Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA422377
`ESTTA Tracking number:
`07/29/2011
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`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91200833
`Defendant
`Theralogix, LLC
`PATRICK J. JENNINGS
`PILLSBURY WINTHROP SHAW PITTMAN, LLP
`2300 N ST NW
`WASHINGTON, DC 20037-1122
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`dctm@pillsburylaw.com
`Answer
`Patrick J. Jennings
`dctm@pillsburylaw.com
`/Pat Jennings/
`07/29/2011
`Isorel Answer.pdf ( 5 pages )(31950 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`Akryon,
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`Opposer,
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`Theralogix, LLC,
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`Applicant.
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`Opposition No. 91200833
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`Serial No. 85/166,422
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`ANSWER
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`Theralogix, LLC (“Applicant”), by and through its attorneys, hereby answers Akryon’s
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`(“Opposer”) Notice of Opposition. With respect to the preamble of the Notice of Opposition,
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`Applicant denies that Opposer is being or will be damaged by the registration of United States
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`Trademark Application Serial No. 85/166,422.
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`1.
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`Applicant is without information sufficient to admit or deny the allegations in
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`Paragraph 1 of the Notice of Opposition and, therefore, denies the same.
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`2.
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`Applicant is without information sufficient to admit or deny the allegations in
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`Paragraph 2 of the Notice of Opposition and, therefore, denies the same.
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`3.
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`Applicant admits that the United States Patent and Trademark Office’s records
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`show that Opposer owns United States Trademark Registration No. 3,995,586 and that the
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`registration covers: “Pharmaceutical products, namely, medicinal and nutriceutical preparations,
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`immuno-stimulants and antioxidants sold in the form of powder or of capsule, with a dietary and
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`energizing effect; dietary and energizing products for medical use, namely, food complements in
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`the nature of meal replacement powders and drinks; and medicinal nutritional supplements in
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`powder or capsule form that have dietary and energizing effect, namely, vegetable based food
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`supplements and functional foodstuffs containing fruits, vegetables, and plant extracts rich in
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`SOD to fight against the toxic waste of the oxygen and to improve and maintain the physical,
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`nutritional and dermatological condition of the consumers by the prevention and the slowing
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`down oxidizing damages caused by cutaneous and hormonal ageing, food imbalance, oxidizing
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`stress and chronic affections, in particular asthma, diabetes, metabolic syndrome,
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`neurodegenerative diseases; dietary and energizing products for medical in the nature of
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`nutritional supplements containing fatty acids, amino acids, carotenoids, food fibers, fruits and
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`vegetables, extracts of fruits and vegetables, tea, cocoa beans, vegetable seeds, vegetable roots,
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`bark of vegetables and flowers of vegetables for antioxidant, anti-inflammatory, immuno-
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`stimulants, and thinning and slimming purposes, all these products being for medical use and
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`sold under their conventional shape or in the form of pastilles, capsules and powder” in
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`International Class 5.
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`4.
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`Applicant is without information sufficient to admit or deny the allegations in
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`Paragraph 4 of the Notice of Opposition and, therefore, denies the same. Opposer’s registration
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`has not been received into evidence or made part of the record in this case because the Notice of
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`Opposition was not accompanied by an original or photocopy of the registration prepared and
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`issued by the United States Patent and Trademark Office showing both the current status of and
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`current title to the registration, or by a current printout of information from the electronic
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`database records of the United States Patent and Trademark Office showing the current status
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`and title of the registration.
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`5.
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`Applicant denies the allegations in Paragraph 5 of the Notice of Opposition.
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`Applicant filed its application on November 1, 2010; not on November 10, 2010.
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`6.
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`Applicant admits the allegations in Paragraph 6 of the Notice of Opposition.
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`Applicant denies the allegations in Paragraph 7 of the Notice of Opposition.
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`Applicant’s application covers nutritional and dietary supplements and not “complements.”
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`8.
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`Applicant is without information sufficient to admit or deny the allegations in
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`Paragraph 8 of the Notice of Opposition and, therefore, denies the same.
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`9.
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`Applicant denies the allegations in Paragraph 9 of the Notice of Opposition.
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`Applicant denies the allegations in Paragraph 10 of the Notice of Opposition.
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`Applicant denies the allegations in Paragraph 11 of the Notice of Opposition.
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`Applicant is without information sufficient to admit or deny the allegations in
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`Paragraph 12 of the Notice of Opposition and, therefore, denies the same.
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`14.
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`Applicant denies the allegations in Paragraph 13 of the Notice of Opposition.
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`Applicant denies the allegations in Paragraph 14 of the Notice of Opposition.
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`Applicant denies that Opposer is entitled to the relief for which it prays in the Notice of
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`Opposition. WHEREFORE, Applicant prays that the Notice of Opposition be dismissed with
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`prejudice and that its registration issue forthwith.
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`AFFIRMATIVE DEFENSES
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`First Affirmative Defense
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`The parties’ marks are not similar.
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`Second Affirmative Defense
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`The parties’ goods are not related.
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`Third Affirmative Defense
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`Opposer does not appear to be using the ISOCELL mark in commerce
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`in the United States on all of the goods covered by its registration.
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`Fourth Affirmative Defense
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`Opposer has not properly pleaded a priority claim in this case.
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`Respectfully submitted,
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing “ANSWER” was served on
`Janet Ricciuti Esq. of Janet Gilbert Ricciuti, PC, 3735 Concord Road, Doylestown, PA 18902 via
`first class mail, postage prepaid, today July 29, 2011.
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`5