IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`I|II||I|IlII|Il|lllIlIII||IIIIIIIIIIIIIIIIIIIIIIII
`
`03-1 6-2004
`U.S- PC1001 l TMOTOITM MIII RGOC D1. 022
`
`Mark:
`
`OS PHARMA
`
`Serial No.:
`
`76I454803
`
`Filed:
`
`October 2, 2002
`
`Published: November 18, 2003
`
`) ) ) )
`
`) ) I I
`
`)
`
`R & S PHARMA HOLDINGS, INC.
`
`Opposer
`
`v.
`
`QS PHARMA LLC
`
`Applicant
`
`CERTIFICATE OF MAILING BY FXPRESS MAIL
`
`THE UNDERSIGNED CERTIFIES THAT HE/SHE Is MAILING THIS
`MATERIAL av EXPRESS MAIL (LABEL No. EV 211075305 us)
`ADDRESSED TO BOX '|'l'AB,
`FEE. COMMISSIONER I=oR
`TRADEMARKS, 2900 CRYSTAL DFIIVE, ARLINGTON, VIRGINIA
`22202-3513, ON THIS 16"‘ DAY OF MARCH, 2004.
`
`Box TTAB
`
`Fee
`
`Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, Virginia 22202-3513
`
`$600 FILINQ FEE SUBMITTED
`
`FILED IN TRIPLICATE
`
`NOTICE OF OPPOSITION
`
`Pursuant to 15 U.S.C. § 1063 and 37 C.F.R. § 2.104, R&S PHARMA, Inc.,
`
`03/19/mo4 JHg{E(gP5>0§&)5'D3 balgeaxées that it would be damaged by the registration of the above—identitied
`600.00 DP
`01 FC:640E
`
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.
`
`I|II||I|IlII|Il|lllIlIII||IIIIIIIIIIIIIIIIIIIIIIII
`
`03-1 6-2004
`U.S- PC1001 l TMOTOITM MIII RGOC D1. 022
`
`Mark:
`
`OS PHARMA
`
`Serial No.:
`
`76I454803
`
`Filed:
`
`October 2, 2002
`
`Published: November 18, 2003
`
`) ) ) )
`
`) ) I I
`
`)
`
`R & S PHARMA HOLDINGS, INC.
`
`Opposer
`
`v.
`
`QS PHARMA LLC
`
`Applicant
`
`CERTIFICATE OF MAILING BY FXPRESS MAIL
`
`THE UNDERSIGNED CERTIFIES THAT HE/SHE Is MAILING THIS
`MATERIAL av EXPRESS MAIL (LABEL No. EV 211075305 us)
`ADDRESSED TO BOX '|'l'AB,
`FEE. COMMISSIONER I=oR
`TRADEMARKS, 2900 CRYSTAL DFIIVE, ARLINGTON, VIRGINIA
`22202-3513, ON THIS 16"‘ DAY OF MARCH, 2004.
`
`Box TTAB
`
`Fee
`
`Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, Virginia 22202-3513
`
`$600 FILINQ FEE SUBMITTED
`
`FILED IN TRIPLICATE
`
`NOTICE OF OPPOSITION
`
`Pursuant to 15 U.S.C. § 1063 and 37 C.F.R. § 2.104, R&S PHARMA, Inc.,
`
`03/19/mo4 JHg{E(gP5>0§&)5'D3 balgeaxées that it would be damaged by the registration of the above—identitied
`600.00 DP
`01 FC:640E
`
`
`
`trademark, and hereby opposes the same, on the grounds set forth below.
`
`The Parties
`
`1.
`
`Opposer, R&S PHARMA HOLDINGS, Inc., is a corporation organized and
`
`existing under the laws of the Commonwealth of Kentucky, currently located and doing
`
`business at 701 Columbia Avenue, Glasgow, Kentucky 42141.
`
`2.
`
`Applicant, OS PHARMA LLC, upon information and belief, is a Delaware
`
`limited liability company with a place of business at 28 Country Gates Drive,
`
`Wilmington, Delaware 19810.
`
`The Grounds for Opposition
`
`3.
`
`Opposer is the assignee/owner of U.S. Trademark Registration No.
`
`2618552,
`
`for the mark Fl&S PHARMA in International Class 005 for “Nutritional
`
`supplements; pharmaceutical preparations for the treatment of conditions of the bones,
`
`muscles, skin, eyes and ears, cardiovascular system,
`
`respiratory system, central
`
`nervous system,
`
`reproductive system, urinary system and gastrointestinal system;
`
`pharmaceutical preparations for the treatment of tumors; for the treatment of impotence;
`
`hormones;
`
`blood substitute
`
`for humans;
`
`anti-inflammatories;
`
`cough treatment
`
`preparations; antibiotic and anti-infectives; viral, bacterial and rabies vaccines; toxoids;
`
`oral contraceptives; sedatives; analgesics;
`
`topical antiseptics, creams and antibiotic
`
`ointments for dermatological and ophthalmic use”, which was registered on the Principal
`
`Register on September 10, 2002.
`
`4.
`
`Said registration for the mark R & S PHARMA was based on an
`
`application filed in the U.S. Patent and Trademark Office on June 30, 1999, which is a
`
`
`
`
`
`
`
`Respectfully submitted,
`
`STOLL, KEENON & PARK, LLP
`300 West Vine Street, Suite 2100
`Lexington, Kentucky 40507
`(859) 231-30
`
`
`
` for Oppose
`
`
`Idings, Inc.
`
`R & S
`
`Dated: March 16, 2004
`
`399\C:\Work\JSR\R&S Phanna lP\Opposition\Not of 0ppos.doc
`
`
`
`
`
`date prior to the date of filing of applicant's intent to use application and prior to any use
`
`by Applicant of its alleged mark.
`
`5.
`
`Said registered mark of Opposer is valid and subsisting and is conclusive
`
`evidence of Opposer's exclusive right to use said mark in commerce on the goods
`
`specified in said registration. Said use has been valid and continuous since said date of
`
`first use and the relevant class of the public has come to associate Opposer with said
`
`designation.
`
`6.
`
`Applicant filed an intent to use application Serial No. 76/454803 for the
`
`mark QS PHARMA, in International Class 005 for ‘‘Pharmaceutical preparations for the
`
`prevention, mitigation, and treatment of cancer, cardiovascular diseases, central
`
`nervous system diseases, gastrointestinal diseases,
`
`infections, metabolic diseases,
`
`musculoskeletal diseases, obesity, respiratory diseases, thromboembolic diseases, and
`
`urogenital diseases" and in International Class 035 for “outsourcing services for
`
`pharmaceutical and other companies relating to the development of compounds and
`
`determining the viability and usefulness of compounds for medical and other
`
`applications."
`
`7.
`
`For the Pending Application, Applicant has designated the law firm
`
`Woodcock Washburn LLP, One Liberty Place, 46”‘ Floor, Philadelphia, PA 19103, as its
`
`designated representative upon whom notice or process in proceedings affecting the
`
`mark may be served. The attorney of record who has corresponded with the Trademark
`
`Office regarding the Pending Applications is Denise I. Mroz, of that law office.
`
`8.
`
`Opposers goods and services are the same as or highly related to those
`
`claimed in Applicant's Pending Application.
`
`
`
`
`
`9.
`
`On information and belief, Applicant has not used the claimed mark QS
`
`PHARMA in commerce to identity Applicant's goods or services or to distinguish them
`
`from those offered by others.
`
`10.
`
`The mark OS PHARMA is not registrable to Applicant under Section 1(a)
`
`of the Lanham Act.
`
`11.
`
`The mark OS PHARMA is not registrable to Applicant under Section 2(d)
`
`of the Lanham Act.
`
`12.
`
`Opposer is likely to be damaged by registration to Applicant of the mark
`
`OS PHARMA, in view of the similarity of the respective marks and the related nature of
`
`the goods/services of the respective parties, thus it is alleged that Applicant's mark so
`
`resembles Opposer's registered mark, as to be likely to cause confusion, or to cause
`
`mistake, or to deceive.
`
`13.
`
`Opposer is also likely to be damaged by registration to Applicant of the
`
`mark QS PHARMA,
`
`in that the prima facie effect of such registration would cause
`
`dilution under 15 U.S.C. §1125(c).
`
`WHEREFORE, Opposer respectfully requests that this Notice of Opposition be
`
`sustained; that Pending Application Serial No. 76/454803 be denied registration.
`
`Opposer hereby appoints Stoll, Keenon & Park, LLP, a law firm including the
`
`following attorneys, Joanne S. Richards, William L. Montague Jr., and Mark Taylor, all
`
`members of the bar of the Commonwealth of Kentucky, to act as attorneys for opposer
`
`herein, with full power to prosecute said opposition, to transact all relevant business
`
`with the Patent and Trademark Office and in the United States Courts and to receive all
`
`official communications in connection with this Opposition.
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