Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA848820
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`Filing date:
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`09/27/2017
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`92065406
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`Party
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`Correspondence
`Address
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`Defendant
`Pharmadel LLC
`
`ROBERT R JIMENEZ
`ESPINOSA TRUEBA MARTINEZ PL
`1428 BRICKELL AVE SUITE 100
`MIAMI, FL 33131
`UNITED STATES
`Email: rjimenez@etlaw.com, jespinosa@etlaw.com, lmansen@etlaw.com,
`zsanchez@etlaw.com, trademarks@etlaw.com
`
`Submission
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`Motion for Summary Judgment
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`Yes, the Filer previously made its initial disclosures pursuant to Trademark Rule
`2.120(a); OR the motion for summary judgment is based on claim or issue pre-
`clusion, or lack of jurisdiction.
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`The deadline for pretrial disclosures for the first testimony period as originally set
`or reset: 02/18/2018
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Robert R. Jimenez
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`rjimenez@etlaw.com
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`/s/Robert R. Jimenez
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`09/27/2017
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`Attachments
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`Pharmadel RENEWED MSJ 9.27.2017.pdf(257228 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
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`
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`In the Matter of:
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`4,581,604
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`Registration No.:
`August 5, 2014
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`Registered:
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`KOFAL
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`Trademark:
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`__________________________________________
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`Plaza Izalco, Inc.,
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`Petitioner,
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`v.
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`Pharmadel, LLC,
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`Registrant.
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`__________________________________________)
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`Cancellation No. 92065406
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`
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`REGISTRANT’S RENEWED1 MOTION FOR SUMMARY JUDGMENT
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`
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`Registrant, Pharmadel, LLC (“Registrant”), by and through undersigned counsel and
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`pursuant to Fed. R. Civ. P. 56 and TBMP 528, hereby moves for entry of summary judgment
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`against Petitioner Plaza Izalco, Inc. (“Petitioner”), and in support states as follows:
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`I.
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`INTRODUCTION AND BACKGROUND.
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`On December 2, 2008, Registrant was granted Registration Ser. No. 3540972 for the Mark
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`KOFAL-T in International Class 005 for analgesic balm. On July 10, 2013, Registrant filed an
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`application for the Mark KOFAL in International Class 005 on the basis of Lanham Act § 1(a).
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`The associated goods for Registrant’s KOFAL Mark are Adhesive bandages; Adhesive bands for
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`medical purposes; Analgesic and muscle relaxant pharmaceutical preparations; Analgesic balm;
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`Anti-inflammatory gels; Anti-inflammatory salves; Anti-inflammatory sprays; Balms for medical
`
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`1 The instant Motion is filed as a “Renewed” Motion for Summary Judgment because the Motion was previously filed
`during the suspension of this proceeding, and an Order was entered on May 11, 2017 stating that because the Motion
`and its corresponding Notice of Reliance were filed during suspension, they would not be considered by the Board.
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`
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`1
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`

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`
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`purposes; Balms for pharmaceutical purposes; Curare for use as a muscle relaxant; Herbal
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`topical creams, gels, salves, sprays, powder, balms, liniment and ointments for the relief of aches
`
`and pain; Medicaments for promoting recovery from tendon and muscle injuries and disorders
`
`and sports related injuries; Multipurpose medicated antibiotic cream, analgesic balm and
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`mentholated salve; Muscle relaxants; Sports cream for relief of pain; Therapeutic spray to sooth
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`and relax the muscles. KOFAL matured to registration on August 4, 2014.
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`On August 6, 2013, Applicant filed Application Ser. No. 86029611 for the Mark COFAL
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`in International Class 005 on the basis of Lanham Act § 1(a). The associated goods for the COFAL
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`Mark were described as analgesic and muscle relaxant pharmaceutical preparations; Analgesic
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`balm; Analgesic preparations; Curare for use as a muscle relaxant; Medicaments for promoting
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`recovery from tendon and muscle injuries and disorders and sports related injuries; Multipurpose
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`medicated antibiotic cream, analgesic balm and mentholated salve; Muscle relaxants. On
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`November 25, 2013, the Examiner issued an Office action refusing registration on the grounds that
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`COFAL creates a likelihood of confusion with Registrant’s Mark KOFAL-T, and the Examiner
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`also advised of Registrant’s pending application for KOFAL, which preceded Applicant’s
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`application. On April 10, 2014, the Examiner issued a suspension notice due to the pending
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`KOFAL application and an Opposition Action initiated by Applicant (Opposition No. 91214315)
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`regarding Application Ser. No. 85821526 (which was abandoned). Ultimately, the Examiner
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`issued a final Office action on January 30, 2016, refusing registration on the grounds that
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`Applicant’s Mark COFAL is confusingly similar to Registrant’s KOFAL-T and KOFAL.
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`Applicant appealed, ultimately moving for suspension of said proceeding upon filing of the instant
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`cancellation action on February 9, 2017.
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`2
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`In the instant case, Applicant argues that KOFAL should be cancelled because it creates a
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`likelihood of confusion with COFAL, arguing also that KOFAL is primarily merely a surname.
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`Applicant’s cancellation action is wholly silent with regard to KOFAL-T, likely because TBMP
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`307 and Lanham Act § 14 (15 U.S.C. § 1064) prevent cancellation of said mark on the grounds
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`alleged by Applicant against KOFAL. For the reasons discussed infra, summary judgment should
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`be entered on behalf of Registrant because the pre-existing registration for KOFAL-T renders the
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`instant case futile, and Applicant cannot be harmed as a matter of law because of the pre-existing
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`registration of KOFAL-T.
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`II.
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`LEGAL STANDARD FOR SUMMARY JUDGMENT.
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`
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`“37 CFR§ 2.116(a), provides that “[e]xcept as otherwise provided, and wherever applicable
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`and appropriate, procedure and practice in inter partes proceedings shall be governed by the
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`Federal Rules of Civil Procedure.” TBMP 502.01. Section 14 of the Lanham Act (15 U.S.C. §
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`1064) sets forth the requirements with respect to the standing of a petitioner seeking to cancel a
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`registration of a mark. “For a petitioner to prevail in a cancellation proceeding, it is incumbent
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`upon that party to show (1) that it possesses standing to challenge the continued presence on the
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`register of the subject registration and (2) that there is a valid ground why the registrant is not
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`entitled under law to maintain the registration.” See A.V. Brands, Inc. v. Spirits International,
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`B.V., 2009 TTAB LEXIS 199 (TTAB 2009) (citing Lipton Industries, Inc. v. Ralston Purina
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`Company, 670 Fed.2d 1024, 213 USPQ 185, 187 (CCPA 1982). See also, TBMP 503.02.
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`“Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and
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`admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
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`any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
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`Civ. P. 56(c). See also, TBMP 528. “The motion for summary judgment is a pretrial device to
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`3
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`dispose of cases in which ‘the pleadings, the discovery and disclosure materials on file, and any
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`affidavits show that there is no genuine issue as to any material fact and that the movant is entitled
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`to judgment as a matter of law.’” TBMP 528.01. “The purpose of the motion is judicial economy,
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`that is, to avoid an unnecessary trial where there is no genuine issue of material fact and more
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`evidence than is already available in connection with the summary judgment motion could not
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`reasonably be expected to change the result in the case.” Id. “The burden of the moving party
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`may be met by showing “that there is an absence of evidence to support the nonmoving party’s
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`case.” Id. “A party moving for summary judgment should specify, in its brief in support of the
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`motion, the material facts that are undisputed.” Id.
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`A. Statement of Undisputed Facts.
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`1.
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`On December 2, 2008, Registrant was granted Registration Ser. No. 3540972 for
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`the Mark KOFAL-T in International Class 005 for analgesic balm.
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`2.
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`On July 10, 2013, Registrant filed an application for the Mark KOFAL in
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`International Class 005 on the basis of Lanham Act § 1(a).
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`3.
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`The associated goods for Registrant’s KOFAL Mark are Adhesive bandages;
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`Adhesive bands for medical purposes; Analgesic and muscle relaxant pharmaceutical
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`preparations; Analgesic balm; Anti-inflammatory gels; Anti-inflammatory salves; Anti-
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`inflammatory sprays; Balms for medical purposes; Balms for pharmaceutical purposes; Curare
`
`for use as a muscle relaxant; Herbal topical creams, gels, salves, sprays, powder, balms, liniment
`
`and ointments for the relief of aches and pain; Medicaments for promoting recovery from tendon
`
`and muscle injuries and disorders and sports related injuries; Multipurpose medicated antibiotic
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`cream, analgesic balm and mentholated salve; Muscle relaxants; Sports cream for relief of pain;
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`Therapeutic spray to sooth and relax the muscles.
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`
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`4
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`

`
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`4.
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`5.
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`KOFAL matured to registration on August 4, 2014.
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`On August 6, 2013, Applicant filed Application Ser. No. 86029611 for the Mark
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`COFAL in International Class 005 on the basis of Lanham Act § 1(a).
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`6.
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`The associated goods for the COFAL Mark were described as analgesic and muscle
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`relaxant pharmaceutical preparations; Analgesic balm; Analgesic preparations; Curare for use
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`as a muscle relaxant; Medicaments for promoting recovery from tendon and muscle injuries and
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`disorders and sports related injuries; Multipurpose medicated antibiotic cream, analgesic balm
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`and mentholated salve; Muscle relaxants.
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`7.
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`On November 25, 2013, the Examiner issued an Office action refusing registration
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`on the grounds that COFAL creates a likelihood of confusion with Registrant’s Mark KOFAL-T,
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`and the Examiner also advised of Registrant’s pending application for KOFAL, which preceded
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`Applicant’s application.
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`8.
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`On April 10, 2014, the Examiner issued a suspension notice due to the pending
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`KOFAL application and an Opposition Action initiated by Applicant (Opposition No. 91214315)
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`regarding Application Ser. No. 85821526 (which was abandoned).
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`9.
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`The Examiner issued a final Office action on January 30, 2016, refusing registration
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`on the grounds that Applicant’s Mark COFAL is confusingly similar to Registrant’s KOFAL-T
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`and KOFAL.
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`10.
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`Applicant moved for suspension of said proceeding upon filing of the instant
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`cancellation action on February 9, 2017.
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`5
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`III. ARGUMENT
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`THE PRE-EXISTING REGISTRATION OF KOFAL-T BARS THE
`CANCELLATION ACTION AS A MATTER OF LAW.
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`A.
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`Applicant has no standing because it has no personal or direct stake.
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`Under TBMP 309.03(b), “any person who believes it is or will be damaged by the
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`registration of a mark has standing to file a complaint.” Although at the pleading stage, “all that
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`is required is that a plaintiff allege facts sufficient to show a ‘real interest’ in the proceeding, and
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`a ‘reasonable basis’ for its belief that it would suffer some kind of damage,”2 such allegations
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`“must later be affirmatively proved by the plaintiff.” Id. Moreover, courts reject the premise that
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`in a cancellation action “a petitioner should be found to have standing by virtue of its complaint
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`alone.” Lipton Indus. v. Ralston Purina Co., 670 F.2d 1024, 1029 (C.C.P.A. 1982). In this matter,
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`although the cancellation action filed by Applicant is against the mark KOFAL, because COFAL
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`can never register as a result of the likelihood of confusion with the incontestable KOFAL-T
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`(discussed infra), Applicant cannot have a “direct and personal interest” in the outcome of this
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`action. As such, Applicant has no standing because it cannot show “a direct injury to itself,”3 and
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`there is no controversy sufficient for Applicant to maintain the action. Plainly, as a result of the
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`pre-existing and subsisting registration for KOFAL-T, Applicant cannot by definition have a
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`personal stake in the outcome of the proceeding given that it cannot be impacted by maintenance
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`of KOFAL. See e.g., Ritchie v. Simpson, 170 F. 3d 1092 (Fed. Cir. 1999) (explaining standing in
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`the context of Board actions and stating that “[t]he crux of the matter is not how many others share
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`2 Id.
`3 Ritchie v. Simpson, 170 F. 3d 1092, 1096 (Fed. Cir. 1999).
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`6
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`one’s belief that one will be damaged by the registration, but whether that belief is reasonable and
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`reflects a real interest in the issue”).
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`B. Morehouse derails Applicant’s cancellation action.
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`“The Morehouse defense, an equitable affirmative defense… is based on the theory that an
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`opposer cannot be injured by the registration sought because there already exists a similar
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`registration and, therefore, an additional registration for the same or substantially similar mark and
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`goods or services can no more injure the plaintiff than the prior registration.” See Mag Instrument,
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`Inc. v. The Brinkmann Corporation, 2010 TTAB LEXIS 322, *23 (TTAB 2010). “It is well settled
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`that ownership of a subsisting registration is a proper defense to a cancellation proceeding when
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`the registration is for the same or substantially identical mark for the same or substantially identical
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`goods or services. See Dimitri Valiant v. Carl Karcher Enterprises, Inc., 1984 TTAB LEXIS 97
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`(TTAB 1984) (warning that summary judgment would be entered if the petitioner failed to petition
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`for cancellation of the pre-existing registrations). See also, Morehouse Manufacturing
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`Corporation v. J. Strickland & Co., 407 F 2d 881 (CCPA 1969)). The Morehouse defense is based
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`on the theory “that a party cannot be further injured by the registration sought or already owned
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`because there already exists a substantially similar registration and, therefore, an additional
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`registration for the same mark for substantially identical goods and services can no more injure
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`the plaintiff than the subsisting prior registration.” The Solomon-Page Group LLC and The
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`Clinical Resource Network LLC v. Clinical Resources Network, 2012 TTAB LEXIS 124 (TTAB
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`2012). “These situations should be summarily dealt with and the plaintiff should be precluded
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`from challenging a new application if the defendant owns a registration for a substantially similar
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`mark for substantially similar goods.” See Carl Karcher Enterprises, Inc. v. Gold Star Chili, Inc.,
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`1983 TTAB LEXIS 74 (TTAB 1983) (entering summary judgment as a result of the Morehouse
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`7
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`defense and because the opposer failed to file a petition to cancel the pre-existing registration).
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`“No added damage results…from the second registration.” Id.
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`In the instant case, Applicant’s cancellation action is based upon an alleged likelihood of
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`confusion between the registered mark KOFAL and the applied-for mark, COFAL, and Applicant
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`also argues that KOFAL is primarily merely a surname. Even overlooking the spurious nature of
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`such a position, the entire cancellation action fails because Applicant cannot be damaged by
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`KOFAL’s listing on the Principal Register due to the pre-existing registration for KOFAL-T, also
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`owned by Registrant. As discussed below, the two requirements for application of the Morehouse
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`defense –substantially identical marks and substantially identical goods—are satisfied as a matter
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`of law. .
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`
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`i. The marks are all substantially identical.
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` “For purposes of the Morehouse defense, two marks are ‘substantially identical’ when
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`they are either literally identical or legally equivalent.” See O-M Bread Inc. v. United States
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`Olympic Committee, 65 F.3d 933, 36 USPQ2d 1041 (Fed. Cir. 1995) (OLYMPIC and OLYMPIC
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`KIDS are neither the same nor legally equivalent). In the instant case, the Marks KOFAL and
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`KOFAL-T are substantially identical because they share the same commercial impression and the
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`differences between them are insignificant. See Dimitri Valiant v. Carl Karcher Enterprises, Inc.,
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`1984 TTAB LEXIS 97 (TTAB 1984).
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`In Dimitri Valiant, the term “star” was held to be “the dominant feature” of the marks
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`STAR HAMBURGER and STAR CHEESEBURGER in much the same way as the dominant
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`portion of the KOFAL and KOFAL-T marks are the word “kofal.” This Board also held in Dimitri
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`Valiant that the addition of the word “cheese” was insignificant, and in this matter the “-T”
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`represents an insignificant difference between KOFAL and KOFAL-T. Thus, the Morehouse
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`8
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`rationale is applicable because the KOFAL mark to be cancelled is substantially identical to the
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`subsisting and pre-existing registration for KOFAL-T, meaning Applicant cannot be damaged by
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`maintenance of the KOFAL registration. Moreover, and as the Examiner determined through
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`denial of the application for COFAL, there is a likelihood of confusion between COFAL on the
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`one hand and both KOFAL and KOFAL-T on the other, satisfying the first of the two Morehouse
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`requirements.
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`The Board should agree with the conclusion previously reached by the Examiner regarding
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`all three marks relevant here: “[a]ccordingly, it is the examining attorney’s opinion that the marks
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`are similar.” See Jan. 30, 2016 Final Office action in Application No. 86029611 for COFAL, p.
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`3.
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`
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`ii. The goods are substantially identical or substantially similar between
`Registrant’s own marks and Applicant’s mark.
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`The Examiner who refused registration of Applicant’s COFAL mark considered the
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`relatedness of all the goods at issue in this matter, finding they were all substantially the same or
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`related in a way that bars registration of Applicant’s mark COFAL (which evinces that Applicant
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`cannot be injured by maintenance of KOFAL given the unchallenged KOFAL-T). The Examiner
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`stated as follows in the Final Office action:
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`In this case, the identification set forth in the application and registration has no restrictions
`as to nature, type, channels of trade, or classes of purchasers. Therefore, it is presumed that
`these goods and/or services travel in all normal channels of trade, and are available to the
`same class of purchasers. Further, the registrant uses broad wording to describe the goods
`and this wording is presumed to encompass all goods of the type described, including those
`in applicant’s more narrow identification. The registrant’s broad identification of “balms
`for medical purposes” and “balms for pharmaceutical purposes” is seen to include the
`applicant’s analgesic balm. Similarly, the applicant’s broad identification of “analgesic
`preparations” is seen to include goods such as the registrant’s analgesic balm and analgesic
`muscle relaxant pharmaceutical preparations. In addition, see the attached evidence
`illustrating a producer of both bandages and analgesic cream.
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`9
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`A search of Office records illustrates a more specific connection between the
`identified goods. The trademark examining attorney has attached evidence from the
`USPTO’s X-Search database consisting of a number of third-party marks registered for use
`in connection with the same or similar goods as those of both applicant and registrant in
`this case. This evidence shows that the goods listed therein, namely, “analgestic
`preparations” and “analgesic balm” or “adhesive bandages” goods, are of a kind that
`may emanate from a single source under a single mark. See In re Aquamar, Inc., 115
`USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re Mucky Duck Mustard Co., 6 USPQ2d
`1467, 1470 n.6 (TTAB 1988)); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-
`86 (TTAB 1993); TMEP §1207.01(d)(iii).
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`See Jan. 30, 2016 Final Office action in Application No. 86029611 for COFAL, p. 3 (emphasis
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`added). As considered below, the Examiner was correct.
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`“The Morehouse defense requires the goods to be ‘identical, substantially the same, or so
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`related so as to represent in law a distinction without a difference.” See Mag Instrument, Inc. v.
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`The Brinkmann Corporation, 2010 TTAB LEXIS 322, *26 (TTAB 2010). This is what the
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`Examiner
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`found and what Registrant hopes
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`the Board
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`rules
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`in
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`this matter.
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`Registration for KOFAL-T is for analgesic balm in International Class 005, and Registrant’s
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`KOFAL and Applicant’s COFAL similarly list analgesic balm as a category of goods in the same
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`class. Notably, the goods listed by Applicant for its mark are Analgesic and muscle relaxant
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`pharmaceutical preparations; Analgesic balm; Analgesic preparations; Curare for use as a
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`muscle relaxant; Medicaments for promoting recovery from tendon and muscle injuries and
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`disorders and sports related injuries; Multipurpose medicated antibiotic cream, analgesic balm
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`and mentholated salve; Muscle relaxants also in International Class 005. Again, the Examiner
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`found that these goods are related as evidence shows they emanate from a single source and are
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`connected. The Examiner is correct.
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`10
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`The aforementioned goods listed for both COFAL and KOFAL4 are indeed related to those
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`in the registration for KOFAL-T because consumers “are likely to believe that the [goods],
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`similarly marked, come from the same source, or are somehow connected with or sponsored by a
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`common company.” See Daddy’s Junky Music Stores, Inc. v. Big Daddy's Family Music Ctr., 109
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`F.3d 275 (6th Cir. 1997). As such, the pre-existing KOFAL-T registration bars Applicant’s
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`cancellation action under Morehouse and its progeny because, as the Examiner also pointed out
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`supra, the goods listed for KOFAL and KOFAL-T qualify as substantially identical and related,
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`preventing COFAL from registering as a result.
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`As set forth above, KOFAL-T blocks registration of COFAL under every scenario,
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`showcasing that the Morehouse Defense and Doctrine pled in this case is sound, that Applicant
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`can have no interest in the maintenance of the registration for KOFAL, that Applicant has no
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`standing given the inability to obtain relief in this action, and that summary judgment is ripe for
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`Applicant given the absence of any genuine issues of material fact.
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`WHEREFORE, for the reasons set forth above, Registrant prays the Board enter summary
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`judgment in favor of Registrant and award Registrant any and all relief that is just and proper.
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`4 The goods listed in the registration for KOFAL are Adhesive bandages; Adhesive bands for
`medical purposes; Analgesic and muscle relaxant pharmaceutical preparations; Analgesic balm;
`Anti-inflammatory gels; Anti-inflammatory salves; Anti-inflammatory sprays; Balms for medical
`purposes; Balms for pharmaceutical purposes; Curare for use as a muscle relaxant; Herbal
`topical creams, gels, salves, sprays, powder, balms, liniment and ointments for the relief of aches
`and pain; Medicaments for promoting recovery from tendon and muscle injuries and disorders
`and sports related injuries; Multipurpose medicated antibiotic cream, analgesic balm and
`mentholated salve; Muscle relaxants; Sports cream for relief of pain; Therapeutic spray to sooth
`and relax the muscles.
`
`
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`11
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`Dated: September 27, 2017.
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`Respectfully Submitted,
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`ESPINOSA MARTINEZ, P.L.
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`By: /s/ Robert R. Jimenez
`
`Jorge Espinosa
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`Florida Bar No. 779032
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`jespinosa@etlaw.com
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`Robert R. Jimenez
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`Florida Bar No. 72020
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`rjimenez@etlaw.com
`1428 Brickell Ave., Suite 100
`Miami, FL 33131
`Tel: 305-854-0900
`Fax: 855-854-0900
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`CERTIFICATE OF SERVICE
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`As per TBMP R. 113, I hereby certify that on September 27, 2017 a true copy of this
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`document was served via email upon the following attorneys of record for Applicant: Robert
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`Powers, 8133 Leesburg Pike, Suite 130, Vienna, Virginia 22182, rpowers@mcplegal.com,
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`tpusch@mcplegal.com.
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`By: /s/ Robert R. Jimenez
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`Robert R. Jimenez
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`12
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