• TRADEMARK LAWS

United States Seventh Circuit

BEVERLY STAYART v. YAHOO! INC. (Decided on 30.09. 2010)

Trademark infringement - district court dismissed complaint finding that Stayart pleaded herself out of court- Hence appeal- Whether she has standing under the Lanham Act-appeal by Stayart lacks standing under the Lanham Act to make a claim under § 43 as she does not have a commercial interest in her name-the district court properly dismissed her Lanham Act claim. The district court also did not abuse its discretion in denying Stayart leave to re-file. The judgment of the district court is Affirmed.

In the complaint, Stayart describes herself as a “sophisticated, well-educated, and highly intelligent professional woman.” She has an M.B.A. from the University of Chicago, she has written a few papers that appear on the internet, and she is passionate about the environment, particularly the plight of wild horses, wolves, and baby seals. She has written two poems about baby seals that appear on a Danish website and has vigorously protested against their treatment.

This case centers on what she found. Among the results she anticipated, there were also links to online pharmaceutical companies, links to pornographic websites, and links that directed her to other websites promoting sexual escapades. She searched again and again in the following weeks, sometimes amplifying her searches. Each time links directing her to online pharmaceutical companies would appear. She repeated these searches numerous times, sometimes changing the terms. At one point, she noticed her name appeared linked to a weblog-“a blog”-that she had previously posted a comment on. But, when she clicked on the link, the content did not bear any relation to her comment, instead, it led her to another pornographic website.

Troubled by all of this, she wrote Yahoo and demanded that it remove all such results. It eventually emailed her, stating: “we do not aim to judge web for appropriateness or censor materials that we find offensive or inappropriate.” And Stayart responded by filing suit against Yahoo and the other defendants who had some relation to the material she found disagreeable, claiming trademark infringement and various other state law claims. Specifically, she claims that the defendants' conduct violated § 43(a) of the Lanham Act because the search results that appear with her name improperly gave her endorsement to pornography and online pharmaceuticals.

In the district court, the defendants moved to dismiss Stayart's complaint, which is forty-four pages long with over thirty exhibits. In a thorough and well-reasoned opinion, the district court granted the defendants' motion, finding that Stayart pleaded herself out of court. In particular, the district court found that because she did not have a commercial interest in her name, Stayart did not have standing under the Lanham Act to make a claim under § 43. It also declined to exercise supplemental jurisdiction over her remaining state law claims, and it denied her leave to file an amended complaint alleging diversity jurisdiction. Stayart appeals.

The first hurdle that Stayart must clear is to establish that she has standing under the Lanham Act. The district court found that she does not have a commercial interest in her name, and therefore lacks standing. On several occasions, we have held that before a plaintiff may assert a claim under the § 43(a) of the Lanham Act, she must have a commercial interest to protect. 15 U.S.C. § 1125(a). Rather than ask us to break from our precedent, Stayart takes the position that her charitable activities show she has a commercial interest in her name.

Stayart's argument hinges on the claim that by virtue of her extensive activities, her name has commercial value. These include: humanitarian efforts on behalf of baby seals, wolves and wild horses; what she describes as “scholarly posts” on a website; two poems that appear on a Danish website; and genealogy research. To determine whether a person or entity has standing under § 43(a).

The court looked at whether they have “a reasonable interest to protect” in a commercial activity. Stayart's goals may be passionate and well-intentioned, they are not commercial. And the good name that a person garners in such altruistic feats is not what § 43 of the Lanham Act protects. it “is a private remedy for a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor.”

Court took a review to a district court's denial for leave to amend a complaint for an abuse of discretion. The question of whether the district court's analysis on those claims was correct is not before us. The question is only whether it abused its discretion. It is clear after reviewing the record and the district court's analysis that it adequately considered the merits of the state law claims and the need to resolve them in federal court. And it did not abuse its discretion by denying her leave to amend.

Therefore, Stayart does not have standing under the Lanham Act to bring suit because she does not have a commercial interest in her name. Accordingly, the district court properly dismissed her Lanham Act claim. The district court also did not abuse its discretion in denying Stayart leave to re-file. The judgment of the district court is Affirmed.

United States Court of Appeals, Seventh Circuit

MOBILE ANESTHESIOLOGISTS CHICAGO LLC v. ANESTHESIA ASSOCIATES OF HOUSTON METROPLEX (Decided on 01.10.2010)

Trademark- violation the federal anti-cybersquatting statute-domain name confusingly similar-District court dismissed the suit for lack of personal jurisdiction-what is required for waiver or forfeiture-Held, the district court did not err in proceeding to the substance of the personal jurisdiction defense by asking to delay a preliminary injunction hearing or by asking for expedited discovery to prepare for that hearing.-To waive or forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking-Affirmed.

Plaintiff Mobile Anesthesiologists Chicago is a company based in Chicago that contracts with medical offices to provide on-site anesthesia services. Defendant Anesthesia Associates of Houston Metroplex is a much smaller operation consisting of one doctor providing similar services in Houston, Texas. Mobile/Chicago brought suit against Mobile/Houston in federal court in Illinois claiming that Mobile/Houston violated the federal anti-cybersquatting statute by registering a domain name confusingly similar to Mobile/Chicago's registered trademark. The district court dismissed the suit for lack of personal jurisdiction.

Court of Seventh Circuit affirmed. First, It conclude that Mobile/Houston did not waive its personal jurisdiction defense by asking to delay a preliminary injunction hearing or by asking for expedited discovery to prepare for that hearing. Second, it agree with the district court that Mobile/ Houston lacked the required “minimum contacts” with Illinois to support personal jurisdiction there. Mobile/ Chicago relies principally on the inference that Mobile/ Houston expressly aimed its conduct in Texas at harming Mobile/Chicago in Illinois. That inference is based on two inadequate connections between Mobile/Houston and Illinois: (1) Mobile/Houston's creation of a website accessible in Illinois but aimed only at the Houston market, combined with Mobile/Houston's constructive notice of Mobile/Chicago's trademark via federal registration of that mark; and (2) Mobile/Houston's receipt of Mobile/Chicago's cease-and-desist letter. These contacts are not sufficient to establish that Mobile/Houston's activities in Texas were calculated to cause harm in Illinois.

Factual and Procedural Background

Mobile/Chicago has been operating in the Chicago area since 1996. The company has affiliated offices in other cities, including Houston. The record does not reveal exactly when Mobile/Chicago's Houston affiliate began operations, but Mobile/Chicago alleges that it advertised its services in Houston in 2008.

In 2003, Mobile/Chicago registered the website < www.mobileanesthesiologists.com>, which it continues to operate today. Mobile/Chicago also owns a federally registered trademark in the words MOBILE ANESTHESIOLOGISTS. It obtained the trademark registration in 2005.

Mobile/Houston was established by Dr. Eric Chan, its sole member, in 2007. On August 22, 2008, Dr. Chan registered the website . Working under Mobile/Houston's name, Dr. Chan operates as an independent contractor providing anesthesia services for patients in clinics and medical offices throughout the Houston area.

Dr. Chan's professional activities are limited entirely to the state of Texas. He is licensed as an anesthesiologist by the State of Texas but has not been licensed in any other state. He has never advertised his services other than on his website (which offers anesthesia services “in the greater Houston area” and provides a Houston-area phone number) and in a printed advertisement published in Texas.

Dr. Chan has visited Illinois just once, on vacation in 2003. He has never visited Illinois for business, has never conducted business in Illinois, and has no agent or offices in Illinois. He has never attended events or performed duties in Illinois for any of the professional associations to which he belongs. And although he surely knew there were anesthesiologists in Illinois too, Dr. Chan was unaware that Mobile/Chicago, its trademark, or its website existed until he received a cease-and-desist letter from its lawyer in December 2008. There is no evidence that anyone else associated with Mobile/ Houston has any relevant contacts with Illinois.

The district court dismissed Mobile/Chicago's suit for lack of personal jurisdiction. The court pointed out that Mobile/Houston lacks any meaningful contacts with Illinois and that its website, though bearing a name similar to Mobile/Chicago's, is not directed at Illinois in any way. The assertion that Dr. Chan, sitting in Houston, knew about Mobile/Chicago and intended to do it harm in Illinois, was “entirely unsupported” and an “empty conclusion.”

Mobile/Chicago begins with the bold argument that Mobile/Houston waived its right to argue lack of personal jurisdiction when it asked for a continuance of the preliminary injunction hearing and an expedited discovery schedule. We disagree.

Mobile/Chicago filed its lawsuit in the Northern District of Illinois on February 13, 2009 and requested a preliminary injunction to stop Mobile/Houston's use of its domain name. The court scheduled a hearing for March 6, 2009. On March 3rd, Mobile/Houston's counsel filed a motion to continue the preliminary injunction hearing, which Dr. Chan could not attend because he was scheduled to see patients in Texas that day. The motion also requested expedited discovery to prepare for the hearing. Thirteen days later, on March 16, 2009, Mobile/Houston filed its Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.

These preliminary actions do not come close to what is required for waiver or forfeiture. To waive or forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking. See, e.g., American Patriot Ins. Agency, Inc. v. Mutual Risk Management, Ltd. where defense of improper venue was not waived or forfeited when defendant engaged in preliminary pretrial litigation activity; plaintiff should have anticipated defendant's objection, and defendant was not “testing the wind” or causing “wasted motion by the court”). Faced with an impending preliminary injunction hearing and unable to produce its key witness, Mobile/Houston had the right to ask for more time to learn who was suing it and why without losing its right to object to personal jurisdiction. The district court did not err in proceeding to the substance of the personal jurisdiction defense.

In a federal question case such as this one, a federal court has personal jurisdiction over the defendant if either federal law or the law of the state in which the court sits authorizes service of process to that defendant. Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104-05 (1987) (federal court should look to a federal statute or to the state long-arm statute to determine defendant's amenability to service, which is “a prerequisite to its exercise of personal jurisdiction”). The federal statutes on which Mobile/Chicago is suing do not authorize nationwide service. Mobile/Houston is amenable to service (and hence subject to personal jurisdiction) only if it could be served in Illinois under Illinois law. Illinois's long-arm statute permits the exercise of personal jurisdiction if it would be allowed under either the Illinois Constitution or the United States Constitution. See 735 Ill. Comp. Stat. 5/2-209(c). We have held that there is no operative difference between these two constitutional limits. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.2010); Hyatt International Corp. v. Coco, 302 F.3d 707, 715 (7th Cir.2002). We proceed to the question whether the exercise of personal jurisdiction would violate federal due process.

Under the Supreme Court's well-established interpretation of the Fourteenth Amendment's due process clause, a defendant is subject to personal jurisdiction in a particular state only if the defendant had “certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ “ International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). It is unconstitutional to force a defendant to appear in a distant court unless it has done something that should make it “reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980). The Court has also framed the constitutional inquiry in terms of whether the defendant “purposefully avails itself” of the benefits and protections of conducting activities in the forum state. See Hanson v. Denckla, 357 U.S. 235, 253 (1958).

Personal jurisdiction can be general or specific, depending on the extent of the defendant's contacts. See Tamburo, 601 F.3d at 701. Mobile/Chicago does not assert, and the evidence does not support, a claim of general jurisdiction over Mobile/Houston in Illinois, so Mobile/Chicago must show that Illinois can exercise specific jurisdiction over Mobile/Houston for this particular claim. Specific personal jurisdiction is appropriate when the defendant purposefully directs its activities at the forum state and the alleged injury arises out of those activities. See, e.g., Burger King, 471 U.S. at 472.

Mobile/Houston did not purposefully direct its activities at Illinois. It has formed no contracts in Illinois and has had no physical presence there. Mobile/Chicago points to the fact that Dr. Chan is a member of two professional associations headquartered in Illinois, but those are the kinds of fortuitous contacts that the Supreme Court has repeatedly held do not support personal jurisdiction where the contacts bear no relationship to the lawsuit. See, e.g., Burger King, 471 U.S. at 475; World-Wide Volkswagen, 444 U.S. at 295. Mobile/Houston simply has nothing to do with the state where it is being called to appear in court.

But Mobile/Chicago contends that Mobile/Houston has done two things in Texas to subject itself to suit in Illinois. First, Mobile/Houston has maintained a website with a name similar to Mobile/Chicago's trademark, with constructive notice of that trademark thanks to Mobile/Chicago's federal registration. Second, after receiving the cease-and-desist letter, Mobile/Houston has maintained its website with actual notice of Mobile/ Chicago's identity, location, and ownership of a similar mark. From these facts, Mobile/Chicago argues, we should infer that Mobile/Houston intended to injure Mobile/Chicago in Illinois, and from that intent we should find the contacts needed to satisfy due process. This argument is not persuasive.

Decision in Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. suggested a somewhat broader test, but did not actually adopt it. There we suggested that the state in which the alleged victim of a tort suffers the injury of that tort may automatically obtain personal jurisdiction over the defendant. We went on, however, to hold that we “need not rest on so austere a conception of the basis of personal jurisdiction.” The defendant-a Canadian Football League team in Baltimore-had planned to actually “enter” the forum state of Indiana via national broadcasts of its games, and the combination of that planned entry and the expected harm in Indiana was enough to support personal jurisdiction.

Mobile/Chicago's evidence that Mobile/Houston took express aim at Illinois is inadequate. Mobile/ Chicago first contends that we should infer express aiming at Illinois from the fact that Mobile/Houston operates a website whose domain name is similar to Mobile/Chicago's trademark. We disagree. A plaintiff cannot satisfy the Calder standard simply by showing that the defendant maintained a website accessible to residents of the forum state and alleging that the defendant caused harm through that website. See, e.g., Panavision International, L.P. v. Toeppen, 141 F.3d 1316, 1322 (9th Cir.1998) (“We agree that simply registering someone else's trademark as a domain name and posting a web site on the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in another.”); Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir.2002) (no express aiming where the defendant newspapers' only contacts with the forum state were through websites aimed at an out-of-state audience).

Still less does Mobile/Houston's website create constitutionally sufficient contacts with Illinois in the absence of express aiming. A defendant's deliberate and continuous exploitation of the market in a forum state, accomplished through its website as well as through other contacts with the state, can be sufficient to establish specific personal jurisdiction. See, e.g., uBID, Inc. v. The GoDaddy Group, Inc., No. 09-3927 (7th Cir. Sept. 29, 2010). Mobile/Houston's relationship with Illinois stands in stark contrast to such cases. Dr. Chan is not licensed to practice medicine outside of Texas. His website does not contain much, but it does contain a Houston-area phone number, an e-mail address, and an invitation to doctors in the “greater Houston area” to contract for his services. If a doctor in Chicago stumbled upon Dr. Chan's website and called for an appointment, their conversation would be very short.

Trying a second path to show “express aiming,” Mobile/Chicago argues that its federal trademark registration gave Mobile/Houston “constructive notice” that it was infringing Mobile/Chicago's trademark and could be called to court in Illinois. This argument misunderstands the purpose of federal registration. The federal trademark statute on which Mobile/Chicago sued does not authorize nationwide service of process. See, e.g., Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir.2004). The statute provides that registration serves as “constructive notice of the registrant's claim of ownership,” 15 U.S.C. § 1072, but that provision is intended to protect against users of the registrant's trademark who might otherwise raise a defense of innocent misappropriation. See In re International Flavors & Fragrances, Inc., 183 F.3d 1361, 1367 (Fed.Cir.1999). It does not follow from the constructive notice statute that any alleged infringer, despite its lack of any other contacts with the forum state, may henceforth be sued in that state. In other words, trademark owners cannot create nationwide service of process by this theory of constructive notice.

Finally, Mobile/Chicago points out that Mobile/Houston also had actual notice of Mobile/Chicago's trademark from the moment it received Mobile/Chicago's cease-and-desist letter. From that time forward, Mobile/Chicago argues, Mobile/Houston was intentionally directing its tortious activities at Illinois in the same way that the defendants in Calder intentionally directed their tortious activities at California. This argument finds no support in the case law. The cases that have found express aiming have all relied on evidence beyond the plaintiff's mere residence in the forum state. See, e.g., Calder, 465 U.S. at 789-90 (defendants drew allegedly libelous story from forum state sources and newspaper had its largest circulation in the forum state); Tamburo, 601 F.3d at 697 (defendants listed plaintiff's forum state address online and encouraged readers to harass him); Panavision, 141 F.3d at 1319, 1322 (defendant's intent to harm plaintiff in forum state could be inferred from his broader scheme of registering prominent trademarks as domain names for the purpose of extorting money from the marks' owners).

Here, by contrast, there is only the cease-and-desist letter. To find express aiming based solely on the defendant's receipt of that letter would make any defendant accused of an intentional tort subject to personal jurisdiction in the plaintiff's home state as soon as the defendant learns what that state is.

Affirmed.

United States Federal Circuit

IN RE: Chippendales USA, Inc.( Decided on 01.10.2010)

Appellant Chippendales USA, Inc. (“Chippendales”), appeals a decision of the Trademark Trial and Appeal Board (“the Board”). The Board affirmed the examining attorney’s refusal to register the “Cuffs & Collar Mark” as inherently distinctive- Contention arose -what is the appropriate time for measuring the inherent distinctiveness- Held, the proper time for measuring inherent distinctiveness is at the time of registration- affirmed

Applicant, Chippendales, is in the business of providing adult entertainment services for women. Chippendales performers began wearing an abbreviated tuxedo—wrist cuffs and a bowtie collar without a shirt—as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippen-dales’ advertising and performances over the past several decades In November 2000, Chippendales filed an application to register the Cuffs & Collar trade dress. In 2003, the

United States Patent and Trademark office (“PTO”) issued Registration for the Cuffs & Collar for “adult entertainment services, namely exotic dancing for women.” A mark that is inherently distinctive qualifies for registration under the Lanham Trademark Act (“Lanham Act”). A mark can also qualify for trademark protection under Section 2(f) of the Lanham Act if the mark has become distinctive through use in connection with the applicant’s goods in commerce, known as acquired distinctiveness.

Although Chippendales submitted evidence both of “inherent” distinctiveness and, alternatively, “acquired” distinctiveness under Section 2(f) of the Lanham Act, the examining attorney in 2003 concluded that the applicant was only entitled to a registration based on acquired distinctiveness. Because of the existing procedure at the PTO at the time of the decision, Chippendales could not contest the basis of the examining attorney’s decision. In 2005, Chippendales filed a second application, seeking again to register the Cuffs & Collar mark as inherently distinctive for “adult entertainment services, namely exotic dancing for women,” in the nature of live performances. Chippendales claimed that it was entitled to a registration on the ground that the mark was inherently distinctive, even though it had secured a registration under Section 2(f). whether the underlying substantive issue as to whether the proposed mark is inherently distinctive. On September 5, 2007, the examining attorney issued her final Office Action refusing to register the Cuffs & Collar because the mark was not inherently distinctive. The Board affirmed. The Board held that it was bound to apply our predecessor court’s decision in Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342 (C.C.P.A. 1977), to determine inherent distinctiveness.

On the merits, the Board concluded that the mark was not inherently distinctive under Seabrook. The Board concluded that the Cuffs & Collar was a common basic shape design, because it is not unusual for exotic dancers to “wear costumes or uniforms which are . . . revealing and pro-vocative.” Id. at 1541. The Board also concluded that the Cuffs & Collar was not unique or unusual in the particular field of use, because costumes generally are common to the field of exotic dancing

This court reviews the Board’s legal conclusions de novo, and the Board’s factual findings for substantial evidence.

Whether an asserted mark is inherently distinctive involves both a legal question as to the correct standard to apply and a factual determination. “The issue of inherent distinctive-ness is a factual determination made by the board.” The PTO has the burden to establish a prima facie case of no inherent distinctiveness. See Pacer Tech., 338 F.3d at 1350. Once the PTO sets forth a sufficient prima facie case, the burden shifts to the applicant to come forward with evidence to rebut the prima facie case.

This court applies a four-part test for determining the inherent distinctiveness of trade dress. This four-part test is set forth in our decision in Seabrook as follows:

[1] whether it was a “common” basic shape or de-sign, [2] whether it was [not] unique or unusual in the particular field, [3] whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or [4] whether it was capable of creating a commercial impression distinct from the accompanying words.

Seabrook, 568 F.2d at 1344. If a mark satisfies any of the first three tests, it is not inherently distinctive. See id.; 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 8:13 (4th ed. 2008). The fourth factor, whether the trade dress was capable of creating a commercial impression distinct from the accompanying words, is not applicable here.

Inherent distinctiveness does not depend on a showing that consumers actually identify the particular mark with the particular business; this is a question of acquired distinctiveness, or secondary meaning. Thus, if the mark is inherently distinctive, it is presumed that consumers will view it as a source identifier. If the mark is not inherently distinctive, it is unfair to others in the industry to allow what is in essence in the public domain to be registered and appropriated, absent a showing of secondary meaning. The policy here is basically the same as the prohibition against registering generic word marks, or descriptive marks that have not acquired secondary meaning.

The first issue it was considered on appeal Was whether the granting of a Section 2(f) registration for a mark of acquired distinctiveness moots the request for an inherent distinctiveness registration. Court nonetheless agreed that there are potential collateral consequences resulting from the form of registration under the Lanham Act and that this presents a viable controversy.

The second question court considered wass the appropriate time for measuring the inherent distinctiveness of a mark. Court agreed with the PTO’s argument on appeal that the proper time for measuring inherent distinctiveness is at the time of registration. This is in fact the accepted practice at the PTO.

The final question was whether the PTO erred in holding that the Cuffs & Collar mark is not inherently distinctive as of the date of the Board’s decision. In making this determination, the Board appropriately considered evidence of the current situation as well as evidence of earlier uses, since earlier uses can shed light on the current situation.

The three relevant Seabrook factors that the Board considered are: “whether the . . . [m]ark is a common basic shape or design,” “whether [it] is [not] unique or unusual in the particular field,” and “whether [it] is a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods or services.”

Chippendales argues that we should overrule Seabrook, and that the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000), is fundamentally at odds with the Seabrook test. Chippendales proposes an alternative test to “better address” the issue of inherent distinctiveness and replace the “outdated Seabrook test.” This court noted that in Wal-Mart, the Court merely held that product design trade dress can never be inherently distinctive, and can only qualify for protection through acquired distinctiveness. Wal-Mart, 529 U.S. at 214–15.17 Nothing in the Wal-Mart decision questioned or undermined the reasoning in Seabrook. Indeed, the Court cited Seabrook but did not express any disagreement with its use to determine the inherent distinctiveness of trade dress, although rejecting it as a test for inherent distinctiveness in the context of product design. Id. at 213–14. Under these circumstances, the panel is bound by Seabrook, and only the court en banc may overturn it. In any event, court fails to see how appellant’s proposed test represents an improvement over Seabrook.

This court conclude that the Board’s determination that the Cuffs & Collar mark was not inherently distinctive is supported by substantial evidence and considered Chippendales’ additional arguments for setting aside the Board’s decision, and find them to be without merit.