Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1005832
`10/01/2019
`
`ESTTA Tracking number:
`
`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
`
`Vital Holdings LLC
`
`Granted to Date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`10/02/2019
`
`173 E. Brannon Rd
`Nicholasville, KY 40356
`UNITED STATES
`
`WILLIAM L MONTAGUE JR.
`MONTAGUE LAW PLLC
`163 E MAIN ST STE. 300
`LEXINGTON, KY 40507
`UNITED STATES
`will.montague@wmlex.com
`(859) 423-1100
`
`Applicant Information
`
`Application No
`
`88302222
`
`Publication date
`
`06/04/2019
`
`Opposition Filing
`Date
`
`Applicant
`
`10/01/2019
`
`WellTap Inc.
`2303 Titania St
`Austin, TX 78741
`UNITED STATES
`
`Opposition Peri-
`od Ends
`
`10/02/2019
`
`Goods/Services Affected by Opposition
`
`Class 005. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: Dietary supplements in the form of liquid;
`Dietary and nutritional supplements;Herbal tinctures for medical purposes; Herbal supplements; Li-
`quid herbal supplements; Liquid nutritional supplement; Medicinal oils
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
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`Marks Cited by Opposer as Basis for Opposition
`
`U.S. Application
`No.
`
`88336452
`
`Application Date
`
`03/12/2019
`
`Registration Date
`
`NONE
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Word Mark
`
`Design Mark
`
`DWELL
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 003. First use: First Use: 0 First Use In Commerce: 0
`Body oils; Non-medicated grooming preparations for pets, namely, cannabidiol-in-
`fused creams and lotions; Non-medicated grooming preparations in the nature
`of shampoos for animals; Plant and herb extracts sold as components of cos-
`metics; Skin creams; Skin lotions; Skin moisturizer; Cosmetic creams for skin
`care; Cosmetic preparations for skin care; Cosmetic preparations for skin renew-
`al; Moisturizing preparations for the skin; Non-medicated skin care creams and
`lotions; Non-medicated skin care preparations; Non-medicated skin creams
`Class 005. First use: First Use: 0 First Use In Commerce: 0
`Analgesics; Anti-inflammatories; Beverages containing cannabidiol for use as a
`nutritional supplement; Plant extracts for medical, veterinary and pharmaceutical
`purposes; Plant and herb extracts soldas components of medicated cosmetics;
`Dietary supplemental drinks; Dietary supplements; Dietary supplements also
`containing cannabidiol; Dietary supplements for humans and animals; Dietary
`supplements for pets; Dietary and nutritional supplements; Dietary and nutrition-
`al supplements containing cannabidiol; Dietary food supplements; Dietary pet
`supplements in the form of pet treats; Homeopathic supplements; Medicated
`skin care preparations; Medicinal creams for skin care; Non-medicated additives
`for animal feed foruse as nutritional supplements; Nutraceuticals for use as a di-
`etary supplement;Nutritional supplements for pets
`Class 035. First use: First Use: 0 First Use In Commerce: 0
`On-line retail store services featuringskin care products for humans and
`pets,food and beverage supplements for humanand pet consumption, and oral
`care products for humans and pets; Retail store services featuring skin care
`products forhumans and pets, food and beverage supplements for human and
`pet consumption, and oral care products for humans and pets
`
`U.S. Application
`No.
`
`88600985
`
`Application Date
`
`08/31/2019
`
`Registration Date
`
`NONE
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`D DWELL CBD HEALTH & WELLNESS
`
`

`

`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 035. First use: First Use: 2019/07/31 First Use In Commerce: 2019/07/31
`Retail stores featuring skin creams, skin oils, dietary and nutritional supplements
`for humans and animals, and medicinal oils; Retail stores featuring skin creams,
`skin oils, dietary and nutritionalsupplements for humans and animals, andmedi-
`cinal oils, all of the foregoing containing hemp ingredients having a delta-9 tet-
`rahydrocannabinol concentration ofnot more than 0.3 percent on a dry weight
`basis; Retail stores featuring medicinal oils and dietary and nutritional supple-
`ments for humans and animals containing hemp or hemp derivatives, all of the
`foregoing containing hemp ingredients having a delta-9 tetrahydrocannabinol
`concentration of not more than 0.3 percent on a dry weight basis and containing
`not more than trace amounts of naturally occurring cannabidiol
`
`U.S. Application
`No.
`
`88599342
`
`Application Date
`
`08/30/2019
`
`Registration Date
`
`NONE
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`DWELL CBD WELLNESS FOR LIFE
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 003. First use: First Use: 2019/02/11 First Use In Commerce: 2019/08/30
`skin creams; skin creams containing hemp or hemp derivatives, all of the forego-
`ing containing hemp ingredients having adelta-9 tetrahydrocannabinol concen-
`tration of not more than 0.3 percent on a dry weight basis; skin oils; skin creams
`containing hemp or hemp derivatives, all of the foregoing containing hemp in-
`gredients having a delta-9 tetrahydrocannabinol concentration of not more than
`0.3 percent on a dry weight basis
`Class 005. First use: First Use: 2019/02/11 First Use In Commerce: 2019/08/30
`dietary and nutritional supplements forhumans and animals; dietary and nutri-
`tional supplements for humans and animals containing hemp or hemp derivat-
`ives, allof the foregoing containing hemp ingredients having a delta-9 tetrahy-
`drocannabinol concentration of not more than 0.3 percent on a dry weight basis;
`
`

`

`medicinal oils; medicinal oils containing hemp or hemp derivatives, all of the
`foregoing containing hemp ingredients having a delta-9 tetrahydrocannabinol
`concentration of not more than 0.3 percent on a dry weight basis; dietary and
`nutritional supplements for humans and animals containinghemp or hemp deriv-
`atives, all of the foregoing containing hemp ingredients having a delta-9 tetrahy-
`drocannabinol concentration of not more than 0.3 percent on a dry weight basis
`and containing not more than trace amounts of naturally occurring cannabidiol;
`medicinal oils containing hemp or hemp derivatives, all of theforegoing contain-
`ing hemp ingredients having a delta-9 tetrahydrocannabinol concentration of not
`more than 0.3 percent on a dry weight basis and containing notmore than trace
`amounts of naturally occurring cannabidiol
`
`Attachments
`
`88336452#TMSN.png( bytes )
`88600985#TMSN.png( bytes )
`88599342#TMSN.png( bytes )
`2019-10-01 - Notice of Opposition.pdf(94388 bytes )
`
`Signature
`
`/WILLIAM L MONTAGUE JR./
`
`Name
`
`Date
`
`WILLIAM L MONTAGUE JR.
`
`10/01/2019
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
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`Opposer,
`
`
`
`
`
`
`88302222
`February 14, 2019
`June 4, 2019
`DWELL
`
`Opposition No. _________________
`
`Application Serial No:
`Filed:
`
`
`
`Published for Opposition:
`Mark:
`
`
`
`
`Vital Holdings, LLC,
`
`
`
` v.
`
`WellTap Inc.,
`
`Applicant.
`________________________________________________________________________________
`
`
`
`
`NOTICE OF OPPOSITION
`
`Opposer, Vital Holdings, LLC (“Opposer”), a Kentucky limited liability company,
`
`believes that it will be damaged by the registration of the trademark DWELL that is the
`
`subject of Application Serial No. 88,302,222, and hereby opposes same. As grounds for
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`opposition, Opposer alleges the following:
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`1.
`
`Opposer is in the business of selling hemp oil products having a delta-9
`
`tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis,
`
`in accordance with the 2018 Farm Bill, Agriculture Improvement Act of 2018, Pub. L.
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`115-334, and other applicable law.
`
`2.
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`Beginning at least as early as December 20, 2018, Opposer continuously
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`has used the trademark DWELL in interstate commerce to promote and sell its hemp
`
`oil products, either through actual use or use analogous to a trademark.
`
`
`
`

`

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`
`
`
`3.
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`The DWELL trademark has been and remains inherently distinctive when
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`used with Opposer’s hemp oil products.
`
`4.
`
`Since introducing its DWELL products, Opposer has spent substantial
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`time, effort, and money to promote the sale of the product in the United States under
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`the DWELL mark.
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`5.
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`Opposer has sold and continues to sell substantial quantities of DWELL-
`
`branded products in the United States and has spent substantial time, effort, and
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`money promoting the sale of products under the DWELL mark.
`
`6.
`
`On February 14, 2019, Applicant WellTap, Inc. (“Applicant”), filed an
`
`application on an intent-to use basis to register the mark DWELL in standard-character
`
`form for “Dietary supplements in the form of liquid; Dietary and nutritional
`
`supplements; Herbal tinctures for medical purposes; Herbal supplements; Liquid herbal
`
`supplements; Liquid nutritional supplement; Medicinal oils,” as set forth in the Notice
`
`of Publication for the subject application.
`
`7.
`
`Opposer’s DWELL mark has priority over Applicant’s mark because
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`Opposer’s date of first use is prior to the February 14, 2019, filing date of Applicant’s
`
`application.
`
`8.
`
`Applicant’s applied-for DWELL mark in standard character form is
`
`identical to Opposer’s DWELL mark in sound, appearance, and commercial impression.
`
`9.
`
`The goods set forth in the subject application are related to the products for
`
`which Opposer’s DWELL mark is used, in that the various goods set forth in the subject
`
`application encompass Opposer’s DWELL hemp oil products, or could reasonably be
`
`expected to originate from the same source as products offered under the DWELL mark,
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`
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`
`
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`

`

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`
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`such that many consumers who encounter Applicant’s DWELL mark in connection with
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`such products are likely to think that Applicant or Applicant’s DWELL products are
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`authorized by, sponsored by, licensed by, affiliated with, or related to Opposer or
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`Opposer’s DWELL products.
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`10. As a result, Applicant’s applied-for DWELL mark, if used in conjunction
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`with the goods and services set forth in the subject application, is likely to cause
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`confusion, mistake, or to deceive as to the origin, source, sponsorship, or affiliation of
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`Applicant’s goods.
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`11. Applicant’s applied-for DWELL mark so resembles Opposer’s previously
`
`used DWELL mark that, when applied to one or more of the goods set forth in
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`Applicant’s application, it is likely to cause confusion, mistake, or deception within the
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`meaning of 15 U.S.C. § 1052(d).
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`WHEREFORE, Opposer respectfully prays that this Opposition be sustained and
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`that registration to Applicant be refused.
`
`Date: October 1, 2019
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/William L. Montague, Jr./
`William L. Montague, Jr.
`MONTAGUE LAW PLLC
`163 East Main Street, Suite 300
`Lexington, Kentucky 40507
`(859) 423-1100 (telephone)
`(888) 398-4958 (facsimile)
`will.montague@wmlex.com
`
`Counsel for Opposer
`
`
`
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`