Trademark Trial and Appeal Board Electronic Filing System. 3935
`
`ESTTA Tracking number: ESTTA44378
`
`Filing date3
`
`09/07/2005
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91166174
`
`Defendant
`TWT Entreprises, LLC
`TWT Entreprises, LLC
`§ 9260 Hillside Road
`Alta Lorna, CA 91737
`
`Debra B. Gervais
`i Law Office of Debra B. Gervais
`C
`orrespondence l
`3 302 West South Avenue
`Address
`g Redlands, CA 92373
`
`Submission
`Ffler's Name
`Filer's e—mail
`Signature
`
`Answer
`Debra B. Gervais
`dgerVais1@Verizon.net
`/Debra B. Gervaisf
`
`Attachments
`
`TWTAnsWer.pdf ( 7 pages )
`
`
`
`ESTTA Tracking number: ESTTA44378
`
`Filing date3
`
`09/07/2005
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91166174
`
`Defendant
`TWT Entreprises, LLC
`TWT Entreprises, LLC
`§ 9260 Hillside Road
`Alta Lorna, CA 91737
`
`Debra B. Gervais
`i Law Office of Debra B. Gervais
`C
`orrespondence l
`3 302 West South Avenue
`Address
`g Redlands, CA 92373
`
`Submission
`Ffler's Name
`Filer's e—mail
`Signature
`
`Answer
`Debra B. Gervais
`dgerVais1@Verizon.net
`/Debra B. Gervaisf
`
`Attachments
`
`TWTAnsWer.pdf ( 7 pages )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CONSTELLATION BRANDS, INC.
`
`Opposition No. 91166174
`
`Opposer,
`
`Application Serial No. 7841 1813
`
`V.
`
`Mark: THE WINE TAILOR
`
`TWT ENTERPRISES, LLC
`
`Filed: May 1, 2004
`Published for Opposition: June 7, 2005
`
`Applicant
`
`APPLICANT’S ANSWER TO NOTICE
`OF OPPOSITION
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`CERTIFICATE OF FILING
`
`I hereby certify that this document entitled Applicant’s Answer to Notice of Opposition is being
`electronically filed with the Assistant Commissioner for Trademarks on this 7th day of September, 2005.
`By:
`/Debra B. GerVais/
`Attorney for Applicant/Defendant TWT Enterprises, LLC
`Date: September 7, 2005
`
`TO:
`
`Assistant Commissioner for Trademarks
`
`2900 Crystal DriVe
`Arlington, Virginia 22202-3514
`
`Applicant, TWT Enterprises, LLC (“Applicant”), for its answer to the Notice of
`
`Opposition filed by Constellations Brands, Inc. (“Opposer”), against application for
`
`registration of Applicant’s mark “THE WINE TAILOR,” Application Serial Number
`
`78411813, filed May 1, 2004, and published for opposition in the Official Gazette on
`
`June 7, 2005, pleads and avers as follows:
`
`ANSWER
`
`1.
`
`Answering paragraph 1 of the Notice of Opposition, Applicant does not
`
`have sufficient knowledge or information to form a belief as to the allegations contained
`
`therein and accordingly denies the allegations.
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-1-
`
`
`
`2.
`
`Answering paragraph 2 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein, and specifically denies, on
`
`information and belief, that the Opposer owns any registered marks in International Class
`
`40, for any services whatsoever, including but not limited to those services described as
`
`“custom blending of wines for others” one of the two classes under which Applicant
`
`seeks registration of its mark. Applicant specifically denies, on information and belief,
`
`that any of Opposer’s marks identify Opposer with any goods and services substantially
`
`identical to or generally related to Applicant’s goods and services. As to the balance of
`
`the allegations in paragraph 2, Applicant does not have sufficient knowledge or
`
`information to form a belief as to the allegations contained therein and accordingly denies
`
`the allegations.
`
`3.
`
`Answering paragraph 3 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein. As a basis for this denial, Applicant
`
`herein incorporates its answer to paragraph 2, above.
`
`4.
`
`Answering paragraph 4 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein. As a basis for this denial, Applicant
`
`herein incorporates its answer to paragraph 2, above.
`
`5.
`
`Answering paragraph 5 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein. As a basis for this denial, Applicant
`
`herein incorporates its answer to paragraph 2, above.
`
`6.
`
`Answering paragraph 6 of the Notice of Opposition, Applicant does not
`
`have sufficient knowledge or information to form a belief as to the allegations contained
`
`therein and accordingly denies the allegations.
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-2-
`
`
`
`7.
`
`Answering paragraph 7 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein. As a basis for this denial, Applicant
`
`herein incorporates its answer to paragraph 2, above.
`
`8.
`
`Answering paragraph 8 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein, and specifically denies that its goods
`
`and services will be distributed and sold through the same channels of trade as Opposer
`
`in that Applicant’s goods and services are directed to individual consumers seeking to
`
`purchase custom-blended and/or custom-labeled wines, or seeking to custom-blend their
`
`own wines. On information and belief, Applicant alleges that Opposer does not offer any
`
`goods or services to this channel of trade, nor does it offer goods or services of this type
`
`to the same ultimate consumer as Applicant. Applicant further alleges, on information
`
`and belief, that Opposer does not own any registered marks in International Class 40, for
`
`any services whatsoever, including but not limited to those services described as “custom
`
`blending of wines for others” one of the two classes under which Applicant seeks
`
`registration of its mark.
`
`9.
`
`Answering paragraph 9 of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein, and specifically denies that any of
`
`Opposer’s marks are remotely similar to the Applicant’s mark “THE WINE TAILOR.”
`
`On information and belief, Applicant alleges the following: none of Opposer’s marks
`
`begins with the words “THE WINE” (the first two words in Applicant’s mark) and thus
`
`none of Opposer’s marks sounds the same when spoken. None of Opposer’s marks
`
`contains the word “TAILOR” (a noun) or appears the same as Applicant’s mark when
`
`written. Nor would any of Opposer’s marks appear in proximity to Applicant’s mark in
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-3-
`
`
`
`an alphabetical listing. None of Opposer’s marks includes the phrase “The Wine Tailor,”
`
`“Wine Taylor” or even “Taylor Wine.” The only mark belonging to Opposer which
`
`contains both words “Taylor” and “Wine” is “Taylor New York Rhine Wine”
`
`(Registration 2648355), which is not evenly remotely similar, when written or spoken, to
`
`Applicant’s mark. Thus, Opposer does not even own a mark which, if transposed
`
`inadvertently, would be the same as or similar to Applicant’s mark. The spelling of
`
`“Tailor” in Applicant’s mark and “Taylor” in Opposer’s marks draws a clear distinction
`
`between Applicant’s mark and Opposer’s marks. “Tailor” as used by Applicant in
`
`connection with its goods and services is a term used to refer to the creation,
`
`customization and/or alteration of products, much as a tailor of clothing would do. The
`
`term “Tailor” as used by Applicant is intended to, and does, conjure up the image of a
`
`customization service in connection with custom-labeled wines and custom-blended
`
`wines. (Merriam-Webster Dictionary defines a tailor as “one whose occupation is
`
`making or altering outer garments.” Compact Oxford Dictionary defines tailor, in verb
`
`form, as to “make or adapt for a particular purpose or person.” Cambridge Advanced
`
`Learner’s Dictionary defines tailor, in adjectival form, as “specially made for a particular
`
`purpose,” and in verb form as “to make or prepare something following particular
`
`instructions.”) On information and belief, Applicant alleges that Opposer’s use of the
`
`word “Taylor” has no such connotations and refers, instead, to a surname.
`
`l0.
`
`Answering paragraph l0 of the Notice of Opposition, Applicant generally
`
`denies each and every allegations contained therein, and specifically denies on
`
`information and belief that any of the goods or services of Applicant are substantially or
`
`generally related to Opposer’s marks to any extent which would warrant a refusal to
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-4-
`
`
`
`register Applicant’s mark. As a basis for this denial, Applicant herein incorporates its
`
`answer to paragraph 9, above.
`
`ll.
`
`Answering paragraph ll of the Notice of Opposition, Applicant generally
`
`denies each and every allegation contained therein, and specifically denies that any
`
`mistake or deception as to the source of origin of the goods or services will arise and
`
`denies that there will be any injury or damage to Opposer or its goodwill. As a basis for
`
`this denial, Applicant herein incorporates its answer to paragraph 9, above.
`
`12.
`
`Answering paragraph 12 of the Notice of Opposition, Applicant denies
`
`each and every allegation contained therein. As a basis for this denial, Applicant herein
`
`incorporates its answer to paragraph 9, above.
`
`13.
`
`Answering paragraph 13 of the Notice of Opposition, Applicant does not
`
`have sufficient knowledge or information to form a belief as to the allegations contained
`
`therein and accordingly denies the allegations.
`
`AFFIRMATIVE DEFENSES
`
`14.
`
`As and for a separate affirmative defense, Applicant alleges that the
`
`Notice of Opposition fails to state a claim upon which relief may be granted.
`
`15.
`
`As and for a separate affirmative defense, Applicant alleges that there is
`
`no likelihood of confiasion, mistake or deception because, inter alia, Applicant’s mark
`
`and the pleaded marks of Opposer are not confilsingly similar. The Applicant’s mark and
`
`the Opposer’s marks do not even begin with the same word or combination of words, and
`
`do not sound or appear to be the same word or combination of words, as more fully set
`
`forth in paragraph 9, above.
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-5-
`
`
`
`16.
`
`As and for a separate affirmative defense, Applicant alleges that there is
`
`no likelihood of confiasion, mistake or deception because, inter alia, the Applicant’s
`
`goods and services are distinct and different from the services provided by Opposer, as
`
`more fially set forth in paragraph 9, above.
`
`17.
`
`As and for a separate affirmative defense, Applicant alleges that there is
`
`no likelihood of confusion, mistake or deception because, Applicant is informed and
`
`believes, and on that basis alleges, inter alia, that Opposer does not own any marks
`
`containing the word “Tailor.” Applicant alleges on information and belief that Opposer
`
`does not have any exclusive rights to the use of the term “Taylor,” in that there are
`
`currently over 300 marks listed with the United States Patent and Trademark Office as
`
`“live” which contain the word “Taylor.” Applicant alleges on information and belief that
`
`Opposer does not have any exclusive rights to the use of the term “Wine,” in that there
`
`are currently over 900 marks listed with the United States Patent and Trademark Office
`
`as “live” which contain the word “Wine.” In fact, Opposer has disclaimed, in its single
`
`referenced mark containing the word “wine,” the exclusive use of that term, among
`
`others.
`
`18.
`
`As and for a separate affirmative defense, Applicant alleges that Applicant
`
`is at least entitled to registration in International Class 40, for those services described as
`
`“custom blending of wines for others,” one of the two classes under which Applicant
`
`seeks registration of its mark, in that Opposer does not own any marks registered in Class
`
`40.
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-6-
`
`
`
`WHEREFORE, Applicant prays that the Notice of Opposition filed by
`
`Constellations Brands, Inc., be dismissed in its entirety, and that a registration issue to
`
`Applicant for its mark.
`
`A duplicate copy of the Applicant’s Answer to Notice of Opposition is filed
`
`herewith.
`
`DATED: September 7, 2005
`
`Respectfully submitted for Applicant/Defendant,
`TWT Enterprises, LLC
`
`/Debra B. GerVais/
`By:
`Debra B. Gervais
`
`The Law Office of Debra B. Gervais
`
`302 West South Avenue
`
`Redlands, California 92373
`
`Phone: (909)793-0609
`Facsimile: (909)363-8026
`E-mail: dgervaisl @Verizon.net
`Attorneys for Applicant/Defendant TWT
`Enterprises, LLC
`
`CERTICATE OF SERVICE
`
`I hereby certify that a true and complete copy of the foregoing Applicant’s Answer to Notice of
`Opposition in re Constellations Brands, Inc. V. TWT Enterprises, LLC, Opposition Number 91 166174, was
`sent by United States Postal Service, prepaid, by depositing the same with the United States Postal Service
`on this 7th day of September, 2005, addressed to the Attorney for Opposer as follows:
`
`Stephen L. Baker
`Baker & Rannells
`
`626 North Thompson Street
`Raritan, New Jersey 08869
`
`/Debra B. GerVais/
`By:
`Attorney for Applicant/Defendant TWT Enterprises, LLC
`Date: September 7, 2005
`
`APPLICANT’S ANSWER TO NOTICE OF OPPOSITION
`
`-7-
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