Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA963143
`
`Filing date:
`
`03/27/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91237493
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Ready Nutrition, LLC
`
`GENNA DELANY
`KROGH & DECKER LLP
`555 CAPITOL MALL, SUITE 700
`SACRAMENTO, CA 95814
`UNITED STATES
`derekdecker@kroghdecker.com, gennadelany@kroghdecker.com
`916-498-9000
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Testimony For Plaintiff
`
`Julia Martell
`
`juliamartell@kroghdecker.com, ryanwright@kroghdecker.com, derekdeck-
`er@kroghdecker.com, inessakondrya@kroghdecker.com
`
`/s/ Julia Martell
`
`03/27/2019
`
`Testimony Declaration of Margo Fargee.pdf(5713415 bytes )
`Testimony Declaration of Margo Fargee Part 2.pdf(709935 bytes )
`Exhibits 1 through 3.pdf(4694187 bytes )
`Exhibits 4 through 6.pdf(5080765 bytes )
`Exhibits 7 through 9.pdf(3700417 bytes )
`Exhibit 10 Part 1.pdf(3681074 bytes )
`Exhibit 10 Part 2.pdf(3351232 bytes )
`Exhibit 10 Part 3.pdf(3532934 bytes )
`Exhibit 11 through 14.pdf(5353271 bytes )
`Exhibit 15.pdf(2130685 bytes )
`Exhibit 16 and 17.pdf(4844266 bytes )
`Exhibit 18 and 19.pdf(4371516 bytes )
`Exhibit 20.pdf(3756344 bytes )
`Exhibit 21 through 24.pdf(3588347 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA963143
`
`Filing date:
`
`03/27/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91237493
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Ready Nutrition, LLC
`
`GENNA DELANY
`KROGH & DECKER LLP
`555 CAPITOL MALL, SUITE 700
`SACRAMENTO, CA 95814
`UNITED STATES
`derekdecker@kroghdecker.com, gennadelany@kroghdecker.com
`916-498-9000
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Testimony For Plaintiff
`
`Julia Martell
`
`juliamartell@kroghdecker.com, ryanwright@kroghdecker.com, derekdeck-
`er@kroghdecker.com, inessakondrya@kroghdecker.com
`
`/s/ Julia Martell
`
`03/27/2019
`
`Testimony Declaration of Margo Fargee.pdf(5713415 bytes )
`Testimony Declaration of Margo Fargee Part 2.pdf(709935 bytes )
`Exhibits 1 through 3.pdf(4694187 bytes )
`Exhibits 4 through 6.pdf(5080765 bytes )
`Exhibits 7 through 9.pdf(3700417 bytes )
`Exhibit 10 Part 1.pdf(3681074 bytes )
`Exhibit 10 Part 2.pdf(3351232 bytes )
`Exhibit 10 Part 3.pdf(3532934 bytes )
`Exhibit 11 through 14.pdf(5353271 bytes )
`Exhibit 15.pdf(2130685 bytes )
`Exhibit 16 and 17.pdf(4844266 bytes )
`Exhibit 18 and 19.pdf(4371516 bytes )
`Exhibit 20.pdf(3756344 bytes )
`Exhibit 21 through 24.pdf(3588347 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding No.: 91237493
`
`I I I I I I
`
`)
`
`) I I I I I
`
`READY NUTRITION, LLC, a California limited
`
`liability company
`
`Opposer,
`v.
`
`COME READY FOODS, LLC, a Pennsylvania
`
`limited liability company,
`
`Applicant.
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`I, Marco Fargee, declare under penalty of perjury as follows:
`
`1.
`
`I am currently the Operations Manager at Opposer READY NUTRITION, LLC
`
`("Opposer" or ”Ready Nutrition, LLC”).
`
`| submit this declaration to provide relevant
`
`information regarding Opposer‘s use and enforcement of the READY NUTRITION mark
`
`in United States commerce and the recognition of the READY NUTRITION mark among
`
`U.S. consumers. I also provide herein relevant information concerning Applicant Come
`
`Ready Foods, LLC’s (”Applicant” or "Come Ready Foods, LLC”) READY NUTRITION mark
`
`that is the subject of Application No. 87382512 and this proceeding
`
`2.
`
`The facts set forth herein are based on my personal knowledge and on information
`
`contained in Opposer's bUSiness records (hardcopy and electronic) regularly maintained
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`
`
`by Opposer in the normal course of business and to which I have regular access in the
`
`course of my job. Unless otherwise noted, the exhibits to which I refer, and which are
`
`attached to this declaration, are copies of documents and other materials from
`
`Opposer's business records kept in the ordinary course of business as well as information
`
`from public databases.
`
`[. Job Responsibilities, Experience, and Education.
`
`3.
`
`In my role with Opposer, which I have held since 2015, my responsibilities include,
`
`but are not limited to: managing the website, managing the newsletters, distribution of
`
`content, product development, and branding, including decisions involving or relating to
`
`use ofthe READY NUTRITION mark.
`
`I regularly communicate with Tisha Holy, the owner
`
`and sole Member of Ready Nutrition, LLC, on all matters relating to Opposer and its
`
`business, and Ms. Holy is also my wife.
`
`4.
`
`Prior to my current role,
`
`I was fulfilling the same role for the same owner of the
`
`READY NUTRITION mark, Tisha Holy, but under a sole proprietorship in Texas, Tisha Holy
`
`dba Ready Nutrition, from 2009 to 2015, where my responsibilities included, but were
`
`not limited to, managing the website, managing the newsletters, distribution of content,
`
`product development, and branding, including decisions involving or relating to use of
`
`the READY NUTRITION mark. In addition to my role at Ready Nutrition, LLC, I am involved
`
`in an ownership and/or management role for other companies.
`
`5.
`
`I have substantial experience in information technology, computing, social media,
`
`website development, internet marketing, Google Analytics, and other areas relevant to
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`2
`
`
`
`Opposer's business, and this proceeding. Specifically,
`
`I have five years experience
`
`working in information and communications technology,
`
`including experience in
`
`information technology management at AT&T and technical
`
`troubleshooting and
`
`management at Excel Communications and Allegiance Telecom as a Senior Manager.
`
`At AT&T I was responsible for managing and maintaining system hardware and
`
`software infrastructure, including PC maintenance, server maintenance, Linux operating
`
`system backbone, and customer service software. At Allegiance Telecom I was a Senior
`
`Manager for over 75 technicians in the network operations group and engaged in basic
`
`to advanced level network troubleshooting and monitoring of computerized phone
`
`networks. This required a detailed knowledge of reporting and analytics.
`
`I have successfully built, deployed and regularly maintained approximately 15
`
`websites for over 15 years, with those sites delivering tens of millions of user pageviews,
`
`complex information management, and sales of physical and digital product. This
`
`experience includes: the deployment of custom HTML and CSS websites, integration of
`
`website software applications including WordPress and hundreds of associated plugins
`
`and extensions to customize the sites, project management of custom built applications
`
`that include reporting systems, order processing systems, and unique software solutions
`
`to meet online customer needs. I have built and deployed multiple online storefronts
`
`utilizing Volusion, WooCommerce, and custom-built order processing applications.
`
`l have approximately 15 years experience with the integration, use, and analysis of
`
`website analytics software, including Google Analytics, to determine user engagement,
`
`page views, web site popularity on deployed websites,
`
`improving user experience,
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`
`
`engagement and brand visibility.
`
`I have approximately seven years experience using and deploying social media
`
`integration for websites and businesses,
`
`including promotion and analysis of social
`
`media engagement for Facebook and Twitter. I also have experience in search engine
`
`optimization and content management to generate brand visibility on search engines
`
`such as Google, Yahoo, and Bing. I have developed and crafted multiple business plans
`
`and successful brand strategies for businesses doing their primary sales over the
`
`internet. I have managed teams of content developers for websites, including written
`
`articles and videos, as well as project management of technicians and web developers.
`
`II. Opposer Ready Nutrition, LLC's Business and General History of the READY NUTRITION Mark
`
`10.
`
`Opposer is
`
`in the business of providing and promoting informational materials
`
`pertinent to nutrition, healthy-living, durable foods, food storage, and other topics
`
`emphasizing a healthy and prepared lifestyle under the brand ”Ready Nutrition." Opposer
`
`is also in the business of selling products that promote nutrition, health, and wellness, as
`
`well as products relating to durable foods, food storage, and preparation for emergencies.
`
`11.
`
`Opposer's predecessor—in—interest, Tisha Holy dba Ready Nutrition, a Texas sole
`
`proprietorship, commenced use of the READY NUTRITION mark in connection with the
`
`website readynutrition.com and its services and products in July of 2009, a preparedness
`
`website which provided and promoted informational materials pertinent to nutrition,
`
`healthy—living, durable foods, food storage, and other preparedness topics emphasizing a
`
`healthy and prepared lifestyle. Attached hereto as Exhibit 1 is a true and correct copy of
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`4
`
`
`
`a Screen shot of the home page of readynutrition.com on December 25, 2009, which I
`
`accessed from Opposer’s electronic records.
`
`12.
`
`Opposer's predecessor—in—interest, Tisha Holy dba Ready Nutrition selected the
`
`READY NUTRITION mark because that mark represented the vision and end-goal of what
`
`Tisha Holy was trying to accomplish with a preparedness website which provided and
`
`promoted informational materials pertinent to nutrition, healthy-living, durable foods,
`
`food storage, and other preparedness topics emphasizing a healthy and prepared
`
`lifestyle. The mark READY NUTRTITION encompasses both the values of preparedness
`
`and health which are fundamental principles at
`
`the heart of Opposer’s READY
`
`NUTRITION branded line of products.
`
`13.
`
`In conjunction with the ”Ready Nutrition” brand Opposer also sells healthy food
`
`products, including a ”Ready Nutrition Vegetable Garden in a Can" and a ”Seed Starter
`
`Pack.” The former is a mix of 25 different healthy non—GIVIO seeds, and offers everything
`
`a family or an individual would need to start and grow their own healthy, organic
`
`vegetable garden. A true and correct copy of a description of the Ready Nutrition
`
`Vegetable Garden in a Can as shown on Opposer’s website ’readynutrition.com’ is
`
`attached hereto as Exhibit 2. The latter is a healthy, organic pack of seeds for a vegetable
`
`garden.
`
`14.
`
`The Ready Nutrition Vegetable Garden in a Can has been used in commerce since
`
`at IeastJune 8, 2015, when Opposer ran a contest on its readynutrition.com website and
`
`social media accounts for the public. Two Ready Nutrition Vegetable Garden in a Can
`
`products were shipped to lucky winners in the United States. Attached as Exhibit 3 is a
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`5
`
`
`
`true and correct copy of the original contest page as viewed using archive.org (for
`
`September 2015 the closest date), as well as the page as saved on Opposer’s website.
`
`Attached as Exhibit 4 is a true and correct copy of Opposer’s Facebook page post for the
`
`contest, as it looked in June 2015. The Ready Nutrition Vegetable Garden in a Can were
`
`shipped to the two winners in or around September 8, 2015.
`
`15.
`
`Ready Nutrition continues to offer and sell the Ready Nutrition Vegetable Garden
`
`in a Can on its ”readynutrition.com” and ”readygardens.com” websites. See Exhibit 2. In
`
`addition, Opposer offers multiple Ready Nutrition branded healthy food products
`
`including "The Ready Nutrition Little Starters Garden Kit,” and various healthy vegetable
`
`packs including sugar pumpkins, and bloomsdale spinach. True and correct copies of
`
`these product descriptions
`
`as
`
`they appear
`
`on
`
`the
`
`readynutritioncom and
`
`readygardnes.com websites is attached hereto as Exhibit 5. In line with Opposer’s focus
`
`on healthy, organic foods the descriptions of these products again emphasize the
`
`nutritional content, vitamins, minerals, and other health aspects of the products.
`
`16.
`
`Opposer Ready Nutrition, LLC also sells to the public healthy tea blends (for hot or
`
`iced tea). In line with Opposer’s focus on health and nutrition, these products include a
`
`"joint relief tea blend” with anti-inflammatory ingredients, a “deepest sleep" tea blend
`
`that helps people relax and fall asleep, and an "immune support” tea blend for cold and
`
`flu season. Opposer also sells various natural tinctures designed to support people’s
`
`health. These products include a tincture forjoint support, a tincture for reducing stress,
`
`a tincture for immune system support for cold and flu season, and a tincture for mood
`
`support. Attached as Exhibit 6 is a true and correct copy of website descriptions for
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`6
`
`
`
`these products. The descriptions focus on specific healthy ingredients thought to
`
`support the purpose of the product, which appeals to consumers looking for health and
`
`wellness products.
`
`17. Attached as Exhibit 6 is a true and correct copy of website descriptions for these
`
`products. The descriptions focus on specific healthy ingredients thought to support the
`
`purpose of the product, which appeals to consumers looking for health and wellness
`
`products.
`
`18.
`
`Since the launch of the READY NUTRITION brand in 2009, Opposer, directly and
`
`through its predecessor, has been continuously using the READY NUTRITION mark in
`
`United States commerce in connection with providing and promoting informational
`
`materials pertinent to nutrition, healthy—living, durable foods, food storage, and other
`
`preparedness topics emphasizing a healthy and prepared lifestyle. In addition, Opposer
`
`offers, and has offered, multiple healthy food products including the ones described
`
`above, as well as third party products focusing on health living and healthy meals. There
`
`is an entire section on Opposer’s readynutrition.com website dealing specifically with
`
`food, with webpages titled: Yummy Recipes; Cooking; Food Storage; Canning and
`
`Preservation; Dehydrating; and Fermenting. See readynutrition.com website printout, a
`
`true and correct copy of which is attached hereto as Exhibit 7.
`
`19.
`
`Opposer also creates and maintains a wealth of information and articles on
`
`readynutrition.com for natural living, wellness, and herbs, vitamins, and supplements
`
`for health. Examples of information include the most popular herbs for natural medicine,
`
`natural products to enhance your immune system, the health benefits of turmeric, the
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`
`
`benefits of meditation and exercise for depression, and tips for
`
`running. See
`
`readynutrition.com website printouts, a true and correct copy of which is attached
`
`hereto as Exhibit 8.
`
`20.
`
`Since in or around April 2013, Opposer has also sold a healthy living and disaster
`
`preparedness cookbook for sale through readynutrition.com and amazon.com. The
`
`cookbook is called "The Prepper’s Cookbook,” and has over 300 healthy recipes for
`
`meals such as black bean soup, Asian ramen salad, and fish tacos. The purpose of the
`
`book is to provide food recipes that turn emergency food into nutritious and delicious
`
`meals. There is also information on freeze—dried, dehydrated, and preserved foods.
`
`Attached as Exhibit 9 is a true and correct copy of the Prepper’s Cookbook description.
`
`The cookbook has 393 reviews on Amazon, with four and a half stars in total reviews. It
`
`has sold more than 25,000 copies.
`
`21.
`
`Opposer has focused on healthy living, emergency preparedness, and healthy food
`
`preparation and storage consistently since 2009. Screenshots from Opposer's
`
`readynutrition.com website on or about December 21, 2013, July 1, 2014, December 29,
`
`2014, and May 23, 2015 show that there were articles concerning being nutrition ready
`
`with superfoods, and sugar and detoxification; among other related topics, as well as
`
`many healthy food recipes such as a recipe for Gluten—Free Coconutty Almond Chocolate
`
`Chip Protein Cookies, which very closely resembles a gluten free chocolate protein cookie
`
`being sold by Applicant. See archive.org records, a true and correct copy of which is
`
`attached hereto as Exhibit 10. Archive.org is a web archive that displays websites from
`
`the past, as captured at
`
`the time by archive.org 'web crawlers.’ Archiveorg is
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`
`
`maintained by the Internet Archive, a non—profit digital library. Based on my experience
`
`with websites and computing, archive.org is a reliable source of viewing how a website
`
`looked on a specific date, assuming the archive captured a view of the website on that
`
`date.
`
`It is widely known by computer programmers and website developers as being the
`
`only way to View what websites look like in the past apart from actual saved electronic
`
`records.
`
`22.
`
`Opposer has grown the READY NUTRITION brand by expanding to own and affiliate
`
`the READY NUTRITION Branded line of products with other websites such as:
`
`www.5HTFplan.com;
`
`www.ReadyGardens.com;
`
`Zerohedge.com;
`
`MotherEarthNews.com; and LewRocl<well.c0m. Opposer has also been highly visible on
`
`social media sites such as: Twitter; Facebook; and Pinterest.
`
`23.
`
`In October 2015, Tisha Holy dba Ready Nutrition formed a California limited liability
`
`company and transferred and assigned all assets and property of her business 'Ready
`
`Nutrition’ to the LLC, Ready Nutrition, LLC (Opposer). This included all goodwill and any
`
`rights in the READY NUTRITION mark. A clear linear relationship exists between Tisha
`
`Holy dba Ready Nutrition, a Texas sole proprietorship, and Ready Nutrition, LLC, a
`
`California Limited Liability Company, and the latter has simply continued the entirety of
`
`the business and operations of the former (including operation of the website) up to
`
`present. Tisha Holy was the sole owner of the READY NUTRITION mark under her sole
`
`proprietorship, and Tisha Holy is, and always has been, the sole member of Ready
`
`Nutrition, LLC. Attached hereto as Exhibit 11 are true and correct copies of the Assumed
`
`Name Certificate from Brazoria County, Texas, when Ms. Holy was doing business as
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`
`
`'Ready Nutrition' as well as a Bill of Sale and Assignment Agreement between “Ready
`
`Nutrition‘ and Ready Nutrition, LLC.
`
`III. Success of the READY NUTRITION Brand
`
`24.
`
`Opposer has consistently advertised its READY NUTRITION branded line of products
`
`and articles through its website at
`
`readynutrition.com (the "Website"), which
`
`prominently displays the READY NUTRITION mark at the top of every page. Attached
`
`hereto as Exhibit 12 are true and correct copies of webpages from the Website from 2009,
`
`2011, 2014, and 2019. The Website has generated more than 22.7 million page-Views
`
`since its inception. The Website has attracted more than 9.5 million users. Attached
`
`hereto as Exhibit 13 are true and correct copies of statistics from Google Analytics
`
`showing the Website's internet traffic since 2009. I ran these reports on Google Analytics
`
`using an account owned by Opposer. Google Analytics is a reliable web analytics service
`
`offered by Google that tracks and reports website traffic, including traffic to specific
`
`sites.
`
`25.
`
`26.
`
`Opposer’s READY NUTRITION brand is appreciated by third party sites whom
`
`distribute content online under the Ready Nutrition brand with Opposer’s permission.
`
`1) Zerohedge.com; 2) MotherEarthNews.com; and 3) LewRockwell.com.
`
`Google analytics indicates that from 2009 through July of 2018 the READY
`
`NUTRITION Website and www.5HTFplan.com, a READY NUTRITION brand affiliated site,
`
`generated more than 100 million user sessions with more than 39 million new users
`
`Visiting the Website. ReadyNutrition.com and SHFTpIan.com have generated over 200
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`10
`
`
`
`million page views since 2009. Attached hereto as Exhibit 13 are true and correct copies
`
`of statistics from Google Analytics showing the Website's internet traffic since 2009.
`
`Attached hereto as Exhibit 14 are true and correct copies of statistics from Google
`
`Analytics showing www.5HTFplan.com ’5 internet traffic since 2009. I ran these reports
`
`on Google Analytics using an account owned by Opposer.
`
`In my experience, Google
`
`Analytics is one the primary ways to determine internet traffic for websites.
`
`27.
`
`A significant portion ofthe page views generated by the READYNUTRITION branded
`
`line of products include topics that involve health and food. Six of the top ten most
`
`popular pages/articles on the Website pertain to food. They are: 1) 10 Foods you Should
`
`Not Feed Your Chicken; 2) 11 Emergency Food Items That Can Last a Lifetime; 3) 25 Must
`
`Have Survival Foods: Put Them in Your Pantry Now; 4) Survival Food Series: 3 Ways to
`
`naturally Make Yeast; 5) Vacuum Sealing Could Be Hazardous to Your Health; 6) 50
`
`Things You Should Stop Buying and Start Making. See Exhibit 13.
`
`28.
`
`Today, Opposer's Website and affiliate sites under the READY NUTRITION mark are
`
`still providing and promoting informational materials pertinent to nutrition, healthy—
`
`Iiving, durable foods, food storage, and other preparedness topics emphasizing a healthy
`
`and prepared lifestyle throughout the United States. Since 2009, the readynutrition.com
`
`website belonging to Opposer has published in excess of 2,800 articles related to the
`
`above subjects. Opposer has been providing and promoting informational materials
`
`pertinent
`
`to nutrition, healthy-living, durable foods,
`
`food storage,
`
`and other
`
`preparedness topics emphasizing a healthy and prepared lifestyle throughout the United
`
`States since well before the March 23, 2017 filing date of Applicant.
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`11
`
`
`
`29.
`
`As of 2009, Opposer's READY NUTRITION branded line of products under the
`
`READY NUTRITION mark have been available over the internet. This trade channel is an
`
`ordinary trade channel for providing and promoting informational materials pertinent to
`
`nutrition, healthy—living, durable foods, food storage, and other preparedness topics
`
`emphasizing a healthy and prepared lifestyle, which is very similar to the focus of the
`
`goods identified in the Applicant's application asserted in this proceeding.
`
`30.
`
`Opposer's Ready Nutrition branded line of products under the READY NUTRITION
`
`mark are targeted towards and purchased by consumers of all ages and demographics,
`
`but specifically by consumers who are interested in nutrition, healthy—living, durable
`
`foods, food storage, and other preparedness topics emphasizing a healthy and prepared
`
`lifestyle. These consumers are the typical consumers of health food products as well as
`
`consumers who purchase for preparedness, fitness, and shelf—life, such as the goods
`
`identified in the Applicant’s application asserted in this proceeding.
`
`31.
`
`Opposer's Ready Nutrition branded line of products under the READY NUTRITION
`
`mark typically range in price from $5.00 to roughly $49.95. This price range is typical of
`
`healthy durable foods such asthe goods identified in the Applicant’s application asserted
`
`in this proceeding. Because Opposer's as well as Applicant’s READY NUTRITION branded
`
`line of products are sold at a low cost,
`
`it is my experience consumers will generally
`
`purchase them without particular deliberation or care, and often purchase them on
`
`impulse.
`
`32.
`
`Opposer generated over 2.8 million dollars
`
`in revenue under
`
`the READY
`
`NUTRTITION brand from 2009 through 2017. From 2015 until 2017, Opposer generated
`
`TESTIMONY DECLARATION OF MARGO FARGEE
`
`12
`
`
`
`over 1.7 million dollars in revenue under the READY NUTRTITION brand. Attached hereto
`
`as Exhibit 15 are true and correct copies of Opposer’s 2009 tax statement and profit and
`
`loss statements since 2010.
`
`33.
`
`Opposer engages in extensive promotional activities under the READY NUTRITION
`
`mark for the Ready Nutrition branded line of products, which provide and promote
`
`informational materials pertinent to nutrition, healthy-living, durable foods,
`
`food
`
`storage, and other preparedness topics emphasizing a healthy and prepared lifestyle.
`
`The Ready Nutrition branded line of products are also promoted on third party websites
`
`such as zerohedgecom, MotherEarthNews.com, and LewRockwell.com. Attached
`
`hereto as Exhibit 16 are true and correct copies of screen shots from the last several
`
`years of READY NUTRTION branded line of products being promoted on third party sites.
`
`34.
`
`Since 2009, Opposer has spent more than 1.8 million dollars ($1,800,000.00)
`
`developing,
`
`advertising,
`
`and promoting its
`
`the READY NUTRITION mark. All
`
`advertisements and promotions centered around the promotion of the READY
`
`NUTRITION brand of products and promotions prominently featured the READY
`
`NUTRITION mark. See Exhibit 15.
`
`35.
`
`Over the years, Opposer's READY NUTRITION Brand has garnered unsolicited media
`
`coverage, including multiple interviews on Fox 26 in Houston, Texas in or around 2011,
`
`titled ”Long Term Food Storage Basics — How to Pack Rice, Wheat, beans and Dry Goods"
`
`and ”Tess Pennington of Ready Nutrition Discusses Price Inflation and Preparedness.”
`
`”Tess Pennington” is a pseudonym Tisha Holy uses to protect her privacy online.
`
`Attached hereto as Exhibit 17 is a true and correct copy ofa screenshot from the Website
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`TESTIMONY DECLARATION OF MARGO FARGEE
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`13
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`
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`of the Fox 26 interviews being shown, and linked to, on the Website’s ”Ready Nutrition
`
`in the Media” webpage.
`
`36.
`
`Opposer has had been featured by news outlets such as The Guardian, Mother Earth
`
`News, Prepper Website.com, and by famous internet personalities such as Lew
`
`Rockwell. Attached hereto as Exhibit 18 are true and correct copies of printouts off the
`
`respective websites ofthe articles from the Prepperwebsite.com and TheGuardian.com,
`
`as well as a screenshot of the Lew Rockwell interview being shown, and linked to, on the
`
`Website’s "Ready Nutrition in the Media” webpage.
`
`37.
`
`Opposer also uses social media to advertise the READY NUTRITION branded line of
`
`products under the READY NUTRITION mark, including pages on Facebook, Pinterest,
`
`and Twitter. Between January 1, 2015 and July 3, 2018 social media generated 1,007,398
`
`visitor sessions to the Website with 1.26 million page-views. See Exhibit 13.
`
`38.
`
`Attached as Exhibit 19 are true and correct copies of Opposer’s Pinterest page,
`
`showing the focus on health living, food preparation and storage, and natural living.
`
`Attached as Exhibit 20 are true and correct copies of Opposer’s Facebook page (11,941
`
`followers) showing the focus on healthy living, food storage, preparedness, and
`
`wellness. There are voluminous articles over the years on food, cooking, health, exercise,
`
`and natural remedies. See Exhibits 7, 8.
`
`39.
`
`Applicant also provides information and articles as part of its brand. As an example
`
`of the similarity between the social media accounts and websites of Opposer and
`
`Applicant, attached as Exhibit 21 are true and correct copies of Opposer’s articles on
`
`exercise and music (linked from Opposer’s Facebook page) compared to Applicant’s
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`TESTIMONY DECLARATION OF MARGO FARGEE
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`14
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`
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`article on exercise and energy (linked from Applicant’s website ’readyismade.com’).
`
`40.
`
`According to Alexa.com, a site that ranks other websites popularity, the Website is
`
`ranked 226,742 globally and 52,098 in the United States. Whereas, Applicant's website
`
`is ranked 10,660,323 world—wide and does not have a U.S. ranking provided. Attached
`
`hereto as Exhibit 22 are true and correct copies of reports from Alexa.com pertaining to
`
`both Opposer’s and Applicant’s sites. Based on my experience, alexa.com is a reliable
`
`method of determining the popularity of websites and is widely used in the website
`
`development and computer programming industry.
`
`41.
`
`The popularity of Opposer’s brand and website has great value. For example, in
`
`February 2018, Opposer’s website saw approximately 168,000 pageviews from users.
`
`The going rate for an online targeted click is approximately five to 10 cents. At a rate of
`
`10 cents per click, one would have to pay approximately $16,800 to drive that many page
`
`views with advertising. In order to build up Opposer’s Ready Nutrition brand to this level
`
`it has taken approximately 10 years of hard work, time, resources, and continual
`
`refinement of the message and brand. As a result, this allows Opposer to have a ready
`
`and receptive market for its products,
`
`including its health and wellness products.
`
`Advertisers are also willing to pay to partner with Op poser to feature their products. See
`
`Exhibit 13.
`
`42.
`
`All of the foregoing sales, advertising, social media, internet presence, and publicity
`
`ofREADY NUTRITION and its branded line of products under the READY NUTRITION mark
`
`have resulted in strong consumer recognition of the READY NUTRITION brand in the
`
`United States.
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`TESTIMONY DECLARATION OF MARGO FARGEE
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`15
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`
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`43.
`
`Because of the overwhelming success and appeal ofthe READY NUTRITION branded
`
`line of products, and Opposer's exclusive use of the READY NUTRITION mark in
`
`connection with the READY NUTRITION branded line of products, the READY NUTRITION
`
`mark has acquired enormous value and become extremely well known to the public as
`
`identifying and distinguishing Opposer exclusively and uniquely as the source of READY
`
`NUTRITION branded line of information and products, under the mark. Thus, in addition
`
`to its inherent distinctiveness, the READY NUTRITION mark has acquired distinctiveness
`
`in the minds of consumers.
`
`44.
`
`In addition to the current brand, information, and products offered by Opposer,
`
`Opposer originally intended to expand the Ready Nutrition brand into the following
`
`areas and potentially more: vitamins, herbs, pre—packaged foodstuffs (wheat, beans,
`
`pasta, etc.), dried and dehydrated foodstuffs (meat,
`
`textured vegetable protein,
`
`vegetables, fruits, etc), and essential oils. However, due to Applicant’s use of the mark
`
`we are greatly concerned about the overlap in products between the two companies.
`
`For example, Applicant previously sold dehydrated apple slices under the Ready
`
`Nutrition name, and thus if Opposer did the same there would be two nearly identical
`
`products both sold under ’Ready Nutrition’. Applicant’s use of the name that Ready
`
`Nutrition, LLC has been doing business under for years threatens our ability to expand
`
`our business and creates a real possibility of consumer confusion, especially given that
`
`both companies operate heavily from the internet. In addition, we are concerned about
`
`the possibility of trademark infringement actions by Applicant if we continue to expand
`
`our product line.
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`TESTIMONY DECLARATION OF MARGO FARGEE
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`16
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`
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`IV. Opposer's Enforcement of the READY NUTRITION Mark
`
`45.
`
`Over the years, Opposer has engaged in an active enforcement program to protect
`
`its READY NUTRITION mark. Notwithstanding, Opposer has not until now needed to
`
`commence an enforcement action related to the READY NUTRITION mark.
`
`46.
`
`Opposer became aware of Applicant’s application by conducting a
`
`routine
`
`enforcement search of the USPTO database whereupon Opposer discovered the filed
`
`application by Applicant.
`
`47.
`
`As a result of Opposer's enforcement activities, other than the Applicant's mark
`
`challenged in this proceeding, lam aware ofno third parties usingthe READY NUTRITION
`
`mark or any similar mark in connection with providing and promoting informational
`
`materials pertinent to nutrition, healthy—living, durable foods, food storage, and other
`
`preparedness topics emphasizing a healthy and prepared lifestyle, nor any health or
`
`fitness foods or products. Thus, the READY NUTRITION mark, as used in connection with
`
`providing and promoting informational materials pertinent to nutrition, healthy-living,
`
`durable foods, food storage, and other preparedness topics emphasizing a healthy and
`
`prepared lifestyle, exclusively and uniquely identifies Opposer’s Ready Nutrition
`
`branded line of products.
`
`V. Applicant, the READY NUTRITION Mark, and Consumer Confusion
`
`48.
`
`On or about April of 2017, Opposer learned that Applicant applied to register for
`
`the READY NUTRITION mark when Opposer conducted a routine enforcement search of
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`TESTIMONY DECLARATION OF MARGO FARGEE
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`17
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`
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`the USPTO database whereupon Opposer discovered the filed application by Applicant.
`
`Opposer was not aware of the Applicant’s use of the READY NUTRITION mark before
`
`performing this enforcement search.
`
`49.
`
`50.
`
`51.
`
`Upon learning of Applicant‘s application, Opposer promptly contacted their
`
`attorney and prepared for this Opposition.
`
`Opposer has no business relationship with Applicant and has never authorized
`
`Applicant or otherwise permitted Applicant to use or register the READY NUTRITION
`
`mark or any other mark consisting of or including the READY NUTRITION mark.
`
`On December 7, 2017, Conference USA’s Facebook posted a comment and video
`
`that was mistakenly and confusingly linked with Opposer’s READY NUTRITION Facebook
`
`page. Conference USA has even announced that they have partnered with Ready
`
`Nutrition as their Official Sports Nutrition Brand. Attached as Exhibit 23 are true and
`
`correct copies of screen shots of the Conference USA’s Facebook page from December
`
`7, 2017 showing the incorrect link and posting and theJuly 17, 2017 posting showing the
`
`partnership announcement.
`
`52.
`
`On March 8, 2018, the Opposer’s Facebook page which promotes the READY
`
`NUTRITION line of branded products was contacted by a Facebook user with the profile
`
`name "Khrystein Bowling.” The user stated, "I tried your chili lime roasted chickpeas and
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`they were terrible. I imagine myself eating those after I’ve been thrown from a car crash
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`and the bag fell out of the car saving me from death-barer—till help arrived 3 days later.
`
`Yuck.” Opposer does not produce, market, or sell roasted chickpeas at this time.
`
`Opposer responded letting the
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