IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Trademark Application Serial No.: 77/524,998
`
`In re Application of
`FRESH PRODUCTS, INC.
`
`Serial No.: 77/524, 998
`
`Filed: July 17, 2008
`
`Mark: FRESH SCENTS
`
`€%/O;/£9/9/A
`
`Published in the Official Gazette
`
`of December 9, 2008, Volume 1337, No. 2,
`
`at Page TM 817.
`
`Opposition No.
`
`NOTICE OF OPPOSITION
`
`Opposer Greenleaf, Inc. (hereinafter also “Opposer”), a corporation organized
`
`under the laws of the State of South Carolina and having a place of business at 951 South
`
`Pine St., Suite 100, Spartanburg, SC 29302, believes that it will be damaged by
`
`registration of the above captioned application of Fresh Products, Inc. (hereinafter also
`
`“Applicant”), for registration of the alleged mark FRESH SCENTS, U.S. Application
`
`Serial No. 77/524,998, published in the Official Gazette of December 9, 2008, Volume
`
`1337, No. 2 at Page TM 817. Opposer, having sought extensions of time within which to
`
`file a Notice of Opposition until and including April 8, 2009, hereby files this Notice of
`
`Opposition and opposes the registration of U.S. Application Serial No. 77/524,998
`
`pursuant to § 13 ofthe Lanham Act (15 U.S.C. § 1063).
`
`

`
`As grounds in support of its Notice of Opposition, Opposer Greenleaf, Inc. asserts
`
`as follows:
`
`INTRODUCTION
`
`1.
`
`Applicant seeks to register the alleged mark “FRESH SCENTS” for
`
`“combined dispensers for both liquid soap and air fresheners” (hereinafter “Applicant’s
`
`subject goods”) in International Class 21.
`
`2.
`
`Upon information and belief, Applicant’s registration application, U.S.
`
`Trademark Application Serial No. 77/524,998 (hereinafier “Applicant’s subject ‘998
`
`application”), was filed on or about July 17, 2008.
`
`3.
`
`In Applicant’s subject ‘998 application, the Applicant has alleged a first
`
`use date and a first use in commerce date of November 2002.
`
`4.
`
`A copy of the specimen submitted to the United States Patent and
`
`Trademark Office to purportedly show Applicant’s use in commerce of “FRESH
`
`SCENTS” on Applicant’s subject goods is reproduced below:
`
`

`
`5.
`
`Opposer, based on its own use and/or use by a related company inuring to
`
`the benefit of Opposer, is and has for a time period beginning long prior to Applicant’s
`
`July 17, 2008 filing date of Applicant’s subject ‘998 application, and for a time period
`
`beginning long prior to the claim of first use and first use in commerce of November
`
`2002 as made by Applicant in conjunction with Applicant’s subject ‘998 application, and
`
`continuously since such beginning, engaged in manufacturing and/or commercializing of
`
`various products and services broadly related to the field of scented products and air
`
`fresheners.
`
`6.
`
`Use by or for the benefit of Opposer of various products and services
`
`broadly related to the field of scented products and air fresheners has variously included
`
`scented granulated matter, potpourri, sachets, aromatic sprays, candles, and various
`
`media for containment of air fresheners and scented products (hereinafter “Opposer’s
`
`subject goods”).
`
`7.
`
`In connection with various of its above—referenced commercial activities,
`
`Opposer has established a variety of rights in conjunction with use of the mark “FRESH
`
`SCENTS” as a trademark, service mark, and/or analogous usage in a trademark or service
`
`mark sense or alternatively in a trade name sense, or use analogous to trademark, service
`
`mark, or trade name usage, in commerce or interstate commerce, since long prior to the
`
`Applicant’s July 17, 2008 filing date of Applicant’s subject ‘998 application, and since
`
`long prior to the claim of first use and first use in commerce of November 2002 as made
`
`by Applicant in conjunction with Applicant’s subject ‘998 application.
`
`

`
`8.
`
`Opposer has developed valuable goodwill in its “FRESH SCENTS” marks
`
`and usages as variously referenced above, and by Virtue of the high quality of Opposer’s
`
`goods and services and the significant commercialization thereof, all of which have
`
`resulted in the Opposer having gained for its subj ect marks and usages a most valuable
`
`reputation and/or acquired distinctiveness for same.
`
`9.
`
`The general field of scented products and air fresheners includes various
`
`media for containment and/or dispersion of air fresheners.
`
`10.
`
`Use by or for the benefit of Opposer of various products and services
`
`broadly related to the field of scented products and air fresheners has variously included
`
`various media for containment and/or dispersion of air fresheners.
`
`11.
`
`Upon information and belief, Applicant’s subject goods fall into the
`
`general field of scented products and air fresheners.
`
`12.
`
`Upon information and belief, Applicant’s subject goods having included
`
`various media for containment and/or dispersion of air fresheners, which fall into the
`
`general field of scented products and air fresheners.
`
`13.
`
`Upon information and belief, Applicant’s subject goods and Opposer’s
`
`subject goods are related goods in the general field of scented products and air fresheners,
`
`including various media for containment and/or dispersion of air fresheners.
`
`14.
`
`Upon information and belief, Applicant is a present and/or a potential
`
`competitor of Opposer in the general field of scented products and air fresheners.
`
`

`
`NO ACQUIRED DISTINCTIVENESS
`UNDER 2 OF THE LANHAM ACT
`
`15.
`
`Opposer repeats and realleges the allegations contained in Paragraphs 1-14
`
`of this Notice of Opposition as if fully set forth herein.
`
`16.
`
`In Applicant’s subject ‘998 application, the Applicant has alleged it is
`
`entitled to registration of the designation “FRESH SCENTS” under § 2(1) of the Lanham
`
`Act (15 U.S.C. 1052(f)) because the designation “FRESH SCENTS” has allegedly
`
`acquired distinctiveness and has allegedly become distinctive of the Applicant’s subject
`
`goods through Applicant’s allegedly substantially exclusive and continuous use in
`
`commerce for at least five years before the date of the filing of the ‘998 application.
`
`17.
`
`Upon information and belief, Applicant has not engaged in substantially
`
`exclusive use of the designation “FRESH SCENTS” in the field of scented products and
`
`air fresheners, for at least five years before the date of the filing of the ‘998 application.
`
`18.
`
`For instance, Opposer, based on its own use and/or use by a related
`
`company inuring to the benefit of Opposer, has established a variety of rights in
`
`conjunction with use on various of Opposer’s subject goods of the mark “FRESH
`
`SCENTS” as a trademark, service mark, and/or analogous usage in a trademark or service
`
`mark sense or alternatively in a trade name sense, or use analogous to trademark, service
`
`mark, or trade name usage, in commerce or interstate commerce, since at least prior to
`
`five years before the date of the filing of the subject ‘998 application, and continuing
`
`from such time to the present.
`
`19.
`
`Consequently, Applicant has not shown and cannot legitimately show that
`
`Applicant’s designation FRESH SCENTS has acquired distinctiveness or become
`
`

`
`distinctive of the Applicant’s subject goods within the meaning of § 2(f) of the Lanham
`
`Act (15 U.S.C. § lO52(f)).
`
`20.
`
`Upon information and belief, because Applicant’s claim of acquired
`
`distinctiveness under § 2(f) of the Lanham Act (15 U.S.C. § l052(f)) is the ‘998
`
`application’s basis for registration of the alleged mark FRESH SCENTS on the Principal
`
`Register, Applicant’s subject ‘998 application should be refused registration on the
`
`grounds that Applicant has not established and cannot establish acquired distinctiveness
`
`pursuant to § 2(f) ofthe Lanham Act (15 U.S.C. § l052(f)).
`
`LIKELIHOOD OF CONFUSION
`
`§ 2(d) OF THE LANHAM ACT
`
`21.
`
`Opposer repeats and realleges the allegations contained in Paragraphs 1-20
`
`of this Notice of Opposition as if fully set forth herein.
`
`22.
`
`Upon information and belief, Opposer has priority in all respects for the
`
`term “FRESH SCENTS” relative to Applicant as used in conjunction with the field of
`
`scented products and air fresheners.
`
`23.
`
`Upon information and belief, in view of such prior usage rights by
`
`Opposer regarding “FRESH SCENTS” with Opposer’s subject goods and alleged usage
`
`by Applicant of the designation “FRESH SCENTS” on Applicant’s subject goods, there
`
`is a likelihood of confusion, mistake, or deception among customers and potential
`
`customers, within the meaning of Lanham Act § 2(d) (15 U.S.C. § l052(d)).
`
`Consequently, Applicant’s subject ‘998 application for “FRESH SCENTS” is precluded
`
`from registration by § 2(d) of the Lanham Act (15 U.S.C. § l052(d)).
`
`

`
`24.
`
`Since Opposer has priority of use in all respects for its designation
`
`“FRESH SCENTS,” confusion in the trade would potentially result in loss of sales and/or
`
`other damage to the reputation of Opposer. Specifically, any defect, obj ections, or fault
`
`found with Applicant’s subject goods marketed under Applicant’s designation “FRESH
`
`SCENTS” would necessarily reflect adversely upon and seriously injure the reputation
`
`which the Opposer has established for its high quality products marketed under its prior
`
`rights and/or usages involving the “FRESH SCENTS” designation.
`
`25.
`
`If Applicant is granted the registration herein opposed for International
`
`Class 21, Applicant will obtain at least a pr_ima Egg exclusive right to use of the
`
`designation “FRESH SCENTS” relative to International Class 21, which would be a
`
`source of damage and injury to Opposer in view of the at least related nature of the
`
`respective goods of the respective parties, especially in view of Opposer’s priority of use
`
`in all respects of the designation “FRESH SCENTS” relative to Applicant, wherefore
`
`Applicant’s subject ‘998 application should be refused registration on such basis.
`
`IMPROPERLY EXECUTED DECLARATION
`
`26.
`
`Opposer repeats and realleges the allegations contained in Paragraphs 1-25
`
`of this Notice of Opposition as if fully set forth herein.
`
`27.
`
`Upon information and belief, Applicant filed Applicant’s subject ‘998
`
`application on or about July 18, 2008, and included with such ‘998 application a
`
`Declaration executed by Applicant and reading in pertinent part:
`
`“The undersigned, being hereby warned that willful false statements and the like
`
`so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section
`
`1001, and that such willful false statements, and the like, may jeopardize the
`
`

`
`validity of the application or any resulting registration, declares that he/she is
`
`properly authorized to execute this application on behalf of the applicant; he/she
`
`believes the applicant to be the owner of the trademark/service mark sought to be
`
`registered, or, if the application is being filed under 15 U.S.C. Section l05l(b),
`
`he/she believes applicant to be entitled to use such mark in commerce; to the best
`
`of his/her knowledge and belief no other person, firm, corporation, or association
`
`has the right to use the mark in commerce, either in the identical form thereof or
`
`in such near resemblance thereto as to be likely, when used on or in connection
`
`with the goods/services of such other person, to cause confusion, or to cause
`
`mistake, or to deceive; and that all statements made of his/her own knowledge are
`
`true; and that all statements made on information and belief are believed to be
`
`9’
`
`true.
`
`28.
`
`Upon information and belief, Opposer, in connection with various of its
`
`above-referenced commercial activities, has established a variety of rights in conjunction
`
`with use of the mark “FRESH SCENTS” as a trademark, service mark, and/or analogous
`
`usage in a trademark or service mark sense or alternatively in a trade name sense, or use
`
`analogous to trademark, service mark, or trade name usage, in commerce or interstate
`
`commerce, since long prior to the Applicant’s July 17, 2008 filing date of Applicant’s
`
`subj ect ‘998 application, and since long prior to the claim of first use and first use in
`
`commerce of November 2002 as made by Applicant in conjunction with Applicant’s
`
`subject ‘998 application, including in geographic markets and/or submarkets specifically
`
`overlapping those of alleged commercial activities of Applicant.
`
`

`
`29.
`
`Upon information and belief, due to overlapping markets and/or
`
`submarkets of the parties’ respective commercial activities, and due to Opposer’s priority
`
`of use, and because of the specialized nature of the field in which Applicant is a present
`
`and/or potential competitor of Opposer, Applicant may have had knowledge concerning
`
`Opposer and/or Opposer’s prior rights as referenced herein, all prior to execution by
`
`Applicant of the Declaration filed in Applicant’s subj ect ‘998 application, wherefore
`
`Applicant’s subject ‘998 application should be refused registration on such basis.
`
`30.
`
`Upon information and belief, any such prior knowledge of Applicant
`
`concerning Opposer and Opposer’s prior rights as referenced herein, all prior to
`
`execution by Applicant of the Declaration filed in Applicant’s subject ‘998 application,
`
`would be contrary to the pertinent content of such Declaration, and would be improper,
`
`wherefore issuance to Applicant of any registration so obtained on the basis of such an
`
`improper Declaration would itself be improper and would be a source of damage to
`
`Opposer, further wherefore App1icant’s subject ‘998 application should be refused
`
`registration on such basis.
`
`31.
`
`Based on at least the foregoing multiple grounds, Applicant’s subject ‘998
`
`application should be refused registration in view of the statutory requirements of the
`
`Lanham Act, 15 U.S.C § 1050 et seq., and/or the other considerations set forth therein
`
`and herewith.
`
`WHEREFORE, Opposer prays that U.S. Application Serial No. 77/524,998 of
`
`Applicant, Fresh Products, Inc., be rejected and that the alleged designation “FRESH
`
`

`
`SCENTS” be refused registration for “combined dispensers for both liquid soap and air
`
`fresheners” in International Class 21 by Fresh Products, Inc.
`
`Date:
`
`?
`
`Respectfully Submitted,
`
`ON BEHALF OF OPPOSER
`
`GREENLEAF, INC.
`
`BY' ! :4 '5, 1% g
`
`ard M. Moose (Reg. No. 31,226)
`Ri
`arks Workman (Reg. No. 60,382)
`J.
`DORITY & MANNING, P.A.
`
`55 Beattie Place, Suite 1600
`
`Greenville, SC 29601
`(864) 271-1592
`
`

`
`CERTIFICATE OF SERVICE
`
`It is hereby certified that a copy of this NOTICE OF OPPOSITION was served on
`Applicant's counsel of record via United States Postal Service Express Mail "Post Office
`to Addressee" (Airbill No. EV154936733US) on April 7, 2009, as follows:
`
`Richard S. MacMi|lan, Esquire
`MacM|LLAN, SOBANSKI & TODD, LLC
`One Maritime Plaza, Fifth Floor
`720 Water Street
`
`Toledo, OH 43604
`Telephone: 419-255-5900
`
`CHRISTINE P. STANFIELD
`
`(Typed or
`
`rinted name of person mailing paper or fee)
`
`
`(Signature of person mailing paper
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`Attorney Docket No.: GLI-83-M
`
`Our Account No.: 04-1403
`
`Our Customer ID No.: 22827
`
`) )
`
`) )
`
`) )
`
`)
`
`In re Application of:
`
`FRESH PRODUCTS, INC.
`
`Serial No.:
`
`77/524,998
`
`Filed:
`
`July 17, 2008
`
`FRESH SCENTS
`
`For:
`
`Sir:
`
`1.
`
`[
`
`] NOTICE OF APPEAL: Applicant hereby appeals to the Trademark Trial and Appeal Board from the
`Final Refusal dated
`of the Examining Attorney twice/finally refusing Applicant’s
`request for registration, with a fee of $100.00.
`
`BRIEF on appeal in this application is transmitted herewith in triplicate to the Trademark Trial and
`Appeal Board.
`
`An ORAL HEARING is respectfully requested by separate paper within 10 days hereafter.
`
`4-
`
`5.
`
`ll
`
`Reply Brief under Rule 142(b) is transmitted herewith in triplicate.
`
`[X]
`
`NOTICE OF OPPOSITION is transmitted herewith in duplicate and with a fee of $300.00.
`
`The Commissioner is hereby authorized to charge any fee specifically authorized hereafter, or any deficiency in the fee(s)
`filed, or asserted to be filed, or which should have been filed herewith or concerning any paper filed hereafter, and which
`may be required under applicable Rules (deficiencies only) now or hereafter relative to this application and the resulting
`official document or credit any overpayment, to our deposit Account/Order Nos. in the heading hereof for which purpose
`a duplicate copy of this sheet is attached.
`
`Address:
`Post Office Box 1449
`Greenville, SC 29602 USA
`Customer ID No.: 22827
`
`Telephone: 864-271-1592
`Facsimile: 864-233-7342
`
`DORITY & MANNING, ATTORNEYS AT LAW, P.A.
`
`
`Reg.No.: 31226 Date: 04/07/2009
`
`By: RICHARD MOOSE
`"
`
` Signature:
`
`"Express Mail" - Mailing Label Number
`2009
`Date of Deposit
`April 7,
`I hereby certify that this paper, papers attached hereto, and/or fee is being deposited with the United States Postal Service
`"Express Mail Post Office to Addressee" service under 37 CFR 1.10 on the date indicated above and is addressed to
`Commissioner for Trademarks, BOX TTAB FEE, P. O. Box 1451, Alexandria, VA 22313-1451
`
`EV814082196US
`
`CHRISTINE P. STANFIELD
`
`(Typed or printed name of person mailing paper or fee)
`
` ( lgnme Ofpemn mamngpap or fee)
`
`
`
`nmmumuummum\\nmummm
`04-U7-2009