Ethan Van Sciver via his attorney, Scott Houtteman, has filed on Aug. 2 a motion to dismiss a complaint by Preston Poulter to cancel the federally registered Comicsgate trademark — originally initiated by Antonio Malpica and which Van Sciver currently owns — on the basis that Poulter lacks the standing to sue and that Van Sciver has been the common law trademark owner of Comicsgate since July 2018.

On July 26, the U.S. Patent and Trademark Office (USPTO) resumed proceedings of the trial, with Van Sciver being named a co-defendant in Poulter’s attempt to wrest the Comicsgate trademark away from Malpica as Poulter’s motion for judgment on the pleadings was denied.

Since there could have been default judgment in favor of Poulter, merely resuming the proceedings was at the time a victory for Van Sciver and for Comicsgate as the trial moved forward.

Now, with his latest filing, Van Sciver and Houtteman go on the offensive, seeking to end Poulter’s bid with one swift stroke.

Here, Houtteman argues that Poulter lacks standing, writing, “Petitioner’s applications are void ab initio [from the beginning]. Petitioner filed two applications declaring its intent-to-use the mark Comicsgate. But Petitioner was not the proper party with a bona fide intent to use this mark. The public record, largely a selection of Petitioner’s own admissions, show Comicsgate in commercial use years before Petitioner filed its own applications. Thus, Petitioner is a mere intermeddler, a self-appointed guardian of the trademark register and has no statutory right to bring this cause of action.”

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A note to readers is that demonstrating standing is a preliminary part of the trial. Poulter has to show he is aggrieved by Van Sciver’s ownership of the Comicsgate federal and common law trademarks. Here, Houtteman notes that normally, Poulter’s having applications at the USPTO would be enough to constitute standing, but that, given the facts, this is no normal case, writing: “Ordinarily this is a standard, uncontroversial grounds to seek cancellation of that registration. But this is not an ordinary case.”

One area of attack that Van Sciver and Houtteman are using to argue is by noting that when Poulter filed in April and May 2020, he did so on the basis of an intent to use the Comicsgate trademark in commerce — as opposed to actively using it — and had to swear to the USPTO that nobody else was already using it, specifically, that “no other persons . . . have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.”

But, based on Poulter’s own admissions, he must have known that to be false. Indeed, prior to ever filing for the trademark, Poulter has all but explicitly acknowledged that Van Sciver has always been the owner and operator of the Comicsgate mark in commerce.

For example, on July 7, 2019, Poulter wrote on Twitter, “Group labels serve to solidify the nebulous and varied goals that make up a group’s affiliation. In this case, #Comicsgate is a label which EVS has defined the meaning of the group, as well as defended it against use by unwanted outsiders. His fans make up the vast CG majority.”

Group labels serve to solidify the nebulous and varied goals that make up a group’s affiliation. In this case, #Comicsgate is a label which EVS has defined the meaning of the group, as well as defended it against use by unwanted outsiders. His fans make up the vast CG majority.

— Pocket Jacks Comics (@ComicsJacks) July 7, 2019

Surely, even to Poulter — a self-proclaimed expert of trademark law — that sounds like a trademark. Poulter would later complain he was never allowed to appear on Van Sciver’s YouTube channel to promote his project. Poulter has since attempted to focus on canceling the mark that was once owned by Antonio Malpica but has now been assigned to Van Sciver since April, for use in comic books.

And Poulter also knew it was profitable. On Jan. 7, 2019, more than a year before filing an application for the mark, Poulter in a YouTube video admitted that “the biggest numbers put up on the scoreboard for indie comics” are “dedicated Comicsgate people such as, you know, Ethan Van Sciver…”: “As a small comic creator, you’re going to naturally kind of find yourself, ah, either falling in with, or having to actively reject, the Comicsgate crowd. Because if you’re looking at, you know, the biggest numbers put up on the scoreboard for indie comics, they are going to be dedicated Comicsgate people such as, you know, Ethan Van Sciver and Richard C. Meyer… And, you know, he’s put some impressive numbers up there, not only for himself but also Antonio Bryce with Brand. He was able to take a guy who just had an idea for a comic, and, you know, just some preliminary artwork and get him to now $55,000 on [crowdfunding website] Indiegogo. And so you know there’s certainly that temptation to go, ‘OK I am all on board with Comicsgate.’ . . . ”

 

 

And on and on it goes , with Poulter’s repeated admissions of Van Sciver’s ownership of the Comicgate trademark in use of commerce amusingly providing the bulk of exhibits that Houtteman files with the 11-page motion.

At one point, on Nov. 19, 2019, Poulter promised to “destroy” Comicsgate, again indicating that he thought of Comicsgate as more than just Malpica’s application: “I am working for the destruction of #comicsgate and would never willing hire anyone associated…” How can Poulter “destroy” Comicsgate and simultaneously claim to “own” the Comicsgate trademark for use in commerce?

And as Houtteman notes, Poulter’s use of Comicsgate “is not limited to the destruction of a comic book trademark but includes destruction of the service mark.”

Only to you. Seriously, you alpha males need to report to a safe space to be shielded from respectfully presented opposing views.

Also, I am working for the destruction of #comicsgate and would never willing hire anyone associated. So put your outrage where it belongs.

— Pocket Jacks Comics (@ComicsJacks) November 17, 2019

Van Sciver, via Houtteman, argues that neither Malpica (applied in Sept. 2018) nor Poulter’s (applied in April 2020) applications were ever legitimate, because Van Sciver was using Comicsgate as a service mark since July 2018 on his YouTube show “Comicsgate Live”, and has never stopped using it.

Houttman argues that the service mark in promoting comic books supersedes both Malpica and Poulter’s attempts to apply it solely as a trademark on a comic book label and that Van Sciver’s earlier use must instead be given weight: “Note that Defendant [Van Sciver] uses Comicsgate primarily as a service mark, used in promoting sales of independent comic books. CSP’s applications, on the other hand, use Comicsgate as a trademark for comic books. This is a distinction without a difference. The earlier service mark (promoting comics) precludes the use of the latter trademark (for comics) because the two uses are confusingly similar and cannot coexist in the market under different ownership.”

As a result, Houtteman concludes, “In view of the above, we move the board (1) find CSP’s applications, Ser. No. 88/872,841,
filed April 15, 2020 and Ser No. 88/925,542, filed May 20, 2020 void ab initio because Petitioner CSP is not the proper party with the intent-to-use the mark Comicsgate, (2) dismiss this cancelation proceeding because without its Comicsgate applications Petitioner CSP has no statutory cause of action and (3) take any other action the Board finds just and proper.”

On Aug. 2, Nick Rekieta had Van Sciver on his YouTube channel and praised Houtteman’s work on the motion, stating at 2:11:07, “This is actually a beautiful argument… I can’t overstate that. This is a well done motion because it addresses a lot of things.”

Rekieta added, “What Ethan’s lawyer is suggesting is that the Board should go ahead and say, not only is this wrong, but you should also just go ahead and decide Ethan has a common law mark and in establishing that common law mark, they should go ahead and void entirely Preston’s claims. Because if they don’t do it now, and they say no, Preston has a legitimate claim on this, but then later a subsequent action says no, Ethan actually already had the rights, therefore that would strip jurisdiction from this Board, if a subsequent Board said that [Ethan] had the rights. So what they’re going to say is, rather than doing that in the future, and obviating what was done today, why don’t we just do it now? And then there are legal arguments presented earlier that that say the Board has the power to do this. The Board has the power to consider these things that aren’t the main issue before it because it makes the system work. It makes it works smoothly and that’s why they have it. This actually really well done. ”

 

 

Now, Houtteman’s motion puts the ball back in Poulter’s court to respond and challenge it, and then the decision will go to the Trademark Trial and Appeal Board (TTAB) to either grant the motion to dismiss — which would mean an early victory for Van Sciver — or to say Poulter’s applications constitute sufficient grounds for standing, in which case the trial will proceed apace, perhaps dragging on for months or even years.

Meaning, for the time being, the fate of the Comicsgate trademark will hang in the balance. Stay tuned.

Robert Romano is the Editor-in-Chief of Comicsgate.org.