Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA998606
`08/29/2019
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Petition for Cancellation
`
`Notice is hereby given that the following party has filed a petition to cancel the registration indicated below.
`
`Petitioner Information
`
`Name
`
`Entity
`
`Address
`
`Attorney informa-
`tion
`
`Fortitude Health, LLC
`
`limited liability company
`
`Citizenship
`
`New Jersey
`
`101 US Highway 46
`Suite 122
`Pine Brook, NJ 07058
`UNITED STATES
`
`Kevin Haynie
`YourTrademarkAttorney.com
`167 Lamp and Lantern Village
`#220
`Chesterfield, MO 63017-8208
`UNITED STATES
`kevin@yourtrademarkattorney.com, morris@yourtrademarkattorney.com
`(314) 479-3668
`
`Registration Subject to Cancellation
`
`Registration No.
`
`5570232
`
`Registration date
`
`09/25/2018
`
`Registrant
`
`JUSTIN SAMRA
`3555 29TH STREET APT. 4F
`LONG ISLAND CITY, NY 11106
`UNITED STATES
`
`Goods/Services Subject to Cancellation
`
`Class 005. First Use: 2017/01/11 First Use In Commerce: 2017/01/11
`All goods and services in the class are subject to cancellation, namely: Amino acids for nutritional
`purposes; Anti-inflammatories; Mineral supplements;Probiotic supplements; Vitamins; Food supple-
`ments, namely, anti-oxidants
`
`Grounds for Cancellation
`
`Priority and likelihood of confusion
`
`Trademark Act Sections 14(1) and 2(d)
`
`Mark Cited by Petitioner as Basis for Cancellation
`
`U.S. Application
`No.
`
`88438062
`
`Application Date
`
`05/20/2019
`
`Registration Date
`
`NONE
`
`Foreign Priority
`Date
`
`NONE
`
`

`

`Word Mark
`
`Design Mark
`
`HEALFAST
`
`Description of
`Mark
`
`Goods/Services
`
`NONE
`
`Class 003. First use: First Use: 2011/09/01 First Use In Commerce: 2011/09/01
`Non-medicated skin care preparations, namely, creams, lotions, gels, sham-
`poos, oils
`
`Attachments
`
`88438062#TMSN.png( bytes )
`HEALFAST Petition for Cancellation FINAL with Exhibit.pdf(114386 bytes )
`
`Signature
`
`/kmh355/
`
`Name
`
`Date
`
`Kevin Haynie
`
`08/29/2019
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`Fortitude Health, LLC
`
`
`Petitioner,
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Justin Samra
`)
`
`
`
`
`Registrant.
` )
`
`
`
`
`
`
`
`
`
`
`Cancellation No.
`
`
`
`
`
`
`
`
`
`
`PETITION FOR CANCELLATION
`
`
`
`Fortitude Health, LLC (“Petitioner”) is a New Jersey limited liability company with a
`
`mailing address of 101 US Highway 46, Suite 122, Pine Brook, New Jersey 07058.
`
`
`
`According to the USPTO records, the name and address of the current owner of U.S.
`
`Registration No. 5,570,232 is Justin Samra, 3555 29th St., Apt. 4F, Long Island City, New York
`
`11106 (“Registrant”).
`
`
`
`Pursuant to 15 U.S.C. §1064, Petitioner believes it is damaged by Registration No.
`
`5,570,232 and hereby petitions to cancel the same.
`
`
`
`
`
`
`
`The grounds for cancellation are as follows:
`
`1.
`
`Registrant is the owner of U.S. Registration No. 5,570,232 for the mark
`
`HEALFAST for “amino acids for nutritional purposes; anti-inflammatories; mineral
`
`supplements; probiotic supplements; vitamins; food supplements, namely, anti-oxidants,” in
`
`International Class 5.
`
`
`
`2.
`
`Registration No. 5,570,232 issued on the Principal Register on September 25,
`
`2018. As such, Registration No. 5,570,232 is not incontestable.
`
`
`
`1
`
`

`

`
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`3.
`
`The underlying application filing date of Registration No. 5,570,232 is February
`
`19, 2018.
`
`
`
`4.
`
`Registration No. 5,570,232 states that Registrant’s first use of his HEALFAST
`
`mark occurred at least as early as January 11, 2017, and that Registrant’s first use of his
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`HEALFAST mark in interstate commerce occurred at least as early as January 11, 2017.
`
`
`
`5.
`
`Long before any date on which Registrant could reasonably rely, Petitioner
`
`adopted and commenced use of the mark HEALFAST in the United States in connection with
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`the advertising and sale of skin care products.
`
`
`
`6.
`
`Petitioner has continuously used its HEALFAST mark in commerce ever since it
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`first adopted the mark.
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`
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`7.
`
`As a result of Petitioner’s continuous use of its HEALFAST mark in connection
`
`with its products, the relevant segment of the purchasing public has come to exclusively
`
`associate the HEALFAST mark with Petitioner’s products. As such, the HEALFAST mark is
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`extremely valuable to Petitioner and has developed a substantial amount of goodwill and
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`recognition among the relevant segment of the purchasing public.
`
`
`
`8.
`
`Petitioner’s HEALFAST mark has been used, and continues to be used, by the
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`relevant segment of the purchasing public to identify the source of Petitioner’s products and to
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`distinguish such products from the products and services offered by others.
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`
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`9.
`
`Petitioner is the owner of all right, title, and interest in and to the HEALFAST
`
`mark as used in connection with its products.
`
`
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`10.
`
`Petitioner’s first use of its HEALFAST mark precedes the underlying application
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`filing date of Registration No. 5,570,232, as well as Registrant’s first use dates as indicated in
`
`Registration No. 5,570,232.
`
`
`
`2
`
`

`

`
`
`11.
`
`Petitioner is the owner of Application Serial No. 88438062 for the mark
`
`HEALFAST for “non-medicated skin care preparations, namely, creams, lotions, gels,
`
`shampoos, oils,” in International Class 3. Petitioner has attached a status and title copy of its
`
`application as Exhibit A.
`
`
`
`12.
`
`On July 31, 2019, the Trademark Examining Attorney assigned to review
`
`Petitioner’s application for HEALFAST cited Registration No. 5,570,232 as a basis for refusing
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`registration of Petitioner’s HEALFAST mark under Trademark Act §2(d), thereby causing harm
`
`and damage to Petitioner.
`
`
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`13.
`
`Registrant’s HEALFAST mark is identical in appearance, sound, and commercial
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`impression to Petitioner’s HEALFAST mark.
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`
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`14.
`
`The products recited in Registration No. 5,570,232 for HEALFAST are similar
`
`and related to the products offered under Petitioner’s HEALFAST mark.
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`
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`15.
`
`Petitioner is damaged by Registration No. 5,570,232 since Registrant’s
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`HEALFAST mark, when used on or in connection with its products, so resembles Petitioner’s
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`HEALFAST mark as to be likely to cause confusion, to cause mistake, or to deceive as to the
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`affiliation, connection, or association of Registrant with Petitioner, or as to the origin,
`
`sponsorship, or approval of Registrant’s products by Petitioner.
`
`
`
`16.
`
`Petitioner is further damaged by Registration No. 5,570,232 because such
`
`registration gives color of exclusive statutory rights to Registrant in violation and derogation of
`
`the prior superior rights of Petitioner.
`
`
`
`
`
`
`
`3
`
`

`

`
`
`WHEREFORE, Petitioner is damaged by U.S. Registration No. 5,570,232 and prays that
`
`the same be canceled pursuant to 15 U.S.C. §1064.
`
`
`
`
`
`Respectfully submitted,
`
`FORTITUDE HEALTH, LLC
`
`By: /kmh355/
`Kevin Haynie
`YourTrademarkAttorney.com
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`Tel: (314) 479-3668
`Fax: (800) 961-0363
`kevin@yourtrademarkattorney.com
`
`Attorney for Petitioner
`Fortitude Health, LLC
`
`
`
`
`
`
`
`Dated:
`
`8/29/2019
`
`
`
`
`
`4
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`

`

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`EXHIBIT A
`EXHIBIT A
`
`

`

`Generated on: This page was generated by TSDR on 2019-08-28 17:12:41 EDT
`
`Mark: HEALFAST
`
`US Serial Number: 88438062
`
`Filed as TEAS
`Plus:
`
`Yes
`
`Register: Principal
`
`Mark Type: Trademark
`
`Application Filing
`Date:
`
`May 20, 2019
`
`Currently TEAS
`Plus:
`
`Yes
`
`Status: A non-final Office action has been sent (issued) to the applicant. This is a letter from the examining attorney requiring additional
`information and/or making an initial refusal. The applicant must respond to this Office action. To view all documents in this file, click on
`the Trademark Document Retrieval link at the top of this page.
`
`Status Date: Jul. 31, 2019
`
` 
`
`Mark Literal
`Elements:
`
`HEALFAST
`
`Mark Information
`
`Standard Character
`Claim:
`
`Mark Drawing
`Type:
`
`Yes. The mark consists of standard characters without claim to any particular font style, size, or color.
`
`4 - STANDARD CHARACTER MARK
`
`Goods and Services
`
`Note:
`The following symbols indicate that the registrant/owner has amended the goods/services:
`Brackets [..] indicate deleted goods/services;
`Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; and
`Asterisks *..* identify additional (new) wording in the goods/services.
`
`For: Non-medicated skin care preparations, namely, creams, lotions, gels, shampoos, oils
`
`International
`Class(es):
`
`003 - Primary Class
`
`Class Status: ACTIVE
`
`Basis: 1(a)
`
`U.S Class(es): 001, 004, 006, 050, 051, 052
`
`First Use: Sep. 01, 2011
`
`Use in Commerce: Sep. 01, 2011
`
`Basis Information (Case Level)
`
`Filed Use: Yes
`
`Filed ITU: No
`
`Filed 44D: No
`
`Filed 44E: No
`
`Filed 66A: No
`
`Currently Use: Yes
`
`Currently ITU: No
`
`Currently 44D: No
`
`Currently 44E: No
`
`Currently 66A: No
`
`Amended Use: No
`
`Amended ITU: No
`
`Amended 44D: No
`
`Amended 44E: No
`
`Filed No Basis: No
`
`Currently No Basis: No
`
`Current Owner(s) Information
`
`Owner Name: Fortitude Health, LLC
`
`Owner Address: 101 US Highway 46 Ste 122
`Pine Brook, NEW JERSEY 07058
`UNITED STATES
`
`Legal Entity Type: LIMITED LIABILITY COMPANY
`
`State or Country
`Where Organized:
`
`NEW JERSEY
`
`

`

`Attorney/Correspondence Information
`
`Attorney Name: Kevin Haynie
`
`Docket Number: F175 001TM
`
`Attorney of Record
`
`Attorney Primary
`Email Address:
`
`pto@yourtrademarkattorney.com
`
`Correspondent
`Name/Address:
`
`Kevin Haynie
`YourTrademarkAttorney.com
`167 Lamp and Lantern Village
`#220
`Chesterfield, MISSOURI 63017-8208
`UNITED STATES
`
`Attorney Email
`Authorized:
`
`Yes
`
`Correspondent
`
`Phone:
`
`(314) 479-3668
`
`Fax:
`
`(800) 961-0363
`
`Correspondent e-
`mail:
`
`pto@yourtrademarkattorney.com
`
`Correspondent e-
`mail Authorized:
`
`Yes
`
`Domestic Representative - Not Found
`Prosecution History
`
`Date
`
`Description
`
`Aug. 20, 2019
`
`ATTORNEY/DOM.REP.REVOKED AND/OR APPOINTED
`
`Aug. 20, 2019
`
`TEAS REVOKE/APP/CHANGE ADDR OF ATTY/DOM REP RECEIVED
`
`Jul. 31, 2019
`
`NOTIFICATION OF NON-FINAL ACTION E-MAILED
`
`Jul. 31, 2019
`
`NON-FINAL ACTION E-MAILED
`
`Jul. 31, 2019
`
`NON-FINAL ACTION WRITTEN
`
`Jul. 18, 2019
`
`ASSIGNED TO EXAMINER
`
`Jun. 05, 2019
`
`NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM
`
`May 23, 2019
`
`NEW APPLICATION ENTERED IN TRAM
`TM Staff and Location Information
`
`TM Attorney: TOPLAK, RIO NICE
`
`Current Location: TMO LAW OFFICE 127 - EXAMINING
`ATTORNEY ASSIGNED
`
`TM Staff Information
`
`Law Office
`Assigned:
`
`LAW OFFICE 127
`
`File Location
`
`Date in Location: Jul. 31, 2019
`
`Proceeding
`Number
`
`6325
`
`6325
`
`94366
`
`94366
`
`