Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1130785
`04/30/2021
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`ESTTA Tracking number:
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`Filing date:
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91254642
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`Party
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`Correspondence
`Address
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`Plaintiff
`My Own Meals, Inc.
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`MICHELE S KATZ
`ADVITAM IP LLC
`150 S WACKER DRIVE SUITE 2400
`CHICAGO, IL 60606
`UNITED STATES
`Primary Email: mskdocket@advitamip.com
`Secondary Email(s): atokarz@advitamip.com
`312-332-7710
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Opposition/Response to Motion
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`Michele S. Katz
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`mskdocket@advitamip.com, atokarz@advitamip.com
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`/Michele S. Katz/
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`04/30/2021
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`Attachments
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`FINAL Resp to MSJ.pdf(1226918 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
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`MY OWN MEALS, INC.,
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`Consolidated Proceedings
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`Opposer,
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`v.
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`PURFOODS, LLC,
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`Applicant.
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`Opposition No: 91254642 (Parent)
`Cancellation No. 92073705
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`In the matter of:
`Application Serial No. 88/611,072
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`Mark: MOM’S MEALS and design
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`OPPOSER’S RESPONSE TO APPLICANT’S COMBINED MOTION FOR SUMMARY
`JUDGMENT IN OPPOSITION AND MEMORANDUM IN SUPPORT
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`Opposer, My Own Meals, Inc. (“Opposer”) hereby submits this brief in opposition to
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`Purfoods (“Applicant”) Motion for Summary Judgment (hereinafter “Motion”). For the reasons
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`set forth herein, Opposer respectfully requests that Applicant’s Motion be denied.
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`I.
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`INTRODUCTION
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`Applicant's Motion should be denied because Opposer's use was prior to Applicant's.
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`Applicant's own documents and statements prove that there is a genuine dispute of material fact
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`as to whether Applicant has shown its priority of use of the trademark and service mark.
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`Moreover, Applicant seeks to bypass the discovery process in this matter and worse, Applicant
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`seeks to use this motion practice to avoid having to explain what might amount to a fraud on the
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`U.S. Patent and Trademark Office, as alleged in the Petition for Cancellation. Indeed, there are
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`clear triable material issues of fact in connection with Opposer’s claims. Applicant has failed to
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`meet its burden and summary judgment is inappropriate.
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`1
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`II.
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`FACTS
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`Opposer is the owner of various federally registered trademarks, known as United States
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`Trademark Registration Nos. 1,470,809, 1,548,528, 3,964,874, 5,631,463, and 6,067,075
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`registered respectively on December 29, 1987, July 18, 1989, May 24, 2011, December 18, 2018,
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`and June 2, 2020 (“Opposer’s Registrations”). Opposer filed a use-based application for the mark
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`M.O.M. Ser. No. 88/509,153 in International classes 29, 30, 35, 39, and 43 on July 11, 2019
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`(“Opposer’s M.O.M. App.”).
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`Opposer is one of the first companies to enter the shelf-stable meals market and is
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`recognized as the creator of children’s shelf stable meals, the creator of the first dual certified
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`kosher and halal shelf stable meals, the creator of kosher and halal related institutional meal
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`programs, and the creator of US Military Religious Rations known as Meals Ready to Eat
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`(MRE)-Kosher and Meals Ready to Eat (MRE)-Halal. In 1987, Opposer introduced a line of all-
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`natural, no MSG, no preservatives shelf stable meals developed for the taste and nutritional
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`needs of children ages 2-10.
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`On April 17, 1987, Opposer filed Application Serial No. 73/655,766 to register the mark
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`MY OWN MEAL in International Class 29 in connection to the following goods: prepackaged
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`prepared meals namely, meat and vegetable entrees, which registered on December 29, 1987
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`(Reg. No. 1,470,809). On November 4, 1988, Opposer filed Application Serial No. 73/761,781 to
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`register mark MY OWN MEAL in International Class 30 in connection to the following goods:
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`prepackaged, prepared pasta dinners, which registered on July 18, 1989 (Reg. No. 1,548,528).
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`On May 14, 2010, Opposer filed Application Serial No. 85/039,297 to register the mark MY
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`OWN MEAL and Design in International Class 29 in connection to the following goods:
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`packaged meals consisting primarily of meat, fish, poultry or vegetables, which registered on
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`2
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`May 24, 2011 (Reg. No. 3,964,874). On April 4, 2018, Opposer filed Application Serial No.
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`87/862,862 to register the mark MY OWN MEAL and Design in International Class 29 in
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`connection to the following goods: prepackaged prepared meals, namely, meat and vegetable
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`entrees, which registered on December 18, 2018 (Reg. No. 5,631,463). As early as 1986,
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`Opposer started using the mark MOM and M.O.M., an acronym for My Own Meals (hereinafter
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`references to “MOM” include “M.O.M.”). See Declaration of Mary Anne Jackson attached
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`hereto as Exhibit 1.
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`As early as 1988, Opposer’s PR campaigns used MOM in its press releases. Furthermore,
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`as early as 1988, publications, television, radio and public speaking events referred to Opposer as
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`MOM. (See Exhibits 4-5, sample of newspaper, magazine articles and public speaking
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`announcements). Opposer has consistently and substantially exclusively been referred to as
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`“MOM” in the food industry for over three (3) decades. See Exhibit 2.
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`On July 11, 2019, Opposer filed Application Serial No. 88/509,153 (currently pending) to
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`register the mark M.O.M. in International Classes 29, 30, 35, 39 and 43. On May 12, 1999,
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`Mom’s Meals, Ltd. filed Application Serial No. 75/703,467 to register the mark MOM’S
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`MEALS in International Class 43 (hereinafter “MOM’S MEALS Word Mark”). The MOM’S
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`MEALS Word Mark registered on February 27, 2001 (Reg. No. 2,430,824). On July 19, 2012,
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`Applicant filed Application Serial No. 85/681,167 to register the mark MOM’S MEALS and
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`Design including a ladle, (hereinafter “MOM’S MEALS Design Mark”) in International Class 42
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`in connection to the following services: “food preparation, namely, preparation of home cooked
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`meals and preparation of frozen or shelf-stable meals; restaurant services featuring home
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`delivery[.]”
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`3
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`Applicant’s Vice President, Michael Lee Anderson, admitted that the MOM’S MEALS
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`mark was never used in connection with restaurant services. See Exhibit 3, Michael Lee
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`Anderson Deposition, 45 ¶18-22. Applicant’s Vice President, Michael Lee Anderson, admitted
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`that the MOM’S MEALS mark was never used in connection with catering. See Exhibit 3,
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`Michael Lee Anderson Deposition, 46 ¶3-5. Applicant’s Vice President, Michael Lee Anderson,
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`admitted that the mark MOM’S MEALS NOURISHCARE is no longer in use. See Exhibit 3,
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`Michael Lee Anderson Deposition, 70 ¶11, ¶23-24, 73 ¶15-18. Applicant’s Vice President,
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`Michael Lee Anderson, admitted that the design mark MOM’S MEALS with the ladle is no
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`longer in use. See Exhibit 3, Michael Lee Anderson Deposition, 72 ¶11-19. Finally, Applicant’s
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`Vice President, Michael Lee Anderson, admitted that Applicant’s newest 2019 logo replaces all
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`prior logos. See Exhibit 3, Michael Lee Anderson Deposition, 70 ¶4-10.
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`III. ARGUMENT
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`A. Legal Standard for Summary Judgment
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`A party moving for summary judgment has the burden of demonstrating the absence of
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`any genuine issue of material fact, and that it is entitled to summary judgment as a matter of law.
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`See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). This burden is greater than
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`the evidentiary burden at trial. Gasser Chair Co. v. Infanti Chair Manufacturing Corp., 60 F.3d
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`770, 34 U.S.P.Q.2d 1822, 1824 (Fed. Cir. 1995). A motion for summary judgment is not a place
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`to try issues of fact; instead, it is a place to determine whether any genuine issues of fact exist.
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`Dyneer Corp. v. Auto. Prods., plc, 37 U.S.P.Q.2d 1251, 1254 (T.T.A.B. 1995). The nonmovant
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`“need only present evidence from which a jury might return a verdict in [its] favor” to defeat a
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`motion for summary judgment, and “the Board must draw all reasonable inferences in favor of
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`the nonmovant.” Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 202, 22 U.S.P.Q.2d
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`4
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`1542, 1544 (Fed. Cir. 1992). If the Board concludes, upon motion for summary judgment, that
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`there is no genuine issue of material fact, but that it is the nonmoving party, rather than the
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`moving party, which is entitled to judgment as a matter of law, the Board may, in appropriate
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`cases, enter summary judgment sua sponte in favor of the nonmoving party even if no formal
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`cross-motion is made. T.B.M.P. 528.01; The Clorox Co. v. Chemical Bank, Cancellation No.
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`23,559, 1996 WL 579826, *9 (TTAB 1996).
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`B. Legal Standard for Likelihood of Confusion
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`To prevail on summary judgment on a claim of likelihood of confusion, the movant must
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`establish that there is no genuine dispute that it has priority of use or that priority is not at issue;
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`and that contemporaneous use of the parties’ marks in connection with their respective goods or
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`services would, or would not, be likely to cause confusion, mistake or to deceive consumers. See
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`15 U.S.C. § 1052(d); Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d
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`1733, 1735 (TTAB 2001). In the absence of a pleaded registration, a party may establish priority
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`in a mark through common law use. Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1023
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`(TTAB 2009). “[T]o the extent opposer wishes to rely on its common law rights, it must
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`establish priority with respect to such rights. That is, opposer must prove by a preponderance of
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`the evidence that its common law rights were acquired before any date upon which applicant
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`may rely.” Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825, 1834 (TTAB 2013).
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`Even if it does not claim ownership of a registration, a licensee may rely on its own common law
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`use of a mark to establish its priority. See Chicago Bears Football Club Inc. v. 12th
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`Man/Tennessee LLC, 83 USPQ2d 1073, 1075 (TTAB 2007) (“Thus, opposers [comprising owner
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`and licensee of registration] have also established priority as to their common law use”); Avia
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`Grp. Int’l Inc. v. Faraut, 25 USPQ2d 1625, 1627 (TTAB 1993) (“Further, the issue in a
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`proceeding such as this is what rights petitioner has in its pleaded marks vis-à-vis the defendant,
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`not what rights anyone else may have in it.”). Any doubt regarding likelihood of confusion “must
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`be resolved against the newcomer.” Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d
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`1565, 1571, 218 U.S.P.Q.2d 390, 395 (Fed. Cir. 1983).
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`C. A Triable Issue of Fact Exists about Whether Opposer’s Alleged
`Common Law Mark “MOM” Has Acquired the Status of a Trademark
`with Priority over Applicant’s MOM’S MEALS Marks
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`The Board should deny Applicant’s Motion because a genuine dispute of material fact
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`exists as to whether Opposer has priority rights for the MOM Mark. To establish priority of an
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`unregistered mark, “opposer must establish [ ] ownership and prior use, under common law, of a
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`distinctive, inherently or otherwise, mark in connection with the pleaded [goods or services].”
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`Ami Bryn v. Culinaria, Ltd., Opp. No. 91189139, 2012 WL 1267959, at *4 (T.T.A.B. Mar. 30,
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`2012) (nonprecedential) (citing Giersch, 90 U.S.P.Q. at 1023); Otto Roth & Co v. Universal
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`Foods Corp., 640 F.2d 1317 (C.C.P.A. 1981)); See Hydro-Dynamics Inc. v. George Putnam &
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`Company Inc., 811 F.2d 1470, 1 U.S.P.Q.2d 1772 (Fed. Cir. 1987) (in a case involving common-
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`law rights, the Board must make its decision as to priority “in accordance with the preponderance
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`of the evidence”). Prior use in commerce, as a trade name, prior use analogous to trademark use,
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`or any other use sufficient to establish proprietary rights are all capable of supporting a claim of
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`priority on a likelihood of confusion claim. See Herblco Int’l, Inc. v. Kappa Books, Inc., 308
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`F.3d 1156 (Fed. Cir. 2002); T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372 (Fed. Cir. 1996),
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`vacating Pac Tel Teletrac v. T.A.B. Sys., 32 U.S.P.Q.2d 1668 (T.T.A.B. 1994). The Federal
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`Circuit has emphasized that when an opposer seeks to prove first use prior to that of the
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`applicant, the totality of the evidence of prior use should be weighed. See West Florida Seafood,
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`Inc. v. Jet Restaurants, Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994). Declaration
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`testimony accompanied by corroborating evidence, if sufficiently probative, may suffice to
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`establish priority. Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB
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`2007).
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`Opposer’s Common Law MOM Mark is distinctive or, at the very least, has acquired
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`distinctiveness. Opposer has submitted ample documentary and testimonial evidence to establish
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`that “MOM” is inherently distinctive as an abbreviation for MY OWN MEALS, and it has
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`acquired distinctiveness in the Common Law MOM Mark. See Composite Exhibit 2. Through
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`the Declaration of Mary Anne Jackson, Opposer has presented clear, consistent, convincing and
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`uncontradicted evidence which shows that as early as 1986, Opposer had been using MOM as an
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`acronym for MY OWN MEALS. Id. Various types of evidence can be considered to determine if
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`a mark has acquired distinctiveness. In re Steelbuilding.com, 415 F.3d 1293 (Fed. Cir. 2005)
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`(materials that the Board may examine include copying, sales success, unsolicited media
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`coverage, and other items).
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`The purchasing public has come to associate the Common Law MOM Mark with
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`Opposer and the MY OWN MEALS shelf stable prepackaged meals and brand. See Composite
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`Exhibit 2. The Common Law MOM Mark is frequently used to refer to Opposer and has been
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`associated with MY OWN MEALS from as early as 1986 through PR campaigns, news articles,
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`and several declarants. See Exhibits 4-5. Opposer’s trademark use of the Common Law MOM
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`Mark clearly predates Applicant’s first use in commerce of the MOM’s MEALS Marks.
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`Applicant has explicitly admitted that it first used the MOM’S MEALS Marks on or around
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`1999. See Applicant’s Motion for Summary Judgment, pg. 3. Beginning as early as 1987 and
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`well prior to the filing date of the MOM’S MEALS Applications and Applicant’s admitted first
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`use date, Opposer has used the Common Law MOM Mark in commerce continually in
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`connection with shelf stable prepackaged meals, thereby establishing its prior use of the brand
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`and mark. In sum, even if Applicant began using the MOM’S MEALS marks in September 1999,
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`it cannot prove its entitlement to summary judgment on the issue of priority.
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`D. Applicant’s Tacking Argument Does Not Apply
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`For priority purposes, a trademark owner can “tack” its later use of a mark onto its prior
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`uses of a mark if those marks are “legal equivalents.” Marks are legally equivalent if they create
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`“‘the same, continuing commercial impression’ and the later mark [does] not materially differ
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`from or alter the character of the mark attempted to be ‘tacked,’” thereby causing “consumer[s]
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`[to] consider both as the same mark.” Van Dyne-Crotty, Inc. v. Wear-Guard Corp., 926 F.2d
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`1156, 1159 (Fed. Cir. 1991). Because “‘[t]he commercial impression that a mark conveys must
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`be viewed through the eyes of a consumer,’” tacking is a “fact-intensive” issue properly left to
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`the jury.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1166-67 (9th Cir. 2013), aff’d, 135 S.
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`Ct. 907 (2015); see Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
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`Millennium Sports, S.L.U., 797 F.3d 1363, 1369 (Fed. Cir. 2015) (recognizing that Hana
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`Financial “abrogate[ed] our practice of viewing this inquiry as a question of law subject to de
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`novo review”). Thus, only if “the facts warrant it, [may] a judge [or the Board] . . . decide a
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`tacking question on a motion for summary judgment.” Hana Fin., 135 S. Ct. at 911. The standard
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`for tacking is very strict, and tacking in general is permitted only in “rare instances.” See Wet
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`Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1635 (TTAB 2007).
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`At a minimum, the tacking question raises genuine issues of material fact for trial. See
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`Simply S. Fine Art & Home Décor, LLC v. Dazzle Up, LLC, No. 91224533, 2017 WL 4326018,
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`at *4 (T.T.A.B. Sep. 26, 2017) (nonprecedential) (“Dazzle Up has not met its burden of
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`establishing that there is no genuine dispute as to priority. At a minimum, there exist genuine
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`disputes as to . . . whether SIMPLY SOUTHERN is the legal equivalent to Dazzle Up’s
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`allegedly previously-used SIMPLY SOUTHERN CHIC mark.”); Czechpoint, Inc. v. Ceska
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`Zbrojovka A.S., No. 92057153, 2015 WL 9913820, at *5 (T.T.A.B. Aug. 14, 2015)
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`(nonprecedential) (“Furthermore, there is a genuine dispute on summary judgment as to whether
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`Applicant is legally entitled to rely on its tacking defense. Specifically, the parties genuinely
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`dispute whether the registered mark CZ SCORPION, and the mark SKORPION, are ‘legal 19
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`equivalents,’ meaning that they create the same continuing commercial impression such that
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`consumers consider them to be the same mark. This is a question of fact for trial.”).
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`Here, Applicant’s tacking argument does not apply because Opposer has priority rights in
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`the MOM marks. Despite Applicant’s ability to show that it can trace the filing date back to May
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`12, 1999, that is still later than Opposer’s first registration date of December 29, 1987 claiming a
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`first use of April 2, 1987. Moreover, Applicant’s MOM’S MEALS Reg. No. 2,430,824 (subject
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`of the Petition for Cancellation) does not cover shelf-stable meals, but rather restaurant services
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`and the delivery of home cooked meals (the opposite of shelf-stable prepackaged meals). A
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`genuine issue of material fact exists as to whether Applicant’s pending mark can tack to a
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`registration with different services (it cannot). In sum, even if Applicant began using the
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`MOM’S MEALS marks in May or September 1999, it cannot prove its entitlement to summary
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`judgment on the issue of tacking because its priority rights do not apply, nor can it tack to a
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`registration with different services.
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`CONCLUSION
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`WHEREFORE, the Opposer, My Own Meals, Inc., respectfully requests the Board deny
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`Applicant’s Motion to Summary Judgment in its entirety and remove the suspension so
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`discovery can continue and Respondent may respond to the Amended Petition for Cancellation
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`in the Cancellation proceeding.
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`Date: April 30, 2021
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`Respectfully submitted,
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`By:/s/ Michele S. Katz
`One of its attorneys
`Michele S. Katz, Esq.
`Advítam IP, LLC
`150 South Wacker Drive
`Suite 2400
`Chicago, IL 60606
`Phone: (312) 332-7710
`Fax:
`(312) 332-7701
`mkatz@advitamip.com
`Firm No. 49440
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`CERTIFICATE OF SERVICE
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`I hereby certify that the above and foregoing OPPOSER’S RESPONSE TO
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`APPLICANT’S COMBINED MOTION FOR SUMMARY JUDGMENT IN OPPOSITION
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`AND MEMORANDUM IN SUPPORT was served upon Applicant by electronic mail, on this
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`/s/ Michele S. Katz
`Michele S. Katz
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`30th day of April, 2021, addressed to:
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`Wendy K. Marsh
`Allison E. Kerndt
`NYEMASTER GOODE, P.C.
`700 Walnut Street, Suite 1600
`Des Moines, Iowa 50309
`Philadelphia, Pennsylvania 19103
`Telephone: (515) 645-5502
`Facsimile: (515) 283-8045
`Email: wkmarsh@nyemaster.com
`Email: aekerndt@nyemaster.com
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`Attorneys for Applicant
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`EXHIBIT 1
`EXHIBIT 1
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`To Whom It May Concern:
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`DECLARATION OF MARY ANNE JACKSON
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`I, Mary Anne Jackson, submit this declaration upon personal knowledge and/or upon
`information and belief
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`1.
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`In the summer of 1986, I founded and remain President of My Own Meals, Inc.,
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`incorporated in Delaware on October 31, 1986 and operating in Deerfield, IL since 1986.
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`2. Prior to starting-up this corporation, I spent eight years as a food industry executive at
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`then, Beatrice Companies, Inc. (Chicago, IL), which at the time wasone ofthe largest
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`international food and consumer products conglomerates in the world, and which was sold
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`in 1986. Myroles included, Corporate and SEC Accounting & Consolidations; Mergers,
`Acquisitions and Divestitures; Corporate Financial Planning; Operations Profitability
`Recovery; and Corporate Strategic Planning. My final role was at the Swift-Eckrich
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`subsidiary as its Operations Planning Director.
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`3.
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`In starting up My Own Meals,Inc., I drew upon myexperience at Beatrice (see #2 above)
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`and knew how important an acronymis in the food industry and carefully chose “My Own
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`Meal”as our trademark brand name which would carry the acronyms of “MOM”and
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`“M.O.M.”. That decision was deliberate and core to our business, P.R. and marketing
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`plans. In fact, I selected the acronym before the brand name.
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`4. The Company Name, Brand Names and Acronyms were prominent in our first and then
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`all subsequent Business Plans and Private Placements used to attract private equity
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`investors.
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`5. Since as early as 1988 as the Company founder and spokesperson, I spoke at and was
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`recognized as a leader at women’s groups, entrepreneur groups, universities, industry
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`associations, government Public Voice for Food Policy, nutrition and health groups,
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`Page 1
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`Jewish and Muslim groups, military groups, food technology groups, food service groups,
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`and industry groups, etc. Our Company and Brands werecase studies in University text
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`booksand videos. I actively presented our Company,its Brand Namesand Productsto all
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`these types of groups having created a new category in the food industry for consumers,
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`that of shelf stable meals and of children’s nutritious meals.
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`. Further, as spokesperson, my messages generated Company and Brandcredibility and
`visibility through ourextensive Public Relationsstrategies appearing in many hundreds of
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`TV, radio, newspaper, consumer magazines,trade journals, etc. I successfully became the
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`consumer-relatable, and industry personification of MOM, M.O.M.and My Own Meals.
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`Our initial distribution in 1987 was via Direct Mail sales moving into and adding grocery
`stores nationwide beginning in 1988. Supporting this distribution, our marketing included
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`TV,radio, direct mail, print and outdoor advertising as well as couponing, consistent with
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`our PR and spokesperson messaging. We also pursued non-traditional,
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`innovative
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`consumer outlets such as KinderCare and ToysRUs with special marketing and
`distribution programs directed to their consumers’ interests.
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`We modified our distribution and marketing beginning in 1991 after Desert Storm
`impacted our supply chain,still focusing on shelf stable meals, our brand names, and
`keeping me as our spokesperson. We added food service customers serving our
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`consumers, as well as the US Government and Military by modifying product
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`formulations to include both adult and children consumer groups. We specifically added
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`and attracted kosher, halal, gluten-free, allergy-concerned, vegetarian and similar
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`consumers.
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`Building upon our dietary and nutrition expertise, we created meal programs and menus
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`for food service purveyors, and co-authored or contributed to books and articles to aid
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`them in successfully and specifically meeting the demands of these consumers with our
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`My Own Meal (M.O.M. and MOM)branded meals and programs. We became thefirst
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`company to dual certify our vegetarian meals as both kosherand halal which helped meet
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`the needs of more consumer groupsutilizing fewer Stock Keeping Units (SKUs), which
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`wasattractive to retail, direct marketing and food service customers. Our marketing to
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`consumersleveraged our long-timecredibility and confidence in our Brands and Company
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`to help them acceptthe novel, dual-certification of our meals. We successfully established
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`our Products and Company throughout the country as known for our family of Brand
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`10.
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`Names,a position we continueto carry today.
`Then in December 1990,
`the US Defense Logistics Agency (DLA) contacted our
`Company to create a kosher military ration (MRE). We continued to pursue this MRE
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`and after more than five years of dealing with DLA bureaucracy, Congress, Religious
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`Groups,
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`Industry Groups, Manufacturers, Competitors, we convinced the DLA to
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`implement the My Own Meals MRE program as an innovative, commercial ration where
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`we, as defense contractors, were responsible for distribution and logistics.
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`I personally
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`met with the various military services, both at the Pentagon andat selectfield locations,
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`to educate officials about the ration program, and worked with procurement officers to
`inform them of the military-funded procurement process to follow within the military
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`procurement system. This type of program had never before existed in military history.
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`11.
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`Our marketing innovation in this military program continued.
`Inevery ration clear bag,
`we include an insert to describe its contents. Onthe reverse side ofthat insert, we write a
`Letter from “M.O.M.™”to promotethe use of our acronym brandfor our ration. As much
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`as the food industry uses acronyms,the military uses them more. Writings from “M.O.M.”
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`bring a bit of comfort, home andfeelings of security to the receiving soldier in theater,
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`Page 3
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`

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`further strengthening our Brands and Product ‘images. This marketing message is
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`consistent with our Product and Company Marketing Strategies to a new consumer and
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`customer group. The Pentagonfirst approvedthe Letter’s inclusion on November8, 1993,
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`another innovation neverbefore included in military ration history.
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`12.
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`Our family of Brand Names becamethe informal names used to reference our meals and
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`ration program. Officially they were Religious MREs. Unofficially and as used by
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`contracting and supply officers, and soldiers around the world, they were referred to as
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`MOM,M.O.M., MOM’S, MOM MRES, MOMS, MOM MEALSandour meal service
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`and distribution program as the My Own Mealsration program. Wehave always used
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`these Brand Names which became synonymous and recognized for the quality of our
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`meals andfor the service we provided to the US Military food service programs.
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`13.
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`In 1994, the US Department of Justice looked to our well-known and respected Brands
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`and Company(see paragraph #3) to successfully solve its food service needs, specifically
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`for religious, kosherand halal dietary consumers. Our ads continue to appear in calendars
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`used by inmates and procurementofficers in the US Bureau of Prisons.
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`14
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`. Our strong Branded Product and Service reputation continued into other agencies
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`including FEMAfor hurricane relief, DHS and CBPforfield support, firefighters, State
`and Local Governments and Institutions, the General Services Administration website
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`(GSA Advantage), FedMall (DLA website), and private distributors and institutions,
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`~ among others.
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`15. Asthe internet grew, our family of Brand Namesand Services (paragraph #3) developed
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`distribution to consumers directly and through on-site web distributors, such as
`- Amazon.com. Wecontinue to offer our meals through our Company-owned websites as
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`well.
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`' Page 4
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`

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`16. Our Marketing evolvedto include internet marketing, informing consumers and customers
`of our Products and Services through our websites and on non-Company websites.
`
`17. Our food service customers seeking our Branded Products require fully prepared meals
`they trust when making a purchase decision.
`|
`
`I believe that our efforts from 1986 to today, have successfully made our Company, Brand Names,
`Services, and Trademarks for our Goods and Services well-known, and well-respected as reliable and —
`desirable to consumers, food service purveyors, US Military services, as well as to US, State & Local
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`Governments.
`
`I declare under penalty of perjury that the foregoing statements are true and correct.
`
`
`
`My Own Meals,Inc.
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`Page 5
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`EXHIBIT 2
`EXHIBIT 2
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`

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`Partial listing of PDF copies of articles documenting use of MOM and M.O.M. by year.
`
`INC Magazine Cover Story
`1988
`1988 KPMG News Just like MOM would make
`1989 The Star Article that MOM means meals
`1989 Business Week on Shelf Space Costs
`1989 Chicago Tribune She sells MOMS home cooking
`1989 Capital Times, WI MOM offers
`1989 Food Engineering Retort product MOM
`1989
`Income Plus Magazine Success Story Article
`1989 Poultry Magazine MOM Inc.
`1989 Food & Beverage Marketing – Marketer of the Year - A M.O.M. for all seasons
`1989 Wealth Magazine
`1989 Family Circle Magazine From Unemployed to Entrepreneur
`1989 Food & Beverage Marketing Kids Meals Go Big Time
`1989 Product Specification Manual from contract packer excerpt
`1989 MOM Ad and Coupon example
`1990 Chicago SunTimes M.O.M.
`1990 Food & Beverage Marketing M.O.M. No Nothing
`1990 Convenience Store Decisions
`1990 AdWeek MOM makes microwaveable history
`1990 Crains Chicago Business 40 under 40
`1990 North Shore MOM girds for Battle
`1990 PR Backgrounder info
`1990 PR On Price Change
`1990 USA Weekend Target Kids Meals
`1991 Entrepreneurial Woman Cover story
`1991 Chicago Tribune Mother of MOM
`1991 Talking to the Boss M.O.M.s the word
`1991 PR on Kosher
`1992 Cleveland Plain Dealer MOMs cooking
`1993
`INC Speech San Francisco
`1993 PR Kosher Market
`1993 PR Backgrounder
`1993 Public Voice Speech in Washington DC
`1995 Herald Tribune Florida Multi-Faith Meals
`1995 Newspaper Article Florida papers
`1995 PR Adult and Kids
`1996 Feingold on military
`1997 Military Defense Logistics Agency Thanks on Magazine
`1998 Harvard Letter
`2000 Kolot Jewish Voices on Kosher MOM rations
`2006 NJBIZ Kosher MREs – MOM dropped Passover offerings
`2007 Jewish Review Kosher MREs to troops
`2013 Department of Defense Email ref to MOM
`2019 Email from Institutional customer
`
`

`

`
`
`
`
`EXHIBIT 3
`EXHIBIT 3
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`

`

`CONFIDENTIAL - ATTORNEYS EYES ONLY
`
`Page 1
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` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`_________________________________________________
`
` MY OWN MEALS, ) Opposition No: 91254642
`
` INC.,
`
`)
`
`Opposer, ) In the matter of:
`
`) Application Serial No.88/611,072
`
`vs.
`
`)
`
`) Mark: MOM'S MEALS
`
` PURFOODS, LLC, )
`
`Applicant. ) Application Date: 9/10/2019
`
`_________________________________________________
`
`______________________
`
`MY OWN MEALS, INC., )
`
`Petitioner,)
`
`) Reg. No.: 4,316,266
`
`vs. ) Reg. No.: 2,430,824
`
`)
`
`PURFOODS, LLC, ) Cancelation No.92/073,705
`
`Registrant/Respondent.)
`
`The videoconference deposition of
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`MICHAEL LEE ANDERSON, taken before Julie Walsh,
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`CSR and Notary Public, pursuant to the Federal
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions
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`

`CONFIDENTIAL - ATTORNEYS EYES ONLY
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`Page 2
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`Page 4
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`1 INDEX
`2 WITNESS EXAMINATION BY PAGE
`3 Mr. Anderson Ms. Katz 07
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`4 5 6 7 8 9
`
`10 E X H I B I T S (Previously Marked) PAGE
`11 Plaintiff's Exhibit No. 6 - Trademark 107
`12 Assignment
`13 Plaintiff's Exhibit No. 7 - Logo Timeline 51
`14 Plaintiff's Exhibit No. 8 - Screenshot 75
`15 Mom's Meals
`16 Plaintiff's Exhibit No. 15 - Notice of 28
`17 Opposition
`18 Plaintiff's Exhibit No. 16 - Answer to 29
`19 Opposition
`20 Plaintiff's Exhibit No. 19 - Article 41
`21
`22
`23
`24
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`1 Rules of Civil Procedure for the United States
`2 District Courts pertaining to the taking of
`3 depositions, at 3210 South East Corporate Woods
`4 Drive, Ankeny, Iowa, at 10:00 a.m. on the 16th
`5 day of September, A.D., 2020.
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`6 7 8 9
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`22 Reporter: Julie Walsh
`23 CSR No. 084-004032
`24
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`Page 5
`1 E X H I B I T S (Newly Marked) PAGE
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`2 3
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` Plaintiff's Exhibit No. 27, id - 19
`4 Opposition Second Amended Notice of Dep,
`5 Corporate Rep
`6 Plaintiff's Exhibit No. 28, id - 19
`7 Opposition Amended Notice of Dep
`8 Plaintiff's Exhibit No. 29, id - 19
`9 Cancellation Second Amended Notice of Dep,
`10 Corporate Rep
`11 Plaintiff's Exhibit No. 30, id - 19
`12 Cancellation Amended Notice of Dep
`13 Plaintiff's Exhibit No. 31, id - 1999 44
`14 Mom's Meals Application Filing
`15 Plaintiff's Exhibit No. 32, id - E-Mail 77
`16 Chain, July Kosher Project Meeting
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`20
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`Page 3
`1 APPEARANCES VIA VIDEOCONFERENCE:
`2 ADVITAM IP, LLC
`3 BY: MS. MICHELE S. KATZ
`4 150 South Wacker Drive
`5 Suite 2400
`6 Chicago, Illinois, 60606
`7 312-332-7700
`8 Mskdocket@advitamip.com
`9
`10 On behalf of the Opposer and
`11 Petitioner;
`12
`13 NYEMASTER GOODE, PC
`14 BY: MS. ALLISON E. KERNDT
`15 MS. WENDY K. MARSH
`16 700 Walnut
`17 Suite 1600
`18 Des M