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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1111488
`02/01/2021
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`Name
`
`Granted to Date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`Agewell, LLC
`
`02/03/2021
`
`9292 N. MERIDIAN ST.
`SUITE 211 B
`INDIANAPOLIS, IN 46260
`UNITED STATES
`
`BRADLEY M. STOHRY
`REICHEL STOHRY DEAN LLP
`212 W. 10TH ST., SUITE A-285
`INDIANAPOLIS, IN 46202
`UNITED STATES
`Primary Email: brad@rsindy.com
`Secondary Email(s): docket@rsindy.com
`317-501-2891
`
`Docket Number
`
`Applicant Information
`
`Application No.
`
`88463901
`
`Publication date
`
`10/06/2020
`
`Opposition Filing
`Date
`
`Applicant
`
`02/01/2021
`
`Opposition Peri-
`od Ends
`
`02/03/2021
`
`Age Brain, Inc.
`6655 NORTHWEST 26TH WAY
`BOCA RATON, FL 33496
`UNITED STATES
`
`Goods/Services Affected by Opposition
`
`Class 035. First Use: 2016/11/01 First Use In Commerce: 2016/11/01
`All goods and services in the class are opposed, namely: Advertising services; business servicesin
`the nature of online retail store services featuring non-toxic health and beauty products
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`Mark Cited by Opposer as Basis for Opposition
`
`U.S. Registration
`No.
`
`3822185
`
`Application Date
`
`05/06/2002
`
`

`

`Registration Date
`
`07/20/2010
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`AGEWELL
`
`NONE
`
`Class 003. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Cosmetic preparations, namely, hand creams and gels, skin, face and eye
`creams and gels
`Class 005. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Vitamins, minerals, nutritional and dietary supplements
`Class 010. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Surgical and medical apparatus and instruments, namely, electric or chemically
`activated heating pads and physical therapy equipment, namely, heat and cold
`packs for medical purposes; and hand and leg muscle exercisers for age-related
`sarcopenia
`Class 028. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Sporting goods equipment, namely, powered and manual exercise machines for
`movement of arms and legs, exercise mats
`Class 029. First use: First Use: 2010/05/21 First Use In Commerce: 2010/05/21
`Nutritional foods, namely, bars from processed vegetables
`
`Attachments
`
`Agewell - Notice of Opposition re AGE BRAIN LIVE SMART AGE
`WELL.pdf(128140 bytes )
`
`Signature
`
`/bms/
`
`Name
`
`Date
`
`BRADLEY M. STOHRY
`
`02/01/2021
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the matter of Trademark App. Ser. Nos. 88/463,901
`Filed on June 7, 2019
`For the mark AGE BRAIN LIVE SMART. AGE WELL.
`Published in the Official Gazette on October 6, 2020
`
`
`
`
`
`
`
`
`Agewell, LLC,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Opposer,
`
`
`
`
`
`
`
`
`
`
`
`
` v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Age Brain, Inc.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Applicant.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Opposition No.:______________
`
`NOTICE OF OPPOSITION
`
`
`
`Agewell, LLC (“Opposer”) hereby opposes the above-referenced application to register
`
`the AGE BRAIN LIVE SMART. AGE WELL. mark filed by Age Brain, Inc. (“Applicant”). The
`
`grounds for opposition are as follows:
`
`THE PARTIES
`
`1.
`
`Opposer is an Indiana limited liability company with a place of business at 9292
`
`North Meridian Street, Suite 100B, Indianapolis, IN 46260.
`
`2.
`
`Applicant is a Florida corporation with a principal place of business at 6655
`
`Northwest 26th Way, Boca Raton, FL 33496.
`
`OPPOSER AND ITS USE OF THE AGEWELL MARK
`
`Opposer provides a variety of goods and services related to the health field.
`
`Opposer is the owner of substantial trademark rights in the AGEWELL mark.
`
`Opposer owns numerous trademark registrations for the AGEWELL mark, most
`
`3.
`
`4.
`
`5.
`
`notably, U.S. Registration No. 3,822,185 (the “AGEWELL Registration”). The AGEWELL
`
`

`

`Registration covers cosmetic preparations, vitamins, nutritional supplements, and nutritional
`
`foods, among other goods.
`
`6.
`
`Opposer has been using the AGEWELL mark to promote its products and
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`services since 1992. Since that time, Opposer has established extensive and valuable goodwill in
`
`the AGEWELL mark and has spent significant amounts of time and money establishing this
`
`goodwill.
`
`7.
`
`The AGEWELL mark has come to indicate and stand for the high-quality goods
`
`and services offered by Opposer.
`
`8.
`
`As a result of Opposer’s use of the AGEWELL mark, the AGEWELL mark has
`
`become valuable property of Opposer.
`
`GROUNDS FOR AND REJECTING APPLICANT’S TRADEMARK APPLICATION
`
`
`
`9.
`
`Trademark App. Ser. No. 88/463,901 (the “Application”) was filed by Applicant
`
`for the AGE BRAIN LIVE SMART. AGE WELL. mark on June 7, 2019.
`
`10.
`
`The Application is an intent-to-use application and covers “retail store services
`
`featuring non-toxic health and beauty products.”
`
`11.
`
`Opposer’s actual, continuous, and continuing use of the AGEWELL Mark in
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`commerce began long before Applicant filed its Application and/or began using the AGE
`
`BRAIN LIVE SMART. AGE WELL. mark.
`
`12.
`
`13.
`
`The AGEWELL Registration predates the Application by over a decade.
`
`Applicant’s use and registration of the AGE BRAIN LIVE SMART. AGE
`
`WELL. mark for the services listed in the Application is likely to cause confusion, mistake,
`
`and/or lead to deception as to the origin of Applicant’s services in violation of Sections 32 and
`
`43(a) of the Lanham Act, 15 U.S.C. §§1114 and 1125(a).
`
`Page 2
`
`

`

`14.
`
`The likelihood of confusion is apparent in this instance because: (a) the AGE
`
`BRAIN LIVE SMART. AGE WELL. mark contains the entirety of the AGEWELL mark; and
`
`(b) Opposer’s “retail store services featuring non-toxic health and beauty products” would
`
`feature products such as those described in the Registration.
`
`15.
`
`Applicant’s use and registration of the AGE BRAIN LIVE SMART. AGE
`
`WELL. mark is likely to result in confusion and substantial damage and injury to Opposer.
`
`Persons familiar with Opposer’s AGEWELL mark are likely to believe that Applicant’s services
`
`originate with, or are licensed, sponsored or approved by Opposer. Any such confusion would
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`inevitably result in loss of sales to Opposer, and/or damage the goodwill and reputation that
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`Opposer has established in the AGEWELL mark.
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`
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`
`
`WHEREFORE, Opposer prays that the Application be rejected.
`
`Dated this 1st day of February, 2021.
`
`
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`Respectfully submitted,
`
`
`
`
`
`
`
`/Bradley M. Stohry/
`Bradley M. Stohry
`REICHEL STOHRY DEAN LLP
`212 West 10th Street
`Suite A-285
`Indianapolis, Indiana 46202
`(317) 423-8820
`
`By:
`
`
`
`
`
`
`
`
`Attorney for Agewell, LLC
`
`Page 3
`
`

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