Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov

ESTTA Tracking number: ESTTA1140458

Filing date: 06/15/2021

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 92074811

Party PlaintiffRyback Reeves

CorrespondenceAddress

MARK BORGHESEBORGHESE LEGAL LTD10161 PARK RUN DRIVE SUITE 150LAS VEGAS, NV 89145UNITED STATESPrimary Email: mark@borgheselegal.comSecondary Email(s): docket@borgheselegal.com702-382-0200

Submission Opposition/Response to Motion

Filer's Name Mark Borghese

Filer's email mark@borgheselegal.com

Signature /MB/

Date 06/15/2021

Attachments Petitioner Opposition to Motion for Summary Judgment.pdf(160756 bytes )Exhibit A - Reeves Decl.pdf(387908 bytes )Exhibit B - 2008-Press Release.pdf(308922 bytes )Exhibit C - 2008-Press Release-2.pdf(217482 bytes )Exhibit D E and F - Videos.pdf(180428 bytes )Exhibit G - Sports Illustrated Article.pdf(3069197 bytes )Exhibit H - TheFamousPeople.pdf(3485858 bytes )Exhibit I - CelebrityInside.pdf(2148750 bytes )Exhibit J - Internet Wrestling Database.pdf(948629 bytes )Exhibit K - KidzSearch.pdf(1131105 bytes )Exhibit L - WWE Webpage.pdf(3265198 bytes )Exhibit M - Wikipedia.pdf(2197283 bytes )Exhibit N - Wrestle Pro Promotion.pdf(711537 bytes )Exhibit O - Destiny World Wrestling Promotion.pdf(752011 bytes )Exhibit P - Collision Course Promotion.pdf(722988 bytes )

Petitioner’s Opposition to Motion for Summary Judgment

Page 1 of 19

THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In the Matter of Trademark Registration No.: 4262738

Mark: RYBACK

Date of Registration: December 18, 2012

Ryback Reeves, )

) Cancellation No: 92074811

)

Petitioner, )

)

vs. )

)

World Wrestling Entertainment, Inc., )

)

Respondent. )

)

PETITIONER’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and TBMP § 528, Petitioner,

Ryback Reeves (“Petitioner” or “Reeves”) hereby opposes respondent’s Motion for Summary

Judgment (“Motion”). As set out in detail below, Respondent has not met its burden with regard

to summary judgment and Respondent’s motion should be denied.

I. STATEMENT OF FACTS AND EVIDENCE

Reeves began his professional wrestling career in 2004 on the wrestling reality TV show

Tough Enough where Petitioner was one of eight finalists on season 4. During the filming of

Tough Enough Petitioner wrestled as Ryan Reeves. See Exhibit 1, Declaration of Ryback Reeves

(“Reeves Decl.”) at ¶ 2.

In January 2005, Reeves entered into a booking contract with World Wrestling

Entertainment, Inc. (“WWE”) as an independent contractor (“2005 Booking Contract”). Reeves

Petitioner’s Opposition to Motion for Summary Judgment

Page 2 of 19

Decl. at ¶ 3. From 2005 until April 2007, Petitioner wrestled for WWE using either his name,

Ryan Reeves, or his childhood nickname, Silverback. Id. Effective April 25, 2007, WWE

terminated the Frist Booking Contract. Reeves Decl. at ¶ 4.

Being dropped as a wrestler from WWE was a setback to Petitioner’s professional goals

and aspirations. Reeves Decl. at ¶ 5. Although disappointing, Reeves used this time to reflect on

his path in life and his choices along the way. Id. It was during this time of self-reflection that

Petitioner created the name RYBACK as a pseudonym for himself as a wrestler – a cross

between his name at the time, Ryan, and his childhood nickname, Silverback. Id. This was a

significant moment for Reeves personally and this new name represented a turning point in his

personal and professional life. Id. Reeves decided to take control of his destiny and be

accountable for his decisions and his life going forward. Id. Petitioner looked into changing his

name from Ryan Reeves to Ryback Reeves at that time but did not have extra money to spend

hiring an attorney and could not justify the expense. Id.

After being dropped as a wrestler from WWE in 2007, Petitioner began wrestling with

his new pseudonym RYBACK for small independent wrestling organizations not affiliated with

WWE. Reeves Decl. at ¶ 6. One such independent wresting organization was Ohio Valley

Wrestling (“OVW”) which was formerly a development league for WWE but had cut ties with

WWE in February 2008. Id. Since Petitioner began using the RYBACK pseudonym as his

wrestling name, the professional wrestling name RYBACK has uniquely and unmistakably

identified Petitioner. Id.

Attached as Exhibits B and C to the Opposition to Motion for Summary Judgment

(“Opposition”) are a true and correct copy of WWE press releases from February 2008

announcing the split from OVW. Reeves Decl. at ¶ 7; See Exhibits B and C.

Petitioner’s Opposition to Motion for Summary Judgment

Page 3 of 19

Attached as Exhibit D to the Opposition is a true and correct copy of a video clip from on

or about July 25, 2008 of Petitioner wresting under his pseudonym RYBACK soon after creating

the name and while not under contract with WWE. Reeves Decl. at ¶ 8; See Exhibit D.

Attached as Exhibit E to the Opposition is a true and correct copy of a video clip from on

or about September 28, 2008 of Petitioner wresting under his pseudonym RYBACK. Reeves

Decl. at ¶ 9; See Exhibit E.

In or about November 2008, Petitioner again signed an independent contractor agreement

with WWE (“2008 Booking Contract”). In late 2008 and early 2009, Petitioner began wresting

for WWE using his pseudonym RYBACK. Reeves Decl. at ¶ 10.

In or about mid-2009, Petitioner briefly wrestled using the pseudonym, Skip Sheffield.

Unlike the name RYBACK, the name Skip Sheffield was developed in 2009 while Petitioner

was under contract with WWE. Reeves Decl. at ¶ 11.

In or about 2012, Petitioner again began professionally wrestling using his pseudonym

RYBACK, a name he created and popularized in 2008 while not under contract with WWE.

Reeves Decl. at ¶ 12.

In 2009, 2010, 2011, and 2013 Petitioner signed new booking contracts with WWE as an

independent contractor. Reeves Decl. at ¶ 13. Each time the contracts were drafted by WWE. Id.

Each time WWE told Petitioner not to seek outside counsel or make any changes to the contract

or Petitioner would not be re-signed with the company. Id. There was always tremendous

pressure for Petitioner to sign the agreements as-is without any changes. Id. WWE even

presented contracts to Petitioner when Petitioner was recovering from injuries and was not in any

condition to be signing legal documents. Id.

/ / /

Petitioner’s Opposition to Motion for Summary Judgment

Page 4 of 19

Reeves’ last match as a professional wrestler for WWE was on or about May 1, 2016 at

the Payback PPV event. Reeves Decl. at ¶ 14. On August 8, 2016, his final booking contract with

WWE ended. Id.

After August 2016, Petitioner continued to professionally wrestle for organizations other

than WWE using his pseudonym RYBACK. Reeves Decl. at ¶ 15.

Attached as Exhibit N to the Opposition is a true and correct copy of a promotion of

Petitioner wrestling as RYBACK after Petitioner was no longer under contract with WWE.

Reeves Decl. at ¶ 37; See Exhibit N.

Attached as Exhibit O to the Opposition is a true and correct copy of a promotion of

Petitioner wrestling as RYBACK after Petitioner was no longer under contract with WWE.

Reeves Decl. at ¶ 38; See Exhibit O.

Attached as Exhibit P to the Opposition is a true and correct copy of a promotion for a

meet and greet with Petitioner after Petitioner was no longer under contract with WWE. Reeves

Decl. at ¶ 39; See Exhibit P.

Since Petitioner left WWE in August 2016, no other wrestler for WWE has used the

name RYBACK, nor was there any WWE wrestler prior to Petitioner using the name RYBACK.

Reeves Decl. at ¶ 17.

The RYBACK name was developed independently by Petitioner in 2007 and 2008 and

since that time has identified only Petitioner in the professional wrestling world. Fans, WWE,

and Petitioner all use the name RYBACK as Petitioner’s name and ring name. Reeves Decl. at ¶

18. In late 2016, Petitioner legally changed his name to Ryback Reeves and continued to use the

name RYBACK for entertainment services. Reeves Decl. at ¶ 16.

Attached as Exhibit G to the Opposition is an article from Sports Illustrated, si.com,

Petitioner’s Opposition to Motion for Summary Judgment

Page 5 of 19

published on September 12, 2016 identifying Petitioner as RYBACK. Reeves Decl. at ¶ 30; See

Exhibit G.

Attached as Exhibit H to the Opposition is a true and correct copy of a webpage from

TheFamousPeople.com identifying Petitioner as RYBACK. Reeves Decl. at ¶ 31; See Exhibit H.

Attached as Exhibit I to the Opposition is a true and correct copy of a webpage from

CelebrityInside.com identifying Petitioner as RYBACK. Reeves Decl. at ¶ 32; See Exhibit I.

Attached as Exhibit J to the Opposition is a true and correct copy of a webpage from the

Internet Wrestling Database identifying Petitioner as RYBACK. Reeves Decl. at ¶ 33; See

Exhibit J.

Attached as Exhibit K to the Opposition is a true and correct copy of a webpage from the

KidzSearch identifying Petitioner as RYBACK. Reeves Decl. at ¶ 34; See Exhibit K.

Attached as Exhibit M to the Opposition is a true and correct copy of a Wikipedia article

identifying Petitioner as RYBACK. Reeves Decl. at ¶ 36; See Exhibit M.

Every use by WWE of the name RYBACK is a reference to Petitioner. Reeves Decl. at ¶

19. The professional wrestling name RYBACK has always only referred to Petitioner. Id.

When WWE filed for the trademark RYBACK in 2011, it knew that RYBACK was

Petitioner’s pseudonym that Reeves developed independently and wrestled with independently

while not signed to a WWE contract. Reeves Decl. at ¶ 20. Petitioner never consented to WWE

filing a trademark application for his pseudonym, RYBACK. Id.

On June 18, 2019, when WWE filed its Section 8 Declaration for the mark RYBACK

(“Section 8 Declaration”), WWE knew that Petitioner had last wrested for WWE on or about

May 1, 2016, more than three years ago. Reeves Decl. at ¶ 21. On June 18, 2019, WWE knew

that the name RYBACK unquestionably referred to Petitioner and that Petitioner had not been

Petitioner’s Opposition to Motion for Summary Judgment

Page 6 of 19

under contract with WWE for nearly three (3) years. Id. On June 18, 2019, WWE knew that

Petitioner continued to wrestle independently as RYBACK and that no WWE wrestler was using

the name RYBACK. Id.

The photographs and video stills WWE used as a specimen of continued use for its

Section 8 Declaration for the mark RYBACK filed on June 18, 2019, are photographs and videos

of Petitioner. Reeves Decl. at ¶ 22. These photos and videos were more than three (3) years old

on June 18, 2019 and did not represent any current use of the mark RYBACK. Id; Reeves Decl.

at ¶ 29; See Exhibit F. Reeves Decl. at ¶ 35; See Exhibit L.

On June 18, 2019, WWE knew that it was not using the mark RYBACK and had no

intention of resuming use of the mark RYBACK for “wrestling exhibitions and performances by

a professional wrestler.” Reeves Decl. at ¶ 23. On June 18, 2019, WWE knew that there had been

no use of the mark RYBACK associated with any WWE entertainment services for more than

three (3) years. Id.

On June 18, 2019, WWE knowingly made a false material representation with the intent

to deceive the Patent and Trademark Office when WWE claimed the mark RYBACK was in use

in commerce by WWE for “wrestling exhibitions and performances by a professional wrestler.”

Reeves Decl. at ¶ 24.

On June 18, 2019, WWE knew that it was not using the mark RYBACK for, “providing

wrestling news and information via a global computer network.” Reeves Decl. at ¶ 25.

WWE has never used the name RYBACK for “providing wrestling news and information

via a global computer network.” Reeves Decl. at ¶ 26.

On June 18, 2019, WWE knowingly made a false material representation with the intent

to deceive the Patent and Trademark Office when WWE claimed the mark RYBACK was in use

Petitioner’s Opposition to Motion for Summary Judgment

Page 7 of 19

in commerce by WWE for “providing wrestling news and information via a global computer

network.” Reeves Decl. at ¶ 27.

Since Petitioner created the name RYBACK in 2007 and 2008, WWE knew that the

name RYBACK uniquely and unmistakably referred to Petitioner. Each photograph and video

frame of RYBACK in WWE’s exhibits to its Motion is a photograph or video of Petitioner.

Reeves Decl. at ¶ 28.

Attached as Exhibit L to the Opposition is a true and correct copy of a webpage from

WWE identifying Petitioner as RYBACK. Reeves Decl. at ¶ 35; See Exhibit L.

Attached as Exhibit F to the Opposition is a true and correct copy in mp4 and avi formats

of the RYBACK entrance video, a still frame of which appears as an example of use in the

WWE Section 8 Declaration, identifying Petitioner as RYBACK. Reeves Decl. at ¶ 29; See

Exhibit F.

II. ARGUMENT

A. Summary Judgment Standard

Summary judgment is appropriate when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). The

party seeking summary judgment must first identify grounds to show the absence of any genuine

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L.Ed.2d 265

(1986).

In considering the propriety of summary judgment, the Board may only ascertain whether

material issues of fact are present but may not resolve those issues. The evidence in the record

must be viewed in the light most favorable to the nonmoving party. Old Tyme Foods Inc. v.

Petitioner’s Opposition to Motion for Summary Judgment

Page 8 of 19

Roundy’s Inc., 961 F.2d 200, 22 U.S.P.Q.2d 1542 (Fed. Cir. 1992).

As set out in detail below, Respondent has not met its burden with regard to summary

judgment on any of Petitioner’s claims and Respondent’s motion should be denied.

B. Section 2(c): Name Identifying a Particular Living Individual

Petitioner’s first claim is pursuant to Section 2(c) of the Trademark Act, 15 U.S.C. §

1052(c). Petitioner alleges that when WWE filed the application for the RYBACK mark, U.S.

Registration No. 4262738 on October 12, 2011, the name RYBACK unquestionably referred to

Petitioner and Petitioner did not consent to the filing of the application by WWE.

1. Ryback uniquely and unmistakably identifies Petitioner.

As detailed in Section I, supra, Reeves created the pudendum RYBACK in 2007 and

2008 while he was not under contract with WWE and began professionally wresting with that

pseudonym. Reeves Decl. at ¶ 5-9. Since creating the RYBACK pseudonym in 2007 and 2008,

the professional wrestling name RYBACK uniquely and unmistakably identifies Petitioner.

Reeves Decl. at ¶¶ 6, 18, 28 - 39; See Exhibits F – P.

Section 2(c) of the Trademark Act, 15 U.S.C. § 1052(c), provides the following:

No trademark by which the goods of the applicant may be distinguished from the

goods of others shall be refused registration on the principal register on account of

its nature unless it ... (c) Consists of or comprises a name, portrait, or signature

identifying a particular living individual except by his written consent, or the

name, signature, or portrait of a deceased President of the United States during the

life of his widow, if any, except by the written consent of the widow.

Lanham Act § 2(c), 15 U.S.C. § 1052(c).

In Respondent’s Motion, Respondent argues that RYBACK does not identify a particular

living individual. This allegation is not supported by Respondent’s evidence. Respondent argues

that use of RYBACK is analogous to the fictional character James Bond played by multiple

actors in the famous movie series. This analogy fails for several reasons. First, James Bond is a

Petitioner’s Opposition to Motion for Summary Judgment

Page 9 of 19

fictional character created by author Ian Fleming for a series of books. This is in stark contrast to

the name RYBACK which was created by Petitioner as a pseudonym for himself. Reeves Decl.

at ¶ 5. Second, unlike the multiple actors who have played James Bond, there is no evidence that

any other WWE wresters have ever used the name RYBACK. In fact, the opposite is true.

Reeves Decl. at ¶ 17.

Moreover, for purposes of Section 2(c), a “name” does not have to be the full name of an

individual. Section 2(c) applies not only to full names, but also first names, surnames, shortened

names, pseudonyms, stage names, titles, or nicknames. See In re Sauer, 27 USPQ2d 1073

(TTAB 1993), aff’d, 26 F.3d 140 (Fed. Cir. 1994) (holding registration of a mark containing BO,

used in connection with a sports ball, barred under Section 2(c) in the absence of consent to

register, because BO is the nickname of a well-known athlete and thus use of the mark would

lead to the assumption that he was associated with the goods); John Anthony, Inc. v. Fashions by

John Anthony, Inc., 209 USPQ 517, 525 (TTAB 1980) (“[W]hen a name or pseudonym has

come to be recognized in a certain field of business as identifying a particular living individual,

the individual possesses a valuable property right in that name, and the courts will not allow the

name to be appropriated or commercially exploited by another without his consent.”).

Here the evidence of record demonstrates that the name RYBACK has identified

Petitioner since 2008. Trademark Act Section 2(c) bars registration on either the Principal or

Supplemental Register of an applied-for mark that consists of or comprises a name, portrait, or

signature identifying a particular individual without that individual’s written consent. As

explained above, Section 2(c) applies not only to the full name of an individual, but also to any

first name, surname, shortened name, pseudonym, stage name, title, or nickname that identifies a

particular living individual.

Petitioner’s Opposition to Motion for Summary Judgment

Page 10 of 19

Reeves never consented to the registration of the mark RYBACK by WWE. Reeves Decl.

at ¶ 20. Moreover, there is no written consent signed by Reeves of record in the file-wrapper of

the Registration. (See file-wrapper of Registration No. 4262738 which is automatically of record

in this Cancellation action).

2. The Booking Contracts do not constitute written consent.

Respondent next argues that even if RYBACK identifies Petitioner, Reeves provided

written consent to registration by signing one or more of the WWE independent contractor

agreements. Respondent’s arguments, however, ignore the plain language of the WWE Booking

Contracts which distinguish between WRESTLER intellectual property, including names created

by petitioner while not under contract with WWE, and PROMOTER Intellectual Property, which

only includes intellectual property “procured, owned, or created” by WWE.

Each of the WWE Booking Contracts define “WRESTLER Intellectual Property” as:

All service marks, trademarks and other distinctive and identifying indicia used

by WRESTLER prior to the Effective Date in connection with the business of

professional wrestling, including but not limited to WRESTLER's legal name,

nickname, ring name, likeness, personality, character, caricatures, signature,

costumes, props, gimmicks, gestures, routines and themes, which are owned by

WRESTLER or in which WRESTLER has any rights anywhere in the world

(collectively, the "WRESTLER Intellectual Property") are described and

identified on Exhibit A attached hereto and incorporated herein by reference.

See Exhibits 7-9 at Section 3.1 (emphasis added).

The plain language of the WWE Booking Contracts, clearly states that all distinctive and

identifying indicia used by WRESTLER while not under contract with WWE is WRESTLER

Intellectual Property. As explained in detail in Section I, supra, the evidence in this case is that

Petitioner created the name RYBACK as a pseudonym for himself while not under contract with

WWE and the mark RYBACK was extensively used and popularized by Petitioner prior to re-

signing with WWE. Reeves Decl. at ¶ 5-9; Exhibits B – E.

Petitioner’s Opposition to Motion for Summary Judgment

Page 11 of 19

WRESTLER Intellectual Property is in contrast to PROMOTER Intellectual Property

which only includes intellectual property “procured, owned, or created” by WWE. Each of the

WWE Booking Contracts define “PROMOTER Intellectual Property” as:

Except for the WRESTLER Intellectual Property specifically set forth on Exhibit

A, any intellectual property rights, including but not limited to trademarks, service

marks, copyrighted works, and/or distinctive and identifying indicia, including

ring name, nickname, likeness, personality, character, caricatures, signature,

props, gestures, routines, themes, incidents, dialogue, actions, gags, costumes or

parts of costumes, accessories, crowns, inventions, championship, title or other

belts (if applicable), and any other items of tangible or intangible property written,

composed, submitted, added, improvised, created and/or used by or associated

with WRESTLER's performance in the business of professional wrestling or

sports entertainment which were procured, owned or created by PROMOTER

during the Term or those which were procured, owned or created by

PROMOTER prior to the Term and which are described and identified on

Exhibit B attached hereto and incorporated herein by reference (collectively the

"PROMOTER Intellectual Property") shall belong to PROMOTER, in perpetuity,

with PROMOTER retaining all such ownership rights exclusively throughout the

world notwithstanding any termination of this Agreement.

See Exhibits 7-9 at Section 3.2 (emphasis added).

By the plain language of the Booking Contracts, in order for any intellectual property to

be considered “PROMOTER Intellectual Property,” it must have been “procured, owned or

created” by PROMOTER. Since the pseudonym RYBACK was created by Petitioner while not

under contract with WWE, the pseudonym RYBACK clearly meets the definition of

WRESTLER Intellectual Property and not PROMOTER Intellectual Property.

The fact that the 2008 Booking Contract did not list RYBACK on any of the exhibits

(despite Petitioner having already developed and extensively used the pudendum RYBACK)

does not change the definitions of WRESTLER Intellectual Property or PROMOTER

Intellectual Property in the contract. Nor does the fact that the 2010 Booking Contract

mistakenly lists RYBACK on the wrong exhibit despite being WRESTLER Intellectual Property

and not PROMOTER Intellectual Property.

Petitioner’s Opposition to Motion for Summary Judgment

Page 12 of 19

Moreover, to the extent that there is any ambiguity in the Booking Contracts, any such

ambiguity should be construed against WWE who drafted the agreements and often used

questionable tactics to obtain Reeves’ signature on the agreements. Reeves Decl. at ¶ 13; Turner

Constr. Co. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004) (“When a dispute arises as to

the interpretation of a contract and the contractor's interpretation of the contract is reasonable, we

apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are

subject to more than one reasonable interpretation be construed against the party who drafted the

document.”)

As set out above, the name RYBACK -- especially in professional wrestling -- uniquely

and unmistakably identifies Petitioner and Respondent failed to obtain written consent from

Petitioner to file the trademark application for RYBACK. Reeves Decl. at ¶ 5-9, 18, 20.

The facts of record support a finding that Respondent filed the trademark application

RYBACK in violation of Section 2(c) of the Trademark Act, 15 U.S.C. § 1052(c). Respondent

has not presented sufficient evidence to show the absence of any genuine issue of material fact

on this claim. Moreover, at a minimum, the above facts viewed in the light most favorable to

Petitioner create questions of fact on this issue. Respondent’s motion for summary judgment

should therefore be denied.

C. Section 2(a): False Suggestion of a Connection

Petitioner’s second claim is pursuant to Section 2(a) of the Trademark Act, 15 U.S.C. §

1052(a). The evidence of this case is that the RYBACK mark, U.S. Registration No. 4262738,

unquestionably refers to Petitioner. Petitioner is no longer an independent contractor with WWE

and has not been for nearly five (5) years. Reeves Decl. at ¶ 14. Although WWE has not

continued to use the RYBACK mark for entertainment services (as explained in detail in Section

Petitioner’s Opposition to Motion for Summary Judgment

Page 13 of 19

II. D., infra), Reeves’s connection would be presumed should WWE make any further use of the

mark.

Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), provides the following:

No trademark by which the goods of the applicant may be distinguished from the

goods of others shall be refused registration on the principal register on account of

its nature unless it … (a) Consists of or comprises … matter which may …falsely

suggest a connection with persons, living or dead…

Lanham Act § 2(a), 15 U.S.C. § 1052(a).

In arguing for summary judgment as to this claim, WWE again argues that name

RYBACK is not associated with Petitioner. This argument is not supported by the evidence of

record. Rather, the evidence in this case is that since Petitioner created his RYBACK pseudonym

in 2007 and 2008, the professional wrestling name RYBACK uniquely and unmistakably

identifies Petitioner. Reeves Decl. at ¶¶ 6, 18, 28 - 39; See Exhibits F – P. (Additional arguments

concerning this point are contained in Sections I and II. B. 1., supra, and are incorporated by

reference.)

Respondent next argues that even if RYBACK refers to Petitioner, the connection with

WWE is not a false one. Respondent ignores the fact that Petitioner wrestled as RYBACK both

before and after working as an independent contractor for WWE. Moreover, Respondent did not

have authority to file for Petitioner’s pseudonym and Petitioner, has not worked as an

independent contractor for WWE for nearly five years. Reeves Decl. at ¶ 5-9; 14-15.

While WWE has not used the mark RYBACK for entertainment services since Petitioner

left WWE in 2016, any future use by Respondent would be a false one. (See Section II. D., infra,

for details of WWE’s non-use). If Respondent started promoting a future wresting event

“featuring RYBACK” not involving Petitioner, such use would falsely suggest a connection with

Reeves. This type of trademark use of the name RYBACK for entertainment services is wholly

Petitioner’s Opposition to Motion for Summary Judgment

Page 14 of 19

distinct from the fair use of WWE merely identifying Petitioner by using his name RYBACK in

various past videos and performances of Reeves (the same as Reeves can state that he formerly

wrestled for WWE or was formerly the WWE Intercontinental Champion).

Finally, Respondent again argues that Petitioner consented to the registration of

RYBACK through the Booking Contracts. As explained in detail in Section II. B, supra, the

evidence in this case is that the pseudonym RYBACK was created and used by Petitioner for

professional wrestling while not under contract with Respondent and Petitioner did not consent

to WWE filing a trademark application for his pseudonym. Reeves Decl. at ¶ 5-9, 20; Exhibits B

– E.

The facts of record support a finding that Respondent filed and is maintaining the

trademark application RYBACK in violation of Section 2(a) of the Trademark Act, 15 U.S.C. §

1052(a). Respondent has not presented sufficient evidence to show the absence of any genuine

issue of material fact on this claim. Moreover, at a minimum, the above facts viewed in the light

most favorable to Petitioner create questions of fact on this issue. Respondent’s motion for

summary judgment should therefore be denied.

D. Abandonment

Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides that a mark shall be deemed

“abandoned” when:

its use has been discontinued with intent not to resume such use. Intent not to

resume may be inferred from the circumstances. Nonuse for 3 consecutive years

shall be prima facie evidence of abandonment. “Use” of a mark means the bona

fide use of such mark made in the ordinary course of trade, and not made merely

to reserve a right in a mark.

Lanham Act § 45, 15 U.S.C. § 1127.

Here the evidence of record is that WWE last made any use of the name RYBACK for

Petitioner’s Opposition to Motion for Summary Judgment

Page 15 of 19

“wrestling exhibitions and performances by a professional wrestler” on or about May 1, 2016

when Petitioner last performed as a wrestler for WWE. Reeves Decl. at ¶¶ 14 – 17. In addition,

the evidence of record is that WWE never used the name RYBACK for “providing wrestling

news and information via a global computer network.” Reeves Decl. at ¶ 26.

In claiming it has continued to use RYBACK for these services, WWE merely presents

hearsay screen shots of WWE web pages where WWE identifies Petitioner as RYBACK in

various past videos and performances of Reeves more than five years old. WWE’s testimony on

this issue consists of the following:

19. While Petitioner was performing as WWE's "Ryback" character, WWE used

the Mark in connection with, among other things, live wrestling matches, taped

matches, vignettes or promos that aired on WWE programming and online in

connection with wrestling news articles and stories.

20. During the periods in which Petitioner was not performing as WWE's

"Ryback" character, including since his departure from WWE in 2016, WWE has

used the Mark in connection with providing the public with past WWE

programming and wrestling news and stories through its various distribution

channels, including the WWE Network and online platforms.

See Declaration of Lauren A. Dienes-Middlen.

This testimony and the other evidence submitted by Respondent is not sufficient to show

that Respondent is actively using the mark RYBACK for its Class 41 services or that it has made

any use of the mark RYBACK for its Class 41 services since 2016. Moreover, the Petitioner’s

evidence submitted as part of this Opposition contradicts and refutes Respondent’s claims.

The evidence of from Petitioner -- which must be viewed in the light most favorable to

Petitioner -- is that since 2016 WWE merely uses the name RYBACK to accurately refer to

Petitioner and not as a trademark or servicemark. WWE’s evidence from more than five years

ago is not sufficient to support WWE’s argument it continues to use the mark RYBACK in

commerce for “wrestling exhibitions and performances by a professional wrestler” or for

Petitioner’s Opposition to Motion for Summary Judgment

Page 16 of 19

“providing wrestling news and information via a global computer network.”

In making its claim of non-abandonment WWE disingenuously argues that past videos

and performances of Reeves which still exist on WWE’s website are current use of the mark

RYBACK for “wrestling exhibitions and performances by a professional wrestler” and for

“providing wrestling news and information via a global computer network.”

This is incorrect. Not only is the evidence out-of-date, but as to the entertainment

services, “wrestling exhibitions and performances by a professional wrestler” those services must

be live and an old recording is not a live performance. Section 1402.11(g) (2014) of the

Trademark Manual of Examining Procedure provides (emphasis added):

For entertainment services such as those rendered by a musical group, the

performance must be live. The recording of a live concert or studio performance

is not considered a service of the performing group. Similarly, performances for

the sole purpose of recording are not considered services.

See also In re Titan Music, Inc., No. 77344197 (T.T.A.B. Aug. 20, 2014) [not precedential]

(“[F]or entertainment services such as those rendered by a musical band, the performance must

be live. And while a performance can be recorded, the recording is not itself a performance.”)

As to the services, “providing wrestling news and information via a global computer

network” the evidence from Petitioner is that WWE never used RYBACK for those services.

Reeves Decl. at ¶ 26. As evidence of use, WWE again presents a hearsay webpage with

information about Petitioner. This is not sufficient evidence of actual use of RYBACK for the

information service, “providing wrestling news and information.”

WWE’s webpage about Petitioner is akin to a company providing information about

historical products or services—not actually providing a separate informational service. See,

e.g., In re Reichhold Chems., Inc., 167 USPQ 376 (TTAB 1970) ("promoting the sale and use of

Petitioner’s Opposition to Motion for Summary Judgment

Page 17 of 19

chemicals" is not a registrable service, where applicant is merely providing "technical bulletins"

that contain information about its own products).

The facts of record support a finding that Respondent has abandoned use of the mark

RYBACK. Respondent has not presented sufficient evidence to show the absence of any genuine

issue of material fact on this claim. Moreover, at a minimum, the above facts viewed in the light

most favorable to Petitioner create questions of fact on this issue. Respondent’s motion for

summary judgment should therefore be denied.

E. Fraud

As to Petitioner’s fraud claim, WWE merely argues, “in the face of that established

continued use, there can be no finding of abandonment or fraud on the PTO.” Respondent

Motion, p. 18. WWE makes no other arguments regarding the fraud claim in its brief. As set out

in Section II. D., supra, the evidence from Petitioner in this case is that WWE has abandoned

any use of the mark RYBACK for “wrestling exhibitions and performances by a professional

wrestler” and has never used the mark for any information service, such as, “providing wrestling

news and information via a global computer network.”

Moreover, the evidence from Petitioner is that WWE in filing its Section 8 Declaration

made one or more false material representations of fact with the intent to deceive the PTO.

Reeves Decl. ¶¶ 21 – 27.

The facts of record support a finding that Respondent committed fraud when filing its

Section 8 Declaration for RYBACK. Respondent has not presented sufficient evidence to show

the absence of any genuine issue of material fact on this claim. Moreover, at a minimum, the

above facts viewed in the light most favorable to Petitioner create questions of fact on this issue

and Respondent’s motion for summary judgment should be denied.

Petitioner’s Opposition to Motion for Summary Judgment

Page 18 of 19

III. CONCLUSION

For the forgoing reasons, Respondent’s Motion for Summary Judgment should be denied

in its entirety.

Respectfully submitted,

Date: 06/15/2021 By: /Mark Borghese/

Mark Borghese, Esq.

Borghese Legal, Ltd.

10161 Park Run Drive, Suite 150

Las Vegas, Nevada 89145

Petitioner’s Opposition to Motion for Summary Judgment

Page 19 of 19

CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing PETITIONER’S

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT has been served on the

attorney of record for Respondent on June 15, 2021 by email to:

Curtis B. Krasik, Esq.

Christopher M. Verdini, Esq.

K&L GATES LLP

K&L Gates Center

210 Sixth Avenue

Pittsburgh, PA 15222

Email: Litigation.Docketing@klgates.com;

christopher.verdini@klgates.com; curtis.krasik@klgates.com

/s/ Mark Borghese

Mark Borghese

EXHIBIT A

Reeves Declaration

Declaration of Ryback Reeves

Page 1 of 6

DECLARATION OF RYBACK REEVES

I, RYBACK REEVES, hereby declare and state as follows:

1. I am over the age of eighteen years and am the Petitioner in Cancellation No.

92074811. I make these statements from my own personal knowledge.

2. I began my professional wrestling career in 2004 on the wrestling reality TV show

Tough Enough where I was one of eight finalists on season 4. During the filming of Tough

Enough I wrestled as Ryan Reeves.

3. In January 2005, I entered into a booking contract with World Wrestling

Entertainment, Inc. (“WWE”) as an independent contractor (“2005 Booking Contract”). From

2005 until April 2007, I wrestled for WWE using either my name Ryan Reeves or my childhood

nickname, Silverback.

4. On April 25, 2007, WWE terminated the Frist Booking Contract.

5. Being dropped as a wrestler from WWE was a setback to my professional goals

and aspirations. Although disappointing, I used this time to reflect on my path in life and my

choices along the way. It was during this time of self-reflection that I created the pseudonym

Ryback for myself – a cross between my name at the time, Ryan, and my childhood nickname,

Silverback. This was a significant moment for me personally and this new name represented a

turning point in my life. I decided to take control of my destiny and be accountable for my

decisions and my life going forward. I looked into changing my name from Ryan Reeves to

Ryback Reeves at that time but did not have extra money to spend hiring an attorney and could

not justify the expense.

6. After being dropped as a wrestler from WWE in 2007, I began wrestling as

Ryback for small independent wrestling organizations not affiliated with WWE. One such

Declaration of Ryback Reeves

Page 2 of 6

independent wresting organization was Ohio Valley Wrestling (“OVW”) which was formerly a

development league for WWE, but had cut ties with WWE in February 2008. Since I created the

Ryback pseudonym in 2007 and 2008, the professional wrestling name Ryback uniquely and

unmistakably identifies me.

7. Attached as Exhibits B and C to the Opposition to Motion for Summary Judgment

(“Opposition”) are a true and correct copy of WWE press releases from February 2008

announcing WWE’s the split from OVW.

8. Attached as Exhibit D to the Opposition is a true and correct copy of a video clip

from on or about July 25, 2008 of me wresting for OVW soon after I began using my pseudonym

Ryback professionally.

9. Attached as Exhibit E to the Opposition is a true and correct copy of a video clip

from on or about September 28, 2008 of me wresting under my pseudonym Ryback.

10. In or about November 2008, I again signed with WWE (“2008 Booking Contract”)

as an independent contractor. In late 2008 and early 2009, I began wresting for WWE using my

pseudonym Ryback.

11. In or about mid-2009, I briefly wrestled using the pseudonym, Skip Sheffield.

Unlike the Ryback, the name Skip Sheffield was developed in 2009 while I was under contract

with WWE.

12. In or about 2012, I again began professionally wrestling using my pseudonym

Ryback a name I created and popularized in 2008 while not under contract with WWE.

13. In 2009, 2010, 2011, and 2013 I signed new booking contracts with WWE as an

independent contractor. Each time the contracts were drafted by WWE. Each time WWE told me

not to seek outside counsel or make any changes to the contract or I would not be re-signed with

Declaration of Ryback Reeves

Page 3 of 6

the company. There was always tremendous pressure to sign the agreements as-is without any

changes. WWE even presented contracts to me when I was recovering from injuries and was not

in any condition to be signing legal documents.

14. My last match as a professional wrestler for WWE was on or about May 1, 2016 at

the Payback PPV event. On August 8, 2016, my final booking contract with WWE ended.

15. After August 2016, I continued to professionally wrestle for organizations other

than WWE using my pseudonym Ryback.

16. In late 2016, I legally changed my name to Ryback Reeves and continued to use

the name Ryback for entertainment services.

17. Since I left WWE in August 2016, no other wrestler for WWE has used the name

Ryback, nor was there any WWE wrestler prior to me using the name Ryback.

18. The Ryback name was developed independently by me in 2007 and 2008 while not

under contract with WWE and since that time has identified only me in the professional wrestling

world. Fans and WWE all use the name Ryback to exclusively refer to me.

19. Every use by WWE of the name Ryback is a reference to me. The professional

wrestling name Ryback has always only referred to me.

20. When WWE filed for the trademark Ryback in 2011, it knew that Ryback was my

pseudonym that I developed independently and wrestled with independently while not signed to a

WWE contract. I never consented to WWE filing a trademark application for my pseudonym

Ryback.

21. On June 18, 2019, when WWE filed its Section 8 Declaration for the mark Ryback

(“Section 8 Declaration”), WWE knew that I had last wrested for WWE on or about May 1, 2016,

more than three years ago. On June 18, 2019, WWE knew that the name Ryback unquestionably

Declaration of Ryback Reeves

Page 4 of 6

referred to me and that I had not been under contract with WWE for nearly three (3) years. On

June 18, 2019, WWE knew that I continued to wrestle independently as Ryback and that no

WWE wrestler was using the name Ryback.

22. The photographs and video stills WWE used as a specimen for its Section 8

Declaration for the mark Ryback filed on June 18, 2019, are photographs and videos of me. These

photos and videos were more than three (3) years old on June 18, 2019 and did not represent any

current use of the mark Ryback.

23. On June 18, 2019, WWE knew that it was not using the mark Ryback and had no

intention of resuming use of the mark Ryback for “wrestling exhibitions and performances by a

professional wrestler.” On June 18, 2019, WWE knew that there had been no use of the mark

Ryback associated with any WWE entertainment services for more than three (3) years.

24. On June 18, 2019, WWE knowingly made a false material representation with the

intent to deceive the Patent and Trademark Office when WWE claimed the mark Ryback was in

use in commerce by WWE for “wrestling exhibitions and performances by a professional

wrestler.”

25. On June 18, 2019, WWE knew that it was not using the mark Ryback for,

“providing wrestling news and information via a global computer network.”

26. WWE has never used the name Ryback for “providing wrestling news and

information via a global computer network.”

27. On June 18, 2019, WWE knowingly made a false material representation with the

intent to deceive the Patent and Trademark Office when WWE claimed the mark Ryback was in

use in commerce by WWE for “providing wrestling news and information via a global computer

network.”

Declaration of Ryback Reeves

Page 5 of 6

28. Since I created the name Ryback in 2007 and 2008, WWE knew that the name

Ryback uniquely and unmistakably referred to me. Each photograph and video frame of Ryback

in WWE’s exhibits to its Motion for Summary Judgment is a photograph or video of me.

29. Attached as Exhibit F to the Opposition is a true and correct copy in mp4 and avi

formats of the Ryback entrance video, a still frame of which appears as a specimen of use in the

WWE Section 8 Declaration, identifying me as Ryback.

30. Attached as Exhibit G to the Opposition is an article from Sports Illustrated,

si.com, published on September 12, 2016 identifying me as Ryback.

31. Attached as Exhibit H to the Opposition is a true and correct copy of a webpage

from TheFamousPeople.com identifying me as Ryback.

32. Attached as Exhibit I to the Opposition is a true and correct copy of a webpage

from CelebrityInside.com identifying me as Ryback.

33. Attached as Exhibit J to the Opposition is a true and correct copy of a webpage

from the Internet Wrestling Database identifying me as Ryback.

34. Attached as Exhibit K to the Opposition is a true and correct copy of a webpage

from the KidzSearch identifying me as Ryback.

35. Attached as Exhibit L to the Opposition is a true and correct copy of a webpage

from WWE identifying me as Ryback.

36. Attached as Exhibit M to the Opposition is a true and correct copy of a Wikipedia

article identifying me as Ryback.

37. Attached as Exhibit N to the Opposition is a true and correct copy of a promotion

of me continuing to wrestle as Ryback after I was no longer under contract with WWE.

EXHIBIT B

2008 WWE Press Release

EXHIBIT C

2008 WWE Press Release / Archive.org

EXHIBITS D, E, and F DVD CONTENT: (Sent by mail)

Exhibit D - July 25, 2008 - OVW SUMMER SIZZLER SERIES SIX

FLAGS.mp4 Exhibit D - July 25, 2008 - OVW SUMMER SIZZLER SERIES SIX

FLAGS.avi Exhibit E- September 28, 2008 - OVW TV.mp4

Exhibit E- September 28, 2008 - OVW TV.avi

Exhibit F - Ryback Entrance Video.mp4

Exhibit F - Ryback Entrance Video.avi

EXHIBIT G

Sports Illustrated Article / si.com

RYBACK 0037

RYBACK 0038

RYBACK 0039

RYBACK 0040

RYBACK 0041

EXHIBIT H

TheFamousPeople

RYBACK 0023

RYBACK 0024

EXHIBIT I

CelebrityInside

RYBACK 0029

EXHIBIT J

Internet Wrestling Database

RYBACK 0044

EXHIBIT K

KidzSearch

RYBACK 0045

EXHIBIT L

WWE Webpage

RYBACK 0050

EXHIBIT M

Wikipedia

EXHIBIT N

Wrestle Pro Promotion

RYBACK 0005

EXHIBIT O

Destiny World Wrestling Promotion

RYBACK 0001

EXHIBIT P

Collision Course Promotion

RYBACK 0002