Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1217042
`
`Filing date:
`
`06/22/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91271109
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Monster Energy Company
`
`ARI FEINSTEIN
`KNOBBE MARTENS OLSON & BEAR LLP
`1717 PENNSYLVANIA AVENUE. NW, STE. 900
`WASHINGTON, DC 20006
`UNITED STATES
`Primary email: efiling@knobbe.com
`Secondary email(s): MEC.TTAB@knobbe.com
`202-640-6400
`
`Motion to Amend Pleading/Amended Pleading
`
`ARYEH FEINSTEIN
`
`efiling@knobbe.com, MEC.TTAB@knobbe.com
`
`/Ari Feinstein/
`
`06/22/2022
`
`2022-06-22 OPPOSERS MOTION FOR LEAVE TO FILE AMENDED NOTICE
`OF OPPOSI TION - HANB.13228M.pdf(262115 bytes )
`2022-06-22 FIRST AMENDED NOTICE OF OPPOSITION -
`HANB.13228M.pdf(412320 bytes )
`EXS 1-16 FIRST AMENDED NOTICE OF OPPOSITION -
`HANB.13228M.pdf(1845002 bytes )
`2022-06-22 DECLARATION OF AQF ISO OPPOSERS MOTION FOR LEAVE
`TO FILE A MENDED NOTICE OF OPPOSITION - HANB.13228M.pdf(214167
`bytes )
`EX 1 - 2022-05-19 APPLICANTS SUPPLEMENTAL RESPONSES TO OP-
`POSERS ROGS - HANB.13228M.PDF(910779 bytes )
`
`

`

`HANB.13228M
`
`
`TRADEMARK
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`Opposition No.: 91271109
`
`Serial No.: 90/242794
`
`Mark:
`
`
`
`) ) ) ) ) ) ) ) ) ) ) ) )
`
`
`
`Opposer,
`
`
`
`v.
`
`
`MONSTER ENERGY COMPANY,
`
`
`
`
`
`VICTOR RODRIGUEZ,
`
`
`
`
`
`Applicant.
`
`OPPOSER MONSTER ENERGY COMPANY’S MOTION FOR LEAVE TO FILE
`AMENDED NOTICE OF OPPOSITION
`
`Pursuant to Fed. R. Civ. P. 15(a), T.B.M.P. § 507, and 37 C.F.R. § 2.107(a), Opposer
`
`Monster Energy Company (“Opposer”) hereby moves the Board for leave to file an Amended
`
`Notice of Opposition to allege that Victor Rodriguez (“Applicant”) lacked a bona fide intent to
`
`use the applied-for mark
`
`(“Applicant’s Mark”) in connection with the Class 21
`
`goods identified in Applicant’s Application.
`
`I.
`
`STATEMENT OF FACTS
`
`Applicant’s U.S. Trademark Application Serial No. 90/242794 (“the Application”) was
`
`filed on October 8, 2020 based on Applicant’s alleged bona fide intent to use Applicant’s Mark
`
`in interstate commerce under Section 1(b) of the Trademark Act. The Application lists the
`
`following goods and services:
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`
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`- 1 -
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`

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` “Mugs; Plates” in Class 21;
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` “Aprons; Baseball caps and hats; Hoodies; Graphic T-shirts; Short-sleeved or long-
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`sleeved t-shirts” in Class 25; and
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` “Imprinting messages on wearing apparel and mugs” in Class 40.
`
`Opposer filed this Opposition on August 17, 2021 and only opposes registration of
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`Applicant’s Mark for the goods identified in Class 21. Dkt. No. 1, ¶ 1. Opposer’s Notice of
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`Opposition asserted that Applicant’s Mark will likely cause confusion or cause mistake or
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`deceive under Section 2(d) of the Trademark Act with Opposer’s BEAST-inclusive Marks. Id.,
`
`¶ 32.
`
`On November 2, 2021, Opposer served its First Set of Interrogatories and First Set of
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`Requests for the Production of Documents and Things (collectively, “Opposer’s Discovery
`
`Requests”). See Declaration of Ari Feinstein in Support of Opposer’s Motion for Leave to File
`
`Amended Notice of Opposition (“Feinstein Decl.”), ¶ 2. On December 2, 2021, Applicant
`
`served its interrogatory responses. Id., ¶ 3. On February 15, 2022, counsel for Opposer sent a
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`letter to counsel for Applicant regarding deficiencies in Applicant’s responses to Opposer’s
`
`Discovery Requests. Id., ¶ 4. Applicant served supplemental responses and supplemented its
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`document production on May 19, 2022 and May 18, 2022, respectively. Id., ¶ 5.
`
`Applicant’s supplemental responses to Opposer’s First Set of Interrogatories revealed that
`
`Applicant lacked a bona fide intent to use Applicant’s Mark in connection with the Class 21
`
`goods identified in Applicant’s Application at the time Applicant filed Applicant’s Application.
`
`For example, Applicant stated that he does not sell or offer any goods or services under
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`Applicant’s Mark and that Applicant’s Mark has not been used in commerce. Id., ¶ 5, Ex. 1
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`(Interrogatory Nos. 5 and 7). In response to Interrogatory No. 8, which sought a detailed
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`description of “all facts supporting [Applicant’s] assertion made to the [USPTO] that [Applicant]
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`- 2 -
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`

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`intended to use Applicant’s Mark in connection with Applicant’s Goods and Services at the time
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`Applicant’s Application was filed[,]” Applicant cited to a few documents. Id. (Interrogatory No.
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`8). Three of the cited documents were titled “IdeasForBusiness.” Id. The earliest
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`IdeasForBusiness document Applicant cited is dated January 18, 2021, which is more than three
`
`months after Applicant filed Applicant’s Application, and which document is essentially blank.
`
`Id. The two other IdeasForBusiness documents Applicant cited are dated November 16, 2021
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`and November 17, 2021, which is more than one year after Applicant filed Applicant’s
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`Application. Id. Further, both of these documents were created approximately three months
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`after Opposer filed its Notice of Opposition. Id.
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`Opposer noticed the deposition of Applicant, see id., ¶ 6, and conducted the deposition of
`
`Applicant on June 20, 2022. Id. Mr. Rodriguez provided testimony that confirmed what
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`Monster learned from Applicant’s written discovery responses and document production,
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`namely, that Applicant lacked a bona fide intent to use Applicant’s Mark in connection with
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`mugs and plates at the time Applicant filed Applicant’s Application. Id. In fact, Mr.
`
`Rodriguez’s testimony confirmed that Applicant still does not have any firm plans whatsoever
`
`regarding the use of Applicant’s Mark in connection with mugs and plates, including how
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`Applicant’s Mark will be advertised, where Applicant’s Mark will be displayed, and the pricing
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`for such mugs and plates. Id.
`
`II.
`
`ARGUMENT
`
`Applicant Lacked a Bona Fide Intent to Use Applicant’s Mark in Commerce in
`Connection with Applicant’s Class 21 Goods
`
`A.
`
`
`
`In order to register a mark under Section 1(b) of the Lanham Act, the applicant must
`
`verify that it has a bona fide intent to use the mark in commerce at the time of filing. See 15
`
`U.S.C. § 1051(b). An alleged lack of an applicant’s bona fide intent to use its applied-for mark
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`
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`- 3 -
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`

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`in connection with the applied-for goods or services is a proper statutory grounds on which to
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`challenge a trademark application. M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368, 1375 (Fed.
`
`Cir. 2015). “A determination of whether an applicant has a bona fide intention to use the mark in
`
`commerce is an objective determination based on all the circumstances.” L’Oreal S.A. v.
`
`Marcon, 102 U.S.P.Q.2d 1434, 1443 (T.T.A.B. Mar. 20, 2012). The circumstances “must
`
`indicate that the applicant’s intent to use the mark was firm and not merely intent to reserve a
`
`right in the mark.” M. Z. Berger, 787 F.3d at 1376.
`
`The deposition testimony of Applicant revealed that Applicant lacked a bona fide intent
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`to use Applicant’s Mark in connection with mugs and plates in commerce at the time Applicant
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`filed the Application. Feinstein Decl. ¶ 6. Applicant has never used Applicant’s Mark in
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`connection with mugs or plates, despite Applicant having filed the Application more than twenty
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`(20) months ago on October 8, 2020. Id. The only business plan Applicant produced that pre-
`
`dates Monster’s Notice of Opposition does not mention mugs or plates. Id. The business plans
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`Applicant updated after Monster filed its Notice of Opposition, as explained by Mr. Rodriguez in
`
`his deposition, confirm that Applicant never formed any firm plans regarding the use of
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`Applicant’s Mark in connection mugs or plates. Id.
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`It appears that Applicant simply included an expansive list of goods in the Application in
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`the off-chance that Applicant later decided to use Applicant’s Mark in connection with those
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`goods. However, that is insufficient to demonstrate a bona fide intent to use. See, e.g., M. Z.
`
`Berger, 787 F.3d at 1370 (affirming finding of the Board that Applicant merely intended to
`
`reserve a right in a mark and thus lacked the requisite intent).
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`In sum, Applicant lacked the requisite bona fide intent required by Section 1(b) of the
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`Trademark Act at the time it field Applicant’s Application. Opposer respectfully requests that
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`the Board permit Opposer to amend its Notice of Opposition to allege that Applicant is not
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`
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`- 4 -
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`

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`entitled to registration of the Application for this additional reason. See Spirits Int’l, B.V. v. S.S.
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`Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 U.S.P.Q.2d 1545 (T.T.A.B.
`
`2011) (sustaining opposition on the ground that applicant lacked a bona fide intent to use its
`
`mark in connection with at least some goods listed in the opposed application).
`
`Opposer’s Proposed Amendment Will Not Violate Settled Law or Prejudice
`Applicant
`
`B.
`
`
`
`T.B.M.P. § 507.02 states that, once the answer to the pleading has been filed, a party may
`
`amend its pleading by written consent of every adverse party or by leave of the Board. “[T]he
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`Board liberally grants leave to amend pleadings at any stage of a proceeding when justice so
`
`requires, unless entry of the proposed amendment would violate settled law or be prejudicial to
`
`the rights of the adverse party or parties.” T.B.M.P. § 507.02; see also Focus 21 Int’l, Inc. v.
`
`Pola Kasei Kogyo Kabhushiki Kaisha, 22 U.S.P.Q.2d 1316, 1318 (T.T.A.B. 1992) (“Under Fed.
`
`R. Civ. P. 15(a) leave to amend shall be freely given when justice so requires and accordingly the
`
`Board liberally grants leave to amend pleadings when the other party will not be prejudice
`
`thereby.”).
`
`Granting this Motion would not violate settled law. As set forth above, Opposer has a
`
`basis to allege that Applicant lacked a bona fide intent to use Applicant’s Mark in connection
`
`with Applicant’s Goods at the time Applicant filed Applicant’s Application.
`
`Granting this Motion also would not prejudice Applicant. Any documents and
`
`information relating to Applicant’s alleged intent to use Applicant’s Mark in connection with
`
`Applicant’s Goods is in the possession of Applicant. Moreover, any such relevant documents
`
`and information should have already been provided in response to Opposer’s Discovery
`
`Requests. Thus, no further discovery would be required if the Board grants this Motion.
`
`
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`- 5 -
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`

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`Finally, Opposer filed this Motion prior to the opening of its testimony period and soon
`
`after learning facts from Applicant’s supplemental discovery responses and document production
`
`and during the recent deposition of Applicant that Applicant lacked a bona fide intent to use
`
`Applicant’s Mark in connection with the Class 21 goods identified in Applicant’s Application.
`
`Thus, the Motion is timely. See Commodore Elecs., Ltd. v. CBM Kabushiki Kaisha, 26
`
`U.S.P.Q.2d 1503, 1504, 1508 (T.T.A.B. 1993) (granting opposer’s motion for leave to amend its
`
`notice of opposition where opposer learned during discovery facts supporting an allegation that
`
`applicant did not have a bona fide intention to use the applied-for mark); U.S. Olympic Comm. V.
`
`O-M. Bread, Inc., 26 U.S.P.Q.2d 1221 (T.T.A.B. 1993); Focus 21 Int’l, 22 U.S.P.Q.2d 1316,
`
`1318; Hurley Int’l LLC v. Paul and JoAnne Volta, 82 U.S.P.Q.2d 1339, 1341 (T.T.A.B. 2007).
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`III. CONCLUSION
`
`For the foregoing reasons, Opposer respectfully requests that the Board grant Opposer
`
`leave to amend its Notice of Opposition. A copy of the proposed Amended Notice of Opposition
`
`is attached hereto as Exhibit A, which includes new proposed Paragraphs 34-36.
`
`
`
`
`
`
`Dated: June 22, 2022
`
`
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`Respectfully submitted,
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`
`
`
`
`
`By: /Ari Feinstein/
`
`Steven J. Nataupsky
` Matthew S. Bellinger
`
`2040 Main Street, Fourteenth Floor
`
`Irvine, CA 92614
`
`(949) 760-0404
`
` Aryeh Feinstein
`
`1717 Pennsylvania Ave. N.W., Ste. 900
` Washington D.C. 20006
`
`(202) 640-6400
`
`efiling@knobbe.com
`
` Attorneys for Opposer,
`MONSTER ENERGY COMPANY
`
`
`
`- 6 -
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`

`

`
`
`
`
`I hereby certify that a true and complete copy of the foregoing OPPOSER MONSTER
`
`CERTIFICATE OF SERVICE
`
`ENERGY COMPANY’S MOTION FOR LEAVE TO FILE AMENDED NOTICE OF
`
`OPPOSITION has been served on Applicant’s counsel of record on June 22, 2022 via electronic
`
`mail to:
`
`Signature:
`Signature:
`
`
`Oliver Edwards
`LAW OFFICE OF OLIVER EDWARDS LLC
`tm-email@edwardslaw.pro
`oliver@edwardslaw.pro
`
`
`
`
`
`
`Name: Anokhi Destiche
`
`Date: June 22, 2022
`
`
`
`
`
`
`
`55717505
`
`
`
`- 7 -
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`

`

`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`HANB.13228M
`
`
`TRADEMARK
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Opposition No.: 91271109
`
`Serial No.: 90/242794
`
`Mark:
`
`) ) ) ) ) ) ) ) ) ) ) ) )
`
`
`
`Opposer,
`
`
`
`v.
`
`
`MONSTER ENERGY COMPANY,
`
`
`
`
`
`VICTOR RODRIGUEZ,
`
`
`
`
`
`Applicant.
`
`
`
`
`
`
`
`
`
`
`
`FIRST AMENDED NOTICE OF OPPOSITION
`
`
`Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, VA 22313-1451
`
`
`
`Monster Energy Company, a Delaware corporation, located and doing business at
`
`1 Monster Way, Corona, California 92879, (“Opposer”) believes that it will be damaged by
`
`registration of U.S. Trademark Application Serial No 90/242794 (the “Application”) for the
`
`mark
`
` (“Applicant’s Mark”) filed by Victor Rodriguez (“Applicant”) and
`
`therefore opposes the same.
`
`As grounds for opposition, it is alleged:
`
`- 1 -
`
`
`
`
`
`

`

`1.
`
`By the Application filed on October 8, 2020, Applicant seeks to obtain registration
`
`on the Principal Register of the trademark
`
` for “mugs; plates” in International
`
`Class 21, “aprons; baseball caps and hats; hoodies; graphic t-shirts; short-sleeved or long-sleeved
`
`t-shirts” in International Class 25, and “imprinting messages on wearing apparel and mugs” in
`
`International Class 40 based on Applicant’s alleged intent to use the mark in interstate commerce.
`
`Opposer only opposes registration of Applicant’s Mark for the goods identified in International
`
`Class 21 (“Applicant’s Goods”).
`
`2.
`
`Since at least 2002, long before the filing date of the Application, Opposer has
`
`been, and still is, engaged in the development, marketing and sale of beverages, nutritional
`
`supplements, clothing, and other products in connection with Opposer’s UNLEASH THE
`
`BEAST!® mark. Examples of Opposer’s use of its UNLEASH THE BEAST!® mark are shown
`
`below:
`
`
`
`
`
`- 2 -
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`

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`3.
`
`In addition to Opposer’s use of its UNLEASH THE BEAST!® mark, Opposer has
`
`expanded its use to include other BEAST-inclusive marks, including, for example, HYDRATE
`
`THE BEAST!®, UNLEASH THE NITRO BEAST!®, UNLEASH THE ULTRA BEAST!®,
`
`PUMP UP THE BEAST!®, REHAB THE BEAST!®, and UNLEASH THE SALTY BEAST!®
`
`(collectively, the “BEAST-inclusive Marks”) in connection with its line of beverages.
`
`4.
`
`Since at least as early as 2002, Opposer has continuously used its UNLEASH
`
`THE BEAST!® mark on almost all of the containers of its best-selling original Monster Energy®
`
`drink. Since at least as early as 2003, Opposer has continuously used its UNLEASH THE
`
`BEAST!® mark on almost all of the containers of its Lo-Carb Monster Energy® drinks and has
`
`also used the mark on additional lines of drinks since that time. Since at least as early as 2009,
`
`Opposer has continuously used its UNLEASH THE NITRO BEAST!® mark in connection with its
`
`line of drinks containing nitrous oxide, which currently consists of the Monster Maxx® line of
`
`drinks. Since at least as early as 2011, Opposer has continuously used its REHAB THE BEAST!®
`
`mark on the containers of its line of Monster Rehab® drinks. Since at least as early as 2013,
`
`Opposer has continuously used its UNLEASH THE ULTRA BEAST!® mark on the containers of
`
`its line of Monster Energy Ultra® drinks. Since at least as early as 2013, Opposer has continuously
`
`used its PUMP UP THE BEAST!® mark on the containers of its line of Muscle Monster® drinks.
`
`Since at least as early as 2017, Opposer has continuously used its HYDRATE THE BEAST!® mark
`
`on the containers of its line of Monster Hydro® drinks. Since at least as early as 2018, Opposer has
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`continuously used its UNLEASH THE SALTY BEAST!® mark on containers of its Juice
`
`Monster® drinks.
`
`5.
`
`Since at least before the filing date of the Application, Opposer’s BEAST-
`
`inclusive Marks have been and continue to be the subject of substantial and continuous
`
`marketing and promotion by Opposer in connection with its beverages, nutritional supplements,
`
`
`
`- 3 -
`
`

`

`clothing, and other products. Opposer has and continues to widely market and promote its
`
`BEAST-inclusive Marks to consumers by, for example, displaying the UNLEASH THE
`
`BEAST!® mark or one or more of the BEAST-inclusive Marks on merchandise and product
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`samplings; extensively on billions of cans of beverages and nutritional supplements; on
`
`promotional and point of sale materials; in magazines and other industry publications; on the
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`monsterenergy.com website, monsterarmy.com website, and other Internet websites, and social
`
`media sites; at trade shows, concert tours, and other live events; and through the sponsorship of
`
`athletes.
`
`6.
`
`There is a huge demand for clothing, gear, and other merchandise bearing
`
`Opposer’s UNLEASH THE BEAST!® mark. Monster has entered into license agreements with
`
`several manufacturers, giving them a license to produce and sell clothing and other products that
`
`bear Opposer’s UNLEASH THE BEAST!® mark. In the United States, Monster’s licensees have
`
`sold licensed goods bearing Opposer’s UNLEASH THE BEAST!® mark to consumers in all 50
`
`states through their own websites and through nationwide retailers. Those nationwide retailers
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`have also sold Monster’s licensed goods bearing Opposer’s UNLEASH THE BEAST!® mark
`
`through their own websites. These licensees also sell the licensed products bearing the
`
`UNLEASH THE BEAST!® mark throughout the world including on websites, in retail stores,
`
`and/or at sporting events.
`
`7.
`
`By virtue of Opposer’s continuous and substantial use, the BEAST-inclusive Marks
`
`have become famous identifiers of Opposer such that consumers have come to recognize a family
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`of BEAST-inclusive Marks with which Opposer markets and sells its goods and services.
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`Opposer’s BEAST-inclusive Marks have been used and advertised in such a manner so that the
`
`public associates the distinctive BEAST element of Opposer’s BEAST-inclusive Marks as an
`
`indicator of source of Opposer’s goods and services.
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`
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`- 4 -
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`

`

`8.
`
`By virtue of Opposer’s continuous and substantial use, Opposer’s BEAST-inclusive
`
`Marks have developed into well-known identifiers of Opposer and its goods and services since long
`
`before the filing date of the Application. As a result, Opposer has built up, at great expense and
`
`effort, valuable goodwill in its BEAST-inclusive Marks and has developed strong common law
`
`rights in the marks. Opposer relies on its common law rights in its BEAST-inclusive Marks,
`
`which rights predate the filing date of the Application.
`
`9.
`
`In addition to Opposer’s common law rights, Opposer owns and relies on the
`
`following registrations:
`
`Mark
`
`Goods/Services
`
`Registration
`No.
`4,975,822
`
`UNLEASH THE
`BEAST!
`
`First Use
`Date
`2002
`
`Filing Date Registration
`Date
`6/14/2016
`
`3/7/2014
`
`4/16/2002
`
`12/18/2002
`
`9/30/2003
`
`1/16/2019
`
`7/30/2019
`
`Cl. 5
`4/16/2002
`Cl. 20
`12/2/2017
`Cl. 43
`2/3/2016
`
`3/22/2006
`(all classes)
`
`3/14/2018
`
`12/3/2019
`
`Cl. 25 clothing, namely,
`tops, shirts, t-shirts, hooded
`sweatshirts, sweat shirts
`Cl. 32 fruit juice drinks,
`soft drinks, carbonated soft
`drinks and soft drinks
`enhanced with vitamins,
`minerals, nutrients, amino
`acids and/or herbs
`Cl. 5 nutritional
`supplements in liquid form
`Cl. 20 furniture; chairs;
`gaming chair
`Cl. 43 bar services; café
`services; mobile restaurant
`services; restaurant
`services; mobile café
`services for providing food
`and drink
`Cl. 35 promoting goods
`and services in the sports,
`motorsports, electronic
`sports, and music industries
`through the distribution of
`printed, audio and visual
`promotional material;
`promoting sports,
`electronic sports and music
`events, performances and
`competitions for others
`Cl. 41 entertainment
`services in the nature of
`
`2,769,364
`
`UNLEASH THE
`BEAST!
`
`5,820,901
`
`UNLEASH THE
`BEAST!
`
`5,927,420
`
`UNLEASH THE
`BEAST!
`
`
`
`- 5 -
`
`

`

`Registration
`No.
`
`Mark
`
`Goods/Services
`
`First Use
`Date
`
`Filing Date Registration
`Date
`
`sporting events and
`competitions, electronic
`sporting events and
`competitions, and music
`performances and events
`Cl. 30 ready to drink tea,
`iced tea and tea based
`beverages; ready to drink
`flavored tea, iced tea and
`tea based beverages
`Cl. 32 non-alcoholic
`beverages, namely, energy
`drinks, sports drinks and
`fruit juice drinks; all the
`foregoing enhanced with
`vitamins, minerals,
`nutrients, proteins, amino
`acids and/or herbs
`Cl. 32 non-alcoholic
`beverages, namely, energy
`drinks, soft drinks, sports
`drinks, and flavored
`waters; drinking water,
`namely, water enhanced
`with vitamins, nutrients,
`proteins, and/or amino
`acids
`Cl. 5 nutritional
`supplements in liquid form;
`vitamin fortified beverages
`Cl. 29 dairy-based
`beverages; dairy-based
`energy shakes
`Cl. 30 chocolate-based
`shakes for boosting energy;
`ready to drink chocolate-
`based beverages
`Cl. 32 non-alcoholic
`beverages, namely, non-
`alcoholic and non-
`carbonated drinks
`enhanced with vitamins,
`minerals, nutrients,
`proteins, amino acids
`and/or herbs; non-
`carbonated energy or sports
`drinks
`Cl. 32 non-alcoholic
`beverages, namely,
`
`4,336,329
`
`REHAB THE
`BEAST!
`
`5,402,465
`
`HYDRATE THE
`BEAST!
`
`4,482,659
`
`PUMP UP THE
`BEAST!
`
`4,482,660
`
`PUMP UP THE
`BEAST!
`
`4,542,107
`
`PUMP UP THE
`BEAST!
`
`4,546,402
`
`PUMP UP THE
`BEAST!
`
`4,394,044
`
`UNLEASH THE
`NITRO BEAST!
`
`
`
`- 6 -
`
`3/2/2011
`
`11/3/2010
`
`5/14/2013
`
`3/1/2017
`
`6/16/2016
`
`2/13/2018
`
`3/18/2013
`
`5/15/2013
`
`2/11/2014
`
`3/18/2013
`
`5/15/2013
`
`2/11/2014
`
`3/18/2013
`
`5/15/2013
`
`6/3/2014
`
`3/18/2013
`
`5/15/2013
`
`6/10/2014
`
`7/8/2009
`
`12/14/2010
`
`8/27/2013
`
`

`

`Registration
`No.
`
`Mark
`
`Goods/Services
`
`First Use
`Date
`
`Filing Date Registration
`Date
`
`5,622,925
`
`UNLEASH THE
`NITRO BEAST!
`
`5,628,025
`
`REHAB THE
`BEAST!
`
`5,633,094
`
`UNLEASH THE
`ULTRA
`BEAST!
`
`5,783,086
`
`UNLEASH THE
`SALTY
`BEAST!
`
`4,371,544
`
`UNLEASH THE
`ULTRA
`BEAST!
`
`carbonated soft drinks;
`carbonated drinks
`enhanced with vitamins,
`minerals, nutrients,
`proteins, amino acids
`and/or herbs; carbonated
`energy or sports drinks
`Cl. 5 nutritional energy
`supplements in liquid form;
`nutritional supplement
`beverages containing
`vitamins
`Cl. 5 nutritional energy
`supplements in liquid form;
`nutritional supplement
`beverages containing
`vitamins
`Cl. 5 nutritional energy
`supplements in liquid form;
`nutritional supplement
`beverages containing
`vitamins
`Cl. 32 non-alcoholic
`beverages, namely, energy
`drinks, soft drinks, sports
`drinks, and fruit juice
`drinks
`Cl. 32 non-alcoholic
`beverages, namely,
`carbonated soft drinks;
`carbonated drinks
`enhanced with vitamins,
`minerals, nutrients,
`proteins, amino acids
`and/or herbs; carbonated
`energy drinks and sports
`drinks
`
`7/8/2009
`
`12/14/2010
`
`12/4/2018
`
`3/2/2011
`
`11/3/2010
`
`12/11/2018
`
`8/30/2012
`
`11/19/2012
`
`12/18/2018
`
`8/2018
`
`4/13/2018
`
`6/18/2019
`
`8/30/2012
`
`11/19/2012
`
`7/23/2013
`
`
`10.
`
`Opposer owns and relies on U.S. Trademark Registration No. 4,975,822 (the
`
`“’822 Registration”) for the mark UNLEASH THE BEAST!® for “clothing, namely, tops, shirts,
`
`t-shirts, hooded sweatshirts, sweat shirts” in International Class 25, which registration issued
`
`June 14, 2016 and is based on an application filed in the United States Patent and Trademark
`
`Office (“PTO”) on March 7, 2014. The filing date of Opposer’s ’822 Registration is prior to the
`
`
`
`- 7 -
`
`

`

`filing date of the Application. True and correct copies of the specifics of the ’822 Registration
`
`obtained from the PTO’s TESS and Assignment databases are attached hereto as Exhibit 1 and
`
`made of record.
`
`11.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`2,769,364 (the “’364 Registration”) for the mark UNLEASH THE BEAST!® for “fruit juice
`
`drinks, soft drinks, carbonated soft drinks and soft drinks enhanced with vitamins, minerals,
`
`nutrients, amino acids and/or herbs” in International Class 32, which registration issued September
`
`30, 2003 and is based on an application filed in the PTO on December 18, 2002. The filing date of
`
`Opposer’s ’364 Registration is prior to the filing date of the Application. True and correct copies
`
`of the specifics of the ’364 Registration obtained from the PTO’s TESS and Assignment
`
`databases are attached hereto as Exhibit 2 and made of record.
`
`12.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,820,901 (the
`
`“’901 Registration”) for the mark UNLEASH THE BEAST!® for “nutritional supplements in
`
`liquid form” in International Class 5, “furniture; chairs; gaming chair” in International Class 20, and
`
`“bar services; café services; mobile restaurant services; restaurant services; mobile café services for
`
`providing food and drink” in International Class 43, which registration issued July 30, 2019 and is
`
`based on an application filed in the PTO on January 16, 2019. The filing date of Opposer’s ’901
`
`Registration is prior to the filing date of the Application. True and correct copies of the specifics
`
`of the ’901 Registration obtained from the PTO’s TESS and Assignment databases are attached
`
`hereto as Exhibit 3 and made of record.
`
`13.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,927,420 (the
`
`“’420 Registration”) for the mark UNLEASH THE BEAST!® for “promoting goods and services
`
`in the sports, motorsports, electronic sports, and music industries through the distribution of
`
`printed, audio and visual promotional material; promoting sports, electronic sports and music
`
`
`
`- 8 -
`
`

`

`events, performances and competitions for others” in International Class 35 and “entertainment
`
`services in the nature of sporting events and competitions, electronic sporting events and
`
`competitions, and music performances and events” in International Class 41, which registration
`
`issued December 3, 2019 and is based on an application filed in the PTO on March 14, 2018.
`
`The filing date of Opposer’s ’420 Registration is prior to the filing date of the Application. True
`
`and correct copies of the specifics of Opposer’s ’420 Registration obtained from the PTO’s TESS
`
`and Assignment databases are attached hereto as Exhibit 4 and made of record.
`
`14.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,336,329 (the “’329 Registration”) for the mark REHAB THE BEAST!® for “ready to drink tea,
`
`iced tea and tea based beverages; ready to drink flavored tea, iced tea and tea based beverages”
`
`in International Class 30 and “non-alcoholic beverages, namely, energy drinks, sports drinks and
`
`fruit juice drinks; all the foregoing enhanced with vitamins, minerals, nutrients, proteins, amino
`
`acids and/or herbs” in International Class 32, which registration issued May 14, 2013 and is based
`
`on an application filed in the PTO on November 3, 2010. The filing date of Opposer’s ’329
`
`Registration is prior to the filing date of the Application. True and correct copies of the specifics
`
`of Opposer’s ’329 Registration obtained from the PTO’s TESS and Assignment databases are
`
`attached hereto as Exhibit 5 and made of record.
`
`15.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,402,465
`
`(the “’465 Registration”) for the mark HYDRATE THE BEAST!® for “non-alcoholic beverages,
`
`namely, energy drinks, soft drinks, sports drinks, and flavored waters; drinking water, namely,
`
`water enhanced with vitamins, nutrients, proteins, and/or amino acids” in International Class 32,
`
`which registration issued February 13, 2018 and is based on an application filed in the PTO on
`
`June 16, 2016. The filing date of Opposer’s ’465 Registration is prior to the filing date of the
`
`Application. True and correct copies of the specifics of Opposer’s ’465 Registration obtained
`
`
`
`- 9 -
`
`

`

`from the PTO’s TESS and Assignment databases are attached hereto as Exhibit 6 and made of
`
`record.
`
`16.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,482,659 (the “’659 Registration”) for the mark PUMP UP THE BEAST!® for “nutritional
`
`supplements in liquid form; vitamin fortified beverages” in International Class 5, which
`
`registration issued February 11, 2014 and is based on an application filed in the PTO on May 15,
`
`2013. The filing date of Opposer’s ’659 Registration is prior to the filing date of the Application.
`
`True and correct copies of the specifics of Opposer’s ’659 Registration obtained from the PTO’s
`
`TESS and Assignment databases are attached hereto as Exhibit 7 and made of record.
`
`17.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,482,660 (the “’660 Registration”) for the mark PUMP UP THE BEAST!® for “dairy-based
`
`beverages; dairy-based energy shakes” in International Class 29, which registration issued
`
`February 11, 2014 and is based on an application filed in the PTO on May 15, 2013. The filing
`
`date of Opposer’s ’660 Registration is prior to the filing date of the Application. True and correct
`
`copies of the specifics of Opposer’s ’660 Registration obtained from the PTO’s TESS and
`
`Assignment databases are attached hereto as Exhibit 8 and made of record.
`
`18.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,542,107 (the “’107 Registration”) for the mark PUMP UP THE BEAST!® for “chocolate-based
`
`shakes for boosting energy; ready to drink chocolate-based beverages” in International Class 30,
`
`which registration issued June 3, 2014 and is based on an application filed in the PTO on May 15,
`
`2013. The filing date of Opposer’s ’107 Registration is prior to the filing date of the Application.
`
`True and correct copies of the specifics of Opposer’s ’107 Registration obtained from the PTO’s
`
`TESS and Assignment databases are attached hereto as Exhibit 9 and made of record.
`
`
`
`
`
`- 10 -
`
`

`

`19.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,546,402 (the “’402 Registration”) for the mark PUMP UP THE BEAST!® for “non-alcoholic
`
`beverages, namely, non-alcoholic and non-carbonated drinks enhanced with vitamins, minerals,
`
`nutrients, proteins, amino acids and/or herbs; non-carbonated energy or sports drinks” in
`
`International Class 32, which registration issued June 10, 2014 and is based on an application
`
`filed in the PTO on May 15, 2013. The filing date of Opposer’s ’402 Registration is prior to the
`
`filing date of the Application. True and correct copies of the specifics of Opposer’s ’402
`
`Registration obtained from the PTO’s TESS and Assignment databases are attached hereto as
`
`Exhibit 10 and made of record.
`
`20.
`
`Opposer owns and relies on incontestable U.S. Trademark Registration No.
`
`4,394,044 (the “’044 Registration”) for the mark UNLEASH THE NITRO BEAST!® for “non-
`
`alcoholic beverages, namely, carbonated soft drinks; carbonated drinks enhanced with vitamins,
`
`minerals, nutrients, proteins, amino acids and/or herbs; carbonated energy or sports drinks” in
`
`International Class 32, which registration issued August 27, 2013 and is based on an application
`
`filed in the PTO on December 14, 2010. The filing date of Opposer’s ’044 Registration is prior to
`
`the filing date of the Application. True and correct copies of the specifics of the ’044
`
`Registration obtained from the PTO’s TESS and Assignment databases are attached hereto as
`
`Exhibit 11 and made of record.
`
`21.
`
`Opposer owns and relies on U.S. Trademark Registration No. 5,622,925
`
`(the “’925 Registration”) for the mark UNLEASH THE NITRO BEAST!® for “nutritional
`
`supplements in liquid form; nutritional supplement beverages containing vitamins” in
`
`International Class 5, which registration issued December 4, 2018 and is based on an application
`
`filed in the PTO on December 14, 2010. The filing date of Opposer’s ’925 Registration