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CAUSE NO. 352-214202-05
.. RAYMOND SPOT~( GEORGE RAY. s-r
INC .. ··--:-·
:..,..
I
IN TH'E DISTRICf.COURT
_...-1.
PSI PARTNERS, LTD., AND PSI GP. LLC i§ ! _.- ':"{·.
AS THE GENERAL PARTNER OF PSI i§§ I 0 '='" /-:3,
PARTNERS. LTD.. i i 9- :> .'G'. ·: ·-~
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PLAINTIFFS,
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V. §§ OF TARRANT COUI'l1Y:1 TEX
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PAUL PEEBLES. r'\NO FIRST OLD 1
§i ?'-c> 0
CAPITAL, INC.,
l§i
. & ,
,.-.
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DEFENDANTS.
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PLAINTIFFS' POST-TRIAL BRIEF
Raymond Spath. George R01y, Inc.. PSI Partners. Ltd ..and PSI GP, LLC as the General
partner of PSI Partners, Ltd. (collectively ''Plaintiffs'').
filethis Post-Trial Briei and would show
the Court the following:
PRE-JUDGMENT INTEREST ON ATTORNEYS FEES
Plaintiffs agree that no evidence was provided at trial on the issue of the Plaintiffs' actual
payment of attorneys fees so as to entitle PJ~1intiffsto recover pre-judgment interest on
attorney's fees.
THE JURY'S ANSWER TO QUESTION NO. 15 SHOULD
NOT BE SET ASIDE BECAUSE IT CONFLICTS WITH QUESTION NO. 24
In t11eir post trialbrief, Defendants argue that the Jury's Answer to Question No. 15
should be set aside because they believe Question No. 15 and its answer conflicts with
Question No. 24. In addition, for the first time, Defendants argue that they were not required to
prove the "demand" element of their conversion cause of action against Plaintiff Spoth because
tile evidence at trialestablished a clear repudiation of First Old Capital's rights to the domain.
www.ocrl.com. Pl.;~intiffs
disagree and reassert their earlier argument that because Question
No. 15 omitted an essential element as to whether Defendants made demand upon Plaintiff
Spath. Question No. 15 was defective as given or cannot support a judgment. Because of this
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defect. the Court stlould not find that Que~:.tion No. 15 is in conflict with Question No. 24. ratt1er.
the Court should find Question No. 15 defective as given, such that itwould not support an
award for damages.
To prove an act of conversion, the pl:::intiff must establish that the defend 3
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and to Disregard Jury Findings. which was filed on September 28, 2007 and the Plaintiffs'
Supplement to Motion for Entry of Judgment of Partial Jury Verdict and to Disregard Jury
Findings. which was filedon February 19. 2008 These objections to Question No. 28 were not
addressed by the Court in the June 19, 2009 letter or in the Defendants' Post Trial Brief. which
wos filed on July 7, 2009.
Question No. 28 reads as follows:
Did the use. if any. by Raymond Spoth and/or George Ray. Inc. of the names "Old
Capital". "Old Capital Residential Lending" and/or "Old C<~pital Residential Lending and
Commercial Services" constitute infringement of the trademark rights. if any, of First Old
Capital in connections with the n:'.lmes ''Old Capital" and "Old Capital Residential
Lending"?
You CJreinstructed that in order to prove trademark or trade names infringement, Paul
Peebles and/or First Capital must prove:
1. The name or mark is eligible for protection;
' The owner is the senior user of the name or mark; and
J. That there is a likelihood of confusion between its name· or mark and the other
user's name or rnark.
You are instructed that rights in a trademark are obtained only through use of the mark.
A person acquires the right to exclude others from using a trademark by being the first to
use it in the marketplace. Tl1ere is nothing in the law requiring the owner of a trademark
to register the mark either at the state or federal level in order to secure rights in the
trademark.
Answer "Yes" or "No"
Answer Y~
To support their request for the Court to set aside the jury's answer to Question No. 28.
Plaintiffs reassert the objections submitted at the charge conference and in their Motion for
Entry of Judgn1ent on Partial Jury Verdict and to Disregard Jury Findings.
This Question should be set aside, in part, because the jury's answer conflicts with the
final rulings of the United States Patent and Trademarks in regard to the registered marks "Old
Capit. 2004
(":juppkmcnl l'xll. A"), which .:ontain$ excerpts ofthl· Char~.c Conl':rtn<:t'
l'r;mscript where Plaintilh ass~o1cd thdr
ohjc~:: ions.
~ 1i1.,· 1\h>t. liJr Entry of.l. at p. J.
'l o.
PLAINTIFFS POST TRIAL BRIEF
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4. The evidence is uncontroverted that Peebles and First Old Capital
misappropriated the designs, logos and other materials created by Spoth and
GRI and used such materials to unfairly compete with Spoth and GRI; and
5. The evidence is uncontroverted that Peebles and FirstOld Capital converted the
intangible personal property of Spath and GRI, that Spath and GRI issued a
demge
being taken by Spoth and/or GRI, therefore the question should not have been submitted to the
Question No. 22 and 23
Plaintiffs reqL1est the Court to disregard the jury's answer to Question No. 22, and
Mot. ror Enlr~ ()r J. Ul p. 3. ~ 7.
.\ Pl.s'
'1 l"!.s'
Mol. ii.w F.ntry ol' J. at p. 4. •; X.
' Char:;.<' of C<>Urt Tr: 5:2 l-6:·1, Sept. ~6. 200ri; Suppkn1~at l!xh. :\ ~ :21-t'l:·l.
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PLAINTIFFS POST TRIAL BRIEF
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because of the failure to answer Question No. 22 properly. tt1e jury's failure to answer Question
23, for the reasons that
1. The evidence is uncontroverted that Speth relied on Peebles' promise to pay
Spoth and GRI for their fee splits and commissions and such reliance was
foreseeable: and
2. The amount found by the jury of $50,048.38 is tl1e amount which should also
t1ave been found by the jury in response to Question 23.c;
Question No. 24
Spath and GR! request the Court to disregard the jury's answer to Question No. 24
which asked "Is First Old Capital the owner of the domain W\NW.ocrl.ggm and the website
content located at such address'' for the reasons that:
1. The Question does not contain any instructions or direction to the jury as to how
to determine ownership of a "domain";
2. Without any instruction as to what constitutes ownership or what factors are to be
considered in determining ownership of a "domain" the jury had no basis inlaw
for determining the answer to this Question; and
3. Speth and GRI timely and specifically objected to the failure to include in the
Charge of the Court any instruction with respect to determining ownership in the
Charge Conference.;·
Question Nos. 25, 26 and 27
Plaintiffs request that Question No. 25 be disregarded because the question inquires as
to whether Spoth would manage and/or promote the Colleyville Title Company on behalf of PSI
and the unconverted evidence shows he did. Therefore, there is no fact and the question
should not have been submitted to the jury.~ Similarly, Question No. 26 should be disregarded
because the question inquires as to whether Spath agreed to manage and/or promote the
Colleyville Title Company on behalf of PSI and the unconverted evidence shows he did. Again,
0
there is no fact issue that is submissible to the jury and it should not have been submitted.
• Pl.s" Mot. for Eutry nr.J. 3t p. ~. ~·~ 9.
'Pl.~· Mot. 1\.>r Entry ni"J. at p. 5.
~ 10: Suppkm•"H F~h./16:5-iD.
~ :':uppk111ctll [.~h. /\ 6: 11-16.
'' Suppt.,mcnl F.xh. A C•:! 7-:!2.
PLAINTIFFS POST TRIAL BRIEF P:.gc 12
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Accordingly, witt1 respect to Question No. 27. since this question deals with damages
that are conditioned off the answers to Question No. 25 and 26. Plaintiffs reassert their objectior1
to Question No. 27 because there isno evidence of damages. for the reason that there is no
evidence of liability with respect to the issues in Question Nos. 25 and 26.1()
Question No. 29
Pl<~intiffsreassert their request for the Court to disregard Question No. 29 for the
following reasons:
1. This question deals with the damages relating to the Qllestion of liabilityfor
trademark infringement as asked in Question Nos. 28:
2. It should not be submitted to the jury because there is no evidence to establish a
finding of liability in Question No. 28;
3. There could be no evidence that could establish an element of damages:
4. It inquires as to the loss profits and the only testimony in this case with respect to
trademark damages was the testimony of Peebles that Spoth made $25,000 on
the loans that he closed. That is not proof of lost profits because itis a gross
number: and
5. The issue should not be submitted to the jury because there is no evidence that
can be submitted to the jury, or that was submitted to the jury, proving lost
profitsu
Question No. 30
Plaintiffs reassert their request for the Court to disregard Question No. 30 for the
following reasons:
1. The instruction states the use of the tradename has acquired a secondary
me-25-9:1~1.
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been confused witil respect to the subject marks.
Question No. 31
Plaintiffs reassert their objections to Question No. 31 for the following reasons:
1. This question deals with the damages relating to the question of liability for unfair
competition as asked in Question No. 30;
2. This question should not be submitted to the jury because there is no predicate
liability finding that would withstand a no evidence point and
3. The instruction with respect to lost profits is that lost profits are the damages t11at
are sought to be recovered in this particular instance. There was no evidence
before the jury of any lost profits as distinguished from the gross number of
$25,000 testified to by Peebles. n
Question No. 33
Plaintiffs reassert their request for the Court to disregard the jury's answer to Question
No. 33 inquiring as to "a reasonable fee' for the services of Defendants' counsel for the reasons
that:
1. There is no instruction in Question No. 33 as to any of the factors the jury is to
consider in determining a fee;
2. There is no instruction in Question No. 33 as to what is "a reasonable fee'' or any
instruction informing the jury as to how to determine the reasonableness of a fee;
and
3. Plaintiffs timely objected to the foregoing failure and omission in the Charge of
14
the Court at the Charge Conference.
Objections to Court's Failure to Include Plaintiffs' Questions in Charge of Court
Further, Plaintiffs reassert their previous objection to the failure of the Court to
include questions that were submitted by the Plaintiffs during the informal charge conference. :•;
In particular, Plaintiffs reassert their objection to the Court failing to tender the issues with
respect to willfulness. and the issues with respect to exemplary damages. Plaintiffs submit they
1
: Supple::ment Ex h..\
'1:)-1 R.
,.. Suppkmcnl Exll. A <>:20·1 0:4.
~i
'' Pl.s' Mot. for Emry ot'.l. at p. 7.
12; Supplement t;;>;h. /1
10:5·10.
t> Supplement Lxh. A Ill: 11-l.'i.
PLAINTIFFS POST TRIAL BRIEF
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were entitled to such a finding.
Finally. Plaintiffs reassert their previous objections that no damage issue stlould have
been submitted to tho jury under any theory of recovery against Spath and GRI because:
1. There is no evidence of proximate cause of damages by anything that Spath has
done with respect to any of the issues tendered by Peebles or First Old CapitaL
2. There are no damages on the trademark infringement other than the 525,000;
and
3. No other damages were proved with respect to any other issue in this case.~'~
THE PLAINTIFFS REASSERT REQUEST FOR THE COURT
TO AWARD PREJUDGMENT AND POST-JUDGMENT INTEREST
Plaintiffs request the Court to also include prejudgment interest on the amounis awarded
to them from the date of the filingof the petition Lmtiljudgment is rendered and further award
post-judgment interest on the entire amount at the statutory rate.
1
~
THE PLAINTIFFS REASSERT THEIR REQUEST
FOR THE COURT TO ENTER DECLARATORY JUDGMENT
Plaintiffs reassert their request for this Court to enter declaratory judgment making the
following findings:
1. Declaring the PSI Partners. Ltd. dissolved and ordering its affairs to be wound
up. its property sold and its debts paid:
2. Ordering the appointment of AI Richardson, C.P.A.. 925 South Main Street,
Grapevine, Texas i6051, as the person to wind up the partnership affairs:
3. Directing that the following debts and amounts be determined by Mr. Richardson:
i) IRS Payroll Taxes $15.000
ii) Tarrant County Taxes 650
iii) GCISD Taxes 5,400
iv) Reimburse GRI for telephone bills 2,100
v) Reimburse GRI for alarm company bills 400
vi) Reimburse GRI for utility bills 1.800
vii) Reimburse GRI for storage of 5,560
partnership products
viii) Other items as determined by Mr.
Richardson
-·-----·---·..- - -
'''Supplement Ex h. ;\Ill: I() .. ~).
,., Supplement 1.::\h. ;\
I I ::;-1 I.
"Pl.~· Mot. fnr Entr: of J. aLp. R.
~ 13.
P;lgc 15
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4. Directing all parties to turn over to Mr. Richardson allpartnership books. assets.
computer records and information, accounts. monies. personal or intangible
property or other items belongin~ to the partnership;
5. Directing Mr. Richardson to sell the partnership assets and pay the partnership
debts in the order listed above in paragraph IV.5.(c): and
6. Directing Mr. Richardson to prepare fino! tax returns for the partnership and
directing all p<:Jrties
to this suit to provide him with the information necessary to
1
prepare such final returns. ''
PRAYER
Plaintiffs prcoimilc (41.?j (,J!>-2H27
!\nard Ccrtilicd in l.nlior alHI Employmrnt Law
.h.t!:!X.t~:J!!'!'-~:.~!":...tt.!P.~.~Y..~.!.~!J.t!.B_~~~fl.~! .
T~xn• llo3rd flf Lrgnl SJ>wncmploym~ntlr."'··':(tnJ
Jum! 8, 2006
VIA FACSIMILE No, (214) 745 53911
Thomas 13 . .t\llcman
Winstead, Scclu-est & Minick, J'..C.
RECEIVED
5400 'Renaissance Tower .JUN 1 Z 2006
1201 Elm Street
Dallas. Tt~xas 75270
Rc: Gcilf:J.:e
· Roymc.nu{/':.'pcith, Ray. Inc., PSI Partners,' Ltd, .imd PS(G.P. LLC. as tlw
General Parlner cif PST Partners. Ltd. v. l'aul I'ecblc.~.. and First Old Capital,
Inc.; Cause No. 352-214202-05 · ·· · · ·
f>ear Mr. ',\!Ieman: ·
I3y no\v you have had an oppl)rtunity tel review the documents we have produced in this
.matter. As ybu shoi.rld be llWiU'C, there an: muncmu~ docume'nts rcJlccting Fir~t Old Capital,
Inc.'s ("FOCI") use of the names ''Old Capital Residential Lending"', "Old Capital'',. and ''Old
C:q)ital Rcsidcnlinl ami Ct)mmcrcial Lending'' since April of 1999. Those documents include
documents lh<~larc numbered 7-14 and the. set of docmlJcnts numbered ll41-1 089: A.lso .it is
evident from docurncnts numbered R41. 902, 9 I 2.')5 I .and others thnt FOCI was nsinC! the'
"cnpit:-~1building" logo as early ns Novc~lhcr 2001. whid1 was approximately six n1ontbs b~inrc
Raymond Spoth · bt:camc ·a sponsored loan oiliccr f(lrFOCI \l;th the Texas Dcp:utment of
Savings and T.oan.
Ownership in a trademark Is gained hy actual usc of the nwrk. "It is axiomatic in ·
trademark Jaw that the standard lest of o\vnership is priority of use." Scngoku rVork~ /.td.,v.
RMC International. Ltd:, 96 F.3d 1217. 1219 (9u' Cir. 1996) as modified, 97 F.3d.1460 (<)th Cir.
I 'J96).Tb.::r6 is n(ltbing in t.b\~ htw rl:quiring ·th.: owner or atrademark to register the mark either·
ut the state or fedcr:il level in order to sccun~ rie.hts in the tmdcm:trk. "One of the bedrock
principles of trademark. l.aw is that tmdemnrk o~· S\~rvkc mark owm:rship i.~ not acquired by
fedt:ral or stilt\~
n:gislnttion. Rather •. :ownership ri!-~htsD.mv only from prior npproprimion and
actual us~:· ;tllarc( Enterpri.~cs. lri~·.
1',Advanced i'rogramming Nrsouri:es: ·inc:, 146· F.Jd 350
(6th Cir.. 199Xl.
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Thomas Fl. A llcrnan
.fun~~.2006
1\lgt• ~
Further, rt~gi~tmtion of a trademark alone doe$ not gu::trantee ownership of the niark. "To
nc.quirc ownership of a trndemnrk it is not en,) ugh to httve ...registered it first; the par1y claiming
ownership must h:i
. H•. l""'i.~. (''d
.> .,.
C1r. ( 'l..,6).
1) .
We assert that George Ray, Inc.·~ filing of the following trademark applications: with the
U.S. Tradcmilrk office an: fraudulent:
OLD CAPITAL SERIAL NO: 7664S:l95
OLD CAPITAL Rf:SIJ)ENT1Al. LENDING w/desif!n SEIUAL NO: 76653135
OT.D CM'TTAL RESIDENTIAL LENDfNG Sl::Klt'\L NO: 78716423
We arc d<'m:mding that George Ray. lnc. and Raymond Spolh immediately cca~c and
desist using the name~ "Old Capital Residential Lending". ''Old Capital", mill '~Oiu· Capital
Kcsidcntial and Comtncrcinl Lending". We arc :tlso req11csting that George Rny. Inc. ·a.grcchy
.lun·cHi, 2006 .to voluntarily ahand!m the ahove trademark applications. l.nthe event tbat George
R;:ty,Inc. will not H. Allcmaa
June R. 2006
with clear evidence of FOCI's owncrsl~p of the names and trademark: !look !()fw:ml to ht~ari11g
from you by JLUJc 16, 2006. ·
Very truly your~,
. HLB!als
cc: r:ir;,t Old Capital, Inc.
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07/17/2009 16:01 FAX 2146897~·
..
--_.-~
\;\ljNSTEAQ
TH:\ Working Copy
July II. 2006
dimGl dial: 214.74S.Siil'\
ta 11c.:man
;;:1 t. Ima~~es ot TTAH p.::·oct-~~d Ln~3 r: i 1 e~~
c::~n
b~~ •..:icwcd iJSing TT$VUt2 at .~~~.t:P._:,//~.tt.1bv:~.~~.:I.~-~~-E~:.~; ..~_5:.f.?..'!.·
P~rties s!1ould also b~ ~w~r·~ rJ[ ~hnnges in the r1Jles Rffecting
t!':.-~dP.m<~J.t'k
mat:.t:f;:.:·~.;,
including ruJ.c:: of practic~ befol·t~ t:hf-!TT.L\B.
See Rules of ............
Practice
___ ,. _________
,,, ....·-- .....for
--~·-""·--
Trademark-Related Filinas ________
Under
..."--·-------·· ..--····---..-····-·-· ..·------
--- ..,..,.. "'••"' ..-.......
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the
._..... -
M~1.~~lr. ~::.~} -,rmp l..;~rrH:~:~~:..!~~.~-~~:!7:~.~-.... ~l~:..~-,
.~~:t:<~:t~)·~·:n ·1 &8 F~:·cl. R. ~1 S, 7~18 ( St~pt t)mb(7):t.~
26, 2003j (eff(~ct::i.vc! Novcmbo1· :;:, 2003) R~or:gd·~-1.l.:::.-~.!::. LS.:!.: ... 2:'X
1
Correspondence ~.!.':~~t.MO~herPr~?.Y..~~. ~~!:."'~r.~.
68 Fed. Reg. 18,~86 (Augl.J~~t
13, 2uv:~) (~tJ:~c.:t-~i."...-e
Scptcmbc::.- 12, 2003i. Noti•.::£:~ cc:nc~:r:nin~-1 thr-!
r·u 1 t·~;~
ci"1.:n19(~:~a:r.-(:~
avai labl.F- at ~.~.'!!'.:~.~.:!~~Q~E:. -D::~'.Y...
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;,~·/(h.Jfflill~ i"nill ;m,J A;,v'lf--~-:~1 Hr.1t.HrJ t!vt=ltWllt: hftny !>y~;lt.:m. !tl!JL~lli.UJli.Dl!2....!iD:!.
ESTI A903G4
F.STT1\ Tmt:klf)!J tllltnhr~t·
f'1;1ns (i(ltO: 07/18/2006
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFOFnnett:
Cll18i200G
Tamera H. Bcnnt!t!
Bennett Law Office, PC
132 West Main Stroot
Lewisville. TX 75057
UNITED STATES
tbonnctt@tbonnotti;Jw_com
972-436-8141
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lJSPTO 'ITAHVUE. TmdcnwPl.'ri nrnnnn··7M.4X 1'l'i.~·,,~
711 7/! ()()()
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E~TTA ESTTA90365
Tri-'1Ck1:1f.i number:
fl;)lr.~·
filin£1 07/18/2006
IN THE UNITED STATES PATENT AND mADEMARK OFFICE
BEFORE H·IE IRJ\DEMARK TRIAL AND APPEAL 80AHD
A::,;pHt,:~mt. George Ray,lnc.
Applicaliorl St:r!al Nmtlb•,•e. 7664839$
1\nplic~tinn
Filir1q Dal.;;· 10/13/2005
M;lrk· OLD CAPITAL
D;·1tt:: •Jf Publtc;niion 07/18/2006
First 90 Day Request for Extension of Time to Oppose for Good Cause
Pur~uanllo :ll C.f.R Ser.:lion 2.102. Fir~;l Old Cnpi\i:ll, Inc:: .. 3JOO Sweet Gum Lane, GrapBvinN, T X 76051,
UNITFO STATES. 8 cNprxation org;mizcrJ undortho lows of Texa~. re~pectrully rnqun~·~ls !hill it be granted
r• 90-day extension or time to file ;1 notice of opposition aqainst tho atlovtl-idlmtified mnrk for cause sl1own .
th;;~!
Potential oppozer believe,; good cnuse is established ror !hi!; r\,qlJOSt by:
Tile potential oppot;er noods ::H:~i~.:;
g:r:ant~d unt.i 1
11/15/2006 or1 behalf of potPntiaJ oppoccr First Old
Capital, Inc.
P1t:O:ClSP.r3o !lOt. ttesitr.1tc: to cont:(.~ct t.be Tr·adcmu.rk T:ri.al. ..::!nd
App~i3.l at
Bo;J·t··c:J (703) .30a-<..1'.iOOi.f. you h.:,vc: any que:.]tionG
t·el.::.1ting to this ~~xtr~nt3ion.
New Developments at the Trad~~ark Trial and Appeal Board
TTl~B forms fot~ filin9
e.i f.."!Ct.;.-onic c.t. t::!xL~n~~ i on~3 of t.l.me. to
oppo!:>t-!, rlot:·ic(~!~•of opposlti.on, p~~t.it:ion for canc~~llat.:iotJ, not·.·ice
of: ex pvr.-l~.cuppeal, and .inL!~r· part.8~~ tiling:::; are r1ow avi~o.ilz.tblc
;;:t httP..!..L.L::cct_t;.i::l.:..~.S..P.,tl')..:.9.(2.\f·
Im<.lsc::-.of TTAB pr·oc~ed.i.nc:; f:i.l.es cetn
b~ vi~wf:".d iJ!':iLns 'r'T'ABVuc .:tt h~.SP...:~//_~~~l?. ~>v~~-l?~.:.~}-~.P.~~E?....·.. 9.~Y·
Partico ohould ~lso be awar~ <'f ~},~r,ges in tt1e rul~~ Mffe~ting
tr:adem(l.rk mat::terg, :tncJ.uding rt1lc.s of practicf~ lH·~r::n·(7:
th<:~ 'l'T.Z\B.
s e ~· nr
H•l 1 (~ ~::; P :~·.;::J. ~~:.•~·.l. ~.!::_f..S2.!:.~. -I.~:9.. ~~~.~!9. .~·.~;.- B~~ ~!~~--~. c:sl_!::~. ~-~~9.-~.-P.~~-~~.~ 2:: ..... t 11 P-
~~'.<:iE.!SL.E.;.gt~gs:_~}_!_~).~~D.f.'!}1tdt.icm Acl> 6B Fed. R. ss, 748 (September
~~(,, :~ 00 '3) ( ~~f fcc t i vc Novembet- :~, 2 o03 ) ~3 ,O.pplicationFit~ Registration #: ,;l_2_Q_Q_~_§:?,
Application Status: Rcgi:.tcrc(l
Mark: OLD CAPITAL RESIDENTlAL LENDING
Potential Opposer
Name: Fir~;t .01(1.. C:.i:IPi.tr Publie.atiOf'l 07125/2006
First 90 Day Request for Extension of Time to Oppose for Good Cause
Pursuant to 37 C.F.R. Section 2.102, Fir~! Old c.,pi!al. Inc .. 3309 Sweet Gum Ume, Gmpevinxten~:ion of time to filo ~ notice of opposition ngains! the above-identified m<~rk tor cnusn shown .
Pntnnliai oppO!~er believes th<~t nood c:auso i:; o:;lnbli:;hcd for !his request by:
- The potential oppo~:er needs 'l notice ol opposition is set to P.xpirH on 08124/2006. First Old Capit.:ll. Inc.
respectfully requests thot tho time pr,riorJ within which to me an opposition be extended until 11 /22!2006.
RP.:;peclfully subcnillcd.
/tCJmCri3 h bennett!
07/25/2006
T<1mera H. Bennett
Bennett Law Office, PC
132 West Main Street
Lcwi:wille, TX 75057
UNITED STATES
tbennett@tbcnncttlaw.com
9 72-436-13141
37 of38 7117/2009 3:56:03 PM [Central Da~ight TimeJ
07/17/2009 16:03 FAX 21468978-
• Ja] 038/038
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
"1'<:-Jrnt~nJ
II. lk~rmf.~tl::
BRnnRtt I~w Offica, PC
132 West Main Street
l,~wiGv.i.l.le, TX 7S057
Mailed: July 25, 2006
Serial No.: 78716423
ESTTA TRACKING NO: ESTTA91407
The r·f,qur'n t t:o ex t.enc:l t ·i rne to oppo:;;e :i. sgr<'IT1t.ed un t.i 1
11/22/2006 on bch.::tl.f of potcnti.::tl opposer First Old
Capital, Inc.
Please do not hesitate to contact the Trademark Trial and
Appeal Boai·d .::tt(703) 308-9300 if you have any _questions
r~lat.ing tu Ll1i~ ~xt~nsion.
New Developments at the Trademark Trial and AppQal Board
TTAB forms for electronic filing ot extennions of time to
oppose, notices of opposition, pet:i.t:ion for cancellat:ion, notiC<''
ot t~x P.:.9~~Y·
Imagen ot TTAJ3
Preview
• 07/17/2009 15:56 FAX 21468978~ ~ 006/038 CAUSE NO. 352-214202-05 .. RAYMOND SPOT~( GEORGE RAY. s-r INC .. ··--:-· :..,.. I IN TH'E DISTRICf.COURT _...-1. PSI PARTNERS, LTD., AND PSI GP. LLC i§ ! _.- ':"{·. AS THE GENERAL PARTNER OF PSI i§§ I 0 '='" /-:3, PARTNERS. LTD.. i i 9- :> .'G'. ·: ·-~ !§ § !,i ; ,. ~·;--ll c.j) -;; 'J ,. ,-·-- .__--- ., \"11 PLAINTIFFS, § ~~- ~ ~a ~ /~ ~ i ' - V. §§ OF TARRANT COUI'l1Y:1 TEX r- .i.! ~ .r;:: ,./_ PAUL PEEBLES. r'\NO FIRST OLD 1 §i ?'-c> 0 CAPITAL, INC., l§i . & , ,.-. -;o cP DEFENDANTS. ''"·-····-· .. ·········- ·-·-·-·.. . ............_____ ··-. ... . ----·-·-···~--- . . i.i.i ..... l~?~~)UDI(;If.\!::.PJ~"!:i3.fCT ·-·-· _____ ' ,, ; , PLAINTIFFS' POST-TRIAL BRIEF Raymond Spath. George R01y, Inc.. PSI Partners. Ltd ..and PSI GP, LLC as the General partner of PSI Partners, Ltd. (collectively ''Plaintiffs''). filethis Post-Trial Briei and would show the Court the following: PRE-JUDGMENT INTEREST ON ATTORNEYS FEES Plaintiffs agree that no evidence was provided at trial on the issue of the Plaintiffs' actual payment of attorneys fees so as to entitle PJ~1intiffsto recover pre-judgment interest on attorney's fees. THE JURY'S ANSWER TO QUESTION NO. 15 SHOULD NOT BE SET ASIDE BECAUSE IT CONFLICTS WITH QUESTION NO. 24 In t11eir post trialbrief, Defendants argue that the Jury's Answer to Question No. 15 should be set aside because they believe Question No. 15 and its answer conflicts with Question No. 24. In addition, for the first time, Defendants argue that they were not required to prove the "demand" element of their conversion cause of action against Plaintiff Spoth because tile evidence at trialestablished a clear repudiation of First Old Capital's rights to the domain. www.ocrl.com. Pl.;~intiffs disagree and reassert their earlier argument that because Question No. 15 omitted an essential element as to whether Defendants made demand upon Plaintiff Spath. Question No. 15 was defective as given or cannot support a judgment. Because of this PLAINTIFFS POST TRIAl. BRIEF Page 1 6of 38 7/17/2009 3:56:03 PM [Central Da~ight TimeJ • 07/17/2009 15:58 FAX 21488978~ laJ 007/038 defect. the Court stlould not find that Que~:.tion No. 15 is in conflict with Question No. 24. ratt1er. the Court should find Question No. 15 defective as given, such that itwould not support an award for damages. To prove an act of conversion, the pl:::intiff must establish that the defend 3 8of 3~ 711712009 3:5~:03 PM !Central Da~ight Time! 07/17/2009 15:57 FAX 21468978~ • ~ 009/038 and to Disregard Jury Findings. which was filed on September 28, 2007 and the Plaintiffs' Supplement to Motion for Entry of Judgment of Partial Jury Verdict and to Disregard Jury Findings. which was filedon February 19. 2008 These objections to Question No. 28 were not addressed by the Court in the June 19, 2009 letter or in the Defendants' Post Trial Brief. which wos filed on July 7, 2009. Question No. 28 reads as follows: Did the use. if any. by Raymond Spoth and/or George Ray. Inc. of the names "Old Capital". "Old Capital Residential Lending" and/or "Old C<~pital Residential Lending and Commercial Services" constitute infringement of the trademark rights. if any, of First Old Capital in connections with the n:'.lmes ''Old Capital" and "Old Capital Residential Lending"? You CJreinstructed that in order to prove trademark or trade names infringement, Paul Peebles and/or First Capital must prove: 1. The name or mark is eligible for protection; ' The owner is the senior user of the name or mark; and J. That there is a likelihood of confusion between its name· or mark and the other user's name or rnark. You are instructed that rights in a trademark are obtained only through use of the mark. A person acquires the right to exclude others from using a trademark by being the first to use it in the marketplace. Tl1ere is nothing in the law requiring the owner of a trademark to register the mark either at the state or federal level in order to secure rights in the trademark. Answer "Yes" or "No" Answer Y~ To support their request for the Court to set aside the jury's answer to Question No. 28. Plaintiffs reassert the objections submitted at the charge conference and in their Motion for Entry of Judgn1ent on Partial Jury Verdict and to Disregard Jury Findings. This Question should be set aside, in part, because the jury's answer conflicts with the final rulings of the United States Patent and Trademarks in regard to the registered marks "Old Capit. 2004 (":juppkmcnl l'xll. A"), which .:ontain$ excerpts ofthl· Char~.c Conl':rtn<:t' l'r;mscript where Plaintilh ass~o1cd thdr ohjc~:: ions. ~ 1i1.,· 1\h>t. liJr Entry of.l. at p. J. 'l o. PLAINTIFFS POST TRIAL BRIEF 15 or 38 711712009 3:55:03 PM !Centr~ Da~ight TimeJ • 07/17/2009 15:59 FAX 21468978~ ~ 016/038 4. The evidence is uncontroverted that Peebles and First Old Capital misappropriated the designs, logos and other materials created by Spoth and GRI and used such materials to unfairly compete with Spoth and GRI; and 5. The evidence is uncontroverted that Peebles and FirstOld Capital converted the intangible personal property of Spath and GRI, that Spath and GRI issued a demge being taken by Spoth and/or GRI, therefore the question should not have been submitted to the Question No. 22 and 23 Plaintiffs reqL1est the Court to disregard the jury's answer to Question No. 22, and Mot. ror Enlr~ ()r J. Ul p. 3. ~ 7. .\ Pl.s' '1 l"!.s' Mol. ii.w F.ntry ol' J. at p. 4. •; X. ' Char:;.<' of C<>Urt Tr: 5:2 l-6:·1, Sept. ~6. 200ri; Suppkn1~at l!xh. :\ ~ :21-t'l:·l. Page 11 PLAINTIFFS POST TRIAL BRIEF 16 of38 711712009 3:56:03 PM !Centr~ Da~ight Timej 07/17/2009 15:59 FAX 21468978. • 1€1 017/038 because of the failure to answer Question No. 22 properly. tt1e jury's failure to answer Question 23, for the reasons that 1. The evidence is uncontroverted that Speth relied on Peebles' promise to pay Spoth and GRI for their fee splits and commissions and such reliance was foreseeable: and 2. The amount found by the jury of $50,048.38 is tl1e amount which should also t1ave been found by the jury in response to Question 23.c; Question No. 24 Spath and GR! request the Court to disregard the jury's answer to Question No. 24 which asked "Is First Old Capital the owner of the domain W\NW.ocrl.ggm and the website content located at such address'' for the reasons that: 1. The Question does not contain any instructions or direction to the jury as to how to determine ownership of a "domain"; 2. Without any instruction as to what constitutes ownership or what factors are to be considered in determining ownership of a "domain" the jury had no basis inlaw for determining the answer to this Question; and 3. Speth and GRI timely and specifically objected to the failure to include in the Charge of the Court any instruction with respect to determining ownership in the Charge Conference.;· Question Nos. 25, 26 and 27 Plaintiffs request that Question No. 25 be disregarded because the question inquires as to whether Spoth would manage and/or promote the Colleyville Title Company on behalf of PSI and the unconverted evidence shows he did. Therefore, there is no fact and the question should not have been submitted to the jury.~ Similarly, Question No. 26 should be disregarded because the question inquires as to whether Spath agreed to manage and/or promote the Colleyville Title Company on behalf of PSI and the unconverted evidence shows he did. Again, 0 there is no fact issue that is submissible to the jury and it should not have been submitted. • Pl.s" Mot. for Eutry nr.J. 3t p. ~. ~·~ 9. 'Pl.~· Mot. 1\.>r Entry ni"J. at p. 5. ~ 10: Suppkm•"H F~h./16:5-iD. ~ :':uppk111ctll [.~h. /\ 6: 11-16. '' Suppt.,mcnl F.xh. A C•:! 7-:!2. PLAINTIFFS POST TRIAL BRIEF P:.gc 12 17 of38 711712009 3:55:03 PM [Centr~ Da~ight TimeJ 07/17/2009 15:59 FAX 21468978. • ~018/038 Accordingly, witt1 respect to Question No. 27. since this question deals with damages that are conditioned off the answers to Question No. 25 and 26. Plaintiffs reassert their objectior1 to Question No. 27 because there isno evidence of damages. for the reason that there is no evidence of liability with respect to the issues in Question Nos. 25 and 26.1() Question No. 29 Pl<~intiffsreassert their request for the Court to disregard Question No. 29 for the following reasons: 1. This question deals with the damages relating to the Qllestion of liabilityfor trademark infringement as asked in Question Nos. 28: 2. It should not be submitted to the jury because there is no evidence to establish a finding of liability in Question No. 28; 3. There could be no evidence that could establish an element of damages: 4. It inquires as to the loss profits and the only testimony in this case with respect to trademark damages was the testimony of Peebles that Spoth made $25,000 on the loans that he closed. That is not proof of lost profits because itis a gross number: and 5. The issue should not be submitted to the jury because there is no evidence that can be submitted to the jury, or that was submitted to the jury, proving lost profitsu Question No. 30 Plaintiffs reassert their request for the Court to disregard Question No. 30 for the following reasons: 1. The instruction states the use of the tradename has acquired a secondary me-25-9:1~1. Page 13 PLAINTIFFS POST TRIAL BRIEF 18 of 38 711712009 3:56:03 PM !Centr~ Da~ight TimeJ • 07/17/2009 15:59 FAX 21468978. ~ 019/038 12 been confused witil respect to the subject marks. Question No. 31 Plaintiffs reassert their objections to Question No. 31 for the following reasons: 1. This question deals with the damages relating to the question of liability for unfair competition as asked in Question No. 30; 2. This question should not be submitted to the jury because there is no predicate liability finding that would withstand a no evidence point and 3. The instruction with respect to lost profits is that lost profits are the damages t11at are sought to be recovered in this particular instance. There was no evidence before the jury of any lost profits as distinguished from the gross number of $25,000 testified to by Peebles. n Question No. 33 Plaintiffs reassert their request for the Court to disregard the jury's answer to Question No. 33 inquiring as to "a reasonable fee' for the services of Defendants' counsel for the reasons that: 1. There is no instruction in Question No. 33 as to any of the factors the jury is to consider in determining a fee; 2. There is no instruction in Question No. 33 as to what is "a reasonable fee'' or any instruction informing the jury as to how to determine the reasonableness of a fee; and 3. Plaintiffs timely objected to the foregoing failure and omission in the Charge of 14 the Court at the Charge Conference. Objections to Court's Failure to Include Plaintiffs' Questions in Charge of Court Further, Plaintiffs reassert their previous objection to the failure of the Court to include questions that were submitted by the Plaintiffs during the informal charge conference. :•; In particular, Plaintiffs reassert their objection to the Court failing to tender the issues with respect to willfulness. and the issues with respect to exemplary damages. Plaintiffs submit they 1 : Supple::ment Ex h..\ '1:)-1 R. ,.. Suppkmcnl Exll. A <>:20·1 0:4. ~i '' Pl.s' Mot. for Emry ot'.l. at p. 7. 12; Supplement t;;>;h. /1 10:5·10. t> Supplement Lxh. A Ill: 11-l.'i. PLAINTIFFS POST TRIAL BRIEF 19 of38 711712009 3:56:03 PM [Centr~ Da~ight TimeJ • 07/17/2009 18:00 FAX 21488978~ 141020/038 15 were entitled to such a finding. Finally. Plaintiffs reassert their previous objections that no damage issue stlould have been submitted to tho jury under any theory of recovery against Spath and GRI because: 1. There is no evidence of proximate cause of damages by anything that Spath has done with respect to any of the issues tendered by Peebles or First Old CapitaL 2. There are no damages on the trademark infringement other than the 525,000; and 3. No other damages were proved with respect to any other issue in this case.~'~ THE PLAINTIFFS REASSERT REQUEST FOR THE COURT TO AWARD PREJUDGMENT AND POST-JUDGMENT INTEREST Plaintiffs request the Court to also include prejudgment interest on the amounis awarded to them from the date of the filingof the petition Lmtiljudgment is rendered and further award post-judgment interest on the entire amount at the statutory rate. 1 ~ THE PLAINTIFFS REASSERT THEIR REQUEST FOR THE COURT TO ENTER DECLARATORY JUDGMENT Plaintiffs reassert their request for this Court to enter declaratory judgment making the following findings: 1. Declaring the PSI Partners. Ltd. dissolved and ordering its affairs to be wound up. its property sold and its debts paid: 2. Ordering the appointment of AI Richardson, C.P.A.. 925 South Main Street, Grapevine, Texas i6051, as the person to wind up the partnership affairs: 3. Directing that the following debts and amounts be determined by Mr. Richardson: i) IRS Payroll Taxes $15.000 ii) Tarrant County Taxes 650 iii) GCISD Taxes 5,400 iv) Reimburse GRI for telephone bills 2,100 v) Reimburse GRI for alarm company bills 400 vi) Reimburse GRI for utility bills 1.800 vii) Reimburse GRI for storage of 5,560 partnership products viii) Other items as determined by Mr. Richardson -·-----·---·..- - - '''Supplement Ex h. ;\Ill: I() .. ~). ,., Supplement 1.::\h. ;\ I I ::;-1 I. "Pl.~· Mot. fnr Entr: of J. aLp. R. ~ 13. P;lgc 15 PLAINTIFFS POST TRIAL BRIEF 20 of 38 711712009 3:56:03 PM !Centr~ Da~ight TimeJ • 07/17/2008 16:00 FAX 21468878~ ~ 021/038 4. Directing all parties to turn over to Mr. Richardson allpartnership books. assets. computer records and information, accounts. monies. personal or intangible property or other items belongin~ to the partnership; 5. Directing Mr. Richardson to sell the partnership assets and pay the partnership debts in the order listed above in paragraph IV.5.(c): and 6. Directing Mr. Richardson to prepare fino! tax returns for the partnership and directing all p<:Jrties to this suit to provide him with the information necessary to 1 prepare such final returns. '' PRAYER Plaintiffs prcoimilc (41.?j (,J!>-2H27 !\nard Ccrtilicd in l.nlior alHI Employmrnt Law .h.t!:!X.t~:J!!'!'-~:.~!":...tt.!P.~.~Y..~.!.~!J.t!.B_~~~fl.~! . T~xn• llo3rd flf Lrgnl SJ>wncmploym~ntlr."'··':(tnJ Jum! 8, 2006 VIA FACSIMILE No, (214) 745 53911 Thomas 13 . .t\llcman Winstead, Scclu-est & Minick, J'..C. RECEIVED 5400 'Renaissance Tower .JUN 1 Z 2006 1201 Elm Street Dallas. Tt~xas 75270 Rc: Gcilf:J.:e · Roymc.nu{/':.'pcith, Ray. Inc., PSI Partners,' Ltd, .imd PS(G.P. LLC. as tlw General Parlner cif PST Partners. Ltd. v. l'aul I'ecblc.~.. and First Old Capital, Inc.; Cause No. 352-214202-05 · ·· · · · f>ear Mr. ',\!Ieman: · I3y no\v you have had an oppl)rtunity tel review the documents we have produced in this .matter. As ybu shoi.rld be llWiU'C, there an: muncmu~ docume'nts rcJlccting Fir~t Old Capital, Inc.'s ("FOCI") use of the names ''Old Capital Residential Lending"', "Old Capital'',. and ''Old C:q)ital Rcsidcnlinl ami Ct)mmcrcial Lending'' since April of 1999. Those documents include documents lh<~larc numbered 7-14 and the. set of docmlJcnts numbered ll41-1 089: A.lso .it is evident from docurncnts numbered R41. 902, 9 I 2.')5 I .and others thnt FOCI was nsinC! the' "cnpit:-~1building" logo as early ns Novc~lhcr 2001. whid1 was approximately six n1ontbs b~inrc Raymond Spoth · bt:camc ·a sponsored loan oiliccr f(lrFOCI \l;th the Texas Dcp:utment of Savings and T.oan. Ownership in a trademark Is gained hy actual usc of the nwrk. "It is axiomatic in · trademark Jaw that the standard lest of o\vnership is priority of use." Scngoku rVork~ /.td.,v. RMC International. Ltd:, 96 F.3d 1217. 1219 (9u' Cir. 1996) as modified, 97 F.3d.1460 (<)th Cir. I 'J96).Tb.::r6 is n(ltbing in t.b\~ htw rl:quiring ·th.: owner or atrademark to register the mark either· ut the state or fedcr:il level in order to sccun~ rie.hts in the tmdcm:trk. "One of the bedrock principles of trademark. l.aw is that tmdemnrk o~· S\~rvkc mark owm:rship i.~ not acquired by fedt:ral or stilt\~ n:gislnttion. Rather •. :ownership ri!-~htsD.mv only from prior npproprimion and actual us~:· ;tllarc( Enterpri.~cs. lri~·. 1',Advanced i'rogramming Nrsouri:es: ·inc:, 146· F.Jd 350 (6th Cir.. 199Xl. 24 of38 7/17/2009 3:56:03 PM [Central Da~ight Time! • 141025/038 07/17/2009 16:00 FAX 21468978- Thomas Fl. A llcrnan .fun~~.2006 1\lgt• ~ Further, rt~gi~tmtion of a trademark alone doe$ not gu::trantee ownership of the niark. "To nc.quirc ownership of a trndemnrk it is not en,) ugh to httve ...registered it first; the par1y claiming ownership must h:i . H•. l""'i.~. (''d .> .,. C1r. ( 'l..,6). 1) . We assert that George Ray, Inc.·~ filing of the following trademark applications: with the U.S. Tradcmilrk office an: fraudulent: OLD CAPITAL SERIAL NO: 7664S:l95 OLD CAPITAL Rf:SIJ)ENT1Al. LENDING w/desif!n SEIUAL NO: 76653135 OT.D CM'TTAL RESIDENTIAL LENDfNG Sl::Klt'\L NO: 78716423 We arc d<'m:mding that George Ray. lnc. and Raymond Spolh immediately cca~c and desist using the name~ "Old Capital Residential Lending". ''Old Capital", mill '~Oiu· Capital Kcsidcntial and Comtncrcinl Lending". We arc :tlso req11csting that George Rny. Inc. ·a.grcchy .lun·cHi, 2006 .to voluntarily ahand!m the ahove trademark applications. l.nthe event tbat George R;:ty,Inc. will not H. Allcmaa June R. 2006 with clear evidence of FOCI's owncrsl~p of the names and trademark: !look !()fw:ml to ht~ari11g from you by JLUJc 16, 2006. · Very truly your~, . HLB!als cc: r:ir;,t Old Capital, Inc. 26 of38 711712009 3:~6:03 PM [Centr~ Da~ight TimeJ • ~ 027/038 07/17/2009 16:01 FAX 2146897~· .. --_.-~ \;\ljNSTEAQ TH:\ Working Copy July II. 2006 dimGl dial: 214.74S.Siil'\ ta 11c.:man ;;:1 t. Ima~~es ot TTAH p.::·oct-~~d Ln~3 r: i 1 e~~ c::~n b~~ •..:icwcd iJSing TT$VUt2 at .~~~.t:P._:,//~.tt.1bv:~.~~.:I.~-~~-E~:.~; ..~_5:.f.?..'!.· P~rties s!1ould also b~ ~w~r·~ rJ[ ~hnnges in the r1Jles Rffecting t!':.-~dP.m<~J.t'k mat:.t:f;:.:·~.;, including ruJ.c:: of practic~ befol·t~ t:hf-!TT.L\B. See Rules of ............ Practice ___ ,. _________ ,,, ....·-- .....for --~·-""·-- Trademark-Related Filinas ________ Under ..."--·-------·· ..--····---..-····-·-· ..·------ --- ..,..,.. "'••"' ..-....... ~-·-""" the ._..... - M~1.~~lr. ~::.~} -,rmp l..;~rrH:~:~~:..!~~.~-~~:!7:~.~-.... ~l~:..~-, .~~:t:<~:t~)·~·:n ·1 &8 F~:·cl. R. ~1 S, 7~18 ( St~pt t)mb(7):t.~ 26, 2003j (eff(~ct::i.vc! Novcmbo1· :;:, 2003) R~or:gd·~-1.l.:::.-~.!::. LS.:!.: ... 2:'X 1 Correspondence ~.!.':~~t.MO~herPr~?.Y..~~. ~~!:."'~r.~. 68 Fed. Reg. 18,~86 (Augl.J~~t 13, 2uv:~) (~tJ:~c.:t-~i."...-e Scptcmbc::.- 12, 2003i. Noti•.::£:~ cc:nc~:r:nin~-1 thr-! r·u 1 t·~;~ ci"1.:n19(~:~a:r.-(:~ avai labl.F- at ~.~.'!!'.:~.~.:!~~Q~E:. -D::~'.Y... 31 of 38 711712009 3:55:03 PM !Centr~ Da~ight TimeJ 07/17/2009 16:02 FAX 21468978, • ~ 032/038 ;,~·/(h.Jfflill~ i"nill ;m,J A;,v'lf--~-:~1 Hr.1t.HrJ t!vt=ltWllt: hftny !>y~;lt.:m. !tl!JL~lli.UJli.Dl!2....!iD:!. ESTI A903G4 F.STT1\ Tmt:klf)!J tllltnhr~t· f'1;1ns (i(ltO: 07/18/2006 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFOFnnett: Cll18i200G Tamera H. Bcnnt!t! Bennett Law Office, PC 132 West Main Stroot Lewisville. TX 75057 UNITED STATES tbonnctt@tbonnotti;Jw_com 972-436-8141 32 of3S 711712009 3:56:03 PM [Central Da~ight TimeJ 07/17/2009 18:02 FAX 21488978~ 141033/038 lJSPTO 'ITAHVUE. TmdcnwPl.'ri nrnnnn··7M.4X 1'l'i.~·,,~ 711 7/! ()()() 07/17/2009 16:02 FAX 21468978. • ~ 034/038 E~TTA ESTTA90365 Tri-'1Ck1:1f.i number: fl;)lr.~· filin£1 07/18/2006 IN THE UNITED STATES PATENT AND mADEMARK OFFICE BEFORE H·IE IRJ\DEMARK TRIAL AND APPEAL 80AHD A::,;pHt,:~mt. George Ray,lnc. Applicaliorl St:r!al Nmtlb•,•e. 7664839$ 1\nplic~tinn Filir1q Dal.;;· 10/13/2005 M;lrk· OLD CAPITAL D;·1tt:: •Jf Publtc;niion 07/18/2006 First 90 Day Request for Extension of Time to Oppose for Good Cause Pur~uanllo :ll C.f.R Ser.:lion 2.102. Fir~;l Old Cnpi\i:ll, Inc:: .. 3JOO Sweet Gum Lane, GrapBvinN, T X 76051, UNITFO STATES. 8 cNprxation org;mizcrJ undortho lows of Texa~. re~pectrully rnqun~·~ls !hill it be granted r• 90-day extension or time to file ;1 notice of opposition aqainst tho atlovtl-idlmtified mnrk for cause sl1own . th;;~! Potential oppozer believe,; good cnuse is established ror !hi!; r\,qlJOSt by: Tile potential oppot;er noods ::H:~i~.:; g:r:ant~d unt.i 1 11/15/2006 or1 behalf of potPntiaJ oppoccr First Old Capital, Inc. P1t:O:ClSP.r3o !lOt. ttesitr.1tc: to cont:(.~ct t.be Tr·adcmu.rk T:ri.al. ..::!nd App~i3.l at Bo;J·t··c:J (703) .30a-<..1'.iOOi.f. you h.:,vc: any que:.]tionG t·el.::.1ting to this ~~xtr~nt3ion. New Developments at the Trad~~ark Trial and Appeal Board TTl~B forms fot~ filin9 e.i f.."!Ct.;.-onic c.t. t::!xL~n~~ i on~3 of t.l.me. to oppo!:>t-!, rlot:·ic(~!~•of opposlti.on, p~~t.it:ion for canc~~llat.:iotJ, not·.·ice of: ex pvr.-l~.cuppeal, and .inL!~r· part.8~~ tiling:::; are r1ow avi~o.ilz.tblc ;;:t httP..!..L.L::cct_t;.i::l.:..~.S..P.,tl')..:.9.(2.\f· Im<.lsc::-.of TTAB pr·oc~ed.i.nc:; f:i.l.es cetn b~ vi~wf:".d iJ!':iLns 'r'T'ABVuc .:tt h~.SP...:~//_~~~l?. ~>v~~-l?~.:.~}-~.P.~~E?....·.. 9.~Y· Partico ohould ~lso be awar~ <'f ~},~r,ges in tt1e rul~~ Mffe~ting tr:adem(l.rk mat::terg, :tncJ.uding rt1lc.s of practicf~ lH·~r::n·(7: th<:~ 'l'T.Z\B. s e ~· nr H•l 1 (~ ~::; P :~·.;::J. ~~:.•~·.l. ~.!::_f..S2.!:.~. -I.~:9.. ~~~.~!9. .~·.~;.- B~~ ~!~~--~. c:sl_!::~. ~-~~9.-~.-P.~~-~~.~ 2:: ..... t 11 P- ~~'.<:iE.!SL.E.;.gt~gs:_~}_!_~).~~D.f.'!}1tdt.icm Acl> 6B Fed. R. ss, 748 (September ~~(,, :~ 00 '3) ( ~~f fcc t i vc Novembet- :~, 2 o03 ) ~3 ,O.pplicationFit~ Registration #: ,;l_2_Q_Q_~_§:?, Application Status: Rcgi:.tcrc(l Mark: OLD CAPITAL RESIDENTlAL LENDING Potential Opposer Name: Fir~;t .01(1.. C:.i:IPi.tr Publie.atiOf'l 07125/2006 First 90 Day Request for Extension of Time to Oppose for Good Cause Pursuant to 37 C.F.R. Section 2.102, Fir~! Old c.,pi!al. Inc .. 3309 Sweet Gum Ume, Gmpevinxten~:ion of time to filo ~ notice of opposition ngains! the above-identified m<~rk tor cnusn shown . Pntnnliai oppO!~er believes th<~t nood c:auso i:; o:;lnbli:;hcd for !his request by: - The potential oppo~:er needs 'l notice ol opposition is set to P.xpirH on 08124/2006. First Old Capit.:ll. Inc. respectfully requests thot tho time pr,riorJ within which to me an opposition be extended until 11 /22!2006. RP.:;peclfully subcnillcd. /tCJmCri3 h bennett! 07/25/2006 T<1mera H. Bennett Bennett Law Office, PC 132 West Main Street Lcwi:wille, TX 75057 UNITED STATES tbennett@tbcnncttlaw.com 9 72-436-13141 37 of38 7117/2009 3:56:03 PM [Central Da~ight TimeJ 07/17/2009 16:03 FAX 21468978- • Ja] 038/038 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 "1'<:-Jrnt~nJ II. lk~rmf.~tl:: BRnnRtt I~w Offica, PC 132 West Main Street l,~wiGv.i.l.le, TX 7S057 Mailed: July 25, 2006 Serial No.: 78716423 ESTTA TRACKING NO: ESTTA91407 The r·f,qur'n t t:o ex t.enc:l t ·i rne to oppo:;;e :i. sgr<'IT1t.ed un t.i 1 11/22/2006 on bch.::tl.f of potcnti.::tl opposer First Old Capital, Inc. Please do not hesitate to contact the Trademark Trial and Appeal Boai·d .::tt(703) 308-9300 if you have any _questions r~lat.ing tu Ll1i~ ~xt~nsion. New Developments at the Trademark Trial and AppQal Board TTAB forms for electronic filing ot extennions of time to oppose, notices of opposition, pet:i.t:ion for cancellat:ion, notiC<'' ot t~x P.:.9~~Y· Imagen ot TTAJ3