Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02391-JAH-POR

Document 10

Filed 01/09/2008

Page 1 of 6

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RONALD MARTINETTI, ESQ. State Bar No.106 898 KAZANJIAN & MARTINETTI 520 East Wilson Avenue Glendale, California 91206 Tel. 818-241-1011 FAX 818-24'1-2193

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N

Attorneys for Lee's General John Lee

Defendants Toys, Inc.,

and

UNITED STATES DISTRICT SOUTHERN DISTRICT

COURT

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ID a N

OF CALIFORNIA

..-;"

".OC" CASE.

NO.07 (BTM

CV AJB)

2391

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GEORGIA-PACIFIC CONSUMER \'\ " PRODUCTS LP, a Delaware limited partnership, Plaintiff,

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DEFENDANTS' DECL. OF R. MARTINETTI IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER

vs.
LEE'S GENERAL TOYS, INC., corporation, JOHN LEE, an DOES 1-10,
" ,

a Callfornla individual;

...

)

Date:

Jan.

14,

2008

) Tlme: 2:30 pm and) PI: Courtroom 11 ) .

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19

Defendants.

(Assigned to J. Houston)

Hon.

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DECLARAT_IQ.N_OF .RON ~~:!!_!,.~~.~!,!".J;~ " Q~POSITION TO TRO

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that ant

I, 1.

Ron Martinet
I

ti,
attorney

declare:
for -.('1 befendants on January 7,

became

the

date

the John

opposition Lee's

was due.

It

is

my understandinq swinton told
obtain

that were

Defenda

daughter

and Mr. but Mr.

Stephen

discussing
on

possible
January

resolution
6 that the

Swinton
should

Ms.
legal

Lee

or

about

Defendants

counsel.

1

2.

On~January

7,

2008

I

sent

in

my

application

to

be

admitted

to
the--~ District \ not
nntfilp.

the
Courts i Janu'arv 7. I did for Central " and Northern " '..~.-7 California. since of I
\

Southern

District

via

Federal

Express.

I

am a

member

w~~
ad mi tted to this court as of

any
3.
I

opposition respectfully
'T'R{)

papers request
deni~d-

as of that
the
~t-t-~('!h",n

that Plaintiff's
phot,

day. h~ to
Anqet-~hp

Page 2 of 6

Contrary its lite color different
Plaintiff in size. (Ex Parte Application, pages 3 and 7) Further,

to

Plaintiff's

assertion,

'aphs
between is loqos are different,

moving tissue of the packaqinq is different, and the paper and Angel Soft. The typeface

papers

show that

there

is

no similarity

Filed 01/09/2008

it ~ demonstrate -",,---?~~""'that ~--anv ---~ m2mbers df~-th~ ~.- --~nuhl £"', ; td, h~vp ~ hppn

does

not

claim

a trademark

in

the

key

wo,rd

"Soft."

Moreover, z.J ('!nnrll~i:.n that
~~ uJ.

Document 10

are
p.xhibit

likely
an
~

to
anonymous letter similar Chow has product. no business alleqinq that

be confused.

Rather,

Plaintiff

has
a Mr. (Decl. relation

submitted
Allen

as
~hnw
A.
-I-n

~n
h~~

imported confusinqly
Mr. Allen

Towle,

Case 3:07-cv-02391-JAH-POR

Ryhihit-

28)

Def enn-

~nt-_~ 11-

Plaintiff mentions Defendant Lee's in 7) that

a footnote General Toys

(Ex have a valid

Application, California
c~rtiTi-

page
'T'r~npm~rk-

cate

which fai all parties

I

believe

demonstrates

that

Defendant .pra[ntrf'f-..coli-:fd'Mh~vp

is

operatinq ~;=1vpn rh;~

in

qood
and

th ~- lri-c"ontr.:ist time and

~nl1'..t-

money

by

engaging,

in

meaninqful

~pt-t-lp-

ment

discussions

before

filinq

this

lawsuit.

As Plaintiff

~dm;r.c::

:):

~

~

in
its moving papers, an easy acc

.odation
by

could wrapping
Application,

be reached and rewrap page

1

requesting
2

that
in (Ex Parte a different packaqe.

Defendant

remove

the

Angelite

the
tissue 3

20) 4
5)
Tn

addition to Plaintiff's failurp

to
demon~tr~rp

its
f~itn

R

probability
f\

of
Hispanic th~n
is

success,
shoppers-..are,-.morec~.l.j;kel (Ex y to be confused

Plaintiff

makes

an absolutely

bad

Page 3 of 6

claim 7

that

oth~r 8
evidp-n('!p-

shoppers. There
nn

Parte
and Plaintiff
shollln

Application,
immediately

paqe

14)

of
this claim
-J

whatsoever in writing.
giant ;!corporation

Q

Filed 01/09/2008

withdraw

this
Plnintif'f'

10

6)
that
will
11

is suffer for
will
i.c;

a
by i-_hp denialor ;r~

nn

irreparable
10 N m

harm

i=

1.2

request
that

a

THO. suffer

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Defendant 13

Lee's

General

Toys

is

a small

business

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severe
financial it Angelite 7)
17 be denied.
I declare under penalty of perj
lP.

hardship have of the above, we respectfully tissue paper. request the opportunity to plan

and disruption

if

the

TRO

Document 10

14

g~anted out
of

t~~~~ Oct!=WJ

~nn
. IIJ -1 < c Z

does line upon

not

any phasinq

~z~3~ 1-1n <, II! ~-< .'IIJ Zo
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the
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~

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Based

that

the

TRO

Case 3:07-cv-02391-JAH-POR

19 and corre~t--

that

the

foregoing

is

tru/?:

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2'
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Executed

this

January

8,

2008

at

Glendale,

California

91206
-

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2R 2R

r

,~l~

MO-A\<-~
-,

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Case 3:07-cv-02391-JAH-POR

11 Document 10

Filed 01/09/2008

Page 4 of 6

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-~;'T SECRETARY

,. OF STATE

Trademark Reg. No.109437 Class No. Int.16 CERTIFICATE OF REGISTRATION OF TRADEMARK
" KEVIN SHELLEY, Secretary of State of the State of California, hereby certify:
That in accordance with the application filed in this office the described below hag been duly registered in this office on behalf of: TRADEMARK

.1 Name of Applicant: Lee's General Toys, Inc. Business Address: 3389 E. 50th Street, Vernon, CA 90058 D~te first used in California; January 31, 2002 Date first used anywhere: Janu~ry 31, 2002 Description of Trademark: Angle Lite 500 and design, wherein the mark comprises the words "Angel Lite" and a star design disposed in the middle of an ova1 and the digits "500" disposed beneath the words "Angel Lite" inside the oval. Description of Goods on which the Trademark is used: Toilet paper, bathroom tissue. tissue paper . A coPY, specimen, facsimile, counterpart or a reproduction of the mark is attached Date of Registration: August 25, 2003 Term of Registration Extends to and Includes: August 25, 2013

IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this 25th day of August. 2003.

~~'KEVIN Secretary SHELLEY of State

, NP... A (/\f!V .."")

.~...

Case 3:07-cv-02391-JAH-POR
~ ~

Document 10

Filed 01/09/2008

Page 5 of 6

Kevin

Shelley OF STATE

CALIFORNIA

SECRETARY

BUSINESS

PROGRAMS

DIVISION
.

As Secretary of State, it is my pleasure to notify you that the mark you submitted ha5 been registered in this office. Please be advised that Section 14220(f) of the ,Business and Professions Code specifies that a mark shall not be registered if it so'resembles a mark or trade name already registered or used in this'.state by another and not abandoned, as to be likely, when applied to the goods or services of the applicant, to cause confusion or mistake or to deceive. My office has conducted a search of Califbmia trademark and service registrations. Your mark does not appear to resemble any previous regist~tion. mark

Please be advised. however, that there may be unregistered marks or California trade names used by corporations and partnerships, fictitious names, and names, under which individuals conduct business which may resemble your registration. A check for such names is beyond the scope of the review of this office in registering marks. Effective January 1, 1989 California trademark law no longer requires the Secretary of State to notify trademark owners of approaching expiration dates. Your trademark is valid for ten years and it is your responsibility to renew it within the six months prior to the expiration date. ..

KEVIN Secretary

SHELLEY of State

SECI$TA

7E FORM

TM.220

(Rev.O1-0JJ

Case 3:07-cv-02391-JAH-POR

Document 10

Filed 01/09/2008

Page 6 of 6

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PROOF OF SERVICE I am employed in Los Angeles the age of eighteen years and not My business address is 520 East 91206.
On this Opposition
.by

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County, a party Wilson
Decl. Restraining

California; I am over to the within action. Glendale, California
of R. Martinetti Order

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date I served to Motion for
delivery

Defendants' Temporary

in

personal

(to

the

address

below)
enclosed in a sealed in the United states addressed to :

x
by placing envelope with postage Post Office_mail_"box a true copy thereof thereon fully prepaid" at Glendale ",",""Calif.qrnia, I \'\ " suite 400 92130-2071

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Stephen Swinton, Esq. La tham & Watkins 12636 High Bluff.Drive, San Diego, California Tel. 858-523-5400 FAX 858-523-5450 .

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FAX to counsel for Georgia-Pacific Consumer Prod. (x) , . (x) BY MAIL I sealed and placed such envelope for collectlon and mailing to be deposited in the mail on the same day in the ordinary course of business at Glendale, California. I am readily familiar with our law firm's practice of collecting and processing correspondence and documents for mailing. They are deposited with the u.s. Postal Service on the same day as dated, in the ordinary course of business.
(State) the State is ti:ueI declare under penalty of perjury of California and the United states and -correct:--~.' '"._c,..,.;,"~._"",

and via

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laws of foregoing

under that

the the

(x)

(Federal are also to be filed via e-mail. of the state of California

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The papers that

I declare under penalty the foregoing is true Executed this January

of perjury anq correct. 8, 2008 at

Glendale,

California

91206

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