Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA652001
`ESTTA Tracking number:
`01/25/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91215024
`Defendant
`OLYMPIC SEAFOOD AS
`WENDY E MILLER
`COOPER & DUNHAM LLP
`30 ROCKEFELLER PLAZA
`NEW YORK, NY 10112
`UNITED STATES
`wmiller@cooperdunham.com, tm@cooperdunham.com, rsquicciar-
`ini@cooperdunham.com, rmondon@cooperdunham.com
`Motion for Summary Judgment
`Wendy E. Miller
`wmiller@cooperdunham.com, lsung@cooperdunham.com
`/Wendy E. Miller/
`01/25/2015
`Motion for SJ and Memo.pdf(113855 bytes )
`Declaration of Wendy E. Miller.pdf(4286048 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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`
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`U.S. App. No. :
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`79/125,884
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`Filed
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`Trademark
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`September 17, 2012
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`THE DIFFERENCE IS CLEAR (and design)
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`Opposition No. 91215024
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`_____________________________________
`X
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`NEW CHAPTER, INC.,
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` Opposer,
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` v.
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`OLYMPIC SEAFOOD AS,
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` Applicant.
`_____________________________________X
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`MOTION BY APPLICANT FOR SUMMARY JUDGMENT
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`Applicant, Olympic Seafood AS, hereby moves for summary judgment pursuant to Rule
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`56, F.R.Civ.P., and 37 C.F.R. § 2.116(a), dismissing this opposition on the ground that there is
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`no genuine issue of material fact on the following issues:
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`1. Opposer has not made continuous, substantially nonexclusive use of its asserted mark
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`since before Applicant’s effective filing date; and
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`2. Opposer’s asserted mark is merely descriptive.
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`In support of this motion, Applicant relies on the accompanying Memorandum and
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`Declaration of Wendy E. Miller.
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`Dated: January 25, 2015
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`Respectfully submitted,
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`
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`By: __/Wendy E. Miller/
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`Wendy E. Miller
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`COOPER & DUNHAM LLP
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`30 Rockefeller Plaza
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`New York, New York 10112
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`Tel: (212) 278-0400
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`wmiller@cooperdunham.com
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`Attorneys for Applicant
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`U.S. App. No. :
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`79/125,884
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`
`
`
`
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`
`
`
`
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`Filed
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`Trademark
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`:
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`:
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`September 17, 2012
`
`THE DIFFERENCE IS CLEAR (and design)
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`
`
`Opposition No. 91215024
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`_____________________________________
`X
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`NEW CHAPTER, INC.,
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`
`
` Opposer,
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` v.
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`OLYMPIC SEAFOOD AS,
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`:
` Applicant.
`_____________________________________X
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`MEMORANDUM IN SUPPORT OF APPLICANT’S
`MOTION FOR SUMMARY JUDGMENT
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`Applicant, Olympic Seafood AS, hereby moves for summary judgment pursuant to Rule
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`56, F.R.Civ.P., and 37 C.F.R. § 2.116(a), dismissing this opposition on the ground that there is
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`no genuine issue of material fact for trial.
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`Opposer does not have priority because it has not used the asserted mark THE
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`DIFFERENCE IS CLEAR in commerce at any time, let alone since before Applicant’s effective
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`filing date. Opposer has failed to produce any evidence showing that any of its goods, dietary
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`and nutritional supplements and vitamins, bearing its asserted mark have been sold, shipped, or
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`distributed to anyone, at any time, in the United States.
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`Opposer also may not rely on its asserted mark to establish priority because Opposer’s
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`asserted mark is merely descriptive of its goods. Undisputed evidence shows that Opposer and
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`1
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`numerous third parties use the term “the difference is clear” to describe ingredient, qualities,
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`characteristics and features of dietary and nutritional supplements and vitamins, specifically to
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`indicate to consumers that the fish oil used in their supplements is clear or transparent relative to
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`others. To the extent Opposer could identify an evidentiary dispute concerning descriptiveness
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`(although it cannot), this third party evidence establishes that Opposer’s use of the designation is
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`not been substantially exclusive and cannot form the basis for this opposition.
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`Because Opposer has failed to produce any evidence which could raise a genuine issue of
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`material fact on these issues, there is no evidence on which the Board could sustain the
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`opposition, and the opposition should be dismissed.
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`I.
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`MATERIAL FACTS THAT ARE NOT IN DISPUTE
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`Applicant is the owner of U.S. Application No. 79/125,884, filed on September 17, 2012,
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`based on Section 66(a) and claiming priority on International Registration No. 1149364, filed
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`April 12, 2012, for a composite mark including a distinctive design feature and the words THE
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`DIFFERENCE IS CLEAR, for the following goods (“the Olympic Seafood Application”):
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`Class 5: Pharmaceutical preparations, namely, processed and unprocessed krill, dried
`krill, krill meal, krill powder, krill extracts and krill oil sold as a component ingredient of
`pharmaceuticals in the nature of antioxidants, dietary supplements and nutraceuticals in
`the nature of dietary supplements; pharmaceutical preparations, namely, processed and
`unprocessed krill, dried krill, krill meal, krill powder and krill oil sold as a component
`ingredient of pharmaceuticals in the nature of antioxidants for pharmaceutical and
`nutraceutical purposes
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`Class 29: Meat, fish, namely, processed krill and dried krill, poultry and game; edible oils
`and fats, namely, krill meal, krill powder and krill oil
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`Opposer is the owner of U.S. Application No. 85/784,097, for the designation THE
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`DIFFERENCE IS CLEAR, filed November 20, 2012, based on Section 1(a) and alleging first
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`use on August 31, 2009, for “dietary and nutritional supplements; vitamins” in Class 5 (the New
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`Chapter Application”). The New Chapter Application has been refused registration based on the
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`Olympic Seafood Application.
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`Discovery closed on November 27, 2014. Opposer produced no records whatsoever to
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`show that any goods bearing the asserted mark have been sold or distributed to anyone, at any
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`time. Opposer produced no purchaser orders, no invoices, no shipping records and no sales
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`records. In its Pretrial Disclosures served on January 9, 2015, Opposer identified one witness to
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`give testimony in support of its opposition (Miller Decl. Exhibit A). This witness will not give
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`testimony concerning the distribution, sale, or shipment of any goods bearing the mark.
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`Opposer and numerous third parties use the designation “the difference is clear” in
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`advertising and promoting dietary and nutritional supplements and vitamins containing fish oil.
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`According to Opposer and others, the clarity or transparency of the fish oil contained in a fish oil
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`supplement is an important feature of the product. Clear, transparent fish oil indicates purity and
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`quality, as distinguished from fish oil that is cloudy or dull. Opposer uses the designation “the
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`difference is clear” to indicate that its WHOLEMEGA supplements contain clear, transparent
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`fish oil and, for that reason, are superior in quality relative to others. Opposer states:
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`The dull, yellow hue and watery texture of conventional fish oil capsules is symbolic of
`“purified” products. This heavy distillation (which can be necessary to remove
`contaminants) can fractionate, isolate, and destroy beneficial compounds that give fish oil
`its naturally vibrant color and clarity.
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`Wholemega, however, delivers an oil that is striking in color and transparency. The
`brilliant hue in Wholemega comes from Astaxanthin – an extremely powerful antioxidant
`that is naturally found in wild salmon and abundant in this extra virgin fish oil. The
`gentle process used to extract Wholemega preserves this antioxidant as well as numerous
`other beneficial compounds – including vitamin D3. In fact, this whole oil is delivered
`from a government inspected FOOD GRADE facility.
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`(Miller Decl. Ex. B-3) (emphasis added).
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`Opposer compares its WHOLEMEGA supplements to those of others by using a visual
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`aid which bears the caption “Wholemega vs. Conventional Fish Oil” or “Wholemega vs. Purified
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`Fish Oil” (Miller Decl. Ex. B-1-3, B-5-7). Opposer also uses variants of its asserted trademark to
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`convey the fact that there is a clear difference between the clarity of fish oil in Opposer’s
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`supplements as compared to that of others:
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`“See the Difference” (Miller Decl. Ex. B-3, B-6-7);
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`“A Difference That’s Clear” (Miller Decl. Ex. B-5, B-7);
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`“A Whole New Fish Oil with a Clear Difference” (Miller Decl. Ex. B-6-7)
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`Numerous third parties also use the designation “the difference is clear” to indicate that
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`their fish oil supplements are of a superior quality based on the clarity of the fish oil.
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`The difference is clear: Omega Factor fish oils are the best-formulated professional fish
`oil supplements available. (Miller Decl. Ex. C-1-3 at 3);
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`The difference is clear: Orthomega fish oils are the best-formulated professional fish oil
`supplements available. (Miller Decl. Ex. C-4-9 at 5, Ex. C-10-11);
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`“Put a pill of your store bought brand of omega-3 in the freezer overnight. Then put
`Omax3® in the freezer overnight. The difference is clear. The store bought brand will be
`cloudy, even a solid white. This is the bad fats and toxins solidifying. Your body doesn't
`need them. Omax3® will remain clear," says Dr. Maroon. (Miller Decl. Ex. C-12-14 at
`13; Ex. C-15-18 at 17; Ex. C-24)
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`The differences is clear: burp-free guaranteed. Omega-3 Clear Enteric Softgels. (Miller
`Decl., Ex. C-19, Webber Naturals);
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`Cardiostat contains a highly concentrated potency of EPA Omega -3 fatty acid in order to
`improve heart health in just 2 softcaps per day. Compare the EPA content of Cardiostat to
`your current fish oil product. The difference is clear. Cardiostat sources fish oil from deep
`ocean waters not farm raised fish. The fish oil is molecularly distilled to remove mercury,
`PCBs and toxins. Cardiostat is guaranteed for purity, potency and freshness. Cardiostat
`does not contain artificial dyes, colors, preservatives, flavors, gluten, starch or lactose.
`(Miller Decl. Ex. C-20-23 at 21).
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`II.
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`ARGUMENT
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`A.
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`There Is No Evidentiary Dispute Concerning The Material Facts In This
`Opposition.
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`Summary judgment pursuant to Rule 56, F.R.Civ.P., is encouraged in trademark
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`proceedings when there are no genuine issues of material fact to be resolved. Summary
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`judgment conserves judicial resources by saving the time and expense of a trial when an opposer
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`cannot establish its claims as a matter of law. Aries Systems Corp. v. World Book Inc., 23
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`U.S.P.Q.2d 1742, 1744 (T.T.A.B. 1992); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624,
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`222 U.S.P.Q. 741, 743 (Fed. Cir. 1984). As demonstrated below, Opposer in this case cannot
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`establish use of a distinctive trademark in commerce, or priority relative to Applicant.
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`Therefore, there is no evidentiary conflict which would merit a trial to confirm Applicant’s right
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`to register its mark.
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`B.
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`Opposer Cannot Establish Trademark Use Or Priority Relative To Applicant.
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`Applicant’s effective filing date, April 12, 2012, is earlier than Opposer’s filing date,
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`November 20, 2012. The undisputed facts confirm that Opposer has no evidence that it has
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`made any actual use of its asserted mark in commerce since before Applicant’s effective filing
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`date. Opposer produced no records whatsoever to show that any goods bearing the asserted mark
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`have been sold or distributed to anyone, at any time. Therefore, there is no evidentiary dispute
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`on this issue. Opposer has no evidence to support it claim of priority, and the opposition should
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`be dismissed.
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`C.
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`The Designation “The Difference Is Clear” Is Merely Descriptive And Cannot
`Form The Basis For This Opposition.
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`Because Applicant has priority as a matter of law, this opposition should be dismissed
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`and there is no need to address the issue of descriptiveness. However, even if Opposer could
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`establish priority (although it cannot), summary judgment in Applicant’s favor is warranted
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`because Opposer’s mark THE DIFFERENCE IS CLEAR is merely descriptive and cannot be
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`relied upon to establish prior use of a trademark in commerce.
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`A trademark is merely descriptive if it describes an ingredient, quality, characteristic,
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`function, feature, purpose, or use of the specified goods or services. See In re Gyulay, 820 F.2d
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`1216, 3 U.S.P.Q.2d 1009 (Fed. Cir. 1987) (APPLE PIE merely descriptive of potpourri); In re
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`Bed & Breakfast Registry, 791 F.2d 157, 229 U.S.P.Q. 818 (Fed. Cir. 1986) (BED &
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`BREAKFAST REGISTRY merely descriptive of lodging reservations services). A mark also is
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`merely descriptive if it immediately conveys information to relevant consumers about a quality,
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`feature, function, or characteristic of the associated goods. In re Chamber of Commerce of the
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`U.S., 675 F.3d 1297, 1300, 102 U.S.P.Q.2d 1217, 1219 (Fed. Cir. 2012); In re Bayer
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`Aktiengesellschaft, 488 F.3d 960, 963-64, 82 U.S.P.Q.2d 1828, 1831 (Fed. Cir. 2007).
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`Opposer and numerous third parties who sell fish oil supplements use the designation
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`“the difference is clear” to convey the fact that the fish oil contained in their respective
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`supplements is clear or transparent in comparison to others (Miller Decl. Ex. C). These uses of
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`the designation immediately convey information to consumers about the ingredients, the quality,
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`and the characteristics and features of those goods.
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`Moreover, Opposer does not use the asserted mark in any consistent manner. It uses
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`variants of the designation, such as “See the Difference,” “A Difference That’s Clear” and “A
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`Whole New Fish Oil with a Clear Difference” to convey the same message (Miller Decl. Ex. B).
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`This confirms that Opposer’s asserted mark is both indistinct and merely descriptive of
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`Opposer’s goods.
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`This evidence demonstrates that the designation THE DIFFERENCE IS CLEAR, when
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`used in association with Opposer’s goods, is merely descriptive and cannot form the basis for
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`opposition registration of Applicant’s mark. Opposer has failed to produce any evidence which
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`disputes or rebuts this showing. Therefore, there is no evidentiary dispute on this issue.
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`Further, the substantial third party uses of the designation “the difference is clear”
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`demonstrates that any possible trademark use that Opposer could establish (although there is
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`none) is not substantially exclusive.
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`Based on Opposer’s Pretrial Disclosures, no further evidence concerning descriptiveness
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`or substantial exclusivity is forthcoming. Opposer does not state any intention to offer testimony
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`to rebut Applicant’s allegation and the evidence proffered by Applicant on these issues.
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`Because Opposer has failed to produce any evidence which could raise a genuine issue of
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`material fact on these issues, there is no evidentiary dispute for trial. Opposer’s mark is merely
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`descriptive as a matter of law and cannot be relied upon to preclude Applicant from registering
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`its mark. Since there is no evidence on which the Board could sustain the opposition, the
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`opposition should be dismissed.1
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`1 If the Board is inclined to grant summary judgment in favor of Applicant, Applicant
`would agree and hereby requests leave to amend its application to disclaim rights in the words
`THE DIFFERENCE IS CLEAR apart from the mark as shown.
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`III.
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`CONCLUSION.
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`There being no genuine issue of material fact which would permit the conclusion that
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`Opposer has priority in this case, or the conclusion that Opposer’s mark is merely descriptive,
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`summary judgment should be granted in Applicant’s favor, and the opposition should be
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`dismissed.
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`Dated: January 25, 2015
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`Respectfully submitted,
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`By: __/Wendy E. Miller/
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`Wendy E. Miller
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`COOPER & DUNHAM LLP
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`30 Rockefeller Plaza
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`New York, New York 10112
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`Tel: (212) 278-0400
`wmiller@cooperdunham.com
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`Attorneys for Applicant
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true copy of the foregoing APPLICANT’S MOTION FOR
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`SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF APPLICANT’S MOTION
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`FOR SUMMARY JUDGMENT and DECLARATION OF WENDY E. MILLER were served by
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`email and first class mail, postage prepaid, this 25th day of January, 2015, and by first class mail,
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`postage prepaid, on the 26th day of January, 2015, addressed as follows:
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`
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`Karen Kreider Gaunt
`Dinsmore & Shohl LLP
`255 East Fifth Street, Suite 1900
`Cincinnati, OH 45202
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`__/Wendy E. Miller/
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`Wendy E. Miller
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`9
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
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`U.S. App. No. :
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`79/125,884
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`
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`
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`Filed
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`Trademark
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`:
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`:
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`September 17, 2012
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`THE DIFFERENCE IS CLEAR (and design)
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`
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`Opposition No. 91215024
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`
`
`_____________________________________
`X
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`: :
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`NEW CHAPTER, INC.,
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` Opposer,
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` v.
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`OLYMPIC SEAFOOD AS,
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`:
` Applicant.
`_____________________________________X
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`DECLARATION OF WENDY E. MILLER
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`I, WENDY E. MILLER, declare as follows:
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`1.
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`I am a partner in the law firm of Cooper & Dunham LLP, attorneys for the Applicant
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`in this proceeding, Olympic Seafood AS. I am a member in good standing of the bar of the State
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`of New York. I make this declaration in support of the motion of Olympic Seafood AS for
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`summary judgment pursuant to Rule 56, F.R.Civ.P., and 37 C.F.R. § 2.116(a), dismissing this
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`opposition on the ground that there is no genuine issue of material fact for trial.
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`2.
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`3.
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`Attached as Exhibit A is a true and correct copy of Opposer’s Pretrial Disclosures.
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`Attached as Exhibit B are true and correct copies of documents PROC000008-12,
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`PROC000019 and PROC000039, produced by Opposer in this proceeding.
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`4.
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`Attached as Exhibit C are true and correct copies of printed publications downloaded
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`by this office from the Internet and produced by Applicant in this proceeding as production
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`documents OS3-5, OS9-16, OS25-27 and OS31-40.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Dated: January 25, 2015
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`__/Wendy E. Miller/
`Wendy E. Miller
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`2
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
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`App. No. 79/125,884
`Opposition No. 91215024
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`Mark: THE DIFFERENCE IS
`CLEAR
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`NEW CHAPTER, INC.,
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`Opposer,
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`vs.
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`OLYMPIC SEAFOOD AS,
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`Applicant.
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`OPPOSER NEW CHAPTER, INC.’S PRETRIAL DISCLOSURES
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`Pursuant to Rule 702.01 of the Trademark Trial and Appeal Board Manual of Procedure, Fed.
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`R. Civ. P. 26(a)(3), and 37 C.F.R. 2.121(e), Opposer New Chapter, Inc. (“New Chapter” or
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`“Opposer”), by its counsel, hereby makes its pretrial disclosures to Applicant Olympic Seafood AS
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`(“Olympic Seafood” or “Applicant”).
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`Witness:
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`1. Robert Lierle
`Vice President, Marketing
`New Chapter, Inc.
`90 Technology Drive
`Brattleboro, Vermont 05301
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`Mr. Lierle may testify as to Opposer’s first, continuous and extensive use of
`Opposer’s THE DIFFERENCE IS CLEAR trademark on product packaging, product
`inserts, point of sale displays, advertising, flyers, circulars and in other manner and
`media made in connection with the promotion and sale of Opposer’s supplement
`goods.
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`2. Persons With Knowledge from Olympic Seafood AS and/or the equivalent of a
`30(b)(6) witness from Olympic Seafood AS to the extent one is identified or
`produced by Olympic Seafood at some later date in this proceeding or is discovered
`by Opposer through other means.
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`Exhibit A-1
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`Exhibits:
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`New Chapter anticipates that it may use the following categories of documents and
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`electronically stored information to support its claims:
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`• Documents relating to New Chapter’s history and use of its THE DIFFERENCE IS
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`CLEAR trademark in connection with dietary and nutritional supplements and
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`vitamins;
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`• Documents relating to New Chapter’s sales and promotion of its goods under its
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`THE DIFFERENCE IS CLEAR trademark;
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`• Documents relating to New Chapter’s first use of its THE DIFFERENCE IS CLEAR
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`trademark in connection with supplement goods dating back to 2009;
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`• Documents relating to New Chapter’s continued and extensive use of its THE
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`DIFFERENCE IS CLEAR trademark in connection with supplement goods from
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`2009 through the present;
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`• Documents relating to sales volumes for products sold bearing Opposer’s THE
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`DIFFERENCE IS CLEAR mark;
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`• Documents relating to advertising spent promoting Opposer’s goods sold under its
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`THE DIFFERENCE IS CLEAR mark;
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`• Documents relating to New Chapter’s ownership of its THE DIFFERENCE IS
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`CLEAR trademark;
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`• As may be stipulated by the parties or with permission from the Board, Declaration
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`of Robert Lierle attesting to New Chapter’s first, ongoing, continuous and extensive
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`use of its THE DIFFERENCE IS CLEAR mark from 2009 through the present for
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`supplement goods;
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`2
`Exhibit A-2
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`• Documents relative to Applicant’s opposed application and application filing date
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`and the basis therefor, to the extent such documents may be produced by Applicant at
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`some later date in this proceeding or discovered by Opposer through other means;
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`• Documents relating to Applicant’s underlying national registration for THE
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`DIFFERENCE IS CLEAR & Design in Norway asserted by Applicant as the filing
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`basis for the opposed Application under 66A to the extent such documents may be
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`produced by Applicant at some later date in this proceeding or discovered by
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`Opposer through other means;
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`• Documents relating to Applicant’s bona fide intent to use the opposed THE
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`DIFFERENCE IS CLEAR & Design mark in the United States to the extent such
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`documents may be produced by Applicant at some later date in this proceeding or
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`discovered by Opposer through other means;
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`• Documents relating to Applicant’s repeated, stated position as to the relevancy of the
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`issues for determination by the Board in this proceeding;
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`• The file history at the Trademark Office for Application Serial No. 85/784,097 for
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`THE DIFFERENCE IS CLEAR trademark owned by Opposer New Chapter;
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`• The file history at the Trademark Office for Applicant’s opposed Application Serial
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`No. 79/125,884 for THE DIFFERENCE IS CLEAR & Design owned by Applicant
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`Olympic Seafood;
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`• Documents relating to Opposer’s use-based application for THE DIFFERENCE IS
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`CLEAR, Serial No. 85/784,097;
`
`• The discovery documents propounded by Opposer on Applicant in this proceeding
`
`on October 10, 2014 and on November 26, 2014;
`
`• Applicant’s First Set of Requests for Production of Documents served on Opposer on
`
`June 16, 2014;
`
`3
`Exhibit A-3
`
`

`
`• Opposer’s responses and responsive document production provided to Applicant on
`
`July 16, 2014 and supplemented with further responsive documents later located by
`
`Opposer and provided to Applicant on November 20, 2014, both responses and
`
`productions in response to Applicant’s First Set of Requests for Production served on
`
`Opposer on June 16, 2014; and
`
`• Applicant’s admissions, denials, objections, and lack of responses to Opposer’s
`
`discovery requests propounded on Applicant on October 10, 2014 and November 26,
`
`
`/ Karen Kreider Gaunt /
` Karen Kreider Gaunt
`April L. Besl
`DINSMORE & SHOHL LLP
`255 East Fifth Street
`Cincinnati, Ohio 45202
`(513) 977-8503-direct
`(513) 977-8141-fax
`karen.gaunt@dinsmore.com
`april.besl@dinsmore.com
`
`Attorneys for Applicant
`New Chapter, Inc.
`
`
`
`2014 in this proceeding.
`
`
`
`
`
`Dated:
`
`
`January 9, 2015
`
`
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that a copy of the foregoing was sent by first-class U.S. mail, with
`
`courtesy copy via email, on this 9th day of January, 2015 to Wendy E. Miller, Attorney for
`
`Applicant, Cooper & Dunham LLP, 30 Rockefeller Plaza, New York, New York 10112.
`
`
`
`
`
`
`
`
`
`
`
`/ Karen Kreider Gaunt /
` Karen Kreider Gaunt, Attorney for Opposer
`
`
`
`
`
`4
`Exhibit A-4
`
`

`
`Extra-Virgin, Wildly Pure™
`
`Wholemega’s
`optimal balance of
`16 omegas is
`Nature’s design
`for health.
`The diference
`is clear.
`
`VS.
`
`Wholemega®
`
`Conventional Fish Oil
`
`*These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure, or prevent any disease.
`
`Exhibit B-1
`
`CONFIDENTIAL
`
`PROC000008
`
`

`
`improved key markers of my heart
`“I improved key markers of my heart
`health in only 14 days. Can you?"
`health in only 14 days. Can you?”
`MUM
`!WM "1111111
`I
`' 4 '14
`
`"When we pull apart foods and
`“When we pull apart foods and
`create supplements that are
`create supplements that are
`extractions or synthetic
`extractions or synthetic
`fabrications of food, the body
`fabrications of food, the body
`becomes confused. Whole food is
`becomes confused. Whole food is
`really what the body understands.
`really what the body understands.
`
`at my results. Because I'm very
`at my results. Because I’m very
`healthy — I exercise, I eat well, I
`healthy — I exercise, I eat well, I
`don't eat sugar — I thought the
`don’t eat sugar — I thought the
`change would be imperceptible.
`change would be imperceptible.
`I was stunned at the fact that
`I was stunned at the fact that
`my triglyceride levels were much
`my triglyceride levels were much
`lower. That's extraordinary.
`lower. That’s extraordinary.
`What's really amazing is that it
`What’s really amazing is that it
`only took two weeks to see those
`only took two weeks to see those
`results. It was stunning to me.
`results. It was stunning to me.
`
`All fish oils are not created
`All ish oils are not created
`equal. What I look for in a fish
`equal. What I look for in a ish
`oil is whole food that's simple
`oil is whole food that’s simple
`and pure. I love Wholemega® -
`and pure. I love Wholemega® –
`you can look at it and see that
`you can look at it and see that
`it's pure. Wholemega is great
`it’s pure. Wholemega is great
`because it's food grade, which
`because it’s food grade, which
`means it's food.
`means it’s food.
`
`I took Wholemega for 14 days
`I took Wholemega for 14 days
`and I was completely shocked
`and I was completely shocked
`
`For over 20 years, Mariel has
`For over 20 years, Mariel has
`been pursuing her passion for
`been pursuing her passion for
`whole food, yoga, and health
`whole food, yoga, and health
`and is now seen as a voice of
`and is now seen as a voice of
`holistic and balanced health
`holistic and balanced health
`and well-being.
`and well-being.
`
`Wholemega is made from 100%
`Wholemega is made from 100%
`wild Alaskan salmon oil, which is
`wild Alaskan salmon oil, which is
`sustainable and protected. Food
`sustainable and protected. Food
`should be as close as possible to
`should be as close as possible to
`nature, because nature has the
`nature, because nature has the
`answers for our good health."
`answers for our good health.”
`
`- Mariel Hemingway
` - Mariel Hemingway
`
`TELL US YOUR RESULTS!
`
`YOU CAN WIN A
`YEAR’S SUPPLY OF
`WHOLEMEGA!†
`
`Exhibit B-2
`t See back panel for details
`† See back panel for details
`
`TELL US YOUR RESULTS!
`
`We want to hear from you! Between
`We want to hear from you! Between
`now and December 1, 2010, tell us why you
`now and December 1, 2010, tell us why you
`switched to Wholemege, your personal
`switched to Wholemega®, your personal
`experiences, and results. A panel of judges
`experiences, and results. A panel of judges
`will select 10 of the most interesting stories
`will select 10 of the most interesting stories
`and award a FREE one-year supply of
`and award a FREE one-year supply of
`Wholemega to each winner! Send your
`Wholemega to each winner! Send your
`results along with your name, address, email
`results along with your name, address, email
`address and/or phone number, to:
`address and/or phone number, to:
`tellusyourresults@newchapter.com
`tellusyourresults@newchapter.com
`or
`or
`Tell Us Your Results Entries
`Tell Us Your Results Entries
`New Chapter, Inc.
`New Chapter, Inc.
`90 Technology Drive
`90 Technology Drive
`Brattleboro, VT 05301
`Brattleboro, VT 05301
`Winners to be selected prior to December 31, 2010.
`Winners to be selected prior to December 31, 2010.
`Full details and rules can be found at
`Full details and rules can be found at
`www.wholemega.com/tellusyourresults.
`www.wholemega.com/tellusyourresults.
`
`A Commitment to Sustainability
`A Commitment to Sustainability
`Alaska maintains one of the World's most highly
`Alaska maintains one of the World’s most highly
`protected and managed natural fisheries and has
`protected and managed natural isheries and has
`outlawed salmon fish farming. By using only wild,
`outlawed salmon ish farming. By using only wild,
`sustainably caught Alaskan salmon - among the
`sustainably caught Alaskan salmon – among the
`cleanest and most pure fish stocks in the World
`cleanest and most pure ish stocks in the World
`- chemical processing to deliver purity is not
`– chemical processing to deliver purity is not
`required. Our extra virgin, low-heat process is all
`required. Our extra virgin, low-heat process is all
`that's needed to deliver Nature's whole basket of
`that’s needed to deliver Nature’s whole basket of
`vital omega fatty acids and naturally beneficial
`vital omega fatty acids and naturally beneicial
`nutrients, like Vitamin D3 and Astaxanthin.
`nutrients, like Vitamin D3 and Astaxanthin.
`
`As a FOOD GRADE oil, Wholemega' is extensively
`As a FOOD GRADE oil, Wholemega® is extensively
`tested for detectable contaminants that other fish
`tested for detectable contaminants that other ish
`oil products must "purify" or distill out.
`oil products must “purify” or distill out.
`
`New Chapter devotes 10% or more of our after-tax proits to the
`New Chapter devotes 10% or more of our after-tax profits to the
`conservation of tropical rainforests and the sacred seeds that
`conservation of tropical rainforests and the sacred seeds that
`sustain all herbal traditions. As part of our 'Purple Loves Green'
`sustain all herbal traditions. As part of our ‘Purple Loves Green’
`environmental benefits statement
`commitment, we proudly work with recycled, recyclable, and
`commitment, we proudly work with recycled, recyclable, and
`
`
`New Chapter saved the following resources using New Leaf Opaque 100 New ChapterNew Chapter
`ecologically sensitive materials. New Chapter saved the following
`ecologically sensitive materials. New Chapter saved the following
`(east) made with 100% post-consumer waste and processed chlorine free.
`resources using this 100% post-consumer waste paper:
`resources using this 100% post-consumer waste paper:
`New Leaf Opaque 100 is designated Ancient Forest Friendly, certified FSC,
`and manufactured using Biogas energy.
`
`trees
`trees
`1,200
`1,200
`fully grown
`fully grown
`
`enemy fl vd waste
`energy
`water
`water
`solid waste
`57,629
`515,355
`863
`515,354 (cid:9)
`7,629
`pounds
`gallons
`million BTUs
`BTUs (cid:9)
`gallons (cid:9)
`illi (cid:9)
`pounds
`
`F P O
`
`greenhouse
`greenhouse
`gases
`112,406
`112,406
`pounds
`pounds
`
`Calculations based on research by Environmental Defense and other members of the Paper Task Force.
`Calculations ba ed on research by Environmental Defense and other members of the aper Task Force.
`
`©2006 New Leaf Paper www.newleafpaper.com
`Manufactured by NEW CHAPTER, INC.
`Manufactured by NEW CHAPTER, INC.
`90 TECHNOLOGY DRIVE, BRATTLEBORO, VT 05301
`90 TECHNOLOGY DRIVE, BRATTLEBORO, VT 05301
`888-874-4461
`888-874-4461
`Get the Whole Truth! Sign up for our e-newsletter at: newchapter.com
`Get the Whole Truth! Sign up for our e-newsletter at: newchapter.com
`
`PR2051 01
`PR2051-01
`
` MADE IN THE USA
`MADE IN THE USA
`
`MPAYICT—T A
`
`"I improved key
`“I improved key
`markers of my
`markers of my
`heart health in
`heart health in
`only 14 days.
`only 14 days.
`Can you?"
`Can you?”
`
`- Ma rid Hemingway
` - Mariel Hemingway
`
`0 % W I L D ALASKAN SALM
`
`O
`N
`
`0
`
`1
`
`mega®
`WHOLE
`
`The Difference is Clear
`The Diference is Clear
`(-7"--) VS
`
`VS
`
`Wholem