Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1003365
`
`Filing date:
`
`09/19/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92071454
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Defendant
`Richardâ##s Rainwater
`
`DAVID E. ARMENDARIZ
`PIRKEY BARBER PLLC
`1801 EAST 6TH STREET, SUITE 300
`AUSTIN, TX 78702
`UNITED STATES
`akuhn@pirkeybarber.com, darmendariz@pirkeybarber.com,
`eolson@pirkeybarber.com, tmcentral@pirkeybarber.com
`512-322-5200
`
`Other Motions/Papers
`
`David E. Armendariz
`
`akuhn@pirkeybarber.com, darmendariz@pirkeybarber.com,
`eolson@pirkeybarber.com, tmcentral@pirkeybarber.com
`
`/David E. Armendariz/
`
`09/19/2019
`
`Motion for a More Definite Statement.pdf(107057 bytes )
`Exhibit A.pdf(6180316 bytes )
`Exhibit B.pdf(1772069 bytes )
`Exhibit C.pdf(260918 bytes )
`Exhibit D.pdf(344984 bytes )
`Exhibit E.pdf(1555653 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`THIS CAN BE DONE, LLC,
`
`Cancellation No.: 92071454
`
`
`
`
`
`
`
`Petitioner,
`
`Mark: CLOUD JUICE
`
`v.
`
`Registration No.: 4,770,355
`
`
`
`RICHARD’S RAINWATER, LLC,
`
`Registered: July 7, 2015
`
`
`
`
`
`
`
`
`
`
`Registrant.
`
`MOTION FOR A MORE DEFINITE STATEMENT
`
`Pursuant to Rule 12(e) of the Federal Rules of Civil Procedure and Section 505 of the
`
`Trademark Trial and Appeal Board Manual of Procedure (“TBMP”), Registrant Richard’s
`
`Rainwater, LLC moves the Board to order Petitioner This Can Be Done, LLC (“Petitioner” or
`
`“TCBD”) to provide a more definite statement in the form of an Amended Petition for Cancellation
`
`regarding the basis for its claim of standing.
`
`BACKGROUND
`
`According to Petitioner, the mere prospect that Registrant’s CLOUD JUICE registration
`
`(the “Registration”) might be cited by a trademark examiner against its as-yet hypothetical
`
`trademark application is enough to give it standing to seek cancellation of the Registration.
`
`However, even ignoring the fact that TCBD’s claimed interest in the action and perceived potential
`
`harm is entirely theoretical, the recitations in the Petition obscure critical facts regarding TCBD’s
`
`goods that are potentially dispositive on the question of standing. TCBD claims that it intends to
`
`file a trademark application for CLOUD WATER in Class 032 only for “bottled drinking water,”
`
`
`
`1
`
`

`

`but it is clear from sources referenced by TCBD in its Petition that the goods that TCBD sells and
`
`would have to identify in its eventual application consist not of plain drinking water, but of
`
`drinking water infused with cannabidiol, commonly known as “CBD.” Because trademarks for
`
`ingestible CBD products cannot be registered with the U.S. Patent and Trademark Office (“PTO”),
`
`Petitioner would be unable to register the mark CLOUD WATER for its CBD products
`
`notwithstanding the Registration, and as such, Petitioner can point to no harm caused by the
`
`continued registration of Registrant’s mark. However, because the Petition as presented lacks
`
`specificity regarding the goods for which Petitioner intends (and intended at the time of filing its
`
`Petition) to seek registration, Registrant is unable to fully and fairly respond in good faith to its
`
`claims, including its claim of standing.
`
`Accordingly, Registrant moves the Board to order Plaintiff to describe with specificity the
`
`goods for which it intends to seek registration of the purported mark CLOUD WATER, including
`
`whether such goods include ingestible CBD.
`
`ARGUMENT
`
`
`
`A motion for a more definite statement is appropriate where a pleading is “so vague or
`
`ambiguous that the movant cannot make a responsive pleading in good faith or without prejudice
`
`to itself.” TBMP § 505.01. “The motion must point out the defects complained of, specify the
`
`details which the movant desires to have pleaded, and indicate that the movant is unable to frame
`
`a responsive pleading without the desired information.” Id.
`
`Petitioner claims that it has a real interest in seeking cancellation of the Registration, and
`
`thus standing to bring this action, because it intends to file an application to register CLOUD
`
`WATER in Class 32, which Petitioner argues is similar to Registrant’s CLOUD JUICE mark. See
`
`1 TTABVUE ¶¶ 11, 13. Petitioner also claims that the goods it offers under its purported mark
`
`
`
`2
`
`

`

`are similar to the goods listed in the Registration, and that it “anticipates that the [PTO] will issue
`
`an Office action [sic] refusing registration . . . on the basis of likelihood of confusion with
`
`Respondent’s registered CLOUD JUICE mark.” Id. ¶ 13. Petitioner describes its own goods
`
`merely as “bottled water” and “bottled drinking water.” See, e.g., id. ¶¶ 5, 10, 11 However,
`
`Petitioner does not identify with specificity the description of goods for which it intends to apply
`
`to register its purported mark. This is critical because it is undeniable that what Petitioner sells
`
`under its purported mark is not ordinary bottled drinking water, but water infused with CBD.
`
`CBD “is a chemical constituent of the cannabis plant that is encompassed within the
`
`[Controlled Substances Act]’s definition of marijuana.” See USPTO, Examination Guide 1-19,
`
`Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment
`
`of
`
`the
`
`2018
`
`Farm
`
`Bill,
`
`May
`
`2,
`
`2019,
`
`available
`
`at
`
`https://www.uspto.gov/sites/default/files/documents/Exam%20Guide%201-19.pdf. According to
`
`the examination guide, while some CBD products may be lawful, “registration of marks for foods,
`
`beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful
`
`under the [Federal Food Drug and Cosmetic Act], even if derived from hemp, as such goods may
`
`not be introduced into interstate commerce.” Id. (emphasis added).
`
`TCBD conveniently limits mention in its Petition of the fact that its business is offering
`
`ingestible food, beverage, and supplements containing CBD for which registration is unavailable
`
`according to the Examination Guide, including its “Cloud Water” bottled water. However, in
`
`touting its press coverage, TCBD references articles about its “Cloud Water” product in
`
`publications such as “BevNET, TrendHunter, Culinary Epicenter, and High Sobriety.1” 1
`
`
`1 This is likely a typo and intended as a reference to the publication “High Snobiety”
`(https://www.highsnobiety.com/), as TCBD’s website links to two articles from that site. See
`https://cloudwaterbrands.com/press (screenshot attached as Exhibit D).
`
`
`
`3
`
`

`

`TTABVUE ¶ 7. Attached as Exhibit A are articles from those publications about TCBD’s “Cloud
`
`Water” product, all of which make clear that the product is a CBD beverage.2 A review of social
`
`media for “Cloud Water,” which is referenced in Paragraph 6 of the Petition, confirms the same.
`
`See Exhibit B (screenshot of https://www.facebook.com/cloudwatercbd/) and Exhibit C
`
`(screenshot
`
`of
`
`https://www.instagram.com/cloudwatercbd/),
`
`both
`
`at
`
`the
`
`username
`
`@cloudwatercbd. Additionally, all of the TCBD’s applications mentioned in Paragraph 12 of the
`
`Petition identify ingestibles containing CBD in their descriptions of goods.3
`
`If TCBD’s intended goods for its hypothetical application consist of ingestible CBD
`
`products—as all reasonable evidence and inferences suggest—then it is the nature of its own goods
`
`that would prevent registration of its mark, and its claim that the CLOUD JUICE Registration
`
`causes it harm is wholly without merit. Because TCBD’s mark would be unregistrable regardless
`
`of the status of the Registration, TCBD would have no real interest in seeking cancellation of the
`
`Registration, and thus no standing. However, the current lack of specificity in the Petition
`
`regarding TCBD’s goods disguises the true nature of its products, unfairly preventing Registrant
`
`from adequately responding to the pleading in good faith.
`
`CONCLUSION
`
`Given the PTO’s clear guidance on ingestible CBD products, it is understandable that
`
`TCBD would seek to obscure the fact that its “Cloud Water” products contain CBD, as that
`
`completely negates TCBD’s stated basis for standing in this action. However, TCBD’s tactics in
`
`this regard make it impossible for Registrant to adequately respond to its allegations, including its
`
`
`2 TCBD’s own website at https://cloudwaterbrands.com/faq explains that “Cloud Water is a
`delicious sparkling CBD beverage” and that “each bottle contains 25mg of CBD.” Screenshots
`from TCBD’s website for “Cloud Water” are attached as Exhibit E.
`3 And of course, it is difficult to ignore the fact that the acronym for Petitioner’s name, “This Can
`Be Done,” contains the letters “CBD.”
`
`
`
`4
`
`

`

`allegation that it has standing to bring this action at all.
`
`Based on the foregoing, Registrant respectfully requests that the Board order TCBD to
`
`amend its pleading to state with specificity the goods it sells and intended, at the time it filed its
`
`Petition, to cover in its trademark application for the mark CLOUD WATER, including whether
`
`such goods contain CBD. Registrant further requests that the Board grant any and all other relief
`
`to which it deems Registrant entitled, including, in the alternative to an order for a more definite
`
`statement, dismissal of the action for lack of standing.
`
`
`
`This the 19th day of September, 2019.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted
`
`
`
`/David E. Armendariz/
`Anna Kuhn
`David E. Armendariz
`PIRKEY BARBER PLLC
`1801 East 6th Street, Suite 300
`Austin, Texas 78702
`Telephone: (512) 482-5223
`Facsimile: (512) 322-5201
`akuhn@pirkeybarber.com
`darmendariz@pirkeybarber.com
`
`
`CERTIFICATE OF SERVICE
`
`
` I certify that a copy of this document was served by email on September 19, 2019 on
`Petitioner’s counsel of record:
`
`Olivera Medenica
`DUNNINGTON BATHOLOW & MILLER LLP
`230 Park Avenue, 21st Floor
`New York, NY 10169
`omedenica@dunnington.com
`jfrank@dunnington.com
`Idale@dunnington.com
`
`
`
`
`
`
`
`
`/David E. Armendariz/
`David E. Armendariz
`
`5
`
`

`

`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`BevNET Article
`
`BeVNET Article
`
`

`

`Title: Cloud Water CBD | BevNET.com Product Reviews | BevNET.com
`Lin k: https :yiylwww . bevnet.comfr'eviewsy’cloud-water
`
`
`BEVNE Io
`NEWS REVIEWS PDDCAST EVENTS JOBS SCHCICIL MAGAIINE DIRECTORIES |
`f E]
`if n | Q :
`
`JUST ANNDUNCED
`
`From Startup to National Player, Brew Dr. Kombucha CEO to Speak at BevNET Live This December - Learn More so»
`
`TAKING APPLICATIONS
`
`NEW BEVERAGE SNOWOOWN
`
`DEC. 9 8-10 I SANTA MONICA. CA
`
`:EP
`
`HOME l REvIEWE. a torus wrote {as
`
`CID "[l wate r c B D
`
`by Clnurlwater OBI]
`
`é? https:lr'cloudwaterbrandscoml
`
`fl Edit Contact info
`
`
`
`all!
`
`B EVE RAG E IN DU STRY JOBS
`
`Associate Brewmaster - Rogue Ales at Spirits
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`
`On Premise Beer Sales Representative - San B...
`
`I: LOU D WAT E R B R A H D 5
`
`Cin Premise Beer Sales Representative . San B...
`
`Share this Page: n n a n a
`
`NEWEST REll'IEl'll
`
`ALL PRODUCTS
`
`ALL IMAGES
`
`BRAND DETAILS
`
`ORDER ONLINE
`
`Operations Manager — Yai’s Thai
`
`View All - 442 Jobs
`
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`
`Subscribe to BevNET's Daily Newsletter
`
`Review: Cloud Water Natural Sparkling CBD
`
`Posted: Mar 26. 2019 at 12:29 PM [Last Updated: Mar 26. 2019 at 2:01 PM}
`
`Covers Products: Blood Orange lit Coconut. Grapefruit Gr Mint Basil
`
`«r I
`
`Cloud Water is a line of sparkling water beverages enhanced with 25 mg of CBD. The product line currently consists of
`
`two flavors. Grapefruit 8r Mint 3: Basil and Blood Orange 8; Coconut. both of which are lightly sweetened with raw honey.
`
`As we do with any brand that’s jumping into the CBD beverage
`
`game. were always asking ourselves whether or not the product has
`
`merit beyond the ingredient itself. After all. there will eventually be a
`
`point when adding CBD isn’t an advantage or an excuse for poor
`
`flavot
`
`Fortunately. Cloud Water passes this test with flying colors. Both
`
`products are well crafted and enjoyable. with a flavor profile that sits
`
`somewhere between a sparkling water and soda. With 40 calories
`
`and 10 g of sugar per bottle. the mellow sweetness and flavor note of
`
`honey provide a very nice backdrop to each flavor.
`
`Both varieties start with raw honey and then feature a touch of lemon
`
`I.
`
`'I l
`
`ire
`~
` £1
`
`-
`r
`_- 7- .«
`
`
`RECENT ARTICLES
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`juice {percentage not disclosed]: and natural flavors. We particularly enjoyed the summery flavor of Grapefruit 8: Mint 8:
`
`Little West Launches :Clean Labei" CBDrlniused...
`
`Basil. which has some impressively accurate flavor. Blood Orange & Coconut is quite good as well, although it's more
`
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`clearly from flavoring as coconut is tough to nail.
`
`What we ultimately really like about these products is that they provide sweetness without adding zero calorie sweeteners
`
`view All
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`or going beyond the modest level of calories and sugar. This creates a really clean and simple formulation that is a nice fit
`
`for a CBD drink since this is a category that is very much skewing towards natural products.
`
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`Exploring risk
`and upside in
`food & beverage
`
`Cln the outside. Cloud Water has taken a pretty unique twist on a classic 12 oz. glass soda bottle. The brand has painted
`
`the bottle glossy white to the point where it’s clearly opaque and you cannot see the liquid inside. The branding is clean
`
`and simple. using an image of a cloud with a single oversized raindrop as its logo. Finally. there's some text. which is
`
`simple. intuitive. and easy on the eyes. We’re fans of what Cloud Water has created.
`
`in conclusion. Cloud Water is a very worthy and well-executed product that's launching in a category where a lot of CBD
`
`action appears to be happening {sparkling}. While we’d love to see another SKU or two. what the brand is introducing first
`.
`.
`.
`,
`.
`.
`feels like worthy competition ror other brands In this nascent space.
`
`PRODUCT RATINGS
`
`I...
`"
`
`I:
`
`Blood Orange 3:
`Coconut
`
`Grapefruit 8. Mint
`Basil
`
`tote
`
`tote
`
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`

`

`TrendHunter Article
`
`TrendHunter Article
`
`

`

`Title: Honev-Sweetened CBD Beverages : cloud water
`Link: https:ffwww.trendhunter.comftrendsfcloud-water
`
`WERE,“ E TH1.- FUT'Ll'F-E
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`TRENDHUM'ER
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`TOOLS
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`2 Similar
`PhOIIOS
`
`Sparkling ”Cloud Water' Comes in Flavors Like Blood Orange 8! Coconut
`
`Laura IVIcQuarrie — April 1, 22019 — Lifestyle
`
`References: cloudwaterbrands 8t bevnet
`
`000$
`
`lCloud Water is a line of sill-calorie sparkling CBD beverages with unique flavors and natural sweetness that comes from a
`touch of raw honey. With flavors like Blood Orange S Coconut and Grapefruit 8: Mint S Basil, Cloud Water boldlv sets itself
`apart with "intellectually engaging" flavors.
`
`Thanks to the addition of honey, these beverages need not rely on zeroncalorie sweeteners and only boast 10 grams of
`sugar per bottle. In terms of texture, the refreshing beverages are said to be a cross between sparkling water and soda.
`helping to satisfy consumers who are looking for betterwfor-vou beverages with enhanced benefits.
`
`Both Cloud Water beverages are packaged in conventional glass soda bottles with crimped metal caps—although theyF
`are finished in an opaque white coat that creates a sense of curiosity about the drinks.
`
`
`
`POLOUIlEiI'IlIBrf —IIIIIIIIIIIIIIII
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`TruLife CBD Enhances the Wellness of Animals with Beneficial
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`BluePrint Organic's Cold—Pressed Juice Shots Support Cut Health 31 Sleep
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`Culinary Epicenter Article
`
`

`

`Title: The CED Industry: An Incredible Edible Struggle | CulEpi
`Link: https:l,lwww.c-ulinaryepicenter.comlthe-cbd-industry-an-incredible-edible-strugglel
`
`
`
`E©OO
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`Talk to Me | Elog
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`
`m chfitlE Dela Cruz
`The CED Industry: An Incredible Edible
`
`Struggle
`
`G April 3, 2319
`
`3‘ rn-nuzss read
`
`This week the FDA announced it will hold a public hearing on CED on May 3lst, simultaneously sending
`
`out warning letters to CED businesses about health claims. Many CED companies in the food and
`
`beverage space are currently struggling to keep up with unpredictable government regulations — local,
`
`state and federal — so the FDA hearing couldn’t come soon enough.
`
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`,, [Sftalteholders are looking to the FDA for clarity on how our authorities apply to such
`products, what pa th ways are available to market such products lawfully under these
`authorities, and how the FDA is carrying out its responsibility to protect public health
`and safety with respect to such products. ~ Statement from FDA Commissioner Scott
`Gottlieb, MD.
`
`Although CED is legal as a prescription drug, the FDA restricts its use as a food additive or dietary
`
`supplement. Prior to the FDA announcement, the NYC Department of Health and Mental Hygiene had
`
`already started banning all CED-infused edibles. Some local cafes and bakeries have already felt the
`
`blow of this ban by having their cookies confiscated and croissants kidnapped, including C.J. Holm of Fat
`
`Cat Kitchen in the East Village.
`
`Ti—' El" C wove IE'I SWASTI KAE :N -l E .3
`
`DEETAUFJANT. AND ”Er-HE FCIIJGHT EACH.
`
`
`
`lsl GUT H '
`the punches” when working in the CED industry.
`
`Cookies and catmabls colic tit-:13 tin-o I"'L'.o-;.-.r':esv of Caffeine -"_.-'.-Itier'or"o-:..-odl
`
`1»!
`'
`5.
`
`Those we’ve talked to about their experiences repeatedly compare each day in the cannabinoid market
`
`to a boxing match. Marc Siden, CEO of Cloud Water Brands, said in an interview with CulEpi founder
`
`Regina Varolli, “everyday is unpredictable and it punches you in the face. It either wakes you up or
`
`knocks you down." And Ian Ford, owner of Brooklyn’s Caffeine Underground, advises to, “just roll with
`
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`
`Although CED edible restrictions are still a grey area, recent reports say that the New York City
`
`Department of Health will soon be issuing violations to eateries selling CED-infused food or drink, and
`
`according to an email sent by the DOH, July 1st will be the commencement of embargoing cannabinoid
`
`edibles for good. After that, store owners will be required to return their shipments back to suppliers or
`
`just toss them.
`
`Subsequently, when October 1st comes around, cafes that aren’t following these regulations could be
`
`hounded by inspectors with violations, including fines and/or deducting points from the restaurant’s
`
`health letter grade. This came as a complete shock to business owners in the CED industry, and upon
`
`_,.,
`
`I:
`
`

`

`asking health inspectors the reasoning behind this, business owners were met with vague responses.
`
`“It’s still unclear in their language," explained a frustrated Ford. “It’s unclear whether or not we’ll be
`
`able to sell food that already has CBD in it. We just don’t know."
`
`This lack of consistency and clarity in regulations is also one of Siden's biggest concerns. “What my
`
`team is craving for is real information,“r he emphasized. “We're trying to understand what is really the
`
`concern and issue here."
`
`0@°O
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`uwr
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`
`
`Flo-rte." Power Coffee Co.
`
`,IJrc-vrdes L'Isffetoe l_f.".li3lE'-“'§i'-'_'.'tl.i'.'t'.l I-vlth lovely CBD mfused calJ.oL-'cc.'.-1os
`
`and moo-Has {Courtesy {Jr—Ca fire-ine- Lion's-lg roost-d}
`
`Siden also explained that he has an understanding and belief that there needs to be some regulation in
`
`this space, and that the frustration is coming from the amount of time it's taking these regulatory
`
`bodies to make up their minds. “We're just caught in a little process," Siden said. “The government
`
`Share YOUR
`
`CulEpiI
`
`‘v‘oice on
`
`Dons LAD sot—2s
`
`Smash Server Stereotypes &
`
`Show Some Respect
`
`One Solution to Fight CD2
`
`Emissions, Food Waste &
`
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`
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`
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`
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`
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`
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`
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`
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`
`*Fakeil‘ With Mother Nature
`
`doesn’t do things in a day. If they feel things are getting out of control, they'll put a yellow flag up and
`
`Baking the “Bread of
`
`tell everyone to slow down and stop so they can get comfortable before going again.”
`
`FDA Commissioner Scott Gottlieb, M.D. addressed this issue with almost the same sentiment.
`
`“[Sjtakeholders are looking to the FDA for clarity on how our authorities apply to such products, what
`
`pathways are available to market such products lawfully under these authorities, and how the FDA is
`
`Inclusion" with Holy Water
`
`We Took Our Support for
`
`Sustainable Seafood to
`
`Capitol Hill
`
`carrying out its responsibility to protect public health and safety with respect to such products,“ he
`
`Bread 8-: Beer: Women
`
`wrote in this we