Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA217544
`ESTTA Tracking number:
`06/12/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`Petition for Cancellation
`
`Notice is hereby given that the following party requests to cancel indicated registration.
`Petitioner Information
`
`Name
`Entity
`Address
`
`CytoSport, Inc.
`Corporation
`4795 Industrial Way
`Benicia, CA 94510
`UNITED STATES
`
`Citizenship
`
`California
`
`Attorney
`information
`
`Peter M. de Jonge
`Thorpe North and Western, LLP
`P. O. Box 1219
`Sandy, UT 84091-1219
`UNITED STATES
`dejonge@tnw.com, hansen@tnw.com, howlett@tnw.com, docket@tnw.com
`Phone:801-566-6633
`Registration Subject to Cancellation
`
`Registration No
`Registrant
`
`3121197
`Lose The Carbs, Inc.
`318 Sawmill Lane
`Wyckoff, NJ 07481
`UNITED STATES
`Goods/Services Subject to Cancellation
`
`Registration date
`
`07/25/2006
`
`Class 005. First Use: 2004/06/00 First Use In Commerce: 2004/06/00
`All goods and services in the class are cancelled, namely: Meal replacement drinks
`
`Grounds for Cancellation
`
`Priority and likelihood of confusion
`
`Trademark Act section 2(d)
`
`Mark Cited by Petitioner as Basis for Cancellation
`
`U.S. Application/
`Registration No.
`Registration Date
`Word Mark
`Goods/Services
`
`NONE
`
`Application Date
`
`NONE
`
`NONE
`PREFORMANCE
`Powdered Meal Replacement
`
`Attachments
`
`32796Cancel.PDF ( 23 pages )(466943 bytes )
`
`
`ESTTA217544
`ESTTA Tracking number:
`06/12/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`Petition for Cancellation
`
`Notice is hereby given that the following party requests to cancel indicated registration.
`Petitioner Information
`
`Name
`Entity
`Address
`
`CytoSport, Inc.
`Corporation
`4795 Industrial Way
`Benicia, CA 94510
`UNITED STATES
`
`Citizenship
`
`California
`
`Attorney
`information
`
`Peter M. de Jonge
`Thorpe North and Western, LLP
`P. O. Box 1219
`Sandy, UT 84091-1219
`UNITED STATES
`dejonge@tnw.com, hansen@tnw.com, howlett@tnw.com, docket@tnw.com
`Phone:801-566-6633
`Registration Subject to Cancellation
`
`Registration No
`Registrant
`
`3121197
`Lose The Carbs, Inc.
`318 Sawmill Lane
`Wyckoff, NJ 07481
`UNITED STATES
`Goods/Services Subject to Cancellation
`
`Registration date
`
`07/25/2006
`
`Class 005. First Use: 2004/06/00 First Use In Commerce: 2004/06/00
`All goods and services in the class are cancelled, namely: Meal replacement drinks
`
`Grounds for Cancellation
`
`Priority and likelihood of confusion
`
`Trademark Act section 2(d)
`
`Mark Cited by Petitioner as Basis for Cancellation
`
`U.S. Application/
`Registration No.
`Registration Date
`Word Mark
`Goods/Services
`
`NONE
`
`Application Date
`
`NONE
`
`NONE
`PREFORMANCE
`Powdered Meal Replacement
`
`Attachments
`
`32796Cancel.PDF ( 23 pages )(466943 bytes )
`
`
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`
`Certificate of Service
`
`Signature
`Name
`Date
`
`/petermdejonge/
`Peter M. de Jonge
`06/12/2008
`
`
`
`
`
`TRADEMARK
`DOCKET NO. 01098-32796
`
`Peter M. de Jonge
`Jed H. Hansen
`
`THORPE NORTH & WESTERN, LLP
`
`8180 South 700 East, Suite 350
`Sandy, Utah 84070
`Telephone: (801) 566-6633
`Facsimile: (801)566-0750
`
`Attorneys for Cytosport, Inc.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`LOSE THE CARBS, INC.,
`
`
`
`Registrant.
`
`
`PETITION TO CANCEL
`
`Petitioner CytoSport, Inc. (“Petitioner”), a corporation duly organized and existing
`
`under the laws of the state of California and having its principal place of business at 4795
`
`Industrial Way, Benicia, CA 94510 believes it will be damaged by continued registration of
`
`U.S. Trademark Registration No. 3,121,197 purportedly owned by Registrant, Lose the Carbs,
`
`Inc. (hereinafter “Registrant”) a corporation organized and existing under the laws of the State
`
`of New Jersey.
`
`CYTOSPORT, INC.,
`
`Petitioner
`
`V.
`
`Cancellation No.
`
`Registration No. 3,121,197
`
`
`
`
`
`Petitioner alleges as follows:
`
`1.
`
`Petitioner is in the business of manufacturing and marketing various nutritional and
`
`dietary supplement products. Among the products offered by Petitioner is a powdered meal
`
`replacement product for mixing with beverages that is sold in connection with the trademark
`
`PRE-FORMANCE.
`
`2.
`
`The PRE-FORMANCE products have been very successful products with sales
`
`growing significantly since introduction. As such, PRE-FORMANCE has significant common
`
`law rights associated with the mark PRE-FORMANCE throughout the United States.
`
`3.
`
`Petitioner has been using the PRE-FORMANCE trademark in connection with its
`
`powdered meal replacement products since at least as early as December 10, 2000. See Hansen
`
`declaration attached hereto as Exhibit A.
`
`4.
`
`On or about February 29, 2008, Petitioner received a cease and desist letter from
`
`Registrant with respect to U.S. Trademark Registration No. 3,121,197 (hereinafter “the ‘ 197
`
`registration”) which is purportedly owned by Registrant. A copy of the cease and desist letter
`
`as well as the ‘ 197 registration are attached hereto as Exhibit B.
`
`5.
`
`In its letter to Petitioner, Registrant alleges that Petitioner’s use of the mark PRE-
`
`FORMANCE in connection with its products is not only likely to result in confusion by the
`
`relevant consuming public, but that confusion would be inevitable.
`
`6.
`
`Petitioner has continuously used in commerce its name and mark PRE-
`
`FORMANCE in connection with its powdered meal replacement product prior to the filing date
`
`of the ‘197 registration and prior to any purported date of first use by Registrant. See Hansen
`
`declaration attached hereto as Exhibit A.
`
`
`
`
`
`7.
`
`Accordingly, Petitioner has superior rights in and to the name and mark PRE-
`
`FORMANCE in connection with its powdered meal replacement product.
`
`8.
`
`Upon information and belief, and as admitted by Registrant, the products identified
`
`in the ‘ 197 registration are related or are virtually identical to those offered by Petitioner in
`
`connection with its name and mark PRE-FORMANCE.
`
`9.
`
`Upon information and belief, and as admitted by Registrant, the products that are
`
`identified in the ‘197 registration will be encountered by the same or similar class of purchasers
`
`who are familiar with and interested in the products offered by Petitioner in connection with its
`
`name and mark PRE-FORMANCE. Additionally, upon information and belief, the channels of
`
`trade for the respective products overlap.
`
`10.
`
`Upon information and belief, and as admitted by Registrant, the ‘I97 registration so
`
`resembles Petitioner’s previously used name and mark PRE—FORMANCE as to be likely to
`
`cause confusion, mistake, or deception. Consumers are likely to believe that there is a
`
`connection between Petitioner’s and Registrant’s goods and are likely to be confused, mistaken,
`
`and deceived into believing that the goods of Registrant are provide sponsored, licensed, or
`
`approved by Petitioner or believe that Petitioner and Registrant’s respective goods emanate
`
`from the same source; and/or that Petitioner is in some other fashion connected or associated
`
`with Registrant when it is not, thereby creating damage to Petitioner within the meaning of 15
`
`U.S.C § 1064.
`
`1 1.
`
`Upon information and belief, for the foregoing reasons, the contemporaneous use
`
`and continued registration by Registrant of the ‘197 registration is likely to cause consumer
`
`confusion, mistake and deception under 15 U.S.C. § l052(d) and 15 U.S.C. § 1125(a).
`
`
`
`
`
`12.
`
`Upon information and belief, Petitioner will be damaged by the continued
`
`registration of the ‘ 1 97 registration, wherein said registration supports and assists Registrant in
`
`the confusing, misleading, and/or deceptive use of Registrant’s mark which is the subject of
`
`this Cancellation, and would give color of exclusive statutory rights to Registrant in violation
`
`and degradation of Petitioner’s prior rights. Therefore, continued registration of the ‘ 197
`
`registration is damaging to Petitioner’s common law rights in and to its name and mark PRE-
`
`
`
`Submitted,
`
` . de Jonge
`Jed H. Hansen
`
`THORPE NORTH & WESTERN
`
`Attorneys for CytoSport, Inc.
`
`FORMANCE.
`
`DATED: June
`
`, 2008.
`
`
`
`
`
`EXHIBIT A
`
`
`
`
`
`TRADEMARK
`DOCKET NO. 01098-32796
`
`Peter M. de Jonge
`Jed H. Hansen
`
`THORPE NORTH & WESTERN, LLP
`8180 South 700 East, Suite 350
`Sandy, Utah 84070
`Telephone: (801) 566-6633
`Facsimile: (801) 566-0750
`
`Attorneys for Cytosport, Inc.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
` CYTOSPORT, INC.,
`
`DECLARATION OF JED H.
`
`HANSEN
`
`Cancellation No.
`
`
`
`Petitioner
`
`V.
`
`LOSE THE CARBS, INC.,
`
`
`Registration No. 3,121,197
`Registrant.
`
`
`1.
`
`I, Jed H. Hansen, declare under penalty of perjury that these statements are true and correct
`
`to the best of my knowledge, and if called upon to testify, would testify accordingly.
`
`2.
`
`I am above the age of twenty-one years, have never been convicted of a felony or crime of
`
`moral turpitude, and am fully competent to make this Declaration.
`
`3.
`
`I am counsel of record for Petitioner, CytoSport Inc., for the above-captioned matter.
`
`4. On June 9, 2008, pursuant to instructions from Petitioner, I accessed the web archive portal
`
`at www.webarchive.org and searched for Petitioner’s website www.cytosport.com.
`
`
`
`
`
`5. Information contained on webarchiveorg shows that Petitioner advertised for sale its
`
`powdered meal replacement product using the name and mark PRE-FORMANCE at least as
`
`early as December 10, 2000. A true and correct copy of printouts from webarchive.org
`
`showing said uses are attached hereto.
`
`6. Upon information and belief, the date of first use of the PREFORMANCE designation by
`
`Registrant, Lose the Carbs, Inc., is June 6, 2004.
`
`7. Accordingly, Petitioner’s use of PRE-FORMANCE in connection with its meal replacement
`
`products is prior to Registrant’s use of the PREFORMANCE mark.
`
`DATED: June jg, 2008.
`
`
`
`
`pi WC .arc 1ve.orgwe
`
`
`
`
`Cytosport, Inc. is the
`manufacturer of
`club cyto
`faq
`
`_ premium quality
`performance nutrition
`supplements for athletes
`of alt sports and fitness
`levels.
`
`
`
`training tips
`
`weight loss
`whafis new
`
`I Sign Me U9 For
`
`Email Ugdates!
`
`o How Cytosgort
`Supplements Wili
`Improve Your
`Performance
`
`lof2
`
`6f9f2008 12:00 PM
`
`
`
`
`
`Home Page | Back Button
`
`{About Cgto | Ask The Experts | Club Cyto | Cyto Athletes 1 Cflo Science i
`Freguentiy Asked Questions | Order | Product Info | Success Stories | Training
`figs | Weight Loss | What's New|
`
`ggsg-2?
`/N
`
`Dn'ven By Science, Inspired By Perfonnance
`
`Phone: 1-888-CYTOMAX (298-8829) - Fax (925) 609-1543 — E-mail
`1910 Mark Ct. #130 - Concord, CA - 94520
`
`2 of2
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`
`
` CYTOSPORT PRODUCTS
`
`about
`
`Gytosport
`ask the
`
`experts
`
`Cyto athletes
`
`
`
`club Cyto
`
`fail
`order
`
`
`product info
`Cyto science
`
`success
`
`stories
`training tips
`
`weight loss
`what‘s new
`
`0 Cflomax
`0 Cflo Gainer
`0 Cflomax Pre-Formance
`I
`_\go§]:_)ort 100% Creatine
`0 Complete Whey Protein
`0 Joint Matrix
`
`0 MusclEnergy
`0 Muscle Milk
`
`0 3 Andre XI
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ote: The product statements on this web site and on CytoSport
`' roduct labels have not been evaluated by the Food and Drug
`Administration. CytoSport products are meant to supplement a healthy
`1
`;,,,- diet and are not intended to treat, cure or prevent any disease.
`
`
`
`
`.;y,:
`
`
`’_.€ Cytomax is the world's most scientifically advanced
`complex carbohydrate, electrolyte performance energy -' 5'
`
`
`
`
`drink. Ensures proper hydration, steady energy and
`'" A
`educed fatigue during exercise.
`
`
`
`?‘J:- Susan-nun‘
`-"‘.¢3.;.._'.:. —-nu‘
`
`
`Benefits of using Cytomax:
` 0 Beats The Bur-nTM: Cytomax's patented alpha L-PolylactateTM
`
`buffers lactic acid production in your muscles, reducing the
`
`"burn" during intense training and minimizing post-exercise
`muscle soreness.
`
`
`
` 0 Steady Energy: Complex carbs stabilize blood sugar during
`exercise - no sugar crash
`
`
`
`0 Cell Protection: antioxidants prevent exercise-induced free
`radical damage to muscle cells
`
`0 Oxygen Delivery: succinates enhance oxygen delivery by up to
`
`
`
`lof9
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`6/9/2008 11:59 AM
`
`
`
`
`
`1 1% during exercise, reducing perceived exertion and
`minimizing muscle damage
`
`I Cellular Balance: Electrolytes ensure cellular nutrient balance is
`restored quickly after exercise
`
`I Low Osmoality: ensures fluid reaches your muscles quickly - as
`fast as water!
`
`I Natural Herbal "Lift": (in Tangy Orange, Go Grape and
`Peachy Keen flavors only) reduces your perceived effort so you
`can push harder
`
`Best ways to use Cytomax:
`
`I Before/During: Mix 1-1 1/2 scoops of Cytomax per 16 ounces
`of water to ensure a proper carbohydrate solution. Drink about 15
`minutes before training and consistently during your workout. To
`ensure proper hydration, drink 32 ounces per hour of exercise.
`
`I After: Drink a post-workout bottle for recovery and rehydration.
`
`lement Facts/In redient Statement
`
`Su
`
`CYTO GAIN ER
`
`Cyto Gainer is a calorically dense, easy-to—digest lean
`muscle maximizing formula.
`
`Benefits of using Cyto Gainer:
`
`Combined with a serious strength training regimen
`and a sensible, healthy diet, you will notice immediate 1'
`gains in muscle mass and bodyweight when
`"i
`supplementing with Cyto Gainer.
`
`
`
`
`
`I Efficient: Cyto Gainer is almost entirely complex carbs and ultra
`high quality whey protein. The protein is glutamine~rich, partially
`pre-digested whey peptides for easy digestibility - it gets into
`your muscles fast. Carbs are complex maltodextrins from corn
`hybrids ~ stabilizes energy and prevents sugar crash.
`
`I Growth: Promotes an anabolic environment in your body - no
`more muscle catabolism due to lack of calories
`
`I Digestibility: Allows massive caloric intake without the
`digestive distress and extra fat of solid meals
`
`I Convenience: Mixes instantly in water so you can ingest calories
`immediately after training. No blender required.
`
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`
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`Best ways to use Cyto Gainer:
`
`0 Before: Drink 45 minutes to 1 hour before your workout. You
`will notice higher energy levels, especially at the end of your
`workout.
`
`0 After: Your muscles absorb 80% of the amino acids and carbs
`
`necessary for repair and growth within 30-45 minutes after your
`workout.
`
`I Evening: helps muscles rejuvenate overnight for faster recovery
`between intense workouts
`
`Su
`
`lementFacts/In redient Statement
`
`CYTOMAX PRE-FORMANCE j
`
`
`
`..
`
`
`onrmmc
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`
`
`Cytomax Pre-Formance is the most advanced
`re—workout, high-performance, easy-to-digest meal P
`replacement ever developed. Contains an ideal
`blend of nutrients and performance-enhancing
`
`Benefits of using Cytomax Pre—Formance:
`
`
`
`ow you can consume a balanced meal with the
`nutrients you need for peak performance without
`suffering from the digestive distress that comes when you eat solid food
`and then exercise.
`
`0 Sustained Energy: Easy to digest and packed with the nutrients
`you need for sustained energy: low—glycemic complex carbs,
`highly digestible whey protein. No junk calories to bloat you up
`or slow you down (less than 2% sugar and fat)
`
`I Reduces Perceived Exertion: Proprietary neurotransmitter
`complex improves focus and concentration levels
`
`0 Protection: Antioxidants fight exercise-induced free radical
`damage
`
`0 Weight Managementzlmproves metabolic response to exercise
`by preventing caloric depletion known as the "bonk".
`
`0 Peformance: Succinates improve oxygen delivery, AKG
`improves aerobic energy metabolism, CoQl0 improves heart
`function, creatine protects muscle cells, alpha L-Polylactate
`buffers lactic acid production.
`
`3 of9
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`
`0 Reduces Exercise Stress: Less muscle breakdown, cellular
`
`nutrient depletion and stress hormone production. Train harder
`
`more often!
`
`Best ways to use Cytomax Pre-Formance:
`
`I Morning/Before workouts: Drink 30 minutes — 2 hours before
`to enhance performance, prevent bonking and regulate your
`metabolism for hours.
`
`0 After:Consume during the "Window of Opportunity" to begin
`the recovery process immediately.
`
`0 Meal on the go:When eating a meal is not convenient, such as
`when traveling or during a hectic workday, Cytornax
`Pre~Formance is a nutritious alternative to junk food or going
`hungry.
`
`1ementFacts/In redient Statement
`
`Su
`
`The most immediate energy source your muscle uses
`for a powerful energy burst is ATP (adenosine triphosphate). The
`fast-acting ATP energy cycle is fueled by creatine. Having an abundant
`supply of creatine in your muscles gives you an energy reserve to
`regenerate ATP quickly, leading to these benefits:
`
`0 Performance: Enhanced ATP energy cycle improves
`performance in strength, power and speed sports.
`
`0 Protection:Prevents muscle fiber damage by strengthening cell
`membranes
`
`I Acid Buffering: ATP regeneration prevents muscle burn
`
`0 Recoverydmproves recovery time by protecting muscle cell
`walls from damage caused by hard training
`
`Best ways to use CytoSport 100% Creatine:
`
`0 Loading: Take one scoop (five grams) of 100% Creatine mixed
`into eight ounces of water or your favorite fruit juice for better
`absorption. Use four to five times daily for five days.
`
`4of9
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`
`
`CYTOSPORT 100% CREATINE
`
`CytoSport Creatine is 100% pure, pharmaceutical
`grade creatine monohydrate, imported from Germany.
`
`Benefits of using CytoSport 100% Creatine:
`
`
`
`
`
`
`
`Protein is manufactured with low heat processing to
`reserve nutrient potency and utilizes a new solubility
`echnology (InstaPro Instantizing ProcessTM:) to mix I
`instantly with just a few stirs - no blender required.
`
`_‘
`
`_
`
`Benefits of using Complete Whey Protein:
`
`A single, easy to digest serving of Complete Whey Protein provides
`high levels of all nine essential amino acids, making it a "complete"
`rotein source. Whey protein also has antioxidant and immune system
`supporting properties. Now you can enjoy all the benefits of high
`rotein foods like meat, fish, eggs and milk, but without all the calories
`and fat.
`
`0 Regulated Energy: Blood sugar levels are stabilized naturally
`
`0 Reduced Body Fat: Stored body fat is mobilized (by promoting
`favorable insulin levels) to become a preferred source of
`sustained energy
`
`I Muscle Repair:Easy to digest amino acids minimize tissue
`breakdown and speed recovery from exercise
`
`0 Improved Health:Adequate protein consumption promotes
`healthy hormone production, immune system function, water
`balance, and maintenance of skin, hair and nails
`
`Best ways to use Complete Whey Protein:
`
`0 Morning:In conjunction with a high-carbohydrate meal to
`regulate energy levels
`
`0 After workouts: Drink within one hour after exercise when
`
`muscles are most receptive to replenishment
`
`0 Afternoon: Between-meal drink provides a quick energy pickup
`
`0 Evening:Help muscles rejuvenate overnite from a stressful day.
`
`Su
`
`lement Facts
`
`5of9
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`cytosport.co
`
`pro ucts...
`
`I Maintenance:Take one scoop 30 minutes — one hour before
`workout. Take an additional dose one hour after your workout.
`
`Label Co
`
`
`
`
`
`
`COMPLETE WHEY PROTEIN
`
`
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`
`JOINT MATRIX
`
`Benefits of using Joint Matrix:
`
`.
`
`.4 -.«-=.
`
`'
`
`-
`
`Supplementing with glucosamine, a component of
`our connective tissue, helps strengthen injured joints, ‘ I
`helps injuries heal faster, clears up nagging problem areas that have
`been troubling for years, and may prevent future injuries from occuring.
`
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`
`Joint Matrix is a glucosamine/chondroitin formula,
`contains a multi-pathway formulation ofjoint
`protection agents that help protect and rebuild injured i
`cartilage and connective tissue.
`
`0 Pain Relief: Natural anti—inflammatories (curcumin, willow,
`omega oils, deer antler) provide immediate pain relief from
`aching joints.
`
`0 Regeneration: Triple-Glucosamine formula helps cartilage
`regenerate in areas where it is most needed in your body
`
`0 Protection: Chondroitin sulfate inhibits enzymes that break
`cartilage down. Supporting ingredients (acetyl-cysteine, ascorbic
`acid, B-vitamins, minerals) help fight free—radical damage and
`encourage growth and restructure of connective tissue
`
`0 Lubrication: Glucosamine and supporting ingredients improve
`joint lubrication for greater flexibility and mobility
`
`0 Prevention: Bromelain helps dissolve damaged connective
`tissue to prevent future problems
`
`Best ways to use Joint Matrix:
`
`Loading: Engaging in an initial loading phase (4 capsules, 2x/day
`for 2 weeks) helps saturate your joints and connective tissue with
`ingredients that support healing and prevent injury.
`
`Pain Relief: For acute pain and relief from inflammation, take four
`capsules twice a day. Joint Matrix will provide relief without the
`harmful side effects of prescription anti-inflammatories
`
`Label Co
`
`
`
`anti-catabolic, perforrnance-enhancing agents
`
`MusclEnergy is a scientifically advanced blend of
`
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`‘I
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`II
`
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`""0 we.arc lV€.0l‘ we I” I‘
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`-H ospo .co prouc 5...
`
`(including D-ribose) - high performance energy fuel
`for your muscles!
`
`Benefits of using MusclEnergy:
`
`I Replenishment: Over 150 studies demonstrate
`the amazing benefits of D-ribose to quickly
`replenish depleted ATP energy stores, leading
`to rapid recovery and muscle rejuvenation.
`
`
`
`
`
`0 Lactic acid buffering: Patented alpha L-PolylactateTM reduces
`cramping and burning in muscles during intense exercise and
`reduces post-exercise soreness by lowering blood lactate levels
`up to 40%.
`
`0 Reduced Stress: Phosphatidlyserine minimizes the stress of
`exercise by lowering blood levels of cortisol during and after
`workouts. (Cortisol is a toxic stress hormone that breaks down
`
`muscle tissue and inhibits recovery).
`
`0 Protection: Arrests breakdown and preserves tissue with
`glutamine, branched—chain amino acids, MSM and white willow
`bark.
`
`0 Efficiency: Succinates and alpha L-Polylactate help you use 11%
`less oxygen at the same exercise intensity - raises your threshold
`race pace
`
`Best ways to use MusciEnergy:
`
`I Before: Take one capsule for every 35-40 pounds of body weight
`30- 45 minutes before exercise. It is best to take this product in
`conjunction with Cytomax or Cytomax Pre-Formance.
`
`0 After: Repeat dosage after competitions or stressful workouts to
`speed recovery and protect against muscle damage.
`
`favorable ingredients stimulate growth and recovery
`
`romoting efficient fat burning, lean muscle growth
`and fast recovery from exercise. Metabolically
`
`7of9
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`6/9/2008 11:59 AM
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`
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`
`in a similar manner to mother's milk nourishing a
`baby
`
`A‘ 1
`'.'f‘.‘;‘.‘.!""’ *
`
`Benefits of using Muscle Milk:
`
`0 Creatine Production: Patent-pending, medically proven
`EndoCreatineTM gives you maximum benefits of Creatine
`loading and storage by increasing your body's natural production
`of Creatine.
`
`0 Efficient Energy Production: Lean LipidsTM are special fats
`that are easily mobilized for workout energy, enhance your
`body's fat metabolism and promote protein synthesis,
`anti-imflammatory effects and mineral retention.
`
`I Muscle Growth and Repair: EvoProTM is a complex ratio of
`proteins, peptides and amino acids designed to replicate the
`amazing benefits of mothers milk for rapid tissue growth and
`repair.
`
`Best ways to use Muscle Milk:
`
`0 Before: Drink 30 minutes —9two hours before your workout as
`you would a performance shake or smoothie
`
`0 During: Drink together with Cytomax to flood the body with
`growth nutrients and acid-buffering agents
`
`0 After: Drink within one-hour after workouts to encourage
`muscle synthesis during periods normally marked by breakdown
`
`0 Evening: One serving before bed helps make your sleep time
`more anabolic
`
`
`
`3 Andre X1 is a comprehensive androstenedione
`formula that Safely boosts your body's natural
`production of testosterone without harmful side
`effects.
`
`I Performance: Elevated testosterone levels lead
`
`Benefits of using 3 Andro XI:
`
`8of9
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`6/9/2008 11:59 AM
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`
`
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`
`‘In -‘
`
`-
`
`I
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`‘II ospo .co proucs...
`
`to better endurance, more muscle strength, faster
`recovery rate and enhanced fat burning
`
`A
`
`I
`
`I Effectiveness: Provides all known testosterone precursors in its
`exclusive Triple-Andro FormulaTM, considered 32-: as effective
`as straight androstenedione
`
`I Protection: Supporting ingredients (chrysin, phosphatidlyserine,
`tribulus, DHEA, saw palmetto) inhibit conversion of
`androstenedione to estrogen, reduce testosterone breakdown and
`minimize muscle catabolism during exercise
`
`Best ways to use 3 Andre) XI:
`
`Before: Take two capsules one hour before workout to improve
`Ower and endurance
`
`
`
`Label Co
`
`Home Page | Back Button
`
`|About Cflo | Ask The Experts | Club Cyto | Cfio Athletes | Cyto Science | Freguently Asked
`Questions | Order | Product Info | Success Stories | Training Tips | Weight Loss | What's New]
`
`Driven By Science, Inspired By Performance
`
`Phone: 1-888-CYTOMAX (298-6629) - Fax (925) 609-1543 - E-mail
`1910 Mark Ct. #130 - Concord, CA - 94520
`
`9 of9
`
`6/9/2008 11:59 AM
`
`
`
`EXHIBIT B
`
`
`
`
`I
`PATENT.‘-TIIADEMAFIK. COPYRIGHT
`um RELAIIZD CAUSES
`
`FAX: I203) 32943729
`
`MARK P.STONE
`ATTORNEY AT LAW
`
`as 1'Hnno»sTn::1'
`am noon
`snmrono. con-mecncur ooaos
`TEL: (2033 329-3355
`
`February 29, 2008
`
`VIA FAX
`_
`courrgngrxog copy av MAIL
`
`Cytosport, Inc.
`4795 Industrial Way
`Benicia, CA 94510
`
`Attn: Legal Counsel
`
`Re: U.S. Trademark Reg. No. 3,121,197 - "PRE-FORMANCE"
`File NO. Q02-181-;
`
`Dear Sir:
`
`a New Jersey Corporation,
`I represent Lose The Carbs, Inc.,
`in connection with its intellectual property matters.
`
`Enclosed for your convenience is a copy of U.S. Trademark
`Reg. No. 3,121,197,
`issued July 25, 2006.
`
`trademark for
`registration covers the "PRE-FORMANCE”
`The
`replacement drinks".
`The
`registration remains
`in full
`"meal
`force and effect.
`
`It has come to my client's attention that your company is
`using the designation "Pre-Formance"
`in connection with "meal
`replacements".
`Your
`company's
`current website
`uses
`this
`designation together with the designation "cytomax", or uses the
`designation
`"Pre—Formance"
`alone.
`Moreover,
`use
`of
`the
`designation
`"Pre—Formance"
`is
`consistently followed
`by
`the
`informal trademark designation "TM".
`
`to
`Use by your company of a designation which is identical
`my client's registered trademark for identical goods is not only
`likely to result
`in confusion by the relevant consuming public,
`but confusion appears to be inevitable. Your company's continued
`use of
`the designation "Pre-Formanoe" in connection with "meal
`replacements"
`constitutes
`both
`infringement
`of my client's
`
`
`
`
`
`registered trademark,
`and state law.
`
`and unfair competition under both federal
`
`I request that
`on behalf of my client, Lose The Carbs, Inc.,
`use
`of
`the
`Cytosport,
`Inc.
`immediately
`cease
`and desist
`designation "Pre—Formance" and any colorable imitations thereof
`in connection with "meal
`replacements"
`and any other
`related
`goods.
`
`I am hopeful that this matter can be resolved amicably,
`request that I receive your response within ten (10) days of
`date of this letter.
`
`and
`the
`
`Very truly yours,
`
`/175"-./ii
`
`L./;f_'-h .
`/1.,/('37 "*5
`
`Mark P. Stone
`
`MPS:dm
`Encl.
`
`cc: Lose The Carbs,
`
`Inc.
`
`
`
`
`
`Int. Cl.: 5
`
`Prior US. 05.: 6, 18, 44, 46, 51, and 52
`Reg. No. 3,121,197
`_
`
`Umted States Patent and Trademark Office Registered July 25, 2006
`
`TRADEMARK
`
`PRINCIPAL REGISTER
`
`PRE-FORMANCE
`
`LOSE THE CARBS,
`PORATION)
`318 SAWMILL LANE
`WYCKOFF‘, NJ 01431
`
`INC.
`
`(NEW JERSEY COR-
`
`THE MARK CONSISTS OF STANDARD CHAR-
`ACTERS WITHOUT CLAIM TO ANY PARTICULAR
`FONT, STYLE, SIZE, OR COLOR.
`
`FOR: MEAL REPLACEMENT DRINKS, IN CLASS
`5 (U.S. CLS. 6, 18, 44, 46, 51 AND 52).
`
`SN 76-573,961, FILED 2-2-2004.
`
`FIRST USE 6-0-2004; IN COMMERCE 6-0-2004.
`
`I-ANA PHAM, EXAMINING ATTORNEY
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the foregoing PETITION TO
`
`CANCEL was served upon Registrant by the method(s) indicated:
`
`__ Hand Delivery
`__K_ United States Mail
`First Class, Postage Pre-Paid
`__ Overnight Delivery
`Electronic Mail
`Fax Transmission
`
`Mark P. Stone
`25 Third Street, 4”‘ Floor
`Stamford, CT 06905
`
`on this 12th day of June, 2008.
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