Estta993955 08/09/2019 in the United States

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA993955 Filing date: 08/09/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92067143 Party Plaintiff Glow Concept Inc. Correspondence DAVID H FAUX Address LAW OFFICE OF DAVID H FAUX PC 1180 AVENUE OF THE AMERICAS 8TH FLOOR NEW YORK, NY 10036 UNITED STATES [email protected] 917-391-9468

Submission Motion to Compel Discovery or Disclosure Filer's Name David H. Faux Filer's email [email protected] Signature /David H. Faux/ Date 08/09/2019 Attachments CL19101-UNICORN Motion to Compel-FINAL-09Aug2019.pdf(95793 bytes ) CL19101-UNICORN Memo in Spt of Motion to Compel-FI- NAL-09Aug2019.pdf(139327 bytes ) CL19101-Motion to Compel Exhibits A-G Part I-09Aug2019.pdf(3747960 bytes ) CL19101-Motion to Compel Exhibits A-G Part II-09Aug2019.pdf(4459410 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In the matter of Trademark Registration No. 5,234,883 for the Mark UNICORN TEARS, registered July 4, 2017

------Glow Concept Inc., ) ) Petitioner ) ) Cancellation No. 92067143 vs. ) Interlocutory Attorney: Mike Webster ) Too Faced Cosmetics, ) ) Registrant ) ------

UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451

PETITIONER’S MOTION FOR AN ORDER TO COMPEL PRODUCTION

This motion is submitted pursuant to Trademark Rule 2.120(f), 37 C.F.R. §2.120(f), for an order compelling Registrant, Too Faced Cosmetics, LLC, to respond and produce documents responsive to

Petitioner’s First Set of Requests to Registrant for Production of Documents and Things.

The facts and argument in support of Petitioner’s motion are set forth in Petitioner’s Memorandum in

Support of its Motion for an Order to Compel Production submitted herewith.

(continued on next page)

CL0191-0001 1

Respectfully submitted,

By:

GLOW CONCEPT INC.

_/David H. Faux/______David H. Faux Law Office of David H. Faux, P.C. Attorney for Petitioner 1180 Avenue of the Americas, 8th Floor New York, NY 10036 Tel: 212-905-5031 [email protected]

Date: August 9, 2019

CL0191-0001 2

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served upon Registrant this 9th day of August,

2019 by email to its counsel, Eric Goodman, Esq., [email protected].

_/David H. Faux/______David H. Faux Law Office of David H. Faux, P.C. 1180 Avenue of the Americas, 8th Floor New York, NY 10036 (917) 391-9468 [email protected]

Attorney for Petitioner.

CL0191-0001 3

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

In the matter of Trademark Registration No. 5,234,883 for the Mark UNICORN TEARS, registered July 4, 2017

------Glow Concept Inc., ) ) Petitioner ) ) Cancellation No. 92067143 vs. ) Interlocutory Attorney: Mike Webster ) Too Faced Cosmetics, ) ) Registrant ) ------

UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451

MEMORANDUM IN SUPPORT OF PETITIONER’S MOTION FOR AN ORDER TO COMPEL PRODUCTION

This Memorandum in Support of Petitioner’s Motion for an Order to Compel Production (“Memo in

Support”) is filed pursuant to 37 C.F.R. §2.127(a), repeating the full statement of the grounds set forth in

the attached motion with pertinent exhibits attached hereto, pursuant to 37 C.F.R. §2.126(a)(2). Concisely,

Petitioner is entitled to any evidence Registrant will proffer during trial regarding its date of bona fide trademark use in commerce of UNICORN TEARS (the “Mark”), but Registrant has, three times, refused to provide such proof, requiring a court order from the Board compelling such disclosure.

CL0191-0001 1

STATEMENT OF THE CASE

As early as June of 2015, Petitioner developed a line of lip glosses, including one gloss trademarked

UNICORN TEARS, for which it developed a label as part of its normal course of conduct. Exhibit A.

On March 31, 2016, Too Faced Cosmetics, LLC (“Registrant” or “Too Faced”) applied for

registration of the Mark for “Cosmetics and cosmetic preparations,” claiming first use in commerce and

first use anywhere on December 1, 2015. The Mark’s registration issued on July 4, 2017 (U.S. Registration

No. 5,234,883). Exhibit B.

On October 9, 2017, Petitioner submitted an application for UNICORN TEARS, Serial No.

87/638,900 in International Class 03, “Lip gloss; Lip glosses.” Exhibit C.

On October 11, 2017, Petitioner filed and served a Petition for Cancellation seeking cancellation of

Registrant’s registration, asserting priority and likelihood of confusion as grounds for cancellation. On

December 15, 2017, Registrant filed its Answer denying all salient claims in the Petition for Cancellation.

On January 31, 2018, Registrant submitted a four-page letter entitled “REGISTRANT’S INITIAL

DISCLOSURES PURSUANT TO FRCP 26(a)(I)(A) AND TBMP § 401.02” (“Registrant’s Initial

Disclosures”) which merely referenced, without providing, “Documents establishing Registrant’s priority and standing.” Exhibit D.

On December 6, 2018, Petitioner submitted to Registrant “Petitioner’s First Request for Production of Documents and Things” (“Petitioner’s First RFP”). Exhibit E. Petitioner’s First RFP included explicit requests for: (a) “All documents and things referring or relating to the adoption and use (including

Registrant’s first use in intrastate and interstate commerce) of Registration Trademark . . .” (see Exhibit E,

page 4, #2); and (b) “All documents referring or relating to Registrant’s sale of goods or services under the

designation UNICORN TEARS or any variation thereof” (see Exhibit E, page 5, #5).

On March 20, 2019, Registrant submitted “REGISTRANT’S RESPONSES TO FIRST SET OF

REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER” (“Registrant’s

CL0191-0001 2

Response to Petitioner’s First RFP”), none of which provide any documentation of a first use of UNICORN

TEARS earlier than March of 2016. Exhibit F.

On July 24, 2019, Petitioner submitted via email to Registrant a letter regarding deficiencies in its responses to Petitioner’s First RFP (“Petitioner’s Letter Re: Deficiencies”), including a specific request that

Registrant “be sure [its] supplemental response includes the exact date of first use in commerce of

UNICORN TEARS on cosmetics (not ‘at least as early as December 1, 2015’) and the earliest instance of

that first use in commerce identified by geographic area, specific individual, retail store, etc.” (emphasis in

original). Exhibit G. Petitioner’s Letter Re: Deficiencies demanded supplemental responses by August 2,

2019.

To date, Registrant has not responded to Petitioner’s Letter Re: Deficiencies.

The deadline for pre-trial disclosures for the first testimony period, as reset, is Sunday, August 11,

2019. Therefore, today, August 9, Petitioner files a motion to compel discovery against Registrant, pursuant to 37 C.F.R. § 2.120(f)(1).

If Registrant has any proof of its first use in commerce prior to March of 2016, then Registrant has not provided this proof, even in response to Petitioner’s explicit requests.

PROOF OF FIRST USE ESSENTIAL TO BOTH PARTIES’ CLAIMS

“It is axiomatic in trademark law that ownership of a mark is predicated on priority of use in commerce.” Lyons v. Am. College of Veterinary Sports Med. & Rehab., 859 F.3d 1023, 1027 (Fed. Cir.

2017). “[T]rademark law protects the first party to use the mark in commerce regardless of whether the

party registered the mark.” Sterling Jewelers, Inc. v. Artistry Ltd., 896 F.3d 752, 754 (6th Cir. 2018).

Therefore, Registrant’s claim of prior use requires proof of use in commerce of the Mark prior to

Petitioner’s exhibited first use in commerce of the Mark.

CL0191-0001 3

Proof of use in commerce for a registered mark is two-pronged, requiring (1) a “bona fide use of

a mark in the ordinary course of trade” and (2) use “not made merely to reserve a right in a mark.” 15

C.F.R. § 1127. Additionally,

a mark shall be deemed to be in use in commerce . . . on goods when . . . it is placed in

any manner on the goods or their containers or the displays associated therewith or on the

tags or labels affixed thereto . . . and the goods are sold or transported in commerce . . . .

Id. Such sale or transport must be “subject to Congress’s power under the Commerce Clause, which

includes its power to regulate interstate commerce,” indicating that the sale or transport must have

crossed state lines. Id. Therefore, the Registrant must be able to provide proof that the mark was both

affixed to the pertinent goods and sold or transported in interstate commerce prior to Petitioner’s first

bona fide use in commerce. The proof requested herein, thus, is central to Registrant’s legal position.

Unless otherwise limited by court order . . . [p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case, considering the importance of the issues at stake in

the action, the amount in controversy, the parties’ relative access to relevant information,

the parties’ resources, the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). Furthermore, “a party may not, by limiting its own discovery and/or

presentation of evidence on the case, thereby restrict another party’s discovery in any way.” TBMP §

402.01; See Crane Co. v. Shimano Industrial Co., 184 USPQ 691, (TTAB 1975). Therefore, because the

date of first bona fide use in commerce by Registrant is central to the parties’ respective claims about

prior use, Registrant must provide proof of a bona fide use of the Mark in the ordinary course of trade, not made merely to reserve a right in a mark, and sold or transported in interstate commerce.

(continued on next page)

CL0191-0001 4

PROOF OF FIRST USE NOT SUPPLIED BY REGISTRANT

Registrant has failed, now three times, to provide proof of any bona fide use in commerce of the

Mark. First, Registrant failed by not providing any such documentation in its four-page letter

referencing, without actually providing, initial disclosures.

Second, while Registrant submitted 224 pages of documents in Registrant’s Response to

Petitioner’s First RFP, those documents only include:

• Screenshot print-outs of Registrant’s web page from 2018;

• Documents publicly available through the USPTO;

• Undated screenshots of various web pages with the words “Unicorn Tears” on them;

• Dated screenshots of various web pages with the words “Unicorn Tears” on them from

November of 2016 and after;

• Schedules of Registrant’s trademarks, listing the Mark as filed for registration in March of 2016;

• October, 2017 and subsequent correspondence from Registrant to various parties allegedly

infringing Registrant’s intellectual property;

• Marketing materials dated August of 2017 and later;

• Sales records implying, but not exhibiting, use of the Mark from February of 2016 and later1;

and

• Reportage on media content from “ambassadors” dated March of 2016 and later—including

September, 2016 posts announcing that “Too Faced came out with Unicorn Tears . . . .”

None of these documents indicate a use earlier than March of 2016, nor a trademark use, nor a use in commerce earlier than September of 2016.

Third, Registrant has failed to respond to Petitioner’s request for supplemental responses in light of the inadequate disclosures described above.

1 Registrant labeled its sales figures as “Confidential.” Therefore, Petitioner wishes to provide an opportunity for Registrant to either (a) stipulate that the sales records do not exhibit a trademark use of the Mark in commerce or (b) redact the sales figures prior to submission to the Board. CL0191-0001 5

GOOD FAITH EFFORT TO RESOLVE

Petitioner, through its letter of July 24, 2019, has made a good faith effort by correspondence to resolve with Registrant the issues presented in this motion pursuant to 37 C.F.R. § 2.120(f), but Registrant has not responded. Registrant has had three opportunities to fulfill its obligation to provide this central piece of evidence, but refuses to do so.

CONCLUSION

Registrant repeatedly claims a bona fide use in commerce of the Mark “at least as early as

December 1, 2015,” but has failed three times to provide proof of this essential element when claiming priority: (1) initial disclosures, (2) pre-trial disclosures per Petitioner’s First RFP, and (3) Petitioner’s Letter

Re: Deficiencies. Proof of first use in commerce of the Mark is essential to both parties’ claims and must be exhibited by a bona fide use of a mark in the ordinary course of trade, not made merely to reserve a right in a mark. Registrant is merely dancing around the central question of this case: when did it begin bona fide trademark use in commerce of the Mark? Without this information, exhibited by the standard documentation, Petitioner cannot move forward with trial.

Because evidence of first use in commerce is central, and Registrant has continually refused to provide this evidence, Petitioner is entitled to a court order compelling production of such evidence.

Respectfully submitted, By:

GLOW CONCEPT INC.

_/David H. Faux/______David H. Faux Law Office of David H. Faux, P.C. Attorney for Petitioner 1180 Avenue of the Americas, 8th Floor New York, NY 10036 Tel: 212-905-5031

Date: August 9, 2019 CL0191-0001 6

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served upon Registrant this 9th day of August,

2019 by email to its counsel, Eric Goodman, Esq., [email protected].

_/David H. Faux/______David H. Faux Law Office of David H. Faux, P.C. 1180 Avenue of the Americas, 8th Floor New York, NY 10036 (917) 391-9468 [email protected]

Attorney for Petitioner.

CL0191-0001 7

Exhibit A

David Faux

From: Natalie Mackey Sent: Wednesday, January 10, 2018 3:11 PM To: Eric Klaussmann Subject: in-house label file

Created June 5, 5

Exhibit B

Reg. No. 5,234,883 Too Faced Cosmetics, LLC (DELAWARE LIMITED LIABILITY COMPANY) 18231 McDurmott West Registered Jul. 04, 2017 Irvine, CA 92614 Int. Cl.: 3 CLASS 3: Cosmetics and cosmetic preparations FIRST USE 12-1-2015; IN COMMERCE 12-1-2015 Trademark THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY Principal Register PARTICULAR FONT STYLE, SIZE OR COLOR SER. NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION

WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.

Requirements in the First Ten Years* What and When to File:

First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court.

Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File:

You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings*

The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee.

*ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations. See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/.

NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov.

NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov.

Page: 2 of 2 / RN # 5234883

Exhibit C

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018) Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 87638900 Filing Date: 10/09/2017

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered TEAS Plus YES MARK INFORMATION

*MARK UNICORN TEARS

*STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

LITERAL ELEMENT UNICORN TEARS The mark consists of standard characters, without claim to any *MARK STATEMENT particular font style, size, or color. REGISTER Principal APPLICANT INFORMATION

*OWNER OF MARK Glow Concept Inc.

DBA/AKA/TA/FORMERLY DBA Winky Lux

INTERNAL ADDRESS #202

*STREET 77 Ludlow

*CITY New York

*STATE New York (Required for U.S. applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 10002 (Required for U.S. applicants) LEGAL ENTITY INFORMATION

*TYPE CORPORATION

* STATE/COUNTRY OF INCORPORATION New York GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL CLASS 003

*IDENTIFICATION Lip gloss; Lip glosses

*FILING BASIS SECTION 1(a) FIRST USE ANYWHERE DATE At least as early as 07/00/2015

FIRST USE IN COMMERCE DATE At least as early as 07/00/2015

SPECIMEN \\TICRS\EXPORT17\IMAGEOUT FILE NAME(S) 17\876\389\87638900\xml1\ FTK0003.JPG screenshot of owner's website (under assumed name of Winky Lux certified in New York State) with use of mark (i.e., UNICORN TEARS) in direct connection to Class 03 goods SPECIMEN DESCRIPTION (i.e., lip gloss) with persistent shopping cart in upper right- hand corner to effect consumer's purchase of goods from owner. ADDITIONAL STATEMENTS INFORMATION

*TRANSLATION (if applicable)

*TRANSLITERATION (if applicable)

*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAME/LIKENESS) (if applicable)

*CONCURRENT USE CLAIM (if applicable) ATTORNEY INFORMATION

NAME David H. Faux

ATTORNEY DOCKET NUMBER CL19101

FIRM NAME Law Office of David H. Faux, P.C.

INTERNAL ADDRESS 8th Floor

STREET 1180 Avenue of the Americas

CITY New York

STATE New York

COUNTRY United States

ZIP/POSTAL CODE 10036

PHONE 917-391-9468

FAX 646-664-1506

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes CORRESPONDENCE INFORMATION

*NAME David H. Faux

FIRM NAME Law Office of David H. Faux, P.C.

INTERNAL ADDRESS 8th Floor

*STREET 1180 Avenue of the Americas

*CITY New York

*STATE New York (Required for U.S. addresses) *COUNTRY United States

*ZIP/POSTAL CODE 10036

PHONE 917-391-9468

FAX 646-664-1506

*EMAIL ADDRESS [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION

APPLICATION FILING OPTION TEAS Plus

NUMBER OF CLASSES 1

FEE PER CLASS 225

*TOTAL FEE PAID 225 SIGNATURE INFORMATION

* SIGNATURE /David H. Faux/

* SIGNATORY'S NAME David H Faux

* SIGNATORY'S POSITION Attorney of Record, NY

SIGNATORY'S PHONE NUMBER 917-391-9468

* DATE SIGNED 10/09/2017 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 87638900 Filing Date: 10/09/2017 To the Commissioner for Trademarks:

MARK: UNICORN TEARS (Standard Characters, see mark) The mark in your application is UNICORN TEARS.

The applicant, Glow Concept Inc., DBA Winky Lux, a corporation of New York, having an address of #202 77 Ludlow New York, New York 10002 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table. International Class 003: Lip gloss; Lip glosses

Use in Commerce: The applicant is using the mark in commerce on or in connection with the identified goods/services. The applicant attaches, or will later submit, one specimen as a JPG/PDF image file showing the mark as used in commerce on or in connection with any item in the class of listed goods/services, regardless of whether the mark itself is in the standard character format or is a stylized or design mark. The specimen image file may be in color, and the image must be in color if color is being claimed as a feature of the mark.

In International Class 003, the mark was first used by the applicant or the applicant's related company or licensee predecessor in interest at least as early as 07/00/2015, and first used in commerce at least as early as 07/00/2015, and is now in use in such commerce. The applicant is submitting one(or more) specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods/services, consisting of a(n) screenshot of owner's website (under assumed name of Winky Lux certified in New York State) with use of mark (i.e., UNICORN TEARS) in direct connection to Class 03 goods (i.e., lip gloss) with persistent shopping cart in upper right-hand corner to effect consumer's purchase of goods from owner.. Specimen File1

The applicant's current Attorney Information: David H. Faux of Law Office of David H. Faux, P.C. 8th Floor 1180 Avenue of the Americas New York, New York 10036 United States 917-391-9468(phone) 646-664-1506(fax) [email protected] (authorized) The attorney docket/reference number is CL19101. The applicant's current Correspondence Information: David H. Faux Law Office of David H. Faux, P.C. 8th Floor 1180 Avenue of the Americas New York, New York 10036 917-391-9468(phone) 646-664-1506(fax) [email protected] (authorized) E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or the applicant's attorney, or the applicant's domestic representative at the e-mail address provided in this application. I understand that a valid e-mail address must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Plus status and a requirement to submit an additional processing fee of $125 per international class of goods/services.

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

Basis: If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):

The signatory believes that the applicant is the owner of the trademark/service mark sought to be registered; The mark is in use in commerce on or in connection with the goods/services in the application; The specimen(s) shows the mark as used on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.

AND/OR If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e):

The signatory believes that the applicant is entitled to use the mark in commerce; The applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive. To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary support. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. Declaration Signature

Signature: /David H. Faux/ Date: 10/09/2017 Signatory's Name: David H Faux Signatory's Position: Attorney of Record, NY Signatory's Phone Number: 917-391-9468 Payment Sale Number: 87638900 Payment Accounting Date: 10/10/2017

Serial Number: 87638900 Internet Transmission Date: Mon Oct 09 20:12:47 EDT 2017 TEAS Stamp: USPTO/FTK-XXX.XXX.XXX.XXX-20171009201247 230124-87638900-5105f7854114493e8576f286 61788fd7a04a7c4dfd754406fdd84a246da4a4cd 0-CC-15961-20171009200906626844

Exhibit D

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In the Matter of Registration No. 5,234,883 Mark: UNICORN TEARS

ApplicationGLOW CONCEPTS, Serial No. INC., 78/527,558 Cancellation No.: 92067143 Petitioner,

TOO FACED COSMETICS, LLC,

Registrant.

REGISTRANT’S INITIAL DISCLOSURES PURSUANT TO FRCP 26(a)(1)(A) AND TBMP § 401.02 Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A) and Trademark Trial and Appeal Board Manual of Procedure § 401.02, Registrant TOO FACED COSMETICS, LLC (“TOO FACED” or “Registrant”) makes the following initial disclosures.

PRELIMINARY STATEMENT TOO FACED believes that Petitioner and/or third parties are in exclusive possession, custody and control of information and documents that may support the claims and defenses alleged in this proceeding. These disclosures are based solely on the information and documents known and available to Registrant without the benefit of discovery and are made without prejudice to Registrant’s right to supplement and/or amend these disclosures based upon subsequently discovered facts and evidence and/or as required by law.

REGISTRANT’S INITIAL DISCLOSURES (Cancellation No.: 92067143) 1. Potential Witnesses. Based upon the information and documents available to it at present, Registrant identifies the following witness who will likely have discoverable information in support of its claims and defenses:

Mr. Eric Hohl Global Brand President Too Faced Cosmetics, LLC

Ms. Juli Jones Regulatory & International Compliancy Director Too Faced Cosmetics, LLC

Mr. Hohl and Ms. Jones may be contacted only through Registrant’s counsel, Goodman Mooney, LLP. They each have knowledge regarding Registrant’s adoption, use and registration of the trademark at issue in this proceeding, including consumer recognition of Registrant’s mark. In addition, Registrant designates all witnesses identified by Petitioner in this proceeding and reserves its right to designate additional witnesses as their identities are discovered. These witnesses are expected to have knowledge of Petitioner’s basis for its claims in the Petition for Cancellation; all purported use by Petitioner of the mark at issue; and evidence that would support a finding that Petitioner’s use of UNICORN TEARS as a shade name functions as a trademark. 2. Documents. Based upon the information and documents available to it at present, Registrant identifies the following documents, electronically stored information, and tangible things in its possession, custody and control that may be used to support its claims and defenses, unless such use would be solely for impeachment: (a) Registration of Registrant’s UNICORN TEARS mark; (b) Documents concerning the products offered under the Registrant’s UNICORN TEARS mark;

REGISTRANT’S INITIAL DISCLOSURES (Cancellation No.: 92067143) (c) Documents concerning the advertising, promotion and marketing of goods offered under the Registrant’s UNICORN TEARS mark; (d) Documents establishing Registrant’s priority and standing; (e) Documents concerning consumer and industry recognition of Registrant’s UNICORN TEARS branded products; (f) Documents regarding the manner of use of UNICORN TEARS by Petitioner. The documents referred to in this Section 2 above are located at Registrant’s offices or at the offices of Registrant’s counsel. Registrant has not concluded its investigation of the facts relating to this case and has not completed formal discovery or preparation for trial. Accordingly, there may exist information that Registrant does not yet have knowledge of or has not yet located, identified or reviewed. All of the foregoing disclosures are therefore based on such information currently known or available to Registrant after a reasonable inquiry pursuant to Federal Rule of Civil Procedure 26(a)(l)(E). Registrant reserves the right to alter, amend or supplement its disclosures herein pursuant to Federal Rule of Civil Procedure 26(e) as made applicable to this proceeding pursuant to the Trademark Rules of Practice 2.116.

Dated: January 31, 2018 GOODMAN MOONEY LLP

Eric Goodman 3420 Bristol Street, Sixth Floor Costa Mesa, CA 92626 T: 949.622.0020 F: 949.622.0024 [email protected] Attorneys for Registrant Too Faced Cosmetics, LLC

REGISTRANT’S INITIAL DISCLOSURES (Cancellation No.: 92067143) CERTIFICATE OF SERVICE

I hereby certify that I served a copy of the foregoing REGISTRANT’S INITIAL DISCLOSURES PURSUANT TO FRCP 26(a)(1)(A) AND § TBMP 401.02 upon Petitioner’s counsel on January 31, 2018 by emailing the document to the following address:

David H. Faux 1180 Avenue of the Americas, 8th Floor New York, NY 10036 [email protected]

Eric Goodman

REGISTRANT’S INITIAL DISCLOSURES (Cancellation No.: 92067143)

Exhibit E

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

In the matter of Trademark Registration No. 5,234,883 for the Mark UNICORN TEARS, registered July 4, 2017

------Glow Concept Inc., ) ) Petitioner ) ) Cancellation No. 92067143 vs. ) Interlocutory Attorney: Mike Webster ) Too Faced Cosmetics, ) ) Registrant ) ------

UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451

Petitioner’s First Request for Production of Documents and Things

Pursuant to Rule 34 of the Federal Rules of Civil Procedure and 37 C.F.R. § 2.120 of the Trademark Rules of Practice (37 C.F.R. § 2.120), Petitioner, Glow Concept Inc. (“Petitioner”) serves its First Request For Production of Documents and Things upon Registrant, Too Faced Cosmetics (“Registrant”), and hereby requests that Registrant produce the following documents and things for inspection and copying, along with a written response to this request at the offices of Petitioner’s counsel: Law Office of David H. Faux, P.C., within thirty (30) days after the service hereof. To the extent permitted by Rule 26(e) of the Federal Rules of Civil Procedure, these requests are to be deemed continuing and the responses thereto are to be supplemented promptly upon Registrant’s acquisition of further or additional information or documents.

General Definitions and Instructions

The following definitions are applicable herein:

1. The terms “Registrant” and “you” or “yours” mean and refer to the Registrant, Too Faced Cosmetics, its subsidiaries and any merged or acquired subsidiaries; its predecessors, or controlled, controlling, or affiliated companies; and Registrant’s past and present officers, employees, agents, representatives and attorneys, all to the fullest extent the context permits.

The term “Petitioner” means and refers to the Petitioner, Glow Concept Inc., and includes the Petitioner herein, its predecessors in business, and their officers, directors, agents, employees, and attorneys, both present and past.

The term “Registrant’s Trademark” and similar terms means and refers to Registrant’s alleged trademark, the subject of Registration No. 5234883 for the following goods and services: Cosmetics and cosmetic preparations.

The term “Petitioner’s Trademark” and similar terms means and refers to Petitioner’s Trademark, including Application Serial No. 87638900 for the goods and services set forth in the aforesaid application.

The term “person” refers to both natural persons and to corporate or other business entities, partnerships, groups, associations, governmental entities, or other organizations.

The term “document” is used herein in its customary broad sense as defined in FRCP 34(a), and includes, without being limited to, the original and all copies (carbon, photocopy, photographic, microfilm, or otherwise) of any advertising or promotional material (including, without limitation, art work, copies of drafts thereof, proofs, tear sheets, scripts, storyboards, etc.), brochures, business cards, travel tickets, lodging confirmations, lists of customers, lists of customer inquiries, rate schedules, letters, correspondence, customer or other complaints, books, journals, ledgers, working papers, invoices, contracts, purchase orders, estimates, reports, memoranda, interoffice communications, records, studies, appraisals, papers, charts, recordings of or memoranda of any conversation (by telephone or otherwise), meeting or conference, or any other writing however produced or reproduced; all other handwritten, typed, printed, or otherwise visually or aurally reproduced materials, whether copies or originals, including, but not limited to, letters, cables, wires, memoranda and interoffice communications; reports, notes, minutes and recordings; drawings, blueprints, sketches, charts, photographs, microfilm records, data compilations and movies; copyrights, copyright registration applications, patents, trademarks, patent applications, trademark applications, assignments, contracts, agreements, licenses and other official documents and legal instruments; published material of any kind; annual reports, reports to shareholders and minutes or reports of meetings of directors or executive boards or committees; advertising or promotional literature and press releases; engineering notebooks and data; and ledgers, bills, orders, books, records, and files that are in the possession, custody or control of Registrant or any of its officers, agents, or employees and/or Registrant’s attorneys. The term “document” or “documents” also includes all copies that are not identical with the original.

As used herein, “and” as well as “or” shall be construed either disjunctively or conjunctively as necessary in order to bring within the scope of the request all documents and things which might otherwise be construed to be outside its scope.

As used herein, the singular shall always include the plural and the present tense shall always include the past tense.

The term “thing” as used herein refers to any tangible object other than a document, and includes objects of every kind and nature such as, but not limited to, prototypes, models, specimens, computer disks and tapes, videotapes and audiotapes.

10.

Unless otherwise stated in a request, the relevant time period applicable to these requests shall be January 1, 2015 to the date of Registrant’s response hereto.

11.

Should Registrant withhold any document requested by any of the following requests, Registrant shall, in its written response, describe such document by specifying the following for each such document:

(a)

The date appearing on the document and if no date appears thereon, so state and give the date or approximate date on which the document was prepared;

(b)

The identifying number, letter, or combination thereof, if any, and the significance of meaning of such;

(c) The general nature or description of the document (i.e., whether it is a letter, memorandum, minutes of a meeting, etc.), and the number of pages of which it consists;

(d)

The name of the person who signed the document and if it was not signed, so state and give the name of the person or persons who prepared it;

(e)

The name of the person to whom the document was addressed and the name of each person, other than such addressee, to whom the document, or a copy thereof, was sent;

(f)

The subject matter to which the document relates; and

(g)

The specific claim relied on for withholding production of the document. * * * * * * *

Requests for Production

All documents and things referring or relating to the creation and selection of Registrant’s Trademark, including correspondence with and memoranda between Registrant and any name consultant, design firm, advertising agency, advertising media, suppliers and printers.

All documents and things referring or relating to the adoption and use (including Registrant’s first use in intrastate and interstate commerce) of Registrant’s Trademark, including correspondence with and memoranda between Registrant and any name consultant, design firm, advertising agency, advertising media, suppliers and printers.

All search reports and investigation reports prepared by or for Registrant which refer to, relate to, or comment upon Registrant’s Trademark or Petitioner’s Trademark.

All federal and state service mark applications filed by or on behalf of Registrant for Registrant’s Trademark, and all documents referring or relating to any such applications. 5.

All documents referring or relating to Registrant’s sale of goods or services under the designation UNICORN TEARS or any variation thereof.

All documents and things referring or relating to, or comprising any permission given by Registrant to any third party to use a trademark, or trade name which Registrant considered or considers to be similar or identical to Registrant’s Trademark, including all franchise agreements, licenses, and other documents permitting such use, and all documents relating thereto.

All documents and things referring or relating to, or comprising any permission received by Registrant from any third party to use a trademark, or trade name which Registrant considered or considers to be similar or identical to Registrant’s Trademark or trade name, including all franchise agreements, licenses, and other documents permitting such use, and all documents relating thereto.

All documents and things pertaining to use by third parties of a service mark, trademark, or trade name including or consisting of the designation UNICORN TEARS.

All documents and things referring or relating to or comprising any challenges Registrant has ever made to any third party, and any third party has made to Registrant, concerning the use of any service mark, trademark, or trade name which was considered to conflict with Registrant’s Trademark or any portion thereof.

10.

All documents and things referring or relating to, or comprising any assignment of any trademark rights for Registrant’s Trademark.

11.

All documents and things referring or relating to any court or USPTO action filed by Registrant or filed against Registrant in connection with Registrant’s Trademark.

12.

Specimens of all advertising and promotional documents bearing Registrant’s Trademark, including brochures, catalogues, circulars, leaflets, direct mail pieces, newspaper and magazine advertisements, commercials, telephone book advertisements, price lists, trade association listings, annual reports, and any other material such as labels, tags, packages, containers, decals, stamps, and name plates used by Registrant, its distributors, or other sellers of its products or services.

13.

Specimens of all types of goods bearing Registrant’s Trademark.

14.

All documents identifying the publications and broadcast media in which Registrant has advertised, is advertising, or has planned to advertise any of its products or services bearing or sold under Registrant’s Trademark.

15.

Specimens of each different counter display or other point-of-sale display prepared, printed, or disseminated by or for Registrant in which the designation UNICORN TEARS or any variation thereof appears since the alleged date of first use of that designation to date.

16.

Copies of all television commercials, radio scripts, and other media advertising not previously requested in which the designation UNICORN TEARS or any variation thereof appears or is mentioned.

17.

All documents referring or relating to or commenting upon Registrant’s advertising or promotional expenditures for any goods or services under the designation UNICORN TEARS or any variation thereof.

18.

All documents and things relating or referring to the geographic scope of the advertising, distribution and sale of goods or services bearing or under Registrant’s Trademark.

19.

All documents and things relating or referring to, or comprising, Registrant’s advertising expenditures for goods bearing or services sold under Registrant’s Trademark by geographic or distribution regions where the services have been offered or products have been sold.

20. All documents referring or relating to, or comprising Registrant’s customer lists, prospective customer lists, and mailing lists for products or services offered and sold under Registrant’s Trademark.

21.

All documents referring or relating to or comprising any consumer or market survey, test, or study Registrant has conducted or has caused to be conducted regarding the public’s or the trade’s recognition of or reaction to Registrant’s Trademark.

22.

23.

All documents referring or relating to, or comprising any consumer or market survey, test, or study Registrant has conducted or has caused to be conducted regarding any confusion among the public, retailers, or the trade resulting from the use of Registrant’s Trademark.

24.

All documents referring or relating to, or comprising Registrant’s first notice of Petitioner’s use and application and registration of Petitioner’s Trademark.

25.

All documents referring or relating to, or comprising any communication or notice to Registrant concerning the possibility that Registrant’s use of Registrant’s Trademark, or any portion or variation thereof, might or might not result in confusion or mistake in any industry or among the public, particularly in view of Petitioner’s use of Registrant’s Trademark.

26.

All documents regarding the types and classes of consumers to whom, and the markets and channels of trade in the United States through which Registrant markets or sells goods and services identified by Registrant’s Trademark, including without limitation all documents indicating the channels of commerce through which Registrant offers and sells its services or goods to consumers, and including without limitation all documents indicating the manner in which orders are solicited for Registrant’s goods and services marketed or sold under Registrant’s Trademark or by any division, subsidiary, or related company.

27. All documents and things referring or relating to any modification by Registrant of Registrant’s Trademark or trade name since the first use thereof, including all documents relating to the reason such modification was made.

28.

All documents and things referring or relating to, or comprising statements, inquiries, comments, or other communications by or from Registrant’s customers, distributors, suppliers, or others, relating to the similarity of Registrant’s Trademark to Petitioner’s Trademark or evidencing any confusion, suspicion, belief, or doubt on the part of said third-parties as to the relationship between either or both of the Petitioner and Registrant or their respective products or services sold under Registrant’s Trademark or Petitioner’s Trademark, including any misdirected complaints or inquiries.

29.

All documents referring or relating to or comprising any communication, oral or written, received by Registrant from any person which suggests, implies, or infers any connection or association with Petitioner or which inquires as to whether there is or may be such a connection or association.

30.

All documents referring or relating to or evidencing or comprising any instance or occurrence of actual confusion on the part of any person due to Petitioner’s and Registrant’s use of Registrant’s Trademark.

31.

All documents referring or relating to or comprising any opinion from counsel, whether or not such counsel was employed by Registrant, concerning Registrant’s rights to Registrant’s Trademark, including without limitation all documents identifying the date of any such opinion and the attorney rendering the opinion, or discussing any action Registrant may have taken, or considered taking, in reliance upon said opinion.

32.

All documents referring or relating to or commenting upon Registrant’s development, manufacture, offering for sale, sale, and distribution of any goods or services with which the designation UNICORN TEARS or any variation thereof has been used.

33.

All documents referring or relating to, or comprising, any analyses, studies, or reports relating to the sales or prospective sales of Registrant’s goods or services under Registrant’s Trademark, including but not limited to business plans, marketing plans, development plans, financial plans, and budgetary plans.

34.

All documents referring or relating to, or comprising, any plan Registrant has to expand the type of goods or services it offers for sale under Registrant’s Trademark.

35.

All documents referring or relating to or comprising or commenting on Registrant’s incorporation, corporate name reservations, qualifications to do business, trade name registrations and assumed name recordals for Registrant and any of its divisions, subsidiaries, or related businesses, referring or relating to the use of Registrant’s trade name.

36.

All documents and things referring or relating to the proportion of Registrant’s products or services marketed and sold under Registrant’s Trademark.

37.

All documents regarding Registrant’s policy with respect to retention of documents, including business records.

38.

All documents referring or relating to or evidencing or comprising any inquiry, investigation, or survey conducted by or on behalf of Registrant regarding any issues involved in this opposition proceeding.

39.

All statements or opinions of any expert retained by Registrant or any person acting for or on behalf of Registrant regarding any of the issues involved in this opposition proceeding.

40.

All documents, other than those produced in response to any of the foregoing requests, identified by Registrant in its responses to Petitioner’s First Set of Interrogatories.

41.

All documents, other than those produced in response to any of the foregoing requests, upon which Registrant intends to rely in connection with this proceeding.

Respectfully submitted,

GLOW CONCEPT INC.

Date December 6, 2018 _/s/ David H. Faux______David H. Faux 1180 Avenue of the Americas, 8th Floor New York, NY 10036 (T) 917-391-9468 (F) 646-644-1506 E-Mail: [email protected] Attorneys for Petitioner CERTIFICATE OF SERVICE

I hereby certify that I served a copy of the foregoing PETITIONER’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS upon Registrant’s counsel on December 6, 2018 by emailing the document to the Eric Goodman, Esq., Goodman Mooney LLP, Attorneys for Registrant, [email protected]

_/David H. Faux/______David H. Faux Law Office of David H. Faux, P.C. 1180 Avenue of the Americas, 8th Floor New York, NY 10036 (917) 391-9468 Attorney for Petitioner Glow Concept Inc.

Exhibit F

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In the Matter of Registration No. 5,234,883 Mark: UNICORN TEARS

ApplicationGLOW CONCEPTS, Serial No. INC.,78/527,558 Cancellation No.: 92067143 Petitioner,

TOO FACED COSMETICS, LLC,

Registrant.

REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER Registrant TOO FACED COSMETICS, LLC (“Registrant” or “Too Faced”) responds as follows to the first set of requests for production of documents and things propounded to it by Petitioner GLOW CONCEPTS, INC. (“Petitioner” or “Glow Concepts”). PRELIMINARY STATEMENT Registrant has responded to all of the Requests to the extent that the facts and evidence concerning each Request are known to it. However, Registrant’s discovery, internal investigation, and preparation for trial of this matter is not complete as of the date of these Responses, and therefore these Responses include only the information presently known to or discovered by Registrant.

1 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) It is anticipated that further discovery, investigation, research and analysis will supply additional information, evidence, documents and/or facts, and add meaning to the known facts, as well as establish entirely new factual conclusions and legal contentions, all of which may lead to substantial additions to, changes in, and variations from the responses set forth herein. Registrant therefore reserves the right to continue discovery in this matter and to continue its investigation for facts, witnesses and supporting data that may result in amended or supplemental responses to the Requests. Registrant has prepared these Responses based on Registrant’s good-faith interpretation and understanding of the individual Requests, and these Responses are subject to correction for inadvertent errors or omissions, if any. These Responses are given without prejudice to subsequent revision or supplementation based upon any information, evidence, and documentation which hereafter may be discovered. GENERAL OBJECTIONS 1. Registrant objects to the Requests in their entirety insofar as they seek information that would subject Registrant to unreasonable annoyance, oppression, burden and expense. In making these Responses, Registrant will not respond to any Request which is objectionable, as many of such Requests would require Registrant to initiate an excessively burdensome, unduly oppressive and expensive search. 2. Registrant further objects to the Requests in their entirety insofar as they attempt or purport to impose obligations beyond those imposed or authorized by the Federal Rules of Civil Procedure. 3. Registrant further objects to the Requests in their entirety insofar as they improperly call for the disclosure of information or documents within the attorney-client privilege and/or the attorney work product doctrine. In the event

2 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) that Registrant unintentionally discloses information or documents at any time which are protected by the attorney-client privilege and/or the attorney work product doctrine, such disclosure is inadvertent and without the intent to waive Registrant’s privileges and/or protections applicable thereto. Therefore, in the event that any privileged and/or protected information or documents are unintentionally disclosed or produced at any time, Registrant expressly reserves all objections to any use of such information or documents in this litigation. 4. Registrant further objects to the Requests in their entirety insofar as they improperly call for the disclosure of information or documents that are neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence herein. 5. Registrant further objects to the Requests in their entirety insofar as they are unreasonably overbroad in scope and not limited to either periods of time or subject matter that are even remotely germane to this litigation. 6. Registrant further objects to the Requests in their entirety insofar as they demand that Registrant disclose or produce information or documents, the release of which would be a violation of any individual’s or entity's right of privacy under any other constitutional, statutory, or common law right of privacy of any person or entity. 7. Registrant further objects to the Requests in their entirety insofar as they improperly call for the disclosure or production of financial or employment information or documents protected by the constitutional right of privacy of Registrant, its employees, and/or third parties. 8. Registrant further objects to the Requests in their entirety insofar as they improperly assume facts not in evidence or call for a legal conclusion. 9. Registrant further objects to the Requests in their entirety insofar as they improperly call for speculation on the part of Registrant.

3 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) 10. Registrant further objects to the Requests in their entirety insofar as they attempt or purport to require Registrant to produce confidential information and/or materials unless such disclosure or production is made subject to a court- approved protective order. 11. Registrant expressly reserves the right to amend or supplement these Responses.

RESPONSES TO REQUESTS FOR PRODUCTION REQUEST NO. 1: All documents and things referring or relating to the creation and selection of Registrant’s Trademark, including correspondence with and memoranda between Registrant and any name consultant, design firm, advertising agency, advertising media, suppliers and printers. RESPONSE NO. 1: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 2: All documents and things referring or relating to the adoption and use (including Registrant’s first use in intrastate and interstate commerce) of Registrant’s Trademark, including correspondence with and memoranda between Registrant and any name consultant, design firm, advertising agency, advertising media, suppliers and printers.

4 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) RESPONSE NO. 2: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 3: All search reports and investigation reports prepared by or for Registrant which refer to, relate to, or comment upon Registrant’s Trademark or Petitioner’s Trademark. RESPONSE NO. 3: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 4: All federal and state service mark applications filed by or on behalf of Registrant for Registrant’s Trademark, and all documents referring or relating to any such applications. RESPONSE NO. 4: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further

5 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 5: All documents referring or relating to Registrant’s sale of goods or services under the designation UNICORN TEARS or any variation thereof. RESPONSE NO. 5: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege and is not reasonably calculated to lead to the discovery of admissible evidence. As such, this Request is overly broad, unduly burdensome, and oppressive. REQUEST NO. 6: All documents and things referring or relating to, or comprising any permission given by Registrant to any third party to use a trademark, or trade name which Registrant considered or considers to be similar or identical to Registrant’s Trademark, including all franchise agreements, licenses, and other documents permitting such use, and all documents relating thereto. RESPONSE NO. 6: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product

6 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 7: All documents and things referring or relating to, or comprising any permission received by Registrant from any third party to use a trademark, or trade name which Registrant considered or considers to be similar or identical to Registrant’s Trademark or trade name, including all franchise agreements, licenses, and other documents permitting such use, and all documents relating thereto. RESPONSE NO. 7: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 8: All documents and things pertaining to use by third parties of a service mark, trademark, or trade name including or consisting of the designation UNICORN TEARS. RESPONSE NO. 8: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant

7 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 9: All documents and things referring or relating to or comprising any challenges Registrant has ever made to any third party, and any third party has made to Registrant, concerning the use of any service mark, trademark, or trade name which was considered to conflict with Registrant’s Trademark or any portion thereof. RESPONSE NO. 9: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 10: All documents and things referring or relating to, or comprising any assignment of any trademark rights for Registrant’s Trademark. RESPONSE NO. 10: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request.

8 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) REQUEST NO. 11: All documents and things referring or relating to any court or USPTO action filed by Registrant or filed against Registrant in connection with Registrant’s Trademark. RESPONSE NO. 11: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 12: Specimens of all advertising and promotional documents bearing Registrant’s Trademark, including brochures, catalogues, circulars, leaflets, direct mail pieces, newspaper and magazine advertisements, commercials, telephone book advertisements, price lists, trade association listings, annual reports, and any other material such as labels, tags, packages, containers, decals, stamps, and name plates used by Registrant, its distributors, or other sellers of its products or services. RESPONSE NO. 12: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant

9 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) responds as follows: Registrant will make arrangements to produce the requested specimens. REQUEST NO. 13: Specimens of all types of goods bearing Registrant’s Trademark. RESPONSE NO. 13: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will endeavor to make arrangements to produce the requested specimens. REQUEST NO. 14: All documents identifying the publications and broadcast media in which Registrant has advertised, is advertising, or has planned to advertise any of its products or services bearing or sold under Registrant’s Trademark. RESPONSE NO. 14: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 15: Specimens of each different counter display or other point-of-sale display prepared, printed, or disseminated by or for Registrant in which the designation

10 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) UNICORN TEARS or any variation thereof appears since the alleged date of first use of that designation to date. RESPONSE NO. 15: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will endeavor to make arrangements to produce the requested specimens. REQUEST NO. 16: Copies of all television commercials, radio scripts, and other media advertising not previously requested in which the designation UNICORN TEARS or any variation thereof appears or is mentioned. RESPONSE NO. 16: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 17: All documents referring or relating to or commenting upon Registrant’s advertising or promotional expenditures for any goods or services under the designation UNICORN TEARS or any variation thereof.

11 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143)

RESPONSE NO. 17: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 18: All documents and things relating or referring to the geographic scope of the advertising, distribution and sale of goods or services bearing or under Registrant’s Trademark. RESPONSE NO. 18: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 19: All documents and things relating or referring to, or comprising, Registrant’s advertising expenditures for goods bearing or services sold under Registrant’s Trademark by geographic or distribution regions where the services have been offered or products have been sold.

12 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143)

RESPONSE NO. 19: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 20: All documents referring or relating to, or comprising Registrant’s customer lists, prospective customer lists, and mailing lists for products or services offered and sold under Registrant’s Trademark. RESPONSE NO 20: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 21: All documents referring or relating to or comprising any consumer or market survey, test, or study Registrant has conducted or has caused to be conducted regarding the public’s or the trade’s recognition of or reaction to Registrant’s Trademark.

13 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) RESPONSE NO. 21: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 22: All documents referring or relating to or comprising any consumer or market survey, test, or study Registrant has conducted or has caused to be conducted regarding the public’s or the trade’s recognition of or reaction to Petitioner’s Trademark. RESPONSE NO. 22: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 23: All documents referring or relating to, or comprising any consumer or market survey, test, or study Registrant has conducted or has caused to be conducted regarding any confusion among the public, retailers, or the trade resulting from the use of Registrant’s Trademark.

14 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143)

RESPONSE NO. 23: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 24: All documents referring or relating to, or comprising Registrant’s first notice of Petitioner’s use and application and registration of Petitioner’s Trademark. RESPONSE NO. 24: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 25: All documents referring or relating to, or comprising any communication or notice to Registrant concerning the possibility that Registrant’s use of Registrant’s Trademark, or any portion or variation thereof, might or might not result in confusion or mistake in any industry or among the public, particularly in view of Petitioner’s use of Registrant’s Trademark.

15 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143)

RESPONSE NO. 25: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 26: All documents regarding the types and classes of consumers to whom, and the markets and channels of trade in the United States through which Registrant markets or sells goods and services identified by Registrant’s Trademark, including without limitation all documents indicating the channels of commerce through which Registrant offers and sells its services or goods to consumers, and including without limitation all documents indicating the manner in which orders are solicited for Registrant’s goods and services marketed or sold under Registrant’s Trademark or by any division, subsidiary, or related company. RESPONSE NO. 26: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control.

16 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) REQUEST NO. 27: All documents and things referring or relating to any modification by Registrant of Registrant’s Trademark or trade name since the first use thereof, including all documents relating to the reason such modification was made. RESPONSE NO. 27: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 28: All documents and things referring or relating to, or comprising statements, inquiries, comments, or other communications by or from Registrant’s customers, distributors, suppliers, or others, relating to the similarity of Registrant’s Trademark to Petitioner’s Trademark or evidencing any confusion, suspicion, belief, or doubt on the part of said third-parties as to the relationship between either or both of the Petitioner and Registrant or their respective products or services sold under Registrant’s Trademark or Petitioner’s Trademark, including any misdirected complaints or inquiries. RESPONSE NO. 28: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant

17 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 29: All documents referring or relating to or comprising any communication, oral or written, received by Registrant from any person which suggests, implies, or infers any connection or association with Petitioner or which inquires as to whether there is or may be such a connection or association. RESPONSE NO. 29: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request. REQUEST NO. 30: All documents referring or relating to or evidencing or comprising any instance or occurrence of actual confusion on the part of any person due to Petitioner’s and Registrant’s use of Registrant’s Trademark. RESPONSE NO. 30: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: After due and diligent search and reasonable inquiry, Registrant can identify no documents responsive to this Request.

18 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) REQUEST NO. 31: All documents referring or relating to or comprising any opinion from counsel, whether or not such counsel was employed by Registrant, concerning Registrant’s rights to Registrant’s Trademark, including without limitation all documents identifying the date of any such opinion and the attorney rendering the opinion, or discussing any action Registrant may have taken, or considered taking, in reliance upon said opinion. RESPONSE NO. 31: Objection; this Request seeks to invade the attorney-client privilege and the attorney work product privilege. REQUEST NO. 32: All documents referring or relating to or commenting upon Registrant’s development, manufacture, offering for sale, sale, and distribution of any goods or services with which the designation UNICORN TEARS or any variation thereof has been used. RESPONSE NO. 32: Registrant objects to this Request insofar as it seeks to discover trade secrets and other proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Registrant objects to this Request in that it seeks to discover confidential business records of Registrant and is not reasonably calculated to lead to the discovery of admissible evidence. As such, this Request is overly broad, unduly burdensome, and oppressive. REQUEST NO. 33: All documents referring or relating to, or comprising, any analyses, studies, or reports relating to the sales or prospective sales of Registrant’s goods or services

19 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) under Registrant’s Trademark, including but not limited to business plans, marketing plans, development plans, financial plans, and budgetary plans. RESPONSE NO. 33: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. REQUEST NO. 34: All documents referring or relating to, or comprising, any plan Registrant has to expand the type of goods or services it offers for sale under Registrant’s Trademark. RESPONSE NO. 34: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 35: All documents referring or relating to or comprising or commenting on Registrant’s incorporation, corporate name reservations, qualifications to do business, trade name registrations and assumed name recordals for Registrant and any of its divisions, subsidiaries, or related businesses, referring or relating to the use of Registrant’s trade name.

20 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) RESPONSE NO. 35: Registrant objects to this Request in that it is so vague, ambiguous and unintelligible as to leave Registrant unable to determine what documents Petitioner seeks to discover. If Petitioner seeks to discover all incorporation and name reservation documents of Registrant which could potentially involve products bearing the UNICORN TEARS mark, then this Request is overly broad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence. REQUEST NO. 36: All documents and things referring or relating to the proportion of Registrant’s products or services marketed and sold under Registrant’s Trademark. RESPONSE NO. 36: Registrant objects to this Request insofar as it seeks to discover trade secrets and other confidential, proprietary information of Registrant. Registrant further objects insofar as this Request calls for documents which are protected from disclosure by the attorney-client privilege and/or the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant responds as follows: Registrant will produce all non-privileged responsive documents in its possession, custody and control. REQUEST NO. 37: All documents regarding Registrant’s policy with respect to retention of documents, including business records. RESPONSE NO. 37: Registrant objects in that this Request seeks to discover employee handbooks and other confidential, proprietary information of Registrant which is neither relevant to the subject matter of this action nor reasonably calculated to

21 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) lead to the discovery of admissible evidence. As such, this Request is also unduly burdensome and oppressive. REQUEST NO. 38: All documents referring or relating to or evidencing or comprising any inquiry, investigation, or survey conducted by or on behalf of Registrant regarding any issues involved in this opposition [sic] proceeding. RESPONSE NO. 38: Registrant objects to this Request in that it seeks to invade the attorney- client privilege and the attorney work product privilege. REQUEST NO. 39: All statements or opinions of any expert retained by Registrant or any person acting for or on behalf of Registrant regarding any of the issues involved in this opposition [sic] proceeding. RESPONSE NO. 39: Registrant objects to this Request insofar as it seeks to invade the attorney- client privilege and the attorney work product privilege. Subject to and without waiving the foregoing objections, Registrant has to date retained no experts in connection with this cancellation proceeding. REQUEST NO. 40: All documents, other than those produced in response to any of the foregoing requests, identified by Registrant in its responses to Petitioner’s First Set of Interrogatories. RESPONSE NO. 40: Subject to any and all objections asserted in connection with the requests herein and the Interrogatories propounded by Petitioner, Registrant will produce the requested documents.

22 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) REQUEST NO. 41: All documents, other than those produced in response to any of the foregoing requests, upon which Registrant intends to rely in connection with this proceeding. RESPONSE NO. 41: Except insofar as such documents constitute attorney work product, Registrant will produce the requested documents.

Dated: March 20, 2019 GOODMAN MOONEY LLP

Eric Goodman 3420 Bristol Street, Sixth Floor Costa Mesa, CA 92626 T: 949.622.0020 F: 949.622.0024 [email protected] Attorneys for Registrant Too Faced Cosmetics, LLC

23 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) CERTIFICATE OF SERVICE

I hereby certify that I served a copy of the foregoing REGISTRANT’S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO PETITIONER upon Petitioner’s counsel on March 20, 2019 by emailing the document to the following address:

David H. Faux 1180 Avenue of the Americas, 8th Floor New York, NY 10036 [email protected]

Eric Goodman

24 REGISTRANT’S RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY PETITIONER (92067143) Holographic Lip Gloss: Magic Crystals Lip Topper - Too Faced Page 1 of 8

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$19.00 $17.10 Magic Crystal Lip Topper

(32 reviews)

Average Rating

I LOVE THIS PRODUCT, IT'S EXTREMELY BEAUTIFUL ON LIPS, THE TEXTURE IS JUST PERFECT.

BETTY, FRANCE

Pros

No Pros

Cons

No Cons

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Sort by Newest Age: 19-24 (4), 35-44 (4), 25-34 (3)

Eye Color: Brown (13), Blue (9), Green (5)

Skin Tone: Light (13), Fair (9)

Skin Type: Combination (11), Dry (5), Normal (5), Sensitive (4), Oily (3)

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WRITE A REVIEW

Love love love!!!!!!!!!!!!ᪿᫀᪿᫀᪿᫀ᫁᫁᫁

CharliBeth13, Alberta

Got the Unicorn Tears today and fell in love instantly!!!!!!! Its gonna be my new favorite lip topper/ lip gloss!!!!! SO EXCITED!!!!⟧⟨⟩⟪⟫

Eye Color: Grey Skin Tone: Light Skin Type: Normal

WAS THIS REVIEW HELPFUL? YES / NO

Magic Crystal Lip Topper

Jab1219, Los Alamos, NM

I absolutely love this product! It moisturizes and gives a unique color

Eye Color: Blue Skin Tone: Light Skin Type: Dry

WAS THIS REVIEW HELPFUL? YES / NO

Absolutely gorgeous

pammielouwho, Nashville, TN

This is great on its own for a low(er) key look or on top of other lip color for a pop!

Eye Color: Green Skin Type: Sensitive

WAS THIS REVIEW HELPFUL? YES / NO

Mermaid Tears Is Amazing!

MermaidTearsEnthusiast, MN

I bought these (the Mermaid Tears and Fairy Tears) just for fun and I really LOVED them (especially the MERMAID TEARS)! The formula of these is great (the fairy tears is a bit watery, but the mermaid tears is just right). The Mermaid Tears is now my go-to-gloss. It isn't ostentatious, and stays glossy through eating and all day (especially with the Lip Insurance Lip Primer). Don't let the blue coloring to the Mermaid Tears fool you, I can make it blue with more coats, but with less coats it is just a fantastic gloss! I like to wear my Fairy Tears just over lipsticks and that works fine, I guess, but my Mermaid Tears can be used alone AND over gloss! Overall, if you are thinking about buying any of these, the mermaid tear is the way to go!

Eye Color: Hazel Skin Tone: Light Skin Type: Combination

WAS THIS REVIEW HELPFUL? YES / NO

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Enchanting Shine

MojoMaggie, Ar

ᙠᙡ️٪٨٩ This treasure gets an A+ it's larger than I thought it be and it truly works great alone or with any shade of lipstick. Oodles of compliments .

Eye Color: Blue Skin Tone: Light Skin Type: Normal

Images shared by MojoMaggie Magic crystal lip topper

WAS THIS REVIEW HELPFUL? YES / NO

All Time Favourite Lip Topper

dangerdame, California

I love love love this product!! I was afraid it'd be too light with the dusty reddish rose colors I usually wear but it's so perfect to dab in the center of my lips for just a subtle bit of shine and shimmer. I lost my tube last month and immediately ordered a replacement so I wouldn't have to be without it < 3

Eye Color: Blue Skin Tone: Fair Skin Type: Dry

WAS THIS REVIEW HELPFUL? YES / NO

Amazing and versatile

Michaela, Gaithersburg, Maryland

I love how this formula goes on smooth and can be used as a lip topper to add a little extra sparkle to any lipstick or on its own. I use it all the time to give my look a little something extra.

Eye Color: Blue Skin Tone: Light Skin Type: Oily

WAS THIS REVIEW HELPFUL? YES / NO

Love love love it!

Tania, Virginia

This topper looks great alone or on top of your favorite gloss or lipstick

Eye Color:

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Brown Skin Tone: Light Skin Type: Combination

WAS THIS REVIEW HELPFUL? YES / NO

Not a fan!

Tania, Virginia

I have this whole collection and this is the only one that I do not like. The color is AWFUL! It's a Greyson green color and very dark.

Eye Color: Brown Skin Tone: Light Skin Type: Combination

WAS THIS REVIEW HELPFUL? YES / NO

love these products!

Alyssa, PA

I have Angel, Fairy, and Mermaid tears. They're all great and really comfortable to wear! I mostly use them as lip gloss alone, but occasionally use them as toppers. I naturally have a dusky pink colored lip and light olive toned skin. Angel tears looks like a pearl sheen and brightens the pink in my lips just a hint, while Fairy tears gives a brighter pink color with gold sheen. Both are awesome for a more subtle look. Mermaid tears is a little more intense and I have to be careful to apply it evenly. When evenly applied, it gives me more of a mauve colored lip with a purple and teal sheen (otherwise it's a bit patchy and makes me look awkwardly yellow). I haven't played around with the Mermaid tears as much, but it's a cool color for when I want to do more with my make-up.

Eye Color: Brown Skin Tone: Olive

WAS THIS REVIEW HELPFUL? YES / NO

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UNICORN HORN HIGHLIGHTING STIC | MYSTICAL EFFECTS HIGHLIGHTING STICK

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L O A D M O R E

Eye Color: Hazel Skin Tone: Light Skin Type: Dry WAS THIS REVIEW HELPFUL? YES / NO

Highlighter Jolene, Michigan Cute and fun.. love the sheen and bit of sparkle

Eye Color: Hazel Skin Tone: Light Skin Type: Dry WAS THIS REVIEW HELPFUL? YES / NO

Amazing

Alex, Palm Harbor, FL I own all the pieces of the Life's A Festival collection. Like the others, this doesn't disappoint. It adds that perfect amount of shimmer.

Eye Color: Blue Skin Tone: Light Skin Type: Normal WAS THIS REVIEW HELPFUL? YES / NO

I absolutely LOVE this highlighter! Serena, Seattle This product is so amazing! It applys and blends out so easily. It also smells good! I was looking for a purple highlighter and then this just happened to pop up on sale. If u love the holo look this is a definite must try.

Eye Color: Brown Skin Tone: Olive Skin Type: Oily WAS THIS REVIEW HELPFUL? YES / NO

Lovely Margarida, Tucson AZ I never used this before and I love it perfect amount of shine

Eye Color: Brown Skin Tone: Medium Skin Type: Normal

TF000010 https://www.toofaced.com/shop/face/highlighters/unicorn-horn-highlighting-stic/Unicorn… 3/25/2019 Highlight Stick Makeup - Too Faced Page 3 of 3

Eye Color: Blue Skin Tone: Fair Skin Type: Dry WAS THIS REVIEW HELPFUL? YES / NO

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TF000011 https://www.toofaced.com/shop/face/highlighters/unicorn-horn-highlighting-stic/Unicorn… 3/25/2019 Bronzer & Highlighter Duo: Unicorn Holographic Bronzer - Too Faced Page 1 of 4

Take Quiz for 20% off Foundation! Quiz Me United States S I G N I N

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SHOP FACE BRONZERS UNICORN TEARS BRONZER

TF000012 https://www.toofaced.com/shop/face/bronzers/unicorn-holographic-bronzer/70241.html?c… 3/25/2019 Bronzer & Highlighter Duo: Unicorn Holographic Bronzer - Too Faced Page 2 of 4

L O A D M O R E

Eye Color: Blue Skin Tone: Light Skin Type: Sensitive Images shared by Monika

WAS THIS REVIEW HELPFUL? YES / NO

AWESOME AND AMAZING

Maria, Ohio I'm obsessed with this product! This really must be infused with unicorn magic! The perfect bronzer with just a hint of shimmer!!

Eye Color: Hazel Skin Tone: Olive Skin Type: Combination Images shared by Maria

WAS THIS REVIEW HELPFUL? YES / NO

In love! Wendi, Midland, TX This bronzer is fantastic! It blends beautifully and the highlighter looks gorgeous! Another part of this collection that is now a daily thing for me!

Eye Color: Hazel Skin Tone: Fair Skin Type: Combination WAS THIS REVIEW HELPFUL? YES / NO

AMAZING ⟧⟨⟩⟪⟫ La, Hamilton,NJ Absolutely love this bronzer so much I order 2 more! It it blends amazing & my clients loved it as well ⟧⟧ᨙὈ⟨⟨⟪⟪ᨚ⟫⟫Ὁ᨜᨝᨞

TF000013 https://www.toofaced.com/shop/face/bronzers/unicorn-holographic-bronzer/70241.html?c… 3/25/2019 Bronzer & Highlighter Duo: Unicorn Holographic Bronzer - Too Faced Page 3 of 4

Great Leah, Kentucky This is such an amazing product. It is so blendable and it is really pigmented, while still not making you look orange. I would highly recommend it!

Eye Color: Grey Skin Tone: Fair Skin Type: Sensitive WAS THIS REVIEW HELPFUL? YES / NO

pretty good

peyton, Nashville This is a really nice product but it is way to dark for my light skin tone. Any one with a dark skin tone could look so pretty!!

Skin Tone: Fair WAS THIS REVIEW HELPFUL? YES / NO

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TF000014 https://www.toofaced.com/shop/face/bronzers/unicorn-holographic-bronzer/70241.html?c… 3/25/2019 Bronzer & Highlighter Duo: Unicorn Holographic Bronzer - Too Faced Page 4 of 4

@ashleyswagnerxo in Unicorn Tears Bronzer

TF000015 https://www.toofaced.com/shop/face/bronzers/unicorn-holographic-bronzer/70241.html?c… 3/25/2019 Reg. No. 5,234,883 Too Faced Cosmetics, LLC (DELAWARE LIMITED LIABILITY COMPANY) 18231 McDurmott West Registered Jul. 04, 2017 Irvine, CA 92614 Int. Cl.: 3 CLASS 3: Cosmetics and cosmetic preparations FIRST USE 12-1-2015; IN COMMERCE 12-1-2015 Trademark THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY Principal Register PARTICULAR FONT STYLE, SIZE OR COLOR SER. NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY

TF000016 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.

Requirements in the First Ten Years* What and When to File:

Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File:

You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings*

The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee.

Page: 2 of 2 / RN # 5234883 TF000017 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018) Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 87638900 Filing Date: 10/09/2017

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered TEAS Plus YES MARK INFORMATION

*MARK UNICORN TEARS

*STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

LITERAL ELEMENT UNICORN TEARS The mark consists of standard characters, without claim to any *MARK STATEMENT particular font style, size, or color. REGISTER Principal APPLICANT INFORMATION

*OWNER OF MARK Glow Concept Inc.

DBA/AKA/TA/FORMERLY DBA Winky Lux

INTERNAL ADDRESS #202

*STREET 77 Ludlow

*CITY New York

*STATE New York (Required for U.S. applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 10002 (Required for U.S. applicants) LEGAL ENTITY INFORMATION

*TYPE CORPORATION

* STATE/COUNTRY OF INCORPORATION New York GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL CLASS 003

*IDENTIFICATION Lip gloss; Lip glosses

*FILING BASIS SECTION 1(a)

TF000018 FIRST USE ANYWHERE DATE At least as early as 07/00/2015

FIRST USE IN COMMERCE DATE At least as early as 07/00/2015

SPECIMEN \\TICRS\EXPORT17\IMAGEOUT FILE NAME(S) 17\876\389\87638900\xml1\ FTK0003.JPG

screenshot of owner's website (under assumed name of Winky Lux certified in New York State) with use of mark (i.e., UNICORN TEARS) in direct connection to Class 03 goods SPECIMEN DESCRIPTION (i.e., lip gloss) with persistent shopping cart in upper right- hand corner to effect consumer's purchase of goods from owner. ADDITIONAL STATEMENTS INFORMATION

*TRANSLATION (if applicable)

*TRANSLITERATION (if applicable)

*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAME/LIKENESS) (if applicable)

*CONCURRENT USE CLAIM (if applicable) ATTORNEY INFORMATION

NAME David H. Faux

ATTORNEY DOCKET NUMBER CL19101

FIRM NAME Law Office of David H. Faux, P.C.

INTERNAL ADDRESS 8th Floor

STREET 1180 Avenue of the Americas

CITY New York

STATE New York

COUNTRY United States

ZIP/POSTAL CODE 10036

PHONE 917-391-9468

FAX 646-664-1506

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes CORRESPONDENCE INFORMATION

*NAME David H. Faux

FIRM NAME Law Office of David H. Faux, P.C.

INTERNAL ADDRESS 8th Floor

*STREET 1180 Avenue of the Americas

*CITY New York

*STATE New York (Required for U.S. addresses)

TF000019 *COUNTRY United States

*ZIP/POSTAL CODE 10036

PHONE 917-391-9468

FAX 646-664-1506

*EMAIL ADDRESS [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION

APPLICATION FILING OPTION TEAS Plus

NUMBER OF CLASSES 1

FEE PER CLASS 225

*TOTAL FEE PAID 225 SIGNATURE INFORMATION

* SIGNATURE /David H. Faux/

* SIGNATORY'S NAME David H Faux

* SIGNATORY'S POSITION Attorney of Record, NY

SIGNATORY'S PHONE NUMBER 917-391-9468

* DATE SIGNED 10/09/2017

TF000020 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 87638900 Filing Date: 10/09/2017 To the Commissioner for Trademarks:

MARK: UNICORN TEARS (Standard Characters, see mark) The mark in your application is UNICORN TEARS.

For specific filing basis information for each item, you must view the display within the Input Table. International Class 003: Lip gloss; Lip glosses

TF000021 New York, New York 10036 917-391-9468(phone) 646-664-1506(fax) [email protected] (authorized) E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or the applicant's attorney, or the applicant's domestic representative at the e-mail address provided in this application. I understand that a valid e-mail address must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Plus status and a requirement to submit an additional processing fee of $125 per international class of goods/services.

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

Basis: If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):

AND/OR If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e):

TF000022 TF000023 TF000024 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION

WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.

Requirements in the First Ten Years* What and When to File:

Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.

Requirements in Successive Ten-Year Periods* What and When to File:

You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*

Grace Period Filings*

The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee.

Page: 2 of 2 / RN # 5234883

TF000025 From: [email protected] Sent: Tuesday, March 21, 2017 00:40 AM To: [email protected] Subject: Official USPTO Notice of Publication Confirmation: U.S. Trademark SN 86959283: UNICORN TEARS: Docket/Reference No. TOO01-2300

TRADEMARK OFFICIAL GAZETTE PUBLICATION CONFIRMATION

U.S. Serial Number: 86959283 Mark: UNICORN TEARS International Class(es): 003 Owner: Too Faced Cosmetics, LLC Docket/Reference Number: TOO01-2300

The mark identified above has been published in the Trademark Official Gazette (TMOG) on Mar 21, 2017.

To Review the Mark in the TMOG:

Click on the following link or paste the URL into an internet browser: https://tmog.uspto.gov/#issueDate=2017-03-21&serialNumber=86959283

On the publication date or shortly thereafter, the applicant should carefully review the information that appears in the TMOG for accuracy. If any information is incorrect due to USPTO error, the applicant should immediately email the requested correction to [email protected]. For applicant corrections or amendments after publication, please file a post publication amendment using the form available at http://teasroa.uspto.gov/ppa/. For general information about this notice, please contact the Trademark Assistance Center at 1-800-786-9199.

Significance of Publication for Opposition:

* Any party who believes it will be damaged by the registration of the mark may file a notice of opposition (or extension of time therefor) with the Trademark Trial and Appeal Board. If no party files an opposition or extension request within thirty (30) days after the publication date, then eleven (11) weeks after the publication date a certificate of registration should issue.

To check the status of the application, go to http://tsdr.uspto.gov/#caseNumber=86959283&caseType=SERIAL_NO&searchType=statusSearch or contact the Trademark Assistance Center at 1-800-786-9199. Please check the status of the application at least every three (3) months after the application filing date.

To view this notice and other documents for this application on-line, go to http://tsdr.uspto.gov/#caseNumber=86959283&caseType=SERIAL_NO&searchType=documentSearch. NOTE: This notice will only become available on-line the next business day after receipt of this e-mail.

TF000026 UNITED STATES PATENT AND TRADEMARK OFFICE

Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451 www.uspto.gov Mar 1, 2017

NOTICE OF PUBLICATION

1. Serial No.: 2. Mark: 86-959,283 UNICORN TEARS (STANDARD CHARACTER MARK)

3. International Class(es): 3

4. Publication Date: 5. Applicant: Mar 21, 2017 Too Faced Cosmetics, LLC

The mark of the application identified appears to be entitled to registration. The mark will, in accordance with Section 12(a) of the Trademark Act of 1946, as amended, be published in the Official Gazette on the date indicated above for the purpose of opposition by any person who believes he will be damaged by the registration of the mark. If no opposition is filed within the time specified by Section 13(a) of the Statute or by rules 2.101 or 2.102 of the Trademark Rules, the Commissioner of Patents and Trademarks may issue a certificate of registration.

Copies of the trademark portion of the Official Gazette containing the publication of the mark may be obtained from: The Superintendent of Documents U.S. Government Printing Office PO Box 371954 Pittsburgh, PA 15250-7954 Phone: 202-512-1800

By direction of the Commissioner.

Email Address(es):

[email protected]

TF000027 From: [email protected] Sent: Wednesday, March 1, 2017 04:08 AM To: [email protected] Subject: Official USPTO Notification of Notice of Publication: U.S. Trademark SN 86959283: UNICORN TEARS: Docket/Reference No. TOO01-2300

NOTIFICATION OF "NOTICE OF PUBLICATION"

Your trademark application (Serial No. 86959283) is scheduled to publish in the Official Gazette on Mar 21, 2017. To preview the Notice of Publication, go to http://tdr.uspto.gov/search.action?sn=86959283. If you have difficulty accessing the Notice of Publication, contact [email protected].

PLEASE NOTE: 1. The Notice of Publication may not be immediately available but will be viewable within 24 hours of this e-mail notification. 2. You will receive a second e-mail on the actual "Publication Date," which will include a link to the issue of the Official Gazette in which the mark has published.

Do NOT hit "Reply" to this e-mail notification. If you have any questions about the content of the Notice of Publication, contact [email protected].

TF000028 Trademark Snap Shot Publication Stylesheet (Table presents the data on Publication Approval)

OVERVIEW

SERIAL NUMBER 86959283 FILING DATE 03/31/2016

REG NUMBER 0000000 REG DATE N/A

INTL REG # N/A INTL REG DATE N/A

TM ATTORNEY DUBOIS, MICHELLE E L.O. ASSIGNED 107

PUB INFORMATION

RUN DATE 02/07/2017

PUB DATE N/A

STATUS 680-APPROVED FOR PUBLICATON

STATUS DATE 02/06/2017

LITERAL MARK ELEMENT UNICORN TEARS

DATE ABANDONED N/A DATE CANCELLED N/A

SECTION 2F NO SECTION 2F IN PART NO

SECTION 8 NO SECTION 8 IN PART NO

SECTION 15 NO REPUB 12C N/A

RENEWAL FILED NO RENEWAL DATE N/A

DATE AMEND REG N/A

FILING BASIS

FILED BASIS CURRENT BASIS AMENDED BASIS

1 (a) YES 1 (a) YES 1 (a) NO

1 (b) NO 1 (b) NO 1 (b) NO

44D NO 44D NO 44D NO

44E NO 44E NO 44E NO

66A NO 66A NO

NO BASIS NO NO BASIS NO

MARK DATA

STANDARD CHARACTER MARK YES

LITERAL MARK ELEMENT UNICORN TEARS

MARK DRAWING CODE 4-STANDARD CHARACTER MARK

COLOR DRAWING FLAG NO

CURRENT OWNER INFORMATION

PARTY TYPE 10-ORIGINAL APPLICANT

NAME Too Faced Cosmetics, LLC

ADDRESS 18231 McDurmott West Irvine, CA 92614

ENTITY 16-LTD LIAB CO

TF000029 CITIZENSHIP Delaware

GOODS AND SERVICES

INTERNATIONAL CLASS 003

DESCRIPTION TEXT Cosmetics and cosmetic preparations

GOODS AND SERVICES CLASSIFICATION

INTERNATIONAL 003 FIRST USE DATE 12/01/2015 FIRST USE IN 12/01/2015 CLASS STATUS 6-ACTIVE CLASS COMMERCE DATE

MISCELLANEOUS INFORMATION/STATEMENTS

CHANGE IN REGISTRATION NO

PROSECUTION HISTORY

DATE ENT CD ENT TYPE DESCRIPTION ENT NUM

02/06/2017 CNSA O APPROVED FOR PUB - PRINCIPAL REGISTER 013

01/17/2017 TEME I TEAS/EMAIL CORRESPONDENCE ENTERED 012

01/17/2017 CRFA I CORRESPONDENCE RECEIVED IN LAW OFFICE 011

01/17/2017 TROA I TEAS RESPONSE TO OFFICE ACTION RECEIVED 010

01/17/2017 TROA I TEAS RESPONSE TO OFFICE ACTION RECEIVED 009

12/21/2016 ASCK I ASSIGNMENT OF OWNERSHIP NOT UPDATED AUTOMATICALLY 008

11/23/2016 ASCK I ASSIGNMENT OF OWNERSHIP NOT UPDATED AUTOMATICALLY 007

07/14/2016 GNRN O NOTIFICATION OF NON-FINAL ACTION E-MAILED 006

07/14/2016 GNRT F NON-FINAL ACTION E-MAILED 005

07/14/2016 CNRT R NON-FINAL ACTION WRITTEN 004

07/11/2016 DOCK D ASSIGNED TO EXAMINER 003

04/05/2016 NWOS I NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM 002

04/04/2016 NWAP I NEW APPLICATION ENTERED IN TRAM 001

CURRENT CORRESPONDENCE INFORMATION

ATTORNEY Amanda J. Mooney

CORRESPONDENCE ADDRESS AMANDA J. MOONEY GOODMAN MOONEY, LLP 3420 BRISTOL STREET SIXTH FLOOR COSTA MESA, CA 92626

DOMESTIC REPRESENTATIVE NONE

TF000030 TF000031 Trademark Snap Shot Amendment & Mail Processing Stylesheet (Table presents the data on Amendment & Mail Processing Complete)

OVERVIEW

SERIAL NUMBER 86959283 FILING DATE 03/31/2016

REG NUMBER 0000000 REG DATE N/A

INTL REG # N/A INTL REG DATE N/A

TM ATTORNEY DUBOIS, MICHELLE E L.O. ASSIGNED 107

PUB INFORMATION

RUN DATE 01/18/2017

PUB DATE N/A

STATUS 661-RESPONSE AFTER NON-FINAL-ACTION-ENTERED

STATUS DATE 01/17/2017

LITERAL MARK ELEMENT UNICORN TEARS

DATE ABANDONED N/A DATE CANCELLED N/A

SECTION 2F NO SECTION 2F IN PART NO

SECTION 8 NO SECTION 8 IN PART NO

SECTION 15 NO REPUB 12C N/A

RENEWAL FILED NO RENEWAL DATE N/A

DATE AMEND REG N/A

FILING BASIS

FILED BASIS CURRENT BASIS AMENDED BASIS

1 (a) YES 1 (a) YES 1 (a) NO

1 (b) NO 1 (b) NO 1 (b) NO

44D NO 44D NO 44D NO

44E NO 44E NO 44E NO

66A NO 66A NO

NO BASIS NO NO BASIS NO

MARK DATA

STANDARD CHARACTER MARK YES

LITERAL MARK ELEMENT UNICORN TEARS

MARK DRAWING CODE 4-STANDARD CHARACTER MARK

COLOR DRAWING FLAG NO

CURRENT OWNER INFORMATION

PARTY TYPE 10-ORIGINAL APPLICANT

NAME Too Faced Cosmetics, LLC

ADDRESS 18231 McDurmott West Irvine, CA 92614

ENTITY 16-LTD LIAB CO

TF000032 CITIZENSHIP Delaware

GOODS AND SERVICES

INTERNATIONAL CLASS 003

DESCRIPTION TEXT Cosmetics and cosmetic preparations

GOODS AND SERVICES CLASSIFICATION

INTERNATIONAL 003 FIRST USE DATE 12/01/2015 FIRST USE IN 12/01/2015 CLASS STATUS 6-ACTIVE CLASS COMMERCE DATE

MISCELLANEOUS INFORMATION/STATEMENTS

CHANGE IN REGISTRATION NO

PROSECUTION HISTORY

DATE ENT CD ENT TYPE DESCRIPTION ENT NUM

01/17/2017 TEME I TEAS/EMAIL CORRESPONDENCE ENTERED 012

01/17/2017 CRFA I CORRESPONDENCE RECEIVED IN LAW OFFICE 011

01/17/2017 TROA I TEAS RESPONSE TO OFFICE ACTION RECEIVED 010

01/17/2017 TROA I TEAS RESPONSE TO OFFICE ACTION RECEIVED 009

12/21/2016 ASCK I ASSIGNMENT OF OWNERSHIP NOT UPDATED AUTOMATICALLY 008

11/23/2016 ASCK I ASSIGNMENT OF OWNERSHIP NOT UPDATED AUTOMATICALLY 007

07/14/2016 GNRN O NOTIFICATION OF NON-FINAL ACTION E-MAILED 006

07/14/2016 GNRT F NON-FINAL ACTION E-MAILED 005

07/14/2016 CNRT R NON-FINAL ACTION WRITTEN 004

07/11/2016 DOCK D ASSIGNED TO EXAMINER 003

04/05/2016 NWOS I NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM 002

04/04/2016 NWAP I NEW APPLICATION ENTERED IN TRAM 001

CURRENT CORRESPONDENCE INFORMATION

ATTORNEY Amanda J. Mooney

CORRESPONDENCE ADDRESS AMANDA J. MOONEY GOODMAN MOONEY, LLP 3420 BRISTOL STREET SIXTH FLOOR COSTA MESA, CA 92626

DOMESTIC REPRESENTATIVE NONE

TF000033 TF000034 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) OMB No. 0651-0050 (Exp 07/31/2017) Response to Office Action

The table below presents the data as entered.

Input Field Entered SERIAL NUMBER 86959283 LAW OFFICE ASSIGNED LAW OFFICE 107 MARK SECTION

MARK https://tmng-al.uspto.gov/resting2/api/img/86959283/large

LITERAL ELEMENT UNICORN TEARS

STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES The mark consists of standard characters, without claim to any particular font style, MARK STATEMENT size or color. EVIDENCE SECTION

EVIDENCE \\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0002.JPG FILE NAME(S) \\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0003.JPG

\\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0004.JPG

\\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0005.JPG \\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0006.JPG

\\TICRS\EXPORT17\IMAGEOUT 17\869\592\86959283\xml2\ ROA0007.JPG six screen shots of mark's use in commerce to function as a source identifier. These DESCRIPTION OF EVIDENCE FILE exhibits were inadvertently omitted from the substantive response to office action just filed. SIGNATURE SECTION

RESPONSE SIGNATURE /Eric Goodman/

SIGNATORY'S NAME Eric Goodman

SIGNATORY'S POSITION Attorney of Record, Member of California Bar

SIGNATORY'S PHONE NUMBER 9496220020

DATE SIGNED 01/17/2017

AUTHORIZED SIGNATORY YES FILING INFORMATION SECTION

SUBMIT DATE Tue Jan 17 12:17:13 EST 2017 USPTO/ROA-XXX.XX.XX.XXX-2 0170117121713458607-86959 283-5809c166f0102510c3a01 TEAS STAMP 6435cd46f9efb730f6a029979 929a9314abeb53204e-N/A-N/

TF000035 A-20170117120734663632

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) OMB No. 0651-0050 (Exp 07/31/2017)

Response to Office Action To the Commissioner for Trademarks:

Application serial no. 86959283 UNICORN TEARS(Standard Characters, see https://tmng-al.uspto.gov/resting2/api/img/86959283/large) has been amended as follows:

EVIDENCE Evidence in the nature of six screen shots of mark's use in commerce to function as a source identifier. These exhibits were inadvertently omitted from the substantive response to office action just filed. has been attached. Evidence-1 Evidence-2 Evidence-3 Evidence-4 Evidence-5 Evidence-6

SIGNATURE(S) Response Signature Signature: /Eric Goodman/ Date: 01/17/2017 Signatory's Name: Eric Goodman Signatory's Position: Attorney of Record, Member of California Bar

Signatory's Phone Number: 9496220020

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the owner/holder in this matter: (1) the owner/holder has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the owner's/holder's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

Serial Number: 86959283 Internet Transmission Date: Tue Jan 17 12:17:13 EST 2017 TEAS Stamp: USPTO/ROA-XXX.XX.XX.XXX-2017011712171345 8607-86959283-5809c166f0102510c3a016435c d46f9efb730f6a029979929a9314abeb53204e-N /A-N/A-20170117120734663632

TF000036 TF000037 TF000038 TF000039 TF000040 TF000041 TF000042 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) OMB No. 0651-0050 (Exp 07/31/2017) Response to Office Action

The table below presents the data as entered.

Input Field Entered SERIAL 86959283 NUMBER LAW OFFICE LAW OFFICE 107 ASSIGNED MARK SECTION

MARK https://tmng-al.uspto.gov/resting2/api/img/86959283/large

LITERAL ELEMENT UNICORN TEARS

STANDARD YES CHARACTERS

USPTO- GENERATED YES IMAGE

MARK STATEMENT The mark consists of standard characters, without claim to any particular font style, size or color. EVIDENCE SECTION

EVIDENCE FILE NAME(S)

ORIGINAL PDF evi_1729093222-20170117114706827558_._2017-01-15_ROA_UNICORN_TEARS__SN86959283__TOO01-2300.pdf FILE

CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\869\592\86959283\xml1\ROA0002.JPG (3 pages)

\\TICRS\EXPORT17\IMAGEOUT17\869\592\86959283\xml1\ROA0003.JPG

\\TICRS\EXPORT17\IMAGEOUT17\869\592\86959283\xml1\ROA0004.JPG

DESCRIPTION OF legal arguments in response to office action EVIDENCE FILE SIGNATURE SECTION

RESPONSE /Eric Goodman/ SIGNATURE

SIGNATORY'S Eric Goodman NAME

SIGNATORY'S Attorney of Record, Member of California Bar POSITION

SIGNATORY'S 9496220020 PHONE NUMBER

DATE SIGNED 01/17/2017

AUTHORIZED YES SIGNATORY FILING INFORMATION SECTION

SUBMIT DATE Tue Jan 17 11:59:26 EST 2017

TF000043 USPTO/ROA-XXX.XX.XX.XXX-2 0170117115926092403-86959 283-580e18e4231601ee8f64e TEAS STAMP 7db6eb5f3d8f59558fd76bff1 4a791b6eb40c1c2ab85-N/A-N /A-20170117114706827558

Response to Office Action To the Commissioner for Trademarks:

Application serial no. 86959283 UNICORN TEARS(Standard Characters, see https://tmng-al.uspto.gov/resting2/api/img/86959283/large) has been amended as follows:

EVIDENCE Evidence in the nature of legal arguments in response to office action has been attached. Original PDF file: evi_1729093222-20170117114706827558_._2017-01-15_ROA_UNICORN_TEARS__SN86959283__TOO01-2300.pdf Converted PDF file(s) ( 3 pages) Evidence-1 Evidence-2 Evidence-3

SIGNATURE(S) Response Signature Signature: /Eric Goodman/ Date: 01/17/2017 Signatory's Name: Eric Goodman Signatory's Position: Attorney of Record, Member of California Bar

Signatory's Phone Number: 9496220020

Serial Number: 86959283 Internet Transmission Date: Tue Jan 17 11:59:26 EST 2017 TEAS Stamp: USPTO/ROA-XXX.XX.XX.XXX-2017011711592609 2403-86959283-580e18e4231601ee8f64e7db6e b5f3d8f59558fd76bff14a791b6eb40c1c2ab85- N/A-N/A-20170117114706827558

TF000044 TF000045 TF000046 TF000047 To: Too Faced Cosmetics, LLC ([email protected]) Subject: U.S. TRADEMARK APPLICATION NO. 86959283 - UNICORN TEARS - TOO01-2300 Sent: 7/14/2016 1:36:43 PM Sent As: [email protected] Attachments: Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION

U.S. APPLICATION SERIAL NO. 86959283

MARK: UNICORN TEARS *86959283* CORRESPONDENT ADDRESS: AMANDA J. MOONEY CLICK HERE TO RESPOND TO THIS LETTER: GOODMAN MOONEY, LLP http://www.uspto.gov/trademarks/teas/response_forms.jsp 3420 BRISTOL STREET SIXTH FLOOR VIEW YOUR APPLICATION FILE COSTA MESA, CA 92626 APPLICANT: Too Faced Cosmetics, LLC

CORRESPONDENT’S REFERENCE/DOCKET NO : TOO01-2300 CORRESPONDENT E-MAIL ADDRESS: [email protected]

OFFICE ACTION

STRICT DEADLINE TO RESPOND TO THIS LETTER TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S

TF000048 COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.

ISSUE/MAILING DATE: 7/14/2016

The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.

SEARCH OF OFFICE’S DATABASE OF MARKS

The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).

REFUSAL – FAILURE TO FUNCTION AS A TRADEMARK

Registration is refused because the applied-for mark, as used on the specimen of record, does not function as a trademark to indicate the source of applicant’s goods and to identify and distinguish them from others. Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051-1052, 1127; see In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1827-28 (TTAB 2012); In re Remington Prods., Inc., 3 USPQ2d 1714, 1715 (TTAB 1987); TMEP §§904.07(b); 1202 et seq.

The specimen, along with any other relevant evidence of record, is reviewed to determine whether an applied-for mark is being used as a trademark. In re Bose Corp., 546 F.2d 893, 897, 192 USPQ 213, 216 (C.C.P.A. 1976); In re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455, 1459 (TTAB 1998). Mere intent that a word, design, symbol, or slogan function as a trademark, or the fact that such designation appears on the specimen, is not enough in and of itself to make it a trademark. See In re Manco, Inc., 24 USPQ2d 1938, 1941 (TTAB 1992) (citing In re Remington Prods. Inc., 3 USPQ2d 1714, 1715 (TTAB 1987)). The USPTO will not register a designation unless purchasers would be likely to regard it as a source-indicator for the goods. See In re Manco, Inc., 24 USPQ2d at 1941 (citing In re Remington Prods. Inc., 3 USPQ2d at 1715); TMEP §1202.

The applied-for mark, as shown on the specimen, does not function as a trademark because it is identifying a color of the goods. As shown from the attached third-party websites from a range of different industries, many goods have color options. While such colors often have distinctive names, they are not viewed as trademarks for the goods themselves. Consumers will view applicant’s proposed mark as simply a color option that is selected before purchase.

Although applicant’s mark has been refused registration, applicant may respond to the refusal(s) by submitting evidence and arguments in support of registration.

Applicant may also respond to this refusal by submitting a substitute specimen or amending applicant’s basis to intent to use under Section 1(b) for each applicable international class.

Submitting a substitute specimen: Applicant may submit a substitute specimen that shows the applied-for mark used in commerce as a trademark for the goods in the application, and the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “ The substitute specimen was in use in commerce at least as early as the filing date of the application.” 37 C.F.R. §2.59(a); TMEP §904.05; see 37 C.F.R. §2.193(e)(1). If submitting a substitute specimen requires an amendment to the dates of use, applicant must also verify the amended dates. 37 C.F.R. §2.71(c); TMEP §904.05.

Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i).

To submit a verified substitute specimen online using the Trademark Electronic Application System (TEAS), applicant should (1) answer “yes” to the TEAS response form wizard question to “submit a new or substitute specimen,” and then do the following for each relevant class for which a substitute specimen is being submitted: (2) attach a jpg or pdf file of the substitute specimen, (3) describe what the specimen consists of, and (4) select the statement that “The substitute specimen(s) was in use in commerce at least as early as the filing date of the application.”

Amending to Section 1(b): If applicant cannot provide an acceptable substitute specimen, applicant may amend the application basis to intent to use under Section 1(b), for which no specimen is required, and the refusal will be withdrawn. See TMEP §806.03(c). However, if applicant amends the basis to Section 1(b), registration will not be granted until applicant later amends the application back to use in commerce by filing an acceptable allegation of use with a proper specimen. See 15 U.S.C. §1051(c), (d); 37 C.F.R. §§2.76, 2.88; TMEP §1103. If the same specimen is submitted with an allegation of use, the same refusal will issue.

To amend to Section 1(b), applicant must submit the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20:

TF000049 “ Applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in commerce as of the application filing date.” 37 C.F.R. §2.34(a)(2); TMEP §806.01(b); see 15 U.S.C. §1051(b); 37 C.F.R. §§2.35(b)(1), 2.193(e)(1).

To amend to Section 1(b) online using TEAS, applicant should (1) answer “yes” to the TEAS response form wizard question to “change filing basis,” and then do the following for each relevant class for which the filing basis is being amended: (2) uncheck the box for “Filing Basis Section 1(a),” (3) delete the use dates, and (4) check the box for “Filing Basis Section 1(b).”

Applicant should note the following additional refusal.

SUBSTITUTE SPECIMEN REQUIRED

Registration is refused because the specimen does not show the applied-for mark in use in commerce in connection with any of the goods and/or services specified in International Class(es) 3 in the application or amendment to allege use. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); In re Graystone Consulting Assocs., Inc., 115 USPQ2d 2035, 2037-38 (TTAB 2015); In re Chengdu AOBI Info. Tech. Co., 111 USPQ2d 2080, 2081-82 (TTAB 2011); TMEP §§904, 904.07(a), 1301.04(d), (g)(i). Specifically, the applied-for mark is not functioning as an indicator of source for cosmetics or cosmetic preparations; rather, the mark is identifying a particular color of the cosmetics.

An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods and/or services identified in the application or amendment to allege use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).

Applicant may respond to this refusal by satisfying one of the following for each applicable international class:

(1) Submit a different specimen (a verified “substitute” specimen ) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods and/or services identified in the application or amendment to allege use. A “verified substitute specimen” is a specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application or prior to the filing of the amendment to allege use.” The substitute specimen cannot be accepted without this statement.

(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.

For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to http://www.uspto.gov/trademarks/law/specimen.jsp.

ADVISORY

TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $50 per international class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone without incurring this additional fee.

If applicant has questions about its application or needs assistance in responding to this Office action, please telephone the assigned examining attorney.

/Michelle E. Dubois/

TF000050 Trademark Attorney U.S. Patent & Trademark Office Law Office 107 (571) 272-5887 [email protected]

TO RESPOND TO THIS LETTER: Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail [email protected]. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.

All informal e-mail communications relevant to this application will be placed in the official application record.

WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.

PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.uspto.gov/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at [email protected] or call 1-800-786-9199. For more information on checking status, see http://www.uspto.gov/trademarks/process/status/.

TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.

TF000051 To: Too Faced Cosmetics, LLC ([email protected]) Subject: U.S. TRADEMARK APPLICATION NO. 86959283 - UNICORN TEARS - TOO01-2300 Sent: 7/14/2016 1:36:44 PM Sent As: [email protected] Attachments:

UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)

IMPORTANT NOTICE REGARDING YOUR U.S. TRADEMARK APPLICATION

USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED ON 7/14/2016 FOR U.S. APPLICATION SERIAL NO. 86959283

Please follow the instructions below:

(1) TO READ THE LETTER: Click on this link or go to http://tsdr.uspto.gov, enter the U.S. application serial number, and click on “Documents.”

The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24 hours of this e-mail notification.

(2) TIMELY RESPONSE IS REQUIRED: Please carefully review the Office action to determine (1) how to respond, and (2) the applicable response time period. Your response deadline will be calculated from 7/14/2016 (or sooner if specified in the Office action). For information regarding response time periods, see http://www.uspto.gov/trademarks/process/status/responsetime.jsp.

Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail your response because the USPTO does NOT accept e-mails as responses to Office actions. Instead, the USPTO recommends that you respond online using the Trademark Electronic Application System (TEAS) response form located at http://www.uspto.gov/trademarks/teas/response_forms.jsp.

(3) QUESTIONS: For questions about the contents of the Office action itself, please contact the assigned trademark examining attorney. For technical assistance in accessing or viewing the Office action in the Trademark Status and Document Retrieval (TSDR) system, please e-mail [email protected].

WARNING

Failure to file the required response by the applicable response deadline will result in the ABANDONMENT of your application. For more information regarding abandonment, see http://www.uspto.gov/trademarks/basics/abandon.jsp.

PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION: Private companies not associated with the USPTO are using information provided in trademark applications to mail or e-mail trademark-related solicitations. These companies often use names that closely resemble the USPTO and their solicitations may look like an official government document. Many solicitations require that you pay “fees.”

Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document from the USPTO rather than a private company solicitation. All official USPTO correspondence will be mailed only from the “United States Patent and Trademark Office” in Alexandria, VA; or sent by e-mail from the domain “@uspto.gov.” For more information on how to handle private company solicitations, see http://www.uspto.gov/trademarks/solicitation_warnings.jsp.

TF000052 *** User:mdubois *** # Total Dead Live Live Status/ Search Marks Marks Viewed Viewed Search Docs Images Duration 01 1 0 1 1 0:01 86959283 02 234 75 1 1 0:01 "too faced"[on] 03 0 0 0 0 0:01 2 and color[gs] 04 548 N/A 0 0 0:02 *n{v}{"ckq"}$1{v}rn*[bi,ti] 05 2812 N/A 0 0 0:02 *te{"ea"}r*[bi,ti] 06 4 1 3 3 0:01 4 and 5 07 116 69 26 25 0:02 4 and "003"[cc] 08 24 13 9 9 0:01 4 and ("003" a b 200)[ic] 09 82 59 10 10 0:01 5 and ("003" a b 200)[ic]

Session started 7/12/2016 1:44:00 PM Session finished 7/12/2016 1:55:06 PM Total search duration 0 minutes 12 seconds Session duration 11 minutes 6 seconds Defaut NEAR limit=1ADJ limit=1

Sent to TICRS as Serial Number: 86959283

TF000053 TF000054 TF000055 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018) Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 86959283 Filing Date: 03/31/2016

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered TEAS Plus YES MARK INFORMATION

*MARK UNICORN TEARS

*STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

LITERAL ELEMENT UNICORN TEARS The mark consists of standard characters, without claim to any particular font, *MARK STATEMENT style, size, or color. REGISTER Principal APPLICANT INFORMATION

*OWNER OF MARK Too Faced Cosmetics, LLC

*STREET 18231 McDurmott West

*CITY Irvine

*STATE California (Required for U.S. applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 92614 (Required for U.S. applicants) LEGAL ENTITY INFORMATION

*TYPE LIMITED LIABILITY COMPANY

* STATE/COUNTRY WHERE LEGALLY Delaware ORGANIZED GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL CLASS 003

*IDENTIFICATION Cosmetics and cosmetic preparations

*FILING BASIS SECTION 1(a)

FIRST USE ANYWHERE DATE At least as early as 12/01/2015

FIRST USE IN COMMERCE DATE At least as early as 12/01/2015

TF000056 SPECIMEN FILE NAME(S)

ORIGINAL PDF FILE SPE0-6841624-20160331104901021993_._Specimen.pdf

CONVERTED PDF FILE(S) \\TICRS\EXPORT16\IMAGEOUT16\869\592\86959283\xml1\FTK0003.JPG (1 page)

SPECIMEN DESCRIPTION image of trademark displayed in relation to sale of product. ADDITIONAL STATEMENTS INFORMATION

*TRANSLATION (if applicable)

*TRANSLITERATION (if applicable)

*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAME/LIKENESS) (if applicable)

*CONCURRENT USE CLAIM (if applicable) ATTORNEY INFORMATION

NAME Amanda J. Mooney

ATTORNEY DOCKET NUMBER TOO01-2300

FIRM NAME Goodman Mooney, LLP

INTERNAL ADDRESS Sixth Floor

STREET 3420 Bristol Street

CITY Costa Mesa

STATE California

COUNTRY United States

ZIP/POSTAL CODE 92626

PHONE 9496220020

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

OTHER APPOINTED ATTORNEY Eric J. Goodman CORRESPONDENCE INFORMATION

*NAME Amanda J. Mooney

FIRM NAME Goodman Mooney, LLP

INTERNAL ADDRESS Sixth Floor

*STREET 3420 Bristol Street

*CITY Costa Mesa

*STATE California (Required for U.S. addresses)

*COUNTRY United States

*ZIP/POSTAL CODE 92626

PHONE 9496220020

TF000057 *EMAIL ADDRESS [email protected]

*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION

APPLICATION FILING OPTION TEAS Plus

NUMBER OF CLASSES 1

FEE PER CLASS 225

*TOTAL FEE PAID 225 SIGNATURE INFORMATION

* SIGNATURE /Amanda J. Mooney/

* SIGNATORY'S NAME Amanda J. Mooney

* SIGNATORY'S POSITION Attorney of Record, California Bar Member

SIGNATORY'S PHONE NUMBER 949.622.0020

* DATE SIGNED 03/31/2016

TF000058 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2018)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 86959283 Filing Date: 03/31/2016 To the Commissioner for Trademarks:

MARK: UNICORN TEARS (Standard Characters, see mark) The literal element of the mark consists of UNICORN TEARS. The mark consists of standard characters, without claim to any particular font, style, size, or color.

The applicant, Too Faced Cosmetics, LLC, a limited liability company legally organized under the laws of Delaware, having an address of 18231 McDurmott West Irvine, California 92614 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table. International Class 003: Cosmetics and cosmetic preparations

In International Class 003, the mark was first used by the applicant or the applicant's related company or licensee predecessor in interest at least as early as 12/01/2015, and first used in commerce at least as early as 12/01/2015, and is now in use in such commerce. The applicant is submitting one(or more) specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods/services, consisting of a(n) image of trademark displayed in relation to sale of product..

Original PDF file: SPE0-6841624-20160331104901021993_._Specimen.pdf Converted PDF file(s) (1 page) Specimen File1

The applicant's current Attorney Information: Amanda J. Mooney and Eric J. Goodman of Goodman Mooney, LLP Sixth Floor 3420 Bristol Street Costa Mesa, California 92626 United States 9496220020(phone) [email protected] (authorized) The attorney docket/reference number is TOO01-2300. The applicant's current Correspondence Information: Amanda J. Mooney Goodman Mooney, LLP Sixth Floor 3420 Bristol Street

TF000059 Costa Mesa, California 92626 9496220020(phone) [email protected] (authorized) E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant or applicant's attorney at the e-mail address provided above. I understand that a valid e-mail address must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in an additional processing fee of $50 per international class of goods/services.

A fee payment in the amount of $225 has been submitted with the application, representing payment for 1 class(es).

Declaration

The signatory believes that: if the applicant is filing the application under 15 U.S.C. § 1051(a), the applicant is the owner of the trademark/service mark sought to be registered; the applicant is using the mark in commerce on or in connection with the goods/services in the application; the specimen(s) shows the mark as used on or in connection with the goods/services in the application; and/or if the applicant filed an application under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e), the applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the goods/services in the application. The signatory believes that to the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true.

Signature: /Amanda J. Mooney/ Date Signed: 03/31/2016 Signatory's Name: Amanda J. Mooney Signatory's Position: Attorney of Record, California Bar Member

RAM Sale Number: 86959283 RAM Accounting Date: 03/31/2016

Serial Number: 86959283 Internet Transmission Date: Thu Mar 31 10:55:06 EDT 2016 TEAS Stamp: USPTO/FTK-XX.X.XXX.X-2016033110550649809 9-86959283-550e4413d678a73de31a831e64beb a63653c95b24972b669816e014ff8abfa4e3-CC- 11557-20160331104901021993

TF000060 TF000061 TF000062 TF000063 TF000064 TF000065 TF000066 TF000067 TF000068 TF000069 TF000070 TF000071 TF000072 TF000073 TF000074 TF000075 TF000076 TF000077 TF000078 TF000079 TF000080 GOODMAN MOONEY BRAND ADVOCATES & BUSINESS LAWYERS 3420 BRISTOL STREET, SIXTH FLOOR COSTA MESA, CALIFORNIA 92626 T: 949.622.0020 F: 949.622.0024 www.GoodmanMooney.com

Writer’s E-Mail File Number [email protected] TOO01-100

Via Certified Mail and Email October 2, 2017

Natalie Mackey Glow Concept, LLC 224 Varick Street, Suite 2 New York, NY 10014 [email protected]

Nathan Newman Winky Lux 77 Ludlow Street, Suite 2 New York, NY 10002 [email protected]

Re: Infringement of UNICORN TEARS Trademark U.S. Registration No. 5234883

Dear Ms. Mackey and Mr. Newman:

We represent Too Faced Cosmetics, LLC (“Too Faced”) with respect to its intellectual property matters. As you are most certainly aware, Too Faced is a leading prestige beauty brand with an international following. Too Faced markets its popular, luxury cosmetics at high end retailers, both in the United States and worldwide.

Through the creation, distribution and promotion of high quality cosmetics, Too Faced has built a prominent reputation amongst consumers, the press and retailers alike. Furthermore, Too Faced has extensively advertised and promoted its products and the intellectual property inherent therein, thereby developing enormously valuable goodwill. In essence, Too Faced’s trademarks, trade dress and proprietary materials are now highly recognizable and readily associated with Too Faced.

Too Faced has been selling its extremely popular UNICORN TEARS lipstick since December 1, 2015. Since its debut, the aforementioned lipstick has become a fixture in the Too Faced line and a favorite amongst purchasers. Enclosed is a copy of Too Faced’s U.S. Trademark Registration No. 5234883 for UNICORN TEARS. The registration covers a broad scope of protection based on cosmetics in International Class 003 which also covers Too Faced’s expanding range of goods marketed under the UNICORN TEARS mark beyond lipstick. Too Faced’s prior use of, and registration for, its UNICORN TEARS mark accords it priority rights to the trademark for cosmetics.

TF000081 Infringement of UNICORN TEARS Trademark October 2, 2017

It has come to our attention that Glow Concept, LLC, doing business as Winky Lux, is using the mark UNICORN TEARS for a lip gloss product. Your sale of this product, as currently branded, is bad faith conduct that violates enforceable rights acquired by our client. Based on your unapproved use of the UNICORN TEARS mark, we can only conclude that your actions are a blatant attempt to take advantage of our client’s goodwill and well-established customer base through bad faith conduct that is prohibited by federal, state, and common law.

In view of the foregoing, we hereby insist upon your unconditional compliance with the following demands:

1. Immediately cease and desist any and all further use, reproduction, distribution, promotion, sale, advertising, or any other activity involving products bearing the UNICORN TEARS mark or derivations thereof. All social media posts which utilize the UNICORN TEARS mark should be removed; 2. Immediately order the cessation of all sales of all UNICORN TEARS products by third parties to whom you distribute such goods; 3. Provide a detailed inventory of all promotional materials used in connection with the marketing, promoting, and offering of products with the UNICORN TEARS branding in your possession, custody, or control and a full accounting of all goods and/or services being offered which bear the UNICORN TEARS branding; 4. Identify the names and addresses of any third parties who are otherwise involved in the unauthorized distribution, reproduction, or other exploitation of goods and/or services using the UNICORN TEARS branding; 5. Provide names and contact information for all persons and entities to whom you are currently, or have previously provided, the aforementioned UNICORN TEARS branded goods and/or services for resale, including all fictitious names; 6. Preserve any and all documents and records, financial and otherwise, relating to this matter, including but not limited to, electronic data and other information which may be relevant and/or discoverable in the event of litigation; and 7. Confirm, in writing to us, by 5:00 p.m. on October 12, 2017 that you shall fully and promptly comply with each of our demands.

Should you fail to provide our office with the aforementioned written assurances by October 12, 2017, be advised that we shall recommend, without further notice to you, that our client take all available legal action to protect its rights.

Be advised that nothing contained in this letter is intended as, or may be deemed to constitute, a waiver of any of Too Faced’s rights or remedies, all of which are hereby expressly reserved.

We look forward to a swift and amicable resolution to this matter.

Most sincerely,

Eric Goodman Attorney Enclosure(s) TF000082 States of ^ntetir^ VW^ Wbiitth States ^Patent anb ^KralicmarU (Pfficc ^

UNICORN TEARS

Reg. No. 5,234,883 Too Faced CosmtCosmetics, LLC(DELAWARE LIMITED LIABILITY COMPANY) 18231 McDurmolMcDurmott West Registered Jul. 04, 2017 Irvine. CA 92614 CLASS 3: Cosmetics and cosmetic preparations Int. CI.: 3 FIRST USE 12-1-2015; IN COMMERCE 12-1-20)5 Trademark THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY Principal Register PARTICULAR FONT STYLE, SIZE OR COLOR

SER, NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY

Perforniin9(ht fuiKtions and Outtct of (h« VIndtr Seottary of Commerce for Intellectual Pcopertv and Director of the United States Patent and Tradenutfc Office

TF000083 GOODMAN MOONEY BRAND ADVOCATES & BUSINESS LAWYERS 3420 BRISTOL STREET, SIXTH FLOOR COSTA MESA, CALIFORNIA 92626 T: 949.622.0020 F: 949.622.0024 www.GoodmanMooney.com

Writer’s E-Mail File Number [email protected] TOO01-100

Via Certified Mail and Email October 10, 2017

Fragrant Jewels LLC 2417 E. 24th Street Los Angeles, CA 90058 [email protected] Phone: (855) 550-1129

Derek Andriesian 1279 Ozeta Terrace West Hollywood, CA 90069 [email protected]

Keyla Torres 807 Mateo Street Los Angeles, CA 90021 [email protected]

Re: Infringement of UNICORN TEARS® Trademark U.S. Registration No. 5234883

Dear Mr. Andriesian and Ms. Torres:

TF000084 Infringement of UNICORN TEARS® Trademark October 10, 2017

registration covers a broad scope of protection based on cosmetics in International Class 003. Too Faced’s prior use of, and registration for, its UNICORN TEARS® mark accords it priority rights to the trademark for cosmetics.

It has come to our attention that Fragrant Jewels LLC is using the mark UNICORN TEARS for candles and bath bomb products. Your sale of these products, as currently branded, is bad faith conduct that violates enforceable rights acquired by our client. Based on your unapproved use of the UNICORN TEARS mark, we can only conclude that your actions are a blatant attempt to take advantage of our client’s goodwill and well-established customer base through bad faith conduct that is prohibited by federal, state, and common law.

In view of the foregoing, we hereby insist upon your unconditional compliance with the following demands:

2. Immediately order the cessation of all sales of all UNICORN TEARS products by third parties to whom you distribute such goods;

3. Provide a detailed inventory of all promotional materials used in connection with the marketing, promoting, and offering of products with the UNICORN TEARS branding in your possession, custody, or control and a full accounting of all goods and/or services being offered which bear the UNICORN TEARS branding;

4. Identify the names and addresses of any third parties who are otherwise involved in the unauthorized distribution, reproduction, or other exploitation of goods and/or services using the UNICORN TEARS branding;

5. Provide names and contact information for all persons and entities to whom you are currently, or have previously provided, the aforementioned UNICORN TEARS branded goods and/or services for resale, including all fictitious names;

6. Preserve any and all documents and records, financial and otherwise, relating to this matter, including but not limited to, electronic data and other information which may be relevant and/or discoverable in the event of litigation; and

7. Confirm, in writing to us, by 5:00 p.m. on October 20, 2017 that you shall fully and promptly comply with each of our demands.

Should you fail to provide our office with the aforementioned written assurances by October 20, 2017, be advised that we shall recommend, without further notice to you, that our client take all available legal action to protect its rights.

TF000085 Infringement of UNICORN TEARS® Trademark October 10, 2017

Be advised that nothing contained in this letter is intended as, or may be deemed to constitute, a waiver of any of Too Faced’s rights or remedies, all of which are hereby expressly reserved.

We look forward to a swift and amicable resolution to this matter.

Most sincerely,

Eric J. Goodman Attorney Enclosure(s)

TF000086 States of ^ntetir^ VW^ Wbiitth States ^Patent anb ^KralicmarU (Pfficc ^

UNICORN TEARS

SER, NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY

Perforniin9(ht fuiKtions and Outtct of (h« VIndtr Seottary of Commerce for Intellectual Pcopertv and Director of the United States Patent and Tradenutfc Office

TF000087 FREITAS ANGELL & WEINBERG LLP

350 Marine Parkway, Suite 200 Redwood Shores, CA 94065

650-593-6300 P · 650-593-6301 F www.fnwlnw.r.om

JASON S. ANGELL (650) 730-5526 [email protected]

October 16, 2017

VIA E-MAIL ( eric@goodmanmooney .com)

Eric J. Goodman Goodman Mooney LLP 3420 Bristol Street, 6th Floor Costa Mesa, CA 92626

Re: Too Faced Cosmetics

Dear Mr. Goodman:

I represent Fragrant Jewels LLC ("Fragrant Jewels"), and I write in response to your letter dated October 10, 2017 regarding the Fragrant Jewels Unicorn Tears candle and bath bomb (the "Fragrant Jewels Products"). Your October 10 letter asserts that Fragrant Jewels' use of the words "Unicorn Tears" on candle and bath bomb products infringes Too Faced Cosmetics, LLC's ("Too Faced") UNICORN TEARS mark registered in July 2017 for use with cosmetics (the "Too Faced Mark"), such as Too Faced's lipstick products.

Fragrant Jewels respects intellectual property rights and takes seriously concerns such as those expressed in your letter. Unfortunately, your recent letter does not contain any discussion of how or why there could be a likelihood of confusion created by the Fragrant Jewels Products in regard to the recently registered UNICORN TEARS mark. We investigated your assertion and conducted our own analysis, which we summarize below. As explained, we disagree that Fragrant Jewels has violated any of your client's rights.

Fragrant Jewels' use of"Unicorn Tears" on its candle and bath bomb poses no risk of confusing consumers about the source of those products, and it is in no way a "blatant attempt to take advantage of [y]our client's goodwill and well established customer base." Fragrant Jewels does not sell any cosmetic products like those sold by your client. Instead, Fragrant Jewels sells hand crafted candle and bath products containing jewelry.

The Fragrant Jewels Products are clearly outside the scope of any protection afforded by the UNICORN TEARS mark for "cosmetic and cosmetic preparations." See Lockheed Martin Corp. v. Network Sols., Inc., 985 F. Supp. 949, ＹＶＴｾＶＵ＠ (C.D. Cal. 1997) ("trademark law permits multiple parties to use and register the same mark for different classes of goods"). As you are surely aware, a candle is not a cosmetic product. Indeed, candles belong in International Class 4, not in Class 3 with cosmetics. And while bath bomb products generally fall within Class 3, your colleague Ms. Mooney explained in Too

FAW LAW TF000088 Mr. Eric J. Goodman October 16, 2017 Page 2

Faced's Request for Reconsideration related to its application for CHOCOLATE CHIPS in Class 3 for cosmetics that "[t]here are a wide range of goods which fall into Class 003," that "skincare products are 'clearly distinct' from bathing products," and bath products are "very distinct from [Too Faced] color cosmetics." Request for Reconsideration after Final Action, Serial No. 86282516, July 20, 2015. We agree with your firm's and your client's distinction between these product types. We also agree that "cosmetics and bath/hair products serve obviously different purposes. Cosmetics are used to enhance beauty. Bath and hair products are used to clean and groom. The relevant consumer appreciates the taxonomy which has evolved in the beauty industry." !d.

It is widely understood that the "mere fact that two products or services fall within the same general field ... does not mean that the two products or services are sufficiently similar to create a likelihood of confusion." E.g., Gerawan Farming, Inc. v. Prima Bella Produce, Inc., No. CVF-10-0148-LJO-JLT, 2011 U.S. Dist. LEXIS 84776, at *53 (E.D. Cal. Aug. 2, 2011); Harlem WizardsEntm 't Basketball, Inc. v. NBA Props., 952 F. Supp. 1084, 1095 (D.N.J. 1997); see also W. W. W. Pharm. Co. v. Gillette Co., 984 F.2d 567, 573 (2d Cir. 1993) (noting that lip balm and deodorant which are both in International Class 3, "do not compete nor serve the same purpose, although they may both be generally defined as personal care products"). That is clearly the case here, as candle and bath bomb products are obviously distinct from "cosmetic and cosmetic preparations" like Too Faced's lipstick products.

In addition, the Fragrant Jewels Products are conspicuously branded under the FRAGRANT JEWELS mark, and the packaging bears no resemblance to Too Faced's product packaging. The Fragrant Jewels Products are also available only through the Fragrant Jewels website and are not available through sources that sell Too Faced products.

For these reasons and others, Fragrant Jewels does not infringe or otherwise violate any rights your client may have in the Too Faced Mark. We trust that the above explanation addresses the concerns raised in your letter, and on that basis will consider this matter closed. If you have any questions, please do not hesitate to contact me.

This letter is written without any acknowledgement of any liability for the issues raised in your letter, or waiver of or prejudice to Fragrant Jewels' legal and other rights or remedies, all of which are expressly reserved.

Sincere , 1//1 1/

FAW LAW TF000089 GOODMAN MOONEY BRAND ADVOCATES & BUSINESS LAWYERS 3420 BRISTOL STREET, SIXTH FLOOR COSTA MESA, CALIFORNIA 92626 T: 949.622.0020 F: 949.622.0024 www.GoodmanMooney.com

Writer’s E-Mail File Number [email protected] TOO01-100

Via U.S. Mail and Email October 10, 2017

Ms. Ashley Judge 15 Hardy Street, Unit 1 Salem, MA 01970 [email protected]

The Funtrepreneur, Inc. 100 Cummings Center, Suite 125-G Beverly, MA 01915 Phone (978)969-6230

Re: Infringement of UNICORN TEARS® Trademark U.S. Registration No. 5234883

Dear Ms. Judge:

Too Faced has been selling its extremely popular cosmetics under the UNICORN TEARS mark since at least as early as December 1, 2015. Since then, the UNICORN TEARS branded products have become a fixture in the Too Faced line and a favorite amongst purchasers. Enclosed is a copy of Too Faced’s U.S. Trademark Registration No. 5234883 for UNICORN TEARS. The registration covers a broad scope of protection based on cosmetics in International Class 003. Too Faced’s prior use of, and registration for, its UNICORN TEARS mark accords it priority rights to the trademark for cosmetics.

It has come to our attention that The Funtrepreneur, Inc. is using the mark UNICORN TEARS for bubble bath products on the Always Fits website (www.alwaysfits.com/index.php/unicorn-tears-

TF000090 Infringement of UNICORN TEARS® Trademark October 20, 2017

bubble-bath.html). Your sale of this product, as currently branded, is bad faith conduct that violates enforceable rights acquired by our client. Based on your unapproved use of the UNICORN TEARS mark, we can only conclude that your actions are a blatant attempt to take advantage of our client’s goodwill and well-established customer base through bad faith conduct that is prohibited by federal, state, and common law.

In view of the foregoing, we hereby insist upon your unconditional compliance with the following demands:

1. Immediately cease and desist any and all further use, reproduction, distribution, promotion, sale, advertising, or any other activity involving products bearing the UNICORN TEARS mark or derivations thereof. All social media posts which utilize the UNICORN TEARS mark should be removed; 2. Immediately order the cessation of all sales of all UNICORN TEARS products by third parties to whom you distribute such goods; 3. Provide a detailed inventory of all promotional materials used in connection with the marketing, promoting, and offering of products with the UNICORN TEARS branding in your possession, custody, or control and a full accounting of all goods and/or services being offered which bear the UNICORN TEARS branding; 4. Identify the names and addresses of any third parties who are otherwise involved in the unauthorized distribution, reproduction, or other exploitation of goods and/or services using the UNICORN TEARS branding; 5. Provide names and contact information for all persons and entities to whom you are currently, or have previously provided, the aforementioned UNICORN TEARS branded goods and/or services for resale, including all fictitious names; 6. Preserve any and all documents and records, financial and otherwise, relating to this matter, including but not limited to, electronic data and other information which may be relevant and/or discoverable in the event of litigation; and 7. Confirm, in writing to us, by 5:00 p.m. on October 20, 2017 that you shall fully and promptly comply with each of our demands.

Be advised that nothing contained in this letter is intended as, or may be deemed to constitute, a waiver of any of Too Faced’s rights or remedies, all of which are hereby expressly reserved.

We look forward to a swift and amicable resolution to this matter.

Most sincerely,

Eric J. Goodman Attorney

TF000091 States of ^ntetir^ VW^ Wbiitth States ^Patent anb ^KralicmarU (Pfficc ^

UNICORN TEARS

SER, NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY

Perforniin9(ht fuiKtions and Outtct of (h« VIndtr Seottary of Commerce for Intellectual Pcopertv and Director of the United States Patent and Tradenutfc Office

TF000092 GOODMAN MOONEY

BRAND ADVOCATES & BUSINESS LAWYERS 3420 BRISTOL STREET, SIXTH FLOOR COSTA MESA, CALIFORNIA 92626 T: 949.622.0020 F: 949.622.0024 www.GoodmanMooney.com

Writer’s E-Mail File Number [email protected] TOO01-100

Via Certified Mail and Email December 16, 2017

Vivian Khodabakhsi Kamalyan Smolder Cosmetics, LLC 341 Arden Ave. Glendale, CA 91203 [email protected]

Re: Infringement of UNICORN TEARS Trademark U.S. Registration No. 5234883

Dear Ms. Kamalyan:

It has come to our attention that Smolder Cosmetics is using the mark UNICORN TEARS for a cosmetic product. Your sale of this product, as currently branded, is bad faith conduct that violates enforceable rights acquired by our client. Based on your unapproved use of the UNICORN TEARS mark, we can only conclude that your actions are a blatant attempt to take advantage of our client’s goodwill and well-established customer base through bad faith conduct that is prohibited by

TF000093 Infringement of UNICORN TEARS Trademark December 16, 2017

federal, state, and common law.

In view of the foregoing, we hereby insist upon your unconditional compliance with the following demands:

Should you fail to provide our office with the aforementioned written assurances by December 22, 2017, be advised that we shall recommend, without further notice to you, that our client take all available legal action to protect its rights.

Be advised that nothing contained in this letter is intended as, or may be deemed to constitute, a waiver of any of Too Faced’s rights or remedies, all of which are hereby expressly reserved.

We look forward to a swift and amicable resolution to this matter.

Most sincerely,

Amanda Mooney Attorney Enclosure(s)

TF000094 Reg. No. 5,234,883 Too Faced Cosmetics, LLC (DELAWARE LIMITED LIABILITY COMPANY) 18231 McDurmott West Registered Jul. 04, 2017 Irvine, CA 92614 Int. Cl.: 3 CLASS 3: Cosmetics and cosmetic preparations FIRST USE 12-1-2015; IN COMMERCE 12-1-2015 Trademark THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY Principal Register PARTICULAR FONT STYLE, SIZE OR COLOR SER. NO. 86-959,283, FILED 03-31-2016 MICHELLE E DUBOIS, EXAMINING ATTORNEY

TF000095 TF000096 TF000097 TF000098 TF000099 TF000100 TF000101 TF000102 TF000103 TF000104 LOG IN CART (0)

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