Mylan Inc.v.Medikit, LLC

Trademark Trial and Appeal Board

Jul 5, 2017

No. 91226398 (T.T.A.B. Jul. 5, 2017)

Baxley Mailed: July 5, 2017

Opposition No. 91226398
Mylan Inc.

v.
Medikit, LLC

Before Quinn, Shaw, and Larkin,
Administrative Trademark Judges

By the Board:

Medikit, LLC (“Applicant”) filed an intent-to-use application to register the mark
EPI-KIT in standard characters for “Injectable pharmaceuticals for treatment of
anaphylactic reactions” in International Class 5.1 Mylan Inc. (“Opposer”) filed a notice
of opposition to registration of Applicant’s mark on the grounds of (1) likelihood of
confusion with its registered and previously used mark EPIPEN and other EPI-
formative marks under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), and (2)
dilution of its EPIPEN mark under Trademark Act Section 43(c), 15 U.S.C. § 1125(c).
Applicant, in its answer, denied the salient allegations of the notice of opposition and

1 Application Serial 86710863, filed July 31, 2015.

UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
This decision is not a
precedent of the TTAB.
Opposition No. 91226398

2
asserted an affirmative defense that “Opposer’s claims are barred by contract and
assignment.”2
This case now comes up for consideration of the following motions: (1) Opposer’s
motion (filed February 10, 2017) for leave to file an amended notice of opposition to
add claims that the filing of Applicant’s involved application “is a breach of a prior
settlement agreement” and Applicant committed fraud in its involved application by
falsely asserting that it has a bona fide intent to use the involved mark (“Opposer’s
motion for leave to amend”); (2) Opposer’s motion (filed February 10, 2017) for
summary judgment on the grounds of likelihood of confusion, breach of a prior
settlement agreement and no bona fide intent to use; and (3) Applicant’s cross-motion
(filed March 13, 2017) for summary judgment on the ground “that an agreement
between the parties bars [Opposer] from bringing or maintaining this Opposition.”
The motions have been fully briefed.
The certificates of service of Opposer’s motion for leave to amend, its motion for
summary judgment, and additional filings in support thereof (12-16 TTABVUE) state
that those motions were served upon Applicant by postal mail. Under Trademark
Rule 2.119(b), as amended effective January 14, 2017,
Service of submissions filed with the Board and any other papers served
on a party not required to be filed with the Board, must be on the

2 Applicant further alleges in that defense as follows (7 TTABVUE 5):
Opposer’s and Applicant’s respective predecessors in interest entered into a
written agreement, binding upon their respective successors in interest, which
stated in part: (i) Opposer’s and Applicant’s respective marks, as used on their
respective goods, can and did coexist...; (ii) Applicant is permitted to use, apply
for and register the EPI-KIT mark; and (iii) Opposer is prohibited from, and
shall not, oppose or challenge Applicant’s use, application or registration for
the EPI-KIT mark.
Opposition No. 91226398

3
attorney or other authorized representative of the party if there be such
or on the party if there is no attorney or other authorized representative,
and must be made by email, unless otherwise stipulated, or if the
serving party can show by written explanation accompanying the
submission or paper, or in a subsequent amended certificate of service,
that service by email was attempted but could not be made due to
technical problems or extraordinary circumstances....

(emphasis added). Although Opposer improperly served the foregoing filings by postal
mail, Applicant timely responded thereto on March 13, 2017.3 Accordingly, we have
exercised our discretion to consider those filings.4 Any further filings herein must
comply with Trademark Rule 2.119.
Background
This proceeding is the third Board inter partes proceeding between the parties and
their predecessors regarding the mark EPI-KIT. On October 29, 2002, Applicant’s

3 On February 10, 2017, Opposer filed a combined motion for leave to file an amended notice
of opposition and for summary judgment (12 TTABVUE) with an accompanying
memorandum in support of the motion for summary judgment (16 TTABVUE). Although
Applicant contends that the motions should have been filed separately, movants routinely
file combined motions in Board proceedings. See, e.g., Chutter, Inc. v. Great Concepts, LLC,
119 USPQ2d 1865 (TTAB 2016); Hollywood Casino LLC v. Chateau Celeste, Inc., 116
USPQ2d 1988 (TTAB 2015).
The individual motions in the combined motion were on different briefing schedules to the
extent that a brief in response to the motion for leave to amend was due by Thursday, March
2, 2017 (see Trademark Rule 2.127(a)), and a brief in response to the motion for summary
judgment was due by Monday, March 13, 2017. See Trademark Rules 2.127(e)(1) and 2.196.
However, when a party files a combined motion that includes a motion with a Rule 2.127(a)
briefing schedule and a motion for summary judgment with a Rule 2.127(e)(1) briefing
schedule, further briefing of that motion generally follows a Rule 2.127(e)(1) briefing
schedule.

4 The filing of the motion for summary judgment suspended proceedings herein prior to the
deadline for Opposer’s pretrial disclosures. See Trademark Rule 2.127(d). The parties do not
dispute that Applicant received the February 10, 2017 filings, and the motions set forth
therein have been briefed on the merits. Accordingly, the Board finds that requiring Opposer
to re-serve those filings is unnecessary.

Opposition No. 91226398

4
predecessor, Derm/Buro, Inc. (“Derm/Buro”), filed an application to register the mark
EPI-KIT in standard characters for a “[m]edical kit for the treatment of anaphalactic
[sic] shock primarily consisting of a pre-filled, dual-dose syringe containing
epinephrine USP, four chewable chlorphenimine maleate tablets, two sterile
isopropyl alcohol pads, one tourniquet, and instructions for use” in International
Class 5.5 14 TTABVUE 98-102; 23 TTABVUE 31-36. In Opposition No. 91156649,
styled EMD Chemicals, Inc. v. Derm/Buro, Inc., Opposer’s predecessor, EMD, filed a
notice of opposition to registration of Derm/Buro’s mark.6 23 TTABVUE 38-39.
After the parties reached a settlement agreement (15 TTABVUE 3-9; 20
TTABVUE 121-27, both filed under seal), EMD, on February 20, 2004, withdrew the
opposition “with prejudice.” 15 TTABVUE 10 (filed under seal); 23 TTABVUE 41. On
March 19, 2004, Opposition No. 91156649 was dismissed with prejudice. 23
TTABVUE 38.
Derm/Buro’s application then matured into Registration No. 2859464 on July 6,
2004. 15 TTABVUE 10; 23 TTABVUE 43. A document reflecting the assignment of
that registration to Applicant was executed on January 5, 2009 and recorded on
January 25, 2009 with the USPTO’s Assignment Division at Reel 3924/Frame 0445.
21 TTABVUE 15-17.

5 Application Serial No. 76462266, filed based on an assertion of use in commerce under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and alleging August 2002 as the date of first
use anywhere and October 15, 2002 as the date of first use in commerce.

6 Neither party filed a copy of the pleadings in Opposition No. 91156649.
Opposition No. 91226398

5
On August 11, 2013, Applicant, as the owner of Registration No. 2859464, filed a
document under Trademark Act Sections 8 and 9, 15 U.S.C. §§ 1059 and 1059, to
renew that registration. 14 TTABVUE 103-109. On June 23, 2015, Opposer petitioned
to cancel Registration No. 2859464 on the ground of fraud based on an allegedly false
statement in the renewal document that the mark EPI-KIT was in use in commerce
on the identified goods. 14 TTABVUE 110-81. That petition to cancel resulted in the
institution of Cancellation No. 92061710, styled Mylan Inc. v. Medikit, LLC.
Applicant (as Respondent in the cancellation proceeding) failed to respond to an
August 14, 2015 notice of default therein (14 TTABVUE 182), which resulted in the
Board’s September 26, 2015 entry of a default judgment. 14 TTABVUE 183. On
October 2, 2015, Registration No. 2859464 was cancelled under Trademark Act
Section 18, 15 U.S.C. § 1068. 14 TTABVUE 184. After Applicant filed a new
application on July 31, 2015 to register EPI-KIT for goods other than those in its prior
registration, Opposer commenced this opposition on February 18, 2016.
Motion for leave to amend granted in part
We turn first to Opposer’s motion for leave to amend. Under the circumstances
herein, Opposer may amend its pleadings only by written consent of every adverse
party or by leave of the Board; leave must be freely given when justice so requires.
See Fed. R. Civ. P. 15(a); TBMP § 507.02 (June 2017). As a general policy, the Board
liberally grants leave to amend pleadings at any stage of a proceeding when justice
so requires, unless entry of the proposed amendment would violate settled law or be
prejudicial to the rights of the adverse party. See TBMP § 507.02. However, where a
Opposition No. 91226398

6
movant seeks to add a new claim or defense, and the proposed pleading thereof is
legally insufficient, or would serve no useful purpose, the Board normally will deny
the motion for leave to amend. See id.
By its motion for leave to amend, Opposer states that it seeks to add claims that
the filing of Applicant’s involved application is a breach of the prior settlement
agreement between the parties’ predecessors and that the involved application “was
fraudulently filed as Applicant had no bona fide intent to use the mark.” 12
TTABVUE 13 and 21, paragraph 26. Although a court might be a more appropriate
forum for litigating a cause of action for breach of the settlement agreement at issue,
the Board may consider that agreement in deciding issues of trademark
registrability, including whether the agreement created an estoppel precluding
Applicant from filing the instant application. See Selva & Sons, Inc. v. Nina Footwear,
Inc., 705 F.2d 1316, 217 USPQ 641, 647 (Fed. Cir. 1983); M-5 Steel Mfg. Inc. v.
O'Hagin's Inc., 61 USPQ2d 1086, 1095 (TTAB 2001); Danskin, Inc. v. Dan River, Inc.,
498 F.2d 1386, 182 USPQ 370, 372 (CCPA 1974) (“Since DANSHEER is not one of
the marks appellee agreed not to use (paragraph 11 of the agreement) and appellee
is not precluded from enforcing the settlement agreement, appellee is entitled to a
judgment as a matter of law’’); Vaughn Russell Candy Co. v. Cookies in Bloom, Inc.,
47 USPQ2d 1635, 1638 n. 6 (TTAB 1998) (“While it does not lie within the jurisdiction
of the Board to enforce the contract between the parties, agreements to cease use of
a mark or to not use a mark in a certain format are routinely upheld and enforced.”).
Opposition No. 91226398

7
The breach of the settlement agreement claim essentially mirrors Applicant’s
aforementioned affirmative defense. Although the claim could have been raised
earlier, Applicant will not be prejudiced by allowing Opposer to pursue it now. Indeed,
the claim is based on the same agreement upon which Applicant relies in its
affirmative defense. Accordingly, we will allow that claim to go forward to the extent
that Opposer alleges that, pursuant to that agreement, Applicant may not apply to
register the mark EPI-KIT for the goods identified in the involved application.
Opposer also alleges that because, “[u]pon information and belief, Applicant does
not have a bona fide intention to use the EPI-KIT mark on the goods applied for,” the
application was “fraudulently filed.” 12 TTABVUE 13 and 21, paragraphs 24 and 26.
We treat this allegation as a claim of fraud based on a false assertion of a bona fide
intent to use the mark in commerce; we will not parse the allegation to see if any of
the elements set forth a claim of no bona fide intent to use as of the filing date of the
involved intent-to-use application. See O.C. Seacrets Inc. v. Hotelplan Italia S.p.A.,
95 USPQ2d 1327, 1329 (TTAB 2010).
Fraud in procuring or maintaining a trademark registration occurs when an
applicant for registration or a registrant in a declaration of use or a renewal
application knowingly makes specific false, material representations of fact in
connection with an application to register or in a post-registration filing with the
intent of obtaining or maintaining a registration to which it is otherwise not entitled.7

7 “Materiality” of any false application statement is determined in the context of whether the
false statement is critical to the Trademark Examining Attorney's decision to approve a mark
for publication. See Standard Knitting, Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 USPQ2d
1917, 1926 (TTAB 2006).
Opposition No. 91226398

8
See In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009). Under Federal
Rule of Civil Procedure 9(b), fraud claims must be pleaded “with particularity.”
Allegations made upon information and belief require a pleading of specific facts upon
which the belief is based. See Asian and Western Classics B.V. v. Selkow, 92 USPQ2d
1478, 1479 (TTAB 2009). Cf. Exergen Corp. v. Wal-Mart Stores Inc., 575 F.3d 1312,
91 USPQ2d 1656, 1667 (Fed. Cir. 2009) (allegations of inequitable conduct in patent
cases require pleadings of specific conduct upon which allegation is based).
Knowledge and intent, as conditions of mind of a person, may be averred generally in
support of an allegation of fraud. See Fed. R. Civ. P. 9(b); DaimlerChrysler Corp. v.
American Motors Corp., 94 USPQ2d 1086, 1088 (TTAB 2010). However, pleadings
must allege sufficient underlying facts from which the Board may reasonably infer
that a party acted with the requisite state of mind. Asian and Western Classics B.V.
v. Selkow, 92 USPQ2d 1478, 1479 (TTAB 2009).
After reviewing the proposed fraud claim, we find that it is insufficiently pleaded.
In particular, the proposed fraud claim is based on information and belief with no
recitation of the specific facts upon which the belief is based. In addition, that claim
includes no allegation of underlying facts from which the Board may infer that
Applicant acted with intent to deceive. We thus deny this portion of Opposer’s motion
to amend.
Based on the foregoing, the motion for leave to file an amended notice of opposition
is granted to the extent that we will allow Opposer to add its claim that the filing of
Opposition No. 91226398

9
the involved application is a breach of the prior settlement agreement. The amended
notice of opposition is accepted as the operative complaint herein.8
Opposer’s motion for summary judgment granted in part; Applicant’s motion
for summary judgment denied

We turn now to the parties’ cross-motions for summary judgment. Summary
judgment is an appropriate method of disposing of cases in which there are no
genuine disputes as to material facts, thus leaving the case to be resolved as a matter
of law. See Fed. R. Civ. P. 56(c). In deciding motions for summary judgment, the Board
must follow the well-established principles that all evidence must be viewed in a light
favorable to the non-movant, and all justifiable inferences must be drawn in the
nonmovant's favor. The Board may not resolve disputes of material fact; it may only
ascertain whether such disputes are present. See Lloyd's Food Products Inc. v. Eli's
Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993); Opryland USA Inc. v. Great
American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992); Olde
Tyme Foods Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir. 1992).
The fact that both parties have moved for summary judgment does not necessarily
mean that no genuine disputes of material fact remain. See Leatherwood Scopes Int’l
Inc. v. Leatherwood, 63 USPQ2d 1699, 1703 (TTAB 2002).
As noted supra, Opposer did not adequately plead a claim of no bona fide intent
to use the mark in commerce in the amended notice of opposition. Accordingly,

8 In view of our ruling regarding Opposer’s proposed fraud claim, we sua sponte strike all of
paragraph 24 and the wording “and/or (4) was fraudulently filed as Applicant had not bona
fide intent to use the mark” from paragraph 26 of the amended notice of opposition. See
Fed. R. Civ. P. 12(f); TBMP § 506.01.
Opposition No. 91226398

10
Opposer’s motion for summary judgment on that claim is moot. See Asian and
Western Classics B.V., 92 USPQ2d at 1480; TBMP §§ 314 and 528.08(a).
Regarding the parties’ cross-motions for summary judgment based on the prior
settlement agreement,9 Opposer seeks entry of summary judgment on the ground
that the settlement agreement in Opposition No. 91156649 bars Applicant from filing
its involved application, while Applicant seeks entry of summary judgment on the
ground that the settlement agreement bars Opposer from opposing registration of
Applicant’s mark. In view of USPTO Assignment Division records submitted herein,
there is no dispute that the parties are successors-in-interest to the parties to the
marks at issue in the agreement. Because there is no dispute as to the content of the

9 Opposer has submitted: (1) a copy of the settlement agreement at issue, which refers to
EMD’s use and registrations and applications for the marks EPIPEN, EPIPEN 2-PAK, and
EPIPEN JR. 2-PAK (15 TTABVUE 3-9); (2) copies, accessed on June 23, 2015 from USPTO’s
Trademark Status and Document Retrieval (TSDR) database, showing current status and
title of its pleaded Registration No. 1479294 for the mark EPIPEN in standard characters,
Registration No. 2576013 for the mark EPIPEN JR. 2-PAK in standard characters, and
Registration No. 2576014 for the mark EPIPEN 2-PAK, all for goods which include for
“injectable pharmaceuticals for treatment of anaphylactic reactions to insect stings” in
International Class 5 (14 TTABVUE 12-13, 17-18, and 20-21); (3) a trademark assignment
cover sheet which indicates that a document reflecting the assignment of those registrations
from EMD to Opposer was recorded on May 6, 2008 with the USPTO’s Assignment Division
at Reel 3772/Frame 0028 (14 TTABVUE 230-31); and (4) a copy, accessed on February 10,
2017 from the USPTO’s TSDR database, showing current status and title of Applicant’s
cancelled Registration No. 2859464 (14 TTABVUE 98-102). The copy of Applicant’s cancelled
registration includes additional information concerning Cancellation No. 92061710, wherein
Opposer pleaded Registration Nos. 1479294, 2576013, and 2576014. That information
indicates that the current status of those registrations is “[r]enewed.” 14 TTABVUE 101.
Based on the foregoing, we find that there is no genuine dispute that Opposer has a
reasonable belief of damage and therefore has standing to maintain this proceeding. See
Vaughn Russell Candy Co., 47 USPQ2d at 1638 n.7.
The additional information concerning cancelled Registration No. 2859464 also includes an
“Assignment Abstract of Title Information,” indicates that a document reflecting the
assignment of that registration from Derm/Buro to Applicant was recorded with the USPTO’s
Assignment Division on January 25, 2009 at Reel 3924/Frame 0445. 14 TTABVUE 100.
Opposition No. 91226398

11
settlement agreement, the resolution of the cross-motions depends solely upon the
interpretation of that agreement, which is an issue of law. See Sanofi-Aventis v.
Apotex Inc., 659 F.3d 1171, 100 USPQ2d 1756, 1761 (Fed. Cir. 2011) (interpretation
of a contract is a matter of law which may be decided on summary judgment).
That agreement states in relevant part as follows:10
WHEREAS, DERM/BURO has applied to register the mark[] EPI-KIT11
... for ‘medical kit for the treatment of anaphalactic (sic) shock primarily
consisting of a pre-filled, dual-dose syringe containing epinephrine USP,
four chewable chlorphenimine maleate tablets, two sterile isopropyl
alcohol pads, one tourniquet, and instructions for use’ in International
Class 5 in the United States (Application Serial No[]. 76/462,266 [(‘the
mark EPI-KIT’)]....
...
3. DERM/BURO agrees to use [the mark EPI-KIT] only in connection
with a ‘medical kit for the treatment of anaphylactic shock primarily
consisting of a pre-filled, dual-dose syringe containing epinephrine USP,
four chewable chlorphenimine maleate tablets, two sterile isopropyl
alcohol pads, one tourniquet, and instructions for use’ anywhere in the
world. DERM/BURO further agrees not to use ... any marks containing
the terms ‘EPI,’ ‘PEN’ or any variations thereof or any terms confusingly
similar thereto in connection with any auto-injector products or goods.
...
7. EMD agrees not to use or seek to register or challenge any use or
registration by DERM/BURO of the [mark EPI-KIT] in the United
States. EMD agrees that it will not attack or challenge (a)
DERM/BURO’s ownership of the [mark EPI-KIT], (b) any U.S.
applications for registration thereof, (c) any U.S. trademark
registrations thereof, (d) or any rights of DERM/BURO therein.

10 Applicant filed the agreement under seal. We have limited our discussion of the agreement
to the portions which we must interpret to reach our decision. See Noble House Home
Furnishings, LLC v. Floorco Enters., LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016) (“The
Board needs to be able to discuss the evidence of record, unless there is an overriding need
for confidentiality, so that the parties and a reviewing court will know the basis of the Board's
decisions.”).

11 The agreement also refers to the marks “EPIMED and EPICARE TREATMENT KIT” for
the same goods. 15 TTABVUE 3. However, those marks are not at issue in this case.
Opposition No. 91226398

12
“[T]he question of registrability of an applicant's mark must be decided on the
basis of the identification of goods set forth in the application.” Octocom Sys. Inc. v.
Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The Board must presume that Applicant's goods encompass all goods of the type
identified. See id.; In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
The identification of goods set forth in Applicant’s involved application is
“Injectable pharmaceuticals for treatment of anaphylactic reactions.” In the
settlement agreement, Applicant agreed to use the mark EPI-KIT “only in connection
with a ‘medical kit for the treatment of anaphylactic shock primarily consisting of a
pre-filled, dual-dose syringe containing epinephrine USP, four chewable
chlorphenimine maleate tablets, two sterile isopropyl alcohol pads, one tourniquet,
and instructions for use.’”
Applicant argues that its identified goods are “a subset” of the goods identified in
the now-cancelled registration and are therefore permissible under the settlement
agreement. 18 TTABVUE 16. We disagree. Even if the goods identified in Applicant’s
application, “[i]njectable pharmaceuticals for treatment of anaphylactic reactions,”
encompass a “pre-filled, dual-dose syringe containing epinephrine USP” for “the
treatment of anaphylactic shock,” we must presume that they also encompass any
“[i]njectable pharmaceuticals for treatment of anaphylactic reactions.” That is, we
must presume that the goods in the involved application encompass any injectable
pharmaceuticals, not merely injectable epinephrine USP, and that those
pharmaceuticals are injectable by means other than pre-filled, dual-dose syringes.
Opposition No. 91226398

13
Applicant’s identified goods thus exceed the scope of the particular portion of the
components of the medical kit upon which it relies. Cf. General Electric Co. v.
Raychem Corp., 204 USPQ 148, 150 (TTAB 1979) (claim preclusion applies, “not only
with respect to the identical description of goods as had been previously litigated, but
with respect to all goods that could be said to be encompassed by that description of
goods....”); J. I. Case Co. v. F.L. Indus., Inc. 229 USPQ 697, 700 (TTAB 1986) (finding
that the doctrine of claim preclusion barred a second application for the same mark
where the goods in the second application were “fully encompassed by those claimed
in the prior proceeding.”).
More fundamentally, Applicant promised in the agreement to use its EPI-KIT
mark “only in connection with a medical kit for the treatment of anaphylactic shock”
containing specific items. Applicant’s “injectable pharmaceuticals” do not comprise a
“medical kit.” In view of the prior settlement agreement, it was incumbent upon
Applicant to use its mark only in connection with the goods permitted under the
agreement and to conform the identification of goods in the involved application to
the permitted scope of use under the agreement, in the manner of the identification
of goods in its now-cancelled registration, which issued after the execution of the
settlement agreement.
The agreement also states that EMD will not challenge any applications for the
mark EPI-KIT. However, the preamble of that agreement defines that mark as EPI-
KIT for a “medical kit for the treatment of anaphylactic shock primarily consisting of
a pre-filled, dual-dose syringe containing epinephrine USP, four chewable
Opposition No. 91226398

14
chlorphenimine maleate tablets, two sterile isopropyl alcohol pads, one tourniquet,
and instructions for use.” Accordingly, we conclude that the agreement precludes
challenges only with regard to registration of that mark on those specific goods and
does not preclude challenges to applications to register that mark for other goods.
Based on the foregoing, we find that there is no genuine dispute that Applicant’s
involved application is a breach of the parties’ predecessors’ prior settlement
agreement. We further find that there is no genuine dispute that Opposer’s opposition
is not barred by that agreement.
In view thereof, Opposer’s motion for summary judgment on the ground that
Applicant’s involved application is a breach of the prior settlement agreement is
granted, and Applicant’s cross-motion that Opposer’s opposition is barred by the prior
settlement agreement is denied.12 Judgment is hereby entered, and registration to
Applicant is refused.

12 Because we have granted summary judgment on this claim, we decline to reach Opposer’s
motion for summary judgment on its Section 2(d) claim. See TBMP § 102.01.