Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA Tracking number:
`ESTTA799667
`02/06/2017
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`Name
`Entity
`Address
`
`Pop Pop Shoppe LLC
`limited liability company
`3642 Richmond Rd
`Texarkana, TX 75503
`UNITED STATES
`
`Citizenship
`
`Texas
`
`Attorney informa-
`tion
`
`Joe D. Calhoun
`CALHOUN LAW FIRM
`P.O. Box 251504
`Little Rock, AR 72225
`UNITED STATES
`Joe.Calhoun@CalhounLawFirm.com Phone:501-374-1700
`
`Applicant Information
`
`Application No
`Opposition Filing
`Date
`Applicant
`
`87162596
`02/06/2017
`
`Publication date
`Opposition Peri-
`od Ends
`
`01/24/2017
`02/23/2017
`
`DEAN, MARK ANTHONY
`905 COUNTY ROAD 2311
`TEXARKANA, TX 755036307
`UNITED STATES
`
`Goods/Services Affected by Opposition
`
`Class 030. First Use: 1973/10/17 First Use In Commerce: 1973/10/17
`All goods and services in the class are opposed, namely: Candies; Candy; Candy bark; Candy
`bars;Candy cake decorations; Candy containing alcoholic beverage content and flavor;Candy decor-
`ations for cakes; Candy for food; Candy mints; Candy necklaces; Candy sprinkles; Candy with cara-
`mel; Candy with cocoa; Candy, namely, dragées; Candy-coated apples; Candy-coated popcorn;
`Frozen confections; Frozen confections, namely, freezer bars; Frozen confections, namely, freezer
`pops; Frozen confections, namely, ices; Frozen yogurt confections; Popcorn; Arrangements of candy;
`Bakery goods and dessert items, namely, cakes, cookies, pastries, candies, and frozenconfections
`for retail and wholesale distribution and consumption on or off thepremises; Bakery goods and
`dessert items, namely, cakes, cookies, pastries, candies, and frozen confections for retail and whole-
`sale distribution and consumption on or off the premises; Brittle; Candy-coated popcorn; Caramel
`popcorn; Chocolate candies; Chocolate covered popcorn;Chocolate-coated nuts; Chocolates and
`chocolate based ready to eat candies and snacks; Comfits; Cotton candy; Energy candy; Flavor-
`coated popped popcorn; Freezable liquid for use in making frozen confections; Fruit jelly candy; Gift
`baskets containing candy; Gift baskets containing popcorn; Glazed popcorn; Gummy candies; Ice
`candies; Jawbreakers; Kettle corn; Mexican candy; Microwave popcorn; Mixes for candy making;
`Non-dairy frozen confections; Peppermint candy; Popped popcorn; Pre-processed mixes for making
`non-dairy frozen confections; Processed popcorn; Processed unpopped popcorn; Snack mix consist-
`ing primarily of crackers, pretzels and/or popped popcorn; Snack mix consisting primarily of crackers,
`pretzels and/or popped popcorn; Spumoni; Starch-based candies (ame); Sugarless candies;Sweets;
`
`

`

`Trail mix consisting primarily of pretzels, popcorn, and crackers, and also including dried fruit, chocol-
`ate, processed nuts; Turkish delight; Unpoppedpopcorn; Yogurt-covered nuts
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`No use of mark in commerce before application
`or amendment to allege use was filed
`No bona fide intent to use mark in commerce for
`identified goods or services
`Dilution by blurring
`Applicant not rightful owner of mark for identified
`goods or services
`False suggestion of a connection with persons,
`living or dead, institutions, beliefs, or national
`symbols, or brings them into contempt, or disrep-
`ute
`Fraud on the USPTO
`
`Trademark Act Section 2(d)
`Trademark Act Sections 1(a) and (c)
`
`Trademark Act Section 1(b)
`
`Trademark Act Sections 2 and 43(c)
`Trademark Act Section 1
`
`Trademark Act Section 2(a)
`
`In re Bose Corp., 580 F.3d 1240, 91 USPQ2d
`1938 (Fed. Cir. 2009)
`
`Mark Cited by Opposer as Basis for Opposition
`
`U.S. Application
`No.
`Registration Date
`
`87290312
`
`NONE
`
`Word Mark
`Design Mark
`
`ROCKET POP
`
`Application Date
`
`01/05/2017
`
`Foreign Priority
`Date
`
`NONE
`
`Description of
`Mark
`Goods/Services
`
`NONE
`
`Class 030. First use: First Use: 2016/07/31 First Use In Commerce: 2016/07/31
`Popcorn; Flavor-coated popped popcorn; Glazed popcorn; Popped popcorn;
`Processed popcorn
`
`Attachments
`
`87290312#TMSN.png( bytes )
`2017-02-06PopPopShoppeNoticeOfOpposition-Signed.pdf(364580 bytes )
`ExA 2017-01-31TessListingForAppNo.87-162,596.pdf(91677 bytes )
`ExB 2016-09-06AppNo.87-162,596-Specimen-ANNOTATED.pdf(80476 bytes )
`
`Signature
`Name
`Date
`
`/JDC3/
`Joe D. Calhoun
`02/06/2017
`
`

`

`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`In the matter of Trademark Application No. 87/162,596
`For the mark ROCKET POP
`Published in the Official Gazette on 24 January 2017
`
`
`
`Pop Pop Shoppe LLC, a
`Texas limited liability company
`3642 Richmond Road
`Texarkana, TX 75503
`Opposer
`
`
`
`
`v.
`
`Mark Anthony Dean
`Bullock Law Firm
`905 County Road 2311
`Texarkana, TX 75503-6307
`Applicant
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Opposition No. ________________
`
`
`
`
`Pop Pop Shoppe LLC, the above-identified opposer (“Opposer”), through the undersigned counsel
`
`NOTICE OF OPPOSITION
`
`of record, hereby submits this Notice of Opposition against Trademark Registration Application
`
`No. 87/162,596 (the “Application”) filed by Applicant Mark Anthony Dean (“Mr. Dean” or
`
`“Applicant”) for the trademark ROCKET POP (the “Mark”), because Opposer believes that it will
`
`be damaged by registration of the Mark, and hereby opposes the same. The grounds for opposition
`
`are as follows:
`
`1.
`
`Accompanying this Notice is a copy of the TESS listing for the Application;
`
`although the Application represents to the Trademark Office that Mr. Dean has been using the
`
`Mark in connection with over fifty (50) products since October of 1973, he has not done so and he
`
`has used Opposer’s packaged product (for its popcorn product) as Applicant’s specimen of use.
`
`
`
`1
`
`

`

`2.
`
`Opposer is the senior user of the Mark, which has inherent and acquired
`
`distinctiveness.
`
`3.
`
`Applicant’s representations to the Trademark Office in the Application evidence
`
`passing off and other forms of unfair competition and trademark infringement, in that a likelihood
`
`of confusion is created.
`
`4.
`
`The Application contains false and fraudulent representations to the Trademark
`
`Office by Applicant.
`
`5.
`
` Directly above Mr. Dean’s signature on the Application, the following
`
`representations are made:
`
`(a) the applicant is the owner of the trademark/service mark sought to be registered;
`
`(b) the applicant is using the mark in commerce on or in connection with the goods/services in
`
`the application;
`
`(c) the specimen(s) shows the mark as used on or in connection with the goods/services in the
`
`application;
`
`(d) the signatory believes that to the best of the signatory's knowledge and belief, no other
`
`persons have the right to use the mark in commerce, either in the identical form or in such
`
`near resemblance as to be likely, when used on or in connection with the goods/services of
`
`such other persons, to cause confusion or mistake, or to deceive;
`
`(e) the signatory is warned that willful false statements and the like are punishable by fine or
`
`imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and
`
`the like may jeopardize the validity of the application or any registration resulting
`
`therefrom; and
`
`(f) all statements made of his/her own knowledge are true and all statements made on
`
`
`
`2
`
`

`

`information and belief are believed to be true.
`
`
`(Underlining added.)
`
`Mr. Dean is defrauding the Trademark Office. 15 U.S.C. § 1120 provides as
`
`6.
`
`follows:
`
`Any person who shall procure registration in the Patent and Trademark Office of a mark
`by a false or fraudulent declaration or representation, oral or in writing, or by any false
`means, shall be liable in a civil action by any person injured thereby for any damages
`sustained in consequence thereof.
`
`
`
`The specimen of use uploaded with the Application is a photograph of Opposer’s
`7.
`product and packaging. Accordingly, Mr. Dean is falsely representing that he owns the Rocket Pop
`trademark; and since the specimen submitted by him includes Opposer’s company name, he is also
`falsely representing that he is Pop Pop Shoppe LLC, and/or he is deceiving customers that Opposer
`has authorized or approved Applicant’s distribution of Pop Pop Shoppe products. 15 U.S.C. §
`1125(a)(1) provides, in relevant part, as follows:
`
`
`Any person who, on or in connection with any goods or services, or any container for
`goods, uses in commerce any word, term, name, symbol, or device, or any combination
`thereof, or any false designation of origin, false or misleading description of fact, or false
`or misleading representation of fact, which—
`
`(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
`connection, or association of such person with another person, or as to the origin,
`sponsorship, or approval of his or her goods, services, or commercial activities by another
`person, …
`
`
`shall be liable in a civil action by any person who believes that he or she is or is likely to
`be damaged by such act.
`
`
`
`8.
`
`9.
`
`Mr. Dean also falsely represents himself as an attorney, on the Application.
`
`The Application falsely states that Mr. Dean has been using the mark Rocket Pop
`
`on or in connection with the following products in interstate commerce since at least 17 October
`
`1973:
`
`1. Candies; Candy; Candy bark; Candy bars; Candy cake decorations;
`2. Candy containing alcoholic beverage content and flavor;
`3. Candy decorations for cakes;
`4. Candy for food;
`
`
`
`3
`
`

`

`5. Candy mints;
`6. Candy necklaces;
`7. Candy sprinkles;
`8. Candy with caramel;
`9. Candy with cocoa;
`10. Candy, namely, dragées;
`11. Candy-coated apples;
`12. Candy-coated popcorn;
`13. Frozen confections;
`14. Frozen confections, namely, freezer bars;
`15. Frozen confections, namely, freezer pops;
`16. Frozen confections, namely, ices;
`17. Frozen yogurt confections;
`18. Popcorn;
`19. Arrangements of candy;
`20. Bakery goods and dessert items, namely, cakes, cookies, pastries, candies, and
`frozen confections for retail and wholesale distribution and consumption on or
`off the premises;
`21. Bakery goods and dessert items, namely, cakes, cookies, pastries, candies, and
`frozen confections for retail and wholesale distribution and consumption on or
`off the premises;
`22. Brittle;
`23. Candy-coated popcorn;
`24. Caramel popcorn;
`25. Chocolate candies;
`26. Chocolate covered popcorn;
`27. Chocolate-coated nuts;
`28. Chocolates and chocolate based ready to eat candies and snacks;
`29. Comfits; Cotton candy;
`30. Energy candy;
`31. Flavor-coated popped popcorn;
`32. Freezable liquid for use in making frozen confections;
`33. Fruit jelly candy;
`34. Gift baskets containing candy;
`35. Gift baskets containing popcorn;
`36. Glazed popcorn;
`37. Gummy candies;
`38. Ice candies;
`39. Jawbreakers;
`40. Kettle corn;
`41. Mexican candy;
`42. Microwave popcorn;
`43. Mixes for candy making;
`44. Non-dairy frozen confections;
`45. Peppermint candy;
`46. Popped popcorn;
`
`
`
`4
`
`

`

`47. Pre-processed mixes for making non-dairy frozen confections;
`48. Processed popcorn;
`49. Processed unpopped popcorn;
`50. Snack mix consisting primarily of crackers, pretzels and/or popped popcorn;
`51. Snack mix consisting primarily of crackers, pretzels and/or popped popcorn;
`52. Spumoni;
`53. Starch-based candies;
`54. Sugarless candies;
`55. Sweets;
`56. Trail mix consisting primarily of pretzels, popcorn, and crackers, and also
`including dried fruit, chocolate, processed nuts;
`57. Turkish delight;
`58. Unpopped popcorn; and
`59. Yogurt-covered nuts.
`
`
`10. Mr. Dean has not used the mark in connection with any of those product and, since
`
`Applicant’s specimen of use is Opposer’s packaged product, any use by Applicant based thereon
`
`must have occurred after Opposer began using the mark in commerce.
`
`11.
`
`Opposer has pending U.S. Trademark Registration Application No. 87/290,312 for
`
`the mark ROCKET POP (in standard characters), used in connection with popcorn food products;
`
`the date of first use in commerce is at least as early as 31 July 2016 (before the filing date of
`
`Applicant’s Application.
`
`12.
`
` A copy of the specimen of use for Opposer’s application accompanies this Notice
`
`of Opposition, and is identical to the specimen fraudulently submitted by Applicant for the
`
`Application.
`
`13.
`
`Opposer will be damaged by Applicant’s registration of the mark, in that Opposer’s
`
`own trademark registration application will be denied and Opposer will lose valuable expansion
`
`rights that accompany federal registration; moreover, the granting of Applicant’s Application will
`
`facilitate Applicant’s continued violation of federal statutes, as set forth hereinabove.
`
`
`
`5
`
`

`

`14.
`
`Opposer urges the Trademark Trial and Appeal Board to grant this opposition,
`
`because Opposer is the senior user of the mark and because Applicant has committed fraud on the
`
`Trademark Office as set forth hereinabove.
`
`I
`
`Respectfully submitted.
`
`CALHOUN LAW FIRM
`P.O. Box 251504
`
`Little Rock, AR 72225
`
`5 01 ~3 74-1700 Telephone
`501 ~80l ~1 193 Telefax
`
`Joe.Calhoun@CalhounLawFirm.com
`
`Ai?§_Me<%/"—‘
`
`Calhoun, attorneys for Opposer
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and complete copy of the foregoing Notice of Opposition has been
`served on MARK ANTHONY DEAN by mailing said copy on 6 February 2017, Via First Class
`Mail, postage prepaid, to the address listed on the Application, namely:
`
`Mark Anthony Dean
`Bullock Law Firm
`
`905 County Road 2311
`Texarkana, TX 75503-6307
`
`/ Joe D. Calhoun
`CALHOUN LAW FIRM
`
`P.O. Box 251504
`
`Little Rock, AR 72225
`
`

`

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`ROCKET POP
`
`7al crd Ma rk ROCKET POP
`
`Goods and (cid:9)IC OW. US 046. G& S:Cancliim ; Candy, Candy butt ; Candy bars: Candy [Eke deorrations Candy contain ing alcoholic beverage conterrt and flower ; Candy nem:rations fff co mss;Candyferfood;Candymints;Candynecklaces;Candysprinkles;CandywtthCerarrel: Candy
`Services (cid:9)with CD cca; Candy namely dreg ea ;Candy- coated applm ; Candy-coated popcorn; Frozen confections; Frozen confections, namely freezer bus; Frozen confections, nErnely freezer pops ; Frozen confections , namely jam. ; Frozen yogurt confectbre ; Popcorn; Arrangements of
`tan* Bak-erygoods and -dessert darns, namely cakes coolies pastries cand ies ; and tozen confections fa retail and wholes ale d ti buton and cons u motion on or off the premises; Barerygoods and des sert items namely. cakes (cid:9), pas 11.1 candies , and tozen
`confections fix retail and wholesale d s ti button and consumption an or off the premises ; Bettie Candy-coated popper n; Cararnel popcorn; Chocolate candies ; Chocolate cowered popcorn; Chocolate-coated nuts ; Ch000lates and chocolate based readyto eat candies and
`snacks ;Comfits ; Cotton candy Energy candy Flavor-coated popped popcorn; Freezable I in uid ix us e in mating frozen conieclions; Fru rt jelly candy Grft baskets containing candy Gift baskets containing popcorn; Glazed popca n; Gu rnmy candi ; be can-dim; Jaw treakers ;
`Kettle corn; hieldcan candy Microwave popcorn; %as for candy rnak ing; Non-daryiozen coniectbns ; Peppermint candy, Popped popcorn; Pre-processed rnbam for making non-dairyfrozen confections; Processed popcorn: Processed to pooped popcorn; Snack mix
`consisting primal ly of crackers, pretzels andkx popped popcorn; Srad moceonsisting primal ly of crackers , pretzels a.ndti popped popcorn; Spumoni; Starch-based candies {erne); Sugarless oandi.e. ; SPAVaEtS Trail ma cons bting prtrnarityof pretzels, popcorn, and
`crackers, and also in cludi ng dried i uit chop:late processed nuts ; Turk is h delight Un popped popcern; Yog tit-co/wed nuts. FIRST USE:19731017. FIRST USE IN CC:krvERCE 19731017
`
`Standard
`Characters
`Claimed
`
`Mark
`Drawing (cid:9)(4) STANDARD CHARACTER MARK
`Cod e
`
`Serial
`Number
`
`871E256
`
`Fling Date (cid:9)September 7, 2016
`
`Current
`Basis
`
`1A
`
`Original Fling
`Basis
`
`1A
`
`Published for
`Opposition
`
`uary24, 2017
`
`Owner (cid:9)PLICANT) DEM. MAR KANTRONY D BA FLAVORS AN D FAvORS INDIVIDUAL UNITED STATES 9D5 COUN TY ROAD 2311 TEKAR KAMA TE,AS 75503E307
`
`Attorney of
`Raoord
`
`Mal Anthony Dean
`
`Type of Mark TRADEMARK
`
`Reg ister (cid:9)PRINCIPAL
`
`Lhadjead
`Indicator
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`LIVE
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`EXHIBIT B
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`FunFetti
`10 flavors
`in I
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