throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1072357
`08/03/2020
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Notice of Opposition
`
`Notice is hereby given that the following party opposes registration of the indicated application.
`
`Opposer Information
`
`Name
`
`Flowers Bakeries Brands LLC
`
`Granted to Date
`of previous ex-
`tension
`
`Address
`
`Attorney informa-
`tion
`
`08/02/2020
`
`1919 FLOWERS CIRCLE
`THOMASVILLE, GA 31757
`UNITED STATES
`
`THEODORE H. DAVIS JR.
`KILPATRICK TOWNSEND & STOCKTON LLP
`1100 PEACHTREE STREET NE, SUITE 2800
`ATLANTA, GA 30309
`UNITED STATES
`Primary Email: tdavis@ktslaw.com
`Secondary Email(s): bjones@ktslaw.com, kteilhaber@ktslaw.com, tmad-
`min@ktslaw.com, nchollet@ktslaw.com
`4048156500
`
`Docket Number
`
`Applicant Information
`
`Application No.
`
`87187620
`
`Publication date
`
`02/04/2020
`
`Opposition Filing
`Date
`
`International Re-
`gistration No.
`
`Applicant
`
`08/03/2020
`
`NONE
`
`Nature's Path Foods Inc.
`9100 VAN HORNE WAY
`RICHMOND, BC, V6X1W3
`CANADA
`
`Opposition Peri-
`od Ends
`
`International Re-
`gistration Date
`
`08/02/2020
`
`NONE
`
`Goods/Services Affected by Opposition
`
`Class 030. First Use: 0 First Use In Commerce: 0
`Opposed goods and services in the class: bread
`
`Grounds for Opposition
`
`Priority and likelihood of confusion
`
`Trademark Act Section 2(d)
`
`Other
`
`Lack of Bona Fide Intent to Use Section 44(e) of
`the Lanham Act, 15 U.S.C. 1126(e)
`
`

`

`Marks Cited by Opposer as Basis for Opposition
`
`U.S. Registration
`No.
`
`1121956
`
`Registration Date
`
`07/10/1979
`
`Application Date
`
`12/30/1976
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NATURE'S OWN
`
`NONE
`
`Class 030. First use: First Use: 1976/08/25 First Use In Commerce: 1976/08/25
`BREAD
`
`U.S. Registration
`No.
`
`1563619
`
`Registration Date
`
`10/31/1989
`
`Application Date
`
`03/03/1989
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NATURE'S OWN
`
`NONE
`
`Class 030. First use: First Use: 1979/10/00 First Use In Commerce: 1979/10/00
`BREADS
`
`U.S. Registration
`No.
`
`1707062
`
`Registration Date
`
`08/11/1992
`
`Application Date
`
`10/03/1991
`
`Foreign Priority
`Date
`
`NONE
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`Goods/Services
`
`NATURE'S OWN
`
`NONE
`
`Class 030. First use: First Use: 1976/08/25 First Use In Commerce: 1976/08/25
`bakery products; namely, bread
`
`Attachments
`
`2020.08.03 Notice of Opposition (87187620).pdf(238762 bytes )
`
`Signature
`
`/Theodore H. Davis Jr./
`
`Name
`
`Date
`
`THEODORE H. DAVIS JR.
`
`08/03/2020
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`FLOWERS BAKERIES BRANDS,
`LLC,
`
`Opposer,
`
`v.
`
`NATURE’S PATH FOODS, INC.,
`
`Applicant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Serial No. 87187620
`
`Mark:
`
`Opposition No. ___________
`
`NOTICE OF PARTIAL OPPOSITION
`
`Opposer Flowers Bakeries Brands, LLC (“Opposer”) will be damaged by the registration
`
`of the NATURE'S PATH ORGANIC mark (“Applicant’s Mark”) underlying application Serial
`
`No. 87187620 (the “Application”) filed by Applicant Nature's Path Foods Inc. (“Applicant”), and
`
`opposes the same for certain goods in International Class 30.
`
`1.
`
`Opposer is a Delaware limited liability company that owns and licenses a
`
`variety of trademarks for use in connection with food items.
`
`2.
`
`Applicant is a foreign entity with a business address listed as 9100 Van Horne
`
`Way, Richmond, British Colombia, Canada V6X1W3.
`
`3.
`
`Opposer is a subsidiary of Flowers Foods, Inc., a leading producer and
`
`marketer of packaged bakery foods in the United States. Flowers Foods, Inc. operates nearly fifty
`
`bakeries that produce breads, buns, rolls, snack cakes, and pastries, which are distributed fresh to
`
`foodservice and retail customers throughout the Eastern, Southeastern, Southwestern, Western,
`
`and mid-Atlantic states.
`
`4.
`
`Since at least as early as 1976, Opposer and its predecessors and licensees
`
`1
`
`

`

`have used the NATURE’S OWN mark in connection with bread, bakery products, and other food
`
`products. During that time, the NATURE’S OWN mark has served as an inherently distinctive
`
`indicator of the origin of goods produced and sold under Opposer’s authority. Opposer is the
`
`owner of numerous incontestable federal registrations of the NATURE’S OWN mark, including
`
`the following:
`
`Reg. No.
`
`1121956
`
`1563619
`
`Mark
`
`Goods
`
`bread
`
`breads
`
`1707062
`
`NATURE’S OWN
`
`bakery products; namely,
`
`bread
`
`These registrations and the common law rights in the NATURE’S OWN mark are collectively
`
`referred to as the “NATURE’S OWN Mark.”
`
`5.
`
`Opposer and its predecessors have expended considerable sums of money in
`
`developing consumer brand recognition for the NATURE’S OWN Mark prior to the filing date
`
`of the Application.
`
`6.
`
`Because of the widespread advertising and promotion by Opposer and its
`
`licensees, Opposer’s NATURE’S OWN Mark had acquired a high degree of recognition, fame,
`
`and distinctiveness as a symbol of the quality of goods offered by Opposer and its licensees
`
`2
`
`

`

`before the filing date of the Application. The public and retail buyers are familiar with and
`
`identify Opposer’s NATURE’S OWN Mark with Opposer and, by reason of this identification,
`
`goods associated with the NATURE’S OWN Mark are understood by the public and trade to be
`
`produced, marketed, and supplied under Opposer’s authority or otherwise derived from Opposer.
`
`7.
`
`Opposer’s NATURE’S OWN Mark is an important factor employed by the
`
`public in identifying the source of Opposer’s and Opposer’s licensees’ products and is distinctive
`
`of those products.
`
`8.
`
`The goods recited in the Application cover inter alia “bread” in International
`
`Class 30 (the “Disputed Goods”). The Disputed Goods are closely related or complementary to
`
`the goods Opposer and Opposer’s licensees have long provided in intrastate and interstate
`
`commerce under the NATURE’S OWN Mark prior to the filing date of the Application. Both
`
`Opposer’s registrations and the Application are unrestricted to customers, channels of
`
`distribution, or advertising media.
`
`Count I – Likelihood of Confusion
`
`9.
`
`Opposer repeats and re-alleges the averments in the paragraphs above as if
`
`fully set forth here.
`
`10.
`
`Applicant filed its Application on September 29, 2016. All of the NATURE’S
`
`OWN Marks were applied for and registered before September 29, 2016. Opposer’s rights to the
`
`NATURE’S OWN Marks therefore predate and are senior to the Application date. Opposer’s
`
`rights are first in time, and there are no issues as to priority or seniority.
`
`11.
`
`Opposer will be damaged by the registration of Applicant’s mark because the
`
`mark so resembles the NATURE’S OWN Mark as to be likely to cause consumer confusion,
`
`mistake, and deception. Persons familiar with the NATURE’S OWN Mark and the goods sold
`
`3
`
`

`

`under the NATURE’S OWN Mark are likely to believe erroneously that the Disputed Goods are
`
`goods of Opposer or Opposer’s licensees or are authorized, licensed, endorsed, or sponsored by
`
`Opposer, and registration of Applicant’s mark for the Disputed Goods is therefore inconsistent
`
`with Opposer’s prior rights in its own NATURE’S OWN Mark and in violation of Section 2(d)
`
`of the Lanham Act, 15 U.S.C. § 1052(d).
`
`12.
`
`Because Opposer enjoys prior use in the NATURE’S OWN Marks in both
`
`intrastate and interstate commerce, and because Opposer’s registrations predate the filing the
`
`Application, the Application should be refused registration for the Disputed Goods under 15
`
`U.S.C. §§ 1052(d) and 1063.
`
`Count II- Lack of Bona Fide Intent to Use
`
`13.
`
`Opposer repeats and re-alleges the averments in the paragraphs above as if
`
`fully set forth here.
`
`14.
`
`Pursuant to Section 44(e) of the Lanham Act, 15 U.S.C. § 1126(e), an
`
`applicant who files a request for extension of protection of an international registration to the
`
`United States must submit a declaration of the applicant’s bona fide intention to use the mark in
`
`commerce in the United States.
`
`15.
`
`Upon information and belief, Applicant lacked a bona fide intent to use
`
`Applicant’s Mark in commerce in the United States in connection with the Disputed Goods
`
`identified in the Application.
`
`16.
`
`Opposer therefore objects to registration of Applicant’s Mark on the ground
`
`that Applicant did not have a bona fide intent to use Applicant’s Mark in commerce in the United
`
`States in connection with the Disputed Goods identified in the Application, and in fact did not
`
`possess such a bona fide intent as of the filing date of the Application.
`
`4
`
`

`

`17.
`
`The opposition fee in the amount of $400 for a notice of opposition against the
`
`Disputed Goods in International Class 30 accompanies this notice. The Commissioner is
`
`authorized to debit Kilpatrick Townsend & Stockton LLP’s deposit account no. 20-1430 if there
`
`is a deficiency in the required fee.
`
`Opposer therefore requests the Board to refuse application Serial No. 87187620 in
`
`International Class 30 for the Disputed Goods and sustain this opposition in Opposer’s favor.
`
`Dated: August 3, 2020
`
`Respectfully submitted,
`
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street
`Suite 2800
`Atlanta, Georgia 30309-4528
`404-815-6500 (ph.)
`404-815-6555 (fax)
`
`/Theodore H. Davis Jr./
`Theodore H. Davis Jr.
`Nichole Davis Chollet
`A. Elizabeth Jones
`
`Attorneys for Opposer
`
`5
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket