Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1141673
`06/21/2021
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`91267752
`
`Plaintiff
`Oatly AB
`
`JONATHAN A. HYMAN
`KNOBBE MARTENS OLSON & BEAR LLP
`2040 MAIN STREET, 14TH FLOOR
`IRVINE, CA 92614
`UNITED STATES
`Primary Email: efiling@knobbe.com
`Secondary Email(s): Jonathan.Hyman@knobbe.com
`310-551-3450
`
`Motion to Amend Pleading/Amended Pleading
`
`Jonathan A. Hyman
`
`Jonathan.Hyman@knobbe.com, efiling@knobbe.com
`
`/jhh/
`
`06/21/2021
`
`AWAP043.002TIS-1stAmendNotOpp.pdf(98617 bytes )
`Exhibit 1.pdf(93375 bytes )
`Exhibit 2.pdf(1445685 bytes )
`Exhibit 3.pdf(2398453 bytes )
`Exhibit 4.pdf(1195338 bytes )
`
`

`

`AWAP043.002TIS
`
`
`TRADEMARK
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`Opposition No.: 91267752
`
`Serial No.: 88/886,704
`
`Mark:
`
`
`
`) ) ) ) ) ) ) )
`
`
`
`) ) )
`
`
`
`Opposer,
`
`
`
`v.
`
`
`OATLY AB,
`
`
`
`
`
`THE NOT COMPANY SPA,
`
`
`
`
`
`Applicant.
`
`FIRST AMENDED NOTICE OF OPPOSITION
`
`
`Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`
`
`Oatly AB, a Swedish aktiebolag (ab) with an office at Stora Varvsgatan 6 A Malmö,
`
`Sweden 21119 believes that it would be damaged by the registration of the mark shown in
`
`Application Serial No. 88/886,704 and hereby opposes the same under the provision of Section
`
`13 of the Trademark Act of July 5, 1946, as amended, 15 U.S.C. § 1063.
`
`
`
`As grounds for opposition, it is alleged:
`
`
`
`1.
`
`2.
`
`Opposer is a Swedish company with a principal place of business in Sweden.
`
`Opposer is informed and believes and on that basis alleges that The Not Company
`
`SpA is a Chilean Corporation with its principal place of business in Chile.
`
`3.
`
`Opposer is the owner of pending federal trademark applications for the marks
`
` and OATLY NOT MILK (hereinafter the “NOT MILK Marks”) for “oat-based
`
`-1-
`
`

`

`drinks for use as a milk substitutes” in International Class 29 (hereinafter “Opposer’s Goods”).
`
`See U.S. App. Nos. 90/239637 and 90/239617. True and correct copies of printouts from the
`
`electronic database records of the Patent and Trademark Office showing the status for these
`
`applications are attached hereto as Exhibit 1.
`
`4.
`
`By the Application filed on April 24, 2020, Applicant filed Application Serial No.
`
`88/886,704 (hereinafter “Applicant’s Application”) for registration of the mark
`
`
`
`(hereinafter “Applicant’s Mark”) for use in connection with “vegetable-based spreads; coffee and
`
`tea substitutes; vegetable-based caramels and chocolates; vegetable-based food seasonings;
`
`vegetable-based candy and caramels; Vegetable-based thickening agents for cooking foodstuffs;
`
`cookies and pastries made with egg and milk substitutes; ice cream substitutes; gravies
`
`containing meat substitute; food condiment consisting primarily of ketchup and salsa made with
`
`plant-based sugar substitutes; egg-free and dairy-free mayonnaise and mustard substitute; honey
`
`substitute; fresh pizzas” in International Class 30 (hereinafter “Applicant’s Goods”), based on
`
`Applicant’s alleged intent-to-use the mark in interstate commerce.
`
`5.
`
`Opposer is in the business of marketing and selling oat-based food and beverage
`
`products, including oat-based drinks for use as a dairy milk substitute.
`
`6.
`
` Opposer markets and sells its goods through various channels, including but not
`
`limited to its online website, us.oatly.com.
`
`7.
`
`8.
`
`
`
`
`
`
`
`
`
`
`
`
`
` “NOT” is a term used to stand for the negative of a preceding group of words.
`
` Sample dictionary definitions of the term “NOT,” include:
`
`- Merriam Webster’s online dictionary, defines “NOT” as “a logical operator
`
`that produces a statement that is the inverse of an input statement.” (internal
`
`citations omitted).
`
`-2-
`
`

`

`
`
`
`
`
`
`
`
`9.
`
`- Dictionary.com LLC’s online dictionary, defines “NOT” as “used to express
`
`negation, denial, refusal, or prohibition.”
`
` Opposer has a real interest in the registration of the Applicant’s Mark because
`
`such registration would damage Opposer by interfering with its right to the lawful descriptive or
`
`generic use of the term “not”, as well as its applications for its NOT MILK Marks.
`
`10.
`
` Numerous other entities, especially those in the non-dairy market, already employ
`
`the descriptive use of the term “not” in connection with non-dairy food and beverage products.
`
`Such descriptive use by Opposer and other non-dairy entities demonstrates that the term “not”
`
`should not be controlled by or exclusively registered to one person or entity and must remain in
`
`the public domain for use by all others to describe their products.
`
`11.
`
`Applicant concedes that its use of the word NOT is to describe to its consumers
`
`that its products are “not milk,” not butter,” etc. For example, Applicant’s CEO and founder,
`
`Matias Muchnick, admits that the use of the word NOT is to convey to the consumer that its
`
`products are “not” something:
`
`“We foresaw that coming. We know how powerful the dairy industry is. So we created
`this concept of creating transparency with the consumer, saying we’re not milk. We have
`all that you want from milk and nothing that you don’t want from milk”.
`
`
`See https://www.livekindly.co/vegan-milk-created-by-ai-whole-foods-nationwide/ attached as
`Exhibit 2 (last visted June 21, 2021) (emphaiss added).
`
`
`12.
`
`Applicant owns numerous other federal applications and registrations for marks
`
`that include the word NOT that include a disclaimer of the word NOT. For example, U.S. Reg.
`
`No. 5,034,959 for the mark
`
`disclaims the words “NOT MAYO” and covers
`
`“vegetable-based spread; mayonnaise substitute,” in Class 30; U.S. Trademark Application Serial
`
`-3-
`
`

`

`No. 88/431,693 for the mark X NOTCO NOT ICE CREAM disclaims the words “NOT ICE
`
`CREAM” and covers “Non-dairy ice cream substitute,” in Class 30. See file history of U.S. Reg.
`
`No. 5,034,959 attached hereto as Exhibit 3 and U.S. Trademark Application Serial No.
`
`88/431,693 attached hereto as Exhibit 4.
`
`13.
`
`Under Section 1213.01(d) of the Trademark Manual of Examining Procedure,
`
`Applicant’s disclaimer of the term “not” in the Applicant’s prior filings “constitutes a concession
`
`that the [term “not”] is not inherently distinctive or registrable” in connection with the goods in
`
`the Applicant’s applications.
`
`14.
`
`Applicant has not made substantially exclusive and continuous use of the word
`
`NOT as mark on Applicant’s Goods.
`
`15.
`
`Accordingly, even if Applicant can establish the mark is not generic and is
`
`descriptive, the mark is not inherently distinctive and has not acquired distinctiveness.
`
`16.
`
`Should Applicant receive registration for the mark and use of the descriptive term,
`
`“not”, Opposer as well as other entities, may be precluded from making fair, legitimate,
`
`descriptive use of the term “not” to describe non-dairy products. Granting Applicant a
`
`registration for a mark that exclusively consists of the term “not” would provide Applicant with a
`
`monopoly over the common term and bar or unduly hinder the legitimate use by others of the
`
`term. Accordingly, Opposer has a statutory cause of action.
`
`17.
`
`Applicant’s use of the term “not” as used in connection Applicant’s Goods is not
`
`being used by the Applicant as a trademark but, rather, as a highly descriptive term, incapable of
`
`federal registration without an extraordinary showing of secondary meaning, insofar as it
`
`immediately describes an ingredient, quality, characteristic and feature of the specified goods.
`
`See 15 U.S.C. § 1052(e)(1).
`
`18.
`
`Applicant’s use of the term “not” is incapable of distinguishing Applicant’s
`
`-4-
`
`

`

`Goods from the goods and services of others and therefore cannot function as a trademark nor as
`
`an indicator of source.
`
`19.
`
`Applicant does not have the right to exclusive use of the word “not” for
`
`Applicant’s Goods.
`
`20.
`
`21.
`
`The term NOT is a common term in Applicant’s trade or industry.
`
`The term NOT is used and has been used by numerous entities in Applicant’s
`
`trade or industry.
`
`22.
`
`The term NOT is routinely used by the media in discussing products and entities
`
`within Applicant’s trade or industry.
`
`23.
`
`The term NOT is merely informational and constitutes a common term that is
`
`commonly used by those in Applicant’s trade or industry.
`
`24.
`
`The term NOT is incapable of distinguishing Applicant’s goods from the goods of
`
`others and therefore cannot function as a trademark and an indicator of source.
`
`25.
`
`Accordingly, the term “not” fails to function as a mark pursuant to Trademark Act
`
`Sections 1, 2 and 45, 15 U.S.C. §§ 1051, 1052, 1053, and 1127.
`
`26.
`
`Alternatively, the term “not” is, and has been for many years, widely used in the
`
`alternative foods industry, including the non-dairy industry, as a generic term for a particular
`
`food that does “not” contain a specific ingredient; e.g., milk that does not contain dairy, cookies
`
`and pastries that do not contain eggs and milk; ice cream substitutes that do not contain dairy,
`
`etc.
`
`27.
`
`Accordingly, the term “not” is generic pursuant to Trademark Act Sections 1, 2,
`
`and 45, 15 U.S.C. §§ 1051, 1052, 1053, and 1127.
`
`28.
`
`For the reasons set forth in the foregoing paragraphs, Opposer believes that it
`
`would be damaged by the registration of Applicant’s Mark, and thus Applicant should be denied
`
`-5-
`
`

`

`registration of the mark.
`
`WHEREFORE, Opposer prays that U.S. Trademark Application Serial No. 88/886,704 be
`
`rejected and stricken, that no registration be issued thereon to Applicant, and that this opposition
`
`be sustained in favor of Opposer.
`
`Please charge Deposit Account No. 11-1410 to cover the opposition fee and any additional
`
`fees which may be required, or credit any overpayment to this account.
`
`
`
`
`
`Dated: June 21, 2021
`
`
`
`
`
`
`Respectfully submitted,
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`
`
`
`
`
`By: /jhh/
`Jonathan A. Hyman
`Lynda Zadra-Symes
`Hans L. Mayer
`David O’Hair
`2040 Main Street, Fourteenth Floor
`Irvine, CA 92614
`(310) 551-3450
`efiling@knobbe.com
`Attorneys for Opposer, Oatly AB
`
`-6-
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that I served a copy of the foregoing FIRST AMENDED NOTICE OF
`
`
`
`OPPOSITION upon Applicant’s counsel of record on June 21, 2021 via electronic mail to:
`
`
`B. Brett Heavner, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP
`docketing@finnegan.com, b.brett.heavner@finnegan.com,
`TTAB-Legal-Assistants@finnegan.com
`
`
`
`
`Signature: /jhh/
`
`Name: Jonathan A. Hyman
`
`Date: June 21, 2021
`
`
`
`
`
`
`35169183v2
`
`
`
`
`
`
`
`
`
`
`-7-
`
`

`

`EXHIBIT 1
`
`EXHIBIT 1
`
`

`

`Generated on: This page was generated by TSDR on 2021-06-21 15:01:44 EDT
`
`Mark: THE ORIGINAL NOT MILK
`
`US Serial Number: 90239637
`
`Register: Principal
`
`Mark Type: Trademark
`
`TM5 Common Status
`Descriptor:
`
`Application Filing
`Date:
`
`Oct. 07, 2020
`
`LIVE/APPLICATION/Under Examination
`
`The trademark application has been accepted by the Office (has met the
`minimum filing requirements) and that this application has been assigned to
`an examiner.
`
`Status: A non-final Office action has been sent (issued) to the applicant. This is a letter from the examining attorney requiring additional
`information and/or making an initial refusal. The applicant must respond to this Office action. To view all documents in this file, click on
`the Trademark Document Retrieval link at the top of this page.
`
`Status Date: Jan. 13, 2021
`
` 
`
`Mark Literal
`Elements:
`
`THE ORIGINAL NOT MILK
`
`Standard Character
`Claim:
`
`No
`
`Mark Information
`
`Mark Drawing
`Type:
`
`3 - AN ILLUSTRATION DRAWING WHICH INCLUDES WORD(S)/ LETTER(S)/NUMBER(S)
`
`Description of
`Mark:
`
`The mark consists of the stylized words "THE ORIGINAL NOT MILK" with a stylized image of an oat plant in the middle of the "O" in
`the word "NOT".
`
`Disclaimer: "ORIGINAL AND NOT MILK"
`
`Design Search
`Code(s):
`
`05.13.25 - Straw in bales; Other plants including bales of hay or straw; Hay in bales; Bales of hay or straw
`27.03.04 - Plants forming letters or numerals
`
`Priority Claimed: Yes
`
`2020/06290
`
`Foreign
`Application
`Number:
`
`Foreign
`Application/Registration
`Country:
`
`SWEDEN
`
`Foreign Information
`
`Foreign
`Application Filing
`Date:
`
`Sep. 23, 2020
`
`Goods and Services
`
`Note:
`The following symbols indicate that the registrant/owner has amended the goods/services:
`Brackets [..] indicate deleted goods/services;
`Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; and
`Asterisks *..* identify additional (new) wording in the goods/services.
`
`For: Oat-based drinks for use as a milk substitute
`
`International
`Class(es):
`
`029 - Primary Class
`
`Class Status: ACTIVE
`
`Basis: 1(b) 44(d)
`
`U.S Class(es): 046
`
`Basis Information (Case Level)
`
`

`

`Filed Use: No
`
`Filed ITU: Yes
`
`Filed 44D: Yes
`
`Filed 44E: No
`
`Filed 66A: No
`
`Filed No Basis: No
`
`Currently Use: No
`
`Currently ITU: Yes
`
`Currently 44E: No
`
`Currently 66A: No
`
`Currently No Basis: No
`
`Current Owner(s) Information
`
`Owner Name: Oatly AB
`
`Owner Address: Stora Varvsgatan 6 A
`Malmö SWEDEN 21119
`
`Legal Entity Type: aktiebolag (ab)
`
`State or Country
`Where Organized:
`
`SWEDEN
`
`Attorney/Correspondence Information
`
`Attorney Name: Jonathan A. Hyman
`
`Docket Number: AWAP043.022T
`
`Attorney of Record
`
`Attorney Primary
`Email Address:
`
`efiling@knobbe.com
`
`Attorney Email
`Authorized:
`
`Yes
`
`Correspondent
`
`Correspondent
`Name/Address:
`
`Jonathan A. Hyman
`Knobbe Martens Olson & Bear LLP
`2040 Main Street, 14th Floor
`Irvine, CALIFORNIA UNITED STATES 92614
`
`Phone: 310-551-3450
`
`Fax: 949-760-9502
`
`Correspondent e-
`mail:
`
`efiling@knobbe.com
`jonathan.hyman@knobbe.com
`
`Correspondent e-
`mail Authorized:
`
`Yes
`
`Jonathan A. Hyman
`
`Phone: 310-551-3450
`
`Domestic Representative
`
`Domestic
`Representative
`Name:
`
`Fax: 949-760-9502
`
`Domestic
`Representative e-
`mail:
`
`efiling@knobbe.com
`
`Domestic
`Representative e-
`mail Authorized:
`
`Yes
`
`Prosecution History
`
`Date
`
`Description
`
`Jun. 14, 2021
`
`APPLICANT/CORRESPONDENCE CHANGES (NON-RESPONSIVE) ENTERED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF CORRESPONDENCE RECEIVED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF DOMESTIC REPRESENTATIVES ADDRESS
`
`Jun. 14, 2021
`
`ATTORNEY/DOM.REP.REVOKED AND/OR APPOINTED
`
`Jun. 14, 2021
`
`TEAS REVOKE/APP/CHANGE ADDR OF ATTY/DOM REP RECEIVED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF OWNER ADDRESS RECEIVED
`
`Jan. 13, 2021
`
`NOTIFICATION OF NON-FINAL ACTION E-MAILED
`
`Jan. 13, 2021
`
`NON-FINAL ACTION E-MAILED
`
`Jan. 13, 2021
`
`NON-FINAL ACTION WRITTEN
`
`Jan. 11, 2021
`
`ASSIGNED TO EXAMINER
`
`Nov. 21, 2020
`
`NOTICE OF DESIGN SEARCH CODE E-MAILED
`
`Nov. 20, 2020
`
`NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM
`
`Oct. 10, 2020
`
`NEW APPLICATION ENTERED IN TRAM
`TM Staff and Location Information
`
`TM Staff Information
`
`Proceeding
`Number
`
`88888
`
`6325
`
`6325
`
`92856
`
`92856
`
`

`

`TM Attorney: DANG, PETER T
`
`Current Location: TMO LAW OFFICE 121 - EXAMINING
`ATTORNEY ASSIGNED
`
`Law Office
`Assigned:
`
`LAW OFFICE 121
`
`File Location
`
`Date in Location: Jan. 13, 2021
`
`

`

`Generated on: This page was generated by TSDR on 2021-06-21 15:02:06 EDT
`
`Mark: OATLY NOT MILK
`
`US Serial Number: 90239617
`
`Register: Principal
`
`Mark Type: Trademark
`
`TM5 Common Status
`Descriptor:
`
`Application Filing
`Date:
`
`Oct. 07, 2020
`
`LIVE/APPLICATION/Under Examination
`
`The trademark application has been accepted by the Office (has met the
`minimum filing requirements) and that this application has been assigned to
`an examiner.
`
`Status: An Office action suspending further action on the application has been sent (issued) to the applicant. To view all documents in this file,
`click on the Trademark Document Retrieval link at the top of this page.
`
`Status Date: Jan. 13, 2021
`
` 
`
`Mark Literal
`Elements:
`
`OATLY NOT MILK
`
`Mark Information
`
`Standard Character
`Claim:
`
`Mark Drawing
`Type:
`
`Yes. The mark consists of standard characters without claim to any particular font style, size, or color.
`
`4 - STANDARD CHARACTER MARK
`
`Disclaimer: "NOT MILK"
`
`Priority Claimed: Yes
`
`2020/06282
`
`Foreign
`Application
`Number:
`
`Foreign
`Application/Registration
`Country:
`
`SWEDEN
`
`Foreign Information
`
`Foreign
`Application Filing
`Date:
`
`Sep. 23, 2020
`
`Goods and Services
`
`Note:
`The following symbols indicate that the registrant/owner has amended the goods/services:
`Brackets [..] indicate deleted goods/services;
`Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; and
`Asterisks *..* identify additional (new) wording in the goods/services.
`
`For: Oat-based drinks for use as a milk substitute
`
`International
`Class(es):
`
`029 - Primary Class
`
`Class Status: ACTIVE
`
`Basis: 1(b) 44(d)
`
`U.S Class(es): 046
`
`Basis Information (Case Level)
`
`Filed Use: No
`
`Filed ITU: Yes
`
`Filed 44D: Yes
`
`Filed 44E: No
`
`Currently Use: No
`
`Currently ITU: Yes
`
`Currently 44E: No
`
`Currently 66A: No
`
`

`

`Filed 66A: No
`
`Filed No Basis: No
`
`Currently No Basis: No
`
`Current Owner(s) Information
`
`Owner Name: Oatly AB
`
`Owner Address: Stora Varvsgatan 6 A
`Malmö SWEDEN 21119
`
`Legal Entity Type: aktiebolag (ab)
`
`State or Country
`Where Organized:
`
`SWEDEN
`
`Attorney/Correspondence Information
`
`Attorney Name: Jonathan A. Hyman
`
`Docket Number: AWAP043.021T
`
`Attorney of Record
`
`Attorney Primary
`Email Address:
`
`efiling@knobbe.com
`
`Attorney Email
`Authorized:
`
`Yes
`
`Correspondent
`
`Correspondent
`Name/Address:
`
`Jonathan A. Hyman
`Knobbe Martens Olson & Bear LLP
`2040 Main Street, 14th Floor
`Irvine, CALIFORNIA UNITED STATES 92614
`
`Phone: 310-551-3450
`
`Fax: 949-760-9502
`
`Correspondent e-
`mail:
`
`efiling@knobbe.com
`jonathan.hyman@knobbe.com
`
`Correspondent e-
`mail Authorized:
`
`Yes
`
`Jonathan A. Hyman
`
`Phone: 310-551-3450
`
`Domestic Representative
`
`Domestic
`Representative
`Name:
`
`Fax: 949-760-9502
`
`Domestic
`Representative e-
`mail:
`
`efiling@knobbe.com
`
`Domestic
`Representative e-
`mail Authorized:
`
`Yes
`
`Prosecution History
`
`Date
`
`Description
`
`Jun. 14, 2021
`
`APPLICANT/CORRESPONDENCE CHANGES (NON-RESPONSIVE) ENTERED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF CORRESPONDENCE RECEIVED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF DOMESTIC REPRESENTATIVES ADDRESS
`
`Jun. 14, 2021
`
`ATTORNEY/DOM.REP.REVOKED AND/OR APPOINTED
`
`Jun. 14, 2021
`
`TEAS REVOKE/APP/CHANGE ADDR OF ATTY/DOM REP RECEIVED
`
`Jun. 14, 2021
`
`TEAS CHANGE OF OWNER ADDRESS RECEIVED
`
`Jan. 13, 2021
`
`NOTIFICATION OF LETTER OF SUSPENSION E-MAILED
`
`Jan. 13, 2021
`
`LETTER OF SUSPENSION E-MAILED
`
`Jan. 13, 2021
`
`SUSPENSION LETTER WRITTEN
`
`Jan. 11, 2021
`
`ASSIGNED TO EXAMINER
`
`Nov. 20, 2020
`
`NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM
`
`Oct. 10, 2020
`
`NEW APPLICATION ENTERED IN TRAM
`TM Staff and Location Information
`
`TM Attorney: DANG, PETER T
`
`Current Location: TMO LAW OFFICE 121 - EXAMINING
`ATTORNEY ASSIGNED
`
`TM Staff Information
`
`Law Office
`Assigned:
`
`LAW OFFICE 121
`
`File Location
`
`Date in Location: Jan. 13, 2021
`
`Proceeding
`Number
`
`88888
`
`6332
`
`6332
`
`92856
`
`92856
`
`

`

`EXHIBIT 2
`
`EXHIBIT 2
`
`

`

`Document title: Vegan Milk Created By AI Now in Whole Foods Nationwide
`Capture URL: https://www.livekindly.co/vegan-milk-created-by-ai-whole-foods-nationwide/
`Capture timestamp (UTC): Mon, 21 Jun 2021 19:01:40 GMT
`
`Page 1 of 3
`
`

`

`Document title: Vegan Milk Created By AI Now in Whole Foods Nationwide
`Capture URL: https://www.livekindly.co/vegan-milk-created-by-ai-whole-foods-nationwide/
`Capture timestamp (UTC): Mon, 21 Jun 2021 19:01:40 GMT
`
`Page 2 of 3
`
`

`

`Document title: Vegan Milk Created By AI Now in Whole Foods Nationwide
`Capture URL: https://www.livekindly.co/vegan-milk-created-by-ai-whole-foods-nationwide/
`Capture timestamp (UTC): Mon, 21 Jun 2021 19:01:40 GMT
`
`Page 3 of 3
`
`

`

`EXHIBIT 3
`
`EXHIBIT 3
`
`

`

`Generated on: This page was generated by TSDR on 2021-06-21 15:07:29 EDT
`
`Mark: X NOT MAYO
`
`US Serial Number: 86813202
`
`US Registration
`Number:
`
`5034959
`
`Filed as TEAS RF: Yes
`
`Register: Principal
`
`Mark Type: Trademark
`
`TM5 Common Status
`Descriptor:
`
`Application Filing
`Date:
`
`Nov. 08, 2015
`
`Registration Date: Sep. 06, 2016
`
`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: Sep. 06, 2016
`
`Publication Date: Jun. 21, 2016
`
` 
`
`Mark Literal
`Elements:
`
`X NOT MAYO
`
`Standard Character
`Claim:
`
`No
`
`Mark Information
`
`Mark Drawing
`Type:
`
`Description of
`Mark:
`
`3 - AN ILLUSTRATION DRAWING WHICH INCLUDES WORD(S)/ LETTER(S)/NUMBER(S)
`
`The mark consists of the stylized wording "NOT MAYO" between two horizontal lines. Centered above the wording and lining is an "X".
`
`Color(s) Claimed: Color is not claimed as a feature of the mark.
`
`Disclaimer: "NOT MAYO"
`
`Design Search
`Code(s):
`
`26.17.13 - Underlined words or letters; Letters or words underlined and/or overlined by one or more strokes or lines; Overlined words
`or letters
`
`Goods and Services
`
`Note:
`The following symbols indicate that the registrant/owner has amended the goods/services:
`Brackets [..] indicate deleted goods/services;
`Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; and
`Asterisks *..* identify additional (new) wording in the goods/services.
`
`For: Vegetable-based spread; mayonnaise substitute
`
`International
`Class(es):
`
`030 - Primary Class
`
`Class Status: ACTIVE
`
`Basis: 1(a)
`
`U.S Class(es): 046
`
`First Use: Oct. 01, 2015
`
`Use in Commerce: Oct. 01, 2015
`
`Basis Information (Case Level)
`
`Filed Use: Yes
`
`Filed ITU: No
`
`Filed 44D: No
`
`Filed 44E: No
`
`Currently Use: Yes
`
`Currently ITU: No
`
`Currently 44E: No
`
`Currently 66A: No
`
`

`

`Filed 66A: No
`
`Filed No Basis: No
`
`Currently No Basis: No
`
`Current Owner(s) Information
`
`Owner Name: The Not Company SpA
`
`Owner Address: Peumo 284
`Santiago CHILE
`
`Legal Entity Type: CORPORATION
`
`State or Country
`Where Organized:
`
`CHILE
`
`Attorney/Correspondence Information
`
`Attorney Name: Keesonga Gore
`
`Attorney Primary
`Email Address:
`
`admin@minottgore.com
`
`Correspondent
`Name/Address:
`
`KEESONGA GORE
`MINOTT GORE, P.A.
`201 S. BISCAYNE BLVD.
`SUITE 2800
`MIAMI, FLORIDA UNITED STATES 33131
`
`Attorney of Record
`
`Attorney Email
`Authorized:
`
`Yes
`
`Correspondent
`
`Phone: 3059131333
`
`Correspondent e-
`mail:
`
`admin@minottgore.com
`
`Correspondent e-
`mail Authorized:
`
`Yes
`
`Domestic Representative - Not Found
`Prosecution History
`
`Date
`
`Description
`
`Sep. 06, 2016
`
`REGISTERED-PRINCIPAL REGISTER
`
`Jun. 21, 2016
`
`OFFICIAL GAZETTE PUBLICATION CONFIRMATION E-MAILED
`
`Jun. 21, 2016
`
`PUBLISHED FOR OPPOSITION
`
`Jun. 01, 2016
`
`NOTIFICATION OF NOTICE OF PUBLICATION E-MAILED
`
`May 14, 2016
`
`APPROVED FOR PUB - PRINCIPAL REGISTER
`
`May 10, 2016
`
`TEAS/EMAIL CORRESPONDENCE ENTERED
`
`May 10, 2016
`
`CORRESPONDENCE RECEIVED IN LAW OFFICE
`
`May 10, 2016
`
`TEAS RESPONSE TO OFFICE ACTION RECEIVED
`
`Mar. 08, 2016
`
`NOTIFICATION OF NON-FINAL ACTION E-MAILED
`
`Mar. 08, 2016
`
`NON-FINAL ACTION E-MAILED
`
`Mar. 08, 2016
`
`NON-FINAL ACTION WRITTEN
`
`Mar. 01, 2016
`
`ASSIGNED TO EXAMINER
`
`Nov. 13, 2015
`
`NOTICE OF DESIGN SEARCH CODE E-MAILED
`
`Nov. 12, 2015
`
`NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM
`
`Nov. 11, 2015
`
`NEW APPLICATION ENTERED IN TRAM
`TM Staff and Location Information
`
`Current Location: PUBLICATION AND ISSUE SECTION
`
`Date in Location: Sep. 06, 2016
`
`TM Staff Information - None
`
`File Location
`
`Proceeding
`Number
`
`88889
`
`88889
`
`6325
`
`6325
`
`76503
`
`76503
`
`

`

`Reg. No. 5,034,959
`
`Registered Sep. 06, 2016
`
`The Not Company SpA (CHILE CORPORATION)
`Peumo 284
`Santiago CHILE
`
`Int. Cl.: 30
`
`Trademark
`
`Principal Register
`
`CLASS 30: Vegetable-based spread; mayonnaise substitute
`
`FIRST USE 10-1-2015; IN COMMERCE 10-1-2015
`
`The mark consists of the stylized wording "NOT MAYO" between two horizontal lines.
`Centered above the wording and lining is an "X".
`
`No claim is made to the exclusive right to use the following apart from the mark as shown:
`"NOT MAYO"
`
`SER. NO. 86-813,202, FILED 11-08-2015
`TRACY L CROSS, EXAMINING ATTORNEY
`
`

`

`REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION
`
`WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE
`DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.
`
`Requirements in the First Ten  Years*
`What and When to File:
`
`First Filing Deadline:  You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th
`
`years after the registration date.
`
` See 15 U.S.C. §§1058, 1141k.
`
` If the declaration is accepted, the
`
`registration will continue in force for the remainder of the ten-year period, calculated from the registration
`
`date, unless cancelled by an order of the Commissioner for Trademarks or a federal court.
`
`Second Filing Deadline:  You must file a Declaration of Use (or Excusable Nonuse) and an Application
`
`for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.
`
`Requirements in Successive Ten-Year Periods*
`What and When to File:
`
` and  an  Application for Renewal
`You must file a Declaration of Use (or Excusable Nonuse)
`between every 9th and 10th-year period, calculated from the registration date.*
`
`Grace Period Filings*
`
`The above documents will be accepted as timely if filed within six months after the deadlines listed above with
`the payment of an additional fee.
`
`*ATTENTION MADRID PROTOCOL REGISTRANTS:  The holder of an international registration with an
`extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use
`(or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO).
`The time periods for filing are based on the U.S. registration date (not the international registration date).  The
`deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for
`nationally issued registrations.  See 15 U.S.C. §§1058, 1141k.  However, owners of international registrations
`do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying
`international registration at the International Bureau of the  World Intellectual Property Organization, under
`Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the
`date of the international registration.  See 15 U.S.C. §1141j.  For more information and renewal forms for the
`international registration, see http://www.wipo.int/madrid/en/.
`
`NOTE:  Fees and requirements for maintaining registrations are subject to change.  Please check the
`USPTO website for further information.
` With the exception of renewal applications for registered
`extensions of protection, you can file the registration maintenance documents referenced above online at h
`ttp://www.uspto.gov.
`
`NOTE:  A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark
`owners/holders who authorize e-mail communication and maintain a current e-mail address with the
`USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark
`Electronic  Application System (TEAS) Correspondence  Address and Change of Owner  Address Forms
`available at http://www.uspto.gov.
`
`Page: 2 of 2 / RN # 5034959
`
`

`

`From:
`Sent:
`To:
`Subject:
`
`TMOfficialNotices@USPTO.GOV
`Tuesday, June 21, 2016 00:46 AM
`admin@minottgore.com
`Official USPTO Notice of Publication Confirmation: U.S. Trademark SN 86813202: X NOT MAYO (Stylized/Design)
`
`TRADEMARK OFFICIAL GAZETTE PUBLICATION CONFIRMATION
`
`U.S. Serial Number:   86813202
`Mark:   X NOT MAYO (Stylized/Design)
`International Class(es):   030
`Owner:  The Not Company SpA
`Docket/Reference Number:  
`
`Click on the following link or paste the URL into an internet browser: https://tmog.uspto.gov/#issueDate=2016-06-21&serialNumber=86813202
`
`The mark identified above has been published in the Trademark Official Gazette (TMOG) on Jun 21, 2016.
` 
`To Review the Mark in the TMOG:
` 
` 
` 
`On the publication date or shortly thereafter, the applicant should carefully review the information that appears in the TMOG for accuracy.  For corrections or amendments after
`publication, please use the Post-Approval/Publication/Post-Notice of Allowance (NOA) Amendment Form, accessible at https://teas.uspto.gov/office/ppa.  For general
`information about this notice, please contact the Trademark Assistance Center at 1-800-786-9199.
` 
`Significance of Publication for Opposition:
` 
`   * Any party who believes it will be damaged by the registration of the mark may file a notice of opposition (or extension of time therefor) with the Trademark Trial and Appeal
`Board.  If no party files an opposition or extension request within thirty (30) days after the publication date, then eleven (11) weeks after the publication date a certificate of
`registration should issue.
`
` 
`To check the status of the application, go to https://tsdr.uspto.gov/#caseNumber=86813202&caseType=SERIAL_NO&searchType=statusSearch or contact the Trademark
`Assistance Center at 1-800-786-9199.  Please check the status of the application at least every three (3) months after the application filing date.
` 
`To view this notice and other documents for this application on-line, go to
`https://tsdr.uspto.gov/#caseNumber=86813202&caseType=SERIAL_NO&searchType=documentSearch.  NOTE: This notice will only become available on-line the next
`business day after receipt of this e-mail.
` 
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 
`1.
`
` 
`3.
`
` 
`4.
`
`Serial No.:
`86-813,202
`
`International Class(es):
`30
`
`Publication Date:
`Jun 21, 2016
`
`Jun 1, 2016
`
`NOTICE OF PUBLICATION
`
`2.
`
`Mark:
`X NOT MAYO
`(STYLIZED/DESIGN)
`
`5.
`
`Applicant:
`The Not Company SpA
`
`Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, VA  22313-1451
`www.uspto.gov
`
` 
` 
`The mark of the application identified appears to be entitled to registration. The mark will, in accordance with Section 12(a) of the Trademark Act of 1946, as amended, be
`published in the Official Gazette on the date indicated above for the purpose of opposition by any person who believes he will be damaged by the registration of the mark. If no
`opposition is filed within the time specified by Section 13(a) of the Statute or by rules 2.101 or 2.102 of the Trademark Rules, the Commissioner of Patents and Trademarks may
`issue a certificate of registration.
`
`Copies of the trademark portion of the Official Gazette containing the publication of the mark may be obtained from:
` 
`
`The Superintendent of Documents
`U.S. Government Printing Office
`PO Box 371954
`Pittsburgh, PA 15250-7954
`Phone: 202-512-1800
`
` 
`By direction of the Commissioner.
` 
` 
` 
`
` 
`
` 
`
`Email Address(es):
`
`admin@minottgore.com
`
`

`

`From:
`Sent:
`To:
`Subject:
`
`TMOfficialNotices@USPTO.GOV
`Wednesday, June 1, 2016 04:01 AM
`admin@minottgore.com
`Official USPTO Notification of Notice of Publication: U.S. Trademark SN 86813202: X NOT MAYO (Stylized/Design)
`
`NOTIFICATION OF "NOTICE OF PUBLICATION"
`
`Your trademark application (Serial No. 86813202) is scheduled to publish in the Official Gazette on Jun 21, 2016.  To preview the Notice of Publication, go to
`http://tdr.uspto.gov/search.action?sn=86813202.  If you have difficulty accessing the Notice of Publication, contact TDR@uspto.gov.
` 
`PLEASE NOTE:
`   1.
`The Notice of Publication may not be immediately available but will be viewable within 24 hours of this e-mail notification.
`   2.
`You will receive a second e-mail on the actual "Publication Date," which will include a link to the issue of the Official Gazette in which the mark has published.
` 
`Do NOT hit "Reply" to this e-mail notification.  If you have any questions about the content of the Notice of Publication, contact TMPostPubQuery@uspto.gov.
`
`

`

`Trademark Snap Shot Publication Stylesheet
`(Table presents the data on Publication Approval)
`
`OVERVIEW
` 
`
`86813202
`
`0000000
`
`FILING DATE
`
`REG DATE
`
`PRINCIPAL
`
`MARK TYPE
`
`N/A
`
`INTL REG DATE
`
`CROSS, TRACY L
`
`L.O. ASSIGNED
`
`PUB INFORMATION
` 
`
`05/17/2016
`
`06/21/2016
`
`681-PUBLICATION/ISSUE REVIEW COMPLETE
`
`SERIAL NUMBER
`
`REG NUMBER
`
`REGISTER
`
`INTL REG #
`
`TM ATTORNEY
`
`RUN DATE
`
`PUB DATE
`
`STATUS
`
`11/08/2015
`
`N/A
`
`TRADEMARK
`
`N/A
`
`109
`
`STATUS DATE
`
`05/14/2016
`
`LITERAL MARK ELEMENT
`
`X NOT MAYO
`
` 
`
`DATE ABANDONED
`
`SECTION 2F
`
`SECTION 8
`
`SECTION 15
`
`RENEWAL FILED
`
`N/A
`
`NO
`
`NO
`
`NO
`
`NO
`
`DATE CANCELLED
`
`SECTION 2F IN PART
`
`SECTION 8 IN PART
`
`REPUB 12C
`
`RENEWAL DATE
`
`N/A
`
`NO
`
`NO
`
`N/A
`
`N/A
`
`DATE AMEND REG
`
`N/A
`
` 
`
` 
`
`FILED BASIS
`
`FILING BASIS
` 
`
`CURRENT BASIS
`
`1 (a)
`
`1 (b)
`
`44D
`
`44E
`
`66A
`
`NO BASIS
`
`YES
`
`NO
`
`NO
`
`NO
`
`NO
`
`NO
`
`1 (a)
`
`1 (b)
`
`44D
`
`44E
`
`66A
`
`NO BASIS
`
`YES
`
`NO
`
`NO
`
`NO
`
`NO
`
`NO
`
`1 (a)
`
`1 (b)
`
`44D
`
`44E
`
` 
`
` 
`
`AMENDED BASIS
`
`NO
`
`NO
`
`NO
`
`NO
`
` 
`
` 
`
`STANDARD CHARACTER MARK
`
`LITERAL MARK ELEMENT
`
`MARK DRAWING CODE
`
`MARK DATA
` 
`
`N