Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1280287
`04/23/2023
`
`ESTTA Tracking number:
`
`Filing date:
`
`Proceeding no.
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`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
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`Filer's email
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`Signature
`
`Date
`
`Attachments
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91280840
`
`Defendant
`Central Coast Agriculture, Inc.
`
`NATHANIEL L. FINTZ
`ZUBER LAWLER LLP
`260 MADISON AVENUE, SUITE 8021
`NEW YORK, NY 10016
`UNITED STATES
`Primary email: trademarkprosecution@zuberlawler.com
`Secondary email(s): tzuber@zuberlawler.com, nfintz@zuberlawler.com,
`lwan@zuberlawler.com, kkawai@zuberlawler.com
`212-899-9830
`Answer and Counterclaim
`
`Nathaniel L. Fintz
`
`trademarkprosecution@zuberlawler.com, nfintz@zuberlawler.com,
`lwan@zuberlawler.com, kkawai@zuberlawler.com
`
`/Nathaniel Fintz/
`
`04/23/2023
`
`Doc 01 -- 2023_04_23 - Opp. No. 91280840 - DEFENDANT`S ANSWER &
`COUNT ERCLAIM.pdf(2106128 bytes )
`Doc 02 -- Exhibits 01-05.pdf(3608296 bytes )
`Doc 03 -- Exhibits 06-10.pdf(5223518 bytes )
`Doc 04 -- Exhibits 11-19.pdf(5970960 bytes )
`Doc 05 -- Exhibits 20-27.pdf(5858141 bytes )
`Doc 06 -- Exhibits 28-35.pdf(3586279 bytes )
`Doc 07 -- Exhibits 36-39.pdf(4381075 bytes )
`Doc 08 -- Exhibits 40-44.pdf(4977327 bytes )
`Doc 09 -- Exhibits 45-49.pdf(4864253 bytes )
`Doc 10 -- Exhibits 50-52.pdf(2686440 bytes )
`Doc 11 -- Exhibit 53 Part 1 of 17.pdf(5801031 bytes )
`Doc 12 -- Exhibit 53 Part 2 of 17.pdf(5203477 bytes )
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`Registration subject to the submission
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`Registration no.
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`Register
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`Registrant
`
`4643806
`
`Principal
`
`ADAPTIVE ENERGY LLC
`1621 CENTRAL AVE
`CHEYENNE, WY 82001
`UNITED STATES
`
`Registration date
`
`11/25/2014
`
`Goods/services subject to the submission
`
`Class 005. First Use: Jun 17, 2012 First Use In Commerce: Jun 17, 2012
`All goods and services in the class are requested, namely: Dietary food supplements; Dietary supple-
`ment for eliminating toxins from the intestinal tract; [ Dietary supplemental drinks; ] Dietary supple-
`ments; Dietary supplements for human consumption; Health food supplements; Herbal supplements;
`Herbal supplements for sleeping problems; Mineral food supplements; Mineral supplements; Nut-
`raceuticals for use as a dietary supplement; Nutritional supplements; Nutritional supplements in the
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`

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`form of [ semisolids and ] liquids
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`Grounds for cancellation
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`Abandonment
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`The mark is or has become generic
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`Mark never used in commerce
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`Trademark Act Section 14(3)
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`Trademark Act Section 14(3)
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`Trademark Act Section 14(6)
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`Violates the provisions of Trademark Act Section
`4
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`Trademark Act Section 4 (collective and certifica-
`tion marks) and Sections 14(3) and (5)
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`

`

`
`
`THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`88982947
`Ser. No.:
`REFINED LIVE RESIN
`Mark:
`Filing Date: Jun. 25, 2019
`
`
`
`
`ADAPTIVE ENERGY LLC
`
` Plaintiff,
`
` v.
`
`CENTRAL COAST AGRICULTURE,
`INC.
`
` Defendant.
`
`
`
`
`
`
`
`
` Opposition No.: 91280840
`
`
`
`
`
`
`
`
`
`
`DEFENDANT’S ANSWER AND COUNTERCLAIM
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`Defendant Central Coast Agriculture, Inc. (“Defendant”), by and through its counsel,
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`hereby answers the First Amended Notice of Opposition (the “Notice of Opposition”) filed on
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`October 24, 2022 by Adaptive Energy LLC (“Plaintiff”) in T.T.A.B. Opposition No. 91280840:
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`1.
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`Defendant lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in Paragraph 1 of the Notice of Opposition, and accordingly, denies
`
`them.
`
`2.
`
`Defendant admits that on December 1, 2013, Nodari Rizun filed U.S. Ser. No.
`
`86132192 for the purported mark LIVE RESIN, covering “Dietary food supplements; Dietary
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`Page 1 of 120
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`supplement for eliminating toxins from the intestinal tract; Dietary supplemental drinks; Dietary
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`supplements; Dietary supplements for human consumption; Health food supplements; Herbal
`
`supplements; Herbal supplements for sleeping problems; Mineral food supplements; Mineral
`
`supplements; Nutraceuticals for use as a dietary supplement; Nutritional supplements; Nutritional
`
`supplements in the form of semisolids and liquids” in International Class 005. Defendant admits
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`that, on November 25, 2014, the USPTO issued a Registration Certificate for U.S. Ser. No.
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`86132192 for the purported mark LIVE RESIN, covering “DIETARY FOOD SUPPLEMENTS;
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`DIETARY SUPPLEMENT FOR ELIMINATING TOXINS FROM THE INTESTINAL TRACT;
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`DIETARY SUPPLEMENTAL DRINKS; DIETARY SUPPLEMENTS; DIETARY
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`SUPPLEMENTS FOR HUMAN CONSUMPTION; HEALTH FOOD SUPPLEMENTS;
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`HERBAL SUPPLEMENTS; HERBAL SUPPLEMENTS FOR SLEEPING PROBLEMS;
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`MINERAL FOOD SUPPLEMENTS; MINERAL SUPPLEMENTS; NUTRACEUTICALS FOR
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`USE AS A DIETARY SUPPLEMENT; NUTRITIONAL SUPPLEMENTS; NUTRITIONAL
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`SUPPLEMENTS IN THE FORM OF SEMISOLIDS AND LIQUIDS” in International Class 005.
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`Defendant admits that, October 8, 2021, an assignment was recorded with the USPTO for U.S.
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`Ser. No. 86132192, where the assignor was Nodari Rizun and the assignee was Adaptive Energy
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`LLC. Defendant admits that U.S. Reg. No. 4643806 currently covers “Dietary food supplements;
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`Dietary supplement for eliminating toxins from the intestinal tract; [ Dietary supplemental drinks;
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`] Dietary supplements; Dietary supplements for human consumption; Health food supplements;
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`Herbal supplements; Herbal supplements for sleeping problems; Mineral food supplements;
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`Mineral supplements; Nutraceuticals for use as a dietary supplement; Nutritional supplements;
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`Nutritional supplements in the form of [ semisolids and ] liquids” in International Class 005.
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`Otherwise, denied.
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`Page 2 of 120
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`3.
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`Defendant states that no response is required for Paragraph 3 of the Notice of
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`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
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`required for Paragraph 3 of the Notice of Opposition, Defendant makes the following statements:
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`Defendant lacks knowledge or information sufficient to form a belief as to the truth of the
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`allegation that Plaintiff has been using the term “LIVE RESIN” continuously in commerce since
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`at least June 2012, and, therefore, Defendant denies the foregoing allegation. Defendant denies
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`that Plaintiff's purported mark LIVE RESIN is a valid trademark. Defendant admits that Plaintiff
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`made various representations to the USPTO in filings necessary to obtain incontestable status for
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`U.S. Reg. No. 4643806. Defendant admits that, in connection with U.S. Reg. No. 4643806, the
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`USPTO issued a notice on May 21, 2020 which featured the following statement: “The declaration
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`of incontestability filed for the above-identified registration meets the requirements of Section 15
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`of the Trademark Act, 15 U.S.C. §1065. The Section 15 declaration is acknowledged.” (Emphasis
`
`omitted). Otherwise, denied.
`
`4.
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`Defendant denies that Plaintiff's purported mark LIVE RESIN is a valid trademark.
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`Defendant admits that Plaintiff is advertising a product. Defendant admits that Plaintiff operates
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`the website www.purblack.com. Otherwise, regarding the remainder of the allegations contained
`
`in Paragraph 4 of the Notice of Opposition, Defendant lacks knowledge or information sufficient
`
`to form a belief as to the truth of those allegations, and accordingly, denies them.
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`5.
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark.
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`Regarding the products that Plaintiff is selling under what Plaintiff claims to be the mark LIVE
`
`RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S. commerce.
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`Defendant admits that the clause “its LIVE RESIN products” (in Paragraph 5 of the Notice of
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`Opposition) demonstrates the genericness of the term “LIVE RESIN” in connection with the goods
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`Page 3 of 120
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`and services provided by Plaintiff. Otherwise, regarding the remainder of the allegations contained
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`in Paragraph 5 of the Notice of Opposition, Defendant lacks knowledge or information sufficient
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`to form a belief as to the truth of those allegations, and accordingly, denies them.
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`6.
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`Defendant states that no response is required for Paragraph 6 of the Notice of
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`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 6 of the Notice of Opposition, Defendant makes the following statements:
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark. Defendant
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`denies that consumers perceive the wording “LIVE RESIN” as an indication of source in
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`connection with Plaintiff’s goods and services. Regarding the products that Plaintiff is selling
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`under what Plaintiff claims to be the mark LIVE RESIN, Defendant denies that Plaintiff is
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`conducting federally-lawful business in U.S. commerce. Otherwise, regarding the remainder of the
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`allegations contained in Paragraph 6 of the Notice of Opposition, Defendant lacks knowledge or
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`information sufficient to form a belief as to the truth of those allegations, and accordingly, denies
`
`them.
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`7.
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark.
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`Otherwise, regarding the remainder of the allegations contained in Paragraph 7 of the Notice of
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`Opposition, Defendant lacks knowledge or information sufficient to form a belief as to the truth
`
`of those allegations, and accordingly, denies them.
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`8.
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`Defendant states that no response is required for Paragraph 8 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 8 of the Notice of Opposition, Defendant makes the following statements:
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark. Defendant
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`admits that Plaintiff made various representations to the USPTO in filings necessary to obtain
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`Page 4 of 120
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`incontestable status for U.S. Reg. No. 4643806. Defendant admits that, in connection with U.S.
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`Reg. No. 4643806, the USPTO issued a notice on May 21, 2020 which featured the following
`
`statement: “The declaration of incontestability filed for the above-identified registration meets the
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`requirements of Section 15 of the Trademark Act, 15 U.S.C. §1065. The Section 15 declaration is
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`acknowledged.” (Emphasis omitted). Otherwise, denied.
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`9.
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`Defendant admits that the clause “Opposer’s LIVE RESIN product packaging” (in
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`Paragraph 9 of the Notice of Opposition) demonstrates the genericness of the term “LIVE RESIN”
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`in connection with the goods and services provided by Plaintiff. Otherwise, regarding the
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`remainder of the allegations contained in Paragraph 9 of the Notice of Opposition, Defendant lacks
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`knowledge or information sufficient to form a belief as to the truth of those allegations, and
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`accordingly, denies them.
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`10.
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`Defendant admits the allegation contained in Paragraph 10 of the Notice of
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`Opposition.
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`11.
`
`Defendant admits that Defendant is the applicant of U.S. Ser. Nos. 88984133,
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`88984131, 88978338, 88978337, 88983652, 88984810, 88984132, 88981164, 88981163,
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`88978414, 88983042, 88983040, 88980419, 88978415, 88978409, 88984812, 88984811,
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`88488738, 88983043, 88983041, 88982948, 88984086, 88488728, 88978431, 88983650,
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`88982947, 88983651, 88981186, 88978433, 88978335, 88983649, 88981827, 88981826,
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`88978336, 88981189, 88981188, 88978413, 88488733, 88984134, 88980421, 88980420,
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`88984061, 88981190, 88981187, and 88978432, among other applications. Defendant admits that
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`U.S. Ser. Nos. 88984133, 88984131, 88978338, 88978337, 88983652, 88984810, 88984132,
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`88981164, 88981163, 88978414, 88983042, 88983040, 88980419, 88978415, 88978409,
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`88984812, 88984811, 88488738, 88983043, 88983041, 88982948, 88984086, 88488728,
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`
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`Page 5 of 120
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`88978431, 88983650, 88982947, 88983651, 88981186, 88978433, 88978335, 88983649,
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`88981827, 88981826, 88978336, 88981189, 88981188, 88978413, 88488733, 88984134,
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`88980421, 88980420, 88984061, 88981190, 88981187, and 88978432 have an application filing
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`date of June 25, 2019. Defendant admits that U.S. Ser. No. 88982947 is for the mark REFINED
`
`LIVE RESIN. Otherwise, denied.
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`12.
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`Defendant admits that the identification of goods and services for U.S. Ser. No.
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`88982947 reads as follows: “Dried herbs” in International Class 030. Otherwise, denied.
`
`13.
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark.
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`Defendant admits that Plaintiff’s purported mark in U.S. Reg. No. 4643806 is comprised of the
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`wording “LIVE RESIN.” Defendant admits that U.S. Reg. No. 4643806 has an identification of
`
`goods which reads as follows: “Dietary food supplements; Dietary supplement for eliminating
`
`toxins from the intestinal tract; [ Dietary supplemental drinks; ] Dietary supplements; Dietary
`
`supplements for human consumption; Health food supplements; Herbal supplements; Herbal
`
`supplements for sleeping problems; Mineral food supplements; Mineral supplements;
`
`Nutraceuticals for use as a dietary supplement; Nutritional supplements; Nutritional supplements
`
`in the form of [ semisolids and ] liquids” in International Class 005. Defendant admits that the
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`mark in U.S. Ser. No. 88982947 is comprised of the wording “REFINED LIVE RESIN.”
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`Defendant admits that U.S. Ser. No. 88982947 has an identification of goods which reads as
`
`follows: “Dried herbs” in International Class 030. Defendant admits that, in U.S. Ser. No.
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`88982947, the first element of the mark is the wording “REFINED.” Defendant admits that, in
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`U.S. Reg. No. 4643806, the wording “REFINED” does not appear anywhere within what Plaintiff
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`claims to be the mark LIVE RESIN. Defendant denies that the purported mark in U.S. Reg. No.
`
`4643806 bears a striking resemblance to the mark in U.S. Ser. No. 88982947. Otherwise, denied.
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`Page 6 of 120
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`14.
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`Defendant states that no response is required for Paragraph 14 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 14 of the Notice of Opposition, Defendant makes the following statements:
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark. Defendant
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`denies that the wording “LIVE RESIN” constitutes a mark owned by Plaintiff. Defendant admits
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`that Plaintiff uses the wording “LIVE RESIN” in connection with Plaintiff’s live resin products.
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`Defendant denies that Defendant is arguing that Defendant owns a trademark which is comprised
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`solely of the two-word phrase “LIVE RESIN.” Defendant denies that the wording “REFINED” is
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`merely descriptive. Defendant denies the following statement: “Both parties use the mark LIVE
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`RESIN in connection with products, i.e. resins.” Defendant denies the following statement:
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`“Applicant’s Mark merely adds the descriptive word REFINED before Opposer’s mark.”
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`Defendant admits
`
`that
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`the wording “LIVE RESIN” can be found on
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`the website
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`www.rawgarden.farm. Defendant admits that, on the website www.rawgarden.farm, Defendant is
`
`using the wording “REFINED LIVE RESIN” as an indication of source in connection with goods
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`offered by Defendant. To the extent Paragraph 14 of the Notice of Opposition sought to allege that
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`the set of goods and services currently offered by Defendant under the mark REFINED LIVE
`
`RESIN is absolutely identical to the set of goods to be covered by U.S. Ser. No. 88982947,
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`Defendant denies that allegation. Otherwise, denied.
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`15.
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`Regarding the first sentence of Paragraph 15 of the Notice of Opposition, Defendant
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`states that the Trademark Trial and Appeal Board has stricken the first sentence of Paragraph 15
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`of the Notice of Opposition. See 10 TTABVUE 4-5. Regarding the remainder of Paragraph 15 of
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`the Notice of Opposition, Defendant makes the following statements: Defendant admits that, on
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`the website www.rawgarden.farm, Defendant is using the wording “REFINED LIVE RESIN” as
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`Page 7 of 120
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`an indication of source in connection with goods offered by Defendant, including certain goods
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`which contain derivatives of the plant Cannabis sativa L. To the extent the second and third
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`sentences of Paragraph 15 of the Notice of Opposition sought to allege that the set of goods and
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`services currently offered by Defendant under the mark REFINED LIVE RESIN is absolutely
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`identical to the set of goods to be covered by U.S. Ser. No. 88982947, Defendant denies that
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`allegation. Defendant admits that when an internet user visits www.rawgarden.farm, a notice
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`appears which features the question “Are you 21+?” and which also features the word “Yes!” and
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`the word “No.” Defendant admits that if the internet user clicks on the word “No” then the internet
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`user is redirected to www.google.com. Defendant admits that if the internet user clicks on the word
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`“Yes!” then the internet user is not redirected to www.google.com. Otherwise, denied.
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`16.
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`Defendant states that no response is required for Paragraph 16 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 16 of the Notice of Opposition, Defendant makes the following statements:
`
`Regarding the products that Plaintiff is selling under what Plaintiff claims to be the mark LIVE
`
`RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S. commerce.
`
`Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection with
`
`Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
`
`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
`
`Plaintiff. Defendant admits that Plaintiff uses the wording “LIVE RESIN” in connection with
`
`Plaintiff’s live resin products. Defendant admits that, on the website www.rawgarden.farm,
`
`Defendant is using the wording “REFINED LIVE RESIN” as an indication of source in connection
`
`with goods offered by Defendant; comparing the aforesaid wording “REFINED LIVE RESIN”
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`with the wording “LIVE RESIN” which Plaintiff uses in connection with Plaintiff’s live resin
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`Page 8 of 120
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`products, Defendant denies that their respective usages are similar. Defendant admits that the
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`wording “LIVE RESIN” can be found in Exhibit 3 to the Notice of Opposition. Defendant denies
`
`that Defendant is arguing that Defendant owns a trademark which is comprised solely of the two-
`
`word phrase “LIVE RESIN.” Defendant denies that Defendant’s usage of the wording “LIVE
`
`RESIN” is confusingly similar to Plaintiff’s usage of the wording “LIVE RESIN.” Defendant
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`denies that Defendant’s usage of the wording “REFINED LIVE RESIN” is confusingly similar to
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`Defendant’s usage of the wording “LIVE RESIN.” To the extent Paragraph 16 of the Notice of
`
`Opposition sought to allege that the set of goods and services currently offered by Defendant under
`
`the mark REFINED LIVE RESIN is absolutely identical to the set of goods to be covered by U.S.
`
`Ser. No. 88982947, Defendant denies that allegation. Defendant denies that Defendant is offering
`
`any goods which are related to any goods offered by Plaintiff. Defendant denies that the
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`identification of goods of U.S. Ser. No. 88982947 covers goods which are related to goods offered
`
`by Plaintiff. Defendant admits that Plaintiff has no valid claim of likelihood of confusion against
`
`Defendant. Defendant admits that Plaintiff’s language “you see that … the brands are different”
`
`(in Paragraph 16 of the Notice of Opposition) is consistent with the fact that Plaintiff has no valid
`
`claim of likelihood of confusion against Defendant. Otherwise, denied.
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`17.
`
`Defendant states that no response is required for Paragraph 17 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 17 of the Notice of Opposition, Defendant makes the following statements:
`
`Defendant denies the allegations contained in Paragraph 17 of the Notice of Opposition.
`
`18.
`
`Defendant states that no response is required for Paragraph 18 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 18 of the Notice of Opposition, Defendant makes the following statements:
`
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`Page 9 of 120
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`Defendant denies that Plaintiff’s goods and Defendant’s goods are likely to reach the same
`
`consumers. Regarding the products that Plaintiff is selling under what Plaintiff claims to be the
`
`mark LIVE RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S.
`
`commerce. Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection
`
`with Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
`
`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
`
`Plaintiff. Defendant admits that Plaintiff uses the wording “LIVE RESIN” in connection with
`
`Plaintiff’s live resin products. Defendant admits that Plaintiff uses the wording “LIVE RESIN” in
`
`connection with advertising Plaintiff’s live resin products on the internet. Defendant denies that
`
`Defendant is arguing that Defendant owns a trademark which is comprised solely of the two-word
`
`phrase “LIVE RESIN.” Defendant denies the following statement: “both parties advertise their
`
`goods branded as LIVE RESIN.” Defendant admits that the wording “LIVE RESIN” can be found
`
`on the website www.rawgarden.farm. Defendant admits that, on the internet, Defendant is using
`
`the wording “REFINED LIVE RESIN” as an indication of source in connection with goods offered
`
`by Defendant. To the extent Paragraph 18 of the Notice of Opposition sought to allege that the set
`
`of goods and services currently offered by Defendant under the mark REFINED LIVE RESIN is
`
`absolutely identical to the set of goods to be covered by U.S. Ser. No. 88982947, Defendant denies
`
`that allegation. Otherwise, denied.
`
`19.
`
`Defendant states that no response is required for Paragraph 19 of the Notice of
`
`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
`
`required for Paragraph 19 of the Notice of Opposition, Defendant makes the following statements:
`
`Defendant admits that Defendant’s attainment of registration for U.S. Ser. No. 88982947 will
`
`enshrine Defendant’s right to use the trademark REFINED LIVE RESIN in connection with “dried
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`Page 10 of 120
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`herbs” in International Class 030. Defendant denies that Defendant’s attainment of registration for
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`U.S. Ser. No. 88982947 will inflict any damage or injury upon Plaintiff. Regarding the products
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`that Plaintiff is selling under what Plaintiff claims to be the mark LIVE RESIN, Defendant denies
`
`that Plaintiff is conducting federally-lawful business in U.S. commerce. Defendant admits that
`
`Plaintiff’s purported mark LIVE RESIN is generic in connection with Plaintiff’s goods. Defendant
`
`denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark. Defendant denies that
`
`the wording “LIVE RESIN” constitutes a mark owned by Plaintiff. Otherwise, denied.
`
`20.
`
`Defendant states that no response is required for Paragraph 20 of the Notice of
`
`Opposition because it makes no allegations. To the extent a response is required for Paragraph 20
`
`of the Notice of Opposition, Defendant makes the following statements: Defendant denies the
`
`allegations contained in Paragraph 20 of the Notice of Opposition. Defendant restates and
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`incorporates by reference Defendant’s responses to Paragraphs 1 to 20 above as if fully set forth
`
`herein.
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`21.
`
`Regarding Plaintiff’s allegation concerning the timing of Plaintiff’s use of what
`
`Plaintiff claims to be its mark LIVE RESIN, Defendant states that Defendant lacks knowledge or
`
`information sufficient to form a belief as to the timing of Plaintiff’s use of the wording “LIVE
`
`RESIN.” Regarding Plaintiff’s allegation concerning the timing of Plaintiff’s use of what Plaintiff
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`claims to be its mark LIVE RESIN, Defendant states that Plaintiff has never made any federally-
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`lawful use of what Plaintiff claims to be its mark LIVE RESIN. Regarding Plaintiff’s allegation
`
`concerning the timing of Plaintiff’s use of what Plaintiff claims to be its mark LIVE RESIN,
`
`Defendant states that what Plaintiff claims to be its mark LIVE RESIN is actually generic in
`
`connection with Plaintiff’s goods. Regarding Plaintiff’s allegation concerning the timing of
`
`Plaintiff’s use of what Plaintiff claims to be its mark LIVE RESIN, Defendant states that Plaintiff
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`Page 11 of 120
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`has never possessed trademark rights in what Plaintiff claims to be its mark LIVE RESIN.
`
`Regarding Plaintiff’s allegation concerning the timing of Plaintiff’s use of what Plaintiff claims to
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`be its mark LIVE RESIN, Defendant denies that allegation. Defendant admits that U.S. Reg. No.
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`4643806 received a Registration Certificate from the USPTO on November 25, 2014. Defendant
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`admits that the filing date of U.S. Ser. No. 88982947 is June 25, 2019. Defendant admits that
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`November 25, 2014 is earlier than June 25, 2019. Otherwise, denied.
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`22.
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`Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid trademark.
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`Otherwise, no response is necessary to the allegations of Paragraph 22 of the Notice of Opposition,
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`as those allegations call for a response that invades the attorney-client privilege.
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`23.
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`Defendant admits that Paragraph 23 of Plaintiff’s Notice of Opposition reads as
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`follows: “On information and belief, the goods and services for which Applicant seeks registration
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`of its mark and the goods and services associated with Opposer’s Mark are of similar types, offered
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`or may be offered through the same, substantially the same, and/or related channels of trade; to the
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`same, substantially the same, and/or related classes of purchasers; and or may be advertised,
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`marketed and promoted through the same media channels.” No response is necessary to Paragraph
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`23 of the Notice of Opposition due to the elaborate compound form of the allegations in Paragraph
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`23 of the Notice of Opposition, which severely impedes any effort to parse through such allegations
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`and issue admissions or denials to each and every one. To the extent a response is required for
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`Paragraph 23 of the Notice of Opposition, Defendant makes the following statements: Regarding
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`the products that Plaintiff is selling under what Plaintiff claims to be the mark LIVE RESIN,
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`Defendant denies that Plaintiff is conducting federally-lawful business in U.S. commerce.
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`Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection with
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`Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
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`Page 12 of 120
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`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
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`Plaintiff. Defendant denies that Plaintiff’s goods and Defendant’s goods are likely to reach the
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`same consumers. Otherwise, denied.
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`24.
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`Defendant admits that Paragraph 24 of Plaintiff’s Notice of Opposition reads as
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`follows: “On information and belief, Applicant’s Mark so closely resembles Opposer’s LIVE
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`RESIN Mark that potential purchasers of the goods offered under Applicant’s Mark would likely
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`believe that Opposer is the source of such goods, or that Opposer has authorized, sponsored,
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`approved of, or in some other manner associated itself with Applicant’s goods, thereby creating a
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`likelihood of confusion, deception or mistake, all to the damage of Opposer.” Defendant states that
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`no response is necessary to Paragraph 24 of the Notice of Opposition due to the elaborate
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`compound form of the allegations in Paragraph 24 of the Notice of Opposition, which severely
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`impedes any effort to parse through such allegations and issue admissions or denials to each and
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`every one. Additionally, Defendant states that no response is required for Paragraph 24 of the
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`Notice of Opposition because it contains legal arguments or legal conclusions. To the extent a
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`response is required for Paragraph 24 of the Notice of Opposition, Defendant makes the following
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`statements: Regarding the products that Plaintiff is selling under what Plaintiff claims to be the
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`mark LIVE RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S.
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`commerce. Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection
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`with Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
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`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
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`Plaintiff. As between Defendant’s mark REFINED LIVE RESIN and what Plaintiff claims to be
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`Plaintiff’s mark LIVE RESIN, Defendant denies that there is confusing similarity. As between
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`Defendant’s mark REFINED LIVE RESIN and what Plaintiff claims to be Plaintiff’s mark LIVE
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`Page 13 of 120
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`RESIN, Defendant denies that there is a likelihood of confusion. Otherwise, denied.
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`25.
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`Defendant states that no response is required for Paragraph 25 of the Notice of
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`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
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`required for Paragraph 25 of the Notice of Opposition, Defendant makes the following statements:
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`Regarding the products that Plaintiff is selling under what Plaintiff claims to be the mark LIVE
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`RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S. commerce.
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`Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection with
`
`Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
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`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
`
`Plaintiff. As between Defendant’s mark REFINED LIVE RESIN and what Plaintiff claims to be
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`Plaintiff’s mark LIVE RESIN, Defendant denies that there is confusing similarity. As between
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`Defendant’s mark REFINED LIVE RESIN and what Plaintiff claims to be Plaintiff’s mark LIVE
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`RESIN, Defendant denies that there is a likelihood of confusion. Otherwise, denied.
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`26.
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`Defendant states that no response is required for Paragraph 26 of the Notice of
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`Opposition because it contains legal arguments or legal conclusions. To the extent a response is
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`required for Paragraph 26 of the Notice of Opposition, Defendant makes the following statements:
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`Regarding the products that Plaintiff is selling under what Plaintiff claims to be the mark LIVE
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`RESIN, Defendant denies that Plaintiff is conducting federally-lawful business in U.S. commerce.
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`Defendant admits that Plaintiff’s purported mark LIVE RESIN is generic in connection with
`
`Plaintiff’s goods. Defendant denies that Plaintiff’s purported mark LIVE RESIN is a valid
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`trademark. Defendant denies that the wording “LIVE RESIN” constitutes a mark owned by
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`Plaintiff. As between Defendant’s mark REFINED LIVE RESIN and what Plaintiff claims to be
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`Plaintiff’s mark LIVE RESIN, Defendant denies that there is a likelihood of confusion. Otherwise,
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`Page 14 of 120
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`denied.
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`27.
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`Defendant states that no response is required for Paragraph 27 of the Notice of
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`Opposition because it makes no allegations. To the extent a response is required for Paragraph 27
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`of the Notice of Opposition, Defendant makes the following statements: Defendant denies the
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`allegations contained in Paragraph 27 of the Notice of Opposition. Defendant restates and
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`incorporates by reference Defendant’s responses to Paragraphs 1 to 27 above as if fully set forth
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`herein.
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`28.
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`Defendant admits that U.S. Ser. No. 88982947 was filed with a Section 1(b) filing
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`basis. Defendant states that no response is required for the second and third sentences of Paragraph
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`28 of the Notice of Opposition because they contain legal arguments or legal conclusions. To the
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`extent a response is required for the second and third sentences of Paragraph 28 of the Notice of
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`Opposition, Defendant denies the allegations contained in the second and third sentences of
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`Paragraph 28 of the Notice of Opposition. Otherwise, denied.
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`29.
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`Defendant admits that, when filed on June 25, 2019, the application for U.S. Ser.
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`No. 88982947 contained the following statement encompassing “Dried herbs”: “The applicant has
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`a bona fide inte