Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA982841 Filing date: 06/24/2019
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91248465 Party Plaintiff Janna Sheehan Correspondence JOHN T MAHER Address LAW OFFICE OF JOHN T MAHER 105 E 122ND ST AC TRANCE NEW YORK, NY 10035 UNITED STATES [email protected] 646-675-8909
Submission Motion to Amend Pleading/Amended Pleading Filer's Name /John T. Maher/ Filer's email [email protected] Signature /John T. Maher/ Date 06/24/2019 Attachments Notice of Motion and AMENDED NOTICE OF OPPOSITION 6.24.2019.pdf(304618 bytes ) EXHIBIT A AMENDED OPPOSITION MATTETRANCE APPELLATE BRIEF.pdf(1036982 bytes ) EXHIBIT B. Amended Opp Blitztrance Application.pdf(31077 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
______X JANNA S. JACKSON
Opposer, Opposition No. v. Application Serial No. 88075517 PAT MCGRATH COSMETICS LLC, Mark: BLITZTRANCE Applicant.
______X
OPPOSER’S MOTION TO AMEND NOTICE OF OPPOSITION
JANNA S. JACKSON nee SHEEHAN (the “Opposer”) dba AC Trance, Inc., is an individual residing at in California with an address designated as P.O. Box 1536, Ojai, CA
93024, who maintains her office and principal place of business located at 345 Willis Avenue
Suite 109, Camarillo, CA 93010.
Opposer serves and submits her Notice of Motion to Amend Opposition and Amended
Notice of Opposition pursuant to TBMP §2.107 which permits an Amendment of pleadings and other documents in an opposition proceeding (See, TBMP §2.107; 48 FR 23136, May 1983; 68
FR 55748).
Opposer owns the TRANCE trademark registered under U.S. Trademark Application
Serial No. 88124294 (hereinafter also referred to as “Opposer’s Mark” or “TRANCE”), which was registered in August 30, 2005.
Applicant PAT MCGRATH COSMETICS LLC (the “Applicant”), is a corporation with an address at 126 Fifth Ave., New York NEW YORK 10011.
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Opposer seeks to file an Amended Notice of Opposition in the inter partes Opposition proceeding concerning the proposed mark “BLITZTRANCE” (“Applicant’s Mark” or
“BLITZTRANCE”) on August 13, 2018 and published for public opposition in the Official
Gazette on January 15, 2019. Opposer’s Amended Notice of Opposition states several grounds against allowing such registration upon the Principal Register.
Opposer believes that the Amended Notice of opposition will clarify the facts and relief requested. No prejudice will result because no further deadlines have passed and Applicant has not yet responded to Opposer’s duly filed Notice of Opposition.
No prior application to file an Amended Notice of Opposition has been made or requested.
Dated: New York, NY June 24, 2019
Respectfully submitted,
/John T. Maher, Esq./
Law Office of John T. Maher Attorneys for Opposer Janna S. Jackson (Sheehan) 105 E. 122nd St. New York, NY 10035 646 675 8909 [email protected]
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IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
______X JANNA S. JACKSON
Opposer, Opposition No. 91248308 v. Application Serial No. 88075517 PAT MCGRATH COSMETICS LLC, Mark: BLITZTRANCE Applicant.
______X
AMENDED NOTICE OF OPPOSITION
JANNA S. JACKSON nee SHEEHAN (the “Opposer”) dba AC Trance, Inc., is an individual residing at in California with an address designated as P.O. Box 1536, Ojai, CA
93024, who maintains her office and principal place of business located at 345 Willis Avenue
Suite 109, Camarillo, CA 93010.
Opposer serves and submits her Amended Notice of Opposition pursuant to TBMP
§2.107 which permits an Amendment of pleadings and other documents in an opposition proceeding (See, TBMP §2.107; 48 FR 23136, May 1983; 68 FR 55748).
Opposer owns the TRANCE trademark registered under U.S. Trademark Application
Serial No. 88124294 (hereinafter also referred to as “Opposer’s Mark” or “TRANCE”), which was registered in August 30, 2005.
Applicant PAT MCGRATH COSMETICS LLC (the “Applicant”), is a corporation with an address at 126 Fifth Ave., New York NEW YORK 10011.
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Applicant filed a proposed registration for the mark “BLITZTRANCE” (“Applicant’s
Mark” or “BLITZTRANCE”) on August 13, 2018 and published for public opposition in the
Official Gazette on January 15, 2019, and, Opposer further opposes and amends its opposition to the same.
As grounds for this Amended Notice of Opposition, Opposer, through counsel, alleges as follows:
FACTUAL BACKGROUND
The Parties
1. Opposer Jackson is an individual who operates a business in the fragrance and cosmetics industries through her corporate entity AC Trance, Inc. DBA Trance Essence.
2. Opposer has also worked as a consultant in the fragrance and cosmetics industry since
2007 and her professional skill and acumen are valued by manufacturers, hotel chains, beauty companies and others in the industry.
3. Upon information and belief, Applicant is a large beauty product and cosmetics brand.
Opposer’s Ownership, Prior Registration and Use of the TRANCE Mark
2. Opposer is the owner of the TRANCE Mark and has actively and continuously used the
TRANCE trademark (Registration No. 2990447) in commerce since April 2007.
3. Opposer owns the website “www.tranceessence.com”. The Tranceessence.com domain name was registered on August 1, 2011, and since then it has been used to advertise and promote a variety of beauty products and cosmetics.
4. Opposer’s creative vision for the TRANCE mark is to allow the consumer to transcend the routine of daily life and aspire to a higher state of consciousness through the use of her
4 fragrances, beauty products and cosmetics. In the view of Opposer, the TRANCE mark conveys this aspiration in a unique and powerful manner which is associated with her products.
Applicant’s Registration of the BLITZTRANCE Mark
5. Applicant is the owner of U.S. Trademark Application Serial No. 88075517 for the “BLITZTRANCE” Mark, in standard characters, for the following goods: “Fragrance sprays for personal use, perfumes; essential oils for personal use; anti-perspirants and deodorants for personal use; cosmetics; non-medicated skin care preparations; hair care preparations; soaps for personal use,” in International Class 3. U.S. Trademark Application
Serial No. 88075517 was filed on 08/13/2018 and was published for public opposition in the
Official Gazette on 01/15/2019. Upon information and belief, Applicant knew of the Opposer’s prior registration, ownership and use in commerce of the TRANCE Mark at the time it sought to register the BLITZTRANCE Mark.
Opposer’s Use and Intended Use of the TRANCE Mark
6. The Opposer registered her TRANCE Mark in 2003 for goods and services including
“essential oils, for personal use; cosmetics; skin care products, namely, skin lotions, cremes, balms and cleansers; hair care products, namely conditions” under an International Class 3 registration.
7. Thereafter, Opposer began to use her TRANCE Mark in commerce and advertise and display it to the public.
8. Opposer also intends to further expand the use of the TRANCE Mark on her products into the categories of cosmetics, makeup and fragrance, as well as emerging categories of goods, was she is able to design, source necessary supplies, finance, produce, market, distribute and sell her branded products. In the consumer marketplace, brands in the fragrance, beauty and
5 cosmetics industry are evolving to merge across traditional product categories and present new choices to consumers choices for multiple products in new formats such as fragrances incorporated into body cremes and lotions, skincare, makeup and in new formats such as powdered perfumes and scented lipsticks.
Similarity Between the Marks and Likelihood of Confusion
9. Many of Opposer’s TRANCE Mark branded goods consist of items which may be described as both beauty products, makeup and cosmetics. Opposer’s TRANCE Mark and
Applicant’s BLITZTRANCE marks are identical in-part because the both are registered for the same Class 3 registration, both contain the product category “cosmetics”, the goods of both may be considered beauty products, and both target the same demographic of consumers.
10. Opposer’s and Applicant’s goods are confusingly similar because they both fall within the same or similar product categories. Goods such as beauty products and cosmetics are traditionally located within the same sections of stores, marketed in similar manners, and advertised and sold to a similar demographic consisting of individuals interested in enhancing their personal appearance for aesthetic reasons.
11. Applicant’s use of the BLITZTRANCE Mark is without justification or permission and, upon information and belief, was sought to be registered with knowledge of Opposer’s prior registration of the TRANCE Mark.
Applicant’s Infringing Use of the MATTETRANCE Mark
13. On November 23, 2016, Applicant filed an intent-to-use application to register the mark
MATTETRANCE on the Principal Register. Upon information and belief, Applicant knew of the
Opposer’s prior registration, ownership and use in commerce of the TRANCE Mark at the time it sought to register the MATTETRANCE Mark.
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14. On January 25, 2017, the Examining Attorney issued a non-final Office action, refusing to register the MATTETRANCE Mark under Section 2(d) of the Trademark Act due to the likelihood of confusion with the Opposer’s prior registered TRANCE Mark.
15. Thereafter, Applicant filed a response on July 25, 2017, alleging further arguments in favor of registration of the MATTRANCE Mark.
16. The trademark Examining Attorney then issued a final Office action on August 18, 2017, maintaining the refusal to register Applicant’s MATTETRANCE Mark under Section 2(d).
17. On February 20, 2018, Applicant commenced an instant appeal of the Board’s denial of the Applicant’s MATTETRANCE Mark registration and filed a request for reconsideration, which was subsequently denied by the Examining Attorney on March 9, 2018.
18. The trademark Examining Attorney then issued a final PTO office action on or about
August 18, 2017, maintaining the refusal to register Applicant’s MATTETRANCE Mark under
Section 2(d).
19. Following this, Applicant appealed, the appeal was denied and Applicant has filed a second appeal which is pending.
20. Opposer respectfully incorporates the arguments set forth in the Examining Attorney’s attached Appeal Brief (Exhibit A) concerning the Applicant’s infringing use of the
MATTERANCE Mark (Serial number 87246413) filed on or about April 30, 2019, and incorporates same by reference and with equal force as if fully set forth herein.
21. Opposer believes that the refusal to register the MATTERANCE trademark was proper and that the facts presented and legal issues are almost identical to the issues presented in
Opposer’s opposition to the BLITZTRANCE trademark.
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22. Those issues, which were present in the Applicant’s unsuccessful attempt to register the
MATTETRANCE Mark, are predicated upon almost identical facts and resulting legal determinations which establish a likelihood of confusion between the Opposer’s prior registered
TRANCE Mark and Applicant’s MATTETRANCE Mark.
Applicant’s Infringing Use of Opposer’s TRANCE Mark
23. Applicant is a cosmetics brand which, upon information and belief, is wholly or partly owned by Pat McGrath Labs LLC.
24. The Applicant’s goods and Opposer’s goods both are in the category of beauty products and cosmetics and this same or similar product category may reasonably give rise to a mistaken belief on the part of consumers that the Applicant’s goods and Opposer’s goods emanate from the same source.
Applicant’s LUXETRANCE Mark Attempts to Usurp Opposer’s TRANCE Mark
25. Applicant has also filed a registration for use of the LUXETRANCE Mark (Serial No.:
87807216; Opposition No. 91248465), which Opposer has duly opposed. Upon information and belief, Applicant knew of the Opposer’s prior registration, ownership and use in commerce of the
TRANCE Mark at the time it sought to register the LUXETRANCE Mark.
26. Applicant has also filed a Petition for Cancellation against Opposer’s prior registration of the TRANCE Mark.
27. Applicant has wrongfully used the Opposer’s TRANCE Mark in commerce as part of various combination Marks, including LUXETRANCE, BLITZTRANCE and
MATTETRANCE, for a range of beauty products and cosmetics such as lipstick, mascara, and eye shadow.
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Opposer’s Request for Consolidation of All TTAB Proceedings
28. Opposer has submitted a pending Motion to Consolidate its Oppositions to the
BLITZTRANCE, LUXETRANCE and MATTETRANCE Marks as well as the Applicant’s
Cancellation Proceeding against the TRANCE Mark.
GROUNDS FOR OPPOSITION
First Ground For Opposition Priority
29. Opposer re-alleges and incorporates herein by reference the allegations in each and every previous paragraph as if fully set forth herein.
30. Opposer’s use and registration of her TRANCE Mark long predates the filing date of
Applicant’s Mark.
31. The granting of a trademark registration to Applicant for Applicant’s Mark would violate and diminish the prior and superior rights of Opposer.
32. Opposer would be damaged within the meaning of 15 U.S.C. §1063(a), if Applicant’s
Mark is allowed to be registered, because Applicant would obtain statutory rights in Applicant’s
Mark in violation and derogation of the established prior rights of Opposer as prior registrant of her TRANCE Mark.
Second Ground For Opposition Likelihood of Confusion
33. Opposer re-alleges and incorporates herein by reference the allegations in each and every previous paragraph as if fully set forth herein.
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Distinctiveness of Opposer’s TRANCE Mark
34. Opposer’s TRANCE Mark is inherently distinctive because it does not describe a material attribute of Opposer’s goods, but does describe the creative intent and aspirational use of the product towards a transcendent, or trancelike, experience.
35. Consumers in the United States associate Opposer’s TRANCE Mark as identifying goods emanating exclusively from Opposer.
36. Opposer also owns common law rights in the United States for TRANCE for its fragrances, cosmetics and beauty products.
37. Opposer’s TRANCE Mark is valid and legally protectable; is owned by Opposer; and the
Applicant’s incorporation and use of its TRANCE mark in Applicant’s BLITZTRANCE Mark to identify goods is likely to create confusion concerning the origin of the goods.
38. Notwithstanding Opposer’s superior rights to the TRANCE Mark, which were or would have reasonably been apparent to Applicant following even a basic trademark search, Applicant filed intent-to-use Application Serial No 88075517 for BLITZTRANCE.
Applicant’s Goods Are Related and Identical In-Part to The Goods in Opposer’s
Registration
39. Applicant’s Mark is likely to be confused with and mistaken for Opposer’s goods developed and marketed under Opposer’s Marks because Applicant’s BLITZTRANCE mark is confusingly similar because the Opposer’s goods are related and identical in part to Opposer’s goods.
41. Applicant’s and Opposers’s goods are identical in-part because the registrations for both contain the product category “cosmetics.” Further, Applicant’s TAB application also contains
“cosmetic preparations for skin,” which is encompassed by Opposer’s “cosmetics.”
10 to mean, “cosmetics (such as lipstick, mascara, and eye shadow) used to color and beautify the face” and are sufficiently broad to include Applicant’s “cosmetics” and are thus related for purposes of evidencing a likelihood of confusion. This confusion is expected to exacerbate as the cosmetics, fragrance and beauty products market itself continues to blur boundaries between goods, and as Opposer is able to bring new beauty products to market which also blur the traditional boundaries between cosmetic, makeup and fragrances.
42. The Merriam-Webster.com online dictionary (accessed June 20, 2019) defines “makeup”
This dictionary evidence shows the word “makeup” is broadly defined to include cosmetics used to color and beautify the face. Applicant’s entries for “makeup” and “makeup preparations,” therefore, are sufficiently broad to include Opposer’s use of “cosmetics” and are thus related for purposes of likelihood of confusion.
43. In the United States, companies in the beauty and cosmetics industry commonly provide cosmetics, makeup, and skin and hair care products under the same mark which are sold in drugstores, over the internet, and through other outlets, which serves as further evidence of factors which indicate a likelihood of confusion.
44. As a result, the goods of both the Applicant and Opposer have no restrictions as to nature, type, channels of trade, or classes of purchasers and travel in the same channels of trade to the same class of purchasers.
45. Additionally, Applicant’s Mark conveys a nearly identical commercial impression as
Opposer’s Mark because they are used, or intended for use, on cosmetics, beauty products and related items focused upon personal aesthetic enhancement.
46. Both Applicant’s and Opposer’s goods are sold in the same market.
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The Significant Overlap of the Two Marks Demonstrates Confusion
47. Upon information and belief, Applicant’s target a customer and consumer base for its goods which overlaps with the customers and consumers of Opposer’s goods.
48. Upon information and belief, Applicant’s channels of trade for its products also overlap with the channels of trade used by Opposer. These channels of trade for goods exist within the natural realm of expansion available to Opposer, for producing, providing, marketing, selling, and otherwise distributing its products.
49. These goods of both Applicant and Opposer within the Class 3 categories, many of which are expected to consist of boundary-blurring goods such as fragrance infused body lotion, makeup, cosmetics and other new and innovative combinations and products, also overlap.
50. Additionally, Opposer has used, and intends to further use, its TRANCE Mark on goods that overlap extensively with the categories of goods that Applicant has designated, such as fragrances, cosmetics, beauty products, soaps, makeup, facial scrub, hair care products, and the like.
51. Use by Applicant of the applied-for mark for the products set forth in Applicant’s
Application is likely to result in confusion with Opposer, or in the belief that Applicant or its products are in some way legitimately connected with, sponsored by, or licensed or approved by,
Opposer.
52. Applicant’s product category description contains no restrictions or limitations as to
Applicant’s channels of trade; accordingly, Opposer may assume that Applicant’s Mark, like
Opposer’s Marks, will be used in all accepted channels of trade.
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53. Upon information and belief, Applicant’s BLITZTRANCE Mark is intended to be used on and in connection with goods that are confusingly similar in sight and sound to those of
Opposer.
The Marks Are Similar in Commercial Impression, Appearance, and Sound
54. Applicant’s Mark is likely to be confused with and mistaken for Opposer’s goods developed and marketed under Opposer’s Marks because Applicant’s BLITZTRANCE Mark is confusingly similar in terms of sight and sound to Opposer’s TRANCE Mark.
55. Applicant’s proposed BLITZTRANCE mark is substantially similar to Opposer’s
TRANCE mark in impression, appearance, sound and overall commercial impression.
56. Further, the use of the term BLITZ in Applicant’s BLITZTRANCE Mark is itself confusing. The term “BLITZ” means “lightning” in German and has been used colloquially in
English to refer to a sudden action or instantaneous change. When combined with the Opposer’s
TRANCE Mark, the compound mark BLITZTRANCE is evocative of a sudden transformation of consciousness which many cultures believe may be achieved through a trance-like state.
Because the intended and expressed connotation inherent in the TRANCE Mark owned and maintained by Opposer includes such a transformation, the use of the BLITZTRANCE Mark is even more likely to cause confusion than if another modifier had been added to the TRANCE
Mark.
57. Indeed, a compound mark such as BLITZTRANCE, which contains the word TRANCE as the dominant word and BLITZ as a modifier, may readily be assumed to be a category of the
TRANCE brand, especially among consumers in the marketplace who may be unsophisticated because the product categories are the same or similar.
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58. If Applicant is permitted to register its BLITZTRANCE mark, unjustified and avoidable confusion resulting in damage and injury to Opposer would likely occur. Persons familiar with
Opposer’s Mark, and Opposer’s goods, would likely be confused, be mistaken, or be deceived into the belief that Applicant’s products are associated with, affiliated with, or sponsored by
Opposer. Such confusion would inevitably result in damage to Opposer.
59. Any defect, objection to, or fault found with Applicant’s goods marketed under
Applicant’s Mark, would necessarily reflect on and seriously injure the reputation that Opposer has established for its premium and famous beauty products and cosmetics.
60. Opposer’s customers and the relevant public are likely to misperceive Applicant’s Mark as one of Opposer’s Marks, rather than as a mark of Applicant, and/or believe in error that the goods offered under Applicant’s Mark are offered by, in association with, connected to, or under license from Opposer.
Consumers Would Not Distinguish the Marks on The Basis of Price
61. Consumers will not necessarily distinguish between Applicant’s and Opposer’s marks because the price of cosmetic goods and makeup is low and purchasers of these goods are not necessarily sophisticated.
62. Both Applicant’s and Opposer’s products are offered for sale to the general public and the registration is unrestricted with regard to purchasers or price point. Therefore, the goods could be sold to unsophisticated consumers.
63. In reaching a determination as to consumer sophistication and confusion, the standard of care for purchasing goods is that of the least sophisticated purchaser. Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (citing Stone Lion
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Capital Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 1325, 110 USPQ2d 1157, 1163 (Fed.
Cir. 2014)).
64. As a result, unsophisticated consumers are likely to be confused by the BLITZTRANCE
Mark.
Determination of Whether Marks Are Confusingly Similar
65. As stated in the brief filed by the Examining Attorney’s Appellate Brief in the
MATTETRANCE Appeal, “The well-known factors set forth in In re E. I. du Pont de Nemours
& Co., F.2d 1347, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) govern determinations of whether marks are confusingly similar. The first du Pont factor requires examination of the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re du Pont, 177 USPQ at 567. Similarity in any one of these elements may be sufficient to find the marks confusingly similar. In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014). When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that [consumers] who encounter the marks would be likely to assume a connection between the parties.” In re U.S. Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB
2017) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012).”
66. Further, the overall commercial impression of the marks is confusingly similar because both marks share the word TRANCE, and this term is the dominant element of Applicant’s mark because it is arbitrary. When assessing the likelihood of confusion between compound word
15 marks, although each mark must be considered as a whole, it is appropriate to consider whether a portion of the mark is dominant in creating the mark’s commercial impression. See TMEP
§1207.01(b)(viii); See also In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 750-51
(Fed. Cir. 1985) ("[T]here is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.").
67. In some circumstances, such as present here where both marks incorporate the same word
“TRANCE”, "one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark." Leading Jewelers Guild, 82 U.S.P.Q.2d at 1905; see also In re Nat'l Data Corp., supra. At 1058 (Fed. Cir. 1985).
68. Likewise, the proper test is "whether the marks are sufficiently similar in terms of their commercial impression" such that persons who encounter the marks would be likely to assume a connection between the parties. Leading Jewelers Guild, 82 U.S.P.Q.2d at 1905. In this fact- specific inquiry, if the parties' goods are closely related, as here, an inference of a likelihood of confusion arises. In re Inca Textiles, LLC, 344 Fed. Appx. 603, 606 (Fed. Cir. 2009) (citing
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992)).
69. If two marks for related categories of goods share identical dominant features and the marks, when viewed in their entireties, create similar overall commercial impressions, then confusion is likely. See In re Cynosure, Inc., 90 USPQ2d 1644 (TTAB 2009) (holding
CYNERGY for medical lasers for treatment of the face and skin and SYNERGIE PEEL for medical devices for microdermabrasion, likely to cause confusion, noting “SYNERGIE” is the
16 dominant portion of the cited mark and “PEEL” is insufficient to distinguish the marks where
“PEEL” is descriptive and disclaimed).
70. As applied to trademark registration, reasonable doubt as to the likelihood of confusion is resolved against the later registrant "for the newcomer has the opportunity of avoiding confusion, and is charged with the obligation to do so." see also Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1265 (Fed.Cir.2002); In re Mighty Leaf Tea, 601 F. 3d 1342, 94 USPQ 2d
1257, 1346 (Fed. Cir. 2010).
71. As set forth in the MATTETRANCE Appeal Brief, Courts have found a likelihood of confusion where the word that is likely to be confused is combined with another, completely different word, as the facts in this case present. Sanofi-Aventis v. Advancis Pharmaceutical
Corp., 453 F. Supp. 2d 834 (D. Del. 2006); (Koppers Co. v. Krupp-Koppers GmbH, 517 F. Supp.
836, 844-45 (W.D.Pa.1981) (preliminary injunction granted due to likelihood of confusion between Koppers and Krupp-Koppers marks); Frehling Enters., Inc. v. Ina Select Group, Inc.,
192 F.3d 1330 (11th Cir.1999) (likelihood of confusion found between the marks Ogetti and
Bell' Ogetti).
72. As the Examining Attorney in the MATTETRANCE Appeal notes, incorporating a registered mark within a compound mark does not differentiate or negate the similarity between the two marks. In this case adding the word “BLITZ” to the registered mark “TRANCE” does not overcome a likelihood of confusion under Section 2(d). See In re Corning Glass Works, 229
USPQ 65 (TTAB 1985) (holding CONFIRM for a buffered solution equilibrated to yield predetermined dissolved gas values in a blood gas analyzer, and CONFIRMCELLS for diagnostic blood reagents for laboratory use, likely to cause confusion, noting that the relevant
17 consumers would view the “CELLS” portion of CONFIRMCELLS as merely descriptive);
TMEP §1207.01(b)(iii).
73. In the present case, the marks are identical in-part; the word “TRANCE” in each mark is identical in spelling, and the only visual and aural difference between the marks arise from applicant’s addition of the descriptive word “BLITZ” to Opposer’s TRANCE Mark. The marks are identical in-part due to the shared term “TRANCE”, resulting in the pronunciation of the marks being similar.
Applicant’s Actions Demonstrate An Infringing Use
74. Applicant recognized this likelihood of confusion when, on or about June, 2018,
Applicant’s attorneys contacted Opposer in an attempt to purchase the Opposer’s TRANCE
Mark. In response, counsel for Opposer stated that Applicant would vigorously defend her rights to the TRANCE Mark, and hereby opposes registration of the BLITZTRANCE Mark.
75. Following that exchange, the undersigned received a letter in January from Applicant’s counsel requesting Opposer provide an authorization for use or partial use of the TRANCE Mark in several compound marks owned by Applicant. Prior counsel for Opposer responded in detail on or about February 15, 2019 rejecting any and all infringing uses, stating:
Pat McGrath deliberately and willfully chose to use our client’s TRANCE mark for goods in Class 3, without authorization by our client, and is requesting the authorization to do so well after it filed the applications, received the rejection regarding MATTETRANCE, and began use of the three marks on lipsticks. There is no doubt that a basic trademark search would have found our client’s TRANCE registration. We can only assume that Pat McGrath made a calculated decision to go forward with the three TRANCE marks despite its knowledge of our client’s prior rights. . . .
and
As our client’s registration for the arbitrary mark TRANCE is the only registration on the Principal Register for Class 3 goods, and the mark has been in use for quite a long time, it is a strong mark. Nutri/System, Inc. v. Con-Stan Indus., Inc., 809 F.2d 601, 605 (9th Cir.
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1987). Regarding your allegations concerning our client’s use of the TRANCE mark, as you well know, minimal sales do not constitute abandonment of rights especially if there is no intent not to resume sales. Electro Source, LLC v. Brandess-Kalt-Aetna Grp., Inc., 458 F.3d 931, 938 (9th Cir. 2006).
Pat McGrath’s use of MATTETRANCE, LUXETRANCE and BLITZTRANCE for lipstick is likely to create a mistaken belief that Trance has licensed or otherwise authorized Pat McGrath to use the TRANCE mark. This is the very essence of likelihood of confusion. Moreover, intentional copying creates a presumption that confusion is likely. Mobile Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 258 (2d Cir. 1987). Additionally, as Pat McGrath is a much larger company than our client, reverse confusion may occur here as well. . .
76. Opposer has vigorously defended the TRANCE Mark and has incurred substantial legal fees in such defense.
77. Upon information and belief, Applicant’s attempt to purchase the TRANCE Mark was undertaken as a combined business and legal strategy to usurp the TRANCE Mark. Applicant was well aware that its use of the BLITZTRANCE Mark and other marks incorporating the
TRANCE Mark were infringing uses and yet proceeded to register and attempt to circumvent
Opposer’s legal rights to the mark.
78. Applicant’s filing of U.S. Trademark Application Serial No. 88075517 is without license, authorization, or permission from Opposer.
79. Registration of Applicant’s Mark will further injure Opposer because such mark may disparage Opposer and Opposer’s Marks, and/or bring them into contempt or disrepute.
80. Registration of Applicant’s Mark would give Applicant prima facie evidence of the validity and ownership of Applicant’s Mark, and of Applicant’s exclusive right to use its
TRANCE mark, all without legal or factual justification and to the detriment of Opposer.
81. Applicant’s use and registration of BLITZTRANCE Mark is likely to cause confusion, deception, and/or mistake with Opposer’s TRANCE Mark.
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82. If allowed to proceed, Applicant’s use and registration of the BLITZTRANCE Mark will interfere with Opposer’s TRANCE Mark, and damage Opposer, its business and its goodwill.
Third Ground For Opposition Dilution
83. Opposer re-alleges and incorporates herein by reference the allegations in each and every previous paragraph as if fully set forth herein.
84. Prior to the application filing date for Applicant’s Mark, Opposer’s TRANCE Mark had become famous through advertising and marketing and sales for Opposer’s goods, and the public has come to associate Opposer’s goods with the TRANCE trademark and trade name.
85. Accordingly, Opposer’s Marks have become distinctive and famous and, therefore, are subject to the protections and remedies of Section 43(c) of the Lanham Act, 15 U.S.C.
§1125(c).
86. Registration of Applicant’s Mark will also injure Opposer by causing a likelihood of dilution, through blurring and tarnishment, of the distinctive quality of Opposer’s Marks.
87. In view of the foregoing reasons, the grant of a registration for Applicant’s Mark, as sought in the application opposed herein, should be denied as registration would be contrary to the provisions of Section 2(d) and Section 43(c) of the Lanham Act, 15 U.S.C. §1052(d) and 15
U.S.C. §1125(c), respectively; and Opposer believes that it would be damaged thereby.
Count 4
Fourth Ground For Opposition Fraud on the USPTO
88. Opposer re-alleges and incorporates herein by reference the allegations in each and every previous paragraph as if fully set forth herein.
89. Upon information and belief, when Applicant made its initial Trademark/Service
20
Mark Application, Principal Register filings for the BLITZTRANCE Mark (Serial No.
88075517) on or about August 13, 2017 (Exhibit B) it made several material misrepresentations, including,
• stating that it believes that the applicant is the owner of the
trademark/service mark sought to be registered;
• “[t]o the best of signatory’s knowledge and belief, no other persons,
except, if applicable, concurrent users, have the right to use the mark in
commerce, either in identical form or in such near semblance as to be
likely, when used on or in connection with the goods/services of such
other persons, to cause confusion or mistake”;
• “[t]o the best of the signatory's knowledge and belief, the facts recited in
the application are accurate”; and
• “[t]o 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”
90. Section 2(d) of the Trademark Act bars the registration of an applied-for mark which so resembles a registered mark that it is likely to cause confusion as to the source of the goods or services of the applicant and registrant.
91. The affirmative representations made by Applicant in the applications for registration of Applicant’s Marks, as well as the failure to disclose the existence of the
TRANCE Mark constitute material misrepresentations offered to mislead, misinform
21 and defraud the TTAB about their ability to register Applicant’s Marks.
92. Upon information and belief, the referenced statements were made knowingly and with knowledge of the Opposer’s prior registration and use in commerce of the
TRANCE Mark.
93. Opposer will be damaged in name, reputation and financially if Applicant is permitted to register the BLITZTRANCE Mark.
CONCLUSION
Applicant’s mark for BLITZTRANCE is similar in sound and appearance and highly similar in commercial impression to Opposer’s TRANCE Mark. Applicant’s goods are related to those of the Opposer. Application of the governing law to these facts require a finding under
Section 2(d) of the Trademark Act that the applied-for mark so resembles Opposer’s Mark that it is likely to cause confusion as to the source of the goods of Applicant and Opposer. Any doubt as to the likelihood of confusion determination is to be resolved in the favor of the Opposer-
Registrant. TMEP §1201.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., supra. at
1265, 62 USPQ2d at 1003 (Fed. Cir. 2002).
WHEREFORE, by its undersigned attorney, Opposer respectfully requests that this
Notice of Opposition be sustained, and that registration of U.S. Trademark Application Serial
Number 88075517 for the BLITZTRANCE Mark be refused pursuant to Section 2(d) of the
Trademark Act, 15 U.S.C. §1052(d), and for all the other reasons set forth herein.
22
Dated: New York, NY June 24, 2019
Respectfully submitted,
/John T. Maher, Esq./
Law Office of John T. Maher Attorneys for Opposer Janna S. Jackson (Sheehan) 105 E. 122nd St. New York, NY 10035 646 675 8909 [email protected]
23
CERTIFICATE OF SERVICE
I, John T. Maher, Esq., hereby certify that a true and complete copy of the foregoing Notice of Opposition has been served on Applicant’s attorneys of record Lynn E. Rzonca, Esq. and Jessica Watkins, Esq. Lynn E. Rzonca, Esq., Ballard Spahr LLP, 1755 Market Street, 51st Floor 1, Philadelphia, PA 19103-7599 by emailing said copy on this 24rd day of June, 2019 to the attorneys for BLITZTRANCE at the following email addresses:
[email protected] [email protected]
/John T. Maher, Esq./ Law Office of John T. Maher Attorneys for Opposer Janna S. Jackson (Sheehan) 105 E. 122nd St. New York, NY 10035 646 675 8909 [email protected]
24
To: Pat McGrath Cosmetics LLC ([email protected]) Subject: U.S. TRADEMARK APPLICATION NO. 87246413 - MATTETRANCE - BSK3988 - EXAMINER BRIEF Sent: 4/30/2019 3:34:40 PM Sent As: [email protected] Attachments: Attachment - 1
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
U.S. APPLICATION SERIAL NO. 87246413
MARK: MATTETRANCE *87246413*
CORRESPONDENT ADDRESS: GENERAL TRADEMARK INFORMATION: Geza C. Ziegler http://www.uspto.gov/trademarks/index.jsp Jr. Ziegler IP Law Group TTAB INFORMATION: LLC. http://www.uspto.gov/trademarks/process/appeal/index.jsp 55 Greens Farms Road Westport CT 06880
APPLICANT: Pat McGrath Cosmetics LLC
CORRESPONDENT’S REFERENCE/DOCKET NO: BSK3988 CORRESPONDENT E- MAIL ADDRESS:
EXAMINING ATTORNEY’S APPEAL BRIEF
As a preliminary matter of the ex parte adjudication of the instant application, the examining attorney requests the Board to consider the following motion. MOTION FOR ACCEPTANCE OF LATE FILED BRIEF
Due to an internal miscommunication regarding the filing deadline of the examining attorney’s appeal brief, the examining attorney respectfully requests the Board to accept this late filed appeal brief and give due consideration to the final decision of the examining attorney. 37 C.F.R. 2.142(b)(1); TBMP §1203.02(b). In the event the Board declines to consider the examining attorney’s brief, the examining attorney requests that the Board decide the appeal based on the examining attorney’s arguments contained in the prosecution record. See In re Tennessee Walking Horse Breeders’ and Exhibitors’ Association , 223 USPQ 188, 188 n.3 (TTAB 1984); TBMP §1203.02(b).
INTRODUCTION
Applicant has appealed the trademark examining attorney’s refusal to register Pat McGrath Cosmetics LLC’s (hereinafter, “applicant”) trademark, MATTETRANCE, in standard characters, on the ground that the mark so resembles the registered mark TRANCE, in standard characters, as to be likely to create confusion within the meaning of Section 2(d) of the Trademark Act, 15 U.S.C. §1052.
I. FACTS
On November 23, 2016, applicant filed an intent-to-use application to register the mark MATTETRANCE on the Principal Register for
“ Cosmetics; makeup; makeup preparations; cosmetic preparations for skin” in International Class 3.
On January 25, 2017, the examining attorney issued a non-final Office action, refusing to register the mark under Section 2(d) of the Trademark Act due to the likelihood of confusion with the registered mark TRANCE, in standard characters, owned by Janna S. Jackson
(hereinafter, “registrant”).
Applicant filed a response on July 25, 2017, providing evidence and arguments in favor of registration.
The trademark examining attorney issued a final Office action on August 18, 2017, maintaining the refusal to register applicant’s mark under Section 2(d).
On February 20, 2018, applicant commenced the instant appeal and filed a request for reconsideration, which was subsequently denied by the examining attorney on March 9, 2018.[1] The Board was notified to resume the appeal.
On July 16, 2018, the examining attorney submitted a motion to remand, requesting jurisdiction to correct a procedural defect unrelated to any issue in the instant appeal, concerning applicant’s revocation and appointment of counsel submitted on June 6, 2017.
On July 19, 2018, the examining attorney issued a 30-day letter requiring applicant to submit a properly signed revocation and appointment of counsel form and ratify previously submitted correspondence by the improperly appointed counsel.
On August 16, 2018, applicant submitted a properly executed revocation and appointment of counsel form and provided ratification of previously submitted correspondence.
On November 4, 2018, the examining attorney issued a continuing final Office action, indicating the procedural issues had been resolved, and notifying the Board to resume the appeal.
II. ARGUMENT
A. “MATTETRANCE” IS CONFUSINGLY SIMILAR TO THE MARK “TRANCE” AND THE APPLIED-FOR AND REGISTERED GOODS ARE CLOSELY RELATED UNDER SECTION 2(d) OF THE TRADEMARK ACT
Section 2(d) of the Trademark Act bars the registration of an applied-for mark which so resembles a registered mark that it is likely to cause confusion as to the source of the goods or services of the applicant and registrant. See 15 U.S.C. §1052(d). Determining likelihood of confusion is made on a case-by-case basis by applying the factors set forth in In re E. I. du Pont de Nemours & Co., F.2d 1347, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973). Although the weight given to the relevant du Pont factors varies, the similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, as well as the relatedness of the goods as described in the application and registration, are the relevant factors. See In re lolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010).
1. APPLICANT’S GOODS ARE RELATED AND IDENTICAL IN-PART TO THE GOODS IN THE CITED REGISTRATION
Applicant’s goods, consisting of “ Cosmetics; makeup; makeup preparations; cosmetic preparations for skin” in International Class 3, are related and identical in-part to registrant’s goods, comprising “Essential oils for personal use; cosmetics; skin care products, namely, skin lotions, creams, balms and cleansers; hair care products, namely, conditioners.” That not all of applicant’s and registrant’s goods are identical does not diminish the confusing similarity of the marks. The compared goods need not be identical or even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715,
1724 (TTAB 2007)); TMEP §1207.01(a)(i).
It should be noted at the outset that applicant’s appeal includes no evidence or arguments in opposition to the relatedness of the goods contained in the application and cited registration.
Applicant’s and registrant’s goods are identical in-part because they both contain “cosmetics.” The application also contains “cosmetic preparations for skin,” which is encompassed by registrant’s “cosmetics.” It is requested that the Board take judicial notice of the attached dictionary evidence from Merriam-Webster.com.[2] The evidence from Merriam-Webster.com defines “makeup” to mean, “cosmetics (such as lipstick, mascara, and eye shadow) used to color and beautify the face.” This dictionary evidence shows the word “makeup” is broadly defined to include cosmetics used to color and beautify the face. Applicant’s entries for “makeup” and “makeup preparations,” therefore, are sufficiently broad to include registrant’s “cosmetics” and are thus related for purposes of likelihood of confusion.
In addition to the above dictionary evidence relating applicant’s “makeup” to registrant’s “cosmetics,” the third-party marketplace evidence of record indicates that the goods of both applicant and registrant are related because the same entity commonly provides cosmetics, makeup, and skin and hair care products under the same mark. Website evidence shows Neutrogena® offering for sale both skin and hair care products under its mark. (August 18, 2017 Final Office Action, TSDR p. 44-52). L’Oreal ® provides cosmetics, makeup, and hair care products. Id. at 53-63. Burt’s Bees® provides makeup, cosmetics, and hair care products. Id. at 65-66. This evidence demonstrates that the recited goods, which are predominantly applied to the face and head to improve one’s appearance, are related and third-parties commonly offer the goods for sale under the same trademark. Additionally, the goods of the parties have no restrictions as to nature, type, channels of trade, or classes of purchasers and are “presumed to travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)).
The record also contains evidence from the USPTO’s X-Search database consisting of thirteen third-party marks from ten unique registrants registered for use in connection with the same or similar goods as those of both applicant and registrant. (August 18, 2017 Final Office Action, TSDR p. 2-43). For convenience, representative samples of goods from the third-party registrations are presented below in table form. This evidence further shows that the goods of applicant and registrant, namely, cosmetics, cosmetic preparations, makeup, makeup preparations, skin care products, and hair care products, may emanate from a single source under a single mark. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015). Registration Mark Owner Goods No. Class 3: Cosmetics; skin care products, namely, skin creams, anti-aging creams and lotions, lotions, cleansers, clarifiers, moisturizers, non-medicated skin serum, skin masks, skin OVERNIGHT Amarte USA 4725076 toners, non-medicated skin care preparations for topical EXPRESS Holdings, Inc. application, makeup, foundation, beauty and blemish cream, shampoos, hair conditioners, hair care preparations, deodorants and antiperspirants, perfumes, and facial masks. Class 3: Cosmetics, namely, foundations, concealers, face SKIN Brevena powders, eye makeup, and lipsticks; … perfumed non-medicated MATTERS. 4867938 Laboratories, hair and skin care preparations, essential oils for personal use; LOVE YOUR LLC skin moisturizers; body and face creams, lotions, gels, and oils; SKIN. non-medicated facial cleansers; …. Class 3: Body, skin and beauty care products containing organic ingredients, namely, body and beauty care cosmetics; Beauty care preparations, namely, topical skin creams, lotions, skin and body creams, cleansers, toners, moisturizers and serums; … Cosmetic creams for skin care; Cosmetic Natural GOPURE preparations for body care; Cosmetic preparations for skin 4894893 Lifestyle NATURALS renewal; Cosmetics; Face and body beauty creams; Face and Brands, Inc. body creams; Face and body lotions; Face and body milk; Lotions for body, face, and skin; Make-up products for the face and body, namely, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils; … and Essential oils for skin and hair care. Class 3: Skin care products, namely, lotions, skin creams, face creams, face fresheners, facial masks, facial cleansers, facial wash, facial toners, non-medicated skin serums, eye gels, ROYAL T Gadel Trades 4914372 moisturizers; … Cosmetics; Body lotion; Body scrub; Foot CARE & More LLC lotion; Hand lotion; Moisture lotion for the skin; Skin moisturizers; Skin lotions; Skin serums; Facial scrubs; Facial toners; Beauty serums; … Makeup; …. Class 3: Cosmetics, namely, foundations, concealers, face powders, eye makeup, and lipsticks; … perfumed non-medicated hair and skin care preparations, essential oils for personal use; Brevena skin moisturizers; body and face creams, lotions, gels, and oils; Leaf design 4914635 Laboratories, non-medicated facial cleansers; non-medicated skin care LLC products, namely, skin cleansers, skin exfoliants, non- medicated skin hydrators, anti-aging lotions and creams, age spot reducing creams, spot remover, wrinkle removing skin care preparations, facial masks, and eye cream. Class 3: … body and beauty care cosmetics; … cosmetic preparations for body care; deodorants for body care; face and body creams; face and body lotions; face and body milk; …lotions for face and body care; make-up products for the face and body, namely, lipstick, mascara and blush; non-medicated body soaks; … depilatory creams; exfoliant creams; eye cream; facial creams; fair complexion cream; … lip cream; … non- medicated skin creams; … skin cleansing cream; skin creams in liquid and in solid form; skin lightening creams; skin whitening creams; vanishing cream; topical herbal cream for firming and enhancing breasts; wrinkle resistant cream; eye compresses for HEALTH cosmetic purposes; eye gels; eye liner; eye makeup; eye BEAUTY 4914915 USP, Inc. makeup remover; eye pencils; eye shadow; eyes make-up; eyes LIFE pencils; eye-shadow; eyeliners; … facial makeup; foundation makeup; makeup; theatrical makeup; facial beauty masks; facial cleansers; facial cleansing milk; facial concealer; facial emulsions; facial masks; … blush; rouge; skin creams; body lotions; skin cleansing lotions; skin cleansers; skin moisturizers; skin toners; cosmetic compacts; compacts containing makeup; eye concealers; skin concealers; cosmetic pencils; face powders; powder foundations; foundation make-up; lip gloss; lip liners; lipsticks; mascara; … skin care preparations, namely, soaps, cleansers, toners, oils, creams, moisturizers, and masks; … essential oils; … cosmetic oil mists; cosmetic oil gels; cosmetic oil balms; … non-medicated skin care preparations; …. Class 3: …beauty creams; beauty creams for body care; body cream; body cream soap; body mask cream; cleansing creams; cold cream; cosmetic creams; … concealers specifically for skin, face, and body; cosmetic creams for skin care; cosmetic preparations for skin renewal; cosmetic preparations in the form of aerosols for skin care; cosmetic preparations for eye lashes; … lotions specifically for skin, hair, face, and body; … body and beauty care cosmetics; … cosmetic preparations for body care; deodorants for body care; face and body creams; face and body lotions; face and body milk; liquid soaps for hands, face, and body; lotions for face and body care; make-up products for the face and body, namely, lipstick, mascara and blush; non- medicated body soaks; … eye cream; facial creams; … hand creams; lip cream; nail cream; night cream; … non-medicated skin creams; perfumed creams; … skin lightening creams; skin whitening creams; vanishing cream; topical herbal cream for firming and enhancing breasts; wrinkle resistant cream; eye HBL compresses for cosmetic purposes; eye gels; eye liner; eye HEALTH 4914916 USP, Inc. makeup; eye makeup remover; eye pencils; eye shadow; eyes BEAUTY make-up; eyes pencils; eye-shadow; eyeliners; … facial makeup; LIFE foundation makeup; makeup; theatrical makeup; facial beauty masks; facial cleansers; facial cleansing milk; facial concealer; facial emulsions; facial masks; facial washes; bath gels; beauty masks; blush; rouge; skin creams; body lotions; skin cleansing lotions; skin cleansers; skin moisturizers; skin toners; cosmetic compacts; compacts containing makeup; eye concealers; skin concealers; cosmetic pencils; face powders; powder foundations; foundation make-up; lip gloss; lip liners; lipsticks; mascara; nail enamels; nail polish base coats; … skin care preparations, namely, soaps, cleansers, toners, oils, creams, moisturizers, and masks; … essential oils; … cosmetic oil mists; cosmetic oil gels; cosmetic oil balms; … non-medicated skin care preparations; … skin care products, namely, non-medicated skin care serums; skin clarifiers; skin conditioners; skin emollients; skin gels for accelerating, enhancing, or extending tans; skin masks; skin moisturizer masks; skin polishing preparations; …. Class 3: … skin care products, namely, cleansing creams, organic cleansing bars, facial bar soaps, facial moisturizers, facial scrubs, revitalizing facial masks, eye creams, eye gels, Mineral toners; skin lighteners, moisturizers, skin creams, night cream MINERAL Fusion and lip balms; … essential oils, namely, essential oils for use in 5010964 FUSION Natural perfumery, essential oils for serums, essential oils for lotions, Brands LLC essential oils for cosmetics, essential oils for hair lotions, essential oils for use in cleansers, essential oils for use in toners, essential oils for use in scrubs, essential oils for use in lipstick, lip balm and lip gloss. Class 3: Skin care products, namely, skin lotions, skin Maij ointments, sunscreen, shave lotions, shave balms, skin gel, anti- WE=LV2 5027496 Entertainment aging creams, anti-aging serums; cosmetics, color cosmetics, LLC makeup preparations, lipsticks; …. Class 3: Cosmetics and skin care products, namely, loose and pressed face and body powders; eye shadows; mascara; eye Iredale liner; eyebrow wax; eyelid primer; … lipsticks; lip gloss; non- BEAUTY Mineral medicated lip plumper; lip stain; lip moisturizer; lip and eye WITH 5027906 Cosmetics, pencils; skin concealers; foundation make-up; … cheek BRILLIANCE Ltd highlighter; blush; … makeup kits comprised of eye shadow, foundation, blush, concealer, lip gloss, lipstick, bronzer, powder, facial primer, and hydration spray; …. Class 3: Women's cosmetics, namely, fluid makeup, compact, powder blush, lipstick, lip pencil, lip gloss, lip shimmer, eye BEAUTY pencils, eye shadows, eyebrow pencil, eyeliner, makeup FOR YOUR 5032265 Zman, Inc. remover, mascara, and nail color; … Skin care products, namely, SKIN TONE skin creams, skin lotions, skin cleansers, astringents for cosmetic purposes; Facial scrubs, anti-aging creams, lotions, gels, and moisturizers; …. Class 3: … cosmetics; cosmetic pencils; lip cream; … eye creams; non-medicated facial care products, namely, facial cleansers, skin toners, facial exfoliants and scrubs, facial Ty Loke, TYRA 5186828 creams, facial moisturizers face wash and facial lotions; … skin LLC moisturizers; skin moisturizer masks; skin conditioners; hand creams; massage oils; essential oils for personal use; … nail polish; … skin cleansers; …. Class 3: … non-medicated topical skin care products, namely, creams, aromatic creams, ointments, gels, toners, lotions, Ty Loke, LIP MODEL 5209777 aromatic creams and oils; skin moisturizers; skin moisturizer LLC masks; skin conditioners; hand creams; massage oils; essential oils for personal use; … nail polish; ….
For these reasons, the goods to be used in connection with applicant’s mark are related to the goods identified in the cited registration.
2. “MATTETRANCE” AND “TRANCE” ARE CONFUSINGLY SIMILAR IN COMMERCIAL IMPRESSION, APPEARANCE, AND SOUND
Applicant’s mark is MATTETRANCE in standard character form whereas registrant’s mark is TRANCE in standard character form.
The first du Pont factor requires examination of the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re du Pont, 177 USPQ at 567. Similarity in any one of these elements may be sufficient to find the marks confusingly similar. In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that [consumers] who encounter the marks would be likely to assume a connection between the parties.” In re U.S. Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB 2017) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
The overall commercial impression of the marks is confusingly similar because both marks share the word “TRANCE”, and this term is the dominant literal element of applicant’s mark because it is arbitrary. When assessing the likelihood of confusion between compound word marks, although each mark must be considered as a whole, it is appropriate to consider whether a portion of the mark is dominant in creating the mark’s commercial impression. See TMEP §1207.01(b)(viii); See also In re Nat’l Data Corp. , 753 F.2d 1056, 1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985). If two marks for related goods share identical dominant features and the marks, when viewed in their entireties, create similar overall commercial impressions, then confusion is likely. See In re Cynosure, Inc., 90 USPQ2d 1644 (TTAB 2009) (holding CYNERGY for medical lasers for treatment of the face and skin and SYNERGIE PEEL for medical devices for microdermabrasion, likely to cause confusion, noting “SYNERGIE” is the dominant portion of the cited mark and “PEEL” is insufficient to distinguish the marks where “PEEL” is descriptive and disclaimed).
The term “MATTE” is defined to mean “having a dull finish.” (January 25, 2017 Office Action, TSDR p. 3). In relation to applicant’s recited goods comprising cosmetics and makeup, the evidence of record demonstrates the word “MATTE” as describing a characteristic of the goods in that they eliminate shine on a user’s skin. The evidence of record from cosmetics manufacturers such as L’Oreal ®, Mac Cosmetics®, Maybelline®, Kylie Cosmetics®, BH cosmetics®, and various entities selling their makeup and cosmetics through the department store retailer Target® each use the term “MATTE” to describe goods which impart a dull finish on the user’s skin. (August 18, 2017 Final Office Action,
TSDR p. 53-58; March 9, 2018 Denial of Request for Reconsideration, TSDR p. 3-6, 10-11, 13-17, 19, and 21). Furthermore, the evidence of record shows applicant using their mark MATTETRANCE on a webpage in association with cosmetic goods, and in describing the goods indicate they “deliv[er] a mesmerizingly modern matte finish.” (February 20, 2018 Request for Reconsideration, TSDR p. 15). Cumulatively, the evidence shows that the term “MATTE” is descriptive of the applied-for goods, thereby rendering the word “TRANCE” the dominant literal element in applicant’s mark.
The record includes a definition of the term “TRANCE” from Ahdictionary.com, which defines the term to mean “a hypnotic, cataleptic, or ecstatic state.” Id. at 2. Since “TRANCE” is not descriptive of any quality, characteristic, feature, use, or purpose of either applicant’s or registrant’s goods, the word is arbitrary. The record shows that registrant’s mark TRANCE is the only such term registered for Class 3 cosmetic goods, a further indication of the conceptual strength of the mark. (March 9, 2018 Denial of Request for Reconsideration, TSDR p. 2).
The presence of the dominant word “TRANCE” in each mark results in the marks having similar overall commercial impressions. The commercial impression of registrant’s mark for TRANCE is engendered solely by the meaning an average consumer would ascribe to the term. An average consumer would associate the mark TRANCE with its dictionary definition, which as defined above is essentially a “hypnotic state.” With regard to applicant’s mark, a consumer would understand the word “MATTE” as having a meaning consistent with its definition, which is “dull.” Accordingly, a consumer would regard the word “MATTE” as being merely descriptive of a characteristic of the applied-for goods. Since the word “TRANCE” is the dominant term in applicant’s mark, a consumer would also perceive the commercial impression of applicant’s mark as being that of a “hypnotic state.” Comparing the commercial impressions of both marks, therefore, shows each to be that of a “hypnotic state,” resulting in the marks being confusingly similar.
The appearance of the marks is also confusingly similar because the marks share a literal element, making them identical in-part. Applicant’s mark for MATTETRANCE fully encompasses registrant’s mark for TRANCE. This is evident by the fact that applicant’s mark is comprised of the individual words “MATTE” and “TRANCE” compounded together, and registrant’s mark is solely the word TRANCE. Adding a term to a registered mark (e.g., adding the word “MATTE” to the registered mark “TRANCE”) generally does not obviate the similarity between the compared marks, as in the present case, nor does it overcome a likelihood of confusion under Section 2(d). See In re
Corning Glass Works, 229 USPQ 65 (TTAB 1985) (holding CONFIRM for a buffered solution equilibrated to yield predetermined dissolved gas values in a blood gas analyzer, and CONFIRMCELLS for diagnostic blood reagents for laboratory use, likely to cause confusion, noting that the relevant consumers would view the “CELLS” portion of CONFIRMCELLS as merely descriptive); TMEP §1207.01(b)(iii). Thus, in the present case, the marks are identical in-part; the word “TRANCE” in each mark is identical in spelling, and the only visual and aural difference between the marks arises from applicant’s addition of the descriptive word “MATTE” to registrant’s mark “TRANCE”.
The similarity in structure of the marks also results in them having similarity with respect to sound. The marks are identical in-part due to the shared term “TRANCE”, resulting in the pronunciation of the marks being similar.
Applicant presents several arguments against any confusing similarity between the marks. Applicant asserts that by combining two unrelated terms, “MATTE” and “TRANCE”, an arbitrary word has been created with no dictionary meaning and no descriptiveness with regard to any of applicant’s goods. (9 TTABVUE, 12-14). This argument is not persuasive and is undercut by applicant’s own evidence. The evidence shows applicant’s mark used in direct association with descriptive language conveying the “MATTE” characteristic of the applied-for goods. This is evident in Google® search results informing searchers “MATTETRANCE Lipstick sensually adorns lips in a lightweight, creamy matte finish,” an article from Glamour® lauding “MATTETRANCE, a collection of nine deeply pigmented matte lipsticks…,” and a Sephora® retail page describing the goods as “A richly pigmented lipstick that adorns lips in a lightweight veil of opaque color for a modern, matte finish” and also showing a product listing for LUXETRANCE lipstick. (February 20, 2018 Request for Reconsideration, TSDR p. 16-36). Applicant’s evidence shows the mark used together with product descriptions informing consumers the applied-for goods have a “MATTE” characteristic, thus creating the nexus between the characteristic being described and the word “MATTE” in the mark. Applicant has provided no convincing explanation as to why the word “MATTE” in “MATTETRANCE” would not be understood by consumers as describing the goods. Applicant has also provided no basis or explanation for how MATTETRANCE is transformative such that the mark as a whole creates a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods. The word “MATTE” is only saved from a disclaimer requirement by virtue of being unitary when compounded with the word “TRANCE”.
Applicant next argues that the marks lack confusing similarity because visual differences in the marks alone preclude any likelihood of confusion. Relying on Kellogg Co. v. Pack’Em Enters., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991), applicant states the facts concerning the instant application fit squarely within the Kellogg analysis and command a finding of lack of confusing similarity due to differences in appearance between the marks. (9 TTABVUE, 15-16). Applicant’s argument is not persuasive because the marks under consideration in Kellogg bear no relation to the marks at hand. In Kellogg, the marks at issue were applicant’s mark for FROOTEE ICE with an elephant design and registrant’s mark for FROOT LOOPS in plain lettering. Kellogg, 951 F.2d at 331-32. The Board found no likelihood of confusion between the marks, noting applicant’s mark had a design element and stylized wording, whereas registrant’s mark did not, the marks shared no common words, and applicant used “FROOTEE” as a misspelling of “fruity” while registrant used “FROOT” as a misspelling of “fruit.” Id. at 332. The marks in this appeal have little resemblance to those in Kellogg: both marks are in standard characters and no designs are present, neither contains misspelled words, both marks contain the identical arbitrary word (i.e., “TRANCE”), and applicant’s mark merely adds a highly descriptive word (i.e., “MATTE”) to the registered mark. In addition, neither of the marks at issue in Kellogg were inherently distinctive (“FROOTEE ICE” disclaimed, and “FROOT LOOPS” registered pursuant to Section 2(f)), whereas registrant’s mark for TRANCE is inherently distinctive. These facts distinguish Kellogg from the case at hand.
With regard to the commercial impression of registrant’s mark, applicant argues that the word “TRANCE” suggests “a state of mind or well-being, as opposed to a look or appearance,” resulting in a commercial impression distinguishable from their mark. (9 TTABVUE, 16-17). For support, applicant refers to the specimens of use submitted by registrant (February 20, 2018 Request for Reconsideration, TSDR p. 9-14), and posits they suggest “a state of mind or well-being, particularly with respect to essential oils.” Applicant’s argument is not persuasive because it cannot be assumed that registrant’s specimens depict how the mark is displayed with respect to other types of goods indicated in the registration. When a registration specifies more than one item of goods in a class, it is not usually necessary to provide a specimen for each product. See TMEP §904.01(a). Furthermore, while du Pont does allow for consideration of “any other established fact probative of the effect of use,” here it is the commercial impression of the marks themselves which provides the greatest basis for a finding of confusing similarity.
For these reasons, applicant’s arguments are not persuasive, and the marks are confusingly similar with regard to commercial impression, appearance, and sound.
3. CONSUMERS OF COSMETIC AND MAKEUP PRODUCTS ARE NOT NECESSARILY SOPHISTICATED PURCHASERS AND THUS WOULD NOT DISTINGUISH THE MARKS “MATTETRANCE” AND “TRANCE” ON THE BASIS OF PRICE
Consumers will not necessarily distinguish between applicant’s and registrant’s marks because the price of cosmetic goods and makeup is low and purchasers of these goods are not sophisticated. Applicant argues that its goods possess a price point that will cause consumers to differentiate and distinguish applicant’s lipstick from lower priced lipsticks. (9 TTABVUE, 17). Applicant submits that the $38.00 price of its lipstick would give consumers pause when choosing between similar products because third-party lipsticks can sell for as low as $2.99. (February 20, 2018 Request for Reconsideration, TSDR p. 15; March 9, 2018 Denial of Request for Reconsideration, TSDR p. 14-16). Applicant contends that given the popularity of its products, a consumer would readily perceive the distinctions between products sold under different marks and make an informed and sophisticated choice. (9 TTABVUE, 18).
Applicant’s arguments here are not persuasive because the standard of care for purchasing goods is that of the least sophisticated purchaser. Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (citing Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 1325, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014)). As applied to the facts at hand, the least sophisticated purchaser consists of those purchasing lipstick at the price of $2.99. These purchasers are the kind that impulsively buy lipstick because they like the color or effect, or want to look attractive. Whereas purchaser sophistication may tend to minimize the likelihood of confusion between marks, impulse purchases of inexpensive items may tend to have the opposite effect. See Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1367, 73 USPQ2d 1689, 1695 (Fed. Cir. 2005). Additionally, both applicant’s and registrant’s products are offered for sale to the general public and the registration is unrestricted with regard to purchasers or price point. The goods could be sold to unsophisticated consumers, suggesting that purchases may be made with no greater than ordinary care or consideration. See In re Louis Vuitton Malletier, Serial No. 79165769 (February 2, 2018) [not precedential] (finding purchaser sophistication lacking with regard to applicant’s $240 cosmetics versus registrant’s $11 cosmetics where the goods are sold to the general public with no restriction on purchasers or price). These reasons, coupled with the evidence of record, demonstrate that purchasers of lipstick exercise only ordinary care or consideration and are not sophisticated purchasers.
III. CONCLUSION
Applicant’s mark for MATTERANCE is similar in sound and appearance and highly similar in commercial impression to registrant’s mark for TRANCE. The evidence of record also shows that applicant’s goods are related to those of the registrant. Taken together, these facts require a finding under Section 2(d) of the Trademark Act that the applied-for mark so resembles registrant’s mark that it is likely to cause confusion as to the source of the goods of applicant and registrant. Any doubt as to the likelihood of confusion determination is to be resolved in the favor of the registrant. TMEP §1201.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002).
For the foregoing reasons, the refusal to register pursuant to Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d) should be affirmed .
Respectfully submitted,
Daniel Donegan /Daniel Donegan/ Trademark Examining Attorney Law Office 104 571-270-0455 [email protected]
Zachary Cromer Managing Attorney Law Office 104
[1] The application was reassigned to the undersigned examining attorney after the appeal was instituted. [2] Pursuant to TMBP §1208.04, the Board may take judicial notice of dictionary definitions, including online dictionaries which exist in printed format or that have regular fixed editions. See In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB 2016) (taking judicial notice of definitions from Merriam-Webster Online Dictionary at merriam-webster.com).
To: Pat McGrath Cosmetics LLC ([email protected]) Subject: U.S. TRADEMARK APPLICATION NO. 87246413 - MATTETRANCE - BSK3988 - EXAMINER BRIEF Sent: 4/30/2019 3:34:41 PM Sent As: [email protected] Attachments:
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
IMPORTANT NOTICE REGARDING YOUR U.S. TRADEMARK APPLICATION
USPTO EXAMINING ATTORNEY’S APPEAL BRIEF HAS ISSUED ON 4/30/2019 FOR U.S. APPLICATION SERIAL NO. 87246413
Please follow the instructions below:
(1) TO READ THE APPEAL BRIEF: Click on this link or go to http://tsdr.uspto.gov/, enter the U.S. application serial number, and click on “Documents.”
The Examining Attorney’s Appeal Brief 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) FILING A REPLY BRIEF: You may file a reply brief within twenty (20) days of 4/30/2019, the date from which the Examining Attorney’s Appeal Brief issued.
Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail a reply brief because this mailbox is not monitored. Instead, the Trademark Trial and Appeal Board requires that you file a reply brief online using the Electronic System for Trademark Trials and Appeals (ESTTA) located at http://estta.uspto.gov. A reply brief transmitted through ESTTA must be received before midnight Eastern Time of the last day of the reply period.
(3) QUESTIONS: For technical assistance in accessing or viewing the appeal brief in the Trademark Status and Document Retrieval (TSDR) system, please e-mail [email protected].
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 02/28/2021) Trademark/Service Mark Application, Principal Register
Serial Number: 88075517 Filing Date: 08/13/2018
The table below presents the data as entered.
Input Field Entered SERIAL NUMBER 88075517 MARK INFORMATION
*MARK BLITZTRANCE
STANDARD CHARACTERS YES USPTO-GENERATED IMAGE YES LITERAL ELEMENT BLITZTRANCE 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 Pat McGrath Cosmetics LLC *STREET 126 Fifth Avenue *CITY New York
*STATE (Required for U.S. applicants) New York
*COUNTRY United States
*ZIP/POSTAL CODE (Required for U.S. and certain international addresses) 10011 LEGAL ENTITY INFORMATION TYPE limited liability company STATE/COUNTRY WHERE LEGALLY ORGANIZED New York GOODS AND/OR SERVICES AND BASIS INFORMATION INTERNATIONAL CLASS 003 Cosmetics; Makeup; Lipsticks; Lip cosmetics; Lip gloss; *IDENTIFICATION Blush; Highlighters; Eye cosmetics; Eyeshadow; Eyeshadow palettes. FILING BASIS SECTION 1(b) ATTORNEY INFORMATION NAME Geza C. Ziegler ATTORNEY DOCKET NUMBER BSKPM5035UST FIRM NAME Ziegler IP Law Group, LLC STREET 55 Greens Farms Road CITY Westport STATE Connecticut COUNTRY United States ZIP/POSTAL CODE 06880 PHONE 203-659-0388 FAX 2032225299 EMAIL ADDRESS [email protected] AUTHORIZED TO COMMUNICATE VIA EMAIL Yes OTHER APPOINTED ATTORNEY Joseph V. Gamberdell, Jr. CORRESPONDENCE INFORMATION NAME Geza C. Ziegler FIRM NAME Ziegler IP Law Group, LLC STREET 55 Greens Farms Road CITY Westport STATE Connecticut COUNTRY United States ZIP/POSTAL CODE 06880 PHONE 203-659-0388 FAX 2032225299 *EMAIL ADDRESS [email protected]; [email protected] *AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION APPLICATION FILING OPTION TEAS RF NUMBER OF CLASSES 1 APPLICATION FOR REGISTRATION PER CLASS 275 *TOTAL FEE DUE 275 *TOTAL FEE PAID 275 SIGNATURE INFORMATION SIGNATURE /gcz44004/ SIGNATORY'S NAME Geza C. Ziegler SIGNATORY'S POSITION Attorney of Record SIGNATORY'S PHONE NUMBER 203-659-0388 DATE SIGNED 08/13/2018 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 02/28/2021)
Trademark/Service Mark Application, Principal Register
Serial Number: 88075517 Filing Date: 08/13/2018 To the Commissioner for Trademarks:
MARK: BLITZTRANCE (Standard Characters, see mark) The literal element of the mark consists of BLITZTRANCE. The mark consists of standard characters, without claim to any particular font style, size, or color.
The applicant, Pat McGrath Cosmetics LLC, a limited liability company legally organized under the laws of New York, having an address of 126 Fifth Avenue New York, New York 10011 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:
International Class 003: Cosmetics; Makeup; Lipsticks; Lip cosmetics; Lip gloss; Blush; Highlighters; Eye cosmetics; Eyeshadow; Eyeshadow palettes. Intent to Use: The applicant has a bona fide intention, and is entitled, to use the mark in commerce on or in connection with the identified goods/services.
The applicant's current Attorney Information: Geza C. Ziegler and Joseph V. Gamberdell, Jr. of Ziegler IP Law Group, LLC 55 Greens Farms Road Westport, Connecticut 06880 United States 203-659-0388(phone) 2032225299(fax) [email protected] (authorized) The attorney docket/reference number is BSKPM5035UST. The applicant's current Correspondence Information: Geza C. Ziegler Ziegler IP Law Group, LLC 55 Greens Farms Road Westport, Connecticut 06880 203-659-0388(phone) 2032225299(fax) [email protected];[email protected] (authorized) E-mail Authorization: I authorize the USPTO to send e-mail correspondence concerning the application to the applicant, 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 Reduced Fee 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 $275 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: /gcz44004/ Date: 08/13/2018 Signatory's Name: Geza C. Ziegler Signatory's Position: Attorney of Record Payment Sale Number: 88075517 Payment Accounting Date: 08/13/2018
Serial Number: 88075517 Internet Transmission Date: Mon Aug 13 10:04:00 EDT 2018 TEAS Stamp: USPTO/BAS-XX.XX.XX.XXX-20180813100400799 853-88075517-610e88323695b76f9498ab6f37b 5c91d1c5122cd2bf9c195bb9d134d65f2f321-CC -8438-20180813100105848640