Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA611254
`ESTTA Tracking number:
`06/20/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92059276
`Plaintiff
`The Candy Company, Inc.
`MICHAEL A PENN
`BRISKIN CROSS & SANFORD LLC
`1001 CAMBRIDGE SQUARE SUITE D
`ALPHARETTA, GA 30009
`UNITED STATES
`mpenn@briskinlaw.com
`Other Motions/Papers
`Michael A. Penn
`mpenn@briskinlaw.com
`/Michael A. Penn/
`06/20/2014
`Hinkle Affidavit in Support of Cancellation.pdf(4056897 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRMI4 AND APPEAL BOARD
`
`In re:
`
`Registration No. 4273018
`Mark: USERVE
`
`The Candy Company, Inc.,
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`v.
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`Petitioner,
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`Yogen Fruz, U.S.A., Inc.,
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`Registrant.
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`AFFIDAVIT OF TROY L. HINIQJE
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`STATE OF GEORGLA
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`COUNTY OF FULTON
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`PERSONALLY APPEARED before me, an officer duly authorized by law to administer
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`oaths, Troy L. Hinkle, who, after first being duly sworn, states:
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`1.
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`My name is Troy L. Hinkle and I am competent in all respects to testify regarding
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`the matters set forth herein.
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`I have personal knowledge of the facts stated in this Affidavit and
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`give this Affidavit Voluntarily in support of the Petition for Cancellation of Registered Mark filed
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`by THE CANDY COMPANY, INC. (“The Candy C0,”) on May 25, 2014.
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`2.
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`I am the President of THE CANDY Co., which is the owner of the mark “U-SERV
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`MARKET” (the “TCC Mark”).
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`3.
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`THE CANDY Co. has used the TCC Mark in commerce since at least as early as
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`March 18, 2010. Attached hereto as Exhibit A is a true and accurate copy of the Service
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`

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`Agreement between THE CANDY C0. and its client, LXE, INC. (“LXE”), dated March 18, 2010, in
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`which THE CANDY C0. contracted to provide LXE with a “U-SERV MARKET” store area.
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`4.
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`Attached hereto as Exhibit B is a true and accurate depiction of the TCC Mark in
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`use in the LXE “U—SERV MARKET”.
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`5.
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`Attached hereto as Exhibit C is a true and accurate copy of the Credit and Market
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`Sales Report for the “U-SERV MARKET” services provided to LXE, which reflects sales within the
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`U-SERV MARKET during the week of July 1, 2010.
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`Sworn to and subscribed before me
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`this
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`day of June, 2014
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`AFFLANT FURTHER SAYETH NOT.
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`

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`

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`REFRESHMENT WORKS
`BREAKROOM SERVICE
`AGREEMENT
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`Date: A/iA'l2€
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`ti
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`igi, 10“)
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`Client: LXE Inc.
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`Address: 125 Technology Parkway
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`City: Norcross State:Georgia Zip: 30092
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`Service Authorization: Client hereby grants to The Candy Co. Inc. (doing business as, and hereinafter
`referred to as “Refreshment Works”) the exclusive right during the term of this Agreement to provide food
`and beverage services at the Client’s location at 125 Technology Parkway, Norcross, Georgia 30092
`(“Client’s Premises”); provided, however, that the provision of food and beverages at meetings, training
`and fund-raising events held at Client’s Premises shall not be included in the exclusive rights of
`Refreshment Works granted under this Agreement. Refreshment Works will install and maintain in good
`working order the “FAST TRACK” technology equipment and software provided by Freedom Shopping,
`Inc. and/or its business channel partners (such as FastTrack), at Client’s Premises and shall maintain such
`equipment and software at all times in the most current version of such technology as is generally available
`to business partners of Freedom Shopping, Inc.
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`Service Conditions:
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`A. Equipment: Refreshment Works will provide all “FAST TRACK” equipment and related equipment and
`software, as well as inventory of food and beverage items necessary to provide services on Client’s
`premises as mutually agreed, but in all events at least in reasonably satisfactory service in terms of ease of
`use, payment systems accessibility, selection and freshness of inventory, prices and customer satisfaction
`generally, and shall have such services operational and ready for Client’s personnel’s use on or before June
`13, 2010. Refreshment Works shall remain the owner of and shall at all times bear the risk of loss of and
`damage to, all store fixtures and technology, and related equipment and food and beverage inventory, and
`shall make all necessary repairs to such equipment and shall provide all necessary maintenance and
`sanitation for such equipment. Refreshment Works will do it’s best to maintain up time not less than 99%
`of the time, 24 hours per day and 7 days per week, during every period of 30 consecutive days.
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`B. Client’s Premises, Utilities: Client agrees to provide Refreshment Works with access to Client’s
`Premises during normal business hours (and after normal business hours pursuant to access process to be
`mutually agreed in good faith), subject to Client’s operating and security procedures, for purposes of
`providing the services hereunder, and to provide all utilities required for Refreshment Works to provide the
`services hereunder; specifically, electricity, internet access (subject to limitations and conditions of access
`and use specified by Client and in accordance with C1ient’s policies and procedures), local phone line, and
`connections to such communications media. Client will maintain Client’s Premises, including the cleaning
`of the floors in the U-SERV store area.
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`Personnel: Refreshment Works shall provide trained personnel to properly service the U-SERV
`C.
`and related equipment. Employees of Refreshment Works will be subject to the rules and regulations of
`Client, including Client’s operating and security procedures, while on Client’s Premises.
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`D.
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`Additional Provisions:
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`

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`1.
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`2.
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`Financial Terms: Client shall have no obligations of payment of any kind to Refreshment Works
`with respect to the services, of U—SERV equipment for food and beverage inventory provided by
`Refreshment Works at Client’s Premises U—SERV location Selling prices of food and beverage
`items offered through the services will be at all times consistent with those charged for the same
`or similar items at locations with similar sales volumes in the Atlanta metropolitan statistical area,
`and shall include applicable state and local sales taxes.
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`Indemnification and Insurance. Refreshment Works shall defend, indemnify and hold Client and
`its affiliates harmless from and against any and all claims, damages, judgments and liabilities
`Client and its affiliates may suffer arising out of injuries to persons or loss of, or damage to,
`personal property caused by the negligence, unlawful ac or willful misconduct of Refreshment
`Works or of its personnel, subcontractors or agents.
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`Refreshment Works shall, at its own cost and expense, obtain and maintain in full force and effect,
`with financially sound and reputable insurers, during the term of this Agreement, the following
`insurance coverages: Worker’s Compensation as required by Georgia law; employer’s liability
`insurance with a minimum limit of $500,000 of liability; Comprehensive General Liability
`insurance against all hazards with a minimum limit of liability for personal injury, including death
`resulting therefrom, on an occurrence basis of $1,000,000 in the aggregate, and with a minimum
`limit of liability for property damage on an occurrence basis of $1,000,000 in the aggregate; and
`Automobile Liability insurance against liability arising from the maintenance or use of all owned,
`non-owned and hired automobiles and trucks with a minimum limit of liability for bodily injury of
`$1,000,000 in the aggregate, and with a minimum limit of liability for property damage of
`$500,000 per accident. Refreshment Works’ insurance shall be deemed primary. Refreshment
`Works shall provide Client with certificates of insurance evidencing the coverages required
`hereunder within 15 days after execution of this Agreement. Each policy required hereunder shall
`name Client as an additional insured and shall provide that Client shall receive 30 days’ advance
`written notice in the event of a cancellation or material change in such policy.
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`3. Licenses, Permits, and Taxes, Refreshment Works will secure and pay for all federal, state, and local
`licenses and permits required for the “U—SERV” service operation, as well as collect and pay all
`federal, state, and local sales, use and excise taxes attributable to the refreshment services
`provided.
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`4. The initial term of this agreement is for 5 years commencing on the date set forth above and will be
`renewed on a year to year basis thereafter upon written agreement of both parties, 90 days before
`end of term.
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`5. Termination for cause: In the event either party fails to perfonn as set forth in this agreement, the
`non—breaching party shall provide the breaching party with written notice, specifying the nature
`and extent of the deficiencies and demanding a cure. If such deficiency is not cured within 30 days
`following the date of such notice, then the non—breaching party may terminate this agreement upon
`written notice.
`In the event of any such termination, Refreshment Works shall promptly remove
`from Client’s Premises all of its equipment and inventory without damage to Client’s Premises.
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`6. Other Termination: Refreshment Works will have the option to terminate this Agreement and
`remove “FAST TRACK” equipment due to Client’s location’s inability to support profitable
`operation of the services upon 60 days’ prior written notice to Client. In the event Client notifies
`Refreshment Works in writing of its intent to quit Client’s Premises or cease operation of the
`business at Client’s Premises , or is the subject of voluntary or involuntary bankruptcy or similar
`proceedings, Refreshment Works at its option, may remove its equipment without further
`obligation of Refreshment Works to Client with respect to performance of the services and this
`Agreement shall terminate immediately upon such removal. Notwithstanding any such
`termination or termination for cause otherwise permitted under this Agreement, the provisions of
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`

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`sections C.2 (Indemnification and Insurance) and C.8 (Confidentiality) shall survive such
`termination or expiration of this Agreement for a period of 3 years.
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`7. Notice: Notices required-in this agreement shall be in writing and must be mailed first class to the
`contracts Dept. at Refreshment Works 450 S.Cemetery St, Suite 201., Norcross, Ga. 30071.
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`8. Confidentiality: Refreshment Works shall keep non-public information it receives from Client or to
`which it has access based on its presence at Client’s Premises in strict confidence exercising the
`same standard of care used by Refreshment Works to protect its own confidential and proprietary
`information, but in any event not less than reasonable care, to prevent the disclosure of such
`information to any third party. Refreshment Works will not use such information for any purpose
`other than for the benefit of Client in furtherance of the purposes of this Agreement.
`In the event
`of a breach or threatened breach of the provisions of this section C.8, Client will be entitled to an
`injunction restraining such breach or threatened breach without having to prove actual damages.
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`9. Force Majeure: If the performance of this Agreement, or of any of the obligations specified herein,
`is prevented, delayed, restricted or interfered with by reason of any act of God, including (without
`limitation) fire, flood, hurricane, tornado, earthquake act of war or terrorism, labor strike or other
`cause or causes beyond the reasonable control of the affected party, the party so affected, upon
`giving prompt notice to the other, will be excused from performance to the extent of the
`prevention, delay, restriction, or interference, provided that the party so affected shall use its best
`efforts to avoid or remove the causes of non—performance hereunder and will resume performance
`with the utmost dispatch whenever such causes are removed.
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`10. Merger: This Agreement is the entire agreement with respect to the subject matter hereof and
`supersedes all previous and contemporaneous agreements and understandings, whether oral or
`written, between Client and Refreshment Works with respect to its subject matter, which are
`hereby made null and void.
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`11. No Assignments: Neither party may assign this Agreement in whole or in part, or delegate any
`duties hereunder, without the prior written consent of the other party, and any attempted
`assignment or delegation without such consent shall be void and of no effect.
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`Client and Refreshment Works accept and agree to the terms and conditions of this Agreement.
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`LXE Inc. (“Client”)
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`The Candy Co. Inc. (“Refreshment Works”
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`By
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`Title
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`Date
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`a
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`g
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`(:6
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`By
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`Title
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`Date
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`

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`Exhibit B
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`

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`Exhibit C
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`report/cashflow.gsp
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`http://'mms.avantimarke-rs.com/avmrpt/report/cashflowrpt
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` Logged in as ; treyVS:-efreshineniwurksxon:
`
`
`Product ‘
`Dashboard
`Location
`
`Inventory '
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`Reports ' Market Users '
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`Coupons ‘
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`Commercial '
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`Admin "
`
`Cashflcw Credit and Market Card Saies for LXE
`'r'I'om 07/01/2010 to DW08/2010
`Locatiun Credit Market
`coupon
`Sales
`Card
`Card
`Sales
`Sals
`515.93
`$227.02
`$15.93
`$227.02
`
`Sales
`Total
`
`$242.95
`$0.00 $242.95
`
`DIE
`Tate!
`Grand
`
`1
`
`1
`1
`
`Recharge Recharge Recharge Recharge Recharge Recharge Recharge
`Credit
`Credit
`Cash
`Cash
`Coupon
`Added
`Total
`Bonus
`Bonus
`Money
`5242430
`$242.00
`
`$225.00
`$225.00
`
`$157.00
`$187.00
`
`$0.60
`
`$0.00
`
`$0110
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`$654.00
`$654.00
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`1ofI
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`4/15/2014 1:13 PM