Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA Tracking number:
`ESTTA1087019
`10/07/2020
`
`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
`Granted to Date
`of previous ex-
`tension
`Address
`
`Correspondence
`information
`
`CVS Pharmacy, Inc.
`10/07/2020
`
`ONE CVS DRIVE, MAIL CODE: 1160
`WOONSOCKET, RI 02895
`UNITED STATES
`
`MIRIAM D. TRUDELL
`SHERIDAN ROSS P.C.
`1560 BROADWAY, SUITE 1200
`DENVER, CO 80202
`UNITED STATES
`Primary Email: mtrudell@sheridanross.com
`Secondary Email(s): cbryce@sheridanross.com
`3038639700
`
`Applicant Information
`
`Application No.
`Opposition Filing
`Date
`Applicant
`
`88791056
`10/07/2020
`
`Publication date
`Opposition Peri-
`od Ends
`
`06/09/2020
`10/07/2020
`
`Gazoo Global Enterprises
`20174 WHARF STREET
`MAPLE RIDGE, BC, V2X1A1
`CANADA
`Goods/Services Affected by Opposition
`
`Class 005. First Use: 2019/05/01 First Use In Commerce: 2019/08/21
`All goods and services in the class are opposed, namely: Medicated skin care preparations; acne
`treatment preparations
`
`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.
`Registration Date
`
`5443768
`
`04/10/2018
`
`Application Date
`
`12/02/2015
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`The mark consists of a solid heart shape.
`
`Class 003. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`A full line of oral hygiene products, namely, tooth cleaning and tooth whitening
`preparations, toothpastes, breath freshening sprays, tooth whitening prepara-
`tions in the form of rinses, tooth whitening preparations contained in a pen-
`shaped container, tooth whitening toothpaste;tooth whitening strips impregnated
`withteeth whitening preparations, tooth whitening gels, and teeth whitening kits;
`non-medicated mouth wash and rinses; non-medicated anti-cavity fluoride
`mouth rinses, dissolvable breath freshening strips; denture products, namely,
`denture cleaners in the form of tablets, and denture cleaning preparations in the
`form of acream; a full line of hair care products, namely, shampoos, condition-
`ers, hair-detangling lotions; skin lotions for theface and body; body lotions and
`skin lotions containing aloe vera for skin careand cosmetic purposes; skin lo-
`tions containing vitamin E; baby skin lotions; cold creams; face and neck
`creams; skin soaps for personal use, namely, antibacterial, bath, hand, body
`care, liquid, baby, and bar soaps; powders, namely, foot, bath, baby, and talcum
`powder containingcorn starch; bath products, namely, bath oils, body wash for
`use in baths; disposable wipes impregnated with cleansing chemicals or com-
`pounds for personal hygiene and baby; essentials oils for personal use, namely,
`baby, muscle massage, and skin; foam cleaning preparations; cosmetic exfoli-
`ants, namely, pumice stones for personal use; non-medicated lip balms; cosmet-
`ic sun protection products, namely, cosmetic sunscreen body sprays, sunscreen
`lotions; petroleum jelly for cosmetic purposes; facial cleansers and scrubs; body
`wash; non-medicated diaper rash ointments
`Class 005. First use: First Use: 2015/01/31 First Use In Commerce: 2015/01/31
`Antibacterial alcohol skin sanitizer gels; medicated anti-cavity fluoride
`mouthrinses, cold sore and canker treatment preparations; medicated foot
`powders; antiseptic sprays and lotions; hemorrhoidal gels, suppositories, sprays,
`creams and ointments; medicated pads for hemorrhoid relief; bacitracin oint-
`ments; hydrocortisone creams; calamine lotions; medicated diaper rash oint-
`ments; preparation for the relief of pain, namely, pain relief medications in the
`forms of sprays and lotions; antibiotic creams and ointments; petroleum jelly for
`medical purposes; natural sleep aid preparations; a fullline of medicines, remed-
`ies and preparations, namely, pharmaceutical antitussive-cold preparations, pre-
`parations for treating colds, headache treatment preparations, allergy relief med-
`ication, analgesics, preparations in tablet forms for treating colds, cough treat-
`ment preparations in the nature of cough suppressants,cough syrups and drops,
`medicated throat sprays, medicinal creams and ointmentsfor the treatment of
`colds, flu, headache and allergy symptoms; decongestants, antihistamines, ex-
`pectorants, ibuprofen for use as an oral analgesic, acetaminophen, and combin-
`ations of aspirin and caffeine, concentrated saline tablets for sinus discomfort,
`pharmaceutical preparations in the nature of naproxen sodium for medical pur-
`poses, bismuth subsalicylate preparations for medical purposes, pain relief med-
`ications, throat lozenges; medicated preparation for teething pain; antacids and
`acid reducers consisting primarily of antacids; anti-diarrheal and anti-gas medic-
`ations; aspirin; anti-inflammatories, baby diapers and disposable training pants;
`nursing pads; nasal products, namely, decongestant nasal strips and inhalers
`filled with Levmetamfetamine; ear drops; eye products, namely, eye patches for
`medical purposes, eye lubricating drops, irrigating solutions for eye use and eye
`washes, eyeglass lens cleaning solutions, eyeglass lens cleaning kits consisting
`primarily of eyeglass lens cleaning solutions; contact lens solutions and contact
`lens cleaning preparations; home-use diagnostic kits consistingprimarily of test
`strips, test sticks and digital test sticks that test for thepresence of urinary tract
`infections, pregnancy, and ovulation; personal lubricants; first aid kits; lice treat-
`ment preparations; smoking cessation preparations in the forms of lozenges and
`
`

`

`nicotine gum; transdermal patches featuring smoking cessation preparations
`that contain nicotine; caffeine preparations for stimulative use; acne treatment
`medication; infant formula; electrolyte drinks for medical purposes; wart remov-
`ing preparations; test strips for measuring blood glucose levels; glucose dietary
`supplements;medicinal hair growth treatments; medicated shampoo; disposable
`wipes impregnated with alcohol for medicinal purposes; iodine; hydrogen perox-
`ide for medical use; witch hazel, epsom salts, saline solution for medical pur-
`poses, suppositories; laxatives; medicated oils containing minerals; dietary sup-
`plements in the nature of liquid magnesia for nutritional purposes; stool softener;
`motion sickness treatment preparations; a full line of non-medicated feminine
`care and hygiene products, namely, tampons, panty liners, vaginal moisturizers,
`vaginal washes; diuretics; bandages for dressings; gauze; adhesive tapes for
`medical purposes; burn relief medications, namely, burn dressings in the form of
`sprays and pads; foot treatments, namely, athlete's foot preparations, corn rings
`for cushioning thefeet, corn pads, moleskin for medical purposes, orthopedic
`padding consisting primarily of lamb's wool; oral hygiene products, namely, med-
`icated toothpaste, oral anesthetics, oral antiseptics; a fullline of incontinence
`products, namely, disposable diapers for incontinence, incontinence garments,
`incontinence pads, disposable sanitizing wipes impregnated with chemicals or
`compounds, medicated pre-moistened wipes; enema preparations, medicated
`skin lotions for healing purposes; medicated skin lotions for preventing stretch
`marks; scar treatment preparations, namely, bandages for skin wounds
`Class 006. First use: First Use: 2017/01/26 First Use In Commerce: 2017/01/26
`Metal medical information identification bracelets, not magnetically encoded and
`not to function as jewelry
`Class 008. First use: First Use: 2016/02/28 First Use In Commerce: 2016/02/28
`Pedicure implements, namely, nail clippers, callous removers, and foot files; nail
`files; eyeglass repair kits consisting primarily of screwdrivers, screws, storage
`pouch and a magnifier
`Class 009. First use: First Use: 2016/03/28 First Use In Commerce: 2016/03/28
`Body scales; eye care accessories, namely, contact lens case; batteries
`Class 010. First use: First Use: 2015/02/28 First Use In Commerce: 2015/02/28
`Vaporizers and humidifiers for medical purposes; medical apparatus, namely,
`cervical collars, urinals, orthopedic cushions, stethoscopes, an ear wash device
`inthe nature of a container to be filled with appropriate fluid for user for flushing
`ear wax from the ear; mouth guards for medical purposes; ear plugs for medical
`purposes; face masks for use by health care providers; latex-free gloves formed-
`ical purposes; lancets; health monitoring devices, namely, pulse oximeters;
`rollators; canes for medical purposes and crutches; dental instruments, namely,
`dental picks, scalers and mirrors; pill and tablet cutters and crushers; pill splitters
`for dispensing unit doses of medicine; droppers for administering medication,
`sold empty; bottles, spoons and cups for administering medication, sold empty;
`chemically activated hot and cold gel packs for medical purposes; medical ap-
`paratus, namely, electric heating devices for curative treatment; arm slings for
`medical use; finger splints; lice combs; therapeutic hot and cold compression
`wraps for the relief of pain; silicone gel sheeting for the treatment of scars; ortho-
`pedic device to stretch and exercise the toes; thermometers for medical use; pill
`crushers; foot care implements, namely, orthotic inserts for footwear, orthopedic
`cushions; bath safety equipmentin the nature of raised toilet seats adapted for
`use by the physically disabled; sheet protectors, namely, incontinencesheets
`Class 011. First use: First Use: 2015/02/28 First Use In Commerce: 2015/02/28
`Humidifiers
`Class 020. First use: First Use: 2016/04/30 First Use In Commerce: 2016/04/30
`Bath chairs as bath safety products adapted for use by the physically dis-
`abled;foot care implements in the nature of foot rests
`Class 021. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`
`

`

`Oral hygiene devices, namely, toothbrushes, toothbrush heads, dental floss,
`dental flossers, dental floss picks featuring a brush, and dental care kits consist-
`ing primarily of toothbrushes and toothpaste; personal dispensers for pills or
`capsules for domestic use; cotton balls; foot brushes; dental tape
`Class 025. First use: First Use: 2016/02/28 First Use In Commerce: 2016/02/28
`Foot care implements, namely, heel inserts and insoles; cotton gloves
`
`U.S. Registration
`No.
`Registration Date
`
`5464994
`
`05/08/2018
`
`Application Date
`
`12/02/2015
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`The mark consists of an outlined heart shape.
`
`Class 003. First use: First Use: 2015/09/30 First Use In Commerce: 2015/09/30
`Skin soaps for personal use, namely, antibacterial, hand, and liquid soaps
`Class 005. First use: First Use: 2015/01/31 First Use In Commerce: 2015/01/31
`Cold sore and canker treatment preparations; antiseptic sprays; a full line of
`medicines, remedies and preparations, namely, allergy relief medication; decon-
`gestants; ear drops; home-use diagnostic kits consisting primarily of test
`strips,test sticks and digital test sticks that test for the presence of urinary tract-
`infections, pregnancy, and ovulation; first aid kits; test strips for measuringblood
`glucose levels; medicated shampoo; disposable wipes impregnated with alcohol
`for medicinal purposes; iodine; hydrogen peroxide for medical use; witch hazel,
`saline solution for medical purposes; bandages for dressings; gauze; adhesive
`tapes for medical purposes; burn relief medications, namely, burn dressings
`inthe form of sprays and pads; oral hygiene products, namely, medicated tooth-
`paste, oral anesthetics, oral antiseptics; disposable sanitizing wipes impreg-
`nated with chemicals or compounds, medicated pre-moistened wipes; scar treat-
`ment preparations, namely, bandages for skin wounds
`Class 009. First use: First Use: 2016/03/31 First Use In Commerce: 2016/03/31
`Body scales
`Class 010. First use: First Use: 2015/02/28 First Use In Commerce: 2015/02/28
`Medical apparatus, namely, stethoscopes, an ear wash device in the nature of a
`container to be filled with appropriate fluid for user for flushing ear wax fromthe
`ear; face masks for use by health care providers; latex-free gloves for medical
`purposes; lancets; health monitoring devices, namely, pulse oximeters; dental
`instruments, namely, dental picks, scalers and mirrors; droppers for administer-
`ing medication, sold empty; spoons foradministering medication, sold empty; fin-
`ger splints; silicone gel sheeting forthe treatment of scars
`Class 025. First use: First Use: 2015/08/31 First Use In Commerce: 2015/08/31
`cotton gloves
`
`U.S. Registration
`No.
`Registration Date
`
`5402011
`
`02/13/2018
`
`Application Date
`
`06/09/2015
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`CVSHEALTH
`
`The mark consists of a solid heart shape appearing before the words
`"CVSHealth".
`Class 003. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`
`

`

`Non-medicated oral hygiene products, namely, tooth cleaning and whitening
`preparations, toothpastes, breath freshening sprays, tooth whitening strips im-
`pregnated with tooth whitening preparations, tooth whitening gels, dissolvable
`breath freshening strips, tooth whitening toothpaste, non-medicated mouthwash
`and rinse;denture products, namely, denture cleaners in the form of tablets, and
`denture cleaning preparations in the form of a cream; tooth whitening kits; cloths
`or tissues impregnated with a skin cleanser
`Class 005. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`Oral anesthetics; oral antiseptics; medicated toothpaste; pre-filled dental trays
`for applying whitening compositions to teeth; muscle relaxants; ichthammol
`salve; multipurpose medicated antibiotic cream, analgesic balm and
`mentholated salve; topical analgesic creams; medicinal creams for skin care;
`lice treatment preparations; antacids and acid reducers consisting primarily of
`antacids; anti-diarrheal and anti-gas medications; hemorrhoid treatment prepar-
`ations; laxatives; suppositories; dietary supplements in thenature of liquid mag-
`nesia for nutritional purposes; stool softeners; dietary fiber to aid digestion; en-
`ema preparations; Epsom salts; mineral salts for medicalpurposes; motion sick-
`ness treatment preparations; dietary fiber and probiotic supplements; antibiotic
`creams, sprays and ointments; petroleum jelly for medicalpurposes; anti-itch
`creams; anti-bacterial hand sanitizers; wart removing preparations; astringents
`for medicinal purposes; hydrocortisone; antiseptic creams and ointments; alco-
`hol for medicinal purposes; disposable wipes impregnated with alcohol for medi-
`cinal purposes; oils formedical purposes; anti-fungal creams and ointments; hy-
`drocortisone cream and ointment; witch hazel
`Class 010. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`Oral hygiene devices in the nature of dental instruments, namely, inter- dent-
`alcleaners, scalers, dental mirrors, dental guards, oral irrigation dental apparat-
`us, namely, liquid-jet emitting fixtures for cleaning gum and teeth; oral care kits
`comprising tooth fillers comprised of artificial and synthetic materials; latex finger
`protectors, namely, latex finger guards for medical purposes; fingersplints; com-
`pression bandages; heat wraps for medical use; therapeutic hot and cold com-
`pression wraps for the relief ofpain; therapeutic hot and cold compression
`wraps; therapeutic apparatus, namely, chemically activated wraps, ice
`packs,compresses, and compression bandages; medicated pain pads; heating
`pads for medical purposes either chemically or electrically-activated; medical
`braces for back; arm slings for medical purposes; enema apparatus
`Class 021. First use: First Use: 2015/11/30 First Use In Commerce: 2015/11/30
`Manual and electric toothbrushes; toothbrush replacement heads; dental floss;
`dental flossers; dental care kits consisting primarily of toothbrushes, floss an-
`dtoothpaste; dental tape; oral hygiene devices in the nature of dental instru-
`ments, namely, dental floss picks
`
`U.S. Registration
`No.
`Registration Date
`
`5307113
`
`10/10/2017
`
`Application Date
`
`10/02/2015
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`The mark consists of a solid heart shape.
`
`Class 035. First use: First Use: 2015/11/05 First Use In Commerce: 2015/12/05
`Health care utilization and review services as they relate to prescription drugs,
`namely, pharmaceutical cost management and drug review utilization services,
`verification of benefits, prior authorization and review services and coordination
`of delivery and access to prescription drugs; retail store and online retail phar-
`macy services in the field of general merchandise, prescription drugs, health-
`
`

`

`care, specialty pharmaceuticals and beauty products; mail order of pharmaceut-
`icals and specialty pharmaceuticals and specialty pharmaceuticals distributor-
`ship services
`Class 036. First use: First Use: 2015/08/25 First Use In Commerce: 2015/08/25
`Claims processing of pharmaceutical insurance benefits, namely, processing
`and administering individual prescription claims history, benefit amounts, accu-
`mulations for deductibles and out-of-pocket expenses and expense summaries;
`underwriting insurance for pre-paid healthcare; insurance and financial services
`pertaining to submission of medical claims, and handling of assignment of bene-
`fits, namely, medical insurance claims administrative services, administration of
`medical and pharmaceutical reimbursement collection programs, administration
`of employeepharmaceutical benefits, administrationof prepaid employee health
`care plans, financial counseling, and payment for medical services involving
`home and hospital care; procurement, namely, purchasingpharmaceuticals for
`others; pharmacy benefit management services; organizing and administering
`preferred provider plansfor a network of pharmacy providers
`
`U.S. Registration
`No.
`Registration Date
`
`5438669
`
`04/03/2018
`
`Application Date
`
`10/02/2015
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`Mark
`Goods/Services
`
`NONE
`
`The mark consists of an outlined heart shape.
`
`Class 035. First use: First Use: 2015/08/25 First Use In Commerce: 2015/08/25
`Health care utilization and review services as they relate to prescription drugs,
`namely, pharmaceutical cost management and drug review utilization services,
`verification of benefits, prior authorization and review services and coordination
`of delivery and access to prescription drugs; retail store and online retail phar-
`macy services in the field of general merchandise, prescription drugs, health-
`care, specialty pharmaceuticals and beauty products; mail order of pharmaceut-
`icals and specialty pharmaceuticals and specialty pharmaceuticals distributor-
`ship services
`Class 036. First use: First Use: 2015/08/25 First Use In Commerce: 2015/08/25
`Claims processing of pharmaceutical insurance benefits, namely, processing
`and administering individual prescription claims history, benefit amounts, accu-
`mulations for deductibles and out-of-pocket expenses and expense summaries;
`underwriting insurance for pre-paid healthcare; insurance and financial services
`pertaining to submission of medical claims, and handling of assignment of bene-
`fits, namely, medical insurance claims administrative services, administration of
`medical and pharmaceutical reimbursement collection programs, administration
`of employeepharmaceutical benefits, administrationof prepaid employee health
`care plans, financial counseling, and payment for medical services involving
`home and hospital care; procurement, namely, purchasingpharmaceuticals for
`others; pharmacy benefit management services; organizing and administering
`preferred provider plansfor a network of pharmacy providers
`
`U.S. Registration
`No.
`Registration Date
`
`5307167
`
`10/10/2017
`
`Application Date
`
`11/10/2015
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`Design Mark
`Description of
`
`NONE
`
`The mark consists of a solid heart shape in red.
`
`

`

`Mark
`Goods/Services
`
`Class 035. First use: First Use: 2015/11/05 First Use In Commerce: 2015/12/05
`Health care utilization and review services as they relate to prescription drugs,
`namely, pharmaceutical cost management and drug review utilization services,
`verification of benefits, prior authorization and review services and coordination
`of delivery and access to prescription drugs; retail store and online retail phar-
`macy services in the field of prescription drugs, healthcare, general merchandise
`and beauty products; mail order ofpharmaceuticals and specialty pharmaceutic-
`als and specialty pharmaceuticals distributorship services
`Class 036. First use: First Use: 2015/08/25 First Use In Commerce: 2015/08/25
`Claims processing of pharmaceutical insurance benefits, namely, processing
`and administering individual prescription claims history, benefit amounts, accu-
`mulations for deductibles and out-of-pocket expenses and expense summaries;
`underwriting insurance for pre-paid healthcare; insurance and financial services
`pertaining to submission of medical claims, and handling of assignment of bene-
`fits, namely, medical insurance claims administrative services, administration of
`medical and pharmaceutical reimbursement collection programs, administration
`of employeepharmaceutical benefits, administrationof prepaid employee health
`care plans, financial counseling, and payment for medical services involving
`home and hospital care; procurement, namely, purchasingpharmaceuticals for
`others; pharmacy benefit management services; organizing and administering
`preferred provider plansfor a network of pharmacy providers
`Class 044. First use: First Use: 2016/04/20 First Use In Commerce: 2016/04/20
`Providing medical information regardingprescription drugs and drug therapy;
`providing information regarding patients' prescription drugs and drug therapy;
`developing and managing comprehensive programs comprising drug therapy
`and physician support services in the nature of providing consultation in the dis-
`pensing of pharmaceuticals for persons with chronichealth issues; medical ser-
`vices, namely, providing therapy management services relating to the provision
`of in-home andambulatory infusion therapies and nutritional therapy services;
`medical services, namely, infusion services provided athome and in clinics;
`nursing services; providing medical information concerninghemophilia; providing
`in-home and ambulatory dispensing and administering of infusion pharmaceutic-
`als and providing rheumatoid arthritis therapy services; providing consultation in
`the dispensing of pharmaceuticals and pharmaceutical advice; medical clinic
`featuring non-emergency medical diagnostic services in convenient locations
`
`Attachments
`
`Notice of Opposition.pdf(199950 bytes )
`Exhibit 1.pdf(1065539 bytes )
`
`Signature
`Name
`Date
`
`/Caroline E. Bryce/
`Caroline E. Bryce
`10/07/2020
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Trademark Application Serial No. 88/791,056
`Filed on February 10, 2020
`For the mark “MELK & Heart Design”
`Published in the Official Gazette on June 9, 2020
`________________________________________________
`CVS Pharmacy, Inc.
`
`
`
`
`
`)
`
`
`
`
`
`
`
`
`)
`
`
`Opposer,
`
`
`
`
`)
`
`
`
`
`
`
`
`
`)
`
`
`v.
`
`
`
`
`
`)
`
`
`
`
`
`
`
`
`)
`Gazoo Global Enterprises
`
`
`
`
`)
`)
`)
`
`
`
`
`Applicant.
`
`
`________________________________________________)
`
`
`Opposition No. ___________
`
`NOTICE OF OPPOSITION
`
`CVS Pharmacy, Inc., a Rhode Island corporation with its principal place of business at One
`
`CVS Drive, Mail Code: 1160, Woonsocket, Rhode Island, United States 02895, believes that it
`
`will be damaged by the registration of U.S. Trademark Application Serial No. 88/791,056 for
`
`“MELK & Heart Design” and opposes the same. As grounds for the opposition, Opposer, by and
`
`through its undersigned counsel, alleges the following:
`
`1.
`
`U.S. Trademark Application Serial No. 88/791,056 for “MELK & Heart Design”
`
`
`
`(“Applicant’s Mark”) was filed on February 10, 2020, by Gazoo Global Enterprises (“Applicant”)
`
`claiming a first use date of May 1, 2019, and first use in commerce date of August 21, 2019, for
`
`the following goods in Class 5: “Medicated skin care preparations; acne treatment preparations”
`
`(“Applicant’s Goods”).
`
`
`
`1
`
`

`

`
`
`2.
`
`U.S. Trademark Application Serial No. 88/791,056 for “MELK & Heart Design” published
`
`on June 9, 2020.
`
`3.
`
`On June 30, 2020, Opposer filed a 90-Day Request for Extension of Time to Oppose U.S.
`
`Trademark Application Serial No. 88/791,056.
`
`4.
`
`The Extension of Time to Oppose U.S. Trademark Application Serial No. 88/791,056 was
`
`granted until October 7, 2020.
`
`5.
`
`6.
`
`Opposer’s filing of this Notice of Opposition is timely pursuant to 37 C.F.R. § 2.101.
`
`Opposer is owner of numerous U.S. Trademark and Service Mark Registrations including
`
`but not limited to those enumerated below, for marks that include a heart design for, in relevant
`
`part, the goods and services identified in the table below. (Registration Certificates and TSDR
`
`status reports attached as Exhibit 1).
`
`Citation
`
`Reg. No.,
`Goods and Services
`App. Date, and
`Reg. Date
`
`Reg No.
`5443768
`App Date:
`Dec. 2, 2015
`Reg Date:
`Apr. 10, 2018
`
`Reg No.
`5464994
`App. Date:
`Dec. 2, 2015
`Reg. Date:
`May 8, 2018
`
`
`
`
`
`INT. CL. 3 SKIN LOTIONS FOR THE FACE AND BODY; BODY
`LOTIONS AND SKIN LOTIONS CONTAINING ALOE VERA FOR
`SKIN CARE AND COSMETIC PURPOSES; SKIN LOTIONS
`CONTAINING VITAMIN E; BABY SKIN LOTIONS; COLD
`CREAMS; FACE AND NECK CREAMS; SKIN SOAPS FOR
`PERSONAL USE, NAMELY, ANTIBACTERIAL, BATH, HAND,
`BODY CARE, LIQUID, BABY, AND BAR SOAPS; FOAM
`CLEANING PREPARATIONS; FACIAL CLEANSERS AND
`SCRUBS
`INT. CL. 5 ANTIBACTERIAL ALCOHOL SKIN SANITIZER GELS;
`HYDROCORTISONE CREAMS; CALAMINE LOTIONS; ACNE
`TREATMENT MEDICATION; MEDICATED SKIN LOTIONS FOR
`HEALING PURPOSES; MEDICATED SKIN LOTIONS FOR
`PREVENTING STRETCH MARKS
`
`INT. CL. 3 SKIN SOAPS FOR PERSONAL USE, NAMELY,
`ANTIBACTERIAL, HAND, AND LIQUID SOAPS
`
`INT. CL. 5 DISPOSABLE WIPES IMPREGNATED WITH
`ALCOHOL FOR MEDICINAL PURPOSES; IODINE; HYDROGEN
`PEROXIDE FOR MEDICAL USE; WITCH HAZEL; BURN RELIEF
`MEDICATIONS, NAMELY, BURN DRESSINGS IN THE FORM OF
`SPRAYS AND PADS; DISPOSABLE SANITIZING WIPES
`IMPREGNATED WITH CHEMICALS OR COMPOUNDS,
`MEDICATED PRE-MOISTENED WIPES; SCAR TREATMENT
`PREPARATIONS, NAMELY, BANDAGES FOR SKIN WOUNDS
`
`2
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`
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`First Use In
`Commerce
`Date
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`Nov. 30, 2015
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`
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`
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`Jan. 31, 2015
`
`Sep. 30, 2015
`
`
`Jan. 31, 2015
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`

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`
`
`INT. CL. 3 CLOTHS OR TISSUES IMPREGNATED WITH A SKIN
`CLEANSER
`INT. CL. 5 MULTIPURPOSE MEDICATED ANTIBIOTIC CREAM,
`ANALGESIC BALM AND MENTHOLATED SALVE; TOPICAL
`ANALGESIC CREAMS; MEDICINAL CREAMS FOR SKIN CARE
`
`Nov. 30, 2015
`
`Nov. 30, 2015
`
`INT. CL. 35 RETAIL STORE AND ONLINE RETAIL PHARMACY
`SERVICES IN THE FIELD OF GENERAL MERCHANDISE,
`PRESCRIPTION DRUGS, HEALTHCARE, SPECIALTY
`PHARMACEUTICALS AND BEAUTY PRODUCTS
`
`Dec. 5, 2015
`
`INT. CL. 35 RETAIL STORE AND ONLINE RETAIL PHARMACY
`SERVICES IN THE FIELD OF GENERAL MERCHANDISE,
`PRESCRIPTION DRUGS, HEALTHCARE, SPECIALTY
`PHARMACEUTICALS AND BEAUTY PRODUCTS
`
`Aug. 25, 2015
`
`INT. CL. 35 RETAIL STORE AND ONLINE RETAIL PHARMACY
`SERVICES IN THE FIELD OF PRESCRIPTION DRUGS,
`HEALTHCARE, GENERAL MERCHANDISE AND BEAUTY
`PRODUCTS
`
`Dec. 5, 2015
`
`
`
`Reg No.
`5402011
`App. Date:
`Jun. 9, 2015
`Reg. Date:
`Feb. 13, 2018
`
`Reg No.
`5307113
`App. Date:
`Oct. 2, 2015
`Reg. Date:
`Oct. 10, 2017
`
`Reg No.
`5438669
`App. Date:
`Oct. 2, 2015
`Reg. Date:
`Apr. 03, 2018
`
`Reg No.
`5307167
`App. Date:
`Nov. 10, 2015
`Reg. Date:
`Oct. 10, 2017
`
`
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`(Opposer’s trademark registrations collectively referred to hereinafter as “Opposer’s Marks”).
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`7.
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`8.
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`Opposer’s Marks are inherently distinctive.
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`Opposer adopted and has continuously used a number of trademarks that include the
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`Opposer’s Marks in commerce in connection with a wide variety of skin care goods and retails
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`services of skin care goods well before February 10, 2020, the filing date of Applicant’s Mark, and
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`well before Applicant’s first use of Applicant’s Mark.
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`9.
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`Opposer has devoted substantial time, money, and effort in establishing and maintaining a
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`high standard of quality of goods and services provided under Opposer’s Marks.
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`10.
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`Opposer’s Marks have become a valuable asset of Opposer, serving as a symbol of origin
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`and of identity for Opposer, its goods and services, and of the goodwill that is associated with
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`those goods and services.
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`3
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`11.
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`Opposer has standing to oppose U.S. Trademark Application No. 88/791,056 based on
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`Opposer’s ownership of Opposer’s Marks.
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`12.
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`There is no issue as to priority as the applications for Opposer’s Marks were filed and
`
`registered prior to Applicant’s filing of U.S. Trademark Application Serial No. 88/791,056 for
`
`Applicant’s Mark and Applicant’s claimed first use dates of Applicant’s Mark, and Opposer’s first
`
`use dates for Opposer’s Marks are earlier than the filing date and first use dates listed in U.S.
`
`Trademark Application Serial No. 88/791,056 for Applicant’s Mark.
`
`13.
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`Applicant’s Goods are highly similar, if not identical, and related to the goods and services
`
`identified in Opposer’s Marks.
`
`14.
`
`Consumers are likely to mistakenly believe that Applicant’s Goods are sponsored by,
`
`authorized by, endorsed, affiliated with or otherwise approved by Opposer because Applicant’s
`
`Mark is confusingly similar to Opposer’s Marks.
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`15.
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`Applicant’s Mark is likely to cause confusion, mistake, or deception in the minds of
`
`prospective purchasers as to the origin or source of Applicant’s Goods due to the similarity in the
`
`marks, goods, consumers, channels of trade, and other factors between Applicant’s Mark and
`
`Opposer’s Marks.
`
`16.
`
`Applicant’s alleged use of Applicant’s Mark and filing of U.S. Trademark Application
`
`Serial No. 88/791,056 is without Opposer’s consent or authorization.
`
`17.
`
`Opposer will be damaged by the registration of U.S. Trademark Application Serial No.
`
`88/791,056 and registration should be refused under 15 U.S.C. 1052(d) because Opposer has
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`constructive priority of use and confusion is likely.
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`
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`4
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`

`

`
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`WHEREFORE, Opposer respectfully requests that this Opposition be sustained and
`
`registration of the mark in U.S. Trademark Application Serial No. 88/791,056 for “MELK & Heart
`
`Design” be refused. Opposer submits herewith the requisite filing fee of $400.00.
`
`
`
`By: /s/Caroline E. Bryce
`
`Miriam D. Trudell
`Caroline E. Bryce
`Sheridan Ross P.C.
`Attorneys for Opposer
`1560 Broadway, Suite 1200
`Denver, Colorado 80202-5141
`Phone: (303) 863-9700
`Fax: (303) 863-0223
`mtrudell@sheridanross.com
`cbryce@sheridanross.com
`
`
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`Respectfully submitted,
`
`Date: October 7, 2020
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`5
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`

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`Generated on: This page was generated by TSDR on 2020-10-07 11:16:29 EDT
`
`Mark:
`
`Exhibit 1
`
`US Serial Number: 86836803
`
`US Registration
`Number:
`
`5443768
`
`Filed as TEAS RF: Yes
`
`Register: Principal
`
`Mark Type: Trademark
`
`TM5 Common Status
`Descriptor:
`
`Application Filing
`Date:
`
`Dec. 02, 2015
`
`Registration Date: Apr. 10, 2018
`
`Currently TEAS RF: Yes
`
`LIVE/REGISTRATION/Issued and Active
`
`The trademark application has been registered with the Office.
`
`Status: Registered. The registration date is used to determine when post-registration maintenance documents are due.
`
`Status Date: Apr. 10, 2018
`
`Publication Date: Jun. 07, 2016
`
` 
`
`Mark Literal
`Elements:
`
`None
`
`Standard Character
`Claim:
`
`No
`
`Notice of
`Allowance Date:
`
`Aug. 02, 2016
`
`Mark Information
`
`Mark Drawing
`Type:
`
`Description of
`Mark:
`
`2 - AN ILLUSTRATION DRAWING WITHOUT ANY WORDS(S)/ LETTER(S)/NUMBER(S)
`
`The mark consists of a solid heart shape.
`
`Color(s) Claimed: Color is not claimed as a feature of the mark.
`
`02.11.01 - Hearts excluding hearts as carriers or depicted on playing cards
`
`Related Properties Information
`
`1312975
`
`A0059012/1312975
`
`Design Search
`Code(s):
`
`International
`Registration
`Number:
`
`International
`Application(s)
`/Registration(s)
`Based on this
`Property:
`
`Goods and Services
`
`Note:
`The following symbols indicate that the registrant/owner has amended the goods/services:
`Brackets [..] indicate deleted goods/services;
`Double parenthes