Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
ESTTA Tracking number:
Filing date:

Proceeding

ESTTA863875
12/11/2017

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
91224580

Party

Defendant
Draion M Burch Do, LLC

Correspondence
Address

Submission

Andrea H. Evans, Esq.
The Law Firm of Andrea Hence Evans, LLC
14625 Baltimore Ave. #853
Laurel, MD 20707
UNITED STATES
Email: jon@schiffrinlaw.com, andrea.evans@evansiplaw.com, alexis@schiffrinlaw.com
Brief on Merits for Defendant

Filer's Name

Andrea Evans

Filer's email

andrea.evans@evansiplaw.com

Signature

/Andrea H. Evans, Esq./

Date

12/11/2017

Attachments

DrDrai_BRIEF_9122458-FiledDec112017.pdf(413486 bytes )
brief exhibit a.pdf(281256 bytes )
brief exhibit b.pdf(3941490 bytes )

 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Andre Young,

Opposer,
Opposition No. 91224580 (Parent case)
Opposition No. 91226572 (Child case)
v.

Driaon M. Burch Do, LLC,

Applicant.

APPLICANT’S TRIAL BRIEF

 TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................................................... III
I.

INTRODUCTION................................................................................................................................................ 1

II.

LIKELIHOOD OF CONFUSION .................................................................................................................... 5
Factor 1: Similarity of the Marks ....................................................................................................................................... 6
Factors 2: Similarity of the Goods and Services ............................................................................................................... 11
Factor 3: Channels of Trade ............................................................................................................................................ 17
Factor 4: Sophistication of Purchasers ............................................................................................................................. 20
Factor 5: Fame or Strength of Mark ................................................................................................................................. 22
Factor 6: Number and Nature of Similar Marks on Similar Goods ................................................................................ 24
Factor 7 and 8: Actual Confusion .................................................................................................................................... 26
Factor 9: Variety of Goods on which a Mark is Used ........................................................................................................ 26
Factor 10: Market Interface between the Applicant and the Opposer................................................................................ 27
Factor 11: Applicant 's Right to Exclude Others ................................................................................................................ 27
Factors 12 and 13· Extent of Potential Confusion and any Other Established Facts ......................................................... 28

III. FALSE SUGGESTION OF CONNECTION .................................................................................................. 29
1. Applicant’s marks are not the same as, or close approximations of, the name or identity previously used by Opposer
............................................................................................................................................................................................ 30
2. DR. DRE does not point uniquely and unmistakably to Opposer .................................................................................. 32
3. Opposer is not associated with Applicant’s services ..................................................................................................... 35
4. Opposer’s name and identity is not of sufficient fame or reputation to lead to a presumed connection with Applicant’s
medical services ................................................................................................................................................................. 35

ii

 

 TABLE OF AUTHORITIES
Cases 
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc.,107 USPQ2d 1750 (TTAB 2013) ........................ 33 
American Steel Foundries v. Robertson, 269 U.S. 372 (1926). ................................................................... 3 
Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F. 2d 1201 (1st Cir. 1983) ... 12, 20 
Ate My Heart, Inc. v. Adam Swan, (TTAB May 24, 2013) ........................................................................ 22 
Au-Tomotive Gold, Inc. v. Volkswagen of Am, Inc., 457 F.3d 1062 (9th Cir. 2006) ................................... 20 
Bose Corp. v. QSC Audio Products, Inc., 63 USPQ 1303 (Fed. Cir. 2002). ......................................... 13, 23 
Calvin Klein Indus. Inc. v. Calvins Pharm. Inc., 8 USPQ2d 1269 (TTAB 1988) ..................................... 32 
Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 U.S.P.Q.2d 1492 (T.T.A.B. 2005)  20, 
23, 25 
CarX Service Systems, Inc. v. Exxon Corp., 215 USPQ 345 (TTAB 1982). ............................................... 4 
Christian Broadcasting Network Inc. v. ABS-CBN International, 84 USPQ2d 1560 (TTAB 2007) ......... 23 
Citigroup, Inc. v. Capital City Bank Group Inc., 637 F.3d 1344 (Fed. Cir. 2011) ...................................... 8 
Cunningham v Laser Golf Corp., 55 USPQ2d 1842 (Fed. Cir. 2000). .................................................... 5, 6 
Data Concepts, Inc. v. Digital Consulting, Inc., 150F.3d 620 (6th Cir. 1988) .......................................... 25 
Dynamics Research Corp. v. Langenau Manufacturing Co., 704 F.2d 1575 (Fed. Cir. 1983) .................. 18 
Electronic Design & Sales v. Electronic Data Systems, 21 USPQ2d 1388 (Fed. Cir. 1992). ................... 20 
Envirotech Corp. v. National Service Industries, Inc., 197 USPQ 292 (TTAB 1977) ................................ 9 
Estee Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1510 (2d Cir. 1997); ................................................. 15 
Haveg Industries, Incorporated v. Shell Oil Company, 199 USPQ 618 (TTAB 1978). ............................ 26 
Homeowners Group, Inc. v. Home Marketing Specialists, Inc., 931 F.3d 1100 (6th Cir. 1991) ............... 21 
In re Bed & Breakfast Registry, 229 USPQ 818 (Fed. Cir. 1986) ............................................................. 33 
In re Belgrade Shoe Co., 411 F.2d 1352 (CCPA 1969). .............................................................................. 7 
In re British Bulldog, Ltd., 224 USPQ 854 (TTAB 1984) ........................................................................... 7 
In re Computer Communications, Inc., 484 F.2d 1392 (C.C.P.A. 1973) ................................................ 9, 31 
In re Dietrich, 91 USPQ2d 1622 (TTAB 2009). ......................................................................................... 8 
In re Digirad Corporation, 45 USPQ 2d 1841 (TTAB 1998) .............................................................. 12, 20 
In re E.I. DuPont de Nemours & Co., 177 USPQ 563 (CCPA 1973). ...................................................... 1, 5 
iii

 

 In re Electrolyte Laboratories, 929 F.2d 930 (Fed. Cir. 1990) .................................................................. 11 
In re Kayser-Roth Corp., 29 USPQ2d 1379 (TTAB 1993) ....................................................................... 32 
In re Lil Fats, Inc., Serial No. 85/404,979 (TTAB August 8, 2013). ......................................................... 13 
In re Sloppy Joe’s International Inc., 43 USPQ2d 1350 (TTAB 1997) ...................................................... 9 
International Star Class Yacht Racing Association v. Tommy Hilfiger U.S.A., Inc., 205 F.3d 1233 (2d. Cir.
2000). .................................................................................................................................................... 29 
Interstellar Starship Servs., Ltd. V. Eipz, Inc., 184 F.3d 1107 (9th Cir. 1999) ........................................... 10 
Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901 (TTAB 2007) ...................... 22, 23 
Local Trademarks, Inc. v. Handy Boys Inc., 16 USPQ2d 1156 (TTAB 1990) .......................................... 17 
M2 Software, Inc. v. M2 Commc’ns, LLC, 281 F.Supp. 2d 1166 (C.D. Cal. 2003) .............................. 14, 21 
Munsters Corp. v. Matsui Am., Inc., 730 F. Supp. 790. (N.D. Ill. 1989)). ................................................ 12 
NASA v. Bully Hill Vineyards, Inc. , 3 USPQ2d 1671 (TTAB 1987) ........................................................ 32 
Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F. 2d 1201 (1st Cir. 1983) ................. 12 
Planet Hollywood (Region IV), Inc. v. Hollywood Casino Corp., 80 F. Supp. 2d 815 (N.D. Ill. 1999) .... 10 
Playmakers, LCC v. ESPN, Inc., 297 F. Supp. 2d 1277 (W.D. Wa. 2003), ............................................... 16 
Q Div. Records, LLC v. Q. Records, 2000 U.S. Dist. LEXIS 1773 (D. Mass. 2000) ................................ 14 
Quartz Radiation Corp. v. Comm/Scope Co., 1 USPQ2d 1668 (TTAB 1986) .......................................... 17 
Real Estate One, Inc. v. Real Estate 100 Enterprises Corporation, 212 USPQ 957 (TTAB 1981) .......... 11 
Richards v. CNN, 15 F.Supp. 2d 683 (E.D. Pa. 1998) ............................................................................... 14 
Ritz Hotel Ltd. v. Ritz Closet Seat Corp, 17 USPQ2d 1466 (TTAB 1990) ................................................ 32 
Rolex Watch U.S.A., Inc. v. AFP Imaging Corporation, 101 USPQ2d 1188 (TTAB 2011) ...................... 31 
Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002) ................................................... 10 
SecuraComm Consulting v. Securacom , 166 F.3d 182 (3d Cir. 1999) ..................................................... 29 
Simon Says Enterprises, Inc. v. Milton Bradley Company, 522 F. Supp. 986 (SDNY 1981) .................... 16 
Star Indus. v. Bacardi & Co. , 412 F.3d 373 (2d Cir. 2005), ..................................................................... 29 
Stoncor Group, Inc. v. Specialty Coatings, Inc., 111 USPQ2d 1649 (Fed. Cir. 2014). ............................... 7 
Strange Music, Inc. v. Strange Music, Inc., 326 F.Supp. 2d 481, 491 (S.D.N.Y. 2004) ............................ 14 
Sullivan v. CBS Corp., 2002 U.S. Dist. LEXIS 6625 (N.D. Ill. 2002), ...................................................... 14 
Taylor Made Golf Company, Inc. v. R & M Golf Company dba Triumph Golf Company, (TTAB May 6,
1998). .................................................................................................................................................... 20 

iv

 

 Time, Inc. v. Petersen Publishing Co., 173F.3d 113, 118 (2d Cir. 1999) .................................................. 25 
Turner Entertainment Co. v. Nelson, 38 USPQ2d 1942, 1945 (TTAB 1996) ........................................... 26 
U.S. Conference of Catholic Bishops v. Media Research, 432 F. Supp. 2d 616 (E.D. Va, 2006) . .......... 15 
UMG Recordings, Inc. v. Mattel, Inc. , 100 USPQ2d 1868 (TTAB 2011) ................................................ 23 
United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918). .......................................................... 3, 36 
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 703 F.2d 1372 (Fed. Cir.
1983), ............................................................................................................................................... 22, 29 
Virgin Enters. Ltd. V. Nawab, 335 F.3d 141 (2d. Cir. 2003) ..................................................................... 21 
Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658 (5th Cir. 2000) ......................................... 16 
Worthington Foods, Inc. v. Kellogg Co., 732 F. Supp. 1417 (S.D. Ohio 1990) ............................... 8, 10, 11 

v

 

 I.

INTRODUCTION

 

Andre Young (“Opposer”) alleges that his registered trademark DR. DRE, is confusingly
similar to two of Applicant Draion M. Burch, LLC DO’s (“Applicant”) marks; the word mark

DR. DRAI, and the logo mark

. Opposer also claims that there is a false suggestion of

connection between the marks at issue, and that Applicant is diluting Opposer’s famous mark.
Opposer has elected not to pursue its dilution claim.
No substantive issues were raised during examination by two separate Examining
Attorneys, both of whom evaluated the same DuPont factors that will be used by the Trademark
Trial and Appeal Board in this proceeding. In re E.I. DuPont de Nemours & Co., 177 USPQ 563
(CCPA 1973). The Board, Examining Attorneys, and Federal Courts use DuPont and similar
tests to ascertain whether consumers will believe that two marks emanate from the same source,
or if there is an association or affiliation between the owners of the respective trademarks.
In this case, Opposer is a musician and music producer, while Applicant is a
gynecologist. As stated on Applicant’s website, “ABOUT DR. DRAI”, Applicant is:
“A highly respected, board-certified Obstetrician and Gynecologist - is a
nationally-recognized author, speaker, consultant, and go-to media expert
on women's health and transgender health issues. He travels the country to
meet with women one-on-one and in groups to provide and instruct on
healthcare.
Although Dr. Drai may be requested to spread his medical expertise to all
four corners of the U.S., he always makes time to genuinely help those in
need. As a pragmatic physician who offers endless charisma, high energy,
and a larger-than-life personality, his "bedside manner" makes it obvious
why his patients have named Dr. Drai "America's OBGYN."
Dr. Drai is the founder and chief medical advisor of DrDrai.com, where he
discusses actionable ideas and real-world strategies to help women take
control of their health. As an openly gay gynecologist he has patients
1

 

 flocking to him and his website for not only his medical expertise, but
because of the security they feel in the way he cares for, relates to, and
teaches women about subjects ranging from embarrassing vaginal care to
serious sexual assault. His mission: Real medical advice, simplified.
Dr. Drai takes his unique brand to the camera on his YouTube channel to
spill his popular "Medical T" (TIPS) helping his self-titled #Preggos,
#GYNEGirls and #GENTs pursue a healthier life. Dr. Drai's on-point
advice on off-the-wall questions about sexual health issues has many
calling him a "sexpert."
Dr. Drai earned his Doctorate of Osteopathic Medicine degree from The
Ohio University and completed his internship and residency at Michigan
State University.”

There is no circumstance where the products and services involved would be considered
related. Opposer has admitted as much (Applicant’s Notice of Reliance, Exhibit C, Response to
Interrogatory No. 17), and no reasonable consumer would believe that Opposer’s use of “Dr” is
equivalent to a medical degree designation.
Nevertheless, Opposer has claimed that his trademark is famous, and thereby, due to this

fame, Applicant’s marks, Dr. DRAI and

would falsely suggest a connection with

Opposer.
Opposer is attempting to associate celebrity with trademark fame, and the TTAB has not
gone so far to rule against other applicants based only on claims of celebrity by other trademark
owners.
Applicant does not deny that Opposer’s net worth is worth of several million dollars, and
that he is responsible for the sale and production of music. This does not automatically permit
Opposer to claim trademark rights in gross over the use of “Dr” and the shortened version of the
given name Andre. In fact, the Dr. Dre name is so inherently common, that Applicant is actually

2

 

 the second person to use it in his own field. Applicant’s Notice of Reliance, Exhibits D, I, and
K.
Federal law does not permit a trademark owner to have unlimited rights. The history of
decisions in this field has created appropriate boundaries for trademark protection throughout the
last 100 years. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918). [Finding that a
right of trademark is not a right in gross]. Allowing Opposer to prevail against an Applicant in a
completely unrelated field would reverse the course of trademark decisions so that celebrities
would be able to chill others in unrelated fields from using their own given names, along with
any professional designations they have earned. This expansion of trademark fame is well
beyond what was conceived through the creation of the Lanham Act, and all iterations of the
Federal Trademark Dilution Act and the Trademark Dilution Revision Act. A trademark right
does not entitle its owner to obtain a monopoly on goods and services that it does not, and would
not logically offer to the public. Id., at 98. American Steel Foundries v. Robertson, 269 U.S.
372, 46 S.Ct. 160, 70 L.Ed. 317 (1926).
Accordingly, this opposition should be dismissed and Applicant’s applications for Dr.

Drai and

should proceed to registration.

Applicant and Its Dr. Drai Marks
Opposer notes that Applicant’s testimony calls into doubt the claimed date of first use of
July 1, 2011. Opposer notes that Applicant previously applied to register Dr. Drai for “use in
connection with similar services, but the prior application was based on a first use in commerce
of September 2013.” (Brief, Page 20). However, Applicant’s abandoned application
86/501,831for the mark, Dr. Drai, was for non-related services namely, Education services,
3

 

 namely, providing consultation and lectures in the field of general consulting; Entertainment in
the nature of a media personality. Furthermore, the abandoned application is not relevant to this
opposition 37 C.F.R. Section 2.68 (b) [The fact that an application has been expressly abandoned
shall not affect any rights that the applicant may have in the mark set forth in the abandoned
application in any proceeding before the Office.]. Furthermore, there is no discrepancy of
Applicant’s awareness, as Opposer states. More specifically, Applicant’s awareness of the Dr.
Dre mark and awareness of the individual Dr. Dre are not contradicted. Applicant’s lack of
discrepancies does not call into question Dr. Drai’s credibility.
Regardless of any perceived discrepancy between the applications, one of which is
abandoned, Applicant has been identified as Drai his entire life. Burch Dep. 14:15-21.1
Regardless, claims of date of first use are not material as long as the first use in fact precedes the
application date. CarX Service Systems, Inc. v. Exxon Corp., 215 USPQ 345 (TTAB 1982).

Applicant’s Use of the Mark is Not Limited
Opposer states that the evidence of record shows that very few consumers have been
exposed to Applicant’s marks. However, Applicant does not have a burden to prove the number
of consumers exposed to the mark in order to register. In order to register a trademark,
Applicant needs a bona fide use of a mark in the ordinary course of trade. 15 U.S.C. 1127.
Although Opposer contends that Applicant has a limited consumer base, he makes no claim that
Applicant lacks a bona fide use. Nevertheless, Applicant’s books marketed under the mark were
at one-time best sellers on Amazon. Burch Dep. 57:9-11. Furthermore, Applicant’s media
appearances have also been to national audiences. Burch Dep. 102:7-13. Applicant’s social
                                                             
1

  Applicant’s Deposition Testimony is abbreviated to “Burch Dep.” in this Brief. 

4

 

 media presence is consistent with him noting that he is an expert on women’s health issues and
often sought after in the media. Burch Dep. 102:1-13.
II.

LIKELIHOOD OF CONFUSION
Applicant contends that there is no likelihood of confusion between Applicant’s Dr. Drai

and

design mark and Opposer’s Dr. Dre marks. DuPont listed thirteen factors to be

considered in determining whether there is a likelihood of confusion between marks under
Section 2(d) of the Trademark Act. The factors are:
1. The similarity or dissimilarity of the marks in their entirety as to appearance, sound,
connotation, and commercial impression.
2. The similarity or dissimilarity and nature of the goods and services . . . described in an
application or registration or in connection with which a prior mark is in use.
3. The similarity or dissimilarity of established, likely-to-continue trade channels.
4. The conditions under which and buyers to whom sales are made, i.e. “impulse” vs.
careful, sophisticated purchasing.
5. The fame of the prior mark
6. The number and nature of similar marks in use on similar goods.
7. The nature and extent of any actual confusion.
8. The length of time during and the conditions under which there has been concurrent
use without evidence of actual confusion.
9. The variety of goods on which a mark is or is not used.
10. The market interface between the applicant and the owner of a prior mark.
11. The extent to which applicant has a right to exclude others from use of its mark on its
goods.
12. The extent of potential confusion.
13. Any other established fact probative of the effect of use.
In determining whether there is a likelihood of confusion between marks, the Board need
only consider those DuPont factors where there is relevant evidence of record relating to the
5

 

 particular factor. Cunningham v. Laser Golf Corp., 55 USPQ2d 1842, 1845 (Fed. Cir. 2000).
Both parties have served discovery upon each other, and Applicant has had testimony taken by
deposition. Applicant believes it can provide more than sufficient evidence that there is no
likelihood of confusion between the marks at issue.
Opposer has argued that Applicant’s marks are nearly identical to the Dr. Dre mark, the
parties’ goods and services are related, the Dr. Dre mark is strong and entitled to a broad scope
of protection, the parties trade channels and customers overlap, and that Applicant chose its
trademark in bad faith. Applicant respectfully disagrees.
Factor  1:  Similarity of the Marks 
Applicant’s trademarks both use DR. DRAI; its word mark consists only of DR.

DRAI, and the design mark appears as

.

With regard to Applicant’s word mark, it differs from Opposer’s trademark as to
the words “DRE” and “DRAI”. Applicant has indicated that Drai refers to a shortened
version of his given name, Draion, a moniker used by family and friends. Burch Dep.
14:19-21. Opposer uses Dre as a shortened version of Andre. Opposer’s Notice of
Reliance, Exhibit DR192, DRE000617. See also Exhibit A, definition of Dre from
www.urbandictionary.com, which Applicant requests judicial notice. TBMP Section
1208.04 [Definitions found in slang dictionaries are also appropriate for judicial notice].
The shared use of “Dr.” is insignificant, particularly since the wording is routinely
used as a clever play on expertise, and, of course, since Applicant is actually an MD.
Applicant’s Notice of Reliance, Exhibit E. In fact, Opposer originally used Dr. J as his

6

 

 stage name, based on his favorite professional basketball player Julius Erving. Opposer’s
Notice of Reliance, Exhibit DR 192, DRE000617, Exhibit DR 180.
Opposer ultimately switched from DR. J. to DR. DRE, a stage name he shares
with another hip hop artist and celebrity (Applicant’s Notice of Reliance, Exhibits D, I,
and K). There is no evidence that Opposer conducted any search prior to using DR. J or
DR. DRE. Although Opposer inquired as to whether Applicant conducted a search to use
his own name and medical degree, Opposer himself provided no evidence that he
conducted any search regarding the availability for DR. J or DR DRE as a stage name.
Burch Dep. 133:12-15, Applicant’s Notice of Reliance, Exhibit C, Response to
Interrogatory No. 1.
In addition, Drai and Dre are notably different in that both words are shortened
versions of the parties’ dissimilar first names, Draion and Andre, respectively.
Consumers who encounter these marks in the marketplace are not likely to assume a
connection between Applicant and Opposer’s marks because Drai and Dre have different
connotations pertaining to each party’s first name. In re British Bulldog, Ltd., 224 USPQ
854, 855-56 (TTAB 1984) (“PLAYERS” for men’s underwear not likely to cause
confusion with “PLAYER’S” for shoes based on the different meanings between the
marks). In addition, although in practical effect, the parties pronounce DRAI and DRE
the same2, there is no correct pronunciation of a trademark that is not a recognized word,
and consumers may pronounce a mark differently than intended by the brand owner. In
re Belgrade Shoe Co., 411 F.2d 1352 (CCPA 1969). Stoncor Group, Inc. v. Specialty
Coatings, Inc., 111 USPQ2d 1649 (Fed. Cir. 2014).
                                                             
2

 Burch Dep. 154:20‐22‐155:1 

7

 

 In Stoncor, the Court stated that the Board erred in not giving credit to any
evidence as to how consumers would actually pronounce a non-recognized word.
Applicant has been unable to find any dictionary or slang definition of “Drai,” so his
abbreviated first name is uncommon and unlikely to be instantly recognized. In a case
like this, consumers will have no idea how Applicant pronounces his name, but they may
associate the “ai” ending as sounding like the words “samurai,” “Thai,” “bonsai,” or
“chai,” which all have the long-I sound (which just sounds like the letter “I” by itself).
See dictionary definitions of “samurai,” “Thai,” “bonsai,” and “chai”.3 Conversely,
Applicant has been unable to find any recognized words that end in “ai” which share the
long “a” sound of Opposer’s mark “dre”.
Furthermore, the parties’ given names are not spelled the same, and Applicant
specifically indicates that he spells his mark “d-r-a-i” every time he promotes his services
on the radio. Burch Dep. 153:17-22-154:1. Spelling differentiations can also serve to
dispel potential confusion among two marks with similar wording, even where the goods
are similar. Citigroup, Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 1350 (Fed.
Cir. 2011) (“This court has found mark dissimilarity when the words are spelled
differently.”); See also Worthington Foods, Inc. v. Kellogg Co., 732 F. Supp. 1417, 1440
(S.D. Ohio) (As for the appearance of the marks, the Court must consider the spelling of
the marks). In Citigroup, Inc. v. Capital City Bank Group, Inc., the Court held in part
that the differences in spelling between “CITI” and “CITY” were such that the marks

                                                             
3

 Applicant  asks  the  Board  to  take  judicial  notice  of  the  definitions  of  these  words  from  the  Merriam‐Webster 
Online Dictionary.  Exhibit B.  In re Dietrich, 91 USPQ2d 1622, 1631 n.15 (TTAB 2009). 

8

 

 were dissimilar in appearance, sound, connotation, and commercial impression. Id. at
1353.

With regard to

, the design element and stylized wording of Applicant's

mark create a significant visual impression from Opposer’s word only mark. In re
Computer Communications, Inc., 484 F.2d 1392 (C.C.P.A. 1973);[similar block designs
weigh consideration over word elements]; Envirotech Corp. v. National Service
Industries, Inc., 197 USPQ 292 (TTAB 1977) [sun design was the dominant element of
the marks]; In re Sloppy Joe’s International Inc., 43 USPQ2d 1350 (TTAB 1997) [in
composite of words “Sloppy Joe’s and large portrait of Ernest Hemingway, the design is
the dominant element over the words].
As in Envirotech, the designs in Applicant's logo mark are arbitrary and
distinctive. The pre-examination unit at the USPTO assigned five (5) design codes to
Applicant’s logo mark, which refer to a woman’s head, which is inside the letter ‘o” in
“doctor,” a seismograph, which is under the word “doctor,” and cross that makes up the
letter “T” in Applicant’s word “doctor”. Applicant’s Notice of Reliance, Exhibit B2.
Applicant's design mark also adds the words “OBGYN & MEDIA PERSONALITY,”
which helps to inform consumers that he is involved in obstetrics and gynecology,
services that would not be associated with Opposer.
In addition, Applicant’s design mark does not include the terms “Dr.” or “DRE.”
Rather, the Applicant’s mark consists of the stylized text "DOCTOR DRAI OBGYN &
MEDIA PERSONALITY". The "T" is a cross symbol. The second "O" in the term
"Doctor" features a side profile of a woman's face. The jagged line that appears between
the text "Doctor" and "Drai" represents a fetal heart rate tracing. The designs and
9

 

 stylized font in Applicant’s mark create an overall different commercial impression from
Opposer’s mark. In fact, as noted above, Opposer’s word mark and Applicant’s design
marks do not have any of the same words with the same appearance or spelling and
possibly sound. Applicant’s fonts, stylized terms and design create a different
commercial impression from the term, Dr. Dre.
Obviously, since Applicant uses unique design elements in its logo mark, it is
clear that Applicant is intending its trademark to be viewed. Applicant has provided a
significant amount of evidence regarding Internet promotion, namely, pages from
LinkedIn, Facebook, Pinterest, Instagram, Twitter, Amazon, and his website at
www.drdrai.com. Exhibits 2, 4, 7, 8, 9, and 11 attached to Burch Dep. In addition,
Applicant provides a printed media kit, and has sold several books online. All of these
materials are meant to be viewed. Exhibits 3, 13, 15, and 18 attached to Burch Dep. As
this information, promotion, and sale occurs online, consumers will be more likely to
view the goods at issue than hear the sound of them. See Interstellar Starship Servs., Ltd.
V. Epix, Inc., 184 F.3d 1107, n. 2 (9th Cir. 1999) [With regard to Internet promotion of
products, sound of trademarks is less impactful than appearance].
In instances like these, where the public will encounter the marks in written as
well as spoken form, it is essential to consider the marks' visual characteristics in
analyzing likelihood of confusion. Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972
(10th Cir. 2002) (finding that GENERIC VALUE PRODUCTS is not visually similar to
GENERIX, even though the marks begin with the same six letters); Planet Hollywood
(Region IV), Inc. v. Hollywood Casino Corp., 80 F. Supp. 2d 815 (N.D. Ill. 1999)
(holding that PLANET HOLLYWOOD and HOLLYWOOD CASINO do not look the

10

 

 same and “the differences in the words used are further emphasized by the use of
different fonts and type styles”); Worthington Foods, Inc. v. Kellogg Co., 732 F. Supp.
1417, 1440 (S.D. Ohio 1990) (“As for the appearance, or ‘sight’ of the marks, the Court
must consider both the spelling of the marks and the style of lettering or typeface.”).
No element of a mark should be ignored simply because it is less dominant or
would not have trademark significance if used alone. In re Electrolyte Laboratories, 929
F.2d 930 (Fed. Cir. 1990). In Electrolyte Laboratories, no confusion was found between
the marks K+ and Design and K+EFF (stylized) for dietary potassium supplements where
“K” is the chemical symbol for potassium, K+ is the symbol for the potassium ion, and
“EFF” is an abbreviation of “effervescent.” The Federal Circuit found the difference in
the associated design, a very simple box around K+, the addition of the letters “EFF,” a
descriptive abbreviation, and the stylization of the marks to be enough to avoid
confusion. Id. With regard to Applicant’s design mark, this case is much more
pronounced than Electrolyte Laboratories, where the visual impressions only differed
based on the addition of a box. In the marks at issue in this opposition, Applicant’s logo
mark adds distinctive visuals of a woman’s face, a seismograph, and a cross/plus sign
replacing the letter “t” in “doctor”.

Factors 2:  Similarity of the Goods and Services 
Nevertheless, to the extent that there are any similarities between Opposer and
Applicant’s marks, they are vastly outweighed by the significant differences in the
products and services identified in each parties’ applications and registrations. Real
Estate One, Inc. v. Real Estate 100 Enterprises Corporation, 212 USPQ 957, 959 (TTAB
1981) (the degree of similarity in the respective marks necessary to find likelihood of
11

 

 confusion is less when services of parties are same and are directly competitive than if
services were not same).
The parties’ goods and services couldn’t be any more unrelated. Applicant is a
gynecologist who provides medical services, along with various conducting speaking
engagements and writing literature concerning sexual issues. Burch Dep. 12:11-22, 13:1-22,
14:1-9, 45:10-19, 46:8-18, 56:3-6, 65:10-22, 66:1-15, 68:1-3, 79:6-8, 95:2-22, 96:1-13.
Applicant’s description of products and services specifically refer to health issues. Applicant’s
Notice of Reliance, Exhibits B1 and B2. Applicant notes that to be a gynecologist, a medical
license is needed, which consists of attending medical school, taking three sets of board exams,
and then passing oral and written certification exams. Burch Dep. 13:8-19.
Opposer is a record producer and hip-hop artist. He has no medical experience, and does
not hold himself to be any sort of health care practitioner. Notice of Reliance, Exhibit C,
Response to Interrogatory No. 17.
Opposer claims that Applicant’s Doctor Drai design mark for “educational and
entertainment services, namely, providing motivational and educational speakers” is related to
Opposer’s entertainment services because consumers would perceive that the provision of
motivational or educational speakers is related to Opposer’s musical composition and production
services due to the entertainment nature of both types of services. This broad relationship is not
enough, because, in some, albeit, non meaningful sense, all products and services are related.
Munsters Corp. v. Matsui Am., Inc., 730 F. Supp. 790, 798. (N.D. Ill. 1989)). See also Astra
Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F. 2d 1201 (1st Cir. 1983),
cited by the Trademark Trial and Appeal Board in In re Digirad Corporation, 45 USPQ 2d 1841
(TTAB 1998). [No confusion between identical marks ASTRA for pharmaceutical products and

12

 

 laboratory instruments where both products were sold to hospital laboratories. “Although the
two parties conduct business not only in the same fields, but also with some of the same
companies, the mere purchase of the goods and services of both parties by the same institution
does not, by itself, establish similarity of trade channels or overlap of customers.”]
Although both parties use the word “entertainment” in their respective recitation of
services, broad general market categories are not generally reliable tests of relatedness of
products or services. Bose v. QSC Audio, 293 F.3d 1367 (Fed. Cir. 2002). “Entertainment” is a
broad descriptor, and Applicant’s has limited the nature of these services to the medical and
healthcare fields. As to Applicant’s Class 44 services, Opposer has already conceded that he
does not provide medical services.
For example, in a related case, the Ninth Circuit in Newton v. Thomason, 22 F.3d 1455
(9th Cir. 1994) stated that there was no likelihood that producers of television series would
compete with a composer/singer of country/western music. The Board has similarly been
unwilling to find confusion based only on an “entertainment services” ID. In re Lil Fats, Inc.,
Serial No. 85/404,979 (TTAB August 8, 2013). [finding no confusion between COAST 2
COAST for entertainment services in the nature of music industry mixer networking events and
nightclub entertainments events in the nature of live competitions, and COAST TO COAST
BLUES BAND for entertainment services featuring live audiences broadcast over television,
satellite, internet, audio, and video media, and live performances by a musical band. “While, as
identified, registrant’s variety shows could encompass all types of musical and dance
entertainment, it does not clearly encompass a live competition or networking event.”]. In this,
case, Applicant does not provide any musical services where such a comparison would be

13

 

 necessary, and Opposer is not involved with any medical services. As Applicant stated during
deposition, “we have different ideal clients.” Burch Dep. 118:12-22, 119:1-22, 120:1-6.
If entertainment services are the alleged shared category, the fact that goods or services
are offered in the same general industry is not dispositive in an analysis of their similarity and
nature. See, e.g., Strange Music, Inc. v. Strange Music, Inc., 326 F.Supp. 2d 481, 491 (S.D.N.Y.
2004) [“[T]he fact that both parties’ products exist within the same [music] industry is not
enough” to establish a substantial likelihood of confusion]; Richards v. CNN, 15 F.Supp. 2d 683,
690 (E.D. Pa. 1998) [holding that “World Beat” reggae record label and “World Beat” broadbased musical information service are not substantially similar, even though “the marks are both
in the same general field of music”].
In Opposer’s field, Courts have held that the genre of music and target audience are
highly relevant in examining the similarity of products and services offered within the music
industry because music “[c]onsumers today are . . . much more likely to exercise a great deal of
care in ensuring, before they spend their money, that they have selected not only a particular
[musical] artist, but also a certain type of music that appeals to their individual tastes.” M2
Software, Inc. v. M2 Commc’ns, LLC, 281 F.Supp. 2d 1166 (C.D. Cal. 2003), Sunenblick v.
Harrell, 895 F.Supp. 616, 634 (S.D.N.Y. 1995); Strange Music, Inc. 326 F.Supp. 2d at 495;
Sullivan v. CBS Corp., 2002 U.S. Dist. LEXIS 6625, at **20-21, 23 (N.D. Ill. 2002); Q Div.
Records, LLC v. Q. Records, 2000 U.S. Dist. LEXIS 1773, at **13-14 (D. Mass. 2000) (citing
Mejia and Assocs. v. IBM Corp., 920 F.Supp. 540, 548 (S.D.N.Y. 1996)) (holding “alternative
rock” and “corporate” popular music are “dissimilar goods” and noting that “it is appropriate to
look at the particular sorts of records that are sold under the various marks”).

14

 

 In Sunenblick, 895 F.Supp. at 634, the Court of Appeals for the Second Circuit affirmed
that there was not a substantial likelihood of confusion between identical marks used on a jazz
record label and a hip-hop record label because “customers of musical records are necessarily
discriminatory between jazz and hip-hop and are not likely to suffer confusion.” Similarly, in M2
Software, Inc., 149 Fed. Appx. at 613–14, the Court of Appeals for the Ninth Circuit affirmed
that there was not a substantial likelihood of confusion between identical marks used on
Christian music products and music business services, because while the products were in the
“same industry,” they were “each targeted towards a certain niche of the music business, and the
niches have very little overlap.”
Where marks are used on goods and services existing within the same overarching
“entertainment industry,” such a characterization is overly broad and insufficient to establish
confusing similarity between the goods and services associated with the respective marks.
Strange Music, 326 F.Supp. 2d at 491; Richards, 15 F.Supp. 2d at 690.
In this case, Applicant is not even providing music, but the entertainment genres differ
specifically as hip hop music for Opposer, and medical and health information for Applicant.
There is no evidence supporting any type of relationship between products and services in these
fields. The coexistence of these marks show how there is no per se rule of confusion for
entertainment products and services. TMEP Section 1207.01(a)(iv).
The TTAB has stated that “we are not concerned with mere theoretical possibilities of
confusion, deception, or mistake or with de minimus situations but with the practicalities of the
commercial world, with which the trademark laws deal.” Witco Chem Co. v. Whitfield Chem
Co., 153 USPQ 412 (TTAB 1967). To support a finding of likelihood of confusion, there must
be more than a mere possibility of confusion or mere resemblance of the marks.” U.S.

15

 

 Conference of Catholic Bishops, 432 F. Supp. 2d 616 (E.D. Va. 2006). This requires a showing
that the alleged confusion is probable—that probability is greater than fifty percent. See id.; see
also Estee Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1510 (2d Cir. 1997); Westchester Media
v. PRL USA Holdings, Inc., 214 F.3d 658, 663-64 (5th Cir. 2000) (stating that likelihood of
confusion requires a probability of confusion); 4 McCarthy on Trademarks and Unfair
Competition § 23:3 (4th ed. 2012).
In interstate commerce, entertainment services can be as diverse as talent scouts, DJs, and
theater productions, along with hundreds of services identified as “entertainment” by the
USPTO. Applicant’s Notice of Reliance, Exhibits A, F, G, and L, and Exhibit C. Furthermore,
as evidenced by marks and brand names identified in Notice of Reliance, Exhibits A, F, G, and
L, these entertainment products and services coexist, even when they use DRE/DRAY/DRAI.
In Playmakers, LCC v. ESPN, Inc., 297 F. Supp. 2d 1277 (W.D. Wa. 2003), the plaintiff
alleged that there was a likelihood of confusion between its PLAY MAKERS mark for sports
agency services and defendants’ PLAYMAKERS mark for a television series. The fact that both
parties’ services related to sports in general was too remote to raise an inference of confusion.
See also Richards v. Cable News Network, Inc., 15 F. Supp. 2d 683, 690 (E.D. Pa. 1998) [“While
[plaintiff’s use of WORLD BEAT as a record label and defendant’s use of WORLD BEAT in
connection with a music news program] are thus both in the same general field of music, they are
not sufficiently similar to create a likelihood of confusion.”]
Applicant is providing medical and healthcare services in the nature of information,
recordings, and of course, treatment. Notice of Reliance, Exhibit E. Burch Dep. 41:6-12.
Opposer is a musician. Opposer cannot provide evidence showing any overlap between the
parties’ goods and services. The differences in the products and services strongly favors

16

 

 Applicant. Simon Says Enterprises, Inc. v. Milton Bradley Company, 522 F. Supp. 986 (SDNY
1981) [No confusion between SIMON for entertainment services and electronic games. “The
products of each party are obviously different.”] Simon Says, at 988.
Factor  3:   Channels of Trade 
If goods and services are not related or marketed in such a way that they would be
encountered by the same persons in situations that would create the incorrect assumption that
they originate from the same source, then, even if the marks are identical, confusion is not likely.
Local Trademarks, Inc. v. Handy Boys Inc., 16 USPQ2d 1156 (TTAB 1990) (LITTLE
PLUMBER for liquid drain opener held not confusingly similar to LITTLE PLUMBER and
design for advertising services, namely the formulation and preparation of advertising copy and
literature in the plumbing field); Quartz Radiation Corp. v. Comm/Scope Co., 1 USPQ2d 1668
(TTAB 1986) (QR for coaxial cable held not confusingly similar to QR for various products
(e.g., lamps, tubes) related to the photocopying field).
There is no evidence in the record demonstrating that the channels of trade for a
gynecologist and public speaker in the field of gynecology overlaps at any time with
headphones, musical recordings, and record producing services. An individual seeking
information on gynecological matters would not mistakenly try to contact a hip-hop artist
because although Opposer uses DR. DRE as a moniker, he is not a doctor. Burch Dep. 99:13-22.
Applicant markets his services through social media which use his name with the “drai”
spelling, and in most instances, add “obgyn”, (this includes youtube.com/user/drdraiobgn,
twitter.com/drdraiobgyn, and google.com/+drdraiobgyn), Burch Dep. 31:2-20, 32:1-13, Exhibits
2-9, 11 attached to Burch Dep. Opposer does not market his services to those seeking medical
advice, and there is no likelihood that the parties’ vastly dissimilar products and services will

17

 

 travel in the same channels of trade. Even if the goods and services travel through the same
channels of trade, the overlap in Applicant’s patients and Opposer’s purchasers is minimal.
Accordingly, confusion is not likely where services are sold to different customers
through different channels of trade. In Dynamics Research Corp. v. Langenau Manufacturing
Co., 704 F.2d 1575, 1576 (Fed. Cir. 1983), the court affirmed dismissal of an opposition
proceeding where the parties sold to customers in different industries but the applicant advertised
in a magazine read by customers in both industries: “the customers of the respective products do
not appear to be the same and any overlap in purchasers or customers is de minimis . . . . [In]
those instances where the same customers might be exposed to both applicant's and opposer's
goods sold under the identical mark, there would not be any likelihood of confusion as to the
source of the goods in view of the nature of the goods involved and the nature of the purchasers
who would be responsible for acquisition of the products. . . . [The] goods of the respective
parties are sufficiently distinct that their marketing under identical marks would not be likely to
cause confusion, mistake, or to deceive.”
Consumers seeking health and medical information and entertainment in those fields are
unlikely to seek that information from Opposer. Furthermore, although it seems obvious,
medical information and musical recordings have been found to travel in different channels of
trade. In M2 Software, Inc. v. M2 Communications, Inc., Opposition No. 91/158,118; 2005 WL
182550 (TTAB July 21, 2005), the Board indicated that information relating to health,
pharmaceuticals and medicine, are not related to the film and music industry, even if both
services were provided via CD-ROM, stating:
•

“it is clear that applicant’s CD-ROMs in the field of health, pharmaceutical,
and medicine are not included within opposer’s identification of goods for
software in the film and music industry”;

18

 

 •

“(Opposer) has not established that CD-ROMs with information in the
medical/healthcare/pharmaceutical field are within the natural zone of
expansion for a producer of computer products for the music and film fields”;
and

•

“Opposer has not shown that it operates in applicant’s
medical/healthcare/pharmaceutical field. Based on the record, we cannot
conclude that applicant’s field is within opposer’s natural scope of
expansion.”

In affirming the Board’s decision, the Federal Circuit noted that the Board should ground
its determination of relatedness for products and services based on the fields for which the goods
are created, instead of the way they are delivered to the public. M2 Software, Inc. v. M2
Communications, Inc., 450 F. 3d. 1378 (Fed. Cir. 2006). Similarly, music and health
information are not related fields, even if the method of delivery could be classified as
“entertainment” by the USPTO.
Opposer has not provided any evidence that consumers would believe that Applicant’s
services are licensed from Opposer. There is no evidence that Opposer has even been associated
with providing goods or services in the medical or health industry, and it is unlikely that he
would expand his trade to provide these services. Furthermore, there is no evidence that
Opposer has, or intends to, attend medical school, take Board exams, or seek OB/GYN
certification as Applicant has done. Opposer has admitted that he does not provide any products
or services in the medical industry.
Accordingly, there is no evidence of overlap in channels of trade, and neither party is
going to communicate their specific messages regarding music and medical information in the
same manner.

19

 

 Factor 4:   Sophistication of Purchasers 
When purchasing healthcare services, even ordinary consumers are likely to exercise
greater care and will know with whom they are dealing. Electronic Design & Sales v. Electronic
Data Systems, 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992). Carefirst of Maryland,
Inc. v. FirstHealth of the Carolinas, Inc., 77 U.S.P.Q.2d 1492 (T.T.A.B. 2005) “it is common
knowledge that even ordinary consumers tend to exercise some sophistication when it comes to
decisions relating to healthcare and healthcare insurance services”). In this case, Applicant is a
well regarded practitioner of gynecological medicine, and provides healthcare services in that
field. Applicant’s Notice of Reliance, Exhibit E; Burch Dep. 16:15-21, 17:6-11.
Applicant is also in demand for a number of speaking engagements, as described in his
recitation of services in Class 41 [including, but not limited to webinars, seminars, conferences,
and motivational speaking]. Applicant’s Notice of Reliance, Exhibit B2; Burch Dep. 104:18-22,
105:1-2. Applicant indicated that his typical fee for speaking engagements is $5,000.00, and his
medical services range from $1,000.00 to $5,000.00. Burch Dep. 131:17-21; 132:9-13. Clearly,
consumers are not paying thousands of dollars for medical services and hiring a public speaker
as an impulse buy. Au-Tomotive Gold, Inc. v. Volkswagen of Am, Inc., 457 F.3d 1062, 1076 (9th
Cir. 2006) [“Confusion is less likely where buyers exercise care and precision in their purchases,
such as for expensive or sophisticated items”]; See also Astra Pharmaceutical Products, Inc. v.
Beckman Instruments, Inc., 718 F. 2d 1201 (1st Cir. 1983), cited in In re Digirad Corporation,
45 USPQ 2d 1841 (TTAB 1998).
For example, even with purchases that would cost hundreds of dollars, and not thousands,
the Trademark Trial and Appeal Board has stated that where customers spend this amount of
money, they are likely to exercise some degree of care in making their purchases, and will be

20

 

 considered relatively careful and discriminating. Taylor Made Golf Company, Inc. v. R & M
Golf Company dba Triumph Golf Company, (TTAB May 6, 1998).
In this case, Applicant’s speaking fees are in the thousands of dollars, and he is asked to
present his expertise at conferences for fellow medical professionals. Burch Dep. 66:16-22,
67:1-22, 68:1-10. Where the relevant buyer class is composed solely of professionals such as
doctors, it is reasonable to set a higher standard of care than exists for consumers, and these
types of meticulous purchasers may be more knowledgeable and will not be confused.
McCarthy on Trademarks and Unfair Competition, Section 23:100. Virgin Enters. Ltd. V.
Nawab, 335 F.3d 141 (2d. Cir. 2003) [Where purchasers are highly trained professionals, they
know the market and are less likely than untrained consumers to be misled or confused];
Homeowners Group, Inc. v. Home Marketing Specialists, Inc., 931 F.3d 1100, 1111 (6th Cir.
1991) [“[W]hen services are expensive or unusual, the buyer can be expected to exercise greater
care in her purchases. When services are sold to such buyers, other things being equal, there is
less likelihood of confusion.”]. 
With regard to Opposer’s music products and services, Courts have weighed on the
deliberate nature of music buyers, stating that music “[c]onsumers today are . . . much more
likely to exercise a great deal of care in ensuring, before they spend their money, that they have
selected not only a particular [musical] artist, but also a certain type of music that appeals to their
individual tastes.” M2 Software, Inc. v. M2 Commc’ns, LLC, 281 F.Supp. 2d 1166 (C.D. Cal.
2003), aff’d M2 Software, Inc. v. M2 Commc’ns, LLC, 149 Fed. Appx. 612,613–14 (9th Cir.
2005) (unpub).
In this case, the Board doesn’t have to compare musical styles, because Applicant is not
even a musician. Music consumers will have an idea of what they want to listen to; they are

21

 

 unlikely to purchase a recording of medical information pertaining to gynecology when they are
in the mood to purchase hip hop and rap music produced and performed by Opposer.

Factor  5:  Fame or Strength of Mark 
It is Opposer’s duty to clearly prove that his mark is famous, and he has not done so.
Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901 (TTAB 2007).
In determining likelihood of confusion, the factor of fame alone is not sufficient to
establish likelihood of confusion. If that were the case, having a famous mark would entitle the
owner to a right in gross, and that is against the principles of trademark law. See University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 703 F.2d 1372,217 USPQ 505,507
(Fed. Cir. 1983), which states:
"The fame of the [plaintiff s] name is insufficient in itself to establish
likelihood of confusion under § 2(d). "Likely * * * to cause confusion"
means more than the likelihood that the public will recall a famous mark
on seeing the same mark used by another. It must also be established that
there is a reasonable basis for the public to attribute the particular product
or service of another to the source of the goods or services associated
with the famous mark. To hold otherwise would result in recognizing a
right in gross, which is contrary to principles of trademark law and to
concepts embodied in 15 USC § 1052(d)."
Opposer is attempting to use his notoriety in hip hop to support a finding of confusion in
a wholly unrelated field. As discussed in Notre Dame, it must be established that there is a
reasonable basis for the public to attribute the services of another to the source of services
associated with the famous mark. There could be no reasonable basis for Opposer to establish
any possibility of attribution with an MD providing medical and speaking services in the field of
gynecology.

22

 

 The TTAB has been very clear that individuals with notoriety in the music field do not
necessarily have fame outside of that field. In Ate My Heart, Inc. v. Adam Swan, (TTAB May
24, 2013), the Board determined that although Lady Gaga may be famous as to recordings and
entertainment services, without information pertaining to fame specifically with the Applicant’s
products, it could not find fame in other fields (which, in that case, was clothing, a much closer
fit to a performer than are medical and speaking services to gynecology). As the Board stated in
Ate My Heart, “because of the extreme deference that we accord a famous mark in terms of the
wide latitude of legal protection it receives, and the dominant role fame plays in the likelihood of
confusion analysis, it is the duty of the party asserting that its mark is famous to clearly prove it.
Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). Cf.
UMG Recordings, Inc. v. Mattel, Inc. , 100 USPQ2d 1868, 1883 (TTAB 2011) (finding the mark
MOTOWN famous as to musical recordings and entertainment, but not so with respect to nonmusic related collateral goods in connection with which the mark is licensed and used).”
Furthermore, although Opposer has provided evidence of press mentions and record
sales, there is no context as to how these sales relate to medical services, and speaking
engagements and transmission of medical information. Evidence of fame is of no probative
value if it lacks proper context. Carefirst of Maryland, Inc., supra; Bose Corp. v. QSC Audio
Products, Inc., 63 USPQ 1303, 1309 (Fed. Cir. 2002).
In this case, although Opposer can show evidence of record sales, Opposer’s wealth, and
his alleged renown in the hip hop field, there is no evidence indicating that he has sufficient cross
over fame to offset the differences in the services provided by both parties. Bose, supra [raw
numbers of revenues and advertising expenses may be misleading and are insufficient without
proper context]. Christian Broadcasting Network Inc. v. ABS-CBN International, 84 USPQ2d

23

 

 1560, 1572 (TTAB 2007) [finding the dissimilarities between calling card services and
broadcasting services more than sufficient to offset the fame of Petitioner’s CBN mark].
 
Factor  6:   Number and Nature of Similar Marks on Similar Goods 
Applicant has introduced evidence that Opposer is not the only Doctor Dre in his own
field. Applicant’s Notice of Reliance, Exhibits D, I, and K.
Applicant is a gynecologist, so there is no similarity with regard to his services and
Opposer’s music production services. However, Applicant notes that there are co-existing
registrations for DRA for entertainment in the nature of theater productions, DRAY for recording
apparatuses, DRA for stereos and headphones, as well as the nightclub DRAI, the talent scout
using THE DRAY WAY, and the DJ, SUPER DRE. Applicant’s Notice of Reliance Exhibits A,
F, G, H, L, and M.4
Presumably, Doctor Dre could perform at DRAI nightclub, just as the evidence indicates
that hip hop artists Big Sean, Tip “T.I.” Harris, and Chris Brown have done so in the past.
Notice of Reliance, Exhibit F [“Hip-hop heads can rejoice, because Big Sean will perform…”]
Opposer also owns registrations for headphones, yet there are coexisting registrations for DRA
for stereos and headphones, and DRAY for recording apparatuses, both of which potentially
sound like Opposer’s mark, and share two initial consonants and a vowel. Applicant’s Notice of
Reliance, Exhibit A. Furthermore, Opposer only provides musical products and services, and is
                                                             
4

 Information  pertaining  to  DRAI’S  HOLLYWOOD  is  attached  to  Applicant’s  Notice  of  Reliance  Exhibit  A  as 
Registration  No.  3,836,211,  but  was  inadvertently  left  off  of  the  list  of  registrations  in  the  actual  notice.  
Registration No. 3,660,562 for DRAI’s, covering night clubs is identified in the Registration for DRAI’S HOLLYWOOD 
as  being  owned  by  that  registrant,  but  the  information  pertaining  to  DRAI’S  was  also  inadvertently  omitted.  
Opposer has filed a Motion to Amend the Notice of Reliance to include this information, but at a minimum, there is 
significant common law use for the DRAI nightclub attached to the original Notice of Reliance. 

24

 

 limited to that field; there is no room for expansion to some possible complementary products,
such as food and toys, as there are also DRE and DREA registrations for those products. Notice
of Reliance, Exhibit A. Clearly, Opposer’s trademark reach does not include medical products,
medical services, and medical information.
Even for performers, Opposer isn’t the only individual who has attempted to use
“Dr./doctor” as a clever stage name, as he chose his own name from professional basketball
player, Julius Erving aka Doctor J. In Applicant’s field, well known physicians and medical
celebrities also use “Dr.” with a first name, such as Dr. Travis, Dr. Rachael, Dr. Jenn, and Dr.
Phil. “We all use our first names. The reason why is because it makes you more personable
with the audience.” Burch Dep. 126:16-22, 127:1-3.
By combining the title “Dr” with a shortened version of the first name Andre, Opposer is
using two common elements that are inherently weak. “Dr.” has been previously used by
another Dr. Dre, as well as Opposer’s original namesake, Dr. J, and “Dre” is a shortened version
of Andre (or Andrea Wallace, aka SuperDre). Applicant’s Notice of Reliance, Exhibit L. These
third-party uses are clearly important in showing the relative weakness of the words “Dr.” and
“Dre” in trademarks in related and nearly identical fields. See Carefirst of Maryland. Inc. v. First
Care. P.C., 434 F.3d 263 (4th Cir. 2006), at 270 ("'The frequency of prior use of [a mark's text]
in other marks, particularly in the same field of merchandise or service,' illustrates the mark's
lack of conceptual strength.") (citation omitted); Time, Inc. v. Petersen Publishing Co., 173F.3d
113, 118 (2d Cir. 1999)("The use of part or all of the mark by third parties weakens its overall
strength."); Data Concepts, Inc. v. Digital Consulting, Inc., 150F.3d 620, 625 (6th Cir. 1988)
("[A] mark is weakened outside of the context in which it is used if there is third-party use of the
mark.").
25

 

 Factor  7 and  8: Actual Confusion 
There is no evidence submitted by either party that there has been any actual confusion,
even though Opposer claims first use of the marks at issue since 1981, and Applicant indicated
that he has used DR. DRAI ever since he became a doctor. Burch Dep. 14:22, 15:1-2. The
parties have coexisted for at approximately ten (10) years without any instances of actual
confusion5; this period of time without actual confusion is significant. CBN, at 29. As the Board
stated in CBN, a 2007 case, “where, as here, there has been considerable activity by the parties
under their respective marks over a long period of time (i.e., since 1994) without any reported
instances of confusion, one may infer that simultaneous use of the marks is not likely to cause
confusion. Haveg Industries, Incorporated v. Shell Oil Company, 199 USPQ 618, 626 (TTAB
1978). Although petitioner argues that proof of actual confusion is not necessary to show that
there is a likelihood of confusion, its absence in this case tends to reinforce the lack of a
likelihood of confusion.”
Factor 9: Variety of Goods on which a Mark is Used 
Opposer’s trademark registrations cover headsets, headphones, t-shirts, posters, musical
composition, recordings, and performances. He owns no registrations, and does not use his stage
name, in connection with medical services. Opposer’s marks are used for music recordings and
live performances, and the apparel and posters provided under his marks are promotional
materials, souvenirs, and common collateral products. Turner Entertainment Co. v. Nelson, 38
USPQ2d 1942, 1945 (TTAB 1996) [“It is common knowledge, and in the present case,
undisputed that video games, t-shirts, beach towels, caps and other logo-imprinted products are
                                                             
5

 Applicant received his medical degree in 2007.  Exhibit 2 to Burch Dep. 

26

 

 used as promotional items for a diverse range of goods and services”]. Conversely, there is no
evidence or case law to support a relationship between music performances and recordings and
gynecological information and medical services. In fact, Opposer has not submitted any
evidence that he uses Dr. Dre for any products or services outside of the music industry; his own
services are limited to music, which doesn’t even include night club services, as contemplated by
the DRAI’S registrations and common law use, audio/visual products under the registrations for
DRA and DRAY, as well as theater productions under DRA.
Factor 10: Market Interface between the Applicant and the Opposer 
There has been no market interface between Opposer and Applicant. There is no
evidence that the parties have entered into any agreements concerning use of these marks.
Applicant has no relationship with Opposer.
Factor 11: Applicant 's Right to Exclude Others 
Applicant does have the right to exclude others from using Dr. Drai for medical services,
and entertainment services pertaining to medical information. There are no other marks using
DR. DRAI for related services, which includes the word mark and the logo mark. Applicant has
indicated that he is well known in his specific field of gynecology and also as a sexpert. Burch
Dep. 46:13-18. In addition, Applicant has stated that he is the go-to media expert on women’s
health and transhealth, and that he is one of six to seven doctors in America who are called on by
the media to discuss these issues. Burch Dep. 45:20-22, 46:1-12. Applicant indicated that he is
not aware of any OB-GYN’s who have sold more books than he is, and that he has been the only
celebrity doctor at an alumni faculty event. Burch Dep. 186:1-22, 186:1-22, 187:1-6., Exhibit 17
attached to Burch Dep. Applicant has been an Amazon Best Seller, and has extensively

27

 

 promoted himself on multiple social media outlets. Burch Dep. 64:11-22, 65:1-9. See also
Applicant’s Notice of Reliance, Exhibit O for definition of Amazon Best Seller. Applicant has
established his own separable reputation as a women’s health expert and media personality.
Burch Dep. 16:2-22, 17:6-11 [President of the National Osteopathic Medical Association, along
with various other medical board memberships], 18:6-9 [Serving as one of approximately 20
doctors on the board of the American College of Osteopathic Obstetricians & Gynecologists],
55:9-22, 56:1-7 [One of two experts selected as sexual health advisors for the company
Astroglide], pp. 65-88 [Discussing a variety of promotional efforts and media appearances]. See
also Applicant’s Notice of Reliance Exhibit E identifying multiple references pertaining to
Applicant in his field.
While there are “Dre,” “Drai,” “Dray” and “Dra” marks in multiple fields, Applicant is
the only DR. DRAI seeking to register a word and logo mark in medicine and for medical
information. Given the unique nature of Applicant’s abilities and his advanced degree, there
would be very few others who could provide Applicant’s products and services. Conversely, not
only can someone provide Opposer’s services, someone already has under Opposer’s own name.
Applicant’s Notice of Reliance, s Exhibits D, I, and K.

Factors  12  and  13·  Extent  of  Potential  Confusion  and  any  Other 
Established Facts 
 
Applicant contends that there is no potential for confusion in this case. Applicant has no
intent to be associated with Opposer, stating that he would not want to be associated with
Opposer’s brands. Burch Dep. 181:5-8, 182:14-15.

28

 

 Opposer believes that Applicant did not conduct a trademark search, so by default, he engaged in
bad faith. Without focusing on any other factors regarding intent, this argument, as is the case
law cited by Opposer, is incomplete.
Opposer cited International Star Class Yacht Racing Association v. Tommy Hilfiger
U.S.A., Inc., 80 F.3d 749, 38 USPQ2d 1369 (2d Cir. 1996), where the Court suggested that with
other factors, failure to conduct a search could support a bad faith finding. However, after
remand, and a second appeal on the same issue, the Court affirmed the District Court’s holding
that there was no bad faith.

International Star Class Yacht Racing Association v. Tommy

Hilfiger U.S.A., Inc., 205 F.3d 1233 (2d. Cir. 2000). The Second Circuit backed up that opinion
in Star Indus. v. Bacardi & Co. , 412 F.3d 373 (2d Cir. 2005), indicating that failure to search, or
reliance on inadequate search, is not evidence of bad faith unless motivated by intent to cause
confusion or exploit a senior user’s good will or reputation). The Third Circuit agreed in
SecuraComm Consulting v. Securacom , 166 F.3d 182 (3d Cir. 1999) (failure to search, without
more, does not establish “willful ignorance akin to willful infringement”).

III. 

FALSE SUGGESTION OF CONNECTION 

 
Under a Section 2(a) false association claim, registration must be denied if an application
falsely suggests a connection, disparages or brings into contempt or disrepute a name of a natural
person or institution. 15 USC Section 1052(a).
Section 2(a) cases use the four factor test set forth in University of Notre Dame du Lac v.
J.C. Gourmet Food Imports Co., 703 F.2d 1372 (Fed. Cir. 1983) as follows:
i. Is the mark the same as, or a close approximation of, the name or identity
previously used by another person or institution;
29

 

 ii. Would the mark be recognized as such, in that it points uniquely and
unmistakably to that person or institution;
iii. Is the person or institution whose name is reproduced by the mark connected
with the activities promoted by the trademark applicant under the mark; AND
iv. Is the fame or reputation of the person or institution such that, when the mark
is used with the applicant’s goods or services, a connection with the person or
institution would be presumed?
Several of these factors have already been discussed with regard to likelihood of
confusion.

To the extent that Opposer is intending to use a 2(a) claim to enlarge his

rights where the likelihood of confusion analysis fails him, “a name cannot be protected
in gross under Sec. 2(a) any more than under 2(d).” Notre Dame, at 1376.
 
1.  Applicant’s marks are not the same as, or close approximations of, the 
name or identity previously used by Opposer 
 
“[T]he similarity required for a ‘close approximation’ is akin to that required for a
likelihood of confusion under § 2(d) and is more than merely ‘intended to refer’ or ‘intended to
evoke.’” Bd. of Trs. of Univ. of Ala. v. Pitts, 107 USPQ2d 2001, 2027. Under Section 2(a),
Applicant’s marks must do more than simply bring Opposer’s persona to mind. See also Boston
Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581 (TTAB 2008) (test for false suggestion
of a connection more stringent than in disparagement, where reference to persona suffices); Bd.
of Trs. of Univ. of Ala. v. Pitts, at 2027-28 (recognizing that the determination of whether a
defendant’s mark is a close approximation of a plaintiff’s identity is “a stringent one, requiring a
greater degree of similarity between the two designations.”
As discussed supra, the marks at issue are not similar as to sound, appearance, meaning
and commercial impression, including the added visual elements in Applicant’s logo mark.
Regarding the word mark, although the marks at issue include the term Dr., the terms DRAI and

30

 

 DRE do not have the same appearance, as the “AI” and “E” are different. Furthermore, the terms
DRAI and DRE do not have the same meaning, as DRAI refers to the nickname of DRAION and
DRE is short for ANDRE. The appearances and meanings of the marks provide a different

commercial impression. Applicant’s design mark,

, creates a dissimilar appearance,

meaning and commercial impression. The marks differ in appearance. Applicant’s mark does
not include the terms “Dr.” or “DRE.” Rather, the Applicant’s mark consists of the stylized text
"DOCTOR DRAI OBGYN & MEDIA PERSONALITY". The "T" is a cross symbol. The second
"O" in the term "Doctor" features a side profile of a woman's face. The jagged line that appears
between the text "Doctor" and "Drai" represents a fetal heart rate tracing. The designs and
stylized font in Applicant’s mark create an overall different commercial impression from
Opposer’s mark. The stylized design must be given its appropriate weight. In re Computer
Communications, Inc., 484 F.2d 1392 (C.C.P.A. 1973);Envirotech Corp. v. National Service
Industries, Inc., 197 USPQ 292 (TTAB 1977) Both Dr. and Doctor have the same meaning;
however, the terms DRAI OBGYN & MEDIA PERSONALITY do not have the same meaning
as DRE, in Opposer’s marks.
With regard to the more stringent requirement regarding degree of similarity between the
marks at issue, the dissimilar spelling of “drai” and “dre” is that much more significant. The
phonetic rules discussed for “ai” endings (Exhibit B) mandate different pronunciations, The
commercial impressions of “drai” and “dre” are changed based on the last letters in each mark
and when viewed as a whole, it is apparent that the marks identify different individuals that
provide non-related services. Drai and Dre refer to separate given names. Rolex Watch U.S.A.,
Inc. v. AFP Imaging Corporation, 101 USPQ2d 1188 (TTAB 2011) [Regarding ROLL-X and

31

 

 ROLEX dilution claim, the marks are spelled different, which creates a dissimilar appearance,
meaning and commercial impression].

Applicant respectfully contends that the marks Dr. Drai and

are not in close

approximation, or the same, as the name previously used by another person.
2. DR. DRE does not point uniquely and unmistakably to Opposer 
Opposer’s claim also fails under the second prong of the false suggestion test, in that
Opposer has failed to show that the mark DR. DRE points uniquely to Andre Young. Opposer’s
evidence describes the individual, Dr. Dre’s career, but Opposer does not provide evidence
regarding the public’s perception of the trademark, Dr. Dre. Under concepts of the protection of
one’s identity, “... the initial and critical requirement is that the name (or an equivalent thereof)
claimed to be appropriated by another must be unmistakably associated with a particular
personality or ‘persona.’” Univ. of Notre Dame, 217 USPQ at 509. See also In re Kayser-Roth
Corp., 29 USPQ2d 1379 (TTAB 1993) (registration of mark “Olympic Champion” for clothing
did not point uniquely and unmistakably to U.S. Olympic Committee); Ritz Hotel Ltd. v. Ritz
Closet Seat Corp, 17 USPQ2d 1466, 1471 (TTAB 1990) (RIT-Z for toilet seats did not point
uniquely to Opposer); Calvin Klein Indus. Inc. v. Calvins Pharm. Inc., 8 USPQ2d 1269, 1272
(TTAB 1988) (evidence failed to establish that “Calvins” or “Calvin” was associated solely with
opposer); NASA v. Bully Hill Vineyards, Inc. , 3 USPQ2d 1671, 1676 (TTAB 1987) (the term
SPACE SHUTTLE did not point uniquely and unmistakably to NASA). The protection afforded
a name or its equivalent under Section 2(a) is acquired only when the name claimed to be
appropriated points “uniquely and unmistakably” to the plaintiff’s “persona,” that is the personal
or trade identity of the claimant. Buffett v. Chi-Chi, 226 USPQ at 429.

32

 

 Applicant’s evidence establishes that other entities use “Doctor,” “Dre/Drai,” and even
“Doctor Dre”. These third-party references are relevant in showing that the public has been
exposed to “Dre,” “Dra,” “Drai,” and even another music performer named Doctor Dre.
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc.,107 USPQ2d 1750, 1758 (TTAB 2013); In
re Bed & Breakfast Registry , 791 F.2d 157, 160, 229 USPQ 818, 819 (Fed. Cir. 1986)
(competent sources to show the relevant purchasing public’s understanding of a term may
include trade journals, newspapers, and other publications). Applicant’s evidence further shows
the public has been exposed to a Doctor Dre in the same hip hop music industry as Dr. Dre.
Doctor Dre co-hosts of MTV’s hip hop music specialty show, Yo! MTV Raps. Applicant’s
Notice of Reliance, Exhibits D, I, and K.
In addition, as for the second element of the Federal Circuit’s false association factors, it
is important to ascertain Applicant's intent when it selected the disputed mark. Notre Dame, at
509. Not only had Applicant not heard of Opposer until he purchased Opposer’s headphones
after his graduation between 2011 and 2015, but Applicant chose his own trademark based on a
combination of his given name and degree. Burch Dep., 174:6-18, 113:15-18, 114:3-9.
Furthermore, Applicant believes that Opposer’s reputation with women, whether deserved or not,
was something he did not want to be associated with. Burch Dep. 115:7-12, 181:7-10. Clearly,
there has been no intent for Applicant to associate himself with Opposer.  
Opposer has provided no evidence indicating that Applicant intended to create an
association with Dr. Dre. In fact, it’s clear that Applicant has no interest in being associated with
Opposer. Applicant indicated in his testimony deposition that he found out about Opposer when
he purchased Opposer’s branded headphones because he was a black man in business. Burch
Dep. 114: 10-17. Applicant stated that he hadn’t researched who Opposer was but that he had

33

 

 heard that “this guy is known for misogyny and homophobic things…and being part of the
LGBT community…I said….I cannot be associated with anyone that has any kind of
misogynistic speech because it’s a bad reflection on me as a doctor…I’m kind of embarrassed
about it.” Buch Dep. 115:4-12, 127:6-8. See also Applicant’s Notice of Reliance, Exhibit N,
subhead Violence against women.
During Applicant’s testimony deposition, Opposer’s counsel asked Applicant how and
when he had heard about Opposer for the first time. Applicant stated that he heard about
Opposer after he had purchased Opposer’s headphones at some point between 2011 and 2015,
but was not aware of Opposer at any point before that. “I’m country born, Southern Mississippi,
and we weren’t allowed to, you know, listen to certain things or watch TV.” Burch Dep. 174:122, 175:1-3. As Applicant indicated that his trademark comes from his family and childhood
nickname “Drai,” and that he had to be told who Opposer was, Applicant’s lack of knowledge of
Opposer, much less intent, heavily favors Applicant as to this factor.

Furthermore, Applicant uses its Dr. Drai and

marks in conditions and

circumstances that preclude any possible recognition by consumers of such close approximation.
Applicant’s marks use the terms Dr. and DOCTOR because Applicant is a medical doctor.
Applicant’s marks are used for goods and services all in the medical or health industry.
There is no evidence that Dr. Dre was ever associated with providing goods or services in
the medical or health industry, nor is it likely that he would expand his goods and services to
provide these services. Furthermore, it is not likely that he would ever be able to provide the
goods and services provided by Applicant as these services require the advanced degree,
certification, and experience needed to provide medical services to hold himself out as a doctor,

34

 

 or medical doctor (MD). Opposer has admitted that he does not provide any of Applicant’s

services. The marks, Dr. Drai and

do not point uniquely to oppose, as required.

3. Opposer is not associated with Applicant’s services 
Opposer has not provided any evidence that he provides medical services or any services
that could possibly be considered similar to gynecological services, whether it is in practice or as
entertainment services in that field.
4.  Opposer’s  name  and  identity  is  not  of  sufficient  fame  or  reputation  to 
lead to a presumed connection with Applicant’s medical services 
 
Applicant has discussed the limited scope of Opposer’s fame in a likelihood of confusion
context. With regard to false suggestion of a connection, the fourth prong of the Notre Dame test
mandates that when Applicant provides his services, consumers would believe that he is
connected to Opposer. Opposer is not a medical doctor (MD), and there is no indication that
anyone would believe that Opposer provides medical services.
Furthermore, Applicant is not a musician. Burch Dep. 118:12-22, 119:1-19. As he would
be treating patients and speaking about gynecological issues, consumers would not believe he
would be connected to a hip-hop artist. In evaluating fame for the performer Lady Gaga, the
Board indicated that despite evidence showing fame as a performer, the evidence of record did
not translate directly to fame for apparel. The evidence in that Opposition included survey data,
music recording and concert ticket sales, social media presence, and industry awards and media
recognition. Ate My Heart, at 19-21. The Board noted that even if consumers identified Lady
Gaga as a person who makes jeans, survey responses reflected assumptions based on the name
recognition of the performer, rather than brand recognition of the mark for clothing. Ate My
Heart, at 19.
35

 

 Similarly, in this case, even if Opposer is recognized as a hip-hop performer and
producer, the evidence does not support that Opposer is famous for medical services, or public
speaking and entertainment pertaining to health and medical issues. Presumably, consumers
would not believe that when Applicant uses its marks for its medical services, or public speaking
and entertainment pertaining to health and medical issues, that Applicant is connected in any
way to Opposer.

************************************************************
When Applicant’s marks are used in connection with medical products and services,
including entertainment services all related to medical services, consumers will not recognize
Applicant’s marks are referring to Dr. Dre. Opposer believes that notoriety is equivalent to
trademark fame, and that a broad claim of trademark fame would allow Andre Young to claim
trademark rights in gross, a theory that is without basis in trademark law, and has remained
without support for about a century. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90
(1918). Although Opposer notes that licensing is widespread and the names and likenesses of
celebrities are frequently used in connection with the advertising and sales of goods and services,
Opposer has not provided any evidence of celebrities licensing their names and likenesses for
goods and services that require training and specific certifications, as required by Applicant’s
medical services. Simply put, it is not likely that consumers will recognize Applicant’s Dr.
Drai’s marks as referring to Dr. Dre because Dr. Dre is not a medical doctor nor is he qualified to
provide any type of medical services or sell products specifically in the medical or healthcare
industry.

36

 

 Conclusion 
As such, there is no false suggestion of a connection with Opposer’s marks and there is
no likelihood of confusion with Opposer’s marks. Accordingly, Applicant, Draion M. Burch
LLC DO requests that judgment be entered against Andre Young and that his opposition be
dismissed.
Respectfully submitted,
Draion M Burch, LLC DO

/Andrea H. Evans, Esq./
Andrea H. Evans, Esq.
The Law Firm of Andrea Hence Evans, LLC
14625 Baltimore Avenue , #853
Laurel, Maryland 20707

Dated: December 11, 2017

By:

Jon A. Schiffrin
Schiffrin & Longo, P.C.
8200 Greensboro Drive
Suite 900
McLean, Virginia 22102
Telephone: (703) 288-5248
Facsimile: (703) 288-4003
jon@schiffrinlaw.com

Attorneys for Applicant

CERTIFICATE OF SERVICE 
 
 
The undersigned hereby certifies that a copy of the foregoing Trial Brief has been served via 
electronic mail upon the following counsel of record this _11th__th day of _December__, 2017. 
 

37

 

 James D. Weinberger, Esq. 
Emily Weiss, Esq. 
Fross Zelnick Lehrman & Zissu, P.C. 
866 United Nations Plaza 
New York, New York 10017 
 
 
 

 

 

 

 

 

/Andrea H. Evans, Esq./ 

 

 

 

 

 

 

Andrea H. Evans, Esq. 

 

38

 

 [El-Ir" ?Search ifall. Browse Vote Store
I I A RY

 

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