TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Dante Peter Spano,
`
`an individual’
`Petitioner,
`
`V
`
`/
`.
`/73/A 547a, 0 Us
`Registration No.: 3,146,505
`
`For the mark: NITRO ENERGY DRINK
`
`Date Registered: September 19, 2006
`
`Blue Beverages Envasadora Ltd.,
`
`Cancellation No.: 92/050127
`
`a Brazilian Limited Corporation
`
`Respondent.
`
`
`UNITED STATES PATENT AND
`TRADEMARK TRIAL AND APPEAL BOARD
`PO BOX 1451
`
`ALEXANDRIA VA 22313-1451
`
`RESPONDENT’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
`
`A Movent can only be successful in a Motion for Summary Judgment in a
`
`proceeding before the Trademark Trial and Appeal Board if there is “no genuine issue as
`
`to any material fact and that the moving party is entitled to judgment as a matter of law”
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`which is not the case in this Opposition. There are still numerous issues of law and
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`material facts, and the known facts favor a summary judgment for the Respondent not the
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`Petitioner.
`
`In a motion for summary judgment, the moving party has the burden of
`
`establishing the absence of any genuine issues of material fact and that it is entitled to
`
`1
`
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`07-U6- 009
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`_ s Patant
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`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Dante Peter Spano,
`
`an individual’
`Petitioner,
`
`V
`
`/
`.
`/73/A 547a, 0 Us
`Registration No.: 3,146,505
`
`For the mark: NITRO ENERGY DRINK
`
`Date Registered: September 19, 2006
`
`Blue Beverages Envasadora Ltd.,
`
`Cancellation No.: 92/050127
`
`a Brazilian Limited Corporation
`
`Respondent.
`
`
`UNITED STATES PATENT AND
`TRADEMARK TRIAL AND APPEAL BOARD
`PO BOX 1451
`
`ALEXANDRIA VA 22313-1451
`
`RESPONDENT’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
`
`A Movent can only be successful in a Motion for Summary Judgment in a
`
`proceeding before the Trademark Trial and Appeal Board if there is “no genuine issue as
`
`to any material fact and that the moving party is entitled to judgment as a matter of law”
`
`which is not the case in this Opposition. There are still numerous issues of law and
`
`material facts, and the known facts favor a summary judgment for the Respondent not the
`
`Petitioner.
`
`In a motion for summary judgment, the moving party has the burden of
`
`establishing the absence of any genuine issues of material fact and that it is entitled to
`
`1
`
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`07-U6- 009
`
`_ s Patant
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`
`
`judgment as a matter of law. See Fed. R. Civ. P. 56(0). A genuine issue with respect to
`
`material fact exists if sufficient evidence is presented that a reasonable fact finder could
`
`decide the question in favor of the non-moving party. See Opryland USA Inc. v. Great
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`American Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992, ). Thus, all
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`doubts as to whether any factual issues are genuinely in dispute must be resolved against
`
`the moving party and all inferences must be viewed in the light most favorable to the
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`non-moving party. See Olde Tyme Foods Inc. v. Roundy's, Inc., 961 F.2d 200, 22
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`USPQ2d 1542 (Fed. Cir. 1992).
`
`Respondent filed for the mark “NITRO ENERGY DRINK” on August 23, 2004
`
`and it was published for Opposition on September 13, 2005. No one, including the
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`Petitioner, filed an Opposition to the mark. The Mark issued on September 19, 2006
`
`with a Registration Number of 3 146505, Exhibit 1. The current status of the mark is
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`valid and is in use, Exhibits 1, 2 and 3. Nitro Energy Drink was launched in Brazil in
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`March, 2001 and is still in use. The company has been exporting to South American
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`countries such as Uruguay and Paraguay from August, 2001 until the present time. From
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`2003 to 2005 Respondent started exporting to Mexico, which borders the United States.
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`In November, 2003 Respondent decided to adopt its mark NITRO ENERGY DRINK in
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`Texas, Exhibit 4, pages 5 -6. In March, 2004 Respondent started exporting to USA to
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`Miami, Florida and in April, 2004 Respondent started exporting to San Antonio, Texas.
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`Also in 2004, Respondent started exporting to the country of Chile. In 2005 Respondent
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`started to export to the USA through New York Importer World Wide Foods, and
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`continues exporting for the same importer to the current date. Also in 2006 Respondent
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`
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`started exporting to Argentina and the Dominican Republic and continues to the current
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`date.
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`The Respondent’s product has had only one 8.4 oz can design since its launch in
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`2002, Exhibit www.
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`There are numerous advantages to a federally registered trademark. First, such
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`registration gives everyone in the nation notice of your ownership, which protects you if
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`another firm later attempts to infringe on your mark. Another related benefit of federal
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`registration is the presumption of validity and ownership by virtue of holding an
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`approved federally registered mark. This presumption means that you have national
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`priority for the mark in the face of any challengers. The Respondent filed for and
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`received a valid registration for the mark “NITRO ENERGY DRINK.” The
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`Respondent’s mark “NITRO ENERGY DRINK” is currently valid and in use. Exhibit A
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`Reply to "Statement of Uncontroverted Facts"
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`There seems to be a dispute of Material Facts by the Petitioner itself. In its
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`Motion for Summary Judgment, the Petitioner claims a first use date of December 2003
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`but in Petitioner’s Response to Respondent’s Interrogatories, Exhibit 5, Page 3, a date of
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`April 24, 2004 was claimed and a date of April 19, 2004 was claimed for Class 32 on the
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`Petitioner’s Trademark Application Number 77155508 (now abandoned), its Trademark
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`Application Number 77508066 for “LIQUID HERBAL NITRO”, as well as for its filed
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`Pleadings in this matter. This in itself is a red flag on the question of the evidence and
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`facts that the Petitioner is presenting. Respondent objects to Petitioner’s claim of a first
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`use date of December 2003.
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`
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`Petitioner’s Production of Documents and Answers to Interrogatories were signed
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`by Petitioner’s Counsel and not by the Petitioner under Oath. Respondent objects to this
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`evidence as it applies to this Motion for Summary Judgment given the severity of what
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`the Petitioner is requesting, Exhibits 5 and 6.
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`The Nitro Energy Drink first website version was created in beginning of 2002
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`and anyone in the world could inquire regarding prices as well as buy per pallets and
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`containers to any place including the United States, Exhibit 3. The languages of the
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`website were English, Portuguese and Spanish. Many importers, such as Saesa Group,
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`first contacted Blue Beverages from this website. The first contact to sell Nitro Energy
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`Drink was with Saesa Group from San Antonio, Texas. The contact person was Mr. Juan
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`Miguel Mendez located at 40 NE Loop 410, suite 105 San Antonio, Texas 78216. In
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`Mexico the product started being sold in March, 2003 with Grupo Saesa de CV from
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`Guadalajra City. The company exported the product from Brasil direct to Mexico for
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`Mexican Customers and shipped the product directly to Texas and Miami for the
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`American market. Blue Beverages knew that some times Grupo Saesa from Mexico
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`shipped the product from Mexico to USA, Exhibit 3.
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`In November, 2003 Respondent
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`decided to adopt its mark NITRO ENERGY DRINK in Texas, Exhibit 4, pages 5-6, the
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`use of the websites and the sales by Grupo Saesa makes the priority date of Respondent a
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`disputed fact as well and all doubts as to whether any factual issues are genuinely in
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`dispute must be resolved against the moving party and all inferences must be viewed in
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`the light most favorable to the non-moving party. See Olde Tyme Foods Inc. V. Roundy's,
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`Inc., 961 F.2d 200, 22 USPQ2d 1542 (Fed. Cir. 1992).
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`
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`The Respondent contends that any reference by the Petitioner to the use of its
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`“LIQUID HERBAL NITRO” mark for International Class 005 for Dietary Supplements
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`for priority date is improper. The Petitioner’s goods, Dietary Products, claimed in Class
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`005 do not relate to Respondent’s product, Non-alcoholic beverage, namely, energy
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`drinks in Class 032. These are two very distinct and different goods in connection to
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`Respondent’s mark with dissimilar established, likely-to—continue trade channels. The
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`goods are so different as to preclude any likelihood of confusion, Canada Dry Corp. V
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`Am. Home Prods. Corp. 468 F.2d 207, 208, 175 USPQ 557 (CCPA 1972), Schenley
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`Distillers, Inc. v Gen. Cigar Co. 427 F.2d 783. 785, 166 USPQ 142, 144 (CCPA 1970).
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`Likelihood of Confusion
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`The likelihood of confusion is determined by the DuPont factors that are pertinent
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`to the case at hand. In re E.I. Dupont DeNemours & Co., 476 F.2d 1357, 1361, 177
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`USPQ 563, 567 9CCPA 1973).
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`Petitioner must prove that Respondent’s mark is likely to cause confusion,
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`mistake or deception using the factors in In re E.I. Dupont. There is no evidence cited to
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`support the likelihood to cause confusion, mistake or deception.
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`Similarity or dissimilarity of Marks in their entireties as to
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`appearance, sound, connotation and commercial impression.
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`The marks are not similar. Each mark consists of three words, “LIQUID
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`HERBAL NITRO” and “NITRO ENERGY DRINK” but only one of those words is the
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`same - the word Nitro. This word appears at the end of the Petitioner’s mark and at the
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`beginning of the Respondent’s mark. The Petitioner’s mark has the word HERBAL in it
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`which suggests that it is herbal in nature while the Respondent’ mark does not. The two
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`
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`marks are not phonetically similar. They do not sound alike or give the same impression.
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`They do not have the same appearance. The marks as they are used on the cans are used
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`differently with different colors, styles, fonts and formatting. Sure-Fit Prods. Co. v
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`Saltzson Draperty Co., 254 F.2d 158, 160, 117 USPQ 295, 296 (CCPA 1958) (finding no
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`likelihood of confusion between the applied for mark RITE-FIT and the prior mark
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`SURE-FIT, both used for slip covers for various articles of furniture, differences in sound
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`and appearance found to outweigh similarity in meaning.)
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`Counter to the Petitioner’s argument that only the word Nitro should be
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`considered, the Board has correctly held that the filing of a disclaimer with the Patent and
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`Trademark Office does not remove the disclaimed matter from the purview of
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`determination of likelihood of confusion.
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`The marks must be considered in the way in which they are perceived by the
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`relevant public. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ 2d 1687-88 (Fed. Cir. 1993)
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`Similarity of the marks in one respect — sight, sound or meaning --- will n_ot
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`automatically result in a finding of likelihood of confusion even if the goods are closely
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`related. TMEP section 1207.01 (b)(i). When considered in its entirety, LIQUID
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`HERBAL NITRO has a different connotation from Respondent’s mark because the
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`highly distinctive word HERBAL denotes specifically the ingredients of the product as
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`well as an image of health product marketed to heath minded consumers. The
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`Respondent’s mark contains the highly descriptive work ENERGY which distinguishes
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`what the consumer will get out of the Respondent’s product. The marks are different in
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`sound, appearance, connotation and commercial impression.
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`
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`The packaging and trade dress of the product are different in appearance,
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`connotation and commercial impression, Exhibits 7 and 8.
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`This factor strongly favors the Respondent.
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`Similar marks in use on similar goods
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`The registered mark NITRO, registration number 2946361 is for brewed alcoholic
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`beverages, namely, beer, ale, lager, malt liquor, stout, porter and lambic; beer-based
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`coolers with a first use of April 2, 2004 and a first use in commerce of November 30,
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`2004 with a registration Date May 3, 2005, Exhibit 9.
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`This factor strongly favors the Respondent.
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`Fame of Marks
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`Petitioner’s mark is not famous or widely used. This factor strongly favors the
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`Respondent.
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`The nature and extent of any actual confusion.
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`In the years that they have both been in the marketplace there is no recordecl
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`confusion between the two products by the Petitioner, Response to Respondent’s
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`Interrogatories, Exhibit 5, Page 7 or the Respondent, Response to Petitioner’s
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`Interrogatories, Exhibit 4, Page 11. This is a fact that is agreed to by the Petitioner in
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`their Response to Respondent’s Interrogatories, Exhibit 5, Page 7.
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`This factor strongly favors the Respondent.
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`
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`The length of time during, and conditions under which, there has been concurrent
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`use without evidence of actual confusion.
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`Respondent has sold its product for least five years prior to the current date and
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`Petitioner has claimed a similar timeframe. During this time there has been no evidence
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`of any actual confusion provided by the Petitioner. Exhibit 5, Page 7. During this time
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`the Respondent has marketed its product through a large number of trade shows
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`throughout the country including The Porto Rico Food & Beverage Show in January, 18-
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`20, 2004 and the Chicago Show in May, 02-04, 2004, Exhibit 4, page 9.
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`This factor strongly favors the Respondent.
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`LIKELIHOOD OF CONFUSION BETWEEN THE PARTIES’ MARKS
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`Respondent denies the claim of "There is a Likelihood of Confusion between the
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`Parties‘ Marks".
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`Petitioner has not provided any evidence of any confusion or any likelihood of
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`confusion between the two marks. The burden of proof is on the Petitioner as the
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`movent. Petitioner must prove that Respondent’s mark is likely to cause confusion,
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`mistake or deception. There is no admission cited to support the likelihood to cause
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`confusion, mistake or deception. There is no deposition testimony cited to support the
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`likelihood to cause confusion, mistake or deception. There is no answer to interrogatory
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`cited to support the likelihood to cause confusion, mistake or deception. There is no
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`document produced by Petitioner cited to support the likelihood to cause confusion,
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`mistake or deception.
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`
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`Thus, all these notable factors powerfully favor the Respondent's request.
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`AFFIRMATIVE DEFENSE — LACHES
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`If the Board for some reason does not agree with Respondent’s arguments and findings
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`above, then in the alternative the Respondent claims the Affirmative Defense of Laches.
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`Respondent has filed a Motion to Amend its Answer to include the Affirmative Defense
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`of Laches. (Attached, Exhibit A). This request is based on the Petitioner’s new first use
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`date of December, 2003, which the Respondent disputes, which is different from
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`Petitioner’s pleaded first use date, the first use date claimed in the Petitioner’s
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`Application Number 77155508 (now abandoned) and the date claimed in Petitioner’s
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`Application Number 77508066 as well as the first use date provided to Respondent by
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`Petitioner in response to Respondent’s First Request for Interrogatories and information
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`discovered by Respondent from the Petitioner during discovery with supports this
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`defense.
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`By statute, the defense of laches is available in inter parties proceedings. Lanham
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`Act § 19 provides, ‘‘In all inter parties proceedings equitable principle of laches, estoppel
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`and acquiescence, where applicable may be considered and applied.
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`The elements of laches are (1) unreasonable delay in assertion of one’s rights
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`against another; and (2) material prejudice to another attributable to the delay. Lincoln
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`Logs Ltd. V Lincoln Pre-Cut Log Homes, Inc., 971 F.2d 732, 734 23 USPQ2d 1701,
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`
`
`1703 (Fed. Cir. 1992). (“The defense of laches in a trademark proceeding recognized
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`under 15 U.S.C. § 1069 requires a showing of undue delay in asserting rights against a
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`claimant to a conflicting mark and prejudice resulting therefrom”)
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`Respondent filed for the mark “NlTRO ENERGY DRINK” on August 23, 2004
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`and it was published for Opposition on September 13, 2005. The Petitioner brought the
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`Cancellation proceeding on October 30, 2008, which is over three full years from when
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`the Respondent’s mark was published for Opposition. During this time the Respondent
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`spent significant funds marketing its mark including $75,000 spent on marketing in the
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`State of New York alone during 2006 as well as expanding the use of the mark into new
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`marketplaces and presenting it in tradeshows throughout the United States. Exhibit 4,
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`page 6 and 9 respectively. The investments in Marketing from July 26, 2007 to October
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`30, 2008 in all marketing and promotions was greater than 1 million US Dollars. From
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`July 26, 2007 to October 30, 2008 the company grew about 20% in sales and from
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`October 30, 2008 to June 30, 2009 the Respondent grew another 22% in sales. Exhibit 3,
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`Declaration of Eduardo s. M. Olivier.
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`Respondent contends that the Petitioner “slept on it rights.” Respondent was
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`surprised and shocked to discover that although the Petitioner discovered the potential
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`conflict on July 26, 2007 from an Office Action for Petitioner’s Application Number
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`77155508 (now abandoned) Exhibit B and Exhibit C, the Petitioner did not file the
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`Petition for Cancellation until October 30, 2008, a full 16 months later, during which
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`time Respondent spent considerable money, and time promoting its product under the
`
`10
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`
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`“NITRO ENERGY DRINK” mark and building up business and goodwill in association
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`with the mark. The Petitioner also waited almost six months from the abandonment of
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`Petitioner’s Application Number 77155508, Exhibit D, before filing Petitioner’s
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`Application Number 77508066; an additional six months during which the Respondent
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`spent money and time promoting its product under the “NITRO ENERGY DRINK” mark
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`building up business and goodwill in association with the mark. The Petitioner has
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`provided no explanation for this delay and has not provided any proof of marketing or
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`any invoices between the dates of June, 2006 and September 9, 2008, Exhibit E, even
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`though this proof was requested in Respondent’s Request for Production of Documents,
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`Exhibit 6. Much of the marketing material provided by Petitioner, include the Deion
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`Sanders promotional material was from 2005. The later invoices display the product as
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`“Liquid Nitro” not “Liquid Herbal Nitro”. Did the Petitioner intend to abandon its
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`“LIQUID HERBAL NITRO” mark? It is hard to know due to the lack of evidence. But
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`if the Petitioner did this would bring about a defense of Unclean Hands.
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`As argued above, there is no likelihood of confusion between the “NITRO
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`ENERGY DRINK” and “LIQUID HERBAL NITRO.” In the years that they have been
`
`in the marketplace there is no recorded confusion between the two products by the
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`Petitioner, Exhibit 5, Page 7 or the Respondent, Exhibit 4, Page 11. The marks are not
`
`identical and the question of likelihood of confusion is reasonably in doubt. Copperweld
`
`Corp. v. Astrally~Vulcan Corp., 196 USPQ 585, 592 (TTAB 1977)
`
`ll
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`
`
`Conclusion
`
`The Petitioner has not successfully shown in its Motion for Summary Judgment before
`
`the Trademark Trial and Appeal Board that there is “no genuine issue as to any material
`
`fact and that the moving party is entitled to judgment as a matter of law.” There are still
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`numerous issues of law and material facts and those fact and laws present favor the
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`Respondent.
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`WHEREFORE, Applicant prays that the Motion for Summary Judgment not be granted
`
`and if the Board sees fit grant Summary Judgment for the Respondent.
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`Respectfully submitted,
`
` Jeffrey
`
`Furr
`Attorney for Respondent
`2622 Debolt Road
`
`Utica, Ohio 43080
`JeffMFurr@aol.com
`740—892—2l 18 (telephone)
`740-892-3860 (fax)
`
`CERTIFICATE OF SERVICE
`
`C/7
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`I hereby certify that a true and correct copy of the foregoing document has been duly
`served by depositing such copy with the US Postal Service, in an envelope addressed
`Loza & Loza,éLI’, Christina S. Loza, 3200 Guasti Rd., Ste. 100, Ontario, California
`91761 on the E »’,7 day ofJuly, 2009.
`
`'\
`
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`
`\.
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`\
`
`
`
`Jeffrey M. Furr
`
`l2
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`
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`Table of Exhibits:
`
`Dante Peter Spano V. Blue Beverages Envasadora Ltd., Cancellation No.: 92/050127
`
`1. Exhibit 1: Nitro Energy Drink Principal Register
`
`2. Exhibit 2: Some examples of Nitro Energy Drink mark being used in commerce
`
`3. Exhibit 3: Declaration of Eduardo S. M. Oliveira, Corporate Director of Blue
`
`Beverages Envasadora, Ltd..
`
`4. Exhibit 4: Respondent’s Response to Petitioner’s First Set of Interrogatories
`
`5. Exhibit 5: Petitioner’s Response to Respondent’s First Set of Interrogatories
`
`6. Exhibit 6: Petitioner’s Response to Respondent’s First set of Document Requests.
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`'7. Exhibit 7: Image of the Nitro Energy Drink on can
`
`8. Exhibit 7: Image of the LIQUID HERBAL NITRO packaging
`
`9. Exhibit 9: Nitro Energy Drink Principal Register
`
`10. Exhibit A: Motion to Amend Pleadings
`
`11. Exhibit B: Office Action dated July 26, 2007 for Liquid Herbal Nitro Serial Number
`
`77155508
`
`12. Exhibit C: Notice of Abandoment dated July 26, 2007 for Liquid Herbal Nitro Serial
`
`Number 771555087.
`
`13. Exhibit D: Office Action dated October 6, 2008 for Liquid Herbal Nitro Serial
`
`Number 77508066
`
`14. Exhibit E: Petitioner Invoices and Marketing Material (CONFIDENTIAL —
`
`SUBMITTED UNDER)
`
`13
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`
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`
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`
`
`EXHIBIT 1EXHIBIT 1EXHIBIT 1
`
`
`
`Int. Cl.: 32
`
`Prior U.S. C1s.: 45, 46, and 48
`
`Reg. No. 3,146,505
`United States Patent and Trademark Office
`Registered Sep. 19, 2006
`_________j______._______.__._.___
`
`TRADEMARK
`
`PRINCIPAL REGISTER
`
`Nitro Energy Drink
`
`BLUE BEVERAGES ENVASADORA LTD. (BRA-
`ZIL LIMITED CORPORATION)
`RUA ANGELO POLIS NO 940-CEO
`18279-353-JARDIM
`
`TATULSP’ BRAZIL
`FOR: NON—ALCOHOLIC BEVERAGES, NAMELY,
`EI\ER4gr)X./ DRINKS, II\ CLASS 32 (US. CLS. 45, 46
`
`THE MARK CONSISTS OF STANDARD CHAR-
`ACTERS WITHOUT CLAIM TO ANY PARTICULAR
`FONT, STYLE, SIZE, OR COLOR.
`
`NO CLAIM IS MADE TO THE EXCLUSIVE
`RIGHT To USE "ENERGY DRINK", APART FROM
`THE MARK AS SHOWN.
`
`SN ,/8_4_/2,068’ FILED 8_23_20O4.
`
`FIRST USE 6-2-2006; IN COMMERCE 6-2-2006.
`
`HOWARD SMIGA: EXAMINTNG ATTORNEY
`
`
`
`
`
`
`
`EXHIBIT 2EXHIBIT 2EXHIBIT 2
`
`
`
`Packaging Spcclflcotions
`Nivu Energy Dtink 24 x 8.4 OZ
`Nxlrn Energy Drink 4 pack
`nmro Energy Drink can
`UPC CODE
`SHELF Lu-L (MONIHS;
`CASE WI, LBS
`CASE CUBE
`PALLET COUNT
`TIE I H!
`
`6 54887 00024 2
`6 54087 00021 1
`6 54387 000204
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`IP.
`22 1 21,5 x M
`5 ‘37
`mo
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`Hwy:
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`H/I-‘OS
`
`Dennis Sugimoto
`Buyer
`Costco Wholesale
`3980 Venture Drtvc NW-Suite I00
`Duluth. GA 300%
`
`Dennis.
`
`A few wecks ago my National Sales Manager, Dnvtd Rcistcr mct wnh Claude GICCI1, Russ
`and prcscntcd two new energy drinks that wc an:
`ttnportlng and brtttgtng to market. During
`on: was very posttivc that the cans are Bt-lingual
`and will attract the Htspnnic market Ano
`1607. can by our competitors. which is snmcthtng
`that we are not concerned with due to the
`appruxtmately 10% more caffeinc than th
`Nttro an: high powered energy drinks containing
`contact you ditcctly to discuss the pussihilitxcs
`
`centre and Joanne Chen at Costco HQ
`he dtscusston a few points wcre noted,
`cr was directed to the tntroductmn ofa
`"auteur products. both Blue Xtrcmc and
`competition. They suggested that wc
`
`H4}
`
`
`
`BLUE XTREME ENERGY DRINK 24/8 402
`NITRO ENERGY DRINK 24/8 402
`
`World Wide Food Products is pleased to offer the fnllowing New Energy Drunks to Cost1o.
`Attached you wall find lh: product descnplmn and spcc sheet Bnlh ofthc products are p ccd 1:} $26.00 pzt came FOB the port.
`Please cnjoy the samples and advise any commcnls. You can Contact David Rclsler
`94 1-23-9909 (TDT2365@aol com).
`Thank you.
`Rtchard Aw
`VI‘
`
`World Wu]: F nod Products
`7l8-658-4000 X3008
`Fax 718-262-3006
`Cell 917-418-2963
`
`
`
`350.5
`
`Cratg McAteet
`Footl-n-rnmu Supermnrketc
`
`Craig,
`
`As per yuut E-mail I have revised the prngrnm I httltcu: thu mll work for Food-manna.
`
`BLUE XTREME ENERGY DRINK 24/8.402 (6/4p:tck 31.601)
`NITRO ENERGY DRINK 24/8.401 (5/4plCI( 3J.6u7.)
`
`Both orthe products will be priced EDLP @ $26.00 per case. unit cost of $4.33.
`Suggested tetuil @5199 4pk 28%
`
`Ad allowance 6fit)$750.00 $4500.00
`New Ycars
`Supev bowl
`St. Patrick's Day
`Memorial Day
`Fourth ol'July
`Labor Day
`
`With an intro order of Wes nfeach ilcm tzocs total) per store we WI" provide Scs ofcach l'rLc ( Iocs at tt value of$260.00)
`Total Chatn
`
`26 stores - 260cs Blue. Z6()t:s Nitro (260t:s at a value ufS6760.0())
`
`EIKE.
`
`aw
`
`
`
`
`
`March 10, 2005
`
`Vince Colatriano
`
`Director Category Management
`
`Pathmark Stores Inc
`
`200 Milik St M-520
`
`Carreret, NJ 07000
`
`Worldwidewill provide Pathmark StoresInc. with$20,000.00slottingfeesfor twonewrjoccryitems, BLUE EXTREME& NITRO
`
`onth period.
`
`1
`2.
`
`3.
`VI
`4.
`6.
`
`Reset all stores with POS material and shelf talkers
`Provide demo's for all stores using the Blue/Nitro street team
`(6 month program @ $4800.00 per month — Total $28,800.00)
`bottles, lunch bags and
`Provide promotlonal accessorues that are brand specific at all events such as he 5, sport
`-2:ll3 51:S’.ru 5 ..3'II :1E’. :-3U‘IW -I.0cl.4) III:7oS (D NJ U‘?oo oo
`Participate in the Pathmark Radio advert-song program once a quarter @ 55,0
`.00 for a total ol $20,000.00
`In the event of the safe of Pathmarlc Stores Inc. to an out side entity who would not operate as such, Pathmark Stores
`Inc. would be responsible to reimburse the $20,0000.00 slotting lees
`
`World Wide Food Products
`
`Richard Aro V.P.
`
`
`
`Pathmark Stores Inc
`
`Vince Colatriano Dlrector
`
`
`
`
`
`April 18,2007
`
`BLUE ENERGY DRINK
`UPC 6-54887 00010-5 Can
`NITRO ENERGY DRINK
`
`UPC 6-S4887 00020-4 Can
`
`6—S4887 00011-2 4 Padk
`CL
`
`6-54887 0002!-I 4 Pa
`
`PALLET CT. 144 CS
`TIE x HI
`16 x 9
`CASE CUBE 5.57
`CS. DIMENSIONS 3?.“ x 2 I .5“ x 14"
`
`CASE PACK 24/8.407. (6/4-8402 units)
`
`CASE COST $17.28
`
`$.72
`
`UNIT COST‘
`
`WORLD WIDE FOOD PRODUCTS INC.
`New York 11435
`716-658-4000
`
`147-07 94! Avenue Jamaica.
`FAX 718-262-800
`
`SALES INVOICE
`
`Buyer:
`
`BLUE BEVERAGES ENVASADORA LTDA
`AV ANGELO POLES. 940 JARDIM TOKIO
`CEP 18279-586
`TATUI SP
`
`0 TE 5/14/06
`
`IN # WWF/BLUE-005
`
`BLUE XTREME
`
`TOTAL
`AMOUNT
`USD
`
`$5000.00
`
`If/5’
`
`
`
`
`
`
`
`. _ .I.l!.5fi3_C_3i-_LABl__-..__
`
`
`
`PLEASE WRE TRANSFER THE FUNDS TO THE FOLLOW NG ACCOUNT
`PAY TO: STATE BANK OF LONG ISLAND
`2 JERICHO PLAZA
`JERICHO. NEW YORK 11753
`ACCOUNT # 0021781130
`ABA#O21401617
`
`WORLD WIDE FOOD PRODU TS INC.
`147-07 94th Avenue Jamaica, New Yo k 11435
`718-658—4000
`FAX 718-262- 006
`
`SALES INVOICE
`
`Buyer:
`
`BLUE BEVERAGES ENVASADORA LTDA
`AV. ANGELO POLE S. 940 JARDIM TOKIO
`CEP 18279-586
`TATUI SP
`
`DATE 12/23/05
`
`INVII WWFIBLUE-003
`
`NITRO
`
`PATHMARK NEW YEARS AD
`12/30/O5
`BLUE XTREME I
`
`TOTAL AMOUNT USD
`
`$5000.00
`
`PLEASE WRE TRANSFER THE FUNDS TO THE FOLILOWING
`ACCOUNT
`PAY TO: STATE BANK OF LONG ISLAND
`2 JERICHO PLAZA
`JERICHO, NEW YORK 11753
`ACCOUNT # 0021781130
`ABA?‘ 021401617
`
`WORLD WIDE FOOD PRODUCTIS INC.
`
`W/‘
`
`
`
`
`147-07 94 th Avenue Jamaica, New Yo
`718-658-4000
`FAX 718-262-
`
`k 1 1435
`006
`
`SALES INVOICE
`
`Buyer:
`
`BLUE BEVERAGES ENVASADORA LTDA
`AV. ANGELO POLES, 940 JARDIM TOKIO
`CEP 18279-588
`TATUI SP
`
`07/03/2006
`
`NV# WVVF/BLUE-005
`
`TOTAL AMOUNT USD
`
`DESCRIPTION
`
`PATHMARK ST PATRICKS DAY AD
`BLUE XTREME
`NITRO
`AD BREAKS 3/17/06
`
`$5.000,00
`
`$5,000.00
`
`ACCOUNT
`
`PLEASE WRE TRANSFER THE FUNDS TO THE FOTOWING
`
`PAY TO: STATE BANK OF LONG ISLAND
`2 JERICHO PLAZA
`JERICHO_ NEW YORK 11753
`ACCOUNT 3 0021781130
`ABA # 021401617
`
`WORLD WIDE FOOD PRODUCTS INC.
`New York 11435
`718-658-4000
`
`147-07 94 IL
`
`Avenue Jamaica.
`
`FAX 718-252-aobs
`
`SALES INVOICE
`
`Buyer:
`
`BLUE BEVERAGES ENVASADORA LTDA
`AV. ANGELO POLES. 940 JARDIM TOKIO
`
`ATE I/30/06
`
`CEP 18279-585
`
`TATUI SP
`
`I V# VVINF/BLUE—004
`
`
`
`
`
`PATHMARK SUPER
`BOWL AD
`BLUE XTREME
`NITRO
`
`$5000.00
`
`
`
`PLEASE WRE TRANSFER THE FUNDS TO THE FOLLOWINL ACCOUNT
`PAY TO: STATE BANK OF LONG ISLAND
`2 JERICHO PLAZA
`JERICHO, NEW YORK 11753
`ACCOUNT it 0021781130
`ABA # 021401617
`
`
`
`
`
`
`
`EXHIBIT 3EXHIBIT 3EXHIBIT 3
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`EXHIBIT 4EXHIBIT 4EXHIBIT 4
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Dante Peter Spano
`An individual
`
`Petitioner
`
`VS.
`
`Registration No.: 3146505
`'
`,
`.
`’
`‘
`For the mafk: NITRO ENERGY DRINK
`
`Blue Beverages Envasadora Ltd.
`A Brazilian Limited Corporation
`
`Date Registered: September 19, 2006
`
`Cancellation No.: 92050127
`
`Respondent
`
`RESPONDENT’S RESPONSE TO PETITIONER’S FIRST SET OF
`INTERROGATORIES
`
`Pursuant to Rule 33 of the Federal Rules of Civil Procedure and Rule
`2.120 ofthe Trademark Rules of Practice (37 C.F.R. 2.120), Petitioner Dante
`Peter Spano, (“Petitioner”), serves its First Set of Interrogatories upon Respondent
`Blue Beverages Envasadora Ltd.. (“Respondent”), to be answered fully in writing
`under oath. A copy of the answer shall be served upon Petitioner’s counsel: Loza
`& Loza, LLP, Chrstina S. Loza, 3200 Guasti Rd., Ste. 100, Ontario, California
`91761, within thirty (30) days after the service hereof. To the extent permitted by
`Rule 26(e) of the Federal Rules of Civil Procedure. these interrogatories are to be
`deemed continuing and the answers hereto are to be supplemented promptly upon
`Respondent’s acquisition of further or additional information.
`
`General Definitions and Instructions
`________________________
`
`All interrogatories are to be answered on the basis of Respondent’s
`knowledge or information and belief, including that of its officers, employees,
`directors, or agents having such knowledge. If any answer is given on
`information and belief, such fact should be stated in the answer.
`
`If any information called for in any interrogatory is being withheld on the
`grounds that it is subject to the attomey-client privilege or any other privilege,
`
`
`
`Respondent is hereby directed to state with respect to such interrogatory that the
`information is being withheld and state the alleged ground of privilege.
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`The following definitions are applicable herein:
`
`The terms “Respondent" and “you" or “yours“ mean and refer to the
`Respondent, Blue Beverages Envasadora Ltd. all assignees of the NITRO
`ENERGY DRINK trademark, Registration No. 3146505, its predecessors,
`or controlled, controlling, or affiliated companies, and Respondent’s past
`a
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