IN the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Notice of Opposition

Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov ESTTA Tracking number: ESTTA1140626 Filing date: 06/16/2021

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

Notice is hereby given that the following party opposes registration of the indicated application. Opposer Information

Name Energy Brands Inc. Granted to Date 06/16/2021 of previous ex- tension Address ONE COCA-COLA PLAZA ATLANTA, GA 30313 UNITED STATES

Correspondence JONATHAN A. WEEKS information TRADEMARK COUNSEL THE COCA-COLA COMPANY ONE COCA-COLA PLAZA ATLANTA, GA 30313 UNITED STATES Primary Email: [email protected] Secondary Email(s): [email protected], [email protected] 404-987-1957

Applicant Information

Application No. 88865774 Publication date 02/16/2021 Opposition Filing 06/16/2021 Opposition Peri- 06/16/2021 Date od Ends Applicant BLK Brands LLC 26565 AGOURA RD. ST 205 26565 WEST AGOURA ROAD, SUITE #205 CALABASAS, CA 91302 UNITED STATES Goods/Services Affected by Opposition

Class 032. First Use: 0 First Use In Commerce: 0 All goods and services in the class are opposed, namely: Non-alcoholic water-based beverages Grounds for Opposition

Priority and likelihood of confusion Trademark Act Section 2(d) Dilution by blurring Trademark Act Sections 2 and 43(c) Dilution by tarnishment Trademark Act Sections 2 and 43(c) Deceptiveness Trademark Act Section 2(a) Marks Cited by Opposer as Basis for Opposition U.S. Application 90596040 Application Date 03/23/2021 No. Registration Date NONE Foreign Priority NONE Date Word Mark SMARTWATER+ Design Mark

Description of NONE Mark Goods/Services Class 032. First use: First Use: 2021/03/01 First Use In Commerce: 2021/03/01 Non-alcoholic beverages, namely, drinking water, bottled drinking water, drinking water containing electrolytes, flavored water, and flavor enhanced water; non-alcoholic water-based beverages containing tea extracts, fruit extracts and herbal extracts; non-alcoholic water beverages with tea flavor

U.S. Registration 6221747 Application Date 05/26/2020 No. Registration Date 12/15/2020 Foreign Priority NONE Date Word Mark GLACÃ#AU SMARTWATER Design Mark

Description of The mark consists of a blue water drop and the words "GLACÃ#AU SMART- Mark WATER". The word "GLACÃ#AU" is written in white capital letters above the word "SMARTWATER", which is written in lower case letters. "SMART" is printed over the water drop in white and "WATER" is printed in blue next to the water drop. Goods/Services Class 032. First use: First Use: 2019/01/01 First Use In Commerce: 2019/01/01 Non-alcoholic beverages, namely, drinking water and bottled drinking water

U.S. Registration 5727975 Application Date 11/09/2018 No. Registration Date 04/16/2019 Foreign Priority NONE Date Word Mark SMARTWATER ALKALINE Design Mark

Description of NONE Mark Goods/Services Class 032. First use: First Use: 2018/10/15 First Use In Commerce: 2018/10/15 Non-alcoholic beverages, namely, drinking water, bottled drinking water, and bottled alkaline water

U.S. Registration 5727974 Application Date 11/09/2018 No. Registration Date 04/16/2019 Foreign Priority NONE Date Word Mark SMARTWATER ANTIOXIDANT Design Mark

Description of NONE Mark Goods/Services Class 032. First use: First Use: 2018/10/15 First Use In Commerce: 2018/10/15 Non-alcoholic beverages, namely, drinking water and bottled drinking water, allcontaining antioxidants

U.S. Registration 5703194 Application Date 08/10/2018 No. Registration Date 03/19/2019 Foreign Priority NONE Date Word Mark SMARTWATER SPARKLING Design Mark

Description of NONE Mark Goods/Services Class 032. First use: First Use: 2015/11/00 First Use In Commerce: 2015/11/00 Carbonated water; drinking water; and bottled drinking water

U.S. Registration 2778914 Application Date 12/02/2000 No. Registration Date 11/04/2003 Foreign Priority NONE Date Word Mark SMARTWATER Design Mark

Description of NONE Mark Goods/Services Class 032. First use: First Use: 1996/01/00 First Use In Commerce: 1996/01/00 BOTTLED DRINKING WATER

U.S. Registration 2740881 Application Date 07/28/1998 No. Registration Date 07/29/2003 Foreign Priority NONE Date Word Mark GLACEAU SMARTWATER Design Mark Description of NONE Mark Goods/Services Class 032. First use: First Use: 1996/01/00 First Use In Commerce: 1996/01/00 BOTTLED DRINKING WATER

U.S. Registration 2840063 Application Date 08/28/2002 No. Registration Date 05/11/2004 Foreign Priority NONE Date Word Mark GLACÃ#AU SMARTWATER Design Mark

Description of The mark consists of the mark "GLACÃ#AU SMARTWATER" written vertically. Mark The word "SMARTWATER" is written in lowercase letters and in alternating em- phasized andregular font. Goods/Services Class 032. First use: First Use: 1996/01/01 First Use In Commerce: 1996/01/01 Non-alcoholic drinking water

U.S. Registration 3420245 Application Date 01/26/2006 No. Registration Date 04/29/2008 Foreign Priority NONE Date Word Mark GLACÃ#AU SMARTWATER Design Mark Description of NONE Mark Goods/Services Class 032. First use: First Use: 2006/01/01 First Use In Commerce: 2006/01/01 Bottled drinking water

Attachments 90596040#TMSN.png( bytes ) 88933664#TMSN.png( bytes ) 88187857#TMSN.png( bytes ) 88187854#TMSN.png( bytes ) 88074466#TMSN.png( bytes ) 76174464#TMSN.png( bytes ) 78158616#TMSN.png( bytes ) 78799834#TMSN.png( bytes ) 6.16.2021 INTELLIGENT WATER Notice of Opposition.pdf(134305 bytes )

Signature /Jonathan A. Weeks/ Name Jonathan A. Weeks Date 06/16/2021 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

ENERGY BRANDS INC., ) ) Opposer, ) ) OPPOSITION NUMBER v. ) ) BLK BRANDS LLC, ) ) Applicant. ) Application Serial No. 88/865,774

NOTICE OF OPPOSITION

ENERGY BRANDS INC., a wholly-owned subsidiary of The Coca-Cola

Company, and a New York corporation, having its principal place of business at One

Coca-Cola Plaza, Atlanta, Georgia 30313 (“Energy Brands” or “Opposer”), believes it

would be damaged by registration of the mark INTELLIGENT WATER (“Applicant’s

Alleged Mark”), for “Non-alcoholic water-based beverages” in Class 32 (“Applicant’s

Goods”), which mark is the subject of application Serial No. 88/865,774 (the

“Application”). BLK Brands LLC (“Applicant”), a Delaware limited liability company

located at 26565 West Agoura Road, Suite #205, Calabasas, California filed the

Application on April 9, 2020. The Application published for opposition in the Official

Gazette on February 16, 2021. By and through its undersigned attorney, Energy

Brands hereby opposes the Application.

The grounds for this Opposition are as follows:

1. By the Application, Applicant seeks to register Applicant’s Alleged Mark as

a trademark for Applicant’s Goods. The Application is based on Section 1(b) of the

Lanham Act. 2. Energy Brands pioneered the enhanced water category when, in 1996, it launched its SMARTWATER brand, a vapor-distilled water enhanced with electrolytes, also known as an “enhanced water” product.

3. Energy Brands is the owner of the trademarks SMARTWATER and

GLACÉAU SMARTWATER (collectively the “SMARTWATER Marks”) and has used these marks continuously in interstate commerce in connection with its enhanced water products since at least January 1996, long prior to the April 9, 2020 application date of the Application.

4. Energy Brands is the owner of the following U.S. trademark registrations for the SMARTWATER trademark (collectively the “SMARTWATER Registrations”):

a. App. No. 90/596,040, filed on March 23, 2021 for SMARTWATER+ in

connection with “Non-alcoholic beverages, namely, drinking water, bottled

drinking water, drinking water containing electrolytes, flavored water, and

flavor enhanced water; non-alcoholic water-based beverages containing

tea extracts, fruit extracts and herbal extracts; non-alcoholic water

beverages with tea flavor” in Class 32.

b. Reg. No. 6,221,747, issued December 15, 2020 for GLACÉAU

SMARTWATER for “non-alcoholic beverages, namely,

drinking water and bottled drinking water” in Class 32 (the “GLACÉAU

SMARTWATER Stylized Registration”).

- - 2 - - c. Reg. No. 5,727,975, issued April 16, 2019 for SMARTWATER ALKALINE

in connection with “non-alcoholic beverages, namely, drinking water,

bottled drinking water, and bottled alkaline water” in Class 32. d. Reg. No. 5,727,974, issued April 16, 2019 for SMARTWATER

ANTIOXIDANT in connection with “non-alcoholic beverages, namely,

drinking water and bottled drinking water, all containing antioxidants” in

Class 32. e. Reg. No. 5,703,194, issued March 19, 2019 for SMARTWATER

SPARKLING in connection with “carbonated water; drinking water; and

bottled drinking water” in Class 32. f. Reg. No. 2,778,914, issued on November 4, 2003 and renewed in 2013

for SMARTWATER in connection with “bottled drinking water” in Class 32

(the “SMARTWATER Registration”). The SMARTWATER Registration is

incontestable. g. Reg. No. 2,740,881, issued on July 29, 2003 and renewed in 2013 for

GLACEAU SMARTWATER in connection with “bottled drinking water” in

Class 32 (the “GLACEAU SMARTWATER Registration”). The GLACEAU

SMARTWATER Registration is incontestable. h. Reg. No. 2,840,063, issued on May 11, 2004 and renewed in 2013 for

GLACÉAU SMARTWATER for “non-alcoholic drinking

water” in Class 32 (the “GLACÉAU SMARTWATER Stylized

- - 3 - - Registration”). The GLACÉAU SMARTWATER Stylized Registration is

incontestable.

i. Reg. No. 3,420,245, issued on April 29, 2008 and renewed in 2018 for

GLACÉAU SMARTWATER & Design in connection with

“bottled drinking water” in Class 32 (the “GLACÉAU SMARTWATER &

Design Registration”). The GLACÉAU SMARTWATER & Design

Registration is incontestable.

5. Energy Brands’ SMARTWATER Registrations are prima facie evidence of

the validity thereof and Energy Brands’ ownership and exclusive right to use the

SMARTWATER Marks in commerce, and are constructive notice of Energy Brands’

ownership thereof, all as provided by Sections 7(b) and 22 of the Federal Trademark

Act of 1946, as amended.

6. Energy Brands also has common law rights in the SMARTWATER Marks on which it relies in its opposition to the Application.

7. Energy Brands’ goods offered under the SMARTWATER Marks are offered through its website www.drinksmartwater.com, numerous retail locations

throughout the United States, as well as through online retail websites such as

www.amazon.com.

8. Energy Brands’ SMARTWATER Marks have been extensively advertised throughout the United States, including use of the SMARTWATER Marks on packaging, point-of-sale materials, print, broadcast and digital advertising. As a result of the

- - 4 - - widespread and extensive use, advertising and promotion by Energy Brands of the

SMARTWATER Marks, the SMARTWATER Marks serve to identify and distinguish

Energy Brands’ enhanced water products from the goods, services and businesses of others. Furthermore, Energy Brands’ SMARTWATER Marks symbolize the goodwill of

Energy Brands’ business, are well-known, and are of great value to Energy Brands in

connection with its marketing, distribution and sale of enhanced water.

9. Because Energy Brands has registered, applied for, and/or used the

SMARTWATER Marks continuously well in advance of the April 9, 2020 application date of the Application, the SMARTWATER Marks have priority of use or priority of rights in the United States over Applicant’s Alleged Mark.

10. Applicant’s Alleged Mark is similar to the SMARTWATER Marks in appearance, connotation and commercial impression.

11. Applicant’s Goods are identical and/or closely related to the goods covered by Energy Brands’ registrations for the SMARTWATER Marks.

12. Applicant’s Goods and the goods for which Energy Brands uses its

SMARTWATER Marks may be offered, at least in part, to the same, substantially the same, or related classes of purchasers and distributed through the same channels of trade.

13. Applicant’s Alleged Mark, when used in connection with Applicant’s

Goods, so resembles the SMARTWATER Marks as to be likely to cause confusion, cause mistake, or deceive with respect to the source or origin of Applicant’s goods, with respect to Energy Brands’ sponsorship thereof, or connection or affiliation therewith, and/or in other ways.

- - 5 - - 14. Energy Brands would be damaged by registration of Applicant’s Alleged

Mark because such registration would constitute prima facie evidence of Applicant’s

exclusive right to use Applicant’s Alleged Mark for and in connection with Applicant’s

goods, which would be inconsistent with and detrimental to Energy Brands’ prior,

well-established and superior rights in the SMARTWATER Marks.

15. Opposer's SMARTWATER Marks are famous marks within the meaning of

Section 43(c) of the Lanham Trademark Act, and the use by Applicant of Applicant's

Alleged Mark for Applicant's Goods is likely to cause dilution of the distinctive quality of

Opposer's SMARTWATER Marks under Section 43(c).

WHEREFORE, Opposer Energy Brands Inc. respectfully prays that the

application of BLK Brands LLC, Serial No. 88/865,774, filed April 9, 2020, for

registration of Applicant’s Alleged Mark for Applicant’s Goods be refused, that no

registration be issued thereon to Applicant for Applicant’s Alleged Mark, and that this

opposition be sustained in favor of Opposer.

Respectfully submitted,

/s/ Jonathan A. Weeks Jonathan A. Weeks, Esq. Trademark Counsel The Coca-Cola Company One Coca-Cola Plaza Atlanta, GA 30313

Attorney for Opposer ENERGY BRANDS INC.

- - 6 - -