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`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of the Application Serial No. 78/784,309
`Published in the Oflicial Gazette on August 22, 2006
`Trademark: ESTROLEVE
`
`Opposition No. 91 172882
`
`Attn: David M. Mermelstein
`
`BayeriCionst1:1/ner
`
`in
`
`Opposer
`
`v.
`
`George K. Zoorob,
`
`Applicant
`
`Dear Mr. Mermelstein
`
`I have enclosed a copy of the proof of service of the answer on plaintiff, as required by
`Trademark Rule 2.119 (a).
`
`Sincerel
`
`
`
`
`
`fix
`G orge K. Zoorob
`Applicant
`
`
`
`1 1-08-2006
`
`U.S. Patent &TMOfclTM Mail Rcpt D1. #22
`
`
`
`TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of the Application Serial No. 78/784,309
`Published in the Oflicial Gazette on August 22, 2006
`Trademark: ESTROLEVE
`
`Opposition No. 91 172882
`
`Attn: David M. Mermelstein
`
`BayeriCionst1:1/ner
`
`in
`
`Opposer
`
`v.
`
`George K. Zoorob,
`
`Applicant
`
`Dear Mr. Mermelstein
`
`I have enclosed a copy of the proof of service of the answer on plaintiff, as required by
`Trademark Rule 2.119 (a).
`
`Sincerel
`
`
`
`
`
`fix
`G orge K. Zoorob
`Applicant
`
`
`
`1 1-08-2006
`
`U.S. Patent &TMOfclTM Mail Rcpt D1. #22
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify -that a copy of the foregoing APPLICANT’S RESPONSE TO THE
`OPPOSITION #91172882 was sent by First Class Mail on October / f, 2006 to Chelsea
`E. Larson and Bayer Consumer Care, LLC at the following addresses:
`
`Chelseaa E. Larsen
`
`Heller Ehrman LLP
`
`333 Bush Street
`
`San Francisco, CA 94104
`
`Bayer Consumer Care, LLC
`36 Columbia Rd.
`
`Morristown, NJ 07962
`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of the Application Serial No. 78/784,309
`Published in the Qflicial Gazette on August 22, 2006
`Trademark: ESTROLEVE
`Opposition No. 91 172882
`
`Arm: David M. Mermelstein
`
`
`
`Bayer Consumer Care LLC,
`
`APPLICANT’S ADDENDUM TO
`ANSWER OF OPPOSTION
`
`
`
`Opposer
`
`v.
`
`George K. Zoorob,
`
` Applicant
`
`
`
`ADDENDUM TO THE RESQNSE TO OPPOSITION # 21172882
`
`The previously filed opposition is being addressed in accordance to comply with Federal
`Rule of Civil Procedure 8(b) and TBMP §3l1.02. The opposing council, Ms. Chelseaa
`LarsenhasrecognizedthatIamactingProSe,andlamnotanattorneyorbeing
`represented by an attorney. She requests in previous oppositions, that the answer to the
`opposition comply with the Federal Rules of Civil Procedure and I am going to try to do
`the best of my ability.
`
`In response to opposition: Opposer alleges:
`
`1.
`
`George K. Zoorob (“Applicant”) has an application to register the mark
`
`ESTROLEVE for “dietary supplement—vitamins” in International Class 5, as evidenced
`
`by the publication of such mark in the Oflicial Gazette on August 22, 2006. Applicant
`
`admits that he has an application to register the mark ESTROLEVE.
`
`2.
`
`Applicant is, upon information and belief, and individual, having an
`
`address at 1111 E. Fillmore Street, Colorado Springs, CO 80907. Applicant admits that
`
`he is an individual with the aforementioned address.
`
`
`
`3.
`
`Opposer has, sinceatleastasearly asApril 25,1988, usedthemark
`
`ALEVE in connection with pharmaceutical preparations. Opposer is the owner of, among
`
`others, an incontestahle registration for the trademark ALEVE (United States
`
`Registration No.1,536,042, registered April 25, 1989) for the “anti-inflammatory,
`
`analgesic, and antipyretic pharmaceutical preparations” in class 5. Applicant is not
`
`aware of the date that ALEVE began use of this mark does not agree with or oppose
`
`this statement.
`
`4.
`
`There is no issue as to priority. Upon information and belief, Applicant
`
`has not used the mark ESTROLEVE on its goods prior to February 14, 2002, as
`
`evidenced by the Applicant’s alleged date of first use in the Application. The date of
`
`registration and use ofthe ALEVE mark is thus well before the alleged date offirst use
`
`and application for the Applicant’s ESTROLEVE mark and the Opposer’s ALEVE mark
`
`therefore has priority over the Applicant’s ESTROLEVE application. Applicant admits,
`
`on information and belief that he has not used the mark ESTROLEVE on its goods
`
`prior to February 14, 2002.
`
`5.
`
`Opposer has sold its goods under the mark ALEVE throughout the United
`
`States and has developed exceedingly valuable good will with respect to the mark
`
`ALEVE. Applicant respects the opinion of this statement but Applicant is of the
`
`belief that this statement is of the opinion of the Opposer and neither denies nor
`
`accepts this statement.
`
`6.
`
`By virtue of its efforts and the expenditure of considerable sums for the
`
`promotional and advertising activities and by virtue ofthe excellence of its goods,
`
`Opposer has gained for its mark ALEVE a most valuable reputation and has created, in
`
`the minds ofthe buying public, an exclusive association between ALEVE and its goods.
`
`Applicant is of the belief that this statement is of the opinion of the Opposer and
`
`neither denies nor accepts this statement.
`
`
`
`impression just by plain observation and reasoning, knowing that ALEVE is a
`
`pharmaceutical product and ESTROLEVE is an herbal remedy.
`
`8.
`
`Applicant seeks to register ESTROLEVE as a mark in connection with the
`
`goods that are substantially similar to the goods ofthe Opposer and such use so nearly
`
`resembles Opposer’s use as to be likely to cause confusion, to cause a mistake or to
`
`deceive with in the meaning of 15 U.S.C. §1052 (d). Applicant denies that
`
`is similar to the goods of the Opposer. ESTROLEVE is an herbal
`
`remedy is designed specifically for menopausal symptoms including but not limited
`
`to hot flashes, night sweats, vaginal dryness, and decreased libido. ALEVIE is a
`
`pharmaceutical product used for generalized pain relief.
`
`9.
`
`IfApplicant is permitted to use and register the ESTROLEVE mark for its
`
`goods as specified in the opposed application, confusion in trade resulting in damage and
`
`injury to Opposer would be caused and would result by reason ofthe fact that Applicant’s
`
`mark is confusingly similar to Opposer’s mark. Persons familiar with Opposer’s ALEVE
`
`mark would be likely to buy Applicant's ESTROLEVE goods as goods offered and sold
`
`by Opposer. Furthermore, any defect, objection, or fault found with Applicant’s goods
`
`marketed under its ESTROLEVE mark would likely reflect upon and seriously injure the
`
`
`
`
`
`facts: ESTROLEVE is an all natural herbal supplement for the symptoms of
`
`menopause. ALEVE is a pharmaceutical product and is a generalized analgesic.
`
`ESTROLEVE has an entirely difierent target market than the goods sold under the
`
`mark ALEVE. ESTROLEVE is sold in the natural supplement section of retail
`
`stores. ALEVE is sold with other over the counter (OTC) analgesics. ESTROLEVE
`
`is mainly sold in health food store where ALEVE is not sold. ESTROLEVE is not
`
`similar in spelling, and or sound to ALEVE.
`
`10.
`
`The mark ALEVE is distinctive and famous throughout the United States,
`
`and has become closely associated with the goods of Opposer. The ALEVE mark
`
`became famous prior to the filing ofApplicant’s current application for ESTROLEVE
`
`and prior to Applicant’s alleged commencement of use ofthe mark ESTROLEVE.
`
`Applicant believes that this is an opinion set forth by the opposer and does not
`
`accept or deny this statement.
`
`11.
`
`The trademark proposed for iegistration by Applicant, namely,
`
`ESTROLEVE, is likely to dilute and actually dilutes 0pposer’s Aleve mark and reduces
`
`the capacity ofthe famous ALEVE mark to identify the goods of Opposer. Applicant
`
`denies that the use of ESTROLEVE will dilute the 0pposer’s ALEVE mark, thus
`
`not reducing the capacity ofthe ALEVE markto identify the goods ofthe Opposer.
`
`The products associated with the mark ESTROLEVE are not in any way similar to
`
`the goods related to the 0pposer’s mark ALEVE as described in paragraph 9.
`
`12.
`
`IfApplicant is granted the registration herein opposed, such registration
`
`would be a source ofdamage and injury to Opposer. Applicant denies that if granted
`
`registration of the mark ESTROLEVE it would cause damage or injury to the
`
`Opposer due to the differences in the products, their intent to use for different
`
`symptoms, the types of retail stores they are sold, the aisles they are sold, the
`
`
`
`different spelling, different target market, and all natural versus over the counter
`
`(OTC) analgesic.
`
`In previous correspondence Ms. Larsen’s stated that she intended to contest and
`
`oppose any name and/or mark containing “EVE”. To further afiirm Ms. La1sen’s
`
`comments‘, her actions ofopposing our other marks PROLEVE, RESPREVE, and
`
`MENSTREVE in addition to ESTROLEVE, confirm her intentions of opposing any
`
`marks with “EVE” in them.
`
`CONCLUSIO§
`
`For the foregoing reasons, Applicant respectfully requests that the Trademark
`
`Trial and Appeal Board grant the request to uphold the answer to the opposition to the
`
`mark ESTROLEVE, and let this response serve as an addendmn to the first response to
`
`the opposition #91 172882.
`
`I believe that this opposition is frivolous and an attempt to monopolize the
`
`tmregisuahle word “relieve”. A large company with deep pockets should not be the only
`
`company allowed the use of a word that covers such a broad spectrum. The trademark act
`
`was developed specifically to avoid these types of situations and allow any company the
`
`chance to prosper.
`
`The applicant prays that the trademark ESTROLEVE will be issued since it does
`
`not have any resemblance or target market as the mark ALEVE. And also prays that the
`
`opposition by Bayer Consumer Care LLC will be dismissed.
`
`
`5.1'‘éeorge K. Zoorob
`Applicant
`
`
`
`Dated November 7, 2006
`
`
`
`CEREECATE OF SERVICE
`
`I certify that a copy ofthe foregoing APPLICANT’S RESPONSE TO THE
`OPPOSITION #91 172882 was sent by First Class Mail on November 7, 2006 to Chelsea
`E. Larson and Bayer Consumer Care, LLC at the following addresses:
`
`Chelseaa E. Larsen
`Heller Ehnnan LLP
`
`333 Bush Street
`
`San Francisco, CA 94104
`
`Bayer Consumer Care, LLC
`36 Columbia Rd.
`
`Morristown, NJ 07962
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