Appellant's Brief in Texas Courts of Appeal

CAUSE NO. 02-13-00409-CV

IN THE COURT OF APPEALS

FOR THE SECOND JUDICIAL DISTRICT OF TEXAS

FORT WORTH, TEXAS

Barbara Louise Morton d/b/a Timarron College Prep

Appellant

V.

Timarron Owners Association, Inc.

Appellee

Trial Court Cause No. 096-260449-12

Hon. R. H. Wallace, Jr., Presiding Judge

BRIEF OF APPELLANT

NORRED LAW, PLLC

Warren V. Norred

TX Bar Number 24045094

200 E. Abram, Suite 300

Arlington, TX 76010

P. 817.704.3984; F. 817.549.0161

Attorney for Appellant

ORAL ARGUMENT REQUESTED

ACCEPTED02-13-00409-CV

SECOND COURT OF APPEALSFORT WORTH, TEXAS2/4/2014 10:31:04 PM

DEBRA SPISAKCLERK

02-13-00409-CV, Appellant's Brief (Morton) Page 1

I. Identity of Parties and Counsel

The following is a list of all parties and all counsel in this matter:

A. Appellant is Barbara Louise Morton d/b/a Timarron College Prep, defendant in

the trial court.

The attorney representing Appellant is:

Norred Law, PLLC

Warren V. Norred, State Bar Number: 24045094


Arlington, TX 76010

P. 817.704.3984; F. 817.549.0161

[email protected]

B. Appellee is Timarron Owners Assoc., Inc, plaintiff in the trial court.

The attorney representing Appellee is:

Wilson Legal Group P.C.

John T. Wilson, State Bar Number 24008284

16610 Dallas Parkway, Ste. 1000

Dallas, TX 75248-6806

P. 972.248.8080 F. 972.248.8088

[email protected]

02-13-00409-CV, Appellant's Brief (Morton) Page 2

II. Table of Contents

I. Identity of Parties and Counsel......................................................................... 1

II. Table of Contents .............................................................................................. 2

III. Index of Authorities .......................................................................................... 1

IV. Statement of the Case ....................................................................................... 1

V. Statement Regarding Oral Argument ................................................................ 4

VI. Statement of Jurisdiction .................................................................................. 4

VII. Issues Presented ............................................................................................... 4

VIII. Statement of Facts ............................................................................................ 5

IX. Brief Procedural History .................................................................................. 7

X. Summary of the Argument ..............................................................................10

XI. Arguments ......................................................................................................12

XII. Prayer ............................................................................................................18

XIII. Appendix - The following documents are included in the attached Appendix. 19

02-13-00409-CV, Appendix to Appellant's Brief (Morton)

III. Index of Authorities

Statutes TEX. BUS. & COMM. CODE 16.26 ............................................................................ 8

TEX. CIV. PRAC. & REM. CODE 51.012 ..................................................................... 5

Tex. Civ. Prac. & Rem. Code 73.001 ..................................................................... 3

Tex. Gov't Code 22.220 ........................................................................................... 5

Cases BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990) ............................9, 10

Digital Imaging Assocs. v. State, 176 S.W.3d 851 (Tex.App.--Houston [1st Dist.]

2005, no pet) ....................................................................................................9, 11

ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 514 (Tex. App.--Dallas

1989, writ denied) .................................................................................................12

Falls County v. Perkins & Cullum, 798 S.W.2d 868, (Tex.App.--Fort Worth, no

writ.) ............................................................................................................... 10, 11

J.C. Hadsell & Co., Inc. v. Allstate Ins. Co., 516 S.W.2d 211, 213-14 (Tex. Civ.

App. -- Texarkana 1974, writ dism'd w.o.j.) ........................................................12

Newman Oil Co. v. Alkek, 614 S.W.2d 653 (Tex.Civ.App.--Corpus Christi 1981,

writ ref'd n.r.e.) .................................................................................................9, 11

Noe v. McLendon, 2007 Tex. App. LEXIS 5708 (Tex.App.--Fort Worth 2007, no

pet.) .......................................................................................................................12

Page v. Page, 780 S.W.2d 1 (Tex.App.--Fort Worth 1989, no writ) ......................12

Placid Oil Co. v. Louisiana Gas Intrastate, Inc., 734 S.W.2d 1, 5 (Tex. App. --

Dallas 1987, writ ref'd n.r.e.) ................................................................................13

Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008)...................................10

Winslow v. Acker, 781 S.W.2d 322, 328, 1989 Tex.App.--San Antonio 1989, writ

denied) ..................................................................................................................13

IV. Statement of the Case

1. Appellant provides tutoring services, identified with the public using the

common law trademark "Timarron College Prep", that has been active since


2008, during which time it has provided tutoring services, which falls under

trademark International Class 41.

2. Appellee owns "Timarron Owners Association, Inc.", which is a Texas-

registered trademark under International Class 36 in 2003.

3. Appellee filed a civil suit for trademark infringement, unjust enrichment,

tortious interference with prospective business relations, and unfair

competition, and sought actual damages, special damages, and costs of suit.

4. During the pendency of the civil suit, both parties began the registration process

with the United States Patent and Trademark Office ("USPTO")1, and both

parties filed oppositions2 before the USPTO

3 to prevent the other party from

obtaining its registration.

1 Timarron Owners' Assoc. Inc. actually applied for three trademarks employing the "Timarron"

name; the other two are not in dispute, as they are stylized marks and do not conflict with

Appellant's text-only mark. 2 As paraphrased from http://www.uspto.gov/trademarks/law/TTAB.jsp - An opposition

proceeding is an administrative process available before the United States Patent and Trademark

Office's Trademark Trial and Appeal Board. In an opposition, a person may oppose the

trademark application of another party in order to stop that party from obtaining a federal

registration. Before a trademark can register, the mark must be published for opposition in

the Official Gazette. Publication starts the opposition period, which initially lasts 30 days,

but may be extended. During the original opposition period, any party who believes that it

would be damaged if the published mark obtains registration may oppose registration. Although

there are many possible grounds for opposition, the most common one is a claim that a

likelihood of confusion exists between the trademarks. In this type of proceeding similar to a

civil court case, a three-judge panel issues a decision after both sides have had an opportunity to

present their evidence and make arguments in legal briefs before the Board. 3 References to the USPTO in this document may be to the trademark examination process, or to

the Trademark Trial and Appeal Board, depending on context.


5. Appellee successfully requested that the USPTO abate the opposition on the

trademark disputes until this Texas civil case was concluded, arguing over

Appellant's objection that the results of this state case would provide valuable

insight and factual conclusions to assist in adjudication of the trademark

oppositions and registration process before the USPTO.

6. Appellant filed a motion for summary judgment to end the dispute in the state

case. On the date on which Appellee's response was due, Appellee dismissed its

claims, and argued that its dismissal ended the dispute because Appellant's

counterclaims were merely defensive. Appellant argued that Appellee's

dismissal could not eliminate Appellant's counter-claims for declaratory

judgment and attorney fees because the counter-claims were not merely

defensive, and had greater ramifications for the trademark disputes before the

USPTO.

7. After receiving argument from the parties, the trial court entered Appellee's

dismissal.

8. Appellant asks the Court of Appeals to reverse the trial courts ruling

dismissing Appellant's counterclaims, and remand the case to the trial court for

consideration of Appellant's motion for summary judgment.


V. Statement Regarding Oral Argument

9. The Court would benefit from oral argument in this case because having the

attorneys present for oral argument to answer the Courts questions regarding the

dispute's interaction with the trademark disputes before the USPTO and aid the Court

to resolve the case more quickly.

VI. Statement of Jurisdiction

10. This Court has jurisdiction under TEX. GOV'T CODE 22.220 and TEX. CIV.

PRAC. & REM. CODE 51.012.

VII. Issues Presented

11. The trial court erred as a matter of law when it granted Appellee's Motion to

Dismiss, as the decision is incompliant with TEX. R. CIV. PRO. 162, in that the

dismissal prejudiced Appellants right to be heard on a pending claim for affirmative

relief.

12. The trial court erred as a matter of law when it granted Appellee's Motion to

Dismiss because Appellant had claimed attorney's fees, and TEX. R. CIV. PRO. 162

states that a dismissal shall have no effect on any motion for attorney's fees pending

at the time of dismissal.


VIII. Statement of Facts

13. The following facts must be considered as true from the Appellants evidence

and pleadings under the standard of review this Court applies to appellate

proceedings, in that admissible evidence was provided to support all of the facts

asserted, and no contravening evidence was offered.

14. Since 1999, Appellant has provided tutoring services from Southlake, Texas,

using the word "Timarron" in her business name since that time, and specifically

doing business as "Timarron College Prep" since May 2008. [C.R. 34, 9]

15. Appellee, a homeowners association, owns a Texas-registered trademark for

insurance and financial services, falling under trademark International Class 36.

[C.R. 14]

16. So many businesses use the word "Timarron" in Southlake and the surrounding

area that it provides no identification of a provider of any particular good or

service. [C.R. 32, 2]

17. The word "Timarron" has been used openly for years by the following

businesses:

a. "The Courtyard at Timarron" is a current business in Southlake, TX. b. "The Villages at Timarron" is a current business in Southlake, TX. c. "Timarron Family Medicine, PA" is a current business in Southlake, TX. d. "Timarron at Creekside Park" is a current business in Southlake, TX. e. "Timarron Financial Services, LLC" is a current business in Southlake, TX.


f. "Timarron Partners, Inc." is a current business in Grapevine, TX. g. "Timmaron LLC" is a current business in Richardson, TX. h. "Timarron Capital Inc" is a current business in Irving, TX. i. "Timarron Custom Homes, Inc." is a current business in Keller, TX. j. "Timarron Venture, Ltd." is a current business in Dallas, TX. k. "Timarron Venture One, L.C." is a current business in Dallas, TX. l. "Timarron Shopping Center, L.P." is a current business in Dallas, TX. m. "Timarron Mortgage Group Inc." is a current business in Dallas, TX. n. "Timarron Land Corporation" is a current business in Mesquite, TX. o. "Timarron Skin & Laser" is a current business in Southlake, TX. p. "Timarron Professional Eye" is a current business in Southlake, TX. q. "Timarron Golf Club Maintenance" is a current business in Southlake, TX. r. "Timarron Family Medicine" is a current business in Southlake, TX. s. "Village at Timarron 4120" is a current business in Southlake, TX. t. "Timarron Tiger Sharks" is a current business in Southlake, TX.

[C.R. 32-33, 3; 33, 6]

18. As an example of the USPTO's adjudication of marks concerning the word

"Timarron", the Court should note that the USPTO provided a Notice of Allowance

for "TIMARRON CAPITAL, INC." as a standard character mark in 2006 for

commercial loan services. Though that mark was eventually abandoned for lack of

use, the USPTO did not see any conflict between "TIMARRON CAPITAL, INC"

and "TIMARRON OWNERS ASSOC., INC." [C.R. 33, 5]

19. No reasonable person would see all of the businesses with the name

"TIMARRON" in and around Southlake, TX and think that they were all owned by

the same organization. [C.R. 33, 6]

20. Appellee has previously filed trademark infringement suits against

organizations using "Timarron", most recently losing at summary judgment against


Neighborhood Networks Publishing, Inc. in the 352th District Court, Cause No. 352-

260448-12. [App. A, p.163]

IX. Brief Procedural History

21. On January 13, 2012, Appellant filed an application for federal trademark

registration for "Timarron College Prep" with her tutoring service. [C.R. 79-86]

22. About July 26, 2012, Appellee filed suit in the 96th District Court, Tarrant

County, for trademark infringement under TEX. BUS. & COMM. CODE 16.26, unjust

enrichment, tortious interference with prospective business relations, and unfair

competition. Appellee alleged that Appellants use of the trademark caused confusion

in the marketplace, directly and detrimentally impacting Appellees ability to

consummate sales with customers. [C.R. 4]

23. About September 7, 2012, Appellant denied the allegations in Appellee's

Original Petition, and responded with a counterclaim for declaratory judgment that it

was not infringing any trademark belonging to Appellant, as well as a claim to cancel

Appellee's Texas-registered mark after transfer to Travis County, tortious

interference with business relations, and attorney fees under CPRC 37. [C.R. 19]

24. On October 18, 2012, Appellee filed Opposition 91207557 to Appellant's

federal trademark application S/N 85516680, and then moved for a suspension of

that opposition on June 12, 2013, arguing that the instant case would resolve the

matter. On July 2, 2013, Appellant filed a response, arguing that the state case could


be handled by the 96th District Court and the trademark oppositions by the USPTO.

The USPTO granted the motion to suspend. [C.R. 110-114]

25. On Nov. 15, 2012, Appellee filed an application for federal trademark

registration for "Timarron" in financial and insurance services. [App. A, p.1]

26. On May 21, 2013, Appellant requested and received an extension of time to

file opposition to Appellee's application S/ N 85780484, setting the deadline to

August 21, 2013. [App. A, p.169]

27. About July 15, 2013, Appellant filed Defendants Traditional and No-

Evidence Motion for Summary Judgment ("Appellant's MSJ") against Appellees

claims, as Appellee could show no evidence that Appellant used Appellees

registered mark in connection with the selling and offering for sale of goods that

were likely to deceive or cause confusion or mistake as to the source or origin of

said good, which is required to constitute infringement under TEX. BUS. & COMM.

CODE 16.26, because Appellees mark represents only insurance & financial

products found in International Trademark Class 36, and Appellant uses the mark

only to advertise tutoring services that no reasonable person could associate with

Plaintiff's mark. [C.R. 26]

28. About August 13, 2013, Appellee filed Plaintiffs First Amended Petition,

asserting additional infringement causes of action. [C.R. 39]


29. On August 15, 2013, a week prior to the scheduled hearing on August 22,

2013 for Appellants MSJ to be heard and on the day that Appellee's response to

Appellant's MSJ was due, Appellee filed its Plaintiffs Notice of Non-Suit and

Dismissal Without Prejudice as to Entire Suit with Brief in Support. (Appellee never

filed a response to Appellant's MSJ.) [C.R. 58]

30. On August 20, 2013, the trial court entered an order of dismissal, dismissing

the case without prejudice. [C.R. 69] However, the court vacated the order of

dismissal during the hearing on Appellant's MSJ on August 22, 2013. [C.R. 71] The

court permitted a two-week period for Appellant to file a response to Appellees

Notice of Non-Suit, stating that the court would rule on the dismissal thereafter based

on the submitted arguments. [R.R. 29:11-13]

31. On August 21, 2013, Appellant filed Opposition 91212131 to registration of

Appellee's application for "Timarron", S/N 85780484. [App. A, p.2]

32. On Aug. 26, 2013, Appellant filed her Objection to Notice of Nonsuit and

Motion to Strike. [C.R. 72]

33. On September 3, 2013, Appellee filed Plaintiffs Response to Defendant

Mortions Objection to Plaintiffs Notice of Non-Suit and Motion to Strike and

Plaintiffs Motion for Entry of Order of Dismissal Based on Notice of Nonsuit filed

08/15/13 and Brief in Support. [C.R. 153]


34. On October 28, 2013, the court dismissed Appellant's counter claims and

denied Appellants Motion for Summary Judgment. [C.R. 314]

35. On November 18, 2013, Appellant filed her Notice of Appeal. [C.R. 316]

36. On December 11, 2013, Appellant moved for suspension of her opposition

until the appeal on the instant case is concluded. [App. A, p.62]

X. Summary of the Argument

37. Appellee asserts that Appellant's counter-claims for declaratory action and

attorney fees are mere mirrors of Appellee's original claims, so they are dismissed

pursuant to Rule 162 and case law, citing BHP Petroleum Co. v. Millard, 800

S.W.2d 838 (Tex. 1990), Newman Oil Co. v. Alkek, 614 S.W.2d 653 (Tex.App.--

Corpus Christi 1981, writ ref'd n.r.e.), and Digital Imaging Assocs. v. State, 176

S.W.3d 851 (Tex.App.--Houston [1st Dist.] 2005, no pet).

38. Appellant argues that TEX. R. CIV. PRO 162 allows Appellant's counterclaim

for attorney fees to survive the dismissal, and also argues that in the Second Court

of Appeals, her counterclaim for attorney fees is an affirmative relief claim that

survives plaintiff's dismissal pursuant to controlling case law, citing Falls County

v. Perkins & Cullum, 798 S.W.2d 868, (Tex.App.--Fort Worth, no writ.).

39. Appellant additionally argues that her counter-claims are more than mere

mirrors of Appellee's original claims, because she is currently seeking registration

of her trademark in the USPTO, which has abated proceedings until this dispute is


adjudicated. Appellant argues that the registration of her trademark and the

intertwined opposition proceedings are an affirmative relief relying on this case, as

Appellee's own arguments state. [C.R. 144-152]

40. In all of Appellee's argument, never does Appellee address why the two

pending trademark registrations and oppositions do not constitute more than "mere

mirrors" of Appellee's original claims. In no way can this complex case involving

ongoing trademark litigation be considered analogous to a simple-minded attempt

to shoehorn attorneys fees into a case where such does not belong.

41. Because other proceedings depend upon the outcome of Appellant's claims,

and constitutes "true declaration controlling an ongoing and continuing

relationship" as discussed in BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841

(Tex. 1990), case law does not support Appellee authority in this case to

unilaterally terminate the suit in full. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d

31 (Tex. 2008).

42. Appellant reiterates that Declaratory Judgment is appropriate in this case, as

her argument is distinguished from that of Appellee on at least one note, in that the

parties' trademark registrations and oppositions, which have been abated until the

adjudication of this case, constitutes an ongoing and continuing relationship,

dependent upon the outcome of Appellants claims.


43. Furthermore, Appellant argues that the doctrine of estoppel should have

been applied in this case, as Appellee should have been barred from arguing

against its winning position at the federal level in this case, as it argued that

adjudication of the case would assist the USPTO in its treatment of the trademark

oppositions between the parties. As a result of Appellees successful argument

abating the oppositions filed between the parties before the USPTO, Appellant has

been unable to obtain her trademark. Appellee took a legal position, benefitted

from it, and is thus estopped from changing his mind with the court's blessing.

XI. Arguments

A. Appellants request for attorney fees pursuant to the Texas Declaratory Act

is a claim for Affirmative Relief in the Second Court of Appeals.

44. Appellee states that a defensive claim for attorney fees is not an affirmative

claim for relief, citing Newman Oil Co. v. Alkek, 614 S.W.2d 653 (Tex.Civ.--

Corpus Christi 1981, writ ref'd n.r.e.), Digital Imaging Assocs. v. State, 176

S.W.3d 851 (Tex.App.--Houston [1st Dist.] 2005, no pet.), and several other cases

that are not controlling. [C.R. 62]

45. Appellee's arguments, written and oral, tends to inappropriately blend the

absolute right to nonsuit his own claims as stated in Rule 162 with a right to

demand that a court dismiss all claims and the case in full. [C.R. 62, 7]


46. In the Second Court of Appeals, however, a claim for attorney fees pursuant

to the Texas Declaratory Act has been found to be an affirmative claim for relief.

For example, in Falls County v. Perkins & Cullum, 798 S.W.2d 868, 871

(Tex.App.--Fort Worth 1990, no writ), Judge Spurlock explained that several

courts have recognized that a claim for attorney fees under the Declaratory Act is a

"claim for affirmative relief", and cited holdings from courts all over the state,

including ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 514

(Tex. App.--Dallas 1989, writ denied), J.C. Hadsell & Co., Inc. v. Allstate Ins.

Co., 516 S.W.2d 211, 213-14 (Tex.App.--Texarkana 1974, writ dism'd w.o.j.), and

of course, the Second Court of Appeals in Page v. Page, 780 S.W.2d 1 (Tex.App.--

Fort Worth 1989, no writ). More recently, this holding remains undisturbed,

including Noe v. McLendon, 2007 Tex. App. LEXIS 5708 (Tex.App.--Fort Worth

2007, no pet.).

47. In each of the cases cited above, an appeals court has determined that a

claim for attorney fees pursuant to a declaratory action should survive a nonsuit.

Appellee appears to enjoy making proclamations about its ability to nonsuit at will,

which Appellant does not contest, but then confuse that with an ability to eliminate

all claims against it by that nonsuit.

48. Case law in the Second Court of Appeals is clear - attorney fees are a claim

for affirmative relief which survive a plaintiff's non-suit if the adverse party's


counterclaims are addressing more than merely a negative position of plaintiff's

claims.

49. In the instant case, Appellee specifically is suing on infringement of its

Texas-registered mark "Timarron" mentioned in Appellee's Original Petition. [C.R.

5,6] However, Appellant sought a declaration that she was not infringing any

mark held or owned by Appellee [C.R. 20, 7]. Appellee has more than one

common law mark, currently owning two federal registrations and a third for

which Appellee has filed but Appellant has opposed formally. Therefore, if there

was any question about whether the counter-claims were merely defensive, that

question was answered when Appellee filed additional federal registrations.

B. Appellants request for Declaratory Relief is proper under the Texas Declaratory Judgment Act

50. Appellee argues that Appellants cause of action for declaratory relief is

improper under the Texas Declaratory Judgment Act in that Appellants cause of

action for declaratory relief merely seeks to settle disputes that were already

pending before the trial court in Appellees original claims.

51. Appellant argues that according to Rule 162, a dismissal by a party does not

impact an adverse party's claim for affirmative relief or attorney fees if the claim

has greater ramifications than found in the original suit.

52. While Appellee correctly argues that a defendant's claim for declaratory

judgment which is a mere mirror of a plaintiff's claims is terminated by the


plaintiff's nonsuit, case law indicates clearly that "when a declaratory judgment

counterclaim has greater ramifications than the original suit, the court may allow

the counterclaim." Winslow v. Acker, 781 S.W.2d 322, 328, 1989 Tex.App.--San

Antonio 1989, writ denied), citing Placid Oil Co. v. Louisiana Gas Intrastate, Inc.,

734 S.W.2d 1, 5 (Tex.App. -- Dallas 1987, writ ref'd n.r.e.).

53. In Winslow, the counterclaim would settle an ongoing royalty interest

dispute, so the appeals court determined that the counterclaim had more than the

sole purpose of providing a vehicle to obtain attorney fees.

54. Appellee argues that the determination of greater ramifications in relation

to a declaratory judgment claim depends upon the parties having an ongoing and

continuing relationship, most commonly a contractual one. [C.R. 163, 19]

Appellant argues that the ongoing trademark disputes constitute on ongoing and

continuing relationship.

55. In the case at bar, Appellant is attempting to obtain federal registration of

her trademark [C.R. 79-83]. Appellee filed a suit to stop Appellant from obtaining

her federal trademark registration [C.R. 96-102], and then asked the USPTO to

suspend its proceedings in that opposition until the case at bar is adjudicated [C.R.

110-114].


56. In its arguments, Appellee argues the point it now argues against, shown in

paragraph eight, copied from the document [C.R. 112].

57. To be fair, Appellant argued that this state case did not have bearing on the

national case in front of the USPTO; after Appellant objected, Appellee then

reiterated its argument:

58. Appellee goes on through this document, arguing exactly opposite to what it

now states so emphatically in court:


59. The USPTO was convinced by Appellee to suspend the opposition. Having

had his cake at the USPTO, Appellee now wants to argue just the opposite and ask

this Court let him eat his cake in this Court as well.

60. Appellant asked that the court take judicial notice of the USPTO documents,

as they are readily available to the public on the USPTO's online system. Appellant

previously asked the trial court to take judicial notice of these files, and Appellee

did not object. [C.R. 76, 15] To assist the Court, the documents filed in the two

oppositions are attached in Appendix A and B.

61. Appellee should be estopped from arguing against his winning position at

the federal level in this case. Appellant had to pay a price for Appellee's win, as

she has been unable to obtain her trademark; Appellee cannot now say in this court

that its argument was wrong.

62. The USPTO's decision at the Trademark Trial and Appeal Board is three

pages and worth reading in full. It grants the suspension, concluding with the

statement that "the state court's determination regarding these issues may provide

some persuasive insight with regard to opposer's claim of priority and likelihood of

confusion asserted in this proceeding." [App. B, 12]

63. As the case law points out, and as Appellee has already argued in this case,

the ramifications of this case extend beyond this particular case. Appellant's


counter-claims should remain alive, and be adjudicated in the Court where

Appellee requested such and where so much work has already been completed.

XII. Prayer

64. Appellant prays that this Court reverse the trial courts ruling and judgment,

and remand the case back to the trial court for further proceedings.

Respectfully submitted,

NORRED LAW, PLLC

By:

Warren V. Norred; TX Bar Number 24045094

200 E. Abram, Suite 300; Arlington, TX 76010;

P. 817.704.3984; F. 817.549.0161

Attorney for Appellant Barbara Louise Morton

d/b/a Timarron College Prep

CERTIFICATE OF COMPLIANCE BY COUNSEL - Pursuant to Tex. R. App. Pro. 9.4, I

hereby certify that this Appellant's Brief contains 2958 words. This is a computer-generated

document created in Microsoft Word, using 12 or 14-point typeface for all text, except for footnotes

which are in 12-point typeface. In making this certificate of compliance, I am relying on the word

count provided by the software used to prepare the document.

By:

Warren V. Norred; TX Bar Number 24045094

CERTIFICATE OF SERVICE - A copy of this Appellants Brief was served upon John Wilson, counsel for Appellee, via electronic service (972-248-8088), pursuant to Rule 9.5 of Texas Rules of

Appellate Procedure on this day, February 4, 2013.

Warren V. Norred; Attorney for Appellant


XIII. Appendix - The following documents are included in the attached Appendix.

A. Documents constituting Opposition 91212131, filed by Appellant to oppose Appellee's trademark application S/ N 85780484.

B. Documents constituting Opposition 91207557, filed by Appellee to oppose Appellant's trademark application, S/N 85516680.


CAUSE NO. 02-13-00409-CV

IN THE COURT OF APPEALS

FOR THE SECOND JUDICIAL DISTRICT OF TEXAS

FORT WORTH, TEXAS

Barbara Louise Morton d/b/a Timarron College Prep,

Appellant

V.

Timarron Owners Association, Inc.

Appellee

Trial Court Cause No. 096-260449-12

Hon. R. H. Wallace, Jr., Presiding Judge

APPENDIX IN SUPPORT OF APPELLANTS OPENING BRIEF

NORRED LAW, PLLC

Warren V. Norred

TX Bar Number 24045094


Arlington, TX 76010

P. 817.704.3984; F. 817.549.0161

Attorney for Appellant

Mark InformationMark Literal Elements: TIMARRON

Standard Character Claim: Yes. The mark consists of standard characters without claim to any particular font style, size, or color.

Mark Drawing Type: 4 - STANDARD CHARACTER MARK

Goods and ServicesNote: The following symbols indicate that the registrant/owner has amended the goods/services:

Brackets [..] indicate deleted goods/services;Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit ofAsterisks *..* identify additional (new) wording in the goods/services.

For: Association services, namely, promoting the interests of current homeowners and marketing to attract new homeowners; Businessmanagement of homeowners associations for others; Homeowner association services, namely, promoting the interests ofhomeowners in a specific community and marketing the community nationwide to prospective new residents and property owners

International Class(es): 035 - Primary Class U.S Class(es): 100, 101, 102Class Status: ACTIVE

Basis: 1(a)First Use: May 15, 1992 Use in Commerce: May 15, 1992

Basis Information (Case Level)Filed Use: Yes Currently Use: Yes Amended Use: No

Filed ITU: No Currently ITU: No Amended ITU: No

Filed 44D: No Currently 44D: No Amended 44D: No

Filed 44E: No Currently 44E: No Amended 44E: No

Filed 66A: No Currently 66A: No

Filed No Basis: No Currently No Basis: No

Current Owner(s) InformationOwner Name: Timarron Owners Association, Inc.

Owner Address: 700 Wentwood DriveSouthlake, TEXAS 76092UNITED STATES

Legal Entity Type: CORPORATION State or Country WhereOrganized:

TEXAS

Attorney/Correspondence InformationAttorney of Record

Attorney Name: John T. Wilson Docket Number: 11-002008-17

Attorney Primary EmailAddress:

[email protected] Attorney EmailAuthorized:

Yes

Correspondent

Generated on: This page was generated by TSDR on 2014-02-02 22:08:58 EST

Mark: TIMARRON

US Serial Number: 85780484 Application Filing Date: Nov. 15, 2012

Filed as TEAS Plus: Yes Currently TEAS Plus: Yes

Register: Principal

Mark Type: Service Mark

Status: An opposition after publication is pending at the Trademark Trial and Appeal Board. For further information, see TTABVUE on theTrademark Trial and Appeal Board web page.

Status Date: Aug. 21, 2013

Publication Date: Apr. 23, 2013

Appendix A, p. 1

CorrespondentName/Address:

JOHN T WILSONWILSON LEGAL GROUP PC16610 DALLAS PKWY STE 1000DALLAS, TEXAS 75248-6802UNITED STATES

Phone: 9722488080 Fax: 9722488088

Correspondent e-mail: [email protected] [email protected] [email protected] [email protected]

Correspondent e-mailAuthorized:

Yes

Domestic Representative - Not Found

Prosecution History

Date Description ProceedingNumber

Aug. 21, 2013 OPPOSITION INSTITUTED NO. 999999 212131May 21, 2013 EXTENSION OF TIME TO OPPOSE RECEIVEDApr. 23, 2013 OFFICIAL GAZETTE PUBLICATION CONFIRMATION E-MAILEDApr. 23, 2013 PUBLISHED FOR OPPOSITIONApr. 03, 2013 NOTIFICATION OF NOTICE OF PUBLICATION E-MAILEDMar. 12, 2013 APPROVED FOR PUB - PRINCIPAL REGISTERMar. 11, 2013 ASSIGNED TO EXAMINER 83280Nov. 23, 2012 NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAMNov. 19, 2012 NEW APPLICATION ENTERED IN TRAM

TM Staff and Location InformationTM Staff Information

TM Attorney: KAJUBI, ELIZABETH N Law Office Assigned: LAW OFFICE 107File Location

Current Location: PUBLICATION AND ISSUE SECTION Date in Location: Mar. 18, 2013

ProceedingsSummary

Number of Proceedings: 2Type of Proceeding: Opposition

Proceeding Number: 91212131 Filing Date: Aug 21, 2013

Status: Pending Status Date: Aug 21, 2013

Interlocutory Attorney: GEORGE POLOGEORGISDefendant

Name: Timarron Owners Association, Inc.

Correspondent Address: JOHN T WILSONWILSON LEGAL GROUP PC16610 DALLAS PKWY STE 1000DALLAS TX , 75248-6802UNITED STATES

Correspondent e-mail: [email protected] , [email protected] , [email protected] , [email protected] , [email protected]

Associated marks

Mark Application Status SerialNumberRegistrationNumber

TIMARRON Opposition Pending 85780484Plaintiff(s)

Name: Barbara Morton

Correspondent Address: WARREN V NORREDNORRED LAW PLLC200 E ABRAM STE 300ARLINGTON TX , 76001UNITED STATES

Correspondent e-mail: [email protected] History

Entry

Appendix A, p. 2

Number History Text Date Due Date

1 FILED AND FEE Aug 21, 20132 NOTICE AND TRIAL DATES SENT; ANSWER DUE: Aug 21, 2013 Sep 30, 20133 PENDING, INSTITUTED Aug 21, 20134 ANSWER Sep 30, 20135 P MOT TO SUSP PEND DISP CIV ACTION Dec 11, 20136 D OPP TO SUSP; X-MOT TO CONSOLIDATE Dec 20, 2013

Type of Proceeding: Extension of TimeProceeding Number: 85780484 Filing Date: May 21, 2013

Status: Terminated Status Date: Aug 21, 2013

Interlocutory Attorney:Defendant

Name: Timarron Owners Association, Inc.

Correspondent Address: JOHN T. WILSONWILSON LEGAL GROUP, PC16610 DALLAS PKWY STE 1000DALLAS TX , 75248-6802UNITED STATES

Associated marks

Mark Application Status SerialNumberRegistrationNumber

TIMARRON Opposition Pending 85780484Potential Opposer(s)

Name: BarbaraMorton

Correspondent Address: Warren V. NorredNorred Law, PLLC200 E. Abram, Suite 300Arlington TX , 76010UNITED STATES

Correspondent e-mail: [email protected] marks

Mark Application Status Serial Number RegistrationNumber

Prosecution HistoryEntryNumber History Text Date Due Date

1 INCOMING - EXT TIME TO OPPOSE FILED May 21, 20132 EXTENSION OF TIME GRANTED May 21, 2013

Appendix A, p. 3

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.govESTTA Tracking number: ESTTA578147

Filing date: 12/20/2013IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARDProceeding 91212131Party Defendant

Timarron Owners Association, Inc.CorrespondenceAddress

JOHN T WILSONWILSON LEGAL GROUP PC16610 DALLAS PKWY SUITE 1000DALLAS, TX 75248-6802UNITED [email protected], [email protected],[email protected], [email protected],[email protected]

Submission Other Motions/PapersFiler's Name John T. WilsonFiler's e-mail [email protected], [email protected] /s/ John T. WilsonDate 12/20/2013Attachments Pages from Applicant's Response to Opposer's Mtn to Suspend.pdf(5258256

bytes )Exhibit A.pdf(1848339 bytes )Exhibit B.pdf(4310846 bytes )Exhibit C.pdf(1867138 bytes )Exhibit D.pdf(487279 bytes )Exhibit E.pdf(1900833 bytes )

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BEFORE THE TRADEMARK TRIAL AND APPEAL BOARDProceeding 91212131Party Plaintiff

Barbara MortonCorrespondenceAddress

WARREN V NORREDNORRED LAW PLLC200 E ABRAM, SUITE 300ARLINGTON, TX 76001UNITED [email protected]

Submission Motion to Suspend for Civil ActionFiler's Name Warrren V. NorredFiler's e-mail [email protected] /Warren V. Norred/Date 12/11/2013Attachments 2013_12_11-MortonMotionToAbateA.pdf(3077840 bytes )

Appendix A, p. 62

Applicant's Objection to Motion to Suspend Opposition Page 1

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

BARBARA MORTON

Opposer Opposition No: 91212131

v. Mark: TIMARRON

TIMARRON OWNERS ASSOCIATION, INC. In re Trademark No: 85780484

Applicant.

OPPOSER'S MOTION TO SUSPEND OPPOSITION PURSUANT TO 37 CFR 2.117

Opposer, BARBARA MORTION, dba TIMARRON OWNERS ASSOCIATION, INC.,

submits this Motion to Suspend Opposition ("Motion"), pursuant to 37 C.F.R. 2.117.

I. Procedural Background

1. Opposer is Barbara Morton, dba Timarron College Prep; Applicant is Timarron Owners

Association, Inc. ("TOA'').

2. On August 21, 2013, Opposer Mortonn filed Opposition No. 91212131 against Applicant

TOA, who filed application 85780484, seeking registration for the word mark "TIMARRON" in

class 35, described as:

"Association services, namely, promoting the interests of current homeowners and marketing

to attract new homeowners; Business management of homeowners associations for others;

Homeowner association services, namely, promoting the interests of homeowners in a

specific community and marketing the community nationwide to prospective new residents

and property owners."

3. In addition to the application and opposition already discussed infra, Morton filed to register

the word mark "TIMARRON COLLEGE PREP" in application 8551680, to which Applicant

TOA has filed Opposition No. 91207557.

4. In the state case filed in Tarrant County District Court in Texas as Cause No. 096-260449-12,

Applicant TOA sued Opposer Morton, alleging Trademark Infringement and associated claims

Appendix A, p. 63


concerning the "TIMARRON" mark and seeking to restrain Morton's use of "TIMARRON

COLLEGE PREP".

5. After Applicant TOA filed its suit for infringement and filed its opposition to Morton's

application for "TIMARRON COLLEGE PREP", Applicant requested that its opposition be

suspended until the state action was final, which the Board granted. Applicant's Motion to

Suspend is attached as Exhibit A, which also includes TOA's Original Petition for trademark

infringement and Morton's Answer.

6. In the state action, Morton filed a motion for summary judgment, attached as Exhibit B and

incorporated in full herein. A week prior to the hearing set on the motion, TOA dismissed its

claims, ostensibly understanding that it was about to lose and not wishing to see the matter fully

and finally litigated, and resolved against it. The trial court allowed the case in full to be

dismissed, dismissing Morton's counterclaims, which would be of use in these proceedings. That

action remains active in the Second Court of Appeals as 02-13-00409-CV; docket on the appeal

is publicly available and kept current at the following URL where the Board may freely view it:

http://www.search.txcourts.gov/Case.aspx?cn=02-13-00409-CV.

7. Though Morton objected to the abatement initially in her own proceedings, this Board

decided to suspend the opposition action in her application seeking to register "TIMARRON

COLLEGE PREP" and significant work at the state level regarding the dispute has occurred.

8. Under the same reasoning employed by the Board to suspend action in the opposition to

Morton's application 8551680, Morton now asks the Board to suspend the opposition at bar

pursuant to 37 CFR 2.117, as the resolution of the state action will have significant bearing on

the outcome of this proceeding.

Appendix A, p. 64


II. Prayer

WHEREFORE, Morton respectfully requests that the Board grant the Motion and

suspend Opposition No. 91212131until the state case is final.

Respectfully submitted,

By: /Warren V. Norred/

Warren V. Norred, Texas Bar No. 24045094

200 E. Abram, suite 300, Arlington, TX 76001

Tel. (817) 704-3984, Fax. (817) 549-0161

Attorney for PLAINTIFFs

CERTIFICATE OF SERVICE - I certify that on December 11, 2013, a true and correct copy

of this Motion to Suspend was served by fax to John Wilson at 972.248.8088.

Warren V. Norred

Appendix A, p. 65

Applicant's Objection to Motion to Suspend Opposition



BARBARA MORTON


v. Mark: TIMARRON


Applicant.

EXHIBIT A

MOTION TO SUSPEND FOR CIVIL ACTION

IN RELATED OPPOSITION 91207557

Exh. A, p. 1Appendix A, p. 66



BEFORE THE TRADEMARK TRIAL AND APPEAL BOARDProceeding 91207557Party Plaintiff

Timarron Owners Association, Inc.CorrespondenceAddress

JOHN T WILSONWILSON LEGAL GROUP PC16610 DALLAS PARKWAY 2000DALLAS, TX 75248UNITED [email protected], [email protected],[email protected], [email protected]

Submission Motion to Suspend for Civil ActionFiler's Name John T. WilsonFiler's e-mail [email protected], [email protected] /John T. Wilson/Date 06/12/2013Attachments Opposer's Motion to Suspend Opposition 6.12.13.pdf(5602720 bytes )


IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In the matter of trademark Serial No.: 85/516680 Mark: TIMARRON COLLEGE PREP Published in the Official Gazette on October 16, 2012

TIMARRON OWNERS ASSOCIATION, INC Opposer,

v.

TIMARRON COLLEGE PREP Applicant.

Opposition No. 91207557

MOTION TO SUSPEND OPPOSITION PURSUANT TO 37 C.F.R. 2.117

Opposer files this Motion to Suspend Opposition Pursuant to 37 C.F. R. 2.117, as

authorized by Title 37 2.117 of the U.S. CODE OF FEDERAL REGULATIONS.

I. Procedural Background

1. Opposer is Timarron Owners Association, Inc. ("TOA'') ; Applicant is Timarron

College Prep ("TCP").

2. On or about October 18, 2012, Opposer filed its Notice of Opposition against

Applicant, in light of Opposer's superior rights in and to "TIMARRON," and in light of

Applicant's seeking to register the word mark TIMARRON COLLEGE PREP as a trademark for

"after school tutoring programs" and "education services" in International Class 041.

3. On or about July 26, 2012, Opposer filed its Original Petition in Timarron

Owners Association, Inc. v Barbara Louise Morton d/b/a College Prep; Cause No. 096-260449-

12, pending in the District Court of the 96th Judicial District of Tarrant County Texas (the "Civil

Lawsuit") alleging claims of Trademark Infringement, Unjust Enrichment, Tortious Interference,

MOTION TO SUSPEND OPPOSITION PAGEl


and Unfair Competition as they pertain to the TIMARRON mark, and seeking inter alia, for the

Court to restrain TCP from trading off of the good will and reputation of TOA's TIMARRON

mark. A true and correct copy of said Original Petition is attached hereto as "Exhibit 1" and is

incorporated by reference as if fully set forth herein.

4. On or about September 7, 2012, TCP filed its Original Answer and Counterclaim

in the Civil Lawsuit. A true and correct copy of said Original Answer and Counterclaim is

attached hereto as "Exhibit 2" and is incorporated by reference as if fully set forth herein.

5. On or about October 11 , 2012, TOA filed its Original Answer and Special

Exceptions to Defendant/Counter-Plaintiffs Original Counterclaim.

6. The Civil Lawsuit is currently in the discovery stage of litigation.

II. Arguments & Authorities

7. 37 C.F.R. 2.117(a) states:

Whenever it shall come to the attention of the Trademark Trial and Appeal Board that a party or parties to a pending case are engaged in a civil action or another Board proceeding which may have a bearing on the case, proceedings before the Board may be suspended until termination of the civil action or the other Board proceeding.

8. Accordingly, Timarron Owners Association, Inc. respectfully requests that this

Board suspend this action in light of the Civil Lawsuit for the reason that the Civil Lawsuit,

because it includes a cause of action for trademark infringement related to the Mark and seeks

declaratory relief determining the owner of the Mark, is likely to have a substantial bearing on

the outcome of this proceeding.

MOTION TO SUSPEND OPPOSITION PAGE2


B. Conclusion

For these reasons, because of the Civil Lawsuit in which Timarron Owners Association,

Inc. and Timarron College Prep are currently engaged, Timarron Owners Association asks The

Trademark Trial and Appeal Board to suspend this opposition proceeding pending the resolution

ofthe Civil Lawsuit.

DATED: June 12,2013.

MOTION TO SUSPEND OPPOSITION

Respectfully submitted, WILSON LEGAL GROUP P.C.

By: Is/John T. Wilson John T. Wilson State Bar No. 24008284 Kandace D. Walter State Bar No. 24047068 16610 Dallas Parkway, Suite 2000 Dallas, Texas 75248 (T) 972.248.8080; (F) 972.248.8088;

ATTORNEYS FOR OPPOSER TIMARRON OWNERS ASSOCIATION, INC.

PAGE3


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above Motion has been served upon

Opposer, by and through its counsel of record, pursuant to Rules of Federal Civil Procedure on

June 12, 2013.

Mark W. Handley Handley Law Firm, PLLC P.O. Box 97 Grapevine, Texas 76099-0097 Facsimile: (972) 518-1777

MOTION TO SUSPEND OPPOSITION

Warren V. Norred 200 E. Abram Suite 300 Arlington, TX 76001 Facsimile: (817) 549-0161

Is/John T. Wilson John T. Wilson

PAGE4


"EXHIBIT 1"


TIMARRON OWNERS ASSOCIATION, INC.

Plaintiff,

v.

BARBARA LOUISE MORTON D/B/A TIMARRON COLLEGE PREP

Defendants.

IN THE DISTRICT COURT

\'--" C\\0. JUDICIAL DISTRICT

TARRANT COUNTY, TEXAS

PLAINTIFF TIMARRON OWNERS ASSOCIATION, INC.'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff TIMARRON OWNERS ASSOCIATION, INC. and files this

Original Petition against BARBARA LOUISE MORTON DIBIA TIMARRON COLLEGE

PREP (the "Petition"), and in support of said Petition avers the following:

I. DISCOVERY CONTROL PLAN

1. Plaintiff intends to conduct discovery under Level2 of the TEXAS RULE OF CNrr..

PROCEDURE 190.3/190.4.

II. VENUE AND JURISDICTION

2. Plaintiff TIMARRON OWNERS ASSOCIATION, INC. ("TIMARRON") is a

Texas corporation whose principal place of business is located in Tarrant County, Texas.

3. Defendant BARBARA LOUISE MORTON D/B/A TIMARRON COLLEGE

PREP ("MORTON") is an individual who resides and may be served at 476 Cherokee Ct. S.,

Keller, Texas 76248 or wherever else she may be found. .. . .._ '~

PLAINTIFF TIMARRON OWNER'S ASSOCIATION ORIGINAL PETITION


4. This Court has jurisdiction over this matter because the amount in controversy is

within the jurisdictional limits of the Court.

5. Venue is appropriate in Tarrant County in that all or substantially all of the acts

and/or omissions that form the basis of this suit occurred in Tarrant County, Texas.

III. FACTUAL BACKGROUND

6. TIMARRON is the owner of a trademark, specifically, Texas Trademark

Registration No. 800205842 (the "Mark"). A true and correct copy of the Texas Secretary of

State' s Record for the Mark and the Assignment of said Mark to TIMARRON is attached hereto

as "Exhibit A" and is incorporated by reference as if fully set forth herein.

7. The Mark was first used in commerce as early as the Declaration of Covenants,

Conditions, and Restrictions for TIMARRON, dated May 15, 1992.

8. MORTON has been using the Mark in connection with its promotions,

advertisements, websites, and operations without TIMARRON' s authorization or permission.

9. MORTON' s unauthorized use of the Mark has caused consumers to erroneously

believe that MORTON is sponsored by, connected to, and/or otherwise affiliated with

TIMARRON.

10. MORTON's unauthorized use of the Mark has caused consumers to erroneously

believe that MORTON's goods and/or services are sponsored by, connected to, and/or otherwise

affiliated with TIMARRON.

11. MORTON' s unauthorized use of the Mark has caused consumers to erroneously

believe that MORTON's websites, including, but not limited to, www.timarroncollegeprep.com,

are sponsored by, connected to, and/or otherwise affiliated with TIMARRON.

P LAINTIFF TIMARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGE2


12. MORTON has purposely used the Mark to cause confusion in the marketplace

with regard to the sponsorship, approval, and/or affiliation of MORTON's goods and/or services

with TIMARRON.

13. MORTON has intentionally and fraudulently held her goods and/or services out

to be the products of TIMARRON.

14. MORTON's promotion, advertisement, and/or operation under the Mark has

tortuously interfered with TIMARRON's ability to consummate sales with customers who are

attempting to purchase products sponsored by, approved by, and/or otherwise connected with

TIMARRON.

15. On or about January 18, 201:2, counsel for TIMARRON issued a cease and desist

letter to MORTON directing her to stop her promotion, advertisement, and operation under the

Mark and any other unauthorized use of the Mark (the "C&D Letter") . A true and correct copy

of said C&D Letter is attached hereto as "Exhibit B" and is incorporated by reference as if fully

set forth herein.

16. Despite receiving the C&D Letter, MORTON has continued her unauthorized use

of the Mark and sale of goods bearing the Mark.

17. MORTON has sold goods bearing the Mark and/or promoted herself, advertised

herself, and/or operated under the Mark in the State of Texas, including, but not limited to, in

Tarrant County.

IV. SUMMARY OF CAUSES OF ACTION

18. This suit is for the following causes of action against MORTON: i) Trademark

Infringement Under TEXAS BUSINESS AND COMMERCE CODE 16.26; ii) Unjust Enrichment; iii)

Tortious Interference with Prospective Business Relations; and, iv) Unfair Competition.

PLAINTIFF T IMARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGE3


V. CAUSES OF ACTION

19. TIMARRON hereby reincorporates paragraphs 1 through 18 in accordance with

TEXAS RULE OF CIVIL PROCEDURE 58.

TRADEMARK INFRINGEMENT UNDER TEXAS BUSINESS AND COMMERCE CODE 16.26

20. TIMARRON owns the Mark, registered under Chapter 16 of the TEXAS BUSINESS

AND COMMERCE CODE.

21. MORTON, without TIMARRON's consent, authorization, or permission, used

and continues to use the Mark and/or a colorable imitation of the Mark in connection with the

selling and offering for sale of goods and/or services in the State of Texas when such use was

and is likely to deceive and/or cause confusion and/or mistake as to the source or origin of said

goods.

22. TIMARRON has been damaged by MORTON's unauthorized use of the Mark.

23. Pursuant to TBCC 16.26(c), TIMARRON is entitled to have MORTON enjoined

from using the Mark in the State of Texas.

24. Pursuant to TBCC 16.26(d), TIMARRON is entitled to recover all damages

caused by MORTON's unauthorized use of the Mark since at least the date ofthe C&D Letter,

when MORTON had constructive notice ofTIMARRON's ownership of the Mark.

UNJUST ENRICHMENT

25. TIMARRON owns the Mark, constituting a valuable, proprietary resource.

26. MORTON unlawfully misappropriated and traded upon the Mark for use in her

own proprietary endeavors.

27. MORTON has been unjustly enriched by her unlawful misappropriation and use

ofthe Mark, to TIMARRON's detriment.

PLAINTIFF TIMARRON OWNER'S ASSOCJATION ORIGlNALPETJTlON PAGE4


28. TIMARRON is entitled to recover all valuable considerations MORTON has

gained by her unlawful misappropriation and use of the Mark.

TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS

29. TIMARRON, through its use of its Mark, was reasonably likely to enter in

business relations with consumers.

30. MORTON, by her continued, unauthorized use of the Mark after receiving notice

of TIMARRON's ownership thereof through the C&D Letter, intentionally interfered with

TIMARRON' s prospective business relations by diluting the Mark and creating confusion about

the Mark in the market.

31 . MORTON's unauthorized use of the Mark was and is tortious and unlawful.

32. MORTON's tortious interference has caused injury to TIMARRON by diluting

the Mark and creating confusion about the Mark in the market, directly and detrimentally

impacting TIMARRON's ability to consummate business relations with consumers.

UNFAIR COMPETITION

33. TIMARRON owns the Mark, constituting a valuable trade resource.

34. TIMARRON has developed goodwill associated with the Mark

35. MORTON unlawfully misappropriated the Mark and traded upon the goodwill

developed therein in furtherance of her own commercial goals and to the detriment of

TIMARRON' s commercial endeavors.

36. MORTON's unlawful use ofthe Mark has caused TIMARRON injury.

VI. DEMAND FOR ACCOUNTING, REQUEST FOR TURN OVE~ AND REQUEST TO HOLD HARMLESS

31. Pursuant to TBCC 16.26, TIMARRON demands an accounting of MORTON's

sales resulting from MORTON's unlawful use of the Mark and/or sales involving MORTON's

PLAINTIFF TIMARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGES


goods bearing the Mark and/or services sold under the Mark. TIMARRON requests that, after

such accounting, all MORTON's profits from such sales, particularly those sales occurring after

the C&D Letter had been received and notice ofTIMARRON's ownership of the Mark given, be

paid to TIMARRON. TIMARRON further requests all goods and advertisements bearing the

Mark in MORTON's possession be turned over to TIMARRON and/or destroyed as the Court

deems proper.

32. TIMARRON requests the Court order MORTON to indemnifY and hold harmless

TIMARRON against any and all possible claims of third parties arising out of the sale, offer of

sale, distribution or use of MORTON's goods bearing the Mark or that bear confusingly similar

designs to the Mark or otherwise based on or incorporating TIMARRON' s Mark. TJMARRON

further requests the Court order MORTON to identifY vendors or resellers used to produce or sell

their infiinging goods.

VII. APPLICATION FOR TEMPORARY RESTRAINING ORDER

33. Because of MORTON's unauthorized use of the Mark, MORTON has

undermined TIMARRON's business by selling goods and/or products that bear the Mark and/or

confusingly similar designs and/or by falsely representing the goods produced and/or sold by

MORTON have the sponsorship ofTIMARRON.

34. MORTON's sale of goods and/or products bearing the Mark and/or confusingly

similar designs have caused and continue to cause TIMARRON irreparable harm for which there

is no adequate remedy at law.

35. Since TIMARRON can readily establish itself as owner of the Mark,

TIMARRON is likely to succeed on the merits of the case prohibiting MORTON's unauthorized

use of the Mark and confusingly similar designs.

PLAINTIFF TIMARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGE6


36. The injury faced by TIMARRON outweighs the injury that would be sustained by

enjoining MORTON from her unauthorized use of the Mark and related stylistic designs.

37. Furthermore, the Court's granting of a temporary restraining order against

MORTON's use of the Mark and confusingly similar designs would not adversely affect public

policy or public interest.

38. TIMARRON respectfully demands that MORTON be restrained from selling any

goods and/or products containing either the Marks and/or confusingly similar designs. If

necessary, TIMARRON is willing to post a bond in order for the Court to issue the temporary

restraining order against MORTON.

VIII. ATTORNEY'S FEES

39. Because of the conduct of MORTON, TIMARRON has been compelled to

engage the services of an attorney to prosecute this action. As a result, TIMARRON is entitled

to recover both jointly and severally from MORTON a reasonable sum for the necessary services

of Wilson Legal Group, P .C. in the preparation and trial of this action and for any appeals related

thereto.

IX. CONDITIONS PRECEDENT

40. All conditions precedent to Plaintiff's causes of action have been performed

and/or have occurred.

X. RULE 194 REQUEST FOR DISCLOSURE

41. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, MORTON is

requested to disclose within fifty (SO) days after service of this request, the information or

material described in Rule 194 of the Texas Rules of Civil Procedure. The originals or copies of

documents and other tangible items requested must be produced for inspection and copying at

PLAINTIFF T IMARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGE7


Wilson Legal Group P.C., 16610 Dallas Parkway, Suite 2000, Dallas, Texas 75248 together with

a written response. Each written response must be preceded by the request to which it applies.

No objection or assertion of work product privilege is permitted to a request under this rule.

XI. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff TIMARRON OWNERS

ASSOCIATION, INC., respectfully requests:

a. That judgment be entered in favor of Plaintiff against Defendant BARBARA

LOUISE MORTON D/B/A TIMARRON COLLEGE PREP for actual damages in

an amount in excess of the minimum jurisdictional limits of the Court as can be

shown;

b. An award of Plaintiffs actual and special damages as pleaded within the

jurisdictional limits of the Court;

c. An award to Plaintiff of Defendant's ill-gotten profits;

d. An award of Plaintiff's court costs in an amount to be determined by the Court;

e. An award of Plaintiff's reasonable and necessary attorneys' fees;

f. That Plaintiff recover pre-judgment and post-judgment interest on all sums

awarded at the highest rate permitted by law; and

g. An award to TIMARRON for such further relief, at law or in equity, to which it is

justly entitled.

PLAINTIFF T!MARRON OWNER'S ASSOCIATION ORIGINAL PETITION PAGES


DATED: July 26,2012.

Respectfully submitted, WILSON LEGAL GROUP P.C.

By: /s/.John T. Wilson John T. Wilson State Bar No. 24008284 Kandace D. Walter State Bar No. 24047068 16610 Dallas Parkway, Suite 2000 Dallas, Texas 75248 (T) 972.248.8080; (F) 972.248.8088;

ATTORNEYSFORTIMARRON OWNERS ASSOCIATION, INC.

PLAINTIFF TIMARRON OWNER'S ASSOCIATION ORIGINAL P ETITION PAGE9


. .

"EXHIBIT A"


TRADEMARK INQUIRY - VIEW TRADEMARK ' . Page 1 of 1

TEXAS SECRETARY of STATE HOPE ANDRADE

UCC 1 Business Organizations I Trademarks I Notary I Account I HelpfFees I Briefcase I Logout TRADEMARK INQUIRY -VIEW TRADEMARK

Registration Number: Status: Classification:

Word Description: . Disclaimer:

800205842 Registered Insurance & Financial: Class 36 TIMARRON N/A

Registration Date: Date of Expiration: Design Code:

July 18, 2003 July 18, 2013 031702

REGISTRANTS FILING HISTORY CLASSIFICAT ION

Last Update May 21.2003

Name Timarron Owners Association, Inc.

I Return to Search J l- --- --------- - --

Address 700 Wentwood Drive Southlake , TX 76092 USA

I l

__I

https://directsos.state.tx. us/tm _inquiry/tm _inquiry-trademark.asp?spage=reg&:Sregistratio. .. 7/17/2012


ASSIGNMENT OF ~GlSTRATION OF A TRADEMARK/SERVICE MARK

FILED In the Office of the

Secretary of State of Texas

To: Office of the Secretary of State Corporations Section P. 0. Box 13697 Austin, Texas 78711-3697

Asillgnor: Westerra Timarron L.P.

Address: 13155 Noel Road-LB54, Suite 700

City: Dallas State:

Registration No. 800205842

. ~ssigoee: Timarron Owners Association, Jnr . 700 Wentwood Drive Southlake, Texas 76092

Texas

.FEB 16 2010 Corporations Section

Zip: 75240

"Date of-Registration: May 21, 2003

Except as hereinafter provided, Assignor assigns to Assignee all right, title and interest in a~d to tbe above referenced mark and its registratio-.., together with the good will of the business with whicb the mark is used, or that part of tb~ good will connected with the use of, and symbolized by, the mark. Assignor reserves the rig~t to continue to u~e this mark in its name and for the limited purpose of marketing, promotion~ adver!lsement; djstribution, lease or sale of Assignor's products and services.

Date: \-8 "'l0

f/misc/assignmentoftegistrationoftradcmilrk. westerra-timarron . ... J


"EXHIBIT B"


WILSON LEGAL GROUP P.C. 16610 Dallas Parlrway Suite 2000 Dallas, Texas 75248

Telephone 972.248.8080 Facsimile 972.248.8088

Attomeys & Counselors at Law

John T. Wilson E-mail: [email protected]

Barbara Morton Timan-on College Prep 630 E. Southlake Blvd., Suite 111 Southlake, Texas 76092

Barbara Morton Timarron College Prep 251 E. Southlake Blvd., Suite 110 Southlake, Texas 76092

Barbara Morton Timarron College Prep 251 S. Main Street, Suite 101 KelJer, Texas 76248

-v.w.w.ilsonlegalgroup.com

January 18, 2012

(Via Certified Mail, Return Receipt Requested No. 7010-1870-0001-6973-3232 and Regular First Class Mail)



Re: CEASE AND DESIST NOTICE

To Whom it May Concern:

Please be advised that this firm represents Timarron Owners Association, Inc. (hereinafter the "HOA"). As you may know, "Timarron" (hereinafter the "Mark") is a state registered trademark (Registration No. 800205842) of the HOA and the use of the Mark, without our client's express consent, is a violation of state and federal trademark laws under which the Mark is protected.

Your promotion, advertisement, and operation under the Mark constitutes an infringement of the HOA's common law, state, and federal trademark rights. Consumers, retailers, wholesalers, real estate professionals, and the public at large will be and probably have already been misled into believing that you are affiliated with our client, that you are approved, sponsored or supplied by it, or the reverse.

ACCORDINGLY, TAKE NOTICE THAT YOUR ARE HEREBY NOTIFIED TO IMMEDIATELY CEASE AND DESIST THE USE OF THE MARK AND ALL CONFUSINGLY SIMILAR VARIA TJONS OF THE MARK.


Cease and Desist Notice January 18, 2012 Page 2 of2

Under the circumstances, we demand that you immediately cease and desist all further promotion, advertisement, and operation under the name Timarron or any variation of the Mark. In particular, we demand that you do not display any signage, distribute any literature, promotional items, or in any other way advertise the name Tirnarron in print or on the internet.

We wish to receive your assurances in writing by noon on January 25, 2012, that you will comply with the above cease and desist demand. If you fail to advise us by then that you will not promote, advertise, or operate your business under the name Timarron, or any variations of the Mark, our client shall, without further notice to you, take such steps as may be necessary to assert its statutory rights to recover profits, damages, and costs thereof: attorney's fees, and otherwise to protect its interests.

This is a serious matter that requires your immediate attention. I urge you to handle this matter accordingly.

cc: Via Electronic Mail Client

Sincerely yours, WILSON LEGAL GROUP P.C .

.. ,~~:::-


"EXHIBIT 2"


Cause No. 096-260449-12

TIMARRON OWNERS ASSOC., INC. Plaintiff,

IN THE DISTRICT COURT

v.

96TH JUDICIAL DISTRICT

BARBARA LOUISE MORTON D/B/A/ TIMARRON COLLEGE PREP Defendant.

TARRANT COUNTY, TEXAS

DEFENDANT MORTON'S ORIGINAL ANSWER, COUNTERCLAIMS, and MOTION TO TRANSFER

NOW COMES Defendant BARBARA LOUIS MORTON, files this Original Answer in

the above-styled and numbered cause, denying Plaintiffs claims, asking the Court for a

declaration that Defendant is not infringing any common law trademark claimed by Plaintiff, and

once the declaration is established, a transfer to Travis County District Court so that Defendant

may seek cancellation of the Texas-registered trademark of TIMARRON OWNERS

ASSOCIATION, INC, and would show the following:

I. PARTY VERIFICATION

I. Defendant/Counter-Plaintiff, BARBARA MORTON, is an individual residing in Tarrant

County, Texas, and may be contacted through her attorney of record, Warren Norred.

2. PlaintiffTIMARRON OWNERS ASSOCIATION, INC. has already appeared in this suit.

II. JURISDICTION AND VENUE

3. The subject matter in controversy is within the jurisdictional limits of this court.

4. Plaintiff has established venue in Tarrant County, so venue for the counterclaims is also

properly in Tarrant County under TEX. C!V. PRAC. & REM. CODE 15.062(a).

5. Counterclaims against Plaintiff may require transfer to Travis County if the suit progresses to

an action on the merits of those claims.

96-260449-12, Defendant's Original Answer & Counterclaims Page 1


Ill. GENERAL DENIAL

6. Defendant denies each and every allegation of Plaintiffs Original Petition.

IV. COUNTERCLAIM FOR DECLARATORY JUDGMENT

7. Defendant requests that this Court issue declaratory judgment that it has not infringed any

trademark belonging to Plaintiff. pursuant to the Texas Uniform Declaratory Judgments Act,

Texas Civil Practice and Remedies Code, Chapter 37, in that:

a. Defendant's trademark has been active since 2008, during which time it has provided

tutoring services. which falls under trademark International Class 41.

b. Plaintiffs Texas-registered trademark, provided in its petition, is for insurance and

financial services, falling under trademark International Class 36.

c. Plaintiff has based its case under an incorrect theory that that every mark that includes

the word "Timarron" infringes Plaintiffs mark. However. there are nearly 40

businesses in Texas that use "Timarron" or a similar mark, including a home owner's

association in San Antonio, the Tamaron Property Owners Association. which has

existed and used the mark for seven years prior to Plaintiffs Texas registration.

V. COUNTERCLAIM FOR DISCLAIMER OR CANCELLATION

8. Defendant requests that this Court issue an order cancelling Plaintiffs trademarks, as

Plaintiff does not appear to provide serv ices that would appropriately fall under Class 36,

and should be cancelled pursuant to TEX. Bus. & COM. CODE 16.064(4)(D) [registered

mark was obtained fraudulently].

VI. COUNTERCLAIM FOR TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

9. Defendant has suffered damages for Plaintiffs agents actions that have interfered in



potential leases and other contracts, and caused Defendant to suffer malicious and wanton

interference, disturbance, or annoyance in her business dealings.

VII. MOTION TO TRANSFER

10. In accordance with TEX. Bus. & COM. CODE 16.106 (20 12), this action must be

transferred to Travis County, as it includes an action to cancel a trademark. Defendant is

content to allow discovery and time for a potential settlement before a hearing on this

motion to transfer in the hope that the issue might be settled before hearing and court be

required to order on this issue.

VIII. ATTORNEY FEES

11. In accordance with TEX. CIV. PRAC. & REM. CODE 37, Defendant requests attorney fees.

IX. PRAYER

12. Defendant prays the CoUI1, after notice and hearing or trial, enters declaratory judgment

in favor of Defendant, cancel or amend Third-Party Defendant's registered trademark,

awards Defendant the costs of court, attorney's fees, and such further relief as Defendant

may be entitled to in law or in equity .

By: ~~~~~~~~~~~~----Warren V. Norred, Texas Bar 200 E. Abram, Suite 300, Arlington, TX 760 10 Tel. (8 17) 704-3984, Fax. (8 17) 549-0161



Applicant's Objection to Motion to Suspend Opposition



BARBARA MORTON


v. Mark: TIMARRON


Applicant.

EXHIBIT B

MOTION FOR SUMMARY JUDGMENT

BY OPPOSER MORTON, IN CAUSE NO. 96-260449-121,

96TH DISTRICT COURT, TARRANT COUNTY, TEXAS

Exh. B, p. 1Appendix A, p. 92

. -\ Cause No. 096-260449-12 S

TIMARRON OWNERS ASSOC., INC. Plaintiff,

o-:"'

IN THE DISTRICT CO~lp ?J c..f!

~y v. 96TH JUDICIAL DISTRIG:l' .. I ". f1i ~- .

:;::.>---BARBARA LOUISE MORTON D/B/A/ TIMARRON COLLEGE PREP

-;;:. ~~~\ TARRANT COUNTY, TEXAS c:~

Defendant. ,..

DEFENDANT MORTON'S TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

Defendant Morton asks the court to sign a final summary judgment against Plaintiff on all claims

under the traditional and no-evidence standards, and in favor of Defendant's Counter-Claims.

A. Introduction

I. Plaintiff sued Defendant Morton for: a. trademark infringement, b. unjust enrichment, c. tortious interference with prospective business relations, and d. unfair competition.

2. Defendant answered the suit with counterclaims for: a. declaratory judgment, b. disclaimer or cancellation of Plaintiffs Texas-registered mark, c. tortious interference with business relations, d. motion to transfer the case to Travis County, and e. attorney fees.

3. Discovery in this suit is governed by a Level 2 discovery control plan.

B. Defendant moves for a No-Evidence Summary Judgment against Plaintiff's Claims

4. Trademark Infringement - Plaintiff can show no evidence that Defendant used Plaintiffs

registered mark in connection with the selling and offering for sale of goods that is likely to

deceive or cause confusion or mistake as to the source or origin of said good, which is

required to constitute infringement under TEX. Bus. & COMM. CODE 16.26, because

96-260449-12, Defendant's Traditional and No Evidence MSJ Page 1

-\


Plaintiff's mark represents only insurance & financial products found in International

Trademark Class 36 (see Plaintiff's Original Petition, Exhibit A), and Defendant uses the

mark only to advertise tutoring services that no reasonable person could associate with

Plaintiff's mark. Without evidence of likely confusion, the infringement claim must fail.

5. Unjust Enrichment - Generally, to sustain an action for unjust enrichment, there must be some basis for the law to infer a promise on the part of the defendant to the plaintiff to pay

for the benefit or property, as discussed in Berger Engineering Co. v. Village Casuals, Inc.,

576 S. W .2d 649, 652 (Tex. Civ. App.--Beaumont 1978, no writ) ("there must exist between

the parties an implication that the party performing the services would be paid by the party

accepting and benefiting by them"). The absence of such a relationship between a coventurer

and the other coventurer's father, for example, defeated a coventurer's claim of unjust enrichment against the father, even though the father took depreciation and operating losses

stemming from the joint venture as deductions in his personal federal income tax return in Shwiff v. Priest, 650 S. W .2d 894, 902 (Tex. App.-San Antonio 1983, writ refd n.r.e.). Plaintiff can show no relationship between the Parties that will sustain a claim for unjust enrichment, so its claim must fail.

6. Tortious Interference With Prospective Business Relations - Plaintiff's claim must fail

because Plaintiff can provide no evidence on any of its elements, as listed in Faucette v.

Chantos, 322 S.W.3d 901, 914 (Tex. App.--Houston [14th Dist.] 2010, no pet. h.):

a. There must be a "reasonable probability" that the plaintiff would have entered into the

prospective relations. This must be a specific relationship.

b. The defendant's conduct must have been independently tortious or wrongful.

c. The defendant's interference must have resulted in actual harm or damage.

96-260449-12, Defendant's Traditional and No Evidence MSJ Page2


d. The defendant's acts of interference must have been the proximate cause of the plaintiffs

damages.

e. When the interference is with prospective business relations that are the subject of competition, the plaintiff must show defendant's actions violated antitrust laws or caused

third persons to refuse to deal with the plaintiff. Caller-Times Pub. Co. v. Triad

Communications, 855 S. W .2d 18, 22 (Tex. App.-Corpus Christi 1993, no writ).

7. Unfair Competition- Among other elements, Plaintiff must prove that Defendant's use of the

trade mark would be likely to confuse the public. Thompson v. Thompson Air Conditioning &

Heating, Inc., 884 S. W .2d 555, 558 (Tex. App.-Texarkana 1994, no writ). As the Parties

provide very different services that have no relation, Defendant's use of the mark would not

be likely to confuse the public.

8. Defendant attaches affidavits to this motion as Exhibit A to establish facts in support of this

motion and incorporates the affidavits by reference.

C. Argument & Authorities Supporting Defendant's No-Evidence Motion

9. A court may grant a no-evidence motion for summary judgment if the movant can show that adequate time for discovery has passed and the nonmovant has no evidence to support one or

more essential elements of its claim or defense. TEX. R. CIV. P. 166a(i).

I 0. An adequate time for discovery has passed.

11. Defendant is entitled to summary judgment because Plaintiff cannot, by any admissible evidence, demonstrate there is any evidence to support the specific elements as discussed

supra, causing all five of Plaintiff's substantive claims to fail.



D. Defendant also moves for a Traditional Summary Judgment against Plaintifrs Claims

12. To prevail on summary judgment, a movant must conclusively establish all elements of its cause of action as a matter of law, TEX. R. Crv. P. 166a(c); Defendant herein incorporates the

prior factual discussion in previous paragraphs, and adds the additional facts and argument in

support of a traditional summary judgment as follows. 13. Facts- There is no reason to believe that consumers will confuse TIMARRON OWNER'S

ASSOCIATION with TIMARRON COLLEGE PREP, as consumers are already aware of

these two businesses and others in operation in the Southlake and surrounding area, along

with many others, and would not see yet another business in the area using the word

TIMARRON as connected to Plaintiff. As discussed in Exhibit A, the following commercial

enterprises exist near Plaintiff:

a. "The Courtyard at Timarron" is a current business in Southlake, TX. b. "The Villages at Timarron" is a current business in Southlake, TX. c. "Timarron Family Medicine, PA" is a current business in Southlake, TX. d. "Timarron at Creekside Park" is a current business in Southlake, TX. e. "Timarron Financial Services, LLC" is a current business in Southlake, TX. f. "Timarron Partners, Inc." is a current business in Grapevine, TX. g. "Timmaron LLC" is a current business in Richardson, TX. h. "Timarron Capital Inc" is a current business in Irving, TX. i. "Timarron Custom Homes, Inc." is a current business in Keller, TX. j. "Timarron Venture, Ltd." is a current business in Dallas, TX. k. "Timarron Venture One, L.C ... is a current business in Dallas, TX. I. "Timarron Shopping Center, L.P." is a current business in Dallas, TX. m. "Timarron Mortgage Group Inc." is a current business in Dallas, TX. n. "Timarron Land Corporation" is a current business in Mesquite, TX. o. "Timarron Skin & Laser" is a current business in Southlake, TX. p. "Timarron Professional Eye" is a current business in Southlake, TX. q. ''Timarron Golf Club Maintenance" is a current business in Southlake, TX. r. "Timarron Family Medicine" is a current business in Southlake, TX. s. "Village at Timarron 4120" is a current business in Southlake, TX. t. "Timarron Tiger Sharks" is a current business in Southlake, TX.



14. No similarity of Goods - Plaintiff's claims requires at least a reasonable possibility that

consumer confusion might result from Defendant's use of the word "Timarron", but the

services provided by TIMARRON OWNER'S ASSOCIATION is not remotely connected to

the educational tutoring services provided by Defendant.

15. No Confusion - After recognizing that the services offered by the Plaintiff and Defendant are

so different, and there are so many other commercial enterprises using the word .. Timarron",

no reasonable person could be confused as to think that one organization is responsible for all

of the enterprises.

16. Affirmative Defense of Laches - Applicant has been using TIMARRON as part of her mark

for years, along with many other entities in the area. Timarron home owners have employed

Defendant's mentoring services for years. The delay in filing suit was not reasonable or

excusable. Though the Lanham Act has no Statute of Limitations, federal courts often look to

state law and apply the doctrine of laches accordingly; the Texas Deceptive Trade Practices

Act has a statute of limitations of two years, which supports a finding of laches in this case.

Plaintiff cannot lie in wait while Defendant builds her business and then try to force a

business name change.

17. Affirmative Defense of Dilution - The word "TIMARRON" is used by many businesses in

the Southlake, TX area. In the minds of consumers, the word "TIMARRON" is not attached

to one particular business. The word "TIMARRON" is diluted; no single. entity can claim

exclusi

Appellant's Brief in Texas Courts of Appeal

Documents

appellants brief morton

norred tx bar number

appellant oral argument

appellee trial court

state bar number

identity of parties

timarron owners association

statement of jurisdiction