________________ :
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`Cancellation No. 92083028
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`PETITIONER’S BRIEF IN OPPOSITION TO
`MOTION TO DISMISS
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Petitioner, Kaylee Tutrow (“Petitioner”), submits her brief in opposition to Registrant The
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`Pennsylvania State University’s Motion to Dismiss (“9 TTABVUE”). For the reasons specified
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`below, Registrant’s Motion to Dismiss should be denied.
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`Petitioner has standing to bring the Petition for Partial Cancellation (“1 TTABVUE”) since
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`Petitioner has alleged facts establishing that: (1) Petitioner has a real interest in the outcome of the
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`proceeding through her continued use of “for the kids” in philanthropic and charitable events,
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`which benefit Riley Hospital, CMNH, or other children’s hospitals; and (2) Petitioner reasonably
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`believes that she will be damaged by the continued registration of the mark shown in Registration
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`No. 5,959,200 in Classes 25 and 36. Consequently, Petitioner meets the minimum standing
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`requirement and has therefore sufficiently pleaded legal grounds to oppose the registration.
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`BACKGROUND
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`Petitioner has specifically pleaded that, prior to the filing date of Registration No.
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`5,959,200, Petitioner has used the phrase “for the kids” to indicate support for philanthropic and
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 2 of 13
`charitable events, which benefit Riley Hospital, CMNH, or other children’s hospitals; and
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`Petitioner identified that numerous third parties extensively use the phrase “for the kids” to show
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`support for philanthropic and charitable events. See 1 TTABVUE at ¶¶ 3, 8. Petitioner pleaded
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`that the phrase “for the kids” was widely used in these contexts since at least as early as 2011. Id.
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`at ¶ 9. Petitioner continues to be actively involved in charitable events using “for the kids”,
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`including Jagathon as an alumna and will serve as the Social Media and Marketing Chair for “Rock
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`for Riley”, where she will be involved in planning future philanthropic and charitable events using
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`the phrase “for the kids”. Id. at ¶¶ 5-6. Thus, Petitioner has pleaded entitlement to a statutory cause
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`of action.
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`As pleaded in the Petition, Petitioner will be damaged by the continued registration of the
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`mark shown in Registration No. 5,959,200 in Classes 25 and 36, since Registrant is not entitled to
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`claim trademark protection in a phrase that is either descriptive or generic. Moreover, Petitioner
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`has pleaded facts showing that she has a real interest in the outcome of the cancellation of
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`Registrant’s mark. As such, the Motion to Dismiss should be denied.
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`A. Legal Requirements for Standing
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`ARGUMENT
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`In order to withstand a motion to dismiss, a petitioner need only allege facts that would
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`establish that: (1) she has standing; and (2) there is a valid statutory ground for cancelling the
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`registration. See Corporacion Habanos, S.A. & Empresa Cubana del Tabaco v. Rodriguez,
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`Cancellation No. 92052146, 2011 WL 3871952, at *1 (T.T.A.B. Aug. 1, 2011) (citing Fair Indigo
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`LLC v. Style Conscience, 85 U.S.P.Q.2d 1536, 1538 (T.T.A.B. 2007)).
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`“Proof of [entitlement to a statutory cause of action] in a Board opposition is a low
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`threshold, intended only to ensure that the plaintiff has a real interest in the matter, and is not a
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 3 of 13
`mere intermeddler.” Syngenta Crop Prot., Inc. v. Bio-Chek, LLC, 90 U.S.P.Q.2d 1112, 1117 n.8
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`(T.T.A.B. 2009). This standard requires the Petitioner to plead “sufficient factual matter, accepted
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`as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), and “raise a right to relief
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`above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal
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`Practice and Procedure § 1216, 235-236 (3d ed. 2004)).
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`Therefore, for Petitioner to establish standing, she need only show: (1) a real interest in the
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`outcome of the proceeding; and (2) a reasonable belief of damage that is proximately caused by
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`registration of Registrant’s Mark. See, e.g., Ritchie v. Simpson, 170 F.3d 1092, 1095-97 (Fed. Cir.
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`1999). A “real interest” can be adequately pleaded by showing that the Petitioner is engaged in the
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`use of the same or similar mark for the same or related goods or services, and Petitioner has a
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`sufficient interest in using the descriptive term, see, e.g., Lego Juris A/S v. Once Kids LLC, Opp.
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`No. 91228548, 2022 WL 3593731, at *2 (T.T.A.B. Aug. 18, 2022); TBMP § 309.03(b) (2023). A
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`petitioner can have a “real interest” in the proceedings with “no financial interest in the
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`registration.” Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d 246, 252
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`(D.D.C. 2010) (citing Ritchie, 170 F.3d at 1097). With respect to the reasonable belief of damage
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`prong, the Board has held that “damage will be presumed or inferred when the mark sought to be
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`registered is descriptive of the goods and the [petitioner] . . . is one who has sufficient interest in
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`using the descriptive term in its business.” Remington Prods. Co. v. Anibal De Oliveira Fortuna,
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`Opp. No. 91200803, 2012 WL 6654128, at *3 (T.T.A.B. Dec. 11, 2012) (citation and internal
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`quotation marks omitted). Furthermore, “neither § 1064 nor [Federal Circuit] precedent require
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`that [the Petitioner] in a cancellation proceeding must prove that [she] has proprietary rights in
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`[her] own mark in order to demonstrate a real interest in the proceeding and a belief of damage.”
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 4 of 13
`Kaszuba v. Iancu, 823 F. App’x 973, 979 (Fed. Cir. 2020) (quoting Australian Therapeutic
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`Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1374 (Fed. Cir. 2020), cert. denied, 142 S.
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`Ct. 82 (2021)).
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`For purposes of determining standing on a motion to dismiss, all of Petitioner’s well-pled
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`allegations must be accepted as true, and the petition must be construed in the light most favorable
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`to the Petitioner. See Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157,
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`1161 (Fed. Cir. 1993); see also Ritchie, 170 F.3d at 1097 (“For purposes of ruling on a motion to
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`dismiss for want of standing, a reviewing court must accept as true all well-pled and material
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`allegations of the complaint, and must construe the complaint in favor of the complaining party.”).
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`While this requires more than simply referencing the specific section of the Trademark Act, see
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`Demon Int’l LC v. Lynch, 86 U.S.P.Q.2d 1058, 1059 (T.T.A.B. 2008), a petitioner need only set
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`forth the elements to a statutory ground with enough facts to constitute a plausible claim, see
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`Petroleos Mexicanos v. Intermix S.A., 97 U.S.P.Q.2d 1403, 1405-1406 (T.T.A.B. 2010) (holding
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`petitioner sufficiently pleaded the elements of Section 2(a) and 2(d) claims).
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`Petitioner in this instance has pleaded more than sufficient facts to constitute a plausible
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`claim that Registrant’s Mark is either generic or descriptive. Whether Petitioner has proven her
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`allegations or not is irrelevant to determining whether she has sufficiently pleaded her allegation
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`to survive a motion to dismiss. See Advanced Cardiovascular Sys., 988 F.2d at 1160 (“Such a
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`motion, which cuts off a claimant at the threshold, must be denied ‘unless it appears beyond doubt
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`that the plaintiff can prove no set of facts in support of his claim which would entitle him to
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`relief.’”) (citation omitted). For the reasons explained below, Petitioner has clearly pleaded her
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`claims sufficiently.
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`B. Petitioner Has Standing
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 5 of 13
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`Registrant alleges that Petitioner lacks standing to bring a statutory cause of action to
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`cancel the Registrant’s mark. See 9 TTABVUE at 3-4. Registrant’s position is without merit.
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`Registrant's argument not only misrepresents the facts underlying this proceeding, but also is
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`entirely unfounded as a matter of law.
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`Entitlement to bring a statutory cause of action is a threshold requirement that must be
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`established in every case. PUMA SE v. Advance Inspiration, LLC, Opp. No. 91249192, 2021 WL
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`822669, at *2 (T.T.A.B. Feb. 26, 2021). A petitioner must have a real interest in the proceedings
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`and must have a reasonable basis for her belief of damage. Ritchie, 170 F.3d at 1095. Here,
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`Petitioner easily meets these requirements, especially considering the liberal threshold established
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`by the Federal Circuit. See 503 Sports LLC v. Nat’l Ass’n of Prof’l Baseball Leagues, Inc., Opp.
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`No. 91243580, 2021 WL 1904929, at *2 (T.T.A.B. May 6, 2021).
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`With respect to the first prong, Petitioner has a real interest in the cancellation because she
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`has pleaded and shown that both parties engage in planning and promoting fundraising events
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`benefiting children’s hospitals. This is sufficient to show that Petitioner has an “interest falling
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`within the zone of interests” protected by 15 U.S.C. § 1064. See Corcamore, LLC v. SFM, LLC,
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`978 F.3d 1298, 2020 U.S.P.Q.2d 11277, at * 6-7 (Fed. Cir. 2020), cert. denied, ___ U.S. ___
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`(2021). With respect to the second prong, where, as here, descriptiveness or genericness of the
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`mark is in issue, the Board has held that damage will be presumed or inferred when the Petitioner
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`has sufficient interest in using the descriptive term in its business. Remington Prods. Co., 2012
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`WL 6654128, at *3; see also TBMP § 309.03(b)(2023). Damage is presumed for such marks
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`because “registration thereof with the statutory presumptions afforded the registration would be
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`inconsistent with the right of another person to use [the mark] in connection with the same or
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 6 of 13
`similar goods as it would have the right to do when and if it so chooses.” Petra Pet, Inc. v. Aspen
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`Pet Prods., Inc., Opp. No. 91154069, 2005 WL 488442, at *2 (T.T.A.B. Feb. 17, 2005).
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`Registrant’s reliance on Curtin v. United Trademark Holdings, Inc., Opp. No. 91241083,
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`2023 WL 3271038 (T.T.A.B. May 4, 2023), is misplaced. In Curtin, the Board concluded that a
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`consumer plaintiff does not fall within the “zone of interest” of the Trademark Act. Id. at *3-4.
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`Here, Petitioner is not a consumer. Rather, Petitioner holds positions where she is involved in
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`planning and promoting fundraising events to support children’s hospitals. See 1 TTABVUE at ¶¶
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`4-6. Furthermore, she has a continued interest in using the phrase “for the kids” in a descriptive
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`manner to describe future events benefiting children’s hospitals. Id. She has been actively involved
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`in Jagathon as an alumna and plans to be involved in Rock for Riley as an alumna after serving in
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`her role as the Social Media and Marketing Chair for that organization. The Board has held that
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`“[i]t is not necessary to show a current need or use of a descriptive term, it is sufficient that the
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`term is descriptive of the goods [or services] and [Petitioner] has shown a demonstrable interest in
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`using the term descriptively.” Lego Juris A/S, 2022 WL 3593731, at *3. Petitioner has clearly
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`alleged that she has done so.
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`Registrant’s reliance on Automattic, Inc. v. Pearson, Chris, Cancellation No. 92061714,
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`2017 WL 2297914, at *2 (T.T.A.B. Apr. 20, 2017) is similarly misplaced. In Automattic, “the
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`petition to cancel [did] not contain any allegations regarding the nature of Petitioner's business or
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`the marks under which such business is conducted.” Id. at *3. Here, not only has Petitioner pleaded,
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`but she has even provided evidence of her need to use the phrase comprising the mark and the
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`nature of her philanthropic activities in the Petition. See 1 TTABVUE at ¶¶ 4-6.
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`Registrant cites to TowGo, LLC v. TH2connect, LLC, Opp. No. 91256013, 2020 WL
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`7640354, at *2 (T.T.A.B. Dec. 16, 2020), but neither the facts nor the legal analysis in this case
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 7 of 13
`are analogous to the case at hand. In TowGo, the Board held that the Applicant did not have
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`standing for its counterclaim against the Opposer because the “Opposer has not ‘asserted’ the
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`[mark-at-issue] against Applicant as a basis for Opposer's likelihood of confusion claim . . . .” Id.
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`at *3 (emphasis added). Here, Petitioner is not a counterclaimant in an opposition based on
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`likelihood of confusion. See id. Rather, Petitioner has alleged sufficient facts to constitute a
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`plausible claim to support her entitlement to seek cancellation of the trademark FOR THE KIDS
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`in Classes 25 and 36 based on descriptiveness or genericness. See, e.g., 1 TTABVUE at ¶¶ 4-6.
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`Moreover, Petitioner has in fact (i) provided evidence of her desire and need to use the
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`term “for the kids” descriptively; (ii) specifically pleaded that she has used the phrase “for the
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`kids” to show her support for the philanthropic and charitable events that she attended prior to the
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`filing date of the mark, and (iii) that she continues to be actively involved in Jagathon as an alumna
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`and will serve as the Social Media and Marketing Chair for Rock for Riley, where she will be
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`involved in planning future philanthropic and charitable events benefiting children’s hospitals. See
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`1 TTABVUE at ¶¶ 3, 5-6.
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`Registrant contends that the majority of Petitioner’s allegations relate to descriptive uses
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`of the phrase “for the kids” by third parties. See 9 TTABVUE at 5. In addition to being evidence
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`that “for the kids” is either descriptive or generic, this allegation is irrelevant to the question of
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`whether Petitioner has adequately pleaded standing. At this stage, Petitioner only needs to plead
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`sufficient facts to constitute a plausible claim. See Advanced Cardiovascular Sys., 988 F.2d at
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`1160. Petitioner has pleaded a statutory cause of action for cancellation of a registered trademark
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`under 15 U.S.C. § 1064, by demonstrating (1) her own descriptive use of the term for the same
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`services and her present and prospective interest in using the term; and 2) that she has a reasonable
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`basis for her belief of damage. See, e.g., 1 TTABVUE at ¶¶ 3, 5-6, 20, 22-24. Moreover, “[t]he
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 8 of 13
`crux of the matter is not how many others share one’s belief that one will be damaged by the
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`registration, but whether that belief is reasonable and reflects a real interest in the issue.” Ritchie,
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`170 F.3d at 1097. Petitioner in this instance has pleaded sufficient facts to constitute a plausible
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`claim to survive a motion to dismiss. See, e.g., 1 TTABVUE at ¶¶ 3, 5-6, 20, 22-24.
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`Registrant asserts that Petitioner only attends philanthropic events put on by others, which
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`is simply not true as is clearly demonstrated in the Petition. See Motion to Dismiss at 6. First,
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`contrary to Registrant's assertions, Petitioner has pleaded, and provided sufficient evidence, that
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`she has a personal stake in the outcome of the proceedings. Petitioner pleaded that: (1) she
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`personally raised over $14,000 for Riley Hospital; (2) that she is actively involved in Jagathon, a
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`student run organization to support children’s hospitals; and (3) that she will serve as the Social
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`Media and Marketing Chair for Rock for Riley in the future. See 1 TTABVUE at ¶¶ 4-6.
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`Specifically, Petitioner served as Rock for Riley President for three consecutive years prior to her
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`role as the Social Media and Marketing Chair. In her role as President, she actively planned
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`fundraising events such as annual concerts and 5K marathons where she, and others, used the
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`phrase “for the kids” descriptively to show their support for the events. Notwithstanding
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`Petitioner’s specific allegations of interest in the outcome of the proceedings, the Board clarified
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`that parties without proprietary rights in a mark or without even asserting that it has a right or
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`interest in using the mark, can have the requisite real interest in the outcome of the proceedings.
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`See, e.g. The Bd. of Trs. of the Univ. of Ala. v. Pitts, 107 U.S.P.Q.2d 2001, *6 (T.T.A.B. 2013)
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`(“Bryant Jr. is the son of Coach Bryant. In view of this association, Bryant, Jr.’s familial
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`connection to Coach Bryant and Bryant, Jr.’s arrangement with the University in connection with
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`the use of the Houndstooth Pattern, Bryant, Jr. has standing.”); Bromberg v. Carmel Self Serv.,
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`Inc., 198 U.S.P.Q. 176 (T.T.A.B. 1978) (the Board granted standing to two women, who were
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 9 of 13
`members of the general public, who brought an opposition on the ground that they believed that
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`they would be damaged and defamed by the registration of the mark.). In fact, the Federal Circuit
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`has stated that “[i]n no case has this court ever held that one must have a specific commercial
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`interest, not shared by the general public, in order to have standing as [a petitioner]. . . . The Board
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`itself has recognized that standing may be granted to members of a group who make up more than
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`half of the general population.” Ritchie, 170 F.3d at 1096-97.
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`Registrant’s reliance on Bertoldi v. Majestics Car Club, Inc., Cancellation No. 92065546,
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`2022 WL 873726, at *9-13 (T.T.A.B. Mar. 21, 2022) is equally inapposite. The Board in Bertoldi
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`held that the Petitioner did not have standing as a competitor because he was “an unofficial lifetime
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`member of the Majestics Car Club . . . and there is no testimony or other evidence that he has
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`suffered a direct, personal injury . . . .” Id. at *10, 13. As a preliminary matter, the analogy with
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`the case at issue is misplaced because the Petitioner in Bertoldi did not seek cancellation of the
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`mark at issue based on descriptiveness or genericness, but on the grounds of dilution by blurring,
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`ownership, and deceptiveness. Id. at *1. Interestingly, the Board in Bertoldi noted that “in fraud
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`and genericness case[s], members of [an organization] have ‘real interest in the proceeding’ to
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`cancel registration of their [organization]’s name; ‘the record establishes each petitioner’s interest
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`in the case beyond that of the general public.’” Id. at *13 (citing Stocker v. Gen. Conf. Corp. of
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`Seventh-Day Adventists, 39 U.S.P.Q.2d 1385, 1387 n.4 (T.T.A.B. 1996)).
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`Here, because Petitioner has established that she has a “real interest” in the Cancellation
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`and a “reasonable” basis for believing that she will be damaged by Registrant's Mark, Petitioner’s
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`claim is legally sufficient.
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`Registrant argues that Petitioner has not adequately pled descriptive use because the use of
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`the phrase “for the kids” for a charitable organization is “non-commercial” and “non-source
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 10 of 13
`identifying” and because Registrant has not taken any action against Petitioner for her use.
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`Registrant’s arguments are without merit.
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`First, as explained in detail above, when descriptiveness or genericness of the mark is in
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`issue, a petitioner may plead her entitlement to a statutory cause of action by alleging that she
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`operates within the same or related charitable enterprises and has an interest in using the term
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`descriptively. See, e.g., Lego Juris A/S, 2022 WL 3593731, at *2; TBMP § 309.03(b) (2023).
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`Petitioner did just that. She supported her entitlement to a valid statutory ground for cancelling the
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`registration of the trademark FOR THE KIDS as a descriptive or generic phrase by pleading that
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`(i) she is engaged in planning and promoting fundraising events for philanthropic and charitable
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`organizations supporting children’s hospitals and (ii) has an interest in using the phrase “for the
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`kids” descriptively in that context. See 1 TTABVUE at ¶¶ 4-7. The non-commercial nature
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`argument is equally unavailing. The Board has acknowledged that, while trademark law is
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`traditionally applied to commercial settings, and its language is awkward to fit to other settings,
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`“it has been established that [non-commercial organizations] are entitled, no less than are
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`commercial enterprises, to the protection of trademark laws.” See, e.g., Stocker, 39 U.S.P.Q.2d at
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`*7; see also Corporacion Habanos, 2011 WL 3871952, at *3 (“A petitioner’s standing may be
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`rooted in enforceable rights despite the existence of the strictures of the Cuban embargo …
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`petitioners have alleged a real interest for standing, allowing them to petition to cancel
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`respondent’s registration.”); and Dep’t of Transp., Fed. Aviation Admin. v. Scanwell Labs., Inc.,
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`170 U.S.P.Q. 174 (T.T.A.B. 1971) (Wherein a governmental agency was successful in canceling
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`a registration). Finally, Petitioner argues that the pleaded use of the phrase “for the kids” for a
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`charitable organization is “non-source identifying”. That is correct. In fact, the phrase “for the
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`kids” is incapable of identifying any entity as source. “For the kids” did not serve at the time of
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 11 of 13
`registration – and does not today serve – as a source-identifying mark, rather, it is used in a non-
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`distinctive manner and as tagline used by countless philanthropic organizations across the country
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`for events or an actions that would benefit an organization or children’s hospitals. See 1
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`TTABVUE at ¶ 10.
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`Second, Registrant does not have to take any action against Petitioner for her to have
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`standing as the registration accords the Registrant rights that it should not have. The Board has
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`noted that “[t]o put [Registrant] in possession of a right it does not have, which it might at any
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`time decide to assert..., would, in our opinion, be damaging... since it could at least be used to
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`harass [Petitioner] into ceasing use of [the term] on pain of defending a lawsuit.” Univ. of Kentucky
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`v. 40-0, LLC, Opp. No. 91224310, 2021 WL 839189, at *8 (T.T.A.B. Mar. 4, 2021) (quoting De
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`Walt, Inc. v. Magna Power Tool Corp., 289 F.2d 656, 661 (C.C.P.A. 1961)). The fact that
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`Registrant, to this day, decided not to actively enforce its Registration against third party use is no
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`guarantee or indication that it will continue to do so in the future.
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`Registrant cites Lumiere Prods., Inc. v. Int’l Telephone & Telegraph Corp., 227 U.S.P.Q.
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`892 (T.T.A.B. 1985), but the facts in this case are not analogous to the case at hand. The Board in
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`Lumiere found that the Petitioner had no real interest in the controversy because “[t]here is not a
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`scrap of evidence in the record concerning [the Petitioner]’s use of ‘minicom’ as a trademark, or
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`of its use of this term as part of its trade name, or of any commercial activities of this firm in the
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`manufacture or sale of intercom systems.” Id. at *1. Here, the Petitioner has pleaded and provided
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`evidence of not only her own use of the phrase “for the kids” in a non-distinctive manner to
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`describe an event or action that could benefit children, but also its widespread use by several
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`different philanthropic organizations across the country. See 1 TTABVUE at ¶ 10.
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 12 of 13
`In light of the foregoing, Petitioner has demonstrated its entitlement to bring the statutory
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`cause of action to file a petition to cancel the trademark FOR THE KIDS in Classes 25 and 36
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`under 15 U.S.C. § 1064(1) and/or 15 U.S.C. § 1064(3).
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`Finally, Registrant seeks dismissal on the ground that Petitioner is not herself a charitable
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`or philanthropic organization and thus lacks a direct and personal stake in the outcome of the
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`proceeding. See 1 TTABVUE at 7. To do so, it attempts to use Bertoldi as precedent. If anything,
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`Bertoldi acknowledged that “in [a] genericness case, members of [an organization] have ‘real
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`interest in the proceeding’ to cancel registration of their [organization]'s name.” Bertoldi, 2022
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`WL 873726, at *13 (citing Stocker, 39 U.S.P.Q.2d at 1387 n.4). This argument is meritless because
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`the Federal Circuit has noted that “the Supreme Court emphasized that the categories of injury that
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`establish standing for an individual plaintiff are not limited to injuries that are distinguishable from
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`those suffered by the public . . . . [T]he fact that particular interests are shared by the many rather
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`than the few does not make them less deserving of legal protection through the judicial process.
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`Thus, instead of requiring a party to distinguish his injury from that of a large section of the public,
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`the Court only required that the party seeking review must, himself, be among the injured.” Ritchie,
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`170 F.3d at 1096 (citing Sierra Club v. Morton, 405 U.S. 727, 734, 735, 738 (1972)) (internal
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`citations omitted). Here, not only is Petitioner a member of various philanthropic and charitable
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`organizations involved in planning and promoting fundraising events to support children’s
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`hospitals, but she also holds leadership positions in those organizations and has a continued interest
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`in using the phrase “for the kids” in a functional manner to describe future events hosted by those
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`organizations benefiting children’s hospitals. Id. Thus, Petitioner has alleged sufficient facts to
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`plausibly state that she has a direct and personal stake in the outcome of the proceeding.
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`Petitioner’s Brief In Opposition To
`Motion To Dismiss Petition for Cancellation
`Page 13 of 13
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`CONCLUSION
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`For the reasons specified above, Petitioner has shown that she has standing and has pleaded
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`a legally sufficient claim. Petitioner respectfully requests that the Board deny Registrant’s Motion
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`and promptly resume the proceeding. Alternatively, in the event the Board grants the Motion to
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`Dismiss, Petitioner requests leave to amend the Petition.
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`Date: January 19, 2024
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` Respectfully submitted,
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`By: /Leo M. Loughlin/
` Steven Lieberman
` Leo M. Loughlin
` Davide F. Schiavetti
` Sheena X. Wang
` Rothwell, Figg, Ernst & Manbeck, P.C.
` 901 New York Ave., N.W.
` Suite 900 East
` Washington D.C. 20001
` Phone: (202) 783-6040
` PTO-TM-Email@rothwellfigg.com
` Attorneys for Petitioner Kaylee Tutrow
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`CERTIFICATE OF SERVICE
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`This is to certify that a copy of the foregoing PETITIONER’S BRIEF IN OPPOSITION TO
`MOTION TO DISMISS and have been served by email to:
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`Lucy Jewett Wheatley
`wheatley@mcguirewoods.com
`jpeyton@mcguirewoods.com
`charlacher@mcguirewoods.com
`trademarks@mcguirewoods.com
`MCGUIREWOODS LLP
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`On this 19th day of January, 2024.
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`/Robert P. Di Giovanni/
`Robert P. Di Giovanni
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