ESTTA Tracking number:
`
`Filing date:
`
`ESTTA1367505
`06/26/2024
`
`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
`
`Granted to date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`Bryx, Inc.
`
`08/28/2024
`
`59 HALSTEAD STREET
`ROCHESTER, NY 14610
`UNITED STATES
`
`JESSICA N. CLEMENTE
`HARTER SECREST & EMERY LLP
`50 FOUNTAIN PLAZA
`SUITE 1000
`BUFFALO, NY 14202
`UNITED STATES
`Primary email: jclemente@hselaw.com
`Secondary email(s): trademark@hselaw.com, mberchou@hselaw.com
`5852311427
`
`Docket no.
`
`099013.41
`
`Applicant information
`
`Application no.
`
`97820318
`
`Opposition filing
`date
`
`Applicant
`
`06/26/2024
`
`KCI Holdings, Inc.
`936 RIDGEBROOK ROAD
`SPARKS, MD 21152
`UNITED STATES
`
`Goods/services affected by opposition
`
`Publication date
`
`04/30/2024
`
`Opposition period
`ends
`
`08/28/2024
`
`Class 009. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Downloadable computer modelling software
`for use in the architecture, engineering and construction industry
`
`Class 035. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Provision of an on-line marketplace for buy-
`ers and sellers of computer modelling software and subscription-based computer modelling software
`for use in the architecture, engineering and construction industry
`
`Class 042. First Use: None First Use In Commerce: None
`All goods and services in the class are opposed, namely: Providing temporary use of online non-
`downloadable computer modelling software for use in the architecture, engineering and construction
`industry
`
`
`
`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.
`
`5473997
`
`Register
`
`Principal
`
`Registration date
`
`05/22/2018
`
`Word mark
`
`Design mark
`
`BRYX
`
`Application date
`
`08/30/2017
`
`Foreign priority
`date
`
`NONE
`
`Description of
`mark
`
`Goods/services
`
`NONE
`
`Class 009. First use: First Use: Jan 30, 2017 First Use In Commerce: Jan 30,
`2017
`downloadable mobile application for providing rescue and emergency response
`information
`
`U.S. registration
`no.
`
`6146388
`
`Register
`
`Principal
`
`Registration date
`
`09/08/2020
`
`Application date
`
`02/06/2020
`
`Foreign priority
`date
`
`NONE
`
`Word mark
`
`Design mark
`
`Description of
`mark
`
`Goods/services
`
`BRYX EMERGENCY RESPONSE, SIMPLIFIED.
`
`The mark consists of two intersecting elliptical geometric shapes with a solid
`central circle, surrounded by a square with rounded corners, to the left of the
`stylized capitalized wording "BRYX", above the stylized wording "EMERGENCY
`RESPONSE, SIMPLIFIED.".
`
`Class 042. First use: First Use: Dec 1, 2019 First Use In Commerce: Dec 1,
`2019
`Software as a service (SAAS) services featuring software for providing situation-
`al awareness for first responders
`
`Attachments
`
`87589446#TMSN.png( bytes )
`88786990#TMSN.png( bytes )
`BRYX Opposition.pdf(172596 bytes )
`
`Signature
`
`/jnc/
`
`Name
`
`Date
`
`JESSICA N. CLEMENTE
`
`06/26/2024
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`BRYX, INC.
`
`Opposer,
`
`vs.
`
`KCI HOLDINGS, INC.,
`
`Applicant
`
`Opposition No. _________
`
`Opposed Application: 97820318
`
`Opposed Mark: BRYX
`
`NOTICE OF OPPOSITION
`
`Bryx, Inc. (“Petitioner”) believes it will be damaged by registration of the mark shown in
`
`Application Serial No. 97820318 (the “Opposed Application”), which was filed on March 2,
`
`2023 by KCI Holdings, Inc. (“Applicant”), and hereby opposes the registration of said mark
`
`pursuant to 15 U.S.C. § 1063.
`
`As grounds for the Opposition, Opposer alleges that:
`
`1.
`
`Opposer is a corporation formed in the State of Delaware, and located and doing
`
`business at 59 Halstead Street, Rochester, New York 14610.
`
`2.
`
`Upon information and belief, Applicant is a corporation formed in the State of
`
`Delaware, with an address of 936 Ridgebrook Road, Sparks, Maryland 21152.
`
`3.
`
`Since long prior to March 2, 2023, the filing date of the Opposed Application,
`
`Opposer has used and is now using the mark BRYX in commerce in connection with, among
`
`other things, a mobile application for providing rescue and emergency response information and
`
`software as a service (SAAS) services featuring software for providing situational awareness for
`
`first responders (“Opposer’s Goods and Services”).
`
`
`
`4.
`
`Opposer owns the following United States trademark registrations for the mark
`
`BRYX and BRYX formative marks:
`
`Mark
`
`1. BRYX
`
`Registration
`No.
`5473997
`
`2.
`
`6146388
`
`Goods/Services
`
`Cl. 09: downloadable mobile
`application for providing
`rescue and emergency
`response information
`Cl. 42: Software as a service
`(SAAS) services featuring
`software for providing
`situational awareness for first
`responders
`
`Reg.
`Date
`May 22,
`2018
`
`Sept. 8,
`2020
`
`5.
`
`Opposer’s use of its BRYX marks in connection with Opposer’s Goods and
`
`Services has been continuous since its initial use and first use in interstate commerce of at least
`
`as early as January 30, 2017, and the mark has not been abandoned.
`
`6.
`
`Opposer’s rights to the mark subject to Registration No. 5473997 are
`
`incontestable and such registration is conclusive evidence of the validity of the registered mark,
`
`the registration of the mark, Opposer’s ownership of the mark, and Opposer’s exclusive right to
`
`use the mark in connection with the cited goods.
`
`7.
`
`8.
`
`Opposer’s BRYX marks are inherently and commercially distinctive.
`
`Notwithstanding Opposer’s prior rights in and to the BRYX marks, Applicant
`
`filed an application on March 2, 2023 to register the mark BRYX on an intent to use basis for the
`
`following goods and services:
`
` Class 09: Downloadable computer modelling software for use in the architecture,
`engineering and construction industry
`
` Class 35: Provision of an on-line marketplace for buyers and sellers of computer
`modelling software and subscription-based computer modelling software for use
`in the architecture, engineering and construction industry
`
`2
`
`
`
` Class 42: Providing temporary use of online non-downloadable computer
`modelling software for use in the architecture, engineering and construction
`industry
`
`(“Applicant’s Goods and Services”).
`
`9.
`
`The Opposed Application was assigned Serial No. 97820318 and published for
`
`opposition in the Trademark Official Gazette of April 30, 2024.
`
`10.
`
`On May 24, 2024, Opposer timely requested a ninety-day extension of time to
`
`oppose the Opposed Application with the Trademark Trial and Appeal Board (“TTAB”), which
`
`the TTAB granted and rendered August 28, 2024 the new deadline to oppose.
`
`11.
`
`Opposer has timely filed this Notice of Opposition.
`
`12.
`
`Opposer’s BRYX mark and Applicant’s BRYX mark are identical; and Opposer’s
`
`mark which is the subject of Registration No. 6146388 is confusingly similar in sight, sound,
`
`appearance and commercial meaning to Applicant’s BRYX mark.
`
`13.
`
`Applicant’s Goods and Services are identical, similar, related, or complementary,
`
`to Opposer’s Goods and Services and/or within the natural scope of expansion of Opposer’s
`
`Goods and Services and channels of trade.
`
`14.
`
`In view of the identical marks of the respective parties and the similar, related,
`
`and complementary nature of the respective parties’ Goods and Services, Applicant’s mark so
`
`resembles Opposer’s marks previously used in the United States, and not abandoned, as to be
`
`likely to cause confusion, or to cause mistake, or to deceive in violation of Section 2(d) of the
`
`Lanham Act, 15 U.S.C. § 1052(d).
`
`15.
`
`Opposer has been damaged, and will continue to be damaged, if Applicant is
`
`permitted to register BRYX, and therefore opposes the registration of Applicant’s mark.
`
`3
`
`
`
`WHEREFORE, Opposer prays that this Opposition be sustained, that the Opposed
`
`Application be refused registration, and that no registration be issued thereon to Applicant.
`
`Dated: June 26, 2024
`
`HARTER SECREST & EMERY LLP
`
`By: /Jessica N. Clemente/ _
`Michael J. Berchou
`Jessica N. Clemente
`50 Fountain Plaza, Suite 1000
`Buffalo, NY 14202
`(716) 844-3753
`mberchou@hselaw.com
`jclemente@hselaw.com
`trademark@hselaw.com
`
`Attorneys for Opposer Bryx, Inc.
`
`4
`
`
