UNITED STATES OF AMRICA

BEFORE TH FEDERA TRDE COMMSSION

---------------------------------------------------------------------- X

In the Matter of

CHICAGO BRIDGE & IRON COMPANN.

a foreign corporation

Docket Number 9300

CHICAGO BRIGE & IRON COMPANY

a corporation

Public

PIIT-DES MOINS, INC.

a corporation

----------------------------..------------------------------------- X

PITT -DES MOINS, INC. BRIEFING ON

COMPLAINT COUNSEL'S MOTION FOR CLARFICATION

Respondent Ironbridge Corp., formerly known as Pitt-Des Moines, Inc. ("Pitt-Des

Moines ), by and though its counsel, Brown Raysman Milstein Felder & Steiner LLP ("Brown

Raysman ), files ths brief in response to the Order of the Federal Trade Commission (the

Commission ) issued March 15, 2005 (the "Order ), requesting fuer briefing on Complaint

Counsel's Petition for Reconsideration to Clarfy Respondents' Obligations as to the Pitt- Des

Moines and Chicago Bridge & Iron Company corporate names ("Counsel's Petition to

Clarfy" ) The Order requests that Pitt-Des Moines and respondents Chicago Bridge & Iron

Company N.V. and Chicago Bridge & Iron Company (collectively "Chicago Bridge ) address

the feasibilty of granting a transitional license that would allow a purchaser of Chicago Bridge

) By way of background, Pitt-Des Moines was previously represented by Winston & Strawn, which, until recently,

also represented Chicago Bridge. Brown Raysman was retained by Pitt-Des Moines on or about March 22, 2005 to

represent it in these proceedings and fied its Notice of Appearance on March 23, 2005. We understad that

Counsel' s Petition was fied on Januar 31 , 2005. Pitt-Des Moines' former counsel may have been served with that

document, but at that time had ceased actively to represent Pitt-Des Moines. Pitt-Des Moines fied no response to

Counsel's Petition to Clarify. The Order states that "PDM remains a par to this proceeding, but it has not

objected or otherwise presented its views on the inclusion of the PDM name in assets of the divested entity.

However, because Pitt-Des Moines was not actively represented by counsel at that time and did not intend to waive

any rights to a response, Pitt-Des Moines requests that statement be stricken ITom the Order and this briefbe deemed

Pitt-Des Moines' response to both Counsel's Petition To Clarify and the Order.

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& Iron Company assets to use the Pitt-Des Moines name, and settng fort any consequences 

granting such a license.

BACKGROUND

Pitt-Des Moines, initially known as "Pittsburgh-Des Moines Company," was

formally established in Pennsylvania in or about Februar, 1916. It changed its name to

Pittsburgh-Des Moines Steel Company" in 1955, to "Pittsburgh-Des Moines Corporation" in

1980, and to "Pitt-Des Moines, Inc." in 1985. Pitt-Des Moines claimed to have begu using

PDM" as a trademark of the company in 1930. It first registered "PDM" as a trademark in the

United States Patent and Trademark Offce (the "USPTO") in or about 1987 in international

class 3 7 - constrction and repair - for both construction of sewage treatment plants for others

and construction of bridges, buildings tas and vessels for others. A trademark and trade name

search of the records of the USPTO revealed that neither "Pitt-Des Moines, Inc." nor "Pitt-Des

Moines" were ever registered (although a registered mark

, 

PDM Corporation " was obtained in

1982 and cancelled in 1989).

In or about 2000, Pitt-Des Moines commenced a plan to market for sale its several

operating divisions as separate stad-alone businesses (the "Marketing Plan ) in an effort to

maximize shareholder value. At the time, Pitt-Des Moines presumably possessed whatever

common law rights would have attched to the "Pitt-Des Moines" name and the "PDM" mark

and statutory rights in the "PDM" mark, as well as several other registered trademarks for a

varety of goods and services. There is no evidence to suggest any competing use of "Pitt-Des

Moines" or "PDM" at that time.

Though a series of asset and stock sales, Pitt-Des Moines sold off all of its

operating business unts between 2000 and 2002. Generally, and as fuer discussed below, as

par of each sale, Pitt-Des Moines conveyed rights to use either the name "Pitt-Des Moines" or

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the "PDM" mark, or both, in connection with the business that was being sold. Some

conveyances were of limited duration, while others were outright transfers. Section II below

discusses each of the sales of business operating units and the accompanying transfers of trade

names and trademark rights.

II. THE SALES OF PITT -DES MOINS' BUSINESSES

Sale ofPDM Strocal. Inc. and Candraft Detailng Inc. to David Long

Transaction

The first step in the Marketing Plan was the sale of two subsidiares comprising

the strctual steel fabrication and erection business unts of Pitt-Des Moines. Pursuant to the

terms of a Stock Purchase Agreement dated November 3, 2000, by and among David L. Long

Mr. Long ), PDM Strocal, Inc., Candraft Detailng, Inc. and Pitt-Des Moines (the

Strocal/Candraft Stock Purchase Agreement"i, Mr. Long purchased from Pitt-Des Moines all

of the issued and outstading capital stock of each of PDM Strocal, Inc. and Candraft Detailing,

Inc.

Marks Transferred and Retained

Pursuant to Section 7.2.6 of the Strocal/Candraft Stock Purchase Agreement, PittDes Moines licensed to Mr. Long and PDM Strocalthe use of the name "PDM Strocal, Inc." for

a period of twelve (12) months beginnng on November 3, 2000 and ending on November 3

2001. This transaction does not affect the rights to the "PDM" and "PITT-DES MOINS"

trademarks or the "Pitt-Des Moines" trade name, which remained assets of Pitt-Des Moines. In

all events, the license expired on November 3 2001. PDM Strocal now does business as

Strocal, Inc. and Candraft Detailing, Inc. continues to do business under that name. Accordingly,

2 Copies of the StrocaVCandraft Stock Purchase Agreement and each of the asset or stock purchase agreements and

any trademark licenses or assignment agreements or similar agreements or instrments referred to herein wil be.

provided to the Commission upon request.

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ths transaction should have no effect on Pitt-Des Moines' abilty to convey any rights in its

name or marks.

Sale of Oregon Culvert Co.. Inc. to Contech Constrction

Transaction

The second phase of the Marketing Plan involved the sale of a Pitt-Des Moines

subsidiar that manufactued, marketed and sold corrgated culvert pipe and accessories (the

Oregon Culvert Business ). Pursuant to the terms of a Stock Purchase Agreement dated

Januar 30, 2001 , by and between Contech Constrction Products, Inc. ("Contech") and Pitt-Des

Moines (the "Oregon Culvert Stock Purchase Agreement"), Contech purchased from Pitt-Des

Moines all of the issued and outstading shares of capital stock of Oregon Culvert Co.

Marks Transferred and Retained

No rights to use of the "Pitt-Des Moines" name or "PITT-DES MOINS" or

PDM" trademarks were conveyed or licensed as par of this transaction. Furer, Section 4.5 of

the Oregon Culvert Stock Purchase Agreement excludes from the scope of the transaction the

name "PDM" or "Pitt-Des Moines, Inc." or any derivative of either. Under Section 6.1 ofthe

Oregon Culvert Stock Purchase Agreement, however, Pitt-Des Moines agreed not to directly or

indirectly own, manage, operate, control, paricipate in, invest in or be connected in any maner

with the management, fmancing, ownership, operation or control of, any business, ventue or

activity engaged anywhere in the world in the Oregon Culvert Business under the names "PDM

Culvert"

, 

Oregon Culvert"

, 

Washington Culvert" or "Pitt-Des Moines, Inc." durg the period

beginng on Januar 30 2001 and ending on Januar 31 , 2006, in connection with the services

sold.

This transaction does not appear to affect the rights to the "Pitt-Des Moines" trade

name or the "PDM" and "PITT-DES MOINS" trademarks because no rights were conveyed or

BRMSI 574216v4
licensed under the agreement. However, because the Oregon Culvert Stock Purchase Agreement

includes the negative covenant cited above through January, 2006, any agreement with a

potential purchaser from Chicago Bridge of assets as a result of any divestitue as contemplated

by the Commission s Order in ths matter dated December 21 2004 ("Divestitue Order ) may

require a waiver, consent, or other clarification as to Contech' s rights.

Sale of Engineered Constrction and Water Divisions to Chicago Bridge & Iron

Company

Transaction

In Februar, 2001 , the Pitt-Des Moines Marketing Plan resulted in the sale of its

engineered constrction and water divisions to Chicago Bridge & Iron Company N.V. and CBI

Constrctors, Inc. (collectively "CBI"). Pursuant to the terms of the Asset Purchase Agreement

dated Februar 7, 2001 , by and among CBI and Pitt-Des Moines (the "CBI Asset Purchase

Agreement"), CBI purchased from Pitt-Des Moines the assets of Pitt-Des Moines' businesses of

engineering, fabricating and erecting (i) tans and systems for liquid and cryogenic storage

though its Engineered Constrction Division and (ii) water storage systems through its Water

Division (collectively, the "Engineered Constrctionlater Division Business

Marks Transferred and Retaned

Pursuant to Section 2. 6 of the CBI Asset Purchase Agreement, CBI acquired all:

" . . . copyrghts and registrations therefor, trademarks and registrations and

applications therefor, service marks and registrations and applications therefor

and trade names and registrations and applications therefor, all computer

softare, all product registrations and licenses, and all translations, adaptations

derivations and combinations of the foregoing, including those set fort in

Schedule 5. 1.10 of the PDM Disclosure Schedule; any and all data, know-how

trade secrets, proprieta processes and formulae, designs, drawings and

inventions (including all registrations, licenses and similar agreements and

research, analysis and supporting documentation in respect of the foregoing),

unegistered trademarks, service marks, tradenames and trade dress of Pitt-Des

Moines by the fEngineered Constrction Division and the Water Division l in

the conduct of the Engineered ConstrctionI ater Division l Business r emvhasis

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added! and all income, royalties, damages and payments which accrued as of the

closing of the transaction or thereafter with respect to any of the foregoing items

includig damages and payments for past, present or futue inngements or

misappropriation thereof, the right to sue and recover for past infngements or

misappropriation thereof and any and all corresponding rights that may be secured

anywhere in the world; and all goodwill associated with any of the foregoing

items.

Schedule 5. 10 of the PDM Disclosure Schedule that accompaned the CBI Asset

Purchase Agreement concerned itself only with the registered trademarks "Tubeseal" and

Buoyroof' and related intellectual propert. A Trademark Assignent Agreement dated

Februar 7, 2001 between Pitt-Des Moines and CBI Constrctors, Inc. formalized certin aspects

of the foregoing assignent. To the extent the conveyance provided by the foregoing covered

more than the items in the PDM Disclosure Schedule, it was limited by Section 2.2.8 of the CBI

Asset Purchase Agreement, which provides that except as granted pursuant to a separate

Trademark License Agreement of even date with the CBI Asset Purchase Agreement (the "CBI

Trademark License ), Pitt-Des Moines retained all rights to the names "Pitt-Des Moines" or

PDM" and any varation materially derived therefrom.

However, Section 7.8 of the CBI Asset Purchase Agreement sets forth certain

restrictions on Pitt-Des Moines' abilty to use its tradenames and marks that were not conveyed.

Specifically, Pitt-Des Moines agreed that it would not, directly or indirectly, use, or allow any .

successor or person which in competition with CBI or its afliates, sells, markets, distrbutes or

deals in all or any porton of the Engineered Constrction/ ater Division Business to use, the

names "Pitt-Des Moines" or "PDM", or any varation materially derived therefrom, in

connection with any business which is competitive to all or any portion of the Engineered

Constrction/ ater Division Business.

Furer the CBI Trademark License extended to CBI the right to use the "PDM"

trademark, but only in the Engineered Constrction/ ater Division Business, and only for one

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year. It expressly acknowledges Pitt-Des Moines' continuing ownership of the trademark and of

all associated goodwill, and CBl's agreement not to use the licensed trademark except

transitionally in connection with the Engineered Constrction/ ater Division Business, and not

to permit any thrd pary to do so without the prior wrtten consent of Pitt-Des Moines.

As a result of the foregoing, although CBI obtained no rights to the Pitt-Des

Moines tradenames, or the "PITT-DES MOINS' or " PDM" marks, any effective transfer of

rights to use the name or marks in a business competitive with CBI would require a waiver by

CBI of the provisions of Section 7.8 of the CBI Asset Purchase Agreement, which expressly

surives. (See CBI Asset Purchase Agreement Section 8.1(b).

Sale of Steel Service Centers Division to Reliance Steel

Transaction

The next component of the Pitt-Des Moines Marketing Plan led to the sale of its

steel service centers operated in the Midwestern and Western United States pursuant to the terms

of an Asset Purchase Agreement dated May 18, 2001 , by and between Reliance Steel &

Aluminum Co. ("Reliance Steel") and Pitt-Des Moines (the "Reliance Asset Purchase

Agreement"). The assets purchased by Reliance Steel from Pitt-Des Moines included the seven

Pitt-Des Moines distrbution and service centers whose businesses consisted of processing and

distrbuting a general line of steel products for use in constrction, including plates, sheets, bars

tubes, pipe and miscellaneous metal products (the "Service Business ) and the shares of stock of

General Steel Corporation ("General Steel"), a Washington corporation and a wholly-owned

subsidiar of Pitt-Des Moines that owned one of such servce centers.

Marks Retained and Transferred

Pursuant to Section 1.01(g) of the Reliance Asset Purchase Agreement, Reliance

Steel acquired inter alia

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(i)

(ii)

(iii)

tangible indicia including all United States and foreign trademarks and

trademark registrations and trademark applications, trade names

copyrghts, United States and foreign patents, patent applications

invention disclosures and drawings embodied or represented by the names

PDM Steel" or "PDM Steel Service Centers " including the logo

incorporating the PDM registered trademarks;

certain rights to use the names "PDM"

, 

PDM STEEL CENTERS"

PDM STEEL CENTERS CORP.

, 

PDM STEEL SERVICE CENTERS

INC.

, 

PDM SERVICE CENTER"

, 

PDM SERVICE CENTERS" and

PDM STEEL" as provided in a separate license agreement (the "Reliance

License Agreement"); and

all right, title and interest of Pitt-Des Moines in and to the Internet domain

name "pdmstee1.com

Pursuant to the terms and conditions of the Reliance License Agreement, Pitt-Des

Moines granted Reliance Steel a perpetual, worldwide, exclusive, royalty free license to use the

trade names "PDM"

, 

PDM STEEL CENTERS"

, 

PDM STEEL CENTERS CORP.

, 

PDM

STEEL SERVICE CENTERS INC.

, 

PDM SERVICE CENTER"

, 

PDM SERVICE

CENTERS" and "PDM STEEL" in connection with the Service Business. Notwthstadig the

foregoing, the license granted does not include the "PDM" mark separate or apar from its use in

the "PDM STEEL CENTERS"

, 

PDM STEEL CENTERS CORP.

, 

PDM STEEL SERVICE

CENTERS INC.

, 

PDM SERVICE CENTER"

, 

PDM SERVICE CENTERS" and "PDM

STEEL" marks. Moreover, pursuant to Section 1.020) of the Reliance Asset Purchase

Agreement, except as expressly granted therein or in the Reliance License Agreement, Pitt-Des

Moines retained all rights to the names "Pitt-Des Moines, Inc.

 

PDM" and all similar

derivative or related names, provided that such names are "not used in connection with a metas

service center or the processing and distrbution of metals.

Whle the permission granted under the Reliance License Agreement was not

limited in duration as the prior licenses, it is clear that the scope of the license to use the "PDM"

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mark is limited to the Service Business and accordingly, should not present any impediments to

granting a transitional license to a buyer in connection with the Divestitue Order.

Merger into Ironbridge and Subsequent Name Change

On Februar 1 , 2002, Pitt-Des Moines entered into a Merger Agreement (the

Merger Agreement") with Ironbridge Acquisition Corp. ("Ironbridge Acquisition ) and

Ironbridge Holding LLC ("Ironbridge Holding ) pursuant to which Ironbridge Acquisition

commenced a tender offer (the "Offer ) to purchase all of the issued and outstanding shares of

common stock of Pitt-Des Moines, whereupon Ironbridge Acquisition would merge into Pitt-Des

Moines such that Pitt-Des Moines would become a wholly-owned subsidiar ofIronbridge

Holding (the "Merger ). The Offer was successfully completed and the Merger effectuated on

March 13 2002.

Pursuant to a Plan of Merger filed as required by the Merger Agreement, Pitt-Des

Moines changed its name to Ironbridge Corp. and caused Pitt-Des Moines, as the entity suriving

the Merger, to agree to "use the words 'Pitt-Des Moines' and the initials ' PDM' . . . only for

puroses of managing the remaining assets of (Pitt-Des Moines) and identifying itself as the

appropriate business entity in dealing with thrd parties to faciltate the sale of any of such assets

and not for any other purose, including, without limitation, use of 'Pitt-Des Moines' or ' PDM'

as a trademark for the purose of marketing or promoting any product or service. . . .

Sale of Steel Bridge Division to Steel Bridges

Transaction

Simultaneously with the execution of the Merger Agreement, Pitt-Des Moines

cemented the last aspect of the Marketing Plan, the sale of its only remaining operating business

the steel bridge division. By Agreement dated Februar 1 2002 (the "Bridge Asset Purchase

Agreement") among Pitt-Des Moines, Steel Bridges, LLC (now known as PDM Bridge, LLC)

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Steel Bridges ) and PDM Bridge Corp., a wholly-owned subsidiar of Pitt-Des Moines ("PDM

Bridge ), Steel Bridges agreed to purchase from Pitt-Des Moines all of the assets of Pitt-Des

Moines related to its steel bridge engineerig and design, procurement and fabrication business

(the "Bridge Business ) immediately following the Merger. Both transactions closed on March

, 2002.

Marks Transferred and Retained

Pursuant to Section 1. 1 G) of the Bridge Asset Purchase Agreement, Steel Bridges

acquired all of Pitt-Des Moines' and PDM Bridge

trademarks, service marks, trade names, trade secrets, Internet domain names

copyrghts, designs, patents (and all applications relating thereto), licenses (as

licensee or licensor) used in or relating to the (Bridge Business) and all goodwill

and other agreements and applications with respect to the foregoing....(used in or

relating to the Bridge Business)...

Thus, pursuant to Section 1. 1 G) Pitt-Des Moines conveyed to Steel Bridges its

tradenames and trademarks used in the Steel Bridge Business. Ths conveyance was

accompaned by a Trademark Assignment Agreement dated March 13, 2002 by which Pitt-Des

Moines assigned to Steel Bridges:

. . . (its) entire right, title, and interest in and to its trademark used in the (Bridge

Business) in the United States and in all foreign countres, whether or not such

trademarks have been registered prior to, on or after the date of this Assignment

including the (two suriving trademarks set fort on Schedule A attched). . . and

any and all renewals and extensions thereof, together with the goodwill of the

(Bridge) Business cared on in connection with such (t)rademarks.

Trademark Assignent Agreement, Section lA. Schedule A to the Trademark Assignent

Agreement identified two registered trademarks for "PDM" dealing with the constrction of

sewage treatment plants and the constrction of bridges, buildings tas and vessels, and the

unegistered trademarks "PDM Bridge" and "PDM Bridge Corp.

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Although it appears that Pitt-Des Moines only conveyed trademarks and

tradename rights "used in the Bridge Business " one of the covenants in the Bridge Asset

Purchase Agreement includes a restrction on Pitt-Des Moines' ability to use its tradenames and

marks outside of the Bridge Business in languge that parots that in the Plan of Merger noted

above:

(Steel Bridges) is purchasing all of (Pitt-Des Moines' and PDM Bridge s) rights

to the names of(Pitt-Des Moines and PDM Bridge) in the (Bridge Business) and

therefore the Sellers shall not be entitled to use the name "PDM Bridge" or

varations thereof as corporate or business names or titles anywhere in the world

from and after the closing. (PDM Bridge) shall, simultaneously with the Closing,

underte and promptly pursue all necessar action to change its business and

corporate names to new names bearng no resemblance to its present name so as

to permit the use of such name by the (Steel Bridges). provided that for a period

of 180 days after such time as the name of (PDM Bridge l is so amended. Pitt-Des

Moines shall have the right to use the words "Pitt-Des Moines" and the initials

PDM" as its tradename. but only for purposes of managing the remaining assets

of rPitt Des-Moines and PDM Bridge l and identifying itself as the appropriate

business entity in dealing with third paries to faciltate the sale of any such assets

and not for any other purose. including without limitation. use of "Pitt-Des 

Moines" or "PDM" as a trademark for the purose of marketing or promoting any

product or service. Notwithstading anytng to the contrary in the forgoing, any

subsidiar of (pitt-Des Moines), other than (PDM Bridge) may continue to use the

initials "PDM" in its corporate name or in any tradename in the conduct of its

business for a period of one year from the Closing Date.

Bridge Asset Purchase Agreement, Section 10.3 (emphasis added). Whle unclear, this

provision, as well as that in the Plan of Merger, argubly contains an undertng by Pitt-Des

Moines not to use its tradename or its trademarks for any purose followig the name change of

PDM Bridge. Such an intent would appear to be inconsistent with the fact that the Bridge Asset

Purchase Agreement and Trademark Assignent Agreement dealt only with trademarks and

tradenames used in the Bridge Business, and the fact that the clause preceding the restrction

appears to deal only with PDM Bridge. Neverteless, an arguent could be made that the

underscored provision creates a broad restrction on use of words "Pitt-Des Moines" and the

mark "PDM" by Pitt-Des Moines for any purose.

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Furer, in connection with the Bridge Asset Purchase Agreement, Steel Bridges

entered into a Trademark Securty Agreement with Heller Financial, Inc. (now General Electrc

Capital Corporation) (the "Bridge Lender ) which granted to Bridge Lender a continuing

security interest in the same propert that is the subject of the Trademark Assignent

Agreement, and restrcts Steel Bridge s rights to grant any license, sell or assign any interests

therein, or enter into any agreement with respect thereto without the prior wrtten consent of the

Bridge Lender.

The USPTO records reflect both the outrght assignent of the registered

trademarks (i.e. "PDM" for use in connection with constrction of sewage treatment plants

bridges, buildings, tans and vessels) to Steel Bridges, as well as the securty interest in both the

registered and unegistered marks in favor of the Bridge Lender (although the USPTO has in

such registration misidentified the Bridge Lender under the name by which Steel Bridges is now

known, PDM Bridge, LLC) . Even though the assignent of the trademark registrations beyond

the Bridge Business may have been an oversight and not the intent of the paries, and even

though in the case of a confict between the rights conveyed by contract and the scope of an

active trademark registration, the express term of the contract most likely should govern, the

PDM" mark or marks are curently held by Steel Bridges, subject to the rights of the Bridge

Lender. Accordingly, the consent of Steel Bridges to any license in connection with the

Divestitue Order is advisable, and to that extent the Bridge Lender s consent would also be

requied.

3 The USPTO recently cancelled the registration for "PDM" in connection with "constrction of bridges, buildings

tas and vessels for others." Steel Bridges cannot successfully claim rights to the "PDM" mark broader than the

Bridge Business based upon the cancelled federal trademark registration. Steel Bridges remains the record owner 

the PDM active registration in connection with "construction of sewage treatment plants for others.

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III. FEASIBILITY OF A TRANSITIONAL LICENSE TO DIVSTITUR

BUYR

The Commission has asked for an assessment of the feasibilty of granting a

transitional license to any acquirer of the assets conveyed to CBI as the result of the Divestitue

Order. An initial review would suggest that Pitt-Des Moines curently owns the right to use the

tradename "Pitt-Des Moines" and the marks "PITT-DES MOINS" and "PDM" in the

Engineered Constrction/ ater Division Business, and thus, would be in a position to sell or

license, for reasonable consideration, such rights, either for a limited or unimited period of time.

Specifically, such rights would encompass the right to use the tradename "Pitt-Des Moines" and

the trademarks "PITT-DES MOINS" and "PDM" in connection with the Engineered

Constrction/Water Division Business, subject in all respects, however, to each ofthe existing

licenses and other rights extended to all ofthe foregoing asset purchasers from Pitt-Des Moines

as a result of its implementation of the Marketing Plan.

As already noted, however, the Commission should be aware of a number of

factors affecting, as well as the necessity or advisabilty of obtaining thrd-par consents to, any

license or sale to a purchaser of divested assets from Chicago Bridge and/or CBI.

The Name and Mark May be Deemed "Abandoned"

A trade name and/or mark is considered "abandoned" when it has not been used

in commerce for a period of time and the owner has demonstrated an intent to abandon such

name or mark. There is a presumption under the Lanam Act (Trademark Act), 15 U.

1127 that a mark that has not been used commercially for thee years in the ordiar course of

trade has been abandoned.

Pitt-Des Moines merged with Ironbridge Acquisition and changed its name to

Ironbridge Corp., in April 2002. Since then it has used the tradename "Pitt-Des Moines" and the

BRMS1574216v4
marks "PITT-DES MOINS" and "PDM" only in connection with winding up its business

including the sales of non-operating assets (primarily real propert and pension plan assets with

respect to former employees) and the settlement of claims on behalf of or against Pitt-Des

Moines. Although Pitt-Des Moines remains a licensor of the "PDM" mark as described above, it

derives no ongoing revenue from such uses and it is not clear that such status is a sufficient

commercial use (to avoid a claim of abandonment. Similarly, it is not clear that a bona fide

intention to license the name and mark to any acquirer as the result of the Divestiture Order

would constitute sufcient intention of commercial use to save the name and marks from a claim

of abandonment at this point, since Pitt-Des Moines itself has neither the intention of using the

name or mark commercially nor, as a contractual matter, the clear right to do so.

The issue of abandonment could be of concern if there is an entity that wishes to

preclude or prevent the use of the Pitt-Des Moines name and "PITT-DES MOINS" or "PDM"

marks in the business of the divested assets. However, given that barely thee years have lapsed

since the last commercial use of the tradename or marks by Pitt-Des Moines, and Pitt-Des

Moines is not aware of any currently competing use, it is unikely that there is any entity

stading by that would press an abandonment arguent to gain control of the tradenames or

trademarks.

Ambiguty of Steel Bridges Transactions and Overbreadth of its Trademark

Registrations

As noted above, the Bridge Asset Purchase Agreement is ambiguous in that, while

it conveys only marks used in the Bridge Business, it attempts to limit Pitt-Des Moines from

using its tradename and marks for any purose other than winding up its affairs. Furer, the

trademark registrations fied by Steel Bridges for the PDM mark relate to "constrction of

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sewage treatment plants for others" and "constrction of bridges, buildings tas and vessels

which descriptions are arguably broader than the business that was actually conveyed.

In order to avoid any doubt or later litigation, Pitt-Des Moines would need to

secure Steel Bridges' consent to a conveyance or license of the name and marks to any purchaser

of divested assets, as well as the consent of the Bridge Lender, plus a waiver of any rights it

acquired in these marks in businesses outside of that purchased from Pitt-Des Moines. Steel

Bridges may resist providing consent or may seek compensation for such consent.

Additionally, it may be necessary to correct the remaining active "PDM"

trademark registrations in the names of Steel Bridges and the Bridge Lender so as to narow their

scope consistent with the related agreements.

Consent of CBI

Because the CBI Asset Purchase Agreement also included language limiting Pitt-Des

Moines' use of the name " Pitt-Des Moines" or "PDM" in connection with any competitive

business (see discussion at Section II. 2 above), CBI's waiver or consent under the CBI Asset

Purchase Agreement would also be required.

Other Thid Par Rights.

Any acquirer should also be required to acknowledge the existence of all pre-existing

licenses and uses by Pitt-Des Moines' tranferees, including Reliance Steel and Contech, in order

to avoid any dispute concerng marketplace confsion resulting from multiple uses of the

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PDM" mark, logo or name and the "PITT- DES MOINS" mark and business name in a varety

of businesses related to the design, manufactue and distrbution of steel products.

Dated: April 6, 2005

Robert M. Unger

Jennfer L. Gray

Brown Raysman Milstein Felder & Steiner LLP

900 Thrd Avenue

New York, New York 10022

Tel: (212) 895-2000

Fax: (212) 895-2900

Attorneys for Respondent

Ironbridge Corp., formerly known as

Pitt-Des Moines, Inc.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT I TODAY CAUSED:

One original and twelve copies of Pitt-Des Moines, Inc.'s Briefmg on Complaint Counsel's

Motion for Clarfication to be served by Federal Express, one copy to be served by electronic

mail, and one copy to be served by facsimile upon:

Donald S. Clark

Secretary

Federal Trade Commission

Room H- 159

600 Pennsylvania Avenue, NW

Washigton, DC 20580

Fax: 202326-3227 and 202326-2543

One copy thereof to be served by Federal Express upon:

Steven L. Wilensky, Esq.

Federal Trade Commission

601 New Jersey Avenue, NW

Room NJ-6120

Washington, D.C. 20001

Rhett R. Krlla, Esq.

Assistant Director

Bureau of Competition

Federal Trade Commission

Room S-3602

600 Pennsylvana Avenue

Washigton, D.C. 200580

and one copy thereof to be served by facsimile and by first class mail upon:

Clifford H. Aronson, Esq.

Skadden, Ars, Slate, Meagher & Flom LLP

Four Times Squae

New York, NY 10035

Tel: (212) 735-2644

Fax: (917) 777-2644

Charles VV. Schwarz

Skadden, Ars, Slate, Meagher & Flom LLP

1600 Smith, Suite 440

Houston, Texas 77002-7348

Tel: (713) 615-5160

Fax: (888) 329-2286

Robert M. Unger

Brown Raysman Milstem Felder & Steiner LLP

Attorneys for Respondent

Ironbridge Corp. formerly known as

Pitt-Des Moines, Inc.

BRMSI 574789vl