fbpx Preston Poulter responds to Ethan Van Sciver’s motion to dismiss, claims own tweets calling for 'the destruction of #Comicsgate' are only 'purported statements' and 'likely hearsay' - Comicsgate.org

Preston Poulter responds to Ethan Van Sciver’s motion to dismiss, claims own tweets calling for ‘the destruction of #Comicsgate’ are only ‘purported statements’ and ‘likely hearsay’

by 08.22.2021

By Robert Romano

Preston Poulter, via his attorney Francis John Ciaramella, responded on Aug. 18 to Ethan Van Sciver’s motion to dismiss Poulter’s petition to cancel the Comicsgate trademark for use in comic books, once owned by Antonio Malpica (AKA Cridious) but now assigned to Van Sciver, as the proceeding before the Trademark Trial and Appeal Board moves into its next stage.

In his response to the motion to dismiss, Poulter argued that the motion to dismiss was not properly served in accordance with federal trademark trial rules and should either be denied or not even considered. More on that in a moment.

In addition, the response claimed that Poulter’s own suspended applications for the Comicsgate trademark — which Van Sciver says are void ab initio, or from the start, because Poulter knew Comicsgate was being used in commerce years before his applications — are “outside the pleadings,” as are tweets by Poulter from his own Twitter calling for “the destruction of Comicsgate…” which he claims are “purported statements” that are “likely hearsay…” and have not been authenticated and therefore are inadmissible at this stage.

According to Poulter’s response, “Here, the Registrant appears to argue that the Petitioner has not met ‘these prongs’ [showing standing to sue] due to ‘evidence’ in the ‘public record’ that is outside of the pleadings in the case…  Here, however, the purported ‘statements’ relied upon by the Registrant are not only outside the scope of the determination of the legal sufficiency of the complaint but are likely hearsay as well.”

Here, Poulter is referring to Van Sciver’s motion to dismiss that uses Poulter’s tweets and videos — i.e. the “public record” — as evidence that Poulter lacks a bona fide intent to use Comicsgate in commerce, a legal requirement to file an application for a trademark in the first place. The motion to dismiss stated, “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.”

In one of the tweets, Poulter stated, “I am working for the destruction of #comicsgate and would never willing hire anyone associated…” which Van Sciver argued, “[Preston Poulter]’s admitted goal, ‘. . . the destruction of #comicgate,’ is outside its zone of interest”. Indeed, how can Poulter have a bona fide intent to use a trademark in commerce when his purpose was to destroy the already in existence service mark?

Remarkably, Poulter via his attorney Ciaramella complained that his own tweets and videos lack “authentication,” writing, “the ‘evidence’ has not been properly authenticated, introduced, or stipulated to by the parties.”

Van Sciver via his attorney, Scott Houttmeman, replied, “Petitioner is flirting with the boundaries of legal ethics with this stubborn refusal to acknowledge authenticity. Prolonging this proceeding in order to force formal authentication procedures — when Petitioner knows all of the admissions and other exhibits are 100 percent accurate — is to cause unnecessary delay and needlessly increase the cost of litigation in violation of Fed. R. Civ. Pro. 11(b)(1).” [1]

UPDATE, 8/24/21: Additionally, Federal Rules of Civil Procedure 11(b)(4) provides “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances… the denials of factual contentions are warranted on the evidence…” Could Poulter be opening himself up to sanctions under FRCP Rule 11 by pretending his own tweets are “likely hearsay”?

Because they are likely not hearsay. In other words, Poulter is well aware that he owns and operates his Twitter and YouTube accounts, as a casual reading of Poulter’s own statements on these platforms easily shows. Here they are.

On Aug. 19, Poulter on the Twitter account in question, @ComicsJacks, admitted he has two legal actions against Van Sciver: “I currently have 2 separate legal actions against Ethan Van Sciver. One for libel, and one for the Comicsgate trademark. He has filed a Motion to Dismiss in both and I am predicting both will fail. His fans talk a big game.” [emphasis added]

On June 25, he self-identified on his Twitter account that @ComicsJacks is indeed Preston Poulter: “Come meet me, Preston Poulter, down at Albuquerque Comic Con.”

Similarly, on May 22, Poulter stated on Twitter, “It’s great when I, Preston Poulter, get to meet new fans and discuss my work.”

On May 16, Poulter posted a picture from a past Albuquerque Comic Con, again self-identifying: “Here’s a picture of me, Preston Poulter, from the last Albuquerque Comic Con with actual brothers Daniel and Luis Moncada. Going to be great getting back on the road.”

And on April 23, Poulter stated, “Less than a week left to support indie comic book creators like me, Preston Poulter, on @Kickstarter…”

And on April 19, 2019, Poulter again self-identified ownership and operation of his Twitter account: “My name is Preston Poulter and the next comic I am launching will be White Lily #3…”

And for good measure, here’s the YouTube video where he announced on April 23, 2020 he had filed the application for the trademark for the trademark, claiming falsely in the video “The federal government has recognized that I, Preston Poulter, DBA Pocket Jacks Comics… been granted the trademark of Comicsgate in regards to comic books.” [emphasis added]

 


 

In short, Poulter has already authenticated that he owns and operates his social media accounts. And since Poulter had not been granted the trademark, this could be considered a deceptive statement, besides confirming his ownership and operation of his YouTube channel, all in the public record. The fact that it shows he is the owner of the YouTube channel makes it relevant, and might create an opportunity for Van Sciver to show, in view of his other statements, that his true intent is to create public confusion about who owns the mark as a part of his bid for the “destruction of #comicsgate” via what Van Sciver has argued is “brazen trademark piracy.”

Inded, additional public statements by Poulter confirm beyond any doubt he is merely using the trademark application process to troll Comicsgate, on Aug. 19, he tweeted that he was taking wagers on whether Van Sciver would prevail in his motion to dismiss, writing, “Currently offering even money wagers that Ethan’s Motions to Dismiss will go down in flames. #comicsgate #ComicsgateIsAHateGroup…” If Poulter believes “#ComicsgateIsAHateGroup,” what bona fide commercial interest does he really have in it?

On this particular matter, Poulter has absolutely opened himself up to further exposition about who really runs his social media accounts by having his attorney call his own tweets and videos “purported statements and “likely hearsay.” Those statements can be challenged, and may become a part of a limited discovery proposed by Van Sciver’s attorney, Houtteman, who wrote: “Should the Board be reluctant to take judicial notice, the Board could impose a short stay so that the parties can meet and confer to obtain a stipulation of accuracy or, alternatively, the Board can authorize a limited discovery for purpose of requests for admissions for authenticating documents. This is appropriate when the Board’s jurisdiction is at issue.”

So, we’ll see. Then there are the procedural matters brought by Poulter, where his attorney notes he had not been properly served both Van Sciver’s April 15 motion to join the proceeding, which was granted, and the Aug. 2 motion to dismiss. Ciaramella wrote, “for the motion to join filed on April 15, 2021, Petitioner received no service copy from Registrant… While the motion to join is relatively inconsequential in this proceeding, Registrant’s August 2 potentially dispositive motion to dismiss is not.  Again, and after the Board’s July 6, 2021, order cautioning Registrant regarding proper service, Registrant, through their counsel, again failed to serve a copy of the motion to dismiss upon Petitioner… Here, the only way Petitioner’s counsel learned of the Registrant’s motion to dismiss was through the email automatically generated by the ESTTA when the filing was made.  Only upon further investigation did Petitioner’s counsel learn of the motion to dismiss.”

What happened here was Van Sciver’s attorney, Scott Houtteman, submitted both the April 15 motion for Van Sciver to join the proceeding, which was granted on July 6, and the motion to dismiss, directly to the TTAB electronic filing system. This generates an email notification to the opposing attorney on the case, but per section 113.02 of the Trademark Trial and Appeal Board Manual of Procedure, “The notice of filing provided by ESTTA to each party when a submission is made does not substitute for service by the filing party.”

If Poulter’s motion to deny on this narrow procedural ground prevails, it could potentially come back to bite because it would quickly defeat Van Sciver’s motion to dismiss, perhaps in a bid to preclude later testing of Poulter’s standing throughout this particular trial on cancelling Malpica’s old mark.

Houtteman, for his part, seeing the defect, promptly filed a certificate of service for the motion to dismiss on Aug. 18, and on Aug. 19 offered a response to Poulter’s own motion, stating, “Petitioner CSP correctly notes that it was not served a copy of Defendant’s motion on August 2, 2021. (Defendant’s counsel mistakenly believed that, like the federal courts, service could be effected via the Board’s ESTTA filing system, as shown by the wording of his certificate of service.) Defendant’s counsel only learned of the issue when it received Petitioner’s Opposition Brief on August 18, 2021… Petitioner’s counsel was aware, as early as April 15, 2021 and certainly by Aug. 2, 2021, that it was not receiving emails of the motions but he obtained copies from the TTAB docket and chose not to educate Defendant’s counsel until the filing of its brief in opposition on Aug. 18.”

So, here, Van Sciver is noting that Poulter’s attorney knew of this defect at least since Aug. 2, but maybe as early as April 15, but waited anywhere from 16 days to four months to bring the defect to his attorney’s attention.

The public record bears this out too, where in a video description dated April 16, Poulter admitted to receiving Van Sciver’s April 15 motion to join by directly referring to it, proving he was not inconvenienced by the lack of proper service: “Antonio Malpica has assigned all rights under the Comicsgate Trademark to Ethan Van Sciver who has appeared with counsel to oppose me for the possession of the Comicsgate trademark.” [emphasis added] Only four months later is Poulter now pretending he never received that motion.

Still, failure to properly serve has been enough to defeat motions to dismiss in the past, and could be potentially fatal to the motion. Now, the question before TTAB is whether Houtteman curing the motion with proper service while the motion was still pending and proceedings were still suspended will satisfy TTAB. Here, Houtteman cites precedent where TTAB has granted mercy in the past, writing, “In a similar circumstance, a petitioner’s acknowledged failure of service was excused because the petitioner acted promptly to cure its defective filing by its amendment of the proof of service before any deadlines had passed.”

In that case, Equine Touch Foundation, Inc. v. Equinology, Inc., TTAB stated in 2008, “Inasmuch as petitioner acted promptly to cure its acknowledged failure of service, and given the fact that this petition would not be time-barred as of the date of actual compliance with the service requirement, petitioner cured the defective filing by its amendment of the proof of service.  Therefore, the Board will not dismiss this petition as a nullity but instead will accord the petition a new filing date of October 17, 2008, which is the date of such amendment.”

That might be enough to save Van Sciver’s motion to dismiss, but there are certainly also cases where a failure to properly serve a motion to dismiss resulted in the case being dismissed. In 2018, in The Coffee Studio LLC v. Reign LLC dba Coffee Studio, TTAB wrote, “Because Respondent did not effect proper service in accordance with Trademark Rule  2.119, Petitioner’s motion to strike is granted and Respondent’s motion to dismiss will not be considered.” [2]

Of note, in Coffee Studio, the motion to dismiss was defeated by a motion to strike for failure to properly serve it, but Poulter’s attorney only filed a motion to deny the motion to dismiss. n other cases, when something wasn’t properly served it is stricken.

It begs the question, if it wasn’t properly served in Poulter’s eyes, shouldn’t it be stricken? And if it is not stricken, shouldn’t the motion be fully considered on the merits?

On this count, Poulter actually contradicts the proposed remedy. Ciaramella on one hand wrote, “so too should Registrant’s motion to dismiss be given no consideration” (which would mean it’s stricken) and then everywhere else he called for motion denial “Petitioner respectfully requests that Registrant’s Motion be denied.”

The motion cannot be denied if it is not considered. Perhaps Ciaramella was initially going to attempt to have it stricken but then decided otherwise and simply forgot to take out arguments for striking? Either way, it seems like Poulter would rather the motion be considered and denied, rather than stricken, only to be brought up again later.

Now, in terms of outcomes, we’ll have to see how the board rules. If it goes by past precedents, TTAB might simply elect to deny the motion to dismiss but move the question’s related to Poulter’s standing, including his operation of his social media accounts, the trial phase of disclosures and discovery. In Corporacion Habanos v. Rodriguez in 2011, TTAB left proof of standing to trial: “In summary, applicant’s motion to dismiss the petition to cancel for lack of standing is denied.  Petitioners have alleged standing to survive a motion to dismiss, although proof of petitioner’s standing is left to trial.

This might be a potential outcome to watch out for. And since proof of standing could be left to trial and has been in the past, perhaps Poulter and Ciaramella are anxious to have it settled right now on a procedural basis like failure to properly serve rather than on the merits, since it will be easily proven that Poulter owns and operates his social media accounts where like a Bond villain he makes elaborate speeches outlining all of his devious plans for “the destruction of #comicsgate”.

Again, we’ll see. Anything could happen! Stay tuned.

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

References:

[1] Fed. R. Civ. Pro. 11(b)(1).: “By presenting to the court a pleading, written motion, or other paper… an attorney or unrepresented party certifies that…it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation…” https://www.law.cornell.edu/rules/frcp/rule_11

[2] But the Coffee Studio case also noted, “the Board may exercise its inherent authority under individual circumstances to consider a filing on the merits where service issues are present… inherent authority extends from Board’s power to manage its docket, to prevent undue delays, and to regulate conduct of those who appear before it.” It found that “Had we done so here, because we are granting Petitioner’s motion to reopen, as discussed infra, we would deny the motion to dismiss.” In other words, in that case, even if TTAB had heard the motion to dismiss, it would have denied it because it was going to grant the motion to reopen.

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