Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1259675
`01/12/2023
`
`ESTTA Tracking number:
`
`Filing date:
`
`Proceeding no.
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92080132
`
`Plaintiff
`Blackstone Labs, LLC
`
`JESSICA H LEACH
`THE LAW OFFICE OF ARTHUR W LEACH
`4080 MCGINNIS FERRY RD SUITE 401
`ALPHARETTA, GA 30005
`UNITED STATES
`Primary email: Jessica@arthurwleach.com
`678-799-0474
`Opposition/Response to Motion
`
`Jessica H. Leach
`
`Jessica@arthurwleach.com
`
`/Jessica H. Leach/
`
`01/12/2023
`
`Attachments
`
`Blackstone re MSJ - 01.12.23 - reduced file size.pdf(6102296 bytes )
`
`

`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`)
`
`
`BLACKSTONE LABS, LLC,
`)
`
`
`
`
`
`
`
`)
`
`
`
`
`Petitioner,
`
`)
`
`
`
`
`
`
`
`)
`
`
`v.
`
`
`
`
`)
`
`
`
`
`
`
`
`)
`
`
`PRICE4LESS LLC,
`
`
`)
`
`
`
`
`
`
`
`)
`
`
`
`
`Respondent.
`
`__________________________________________)
`
`
`
`
`
`Cancellation No. 92080132
`
`
`BLACKSTONE LABS, LLC’S RESPONSE IN OPPOSITION TO
`PRICE4LESS LLC’S MOTION FOR SUMMARY JUDGMENT
`
`
`
`
`Price4Less LLC’s (“Price4Less”) Motion for Summary Judgment does not argue confusion
`
`between registered mark CHOISIE1 and Blackstone Labs, LLC’s (“Blackstone”) mark CHOSEN1
`
`is unlikely. To the contrary, Price4Less admits consumers “may confuse its trademark name
`
`‘CHOISIE1’ with Petitioner’s name ‘CHOSEN1.’” TTABVUE 14 at Memorandum ¶ 35.
`
`However, Price4Less argues it is entitled to summary judgment because Blackstone’s use of
`
`CHOSEN1 was unlawful. In doing so, Price4Less relies upon baseless assumptions, irrelevant
`
`and disproven documents, and misapplications of law.
`
`Summary judgment is not warranted and should be denied. As shown in evidence
`
`submitted herewith, Blackstone began using the CHOSEN1 trademark in connection with lawful
`
`dietary supplements no later than November 11, 2015 (four years before Price4Less’ first use of
`
`CHOISIE1) and has never used the trademark in connection with unlawful goods. This evidence,
`
`when viewed in the requisite light most favorable to Blackstone, precludes disposition of
`
`Blackstone’s likelihood of confusion claim.
`
`

`

`BACKGROUND
`
`I.
`
`
`Price4Less owns the trademark CHOISIE1 (Reg. No. 6542981) for “[o]nline retail store
`
`services featuring beauty and health products” in International Class 035. According to
`
`Price4Less’ filings with the USPTO, the mark was first used on July 7, 2020. Exh. A.
`
`Blackstone owns the trademark CHOSEN1 (Application Serial No. 90497273) for use in
`
`connection with “[d]ietary supplements for human consumption” in International Class 005.
`
`Blackstone began selling a “CHOSEN1” dietary supplement no later than November 11, 2015.
`
`Exh. B at ¶ 4; see also Exh. C. Blackstone has since continued selling the same “CHOSEN1”
`
`dietary supplement and has not altered its formulation. Exh. C1 at pp. 2, 4-5, 7-11. As further set
`
`out infra., Blackstone’s CHOSEN1 dietary supplement is, and has always been, comprised of
`
`lawful ingredients. Exh. B at ¶ 5.
`
`Blackstone applied to register its CHOSEN1 trademark with the USPTO, but was refused
`
`based upon a likelihood of confusion with CHOISIE1. The USPTO’s Office Action reasoned:
`
`
`
`The registrant’s mark is in French … [T]he ordinary American purchaser would
`likely stop and translate the mark because the French language is a common, modern
`language spoken by an appreciable number of consumers in the United States. …
`[T]he wording CHOISIE 1 in the registered mark directly and literally translates to
`CHOSEN 1 … Thus, the marks create a similar overall commercial impression …
`
`[T]he registered mark identifies services of “Online retail store services featuring
`beauty and health products” and the applied-for mark identifies goods of “Dietary
`supplements for human consumption” which are in the nature of “health
`products.” It is very common for online retail stores that feature health and beauty
`products to feature dietary supplements as part of the featured health products. …
`
`[A]s the applicant’s mark is similar to the registrant’s mark, and as the goods and
`services are related, there is a likelihood of confusion as to the source of the
`applicant’s goods.
`
`
`1 Wayback Machine internet archive records capturing Blackstone’s website at various times since
`November of 2015 and showing the supplement facts panel for Blackstone’s CHOSEN1 product
`remained consistent throughout.
`
`
`
`2
`
`

`

`Exh. D at pp. 2-3. Accordingly, Blackstone filed a Petition to Cancel the CHOISIE1 registration.
`
`See generally TTABVUE 1.
`
`Now, Price4Less moves for summary judgment on a defense that Blackstone’s use was
`
`unlawful.2 Price4Less’ Answer did not plead unlawful use as an independent defense, but three
`
`of its defenses are based upon related accusations:
`
`• “Third Affirmative Defense[:] Petitioner’s Products are not in the same class as
`Respondent’s Products … Petitioner is in the business of selling controlled substances.”
`TTABVUE 13 at ¶¶ 21-23;
`
` •
`
` “Fourth Affirmative Defense[:] … Petitioner committed fraud in its trademark
`application when it stated that it sells dietary supplements when in fact … Petitioner
`sold unlawful controlled substances.” Id. at ¶¶ 24-25; and
`
` •
`
` “Fifth Affirmative Defense[:] Doctrine of Unclean Hands … Petitioner cannot seek
`relief of cancellation of Respondent’s trademark when in fact it attempted to register
`its name under the guise that it sells dietary supplements, which is not the case.”
`TTABVUE 13 at ¶¶ 26-27.
`
`To support its unlawful use theory, Price4Less sets out eight paragraphs of so-called
`
`“undisputed facts” citing three exhibits, which it presumably found online. TTABVUE 14 at
`
`Memorandum ¶¶ 6-13 (¶ 6 citing MSJ Exhs. A, D; ¶ 7 citing MSJ Exh. D; ¶ 8 citing MSJ Exh. C;
`
`¶ 9 citing MSJ Exh. A). Only two of these paragraphs are, in fact, undisputed. TTABVUE 14 at
`
`Memorandum ¶¶ 12-13. Blackstone addresses the remaining six paragraphs and the exhibits upon
`
`which they rely, as follows:
`
`
`2 Price4Less also seeks other forms of relief that are unavailable on a motion for summary
`judgment; for example, “cancellation” of Blackstone’s application and “[a]n award of costs of this
`suit.” TTABVUE 14 at Motion ¶¶ 2, 4. Price4Less further notes its intention to “demand” an
`order compelling Blackstone to produce certain materials (Id. at ¶ 3); yet, Price4Less’ Motion was
`filed six weeks before discovery opened, and Price4Less did not ask Blackstone to produce the
`referenced materials before filing its Motion. See TTABVUE 11.
`
`
`
`3
`
`

`

`a.
`
`MSJ Paragraphs 6-7, 9-10 & MSJ Exhibits A, D
`
`Price4Less contends Blackstone “engaged in the business of selling unlawful controlled
`
`substances under the guise of FDA-approved dietary supplements,” citing an indictment and
`
`corresponding press release, neither of which mention CHOSEN1. TTABVUE 14 at
`
`Memorandum ¶ 6 (citing MSJ Exhs. A, D). Price4Less cites these documents to support four
`
`paragraphs of allegations, all of which similarly lack any mention of CHOSEN1. Id. at ¶¶ 6-7, 9-
`
`10. As neither the documents nor Price4Less’ allegations tie back to Blackstone’s CHOSEN1
`
`trademark, their purported relevance is unclear. Id. at ¶¶ 6-7, 9-10 (citing MSJ Exhs. A, D).3
`
`The Indictment lists seven products suspected to contain various non-dietary ingredients
`
`and ends the list with a general reference to “other products that violated the FDCA”. TTABVUE
`
`14 at MSJ Exh. D, p. 10. Price4Less ostensibly asks the Board to grant judgment in its favor based
`
`upon an assumption that goods offered under the CHOSEN1 trademark are among the “other
`
`products” referenced. However, such an assumption is unwarranted and improper at the summary
`
`judgment stage. See TBMP § 528.01 (“A party moving for summary judgment has the burden of
`
`demonstrating the absence of any genuine dispute of material fact, and that it is entitled to
`
`judgment as a matter of law. This burden is greater than the evidentiary burden at trial.”)
`
`Moreover, the indictment is dated March 7, 2019 and alleges activities occurring in and
`
`before August of 2018 – i.e., well before Price4Less’ purported first use of CHOISIE1 in July of
`
`2020. Hence, even if the Indictment alleged unlawful use of Blackstone’s CHOSEN1 trademark
`
`through August of 2018 (which it doesn’t) and even if that allegation were true (which it isn’t),
`
`
`3 Additionally, indictments are inadmissible because they lack evidentiary value. See Costello v.
`United States, 350 U.S. 359, 364 (1956) (holding indictments are charging instruments that need
`not be supported by adequate or competent evidence); see also Taylor v. Kentucky, 436 U.S. 478,
`478 (1978) (distinguishing evidence from indictments, which may not be cited as proof at trial).
`
`
`
`4
`
`

`

`Blackstone’s lawful use of CHOSEN1 in the twenty-three months thereafter would have
`
`nonetheless created protectable rights predating Price4Less’ first use of CHOISIE1.4
`
`In sum, the cited documents do not pertain to goods offered under Blackstone’s CHOSEN1
`
`trademark, but even if they did, they would be insufficient to show that Blackstone failed to
`
`lawfully use CHOSEN1 at any time preceding Price4Less’ purported first use of CHOISIE1.
`
`b.
`
`MSJ Paragraph 8 & MSJ Exhibit C
`
`Price4Less asserts: “On May 1, 2020, Petitioner was served with a 60-day notice of
`
`violation sent in compliance with Health & Safety Code § 25249.7(d) which [alleged CHOSEN1]
`
`contained anabolic steroids which the State of California identified to cause male and female
`
`reproductive toxicity.” TTABVUE 14 at Memorandum ¶ 8 (citing MSJ Exh. C). Price4Less offers
`
`no context regarding the notice of violation letter, nor does Price4Less state the outcome of the
`
`resultant civil action. Blackstone does so, as follows:
`
`The Notice of Violation letter was sent on behalf of private citizen Zachary Stein (i.e., not
`
`a government agency) and noted Blackstone’s CHOSEN1 product contains the ingredient
`
`1-androstene-3b-ol-l7-one. TTABVUE 14 at MSJ Exh. C. Mr. Stein alleged, absent support, this
`
`ingredient was an illegal anabolic steroid, and threatened to bring a civil action unless Blackstone
`
`agreed to (i) recall its CHOSEN1 product or issue a health hazard warning to all past purchasers;
`
`(ii) affix a warning to the product if offered for future sales; and (iii) pay an “appropriate” penalty.
`
`
`4 Any further suggestion by Price4Less that Blackstone used the mark unlawfully during the
`twenty-three months between September of 2018 – July of 2020 would necessitate additional,
`absurd and unsupported assumptions that (a) the indictment inexplicably omitted unlawful
`activities occurring between September of 2018 and its filing date in March of 2019; and (b) the
`FDA sat idly by while Blackstone transacted unlawful sales during the pendency and after the
`conclusion of the cited case.
`
`
`
`5
`
`

`

`Id. Blackstone disputed Mr. Stein’s allegations and refused his demands because the cited
`
`ingredient is, in fact, not an illegal anabolic steroid.
`
`Mr. Stein then instituted his promised civil action in the Superior Court of California, Case
`
`No. 20STCV34098. In briefing motions for summary judgment in that action, Blackstone offered
`
`declarations from a chemistry expert, attesting to and supporting the conclusion that the cited
`
`ingredient does not constitute an anabolic steroid under federal or California law. Exh. E at p. 2,
`
`¶¶ 4-5. Mr. Stein was unable to rebut the expert’s declarations, and had also revealed at deposition
`
`that he conducted little to no research concerning anabolic steroids or the cited ingredient before
`
`the notice of violation letter was sent. See generally Exh. F (excerpts of transcript, highlighting
`
`added for ease of reference). For example, Mr. Stein testified as follows:
`
`Did you do any research on the ingredients in these products?
`I read the ingredient labels.
`And did you have any knowledge as to what is or what is not an anabolic
`steroid?
`Very minimal, if any.
`
`Q
`A
`Q
`
`A
`
`Id. at 92:10-15. Mr. Stein later filed a Notice of Abandonment dismissing his claims concerning
`
`the CHOSEN1 dietary supplement. Exh. G.
`
`In sum, Mr. Stein’s letter and the unsupported allegations therein should be given no
`
`weight, as Mr. Stein himself has abandoned the relevant claims, Price4Less offers no independent
`
`evidence to support them, and Blackstone’s expert declarations attesting to the legality of the
`
`CHOSEN1 dietary supplement stand unrebutted.
`
`c.
`
`MSJ Paragraph 11
`
`Price4Less alleges it “has been using the [CHOISIE1] trademark to sell dietary
`
`supplements,” absent support and without specifying the timeframe of its purported use.
`
`TTABVUE 14 at Memorandum ¶ 11. However, Price4Less has not asserted that it used
`
`
`
`6
`
`

`

`CHOISIE1, in any context, prior to Blackstone’s first use date.5 With respect to Price4Less’ use
`
`of CHOISIE1 in connection with dietary supplements specifically, all evidence available to
`
`Blackstone at this time (i.e. before discovery opens) suggests Price4Less began such use after
`
`Blackstone initiated this cancellation proceeding.
`
`Before initiating this proceeding in July of 2022, Blackstone searched for evidence of
`
`Price4Less’ use of CHOISIE1 in connection with its described services, “[o]nline retail store
`
`services featuring beauty and health products.” Namely, Blackstone reviewed Price4Less’
`
`website, Choisie1.com, and found it only sold beauty products.6
`
`Blackstone has since discovered that, on September 7, 2022 (two months after Blackstone
`
`filed its Petition to Cancel notifying Price4Less of its priority of use and the USPTO’s finding of
`
`likelihood of confusion), Price4Less registered the domain name “Choisie1supplements.com”.
`
`Exh. H. A review of that website reveals Price4Less is not merely “using the [CHOISIE1]
`
`trademark to sell dietary supplements” consistent with its described Class 35 services – rather,
`
`Price4Less has expanded its use to a new line of “CHOISIE1” branded dietary supplements (goods
`
`of the same type as Blackstone’s “[d]ietary supplements for human consumption” in Class 5). Exh.
`
`I. To make matters worse, Price4Less has begun using Blackstone’s identical mark “CHOSEN1”
`
`in connection with the CHOISIE1 dietary supplements offered on Choisie1supplements.com, in
`
`combination with promotional content touting the website as “Your Chosen Source.”7 Id.
`
`
`
`
`
`
`5 Again, Price4Less’ filings with the USPTO identify July 7, 2020 as the date CHOISIE1 was first
`used in connection with the Class 35 services described in its registration. Exh. A.
`6 Accordingly, Blackstone intended to conduct discovery to confirm Price4Less committed fraud
`against the USPTO in registering CHOISIE1 in connection with “[o]nline retail store services
`featuring … health products” and then amend its Petition to Cancel.
`7 Thus, it seems Blackstone must now institute a federal lawsuit seeking injunctive relief to combat
`Price4Less’ willful (and flagrant) infringement.
`
`
`
`7
`
`

`

`II.
`
`ARGUMENT AND CITATION OF AUTHORITY
`
`On a motion for summary judgment, the moving party “has the burden of demonstrating
`
`the absence of any genuine dispute of material fact, and that it is entitled to judgment as a matter
`
`of law.” TBMP § 528 (citing Fed. R. Civ. P. 56(a)). To meet this burden, the moving party must
`
`“support[] its motion with evidence that, if unopposed, would establish its right to judgment.”
`
`TBMP § 528.01. In such event, the nonmoving party must proffer countering evidence showing
`
`there is a genuine factual dispute for trial, and such evidence “is to be believed, and all justifiable
`
`inferences are to be drawn in its favor.” Id.
`
`Price4Less asks the Board to grant summary judgment on its unlawful use defense based
`
`upon an indictment and related press release lacking any mention of CHOSEN1, and third-party
`
`letter correspondence from a private citizen asserting unsupported, since-debunked, and since-
`
`abandoned claims. These documents do not warrant summary judgment in Price4Less’ favor.
`
`Indeed, Blackstone is entitled to a presumption of lawful use in commerce, which
`
`Price4Less could only refute by showing:
`
`(1) a violation of federal law [] indicated by the application record or other
`evidence, such as when a court or a federal agency responsible for overseeing
`activity in which the applicant is involved, and which activity is relevant to its
`application, has issued a finding of noncompliance under the relevant statute
`or regulation, or
`
`(2) the applicant's application-relevant activities involve a per se violation of a
`federal law.
`
`
`In re Brown, 119 USPQ2d 1350, 1351 (TTAB 2016) (emphasis added); see also TMEP § 907.
`
`Further, Price4Less must establish the grounds for its unlawful use claim by clear and convincing
`
`evidence and “the proofs submitted by the party charging noncompliance must leave no room for
`
`doubt, speculation, surmise, or interpretation.” Santinine Societa v. P.A.B. Produits, 209 USPQ
`
`
`
`8
`
`

`

`958, 965 (TTAB 1981); see also Gen. Mills Inc. v. Health Valley Foods, 24 USPQ2d 1270 (TTAB
`
`1992).
`
`None of the documents submitted by Price4Less show a finding by a court or federal
`
`agency that Blackstone violated any law in its use of the CHOSEN1 trademark, nor do the
`
`documents show that Blackstone’s application-relevant activities involve a per se violation of
`
`federal law. Thus, there is no evidentiary basis for the Board to rule in Price4Less’ favor and deem
`
`Blackstone’s use of CHOSEN1 unlawful.
`
`Although Price4Less failed to offer materials sufficient to establish its right to judgment if
`
`unopposed (and, therefore, has not shifted the burden to Blackstone to proffer countering
`
`evidence), Blackstone submits herewith a declaration from its Chief Operating Officer attesting to
`
`lawful use of the mark since November of 2015, as well as declarations from a chemistry expert
`
`attesting to and supporting the legality of the ingredients in its CHOSEN1 product. Exh. B at ¶ 4;
`
`see generally Exh. E. This evidence, which “is to be believed,” precludes disposition of
`
`Blackstone’s likelihood of confusion claim. See TBMP § 528.01.
`
`III. CONCLUSION
`
`
`
`WHEREFORE, Blackstone respectfully requests that the Board deny Price4Less’ Motion
`
`for Summary Judgment.
`
`Respectfully submitted this 12th day of January, 2023,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Jessica H. Leach
`Jessica H. Leach, Esq.
`The Law Office of Arthur W. Leach
`4080 McGinnis Ferry Rd, Suite 401
`Alpharetta, Georgia 30005
`Direct: (678) 799-0474
`Jessica@ArthurWLeach.com
`
`
`
`
`
`Attorney for Petitioner Blackstone Labs, LLC
`
`9
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing was served on January 12, 2023 upon
`
`Price4Less’ correspondent, Tameika Price, at the following email address of record:
`
`unot4gotten@gmail.com
`
`
`
`
`
`
`/s/ Jessica H. Leach
`Jessica H. Leach, Esq.
`
`10
`
`

`

`EXHIBIT A
`EXHIBIT A
`
`

`

`PTO- 1957
`
`Approved for use through 11/30/2023. OMB 0651-0050
`
`U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE
`Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number
`
`Response to Office Action
`
`The table below presents the data as entered.
`
`Input Field
`
`Entered
`
`SERIAL NUMBER
`
`LAW OFFICE ASSIGNED
`
`MARK SECTION
`
`MARK FILE NAME
`
`LITERAL ELEMENT
`
`STANDARD CHARACTERS
`
`USPTO-GENERATED IMAGE
`
`GOODS AND/OR SERVICES SECTION (current)
`
`INTERNATIONAL CLASS
`
`DESCRIPTION
`
`90201053
`
`LAW OFFICE 109
`
`https://tmng-al.uspto.gov/resting2/api/img/90201053/large
`
`CHOISIE1
`
`NO
`
`NO
`
`035
`
`Online retail store services featuring beauty and health products
`
`FILING BASIS
`
`Section 1(a)
`
`        FIRST USE ANYWHERE DATE
`
`At least as early as 02/25/2021
`
`        FIRST USE IN COMMERCE DATE
`
`At least as early as 02/25/2021
`
`GOODS AND/OR SERVICES SECTION (proposed)
`
`INTERNATIONAL CLASS
`
`DESCRIPTION
`
`035
`
`Online retail store services featuring beauty and health products
`
`FILING BASIS
`
`Section 1(a)
`
`       FIRST USE ANYWHERE DATE
`
`At least as early as 07/07/2020
`
`       FIRST USE IN COMMERCE DATE
`
`At least as early as 08/07/2020
`
`        WEBPAGE URL
`
`        WEBPAGE DATE OF ACCESS
`
`CORRESPONDENCE INFORMATION (current)
`
`NAME
`
`None Provided
`
`None Provided
`
`Price4less
`
`PRIMARY EMAIL ADDRESS FOR CORRESPONDENCE
`
`unot4gotten@gmail.com
`
`SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES)
`
`info@choisie1.com
`
`CORRESPONDENCE INFORMATION (proposed)
`
`NAME
`
`Price4less
`
`PRIMARY EMAIL ADDRESS FOR CORRESPONDENCE
`
`unot4gotten@gmail.com
`
`SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES)
`
`info@choisie1.com
`
`

`

`SIGNATURE SECTION
`
`DECLARATION SIGNATURE
`
`SIGNATORY'S NAME
`
`SIGNATORY'S POSITION
`
`SIGNATORY'S PHONE NUMBER
`
`DATE SIGNED
`
`SIGNATURE METHOD
`
`RESPONSE SIGNATURE
`
`SIGNATORY'S NAME
`
`SIGNATORY'S POSITION
`
`SIGNATORY'S PHONE NUMBER
`
`DATE SIGNED
`
`/Tameika Price/
`
`/Tameika Price/
`
`Owner
`
`9722105556
`
`06/28/2021
`
`Signed directly within the form
`
`/Tameika Price/
`
`/Tameika Price/
`
`Owner
`
`9722105556
`
`06/28/2021
`
`ROLE OF AUTHORIZED SIGNATORY
`
`Owner/Holder not represented by an attorney
`
`SIGNATURE METHOD
`
`Signed directly within the form
`
`FILING INFORMATION SECTION
`
`SUBMIT DATE
`
`Mon Jun 28 21:45:47 ET 2021
`
`TEAS STAMP
`
`USPTO/ROA-XXXX:XXXX:XXXX:
`XXXX:XXXX:XXXX:XXXX:XXXX-
`20210628214547740794-9020
`1053-780131dbeee951099179
`d3a2950dba33dbd7a472fb121
`0363f75c474273cad33f-N/A-
`N/A-20210628212840803173
`
`PTO- 1957
`
`Approved for use through 11/30/2023. OMB 0651-0050
`
`U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE
`Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number
`
`To the Commissioner for Trademarks:
`
`Response to Office Action
`
`Application serial no. 90201053 CHOISIE1 (Stylized and/or with Design, see https://tmng-al.uspto.gov /resting2/api/img/9020105 3/large) has
`been amended as follows:
`
`CLASSIFICATION AND LISTING OF GOODS/SERVICES
`
`Applicant proposes to amend the following:
`
`Current:
`Class 035 for Online retail store services featuring beauty and health products
`Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is
`using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark
`was first used at least as early as 02/25/2021 and first used in commerce at least as early as 02/25/2021 , and is now in use in such commerce.
`
`Proposed:
`Class 035 for Online retail store services featuring beauty and health products
`
`

`

`Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is
`using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark
`was first used at least as early as 07/07/2020 and first used in commerce at least as early as 08/07/2020 , and is now in use in such commerce.
`
`Webpage URL: None Provided
`Webpage Date of Access: None Provided
`
`Correspondence Information (current):
`      Price4less
`      PRIMARY EMAIL FOR CORRESPONDENCE: unot4gotten@gmail.com
`      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): info@choisie1.com
`
`Correspondence Information (proposed):
`      Price4less
`      PRIMARY EMAIL FOR CORRESPONDENCE: unot4gotten@gmail.com
`      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): info@choisie1.com
`
`Requirement for Email and Electronic Filing: I understand that a valid email address must be maintained by the owner/holder and the
`owner's/holder's attorney, if appointed, and that all official trademark correspondence must be submitted via the Trademark Electronic
`Application System (TEAS).
`
`SIGNATURE(S)
`Declaration Signature
`
`DECLARATION: The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both,
`under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or
`any registration resulting therefrom, declares that, if the applicant submitted the application or allegation of use (AOU) unsigned, all
`statements in the application or AOU and this submission based on the signatory's own knowledge are true, and all statements in the
`application or AOU and this submission made on information and belief are believed to be true.
`
`STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AOU: If the applicant filed an unsigned application under 15 U.S.C.
`§1051(a) or AOU under 15 U.S.C. §1051(c), the signatory additionally believes that: the applicant is the owner of the mark sought to be
`registered; the mark is in use in commerce and was in use in commerce as of the filing date of the application or AOU on or in connection with
`the goods/services/collective membership organization in the application or AOU; the original specimen(s), if applicable, shows the mark in use
`in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in
`the application or AOU; for a collective trademark, collective service mark, collective membership mark application, or certification mark
`application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over the
`use of the mark in commerce as of the filing date of the application or AOU; for a certification mark application, the applicant is not engaged in
`the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification
`program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no
`other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce,
`either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective
`membership organization of such other persons, to cause confusion or mistake, or to deceive.
`
`STATEMENTS FOR UNSIGNED SECTION 1(b)/SECTION 44 APPLICATION AND FOR SECTION 66(a)
`COLLECTIVE/CERTIFICATION MARK APPLICATION: If the applicant filed an unsigned application under 15 U.S.C. §§ 1051(b),
`1126(d), and/or 1126(e), or filed a collective/certification mark application under 15 U.S.C. §1141f(a), the signatory additionally believes that:
`for a trademark or service mark application, the applicant is entitled to use the mark in commerce on or in connection with the goods/services
`specified in the application; the applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in
`commerce as of the application filing date; for a collective trademark, collective service mark, collective membership mark, or certification
`mark application, the applicant has a bona fide intention, and is entitled, to exercise legitimate control over the use of the mark in commerce and
`had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce as of the application filing date;
`the signatory is properly authorized to execute the declaration on behalf of the applicant; for a certification mark application, the applicant will
`not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the
`certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge
`and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in
`commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the
`goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.
`
`

`

`Signature: /Tameika Price/      Date: 06/28/2021
`Signatory's Name: /Tameika Price/
`Signatory's Position: Owner
`Signatory's Phone Number: 9722105556
`
`Signature method: Signed directly within the form
`
`Response Signature
`Signature: /Tameika Price/     Date: 06/28/2021
`Signatory's Name: /Tameika Price/
`Signatory's Position: Owner
`
`Signatory's Phone Number: 9722105556 Signature method: Signed directly within the form
`
`The signatory has confirmed that he/she is not represented by an authorized attorney, and that he/she is either: (1) the owner/holder; or (2) a
`person or persons with legal authority to bind the owner/holder; and if he/she had previously been represented by an attorney in this matter, either
`he/she revoked their power of attorney by filing a signed revocation with the USPTO or the USPTO has granted this attorney's withdrawal
`request.
`
`Mailing Address:    Price4less
`   
`   
`   11816 Inwood Rd #3079
`   Dallas, Texas 75244
`Mailing Address:    Price4less
`   11816 Inwood Rd #3079
`   Dallas, Texas 75244
`        
`Serial Number: 90201053
`Internet Transmission Date: Mon Jun 28 21:45:47 ET 2021
`TEAS Stamp: USPTO/ROA-XXXX:XXXX:XXXX:XXXX:XXXX:XXXX:
`XXXX:XXXX-20210628214547740794-90201053-
`780131dbeee951099179d3a2950dba33dbd7a472
`fb1210363f75c474273cad33f-N/A-N/A-202106
`28212840803173
` 
`
`

`

`EXHIBIT B
`EXHIBIT B
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`)
`
`BLACKSTONE LABS, LLC,
`)
`
`
`
`
`
`
`)
`
`
`
`Petitioner,
`
`)
`
`
`
`
`
`
`)
`
`v.
`
`
`
`
`)
`
`
`
`
`
`
`)
`
`PRICE4LESS LLC,
`
`
`)
`
`
`
`
`
`
`)
`
`
`
`Respondent.
`
`____________________________________)
`
`
`
`
`Cancellation No. 92080132
`In re U.S. Registration No. 6542981
`
`DECLARATION OF RICHARD NEWTON IN SUPPORT OF
`BLACKSTONE LABS, LLC’S RESPONSE IN OPPOSITION TO
`PRICE4LESS LLC’S MOTION FOR SUMMARY JUDGMENT
`
`
`
`
`I, RICHARD NEWTON, being duly sworn, hereby affirm the following:
`
`1.
`
`My full legal name is Richard Newton. However, I am generally known by the
`
`name “JR” Newton.
`
`2.
`
`I am employed by Blackstone Labs, LLC (“Blackstone”) as Chief Operating
`
`Officer. My employment with Blackstone began in calendar year 2014.
`
`3.
`
`4.
`
`By virtue of my position, I have personal knowledge of the facts set out herein.
`
`Blackstone began using the trademark CHOSEN1 in connection with dietary
`
`supplements no later than November 11, 2015.
`
`5.
`
`Blackstone has never used the trademark CHOSEN1 in connection with goods
`
`containing unlawful drugs or controlled substances.
`
`The signatory, being warned that willful false statements and the like are punishable by
`
`fine or imprisonment, declares under penalty of perjury that the foregoing is true and correct.
`
`
`
`
`
`Declaration of Richard Newton
`
`
`
`
`Page 1 of 2
`
`

`

`Executed this
`
`(| of December, 2022.
`
`=
`
`Richard “JR” Newton
`
`Declaration of Richard Newton
`
`Page ? of 2
`
`

`

`EXHIBIT C
`EXHIBIT C
`
`

`

`EXHIBIT PAGE 1 EXHIBIT PAGE1
`
`00000 ~~»
`
`
`
`HOME BLOG|CARTSUPPLEMENTS STACKS APPAREL FORUMS
`
`
`
`
`
`
`
`< Products
`
` CHOSENT
`
`eee
`
`ae ee
`
`Pa if
`SAMEDAYSHIPPING
`a]cr aad
`ORDERSPLACEDBEFORENOONEST
`TRGBer a% 4-7BUSINESSDAYSDOMESTIC
`
`da aRas
`
`= PF
`
`f
`
`Pee
`
`WHILE SUPPLIES LAST
`
`Tyoe: Supplement
`
`| ea Le
`|
`Email
`MUeM LNVMae
`
`es
`
`Blackstone Labs Presents: Chosen’ | Chosen by Destiny
`
`ra
`
`

`

`EXHIBIT PAGE2
`
`1 Testosterone
`
`Ey
`
`EXHIBIT PAGE 2
`1-AD
`
`DOSAGE INSTRUCTIONS
`
`
`
`Supplement Facts
`Serving Size: 1 Tablet
`Servings Per Container: 60
`Ba
`Amount Per Sale
`e111
`
`* Daily Value (DV) Not Established
`
`1-DHEA Blend
`1 androstene-3b-ol,17-one,
`1 androstene-3b-ol,17-one Undecanoate,
`| androstene-3b-ol,17-one Caprylate
`
`Other Ingredients: Microcrystalline Cellulose, Phosphatidyicholine,
`Hydroxypropyl-beta-cyclodextrin (HP&CD), Phytasterol, Stearic Acid,
`Magnesium Stearate, Starch, Titanium Dioxide, Silica, FD&C Red #40
`
`PRE-SALE: SHIPS THURSDAY NOVEMBER 19TH
`
`RELATED ITEMS
`
`

`

`c
`
`CG
`
`@ web.archive.org/web/20160403212045/http://|
`
`[httpttp:/‘blacks tonelabs com)/productsmcts /chossend
`BLACKSTONE OSes OSL
`
`iillHQseen,
`
`EXHIBIT PAGE 3
`
`TU anaeeOO) NM OUR UEMeaa aeTU ea a bd
`
`Cue |
`
`asl k=
`
`ray
`
`:
`
`ABS—
`
`DESNL
`Mt ry
`ayBy Wao
`
`“
`
`hea
`eS
`~
`
`aT
`
`$ 79.99
`
`© One-time purchase $79.99
`
`LP NO