PTO Form 1930 (Rev 9/2007)
`
`OMB No. 0651-0050 (Exp. 4/30/2009)
`
`Request for Reconsideration after Final Action
`
`The table below presents the data as entered.
`
`Input Field
`
`Entered
`
`SERIAL NUMBER
`
`85184182
`
`LAW OFFICE
`ASSIGNED
`
`LAW OFFICE 102
`
`MARK SECTION (no change)
`
`ARGUMENT(S)
`
`1. Procedure History
`
`This is in response to the September 14, 2011 Final Office Action for Application Serial No. 85/184,182
`for the mark PEACE, LOVE AND GLUTEN FREE owned by Rock-N-Roll Gourmet, LLC
`("Applicant"). The Examiner issued a final refusal on the grounds that U.S. Registration Nos. 3,542,995
`and 3,546,281 ("Cited Registrations") for crackers are likely to be confused with Applicant’s mark
`when used in connection with potato chips. Previously, the Examiner issued a Non-final Office Action
`on the same grounds, to which Applicant responded on August 31, 2011. All arguments made in
`Applicant’s August 31, 2011 response are incorporated in this response.
`
`2. Summary
`
`The Examiner argued that PEACE, LOVE AND GLUTEN FREE is likely to be confused with PEACE,
`LOVE AND CRUNCH because the dominant portion of the marks is PEACE, LOVE. Furthermore, the
`Examiner argued that gluten-free potato chips, Applicant’s applied-for products, are typically marketed
`alongside regular snacks, and that gluten-free potato chips and crackers are highly related. Finally, the
`Examiner argued that the goods of both the Applicant and the owner of the Cited Registrations are
`marketed as gluten-free, and thus the goods are in the same narrow market of "gluten free salty snacks."
`
`Applicant respectfully disagrees with the Examiner’s conclusions. PEACE, LOVE AND GLUTEN
`FREE is not likely to be confused with PEACE, LOVE AND CRUNCH because the overall marks are
`distinct in appearance, sound, meaning and commercial impression, despite the Examiner’s argument
`that PEACE, LOVE is the dominant and distinctive portion of the marks. In addition, even if
`Applicant’s goods and the owner of the Cited Registrations’ goods are marketed together in outlets
`such as grocery stores, it does not follow that consumers are likely to be confused because grocery
`stores sell thousands of items, and reasonable consumers would not assume that all of these items
`emanate from the same source. Finally, the fact that the goods of the parties are both gluten-free
`supports Applicant’s argument that consumers who are on a gluten-free diet are discerning and
`sophisticated, and would unlikely to be confused.
`
`3. The Presence of Identical Dominant Terms Does Not Necessarily Make Two Marks Confusingly
`
`

`
`Similar
`
`The Examiner argued that PEACE, LOVE is the dominant portion of the registrant’s and Applicant’s
`mark, and that GLUTEN FREE and CRUNCH, being the descriptive portions, are not the dominant
`features of the trademarks. While it is true that "dominant features will, of course, weigh heavier in the
`overall impression of a mark, . . . no element of a mark is ignored simply because it is less dominant, or
`would not have trademark significance if used alone." In re Electrolyte Laboratories Inc., 16
`U.S.P.Q.2d 1239, 1240 (Fed. Cir. 1990). Thus, even assuming, without Applicant’s admitting, that the
`dominant portion of its mark is PEACE, LOVE, it does not automatically follow that PEACE, LOVE
`AND GLUTEN FREE is confusingly similar to PEACE, LOVE & CRUNCH. Gen. Mills, Inc. v.
`Kellogg Co., 824 F.2d 622, 627 (8th Cir. 1987) ("The use of identical, even dominant, words in common
`does not automatically mean that two marks are similar."). The proper comparison is between the
`overall commercial impressions of the marks. PEACE, LOVE AND GLUTEN FREE and PEACE,
`LOVE & CRUNCH have different overall appearances, sounds, meanings and commercial impressions,
`and thus consumer confusion is unlikely.
`
`4. The Parties’ Goods Are Different
`
`The Examiner argued that potato chips and crackers are the type of snacks that emanate from the same
`source. In particular, the Examiner provided the web pages created by an individual advocate of a
`gluten-free diet as proof that Frito-Lay markets its gluten-free chips alongside regular snacks (Exhibit
`A). There is no evidence that these web pages reflect market reality, as this is merely an informational
`website created by an individual about gluten-free snacks.
`
`Even if gluten-free chips and snacks are marketed together in grocery stores or websites featuring
`groceries or snacks, "there exists no ‘per se’ rule that all food products are to be deemed related goods
`by nature or by virtue of their capability of being sold in the same food markets." In re August Storck
`KG, 218 U.S.P.Q. 823, 824 (T.T.A.B. 1983); Riviana Foods, Inc. v. Societe Des Products Nestle S.A.,
`33 U.S.P.Q.2d 1669, 1670 (S.D. Tx. 1994) ("Both products are sold primarily in grocery stores and
`supermarkets. This is of little significance, however, because approximately 15,000-20,000 products are
`sold in today’s supermarkets.").
`
`Therefore, even if snacks and gluten-free potato chips are sold by the same retail outlets, this fact is of
`little significance because grocery stores sell a wide variety of products and consumers do not assume
`that all goods sold at these stores emanate from the same source.
`
`5. Individuals on a Gluten-Free Diet are Sophisticated and Discerning
`
`As Applicant previously argued in the response to the Non-final Office Action, a gluten-free diet is used
`to treat celiac disease, and consumers with the disease are likely to exercise more care when purchasing
`gluten-free products. Individuals allergic to gluten may suffer from schizophrenia, headaches, pain or
`diarrhea (Exhibit B), and it is highly likely that these individuals would be discerning and educated
`about the products. If these individuals do not exercise care when purchasing gluten-free products, it
`could cause them great physical harm.
`
`Therefore, the fact that Mary’s Gone Crackers, Inc. and Applicant both target consumers on a gluten-
`free diet, as the Examiner pointed out, weighs against likelihood of confusion because this class of
`consumers are sophisticated and discerning.
`
`

`
`6. Conclusion
`
`Applicant’s registration of its PEACE, LOVE AND GLUTEN FREE mark is not likely to lead to
`confusion with the Cited Registrations because the overall marks are different in appearance, sound,
`meaning and commercial impression, are for different products that are sold in grocery stores that also
`sell thousands of other items that consumers do not reasonably assume that they all emanate from the
`same source, and consumers for gluten-free products are sophisticated and discerning. As such,
`Applicant respectfully requests approval of the PEACE, LOVE AND GLUTEN FREE application for
`publication.
`
`EVIDENCE SECTION
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)EVIDENCE FILE NAME(S)
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)ORIGINAL PDF FILE
`
`evi_156471510-153154016_._peace__love_and_gluten_free_exhibits.pdf
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)CONVERTED PDF
`FILE(S)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(22 pages)
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0002.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0003.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0004.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0005.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0006.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0011.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0012.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0013.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0014.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0015.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0017.JPG
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`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0018.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0019.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0020.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0021.JPG
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0022.JPG
`
`\\TICRS\EXPORT11\IMAGEOUT11\851\841\85184182\xml8\RFR0023.JPG
`
`DESCRIPTION OF
`EVIDENCE FILE
`
`third party website printouts
`
`GOODS AND/OR SERVICES SECTION (current)
`
`INTERNATIONAL
`CLASS
`
`029
`
`DESCRIPTION
`
`FILING BASIS
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160) FIRST USE
`ANYWHERE DATE
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160) FIRST USE IN
`COMMERCE DATE
`
`Gluten-free potato chips
`
`Section 1(a)
`
`At least as early as 07/01/2007
`
`At least as early as 07/01/2007
`
`GOODS AND/OR SERVICES SECTION (proposed)
`
`INTERNATIONAL
`CLASS
`
`029
`
`DESCRIPTION
`
`FILING BASIS
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)FIRST USE
`ANYWHERE DATE
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)FIRST USE IN
`COMMERCE DATE
`
`Gluten-free potato chips
`
`Section 1(a)
`
`At least as early as 11/13/2007
`
`At least as early as 11/13/2007
`
`SIGNATURE SECTION
`
`DECLARATION
`SIGNATURE
`
`/pouibonnielee/
`
`SIGNATORY'S NAME
`
`Pou-I "Bonnie" Lee
`
`SIGNATORY'S
`POSITION
`
`DATE SIGNED
`
`Attorney of record, New York bar member
`
`03/14/2012
`
`RESPONSE SIGNATURE
`
`/pouibonnielee/
`
`SIGNATORY'S NAME
`
`Pou-I "Bonnie" Lee
`
`SIGNATORY'S
`POSITION
`
`DATE SIGNED
`
`AUTHORIZED
`SIGNATORY
`
`CONCURRENT APPEAL
`NOTICE FILED
`
`Attorney of record, New York bar member
`
`03/14/2012
`
`YES
`
`YES
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`FILING INFORMATION SECTION
`
`SUBMIT DATE
`
`Wed Mar 14 15:42:49 EDT 2012
`
`TEAS STAMP
`
`USPTO/RFR-156.47.15.10-20
`120314154249075075-851841
`82-490460ce38ac4f39efe36f
`1b97f13512e9-N/A-N/A-2012
`0314153154016795
`
`PTO Form 1930 (Rev 9/2007)
`
`OMB No. 0651-0050 (Exp. 4/30/2009)
`
`Request for Reconsideration after Final Action
`To the Commissioner for Trademarks:
`
`Application serial no. 85184182 has been amended as follows:
`
`ARGUMENT(S)
`In response to the substantive refusal(s), please note the following:
`
`1. Procedure History
`
`This is in response to the September 14, 2011 Final Office Action for Application Serial No. 85/184,182
`for the mark PEACE, LOVE AND GLUTEN FREE owned by Rock-N-Roll Gourmet, LLC ("Applicant").
`The Examiner issued a final refusal on the grounds that U.S. Registration Nos. 3,542,995 and 3,546,281
`("Cited Registrations") for crackers are likely to be confused with Applicant’s mark when used in
`connection with potato chips. Previously, the Examiner issued a Non-final Office Action on the same
`grounds, to which Applicant responded on August 31, 2011. All arguments made in Applicant’s August
`31, 2011 response are incorporated in this response.
`
`2. Summary
`
`The Examiner argued that PEACE, LOVE AND GLUTEN FREE is likely to be confused with PEACE,
`LOVE AND CRUNCH because the dominant portion of the marks is PEACE, LOVE. Furthermore, the
`Examiner argued that gluten-free potato chips, Applicant’s applied-for products, are typically marketed
`alongside regular snacks, and that gluten-free potato chips and crackers are highly related. Finally, the
`Examiner argued that the goods of both the Applicant and the owner of the Cited Registrations are
`marketed as gluten-free, and thus the goods are in the same narrow market of "gluten free salty snacks."
`
`Applicant respectfully disagrees with the Examiner’s conclusions. PEACE, LOVE AND GLUTEN FREE
`is not likely to be confused with PEACE, LOVE AND CRUNCH because the overall marks are distinct in
`appearance, sound, meaning and commercial impression, despite the Examiner’s argument that PEACE,
`LOVE is the dominant and distinctive portion of the marks. In addition, even if Applicant’s goods and the
`
`

`
`owner of the Cited Registrations’ goods are marketed together in outlets such as grocery stores, it does
`not follow that consumers are likely to be confused because grocery stores sell thousands of items, and
`reasonable consumers would not assume that all of these items emanate from the same source. Finally, the
`fact that the goods of the parties are both gluten-free supports Applicant’s argument that consumers who
`are on a gluten-free diet are discerning and sophisticated, and would unlikely to be confused.
`
`3. The Presence of Identical Dominant Terms Does Not Necessarily Make Two Marks Confusingly
`Similar
`
`The Examiner argued that PEACE, LOVE is the dominant portion of the registrant’s and Applicant’s
`mark, and that GLUTEN FREE and CRUNCH, being the descriptive portions, are not the dominant
`features of the trademarks. While it is true that "dominant features will, of course, weigh heavier in the
`overall impression of a mark, . . . no element of a mark is ignored simply because it is less dominant, or
`would not have trademark significance if used alone." In re Electrolyte Laboratories Inc., 16 U.S.P.Q.2d
`1239, 1240 (Fed. Cir. 1990). Thus, even assuming, without Applicant’s admitting, that the dominant
`portion of its mark is PEACE, LOVE, it does not automatically follow that PEACE, LOVE AND
`GLUTEN FREE is confusingly similar to PEACE, LOVE & CRUNCH. Gen. Mills, Inc. v. Kellogg Co.,
`824 F.2d 622, 627 (8th Cir. 1987) ("The use of identical, even dominant, words in common does not
`automatically mean that two marks are similar."). The proper comparison is between the overall
`commercial impressions of the marks. PEACE, LOVE AND GLUTEN FREE and PEACE, LOVE &
`CRUNCH have different overall appearances, sounds, meanings and commercial impressions, and thus
`consumer confusion is unlikely.
`
`4. The Parties’ Goods Are Different
`
`The Examiner argued that potato chips and crackers are the type of snacks that emanate from the same
`source. In particular, the Examiner provided the web pages created by an individual advocate of a gluten-
`free diet as proof that Frito-Lay markets its gluten-free chips alongside regular snacks (Exhibit A). There
`is no evidence that these web pages reflect market reality, as this is merely an informational website
`created by an individual about gluten-free snacks.
`
`Even if gluten-free chips and snacks are marketed together in grocery stores or websites featuring
`groceries or snacks, "there exists no ‘per se’ rule that all food products are to be deemed related goods by
`nature or by virtue of their capability of being sold in the same food markets." In re August Storck KG,
`218 U.S.P.Q. 823, 824 (T.T.A.B. 1983); Riviana Foods, Inc. v. Societe Des Products Nestle S.A., 33
`U.S.P.Q.2d 1669, 1670 (S.D. Tx. 1994) ("Both products are sold primarily in grocery stores and
`supermarkets. This is of little significance, however, because approximately 15,000-20,000 products are
`sold in today’s supermarkets.").
`
`Therefore, even if snacks and gluten-free potato chips are sold by the same retail outlets, this fact is of
`little significance because grocery stores sell a wide variety of products and consumers do not assume that
`all goods sold at these stores emanate from the same source.
`
`5. Individuals on a Gluten-Free Diet are Sophisticated and Discerning
`
`As Applicant previously argued in the response to the Non-final Office Action, a gluten-free diet is used to
`treat celiac disease, and consumers with the disease are likely to exercise more care when purchasing
`gluten-free products. Individuals allergic to gluten may suffer from schizophrenia, headaches, pain or
`diarrhea (Exhibit B), and it is highly likely that these individuals would be discerning and educated about
`
`

`
`the products. If these individuals do not exercise care when purchasing gluten-free products, it could cause
`them great physical harm.
`
`Therefore, the fact that Mary’s Gone Crackers, Inc. and Applicant both target consumers on a gluten-free
`diet, as the Examiner pointed out, weighs against likelihood of confusion because this class of consumers
`are sophisticated and discerning.
`
`6. Conclusion
`
`Applicant’s registration of its PEACE, LOVE AND GLUTEN FREE mark is not likely to lead to
`confusion with the Cited Registrations because the overall marks are different in appearance, sound,
`meaning and commercial impression, are for different products that are sold in grocery stores that also sell
`thousands of other items that consumers do not reasonably assume that they all emanate from the same
`source, and consumers for gluten-free products are sophisticated and discerning. As such, Applicant
`respectfully requests approval of the PEACE, LOVE AND GLUTEN FREE application for publication.
`
`EVIDENCE
`Evidence in the nature of third party website printouts has been attached.
`Original PDF file:
`evi_156471510-153154016_._peace__love_and_gluten_free_exhibits.pdf
`Converted PDF file(s) (22 pages)
`Evidence-1
`Evidence-2
`Evidence-3
`Evidence-4
`Evidence-5
`Evidence-6
`Evidence-7
`Evidence-8
`Evidence-9
`Evidence-10
`Evidence-11
`Evidence-12
`Evidence-13
`Evidence-14
`Evidence-15
`Evidence-16
`Evidence-17
`Evidence-18
`Evidence-19
`Evidence-20
`Evidence-21
`Evidence-22
`
`CLASSIFICATION AND LISTING OF GOODS/SERVICES
`Applicant proposes to amend the following class of goods/services in the application:
`
`

`
`Current: Class 029 for Gluten-free potato chips
`Original Filing Basis:
`Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the
`applicant's related company or licensee is using the mark in commerce, on or in connection with the
`identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least
`as early as 07/01/2007 and first used in commerce at least as early as 07/01/2007, and is now in use in
`such commerce.
`
`Proposed: Class 029 for Gluten-free potato chips
`Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the
`applicant's related company or licensee is using the mark in commerce, on or in connection with the
`identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least
`as early as 11/13/2007 and first used in commerce at least as early as 11/13/2007, and is now in use in
`such commerce.
`SIGNATURE(S)
`Declaration Signature
`If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the
`applicant has had a bona fide intention to use or use through the applicant's related company or licensee
`the mark in commerce on or in connection with the identified goods and/or services as of the filing date of
`the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii); and/or the applicant has
`had a bona fide intention to exercise legitimate control over the use of the mark in commerce by its
`members. 37 C.F. R. Sec. 2.44. If the applicant is seeking registration under Section 1(a) of the Trademark
`Act, the mark was in use in commerce on or in connection with the goods and/or services listed in the
`application as of the application filing date or as of the date of any submitted allegation of use. 37 C.F.R.
`Secs. 2.34(a)(1)(i); and/or the applicant has exercised legitimate control over the use of the mark in
`commerce by its members. 37 C.F.R. Sec. 2.44. The undersigned, being hereby warned that willful false
`statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section
`1001, and that such willful false statements may jeopardize the validity of the application or any resulting
`registration, declares that he/she is properly authorized to execute this application on behalf of the
`applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be
`registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant
`to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person,
`firm, corporation, or association has the right to use the mark in commerce, either in the identical form
`thereof or in such near resemblance thereto as to be likely, when used on or in connection with the
`goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; that if the
`original application was submitted unsigned, that all statements in the original application and this
`submission made of the declaration signer's knowledge are true; and all statements in the original
`application and this submission made on information and belief are believed to be true.
`
`Signature: /pouibonnielee/(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)Date: 03/14/2012
`Signatory's Name: Pou-I "Bonnie" Lee
`Signatory's Position: Attorney of record, New York bar member
`
`Request for Reconsideration Signature
`Signature: /pouibonnielee/(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)Date: 03/14/2012
`Signatory's Name: Pou-I "Bonnie" Lee
`Signatory's Position: Attorney of record, New York bar member
`
`The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the
`highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal
`
`

`
`territories and possessions; and he/she is currently the applicant's attorney or an associate thereof; and to
`the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian
`attorney/agent not currently associated with his/her company/firm previously represented the applicant in
`this matter: (1) the applicant has filed or is concurrently filing a signed revocation of or substitute power
`of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to
`withdraw; (3) the applicant has filed a power of attorney appointing him/her in this matter; or (4) the
`applicant's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing
`him/her as an associate attorney in this matter.
`
`The applicant is filing a Notice of Appeal in conjunction with this Request for Reconsideration.
`
`Serial Number: 85184182
`Internet Transmission Date: Wed Mar 14 15:42:49 EDT 2012
`TEAS Stamp: USPTO/RFR-156.47.15.10-20120314154249075
`075-85184182-490460ce38ac4f39efe36f1b97f
`13512e9-N/A-N/A-20120314153154016795
`
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`EXHIBIT A
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`Page 1 of 2
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`Welcome to GIuten-Free-Diet-He|p.com!
`
`Why I Created This Site
`
`My husband, Paul, was diagnosed with Osteoporosis at the age of 45. I had
`Chronic Fatigue and Fibromyalgia. Although our symptoms were very
`different, it turned out both of our symptoms were related to gluten.
`
`Since going gluten and casein free in November of 2006, we have seen
`many changes.
`
`My energy is better, the Fibromyalgia is gone, skin rashes are gone, and no
`more brain fog!
`
`Paul has not had a migraine in 2 years! His hyperactivity disappeared after
`10 months on the diet. His bone mass is slowly improving.
`
`At our age it takes at least two years to heal. We are looking forward to
`even more improvement.
`
`I was fortunate in having the time to read and read and learn about the
`gluten free diet.
`
`I want to pass along what I've learned to others. To give the struggling
`mom who works full time especially, a resource. A place to get the
`information to make shopping easier. Recipes and cooking techniques to
`prepare gluten free meals. A head start, with everything in one place.
`
`That's why I created this website. I hope it will be of great help to you!
`
`Note: We do not give medical advice, as we are not medical professionals.
`Just some guidance on the practical aspects. If you have medical questions,
`please contact your doctor.
`
`from About Us back to Gluten Free Diet Help Home Page
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`

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`EXHIBIT B
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`

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`Gluten sensitivity - Wikipedia, the free encyclopedia
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`Page 1 of 18
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`Gluten sensitivity
`From Wikipedia, the free encyclopedia
`
`Gluten sensitivity (also known as "gluten intolerance") (GS) belongs to a spectrum of disorders in
`which gluten has an adverse effect on the body. It can be defined as a non—allergic and non—autoimmune
`condition in which the consumption of gluten can lead to symptoms similar to those observed in celiac
`disease or wheat allergy (other conditions which fall under the gluten—related disorders spectrum).
`
`Gluten sensitivity is thought to affect approximately 6% of the general populationm Symptoms of
`gluten sensitivity include bloating, abdominal discomfort, pain or diarrhea; or it may present with a
`variety of extraintestinal symptoms including headaches and migraines, lethargy and tiredness, attention
`-deficit disorder and hyperactivity, schizophrenia, muscular disturbances as well as bone and joint pain.
`[2][3][4l[5]
`
`Until recently, the terms gluten sensitivity and celiac disease were used interchangeably in literature.
`However, emerging research is beginning to identify the differences that exist between celiac disease
`and gluten sensitivity. If the medical history of a patient, along with clinical tests, rule out celiac disease
`and wheat allergy, a diagnosis of gluten sensitivity can be considered. However, certain criteria need to
`be met before a diagnosis of gluten sensitivity can be confirmed (see diagnosis section). Treatment for
`all three conditions is a gluten-free diet; the difference being that with wheat allergy the interruption is
`temporary and drugs may be administered; in the case of celiac disease the diet is lifelong and even
`ingesting very small amounts of gluten-containing food could damage their health and, in the case of
`gluten sensitivity the withdrawal of gluten from the diet may only be temporary.
`
`Gluten is a protein composite found in foods processed from wheat and related species, including barley
`and rye. It gives elasticity to dough helping it to rise and to keep its shape. It is found in many staple
`foods in the Western diet. Gluten is composed of a gliadin fraction (alcohol soluble) and a glutenin
`fraction (only soluble in dilute acids or alkali).
`
`Contents
`
`I 1 Symptoms
`I 1.1 Diagnosis of Gluten Sensitivity
`I 1.2 Difference between gluten sensitivity and celiac disease
`2 Etiology
`3 Causes of gluten sensitivity
`I 3.1 Triticeae and the potential role of selective evolution in gluten sensitivities
`I 3.2 Gluten toxicity
`I 3.3 Immunochemistry of glutens
`4 Separating forms of gluten sensitivity
`5 Gluten-sensitive enteropathy (GSE)
`6 Idiopathic gluten sensitivity
`I 6.1 Neuropathies
`I 6.2 Other conditions
`
`7 Gluten-allergy related sensitivities
`8 Comparative pathophysiology
`9 Gluten sources
`
`I 9.1 The oat controversy
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`Gluten sensitivity - Wikipedia, the free encyclopedia
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`I 9.1.1 Origin of controversy
`I 9.1.2 Current findings
`I 9.2 Tolerable levels of gluten
`I 9.3 Gluten—free testing
`I 9.4 Diets
`I 10 See also
`I 11 References
`
`Symptoms
`
`Symptoms of gluten sensitivity may include bloating, abdominal discomfort, pain, or diarrhea; or it may
`present with a variety of extraintestinal symptoms including headaches and migraines, lethargy and
`tiredness, attention-deficit disorder and hyperactivity, muscular disturbances as well as bone and joint
`pain_[41[51[61
`
`Diagnosis of Gluten Sensitivity
`
`If the medical history of a patient, along with clinical tests, rule out celiac disease and wheat allergy, a
`diagnosis of gluten sensitivity can be considered. However, before a diagnosis of gluten sensitivity can
`be confirmed the following criteria need to be met:
`
`I Wheat allergy excluded (anti IgE antibody negative)
`I Celiac disease excluded (negative serological results of tTG/EMA/dAGA and IgA deficiency)
`I Not HLA restricted— the absence of HLA DQ2/8 heterodimers makes it possible to practically rule
`out celiac disease, however, it is also important to note that the presence of HLA DQ 2 or DQ8
`does not always mean celiac disease
`I Intestinal biopsy shows no villous atrophy (Marsh III classification) but there may be minimal
`changes to the lining of the gut (Marsh O—I classification)
`I Possible presence of serum anti—gliadin antibodies (AGA) IgA and/or IgG investigated
`I If the patient reports alleviation of symptoms on a gluten—free diet
`
`If the above criteria are met then the person can be classed as ‘gluten sensitive’ and it can be treated with
`a gluten—free diet for a period of time. This should lead to symptom resolution.
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`Gluten sensitivity - Wikipedia, the free encyclopedia
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`Page 3 of 18
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`A diagnostic algorithm for gluten sensitivity has been proposed:
`
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`Difference between gluten sensitivity and celiac disease
`
`VVhilst the research surrounding gluten sensitivity is still very much emerging, celiac disease is a Well-
`defined condition. It is a lifelong autoimmune condition characterised by the chronic inflammation of
`the intestine. In genetically predisposed children and adults the intake of foods containing gluten leads to
`an immune response in the small intestine. This results in the flattening of the intestinal villi and in
`reduced absorption of nutrients from food which can lead to nutritional deficiencies and associated long-
`term complications such as osteoporosis. It is believed celiac disease affects 1% of the general
`population in the Western World.
`
`In comparison, in a recent clinical paper, gluten sensitivity was defined as ‘one or more of a variety of
`immunological, morphological or symptomatic manifestations that may also be shared by celiac disease
`and irritable bowel syndrome (IBS).[7] In cases where there is reactivity to gluten, yet celiac disease and
`wheat allergy are eliminated as possibilities, gluten sensitivity may be considered. Whilst the general
`clinical picture for gluten sensitivity is similar to celiac disease in particular, it is usually less severe and
`neither anti—tissue transglutaminase antibodies nor autoimmune comorbidities are found.
`
`It is believed that approximately 40-50% of gluten sensitivity patients may have IgG or IgA anti-gliadin
`antibodies (AGA)[8][9] There is also a study identifying approximately 50% of gluten sensitivity patients,
`few more than the general population, carry either HLA DQ 2 or 8 I10]
`
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`Gluten sensitivity - Wikipedia, the free encyclopedia
`
`Page 4 of 18
`
`On closer inspection, it has also been found that gluten-sensitive subjects do not develop full histological
`lesions; their lesions, if any, are limited to types 0-1 of the Marsh classification. In addition, it has been
`found that they have normal intestinal permeability and an increased expression of Toll Like receptors 2
`(TLR2) but no change in the cytokines involved in adaptive immune responses Thl and Thl 7 such as IL
`-6, IL-17 A, IL 21, which are increased only in patients with celiac disease. The knowledge of the
`response in gluten sensitivity to date suggests that on