ESTTA Tracking number:
`
`Filing date:
`
`ESTTA1337859
`02/02/2024
`
`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
`
`PROXIMO SPIRITS, INC.
`
`Granted to date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`02/04/2024
`
`3 SECOND ST.
`SUITE 1101
`JERSEY CITY, NJ 07302
`UNITED STATES
`
`ERICA HALSTEAD
`WOMBLE BOND DICKINSON (US) LLP
`950 THIRD AVE.
`SUITE 2400
`NEW YORK, NY 10022
`UNITED STATES
`Primary email: erica.halstead@wbd-us.com
`Secondary email(s): tmdocketing@wbd-us.com, docketingnyc@wbd-us.com
`3322588400
`
`Docket no.
`
`115721.13969
`
`Applicant information
`
`Application no.
`
`97450435
`
`Opposition filing
`date
`
`Applicant
`
`02/02/2024
`
`M2D2 Associates Inc.
`25 PARCE AVE, SUITE 150
`FAIRPORT, NY 14450
`UNITED STATES
`
`Goods/services affected by opposition
`
`Publication date
`
`08/08/2023
`
`Opposition period
`ends
`
`02/04/2024
`
`Class 043. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Restaurant and bar services
`
`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.
`
`4664924
`
`Register
`
`Principal
`
`Application date
`
`10/31/2013
`
`

`

`Registration date
`
`12/30/2014
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TINCUP
`
`NONE
`
`Class 033. First use: First Use: Jun 27, 2013 First Use In Commerce: Jun 27,
`2013
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`no.
`
`4795904
`
`Register
`
`Principal
`
`Registration date
`
`08/18/2015
`
`Application date
`
`10/30/2013
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TIN CUP, TINCUP TCCO.
`
`The mark consists of three-dimensional product packaging in the form of a
`hexagon bottle. The wording "TIN CUP" is displayed on the shoulder of the
`bottle with comma. Below the wording "TIN CUP" is a design consisting of a
`single line circle with two ice axes presented crossed. Within the design, in the
`space created by the crossed ice axes towards the top of the circle is the letter
`"T", towards the bottom of the circle is the letter "C", towards the left of the circle
`is the letter "C", and towards the right of the circle are the letter "O" and a dot.
`Below the design is the wording "TIN CUP" displayed vertically on the front of
`the bottle. The broken lines outlining the cap of the bottle are intended to show
`the position of the mark on the goods and are not part of the mark.
`
`Class 033. First use: First Use: Jun 27, 2013 First Use In Commerce: Jun 27,
`2013
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`no.
`
`4650544
`
`Register
`
`Principal
`
`Registration date
`
`12/02/2014
`
`Application date
`
`09/20/2013
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TIN CUP, COLORADO. AMERICAN WHISKEY
`
`The mark consists of the words "TIN CUP" with a comma all in white with black
`trim, the word "COLORADO" in special letters with a period all in white with
`black trim below, and the words "AMERICAN WHISKEY" in white with black trim
`above, all on teal blue semi-circle label.
`
`Class 033. First use: First Use: Jun 27, 2001 First Use In Commerce: Jun 27,
`2013
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`no.
`
`4590411
`
`Register
`
`Principal
`
`Registration date
`
`08/19/2014
`
`Application date
`
`09/19/2013
`
`Foreign priority
`date
`
`NONE
`
`

`

`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TCCO
`
`The mark consists of a single line circle with two pickaxes presented crossed. In
`the space created by the crossed pickaxes towards the top of the circle is the
`letter "T", towards the bottom of the circle is the letter "C", towards the left of the
`circle is the letter "C", and towards the right of the circle are the letter "O" and a
`dot.
`
`Class 033. First use: First Use: Jun 27, 2013 First Use In Commerce: Jun 27,
`2013
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`no.
`
`5581274
`
`Register
`
`Principal
`
`Registration date
`
`10/09/2018
`
`Application date
`
`06/03/2016
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TINCUP MOUNTAIN WHISKEY
`
`The mark consists of the words "TIN CUP MOUNTAIN WHISKEY" in stylized
`form.
`
`Class 033. First use: First Use: Jun 2015 First Use In Commerce: Jun 2015
`Whiskey
`
`U.S. registration
`no.
`
`4488773
`
`Register
`
`Principal
`
`Registration date
`
`02/25/2014
`
`Application date
`
`10/25/2010
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TIN CUP
`
`NONE
`
`Class 033. First use: First Use: Jun 27, 2013 First Use In Commerce: Jun 27,
`2013
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`no.
`
`7203090
`
`Register
`
`Principal
`
`Registration date
`
`10/24/2023
`
`Application date
`
`02/16/2022
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TINCUP FOURTEENER
`
`NONE
`
`Class 033. First use: First Use: Nov 28, 2022 First Use In Commerce: Nov 28,
`2022
`Alcoholic beverages, namely, whiskey
`
`U.S. registration
`
`7203089
`
`Application date
`
`02/16/2022
`
`

`

`no.
`
`Register
`
`Principal
`
`Registration date
`
`10/24/2023
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`TINCUP 14'ER
`
`NONE
`
`Class 033. First use: First Use: Nov 28, 2022 First Use In Commerce: Nov 28,
`2022
`Alcoholic beverages, namely, whiskey
`
`Attachments
`
`TINCUP v TINCUP SOCIAL .pdf(183130 bytes )
`
`Signature
`
`/erh/
`
`Name
`
`Date
`
`ERICA HALSTEAD
`
`02/02/2024
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`In the Matter of Ser. No. 97450435
`
`
`
`Mark:
`
`---------------------------------------------------------------
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`PROXIMO SPIRITS, INC.,
`
`
`:
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`
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`:
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`Opposer,
`
`:
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`:
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`v.
`
`
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`:
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`:
`M2D2 ASSOCIATES INC.,
`
`
`:
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`:
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`
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`Applicant
`
`:
`---------------------------------------------------------------
`
`
`Opposition No.
`
`
`
`
`
`
`
`
`Proximo Spirits, Inc. (“Opposer”), a Delaware corporation with an address at 3 Second
`
`NOTICE OF OPPOSITION
`
`Street, Suite 1101, Jersey City, New Jersey 07302, hereby files this Notice of Opposition against
`
`U.S. Ser. No. 97450435 for the mark
`
` owned by M2D2 Associates Inc., a
`
`New York corporation with an address at 25 Parce Ave, Suite 150, Fairport, New York 14450
`
`(“Applicant”). The grounds for the opposition are as follows:
`
`1.
`
`On June 9, 2022, Applicant filed an application to register
`
`for
`
`“restaurant and bar services” in Class 43 (hereinafter “Applicant’s Mark”). According to the
`
`

`

`records of the USPTO, the application was filed based on Applicant’s intent to use the mark in
`
`commerce.
`
`2.
`
`Opposer is the owner of the rights and goodwill to the marks TIN CUP and TINCUP
`
`in connection with goods in Class 33. In addition to its strong common law rights, Opposer is the
`
`owner of the following federal trademark registrations:
`
`
`MARK
`
`TINCUP
`Incontestable
`
`REG. NO./SER. NO. CLASS
`
`Reg. No. 4664924
`
`Cl. 33
`
`Reg. No. 4795904
`
`Cl. 33
`
`Incontestable
`
`
`
`Reg. No. 4650544
`
`Cl. 33
`
`Reg. No. 4590411
`
`Cl. 33
`
`Incontestable
`
`
`
`
`
`
`Incontestable
`
`
`TIN CUP
`
`Reg. No. 4488773
`
`Cl. 33
`
`
`
`Reg. No. 5581274
`
`Cl. 33
`
`2
`
`

`

`TINCUP FOURTEENER
`TINCUP 14’ER
`
`Reg. No. 7203090
`Reg. No. 7203089
`
`Cl. 33
`Cl. 33
`
` (hereinafter collectively referred to as “Opposer’s Marks”).
`
`3.
`
`Opposer has used Opposer’s Marks in US commerce since at least as early as 2013 and
`
`such use continues today. Accordingly, Opposer has rights in and to the TINCUP and TIN CUP
`
`marks which are senior to any actual or constructive use rights which may be claimed by Applicant.
`
`4.
`
`As a result of Opposer’s extensive marketing, promotion, advertising and sales activity,
`
`Opposer’s Marks have attained considerable goodwill and are valuable assets of Opposer.
`
`Consumers have come to know and recognize Opposer’s Marks as exclusively identifying goods
`
`which originate with, are authorized by, or otherwise identify, Opposer.
`
`5.
`
`The dominant portion of Applicant’s Mark, namely the term TIN CUP, is identical to
`
`Opposer’s registered marks TINCUP and TIN CUP.
`
`6.
`
`Applicant’s Mark is displayed in a stylized font that is nearly identical to the stylized
`
`font used in Opposer’s Marks.
`
`7.
`
`Applicant’s Mark contains the following design element
`
`which is
`
`highly similar to Opposer’s pickaxe design included in its registered mark
`
`.
`
`8.
`
`Accordingly, Applicant’s Mark is confusingly similar to Opposer’s Marks as to
`
`appearance, sound, connotation, and commercial impression.
`
`3
`
`

`

`9.
`
`Applicant’s services, namely, restaurant and bar services, are commercially related to
`
`Opposer’s goods, namely, alcoholic beverages, thus source confusion is likely.
`
`10.
`
`Due to the Parties’ commercially related goods and services, Applicant’s targeted
`
`consumers will overlap with Opposer’s targeted consumers, thus source confusion is likely.
`
`11.
`
`The use and registration of Applicant’s Mark is likely to deceive and to cause mistake
`
`or confusion among members of the purchasing public as to the source of Applicant’s goods within
`
`the meaning of 15 U.S.C. §1052(d).
`
`
`
`WHEREFORE, Opposer believes that it has a real interest in this proceeding and will be
`
`irreparably damaged by the registration of the Applicant's Mark, and respectfully requests that the
`
`Board sustain this Opposition and refuse registration of the opposed application.
`
`
`
`
`
`Dated: February 2, 2024
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`Respectfully submitted,
`
`
`
`Erica Halstead
`WOMBLE BOND DICKINSON (US) LLP
`950 Third Avenue, Suite 2400
`New York, New York 10022
`Telephone: (332) 258-8400
`Email: Erica.Halstead@wbd-us.com
`TMDocketing@wbd-us.com
`
`Attorneys for Opposer Proximo Spirits, Inc.
`
`4
`
`