Petition for Writ of Certiorari — Meads v. Flying Tiger Line, Inc.

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g6°1729 Y |

Supreme Court, U.S.

ak & D

No.

——— a

IN THE

DEC 11 1984 |

SUPREME COURT OF THE UNITED: TATES

FOR THE TERM ENDING OCTOBER, i984

THE FLYING TIGERS INTERNATIONAL: MORTON F. MEADS

AS INTERNATIONAL COMMANDER OF THE FLYING TIGERS

INTERNATIONAL; ROBERT ZLOMKE AS SECRETARY FOR

THE AMERICAN PACIFIC OF THE FLYING TIGERS INTER-

NATIONAL AND SMALL STOCKHOLDER AND SECRETARY

OF THE FLYING TIGERS OJL CO. INC.; AND ALL THE MEM-

BERS OF THE 20TH BOMBER COMMAND, 14TH AJR FORCE,

i8TH AIR FORCE AND 5TH AIR FORCE WHO ARE MEM.-

BERS OF THE FLYING TIGERS INTERNATIONAL; AND

CLASS ACTION FOR ALL MEMBERS OF THOSE ARMED

FORCES’ ORGANIZATIONS WHO ARE OF LIKE MIND; AND

THE FLYING TIGERS OIL COMPANY, INC.,

Petitioners,

. A

UNITED STATES COURT OF APPEALS FOR THE FEDERAL

CIRCUIT, THE HON. JUDGES KASHIWA, SKELTON, NIES,

AND MARION BENNETT; THE TRADEMARK TRIAL AND

APPEALS BOARD, THE COMMISSIONER OF THE UNITED

STATES PATENT AND TRADEMARK OFFICE; THE FLYING

TIGER LINE INC., BLAKELY, SOKOLOFF, TAYLOR, ZAFMAN

AND ERIC HYMAN,

Respondents.

On Writs of Certiorari, Mandamus, and Prohibition with

Declaratory Relief to the United States Court of

Appeals for the Federal Circuit

PETITION FOR WRITS OF CERTIORARI, MANDAMUS,

PROHIBITION AND FOR DECLARATORY RELIEF ws

(For addresses of counsels, see inside cover)

MORTON F. MEADS

(For and In His Own Behalf, PRO SE)

International Commander

FLYING TIGERS INTERNATIONAL

P. O. Box 1094, Manila, Philippines

ROBERT ZLOMKE, PRO SE

SMALL STOCKHOLDER AND SECRETARY

OF THE FLYING TIGERS OIL CO. INC.

P. O. Box 1094, Manila, Philippines

FLYING TIGERS INTERNATIONAL FRO SE

602 Roman R. Santos Bldg.,

Plaza Goiti, Manila, Philippines

A. C. SORIANO

1050 Concepcion St., Ermita

Manila, Philippines

Attorney for the Flying Tigers Oil Company, Inc.

VICENTE L. SANTIAGO

602 Roman R. Santos Bldg., Plaza Goiti

Santa Cruz, Manila, Philippines

Attorney for the Flying Tigers Oil Co., Inc.

and The Flying Tigers International

—_ a —_—

QUESTIONS PRESENTED

1. Did the CAFC do the legal, moral and

right thing when it denied the Motion to Intervene

of the Flying Tigers International and its Inter-

national Commander Morton F. Meads, and its

Secretary for the American Pacific, Robert Zlomke,

solely because they had not yet intervened in the

PTO,’ TTAB?

2. Did the CAFC do the legal, moral and

right thing when it refused to consider and rule on

any single one of the violations of Constitutional

Rights, Statute Law, Federal Rules of Civil Pro-

cedure by and charges of corruption in the Patents

and Trademark Office and Trademark Trial and

Appeals Board in Appeal No. 84-602 and Petition

for Certiorari/Mandamus, etc.?

3. Did the CAFC fulfill its legal, moral and

judicial responsibilities when it failed to do what

is cited in question 2 above?

4. Is it correct that the CAFC has no ju-

risdiction over Appeal No. 84-602 and/or Unnum-

bered Petition for Certiorari’ Mandamus’ Prohibi-

tion Declaratory Relief consolidated with said Ap-

peal and all the questions and issues raised there-

in?

5. Is it legally and morally correct for the

CAFC to excuse itself from considering and re-

solving the Appeal 84-602 and the Petition for

Certiorari/ Mandamus Prohibition Declaratory Re-

lief filed by the Flying Tigers International, et al.

on the claim that it has no supervisory powers

ae ee

over the Patents and Trademark Office when in

fact it is the successor of the congressionally creat-

ed Court of Customs and Patent Appeals specifi-

cally charged with absolute judicial control and

corrective authority over each and everything that

the PTO’/Commissioner. TTAB does and fails to

co?

6. Is it correct legally and morally for the

CAFC to excuse itself from ordering by Mandamus

the Commissioner/PTO/TTAB to comply with

Statute Law and issue the Certificate of Regis-

tration to Flying Tigers Oil (authorized by Flying

Tigers International), that is entirely completed

including publication, on the grounds that such

Mandamus would circumvent a trial, when in fact

it is precisely that Statute Law that bars a trial?

7. Is it legal, moral and right for the CAFC

to ignore the obvious false designation and false

use, after 1977, for the purpose of gaining unde-

served credit, honor and attention, of the name

and mark ‘Flying Tigers’ by the Flying Tiger Line

Inc. — which is actionable by the CAFC on its

fact because it deceives the public and therefore

can be enjoined immediately?

8. Is it legal and moral for the CAFC to fail

to consider and rule on all the questions and issues

in Appeal 84-602 and/or the Petition for Certiorari/

Mandamus/Prohibition|/Declaratory Relief consoli-

dated therewith despite the fact that the Appellee

FTiger Line did not deny any of the material

facts upon which the questions and issues are

based?

— Cc —

9. Is it legal, moral and right for the CAFC

to guide Filipino In-House counsel, pro hac vice,

of the Flying Tigers Oil and finally declare that

he does not reach the standards of the CAFC while

the subject of the complaint or appeal or Petition

is the Untruthfulness and Unethical acts of Ameri-

can counsel, and the illegal, Unconstitutional Acts

of omission and commission of the PTO’ TTAB in

so great quantity and degree that it constitutes

corruption and necessarily carries with it an air or

order of emotion in the least, which such condi-

tions should normally invoke in the human being;

and necessarily requires many pages to report, and

including actual pinpointing of untruthfulness by

Tiger Line’s counsels and Flying Tiger Line with

documents to show this — while American Coun-

sel only casts innuendos without Specifics and no

documentation — and vet the latter is never rep-

rimanded by the CAFC?

10. Is it legal, moial and right for the CAFC

to push off on to the Supreme Court of the United

States ali the issues and questions and violation of

the U. S. Constitution and Federal Statute Law

existing in appeal 84-602 on the Petition for Certio-

rari Mandamus’ Prohibition’ Declaratory Relief and

the questions presented in detail cited in the Ap-

pendix of this Petition and also applicable to this

petition, as essential consequences and part of these

Ten Basic Issues or questions?

11. Is the PTO TTAB bound to honor and

respect the issuance of prior registrations to the

l'lying Tigers International and Flying Tigers Oil

company by a foreign country, the Republic of

Morac-Songhrati-Meads?

once

12. Can a commercial entity take over the

name and mark of a Veterans Organization with-

out its consent, legally and morally?

13. Some of the violations of the Constitu-

tional Rights to Due Process and equal protection

and Violations Of The Trademark Law and the

Trademark Rules of Practice and the Federal

Rules of Civil Procedure are enumerated herein;

can they be committed by the PTTO-TTAB

and the Flying Tiger Line with impunity and

without review and correction by either the CAFC

or The Supreme Court?

14. The Flving Tigers International is holder

of Philippines Trademark Registration No. 32095

for the Mark ‘Flying Tigers International’ and Tiger

Head logo design, in use over 20 years before the

Flying Tiger Line started to imitate; and the Fly-

ing Tiger Line started to imitate; and the Fly-

ing Tigers Oil Company, Inc. is holder of Philip-

pines Registration No. 33911 for the Mark ‘Fly-

ing Tigers with tiger head logo design’ having

used this Mark for more than 20 years before Fly-

ing Tiger Line began to try to usurp and imitate;

are Flvine Tiger Line’s registrations superior to

those of Flying Tigers International and Flying Ti-

gers Oil Company, or does first use by Flying Tigers

Oil and Flying Tigers International and false de-

signation by Flying Tiger Line dictate that Flying

Tiger Line’s registrations be cancelled?

TABLE OF CONTENTS °

Page

QUESTIONS PRESENTED ................ a tod

TABLE OF AUTHORITIES ................. j tov

SOR WO oot seis pues akhunie ce eakicn

IT ns hc hl a a 40k waeees 1

a a woe oka E 1

Pa oe ns oe oe oe eens 2

STATUTES INVOLVED ,,................ 4

PE a cee ns cn acG ea wenueinces 5

REASONS FOR GRANTING THE WRITS . 23

ARGUMENT .......... elxxiii-clxxiv, 26, cxxili-cxlvii

MANDATORY STATEMENTS .............. 26

CERTIFICATE OF MAILING AND

AFFIDAVIT OF SERVICE ............ elxxvii, 26

FILING OF PRINTED PETITION WITHOUT

PREJUDICE TO ROBERT ZLOMKE PETI-

TION IN FORMA PAUPERIS AND PRO SE 27

ee Ay cel ict tee 27

MMEOTR TAP ian cwasacstaweeentaeewan 3

ENTRY OF APPEARANCES . elxvii-c!xx and clxxv-clxxvi

APPENDIX i-clxxvili

Peer Orr rT ere i-xxlil, ¢, 25, 29

Appendice B (Questions Presented in the

ees Ps ae elxv, 25, 29, xxx

Appendice C (Final Decision of CAFC) , .xxiv-xxvili,

1, 3, 21, 22, exxiv. exxxiii, civi.i, elxi

Appendice C-1 (Order of CAFC dated

Mareh 30, 1984)... ccc a, 2, 21. xxvii

Appendice C-2 (Order of CAFC dated

March 30, 1984) _............ a. 2, 21, xxviii

Appendice D (Notice of PTO/TTAB Dated

Tek 2 ee i eee 1, 3. 6. xxix

Appendice E (Notice of PTO/TTAB Dated

March 6, 1981) 3. 6, xxix

S846 8 86 8648S) 64 4.4% 6.4.4

TABLE OF CONTENTS

Page

Appendice F (Order of TTAB Dated Sept.

a | Ae eee a 1, 3, 6, 29, xxxi-xxxili

Appendice G (Order of TTAB Dated July

= ear 1, 3, 8, 15, 29, xxxiv-xxxviii

Appendice H (Order of TTAB Dated De-

cember 22, 1982) ........ 1, 3, 12, 13, 17, xxix

Appendice I (Order of TTAB Dated June

Bis BOP gn cen cd 1, 3, 8, 13, 15, 29, xxxix-xliv

Appendice J (Trademark Law of 1946 as

Amended) ........ d, 4. 5, 6, 9, 10, 12, 14, 20,

23, xiv-l, exxv, cxxvi, ‘¢xXxx, exxxvili, exliv, exlvi,

elv, elvi, clxvi

Appendice K (Trademark Rules of Prac-

tice) c. 4, 5, 6, 12, 14, 19, 20, li-lxvi,

exliv, exlv, exlviii, elv

ee 4 4.4 @&.4

Appendice L (Quotations from the Law and

the Constitution) ....., 3. 5, 22, 25, Ixvii-xcii

(Quotations from the US.

Constitution) ... ww. ccc ccee Ixvil-Ilxxiii

Coe ee ee a oe 4, Ixxiv

(18 U.S. Code 1001) .............. Ixxiv

Re nc I ed 4, xxv

(28 U.S. Code 1253)

(38 U3. Come 1256) ........

+ ik Se Snr on, 4, Ixxv

+ ge SE) | eee eee 3, 4, Ixxvi

(28 U.S. Code 1292) ..........

(28 U.S. Code 1338) .. 2. 4. Ixxvii. exlii, exliii

(2B US. Come TGG8) . 2. ccc cic vk ncne 4, lxxvii

(28 U.S. Code 1542) 3, 4, Ixxvili

(28 U.S. Code 1651) .... 3, 4, Ixxviili, exxxviii,

exhiil

(28 U.S. Code 2072) .... 4, 26. Ixxix.elvi, elviii

(28 U.S. Code 2101)

(28 U.S. Code 2108)

(28 U.S. Code 2106)

4, Ixxix, cxxxvi

IXxx

es «6 e-6 2s

.-6.8 8.0.22 @ 8 6.8 484.84 6 3

UD FAS inte

TABLE OF CONTENTS g

Page

(28 U.S. Code 2201) , . 3, 4, Ixxxi, cxxx, cxxxix

ee Oe A i tee ead oe 2, 4, Ixxxi

ce ie be cathe: PERE ER Se ner Ixxxil

"ainsi sae Mie oereer Bic, ERE ORO CR eT IXxxli

(3B U.S. Code 168)... . cn ciccccacnn 3, Ixxxil

(42 U.S. Code 1981) ........ nen. 3, 4, Ixxxili

(42 U.S. Code 1983) .......... 3, 4, Ixxxiii

(Rules of Civil Procedure for the .

United States District Courts) .... 1xxxiv-

_ Ixxxvil, a. c, 3, 5, 6, 7. 9, 14, 23, 27,

CXXV, CXXVii, CXxxviii, exli, cliv, elvi, elxvi

. {Federal Rules of Appellate Procedure) .,...,

5, Ixxxviii-xcii

Appendice M (Certified List from PTO/

TTAB) .. 3.5, 8 11, 12, 17, 19, xciii, exlv, exliv

Appendice N (Pertinent Citations) |. xciii-cx, clv,

elvi, elxvi

Ss 6 4:4 6:0 6 O :O'O.6 8 AS 6 8: 8818 CS AR Ses 2 eS

Appendice O (Letter frem U.S. Govt. Print-

ing Office Dated December 14, 1982),, 12, exi

Appendice P (Letter of U.S. Govt. Print-

ing Office Dated December 14, 1982)... 12, exii

Appendice Q (Letter from U.S. Govt. Printing

Office Dated February 8, 1983) 12, . | exiii-exiv

Appendice R (Letter Dated October 4, 1961

from Trans World Airlines to Morton F.

Meads, International Commander, Fly-

ing Tigers International) .......... Cxiv

Appendice S (News Item from Philippine

Evening News Dated June 3, 1972 about

Pepe Teen GU wiv cc ccwnse cance CXV

Appendice T (News Item from Philippines

Bulletin Dated January 11, 1984 about

Rep. of Morac-Songhrati-Meads) .... exv-exvi

Appendice U (News Item from Philippine

Times Journal Dated October 11, 1981

TABLE OF CONTENTS

Page

about Flying Tigers Oil and the Rep.

of Morac-Songhrati-Meads) .,..... cxvil-exviii

Appendice V (Letter Dated Nov. 2 1984

from CAFC to Flying Tigers Oil Com-

“ates LET ee ne ae CXiX-CXX, CXXXV

Appendice W (Notice of Appeal Dated Oc-

tober 20, 1984) ............ CXXXV, CXX-CXxXil

Appendice X (Memorandum of Argu-

SPS ie barat ee eee kes 26. cxxiii-celxvi

se ibevzsnsreraaing ht COE De ee EE Ore exxiil

Violation of Trademark Law .......... exlvi

Failure to Answer Affirmative De-

oS Se elii

Registration in Foreign Countries ...... clv

Violation of Substantive Right of Fly-

ing Tigers Oil by Rule of CAFC ,... elvi

Claim of CAFC Thai It Does Have Su-

ales cenie? Lit sina sinc A EEE REERET CREE

Completion of Evidence In Chief by

Flying Tiger Line In PTO/TTAB .., elvili

Fa!se Designation by = lying Tiger Line

elviiil

er eee ts tied Wie aicn ca ee clix

Registration by Republic of Morac-Song-

hrati-Meads clx

Attacks on Filipino Counsel of Flying

Tigers Oil Co. Ine. (Discrimination

against Filipino Counsel by Amer-

voc kab eek clx

Problems of Unclear and Contradictory

NS ree tr ogc ok en elxii

Adoption of All Questions Presented

In CAFC (Subsidiary Questicns) .... elxv

Many Questions Presented Explain

Themselves as Violations of The

Constitution or Trademark Law or

a ahem asec Ol

Baia enon sna Nama ae

TABLE OF CONTENTS i

Page

Federal Rules of Civil Proce-

a are er a ara alert elxvi

Appendice Y (Entry of Appearance by

Morton F. Meads. Robert Zlomke and

Flying Tigers International) _.... elxvii-clxviil

Appendice Z (Entry of Appearances by

Attys. A. C. Soriano and Vicente L.

con. eR Aaa ORAL eG clxix-clxx

Appendice AA (Proof of Service) ,. 26, clxxi-clxxii

Appendice BB (Sworn Statement of Mail-

ing on January 4, 1985) _.... 26. clxxili-clxxiv

Appendice CC (Entry of Appearance by

Aity. V. L. Santiago for Flying Tigers

International if Supreme Court Will Not

Allow Morton F. Meads to Represent

Flying Tigers International) clxxv-celxxvi

Appendice DD (Sworn Statement by Atty.

Vicente L. Santiago of Mailing on

January 4, 1985 ¢lxxvii-clxxviii

TABLE OF AUTHORITIES

Cases Page

Abbott v. Brown. Fla. 1916. 36 S. Ct. 689, 241

U.S. 606, 60 L. Ed. 1199 elvil

Aetna Life Ins. Co. v. Haworth, 1937, 57 S. Ct.

461. 463. 300 U.S. 227, 239, 81 L.E. 617,

Quoting From Re Pacific By. Comm., C.C.D.

Cal, 1887, 32 F. 241, 255) .......... CxXVlii, Cxxix

American Const. Co. v. Jacksonville, T. & K.

W.R. Co. 1893, 13 S. Ct. 758. 763. 148 US.

372, 384, 37 L. Ed. 486 . ow... eee eee

American Graphophcene Co. vy. National Phono-

graph Co. C.C.N.Y. 1904, 127 F. 349 elvii

ss &-S, Se e@ ©

Amos Treat & Co. v. Securities and Exchange

j TABLE OF AUTHORITIES

Cases Page

Commission, 1962, 306 F. 2d 260, 113 US.

On cnc ndtcbens eee xcili

American Brake Shoe & Foundry Co. v. Intei

bcrough Rapid Transit Co. D.C.N.Y. 1932, 1

Oe OO nes ec en ns oS eee

Baltimore Contraciors, Inc. v. Bedinger, 348 U.S.

ciii, elvii

Bue, sem Geeeee . wo i oa hee xevl, exllil

Bank of United States v. White, Ohio 1834, 33

U.S. 262, 8 L. Ed. 938 elvii

Barber-Colman C. v. Overhead Door Corporation,

1233, 65 F. 2d 147, 20 C.C.P.A. Patents

Beem 4 sa ee eee ee ee cix

Barron vy. Locke, D. C. 1850, 2 Fed. Case No.

SOME . £04 iaeeds SOS eee ev, clvii

Beck v. Washingtcn, 1962, 82 S. Ct. 955, 369

Us. 641, 664, 8 L. Bd 2a 8... ice ces CXXxvil

Bell v. Hocd, 327 U.S. 678. 684 (1946); 403 US.

Wee GOWER oa s Cue e cd tee ci

Bendix Aviaticn Corp. v. Glass, C.A. Pa. 1982.

95 F. 2d 267, 38 A.L.R. 2d 356 ely, elvii

Bi-Meta!lic Inv. Co. v. State Bd. of Equalization.

239 U.S. 441 (1915), 1979 Annual Survey of

Asnerwean SAG. . ok oa veaeueeee ¢c, ci, celvii

Bowles v. Willingham, 321 U.S. 603 (1944) _...... cl

Brown vy. Board of Education, 1952. 73 S. Ct.

1, 2, Oe, Om 3, 2 OF ee ee 8 oS eee CXXXV

Burge v. Richardson, D.C. Ga. 1971, 321 F.

PUR. OS a a be ox dve ensue eee XCiV

Campbell Soup, Co. v. Armour & Co.. D.C. Pa.

1948, 81 F Supp. 114 Affirmed 175 F. 2d

795, certiorari denied 70 S. Ct. 88, 338 U.S.

G7, O64 &. He. CIO oi ccivxcseeeeeee cx

Carter v. Carter Coal Co. 1936, 56 S, Ct. 855, 298

U.S. 238 80 L. Ed. 1160 CXXXV

Chandle v. Houdebush, 1976, S. Ct. 1949, 425

<< ULL

TABLE OF AUTHORITIES K

Cases Page

US. 00, 450. Be 2a4ic .............. Cxxxil

Clymer v. US., C.C.A. Colo, 1930, 38 F. 2d

CTE se. tes eee ciii, elvii

Cohen v. Beneficial Indus. Loan Corp. 337 US.

Se xev, cli, cxlii

Crescent Wharf & Warehouse Co. v. Pillsbury,

C.A. Cal. 1958, 259 F. 2d 850 .......... civ, elvii

Dasher v. Supreme Court of Texas, C.A. 5th,

1981, 658 F. 2d. 1045, 1049-1050 sg... cxxxi

De Vito v. Shultz, D.C., D.C. 1969, 300 F. Supp.

ee tt ee xciv

Duffield v. Charleston Area Medical Center, Inc.

Ow... we... =ZCIV

Dwinell-Wright Co., v. National Fruit Product

Co., Inc., CCA, Mass 1942, 129 F. 2d 848 _._.... cx

E. C. Atkins & Co., 1907, 29 App. D.C. 385, error

dismissed 29 S. Ct. 390, 212 U.S. 285, 53 L.

EE Ee cxl

E. C. Dames & Moore v. Regan, 1981, 101 S. Ct.

2972, 453 U.S. 654, 69 L. Ed. 2d 918 _,.... CXXxXiv

E. C. Taylor v. McElroy, 1959, 79 S. Ct. 1428,

1429, 360 U.S. 709, 710. 3 L. Ed. 2d 1528 .. cxxxv

E. G.. Dennis, v. US. 19 51. 71 S. Ct. 857, 871,

341 U.S. 494, 516,95 L Ed 1137 ........ .. ¢XXxXvil

E. I. du Pont de Nemours & Co. v. Train, C.A.

4, 1976, 641 F. 2d 1018 .............. xciv, xXcVv

Eisen v. Carlisle & Jacquelin (Eisen I) 370 F. 2d

119, 12021 (2d. Circuit 1966), cert. denied.

Er xcix, cxli

Eureka Williams Corp. v. McCorquodale, 19653,

205 F, 2d 155, 40 C.C.P.A. Patents 1028,

certiorari denied 74 S. Ct. 121. 346 U.S. 872

ee evii

Ex Parte Quirin, 1942, 63 S. Ct. 1, €-7, 317 US.

RO ill CXXXV

] TABLE OF AUTHORITIES

Cases Page

Federal Products Co. v. Lewis, 1927, 23 F. 2d. .

TO Oe: WO OO, oo ka ec kee hana clx

FCC v. Schreiber, 381, U.S. 279 (1965) ............ c

FTC. v. Travelers Health Assn., 1960, 80 S. Ct.

717, 362 US. 298 4 L. Ed. 2d (724 ........ CXXXVil

Flast v. Cohen, 1968, 88 S. Ct. 1942, 1949-1950,

392 U.S. 83, 94, 95, 20 L. Ed. 2d 947 ...... c@XXix

Fontenct v. Rcach. D.C. Tenn. 1954, 120 F. Supp.

Se aa A rs ee Oe en ee ev, elviii

Florida East Coast Ry., 410 U.S. at 242, 245

quoting Bi-Metallic _..........cccccucccce ce. clvil

Forsyth v. City of Hammond, 1897, 17 S. Ct. 665,

668. 166 U.S. 506, 513. 41 L. Ed, 1095, .cxxxili, exxxiv

Gay v. Ruff, 1934, 54 S. Ct. 608, 292 U.S. 25,

ee a ee ee ee CXXXIV

Gilbert v. U.S. 1900, 35 Ct. CL. 573 .......... clvii

Gillespie v. United States Steel Corp., 379 US.

ae RU ace Wk 6k swe le Raade cl

Glidden Company v. Sdanok (1962. 82 S. Ct.

1459, 370 U.S. 530. 8 L. Ed. 2d 671, NOTED

1962, 76 Harv. L. Rev. 160, 37 Tul. L. Rev.

141) CXXxvi

~~ s.e oe Ce + © 61S 28 eS Oo Oe OO OE 2S SS 826.4 oO DO 8. SS

Guaranty Trust Co. of N.Y. v. York, N.Y. 1945,

65 S.. Ct. 1464. 326 U.S. 99, 89 L.Ed. 2079,

160 A.L.R. 1231, rehearing denied 66 S. Ct.

7, 326 US. 806, 90 L. Ed. 491 ........ elit, clvii

Hall's Safe Co. v. Herring-Hall-Marvin Safe Co.,

S008, 31 App. DO. 400... cicicnecmin x, evi, cli

Haitian Refugee Center v. Civiletti, D.C. Fla.

1980. 503 F. Supp. 442, 461 _............. CXxix

Hannis Drilling Co. v. George W. Torrey Co.,

coon, Se RO RS. TP iw saan eeeands

Hartley Pen Co. v. Lindy Pen Co. D.C. Cal. 1954,

16 F. R.C. 141 elvil

TABLE OF AUTHORITIES m

Cases Page

Hartman v. Scott 488 F. 2d 1215 8th Cir.

1973); 1979 A.S. of Am Law ................ cil

Hecker v. Fowler, N.Y. 1865, 2 Wall, 123 17,

Ee SR aie eek) yy 64 ape er cii, elvil

Haskelite Mfg. Corp. v. Plywood Corp. 1947, 162

F, 2d 464, 34 C.C.P.A. Patents 1172 ..| evii, cli, clii

Huntington Laboratories v. Onyx Oil & Chemical

Co. Cust. & Pat. App. 1948, 165 F. 2d 454 | evil, clii

IS. v. Sherwood N.Y, 194i, 61 S. Ct. 767, 312

US. 584, 85 L. Ed. 1058 _................. elvii

Intermingled Cotton Cases, Ct. Cl. 1876, 92 U.S.

Ses ee ee Ge ene eee ba ehas ued ciii

Jenkins v. Blue Cross Mutual Hosp. ins. Ine.

522 F. 2d 1235, 1237-38 (7th Cir. 1975),

aff’d en banc 538 F. 2d 164 (7th Cir.), cert.

denied, 429 U.S. 986 (1976) (jurisdiction

exercised when class action determination

“directly controlled’ denial of preliminary

sige ates hE ee Oe ene Te SRL Te ye xvi

John Morrell Co. v. Doyle, C.C.A. Ill. 1938, 97

F., 2d 232, cert. denied 59 S. Ct. 146, 305

US. 643, 88 L. Ed. 415 ................ ex, clviii

Kamen Soap \Products Co. v. U.S. 1953, 110

supp. 450, 124 Ct. Cl. GIO _. gd. wc cccccccee Civ

Lechrich v. Rinaldi, D.C.N.J. 1965, 246 F. Supp.

cla SRE Eg LE ee NR RL ec: Se ee xciil

Lombard v. Macera, 99 S. Ct. 2833 (1979) at

en eee) MER aR i ee Reet eae OR eh xevi, exliil

Londoner v. Denver, 210 U.S. 873 (1908) (hear-

ing required prior to assessment against in-

dividual landowner’s property for benefit re-

sulting from paving of street, quoting Flo-

rida East Coast Ry., 410 U.S. at 242, 245

OTIC cc cnc cn cee nace elvil

Love v. U.S. 1952, 104 F. Supp. 102, 122 St.

Cl. 144 civ

T AVAILABLE COPY

TABLE OF AUTHORITIES

Cases

Lowe v. U.S., D.C.N.J. 1941, 37 F. Supp. 817

Loewe v. Lawler, 1908, 28 S, Ct. 301, 208 U.S.

274, 62 L. Ed. 8 405463 eee

Lutcher & Moore Lumber Co. v. Knight, 1910,

30 S. Ct. 505, 217 U.S. 257, 54 L. Ed. 57 ..

Marconj Wireless Tel. Co. of America v. Simcn,

19918. 38 S Ct. 275, 277, 246 U.S. 46, 57,

62 L. Ed. 866... waco eee

McClellan v. Carland, 1910, 30 S. Ct. 501, 503,

217 U.S. 268, 280, 54 L. Ed. 742 ........

Mellhenny v. New Iberia Extract of Tcobasco

Pepper Co.. 1910, 34 App. D.C. 430

henry ee

Melville Shoe Corp. v. Lester Pincus Shoe Corp.,

Cust. & Pat. App. 1962, 305 F. 2d 884...

Merrick v. Sharpe & Dohne, C.A. IU. 1951, 185

F. 2d 718, certiorari denied 71 S. Ct. 573,

S41 US. 04, 6 LL. Be ae

Miles Laboratories v. Pepsodent Co., 1939, 104

F. 2d 205, 26 C.C.P.A. Patents 1272 ..._......

Miles Shoes. Inc. v. R.H. Macy & Co.. D.C.N.Y.

1951, 102 F. Supp. 977 reversed on other

grounds 199 F. 2d 602, certiorarj denied 73

S. Ct. 650, 345 U.S. 909, 97 L. Ed. 1345 .

Mishawaka Rubber Co., 1940. 109 F. 2d 219,

27 C.C.P.A. Patents 888

Page

elvii

CXXxXVi

CXXXVvil

CXXXVii

CXXXix

xevili

xX¢vili, eviii

Cvi

“*

| I CXXX

Mutual Building Fund Soc. & Dollar Sav. Bank

v. Boxxieux, D.C. Va. 1877, Fed. Cas. Niro.

9.977 ceili, elvii

eeon4eaes @ 686826 e 2 8 BBS SS Se eee eee

Myers v. Polk Miller Products Cerp. 1953, 201 F.

TABLE OF AUTHORITIES oO

Cases Page

Sa 378, 40 C.C.P.A. Patents 739 .......... xeviii

Napua v. Illinois, 1959, 79 S. Ct. 1173, 1178, 360

a aee, oak, © &. Be. 3d 1217 ........ Cxxxvili

N.L.R.B. v. National Paper Co. C.A. 5, 1954,

yg Sunless @ es X¢iv

N.L.R.B. v. Tamper, Inc. C.A. 4, 1975, 522 F.

ES er XCiV

National Nutritiona] Foods Ass’n. v. Weinber-

ger, C.A. N.Y. 1975, 512 F. 2d 688, cer-

tiorari denied 96 S. Ct. 44, 423, U.S. 827,

46 L. Ed. 2d 44, on remand 418 F. Supp.

ES A a XCV

National [csources Defense Council, Inc. v.

United States Nuclear Regulatory Commis-

Ee XC1X

Ott v. Specdwriting Publishing Co. 518 F. 2d

| ee cli

Peterson v. U.S. 1890, 26 Ct. Cl. 93 .............. cili

Pink Lady Corp. v. L.N. Renault & Sons, Inc.

1959, 265 F. 2d 951,46 CUPA 865 .......... eviii

Pre Fab Transit Co. v. U.S. D.C. Ill... 1969, 306

F. Supp. 1247, affirmed $90 S Ct. 815, 397

SD eS XCiV

R.V. McGinnis Theaters & Pay T.V. Inc. v. Vi-

deo Independent Theatres, Inc. C.A. Okl, 1967,

386 F. 2d 592, certiorari denied 88 S. Ct.

1265, 390 U.S, 1014. 20 L. Ed. 2d 163 xCV

Re Mark Cross Co. 1905.26 App. D.C.101 || evii, exl, elii

Re Pacific Ry. Comm., C.C.D. Cal. 1887. 32 F.

241, 255 CXXVili

i te oS eS ££ SS OS & 2S 2 6 4 Oa Se] Oe 6 OS

Re Summers, 1945. 65 S. Ct. 1807, 325 U.S. 561,

ck ccc ucs ews venice.

Robert Hall Clothes, Inc. v. Studds, Cust &

Pat. App. 1961, 286 F. 2d 615

a Sih CSS Oo he OOS

P TABLE OF AUTHORITIES

Cases Page

Royal Tailors v. J.M. Robinscn, Norton & Co.

ee, Oe OO OR. A kann eacece aes evii

Russell-Newman Mfg. Co. v. N.L.R.B.. C.A. Tex,

ee ee. Cael ie we x ume eck xciil

Safeway Stores. Inc. v. Chickasha Cotton Oil

Co. D.C. Okl. 1959, 186 F. Supp. 534 .......... cx

Scholl Mfg. Co. v. Simon, 1949, 173 F. 2d 245,

we CSP A. Felon OP Cj Cf kk vec ecce ev, cli

Shacthtman vy. Dulles. 1955, 225 F. 2d 938. 96

ee ee eM chau aa eek Ca KS xclii

Share vy. Air Properties C. Inc., 5388 F. 2d 279.

284 (9th Cir.) cert. denied, 489 U.S. 923

(1976) xevi

Societe Anonyme Marne Et Champagne v. Myers,

1957. 250 F. 2d 374, 45 C.C. PA. Patents

er ee eee ee re xevii

Southern Stevedoring Co. v. Voris, C.A. Tex.

Ss Se a ey ees Co KS xciil

Speed Products Co. v. Tinnerman Products, C.A.

is me We) a Ae >: xevili, exl

Swift & Co. v. U.S. C.A. 7, 1962 308 F. 2d

a fOr ED pe me Eg are Nye eee . xelil

Symons v. Roberts 1929. 30 F. 2d 566, 58 App

LR Set ae ora ong rs Goer id op era ea evi, cli

The Selt, D.C. Wis. 1872. 3 Biss 344. 21 Fed.

oe Oe Lary aye yy arn ev. clvii

Turner v. City of Memphis, 1962. 82 S. Ct.

805, 80 7. 369 U.S. 350, 358-354. 7 L. Ed.

RT oe re Ce, lowe a ee Ney CXXXV

Tutun v. U.S. 1926, 46 S. Ct. 425. 270 USS.

eS ee ee ae Ree CXXXi

Ullman. v. U.S. 1956, 76 S. Ct. 497, 350 US.

422. 100 L. Ed. 511 CXXXi

ee ee ee ee oe oe a ha ie a

U.S. v. Aluminum Co. of America, 1944, 64 S.

Ct. 1281, 322 U.S. 716. 88 L. Ed. 1557 CXXxil

oe Le

TABLE OF AUTHORITIES q

Cases Page

U.S. v. Banker’s Trust Co., 1935, 55 S Ct. 407,

410, 294 U.S. 240, 294, 79 L. Ed. 885 .... exxxv

U.S. v. First City Nat. Bank of Houston, 1967,

87 S. Ct. 1088, 1094, 386 US. 361, 369-

370, 18 L. Ed. 2d 261 .............. CXXXl, CXXxil

U.S. v. Florida East Coast Ry. 410 US. at

SOE ee reek wk en ee ee ea ci

U.S. v. Nixon v. 94 S. Ct. 3090, 418 U.S. 524,

So See ee dee Se CXXX1V, CXXXV

U.S. v. United States Dist. Court, 1948, 68 S.

Ct. 1035, 334 U.S. 258 92 L. Ed. 1351 ..... CXXxil

U.S. v. United Mine Werkers, 1947, 67 S. Ct.

677, 684, 330 U.S. 258, 269, 91 L. Ed.

a ME ne Fe eet), CXXXivV, CXXXV

Vermont Yankee Nuclear Power Corp. v. Na-

tural Resources Defense Council, Ine. 435

Wan OW GONOE gona evicck ka vktmeereea c

Village of Schaumburg v. Citizens for a Better

Environment, 1980, 100 S. Ct. 826, 444 U.S.

620, 63 L. Ed. 2d 73 CXXXVi

Washington-Southern Nev. Co. v. Baltimore &

Philadelphia Steamboat Co. Pa. 1924. 44 S.

Ct. 220, 263 U.S. 629. 68 L. Ed. 480 ......... cii

Wasscn v. Trowbridge C.A. N.Y. 19€7, 382 F.

2d 807, on remand 225 F. Supp. 936 ........ XCiVv

Weinstein v. Bradford, 1975, 26 S. Ct. 347, 423

U.S. 147, 46 L. Bd. 24300... . ce CXXX

Whitney v. Dick, 1906, 26 S. Ct. 584, 202 USS.

Re, GO be. Be, OD non wk cncucwt. CXXXiV

Williams v. Mayor and City of Baltimore, 1933,

do S. Ct. 431, 289 U.S. 36, 77 L. Ed. 1015 |.) exxxvi

Wilson v. Delaney, 1957, 245 F. 2d 877, 44

CAA. ee De ek evi. cli

Wilson v. Girard, 1957, 77 S. Ct. 1409, 354

US. 624,11 L. Bd. 2d 1604... we CXXXiV

r TABLE OF AUTHORITIES

Cases Page

William Rogers v. International Silver Co. 1907,

30 App. D.C. 97 cx

eee ee ee ee eee ee ee ee

Windham v. American Brands, Inc. 539 F. 2d

1016, 1021 (4th Cir.) (1976) Revd on other

grounds, 565 F. 2d 59 (4th Cir.) (1977) en

bane cert. denied, 435 U.S. 968 (1978) ...... xcvi

Word v. US., D.C. Ala. 19€3, 223 F. Supp.

614 XClv

ee a ee ae ee ee ee ee ee ee oe rn a 2 Se ee ee ee ee

Wyker v. Williamson, D.C, Ala. 1944, 55 F.

a EE ree re a clvii

Youngstown Shoet & Tube Co. v. Sawyer. 1952,

72 S. Ct. 868, 348 U.S. 579, 96 L. Ed.

Ses casa ckue eee eee CXXXIV, CXXXV

CONSTITUTION OF THE UNITED STATES:

Article I 8. cl. 8 Commerce Clause ,...., 4, 23, exxviil

BMT BE nono kh 64 vi KK 4, 23, Ixvii, Ixix

Article II] .......... 4, 23, iii, iv. vi, viii, x, Ixix-Ixxi,

5 6 ntadie cicdiawindee CXXVii, CXXvili, exxix

First Amendment ,..... 3, 4, 6, 8, 9, 23, 24, 28, 29, ii,

iil, iv, v, vi, vili, ix, x, xi, xii, xiv, xxii, Ixxi, exxvi,

he eh s+ he eee kota eee exli, exlvii, elxvi

Fifth Amendment ...... 3, 4, 6, 8, 9, 28, 24, 28, 29, ii,

iii, iv. v, vi, viii, ix, x, xi, xii, xiv, xxii, Ixxi, cxxvi,

CTC T Teer See re ee exli, exlvii, elxvi

Fourteenth Amendment ,..... 3, 4, 6, 8, 9, 23, 24, 29, ii,

iii, iv, v, vi, vill, ix, x, xl. xil, xiv, xxii, Ixxii-

og Bs Fan et die Ixxxiii, exxvi, exli, exlvii, elxvi

STATUTES:

Civil Rights Act of 1866 ._................ 3, 4

Civil Rights Act of 1964, Pub. L. 88-352,

78 Stat. 241 3. 4, v

ee &.8-4°9.824064 664624 6 4 6 2 2 6 2 2 O78

Act of June 9, 1944, C. 239, 58 Stat. 272 .. exxxii

The Rules Enabling Act. 28 U.S. Code Sec.

2072 cill

;

TABLE OF AUTHORITIES s

Page

62 Stat. 961, June 25, 1948 ..................... cii

GS Stat. 104, May BA, 1DGD _ jg ww cccccccae cil

Public Law 489, 79th Congress, Chapter

540, Approved July 5, 1946, 60 Stat.

49, 427 (Trademark Act of 1946 as

Amended) 429, 431, 482, 433, 434, 436,

440, 441... 4, 6, 9, 10, 12, 20, 23, iv, v,

vi, ix, xii, xiii, xv, xvii, xxiii, xlv, exx, ¢xxvi,

. (XXX, CXxxviil, cx'iv, exlvi, clx, clvi, elxvi

UNITED STATES CODE:

Oh Us ns can eae eet xcv, exli

oS a ee ee ee) eo a wes CXXXil

Oe I oe os ce a wae ae 23, |

ie Sa Se SO OE cpa as babies eee clv

ce ek SE OE aw awdacceesseeece ew cx

Se ee Se i cace ees snc eee Ub eeuas 2

. ee ee ee OO One Ss 4, xlvi

) Bhs ta perc bie-seunnas tS OR EET TEER Tee 2

ee See Se ek OS ee ees 2

SP ee 8S eee eee 4, xlvi

15 U.S. Code 1063 _.. 2, 4, x, xlvii, ev, evi, cix, cli

15 U.S. Code 1064 |. 2, 4, xlvii, xIviii, evii, cix, clii

aie ee | eee ae evii, cix, ex, clii

15 US. Code 1071 ...... iv, ix, xxv, cviil, civ, exl,

exli, clii

ae ee 9 ae Or re eee eae 4

NO oh a bs ce as aoa eee ee

BD Sim AOD so ov aces hn adandeucens 3

er ea ee Oe... cs as ay en alae eee 3

: iS US. Cede LLI9 ............. 3. 4, xlix, exxxix

| STATUTES:

| ee ee rer .., 4, xlix

i Rie ie > : en 3, 4, 1, ex

| ih UR TA OR oes A 3, 4

oe See Se ROE ok Co x bce nee a aee cen 4, 1

; 15 U.S. Code 1126(a) ..... .... 2... 2, 4, cxxxix

a ee

t TABLE OF AUTHORITIES

Page

ee ee er renee re 4, 1

ee ce te er he an a clv

ee ee oa ha aes CXXX1X

- : S0UL lee 4, Ixxiv

Bee Wee Me nc vccncwnce 4, Ixxiv

ee ee ee eee ae 4, Ixxv

28 U.S. Code 12538 ............. ... & ty, Rev

28 U.S. Code 1254 .......... 4. Ixxv, eXX, CXxxili

28 U.S. Code 1256 ................ 4, Ixxv, ¢cxx

me Sa Ce ee 3, 4, Ixxvi

28 U.S. Code 1292 ..__ 3, 4, 25, Ixxvi, xevi, exlii,

Re rere eee exliil

28 U.S. Code 1838 _.............. 2, 4, Ixxvii, cxx

28 US. Code 18438 .................... 4, iv, Ixxvii

2B US... Code 1642 «dd cece 3, 4, Ixxvili

me Ue. COGe LOGE (dn gc ccccccttnwwn CXXVil

28 U.S. Code 1651 ,.. . 3, 4, iv, xxvi, Ixviii, exxxviii,

Py AGT MAM Ranh exliil

ee ee a cii, elvi

28 U.S. Code 2072 .._... 4, 26, vil, lxxix, ciii, elvi,

elvili

8 ee i rn on oe elvi

ae US. Code 3101 .............. 4. Ixxix, exxxvi

28 US. Code 2108 ........... Ixxx

28 US. Code 2106 .................. 3, 4, Ixxx

2B U.S. Code 2109 6d cca. CXxxill

28 US. Code 2201 .......... 3, 4. Ixxxi, exxxix

28 US. Code 2403 (a) .................... 26

rs os Vue oa gee x 2, 4, 1xxxi

ee, Se cr OE ee Vee IXxxil

| ee 3, Ixxvii

GS UR. Cote BOGR 8g kc ikon ww ccc 3, 4, Ixxxiii

42 US. Code 1983 ............ 3, 4, 5, v, Ixxxiii

42 U.S. Code 2182 ; 8 4

2 ee, Se ee ee

42 US. Code 2459 (c)

44 U.S. Code 1510

SO O88 6446 666468 8 4 Oe 6 eS ae

TABLE OF AUTHORITIES u

Page

RULES:

TRADEMARK RULES OF PRACTICE OF

THE PATENTS AND TRADEMARK

OFFICE with Forms and Statutes 1976

— Ninth Edition, December 1976; Latest

Revision May, 1979 ..._. 4. 6, 12, 14, 19, 20, xii,

xiii, xv. xvii, li-lxnvi, exliv, exlv, exlviii, elv

FEDERAL RULES OF CIVIL PROCEDURE .. 5,

6, 7. 9, 14. 18, 23, 27, i. ili. v. vi, viii, xi, xii,

xiii, xiv. xvii, xli, Ixxxiv-Ixxxvii, civ, ev, cxxiv,

Ste San te 8 Eo exxvi, exli, elvi, elvi, clxvi

FEDERAL RULES OF APPELLATE PRO-

RO 5, Ixxxviii-xcii

RULES OF THE SUPREME COURT (1980) ........

SECURE EE eC Ea ah G ek kes 5 i, CXxii-exxvi, CXXXvi

MISCELLANEOUS:

Se eg ecun xevi, exiiil

a Re re eee c, ei, elvil

Se SS. Ch. Ob EGDU-DGRR ggg kw cece CXXV1

370 US. at 542 and at 552 ........... exxvi, ¢xxvil

ee Re hale! re ratw wh § Ce eich CXXvli

102 S. Ct, at 2874-2880-2881, 2893 — exxvii, exxvili

ee ee oe a ca kcaseae exxviii

Ow Gi ON ov nan hc eck cuk eu kanean CXxviii

American Anti-Trust Review (24th) Randler |... cii

38 American Law Review 2d 356 ........ civ

160 American Law Review 1231 ........... ciii

Annual Survey of American Law

|. ae Roe xev, xevi, xcix, ¢, cl, cil

64 Columbia Law Review 1 .............. CXXixX

89 Columbia Law Review 1. (1972) Vandler

Ce) cil

89 Columbia Law Review, 75 (1975) Re-

{ dish The Pragratic Approach to Appel-

lability in the Federal Courts xev, exlil

2:4 6.8/4, %

TABLE OF AUTHORITIES

Harvard Law Review 160 (1985) “The

Constitutional Status of the Court of

Claims

Harvard Law Review I, ‘Toward Neu-

tra] Principles of Constitutional Law ,

Hardvard Law Review 40. ‘The Passive

Virtues, The Subtle Vice’ Gunther

Bickel] With Wechsler ...............

Harvard Law Review 297, Brilmayer.

The Jurisprudence of Article 1II: Pers-

pectives on the “Case or Controversy”

Requirement, 1979

Harvard Law Review 1698; Tushnet.

The Sociology or Article III: A res-

Page

ponse to Professor Brilmayer, 1980 | cxxix, cxxx

Harvard Law Review 1727; Brilmayer,

A Reply, 1980

Iowa Law Review 432 (Certification

the Proper Administraticn and Expe-

dition of Judicial Business

Tulane Law Review i44; Glidden v.

Zdanok, Noted 1962

Virginia Law Review 185 (1974) Verkuil,

Vermont Yankee. Death Knell

Wisconsin Law Review 343 (1975). Bice.

“The Limited Grant of Certiorari and

the Justification of Judicial Review” , .

“LAW OF FEDERAL COURTS” by Charles

A. Wright, 1983 |... cxxx. exxxi, cxxxiii, cxxxiv

“JURISDICTION” By Wright. Miller and

Cooper

CXXXVil

CXXXiV, cCXxxvii, cxxxvili

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

FOR THE TERM ENDING OCTOBER, 1984

THE FLYING TIGERS INTERNATIONAL,

MORTON F. MEADS AS INTERNATIONAL

COMMANDER OF THE FLYING TIGERS

INTERNATIONAL; ROBERT ZLOMKE, SMALL

STOCKHOLDER OF FLYING TIGERS OIL

CO. INC.; THE FLYING TIGERS OIL CO.

INC., ET AL.,

Petitioners,

THE U. S. COURT OF APPEALS FOR THE

FEDERAL CIRCUIT, THE FLYING TIGER

LINE INC., ET AL.,

Respondents,

ON WRITS OF CERTIORARI, MANDAMUS,

PROHIBITION WITH DECLARATORY RE-

LIEF TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL COURT

PETITION FOR WRITS OF CERTIORARI,

MANDAMUS, PROHIBITION AND FOR

DECLARATORY RELIEF

———

INTRODUCTION

The Petitioners herein respectfully pray that a

Writ of Certiorari issue to review the final Decision

of the United States Court of Appeals for the Fe-

deral Circuit dated October 5, 1984; and that Writs

of Mandamus/Prohibition be issued to the CAFC

same Court and to the Commissioner/Patents and

Trademark Office/Trademark Trial and Appeal

Board to Issue the ‘Registration of the sfer-

vice mark of the Flying Tigers Oil Co. Inc.

in its Application 86288, approved and published:

and to dismiss Opposition 63,986 filed out of time

and to cancel registrations 999,837, 969,394 and

1,004,930, inter ‘alia.’

OPINIONS BELOW

The opinion of the CAFC is unreported, Ap-

pendice C of this Petition, pp. xxiv-xxviii, the opi-

nions in the form of orders and notices of the

PTO/TTAB are also unreported. The said orders

in our possession are Appendices F, G, and I of

this Petition, pp. xxxi-xliv. Notices and orders not

in our possession and included by reference are

indicated at Appendices D, E, and H of this Peti-

tion, pp. xxix-xxx. These orders and CAFC deci-

sion dated October 5, 1984 in our possession are

also part of the Petition for Certiorari/Mandamus/

Prohibition/Declaratory Relief in the CAFC which

was joined with Appeal 84-602 and is subject of

the final Decision of CAFC.

oval bane

JURISDICTION

This is an action to stop the registration of

a servicemark of the Flying Tigers Oil Company,

Inc. by the Flying Tiger Line Inc. in the Patent

and Trademark Office and Trademark Trial and Ap-

peal Board; and a Counterclaim (petition for can-

cellation) for cancellation of registrations of the

Flying Tiger Line by the Flying Tiger Oil Co. The

Flying Tigers International has not yet intervened

in the PTO/TTAB because it did not believe that

that agency would do what it has done, but it did in-

tervene in the CAFC, which intervention by it

and two of its officers was denied. The Office of

Patents and Trademarks has jurisdiction over the

application for trademarks-servicemarks and regis-

tration of same, and oppositions to registrations

and petitions for cancellation of registrations, under

15 U.S. Code Secs. 1051, 1057, 1059, 1062, 1063,

1064, 1125 and 28 U.S. Code Sec. 1338 and 35 U.S.

Code Sec. 1. However, Petitioners claim that the

PTO/TTAB has no jurisdiction or authority over

an Opposition to registration filed out of time, i.e.

more than 30-days from the date of publication,

without any written request for extension of time

filed prior to the expiration of said 30-day period

and without any certificate of mailing; and further

claim that the PTO/TTAB is required by Statute

Law to disregard and not give due course to the

Opposition of the Flying Tiger Line.

The Petitioners claim that the acts of commis-

sion and omission by the Commissioner/PTO/TTAB,

. 3

some of which are represented by orders and no-

tices, violate Statute Law, the United States Cons-

titution on due process and equal protection; the

Fed. Rules Civ. Procedure; and the said orders

and notices, which are in themselves violations; are

dated February 13, 1981, March 6, 1981, Septem-

ber 16, 1981, July 15, 1982, December 22, 1982,

June 21, 1983. See Appendices D, E, F, G, H, I

of this Petition, pp. xxix-xliv. Notice of Appeal

to the CAFC was filed on October 26, 1983 accord-

ing to Certified List, that court having jurisdiction

of the appeal under 28 U. S. Code Secs. 1291,

1292, 1542, 1651, 2106, 2201; 15 U. S. Code Secs.

1116, 1117, 1119, 1121, 1122; and 35 U. S. Code

Sec. 142.

jb Apaliicpstne ATION. AN MES Ansett Sone? 9

Before the final Decision of the Court of Ap-

peals for the Federal Circuit in Appeal No. 84-602

the herein Petitioners filed a Petition for Certio-

rari/Mandamus’ Prohibition’ Declaratory Relief with

the CAFC, which was not given separate due course,

but according to the CAFC was resolved also in its

final Decision dated October 5, 1984 and according

to our information was joined with 84-602 in the

CAFC. The CAFC had jurisdiction of said Peti-

tion under 28 U. S. Code Secs. 1291, 1292, 1542,

) 1651, 2106, 2201; and 42 U. S. Code 1981, 1983,

i 2182, 2459(c); and 44 U. S. Code Sec. 1510 and the

| Civil Rights Acts of 1866 and 1964.

The final Decision of the CAFC denying said

Appeal and the Petition for Certiorari/Mandamus/

Prohibtion/Declaratory Relief is dated October 5,

1984 and we believe was entered on Octo-

ber 29, 1984. Its basic premise is_ that

it does not have _ jurisdiction. Notice of

Appeal to the Supreme Court of the United

States was filed with CAFC on October 20, 1984,

and that court informed us that appeal to the Sup-

reme Court had to be by Petition for Certiorari,

hence this Petition. The jurisdiction of this court

rests on 28 U. S. Code Secs. 1253, 1254(1), 1256,

1292, 1651, 2101, 2106, 2201; and 15 U. S. Code Sec.

1122; and 42 U. S. Code Secs. 1981, 1983, 2182, 2459

(c); and 44 U. S. Code Sec. 1510; and the Civil

Rights Acts of 1866 and 1964; and Veterans Rights

Statutes.

There is no order for rehearing. There is no

order to our knowledge granting extension of time

te file Petition for Certiorari although Motion was

filed by Petitioners in December, 1984 with the

Supreme Court. There is no Cross Petition.

STATUTES INVOLVED

Among these are the United States Constitu-

tion, Articles I, II, III, and the First, Fifth and

Fourteenth Amendments. The Trademark Law

15 U. S. Code Secs. 1057e, 1062a, 1063, 1064. 1111

1119, 1120, 1121, 1122, 1123, 1125a, 1126g; the Trade-

mark Rules of Practice of the Patent and Trade-

mark Office With Forms and Statutes, 2.115, 2.145,

2.189, 2.116, Forms 4.17 verification, et al.; Civil

Rights Acts of 1866 and 1964; 18 U. S. Code Secs.

241, 1001; 28 U.S. Code 211, 1253, 1254(1), 1256,

1291, 1292, 1338, 1343, 1542, 1651, 2072, 2101, 2106,

2201; 35 U. S. Code 1; 42 U.S. Code Secs. 1981,

1983; Rules of Civil Procedure for The United

States District Courts, Rule 8 (c) (d), Rule 13

(a) (b), Rule 28 (c), Rule 55 (a) (g), Rule 56

(b), Rule 57; Federal Rules of Appellate Proce-

dure, Rule 3(a)(c), Rule 4 (a) (1) (2), Rule 21

(a) (b), Forms 1, 3 are set out in full in Appen-

dices ‘J’, ‘K’, ‘L’, pp. xlv-xcii, infra of this Petition.

STATEMENT

The Flying Tigers Oil Co., Inc. filed an appli-

cation for trademark/servicemark, Application No.

86,288. It was processed, approved, published and

the 30-day period for filing oppositions after pub-

lication had passed without anyone, including the

Flying Tiger Line Inc. filing any opposition. Thus

the FTigers Oil considers that it is mandatory upon

the Commissioner of Patents and Trademarks to

issue the Registration corresponding thereto. How-

ever, instead of doing so, the PTO/TTAB accept-

ed an Opposition 63,986 filed on January 5, 1981

without any request for extension by the Flying

Tiger Line Inc., which is out of time considering

that the publication was on November 18, 1980.

Thus it is barred by statute. The proper proce-

dure for the PTO to follow would have been to

refuse to accept or deny said Opposition for be-

ing out of time and inform the Flying Tiger Line

Inc. that their only recourse is to file a Petition

for Cancellation, for which there is no technical

time limitation. Since the PTO did not do that

but instead gave due course to said Opposition it

violated the law and deprived the Flying Tigers

EE OO EEE

Oil Co., Inc., of which Robert Zlomke is a small

stockholder and secretary and with an interest to

protect and safeguard and who is thus prejudiced

in many ways by that illegal action, of equal pro-

tection of the laws and due process guaranteed

by the U. S. Constitution. The same applies to the

Flying Tigeis International who is a common law

owner of the mark and name ‘Flying Tigers’ and

Morton F. Meads as International Commander are

also similarly prejudiced and deprived. Therefore,

this is correctible by Certiorari/Mandamus/ Prohi-

bition’ Declaratory Relief or Appeal, since the ac-

tion/Notice’Order giving due course to said out of

time Opposition is final insofar as the giving due

course thereto is concerned. Thus it is appeaiable

er actionable by certiorari and Extraordinary Writ.

This initial unconstitutional and illegal Act/Or-

der of the PTO arranged by the Flying Tiger

Line Inc.’s lawyers started the PTO/TTAB down

a long road of violations of the Rules of Federal

Civil Procedure, violations of the Constitutional

Rights of the Flying Tigers Oil and its stockholders

to due process and equal protection of the laws

and its constitutionally protected property rights,

and consequentiy each and every one of its stock-

holders, large and small, and any organization from

which it obtained rights to use the name and mark

‘Flying Tigers’, such as the Flying Tigers Interna-

tional, its officers and members. If the PTO/TTAB

would not have committed this initial act in viola-

tion of the Trademark Law and the Rules of Prac-

tice in the Patents and Trademarks Office, almost

all of the other violations and issues and questions

eh ees). 3

er Slant haat

raised before the Court of Appeals for the Federal

Circuit, and now before the Supreme Court would

not exist. If the Supreme Court issues the Writ

of Mandamus/Prohibition requested, or order

CAFC or PTO/TTAB to do the same or the equi-

valent, almost all other issues raised to the CAFC

would become moot; and those that would not

could be resolved on the merits by the CAFC.

The PTO/TTAB stated that it would not con-

sider any move to question the out of time filing

of Opposition. Thus the Flying Tigers Oil Co. was

compelled to answer. It filed a Counterclaim of

Petition to cancel the registrations of the Flying

Tiger Line Inc. and stated affirmative defenses of

first use, false designation by the Flying Tiger

Lime, out of time filing, estoppel, fraud on the part

of Flying Tiger Line among many others.

PTO/TTAB denied the applicant’s Motion to

Dismiss and Opposer’s sham Motion for Summary

Judgment by an order dated September 16, 1981,

Appendice F of this Petition, pp. xxxi-xxxiii, but

allowed the introduction of two new issues not con-

tained in the Opposition by stating them in the

order and requiring applicant to prove thera, thus

placing the burden of proof upon FTOil which

should be upon FT Line if it had included them in

its Opposition, which it had not, and which per

force were thus barred from the case both by the

Federal Rules of Civ. Procedure and the out of

time filing of the Opposition, the deadline date be-

ing set by Statute Law. The TTAB also adopted

a false statement of FTLine’s American counsel,

which it, the PTO/TTAB, knew was false being

in possession of the original records of the appli-

cation, and it refused to correct either the falsifica-

tion of the FT Line or its own, thus tieing these two

together even more firmly in their violations of Sta-

tute Law and the constitutional rights of herein

Petitioners to due process and equal protection.

Flying Tigers Oil filed a Motion for Reconsi-

deration, a supplemental answer with exhibits and

affirmative defenses. The TTAB ruled these out

by its order dated July 15, 1982, Appendice G

of this Petition, pp. xxxiv-xxxviii. The Flying Tigers

Oil filed a Motion for Summary Judgment based

upon the affirmative defenses in the original answer

and the failure of FTLine to answer specifically

many material averments of the FTOil, and failure

to answer many other material averments at all.

The FTLine did not file any oposition to the

Motion for Summary Judgment of the FTOil. Not-

withstanding, the TTAB denied the Motion for

Summary Judgment of FTigers Oil motu proprio

stating that it was not compelled to grant it be-

cause the opposing party did not oppose it. This

was done by Order dated June 21, 1983, Appendice

I of this Petition, pp. xxxix-xliv. This outrageous

favoritism is companioned with the removal from

the record (as shown by the Certified List, Ap-

pendice M of this Petition, pp. xciii, that pleading

not being listed there) of the Pleading of FTigers

Oil which itemized each and every averment of

FTiger’s Oil that the FTiger Line and its counsel

failed and refused to answer, which answer is man-

datory. ;

The TTAB in its last order subject of appeal

did not rule on the Flying Tigers Oil’s Motion for

Leave to file Supplemental Answer or Amended

Answer after it had previously claimed that it had

denied the same because there was no Motion for

Leave of Court, even while it was in effect allow-

ing the FTLine to amend its Opposition through

the sham-gimmick Motion for Summary Judg-

ment.

The Acts of Omission and Commisison of the

PTO/TTAB prior to, in between and after the is-

suance of said orders, and also embodied in those

orders, were appealed as violations of the constitu-

tional rights of the FTOil to due process and equal

protection, and violations of the Trademark Law,

and the Federal Rules of Civil Procedure, cons-

tituting prohibited discrimination, which is imme-

dately appealable to the CAFC and/or the Supreme

Court.

Some of these Acts of Omission and Commis-

sion constituting the aforecited violations are:

(A) Giving due course to an opposition filed

out of time in violation of statute (not subject to

extension as a court has discretion to extend with-

out a request) which prescribes exactly 30 days

from date of publication unless a written request

for extension of time is filed prior to expiration of

the 30-day period. None was filed.

(B) The PTO acting motu proprio for the

benefit of the FTiger Line even though the latter

made no written request for extension of time as

required by the Trademark Law gave due course

to the opposition of FTLine.

F Tigers Oil for its mark already processed, approved

and published, with the thirty days for filing op-

position already expired without any opposition

being filed or any written request for extension of

time being filed.

(D) Refusing to correct its mistake/wrong-

doing/violation even after being informed and moved

by Petitioner FTigers Oil.

(E) Refusing to admit a supplemental ans-

wer from the FTigers Oil even while allowing the

Opposition out of time, the latter not being discre-

tionary on the part of the PTO/TTAB, but the

former allowable on motion.

(F) Allowing the FTiger Line to file a sham

Motion for Summary Judgment for the purpose of

raising additional issues not included in the Opposi-

tion, and then in an Order directing that the FTigers

Oil must prove those Issues/Matters even though

they were never included ir the Opposition/Com-

plaint — and thus legally barred from the case,

which was already barred by the Trademark Law

for being filed out of time.

(G) Violation of equal protection and due

process by TTAB’s refusal to allow Supplemental

Answer with Additional Affirmative Defenses and

Exhibits, but allowing FTiger Line to introduce

issues by a sham motion that were never included

in the Opposition.

(H) Refusing to require FTiger Line to answer

each and every allegation in the affirmative de-

fenses and counterclaim of FTigers Oil, and thus

altowing it to plead on a different standard than

is applied against the FTigers Oil; and refusing

to rule and act in accordance with the law spe-

cifying that failure to answer or to answer specifi-

cally constitutes an admission (which admissions

destroy the Opposition and show that fraud and

perjury were employed to obtain registrations).

(1) Failing and refusing to apply those ad-

missions against the FTiger Line respondent here-

in to reduce litigation.

(J) Failing and refusing to acknowledge that

said failure to answer constituting admissions

amount to grounds for dismissal of the Opposition

on the merits, and amount to admissions that the

Opposition is perjurious and the applications and

affidavits filed by FTiger Line are false.

(K) Removing or not entering in the record

the Pleading of the FTigers Oil itemizing in detail

each and every allegation that the FTiger Line

failed refused to answer (which Pleading pinpoint-

al unanswered allegations and cornered the PTO/

TTAB in its continuing illegally favorable Acts/Or-

ders on behalf of the FTiger Line) and which re-

fusal to enter pleading of FTigers Oil, or the re-

moval thereof from the record, was discovered by

the FTigers Oil only from the Certified List finally

obtained from the CAFC in Appeal No. 84-602,

and which was obviously removed or not entered

precisely to make the PTO’/TTAB look good on

its illegal allowance of FTiger Line to plead a

case without answering all the allegations/affirm-

Diiieenll

tive defenses of the Flying Tigers Oil, which omis-

sion is an act of falsification of the record and fraud

for the benefit of FTiger Line.

(L) Untruthfully telling the FTigers Oil that

the Official Gazette was months behind in publica-

tion and thus an extension is allowable, when in

fact upon verification with the Government Print-

ing Office there was no such late publication for

months prior to actual publication of November

18, 1980 for the mark of the FTigers Oil except

for one day. See Appendices ‘O,’ ‘P,’ ‘Q’ of this

Petition, pp. cxi-cxiv.

(M) Making amendments or adjustments in

Trademark Law or Rules of Practice, or in the

application thereof, when the statute specifically

states that no amendment can be made that causes

damage to anyone (in other words adjustments

can be made providing that there is no objection).

(N) Denying Motion for Summary Judgment

of FTigers Oi' even though FTiger Line never filed

any opposition thereto; nor separately or in conjunc-

tion therewith ever answered all the allegations and

affirmative defenses of the Flying Tigers Oil (which

were not answered because to do so under oath

falsely would lead to a case or cases for perjury,

and if they told the truth FTiger Line would be

admitting that it has no basis for opposition and no

basis for their applications to use the name of the

Flying Tigers Oil and its “Tiger Head Logo’)

(O) Issuing an Order dated December 22, 1982

and never sending a copy to the FTigers Oil (which

was learned only in 1984 when a copy of the Cer-

tified List was sent to the FTigers Oil by the CAFC

aE se ONIN Ks Ber eiie DeS |

eee Oe Se eee eee

showing that Order) thus prejudicing the FTigers

Oil in the prosecution of its Petition to cancel re-

gistrations of the FTiger Line.

(P) Refusing to send FTigers Oil copy of said

Order and even after formal request has been made.

(Q) Sending another Order to the address of

the FTiger Line instead of the address of the F Tigers

Oil thus preventing FTigers Oil from knowing what

is transpiring and what status the PTO/TTAB has

given to the case/controversy.

(R) Giving to FTiger Line four additional

chances to present Evidence in Chief since the

Order of December 22, 1982 (which Order was ne-

ver sent to FTigers Oil), and three additional

chances after the FTiger Line completed its evi-

dence in Chief without any witnesses, and only one

illegible undecipherable document unidentified and

unsigned, with two registrations that are subject

to cancellation proceeding on grounds of perjury,

fraud, whereas the FTigers Oil would have only

one chance after everything is fixed up for the

FTiger Line — although that should not be neces-

sary because the Opposition Proceedings are ille-

gal in the first place because of having been filed

out of time without any written request for ex-

tension of time.

(S) Denying various things to the FTigers Oil

but quickly and readily granting approximately the

same things to FTiger Line, such as furnishing co-

pies and answers to queries.

(T) Failing/refusing to answer repeated re-

quests of FTigers Oil as vo whether a deposition

had been filed by the FTiger Line.

(U) Continuously and consistently demons-

trating discrimination against Oil and in favor of

Airline, with all that those connote and signify sub-

liminally. |

(V) Failing/refusing to require FTiger Line

to answer allegations of false designation in use of

mark ‘Flying Tigers’ (use after filing of application

in 1970’s) owned by the Flying Tigers International

and Flying Tigers Oil and Flying Tigers Party in

common law.

(W) Violating the confidentiality of the ap-

plication of FTigers Oil prior to registration by

showing and furnishing copy thereof to FTiger

Line or its counsel (which prior to registration is

prohibited by the Trademark Law).

(X) Failure to rule and allow Motion for

Leave of Court to amend Answer with Affirmative

Defenses and Counterclaim of Petition for Cancel-

lation or admit Supplemental Answer with addi-

tional affirmative defenses.

(Y) Failure to disqualify Fruge, Rice, Quigg, |

Simes, Hutt, Chapman, Mossinghoff after charges

of favoritism were filed.

(Z) Allowing notarization of affidavit for

FTiger Line in proceeding in the PTO when the

name of that notary is essentially the same as a

member of the law firm of FTiger Line, Lyon and

Lyon, which is prohibited by the Federal Rules of

Civil Procedure.

(AA) Allowing defective oath, contrary to the

requirements of the Trademark Rules of Practice,

for FTiger Line in proceedings before PTO/TTAB.

(BB) Failing to publish Amendments of Rules

Rules or Proposed Amendment of Rules in the

Official Gazette and Federal Register, beneficial to

the FTiger Line.

(CC) Giving of legal advice openly in Orders

to FTiger Line and its counsel and telling them how

to prevail over the FTigers Oil.

(DD) Allowing private contact with key per-

sons in the PTO/TTAB in order to arrange favor-

able treatment for the FTiger Line.

(EE) Failing to inform FTigers Oil of its

Decision/Action on FTigers Oil’s Motion For Leave

of Court to amend its Answer with Counterclaim

of Cancellation of Registrations of FTiger Line.

(FF) Failing to inform FTigers Oil of rulings

on the filing of various papers by the FTigers Qil.

(GG) Failing to report to the FBI the keep-

ing of papers by the FTiger Line that belong to

the FTigers Oil and which were sent to the address

of the FTiger Line.

(HH) Refusal to resolve FTiger Oil’s Mo-

tion for Reconsideration of Order dated July 15,

1982 denying Motion to Dismiss.

(II) Answering inquiries and requests of

FTiger Line always and quickly and formally but

not answering those of FTigers Oil.

(JJ) Failure to resolve Motion for Reconsi-

deration of FTigers Oil of Order dated July 15, 1982

on FTiger Line’s simulated sham Motion for Sum-

mary Judgment on the two matters introduced

thereby but not in issue because of their complete

absence from the Opposition filed out of time.

(KK) Transforming and considering FTigers

Oil’s Motion for Summary Judgment as a Motion

for Judgment on the Pleadings when in fact said

Motion did not ask for resolution of all the issues

in the case, which in itself is before PTO/TTAB

illegally having been filed out of time.

(LL)) Stating that the objection of FTigers

Oil to some illegible and undecipherable document

without certification was made too late, but which

is discretionary under the rules, but allowed FTiger

Line to file Opposition/Complaint very much out

of time, without any written request for extension

of time or a certificate of mailing, which is not dis-

cretionary and is fixed by Statute.

(MM) Issued an Order in Letter form that no

order should be issued prejudicial to the FTiger

Line during an investigation for exclusion of FTiger

Line’s counsel for misrepresentation and fraud, but

without equal treatment that no order can be

issued against the FTigers Oil during the same pe-

riod.

(NN) Whitewashed charge of fraud without

seeking particulars from FTigers Oil and its coun-

sel, and without asking FTigers Oil for any evi-

dence that it has to prove the charge.

(OO) Placing in Order the misrepresentation

of the FTiger Line and its counsel, which falsehood

is evident from the very document involved, which

is in the possesion of the PTO/TTAB, thus showing

cutright dishonesty, but total subordination to the

wishes of the FTiger Line and its counsel.

(PP) Failing and refusing to correct said

felse statement in said Order after it was called to

the attention of PTO/TTAB — thus constituting

willful falsification of record against FTigers Oil

and in favor of FTiger Line and its counsels.

(QQ) Pretended that the telephone company

gave it the address of the FTigers Oil in Phoenix,

Arizona, when in fact it was the address of the

F Tiger Line, which type ‘Mistake’ is inconceivable,

unless part of a plan in the PTO/TTAB/FTiger

Line.

(RR) Failed/Refused to send a complete co-

py of the Certified List to the FTigers Oil after

Appeal; and after repeated complaints sent only

Page 3 thereof consisting of only three items (which

reluctance is understandable since it reveals Or-

ders not sent to FTigers Oil and Pleadings of

F'Tigers Oil never resolved, and the material Plead-

ing itemizing the admissions by failure to answer

and deny of the FTiger Line which was either

removed or not entered in the record of the sub-

ject case.

(SS) Followed a course to effectively eliminate

discovery for the benefit of the FTiger Line, who

has much to hide, and which act blends with the

even worse failure/refusal to rule against FTiger

Line for failing to deny each and every averment

and affirmative defense specifically, and many not

at all. If PTO/TTAB would not require a full/

ccmplete/specific answer from FTiger Line required

by the rules naturally it would not force discovery

upon FTiger Line which is almost completely dis-

cretionary.

(TT) Continually applying the rules against

the FTigers Oil even on minor considerations but

always setting aside the rules for the benefit of

the FTiger Line.

(UU) Failing and refusing to apply the Rules

on Defaults and Admissions against the FTiger

Line.

(VV) Failing to rule that when the FTiger

Line does not oppose the Motion for Summary

Judgment of the FTigers Oil that is a type of de-

fault not subject to arbitrary disregard by the PTO/

TTAB.

(WW) Failing to rule that a default by

FTiger Line on a Motion for Summary Judgment

filed by FTigers Oil in regard to ‘Failure of FTiger

Line to deny Averment and Affirmative Defenses

of FTigers Oil constitutes admissions and a triple

default because the FTiger Line had already pre-

viously failed to deny the same material averments

when specified in the Affirmative Defenses and

Counterclaim and Motion to Dismiss of the FTigers

Oil.

(XX) Committing the wrongdoing cited in

question Presented 27 (OO) in the Brief of FTigers

Oil in Appeal 84-602 before CAFC. \

(YY) Committing the wrongdoing cited in

questions Presented, and acts and failures to act of

favoritism, No. 27 (PP to III inclusive) in the

Brief of FTigers Oil in Appeal No. 84-602 before the

CAFC.

(ZZ) Took over one year to send copies of

registrations of FTLine 1,004,930, 969,394 and

999,837 to FTigers Oil, and did so only after Com-

plaint was filed with Inspector General of the De-

partment of Commerce.

(AAA) Never sent pages 1 and 2 of Certified

List until apparently the Clerk of Court of CAFC

intervened, and never sent even page 3 until a pre-

vious reprimand from the CAFC apparently.

(BBB) Typically, in Order dated January 27,

1984 PTO/TTAB directs all its criticism against

FTigers Oil despite fact that: FTiger Line filed

more papers during that period than FTigers Oil.

The Flying Tigers Oil appealed in October, 1983

after the TTAB' had given FTLine three chances

to present Evidence in Chief; and after the FT Line

had consumed its trial period during which it had

completed its evidence with the adoption of its three

registrations and the filing of an illegible, unsigned,

with manuscript entries, self-created document of

unfathomable content or purpose except by a hope-

lessly corrupt viewer. The FTLine’s Counsel hav-

ing made the false statement that the case was

onlyi n the discovery stage when in fact it had

only in the discovery stage when in fact it had

completed its Evidence in Chief, the FTOil’s Coun-

sel had to prepare an Appendix to Reply Brief

containing all the documents on FTiger Line’s

evidence to show that false statement. See Ap-

pendix to Reply Brief in 84-602 in CAFC, also

marked as Appendice MM in this Petition.

—PTO refers to PATENTS AND TRADEMARKS OFFICE:

TTAB refers to TRADEMARK TRIAL AND APPEAL

BOARD: FTLINE refers to THE FLYING TIGER LINE

INC.; FTIGERS OIL OR FTOIL refers to THE FLYING TI-

GERS OIL CO. INC.; CAFC REFERS TO COURT OF AP-

PEALS FOR THE FEDERAL CIRCUIT; APPE. refers to

the APPENDIX; RULES OF PRACTICE refers to the

RULES OF PRACTICE OF THE PATENT AND TRADE-

MARK OFFICE.

The CAFC claims that it has no jurisdiction

over the Appeal 84-602 and in regard to the Peti-

tion for Certiorari/Mandamus/ Prehibition/Deciara-

tory Relief filed by the Flying Tigers Oil Co., the

Flying Tigers International and its International

Commander, Morton F. Meads, the CAFC brushed

it off by joining it with the appeal, more or less

admitting that it would have jurisdiction, but stat-

ing that it is very rare that it issues an extra-

ordnary writ — which is an evasion of the issue of

whether the statute is being violated and whether

it is mandatory and ministerial on the part of the

PTO/TTAB Commissioner, at the stage cited above,

to issue the registration applied for and direct the

out-of-time-opposer to the Trademark Law for his

available recourse, which as stated above is for Peti-

tion for Cancellation of Registration — not Opposi-

tion to Registration, the FTigers Oil having met

all the statutory requirements of the Trademark

Law. The CAFC also states that the extraordinary

writ canot be granted in order to circumvent a trial.

This is diametrically opposite to the legal truth.

it is the illegal trial of Opposition barred by Statute

that is being used to circumvent the specific dic-

tates of the Statute — which are neither amend-

able, suspendable, adjustable by the Commisioner/

PTO/TTAB to allow the giving of due course to

an out of time Opposition without any written

request for extension and which must be filed prior

to expiration of 30 day period from publication.

It is of no consequence what the ‘Trial of Opposi-

tion’ brings forth. It is illegal because of the pro-

visions of the statute, (Trademark Law and Rules

of Practice). If the PTO/TTAB wants to change

i: RAR Sit hascaiti ice mi

the law it cannot do it administratively, nor through

the courts. The only trial that it can hold on the

matter is a Trial for Cancellation of the Registration

— if a Petition for Cancellation is filed by the

FTiger Line. Any Writ of Mandamus/Prohibition

that may be issued by the Supreme Court can

carry the proviso that it is without prejudice to

the filing of a petition for cancellation of the le-

gally required registration of the mark of the Fly-

ing Tigers Oil Co. Inc. if their are justifiable bases

therefor. )

All the violations of the Constitutional Rights

of the FTigers Oil to due process and equal protec-

tion could be referred back to the CAFC for ruling

on the merits, inasmuch as the law and constitu-

tion do not allow for the CAFC to evade its judi-

cial responsibilities in such a cavalier manner as

is shown in the Final Decision in 84-602 which is

Appendice C of this Petition pp. xxiv-xxviii, and

then try to block an Appeal after remanding and

also a rehearing by dismissing appearance of PRO

HAC VICE counsel, while taking no action against

FTiger Line’s counsel on charges of pleading false-

ly that were not denied and which were proven

false by Appendices submitted by FTigers Oil and

never objected to.

In order to be fully informed the CAFC should

have admitted the intervention of the Flying Tigers

International, Robert Zlomke, small stockholder and

secretary of the Flying Tigers Oil Co. and Secre-

tary for the American Pacific of the Flying Tigers

International and Morton F. Meads, International

Commander of that organization of veterans of the

20th Bomber Command, 14th 13th, and 5th Air

Forces of the United States. Intervention is usual-

ly viewed judicially with liberality, the principle

being that in the search for truth and judicial wis-

dom all voices and involved parties should be heard.

This Appeal Petition also involves all the ques-

tions presented to the CAFC and cited in the

Amended Petition of Appeal and the Brief of the

appellant FTigers Oil. The Petitioners herein re-

quest that all of the Briefs, Appendices and Exhibits

submitted in the CAFC be elevated to the Supreme

Court. The International Commander of the Fly-

ing Tigers International, Morton F. Meads, and its

Secretary for the American Pacific, Robert Zlomke,

as veterans of the Armed Forces of the United

States, and the Flying Tigers International being a

veterans organization, request that their participa-

tion as peitioners be accorded any rights or pri-

vileges applicable to veterans in judicial proceed-

ings, and that the CAFC and PTO/TTAB

be instructed to allow their intervention at all times

in the matters subject of this Petition.

The basis for Federal Jurisdiction in the Court

of First Instance, i.e. the Trademark Trial and

Appeal Board, which is equivalent to a Federal Dis-

trict Court, is stated in this Petition under juris-

diction. There is no dispute between the parties,

the PTO/TTAB, the CAFC that there only fede-

ral jurisdiction is involved entirely and from the

outset The provisions of the applicable law are

cited in the Appendix of this Petition, i.e., Appen-

dice ‘L’, pp. lxvii-xcii. The CAFC admits and

states in its fmal Decision, Appendice C of this Pe-

i aailaiineaiaaaailiaal

tition pp. xxiv-xxviii that it has jurisdiction over

the PTO/TTAB but claims that jurisdiction only

applies to final decisions.

REASONS FOR GRANTING THE WRITS

The Supreme Court should grant the Writ of

Certiorari sought, as well as other writs, because im-

portant and special reasons exist, to wit:

(A) The CAFC has so far sanctioned the

departure by the PTO/TTAB from the usual or le-

gal and constitutional course of judicial proceedings

required and controlled by the Constitution, First,

Fifth and Fourteenth Amendments, the Trademark

Law, 15 U. S. Code, and the Federal Rules of

Civil Procedure as to call for the exercise of this

court’s power of supervision; and,

(B) The CAFC has decided federal questions

in a way in conflict with applicable decisions of

the Supreme Court or other Federal Courts of

Appeal, or has refused to decide such questions in

any way whatsoever; and,

services as required by the Constitution, has pass-

ed the judicial buck either to the Supreme Court

or to the PTO/TTAB, and thus has also violated

the principle of equal access to the courts laws

(on the basis that access means that the federal

courts will render judicial services on the merits

once entry is permitted) and the Meads Judicial

Bill of Rights.

(D) The CAFC has degraded Filipino coun-

sel for ‘unconciseness’ and ‘emotionalism’ while to-

lerating proven, and undenied, allegations of un-

truthfulness or misrepresentation by American

counsel which should be reviewed by this court to

determine whether favoritism and discrimination is

involved and the CAFC action justified and proper

considering that the Philippines Supreme Court

allows American counsel admission to the Philip-

pines Bar and Regular Practice before all courts

without examination on the presumption of the

existence of reciprocity; and,

(E) To resolve important, serious and broad

federal questions in a clear and definitive manner

that are at present either cloudy, contradictory

or not yet ruled upon ultimately, or which deserve

a new ruling because of staleness and related con-

siderations, but which should be fully ruled upon

by the Supreme Court and jurisprudence revitalized

at the earliest possible time; and,

(F) To settle once and for all whether the

federal courts are required to rule on the merits

of all cases controversies brought before it involving

violations of constitutional rights and/or statute

law; and

(G) To resolve absolutely whether the All

Writs Act is a dead letter or whether the federal

courts are going to exercise their powers and du-

ties thereunder; and,

(H) ‘To render periodic supervision over the

Federal Office of Patents and Trademark and clean

it up, straighten it out, and instruct it properly and

fully on the rules of trial procedure, due process

and equal protection as related to matter under

the jurisdiction of the PTO. TTAB, which judicial

Se ee

supervision of said federal agency is long overdue

and will last for at least another generation if all

the questions in the above-entitled case are re-

solved by the Supreme Court; and,

(I) To resolve clearly and fully whether the

judicial power to review interlocutory orders pro-

vided by 28 U.S. Code Sec. 1292 (a) (e) App. L of

this Petition, pp. lxii-xcii (on the basis that the

TTAB is equivalent to a district court and that

Mandamus /Prohibition has injunctive character, and

that the instruction of the PTO/TTAB that it

would not entertain any question or objection about

its giving due course to the ‘Opposition’ out-of-

time is injunctive in character) had been rescinded

by the Supreme Court or other federal courts, such

as CAFC, by its own jurisprudence excusing it-

self from resolving interlocutory orders on their

merits on the grounds that interlocutory orders do

not dispose of a case finally or have a dispositive

part, but which reasons contradict the said action

of Congress and the President giving to federal-

courts the power to hear, consider and resolve

matters in interlocutory orders, or acts and failures

to act represented by interlocutory orders, on their

meriis.

These reasons are demonstrated in detail by

the questions presented both in this Petition to

the Supreme Court and in the CAFC, the latter

holding both Appeal 84-602 and a Petition for Cer-

tiorari / Mandamus / Prohibition/Declaratory Relief

that are joined. See also Appendices ‘A’ and ‘B’

of this Petition pp. i-xxiii and xxx the resolution

on the merits of which, in a clear, categorical and

full manner, will accomplish the judicial objectives

suggested in, for and by the aforecited reasons for

granting the writs prayed for.

ARGUMENT

Because of the page limitation of the Rules

of the Supreme Court there is no space for a bona

fide argument. Right to present argument is a

Substantive Right under 28 U. S. Code Sec. 2072,

which a party should not be deprived of.

Nevertheless, a brief memorandum of argument

on several of the most important questions present-

ed can be found in Appendice ‘X’ pp. cxxiii-clxvi of

this Petition. In addition the Argument in the

Typewritten Petition of Robert Zlomke is hereby

adopted and made an integral part of this Petition

by reference.

MANDATORY STATEMENTS

The Petitioner herein hereby certifies that to

his knowledge the United States Court of Appeals

for the Federal Circuit or any other Federal Court

has not certified, pursuant to 28 U.S.C. Sec. 2403

(a), to the Attorney General that any act of Con-

gress has been drawn in question at the time this

Petition was prepared and filed.

SWORN STATEMENT OF MAILING AND

AFFIDAVIT OF SERVICE

These are located at the end of this Petition,

after the Appendix, the last two pages.

ee ee

CONCLUSION

Robert Zlomke is a Petitioner herein because

he has an interest and right to protect as a small

stockholder of the Flying Tigers Oil Co. Inc., and

an officer thereof; and as a member and officer

of the Flying Tigers International and is proceeding

in forma pauperis pursuant to the Motion filed

in this court for leave so to proceed together with

the required affidavit.

The CAFC erred in not giving due course to

the Petition for Certiorari-Mandamus/ Prohibition/

Declaratory Relief (although it joined it with Appeal

No. 84-602 in its Final Decision; and the CAFC

erred in not issuing the extraordinary writs of

mandamus and prohibition to the Commissioner of

Patents and Trademarks (PTO/TTAB) to issue the

registration required by Statute of the mark ‘Fly-

ing Tigers Oil’ or ‘Flying Tigers Oil Co.’ to the Fly-

ing Tigers Oil Company, Inc. and dismiss the Oppo-

sition theretc; and it erred in refusing to order the

termination of the violations of the Constitutional

Rights of the Flying Tigers Oil, and consequently

its stockholders and officers, and the members and

officers of the Flying Tigers International, to due

process and equal protection; and it erred in not

admitting the Flying Tigers International and Ro-

bert Zlomke, Secretary for the American Pacific,

and Morton F. Meads, International Commander, as

Intervenors in Appeal 84-602 (although they were

petitioners in the Petition for Certiorari/Mandamus/

Prohibtion/Declaratory Relief in the CAFC); and

it erred in not correcting and ordering PTO/TTAB

to cease and desist violating the Federal Rules of

Civil Procedure; and it erred in not identifying

these many violations as constituting ‘corruption’

and therefore immediately actionable by any higher

federal court; and it erred in not ordering sum-

marily the cancellation of the registrations 999,837

and 969,394 and 1,004,930 on grounds of perjury

and fraud for the first two, as well as for false de-

signation for the first one cited. which is shown in

the very papers submitted to the PTO by the Fly-

ing Tiger Line Inc. itself; and cancellation of

1,004,930 for being descriptive in character on its

face; and it erred in claiming that it has no super-

visory powers over the PTO/TTAB/Commissioner

when in fact what is sought is judicial review of

their actuations, Constitution violations represented

by Acts and Orders and Notices; and it erred in

forcing the FTOil Co. to suffer and endure the vio-

lations of its Constitutional Rights and those of its

stockholders set forth in the Appeal 84-602; and it

erred in siding with counsel of FTLine against the

counsel of FTigers Oil considering that it is the

counsel of the latter that is protecting and present-

ing the complaints and bad news about the PTO/

TTAB and therefore compelled to exnlain, support,

analyze, detail and show the wrongdoing and viola-

tions of the PTO/TTAB which task inevitably re-

quires time/space/written accounts/emotional strain

or the appearance of emotional strain; and it erred

in forcing the Petitioners, including the undersigned,

in the Petition before the CAFC to go to the Supreme

Court to request the latter to do the work of the

CAFC; and it erred in addressing the questions

presented from the sole point of ‘Appeals of Or-

ders’ of PTO/TTAB rather than from the viola-

tions of the Consitutional Rights through discrimi-

nation which demand the attention of the CAFC

Raa Ds teste ee

and immediate correction and redress; and the Com-

missioner/PTO/TTAB erred in committing all the

acts of omission and commission cited in this Peti-

tion and the Appendices ‘A’ and ‘B’ of this Peti-

tion, including the Orders of TTAB, Appendices

‘F’, ‘G’, and ‘I’ of this Petition, which are repre-

sentative of the illegal and unconstitutional acts

complained of and an extension thereof, and

therefore all said errors should be corrected

by the Supreme Court. The Petitioner Robert

Zlomke, and those privy to him and this Petition

have presented important, novel, unprecedented

considerations, issues and questions involving fraud,

corruption, burden of proof, fair triah due process,

equal protection, judicial anarchy, racial or na-

tionality discrimination in counsel, indirect and/or

subliminal discrimination involving parties and their

types of business and the sanctity and paramountcy

of the Constitution over judicial technicalities and

prerogatives.

Wherefore the Supreme Court should grant

the Writ of Certiorari to the CAFC and the PTO/

TTAB to review their Orders and Decision and acts

of commission and omission, and thereafter grant

the Declaratory Relief requested together with the

applicable Extraordinary Writs of Mandamus and

Prohibition, and disbar Blakely, Sokoloff, Zafman

and Hyman f+ making untruthful statements to

a federal court.

Dated: 3 January 1985.

Respectfully submitted,

ROBER :

Petitioner (In Forma Pauperis) PRO SE

Small Stockholder and Officer of the Flying Tigers

Oil Co., Inc.

Member and Officer of the Flying Tigers

International

P. O. Box 1094, Manila, Philippines

—

all

MORTON F. MEADS

Petitioner (PRO SE) (For and In His Own Behalf)

Member and Officer of the Flying Tigers

International

P. O. Box 1094 Manila, Plflippines

A.C. S

In-hou

Attorney for Flying Tigers Oil Co., Inc.

1050 Concepcion St., Ermita, Manila, Philippines

Voce ta. Cpa Bags

VICENTE L. AANTIAGO

In-house Counsel

Attorney for Flying Tigers Oil Co., Inc.

602 Roman Santos Bldg. Plaza Goiti

Manila, Philippines

And Attorney For The Flying Tigers International

;

‘a

APPENDIX i

Appendice ‘A’

QUESTIONS PRESENTED IN DETAIL

IN SUPREME COURT

1. Does the Supreme Court have jurisdiction over

either an Appeal from or Petition for Writ of Certiorari

to the COURT OF APPEALS FOR THE FEDERAL

CIRCUIT relative to the latter’s Final Decision dated

October 5, 1984?

2. Do the Petitioners who are Veterans or a Vete-

rang Organization have the right to avail of the privi-

leges provided by the law and the Rules of the Supreme

Court for veterans to petition this court and maintain

a position in this case and controversy?

38. Is corruption in e Federal Agency or tribunal

(represented by repeated violations cf the constitutional

rights of Flying Tigers Oil Company and the Flying

Tigers Interrational and its International Commander

Morton F. Meads, and the members of the Flying Tigers

International inasmuch as they have given to the Flying

Tigers Oil Company the right to use the name and

mark ‘FLYING TIGERS’) and violations of the Rules

of Federal Civil Procedure) immediately reviewable by

appeal or certiorari by either the CAFC or the Supreme

Court, or the Supreme Court on Writ of Certiorari to

the CAFC for the latter’s failure/refusal to use its ju-

dicial powers to put a stop to that corruption?

4. Does the law require Flying Tigers Oil Co. (and

consequently Flying Tigers Internationa] and its officers

and members) a party to suffer the usurpation of its

name @nd mark, owned in common law. by another party

Who is using the name and mark ‘FLYING TIGERS’

as a false designation. inasmuch as that party, the

Flying Tiger Line Inc. is not the ‘Flying Tigers’, never

were the “Flying Tigers’ and never will be the ‘Flying

ii Appendice ‘A’

Tigers’ through various proceedings when the principle

of ‘false designation’ is subject to immediate termina-

tion through Preliminary Injunction, Mandamus/Prohi-

bition/Declaratory Relief?

5. Is the CAFC and/or the Supreme Court obligated

to terminate the illegal use of the name and mark ‘FLY-

ING TIGERS’ and ‘tiger head logo’ by the Flying Tiger

Line Inc. when the documents filed by it in the Patents

and Trademark Office in various applications and pro-

ceedings show that it did not use thet name and mark

and logo either before the Flying Tigers Oil Company

or the Flying Tigers International, or before it filed

applications for registration of that mark and logo in

the PTO; or is that party, Flying Tiger Line Inc. bound

by its own contradictory statements and admissions

against self and interest in the very records supplied

by the ‘FT Line to the PTO; and the PTO/TTAB and

CAFC bound to take summary action to terminate/can-

cel registration of FT Line after those admissions,

contradictions and perjury are brought to the attention

of the PTO/TTAB and the CAFC?

6. Is the CAFC and the Supreme Court hoiding

jurisdiction over the procedure of determining of what a

‘fact? is; and how a particular consideration is deter-

mined to be a ‘fact’ or ‘nonfact’; or the failure/refu-

sal of the PTO/TTAB to require the FTLine Inc. to

answer specifically the allegations of fact of the FTiger

Oil Co.; and the illegal and unconstitutional procedure

of the PTO/TTAB of applying two different standards

of factual determination to the parties for the illegal

benefit of the FTLine and the illegal prejudice of the

F Tigers Oil, and other entities effected?

7. Does the CAFC have the right to refuse to rule

on the merits of allegations of violations of constitu-

tional rights in federal agencies brought to its attention

on appeal or by certiorari?

Bate

Appendice ‘A’ iii

8. Does the Constitution of the United States and

the Judicial Powers under Article III make it manda-

tory upon the CAFC and the Supreme Court to rule on

the merits of all charges of violations of constitutional

rights to due process and equal protection brought be-.

fore it on appeal or Certiorari/Mandamus/ Prohibition

and Declaratory Relief?

9. Is there such a thing as judicial buckpassing;

and if there is, is it time for the Supreme Court to

declare by various means a Judicial Bill of Rights in-

cluding a requirement that all courts of appeals are

required to rule on the merits of all charges of viola-

tions of constitutional rights to due process and equal

protection and of violations of the Rules of Federal

Civil and Criminal Procedure; and including a condition

that no matter may be brought to it until it has been

ruled upon on its merits by a Federal Court of Appeals

or State Supreme Court. and that those courts are le-

gally and constitutionally required to rule on the me

rits of all constitutional, legal questions brought be-

fore it by any means?

10. The CAFC has implied in its final decision,

(App. C, pp. xxiv-xxvi that the subject matter of Appeal

No. 84-602 may still be brought to it sometime in the

future: Is there any reason to expect that the charges

of violations of the constitutional rights to due process

and equal protection by the PTO/TTAB and FTLine

will be of any more concern to the CAFC the second

time than it has been the first time in 84-602 when

the CAFC refused to entertain them. consider them or

rule upon them in any way whatsoever?

11. Must the FTigers Oil and others connected with

it suffer the violation of its constitutional rights and

incur the injuries, many irreparable, when the CAFC

has the jurisdiction, the judicial powers, either appel-

late or original, to put a stop to those violations?

iv Appendice ‘A’

12. Has Flying Tigers Oil, in alleging that the

TRADEMARK Law, as applied by the Patents and

Trademark Office/Trademark Trial and Appeal Board,

violated the Fourteenth Amendment and Trademark Law

in requesting appellate, mandamus/prohibition, and dec-

laratory relief to compel, the PTO/TTAB to apply, en-

force and execute the provisions of the Trademark

Law; and in seeking relief designed to redress the dep-

rivation of its right not to be denied due process and

equal protection of the laws, without infringing upon

any right of private entities to take recourse to filing

Complaint for Cancellation of Trademark (a) stated a

cause of action within the appellate jurisdiction of the

CAFC and originel jurisdiction for issuance of extra-

ordinary writs 28 U.S.C. § 1651, All Writs ACT, and under

15 US.C. § 1071, the 1st and 14th Amendments; and 28

U.S.C. § 1343, 2281 and. hence, within the jurisdiction of

the CAFC and the Supreme Court on direct appeal

under 28 U.S.C. § 1253 and 1253(b) presented and main-

tained @ case or controversy subject to determination by

the exercise of judicial power under Article III of the

United States Constitution?

13. Does the PTO/TTAB/CAFC scheme of litigation

control as established by the acts/orders of the PTO/

TTAB and final decision of the CAFC, (App. C, pp. xxiv-

xxvi) insofar as it involves the refusal to issue a registra-

tion under application 86,288 to the FTigers Oil, whose ap-

plication was completed, approved and published and un-

opposed for thirty days and more without any written

request for extension of time to file an Opposition there-

to, and which Registration can still be made subject

to filing of Petition for Cancellation of registration

at any time by any party claiming to be damaged

thereby (which registration places the ‘burden of

proof’ upon any Petitioner for Cancellation, and which

‘burden of proof’ is a property right protected by the

Constitution of the United States and a part of due

Appendice ‘A’

process and equal protection) constitute Corruption, and/

or Violations of the Constitutional Rights of the F Tigers

Oil, and other affected thereby, particularly under the

Fourteenth Amendment?

14. Did the PTO/TFAB/CAFC, in giving due course

to Opposition No. 63,986 filed out of time and barred

by the Trademark Law discriminate against the FTigers

Oil in violation of the Law and the U.S. Constitution

and fashion a procedure and inevitably a conclusion con-

trary to facts already known and a matter of record

and lege! principles already well established under the

process and equal protection of the laws provisions of

the United States Constitution?

15. Has an action for redress of the deprivation of

the constitutional right to equal protection of the laws.

brought pursuant to 42 U.S.C. § 1983, been precluded or

limited in anyway by enactment of the Civil Rights

Act of 1964 which provides for extraordinary writ re-

lief against discrimination by government action?

16. Is the CAFC legally obligated to order the ter-

mination of violations of the Constitutional Rights of

one or mere of the petitioners herein after they are

brought to the attention of the CAFC either by ap-

peal or Petition for Certiorari/Mandamus, Prohibition/

Declaratory Relief?

17. Is the CAFC obligated to order the termination

cf violations of the Rules of Federal Civil Procedure

by the PTO/TTAB when judicially presented to it ?

18. Is the CAFC obligated to rule on the merits of

all the violations cf Constitutional rights to due pro-

cess and equal protection presented to it by the FTOil

Co. and which are embodied in orders/Acts and failures

to act of the PTO/TTAB?

vi Appendice ‘A’

19. Does the CAFC have jurisdiction over the Ap-

peal in 84-602 and the Petition for Certiorari/Manda-

mus, Prohibition/Declaratory Relief, not docketed but

cited in the final decision of CAFC dated Oct. 5, 1984

in 84-602, and the obligation to rule on the merits of

all the questions and issues presented therein?

20. Is the PTO/TTAB obligated by Statute, Trade-

mark Law, to issue Registration to FTOil for its mark

Flying Tigers Oil or Flying Tigers Oil Co. under com-

pleted and published application 86.288 when no oppo-

sition was filed within 30 day statutory period and no

written request for extension of time was filed by the

Flying Tiger Line or any other entity?

21 Is the CAFC or the Supreme Court of the United

States obligated by law and the Constitution to issue a

writ of Mandamus to PTO/TTAB to issue registration

based upon the Statutory specifications in the Trade-

mark Law?

22. Is ‘Burden of Proof’ under the Trademark Law

and the FRCivPro. a Property Right protected by the

Constitution for the party not having that burden?

23. Is the noncompletion cf the trial in the TTAB

grounds for the CAIFC to refuse to use its judicial po-

wers to terminate violations of the Constitution or

rights of Flying Tigers Oil, and others effected by that

refusal, to due process and equal protection before and

during that trial?

24. Is the completion of the evidence of the FTLine

in the TTAB a sufficiently advanced stage for the FTi-

gers Oil Co. to bring all violations of the Rules of

Federal Civil Procedure and of the Constitutional Rights

to due process and equal protection of the FTigers Oil,

after the latter has already registered such complaints

with the PTO/TTAB, to the judicial attention of the

CAFC for redress and correction?

Appendice ‘A’ vii

25. Does the FTO/TTAB have the legal right to

eliminate a pleading of the FTigers Oil itemizing the

allegations of fact that the FTLine has failed and re-

fused to answer in anyway from the record of Case

No. 63.986 and from the Certified List sent to the

CAFC thus falsifying the record and giving illegal be-

nefit to the FTLine and illegal prejudice to the FTOil?

26. Does No. 24 above create obligations for the

CAFC to resolve the issues and questions brought be-

fore it in Appeal No. 84-602 end Petition for Certio-

rari/Mandamus, Prohibition/Declaratory Relief and ter-

minate the violations cited therein?

27. Can the CAFC legally ignore over 30 primary

and 100 secondary issues/questions brought before it

on appeal 84-602 with the claim that it does not have

supervisory powers over the PTO’TTAB, when it is

manifest that what is being asked for is a judicial] review

and action?

28. Does the CAFC have the power to restrict the

number of pages of the Brief of FTigers Oil so that

either the “Questions Presented” or the “Argument”

must be eliminated and/or does that restricticn violate

28 U.S.C. § 2072 guaranteeing that no substantial right

of any party can be prejudiced by the internal operating

rules of a court?

29. Can the Judges in the CAFC legally sign a

Decision while en undisclosed person or judge therein

writes the decision?

30. Can the CAFC legally prejudice or disparage

the counsel of a party for being ‘wordy’ or ‘unconcise’

and ‘emotional’ when that party is the one afflicted by

multivarious wrongdoings of the opposing party and its

counsels (which perforce it must state and argue) and

when the First Party and its counsel have itemized par-

ticular false statements of opposing american counsel?

viii Appendice ‘A’

31. Can the CAFC legally evade its legal obligations

to apply its constitutional judicial powers to order ter-

mination of-violations of the constitutional rights to due

process and equal protection and violations of the Rules

of Fed. Civ. Procedure on the claim that ORDERS ap-

pealed to it and containing some of those violations, are

interlocutory or that such orders do not dispose of the

case completely and finally?

32. Can the CAFC legally make rules and legally

enforce those rules which were never set for hearing

and the reception of opposition thereto?

33. Is the CAFC legaily cbligated to order the

PTO/TTAB to issue Summary Judgment against FTLine

when the latter did not OPPOSE the Motion for Sum-

mary Judgment of the FTigers Oil in the PTO/TTAB,

and did not answer all the affirmative defenses and al-

legations of fact of the FTigers Oil, which failure con-

stitutes admissions?

34. Can the CAFC legally refuse a Writ of Man-

gamus/Prohibition for issuance of Registration of a

Trademark on a claim that the trial is not completed

when the basis for the WRIT is the failure/refusal of

FTO/TTAB to perform a ministerial function mandated

by the Statute (Trademark Law), which function does

not allow for delay or a proceeding to circumvent the

mandatory requirement of the Stature?

35. Will the CAFC give any more consideration and

appreciation to the claim of mandatory statutory ob-

ligation of the PTO/TTAB to issue registration to

FTigers Oi! on later appeal after completion of trial

than it has no current appeal No. 84-602 when nothing

ebout such obligation of PTO/TTAB and legal right of

the FTigers Oil will change between now and any later

date, the law and the facts in regard thereto already

being in existence and incapable of being changed?

Appendice ‘A’ ix

36. Is not the CAFC legally and morally obligated

to issue the Writ of Mandamus/Prohibition immediately

in the interest of judicial economy and enforcement of

the Statute specifications and Constitutional require-

ments to equal protection of the law?

37. Is not the CAFC denial of the Writ Now, when

plea is based on Statute, an actual permanent denial

and the inference by the CAFC in its final decision that

it can consider it later on appeal nothing but a delusion

and deception?

38. Is the claim of the CAFC in its final decision

dated October 5, 1984 stating that a Petition for Man-

damus/Prohibition based upon Statute is a circum-

vention of appeal after trial a correct legal analysis

or is the law on Extraordinary Writs enacted precisely

for the purpose of enforcing mandatory and ministerial

functions of Governmert Agencies and Officials and

thus the request for mandamus/prohibition is not a

circumvention of anything but the enforcement of a le-

gal and constitutionel right that eliminates unnecessary

and costly red tape and illegal proceedings?

39. Is the question here: Right of CAIFIC to re-

view mandamus/prohibition issue on appeal of final deci-

sion or its legal/constitutional obligation tc rule on

Question of law (enforcement of Trademark Law) intro-

duced both by appeal and Petition for Mandamus/Pro-

hibition/Declaratory Relief by the Flying Tigers Oil

and by Flying Tigers International et al, in the Petition

at this time. and which is now before the Supreme

Court on the same legal and constitutional basis?

40. The CAFC states that it has no jurisdiction

over appeal 84-602 under 15 U.S.C. § 1071 (a) (1):

Is that the only Jurisdiction of the CAFC Subject of

Appeal No. 84-602 for Violation of Legal and Constitu-

tional Rights to due process and equal protection?

x Appendice ‘A

41. Is the Order/Act of PTO/TTAB giving due

course to an Opposition 63,986 despite its being barred

by Statute for being out of time, and there being no

written request for extension of time, a final decision

or act to appeal to the CAFC before completion of

trial of that Opposition on its merits, which has nothing

to do with the Legal Question of it being barred by

Statute for being out of time, or made subject of a Peti.

tion for Mandamus/Prohibition/Declaratory Relief?

42. Is the CAFC, descendent of the Court of Pa

tent and Customs Appeals, involved in a@ “Good Ol

Buddy System” with that agency and its officials that

makes the CAFC a hostile environment to bring charge:

to of corruption in the PTO/TTAB, and therefore con

genitally opposed to any claims of violations of consti.

tutional rights to due process and equal protection o!

the law by the PTO/TTAB?

43. Is the counsel who brings such ‘bad news

charges before the CAFC classifiable as ‘unknowing’ 0:

the customs, precedent and standards of the CAFC anc

therefore inadmissible as PRO HAC VICE counsei?

44. Is the CAFC obligated by law to rule on th:

merits of all the Questions of Law presented to it il

both Appeal 84-602 and Petition for Certiorari/Manda

mus/Prohibition/Declaratory Relief (which it refused +t

give due course to but mentioned in its final decisior

(App. C, pp. xxiv-xxvi) that the opposition 63.986 wa

filed out of time and is therefore barred by Statute 1

U.S.C. § 1063 cited in that appeal and Petition?

45. Is the Supreme Court now obligated by lav

and the U.S. Constitution to make such ruling on th

merits of the issues cited above; and obligated to issu

the Writ of Mandamus/Prohibition cited in those issues

and cancel the registrations 999,837; 969 394

of the FTLine pursuant to the Petition of the FTiger

Appendice ‘A’ xi

Oil for Cancellation thereof for being cbtained by mis-

representation, false pretenses, fraud, perjury; be-

cause the mark ‘FLYING TIGERS’ is a false designa-

tion for the FTLine, which identity belongs to other

people, thus deceiving the public?

46. Was it reasonable and fair for the CAFC to

deny the Intervention in Appeal No. 84-602 of the FLY-

ING TIGERS INTERNATIONAL and its International

Commander, Morton F. Meads, if it was ever interested

in rendering judicial service in this matter?

47. Can the PTO/TTAB legally, pursuant to a mock

motion for Summary Judgment, filed for trading mate-

rial in the denial of the Motion to Dismiss of the FTigers

Oil, order the inclusion of an issue for the FTigers Oil

to prove, when that issue/matter was never raised by

the FTiger Line in its Opposition (already filed out of

time and therefore barred by Statute)?

48. Can the PTO/TTAB refuse to send copies of

its orders to the FTigers Oil even after formal request,

despite the fact that the FTigers Oil is a party to the

_case wherein the order was issued, without violating

the Constitutional rights of the FTigers Oil to due

preeess and equal protection?

49. Is it moral, legal and constitutional for the

PTO/TTAB to commit all the wrong doings and viocla-

tions cited in the Appeal 84-602 and herein petitoners’

petition for Mandamus/Prohibition/Declaratory relief in

the CAFC and in this Petition, and for the CAFC

and the Supreme Court to refuse to grant redress when

these disgusting acts/behavior (some in the form of

orders or nctices or otherwise) are brought to the judi-

cial attention of said federal courts?

50. Does the Flying Tiger Line, having already

presented its evidence (consisting only of its registrations

xii Appendice A’

and an illegible document that is not decipherable) in

the TTAB (over the repeated objections of the FTigers

Oil because its opposition was filed out of time and thus

barred by Statute) have any legal or procedural basis

for objecting to the raising of these matters to the

CAFC when all its evidence was also presented to the

CAFC by the Appendix of the FTigers Oil?

51. Federal Case law holds that concealment of the

record or of a court document denies a party due

process: Does this apply to the PIO/TTAB’s failure/

refusal to enter a pleading in the Certified List, thus

indicating that they have concealed this document, the

Pleading of the FTigers listing specifically the aver-

ments that the FTiger Line has failed to answer either

at all or in any meaningful way; and the refusal to

inform (FTigers Oil whether FTiger Line filed any de-

position. or took the testimony of Carl Asmus as pre-

vicusly announced; and failed to furnish the FTigers

Oil cf the Order dated December 22, 1982; and refused

to send copies thereof to the FTigers Oil?

52. The Rules of Practice require that an Opposi-

tion have all its exhibits attached thereto: Does this

mean then that the Opposition in 63.986 is null and void

for failure to so attach anything thereto. and/or that

having failed to so attach, they cannot later alter this

condition by filing exhibits not attached to the Opposi-

tion, thus violating the ‘TIME LIMIT’ for fil'ng com-

plete Oppositions, and creating surprise during a trial?

53. Can the PTO/TTAB coach and teach and en-

courage the FTiger Line in the trial without violating

the right of the FTigers Oil Co. to due process and

equal protection; which could cease to exist once im-

partiality is none existent?

54. FTigers Line’s verifications are defective and

not in conformity with requirements of law; Does a de-

fective ‘verification’ for an Opposition. and Applications

and Section 8 filings nullify those proceedings?

Appendice ‘A’ xili

55. Some of the violations of due process and equal

protection and/or the Fed. Rules of Civ./Procedure,

and Trademark Rules of Practice and/or the Trademark

Law are below: Can they be committed by the PTO/

TTAB/Commissioner with impunity and without imme-

diate review and redress?

(A) Giving due course to an Opposition filed out

of time in violation of Statute (not subject to exten-

sion as a Court has discretion to extend without a re-

quest) which prescribes exactly 30 days from date

of publication unless A WRITTEN REQUEST FOR EX-

TENSION OF TIME IS FILED. None was filed.

(PR) The PTO acting motu propio for the bene-

fit of the FTiger Line even though the latter made no

written request for extension of time.

Oil for its mark already processed, appreved and pub-

lished, with the thirty days for filing opposition al-

ready expired.

(D) Refusing to correct its mistake/wrongdoing/

violation even after being informed by Petitioner FTigers

Oil?

(E) Refusing to admit a Supplemental Answer

from the FTigers Oil even while allowing the opposition

out of time, the latter not being discretionary on the

part of the PTO/TTAB.

(F) Allowing the FTigers Line to file a dummy

Motion for Summary Judgment for the purpose of raising

additional issues not included in the Opposition, and

then in an Order directing that the FTigers Oil must

prove those issues/matters even though they were never

included in the Opposition/Complaint — and thus legally

barred from the case, which was already filed out of

time.

Xiv Appendice ‘A’

(G) Note the violation of equal protection and due

process: TTAB’s refusal of supplemental answer, but

allowing FTigers Line to introduce issues by a Sham

motion that were never included in the Opposition, but

included in an order.

(H) Refusing to require FTiger Line to answer

each and every allegation in the affirmative defenses

and counterclaim of FTigers Oil, and thus allowing it

to plead on a differént standard than is applied against

the FTigers Oil; and refusing to rule and act in ac-

cordance with the law specifying that failure to answer

or to answer specifically constitutes an admission.

(I) Failing and refusing to apply those admissions

against the FTiger Line respondent herein.

(J) Failing and refusing to acknowledge that said

failure to answer constituting admissions amount to

grounds for dismissal of the Opposition on the merits,

and amount to admissions that the Opposition is per-

jurious and the applications and affidavits filed by FTi-

ger Line are false.

(K) Removing or not entering in the record the

pleading of the FTigers Oil itemizing in detail each and

every allegation that the FTiger Line failed/refused to

answer (which pleading pinpointed unanswered allega-

tions and cornered the PTO/TTAB in its consistent

illegally favorable acts/crders on behalf of the FTiger

Line), which failure to enter pleading of FTigers Oil,

or the removal thereof from the record, was discover-

ed by the FTigers Oil only from the Certified List

finally obtained from the CAFC in Appeal No. 84-602,

and which was obviously removed or not entered pre-

cisely to make the PTO/TTAB look good on its illegal

allowance of FTiger Line to plead a case without ans-

wering all the allegations/affirmative defenses of the

FTigers Oil, which omission is an act of falsification

of the record and fraud for the benefit of FTiger Line.

Appendice ‘A’ xv

(L) Untruthfully telling the FTigers Oil that the

Official Gazette was months behind in publication and

thus an extension is allowable, when in fact upon veri-

fication with the Government Printing Office there was

no such later publication for months pricr to actual pub-

lication of November 18, 1980 fcr the mark of the

FTigers Oil, except for one day.

(M) Making amendments or adjustments in Trade-

mark law or Rules of Practice when the Statute specifi-

cally states that no amendment can be made that causes

, damage to anyone in other words adjustments can be

made providing that there is no objection).

(N) Denying Motion for Summary Judgment of

FTigers Oil even though FTiger Line never filed any

opposition thereto; nor separately or in conjunction

therewith never answered all the allegations and affir-

mative defenses of the FTigers Oil (which was not

done because to do so under oath falsely would lead to

a case or cases for perjury. and if they told the truth

FTiger Line would be admitting that it has no basis

for opposition and no basis for their applications to

use the name of the FTigers Oil Company and its ‘tiger

head logo’.).

(O) Issuing an order dated December 22. 1982 and

never sending a copy to the FTigers Oil (which was

learned only in 1984 when a copy of the certified list

was sent to the FTigers Oil by the CAFC showing that

order) thus prejudicing the FTigers oil in the prosecu-

tion of its Petition to Cancel registrations of the FTigers

Line.

(P) Refusing to send FTigers Oil copy of said

order even after formal request has been made.

(Q) Sending another order to the address of the

FTiger Line instead of the address of the FTigers Oil

Xvi Appendice ‘A’

thus preventing FTigers Oil from knowing what is trans-

piring and- what status the PTO/TTAB has given to the

case/controversy.

_(R)'' Giving to FTiger Line four additional chances

to present evidence since the order of December 22,

1982 (serve sent to FTigers Oil), and three additional

chances after the FTiger Line completed its evidence

without any witnesses, and only one illegible undevipher-

able document unidentified and unsigned, with three re-

gistrations that are subject to cance!lation proceedings

on grounds of perjury, fraud for two and descriptive charac-

ter for one, whereas the FTigers Oil would have only one

chance — although that is not necessary because the

opposition proceedings are illegal in the first place be-

cause of having been filed out of time without any

written request for extension of time, (which nonexist-

ent written request by law must be filed prior to the

expiration of the 30-day period).

(S) Denying various things to the FTigers Oil but

quickly and readily granting approximately the same

things to FTiger Line, such as copies. and answers

to queries.

(T) Failing/Refusing to answer repeated requests

of FTigers Oil as to whether any deposition has been

filed by the FTiger Line.

(U) Continuously and consistently demonstrating

discrimination against oil and in favor of airline, with

all those connote and signify subliminally.

(V) Failing/Refusing to Require (FTiger Line to

answer allegations of false designation in use of mark

‘FLYING TIGERS’ (owned by the FTigers International

and Flying Tigers Oil and Flying Tigers Party in com-

mon law) by the FTiger Line.

Appendice ‘A’ xvii

(W) Violating the VContidentiality of the Applica-

tion of FTigers Oil prior to registration by showing and

furnishing copy thereof to FTiger Line, (which prior

to registration is prohibited by the Trademark Law).

(X) Failure to rule and allow Motion for Leave

of Court to amend Answer with Affirmative Defenses

and Counterclaim of Petition for Cancellation.

(Y) Failure to disqualify Fruge, Rice,-Quegg. Sims,

Hutt, Chapman, Mossinghoff after charges of favoritism

were failed.

(Z) Allowing notarization of affidavit for FTiger

Line in proceedings in the PTO when the name of that _

notary is essentially the same as a member of the law

firm of FTiger Line, Lyon and Lyon, which is prohibited

by the Federal Rules of Civil Procedure.

(AA) Allowing defective oath, contrary to the re-

quirements of the Trademark Rules of Practice, fer

FTiger Line in proceedings before PTO TTAB.

(BB) Failing to publish amendments of rules or

proposed amendment of rules in the Official Gazette and

Federal Register, beneficial to the FTiger Line and pre-

judicial to herein Petitioners.

(CC) Giving of legal advice openly to FTiger

Line and its counsel and telling them how to prevail

over the FTigers Oil.

(DD) Allowing private contact with key persons

in the PTO/TTAB in order to arrange favorable treat-

ment for the FTiger Line.

(EE) Failing to inform FTigers Oil cf its decision ’

action on its Motion for Leave of Court to amend its

Answer with Counterclaim of cancellation of registra-

tions of FTiger Line.

XViii Appendice ‘A’

(FF) Failing to inform FTigers Oil of rulings on

the filing of various papers by the FTigers Oil.

(GG) Failing to report to the FBI the keeping

of papers by the FTiger Line that belong to the FTigers

Oil and which were sent to the address of FTiger Line.

(HH) Refusal to resolve FTigers Oil’s motion for

reconsideration of order dated July 15, 1982 denying

motion to dismiss.

(II) Answering inquiries and requests of FTiger

Line always and quickly and formally but not answer-

ing those of FTigers Oil.

(JJ) failure to resolve Motion for Reconsidera-

tion of FTigers Oil of order dated July 15, 1982 on

FTiger Line’s simulated mock motion for Summary judg-

ment on the two matters introduced thereby but not in

issue.

(KK) Transforming and considering FTigers Oil’s

Motion for Summary Judgment as a Motion for Judgment

on the Pleadings when in fact said motion did not ask

for resolution of all the issues in the case before PTO/

TTAB illegally initiated out of time.

(LL) Statine that the objection of FTigers Oil to

some illegible and undecipherable document without cer-

tification was made too late, but which is discretionary

under the rules, but allowed FTiger Line to file Op-

position/complaint very much out of time, without any

written request for extension of time or e Certificate

of Mailing, which is not discretionary and fixed by Sta-

tute.

(MM) Issued an ORDER in letter form that no

order should be issued prejudicial to the FTiger Line

during an investigation for exclusion of FTiger Line’s

Appendice ‘A’ xix

counsel for misrepresentation and fraud, but without

equal treatment that no order can be issued against the

FTigers Oil during the same period.

(NN) Whitewashed charge of fraud withcut seeking

particulars from FTigers Oil and its counsel, and with-

out asking FTigers Oi) for any cvidence that it has

to prove the charge.

(OO) Placing in ORDER the misrepresentation of

the FTiger Line and its counsel, which falsehood is

evident from the very document involved, which is

in the possession of the PTO/TTAB, thus showing out-

right dishonesty, but total subordination to the wishes

of the FTiger Line and its counsel.

(PP) Failing and refusing to correct said false

statement in said order after it was celled to the atten-

tion of PTO/TTAB — thus constituting willful falsifi-

cation of record against FTigers Oil and in favor of

FTiger Line and its counsels.

(QQ) Pretended thet the telephone company gave

it the address of the FTigers Oil in Phoenix, Arizona,

when in fact it was the address of the FTigcr Line,

which type ‘mistake’ is inconceivable, unless part of a

plan in the PTO/TTAB.

(RR) Failed/Refused to send a ccmplete copy cf

the Certified List to the FTigers Oil after appeal; and

after repeated complaints sent on!y page 3 thereof con-

sisting of only three items (which reluctance is un-

derstandable since it reveals orders not sent to F Tigers

Oil and pleadings of FTigers Oil never resolved, and

the material pleading itemizing the admissions by failure

to answer of the FTiger Line which was either removed

or not entered in the record of the subject case.

(SS) Followed a course to effectively eliminate dis-

covery for the benefit of the FTiger Line, who has

much to hide.

xx Appendice ‘A’

(TT) Continually applying the rules against the

FTigers Oil even on minor considerations but always

setting aside and disregarding the rules for the benefit

of the FTiger Line.

(UU) Failing and refusing to apply the rules on

defaults and admission against the FTiger Line.

(VV) Failing to rule that when the FTiger Line

does not oppose the Motion for Summary Judgment of

the FTigers Oil that is a type of default not subject

to arbitrary disregard by the PTO/TTAB.

(WW) Failing to rule that a default by FTiger Line

on a Motion for Summary Judgment filed by FTigers

Oil in regard to ‘failure of FTiger Line to deny a-

verments of FTigers Oil’ constitutes admissions and @

triple default because the FTiger Line had already pre-

viously failed to deny the same materia] averments when

specified in the affirmative defenses and Counterclaim

and Motion to Dismiss of the FTigers Oil.

(XX) Committing the wrongdoing cited in Ques-

tions 'Presented 27 (00) in the Brief of FTigers Oil in

its Brief in Appeal 84-602 before CAFC.

(YY) (Committing the wrongdoing and acts and

failures to act of favoritism cited in Questions Present-

ed No. 27 (PP. to III inclusive) in the Brief of FTigers

Oil in Appeal No. 84-602 before the CAFC.

(ZZ) Took over one year to send copies of Re-

gistrations of Appellee 1,004,930, and 969.394 and

999,837 to herein Appellant;

(AAA) never sent Appellant copy of ORDER dated

December 22, 1982, C.L. No. 31 initially; and never sent

copy when specifically requested after Appellant learn-

ed about such an ORDER from Page 2 of the Certi-

fied List received in January, 1984 (apparently after

CAFC or its clerk took some action) ;

‘

Appendice ‘A’ xxi

(BBB) never sent copy of ORDER CL No. 31 after

request for copy by Applicant when latter read of ‘re-

ference to previous settings of trial dates of which Ap-

pellant had no knowledge;

(CCC) never sent pages 1 and 2 of Certified List

until apparently somebody intervened;

(DDD) never forwarded at expense of Appellant

after at least two requests certified copies or plain

copies of complete file wrapper of Applicant-Appellant

and 3 Registrations cited No. 1 above;

(EEE) asked for information two times on filing

of any deposition by Appellee yet never replied;

(FFF) never included Appellant’s REPLY TO OP-

POSITION TO MOTION FOR RECONSIDERATION in

Certified list, and a Part of Appellant’s MOTION FOR

Summary Judgment by reference and listing all the pa-

ragraphs or averments not answered or denied by OP-

POSER-APPELLEE;

(GGG) sent papers belonging to Appellant to ad-

dress of Appellee;

(HHH) continually complains against Appellant

about mere metters of form but fails to rule against

Appellee at any time on any thing even major violations

of the rules and even when it concedes a major mo-

tion by failure to oppose;

(III) typically, in ORDER dated January 27.

1984 OF F/PAT/TTAB directs all its criticism against An-

pellant despite fact that Appellee has filed more papers

during that period than Appellant.

56. How many times can (PTO/TTAB deny or re-

fuse requests by one or more of the herein Petitioners

for documents in and information on the trial of 63,986

xxii Appendice ‘A’

before the constitutional rights to due process and equal

protection of one or more of petitioners is considered

violated by the United States Supreme Court, particular-

ly said rights of the Flying Tigers Oil Company, Inc.

a party to said case?

57. Statute law and case law prohibit registration

as trademark descriptive words or phrases such as

‘Long Island Railroad’, and ‘Steel Window Mfg.’ thus

the registration cf the wcerds ‘Flying Tiger Line’ is

illegal: Is the influence exerted by the FTiger Line

on the PTO/TTAB and later the CAFC to first register

an obviously prohibited descritive phrase and then to

refuse to consider and resolve even one single issue

in appeal No. 84-602 and the petition for Certiorari/

Mandamus, Prohibition/Declaratory Relief including the

immediate cancellation of registration of said descriptive

phrase legal influence legally and constitutionally ap-

plied?

58. Is it equal protection for the PTO/TTAB to

allow an opposition to be given due course after filing

out of time and barred by statute and then declare by

order that FTigers Oil’s Supplemental Answer (Peti-

tioner herein being forced to answer) is ruled out as

well as its affirmative defenses as part of the plead'ngs?

59. Is it equal protection for the PTO/TTAB to

rule out by order (see appendice ‘G’, pp. xxxiv-xxxvili) the

supplemental answer on grounds that there was no for-

mal motion but having already given due course to the

opposition filed out of time and barred by statute even

though FTiger Line never even filed a request for ex-

tension of time, which is a condition precedent of the

law before an extension can be allowed and which must

be filed before the 30-day period from publication ex-

pires?

60. Is it equal pretection for the PTO/TTAB to

refuse to rule on the motion for leave to file supple-

mental answer after it is filed?

Appendice ‘A’ xxiii

61. Is it equal protection for the PTO/TTAB to

rule out as pleading the supplemental answer and ex-

hibits and affirmative defenses while in effect allowing

FTiger Line to amend its opposition (already filed

out of time and illegally given due course) by filing a

Sham Motion for Summary Judgment introducing two

new issues therein not stated in the opposition (see

order appendice “G’ pp. xxxiv-xxxviii) ?

62. Is it equal protection for the PTO/TTAB to

falsify its orders, including the simulation of a falsifica-

tion to disparage FTigers -Oil when it has the original

records on the application end is charged with full

knowledge that no such falsification exists as stated

falsely by American Counsel for FTiger Line? (See

Motion for Reconsideration in Appendix in 84-602 in

CAFC).

63. Is it equal protection to give FTiger Line three

chances to present evidence in chief and the FTigers

Oil only one chance?

64. Is it equal protection for the PTO/TTAB to give

written suggestions or instructions on how to win the

eass ts eovnsel for FTiger Line while refusing to even

send copies of orders and essential Mnformation for-

mal'y requested to the FTigers Oil?

65. Is it not logical when statute law is violated

hy the PTO/TTAB and FTiger Line on getting an

opposition admitted and given due course out of time

and barred by statute that a long successions of illegal

5 acts by both FTiger Line and the (PTO/TTAB are inevi-

table and must be protected in order to sustain the

® original criminal and illegal act cf conspiracy to vio-

late the trademark law?

Xxiv APPENDIX

Appendice ‘C’

Note: This opinion will not be published in a printed

volume because it does not add significantly to the body

of law and is not of widespread legal interest. It is a

public record. It is not citable as precedent. The de-

cision will appear in tables published periodically.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

Appeal No. 84-602

THE’FLYING TIGERS OIL COMPANY, INC.,

Appellant,

Vv.

THE FLYING TIGER LINE, INC...

Appellee.

DECIDED: October 5, 1984

Before KASHIWA, Circuit Judge, SKELTON, Senior

Circuit Judge, and NIES, Circuit Judge.

DECISION

The Flying Tigers Oil Co., Inc. seeks review of va-

rious preliminary decisions of the Trademark Trial and

Appeal Board (board) in connection with Opposition

No. 63,986, including the board’s denial of its motion to

dismiss and motion for summary judgment. The appeal

being premature, we dismiss for lack of jurisdiction.

In addition, the Flying Tigers Oil Co., Inc’s petition

for a writ of mandamus is denied. All other motions

are dismissed as moot.

ABLE COPY

Appendice ‘C’ xxv

DISCUSSION

The jurisdictio.. of this court to entertain appea!'s

from the board is derived from 15 U.S.C. § 1071 (a) (1),

which provides in pertinent part: “An applicant for re-

gistration of a mark ... who is dissatisfied with the

decision of the . . . Trademark Trial and Appeal Board

... May appeal to the United States Court of Appeals

for the Federal Circuit. .. .” (emphasis added).

In United States Treasuwiy v. Synthetic Plastics C.,

341 F.2d 157, 144 USPQ 429, 429-430 (CCPA 1965), it

was held that the term “decision” in the present con-

text, “means a dispositive decision in which a right has

been adjudicated.”! The denial of a motion to dismiss

is not dispositive. See Wagner Shokai, Ins. v. Kabush ki

Kaisha Wako, 699 F.2d 1390, 217 USPQ 98 (Fed. Cir.

1983) and cases cited therein.

Nor does the denial of a motion for summary judg-

ment give rise to an appealable decision. R. G. Barry

Corp. v. Mushradom Makers, Inc., 609 F.2d 1002, 204

USPQ 195 (CCPA 1979). lt does not adjudicate a right

nor is ic dispositive of any issue in the proceeding. Since

there has been no “decision” within the meaning of i5

USC. § 1071(a)(1), this court has no jurisdiction

over the present appeal based upon that section. A

mere charge that the board has committed errors pro-

vides no basis of this court’s jurisdiction under §

1071 (a)(1). This court reviews final decisions of the

board. We are not empowered to exercise supervisory

authority during proceedings.

Alternatively, appellant seeks a writ of mandamus

directing the board to dismiss Opposition No. 63,986, and

1 This court has succeeded to the jurisdiction of the Court

of Customs and Patent Appeals, Federal Courts Improvement Act

of 1982, Pub. L. No. 97-164, § 127 (a), 96 Stat. 25, 38, and has

adopted its precedents. South Corp. v. United States, 690 F.2d

1368, 215 USPQ 657 (Fed. Cir. 1982).

Xxvi Appendice ‘C’

to register appellant’s mark. Under 28 U.S.C. § 1651,

the All Writs Act, this court is empowered to issue writs

are “necessary or appropriate in aid of” its jurisdiction.

The issuance of a writ of mandamus is an extraordinary

remedy which has been granted by this court only in

limited circumstances. Mandamus is not appropriate

merely to circumvent normal appeal procedures.

Appellant argues that mandamus is justified in this

case because appellee’s opposition papers were asserted-

ly “filed out of time.” Allowing the opposition to

proceed, therefore, purportedly exceeds the power of the

board and violates a variety of appellant’s constitutional

rights.

Having reviewed the board’s actions in the oppo-

sition proceeding, however, we see nothing that might

frustrate our potential jurisdiction over this case. More

particularily, the timeliness issue, if properly raised be-

fore the board, could be reviewed on appeal.. See In re

Precision Screen Machines, Inc., 729 F.2d 1428, 1429, 221

USPQ 1034, 1034-1035 (Fed. Cir. 1984). Appellant’s

petition. for a writ of mandamus is, accordingly, denied.

In an order dated March 22, 1984, this court grant-

ed Mr. Alberto C. Soriano permission to represent The

Flying Tigers Oil Company, Inc. in this appeal. Mr.

Soriano has filed numerous papers which indicate a lack

of familiarity with this court’s functions, procedures

and standards for counsel. Mr. Soriano’s right to rep-

resent appellant terminates with this decision by the

court. The court advises The Flying Tigers Oi] Com

pany, Inc., that it must be represented by an attorney

who is a member of the bar of this court in any fu-

ture matters brought before us.

OO eee eee eee

APPENDIX XXvil

Appendice ‘C-1’

UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

THE FLYING TIGERS OIL CO.,

INC.,

Appellant, Appeal No. 84-602

On Motion to

THE FLYING TIGER LINE. Intervene

INC.,

Appellee.

ORDER

The motion of Morton F. Meads and/or Flying Ti-

gers International filed March 12, 1984, for leave to in-

tervene is denied.

In view of the order of this court dated March 22,

1984, admitting Mr. Albert C. Soriano to the bar of

this court pro hac vice for the purpose of appearing

on behalf of appellant in the above-captioned appeal,

the need set forth in the motion for leave to intervene

is obviated.

FOR THE COURT

Marion T. Bennett

Circuit Judge

March 30, 1984

XXViii APPENDIX

Appendice ‘C-2’

UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

THE FLYING TIGERS OIL CO., \

INC.,

Appellant, | Appeal No. 84-602

Vv. On Motion to

\ Intervene

THE FLYING TIGER LINE,

INC.,

Appellee.

ORDER

The motion of Robert Zlomke filed March 12, 1984,

for leave to intervene is denied.

In view of the order of this court dated March 22,

1984, admitting Mr. Albert C. Soriano to the bar of

this court pro hac vice for the purpose of appearing

on behalf of appellant in the above-captioned appeal,

the need set forth in the motion for leave to intervene

is obviated.

FOR THE COURT

Marion T. Bennett

Circuit Judge

March 30, 1984

APPENDIX XXix

Apnendice ‘D’

Is a notice dated February 13, 1981 that due course

has been given to an opposition filed on January 5, 1981

(Out of Time), and that the Flying Tigers Oil Com-

pany, Inc. must answer. This is made an appendice by

reference to the record of the PTO/TTAB, copy of

which the petitioners do not have. See the Certified List.

Petitioners cannct supply a copy thereof because the

Patents Office refuse to send copies of orders to us,

and refuses to answer letters of cne or more of the

petitioners, on the subject of this case.

This document is made an appendice by reference

to how the ‘decision’ to give due course to an opposi-

tion filed out of time and therefore inadmissible by

statute law, and thus the commissioner/PTO/TTAB have

no discretion because no request for extension of time

was filed before the expiration of the due date for

an opposition, which date must be within the 30-day

period after date of publication, which date is Novem-

ber 18, 1980.

Appendice ‘FE’

Is a notice dated March 6, 1981 that due course

has been given to an Cpposition Filed on January 5,

1981 (out of time), and. that the Flying Tigers Oil Co.,

Inc. must answer.

The same statements above for Appendice ‘D’ also

apply to this appendice.

Appendice ‘H’

Is an Order dated December 22. 1982. the exact

contents of which are not known to petitioners because

a copy thereof was never delivered to Flying Tigers

XXX Appendices ‘B’, ‘D’, ‘E’ & ‘H’

Oil Co., Inc. and herein petiticners only came to know

about the order from the Certified List furnished by

the clerk of court of the CAFC, after months of eva-

sion by the PTO/TTAB. From the Certified List there

is the indication that it is an order that denies some-

thing and sets trial dates. The Certified List is in

the Record of Appeal 84-602, and also in this Appen+

dix. The Flying Tigers Oil Co., Inc. has requested co-

pies of that order from the patents office TTAB but

they have refused to send it. which is just one of the

many documents and official information about this case

which have been requested but which the PTO/TTAB

has refused to send tto one or more of the herein peti-

tioners. Thus necessiitating making said order an ap-

pendice by ‘Reference’ to the record of the PTO/TTAB.

Appendice ‘B’

Appendice ‘B’ is the list of Questions Presented in

the U.S. Court of Appeals for the Federal Circuit. This

appendice is by reference to the Questions presented

actually filed in the CAFC. Reference is also made to

the same list filed as Appendice ‘B’ of the Tynewritten

Petition for Certiorari filed by Petitioner Robert Zlomke in

the Flying Tiger Line and its counsel] has four copies, the

the printed petition on the same subject matter of various

petitioners. The CAFC has 24 copies of this Appendice.

the Flying Tige Line andi ts counsel has four copies. the

PTO/TTAB has the Questions through the Notice of

[Appeal and QP copy of which was sent to that office.

APPENDIX xXxxl

Appendice ‘F’

US. DEPARTMENT OF COMMERCE

Patent and Trademark Office

Address:

COMMISSIONER OF PATENTS AND TRADEMARK

s Washington, D.C. 20231

Opposition No. 63,986

MAILED The Flyirg Tiger Line, Inc.

. SEP 16, 1981 v.

4 PAT. & T. M. Office The Flying Tigers Oil Company,

Ine.

On January 5, 1981, opposer, The Flying Tiger Line

Inc., filed a notice of opposition to prevent the registra-

tion of applicant’s mark in applicaticn Serial No. 86,288,

published in the Official Gazette of November 18, 1980.

Applicant responded with a pleading entitled “Motion to

Dismiss and Counterclaim or Answer to Opposition with

Counterclaim,” on April 9, 1981.

The answer, however, is not a proper vehicle for a

motion but rather serves to jcin issues in a proceeding.

If applicant wishes to be heard on a motion to dismiss,

a separate motion in compliance with Trademark Rule

?.127(a\ should be filed. That rule provides in part

that motions shall be made in writing and skal! contain

a full statement of the grounds therefor and that ary

brief or memorandum in support thereof shall accom-

pany or be embodied in the motion.

Accordingly, no consideration will be given to that

portion of applicant’s affirmative defense which moves to

dissmiss the notice of opposition for having been filed

out of time.

XXXli Appendice ‘F’

In its pleading, applicant has included a counter-

claim for cancellation of Registration Nos. 999,837 and

969,394. Applicant has failed to submit the required

fee for each class sought to be cancelled in the regis-

trations. See Sections 14 and 31 of the Trademark

Act of 1946 and Trademark Rule 2.111.

Finally, it is noted that applicant’s “answer and

counterclaim” is a very lengthy and argumentative do-

cument which cannot be considered a short and plain

statement of its claims or defenses. See Fed. R. Civ.

P. 8(b). Also, Ruie 8(e) (12) of the Federal Rules

of Civil Procedure requires that each averment of a

pleading be simple, concise, and direct. The function

of pleadings under the Federal Rules is to give fair

notice of the claims or defenses asserted so as to enable

the adverse party to answer and prepare for trial. Good

practice demands that the pleadings be “short” and

‘plain’, even in matters where the rules specifically re-

quire particularity. See Moore’s Manuel: Federal Prac-

tice and Procedure, Section 10.04 and Fed. R. Civ. P.

9(b).

Accordingly, applicant is allowed until October 16,

1981 to submit an amended motion to dismiss in accord-

ance with Trademark Rule 2.127(a),. and a_ separate

amended answer and counterclaim for cancellation of

opposer’s registrations including the required fee for each

class sought to cancelled in the registrations.

In view thereof. opposer’s request for an exten-

sion of time respond to the motion to dismiss is con-

sidered moot.

Finally, it appears that some delay has been oc-

casioned by the fact that applicant’s papers have not

been served on opposer’s attorney by air mail. In the

Appendice ‘F’ XXXili

Opposition No. 63,986

future applicant is requested to serve its papers sent

from overseas by air mail.

R. L. SIMMS

Acting Member, Trademark

Trial and Appeal Board

ce:

Lyon & Lyon

800 Wilshire Boulevard

Los Angeles, California 90017

The Flying Tiger Oil Company, Inc.

2540 E. Indian Schoo] Road

Phoenix, Arizona

XXXiv APPENDIX

Appendice ‘G’

U.S. DEPARTMENT OF COMMERCE

Patent and Trademark Office

Address:

COMMISSIONER OF PATENT AND TRADEMARK

Washington, D.C. 20231

Opposition No. 63,986

The Flying Tiger Line, Inc.

MAILED Vv.

JUL 18, 1982 The Flying Tigers Oil Company,

PAT. & T.M. Office Inc,

An application has been filed by The Flying Tigers

Oil Company, Inc., an Arizona Corporation, to register

the mark “FLYING TIGERS OIL COMPANY” and de-

sign for oil-lease evaluation services. Applicant recites

a date of first use cf 1953; and date of first use in

commerce of 1959.

Registration has been opposed by the Flying Tiger

Line, Inc. on the grounds that opposer is the owner of

Registration No. 999.837 for the mark “FLYING TI-

GERS”; Registration No. 1,004,980 for “FLYING TI-

GER LINE”; and Registration No. 969.394 for the de-

sign of a tiger head, all three registrations being for

air cargo transportaticn services; that opposer is a suh-

sidiary of Tiger International a diversified company

which has other subsidiaries which deal with leasine

of tank cars; that opposer contracts with oil companies

and other air carriers to provide fuel services: the mark

“FLYING TIGERS” is a strong and famovs mark known

throughout the world; that applican’t mark so resembles

opposer’s mark as to he likely to cause confusion. mis-

take or deception; and that registration to applicant will

dilute the distinctiveness and good will associated with

oppcser’s mark.

Appendice ‘G’ XXXV

Applicant filed on April 4, 1981, an answer with a

counterclaim and a motion to dismiss. The Board, in an

order dated September 16, 1981, explained that the ans-

wer was not a proper vehicle for a motion to dismiss;

that the two papers must be separate; that the answer

must be a short and plain statement of applicant’s claims

or defenses; and that the proper fee had not been sub-

mitted for the counterclaims. On October 20, 1981, ap-

plicant filed a second answer and counterclaim. Since

the second answer does contain admissions and denials

and he!ps frame the issues for this proceeding, it will

be accepted as applicant’s pleading.)

The proper fee for counterclaims against two of op-

poser’s registrations have now been paid. However, the

verification is unacceptable as it is not accordance with

Section 11 of the Lanham Act, inasmuch as it was

executed in Manila, Philippines. The verification must

be made before a diplomatic or consular officer of the

United States or before any official authorized to ad-

minister caths in the foreign country whose authority

is proved by a certificate from a diplomatic or consular

officer of the United States. The counterclaim cannot

be considered until it is properly verified. Applicant is

(1) In applicant’s cover letter dated October 26 1981. applicant

requested that the Office mail to onnoser a copy of the 31 exhibits

attached to annlicant’s answer. This request is denied and ap-

plieant is reminded that under Trademark Rule 2.119, applicant

must serve on the adverse partv a cony of each paper filed in a

proceeding. Strict compliance is required and it is the resnonsi-

bility of the parties to so complv. Accordingly, applicant is al-

lowed until August 13, 1982 in which to serve a copy of the 31

exhibits upon opposer and to suhmit to the Board of statement

that such cervice has been made, failing which the exhibits will be

stricken. In connection with foregoing, it should be noted that

exhibits attached to pleadines cannot be considered as evidence on

behalf of the party who filed them unless they are identified en

introduced into evidence in the same manner as other exhibits

during the testimony period of suchp arty. See: Trademark Rule

2.126.

XXXxvi Appendice ‘G’

allowed until August 13, 1982 to submit the proper ve-

rification. ‘?

This case now comes up on applicant’s motion to

dismiss filed October 28, 1981; and opposer’s motion for

summary judgment filed November 9, 1981. Each party

has a response thereto.

Turning first to applicant’s motion to dismiss,

applicant asserts that opposer “plaqiarized’” the marks

from three entities, namely, The Flying Tigers Oi! Com-

pany, Inc., The Flying Tigers Party, and The Flying

Tigers International that applicant claims use since

the 1940’s; that opposer did not use the logo of a design

of tiger head until recent years that opposed claimed

five years uncontested continuous use under Section 8

and 15 while applicant’s present application was pending;

and that opposer has acquired in use of the mark by

applicant.)

Opposer argues that although applicant’s motion is

difficult to intepret and to respond to, opposer believes

applicant’s major points are that applicant was the first

to use the marks in question; that opposer’s registra-

tions were fraudulently obtained; and that the marks

are different. Opposer argues that no formal grounds

for dismissal have been stated and that if apnlicant’s

motion is construed as one for summary judgment. there

are genuine issues of fact to be considered and summary

judgement should be denied.

We are inclined to agree with opposer that is. ap-

plicant’s motion is extremely difficult to construe. How-

ever, it is construed by the Board as a motion to dis-

(2) QOpposer’s response to the counterclaim filed on November 9,

1982 % noted.

(3) Apnlicant requested that o»poser be required to deposit $150.00

for the credit of applicant to cover the enst of the this opposition.

Applicant is advised that there is no authority for such a request.

Appendice ‘GQ’ XXxvil

miss, and as such it does not state a proper ground

on which to dismiss a proceeding. In any event, op-

poser has alleged that it is the owner of three regis-

tration, that applicant and opposer’s marks and ser-

vices are substantially similar, and that confusion re-

sults in damage to oppcser. Thus, opposer has stated

a claim which, if proved, would be sufficient on which

to grant relief. Therefore, applicant’s motion to dismiss

is denied.

Turning now to oppcsser’s motion for summary jud

gment, opposer asserts that no proper specimens evi-

cencing use of the mark prior to the filing date were

ever supplied to the Office, and that the file shows there

has been no use of the mark in any form of commerce

regulable by Congress.

The application was originally refused registration

by the Office Examining Attorney as showing trade name

use only. Applicant submitted substitute specimens

which were advertisements later identified as being from

the Orient News, a newspaper in Manila, Philippines.

As opposer points ovt there was no affidavit support-

ing use of these substitute specimens and although the

paper was not dated, a leval notice within the paver

was dated December 4, 1976, which is after the filing

date of May 6, 1976.

The application is based en an allegation of use in

“territorial” commerce. while the applicant is a cor-

peration of the state of Arizona.

Applicant argues that it acted in accordance with

requirements of the Trademark Examiner; that the state-

ments in the application are under oath; that the “ter-

ritory” referred by applicant is the United States terri-

torial boundaries and further that applicant could ard

would state in an affidavit that its use in commerce

which can be lawfully regulated by Congress was prior

to May 1976.

XXXViil Appendice ‘GQ’

In this case there are genuine issues of material

fact yet to be resolved, including whether applicant used

the service mark prior to the filing date of the appli-

cation and whether applicant used the mark prior to

that date in commerce regulable by Congress.

The party opposing the motion for summay judge-

ment should be given the benefit cf the doubt as to

whether genuine issues of fact exist. See: Aloe Creme

Laboratories, Inc., v. Aloe 99, Inc., 179 USPO 491 (CCPA

1973); and Litton Industries, Inc. v. Litronix Inc., 198

USPO 220. (CCPA 1976). Accordingly, opposer’s mo-

tion for summary judgment is denied.

Applicant filed on April 14, 1982, and on June 1,

1982, suplemental answers with affirmative defenses,

and supplemental information and exhibits. In the ab-

sence of formal motions to amend the answer and coun-

terclaim submitted on October 20, 1981, the ‘“supple-

mental answers and affirmative defenses” wi!l not be

considered part of applicant’s pleadings.

The petition for exclusion of opposer’s attorneys has

been denied in an order of the Deputy Commissioner

dated June 17, 1982.

Proceedings herein are suspended pending applicant’s

response to this action.

J. E. RICE

L. E, FRUDE

R. L. SIMMS

Members, Trademark

Trial and Appeal Board

nl % . sy

PONTE PORES Bass te Le OW

Si umteta tetie tes

Re a BIE ek etal et aS

APPENDIX XXXIx

Appendice ‘I’

U.S. DEPARTMENT OF COMMERCE

Patent and Trademark Office

Address:

COMMISSIONER OF PATENTS AND TRADEMARK

Washington, D.C. 20231

Opposition No. 63,986

The Flying Tiger Line, Inc.

MAILED v.

JUN 21, 1983 The Flying Tigers Oil Company.

PAT. & T. M. Office Inc.

This case now comes up on the following matters

and motions:

(1) <Applicant’s motion to admit copies of the files

of application Serial No. 86,288; and Registration Nos.

969.394; 999.837; and 1,004,930 without certification

(filed February 22, 1983) ;

(2) Applicant’s support of its motion for reconsi-

deration of the TTAB decision denying applicant’s mo-

tion to dismiss (filed February 22, 1983);

(3) Applicant’s reply to opposer’s opposition to

anplicant’s motion for reconsideration of the Board’s de-

nial of applicant’s motion to dismiss (filed March 2.

1983) ; and

(4) Applicant’s motion for summary judgment as

to certain issues (filed March 10, 1983).

Turning first to applicant’s motion to admit copies

cf the files which are not certified, applicant’s atten-

tion is directed to Rule 2.122(a), which provides, in

xl Appendice ‘]’

part. that the file of the application against which an

opposition is filed and of the registration against which

an affirmative defense requesting cancellation is filed,

form part of the record of the proceeding without any

action by the parties.

In this case, application Serial No. 86,288, is the

subject of the opposition proceeding, and Registration

Nos. 969,394 and 999,837 are the subject of the coun-

terclaims to cancel. Therefore, .hose three files are

considered of record without certification under Rule

2.122 (a).

Opposer’s third pleaded registration (Reg. No.

1,004,930) is not the subject of a counterclaim to cancel

in this proceeding. Therefore, the file of Reg. No.

1,004,930 is not considered of record under Rule 2.122(a).

If applicant wishes to introduce in evidence the file of

Reg. No. 1,004,930, it must file a copy thereof in this

proceeding together with a notice of reliance during its

testimony period. Rule2.122(c). This need not be a

certified copy.

Since three of the files listed in applicant’s motion

to admit copies is deemed moot. The remaining file

may be introduced as explained above. !)

All three of the other papers filed by applicant es-

sentially deal with the same matter.

Opposer filed no response to any of these papers.

Under Rule 2.127, if a party fails to file a brief in

oppositon to a motion, the motion may be treated by

the Board as conceded. In the circumstances of this

(1) Opposer should note that in order to make its remaining

pleaded registration of record. opposer must establish that the

registration is still subsistine “nc owned by opposer. See Peter’s

Srortswear Co., Inc. v. Peter’s Bag Corporation, 187 USPQ 647

(TTAB 1975) for the various methods of making a pleaded re-

gistration (which is not the subject matter of a counterclaim) of

record.

Appendice ‘I’ xli

case, however, applicant’s papers rerarding dismissal and

summary judgment will be determired on the merits.

Applicant moves for summary judgment on the fol-

lowing issues set forth by applicant: (1) Is opposer

bound by Rule 8(b) and (d), FRCP, requiring opposer

to answer each and every averment of fact in the

counterclaim by denial, admission, cr disclaimer of know-

ledge? (2) Is opposer bound by Rule 8, FRCP, provid-

ing that failure to deny specifically constitutes an ad-

mission of the numbered avertment? and (3) Is opposer

by its failure to specifically deny the numbered aver-

ments in applicant’s affirmative defenses (countercla‘m),

deemed to have admitted same?

Applicant’s motion for summary judgment and re-

quests for dismissal may all ke consirued as a motion

for judgment on the pleadings (Rule 12(c). FRCP)

since they essentially seek judgment on the basis of

what applicant believes are admissions in cpposer’s reply

to applicant’s counterclaims.

In its motions, applicant essentially asserts that op-

poser did not specifically number the paragraphs in its

response to the affirmative defenses (counterclaims) as

required by Rule 10(b), FRCP; that opposer did not

snecifically deny the numbered paragraphs of applicant’s

affirmative defenses (counterclaims); that any averment

rot specifically denied is deemed admitted under Rule

8 (d), FRCP; and that therefore, opposer’s reply to

to the counterclaims constitutes an admission of any

averment not specially denied.

Proceedings before the Board are governed by the

Trademark Rules and the Federal Rules of Civil Pro-

cedure, as made applicable by Trademark Rule 2.116.

All parties to a proceeding before the Board are bound

by those rules.

xlii Appendice ‘I’

Turning to applicant’s third reason for judgment,

the Board has carefully reviewed applicant’s counter-

claims, and opposer’s reply thereto.

Applicant’s counterclaims consist of numbered pa-

ragraphs 10-28. Paragraph 28 (made up of subparts

A-H) is apparentiy a summation of the grounds for

applicant’s counterclaims contained in paragraphs 10-27.

Opposer, in its reply to the counterclaims, denied the

allegations of paragraph 28(B), (C), (D), (E), and

(G); admitted in part and denied in part paragraph

28(F); and denied paragraph 8(H) and asserted that

copies of applicant’s exhibits 1-31 listed therein have

not been received by opposer.

Paragraph 23(A) of applicant’s counterclaim in-

corporates by reference paragraphs 1-27 of its answer

and counterclaims’?) Opposer set forth a general state-

ment of its position, explaining that in view of the na-

ture of applicant’s counterclaims it would be difficult

to respond to each specific paragraph referred to in

paragraph 28(A).

Rule 8(f), FRCP, provides that “All pleadings shall

be so construed as to do substantial justice.”

This mandate is the heart of the rules on pleadings,

and under the Federal Rules of Civil Procedure, plead-

ings are to be judged by substance rather than form.

See 2A Moore’s Federal Practice, Section 9.34, p. 8-299.

Although Rule 10(b), FRCP, requires separate num-

bered paragraphs, in this case, opposer has explained why

the reply to the counterclaims was set forth in the

manner it was. Moreover, we agree with opposer that,

(2) Applicant is advised that »~aragranhs 1-9 forming applicant's

answer to the notice of opposition require no responsive pleading

from opposer. Only the paragranhs which form the covnterclaims

to cancel require a responsive pleading. See Rule 7, FRCP.

Appendice ‘I’ xlili

in view of the nature of applicant's counterclaims plead-

ing, it would have been difficult to respond to applicant’s

counterclaims by separate numbered paragraphs. Opposer

has clearly denied the essential allegations of applicant's

counterclaims. We believe opposer's reply to the coun-

terclaims meets the requirements cf the Federal Rules

of Civil Procedure.

Since opposer has denied the essential allegations

of the counterclaims, since the pleadings are not to be

judged by form rather than substance, and in order to

do substantial justice, we find that in this case opposer

has denied the averments of the counterclaims under

Rule 8(d), FRCP.

Accordingly, all three of the papers submitted by

applicant seeking relief through dismissal or summary

. judgment based on Rule 8(d), FRCP, (construed by

the Board as requests for judgments on the pleadings),

are denied. ‘

In view ef the-delay occasioned in ruling on these

matters, trial and discovery dates are reset as indicated

below:

THE PERIOD FOR DISCOVERY

TO CLOSE July 11, 1983

Testimony period for Flying Tiger

Line. Inc. as plaintiff in the cp-

position to close September 9, 1983

(opening thirty days prior thereto)

Testimony pericd for The Flying

Tigers Oil Ccinpany, Ine. as de-

fendant in the opposition and as

plaintiff in the counterclaim to

close November 8, 1983

(cpening thirty days prior thereto)

xliv Appendice ‘I’

Testimony period for Flying Tiger

Line, Inc. as defendant in the coun-

terclaim and its rebuttal testimo-

ny as plaintiff in the opposition to

close January 9, 1984

(opening thirty days prior thereto)

Rebuttal testimony period for The

Flying Tigers Oil Company, Inc. as

plaintiff in the counterclaim toclose February 23, 1984

(opening thirty days prior thereto)

Briefs shall be filed in accordance with Rule 2.128 (a)

and (b).

An oral hearing will be set only upon request filed

as provided by Rule 2.128(c),

L. E, FRUGE

J. E. RICE

R. L. SIMMS

Members, Trademark

Trial and Appeal Board

APPENDIX xlv

APPENDICE ‘J’

TRADEMARK ACT OF 1946, AS AMENDED

Public Law 489, 79th Congress, Chapter 540, approved

July 5, 1946; 60 Stat. 427

The headings used for sections and subsections or

paragraphs in the following reprint of the Act are not part

of the Act but have been added for convenience in using

this reprint. Prior trademark statutes may be found in

Title 15, Chapter 3, of the U.S. Code and in the Statutes

at Large. The present Act forms Chapter 22 of Title 15

of the U.S. Code and the U.S. Code citations have been

p'aced at the beginning of each section and subsection.

Included are amendments made to section 7(a) by the

Act of August 17, 1950, Public Law 710, 81st Congress,

64 Stat. 459; to section 21 by the Act of July 19, 1952,

Public Law 593, 82nd Congress, 66 Stat. 792; to sections

17, 20. 21, 24. and 31 by the Act of August 8, 1958,

Pub'ic Law 609, 85th Congress, 72 Stat. 540; to section

44(d) by the Act of October 3, 1961, Public Law 333,

87th Congress, 75 Stat. 748; to sections 1(a)\(1). 2(d).

6. T(a). 7(d). Tle), 7(f), 9, 10, 12(a). 12(c). 18, 14,

15, 16. 21, 23. 24, 29, 30, 32, 33, 35. 44(b). 44(e), and

45 by the Act of October 9, 1962, Public Law 772, 87th

Congress, 76 Stat. 769; to section 31 by the Act of July

24, 19€5. Public Law 83, 89th Coneress 79 Stat. 260;

to section 29 and the term “Patert Office” and “Commis-

sioner of Patents” by the Act ef January 2. 1975, Public

Law 596. 93rd Congress, 88 Stat. 1949: to sections 13. 21.

and 35 bv the Act of January 2, 1975. Public Taw 0.

98rd Conrress, 88 Stat. 1955: and to section 42 bv the

Act of October 3. 1978. Public Law 410. 95th Congress.

92 Stat. 9C3.

NOTE: The terms “Patent Office »nd “Commissioner of Patents”

should be understood as meaning “Patent and Trademark Office”

xlvi Appendice ‘J’

and “Commissioner of Patents and Trademarks”, respectively, Sec.

3, Public Law 99.598, Jan. 1976, as Stat. 1949.

* * *

Sec. 7(e) (15 U.S.C. 1057e). Copies of Patent and Trade-

mark Office records as evidence

Copies of any records, books, papers, or drawings

belonging to the Patent and Trademark Office relating

to marks, and copies of registrations, when authenticated

by the seal of the Patent and Trademark Office and

certified by the Commissioner, or in his name by an

employee cf the Office duly designated by the Commis-

sioner. shal! Le evidence in a'! cases wherein the originals

would be evidence; and any person making application

therefor and paying the fee required by law shal! have

such copies (Amended Oct. 9, 1962, 76 Stat. 769).

* * >

Sec. 12(a) (15 U.S.C. 1062a). Examination of applica-

tion-—Publication of mark when entitled to registra-

tion

Upon the filing of an application for registration

and payment of the fee herein provided, the Commission-

er shall refer the application to the examiner in charge

of the registration of marks, who shall cause an exami-

nation te be made and. if on such examination it shall

appear that the applicant is entitled to registration, the

Commissioner shall cause the mark to be published in

the Official Gazettee of the Patent and Trademark Office:

Provided, That in the case of an applicant claiming con-

current use, or in the case of an application to be placed

in an interference as provided for in section 16 of this

Act, the mark, if otherwise registrable. may be publish-

ed subject to the determination of the rights of the

parties to such proceedings (Amended Oct. 9, 1962, 76

Stat. 769).

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Lop Cap ie nl i RiP KREIS Ser

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Appendice ‘J’ xlvii

Sec. 13 (15 U.S.C. 1063). Opposition to registration of

marks on the principal register

Any person who believes that he would be damaged

by the registration of a mark upon the principal re-

gister may, upon payment of the required fee, file a

verified opposition in the Patent and Trademark Office,

stating the guards therefor, within thirty days after the

publication under subsection (a) of section 12 of this

Act of the mark sought to be registered. Upon written

request prior to the expiration of the thirty-day period,

the time for filing opposition shall be extended for an

additional thirty days. and further extensions of time

for filing opposition may be granted by the Commission-

er for good cause. The Commissioner shall notify the

applicant of each extension of the time for filing op-

position. An unverified opposition may be filed by a

duly authorized attorney. but such opposition shall be

null and void unless verified by the opposer within a

reasonable time after such filing to be fixed by the Com-

missioner. An opposition may be amended under such

conditions as may be prescribed by the Commissioner

(Amended Oct. 9, 1962, 76 Stat. 769; and Jan. 2, 1975,

88 Stat. 1955).

Sec. 14 (15 U.S.C. 1064). Cancellation of registrations

A verified petition to cancel a registration of a mark,

stating the grounds relied upon, may, upon payment of

the prescribed fee, be filed by any person who believes

that he is or will be damaged by the registration of a

mark on the principal register established by this Act.

or under the Act of March 3, 1881, or the Act of

February 20, 1905—

(a) within five vears from the date of the regis-

tration of the mark under this Act; or

(b) within five years from the date cf publication

under section 12(c) herecf of a mark registered

under the Act of March 3, 1881. or the Act of

February 20, 1905; or .

My ili Appendice ‘J

common descriptive name of an article or substance,

or has been abandoned, or its registration was

obtained fraudulently or contrary to the provisions

of section 4 or of subsection (a), (b), or (c) of

section 2 of this Act for a registration hereunder,

or contrary to similar prohibitory provisions of

said prior Acts for a registration thereunder, or

if the registered mark is being used by, or with

the permission cf, the registrant so as to misrep-

resent the source of the gceods or services in con-

nection with which the mark is used; or

(d) at any time if the mark is registered under

the Act of March 3, 1881, or the Act of February

20. 1905, and has not been published under the pro-

visions of subsection (c) of section 12 of this Act;

(e) at any time in the case of a certification mark

on the ground that the registrant (1) does not con-

trol, or is not able legitimately to exercise control

over, the use of such mark, or (2) engages in the

production or marketing of any goods or services

to which the certification mark is applied. or (3)

permits the use of the certification mark for pur-

poses other than to certify. or (4) discriminately

refuses to certify the goods or services of any ner-

son who maintains the stancards or ecnditions which

such mark certifies:

Provided, That the Federal Trade Commission may apply

to cancel on the grounds specified in subsections (c)

and (e} of this section any mark registered on the prin-

cipal register established by this Act, and the prescribed

fee sheil not be requive?] (Amended Oct. 9, 1962, 76

Stat. 769).

ON LRT SE OO EEE

Appendice ‘J’ xlix

Sec. 30 (15 U.S.C. 1112). Classificaticn of goods and

services—Registration in a plurality of classes.

The Commissioner may establish a classification of

goods and services, for convenience of Patent and Trade-

mark Office administration, but not to limit or extend

the applicant’s rights. The applicant may file an ap-

plication to register a mark for any or all of the goods

and services upon or in connection with which he is

actually using the mark: Provided, That when such

goods or services fall within a plurality cf classes, a

fee equaling the sum of the fees for filing an applica-

tion in each class shall ke paid and the Commissioner

may issve a sing'e certificate of registration for such

mark (Amended Oct. 9, 1862, 76 Stat. 769).

» * *

sec. 37 (15 U.S.C. 1119). Remecies—Power of court over

registrations

In any action invclving a registered mark the court

may determine the right to registration, order the can-

ecllation of registrations, in whole or in part, restore

cancelled registrations, and otherwise rectify the register

with respect to the registrations of any party to the

action. Decrees and orders shall be certified by the court

to the Commissioner, who shall make appropriate entry

upen the records of the Patent and Trademark Office.

and shall be controlled thereby.

See. 38 (15 U.S.C. 1120). Remedies—Civil liability for

fal

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