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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1026831
`01/06/2020
`
`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
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`Agewell, LLC
`
`Limited liability company
`
`Citizenship
`
`Indiana
`
`9292 N. Meridian St.
`Suite 100B
`Indianapolis, IN 46260
`UNITED STATES
`
`Bradley M. Stohry
`Reichel Stohry Dean LLP
`212 W. 10th St.
`Suite A-285
`INDIANAPOLIS, IN 46202
`UNITED STATES
`brad@rsindy.com, docket@rsindy.com
`3174238820
`
`Applicant Information
`
`Application No
`
`88534433
`
`Publication date
`
`12/10/2019
`
`Opposition Filing
`Date
`
`Applicant
`
`01/06/2020
`
`Kunkel, Kimberly
`2740 Paint Dr
`Auburn, CA 95603
`UNITED STATES
`
`Opposition Peri-
`od Ends
`
`01/09/2020
`
`Goods/Services Affected by Opposition
`
`Class 041. First Use: 0 First Use In Commerce: 0
`All goods and services in the class are opposed, namely: Health Coaching Services, namely, person-
`al coaching services in the field of nutrition and health goals
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`Marks Cited by Opposer as Basis for Opposition
`
`U.S. Registration
`No.
`
`1920595
`
`Registration Date
`
`09/19/1995
`
`Word Mark
`
`AGEWELL
`
`Application Date
`
`09/14/1990
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 009. First use: First Use: 1993/05/01 First Use In Commerce: 1993/06/11
`pre-recorded audio and video tapes and compact discs related to aspects of
`aging and the elderly and concerning topics of health care, financial resources
`and personal enrichment activities
`Class 016. First use: First Use: 1994/12/16 First Use In Commerce: 1994/12/16
`books, pamphlets, magazines, booklets and brochures related to aspects of
`agingand the elderly and concerning topics of health care, financial resources
`and personal enrichment activities
`
`U.S. Registration
`No.
`
`1943956
`
`Registration Date
`
`12/26/1995
`
`Application Date
`
`12/16/1994
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`AGEWELL
`
`NONE
`
`Class 041. First use: First Use: 1990/09/12 First Use In Commerce: 1992/08/20
`conducting workshops and seminars in the field of aging and the elderly and
`concerning the topics of health care, financial resources and personal enrich-
`ment activities
`
`U.S. Registration
`No.
`
`2102654
`
`Registration Date
`
`10/07/1997
`
`Application Date
`
`12/20/1995
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`AGEWELL
`
`NONE
`
`Class 041. First use: First Use: 1995/06/15 First Use In Commerce: 1995/06/15
`audio and video recording and production services; book publication services
`
`U.S. Registration
`No.
`
`2270951
`
`Registration Date
`
`08/17/1999
`
`Application Date
`
`09/27/1996
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`AGEWELL
`
`NONE
`
`Class 042. First use: First Use: 1990/09/12 First Use In Commerce: 1992/08/20
`geriatric health care services
`
`U.S. Registration
`No.
`
`3822185
`
`Registration Date
`
`07/20/2010
`
`Application Date
`
`05/06/2002
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Word Mark
`
`Design Mark
`
`AGEWELL
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 003. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Cosmetic preparations, namely, hand creams and gels, skin, face and eye
`creams and gels
`Class 005. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Vitamins, minerals, nutritional and dietary supplements
`Class 010. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Surgical and medical apparatus and instruments, namely, electric or chemically
`activated heating pads and physical therapy equipment, namely, heat and cold
`packs for medical purposes; and hand and leg muscle exercisers for age-related
`sarcopenia
`Class 028. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Sporting goods equipment, namely, powered and manual exercise machines for
`movement of arms and legs, exercise mats
`Class 029. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Nutritional foods, namely, bars from processed vegetables
`
`Attachments
`
`76404238#TMSN.png( bytes )
`Agewell Notice of Opposition re ChooseWellLiveWellAgeWell.pdf(128047 bytes
`)
`
`Signature
`
`/bms/
`
`Name
`
`Date
`
`Bradley M. Stohry
`
`01/06/2020
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the matter of Trademark App. Ser. Nos. 88/534,433
`Filed on July 24, 2019
`For the mark ChooseWellLiveWellAgeWell
`Published in the Official Gazette on December 10, 2019
`
`
`
`
`
`
`
`
`Agewell, LLC,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Opposer,
`
`
`
`
`
`
`
`
`
`
`
`
` v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Kimberly Kunkel,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Applicant.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Opposition No.:______________
`
`NOTICE OF OPPOSITION
`
`
`
`Agewell, LLC (“Opposer”) hereby opposes the above-referenced application to register
`
`the ChooseWellLiveWellAgeWell mark filed by Kimberly Kunkel (“Applicant”). The grounds
`
`for opposition are as follows:
`
`THE PARTIES
`
`1.
`
`Opposer is an Indiana limited liability company with a place of business at 9292
`
`North Meridian Street, Suite 100B, Indianapolis, IN 46260.
`
`2.
`
`Applicant is a resident of the State of California with an address at 2740 Paint Dr.,
`
`Auburn, CA 95603.
`
`OPPOSER AND ITS USE OF THE AGEWELL MARK
`
`3.
`
`4.
`
`5.
`
`Opposer provides a variety of goods and services related to the healthcare field.
`
`Opposer is the owner of substantial trademark rights in the AGEWELL mark.
`
`Opposer owns numerous trademark registrations for the AGEWELL mark,
`
`including U.S. Registration Numbers 1,920,595, 1,943,956, 2,102,654, 2,270,951 and 3,822,185
`
`

`

`(collectively, the “AGEWELL Registrations”). The AGEWELL Registrations cover a variety of
`
`goods and services in the healthcare space.
`
`6.
`
`Opposer has been using the AGEWELL mark to promote its healthcare goods and
`
`services since 1992. Since that time, Opposer has established extensive and valuable goodwill in
`
`the AGEWELL mark and has spent significant amounts of time and money establishing this
`
`goodwill.
`
`7.
`
`The AGEWELL mark has come to indicate and stand for the high-quality services
`
`offered by Opposer.
`
`8.
`
`As a result of Opposer’s use of the AGEWELL mark, the AGEWELL mark has
`
`become valuable property of Opposer.
`
`GROUNDS FOR AND REJECTING APPLICANT’S TRADEMARK APPLICATION
`
`
`9.
`
`Trademark App. Ser. Nos. 88/534,433 (the “Application”) was filed by Applicant
`
`for the ChooseWellLiveWellAgeWell mark on July 24, 2019.
`
`10.
`
`The Application is an intent-to-use application and covers “health coaching
`
`services, namely, personal coaching services in the field of nutrition and health goals” in Class
`
`41.
`
`11.
`
`Opposer’s actual, continuous, and continuing use of the AGEWELL Mark in
`
`commerce began well before Applicant filed its Application and/or began using the
`
`ChooseWellLiveWellAgeWell mark.
`
`12.
`
`Each of the AGEWELL Registrations predates the Application by a number of
`
`years.
`
`13.
`
`Applicant’s use and registration of the ChooseWellLiveWellAgeWell mark for
`
`the services listed in the Application is likely to cause confusion, mistake, and/or lead to
`
`Page 2
`
`

`

`deception as to the origin of Applicant’s services in violation of Sections 32 and 43(a) of the
`
`Lanham Act, 15 U.S.C. §§1114 and 1125(a).
`
`14.
`
`The
`
`likelihood of confusion
`
`is apparent
`
`in
`
`this
`
`instance because
`
`the
`
`ChooseWellLiveWellAgeWell mark contains the entirety of the AGEWELL mark, the
`
`ChooseWellLiveWellAgeWell mark is confusingly similar to the AGEWELL mark, and both
`
`marks are used in connection with healthcare services.
`
`15.
`
`Applicant’s use and registration of the ChooseWellLiveWellAgeWell mark is
`
`likely to result in confusion and substantial damage and injury to Opposer. Persons familiar with
`
`Opposer’s AGEWELL mark are likely to believe that Applicant’s services originate with, or are
`
`licensed, sponsored or approved by Opposer. Any such confusion would inevitably result in loss
`
`of sales to Opposer, and/or damage the goodwill and reputation that Opposer has established in
`
`the AGEWELL.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`WHEREFORE, Opposer prays that the Application be rejected.
`
`Dated this 6th day of January, 2019.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`/Bradley M. Stohry/
`Bradley M. Stohry
`REICHEL STOHRY DEAN LLP
`212 West 10th Street
`Suite A-285
`Indianapolis, Indiana 46202
`(317) 423-8820
`
`By:
`
`
`
`
`
`
`
`
`Attorney for Agewell, LLC
`
`Page 3
`
`

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