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`mummy 7
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`07-26-2004
`U-S. Patent & TMOR:/TM Mail Rcpt Dt.
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`#74
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`TTAB
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Avon Products, Inc.,
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`Opposition No. 91160985
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`Opposer,
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`v.
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`Dean L. Rhoades,
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`Applicant.
`
`In the matter of Application
`Serial No.: 76/490,033
`Mark:
`IF IT IS NOT
`
`DERMANEW, IT IS NOT
`
`PERSONAL
`MICRODERMABRASION
`
`Int. Class: 10
`
`Our Ref. 64637-1036/0014
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`on December 23, 2003
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`Published in the Ofiicial Gazette
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`APPLICANT'S ANSWER TO NOTICE OF OPPOSITION
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`Applicant Dean L. Rhoades, an individual having a business address at 9107
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`Wilshire Blvd., Suite 400, Beverly Hills, California 90210 ("Applicant"), the owner of the
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`above—referenced Application Serial No. 76/490,033, answers the Notice of Opposition of
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`Avon Products, Inc. ("Opposer"), as follows:
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`1.
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`Applicant is without knowledge or information sufficient to form a belief
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`as to the truth of the allegations contained in Paragraph 1 of the Notice of Opposition and
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`therefore, on that basis, denies each and every allegation therein.
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`2.
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`Applicant is without knowledge or information sufficient to form a belief
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`as to the truth of the allegations contained in Paragraph 2 of the Notice of Opposition and
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`therefore, on that basis, denies each and every allegation therein.
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`3.
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`Applicant is without knowledge or information sufficient to form a
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`belief as to the truth of the allegations contained in Paragraph 3 of the Notice of Opposition
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`and therefore, on that basis, denies each and every allegation therein.
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`LA 3233276 vl
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`4.
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`Applicant admits that Registration Nos. 1,982,608 and 2,718,121 in all
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`respects speak for themselves. Except as expressly admitted herein, Applicant is without
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`knowledge or information sufficient to form a belief as to the truth of the allegations contained
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`in Paragraph 4 of the Notice of Opposition and therefore, on that basis, denies each and every
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`allegation therein.
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`5.
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`Applicant admits that on February 20, 2003, Applicant filed an
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`application to register the mark IF IT IS NOT DERMANEW, IT IS NOT PERSONAL
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`MICRODERMABRASION ("Applicant's Mark"), which application was assigned Serial No.
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`76/490,033, is the subject of the present opposition, and in all respects speaks for itself.
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`Applicant admits that the goods identified in Application Serial No. 76/490,033 as published
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`in the Ofiicial Gazette on December 23, 2003 are "skin care systems comprised of a handheld
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`electric or battery operated massage and toning apparatus as well as skin stimulator attachments,
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`foam applicator attachments, skin toner, skin creme, skin moisturizer and skin cleanser sold as a
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`unit" in International Class 10.
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`6.
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`Applicant denies each and every allegation of Paragraph 6 of the Notice
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`of Opposition. Furthermore, Applicant is without knowledge or information sufficient to form
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`a belief as to the truth of the allegation in Paragraph 6 of the Notice of Opposition that
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`Opposer's mark ANEW is "previously used", i.e. has been used prior to the date of first use
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`of Applicant's Mark, and therefore, on that basis, denies this allegation.
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`of Opposition.
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`7.
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`8.
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`Applicant denies each and every allegation in Paragraph 7 of the Notice
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`Applicant denies each and every allegation in Paragraph 8 of the Notice
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`of Opposition. Furthermore, Applicant is without knowledge or information sufficient to form
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`a belief as to the truth of the allegation in Paragraph 8 of the Notice of Opposition that
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`Opposer has "prior and superior rights", and therefore, on that basis, denies this allegation.
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`9.
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`Applicant denies each and every allegation in Paragraph 9 of the Notice
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`of Opposition.
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`10.
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`Further, if any allegations should remain unanswered, Applicant denies
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`each and every unanswered allegation in the Notice of Opposition.
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`LA 3233276 vl
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`AFFIRMATIVE DEFENSES
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`In addition to the foregoing, and as separate and distinct affirmative defenses to
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`Opposer's claims, Applicant alleges as follows:
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`FIRST AFFIRMATIVE DEFENSE
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`11.
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`Opposer's Notice of Opposition is barred pursuant to the doctrine of
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`SECOND AFFIRMATIVE DEFENSE
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`12.
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`Opposer's Notice of Opposition is barred pursuant to the doctrine of
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`THIRD AFFIRMATIVE DEFENSE
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`13.
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`Opposer's Notice of Opposition is barred pursuant to the doctrine of
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`estoppel.
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`waiver.
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`acquiescence.
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`///
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`///
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`///
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`
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`FOURTH AFFIRMATIVE DEFENSE
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`14.
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`Opposer has failed to state a claim for which relief may be granted
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`pursuant to Federal Rule of Civil Procedure 12(b)(6).
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`WHEREFORE, Applicant requests that Opposer's opposition be dismissed.
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`Respectfully submitted,
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`Dated: July 23, 2004
`
`B :
`
`A
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`Christine L. Lofgren
`Attorneys for Applicant
`Jeffer, Mangels, Butler & Marmaro LLP
`1900 Avenue of the Stars, 7th Floor
`
`Los Angeles, California 90067
`Telephone:
`(310) 203-8080
`Facsimile:
`(310 203-0567
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`LA 3233276 v1
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`7‘
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`CERTIFICATE OF MAILING
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`I hereby certify that on July 23, 2004, the original of the foregoing document is
`being deposited with the United States Postal Service, first class mail, postage prepaid,
`addressed to the Commissioner for Trademarks, 2900 Crystal Drive, Arlington, Virginia
`22202-3514.
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 23, 2004, a copy of the foregoing document is being
`deposited with the U.S. Postal Service, first class mail, postage prepaid, addressed to William
`R. Golden, Jr. and Michelle M. Graham of Kelley Drye & Warren LLP, 101 Park Avenue,
`New York, New York 10178, attorneys for Opposer.
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`Etlin errio
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`LA 3233276 v1
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