Oralabs, Inc. v. Niche-Sales, LLC., 92085534, No. 5 (T.T.A.B. Aug. 5, 2024)

ESTTA Tracking number:
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`ESTTA1375252
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`Filing date:
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`08/05/2024
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`92085534
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`Party
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`Correspondence
`address
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`Submission
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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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`Defendant
`Niche-Sales, LLC.
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`NICHE-SALES, LLC.
`6215 DONEGAL DRIVE
`ORLANDO, FL 32819
`UNITED STATES
`No email provided
`No phone number provided
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`Answer
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`Todd Wengrovsky
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`contact@twlegal.com
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`/Todd Wengrovsky/
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`08/05/2024
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`Attachments
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`Niche Answer Affirmative Defenses.pdf(141655 bytes )
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`-against-
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`Petitioner,
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`Proceeding No. 92085534
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
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`Oralabs, Inc.,
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`Niche-Sales, LLC,
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`Registrant.
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`REGISTRANT’S ANSWER TO
`PETITION TO CANCEL
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`1
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`Registrant Niche-Sales, LLC, by attorney Todd Wengrovsky, hereby responds to the Petition
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`to Cancel filed by Oralabs, Inc. on June 26, 2024, as follows:
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`“APPLICANT’S MARK” SECTION OF PETITION TO CANCEL
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`1. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`2. Registrant is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations contained in this Paragraph of the Petition to Cancel.
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`3. Registrant is without knowledge or information sufficient to form a belief as to the truth of
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`the allegations contained in this Paragraph of the Petition to Cancel.
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`4. Registrant admits the allegations of this Paragraph of the Petition to Cancel.
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`5. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`6. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`7. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`“REGISTRANT AND REGISTRANT’S MARK” SECTION OF PETITION TO CANCEL
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`8. Registrant admits the allegations of this Paragraph of the Petition to Cancel.
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`9. Registrant admits the allegations of this Paragraph of the Petition to Cancel.
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`10. Registrant admits the allegations of this Paragraph of the Petition to Cancel.
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`11. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`12. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`2
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`13. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`14. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`15. Registrant is without knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in this Paragraph of the Petition to Cancel.
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`“REGISTRANT NOT RIGHTFUL OWNER OF MARK FOR IDENTIFIED GOODS OR
`SERVICES” SECTION OF PETITION TO CANCEL
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`16. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`17. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`18. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`19. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`“NON-USE” SECTION OF PETITION TO CANCEL
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`20. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`21. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`22. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`23. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`24. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`3
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`“PRIORITY AND LIKELIHOOD OF CONFUSION” SECTION OF PETITION TO CANCEL
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`25. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`26. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`27. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`28. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel,
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`with the further comment that no permission was necessary.
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`29. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`“NON-USE” SECTION OF PETITION TO CANCEL
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`30. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`31. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`32. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`33. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`34. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`35. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`36. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`“ABANDONMENT” SECTION OF PETITION TO CANCEL
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`37. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`38. Registrant denies each and every allegation of this Paragraph of the Petition to Cancel.
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`4
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`REGISTRANT’S AFFIRMATIVE DEFENSES
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`FIRST AFFIRMATIVE DEFENSE
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`The Petition fails to state a claim upon which relief can be granted.
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`SECOND AFFIRMATIVE DEFENSE
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`Petitioner can not demonstrate injury, impact, or damage as a result of any actions by Registrant.
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`THIRD AFFIRMATIVE DEFENSE
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`Petitioner lacks standing to maintain the Petition to Cancel.
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`FOURTH AFFIRMATIVE DEFENSE
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`Petitioner is barred from recovery by reason of waiver and/or estoppel.
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`FIFTH AFFIRMATIVE DEFENSE
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`Petitioner’s claims are barred by the doctrine of acquiescence.
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`WHEREFORE, Registrant requests that the Petition to Cancel be dismissed in its entirety
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`with prejudice.
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`5
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`Dated: Calverton, New York
` August 5, 2024
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`/s/ Todd Wengrovsky
`Todd Wengrovsky
`Law Offices of
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`Todd Wengrovsky, PLLC.
`285 Southfield Road, Box 585
`Calverton, NY 11933
`Tel (631) 727-3400
` Attorney for Registrant
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`6
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`CERTIFICATE OF SERVICE
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` I
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` hereby certify that on August 5, 2024, a copy of the foregoing Registrant’s Answer to
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`Petition to Cancel was electronically filed with the United States Patent and Trademark Office and
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`that a copy was sent electronically to Petitioner’s attorney of record:
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`JOHN L. WELSH
`WELSH FLAXMAN & GITLER LLC
`1451 DOLLEY MADISON BLVD, SUITE 210
`MCLEAN, VA 22101
`trademarks@iplawsolutions.com
`welsh@iplawsolutions.com
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`/s/ Todd Wengrovsky
`Todd Wengrovsky
`Law Offices of
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`Todd Wengrovsky, PLLC.
`285 Southfield Road, Box 585
`Calverton, NY 11933
`Tel (631) 727-3400
` Attorney for Registrant
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`7
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