Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1222353
`
`Filing date:
`
`07/16/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91276856
`
`Party
`
`Correspondence
`address
`
`Defendant
`Burroughs Diane C.
`
`BURROUGHS DIANE C.
`5025 N SUNGOLD LN
`CASTLE ROCK, CO 80109
`UNITED STATES
`Primary email: dianecburroughs@gmail.com
`Secondary email(s): birdsupplies@gmail.com
`719-650-0812
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Answer
`
`Rexford Brabson
`
`rex@t-rexlaw.com
`
`/Rexford Brabson/
`
`07/16/2022
`
`Attachments
`
`2022.07.16-Answer.pdf(250838 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA1222353
`
`Filing date:
`
`07/16/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91276856
`
`Party
`
`Correspondence
`address
`
`Defendant
`Burroughs Diane C.
`
`BURROUGHS DIANE C.
`5025 N SUNGOLD LN
`CASTLE ROCK, CO 80109
`UNITED STATES
`Primary email: dianecburroughs@gmail.com
`Secondary email(s): birdsupplies@gmail.com
`719-650-0812
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Answer
`
`Rexford Brabson
`
`rex@t-rexlaw.com
`
`/Rexford Brabson/
`
`07/16/2022
`
`Attachments
`
`2022.07.16-Answer.pdf(250838 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the matter of Trademark Application Ser. No. 90858339
`Applicant: Diane C. Burroughs
`Mark:
`UNRUFFLEDRX-SCIENCE-BACKED PARROT WELLNESS
`
`
`
`
`
`Wellness Pet, LLC
`
`Opposer,
`
`v.
`
`Diane C. Burroughs
`
`
`
`Applicant.
`
`)
`)
`)
`)
`) Opposition No. 91276856
`)
`)
`)
`)
` )
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`
`
`
`
`
`
`
`
`APPLICANT’S ANSWER
`
`
`In response to Wellness Pet, LLC’s (“Opposer”) Notice of Opposition, Applicant Diane
`
`C. Burroughs (“Applicant”) responds as follows:
`
`Applicant denies each and every allegation of the Notice of Opposition unless it is
`
`expressly admitted herein:
`
`1)
`
`Paragraph 1 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`2)
`
`Admitted to the extent that the information listed appears to be the same information
`
`listed in Applicant’s Application.
`
`
`
`1
`
`
`
`3)
`
` Admitted to the extent that the information listed appears to be the same information
`
`listed in Applicant’s Application.
`
`4)
`
`Applicant is without sufficient knowledge or information to form a belief as to the
`
`allegations of paragraph 4, and therefore, denies the same.
`
`5)
`
`Applicant is without sufficient knowledge or information to form a belief as to the
`
`allegations of paragraph 5, and therefore, denies the same.
`
`6)
`
`Paragraph 6 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`7)
`
`Paragraph 7 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`8)
`
`Paragraph 8 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`9)
`
`Paragraph 9 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`10) Applicant is without sufficient knowledge or information to form a belief as to the
`
`allegations of paragraph 10, and therefore, denies the same.
`
`11)
`
`Paragraph 11 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`12)
`
`Paragraph 12 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`13)
`
`Paragraph 13 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`
`
`2
`
`
`
`14)
`
`Paragraph 14 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`15)
`
`Paragraph 15 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`16)
`
`Paragraph 16 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`17)
`
`Paragraph 17 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`18)
`
`Paragraph 18 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`19)
`
`Paragraph 19 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`20)
`
`Paragraph 20 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`21)
`
`Paragraph 21 calls for a legal conclusion to which no response is necessary. To the extent
`
`a response is necessary, Applicant denies the allegations.
`
`
`
`AFFIRMATIVE DEFENSES
`
`First Affirmative Defense: There is no likelihood of confusion, mistake, or deception
`
`1)
`
`between Opposer’s Marks and Applicants’ Mark.
`
`a. First, Applicant’s Mark and Opposer’s WELLNESS trademarks differ in sight,
`
`sound, meaning, and commercial impression.
`
`i. Applicant’s Mark is a distinctive five-word phrase, while Opposer’s
`
`Marks consist of other phrases including the word “wellness” and design
`
`
`
`3
`
`
`
`marks including the word “wellness”, consisting of the word “wellness”
`
`with an illustrated smiling sun. Opposer has not obtained a U.S. trademark
`
`registration for the term “wellness” as a singular word mark. The
`
`UNRUFFLEDRX-SCIENCE-BACKED PARROT element is wholly
`
`unique and entirely missing from Opposer’s Marks. Indeed, Applicant’s
`
`Mark and Opposer’s Marks only overlap with one word, “wellness”. The
`
`similarity is diminished by the narrowing of the meaning of the word
`
`“wellness” to “parrot wellness” in Applicant’s Mark, serving as a
`
`descriptor for products that will facilitate the good health of parrots. The
`
`similarity is further diminished by the distinctiveness and fancifulness of
`
`Applicant’s UNRUFFLEDRX, which takes the forefront of the mark.
`
`ii. UNRUFFLEDRX-SCIENCE-BACKED PARROT WELLNESS has a
`
`commercial impression unlike Opposer’s Marks, in that it evokes a more
`
`specific connotation. Applicant’s Mark evokes a specific message and
`
`narrows the meaning. Applicant’s Mark contains the fanciful word
`
`UNRUFFLEDRX, which derives from an association with birds (ruffled
`
`feathers) and prescription medicine (Rx is commonly known to most as
`
`the symbol for a medical prescription). This commercial impression is
`
`demonstrated by Applicant’s design -
`
`. This
`
`word UNRUFFLEDRX clearly distinguishes itself from Opposer’s Marks
`
`and precludes any likelihood of confusion.
`
`
`
`4
`
`
`
`iii. The phrase “science-backed parrot wellness” serves to suggest the nature
`
`of Applicant’s goods and would be understood by consumers as such and
`
`not as a reference to Opposer. Applicant has already disclaimed the
`
`exclusive right to use “SCIENCE-BACKED PARROT WELLNESS”
`
`because of its descriptiveness. The meaning of “science-backed parrot
`
`wellness” indicates scientifically-tested products which enhance the good
`
`health of parrots. “Wellness” is a common word for health-promoting
`
`products.
`
`b. Second, there are numerous other registrations containing the term “wellness” for
`
`related goods and services, a representative list of which follows, meaning that
`
`Opposer’s scope of protection must be limited to the goods and services for which
`
`it has registered:
`
`i. WELLNESS SPORTHORSE (Reg. No. 6176745) for Horse feed in Class
`
`031.
`
`ii.
`
`ESTABLISHED 1979 EARTH ANIMAL WELLNESS
`
`& LONGEVITY SOLUTIONS (Reg. No. 5626044) for nutritional
`
`supplements for pets in Class 005; Pet treats and pet food in Class 031;
`
`Computerized online retail store, wholesale store, and mail order services,
`
`all featuring natural pet care products, pet food and nutritional products in
`
`Class 035.
`
`
`
`5
`
`
`
`iii. WELLNESS & LONGEVITY SOLUTIONS (Reg. No. 5577616) for
`
`Nutritional supplements for pets in Class 005; Pet treats and pet food in
`
`Class 031; Computerized online retail store, wholesale store, and mail
`
`order services, all featuring natural pet care products, pet food and
`
`nutritional products in Class 035.
`
`iv.
`
`NUTRAM SOUND BALANCED WELLNESS
`
`(Reg. No. 5105504) for Pet food in Class 031.
`
`v.
`
`AKIN PET WELLNESS (Reg. No. 4928695) for
`
`Pet food; Pet treats in Class 031.
`
`vi. WELLNESS EQUI-SAFE (Reg. No. 3796326) for Horse feed in Class
`
`031.
`
`vii.
`
` A.W.P. ANIMAL WELLNESS PRODUCTS
`
`(Reg. No. 4184855) for Vitamin additives to foodstuffs for animals for
`
`veterinary purposes; mineral additives to foodstuffs for animals for
`
`veterinary purposes; nutritional stimulants for veterinary use; preparations
`
`and additives with oligoelements for veterinary use; dietary supplements
`
`for veterinary use; anti-inflammatory creams for animals in Class 005;
`
`
`
`6
`
`
`
`Foodstuffs and feeds for animals; non-medicated reconstituent additives
`
`for animal feed; non-medicated nutritional additives for animal feed in
`
`Class 031.
`
`viii.
`
`GREEN DOG DENTAL & WELLNESS
`
`(Reg. No. 3571693) for Dietary supplements for pets; Medicated dental
`
`preparations for pets, namely, pet treats, food toppers, oral sprays, and
`
`topical sprays; Plant extracts for medical, veterinary and pharmaceutical
`
`purposes; Veterinary preparations for pet's dental health and oral hygiene;
`
`Veterinary preparations for anxiety, hyperactivity, and sleeplessness
`
`in pets in Class 005.
`
`ix.
`
`BUDDY CUSTARD CANINE WELLNESS
`
`PROGRAM (Reg. No. 6091851) for Animal feed additives for use as
`
`nutritional supplements; Dietary supplements for pets; Dietetic foods
`
`adapted for veterinary use; Nutraceuticals for use as a dietary supplement
`
`for pet wellness; Nutritional supplements for pets in Class 005.
`
`x. PET WELLNESS ACADEMY (Reg. No. 4749650) for Dietary
`
`supplements for animals; Dietary supplements for pets in Class 005.
`
`xi. CULTIVATING WELLNESS (Reg. No. 5156561) for Dietary and
`
`nutritional supplements; Dietary and nutritional supplements containing
`
`lycopene; Dietary and nutritional supplements for endurance sports;
`
`
`
`7
`
`
`
`Dietary and nutritional supplements used for weight loss; Dietary
`
`beverage supplements for human consumption in liquid and dry mix form
`
`for therapeutic purposes; Dietary fiber for use as an ingredient in the
`
`manufacture of dietary supplements; Dietary food supplements; [
`
`Dietary pet supplements in the form of pet treats; ] Dietary supplement
`
`drink mixes; Dietary supplement for eliminating toxins from the intestinal
`
`tract; Dietary supplemental drinks; Dietary supplemental drinks in the
`
`nature of vitamin and mineral beverages; Dietary supplements; Dietary
`
`supplements also containing lycopene; Dietary supplements consisting
`
`primarily of lycopene; * Ingredients for * dietary supplements for animals;
`
`Dietary supplements for controlling cholesterol; Dietary supplements for
`
`human consumption; [ Dietary supplements for pets; Dietary supplements
`
`for pets in the nature of a powdered drink mix; ] Dietary supplements for
`
`treatment of claustrophobia; Dietary supplements for urinary health;
`
`Dietary supplements in the nature of weight loss powders; Enzyme dietary
`
`supplements; Enzyme food supplements; Food supplements; Food
`
`supplements, namely, anti-oxidants; Health food supplements; Herbal
`
`supplements; Homeopathic supplements; Medicated oils containing
`
`lycopene; Mineral, vitamin, or nutritionally enhanced water; Mixed
`
`vitamin preparations; Multi-vitamin preparations; Vitamin A preparations;
`
`Vitamin and mineral formed and packaged as bars; Vitamin and mineral
`
`preparations for medical use; Vitamin and mineral supplements; Vitamin
`
`and mineral supplements for use as ingredients in the food and
`
`
`
`8
`
`
`
`pharmaceutical industry; Vitamin and mineral supplements for use as
`
`ingredients in food; Vitamin B preparations; Vitamin C preparations;
`
`Vitamin D preparations; Vitamin drops; Vitamin enriched bread for
`
`therapeutic purposes; Vitamin enriched chewing gum; Vitamin enriched
`
`sparkling water; Vitamin enriched water; Vitamin fortified beverages;
`
`Vitamin oils for human consumption; Vitamin preparations; Vitamin
`
`supplement in tablet form for use in making an effervescent beverage
`
`when added to water; Vitamin supplements; Vitamin tablets; Vitamins; *
`
`Ingredients for * vitamins and dietary food supplements for animals;
`
`Vitamins and vitamin preparations; Vitamins for manufacturing use; [
`
`Vitamins for pets; ] Vitamins for use in the manufacture of food in Class
`
`005.
`
`xii.
`
`VISTA WELLNESS CENTER (Reg.
`
`No. 5161283) for Vitamins and dietary supplements for pets; Dietary and
`
`nutritional supplements containing fish oil, flaxseed oil, krill oil, omega 3,
`
`6 and 9 fatty acids, botanical extracts, CoQ10, alpha lipoic acid and
`
`dimethylglycine; Amino acids for nutritional purposes; Herbal
`
`supplements; Nutritional supplements, namely, probiotic compositions;
`
`Powdered nutritional supplement concentrate; Vitamin and mineral
`
`supplements; Liquid vitamin supplements in Class 005.
`
`
`
`9
`
`
`
`xiii.
`
`HEALTHY PET ADVISORY COUNCIL EXPERTS
`
`INCARE & WELLNESS (Reg. No. 6111576) for Pet food; Edible pet
`
`treats in Class 031.
`
`xiv. AGATHA’S PET WELLNESS (Reg. No. 6423892) for On-line wholesale
`
`and retail store services featuring pet supplies, books, pet nutrition and
`
`other pet related products in Class 035.
`
`xv. 5 PILLARS OF PET WELLNESS (Reg. No. 6512148) for Educational
`
`services, namely, providing classes, workshops, seminars, and trainings on
`
`nourishment, exercise and play, comfort, companionship and purpose in
`
`the field of pets; Providing information and advice on nourishment,
`
`exercise and play, comfort, companionship and purpose in the field
`
`of pet training in Class 041.
`
`xvi. PACIFIC WELLNESS (Reg. No. 6176745) for Body and beauty care
`
`cosmetics, namely, non-medicated facial creams, lotions, moisturizers,
`
`serums, and scrubs; Shaving balms, soaps, and creams; baby shampoos;
`
`beauty and body lotions; hair conditioners, hair lotions, shampoos, and
`
`shower gels; toilet soaps; non-medicated skin care preparations, namely,
`
`soaps, lotions, creams, and moisturizers; non-medicated herbal body care
`
`products and bath preparations, namely, salves and soaps; non-medicated
`
`grooming preparations for pets, namely, soaps, creams, bath bombs,
`
`lotions, and shower gels; all of the foregoing containing legally produced
`
`
`
`10
`
`
`
`cannabidiol derived from hemp, as that term is defined in the 2018 Farm
`
`Bill, and containing no more than 0.3% THC on a dry-weight basis in
`
`Class 003.
`
`xvii. WELLNESS REWARDS (Reg. No. 6176745) for Administration of
`
`routine veterinary health care plans for pets; medical claims processing in
`
`the field of routine veterinary health care plans for pets in Class 036.
`
`xviii. SEMINOLE WELLNESS (Reg. No. 3571701) for Horse feed in Class
`
`031.
`
`xix. WELLNESS SAFE & LITE (Reg. No. 3571697) for Horse feed in Class
`
`031.
`
`xx. WELLNESS GROW RIGHT (Reg. No. 3585796) for Horse feed in Class
`
`031.
`
`xxi. WELLNESS SHOW & SPORT (Reg. No. 6176745) for Horse feed in
`
`Class 031.
`
`xxii. WOOFY WELLNESS RANCH (Reg. No. 6176745) for Kennel services,
`
`namely, dog training services; Recreational dog park services in Class
`
`041; Dog day care services; Kennel services, namely, boarding for pets in
`
`Class 043; Pet grooming services; Veterinary services in Class 044.
`
`xxiii.
`
`PWR PET WELLNESS REPORT (Reg. No.
`
`5834886) for providing an interactive website for companion animal
`
`owners featuring personalized pet health information in Class 044.
`
`
`
`11
`
`
`
`xxiv.
`
`VIP·PETCARE WELLNESS CENTER
`
`(Reg. No. 5113818) for Pet care services, namely, administration of
`
`medication; Veterinary services in Class 044.
`
`xxv. ANCIENT WISDOM. MODERN WELLNESS (Reg. No. 5536760) for
`
`Pet care kits comprising non-medicated shampoo, conditioner, body
`
`spray; pet shampoo and conditioner; deodorants for pets; deodorizers
`
`for pets; essential oils for aromatherapy use; home dental care products for
`
`dogs and cats, namely, toothpaste; non-medicated grooming preparations
`
`for dogs, namely, paw balm, nose balm, toothpastes, soap, shampoo,
`
`conditioner, deodorizers in Class 031.
`
`xxvi.
`
`PET WELLNESS DIRECT (Reg. No.
`
`4875877) for On-line retail store services featuring pet products in Class
`
`035.
`
`c. As these similar marks containing the word “wellness” in other Classes have
`
`simultaneously registered with Opposer’s Marks, Applicant’s Mark is unlikely to
`
`be confused with Opposer’s Marks as its mark is less similar than many of these
`
`third-party marks.
`
`d. Finally, Opposer sells dog food and cat food. Opposer does not sell food for birds
`
`or parrots.
`
`
`
`12
`
`
`
`2)
`
`Second Affirmative Defense: There is no likelihood of dilution by blurring and
`
`tarnishment of Opposer’s Marks.
`
`a. Opposer’s WELLNESS marks are not famous due to the widespread prevalence
`
`of the word “wellness” in both third-party registrations and other
`
`commercial applications.
`
`b. Opposer’s WELLNESS marks have not been proven famous through any
`
`empirical study of secondary meaning.
`
`c. Opposer’s WELLNESS marks are not distinctive due to the descriptiveness of the
`
`word “wellness”.
`
`d. Much of the advertising and promotional materials for Opposer’s Marks are for
`
`the WELLNESS design mark, or its derivations, and not for a singular
`
`WELLNESS word mark, therefore the fame of Opposer’s WELLNESS word
`
`mark alone is not established.
`
`e. As shown above, due to the many third-party registrations of similar and identical
`
`marks bearing “wellness” in the commercial applications of pets, Opposer’s
`
`Marks are unlikely to be diluted by Applicant’s Mark as Applicant’s Mark is no
`
`more similar than the other third-party registrations.
`
`3)
`
`Third Affirmative Defense: Any and all acts alleged to have been committed by
`
`Applicant were performed with lack of knowledge and lack of willful intent.
`
`
`
`
`
`
`
`
`///
`
`
`
`
`13
`
`
`
`July 16, 2022
`
`
`Respectfully submitted,
`
`
`/s/ Rexford Brabson, Esq.
`
`Rexford Brabson
`T-Rex Law, P.C.
`Attorneys for Applicants
`7040 Avenida Encinas #104-333
`Carlsbad, CA 92011
`
`
`
`
`
`14
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
` I
`
` hereby certify that a true copy of the foregoing APPLICANT’S ANSWER is being
`electronically mailed to the following address:
`
`OLIVIA LEVINE
`MCNEES WALLACE & NURICK LLC
`100 PINE STREET, P.O. BOX 1166
`HARRISBURG, PA 17108-1166
`UNITED STATES
`trademarks@mcneeslaw.com, olevine@mcneeslaw.com, lduquette@mcneeslaw.com,
`tgulick@mcneeslaw.com
`
`
`/s/ Rexford Brabson
`Rexford Brabson
`
`
`July 16, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
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