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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 1 of 227

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EXHIBIT​ ​B
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 9 of 227

EXHIBIT​ ​C
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 10 of 227

Section 1
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 11 of 227
12/26/2017 TTC
Case 5:17-cv-07318 Document Business
1-1 Solutions
Filed 12/27/17 Page 12 of 227
 TERMS OF SERVICE SATISFACTION GUARANTEE FAQS  CUSTOMER LOGIN CREATE ACCOUNT

I need help with… 


HOME ABOUT US SERVICES LEARNING CENTER

CONTACT US

Legal help made easy.

How can we help you?

 Start Your Business

 Register A Trademark

 Protect Your Copyright

Trusted by over 100,000 businesses since 2003.

The legal help you need for one low flat fee.

Start Your Business

Start your business with ease. Our affordable formation packages make it easy.  

Register Your Trademarks

Secure the exclusive right to use your business, product, or service name as a trademark. 

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Protect your creative works using our Copyright registration services.

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12/26/2017 TTC
Case 5:17-cv-07318 Document Business
1-1 Solutions
Filed 12/27/17 Page 13 of 227
With lifetime customer support and reminders of renewal deadlines we make sure your business and trademarks remain registered.

"My experience with TTC Business Solutions was outstanding. They truly get what it means to practice world class customer service.
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refreshing. They are professional and know their technical stuff! I recommend them highly for your business needs in this area. Keep up
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Section 2
12/26/2017 Trademark
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5:17-cv-07318 Services, Enforcement
1-1 Services, and Defense Services
Filed 12/27/17 Page| 16The Trademark
of 227 Company

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5:17-cv-07318 Services, Enforcement
1-1 Services, and Defense Services
Filed 12/27/17 Page| 17The Trademark
of 227 Company
An Overview of How to Select a Great
Patents, Trademarks, Trademark
and Copyrights October 14th, 2016
December 5th, 2016
As a former
I am often asked do I trademark examining
need a trademark for my attorney for the U.S.
slogan? Can I patent my Patent and Trademark
idea? How do I keep O ce and founder of The
others from copying Trademark Company I am
seminar materials that I often asked for
have written? Well, here’s suggestions on how to
a primer for what all select a great trademark
small business owners by our start-up business
should know to protect customers.  The response
their valuable intellectual is always the same, “It
property assets. First, you depends on what you
need to know what the want out of your
[…] trademark.” There are
two schools of […]
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 18 of 227

EXHIBIT​ ​D
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 19 of 227

PO Box 745 Indooroopilly QLD 4068 AUSTRALIA


Ph 1300 662 173 or +61 7 3378 2668
Email enquiries@pacifictranscription.com.au
Web www.pacifictranscription.com.au

FILE DETAILS

Audio Length: 8 minutes

Audio Quality: High Average Low

Number of Facilitators: One

Number of Interviewees: One

Difficult Interviewee Accents: Yes No

Other Comments: Facilitator quite muffled

START OF TRANSCRIPT

Operator: Thank you for calling TTC Business Solutions. Legal help made easy.
If you know the extension of the party you are trying to reach, you may
dial it now. Otherwise, please choose from the following options so
that we may better assist you. For LLC, corporations, non-profits, for
other business-related services, press two. For trademarks, copyright,
enforcements and defence and related services, press three. For
status - please hold while your call is being transferred to
representative.

Facilitator: Thank you for calling TTC. This is Tiffany. How may I help you?

Interviewee: Yeah hi, I’m on your website. I’m just going to apply right now. I had
some questions. Like, how does it work? Once I submit this, what
happens now?

Facilitator: Once you submit it, it comes directly to one of us and we’ll go through
and make sure that we have all the information that we need to get it
[Unclear] words are denoted in square brackets and time stamps may be used to indicate their location within the audio.

Distribution of this transcript requires client authority and is subject to the provisions of the Australian Privacy Principles.
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 20 of 227
TrademarkCompany-TTCCompany Page 2 of 5

filed for you. If we do, we’ll go ahead and start it, get it over to you to
review and e-sign. If not, we’ll reach out to you and let you know that
we need more information, but we’ll get everything taken care of
within a day or two.

Interviewee: Okay. So I will - do I pay the government fees on the website, on your
website? Or do I - do you guys help me figure out? How does that
work?

Facilitator: You pay everything via the website and we distribute the government
fees to the actual US PTO for you.

Interviewee: Okay. Then if I put - I don’t know my description and stuff. Do you
help me? I have a description, I know my description, but can you
help me make sure it’s good or acceptable?

Facilitator: Description of your goods and services, or your logo?

Interviewee: I don’t have a logo.

Facilitator: Okay, your goods and services. What are you offering the
customers?

Interviewee: It’s like a real estate company that I’m starting. It’s a website. So buy
and sell houses and commercial real estate, residential real estate.

Facilitator: Okay, for real estate sales if you just slip it on there, because if I’m
talking to you your application comes up, make a note and it will come
through me. If you put it on there, most real estate falls in class 35 or
36. If you just put on there, residential and commercial real estate, I’ll
be able to figure it out for you.

Interviewee: Okay. So you’ll be able to pick it for me. Then what about - do I have
- I used it in 2002, but I haven’t used it again. I’m starting to reuse it
again now. I need to get my website. But is that still use in
commerce, or is that intend to use, or how do I do that? I’m beginning
to use it now.

PO Box 745 Indooroopilly QLD 4068 AUSTRALIA Ph 1300 662 173 or +61 7 3378 2668

Email enquiries@pacifictranscription.com.au Web www.pacifictranscription.com.au


Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 21 of 227
TrademarkCompany-TTCCompany Page 3 of 5

Facilitator: Do you have - right now [unclear] submitting your application do you
have something that you - like, do you have something that you can
submit as a proof of use?

Interviewee: Yeah, I mean, I have to get it back up on the site, but I do have it. I
mean, it’s on a way back machine, but it’s not active on the site right
now. I’ve got to get…

Facilitator: Yeah, if you have something that you can submit as proof of use, you
can file it in use and just put the date of first use. If it’s a name, they
just want to know whether it’s on your website or anything like that.
They just want to know, what was your first use in commerce, even if
you took a break. Then you can go ahead, put the application in.
What happens is, after the application comes to me, I’ll send you an
email confirmation and you can just submit the proof to me via email.

Interviewee: Okay. Cool. All right. Then let’s see - if there’s - how does it work?
So do you guys do a search? Does it - what if there’s other names
out there that are similar, whatever?

Facilitator: Which application are you looking at? The economy?

Interviewee: The nine-nine thing is what I selected, but…

Facilitator: Okay. So for that one we do a direct [search]. We make sure that
your exact name that you want is available. As long as it’s available,
we’ll file it. If somebody has [used] that name, we won’t file it. We’ll
let you know.

Interviewee: So could I get a better search? Could I get a more advanced?


Because what if something’s almost the same or whatever?

Facilitator: Uh-huh. If you want the advanced search, you want to do the
standard plus package. Instead of it being $324, it would be a total of
$434. However, if that search comes back and you don’t feel
comfortable with filing based on what’s on that research report, we’ll
refund you everything except for $95 for the search.

Interviewee: If it’s similar, can you help me figure out if it’s a good one to still
pursue, or how does that work?
PO Box 745 Indooroopilly QLD 4068 AUSTRALIA Ph 1300 662 173 or +61 7 3378 2668

Email enquiries@pacifictranscription.com.au Web www.pacifictranscription.com.au


Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 22 of 227
TrademarkCompany-TTCCompany Page 4 of 5

Facilitator: Yeah, because the report is going to be [detailed] and I’m going to go
over it with you. So let’s just say I want a trademark [unclear] and
somebody has the trademark already that’s called Tiffany [unclear], it
will give me all the details of that trademark, how long it is filed, what
their goods and services are. It could be that I’m retail and they’re
doing [T&D], so not too many people would get those confused. So it
will go through all the details so you can make a sound decision.

Interviewee: Okay. Then - so then it will give me - you’ll tell me if it’s close enough
or not that close or whatever.

Facilitator: Yeah, we’ll have all the details and you and I will go through it
together.

Interviewee: Okay. Perfect. Thank you so much. Thank you for your time. What’s
your name?

Facilitator: You’re welcome. My name is Tiffany. May I have your email address
so I can look out for your letter?

Interviewee: Sure. It’s - yeah, I’m just submitting it now. It will be R-A-J @
L-E-G-A-L-F-O-R-C-L-A-W. I’ll send it in the next 10 minutes. I’ll
submit it and then I’ll - you’ll see it in your system. Okay?

Facilitator: Okay. The only reason I’m asking is so that I can check it out when it
comes. You said, R-A-J-@.

Interviewee: Yeah, Raj. I don’t know which email, but I’ve got two emails, so I’ll
use - I’ll decide that. I’m on that form right now. I’m on that page right
now. So it’s going to be either - yeah, so it’s for my real estate
company, so I’ll send - yeah, so I might use my…

Facilitator: Your phone number that we’re speaking on will be on the order?

Interviewee: Yeah, for - this - not - my cell phone will be. This is my landline, so I
will use my - the - I will use my cell phone so you can directly call me.
The email I’m going to use for this is my personal email, because it’s
not for my business. So it will just be rabhyanker,
R-A-B-H-Y-A-N-K-E-R, @gmail.com.

PO Box 745 Indooroopilly QLD 4068 AUSTRALIA Ph 1300 662 173 or +61 7 3378 2668

Email enquiries@pacifictranscription.com.au Web www.pacifictranscription.com.au


Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 23 of 227
TrademarkCompany-TTCCompany Page 5 of 5

Facilitator: Okay. I'm sorry, one more time that was R-A-B as in boy?

Interviewee: Yeah. Yeah.

Facilitator: R-A-B as in boy H-Y.

Interviewee: A-N-K-E-R @gmail.com.

Facilitator: All right. I’ll be looking for it. Okay?

Interviewee: Okay. Yeah. I might use that work email which I gave you earlier, but
I’ll most likely use this one. Okay?

Facilitator: Okay.

Interviewee: All right. Thank you. Okay. Bye.

END OF TRANSCRIPT

PO Box 745 Indooroopilly QLD 4068 AUSTRALIA Ph 1300 662 173 or +61 7 3378 2668

Email enquiries@pacifictranscription.com.au Web www.pacifictranscription.com.au


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EXHIBIT​ ​E
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Section 1
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12/26/2017 About Us1-1
Case 5:17-cv-07318 Document | TTC Filed
Business12/27/17
Solutions Page 27 of 227

 TERMS OF SERVICE SATISFACTION GUARANTEE FAQS  CUSTOMER LOGIN CREATE ACCOUNT

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HOME ABOUT US SERVICES

LEARNING CENTER CONTACT US

Legal help made easy


Affordable legal services should be available to all.

Our Story
18 years dedicated to expanding access to legal services

1999

We develop software that enables you to create legal documents without the help
of an attorney.

2002

We realize legal help needs to be affordable and begin our mission to expand
access to low-cost legal services for all.

2003

We launch our original services combining world-class customer service with


top-caliber legal help.
https://www.ttcbusinesssolutions.com/about 1/4
12/26/2017 About Us1-1
Case 5:17-cv-07318 Document | TTC Filed
Business12/27/17
Solutions Page 28 of 227

2015

We modify our original business structure to further expand access to legal


services adding a host of business ling options.  

2017

We further expand access to legal services through our network of independent


attorneys providing affordable  legal services for all.  

What Sets Us Apart



We Make Legal Help Fast & Easy

Our services make it fast and easy to open and run your business, register and
maintain your trademarks, and protect your copyrights. In short, keeping with our
founding principles we provide the highest level of business, copyright, and
trademark services at the most affordable rates in the industry.


Answers to Your Questions

Our specialists are the most knowledgeable in the industry.  Unlike other services
which either will not answer your questions or simply do not know the answers
we do and will.  We want our customers and prospective customers to be 100%
satis ed 100% of the time.  If it can be answered, our specialists will answer it.


https://www.ttcbusinesssolutions.com/about
We're the Experts in What We Do 2/4
12/26/2017 About Us1-1
Case 5:17-cv-07318 Document | TTC Filed
Business12/27/17
Solutions Page 29 of 227
We re the Experts in What We Do

We're experts in what we do. Every employee attends TTC University™.


 TTC University™ is an extensive training program to make our people the best at
what they do. Only after they have completed their training and passed a rigorous
series of examinations can an employee be placed into service. It is this rigorous
training that leads to the expert level of services we provide.  A standard others
may try to copy, but they cannot.


You Can Trust Us

Thousands have trusted us with their business formation, trademark, and


copyright lings. You can too. With widespread industry recognition and an A+
Better Business Bureau rating, your matters are in good hands. So why choose
TTC Business Solutions? Unparalleled value, quality, and personal service. But
don’t take our word for it.  Come and experience the TTC Business
Solutions difference yourself.  You’ll be glad you did. 

Industry Reviews
What reviewers say about our services.

"TTC Business Solutions has 4.93 out of 5 stars ... and a BBB Rating of A+... [based
upon their] ... positive track record in the marketplace... honestly representing
products and services... [and] approach[ing] all business dealings, marketplace
transactions and commitments with integrity."

"This website is highly rated because it gives you all the tools you need to start a
https://www.ttcbusinesssolutions.com/about 3/4
s ebs teCase
12/26/2017
s 5:17-cv-07318
g y ated because t g | TTC
About Us1-1
Document esFiled
you aSolutions
t e too
Business12/27/17
s you
Page eed to sta t a
30 of 227

business, register a trademark, and protect your copyright — with affordable


pricing and helpful educational content... [the] website is easy to use... [f]or these
reasons, we recommend TTC Business Solutions."

How can we help you?

 Start Your Business

 Register a Trademark

 Protect Your Copyright

Industry Recognition
We've been featured in:

 
   

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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 31 of 227

Section 2
12/26/2017 About Us1-1
Case 5:17-cv-07318 Document | The Trademark Company
Filed 12/27/17 Page 32 of 227

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About Us ABOUT US
Why The Trademark
Company? Why The Trademark Company?
Honors and Awards Many of our customers stress the value of our services.  In short,
Our History keeping with our founding principles we provide the highest level of
trademark services at the most a ordable rates in the industry. Read
Testimonials More.
Careers
Honors and Awards
Press Releases
At The Trademark Company we are proud of both the industry
recognition we have received throughout the years as well as broader
media attention.  Read More.

Our History
The concept for The Trademark Company was born in 2000 while its
founder, Matthew H. Swyers, was a trademark examining attorney for
the United States Patent and Trademark O ce (“USPTO”).  Read More.

Press Releases
The latest information about The Trademark Company, our products
and services, and announcements. Read More.

Site Links Latest Tweets From the Learning Center Social

Copyright An Overview of Patents,


Services Trademarks, and Copyrights   
How to Select a Great Trademark

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12/26/2017 About Us1-1
Case 5:17-cv-07318 Document | The Trademark Company
Filed 12/27/17 Page 33 of 227
Enforcement An Overview of the U.S. Federal
Services Tweets by @TrademarkCo Trademark Registration Process
Defense Services Brand Protection for the Small
Satisfaction
TheTrademarkCo… Business
@TrademarkCo
Guarantee How to Protect Your Trademark
I added a video to a @YouTube
Terms of Service How to Protect Your US
playlist youtu.be/1emp0fTBq4Y?a
Trademark Internationally
11 Insanely Quick Tips to Close
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YouTube @YouTube

Embed View on Twitter

Copyright © 2017 The Trademark Company. All rights reserved. – Ecommerce Website Development & Raleigh SEO by TheeDesign Studio

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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 34 of 227

EXHIBIT​ ​F
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EXHIBIT​ ​G
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Section 1
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 39 of 227

Section 2
12/26/2017 Case 5:17-cv-07318 Trademark/Service
Document 1-1 Mark Application, Principal Register
Filed 12/27/17 Page 40 of 227
PTO Form 1478 (Rev 9/2006)
OMB No. 0651-0009 (Exp 02/28/2018)

Trademark/Service Mark Application, Principal Register


TEAS Plus Application
Serial Number: 86711214
Filing Date: 07/31/2015

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of
the particular application.

The table below presents the data as entered.

Input Field Entered


TEAS Plus YES
MARK INFORMATION
*MARK TTC BUSINESS SOLUTIONS
*STANDARD CHARACTERS YES
USPTO-GENERATED IMAGE YES
LITERAL ELEMENT TTC BUSINESS SOLUTIONS

*MARK STATEMENT
The mark consists of standard characters, without claim to any
particular font, style, size, or color.
REGISTER Principal
APPLICANT INFORMATION
*OWNER OF MARK TTC Business Solutions, LLC
*STREET 2703 Jones Franklin Rd. Suite 205
*CITY Cary
*STATE
North Carolina
(Required for U.S. applicants)

*COUNTRY United States


*ZIP/POSTAL CODE
(Required for U.S. applicants)
27518

EMAIL ADDRESS mswyers@thetrademarkcompany.com


AUTHORIZED TO COMMUNICATE VIA EMAIL Yes
LEGAL ENTITY INFORMATION
*TYPE LIMITED LIABILITY COMPANY
* STATE/COUNTRY WHERE LEGALLY ORGANIZED North Carolina
GOODS AND/OR SERVICES AND BASIS INFORMATION
*INTERNATIONAL CLASS 045
*IDENTIFICATION Public document filing services
*FILING BASIS SECTION 1(b)
ADDITIONAL STATEMENTS SECTION
*TRANSLATION
(if applicable)

*TRANSLITERATION
(if applicable)

*CLAIMED PRIOR REGISTRATION


(if applicable)

*CONSENT (NAME/LIKENESS)
(if applicable)

*CONCURRENT USE CLAIM


(if applicable)

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12/26/2017 Case 5:17-cv-07318 Trademark/Service
Document 1-1 Mark Application, Principal Register
Filed 12/27/17 Page 41 of 227
DISCLAIMER No claim is made to the exclusive right to use BUSINESS
SOLUTIONS apart from the mark as shown.
TTC appearing in the mark has no significance nor is it a term of art in
the relevant trade or industry or as used in connection with the
SIGNIFICANCE OF MARK
goods/services listed in the application, or any geographical
significance.
CORRESPONDENCE INFORMATION
*NAME TTC Business Solutions, LLC
*STREET 2703 Jones Franklin Rd. Suite 205
*CITY Cary
*STATE
(Required for U.S. applicants)
North Carolina

*COUNTRY United States


*ZIP/POSTAL CODE 27518
*EMAIL ADDRESS mswyers@thetrademarkcompany.com
*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes
FEE INFORMATION
APPLICATION FILING OPTION TEAS Plus
NUMBER OF CLASSES 1
FEE PER CLASS 225
*TOTAL FEE PAID 225
SIGNATURE INFORMATION
* SIGNATURE /Matthew H. Swyers/
* SIGNATORY'S NAME Matthew H. Swyers
* SIGNATORY'S POSITION Principal
* DATE SIGNED 07/31/2015

https://tsdr.uspto.gov/documentviewer?caseId=sn86711214&docId=FTK20150804075915#docIndex=14&page=1 2/4
12/26/2017 Case 5:17-cv-07318 Trademark/Service
Document 1-1 Mark Application, Principal Register
Filed 12/27/17 Page 42 of 227
PTO Form 1478 (Rev 9/2006)
OMB No. 0651-0009 (Exp 02/28/2018)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 86711214


Filing Date: 07/31/2015

To the Commissioner for Trademarks:

MARK: TTC BUSINESS SOLUTIONS (Standard Characters, see mark)


The literal element of the mark consists of TTC BUSINESS SOLUTIONS.
The mark consists of standard characters, without claim to any particular font, style, size, or color.

The applicant, TTC Business Solutions, LLC, a limited liability company legally organized under the laws of North Carolina, having an address of
2703 Jones Franklin Rd. Suite 205
Cary, North Carolina 27518
United States

requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the
Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table.
International Class 045: Public document filing services
Intent to Use: The applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the identified goods/services. (15
U.S.C. Section 1051(b)).

Disclaimer
No claim is made to the exclusive right to use BUSINESS SOLUTIONS apart from the mark as shown.

Significance of wording, letter(s), or numeral(s)


TTC appearing in the mark has no significance nor is it a term of art in the relevant trade or industry or as used in connection with the goods/services listed in the
application, or any geographical significance.

The applicant's current Correspondence Information:


TTC Business Solutions, LLC
2703 Jones Franklin Rd. Suite 205
Cary, North Carolina 27518
mswyers@thetrademarkcompany.com (authorized)
E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or applicant's attorney at the e-mail
address provided above. I understand that a valid e-mail address must be maintained and that the applicant or the applicant's attorney must file the relevant
subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in an additional processing fee
of $50 per international class of goods/services.

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

The signatory believes that: if the applicant is filing the application under 15 U.S.C. § 1051(a), the applicant is the owner of the trademark/service mark sought to
be registered; the applicant is using the mark in commerce on or in connection with the goods/services in the application; the specimen(s) shows the mark as used
on or in connection with the goods/services in the application; and/or if the applicant filed an application under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e),
the applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the goods/services in the application. The signatory
believes that to the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the mark in
commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to
cause confusion or mistake, or to deceive. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both,
under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or any registration resulting therefrom,
declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true.

Signature: /Matthew H. Swyers/ Date Signed: 07/31/2015


Signatory's Name: Matthew H. Swyers
Signatory's Position: Principal

RAM Sale Number: 86711214


RAM Accounting Date: 08/03/2015

https://tsdr.uspto.gov/documentviewer?caseId=sn86711214&docId=FTK20150804075915#docIndex=14&page=1 3/4
12/26/2017 Case 5:17-cv-07318 Trademark/Service
Document 1-1 Mark Application, Principal Register
Filed 12/27/17 Page 43 of 227
Serial Number: 86711214
Internet Transmission Date: Fri Jul 31 13:58:19 EDT 2015
TEAS Stamp: USPTO/FTK-XX.XX.XXX.XXX-2015073113581921
0429-86711214-540a3528cb4dbc8ce5ee13ad16
f32a1bdc73f85543db7073d6f569477b4d10ae0-
CC-178-20150731135118142492

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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 44 of 227

Section 3
12/26/2017 (3) Matthew
Case 5:17-cv-07318 Document 1-1 Swyers
Filed| LinkedIn
12/27/17 Page 45 of 227
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 47 of 227

EXHIBIT​ ​H
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 48 of 227

UNITED STATES PATENT AND TRADEMARK OFFICE


BEFORE THE DIRECTOR OF THE
UNITED STATES PATENT AND TRADEMARK OFFICE

In the Matter of )
)
Matthew H. Swyers, ) Proceeding No. D2016-20
)
Respondent )
~~~~~~~~~~~-l

FINAL ORDER

Pursuant to 37 C.F.R. § 11.27(b), the Director of the United States Patent and

Trademark Office ("USPTO" or "Office") received for review and approval from the

Director of the Office of Emollment and Discipline ("OED Director") an Affidavit For

Consent Exclusion pursuant to 37 C.F.R. § 11.27, executed by Matthew H. Swyers

("Respondent") on December 20, 2016. Respondent submitted the twelve-page Affidavit

For Consent Exclusion to the USPTO for the purpose of being excluded on consent

pursuant to 37 C.F.R. § 11.27.

For the reasons set forth herein, Respondent's Affidavit For Consent Exclusion

shall be approved, and Respondent shall be excluded on consent from practice before the

Office in trademark and non-patent matters commencing on the date of this Final Order.

Jurisdiction

Respondent, of Vienna, Virginia, is an attorney licensed to practice law in the

Commonwealth of Virginia and the District of Columbia and has practiced before the

USPTO in trademark matters. As such, he is subject to the USPTO Code of Professional


Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 49 of 227

Responsibility, which is set forth at 37 C.F.R. § 10.20 et seq., and the USPTO Rules of

Professional Conduct, which are set forth at 37 C.F.R. §§ 11.101through11.901.1

Pursuant to 35 U.S.C. §§ 2(b)(2)(D) and 32 and 37 C.F.R. § 11.27, the USPTO

Director has the authority to approve Respondent's Affidavit for Consent Exclusion and

to exclude Respondent on consent from the practice of trademark and non-patent matters

before the Office.

Allegations of the Disciplinary Complaint

A disciplinary complaint is pending against Respondent (Proceeding No. 2016-20)

which alleges that:

a. Respondent, an experienced trademark lawyer and former USPTO


Trademark Examining Attorney, established The Trademark
Company, PLLC, and through that business systematically
permitted non-attorneys to practice trademark law for him with little
or no supervision.

b. Respondent, the sole attorney at the company, did not personally


review or sign thousands of trademark applications and related
documents (including statements of use, § 2(f) declarations, and
responses to Office actions) prepared by his non-lawyer employees
and filed with the USPTO, in violation of USPTO signature and
certification rules and despite assurances on the company website
that trademark applicants would be represented by a specialized
attorney.

c. As a result of Respondent's failure to supervise his employees,


multiple fraudulent or digitally manipulated specimens of use were
filed with the Office, which potentially jeopardized the trademark
applications of his clients.

1 The USPTO Code of Professional Responsibility applies to conduct prior to May 3, 2013, and
the USPTO Rules of Professional Conduct apply to conduct on or after May 3, 2013.

2
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 50 of 227

d. Respondent failed to deposit client funds paid in advance into a


client trust account and improperly split legal fees with his non-
practitioner employees.

e. Respondent failed to respond to lawful requests for information or


cooperate with the investigation conducted by the Office of
Enrollment and Discipline.

Respondent's Affidavit For Consent Exclusion

Respondent acknowledges in his December 20, 2016 Affidavit For Consent

Exclusion that:

1. His consent is freely and voluntarily rendered, and he is not being subjected

to coercion or duress.

2. He is aware that the disciplinary complaint filed against him (Proceeding

No. D2016-20) alleges that he violated the following Disciplinary Rules of the USPTO

Code of Professional Responsibility and/ or the USPTO Rules of Professional Conduct:

a. 37 C.F.R. § 10.23(a) (engaging in disreputable or gross


misconduct by, inter alia: directing or allowing his employees
to prepare, sign, and file trademark applications, responses to
Office Actions, and other trademark documents; directing or
allowing his employees to provide legal advice and guidance
to trademark applicants; and/ or directing or allowing his
employees to communicate with his clients about trademark
search reports and opinions, without his involvement or
supervision; engaging in disreputable or gross misconduct
by, inter alia: failing to comply with the USPTO's electronic
signature rules by not personally electronically signing
trademark applications and trademark documents filed with
the USPTO and, instead, directing or allowing his employees
to sign or forge his electronic signature to the documents,
which resulted in the validity of registered trademarks being
jeopardized; engaging in disreputable or gross misconduct
by, inter alia: directing or allowing his employees to sign or
forge his name to § 2(£) declarations and file the § 2(f)
declarations with the Office, when (i) he knew that the

3
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 51 of 227

Trademark Examining Attorneys would rely on the


declarations when examining trademark applications and
issuing registrations and when he knew or reasonably should
have known that the validity of an applicants' applications
and registrations were jeopardized by the false and/ or forged
declarations; and/ or (ii) he knew or should have known his
employees did not have adequate knowledge to aver, "The
mark has become distinctive of the goods/ services through
the applicant's substantially exclusive and continuous use in
commerce that the U.S. Congress may lawfully regulate for at
least the five years immediately before the date of this
statement;" engaging in disreputable or gross misconduct by,
inter alia: (i) failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, (ii) failing to inform his clients that
their trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them,
and/ or (iii) failing to inform the USPTO of the potentially
invalid applications and/ or registrations that resulted from
the filing of false or fraudulent specimens or digitally altered
marks; engaging in disreputable or gross misconduct by, inter
alia: (i) not informing clients who purchased trademark legal
services from The Trademark Company that their
applications and other trademark documents were not
prepared or reviewed by an attorney prior to being filed with
the Office; and/ or (ii) collecting fees from clients for
trademark legal services that were supposed to be performed
by an attorney when their applications and other trademark
documents were not prepared or reviewed by an attorney
prior to being filed with the Office);

b. 37 C.F.R. § 10.23(b)(4) (engaging in conduct involving


dishonesty, fraud, deceit, or misrepresentation by, inter alia:
not informing clients who purchased trademark legal services
from The Trademark Company that their applications and
other trademark documents were not prepared or reviewed

4
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 52 of 227

by an attorney prior to being filed with the Office; engaging


in conduct involving dishonesty, fraud, deceit, or
misrepresentation by, inter alia: (i) not personally
electronically signing trademark applications and trademark
documents filed with the USPTO and, instead, directing or
allowing his employees to sign or forge his electronic
signature to the documents, thereby misleading the USPTO,
his clients, and the public into believing that Respondent had
actually signed the trademark application or trademark
document; and/ or (ii) not affirmatively informing the
Trademark Examining Attorney that the actual signatory, the
employee, was not identified on the document; engaging in
conduct involving dishonesty, fraud, deceit, or
misrepresentation by, inter alia: directing or allowing his
employees to sign or forge his name to § 2(f) declarations and
file the § 2(f) declarations with the Office, when (i) he knew
that the Trademark Examining Attorneys would rely on the
declarations when examining trademark applications and
issuing registrations, and/ or (ii) he knew or should have
known his employees did not have adequate knowledge to
aver, "The mark has become distinctive of the goods/ services
through the applicant's substantially exclusive and
continuous use in commerce that the U.S. Congress may
lawfully regulate for at least the five years immediately before
the date of this statement;" engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation by, inter alia:
(i) failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, (ii) failing to inform his clients that
their trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them,
and/ or (iii) failing to inform the USPTO of the potentially
invalid applications and/ or registrations that resulted from
the filing of false or fraudulent specimens or digitally altered
marks; engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation by, inter alia: (i) not informing

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clients who purchased trademark legal services from The


Trademark Company that their applications and other
trademark documents were not prepared or reviewed by an
attorney prior to being filed with the Office; and/ or (ii)
collecting fees from clients for trademark legal services that
were supposed to be performed by an attorney when their
applications and other trademark documents were not
prepared or reviewed by an attorney prior to being filed with
the Office);

c. 37 C.F.R. § 10.23(b)(5) (engaging in conduct prejudicial to the


administration of justice by, inter alia: (i) directing or allowing
his employees to prepare, sign, and file trademark
applications, responses to Office Actions, and other
trademark documents; directing or allowing his employees to
provide legal advice and guidance to trademark applicants;
and/ or directing or allowing his employees to communicate
with his clients about trademark search reports and opinions,
without his involvement or supervision; and/ or (ii) not
reviewing trademark applications and other trademark
documents (e.g., responses to Office Actions) prepared and
filed by his employees before they were filed with the Office;
engaging in conduct prejudicial to the administration of
justice by, inter alia: (i) failing to comply with the USPTO's
electronic signature rules by not personally electronically
signing trademark applications and trademark documents
filed with the USPTO and, instead, directing or allowing his
employees to sign or forge his electronic signature to the
documents, which resulted in the validity of registered
trademarks being jeopardized and/ or (ii) directing or
allowing his employees to sign or forge his electronic
signature to trademark applications and other trademark
documents knowing that the actual signatory, the employee,
was not identified on the documents contrary to
Respondent's certifications under § 11.18; engaging in
conduct prejudicial to the administration of justice by, inter
alia: directing or allowing his employees to sign or forge his
name to§ 2(f) declarations and file the § 2(f) declarations with
the Office, when (i) he knew that the Trademark Examining
Attorneys would rely on the declarations when examining
trademark applications and issuing registrations; and/ or (ii)
he knew or should have known his employees did not have
adequate knowledge to aver, "The mark has become

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distinctive of the goods/ services through the applicant's


substantially exclusive and continuous use in commerce that
the U.S. Congress may lawfully regulate for at least the five
years immediately before the date of this statement;" and/ or
(iii) he knew that (a) the actual signatory, the employee, was
not identified on the document and (b) the actual signatory,
the employee, did not have the knowledge to support the
factual contentions found in the declaration; engaging in
conduct prejudicial to the administration of justice by, inter
alia: (i) failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, and/ or (ii) failing to inform the
USPTO of the potentially invalid applications and/ or
registrations that resulted from the filing of false or
fraudulent specimens or digitally altered mark);

d. 37 C.F.R. § 10.23(b)(6) (engaging in any other conduct that


adverse! y reflects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count I of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Code of
Professional Responsibility; engaging in any other conduct
that adversely reflects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count II of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Code of
Professional Responsibility; engaging in any other conduct
that adversely reflects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count III of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Code of
Professional Responsibility; any other conduct that adversely
reflects on the practitioner's fitness to practice before the
Office, by engaging in the conduct referenced in Count IV of
the Complaint to the extent that his conduct does not
otherwise violate a provision of the USPTO Code of
Professional Responsibility);

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e. 37 C.F.R. §§ 10.23(a) and (b) via 10.23(c)(2)(ii) (knowingly


giving false or misleading information or knowingly
participating in a material way in giving false or misleading
information to the USPTO or any employee of the USPTO by,
inter alia: directing or allowing his employees to sign or forge
his name to § 2(£) declarations and file the § 2(f) declarations
with the Office, when (i) he knew that the Trademark
Examining Attorneys would rely on the declarations when
examining trademark applications and issuing registrations,
and/ or (ii) he knew or should have known his employees did
not have adequate knowledge to aver, "The mark has become
distinctive of the goods/services through the applicant's
substantially exclusive and continuous use in commerce that
the U.S. Congress may lawfully regulate for at least the five
years immediately before the date of this statement;" and/ or
(iii) he knew that (a) the actual signatory, the employee, was
not identified on the document and (b) the actual signatory,
the employee, did not have the knowledge to support the
factual contentions found in the declaration);

f. 37 C.F.R. §§ 10.23(a) and (b) via 10.23(c)(15) (violating the


certifications made to the USPTO under 37 C.F.R. § 11.18 by,
inter alia: directing or allowing his employees to sign or forge
his electronic signature to trademark applications and other
trademark documents knowing that the actual signatory, the
employee, was not identified on the documents; violating the
certifications made to the USPTO under 37 C.F.R. § 11.18 by,
inter alia: directing or allowing his employees to sign or forge
his name to § 2(f) declarations and file the § 2(f) declarations
with the Office, knowing that (i) the actual signatory, the
' employee, was not identified on the document and (ii) the
actual signatory, the employee, did not have the knowledge
to support the factual contentions found in the declaration;
violating the certifications made to the USPTO under 37
C.F.R. § 11.18 by, inter alia, failing to adequately supervise his
employees or adequately review their work, thus permitting
them to create false or fraudulent specimens and/ or digitally
altered images of marks that did not depict the actual mark as
used in commerce and file these specimens with the Office);

g. 37 C.F.R. § 10.31(a) (deceiving or misleading prospective


applicants or other persons having immediate or prospective

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business before the Office by word, circular, letter, or


advertising with respect to prospective business before the
Office by, inter alia: advertising on The Trademark Company's
website that trademark applications would be prepared by an
attorney when Respondent knew that trademark applications
were not prepared or reviewed by an attorney prior to being
filed with the USPTO; engaging in any other conduct that
adversely reflects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count V of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Code of
Professional Responsibility);

h. 37 C.F.R. § 10.47(a) and (c) (aiding a non-practitioner in the


unauthorized practice of law before the Office by, inter alia: (i)
directing or allowing his employees to prepare, sign, and file
trademark applications, responses to Office Actions, and
other trademark documents; directing or allowing his
employees to provide legal advice and guidance to trademark
applicants; and/ or directing or allowing his employees to
communicate with his clients about trademark search reports
and opinions, without his involvement or supervision;
and/ or (ii) not reviewing trademark applications and other
trademark documents (e.g., responses to Office Actions)
prepared and filed by his employees before they were filed
with the Office);

i. 37 C.F.R. § 10.48 (sharing legal fees with a non-practitioner by


paying employees non-discretionary monthly bonuses tied to
the proceeds generated by the trademark legal services
provided to applicants with whom they interacted);

j. 37 C.F.R. § 10.77(b) (handling a legal matter without


preparation adequate under the circumstances by, inter alia:
failing to comply with the USPTO' s electronic signature rules
by not personally electronically signing trademark
applications and trademark documents filed with the USPTO
and, instead, directing or allowing his employees to sign or
forge his electronic signature to the documents, which
resulted in the validity of registered trademarks being
jeopardized);

9
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k. 37 C.F.R. § 10.77(c) (neglecting client matters by, inter alia: not


reviewing trademark applications, responses to Office
Actions, and other trademark documents prepared and filed
by his employees before they were filed with· the Office;
neglecting client matters by, inter alia: (i) failing to adequately
supervise his employees or adequately review their work,
thus permitting them to create false or fraudulent specimens
and/ or digitally altered images of marks that did not depict
the actual mark as used in commerce and file these specimens
with the Office, and as a result, in some cases, the USPTO
issued trademark registrations based on the false or
fraudulent specimens or digitally altered marks, putting the
validity of the resulting trademarks in jeopardy, and/ or (ii)
failing to inform his clients that their trademark registrations
or applications were potentially invalid and/ or take timely
and effective remedial action on their behalf and/ or offer or
provide restitution to them);

1. 37 C.F.R. § 10.84(a)(l) (intentionally failing to seek the lawful


objectives of a client through reasonably available means
permitted by law by, inter alia: intentionally failing to inform
his clients that their trademark registrations or applications
were potentially invalid and/ or take timely and effective
remedial action on their behalf and/ or offer or provide
restitution to them);

m. 37 C.F.R. § 10.84(a)(3) (intentionally prejudicing or damaging


the client during the course of a professional relationship by,
inter alia: intentionally failing to inform his clients that their
trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them);

n. 37 C.F.R. § 10.89(c)(6) (intentionally or habitually violating


any provision of the USPTO Code of Professional
Responsibility while appearing in a professional capacity
before a tribunal by, inter alia: (i) directing or allowing his
employees to prepare, sign, and file trademark applications,
responses to Office Actions, and other trademark documents;
directing or allowing his employees to provide legal advice
and guidance to trademark applicants; and/ or directing or
allowing his employees to communicate with his clients about
trademark search reports and opinions, without his

10
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involvement or superv1s10n; and/ or (ii) not reviewing


trademark applications, responses to Office Actions, and
other trademark documents prepared and filed by his
employees before they were filed with the Office;
intentionally or habitually violating any provision of the
USPTO Code of Professional Responsibility while appearing
in a professional capacity before a tribunal by, inter alia: failing
to comply with the USPTO's electronic signature rules by not
personally electronically signing trademark applications and
trademark documents filed with the USPTO and, instead,
directing or allowing his employees to sign or forge his
electronic signature to the documents, which resulted in the
validity of registered trademarks being jeopardized;
intentionally or habitually violating any provision of the
USPTO Code of Professional Responsibility while appearing
in a professional capacity before a tribunal by, inter alia:
directing or allowing his employees to sign or forge his name
to § 2(f) declarations and file the § 2(f) declarations with the
Office, when (i) he knew that the Trademark Examining
Attorneys would rely on the declarations when examining
trademark applications and issuing registrations, and/ or (ii)
he knew or should have known his employees did not have
adequate knowledge to aver, "The mark has become
distinctive of the goods/services through the applicant's
substantially exclusive and continuous use in commerce that
the U.S. Congress may lawfully regulate for at least the five
years immediately before the date of this statement;";
intentionally or habitually violating any provision of the
USPTO Code of Professional Responsibility while appearing
in a professional capacity before a tribunal by, inter alia: (i)
failing to adequately supervise his employees or adequately
review their work, thus permitting them to create false or
fraudulent specimens and/ or digitally altered images of
marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, and/ or (ii) failing to inform the
USPTO of the potentially invalid applications and/ or
registrations that resulted from the filing of false or
fraudulent specimens or digitally altered marks);

11
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o. 37 C.F.R. § 10.112(a) (failing to deposit legal fees paid in


advance into a separate client trust account by depositing
them instead into The Trademark Company's operating
account);

p. 37 C.F.R. § 11.101 (failing to provide competent


representation by, inter alia: not reviewing trademark
applications, responses to Office Actions, and other
trademark documents prepared and filed by his employees
before they were filed with the Office; failing to provide
competent representation by, inter alia: failing to comply with
the USPTO's electronic signature rules by not personally
electronically signing trademark applications and trademark
documents filed with the USPTO and, instead, directing or
allowing his employees to sign or forge his electronic
signature to the documents, which resulted in the validity of
registered trademarks being jeopardized; failing to provide
competent representation by, inter alia: directing or allowing
his employees to sign or forge his name to § 2(f) declarations
and file the § 2(£) declarations with the Office, when (i) he
knew that the Trademark Examining Attorneys would rely on
the declarations when examining trademark applications and
issuing registrations and when he knew or reasonably should
have known that the validity of the applicants' applications
and registrations were jeopardized by the false declarations;
failing to provide competent representation by, inter alia: (i)
failing to adequately supervise his employees or adequately
review their work, thus permitting them to create false or
fraudulent specimens and/ or digitally altered images of
marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, and/ or (ii) failing to inform his
clients that their trademark registrations or applications were
potentially invalid and/ or take timely and effective remedial
action on their behalf and/ or offer or provide restitution to
them);

q. 37 C.F.R. § 11.104(a) (failing to keep his client reasonably


informed by, inter alia: (i) not informing Ms. Teague of the
Office Action received on her behalf in U.S. Trademark

12
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 60 of 227

Application No. 86/287,301 and by not informing her that he


had filed substitute specimens without confirming with her
whether the substitute specimens depicted her mark as used
in commerce, and/ or (ii) failing to inform his clients that their
trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them);

r. 37 C.F.R. § 11.115(a) (failing to hold property of a client or


third person that is in the lawyer's possession in connection
with a representation separate from the lawyer's own
property, by depositing fees paid in advance by clients for
trademark legal services and costs into his operating account);

s. 37 C.F.R. § ll.115(c) (failing to deposit into a client trust


account legal fees and expenses that have been paid in
advance, to be withdrawn by the practitioner only as fees are
earned or expenses incurred, by depositing fees paid in
advance by clients for trademark legal services and costs into
his operating account);

t. 37 C.F.R. § ll.303(a)(l) (knowingly making a false statement


of fact to a tribunal or failing to correct a false statement of
material fact previously made to the tribunal by the
practitioner by, inter alia: failing to inform the USPTO of the
potentially invalid applications and/ or registrations that
resulted from the filing of false or fraudulent specimens or
digitally altered marks);

u. 37 C.F.R. § ll.303(d) (failing, in an ex parte proceeding, to


inform the tribunal of all material facts known to the
practitioner that will enable the tribunal to make an informed
decision, even if the facts are adverse by, inter alia: directing
or allowing his employees to sign or forge his name to § 2(f)
declarations and file the § 2(f) declarations with the Office,
when (i) he knew that the Trademark Examining Attorneys
would rely on the declarations when examining trademark
applications and issuing registrations and/ or (ii) he knew or
should have known his employees did not have adequate
knowledge to aver, "The mark has become distinctive of the
goods/services through the applicant's substantially
exclusive and continuous use in commerce that the U.S.
Congress may lawfully regulate for at least the five years

13
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immediately before the date of this statement;"; failing, in an


ex parte proceeding, to inform the tribunal of all material facts
known to the practitioner that will enable the tribunal to make
an informed decision, even if the facts are adverse, by, inter
alia, failing to inform the USPTO of the potentially invalid
applications and/ or registrations that resulted from the filing
of false or fraudulent specimens or digitally altered marks);

v. 37 C.F.R. § 11.503(a) (failing to make reasonable efforts to


ensure that The Trademark Company had in effect measures
giving reasonable assurance that its employees' conduct was
compatible with Respondent's professional obligations, as is
required by him as a partner or a person of comparable
managerial authority of The Trademark Company by, inter
alia: failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy);

w. 37 C.F.R. § 11.503(b) (failing to make reasonable efforts to


ensure that the conduct of The Trademark Company
employees over whom he had direct supervisory authority
was compatible with Respondent's professional obligations
by, inter alia: failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy);

x. 37 C.F.R. § 11.503(c) (ordering or ratifying the conduct of the


employees of The Trademark Company which would have
been a violation of the USPTO Rules of Professional Conduct
had it been committed by a practitioner, and/ or failing to take
remedial measures once he learned of the conduct by, inter

14
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 62 of 227

alia: (i) failing to adequately supervise his employees or


adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, (ii) failing to inform his clients that
their trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them,
and/ or (iii) failing to inform the USPTO of the potentially
invalid applications and/ or registrations that resulted from
the filing of false or fraudulent specimens or digitally altered
marks);

y. 37 C.F.R. § 11.504(a) (sharing legal fees with a non-


practitioner by paying employees non-discretionary monthly
bonuses tied to the proceeds generated by the trademark legal
services provided to applicants with whom they interacted);

z. 37C.F.R.§11.505 (assisting other persons in the unauthorized


practice of law before the USPTO by, inter alia: (i) directing or
allowing his employees to prepare, sign, and file trademark
applications, responses to Office Actions, and other
trademark documents; directing or allowing his employees to
provide legal advice and guidance to trademark applicants;
and/ or directing or allowing his employees to communicate
with his clients about trademark search reports and opinions,
without his involvement or supervision; and/ or (ii) not
reviewing trademark applications and other trademark
documents (e.g., responses to Office Actions) prepared and
filed by his employees before they were filed with the Office);

aa. 37 C.F.R. § 11.701 (making false or misleading


communications about the practitioner or the practitioner's
services by, inter alia: advertising on The Trademark
Company's website that trademark applications would be
prepared by an attorney when Respondent knew that
trademark applications were not prepared or reviewed by an
attorney prior to being filed with the USPTO);

15
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bb. 37 C.F.R. §11.SOl(b) (failing to respond to lawful requests for


information and failing to cooperate with OED by inter alia: (i)
telling a witness not to talk to OED; (ii) falsely telling potential
witnesses that talking to OED could affect their trademark
rights; (iii) withholding the names of former employees for
months; and/ or (iv) not providing OED with the documents
it sought (invoices, employment agreements, correspondence
about§ 2(£) declarations, and/ or a privilege log));

cc. 37 C.F.R. § ll.804(c) (engaging in conduct involving


dishonesty, fraud, deceit, or misrepresentation by, inter alia:
not informing clients who purchased trademark legal services
from The Trademark Company that their applications and
other trademark documents were not prepared or reviewed
by an attorney prior to being filed with the Office; engaging
in conduct involving dishonesty, fraud, deceit, or
misrepresentation by, inter alia: (i) not personally
electronically signing trademark applications and trademark
documents filed with the USPTO and, instead, directing or
allowing his employees to sign or forge his electronic
signature to the documents, thereby misleading the USPTO,
his clients, and the public into believing that Respondent had
actually signed the trademark application or trademark
document; and/ or (ii) not affirmatively informing the
Trademark Examining Attorney that the actual signatory, the
employee, was not identified on the document; engaging in
conduct involving dishonesty, fraud, deceit, or
misrepresentation by, inter alia: directing or allowing his
employees to sign or forge his name to § 2(£) declarations and
file the § 2(f) declarations with the Office, when (i) he knew
that the Trademark Examining Attorneys would rely on the
declarations when examining trademark applications and
issuing registrations, and/ or (ii) he knew or should have
known his employees did not have adequate knowledge to
aver, "The mark has become distinctive of the goods/ services
through the applicant's substantially exclusive and
continuous use in commerce that the U.S. Congress may
lawfully regulate for at least the five years immediately before
the date of this statement;" engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation, by, inter alia:
(i) failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images

16
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 64 of 227

of marks that did not depict the actual mark as used in


commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, (ii) failing to inform his clients that
their trademark registrations or applications were potentially
invalid and/ or take timely and effective remedial action on
their behalf and/ or offer or provide restitution to them,
and/ or (iii) failing to inform the USPTO of the potentially
invalid applications and/ or registrations that resulted from
the filing of false or fraudulent specimens or digitally altered
marks; engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation by, inter alia: (i) not informing
clients who purchased trademark legal services from The
Trademark Company that their applications and other
trademark documents were not prepared or reviewed by an
attorney prior to being filed with the Office; and/ or (ii)
collecting fees from clients for trademark legal services that
were supposed to be performed by an attorney when their
applications and other trademark documents were not
prepared or reviewed by an attorney prior to being filed with
the Office; engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation by, inter alia, falsely telling
potential witnesses that talking to OED could affect their
trademark rights);

dd. 37 C.F.R. § 11.804(d) (engaging in conduct prejudicial to the


administration of justice by, inter alia: (i) directing or allowing
his employees to prepare, sign, and file trademark
applications, responses to Office Actions, and other
trademark documents; directing or allowing his employees to
provide legal advice and guidance to trademark applicants;
and/ or directing or allowing his employees to communicate
with his clients about trademark search reports and opinions,
without his involvement or supervision; and/ or (ii) not
reviewing trademark applications and other trademark
documents (e.g., responses to Office Actions) prepared and
filed by his employees before they were filed with the Office;
engaging in conduct prejudicial to the administration of
justice by, inter alia: (i) failing to comply with the USPTO's
electronic signature rules by not personally electronically
signing trademark applications and trademark documents

17
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filed with the USPTO and, instead, directing or allowing his


employees to sign or forge his electronic signature to the
documents, which resulted in the validity of registered
trademarks being jeopardized and/ or (ii) directing or
allowing his employees to sign or forge his electronic
signature to trademark applications and other trademark
documents knowing that the actual signatory, the employee,
was not identified on the documents contrary to
Respondent's certifications under § 11.18; engaging in
conduct that is prejudicial to the administration of justice by,
inter alia: directing or allowing his employees to sign or forge
his name to § 2(f) declarations and file the § 2(f) declarations
with the Office, when (i) he knew that the Trademark
Examining Attorneys would rely on the declarations when
examining trademark applications and issuing registrations,
and/ or (ii) he knew or should have known his employees did
not have adequate knowledge to aver, "The mark has become
distinctive of the goods/services through the applicant's
substantially exclusive and continuous use in commerce that
the U.S. Congress may lawfully regulate for at least the five
years immediately before the date of this statement;" and/ or
(iii) he knew that (a) the actual signatory, the employee, was
not identified on the document and (b) the actual signatory,
the employee, did not have the knowledge to support the
factual contentions found in the declaration; engaging in
conduct that is prejudicial to the administration of justice by,
inter alia: (i) failing to adequately supervise his employees or
adequately review their work, thus permitting them to create
false or fraudulent specimens and/ or digitally altered images
of marks that did not depict the actual mark as used in
commerce and file these specimens with the Office, and as a
result, in some cases, the USPTO issued trademark
registrations based on the false or fraudulent specimens or
digitally altered marks, putting the validity of the resulting
trademarks in jeopardy, and/ or (ii) failing to inform the
USPTO of the potentially invalid applications and/ or
registrations that resulted from the filing of false or
fraudulent specimens or digitally altered marks; engaging in
conduct prejudicial to the administration of justice by, inter
aliri: (i) telling a witness not to talk to OED; (ii) falsely telling
potential witnesses that talking to OED could affect their
trademark rights; (iii) withholding the names of former
employees for months; and/ or (iv) not providing OED with

18
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 66 of 227

the documents it sought (invoices, employment agreements,


correspondence about § 2(f) declarations, and/ or a privilege
log));

ee. 37 C.F.R. § 11.804(i) (engaging in any other conduct that


adversely re£1ects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count I of the Complaint, to the extent that the conduct does
not otherwise violate another provision of the USPTO Rules
of Professional Conduct; engaging in any other conduct that
adversely refiects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count II of the Complaint, to the extent that the conduct does
not otherwise violate another provision of the USPTO Rules
of Professional Conduct; engaging in any other conduct that
adversely refiects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count III of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Rules of
Professional Conduct; engaging in any other conduct that
adverse] y refiects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count IV of the Complaint to the extent that his conduct does
not otherwise violate a provision of the USPTO Code of
Professional Responsibility; engaging in any other conduct
that adversely refiects on the practitioner's fitness to practice
before the Office, by engaging in the conduct referenced in
Count V of the Complaint, to the extent that the conduct does
not otherwise violate another provision of the USPTO Rules
of Professional Conduct; other conduct that adversely refiects
on the practitioner's fitness to practice before the Office, by
engaging in the acts and omissions described in Count VIII
above).

3. Without admitting that he violated any of the Disciplinary Rules of the USPTO

Code of Professional Responsibility and/ or the Rules of Professional Conduct which are

the subject of the disciplinary complaint in Proceeding No. D2016-20, he acknowledges

that, if and when he applies for reinstatement to practice before the USPTO in trademark

or other non-patent matters under 37 C.F.R. § 11.60, the OED Director will conclusively

19
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 67 of 227

presume, for the limited purpose of determining the application for reinstatement, that

(a) the allegations regarding him in the complaint filed in Proceeding No. D2016-20 are

true and (b) he could not have successfully defended himself against such allegations.

4. He has fully read and understands 37 C.F.R. §§ 11.5(b), 11.27, 11.58, 11.59, and

11.60, and is fully aware of the legal and factual consequences of consenting to exclusion

from practice before the USPTO in trademark and non-patent matters.

5. He consents to being excluded from practice before the USPTO in trademark

and non-patent matters.

Exclusion on Consent

Based on the foregoing, the USPTO Director has determined that Respondent's

Affidavit For Consent Exclusion complies with the requirements of 37 C.F.R. § 11.27(a).

Accordingly, it is hereby ORDERED that:

1. Respondent's Affidavit For Consent Exclusion shall be, and hereby is,

approved;

2. Respondent shall be, and hereby is, excluded on consent from practice

before the Office in trademark and non-patent matters commencing on the date of this

Final Order;

3. The OED Director shall electronically publish the Final Order at the Office

of Enrollment and Discipline's electronic FOIA Reading Room, which is publicly

accessible at http://e-foia.uspto.gov/Foia/ OEDReadingRoom.jsp;

4. The OED Director shall publish a notice in the Official Gazette that is

materially consistent with the following:

20
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 68 of 227

Notice of Exclusion on Consent

This notice concerns Matthew H. Swyers of Vienna, Virginia, an


attorney licensed to practice law in the Commonwealth of Virginia
and the District of Columbia and practicing before the United States
Patent and Trademark Office ("USPTO" or "Office) in trademark
matters. The Director of the USPTO has accepted Mr. Swyers'
affidavit for consent exclusion and ordered his exclusion on consent
from practice before the Office in trademark and non-patent matters.

Mr. Swyers voluntarily submitted his affidavit at a time when a


disciplinary complaint was pending against him. The complaint
alleged that Mr. Swyers, an experienced trademark lawyer and
former USPTO Trademark Examining Attorney, established The
Trademark Company, PLLC, and through that business
systematically permitted non-attorneys to practice trademark law
for him with little or no supervision. The complaint alleged that Mr.
Swyers, the sole attorney at the company, did not personally review
or sign thousands of trademark applications and related documents
(including statements of use, § 2(f) declarations, and responses to
Office actions) prepared by his non-lawyer employees and filed with
the USPTO, in violation of USPTO signature and certification rules
and despite assurances on the company website that trademark
applicants would be represented by a specialized attorney. Further,
the complaint alleged that, as a result of Mr. Swyers' failure to
supervise his employees, multiple fraudulent or digitally
manipulated specimens of use were filed with the Office, which
potentially jeopardized the trademark applications of his clients. The
complaint also asserted that Mr. Swyers failed to deposit client funds
paid in advance into a client trust account and improperly split legal
fees with his non-practitioner employees. Finally, the complaint
alleged that Mr. Swyers failed to respond to lawful requests for
information or cooperate with the investigation conducted by the
Office of Enrollment and Discipline.

Mr. Swyers' affidavit acknowledged that the disciplinary complaint


filed against him alleged that his conduct violated the following
provisions of the USPTO Code of Professional Responsibility, for
conduct prior to May 3, 2013: 37 C.F.R. §§ 10.23(a) (engaging in
disreputable or gross misconduct); 10.23(b)(4) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation);

21
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 69 of 227

10.23(b)(5) (engaging in conduct prejudicial to the administration of


justice); 10.23(a) and (b) via 10.23(c)(2)(ii) (knowingly giving false or
misleading information or knowingly participating in a material
way in giving false or misleading information to the USPTO or any
employee of the USPTO); 10.23(a) and (b) via 10.23(c)(15) (violating
the certifications made to the USPTO under 37 C.F.R. § 11.18);
10.31(a) (deceiving or misleading prospective applicants or other
persons having immediate or prospective business before the Office
by advertising with respect to prospective business before the
Office); 10.47(a) and (c) (aiding a non-practitioner in the
unauthorized practice of law before the Office); 10.48 (sharing legal
fees with a non-practitioner); 10.77(b) (handling a legal matter
without preparation adequate under the circumstances); 10.77(c)
(neglecting client matters); 10.84(a)(1) (intentionally failing to seek
the lawful objectives of a client); 10.84(a)(3) (intentionally
prejudicing or damaging the client during the course of a
professional relationship); 10.89(c)(6) (intentionally or habitually
violating any provision of the USPTO Code of Professional
Responsibility while appearing in a professional capacity before a
tribunal); 10.112(a) (failing to deposit legal fees paid in advance into
a separate client trust account); and 10.23(b)(6) (engaging in other
conduct that adversely reflects on the practitioner's fitness to
practice before the Office).

Mr. Swyers's affidavit also acknowledged that the disciplinary


complaint alleged that his conduct violated the following provisions
of the USPTO Rules of Professional Conduct, for conduct on or after
May 3, 2013: 37 C.F.R. §§ 11.101 (failure to provide competent
representation); 11.104(a)(3) (failing to keep the clients reasonably
informed about the status of a matter); 11.115(a) (failing to hold
property of a client or third person that is in the lawyer's possession
in connection with a representation separate from the lawyer's own
property); 11.115(c) (failing to deposit into a client trust account legal
fees and expenses that have been paid in advance, to be withdrawn
by the practitioner only as fees are earned or expenses incurred);
11.303(a)(1)(knowingly making a false statement of fact to a tribunal
or failing to correct a false statement of material fact previously made
to the tribunal); 11.303( d) (failing, in an ex parte proceeding, to inform
the tribunal of all material facts known to the practitioner that will
enable the tribunal to make an informed decision, even if the facts
are adverse); 11.503(a) (failing to make reasonable efforts to ensure
that The Trademark Company had in effect measures giving
reasonable assurance that its employees' conduct was compatible

22
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 70 of 227

with Respondent's professional obligations); 11.503(b) (failing to


make reasonable efforts to ensure that the conduct of The Trademark
Company employees over whom he had direct supervisory
authority was compatible with Respondent's professional
obligations); 11.503(c) (ordering or ratifying the conduct of the
employees of The Trademark Company which would have been a
violation of the USPTO Rules of Professional Conduct had it been
committed by a practitioner, and/ or failing to take remedial
measures once he learned of the conduct); 11.504(a) (sharing legal
fees with a non-practitioner); 11.505 (aiding in the unauthorized
practice of law before the USPTO); 11.701 (making false or
misleading communications about the practitioner or the
practitioner's services); 11.801 (b) (failing to cooperate with the Office
of Emollment and Discipline in an investigation); 11.804(c)
(engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation); 11.804(d) (engaging in conduct that is prejudicial
to the administration of justice); and 11.804(i) (engaging in the acts
and omissions that adversely reflect on Respondent's fitness to
practice before the Office).

While Mr. Swyers did not admit to violating any of the Disciplinary
Rules of the USPTO Code of Professional Responsibility or the
USPTO Rules of Professional Conduct as alleged in the pending
disciplinary complaint, he acknowledged that, if and when he
applies for reinstatement, the OED Director will conclusively
presume, for the limited purpose of determining the application for
reinstatement, that (i) the allegations set forth in the OED
investigation against him are true, and (ii) he could not have
successfully defended himself against such allegations.

This action is taken pursuant to the provisions of 35 U.S.C.


§§ 2(b)(2)(D) and 32, and 37 C.F.R. §§ 11.27 and 11.59. Disciplinary
decisions involving practitioners are posted for public reading at the
Office of Enrollment and Discipline Reading Room, available at:
http://go.usa.gov/x9rhg.

5. Respondent shall comply fully with 37 C.F.R. § 11.58; and

23
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 71 of 227

6. Respondent shall comply fully with 37 C.F.R. § 11.60 upon any request for

reinstatement.

~
David Shewchuk
Deputy General Counsel for General Law
'2~ 1~11
Date
20\ l

United States Patent and Trademark Office

on behalf of

Michelle K. Lee
Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office

cc:

Director of the Office of Emollment and Discipline


U.S. Patent and Trademark Office

Danny M. Howell
Robert Jackson Martin IV
Anne M. Sterba
Law Office of Danny M. Howell, PLLC
2010 Corporate Ridge, Suite 700
Mclean, VA 22102
Counsel for Matthew H. Swyers

24
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 72 of 227

EXHIBIT​ ​I
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 73 of 227

UNITED STATES PATENT AND TRADEMARK OFFICE


BEFORE THE DIRECTOR
OF THE UNITED STATES PATENT AND TRADEMARK OFFICE

In the Matter of )
)
Tracy W. Druce, )
) Proceeding No. D2014-13
Respondent )
)

FINAL ORDER

The Director of the Office of Enrollment and Discipline ("OED Director") for the United
States Patent and Trademark Office ("USPTO" or "Office") and Tracy W. Druce ("Respondent")
have submitted a Proposed Settlement Agreement ("Agreement") to the Under Secretary of
Commerce for Intellectual Property and Director of the United States Patent and Trademark
Office ("USPTO Director") for approval.

The Agreement, which resolves all disciplinary action by the USPTO arising from the
stipulated facts set forth below, is hereby approved. This Final Order sets forth the parties'
stipulated facts, legal conclusion, and agreed upon sanction.

Jurisdiction

1. At all times relevant hereto, Respondent of Houston, Texas, was a registered


patent attorney (Registration No. 35,493) and was subject to the USPTO Code of Professional
Responsibility, which is setforth at 37 C.F.R. § 10.20 et seq]

2. The USPTO Director has jurisdiction over this matter pursuant to 35 U.S.C.
§§ 2(b)(2)(D) and 32 and37 C.F.R. §§ 11.19 and 11.26.

Stipulated Facts

3. The USPTO registered Respondent as a patent attorney on March 24, 1992.

4. Respondent's registration number is 35,493.

5. In 2004, Respondent established a law firm, Novak Druce LLP.

6. In 2005, Noval, Druce LLP became Novak, Druce & Quigg LLP.

1 The USPTO Code of Professional Responsibility applies to Respondent's alleged misconduct


that OCCUlTed prior to May 3, 2013. The USPTO Rules of Professional Conduct, 37 C.F.R.
§ 11.101 et seq., apply to it practitioner's misconduct occufl'ing after May 2,2013.
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 74 of 227

7, At all times relevant to this Agreement, anon-lawyer assistant,


worked for Respondent at Novak Druce LLP and Novak, Druce & Quigg LLP from 2004
through late 2006, hereinafter referred to as "the non-lawyer assistant,")

8, At all relevant times, Respondent was responsible for the supervision of the
non-lawyer assistant.

9, From at least 2004 through 2006, the non-lawyer assistant submitted, with intent
to deceive, knowingly false statements to the Office in many patent applications that Respondent
was responsible for prosecuting on behalf of clients,

10, The non-lawyer assistant submitted the following types offalse statements to the
Office in patent applications that Respondent was responsible for prosecuting:

a, fabricating email COnfilnlation messages and submitting the fabricated emails


to the Office as evidence that papers had been sent to the Office via facsimile
transmission when, in fact, the papers were never sent to the Office;

b, affixing USPTO receipt stamps to postcards and submitting the doctored


postcard receipts to the Office as evidence that the Office had received papers
when, in fact, the papers were never sent to the Office;

c, fabricating a United States Postal Service Express Mail label that falsely
represented a patent application had been mailed to the Office on a certain
date when, in fact, the application had never been sent to the Office; and

d, backdating certificates of mailing that falsely represented that papers had been
mailed to the Office weeks and/or months earlier than they actually had been
sent.

11. Additionally, the non-lawyer assistant signed Respondent's signature to papers


filed with the Office in many patent applications that Respondent was responsible for
prosecuting on behalf of clients, .

12, Additionally, the non-lawyer assistant electronically "cut and pasted" a digital
version of Respondent's signature and affixed it to papers filed with the Office in many patent
applications that Respondent was responsible for prosecuting on behalf of clients,

13, Additionally, the non-lawyer assistant prepared petitions; signed Respondent's


name to the petitions and/or affixed a digital version of Respondent's signature to the petitions;
and filed the petitions in the Office,

2
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 75 of 227

14. Respondent knew that the non-lawyer assistant had signed Respondent's name to
application papers submitted to the Office in many patent applications that Respondent was
responsible for prosecuting on behalf of clients.

15. The non-lawyer assistant represented in a declaration that he engaged in the'


misconduct described in paragraphs 9-12, above, without Respondent's lmowledge.

16. Respondent represents that he did not know of the non-lawyer assistant's
misconduct described in paragraphs 9-12, above, and the non-lawyer assistant represents that he
acted alone and kept his misconduct secret from Respondent.

17. Respondent acJmowledges he did not adequately supervise the non-lawyer


assistant's activities.

18. Previously, Respondent completed and returned to the OED Director the USPTO
Mandatory Survey (Form PTO 107S) issued under 37 C.F.R. § 11.1 1(a)(2). Respondent
indicated on the survey that he did not wish to remain on the register of registered practitioners
(37 C.F.R. § 11.5), and the OED Director removed Respondent from the register. Accordingly,
ptlrsuant to 37 C.F.R. § 11.10(a), Respondent is not permitted to prosecute patent applications of
others before the Office or represent others in any proceedings before the Office unless and until
he is reinstated to the register.

Joint Legal Conclusion

19. Respondent aclmowledgeS' that, based on the above stipulated facts, he violated
37 C.F.R. § 1O.77(c) (a practitioner shall not neglect a legal matter entrusted to the practitioner)
by not adequately supervising his non-lawyer assistant.

Agreed Upon Sanction

20. Respondent agrees, and it is hereby ORDERED that:

a. If Respondent seeks reinstatement to the Office's register of practitioners under


37 C.F.R. § 11.7, Respondent shall be suspended from practice before the Office
in patent, trademark, and other non-patent matters for twenty-four (24) months
commencing on the date that a request for Respondent's reinstatement to the
re gister is granted;

b. The 24-month suspension, which is contingent upon Respondent seeking and


being granted reinstatement, shall be stayed;

c. Respondent shall serve a twenty-four (24) month period of probation commencing


on the date that a request for Respondent's reinstatement to the register is granted;

3
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 76 of 227

d. Respondent shall be permitted to practice before the USPTO in patent, trademark,


and other non-patent matters during his probationary period unless his probation
is revoked and he is suspended by order of the USPTO Director or otherwise no
longer has the authority to practice;

e. When and if Respondent seeks reinstatement pursuant to 37 C.F.R. § 11.7, the


present disciplinary proceeding will not be a basis for barring his reinstatement
provided that Respondent complies with the terms of the Final Order;

f. Respondent shall provide certain information to certain present and former


client(s) as set forth in subparagraphs i. through aa., below;

g. Respondent shall use his best efforts to identifY each patent application that
Respondent prosecuted before the Office at any time between January 1,2004,
and December 31, 2006, that meet all of the following three conditions:

(1) The Office received between January 1,2004, and December31,


2006, any of the following: (i) a petition to revive an abandoned application, (ii) a
petition to withdraw the holding of abandomnent; and/or (iii) a petition for
extension of time where the petition for extension of time was transmitted to the
Office by the non-lawyer assistant and where the petition for extension of time's
transmittal date preceded the Office's receipt date by more than thirty (30) days;

(2) The non-lawyer assistant transmitted any paper in the application


to the Office at any time between January 1,2004, and December 31, 2006; and

(3) The Office issued a patent on the application at any time;

h. For each patent application identified by Respondent pursuant to the preceding


subparagraph, Respondent shall identify the present client(s) and former client(s)
for whom patent legal services on the application were performed;

i. For each present and former client(s) identified by Respondent pursuant to the
preceding subparagraph, Respondent shall provide each such present and former
client(s) with the following documents:

(1) A copy of the Apri110, 2014 declaration executed by the


non-lawyer assistant with the patent application serial numbers redacted; and

(2) A copy of the redacted Final Order;

j. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent

4
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 77 of 227

Application No _ _ of the specific false statements described in


~ 14 of the April 10, 2014 declaration;2

k. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent repres'ented in connection with
U.S. Patent Application No. _ o f the specific potentially false
statements described in ~ 15 of the April 10, 2014 declaration;

Application N 0._
1. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
of the specific potentially false statements described
in ~ 15 of the April! 0,2014 declaration;

m. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application No._ofthe specific potentially false statements described
in ~ 15 of the April 10, 2014 declaration;

n. Respondent shall also provide unambiguous written notification to the present and
former client(s) ~dent represented in connection with U.S. Patent
Application N o . _ of the specific potentially false statements described
in ~ 15 of the April 10, 2014 declaration;

o. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application No. _ o f the specific potentially false statements described
in ~ 15 of the April 10, 2014 declaration;

p. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application No._ofthe specific potentially false statements described
in ~ 16 of the April 10, 2014 declaration and the potential backdating of
certificates of mailing described in ~ 17 of the Apri110, 2014 declaration;

q. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application No. _ o f the potential backdating of certificates of mailing
described in ~ 17 of the April 10, 2014 declaration; ,

r. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent

2~application serial number identified in ~ 14~ 10,2014 declaration as


" _ " is incorrect. The correct serial number i s _

5
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 78 of 227

Application No, _ o f the potential backdating of certificates of mailing


described in 'If 17 of the April 10, 2014 declaration;

s, Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U,S, Patent
Application N o , _ o f t h e potential backdating of certificates of mailing
described in 'If 17 of the April 10, 2014 declaration;

t, Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in counection with U, S, Patent
Application N o , _ o f t h e potential backdating of certificates of mailing
described in 'If 17 of the Apri110, 2014 declaration;

u, Respondent shall also provide unambiguous written notification to the present and
fornier client(s) ~dent represented in connection with ofU,S, Patent
Application N o , _ o f t h e potential backdating of certificates of mailing
described in 'If 17 ofthe April 10, 2014 declaration;

v, Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U,S, Patent
Application No, _ o f the potential backdating of certificates of mailing
described in 'If 17 of the April 10, 2014 declaration;

w, Respondent shall also provide unambiguous written notification to the present and
former client(s) ~dent represented in counection with U,S, Patent
Application N o , _ of the potential backdating of certificates of mailing
described in 'If 17 ofthe April 10, 2014 declaration;

x, Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with ofU,S, Patent
Application No, _ o f the potential backdating of certificates of mailing
described in 'If 17 of the April 10, 2014 declaration; ,

y. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application No. _ o f the potential backdating of certificates of mailing
described in 'If 17 of the Apri110, 2014 declaration;

z. Respondent shall also provide unambiguous written notification to the present and
former client(s) that Respondent represented in connection with U.S. Patent
Application N o . _ o f t h e potential backdating of certificates of mailing
described in 'If 17 of the Apri110, 2014 declaration;3 ,

3 The patent application serial number identified in ~ 14 of the Apri110, 2014 declaration as
' _ ' is incorrect. The correct serial number i s _

6
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 79 of 227

aa. Respondent shall also provide unambiguous written notification to the present and
former client(s) ~dent represented in connection with U.S. Patent
Application N o . _ o f t h e potential backdating of certificates of mailing
described in ~ 17 of the April 10, 2014 declaration;

bb. Within 120 days of the day that the Final Order is signed, Respondent shall
submit the following to the OED Director: (1) an affidavit or declaration attesting
to his compliance with the terms of this Agreement and the Final Order for
notifying present and former client(s) as set forth in subparagraphs i. through aa.,
above, and (2) a copy of the correspondence to clients, including the written
notifications transmitted to the current and former client(s), evidencing his
compliance with the terms of this Agreement and the Final Order for notifying
present and former client(s); the client correspondence provided to the OED in
accordance with this subparagraph shall be marked "CONFIDENTIAL" by the
Respondent, and the OED shall keep the correspondence confidential;

cc. (1) lfthe OED Director is of the good faith opinion that Respondent, during
Respondent's probationary period, failed to comply with any provision of the
Agreement, this Final Order, or any provision of the USPTO Rules of
Professional Conduct, the OED Director shall:

.(A) Issue to Respondent an Order to Show Cause why the USPTO


Director should not enter an order immediately suspending Respondent for up
to twenty-four (24) months for the violation set forth in paragraph 19, above;

(B) Send the Order to Show Cause to Respondent at the last


address of record Respondent furnished to the OED Director pursuant to
. 37 C.F.R. § 11.11; and

(C) Grant Respondent thirty (30) days to respond to the Order to


Show Cause; and

(2) In the event that after the 3 O-day period for response and consideration of the
response, if any, received from Respondent, the OED Director continues to be of
the opinion·that Respondent, during Respondent's probationary period, failed to
comply with any provision of the Agreement, this Final Order, or any provision of
the USPTO Rilles of Professional Conduct, the OED Director shall:

(A) Deliver to the USPTO Director: (i) the Order to Show Cause;
(ii) Respondent's response to the Order to Show Cause, if any; and
(iii) argument and evidence causing the OED Director to be of the opinion that
Respondent, during Respondent's probationary period, failed to comply with
any provision of the Agreement, Final Order, or any provision of the USPTO
Rules of Professional Conduct; and

7
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 80 of 227

(B) Request that the USPTO Director enter an order immediately


suspending Respondent for up to twenty-four (24) months for the violation set .
forth in paragraph 19, above;

dd. Nothing herein shall prevent the OED Director from seeking discipline for the
misconduct leading to Respondent's suspension pursuant to the preceding
subparagraph;

ee. In the event the USPTO Director suspends Respondent pursuant to subparagraph
cc., above, and Respondent seeks a review of the suspension, any such review of
the suspension shall not operate to postpone or otherwise hold in abeyance the
suspension;

ff. The OED Director shall comply with 37 C.F.R. § 11.59 exceptthat.
and all patent application serial numbers shall be redacted
from the Final Order.

gg. The OED Director shall electronically publish the Final Order at the Office of
Enrollment and Discipline's electronic ForA Reading Room, which is publicly
accessible at http://e-foia.uspto. govlFoialOEDReadingRoom.jsp;

hh. The OED Director shall publish a notice in the Official Gazette that is materially
consistent with the following:

Notice of Discipline

This notice concerns Tracy W. Druce of Houston, Texas (Registration No.


35,493), who previously left the United States Patent and Trademark Office
("USPTO" or "Office") register of practitioners. The USPTO Director has
ordered that, if Mr. Druce is reinstated to the register of practitioners, then he
shall be suspended from practice before the Office in patent, trademark, and
other non-patent matters for twenty-four (24) months, with the entirety of the
suspension stayed, for violating 37 C.F.R. § 10.77(c) (a practitioner shall not
neglect a legal matter entrusted to the practitioner), Mr . .Druce wi11 also be
required to serve a twenty-four (24) month period of probation upon being
reinstated to the register ..

Mr. Druce was responsible for the supervision of a non-lawyer


assistant who, from at least 2004 through 2006, submitted, with intent
to deceive, knowingly false statements to the Office in many patent
applications that Mr, Druce was responsible for prosecuting on behalf
of clients. The non-lawyer assistant did the following: (1) fabricated
email confirmation messages and submitted the fabricated emails to
the Office as evidence that papers had been sent to the Office via
facsimile transmission when, in fact, the papers were never sent to the

8
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 81 of 227

Office; (2) affixed USPTO receipt stamps to postcards and submitted


the doctored postcard receipts to the Office as evidence that the Office
had received papers when, in fact, the papers were never sent to the
Office; (3) fabricated a United States Postal Service Express Mail label
that falsely represented that a patent application had been mailed to the
Office on a certain date when, in fact, the application had never been
sent to the Office; and (4) backdated certificates of mailing that falsely
represented that papers had beep mailed to the Office weeks and/or
months earlier than they actually had been sent.

The violation of37 C.F.R. § 10.77(c) is predicated upon Mr. Druce


not adequately supervising a non-lawyer assistant.

Mr. Druce represents that he did not have actual knowledge of the
non-lawyer assistant's false submissions to the Office, and the non-
lawyer assistant represents that he acted alone and kept his misconduct
secret from Mr. Druce.

In reaching a settlement with Mr. Druce, OED Director took into


consideration the following: (a) the non-lawyer assistarit's misconduct
occurred many years ago in 2004, 2005, and 2006; (b) Mr. Druce
cooperated with the investigation of the facts and circumstances
involved in this disciplinary proceeding; and (c) Mr. Druce will take
prompt action to notify present and former clients about the
misconduct committed in patent applications where patents were
granted.

This action is the result of a settlement agreement between Respondent


and the OED Director pursuant to the provisions of 35 U.S.C.
§§ 2(b)(2)(D) and 32 and 37 C.F.R. §§ 11.26 and 11.59. Disciplinary
decisions involving practitioners are posted for public reading at the
Office of Enrollment and Discipline Reading Room, available at:
http://e-foia.uspto.gov/Foia/OEDReadingRoom.jsp.

ii. Nothing in this Agreement or the Final Order approving this Agreement shall
prevent the Office from considering the record of this disciplinary proceeding (1)
when addressing any further complaint or evidence of the same or similar
misconduct concerning Respondent brought to the attention of the Office; andlor
(2) in any future disciplinary proceeding against Respondent (a) as an aggravating
factor to be taken into consideration in determining any discipline to be imposed
andlor (b) to rebut any statement or representation by or on Respondent's behalf;

jj. The OED Director shall file a motion with the administrative law judge requesting
the dismissal of the pending disciplinary proceeding within fourteen (14) days of
the date ofthe Final Order; and

9
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 82 of 227

Ide The OED Director and Respondent shall each bear their own costs incurred to date
and in carrying out the terms of this Agreement and the Final Order.

The foregoing is understood and agreed to by:

SEP - 5 20H
Wi JAMES O. PAYNE Date
Deputy General Counsel for General Law
United States Patent and Trademark Office

on behalf of

Michelle K.. Lee


Deputy Under Secretary of Commerce for Intellectual Property
and Deputy Director of the United States Patent and Trademark Office

cc: Director ofthe Office of Enrollment and Discipline


United States Patent and Trademark Office

Abbe David Lowell


Chadbourne & Parke LLP
30 Rockefeller Plaza, New York, NY 10112
Respondent's Counsel

Christopher Man
Chadbourne & Parke LLP
1200 New Hampshire Ave N.W., Washington, DC 20036
Respondent's Counsel

10
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 83 of 227

EXHIBIT​ ​J
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 84 of 227

UNITED STATES PATENT AND TRADEMARK OFFICE


BEFORE THE DIRECTOR OF THE
UNITED STATES PATENT AND TRADEMARK OFFICE

In the Matter of: )


)
Leonard Tachner, ) Proceeding No. D20l4-22
)
Respondent )
)

FINAL ORDER

Pursuant to 37 C.F.R. § l1.27(b), the Director of the United States Patent and Trademark

Office ("USPTO" or "Office") received for review and approval from the Director of the

Office of Emollment and Discipline ("OED Director") an Affidavit of Resignation Pursuant to

37 C.F.R. § 11.27 executed by Leonard Tachner ("Respondent") on June 2, 2014. Respondent

submitted the affidavit to the USPTO for the purpose of being excluded on consent pursuant to

37 C.F.R. § 11.27.

For the reasons set forth herein, Respondent's Affidavit of Resignation shall be approved

and Respondent shall be excluded on consent from practice before the Office in patent,

trademark, and other non-patent matters commencing on the date of this Final Order.

Jurisdiction

Respondent of San Jose, California, is a registered patent attorney (Reg. No. 26,344) and

is subject to the USPTO Rules of Professional Conduct, 37 C.F.R. § 11.101, et seq.

See 37 C.F.R. § 11.19(a).!

Pursuant to 35 U.S.C. §§ 2(b)(2)(D) and 32 and 37 C.F.R. § 11.27, the USPTO Director

has the authority to approve Respondent's Affidavit of Resignation and to exclude Respondent

1 The USPTO Code of Professional Responsibility applies to practitioner misconduct


that occurred prior to May 3, 2013, while the USPTO Rules of Professional Conduct,
37 C.F.R. § 11.101 et seq., apply to a practitioner misconduct that occurred after May 2, 2013.
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 85 of 227

on consent from practice before the Office in patent, trademark, and other non-patent matters

before the Office.

Respondent's Affidavit of Resignation

Respondent acknowledges in his June 2, 2014 Affidavit of Resignation that:

I. His consent is freely and voluntarily rendered, and he is not being subjected to

coercion or duress.

2. He is aware that the OED Director opened an investigation of allegations that

that he violated the USPTO Rules of Professional Conduct, namely: OED File No. G2239. The

investigation concerned allegations, inter alia, that:

a. By Final Order dated April 12, 2013, Respondent was suspended for five years
from the practice of patent, trademark and other non-patent matters before the
USPTO for neglecting patent matters by allowing patents to expire for not timely
paying maintenance fees, fora failing to inform clients of important USPTO
correspondence and giving misleading information to clients about the status of
their patents. He also failed to conduct an inquiry reasonable under the
circumstances prior to signing and filing certain submissions with the USPTO;

b. By Final Order dated April 12,2013, Respondent was granted limited recognition
to practice before the USPTO commencing on the date the Final Order and
expiring thirty (30) days after the date the Final Order is signed, with such limited
recognition being granted for the sole purpose of facilitating Respondent's
compliance with the provisions of37 C.F.R. § 11.58(b).

c. Respondent engaged in the unauthorized practice oflaw in the prosecution of U.S.


Trademark application nos. 85/906,074 and 85/906,085 by representing clients
before the USPTO while he was not authorized to do so; and

d. Respondent did not inform his clients or the trademark examiner in U.S.
Trademark application nos. 85/906,074 and 85/906,085 that he was not authorized
to represent the clients before the USPTO.

3. He is aware that the disciplinary complaint pending against him alleges that he

violated the following provisions of the USPTO Rules of Professional Conduct:

a. 37 C.F.R. § l1.804(a) (proscribing engaging in conduct that is a violation ofthe


USPTO Rules of Professional Conduct);

2
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 86 of 227

b. 37 C.F.R. § 11.804(c) (proscribing engaging in conduct involving dishonesty,


fraud, deceit, or misrepresentation);

c. 37 C.F.R. § 11.804(d) (proscribing engaging in conduct that is prejudicial to the


administration of justice); and

d. 37 C.F.R. § 11.505 (proscribing the unauthorized practice oflaw).

4. Without admitting to any of the allegations at issue in the pending

disciplinary investigation or to violating any of the USPTO Rules of Professional Conduct,

Respondent acknowledges that, if and when he applies for reinstatement under 37 C.F.R. §

11.60, the OED Director will conclusively presume, for the purpose of determining the

application for reinstatement, that (a) the allegations set forth in OED File No. G2239 and

USPTO disciplinary proceeding D2014-22 are true and (b) he could not have successfully

defended himself against such allegations.

5. Respondent has fully read and understands 37 C.F.R. §§ I 1.5 (b), 11.27,

11.58, 11.59, and 11.60, and is fully aware of the legal and factual consequences of

consenting to exclusion from practice before the USPTO in patent, trademark, and other

non-patent matters.

6. He consents to being excluded from practice before the USPTO in

patent, trademark, and other non-patent matters.

Exclusion on Consent

Based on the foregoing, the USPTO Director has determined that Respondent's

Affidavit of Resignation complies with the requirements of37 C.F.R. § 11.27(a). Hence, it

is ORDERED that:

a. Respondent's Affidavit of Resignation shall be, and hereby is, approved;

b. Respondent shall be, and hereby is, excluded on consent from practice before

3
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 87 of 227

the Office in patent, trademark, and other non-patent matters commencing on the date of this

Final Order;

c. The OED Director shall electronically publish this Final Order at the Office

of Emollment and Discipline's electronic ForA Reading Room, which is publicly accessible

at http://e-foia.uspto.govlFoialOEDReadingRoom.jsp;

d. The OED Director shall publish the following notice in the Official

Gazette:

Notice of Exclusion on Consent

This notice concerns Leonard Tachner of San Jose California, a registered


patent attorney (Reg. No. 26,344). The Director of the United States Patent
and Trademark Office ("USPTO" or "Office") has accepted Mr. Tachner's
affidavit of resignation and ordered his exclusion on consent from practice
before the Office in patent, trademark, and other non-patent matters.

Mr. Tachner voluntarily submitted his affidavit at a time when a disciplinary


investigation was pending against him. The investigation concerned
allegations, inter alia, that;
a) By Final Order dated April 12,2013, Respondent was suspended for five
years from the practice of patent, trademark and other non-patent matters
before the USPTO for neglecting patent matters by allowing patents to expire
for not timely paying maintenance fees, for failing to inform clients of
important USPTO correspondence and giving misleading information to
clients about the status of their patents. He also failed to conduct an inquiry
reasonable under the circumstances prior to signing and filing certain
submissions with the USPTO;
b) By Final Order dated April 12, 2013, Respondent was granted limited
recognition to practice before the USPTO commencing on the date the Final
Order and expiring thirty (30) days after the date the Final Order is signed,
with such limited recognition being granted for the sole purpose offacilitating
Respondent's compliance with the provisions of37 C.F.R. § 11.58(b).
c) Respondent engaged in the unauthorized practice of law in the prosecution
of U.S. Trademark application nos. 85/906,074 and 85/906,085 by
representing clients before the USPTO while he was not authorized to do so;
and
d) Respondent did not inform his clients or the trademark examiner in U.S.
Trademark application nos. 85/906,074 and 85/906,085 that he was not
authorized to represent the clients before the USPTO.

4
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 88 of 227

The disciplinary investigation concerned allegations that Respondent violated


the following provisions of the USPTO Rules of Professional Conduct:
a. 37 C.F.R. § 11.804(a) (proscribing engaging in conduct that is a violation of
the USPTO Rules of Professional Conduct);
b. 37 C.F.R. § 11.804(c) (proscribing engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation);
c. 37 C.F.R. § 1l.804(d) (proscribing engaging in conduct that is prejudicial
to the administration of justice); and
d. 37 C.F.R. § 11.505 (proscribing the unauthorized practice oflaw).

While Mr. Tachner did not admit to any ofthe allegations at issue in the
pending disciplinary investigation or to violating any of the Disciplinary Rules
of the USPTO Code of Professional Conduct, he acknowledged that, if and
when he applies for reinstatement, the OED Director will conclusively
presume, for the purpose of determining the application for reinstatement, that
(i) the allegations set forth in OED File No. G2239 and USPTO disciplinary
proceeding D2014-22 are true, and (ii) he could not have successfully
defended himself against such allegations.

This action is taken pursuant to the provisions of35 U.S.C. §§ 2(b)(2)(D)


and 32, and 37 C.F.R. §§ 11.27 and 11.59. Disciplinary decisions involving
practitioners are posted for public reading at the Office of Enrollment and
Discipline Reading Room, available at:
http://e-foia. uspto.gov/FoialOEDReadingRoom. j sp.

e. Respondent shall comply with 37 C.F.R. § 11.58;

f. The OED Director shall comply with 37 C.F.R. § 11.59;

g. Respondent shall comply with 37 C.F.R. § 11.60 upon any request for

reinstatement;

h. The OED Director and Respondent shall bear their own costs incurred to date;

and

in carrying out the terms of this agreement

i. USPTO Disciplinary Proceeding No. D2014-22 is hereby dismissed.

(only signature page follows)

5
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 89 of 227

JUN 3 0 2014
Date SO. PAYNE
epu y General Counsel for General Law
it States Patent and Trademark Office
'oJ

on behalf of

Michelle K. Lee
Deputy Under Secretary of Commerce for Intellectual
Property and Deputy Director of the United States Patent and
Trademark Office

cc:

Director of the Office of Enrollment and Discipline


U.S. Patent and Trademark Office

Cameron Weiffenbach
Miles & Stockbridge, P.C.
1751 Pinnacle Drive, Suite 500
McLean, Virginia 22102
Respondent's counsel

6
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 90 of 227

EXHIBIT​ ​K
12/26/2017 Trademark Owners
Case 5:17-cv-07318 Should Think
Document 1-1Twice About12/27/17
Filed Low-Cost Registration
Page Options
91 of 227

Recent Developments Should Have Trademark


Owners Thinking Twice About Using Low-Cost
Registration Services
By: Sean D. Detweiler
March 21, 2017

In the past 5 or so years, there have been a number of online, low-cost, entrants into the trademark
registration space. Companies like The Trademark Company, TTC Business Solutions, and others, promote
low-cost trademark registration services. However, questions have surfaced as to whether such services are
operating ethically.

In December 2016, the founder of The Trademark Company (and TTC Business Solutions) attorney Matthew
Swyers resigned from practicing before the U.S. Patent & Trademark Office (USPTO) in light of certain
charges asserted against his company. Mr. Swyers admitted to systematically permitting non-attorneys to
practice trademark law for his company with little or no supervision by licensed attorneys. Due to his failure to
supervise his employees, multiple fraudulent or digitally-manipulated specimens of use were filed with the
USPTO, which potentially jeopardized the trademark applications of his clients. As a result of the admitted to
actions, Mr. Swyers can no longer represent any applicant in trademark filings before the USPTO.

To be clear, it is impermissible for a non-attorney to practice trademark law. However, attorneys are allowed to
closely supervise and work with non-attorneys, such as paralegals, in such activities as pursuing trademark
registrations. In conventional law firms, close supervision by attorneys translates to their managing all
trademark work and reviewing all communications and actions taken by their staff in the pursuit of trademark
registrations and in representation of trademark clients.

The Trademark Company’s business model was one of high volume and low-cost; however, it appears the
sheer volume of filings handled by The Trademark Company, and allegedly signed by Mr. Swyers, lead the
USPTO Office of Enrollment and Discipline to call into question the actual level of supervision and involvement
by Mr. Swyers in applications for trademark registration.

Trademark applications for registration are not as simple as they may appear. Filling out some forms and
identifying a description of goods may result in a registration, if you are lucky, but what that registration covers
and how it relates to your company or product is an important question. It may not be worth the paper it is
written on if there is no careful review and consideration of the facts surrounding the use of the trademark.
Such careful review and consideration are part of the counseling and advice reputable trademark attorneys
contribute to the trademark registration process.

What are the risks to you if you use one of these online low-cost providers (or a large law firm that
outsources to such providers)? First, the service may close up shop overnight; for example, The Trademark
Company just removed trademark services from their list of offerings. Second, actions such services take on
your behalf may be called into question at a later time. At the time of this writing, The Trademark Company is
being investigated for allegedly submitting phony specimens evidencing use of a trademark, which if later
revealed could lead to loss of rights, loss of registration, possible charges of fraud on the Trademark Office,
and the like.

It is true that the counseling and advice will likely cost more than going it on your own, or using one of these
low-cost services that claim an attorney is involved. However, there is clearly a substantial risk in skipping the
advice and counseling that experienced trademark attorneys offer, and either filing trademark applications pro
se (as an individual, on your own) or using some of the low-cost online trademark registration providers, such
as The Trademark Company.

http://www.mbbp.com/news/think-twice-about-low-cost-TM-registration 1/2
12/26/2017 Trademark Owners
Case 5:17-cv-07318 Should Think
Document 1-1Twice About12/27/17
Filed Low-Cost Registration
Page Options
92 of 227
According to Mr. Swyers, The Trademark Company reportedly handled outsourced trademark work from
several large law firms as well. If true, this would be shocking, because applicants would be paying for the
“name brand” representation of the law firm, but actually receiving work product outsourced to a low-cost
provider under investigation for ethics violations. As such, there is apparently also a need to ask trademark
attorneys in law firms if they are outsourcing the work relating to preparing, filing, and/or prosecution
applications for trademark registration.

Whether or not directly related to the objectionable practices of companies like The Trademark Company,
recent news out of the USPTO means even if you engage a conventional trademark attorney at a law firm to
protect your marks, the trademark registrations may be scrutinized more closely by the Office. Effective March
21, 2017, the USPTO may now require the submission of information, exhibits, affidavits or declarations, and
such additional specimens of use as may be reasonably necessary for the USPTO to ensure that the register
accurately reflects marks that are in use in commerce in the United States for all the goods/services identified
in the registrations. In other words, the amended rules will allow the USPTO to require additional proof of use
to verify the accuracy of claims that a trademark is in use in commerce in connection with particular
goods/services identified in the registration.

To avoid problems in responding to such post-registration office actions requiring additional information, and/or
to better defend against attacks by a third-party on your trademark registration, careful review and amendment
of the list of goods and/or services in any maintenance or renewal filing should be done, preferably with the
advice and oversight of a trademark attorney. Also, renewal filings should be made as early as possible in the
renewal period to enable corrective filings, should there be an issue, before the due date.

It seems fair to say that to reliably maintain your trademark registrations and rights, the “best practice” is to call
upon the knowledge of an experienced trademark attorney, and to avoid the pitfalls of unproven alternative
services. If the service provider is substantially lower cost than the more conventional law firms, you’d be wise
to think twice about whether those short term savings may lead to long term problems and higher expenses.

To be sure your registration is managed appropriately, please contact Sean D. Detweiler.

http://www.mbbp.com/news/think-twice-about-low-cost-TM-registration 2/2
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 93 of 227

EXHIBIT​ ​L
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 95 of 227

EXHIBIT​ ​M
12/26/2017 TTC Business
Case 5:17-cv-07318 DocumentSolutions1-1
LLC: Employee Profiles | ZoomInfo.com
Filed 12/27/17 Page 96 of 227
Index of Professional Profiles from: TTC Business Solutions LLC

NAME

TITLE

LOCATION

Ashley Jones

Business Specialist and Account Manager

Cary, North Carolina

Tiffany Mays

Business Specialist and Account Manager

Cary, North Carolina

Stacy Olive

Business Specialist and Account Manager

Cary, North Carolina

Jennifer Pendergraft

Ann Hammack

Senior Executive Assistant

Cary, North Carolina

Valerie Kuhar

Operations Specialist

Cary, North Carolina

Paul Szulak

Business Specialist and Account Manager

Cary, North Carolina

Mathew Swyers

Manager

Cary, North Carolina

Courtney Mitchell

Operations Specialist

Cary, North Carolina

https://www.zoominfo.com/pic/ttc-business-solutions-llc/373825019 1/2
12/26/2017 TTC Business
Case 5:17-cv-07318 DocumentSolutions1-1
LLC: Employee Profiles | ZoomInfo.com
Filed 12/27/17 Page 97 of 227
Shannon Strayhorn

Research Specialist

Cary, North Carolina

Jessica Reynolds

Sales Manager

Cary, North Carolina

Courtney Sission

Business Specialist and Account Manager

Cary, North Carolina

Amy Kretzer

Controller

Cary, North Carolina

Abby Jordan

Business Specialist and Account Manager

Cary, North Carolina

Abigail Jordan

Account Manager

https://www.zoominfo.com/pic/ttc-business-solutions-llc/373825019 2/2
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 98 of 227

EXHIBIT​ ​N
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 99 of 227

Section 1
Case 1:16-cv-00015-LO-IDD
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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

MATTHEW H. SWYERS,

Plaintiff,
Civil No. l:16-cv-15

V.
Hon. Liam O'Grady
UNITED STATES PATENT AND
TRADEMARK OFFICE, et al..

Defendants.

Memorandum Opinion

Matthew Swyers filed this action to enjoin the United States Patent and Trademark Office

("PTO") from pursuing disciplinary proceedings against him stemming from the Office of

Enrollment and Discipline's ("OED") purportedly imconstitutional investigation into his patent

practice. In addition to injunctive relief, Swyers seeks damages from three individual PTO

employees pursuant to Bivens} During thependency of thecomplaint, thePTO initiated a


formal disciplinary proceeding against Swyers that is now pending before an administrative law

judge.

The PTO moves to dismiss the complaint on the groimd that the statutory scheme put in

place by Congress precludes judicial review of Swyers' claims at this stage or, alternatively, for

failure to state a claim. (Dkt. No. 14). The individual defendants have separately moved to

dismiss for failure to state a Bivens cause of action or, alternatively, on the basis of qualified

immunity. (Dkt. No. 17). The motions are fully briefed, and the Court heard argument on May

* See Bivens v. Six Unknown NamedAgents ofFed. Bureau ofNarcotics, 403 U.S. 388
(1971).
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Section 2
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UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MATTHEW H. SWYERS, )
)
Plaintiff, )
)
vs. ) Civil Action No. 1:16cv15
)
UNITED STATES PATENT & )
TRADEMARK OFFICE, et al., )
)
Defendants. )
_________________________________ )

MEMORANDUM OF LAW IN SUPPORT OF UNITED STATES PATENT &


TRADEMARK OFFICE’S MOTION TO DISMISS

DANA J. BOENTE
UNITED STATES ATTORNEY

DENNIS C. BARGHAAN, JR.


Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3891
Fax: (703) 299-3983
Email: dennis.barghaan@usdoj.gov

DATE: March 22, 2016 ATTORNEYS FOR DEFENDANTS

OF COUNSEL: Tracy Kepler


United States Patent and Trademark Office
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INTRODUCTION

It is difficult to overstate the importance of intellectual property in our modern society.

The United States Patent and Trademark Office (“USPTO”) is charged with not only regulating

intellectual property issues, but also with ensuring the integrity and fairness of the system itself –

including those practitioners who represent the intellectual property interests of others before the

USPTO. To this end, as the Federal Circuit has held, Congress and the USPTO have created a

comprehensive scheme governing the regulation of those practitioners, including a process by

which the USPTO investigates the conduct of a practitioner, and if necessary, the Director of

USPTO’s Office of Enrollment and Discipline (“OED”) files and ultimately prosecutes charges

of unprofessional conduct. That scheme provides a practitioner with extensive procedural

protections, including the ability to present oral testimony and written evidence before an

independent hearing examiner on the record, and an avenue for administrative and judicial

review of any adverse decision.

Plaintiff Matthew Swyers is a practitioner who has represented thousands of individuals

and entities before the USPTO in trademark matters. After an investigation into his conduct as a

trademark practitioner, and a finding of probable cause to believe he had engaged in substantial

misconduct by an independent committee of USPTO officials, the OED Director has filed a

lengthy complaint against plaintiff that presents eight separate counts of violations of USPTO’s

professional responsibility rules. Plaintiff will now have the ability to defend himself against

those charges before an independent hearing officer (an administrative law judge outside of the

USPTO), and to appeal any adverse decision to the USPTO Director, and then – if necessary – to

this Court.

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Despite this exclusive scheme for administrative and judicial review of USPTO

disciplinary decision-making, plaintiff now asks this Court to intervene while his disciplinary

proceeding remain pending, and to enjoin the USPTO from continuing with charges that are

premised on his alleged failure to respond to requests for information (“RFI”) that he maintains

were unconstitutional. Leaving aside the fact that plaintiff eschewed the opportunity to

challenge the propriety of the RFIs during the investigation via a specific review mechanism that

the USPTO created for exactly that purpose, see 37 C.F.R. § 11.2(e), plaintiff can present his

constitutional arguments during the ongoing administrative process in defense of the very

charges that he asks this Court to enjoin. But more importantly, the Supreme Court has held that

federal courts lack jurisdiction to entertain claims for equitable relief against ongoing

administrative proceedings when Congress has – as here – created a specific scheme within a

particular context for administrative and judicial review. Accordingly, any Article III judicial

review of the propriety of the disciplinary charges against plaintiff must await a final

administrative decision from the USPTO Director, and be presented to this Court pursuant to 35

U.S.C. § 32.

Nevertheless, nothing about the RFIs in question ran afoul of plaintiff’s Fourth and Fifth

Amendment rights. As Judge Motz provided in a separate opinion for the Fourth Circuit nearly a

decade ago, an individual does not enjoy any procedural due process protections with respect to

investigative fact-finding by an agency; rather, it is only when an agency actually seeks to

impose a sanction (here, by filing disciplinary charges against a practitioner) that due process

attaches. Nor were any of the RFIs so over-broad – especially in relation to the USPTO’s scope

of inquiry – to come within the ambit of the Fourth Amendment.

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STATUTORY AND REGULATORY BACKGROUND

In this action, plaintiff asks this Court to exercise judicial review in the middle of the

intricate and comprehensive scheme through which – pursuant to Congress’s express

authorization – the USPTO investigates putative misconduct on the part of those who represent

others before the agency and, in appropriate cases, seeks discipline against those individuals that

are alleged to have acted in contravention of the USPTO’s rules of professional conduct

(“RPC”). It is thus appropriate at the threshold to provide a detailed description of that scheme,

including the several opportunities that are available for administrative and judicial review of

USPTO decision-making and action in the disciplinary context.

I. USPTO’S AUTHORITY TO REGULATE THE CONDUCT OF PRACTITIONERS BEFORE THE


AGENCY

Congress has vested the USPTO with the authority to promulgate regulations

“govern[ing] the recognition and conduct of agents, attorneys, or other persons representing

applicants or other parties before the Office.” 35 U.S.C. § 2(b)(2)(D); see also Haley v. Under

Sec’y of Commerce for Intellectual Prop., --- F. Supp. 3d ---, 2015 WL 5277880, at *8 (E.D. Va.

Sept. 8, 2015). The Federal Circuit has repeatedly recognized that this provision grants broad

authority to the USPTO to govern the conduct of proceedings before the USPTO, and to govern

the recognition and conduct of practitioners who appear before the USPTO. See, e.g., Lacavera

v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir. 2006).

Pursuant to this authority, the USPTO has enacted its own Rules of Professional Conduct

(“RPC”), see 37 C.F.R. §§ 11.101-.901, which govern the conduct of all practitioners engaged in

practice before the USPTO. The USPTO has also, based on 35 U.S.C. §§ 2(b)(2)(D) and 32,

promulgated specific regulations governing the investigation of alleged violations of the RPC on

the part of practitioners, and proceedings geared towards adjudicating both whether practitioners

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have engaged in professional misconduct, and if so, the appropriate sanction for such

misconduct. See 37 C.F.R. §§ 11.2; 11.19-11.60.

II. THE DISCIPLINARY PROCESS

A. DISCIPLINARY INVESTIGATIONS

The disciplinary process commences when the Director of USPTO’s Office of

Enrollment and Discipline (“OED”) receives information suggesting professional misconduct on

the part of a practitioner, and initiates an investigation.1

1. Prior to 2004, there existed scant formal legal guidance concerning OED’s investigations

into allegations of misconduct. Indeed, USPTO’s regulations simply provided that the OED

Director’s duties included the “[c]onduct [of] investigation into possible violations of the

Disciplinary Rules.” 37 C.F.R. § 10.2(b)(2); see also id. § 10.131(a) (providing that the

“Director is authorized to investigate possible violations of Disciplinary Rules by practitioners”).

No specific regulatory provision identified either the types of investigatory tools at OED’s

disposal, or those mechanisms that were available to a practitioner to challenge decisions made

or actions taken by OED during the course of an investigation. And in all candor, in early 2004,

the Fourth Circuit criticized these gaps in USPTO’s regulatory structure. See Goldstein v.

Moatz, 364 F.3d 205, 217-18 (4th Cir. 2003). But, contrary to the allegations contained in

plaintiff’s complaint here, Complaint, ¶1, since the Fourth Circuit’s decision in Goldstein, the

USPTO has now filled those gaps.

2.a. Initially, the USPTO’s regulations now clearly provide that OED officials can – as a part

of their investigation into potential misconduct on the part of a practitioner – “request


1
Such allegations of misconduct can come to the attention of the OED Director, see 37
C.F.R. § 11.2(b) (delineating duties of OED Director), in any number of ways. For instance, an
individual outside USPTO – e.g., a client, court, or other agency – can report such allegations to
OED, and USPTO personnel can similarly identify potential misconduct for investigation. See
37 C.F.R. § 11.22(b).

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information and evidence regarding possible grounds for discipline of a practitioner,” 37 C.F.R.

§ 11.22(f)(1), colloquially known as “requests for information” or “RFIs.” OED can exercise

this authority to request information from the “grievant” (i.e., the individual who tendered the

complaint of alleged misconduct), the member him or herself, or “[a]ny person who may

reasonably be expected to provide information and evidence needed in connection with the

grievance or investigation.” Id. As the USPTO noted in promulgating these new rules to the

public, “[r]equesting information and documents from practitioners . . . enables the OED

Director, and ultimately the [USPTO], to efficiently and effectively ascertain whether grounds

for disciplining a practitioner exist.” Changes to Representation of Others Before the United

States Patent and Trademark Office, 72 Fed. Reg. 9196, 9200 (Feb. 28, 2007). And for this

reason, consistent with the vast majority of state bar rules, USPTO’s RPC provide that if a

practitioner “knowingly fail[s] to respond to a lawful demand or request for information” not

protected by the rule on client confidences, such represents an independent ethical violation for

which the practitioner may be disciplined. 37 C.F.R. § 11.801(b) (emphasis added); see also VA.

R. PROF. COND. 8.1(c) (providing that Virginia practitioners “shall not . . . fail to respond to a

lawful demand for information from an admissions or disciplinary authority”).2

Additionally, OED can request information directly from a client of the practitioner under

investigation – even if that client is not simultaneously the individual who complained about the

practitioner’s conduct – but only after following carefully-circumscribed regulatory procedures

designed to protect against unnecessary intrusion into the sanctity of the attorney-client

relationship. Id. § 11.22(f)(2). In this respect, OED may only seek information from a non-

complaining client of the practitioner in question if (a) the practitioner himself consents, or (b)
2
Of course, the highlighted terms above – especially within the context of the instant
action – are significant, as the USPTO must establish that the practitioner knowingly failed to
respond to a request for information that was lawful.

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“upon a finding by a Contact Member of the Committee on Discipline [a group of independent

USPTO employees outside of OED] . . . that good cause exists to believe that the possible

ground for discipline alleged has occurred with respect to non-grieving clients.” Id.

b. But recognizing other concerns about potential investigatory overreaching articulated by

the Fourth Circuit in Goldstein, the USPTO also endeavored to create a remedial mechanism

through which practitioners (or others) could obtain review of OED decision-making and action

– including its issuance of requests for information – during disciplinary investigations:

A party dissatisfied with any action or notice of any employee of the Office of
Enrollment and Discipline during or at the conclusion of a disciplinary investigation shall
seek review of the action or notice upon petition to the OED Director.

Id. § 11.2(e). In order to ensure that the investigation remains on track, and that this petition

process is not utilized by practitioners to preclude the USPTO from filing a disciplinary

complaint within the relevant limitations period,3 any such petition must be filed within thirty

(30) days of the decision or action challenged. See id. Once the OED Director adjudicates the

petition, the party in question may seek administrative appellate review with the USPTO

Director. See id. And importantly, if still dissatisfied, the party may seek Article III judicial

review of the USPTO Director’s final decision on the petition in an appropriate federal court.

See id.; Changes to Representation of Others Before the United States Patent and Trademark

Office, 77 Fed. Reg. 64190, 64191-92 (Oct. 18, 2012) (noting that practitioners dissatisfied with

investigatory action on the part of OED personnel must exhaust these available “administrative

remedies before seeking relief under the Administrative Procedure Act”). As such, in the wake

of the Fourth Circuit’s decision in Goldstein, the USPTO has created specific mechanisms for

3
Pursuant to federal statute, USPTO must commence any disciplinary proceeding within
10 years of the allegedly-unprofessional conduct, or within one year of the USPTO’s knowledge
of that conduct. See 35 U.S.C. § 32.

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practitioners to obtain review of requests for information issued by OED during its investigation

of a given practitioner.

B. DISCIPLINARY PROCEEDINGS

1. If, at the conclusion of its investigation, OED believes that a practitioner has engaged in

unethical conduct, it cannot sua sponte charge that practitioner with a violation of the RPC and

seek a disciplinary sanction. Rather, it must present its investigatory findings to a panel the

“Committee on Discipline” – an independent group of attorneys at USPTO outside and

independent of OED.4 See 37 C.F.R. §§ 11.23(b)(1); 11.32. That panel reviews the evidence,

and determines whether there is probable cause to believe that the practitioner has engaged in

conduct violative of the RPC. See id. § 11.32.

If the panel makes this necessary probable cause finding, the OED Director commences

disciplinary proceedings by filing and serving a complaint against the practitioner. See id. §§

11.32; 11.34-35. The practitioner then has at least thirty (30) days to file an answer to the

complaint, see id. § 11.36, and of course, is entitled to legal representation during disciplinary

proceedings, see id. § 11.40.

2. Disciplinary proceedings against USPTO practitioners are conducted and adjudicated by

completely independent “hearing officers” that are outside the immediate supervision of either

the USPTO or OED Directors, see 35 U.S.C. § 32; 37 C.F.R. § 11.39; typically, Administrative

Law Judges (“ALJs”) from other Executive Branch agencies. And these proceedings, although

administrative in nature, bear the hallmarks of traditional litigation, along with the trappings of

due process afforded to litigants in Article III courts. See 35 U.S.C. § 32 (requiring notice and

4
In particular, the USPTO Director is responsible for appointing the Committee on
Discipline, the governing regulations mandate that no member of the committee “shall report
directly or indirectly to the OED Director or any employee designated by the USPTO Director to
decide disciplinary matters.” 37 C.F.R. § 11.23(a).

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an opportunity to be heard before a practitioner may be sanctioned). The OED Director bears the

“burden of proving the violation by clear and convincing evidence.” Id. § 11.49.

Hearing officers have extensive independent authority over disciplinary proceedings,

including the issuance of rulings on “motions or other requests” and evidentiary issues during the

course of the proceedings. See id. §§ 11.39(c); 11.43. Although full-fledged discovery is not

authorized as a matter of course, either the OED or a practitioner may move the hearing officer

to authorize discovery in the form of reasonable interrogatories and requests for production of

documents. See id. § 11.52(a). Additionally, the hearing officer presides over oral hearings –

akin to a trial – at which she receives both evidence and legal argument on the record concerning

the charges from both OED and the practitioner. See id. § 11.44.

USPTO’s regulations provide that a hearing officer should issue an initial decision on the

disciplinary charges within nine (9) months of the date on which the initial complaint is filed,

unless circumstances dictate otherwise. See id. § 11.39(d). That initial decision – akin to bench

trials before this Court – must include findings of fact and conclusions of law. See id.

§ 11.54(a)(1). And if the hearing officer concludes that the OED Director has borne his burden

to establish the practitioner’s disciplinary infraction, the decision is also to identify the

appropriate sanction for the misconduct. See id. § 11.54(a)(2).

3. If the practitioner is dissatisfied with the hearing officer’s resolution of the OED

Director’s disciplinary complaint, he has several avenues for administrative and judicial review.

a. Within thirty days of the hearing officer’s decision, the practitioner may notice an appeal

of that decision to the USPTO Director, including a brief that – consistent with the Federal Rules

of Appellate Procedure – identifies the grounds of error on the part of the hearing officer. See id.

§ 11.55. OED is entitled to file a responsive brief, and the practitioner a reply brief. See id.

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Once briefing is completed, the USPTO Director “has authority to conduct a de novo

review of the factual record,” and “may affirm, reverse, or modify the initial decision or remand

to the hearing officer for such further proceedings as [she] may deem appropriate.” Id. § 11.56.

Subsequent to the USPTO Director’s appellate decision, the regulations afford a practitioner who

remains dissatisfied a single opportunity to request reconsideration. Id. § 11.56(c).

b. Once the USPTO Director’s appellate decision becomes final, Congress explicitly

provided a single, streamlined vehicle for Article III review of USPTO disciplinary proceedings,

and in so doing, placed strict limitations on the venue in which that review can be had:

The United States District Court for the Eastern District of Virginia, under such
conditions and upon such proceedings as it by its rules determines, may review the action
of the Director upon the petition of the person so refused recognition or so suspended or
excluded.

35 U.S.C. § 32. As the Federal Circuit has held, § 32 serves as the exclusive means by which a

USPTO practitioner can obtain judicial review of the agency’s disciplinary decisions, and that

such serves as part of the “‘orderly administrative mechanism’ for review” of such issues. See

Franchi v. Manbeck, 972 F.2d 1283, 1288-89 (Fed. Cir. 1992).

FACTUAL BACKGROUND & PROCEDURAL HISTORY5

1. Plaintiff Matthew Swyers is an attorney and trademark practitioner, and thus is currently

authorized to practice before the USPTO in trademark and other non-patent matters. Complaint

(Dkt. No. 1), ¶7; see also 5 U.S.C. § 500. In 2003, Plaintiff founded a law practice called “The

Trademark Company,” which engages in “the representation of clients in the protection of their
5
The following discussion is based on the allegations contained within the four corners of
the complaint, as well as both the attachments to that complaint and the other documents to
which plaintiff refers in the same, all of which may be considered by this Court in adjudicating a
motion to dismiss brought pursuant to Federal Rule 12(b)(6). See Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007). It is also well-settled that this Court can review
materials outside of the complaint in addressing its own jurisdiction pursuant to Federal Rule
12(b)(1). See, e.g., Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).

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federal trademark and copyright rights.” Id. ¶13. In the thirteen years since its founding, “the

firm has represented over 20,000 clients,” despite the fact that virtually none of the other

individuals that plaintiff employed over that time were licensed attorneys. Id. ¶¶16; 49.

2. In August 2014, OED commenced an investigation into plaintiff’s conduct in his

representation of others before the USPTO in trademark matters. Complaint, ¶18. Consistent

with the regulations governing disciplinary investigations, OED personnel – during its

investigation – transmitted to plaintiff a series of RFIs. Complaint, ¶¶18; 38; 44; 50; 54. It is

these RFIs that form the backbone for many of plaintiff’s allegations in the instant complaint.

Nowhere within the four corners of the complaint, however, does plaintiff once allege that he

challenged the propriety of OED’s transmission of any of these RFIs through the aforementioned

procedure, see 37 C.F.R. § 11.2(e), explicitly created for that purpose.

a. OED transmitted its first RFI to plaintiff on August 29, 2014. Id. ¶18; see also

Defendant’s Exhibit (“DEX”) 1. These first RFIs explained to plaintiff that it had commenced

an investigation after receiving information regarding his trademark application filings, and that

OED was endeavoring “to develop all information relevant to the received information,

including that information which may justify or exonerate the alleged actions.” Id. at 1. The RFI

also provided a list of the RPC that were “under possible consideration,” so that plaintiff could

generally understand the nature of the potential misconduct being investigated. Id. at 3.

And although plaintiff maintains that this – and other – RFIs contains “threats”

concerning plaintiff’s non-compliance with the RFIs, Complaint, ¶19, the actual text of the RFIs

belie this contention. Rather, the RFIs merely serve to remind a practitioner (such as plaintiff

here) of what the RPC already mandate – i.e., that responding to RFIs is not discretionary – so

that a practitioner cannot later feign ignorance:

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It is a violation of the USPTO Rules of Professional Conduct to fail to cooperate with


OED in an investigation of any matter before it, or to knowingly fail to respond to a
request from OED. See 37 C.F.R. § 11.801(b). In addition, if you do not respond to this
request for information, the Committee on Discipline may draw an adverse inference in
making a determination under 37 C.F.R. § 11.23. See Baxter v. Palmigiano, 425 U.S.
308 (1975).

DEX 1.

b. After receiving plaintiff’s response to its first set of RFIs, OED transmitted a second RFI

to plaintiff on December 19, 2014. Id. ¶38 & ex.A. And although it was not required to do so,

OED identified for plaintiff those trademark applications with which plaintiff was identified

about which OED had concerns. Id. ex. A. In a lengthy preface to this RFI, OED informed

plaintiff – with citations to the appropriate provisions of the USPTO’s regulations and the

Trademark Manual of Examining Procedure – of exactly the ethical concerns that animated its

questioning. Id. ex.A., at 13-14. More specifically, OED explained that all documents submitted

to the USPTO in trademark matters must be personally signed by an authorized person –

including those signed electronically – and that an attorney’s paralegal or assistant cannot be the

signatory; thus, OED was concerned that other individuals (i.e., those employed by the

Trademark Company) were signing plaintiff’s name electronically to documents without plaintiff

having done so personally as required. Id. The four queries transmitted in this second RFI, once

distilled to its essence, simply asked plaintiff to identify whether his electronic signature had

ever been affixed to an agency filing by another individual, in violation of USPTO signature

rules for trademark matters.

c. Based on these continued concerns about plaintiff’s non-attorney employees signing and

filing documents with the USPTO under his name, on March 30, 2015, OED transmitted its third

RFI to plaintiff. Id. ¶44; DEX 2. This RFI first asked plaintiff to confirm his prior responses

concerning whether other individuals electronically signed his name to trademark applications.

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DEX 2. And second, this RFI asked plaintiff to provide contact information for current and past

employees of the Trademark Company. DEX 2. Two weeks later, plaintiff responded to this

RFI simply by providing a laundry list of objections to the same, and disclosing information

about one employee. Id. ¶45 & ex.B.

d. In May and June 2015, OED transmitted its final two RFIs to plaintiff. Id. ¶¶50-54, exs.

D-E. These RFIs provided extremely-detailed information about the evidence that OED had

garnered during its investigation to date, including plaintiff’s own admissions, and the potential

misconduct on plaintiff’s part that OED was investigating. And with respect to each series of

requests, OED took the extraordinary step of providing a justification for its requests. As but one

example, OED’s fourth RFI provided as follows, in pertinent part:

Since January 2010, Mr. Swyers filed, or caused to be filed, thousands of trademark
applications and trademark application submissions . . . in the Office. Based on (a) Mr.
Swyers’ admission that he allowed other persons to sign his name to trademark
applications and trademark application submissions filed in the Office under his
electronic signature, and (b) Mr. Swyers’ alleged ignorance of well-known USPTO
signature rules, there is evidence suggesting that Mr. Swyers may have violated
numerous ethical duties that he owes to [his] trademark applicants, to the Office, to the
public, and to the legal profession. Therefore, additional information is requested from
Mr. Swyers as follows.

Id. ex. D., at 2. This comes not from a disciplinary complaint, or from a closing argument before

the Hearing Officer; rather, it is from a RFI transmitted only to plaintiff so that plaintiff can

understand the basis for, and provided complete responses to, OED’s inquiries.6

3. OED’s investigation has now closed. And on March 11, 2016, after the Committee on

Discipline found probable cause that plaintiff had violated the RPC, the OED Director – who is

not a defendant here – commenced disciplinary proceedings against plaintiff through the filing of

6
OED personnel also contacted some of plaintiff’s clients to obtain information about his
representation, and did so only after following the process mandated by 37 C.F.R. § 11.22(f)(2),
and receiving permission from an independent member of the Committee on Discipline outside
OED.

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a fifty-six (56) page complaint against plaintiff with an ALJ at the United States Environmental

Protection Agency, who will serve as the independent hearing officer to adjudicate the charges.

DEX 3. That complaint alleges eight separate counts against plaintiff:

 Count I – assisting others in engaging in the unauthorized practice of law; failure to


review trademark applications and other trademark documents before filing;
misrepresentations to clients;

 Count II – directing or allowing non-lawyer employees to sign or forge [plaintiff’s] name


to trademark applications and other trademark documents filed in the Office, in violation
of the USPTO signature and certification rules;

 Count III – directing or allowing employees to sign or forge [plaintiff’s] name to Section
2(f) declarations filed with the Office;

 Count IV – filing with the Office fraudulent or digitally altered specimens which did not
reflect the mark’s use in commerce; failure to inform the Office or clients or false or
fraudulent specimens; failure to remedy or offer restitution;

 Count V –misrepresentation on website that a lawyer would prepare and review


documents; collecting fees for trademark work done by non-lawyers when representing
to clients that a lawyer would do the work.

 Count VI – failure to deposit client funds paid in advance into a client trust account;

 Count VII – impermissibly sharing legal fees with non-practitioners;

 Count VIII – witness tampering; failure to respond to lawful requests for information or
cooperate with OED.

DEX 3.

More specifically, the complaint alleges, inter alia, that plaintiff “directed or allowed

non-lawyer employees of the Trademark Company to electronically sign or forge [his] electronic

signature to his clients’ trademark application,” and that plaintiff had “admitted to OED that he

did not review the trademark applications before they were filed.” Id. ¶¶34-35. The complaint

also alleges that plaintiff’s employees filed fraudulent specimens (i.e., those that were not

actually being used in commerce) in support of trademark regulations, id. ¶¶91-117; 126-42, and

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that at least two of plaintiff’s former clients had provided evidence corroborating that plaintiff’s

employees had created and filed fraudulent specimens with the agency, id. ¶¶97; 182.

Of import to this action, only one part of a single count of the disciplinary complaint

concerns plaintiff’s responses to the RFIs. Id. at 49-53. In this respect, the complaint identifies

that “[a] practitioner has an ethical duty to cooperate with OED and respond to its lawful

requests for information.” Id. at 48 (citing 37 C.F.R. § 11.801(b)). And that single count

concerns only a few discrete issues with respect to plaintiff’s responses: (1) plaintiff’s failure to

provide client invoices (which would have revealed the firm employee who worked on the

application in question); (2) plaintiff’s failure to provide employment agreements (which would

have revealed evidence of whether plaintiff was impermissibly sharing fees with non-lawyers);

(3) plaintiff’s failure to provide requested § 2(f) declarations (which would have provided

evidence of the veracity of plaintiff’s putative trademark filings); and (4) plaintiff’s refusal to

provide a privilege log to corroborate those materials that he was withholding on the basis of

privilege. Id. at 49-52. The complaint avers that each of the OED’s RFIs were “lawful.” Id.

These disciplinary proceedings are, therefore, in their infancy. Plaintiff now has thirty

days within which to answer the complaint. After plaintiff files his answer, the ALJ – as hearing

officer – will conduct the proceedings, consider motions, receive evidence, and issue an initial

decision on the charges contained within the complaint. Should plaintiff be dissatisfied with that

initial decision, he will be afforded the opportunity to appeal the decision to the USPTO

Director, who will issue a final administrative decision. And as stated earlier, plaintiff can seek

Article III judicial review in this Court from the USPTO Director’s final decision.

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STANDARDS OF REVIEW

I. FEDERAL RULE 12(b)(1)

Federal Rule 12(b)(1) serves as the appropriate vehicle to challenge the court’s subject

matter jurisdiction in a particular matter. See, e.g., Coulter v. United States, 256 F. Supp. 2d

484, 486 n.3 (E.D. Va. 2003), aff’d, 90 Fed. Appx. 60 (4th Cir. 2004). The plaintiff bears the

burden of establishing the court’s subject matter jurisdiction, and although this Court may utilize

the allegations contained within the four corners of the plaintiff’s complaint as evidence in

determining whether it possesses jurisdiction over a dispute, it may also consider other evidence

outside the pleadings if necessary. See Richmond, Fredericksburg, & Potomac R.R. Corp. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991); Coulter, 256 F. Supp. 2d at 486 n.3.

II. FEDERAL RULE 12(b)(6)

To the contrary, a motion pursuant to Federal Rule 12(b)(6) serves to test the legal

sufficiency of the plaintiff’s complaint in relation to the factual averments he or she puts

forward. Although a court must accept all well-pled allegations in adjudicating such a motion, it

need not credit allegations that are merely conclusory. See Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009). In Iqbal, the Supreme Court held as follows with respect to the proper standard of

review:

To survive a motion to dismiss, a complaint must contain sufficient factual matter,


accepted as true, to “state a claim to relief that is plausible on its face.” A claim has
factual plausibility when the plaintiff pleads factual content that allow the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.

Id. at 678 (quoting Twombly, 550 U.S. at 570). Accordingly, although (as before) a court is

required to adjudge the factual averments contained within a complaint against the substantive

law governing the claim, now “where the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct,” the complaint fails. Id. at 679 (emphasis added).

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ARGUMENT

Plaintiff’s instant complaint presents two constitutional claims: (a) the RFIs violated

plaintiff’s Fifth Amendment rights to procedural due process, ostensibly because – in plaintiff’s

erroneous view – there is a “complete absence of any means to challenge the RFIs[],”

Complaint, ¶¶1; 67; and (b) the RFIs “amount[] to an unreasonable search within the meaning of

the Fourth Amendment of the United States Constitution.” Id. ¶70. From these claims, against

the USPTO, plaintiff asks this Court to insert itself into the ongoing disciplinary proceedings

before the independent hearing officer by entering an injunction precluding OED from

continuing with charges against plaintiff for failing to respond to the allegedly unlawful RFIs:

Swyers asks this Court to enjoin Defendants on a preliminary and permanent basis from
the enforcement of charges of violations of disciplinary rules based in whole or in part
upon the failure of Swyers to answer to the OED’s satisfaction RFIs that violate Swyers’
constitutional rights.

Id. ¶77.

II. THIS COURT LACKS JURISDICTION OVER PLAINTIFF’S REQUEST FOR JUDICIAL
INTERRUPTION OF AN ONGOING ADMINISTRATIVE PROCEEDING

The gravamen of plaintiff’s request for injunctive relief in this Court is that any

disciplinary charge against plaintiff based upon his purported failure to respond to putatively-

unlawful RFIs would be unfounded, and that this Court should judicially-intervene and eliminate

those charges immediately. But disciplinary proceedings against plaintiff on these (and many

other) grounds have just commenced, and plaintiff – pursuant to the streamlined process of

administrative and judicial review that Congress has mandated – will have a full and fair

opportunity to present his arguments to the hearing officer, and then (if necessary) to the USPTO

Director, and ultimately to this Court. Plaintiff’s injunctive demand thus asks this Court to insert

itself prematurely into this ongoing process and thus to allow him to circumvent Congress’s

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desired system for administrative and judicial review. As described below, binding authority

divests this Court of jurisdiction to entertain such a request.

A. THIS COURT LACKS JURISDICTION TO ENTERTAIN ARGUMENTS OF


CONSTITUTIONAL ERROR OUTSIDE OF THE SPECIFIC JUDICIAL REVIEW
SCHEME THAT CONGRESS PROMULGATED

It is by now axiomatic “that no one is entitled to judicial relief for supposed or threatened

injury until the prescribed administrative remedy has been exhausted.” Thetford Properties IV

L.P. v. HUD, 907 F.2d 445, 448 (4th Cir. 1990) (noting this to be a “long settled rule of judicial

administration”); see also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938).

This rule is no less applicable where a litigant raises issues of a constitutional dimension. See,

e.g., Nationsbank Corp. v. Herman, 174 F.3d 424, 429 (4th Cir. 1999) (recognizing the

“consistent and unambiguous line of cases rejecting the contention that constitutional claims

should be exempt from the exhaustion requirement”). And although administrative exhaustion is

generally a prudential doctrine, see Volvo GM Heavy Truck Corp. v. Dep’t of Labor, 118 F.3d

205, 211-12 (4th Cir. 1997), it becomes a jurisdictional mandate where Congress has created an

exclusive system for administrative and judicial review within a particular context.

Where Congress has created a streamlined review scheme that channels judicial review

into a single Article III forum, constitutional challenges must be presented to that forum at the

conclusion of administrative proceedings. As the Supreme Court has held:

As for petitioner’s constitutional claim, we agree that “[a]djudication of the


constitutionality of congressional enactments has generally been thought beyond the
jurisdiction of administrative agencies.” This rule is not mandatory, however . . . [and]
the Commission has addressed constitutional questions in previous enforcement
proceedings. Even if this were not the case, however, plaintiff’s statutory and
constitutional claims here can be meaningfully addressed in the court of appeals.

We conclude that the Mine Act’s comprehensive enforcement scheme, combined with the
legislative history’s clear concern with channeling and streamlining the enforcement
process, establishes a ‘fairly discernible’ intent to preclude district court review in the

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present case. . . . To uphold the District Court’s jurisdiction in these circumstances would
be inimical to the structure and the purposes of the Mine Act.

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994) (emphasis added) (footnotes and

citations omitted) (quoting Johnson v. Robison, 415 U.S. 361, 368 (1974)). Put simply, allowing

a litigant to circumvent Congress’s deliberately-crafted review scheme would both defeat the

purpose behind the streamlined system and merely “duplicate” the specific judicial review that

Congress provided. See Sturm Ruger & Co. v. Herman, 300 F.3d 867, 876 (D.C. Cir. 2002)

(“Our obligation to respect the review process established by Congress bars us from permitting

Sturm Ruger to make this end run [around Congress’s review scheme], and requires dismissal of

its district court complaint.”); see also Hirschberg v. CFTC, 2003 WL 22019310, at *4 (N.D. Ill.

Aug. 27, 2003) (“Because Hirschberg’s constitutional claims also ‘can be meaningfully

addressed in the court of appeals’ . . . this Court’s jurisdiction would duplicate the CEA’s

statutory appeals procedure.”). Put simply, as the Supreme Court has more recently concluded,

“the appropriate inquiry” is “whether it [was] fairly discernible” from the statutory scheme that

Congress intended litigants “to proceed exclusively through the statutory review process.” Elgin

v. Dep’t of the Treasury, 132 S. Ct. 2126, 2133 (2012).

Another Eastern District jurist recently applied these principles to preclude this Court’s

jurisdiction over a request to enjoin the conduct of USPTO administrative proceedings – based

on allegations that those proceedings ran afoul of plaintiff’s constitutional rights – because the

Patent Act established a particular scheme for judicial review. See Cooper v. Lee, 86 F. Supp.

3d 480 (E.D. Va. 2015). In Cooper, plaintiffs were patent owners embroiled in inter partes

review proceedings before the USPTO – proceedings through which the USPTO reconsiders its

prior decision to issue a patent. As here, plaintiffs in Cooper maintained that these inter partes

review proceedings violated their constitutional rights, and asked this Court to enter an

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injunction terminating those proceedings. See id. at 482. Much like its treatment of USPTO

disciplinary proceedings, the Patent Act provided a single avenue for judicial review of

administrative inter partes review proceedings – i.e., an appeal to the Federal Circuit from the

Patent Trial and Appeal Board’s (“PTAB”) final written decision. See 35 U.S.C. § 319. For this

reason, inter alia, Judge Lee concluded that he could not entertain plaintiff’s claims about the

constitutionality of the proceedings, and that any constitutional challenge needed to be presented

to the Federal Circuit at the end of proceedings pursuant to the congressionally-created scheme

for judicial review. See Cooper, 86 F. Supp. 3d at 489.

And so it is here. There can be little doubt that, as the Federal Circuit has already held,

Congress intended that the filing of a petition for review in this Court pursuant to § 32 – after the

USPTO Director issues her final administrative decision – would serve as the exclusive

mechanism for Article III review of disciplinary charges against a USPTO practitioner. It is

well-settled “that a precisely drawn, detailed statute pre-empts more general remedies.” Brown

v. GSA, 425 U.S. 820, 834 (1976). The Patent Act’s establishment of a private right of action

for Article III judicial review for an aggrieved practitioner pursuant to § 32 easily fits this

principle. The process by which the USPTO may seek to discipline an agency practitioner –

including administrative trial proceedings before an independent hearing officer and

administrative appellate proceedings before the USPTO Director – are, as detailed above, both

comprehensive and specific. And at the end of these administrative proceedings, should the

USPTO enter a final order of suspension against a practitioner, Congress provided a specific

cause of action for Article III judicial review of that order. See 35 U.S.C. § 32. For these

reasons, the Federal Circuit has held that litigants cannot raise challenges – constitutional or

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otherwise – to disciplinary proceedings outside of the specific circumstances identified in § 32.

See Franchi v. Manbeck, 972 F.2d 1283, 1288-89 (Fed. Cir. 1992).

But that is exactly what plaintiff asks of this Court – to adjudicate the propriety of a

portion of the pending disciplinary charges against him while administrative proceedings related

to those charges are ongoing, before either the independent hearing officer or the USPTO

Director can render a decision on those disciplinary charges, and outside of the specific avenue

for judicial review Congress authorized. The above authority precludes this Court from

exercising jurisdiction over plaintiff’s attempt to circumvent Congress’s system for

administrative and judicial review of disciplinary charges through a collateral Article III

proceeding. And although not dispositive of this issue, plaintiff has an opportunity to press his

argument that the RFIs in question were unconstitutional during the pending administrative

proceedings.7 As the relevant USPTO RPC provides, plaintiff can only be disciplined for failing

to respond to a “lawful” request for information during investigation, see 37 C.F.R. § 11.801(c);

indeed, OED’s complaint against plaintiff specifically provides that its requests of plaintiff were

“lawful” within the meaning of the rule. DEX 3. Plaintiff will thus be able to argue – to the

independent hearing officer, the USPTO Director, and ultimately this Court within § 32 judicial

review – that OED’s RFI’s were unconstitutional (or, in the parlance of the rule, “unlawful”).

Regardless, however, this Court lacks jurisdiction to consider plaintiff’s request for an

injunction terminating that portion of the disciplinary proceedings against him outside of the

exclusive vehicle for judicial review found in § 32. Plaintiff’s constitutional challenge to any

7
Importantly, individuals are still required to traverse a particularized administrative and
judicial review scheme even if an administrative agency cannot provide it the constitutional
relief requested. See, e.g., Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 738 (D.C. Cir. 1987)
(opinion of Edwards, J.) (holding that general exhaustion rule “has been applied even where the
plaintiffs have challenged the very authority of the agency to conduct proceedings against them”)

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potential discipline based on his purported failure to respond to OED’s RFIs in this Court thus

must await the conclusion of administrative review, and proceed pursuant to § 32.

B. THERE HAS BEEN NO “FINAL AGENCY ACTION” OVER WHICH THIS COURT
MAY EXERCISE JURISDICTION

Even if this Court, despite the Federal Circuit’s decision in Franchi, were to conclude that

the administrative and judicial review scheme Congress authorized in § 32 was not the exclusive

means by which to review USPTO disciplinary decisions, there still has been no “final agency

action” over which this Court can exercise judicial review. In this respect, at bottom, plaintiff

seeks judicial review over an ongoing administrative proceeding – a matter generally governed

by the provisions of the Administrative Procedure Act (“APA”). But the APA only authorizes

judicial review over “final agency action.” 5 U.S.C. § 704.

As the Supreme Court has held, the mere filing of an administrative complaint against a

litigant is the antithesis of a “final agency action,” as it is only the beginning of the

administrative process. FTC v. Standard Oil Co., 449 U.S. 232, 241-43 (1980). The rationale

behind this strict limitation is clear: review of a non-final agency decision “interfere[s] with the

proper functioning of the agency and [is] a burden for the courts.” Id. at 242. Allowing district

courts to exercise APA jurisdiction over such action “leads to piecemeal review which at the

least is inefficient and upon completion of the agency process might prove to have been

unnecessary.” Id. Put simply, as delineated above, plaintiff may present his argument that the

RFIs in question were “unlawful,” and that the disciplinary charges based on the same should

thus not be sustained, during his pending disciplinary proceedings – arguments that either the

independent hearing officer or the USPTO Director on administrative appellate review may very

well accept, thus obviating any need whatsoever for this Court’s Article III review.

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III. THE RFIS SERVED BY OED’S INVESTIGATORS DID NOT RUN AFOUL OF PLAINTIFF’S
CONSTITUTIONAL RIGHTS

Even if this Court possessed the jurisdiction to intervene in plaintiff’s pending

disciplinary proceedings outside of Congress’s scheme for administrative and judicial review,

there was nothing constitutionally-infirm about either the OED investigators’ RFIs, or the

disciplinary charges based on plaintiff’s responses to the same. As stated above, plaintiff will

have a full and fair opportunity to argue – during the disciplinary hearing before an independent

administrative law judge (and on administrative and judicial review) – that those RFIs were

unconstitutional. But those arguments are meritless, as nothing about OED’s RFIs violated

plaintiff’s Fourth and Fifth Amendment rights.

Nor does this Court consider these constitutional questions on a completely blank slate,

as there has been judicial treatment of virtually identical arguments of constitutional deprivation

to those that plaintiff presents here – Judge Motz’s separate decision in Goldstein v. Moatz, 364

F.3d 205 (4th Cir. 2003). In Goldstein, another USPTO practitioner under investigation by OED

for professional responsibility violations presented similar constitutional arguments concerning

putatively overbroad and burdensome RFIs. See id. at 210. Judge Motz, writing separately,8

concluded that these allegations “utterly fail[ed] to . . . give rise to any constitutional violation.”

See id. at 220 (Motz., J., dissenting). Citing to the Supreme Court’s decisions in Hannah v.

Larche, 363 U.S. 420 (1960) and SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984), Judge

8
To be sure, Judge Motz’s separate opinion was technically a dissent. But it was not a
traditional dissent in that she was not disagreeing with any legal analysis offered by the panel
majority. In Goldstein, the District Court dismissed the action based on its conclusion that the
defendants were entitled to absolute immunity from suit, and the panel majority reversed that
conclusion. See Goldstein, 364 F.3d at 219. The panel majority did not entertain the merits of
Goldstein’s constitutional arguments, electing to remand the matter back to the District Court.
See id. Judge Motz simply believed that the constitutional merits – the very same arguments that
plaintiff presses here – were too weak even to merit remand, especially because to do so would
“serv[e] only to prolong a plainly meritless case.” Id. at 220 n.1 (Motz, J. dissenting).

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Motz noted that the courts “summarily rejected a number of constitutional challenges to similar

[] investigative procedures,” and had done so with respect “to attorney discipline and public

corruption investigations” as well. Id. at 222 (Motz, J., dissenting). There is no reason for this

Court to depart from Judge Motz’s cogent analysis.

A. THERE IS NO COGNIZABLE PROCEDURAL DUE PROCESS PROTECTION WITH


RESPECT TO INVESTIGATORY FACT-FINDING

Plaintiff first maintains that the OED investigators’ RFIs ran afoul of his Fifth

Amendment rights to procedural due process. The Fifth Amendment to the United States

Constitution generally provides that an individual may not “be deprived of life, liberty, or

property, without due process of law.” U.S. CONST. amend V. The procedural requirements of

the Due Process Clause have not been the subject of precise definition, leaving the minimal

constitutional protections afforded by the provision somewhat difficult to ascertain with any

mechanical certainty. See, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972) (“[D]ue process is

flexible and calls for such procedural protections as the particular situation demands.”).

Notwithstanding the vague decisional authority concerning the contours of the right, the

Supreme Court has held that – from a general perspective – due process protections minimally

require “notice and an opportunity to be heard.” Mallette v. Arlington County Employees’

Supplemental Retirement Sys., 91 F.3d 630, 640 (4th Cir. 1996).

But as the Supreme Court has repeatedly held, and Judge Motz correctly observed, the

Fifth Amendment’s procedural due process protections do not attach to issues related to agency

fact-finding efforts:

[W]hen governmental agencies adjudicate or make binding determinations which directly


affect the legal rights of individuals, it is imperative that those agencies use the
procedures which have traditionally been associated with the judicial process. On the
other hand, when governmental action does not partake of an adjudication, as for

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example, when a general fact-finding investigation is being conducted, it is not necessary


that the full panoply of judicial procedures be used.

Hannah v. Larche, 363 U.S. 420, 442 (1960) (emphasis added); see also SEC v. Jerry T. O’Brien,

Inc., 467 U.S. 735, 742 (1984) (holding that Hannah “leaves no doubt that [] the Due Process

Clause of the Fifth Amendment” is not “offended when a federal administrative agency . . . uses

its subpoena power to gather evidence”). The same dichotomy applies here. Although plaintiff

seeks injunctive relief with respect to the OED Director’s prosecution of him on charges of

unethical conduct, his constitutional arguments are focused on RFIs that were issued to him

during by the OED investigators during the investigatory process. “The Due Process Clause is

not implicated under such circumstances because an administrative investigation adjudicates no

legal rights.” O’Brien, 467 U.S. at 742. And now that the OED Director has commenced

disciplinary proceedings – during which plaintiff’s “legal rights” will most certainly be

“adjudicated” – plaintiff will receive far more than constitutionally-minimal due process.

Before leaving the Fifth Amendment, it bears mentioning that what ostensibly serves as

the gravamen of plaintiff’s due process claim – i.e., that there is a “complete absence” of any

mechanism to challenge troublesome RFIs – is wildly inaccurate. As stated above, in the wake

of the Fourth Circuit’s Goldstein criticism in this regard, the USPTO created a specific

administrative and judicial review scheme for any action taken by OED personnel during an

investigation. See 37 C.F.R. § 11.2(e). Not only is a dissatisfied practitioner afforded two levels

of administrative review, but any final agency action issued by the USPTO Director on this score

may be appealed to this Court under the APA. Even were due process strictures to attach to

OED investigations – and they do not – the USPTO’s tailor-made process more than adequately

discharge any constitutional obligation.

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B. PLAINTIFF DOES NOT ENJOY FOURTH AMENDMENT PROTECTION WITH


RESPECT TO RFIS

1. Plaintiff also maintains that the RFIs “amount[] to an unreasonable search within the

meaning of the Fourth Amendment.” Complaint, ¶70. It is difficult to comprehend the nature of

plaintiff’s claim in this regard, because OED did not attempt to affect anything approaching the

type of “search” that typically animates Fourth Amendment analysis. Based on the briefing in

Goldstein, however, it appears that plaintiff is attempting to equate the Fourth Amendment

jurisprudence applicable to administrative subpoenas to the RFIs at issue here. See, e.g., United

States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). To the best of undersigned counsel’s

knowledge, there is no decisional authority in this jurisdiction applying this strain of Fourth

Amendment authority to simple requests for information to licensed attorneys during an bar

investigation. This lack of authority is sufficient itself to reject plaintiff’s claim.

Nor should this Court extend Fourth Amendment jurisprudence to encompass RFIs

issued during a fact-finding investigation into putative attorney misconduct. Unlike subpoenas –

which are enforceable through the contempt power of the judiciary – OED RFIs are not

enforceable through any particular mechanism; indeed, failure to comply with a RFI is only

potentially grounds for an independent disciplinary charge, which itself is ultimately adjudicated

through the administrative and judicial review process.9 Cf. In re Bailey, 182 F.3d 860, 862

(Fed. Cir. 1999) (rejecting constitutional arguments against “dilatory and abusive tactics” of a

9
Indeed, the Oklahoma Supreme Court has differentiated between requests for
information to an attorney during a disciplinary investigation and a third-party subpoena during
that same investigation. See Oklahoma ex rel. Oklahoma Bar Ass’n v. Gasaway, 863 P.2d 1189,
1198-1200 (Okla. 1993). During a bar investigation, the Oklahoma Bar Association “asked” the
relevant attorney “to provide information and documents,” but the attorney twice “declined to
respond.” Id. at 1198. In response, the Bar Association transmitted a subpoena to a third-party
bank for similar documentation, and – noting that the court was “amply empowered to enforce a
subpoena issued in the course of Bar disciplinary proceeding” – ultimately applied Fourth
Amendment doctrine to the subpoena. Id. at 1199-1200.

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bar association during attorney investigation “because the court, not the Committee” ultimately

makes “the determination whether [the attorney] will be subject to discipline”).

2. But in any event, even were the Fourth Amendment law applicable to administrative

subpoenas applicable to OED’s RFIs, there can be little doubt that these RFIs would pass

constitutional muster. As the Supreme Court has held, to be consistent with the Fourth

Amendment, an administrative subpoena is sufficient “if the inquiry is within the authority of the

agency, the demand is not too indefinite, and the information sought is reasonably relevant.”

Morton Salt, 338 U.S. at 652-53. Importantly, this standard is extremely fluid, allows an agency

much leeway, and thus “cannot be reduced to formula” because “relevancy and adequacy or

excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and

scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).

In this respect, plaintiff primarily complains about the breadth of OED’s RFIs,

maintaining that because those requests asked him for information about his representational

efforts over a large period of time (and thus concerned a large number of trademark applications

with which he was allegedly involved), they were overly burdensome. But the Fourth Circuit

has rejected this argument under very analogous circumstances in the context of a subpoena that

would have required a physician “to produce more than 15,000 patient files alone, consisting of

between 750,000 and 1.25 million pages of material” that would obviously been sensitive in

nature. In re Subpoena Duces Tecum, 228 F.3d 341, 345 (4th Cir. 2000). As the panel provided:

[I]f Bailey had treated 15,000 patients over a period of seven years and all of them were
reimbursed on claims he submitted, a suspicion of fraud on these claims would justify a
review of Bailey’s documentation of services to these patients, of the claims submitted on
their behalf, and of the reimbursements collected. Even though these documents might
be numerous, they would reasonably relate to and further the government’s legitimate
inquiry, which might be defined by any of 13 federal statutory offenses, including fraud.

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Id. at 350.10 Here, at their allegedly most burdensome, the RFIs that OED tendered to plaintiff

did not seek the production of anything approaching this level of documentation; rather, akin to

an interrogatory, they asked plaintiff a question about his practice. Complaint, ex.B. Because

OED was not required “to ascertain . . . the extent of any wrongdoing” on plaintiff’s part “before

issuing” its RFIs, id. at 351, it was certainly not constitutionally-required to limit its RFIs before

learning of the scope of plaintiff’s putative misconduct.

CONCLUSION

For the foregoing reasons, this Court should dismiss plaintiff’s complaint against the

USPTO.

Respectfully submitted,

DANA J. BOENTE
UNITED STATES ATTORNEY

By: _________/s/____________________
DENNIS C. BARGHAAN, JR.
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3891
Fax: (703) 299-3983
Email: dennis.barghaan@usdoj.gov

DATE: March 22, 2016 ATTORNEYS FOR DEFENDANTS

OF COUNSEL: Tracy Kepler


United States Patent and Trademark Office

10
For this reason, plaintiff’s reflexive invocation of the attorney-client relationship does
not change the constitutional calculus. Indeed, even § 11.801(b) itself provides that a
practitioner cannot be sanctioned merely for refusing to provide information that the rules
otherwise deem confidential, see 37 C.F.R. § 11.106, as a result of the attorney-client
relationship.

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CERTIFICATE OF SERVICE

I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will transmit a true and correct copy of the same to the
following:

Danny M. Howell
Sands Anderson, P.C.
1497 Chain Bridge Road, Suite 202
McLean, Virginia 22101
Email: dhowell@sandsanderson.com

Date: March 22, 2016 ______/s/______________________


DENNIS C. BARGHAAN, JR.
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3891
Fax: (703) 299-3983
Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR DEFENDANTS

28
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EXHIBIT​ ​O
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FILED

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF VIRGINIA
(Alexandria Division) 2311. JAH -b P 3 22

CLERK b'S DISTRICT COURT


Miy.rjm'X yiRwiik
MATTHEW H. SWYERS,

Plaintiff,

V.

UNITED STATES PATENT AND TRADEMARK CASE NO.


OFFICE
JURY TRIAL DEMANDED
and

RONALD K. JAICKS
7115 Devonshire Rd.
Alexandria, VA 22307

and

GERARD A. TAYLOR
815 King St., Apt. 5C
Alexandria, VA 22314-3087

and

LEONARDO VILLARREAL ALEJANDRO


Office of General Counsel
600 Dulany Street
Crystal Park Two, Suite 905
Arlington, VA 22202

and

JANE DOE

Defendants.
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COMPLAINT

Preliminary Statement

1. This is an action for preliminary and final injunction to protect rights safeguarded

by the Constitution, to enjoin any enforcement proceedings to the extent they are based, in whole

or in part, on alleged failures to cooperate with or respond fully to the issuance of "Requests for

information" ("RFIs") by the United States Patent and Trademark Office's ("USPTO") Office of

Enrollment and Discipline ("OED") in violation of Plaintiffs rights under the Fourth and Fifth

Amendments to the Constitution of the United States, and for Bivens damages against certain

federal officers and officials in their personal capacities for violation of Plaintiffs Constitutional

rights to due process and privacy. This action is brought by Matthew H. Swyers ("Swyers"),

against whom the individual Defendants have violated his constitutional rights by issuing

"Requirements for Information" (RFIs) designed to harass, overburden, invade, injure and

damage the Plaintiffand his business, and which violate fiindamental rights to due process by

virtue, among other things, of the complete absence of any means to challenge the RFIs'

overbreadth, oppressiveness, or invasion of the attorney-client privilege, on pains of finding

Swyers guilty of sanctionable conduct for not answering the RFIs to the OED's satisfaction.

2. Specifically, since August 2014, the Defendants have made it increasingly

difficult for Swyersto practice as a trademark attorney before the USPTO by use of obtrusive and

overly burdensome investigatory tactics, through the use of RFIs seeking information on as many

as 15,000 trademark applications filed by Swyers, as to which no avenue exists for challenges

based on breadth, privilege, vagueness, harassment, relevance, or invasion of attorney-client


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privilege, and through direct contacts and issuance of mountains of requests for information to

Swyers' current and former employees. Each RPI that is not answered to the OED's satisfaction

- and none ever are, despite the expenditure of hundreds of thousands of dollars in legal fees and

untold lost hours spent by Swyers himself to answer them, and then answer them again in an

effort to address the OED's endless list of asserted deficiencies and demands for legal analysis

- becomes the basis for an additional "failure to cooperate" charge against Swyers, meaning

that not only is there no way to challenge abusive, overreaching, or privilege-invading requests,

but the requests are accompanied by a threat that anything but acquiescence could result in a loss

of the right to continue in business, with no avenue to seek protection from their use as a

bludgeon against Swyers, his employees, and his clients.

3. The burdensome and oppressive nature of the use of RFIs and the unavailability of

any means of review, forcing respondent to answer on pain of an enforcement action for failing

to do so, has been previously noted by the United States Court of Appeals for the Fourth Circuit.

The practical effect of the constitutional violations is to force practitioners to agree to any

proposed sanctions or leave the practice of trademark law altogether.

4. This suit seeks declaratory and injunctive relief, and monetary damages based on

or resulting from irregular, invasive, disruptive and unreasonable issuance of RFIs by the OED

and, specifically, the individual defendants.

Jurisdiction and Venue

5. This suit seeks relief arising under the Constitution of the United States as

previously noted above. This court has jurisdictionof this action pursuant to 28 U.S.C. § 1331.
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6. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) as the majority of the actions

giving rise to the complaint occurred in Arlington County, Virginia where the OED and USTPO

are headquartered and where the Defendant's offices are located.

Parties

7. Plaintiff Matthew H. Swyers is a U.S. citizen and resident of North Carolina.

Swyers is a practicing trademark attorney before the USPTO located in Alexandria, Virginia, and

is admitted to practice in the Commonwealth of Virginia as well as other jurisdictions.

8. Defendant the United States Patent and Trademark Office is an agency of the

United States.

9. Defendant Ronald K. Jaicks ("Jaicks") at all times relevant hereto was the duly

appointed and acting General Counsel for the OED and a federal officer whose duties include

overseeing the OED, hearing petitions, and making investigatory determinations. Defendant

Jaicks is sued in his individual capacity.

10. Defendant Gerard A. Taylor ("Taylor") at all times relevant hereto was the duly

appointed and acting Staff Counsel for the OED and a federal officer whose duties include

undertaking investigations on the part of the OED. Defendant Taylor is sued in his individual

capacity.

11. Defendant Leonardo Villarreal Alejandro ("Villarreal Alejandro") at all times

relevant hereto was the duly appointed and acting Staff Attorney for the OED and a federal

officer whose duties include undertaking investigations on the part of the OED. Defendant

Villarreal Alejandro is sued in his individual capacity.


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12. Defendant Jane Doe is at all times relevant a duly appointed and acting member of

the OED and a federal officer who participated in the OED investigation of Matthew H. Swyers.

Defendant Jane Doe is sued in her individual capacity.

FACTUAL BACKGROUND

The Trademark Company

13. In 2003, Matthew H. Swyers founded The Trademark Company, PLLC, a Virginia

law firm whose practice is dedicated exclusively to the representation of clients in the protection

of their federal trademark and copyright rights. The firm is an unbundled law practice as

recognized under the ABA Model Rules. From 2003 to the present, the firm has represented

over 20,000 clients.

14. The Trademark Company's practice provides trademark access to thousands of

persons who would not normally be able to afford to protect their intellectually property under

standard law firm pricing structures.

15. Each year, The Trademark Company, through Swyers, handles thousands of

research reports, applications to register marks, refusals to register marks, as well as litigation

concerning trademarks for clients. The Trademark Company has been listed as one of the top

trademark law firms in the United Stated by Intellectual PropertyToday magazine.

16. From 2003 to the present, the firm has represented over 20,000 clients. All of the

thousands of applications for marks are directly filed with the USPTO, which naturally creates a

significant case load for the USPTO examiners.

17. To Plaintiffs knowledge, none of these clients has lodged a complaint with the
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USPTO about Swyers. Rather, upon information and belief, the investigation targeted Swyers

due to the volume of his filings.

Commencement ofInvestigation into Swyers* Work

18. Beginning August 29, 2014, agent Villarreal Alejandro of the Office of

Enrollment and Discipline ("OED") commenced an investigation of Swyers' work as a trademark

lawyer. The investigation was undertaken despite no client complaints, allegations of unethical

behavior or violation of USPTO rules.

19. On or about August 29, 2014 Swyers received an initial Request for Information

("RFI") from the OED seeking information regarding three trademark applications handled by

Swyers. The letter warned that "It is a violation of USPTO Rules of Professional Conduct to fail

to cooperate with the OED in an investigation ..." further threatening "... if you do not respond

to this request for information, the Committee on Discipline may draw an adverse inference in

making a determination..." on the issue.

21. On or about October 29, 2014 Swyers, through counsel, complied with the OED's

request and provided the requested information.

22. Almost immediately, the OED's investigation broadened into an inquiry into

virtually every trademark matter ever handled by Swyers.

Improper Client Contacts and Invasion ofAttorney-Client Privilege

23. Staff attorneys for the OED began contacting various of Swyers' clients by letter

and telephone regarding their trademark applications. For example, on or about December 12,

2014 the OED staff attorney Villarreal Alejandro wrote numerous letters to clients of Swyers,
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without Swyers' prior knowledge or consent, requesting their "...assistance in connection with a

review of [their] trademark application." The letters requested that Swyers' clients confidentially

contact the OED staff attorneys Taylor, Villarreal Alejandro, or Elizabeth Dorsey ("Dorsey").

24. The letters made no mention whatsoever that the OED was investigating anyone,

let alone the recipients' own counsel, or that the purpose of the communication was to gather

evidence in support of that investigation or of potential charges against Swyers.

25. The letters asked about the validity of the marks, specifically whether the clients

had actually provided the marks to The Trademark Company. The letters, by implication,

suggested that a false statement had been made in the application about the mark, a potential

ground for cancellation of the trademark on grounds of fraud. However, the letters made no

mention of this, nor did the letters advise the clients of their rights with regard to answering the

RPIs, or suggest that the clients speak to their attorney or other counsel prior to answering the

RFIs.

26. The letters made no mention of the existence of the attomey-client relationship

between the clients and their attorney, Swyers, nor did they indicate that the privilege could be

deemed waived by answering the RFI.

27. Instead, the letters encouraged Swyers' clients to call the OED staff counsel with

"questions", and provide a written response, without at any time stating that the OED was

investigating Swyers.

28. Upon information and belief, on at least one occasion an OED staff member

called a client of Swyers', asked questions about the application Swyers filed the client's behalf.
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assured the client that they did not need to worry because the caller was not an attorney, and

expressly advised the client that they need not speak with Swyers before answering questions,

again without advising the client regarding the existence of the attorney-client relationship or

about the potential waiver of such privilege.

29. After clients began receiving the letters from the OED, Swyers and his office

received numerous calls from clients inquiring as to the basis for the letters. Ultimately, the

volume of calls reached such a point that on December 16, 2014, Swyers, by counsel, spoke to

the individual defendants herein and requested that they cease all efforts in contacting Swyers'

clients directly and provide a list of clients contacted. OED attorney Jaicks advised that a list

would be provided but never did so.

30. The written and telephonic contacts with Swyers' clients were in violation of Rule

4.3(a) of the Rules of Professional Conduct of the Supreme Court of Virginia, in that the persons

contacted were not represented with regard to the matter, i.e., the investigation of Swyers, the

OED staff attorneys implied that they were disinterested, the OED staff attorneys knew or

reasonably should have known that the unrepresented persons misunderstand the lawyer's role in

the matter, and the OED staff attorneys did not make reasonable efforts to correct the

misunderstanding.

31. The letters themselves contained legal advice in that they described to the clients

what a "specimen" was. Such advice, together with any advice by telephone that the clients did

not need to speak to an attorney before answering the OED's questions, violated Rule 4.3(b) of

the Rules of Professional Conduct of the Supreme Court of Virginia, which prohibits a lawyer

8
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from giving advice to a person who is not represented by a lawyer, other than the advice to secure

counsel, if the interests of such person are or have a reasonable possibility of being in conflict

with the interest of the client.

32. The letters also were violative of Rule 4.2 of the Rules of the Supreme Court of

Virginia, in that they constituted prohibited communication about the subject matter of a

representation with a person the lawyer knows to be represented by another lawyer in the matter,

unless the lawyer has the consent of the other lawyer or is authorized by law to do so. The OED

was soliciting information from Swyers' clients that, in the OED's view, constituted potential

evidence of fraud on the USPTO, which would fall within the subject matter of those clients'

representation by Swyers. Indeed, in a December 19, 2014 telephone communication with

Swyer's counsel, Jaicks and Villarreal Alejandro specifically raised the possibility that the

trademark applications filed by Swyers could be found to be fraudulent and that Swyers' clients

could be damaged.

33. The letters have damaged the reputation of Swyers and his firm.

34. Upon information and belief, the USPTO is not appreciative of the added

workload facilitated by the services provided by Swyers through The Trademark Company or

similar services, which has prompted an investigation by the OED into his firm.

35. Swyers to date has not been informed of any client complaints to the OED or

USPTO.

36. Nevertheless, the OED has embarked on an unwarranted, oppressive, and

unconstitutional investigation of Swyers impacting his ability to practice law, robbing him of
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thousands of hours of professional time in attempts to respond to the OED requests for

information, and costing hundreds of thousands of dollars in legal fees.

RFI Abuses

37. Swyers was served initially with a set of RFIs by Villarreal Alejandro with the

OED on August 29, 2014. The first set of RFIs served on Swyers encompassed 8 inquiries. On

or about October 29, 2014 Swyers, through counsel, complied with the OED's request and

provided the requested information.

38. On December 19, 2014, following production of materials to the OED on October

29, 2014, and following Swyers' objection, through counsel, to the OED's ex parte

communications with Swyers' clients, OED staff attorney Villarreal Alejandro issued a second

set of Requests for Information (the "Second RFI").

39. The Second RFI contained five requests requiring responses and documentation

for over 500 trademark applications ~ thereby constituting, in reality, some 2500 requests. See

Exhibit A hereto. Like the initial RFI, the Second RFI contained an explicit threat of discipline

for non-compliance. See Exhibit A at p. 15.

40. Moreover, question 4 of the Second RFI requested, by inference or otherwise, for

Swyers to review every signing of his name that had ever occurred before the USPTO, to

determine whether any of those signatures were not entered by Swyers. Based upon roughly

16,000 applications bearing his name at the time, and conservatively estimating three signatures

per file, this request asked for Swyers to answer a question concerning 48,000 signatures.

Combining this estimated 48,000-part answer with the prior estimated 2,500 questions, the

10
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OED's Second RFI, in total, requested answers to approximately 50,500 questions or sub-parts.

The RFI required responses by January 9, 2015.

41. In a civil proceeding in a state or federal court, information requests containing

50,000 sub-parts would be subject to objection and the entry of a protective order. Requests for

information that invaded the attorney-client privilege could be addressed similarly. However, no

such process exists, by regulation or otherwise, before the OED, notwithstanding that the penalty

for non-compliance with the OED RFIs encompasses attorney suspension or disbarment.

42. Swyers provided the OED with responses to the second set of RFIs on March 16,

2015.

43. On March 20, 2015, the OED requested a settlement conference at their offices in

Alexandria, Virginia. Swyers agreed, and a date was set and confirmed twice by the OED.

Although Swyers and his counsel at the time, a resident of Boston, Massachusetts, spent

significant time preparing for the conference and expended costs for travel, the OED cancelled

the conference by email the day before and stated that the "evidentiary record was not sufficiently

developed."

44. Despite two rounds of RFIs, a third set of RFIs encompassing 2 requests with

subparts was sent to Swyers on March 31, 2015 including a request for "the full names, mailing

addresses and personal telephone numbers for ALL current AND former employees of The

Trademark Company." This request included dozens of past and current employees from the

time Swyers opened his firm in 2001. The OED demanded a response thereto within fifteen

(15) days. Of note, the third RFI did not contain the explicit threat for non-compliance that was

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included in the first two RFIs.

45. On or about April 15, 2015 Swyers responded to the Third RFIs propounded by

the OED. As part of his response to these third RFIs, Swyers, by counsel, objected to providing

the OED with personal employee information and objected to the OED contacting all current

employees without certain protections in place.

46. On or about April 16, 2015 OED staff attorney Taylor sent a letter threatening

adverse discipline to Swyers if he did not immediately supplement or restate responses provided

in Swyers' April 15, 2015 response to the OED's Third RFIs. See Exhibit B.

47. In response to Taylor's threats, on or about April 27, 2015 Swyers supplemented

the third RFIs and provided all employee information, including personal addresses and phone

numbers to the OED in response to the Third RFIs.

48. In April, 2015, by letter to Taylor, Swyers requested the OED reschedule the prior

settlement conference it had cancelled. Taylor declined the request.

49. On or about May 7, 2015 OED staff attorney Taylor forwarded 14 sets of RFIs to

the 14 then-existing employees of The Trademark Company, none of whom are attorneys. See

Exhibit C. Each RFI directed to each employee contained 64 independent information requests,

including requests for attorney-client privileged communications, totaling 896 RFIs.

50. On or about May 18, 2015, OED staff attorney Taylor forwarded to Swyers the

OED's Fourth RFIs. See Exhibit D. The requests ostensibly consisted of 149 questions, but

totaled at least 332 questions including subparts, and potentially thousands more depending on

the interpretation of the requests' broad language.

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51. Like the initial RFI and Second RFI, the Fourth RFI again contained an explicit

threat of discipline for non-compliance.

52. Swyers again timely provided responses to the fourth set of RPIs to the OED on

June 18,2015, totaling 113 pages of responses.

53. After receipt of Swyer's fourth set of RFIs, the OED responded that Swyers had

failed to provide complete responses to approximately 37 requests contained in the Fourth RFI.

The OED maintained that Swyers had violated 37 C.F.R. § 11.801(b) and was subject to

discipline pursuant to 37 C.F.R. § 11.32 for failing to properly respond.

54. On June 29, 2015 OED staff attorney Taylor forwarded to Swyers, via counsel,

the OED's Fifth RFIs seeking yet more information in the ongoing investigation. See Exhibit E.

The fifth RFIs also requested privileged client correspondence regarding trademark filings.

Once again, given the scope of the requests in conjunction with the subparts thereof the OED's

Fifth RFIs sought answers to hundreds of additional questions fi-om Swyers on an exceedingly

short time frame. Again, OED staff attorney Taylor threatened Swyers, in writing, that failure to

respond to the questions in this investigation would lead to adverse consequences. See Exhibit E.

55. Swyers thereafter provided supplemental responses to the Fourth RFIs, totaling a

dozen single-spaced pages, together with responses to the fifth RFIs, to the OED on November 6,

2015. Despite Swyer's repeated answers to the OED's RFIs, ten days later, the OED again

objected to the supplements to the fourth RFIs and fifth RFIs, maintaining that Swyers had failed

to respond or failed to respond completely to both sets of RFIs, including nearly every single

supplement to the fourth RFIs. The OED threatened that Swyers violated 37 C.F.R. § 11.801(b)

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and was subject to discipline pursuant to 37 C.F.R. § 11.32.

56. Many of the OED's objections to Swyers' comprehensive supplement to the fourth

RFIs: (a) simply repeated the so-called deficiencies of the original 113 page responses to the

fourth RFIs, (b) found minutae in which to claim the responses were incomplete (i.e. the Swyers'

multiple page substantive responses discussed filing "trademark applications" but failed to

specifically state each time that this response also included trademark declarations) or (c) labeled

clear, simple responses as "ambiguous". This confirmed that regardless of Swyers' repeated

attempts to answer the RFIs in full, the OED would continue to label Swyers' responses deficient

no matter the response.

57. The OED also requested in-person interviews with every current employee of the

Trademark Company (most of whom work in North Carolina, but one of whom works in Boston,

Massachusetts), and has interviewed, or attempted to interview, every single former employee of

The Trademark Company. Upon information and belief, the OED has left messages with former

employees seeking to induce them to call the OED personnel by indicating not that the OED was

investigating Swyers, but that the OED was merely seeking to confirm the individual's past

employment.

58. The RFIs were not limited to seeking factual information and documents, but

extended to demands that Swyers provide extensive legal analysis justifying the procedures

utilized by The Trademark Company.

59. Swyers has expended extraordinary efforts in attempts to comply with the

oppressive requests of the OED but has been informed numerous times throughout the

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investigation (April 16, 2015, June 29, 2015 and November 16, 2015) that he has failed to

respond in a manner satisfactory to the OED investigators. Regardless of hov^^ many times and

in how many ways Swyers responds, he is told by the OED that his responses are insufficient and

that he faces prompt adverse consequences subjecting Swyers to independent disciplinary

grounds for failure to respond that could result in suspension of his ability to practice before the

USPTO.

60. Responding to the OED's requests has required Plaintiff to incur over a quarter of

a million dollars in legal fees, and to devote hundreds of hours of time away from his practice,

with additional time and resources having to be spent in efforts to mitigate the damage done to

Swyer's business and reputation.

61. The OED's investigation throughout has been characterized by an utter lack of

procedural safeguards protecting Swyers' rights and his clients'. The OED's requests for written

answers, documents, and justifications of legal positions were clearly overly burdensome and

oppressive and invaded the attorney-client privilege, yet no means existed for Swyers to seek

review and relief from the abusive requests. Nevertheless, Swyers had no option but to answer

the RFIs because failure to comply would itself constitute grounds for disciplinary sanctions.

An attorney should not be compelled to subject himself to disciplinary charges, and the adverse

consequences that may flow therefrom, in order to protect his client's confidences or to challenge

unduly burdensome discovery. Instead, the routinely abusive nature of the requests, the denial

of any avenue for challenge, and the threats of disciplinary action for non-compliance, are

hallmarks of a system lacking those procedural safeguards to which Swyers, or anyone, is entitled

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to under the Constitution.

62. The unbridled oppressive use of RPIs without any means whatsoever to challenge

them, transforms an ethics investigation into a strike suit, forcing attorneys targeted by the OED

to accede to any OED settlement request because of the inability of the practitioner to afford to

comply with the process.

63. After a year and a half of investigation and the extraordinary compliance efforts,

Swyers has still not been apprised in any meaningful way of what it is that he is supposed to have

done wrong. In a manner truly Kafkaesque, the OED's RFIs repeatedly make only vague

references to violations of 45 USPTO Rules of Professional Conduct as being the potential basis

for a determination of violations under 37 CFR § 11.32.

64. Ironically, as best as can be gleaned from the myriad of OED RFIs, the OED's

concerns regarding Swyers' practice appear to be fairly limited: whether in certain instances

paralegals had entered Swyers' electronic signature, the degree to which paralegals assisted in the

preparation of applications, isolated instances of a sample specimen having been uploaded in

error with an electronically submitted application instead of the specimen actually provided by

the client, and the extent to which the acceptance of credit card payments complied with trust

account requirements. Upon information and belief, few if any factual disputes exist between

Swyers and the OED relative to any of these issues, although significant disagreement exists as to

the legal conclusions to be drawn from the facts.

65. Swyers has expended over $250,000 in legal fees in responding to the issuance of

RFIs in this matter. Swyers has also suffered damages due to lost time in an amount in excess of

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$300,000. Swyers has suffered and will continue to suffer ongoing injury to his legal practice

and has been harassed and oppressed in the conduct of his business as a trademark lawyer, all

ostensibly in the name of the proper supervision of lawyers by the USPTO. In addition to

seeking damages for legal fees and professional time required to be expended as a result of

unconstitutional conduct by the individual defendants, Swyers seeks injunctive relief against the

OED proceeding as to disciplinary action that are in any way based on an alleged deficiency in

Swyer's responses to RFIs.

FIRST CLAIM FOR RELIEF


(Violation of Due Process)

66. The Plaintiff Swyers hereby incorporates by reference his responses to paragraphs

1-65 of his complaint as if fully set forth herein.

67. By means of its actions set forth above, the USPTO, through the individual

actions of Taylor, Jaicks, and Villarreal Alejandro violated and continue to violate Swyers' rights

to procedural due process of law safeguarded by the Fifth Amendment of the Constitution

relative to the inquiry into and actions regarding his professional work as a trademark lawyer.

68. The actions of the USPTO, Taylor, Jaicks, and Villarreal Alejandro entitle Swyers

to both injunctive and monetary relief, which is requested by the court.

SECOND CLAIM FOR RELIEF


(Unreasonable Search)

69. The Plaintiff Swyers hereby incorporates by reference his responses to paragraphs

1-68 of his complaint as if fully set forth herein.

70. The OED's and the individual defendants' promulgation of its RFIs to Swyers as

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set forth above amounts to an unreasonable search within the meaning of the Fourth Amendment

of the United States Constitution, entitling Swyers to relief from same. The accompanying

intrusion upon the attorney-client privilege invades Swyer's rights to privacy under the Fourth

Amendment.

71. The actions of the USPTO, Taylor, Jaicks, and Villarreal Alejandro entitle Swyers

to both injunctive and monetary relief, which is requested by the court.

DAMAGES

72. The Plaintiff Swyers hereby incorporates by reference his responses to paragraphs

1-71 of his complaint as if fully set forth herein.

73. The conduct of the individual defendants in violation of Swyers' constitutional

rights entitles Swyers to damages caused thereby, pursuant to Bivens v. Six Unknown Named

Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 388 (1971).

74. The Plaintiff has been damaged as a result of the Defendants' unlawful acts in an

amount to be determined at trial, but in no event less than $550,000.

75. Further pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971) and Davis v. Passman, 442 U.S. 228 (1979), Plaintiff is

entitled to damages including 1) economic damages, 2) compensator damages, 3) court costs

and 4) any other relief the court may deem just and proper.

INJUNCTION/T,R.O.

76. The Plaintiff Swyers hereby incorporates by reference his responses to paragraphs

1-75 of his complaint as if fully set forth herein.

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77. The enforcement of charges of violations of disciplinary rules based in whole or in

part upon the failure of Swyers to answer to the OED's satisfaction RFIs that violate Swyers'

constitutional rights as set forth above, is itself unconstitutional. If such action is not enjoined,

Swyers will suffer immediate and irreparable harm through, among other things, loss of his time,

loss of income, incurring attorney's fees, loss of reputation, and loss of clients. Swyers asks this

Court to enjoin Defendants on a preliminary and permanent basis from the enforcement of

charges of violations of disciplinary rules based in whole or in part upon the failure of Swyers to

answer to the OED's satisfaction RPIs that violate Swyers' constitutional rights.

78. Swyers has no other remedy at law.

WHEREFORE, the Plaintiff Swyers prays unto the court for judgement follows:

1. An award of economic and compensatory damages against the individual

defendants;

2. For a preliminary and permanent injunction from the enforcement of charges of

violations of disciplinary rules based in whole or in part upon the failure of Swyers to answer to

the OED's satisfaction RFIs that violate Swyers' constitutional rights;

3. An award of reasonable costs and attorney's fees; and

4. For such other and further relief as the court may deem just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, a trial by jury is demanded

in this action of all issues so triable.

Dated: January 6, 2016 Respectfully submitted,

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MATTHEW H. SWYERS

SANDS ANDERSON PC

Danny M. Howell (VSB No. 30352)


dhowell@sandsanderson.com
Michael T. Marr (VSB No. 48536)
mniarr@sandsanderson.com
Sarah A. Bucovetsky (VSB. No. 78322)
sbucovetsky@sandsanderson.com
1497 Chain Bridge Road, Suite 202
McLean, VA 22101
(703) 893-3600
(703) 893-8484 (fax)

Counsel for PlaintiffMatthew H. Swyers

20
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 178 of 227

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BBB Accredited Business Profile


TTC Business Solutions, LLC
Business Information
(888) 892-3040
14 years in business
2703 Jones Franklin Rd STE 205
Cary, NC 27518-7172

Additional Phone Numbers


(919) 390-0425
(919) 861-5271

BBB File Opened: 03/15/2010


Business Started: 01/01/2003
Business Started Locally: 01/01/2008
Business Incorporated: 09/01/2009 in NC

Type of Entity
Limited Liability Company (LLC)

Contact Information
Principal: Ms. Amy Reynolds, Member

Business Category
Trademark Consultant

Products & Services


TTC Business Solutions, LLC provides trademark services.
Number of Employees:  12

BBB Accreditation
BBB Accredited Since 03/25/2010
BBB has determined that TTC Business Solutions, LLC meets Standards of BBB Accreditation (https://www.bbb.org//council/for-businesses/about-bbb-accreditation/bbb-accreditation-standards), which include
a commitment to make a good faith effort to resolve any consumer complaints. BBB Accredited Businesses pay a fee for accreditation review/monitoring and for support of BBB services to the public.
BBB accreditation does not mean that the business's products or services have been evaluated or endorsed by BBB, or that BBB has made a determination as to the business's product quality or competency in
performing services.
Standards of BBB Accreditation
Build Trust
An accredited business or organization agrees to:
1. 1. Have been operational (actively selling products or services) in any BBB service area for at least the most recent 6 months, unless the principle(s) previously operated a similar business with an eligible
record (one that qualifies for BBB accreditation).
2. 1. Fulfill contracts signed and agreements reached.
3. 3. Be free from government action that demonstrates a significant failure to support BBB ethical principles in marketplace transactions (this requires a determination by BBB as to the nature of any violation,
whether it was caused or condoned by management, and actions taken to resolve underlying issues that led to the government action).
4. 4. Be free of an unsatisfactory rating and maintain at least a B rating at the accrediting BBB and the BBB where it is headquartered, if different.
5. 5. In its relationship with BBB:
1. 1. meet all applicable standards within this Code of Business Practices
2. 2. cooperate with BBB's activities and efforts to promote voluntary self- regulation within the business' industry
3. 3. honor any settlements, agreements or decisions reached as an outcome of a BBB dispute resolution process
4. 4. complete the required application and pay all monetary obligations to BBB in a timely manner

Advertise Honestly
An accredited business or organization agrees to:
1. 1. Follow federal, state/provincial and local advertising laws.
2. 2. Abide by the BBB Code of Advertising. Supply, upon request, substantiation for advertising and selling claims. Correct advertising and selling practices, when recommended by BBB.
3. 3. Adhere to applicable BBB industry codes of advertising.
4. 4. Cooperate with BBB self-regulatory programs for the resolution of advertising disputes.
5. 5. Use the BBB name and logos in accordance with BBB policy.
6. 6. Avoid misleading customers by creating the false impression of sponsorship, endorsement, popularity, trustworthiness, product quality or business size through the misuse of logos, trustmarks, pictures,
testimonials, or other means

Tell the Truth


An accredited business or organization agrees to:
1. 1. Make known all material facts in both written and verbal representations, remembering that misrepresentation may result not only from direct statements but by omitting or obscuring relevant facts.
2. 2. Ensure that any written materials are readily available, clear, accurate and complete.

Be Transparent

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An accredited business or organization agrees to:


1. 1. Upon request, provide BBB with all information required to evaluate compliance with BBB standards. This may include, but is not limited to business name, address and contact information; names and
background of principles; business and banking references; licensing and/or professional accreditation; and a complete description of the nature of the business.
2. 2. Clearly disclose to customers:
1. 1. direct and effective means to contact the business
2. 2. terms of any written contract
3. 3. any guarantees or warranties accompanying a product
4. 4. any restrictions or limitations imposed (e.g. limited supply,maximum number available per customer)
5. 5. the business' return/refund policy
6. 6. any recurring commitment into which the customer may be entering, including information on how future billing will occur
7. 7. total cost of the transaction, including tax, shipping and handling, and other related charges
3. 3. If selling products or providing services on Web sites or via other electronic means:
1. 1. provide any required product labeling information
2. 2. disclose the nature and terms of shipping, including any known delays or shortages of stock
3. 3. provide an opportunity to review and confirm the transaction before the sale is completed
4. 4. provide a receipt summarizing the transaction after the purchase

Honor Promises
An accredited business or organization agrees to:
1. 1. Fulfill contracts signed and agreements reached.
2. 2. Honor representations by correcting mistakes as quickly as possible.

Be Responsive
An accredited business or organization agrees to:
1. 1. Promptly respond to all complaints forwarded by BBB by:
1. 1. Resolving the complaint directly with the complainant and notifying BBB, or
2. 2. Providing BBB with a response that BBB determines:
1. 1. is professional,
2. 2. addresses all of the issues raised by the complainant,
3. 3. includes appropriate evidence and documents supporting the business' position, and
4. 4. explains why any relief sought by the complainant cannot or should not be granted.
2. 2. Make a good faith effort to resolve disputes, which includes mediation if requested by BBB. Other dispute resolution options, including arbitration, may be recommended by BBB when other efforts to
resolve a dispute have failed. BBB may consider a business' willingness to participate in recommended dispute resolution options in determining compliance with these standards.
3. 3. Comply with any settlements, agreements or decisions reached as an outcome of a BBB dispute resolution process.
4. 4. Cooperate with BBB in efforts to eliminate the underlying cause of patterns of customer complaints that are identified by BBB.

Safeguard Privacy
An accredited business or organization agrees to:
1. 1. Respect Privacy
Businesses conducting e-commerce agree to disclose on their Web site the following:
1. 1. what information they collect,
2. 2. with whom it is shared,
3. 3. how it can be corrected,
4. 4. how it is secured,
5. 5. how policy changes will be communicated, and;
6. 6. how to address concerns over misuse of personal data.
2. 2. Secure Sensitive Data
Businesses that collect sensitive data online (credit card, bank account numbers, Social Security number, salary or other personal financial information, medical history or records, etc.) will ensure that it is
transmitted via secure means.Businesses will make best efforts to comply with industry standards for the protection and proper disposal of all sensitive data, both online and offline.
3. 3. Honor Customer Preferences
Businesses agree to respect customer preferences regarding contact by telephone, fax and e-mail, and agree to remedy the underlying cause of any failure to do so.

Embody Integrity
An accredited business or organization agrees to:
1. 1. Avoid involvement, by the business or its principles, in activities that reflect unfavorably on, or otherwise adversely affect the public image of BBB or its accredited businesses.

BBB Accreditation Reviews


BBB routinely monitors its files on all Accredited Businesses to affirm that they continue to meet all BBB Accreditation Standards

BBB Accreditation - Standards Based Businesses You Can Trust

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BBB Accreditation Process


Not every business is eligible for BBB Accreditation. Businesses must meet, commit to and maintain the BBB Code of Business Practices (Accreditation Standards)  (https://www.bbb.org//council/for-
businesses/about-bbb-accreditation/bbb-accreditation-standards) in order to be eligible for and maintain BBB Accreditation. The BBB Code of Business Practices represents sound advertising, selling and
customer service practices that enhance customer trust and confidence in business. The Code is built on the BBB Standards for Trust, eight principles that summarize important elements of creating and maintaining
trust in business.
In order to be eligible for Accreditation a business must complete an Accreditation application.
Upon receipt of a fully completed BBB Application for Accreditation, BBB staff:

Reviews the application


Researches the business
Verifies the information presented in the application
May request additional information
May request proof of specific information on the application

After the review and verification process, BBB will then evaluate if the business meets the BBB Code of Business Practices (Accreditation Standards). (https://www.bbb.org//council/for-businesses/about-bbb-
accreditation/bbb-accreditation-standards).
Once BBB has finished its evaluation, the application for BBB Accreditation is either approved or denied. If the applicant is found in compliance with the BBB Code of Business Practices it will be presented to the
BBB Board of Directors, or a committee of that board, for final approval. If the application is denied, BBB will contact the applicant, indicating the BBB Standard(s) that were not met and any recourse available to the
applicant.

BBB Rating Scorecard

TTC Business Solutions, LLC


BBB ACCREDITATION SINCE 03/25/2010

A+
BBB Rating System Overview (https://www.bbb.org/council/overview-of-bbb-grade)

Customer Review Rating:


The BBB Customer Review Rating represents the customer's opinion of the business. The Customer Review Rating percentages are based on the total number of positive, neutral, and negative reviews posted.

95%

[71] Positive Reviews (https://www.bbb.org/raleigh-durham/business-reviews/trademark-agents-and-consultants/ttc-business-solutions-in-cary-nc-90173155/reviews-and-complaints?


section=reviews&reviewtype=positive)

[1] Neutral Reviews (https://www.bbb.org/raleigh-durham/business-reviews/trademark-agents-and-consultants/ttc-business-solutions-in-cary-nc-90173155/reviews-and-complaints?


section=reviews&reviewtype=neutral)

[3] Negative Reviews (https://www.bbb.org/raleigh-durham/business-reviews/trademark-agents-and-consultants/ttc-business-solutions-in-cary-nc-90173155/reviews-and-complaints?


section=reviews&reviewtype=negative)

[75] Total Customer Reviews (https://www.bbb.org/raleigh-durham/business-reviews/trademark-agents-and-consultants/ttc-business-solutions-in-cary-nc-90173155/reviews-and-complaints?section=reviews)

[15] Total Customer Complaints (https://www.bbb.org/raleigh-durham/business-reviews/trademark-agents-and-consultants/ttc-business-solutions-in-cary-nc-90173155/reviews-and-complaints?


section=complaints)

Composite Score:
TTC Business Solutions, LLC has received 4.94 out of 5 stars based on 75 Customer Reviews and a BBB Rating of A+.
Comprised of 67% BBB Rating and 33% Customer Review Rating.

The BBB Customer Review Rating represents the customer's opinion of the business. The Customer Review Rating percentages are based on the total number of positive, neutral, and negative reviews posted.
The BBB letter grade represents the BBB's opinion of how the business is likely to interact with its customers. The BBB grade is based on BBB file information about the business. In some cases, a business' grade may be lowered if the
BBB does not have sufficient information about the business despite BBB's requests for that information from the business.

The BBB Customer Review Rating plus the BBB Rating is not a guarantee of a business' reliability or performance. BBB recommends that consumers consider a business' BBB Rating and Customer Review Rating in addition to all other
available information about the business.

BBB Business Profiles may not be reproduced for sales or promotional purposes.
BBB Business Profiles are provided solely to assist you in exercising your own best judgment. Information in this BBB Business Profile is believed reliable, but not guaranteed as to accuracy.
When considering complaint information, please take into account the company's size and volume of transactions, and understand that the nature of complaints and a firm's responses to them are often more important than the number of
complaints.
BBB Business Profiles generally cover a three-year reporting period. BBB Business Profiles are subject to change at any time. If you choose to do business with this business, please let the business know that you contacted BBB for a
BBB Business Profile.

For Consumers
File a Complaint (/consumer-complaints/file-a-complaint/get-started)
BBB Scam Tracker (//www.bbb.org/scamtracker/us)
File an Auto Warranty Complaint (//www.bbb.org/autoline)

For Businesses
Become Accredited (//whybbb.org)
BBB EU Privacy Shield (//www.bbb.org/EU-privacy-shield)

About BBB
BBB Directory (http://www.bbb.org/bbb-locator)
Give.org (http://www.give.org)
Council of Better Business Bureaus (https://www.bbb.org/council)
Contact (https://www.bbb.org/raleigh-durham/get-to-know-us/contact)
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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 182 of 227

EXHIBIT​ ​Q
12/26/2017 Case 5:17-cv-07318 Lawyer Matthew 1-1
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- Vienna, VA Attorney - Page
12/27/17 Avvo 183 of 227
About Reviews Cost Contact

Matthew H Swyers
Save Not yet reviewed

AV V O R AT I N G 7.1

Vienna, VA
Licensed for 21 years
Free consultation

Message

PRACTICE AREAS
Litigation, Trademark infringement, Intellectual property, Trademark application
About Matthew
We at The Trademark Company specialize in trademark litigation, clearance, general counsel, prosecution as
well as domain name disputes. In the trademark litigation arena, we represent our clients in both the
enforcement...
Read more

PRACTICE AREAS
Trademark application: 25%
Our firm provides the most comprehensive suite of trademark services
available online. From Trademark Research to Registration and Renewal
our company will protect your business and brand every step of the way.
16 years, 1,500 cases

Intellectual property: 25%


In addition to our Trademark Research, Registration, and Litigation
practices we also perform all services corollary to such practices such as
the licensing of your intellectual property and related services.
16 years

Trademark infringement: 25%


Once wrongful use of your trademark has been discovered it is critical to
stop others' infringing use of similar or identical trademarks to yours. In
the alternative, if your use of a mark is alleged to infringe upon another's
rights you must defend the allegations or risk loosing your right to
continued use of your mark. We provide both enforcement and defense
services for our clients in regard to the protection of their trademark
assets.25
16 years, 150 cases

Litigation: 25%
With a small firm feel but large firm capabilities our litigation practice
extends throughout the United States. From the enforcement and defense
of marks in U.S. District Courts in the State of Washington down to Los
Angeles, across to Florida, up to Maine and in many states between we
are uniquely prepared to assist you wherever the challenge may be. We
also maintain a significant practice before the Trademark Trial and
Appeal Board, the internal court for the U.S. Trademark Office.
21 years, 4,000 cases

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PRO PRO PRO
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LICENSE

State Status Acquired Updated

DC Active 1998 10/14/2017

VA Authorized 1996 02/13/2017


to practice
law
We have not found any instances of professional misconduct
for this lawyer.
AV V O
CONTRIBUTIONS
Legal answers
4
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4

AWA R D S

Date
Award name Grantor granted

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Award name Grantor granted

Top U.S. Trademark Trademark Insider 2009


Filer Magazine

WORK EXPERIENCE

Title Company name Duration

Principal The Trademark Company 2003 -


Present

Senior Bonner Kiernan Trebach & Crociata, 2002 -


Associate L.L.P. 2003

Trademark United States Patent & Trademark 2000 -


Examining Office 2002
Attorney

Associate Koonz McKenney Johnson Depaolis & 1996 -


Lightfoot - Washington Dc Office, 2000
Johnson Roger C

LEGAL CASES

Case name Outcome

Belgium’s Best vs. Belgium’s Best Won Domain Name


Chocolates Dispute Before the NAF.

• Ameriquest Mortgage Co. vs. Settled with No Damages


AmeriFirst Home Improvement Paid.

Gecko Trading Company vs. Gecko’s Won TTAB Opposition


Toes Proceeding.

See all legal cases

E D U C AT I O N

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School name
About Reviews DegreeCost Graduated
Contact

George Mason University School of JD - Juris 1996


Law Doctor

Columbia University BA - Bachelor 1993


of Arts

George Washington University Masters in IP N/A


National Law Center Law

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Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 187 of 227

EXHIBIT​ ​R
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 188 of 227

By signing and approving, you are verifying subject to perjury that:

1. You are the owner of the mark, it is used in commerce or you intend to use it in commerce and believe you have the right to do so and the specimen (if applicable) shows the mark as used in commerce.
2. To the best of your knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be
likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.
3. To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary
support.
4. You understand that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of
the application or submission or any registration resulting therefrom, and thus you declare that all statements made of your own knowledge are true and that all statements made on information and belief are
believed to be true.
5. By signing, you are authorizing us to collect from you $275 per class as the USPTO filing fee.
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 189 of 227

EXHIBIT​ ​S
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 190 of 227
Case 5:17-cv-07318 Document 1-1 Filed 12/27/17 Page 191 of 227

EXHIBIT​ ​V
12/26/2017 Terms of Service
Case 5:17-cv-07318 Document 1-1 | TTC Business
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12/27/17

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TERMS OF SERVICE

In this Agreement “you” and “your” refer to our customers, prospective customers, and users of our web site,
“we”, “us” and “our” refer to TTC Business Solutions (hereinafter “TTC Business Solutions”) and “Service” refers
to the services provided by us. Any and all use of our services is subject to this Agreement, which may be
updated by us from time to time without prior notice to our customers. Any change of terms shall be binding
and e ective upon posting of the revised Agreement on our web site. In addition to this Agreement, speci c
services or information contained within this web site may be subject to additional posted terms or
guidelines applicable to such services. All such terms or guidelines are hereby incorporated by reference into
this Agreement.

By using TTC Business Solutions website (the “Site”) or any TTC Business Solutions applications or application
plug-ins (“Applications”), you agree to follow and be bound by these Terms of Services (the “Terms of
Services”) and agree to comply with all applicable laws and regulations, including United States export and re-
export control laws and regulations.

It is your responsibility to review these Terms of Services periodically. If at any time you nd these Terms of
Services unacceptable or if you do not agree to these Terms of Services, please do not use this Site or any
Applications.  If you have any questions about these Terms of Services, please Contact Us.

YOU AGREE THAT BY USING THE SITE OR ANY SERVICES PROVIDED BY TTC BUSINESS SOLUTIONS YOU ARE AT
LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.

These Terms require the use of arbitration on an individual basis to resolve disputes, rather than jury
trials or class actions, and also limit the remedies available to you in the event of a dispute.

Please also refer to TTC Business Solutions’ speci c package details, Satisfaction Guarantee, and Privacy
Policy, both of which is incorporated herein by reference.

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General Terms

TTC Business Solutions’ Services

TTC Business Solutions provides online legal information to give visitors a general understanding of the law
and to provide a proprietary software solution to individuals who choose to prepare their own legal
documents. The Site includes general information on commonly encountered legal issues. TTC Business
Solutions’ services also include a review of your answers for completeness, spelling, and for internal
consistency of names, addresses and the like. At no time do we review your answers for legal su ciency,
draw legal conclusions, provide legal advice, opinions or recommendations about your legal rights, remedies,
defenses, options, selection of forms, or strategies, or apply the law to the facts of your particular situation.
TTC Business Solutions is not a law rm and may not perform services performed by an attorney. TTC
Business Solutions, its services, and its forms or templates are not a substitute for the advice or services of an
attorney.

TTC Business Solutions  endeavors to keep its legal documents accurate, current and up-to-date. However,
because the law changes rapidly, TTC Business Solutions  cannot guarantee that all of the information on the
Site or Applications is completely current. The law is di erent from jurisdiction to jurisdiction, and may be
subject to interpretation by di erent courts. The law is a personal matter, and no general information or
legal tool like the kind TTC Business Solutions  provides can t every circumstance. Furthermore, the legal
information contained on the Site and Applications is not legal advice and is not guaranteed to be correct,
complete or up-to-date. Therefore, if you need legal advice for your speci c problem, or if your speci c
problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area.

From time to time, TTC Business Solutions  may perform certain attorney access services and introduce our
visitors to attorneys through various methods, including but not limited to (i) third party attorney directory
listings or (ii) third party limited scope agreements. At no time is an attorney-customer relationship fostered
or created with TTC Business Solutions  through the performance of any such services.

This Site and Applications are not intended to create any attorney-customer relationship, and your use of TTC
Business Solutions  does not and will not create an attorney-customer relationship between you and TTC
Business Solutions  . Instead, you are and will be representing yourself in any legal matter you undertake
through TTC Business Solutions’ legal document service.

Intellectual Property

This web site contains proprietary material that is or may be protected by United States Copyright Law,
Trademark Law, trade secret law, and by international treaty provisions.

All rights not granted to you herein are expressly reserved by TTC Business Solutions. No portion of the
materials obtained from or through this web site may be reprinted, republished, redistributed, reproduced,
retransmitted or otherwise transferred in any form except for your private or internal business use without
our prior express written permission.

TTC Business Solutions, TTC Business Solutions logo and other product and service names are our service
marks. Without our prior permission, you agree not to display or use them in any manner.

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No Resale of Service

You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes,
any portion of our Service(s).

Modi cation and/or Termination of Service

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently,
the Service (or any part thereof) with or without notice.

You agree that we shall not be liable to you or to any third party for any modi cation, suspension or
discontinuance of the Service.

Ownership

This Site and Applications are owned and operated by TTC Business Solutions, LLC. All right, title and interest
in and to the materials provided on this Site and Applications, including but not limited to information,
documents, logos, graphics, sounds and images are owned by TTC Business Solutions. Except as otherwise
expressly provided by TTC Business Solutions, none of the materials may be copied, reproduced,
republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on
this Site or on any applications shall be construed to confer any license under any of TTC Business Solutions’
intellectual property rights, whether by estoppel, implication or otherwise. TTC Business Solutions does not
sell, license, lease or otherwise provide any of the materials other than those speci cally identi ed as being
provided by TTC Business Solutions.  Any rights not expressly granted herein are reserved by TTC Business
Solutions.

Privacy Policy

TTC Business Solutions respects your privacy and permits you to control the treatment of your personal
information.

When you open an account to use or access certain portions of the Site, Applications, or the Services, you
must provide complete and accurate information as requested, through our forms and otherwise through
communication with TTC Business Solutions. When using the Site you will also be asked to provide a user
name and password. You are entirely responsible for maintaining the con dentiality of your password. You
may not use a third party’s account, user name or password at any time. You agree to notify TTC Business
Solutions immediately of any unauthorized use of your account, user name or password. TTC Business
Solutions shall not be liable for any losses you incur as a result of someone else’s use of your account or
password, either with or without your knowledge. You may be held liable for any losses incurred by TTC
Business Solutions, our a liates, o cers, directors, employees, consultants, agents and representatives due
to someone else’s use of your account or password.

In connection with the use of certain TTC Business Solutions products or services, you may be asked to
provide personal information in a questionnaire, application, form or similar document, service, or means.
This information will be protected pursuant to our Privacy Policy. In addition, you grant TTC Business
Solutions a worldwide, royalty-free, nonexclusive, and fully sublicensable license to use, distribute,

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reproduce, modify, publish and translate this personal information solely for the purpose of enabling your
use of the applicable service and to provide you with information concerning other corollary services. You
may revoke this license and terminate rights held by TTC Business Solutions at any time by removing your
personal information from the applicable service.

Email Opt In Notice

When you submit your email address through our web site or provide it to an agent of TTC Business
Solutions over the phone you agree that TTC Business Solutions may use the email address provided to
contact you concerning existing products and services ordered and/or discussed and may further use the
email for direct marketing of similar products or services.  If you choose to opt out of receiving said
communications simply email TTC Business Solutions at info@TTCBusinessSolutions.com expressing your
desire to opt out from our lists or simply click the “unsubscribe” button, if any, in any email communications
you may receive.

Disclaimer

Our web site, including any content or information contained within or provided through it, is provided “as is”
with no representations or warranties of any kind, either expressed or implied, including, but not limited to,
the implied warranties of merchantability, tness for a particular purpose, and non-infringement.

You assume total responsibility and risk for your use of this web site and the information received through
it.  Further, we make no representations whatsoever about other web sites which you may access through
our web site. Note, this disclaimer does not apply to North Carolina consumers.

Use of TTC Business Solutions’ Legal Forms

On our Site, through our Applications and otherwise, we o er self-help “ ll in the blank” forms. If you buy or
download a form on our Site, the terms and conditions of these Terms of Service control. You understand
that your purchase, download, and/or use of a form document is neither legal advice nor the practice of law,
and that each form and any applicable instructions or guidance is not customized to your particular needs by
TTC Business Solutions.

License to Use

TTC Business Solutions grants you a limited, personal, non-exclusive, non-transferable license to use our
forms for your own personal, internal business use, or if you are an attorney or professional, for your client.
Except as otherwise provided, you acknowledge and agree that you have no right to modify, edit, copy,
reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the forms
in any manner, except for modi cations in lling out the forms for your authorized use. You shall not remove
any copyright notice from any form.

Your Warranty and Indemni cation

You represent and warrant to us that your use of the materials contained within this web site will at all times
comply with all applicable laws, rules, regulations, and this Agreement. You hereby agree to indemnify,

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defend and hold harmless our company and our o cers, directors, employees, a liates and subsidiaries
from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses
(including, but not limited to, legal costs and expenses and attorneys’ fees) arising out of or relating to any
breach by you of the foregoing representations, warranties and covenants. You shall cooperate as fully as
reasonably required in the defense of any claim. We reserve the right, at our sole cost and expense, to
assume the exclusive defense and control of any matter otherwise subject to indemni cation by you and you
shall not in any event settle any matter without our prior written consent.

Limitation Of Liability and Indemni cation

EXCEPT AS PROHIBITED BY LAW, YOU WILL HOLD TTC BUSINESS SOLUTIONS AND ITS OFFICERS, MEMBERS,
DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGE, HOWEVER IT ARISES (INCLUDING ATTORNEYS’ FEES AND ALL RELATED COSTS
AND EXPENSES OF LITIGATION AND ARBITRATION, OR AT TRIAL OR ON APPEAL, IF ANY, WHETHER OR NOT
LITIGATION OR ARBITRATION IS INSTITUTED), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR
OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE, ARISING FROM THIS
AGREEMENT AND ANY VIOLATION BY YOU OF ANY FEDERAL, STATE, OR LOCAL LAWS, STATUTES, RULES, OR
REGULATIONS, EVEN IF TTC BUSINESS SOLUTIONS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. EXCEPT AS PROHIBITED BY LAW, IF THERE IS LIABILITY FOUND ON THE PART OF TTC
BUSINESS SOLUTIONS, IT WILL BE LIMITED TO THE AMOUNT PAID FOR THE PRODUCTS AND/OR SERVICES,
AND UNDER NO CIRCUMSTANCES WILL THERE BE CONSEQUENTIAL OR PUNITIVE DAMAGES. SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE PRIOR LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS PARAGRAPH DOES NOT APPLY TO
NORTH CAROLINA CONSUMERS.

Disclaimer of Warranties

THE SITE, APPLICATIONS, AND ALL MATERIALS, DOCUMENTS OR FORMS PROVIDED ON OR THROUGH YOUR
USE OF THE SITE OR APPLICATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE
FULLEST EXTENT PERMITTED BY LAW, TTC BUSINESS SOLUTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TTC BUSINESS SOLUTIONS MAKES NO WARRANTY THAT: (A) THE SITE, APPLICATIONS, OR THE MATERIALS
WILL MEET YOUR REQUIREMENTS; (B) THE SITE, APPLICATIONS, OR THE MATERIALS WILL BE AVAILABLE ON
AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SITE, APPLICATIONS, OR ANY MATERIALS OFFERED THROUGH THE SITE OR
APPLICATIONS, WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, APPLICATIONS,
OR IN RELIANCE ON THE MATERIALS WILL MEET YOUR EXPECTATIONS.

OBTAINING ANY MATERIALS THROUGH THE USE OF THE SITE OR APPLICATIONS IS DONE AT YOUR OWN
DISCRETION AND AT YOUR OWN RISK. TTC BUSINESS SOLUTIONS SHALL HAVE NO RESPONSIBILITY FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY
CONTENT, MATERIALS, INFORMATION OR SOFTWARE.

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NOTWITHSTANDING THE ABOVE, TTC BUSINESS SOLUTIONS OFFERS A SATISFACTION GUARANTEE, THE
TERMS OF WHICH ARE AVAILABLE HERE.  THIS DISCLAIMER OF WARRANTY DOES NOT APPLY TO THE
PURCHASE OF PRODUCTS OR SERVICES BY NORTH CAROLINA CONSUMERS.

Right to Refuse

You acknowledge that TTC Business Solutions reserves the right to refuse service to anyone and to cancel
user access at any time.

Termination

We may terminate this Agreement and your license to use its web site and services at any time and for any
reason.

Cancellation and Completion of Services

You acknowledge that payment for services is required contemporaneous to the services being performed.
 The scope of the services performed under our packages is more fully set forth in the respective packages as
described on-line on TTC Business Solutions’ web site and as purchased and con rmed through the web site
and other con rming correspondence.

TTC Business Solutions’ services are performed at or about the time they are ordered.  You acknowledge that
once the services are performed, despite the outcome of said services, the monies paid for the services
to TTC Business Solutions have been earned.  In the case of our ling package services, you acknowledge that
fees are earned for these packages as of the date of performing work su cient to complete a ling
irrespective of whether the ling is ever completed.  In the event TTC Business Solutions performs services
su cient to complete a ling or other services but said services cannot be fully completed due to the action
or inaction of the customer or other actor Customer agrees that TTC Business Solutions has earned the fees
for the package ordered and that the only refund, if any, the customer may be entitled to is for government
ling fees which ultimately may not have been used.  Additional fees may then apply should the customer
wish to move forward with the ling.

You acknowledge and agree that once an order is placed with TTC Business Solutions you may only cancel
the same for up to 12 hours after the order has been made subject to the limitations above.

Additional services are o ered complimentary to are ling packages so long as you remain a customer of TTC
Business Solutions.  In regard to other services, you acknowledge that the monies paid for services to TTC
Business Solutions have been earned under these arrangements as of the date performing of work su cient
to complete the package purchased.

Governing Law

This Agreement shall be construed, interpreted and governed by the laws of the State of North Carolina
without regard to con icts of law provisions thereof. The exclusive forum for any dispute arising out of or
relating to this Agreement shall be the United States District Court for the Eastern District of North Carolina –
Raleigh, U.S.A. or appropriate state court sitting in Wake County, North Carolina, U.S.A. If any part of this

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Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be interpreted so as to reasonably e ect the intention of the parties.

Accuracy of Information

You acknowledge that the information submitted through our web site will be used in the creation or
protection of legal rights.  Accordingly, it is imperative that the information provided through our web site be
truthful and accurate.

You acknowledge that once your submission has been submitted to any government agency you have 30
days to notify TTC Business Solutions of any typographical or information errors that appear in the
submission.  TTC Business Solutions hereby disclaims responsibility for inaccuracies in submissions not
brought to our attention within this period.

You acknowledge that willful false statements to government agencies and the like may jeopardize the
validity of the documents led and the rights created.

Third-Party Acts and Omissions

You acknowledge that TTC Business Solutions is not responsible for any acts or omissions of third-parties
which may damage o cial documents from a government agency (e.g., U.S. Copyright O ce, U.S. Patent and
Trademark O ce, U.S. Postal Service, and/or state agencies).

Outsourcing

TTC Business Solutions reserves the right to outsource certain speci c tasks to personnel outside of the
company to provide more e cient, e ective, and cost-e ective services for our customers.  You acknowledge
and consent that by engaging TTC Business Solutions for the speci c services provided under our packages
available on our web site that some of these services may be provided by outsourced personnel as outlined
herein.

Waiver

No Waiver by either us or you of any breach or default under this Agreement shall be deemed to be a waiver
of any preceding or subsequent breach or default hereunder.

Privacy Policy

Introduction & Scope

This policy relates solely to the online information collection and use practices of TTC Business Solutions, LLC
(“TTC Business Solutions”) located at www.TTCBusinessSolutions.com (“Web Site”). We recognize that many
visitors and users of this Web Site are concerned about the information they provide to us and how we treat
that information. This Privacy Policy, which may be updated from time to time, has been developed to
address those concerns.

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Your use of this Web Site indicates to us that you have read and accept our privacy practices, as outlined in
this Privacy Policy. If you have any questions or concerns regarding this Privacy Statement, please Contact Us.

What Information About Your Do We Collect?

When you visit our Web Site, you may provide us with two types of information: (1) personally identi able
information that you knowingly choose to disclose, which is collected on an individual basis, and (2) general
user information that does not contain personally identi able information, which is collected on an
aggregate basis as you browse the Web Site. In some cases, if you choose not to provide us with requested
information, you may not be able to access all of our Web Site’s content or services.

Personally Identi able Information

We may ask for certain personal information from you for the purpose of providing to you content and/or
services that you request. For example, if you indicate an interest in receiving materials, or if you want to
utilize a speci c service, you may be asked to submit your name, institution, city, country and e-mail address.
We also request your name and e-mail address and other contact details each time you contact us by clicking
on the Contact Us link. We may retain a record of users who have contacted us in order to respond properly
to questions or concerns and for purposes of future communications.

Non-personally Identi able Information We Collect

Similar to other commercial Web sites, our Web Site may utilize standard technology called “cookies” and
Web server logs to collect information about how our Web Site is used. Cookies are a feature of Web browser
software that allows Web servers to recognize the computer used to access a Web site. Cookies are small
pieces of data that are stored by a user’s Web browser on the user’s hard drive. Information gathered
through cookies and Web server logs may include the date and time of visits, the pages viewed, time spent at
our Web Site, and the Web sites visited just before and just after our Web Site This information is collected
on an aggregate basis. None of this information is associated with you as an individual.

You can, of course, disable cookies on your computer by indicating this in the preferences or options menus
in your browser. However, it is possible that some parts of our Web Site will not operate correctly if you
disable cookies. You should consult with your browser’s provider/manufacturer if you have any questions
regarding disabling cookies.

Privacy protections for children using the Internet Protecting children’s privacy is important to us. For that
reason, we do not collect or maintain information on our Web Site from those we actually know are under
the age of 13, nor is any part of our Web Site targeted to attract anyone under 13. We request that all visitors
to our Web Site who are under 13 not disclose or provide any personally identi able information. If we
discover that a child under 13 has provided us with personally identi able information, we will delete that
child’s personally identi able information from our records.

How Do We Use and Share the Information We Collect?

We hold your contact details and email address in our customer database. We use those details to keep you
informed about our company, our products and our services or to provide you with the content or

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information you have requested. We share this information with our a liated companies and partners. If any
of your details are incorrect, if you no longer wish to receive emails or marketing materials from us or you do
not want us to share your details with our a liates and partners, please let us know by sending an email to
info@TTTCBusinessSolutions.com or a letter to TTC Business Solutions, LLC, 2703 Jones Franklin Rd., Suite
205, Cary, North Carolina, 27518.

We use non-identifying information collected on our Web Site in the aggregate to better understand your use
of the Web Site and to enhance your enjoyment and experience. For example, we may use the information to
improve the design and content of our Web Site or to analyze the programs and services that we o er.

Additional Disclosure of Your Information

We may provide access to your personally identi able information when legally required to do so, to
cooperate with police investigations or other legal proceedings, to protect against misuse or unauthorized
use of our Web Site(s), to limit our legal liability and protect our rights, or to protect the rights and safety of
visitors to our Web Site(s) or the public. In those instances, the information is provided only for that limited
purpose.

We may employ other companies and individuals to perform functions on our behalf. Our agents and
contractors who have access to your personally identi able information are required to protect the
information in a similar manner that is consistent with this privacy statement.

We will not share your personally identi able information in ways unrelated to those described above
without providing you with an opportunity to opt out of such use or otherwise prohibit such unrelated uses.

How Do You Access and/or Modify Your Information or Choices

If you visit our Web Site and volunteer personally identi able information, you may modify, update or delete
such information at any time or update your preferences regarding what information you want to receive
from us by clicking on the Contact Us link. When supplying personal information using one of the online
forms on the Web Site, you have the option to opt out from receiving marketing and promotional material
relating to our products and services. However, please be aware that your ability to opt out from receiving
marketing and promotional materials does not change our right to contact you regarding your use of our
Web Site or subscriptions you may have ordered either for trial or purchase.

Consent to Transfer

This Web Site is operated in the United States. If you are located outside of United States please be aware
that any information you provide to us will be transferred to United States. By using our Web Site,
participating in any of our services and/or providing us with your information, you consent to this transfer.
The information you provide may also be transferred to other parts of the TTC Business Solutions, our
a liates or partners outside of United States in order to provide the information or service you have
requested. All reasonable care will be taken to ensure data security and adherence to these privacy practices.

Links

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This Web Site may contain links to third party sites as well as to other sites owned and/or operated by TTC
Business Solutions. Please be aware that TTC Business Solutions is not responsible for the privacy practices
of any third party sites. Please also be aware that the privacy policies of other TTC Business Solutions sites
may di er signi cantly from the privacy policy of this Web Site. Therefore, we encourage our users to read
the privacy policy of each and every Web site that collects personally identi able information. This Privacy
Policy applies solely to information collected by this Web Site.

How to Contact Us

For further details on any items associated with this policy or this Web Site, please Contact Us.

Changes to the Policy

From time to time, we may change our privacy policies. If we make a change, it will not a ect the choices you
have made about any information you gave us before that change. Any changes will be re ected in our
Privacy Policy.

Privacy Complaints

We are committed to working with you to resolve, quickly and fairly, any complaints you may have about
privacy. If you have any questions or comments, please Contact Us using the online form.

Data Security

We take reasonable steps to maintain the security of the personally identi able information that we collect,
including limiting the number of people who have physical access to our database servers, as well as
installing electronic security systems that guard against unauthorized access. However, no data transmission
over the Internet can be guaranteed to be completely secure. Accordingly, we cannot ensure or warrant the
security of any information that you transmit to us, so you do so at your own risk.

Identi cation

This Web Site is controlled and maintained by:

TTC Business Solutions, LLC


2703 Jones Franklin Road, Suite 205
Cary, NC 27518
United States

Satisfaction Guarantee

Our Satisfaction Guarantee, our consumer satisfaction process, is incorporated into this General Service
Agreement by reference.  For additional information on our Satisfaction Guarantee click here.

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Corporate Veil Guarantee

How the Corporate Veil Guarantee Works

First, use TTC Business Solutions to form a corporation, nonpro t, LLP, or LLC by phone or online. Second, we
will process your paperwork with the state you select. Third, follow our step-by-step checklist to keep your
corporate veil in place for our guarantee to apply. Fourth, if a judgment from a court of law against your
business pierces you’re your corporate veil and you’re held personally liable for the debts of the business we
will reimburse you for up to $75,000 U.S. for legal defense fees.

Terms and Conditions

TTC Business Solutions guarantees your company’s ability to keep its corporate veil intact when you follow
our step-by-step Corporate Veil Guarantee Checklist(s), within the designated time frames and subject to the
terms and conditions below. In the event that TTC Business Solutions is your nonpro t, corporation’s or LLC’s
active Registered Agent, your company has followed all applicable compliance steps listed below, and your
company’s corporate veil is pierced by a court decision holding the company’s owner(s), o cer(s), director(s),
manager(s), and/or member(s) personally liable for the debts and contractual obligations of the company,
TTC Business Solutions will, subject to the terms and conditions below, compensate your company for up to
$75,000 in reasonable, documented legal defense expenses incurred by your nonpro t, corporation or LLC in
connection with the defense against the claim resulting in the piercing of the corporate veil. We are so
con dent that our program will help your company maintain its good standing with the state and continue
the personal nancial protection of your company’s nonpro t, incorporation or LLC formation we provide
this guarantee.

Corporate Veil Guarantee Checklist

In order to qualify for this reimbursement, your company must demonstrate and certify that it has met each
of the following requirements:

File valid incorporation or organizational documents with the state of incorporation or formation, and pay
associated ling fees.
Draft bylaws or LLC operating agreement upon formation of the company to provide details of how
internal a airs of the company will be managed.
Con rm and ensure that no company funds or other assets are commingled with those of any other
entity or individual.
Maintain the company’s third-party registered agent relationship with TTC Business Solutions or another
independent registered agent.
File annual report(s) and make franchise tax payments with the state of incorporation or organization,
and with state(s) where quali ed to do business in a timely manner.
File amendments to led incorporation or organizational documents upon a change of the name of the
company or a change in the amount of authorized stock (if a corporation), or upon any change that would
make the current incorporation or organizational documents no longer accurate, and le all amendments
to led documents that are required by applicable law.

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File applications and pay all required fees for quali cation as a foreign corporation or limited liability
company in all states where the company is “doing business” (as that term is de ned in the relevant
jurisdictions).
Submit all tax reports and payments to local, state, and federal governments in a timely manner.
Document loans to and from shareholders, directors, unit holders, members, managers, o cers and
employees with a promissory note and, if applicable, a security agreement and UCC-1 nancing
statement.
Pay the company’s annual registered agent fee to its registered agent.
Con rm and ensure that the company was formed for a legal purpose and has not engaged in any illegal
activity.
Con rm and ensure that the company has su cient capital given the nature and the risks of the business
in which it is engaged.
Review bylaws or LLC operating agreement to ensure that the company’s current business practices are in
accordance with documented requirements and promptly complete any appropriate updates to comply.
Con rm and ensure that no personal expenses are paid out of company funds or assets.
Con rm and ensure that the company keeps its own accounting records separate from those of other
entities or individuals.
Pay unemployment insurance and Social Security withholding.
Conduct business in the company’s name only. When doing business with third parties, including entering
into agreements, the company’s o cers, directors, managers, and agents must make it clear that they are
acting on behalf of the company (and not in their individual capacity), and not make any statements or
take or fail to take any actions that in any way call into question or dispute the company’s validity,
legitimacy, and/or good standing. O cers and agents should use their proper titles and be sure to use the
company’s full and correct name.
No less than once per year request a Certi cate of Good Standing from the state(s) where the company
was formed and the state(s) where the company does business.
To the extent that the company conducts business under a name other than its full corporate or LLC
name (e.g., a trade name or “doing business as – DBA”), con rm and ensure that the company’s use of
such name complies with all applicable laws and statutory and registration requirements, and that it is
reasonably apparent that the business conducted under such name is the business of the company itself,
and not an individual, unincorporated or unformed entity.

Additional Requirements for Corporations

This checklist includes additional requirements speci cally for corporations.

Begin and regularly maintain a corporate minute book and include: a copy of the incorporation
documents led with the state and all amendments thereto; the corporation’s organizational action; copy
of the bylaws; minutes of all meetings of shareholders and directors; all resolutions passed by
shareholders and directors; an accurate and up-to-date stock register; records of any signi cant corporate
activities, including loans, purchases, leases, and payment of compensation to o cers.

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After the consideration has been paid for the stock, issue signed stock certi cates to the shareholders and
prepare and regularly maintain the stock register showing the ownership of the corporation’s stock.
Hold director and shareholder meetings (or execute written consents for corporate actions) at least
annually.
Elect o cers and directors upon formation of the corporation and con rm and ensure the accuracy of
their names and contact information at least annually.
Update the stock register as new shares are issued and issued shares are transferred.

Additional Requirements for LLCs

This checklist includes additional requirements speci cally for Limited Liability Companies (LLCs).

Begin and regularly maintain a company record book and include: a copy of the organizational documents
led with the state and all amendments thereto; the company’s organizational action; copy of the LLC
operating agreement; minutes of all meetings of members and/ or managers; a copy of all signed
consents listing resolutions passed by members and/or managers; an accurate and up-to-date interest
register; and records of any signi cant company activities, including loans, purchases, leases, and
payment of compensation to o cers.
After the consideration has been paid for the units of interest in the company, issue signed interest
certi cates to the members, if applicable, and prepare and regularly maintain the interest register
showing the ownership interests of each member.
Con rm and ensure that o cers’, members’, and managers’ names and contact information are accurate.
Update the interest register as new units of interest are issued and issued units of interest are
transferred.
Hold manager and/or member meetings (or execute written consents for company actions) at least
annually, if required by the LLC Operating Agreement.

Additional Terms & Conditions

TTC Business Solutions’ Corporate Veil Guarantee is also subject to the following Additional Terms and
Conditions:

The Corporate Veil Guarantee is activated only when a third party successfully pierces the corporate veil
of the covered company and, as a result, the owners, directors, o cers, managers or members of the
company are held personally liable for the debts and contractual obligations of the covered company to
third parties, as determined by a court of competent jurisdiction in the United States.
In order to become and remain eligible for the Corporate Veil Guarantee, the covered company must fully
complete and comply with all applicable designated activities in our Corporate Veil Guarantee Checklist
within the required time frames and agree to be subject to the terms and conditions outlined herein. The
Corporate Veil Guarantee is not available or e ective if the company is or has been past due or non-
compliant with any of the applicable checklist activities. Eligibility for the Corporate Veil Guarantee and
the guarantees thereunder is subject to nal determination by TTC Business Solutions.

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The Corporate Veil Guarantee does not cover claims asserted in connection with any bankruptcy
proceeding.
The Corporate Veil Guarantee does not cover claims against the company made by or through the IRS,
any other governmental taxing authority, or any other government agency.
The Corporate Veil Guarantee is only available and e ective during the period of the covered company’s
Business Compliance Calendar service with TTC Business Solutions. Events prior to the customer’s
enrollment in the program or after a termination of this service are not covered.
The Corporate Veil Guarantee does not provide coverage for claims relating to illegal or fraudulent
activities, improper conduct by the company’s owners, o cers, directors, managers, members or agents,
or intentional misconduct or grossly negligent conduct.
In the event of a claim against the Corporate Veil Guarantee, to receive payment approval the covered
company will be required to provide valid documentation of (1) the timely and full completion of and
compliance with each applicable Corporate Veil Guarantee Checklist activity and (2) the covered legal
defense expenses incurred.
The Corporate Veil Guarantee coverage is not insurance and is limited to reasonable and documented
legal defense expenses incurred and paid by the covered company in direct connection with the
company’s good faith defense against a corporate veil piercing claim brought against the company in a
court of competent jurisdiction in the United States.
The covered company’s sole recourse against TTC Business Solutions under or related to the Corporate
Veil Guarantee shall be reimbursement for legal defense expenses as expressly provided herein and in no
event shall TTC Business Solutions be liable to the covered company or any other person or entity for any
other claims, bene ts, damages or expenses arising under or related to the Corporate Veil Guarantee.
In no event will coverage under the Corporate Veil Guarantee with respect to a covered company exceed
U.S. $75,000.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, TTC BUSINESS
SOLUTIONS MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY, WARRANTY, EITHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE CORPORATE VEIL GUARANTEE. THE CORPORATE VEIL GUARANTEE IS NOT
AVAILABLE AND DOES NOT APPLY TO RESIDENTS OR CONSUMERS IN THE STATE OF NORTH CAROLINA.
TTC Business Solutions may modify any of the terms and conditions of the Corporate Veil Guarantee
and/or terminate the Corporate Veil Guarantee, in whole or in part, at any time and in TTC Business
Solution’s sole discretion.
The covered company’s participation in, and rights under, the Corporate Veil Guarantee are not
transferable or assignable without the prior written consent of TTC Business Solutions.
The Corporate Veil Guarantee and these terms and conditions shall be governed by the laws of the State
of North Carolina without regard to its con ict of laws principles. Any action against TTC Business
Solutions relating to the Corporate Veil Guarantee or these terms and conditions must be brought in the
federal or state courts located in North Carolina, and by participating in the Corporate Veil Guarantee the
covered company submits to the exclusive jurisdiction of such courts with respect to any such action.
No aspect of the Corporate Veil Guarantee or these terms and conditions shall be deemed to create any
partnership, joint venture or agency relationship between the covered company and TTC Business
Solutions.

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The Corporate Veil Guarantee is subject to all applicable laws, rules and regulations and is void where
prohibited. The Corporate Veil Guarantee is not intended to, and does not, cover any company in any
jurisdiction or country where such coverage or the company’s participation in the Corporate Veil
Guarantee is contrary to or impermissible under any applicable law, rule or regulation.

Package-Speci c Terms of Service

Business Services

Business Name Availability Package

The Company guarantees it will use its best e orts in researching, completing, and delivering the report
concerning your complimentary Business Name Availability Package.  However, due to the nature of various
states’ laws it is possible that the complimentary Business Name Availability Package may not identify a prior
entity that may block the registration or organization of your entity before that state.

In the unlikely event your check does not include a blocking entity name we will re le for a new entity for you
at no additional cost save for the required government ling fees.  The customer agrees that this is the best
and sole remedy should this unlikely event occur.

Additionally, TTC Business Solutions reserves the right to terminate or refuse services under this package for
any reason.

LLC, Corporation, LP, LLP, Nonpro t, and Sole Proprietorship Formation Packages

Use of TTC Business Solutions’ services to organize or form your entity does not guarantee that your entity
will be organized and/or formed with the respective state agency.  Speci cs of each service package provided
are incorporated by reference herein.

In the unlikely event your entity name is not available or is blocked we will re le for a new entity for you at no
additional cost save for the required government ling fees.  The customer agrees that this is the best and
sole remedy should this unlikely event occur.

By accepting this terms of service, you hereby grant TTC Business Solutions a limited power of attorney to
execute those forms required to form your entity if so required.

TTC Business Solutions’ makes no warranties that your use of the name of the business provided is
authorized by law or cannot be challenged by potential third parties known or unknown.

Business Compliance Calendar

Our Business Compliance Calendar provides notice to you of your entity’s Annual or Biennial report ling
obligations.  It does not include ling of your entity’s Annual or Biennial reports which is a separate service
o ered by TTC Business Solutions.

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Our Business Compliance Calendar does not provide information or notice regarding other obligations an
entity may or may not have save for that speci cally referenced herein.

In the unlikely event that our Business Compliance Calendar fails to notify you of your entity’s Annual or
Biennial report ling obligations we will, upon purchase of the appropriate Annual Reports Package, pay for
any fees required to reinstate your entity up to $500, as applicable.  The customer agrees that this is the best
and sole remedy should this unlikely event occur.

Business Plan, Business Consulting, and Business Plan Platinum Packages

You agree and understand that once you have been provided access to our proprietary software for the
purpose of creating your business plan, business consulting, or combined business plan and consulting
reports, we have provided you with the means through which to create to the same. Accordingly, once
provided you will only be entitled to a $100 refund if you do not provide the answers su cient to nalize the
Business Plan Platinum Package or $50 if you do not provide the answers su cient to nalize the Business
Plan or Business Consulting Package(s), respectively.

Trademark Services

Basic Federal Database Search

Our Basic Federal Database Search conducts a search of the Federal Trademark Database operated by the
U.S. Patent and Trademark O ce.  The service is limited to identifying potential blocking trademarks in the
database which would create an impediment to the registration of the searched trademark by searching for
and examining:

Direct Matches;
Near Matches and Similar Trademarks;
Phonetic Equivalents; and
Translation or Foreign Equivalents.

Your Basic Federal Database Search report is then delivered to you within three (3) business days of the
completion of your order including payment therefor.  The Company reserves the right to alter the delivery
date of your report provided advanced notice is provided to you.  Our research as to whether your
trademark is available to be registered before the U.S. Patent & Trademark O ce for this report is expressly
limited to potential blocking trademarks existing on the database as of the date of the search.

Your Basic Federal Database Search may include up to ve (5) classes of goods and services.  If the search
involves more than ve (5) classes of goods and services additional reports may need to be purchased.

The Company guarantees it will use its best e orts in researching, completing, and delivering the report
concerning your trademark.  However, due to the subjective nature of trademark law it is possible, albeit
extremely rare, that a Basic Federal Database Search may not identify a prior pending trademark application
that is later cited as an impediment to the registration of your trademark.

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Upon performing the Basic Federal Database Search if the report identi es a trademark that you believe may
be an impediment to your registration within the scope of this service prior to ling you have two options:

First, should you wish to research an alternative trademark you will receive a 10% discount o of the regular
price for another Basic Federal Database Search.  There is no limit to the number of alternative trademarks
to which this discount will apply.

Second, and in the alternative, our customers can proceed with the ling and if the trademark is refused
registration on the grounds identi ed receive a 10% discount o any of our Substantive O ce Action
Response Packages (Substantive).

In the unlikely event your report does not include a potential blocking trademark which, upon examination of
the search strategy and results you received, should have been identi ed in your report prior to ling your
trademark and, moreover, it is refused on that basis we will provide a complimentary self-directed O ce
Action response using our proprietary software to respond to the refusal at no additional cost to you.  The
customer agrees that this is the best and sole remedy should this unlikely event occur.

The Basic Federal Database Search makes no warranties that your use of the any trademark is authorized by
law or cannot be challenged by potential third parties known or unknown.

Comprehensive U.S. Trademark Search

Our Comprehensive U.S. Trademark Search conducts a search of the Federal Trademark Database operated
by the U.S. Patent and Trademark O ce as well as all 50 state trademark databases, a national corporate
ling database as well as registered domain name search (.com, .net, .org).  The service is designed to
research all potential blocking trademarks on the U.S. Patent and Trademark O ce’s federal register as well
as generally identify other potential refusals which could be encountered when trying to register the
trademark with the U.S. Patent and Trademark O ce.  The other information in the report is designed to
identify other common law use of trademarks which may otherwise a ect your federal rights.

Your Comprehensive U.S. Trademark Search report is delivered to you within three (3) business days of the
completion of your order including payment therefor.  The Company reserves the right to alter the delivery
date of your report provided advanced notice is provided to you.

Your Comprehensive U.S. Trademark Search may include up to ve (5) classes of goods and services.  If the
search involves more than ve (5) classes of goods and services additional reports may need to be
purchased.

The Company guarantees it will use its best e orts in researching, completing, and delivering the report. 
However, due to the subjective nature of trademark law it is possible, albeit extremely rare, that a
Comprehensive U.S. Trademark Search may not generally identify a potential basis for the refusal of your
trademark.

Upon performing the Comprehensive U.S. Trademark Search if the report identi es a trademark that you
believe may be an impediment to your registration or if you believe there is any other reason for not moving
forward with the ling prior to ling you have two options:

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First, should you wish to research an alternative trademark you will receive a 10% discount o of the regular
price for another Comprehensive U.S. Trademark Search.  There is no limit to the number of alternative
trademarks to which this discount will apply.

Second, and in the alternative, our customers can proceed with the ling and if the trademark is refused
registration on the grounds identi ed receive a 10% discount o any of our Substantive O ce Action
Response Packages (Substantive).

In the unlikely event your report does not include a potential blocking trademark or other grounds of refusal
which, upon examination of the search strategy and results you received, should have been identi ed in your
report prior to ling your trademark and, moreover, it is refused on that basis we will provide a
complimentary self-directed O ce Action response using our proprietary software to respond to the refusal
at no additional cost to you.  The customer agrees that this is the best and sole remedy should this unlikely
event occur.

The Comprehensive U.S. Trademark Search makes no warranties that your use of the any trademark is
authorized by law or cannot be challenged by potential third parties known or unknown.

Comprehensive U.S. & International Trademark Search

Our Comprehensive U.S. & International Trademark Search conducts a search of the Federal Trademark
Database operated by the U.S. Patent and Trademark O ce, all 50 state trademark databases, the World
Intellectual Property Organization (WIPO) database, the Canadian Federal Trademark database, the European
Community database, the German Federal database, the France Federal database, as well as a national
corporate ling database and a registered domain name search (.com, .net, .org).  The service is designed to
identify all potential blocking trademarks on the U.S. Patent and Trademark O ce’s federal register and the
foreign registers searched as well as generally discuss other potential refusals which could be encountered
when trying to register the trademark with the U.S. Patent and Trademark O ce or foreign registers
searched.  The U.S. state, corporate, and domain name information in the report is designed to identify other
common law use of trademarks which may otherwise a ect your U.S. federal rights.

Your Comprehensive U.S. & International Trademark Search report is delivered to you within three (3)
business days of the completion of your order including payment therefor.  The Company reserves the right
to alter the delivery date of your report provided advanced notice is provided to you.

Your Comprehensive U.S. & International Trademark Search may include up to ve (5) classes of goods and
services.  If the search involves more than ve (5) classes of goods and services additional reports may need
to be purchased.

The Company guarantees it will use its best e orts in researching, completing, and delivering the report. 
However, due to the subjective nature of trademark law it is possible, albeit extremely rare, that a
Comprehensive U.S. & International Trademark Search may not generally identify a potential basis for the
refusal of your trademark.

Upon performing the Comprehensive U.S. & International Trademark Search if the report identi es a
trademark that you believe may be an impediment to your registration or if you believe there is any other

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reason for not moving forward with the ling prior to ling you have two options:

First, should you wish to research an alternative trademark you will receive a 10% discount o of the regular
price for another Comprehensive U.S. & International Trademark Search.  There is no limit to the number of
alternative trademarks to which this discount will apply.

Second, and in the alternative, our customers can proceed with the ling and if the trademark is refused
registration on the grounds identi ed receive a 10% discount o any of our Substantive O ce Action
Response Packages (Substantive).

In the unlikely event your report does not include a potential blocking trademark or other grounds of refusal
which, upon examination of the search strategy and results you received, should have been identi ed in your
report prior to ling your trademark and, moreover, it is refused on that basis we will provide a
complimentary self-directed O ce Action response using our proprietary software to respond to the refusal
at no additional cost to you.  The customer agrees that this is the best and sole remedy should this unlikely
event occur.

The Comprehensive U.S. & International Trademark Search makes no warranties that your use of the any
trademark is authorized by law or cannot be challenged by potential third parties known or unknown.

International Trademark Search

Our International Trademark Search may use third party services to complete the search of your requested
trademark and the requested country.

The Company guarantees it will use its best e orts in researching, completing, and delivering the report
and/or having its third party sources perform the same.  However, due to the subjective nature of trademark
law it is possible, albeit extremely rare, that a International Trademark Search may not generally identify a
potential basis for the refusal of your trademark for the registers searched.

As a result, you acknowledge that TTC Business Solutions cannot be held responsible for errors or omissions
in your report as a result of a third-party vendor.

Economy U.S. Registration Package

Our Economy U.S. Registration Package does not include a Direct Hit Search or any other search for
trademarks that are phonetically similar, similar in terms of translation, or appearance by way of design prior
to submission with the U.S. Patent and Trademark O ce.

You hereby consent to TTC Business Solutions using a TTC Business Solutions’ maintained email address to
receive electronic correspondence from the U.S. Patent and Trademark O ce concerning the status of your
application.  Upon receipt thereof, TTC Business Solutions will provide you with notice of the same.  For any
registration which results from the submission of the application you acknowledge that the U.S. Patent and
Trademark O ce will mail the same directly to you or the o cial correspondence record for the application
you provide to TTC Business Solutions.

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You may include up to three (3) goods or services from the Acceptable Goods and Services Manual of the U.S.
Patent and Trademark O ce within this package.  If you would like to include more goods and services
additional fees may apply.

Purchase of our Economy U.S. Registration Package does not guarantee that your trademark will be
registered with the U.S. Patent and Trademark O ce.  Our Economy U.S. Registration Package does not
include responding to Procedural or Substantive Refusals.  Further, it makes no warranties that your use of
the any trademark is authorized by law or cannot be challenged by potential third parties known or
unknown.

Additionally, you agree that additional charges in the nature of our Voluntary Amendment Package may
apply to any changes requested by you to forms by TTC Business Solutions based upon information you
supplied to the Company wherein you unilaterally decide to change or amend information so supplied prior
to the form(s) being transmitted to the U.S. Patent and Trademark O ce.

U.S. Trademark Registration – Internet Special

You hereby consent to TTC Business Solutions using a TTC Business Solutions’ maintained email address to
receive electronic correspondence from the U.S. Patent and Trademark O ce concerning the status of your
application.  Upon receipt thereof, TTC Business Solutions will provide you with notice of the same.  For any
registration which results from the submission of the application you acknowledge that the U.S. Patent and
Trademark O ce will mail the same directly to you or the o cial correspondence record for the application
you provide to TTC Business Solutions.

All packages sold through our Internet Special are charged a government ling and processing fee of $275
per class of goods and services. Speci cally, this includes a $225 government ling fee and a processing fee
of $50 for TTC Business Solutions.

You may include up to three (3) goods or services from the Acceptable Goods and Services Manual of the U.S.
Patent and Trademark O ce within this package.  If you would like to include more goods and services
additional fees may apply.

Purchase of a package does not guarantee that your trademark will be registered with the U.S. Patent and
Trademark O ce.  Further, it makes no warranties that your use of the any trademark is authorized by law or
cannot be challenged by potential third parties known or unknown.

Additionally, you agree that additional charges in the nature of our Voluntary Amendment Package may
apply to any changes requested by you to forms by TTC Business Solutions based upon information you
supplied to the Company wherein you unilaterally decide to change or amend information so supplied prior
to the form(s) being transmitted to the U.S. Patent and Trademark O ce.

Standard and Standard Plus U.S. Registration Packages

Upon submission of a Standard or Standard Plus U.S. Registration Package request a Direct Hit Search will be
performed of the U.S. Patent and Trademark O ce’s records. Our Direct Hit Search includes a search of your
exact trademark of the U.S. Patent and Trademark O ce records.

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It does not include a search for trademarks that are phonetically similar, similar in terms of translation, or
appearance by way of design.

You agree that should a trademark be encountered which could block the registration of your trademark in
our preliminary Direct Hit Search upon request we will refund you all but $75 of the monies paid for the
Standard or $95 of the monies paid for the Standard Plus U.S. Registration Package provided the request is
made prior to submission of the trademark with the U.S. Patent and Trademark O ce.  Further, should you
cancel your order for any reason following submission of a Standard or Standard Plus U.S. Registration
Package but prior to any services being rendered you agree that we will refund you all but $75 of the monies
paid for the Standard or $95 of the monies paid for the Standard Plus U.S. Registration Package in
consideration of the Direct Hit Search and other services already performed.

In the unlikely event your Basic Federal Database Search Report in the Standard Plus U.S. Registration
Package does not include a potential blocking trademark or other grounds of refusal which, upon
examination of the search strategy and results you received, should have been identi ed in your report prior
to ling your trademark and, moreover, it is refused on that basis we will provide a complimentary self-
directed O ce Action response using our proprietary software to respond to the refusal at no additional cost
to you.  The customer agrees that this is the best and sole remedy should this unlikely event occur.

You hereby consent to TTC Business Solutions using a TTC Business Solutions’ maintained email address to
receive electronic correspondence from the U.S. Patent and Trademark O ce concerning the status of your
application.  Upon receipt thereof, TTC Business Solutions will provide you with notice of the same.  For any
registration which results from the submission of the application you acknowledge that the U.S. Patent and
Trademark O ce will mail the same directly to you or the o cial correspondence record for the application
you provide to TTC Business Solutions.

You may include up to ve (5) goods or services from the Acceptable Goods and Services Manual of the U.S.
Patent and Trademark O ce within this package.  If you would like to include more goods and services
additional fees may apply.

Purchase of our Standard or Standard Plus U.S. Registration Package does not guarantee that your
trademark will be registered with the U.S. Patent and Trademark O ce.  Our Standard or Standard Plus
Packages do not include responding to Procedural or Substantive Refusals.  Further, they make no warranties
that your use of the any trademark is authorized by law or cannot be challenged by potential third parties
known or unknown.

Additionally, you agree that additional charges in the nature of our Voluntary Amendment Package may
apply to any changes requested by you to forms by TTC Business Solutions based upon information you
supplied to the Company wherein you unilaterally decide to change or amend information so supplied prior
to the form(s) being transmitted to the U.S. Patent and Trademark O ce.

Platinum and Platinum Plus U.S. Registration Packages

Upon performing the included Comprehensive U.S. Trademark Search and providing general information
concerning other potential refusals which may be encountered when ling for a trademark if our customer
believes there is a potential basis for refusal prior to ling they have two options:

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First, they can choose not to proceed with the ling and receive a refund of all monies paid less the $299
search report fee.

Additionally, should they wish to try another trademark they will receive a $50 discount o another Platinum
Filing Package – from $449 to $399.  There is no limit to the number of trademarks to which this discount will
apply.

Second, and in the alternative, our customers can proceed with the ling and if the trademark is refused
registration on the grounds identi ed receive a 10% discount o of our Substantive o ce action response
services.

In the unlikely event your Comprehensive U.S. Trademark Search does not include a potential blocking
trademark or other grounds of refusal which, upon examination of the search strategy and results you
received, should have been identi ed in your report prior to ling your trademark and, moreover, it is
refused on that basis we will provide a complimentary self-directed O ce Action response using our
proprietary software to respond to the refusal at no additional cost to you.  The customer agrees that this is
the best and sole remedy should this unlikely event occur.

You hereby consent to TTC Business Solutions using a TTC Business Solutions’ maintained email address to
receive electronic correspondence from the U.S. Patent and Trademark O ce concerning the status of your
application.  Upon receipt thereof, TTC Business Solutions will provide you with notice of the same.  For any
registration which results from the submission of the application you acknowledge that the U.S. Patent and
Trademark O ce will mail the same directly to you or the o cial correspondence record for the application
you provide to TTC Business Solutions.

You may include up to ten (10) goods or services from the Acceptable Goods and Services Manual of the U.S.
Patent and Trademark O ce within this package.  If you would like to include more goods and services
additional fees may apply.

Purchase of our Platinum or Platinum Plus U.S. Registration Package does not guarantee that your trademark
will be registered with the U.S. Patent and Trademark O ce.  Our Platinum or Platinum Plus Packages do not
include responding to Procedural or Substantive Refusals.  Further, they make no warranties that your use of
the any trademark is authorized by law or cannot be challenged by potential third parties known or
unknown.

Additionally, you agree that additional charges in the nature of our Voluntary Amendment Package may
apply to any changes requested by you to forms by TTC Business Solutions based upon information you
supplied to the Company wherein you unilaterally decide to change or amend information so supplied prior
to the form(s) being transmitted to the U.S. Patent and Trademark O ce.

International Registration Package

Our International Registration Package does not include a search of the foreign trademark o ces before
which the trademark will be submitted.  As such, purchase of the International Registration Package does not
guarantee that your trademark will be registered in the applied-for territory.  Moreover, it does not include

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responding to refusals to register the trademark.  Further, it makes no warranties that your use of the any
trademark is authorized by law or cannot be challenged by potential third parties known or unknown.

O ce Action & Appeals

TTC Business Solutions provides two levels of O ce Action and Appellate responses for our customers.

First, through our Procedural O ce Action Package, Substantive O ce Action Package, and O ce Action
Appellate Package our customers are provided with access to our proprietary software to create self-directed
responses to refusals and appeals of refusals before the U.S. Patent and Trademark O ce. You agree and
understand that once you have been provided access to our proprietary software for the purpose of
responding to your o ce action we have provided you with the means through which to respond to the
same. Accordingly, once provided you will only be entitled to a $100 refund if you do not provide the answers
su cient to nalize your form response as generated by our proprietary software with reference to a
substantive or appellate package or a $50 refund with reference to a procedural response.

Second, through our network of independent attorneys (NIA) we provide access to independent attorneys
who prepare custom responses to our customers’ refusals and appeals.  The Customer acknowledges that
while communications between the independent attorney and the customer may be protected by privilege
communications between the customer and TTC Business Solutions are not. As such, both the TTC Business
Solutions and the customer acknowledge and agree that once engaged by the customer TTC Business
Solutions is not entitled to receive or review communications between the independent attorney and
the customer.  TTC Business Solutions will keep all communications between it and the customer private in
compliance with Company’s Privacy Policy unless compelled, by law, or by agreement of the parties, to reveal
the same.   Nothing herein shall be viewed to interfere with the independence of the independent attorney in the
course and scope of representation of or determination whether to represent the customer. 

For additional information regarding our NIA please see our NIA Terms of Service and our About the NIA.

Trademark Renewal Packages

By accepting these Terms of Service or otherwise using our trademark renewal services to renew your
federally registered trademark(s), you hereby certify the following renewal certi cations:

Unless the owner has speci cally claimed excusable nonuse, the mark is in use in commerce on or in
connection with the goods/services or to indicate membership in the collective membership organization
identi ed above, as evidenced by the attached specimen(s);
Unless the owner has speci cally claimed excusable nonuse, the specimen(s) shows the mark as currently
used in commerce on or in connection with the goods/services/collective membership organization;
The mark has been in continuous use in commerce for ve consecutive years after the date of
registration, or the date of publication under 15 U.S.C. § 1062(c), and is still in use in commerce on or in
connection with all goods/services, or to indicate membership in the collective membership organization,
listed in the existing registration;
There has been no nal decision adverse to the owner’s claim of ownership of such mark for such
goods/services, or to indicate membership in the collective membership organization, or to the owner’s

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right to register the same or to keep the same on the register;
There is no proceeding involving said rights pending and not nally disposed of either in the United States
Patent and Trademark O ce or in a court;
To the best of the signatory’s knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances, the allegations and other factual contentions made above have evidentiary
support; and
The signatory being warned that willful false statements and the like are punishable by ne or
imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may
jeopardize the validity of this submission and the registration, declares that all statements made of
his/her own knowledge are true and all statements made on information and belief are believed to be
true.

Copyright Services

Gold and Gold Expedited Registration Packages

Our Gold and Gold Expedited Registration Packages do not include a search for copyrights that are similar to
the work you are seeking to register. Moreover, purchase of our Gold and Gold Expedited Registrations
Package does not guarantee that your copyright will be registered with the U.S. Copyright O ce.

Our Gold and Gold Expedited Registration Packages also do not include responding to substantive refusals
such as lack of su cient artistry or otherwise which may block the registration of your copyright.  Further,
the Company makes no warranties that your use of the any copyright is authorized by law or cannot be
challenged by potential third parties known or unknown.

Platinum and Platinum Expedited Registration Packages

Our Platinum and Platinum Expedited Registration Packages do not include a search for copyrights that are
similar to the work you are seeking to register.  Moreover, purchase of our Platinum and Platinum Expedited
Registration Packages does not guarantee that your copyright will be registered with the U.S. Copyright
O ce.

Upon the purchase of our Platinum and Platinum Expedited Registration Packages we will provide our
Copyright Information Letter prior to ling to register your work with the U.S. Copyright O ce.  The letter will
be provided to you within one business day.

If, in your opinion, after receiving our Copyright Information Letter your work lacks su cient artistic nature or
otherwise is unlikely to receive a copyright registration you have the option of receiving a full refund of all
fees paid less $75, the cost of the Copyright Information Letter.  Should you proceed forward with ling for
your copyright following receipt of the same, and should your application be rejected, you will receive a 10%
discount o of a Request to Reconsider the subject refusal.  Note, this does not include o cial government
fees that cannot be discounted.

Enforcement & Defense Solutions

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TTC Business Solutions’ self-help enforcement services are designed to provide self-help solutions allowing
its customers to enforce and defend their intellectual property.  The Company can never guarantee the
results of any enforcement or defense e orts nor does it warrant that enforcement or defense e orts, self-
directed or otherwise, will not lead to third-party counter-enforcement, claims, or defenses or the manner of
said enforcement or defense e orts.

Our enforcement and defenses services are available to all of our customers.  However, they are not a part of
our other services unless expressly provided and must be arranged for separately and apart of any business,
copyright, or trademark services purchased.

Standard Enforcement & Defense Packages

The Standard Enforcement and Standard Defense Packages are non-litigation packages designed to enforce
or defend your rights in a cost-e ective manner.  No representation in a court or other tribunal will occur in
the course and provision of these packages.

The initial step of both packages is the Research Letter wherein TTC Business Solutions conducts factual
research concerning the rights of the respective parties involved in a speci c matter and provides the results
of that research to the customer and an NIA attorney in a Research Letter.  Once the Research Letter is
complete, the matter is forwarded to the NIA attorney.

Through our NIA we provide access to independent attorneys who prepare cease and desist letters and the
corresponding services as more fully set forth in the package details as well as responding to the same.  The
Customer acknowledges that while communications between the independent attorney and the customer may be
protected by privilege communications between the customer and TTC Business Solutions are not. As such, both
the TTC Business Solutions and the customer acknowledge and agree that once engaged by the customer
TTC Business Solutions is not entitled to receive or review communications between the independent
attorney and the customer.  TTC Business Solutions will keep all communications between it and the
customer private in compliance with Company’s Privacy Policy unless compelled, by law, or by agreement of
the parties, to reveal the same.   Nothing herein shall be viewed to interfere with the independence of the
independent attorney in the course and scope of representation of or determination whether to represent the
customer. 

For additional information regarding our NIA please see our NIA Terms of Service and our About the NIA.

The Standard Defense Package and Standard Enforcement Packages are also limited to one party, as
applicable, and may only be used to enforce against that one particular party and will not be expanded to
enforce or defend through tangential means.

Speci cally, our Standard Enforcement Package Includes:

Conducting Factual Research Concerning Your Rights in Your Trademark vis-a-vis the Rights Allegedly
Retained by the Purported Infringer;
Providing a Statement of Facts as to the Respective Rights Involved;
Submitting an Initial Cease and Desist Letter to the Other Party, if warranted;*

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Submitting a Follow-Up Cease and Desist Letter to the Other Party, if warranted;*
Up to 2 Conference Calls with the Opposing Party or Counsel to Negotiate Ceasing Use of the Infringing
Trademark;*
Up to 2 Emails to the Opposing Party or Counsel to Negotiate Ceasing Use of the Infringing Trademark;*
Up to 1 Conference Call with Your Attorney to Discuss the Matter;* and
Up to 3 Written Status Reports Reporting on Responses to Our Claims.*

*Provided through TTC’s NIA. 

Speci cally, our Standard Defense Package Includes:

Conducting Factual Research Concerning Your Rights in Your Trademark vis-a-vis the Rights Allegedly
Retained by the Party Alleging Infringement;
Providing a Statement of Facts as to the Respective Rights Involved;
Submitting an Response to the Other Party, if warranted;*
Submitting a Follow-Up Response to the Other Party, if warranted;*
Up to 2 Conference Calls with the Opposing Party or Counsel to Negotiate a Resolution of the Claims;*
Up to 2 Emails to the Opposing Party or Counsel to Negotiate a Resolution of the Claims;*
Up to 1 Conference Call with Your Attorney to Discuss the Matter;* and
Up to 3 Written Status Reports.*

*Provided through TTC’s NIA. 

TTAB Enforcement and Defense Packages

Our TTAB Enforcement and Defense Packages are litigation packages which provide access to litigation
services through our NIA for matters before the Trademark Trial and Appeal Board for the United States
Patent and Trademark O ce.

Through our NIA we provide access to independent attorneys who litigate the case as more fully set forth in
the package details as well as any subsequent agreement entered into between you and the NIA
attorney.  The Customer acknowledges that while communications between the independent attorney and the
customer may be protected by privilege communications between the customer and TTC Business Solutions are
not. As such, both the TTC Business Solutions and the customer acknowledge and agree that once engaged
by the customer TTC Business Solutions is not entitled to receive or review communications between
the independent attorney and the customer.  TTC Business Solutions will keep all communications between it
and the customer private in compliance with Company’s Privacy Policy unless compelled, by law, or by
agreement of the parties, to reveal the same.

Of note, for this initial payment the customer receives the services set forth in the package details.  TTAB
litigation can be complex and neither the TTAB Enforcement Package or the TTAB Defense Package
constitutes the full amount that would be required to litigate a matter from its start to its completion. In that
regard, once the services are performed under our TTAB Packages by the NIA attorney the customer and the
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NIA attorney may then enter into a separate contract for the completion of the case, if required. Nothing
herein shall be viewed to interfere with the independence of the independent attorney in the course and scope of
representation of or determination whether to represent the customer.

For additional information regarding our NIA please see our NIA Terms of Service and our About the NIA.

Domain Name Dispute Packages

Through our NIA Program we provide access to independent attorneys who prepare custom domain name
disputes and responses to the same.  The Customer acknowledges that while communications between the
independent attorney and the customer may be protected by privilege communications between the customer and
TTC Business Solutions are not. As such, both the TTC Business Solutions and the customer acknowledge and
agree that once engaged by the customer TTC Business Solutions is not entitled to receive or review
communications between the independent attorney and the customer.  TTC Business Solutions will keep all
communications between it and the customer private in compliance with Company’s Privacy Policy unless
compelled, by law, or by agreement of the parties, to reveal the same.   Nothing herein shall be viewed to
interfere with the independence of the independent attorney in the course and scope of representation of or
determination whether to represent the customer. 

For additional information regarding our NIA please see our NIA Terms of Service and our About the NIA.

Sample Documents / Templates

To view representative samples or templates of the legal documents available through TTC Business
Solutions Click Here.  If you do not see a copy of the document you are looking for or if you have troubles
viewing uploaded document please send an email to info@ttcbusinesssolutions.com referencing the sample
document or template you would like to see and a copy of the same will be forwarded to you.

Acknowledgement

BY USING TTC BUSINESS SOLUTIONS’ SERVICES OR ACCESSING THE TTC BUSINESS SOLUTIONS SITE YOU
ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM. TTC
Business Solutions, LLC is located at 2703 Jones Franklin Road, Suite 205, Cary, North Carolina 27518.

Last Updated February 10, 2016

Site Links

Business Services
Trademark Services
Copyright Services
Enforcement Services

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Defense Services
Learning Center
Terms of Service

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From the Learning Center

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Disclaimer: Communications between you and TTC Business Solutions are protected by our Privacy Policy but not by the attorney-client privilege or as
work product. TTC Business Solutions provides access to independent attorneys and self-help services at your speci c direction. We are not a law rm or
a substitute for an attorney or law rm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights,
remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Service.

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EXHIBIT​ ​W
12/12/2017 Case 5:17-cv-07318 Trademark/Service
Document 1-1 Mark Filed
Application, Principal Register
12/27/17 Page 221 of 227
United States Patent and Trademark Office
Trademark Electronic Application System - TEAS Application

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
PTO Form 1478 (Rev 09/2006)
OMB No. 0651-0009 (Exp. 02/28/2018)

Trademark/Service Mark Application, Principal Register


Version 5.10 - Validation Page

On Tue Dec 12 15:31:07 EST 2017 You completed all mandatory fields and successfully validated the form. It has NOT been filed to the USPTO at this
point. Please complete all steps below to submit the application.

NOTE:For an instructional video on the Validation Page, click here.


STEP 1: Review the application data in various formats, by clicking on the phrases under Application Data. Use the print function within your browser to print
these pages for your own records. If the Mark and Specimens appear huge, click here.

Note: It is important that you review this information for accuracy and completeness now. Corrections after submission may not be permissible, thereby possibly
affecting your legal rights.
Note: If you are using the e-signature approach or the handwritten pen-and-ink signature approach, you must click on the final link to access the specific "text form"
for that purpose.

Application Data

Input Mark XML File Text Form for E-Signature

STEP 2: If there are no errors and you are ready to file this application electronically, confirm the e-mail address for acknowledgment. Once you submit the form
electronically, we will send an electronic acknowledgment of receipt to the e-mail address entered below. If no e-mail address appears, you must enter one. If we
should send the acknowledgment to a different e-mail address, or to an additional address(es), please enter the proper address or additional address(es). For multiple
addresses/receipts, please separate e-mail addresses by either a semicolon or a comma.
NOTE: This e-mail address is only for the purpose of receiving the acknowledgment that the transmission reached the USPTO, and is not related to the e-mail that will be used for correspondence purposes
(although it could be the same address. The official e-mail address that the USPTO will use for any future communication is whatever appears in the specific correspondence section of the form.)

* E-mail for acknowledgment


To ensure we can deliver your e-mail confirmation successfully, please re-enter your e-mail address(es) here:
* E-mail for acknowledgment

STEP 3: Read and check the following:

Important Notice:

(1) Once you submit this application, we will not cancel the filing or refund your fee. The fee is a processing fee, which we do not refund even if we cannot
issue a registration after our substantive review. This is true regardless of how soon after submission you might attempt to request cancellation of the filing.
Therefore, please review ALL information carefully prior to transmission.

(2) All information you submit to the USPTO at any point in the application and/or registration process will become public record, including your name, phone
number, e-mail address, and street address. By filing this application, you acknowledge that YOU HAVE NO RIGHT TO CONFIDENTIALITY in the
information disclosed. The public will be able to view this information in the USPTO's on-line databases and through internet search engines and other on-line
databases. This information will remain public even if the application is later abandoned or any resulting registration is surrendered, cancelled, or expired. To
maintain confidentiality of banking or credit card information, only enter payment information in the secure portion of the site after validating your form. For any
information that may be subject to copyright protection, by submitting it to the USPTO, the filer is representing that he or she has the authority to grant, and is
granting, the USPTO permission to make the information available in its on-line database and in copies of the application or registration record.

(3) Be aware that private companies not associated with the USPTO often use trademark application and registration information from the USPTO's
databases to mail or e-mail trademark-related solicitations (samples of non-USPTO solicitations included).

If you have read and understand the above notice, please check the box before you click on the Pay/Submit button.

STEP 4: If you are ready to file electronically:


Click on the Pay/Submit button below, to access the site where you will select one of three possible payment methods. After successful entry of payment
information, you can complete the submission to the USPTO. A valid transaction will result in a screen that says SUCCESS! Also, we will send an e-mail
acknowledgment within 24 hours.
WARNING: Click on the Pay/Submit button ONLY if you are now entirely prepared to complete the Pay/Submit process. After clicking the button, you can NOT
return to the form, since you will have left the TEAS site entirely. Once in the separate payment site, you must complete the Pay/Submit process within 30 minutes.
WARNING: Fee payments by credit card may not be made from 2 a.m. to 6 a.m. Sunday, Eastern Standard Time. If you are attempting to file during that specific
period, you must use either the deposit account or electronic funds transfer payment method.

Pay/Submit

Burden/Privacy Statement | TEAS Form Burden Statement

Help Desk | Bug Report | Feedback | TEAS Home | Trademark Home | USPTO

https://teas.uspto.gov/forms/teas.service?form.action=SIGNRES&formId=bas&id=USPTO/BAS-24.5.91.150-20171209150659049380-New/Application-… 1/2
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Applicants and registrants represented by excluded


parties
If the USPTO suspects that a party, whether an individual or a firm, is engaging in unauthorized practice of trademark law or otherwise improper activities
before the USPTO, the Commissioner for Trademarks may issue a show-cause order. A show-cause order requires the party to establish the legitimacy of
their activities and to explain why they should not be excluded from acting on behalf of others before the USPTO. Depending on the party’s response, a
show-cause order may be followed by an exclusion order, which formally excludes the party from serving as an attorney, correspondent, domestic
representative, and/or signatory in trademark matters before the USPTO.

Review copies of show-cause orders and exclusion orders issued by the Commissioner for Trademarks

Get information on unauthorized practice of trademark law and who may practice before the USPTO in trademark matters

Once a party has been excluded, the USPTO will change the correspondence address for each affected application or registration file record to that of the
applicant, registrant, or domestic representative, as appropriate, and will notify the affected applicant or registrant that:

The excluded party is not entitled to practice before the USPTO in trademark matters and, therefore, may not represent the applicant or
registrant.
 
Any power of attorney granted to the excluded party is void ab initio, meaning it was invalid from the start of any action taken by the excluded
party.
 
The excluded party may not sign responses to Office actions, authorize examiner’s amendments or priority actions, conduct interviews with
USPTO employees, or otherwise represent an applicant, registrant, or party to a proceeding before the Office.

All correspondence concerning the application or registration will be sent to the domestic representative if one has been appointed, or,
alternatively, and in most circumstances, to the applicant or registrant at its address of record. 

What to do if the USPTO excluded the party representing you


 
(1)  Review your application/registration record

Go to the Trademark Status & Document Retrieval (TSDR) system and enter your serial number or registration number to retrieve the record for
your application or registration.

(2)  Review your contact information 

Once you have retrieved your application/registration record in TSDR, select the “Status” tab and review the Attorney/Correspondence Information
to confirm that the correspondence information is correct.

If the correspondence information is incorrect, correct it by filing a Change of Correspondence Address form. If necessary, you may also change the
owner’s address information, using the Change of Owner’s Address form. Both forms are available at Correspondence and Attorney/Domestic
Representative Forms. 

(3)  Determine if you are required to file anything 

Select the “Documents” tab in TSDR and view the outgoing correspondence from the USPTO in the record to determine if you are required to file
anything in connection with your application or registration, such as a response to an Office action, a statement of use, or a registration maintenance
document. 

If your application is still pending and you fail to file a required document before the deadline, your application will be abandoned. If your mark is
already registered, and you fail to submit the required registration maintenance documents on time, your registration will expire or be cancelled.  All
required documents may be filed electronically by using the appropriate electronic form in the Trademark Electronic Application System (TEAS).

After your initial review of your application or registration record, continue to monitor the status of your application or registration, using the
“Status” tab in TSDR.

For applications, you should check the status every six months between the filing date of the application and issuance of a registration. 
 
If your mark is already registered and you have filed an affidavit of use or excusable nonuse under §8 or §71 of the Trademark Act, or a
renewal application under §9 of the Act, you should check the status of the registration every six months until you receive notice that the
affidavit or renewal application has been accepted. 

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Questions? 

For pending applications, contact the assigned examining attorney, whose contact information is provided in Office actions sent in
connection with your application. In TSDR, Office actions are identified as “Offc Action Outgoing” in the “Documents” tab. For registrations,
contact the assigned Post Registration specialist, whose contact information will be provided in any Office action sent in connection with
registration maintenance filings, or the Office of Petitions at 571-272-8950.

For general questions about the trademark process, guidance on the type of information required in a particular electronic form, or
information about which USPTO offices or employees to contact for particular issues, contact the Trademark Assistance Center at            
571-272-9250, or toll-free at 1-800-786-9199. You can also email TrademarkAssistanceCenter@uspto.gov.

(4)  Review all documents previously submitted on your behalf

If your application is still pending, and a registration has not yet issued, you should review any documents submitted on your behalf to confirm that
it was signed by the appropriate party and that all the information in the document is correct. If you believe that any submitted document was
improperly signed or contains incorrect information, you should contact the assigned examining attorney, who can answer questions about the
process for resubmitting documents. 

If your mark is already registered and registration maintenance documents have been submitted on your behalf, you should review the documents to
confirm that they contain accurate information and are properly signed.  If you have any questions about a registration maintenance document
submitted on your behalf, you may contact the assigned Post Registration specialist whose contact information will be provided in any Office action
sent in connection with registration maintenance filings, or the Office of Petitions at 571-272-8950.

For additional information on who may sign documents submitted to the USPTO in connection with trademark applications and registrations, see
Proper Representation in Trademark Matters and TMEP §§611.03–611.04.

(5)  Consider hiring a qualified attorney to represent you

Consider hiring a qualified attorney with expertise in trademark matters to represent you in the application process. While a USPTO trademark
examining attorney will try to help you through the examination process even if you do not hire an attorney, USPTO attorneys are not permitted to
give you legal advice.

A private trademark attorney who is licensed in the United States and is authorized to practice before the USPTO may:

Help you avoid future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and
"common law" unregistered trademarks before you file your application. Comprehensive searches are important because other trademark
owners may have protected legal rights in trademarks similar to yours that are not federally registered. Therefore, those trademarks will not
appear in our Trademark Electronic Search System database, but they could still ultimately prevent your use of your mark.
 
Help you during the application process with several things that could seriously impact your trademark rights, such as determining the best
way to describe your goods and services and preparing responses to refusals to register your mark that we may issue.
 
Assist you after your mark is registered by filing registration maintenance documents and by taking actions to help you police and enforce
your trademark rights. While the USPTO registers trademarks, you, as the trademark owner, are fully responsible for any enforcement of
your private trademark rights.

If you decide to hire an attorney, you should be aware that, under U.S. federal regulations, the only individuals who may represent an applicant or
registrant in trademark matters before the USPTO, other than certain previously authorized trademark agents, are (1) attorneys who are licensed to
practice in the United States and (2) Canadian agents or attorneys who are authorized by the USPTO to represent applicants located in Canada. 
Employing a foreign attorney or other individual who is not authorized to practice before the USPTO to represent you in connection with your
trademark application may delay and prolong the trademark application examination process and could jeopardize the validity of any resulting
registration.

The USPTO has established a Law School Clinic program in which participating law schools provide free legal services to trademark applicants in
connection with trademark applications before the USPTO.  Each school in the program has its own criteria for accepting clients. If you are interested,
you should contact a participating school to inquire about becoming a client.  For a list of schools participating in this program and additional
information about the program, visit Law School Clinic Certification Program.

For more information on finding a qualified private attorney to assist you, visit Using Private Legal Services.

For more information on the unauthorized practice of trademark law and who may practice before the USPTO in trademark matters, visit Proper
Representation in Trademark Matters.

 
What to do when your application is abandoned
 

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When an application is abandoned, it means that the application is no longer pending and, thus, a registration will not be issued. The USPTO may deem
your application abandoned if you fail to submit a response to an Office action or fail to respond completely to an Office action; if you fail to respond to a
suspension inquiry; or if you fail to file a statement of use.  In addition, an application may be “expressly abandoned,” meaning that the applicant has
requested that application be abandoned and that no further prosecution of the application will occur.

In some cases, you may file a petition to revive an abandoned application or request that an abandoned application be reinstated. More information about
abandonment and the process of reviving or reinstating an abandoned application may be found at Abandoned Applications.
 

What to do if your registration expires or is cancelled


 
Once your mark is registered, you, as the registration owner, must file specific documents and pay the required fees at regular intervals to keep the
registration "alive" or valid. Failure to file these documents or pay the required fees will result in the cancellation or expiration of your registration.

If you failed to timely respond to an Office action refusing to accept a §8 affidavit, §71 affidavit, or §9 renewal application due to an extraordinary
situation, you may file a formal petition under 37 C.F.R. §§2.146(a)(5) and 2.148 to accept a late response.  You may file the petition electronically using the
Petition to the Director under Trademark Rule 2.146 form, available at Petition Forms. You must file the petition within two months of the issue date of the
cancellation notice.  If you did not receive the cancellation notice, or no cancellation notice was issued, you must file the petition must within two months
of the date the Trademark database was updated to indicate that the registration expired or was cancelled.  

If your registration expires or is cancelled, but you have proof that a USPTO error led to the cancellation or expiration, you may file a request to
reinstate a cancelled or expired registration.  You may file the request electronically using the Petition to the Director under Trademark Rule 2.146 form,
available at Petition Forms. Although a petition fee is required in order to file the form, it will be refunded if USPTO error is found.  For a list of examples of
situations where the USPTO may reinstate a cancelled or expired registration, please see TMEP §1712.02(a).

For additional information about maintaining your trademark registration, visit Keeping Your Registration Alive.

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