Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA295083
`ESTTA Tracking number:
`07/13/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91172885
`Plaintiff
`Ayush Herbs, Inc.
`Rakesh M. Amin, Ryan M. Kaiser
`Amin Talati, LLC
`444 N. Orleans, Suite 400
`Chicago, IL 60610
`UNITED STATES
`Ryan@amintalati.com
`Reply in Support of Motion
`Ryan M. Kaiser
`ryan@amintalati.com
`/Ryan M. Kaiser/
`07/13/2009
`Opposer's REPLY.pdf ( 11 pages )(75957 bytes )
`Reply Exhibit 1 (part 1 of 5).pdf ( 7 pages )(2910786 bytes )
`Reply Exhibit 1 (part 2 of 5).pdf ( 6 pages )(2940717 bytes )
`Reply Exhibit 1 (part 3 of 5).pdf ( 5 pages )(2329351 bytes )
`Reply Exhibit 1 (part 4 of 5).pdf ( 5 pages )(1973551 bytes )
`Reply Exhibit 1 (part 5 of 5).pdf ( 5 pages )(2001207 bytes )
`Reply Exhibit 2.pdf ( 10 pages )(1557889 bytes )
`Reply Exhibit 3.pdf ( 4 pages )(508411 bytes )
`Reply Exhibit 4.pdf ( 3 pages )(635613 bytes )
`Reply Exhibit 5.pdf ( 3 pages )(709921 bytes )
`Reply Exhibit 6.pdf ( 5 pages )(988392 bytes )
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`____________________________________
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`AYUSH HERBS, INC.,
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`Opposer,
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`v.
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`HINDUSTAN LEVER LTD. CO.,
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`Applicant,
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`____________________________________ )
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`Opposition No. 91,172,885
`Application Serial No. 76/602,470
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`OPPOSER’S REPLY IN SUPPORT OF SUMMARY JUDGMENT
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`I.
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`INTRODUCTION
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`In a last-gasp effort to avoid summary judgment, Applicant attempts to manufacture an issue of
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`fact by bringing untimely and improper attacks on the validity of Opposer’s registration. However, even
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`if the allegations raised in one or both Applicant’s counterclaims are presumed for the sake of the present
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`motion to be true,1 they leave Opposer’s common law priority use unaffected. Based on registration or
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`common law, the record confirms that there are no reasonable factual issues concerning priority and
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`likelihood of confusion, and summary judgment in favor of Opposer is appropriate.
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`II.
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`ARGUMENT
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`(1)
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`There is No Genuine Issue as to Opposer’s Priority
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`
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`Opposer has plead and proven undisputed priority. Applicant’s earliest possible priority date is
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`July 12, 2004. See, Application, Serial No. 76/602,407. Opposer first used its AYUSH HERBS mark on
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`cosmetics and dietary supplements nearly twenty (20) years ago, and has done so continuously since then.
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`These facts are undisputed. Instead, Applicant has attempted to sandbag Opposer with two untimely and
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`previously undisclosed counterclaims in an attempt to defeat Opposer’s priority by canceling Opposer’s
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`federal registration. However, a federal registration is not necessary to successfully oppose Applicant’s
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`application. Applicant’s effort misses the mark for several reasons.
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`A.
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`Opposer’s Summary Judgment Priority Is Not Based Upon Registration Alone
`and its Common Law Rights Are Undisputed
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`1 Opposer denies that Applicant’s counterclaims are proper, and also denies the conclusory and
`contradicted statements contained in Applicant’s Response and supporting Declarations. Opposer makes
`no admissions concerning any of Applicant’s statement by this Reply, unless expressly noted.
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`
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`1
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`

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`Despite Applicant’s assertions, Opposer has not merely relied on its registration and has
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`
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`sufficiently alleged and proven common law priority. Opposer alleged common law use in its Notice of
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`Opposition making it a proper basis for summary judgment. See, Opposer’s Notice of Opposition, at ¶¶ 2,
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`5, 6 and 17. In addition, Opposer’s Motion for Summary Judgment repeatedly asserts common law use of
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`its AYUSH HERBS mark. Opposer’s Brief in Support of Motion for Summary Judgment (“MSJ”), at pp.
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`3, 4 and 8 (stating “Section 2(d) priority is not an issue because Opposer’s first use, application and
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`registration dates” all pre-date Applicant). In connection with its Motion for Summary Judgment,
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`Opposer submitted dated evidence of common law use which pre-dates Applicant’s priority date. MSJ at
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`Ex. 2 (three dated advertisements pre-dating Applicant’s priority date, appearing magazines of nation-
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`wide circulation).
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`The Federal Circuit has determined that proof of prior use, even if only in intrastate commerce, is
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`sufficient to preclude registration. See National Cable Television Association v. American Cinema
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`Editors, Inc., 19 USPQ2d 1424, 1429 n.4 (Fed. Cir. 1991); Corporate Document Services, Inc. v. I.C.E.D.
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`Management, Inc., 48 USPQ2d 1477 (TTAB 1998) (stating that "[i]t is well established that rights in and
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`to a trademark are created by use of the mark in either intrastate or interstate commerce."). The burden of
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`proving common law rights sufficient to establish priority is not onerous. The Federal Circuit has
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`consistently held that even non-technical use (e.g. “advertising, use as a trade name, or any other manner
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`of public use”), insufficient to obtain registration, is sufficient to establish priority rights as against
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`subsequent users or registrants of a similar mark. See, Jim Dandy Co. v. Martha White Foods, Inc., 173
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`USPQ 673 (CCPA 1972); National Cable Television Ass'n., Inc. v. American Cinema Editors, Inc., 19
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`USPQ2d 1424 (Fed. Cir. 1991).
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`Opposer in this case has alleged and proven use sufficient to show priority. Opposer submitted
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`dated advertisements showing the AYUSH HERBS mark used in promotion of dietary supplements and
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`cosmetics. MSJ, at Ex. 2 (showing advertisements in several nationwide publications in 2002 and 2003);
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`Opposer’s Reply Brief, Selected Advertisements (attached as Exhibit 1)(showing AYUSH HERBS
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`advertisements published in nation-wide magazines dating from 2003-2007); Id. at Opposer’s Web Site
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`2
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`(attached as Exhibit 2)(showing current use of the AYUSH HERBS mark on supplements and cosmetics);
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`Id. at Archive.org Printout (attached as Exhibit 3)(showing that www.ayush.com has been used since
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`1998); and Id. at Opposer’s Washington State Registration, (attached as Exhibit 4)(showing Opposer’s
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`Washington state registration for the AYUSH mark). 2
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`Applicant has not provided testimony or any other evidence contravening the existence or validity
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`of Opposer's prior use. Even if its registration is cancelled, Opposer’s common law priority date is simply
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`not reasonably in dispute.
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`B.
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`Applicant’s Attack on Opposer’s Registration Does Not Create
`A Disputed Issue of Material Fact
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`
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`Rather than attack Opposer’s common law priority, Applicant chose to attack Opposer’s
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`registration. Applicant’s attempted amendment adds counterclaims to cancel Opposer’s registration on
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`the basis of fraud for non-use on “candy” and “skin lotion”. Applicant relies on the decision in Medinol
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`Ltd. v. Neuro Vasx Inc., 67 USPQ2d 1205 (TTAB 2003) to invalidate Opposer’s entire registration based
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`on an alleged lack of sales of candy and lotion.3 Applicant also seeks to cancel Opposer’s registration
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`based on an alleged violation the Food, Drug and Cosmetic Act by making improper claims concerning
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`four (4) of Opposer’s many products.
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`
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`While Opposer disputes the timeliness, veracity and legal merit of the new counterclaims, for
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`purposes of its Summary Judgment Motion, Opposer will concede the contentions to be treated as
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`established. Even treated as true, Applicants allegations do not foreclose summary judgment in
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`Opposer’s favor. In the context of a motion for summary judgment, a fact is material only if it “may
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`affect the decision.” See, Institut National Des Appellations d’Origine v. Brown-Forman Corp., 47
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`USPQ2d 1875, 1879 (TTAB 1998). A dispute over a fact that would not alter the Board’s decision on the
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`2 While Exhibits 1-4 to this brief were not submitted in connection with Opposer’s original brief, Opposer
`has identified and produced each of the documents to Applicant in discovery. The advertisements are
`cumulative of the advertising material originally submitted with Opposer’s Motion and Brief. The
`website is available to Applicant online, and has been repeatedly cited by Applicant in its Response.
`Likewise, www.archive.org is available to Applicant online. Thus, this evidence will not result in unfair
`surprise or prejudice to Applicant. It is being submitted in response to the new matters which were raised
`for the first time in Applicant’s Response (namely, the Counterclaim attacks on Opposer’s registration
`and common law rights in the AYUSH HERBS mark).
`3 It should be noted, however, that if the Board denies either of Applicant’s two Motions to Amend, Opposer’s
`registration will remain in tact.
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`
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`3
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`

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`legal issue will not prevent entry of summary judgment. See e.g., Kellogg Co. v. Pack’Em Enterprises,
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`Inc., 14 USPQ2d 1545 (TTAB 1990), aff’d, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991).
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`(i)
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`Applicant’s Fraud Claim Will Not Affect Opposer’s Common Law Rights
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`Here, conceding Applicant’s first counterclaim for fraud as it is set forth in Applicant’s
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`counterclaims (i.e. non-use on “candy” and/or “lotion”) will result only in cancellation of Opposer’s
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`registration (possibly only two classes). It will not affect Opposer’s common law rights, nor would it
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`foreclose Opposer from re-filing and re-registering the same mark with a corrected identification of
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`goods. See, McCarthy on Trademarks, Vol. 6, § 31:60 (Thompson/West 2007)(if a defendant succeeds in
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`canceling plaintiff’s registration, plaintiff’s common law rights continue unabated); Standard Knitting,
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`Ltd. v. Toyota Jidosha Kabushiki Kaisha, 2006 TTAB LEXIS 9 (TTAB 2006). Applicant has not
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`challenged Opposer’s common law priority, and has not offered any evidence to rebut the dated Exhibits
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`attached to Opposer’s motion. Opposer’s priority is unaffected.
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`Applicant’s “Unlawful Use” Claim Will Not Affect Opposer’s Common Law Rights
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`(ii)
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`Applicant’s second and final counterclaim for unlawful use is similarly unavailing. Applicant’s
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`
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`Second Motion for Leave to Amend cites to the 9th Circuit’s decision in CreAgri Inc. v. USANA Health
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`Sciences Inc., 81 USPQ2d 1592 (9th Cir. 2007), presumably to argue that alleged improper claims on
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`Applicant’s website in connection to several of the Applicant’s products under the mark warrant the
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`cancellation of Applicant’s registrations and obliteration of its common law rights.
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`First, Applicant’s counterclaim does not allege misconduct that rises to the level that warrants
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`cancellation of Opposer’s registration. A de minimis violation of federal labeling laws will not result the
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`draconian result of invalidation. General Mills, Inc. v. Health Valley Foods, 24 USPQ2d 1270, 1274-75
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`(TTAB 1992). Applicant must allege and prove that the noncompliance was “of such gravity and
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`significance that the usage must be considered unlawful -- so tainted that, as a matter of law, it could
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`create no trademark rights -- warranting cancellation of the registration of the mark involved”. Id.
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`Applicant’s own authority, Santinine Societa v. P.A.B. Produits, 209 USPQ 958 (TTAB 1981) points out
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`that “while some unlawful uses are of such a nature (e.g. use of a mark in connection with an illegal drug)
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`4
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`

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`that it would be unthinkable to register a mark, other uses should not result in refusal of registration (or
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`cancellation of registration) because of some purely collateral defect.” In the present case, a violation in
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`connection with the online promotion of four (4) of many products is collateral and de minimis.
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`Second, CreAgri addresses the situation where there has been no lawful use of a product
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`trademark whatsoever due to pervasive mislabeling, and not where some improper labeling on a select
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`few product occurs long after a house mark has been lawfully used on numerous products. Applicant
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`misreads the holding in CreAgri. In CreAgri, the mark at issue was a product name used in connection
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`with a single product. The violation revolved around a literally false claim knowingly placed on the
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`product label. The Ninth Circuit sustained the unlawful use defense based on mislabeling where it was
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`shown that there was not a single instance of compliance prior to a certain date. The non-compliance was
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`significant, in that there was not even one instance of prior lawful use upon which to base priority.
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`Without any lawful use in commerce, the registrant could not claim to be the first to use the mark in
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`lawful commerce.
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`Such is not the case here. Oppose has used AYUSH HERBS as a house mark on a large variety
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`of goods, including supplements, cosmetic and herbal products for nearly twenty (20) years.4 Applicant’s
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`counterclaim makes allegations as to only four (4) specific products. The claims are neither printed on,
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`nor alleged to be printed on, any product label. They appear only on Opposer’s web site as collateral
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`material. There has also been absolutely no allegation that Opposer has failed to engage in any lawful on
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`any product use prior to July of 2004, as was the case in CreAgri.
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`
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`Under Applicant’s supposed interpretation of CreAgri, every lawfully established trademark in
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`existence is imperiled the moment a wrongful claim is made on a product website, regardless of how
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`famous the mark is, the number of other products upon which it is used, or the resulting confusion that
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`would result when an intent-to-use applicant rushed in to capture the mark for themselves. For example,
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`under Applicant’s interpretation, were AMWAY to violate a labeling regulation on just one of its many
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`products, all rights in the AMWAY mark would instantly be lost. Such an expansion of the CreAgri
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`4 Incidentally, this undisputed fact strongly favors Opposer with respect to the 9th DuPont factor (i.e. the
`variety of goods on which the mark is used) cited in Applicant’s Response at page 8.
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`5
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`ruling is untenable, and none of Applicant’s remaining authority supports this extreme position. Put
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`simply, limited unlawful use of a 20-year-old house mark on a select small number of products on a
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`dynamic website will not invalidate all rights in that house mark (which has been and continues to be
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`lawfully used on many products).
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`(2)
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`There Are No Genuine Factual Issues On The Likelihood of Confusion Factors
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`Applicant’s Response is not supported by facts or evidence, but merely expresses disagreement
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`
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`with Opposer. This is insufficient to overcome summary judgment. Octocom Systems Inc. v. Houston
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`Computer Services Inc., 918 F.2d 937 (Fed. Cir. 1990). A verified statement of the non-moving party that
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`is unsupported by documentary evidence may be given consideration only if the statements contained
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`therein are clear and convincing in character and uncontradicted. TBMP § 528.05(b). Applicant raises
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`only legal questions, which are well-suited for determination as a matter of law by the Board.
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`A. The Marks AYUSH and AYUSH HERBS are Effectively Identical
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`The marks at issue are AYUSH HERBS and AYUSH. Both are word-marks. Applicant has admitted
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`that “AYUSH” is a “strong” trademark, as well as its belief that the consuming public would perceive no
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`meaning in the term. MSJ, Ex. 37 at Req. No. 30 (“Admit that Applicant’s [AYUSH] Mark is a strong
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`trademark” – "admitted”); Nos. 38 and 39 (“admitted” that “Applicant believes that the consuming public
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`would perceive no meaning in the word AYUSH” and “admitted” that “Applicant believes that the
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`consuming public would view the word AYUSH as an invented term”).5 Both marks share the admittedly
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`“strong” AYUSH element. However, Applicant now argues, with no evidence, that the disclaimed and
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`descriptive term “Herbs” should be given more weight (not less), and that it creates an entirely distinct
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`commercial impression.6 Regardless, comparison of the two word marks requires no further evidence,
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`and certainly does not require a trial.
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`5 Applicant did qualify its responses by excluding “Indian” consumers. However, Applicant’s evidence
`shows “Indian” consumers make up less than 1% of the consuming population in the U.S.
`6 Tellingly, Applicant supports its purely legal argument with non-precedential TTAB decisions. See,
`Applicant’s Response, at Attachments 1-3. This is clearly improper. TBMP § 101.03 (and cases cited).
`Indeed, if Opposer had chosen to cite non-precedential decisions, it surely would have cited to In re
`BioGenesis USA, Inc., S.N. 75/513,763(TTAB Oct. 19, 2000) (attached as Exhibit 6), which found that
`services identified as “health spas featuring wellness services . . .” were closely related to “nutritional
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`6
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`B. The Goods and Services at Issue are Highly Related
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`Opposer has submitted uncontested evidence showing the relatedness of the relevant goods and
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`services. Opposer’s internet evidence shows Opposer’s goods being promoted, used and sold within the
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`very health spas and health clinics that Applicant intends to open. The removal of ¶ 12 Dr. Sodhi’s
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`declaration has no consequence because Opposer had not relied “solely” on that statement as proof of the
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`relatedness of the goods and services.7
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`
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`Opposer’s failure to use the AYUSH HERBS mark in connection with its Ayurvedic Clinic is
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`similarly of no consequence. Applicant relies on Physicians Formula Cosmetics, Inc. v. West Cabot
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`Cosmetics, Inc., 8 USPQ2d 1136, 1138, n.1 (2d Cir. 1988).8 In that case, the Court noted that a refusal to
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`apply the “expansion of trade doctrine” must be based on the equities of each particular case, and is
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`proper only where the senior user’s delay was coupled with extensive promotion by the junior user. Here,
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`Applicant has made no effort to market its services. Thus, the equities favor Opposer.
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`
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`Relying on Cognis Corp. v. DBC, LLC, 73 USPQ2d 1766 (TTAB 2004), Applicant next argues
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`that the very existence of its counterclaims preclude summary judgment. Response at p. 13. In Cognis,
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`the applicant had counterclaimed to partially cancel opposer’s registration by specifically limiting
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`opposer’s goods. Id. The counterclaim specifically alleged that the proposed restriction would avoid a
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`likelihood of confusion. That is not the case here. First, Applicant’s proposed counterclaim does not
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`allege that cancellation of Opposer’s registration will avoid a likelihood of confusion. Second, even if
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`Applicant wins its counterclaims, there will be no affect on Opposer’s common law rights.9
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`supplements and vitamins” and that both goods and services used the same channels of commerce and
`were promoted to the same consumers.
`7 In fact, Opposer’s Motion never cited to that particular paragraph of the Declaration at all. It was
`superfluous and unnecessary in light of Applicant’s admissions and Opposer’s objective documentary
`evidence.
`8 Physician’s Formula, a Second Circuit decision on appeal from a District Court, is yet another cite to a
`decision that is simply not binding on the TTAB.
`9 To adopt Applicant’s position, there would never be summary judgment. All a non-moving party would
`need to do is file a Motion for Leave to Amend simultaneously with its Response brief, asserting a
`counterclaim upon information and belief. That is exactly what Applicant has done here.
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`7
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`Applicant’s challenge of Opposer’s third-party registrations is misleading. Opposer submitted
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`twenty (20) registrations.10 Applicant has challenged only a handful of those registrations. As its leading
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`case on this point, Applicant cites to the non-precedential decision in 7-Eleven, Inc. v. HEB Grocery
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`Company, 83 USPQ2d 1257 (TTAB 2007). In 7-Eleven, the Board gave limited probative value to third
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`party registrations where “all but three of the third party uses and registrations presented” were “store
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`brands”. Id. In our case, roughly fifteen (15) of Opposer’s registrations have gone entirely unchallenged
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`because they are limited to solely to the relevant goods and services.
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`
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`Applicant’s never disputes that it in fact promotes the relevant goods and services together, to the
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`same consumers, under the same mark. Instead, it attacks Opposer’s evidence on the basis that
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`Applicant’s actual use of the AYUSH mark in India is irrelevant. To the contrary, this particular evidence
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`is most relevant and quite persuasive. The TMEP confirms that, as long as it is written in English,
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`material originating from a foreign website may be relevant and may have probative value. See, Internet
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`Evidence, TMEP § 710.01(b).
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`
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`Applicant’s attempted challenge of Opposer’s internet evidence is similarly misguided. The
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`evidence shows both Opposer’s goods and Applicant’s services being promoted at the same internet site,
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`to the same consumers, by the same companies. Opposer’s evidence shows Ayurvedic spas and clinics
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`(like Applicant’s) selling, promoting and using cosmetic and supplement products (like Opposer’s). MSJ,
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`Exs. 32-36 and 38.
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`Finally, Applicant offers no evidence to support its conclusion that Opposer’s goods are not
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`related to Applicant’s services. Given the opportunity, Applicant’s Vice President, Vipul Chawla, cannot
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`even utter the words that the goods and services at issue are unrelated. See generally, Chawla
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`Declaration. In fact, Mr. Chawla’s declaration supports Opposer’s position. Chawla Declaration, at ¶ 12
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`(“HUL consumers who are familiar with ayurveda use ayurvedic products or seek ayurvedic
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`services)(emphasis added); ¶ 14 (“HUL . . . will not be selling any third party’s traditional ayurvedic
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`10 Indeed, there are hundreds if not thousands of additional similar registrations and applications. In the
`interest of judicial economy, Opposer submitted only a representative sample.
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`8
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`products at [its] centres.” This carefully worded qualifying language implies that Applicant will indeed
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`sell “traditional ayurvedic products” at its centres).
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`C. Trade Channels and Consumers are Unrestricted
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`As the Board has pointed out more times than one can count, the likelihood of confusion
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`determination is to be made based upon the goods as identified in the involved registration,
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`regardless of what the record may reveal as to the actual nature of an applicant's goods, channels
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`of trade or the class of purchasers to which the sales of goods are directed.11 Yet Applicant
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`continuously attempts to limit its channels of commerce and consumers. Response at pp. 17-18.
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`Applicant argues that its consumers are “sophisticated” and implies that its services are high-end
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`and expensive. Chawla Declaration, at ¶¶ 12 and 14. However, Applicant submits no evidence
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`regarding the cost of its services. Id. In fact, in promoting his allegedly expensive and “high-
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`end” wares, Mr. Chawla has been quoted as saying that that Applicant’s AYUSH products and
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`services are for “everyday” use “offer[ing] high functionality, but its pricing is affordable”. See,
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`Hll launches “Lever Ayush” Ayurvedic Health & Beauty Care Products, available at
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`http://www.reachouthyderabad.com/business/biznews/hll.htm (Aug. 2002)(attached as Exhibit 5).
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`
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`Mr. Chawla also testifies that the majority of Applicant’s customers are Indian. Not surprising,
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`considering Applicant’s clinics are currently located in India. However, Applicant’s classification of the
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`American Indian population as “significant” contradicts its own evidence, which shows that less than 1%
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`of the U.S. population is Indian. Aplert Declaration, at Ex. C (U.S. census report showing that Asian
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`Indians represent less than 1% of the total U.S. population).
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` D. Applicant Has Readily Admitted the Strength of Opposer’s Mark
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`Applicant has already admitted the trademark strength of the term “AYUSH.” MSJ, Ex. 37 at RFA.
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`No. 30 (“Admit that Applicant’s [AYUSH] Mark is a strong trademark – admitted”); Nos. 38 and 39
`
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`11 Welsh, John L., Top Ten Losing TTAB Arguments, AIPLA Advanced Copyright/Trademark Practice Seminar
`(Boston, June 1, 2001) (identifying limitation of goods/services as the #1 most “popular” losing TTAB argument).
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`
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`9
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`(“admitted” that “Applicant believes that the consuming public would perceive no meaning in the word
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`AYUSH” and “admitted” that “Applicant believes that the consuming public would view the word
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`AYUSH as an invented term”). Applicant has also admitted that the consuming public would perceive no
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`meaning in the term AYUSH. MSJ, Ex. 37 at RFA. Nos. 38 and 39 (“admitted” that “Applicant believes
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`that the consuming public would perceive no meaning in the word AYUSH” and “admitted” that
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`“Applicant believes that the consuming public would view the word AYUSH as an invented term”).
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`Applicant cannot argue that AYUSH is a weak trademark. There is no evidence that any portion of the
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`consuming public associates any meaning to the term AYUSH.12
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`E. One Mark Does Not A Crowded Field Make
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`In Old Tyme, 22 USPQ 1542, cited by Applicant, there were 217 similar marks and registrations.
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`Here, Applicant has submitted two: AYUSHMAN, which is no longer registered or in use in the U.S.;
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`and AYUSHAKTI. There is no evidence that any consumers are aware of the AYUSHAKTI mark. 13
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`Finally, Applicant already admitted that AYUSHAKTI and AYUSH were dissimilar. MSJ at Ex. 26.
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`III.
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`CONCLUSION
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`
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`Despite extensive argument, Applicant has offered no credible supporting evidence. There are no
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`genuine issues of material fact for trial. Even conceding Applicant’s counterclaims, Opposer is still
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`entitled to judgment in its favor based on unabated common law rights. Any issues raised by Applicant
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`can be resolved by the Board, thereby obviating the need for a costly trial.
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`Dated: July 13, 2009
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`AMIN TALATI, LLC
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`_/s/ Ryan M. Kaiser_______________
`Rakesh M. Amin
`Ryan M. Kaiser
`444 N. Orleans St., Suite 400
`Chicago, IL 60654
`Attorneys for Opposer
`ryan@amintalati.com
`
`
`12 Those who do know the meaning of the word would associate the same meaning to Opposer and
`Applicant. Further evidence of the identity in commercial impressions of the marks.
`13 In fact, Applicant’s investigator has shown how difficult it is for anyone to even purchase
`AYUSHAKTI products. Elfeld Declaration, at ¶ 3 (stating that it required “a series of telephone calls and
`emails” before she was able to place a “telephone order”).
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`10
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`

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`PROOF OF SERVICE
`I am over the age of 18 and not a party to the within action; my business address is Amin
`
`Hallihan, LLC, 444 North Orleans Street, Suite 400, Chicago, IL 60654. On July 13, 2009, a copy of the
`attached REPLY IN SUPPORT OF SUMMARY JUDGMENT was served on all interested parties in
`this action via email and U.S. Mail, FedEx or the equivalent, postage prepaid, at the addresses as follows:
`
`To:
`
`Robert Alpert
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`
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`Executed on July 13, 2009, at Chicago, Illinois. I declare under penalty of perjury that the above
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`is true and correct. I declare that I am employed in the office of Amin Talati, LLC at whose direction
`service was made.
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` /s/ Ryan M. Kaiser________
` Ryan M. Kaiser
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`CERTIFICATE OF TRANSMISSION
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`I hereby certify that this correspondence is being transmitted to the United States Patent and
`Trademark Office using the ESTTA system on July 13, 2009.
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`/s/ Ryan M. Kaiser__________
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`Ryan M. Kaiser
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`11
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`REPLY EXHIBIT 1
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`
`-t.‘
`results in an increase of the anti-
`inflarnmatory cytokine interleukin 10
`and a decrease in TNF-alpha in both
`plasma and monocyte supernatants.’°°
`Vitamin C helps preserve intracellular-
`reduced glutathione concentrations.“
`The antioxidant activity of riboflavin
`(vitamin B2} is derived principally from
`its role as a precursor of ilavin adenine
`dinucleotide (FAD) and the role of this
`cofactor in the production of reduced
`glutathione.“ Pantothenic acid has been
`shown to increase levels of cellular-
`reduced glutatbione.“ Low folate status
`is thought to be common among the
`elderly, and dietary folato improves age-
`related decreases
`in lymphocyte
`function.“ Cobalamin (vitamin B12)
`deficiency
`is
`accompanied
`by
`overproduction
`of TNF-alpha.‘°’
`Lipopolysaccharide-stimulated
`production of IL-6 is inhibited by
`naphthoquinones
`[vitamin
`K
`compounds).1°3 And magnesium-deficient
`rodents have been found with high
`elevations of the macrophage-derived
`cytokines IL-1, IL-6, and TNF-alpha. 1°‘
`
`Conclusion
`Taken prophylactically, prior to an
`H5N 1 influenza infection and throughout
`the duration of illness and recovery, the
`
`
`
`
`Influenza A Supplement
`
`> o
`
`f TNF-alpha and IL-1 by a human
`monocytic macrophage cell line.“
`Antioxidants
`(Collectively):
`Antioxidants collectively (vitamin A,
`vitamin E, vitamin C, NAG, glutathione,
`and alpha lipoic acid) have reduced serum
`levels of TNF-alpha and IL-6.97 Another
`study reported that antioxidants
`suppressed
`reactive
`oxygen
`intermediaries-stimulated production of
`the pro-inflammatory cytol-tine IL-6 in
`bronchial
`epithelial
`cells.“ An
`authoritative commentator (Peterhans)
`noted
`that
`antioxidants
`that
`downregulate
`pro-inflammatory
`cytokines “may be a useful complement
`to specific antiviral drugs in the therapy
`of viral diseases.“
`Vitamin A, Vitamin C, Riboflavin
`(Vitamin B2), Pantothenic Acid
`(Vitamin B5), Folic Acid, Cobalamin
`(Vitamin B12), Vitamin K1, and
`Magnesium: A larger complement of
`micronutrients may play a supporting
`role in the antagonism of H5N1 influenza
`pathogenesis. For example, research has
`shown that vitamin A supplementation
`in patients with low levels of the vitamin
`
`
`formula
`supplement
`nutritional
`described herein may redundantly
`antagonize the major pathogenic
`processes of H5N1 influenza by multiple
`therapeutic mechanisms, and thus
`increase the likelihood of survival
`without major complications, according
`to the preponderance of evidence
`presented here. Given also the multiple
`therapeutic mechanisms involved
`(antiviral, anticytokine, antioxidant) and
`the redundancy by which these
`mechanisms act {including by selenium-,
`NAC:'glutathione-_.
`resveratrol-,
`quercetin-, curcuI.nin—, and vitamin E-
`mediated mechanisms), the formula may
`be less likely to lead to H5N 1 resistance.
`The therapeutic value of the formula
`likely would be low if used as a treatment
`upon onset of an H5N1 infection, without
`prophylactic use prior to an H5N1
`infection. It may also present individuals,
`as well as government, public-health,
`health care, and corporate organizations,
`with
`an
`adjunctive means
`of
`preparedness for an H5N1 influenza
`pandemic. Given
`the
`plausible
`the I
`prophylactic
`properties
`of
`formulation, we urge that laboratory and
`animal experiments be conducted to gain
`more data with respect to the antiviral,
`anticytolcine, and antioxidant capabilities
`of the formulation and its ingredients
`with respect to the pathogenesis of HSN 1
`influenza. Finally, given the evident
`involvement of micronutrients in the
`virulence and replication of influenza
`type A viruses, and in the activation and
`production
`of
`pro-inflammatory
`cytokines, we
`additionally urge
`investigations into the rnicronutrient
`status of annuals and humans infected
`with H5N1
`influenza
`and
`the
`relationship of this status to the clinical
`course and outcome of the disease.
`
`Howard Friel is coauthor (with Richard
`Falk) of The Record ofthe Paper: How The
`New York Times Misreports US Foreign
`Policy (Verso, 2004), and is coauthor (with
`Falk) of IsracI—Po£est£ne on Record: How
`The New Kirk Times Misreporrs Conflict
`in the Middle East (Verso, 2007). He is
`researching and writing a book on
`emerging viruses. climate change, and
`globalization, from which much of this
`research emerged. Harvey L