IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of the Application Serial No. 78/784,312
`Published in the Oflicial Gazette on August 22, 2006
`Trademark: MENSTREVE
`
`T T A B
`
`Opposition No. 91 173028
`
`Attn: George Pologeorgis
`
`Bayer Consumer Care LLC,
`
`
`
`
`
`Opposer
`
`V.
`
`APPLICANT’S ADDENDUM TO
`ANSWER OF OPPOSTION
`
`George K. Zoorob,
`
`Applicant
`
`ADDENDUM TO THE RESPONSE TO OPPOSITION # 91173028
`
`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
`Larsen has recognized that I am acting Pro Se, and I am not an attorney or being
`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
`
`MENSTREVE 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 MENSTREVE.
`
`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.
`
` 11-08-2006
`
`US. Patent &TMOfc/TM Mail Rcpt Dr. #22
`
`
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of the Application Serial No. 78/784,312
`Published in the Oflicial Gazette on August 22, 2006
`Trademark: MENSTREVE
`
`T T A B
`
`Opposition No. 91 173028
`
`Attn: George Pologeorgis
`
`Bayer Consumer Care LLC,
`
`
`
`
`
`Opposer
`
`V.
`
`APPLICANT’S ADDENDUM TO
`ANSWER OF OPPOSTION
`
`George K. Zoorob,
`
`Applicant
`
`ADDENDUM TO THE RESPONSE TO OPPOSITION # 91173028
`
`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
`Larsen has recognized that I am acting Pro Se, and I am not an attorney or being
`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
`
`MENSTREVE 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 MENSTREVE.
`
`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.
`
` 11-08-2006
`
`US. Patent &TMOfc/TM Mail Rcpt Dr. #22
`
`
`
`3.
`
`Opposer has, since at least as early as April 25, 1988, used the mark
`
`ALEVE in connection with pharmaceutical preparations. Opposer is the owner of, among
`
`others, an incontestable 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 MENSTREVE on its goods prior to March 3, 2005, as evidenced
`
`by the Applicant’s alleged date of first use in the Application. The date of registration
`
`and use of the ALEVE mark is thus well before the alleged date of first use and
`
`Applicant’s MENSTREVE mark and the Opposer’s ALEVE mark therefore has priority
`
`over the Applicant’s MENSTREVE application. Applicant admits, on information and
`
`belief that he has not used the mark MENSTREVE on its goods prior to March 3,
`
`2005.
`
`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 of the excellence of its goods,
`
`Opposer has gained for its mark ALEVE a most valuable reputation and has created, in
`
`the minds of the 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.
`
`
`
`7.
`
`The trademark proposed for registration by Applicant, namely
`
`MENSTREVE, is likely to be confused with the Opposer’s mark, ALEVE, because the
`
`marks are similar in appearance, sound and overall commercial impression. Applicant
`
`denies that MENSTREVE is likely to be confused with the Opposer’s mark,
`
`ALEVE. The marks are not similar in appearance, sound and overall commercial
`
`impression just by plain observation and reasoning, knowing that ALEVE is a
`
`pharmaceutical product and MENSTREVE is an herbal remedy.
`
`8.
`
`Applicant seeks to register MENSTREVE as a mark in connection with
`
`the goods that are substantially similar to the goods of the 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
`
`MENSTREVE is similar to the goods of the Opposer. MENSTREVE is an herbal
`
`remedy is designed specifically for menstrual symptoms including but not limited to
`
`bloating, cramping, nausea and mood swings. ALEVE is a pharmaceutical product
`
`used for generalized pain relief.
`
`9.
`
`If Applicant is permitted to use and register the MENSTREVE mark for
`
`its goods as specified in the opposed application, COIlfl1Si0Il in trade resulting in damage
`
`and injury to Opposer would be caused and would result by reason of the fact that
`
`Applicant’s mark is confiisingly similar to Opposer’s mark. Persons familiar with
`
`Opposer’s ALEVE mark would be likely to buy Applicant’s MENSTREVE goods as
`
`goods offered and sold by Opposer. Furthermore, any defect, objection, or fault found
`
`with Applicant’s goods marketed under its MENSTREVE mark would likely reflect upon
`
`and seriously injure the reputation that Opposer has established for its goods offered
`
`under its ALEVE mark. Applicant denies that if permitted to use the mark
`
`MENSTREVE for its goods that their will be confusion in trade, thus it would not
`
`cause damage or injury to Opposer. Applicant denies the mark MENSTREVE is
`
`
`
`confusingly similar due to the facts: MENSTREVE is an all natural herbal
`
`supplement for the symptoms of menstruation. ALEVE is a pharmaceutical product
`
`and is a generalized analgesic. MENSTREVE has an entirely different target
`
`market than the goods sold under the mark ALEVE. MENSTREVE is sold in the
`
`natural supplement section of retail stores. ALEVE is sold with other over the
`
`counter (OTC) analgesics. MENSTREVE is mainly sold in health food store where
`
`ALEVE is not sold. MENSTREVE 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 of Applicant’s current application for MENSTREVE
`
`and prior to Applicant’s alleged commencement of use of the mark MENSTREVE.
`
`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 registration by Applicant, namely,
`
`MENSTREVE, is likely to dilute and actually dilutes Opposer’s Aleve mark and reduces
`
`the capacity of the famous ALEVE mark to identify the goods of Opposer. Applicant
`
`denies that the use of MENSTREVE will dilute the Opposer’s ALEVE mark, thus
`
`not reducing the capacity of the ALEVE mark to identify the goods of the Opposer.
`
`The products associated with the mark MENSTREVE are not in any way similar to
`
`the goods related to the Opposer’s mark ALEVE as described in paragraph 9.
`
`12.
`
`If Applicant is granted the registration herein opposed, such registration
`
`would be a source of damage and injury to Opposer. Applicant denies that if granted
`
`registration of the mark MENSTREVE 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 affirm Ms. Larsen’s
`
`comments‘, her actions of opposing our other marks PROLEVE, RESPREVE, and
`
`ESTROLEVE in addition to MENSTREVE, confirm her intentions of opposing any
`
`marks with “EVE” in them.
`
`CONCLUSION
`
`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 MENSTREVE, and let this response serve as an addendum to the first response to
`
`the opposition #91 173028.
`
`I believe that this opposition is frivolous and an attempt to monopolize the
`
`unregistrable 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 MENSTREVE 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.
`
`2
`
`Res egfly submitted,
`
` I 64/‘$.________,____....,.._,_..-..-.,,, _.
`
`// Geo e
`
`.Zoorob
`
`Dated November 7, 2006
`
`‘ Ms. Larsen is also opposing DERMALLEVE by Calgenex, which is a topical cream, a completely
`different descriptor than the mark ALEVE. The applicant has no afiiliation with Calgenex.
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing APPLICANT’S RESPONSE TO THE
`OPPOSITION #91173028 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 Ehrman LLP
`
`333 Bush Street
`
`San Francisco, CA 94104
`
`Bayer Consumer Care, LLC
`36 Columbia Rd.
`
`Morristown, NJ 07962
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter ofthe Applicafion Serial No. 78/784,312
`Published in the Oflicial Gazette on August 22, 2006
`Trademark: MENSTREVE
`
`Opposition No. 91 173028
`
`Attn: George Pologeorgis
`
`Refer Consumer
`
`with
`
`Opposer
`
`v.
`
`George K. Zoorob,
`
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`
`V.,.—.,
`
`,~-——..«.;.,~.
`
`Applicant
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`...,....~,v.—._.. _ ......... N_\~_.-.....,....-.,..».,..~-,.e. >.IRfl"."f§ .,~ ..-..._......u.«».-..A.-.
`
`Dear Mr. Pologeorgis,
`
`I have enclosed a copy ofthe proof of service ofthe answer on plainfifl; as required by
`Trademark Rule 2.119 (a).
`
`Sincerel
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that a copy ofthe foregoing APPLICAN'I"S RESPONSE TO THE
`OPPOSITION #91173028 was sent by First Class Mail on October 15’, 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 Cate, LLC
`36 Columbia Rd.
`
`Motristown, NJ 07962
`
`
`U.S. Postal Servlcem
`
`CERTIFIED MAIL7.-.-. RECEIPT
`(Domestic Mail Only; No Insurance Coverage Provided)
`For delivery
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`
`
`
`
`
`
`
`
`
`?EIl'.lI:IJLDDUIJEII-I15751.519
`
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`
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`
`
`
`See Reverse for Instructions
`
`PS Form 3360. June 2002
`
` U.S. Postal Servicem
`
`CERTIFIED MAILTl.1 RECEIPT
`
`
`
`(Domestic Mail Only; No Insurance Coverage Provided)
`For delivery information visit our website at www.usps.com-5
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`PS Form 3800. June 2002
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