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`File No. 42590
`
`»
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Seria1No. 76/3 86561
`File on March 25, 2002
`For the mark AGE WELL FORMULAS
`Published in the Oflicial Gazette on December 3, 2002
`
`mmummmulummmunuImmmm
`
`07-14-2003
`U.Sr Patent 8: TMOYC/TM Mail Rcpt D1’. #22
`
`Opposition No. 91156729
`
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`
`AGEWELL, Ltd,
`An Indiana corporation,
`
`Opposer,
`
`V.
`
`OPTIGENE-X, LLC.,
`A New Jersey Limited Liability
`
`Company,
`Respondent
`
`Assistant Commissioner of Trademarks
`
`BOX TTAB — NO FEB
`
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`APPLICANT'S ANSWER TO OPPOSER’S NOTICE OF OPPOSITION
`
`In response to the Notice of Opposition issued by the Board on June 19, 2003,
`
`Optigene-X, LLC (“Applicant”) hereby responds to Agewell, Ltd.
`
`(“Opposer”) as
`
`follows:
`
`1. Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth of the matters asserted in 1] 1 of the Notice of Opposition, and therefore denies same.
`
`2. Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth of the matters asserted in 11 2 of the Notice of Opposition, and therefore denies same.
`
`

`
`File No. 425.90
`
`-
`
`3. Applicant admits that having valid registrations provide constructive notice of
`
`ownership, however, Applicant is without knowledge or information sufficient to form a
`
`belief as to the truth of the matters asserted in 11 3 of the Notice of Opposition, and
`
`therefore denies same. To the extent that Opposer is alleging something more or
`
`different from this, such allegations are denied.
`
`4. Applicant admits that valid registrations constitute prima facie evidence of the
`
`validity of the registrations, however, Applicant is without knowledge or information
`
`sufficient to form a belief as to the truth of the matters asserted in ‘H 4 of the Notice of
`
`Opposition, and therefore denies same. All other inferences and allegations contained in
`
`11 4 are denied.
`
`5. Applicant is without knowledge or information sufficient to form a belief as to the
`
`truth of the matters asserted in 1] 5 of the Notice of Opposition, and therefore denies same.
`
`6. Applicant denies the allegations in ii 6 of the Notice of Opposition.
`
`7. Applicant admits that it is currently using its mark AGE WELL FORMULAS in
`
`interstate commerce, however, Applicant is without knowledge or information sufficient
`
`to form a belief as to the truth of the remaining matters asserted in 1] 7 of the Notice of
`
`Opposition, and therefore denies same. All other inferences and allegations contained in
`
`11 7 are denied.
`
`8. Applicant denies the allegations in 118 of the Notice of Opposition.
`
`9. Applicant denies the allegations in 1! 9 of the Notice of Opposition.
`
`

`
`AFFIRMATIVE DEFENSES
`
`In further answer to the Notice of Opposition, Applicant asserts that:
`
`File No. 425.90
`
`FIRST AFFIRMATIVE DEFENSE
`
`Opposer’s Notice of Opposition fails to state a claim upon which relief can be
`
`granted, and in particular, fails to state legally sufficient grounds for sustaining the
`
`opposition.
`
`SECOND AFFIRMATIVE DEFENSE
`
`Opposer’s registrations have become abandoned through non-use thereof.
`
`THIRD AFFIRMATIVE DEFENSE
`
`Opposer’s
`
`registrations were obtained and maintained fraudulently through
`
`misrepresentations in its applications and through misrepresentations in its Section 8 use
`
`declaration; therefore, its registrations are Void ab initio.
`
`FOURTH AFFIRMATIVE DEFENSE
`
`Applicant’s mark, when used on App1icant’s goods, is not likely to cause confusion,
`
`or to cause mistake, or to deceive as to the affiliation, connection or association of
`
`Applicant with Opposer, or as to the origin, sponsorship, or approval of App1icant’s
`
`goods by Opposer.
`
`

`
`File No. 425.90
`
`RELIEF REQUESTED
`
`WHEREFORE, Applicant respectfully requests that this opposition proceeding be
`
`dismissed, with prejudice.
`
`Respectfully submitted,
`Optigene-X, LLC
`
`By:
`
`g
`
`an, Esq.
`Melvin K. Silve
`Registration No. 26,234
`Attorney for Applicant
`
`Melvin K. Silverman & Assocs, P.C.
`Pinnacle Building
`500 West Cypress Creek Rd.
`Suite 500
`
`Ft. Lauderdale, FL 33309
`TEL. 954-351-7474
`FAX: 954-492-0087
`
`

`
`«
`
`s
`
`File No. 425.90
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that an original and one (1) true and correct copy of thefiregoing
`was placed in the U.S. First Class Mail, postage prepaid, on this ff day of /’//z
`,
`2003, and properly addressed to the United States Patent and Trademark Office, Assistant
`Commissioner for Trademarks, Box TTAB/FEE, 2900 Crystal Drive, Arlington, VA
`22202-3513. One true and correct copy was forwarded as a courtesy by US. First Class
`Mail
`to Angela M. Fifelski of ICE MILLER, One American Square, Box 82001,
`Indianapolis, IN 46282-0002.
`
` David A. Ho f
`
`

`
`J\
`
`MELVIN K. SILVERMAN
`
`MELVIN K. SILVERMAN 8: ASSOCS, P.C.
`REG. PATENT ATTORNEY
`
`oz: couusax,
`
`"1’!//W5
`
`July 9, 2003
`
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`
`07-14-2003
`u.s. Patent 5. TMOfcITM Mail Rep: Dt. #22
`
`commissioner for Trademarks
`TTAB BOX NO FEB
`
`2900 Crystal Drive
`Arlington, VA 22202-35 l3
`
`RE:
`
`Agewell, Ltd. V. Optigene-X, LLC
`0 osition No. 91156729
`
`Dear Sir/Madam:
`
`-A
`
`..
`
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`Enclosed are the following documents for filing in connection with the above-
`referenced matter:
`
`1.
`copy thereof.
`
`Applicant’s Answer to Notice of Opposition and one (1) true and correctfif
`
`H
`
`2.
`
`Return postcard.
`
`Respectfully submitted,
`
`K/4......
`
`MELVIN K. SILVERMAN
`
`Melvin K. Silverman & Assocs, P.C.
`Pinnacle Building
`500 W. Cypress Creek Rd.
`Suite 500
`
`Ft. Lauderdale, FL 33309
`
`Tel: (954) 351-7474
`
`Enclosures:
`
`As above
`
`c.c.: Angela Fifelski/ John F. Prescott, Jr.
`Optigene-X, LLC
`
`PATENT, TRADEMARK AND COPYRIGHT MATTERS
`SUITE 500 0 SOO WEST CYPRESS CREEK ROAD 0 FORT LAUDERDALE, FLORIDA 33309
`TELEPHONE (954) 351-7474 I FAX (954) 492-0087 - EMAIL: ml<s@powerlaw.net 0 wwwpowerpahcom

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