Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1257435
`
`Filing date:
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`01/02/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Ex Parte Appeal -
`Serial No.
`
`97040503
`
`Appellant
`
`Enhanced Immune, LLC
`
`Applied for mark
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`FAST ACTING IMMUNE BOOST
`
`Correspondence
`address
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`Submission
`
`Attachments
`
`Appealed class
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`JOHN L. ROGITZ
`ROGITZ & ASSOCIATES
`4420 HOTEL CIRCLE COURT, SUITE 230
`SAN DIEGO, CA 92108
`UNITED STATES
`Primary email: john@rogitz.com
`Secondary email(s): noelle@rogitz.com
`619-338-8075
`
`Appeal brief
`
`1285-007.T Appeal Brief.pdf(676691 bytes )
`
`Class 005. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Dietary supplements
`
`John L. Rogitz
`
`john@rogitz.com, Noelle@rogitz.com, John.m.rogitz@rogitz.com
`
`/John L. Rogitz/
`
`01/02/2023
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`In re Application of Enhanced Immune, LLC _)~~Law Office: 126
`)
`)
`)
`) Attorney Docket No, 1285-007.T
`)
`Mark: FAST ACTING IMMUNE BOOST_) January 2, 2023
`
`)
`2635 Camino del Rio South, Suite 211
`)
`San Diego, CA 92108
`
`Serial No.: 97/040,503
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`Examining Attorney: Johnson
`
`Filed: September 22, 2021
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`
`
`APPEAL BRIEF
`
`Commissioner of Trademarks
`
`DearSir:
`
`This Appeal Brief is submitted in response to the final Office Action dated
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`December1, 2022 and further to Appellant’s Notice of Appeal filed December 13, 2022.
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`TABLE OF CONTENTS
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`SectionTitle Page
`(1)
`Nature and Status of Proceedings......ccccccceseetseeseeteserereeees
`(2)
`Statement Of Facts......cccccssscesscssseesesteetseessecesseesteseteesenees
`(3)
`Issue Presented... .cccesecssccsseesecssecssectsessseeeneseneeseseeenseesteeesses
`(4)
`ALQUMENI... eee cccseceeceeseceeseceeseessaeseeeeseesnsectesesseseteeseaeeseaeees
`(5)
`CONCLUSION... ceececcecceesersesteeteeeteetsceseseensesteeneersaseeesensensersaeed
`Appx. A
`EVideNCO... eeceeseceseesserseceerseceeesseeeceeeeessseeseeneseasersesneeenaee
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`vArRuURSS
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`Feet
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`1285-007,T APP
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 2
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`Cases:
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`TRADEMARK
`Filed: September22, 2021
`
`TABLE OF AUTHORITIES
`
`Association ofCo-operative Members, Inc. v. Farmland Industries, Inc. 684 F.2d
`
`1134 (5th Cir. 1982), cert. denied, 460 U.S. 1038 (1983)......cccceceeeee eee e teen teen e anaes 7
`
`Citibank, N.A. v. Citibane Group, Inc., 724 F.2d 1540, 222 U.S.P.Q. 292 (11th
`
`Cir.), reh’g denied, 731 F.2d 891 (11th Cir. 1984)... cece eee ee teeter enter nent een 5
`
`DuoProSS Meditech Corp.v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251-52,
`13 USPQ2d 1753, 1755 (Fed. Cir. 2012)... ccc cece reer renee5
`Inre Bed-Check Corp., 226 USPQ 946, 948 (TTAB 1985)......ccceceeeee eee ne eens 13
`Inre Bel Paese Sales Co., Inc., 1 USPQ2d 1233, 1236 (TTAB 1986)...........4.13
`Inre Conductive Systems, Inc., 220 U.S.P.Q. 84, 86 (T.T.A.B. 1986).........6613
`Inve George Weston Ltd., 228 USPQ 57 (TTAB 1985).......c cc cecee eee ee reece5, 6
`Inre MortonNorwich Products, Inc., 209 USPQ 791, 791 (TTAB 1981)......... 13
`In re N.C. Lottery, 866 F.3d 1363, 1367, 123 USPQ2d 1707, 1709 (Fed. Cir.
`
`QOLcc ccc ccc cee ener ee eee ene eee eee EE ELEN EEE EEE EEE EEE EET EERE EE EEE EEE EEO 5
`
`Inre Quik-Print Copy Shop, Inc., 205 U.S.P.Q. 505, 507 n.7 (C.C.P.A. 1980)...11
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`Inre Shutts, 217 USPQ 363, 364-65 (TTAB 1983).........ccccceeee eee en enen ees 6, 7
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`Inre Tennis in the Round Inc., 199 USPQ 496, 498 (TTAB 1978)..........cee 6
`
`Nautilus Group Inc. v. ICON Health & Fitness Inc., 71 U.S.P.Q.2d 1173, 1181
`(Fed. Cit, 2004)..cc.ccccscscsecsesscsescscsececseeeteusetenseenseeetsensnseeentiesetnesirnieetss 5,6
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`Two Pesos, Inc. v. Taco Cabana, Inc., 23 USPQ2d 1081, 1083 (U.S. 1992),....... 5
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 3
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`TRADEMARK
`Filed: September22, 2021
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`Other Authorities
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`15 U.S.C. § LOS2(€)(L) ccc cece eee teen rr e EEE EG4,5, 13
`https://ocre.net/how-does-the-body-metabolize-medication/.....ccssseeeeeeneees 8
`https://www.cdc.gov/nchs/products/databriefs/db399Ht...7
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`TMEP 1209.01(a)...ccccccccccccsececsescsstecsseecssecessecsateessresenteeeenteeeenee 5,6
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`1285-007.T
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`

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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 4
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`TRADEMARK
`Filed: September22, 2021
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`(1)
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`NATURE AND STATUS OF PROCEEDINGS
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`This is an appeal by Enhanced Immune, LLC,hereafter “Appellant”, from a final refusal to
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`register by the U.S. Patent and Trademark Office’s Examining Attorney. The Office has refused
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`registration of the mark FAST ACTING IMMUNE BOOST on the ground that
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`it
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`is merely
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`descriptive of Appellant’s goods (dietary supplements) under Section 2(e) of the Trademark Act, 15
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`U.S.C. § 1052(e)(1). This is Appellant’s Appeal Brief in responseto the final refusal.
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`(2)
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`STATEMENT OF FACTS
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`On September 22, 2021, Appellant filed an application with the Office to register the mark
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`FAST ACTING IMMUNEBOOSTfordietary supplements in International Class 5. On June 30,
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`2022, a first Office Action was issued. The first Office Action included a refusal of registration of
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`the mark on the Principal Register on the basis of descriptiveness. Appellant filed a timely response
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`addressing this issue, traversing the descriptiveness refusal. On December1, 2022, a second Office
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`Action was issued in which the refusal to register on the basis of mere descriptiveness was made
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`final. Appellant filed a Notice of Appeal on December 13, 2022.
`
`(3)
`
`ISSUE PRESENTED
`
`This appealis directed to the issue of whether the mark FAST ACTING IMMUNE BOOST
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`is merely descriptive of Appellant’s goods.
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 5
`
`(4)
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`ARGUMENT
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`TRADEMARK
`Filed: September22, 2021
`
`
`
`For a mark to beentitled to registration on the Principal Register, the mark “must be capable
`
`of distinguishing the applicant’s goods from those of others.” Two Pesos, Inc. v. Taco Cabana, Inc.,
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`23 USPQ2d 1081, 1083 (U.S. 1992) (citing 15 U.S.C. § 1052(e)(1)).
`
`Asrelevanthere, the test for determining whethera term is merely descriptive or whetherthe
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`term is suggestive and therefore deserving of trademarkprotection is set forth in TMEP 1209.01(a):
`
`“Suggestive marks are those that, when applied to the goods or services at issue, require
`
`imagination, thought, or perception to reach a conclusionas to the nature of those goods or services.
`
`In re NC. Lottery, 866 F.3d 1363, 1367, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing
`
`DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251-52, 13 USPQ2d 1753,
`
`1755 (Fed. Cir, 2012))...Thus, a suggestive term differs from a descriptive term, which immediately
`
`tells something about the goods or services. See In re George Weston Ltd., 228 USPQ 57 (TTAB
`
`1985).”
`
`Accordingly,
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`the difference between descriptive and suggestive marks turns on the
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`immediacy and directness leading from the mark to the particular characteristic of the goods or
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`services. If one must exercise mature thought or follow a multi-stage reasoning process in orderto
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`infer what characteristics a term implies in relation to the applied-for goods, or if the term conveys
`
`multiple meanings, then the term is suggestive rather than merely descriptive. See Citibank, N.A. v.
`
`Citibanc Group, Inc., 724 F.2d 1540, 222 U.S.P.Q. 292 (11th Cir.), reh’g denied, 731 F.2d 891 (1 1th
`
`Cir. 1984) (holding CITIBANKat most suggestive, and not merely descriptive, of an urban bank).
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`Indeed, descriptive marks require “no exercise of the imagination to be understood.” Nautilus Group
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 6
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`TRADEMARK
`Filed: September22, 2021
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`Inc.
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`vy. ICON Health & Fitness Inc., 71 U.S.P.Q.2d 1173, 1181 (Fed. Cir. 2004) (internal quotation
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`and citation omitted).
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`TMEP 1209.01(a) goes on to indicate that “[iJincongruity is a strong indication that a mark is
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`suggestive rather than merely descriptive. In re Tennis in the Round Inc., 199 USPQ 496, 498
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`(TTAB 1978)... The Board has described incongruity in a mark as ‘one of the accepted guideposts in
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`the evolved set of legal principles for discriminating the suggestive from the descriptive mark,’ and
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`has noted that the concept of mere descriptiveness ‘should not penalize coinage of hitherto unused
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`and somewhat incongruous word combinations whose import would not be grasped without some
`measure of imagination and ‘mental pause.’’ In re Shutts, 217 USPQ 363, 364-65 (TTAB
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`1983)...{A] designation does not have to be devoid of all meaning in relation to the goods or
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`services to be registrable [emphasis added].”
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`i.
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`The Mark As A Whole Is At Most Suggestive
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`The conceptual error underlying the refusal is that “fast acting immune boost” somehow
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`describes the goods themselves. However,it does not at least for the following reasons.
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`Appellant does not feign that the mark is devoid of all meaning in relation to Appellant’s
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`goods, but FAST ACTING IMMUNE BOOSTis not merely descriptive of Appellant’s goods
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`because it does not convey an immediate idea of the ingredients, qualities or characteristics of the
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`goods themselves — dietary supplements — per In re George Weston Ltd., inter alia. Specifically, a
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`consumer must go through at least a few mental steps to glean any concrete information regarding
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`the goods from the mark because the words of the mark as used in unitary combination reference
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 7
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`TRADEMARK.
`Filed: September22, 2021
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`immunity, not dietary supplements. This establishes an “unused and somewhat incongruous word
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`combination[] whose import would not be grasped without some measure of imagination and
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`‘mental pause’? per In re Shutts, supra since resistance to infection is not
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`ipso facto tied to
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`effectiveness (characteristic) of dietary supplements and there is no evidence of record proving as
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`much. Thus, the mark is at most suggestive as a single-step, instantaneous impression on the part of
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`the ordinary consumer as to the immediate nature of the goods is not possible due to this
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`incongruity. Indeed, “[c]ommon words in which no one may acquire a trademark because they are
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`descriptive or generic may, when used in combination, become a valid trademark.” Association of
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`Co-operative Members, Inc. v. Farmland Industries, Inc. 684 F.2d 1134 (Sth Cir. 1982), cert. denied,
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`460 U.S. 1038 (1983).
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`
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`
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`il.
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`Office Action Allegations
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`In relation to the initial basis for the refusal from the first Office Action dated June 30, 2022,
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`the refusal was based on the allegation that the mark FAST ACTING IMMUNEBOOST“merely
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`describes applicant’s goods [dietary supplements] because applicant offers dietary supplements that
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`quickly improve[]
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`the user’s resistance to infection.” The ensuing final Office Action dated
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`December1, 2022 then uses similar language.
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`As an initial matter, the allegations that dietary supplements “quickly improve the user’s
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`resistance to infection” are without foundation. There is currently no way for the relevant consumer
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`to understand that any dietary supplement, which a sizable percentage of the population do not take
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`(National Center for Health Statistics (https://www.cdc.gov/nchs/products/databriefs/db399.htm)),
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 8
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`TRADEMARK
`Filed: September22, 2021
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`would in fact “quickly improve”resistance to infection. Were it otherwise, one might have expected
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`the CDC to exhort the taking of dietary supplements during the recent pandemic. This the CDC did
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`not do to the best of Appellant’s knowledge.
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`Moreover, none of the terms in the markarticulate what is actually recited in the goods, and
`not a single term in the identification of goods appears in the mark. Neitherthe terms of the mark nor
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`any of the proffered definitions in June 30, 2022 Office Action for the individual termsin the mark
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`conjure any mental image ofa product, much less a dietary supplement. For example, the proffered
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`definition for “FAST ACTING”is “to take effect quickly”, but this does not describe any product,
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`much less a dietary supplement that may in fact be metabolized over a lengthy period of time.
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`Indeed, according to the Orlando Clinical Research Center (see https://ocre.net/how-does-the-body-
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`metabolize-medication/), the rate of metabolization varies according to a wide variety of factors, and
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`whether the consumer considers any of the periods discussed as being “fast” or as “taking effect
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`quickly”is entirely subjective. No onein fact may harbor such a view,andthis is problematic for the
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`refusal.
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`Likewise, the proffered definition for “IMMUNE”(“resistant to infection”) fails to describe a
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`dietary supplement. Indeed, “resistance to infection” more readily conjures mental
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`images of
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`vaccines and masks than dietary supplements. Similarly, the proffered definition for “BOOST”(“to
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`help or encourage something to increase or improve”) may apply to almost any goodorservice, as
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`few goods and services are not intended to help or encourage improvement in “something”. It thus
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`can mean nothing specific in terms of dietary supplements.
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 9
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`TRADEMARK
`Filed: September22, 2021
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`FAST ACTING IMMUNE BOOSTis thus at most suggestive of dietary supplements, but
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`even that is probably a bridgetoo far given the definitional analysis above. The mark unquestionably
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`requires some imagination, thought, or perception to conjure a mental image of the stated goods,
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`which may be readily sold by competitors without necessitating use of the term “fast acting immune
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`boost”.
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`The December 1, 2022 final Office Action responds to much of the foregoing by citing
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`authority for the proposition that the determination of whether a mark is merely descriptive is made
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`in relation to Appellant’s goods, not in the abstract. But the problem here is that regardless of
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`whetherthe determination is made in relation to Appellant’s goodsorin the abstract, the markitself
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`still does not immediately convey information about the goods themselves.
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`Consider the multiple incongruities that exist in the mark. One incongruity arises from the
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`fact that there is no evidence of record that supplements actually boost your immunity to anything.
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`There is also nothing on the record indicating what the relevant consumer considers to be “fast-
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`acting” as opposed to, say, “slow-acting”. There’s similarly nothing on the record that the ordinary
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`consumer themselves would consider Appellant’s goods in particular to be “fast-acting” under
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`whatever subjective meaning might be assigned to the term. Thus, at minimum the ordinary
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`consumer must exercise a multi-stage reasoning process to discern that the nature of the goods
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`themselves.
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`/I
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`H/
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`1285-007.T
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`j
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 10
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`TRADEMARK.
`Filed: September 22, 2021
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`ill.
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`Appellant’s website uses the terms of the mark individually and only in the
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`combination sought to be registered using capitalletters to denote the markitself
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`Appellant also wishes to address the quote from its website and accompanying screen shots
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`as containedin the final Office Action. Please note that Appellant’s website at best uses the terms of
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`the mark individually, and only in the combination sought to be registered using capital letters to
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`denote the markitself rather than characteristics of the associated goods.
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`In addition, the website is at most evidence of how Appellantis trying to market the product,
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`not of how the relevant consumer might immediately leap from seeing the mark itself to thinking
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`“Aha! Dietary supplement!”. Therefore, since Appellant’s website, like the markitself, is nothing
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`more than an attempt to market Appellant’s product, using it as evidence of descriptiveness results in
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`a non-sequitur: “Applicant uses the mark, therefore it is descriptive”.
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`Moreover,
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`the use by the examining attorney of Appellant’s website to demonstrate
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`descriptiveness underscores the fact that the relevant consumer requires Appellant to link the mark to
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`the discussion on the website cited by the examining attorney in order to know what the markis
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`being used for. In effect, the examining attorney’s use of Appellant's own website is an admission
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`that the mark does not describe the goods unless Appellant takes the relevant consumerby the hand
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`and walks the consumerthrough a product description.
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`iv.
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`Screen Shots from Final Office Action
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`While Appellant is also cognizant of the third-party screen shots included with the final
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`Office Action, notably none of those third-parties use FAST ACTING IMMUNE BOOSTas a
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page11
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`TRADEMARK
`Filed: September22, 2021
`
`whole. Appellant alone combined these terms to form a catchy and appealing mark, not to merely
`
`describe the ingredients, qualities or characteristics of the goods themselves. On that, note that
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`“merely” is considered to mean “only”. In re Quik-Print Copy Shop, Inc., 205 U.S.P.Q. 505, 507 n.7
`(C.CP.A. 1980). And the unitary markitself is still not merely descriptive for reasons set forth
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`above.
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`
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`
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`v.
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`The Office has previously registered the
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`term “IMMUNE”
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`in
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`combination with other suggestive terms for the same international class as the present
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`application (Class 5), creating doubtasto its descriptiveness in this context.
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`As another basis for reversal, a search of Office records reveals that the term “immune”is
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`not considered to be merely descriptive in all cases. The Office has allowed the term “immune”to be
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`registered as part of other marks that use it in similar contexts for dietary supplements. While
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`Appellant is cognizant that prior registrations are not necessarily dispositive of the issue in the
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`present instance, they do offer probative value, or at the very least create doubt as to whether
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`Appellant’s mark FAST ACTING IMMUNEBOOSTis merely descriptive.
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`As a few examples of live marks that have been registered on the Principal Register in
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`International Class 5 with the word “immune” or a derivative forming part of the mark, consider the
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`following registrations. Each is used in connection with goods involving supplements, yet each was
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`still permitted to be registered on the Principal Register:
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`MH]
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`1285-007.T
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`TRADEMARK
`Filed: September22, 2021
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 12
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`Mark
`U.S. Reg. No.
`Goods and Services
`
`Immune 365
`6,937,845
`IC 005. US 005 006 018 044 046 051 052. G & S: Dietary
`supplements; Dietary supplements for human consumption,
`Dietary supplements for humans; Dietary and nutritional
`supplements;
`Herbal
`supplements;
`Natural
`dietary
`supplements; Nutraceuticals for use as a dietary supplement,
`Nutritional supplements; Vitamin supplements; Vitamin and
`mineral supplements; Mineral nutritional supplements; Natural
`herbal supplements.
`
`Immune Treats|6,934,008 IC 005. US 005 006 018 044 046 051 052. G & S: Vitamin
`supplements; Liquid vitamin supplements. FIRST USE:
`20200301. FIRST USE IN COMMERCE: 20200301
`IC 032. US 045 046 048. G & S: Fruit juice beverages;
`Vegetable-fruit juices. FIRST USE: 20200301. FIRST USE IN
`COMMERCE: 20200301
`3,956,634
`IC 005. US 006 018 044 046 051 052. G & S: Herbal
`supplements for use as an immune system enhancer, Herbal
`supplements to stimulate the immune system to combat
`pathogens; Herbal supplements for alleviation of chronic
`fatique; Herbal
`supplements
`to
`increase
`resistance
`to
`environmental
`stress and to increase endurance; Herbal
`supplements
`for use
`as
`an
`anti-inflammatory; Herbal
`supplements to restore Chi
`(energy); Herbal preparations
`containing
`a
`combination
`of Echinacea
`angustifolia,
`Ashwagandha
`(Withania
`somnifera), Reishi Mushroom
`(Ganoderma lucidum), Cat's Claw (Uncaria tomentosa),
`Siberian Ginseng (Eleutherococcus senticosis), and Astragalus
`(Astragalus membranaceus). FIRST USE: 19990412. FIRST
`USE IN COMMERCE: 19990412
`
`
`
` Immuboost
`
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`See Appendix A,attached to the end of this Appeal Brief, which includes USPTO website
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`pages for the three marks from the table above as accessed on January 2, 2023. These registrations
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`indicate that the term “immune,” when used both (1) in connection with other suggestive terms and
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`(2) specifically in relation to supplements in IC 5,
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`is nonetheless still capable of distinguishing
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`certain supplements from others in the marketplace. These additional registrations therefore seem to
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`1285-007.T
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`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 13
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`TRADEMARK
`Filed: September22, 2021
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`demonstrate Office inconsistency in the context of the present application and create further doubt as
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`to whether Appellant’s mark FAST ACTING IMMUNE BOOSTshould be considered merely
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`descriptive — doubt which should be resolved in Appellant’s favor.
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`vi.
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`Any doubt as to suggestiveness must be resolved in Appellant’sfavor
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`Finally, as alluded to above, while only a fine line might separate descriptiveness from
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`suggestiveness in some cases, any doubt as to the nature of Appellant’s mark must always be
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`resolved in Appellant’s favor. See In re Conductive Systems, Inc., 220 U.S.P.Q, 84, 86 (T.T.A.B.
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`1986) (doubts under § 2(e) about the merely descriptive nature of a term are resolved in favorof the
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`applicant). Also see In re Bel Paese Sales Co., Inc., 1 USPQ2d 1233, 1236 (TTAB 1986), In re Bed-
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`Check Corp., 226 USPQ 946, 948 (TTAB 1985), and In re MortonNorwich Products, Inc., 209
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`USPQ 791, 791 (TTAB 1981) (“[T]here is a thin line between a suggestive and a merely descriptive
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`designation, and where reasonable men maydiffer, it is the Board’s practice to resolve the doubt in
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`the applicant’s favor and publish the mark for opposition.”).
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`H/
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`[Il
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`1285-007.T
`
`
`
`

`

`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 14
`
`(5)
`
`CONCLUSION
`
`TRADEMARK
`Filed: September22, 2021
`
`It is respectfully submitted that the record supports Appellant’s position that FAST ACTING
`
`IMMUNE BOOSTis not merely descriptive. It is further submitted that the Examining Attorney’s
`
`refusal of registration should be reversed. Accordingly, Appellant respectfully requests reversal of
`
`the refusal as well as approval of the markfor publication and registration on the Principal Register.
`
`
`
`Respectfully submitted,
`Enhanced Immune, LLC
`
`By /John L. Rogitz/
`
`
`John L. Rogitz
`Attorney for Appellant
`Registration No. 33,549
`2635 Camino del Rio South, Suite 211
`San Diego, CA 92108
`Telephone:
`(619) 338-8075
`
`JMR:ncr
`
`CERTIFICATE OF FILING
`
`I hereby certify that this brief in support of Application Ser. No. 97/040,503 was
`
`electronically filed through ESTTA on this 2nd day of January, 2023.
`
`/John L. Rogitz/
`
`
`John L. Rogitz
`
`1285-007.T
`
`

`

`Case No.: 1285-007.T
`Serial No.: 97/040,503
`January 2, 2023
`Page 15
`
`Appendix A - Evidence
`
`Please see ensuing pages.
`
`TRADEMARK
`Filed: September22, 2021
`
`
`
`
`
`1285-007.T
`
`

`

`Trademark Electronic Search System (TESS)
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`4/2/23, 1:18 PM
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`United States Patent and Traclemark Office
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`Immune 365
`
`IMMUNE 365
`Word Mark
`Goods and_IC 005. US 005 006 018 044 046 051 052. G & S: Dietary supplements; Dietary supplements for human
`Services
`consumption; Dietary supplements for humans; Dietary and nutritional supplements; Herbal supplements;
`Natural dietary supplements; Nutraceuticals for use as a dietary supplement; Nutritional supplements; Vitamin
`supplements; Vitamin and mineral supplements; Mineralnutritional supplements; Natural herbal supplements.
`FIRST USE: 20211001. FIRST USE IN COMMERCE: 20220828
`
`
`
`
`
`Standard
`Characters
`Claimed
`
`Mark
`Drawing
`Code
`Serial
`Number
`
`(4) STANDARD CHARACTER MARK
`
`97298479
`
`1A
`4B
`
`Filing Date March 7, 2022
`Current
`Basis
`Original
`Filing Basis
`Published
`for
`Opposition
`
`August 23, 2022
`
`
`
`https://tmsearch.uspto.gov/bin/showfield?f=doc&state=4809'5x06y1.2.5
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`Page 1 of 2
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`

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`Trademark Electronic Search System (TESS)
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`4/2/23, 1:18 PM
`
`Registration 6937845
`Number
`Registration December27, 2022
`Date
`Owner
`
`(REGISTRANT) Robert P. Polonsky INDIVIDUAL UNITED STATES 6939 Robert Drive South Easton
`MASSACHUSETTS 02375
`
`PRINCIPAL
`
`Attorney of
`Bryan Blanco
`Record
`Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "IMMUNE" APART FROM THE MARK AS
`SHOWN
`Type of=TRADEMARK
`Mark
`Register
`Live/Dead
`Indicator
`
`LIVE
`
`er
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`Immune lreats
`
`Word Mark
`Goods and
`Services
`
`IMMUNE TREATS
`IC 005. US 005 006 018 044 046 051 052. G & S: Vitamin supplements; Liquid vitamin supplements.
`FIRST USE: 20200301. FIRST USE IN COMMERCE: 20200301
`
`IC 032. US 045 046 048. G & S: Fruit juice beverages; Vegetable-fruit juices. FIRST USE: 20200301.
`FIRST USE IN COMMERCE: 20200301
`
`Standard
`Characters
`Claimed
`
`panDrawing
`
`(4) STANDARD CHARACTER MARK
`
`Serial Number
`Filing Date
`Current Basis
`Original Filing
`Basis
`Published for==October 11, 2022
`Opposition
`Registration
`Number
`Registration Date December 27, 2022
`
`97110463
`November5, 2021
`1A
`4A
`
`6934008
`
`
`
`| }
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`hitps://tmsearch.uspto.gov/bin/showfleld?f=doc&state=4809:5x06y1.2.6
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`
`Owner
`
`Attorney of
`Record
`Disclaimer
`
`Type of Mark
`Register
`Live/Dead
`Indicator
`
`(REGISTRANT) ImmuneTreats LIMITED LIABILITY COMPANY GEORGIA 2902 Beryton PI. Snellville
`GEORGIA 30039
`
`.
`Lauren C. Concepcion
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "IMMUNE" APART FROM THE MARK AS
`SHOWN
`TRADEMARK
`PRINCIPAL
`
`LIVE
`
`
`
`
`ress[SrucTUREd[enceFond eovacex]SEARCHOG Tor [neinPrnevusHone] NewUsee
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`IMMUBOOST
`
`IMMUBOOST
`Word Mark
`Goods and IC 005. US 006 018 044 046 051 052. G & S: Herbal supplements for use as an immune system enhancer;
`Services
`Herbal supplementsto stimulate the immune system to combat pathogens; Herbal supplementsforalleviation
`of chronic fatique; Herbal supplements to increase resistance to environmentalstress and to increase
`endurance; Herbal supplementsfor use as an anti-inflammatory; Herbal supplementsto restore Chi (energy);
`Herbal preparations containing a combination of Echinacea angustifolia, Ashwagandha (Withania somnifera),
`Reishi Mushroom (Ganodermalucidum), Cat's Claw (Uncaria tomentosa), Siberian Ginseng (Eleutherococcus
`senticosis), and Astragalus (Astragalus membranaceus). FIRST USE: 19990412. FIRST USE IN
`COMMERCE: 19990412
`
`Standard
`Characters
`Claimed
`
`Mark
`Drawing
`Code
`
`Serial
`Number
`
`Filing Date
`Current
`Basis
`
`Original
`Filing Basis
`
`(4) STANDARD CHARACTER MARK
`
`77954201
`
`March 9, 2010
`
`1A;44E
`
`1A;44D
`
`https://tmsearch.uspto.gov/bin/showfield?f=doc&state=4801:5te5y4.2.21
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`|
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`Trademark Electronic Search System (TESS)
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`1/2/23, 1:17 PM
`
`Published
`for
`Opposition
`Registration
`Number
`Registration
`Date
`Owner
`
`Attorney of
`
`Record.
`Priority
`Date
`Type of
`Mark
`Register
`affidavit
`
`February 22, 2011
`
`3956634
`
`May 10, 2011
`(REGISTRANT) Omega Alpha Pharmaceuticals Inc. CORPORATION CANADA 795 Pharmacy Avenue
`Scarborough, Ontario CANADA M1L3K2
`Christopher J. Hussin
`
`.
`
`September9, 2009
`
`TRADEMARK
`PRINCIPAL
`SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20210831,
`
`Renewal
`
`1ST RENEWAL20210831
`
`Live/Dead
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