'7'"/74%
`
`
`
` "”777HA A A A A V --
`
`
`
`
`
`
`
`' BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`PETITION FOR CANCELLATION
`
`Cancellation No.
`
`Registration No. 2,757,576
`,
`.
`Date of Issue: August 26, 2003
`
`+
`-
`_
`
`09-29-2003
`US. Patent & TMOfcITM Mail Rcpt DI. #11
`
`)
`
`) )
`
`) )
`
`)
`
`)
`)
`)
`)
`
`) J
`
`PTS LABS LLC,
`
`Petitioner,
`
`V.
`
`NF DISTRHBUTION CANADA LTD.,
`
`Registrant
`
`Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`PETITION FOR CANCELLATION PURSUANT TO 37 C.F.R. § 2.111
`
`Madam/Sir:
`
`Petitioner, PTS Labs LLC (“PTS”), an Illinois corporation located and doing business at
`
`9820 W. Foster Avenue, Chicago, Illinois 60018, believes that it is being or will be damaged by
`
`Registration No. 2,757,576 for the mark REVITALX, and, by its attorney, hereby Petitions to
`
`cancel same pursuant to 37 C.F.R. § 2.111, 15 U.S.C. § 1052, and 15 U.S.C. § 1064.
`
`10/22/2003 ZCLIFT01 00000124 2757576
`
`01 rc:e4o1
`-
`
`300-00 0P
`As grounds for this Petition, PTS alleges that:
`
`1.
`
`PTS has been actively using the mark REVITAL, alone and in connection with
`
`other terms, continuously since January 1994, well prior to both Registrant’s first use and
`
`application filing date. PTS began using the mark REVITAL ICE in connection with pediatric
`
`electrolyte products at least as early as January 1994 (Exhibit A) and has been using the mark
`
`

`
`
`
`1;‘
`P...
`
`'5
`
`REVITAL in connection with pediatric electrolyte products continuously since at least as early as
`
`May 15, 2000 (Exhibit B)..
`
`3.
`
`PTS’s REVITAL line of pediatric electrolyte products presently includes oral
`
`maintenance solutions, freezer pops, jell cups, and jell tubes. These products are manufactured,
`
`distributed and sold in interstate commerce throughout the United States, with annual sales
`
`thereof in excess of $ 2 million for fiscal year 2002.
`
`4.
`
`By virtue of PTS’s development efforts, considerable promotional expenditures,
`
`and high quality of its products,
`
`the purchasing public has come to and do recognize the
`
`REVITAL trademark as being used by PTS or by a single source, and to associate and identify
`
`the REVITAL mark with PTS, or a single source, such that PTS derives substantial goodwill and
`
`value from identification by the consuming public and trade.
`
`5.
`
`PTS has a pending application to register the mark REVITAL for use in
`
`connection with electrolyte solutions in liquid, frozen, and gel form, in International Class 5, as
`
`shown by Application Ser. Nos. 78/189644, attached hereto as Exhibit C. PTS also has a
`
`pending application to register the mark REVITAL based on an intent to use the mark in
`
`connection with nutritional supplements containing vitamins and minerals in International Class
`
`5, as shown by Application Ser. No. 78/189653, attached hereto as Exhibit D.
`
`6.
`
`On March ll, 2002, NF Distribution Canada Ltd., (“Natural Factor”) a Canadian
`
`corporation located and doing business at 1550 United Boulevard Coquitlam, British Columbia
`
`V3K 6Y7, filed an application to register the mark REVITALX based on an intent to use the
`
`mark in connection with dietary and nutritional supplements, vitamins and minerals,
`
`in
`
`MCDONNELL EOEHNEN
`HULBERT & BERGHOFF
`300 SOUTH WACKER DRIVE
`CHICAGO, ILLINOIS 60606
`TELEPHONE (312) 913-0001
`
`

`
`
`
`lntemational Class 5. Natural Factor’s first use in commerce of the term REVITALX was
`
`alleged to be March 12, 2003. On August 26, 2003, the REVITALX mark was registered on the
`
`Principal Register (Reg. No. 2,757,576).
`
`7.
`
`The REVITALX mark is substantially identical to the REVITAL mark, with only
`
`a single letter differentiating the two marks. As used in commerce in the United States, the type
`
`size and font are nearly identical (as shown by Exhibits E and F attached hereto), and the
`
`REVITALX mark is used in connection with goods, nutritional
`
`supplements,
`
`that are
`
`substantially similar to and travel in the same trade channels as the goods, electrolyte solutions,
`
`sold under PTS’s REVITAL mark.
`
`GROUND I— LIKELIHOOD OF CONFUSION
`
`8.
`
`PTS incorporates by reference the allegations of Paragraphs 1 through 7 as if fully
`
`set forth herein.
`
`9.
`
`Through actual use in commerce, PTS has established prior use of the REVITAL
`
`mark well before Natural Factor’s application to register the mark REVITALX.
`
`10.
`
`PTS’s trade name REVITAL has a high degree of inherent and acquired
`
`distinctiveness.
`
`11.
`
`PTS’s nationwide use of the term REVITAL in connection with pediatric
`
`electrolyte products is distinctive and has generated extensive good will and consumer
`
`recognition.
`
`12.
`
`Natural Factor’s registered REVITALX mark is confusingly similar to PTS’s
`
`MCDONNELL BOEHNEN
`HULBERT & BERGHOFF
`300 SOUTH WACKER DRNE
`CHICAGO, ILLINOIS 60606
`TELEPHONE (312) 913-0001
`
`

`
`
`
`REVITAL mark.
`
`13.
`
`Natural Factor’s confusingly similar mark REVITALX is
`
`likely to cause
`
`confusion and mistake in the minds of the public as to the source of the parties’ respective goods.
`
`14.
`
`PTS believes that it is being or will be damaged by the continued registration of
`
`the mark REVITALX.
`
`GROUND H — DILUTION
`
`15.
`
`PTS incorporates by reference the allegations of Paragraphs 1 through 13 as if
`
`fully set forth herein.
`
`16.
`
`Because of the high degree of inherent and acquired distinctiveness of the trade
`
`name REVITAL, the length of time and extent to which PTS has used the REVITAL trade name,
`
`the extensive advertising and publicity the REVITAL trade name has received, the nationwide
`
`trading area in which the REVITAL trade name is used, and the high degree of consumer
`
`recognition of the REVITAL trade name, the REVITAL trade name is famous pursuant to 15
`
`U.S.C. § 1125(c)(l).
`
`17.
`
`Natural Factor’s continued registration and use of the mark REVITALX would
`
`lessen the capacity of PTS’s trade name REVITAL to identify and distinguish PTS’s goods sold
`
`thereunder, and, as such, would cause dilution of the REVITAL trade name in violation of 15
`
`U.S.C. § 1125(0).
`
`18.
`
`PTS believes that it is being or will be damaged by the continued registration of
`
`MCDONNELL BOEHNEN
`HULBERT & BERGHOFF
`300 SOUTH WACKER DRIVE
`CHICAGO. ILLINOIS 60606
`TELEPHONE (312) 913-0001
`
`

`
`
`
`the mark REVITALX, because such continued registration will support and assist Natural Factor
`
`'-
`
`in diluting the distinctive quality of PTS’s famous REVITAL trade name.
`
`WHEREFORE, PTS prays that Registration No. 2,757,576 be cancelled, and that this
`
`Petition for Cancellation be sustained in favor of PTS.
`
`Dated: Septemberzé, 2003
`
`Respectfully submitted,
`
`
`
`MCDONNELL BOEHNEN HULBERT & BERGHOFF
`300 S. Wacker Drive
`
`Chicago, Illinois 60606
`Tel:
`(312) 913-0001
`Fax:
`(312) 913-0002
`
`Attorneys for the Petitioner,
`PTS LABS, LLC
`
`MCDONNELL BOEHNEN
`HULBERT G: BERGHOFF
`300 SOUTH WACKER DRNE
`CHICAGO, ILLINOIS 60606
`TELEPHONE (312) 913-0001
`
`

`
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`
`Typed Drawing
`
`Word Mark
`
`REVITAL ICE
`
`Goods and
`Services
`
`(CANCELLED) IC 005. US 006 018 044 046 051 052. G & S: rehydrating freezer
`pops to rehydrate children who have lost fluid due to illness. FIRST USE: 19930900.
`FIRST USE IN COMMERCE: 19940100
`
`D”‘W‘“g
`
`(1) TYPED DRAWING
`
`Serial Number
`
`74604503
`
`Filing Date
`November 30, 1994
`P“b“S1.“?d M August 29, 1995
`Opposition
`
`Registration
`Number
`
`gffgstration
`Owner
`
`1937139
`
`November 21, 1995
`(REGISTRANT) Clear Mountain Products, Inc. CORPORATION ILLINOIS 36
`West 465 Hunters Gate Road St. Charles ILLINOIS 60175
`
`A“°“‘ey °f
`Record
`
`Markl Feldman
`'
`
`Type of Mark
`
`TRADEMARK
`
`Register
`Live/Dead
`Indicator
`
`PRINCIPAL
`
`DEAD
`
`Cancellation
`
`August 24’ 2002
`
`http://tess2.uspto.goV/bin/showfield?f=doc&state=j9643u.2. 17
`
`9/26/2003
`
`1}:‘fig
`
`1
`
`I
`
`

`
`Invoice
`
`INVOICE #
`
`V 3123:
`
`I!
`
`_ W55./1'45/2’000
`j”~”0.~6“i'I:I_'-2
`DUE DAZIZE
`06/14/2000“ 2
`ij_____:__
`
`fig
`
`,
`
`
`
`SHIP TO
`PJC Distribution Co., Inc.
`DBA Brooks Pharmacy
`RR 1, 500 Forbes Road 7
`
`!DayviI|e CT 06241
`
`
`
`7
`
`! BILL TO
`§Brooks Pharmacy (Maxi Drug)
`:50 Service Avenue
`
`fWarwick, RI 02886
`A
`
`L_
`
`.._.
`
`_ .._
`
`2-... _._._..._.._..-._ .._ _._.__ .._
`
`‘
`
`i
`I
`
`F.O.B.
`Delivered
`
`Lot Nun;t).erW;‘
`110901
`
`7\III|OUNT
`03,600.00 0
`
`3
`
`28.80 0
`
`1
`
`1
`I
`
`Purchase Order #
`210605-E1
`
`TERMS
`1% 10 Net 30
`
`REP/..—7SFI¥
`
`
`
`VIA
`Roadway
`
`DESCRIPTION‘
`Case of REVITAL Liquid Squeezers
`9 X 3.802 per Carton & 8 Cartons per Case
`
`0‘
`
`-
`
`V
`
`7 I
`
`M ‘Q.-lJ7\NTl1'.Y
`' 125
`
`ITEM CODE]
`’ soo20
`
`*
`
`.
`
`‘
`
`[
`i
`1
`
`II
`
`1
`!
`
`T
`--_. “'
`_
`7
`‘.- 7"
`._..
`.5’ 7.7 -.
`..
`M A
`PLEASE REMIT TO: PTS LABS, 9820 W FOSTER AVE., ROSEMONT, IL,
`60018 QUESTIONS: 773-992-5421
`
`"_"Viw_-._I:.”___lZ'.‘.';§1::ZEf“""'""'"'"'
`
`L Total
`
`$3,500.00
`
`PTS LABS
`.
`9320 W. Foster Avenue
`Rosemont,
`IL 60018
`Telephone 773-992-2326
`Facsimile 773-992-2320
`
`info@revi!alonline.com
`www.revitalonlinacom
`
`

`
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`Typed Drawing
`
`Word Mark
`
`REVITAL
`
`Goods and
`Services
`
`IC 001. US 001 005 O06 010 026 046. G & S: Rehydrating electrolyte solutions in
`liquid, frozen, and gel form. FIRST USE: 20000515. FIRST USE IN COMMERCE:
`200005 15
`
`Mark
`Drawing Code (1) TYPED DRAWING
`Serial Number 78189644
`
`Filing Date
`
`November 27, 2002
`
`Owner
`
`(APPLICANT) PTS Labs, LLC CORPORATION ILLINOIS 9820 West Foster
`Avenue Rosemont ILLINOIS 60018
`
`Att
`Recfifgley 0
`
`f
`
`Jeremy Noe
`
`Type of Mark TRADEMARK
`
`Register
`Live/Dead
`Indicator
`
`PRINCIPAL
`
`LIVE
`
`W<-"Hm
`cum: L551‘ Next‘ Lm Fmsrnuc PREV Doc NEXT Doc
`
`http://tess2.uspto.gov/bin/showfield?f=doc&state=j 9643u.2.2
`
`9/26/2003
`
`

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`Typed Drawing
`
`Word Mark
`
`REVITAL
`
`Goods and
`Services
`
`IC 005. US 006 018 044 046 051 052. G & S: Nutritional supplements containing
`vitamins and minerals
`
`Mark D”"""g
`Code
`
`(1) TYPED DRAWING
`
`Serial Number
`
`78189653
`
`November 27, 2002
`FILED AS ITU
`
`(APPLICANT) PTS Labs, LLC CORPORATION ILLINOIS 9820 West Foster
`Avenue Rosemont ILLINOIS 60018
`
`Jeremy Noe
`TRADEMARK
`
`PRINCIPAL"
`
`Filing Date
`Filed ITU
`
`Owner
`
`fitetcgriiiey of
`Type of Mark
`
`Register
`Live/Dead
`Indicator
`
`1"‘|—(
`
`E11
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`resswoueRE
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`
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`

`
`
`
`
`
`UseIuViru|"'squoum,Ra\fital"JuIlCup:undRawtuI"Fmzar
`Pops rather than sports drinks, roll drinlu, iuices or water ta
`
`ReVita|" Squeaurs are to be used with Re\fital"' Jnll Cups
`and ReViIal" Freezer Paps to ofler variety and help prevent
`dehydration.
`
`ReVita|"‘ Squeazen provide [per liter): nodlum, 45 mEq;
`potassium, 20 mEq; chloride, 35 mEq; citrate, 30mEq;
`dextrose, 25 9; Calories, 100.
`
`ReVita|" Squeezers ingredients: water, white grape iuice,
`citric acid, potassium citrate, sodium chloride, cellulose gum,
`wcrolose, sodium banmate, potassium xerbate, sodium citrate,
`acesullame K.
`
`Orange also contains:
`Natural and artificial llavurs,
`FDC Yellow #5, FDC Red #40
`Grapl also Domains:
`Natural and artilicial Flavors,
`grape iuice cancentratn (calart
`Cherry also contains:
`Natural and artificial llavors,
`FDC Red #40
`_ Blue Raspberry alw contains:
`Natural and artificial flavors,
`FDC Bl" #1
`For information call 1.800.739.1515;
`8:30 am - 4:30 pm CST, weekdays or
`visit us an the Internet at
`www.revitali<e.cam
`
`ReVital"' Squeaurs are distributed by
`PTS Labs, LLC. lalre Forest, llllnois 60045
`
`ReVital" is a trademark of PTS labs, LLC. @7000
`Hugs" is a trademark of PTS Labs, LLC. @2000
`
`USE BEFORE:
`
` SQ U E E z E R5
`
`Helps Prevent Dehydration
`
`Nine Single Servings
`Tastes Great Chilled
`
`Convenient to Use
`and Fun to Drink
`
`Delicious
`-
`Frull Tastes
`Grape
`Orange
`Cherry
`on B ue
`d I
`
`R°5PbeF|')’
`Natural and
`Artillclal Flavan
`Carrtllnl I01 Ital
`White Grape Mu
`
`
`
`

`
`CWD Health Shoppe
`
`
`
`
`shopph
`made ea
`
`Four sirr
`
`ways t
`browse
`
`G Prod uc
`Searct
`
`£3 Bi'0WS(
`by Bra:
`DA-Z Inc
`
`Becom
`Memb
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`Members
`notified (
`special disc:
`and promot
`They are 2
`entitled to
`"Expres
`CheckoL
`service
`
`0 Member
`Benefits
`
`(3 Links
`
`I) About CWD
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`
`
`
`
`454 Gram - Powdered Drink
`Mix
`
`
`
`an Contact Us
`
`
`
`Suggested Retail Price $38.98
`CWD Price: $30.98
`
`
`Code -GA2400
`
`
`
`Am} 'rojc.«Rir A
`
`Revita|XT""
`
`
`
`LowAllergy Potential, Low Glycemic Index and
`Gluten Free.
`
`Soothing Support for the Stomach, Intestine and
`Colon.
`
`
`
`
`
` Pain after eating? Bloating? Cramps and gas?
`
`
`
`
`
`Constipation or diarrhea?
`RevitalXT'V' is a sophisticated nutritional food supplement
`for gastrointestinal healing and support.
`
`
`
`http://www.Canadian-wholesale-direct.corn/GA2400.htm1
`
`9/26/2003
`
`
`
`0 Customer
`Service
`
`One of Natural Factors
`
`New Nutritional Med-Food Products
`
`
`.1"u«»».«h.3:._.;*..?.»‘V,.M,»<VV
`
`
`italXT""
`
`
`A Sophisticated Nutritional
`Food Supplement For
`Gastrointestinal Healing
`And Support.
`Secur:
`
`online
`
`
`
`
`
`

`
`CWD Health Shoppe
`
`Page 2 of 4
`
`‘
`
`'j'.,_
`‘-,:_-.}
`ii‘;
`‘Ali
`'
`
`it
`
`Mixed up with water orjuice (fresh vegetable juice is
`great), Revita|X""‘ is a food supplement that is well
`tolerated and can actually help heal. Of course it is also
`an excellent daily nutritional supplement for anyone with
`normal digestion. A daily dose of RevitalX“" can provide
`a sensitive digestive system with important nutrients for
`optimum long-term gastrointestinal health.
`
`Most people make bad food choices on occasion.
`Overeating, holiday feasting, eating heavily close to
`bedtime, eating junk food, drinking excessively, or eating
`a food to which you are allergic or intolerant are just
`some of the ways you might upset or exhaust your
`intestinal tract.
`
`Rapidly restore good health and comfort by using
`RevitalXT'V' as your primary food for 1 or 2 days (1-3
`servings per day). RevitalXT"” can be mixed up with water
`or juice (fresh vegetable juice is preferred), or made into
`a fruit smoothie with added flax oil for additional intestinal
`
`nutrition. Fresh or lightly steamed vegetables and fresh
`fruit can be eaten if you are hungry between servings of
`RevitalXT"".
`
`Seven Day Intestinal Rest and Rejuvenation program
`(R&R Week!)
`If you have ongoing gastrointestinal health problems
`related to leaky gut syndrome, food allergies or
`intolerances, you may find great benefit from a seven day
`intestinal rest and rejuvenation program using Revita|XT"".
`
`RevitalX is taken twice per day as the primary source of
`sustenance, made up with water orjuice (fresh vegetable
`juice is preferred), or it can be made up as a fruit
`smoothie with added flax oil for additional intestinal
`nutrition.
`
`Fresh or steamed vegetables and small amounts of fruit
`can be eaten when hungry and one simple meal is
`prepared in the evening with steamed vegetables, lean
`chicken breast and brown rice (cooked beans, split peas
`or lentils along with brown rice can be used as a
`vegetarian alternative). A lightly sautéed stir fry can also
`be prepared for this meal. This food can be seasoned
`with natural herbs and small amounts of flax oil.
`
`http://www.Canadian-wholesale-direct.corn/GA24OO.html
`
`9/26/2003
`
`

`
`
`
`CWD Health Shoppe
`
`Page 3 of 4
`
`The seven day intestinal rest and rejuvenation program
`can be repeated whenever decreased vitality, poor
`digestion, or increased intolerance of foods begins to
`occur.
`
`Daily Maintenance.
`
`Many people with a leaky gut or other gastrointestinal
`problems will have a relatively sensitive digestive tract for
`life. These people have to be kind to their GI tract. This
`includes:
`
`. eating a wholesome, natural diet
`. avoiding junk foods, fast foods, deep fried,
`overcooked, over processed and most canned
`foods.
`
`. avoid all products containing hydrogenated
`vegetable oils
`. reduce amounts of fat, sugar or starches in the diet.
`. replace coffee, sugary soft drinks and fruit juices
`with water and green tea or herbal tea
`0 stop skipping meals, eating more than a small
`snack within 3 hours before bed or overeating
`0 try to avoid gut damaging substances such as anti-
`inflammatory drugs, antibiotics, and more than small
`amounts of alcohol
`
`. avoid any foods identified through the elimination
`test diet described in the book "|s Your Child's Brain
`
`Starving" by Dr. Michael Lyon, MD.
`
`After several months of good health, a person may elect
`to carefully try small portions of the previously offending
`foods again. In many cases, once the leaky gut has been
`well healed for several months, hypersensitivities
`diminish and the previously offending food can be eaten
`occasionally in small quantities without difficulty.
`
`it is highly recommended that you continue on a
`maintenance dose of RevitalXT"" as most people benefit
`from one or two servings per day. This provides the
`sensitive gut with important supportive nutrients for
`optimum long term gastrointestinal health.
`
`Many people with serious gastrointestinal disorders such
`as Crohn's disease, ulcerative colitis, or celiac disease
`should find RevitalXT“' a well tolerated and convenient
`
`meal replacement. They can use it to obtain potent
`
`http://www.Canadian-wholesale-direct.com/GA240O.htm1
`
`9/26/2003
`
`

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`CWD Health Shoppe
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`Page 4 of 4
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`nutritional supplementation while avoiding gastrointestinal
`disturbances. Those with diminished appetite or
`extensive food intolerances can use Revita|X”" to boost
`
`
`
`their nutrition while soothing their gastrointestinal tract.
`
`Natural Factors Web site ether.
`
`Ingredient list not available at this time. It is not on the
`
`
`
`
`
`
`|
`
`05/10/03
`
`
`
`This information is intended for educational and informational purposes only.
`Please see a qualified healthcare professional if you have questions about your healtl
`
`http1//www.canadian-wholesale-direct.com/GA2400.htm1
`
`9/26/2003
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`PETITION FOR CANCELLATION
`
`Cancellation No.
`
`Registration No. 2,757,576
`
`Date of Issue: August 26, 2003
`
`) ) ) ) ) ) ) ) ) ) )
`
`PTS LABS LLC,
`
`Petitioner,
`
`v.
`
`NF DISTRIBUTION CANADA LTD., /
`
`Registrant
`
`TRANSMITTAL LETTER
`
`Commissioner for Trademarks
`
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`In regard to the above identified application:
`
`1. We are transmitting herewith the attached:
`
`09-29-2003
`U.S. Patient & TMOfc/TM Mail Rcpt Dt. #11
`
`a. Petition for Cancellation Pursuant to 37 CFR. § 2.111, and duplicate copy thereof
`b. Filing Check
`C. Return Receipt Postcard.
`
`2.
`
`With respect to additional fees:
`
`A. No additional fee is required.
`
`x
`
`B. Attached is a check in the amount of $300.00.
`
`3.
`
`4.
`
`Please charge any additional fees or credit overpayment to Deposit Account No. 13-2490. A
`duplicate copy of this sheet is enclosed.
`
`CERTIFICATE OF MAILING UNDER 37 CFR § 1.8: The undersigned hereby certifies that this
`Transmittal Letter and the paper, as described in paragraph 1 hereinabove, are being deposited with
`the United States Postal Service with sufficient postage as Express Mail (EV33478l573US), in an
`envelope addressed to: Commissioner for Trademarks, 2900 Crystal Drive, Arlington, Virginia
`22202-3513 on September 26, 2003.
`
`Date: September 26, 2003
`
`MCDONNELL BOEHNEN, HULBERT & BERGHOFF
`300 SOUTH WACKER DRIVE, SUITE 3200
`CHICAGO, ILLINOIS 60606
`TELEPHONE: (312)913-0001
`FACSIMILE: (312) 913-0002
`
`By :