New Docket Entry #101 at TTAB http://ttabvue.uspto.gov/ttabvue/v?pno=92053837&pty=CAN&eno=101 This entry shows the papers submitted at the new California lawsuit against Dervaes and Rubio by James Bertini. Of special interest is the Declaration of Mignon Rubio beginning around page 90, parts of which are excerpted below. Rubio and Dervaes (see emails in docket above) tried to restore Bertini’s Facebook page but Bertini failed to respond–see numbers 5, 6, 7, 8 below.
DEFENDANT’S ADDITIONAL FACTS
1.The action Defendant took on February 13, 2011, regarding the Plaintiffs
Facebook page was on her own initiative, using her own computer in her room by
herself. When she saw an injustice, she felt strongly compelled to notify Facebook
about Plaintiffs violation of Dervaes Institute’s Mark “Urban Homesteading.”
2.Defendant acted alone as a mother who wanted to do something to defend
against the repeated infringement by others of the Mark that her adult children
have worked for over ten years to establish. Defendant sought no permission to
fight for her children’s livelihood.
3.Defendant’s children have helped their father, Jules Dervaes, build up
Dervaes Institute whose registered trademark was being stolen by Plaintiff on
Facebook. Defendant acted impulsively to report that crime because she wanted to
stop the damage being done to their work by an infringing rival on Facebook.
4.The Facebook page that Defendant reported as being in violation of a
trademark was created by Plaintiff in February 2010 (Complaint page 3, paragraph11)
5.As a result of Defendant notifying Facebook, the company recognizing the
infringing use by Plaintiff, took down the page on or about February 14, 2011.
The policy of Facebook was to give the violator an advance notice before
removing the page so that the owner could take action to save the page information and/or create a new page by changing the violating name. Plaintiff did not avail itself of this opportunity to alter the outcome.
6.A few days later, Dervaes Institute got an email from James Bertini, owner
of Plaintiff, regarding the Facebook take down request. Since Defendant was
personally responsible for submitting the fact of the Plaintiff’s violation to
Facebook, Jules Dervaes had Defendant write a note of apology to James Bertini,
and state that Defendant would request to have Plaintiff’s page restored if it complied with trademark law by changing its infringing Facebook name. (See Exhibit A)
7.Several unsuccessful attempts were made by Defendant to have the page restored. However, Defendant never received confirmation from James Bertini that he would abide by the terms, as noted in Defendant’s initial letter to him.
8.During the Trademark Trial and Appeal Board (TTAB) cancellation proceeding instituted by Plaintiff in April 11, 2011 (Complaint page 8, paragraph 36), in the discovery process, Plaintiff submitted a letter that it had sent to Facebook asking if Facebook would restore Plaintiff’s page if it changed the name However, this communication was never conveyed to Defendant or to Jules Dervaes during the time when Defendant was trying to help Plaintiff save its page by changing its infringing name to be in accordance with the policy of Facebook.
9.Plaintiff never pursued the above inquiry to conclusion in order to resolve the legal matter on its own; but, instead, in April 2011, it filed a lawsuit against Dervaes Institute for cancellation of the Mark. In the same month, Plaintiff created a new, replacement Facebook page with a new name (DUH) for its business, which has remained online-for almost four years. […]