Allegation of Use

“Rights in a trademark are determined by the date of the mark's first use in commerce. The party who first uses a mark in commerce is said to have priority over other users.”  Hana Fin., Inc. v. Hana Bank, 135 S. Ct. 907, 190 L.Ed.2d 800 (2015).  The fact that trademark rights are conferred on the first individual or organization to use the mark in commerce is the blackest of black letter law with only a very few, very particular exceptions – like tacking.  Organic Costaflores S.A.’s version of it’s open source OpenVino went live, internationally, and in America, on May 6th, 2018.  By ‘going live,’ I mean that Organic Costaflores S.A, began utilizing OpenVino to facilitate the sale of MTB18 cryptocurrency tokens during their Initial Coin Offering on May 6^th, 2018.  An Initial Coin Offering is like a company’s Initial Public Offering, but instead of offering stock at a set price, Organic Costaflores offered MTB18 tokens at a set price during it’s Initial Coin Offering. 

The date of Organic Costaflores S.A.’s acquisition of the trademark rights to OpenVino is May 6th, 2018.  However, Intel applied for trademark protection for OpenVino in Jamaica on May 7^th, 2018[1], and then applied for US trademark protection on August 3^rd, 2018. 

The next day, on May 8^th, 2018, Intel issued a press release announcing that “Intel Computer Vision SDK” was changed to OpenVino. Here’s the release:  https://software.intel.com/en-us/articles/OpenVINO-RelNotes . 

We have gone above and beyond our due diligence, and we can confirm Intel never publicly mentioned OpenVino before May 8^th, 2018 in any advertising anywhere on the Internet.  Mike Barrow, the owner of Organic Costaflores S.A. first told the world of OpenVino  at the November, 2017 Organic World Congress and his presentation was published in their journal.[2]  The OpenVino wiki was originally published in January 13, 2017.[3]Organic Costaflores S.A. released 12 YouTube videos discussing OpenVino well before May 6^th, 2018, some of the videos explicitly mentioning the upcoming May 6^thcommerce date.[4]Organic Costaflores  advertised OpenVino on social media[5]for months and had it featured in articles[6]before unveiling it during their Initial Coin Offering.  The OpenVino.org domain was registered on May 27^th, 2017.  Prior to the May 6^thcommerce date, OpenVino was registered on numerous services, such as GitHub.Org, LinkedIn, and Reddit, just to name a few. Intel’s OpenVino just appeared, with no previous advertising on any media or platform, on May 8^th, 2018.

Figure 1: One of many OpenVino social media posts made prior to May 6th

You noted in your Office Action dated October 8^th, 2018 that:  “The effective filing date of pending U.S. Application Serial No. 88064329, May 7, 2018, precedes applicant’s effective filing date, May 22, 2018.  If the mark in the referenced application registers, applicant’s mark may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between the two marks.  See 15 U.S.C. §1052(d); 37 C.F.R. §2.83; TMEP §§1208 et seq.  Therefore, upon receipt of applicant’s response to this Office action, action on this application may be suspended pending final disposition of the earlier-filed referenced application.”  You effectively notified us that Intel applied for the trademark for OpenVino the day after Organic Costaflores S.A. actually started using OpenVino in commerce in America. Upon Organic Costaflores S.A.’s providing you evidence of Organic Costaflores using OpenVino in commerce in America before Intel applied for a trademark for OpenVino in Jamaica, Organic Costaflores S.A. should be granted the exclusiveright to the trademark of OpenVino in America and Intel’s application should be immediately suspended. 

Blockchain

As per our conversation on the morning of January 4^th, 2018, Organic Costaflores S.A. will be using data from a blockchain to establish that their OpenVino was first used in the regular course of commerce on May 6^th, 2018 – the day before Intel applied for trademark protection for their version of OpenVino in Jamaica.  What is a blockchain? A blockchain is really quite simple.  It’s the recordings of transactions made in the ordinary course of business onto data blocks which form a chain. Each block in the blockchain consists of a transaction.  Once a block is full of data, it seals itself off, forever, and links itself to the next block in the chain by a long alpha-numeric sequence called a hash.  Once the block has sealed, the data in the block can never be changed. Each block has a unique fingerprint.  The fingerprint, called a hash, takes a lot of computing time and energy to generate.  The block is stored in multiple copies on a network of computers, called “nodes.” Each time someone submits a transaction to the block, the nodes check to make sure the transaction is valid.  The owners of these nodes are called miners. Miners who successfully add new blocks to the chain earn  cryptocurrency as a reward.  By existing on computers around the world, it is decentralized, meaning that no one person, group – or even government – can tamper with the data stored in a sealed off block.

For a good analogy, from the site mission.org: 

“Picture a spreadsheet that is duplicated thousands of times across a network of computers. Then imagine that this network is designed to regularly update this spreadsheet and you have a basic understanding of the blockchain.” [7]

OpenVino

OpenVino defines something of value: a digital token that represents a bottle of wine. The winery Organic Costaflores uses the blockchain to record the transfer of these digital tokens, called MTB18, to consumers in exchange for payment. 

OpenVino is located on the Ethereum blockchain.  OpenVino is a process by which Organic Costaflores creates smart contracts with parties to enable them to purchase Costaflores’ MTB18 ERC-20 cryptocurrency tokens with other cryptocurrencies such as Ether, similar to bitcoin.  Like the blockchain, the OpenVino smart contract itself is simple – consisting of only 280 lines of code.  

The MTB18 tokens are redeemable for Organic Costaflores S.A.’s Mike Tango Bravo wine. When the redeemer receives the wine, they can scan a code on the bottle, and in return for providing Organic Costaflores S.A. with feedback on their overall experience, acquire a stake – a small portion of ownership - in Organic Costaflores S.A. All of these activities are also recorded on blocks on the Ethereum blockchain.  The blocks themselves become immutable once they are written on the blockchain.  

First Use

In the present case, Intel applied to trademark the mark OpenVino one day after Organic Costaflores S.A. began using OpenVino in the regular course of business internationally and in the United States.  Organic Costaflores first used OpenVino, in the regular course of business on Sunday, May the 6^th, 2018.  We can easily prove this by examining data on the Ethereum blockchain using a block explorer. As we noted earlier, once a block has sealed itself off from the blockchain, it becomes immutable – or tamper proof.  The data we will be referring to was written on a block that was closed long ago.  Intel is very familiar with blockchain technology and it’s viability.  They should be especially familiar with the Ethereum blockchain, as they are members, like Microsoft and the Golden Gate University Law School, of the Enterprise Ethereum Alliance[8], and they have numerous ongoing projects utilizing blockchains.[9]  

Proof of First Use

On May 6^th, 2018, Robert F. of Brooklyn, New York logged onto https://ico.costaflores.comto purchase some MTB18 tokens from Organic Costaflores S.A.  Robert provided Organic Costaflores S.A. with his name, address, email, and digital wallet address on a form provided by Organic Costaflores S.A.  In return, Robert was provided the OpenVino smart-contract address, which is 0xbbebc3d30295aff5b4a977e7ff50d34cbe0b39.  From his digital wallet (address 0x5301dD9a5289bf6aa09e757B26bF777af5EE8016), Robert sent 0.08 units of the cryptocurrency Ether – which was worth $57.24 USD on May 6^th, 2018 – to the OpenVino smart-contract.  The OpenVino smart-contract then returned 10.24 MTB18 tokens to Robert F.’s digital wallet, and the transaction was complete.  Now, we’re going to show this transaction on the Ethereum blockchain using the block explorer Etherscan.io.

 Etherscan.io is a block explorerfor the Ethereum Blockchain. A block explorer is essentially a search engine that allows users to easily lookup, confirm, and validate transactions that have taken place on the Ethereum Blockchain.  Etherscan.io is one of several independently developed block explorers available to access the decentralized information and infrastructure applications that Ethereum makes possible. While we are using Etherscan.io in this example, one could also use Ethplorer (https://ethplorer.io/ ) or Etherchain (Open Source Ethereum Blockchain Explorer - beaconcha.in - 2024 ) and achieve the exact same results.

Etherscan.io is not funded, operated or managed by the Ethereum Foundation, but instead exists as an independent entity. Their mission is to facilitate blockchain transparency by indexing and making searchable all transactions on the Ethereum Blockchain in the most transparent and accessible way possible.[10] Organic Costaflores S.A. chose to use Etherscan for this filing because it is very user friendly.  

At this point, I would ask our Examining Attorney to follow along on a computer while examining the following screenshots and diagrams.  If you do this, you will find that we are presenting the information exactly as it is permanently published on the Ethereum blockchain.

In our browser, we type https://etherscan.io/.  That will bring up the Etherscan homepage:

In the upper right-hand search bar, we type: mtb18.openvino.eth

This will take you to the Ethereum Name Service Lookup Page, where we will click on mtb.openvino.eth:

This will take us to the Ethereum Contract page, where we will click on  MIKETANGOBRAVO18 (MTB18)

in the Token Tracker line:

This takes us to Organic Costaflores’ OpenVino Etherscan token page:

Scroll down to the very bottom of the page and click the ‘last’ button, which will take us to the earliest OpenVino transactions on the Ethereum blockchain:

The highlighted Ethereum transaction is the one we will be focusing on.  This is the transaction between Robert F. and Organic Costaflores facilitated by OpenVino on May 6^th, 2018:

If you hover your mouse pointer over the Age, it will tell you when the smart contract transaction was made: May-06-2018 06:18:24 PM. 

Next, we click on the TxHash, or transaction number, associated with the transaction:

You are now at the Ethereum transaction page. This is a receipt.  The actual transaction is:

1. This is the transaction number.

2. This is the number of times this particular block has been confirmed.

3. This is the time stamp of the transaction.

4. This is Robert F.’s wallet address, or, the sender’s address.

5. This is OpenVino’s smart-contract address.

6. This is the corresponding amount of Ether sent from the smart-contract to the Costaflores wallet.  

7. This is Organic Costaflores S.A.’s digital wallet.

8. Robert F.’s digital wallet to receive the MTB18 tokens.

9. The 10.24 MTB18 tokens which have been transferred to 
   Robert F.’s digital wallet.

Here is another way of looking at the same transaction:

Conclusion

As you can see, Organic Costaflores S.A. has proven, by clear and convincing evidence, that their version of OpenVino was used in commerce in America on May 6^th, 2018, a day before Intel filed for trademark protection for their version of OpenVino in Jamaica on May 7th, 2018. And as you can see from the block explorer, there are many other transactions that occurred at that time and afterwords.  As such, Organic Costaflores S.A.’s trademark application, United States Trademark Application Number:87961121should be allowed to proceed, and Intel’s applications for OpenVino, application numbers 88155989 and 88064329, should be denied or suspended.

Ultimately, Organic Costaflores S.A. has the law, both judicial and statutory, on it’s side, so there is no rational argument Intel can make, legally, to usurp Organic Costaflores S.A.’s claim of priority on the OpenVino trademark.   The right of first use in commerce in trademark law is sacrosanct.

 In 2016, in Christian Faith Fellowship Church v. adidas AG, 841 F.3d 986, 120 U.S.P.Q.2d 1640 (Fed. Cir., 2016),the Federal Circuit decided a case which illustrates why first use in commerce is almost absolute.  Christian Faith Fellowship Church is located in Zion, Illinois, which is about 5 miles from the Illinois and Wisconsin border.  The church had a campaign to raise money and the theme of the campaign was ‘ADD A ZERO,’ which it put on clothing and sold in the church bookstore.  In February they sold two hats worth $38.34 to a Wisconsin resident.  They applied for trademark protection for a regularly and stylized mark for ADD A ZERO in March and used the February sale as their use in commerce date.  The USPTO granted the Church's applications and registered the marks as U.S. Registration Nos. 3,173,207 and 3,173,208.

In 2009, Adidas wanted to register a clothing trademark for ‘ADIZERO,’ but were denied because of the likely confusion between their ADIZERO and Christian Faith Fellowship Church’s ADD A ZERO trademark.  Adidas sought to cancel Christian Faith Fellowship Church’s trademark for, among other reasons, nonuse of the mark before applying for the trademark for ADD A ZERO. The Church had kept the check which purchased the two hats, and it had a preprinted Wisconsin address on the back, proving the trademark had been used in interstate commerce. However,

“The Board considered the Church's proffered evidence—over Adidas's hearsay and authentication objections—of a cancelled check for the sale of two “ADD A ZERO”-marked hats for $38.34 in February 2005, before the Church applied for its marks. The Church had kept the check in its records and cross-referenced it with a sales register it maintained for its bookstore. The check's drawer was Charlotte Howard, who had a Wisconsin home address pre-printed on her check.  The Board disagreed with the Church that the sale to Ms. Howard evidenced the requisite “use in commerce” under the Lanham Act. The Board concluded: [T]he sale of two ADD A ZERO caps at a minimal cost within the state of Illinois to Ms. Howard, who resides outside the state, does not affect commerce that Congress can regulate such that the transaction would constitute use in commerce for purposes of registration.... This sale is de minimis and, under the circumstances shown here, is insufficient to show use that affects interstate commerce.” Adidas AG v. Christian Faith Fellowship Church , Cancellation No. 92053314, 2015 WL 5882313, at *7 (T.T.A.B. Sept. 14, 2015) (Board Op. ) (footnote omitted). (120 U.S.P.Q.2d 1640 (Fed. Cir., 2016). ((841 F.3d 988-9)

The Federal Circuit vehemently disagreed the T.T.A.B. and held:

“It is beyond [**20]  dispute that "the definition of commerce in the Lanham Act means exactly what the statute says, i.e. 'all commerce which may lawfully be regulated by Congress.'" Larry Harmon, 929 F.2d at 666 (quoting 15 U.S.C. § 1127);  [***1647]  see also Gastown, 326 F.2d at 784 (quoting Bulova Watch Co. v. Steele, 194 F.2d 567, 571 (5th Cir.), aff'd, 344 U.S. 280, 73 S. Ct. 252, 97 L. Ed. 319, 1953 Dec. Comm'r Pat. 424 (1952)); cf. Taylor, 136 S. Ct. at 2079 (construing provi-sion of Hobbs Act—which defines "commerce" as including "all . . . commerce over which the United States has jurisdiction," 18 U.S.C. § 1951(b)(3)—as extending to full reach of Congress's Commerce Clause powers).”  (841 F.3d 995).

Immediately before concluding: 

“For the foregoing reasons, we reverse the Board's cancellation of the Church's “ADD A ZERO” marks for not using them in commerce before federally registering them and remand for the Board to address Adidas's other cancellation grounds.” (841 F.3d 995).     

Under Christian Faith Fellowship Church v. adidas AG, 841 F.3d 986, 120 U.S.P.Q.2d 1640 (Fed. Cir., 2016),the Federal Circuit would find Organic Costaflores S.A.’s use of their version of OpenVino in America and internationally in commerce first would preclude Intel from ever registering their version of OpenVino for trademark protection.  Organic Costaflores S.A. used OpenVino first.  Therefore, the U.S.P.T.O. must rule in favor of Organic Costaflores S.A.

Respectfully submitted:

/Neil Carlton Moss/

[1]Jamaica doesn’t post their trademark applications online. I’m going to Jamaica this month to verify this filing.

[2]Mike Barrow, OpenVino, Using DIY Technology and Block Chain Cryptocurrency to Create Biodigital Organic Certifications, Final Report, 19^thOrganic World Congress, pg. 12, http://apeda.gov.in/apedawebsite/trade_promotion/ReportsTradeEvents/ReportonOWC2017APEDA.pdf

[3]http://wiki.costaflores.comand http://wiki.costaflores.com/pages/viewpreviousversions.action?pageId=65573

[4]https://www.youtube.com/playlist?list=PLC67Nqxq04sy5cMoySL26NB91kH__DT8W

[5]Instagram posts advertising OpenVino Initial Coin Offering on May 6^th, 2018.: Costaflores on Instagram: "Bodega Costaflores es la primera bodega #opensource y lanzará la primera #criptomoneda respaldada por vino en el mundo, MTB18, será como el Bitcoin del vino. Más información ICO.COSTAFLORES.COM #cryptoasset #openvino #mtb18 #winecoin #bitcoin #cryptoasset #cryptocurrency #digitalcurrency #winestagram #costafloresorganicvineyard #costafloreswinery #MTB #MTBwines #argentina #argentinewine #organic #organico #organicwine #organicwinery #instawine #instagood #instadaily #authentic #transparent #magic" , Costaflores on Instagram: "H O Y ! ! ! 🍷👏🏻📣📈 Bodega Costaflores será la primera bodega #opensource y lanzará la primera #criptomoneda respaldada por vino en el mundo, MTB18, será como el Bitcoin del vino. Más información ICO.COSTAFLORES.COM #cryptoasset #openvino #mtb18 #winecoin #bitcoin #cryptoasset #cryptocurrency #digitalcurrency #winestagram #costafloresorganicvineyard #costafloreswinery #MTB #MTBwines #argentina #argentinewine #organic #organico #organicwine #organicwinery #instawine #instagood #instadaily #authentic #transparent #magic" , Costaflores on Instagram: "ICO.COSTAFLORES.COM Presenting the world's first wine-backed crypt0asset! Costaflores Organic Vineyard exposes EVERYTHING, and becomes the world's first open-source winery 🙌🏻🍷 #openvino #mtb18 #opensource #enterpreneur #bitcoin #winecoin #crytocurrency #cryptoasset #arduino #vinduino #tecnologia #technology #blockchain #linux #startups #crowdfunding #wine #winelover #organic" ; Facebook, April 27^th, 2018, Post advertising OpenVino Initial Coin Offering on May 6^th, 2018: Costaflores Organic Vineyard | Perdriel . 

[6]Amanda Barnes, World’s First Open Source Winery Launches in Argentina, SevenFifty Daily, (May 4, 2018).  World’s First Open-Source Winery Launches in Argentina | SevenFifty Daily and http://wiki.costaflores.com/display/OP/Press+Coverage

[7]A simple explanation of how blockchain works

[8]Membership - Enterprise Ethereum Alliance

[9](https://www.intel.com/content/www/us/en/security/blockchain-overview.html ,  https://www.intel.com/content/www/us/en/architecture-and-technology/software-guard-extensions.html ,)

[10]What is Etherscan, Etherscan Support Center, https://etherscancom.freshdesk.com/support/solutions/articles/35000022140-what-is-etherscan-(Last Modified on: Tue, 21 Nov, 2017 at 11:18 AM).