throbber
ESTTA Tracking number:
`
`Filing date:
`
`ESTTA1341616
`02/21/2024
`
`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
`
`ACMPC California 7, LLC
`
`Granted to date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`03/13/2024
`
`1331 NW LOVEJOY STREET, SUITE 720
`PORTLAND, OR 97209
`UNITED STATES
`
`STEVEN E. KLEIN
`DAVIS WRIGHT TREMAINE LLP
`1300 SW FIFTH AVENUE, SUITE 2400
`PORTLAND, OR 97201
`UNITED STATES
`Primary email: stevenklein@dwt.com
`Secondary email(s): sheilafoxmorrison@dwt.com, pdxtmenforcement@dwt.com,
`pdxtrademarks@dwt.com
`503.241.2300
`
`Docket no.
`
`Applicant information
`
`Application no.
`
`97908825
`
`Opposition filing
`date
`
`Applicant
`
`02/21/2024
`
`Publication date
`
`11/14/2023
`
`Opposition period
`ends
`
`03/13/2024
`
`FRESH FARMS E-LIQUID, LLC
`151 KALMUS DRIVE, L3
`COSTA MESA, CA 92626
`UNITED STATES
`
`Goods/services affected by opposition
`
`Class 030. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Candy; Gummy candies
`
`Applicant information
`
`Application no.
`
`97908851
`
`Publication date
`
`11/14/2023
`
`Opposition filing
`date
`
`Applicant
`
`02/21/2024
`
`Opposition period
`ends
`
`FRESH FARMS E-LIQUID, LLC
`151 KALMUS DRIVE, L3
`COSTA MESA, CA 92626
`UNITED STATES
`
`

`

`Goods/services affected by opposition
`
`Class 032. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Non-alcoholic drinks, namely, energy shots;
`Soft drinks; Sports drinks
`
`Grounds for opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`No bona fide intent to use mark in commerce for
`identified goods or services
`
`Trademark Act Section 1(b), 44(e) or 66(a)
`
`Other
`
`Illegal Use
`
`Marks cited by opposer as basis for opposition
`
`U.S. registration
`no.
`
`3975937
`
`Register
`
`Principal
`
`Registration date
`
`06/07/2011
`
`Application date
`
`06/25/2010
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`U.S. application
`no.
`
`SUMO CITRUS
`
`NONE
`
`Class 031. First use: First Use: Feb 11, 2011 First Use In Commerce: Feb 17,
`2011
`Fresh citrus fruits
`
`97393613
`
`Application date
`
`05/03/2022
`
`Registration date
`
`NONE
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`SUMO CITRUS
`
`NONE
`
`Class 001. First use: First Use: None First Use In Commerce: None
`Fruit extracts for use in the manufacture of food, cosmetics, or cleaning
`products; active fruit constituent ingredients used in the manufacture of food,
`cosmetics, beauty products or cleaning products; fruit extracts for use in the
`manufacture of other goods
`Class 003. First use: First Use: None First Use In Commerce: None
`Essential oils; nutritional oils for cosmetic purposes; cosmetic oils; food flavoring
`prepared from essential oils; aromatic oils; cleaning preparations; cleaning pre-
`parations for personal use; beauty preparations; active fruit constituent ingredi-
`ents for beauty preparations; beauty care cosmetics; non-medicated skin care
`preparations
`Class 004. First use: First Use: None First Use In Commerce: None
`Scented candles; candles
`Class 005. First use: First Use: None First Use In Commerce: None
`Dietary supplements; vitamin and mineral supplements; multi-vitamin prepara-
`tions; powdered nutritional supplement drink mix; powered nutritional supple-
`
`

`

`ments
`Class 025. First use: First Use: None First Use In Commerce: None
`Clothing and apparel
`Class 029. First use: First Use: None First Use In Commerce: None
`Dairy-based food products; cheese; yogurt; yogurt drinks; non-dairy yogurt;
`dairy-based beverages; fruit concentrates, purees, syrups and powders used as
`ingredients for foods; freeze dried fruit; dried fruit; frozen fruits; non-alcoholic
`fruit extracts for use as ingredients of nutritional supplements and vitamins;
`jams, jellies and marmalades; edible oils
`Class 030. First use: First Use: None First Use In Commerce: None
`Tea; kombucha tea; tea-based beverages; ice cream; frozen confections; candy;
`concentrates, syrups, powders used in the preparation of confections; condi-
`ments; edible oils; salad dressing; salsa; bakery goods; mixes for bakery goods;
`frozen yogurt; fruit syrups used as ingredients for foods
`Class 031. First use: First Use: None First Use In Commerce: None
`Live citrus plants
`Class 032. First use: First Use: None First Use In Commerce: None
`Beer; drinking water; sparkling water; soft drinks; fruit juice; concentrates, syr-
`ups, and powders for making soft drinks; preparations for making soft drinks;
`non-alcoholic essences for making soft drinks, not in the nature of essential oils;
`non-alcoholic cider; non-alcoholic fruit extracts for use in the preparation of
`beverages
`Class 033. First use: First Use: None First Use In Commerce: None
`Alcoholic beverages except beer
`
`Attachments
`
`Notice of Opposition - HALF BAKD SUMO.pdf(137383 bytes )
`A - 3975937.pdf(114871 bytes )
`B - 97393613.pdf(105565 bytes )
`C - 2024-02-21 - half-bakd.com_pages_about-us.pdf(986384 bytes )
`D longer.pdf(3347086 bytes )
`E - WildWatermelon-COAs.pdf(314872 bytes )
`F-monster-mango-sumo-COA.pdf(316511 bytes )
`G-2024-02-21 - half-bakd.com_blogs_learn_guide-delta-cannabinoid-prod
`ucts.pdf(576258 bytes )
`
`Signature
`
`/s Steven E. Klein/
`
`Name
`
`Date
`
`STEVEN E. KLEIN
`
`02/21/2024
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Trademark Application Serial Nos. 97/908,825 and 97/908,851
`For the marks: HALF BAK’D SUMO
`Published: November 14, 2023
`
`ACMPC CALIFORNIA 7, LLC, a California
`limited liability company,
`
`Opposition No.
`
`Opposer,
`
`v.
`
`FRESH FARMS E-LIQUID, LLC, a California
`limited liability company,
`
`Applicant.
`
`NOTICE OF OPPOSITION
`
`ACMPC California 7, LLC, a California limited liability company with a place of
`
`business of 1331 NW Lovejoy Street, Suite 720, Portland, Oregon 97209 (hereinafter
`
`“Opposer”), believes that it will be damaged by registration of the marks HALF BAK’D SUMO
`
`shown in Application Serial Nos. 97/908,825 and 97/908,851, and hereby oppose the registrations
`
`thereof.
`
`Having requested and obtained an extension of time to oppose Applicant’s Applications
`
`to and including March 13, 2024, see ESTTA Tracking Nos. ESTTA1328505; ESTTA1333826;
`
`ESTTA1328509; and ESTTA1333829, Opposer now opposes registration of Applicant’s HALF
`
`BAK’D SUMO marks shown in shown in Application Serial Nos. 97/908,825 and 97/908,851
`
`(“Applicant’s Marks”).
`
`NOTICE OF OPPOSITION
`
`1
`
`

`

`As the grounds for opposition, Opposer alleges as follows:
`
`1.
`
`Upon information and belief, Fresh Farms E-Liquid, LLC is a California limited
`
`liability company, with an address of 151 Kalmus Drive, L3, Costa Mesa, California 92626
`
`(hereinafter “Applicant”).
`
`2.
`
`Upon information and belief, Applicant is the listed owner of Application Serial
`
`No. 97/908,825, filed on April 26, 2023, to register the mark HALF BAK’D SUMO in connection
`
`with “Candy; Gummy candies,” in International Class 30 (“Applicant’s Class 30 Goods”), on an
`
`intent to use basis.
`
`3.
`
`Upon information and belief, Applicant is the listed owner of Application Serial
`
`No. 97/908,851, filed on April 26, 2023, to register the mark HALF BAK’D SUMO in connection
`
`with “Non-alcoholic drinks, namely, energy shots; Soft drinks; Sports drinks,” in International
`
`Class 32 (“Applicant’s Class 32 Goods”), on an intent to use basis.
`
`4.
`
`Continuously since at least as early as April 2011, and long prior to any date upon
`
`which Applicant can rely, Opposer has used the trademark SUMO CITRUS in association with
`
`fresh citrus fruits.
`
`5.
`
`Opposer’s SUMO CITRUS mark is arbitrary, and thus inherently distinctive, for
`
`fresh citrus fruits.
`
`6.
`
`Opposer’s SUMO CITRUS mark is conceptually and commercially strong for
`
`fresh citrus fruits.
`
`7.
`
`Prior to Applicant’s April 26, 2023 filing date or, on information and belief, any
`
`date of first use upon which Applicant can rely, and as a result of Opposer’s longstanding use
`
`and promotion of the SUMO CITRUS mark for fresh citrus fruits, the public has come to
`
`NOTICE OF OPPOSITION
`
`2
`
`

`

`recognize goods and services bearing the Opposer’s marks as goods and services coming from a
`
`single source, namely, Opposer.
`
`8.
`
`Opposer is the owner of U.S. Trademark Registration No. 3,975,937, for the mark
`
`SUMO CITRUS for “Fresh citrus fruits” in International Class 31. Said registration was issued
`
`on June 7, 2011, setting forth a date of first use of February 17, 2011. Registration No. 3,975,937
`
`is currently valid, subsisting, and incontestable. A true and correct print-out from the USPTO’s
`
`Trademark Status and Document Retrieval showing the current status and title of the above
`
`registration is attached hereto as Exhibit A.
`
`9.
`
`Opposer is the owner of U.S. Trademark Application No. 97/393,613, for the
`
`mark SUMO CITRUS for “Fruit extracts for use in the manufacture of food, cosmetics, or
`
`cleaning products; active fruit constituent ingredients used in the manufacture of food,
`
`cosmetics, beauty products or cleaning products; fruit extracts for use in the manufacture of
`
`other goods,” in International Class 1; “Essential oils; nutritional oils for cosmetic purposes;
`
`cosmetic oils; food flavoring prepared from essential oils; aromatic oils; cleaning preparations;
`
`cleaning preparations for personal use; beauty preparations; active fruit constituent ingredients
`
`for beauty preparations; beauty care cosmetics; non-medicated skin care preparations,” in
`
`International Class 3; “Scented candles; candles,” in International Class 4; “Dietary
`
`supplements; vitamin and mineral supplements; multi-vitamin preparations; powdered
`
`nutritional supplement drink mix; powered nutritional supplements,” in International Class 5;
`
`“Clothing and apparel,” in International Class 25; “Dairy-based food products; cheese; yogurt;
`
`yogurt drinks; non-dairy yogurt; dairy-based beverages; fruit concentrates, purees, syrups and
`
`powders used as ingredients for foods; freeze dried fruit; dried fruit; frozen fruits; non-alcoholic
`
`fruit extracts for use as ingredients of nutritional supplements and vitamins; jams, jellies and
`
`NOTICE OF OPPOSITION
`
`3
`
`

`

`marmalades; edible oils,” in International Class 29; “Tea; kombucha tea; tea-based beverages;
`
`ice cream; frozen confections; candy; concentrates, syrups, powders used in the preparation of
`
`confections; condiments; edible oils; salad dressing; salsa; bakery goods; mixes for bakery
`
`goods; frozen yogurt; fruit syrups used as ingredients for foods,” in International Class 30; “Live
`
`citrus plants,” in International Class 31; “Beer; drinking water; sparkling water; soft drinks;
`
`fruit juice; concentrates, syrups, and powders for making soft drinks; preparations for making
`
`soft drinks; non-alcoholic essences for making soft drinks, not in the nature of essential oils;
`
`non-alcoholic cider; non-alcoholic fruit extracts for use in the preparation of beverages,” in
`
`International Class 32; and “Alcoholic beverages except beer,” in International Class 33
`
`(collectively, “Opposer’s Additional Goods”). Said application was filed on May 3, 2022 on in
`
`intent-to-use basis. Application No. 97/393,613 is currently valid and subsisting. A true and
`
`correct print-out from the USPTO’s Trademark Status and Document Retrieval showing the
`
`current status and title of the above application is attached hereto as Exhibit B.
`
`10.
`
`Opposer’s Application No. 97/393,613 was filed prior to Applicant’s April 26,
`
`2023 filing date or, on information and belief, any date of first use upon which Applicant can
`
`rely.
`
`11.
`
`Opposer has invested significant time, energy, and resources in the advertising,
`
`promotion, and distribution of fresh citrus fruits under the SUMO CITRUS mark of Registration
`
`No. 3,975,937. The success of Opposer’s marketing and promotional efforts have not gone
`
`unnoticed, and Opposer benefits from the publicity garnered from unsolicited media coverage of
`
`its goods and services.
`
`NOTICE OF OPPOSITION
`
`4
`
`

`

`FIRST BASIS FOR OPPOSITION
`
`(Priority and Likelihood of Confusion)
`(Application Serial Nos. 97/908,825 and 97/908,851)
`
`12.
`
`Opposer realleges and incorporates by reference the allegations in paragraphs 1
`
`through 11, as if set forth fully herein.
`
`13.
`
`Opposer’s rights in its SUMO CITRUS Marks that are the subject of Registration
`
`No. 3,975,937 and Application No. 97/393,613 are prior to any rights Applicant can claim in
`
`Applicant’s Marks shown in Applicant’s Application Serial Nos. 97/908,825 and 97/908,851.
`
`14.
`
`Applicant’s Marks so resembles Opposer’s SUMO CITRUS Marks that when
`
`used in association with Applicant’s Goods, such use is to likely cause consumer confusion, or
`
`cause mistake, or deceive within the meaning of Section 2(d) of the Lanham Act, 15 U.S.C.
`
`§ 1052(d). Among other things:
`
`a.
`
`Applicant’s Marks depicted in Application Serial Nos. 97/908,825 and 97/908,851
`
`are confusingly similar in appearance, sound, meaning, and commercial
`
`impression to Opposer’s SUMO CITRUS Marks;
`
`b.
`
`Applicant’s Class 30 Goods and Applicant’s Class 32 Goods recited in
`
`Application Serial Nos. 97/908,825 and 97/908,851 are related to Opposer’s
`
`recited fresh citrus fruit goods and legally identical to, overlapping with, and/or
`
`related to Opposer’s Additional Goods;
`
`c.
`
`Applicant’s Class 30 Goods and Applicant’s Class 32 Goods recited in
`
`Application Serial Nos. 97/908,825 and 97/908,851 are unrestricted as to trade
`
`channels and are presumed to be marketed, advertised, promoted, and sold
`
`through all normal and ordinary channels of trade, which include the same
`
`channels of trade through which the Opposer’s unrestricted goods recited in
`
`NOTICE OF OPPOSITION
`
`5
`
`

`

`Opposer’s Registration No. 3,975,937 and Application No. 97/393,613 are
`
`marketed, advertised, promoted, and/or sold; and
`
`d.
`
`The recited goods in Application Serial Nos. 97/908,825 and 97/908,851 are
`
`directed to the identical classes of actual or prospective consumers as the goods
`
`recited in Opposer’s Registration No. 3,975,937 and Application No. 97/393,613
`
`for Opposer’s SUMO CITRUS Marks.
`
`15.
`
`Opposer will be damaged by the registration sought by Applicant insofar as
`
`Applicant will obtain statutory rights in Applicant’s Marks in violation and derogation of
`
`Opposer’s prior and superior rights in Opposer’s SUMO CITRUS Marks. Applicant is not
`
`entitled to the registration by virtue of Opposer’s prior rights in its SUMO CITRUS Marks.
`
`16.
`
`Based on the foregoing, registration of the HALF BAK’D SUMO Marks, as
`
`shown by Application Serial Nos. 97/908,825 and 97/908,851, is likely to cause injury and
`
`damage to Opposer.
`
`SECOND BASIS FOR OPPOSITION
`
`(Illegal Use)
`(Application Serial No. 97/908,825)
`
`17.
`
`Opposer realleges and incorporates by reference the allegations in paragraphs 1
`
`through 11, as if set forth fully herein.
`
`18.
`
`On information and belief, Applicant, doing business as HALF BAK’D,
`
`maintains an Internet website at https:///halfbakdhemp.com and https://half-bakd.com (the “Half
`
`Bak’d Website”) for purposes of advertising, promoting and offering for sale cannabis products
`
`under the HALF BAK’D and HALF BAK’D SUMO marks.
`
`19.
`
`Indeed, on the “About Us” page of the Half Bak’d Website, Applicant states:
`
`NOTICE OF OPPOSITION
`
`6
`
`

`

`“We are proud to be one of the most trusted and reputable cannabis
`companies in the industry, providing our customers with the
`highest quality cannabis products available.
`
`Whether you are a seasoned cannabis user or new to the world of
`cannabis, we are confident that you will find the perfect product to
`suit your needs at HALF BAK’D.”
`
`A true and correct printout of the “About Us” page as it appeared on February 21, 2024 at
`
`https://half-bakd.com/pages/about-us is attached hereto as Exhibit C.
`
`20.
`
`Among the cannabis products Applicant advertises, promotes and offers for sale
`
`via the Half Bak’d Website are HALF BAK’D SUMO brand gummies, which are offered in a
`
`range of flavors, including “Yuzu Citrus” shown below.
`
`21.
`
`The product pages advertising, promoting and offering for sale HALF BAK’D
`
`SUMO gummies via the Half Bak’d Website also include various representations regarding
`
`Applicant’s HALF BAK’D SUMO gummies products, including that they:
`
`NOTICE OF OPPOSITION
`
`7
`
`

`

`
`
`
`
`contain “10,000mg of THC-A, THC-P and Delta-8”;1
`
`“Provide an intense high that will leave you feeling satisfied and relaxed”;
`
` Provide “a vitalizing euphoric experience”; and
`
`
`
`are “perfect for any adult 21 and over looking to explore how cannabis edibles can put a
`
`little zing into life.”
`
`True and correct printouts of representative examples of Applicant’s product pages for its HALF
`
`BAK’D SUMO gummies products as they appeared on February 21, 2024 are attached hereto as
`
`Exhibit D.
`
`22.
`
`Use of a mark in commerce must be lawful under federal law to be the basis for
`
`federal registration under the U.S. Trademark Act. See TMEP § 907. Accordingly, applications
`
`to register marks for goods and/or services the sale or provision of which are a violation of
`
`federal law are subject to refusal, regardless of the legality of the activities under state law.
`
`23.
`
`Under the Controlled Substances Act (“CSA”), the drug class “Marihuana”
`
`(commonly referred to as “marijuana”) is defined as “all parts of the plant Cannabis sativa L.,
`
`whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and
`
`every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or
`
`resin” (subject to certain exceptions). 21 U.S.C. § 802(16).
`
`24.
`
`The CSA prohibits, among other things, manufacturing, distributing, dispensing,
`
`or possessing certain controlled substances, including marijuana. 21 U.S.C. §§ 812, 841(a)(1),
`
`844(a). Therefore, when an application identifies goods encompassing or containing marijuana
`
`1 “THC-A” is a common abbreviation for Delta-9--tetrahydrocannabinolic acid, a precursor of Delta-9-
`tetrahydrocannabinol (“THC”), the main psychoactive compound found in Cannabis sativa. “THC-P” is a common
`abbreviation for Delta-9-tetrahydrocannabiphorol, a phytocannabinoid found in cannabis plants that research
`suggests may be even more potent than THC, potentially leading to stronger intoxicating effects. “Delta-8” is a
`common abbreviation for Delta-8-tetrahydrocannabinol, a/k/a “Delta-8-THC”, a psychoactive substance also found
`in the Cannabis sativa plant.
`
`NOTICE OF OPPOSITION
`
`8
`
`

`

`or extracts of marijuana, such goods are unlawful under federal law and do not support valid use
`
`of the applied-for mark in commerce.
`
`25.
`
`Under the Agriculture Improvement Act of 2018, Pub. L. 115-334 (the “2018
`
`Farm Bill”), “hemp”2 was removed from the CSA’s definition of marijuana, which means that
`
`cannabis plants and derivatives that contain no more than 0.3% THC on a dry-weight basis are
`
`no longer controlled substances under the CSA. Even then, if an applicant’s goods are derived
`
`from “hemp” as defined in the 2018 Farm Bill, the identification of goods must specify that they
`
`contain less than 0.3% THC to ensure that the scope of the resulting registration is be limited to
`
`goods compliant with federal law.
`
`26.
`
`As detailed above, Applicant’s HALF BAK’D SUMO gummies products are
`
`cannabis edibles that, on information and belief, encompass or contain marijuana or extracts of
`
`marijuana.
`
`27.
`
`The goods recited in Applicant’s Application Serial No. 97/908,825 include
`
`“Gummy candies” without limitation or restriction and, thus, encompass marijuana or extracts of
`
`marijuana with THC content in excess of 0.3% THC on a dry-weight basis.
`
`28.
`
`On information and belief, the HALF BAK’D SUMO gummies products produced
`
`and sold by Applicant include cannabis edibles that have a THC content in excess of 0.3% THC on
`
`a dry-weight basis.
`
`29.
`
`For example, attached hereto as Exhibit E is a true and correct copy of a PharmLabs
`
`Sand Diego Certificate of Analysis dated September 12, 2023 for Applicant’s “Wild Watermelon”
`
`2 The 2018 Farm Bill defined “hemp” as“the plant Cannabis sativa L. and any part of that plant, including the seeds
`thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or
`not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”
`
`NOTICE OF OPPOSITION
`
`9
`
`

`

`flavor HALF BAK’D SUMO gummies that shows the product’s tested THC (terahydrocannabinol
`
`(Delta-9-THC) content as 1.53%.
`
`30.
`
`Likewise, attached hereto as Exhibit F is a true and correct copy of a PharmLabs
`
`Sand Diego Certificate of Analysis dated September 12, 2023 for Applicant’s “Monster Mango”
`
`flavor HALF BAK’D SUMO gummies that shows the product’s tested THC (terahydrocannabinol
`
`(Delta-9-THC) content as 1.48%.
`
`31.
`
`On information and belief, the Certificates of Analysis attached as Exhibits E and F
`
`were used by Applicant to advertise and promote its HALF BAK’D SUMO gummies and were
`
`accessed on January 2, 2024 via Applicant’s website and online store. Accordingly, Applicant’s
`
`offer and sale of HALF BAK’D SUMO gummies with a THC content in excess of 0.3% was
`
`knowing and intentional.
`
`32.
`
`On information and belief, discovery in this proceeding will disclose additional
`
`documents and evidence showing Applicant’s knowing offer and sale of HALF BAK’D SUMO
`
`gummies with a THC content in excess of 0.3%.
`
`33.
`
`Further, even if one or more of the HALF BAK’D SUMO gummies products
`
`produced and sold by Applicant have a THC content of 0.3% or less, Applicant prominently
`
`advertises and promotes its HALF BAK’D SUMO gummies products as containing Delta-8-THC.
`
`34.
`
`On information and belief, the U.S. Drug Enforcement Administration, which
`
`enforces and has responsibility for interpreting the CSA, considers production of Delta-8-THC
`
`by means of a chemical reaction starting from cannabidiol (“CBD”), rather than natural
`
`extraction from hemp plants, makes the produced Delta-8-THC synthetic, and therefor, a
`
`controlled substance not exempted from the CSA by the 2018 Farm Bill. Thus, to the extent
`
`Applicant’s HALF BAK’D SUMO gummies products contain synthetic, rather than naturally-
`
`NOTICE OF OPPOSITION
`
`10
`
`

`

`extracted Delta-8-THC, the goods would not qualify as “hemp” under the 2018 Farm Bill and
`
`would be ineligible under the CSA.
`
`35.
`
`Even if Applicant’s HALF BAK’D SUMO gummies qualified as goods derived
`
`from “hemp” under the 2018 Farm Bill and Applicant’s goods identification included an appropriate
`
`restricting specifying that the goods contain less than 0.3% THC, on information and belief, the
`
`offer and sale of the goods would still be illegal under the Federal Food Drug and Cosmetic Act
`
`(“FDCA”).
`
`36.
`
`The 2018 Farm Bill explicitly preserved the authority of the U.S. Food and Drug
`
`Administration (“FDA”) to regulate products containing cannabis or cannabis-derived
`
`compounds under the FDCA. FDA treats products containing cannabis or cannabis-derived
`
`compounds as it does any other FDA-regulated products — meaning they’re subject to the same
`
`authorities and requirements as FDA-regulated products containing any other substance. This is
`
`true regardless of whether the cannabis or cannabis-derived compounds are classified as hemp
`
`under the 2018 Farm Bill.
`
`37.
`
`Under the FDCA, any product intended to have a therapeutic or medical use, and
`
`any product (other than a food) that is intended to affect the structure or function of the body of
`
`humans or animals, is a drug. Drugs must generally either receive premarket approval by FDA
`
`through the New Drug Application (NDA) process or conform to a “monograph” for a particular
`
`drug category, as established by FDA’s Over-the-Counter (OTC) Drug Review. An unapproved
`
`new drug cannot be distributed or sold in interstate commerce.
`
`38.
`
`On information and belief, Applicant’s HALF BAK’D SUMO gummies products
`
`containing Delta-8 THC are drugs under section 201(g)(1) of the FDCA, 21 U.S.C. § 321(g)(1),
`
`NOTICE OF OPPOSITION
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`11
`
`

`

`because they are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
`
`disease, and/or intended to affect the structure or any function of the body.
`
`39.
`
`In addition to marketing its HALF BAK’D SUMO gummies products as providing
`
`“an intense high” and a “vitalizing euphoric experience”, as detailed above, Applicant actively
`
`promotes the purported benefits of products containing Delta-8 THC for use in the diagnosis, cure,
`
`mitigation, treatment, or prevention of disease. For example, the Half Bak’d Website includes a
`
`page titled “The Ultimate Guide to Delta Cannabinoid Products” that features a photo of a hand
`
`holding edible gummies that promotes the alleged benefits of Applicant’s HALF BAK’D
`
`products containing Delta-8-THC in the treatment of anxiety relief, pain management, appetite
`
`stimulation and nausea reduction, as shown in the excerpt below and the printout of the page
`
`attached hereto as Exhibit G:
`
`40.
`
`On information and belief, Applicant’s HALF BAK’D SUMO gummies products
`
`containing Delta-8-THC are not generally recognized as safe and effective (“GRASE”) for the
`
`various uses advertised and promoted on Applicant’s website and, therefore, are “new drugs” under
`
`section 201(p) of the FDCA, 21 U.S.C. § 321(p).
`
`41. With certain exceptions not applicable here, new drugs may not be legally
`
`introduced or delivered for introduction into interstate commerce without prior approval from FDA,
`
`NOTICE OF OPPOSITION
`
`12
`
`

`

`as described in sections 301(d) and 505(a) of the FDCA, 21 U.S.C. § 355(a). FDA approves a new
`
`drug on the basis of scientific data and information demonstrating that the drug is safe and effective.
`
`On information and belief, there are no FDA-approved applications in effect for any of Applicant’s
`
`HALF BAK’D SUMO gummies products containing Delta-8-THC, accordingly, the sale and
`
`offering of Applicant’s HALF BAK’D SUMO gummies products is illegal.
`
`42.
`
`On information and belief, Applicant’s HALF BAK’D SUMO gummies products
`
`containing Delta-8-THC are also misbranded drugs within the meaning of section 502(f)(1) of the
`
`FDCA, 21 U.S.C. § 352(f)(1), in that their labeling fails to bear adequate directions for use.
`
`43.
`
`“Adequate directions for use” under the FDCA means directions under which a
`
`layperson can use a drug safely and for the purposes for which it is intended. See 21 C.F.R.
`
`§ 201.5. On information and belief, Applicant’s HALF BAK’D SUMO gummies products
`
`containing Delta-8-THC are offered for conditions that are not amenable to self-diagnosis and
`
`treatment by individuals who are not medical practitioners. Therefore, adequate directions for
`
`use cannot be written so that a layperson can use these drugs safely for their intended purposes.
`
`44.
`
`Under 21 C.F.R. §§ 201.100(c)(2) and 201.115, FDA-approved prescription drugs
`
`that bear their FDA-approved labeling are exempt from the requirements that they bear adequate
`
`directions for use by a layperson. However, on information and belief, Applicant’s HALF BAK’D
`
`SUMO gummies products containing Delta-8-THC are not exempt from the requirement that their
`
`labeling bear adequate directions for use because no FDA-approved applications are in effect for
`
`these products.
`
`45.
`
`Because the introduction or delivery for introduction into interstate commerce of
`
`misbranded drugs violates section 301(a) of the FDCA, 21 U.S.C. § 331(a), the sale and distribution
`
`NOTICE OF OPPOSITION
`
`13
`
`

`

`of Applicant’s HALF BAK’D SUMO gummies products containing Delta-8-THC is, on
`
`information and belief, illegal.
`
`46.
`
`On information and belief, Applicant’s HALF BAK’D SUMO gummies products
`
`are also foods to which Delta-8-THC have been added.
`
`47.
`
`As defined in section 201(s) of the FDCA, 21 U.S.C. § 321(s), the term “food
`
`additive” refers to any substance the intended use of which results in its becoming a component of
`
`any food, unless the substance is generally recognized as safe (“GRAS”) among qualified experts
`
`under the conditions of its intended use, or unless the substance meets a listed exception.
`
`48.
`
`Under the FDCA, food additives require premarket approval based on data
`
`demonstrating safety. Any food additive that has not been approved for its intended use in food is
`
`deemed to be unsafe under section 409(a) of the FDCA, 21 U.S.C. § 348(a), and causes the food to
`
`be adulterated under section 402(a)(2)(C)(i) of the FDCA, 21 U.S.C. § 342(a)(2)(C)(i). Introduction
`
`of an adulterated food into interstate commerce is prohibited under section 301(a) of the FDCA, 21
`
`U.S.C. § 331(a).
`
`49.
`
`On information and belief, there is no FDA regulation that authorizes the use of
`
`Delta-8-THC as a food additive.
`
`50.
`
`On information and belief, the FDA has not determined that Delta-8-THC is
`
`generally recognized as safe among qualified experts under the conditions of its intended use. To
`
`the contrary, the FDA has recently disclosed that, based on its review of published, scientific
`
`literature, “existing data and information do not provide an adequate basis to conclude that the use
`
`of Delta-8 THC in food meets the criteria for GRAS status.” See September 28, 2023, FDA
`
`Warning Letter re GCHNC LLC, MARCS-CMS 656057, accessed at https://www.fda.gov/
`
`inspections-compliance-enforcement-and-criminal-investigations/warning-letters/gchnc-llc-dba-
`
`NOTICE OF OPPOSITION
`
`14
`
`

`

`hemp-xrgate-city-hemp-dba-hemp-xrallaziya-enterprises-llc-dba-hemp-xr-656057-09282023. The
`
`FDA also recently concluded that “[s]ome of the available data raise serious concerns about
`
`potential harm from Delta-8 THC,” including potential for adverse effects on the central nervous
`
`and cardiopulmonary systems. Id.
`
`51.
`
`On information and belief, Delta-8-THC does not qualify for any listed food additive
`
`exception under section 201(s) of the FDCA, 21 U.S.C. § 321(s).
`
`52.
`
`Accordingly, Applicant’s HALF BAK’D SUMO gummies products containing
`
`Delta-8-THC are adulterated under section 402(a)(2)(C)(i) of the FDCA, 21 U.S.C.
`
`§ 342(a)(2)(C)(i), because they bear or contain an unsafe food additive, which makes their
`
`introduction into interstate commerce illegal under section 301(a) of the FDCA, 21 U.S.C.
`
`§ 331(a).
`
`53.
`
`Opposer will be damaged by the registration sought by Applicant insofar as
`
`Applicant will obtain statutory rights in Applicant’s Mark for goods the use and sale of which
`
`would be illegal under federal law.
`
`54.
`
`Based on the foregoing, registration of the HALF BAK’D SUMO Mark, as shown
`
`by Application Serial Ns. 97/908,825, is likely to cause injury and damage to Opposer.
`
`THIRD BASIS FOR OPPOSITION
`
`(Lack of Bona Fide Intent to Use)
`(Application Serial Nos. 97/908,825 and 97/908,851)
`
`55.
`
`Opposer realleges and incorporates by reference the allegations in paragraphs 1
`
`through 11 and 17 through 54, as if set forth fully herein.
`
`56.
`
`To qualify for a federal registration, the use of a mark and the goods and/or
`
`services to which the mark is applied must comply with all applicable federal laws. See TMEP
`
`§ 907. If the goods or services with which a mark is intended to be used are prohibited by law,
`
`NOTICE OF OPPOSITION
`
`15
`
`

`

`the applicant can neither use its mark in lawful commerce nor have the requisite bona fide intent
`
`to use the mark in lawful commerce. TMEP § 907.
`
`57.
`
`On information and belief, as of the time of Applicant’s filing Application Serial
`
`Nos. 97/908,825 and 97/908,851 on April 26, 2023, Applicant did not have an intent to offer
`
`under the HALF BAK’D SUMO marks any of the goods recited in Application Serial Nos.
`
`97/908,825 and 97/908,851, namely, candy; gummy candies; non-alcoholic drinks, namely,
`
`energy shots; soft drinks; and sports drinks, other than candy; gummy candies; non-alcoholic
`
`drinks, namely, energy shots; soft drinks; and sports drinks that encompass or contain cannabis,
`
`including but not limited to marijuana or extracts of marijuana, “hemp” as that term is defined
`
`under the 2018 Farm Bill and/or Delta-8-THC.
`
`58.
`
`On information and belief, Applicant lacks any documentation showing its plans
`
`to use the HALF BAK’D SUMO marks with any goods, including the goods recited in
`
`Application Serial Nos. 97/908,825 and 97/908,851, that do not encompass or contain cannabis,
`
`including

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