throbber
Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1215363
`06/14/2022
`
`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
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`S&G Hampton Sun, LLC
`
`Limited Liability Company
`
`Citizenship
`
`New York
`
`241 WEST 30TH STREET, 4TH FLOOR
`NEW YORK, NY 10001
`UNITED STATES
`
`ROBERT L. POWLEY
`POWLEY & GIBSON, P.C.
`60 HUDSON ST.
`SUITE 2203
`NEW YORK, NY 10013
`UNITED STATES
`Primary email: trademarks@powleygibson.com
`Secondary email(s): rlpowley@powleygibson.com, tlin@powleygibson.com
`212-226-5054
`
`Docket no.
`
`162.94
`
`Applicant information
`
`Application no.
`
`90835433
`
`Opposition filing
`date
`
`Applicant
`
`06/14/2022
`
`Hamptons Aromatherapy, Inc.
`181 MIDDLE HIGHWAY
`EAST HAMPTON, NY 11937
`UNITED STATES
`
`Goods/services affected by opposition
`
`Publication date
`
`05/17/2022
`
`Opposition period
`ends
`
`06/16/2022
`
`Class 003. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Lotions for cosmetic purposes; Lotions for
`face and body care; After-sun lotions; Age retardant lotion; Aromatic preparations, namely, lotions us-
`ing ingredients from the sea; Bath lotion; Bathing lotions; Beauty lotions; Body lotion; Body mask lo-
`tion; Cosmetic preparations, namely, firming lotions; Cosmetics in the form of milks, lotions and emul-
`sions; Faceand body lotions; Face milk and lotions; Facial lotion; Hand lotions; Massage lotions;
`Moisturizing body lotions; Non-medicated skin care creams and lotions; Non-medicated skin care pre-
`parations, namely, creams, lotions, gels, toners, cleaners and peels; Non-medicated skin care pre-
`parations, namely, skin creams using ingredients from the sea; Non-medicated stimulating lotions for
`the skin; Scented body lotions and creams; Skin lotion; Skin lotions; Skin and body topical lotions,
`creams and oils for cosmetic use; Skin cleansing lotion; Styling lotions; Sun care lotions; Toning lo-
`tion, for the face, body and hands; facial scrubs; cosmetic masks; cosmetic soaps; lip balms; salves
`in the nature of non-medicated herbal body care products; hydrosol in thenature of toilet water; bath
`and body products in the nature of cosmetic body care preparations that include clay, saltand sea-
`weed, namely, body scrubs, non-fragranced shower gels
`
`

`

`Class 005. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Antibacterial hand soaps; Medicated lip-
`balms; Anti-inflammatory salves
`
`Class 021. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Bath products, namely, body sponges
`
`Class 025. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Sleep masks
`
`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.
`
`3851704
`
`Register
`
`Principal
`
`Registration date
`
`09/21/2010
`
`Word mark
`
`Design mark
`
`HAMPTON SUN
`
`Application date
`
`01/30/2004
`
`Foreign priority
`date
`
`NONE
`
`Description of
`mark
`
`Goods/services
`
`NONE
`
`Class 003. First use: First Use: May 1, 2005 First Use In Commerce: May 1,
`2005
`Tanning and sunscreen preparations; sunblock; sun care lotion; sun cream; sun
`tan gel; sun tan lotion; suntan oil; cosmetics and skin care products, namely,
`cream for face, after sun moisture, aftersun body cooling spray, sunless tan-
`ninggel, after sun cream for face and body,face and body moisturizers, skin lo-
`tion, and after sun lotion; [ hair and ] body care products, namely, body cream,
`andbody lotion; cosmetic preparations for body care; facial cream; facial lotion; [
`bathing products, namely, bath soaps, bath gels, ] fragrances for personal use[
`and room fragrances ]
`
`U.S. registration
`no.
`
`5617639
`
`Register
`
`Principal
`
`Application date
`
`09/05/2014
`
`Registration date
`
`11/27/2018
`
`Foreign priority
`
`NONE
`
`

`

`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`date
`
`HAMPTON SUN
`
`NONE
`
`Class 003. First use: First Use: Jun 5, 2018 First Use In Commerce: Jul 27,
`2018
`Room fragrances; and air fragrancing preparations; passive scent diffusers,
`namely, air diffusers comprised of a wick and sold with oil in a container used to
`emit scent by diffusion into the air
`Class 004. First use: First Use: Jun 5, 2018 First Use In Commerce: Jul 27,
`2018
`Candles; scented candles
`
`Attachments
`
`78360413#TMSN.png( bytes )
`2022.06.14 Notice of Opp - HAMPTONS ALCHEMIST.pdf(72238 bytes )
`Exhibit A 3851704.pdf(172505 bytes )
`Exhibit B 5617639.pdf(168134 bytes )
`
`Signature
`
`/Robert L. Powley/
`
`Name
`
`Date
`
`Robert L. Powley
`
`06/14/2022
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of Application Serial No. 90/835,433
`For the Mark: HAMPTONS ALCHEMIST
`Published in the Official Gazette on May 17, 2022
`-----------------------------------------------------x
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`S&G HAMPTON SUN, LLC,
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`Opposer,
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`:
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`-against-
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`:
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`HAMPTONS AROMATHERAPY, INC.,
`:
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`:
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`Applicant.
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`:
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`:
`-----------------------------------------------------x
`
`
`Opposition No. _________________
`
`
`
`NOTICE OF OPPOSITION
`
`
`
`S & G Hampton Sun, LLC (hereinafter “Opposer”) believes that it will be damaged by
`
`registration of the stylized trademark HAMPTONS ALCHEMIST. On July 19, 2021, Hamptons
`
`Aromatherapy, Inc., (hereinafter “Applicant”) filed an in intent-to-use basis application to
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`register the mark HAMPTONS ALCHEMIST in stylized form
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`(hereinafter “Applicant’s Mark”), as shown in Application Serial No. 90/835,433, (hereinafter
`
`“Applicant’s ‘433 Application”), for “Lotions for cosmetic purposes; Lotions for face and body
`
`care; After-sun lotions; Age retardant lotion; Aromatic preparations, namely, lotions using
`
`ingredients from the sea; Bath lotion; Bathing lotions; Beauty lotions; Body lotion; Body mask
`
`lotion; Cosmetic preparations, namely, firming lotions; Cosmetics in the form of milks, lotions
`
`and emulsions; Face and body lotions; Face milk and lotions; Facial lotion; Hand lotions;
`
`Massage lotions; Moisturizing body lotions; Non-medicated skin care creams and lotions; Non-
`
`medicated skin care preparations, namely, creams, lotions, gels, toners, cleaners and peels; Non-
`
`

`

`medicated skin care preparations, namely, skin creams using ingredients from the sea; Non-
`
`medicated stimulating lotions for the skin; Scented body lotions and creams; Skin lotion; Skin
`
`lotions; Skin and body topical lotions, creams and oils for cosmetic use; Skin cleansing lotion;
`
`Styling lotions; Sun care lotions; Toning lotion, for the face, body and hands; scrubs; masks;
`
`soaps; balms; salves; hydrosol; bath and body products that include clay, salt and seaweed” in
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`International Class 3.
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`
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`On April 5, 2022, in response to the Trademark Examining Attorney’s office action
`
`issued on April 5, 2022, Applicant’s ‘433 Application was amended. The Applicant amended
`
`their International Class 3 description to the following, “Lotions for cosmetic purposes; Lotions
`
`for face and body care; After-sun lotions; Age retardant lotion; Aromatic preparations, namely,
`
`lotions using ingredients from the sea; Bath lotion; Bathing lotions; Beauty lotions; Body lotion;
`
`Body mask lotion; Cosmetic preparations, namely, firming lotions; Cosmetics in the form of
`
`milks, lotions and emulsions; Face and body lotions; Face milk and lotions; Facial lotion; Hand
`
`lotions; Massage lotions; Moisturizing body lotions; Non-medicated skin care creams and
`
`lotions; Non-medicated skin care preparations, namely, creams, lotions, gels, toners, cleaners and
`
`peels; Non-medicated skin care preparations, namely, skin creams using ingredients from the
`
`sea; Non-medicated stimulating lotions for the skin; Scented body lotions and creams; Skin
`
`lotion; Skin lotions; Skin and body topical lotions, creams and oils for cosmetic use; Skin
`
`cleansing lotion; Styling lotions; Sun care lotions; Toning lotion, for the face, body and hands;
`
`facial scrubs; cosmetic masks; cosmetic soaps; lip balms; salves in the nature of non-medicated
`
`herbal body care products; hydrosol in the nature of toilet water; bath and body products in the
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`nature of cosmetic body care preparations that include clay, salt and seaweed, namely, body
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`scrubs, non-fragranced shower gels”. In addition, the Applicant added International Class 5 for,
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`

`

`“Antibacterial hand soaps; Medicated lip balms; Anti-inflammatory salves”; International Class
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`21 for, “Bath products, namely, body sponges”; and International Class 25 for “Sleep masks”.
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`(hereinafter collectively referred to as “Applicant’s Goods”). Finally, the Applicant disclaimed
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`the exclusive right to use the word “hamptons” apart from the mark as shown.
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`Opposer hereby timely opposes registration of the stylized trademark HAMPTONS
`
`ALCHEMIST on the following grounds:
`
`1.
`
`Opposer is a limited liability company organized and existing under the laws of
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`New York with a principal place of business at 241 West 30th Street, 4th Floor, New York, New
`
`York 10001.
`
`2.
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`Upon information and belief, Applicant is a corporation organized and existing
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`under the laws of New York with a principal place of business at 181 Middle Highway East
`
`Hampton, New York 11937.
`
`3.
`
`Upon information and belief, Lori MacGarva is principal and/or owner of the
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`Applicant, Hamptons Aromatherapy, Inc. As an individual, Lori MacGarva filed intent-to-use
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`basis applications to register the mark HAMPTONS SEA TO SKIN and the mark HAMPTONS
`
`FARM TO LAUNDRY.
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`4.
`
`The applications for the marks HAMPTONS SEA TO SKIN and HAMPTONS
`
`FARM TO LAUNDRY were opposed by the Opposer in Opposition Proceeding No. 91251698
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`and Opposition Proceeding No. 91251700 respectively. The oppositions were decided in favor of
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`the Opposer on default.
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`5.
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`Opposer is the owner of U.S. Trademark Registration No. 3,851,704, filed
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`January 30, 2004 and issued on September 21, 2010, for the mark HAMPTON SUN (“Opposer’s
`
`‘704 Registration”) in connection with “tanning and sunscreen preparations; sun block; sun care
`
`

`

`lotion; sun cream; sun tan gel; sun tan lotion; suntan oil; cosmetics and skin care products,
`
`namely, cream for face, after sun moisture, after sun body cooling spray, sunless tanning gel,
`
`after sun cream for face and body, face and body moisturizers, skin lotion, and after sun lotion;
`
`body care products, namely, body cream, and body lotion; cosmetic preparations for body care;
`
`facial cream; facial lotion; fragrances for personal use” in International Class 3. This registration
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`has become incontestable pursuant to 15 U.S.C. § 1065.
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`6.
`
`Opposer is also the owner of U.S. Trademark Registration No. 5,617,639, filed
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`September 5, 2014 and issued on November 27, 2018, for the mark HAMPTON SUN
`
`(“Opposer’s ‘639 Registration”) in connection with “room fragrances; and air fragrancing
`
`preparations; passive scent diffusers, namely, air diffusers comprised of a wick and sold with oil
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`in a container used to emit scent by diffusion into the air” in International Class 3, as well as for
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`“candles; scented candles” in International Class 4.
`
`7.
`
`A copy of records from the Trademark Electronic Search System (“TESS”) of the
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`United States Patent and Trademark Office (“USPTO”) showing records of Opposer’s ‘704
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`Registration for its HAMPTON SUN mark is attached hereto as Exhibit A. A copy of records
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`from TESS of the USPTO showing records of Opposer’s ‘639 Registration for its HAMPTON
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`SUN mark is attached hereto as Exhibit B. (Opposer’s ‘704 Registration and Opposer’s ‘639
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`Registration are sometimes hereinafter collectively referred to as “Opposer’s Registrations”; the
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`HAMPTON SUN marks as embodied in Opposer’s Registrations are hereinafter referred to as
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`“Opposer’s Marks”).
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`8.
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`Opposer’s Registrations are valid and subsisting and are evidence of Opposer’s
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`ownership of the Opposer’s Marks, and exclusive right to use Opposer’s Marks in commerce in
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`connection with the goods described in Opposer’s Registrations.
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`

`

`9.
`
`Opposer has used the mark HAMPTON SUN in connection with the sale of the
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`goods described in Opposer’s ‘704 Registration, in both intrastate and in interstate commerce,
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`since at least as early as May 1, 2005, and such use has been continuous and is ongoing.
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`10.
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`Opposer has used the mark HAMPTON SUN in connection with the sale of the
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`goods described in Opposer’s ‘639 Registration since at least as early as June 5, 2018, and has
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`used the mark HAMPTON SUN in connection with the sale of the goods described in Opposer’s
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`‘639 Registration in interstate commerce since at least as early as July 27, 2018, with such use
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`being continuous and ongoing.
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`11.
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`Opposer has expended substantial effort and expense in promoting Opposer’s
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`Marks. As a result, Opposer has developed extensive goodwill with respect to Opposer’s Marks,
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`and consumers have come to know, rely upon, and recognize the source of the goods described
`
`in Opposer’s Registrations as originating from a single source, that is, Opposer.
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`12.
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`Opposer’s rights in Opposer’s Marks predate and are superior to any rights
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`Applicant has in the intent-to-use application for Applicant’s Mark.
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`13.
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`Applicant’s Mark so resembles Opposer’s Marks in appearance, sound, and
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`commercial impression and Applicant’s Goods are the same or closely related to the goods listed
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`in Opposer’s Registrations, such that when Applicant’s Mark is applied to Applicant’s Goods,
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`such goods would be likely to cause confusion, or to cause mistake, or to deceive consumers, all
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`to the detriment of Opposer. Consumers would mistakenly believe that Applicant’s Goods are
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`associated with, endorsed, or sponsored by Opposer, when such is not the case.
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`14.
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`Applicant’s Mark is highly similar to Opposer’s Marks and will create a
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`likelihood of confusion with Opposer’s Marks.
`
`

`

`15.
`
`Applicant’s Goods are closely related to the goods listed in Opposer’s
`
`Registrations.
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`16.
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`Upon information and belief, Applicant’s Goods will travel in the same or similar
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`channels of trade and will be directed at the same or similar consumers as those looking to
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`purchase the goods sold by Opposer using Opposer’s Marks.
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`17.
`
`Opposer will be damaged by registration of Applicant’s Mark because such
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`registration will give Applicant prima facie ownership of and the exclusive right to use
`
`Applicant’s Mark in connection with Applicant’s Goods, which is confusingly similar to
`
`Opposer’s Marks, in derogation of Opposer’s superior rights in Opposer’s Marks.
`
`18.
`
` This Opposition is timely filed and accompanied by the appropriate filing fee.
`
`
` WHEREFORE, Opposer respectfully requests that the registration sought by Applicant be
`
`refused, and that this Notice of Opposition be sustained.
`
`
`The required fee of $600.00 for Opposition against the subject application is enclosed herewith.
`
`Dated: June 14, 2022
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`Respectfully submitted,
`
`
`
`/s/Robert L. Powley
`Robert L. Powley
`rlpowley@powleygibson.com
`James M. Gibson
`jmgibson@powleygibson.com
`Thomas H. Curtin
`thcurtin@powleygibson.com
`Stephen M. Ankrom
`smankrom@powleygibson.com
`
`POWLEY & GIBSON, P.C.
`60 Hudson Street, Suite 2203
`New York, NY 10013
`Telephone: (212) 226-5054
`Facsimile: (212) 226-5085
`Attorneys for Opposer
`
`
`
`
`
`
`
`

`

`CERTIFICATE OF SERVICE UNDER 37 C.F.R §2.119
`
`
` I
`
` hereby certify that on this 14th day of June, 2022, a true and correct copy of the foregoing
`Notice of Opposition was served on Applicant by United States Postal Service first class mail,
`postage prepaid, at Applicant’s correspondence address on record in the United States Patent
`and Trademark Office, with a copy sent via email to Applicant’s listed attorney:
`
`
`Hamptons Aromatherapy, Inc.
`181 Middle Highway
`East Hampton, NY 11937
`
`-with an email copy to-
`
`Sarah I. Cohen
`Lombard & Geliebter LLP
`scohen@lombardip.com; ipdocket@lombardip.com; ipdocketing@lombardip.com
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`/s/ Tina Lin
`Tina Lin
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`

`

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`
`
`EXHIBIT A
`EXHIBIT A
`
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`

`

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