Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1235428
`
`Filing date:
`
`09/13/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91266809
`
`Party
`
`Correspondence
`address
`
`Plaintiff
`Glo Digital, Inc.
`
`REBECCA LIEBOWITZ
`VENABLE LLP
`P.O. BOX 34385
`WASHINGTON, DC 20043-9998
`UNITED STATES
`Primary email: trademarkdocket@venable.com
`Secondary email(s): rliebowitz@venable.com, cmitros@venable.com,
`pjmiles@venable.com, ssfinkelstein@venable.com
`202-344-4976
`
`Submission
`
`Motion for Summary Judgment
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Yes, the Filer previously made its initial disclosures pursuant to Trademark Rule
`2.120(a); OR the motion for summary judgment is based on claim or issue pre-
`clusion, or lack of jurisdiction.
`
`The deadline for pretrial disclosures for the first testimony period as originally set
`or reset: 09/18/2022
`
`Catherine Mitros
`
`cmitros@venable.com, trademarkdocket@venable.com,
`rliebowitz@venable.com, crnelson@venable.com
`
`/Catherine Mitros/
`
`09/13/2022
`
`Segment 001 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(4477272 bytes )
`Segment 002 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(4980398 bytes )
`Segment 003 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(6129511 bytes )
`Segment 004 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(5953989 bytes )
`Segment 005 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(5893222 bytes )
`Segment 006 of Opposition No 91266809 Motion for Summary Judgment.pdf
`(5951340 bytes )
`
`

`

`GLO DIGITAL, INC.,
`
`Opposer,
`
`v.
`
`Opposition No. 91266809 (Parent)
`Opposition No. 91267145
`Opposition No. 91267291
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`__________________________________________
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`AMBER SOGORKA,
`
`Applicant.
`
`
`
`Attorney’s Reference: 120741-517108
`
`OPPOSER’S MOTION FOR SUMMARY JUDGMENT
`
`Opposer, Glo Digital, Inc., respectfully moves for summary judgment, pursuant to
`
`Rule 2.127 of the Trademark Rules of Practice and Rule 56 of the Federal Rules of Procedure on
`
`its claim that Applicant had not used its marks in connection with any of the services in the
`
`application in commerce as of the filing date and the applications are, therefore, void ab initio.1
`
`This motion is supported by the accompanying Memorandum, Statement of Undisputed Facts,
`
`and the attached exhibits.
`
`Dated: September 13, 2022
`
`
`
` Respectfully submitted,
`
`
`
`/Catherine Mitros/
`Rebecca A. Liebowitz
`Calvin Nelson
`Catherine S. Mitros
`VENABLE LLP
`P.O. Box 34385
`Washington, D.C. 20043-9998
`Telephone: (202) 344 4976
`Telefax: (202) 344 8300
`Attorneys for Applicant
`
`1 Opposer reserves its right to move for Summary Judgment on its remaining claim that there
`exists a likelihood of confusion between Applicant’s marks and Opposer’s marks.
`
`

`

`GLO DIGITAL, INC.,
`
`Opposer,
`
`v.
`
`Opposition No. 91266809 (Parent)
`Opposition No. 91267145
`Opposition No. 91267291
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`__________________________________________
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`AMBER SOGORKA,
`
`Applicant.
`
`
`
`Attorney’s Reference: 120741-517108
`
`OPPOSER’S MEMORANDUM IN SUPPORT OF ITS
`MOTION FOR SUMMARY JUDGMENT
`
`

`

`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Statement of Undisputed Facts ................................................................................................ 1
`
`Standard for Summary Judgment......................................................................................... 2
`
`III.
`
`The Application Is Void Ab initio Because The Mark Was Not Used In Commerce ......... 3
`
`1. Applicant's mark was not in use in connection with the designated services at the time
`of the filing of the applications under Section 1(a)....................................................... 4
`
`2. Conclusion .................................................................................................................... 5
`
`i
`
`

`

`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ...................................................................................................................3
`
`Avakoff v. Southern Pacific Company,
`226 U.S.P.Q. 435 (Fed. Cir. 1985).............................................................................................4
`
`Aycock Eng’g Inc. v. Airflite Inc.,
`90 U.S.P.Q.2d 1301 (Fed. Cir. 2009).........................................................................................3
`
`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ...................................................................................................................3
`
`Gay Toys, Inc. v. McDonald’s Corp.,
`199 U.S.P.Q. 722 (Fed. Cir. 1978).............................................................................................3
`
`Sweats Fashions, Inc. v. Pannill Knitting Co., Inc.,
`4 USPQ2d 1793 (Fed. Cir. 1987) ..............................................................................................2
`
`Statutes
`
`15 U.S.C. §1051(a) ..........................................................................................................................1
`
`15 U.S.C. § 1127 ..............................................................................................................................3
`
`Trademark Act Section 1(a)(1) ........................................................................................................3
`
`ii
`
`

`

`Opposer, Glo Digital, Inc., respectfully submits this memorandum in support of its motion
`
`for partial summary judgment, pursuant to Rule 2.127 of the Trademark Rules of Practice and Rule
`
`56 of the Federal Rules of Procedure, on its Petition for Opposition of Application Serial Nos.
`
`88/654,320, 88/651,153 and 88/651,097 for GLOW UP, GLOW UP NUTRITION and FIND
`
`YOUR GLOW.
`
`I.
`
`STATEMENT OF UNDISPUTED FACTS
`
`1.
`
`Applicant is the owner of US trademark application Ser. Nos. 88/654,320,
`
`88/651,153 and 88/651,097 for GLOW UP, GLOW UP NUTRITION and FIND YOUR GLOW.
`
`See Applicant’s Answer to Opposer’s Amended Notice of Opposition, ¶ 9 in Opposition Nos.
`
`91266809, 91267145, 91267291.
`
`2.
`
`Applicant filed the GLOW UP NUTRITION and FIND YOUR GLOW
`
`applications on October 11, 2009 and Applicant filed the GLOW UP application on October 15,
`
`2019. See Applicant’s Answer to Opposer’s Amended Notice of Opposition, ¶ 9 in Opposition
`
`Nos. 91266809, 91267145, 91267291.
`
`3.
`
`Applicant filed each of these applications based on use in commerce under 15
`
`U.S.C. §1051(a) of the mark in commerce at least as early as August 1, 2019. See Applicant’s
`
`Answer to Opposer’s Amended Notice of Opposition, ¶ 9 in Opposition Nos. 91266809,
`
`91267145, 91267291.
`
`4.
`
`According to the Applicant, Applicant’s services are comprised of “personalized
`
`nutritional counseling services” that take the form of 1:1 coaching, 60 minute “Intensive”
`
`consultations via Zoom video calls, a 30-day “Challenge” whereby an individual follows a
`
`“nutritional reset program” tailored to the individual, home kitchen visits and grocery store tours.
`
`See Mitros Decl. ¶ 3 and Exhibit 1, Response to Interrogatory 1 attached thereto.
`
`

`

`5.
`
`In connection with the GLOW UP, GLOW UP NUTRITION and FIND YOUR
`
`GLOW applications, Applicant filed Declarations in support of, declaring under penalty of perjury
`
`that the marks were in use in commerce on or in connection with the identified services as of the
`
`filing date of the applications. See Applicant’s Answer to Opposer’s Amended Notice of
`
`Opposition, ¶ 32-33 in Opposition Nos. 91266809, 91267145, ¶ 31-32 in Opposition No.
`
`91267145. Applicant further stated in its declarations that it was attaching one specimen of use
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`“for each class showing the mark as used in commerce” on or in connection with any item in each
`
`class of goods. Id.
`
`6.
`
`During discovery, Applicant was asked to state the “details and circumstances”
`
`relating to Applicant’s earliest rendering of the services listed in the GLOW UP, GLOW UP
`
`NUTRITION and FIND YOUR GLOW applications. See Mitros Decl. ¶ 3 and Exhibit 1,
`
`Interrogatory 3 attached thereto. Applicant responded that her “first client contract” was dated
`
`November 14, 2019. See Mitros Decl. ¶ 3 and Exhibit 1, Response to Interrogatory 3 attached
`
`thereto. Applicant’s first client contract designated a start date of December 5, 2019. See Mitros
`
`Decl. ¶ 3 and Exhibit 1, Response to Interrogatory 3, Documents Bates Numbered DEF00009-
`
`DEF00011 attached thereto.
`
`II.
`
`STANDARD FOR SUMMARY JUDGMENT
`
`Summary judgment is a “salutary method of disposition ‘designed to secure [the] just,
`
`speedy and inexpensive determination of every action.’” Sweats Fashions, Inc. v. Pannill Knitting
`
`Co., Inc., 4 USPQ2d 1793, 1795 (Fed. Cir. 1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
`
`327 (1986)); TBMP § 528.01. Summary judgment is appropriate in a case such as this where there
`
`is no genuine issue as to any material fact, and Opposer is entitled to judgment as a matter of law.
`
`Upon a motion for summary judgment, the moving party must inform the Board of the basis for
`
`its motion and identify the evidence demonstrating the absence of a genuine issue of material fact.
`
`2
`
`

`

`See Celotex, 477 U.S. at 323; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 256 (1986).
`
`The burden then shifts to the non-moving party to set forth “[s]pecific facts showing that there is
`
`a genuine issue for trial.” Anderson, 477 U.S. at 248-49; Fed. R. Civ. P. 56(e). A mere “scintilla”
`
`of evidence in support of the non-moving party’s position is not enough to defeat a moving party’s
`
`summary judgment motion; rather, when viewed in the light most favorable to the non-moving
`
`party, the evidence must be sufficient for a reasonable jury to find in favor of that party. See
`
`Anderson, 477 U.S. at 252.
`
`In this case, there is no genuine issue of material fact that the marks were not in use in
`
`commerce at the time the application was filed despite sworn statements to the contrary made in
`
`the application. Therefore, Opposer is entitled to judgment as a matter of law.
`
`III.
`
`THE APPLICATION IS VOID AB INITIO BECAUSE THE MARK WAS NOT
`USED IN COMMERCE
`
`Section 1(a)(1) of the Trademark Act permits the owner of a trademark “used in commerce”
`
`to seek registration. "Use in commerce” is defined as "the bona fide use of a mark in the ordinary
`
`course of trade, and not made merely to reserve a right in a mark." 15 U.S.C. § 1127. In addition,
`
`a mark is deemed to be in use when "it is used or displayed in the sale or advertising of services
`
`and the services are rendered in commerce, or the services are rendered in more than one State or
`
`in the United States and a foreign country and the person rendering the services is engaged
`
`in commerce in connection with the services”." Id. (emphasis added); see also Aycock Eng’g Inc.
`
`v. Airflite Inc., 560 F.3d 1350, 1357 (Fed. Cir. 2009) (“[f]or service marks, the “use in commerce”
`
`requirement is met when (1) a mark is “used or displayed in the sale or advertising of services”
`
`and (2) either (i) the services are “rendered in commerce” or (ii) the services are “rendered in more
`
`than one State or in the United States and a foreign country and the person rendering those services
`
`is engaged in commerce in connection with the services.”).
`
`3
`
`

`

`“The registration of a mark that does not meet the use requirement is void ab initio.” Id.
`
`(affirming cancellation of Registrant’s registration because Registrant did not meet the use-in-
`
`commerce requirement when the application was filed and was therefore void ab initio). See also
`
`Gay Toys, Inc. v. McDonald's Corp., 199 U.S.P.Q. 722 (Fed. Cir. 1978) (plaster mock-up of toy
`
`truck was not a good used in commerce and application was void ab initio); Avakoff v. Southern
`
`Pacific Company, 226 U.S.P.Q. 435 (Fed. Cir. 1985) (application was void ab initio since shipment
`
`of software from manufacturer to applicant was not use in commerce prior to filing).
`
`At the time of filing, Applicant had not used her marks on or in connection with
`
`any of the services in her applications because she had not yet performed any of her services for
`
`others. Therefore, Application Serial Nos. 88/654,320, 88/651,153 and 88/651,097 for GLOW
`
`UP, GLOW UP NUTRITION and FIND YOUR GLOW are void ab initio.
`
`1.
`
`Applicant's mark was not in use in connection with the designated services at
`the time of the filing of the applications under Section 1(a)
`
`Applicant’s Marks were not in use in commerce on or in connection with any of the services
`
`identified in the applications, including “personalized nutritional counseling services” that take the
`
`form of 1:1 coaching, 60 minute “Intensive” consultations via Zoom video calls, a 30-day
`
`“Challenge” whereby an individual follows a “nutritional reset program” tailored to the individual,
`
`home kitchen visits and grocery store tours” as of the filing date of the applications, namely
`
`October 11, 2019 and October 11, 2019. Indeed, Applicant’s interrogatory responses and
`
`documents confirm that Applicant did not use the marks in commerce until December 5, 2019 at
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`the earliest.
`
`Applicant’s own discovery responses show that the marks were not used in commerce prior
`
`to December 5, 2019, four months later than the August 1, 2019 first-use date Applicant swore
`
`under oath to in her application. When asked to state the “details and circumstances” relating to
`
`4
`
`

`

`Applicant’s earliest rendering of services, Applicant responded that her “first client contract” was
`
`dated November 14, 2019. See Mitros Decl. ¶ 3 and Exhibit 1, Response to Interrogatory 3 attached
`
`thereto. In response to the Interrogatory, Applicant produced the November 14, 2019 client
`
`contract, which was signed by Applicant’s client on November 14, 2019, with a start date of
`
`December 5, 2019. See Mitros Decl. ¶ 3 and Exhibit 1, Response to Interrogatory 3, Documents
`
`Bates Numbered DEF00009-DEF00011 attached thereto. Thus, at best, Applicant’s “first client
`
`contract” establishes a first use in commerce no earlier than December 5, 2019.
`
`Applicant’s other discovery responses fare no better. When asked for her basis for alleging
`
`use as of the October 15, 2019 application filing date or the August 1, 2019 purported date of first
`
`use, Applicant responded that she had been “promoting” her services as of February 28, 2019,
`
`citing to a screenshot of a February 28, 2019 Facebook post promoting Applicant’s services. See
`
`Mitros Decl. ¶ 3 and Exhibit 1, Responses to Interrogatories 4 and 5, Documents Bates Numbered
`
`DEF00012-DEF00013 attached thereto. However, it is well-established that mere promotion is
`
`insufficient to establish use in commerce. Aycock Engineering, Inc., 560 F.3d at 1358 (“[w]ithout
`
`question, advertising or publicizing a service that the applicant intends to perform in the future
`
`will not support registration.”).
`
`Based on the above evidence, it is undisputed that Applicant did not use the marks on or in
`
`connection with the designated services at the time she filed the applications.
`
`2.
`
`Conclusion
`
`There is no genuine issue of material fact that Applicant had not used its mark in commerce
`
`as of the filing date of the underlying applications rendering the resulting applications void ab
`
`initio. For the reasons set forth above, Opposer is entitled to summary judgment. Accordingly,
`
`Opposer respectfully requests that summary judgment be entered in its favor and that Application
`
`5
`
`

`

`Serial Nos. 88/654,320, 88/651,153 and 88/651,097 for GLOW UP, GLOW UP NUTRITION and
`
`FIND YOUR GLOW be abandoned in their entirety.
`
`6
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned, attorney for Opposer, hereby certifies that she served, by email, a copy
`
`of the foregoing OPPOSER’S MOTION FOR SUMMARY JUDGMENT AND
`
`MEMEORANDUM IN SUPPORT with EXHIBITS upon
`
`Ruth K. Khalsa
`THE IDEAS LAW FIRM, PLLC
`975 E DAVA DRIVE
`TEMPE, AZ 85283
`UNITED STATES
`ruth@trademarkelite.com, randall@trademarkelite.com
`
`this 13th day of September, 2022.
`
`/Catherine Mitros/
`Catherine Mitros
`
`7
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`__________________________________________
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Opposition Nos. 91266809 (parent)
` 91267145
` 91267291
`
`Serial No.: 88/651153
` 88/654320
` 88651097
`
`Mark: GLOW UP NUTRITION
`GLOW UP
`FIND YOUR GLOW
`
`GLO DIGITAL, INC.,
`
`Opposer,
`
`v.
`
`AMBER SOGORKA,
`
`Applicant.
`
`
`
`Attorney’s Reference: 120741-534374
`
`DECLARATION BY CATHERINE MITROS IN SUPPORT OF OPPOSER’S
`MOTION FOR SUMMARY JUDGMENT
`
`1.
`
`I am an associate at Venable LLP, and am counsel of record for Opposer Glo
`
`Digital, Inc. (“Glo Digital”). I am submitting this declaration in support of Glo Digital’s Motion
`
`for Summary Judgment.
`
`2.
`
`Attached hereto as Exhibit 1 are true and correct copies of Applicant’s Responses
`
`to Opposer’s Second Set of Interrogatories in Opposition Nos. 91266809, 91267145, 91267291.1
`
`I declare under penalty of perjury, under the laws of the United States of America, that
`
`the foregoing is true and correct.
`
`Executed this 13th day of September, 2022 at Washington, DC.
`
`1 These responses were signed by “Amber Clarkston.” Opposer sought clarification from Applicant’s counsel on
`whether “Amber Clarkston” was the same person as Applicant “Amber Sogorka.” However, Applicant’s counsel did
`not respond. For the purposes of this motion, Opposer assumes that Amber Clarkston is Applicant Amber Sogorka.
`
`

`

`/Catherine Mitros/
`
`Catherine Mitros
`Venable LLP
`Attorney for Glo Digital, Inc.
`
`

`

`EXHIBIT I
`EXHIBIT I
`
`

`

`oIN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARKTRIAL AND APPEAL BOARD
`
`Applicant.
`
`GLO DIGITAL,INC.,
`Opposer,
`
`Vv.
`
`AMBER SOGORKA,
`
`OPPOSITIONNo. 91267145
`
`Mark: GLOW UP
`
`U.S. Serial No. 88/654,320
`
`APPLICANT’S RESPONSE TO OPPOSER’S
`
`SECOND SET OF INTERROGATORIES
`
`Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure (“FRCP”) and Rule
`
`2.120 of the Trademark Rules of Practice for the United States Patent and Trademark Office,
`
`Applicant AMBER SOGORKA,(“Applicant”) states its responses and objections to Opposer,
`
`GLO DIGITAL,
`
`INC.’s,
`
`(“Opposer”) Second Set of Interrogatories (“Interrogatories”) as
`
`follows:
`
`GENERAL RESPONSES AND OBJECTIONS
`
`Each of Applicant’s responses, in addition to any specifically stated objections, is subject
`
`to and incorporates the following general responses and objections. The assertion of the same,
`
`similar, or additional objections, or a partial response to any individual request, does not waive
`
`any of the Applicant’s general responses and objections.
`
`

`

`The
`
`following responses
`
`reflect
`
`the
`
`current
`
`state of Applicant’s knowledge,
`
`understanding and belief respecting matters about whichever inquiry has been made. Applicant
`
`expressly reserves their right to supplement or modify these responses with such pertinent
`
`information as they may hereafter discover to the extent required by the Federal Rules of Civil
`
`Procedure. Applicant expressly reserves the right
`
`to rely on, at any time,
`
`includingtrial,
`
`subsequently discovered documents and/or materials that have been produced promptly upon
`
`discovery.
`
`Applicant objects to any interrogatory that seeks information constituting or containing
`
`information concerning communications between Applicant and their counsel, which are
`
`protected by the attorney-client privilege.
`
`Applicant objects to any interrogatory that seeks information constituting or containing
`
`information prepared in anticipation ofor as a result of litigation or which is otherwise protected
`
`by the work product doctrine or any other available privilege or protection.
`
`The inadvertent provision of information or the production by Applicant, pursuant to
`
`Rule 33(d), Fed. R. Civ. P., of documents containing information protected from discovery by the
`
`attorney-client privilege, work product doctrine or any other applicable privilege, shall not
`
`constitute a waiver of such privileges with respect to that information or those or any other
`
`documents.
`
`In the event
`
`that
`
`inadvertent production occurs, Opposer
`
`shall
`
`return all
`
`inadvertently-produced documents to Applicant upon request, and/or shall make no use of the
`
`contents of such information or documents nor premise any further discovery on information
`
`learned therefrom.
`
`

`

`Applicant objects to any interrogatory to the extent that it purports to impose upon
`
`Applicant any obligation beyond those imposed by the Federal Rules of Civil Procedure,
`
`including, but not limited to, any interrogatory that exceeds the scope of Rules 26(b) and 33, Fed.
`
`R. Civ. P.
`
`Applicant objects to these interrogatories to the extent that they are overbroad, unduly
`
`burdensome, vague, ambiguous, confusing, require speculation to determine their meaning or use
`
`imprecise specifications of the information sought.
`
`Applicant objects to any interrogatory to the extent that it seeks information neither
`
`relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery
`
`of admissible evidence.
`
`Applicant objects to any interrogatory as unduly and unnecessarily burdensometo the
`
`extent that it seeks information that is a matter of public record, already in the Opposer’s
`
`possession, or otherwise readily available to the Opposer, and, therefore, may be accessed and
`
`obtained by Opposer with less burden than Applicant can identify and provide requested
`
`information.
`
`None of the objections or responses contained herein constitute an admission concerning
`
`the existence of any documents or materials, the relevance or admissibility of any documents,
`
`materials or information, or the truth or accuracy of any statement or characterization contained
`
`in the Interrogatories. Applicant’s written responses are made without waiving, but, on the
`
`contrary, expressly reserving: (a) the right to object, on the grounds of competency, privilege,
`
`relevancy, materiality or any other proper grounds,to the use of the information provided herein,
`
`in whole or in part, in any subsequent proceeding in this action or any other action; (b) the right
`
`

`

`to object on any andall grounds, at any time, to other discovery requests involving or relating to
`
`the subject matter of these requests; and (c) the right at any time to revise, correct, add orclarify
`
`any of the responses provided herein.
`
`Applicant objects to any interrogatory to the extent it is a contention interrogatory.
`
`Pursuant to Rule 33(c), Fed. R. Civ. P., Applicant objects to any such interrogatory on the
`
`groundsthat it is premature in light of the present stage of discovery. The Applicant expects to
`
`receive further documents through discovery that will concern and provide information
`
`responsive to such interrogatories. Because FRCP Rule 26 imposes a duty of supplementation,
`
`complying with such interrogatories would require Applicant to continually supplementtheir
`
`responses each time they receive an additional documentor information concerning the subject
`
`or contention on which the interrogatory seeks information. Doing so would cause the Applicant
`
`to suffer unnecessary burden and expense and would not serve to narrow the issues that are in
`
`dispute. See, e.g, Nestle Foods Corp. v. Aetna Cas. and Sur. Co., 135 F.R.D. 101, 110-111 (
`
`D.N.J. 1990); Conopco, Inc. v. Warner- Lambert Co., 2000 WL 342872, * 4 (D.N.J. 2000); B.
`
`Braun Med. Inc. v. Abbott Labs, 155 F.R.D. 525, 527 (E.D. Pa. 1994). Accordingly, in response
`
`to any such contention interrogatory, Applicant will provide a response encompassing the current
`
`state of their knowledge, belief, and understanding, but reserve the right to supplement their
`
`interrogatory response pursuant to Rule 26 at the conclusion of discovery, both as to the merits of
`
`this action and with respect to experts designatedto testify at trial.
`
`Applicant states that the responses to many of the Opposer’s interrogatories may, in
`
`substantial part, be derived or ascertained from Applicant’s records as well as documents
`
`produced by Opposer in discovery. Pursuant to Rule 33(d), Fed. R. Civ. P., as the burden of
`
`

`

`deriving or ascertaining the answerto such interrogatories from such records and documentsis
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`substantially the same for Opposer, Applicant will respond to such interrogatories by noting the
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`specific documents or types of documents that will be responsive to Opposer’s request.
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`PECIFIC
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`OBJECTI
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`AND RESP
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`ES
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`TO
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`INTERROGATORIE
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`INTERROGATORYNO. 1:
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`Identify and describe each of Applicant’s Services listed in Application Serial No.
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`88654320.
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`RESP
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`E:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing General Objections, Applicant responds as
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`follows:
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`I provide the following personalized nutritional counseling services to individual
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`clients:
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`(a)1:1Coaching
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`The 1:1 coaching program has the highest success rate of helping clients make long term
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`sustainable change.
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`I guide the client through a habits-based program that meets them where
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`they currently are. We work closely together on habit formation, building slowly from week to
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`week until mastery of each topic/habit is achieved. We typically work on one new habit every
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`1-2 weeks depending onclient’s mastery level of each habit.
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`The flexible structure of the service allows us to dive deeper into areas that are more
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`important to the particular client, bolster areas of moderate confidence and skill, skipping over
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`the areas that the client has already mastered. The habit formation work is specifically tailored
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`to the client’s unique needs and may evolve as we work together. Focus areas of habit formation
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`are diverse and may include everything from water intake, food diversity, bathroom regularity,
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`gut health, non-preferred foods, cooking methods, macro- and micronutrient intake and best
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`practices, sleep hygiene, stress management, processes related to decisions and mindsets around
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`food, potential food intolerances, as well as many other things. Each client has unique goals and
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`brings something different to the table - working 1:1 enables me to give the client the most
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`effective, personally tailored coaching. The client is part of the decision-making processat all
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`times.
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`I also provide the client with recipe ideas, educational content on an array of topics, a
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`personalized nutrition coaching binder, and homework assignments.
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`Clients complete a detailed intake form followed by a week long food log for my review.
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`The more I know and understand about the client and their unique history and relationship with
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`food, the better I am able to support them and help them crushtheir goals! After I review the
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`food log and intake forms, I formulate my initial recommendations on where we shouldstart.
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`Coaching takes place over Zoom; the initial appointment with a new client lasts approximately
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`an hour and a half, after which we meet once a week for about 45 minutes. Clients also have
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`unlimited access to me via text for questions or clarification (for example wheneating out or
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`grocery shopping).
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`(b)
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` 60Minute Intensive
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`This service is a one-time deep dive Zoom videocall with me. Before the appointment,
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`the client submits their nutrition and wellness related questions to me. Duringthecall, I provide
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`professional feedback and personalized recommendations. Clients often purchase this service in
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`order to “get a feel” for whatit's like to work with me, prior to signing up for a more lengthy
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`service such as the Coaching or Challenge services.
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`(c)30DayGlowUpChallenge
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`The Glow Up Challenge is an anti-inflammatory nutritional reset program with a specific
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`focus on reducing inflammation and toxin load, improving gut health, and improving digestion.
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`Reducing inflammation and improving gut health are two of the most important things an
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`individual can do to support health and wellness.
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`During the Glow Up Challenge,
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`the client eliminates acidic, high glycemic, and
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`inflammatory foods. The goals of the program are improved energy levels, sleep quality, skin
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`health, mental clarity, blood pressure, cholesterol levels, digestion, elimination, among other
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`things. Clients report experiencing fewer food cravings and headaches, andless joint pain and
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`brain fog.
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`If weight loss is one of the client’s goals, I tailor the program to specifically address this
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`issue. For clients who don't want to lose weight but rather would like to recomp and add more
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`muscle mass,I tailor the program accordingly.
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`(d)
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`Home Kitchen Visit
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`I personally visit the client’s home and help them to clean out and overhaultheir pantry /
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`refrigerator / kitchen. Areas of discussion during the visit include instruction on how to read and
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`interpret ingredient and nutritional labels on food, information about preservatives, and practical
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`tips and tactics for healthy food shopping and selection. We also work on helping the client set
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`up a home environmentthat supports their success in achieving their unique healthy eating goals,
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`evenif all family members maynotbe on board withthe client’s lifestyle choices.
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`(e)
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`r
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`re Tour
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`The client and I visit a grocery store together for a real time lesson in how to best
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`navigate the store so that the client leaves with food that supports their health and goals, as
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`opposed to food or food products that feed cravings or look irresistible but are nutritionally
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`empty. Instruction during the grocery store visit is focused heavily on how to read ingredient and
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`nutrition labels - what to look for, what to avoid, and why.
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`INTERROGATORYNO. 2:
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`Identify and explain all types of advertising and all types of media used or intended to be
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`used to advertise and promote Applicant’s Services.
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`RESPONSE:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing General Objections, Applicant responds as
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`follows:
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`I advertise through word of mouth aswell as on Instagram and Facebook.
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`INTERROGATORYNO.3:
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`State the details and circumstancesrelating to Applicant’s earliest rendering of “nutrition
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`coaching services” in commerce,
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`including, but not limited to, the date,
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`location, and the
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`customerthe Services werefirst renderedto.
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`RESP
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`E:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing General Objections, Applicant respondsas
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`follows:
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`Myfirst client contract is dated November 14, 2019. See attached documents Bates
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`numbered DEF00009-DEF00011.
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`INTERROGATORYNO. 4:
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`Separately identify each document that supports that Applicant was rendering “nutrition
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`coaching services” as of October 15, 2019.
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`RESPONSE:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing General Objections, Applicant responds as
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`follows:
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`On February 28, 2019, I began promoting myservices through word of mouth and
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`social media. See attached documents Bates numbered DEF00012-DEF00013.
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`INTERROGATORY NO.5:
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`Separately identify each document that supports the verified statement alleging that the
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`applicant rendered “nutrition coaching services” as ofAugust 1, 2019.
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`RESPONSE:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing General Objections, Applicant responds as
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`follows:
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`On February 28, 2019, I began promoting my nutrition coaching services. See
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`attached documents Bates numbered DEF00012-DEF00013.
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`INTERROGATORYNO.6:
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`Describe the customers to whom Applicant’s Services are marketed, distributed, and/or
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`sold in the U.S., including, but not limited to, the customers’ demographics(e.g., geographic
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`location, age, profession, education and income).
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`RESP
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`E:
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`Applicant hereby incorporates each and every General Objection set forth above.
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`Subject to, and without waiving the foregoing objections, Applicant respondsasfollows:
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`Myclients include men and womenofall ages who can afford my services and have
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`a desire to improvetheir quality of life through better habit formation around nutrition.
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`10
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`INTERROGATORY
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`Z:
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`Describe the ann