Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA519433
`ESTTA Tracking number:
`02/01/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91203297
`Defendant
`J. Brahmatewari, MD PA
`RUBEN ALCOBA
`ALCOBA & ASSOCIATES PA
`3399 NW 72ND AVE STE 211
`MIAMI, FL 33122-1343
`UNITED STATES
`alcoba@miamipatents.com, ralcoba@alcobakhullar.com
`Opposition/Response to Motion
`Juliet Alcoba
`jalcoba@miamipatents.com, alcoba@miamipatents.com, lgigliotti@bellsouth.net
`/Juliet Alcoba/
`02/01/2013
`Applicant's Response to Opposer's MSJ.PDF ( 14 pages )(663190 bytes )
`Exhibit 1. Applicant's Response to Opposer's MSJ.PDF ( 2 pages )(42456 bytes
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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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`)E
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`xhibit 2. Applicant's Response to Opposer's MSJ.PDF ( 7 pages )(731377
`bytes )
`Exhibit A. Applicant's Response to Opposer's MSJ.PDF ( 3 pages )(198601
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`Exhibit B. Applicant's Response to Opposer's MSJ.PDF ( 5 pages )(265769
`bytes )
`Exhibit C. Applicant's Response to Opposer's MSJ.PDF ( 5 pages )(163273
`bytes )
`Exhibit D. Applicant's Response to Opposer's MSJ.PDF ( 2 pages )(65752 bytes
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`)E
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`xhibit E. Applicant's Response to Opposer's MSJ.PDF ( 3 pages )(172833
`bytes )
`Exhibit F. Applicant's Response to Opposer's MSJ.PDF ( 3 pages )(154609
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`Exhibit G. Applicant's Response to Opposer's MSJ.PDF ( 2 pages )(121057
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`Exhibit H. Applicant's Response to Opposer's MSJ.PDF ( 2 pages )(57968 bytes
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`xhibit I. Applicant's Response to Opposer's MSJ.PDF ( 2 pages )(365809 bytes
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`)E
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`)E
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`xhibit J. Applicant's Response to Opposer's MSJ.PDF ( 4 pages )(123689
`bytes )
`Exhibit K. Applicant's Response to Opposer's MSJ.PDF ( 3 pages )(121777
`bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
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`TRADEMARK TRIAL AND APPEAL BOARD
`
`Cosmedical Technologies, Inc.
`Opposer
`
`V.
`
`J. Brahrnatewari, M.D. P.A.
`Applicant
`
`\_/\_/‘~u&\&\—/\-/\-/\-p’
`
`Honorable Commissioner for Trademarks
`
`PO Box 1451
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`Alexandria, VA 22313-1451
`
`Opposition No. 91203297
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`Applicant, J. BRAHMATEWARI, M.D., P.A., by and through undersigned counsel, files
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`this Response to Opposer’s Motion for Summary Judgment, and as for grounds in seeking denial
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`of said Motion, states as follows:
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`INTRODUCTION
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`PlaintiEOpposer has clearly failed to meet the standard for summary judgment.
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`Summary Judgment may not be granted unless the pleadings, depositions, answers to
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`interrogatories, admissions on file, affidavits, or other evidence show that there is no genuine
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`issue as to any material facts, and that the moving “party is entitled to judgment as a matter of
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`law. Fed.R.Civ.P. 56(c). Summary Judgment is only necessary where the evidence is such that
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`no reasonable jury could return a verdict for the non—moving party. Andersen V. Libegty Lobby,
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`Inc., 477 U.S. 242, 250 (1986).
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`The moving party has the burden of bringing forward sufficient evidence to establish that
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`there are no genuine issues of material fact and that and that it is entitled to judgment as a matter
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`1
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`of law. Celotex Com. V. Catrett, 477 U.S. 317, 324 (1986)- Opposer must rely on more than
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`mere conclusory allegations and suspicions. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
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`The TTAB is well versed on the standards for summary judgment, and routinely deny
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`motions for summary judgment.
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`Opposer has failed to demonstrate the non-existence of genuine material facts, and its
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`argument that Opposer’s use of COSMEDICAL TECHNOLOGIES is likely to be confused with
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`Applicant’s COSMEDIC CENTRE trademark is simply unsupported.
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`In applying the DuPont factors, it is clear that summary judgment is inapplicable to this
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`case, as there are numerous genuine issues of material fact. Opposer is a private label
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`manufacturer who sells dermatological products to other skin care professionals, doctors, and
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`treatment facilities, and not to the general public. (Decl. Ciraldo at 15, 13). Applicant, on the
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`other hand, is a cosmetic surgeon who offers surgical procedures. Applicant offers its skin care
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`products to the consuming retail public under the DR. BRAHM’S mark. Applicant is the owner
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`of U.S. Registration No.: 3,982,741 for the DR. BRAI-IM’s mark, in IC 005, and the specimen of
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`record with the USPTO includes the COSMEDIC CENTRE portion of the mark with the
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`ballerina figure. (EXHIBIT A). Any reference Opposer has made to Applicant’s skin care
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`products are labeled with the DR. BRA1-IM’s mark.
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`Importantly, Opposer is, amongst other things, a private label manufacturer of skin care
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`products directed for professional use. (EXHIBIT B). Applicant provides skin care treatment
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`and surgical services at retail, to the end user. The American Academy of Dermatology (AAD)
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`is the largest and leading trade group directed to licensed dermatology professional and doctors.
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`AAD, Which was founded in 193 8, and has 17,000 members, offers a Buying Guide. This
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`Buying Guide was submitted as Exhibit 6 to Opposer’s Motion, and hereto as EXHIBIT B. In
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`the most recent edition of the Buying Guide, AAD identifies Opposer as “a private label
`dermatologist owned and formulated skin care manufacturer supplying anti-ageing, anti-acne,
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`and sun care formulas to physicians and spas worldwide.” The mark is always used as
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`“CosMedical” which is very different when compared to Applicant’s use, which is always with
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`the ballerina figure with consistent font, and when sold with skin care products, always with the
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`DR. BRAHM’s mark. (EXHIBIT B)
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`Most, if not all, references to Opposer are directed to its private labeling function directed
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`to skin care professionals. Applicant, on the other hand, provides surgical and skin care
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`procedures to a client base of mostly ordinary members of the consuming public with no special
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`training, no medical licenses, and no private label consumers.
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`The channels oftrade are substantially different. So much so that the respective products
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`of Opposer and Applicant are not directed to the same client bases. The level of sophistication
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`between the licensed skin care professional customer base of Opposer and the retail cosmetic
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`surgery client base ofApplicant are not likely to overlap. Certainly, there are issues of fact
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`regarding this very issue that need resolution, thus not eligible for entry of summary judgment
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`for. Opposer.
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`It is well understood that Qi is the leading authority on the elements of trademark
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`infringement and there is nary a trademark dispute that does not cite it. While not exhaustive,
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`D_1_1_Pflpt cites several factors in determining likelihood of confusion, and is so relied upon as
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`authority that it has been codified in TMEP §1207- There is no “per se” rule in evaluating
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`likelihood of confusion, and the facts in each case vary, the weight to be given each factor may
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`be different, and there must be a likelihood of confusion from the use of similar marks in relation
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`to their facts. TMEP §1207.0l(a)(iv).
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`It is especially because of the difficulty in applying the
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`DuPont factors, that summary judgment is statistically denied. There are simply too many
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`variables and issues of fact to be considered, thus summary judgment is reserved for those cases
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`that are clear on their face, where the parties have agreed on the facts, and where a comparison of
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`the marks as used on their goods and services tend to lean toward the obvious. This is certainly
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`not one of those cases.
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`Applicant seeks registration of the COSMEDIC CENTRE mark in IC 044, for medical
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`clinics. The mark is filed with a logo, which is a silhouette of a woman. (EXHIBIT C).
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`Applicant uses COSMEDIC CENTRE as a trademark only with the logo, which is described to
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`be that of a ballerina. Opposer’s mark is COSMEDICAL TECHNOLOGIES (CosMedical, with
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`a capital “M”), in ICS 003 and 005, for cosmetics and medicated skin care preparations,
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`respectively. Opposer even uses the mark COSMED, which is currently subject to two other
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`applications, neither filed by Opposer.
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`NO EVIDENCE OF ACTUAL CONFUISION
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`It is an issue of fact as to whether there is a likelihood of confusion in this case.
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`Certainly. There is record evidence that Applicant has been seeking to register its COSMEDIC
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`CENTRE mark since at least 2005. (EXHIBIT D). App1icant’s owner was previously assigned
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`Serial No; 78626166, in 2005. The significance is that Applicant has notoriously used the
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`COSMEDIC CENTRE trademark since at least as early as 2005. Conspicuously absent from
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`Opposer’s Motion for Summary Judgment is a scintilla of evidence demonstrating actual
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`confusion. Both Applicant and Opposer operate different businesses in South Florida, and have
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`been together in the market for their goods and services for over 8 years, and have done so
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`Without incident. While the standard is “likelihood,” and not “actual” confusion, surely it is
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`relevant to whether there are issues of fact to be determined regarding the likelihood of
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`confusion in the future Where none has occurred in the past 8 years.
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`There are also several other third-party registrations and applications on file. (EXHIBIT
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`E). Third party registrations may be relevant to demonstrate that the mark, or portion thereof,
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`may be descriptive , suggestive, or so commonly used that the public will look to other elements
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`to distinguish the source of the goods and services. TMEP l207.0l(d)(iii)- AME Inc. V.
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`American Leisure Products Inc., 474 F.2d 1403, 1406 (CCPA 1973).
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`In the case at bar, Applicant was indeed required to disclaim COSMETIC CENTRE due
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`to its descriptive nature, and the mark was published for opposition because it specifically
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`included other design elements, namely, the ballerina figure in association with the word portion
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`of the mark. (EXHIBIT C). Opposer is seeking to capture the exclusive use of a term already
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`deemed by the USPTO to be required to be disclaimed. The descriptive nature of the
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`COSMEDIC CENTRE portion of the mark is descriptive.
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`Attached as Exhibit E is a composite printed from the USPTO website, printed by the
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`undersigned, that demonstrates the existence of the issues of fact related to the third party usage
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`by others relating to the COSMEDIC portion of the mark, which was deemed to be descriptive
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`by the Examiner. The marks include registrations for COSMEDEX, COSMEDICINE, CMC
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`COSMEDICA COMPLEXIONS, BEAUTY COSMEDICS, AVYONCE COSMEDIC SPAS,
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`COSMEDIC CLINIC, and others.
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`A search of the internet and a Google search, while not dispositive or binding as
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`authority, raises questions of fact relating to the third party usage and descriptiveness of the
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`COSMEDIC portion of the mark complained of. (EXHIBIT F). There are numerous usages of
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`the COSMEDIC portion of the mark. Many and most of these references have no relationship
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`with either Opposer or Applicant, and include plastic surgeons in New Jersey, Washington State,
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`and even includes a cosmetic center in Ft. Lauderdale, FL, 0pposer’s home town. (EXHIBIT
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`G). This evidence raises questions of the ability of the COSMEDIC portion of the mark to
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`identify the goods and services of Opposer to the exclusion of others. With such third party
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`usage, the consuming public has a higher level of sophistication in determining the level of likely
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`confusion between the myriad of marks that comprise the COSMEDIC Word portion.
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`COMPETING DECLARATIONS RAISE ISSUES OF FACT
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`Opposer filed the Declaration of Loretta Ciraldo in support of the motion for summary
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`judgment. Dr. Ciraldo is the owner and operator of Opposer. Dr. Ciraldo’s declaration, in and of
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`itself, raises several issues of genuine material fact that preclude summary judgment. Dr. Ciraldo
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`admits that she does not sell to the general public- (Decl. Ciraldo, at 15). Opposer is a private
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`label manufacturer whose products are directed to licensed medical professional, and not the
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`public every day consumer. (Decl. Ciraldo at '|l12). Nowhere does Dr. Ciraldo allege that she
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`offers her products to the same customers/clients that Dr. Brahm sells to. Dr. Ciraldo even
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`admits that her client is more likely to be Dr. Brah1n( a licensed professional) instead of Dr.
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`Brahm’s clients. (Decl. Ciraldo at 1l13). Opposer’s catalog sand exhibits filed in support of the
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`motion for summary judgment are conspicuously void of references to the CosMedical
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`Technologies mark on the products. Instead, the products in Opposer’s catalog are devoid of any
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`references to a source identifier because the very nature of Opposer’s business is to place the
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`client’s name on the product. The products sold by Opposer are generally branded with the
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`individual licensed medical professionals that are referenced as its client base.
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`Dr. Ciraldo also references at T’ that Dr. Brahrnatewari sells competing products, but
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`failed to mention that his retail skin care products all are sold under the “DR. BRAHM’S” mark,
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`and the mark is always used in conjunction with the COSMEDIC CENTRE words and ballerina
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`design. (EXHIBIT I-I). Dr. Ciraldo also claims to sell products under the COSMEDICAL
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`TECHNOLOGIES mark. (EXHIBIT 8, Motion for Summary Judgment). An examination of
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`Exhibit 8 is prefect evidence of the opposite of the proposition offered by Opposer. The mark as
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`used in Exhibit 8 is “CosMedical.” Applicant, as further stated below, always uses the
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`COSMEDIC CENTRE mark within the ballerina figure depicted in the Application on its
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`services, and with skin care products, always uses the DR. BRAI-IM’S mark. There is simply
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`no way that Opposer’s claim can be substantiated, and certainly not at the summary judgment
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`stage.
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`Dr. Ciraldo portrays Opposer (as does the American Academy of Dermatology, the largest
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`trade group dermatology) as a private label manufacturer and fails to offer a scintilla of evidence
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`about the dollar volume, sales records, or other tangible information of testimony, regarding
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`whether the use of the “CosMedical” mark on products is anything other than de minimus.
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`What has been offered is that Opposer is a private label company. In fact, Opposer fashions itself
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`as “the Industry’s best kept secret since 1993." (Exhibit I). There is an issue of fact as to
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`whether Opposer is a best kept secret because it actually markets its products to sophisticated
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`medical professional under their own respective brands, where the end user does not know that
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`the goods emanate from Opposer. This issue of fact makes it more than likely to not lead to
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`confusion, whether it be a likelihood or actual. Dr. Ciraldo’s declaration raises more issues of
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`fact than it solves. These are serious questions of fact that are unresolved.
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`Applicant’s owner, Dr. Brahmatewari, does not sell to private label customers, and directs
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`his product line to his retail client base, who are usually clients of his plastic surgery practice.
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`Applicant does not sell his skin care products except under the DR. BRAI-Il\/I’s mark. He also
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`does not provide any services under the COSMEDIC CENTRE mark except as part of a logo
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`comprising a ballerina figure. (Decl. Dr. Brahm, at ll6). Dr. Brahm is the owner of US Reg. No.
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`3,982,741 for the DR BRAHM’S mark for skin care products and the specimen and label of
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`record contains the DR.BRAHM'S mark and the ballerina figure comprising the C0 SMEDIC
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`CENTRE portion. (Decla. Brahm, at 15 and 6). Dr. Brahm knows of no instance of actual
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`confusion since his adoption of the mark, and despite having operated his business in South
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`Florida, a shared market with Opposer, for at least 8 years. (Decl- Brahm, at 1T8). (EXHIBIT J).
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`THE DUPONT FACTORS FAVOR APPLICANT
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`An examination of any of the DuPont factors should preclude summary judgment.
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`While there is no per se rule, the basic principle in determining confusion between marks is that
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`the marks must be compared in their entireties and must be considered in connection with the
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`particular goods and services for which they are used. Likelihood of confusion cannot be
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`predicated on dissection of a mark, or on only part of the mark, though particular features of a
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`mark may be considered, so long as the marks in their entirety are evaluated. In re National Data
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`Com, 224 USPQ 749, 750-51 (Fed. Cir. 1985).
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`In this case, Opposer is relying on a very small portion of the mark, namely, the use of
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`the letter “D” instead of “T” in COSMEDIC. This very narrow comparison fails to take into
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`consideration the entirety of the COSMEDIC CENTRE mark, which is used merely as part of a
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`logo design incorporating a ballerina figure. The very part of the mark complained of was
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`disclaimed by Applicant. (EXHIBIT C).
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`An examination of the marks in their entirety and application of the DuPont factors
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`should result in denial of Opposer’s Motion for Summary Judgment.
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`1)
`The appearance, sound, connotation and commercial impression between the marks is
`radically different. The marks COSMEDIC CENTRE V. CIOSMEDICAL TECHNOLOGIES are,
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`on their face, different. They sound different. Applicant’s COSMEDIC CENTRE mark clearly
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`connotes a meaning related to a center for cosmetic services. Applicanfs business is a cosmetic
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`center. Opposer sells cosmetics and skin preparations to licensed health care professional.
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`Opposer does not offer cosmetic surgery services. An initial impression created is drastically
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`different from COSMEDICAL TECHOLOIGIES, the Opposer’s mark. Opposer’s
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`C0 SMEDICAL TECHNOLOGIES mark connotes an entirely different flavor. It is actually used
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`as “Coslvledical.” Opposer’s mark does what it intends to do, it draws an impression that it
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`offers goods and services directed to the medical field, hence the COSMEDICAL portion of the
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`mark. An examination of Opposer’s website, the evidence it presented, and its own credo, is that
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`its goods and services are directed to MEDICAL professionals. A COSMEDIC v.
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`COSMEDICAL comparison is more than a mere addition of two letters. The connotation is
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`completely different in that COSMEDIC connotes “cosmetic,” meaning in common terms, an
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`effort to improve a person’s appearance. A synonym is “makeup.” (EXHIBIT K). MEDICAL,
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`on the other hand, means “relating to the science or practice of medicine”, or “relating to
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`conditions requiring medical, but not surgical treatment.” A synonym is “medicinal." When
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`applied to the respective marks, this is exactly what is connoted. COSMEDIC CENTRE offers
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`cosmetic surgical procedures, and COSMEDICAL TECHNOLOGIES offers skin care products
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`to medical professionals. The marks certainly perform their respective, but different functions.
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`2) The goods and services are different. Applicant offers cosmetic surgery and skin care
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`products to the general public, and its skin care products are sold under the DR. BRAHM’S
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`mark. Applicant is primarily a cosmetic surgery facility that also sells some skin care products.
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`However, the skin care products sold by Applicant to the public are always labeled with the mark
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`“DR. BRAHM’S.” (Exhibit J). There is simply no way that any consumer is likely to confuse
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`the respective skin care products. In fact, if anything, Applicant purchases private label products,
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`and would more likely to be a customer of Opposer than a competitor.
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`Opposer, on the other hand, admits that it does not sell to the general public, but rather,
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`offers custom label products to medical professionals to sell under their own unique and
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`individual brands. (Decl. Ciraldo, at 115). The relevant consumers are totally different. Opposer
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`sells private label products to licensed skin care professionals, a completely different and
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`sophisticated purchaser.
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`It is the primary significance of the term to the relevant public that controls whether a
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`mark is descriptive or generic. Magic Wand Inc. v. RBD. Inc., 940 F.2d 638 (Fed. Cir. 1991).
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`There are serious issues of fact related to the likelihood of confusion analysis. Opposer has
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`produced no evidence of a likelihood of confusion, such as direct testimony of consumers,
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`survey evidence, or any other non-conclusory evidence to support its motion. Other than the
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`10
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`bold assertion that there is a likelihood of confusion, there are too many disputed facts and
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`contentions to support summary judgment.
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`3)
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`The similarity or dissimilarity of the channels of trade are in and of themselves, issues of
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`genuine material fact. Opposer portrays itself to the public and to the trade as a private label
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`product manufacturer directed to the professional medical trade. (EXHIBIT B). Applicant is a
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`plastic surgeon who offers cosmetic procedures to the lay public.
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`In over 8 years of co-
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`existence (though it is a genuine material issue that the markets do not overlap at all) there have
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`been zero documented instances of confusion. Surely this is evidence of the existence of genuine
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`issues of material fact.
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`4)
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`The condition under which buyers of the respective goods and services are impulse of
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`sophisticated is clearly a genuine issue of material fact. Applicant would argue that the
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`consumers for both 0pposer’s and Applicant’s goods and services are highly sophisticated.
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`Clearly, Opposer directs its products to medical professionals. These professional have a high
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`level of expertise in their respective fields, and it should be expected that they exercise great care
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`when selecting a manufacturer for goods that bear a private label. Equally, it would seem like
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`common sense that a person seeking a cosmetic procedure would exercise great care and caution
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`when researching a qualified doctor to perform an expensive, intrusive, and somewhat risky
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`procedure. The goods and services at issue require much more care in the selection process
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`because the very nature of the respective goods and services need to be sought out, are not
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`readily available in retail stores or outlets. There is an issue of a material fact regarding the level
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`of care demonstrated by the respective relevant consumers, and common sense tells us that great
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`care is spent is selecting these goods and services.
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`5)
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`Neither mark qualifies as famous. Opposer has offered evidence that it spends about
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`$17,000 per year in advertising. This raises an genuine issue of fact regarding how well known
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`the product is to the consuming public. There is no evidence to support how and where the
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`advertisements are made, other than that Opposer advertises to the trade and not to the lay public.
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`Opposer actually claims to be a “best kept secret in the industry.” (EXHIBIT I).
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`6)
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`As stated above, there a substantial third party usages of related marks, or marks that
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`comprise the COSMEDIC portion.
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`7)
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`The nature and extent of actual confusion is non-existent. The Parties have both existed
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`in the market for at least 8 years without incident. One genuine issue of material fact that is
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`unresolved is to What extent other dermatologist and plastic surgeon know about the existence of
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`both parties, and who simple are not confused regarding the source of the respective products,
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`goods, and services. Opposer has the burden of demonstrating that there are no issues of fact,
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`and has offered nothing to convince to the contrary.
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`8)
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`There are issues relating to the nature of the variety of goods and services offered under
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`the marks- While the parties have offered some evidence of how the marks are currently used, it
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`is important to note that the classes of goods and services do not overlap. Opposer is registered
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`in IC 003 and 005 and Applicant is seeking a registration in IC 044. Arguments have been made
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`by Opposer that the goods are related, but other than bold and unsubstantiated conclusions, has
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`not met the burden of establishing the absence of genuine issues of material fact, especially when
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`it has become clear how different the goods and services really are in relation to the respective
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`customer bases. There is no evidence that 0pposer’s owner, a licensed medical professional,
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`offers plastic surgery services under the COSMEDICAL TECHNOLOGIES mark, and Applicant
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`sells its skin care products under the DR. BRAHM’S mark
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`CONCLUSION
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`The evidence before the Board simply raises too many issues of fact to warrant summary
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`judgment. If anything, this case is ripe for summary judgment for Applicant, which may be
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`forthcoming.
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`A comparison of the marks warrant denial of summary judgment. The channels of trade
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`are substantially different. Opposer has not offered any quality evidence regarding its use of
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`CosMedical Technologies on products, other than its use of the mark for private label goods
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`directed at the highly sophisticated licensed medical professional market. Opposer admits that it
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`does not sell to the general public, which is Applicant’s only market.
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`Importantly, there is not a scintilla of evidence, nor has there even been a proffer of any
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`kind, that despite the parties sharing the same geographical market (South Florida) that there has
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`not been a single incident of actual confusion, Not even a misplaced phone call, nor a complaint
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`from a single customer of Opposer or medical professional. Applicant has offered evidence that
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`on every skin care product it sells it uses the DR. BRAHM’S mark with the COSMEDIC
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`CENTRE mark and ballerina figure.
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`Simply stated, Opposer’s Motion for Summary Judgment is weak on the facts and the
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`evidence does not support granting of the motion. If anything, the future may hold for summary
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`judgment for Applicant.
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`CERTIFICATE OF TRANSMISSION
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`I, Louis R. Gigliotti, hereby certify that the foregoing Response to Opposer’s Motion for
`Summary Judgment is being electronically transmitted via the Electronic System for Trademark
`Trials and Appeals (“ESTTA”) on February 1, 2013 and that a copy of this paper has been served
`upon all parties, at their address of record by email,
`litigation@patentrniami.corn;
`alcoba@miamipatents.com; on this date.
`
`By: s/Louis R. Gigliottil
`Louis R. Gigliotti, Esq.
`Alcoba Law Group, RA.
`3399 NW 72“ Avenue, Suite 211
`Miami, FL 33122
`Tel: (305) 362 - 8118
`Facsimile: (305) 436 -7429
`Representing the Applicant
`Florida Bar No. 71935
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`DECLARATIONDECLARATION
`
`
`
`EXHIBIT 1EXHIBIT 1
`
`

`
`{(1123
`
`étatez of Qmema
`
`flisluiteh étabza’ ifiatent arm fllirahematk Gfiffine
`
`DRBRAHM'S
`
`Reg. No. 3,982,741
`
`Registered June 21, 2011
`
`THE BRAHM GROUP, L.L.C. (FLORIDA LIMITED LIABILITY COMIPANY)
`STE. 200
`6301 BISCAYNE BLVD.
`MIAMI, FL 33133
`
`Int. Cl.: 5
`
`TRADEMARK
`
`PRINCIPAL REGISTER
`
`FOR: MEDICATED LOTIONS FOR THE FACE, AND BODY; NON-MEDICATED, THERA-
`PEUTIC SKIN CREAMS FOR THE TREATMENT OF ANTI-AGING, EYES, FADING, ACNE,
`AND SUN DAMAGE; MEDICATED SKIN CARE PREPARATIONS, IN CLASS 5 CU.S. CLS.
`6, 18, 44, 46, SI AND 52).
`
`FIRST USE 4-27-2011; IN COMMERCE 4-27-2011.
`
`THE MARK CONSISTS OF STANDARD CI-IARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULAR FONT, STYLE, SIZE, OR COLOR.
`
`THE NAME "DR. BRAE-IM'S" IDENTIFIES A LIVING INDIVIDUAL WHOSE CONSENT IS
`OF RECORD.
`
`SN 85-118,905, FILED 840-2010.
`
`ANDREA BUTLER, EXAMINING ATTORNEY
`
`
`
`Dirccmr arm: United Smtcs Pumm. and ‘I1-.::l:m:::k 0ffi:=
`
`

`
`
`
`DECLARATIONDECLARATION
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`
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`EXHIBIT 2EXHIBIT 2
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`

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`Trademark/Service Mark Statement of Use
`
`Page 1 of 4
`
`Trademark/Service Mark Statement of Use
`
`(15 U.S.C. Section 1051(d))
`
`
`The table below presents the data as entered.
`
`85118906
`
`LAW OFFICE 102
`
`'
`
`
`
`EEEEEEEE
`
`SERIAL NUMBER
`
`LAW OFFICE ASSIGNED
`
`EXTENSION OF USE
`
`MARK SECTION
`
`MERE
`
`NEEEE
`EEEEEE
`cm
`EEEEE
`EEEEEEEEEOEE
`EOENEEE
`EEONE
`OWNER SECTION (proposed)
`
`EEEEEEAEEEEEEEE
`EEEEEE
`cm
`EEEEE
`EEEEEEEE EOEE
`CEEEEEE
`
`PHONE
`
`I||l|II|i
`
`
`
`
`
`305-751-7771
`
`GOODS AND/OR SERVICES SECTION
`
`INTERNATIONAL CLASS
`
`005
`
`https://tsdrsec.uspto.gov/ts/cd/casedoc/sn851 18906/SOU20110429154131/1/webcontent
`
`2/1/201 3
`
`

`
`Trademark/Service Mark Statement of Use
`
`Page 2 of 4
`
`CURRENT IDENTIFICATION
`
`Medicated lotions for the face, and body; Non-
`medicated, therapeutic skin creams for the treatment
`of anti-aging, eyes, fading, acne, and sun damage;
`medicated skin care preparations
`
`\\TICRS\EXPORT11\1MAGEOUT 11\851\189
`
`\\TICRS\13XPORT1 1\I1\/IAGEOUT 1 1\8S1\1 89
`\85118906\xm113 \SOUO003 JPG
`
`‘hi
`
`1“
`
`-
`
`PAYMENT SECTION
`
`NUNEBER OF CLASSES IN USE
`
`SUBTOTAL AMOUNT
`[ALLEGATION OF USE FEE]
`
`TOTALAMOUNT
`
`SIGNATURE SECTION
`
`1
`
`100
`
`DECLARATION SIGNATURE
`
`/ruben alcobal
`
`SIGNATORY'S NAME
`
`ruben alcoba, esq.
`
`SIGNATORY'S POSITION
`
`attorney of record florida bar
`
`DATE SIGNED
`
`04/28/2011
`
`FILING INFORMATION
`
`SUBMIT DATE
`
`Thu Apr 28 12:47:38 EDT 2011
`
`TEAS STAMP
`
`USPTO/SOU-66.229103 .208-
`20110428124738123588-8511
`
`8906-480bfd4cb8 1bbc3f45 a4
`
`1 2c3fa1 ec195 1 5-CC—95 64-20
`110428123332684854
`
`https://tsdrseeuspto.gov/ts/cd/casedoc/sn851 18906/SOU201 10429154131/1/webcontent
`
`2/1/2013
`
`

`
`Trademark/Service Mark Statement of Use
`
`Page 3 of 4
`
`PTO Form 1553 (Rev Q/2005)
`OMB No. 0651-0054 (Exp. 09/30/2011)
`
`Trademark/Service Mark Statement of Use
`
`(15 U.S.C. Section 1051(d))
`
`To the Commissioner for Trademarks:
`
`MARK: DRBRAI-lM‘S
`
`SERIAL NUMBER: 85118906
`
`The applicant, The Brahm Group, L.L.C., having an address of
`Ste. 200
`
`6301 Biscayne Blvd.
`Miami, Florida 33138
`United States
`
`is submitting the following allegation of use information:
`
`For International Class 005:
`
`Current identification: Medicated lotions for the face, and body; Non—medicated, therapeutic skin creams
`for the treatment of anti-aging, eyes, fading, acne, and sun damage; medicated skin care preparations
`
`The mark is in use in commerce on or in connection with all goods or services listed in the application or
`Notice of Allowance or as subsequently modified for this specific class
`
`The mark was first used by the applicant, or the applicant's related company, licensee, or predecessor in
`interest at least as early as 04/27/2011, and first used in commerce at least as early as 04/27/2011, and is
`now in use in such commerce. The applicant is submitting one specimen for the class showing the mark
`as used in commerce on or in connection with any item in the class, consisting of a(n) containers
`showing how the mark is used in commerce..
`Specimen Filel
`Specimen File2
`
`The applicant is not filing a Request to Divide with this Allegation of Use form.
`
`A fee payment in the amount of $100 will be submitted with the form, representing payment for the
`allegation of use for 1 class.
`
`Declaration
`
`Applicant requests registration of the above-identified trademark/service mark in the United States
`Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C.
`Section 1051 et seq., as amended). Applicant is the owner of the mark sought to be registered, and is
`using the mark in commerce on or in connection with the goods/services identified above, as evidenced
`by the attached specimen(s) showing the mark as used in commerce.
`
`https://tsdrsec.uspto.gov/ts/cd/casedoc/sn851 18906/SOU20l10429154131/l/webcontent
`
`2/1/2013
`
`

`
`Trademark/Service Mark Statement of Use
`
`Page 4 of 4
`
`The undersigned, being hereby Warned that willful false statements and the like so made are punishable
`by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such Wlllflll false statements
`may jeopardize the Validity of the form or any resulting registration, declares that he!she is properly
`authorized to execute this form on behalf of the applicant; he/she believes the applicant to be the owner
`of the trademark/service mark sought to be registered; and that all statements made of his/her own
`knowledge are true; and that all statements made on information and belief are believed to be true.
`
`Date Signed: 04/28/2011
`Signature: /ruben alcobaf
`Signatory's Name: ruben alcoba, esq.
`Signatory's Position: attorney of record florida bar
`
`RAM Sale Number: 9564
`
`RAM Accounting Date: 04/28/2011
`
`Serial Number: 85118906
`
`Internet Transmission Date: Thu Apr 28 12:47:38 EDT 201 1
`TEAS Stamp: USPTO/SOU-66.229.103.208-2011042812473 81
`23588-85118906-480bfd4cb8lbbc3f45a412c3f
`
`a1ec19515~CC—9564-201 1 0428123332684854
`
`https://tsdrsec.uspto.goV/ts/cd/casedoc/sn85118906/SOU20l10429154131/1/webcontent
`
`2/1/2013
`
`

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`

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`

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`
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`EXHIBITAEXHIBITA
`
`

`
`“mfg $13113 Elf Q3121.
`
`flflniteh étatesi fiatent ant: Erahamatk ®EEi£B
`
`11;?
`
`DRBRAHMS
`
`Reg. No. 3,982,741
`
`Registered June 21, 2011
`
`TI-IE BRAI-QM GROUP, L.L.C. (FLORIDA LIMITED LIABILITY COMPANY)
`STE. 200
`6301 BISCAYNE BLVD.
`MIAMI, FL 33138
`
`Int. Cl.: 5
`
`TRADEMARK
`
`PRINCIPAL REGISTER
`
`FOR: MEDICATED LOTIONS FOR THE FACE, AND BODY; NON-MEDICATED, THERA-
`PEUTIC SKIN CREAMS FOR THE TREATMENT OF ANTI-AGING, EYES, FADING, ACNE,
`AND SUN DAMAGE; MEDICATED SKIN CARE PREPARATIONS, IN CLASS 5 (U.S. CLS.
`6, 18, 44, 46, 51 AND 52).
`
`FIRST USE 4-27-2011; IN COMEMERCE 4-27-2011.
`
`TI-EE. MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
`TICULAR FONT,