The Saul Zaentz Company dba Tolkien Enterprisesv.Joseph M. BumbDownload PDFTrademark Trial and Appeal BoardJun 28, 2010No. 91156518 (T.T.A.B. Jun. 28, 2010) Copy Citation Mailed: 6/28/10 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ The Saul Zaentz Company dba Tolkien Enterprises v. Joseph M. Bumb _____ Opposition No. 91156518 to application Serial No. 780836851 1 In addition to the present opposition proceeding involving applicant’s application to register the LOTR mark for jewelry, the parties are involved in two other opposition proceedings. Opposition No. 91156452 involves applicant’s application Serial No. 78083686 for registration of the mark MITHRIL. Combined Opposition No. 91170589 involves applicant’s application Serial No. 78085108 for registration of the mark MIDDLE EARTH JEWELRY and his application Serial No. 78085111 for registration of the mark ARAGORN. Finding there to be common issues of law and fact in the three oppositions involving the four applications, the Board consolidated the three proceedings in orders dated July 23, 2004, January 24, 2007 and February 9, 2007, with the MITHRIL opposition serving as the parent case. The cases have proceeded as consolidated cases for purposes of discovery, trial and briefing. However, we deem it appropriate for purposes of final decision to decide the three cases separately, in separate opinions. Although the three cases share common legal and factual issues which warranted consolidation for purposes of discovery, trial and briefing, the issues and evidence are not identical in the three cases. In the interest of clarity, each of the three cases warrants its own opinion at final decision. We have considered the evidence in each case independently and we are deciding each of the cases based on the evidence pertinent to each case. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91156518 2 _____ Carole F. Barrett, Blake J. Lawit and Sarah J. Givan of Howard Rice et al. for The Saul Zaentz Company dba Tolkien Enterprises. Joseph M. Bumb, pro se. ______ Before Grendel, Walsh and Cataldo, Administrative Trademark Judges. Opinion by Grendel, Administrative Trademark Judge: Introduction. This opposition proceeding involves the famous series of fantasy literary works by J.R.R. Tolkien set in his imaginary world of Middle Earth (“the Tolkien works”). The books include The Fellowship of the Ring, The Two Towers, and The Return of the King (the “Lord of the Rings” trilogy), and its prequel, The Hobbit. In The Hobbit, the hero Bilbo Baggins, a hobbit (a smaller relative of humans), goes on a journey across Middle Earth during which he discovers the dangerous Ring of Power. The sequel “Lord of the Rings” trilogy is the story of the perilous journey across Middle Earth of the hobbit hero Frodo Baggins and Opposition No. 91156518 3 his companions to destroy the Ring of Power and defeat the armies of the evil wizard Saruman and the dark lord Sauron.2 Millions of copies of the Tolkien works have been sold in the United States since their first publication in the 1950’s. In a 2008 Harris poll, the Tolkien works together ranked as the third most popular book of all time among American readers, trailing only The Bible and Gone With the Wind.3 On September 12, 2001, Joseph M. Bumb (“applicant”) filed an application (Serial No. 78083685) seeking registration on the Principal Register of the mark LOTR for goods identified in the application as “jewelry, namely, rings, bracelets, pendants, charms, necklaces, earrings, pins, tie pins and tie clasps, brooches, cufflinks, money clips, all made of precious metal and alloyed precious metal.” The application is based on applicant’s allegation of a bona fide intention to use the mark in commerce, under Trademark Act Section 1(b), 15 U.S.C. §1051(b). The Saul Zaentz Company dba Tolkien Enterprises (“opposer”) filed a notice of opposition to registration of 2 Undisputed evidence establishing these and other facts relating to the plot and characters in the Tolkien works appears throughout the record. 3 Drotos depo. (see below) at 46-48, 207-208; Imhoff depo. (see below) at 39-40. Opposition No. 91156518 4 the mark. In its amended notice of opposition, opposer alleged, in pertinent part, (a) that it owns various trademarks based on characters, places, things and events described in the Tolkien works, and that these marks include the marks LORD OF THE RINGS and (by extension) the acronym LOTR; (b) that applicant lacked the requisite bona fide intent to use the LOTR mark at the time he filed the application to register that mark, rendering the application void ab initio under Trademark Act Section 1(b), 15 U.S.C. §1051(b); and (c) that opposer is the prior user of the marks LORD OF THE RINGS and (by extension) the acronym LOTR, that applicant’s use of the LOTR mark he seeks to register is likely to cause confusion with opposer’s previously-used LORD OF THE RINGS and LOTR marks, and that registration of applicant’s mark therefore is barred under Trademark Act Section 2(d), 15 U.S.C. §1052(d).4 Applicant answered the amended notice of opposition by denying the salient allegations thereof. Opposer submitted evidence at trial; applicant did not. The case is fully briefed. 4 Opposer also alleged a dilution claim, but has specifically withdrawn that claim in its brief. (Opposer’s brief at 23, n.4.) We shall give it no further consideration. Opposition No. 91156518 5 After careful consideration of all of the evidence of record and all of the arguments of the parties (including evidence and arguments not specifically discussed in this opinion), we sustain the opposition on the ground that applicant lacked the requisite bona fide intent to use the LOTR mark in commerce when he filed his intent-to-use application to register the mark, rendering the application void ab initio under Trademark Act Section 1(b), 15 U.S.C. §1051(b).5 The Evidence of Record. By rule, the evidence of record includes the file of applicant’s opposed LOTR application. Trademark Rule 2.122(b)(1), 37 C.F.R. §2.122(b)(1). In addition, opposer submitted the following evidence at trial: 1. Opposer’s Notice of Reliance (“NOR”) on: 5 Because we find that opposer has established its standing and its Section 1(b) ground of opposition to registration of applicant’s mark, we need not and do not reach opposer’s Section 2(d) ground of opposition. See Research In Motion Ltd. v. NBOR Corp., 92 USPQ2d 1926 (TTAB 2009). We note that opposer states in its brief: “This issue of Applicant’s bona fide intent to use is dispositive – if Applicant lacks a bona fide intent to use the mark[] at issue, the Board need not expend resources and effort on SZC’s likelihood of confusion ground for opposition.” (Opposer’s brief at 28, n.7.) Opposition No. 91156518 6 (a) status and title copies of its numerous registrations of Tolkien-related marks (NOR Exh. 1-38); (b) applicant’s discovery responses (NOR Exh. 40, 42 and 44), including his responses to opposer’s interrogatories (“Int. No. __”), requests for admissions (“RFA No. __”) and requests for production of documents (“RFP No. __”); (c) numerous printed publications referring to the Tolkien works and to opposer’s movies based thereon (see below) (NOR Exh. 50- 112); and (d) official USPTO records concerning other intent-to-use applications filed by applicant to register other Tolkien-related marks (NOR Exh. 113-121); 2. the testimony deposition of applicant Joseph Bumb (taken by opposer) and exhibits thereto (“Bumb depo.”); 3. the testimony deposition of opposer’s employee Frederica Drotos and exhibits thereto (“Drotos depo.”); 4. the testimony deposition of opposer’s vice-president Albert Bendich and exhibits thereto (“Bendich depo.”); 5. the testimony deposition of David Imhoff (senior vice-president of licensing and merchandising for opposer’s licensee New Line Cinema) and exhibits thereto (“Imhoff depo.”); 6. the testimony deposition of opposer’s employee Juliet Mason and exhibits thereto (“Mason depo.”) and 7. the testimony deposition of opposer’s employee Laurie Battle (“Battle depo.”). Opposition No. 91156518 7 Applicant submitted no evidence at trial.6 Opposer. Opposer, The Saul Zaentz Company, d.b.a. Tolkien Enterprises, is a film production company. (Bendich depo. at 7.) In 1976, opposer, by mesne assignments, acquired from the J.R.R. Tolkien estate the exclusive world-wide performance, motion picture and ancillary rights in and to the Tolkien works. (Bendich depo. at 7-17, exh. 270-274; Drotos depo. at 21-22, 32-33.) Since acquiring the rights, opposer has used and licensed the use of various trademarks based on names, objects, places and events depicted in and 6 At page 2 of his brief, in his “Description of the Record,” applicant asserts that “Applicant’s record in this case” includes “The Pleadings, including any and all of Applicant’s declarations.” To the extent that applicant by this reference to “declarations” might be referring to his June 28, 2007 declaration in opposition to opposer’s summary judgment motion, we have given that declaration no consideration because it was not made of record at trial. See, e.g., Levi Strauss & Co. v. R. Joseph Sportswear Inc., 28 USPQ2d 1464 (TTAB 1993); see generally Trademark Board Manual of Procedure (TBMP) (2d Ed., Rev. 2004) at §528.05(a) and cases cited therein. We note that the Board, in its July 29, 2008 order denying opposer’s summary judgment motion, advised the parties (at footnote 2) that summary judgment evidence is of record only for purposes of determining the summary judgment motion. Additionally, applicant’s assertions in his answer to the notice of opposition and in his final brief on the case are not in themselves evidence of the facts asserted except to the extent that they are supported by evidence at trial, or except to the extent that they may have probative value as admissions against interest. See TBMP at §706 and cases cited therein. Finally, we add that our decision in this case would have been the same even if we had considered these materials to be evidence of record on applicant’s behalf. Opposition No. 91156518 8 derived from the Tolkien works (the “Tolkien marks”), for a wide variety of goods and services. (Drotos depo. at 50- 198, exh. 108-198.) Opposer owns numerous federal trademark registrations of many of the Tolkien marks, covering a variety of goods. (NOR Exh. 1-38.)7 In 2001-2003, opposer’s licensee, New Line Cinema, produced and distributed a series of three feature films based on the books of the Lord of the Rings trilogy, i.e., The Fellowship of the Ring, The Two Towers, and The Return of the King. (Drotos depo. at 28-29; Mason depo. at 19.) These movies are among the most successful movies in U.S. box office history, having grossed approximately one billion dollars in theaters. (Imhoff depo. at 41-42; Drotos depo. at 48-50.) Beginning in 1999, well prior to the release of the first film in December 2001, the trilogy film project was the subject of substantial media attention and great anticipation, especially among the devoted fans of the Tolkien works. (Drotos depo. at 42-44; Imhoff depo. 7 Opposer’s registrations of Tolkien-related marks include multiple registrations of the mark LORD OF THE RINGS and variants thereof (see below at footnotes 9 and 10), and registrations of the marks MIDDLE EARTH, ARAGORN, EVENSTAR, ONE RING TO RULE THEM ALL, MORDOR, ARWEN, MY PRECIOUSSS, SARUMAN, GOLLUM, ELROND, EOWYN, FRODO, GALADRIEL, RIVENDELL, THE ONE RING, and GANDALF. Opposer does not own a registration of the mark involved in this case, i.e., LOTR, but instead relies on its common-law rights in that mark. See discussion below regarding opposer’s standing. Opposition No. 91156518 9 at 32-34.)8 Tens of millions of DVD copies of the movies have been sold in the United States. (Imhoff depo. at 41- 42.) Over three hundred of opposer’s licensees and sub- licensees have marketed thousands of different products (including jewelry) under the Tolkien marks as part of opposer’s extensive and highly successful merchandising program based on the movies. (Imhoff depo. at 15-23; Drotos depo. at 37.) The dollar amounts of opposer’s sales and advertising expenditures in connection with the movies and its related merchandising program have been submitted under seal, but suffice it to say that they are very 8 Opposer’s notice of reliance includes press articles appearing prior to the first film’s release which referred to opposer’s trilogy film project, such as: - Newsweek (April 24, 2000) (NOR Exh. 76): “J.R.R. Tolkien fans downloaded the first ‘Lord of the Rings’ trailer nearly 1.7 million times in its first 24 hours on the Net. ... Says a LOTR megafan, ‘It’s so amazing to finally see this world come to life.’ If you haven’t already, the first installment premieres Christmas – 2001.” ; - Detroit Free Press (March 5, 2001) (NOR Exh. 72): “The first of the three long-awaited ‘Lord of the Rings’ films doesn’t even open until Dec. 19, but the Internet buzz has already reached heights unheard of, even in the world of Hollywood hype.”; and - Atlanta Journal and Constitution (April 30, 2001) (NOR Exh. 77): “Based on the J.R.R. Tolkien classic, the movie won’t debut until Christmas. But, realizing that there was intense interest among LOTR fans, New Line began its online promotions in May - of 1999.” Opposition No. 91156518 10 substantial. (Imhoff depo. at 24-32; Mason depo. at 12-31, exh. 103-104.) Applicant. Applicant, Joseph M. Bumb, owns a company called American Precious Metals, formed in 1980. (Bumb 2004 depo. at 17-18.) He operates a store at the San Jose Flea Market in California, where he buys and sells a range of products including jewelry, collectibles and memorabilia. (Bumb depo. at 21-22.) Applicant also engages in the custom design and manufacture of jewelry. (Bumb depo. at 24-27.) Discussion. To review, applicant seeks registration of the mark LOTR for various jewelry items. Opposer’s ground of opposition is lack of bona fide intent under Trademark Act Section 1(b). What is LOTR? As discussed below in connection with opposer’s standing, the record establishes that “LOTR” is commonly used and recognized as an acronym for the phrase “Lord of the Rings” in connection with the Tolkien works. (Drotos depo. at 38-39; Imhoff depo. at 55-56; Saigh depo. at 34.) Opposition No. 91156518 11 Applicant has admitted “that LOTR is an abbreviation for ‘The Lord of the Rings.’” (RFA No. 1 (NOR Exh. 42).) Opposer’s Burden. To prevail in this opposition proceeding, opposer must establish its standing to oppose and at least one statutory ground of opposition to registration of the mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000). Opposer’s Standing. To establish its standing to oppose registration of the LOTR mark applicant seeks to register, opposer must prove that it has a real interest in the outcome of this proceeding and thus a reasonable basis for its belief that it would be damaged by issuance of a federal registration of the mark to applicant. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982); Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650 (TTAB 2002). We find that opposer has standing in this case based on its evidence of its rights in the phrase mark LORD OF THE RINGS, and on its evidence which establishes that the Opposition No. 91156518 12 designation LOTR is commonly recognized and used by the public and press as an acronym for that phrase mark. Our primary reviewing court has stated: Moreover, even without use directly by the claimant of the rights, the courts and the Board generally have recognized that abbreviations and nicknames of trademarks or names used only by the public give rise to protectable rights in the owners of the trade name or mark which the public modified. Such public use by others inures to the claimant's benefit and, where this occurs, public use can reasonably be deemed use “by” that party in the sense of a use on its behalf. National Cable Television Association Inc. v. American Cinema Editors Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1428 (Fed. Cir. 1991) (emphasis in original; internal citations omitted). See also J.T. McCarthy, McCarthy on Trademarks and Unfair Competition, §7:18 (4th ed. 2009): “Americans are prone to abbreviate recognized trademarks and to use nicknames. Such abbreviations and nicknames are just as entitled to legal protection as the original full trademark.” Applying this principle in the present case for purposes of determining opposer’s standing, we find, first, that opposer has established its rights in the phrase mark LORD OF THE RINGS. Opposer has made of record status and title copies of its numerous existing registrations of the Opposition No. 91156518 13 marks LORD OF THE RINGS and THE LORD OF THE RINGS, covering a variety of goods in Classes 6, 8, 14, 16, 20, 21, 25 and 28. (NOR Exh. 11-24.)9 Four of these registrations include Class 14 jewelry in their identifications of goods. (NOR Exh. 19-22.)10 The record also establishes that opposer has common law rights in the phrase mark LORD OF THE RINGS derived from its use and its licensing of others to use the mark LORD OF THE RINGS essentially as a house mark on a wide variety of licensed products to indicate that the products are authentic merchandise. (Imhoff depo. at 11, 65.) Second, the evidence of record clearly establishes that the public and the press commonly use the acronym LOTR interchangeably with the phrase mark “Lord of the Rings” in referring to the Tolkien works and to opposer’s “Lord of the Rings” movies. (Imhoff depo. at 24, 120; Drotos depo. at 204, Exh. 201.) Opposer’s notice of reliance includes the following excerpts from articles in the press: - Chicago Sun-Times, May 20, 2001 (NOR Exh. 69): “On a simple democratic standard measured by sales figures and lists of readers’ favorite books, The Lord of the Rings can claim a 9 Reg. Nos. 1553027, 2757847, 2765513, 2897946, 2944695, 2970997, 3095936, 3375772, 3375773, 3375774, 3378135, 3408340, 3507966, and 3512255. 10 Reg. Nos. 3375773, 3375774, 3378135 and 3408340. Opposition No. 91156518 14 consistent preeminence unmatched by any other single literary work of this century. Further, LOTR established fantasy as a durable commercial genre whose growth rate increases, as will be all too apparent in the weeks leading up to Dec. 16, when a new screen version of LOTR makes its debut.” - Chicago Sun-Times, July 8, 2001 (NOR Exh. 70): “The first of three new film treatments of LOTR from New Line Cinema will debut in theaters Dec. 19 ...” - Village Voice, June 12, 2001 (NOR Exh. 73): “Peter Jackson’s movie trilogy The Lord of the Rings raises the bar on pop-cult hype’s global ubiquity and behemothic scale. ... Hype easily self-assassinates, but LOTR may be immune to excess.” - Newsweek, April 24, 2000 (NOR Exh. 76): “J.R.R. Tolkien fans downloaded the first “Lord of the Rings” trailer nearly 1.7 million times in its first 24 hours on the Net. ... Says a LOTR megafan, “It’s so amazing to finally see this world come to life.” - Atlanta Journal and Constitution, April 30, 2001 (NOR Exh. 77): “Based on the J.R.R. Tolkien classic, the movie won’t debut until Christmas. But, realizing that there was intense interest among LOTR fans, New Line began its online promotions in May - of 1999.” - E Online, May 1, 2000 (NOR Exh. 92): “It’s one of the most closely debated and frequently asked questions surrounding LOTR: How will Sauron be represented? Will he be a burning Red Eye, as Tolkien describes him, or something else? - Wired, Oct. 2001 (NOR Exh. 95): “She first read LOTR in the sixth grade, and was always fantasizing about living in Middle-earth.” ‘Everyone knows about LOTR, yet its influence is so pervasive as to be almost invisible.’” Opposition No. 91156518 15 - Orange County Register, Dec. 18, 2002 (NOR Exh. 102): “Superb special effects and a rich emotional canvas make the second ‘LOTR’ even better than the first.” In short, the record establishes that LOTR is recognized and commonly used by the public as an acronym for opposer’s phrase mark LORD OF THE RINGS in connection with the Tolkien works and with opposer’s “Lord of the Rings” movie trilogy based thereon. Based on this evidence and in accordance with the authorities discussed above, we find that opposer has a real interest in this proceeding and thus a reasonable basis for its belief that it would be damaged by issuance to applicant of a registration of the mark LOTR. Accordingly, we find that opposer has established its standing to oppose registration of applicant’s LOTR mark.11 Opposer’s Section 1(b) Ground of Opposition. Having found that opposer has standing, we turn next to opposer’s Section 1(b) ground of opposition, i.e., its claim that applicant’s LOTR application is void ab initio 11 Additionally, opposer’s standing is established by the evidence of record which shows that one of opposer’s licensees, Badali Specialty Jewelry, Inc., markets jewelry in the United States under the mark “LOTR Box Sets” pursuant to a license from opposer executed in August 2001. (Drotos depo. at 116-17, 128-29, Exh. 142, 150.) Opposition No. 91156518 16 because applicant lacked the requisite bona fide intent to use the mark in commerce when he filed his application. In pertinent part, the Trademark Act provides that “A person who has a bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce may request registration of its trademark on the principal register....” Trademark Act Section 1(b)(1), 15 U.S.C. §1051(b)(1). The Board has held that “...the determination of whether an applicant has a bona fide intention to use the mark in commerce is to be a fair, objective determination based on all the circumstances.” Lane Ltd. v. Jackson International Trading Co., 33 USPQ2d 1351, 1355 (TTAB 1994). The Board also has stated that the requirement that an applicant must have a bona fide intent to use the mark in commerce “must be read in conjunction with the revised definition of ‘use in commerce’ in Section 45 of the Trademark Act, which the Trademark Law Revision Act of 1988 amended to require that such use be ‘in the ordinary course of trade, and not made merely to reserve a right in a mark.’” Commodore Electronics Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503, 1507 (TTAB 1993). Applicant filed his intent-to-use application for LOTR on September 12, 2001. Prior to that, on August 17, 2001, Opposition No. 91156518 17 he had registered the domain name “lotrjewelry.com.” (Bumb depo. at 50.) Applicant has never taken any steps to construct or operate a website under the “lotrjewelry.com” domain name. (Bumb depo. at 69-70, Exh. 15.) Applicant has admitted that aside from documents filed with the USPTO pertaining to his intent-to-use trademark application and documents pertaining to his registration of the domain name, applicant has no documents relating to his adoption of or intent to use the LOTR mark. (Bumb depo. at 85; RFP Nos. 1, 5, 7 and 19 (NOR Exh. 44).) We find that applicant’s lack of any such documents suffices to establish, prima facie, that applicant lacked a bona fide intent to use the LOTR mark in commerce when he filed the application to register that mark. See Research In Motion Ltd. v. NBOR Corp., 92 USPQ2d 1926 (TTAB 2009); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581 (TTAB 2008); and Commodore Electronics Ltd. v. CBM Kabushiki Kaisha, 26 USPQ2d 1503 (TTAB 1993). Moreover, opposer’s prima facie case is supported by several express admissions by applicant in his testimony deposition (taken by opposer) which establish that he lacked a bona fide intent to use the mark, and that he filed the application merely to reserve a right in the mark. For example: Opposition No. 91156518 18 Q. When you applied, you didn’t necessarily want to use the term, LOTR? A. Well, it was, like I said before, an insulator. And yes, as the terms of the Trademark Commission, you have to have an intent for use. Well, I suppose I would have an intent for use provided that channel opens up to me. (Bumb depo. at 98.) Q. ... You applied for both a domain name and the trademark application for LOTR. A. Yes. Q. Because you wanted to make jewelry to associate in the minds of others Lord of the Rings, right? A. Well, going back to our previous line of questioning, I really didn’t have an intent of manufacturing an LOTR line of jewelry. Q. True. A. So it wasn’t with that in mind. It was just kind of a protective device. I needed insulation in my mind, that’s why. Q. What did you need protection from; what were you trying to protect? A. A future business and how that would come into play, could be anything. It would be, that’s where I started. (Bumb depo. at 56-57.) After having considered all of the evidence of record, we find that the preponderance of the evidence establishes that applicant lacked the requisite bona fide intention to use the LOTR mark in commerce when he filed his intent-to- use application to register that mark. Specifically, applicant has no documentary evidence to support his bona fide intent claim, a fact which suffices in itself to Opposition No. 91156518 19 establish that applicant lacked a bona fide intention to use the mark when he filed his application. See Commodore Electronics Ltd., supra, 26 USPQ2d at 1507; Research In Motion Ltd., supra, 92 USPQ2d at 1931; and Boston Red Sox Baseball Club LP, supra, 88 USPQ2d at 1587. Applicant presented no evidence at trial to support a contrary finding. See Research In Motion Ltd., supra, 92 USPQ2d at 1931 (“The absence of documentation coupled with applicant’s failure to take testimony or offer any evidence supporting its bona fide intent to use convince us that applicant did not have a bona fide intent to use the mark.”) Moreover, applicant’s testimony includes what essentially are his admissions that he lacked a bona fide intent to use the mark when he filed his application. Thus, we find that opposer has established its Section 1(b) ground of opposition to registration of applicant’s LOTR mark based on applicant’s lack of bona fide intent to use the mark when he filed his intent-to-use application to register that mark, and that the application therefore is void ab initio. Conclusion and Decision. Based on the entirety of the evidence of record, and for the reasons discussed above, we conclude that opposer has established its standing to oppose registration of Opposition No. 91156518 20 applicant’s LOTR mark, and has established its Section 1(b) ground of opposition to registration of that mark. Decision: The opposition is sustained. _______ Copy with citationCopy as parenthetical citation