Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1053124
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`Filing date:
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`05/04/2020
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Petition for Cancellation
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`Notice is hereby given that the following party has filed a petition to cancel the registration indicated below.
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`Petitioner Information
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`Name
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`Entity
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`Address
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`Attorney informa-
`tion
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`OFD Foods, LLC
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`Limited Liability Company
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`Citizenship
`
`Delaware
`
`770 SW 29th Avenue
`Albany, OR 97321
`UNITED STATES
`
`Ernest G. Bootsma
`Buchalter, a Professional Corporation
`1331 NW Lovejoy Street, Suite 900
`Portland, OR 97209
`UNITED STATES
`ebootsma@buchalter.com, fbhatti@buchalter.com, mstoecklin@buchalter.com,
`ipdocket@buchalter.com
`503-226-8634
`
`Registration Subject to Cancellation
`
`Registration No.
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`5187523
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`Registration date
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`04/18/2017
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`Registrant
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`Goat Function, LLC
`1827 Pearl Street, Suite 2
`Boulder, CO 80302
`UNITED STATES
`
`Goods/Services Subject to Cancellation
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`Class 029. First Use: 2016/10/00 First Use In Commerce: 2016/10/00
`All goods and services in the class are subject to cancellation, namely: Freeze dried, dehydrated, or
`vacuum-packaged fruits; freeze dried, dehydrated, or vacuum-packed vegetables; freeze dried, de-
`hydrated, or vacuum-packed eggs; freeze dried, dehydrated, or vacuum-packedvegetarian dishes
`consisting primarily of vegetables; milk powder; freeze dried, dehydrated, or vacuum-packed foods-
`namely, apples, plums, pears, peaches, sliced strawberries, raspberries, peas, corn, cut green
`beans, diced carrots, slicedmushrooms, scrambled egg mix, cheese omelet, mexican omelet
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`Class 030. First Use: 2016/10/00 First Use In Commerce: 2016/10/00
`All goods and services in the class are subject to cancellation, namely: Breakfast cereal, pancakes
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`Grounds for Cancellation
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`Priority and likelihood of confusion
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`Trademark Act Sections 14(1) and 2(d)
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`Dilution by blurring
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`Dilution by tarnishment
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`Trademark Act Sections 14(1) and 43(c)
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`Trademark Act Sections 14(1) and 43(c)
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`

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`Marks Cited by Petitioner as Basis for Cancellation
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`U.S. Registration
`No.
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`992627
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`Registration Date
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`09/03/1974
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`Application Date
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`07/19/1971
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`Foreign Priority
`Date
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`NONE
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`Word Mark
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`Design Mark
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`Description of
`Mark
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`Goods/Services
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`MOUNTAIN HOUSE
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`NONE
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`Class U046 (International Class 029, 030). First use: First Use: 1969/04/18 First
`Use In Commerce: 1969/04/29
`FREEZE-DRIED FOODS-NAMELY, APPLES, PLUMS, PEARS, PEACHES,
`SLICED STRAWBERRIES, RASPBERRIES, PEAS, CORN, CUT GREEN
`BEANS, DICED CARROTS, SLICED MUSHROOMS, SCRAMBLED EGG MIX,
`CREAMED COTTAGE CHEESE, CHEESE OMELET, MEXICAN OMELET,
`CHICKEN CHOP SUEY, BEEF CHOP SUEY, CHICKEN STEW, COOKED
`DICED CHICKEN, CHILI WITH BEANS, COOKED DICED BEEF, BEEF WITH
`RICE AND ONIONS, BEEF PATTIES, SAUSAGE PATTIES, PORK CHOPS,
`BEEF STEAK, BEEF STEW, POTATOES AND PORK, FISH SQUARES,
`SHRIMP, AND ICE CREAM
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`U.S. Registration
`No.
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`2839844
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`Registration Date
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`05/11/2004
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`Word Mark
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`Design Mark
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`MOUNTAIN HOUSE
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`Application Date
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`05/19/2003
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`Foreign Priority
`Date
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`NONE
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`Description of
`Mark
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`Goods/Services
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`NONE
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`Class 035. First use: First Use: 1999/05/13 First Use In Commerce: 1999/05/13
`On-line retail store services featuringpackaged entrees consisting primarily of
`meat, fish, poultry, vegetables, pasta, rice, noodles, and granola, and processed
`fruits and milk
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`U.S. Registration
`No.
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`4640727
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`Registration Date
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`11/18/2014
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`Word Mark
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`MOUNTAIN HOUSE
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`Application Date
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`04/07/2014
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`Foreign Priority
`Date
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`NONE
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`

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`Design Mark
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`Description of
`Mark
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`Goods/Services
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`NONE
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`Class 029. First use: First Use: 1969/04/18 First Use In Commerce: 1969/04/29
`Freeze dried food and freeze dried foodmixtures consisting of beef, pork, pork-
`sausage, poultry, seafood, fish, vegetables, pasta, eggs, crackers, dessert
`andsnack items consisting of freeze dried fruits
`Class 030. First use: First Use: 1969/04/18 First Use In Commerce: 1969/04/29
`freeze dried rice and granola, freeze dried ice cream
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`Attachments
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`76515195#TMSN.png( bytes )
`86245012#TMSN.png( bytes )
`Petition to Cancel - MOUNTAIN STANDARD.pdf(103341 bytes )
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`Signature
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`/fbhatti/
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`Name
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`Date
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`Farah P. Bhatti
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`05/04/2020
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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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`OFD Foods, Inc.
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` Petitioner
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` v.
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`Goat Function, LLC
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` Registrant
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`
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`Cancellation No: ___________________
`
`
`Registration No. 5,187,523
`Trademark: MOUNTAIN STANDARD
`
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`PETITION FOR CANCELLATION
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`OFD Foods, LLC, a Limited Liability Company of Delaware, having a principal place of
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`business at 770 SW 29th Avenue, Albany, Oregon 97321, believes that it will be damaged by
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`Registration No. 5,187,523, and hereby petitions to cancel the same.
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`
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`As grounds therefor, it is alleged that:
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`1.
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`The Registrant obtained U.S. Trademark Registration No. 5,187,523 on April 18,
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`2017 for the mark MOUNTAIN STANDARD for use in connection with “Freeze dried,
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`dehydrated, or vacuum-packaged fruits; freeze dried, dehydrated, or vacuum-packed vegetables;
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`freeze dried, dehydrated, or vacuum-packed eggs; freeze dried, dehydrated, or vacuum-packed
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`vegetarian dishes consisting primarily of vegetables; milk powder; freeze dried, dehydrated, or
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`vacuum-packed foods-namely, apples, plums, pears, peaches, sliced strawberries, raspberries,
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`peas, corn, cut green beans, diced carrots, sliced mushrooms, scrambled egg mix, cheese omelet,
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`mexican omelet,” in Class 29 and “breakfast cereal, pancakes,” in Class 30. The first use of the
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`mark anywhere by Registrant was allegedly October 2016; the first use of the mark in commerce
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`by Registrant was also allegedly October 2016.
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`2.
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`Petitioner has adopted and has continuously used the MOUNTAIN HOUSE
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`trademark since at least as early as April 18, 1969, to the present time, in connection with
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`“freeze-dried foods-namely, apples, plums, pears, peaches, sliced strawberries, raspberries, peas,
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`corn, cut green beans, diced carrots, sliced mushrooms, scrambled egg mix, creamed cottage
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`cheese, cheese omelet, Mexican omelet, chicken chop suey, beef chop suey, chicken stew,
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`cooked diced chicken, chili with beans, cooked diced beef, beef with rice and onions, beef
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`patties, sausage patties, pork chops, beef steak, beef stew, potatoes and pork, fish squares,
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`shrimp, and ice cream,” in Classes 29 and 30, “Freeze-dried food and freeze-dried food mixtures
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`consisting of beef, pork, pork sausage, poultry, seafood, fish, vegetables, pasta, eggs, crackers,
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`dessert and snack items consisting of freeze-dried fruits,” in Class 29, “freeze-dried rice and
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`granola, freeze-dried ice cream,” in Class 30, and “on-line retail store services featuring
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`packaged entrees consisting primarily of meat, fish, poultry, vegetables, pasta, rice, noodles, and
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`granola, and processed fruits and milk,” in Class 35 (hereinafter referred to as the “Petitioner’s
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`Goods and Services”).
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`3.
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`Petitioner owns numerous trademark registrations for the MOUNTAIN HOUSE
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`mark throughout the world including U.S. Trademark Registration Nos. 992,627, 2,839,844 and
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`4,640,727 (hereinafter referred to as the “Petitioner’s Mark”) and other rights associated
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`therewith for the Petitioner’s Goods and Services offered under Petitioner’s Mark.
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`4.
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`Petitioner has developed extensive goodwill with respect to Petitioner’s Mark
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`over the last fifty-one (51) years.
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`5.
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`Petitioner is a market leader for Petitioner’s goods and services, as well as related
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`goods and services, and is the most widely recognized brand for such goods and services.
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`6.
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`Petitioner has spent substantial sums in advertising and promotion of Petitioner’s
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`Goods and Services which bear the MOUNTAIN HOUSE mark.
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`7.
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`By virtue of the excellent quality of its goods and services, its worldwide renown
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`in connection with such goods and services, expenditures of considerable sums in promoting
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`such goods and services, and through advertising, Petitioner has garnered a most valuable
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`reputation for its MOUNTAIN HOUSE mark.
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`8.
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`The goods and services on which Petitioner uses the MOUNTAIN HOUSE mark,
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`namely, freeze-dried foods as identified in Classes 29 and 30, and the online retail sale of such
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`items, are closely related to, if not identical to, the goods on which Registrant uses the
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`MOUNTAIN STANDARD mark.
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`9.
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`Purchasers are likely to consider the food items of the Registrant bearing the
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`MOUNTAIN STANDARD mark as emanating from Petitioner, and will believe such products to
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`be those of Petitioner.
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`10.
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`If Registrant is permitted to retain the registration sought to be cancelled, a cloud
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`will be placed on Petitioner’s title in and to its MOUNTAIN HOUSE mark and on its right to
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`enjoy the free and exclusive use thereof in connection with the sale of its goods and services all
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`to the great injury of Petitioner. Persons familiar with Petitioner’s mark would likely be
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`mistaken into believing that Registrant’s goods are associated with Petitioner. Any such
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`confusion would result in a loss of sales to Petitioner.
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`11.
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`Furthermore, any defect, objection or fault found with Registrant’s goods sold
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`under its mark would necessarily reflect upon and seriously injure the reputation which
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`Petitioner has established for its goods and services sold under its mark.
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`12.
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`If Registrant is permitted to maintain its registration, the same may be deemed
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`incontestable after five (5) years from the date of the registration, and Registrant would thereby
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`obtain an incontestable right to use of its mark in commerce. The continued existence of such
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`registration casts a cloud upon Petitioner’s right to continue to use, register, and expand the use
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`of its MOUNTAIN HOUSE mark. Such registration would thus be a source of damage and
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`injury to Petitioner.
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`13.
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`Registrant’s use of the MOUNTAIN STANDARD mark is likely to cause
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`confusion, mistake or deception as to the source, origin, sponsorship or approval of Registrant’s
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`goods offered in connection with the MOUNTAIN STANDARD mark or as to Registrant’s
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`affiliation, connection or association with Petitioner.
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`14.
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`Petitioner’s Mark is inherently distinctive and has also acquired secondary
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`meaning by extensive continuous and substantially exclusive use by Petitioner and is associated
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`with Petitioner. Petitioner’s Mark is famous and distinctive within the meaning of the Federal
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`Trademark Dilution Act. Registrant filed its application after Petitioner’s Mark had become
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`famous and Registrant is now using the applied for mark in an attempt to profit off the notoriety
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`of the mark as established by Petitioner. Registrant’s use of its mark is likely to dilute
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`Petitioner’s Mark.
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`15.
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`As a result of the foregoing, the continued viability of the MOUNTAIN
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`STANDARD registration would cause a likelihood of confusion, mistake or deception as to the
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`source, origin, sponsorship or approval of Registrant’s goods offered under the registered mark
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`or as to Registrant’s affiliation, connection or association with Petitioner’s Mark or the activities
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`of the parties and a likelihood of dilution of Petitioner’s Mark.
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`16.
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`Petitioner would be damaged by the continued viability of the registration in that
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`the registration gives Registrant prima facie exclusive right to use the MOUNTAIN
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`STANDARD mark despite the likelihood of confusion as described above and will allow
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`Registrant to trade on Petitioner’s existing goodwill in Petitioner’s Mark.
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`WHEREFORE, Petitioner prays this Petition be sustained in favor of Petitioner and that
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`the registration be cancelled.
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`Dated: May 4, 2020
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`Respectfully Submitted,
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`OFD Foods, LLC
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`By: ___/fbhatti/____________________________
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`Ernest G. Bootsma
`Farah P. Bhatti
`Buchalter, a Professional Corporation
`1331 NW Lovejoy St., Suite 900
`Portland, OR 97209-3280
`Email: ebootsma@buchalter.com
`
`fbhatti@buchalter.com
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`ipdocket@buchalter.com
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`5
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