TTAB IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD In the Matter of Registration No. 3,233,635 Issued on April 24, 2007 Altadis U.S.A. Inc., v, Wentworth E. Miller, Petitioner, ) ) ) ) } ) Cancellation No, ) ) ) ) Registrant. aanaaaannanaaaaaaaaaaaaaaanaaaaaaaaaaaan: 00000 ACM a AND MOTION FOR SUMMARY JUDGMENT DISMISSING THE PETITION ANSWER TO PETITION FOR CANCELLATION 01-13-2009 ‘AS RES JUDICATA AND LACKING A SCINTILLA OF MERIT eset Comes the Registrant, Wentworth E. Miller, acting and responding, pro se, and responds to the allegations, statements, and assertions contained in Petitioner's Petition for Cancellation of ‘Trademark Registration No. 3,233,835 (‘CIGARETTESAVER’), paragraph by paragraph in the ‘same numbers as follows: 1 Respecting paragraph first, lacks sufficient informatie to deny or admit the allegations therein; 2. Respecting paragraph second, lacks sufficient information to deny or admit the allegations therein; 3. Respecting paragraph third, lacks sufficient information to deny or admit the allegations therein; 4 Respecting paragraph fourth, lacks sufficient information to deny or admit the allegations therein; 5, Respecting paragraph fifth, lacks sufficient information to deny or admit the allegations therein; 6 Respecting paragraph sixth, lacks sufficient information to deny or admit the allegations therein; 7. Respecting paragraph seventh, denies that Wentworth E. Miller is located at501 Broad Street, Sewickley, Pennsylvania 15143, but otherwise admits the allegations therein; 8 —_ Respecting paragraph eighth, lacks sufficient information to deny or admit the allegations therein, except admits that the CIGAR SAVOR trademark existed prior to CIGARETTESAVER, but denies that any rights in CIGAR SAVOR are superior to or in any way supercede those in CIGARETTESAVER; © Respecting paragraph ninth, lacks sufficient information to deny or admit the allegations therein; 10. Respecting paragraph tenth, denies the allegations therein, and avers that even iftrue, they are without relevance to the instant proceeding; 11. Respecting paragraph eleventh, lacks sufficient information to deny or admit the allegations therein, but avers that even if true, they are without relevance to the instant proceeding; 12, Respecting paragraph twelfth, denies the allegations therein; 13. Respecting paragraph thirteenth, admits that the mark CIGAR SAVOR was Initially cited by the examiner of trademarks as reason to deny registration of the mark CIGARETTESAVER, but submits that all other allegations therein constitute an opinion of law, not fact, and denies them; 14, Respecting paragraph fourteenth, admits that cigars are "very different” products from cigarettes, but otherwise denies the allegations therein, and further asserts that Petitioner's, ‘conclusions lack relevance in this proceeding; 15. Respecting paragraph fitteenth, lacks sufficient information to deny or admit the allegations therein, but asserts that the discrepancy or inaccuracy, if such was the case, was inadvertent and moreover, is immaterial, that Petitioners further allegations are conclusions of law, not fact, and in any event denies such further allegations; 16. Respecting paragraph sixteenth, admits that the within Petition constitutes an objection to the appropriateness of the registration of CIGARETTESAVER, lacks sufficient information to deny or admit the truth of who Petitioner asserts him or itself to be or represent, adds the following preamble to the statement of Registrant cited by Petitioner, which preambleprecedes and is a part of said statement, provides a necessary context, was self servingly omitted by Petitioner, and highlights the signal absence of a showing, that at a minimum would seem to be a showing that Petitioner should have made beyond a mere speculative assertion thereof before bringing the instant proceeding, namely that confusion has indeed resulted in the marketplace (!!) [Registrant notes in this regard that a Google search of CIGAR SAVOR does not bring up CIGARETTESAVER!} ~-“In the highly unlikely event that confusion were to result in the marketplace, a challenge by the owner of CIGAR SAVOR would be..." ~, and further notes that Petitioner's assertion in any event is a legal conclusion, not a fact. WHEREFORE, Registrant prays that the Trademark Trial and Appeal Board (‘Board’) dismiss the within Petition with prejudice as frivolous and without merit, award Registrant reasonable attomey's fees owing to the frivolous and meritless nature of the Petition, and. award such further relief to Registrant as it may deem appropriate. MOTION FOR SUMMARY JUDGMENT DISMISSING THE WITHIN PETITION AS RES JUDICATA AND LACKING A SCINTILLA OF MERIT 1. Registrant herein, Wentworth E. Miller, is an individual residing at 823 Chestnut Street, Coraopolis, Pennsylvania 15108, and is the owner of Trademark Registration No. 3,233,895 CCIGARETTESAVER’), which is the subject of the foregoing Petition for Cancellation of said Mark, and, with the indulgence of this Board, the allegations of said Petition are hereby incorporated herein and assumed, solely for purposes of this Motion, to be true, except for opinions and conclusions of law. 2. Assuming, arguendo, that Petitioner is who he represents himself to be, and further that Registrant and Petitioner offer similar or related products for sale to a similar ‘customer base, the marks CIGAR SAVOR and CIGARETTESAVER are on their face so dissimilar in kind, appearance, and meaning, as to render any confusion merely the product of Petitioner herein's commercial insecurity, and further that the granting of the within Petition would so broaden the arc of words and definitions associated with a trademark, and so restrain ‘competition and the free flow of commerce, as to make the further entertainment ofthis Petition against the very public policy and commercial and individual interests intended to be protected