Starring over 300 CDH families in the fight against the trademark on “Congenital Diaphragmatic Hernia Awareness” filed by Breath of Hope, Incorporated.
Starring over 300 CDH families in the fight against the trademark on “Congenital Diaphragmatic Hernia Awareness” filed by Breath of Hope, Incorporated.
CHERUBS met with an IRS agent this week who audited our books and accounts. We spent 2 days going over every financial detail and all our books and they found we’re doing nothing wrong.
On another positive note, the IRS agent got a hefty dose of Congenital Diaphragmatic Hernia Awareness! 🙂
We appreciate the support and faith of all of our members and the entire CDH community and hope that this slander is finally laid to rest.
“Truth is generally the best vindication against slander” – Abraham Lincoln
“Slander cannot destroy an honest man – when the flood recedes the rock is there” – Chinese proverb
“Slander is the revenge of a coward, and dissimulation his defense” – Author unknown
I wanted to update you on CHERUBS legal happenings….
CHERUBS had a pro bono attorney for the personal restraining order I had to take out against Elizabeth at Breath of Hope in 2006 I believe. Long story, not going into that as that’s not what this post is about.
CHERUBS had 3 pro bono lawyers from 2 law firms helping us on the trademark and a few additional tossing us advice here and there. HUGE help! But 1 law firm doesn’t have the manpower to give us anymore and the other is about to take over a much bigger project for us.
So that leaves me to deal with the trademark issue legal stuff alone. And to be honest, I have no clue what I’m doing. The stress of having 1000’s of people depend on me and CHERUBS to protect Congenital Diaphragmatic Hernia Awareness is enormous. I don’t want to mess this up. I need help. If you know of a trademark attorney who will help us, please let me know. They can be in any state as this is a federal issue. Please help if you can – these babies deserve to have the best representation to protect their rights. I am not that person to do that job, I am not qualified and I will not post that I am a legal expert or I am so intelligent that I don’t need a lawyer. I am bound to make some mistakes doing this alone (well, not alone – our Board is a huge help!), but we cannot afford to make mistakes. Taking on a trademark is not a small thing at all. This trademark is a huge ordeal, one that has to be stopped.
So that leads me to another notice. I will be taking down the timeline for a while. I will not be posting about any legal issues. I will no longer be keeping you updated on Elizabeth’s attacks or false allegations, slander, filings against CHERUBS with various agencies, etc. If you want updates on the trademark, you can go through the petition site to see the updates at the USPTO. Why, you ask?
For the first 3 years all this was going on, we kept quiet about it. Ignoring it did not help matters, it only enabled her and made her bolder. It got worse, so much worse that the restraining order was filed.
Then we went public, because other CDH parents were now being attacked and Elizabeth was filing accusations to try to have CHERUBS shut down. That was 2 years ago. You all have been pretty updated since.
But now, I am stepping back on the legal stuff and handing it all over to our new 2 pro bono lawyers to deal with. Whatever they deem necessary to do to stop the attacks, they have our blessing. Any court proceedings, filings, government intervention, criminal charges, etc – they have our blessing. 5 years of this is enough. It’s time to deal with this all once and for all and let the CDH community have some peace. We can’t thank our new lawyers enough, they are angels to help the CDH community this way!!!
And we can get back to supporting families dealing with Congenital Diaphragmatic Hernia and stop dealing with all Elizabeth’s drama and attacks. Too many CDH parents were put under the impression that CHERUBS is only about drama and stopping Elizabeth. That couldn’t be farther from the truth…. our site is drama free, we offer dozens of free services, the most CDH information on the net and with over 2700 families we offer the most support! 🙂 We’ve been here for 14 years with only one goal – helping families affected by CDH.
Now, we still have the trademark issue to deal with!!! I am still working on that video and we will release it this week. At the least, it will raise awareness! But we still need a lawyer! If you know a lawyer or you really want to help and just call lawyers and ask them to help us…. we would appreciate it so much!!!
On February 24, 2009, the following letter was sent to the Board Members of Breath of Hope, Incorporated. It is our formal attempt to end this trademark issue peacefully and to request that their organization do what is best for all families affected by Congenital Diaphragmatic Hernia.
This is our effort to resolve this particular issue and end this trial and to save the entire CDH Community 2 years of USPTO trial dates and to use our time and resources to better help CDH families.
The trademark trial is continuing, and will go forward, unless Breath of Hope, Inc. decides to resolve this issue.
What happens next is up to Breath of Hope, Inc and it’s Board Members.
Court starts tomorrow everyone!!!
I’d like to ask you all to please say a prayer that Breath of Hope, Inc will help to resolve this trademark issue peacefully and also I’d like to ask everyone to please use the Congenital Diaphragmatic Hernia Awareness Ribbon in your on-line profiles (Facebook, Myspace, Blogs, etc) tomorrow to show unity against the trademark on Congenital Diaphragmatic Hernia Awareness. Raise a little awareness while trying to save CDH awareness. 🙂
If you need a ribbon you can use any posted here or you can have a personalized one made by sending your cherub’s photo, name and date(s) to firstname.lastname@example.org
1:00 pm EST tomorrow, February 11, 2009 …. please say prayers for all CDH families that this drama may end.
How else can you help? Sign the petition and invite family and friends to sign.
Ask Breath of Hope, Inc and it’s board members why this trademark and attacking other CDH organizations and parents with legal threats is necessary. Under their “company profile” you can see their current Board of Directors:
Elizabeth Doyle-Propst (CEO, Primary Director) – email@example.com
Marsha McInnis (Director) – firstname.lastname@example.org
Rick Bryant (Director) – email@example.com
Jennifer Luning (Director) – firstname.lastname@example.org
Jean Ashner (Director) – email@example.com
Holly Centurino (Director) – firstname.lastname@example.org
We suggest finding other ways to contact the board (Myspace, Facebook, personal e-mail) as there is no guarantee that their BoH e-mail addresses are real or that mail is not filtered by the CEO. This has been suggested by former BoH Board Members. We will not post their private e-mail addresses.
Thank you everyone for your support throughout this ordeal and for all you are doing to help CDH families!!!
Several people have forwarded us very slanderous and false e-mails written to them to intimidate and threaten them into not disagreeing with the CDH Awareness Trademark. One of the false statements that Elizabeth Doyle-Propst likes to state is that she is “unable to stop the court proceedings” to cancel the “Congenital Diaphragmatic Hernia Awareness” Trademark. It is now being stated that “CHERUBS started it” and “CHERUBS is keeping this trademark on record” because Elizabeth is “stuck”. As humorous as this is, it’s a blatant attempt to avoid taking any responsibility for filing for the trademark, not removing and wasting Breath of Hope, Inc donations to fight to keep it. Fighting to keep something that only 1 person wants.
Because Elizabeth does not have legal counsel and is not known for her researching expertise, we thought that maybe she might have overlooked the volumes of text on the TTAB site that say that all Breath of Hope, Inc has to do is write a letter asking to drop the trademark and submit to the USPTO office. That’s it. She’s definitely great at writing letters, especially ones filled with (inaccurate) legalese so this should take about 5 minutes to do.
5 minutes to listen to the families and researchers who have requested the end to the Congenital Diaphragmatic Hernia Awareness Trademark. 5 minutes to listen to 1000’s of people. 5 minutes to listen to her own members.
If Elizabeth had not responded to the Petition to Cancel, then the trademark would’ve been removed and all this would’ve been resolved. She CHOSE to respond and fight for her trademark and continue this drama and continue to hurt the CDH community. She is CHOSING to continue this now instead of dropping it.
For Elizabeth’s information, our lawyer sent us the following links that we would like to pass on to her:
602 Withdrawal by Opposition or Cancellation Defendant
602.01 Withdrawal by Applicant
37 CFR § 2.68 Express abandonment (withdrawal) of application. An application may be expressly abandoned by filing in the Patent and Trademark Office a written statement of abandonment or withdrawal of the application signed by the applicant, or the attorney or other person representing the applicant. Except as provided in §2.135, the fact that an application has been expressly abandoned shall not, in any proceeding in the Patent and Trademark Office, affect any rights that the applicant may have in the mark which is the subject of the abandoned application.
37 CFR § 2.135 Abandonment of application or mark. After the commencement of an opposition, concurrent use, or interference proceeding, if the applicant files a written abandonment of the application or of the mark without the written consent of every adverse party to the proceeding, judgment shall be entered against the applicant. The written consent of an adverse party may be signed by the adverse party or by the adverse party’s attorney or other authorized representative.
37 CFR § 7.30 Effect of cancellation or expiration of international registration. When the International Bureau notifies the Office of the cancellation or expiration of an international registration, in whole or in part, the Office shall cancel, in whole or in part, the corresponding pending or registered extension of protection to the United States. The date of cancellation of an extension of protection or relevant part shall be the date of cancellation or expiration of the corresponding international registration or relevant part.
An applicant may expressly abandon its application by filing in the Office a written statement of abandonment or withdrawal of the application, signed by the applicant or the applicant’s attorney or other authorized representative.7
However, after the commencement of an opposition proceeding, if the applicant files a written abandonment of its subject application or mark without the written consent of every adverse party to the proceeding, judgment will be entered against the applicant.8 The written consent of an adverse party may be signed by the adverse party itself, or by the adverse party’s attorney or other authorized representative.9
For information concerning the effect of a 37 CFR § 2.135 judgment against applicant, see cases cited in the note below.10
7 37 CFR § 2.68.
8 37 CFR § 2.135. See Fleming Companies Inc. v. Thriftway Inc., 21 USPQ2d 1451, 1456 (TTAB 1991), aff’d, 26 USPQ2d 1551 (S.D.Ohio 1992) (where excepted user abandoned application in concurrent use proceeding, judgment precluded applicant from obtaining any registration at all, although it may remain in proceeding as defaulting user); Goodway Corp. v. International Marketing Group Inc., 15 USPQ2d 1749, 1749 (TTAB 1990); Grinnell Corp. v. Grinnell Concrete Pavingstones Inc., 14 USPQ2d 2065, 2067 (TTAB 1990) (consent required for abandonment without prejudice regardless of motivation for abandonment, i.e.. a concession by applicant that it is not owner of mark and that judgment would be unfair to real owner, a nonparty to the case); and In re First National Bank of Boston, 199 USPQ 296, 301 (TTAB 1978) (where abandonment of application and notice of opposition were filed on same day, consent was not required because there was no application to oppose).
9 See 37 CFR § 2.135.
10 Miller Brewing Co. v. Coy International Corp., 230 USPQ 675, 678 (TTAB 1986) (judgment in first opposition, as result of abandonment of application without consent, operates as claim preclusion in subsequent opposition so as to bar applicant’s subsequent application for an insignificantly modified mark); United States Olympic Committee v. Bata Shoe Co., 225 USPQ 340, 342 (TTAB 1984) (abandonment of application without consent in previous opposition does not operate as collateral estoppel or claim preclusion in subsequent cancellation proceeding between same parties since the two cases involve two distinct marks, and does not operate as issue preclusion because no issues were actually litigated in the prior opposition); Bass Anglers Sportsman Society of America, Inc. v. Bass Pro Lures, Inc., 200 USPQ 819, 822 (TTAB 1978) (judgment against applicant in prior opposition due to abandonment of application without consent operated as collateral estoppel in subsequent opposition involving same marks and same parties in opposite positions); and In re Communications Technology Corp., 182 USPQ 695, 696 (TTAB 1974) (judgment against applicant in prior opposition between applicant and owner of cited registration is not conclusive of likelihood of confusion and does not operate as a estoppel in subsequent application for a distinctly different mark).
Cf. Aromatique Inc. v. Lang, 25 USPQ2d 1359, 1361 (TTAB 1992) (applicant, by abandoning application with prejudice in prior opposition is estopped in subsequent opposition from attempting to register virtually identical mark for identical goods), and Johnson & Johnson v. Bio-Medical Sciences, Inc., 179 USPQ 765 (TTAB 1973) (dismissal of previous counterclaims with prejudice operated as estoppel barring same counterclaims in subsequent proceeding).
And for the information of the members of Breath of Hope, Inc., here is the USPTO’s listing of how much money your “charity” is spending to “own” Congenital Diaphragmatic Hernia Awareness.
Putting one person’s pride before the wellbeing of 1000’s is not what a leader is supposed to do.
ACDHO (The Alliance of Congenital Diaphragmatic Hernia Organizations) was created as a forum for CDH organizations / groups / non-profits / sites to work together to help families affected by Congenital Diaphragmatic Hernia, to promote awareness and to increase research. The entire CDH community working together for positive goals in a positive environment.
Several members and other organizations are receiving threats and intimidating e-mails from Elizabeth Doyle-Propst so for the record:
ACDHO is not about Elizabeth or Breath or Hope. The CDH community has many other services and goals and does not revolve around one person or group or the dramas of groups who cannot get along with other organizations.
ACDHO does not have a leader. We are all equal.
ACDHO members should not be intimidated or attacked simply for trying to work with the CDH community.
If a member of ACDHO wishes to participate in standing against the Congenital Diaphragmatic Hernia Awareness trademark, then contacting them to intimidate them or harass them when there is a trial going on is a federal offense.
Breath of Hope, Inc and Elizabeth Doyle-Propst have been e-mailing and posting (rather immaturely) that “CHERUBS started it” when we filed the Petition to Cancel the trademark that was filed by Breath of Hope, Inc. Repeat – FILED BY BREATH OF HOPE, INC.
We are standing up for CDH Awareness and CDH families. Continuing to harass, threaten and intimidate CDH parents is unethical, cruel and illegal.
Contacting potential witnesses to intimidate them is a federal offense.
At any time, Breath of Hope, Inc can stop the trademark and stop this nonsense. Any statements that they cannot stop this trademark are false.
We highly recommend that Breath of Hope, Inc also find a lawyer.