Trademark Trial and Appeal Board Electronic Filing System. 3935
`
`ESTTA Tracking number: ESTTA28016
`
`Filing d3‘533
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`03/] 1/2005
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91164190
`
`Plaintiff
`Clif Bar Inc.
`Clif Bar Inc.
`§ 1610 Fifth Street
`Berkeley, CA 94710
`
`iiiiiiiiiiiiiiiiiiiiiiiiiiiiii
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`’ THELEN REID & PRIEST LLP
`C°mSP°"de"°e 101 Second Street, Suite 1800
`Address
`San Francisco, CA 64105
`
`Submission
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`Motion to Suspend for Civil Action
`
`Ffler's Name
`
`E. Lynn Perry
`
`Filer's e—mail
`Signature
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`tradernark@the1enreid.corn, 1perry@thelenreid.corn
`/E. Lynn Perryl
`
`Attachments
`
`MOTION TO SUSPEND.PDF( 15 pages )
`
`

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`TRADEMARK
`
`Attorney Docket No. 03464085
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`IN THE UNITED STATES PATENT AND ‘TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.: 91164190
`
`)
`>
`
`) )
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`Serial No. 76/531,830
`) Mark: MOJO NUTS
`)
`) MOTION TO SUSPEND OPPOSITION
`)
`FOR CIVIL ACTION
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`CLIF BAR, INC.
`
`V.
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`MOJO NUTS, LLC,
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`3
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`Opposer,
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`) ) )
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`Respondent.
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`BOX TTAB NO FEE
`I Commissioner for Trademarks
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`

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`
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`The identified civil action has a bearing on this Opposition and involves issues in
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`common with those in this proceeding.
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`Respectfully submitted,
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`THELEN REID & PRIEST In-‘LP
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`I
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`By:
`E. Lynn Pe
`Attorneys for Respondent
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`
`
`lg:
`i E\/
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`
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`Dated: March 10, 2085
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`THELEN REID & PRIEST LLP
`101 Second Street, Suite 1800
`San Francisco, CA 94105
`l Telephone:
`(415) 369-7505
`1 Facsimile: (415) 36943930
`} Attorney Docket No. 034640-85
`SF #932952 «I -
`
`
`
`

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`P1aintiffCflI*‘ BARINC. alieges as follows:
`ATURE OF ACTION
`N
`armament injtmctive zalief against the foliowing acts
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`under California state law.
`Plaintiff CLIP BARNC. is a California corp
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`oration whose place ofbusiness is 1610
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`2.
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`F1fth Street, Berkaley, Cahfornia, 94710
`3
`Plaintiff15 thelawfulowner ofthetraciemarlcM030BAR, whichis the subject of
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`

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`1' Federal Registration No. 2,687,196, issued February ll, 2003, filed December 12, 2000, and Federal
`2 Registration No. 2,697,701, issued March l8, 2003 (the "M030 BAR Mark“) filed May 17, 2002,
`3
`covering “ready to eat high energy nutrition bars for meal replacement” and “grain based ready to eat
`4
`energy food bars.” These registrations are in force and incontestable. By virtue of the filing date for
`5 . its earlier registration, the M030 BAR Mark has a priority date ofDecember 12, 2000. The M010
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`6 DBARMarkhasbeeninusesinceatleastApril2002. Plaintiffalsoownsthedomainname
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`7 ii www.1nojobar.corn, which was registered in 2002. That address points to www.clifrnojo.corn, also
`8
`owned by Plaintiff. Plaintiff operates a website at that Internet address. Plaintiff also uses the mark
`9 M030 to refer to its products and Piaintiiffs customers know Plaintiff’s product by the shorthand
`I0 M030.
`0
`4.
`I1
`Upon information and belief, Defendant M010 NUTS, INC., is a Colorado Limited
`12 Liability Company with an address at 517 Big Thompson Avenue P.O. Box 864, Estes Park, Coiorado
`13
`8051?. Defendant is in the business ofmanufacturing snack foods made from processed and
`14 { unprocessed nuts and processed edible seeds. Defendant also owns the domain name
`15 i www.mo3'onuts.eom, whichwas registered in 2003 Defendant operates a website at that Internet
`16 i address. Defendant’s M050 NUTS-branded products are offered and delivered to customers via the
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`17
`18
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`Internet and through other means-
`5.
`Long after Plaintiff commenced use ofthe M050 BAR Mark and filed its applications
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`20
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`21
`22
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`confusingly similar mark MOJO NUTS (the “Imitation Mark”), and registered and began use of the
`Internet domain name www.n1ojonuts.com (the “Domain Name”). Defendant uses the Imitation Mark
`and the Domain Name in connection with snack food products which are very closely related to the
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`19 whichresultedintheincontestabieregistrationsnotedabove,Defendantadoptedandbeganusingthe
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`products with which Plaintiffuses its MOJO BAR Mark.
`23
`6.
`Unless Defendant is enjoined fiom continuing to use the Imitation Mark and the
`24
`25 I Bomain Name to promote Defendant’s products, the M030 BAR Mark will continue to be infringed
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`26 ii and will become further diluted, resulting in irreparable injury to Plaintiff, confusion of consumers,
`27
`and harmto thepublic, therebydestroying the distinctive quality ofthe mark thatPlaintiffhas spent
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`28
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`"FH£tEr~: Ron
`:3: PREEST up
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`considerable time and resources developing and promoting.
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`COMPLAENT
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`~2-
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`JURISDICTION AND VENUE
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`7.
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`This is a civil action arising under the Lanham Act, 15 U.S.C. § §l1t4, l l25(a) er seq.
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`and related claims under California statutory and the common law. This Court has subject matter
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`u
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`1 2
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`3
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`jurisdiction pursuant to 15 U,S.C. § 1121 and 28 U.S.C. §§ 1331, 1338 and 1367.
`4
`8.
`‘ Personai jurisdiction over Defendant is vested in this Court in that, on infomsation and
`5
`belief, Defendant transects business in California and within this District. On information and belief,
`6
`7 Defendant owns and operates an interactive website on the World Wide Web, described below, which
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`8
`9
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`10
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`11
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`12
`13
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`displays and uses the Imitation Mark and allows interested parties to order Defendant’s products on-
`line. Us information and beiief, Defendant is doing business in California and has solicited and made
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`sales to customers in this State and in this Judicial District through this interactive website and by
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`other means. Further, Defendanfs acts within or directed toward Caiifornia have caused Plaintiff the
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`injuries alleged herein in this District.
`9.
`Venue is proper in the United States District Court for the Northern District of
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`14 California pursuant to 28 U.S.C. §§ 1391(1)) and (c) as the ciairns arise in this district, and Defendant,
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`15
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`16
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`17
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`a Eimited liability company, is subject to personal jurisdiction in this district.
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`PLAINTIFFS VALUABLE TRADEMARK RIGHTS
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`10.
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`Plaintiffproduces and sells food bars, energy geis and related products under the
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`following brands, among others: CLIP BAR, LUNA, SHOT, and MOIO BAR and MOJO. M030 is
`an a11~natura1 snacl-:~io-a—bar, with a family ofdeiiciousiy balanced saity/sweet flavors traditionally
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`found in trail mix or snack mix. It isncornprised priniaiily ofnuts and the products are savory (like
`salted nut products) rather than sweet. In fact, according to Plaintiff’3 website description for this
`product, “[N}uts give M030 Bar its distinctive character [and] its family of flavors Iean toward the
`less sweet side of things.” These products are offered at chain stores iike Wild Oats and RBI, in
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`24 5 natural and specialty food stores, at specialty outdoor retailers, through on-line retailers, and oniine
`I
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`25
`26
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`27
`28
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`THELEN Roe
`& Pines": Lt?
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`through Piaintiff’ s website.
`11.
`Plaintiff is the exciusive owner of each ofthe marks and registrations referenced above
`
`through continuous, substantiai and exclusive use of these marks in commerce in the United States for
`several years. Attached hereto as Exhibit A are true and correct copies of the federal trademark
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`COMPLAINT
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`-3—
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`

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`registrations issued for these trademarks, which are in full force and effect and incontestable.
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`12.
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`Plaintiff has invested considerable efibrt and monies advertising products sold under
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`the MOIO BAR Mark. As a result of this continuous and substantial effort and expense, and due to
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`the quality of its products, Plaintiff’s MOJO products enjoys a prominent market position in Caiifornia
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`and elsewhere. Through this continuous, substantially exclusive and extensive use and promotion of
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`the MOJO BAR Mark, the MOJO BAR Mark has garnered substantial name re-cogiition and good
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`will among consumers of snack products.
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`DEFENDANT’S WRONGFUL ACTS
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`13.
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`Defendant is using the Imitation Mark and the Domain Name in direct competition
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`with Plaintiff. On information and belief, Defendant operates a website on the World Wide Web at
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`the Internet address -‘imojonuts.co1n> where its products are advertised, marketed, offered and sold.
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`}3efendant’s website is interactive and allows interested parties, including consumers in California, to
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`order Defencianfs products.
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`14.
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`The Imitation Mark and the Domain Name are nearly identical in appearance, sotmd
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`and commercial impression to the MOJO BAR Mark, in that both marks begin with the word M030,
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`and the word M030 is the distinctive (and therefore “dominant”) portion of both parties’ marks,
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`Defendant uses the Imitation Mark in connection with products that are nearly identical and very
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`closely related to Plaintiff’s products. To the extent any products offered under Defendanfs Imitation
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`Mark are not yet offered directly by Plaintiff, they are within or closely related to the natural zone of
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`‘°°°.‘~JO’~Uu.I>wm
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`11
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`£2
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`13
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`14
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`16
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`I7
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`18
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`!
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`expansion of what Plaintiff may offer in the future under the M010 BAR Mark.
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`15.
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`On information and belief, Plaintiff’ s products are sold in the same and related
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`channels of trade as those in which Defendant offers and sells its products. Because of the similarity
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`of the products of the parties, the parties are highly likely to deal with many of the same customers.
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`16.
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`Out of an entire universe of different marks and domain names, Defendant chose the
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`mark M050 NUTS and the Domain Name <tnojonuts.com>, which are neatly identical to the M030
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`BAR Mark. The intended and likely result will be and is the confusion of consumers.
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`I7.
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`I)efendant’s activities in using the Imitation Mark and in registering, maintaining and
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`using the Domain Name are likely to cause confusion, mistake or deception ofconsumers and are
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`COMPLAINT
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`-4-
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`21
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`2-4
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`25
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`26
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`i 1
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`‘watts Ran
`£4 Panssr t.LP
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`likely to lead the public to the erroneous conclusion that the website at that address and the products
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`sold by Defendant originate With, and/or are sponsored by, andfor authorized by Plaintiff, to the
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`damage and harrn of Plaintiff and the public.
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`l8.
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`Upon information and belief, Defendant has deliberately, knowingly and willfully
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`advertised, offered for sale, sold and distributed its products under the Imitation Mark, the Domain
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`i
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`2 3
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`4
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`5
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`6 Name, and confusingly similar variations of the M030 BAR Mark, in interstate commerce, in the
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`7
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`78
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`9
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`State of California, and in this judicial district.
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`19.
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`Upon information and belief, the M010 BAR Marl: had already gained strong public
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`recognition and good will among consumers of snack food products in the United States, and
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`10 California specifically, before Defendants first use ofDefendanfs Imitation Mark and its registration
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`11
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`12
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`I3
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`14
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`15
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`of the Domain Name.
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`20.
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`Plaintiflf has not consented to Defendant’s use of Defendanfs Imitation Mark, nor
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`registration ofthe Domain Name, nor has Flaintiff sponsored, endorsed or approved the products
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`offered and promoted by Defendant.
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`21.
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`Plaintiff has notified Defendant and demanded that Defendant cease and desist all use
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`of the Imitation Mark in connection with the advertising, marketing and sale of its products.
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`17 Defendant has refused Plaintiffs demands, thus necessitating this action.
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`18
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`19
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`22.
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`Defendant’s unauthorized use of the Imitation Mark and the Domain Name is likely to
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`cause confusion, to cause mistake, and to deceive an appreciable number of reasonably prudent
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`20 ii consumers into falsely believing that Defendant's products are provided, sponsored or approved by
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`Plaintiff or that there is a connection between Plaintiffand Defendant, when there is not.
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`l
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`25
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`26
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`metro Roe
`& PRIEST Lt?
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`23.
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`Defendanfs unauthorized use of the Imitation Mark and the Domain Name is likely to
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`dilute the distinctive quality of the M010 BAR Mark and to tamisli and otherwise injure the
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`reputation of Plaintiff.
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`24.
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`Plaintiff has no control over the quality ofDefendar1ts' products, and Plaintiffs
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`reputation and good will are likely to be irreparably injured by such uncontrolled use of such a
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`confusingly similar variation of its MOJO BAR Mark.
`25.
`As a direct and proximate result ofDefendant’s conduct set forth above, Plaintiffhas
`COMPLAIN?
`«Sm
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`

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`tn
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`I
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`suffered economic harm. It is difficult or impossibée to ascertain the amount of compensation that
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`2
`could afford Plaintiff adequate reiief for the acts of Defendant, present and threatened. No amount of
`3 money damages can adequately compensate Haintiff if it loses the ability to control the use of the
`4 MOJO BAR Mark, or suffers damage to its reputation and associated good will through the
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`5 misleading and unauthorized use of its trademark.
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`6 i
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`7
`8
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`26.
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`Defendanfsconductiscontinuingandwillcontinue,constitutinganongoingthreatto
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`Plaintiff and the public. Unless Defendant is restrained and enjoined from engaging in the infiinging
`conduct described herein, Piaintiffwilt suffer irreparable injury. Without injunctive relief, Maintiff
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`9
`10
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`has no means by which to control the continuing injury to its reputation and good will or ofthe
`continuing diiotion of its trademark. Plaintiffs remedy at taw is therefore not adequate to compensate
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`1} [
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`it for said harm and damage.
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`1'3
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`13
`14 .
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`FIRST CLAIM FOR RELIEF
`INFRINGEMENT OF REGISTERED TRADEMARK
`Q5 U.S.C. § 1114}
`Plaintiff incorporates by reference the allegations in paragraphs 1 through 26 above, as
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`27.
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`15
`16
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`if set forth in foil herein.
`28.
`Defendant's activities complained ofherein constitute use in commerce of a
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`sale, offering for sale, distzihution or advertising ofproducts, on or in connection with which such use
`to cause mistake or to deceive, in viotation of Section 32 of the Lanharn
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`is likely to cause confusion or
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`Act, 15 U.S.C. § H14.
`29.
`Plaintiffis entitied to injunctive reliefprohibiting Defendantfrom using the imitation
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`22 Mark,
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`the Domain Name, and any other name, trademark, service mark or domain name which is
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`18
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`19
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`20
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`17
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`reproduction,counterfeit,copyorcoiorahleimitationofaregisteredtrademark,inconnectionwiththe
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`Iikeiy to be confused with the M010 BAR Mark.
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`30.
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`Defendant acted and is acting with fuli knowledge of Plaintiffs rights and with the
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`intention to usurp such rights.
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`3}.
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`This is an exceptional case under 15 U.S.C. §l‘t 17.
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`23
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`THELEN Rae
`& P122551 up
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`i
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`SECONI) CLAIM FOR RELIEF
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`COM?i,AINT
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`-6-
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`

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`UNFAIR COMPETITION UNDER FEDERAL LAW
`115 U.S._C. § 1I25{a}_)
`Piaintiffincorporates by reference the allegations in paragraphs 1 through 31, above, as
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`32.
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`if set forth in fut} herein.
`33.
`The activities ‘ofDefendant complained ofherein constitute a false designation of
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`‘ origin and false description or representation as to the source ofDefendants products, and unfair
`competition, in violation ofthe Lanham Act, 15 U.S.C. §1125{a), to the damage ofPlaintiff and the
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`public.
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`34.
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`Plaintiffis entitled to injunctive reliefprohibiting Defendant from using the limitation
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`Mark,
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`the Domain Name, and any other name, trademark, service mark or domain name containing
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`MC-‘J0 or which is likely to be confused with the M010 BAR Mark.
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`35.
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`Defendant acted and is acting with full knowledge of Piaintiffs rights and with the
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`2 3 4 5
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`6
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`7 8 9
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`intention to usurp such rights.
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`36.
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`This is an exceptional case under 15 U.S.C. §111’I.
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`THIRD CLAIM FOR RELIEF
`UNFAIR COMI’ETi'I‘ION
`AND FALSE ADVERTISING
`UNDER CALIFORNIA LAW
`(Cal. B&P Code §§I 7209, 17500}
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`37.
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`Plaintiff incorporates by reference the allegations in paragraphs 1 through 36 above, as
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`if set forth in full herein.
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`38.
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`The above acts by Defendant constitute unfair competition and false advertising in _
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`violation of Cal. Bus. & Prof. Code §§l720G and 17500.
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`39.
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`Plaintiffis entitled to injunctive relief prohibiting Defendant from using Defendant’-5
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`Mark and the Domain Name, and any other name, trademark, or domain name containing MOJO or
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`which is likely to be confused with the M010 BAR Mark, or otherwise unfairly competing with
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`?iaiiitiff.
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`l
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`‘
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`28
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`T:-it-:LEN Rain
`8; PRIEST LL?
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`FOURTH CLAIM FOR RELIEF
`INJURY T0 BUSINESS REPUTATION
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`UNDER CALIFORNIA LAW
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`ANDTRADEMARKmLU'r;xoN
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`COMPLAINT
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`

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`"~000--iO\'..h-Eh-'c:~J!~d1
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`19
`1 1
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`A
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`E
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`40.
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`Plaintiffincorporates by reference the allegations in paragraphs 1 through 39 above, as
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`if set forth in full herein.
`41.
`The activities ofDefe-ndant complained ofhereln are likely to injure Plaintiffs ‘ousiness
`reputation andfor to dilute the distinctive quality ofPlaintiffs MOJO BAR Mark in violation of Cal.
`Bus. & Prof. Code § 14330, to the injury of Plaintiff and the public.
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`jCai.Bus.&Prof.Code§14330[
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`FIFTH CLAIM FOR RELIEF
`UNFAIR COMPETITIOK UNBER CALIFORNIA COMMON LAW
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`42.
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`Plaintiff incorporates by reference the allegations in paragraphs 1 through 41 above, as
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`if set forth in full herein.
`43.
`The above acts by Defendant constitute unfair competition under California common
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`12
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`law.
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`l’RAYER FOR RELIEF
`13
`WHEREFORE, Plaintiffprays forjudgment against Efiefendant as follows:
`14
`1.
`That Defendant, its ofice-rs, affiliate companies, agents, servants, employees,
`15
`successors, licensees, and assigns, and all others in concert and privity with them, be enjoined during
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`the pendency ofthis action, and permanently thereafter, fiom using in any manner, in connection with
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`shipment and transport products and related goods and services, the trademark and domain name
`is
`19 M050, M030 NUTS, or any other name, trademark, service mark or domain name which is likely to
`20
`be confused with the M030 BAR Mark, or which is likely to create the erroneous impression that
`2} Defendant or its products and services originate with Plaintiff, or are endorsed by, or are sponsored by
`22
`Plaintiff, or that Defendant is in any way connected with Plaintiff, or that is likely to dilute the
`23
`distinctive quality of the M030 BAR Mark, when used individually or together with other marks or
`2d
`elements;
`That Defendant, its ofiicers, affiliate companies, agents, servants, employees,
`25
`2.
`26
`successors, licensees, and assigns, and all others in concert and privity with them, be enjoined during
`2?
`the pendency ofthis action, and permanently thereafter, from comrnitting any other acts calculated to
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`28
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`THELEN Rec
`& PRiE$T Lt?
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`COMPLAINE‘
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`«S-
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`cause purchasers to believe that any products or services ofDefendant are sponsored by, approved by,
`connected with, or offered or sold by Plaintiff, or under license by Plaintiff;
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`3.
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`That Defendant be ordered to recali and destroy all written and oiectronio material,
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`including but not limited to labels, packaging, advertising and promotional material, and rotated items
`which use the Imitation Mark, the Domain Name or any other name, domain name, trademark, or
`service mark which is likely to be confused with, or that is likely to dilute the distinctive quaiity ofthe
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`M010 BAR Mark;
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`4.
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`That Defendant be ordered to take down the website at <www.mojonuts.com>
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`immediately and to transfer ownership of that Domain Name to idaintiff;
`5.
`That Defendant, within thirty (30) days afier having been served with judgment, with
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`notice of entry upon it, be required to tile with this Court and to serve upon Plaintiff, a written report,
`under oath, setting forth in detail, the manner in which Defendant has complied with Paragraphs 1
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`through 4, supra; and
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`6.
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`Such further relief as the Court deems just and proper.
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`Respectfully submitted,
`
`THELEN RE
`
`§’2i}RlE?.ST LLP
`
`
`
`E. Lynn Perry
`Attorneys for Plaintiff
`CLIP‘ BAR INC.
`£01 Second Street, 18th Floor
`San Francisco, CA 94i05
`415/36947505 (tel.)
`415/369-8930 (fax)
`
`Dated:
`
`
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`z ‘ Z I 2&9; By
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`Attorney Docket No. 3464985
`5}‘ #926154 vl
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`~
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`THELEN Roe
`as Pairs: LLP
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`COMPLAINT
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`a
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`....._.........,....*
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`‘~lO‘\§.h-F3-Lair.)
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`DEMAND FOR JURY TRIAL
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`Pursuant to Fed. R. Civ. 1?‘. 38(1)), P1aintiffCI'1fBar, Inc. hereby demands a trial of this
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`dispute by jury.
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`Respectfully submitted,
`
`THEL
`
`,_ RIEST LLP
`
`
`
`E. Lynn Perry
`Attorneys for PIaintiéL//
`CLE BAR, INC.
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`
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`COMPLAINT
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`-E0-
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`SF #926i 5:1 V1
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`!E
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`EE
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`3 i 1 i
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`19
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`4hi
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`IN) Us
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`tn?
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`INJIN)OONJQN
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`TB-|Ei.EN REID
`3: Pmesr L%.P
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`

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`EXHIBIT A
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`

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`Int. 03.: 5 and 30
`
`Prior U.S. Cls.: 6, 18, 44, 46, 51, and 52
`
`United States Patent and Trademark Office
`
`Reg. No. 2,687,196
`Registered Feb. ll, 2€H}3
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`MOJ0 BAR
`
`CLIF BAR INC. (CALIFGRNEA CORPORATION)
`£6“? FIFTH STREET‘
`BERKELEY. CA 947i!)
`
`FOR: READY TO BN1‘ HIGH-ENERGY NUTRI-
`TION BARS FOR MEAL REPLACEMENT. IN CLASS
`5 (US. CLS. 6, 18, #4, 46, 51 AND 52).
`
`FIRST USE 4—D-ZEOZ; IN COMMERCE 4'0-2002.
`
`FOR: GRAIN BASED READY TO EAT ENERGY
`FOOD BARS, iN CLASS 30 (U.S. CL 46).
`
`F3 RST USE 4-0»-2902; IN COMMERCE 4-0-2932.
`
`NO CLAIM IS MADE TO THE EXCLUSIVE
`RIGHT TO USE “BAR”. APART FROM THE. MARK
`AS SHOWN.
`
`SN ?fi~i?9,375, FILED E2~!2-2060.
`
`SAMUEL E. SHARPER JR.. EXAMENBVG ATFOR»
`NEY
`
`
`
`_.W9<-.‘4uwe-'4rr.»\u-’
`
`

`
`Int. CL: 39
`
`Prior U.S. (1:46
`Reg. No. 2,697,701
`.
`'
`United States Patent and Trademark Office
`Registered Mar. 18,2003
`
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`.
`
`
`
`CLIP BAR INC. (CALIFORNIA CORPORATION)
`lfilfl FIFTH STREET
`BERKELEY. CA 94710
`
`FOR: BAKED PRODUCFS, NAM ELY, GRAEN
`BASED READY TO EAT ENERGY FOOD BARS, 1N
`CLASS 30 (us. CL. 45).
`
`FIRST‘ use 4—o.2eo2; !I*~f commence 441-2002.
`
`N0 CLAIM IS MADE TO THE EXCLUSIVE
`RIGHT TO USE “BAR” , APART FROM THE MARK
`AS SHOWN.
`
`SER. NO. 76-409,599, FILED 5—l?—2002.
`
`SAMUEL E. SHARPER 1:1,, EXAMHNZENG ATTOR-
`NEY