"EXPRESS MAIL" MAILING LABEL No. EV 3 3 7 0 2 4 5 4 9 U5
`
`Iuly 21, 2003
`DATE OF DEPOSIT:
`I HEREBY CERTIFY THAT THIS PAPER OR FEE IS
`BEING DEPOSITED WITH THE UNITED STATES
`POSTAL SERVICE "EXPRESS MAIL POST OFFICE TO
`ADDRESSEE" SERVICE UNDER 37 C.F.R. 1.10 ON THE
`DATE INDICATED ABOVE AND IS ADDRESSED TO THE
`COMMISSIONER OF TRADEMARKS, 2900 CRYSTAL DRIVE,
`ALEXANDRIA, VIRGINIA 22202-3514
`
`Lisa M. Tinnirella
`(TYPED NAME OF PERSON MAILING PAPER OR FEE)
`gm.
`Q!
`(SIGNATURE OF PERSON MAILING PAPER OR FEE
`
`|||||||||l|||||l|ll||||||ll|||||||l|l||||||l||||||
`
`07-21 -2003
`U.S. Patent & TMOfcITM Mail Rcpt Dt. #22
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.:
`
`Atty. Docket No. 6000-151-1
`
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`
`In the matter of:
`
`Application Serial No. 78/ 162428
`
`Applicant: Dreampak, LLC
`
`Filed on: September 10, 2002
`
`Mark: SOLUFLEX
`
`Published: March 25, 2003
`
`Box TTAB FEE
`Assistant Commissioner for Trademarks
`2900 Crystal Drive, Suite 3B-30
`Arlington, VA 22202-3514
`
`NOTICE OF OPPOSITION
`
`W.F. YOUNG, INC. (”W.F. Young” or ”Opposer”), a Massachusetts corporation,
`
`having a place of business located at 302 Benton Drive, East Longmeadow,
`
`Massachusetts 01028, believes that it will be damaged by registration of the mark in the
`
`following application:
`
`

`
`Application Serial No. 78/ 162428 (the ”Application”), filed September 10, 2002 by
`
`Dreampak, LLC (the ”Applicant”) and published for opposition in the Official Gazette
`
`on March 25, 2003, seeking registration of the mark SOLUFLEX in non-stylized form for
`
`the goods and / or services listed in the following classification:
`
`International Class: 005
`
`Dietary supplement
`
`Opposer has filed three requests for extension of time to file its opposition, which
`
`were all granted. Time for filing the opposition now extends to July 23, 2003. W.F.
`
`Young opposes the Application, and in particular opposes registration in International
`
`Class 5, Dietary supplement.
`
`The grounds for the Opposition are as follows:
`
`1.
`
`Opposer has continuously used the name FLEX + in commerce on or in
`
`connection with the sale of nutritional supplements in International Class 5, including
`
`animal feed additives for use as a nutritional supplements, since at least 2001.
`
`2.
`
`Opposer has continuously used the name FLX + in commerce on or in
`
`connection with the sale of nutritional supplements in International Class 5, including
`
`animal feed additives for use as a nutritional supplements, since at least 2002.
`
`3.
`
`Opposer obtained a registration for the mark FLEX + in International
`
`Class 5, for animal feed additives for use as a nutritional supplement, on July 16, 2002
`
`(Reg. No. 2,595,959) (the ”’959 registration). See Exhibit A.
`
`4.
`
`Opposer obtained a registration for the mark FLX + in International Class
`
`5, for animal feed additives for use as a nutritional supplement, on Ianuary 7, 2003 (Reg.
`
`No. 2,672,059) (the ”’059 registration). See Exhibit B.
`
`

`
`5.
`
`The Applicant is currently using the mark SOLUFLEX with the additional
`
`terms ”PLUS” and ”2” so that its goods bear the mark ”SOLUFLEX PLUS 2.”
`
`Fitzil’
`
`Additionally, the Applicant's mark features ”SOLU” in a different font from ”FLEX” and
`
`features the word ”PLUS” superimposed on top of ”FLEX” such that the dominant
`
`portion of the mark is ”FLEX PLUS.” See Exhibit C.
`
`6.
`
`In connection on or in connection with the sale of Applicant's identified
`
`goods are simply ”nutritional supplements” in International Class 5. As such, Applicant
`
`is able to use the mark in commerce on or in connection with the sale of Opposer’s
`
`goods, i.e., animal feed additives for use as a nutritional supplement.
`
`7.
`
`Opposer offers goods for both animal and human use. See Exhibit D.
`
`Opposer intends use the mark FLEX PLUS in commerce on or in connection with the
`
`sale of its goods intended for human use.
`
`8.
`
`Registration of Applicant's mark which is the subject of the application at
`
`issue in this opposition is barred by the provisions of Section 2(d) of the Trademark Act
`
`of 1946 because said mark consists of or comprises a mark which so resembles a mark
`
`previously registered in the United States Patent and Trademark Office and used in the
`
`United States by Opposer and not abandoned, as to be likely, when used in connection
`
`with the goods/ services of the Application to cause confusion, mistake or deception.
`
`9.
`
`More specifically, Applicant's mark is similar to Opposer’s aforementioned
`
`previously used and registered marks, the ’O59 and ’959 registrations.
`
`10.
`
`Upon information and belief, Applicant's goods are identical or related to
`
`or complement the goods offered by Opposer under their respective marks. For
`
`example, Applicant's goods are dietary supplements for joint care and joint pain relief.
`See Exhibit E. Applicant's goods contain Glucosamine. See id. Opposer’s goods are also
`
`for joint care and the relief of joint pain. See Exhibit F. Similarly, Opposer’s goods
`
`contain Glucosamine. See id.
`
`

`
`11.
`
`Upon information and belief, the goods which are to be offered by
`
`Applicant under its mark will be encountered by the same or a similar class of
`
`purchasers as those who are interests in or familiar with the goods offered by Opposer
`
`in connection with their respective marks asserted herein. Moreover, on information
`
`and belief, the channels of trade at issue overlap. For example, Applicant's nutritional
`
`supplements in International Class 5 are likely marketed and sold to the very same
`
`consumers to which Opposer sells its nutritional supplements in International Class 5.
`
`12.
`
`Applicant's mark which is the subject of the application at issue in this
`
`opposition as used as shown in Exhibit C, so resembles Opposer’s previously used and
`
`registered marks as to be likely to case confusion, to cause mistake or to deceive. The
`
`likelihood of confusion, mistake or deception that would arise from concurrent use and
`
`registration of the applied for mark with Opposer’s use and registration of their
`
`respective mark is damaging to the Opposer in that (a) persons are likely to believe that
`
`Applicant's goods and services have their source in Opposer, or (b) that Applicant and
`
`its goods and services are in some way legitimately connected of affiliated with,
`
`sponsored, approved, endorsed or licensed by Opposer when, in fact, they are not.
`
`Accordingly, registration of Applicant's mark is barred by the provisions of Section 2(d)
`
`of the Trademark Act of 1946, 15 U.S.C. § 1052(d).
`
`13.
`
`Further, Opposer will be damaged by the registration sought by
`
`Applicant with the meaning of 15 U.S.C. §1063 because such registration would support
`
`and assist Applicant in the confusing, misleading and dilutive use of Applicant's mark
`
`which is the subject of the application at issue in this opposition, and would given color
`
`of exclusive statutory rights to Applicant in violation and derogation of the prior and
`
`superior rights of Opposer.
`
`WHEREFORE, Opposer requests that this opposition be sustained and that
`
`registration be denied to Applicant on its Application Serial No. 76/201,759.
`
`

`
`This document is being submitted in triplicate as required by 37 C.F.R. § 2.102(d).
`
`Please charge our Deposit Account No. 13~0235 in the amount of $300.00 to cover
`the necessary fees for filing this Notice. Any additional fees in this matter may also be
`
`charged to Deposit Account No. 13-0235.
`
`Respectfully submitted,
`
`
`
`evin H. Vanderleeden, Esq.
`Registration No. 51,096
`Attorney for Opposer
`
`
`
`MCCORMICK, PAULDING & HUBER LLP
`CityPlace II, 185 Asylum Street
`Hartford, CT 06103-4102
`Tel: (860) 549-5290
`Fax: (413) 733-4543
`
`

`
` 1
`
`Laueéiisianus lnfo
`’_- Mix
`
`7/21/03 4:01 PM
`
`Tihjank you for your request. Here are the latest results from the TARR web server.
`x
`page was generated by the TARR system on 2003-07-21 15:53:01 ET
`Number: 76277759
`Rgigistration Number: 2595959
`
`Mark (words only): FLEX +
`
`Current Status: Registered.
`
`Date of Status: 2002-07-16
`
`Filing Date: 2001-06-28
`
`Registration Date: 2002-07-16
`
`Law Office Assigned: TMO Law Office 115
`
`If you are the applicant or applicant’s attorney and have questions about this file, please contact the
`Trademark Assistance Center at TrademarkAssistanceCenter@uspto.gov
`
`Current Location: 900 -Warehouse (Newington)
`
`Date In Location: 2002-07-29
`
`CURRENT APPLICANT(S)/OWNER(S)
`
`1. W.F. YOUNG, INCORPORATED
`
`Address:
`
`W.F. YOUNG, INCORPORATED
`302 Benton Drive
`
`East Longmeadow, MA 010281990
`United States
`
`State or Country of Incorporation: Massachusetts
`Legal Entity Type: Corporation
`—
`
`GOODS AND/OR SERVICES
`
`-«-
`
`Animal Feed Additive for Use as a Nutritional Supplement
`International Class: 005
`First Use Date: 2001-09-09
`
`1-»
`
`u
`
`;
`
`http://tarr.usplo.gov/servlet/tarr?regser=seria1&entry=76277759
`
`Page 1 of2
`
`

`
`
`
`7/21/03 4:01 PM
`
`Latesg1_$tams Info
`
`Use in Commerce Date: 2001-09-09
`
`Bésfgsisz 1(a)
`
`A
`
`A
`
`\.
`.=:—p;__._
`3
`(NOT AVAILABLE)
`
`we W4
`ADDITIONAL INFORMATION
`
`
`
`PROSECUTION HISTORY
`
`2002-07-16 Registered - Principal Register
`
`2002-03-03 - Allowed for Registration - Principal Register (SOU accepted)
`
`2002-02-23 - Case file assigned to examining attorney
`
`2002-02-20 - Statement of use processing complete
`
`2002-02-05 - Amendment to Use filed
`
`2002-01-01 - Notice of allowance - mailed
`
`2001-10-09 - Published for opposition
`
`2001-09-19 - Notice of publication
`
`2001-08-24 - Approved for Pub - Principal Register (Initial exam)
`
`2001-O8-23 - Case file assigned to examining attorney
`_,
`__
`
`4-a.
`
`CONTACT INFORMATION
`
`Correspondent (Owner)
`Arthur F. Dionne (Attorney of record)
`
`ARTHUR F. DIONNE
`
`MCCORMICK, PAULDING & HUBER LLP
`CITYPLACE II
`
`185 ASYLUM STREET, 18TH FLOOR
`HARTFORD, CONNECTICUT 06103-4102
`United States
`
`Phone Number: (860) 549-5290
`taxi» ;—
`-
`-
`=-
`
`»
`
`.__%.
`
`1-1:
`
`http://larr.uspto.gov/servlet/tarr'?regser=serial&emry=76277759
`
`Page 2 of2
`
`

`
`
`
`La(est§_tatus lnfo
`
`7/21/03 4:02 PM
`
`you for your request. Here are the latest results from the TARR web server.
`page was generated by the TARR system on 2003-07-21 15:53:21 ET
`Number: 76385353
`Registration Number: 2672059
`
`Mark (words only): FLX +
`
`Current Status: Registered.
`
`Date of Status: 2003-01-07
`
`Filing Date: 2002-03-21
`
`Registration Date: 2003-01-07
`
`Law Office Assigned: TMO Law Office 115
`
`If you are the applicant or applicant’s attorney and have questions about this file, please contact the
`Trademark Assistance Center at TrademarkAssistanceCenter@uspto.gov
`
`Current Location: 900 -Warehouse (Newington)
`
`Date In Location: 2003-02-25
`
`CURRENT APPLICANT(S)/OWNER(S)
`
`1. W.F. YOUNG, INCORPORATED
`
`Address:
`
`W.F. YOUNG, INCORPORATED
`302 Benton Drive
`
`East Longmeadow, MA 01028
`United States
`
`State or Country of Incorporation: Massachusetts
`Legal Entity Type: Corporation
`
`_ GOODS AND/OR SERVICES
`
`Animal feed additive for use as a nutritional supplement
`International Class: 005
`First Use Date: 2002-02-28
`
`hnp://tan’.uspto.gov/servlet/tarr'?regser=seria1&entry=76385353
`
`Page 1 0f2
`
`

`
`Latestzsgalus Info
`
`7/21/03 4:02 PM
`
`F Use in Commerce Date: 2002-02-28
`Biifgisz 1(a)
`
`
`in-...,
`(NET AVAILABLE)
`
`ADDITIONAL INFORIVIATION
`
`A...
`
`gr
`
`L
`
`$5
`
`PROSECUTION HISTORY
`
`2003-01-07 - Registered - Principal Register
`
`2002-10-15 - Published for opposition
`
`2002-09-25 — Notice of publication
`
`2002-07-17 — Approved for Pub - Principal Register (Initial exam)
`
`2002-07-16 - Case file assigned to examining attorney
`
`2002-07-12 - Case file assigned to examining attorney
`
`—-
`
`-
`
`CONTACT INFORMATION
`‘I: A 1.
`
`Correspondent (Owner)
`Arthur F. Dionne, Esq. (Attomey of record)
`
`ARTHUR F. DIONNE, ESQ.
`MCCORMICK, PAULDING & HUBER LLP
`185 ASYLUM STREET, CITYPLACE II
`HARTFORD CT 06103
`
`United States
`
`Phone Number: (413) 736-5401
`Fax Number: (413) 733-4543
`
`2
`
`n.:~..._
`
`http://larr.uspto.gov/servlet/larr'?regse)=serial&entry=76385353
`
`Page 2 Of 2
`
`

`
`SoluFl L Plus — Joint Care
`
`7/2 1/03 l:43 PM
`
`
`
`A complete dietary supplement for joint care.
`SoluFIexl’|us2“ is the only product of its kind that provides
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`7/21/03 I243 PM
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`Absorbing; The Horse World‘s Most Trusted Name!
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`SoluFlExTPlus
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`7/2|/03 l:42 PM
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`SoluF|ex Joint Care And Joint Pain Relief
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`IiiAdvanced Search
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`°SoluF|ex Plus 2
`
`“Complete Joint Care
`‘’
`
`'
`
`Price
`
`Qty
`
`Order
`
`
`
`°° $24.99
`
`"Detailed Description
`
`SoluFlex“ Plus 2 is a complete dietary supplement for joint
`care and the only product of its kind that provides soluble
`nutrients via a patent pending Fruit Gel Delivery System to
`naturally help maintain your joints and cartilage for an
`active life style.
`
`SoluF|ex“ Plus 2 contains Glucosamine, a substance that is
`naturally produced in your body and serves as a building
`block for healthy joints.
`
`SoluFlex“ Plus 2 ALSO contains Chondroitin, an essential
`nutrient that helps support a healthy cartilage structure,
`acts as bait to draw the other nutrients to the joints.
`
`http://www.soluflexplus.com/product.asp'?3=9
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`EXHIBIT‘
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`E
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`Page I of2
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`

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`SoluFle)g--..,Plus
`-'- -.~.l
`
`
`
`in
`
`SoluFlex“ Plus 2 is the only dietary supplement that
`includes Hydrated Collagen for better absorption and bio-
`availability in your body. Collagen is a structural protein,
`forming the main constituent of the supporting tissue and
`connective tissue in humans.
`
`30-Day Supply - contains Glucosamine HCI, 1500mg;
`Chondroitin Sulfate, 1200mg; and Collagen, 3000mg per
`serving.
`
`7/2 H03 [:42 PM
`
`Copyright ' 2000
`Powered by MonsterCommerce.com Shopping Cart Software. Copyright 2000-2002
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`htlp://www.soluflexplus.com/producLasp?3=9
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`Page 2 of2
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`

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`Active Ingredients
`
`7/21/03 3:40 PM
`
`Active ingredients
`
`MAXIMUM STRENGTH
`
`COMPLETE Dietary Supplement for YOUR JOINT HEALTH!!
`
`SOLUBLE GLUCOSAMINE: 1500 mg
`HYDRATED CHONDROITIN: 1200mg (only in SoluF|exlPlus2"“):
`HYDRATED COLLAGEN: 3000lmg
`
`SOLUBLE GLUCOSAMIN E:
`
`- Absorbable building blocks for building the cartilage. *
`0 Shown in clinical studies to significantly relieve articular pain, joint tenderness and
`swelling.*
`- Prevents further degeneration of the articular cartilages.*
`- Extracted from crab, shrimp and lobster shells.
`
`HYDRATED CHONDROZTIN (only in SoluFlexPlus2"“):
`
`- Vital and natural compound for lubricating joint membranes in hydrated form for greater
`absorption. *
`- Clinically proven to reduce pain and increase mobility.*
`- Concentrates in the synovial fluid and cartilage, resulting in an anti—inflammatory and
`chondroprotective effect.*
`- Extracted from beef and shark cartilage.
`
`HYRATIED HYDROLVZED-COLLAGEN:
`
`Collagen is a structural protein which constitutes 25% of the human body's proteins.
`Forms the main constituent of the supporting tissue and muscles.
`Main constituent of connective tissues.
`Found in skin, cartilage, tendons and bones.
`
`
`
`*The Food and Drug Administration have not evaluated the previous statements. Ingredients mentioned
`above are not intended to diagnose, treat, cure or prevent disease.
`
`°Home — S0luFIexP1us - S0luFlcx Plusl - Drinkable - For Your Dog — FAQ - Treating Arthritis - How S0luFlexPlus Works
`
`hltp://ww\v.so|uflexplus.com/aclive.hlm
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`Page I ofl
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`

`
`SmartP‘al;,'Equine -
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`BUILD YOUR SMARTPAK
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`SHOP FOR SUPPUES
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`ORDERING INFO
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`|
`
`
`Albsorbine Flex+
`Absorbine
`
`$37.80 '- ' $76.99
`
`PRODUCT DESCRIPTION:
`Absorbine Flex+ reduces inflammation plus aids in the prevention and rehabilitation of debilitating joint degeneration in horses. Flex+ is
`the first and only joint nutrition supplement with a triple action formula, a synergistic combination of ingredients that ensures maximum
`utilization of its 100% active ingredients. Flex+ is fortified with Natural Glou, an absorption catalyst featuring nutrient-rich, stabilized
`rice bran to aid in the delivery and performance of two glucosamines, MSM, and yucca. Absorbine Flex+ is highly palatable and
`contains pharmaceutical-grade ingredients, yet it is a cost-effective daily supplement regimen. Absorbine Flex+ is the biggest step
`forward in the history of joint nutrition ever - or it wouldn’t have earned the Absorbine name.
`INSTRUCTIONS:
`
`For maximum results the initial administration period is 21 days. if a horse shows little or no response after 21 days, extend the initial
`dosage for two (2) more weeks.
`
`Average Horse 750 - 1,200 lbs:
`Initial Administration of 2 scoops both AM & PM.
`Suggested Maintenance Administration of 1 scoop both AM 8. PM
`
`Large Horse 1,200 - 1,500 lbs:
`Initial Administration of 2 1/2 scoops both AM & PM.
`Suggested Maintenance Administration of 1 1/2 scoops both AM 8. PM
`
`Over 1,500 lbs:
`Initial Administration of 3 scoops both AM 8. PM.
`Suggested Maintenance Administration of 2 scoops both AM & PM
`
`PRECAUTIONS:
`
` Keep lid tightly secured to insure freshness.
`
`Store in a cool, dry area out of direct sunlight.
`
`E-MAIL us
`1-800-4Gl—8898
`
`Caution: For animal use only. Keep out of reach of children.
`
`mama.
`
`SMARTPAK DEFAULT DOSING:
`
`Maintenance Dose:
`
`2 scoops (64 g) daily ‘
`
`Loading 00561 Maintenance dose plus 2 scoops (64 g) for 4 weeks °
`
`GUARANTEED ANALYSIS:
`
`Ingredient
`
`Glucosamine Sulfate’
`
`N—Acetyl Glucosamine’
`
`Methy|su|fony|methane'
`
`Yucca Powder“
`
`Stabilized Rice Bran"
`
`INGREDIENTS:
`
`http2//www.smarlpakequinecoin/productclassdcscription.asp?productclassid=‘)
`
`Per Serving
`
`2460 mg’
`
`780 mg“
`
`780 mg’
`
`3300 mg“
`
`57.432 g’
`
`Per Pound
`
`°
`
`°
`
`'’
`
`'
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`°
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`EXHIBIT
`
`P385 I Ofz
`
`

`
`"EXPRESS MAIL" MAILING LABEL NO.
`
`EV3 3 7 0 2 4 6 4 9 US
`
`DATE OF DEPOSIT:
`
`ul 21 2003
`
`I HEREBY CERTIFY THAT THIS PAPER OR FEE IS
`BEING DEPOSITED WITH THE UNITED STATES
`POSTAL SERVICE "EXPRESS MAIL POST OFFICE TO
`ADDRESSEE" SERVICE UNDER 37 C.F.R. 1.10 ON THE
`DATE INDICATED ABOVE AND IS ADDRESSED TO THE
`COMMISSIONER OF TRADEMARKS, 2900 CRYSTAL DRIVE,
`ALEXANDRIA, VIRGINIA 22202-3514
`
`Lisa M. Tinnirella
`
`(TYPED N
`
`E OF PERSON MAILING PAPER OR FEE)
`
`(SIGNATURE OF PERSON MAILING PAPER OR FEE
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.:
`
`Atty. Docket No. 6000-151-1
`
`In the matter of:
`
`Application Serial No. 78/162428
`
`Applicant: Dreampak, LLC
`
`Filed on: September 10, 2002
`
`Mark: SOLUFLEX
`
`Published: March 25, 2003
`
`Assistant Commissioner for Trademarks
`
`2900 Crystal Drive, Suite 3B-30
`Arlington, VA 22202-3514
`
`§/\./%%/€\2\)\I\J\_/é
`
`APPOINTMENT OF ASSOCIATE ATTORNEY
`
`SIR:
`
`1, Arthur F. Dionne, Registration No. 23,093, am a principal attorney of record in
`
`the above-identified matter, and I hereby appoint Kevin H. Vanderleeden, Registration
`
`No. 51,096, as an associate attorney of record in the above—identified matter.
`
`Respectfully submitted,
`
`By; 22%
`
`Arthur F. Dionne, Esq.
`Registration No.
`Attorney for Opposer
`
`’
`MCCORIVIICK, PAULDII\IG & HUBER LLP
`CityPlace II, 185 Asylum Street
`Hartford, CT 06103-4102
`Tel.: (860) 549-5290
`Fax: (860) 527-0464