Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1036677
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`Filing date:
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`02/18/2020
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91253339
`
`Party
`
`Correspondence
`Address
`
`Defendant
`My Habitat Inc.
`
`RIMA ELZEIN
`16030 MICHIGAN AVE SUITE 200
`DEARBORN, MI 48126
`elzeinrima@yahoo.com
`no phone number provided
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`Submission
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`Filer's Name
`
`Filer's email
`
`Signature
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`Date
`
`Answer
`
`Harold L. Novick
`
`docket@nkllaw.com, hnovick@nkllaw.com, adai@nkllaw.com
`
`/Harold L Novick/
`
`02/18/2020
`
`Attachments
`
`Answer to Notice of Opposition FINAL.pdf(224566 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Opposer,
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`v.
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`SQUIRE BOONE CAVERNS, INC.
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`
`
`
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`MY HABITAT INC.
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`
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`Applicant.
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`Opposition No.: 91253339
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`Application S/N: 88/202,648
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`Mark: GIANT MALLOW POOFY POP
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`Trademark Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1451
`Alexandria, VA 22313-1451
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`For online submission via ESTTA
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`ANSWER TO NOTICE OF OPPOSITION AND AFFIRMATIVE DEFENSES
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`This Opposition is being brought in the name of SQUIRE BOONE CAVERNS, Inc.
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`
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`(“Opposer”), which is a corporation of Indiana having its principal place of business at 406
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`Mount Tabor Road, New Albany, Indiana 47150 and which is the owner of Application Ser. No.
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`88460608 for the mark POOFY POP.
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`Applicant, MY HABITAT Inc. (“Applicant”), is a corporation of Michigan having its
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`principal place of business at 23636 Michigan Ave, #417, Dearborn, MI 48124 and which is the
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`owner of the opposed application Ser. No. 88202648 for the mark GIANT MALLOW POOFY
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`POP (“Applicant’s Mark”).
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`The Notice of Opposition was filed in the U.S. Patent and Trademark Office, at the
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`Trademark Trial and Appeal Board (“Board”) on January 8, 2020 by SQUIRE BOONE
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`

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`CAVERNS, Inc. Applicant hereby answers the Notice of Opposition filed by Opposer as
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`follows in correspondingly numbered paragraphs:
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`
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`1. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 1 of the Notice of Opposition, and therefore denies the same.
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`2. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 2 of the Notice of Opposition, and therefore denies the same.
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`3. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 3 of the Notice of Opposition, and therefore denies the same.
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`4. With respect to Paragraph 4 of the Notice of Opposition, Applicant admits that
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`Exhibit 1 attached to the Notice of Opposition consists of what appears to be seven (7) invoices,
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`not one as alleged by Opposer, and none identifying Opposer. Therefore, these invoices are not
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`relevant to the present Opposition, and in any event are hearsay and lack authentication.
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`Accordingly, Applicant denies the truth of any information in each of the seven (7) invoices.
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`Applicant denies any remaining averments in Paragraph 4.
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`5. With respect to Paragraph 5 of the Notice of Opposition, Applicant admits that
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`Exhibit 2 attached to the Notice of Opposition consists of what appears to be two (2) pages
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`perhaps from a catalog, but the catalog is from someone other than Opposer. Therefore, these
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`pages are not relevant to the present Opposition, and in any event are hearsay and lack
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`authentication. Furthermore, Opposer’s mark does not appear on the first page and neither of the
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`pages are “emblazoned POOFY POPS.” Accordingly, Applicant denies the truth of any
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`information in the two (2) pages. Applicant denies any remaining averments in Paragraph 5.
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`- 2 -
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`6. With respect to Paragraph 6 of the Notice of Opposition, Applicant admits only
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`that Exhibit 2 attached to the Notice of Opposition appears to show a product displaying the
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`words “POOFY ROPE” but, Applicant lacks knowledge or information sufficient to form a
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`belief as to the truth of the other and remaining averments in Paragraph 6 of the Notice of
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`Opposition, and therefore denies the each and every other and remaining averment contained
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`therein.
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`7. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in the first two sentences of Paragraph 7 of the Notice of Opposition, and
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`therefore denies the same. Applicant admits only that Exhibit 3 attached to the Notice of
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`Opposition consists of what appears to be a page perhaps from a catalog of the 2005 All Candy
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`Expo, but Opposer is not listed as appearing at the expo. Therefore, this Exhibit 3 is not relevant
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`and is also hearsay and lacks authentication. Accordingly, Applicant denies the truth of any
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`information in Exhibit 3. Applicant denies any remaining averments in Paragraph 7.
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`8. With respect to the first sentence of Paragraph 8 of the Notice of Opposition,
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`Applicant admits only that Exhibit 4 attached to the Notice of Opposition appears to include
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`photographs, but the photographs are not intelligible. Therefore, Applicant lacks knowledge or
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`information sufficient to form a belief as to the truth of the averments about Exhibit 4 and also
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`averments in the rest of the first sentence in Paragraph 8 of the Notice of Opposition, and
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`therefore denies the same. Applicant moves to strike the second sentence of Paragraph 8 of the
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`notice of Opposition as improperly attempting to incorporate averments by incorporation.
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`Accordingly, Applicant lacks knowledge or information sufficient to form a belief as to the truth
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`- 3 -
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`of the averments in the second sentence of Paragraph 8 of the Notice of Opposition, and
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`therefore denies the same.
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`9. Applicant admits the averments in Paragraph 9 of the Notice of Opposition.
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`10. Applicant admits the averments in Paragraph 10 of the Notice of Opposition.
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`11. With respect to Paragraph 11 of the Notice of Opposition Applicant admits only
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`that it disclaimed the terms “Giant Mallow” and “Pop,” but denies each and every other
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`remaining averment in Paragraph 11.
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`12. Applicant admits the averments in Paragraph 12 of the Notice of Opposition.
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`13. Applicant admits only that Opposer filed an application given the Ser. No.
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`88/460,608 (“the ’608 application”) on June 5, 2019 for the mark POOFY POP claiming use
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`since at least December 31, 2004 for goods identified as confectionaries, namely, candy.
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`14. With respect to Paragraph 14 of the Notice of Opposition, Applicant admits only
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`that the Trademark Examining Attorney stated in an Office Action in Opposer’s ’608 application
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`that, inter alia, “applicant’s mark may be refused registration under … Section 2(d) because of a
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`likelihood of confusion between the two marks.” Applicant denies the remaining averments in
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`paragraph 14.
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`15. With respect to Paragraph 15 of the Notice of Opposition, Applicant admits only
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`that a real and justiciable controversy may exist between Opposer and Applicant. Applicant
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`denies the remaining averments in Paragraph 15.
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`16. Applicant denies the averments in Paragraph 16 of the Notice of Opposition.
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`17. Applicant denies the averments in Paragraph 17 of the Notice of Opposition.
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`18. Applicant denies the averments in Paragraph 18 of the Notice of Opposition.
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`- 4 -
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`COUNT I – LIKELIHOOD OF CONFUSION
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`19. Applicant’s answers to paragraphs 1-18 of the Notice of Opposition are
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`incorporated herein by reference.
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`20. Applicant denies the averments of Paragraph 20 of the Notice of Opposition.
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`21. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 21 of the Notice of Opposition, and therefore denies the
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`same. But, Applicant denies that Opposer has priority over Applicant’s Mark.
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`22. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 22 of the Notice of Opposition, and therefore denies the
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`same. Further, Applicant expressly denies that Opposer has priority over Applicant’s Mark.
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`23. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 23 of the Notice of Opposition, and therefore denies the
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`same. Further, Applicant denies that Opposer has priority over Applicant’s Mark.
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`24. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 24 of the Notice of Opposition, and therefore denies the
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`same.
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`25. Applicant admits that the mark GIANT MALLOW POOFY POP of the ’648
`
`application is owned by Applicant. Applicant lacks knowledge or information sufficient to form
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`a belief as to the truth of the averments in Paragraph 25 of the Notice of Opposition, and
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`therefore denies the same.
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`26. With respect to Paragraph 26 of the Notice of Opposition Applicant admits only
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`that Applicant’s products identified in its’648 application are identical to Opposer’s products
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`identified in its’608 application. Applicant lacks knowledge or information sufficient to form a
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`- 5 -
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`

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`belief as to the truth of the other averments in Paragraph 26 of the Notice of Opposition, and
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`therefore denies the same.
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`27. Applicant lacks knowledge or information sufficient to form a belief as to the
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`truth of the averments in Paragraph 27 of the Notice of Opposition, and therefore denies the
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`same.
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`28. Applicant admits only to the averments in the first and second sentences of
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`Paragraph 28 of the Notice of Opposition. Applicant is without information or knowledge
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`sufficient to form a belief as to the truth of the remaining averments in Paragraph 28 of Notice of
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`Opposition, and therefore denies each and every other and remaining averments contained
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`therein.
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`29. Applicant denies the averments in Paragraph 29 of the Notice of Opposition.
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`30. Applicant denies the averments in Paragraph 30 of the Notice of Opposition.
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`31. Any averments in the Notice of Opposition that are not expressly admitted to
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`hereinabove are denied.
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`
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`OPPOSER’S PRAYER FOR RELIEF
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`Applicant denies that Opposer is entitled to any relief and further requests that this
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`Opposition be dismissed and the registration to Applicant be granted.
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`- 6 -
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`

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`AFFIRMATIVE DEFENSES
`
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`Applicant pleads the following affirmative defenses to the Notice of Opposition. Applicant
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`reserves the right to raise any additional defenses warranted by the facts disclosed during
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`discovery.
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`The Notice of Opposition was filed in the name of Squire Boone Caverns, Inc.
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`(“Opposer”). Moreover, Application Ser. No. 88/460,608 was also filed by Opposer. Yet all of the
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`alleged use of the mark POOFY POP pleaded in the Notice of Opposition is by a third party, Squire
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`Boone Village, Inc. (“Third Party”). There is no proof of an assignment to the Opposer. Thus, it
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`appears from the pleadings of the Notice of Opposition that the wrong party brought this
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`Opposition and filed Opposer’s Application.
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`1. Opposer is not the owner of the mark POOFY POP.
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`2. Opposer’s Application Ser. No. 88/460,608 is void ab initio because on
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`information and belief, Opposer did not own the mark as of the filing date of the application.
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`3. Opposer has no first use of the mark POOFY POP.
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`4. On information and belief, Opposer has no use in commerce of the mark POOFY
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`POP.
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`5. Opposer is the wrong party to bring this opposition.
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`6. Exhibit 1 to the Notice of Opposition evidences that the first use of the mark
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`POOFY POP is not by Opposer but by the Third Party.
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`7. Exhibit 1 to the Notice of Opposition does not evidence use in “commerce” as
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`that term is defined in 15 USC § 1127 (Lanham Act § 45).
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`8. Exhibit 2 to the Notice of Opposition does not evidence use in “commerce” as
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`that term is defined in 15 USC § 1127 (Lanham Act § 45).
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`- 7 -
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`

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`9. Exhibit 3 to the Notice of Opposition does not evidence use in “commerce” as
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`that term is defined in 15 USC § 1127 (Lanham Act § 45).
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`10. Exhibit 4 to the Notice of Opposition does not evidence use in “commerce” as
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`that term is defined in 15 USC § 1127 (Lanham Act § 45).
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`11. Applicant has priority in the use of its mark GIANT MALLOW POOFY POP
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`over the use of the mark POOFY POP alleged in the Notice of Opposition.
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`12. On information and belief, there is no use of the mark POOFY POP that is a bona
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`fide use in the ordinary course of trade.
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`13. On information and belief, the alleged use of the mark POOFY POP was one
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`made merely to reserve a right in the use of the mark.
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`14. On information and belief, the mark POOFY POP was abandoned between
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`January 1, 2013, the date of first use by Applicant, and June 5, 2019, the date Opposer’s
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`application was filed.
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`15. Opposer may not tack its alleged use in commerce of June 5, 2019 to its alleged
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`first use date of December 31, 2004 because on information and belief, Opposer did not
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`continuously use the mark POOFY POP during that time.
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`16. Applicant has priority over Opposer’s mark POOFY POP, because Applicant
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`used its mark GIANT MALLOW POOFY POP in commerce at least as early as January 1, 2013,
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`which is believed to be before the date of use in commerce by Opposer.
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`17. Applicant has priority over Opposer’s mark POOFY POP, because Applicant
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`used its mark GIANT MALLOW POOFY POP in commerce at least as early as January 1, 2013,
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`which is believed to be before the date of use in commerce by the Third Party.
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`- 8 -
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`

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`Date: February 18, 2020
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`/Harold L Novick/
`Harold L. Novick
`NOVICK, KIM & LEE, PLLC
`3251 Old Lee Highway, Suite 404
`Fairfax, VA 22030
`Telephone: (703) 745-5495
`Facsimile: (703) 563-9748
`Email: hnovick@nkllaw.com
`Attorneys for Applicant MY HABITAT Inc.
`
`
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`- 9 -
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing ANSWER TO NOTICE OF
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`OPPOSITION AND AFFIRMATIVE DEFENSES is being served on Opposer Squire Boone
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`Caverns, Inc. through its attorney of record by transmitting a copy on February 18, 2020 via
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`email to the email address specified below:
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`
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`Joseph W. Berenato, III (uspto.filings@bw-iplaw.com)
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`Signed: /Angela Y. Dai/
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`
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` Angela Y. Dai
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`

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