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ESTTA963560 03/29/2019 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 8

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ESTTA963560 03/29/2019 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 8 Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA963560 Filing date: 03/29/2019 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 86905628 Applicant Vitamin Shoppe Procurement Services, Inc Applied for Mark V THE VITAMIN SHOPPE Correspondence JAMES E ROSINI Address KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 UNITED STATES [email protected] 212-425-7200 Submission Appeal Brief Attachments 16492 vitamin shoppe appeal brief w-cases.pdf(1985656 bytes ) Filer's Name James E. Rosini Filer's email [email protected] Signature /JER/ Date 03/29/2019 Attorney Docket Number: 516492.256490 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE In the Matter of Trademark and Service Mark Applications Serial Nos.: 86905555 : 86905614 : Int. Cls. 5, 35 86905620 : 86905628 : : Ex. Atty: Mark S. Tratos Applicant: Vitamin Shoppe Procurement : Law Office 113 Services, LLC : : Trademark Trial and Appeal Board United States Patent and Trademark Office P.O. Box 1451 Alexandria, VA 22313-1451 APPLICANT’S CONSOLIDATED APPEAL BRIEF Applicant, Vitamin Shoppe Procurement Services, LLC (f/k/a Vitamin Shoppe Procurement Services, Inc.), appeals from the Examining Attorney’s final rejection and denial of reconsideration in four related applications: Serial Nos. 86905555, 86905614, 86905620, and 86905628. Through those applications, Applicant seeks to register several different logo designs that incorporate its already registered THE VITAMIN SHOPPE brand name for an assortment of goods and services in Classes 5 and 35: Serial No. 86905555 Classes 5, 35 (Filed 2/11/16) Serial No. 86905614 Class 35 (Filed 2/11/16) NY01:4444120.1 Serial No. 86905620 Classes 5, 35 (Filed 2/11/16) Serial No. 86905628 Classes 5, 35 (Filed 2/11/16) (“the Subject Applications”). Recognizing the relatedness of the Subject Applications, the Board has already consolidated the four pending appeals for briefing, argument, and decision. BACKGROUND A. Applicant’s Use of THE VITAMIN SHOPPE Applicant1 operates more than 770 health and wellness stores across the United States under the brand name THE VITAMIN SHOPPE. Response to Office Action (7/17/17) (Serial No. 86905555), Exhibit A (“Jaffe Decl.,”), ¶ 7.2 At Applicant’s THE VITAMIN SHOPPE stores (and at its online retail store, www.thevitaminshoppe.com), consumers can purchase an array of health and wellness products, including laundry soaps, cleaning solutions, veterinary preparations, dietetic foods and drink, nutritional and dietary supplements, meal replacement 1 Applicant, Vitamin Shoppe Procurement Services, Inc., is a wholly-owned subsidiary of Vitamin Shoppe Industries, Inc., which is a wholly-owned subsidiary of Vitamin Shoppe, Inc. See Response to Office Action (7/17/17) (Serial No. 86905555), Exhibit A, ¶ 4. For ease of reference, Applicant will refer to “Applicant” as the source of activities conducted for the benefit of its parent entity, irrespective of through which subsidiary those activities are conducted. 2 For simplicity (and to avoid unnecessary parallel cites), unless indicated otherwise, Applicant throughout this brief cites to the prosecution history of Serial No. 86905555 (the first of the four listed applications). The four file wrappers, however, are substantively the same. Compare, e.g., Response to Office Action (7/17/17) (Serial No. 86905555), Exhibit A with Response to Office Action (6/16/17) (Serial No. 86905614), Exhibit A; Response to Office Action (7/17/17) (Serial No. 86905620), Exhibit A; and Response to Office Action (7/17/17) (Serial No. 86905628), Exhibit A. Specific record page citations in this brief correlate to the pages of the PDF files accessible through the TSDR system. 2 bars, weight loss preparations, toiletries, housewares, aromatherapy products, and health and beauty aids, to name just a few. See id., ¶ 3; see also id. at Ex. 6. Roughly 25 million consumers visit Applicant’s THE VITAMIN SHOPPE stores every year, generating more than $1.1 B in annual sales and securing Applicant’s position as one of the largest retailers of health and wellness products in the United States. See id., ¶¶ 9, 10, 12, 15. Applicant has used its THE VITAMIN SHOPPE name to identify its goods and retail store services since 1977, a period that spans more than forty years. Jaffe Decl., ¶ 3. During that time—and continuing today—Applicant has actively promoted its brand, advertising THE VITAMIN SHOPPE through traditional consumer outlets, in trade publications, and at public sports, health, and wellness events. See id., ¶ 13. Applicant spends about $15 M a year on advertising featuring THE VITAMIN SHOPPE mark. See id., ¶¶ 8, 13-14, 19, Exs. 6, 9. As a result of Applicant’s extensive use and promotion of THE VITAMIN SHOPPE, both consumers and the trade associate the mark exclusively with Applicant. Jaffe Decl., ¶ 25. To Applicant’s knowledge, no media outlets refer to anyone other than Applicant as “THE VITAMIN SHOPPE,” nor is any other health and wellness store (and certainly no entity of any significance) regularly using that phrase. See id., ¶ 22. To the contrary, both the media and those in the trade exclusively use “THE VITAMIN SHOPPE” to refer to Applicant, using different names to refer to other health and wellness stores, both specifically and in general. See id., ¶¶ 16-18, 20-21, Exs. 7-8, 10-12. Likewise, if you search the Internet for “THE VITAMIN SHOPPE” (or “THE VITAMIN SHOP”) using the Google search engine, your search will return page after page of “hits” that refer solely to Applicant. See id., ¶¶ 23-24, Exs. 13-15. 3 To protect its rights in its brand, Applicant registered THE VITAMIN SHOPPE with the Trademark Office back in August 2001, securing two block-letter registrations for the mark that cover an assortment of health and wellness goods and services in Classes 3, 5, and 35: Class 3 Non-medicated skin treatment creams, hair shampoos Reg. No. 2481640 and bath and shower gels; and aromatherapy oils (Filed 12/2/99) Class 5 (Registered 8/28/01) Vitamins, vitamin and mineral supplements, and nutritional supplements Class 35 Retail store services, mail order catalog services and Reg. No. 2481906 online retail store services provided via a global computer network featuring vitamins, nutritional (Filed 12/2/99) supplements, books, herbal products, aromatherapy (Registered 8/28/01) products, bath and shower products, skin treatment creams, and related items Response to Office Action (7/17/17), pp. 602-607. In both applications, Applicant disclaimed the exclusive right to use “Vitamin” (apart from the mark as shown) and submitted evidence (which the Office accepted) under Section 2(f) that the mark as a whole had acquired distinctiveness. See id. Both of these registration have since been acknowledged incontestable. See id. In the years following, Applicant also successfully registered the logo it was using for its business (THE VITAMIN SHOPPE SINCE 1977 & Design). When required, Applicant again supported registration by showing that THE VITAMIN SHOPPE had acquired distinctiveness: Class 3 Non-medicated skin treatment creams, hair shampoos and Reg. No. 2737734 bath and shower gels; complementary and alternative (Filed 12/4/2000) medicine products, namely, aromatherapy oils and lotions, aromatherapy bath oils, joint creams, facial and body (Registered 7/15/03) soaps, scrubs, cleansers, creams and gels, foot scrubs, creams, lotions, sprays and gels and massage oils, gels, lotions and creams Section 2(f) as to THE VITAMIN Class 5 SHOPPE Vitamins and vitamin, mineral and nutritional supplements Class 16 Catalogs featuring vitamins, nutritional supplements, 4 complementary and alternative medicine products, books, herbal products, aromatherapy products, bath and shower products, skin treatment creams, and related items Reg. No. 2737735 Class 35 (Filed 12/4/2000) Retail store services, mail order catalog services and (Registered 7/15/03) online retail store services provided via a global computer network featuring vitamins, nutritional supplements, Section 2(f) as to complementary and alternative medicine products, books, THE VITAMIN herbal products, aromatherapy products, bath and shower products, skin treatment creams, and related items SHOPPE Reg. No. 3183591 Class 35 Retail store services, mail order catalog services and (Filed 1/26/06) online retail store services provided via a global computer (Registered 12/12/06) network featuring vitamins, nutritional supplements, complementary and alternative medicine products, books, Section 2(f) as to the herbal products, aromatherapy products, bath and shower products, health and beauty products, skin treatment entire mark creams, and related items Reg. No. 3186751 Class 16 (Filed 1/26/06) Catalogs, newsletters and magazines featuring vitamins, (Registered 12/19/06) nutritional supplements, complementary and alternative (Cancelled 7/21/17) medicine products, books, herbal products, aromatherapy products, bath and shower products, skin treatment creams and related items Section 2(f) as to the entire mark Class 3 Non-medicated skin treatment creams, hair shampoos and bath and shower gels; aromatherapy oils and lotions; Reg. No. 3241641 aromatherapy bath oils; facial and body soaps, scrubs, cleansers, creams and gels; foot scrubs, creams, lotions, (Filed 1/30/06) sprays and gels; and massage oils, gels, lotions and creams (Registered 5/15/07) Class 5 Section 2(f) as to the Vitamins and vitamin, mineral, dietary and nutritional entire mark supplements; Complementary and alternative medicine products, namely, aromatherapy oils and lotions, aromatherapy bath oils, joint creams, scrubs, cleansers, creams and gels, foot scrubs, creams, lotions, sprays and gels and massage oils, gels, lotions and creams 5 Id/ at 608-19; Response to Office Action (11/18/16), p. 13. Each of these registrations is also incontestable (except, as noted above, Reg. No. 3186751, which was recently cancelled). See id. B. The Subject Applications A few years ago, Applicant updated its logo, moving from a classic oval to a more modern look. Use of the core THE VITAMIN SHOPPE element, however, remained the same: Jaffe Decl., ¶¶ 2, 8, Ex.
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