'THE THIRD EYE'. Sophia Stewart's epic story that was stolen and used to create two of Hollywoods largest franchises, THE MATRIX and THE TERMINATOR. Study the THIRD EYE along with additional information harking back to Courtroom paperwork, letters of entry, registered return receipts, FBI investigations and Stewart's future duties. Mother of the Matrix as she is affectionately known, wrote her Epic The Third Eye while she was studying cinema at the University of Southern California. This ingenuous work, copyrighted since 1981, is the foundation and contains the core elements of the blockbuster films: The Terminator and The Matrix.
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United States Patent and Trademark Office
THIS OPINION IS NOT A Trademark Trial and Appeal Board
PRECEDENT OF THE P.O. Box 1451
TTAB Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
CME Mailed: February 5, 2015
Cancellation No. 92058387
Sophia Stewart
v.
Warner Bros. Entertainment Inc.
Sophia Stewart Net Worth
Before Quinn, Mermelstein and Adlin,
Administrative Trademark Judges.
By the Board:
Pro se Petitioner seeks cancellation of Registration No. 3408950 for the
mark ENTER THE MATRIX, in typed format, for Motion picture films
featuring drama, action, adventure and animation, audio video discs, and
digital versatile discs featuring music, drama, action, adventure, and
animation; CD ROM games; all featuring fictional characters and elements
from the hit 1999 science fiction motion picture and its sequels, in which a
computer hacker learns the true nature of his reality and joins a group of
rebels in a war against oppressive controllers in a futuristic world.1 In her
amended petition for cancellation, Petitioner asserts claims of fraud and
references various other claims and statutory provisions.
1 Registered on April 8, 2008; based on a claim of first use of May 15, 2003.
Cancellation No. 92058387
In lieu of filing an answer, on April 17, 2014 Respondent filed a motion to
dismiss Petitioners amended petition for cancellation. On August 13, 2014,
after Respondents motion was fully briefed, the Board issued an order (the
Prior Order) noting that Respondents motion rests, in part, on the doctrine
of collateral estoppel based on the decisions of two federal district courts in
cases involving the same parties: (1) Stewart v. Wachowski, et al., 574 F.
Supp. 2d 1074 (C.D. Cal. 2005) (Federal Case I); and (2) Stewart v. Warner
Bros. Entmt Inc. et al., 12-CV-01875-PMP-GWF (D. Nev. 2012) (Federal
Case II) (collectively the Federal Cases). See Prior Order, p. 2. Accordingly,
the Board allowed supplemental briefing on the motion in part as one for
summary judgment with respect to the issue of collateral estoppel. See id. In
accordance with the Prior Order, on September 2, 2014, Petitioner filed a
supplemental response brief and evidence, and Respondent filed a timely
reply brief to Petitioners supplemental response.
In deciding this motion, we have considered all of the parties original and
supplemental briefs on Respondents combined motion, with one exception.
We have not considered or even reviewed Petitioners three (3) surreplies,
filed May 23, 2014, September 29, 2014 and September 30, 2014, because
Trademark Rule 2.127(a) and (e) prohibits surreplies.2 See Trademark Rule
2 On May 27, 2014 and October 3, 2014, Respondent filed objection[s] to
Petitioners surreplies and on October 7, 2014, Petitioner filed a response to
Respondents October 3, 2014 objection. Because Trademark Rule 2.127(a) and (e)
prohibits surreplies, we need not consider Respondents objection[s] or Petitioners
response thereto. Respondent is reminded that it is not necessary to file and the
Board discourages motions seeking to strike or object to surreplies, since surreplies
-2-
Cancellation No. 92058387
2.127(a) and (e) (allowing the Board to consider reply briefs, but providing
that [t]he Board will consider no further papers in support of or in opposition
to a motion); see also No Fear Inc. v. Rule, 54 USPQ2d 1551, 1553 (TTAB
2000); TBMP § 502.02(b) (2014).
Motion to Dismiss
Respondent argues for dismissal of this proceeding on the ground that
Petitioner has not adequately pleaded her standing or a claim upon which
relief can be granted. Respondent asserts that Petitioners allegations of
standing are vague and unclear and are not supported by a single factual
allegation. Motion, pp. 8 and 10. As for Petitioners alleged grounds for
cancellation, Respondent asserts that Petitioner has failed to plead fraud
with particularity as required by Fed. R. Civ. P. 9., and that the other claims Ibm os 2 warp 45 iso download.
Sophia Stewart Third Eye
and statutory provisions referenced in the amended petition are outside of
the Boards jurisdiction, irrelevant or time-barred. See id. at pp. 6-7 and 12-
17.
In response, Petitioner argues that Respondent filed the instant motion
to avoid answering the Petition, but does not respond to the merits of
Respondents assertions that Petitioner has failed to adequately allege her
standing and a valid ground for cancellation. Instead, Petitioner rehashes
various issues addressed in the Federal Cases and mentioned in her amended
complaint. See TTABVUE # 16, p. 3 and document generally.
will not be considered whether or not a motion to strike or an objection is filed.
TBMP § 517.
-3-
Cancellation No. 92058387
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is a test of the
sufficiency of the complaint. To survive a motion to dismiss, a claimant need
only allege sufficient factual matter as would, if proved, establish that: (1)
she has standing to maintain the claims; and (2) a valid ground exists for
cancelling the registration. See Lipton Indus., Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185, 187 (CCPA 1982). For purposes of determining
the motion, all of [the claimants] well-pleaded allegations must be accepted
as true, and the [claims] must be construed in the light most favorable to [the
claimant]. The pleading must be construed so as to do justice, as required by
Fed. R. Civ. P. 8(e). Petroleos Mexicanos v. Intermix SA, 97 USPQ2d 1403,
1405 (TTAB 2010).
The purpose of the standing requirement is to prevent mere intermeddlers
from initiating proceedings. Accordingly, to sufficiently allege standing
within the meaning of Section 14 of the Trademark Act, 15 U.S.C. § 1064, a
petitioner must plead facts sufficient to show that she has a direct and
personal stake in the outcome of the cancellation proceeding and a reasonable
basis for her belief that she will be damaged. See Ritchie v. Simpson, 170
F.3d 1092, 1098, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999). The focus must
be on whether the petitioner has pleaded a reasonable basis for her belief in
damage; there is no requirement that any actual damage be pleaded to
establish standing or even to prevail in a cancellation proceeding.
-4-
Cancellation No. 92058387
As for whether a claimant has sufficiently alleged a valid ground for
cancellation, the complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In particular, a claimant must allege well-pleaded
factual matter and more than [t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, to state a claim
plausible on its face. Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at
555).
With respect to standing, the amended petition for cancellation sets forth
the following allegations:
(1) On January 28, 2013, Michael Bentkover, Senior Legal Counsel of
Warner Bros. contacted Amazon to restrain me in trade, as he
confessed Matrix 4 Evolution: Cracking the Genetic Code written
by me is a substantially similar body of work to The Matrix. There
are as a result specific facts showing that there is a genuine issue
[sic] cancelling Warner Bros. Trademark.; Amended Complaint, p.
7;
(2) The registered mark ENTER THE MATRIX is a derivative owned
by me, because Warner Bros. copied verbatim graphics and other
protective [sic] expression from copy written [sic] source work.
Warner Bros. [sic] proposed mark is copied verbatim in appearance
to the registered mark and incorporates the dominant term
MATRIX with the Warner Bros [sic] fraudulently procured mark
merely adding the word ENTER. Id. at p. 9;
(3) Petitioner was injured by the willful fraudulent procurement of the
Enter the Matrix Trademark. Id. at p. 10;
(4) On October 6, 2011, Kate Chilton, S.V.P. of Warner Bros. legal
Department sent correspondence to Netflix, and Amazon
instructing those companies to stop selling The Third Eye book.
-5-
Cancellation No. 92058387
The arbitrary and capricious acts were designed to injure the
petitioner and restrain [Petitioner] in trade. Id.;
(5) The petitioner, Stewart, has been injured and suffered some
damage over $3 billion dollars3 as a result of the fraud. Id. at p. 11;
and
(6) Enter The Matrix trademark use [sic] made is [sic] based on
copyrighted work from the Third Eye. Id.
These allegations are not sufficient to plead Petitioners standing. While
Petitioner alleges that Warner Bros.[] proposed mark is copied verbatim in
appearance to the registered mark Petitioner does not identify the purported
registered mark or the goods or services it covers and has not alleged that
she owns the registered mark.4 Similarly, Petitioner has not sufficiently
pleaded how her purported ownership of a copyright in the Third Eye could
serve as a basis for standing in this trademark cancellation proceeding.
Indeed, Petitioner has not alleged how the involved mark is a derivative of
or based on any of her alleged copyrighted material.
3To the extent Petitioner seeks damages in this action, she is advised that the Board
has no authority to award damages. See General Mills Inc. v. Fage Dairy Processing
Indus. SA, 100 USPQ2d 1584, 1591 (TTAB 2011); cf. Central Manuf. Inc. v. Third
Millennium Tech. Inc., 61 USPQ2d 1210, 1213 (TTAB 2001) ([T]he Board does not
impose monetary sanctions or award attorneys fees or other expenses[.])
4 In her supplemental response brief, Petitioner asserts ownership of Application
Serial No. 85243232 for the mark THE MATRIX. See Supplemental Response, p. 7.
Pleading ownership of this application and alleging, if true, that the application has
been refused based on the involved registration, or that Petitioner has a reasonable
belief that registration will be refused, would be sufficient to allege Petitioners
standing. See ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB
2012) (evidence of record showing petitioners pending application refused
registration based on respondents registration); Kallamni v. Khan, 101 USPQ2d
1864, 1865 (TTAB 2012); see also TBMP § 309.03.
-6-
Cancellation No. 92058387
The closest Petitioner comes to adequately pleading standing is the
allegation that Respondent contacted Amazon to restrain me in trade, as he
confessed Matrix 4 Evolution: Cracking the Genetic Code written by me is a
substantially similar body of work to The Matrix. Id. at p. 7. It is not an
absolute requirement that a party have proprietary rights in a mark in order
to maintain a cancellation action. Ipco Corp. v. Blessings Corp., 5 USPQ2d
1974, 1976-77 (TTAB 1988). Indeed, the Board has held that a claimants
non-trademark use of a term, its continued right to use that term, and receipt
of a cease and desist letter from the defendant objecting to a claimants use of
the term is sufficient to demonstrate a claimants real interest in the
proceeding. See id. While Petitioner has alleged use of a portion of the
involved mark in the title of a copyrighted work, she has not specified the
basis for Respondents purported objection to Amazon. Moreover, Petitioners
allegations of a substantially similar body of work, derivative work, copy
written [sic] source work, and copying verbatim suggest that the dispute
concerns copyrights. If Respondent objected to the Matrix 4 work only on
grounds of copyright infringement, as the allegations imply, it is unclear how
such an objection could form the basis for standing to maintain this
trademark cancellation action. If, however, Respondent objected to the
Matrix 4 work based on rights in the involved mark, such objection coupled
with Petitioners alleged use of the term Matrix in the title of a work might
be sufficient to plead Petitioners standing.
-7-
Cancellation No. 92058387
We next consider whether Petitioner has adequately stated a claim upon
which relief can be granted. The original petition for cancellation was filed
December 13, 2013, which was more than five years after issuance of the
involved registration. As such, the available grounds for cancellation are
strictly limited to those grounds set forth in 15 U.S.C. § 1064(3). Accordingly,
Petitioners allegations regarding purported dilution, descriptiveness or that
the involved mark is the title of a single creative work are time-barred, and
can be given no consideration. Similarly, allegations that Respondent
incorrectly sought and received registration for goods in International Class 9
rather than for services in International Class 41 and filed an amendment
impermissibly broadening the scope of the goods identified in the underlying
application are ex parte examination issues that do not form the basis for a
cancellation action against any registration let alone a registration more than
five years old, like the one here. See e.g., Flash & Partners S.P.A. v. I.E. Mfg.
LLC, 95 USPQ2d 1813, 1816 (TTAB 2010) (explaining that ex parte
examination issues do not form a basis for a cancellation action). In addition,
as the Board has previously explained, the Boards jurisdiction is limited to
determining only the right to register a trademark. See Boards order of
February 27, 2014, p. 1. Accordingly, allegations in the amended petition
concerning purported perjury, antitrust conspiracy, conspiracy against
trade, copyright infringement, trademark infringement, racketeering, RICO
violations, wire fraud, and violations of the Economic Espionage Act are
-8-
Cancellation No. 92058387
outside of the Boards jurisdiction and cannot be considered. See e.g.,
McDermott v. San Francisco Womens Motorcycle Contingent, 81 USPQ2d
1212, 1216 (TTAB 2006) (Board does not have authority to determine
whether a party has engaged in criminal or civil wrongdoings), affd unpubd,
240 Fed. Appx. 865 (Fed. Cir. 2007), cert. dend, 552 U.S. 1109 (2008); Carano
v. Vina Concha y Toro S.A., 67 USPQ2d 1149, 1152 (TTAB 2003) (Board has
no jurisdiction to determine a copyright infringement claim that does not
concern the involved mark); Paramount Pictures Corp. v. White, 31 USPQ2d
1768, 1771 n.5 (TTAB 1994) (no jurisdiction over claims of trademark
infringement and unfair competition), affd mem., 108 F.3d 1392 (Fed. Cir.
1997); Yasutomo & Co. v. Comm. Ball Pen Co., 184 USPQ 60, 61 (TTAB 1974)
(no jurisdiction to address anti-trust issues); Am.-Intl Travel Srvc., Inc. v.
AITS, Inc., 174 USPQ 175, 179 (TTAB 1972) (no jurisdiction to determine
alleged violations of criminal statute).
The amended petition makes passing reference to deceptiveness, and
abandonment two claims that are available against a registration that is
more than five years old but no such claims have been adequately pleaded.
To set forth a claim for abandonment, a plaintiff must allege facts that set
forth a prima facie case of abandonment by a pleading of at least three
consecutive years of non-use or must set forth facts that show a period of non-
use less than three years coupled with an intent not to resume use. Otto Intl
Inc. v. Otto Kern GmbH, 83 USPQ2d 1861, 1863 (TTAB 2007) (internal
-9-
Cancellation No. 92058387
citation omitted). To plead a claim that a mark is deceptive, a plaintiff must
allege that: (1) the applied for mark consists of or contains a term that
misdescribes the character, quality, function, composition or use of the goods;
(2) prospective purchasers are likely to believe that the misdescription
actually describes the goods; and (3) the misdescription is likely to affect a
significant portion of the relevant consumers decision to purchase the goods.
See, e.g. In re Budge Mfg. Co., 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988);
In re ALP of S. Beach Inc., 79 USPQ2d 1009 (TTAB 2006). The amended
petition is devoid of sufficient factual allegations to adequately plead
abandonment or deceptiveness.
The only possible remaining claim in the amended petition is fraud. Fraud
in procuring a trademark registration occurs when an applicant for
registration knowingly makes a specific false, material representation of fact
in connection with an application to register, with the intent of obtaining a
registration to which it is otherwise not entitled. See In re Bose Corp., 580
F.3d 1240, 91 USPQ2d 1938, 1939 (Fed. Cir. 2009); Qualcomm Inc. v. FLO
Corp., 93 USPQ2d 1768, 1770 (TTAB 2010). A claim of fraud must set forth
all elements of the claim with a heightened degree of particularity in
compliance with Fed. R. Civ. P. 9(b), which is made applicable to Board
proceedings by Trademark Rule 2.116(a). See Asian and Western Classics
B.V. v. Selkow, 92 USPQ2d 1478, 1478-79 (TTAB 2009) ([T]he pleadings
[must] contain explicit rather than implied expression of the circumstances
-10-
Cancellation No. 92058387
constituting fraud.). Intent to deceive the USPTO is a specific element of a
fraud claim, and must be sufficiently pleaded. In re Bose, 91 USPQ2d at
1939-1940; Asian and Western Classics, 92 USPQ2d at 1479.
Petitioner makes numerous allegations regarding purportedly false
statements, many of which are not understandable5 or do not provide a viable
basis for a claim of fraud.6 The only possible viable basis for a fraud claim
that we have been able to discern in the amended complaint is that
Respondent was not using the mark in connection with all of the goods
identified in the application at the time Respondent filed its allegation of use.
With respect to such a claim, Petitioner has alleged that:
Respondents attorney made a fraudulent statement regarding the
marks use. Amended Petition, p. 2;
5 For example, the amended complaint includes the following allegations suggesting
that Petitioner may have intended to allege fraud on the ground that the involved
mark is not, in fact, a mark, but rather is the title of a single creative work: (1) The
trademark office [sic] has stated that it will not register titles of single creative
works, DVD class 9 under this legal doctrine
. Amended Petition at p. 3; (2) Enter
The Matrix the video game; a single-work title was approved for publication (and
has been published), notwithstanding a statement of record by the registers [sic]
materially false statement on the application that the mark relates to a single
motion picture. Id. at. p. 5; and (3) Failure to disclose that the mark is the title of a
single work constitutes fraud on the Trademark Office because the omission of the
fact that the goods are not a service or a movie. Id. These allegations, however, are
not sufficiently clear and are not otherwise sufficient to meet the heightened
pleading requirement for a claim of fraud.
6 As explained supra, p. 8, allegations that Respondent incorrectly filed an
application for goods in International Class 9 rather than for services in
International Class 41 and filed an amendment impermissibly broadening the scope
of the goods identified in the underlying application are ex parte examination issues.
As such, they cannot form the basis for a claim of fraud. Similarly, Respondents
purported misappropriation of Petitioners copyrighted work The Third Eye in
creating The Matrix trilogy of films is not material to Respondents registration of
the word mark ENTER THE MATRIX.
-11-
Cancellation No. 92058387
The mark is in use but not on all the goods and services listed in the
application
. When [Respondent] filed its statement of intent or use
in response to the notice of allowance, the mark was not in use on the
movie, film, television, etc. Id. at p. 3;
[S]uch a false misrepresentation to the office [sic] material because
use is required to get a registration for each good or service listed. Id.;
There is no question that the USPTO would not have granted [sic]
registration covering goods or service [sic] that the mark is not being
used [sic] because of a fraudulent class 09 instead of class 41 [sic]. Id.;
[Respondent], in failing to disclose these facts to the Trademark
Office, intended to procure a registration to which [Respondent] was
not entitled. Id.; and
Avis Frazier-Thomas, being a former examining attorney knew
procedural law and protocol. Signing the declaration was willful intent,
in addition, the oath of use includes statements, such as the possibility
of imprisonment or fine for false statements that inject [sic] such
solemnity [sic] to prompt through [sic] investigation before signature
and submission to the trademark office [sic]. Thomas, who signed the
oath, was clearly in a position to (or to inquire) [sic] as to the truth of
the statements therein. [sic]. Id.
These allegations fail to state a claim for fraud upon which relief can be
granted because Petitioner has not alleged that Respondent knew its
allegation of use was false.7 Importantly, Petitioner also has not alleged any
facts to support its bald allegation that Respondent filed a false allegation of
use.
Because Petitioner has failed to adequately allege her standing or a claim
upon which relief can be granted, Respondents motion to dismiss is
GRANTED. Whether Petitioner should be allowed an opportunity to replead
7 As Respondent points out, an allegation that an applicant or registrant should
have known of the falsity of its statement is not sufficient to plead or prove a claim
of fraud. In re Bose Corp., 91 USPQ2d at 1940.
-12-
Cancellation No. 92058387
turns on whether she is precluded from establishing standing based on the
Federal Cases. We address this issue below.
Motion for Summary Judgment
Respondent argues that Petitioner is collaterally estopped from
establishing standing in this proceeding because [two district] courts already
have held that she has no real interest under any cognizable theory. Motion
at pp. 11-12. More specifically, Respondent asserts that in Federal Case II
[t]he Nevada district court found that Petitioners use of the term MATRIX
postdates any claimed use of the term by [Respondent], and thus, Petitioner
could not establish priority . In addition, the California district court [in
Federal Case I] held that [Respondent] and the other defendants had
adduced uncontroverted evidence that the creators of The Matrix Movies did
not have access to Petitioners works and thus Petitioner could not establish
copyright infringement. Id. at p. 11.
Petitioner argues that the issues in the Federal Cases are not identical
issues to the grounds in the present case, Supplemental Response, pp. 1-2;
that no parties were ever summoned (nor [sic] lawsuit ever took [sic] place)
in Federal Case II because she withdrew the petition and the action was
dismissed, id. at p. 2; that Federal Case I was dismissed without prejudice;
therefore Petitioner is not stopped [sic] from attempting to assert [sic] same
counterclaims in [sic] subsequent petition to cancel, id. at p. 3; that she has
submitted a Report and recommendation from the U.S. District Court of
-13-
Cancellation No. 92058387
Utah affirming facts that Petitioner Stewart is the Writer and Owner of
Step 4: Tap on the option free, and the download process begin. Download 1mobile market for android. Step 5: Wait for the completion of the downloading process. Step 3: Enter the title of the app to open the app page.
the derivative Matrix and Terminator movies, id.; that the issue of
ownership of the trademark registration, had not been decided or litigated in
Federal Case I, id. at p. 4; that Respondent was not a party to [Federal Case
I]. It was Warner Bros. Studio, id.; and that Federal Case I was not decided
on [sic] merits because it was never prosecuted, the matter was dismissed for
failure to prosecute. No valid final judgment. [sic] id. at p. 6.
Summary judgment is only appropriate where there are no genuine
disputes as to any material facts, thus allowing the case to be resolved as a
matter of law. Fed. R. Civ. P. 56(a). The party seeking summary judgment
bears the burden of demonstrating the absence of any genuine dispute of
material fact, and that it is entitled to a judgment under the applicable law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats Fashions, Inc.
v. Pannill Knitting Co. Inc., 833 F.2d 1560, 4 USPQ2d 1793, 1796 (Fed. Cir.
1987). A factual dispute is genuine if, on the evidence of record, a reasonable
fact finder could resolve the matter in favor of the non-moving party. See
Opryland USA Inc. v. Great Am. Music Show Inc., 970 F.2d 847, 23 USPQ2d
1471, 1472 (Fed. Cir. 1992); Olde Tyme Foods, Inc. v. Roundys, Inc., 961 F.2d
200, 22 USPQ2d 1542, 1544 (Fed. Cir. 1992). Evidence on summary judgment
must be viewed in a light most favorable to the non-movant, and all
justifiable inferences are to be drawn in the non-movants favor. Lloyds Food
Prods., Inc. v. Elis, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir.
-14-
Cancellation No. 92058387
1993); Opryland USA, 23 USPQ2d at 1472. The Board may not resolve
genuine disputes as to material facts; it may only ascertain whether genuine
disputes as to material facts exist. See Lloyds Food Prods., 25 USPQ2d at
2029; Olde Tyme Foods, 22 USPQ2d at 1542.
![The Third Eye Sophia Stewart Pdf Download The Third Eye Sophia Stewart Pdf Download](https://www.indiewire.com/wp-content/uploads/2011/12/the-matrixSTEWART.jpg)
In order for issue preclusion to apply, the following requirements must be
met: 1) the issue to be determined must be identical to the issue involved in
the prior litigation; 2) the issue must have been raised, litigated and actually
adjudged in the prior action; 3) the determination of the issue must have
been necessary and essential to the resulting judgment; and 4) the party
precluded must have been fully represented in the prior action. See
Mayer/Berkshire Corp. v. Berkshire Fashions, Inc., 424 F.3d 1229, 76
USPQ2d 1310, 1313 (Fed. Cir. 2005). For the reasons discussed below, we
find that issue preclusion has not been established with respect to
Petitioners standing.
In Federal Case II, the Nevada district court screened Petitioners
complaint and amended complaints on its own initiative, pursuant to 28 USC
§ 1915(e) and:
(1) Dismissed Petitioners trademark infringement claim with prejudice
on the ground that such a claim had not been sufficiently pleaded and
the deficiencies could not be cured. See Motion at Exhibit B, p. 3 and
Exhibit C, p. 3. In reaching this determination, the district court
explained that Petitioner had alleged copyrights in the works Third
-15-
Cancellation No. 92058387
Eye and Matrix 4 but she had not allege[d] that she ha[d] registered
either title as a trademark; that Petitioner had not alleged that
[Respondent] created confusion in the marketplace by using the title
or name Third Eye for any of its products; and that Petitioners
copyright for the Matrix 4 work postdates [Respondents] use of the
Matrix name. Id. at Exhibit B, p. 3;
Sophia Stewart Books
(2) Dismissed8 Petitioners copyright infringement claim as improperly
pleaded and determined that the deficiencies could not be cured. The
court reasoned that although Petitioner pleaded ownership of
copyrights in Third Eye and Matrix 4 she did not allege that any
aspect of the Picture in question [Cloud Atlas] or its advertisements
[claiming that the Picture is from the creators of the Matrix Trilogy of
films] copie[d] a constituent part of Third Eye or Matrix 4. Id. at
Exhibit C, p. 3;
(3) Dismissed, with prejudice Petitioners claim for unfair trade practices
under Section 5(a) of the Federal Trade Commission Act because the
FTC Act does not provide for a private cause of action. See id. at
Exhibit B, pp. 4-5 and Exhibit C, p. 3; and
The Third Eye Sophia Stewart Pdf Download Full
(4) Allowed Petitioner time to file an amended complaint setting forth
Sophia Stewart The Third Eye Pdf Free
only a properly pleaded Sherman Act claim. See id. at Exhibit C, pp. 4-
5.
8 It is unclear from the exhibits attached to Respondents motion whether
Petitioners copyright claim was dismissed with prejudice.
-16-
Cancellation No. 92058387
Petitioner filed an amended complaint, but did not limit her allegations to
The Third Eye Sophia Stewart Pdf Download Pc
a Sherman Act claim. Before the court could act, Petitioner withdrew her
The Third Eye Sophia Stewart Pdf Download Full
complaint resulting in the district courts dismissal of Petitioners complaint
and petition for injunctive relief, with prejudice. See id. at Exhibit E.
In Federal Case I, Petitioner alleged that Respondent and others willfully
infringed certain of her copyrighted literary works by making and
distributing the Matrix trilogy of films.9 See id. at Exhibit A, Stewart v.
Wachowski, et al., 574 F.Supp.2d 1074, 1078 (C.D. Cal. 2006). The district
court granted Respondents motion for summary judgment finding that there
was no genuine dispute of material fact that Respondent and its co-
defendants did not have access to Petitioners protected work and that
Respondents works were not strikingly similar to Petitioners works. Id. at
pp. 1098 and 1109. In reaching its decision, the district court did not consider
whether Petitioner owned a valid copyright because neither Respondent nor
its co-defendants disputed that allegation. Id. at p. 1085.
The first element of issue preclusion has not been met because standing to
maintain this cancellation action involving registration of the mark ENTER
THE MATRIX is separate and distinct from whether Petitioner can maintain
trademark and copyright infringement actions against Respondent. That is,
simply because the Nevada district court found that Petitioner could not
maintain a claim for trademark infringement because it could not allege
9The district court also dismissed Petitioners RICO claim, and in the alternative,
granted summary judgment to Respondent on Petitioners RICO claim. Id. at pp.
1082 and 1110-11.
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Cancellation No. 92058387
priority in Matrix 4, and the California district court denied Petitioners
claim for copyright infringement, does not dictate that Petitioner is precluded
from establishing standing here as Petitioner need not allege a prior right or
any proprietary right to demonstrate standing in this proceeding.10 See
supra, p. 6, n.4 and p. 7.
Accordingly, Respondent is DENIED summary judgment on issue
preclusion.11
Time to Replead
In view of the foregoing, we find it appropriate to allow Petitioner an
opportunity to replead. Accordingly, Petitioner is allowed until thirty (30)
days from the mailing date of this order in which to file a second amended
petition for cancellation which: (1) complies with Trademark Rule 2.112(a);
(2) sufficiently alleges Petitioners standing and an available ground for
10 This case is distinguishable from Stephen Slesinger Inc. v. Disney Enters. Inc., 98
USPQ2d 1890 (TTAB 2011), affd 702 F.3d 640, 105 USPQ2d 1472 (Fed. Cir. 2012),
cert den., 134 S. Ct. 125 (2013). In Slesinger, the Board found that the key issue to
be decided in the consolidated Board actions was the same as the issue involved in
the prior civil action, namely, whether complainant has an ownership interest in
the Pooh works because in order to prevail on its substantive claims of likelihood of
confusion or dilution, or at least proceed to trial on its claims, [claimant] bears the
burden of establishing that it owns a mark or trade name previously used
and
not abandoned
or that it is the owner of a famous mark.
. Likewise, ownership
of the Pooh marks is central to [claimants] fraud claim and its claim of lack of
ownership
. Id. at 1895. Here, Petitioner has not alleged any claims requiring that
it establish prior proprietary rights.
11 The parties should note that the evidence submitted in connection with
Respondents motion for summary judgment is of record only for consideration of
that motion. To be considered at final hearing, any such evidence must be properly
introduced in evidence during the appropriate trial period. See Levi Strauss & Co. v.
R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993); Pet Inc. v. Bassetti, 219
USPQ 911 (TTAB 1983); Am. Meat Inst. v. Horace W. Longacre, Inc., 211 USPQ 712
(TTAB 1981).
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Cancellation No. 92058387
cancellation; and (3) omits any irrelevant allegations, including allegations
related to matters outside of the Boards jurisdiction. If Petitioner files a
second amended complaint that fails to comply with these requirements, any
non-complying claims may be dismissed with prejudice.
Respondent is allowed until thirty (30) days from the filing of any second
amended complaint to file an answer or otherwise respond. All other dates
are reset as follows:
Deadline for Discovery Conference 5/4/2015
Discovery Opens 5/4/2015
Initial Disclosures Due 6/3/2015
Expert Disclosures Due 10/1/2015
Discovery Closes 10/31/2015
Plaintiff’s Pretrial Disclosures Due 12/15/2015
Plaintiff’s 30-day Trial Period Ends 1/29/2016
Defendant’s Pretrial Disclosures Due 2/13/2016
Defendant’s 30-day Trial Period Ends 3/29/2016
Plaintiff’s Rebuttal Disclosures Due 4/13/2016
Plaintiff’s 15-day Rebuttal Period Ends 5/13/2016
In each instance, a copy of the transcript of any testimony, together with
copies of documentary exhibits, must be served on the adverse party within
thirty days after completion of the taking of that testimony. Trademark Rule
2.125.
Briefs shall be filed in accordance with Trademark Rule 2.128(a) and (b).
An oral hearing will be set only upon request filed as provided by Trademark
Rule 2.129.
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