Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1011766
`
`Filing date:
`
`10/28/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91251034
`
`Party
`
`Correspondence
`Address
`
`Defendant
`ACTIVZ GLOBAL, LLC
`
`JOLLY-JOHANNA L. NORTHROP
`MICHAEL BEST & FRIEDRICH LLP
`8300 ARISTA PLACE, SUITE 300
`BROOMFIELD, CO 80021
`mkeipdocket@michaelbest.com, jlnorthrop@michaelbest.com
`no phone number provided
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Answer
`
`Anthony J. Biller
`
`ajbiller@michaelbest.com, jlnorthrop@michaelbest.com, mkeipdock-
`et@michaelbest.com, jsorey@michaelbest.com
`
`Signature
`
`Date
`
`/Anthony J. Biller/
`
`10/28/2019
`
`Attachments
`
`Answer.pdf(44517 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA1011766
`
`Filing date:
`
`10/28/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91251034
`
`Party
`
`Correspondence
`Address
`
`Defendant
`ACTIVZ GLOBAL, LLC
`
`JOLLY-JOHANNA L. NORTHROP
`MICHAEL BEST & FRIEDRICH LLP
`8300 ARISTA PLACE, SUITE 300
`BROOMFIELD, CO 80021
`mkeipdocket@michaelbest.com, jlnorthrop@michaelbest.com
`no phone number provided
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Answer
`
`Anthony J. Biller
`
`ajbiller@michaelbest.com, jlnorthrop@michaelbest.com, mkeipdock-
`et@michaelbest.com, jsorey@michaelbest.com
`
`Signature
`
`Date
`
`/Anthony J. Biller/
`
`10/28/2019
`
`Attachments
`
`Answer.pdf(44517 bytes )
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`GLANBIA NUTRITIONALS
`(IRELAND) LIMITED,
`
` Opposer,
`
`v.
`
`ACTIVZ GLOBAL, LLC
`
` Applicant.
`
`
`
`
`Mark: OPTIMEND
`
`Serial No. 88283206
`
`Opposition No. 91251034
`
`
`
`ANSWER
`
`Applicant responds to the paragraphs of the Notice of Opposition seriatim as follow.
`
`Applicant lacks sufficient information regarding the allegations of the Opposer’s preamble and
`
`therefore denies the same.
`
`1.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 1
`
`and therefore denies the same.
`
`2.
`
`3.
`
`Admitted.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 3
`
`and therefore denies the same.
`
`4.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 4
`
`and therefore denies the same.
`
`5.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 5
`
`and therefore denies the same.
`
`6.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 6
`
`and therefore denies the same.
`
`7.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 7
`
`
`
`
`
`
`
`and therefore denies the same.
`
`8.
`
`Applicant admits upon information and belief that Exhibit A is an accurate copy
`
`of the registration certificate but lacks sufficient information regarding the remaining allegations
`
`of paragraph 8 and therefore denies the same.
`
`9.
`
`10.
`
`Admitted upon information and belief.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 10
`
`and therefore denies the same.
`
`11.
`
`Applicant admits upon information and belief that Exhibit B is an accurate copy
`
`of the registration certificate but lacks sufficient information regarding the remaining allegations
`
`of paragraph 11 and therefore denies the same.
`
`12.
`
`13.
`
`Admitted upon information and belief.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 13
`
`and therefore denies the same.
`
`14.
`
`Applicant admits upon information and belief that Exhibit C is an accurate copy
`
`of the registration certificate but lacks sufficient information regarding the remaining allegations
`
`of paragraph 14 and therefore denies the same.
`
`15.
`
`16.
`
`Admitted upon information and belief.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 16
`
`and therefore denies the same.
`
`17.
`
`Applicant admits upon information and belief that Exhibit D is an accurate copy
`
`of the registration certificate but lacks sufficient information regarding the remaining allegations
`
`of paragraph 17 and therefore denies the same.
`
`18.
`
`Admitted upon information and belief.
`
`
`
`2
`
`
`
`
`
`19.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 19
`
`and therefore denies the same.
`
`20.
`
`Applicant admits upon information and belief that Exhibit E is an accurate copy
`
`of the registration certificate but lacks sufficient information regarding the remaining allegations
`
`of paragraph 20 and therefore denies the same.
`
`21.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 21
`
`and therefore denies the same.
`
`22.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 22
`
`and therefore denies the same.
`
`23.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 23
`
`and therefore denies the same.
`
`24.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 24
`
`and therefore denies the same.
`
`25.
`
`26.
`
`Applicant denies the allegations of paragraph 25.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 26
`
`and therefore denies the same.
`
`27.
`
`28.
`
`29.
`
`30.
`
`31.
`
`32.
`
`33.
`
`Admitted.
`
`Admitted.
`
`Applicant denies the allegations of paragraph 29.
`
`Applicant denies the allegations of paragraph 30.
`
`Admitted.
`
`Admitted upon information and belief.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 33
`
`
`
`3
`
`
`
`
`
`and therefore denies the same.
`
`34.
`
`Applicant admits upon information and belief that the Optimum Registrations
`
`were granted prior to Applicant’s date of application. Except as admitted herein, Applicant
`
`denies the allegations of paragraph 34.
`
`35.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 35
`
`and therefore denies the same.
`
`36.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 36
`
`and therefore denies the same.
`
`37.
`
`38.
`
`39.
`
`Applicant denies the allegations of paragraph 37.
`
`Applicant denies the allegations of paragraph 38.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 39
`
`and therefore denies the same.
`
`40.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 40
`
`and therefore denies the same.
`
`41.
`
`To the extent paragraph 41 asserts a legal conclusion, a response is not required.
`
`To the extent the paragraph contains factual allegations or otherwise necessitates a response,
`
`denied.
`
`42.
`
`To the extent paragraph 42 asserts a legal conclusion, a response is not required.
`
`To the extent the paragraph contains factual allegations or otherwise necessitates a response,
`
`denied.
`
`43.
`
`To the extent paragraph 43 asserts a legal conclusion, a response is not required.
`
`To the extent the paragraph contains factual allegations or otherwise necessitates a response,
`
`denied.
`
`
`
`4
`
`
`
`
`
`44.
`
`To the extent paragraph 44 asserts a legal conclusion, a response is not required.
`
`To the extent the paragraph contains factual allegations or otherwise necessitates a response,
`
`denied.
`
`45.
`
`To the extent paragraph 45 asserts a legal conclusion, a response is not required.
`
`To the extent the paragraph contains factual allegations or otherwise necessitates a response,
`
`denied.
`
`46.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 46
`
`and therefore denies the same.
`
`47.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 46
`
`and therefore denies the same.
`
`48.
`
`49.
`
`50.
`
`Applicant denies the allegations of paragraph 48.
`
`Applicant incorporates its prior responses.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 50
`
`and therefore denies the same.
`
`51.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 51
`
`and therefore denies the same.
`
`52.
`
`53.
`
`54.
`
`55.
`
`Applicant denies the allegations of paragraph 52.
`
`Applicant denies the allegations of paragraph 53.
`
`Applicant denies the allegations of paragraph 54.
`
`Applicant lacks sufficient information regarding the allegations of paragraph 55,
`
`to include what Opposer believes, and therefore denies the same.
`
`56.
`
`57.
`
`Applicant incorporates its prior responses.
`
`Applicant denies the allegations of paragraph 57.
`
`
`
`5
`
`
`
`
`
`58.
`
`59.
`
`60.
`
`Applicant denies the allegations of paragraph 58.
`
`Applicant denies the allegations of paragraph 59.
`
`Applicant denies the allegations of paragraph 60.
`
`First Affirmative Defense
`
`Applicant uses the OPTIMEND mark on a specific type of anti-inflammatory product,
`
`which falls within the scope of its current application. While Applicant denies there is any
`
`likelihood of confusion with Opposer’s marks and OPTIMEND used in conjunction with
`
`“Nutritional Supplements” in IC005, if the Board ultimately finds that Opposer is entitled to
`
`judgment with respect to Applicant’s goods as broadly identified, Applicant would be entitled to
`
`a registration of its mark with a restricted identification reflecting the actual nature of its goods,
`
`namely anti-inflammatories, pursuant to Trademark Act § 18, 15 U.S.C. § 1068, 37 C.F.R. §
`
`2.133(b) and T.B.M.P. § 309.03(d).
`
`Applicant denies Opposer is entitled to relief and accordingly requests that its application
`
`be allowed to progress to registration.
`
`Respectfully submitted, this the 28th day of October, 2019.
`
`By:
`
`
`
`
`
`
`
`
`
`/s/ Anthony J. Biller
`Anthony J. Biller
`Michael Best & Friedrich LLP
`NC State Bar No. 24,117
`2501 Blue Ridge Road, Suite 390
`Raleigh, North Carolina 27607
`Telephone: (984) 220-8750
`Facsimile: (877) 398-5240
`Email: ajbiller@michaelbest.com
`
`
`
`By: Jolly-Johanna L. Northrop
` Jolly-Johanna L. Northrop
` Michael Best & Friedrich LLP
`8300 Arista Place, Suite 300
`Broomfield, CO 80021
`Telephone: (303) 800-1580
`Facsimile: (877) 398-5240
`Email: jlnorthrop@michaelbest.com
`
`
`Attorneys for Applicant
`
`
`
`
`6
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`
`I hereby certify that on this the 28th day of October 2019 a true and accurate copy of the
`
`foregoing ANSWER was served on opposing counsel via US Mail, first class postage paid, and
`via E-mail, at the following addresses:
`
`
`Mr. Angelo J. Bufalino
`Vedder Price P.C.
`222 N. LaSalle Street – 24th Floor
`Chicago, IL 60601
`abufalino@vedderprice.com
`ipdocket@vedderprice.com
`
`
`
`
`/s/ Anthony J. Biller
`
`
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
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