No. 14-1219 ________________________

IN THE

________________________

M.Z. BERGER & CO., INC.,

Appellant,

– v. –

SWATCH AG (SWATCH SA) (SWATCH LTD.), Appellee.

________________________

On Appeal From a Decision of the Trademark Trial and Appeal Board in Opposition No. 91187092

________________________

REPLY BRIEF OF APPELLANT ________________________

Samson Helfgott Jessica Garrett KATTEN MUCHIN ROSENMAN LLP 575 Madison Avenue New York, NY 10022 212-940-8800

Howard R. Rubin Counsel of Record Robert T. Smith Daniel Lipton* KATTEN MUCHIN ROSENMAN LLP 2900 K Street, NW – Suite 200 Washington, DC 20007 202-625-3500

Counsel for Appellant M.Z. Berger & Co., Inc.

* Licensed to practice only in New York; supervised by Principals of the Firm.

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CERTIFICATE OF INTEREST

Consistent with Federal Rule of Appellate Procedure 26.1 and

Federal Circuit Rule 47.4, counsel for Appellant M.Z. Berger & Co., Inc.

certifies the following:

1. The full name of every party or amicus represented by me is:

M.Z. Berger & Co., Inc.

2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is:

The real party in interest is the same as the party represented by me.

3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are:

M.Z. Berger & Co., Inc. is a privately-held company. There are no parent corporations or any publicly-held companies that own 10 percent or more of the stock of M.Z. Berger & Co., Inc.

4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are:

Katten Muchin Rosenman LLP: Howard R. Rubin, Samson Helfgott, Robert T. Smith, Jessica Garrett, Daniel Lipton, and Michael F. Sarney (no longer with Katten Muchin Rosenman LLP).

Dated: August 7, 2014 /s/ Howard R. Rubin x Howard R. Rubin Counsel for Appellant M.Z. Berger & Co., Inc.

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TABLE OF CONTENTS

CERTIFICATE OF INTEREST ................................................................. i TABLE OF AUTHORITIES ..................................................................... iv REPLY ARGUMENT ................................................................................ 1 I. M.Z. Berger Satisfied the Standard that Governs the Earliest

Stage of the Intent-to-Use Process .................................................. 2 A. The Standard Enacted By Congress Only Requires a

Bona Fide Intent to Use the Mark at a Later Date, Not Actual Promotion, Development, or Marketing Efforts ......... 5

B. M.Z. Berger Proffered Numerous Pieces of Objective Evidence Demonstrating Its Bona Fide Intent to Use the iWatch Mark at a Later Date ................................................. 9

C. Contrary to Swatch’s Argument, The Board Made No Finding of Bad Faith ............................................................. 15

D. Contrary to Swatch’s Argument, M.Z. Berger Is Not Limited to Documentary Evidence to Support Its Application ............................................................................ 17 1. The Statute Nowhere Requires Documentary

Evidence ....................................................................... 17 2. Swatch’s Insistence on Documentary Evidence Is

Contrary to Congressional Intent ................................ 18 3. The Board Has Never Previously Insisted on

Documentary Evidence ................................................ 19 4. What Distinguishes this Case From Past Cases Is

the Board’s Erroneous Insistence on Evidence of Promotion, Development, and Marketing Efforts ....... 21

II. The Board Correctly Found That There Is No Likelihood of Confusion Between the “iWatch” and “Swatch” Marks ................ 24 A. “Watch” Is A Generic and Descriptive Term that Carries

Little or No Significance In Evaluating Likelihood of Confusion ............................................................................... 25

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B. The Board Correctly Weighed the Factors in Finding No Likelihood of Confusion ........................................................ 29

C. Swatch Waived Its Argument Regarding “iSwatch” and “eSwatch” and Cannot Claim Likelihood of Confusion Based on These Marks .......................................................... 33

CONCLUSION ........................................................................................ 35 CERTIFICATE OF COMPLIANCE ........................................................ 36 CERTIFICATE OF SERVICE ................................................................. 37

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TABLE OF AUTHORITIES

CASES:

Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 525 F.3d 8 (D.C. Cir. 2008) ...................................... 8, 16, 17, 18, 34

Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350 (Fed. Cir. 2009) ................................................. 2, 3, 7

Boston Red Sox Baseball Club Ltd. P’ship v. Sherman, 88 U.S.P.Q.2d 1581, 2008 WL 4149008 (T.T.A.B. 2008) ......... 20, 21

Collagenex Pharms., Inc. v. Four Star Partners, No. 91150890, 2003 WL 22273118 (T.T.A.B. Sept. 24, 2003) (non-precedential) ................................................................................... 16

Cunningham v. Laser Golf Corp., 222 F.3d 943 (Fed. Cir. 2000) ......................................................... 27

Eastman Kodak Co. v. Bell & Howell Document Mgmt. Prods. Co., 994 F.2d 1569 (Fed. Cir. 1993) ................................................... 8, 14

Imedica Corp. v. Medica Health Plans, No. 91159617, 2007 WL 1697344 (T.T.A.B. June 7, 2007) (non-precedential) ............... 22, 23

In re Chamber of Commerce, 675 F.3d 1297 (Fed. Cir. 2012) ................................................. 28, 33

In re Nat’l Data Corp., 753 F.2d 1056 (Fed. Cir. 1985) ....................................................... 28

In re Save Venice N.Y., Inc., 259 F.3d 1346 (Fed. Cir. 2001) ......................................................... 3

Intel Corp. v. Emeny, No. 91123312, 2007 WL 1520948 (T.T.A.B. May 15, 2007) (non-precedential) ...................... 14, 16, 19

Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d 350 (Fed. Cir. 1992) ......................................................... 32

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Lane Ltd. v. Jackson Int’l Trading Co., 33 U.S.P.Q.2d 1351, 1994 WL 740491 (T.T.A.B. 1994) ................................................... 18

Miller v. Fenton, 474 U.S. 104 (1985) .......................................................................... 4

Nautilus Group, Inc. v. ICON Health & Fitness, Inc., 372 F.3d 1330 (Fed. Cir. 2004) ........................................... 26, 28, 29

On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080 (Fed. Cir. 2000) ......................................................... 4

Ornelas v. United States, 517 U.S. 690 (1996) .......................................................................... 4

Spirits Int’l, B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 U.S.P.Q.2d 1545, 2011 WL 2909909 (T.T.A.B. July 6, 2011) (non-precedential) ...................................... 8

Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150 (4th Cir. 2014) .................................................... 24, 27

Swatch Watch, SA v. Taxor, Inc., 785 F.2d 956 (11th Cir. 1986) .................................................. 24, 29

Wet Seal, Inc. v. FD Mgmt., Inc., 82 U.S.P.Q.2d 1629, 2007 WL 458529 (T.T.A.B. 2007) ............................................. 22, 23

FEDERAL STATUTES:

Trademark Law Revision Act of 1988, Pub. L. No. 100-667, 102 Stat. 3935 (1988) ............................... 5, 18

15 U.S.C. § 1051(b) ................................................................................ 2, 7

15 U.S.C. § 1051(b)(1) ...................................................................... passim

15 U.S.C. § 1051(d) .................................................................................... 9

15 U.S.C. § 1051(d)(1)........................................................................ 2, 7, 8

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15 U.S.C. § 1051(d)(2)............................................................ 2, 7, 8, 12, 14

15 U.S.C. § 1052(e)(1) .............................................................................. 31

FEDERAL REGULATIONS:

37 C.F.R. § 2.89(d) ................................................................. 2, 7, 9, 12, 14

OTHER AUTHORITIES:

H.R. Rep. No. 100-1028 (1988) .................................................................. 6

S. Rep. No. 100-515 (1988) ........................................................ 2, 6, 13, 18

Sandra Edelman, Proving Your Bona Fides—Establishing Bona Fide Intent to Use Under the U.S. Trademark (Lanham) Act, 99 Trademark Rep. 763 (2009) ...................................................... 21

Webster’s Ninth New Collegiate Dictionary (1987) ................................. 26

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REPLY ARGUMENT In trying to defend the decision below, Swatch all but ignores the

minimal standard that governs the earliest stage of the intent-to-use

trademark application process. Without ever taking on that standard,

Swatch argues that M.Z. Berger was required to submit exhaustive

documentary evidence in support of its intent-to-use application for the

iWatch mark, and it also argues that the Board made a finding of bad

faith. Swatch is mistaken. M.Z. Berger provided sufficient and

persuasive evidence to survive the earliest stage of the intent-to-use

process, and the Board made no finding of bad faith.

As an alternative ground for affirmance, Swatch claims that there

is a likelihood of confusion between the iWatch and Swatch marks, but

its aggressive claim that others cannot use the generic term “watch” has

been repeatedly rejected by the courts. Perhaps for this reason, Swatch

argues for the first time on appeal that the iWatch mark is confusingly

similar to the iSwatch and eSwatch marks, but it waived this

argument, and it nowhere acknowledges that M.Z. Berger applied for

the iWatch mark before Swatch ever applied for iSwatch or eSwatch.

The ultimate decision of the Board, sustaining the notice of

opposition, should be reversed.

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I. M.Z. Berger Satisfied the Standard that Governs the Earliest Stage of the Intent-to-Use Process.

As M.Z. Berger explained in its principal brief (and Swatch does

not dispute), this case presents a matter of first impression for this

Court regarding the proper standard to apply at the earliest stage of an

intent-to-use application filed under 15 U.S.C. § 1051(b)(1). That

subsection simply requires an applicant to make a verified statement

that she has a “‘bona fide intention to use the mark in commerce’ at a

later date.” Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357-58

(Fed. Cir. 2009) (quoting 15 U.S.C. § 1051(b)). It is only later in the

process, following the conclusion of an opposition proceeding such as

this one, that an applicant is required to show efforts to promote,

develop, market, or use a product bearing the trademark at issue. M.Z.

Berger Br. 38-41 (citing 15 U.S.C. § 1051(d)(1), (2); 37 C.F.R. § 2.89(d)).

Congress added the intent-to-use process to allow an applicant to

obtain priority in a trademark before “making a sizable investment in

packaging, advertising and marketing.” S. Rep. No. 100-515, at 5

(1988). The decision of the Board is contrary to that process.

Although this Court has not yet opined on the substantive

standard that governs the earliest stage of an intent-to-use application,

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it has established the standard of review that governs a decision of the

Board holding that an applicant “failed to meet the ‘use in commerce’

element of the Lanham Act.” Aycock, 560 F.3d at 1353. In evaluating

this element, the Court reviews the Board’s “legal conclusions de novo.”

Id. at 1355. Factual findings, in contrast, are “reviewed for substantial

evidence.” Id. Such a distinction makes sense. The Board’s

“interpretations of the Lanham Act and the legal tests it applies in

measuring registrability” are inherently questions of law that this

Court has “reviewed de novo.” In re Save Venice N.Y., Inc., 259 F.3d

1346, 1351-52 (Fed. Cir. 2001).

Drawing on abandonment cases, Swatch argues that this Court

should treat the Board’s ultimate conclusion—that M.Z. Berger “lacked

a bona fide intent to use a trademark”—as a question of fact that is

reviewed for substantial evidence. Swatch Br. 15. But this argument

fails for at least three reasons. First, it is too simplistic to label this

inquiry a question of fact. Whether a party has satisfied the standard

under Section 1051(b)(1) is more aptly described as a mixed question of

fact and law, because it involves both “a determination of historical

facts” and an analysis of “whether the facts satisfy the relevant

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statutory . . . standard.” Ornelas v. United States, 517 U.S. 690, 696

(1996) (brackets omitted). Second, this Court has emphasized that,

unlike the issue of abandonment, questions of registrability are mixed

questions that ultimately warrant de novo review. For example, this

Court has held that “[w]hether a likelihood of confusion exists”—a

question of registrability—“is a question of law, based on underlying

factual determinations.” On-Line Careline, Inc. v. Am. Online, Inc., 229

F.3d 1080, 1084 (Fed. Cir. 2000). Deference is given to those underlying

factual determinations, but review of the ultimate question is plenary.

Id. Third, the Supreme Court has explained that where, as here, the

“relevant legal principle can be given meaning only through its

application to the particular circumstances of a case, the Court has been

reluctant to give the trier of fact’s conclusions presumptive force and, in

so doing, strip a federal appellate court of its primary function as an

expositor of law.” Miller v. Fenton, 474 U.S. 104, 114 (1985).

Here, M.Z. Berger challenges the legal standards that the Board

applied in determining whether the company had satisfied the standard

under Section 1051(b)(1); it does not need to take on the Board’s

underlying factual findings. That is, even with deference accorded to

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the Board’s factual findings, its ultimate conclusion is contrary to the

process established by Congress—a process that was meant to lower the

initial barrier to obtaining priority while establishing subsequent

safeguards to prevent parties from reserving marks without any intent

to use them in commerce. The portion of the Board’s decision

misapplying the intent-to-use standard should be reversed.

A. The Standard Enacted By Congress Only Requires a Bona Fide Intent to Use the Mark at a Later Date, Not Actual Promotion, Development, or Marketing Efforts.

Swatch barely acknowledges the revised intent-to-use process that

Congress ushered in with the passage of the Trademark Law Revision

Act of 1988. Swatch Br. 17-18. It concedes, as it must, that Congress

“allowed a party, for the first time, to file an application based not on

actual use in commerce, but on a bona fide intent to use.” Id. at 17.

But Swatch only hints at the purposes behind this revised process, id.

(discussing only the concept of “token use”), and it nowhere discusses

how the revised process was structured to achieve these purposes, see

generally id. Those purposes and structure are critical to

understanding why the Board erred in this case.

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As M.Z. Berger explained in its principal brief, Congress added

the intent-to-use process in order to correct perceived deficiencies in the

then-existing trademark registration process. M.Z. Berger Br. 16-17,

24-28. Under the former process, an applicant had to “first make use of

the mark in interstate commerce before . . . apply[ing] for registration.”

S. Rep. No. 100-515, at 5. This created at least two problems. First, it

required applicants to make “a significant financial investment in the

goods or services” before learning whether the mark was registrable.

H.R. Rep. No. 100-1028, at 8 (1988). And because the marketing of a

new product can be expensive, the use-only process “frequently

disadvantag[ed] small companies and individuals.” S. Rep. No. 100-515,

at 5. Second, sophisticated applicants with no intent to use a mark

could evade the former process simply by selling a small number of

goods—a so-called “token use.” Id. at 6. Congress found the token use

practice troubling for two reasons: (1) it further disadvantaged “small

business[es] and individuals” because “they frequently lack[ed] the

resources or the knowledge to engage in the practice,” and (2) it allowed

applicants to obtain registrations even if they “subsequently [did] not

make commercial use” of the mark. Id. To rectify these problems,

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Congress allowed an applicant to obtain priority by filing a verified

statement of a “‘bona fide intention to use the mark in commerce’ at a

later date.” Aycock Eng’g, 560 F.3d at 1357-58 (quoting 15 U.S.C.

§ 1051(b)).

Contrary to Swatch’s contention, it is not “only through inter

partes proceedings, like this one, that . . . abuses of the intent[-]to[-]use

system can be policed and remedied.” Swatch Br. 12-13. Just the

opposite. Congress established an administrative review process that

occurs six months to three years after a notice of opposition proceeding

has concluded. 15 U.S.C. § 1051(d)(1), (2); M.Z. Berger Br. 1-2, 37-41.

It is only at this later stage of the process that an applicant is first

required to verify actual use, 15 U.S.C. § 1051(d)(1), or to show “good

cause” for an extension, id. § 1051(d)(2)—that is, concrete steps to

“develop[],” “market,” “promot[e],” or “manufactur[e]” the product, 37

C.F.R. § 2.89(d). Thus, as this Court previously recognized, “Congress

knew that some issues of registrability could not be decided in

opposition proceedings and would therefore have to be addressed in the

post-use PTO examination or challenged in a cancellation proceeding

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after the mark was registered.” Eastman Kodak Co. v. Bell & Howell

Doc. Mgmt. Prods. Co., 994 F.2d 1569, 1572 (Fed. Cir. 1993).

To be sure, the Board has interpreted Section 1051(b)(1) “to

require both actual intent to use a mark in commerce and evidence,

contemporary with the application, that objectively demonstrate[s] such

an intent.” Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc.,

525 F.3d 8, 21 (D.C. Cir. 2008) (citing Board authorities). But the

quantum of evidence that the Board requires must be commensurate

with the overarching structure and purpose of the intent-to-use

process—a process that does not require concrete steps to develop,

promote, market, or manufacture a product until at least a year after

an opposition proceeding has concluded. 15 U.S.C. § 1051(d)(1), (2)

(allowing six months and one automatic extension of an additional six

months before requiring proof of use or a showing of good cause).

Sustaining a notice of opposition based on a complete absence of

objective evidence of bona fide intent is one thing. See, e.g., Spirits Int’l,

B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri

Birligi, 99 U.S.P.Q.2d 1545, 2011 WL 2909909, at *4 (T.T.A.B. July 6,

2011) (non-precedential) (finding a lack of bona fide intent, during an

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opposition proceeding, where the “applicant submitted no evidence

whatsoever”). But it is quite another thing to sustain an opposition

based on a demand—such as the one the Board made here—for

evidence of “promotional” material or “effort[s] to develop and market” a

product. J.A. 24, 32. The former situation is consistent with the

statutory design; the latter is not.

B. M.Z. Berger Proffered Numerous Pieces of Objective Evidence Demonstrating Its Bona Fide Intent to Use the iWatch Mark at a Later Date.

M.Z. Berger satisfied the minimal standard under Section

1051(b)(1). It proffered objective evidence, both documentary and

testimonial, demonstrating its bona fide intent to use the iWatch mark

at a later date. That is all that is required at this stage of the process.

Cf. 15 U.S.C. § 1051(d); 37 C.F.R. § 2.89(d).

M.Z. Berger applied for the iWatch mark for a narrow set of

products—watches, clocks, and related goods. J.A. 41. There was

uncontested documentary and testimonial evidence that, at the time

that M.Z. Berger applied for the mark, it was a “watch” and “clock”

company with more than half a century of experience in the business.

E.g., J.A. 939, 1759, 1850-51; see J.A. 10. There also was uncontested

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documentary evidence that M.Z. Berger employs over 700 men and

women (mostly in manufacturing), has offices in New York, Hong Kong,

China, and Canada, and sells roughly 20 million timepieces a year. J.A.

938-39; see also J.A. 10. Finally, there was uncontested documentary

and testimonial evidence that M.Z. Berger is not simply a reseller of

watches and clocks; it also develops, designs, and then sells its own line

of proprietary brands. E.g., J.A. 938, 940-41, 1759-61, 1852. Indeed,

the company submitted uncontested documentary evidence that it has

brought numerous trademarked watches to market, both in the years

preceding the iWatch application (J.A. 1233-34) and in the years that

followed (J.A. 1224-25, 1227-28, 1230-31). (The Board completely

ignored M.Z. Berger’s evidence that it had brought trademarked

watches to market before it applied for the iWatch mark. J.A. 30-31.)

In addition, M.Z. Berger submitted testimonial evidence that, at

the time that the company’s CEO, Bernard Mermelstein, “came up with

the” idea for the iWatch name, he thought it would be a good name for a

brand “if [the company] decided to do [an] information watch or

something that would have that type of characteristic.” J.A. 845. Soon

thereafter, the company held an initial meeting to discuss the iWatch

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name and potential product features. E.g., J.A. 1765-67, 1860-62, 1887.

At the end of this meeting, the company had reached a firm decision:

“[W]e all decided, after we left that meeting, that [the iWatch name]

was something we were going to pursue.” J.A. 1766.1

The company held several more meetings about iWatch, including

several meetings within the merchandising department. J.A. 1767.

During these meetings, the company discussed “what the logo should

and could look like” (J.A. 1767), potential accounts and vendors (J.A.

1768), a target price (J.A. 1769, 1814, 1862), and potential colors (J.A.

1825). Also during these meetings, the company decided that the logo

would have a “small I” and a “capital W.” J.A. 2044; see J.A. 761, 763

(depictions of iWatch logos).2

1 Swatch claims that Mr. Mermelstein admitted that he never had a firm intent to use iWatch at the time that M.Z. Berger applied for the mark, suggesting that, at that time, he simply thought it was a good mark “‘if we decided to do a . . . technology . . . or information watch.’” Swatch Br. 2 (quoting J.A. 845) (emphasis added by Swatch). But in reality, Mr. Mermelstein was responding to a question about what he thought at the time he “came up with” the idea for the mark, not when the company applied for it. J.A. 845 (emphasis added). 2 Swatch attempts to discredit these meetings, claiming that there is “no evidence in the record that such meetings were contemporaneous with the filing of the application.” Swatch Br. 38. But that is simply not true. It is apparent that these meetings occurred before M.Z. Berger filed its application. E.g., J.A. 1766 (testifying that, following one of

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Following these meetings, the company prepared a trademark

application for “iWatch,” J.A. 40—one that included the small I and

capital W previously discussed, J.A. 45. Before filing that application,

however, the company conducted a trademark search to determine

whether the mark was available, J.A. 19, 1251, 1966-67, 1987-2003—

more uncontested, objective, documentary evidence of the company’s

bona fide intent to use the mark at a later date.

In addition, there was uncontested documentary and testimonial

evidence that, not long after filing its trademark application, the

company prepared renderings of a watch and clock bearing the “iWatch”

mark. J.A. 65, 227-28, 757-58. There was some potentially conflicting

testimony about whether these renderings were shown to a prospective

buyer. Compare J.A. 855-56, 867-68 (Mermelstein), with J.A. 2033

(Titera); see also J.A. 1783 (Russo). But there is no requirement that

M.Z. Berger had to show a potential buyer any product at this stage of

the intent-to-use process. Cf. 15 U.S.C. § 1051(d)(2); 37 C.F.R. § 2.89(d).

There also was some potentially conflicting testimony about whether

these meetings, everyone in attendance agreed that M.Z. Berger should “pursue” the application); J.A. 45 (deciding on the “small I” and “capital W” that would form the basis of the company’s application).

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the company produced a prototype of the watch. Compare J.A. 1819

(Russo), with J.A. 857 (Mermelstein); see also J.A. 1891 (Gordon). But

again, there is no requirement that M.Z. Berger had to make that sort

of investment—upwards of “$15,000,” J.A. 1864-65 (Gordon)—before

learning whether the mark was registrable, S. Rep. No. 100-515, at 23.

Lastly, there was testimonial evidence that an M.Z. Berger

employee discussed the iWatch brand with at least one potential buyer.

J.A. 1779. To be sure, the Board perceived some level of inconsistency

about the details of this conversation. J.A. 29-30 (comparing an e-mail

by Ms. Titera (J.A. 2033) with Ms. Russo’s testimony (J.A. 1825-26)).

But the company representative who met with the prospective buyer

had no doubt that the meeting took place. J.A. 1783; see also J.A. 1810

(responding that she was “100 percent sure” she met with a woman and

discussed the mark with her).3

3 In reality, the two pieces of evidence are not in conflict. Ms. Titera wrote in an e-mail to Mr. Mermelstein that a specific potential buyer thought that a watch with interactive features would be too expensive, and as a result, the company decided not to move forward on a watch with interactive features. J.A. 2033. Ms. Russo, in contrast, was asked what caused the company to suspend efforts to develop the iWatch brand, J.A. 1825; she testified that it was because of Swatch’s notice of opposition, not because “buyers thought the watch would be too expensive.” J.A. 1826.

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As the opponent, Swatch at all times bore the burden of proving,

by a preponderance of the evidence, that M.Z. Berger did not have any

bona fide intent, e.g., Intel Corp. v. Emeny, No. 91123312, 2007 WL

1520948, at *4 (T.T.A.B. May 15, 2007) (non-precedential), and Swatch

bore this burden at a stage in the process when M.Z. Berger is under no

obligation to take steps to develop, promote, market, or use the product

in question, cf. 15 U.S.C. § 1051(d)(2); 37 C.F.R. § 2.89(d). The fact that

Swatch bears such a high burden at this stage is fully consistent with

congressional intent. Eastman Kodak, 994 F.2d at 1572 (explaining

that “Congress knew that some issues of registrability could not be

decided in opposition proceedings”); see also id. at 1575 n.8 (noting

Congress was aware that this process could delay the adjudication of

certain issues of registrability for “a period of months or years” but this

was the balance “intended by Congress”).

Judged under the proper standard, Swatch failed to meet its

burden. The evidence, viewed as a whole, shows that M.Z. Berger had

the past experience, the capacity, the motivation, the wherewithal, and

the appropriate level of follow-through to use the iWatch mark in

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commerce at a later date, and it provided more than sufficient, objective

evidence of its bona fide intent to overcome Swatch’s opposition.

C. Contrary to Swatch’s Argument, The Board Made No Finding of Bad Faith.

In its response brief, Swatch argues that the Board made a finding

of bad faith on the part of M.Z. Berger, Swatch Br. 46-47, but the Board

did no such thing, see J.A. 1-33. Granted, the Board discounted some of

M.Z. Berger’s testimonial evidence, highlighting the perceived

inconsistencies discussed above. E.g., J.A. 23 (noting that the witnesses

“disagree[d]” about what the renderings represented); J.A. 28-29

(claiming a discrepancy between Ms. Titera’s e-mail and Ms. Russo’s

testimony); but see supra note 3 (noting that these two pieces of

evidence are not contradictory). Even then, discussing potential

inconsistencies is a far cry from a finding of bad faith. And the Board

made no such finding here.

According to Swatch, perhaps the most persuasive evidence of bad

faith is M.Z. Berger’s trademark application, Swatch Br. 8-9, 32, 46,

which was directed at watches, clocks, and a list of related goods, J.A.

41. But, for a company with a fifty-plus-year history in the watch and

clock business, J.A. 939, 1759, 1850-51, a list of watches, clocks, and

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related goods is a far cry from the types of applications, involving

“hundreds of items,” that the Board has previously found “unreasonably

broad,” Intel Corp., 2007 WL 1520948, at *5-6. Moreover, the Board has

previously rejected an opposition on the ground that the applicant

lacked a bona fide intent to develop every product claimed in an

application, even though that application purported to cover “730

goods.” Collagenex Pharms., Inc. v. Four Star Partners, No. 91150890,

2003 WL 22273118, at *6 (T.T.A.B. Sept. 24, 2003) (non-precedential).

Claiming watches, clocks, and a list of closely related goods falls far

short of bad faith, and the Board therefore, quite appropriately, made

no such finding.

In reality, the limited instances of inconsistent testimony

identified by the Board are consistent with fading memories, not bad

faith or fraud. See supra at 12-13. For example, the company’s CEO

repeatedly used qualifiers when he could not recall the answer to a

question. J.A. 855-56. Mere disagreements and uncertainties fall far

short of the type of evidence that has been said to support a finding of

bad faith. By way of example, in Aktieselskabet, the D.C. Circuit held

that the plaintiff-opposer had alleged facts sufficient to support a claim

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of bad faith where the plaintiff alleged: (1) that it had been using the

applied-for mark in foreign commerce; (2) that the defendant-applicant,

a competitor, applied for the mark shortly after it learned that the

plaintiff planned to use the mark in the United States; and (3) that the

applicant applied for the mark solely to block the plaintiff from using

the mark. 525 F.3d at 22. Swatch has pointed to nothing in the record

that approaches such conduct. Perhaps for this reason, Swatch

abandoned its fraud claim at the close of discovery. See J.A. 2 n.3; see

also M.Z. Berger Br. 12.

D. Contrary to Swatch’s Argument, M.Z. Berger Is Not Limited to Documentary Evidence to Support Its Application.

Lastly, Swatch suggests that M.Z. Berger is limited to

documentary evidence to prove its bona fide intent, Swatch Br. 19, and

that all testimonial evidence is inherently “subjective,” id. at 38. But

these arguments derive no support from the law.

1. The Statute Nowhere Requires Documentary Evidence.

To begin with, the statute nowhere requires documentary

evidence at the earliest stage of the intent-to-use process. 15 U.S.C.

§ 1051(b)(1). As noted above, the Board has interpreted Section

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1051(b)(1) “to require both actual intent to use a mark in commerce and

evidence, contemporary with the application, that objectively

demonstrate[s] such an intent.” Aktieselskabet, 525 F.3d at 21. But the

Board has recognized that “neither the statute nor the legislative

history of the [Trademark Law Revision Act] specifies the particular

type or quantum of objective evidence that an applicant must produce to

corroborate or defend its claimed bona fide intention to use the mark in

commerce.” Lane Ltd. v. Jackson Int’l Trading Co., 33 U.S.P.Q.2d 1351,

1994 WL 740491, at *6 (T.T.A.B. 1994) (emphasis added).

2. Swatch’s Insistence on Documentary Evidence Is Contrary to Congressional Intent.

In addition, Swatch’s insistence on documentary evidence is

contrary to congressional intent. As noted above, when Congress

passed the Trademark Law Revision Act, it sought to lower the

financial barriers embodied in the prior, use-only process. And

Congress was particularly concerned about the burdens on “small

companies and individuals.” S. Rep. No. 100-515, at 5.

To Swatch (a wholly-owned subsidiary of The Swatch Group Ltd.,

a large, publicly-held, multinational company), it may seem foreign that

a single merchandising officer must attend hundreds of meetings a year

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and does not have time to keep detailed notes, J.A. 1790-91, 1816, or

that a small group of employees would engage in what Swatch perceives

to be an informal process to develop a product line, see Swatch Br. 38.

But for a relatively small, “privately held, family owned business” like

M.Z. Berger, J.A. 939, this is an economic reality. Forcing family-owned

businesses to employ sufficient personnel and expend money on the

infrastructure necessary to maintain extensive records is not consistent

with congressional intent—particularly at the earliest stage of the

intent-to-use process. All that is required is a genuine and firm intent

that is reasonably verifiable.

3. The Board Has Never Previously Insisted on Documentary Evidence.

Swatch also suggests that the Board has required documentary

evidence to defend against a claim of a lack of bona fide intent, Swatch

Br. 19, and has held that testimonial evidence is inherently

“subjective,” id. at 38, 42. But that is not the case.

The Board has made clear that, at all times, “the burden of

persuasion by a preponderance of the evidence remains with the party

asserting a lack of a bona fide intention to use.” Intel Corp., 2007 WL

1520948, at *4. “The absence of any documentary evidence on the part

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of an applicant regarding such intent constitutes objective proof

sufficient to prove that the applicant lacks a bona fide intention to use

its mark in commerce.” Boston Red Sox Baseball Club Ltd. P’ship v.

Sherman, 88 U.S.P.Q.2d 1581, 2008 WL 4149008, at *6 (T.T.A.B. 2008).

But even if the party asserting a lack of bona fide intent satisfies its

initial burden by showing a complete “absence of any documentary

evidence,” the applicant is still afforded the opportunity to “come

forward with evidence which would adequately explain or outweigh [its]

failure to provide such documentary evidence.” Id. Thus, contrary to

Swatch’s suggestion, the Board has never held that an applicant is

required to come forward with documentary evidence to defend against

a claim of a lack of bona fide intent. And, in any event, M.Z. Berger

proffered numerous pieces of documentary evidence. See supra at 9-13.

Nor, for that matter, has the Board held that testimonial evidence

is inherently “subjective.” As the Board explained, some testimonial

evidence is subjective: “Congress did not intend the issue to be resolved

simply by an officer of applicant later testifying, ‘Yes indeed, at the time

we filed that application, I did truly intend to use the mark at some

time in the future.’” J.A. 17. But some testimonial evidence—for

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example, testimony about meetings where the applicant discussed uses

for the mark, the appearance of the logo, potential accounts and

vendors, a target price, and potential colors (supra at 10-12)—does

constitute objective evidence supporting a claim of bona fide intent.

Indeed, it would be an empty promise if an applicant could not use

testimonial evidence to rebut the absence of documentary evidence. See

Boston Red Sox, 2008 WL 4149008, at *6.

4. What Distinguishes this Case From Past Cases Is the Board’s Erroneous Insistence on Evidence of Promotion, Development, and Marketing Efforts.

In the past, the Board has made it difficult on opposers—such as

Swatch—to prove a lack of bona fide intent at the opposition stage.

Thus, in summarizing the opposer’s burden, one commentator

explained: “The burden of proof is not easy to satisfy, particularly

where an opposer makes its argument based on the absence of evidence

or relies on deposition testimony that is not necessarily crystal clear.”

Sandra Edelman, Proving Your Bona Fides—Establishing Bona Fide

Intent to Use Under the U.S. Trademark (Lanham) Act, 99 Trademark

Rep. 763, 774 (2009).

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In Wet Seal, Inc. v. FD Management, Inc., for example, the

opponent pointed to the “ambiguous” responses of a witness for the

applicant, along with a dearth of documentary evidence as proof that

the applicant did not intend to develop a shampoo product. 82

U.S.P.Q.2d 1629, 2007 WL 458529, at *13-14 (T.T.A.B. 2007). The

Board rejected this claim: “Merely because applicant may not have

taken steps to actually launch or introduce a particular product does

not mean that applicant otherwise had no intention to develop or

market the product.” Id. at *14. And the Board pointed to the

applicant’s history of producing similar products “in the past under

different marks, which would tend to affirmatively rebut any claim by

opposer regarding applicant’s intent.” Id.

In another case, Imedica Corp. v. Medica Health Plans, the

opposer claimed a lack of bona fide intent based on the applicant’s

failure to “generate an advertising plan, product literature, pamphlets,

and brochures.” No. 91159617, 2007 WL 1697344, at *16 (T.T.A.B.

June 7, 2007) (non-precedential). In rejecting this claim, the Board

explained that there is a difference between having “no plans to use the

mark” and having no “current plans to use the mark.” Id. In addition,

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the Board accepted as reasonable the applicant’s explanation that it

had placed “plans to use the mark aside until the conflict between the

parties is resolved.” Id.

What separates those cases from this one is the Board’s insistence

that M.Z. Berger produce evidence of “promotional” material or

“effort[s] to develop and market” a product. J.A. 24, 32. Swatch

attempts to minimize the impact of these statements, claiming that the

Board was simply describing what M.Z. Berger’s evidence was not. See

Swatch Br. 44. But that is the flipside of the same coin. If M.Z. Berger

had provided evidence of actual efforts to “promot[e],” “develop and

market” an iWatch product, then the Board would not have sustained

Swatch’s notice of opposition. See J.A. 24, 32.

In the end, it is impossible to square the Board’s insistence on

such evidence with its decisions in such cases as Wet Seal and Imedica

Corp. M.Z. Berger provided documentary and testimonial evidence that

it had been in the watch and clock business for more than fifty years,

that it had developed and brought other trademarked watches to

market, that it held numerous product development meetings where it

discussed the iWatch mark, that it conducted a trademark search, that

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it produced renderings of potential products and logos, that it discussed

the mark with at least one buyer, and that it suspended development

efforts only after the notice of opposition was filed. The portion of the

Board’s decision misapplying the intent-to-use standard should be

reversed.

II. The Board Correctly Found That There Is No Likelihood of Confusion Between the “iWatch” and “Swatch” Marks.

In its trial brief, Swatch trumpeted that it has diligently policed

its “Swatch” mark by “institut[ing] thirty Opposition and Cancellation

proceedings” in the past six years alone. J.A. 1730. But this litigation

strategy has not been well received in the courts of appeals. See Swatch

AG v. Beehive Wholesale, LLC, 739 F.3d 150, 159 n.12 (4th Cir. 2014)

(holding that “watch” in “Swatch” is a generic term not entitled to

trademark protection); Swatch Watch, SA v. Taxor, Inc., 785 F.2d 956,

957 (11th Cir. 1986) (holding there is no likelihood of confusion between

“SWATCH” and “T-WATCH” marks).

The Board was therefore not the first tribunal to reject Swatch’s

aggressive strategy to prohibit competitors from using the word “watch”

in their trademarks. To that end, the Board properly held that the

shared word, “watch,” in the “Swatch” and “iWatch” marks is a generic

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and descriptive term that warrants little or no trademark protection.

J.A. 13-14.

Having discounted the significance of “watch,” the Board

reasonably found that the sound, appearance, and meaning of the two

marks were dramatically different. J.A. 14-15. In light of these

substantial differences, the Board correctly found that the fame of the

“Swatch” mark, and the fact that the “Swatch” mark shared the same

channels of trade as the “iWatch” mark, were insufficient bases for

finding a likelihood of confusion.

Finally, Swatch never argued below that its “iSwatch” and

“eSwatch” marks are relevant to the question of whether “iWatch” is

confusingly similar to “Swatch.” And even if it had, “iWatch” has

priority over those two marks by virtue of its earlier filing date.

A. “Watch” Is A Generic and Descriptive Term that Carries Little or No Significance In Evaluating Likelihood of Confusion.

Swatch challenges the Board’s finding that the term “watch,”

contained in the “Swatch” mark, is a generic and descriptive term

entitled to limited or no trademark protection. Swatch Br. 51-53. But

the Board’s finding comports with the law of this Court.

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This Court has explained that “[g]eneric terms describe a category

of products, and therefore cannot signal any particular source.”

Nautilus Group, Inc. v. ICON Health & Fitness, Inc., 372 F.3d 1330,

1341 (Fed. Cir. 2004). In slight distinction, descriptive terms “define

qualities or characteristics of a product in a straightforward way.” Id.

at 1340. Although the combination of generic and/or descriptive terms

may form distinctive phrases entitled to trademark protection, such

terms, standing alone, are given little or no weight in evaluating

whether two marks are confusingly similar. Id. at 1341.

The Board correctly concluded that “Swatch” contains the generic

and descriptive term “watch.” One of the leading definitions of “watch”

is “a portable timepiece that has movement driven in any of several

ways (as by a spring or a battery) and is designed to be worn (as on the

wrist) or carried in the pocket.” Webster’s Ninth New Collegiate

Dictionary 1331 (1987). The term is thus generic to the extent it

describes a category of products. The Board also found the term

descriptive—presumably because it may describe the basic size and

characteristics of a timepiece. Under the circumstances, the Board

properly concluded that the term “watch” contained in both the

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“iWatch” and “Swatch” marks is a generic and descriptive term that has

“little or no significance” in a likelihood-of-confusion analysis. J.A. 13;

see also Swatch AG, 739 F.3d at 159 n.12 (similar).

Despite the unquestionably generic and descriptive nature of the

term “watch” contained in the “Swatch” and “iWatch” marks, Swatch

raises a number of arguments in an attempt to make an end-run around

the settled law of this and other courts of appeals. In short, Swatch

would have this Court believe that the selection and ordering of the

letters “W-A-T-C-H” in the “Swatch” mark is mere happenstance and

that the “Swatch” mark should, therefore, be viewed as a unitary, non-

generic term. Swatch Br. 51-53. To that end, Swatch contends that no

evidence supports the Board’s finding that consumers will distinguish

the term “watch” from the “Swatch” mark. But these arguments fail for

a number of reasons.

First, Swatch had the burden of proving likelihood of confusion,

Cunningham v. Laser Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000);

yet, Swatch points to no consumer surveys or other evidence showing

that consumers do not distinguish “watch” from the “Swatch” mark, or

“Swatch” from the “iWatch” mark, for that matter. Moreover, the Board

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did not need evidence to arrive at this reasonable conclusion. This

Court has recognized that “experience tells us that we and other

consumers distinguish between [the descriptive and] the non-

descriptive portion” of trademarks. In re Nat’l Data Corp., 753 F.2d

1056, 1060 (Fed. Cir. 1985). The same logic applies here. The Board

properly applied its experience to conclude that consumers will

distinguish the generic and descriptive term “watch” from the “Swatch”

and “iWatch” marks.

Second, Swatch argues for the first time on appeal that the

“Swatch” mark has taken on a “secondary meaning,” such that

“consumers do not view the mark (or portions of the mark) under its

ordinary meaning.” Swatch Br. 52. Swatch failed to raise this

argument below, and it is therefore waived. In re Chamber of

Commerce, 675 F.3d 1297, 1298 n.1 (Fed Cir. 2012). Yet, even if Swatch

had raised this argument below, it has no merit. Although “Swatch”

arguably is a unique word that can take on any number of fanciful

meanings in the minds of consumers and is therefore “capable of

receiving trademark protection,” a generic term, like “watch,” is not.

Nautilus Group, 372 F.3d at 1341.

- 29 -

Swatch’s argument boils down to the proposition that the generic

and descriptive term “watch” is so closely associated with the “Swatch”

mark that no other manufacturer or seller of watches can use a

trademark with the letters W-A-T-C-H in the “lucrative ‘alphabetical

watch’ market.” Swatch Watch, 785 F.2d at 957. Accepting Swatch’s

line of argument would effectively grant Swatch a monopoly over the

term “watch” when used in connection with timepieces. This Court has

diligently guarded against such an outcome based on a legitimate

concern that it would prohibit competitors from “‘describ[ing] [their]

goods as what they are.’” Nautilus Group, 372 F.3d at 1341. The Court

should adhere to its precedent and reject Swatch’s attempt to

monopolize the generic and descriptive term “watch.”

B. The Board Correctly Weighed the Factors in Finding No Likelihood of Confusion.

Having properly determined that the term “watch” should be

afforded little or no weight in the likelihood-of-confusion analysis, the

Board reasonably concluded that the sound, meaning, and overall

commercial impression of the “iWatch” mark were sufficiently different

from the “Swatch” mark, such that no likelihood of confusion exists.

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As the Board recognized, “Swatch” and “iWatch” are phonetically

dissimilar. “Swatch” is monosyllabic, beginning with a sibilant

consonant, while “iWatch” is a “two-syllable telescoping of the terms ‘I’

and ‘WATCH’ beginning with the long ‘I’ vowel sound.” J.A. 14. Indeed,

Swatch’s insistence that the “Swatch” mark should be viewed as a

unitary term (Swatch Br. 51-53) only reinforces the phonetic differences

between the monosyllabic “Swatch” and the hyphenated pronunciation

of “iWatch.”

Furthermore, while acknowledging there is “some visual

similarity” between the “Swatch” and “iWatch” marks, the Board found

that the “S” and “i” were “readily distinguishable in both appearance

and in meaning.” J.A. 14-15. To that end, the Board correctly noted

that the various consumer interpretations that may attach to the “i” of

the “iWatch” mark—including a “reference to ‘interactive’; a personal

pronoun; or a double entendre playing on the verb form of the term

‘watch’” (J.A. 15)—were distinct from any of the connotations associated

with the “Swatch” mark.

Swatch attempts to undermine this finding by arguing that the

Board improperly ascribed a meaning to the “i” of the “iWatch” mark

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when M.Z. Berger had taken the position with the PTO that the

meaning of its mark was purely arbitrary. Swatch Br. 54. Swatch,

however, exaggerates the significance of M.Z. Berger’s statement. After

M.Z. Berger submitted its application for the “iWatch” mark, the PTO

examining attorney initially refused registration based on concerns that

“iWatch” was descriptive under 15 U.S.C. § 1052(e)(1). J.A. 72. M.Z.

Berger responded to the PTO, explaining that “[t]he ‘i’ does not refer to

any particular feature of the watches or clocks” and that “there will be

no interactive features on any models.” J.A. 75. The Company,

however, never stated that the “iWatch” mark could not lend itself to

various consumer interpretations. To that end, the various meanings

that consumers may ultimately ascribe to the “i” of the “iWatch” mark—

whether related to pronouns, entendres, or technology—are distinct

from the question of whether the “iWatch” mark is impermissibly

descriptive under Section 1052(e)(1). In any event, Swatch only argues

that the “i” of “iWatch” must be devoid of meaning; it never argues that

the “S” of “Swatch” and the “i” of “iWatch” have similar connotations.

Thus, there can be no basis for finding that the two marks have

confusingly similar meanings, aside from the fact that they share the

- 32 -

generic and descriptive term “watch.” And as discussed above, this is

an insufficient ground upon which to find the two marks confusingly

similar.

Swatch also contends that the Board improperly “discounted” the

fame of the “Swatch” mark and the fact that the “Swatch” and “iWatch”

marks compete in the same channels of trade. Swatch Br. 49-50. But

the Board did no such thing; it recognized that the goods were in the

same channels of trade (J.A. 12) and was “mindful that fame, where it

exists, plays a dominant role in the likelihood[-]of[-]confusion analysis”

(J.A. 14). Nevertheless, fame and similarity in the channels of trade

are not dispositive factors. To the contrary, depending on the facts,

other factors “may play dominant roles in determining likelihood of

confusion.” Kenner Parker Toys, Inc. v. Rose Art Indus., Inc., 963 F.2d

350, 352 (Fed. Cir. 1992). Here, the Board properly concluded that

dramatic differences in sound, meaning, appearance, and overall

commerce impression outweighed any significance that can be ascribed

to the fame of the “Swatch” mark and the similarity in the channels of

trade.

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In the end, Swatch’s argument is little more than a naked

assertion that the fame of its mark should entitle it to a monopoly in

the watch industry over the use of the generic and descriptive term

“watch,” no matter the difference in sound, appearance, and meaning of

competing marks, and without submitting any evidence of consumer

confusion. The Board properly rejected this argument.

C. Swatch Waived Its Argument Regarding “iSwatch” and “eSwatch” and Cannot Claim Likelihood of Confusion Based on These Marks.

Swatch claims that the Board erred by failing to give

consideration to its “iSwatch” and “eSwatch” marks. Swatch Br. 56-57.

The Board, however, correctly noted that Swatch made no arguments in

its trial briefing concerning the “iSwatch” and “eSwatch” marks. J.A. 7

n.18. Swatch merely cited these marks in its notice of reliance (J.A.

681) and vaguely referenced their registration numbers in an

introductory section of its trial brief, entitled “Description of the Record”

(J.A. 1695). Swatch never argued that these registrations were relevant

to the Board’s likelihood-of-confusion analysis. See J.A. 1717-32.

Swatch, therefore, waived these arguments. Chamber of Commerce,

675 F.3d at 1298 n.1.

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Regardless, even if Swatch had preserved its arguments

concerning the “iSwatch” and “eSwatch” marks, it still fails to explain

how these registrations are relevant to the question of whether

“Swatch” and “iWatch” are confusingly similar. Swatch’s claim for

likelihood of confusion in its Notice of Opposition was based solely on

the marks “SWATCH” and “SWATCH QUARTZ.” J.A. 92. Indeed,

Swatch concedes that “iSwatch” and “eSwatch” were never pleaded in

its Notice of Opposition. Swatch Br. 58.

Finally, Swatch cannot claim priority to the iSwatch and eSwatch

marks. M.Z. Berger filed its application for the “iWatch” mark on July

5, 2007. J.A. 40. Swatch waited until April 7, 2008, before filing

applications with the PTO for the “iSwatch” and “eSwatch” marks,

claiming priority for these marks based on earlier international

registrations only up to November 28, 2007. J.A. 714-15, 721-22. Given

the sequencing of these filings, Swatch cannot rely on “iSwatch” and

“eSwatch” marks to assert a likelihood of confusion claim against M.Z.

Berger for its earlier-filed “iWatch” mark. E.g., Aktieselskabet, 525 F.3d

at 18 (holding that an intent-to-use applicant, like M.Z. Berger, can

claim priority from the filing date of its application).

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CONCLUSION

This Court should (i) reverse that potion of the Board’s decision

holding that M.Z. Berger lacked a bona fide intent to use the iWatch

mark in commerce at a later date; (2) affirm that portion of the decision

finding no likelihood of confusion; and (3) remand with instructions that

the Patent and Trademark Office deny Swatch’s opposition and issue a

notice of allowance.

Dated: August 7, 2014 Samson Helfgott Jessica Garrett KATTEN MUCHIN ROSENMAN LLP 575 Madison Avenue New York, NY 10022 212-940-8800

Respectfully submitted, /s/ Howard R. Rubin x Howard R. Rubin Counsel of Record Robert T. Smith Daniel Lipton* KATTEN MUCHIN ROSENMAN LLP 2900 K Street, NW – Suite 200 Washington, DC 20007-5118 Tel: 202-625-3500

Counsel for Appellant M.Z. Berger & Co., Inc.

* Admitted to practice before the Federal Circuit; licensed to practice in New York only; supervised by Principals of the Firm who are members of the District of Columbia Bar consistent with D.C. Bar Rule 49(c)(8).

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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C)(i), I

hereby certify that this brief is proportionately spaced; uses a Roman-

style, serif typeface (Century Schoolbook) of 14-point; and contains

6,995 words, exclusive of the material not counted under Federal Rule

of Appellate Procedure 32(a)(7)(B)(iii).

/s/ Robert T. Smith x Robert T. Smith Counsel for Appellant

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Reply Brief

of Appellant with the Clerk of the Court for the United States Court of

Appeals for the Federal Circuit by using the appellate CM/ECF system

on August 7, 2014.

I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF

system.

/s/ Daniel Lipton x Daniel Lipton Counsel for Appellant