BULKY
`DOCUMENT
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`(FILED ON PAPER - ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`I Proceeding No.
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`I 92061717
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`I Filing Date
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`I 10/11/2016
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`92061717
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`TTAB
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`THE JUICE PRESS LLC,
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`Petitioner,
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`vs.
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`BEATA SEUBERT,
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`Respondent.
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`Cancellation No. 92061717 -
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`Registration Nos. 4,541, 777 and 4,532, 130
`<?5 5717'? 5 _ <l .5'i 15 3 D 7 Cf
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`BRIEF IN OPPOSITION TO PETITIONER'S MOTION
`TO AMEND CONSOLIDATED PETITION TO CANCEL AND TO COMPEL,
`AND RELATED RELIEF
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`Respondent, Beata Seubert, submits this brief in opposition to the motion of
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`Petitioner, The Juice Press LLC, by which this Petitioner erroneously seeks an Order pursuant to
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`37 C.F.R § 2.115, to: (i) amend its Consolidated Petition to Cancel ("Petition to Cancel") to
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`amplify its claims and add new claims to its Petition to Cancel based on recently discovered
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`information obtained during discovery; (ii) for an order compelling Respondent, Beata Seubert,
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`to respond to Opposer's discovery request; and (iii) to suspend proceedings pending the Board's
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`decision or to reset discovery and trial deadlines.
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`I.
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`INTRODUCTION
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`The Petitioner, The Juice Press LLC's characterizations of the grounds on which
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`it maintains it is entitled to amend its consolidated petition to cancel to amplify its abandonment
`c~aim to add claims based on (1) Re~pondent's lack of bona fide use of the /subject marks in
`commerce and, (b) in the alternative, that Respondent is not, and was not at the time of filing of
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`111111111111111111111111111111111111111111111111111111111111
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`10-11-2016
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`U.S. Patent & TMOtc/TM Mall Rcpt Ot #22
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`the applications, the rightful owner of the subject marks are misleading and self-serving.
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`Further, the Petitioner's characterizations of the grounds on which it maintains it is entitled to
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`compel discovery and demand discovery compliance are also misleading and self-serving. The
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`account of the relevant procedural facts set forth in the Petitioner's motion to amend its
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`consolidated petition to cancel and to compel Respondent to respond to the discovery requests
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`contains subjective characterizations of the facts. There was, it will be shown, bona fide use of
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`the subject marks in commerce and Respondent is, and was at the time of filing of applications,
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`the rightful owner of the subject marks, and Respondent has complied with its discovery
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`obligations at all times. The Petitioner's assertions are lacking in validity, as demonstrated
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`below.
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`II.
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`HISTORY AND PROCEDURAL BACKGROUND
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`1.
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`The instant case is an action brought by the Petitioner seeking to cancel
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`Respondent's VITAL FORCE Registration No. 4,541,777 covering ''Nutritional supplements" in
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`International Class 5, and VITAL FORCE MINERALS Registration No. 4,532,130, covering
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`"Nutritional mineral supplements" in International Class 5, at USPTO on the ground of
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`abandonment and section 2( d) likelihood of confusion.
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`2.
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`The Petitioner claims it is the owner of the trademark VITAL FORCE for fruit
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`beverages; fruit juices; smoothies; vegetable juices in Class 32 and the common law rights
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`thereto, as well as VITAL FORCE Application Serial No. 86/461,053 for "[f]ruit beverages; fruit
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`juices; smoothies; vegetable juices." Kwon Deel. if2.
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`3.
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`On or about June 25, 2015, Petitioner filed its Petition to cancel Respondent's
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`VITAL FORCE Registration No. 4,541,777 and VITAL FORCE MINERAL Registration No.
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`4,532,130. On August 4, 2015, Respondent filed an Answer to the Petitioner's Consolidated
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`Petition for Cancellations and counterclaims. A copy of the Respondent's Answer is annexed
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`hereto as EXHIBIT A. On August 25, 2015, a mandatory settlement/discovery conference was
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`held, but no resolution was reached at that time.
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`4.
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`On December 18, 2015, Petitioner submitted its initial disclosures pursuant to
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`Fed. R. Civ. P. 26(a)(l). Similarly, on December 30, 2015, Respondent served its submissions
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`for discovery. A copy of the Respondent's disclosures is annexed hereto as EXHIBIT B.
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`5.
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`On January 14, 2016, Petitioner served Respondent with Petitioner's First Set of
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`Interrogatories and First Request for Production of Documents. Upon the receipt of the
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`Petitioner's demand, Respondent began to prepare and collect the documents.
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`6.
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`On March 2, 2016, Petitioner served a first and final "good faith" letter upon
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`Respondent by which it offered Petitioner an extension of time of five days to respondent to
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`Petitioner's discovery requests.
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`7.
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`Accordingly, on March 7, 2016, in good faith, Respondent submitted its Answers
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`to Petitioner's First Set of Interrogatories, within the time limit set forth in Petitioner's March 2,
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`2016 correspondence. Besides, on the same day, Respondent served its Demand for First Set of
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`Interrogatories upon Petitioner. A copy of the Respondent's Demand for First Set of
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`Interrogatories, as well as Answers to Petitioner's First Set of Interrogatories, dated March 7,
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`2016 is annexed hereto as EXHIBIT C.
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`8.
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`On March 8, 2016, without practicing its good faith effort requirement of
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`Trademark Rule 2.120(e)(l), Petitioner served its motion to compel by which it erroneously
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`stated that Respondent willfully refused to respond to Petitioner's discovery requests or produce
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`a single responsive document, thus compelling the discovery demands against Respondent. On
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`March 11, 2016, Respondent submitted its opposition to Petitioner's frivolous motion to compel
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`by which Respondent asserted that Respondent had timely answered to Petitioner's discovery
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`demands. As such, the Board denied Petitioner's motion to compel and concluded that the
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`Petitioner failed to satisfy the good faith effort required by Trademark Rule, and the Board
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`further ordered the parties to confer in good faith regarding the responses to the interrogatories
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`before filing any motion to compel.
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`9.
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`On June 1, 2016, Petitioner sent the Respondent a letter by which it stated that it
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`expected Respondent to comply with the Trademark Trial and Appeal's Order, dated May 26,
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`2016. Thus, Respondent responded to Petitioner's letter in good faith, asserting that Respondent
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`worked diligently towards furnishing all the demanded discovery requests. A copy of the
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`Respondent's correspondence, dated June 9, 2016 is annexed hereto as EXHIBIT D. On June 9,
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`2016, Respondent, in good faith, served Answers to Petitioner's First Request for Production of
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`Documents annexed hereto as EXHIBIT E.
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`10.
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`On June 22, 2016, Petitioner forwarded a letter to Respondent identifying issues
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`with Respondent's Answers to Petitioner's Responses to Interrogatories and Requests for
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`Production of Documents. In good faith, the parties held a conference call on June 27, 2016.
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`The Respondent and Petitioner agreed to extend discovery to permit Respondent to provide
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`translations of Polish Documents since the translator was having issues translating the
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`documents. Clearly, the Respondent acted in good faith but the Polish Translator had troubles
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`meeting the deadlines. A copy of the Respondent's good faith correspondence, dated June 28,
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`2016 is annexed as EXHIBIT F.
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`11.
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`On July 5, 2016, Petitioner filed its motion on consent for a 30-day extension of
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`outstanding deadlines for discovery for Petitioner and trial.
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`12.
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`On July 5, 2016, the Respondent also served the Petitioner what was provided to
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`Respondent by the Polish translator, which purported to be complete translations of the
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`documents. A copy of the Respondent's good faith correspondence containing the
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`aforementioned translations, dated July 5, 2016 is annexed as EXHIBIT G.
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`13.
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`Further, on July 11, 2016, Respondent served Supplemental Answers to Plaintiff's
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`First Set of Interrogatories and First Request for Production of Documents annexed hereto as
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`EXHIBIT H. Moreover, on July 14, 2016, Petitioner served its First Set of Requests for
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`Admission, which contains 330 Requests for Admission.
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`14.
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`After sending another purported .deficiency letter on July 27, 2016, in which
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`Petitioner reminded that Respondent's responses to the 330 Requests for Admissions were due
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`on August 18, 2016 and that translations of the Polish documents and supplemental discovery
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`responses were acceptable if provided by Respondent by August IO, 2016 and August 18, 2016,
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`respectively, Petitioner filed another motion on consent for a 30-day extension of outstanding
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`deadlines for discovery for Petitioner and trial on August 4, 2016, which outlined that Discovery
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`for Petitioner closed on September 23, 2016. To date, no responses have been provided by
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`Petitioner in response to Respondent's Demand for First Set of Interrogatories, dated March 7,
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`2016 (see Exhibit C).
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`15.
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`On August 10, 2016, Respondent served Second Supplemental Answers to
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`Petitioner's First Request for Production of Documents, which were certified translation of the
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`Polish documents. A copy of this submission is annexed hereto as EXHIBIT I.
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`16.
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`Besides, on August 15, 2016, Respondent sent a letter to Petitioner, by which it
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`presented its position that Respondent made bona fide use of the VITAL FORCE and VITAL
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`FORCE MINERALS trademarks, has used the trademarks in the United States and is the rightful
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`owner of the registered marks and to which it attached a copy of the Affidavit of Sale of James
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`Spencer. A copy of the Petitioner and Respondent's correspondence, dated August 10, 2016 and
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`August 15, 2016, respectively, is annexed hereto as EXHIBIT J.
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`17.
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`Further, in good faith, on August 18, 2016, Respondent served complete
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`responses to Petitioner's First Set of Requests for Admissions annexed hereto as EXHIBIT K.
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`18.
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`On August 30, 2016, Respondent responded to Petitioner's August 24, 2016 letter
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`in which Petitioner made unfounded accusations of Respondent's alleged longstanding discovery
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`non-compliance, by maintaining the position that Respondent had been acting in good faith to
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`provide Petitioner with the discovery demanded, as shown by . the Respondent's significant
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`amount of discovery responses. A copy of the Respondent's August 30, 2016 correspondence is
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`annexed hereto as EXHIBIT L.
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`19.
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`As demonstrated above, contrary to the assertions made by Petitioner, Respondent
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`has acted in good faith to provide all demanded discovery. Also contrary to the assertions made
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`by Petitioner, Respondent participated in discovery. Rather, Respondent made discovery
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`demands upon Petitioner by which Petitioner utterly failed to provide any responses to
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`Respondent's discovery demands. As such, Petitioner's assertion that Respondent elected not to
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`participate is utterly false and untrue. Besides, contrary to this litany of false allegations,
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`Respondent has acted in good faith in providing discovery in this case. Any delays were caused
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`by the translator hired by Respondent through no fault on the part of the Respondent, by which
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`Respondent agreed to extensions in order to prevent any prejudice to the Petitioner that were
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`caused by the delays. On the other hand, Petitioner has engaged in over burdensome and
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`excessive discovery by which Respondent fully cooperated with, without providing any
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`discovery to Respondent.
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`III. ARGUMENT
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`A.
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`PETITIONER'S MOTION TO AMEND THE PETITION
`SHOULD BE DENIED
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`20.
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`Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend a complaint is
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`generally given freely. However, a court may exercise its discretion to deny leave in a number
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`of circumstances. Town of New Windsor v. Tesa Tuck, Inc., 919 F. Supp. 662, 678 (S.D.N.Y.
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`1996); Barrettv. US. Banknote Corp., 806 F. Supp. 1094, 1098 (S.D.N.Y. 1992).
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`21.
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`Generally, the procedure for amending a complaint is by motion pursuant to Fed.
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`R. Civ. P. 15(a), with the amended pleading attached thereto. A Rule 15 motion should be made
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`in accordance with Fed. R. Civ. P. 7(b) in that it should state with particularity the grounds for
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`the motion and the relief sought.
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`22.
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`If a claim would be futile, leave to amend should not be granted. Foman v. Davis,
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`371U.S.178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). An amendment is considered futile if
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`the amended pleading fails to state a claim or would be subject to a successful motion to dismiss
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`on some other basis. S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing
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`Development Fund Co., Inc., 608 F.2d 28, 42 (2d Cir. 1979); Chan v. Reno, 916 F. Supp. 1289,
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`1302 (S.D.N.Y. 1996).
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`23.
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`In the instant case, Petitioner argues that Respondent, Mrs. Seubert, did not make
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`bona fide use of the marks VITAL FORCE and VITAL FORCE MINERALS, did not use
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`VITAL FORCE and VITAL FORCE MINERALS as a trademark or service mark in the United
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`States and is not and was not at the time of filing of her application, the rightful owner of the
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`registered marks VITAL FORCE and VITAL FORCE MINERALS. (See Exhibit J). Petitioner
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`further stated that the existence of VITAL FORCE Registration No. 4,541 ,777 and VITAL
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`FORCE MINERAL Registration 4,532,130 damages the Petitioner and Petitioner will continue
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`to be damaged.
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`24.
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`However, as set forth in Respondent' s responses, Mrs. Seubert is indeed the
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`rightful owner, has made bona fide use of the marks VITAL FORCE and VITAL FORCE
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`MINERALS and used the marks as a trademark or service mark in the United States. In this
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`respect, the marks are used by entities that are owned and operated by Mrs. Seubert, Max
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`Wellness International, Inc., Max Wellness and GSH Polska. (See Exhibit K) Clearly, these
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`entities using the marks are licensees of the registered marks and to suggest otherwise
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`demonstrates that . Petitioner's proposed amendment to the Petition is futile. Besides, the
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`Affidavit of sale of James Spencer (see Exhibit J) shows that Respondent used the Respondent's
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`Goods in commerce as the bona fide use of a mark in the ordinary course of trade pursuant to the
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`Lanham Act. Further, the marks have been placed on the actual goods and the marks have been
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`affixed to documents associated with the goods or their sale. (See Exhibits B, C, E, G, H, I, J, K).
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`Moreover, Petitioner has yet to provide a single discovery disclosure to Respondent as demanded
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`on March 7, 2016 (See Exhibit C). Petitioner argues that it has the priority of use for the VITAL
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`FORCE mark; however, nothing has been disclosed by Petitioner of its alleged "priority".
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`Respondent has yet to understand the grounds on which Petitioner seeks cancellation of
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`Respondent' s marks.
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`25.
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`Now, Petitioner again files this motion for leave to amend its petition without any
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`valid grounds submitted and without information or documents of its business, namely THE
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`JUICE PRESS LLC, to Respondent. As such, Petitioner's amended pleading failed to state with
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`particularity the grounds for the motion and the relief sought, and fails to state a ~laim or would
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`be subject to a successful motion to dismiss on some other basis.
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`26.
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`For these reasons, Petitioner's proposed amendment to the Petition is futile and
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`Petitioner is not entitled to amend its petition to cancel to amplify its abandonment claim and add
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`new claims. See Trademark Rule 2.115, 37 CFR 2.115; Fred beverage, Inc. v. Fred's Capital
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`.
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`Management, Co., 605 F.3d 963, 967, 94 USPQ2d 1958, 1960 (Fed. Cir. 2010).
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`B.
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`RESPONDENT HAS ACTED IN GOOD FAITH
`IN PROVIDING DISCOVERY
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`27.
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`It is understood that the Trademark Rule 2.120(e) provides in pertinent part:
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`If a party fails to ... answer any question propounded in ... any interrogatory, or
`fails to produce and permit the inspection and copying of any document or thing,
`the party seeking discovery may file a motion before the Trademark Trial and
`Appeal Board for an Order to Compel .. . an answer, or production[.]
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`The granting of a motion to compel discovery is warranted only where a party has failed to
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`provide discovery in response to interrogatories or requests for production of documents and
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`things.
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`28.
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`In this case, the Petitioner alleges that Respondent failed to provide discovery.
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`However, it is believed that Respondent has provided all discovery in her possession to
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`Petitioner. (See Exhibits B, C, E, G, H, I, J, and K). Besides, Respondent has also provided the
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`certified Polish to English translation documents for VITAL FORCE AND VITAL FORCE
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`MINERALS. (See Exhibits G and I) Although Respondent provided the certified Polish to
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`English translation documents for VITAL FORCE AND VITAL FORCE MINERALS to
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`Petitioner, the Petitioner alleges that Respondent failed to provide ALL the translation
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`documents including the other products and documents (see Movant' s Exhibit N) that are not
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`related to the instant cancellation discovery. As such, Petitioner continues to request the Polish
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`to English translations of other products sold by Respondent and not related to this cancellation
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`proceeding.
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`29.
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`Furthermore, Petitioner states that Respondent has failed to set forth in explicit
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`terms that she is not in possession of documents, but it is believed that Respondent responded
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`either "none" or that the Respondent is "not in possession custody or control of such
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`documents." (See Exhibit H) A response of "none" clearly demonstrates that such documents do
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`not exist. The difference is that a response of "none" means that no such documents exist as
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`opposed to responding that such documents may exist, but Respondent is not in possession
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`. custody or control of such documents. Clearly, in no way. was this response intended to be
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`confusing or misleading. Rather, it is believed that such response is very clear and straight
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`forward.
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`30.
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`It is also understood that all attorneys or the representatives shall cooperate with
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`one another in discovery process. See Panda Travel Inc., v Resort Option Enterprises, Inc., 94
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`USPQ2d 1789, 1791 (TT AB2009) ("Each party has a duty to make a good faith effort to satisfy
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`the reasonable and appropriate discovery needs of its adversary."); Amazon Technologies Inc. v.
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`Wax, 93 USPQ2d 1702, 1705 (TTAB 2009), quoting Nevada Power Co. v. Monsanto Co., 151
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`F.R.D. 118, 120 (D. Nev. 1993) (("In order for the meet and confer process to be meaningful
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`and serve its intended purpose, 'the parties must present to each other the merits of their
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`respective positions with the same candor, specificity, and support during informal negotiations
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`as during the briefing of discovery motions.'"). See also Sunrider Corp. v. Raats, 83 USPQ2d
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`1648, 1654 (TT AB 2007) (parties have a duty to cooperate in resolving conflicts in the
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`scheduling and taking of depositions).
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`31.
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`However, the Petitioner, who filed the instant motion to compel, has never acted
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`m good faith in conducting the discovery and did not comply with the Trademark Rule.
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`Although Petitioner served its First Request of Interrogatories with 40 questions; First Request
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`for Production of Documents with 92 questions; and First Request for Admissions with 330
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`questions, Respondent had acted in good faith to answer all the requests from Petitioner. On the
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`other hand, Petitioner refused to respond to Respondent's demands (See Exhibit C), which was
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`first served on March 7, 2016, based on the reason that Petitioner has yet to receive all the
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`documents that Petitioner asked and thus will not respond to Respondent's demand. Despite that
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`the Petitioner is the only noncompliant party, who did not act in good faith, either in requesting
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`the discovery and/or responding to the discovery, Petitioner filed the motion to compel the
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`Respondent who has been acting in good faith and provided all the documents that are in
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`Respondent's possession. (See Exhibits B, C, E, G, H, I, J, and K).
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`32.
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`It is important to note that the Board has repeatedly held that each party and its
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`attorney or other authorized representative has a duty not only to make a good faith effort to
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`satisfy the discovery needs of its adversary, but also to make a good faith effort to seek only such
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`discovery as is proper and relevant to the issues in the case. See Fed. R. Civ. P. 26(g). See e.g.,
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`Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 13 USPQ2d 1719, 1721 n.4
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`(TI AB 1989) (Board warned counsel for opposer that its conduct of discovery in the case was
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`"uncooperative" and "improper" and that any further misconduct may result in the imposition of
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`the estoppel sanction); Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 10
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`USPQ2d 1671, 1675 (TIAB 1988) (in view of parties' impasse, Board was burdened with
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`resolving numerous requests for discovery); Luehrmann v. Kwik Kopy Corp., 2 USPQ2d 1303,
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`1305 (TI AB 1987) (both parties failed to cooperate, thus saddling Board with needless motions);
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`Sentrol, Inc. v. Sentex Systems, Inc., 231 USPQ 666, 667 (TI AB 1986) (prior to seeking Board
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`intervention, parties must narrow amount of disputed requests to reasonable number); Unicut
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`Corp. v. Unicut, Inc., 222 USPQ 341, 344 (TTAB 1984) (failure to cooperate in discovery and
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`comply with Board order resulted in the entry of sanctions in the form of judgment); Medtronic,
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`Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TIAB 1984) (it was clear from number and
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`nature of opposer's discovery requests and applicant's blanket objections thereto that neither
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`party was cooperating). See also C. H Stuart Inc. v. Carolina Closet, lnc.,.213 USPQ 506, 507
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`(TIAB 1980) (opposer's ''voluminous" discovery requests were "oppressive and nothing short
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`of harassment" to applicant); C. H Stuart Inc. v. S.S. Sarna, Inc., 212 USPQ 386, 387 (TIAB
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`1980) (Board granted applicant's motion for protective order; opposer's "boiler-plate" discovery
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`requests designed for an infringement action deemed harassment); Varian Associates v.
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`Fairfield-Noble Corp. , 188 USPQ 581, 584 (TTAB 1975) (applicant's motion to compel denied
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`due to lack of good faith effort to resolve dispute); Tektronix, Inc. v. Tek Associates, Inc., 183
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`USPQ 623 (TIAB 1974); and Gastown Inc. of Delaware v. Gas City, Ltd, 180 USPQ 477
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`(TIAB 1974).
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`33.
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`Here, there is no showing whatsoever that the Respondent acted willfully and
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`contumaciously by failing to timely provide discovery in this case. In fact, the Respondent has
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`acted in good faith and produced all the discovery responses to Petitioner.
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`In light of the
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`foregoing, Petitioner's motion to compel is moot and without basis.
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`IV.
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`CONCLUSION
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`31.
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`For all the foregoing reasons, it is respectfully requested the Board deny
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`Petitioner's motion in its entirety, issue an estoppel sanction against Petitioner, and for such
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`other and further relief as this Board deems equitable.
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`Dated:
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`Bayside, New York
`October 6, 2016
`
`TO: LADAS & PARRY, LLP
`Attorneys for Petitioner
`1040 A venue of the Americas
`New York, New York 10018
`Tel: (212) 708-1920
`
`Yours, etc.
`
`Pete{Sim, Esq.
`SIMV& RECORD, LLP
`Attorneys for Respondent
`42-40 Bell Boulevard, Suite 602
`Bayside, New York 11361
`Tel: (718) 631-7300
`
`

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`CERTIFICATE OF SERVICE
`
`Pei Low, being duly sworn, deposes and says:
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`I am over 18 years of age, I am not a party to the action, and I reside in Queens County in
`the State of New York.
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`I served a true copy of the annexed
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`BRIEF IN OPPOSITION TO PETITIONER'S MOTION TO AMEND CONSOLIDATED
`PETITION TO CANCEL AND TO COMPEL, AND RELATED RELIEF
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`on October 6, 2016,
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`by mailing the same in a sealed envelope, via Priority Mail, overnight, next-day delivery, with
`postage prepaid thereon, in a post office or official depository of the U.S. Postal Service within
`the State of New York, addressed to the last known address of the addressee a5 indicated below:
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`TO:
`
`LADAS & PARRY, LLP
`Attorneys for Petitioner
`1040 Avenue of the Americas
`New York, New York 10018
`Tel: (212) 708-1920
`
`Sworn to before me this
`6th day of October, 2016
`
`Notary Public
`ANCA M. POPA
`NOTARY PUBLIC-STATE OF NEW YORK
`No. 01 P06346205
`Qualified In Queens County
`My Commission Expires August 08, 2020
`
`Ow-Pei Low
`
`

`

`IN THE UNITED STATF.S PATENT AND TRADEMARK omCE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`TIIE RTICE PRESS LLC.
`
`Cancellation No. 92061717
`
`v.
`BEATA SUEBERT,
`
`Petitioner,
`
`ANSWER
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`Registration Nos. 4,541,777
`and 4,532,130
`
`Respo~dent
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`Respondent. Beata Seubert, by and through her undersigned attorneys, as their answer to
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`the Consolidii.ted Petition for Cancellation and counterClaims, alleges as follows:
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`The Respondent is the owner of VITAL FORCE Registration No. 4,541,777 and VITAL
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`FORCE MINERALS Registration No. 4,532,130, in International Class 5 on the Principal
`.
`.
`Register with VITAL FORCE covering ''Nutritional supplements" and VITAL FORCE
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`MINERALS covering ''Nutritional mineral supplements" (collectively hereinafter referred to
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`· "Respondent's Goods") for which registration issued on June 3, 2014 and May 20, 2014,
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`respectively. Contrary to the assertions made by Petitioner, Respondent has been using the
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`Respondent's Goods in commerce as the bona fide use of a mark in the ordinary course of trade
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`pursuant to the Lanham Act The.mark has been placed on the actual goodS and the mark has
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`been affixed to documents associated with ~e goods or their.sale.
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`l.
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`Deny each and every allegation contained in paragraph 1 of the
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`Consolidated Petition for Cancellation, except denies knowledge and information as to
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`whether Petitioner made a VITAL FORCE Application Serial no. 86/461,053 for ''fruit
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`beverages; fruit juices; smoothies; vegetable juices."
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`2.
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`Denies knowledge and information as to each and every allegation
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`contained in paragraph 2 of the Consolidated Petition for Cancellation.
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`3.
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`Deny each and every allegation contained in ~ph 3 of the
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`Consolidated Petition for Cancellation.
`
`4.
`
`Deny each and every allegation contained in paragraph 4 of the
`
`Consolidated Petition for Cancellation.
`
`5.
`
`Deny each and every allegation contained in paragraph 5 of the
`
`Consolidated Petition for Cancellation.
`
`6.
`
`Deny each and.every allegation contained in paragraph 6 of the
`
`Consolidated Petition for Cancellation.
`
`·
`
`7.
`
`Deny each and every allegation contained in paragraph 7 of the
`
`Consolidated Petition for Cancellation.
`
`8.
`
`Deny each and every allegation contained in paragraph 8 of the
`
`Consolidated Petition for Cancellation.
`
`9.
`
`Deny each and every allegation contamed in paragraph 9 ofthe
`
`Consolidated Petition for Cancellation.
`
`10.
`
`Deny each and every allegation contained in paragraph 10 of the
`
`Conselidated·PetitionforCancellatioa· · ·· ····· · ·--·· ···-· · ·· : __ : ... _: ······ ··· ·· .. : · .... : -
`
`I
`
`1.
`I
`
`· -
`
`-
`
`•
`
`.. .. .. _JJ, ____ .. .P~ny_ each and every allegation co:r;i.tained in paragraph 11 of the
`.
`-
`.
`. ..
`
`N •
`
`•
`
`Consolidated Petition for Cancellation.
`
`12.
`
`Deny each and every allegation contained in paragraph 12 of the
`
`Consolidated Petition for Cancellation.
`
`13.
`
`Deny each and every allegation contained in paragraph 13 of the
`
`Consolidated Petition for Cancellation.
`
`

`

`1 -
`
`14.
`
`Admit the allegations contained in paragraph 14 of the Consolidated
`
`Petition for Cancellation.
`
`15.
`
`Deny each and every allegation contained in paragraph 15 of the
`
`Consolidated Petition for Cancellation.
`
`.... .
`
`16.
`
`Deny .knowledge or information s~cient to form a belief as tO the truth
`
`of the allegations contained in paragraph 16 of the Consolidated Petition for Cancellation.
`
`17.
`
`Deny .knowledge or information sufficient to form a belief as to the truth
`
`of the allegations contained in paragraph 17 of the Consolidated Petition for Cancellation.
`
`18.
`
`Deny each and every allegation contained in paragraph 18 of the Petition
`
`...
`
`except to admit that the Respondent has exclusive rights to use of the mark in commerce.
`
`19.
`
`Deny each and every allegation contained in paragraph 19 of the Petition.
`
`As a First Affirmative Defense
`
`The Consolidated Petition for Cancellation fails to state causes of action against the
`
`Respondent
`
`As a Second Affirmative Defense
`
`Petitioner cannot demonstrate nonuse of the mark for three consecutive years by
`
`Respondent since Vital Force Registration No. 4,541,777 and VITAL FORCE MINERALS
`
`RegiStration No. 4,532, 130 owned by Respondent ~ iSS:~ed o~ June 3, 2014. and, May 20, 2<H 4
`
`respectively arid thus, Petitioner cannot demonstrate that three years of nonuse occurred.
`
`As a Third Affirmative Defense
`
`Petitioner cannot establish that Respondent that the use of the mark has been
`
`discontinued with intent not to resume such use. Petitioner cannot demonstrate that Respondent
`
`abandoned the mark since Petitioner cannot prove actual cessation of use as well as intent not to
`
`

`

`resume using the mark in the foreseeable future.
`
`As to the Fourth Affirmative Defense
`
`Respondent was the first to the marketplace to establish exclusive use of the mark.
`
`Respondent was the first to the market with the mark and the use has been continuous and bona
`
`fide.
`
`As to the Fifth Affirmative Defense
`
`R~ent's Registration of a mark offers prima facie evidence that the registrant has
`
`~e exclusive right to use the mark in conunerce.
`
`'YffEREFORE, Respondent den;iands judgment as folJows:
`
`A.
`
`B.
`
`C.
`
`Dismissing the Consolidated Petition for Cance11ation with prejudice;
`
`For the costs and disbursements of this action, including attorneys' fees;
`
`For such other and further relief which to the Court seems just and proper.
`
`Dated: Augllst 3; 20l 5 ·
`Bayside, New York
`
`--···- ·--- - --- ......... -.. .
`
`SIM & RECORD, LLP - ·
`
`P er Sim, Esq.
`4 -40 Bell Boulevard, Suite 602
`Bayside, New York 11361
`Telephone (718) 631-7300
`Facsimile (718) 631-2700
`Attorneys for Respondent
`BEATA SEUBERT
`
`

`

`To:
`
`Ladas & Parry LLP
`Attorneys for Petitioner
`The Juice Press LLC
`1040 Avenue of the Americas
`New York, NY 10018
`(212) 708-1920
`
`I I
`
`I
`
`I l !
`
`

`

`r
`
`AFFIDAVIT OF SERVICE
`
`I hereby certify that a true and complete copy of the foregoing Answer has been served on the
`attorneys for Petitioner, Ladas & Parry LLP, Ralph Cathcart, attorneys for The Juice Press LLC
`by mailing said copy on August 4, 2015, via First Class Mail, postage prepaid to:
`
`Ladas & Parry LLP
`· . Attorneys for Petitioner
`The Juice Press LLC
`1040 Avenue of the Americas
`New York, NY 10018
`
`Dated:
`
`August 4, 2015
`Bayside, New York
`
`Sworn and subscribed before me
`on this 4111
`y August 2015 .
`
`.•.
`
`AncaPopa
`
`

`

`',
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`--------~~-~~-------------------------..:..·-------------~x
`THE JUICE PRESS LLC,
`
`Cancellation No. 92061717
`
`:v.
`BEATA SUEBERT,
`
`Petitioner,
`
`Respondent.
`-----~~~----~--------------------~~----------~-----x
`
`Registration Nos. 4,541,777
`and 4,532,130
`
`Respondent, Beata Seubert, by and through her undersigned attorneys, as their part of
`
`their submiss~ons for di_scovery provides as follows:
`
`The Respondent is the owner of VITAL FORCE Registration No. 4,541,777 and VITAL
`
`FORCE MINERALS Registration No. 4,532,130, in International Class 5 on the Principal
`
`Register with VITAL FORCE covering "Nutritional supplements" and VITAL FORCE
`
`MINERALS covering "Nutritional mineral supplements" (collectively hereinafter referred to
`
`"Respondent's Goods") for which registration issued on June 3, 2014 and May 20, 2014,
`
`respectively.
`
`Attached are the marketing materials that were developed for the products that the
`
`Respondent has and will continue to introduce and offer for sale in commerce as the bona fide
`
`use of a mark in the ordinary course of trade. The mark has been placed on the actual goods and
`
`the mark has been affixed to documents associated with the goods or their sale .
`
`. 1-'i:.
`
`

`

`Dated: December 30, 2015
`Bayside, New York
`
`,LLP
`
`Pet Sim, Esq.
`42 0 Bell Boulevard, Suite 602
`Bayside, New Yorlc 11361
`Telephone (718) 631-7300
`Facsimile (718) 631-2700
`Attorneys for Respondent
`. BEATA SEUBERT
`
`· To:
`
`·'
`
`Ladas & Parry LLP
`Attorneys for Petitioner
`The Jtiice Press. LLC ·
`1040Avenue.ofthe Americas,~ Jloby
`New York, NY 10018
`(212) 708-1920
`
`.... ··- - __ .....
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`

`AFFIDAVIT OF SERVICE
`
`I hereby certify that a tru_e and complete copy