`ESTTA106797
`ESTTA Tracking number:
`10/30/2006
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91171839
`Plaintiff
`Bayer Consumer Care LLC
`Bayer Consumer Care LLC
`Bayer Consumer Care LLC
`36 Columbia Road
`Morristown, NJ 07962
`UNITED STATES
`Chelseaa Larsen
`Heller Ehrman LLP
`333 Bush Street
`San Francisco, CA 94104
`UNITED STATES
`sf-trademark@hellerehrman.com, chelseaa.larsen@hellerehrman.com
`Answer to Counterclaim
`Chelseaa Larsen
`sf-trademark@hellerehrman.com
`/ChelseaaLarsen/
`10/30/2006
`Scan001.PDF ( 4 pages )(80982 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Ap lication Serial No. 78/727,119
`Published in the Ogficial Gazette on June 13, 2006
`
`Trademark: DE
`
`LEVE
`
` Bayer Consumer Care LLC,
`
`Opposer
`
`Opposition No. 91 171839
`
`
`
`
`
`V.
`
`Calgenex Corporation,
`
`
`
`OPPOSER’S ANSWER TO
`APPLICANT’S COUNTERCLAIMS
`FOR CANCELLATION BASED ON
`GENERICNESS
`Applicant.
`
`
`Opposer Bayer Consumer Care LLC (“Opposer”) hereby responds to the
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`Counterclaims filed by Applicant Calgenex Corporation as follows:
`
`1.
`
`2.
`
`Opposer denies the allegations in paragraph 24 of the Counterclaims.
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`As to paragraph 25, Opposer admits that it is the owner of the registered
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`mark ALEVE for “anti-inflammatory, analgesic, and antipyretic pharmaceutical
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`preparations” in Class 5 as shown at United States Registration No. 1,536,042. Except as
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`expressly admitted herein, Opposer denies the allegations in paragraph 25 of the
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`Counterclaims.
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`3.
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`4.
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`Opposer denies the allegations in paragraph 26 of the Counterclaims.
`
`As to paragraph 27, Opposer admits that United States Registration No.
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`1,536,042 issued on April 25, 1989. Except as expressly admitted herein, Opposer
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`denies the allegations in paragraph 27 of the Counterclaims.
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`
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`5.
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`6.
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`7.
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`Opposer denies the allegations in paragraph 28 of the Counterclaims.
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`Opposer denies the allegations in paragraph 29 of the Counterclaims.
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`As to paragraph 30, Opposer admits that it offers a pharmaceutical
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`preparation containing naproxen sodium under the ALEVE mark. Except as expressly
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`admitted herein, Opposer denies the allegations in paragraph 30 of the Counterclaims.
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`8.
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`In response to paragraph 31 of the Counterclaims, Opposer repeats and
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`incorporates by reference its answers to paragraphs 24 through 30 as though fully set
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`forth herein.
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`9.
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`Opposer denies the allegations in paragraph 32 of the Counterclaims.
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`10.
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`In response to paragraph 33 of the Counterclaims, Opposer repeats and
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`incorporates by reference its answers to paragraphs 24 through 32 as though fully set
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`forth herein.
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`11.
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`Opposer denies the allegations in paragraph 34 of the Counterclaims.
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`AFFIRMATIVE DEFENSES
`
`1.
`
`Applicant’s Counterclaims are barred because Opposer’s ALEVE mark is
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`not, and has never been, generic.
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`2.
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`Applicant’s Counterclaims are barred because Opposer’s ALEVE mark is
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`not, and has never been, descriptive.
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`3.
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`Applicant’s Counterclaim for descriptiveness is barred because Opposer’s
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`ALEVE mark has achieved incontestable status and therefore cannot be canceled under
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`15 U.S.C. §§1065.
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`
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`4.
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`Applicant’s Counterclaims are barred for failure to state a claim on which
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`relief can be granted.
`
`Dated: October /00 , 2006
`
`Respectfully submitted,
`HELLER EHRMAN LLP
`
`By:
`
`
`
` Bet M.
`an
`
`Chelseaa E. Larsen
`Attorneys for Bayer Consumer Care LLC
`333 Bush Street
`San Francisco, CA 94104
`415-772-6000
`
`Please refer to Our File No.: 24172-0059
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing OPPOSER’S ANSWER TO APPLICANT’S
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`COUNTERCLAIMS FOR CANCELLATION BASED ON GENERICNESS was mailed
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`first-class mail, postage pre-paid, on October 30, 2006, to Applicant at the following
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`address:
`
`Jim Mosbaugh
`Calgenex Corporation
`9950 Princess Palm Avenue, Suite 320
`
`Tampa, FL 33619
`
`Dated: October 9)?)
`
`, 2006
`
`By:
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