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RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC

Docket 91273602, Trademark Trial and Appeal Board (Dec. 22, 2021)
Case TypeOpposition
MarksVAMPIRE
Applicant Vampire Family Brands, LLC
Opposer RiGO Trading S.A, Haribo of America, Inc.
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No. 2 - Notice and Trial Dates Sent; Answer Due:

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 2 (T.T.A.B. Dec. 22, 2021)
An answer filed on paper under these limited circumstances must be accompanied by a Petition to the Director (and the required fee under Trademark Rule 2.6).
A request for Board participation must be made either through ESTTA, or by telephone call to the assigned interlocutory attorney named on the TTABVUE record for this proceeding.
During their conference, the parties are to discuss whether they wish to seek mediation or arbitration, and whether they can stipulate to the Board's Accelerated Case Resolution (ACR) process for a more efficient and cost-effective means of obtaining the Board’s determination of the proceeding.
Regarding the scope and limits of discovery, see TBMP 414; discoverable items may include documents, tangible things, and electronically stored information (ESI).
Regarding the procedures and deadlines for pretrial disclosures and trial, and specifically the noticing, taking, serving and submitting of evidence and testimony, see Trademark Rules 2.120(k), 2.121, 2.122, 2.123 and 2.125, as well as TBMP Chapter 700.
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No. 7 - Vampire Family Brands, LLC Opposition/Response to Motion

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 7 (T.T.A.B. Feb. 24, 2022)
(“VAMPIRE FAMILY BRANDS”), disagrees with Opposer’s analysis of the similarity between this Opposition proceeding and the District Court case.
Paragraph 15 of the Opposition states: “If Applicant is permitted to register Applicant’s Mark, Opposers would be damaged because the registration would be used in an attempt to impair Opposers’ rights to use the descriptive term “vampire” in connection with related goods, including candies.
Essentially, Opposers are claiming in the Opposition Proceeding that if Application Number 3669827 issues, then that would interfere with Opposers sale of gummi candies shaped like a bat – which they call Vampire Bats.
As the Supreme Court stated in B&B Hardware, Inc. v. Hargis Indus., 575 U.S. 138, 147-148 (2015), “the determination of a question directly involved in one action is conclusive as to that question in a second suit.” The idea is straightforward: Once a court has decided an issue, it is forever settled as between the parties, thereby protecting against “the expense and vexation attending multiple lawsuits, conserving judicial resources, and fostering reliance on judicial action by minimizing the possibility of inconsistent verdicts.
Therefore, for reasons of judicial economy, Applicant requests the Board to suspend proceedings until termination of the civil action.
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No. 6 - RiGO Trading S.A, Haribo of America, Inc. Opposition/Response to Motion

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 6 (T.T.A.B. Feb. 4, 2022)
On July 8, 2021, Applicant, VFB filed an action in the Central District of California against Opposers (“the Complaint”), alleging infringement of VFB’s VAMPIRE trademark, U.S.
After the institution of the lawsuit, Opposers filed the instant Opposition against VFB’s Application for VAMPIRE on the basis that the mark is merely descriptive of the applied-for goods.
If the proceedings involve the same mark or the opposed application, in determining the appropriateness of the suspension, the Board will review the operative pleadings in the civil action to determine if the issues before the court may have some bearing on the Board’s decision in the opposition.
The decision of the Court in the lawsuit – whether Opposers’ use of “sour vampire bats” is fair, has no bearing on the question of descriptiveness of Applicant’s Application.
WHEREFORE, by their undersigned attorneys, Opposers respectfully request that the Board issue an Order denying Applicant’s Motion to Suspend, and any other relief that may be appropriate.
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No. 5 - Answer

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 5 (T.T.A.B. Jan. 31, 2022)
Applicant is without sufficient information to form an opinion as to why each registration was issued or what happened and on that basis denies the remainder of paragraph 4.
Applicant is without information and belief as to what a vampire bat looks like and therefore denies any implication as to the remainder of the averments in Paragraph
Applicant has asserted rights in the mark “VAMPIRE” for chocolate against Opposer’s use of the word “vampire” as a trademark and not as a descriptive use.
And upon information and belief, Opposer has been doing so, in bad faith, having previous knowledge of Applicant’s Vampire trademark for chocolate.
Opposes are equitably estopped from presenting the arguments they are making as it is they that filed two trademark applications claiming the word “vampire” was not descriptive and that they were using it as a mark.
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No. 4 - Vampire Family Brands, LLC Motion to Suspend Pending Disposition Civil Action

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 4 (T.T.A.B. Jan. 17, 2022)
None of Defendants’ activities complained of in this complaint have been authorized by Plaintiff, and such unauthorized use by Defendants of Plaintiff’s 10 trademarks and/or trade names in interstate commerce, commerce substantially ...
Defendants admit that none of Defendants’ activities complained of in this Complaint have been authorized by Plaintiff.
Defendants admit that none of Defendants’ activities complained of in this Complaint have been authorized by Plaintiff.
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No. 1 - Filed and Fee

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 1 (T.T.A.B. Dec. 22, 2021)
If Applicant is permitted to register Applicant’s Mark, Opposers would be damaged because the registration would be used in an attempt to impair Opposers’ rights to use the descriptive term “vampire” in connection with related goods, including candies.
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No. 8 - Suspend Pending Disposition of Civil Action

Document RiGO Trading S.A, Haribo of America, Inc. v. Vampire Family Brands, LLC, 91273602, No. 8 (T.T.A.B. Mar. 17, 2022)
In support of its motion to suspend, Applicant argues that the Civil Action may have a bearing on this proceeding, because it involves the same parties and because Opposers have pleaded a claim that Applicant’s involved mark is merely descriptive in this proceeding, and similarly raised descriptiveness as a defense in their answer to the complaint in the Civil Action.
Opposers therefore argue that the district court’s determination of “whether Opposers’ use of ‘sour vampire bats’ is fair, has no bearing on the question of descriptiveness of Applicant’s Application.” Id. (emphasis removed).
Following a careful review of the record, the Board finds that a decision by the district court could have a bearing on the issues in this proceeding.
In this proceeding, in support of their entitlement to a statutory cause of action and claim, Opposers plead descriptive use of “Sour Vampire Bats” as well as ownership of Registration Nos. 6098108 and 6253195.
Opposers allege that they will be harmed by registration of Applicant’s involved mark, because it will impair their ability to use the terms “vampire,” “vampire bat,” or “sour vampire bats” descriptively.
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